On Friday, the Justice Division seen its intent to attraction in US v. Comey and US v. James. The federal government will try to resuscitate the fees towards Trump’s enemies — regardless of the various, apparent defects in each circumstances! — by arguing that it can, too let Lindsey Halligan LARP as US Lawyer for the Japanese District of Virginia.
In some sense, the DOJ had no alternative. The circumstances have been dismissed on November 24 when a decide disqualified Halligan, a Florida insurance coverage lawyer beforehand tasked with de-woke-ifying the Smithsonian. Since then, “her” workplace failed twice to re-indict James and received locked out of the Comey proof totally. With no attraction of the disqualification, judges in EDVA began to make irate noises about Halligan persevering with to carry herself out because the US Lawyer. Clearly the federal government needed to make a transfer, or threat the district’s judges making it for them.
And they also determined to kick this dented can down the street to Richmond, giving a fifth court docket the chance to clarify that no, the president can not evade Senate affirmation for US Attorneys with a sequence of ONE WEIRD PROCEDURAL TRICKS.
The cosplay attorneys
Choose Cameron Currie dominated that 28 USC § 546 permits the president to make one, and just one, interim appointment as US Lawyer in any given federal district, after which the place might solely be crammed by a Senate-confirmed nominee or a judicially-installed placeholder. Trump successfully used up that appointment on Halligan’s predecessor Erik Seibert, who was pushed out for refusing to indict Comey and James, and so Halligan’s appointment was at all times a nullity.
Courts in New Jersey, Nevada, and California, in addition to the Third Circuit have uniformly rejected the federal government’s argument that § 546 permits for successive interim appointments. In these circumstances, although, the challenged prosecutions survived due to the presence of different, duly appointed Assistant US Attorneys. Right here, Halligan secured the indictments on her personal, and so the circumstances have been dismissed when she was disqualified.
Choose Currie additionally rubbished the suggestion that Lawyer Common Pam Bondi may retroactively ratify Halligan’s actions, both by fiat or by calling her a “particular lawyer” and purporting to backdate the appointment. It’s not even clear that Halligan is legally serving as a particular lawyer, for the reason that appointment order on Halloween, which purported to enter impact retroactively six weeks earlier than, has been declared invalid. A rational lawyer basic would have raced to signal a second order, re-appointing Halligan professionalspectively. However nothing about that is rational so ¯_(ツ)_/¯
Bondi vowed to attraction, however that’s not what occurred … at the very least not instantly.
As a substitute, Halligan’s workplace tried a number of instances to re-indict James. Assistant US Lawyer Roger Keller, seconded to EDVA from the Japanese District of Missouri, received no-billed in each Norfolk and Alexandria as he tried to copy Halligan’s success with the unique grand jury. Just like the Comey case (the place one presentation yielded three totally different, signed indictments) Keller’s presentment in Alexandria appears to have been spectacularly botched. Someway the no-bill received filed on the general public docket, revealing that the DOJ had deserted its idea that James collected “1000’s” of {dollars} of hire on the disputed property. Keller has now returned to Missouri, a tacit admission that the trouble to deliver new costs towards James hit a brick wall.
Within the Comey case, his erstwhile lawyer Daniel Richman boxed the federal government out of the proof by suing to get his exhausting drives again. Disadvantaged of the fabric utilized in its case in chief, the DOJ had little hope of re-indicting the previous FBI director.
And in the meantime judges in EDVA have been beginning to grumble about Halligan persevering with to signal paperwork as “US Lawyer,” even after her disqualification. Choose Michael Nachmanoff, who presided over the Comey case, refused to just accept a submitting which described her as US Lawyer, noting that the Justice Division hadn’t appealed the disqualification and was thus sure by Choose Currie’s ruling. The federal government protests that it has an advisory opinion from the Workplace of Authorized Counsel saying in any other case, though it declined to make that opinion out there to the court docket.
After the Third Circuit dominated that her appointment was unlawful, Habba lastly tapped out, together with the illegally put in US Lawyer for Delaware.
“That’s the right place, for my part,” sniffed Choose Leonie Brinkema in EDVA, confronted with one more doc bearing Halligan’s signature.
And so, with the 30-day clock ticking to note an attraction and no lifelike path to re-indicting Trump’s nemeses, the DOJ opted to attraction Choose Currie’s rulings, if solely to supply Halligan a fig leaf of legitimacy as she continues to squat within the workplace.
From the facility to fireplace to the facility to rent
Tapping out on the Comey and James circumstances could be admitting defeat, and so Trump doubled down, forwarding Halligan’s nomination to the Senate for affirmation. He is aware of this nomination is DOA due to the blue slip rule, since Virginia’s Democratic Senators Mark Warner and Tim Kaine are by no means going to provide her their blessings.
Notably, the federal government has not but petitioned the Supreme Courtroom for certiorari within the Third Circuit’s Habba ruling. However this dispute tees up what could be a serious locus of battle within the coming yr.
At backside this can be a struggle over the bounds of Trump’s energy to remake the chief department. This previous yr, the Supreme Courtroom allowed the president to fireplace actually anybody he preferred. From profession civil servants to non-partisan board members put in by Congress, nobody was spared. The Courtroom’s six conservative justices fortunately shredded legal guidelines and precedents that may have impeded Trump’s capability to fireplace each professional and non-partisan federal bureaucrat who might need impeded his plot to show the chief department right into a partisan weapon.
However hollowing out the federal forms will solely get Trump thus far. He’ll want to exchange these fired officers with MAGA warriors to take revenge on his enemies and enact the Undertaking 2025 agenda. Up to now, the GOP-controlled Senate has confirmed just about each partisan ghoul Trump put ahead. However the Senate has its limits, as Judiciary Chair Chuck Grassley’s refusal to put off blue slips demonstrates. And even with a supine Senate, Trump’s nonetheless going through a serious backlog of nominees.
In consequence, administration officers routinely maintain a number of job titles directly. Deputy Lawyer Common Todd Blanche can be the Performing Librarian of Congress. However he’s a mere piker in comparison with Marco Rubio, who claims to be Performing Nationwide Safety Advisor, Performing Administrator of USAID, and Performing Nationwide Archivist, alongside together with his day job as Secretary of State. And whereas Trump could also be pleased to let USAID wither, there are many positions he does care about filling.
The Senate’s affirmation math might also change in unpredictable methods in 2026, because the election approaches and the president’s unpopular insurance policies proceed to overwhelm Republicans. However the dispute over blue state US Attorneys is a probable harbinger of the battle to come back. Simply as he’s finished with tariffs and the price range, Trump is solely ignoring the legislation and stealing Congress’s energy relating to putting in US Attorneys.
It’s at all times doable that the Supreme Courtroom will decline to weigh in on this dispute. However provided that the conservative justices spent the previous yr leaping in to make sure that Trump would by no means must observe the legislation, it appears unlikely. And so the struggle in 2026 will heart on who will get to fill all these vacancies created when SCOTUS let him fireplace each board member, company head, and US Lawyer within the nation.
No matter occurs, reduction will definitely come too late for Lindsey Halligan. Part 546 permits for one 120-day appointment. Halligan was put in on September 22, and so, even when that appointment was authorized, it might day trip on January 20, 2026. After that, she could also be a particular lawyer or a First Assistant US Lawyer, however she gained’t be the US Lawyer for the Japanese District of Virginia.
Subscribe to learn extra at Regulation and Chaos….
Liz Dye produces the Regulation and Chaos Substack and podcast. You may subscribe by clicking the emblem:
