Lawyers for former FBI Director James Comey and New York Attorney General Letitia James asked a judge to dismiss their criminal charges on the grounds that the Trump-appointed prosecutor who charged them was illegally appointed.
In a hearing Thursday, U.S. District Judge Cameron Currie pressed Justice Department lawyers on the government’s conduct in bringing charges against Comey and James, which were filed just weeks apart at the direct insistence of President Donald Trump after he removed a previously appointed person who oversaw the powerful U.S. Attorney’s Office in the Eastern District of Virginia and replaced him with Lindsey Halligan, a White House aide and former insurance attorney with no prior prosecutorial experience.
Lawyers for Comey, who has pleaded not guilty to allegedly making false statements to Congress, and James, who has pleaded not guilty to charges related to mortgage fraud, argued that the cases against them are “fatally flawed” because Halligan’s appointment violates the Appointments Clause of the Constitution.
Judge Currie said she would plan to rule before Thanksgiving.
While Currie did not indicate how she will ultimately govern, her questions suggested she was skeptical of the administration’s actions in its hasty appointment of Halligan, who quickly moved to bring charges against two of Trump’s alleged political enemies without the support of career prosecutors in his office.
One of the arguments centered on revelations in a legal brief earlier this month that, more than a month after Halligan was appointed to lead the office, U.S. Attorney General Pam Bondi signed an additional order seeking to retroactively name Halligan as a “Special Counsel” whom she had authorized to pursue the Comey and James indictments.
In his order, Bondi said that “based on my review” of Halligan’s appearances before the grand juries that indicted both Comey and James, he sought to further affirm support for his actions.
In this March 6, 2025 file photo, Donald Trump’s attorney Lindsey Halligan holds ceremonial proclamations to be signed by Donald Trump in the Oval Office of the White House in Washington, DC.
Al Drago/Getty Images, FILE
But Judge Currie said that was not possible because Bondi “could not have” reviewed all those materials. The judge revealed during the hearing that a portion of the transcript of Halligan’s grand jury appearance, from 4:28 p.m. on the day of the indictment until the indictment was issued, is missing.
“It seems to me,” the judge said, that “there was no court reporter present” and, if there was, “she did not transcribe that part.”
“How is the attorney general saying she reviewed “grand jury material” when it didn’t exist?” the judge asked.
Henry Whitaker, arguing for the government, told the judge that Bondi’s “knowledge of the material facts” was all that was needed to sign a document retroactively ratifying Halligan’s appointment.
Whitaker further argued that the issues raised by Comey and James in attempting to invalidate Halligan’s appointment were based on “at best, a paperwork error” and requested that if Currie were to disqualify Halligan, he leave the allegations in place.
The legal challenge comes on the heels of other successful efforts to disqualify prosecutors that the Trump administration had attempted to install in at least three other U.S. attorney offices in Los Angeles, Nevada and New Jersey beyond the 120-day limit set by federal law.
Judge Currie, appointed by former President Bill Clinton of South Carolina, was appointed last month to oversee the challenge to Halligan’s appointment.
In legal writings, attorneys for Comey and James have pointed out the unusual series of events that led to Halligan’s eventual appointment to lead the office after the removal of Erik Siebert, whose judges in the Eastern District of Virginia had voted unanimously to lead the office on an interim basis after his 120-day appointment by Attorney General Pam Bondi expired.
Siebert, as ABC News previously reported, had resisted bringing the cases against Comey and James after the office’s career prosecutors determined that the evidence against them would likely fail to convince jurors of their guilt.
But just four days after Halligan was installed to run the office, sources say, she overruled prosecutors’ recommendations and personally presented charges against Comey to a grand jury, which voted to indict him on two of the three charges requested by Halligan. Just two weeks later, Halligan again appeared in person before a grand jury to request James’ indictment.
“The President and the Attorney General appointed the President’s personal attorney as Acting U.S. Attorney in violation of a clear legal order so that the Acting U.S. Attorney could indict an outspoken critic of the President just days before the relevant statute of limitations expired,” Comey’s lawyers said in a filing last month.
Critics say the accusations are part of a payback campaign by Trump against his perceived political enemies, but Vice President JD Vance has said such prosecutions are “driven by law and not politics.”
Both James and Comey have urged Judge Currie to dismiss their allegations with prejudice, which would prevent the government from bringing charges against them again if Halligan’s appointment were invalidated.
