The Justice Department again defended Attorney General Pam Bondi's appointment of former Trump personal lawyer Lindsey Halligan as an interim U.S. attorney in an appeal of a judge's dismissal of the indictments against New York Attorney General Letitia James and former FBI Director James Comey.
The filing Monday argued U.S. District Judge Cameron Currie was wrong to dismiss the criminal indictments based on her finding that Halligan was unlawfully appointed.
In her November ruling, Currie determined that Halligan's appointment ran afoul of a 120-day time limit for a U.S. prosecutor to serve in the role without Senate confirmation. Bondi picked Halligan to replace Erik Siebert, then the U.S. attorney for the Eastern District of Virginia, who had not been confirmed by the Senate within the 120-day period and who ultimately resigned after resisting pressure to prosecute Comey and James.
Comey's and James' lawyers argued that under the law, federal judges of the Eastern District of Virginia held responsibility for naming Siebert's replacement at that point, not Bondi. Currie ultimately agreed and then ruled that because Halligan was the only prosecutor to present the cases and sign the indictments against Comey and James, those indictments needed to be voided.
Justice Department lawyer Henry Whitaker argued in the 67-page filing Monday that Currie's decision "ousts the Attorney General of her appointment authority" and "mistakenly aggrandizes the district court’s appointment authority at the expense of the Executive Branch’s, which is where the Constitution assigns authority to prosecute crime."
Whitaker downplayed Bondi's erroneous citation of a statute related to her authority to appoint U.S. attorneys in her initial order naming Halligan for the role, which Currie had said actually didn't authorize Halligan to pursue the indictments. Whitaker called Bondi's mistake a “paperwork mistake.”
"Even if that paperwork mistake was legal error, it was not one that prejudiced defendants; and it has in any event been cured several times over by Attorney General orders ratifying Halligan’s actions before the grand juries and her signature on the indictments," Whitaker wrote.
Whitaker argued that questions over Halligan's authority to secure indictments were not whether Bondi "properly appointed" her, but about "whether the Attorney General authorized her to represent the United States in criminal proceedings."
"The answer is plainly yes," he wrote.
NBC News has reached out to lawyers for Comey and James for comment.
James had been facing mortgage-related charges, and Comey faced charges of making a false statement and obstructing a congressional proceeding. Both Comey and James have maintained their innocence and pleaded not guilty.
Whitaker wrote in his Monday filing that Comey and James were not indicted by Halligan, but by a grand jury of their peers.
“The grand juries’ indictments should not be invalidated based on Halligan’s purportedly unlawful appointment when there is no colorable basis to conclude that their decisions would have been any different had the defect in title been cured," he wrote.
The Justice Department failed twice to secure new indictments against James after her case was tossed out, NBC News has reported.
The Justice Department's cases against Comey and James come as President Donald Trump has pushed for the department to look into his political opponents. The Justice Department is also pursuing a case against former Trump national security adviser John Bolton, accusing him of improperly handling classified materials. Bolton has denied any wrongdoing and pleaded not guilty to the charges.
