Left to right: FBI Director James Comey testifies on Capitol Hill in Washington before the House Oversight Committee to explain his agency's recommendation to not prosecute Hillary Clinton on July 7, 2016 (AP Photo/J. Scott Applewhite, File). Lindsey Halligan, special assistant to the president, speaks with a reporter outside of the White House, Wednesday, Aug. 20, 2025, in Washington. (AP Photo/Jacquelyn Martin). U.S. Attorney General Pam Bondi speaks at a press briefing with U.S. President Donald Trump in the James S. Brady Press Briefing Room in the White House in Washington, DC on Friday, June 27, 2025 (Annabelle Gordon/Sipa USA)(Sipa via AP Images). New York Attorney General Letitia James speaks during a press conference regarding former US President Donald Trump and his family's financial fraud case on September 21, 2022 in New York (photo by YUKI IWAMURA/AFP via Getty Images).
When a federal judge ruled that Lindsey Halligan was unlawfully appointed as interim U.S. attorney for the Eastern District of Virginia, it appeared to prove fatal to the prosecutions of former FBI Director James Comey and New York Attorney General Letitia James. The DOJ now counters that was only a flesh wound and that the indictments President Donald Trump called for should survive regardless.
The Trump administration's 47-page brief at the 4th U.S. Circuit Court of Appeals backed Halligan's appointment one more time, but left open the possibility that a three-judge panel will make an alternative ruling.
In that scenario, the court could affirm that U.S. Attorney General Pam Bondi did not validly appoint Halligan but that the indictments were "nonetheless valid."
Senior U.S. District Judge Cameron Currie dismissed Comey's false statement case and James' bank fraud prosecution in November, writing that Halligan acted without "lawful authority." According to the DOJ, however, Currie's ruling wrongly "impos[ed] the strong medicine of dismissing indictments duly returned by two grand juries."
Halligan held on to her role for over a month but eventually caught another federal judge's attention in January for continuing to identify herself on court documents as U.S. attorney.
U.S. District Judge David J. Novak, a Trump appointee, said Halligan, a former Trump criminal defense lawyer, was engaged in a "charade," in which she was "masquerading" as the U.S. attorney and "in direct defiance of binding court orders," referring to Currie's dismissals.
Although the DOJ said Novak was running an "inquisition," Halligan ultimately stepped aside on Jan. 20 as judges in the Eastern District began the process for replacing her — with public advertisements for the job.
The DOJ still maintains that Bondi's move to retroactively ratify Halligan's dual interim U.S. attorney and special attorney titles, and her actions before the grand juries, cured any "paperwork mistake" hampering the indictments she alone signed.
"The appointment error alleged here therefore boils down to the idea that the Attorney General cited the wrong statute in authorizing Halligan to seek and obtain the indictments at issue here. Even if that paperwork mistake was legal error, it was not one that prejudiced defendants; and it has in any event been cured several times over by Attorney General orders ratifying Halligan's actions before the grand juries and her signature on the indictments," the government said. "The Court should reverse."
What mattered is that Halligan was "at minimum an attorney for the government" at the time she secured the Comey and James indictments, the DOJ asserted.
"Even if the Attorney General could not appoint Halligan to the office of interim U.S. Attorney, it does not follow that Halligan was unauthorized to obtain and sign indictments on behalf of the United States. One need not be a U.S. Attorney to obtain and sign indictments—one need only be an 'attorney for the government,'" the brief said.
In closing, the DOJ stated that Comey and James cannot show that concerns about Halligan's appointment "prejudiced" them to the point that dismissal was warranted.
"Neither the district court nor the defendants seriously contend that the grand juries' decisions to indict in these cases were substantially influenced by the title Halligan claimed, when it is indisputable that she could have presented the cases as a Special Attorney rather than an interim U.S. Attorney," the brief concluded. "Nor is it fundamentally unfair to the defendants, as the court claimed, that Halligan presented the evidence to the grand juries in her capacity as interim U.S. Attorney rather than in some other capacity."