Left: New York Attorney General Letitia James presents the findings of an independent investigation on August 3, 2021 in New York City (David Dee Delgado/Getty Images). Center: Lindsey Halligan, then-special assistant to the president, speaks with a reporter outside of the White House, Wednesday, Aug. 20, 2025, in Washington (AP Photo/Jacquelyn Martin). Right: Former FBI director James Comey speaks at Harvard University’s Institute of Politics’ JFK Jr. Forum in Cambridge, Mass., Feb. 24, 2020. (AP Photo/Charles Krupa, File).
The Trump administration on Friday signaled its intent to appeal a district court order that found that Lindsey Halligan‘s appointment at the Eastern District of Virginia was unlawful and unconstitutional.
The appeal has obvious implications for the government’s failed, high-profile prosecutions of New York Attorney General Letitia James and former FBI director James Comey.
In late November, Senior U.S. District Judge Cameron McGowan Currie, a Bill Clinton appointee, found Halligan is a “private citizen” who was never validly appointed to serve as Interim U.S. Attorney for the so-called Rocket Docket, a nickname denoting the speed in which cases are typically adjudicated relative to other federal court systems.
The judge further found “[a]ll actions flowing from” Halligan’s “defective appointment” including the indictments secured against James and Comey “were unlawful exercises of executive power” and, in turn, dismissed both cases without prejudice.
On Friday, the U.S. Department of Justice filed a three-page notice of appeal in each of those cases, noting: “[n]otice is hereby given.”
The threadbare filing does not contain any legal arguments but simply alerts the lower court that a case will be filed. As of this writing, the appeal will be docketed with the U.S. Court of Appeals for the 4th Circuit — but the docket is not yet publicly visible.
The appeal notice takes stock of the seven discrete findings by the lower court – and will challenge them each in turn.
From one of the substantively similar filings, at length:
(1) The appointment of Ms. Halligan as Interim U.S. Attorney violated 28 U.S.C. § 546 and the Appointments Clause of the U.S. Constitution. (2) All actions flowing from Ms. Halligan’s defective appointment, including securing and signing Ms. James’s indictment, were unlawful exercises of executive power and are hereby set aside. (3) The Attorney General’s attempts to ratify Ms. Halligan’s actions were ineffective and are hereby set aside. (4) Ms. James’s motion to dismiss the indictment…is granted in accordance with this order. (5) The indictment is dismissed without prejudice. (6) Ms. James’s request for an injunction barring Ms. Halligan from participating in the prosecution of this case is denied as moot. (7) The power to appoint an interim U.S. Attorney for the Eastern District of Virginia pursuant to 28 U.S.C. § 546 during the current vacancy lies with the district court until a U.S. Attorney is nominated by the President and confirmed by the Senate under 28 U.S.C. § 541.
Comey was indicted in September. James was indicted in October.
By late October, Comey’s attorneys had identified half of the successful formula for having the indictments dismissed – the statute undergirding U.S. Attorney appointments. This winning gambit approvingly cited an obscure 1986 Office of Legal Counsel memo prepared by future Supreme Court Justice Samuel Alito.
By early November, James’s attorneys offered the second half of the winning one-two punch: arguing Halligan had been appointed in violation of the U.S. Constitution’s Appointments Clause. This well-hewed piece of the puzzle directly cited the same ruling that nixed then-special counsel Jack Smith’s Mar-a-Lago prosecution of Trump.
Eventually, arguments on the broader appointment challenge were combined in the otherwise less-than-related two cases.
The government, for its part, downplayed the defense’s arguments about Halligan’s position as “at best a paperwork error,” during a hearing. The same DOJ attorney later ridiculed the notion that DOJ has been evading the Senate confirmation process with interim appointments as “fanciful.”
In multiple hearings, Currie appeared skeptical of the government’s arguments and hinted dismissals were in the offing.
The ensuing contretemps called into question not only Halligan’s power and authority, but also the work performed by the grand juries.
Again, the DOJ pushed back, with U.S. Attorney General Pam Bondi herself intervening to try to salvage the case, to no avail.
Soon, more cracks appeared as it became clear there were admitted problems with the operative Comey indictment itself.
As it turns out, the two-count indictment was not presented to the full grand jury after count one – a false statement charge in an initial three-count indictment – failed. Rather, the DOJ instead of presenting a new two-count indictment, removed the failed third count and had the grand jury foreperson sign the substitute document – one that differed from the document the full grand jury deliberated on.
In the end, the grand jury issues proved a bit ancillary.
Currie disqualified Halligan on Nov. 24.
The late-game efforts to salvage her position – and the two major cases she worked on – could now drag on for several months.
