The appeal by the Department of Justice of the dismissed prosecutions against the former FBI director James Comey and New York’s attorney general, Letitia James, puts in sharp relief the Trump administration’s unrelenting effort to convict the pair.

Word of the appeal came weeks after Attorney General Pam Bondi vowed an “immediate” one and days before the 30-day deadline for such a petition for review. In the interim, the DOJ convened a second and third grand jury that were asked to hand up new charges against Ms. James. Both refused, astonishingly rare demurrals given that grand juries return charges in some 90 percent of cases. 

The cases against Mr. Comey for lying to Congress and Ms. James for bank fraud were tossed after Judge Cameron McGowan Currie, an appointee of President Clinton, ruled that the prosecutor in charge, Lindsey Halligan of the Eastern District of Virginia, was unlawfully appointed by Ms. Bondi. She was the second consecutive interim prosecutor to hold the post. Judge Currie ruled that the Executive Branch can make only one such appointment.

The appeal of that ruling will be docketed at the Fourth United States Appeals Circuit and could eventually find its way to the Supreme Court no matter which way the Richmond-based tribunal rules. The issue touches on constitutional bedrock — the Appointments Clause and the perimeter of presidential power. Judge Currie ruled that “All actions flowing from Ms. Halligan’s defective appointment … constitute unlawful exercises of executive power and must be set aside.” 

Judge Currie dismissed the cases “without prejudice,” meaning that the charges could be refiled without an appeal. It appears as if that was Ms. Bondi’s first choice with respect to Ms. James, though it was frustrated by the grand juries’ refusal to indict her again. The case against Mr. Comey presented an additional roadblock — the statute of limitations on allegations that he lied to Congress has already expired, complicating the convening of a new grand jury.

An appeal of Judge Halligan’s dismissals is not without risk. Earlier this month a panel of the Third United States Appeals Circuit upheld the disqualification of the erstwhile acting  United States Attorney for the District of New Jersey, Alina Habba. A trial court judge, Matthew Brann, ruled in August that Ms. Habba, like Ms. Halligan, was appointed unlawfully. Ms. Habba resigned after Ms. Bondi admitted that the ruling made it “untenable for her to effectively run her office.”

The Third Circuit panel writes that “It is apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place,” but contends that the administration’s position would “effectively permit anyone to fill the U.S. Attorney role indefinitely.” The DOJ argues that the power to appoint two consecutive interim United States attorneys is within the remit of Executive Branch authority. Ms. James is also challenging the appointment of a third acting United States attorney, John Sarcone of the Northern District of New York.

The challenges to Ms. Bondi’s prosecutors all flow from a shared lacuna — none of them were confirmed by the Senate. The traditions of the upper chamber mandate, via the custom known as “blue slipping,” that a state’s two senators both approve of a nominee for United States attorney proceeding to a confirmation vote. Virginia, New Jersey, and New York all have Democratic senators who have blocked the pathways to a vote.

The federal law governing the appointment of interim prosecutors appears to mandate that the attorney general can appoint an interim prosecutor for a period of 120 days. After that, the federal judges in the district are assigned the responsibility to either extend the tenure of the interim appointment or appoint a new prosecutor. The government could challenge the law as an unconstitutional infringement on presidential power.

The disqualification of Ms. Halligan was especially devastating to the prosecution of Mr. Comey and Ms. James because she presented those cases to the grand jury herself — her signature alone appears on the indictments. Ms. Halligan, who previously represented Mr. Trump as a defense attorney in the Mar-a-Lago documents case, had never before prosecuted a felony. She was appointed after her predecessor, Erik Siebert, resigned following reports that he was reluctant to charge Mr. Comey and Ms. James.