Lawyers for James Comey and Letitia James have asked a federal judge to dismiss the criminal cases filed against them, claiming the administration of President Donald Trump illegally installed the prosecutor who brought the charges.
On Thursday, US District Judge Cameron McGowan Currie heard their petition in Alexandria, Virginia, as the two defendants seek to have their cases tossed before they reach trial.
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Both Comey and James are considered prominent critics of President Trump, and they have argued that the charges against them are a form of political retribution.
Thursday’s petition concerned the role of US Attorney Lindsey Halligan in the two indictments.
Halligan, an insurance lawyer who was formerly part of Trump’s personal legal team, was appointed to the role of US attorney for the Eastern District of Virginia on an interim basis.
US attorneys are the top federal prosecutors in their districts, and to be appointed on a permanent basis, nominees must first be confirmed by the Senate.
Halligan, however, arrived at her role under unusual circumstances. Her predecessor, Erik Siebert, had been forced out in September amid pressure from President Trump.
Interim US attorneys may only serve a period of 120 days, after which point federal judges decide who can stay in the role. Siebert had gotten that approval. Halligan had not. It was instead the Department of Justice that named Halligan to the position of interim US attorney.
Lawyers for Comey and James have therefore maintained that Halligan’s appointment as US attorney was invalid.
“The only thing that matters is whether Ms Halligan had a proper appointment when she stood before the grand jury, and she did not,” Ephraim McDowell, one of Comey’s lawyers, said on Thursday.
The Justice Department, however, has argued that the law does not prevent the appointments of successive interim US attorneys, nor does any ambiguity on the matter render Halligan’s indictments invalid.
Justice Department lawyer Henry Whitaker called the concerns, at best, a “paperwork error” — and not a reason to throw out the charges.
Halligan’s appointment in September corresponded with a series of indictments against Trump rivals and critics, including James — a former director of the Federal Bureau of Investigation (FBI) — and James, the attorney general of New York state.
Comey was indicted on September 25 for allegedly making false statements and obstructing a congressional proceeding. The case against him focuses on whether he lied to senators during his 2020 testimony about the FBI’s investigation into alleged Russian election interference in 2016.
Comey has pleaded not guilty to the charges.
New York Attorney General Letitia James has likewise denied any wrongdoing in her case. On October 9, she was indicted on one count of bank fraud and one count of making a false statement to a financial institution, both of which carry a maximum of 30 years in prison.
A third Trump critic, former national security adviser, John Bolton, was also indicted on October 16 on charges related to the alleged mishandling of classified documents. He, too, has pleaded not guilty.
Bolton was not part of Thursday’s court hearing.
Lawyers for Bolton, Comey and James have separately argued that the prosecutions are improperly vindictive and motivated by the president’s personal vendettas towards their clients.
Trump had openly called for the Comey and James indictments in September, addressing a Truth Social post to Attorney General Pam Bondi that blasted the Justice Department for “all talk, no action”.
“What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done,” he wrote on September 20.
He also denounced Siebert for failing to bring cases against James and Comey, while praising Halligan.
“There is a GREAT CASE, and many lawyers, and legal pundits, say so,” Trump wrote. “We can’t delay any longer, it’s killing our reputation and credibility.”
At Thursday’s hearing, Currie did not immediately rule from the bench but said she expects to decide by Thanksgiving.
Currie did, however, express scepticism about the Justice Department’s case.
She told the court that she had not been provided with a full transcript of the grand jury proceeding that led to Comey’s indictment.
The judge also noted that for part of the day of the Comey indictment — from 4:28pm local time until the moment when the indictment was returned — there was “no court reporter present” to take notes on the proceedings.
That leaves a gap in the documentation of the grand jury’s activities, Currie explained.
She indicated that it also creates a dilemma with one of the Justice Department’s arguments: that Attorney General Bondi had ratified the Comey indictment, along with Halligan.
“It’s become obvious to me that the attorney general could not have reviewed” the missing portion of the transcript, Currie said.
In a separate complaint (PDF) earlier this week, the watchdog group Campaign for Accountability also asked state bar authorities in Florida and Virginia to investigate Halligan over alleged violations of professional conduct.
“Ms. Halligan’s actions appear to constitute an abuse of power and serve to undermine the integrity of the Department of Justice (DOJ) and erode public confidence in the legal profession and the fair administration of justice,” the group stated in its complaint.
Campaign for Accountability pointed out that, while Siebert refused to indict Comey and James, Halligan proceeded to do so despite scant evidence.
It also pointed out irregularities in how she procured the indictments from the grand juries involved.
“In violation of customary practice, no career prosecutors from the US Attorney’s Office participated, and only 14 of the 23 grand jurors who heard the presentation voted to indict Mr. Comey,” the complaint reads.
It accuses Halligan of appearing to have “made false statements of material fact to both the grand jury and the district court” in both Comey’s and James’s cases.
