The former director of the FBI, James Comey, is doubling down on his claim that the prosecutor leading the case against him is unlawfully appointed and that the charges against the erstwhile head spook ought to be dismissed on all counts.

Mr. Comey’s latest filing in federal court in Virginia asserts that “since the Founding, U.S. Attorney nominees have been subject to the advice and consent of the Senate. And since 1863, courts have appointed interim U.S. Attorneys when an office is vacant.” He contends that the prosecutor who indicted him, Lindsey Halligan, can claim neither writs of authority. Mr. Comey is charged with lying to Congress and obstruction.

Ms. Halligan is the interim United States attorney for the Eastern District of Virginia. Prior to that prestigious post, she served as a personal attorney for Mr. Trump as he mounted his defense in the Mar-a-Lago case brought by Special Counsel Jack Smith. The 47th president also tasked her with revising the ideological bent of the Smithsonian museums.

The rub, though, is how Ms. Halligan, who has never prosecuted a felony before, came by her position. She replaced the former interim United States attorney, Erik Siebert. Mr. Siebert resigned suddenly, with Mr. Trump claiming he was fired because he enjoyed the support of Virginia’s two Democratic senators, Tim Kaine and Mark Warner. Yet ABC News reports that Mr. Siebert’s departure was precipitated by his refusal to charge Mr. Comey and New York’s former attorney general, Letitia James. Ms. Halligan has moved ahead with both cases against Mr. Trump’s foes.

Mr. Comey contends that Ms. Halligan has no more right to prosecute him than would a “private citizen” and that despite Attorney General Pam Bondi’s “late-breaking attempts, she cannot go back in time and transform Ms. Halligan into an authorized prosecutor. Where, as here, the only purported government official presenting an indictment to a grand jury lacks a lawful appointment, the indictment is void.”

One of Mr. Trump’s greatest legal victories was the disqualification by Judge Aileen Cannon of Mr. Smith from the Mar-a-Lago prosecution. Judge Cannon ruled that Mr. Smith’s appointment by Attorney General Merrick Garland was unlawful because Mr. Smith had never been confirmed by the Senate. Mr. Smith appealed that ruling, but the case was ultimately dismissed when Mr. Trump won reelection against Vice President Kamala Harris.

Mr. Comey is requesting that the case not only be tossed, but that it be dismissed “with prejudice,” meaning that it cannot be refiled. He argues that “any lesser remedy would reward the government for its willful violation of the law and manipulation of the statute of limitations. This Court should not allow the government to continue this deeply flawed prosecution.”  

The former FBi director cites a federal statute which appears to prohibit the appointment of two consecutive interim United States attorneys. That at least was the interpretation dispensed in a 1986 memorandum at the Department of Justice by a future Supreme Court justice, Samuel Alito. After the 120-day interim appointment period ends, it falls to the federal judges in the relevant district to extend the prosecutor or void his appointment.

The government, though, argues here that the attorney general  “make multiple interim appointments,” each lasting 120 days, and all of the same person. Mr. Comey reasons that if that were the case the “Attorney General could perpetually renew appointments every 120 days to prevent the district court from ever appointing anyone … On that view, the Executive Branch would never need to seek Senate confirmation of a permanent U.S. Attorney.”

Mr. Comey’s legal team argues that “the unlawful appointment here stems directly from the President’s vindictive targeting of Mr. Comey.” That is an allusion to another one of Mr. Comey’s motions to dismiss the case, which insists that the charges against him are “selective” and “vindictive.” Ms. James is making the same argument. Both of their claims rest on Mr. Trump’s public pronouncements denouncing Mr. Comey and Ms. James.

The disqualification arguments proffered by Mr. Comey have prospered elsewhere. In New Jersey, a challenge to the appointment of Alina Habba as acting United States attorney yielded a ruling that she was unlawfully appointed, which the DOJ has appealed. In the meantime, the charges handed up under her watch have not been dismissed, though they could be if she is permanently disqualified.