‘Should Never Have Happened’: Comey Presses Fourth Circuit To ‘86’ Dismissed Case

The skeptical judicial reception given by the United States Court of Appeals for the Fourth Circuit to the Department of Justice’s efforts to revive the criminal cases against the former FBI director James Comey and New York’s attorney general, Letitia James, portends poorly for the future of those cases.On Tuesday, the government made the case to the appellate court that the dismissal of charges against Mr. Comey and Ms. James by Judge Cameron McGowan Currie in November 2025 was in error. Mr. Comey had been charged with lying to Congress in 2020, and Ms. James had been accused of bank fraud in connection with a loan she secured on a modest home she bought in Norfolk.The oral arguments were held before two appointees of President Obama — Judges Albert Diaz and Henry Floyd — and one of President Trump, Judge Julius Richardson. A ruling is expected in the coming months, with further appeals possible to the full Fourth Circuit — called an en banc hearing — and possibly the Supreme Court, which could be enticed to weigh in on the meaning of the Constitution’s Appointments Clause.Judge Currie tossed the prosecutions — “without prejudice,” meaning they can be refiled — after she ruled that the United States attorney in charge of the case, Lindsey Halligan, was unlawfully appointed by Attorney General Pam Bondi. Ms. Halligan joined several other of Ms. Bondi’s appointees — among them Alina Habba of New Jersey and Sigal Chattah of Nevada — who were named to their posts on a temporary basis only to be disqualified.The DOJ argued that “The attorney general has the authority to appoint an interim U.S. attorney if the position is vacant.” Ms. Halligan, a personal attorney for Mr. Trump who had never tried a felony case before, replaced Erik Siebert, who resigned over his reluctance to bring these cases. Federal law mandates that after 120 days any interim appointments by the attorney general must be endorsed by the federal judges in the district.Mr. Siebert secured that approval, but Ms. Halligan did not. Mr. Comey’s side — represented by the prominent lawyer Abbe Lowell — argued that “attorneys wield tremendous power over individual life and liberty — that’s why, since the founding of our nation, United States attorneys have been confirmed by the Senate.” Mr. Lowell asked the court, “How is it that something as important as a grand jury indictment can be brought by a person who had no business being there?”Judge Currie’s disqualification order made much the same point, declaring that to rule otherwise would be “extraordinary. 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.”Another of Mr. Comey’s lawyers, Ephraim McDowell, took an even stronger stance, insisting that “The defect is that the indictment should never have happened.” Mr. Comey challenged the charges handed up against him as “vindictive” and “selective,” but the disqualification of Ms. Halligan meant that those claims were never ruled upon. If the dismissal is overturned, they will be considered before a trial begins.Judge Currie’s disqualification decision echoed language from a federal judge, David Novak, who after Ms. Halligan’s disqualification thundered that “This charade of Ms. Halligan masquerading as the United States Attorney for this District in direct defiance of binding court orders must come to an end. It is inconceivable that the Department of Justice, which holds a duty to faithfully execute the laws of the United States — even those with which it may disagree — would repeatedly ignore court orders.”A 1986 memorandum from the DOJ’s Office of Legal Counsel — written by a then-young government lawyer named Samuel Alito — opined that “after the expiration of the 120-day period further interim appointments are to be made by the court rather than by the Attorney General.” If the case reaches the high court, Justice Alito could find himself considering whether to overturn his own conclusion.Mr. Comey is facing a second set of criminal charges outlined in an indictment the DOJ secured in April that alleges that he threatened the life of President Trump in an Instagram post that featured seashells arranged on the beach in an ‘86 47’ formation. The government contends that “86,” which is slang for “nix” or “get rid of,” can also mean “to kill” — in this case the 47th president.

‘Should Never Have Happened’: Comey Presses Fourth Circuit To ‘86’ Dismissed Case

‘Should Never Have Happened’: Comey Presses Fourth Circuit To ‘86’ Dismissed Case

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