The dismissal of the cases against Attorney General Letitia James of New York and the former director of the FBI, James Comey, for bank fraud and lying to Congress, respectively, presents a daunting set of challenges for the Justice Department – how can they effectively appeal the dismissal, and who will prosecute the case?  

The attorney general, Pam Bondi, on Monday vowed to take “all available legal action, including an immediate appeal” to reverse the disqualification of the interim United States attorney for the Eastern District of Virginia, Lindsey Halligan. Judge Cameron McGowan Currie, an appointee of President Clinton, ruled that Ms. Bondi’s appointment of Ms. Halligan was “invalid.”

Judge Currie —  who was asked to rule on the disqualification by the presiding judge in the Comey and James cases, Michael Nachmanoff, a Biden appointee and former public defender —  reckoned that if Ms. Bondi’s selection of Ms. Halligan was validated “It would mean the government could send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment so long as the attorney general gives her approval after the fact. That cannot be the law.” White House Press Secretary Karoline Leavitt maintains that “Lindsey Halligan is extremely qualified for this position.”

The rebuke of Ms. Bondi from the bench makes her the second consecutive attorney general to suffer such an indignity over the appointment of a prosecutor. Judge Aileen Cannon in South Florida ruled that Attorney General Merrick Garland, blundered in his appointment of Special Counsel Jack Smith, who was hired when he was a war crimes prosecutor at the Hague. She disqualified Mr. Smith and dismissed the charges against President Trump and his co-defendants in the Mar-a-Lago case.

Judge Currie cites Judge Cannon’s reasoning at length. Mr. Garland, a grandee of the legal elite who was nominated by President Obama to the Supreme Court and was Chief Judge of the powerful federal appellate court at the District of Columbia , appearing on television after Mr. Smith’s disqualification, scoffed that he could have made “a basic mistake about the law” as to appoint Mr. Smith without proper legal ballast. Still Judge Cannon’s ruling remains law in Florida.

Ms. Halligan, who previously served as a personal attorney to Mr. Trump in that Mar-a-Lago case and had never prosecuted a felony before, was appointed as interim United States attorney after the previous prosecutor, Erick Siebert, resigned. Mr. Siebert was also a temporary appointment, and Judge Currie ruled that both the Constitution’s Appointments Clause and federal law ban the attorney general’s appointment of two consecutive interim prosecutors. 

Mr. Siebert resigned after Mr. Trump declared, in the Oval Office, that “I want him out” because of the support he enjoyed from the Old Dominion’s two Democratic senators, Mark Warner and Tim Kaine. ABC News reported, though, that Mr. Siebert was resisting charging both Ms. James and Mr. Comey because he didn’t think the cases against them were strong enough to go to trial.

One day after Mr. Trump called for Mr. Siebert to resign, the president posted a message to Truth Social directed to “Pam” and asking “What about Comey, Adam ‘Shifty’ Schiff, Leticia??? They’re all guilty as hell, but nothing is going to be done. We can’t delay any longer, it’s killing our reputation and credibility.”

The New York Times reported that “Attorney General Pam Bondi and Todd Blanche, the deputy attorney general who runs the day-to-day operations of the Justice Department, had privately defended Mr. Siebert” and counseled against firing him. On the other side of the debate, the Gray Lady relates, was the director of the Federal Housing Finance Agency, William Pulte. He referred Ms. James to the DOJ for prosecution but is now reportedly under investigation himself for how he accessed her mortgage records.   

Ms. Bondi selected Ms. Halligan, who had previously been assigned to address the ideological composition of the Smithsonian museums, to succeed Mr. Siebert. Judge Currie, though, ruled that “all actions flowing from Ms. Halligan’s defective appointment, including securing and signing Mr. Comey’s indictment, were unlawful exercises of executive power and are hereby set aside.” Judge Currie describes Ms. Halligan as “a former White House aide with no prior prosecutorial experience.”

Judge Currie lashed the DOJ as responsible for a “unique, if not unprecedented, situation where an unconstitutionally appointed prosecutor, ‘exercising power she did not lawfully possess,’… acted alone in conducting a grand jury proceeding and securing an indictment.” Unusually, Ms. Halligan was the only prosecutor to sign off on the indictments of Mr. Comey and Ms. James, making those charging documents vulnerable to voiding.

The task of replacing Ms. Halligan falls — pending appeal — to Virginia’s district court judges, the majority of whom were appointed by Republican presidents. The situation echoes the one unfolding in New Jersey, where another temporary prosecutor, Alina Habba, was ruled unlawfully appointed after the federal judges in the Garden State — overwhelmingly Democratic appointees — ruled against her continuing on in the role. That ruling, though, is frozen pending appeal. 

Ms. Bondi on Monday insisted that Ms. Halligan would stay in her role. The attorney general explained that “We have made Lindsey Halligan a special U.S. Attorney, so she is in court, she can fight in court just like she was. Lindsey Halligan is an excellent U.S. attorney. And shame on them for not wanting her in office.” Judge Currie, though, rejected that retrospective appointment. 

It is not clear whether Ms. Halligan will keep her post pending appeal. Whomever is the chief prosecutor in the Eastern District of Virginia, though, will have to decide whether to re-indict Mr. Comey and Ms. James if that appeal fails. Mr. Comey said in a video after Judge Currie’s ruling that he expects to be charged again even though the statute of limitations on his underlying alleged crimes has expired. 

 It is unknown whether courts will allow another indictment in Mr. Comey’s case, though a federal law appears to mandate that “Whenever an indictment or information charging a felony is dismissed for any reason after the period prescribed by the applicable statute of limitations has expired, a new indictment may be returned in the appropriate jurisdiction within six calendar months of the date of the dismissal of the indictment.”

The court on appeal will go to the Fourth United States Appeals Court. Eight of the 15 judges on that tribunal were appointed by Democratic presidents, making it a fairly balanced body. The DOJ is likely to argue that Judge Currie’s ruling is injurious to executive prerogative and, ultimately, the powers of the president. They can also contend that even if Ms. Halligan’s appointment was troubled, she still possessed “de facto” authority to prosecute. 

The appeals could eventually reach the Supreme Court.