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).
The Trump administration maintains that Lindsey Halligan's roller coaster and ephemeral debut as prosecutor of her former client's rivals was totally "harmless," and that ex-FBI Director James Comey and New York Attorney General Letitia James' wins by dismissal should be short-lived.
U.S. Attorney General Pam Bondi and Deputy Attorney General Todd Blanche argued in a brief Friday at the 4th U.S. Circuit Court of Appeals that Halligan was lawfully appointed because the AG is "fully empowered" to make successive 120-day interim appointments under the Federal Vacancies Reform Act (FVRA), an argument that did not succeed in the court below.
Perhaps recognizing that assertion may not fly, the DOJ's backstop argument rested on Bondi's move to retroactively ratify Halligan's actions before the grand juries through a special attorney title. The AG has claimed the Halloween maneuver "cured any arguable flaw" and that even if Halligan wasn't lawfully the interim U.S. attorney she was at least lawfully empowered by Bondi to supervise the office and conduct prosecutions.
In November, Senior U.S. District Judge Cameron Currie ordered the dismissal of the criminal cases against Comey and James, finding that Bondi's attempt to ratify Halligan's signature came "too late in the day" and was particularly problematic because she was the only prosecutor to sign the indictments and present to the grand jury.
Bondi now says "it does not matter" if Halligan's signature on Comey's indictment was valid because the retroactive ratification of Halligan's actions "'made it such that [s]he,'" the AG, "obtained and signed the indictments herself."
"The Attorney General did not use ratification to do something she otherwise could not. On the day of ratification, she had the authority to obtain and sign an indictment against Comey herself," the brief stated.
Moreover, the DOJ said, to the extent the signature was defective, dismissal wasn't the necessary or right remedy.
Ridiculing the defendants and "their squad of amici," referring to several non-party briefs supporting the positions of Comey, James, and several courts, the DOJ cast as absurd the position that the fact of Halligan's appointment was the only reason President Donald Trump's perceived enemies were indicted.
"Defendants suggest that they would not have been indicted had Halligan not been appointed. But that is not the relevant question. The question is whether the grand jury would have made a different decision had Halligan been appointed lawfully," the government said. "And the answer is plainly no."
What the brief did not address is that neither Comey nor James have been indicted since the dismissals and Halligan's exit two months later. The DOJ struck out in renewed efforts to indict James and had to deal with a separate legal quagmire in its pursuit of Comey, one which highlighted the grand jury and Fourth Amendment issues that threatened the prosecution on another front. Separately, a federal judge quashed grand jury subpoenas of James' office because the acting U.S. attorney who issued them was not lawfully appointed. The subpoenas were issued over the summer as part of the DOJ's criminal investigation into the Democratic AG's civil fraud lawsuit against Trump and his family business, and James' lawsuit against the NRA.
Amid it all, the DOJ said Comey and James have not demonstrated Halligan's appointment was a harm or "prejudice" requiring dismissal, as the defendants themselves "do not dispute that the Attorney General could have appointed Halligan as a prosecutor through some other mechanism."
"To date, neither defendant nor the district court has been able to articulate how the Attorney General's use of Section 546 instead of another statute affected the grand-jury proceedings at all, let alone rendered them 'fundamentally unfair,'" the brief said.
Bondi also stated that Comey and James' doomsday scenario is "most unlikely to come to pass," one in which the AG could simultaneously staff all of the U.S. Attorney's Offices in the country with interim appointees aligned with the Trump administration who were never confirmed by the U.S. Senate — only to rinse and repeat that "burden" of a process every 120 days.
"Defendants worry that, if the government wins this case, the Executive Branch might exclusively rely on successive 120-day appointments and thus prevent the district court from ever exercising its appointment authority, rendering subsection (d) 'superfluous,'" the filing said, without definitively ruling out the scenario. "Such machinations would burden the Attorney General with the need to personally appoint every 120 days interim U.S. Attorneys in 94 different U.S. Attorney's offices and thus seem most unlikely to come to pass. The Executive Branch has taken the view that the Attorney General has parallel appointment authority alongside the district court since at least 1987 and has never behaved in that way."
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