The Appointments Clause Trips Up Trump

The dismissal of the criminal cases against New York’s attorney general, Letitia James, and the former director of the FBI, James Comey, is a moment to mark the Constitution’s Appointments Clause. Judge Cameron McGowan Currie of South Carolina ruled that the interim United States Attorney for the Eastern District of Virginia, Lindsey Halligan, was unlawfully appointed and that her indictments “must be set aside” as “unlawful.”In one sense this is good news in that it vindicates Judge Aileen Cannon’s disqualification of Special Counsel Jack Smith from the Mar-a-Lago case against Mr. Trump in South Florida. She ruled that Mr. Smith, who never achieved confirmation by the Senate, was unlawfully appointed by Attorney General Merrick Garland. She found that Mr. Smith was acting ultra vires and that his charges were void. She dismissed the charges as an abuse of authority. Judge Currie dismissed the current cases “without prejudice.” So they could be refiled, though that could be an uphill climb, especially in respect of Mr. Comey on account of an expired statute of limitations. We carry no brief for either Mr. Comey or Ms. James. Maybe the evidence adduced would have been sufficient to convict them at trial. We do carry a brief for the strictures on prosecutors’ appointments, intended to curb an awesome power.The parchment ordains that “officers of the United States” — like United States attorneys — must be nominated by the president and confirmed by the Senate. Federal law mandates, at least as Judge Currie reads it, that in the absence of permanent confirmation the DOJ can make one interim appointment, but not two consecutive ones. Ms. Halligan’s predecessor, Erick Siebert, was also appointed on an interim basis. It’s all too provisional for Judge Currie.The dismissal of the cases against Mr. Comey and Ms. James could be an opportunity for the administration to close the book on lawfare. We have long viewed the prosecutions of Mr. Trump — and the civil fraud case launched by Ms. James — as politically driven. If the prosecutions of Ms. James and Mr. Comey were “vindictive” and “selective” as both claim, what to make of, say, Ms. James’s motivations or those of District Attorney Alvin Bragg?Speaking of animus, we were shocked by language used by the presiding judge, Michael Nachmanoff, at a hearing last week in the now-dismissed Comey case. Judge Nachmanoff asked Mr. Comey’s attorneys if their “view is that Ms. Halligan is a stalking horse or a puppet, for want of a better word, doing the president’s bidding?” Judge Currie’s opinion, gratuitously, called Ms. Halligan “a former White House aide with no prior prosecutorial experience.”Ms. Halligan could be Robert Morgenthau for all that her qualifications are relevant to the legitimacy of her appointment. We have oft noted that Mr. Trump’s record on appeal is nothing to sneeze at, and it could be that circuit riders will rule that Judge Currie moved too precipitously. The government has argued, our A.R. Hoffman reports, that Ms. Halligan possessed, at the least, “de facto authority” to prosecute the case. An instructive precedent could be Mr. Trump’s eventual triumph on the issue of presidential immunity. There the once and future president lost at both the district court and appellate courts before being vindicated before the Supreme Court. It could be that the appointment of what the Constitution calls “inferior officers” contains more nuance than Judge Currie allows. It wouldn’t be the first time Mr. Trump broke new constitutional terrain.

The Appointments Clause Trips Up Trump

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