Main: Attorney General Pam Bondi appears before a Senate Judiciary Committee oversight hearing on Capitol Hill in Washington, Tuesday, Oct. 7, 2025 (AP Photo/Mark Schiefelbein). Left inset: New York Attorney General Letitia James speaks to the media, Nov. 6, 2023, in New York (AP Photo/Ted Shaffrey, File). Right inset: Former Director of the Federal Bureau of Investigation James Comey gestures while addressing a gathering at Harvard University's Institute of Politics' JFK Jr. Forum in Cambridge, Mass., Monday, Feb. 24, 2020. (AP Photo/Charles Krupa).
James Comey accused the DOJ of hypocrisy on Tuesday, as the former FBI director told a three-judge panel that efforts to revive his "fatally flawed" false statement and obstruction prosecution cannot succeed.
The brief at the 4th U.S. Circuit Court of Appeals began by calling the "purported indictment" of Comey "fatally flawed" because U.S. Attorney General Pam Bondi unlawfully appointed Lindsey Halligan as the interim U.S. attorney for the Eastern District of Virginia and then failed to fix the defect a month after the fact.
Since Halligan "could not validly exercise any governmental power" at the time she secured the indictment on her own and without authority, Comey said, the DOJ shouldn't get another chance to imperil his freedom.
"The government seeks to excuse its unlawful actions on the ground that it perhaps could have appointed Ms. Halligan differently. But that argument lacks force where, as here, fundamental constitutional protections and individual liberty are at stake. In short, the United States cannot charge and prosecute a case through a person who is not entitled to exercise governmental authority," Comey argued. "This Court should affirm."
In November, Senior U.S. District Judge Cameron Currie ordered the dismissal of the criminal cases against Comey and New York Attorney General Letitia James, finding that Bondi unlawfully appointed Halligan as interim U.S. attorney and rejecting Bondi's "too late in the day" attempt to retroactively ratify Halligan's actions through a special attorney title. Bondi asserted that the Halloween maneuver "cured any arguable flaw," arguing 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.
Halligan, the lone presenter and signer of the grand jury indictments, was installed into her role in September — with no prosecutorial experience to her name but with the express endorsement of her former criminal defendant client President Donald Trump — as the statute of limitations neared for Comey and career prosecutors sided against bringing charges.
After the dismissals, the DOJ struck out in renewed efforts to indict James and had to deal with a separate quagmire in its pursuit of Comey. Halligan in the meantime continued identifying herself on court documents as interim U.S. attorney, sparking the ire of a federal judge who saw it as "direct defiance" of Currie's "binding court orders."
Although Halligan stepped aside on Jan. 20 as judges in the Eastern U.S. District of Virginia began the process for replacing her, the subsequent court-appointed replacement was fired swiftly.
The challenges at the 4th Circuit have continued, however, with the DOJ still maintaining Halligan's appointment was at most a "paperwork mistake" that Bondi fixed — and certainly not a reason to jettison the indictments, which were "nonetheless valid."
"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."
Comey's legal team has responded that there's nothing Bondi can do to salvage the case now, and he noted the government's position here "sharply contrasts" with the DOJ's embrace of the Appointments Clause violation-based end to the Mar-a-Lago classified documents prosecution of Trump.
"The government's claim that the defective appointment of Ms. Halligan is a 'paperwork error' rendered inconsequential by the retroactive invocation of Section 515 sharply contrasts with the government's position in United States v. Trump, where the appointment of a Special Counsel pursuant to Section 515 (and other provisions) was at issue," the filing said. One statute Jack Smith cited to support his appointment — 28 U.S. Code § 515 — is also one that Bondi invoked to retroactively name Halligan as special attorney.
The footnote specifically pointed to a Jan. 23 filing on the Mar-a-Lago docket, in which Miami U.S. Attorney Jason Reding Quiñones backed Trump and his ex-co-defendants, representing that it was the DOJ's position that special counsel Smith's Volume II was an "illicit product of an unlawful investigation and prosecution" that "belongs in the dustbin of history," kept from the public. U.S. District Judge Aileen Cannon went on to scold Smith for producing the report after she found he was unlawfully appointed, construing that as a "breach" of her dismissal of Trump's indictment.
For Comey, following the logic of Trump v. United States, Halligan's actions were "void" from the get-go and so was everything that followed. Belated attempts to make her a government attorney under a different title didn't change that, the brief concluded.
"The government cannot now escape the consequences of its decisions by retroactively appointing Ms. Halligan to a lesser office than the one she purported to occupy when she presented the case to the grand jury," Comey summed up, adding that the Supreme Court has "repeatedly held that actions taken by someone who lacks a valid appointment are void."
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