Into the Weeds
A Federal Judge in South Carolina, Cameron McGowan Currie, recently threw out indictments of former FBI Director James Comey and New York Attorney General Letitia James. The decision did not deal with the substance of the charges. Judge Currie ruled that, as a matter of law, the US Attorney for Eastern Virginia was not legally appointed to her office. And since the Trump-appointed Lindsey Halligan was the only signature for the United States Department of Justice on the indictments, the indictments themselves were invalid.
Talk about going down “into the weeds” of legality. But Judge Currie wasn’t just dealing with the political “hot potato” of retribution and revenge. She had a much broader point, the consistent actions of the Trump Administration to subvert the Constitution of the United States. Halligan’s appointment was only the tip of the iceberg.
Presidential Appointments
It all goes back to the basic “checks and balances” of the branches of government set up in the US Constitution. The President has the right to appoint the officers of the Executive branch. Most of those appointments, including US Attorneys, are required to be approved by two-thirds vote of the US Senate. And the authors of the Constitution did not see the Congress as a “full-time” body. They allowed the President to make “temporary” appointments during recesses of the Senate (US Constitution, Article 2, §2).
So the normal method of appointing US Attorneys (there are 93, one for each Federal District), is that first the President nominates a candidate. Then the Senate holds hearings and determines whether to confirm by two-thirds or not. The Senate, by tradition, gives wide latitude to the President to appoint “his choices”. Traditionally, over 90% are confirmed.
Also by tradition, US Attorneys resign from their office at the end of the Presidential term. So in this particular case, the Eastern District of Virginia, the Biden-appointed Jessica Aber resigned after Trump was inaugurated. Her assistant, Eric Siebert, was temporarily appointed (US Code §546) to serve in the role for up to 120 days under Federal law. He was well on the way to Senate confirmation. All of the parties involved: the President, Virginia’s Republican Governor, and even the two Democratic Senators from the state, favored confirming Siebert.
Revenge or Evidence
But Siebert made a “fatal” mistake. He refused to indict two of Trump’s “enemies”, Comey and James. He simply could not find the evidence to back an indictment. By law, there needs to be enough evidence to create “probable cause” that a crime was committed. That’s more than a 50% certainty, that it happened. In addition, by Department of Justice regulation, the prosecutor must be reasonably sure they can reach the “beyond reasonable doubt” standard , 90% certainty for conviction in court. Siebert didn’t think he had either standard.
The Trump Justice department fired Siebert. They then appointed another “temporary”, Lindsey Halligan, a real estate lawyer that previously did work for Trump. The legal issue is on this second appointment. According to 28 US Code §546 after 120 days, “If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled.” In simple English, after 120 days, the local District Court (judges) gets to fill the vacancy, until the Senate confirms a candidate.
Judge Currie is not a local district court judge. Because of the conflict of powers, the Comey/James indictments case was heard by an “out-of-district” Federal judge in South Carolina. Halligan’s signature was the only one (and only attorney willing to sign) on the indictment. Judge Currie ruled that the indictments themselves were invalid.
Trump’s Appointee
In multiple other Federal Courts, judges are citing Judge Currie’s decision in challenges to Trump temporary appointees. Currently five different so-called US Attorneys are under scrutiny. And the Trump Administration is fighting back, calling Currie a “Democrat-Activist” Judge (she was appointed by Bill Clinton). The Justice Department is also lashing out at other Judges respecting Currie’s decision.
Federal Judge David Novak, a Trump appointee, demanded that Halligan explain to the Court why she is still acting as the US Attorney. The entire weight of Justice’s leadership struck back. Attorney General Bondi, Deputy Attorney General Blanche and Halligan all signed onto to a response. It said that, “The bottom line is that Ms. Halligan has not ‘misrepresented’ anything and the Court is flat wrong…” (News Nation).
But the reality is simple. If Trump can temporarily appoint, over and over again without check, then the Senate is denied the power to confirm appointees. The Courts can step into this early with their ability to appoint US Attorneys. But the larger point is all about the Trump Presidency trying to grab unlimited powers.
Of course, the Supreme Court will have a say in this decision. And no one should feel secure that they will even take a stand, or what their decision might be.
