Pam Bondi Plows Past ‘Paperwork Mistake’ To Revive Criminal Prosecutions Against Letitia James and James Comey

The appeal by Attorney General Pam Bondi of the dismissals of the cases against New York’s attorney general, Letitia James, and the former FBI director, James Comey, signals an unsurrendering posture in respect of prosecuting these high-profile foes of President Trump. The 56-page request for review was docketed this week at the Fourth United States Appeals Circuit, based in Virginia. The DOJ wants the appellate court to reverse a district court ruling that the prosecutor, Lindsey Halligan, who pursued indictments against Mr. Comey and Ms. James, was unlawfully appointed. Judge Cameron McGowan Currie, an appointee of President Clinton who usually sits in South Carolina, also dismissed the criminal cases against the two defendants.Mr. Comey is charged with lying to Congress during testimony in 2020 that covered the topic of leaks in the 2016 investigation into Russian interference in the presidential election. Ms. James stands accused of bank fraud for allegedly lying on a mortgage document to secure a loan on a modest home in the Old Dominion. Both pleaded “not guilty,” and contended that Ms. Halligan lacked the power to bring the cases in the first instance.Now Ms. Bondi’s brief argues that Judge Currie’s ruling “mistakenly aggrandizes the district court’s appointment authority at the expense of the Executive Branch’s, which is where the Constitution assigns authority to prosecute crime. The court’s holding adds extratextual limits on the Attorney General’s appointment authority.” She decries the “strong medicine of dismissing indictments.” While the DOJ acknowledges that it bungled Ms. Halligan’s appointment by at one point citing an incorrect statute, the brief contends that “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 takes the position that the attorney general possesses the power “to appoint a U.S. Attorney in any district with a vacancy.” Permanent confirmation, though, requires a vote by the Senate. Federal statute appears to allow the attorney general to make only a single temporary appointment for 120 days. After that, the power of appointment would appear to rest with the district court judges in the jurisdiction.The DOJ, though, argues that “the 120-day period applies on a per-appointment basis and defines the duration of the appointee’s term, not the duration of the Attorney General’s appointment authority.” That means, according to the Trump Administration, that Ms. Bondi possesses the unlimited power to make interim appointments — including keeping Ms. Halligan installed.Ms. Halligan, like many of Mr. Trump’s temporary prosecutorial appointments — Alina Habba in New Jersey and John Sarcone in upstate New York among them — finds her path to an up or down vote in the Senate blocked by the Senate custom known as “blue slipping,” whereby the assent of both of a state’s senators is required to proceed to the upper chamber. Mr. Trump wants the tradition abolished because Democrats are using it to block his appointments. Senate Republicans, though, are loath to nix it. Ms. Bondi writes that the “district court’s concerns that the Attorney General might minimize the district court’s role or circumvent Senate confirmation by making robust use of her authority are best addressed to Congress.” The DOJ also takes the position that even if Ms. Halligan was serving unlawfully, the indictments she secured against Mr. Comey and Ms. James would still be valid.The DOJ reasons that “Whatever her proper title, Halligan was at minimum an attorney for the government and thus authorized to seek and obtain indictments on its behalf — especially given her additional appointment as a Special Attorney.” Ms. Halligan’s continued use of the title from which she had been disqualified so incensed one district judge in Virginia that he threatened disciplinary action against not only her but also Ms. Bondi.Ms. Bondi defends the indictments handed up under Ms. Halligan’s supervision by arguing that because the former defense attorney for Mr. Trump “obtained the indictments under the color of official office, her actions are entitled to de facto validity even if she was unlawfully appointed. Since the founding, the de facto officer doctrine has operated to prevent the chaos and uncertainty that would ensue if all past actions of someone occupying an office were suddenly rendered invalid.”Ms. Bondi argues that “One need not be a U.S. Attorney to obtain and sign indictments — one need only be an ‘attorney for the government’” because the “Attorney General has plenary authority over the prosecution of federal crimes.” Mr. Trump, though, took a different position when he argued in the Mar-a-Lago case — successfully — that Special Counsel Jack Smith was unlawfully appointed by Attorney General Merrick Garland.Judge Cannon agreed and dismissed the charges against Mr. Trump and his two co-defendants. Ms. Halligan was part of his defense team in that case before she was hired at the DOJ. If the administration loses its appeal before the Fourth Circuit, an appeal to the Supreme Court could hover on the horizon.

Pam Bondi Plows Past ‘Paperwork Mistake’ To Revive Criminal Prosecutions Against Letitia James and James Comey

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