The 1,287,923 defects in the Comey case ... so far
Welcome to the Rocket Docket, Lindsey Halligan!
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On September 25, the president’s lawyer Lindsey Halligan managed to secure a grand jury indictment of former FBI director James Comey for lying to Congress in 2020. That was the easy part.
Now Halligan is finding out that prosecuting a case is harder than it looks — particularly when that case has already been rejected by seasoned prosecutors as unwinnable. Add in the fact that it will be tried on the fastest federal docket in the country, and you’ve got the making of a major headache and likely a total humiliation in court.
And on top of all of that, Halligan’s appointment as US Attorney for the Eastern District of Virginia (EDVA) may not even be legal, meaning that the indictment is a legal nullity … which may actually be the least embarrassing outcome here for the Justice Department.
Personnel is policy
Halligan is anything but seasoned, having worked as an insurance defense lawyer in Fort Lauderdale before coming into Donald Trump’s orbit. She’s never prosecuted a criminal case and isn’t even licensed to practice law in Virginia. Luckily, a local bar card isn’t necessary for federal prosecutors!
She’s going up against Pat Fitzgerald, a former special counsel and a legal legend who served stints as the US attorney for the Northern District of Illinois and chief of the Organized Crime-Terrorism Unit at the Southern District of New York.
This imbalance is exacerbated by the fact that not one lawyer from EDVA will touch this thing with a 10-foot pole. Even Maggie Cleary, the MAGA loyalist that Attorney General Pam Bondi tapped to serve as Halligan’s deputy [read: do the real work] wouldn’t put her name on this indictment. And as of this week, CNN reports that Cleary has left the building.
Halligan had to go all the way to North Carolina, or “North Carolian,” to find prosecutors willing to associate themselves with this revenge porn, drafting assistant US Attorneys Tyler Lemons and Gabriel Diaz to the cause.
Auspicious! Even more auspicious! The auspicious-est yet! (Check the signature blocks — Diaz eventually figured out that his email is dot gov, but not what state he comes from.)
“Rocket Docket”
Lemons and Diaz showed up for Comey’s October 8 arraignment hoping to slow down this train wreck by claiming it was their first day and they were “just getting our hands around” it.
That excuse cut exactly zero mustard with Judge Michael Nachmanoff, a former federal public defender who worked as a magistrate in EDVA before being appointed as a district judge by President Biden. Magistrate judges serve a critical function handling pre-indictment and discovery matters, which is particularly vital on EDVA’s Rocket Docket, where court rules and local culture mean that cases move faster than in any other federal district.
Judge Nachmanoff spent his entire career here, and he’s not going to slow down to let a couple of carpetbaggers from “North Carolian” get up to speed because their boss rushed to indict before getting all her ducks in a row. Nor was he about to be snowed by the prosecutors’ whinnying about needing extra time for preparing for such a “complex” case.
“I’m a little skeptical of that,” Judge Nachmanoff said, according to Politico. “This does not appear to me to be an overly complicated case.”
The judge set a trial date for January 5, 2026, and ordered the government to turn over all exculpatory evidence within a week. Lemons and Diaz balked at having to work on a federal holiday, the first of three discovery disputes they lost inside five days.
They asked for an extra week to turn over evidence. Nope.
They tried to put off handing over discovery until they worked out the details of a protective order to shield the documents. Nope.
They argued that they should be able to designate discovery materials as too sensitive to be left in Comey’s hands without a babysitter, on the theory that he can’t be trusted not to post them on social media. GTFOH.
And if Halligan’s crew is having difficulty with the procedural stuff, they’ll likely find the legal issues even thornier. Fitzgerald has already promised to file several motions that might derail the case.
“We’re a little less certain of precisely what motions [these] would be, but there might be a Bronston literal truth defense motion,” Fitzgerald said in court. “There may be a grand jury abuse motion, outrageous government conduct motion, but those motions would be addressed to the indictment.”
But first he’ll be filing motions to dismiss for selective and vindictive prosecution and because of Halligan’s potentially illegal appointment.
Vindictive prosecution
It is almost impossible for a defendant to get a case dismissed because of selective or vindictive prosecution. Selective prosecution claims rest on the defendant being singled out and treated differently from other similarly situated people — and there just aren’t that many people who have been charged with lying to Congress.
But vindictive prosecution may be a slightly easier lift for Comey, thanks to Trump’s very big mouth.
For a vindictive prosecution claim to succeed, the defendant must show that the prosecutor acted with animus, charging him in retaliation for the exercise of some other legal right. Trump tried to get his own criminal cases dismissed by claiming that Special Counsel Jack Smith had vindictively indicted him at Joe Biden’s behest. But unlike Trump, Biden didn’t vomit his every thought onto social media.
As Fitzgerald said in court last week, “Our view is that this prosecution was brought at the direction of President Trump to silence a constant critic of him.”
In one of Halligan’s many losing motions, she complained that Comey’s lawyers sent “a 19-page letter that includes substantial and abnormal requests regarding the vindictive/selective prosecution allegation.” Safe bet that request includes information about multiple figures at the Justice Department, including FBI Director Kash Patel, who reportedly fired an agent for refusing to perp walk Comey on live TV, despite the fact that he’d already surrendered.
Fitzgerald will also want any communications with the White House where Halligan promised to indict Comey if Trump gave her the job.
US Attorney (???) Halligan
No one on earth thinks Lindsey Halligan was appointed to run the Eastern District of Virginia based on her sterling professional qualifications.
Halligan’s predecessor, Erik Siebert, was pushed out because he refused to charge Comey and New York Attorney General Letitia James, citing the prosecutorial code of conduct, which bars bringing prosecutions where there is no likelihood of achieving a conviction. Unburdened by pesky ethical considerations, Halligan got it done. And just in time, since the five-year statute of limitations was just days from running out on Comey’s allegedly false testimony in 2020.
But aside from the gross impropriety of appointing the president’s personal lawyer to prosecute his enemies, there’s also a strong argument that Halligan was never legally appointed at all. That’s because US attorneys have to be Senate confirmed, and multiple courts have now ruled that Trump can’t defeat that requirement by making successive 120-day “interim” appointments under 28 U.S.C. § 546.
In March, Trump appointed Alina Habba, another of his personal lawyers, to serve as US attorney for the District of New Jersey. When her term expired, he reappointed her through various procedural shenanigans. Bondi appointed Habba special counsel and also made her first assistant at the New Jersey US Attorney’s Office, so that she could effectively succeed herself under a law called the Federal Vacancies Reform Act (FVRA). Multiple criminal defendants immediately moved to dismiss their cases, arguing that Habba had been illegally appointed, and thus everything she touched was a legal nullity.
Because the case involved the validity of cases pending before federal judges in New Jersey, the chief judge of the Third Circuit assigned it to Chief Judge Matthew Brann of the Middle District of Pennsylvania. He ruled that § 546 does not permit successive appointments, which would allow the president to defeat the constitutional mandate to seek advice and consent of the Senate, and so Habba’s reappointment was invalid. And lest Brann be accused of wild-eyed liberalism, this exact interpretation of § 546 was endorsed by one Sam Alito in 1986 when he was a deputy assistant attorney general in Ronald Reagan’s Office of Legal Counsel.
In the District of Nevada, the DOJ tried the same maneuver to keep Sigal Chattah in office. On the 119th day of Chattah’s interim appointment as US Attorney, Bondi appointed her special counsel and also her own first assistant so that she could succeed herself under the FVRA. The chief of the Ninth Circuit assigned the case to Chief Judge David Campbell of the District of Arizona, who agreed with Judge Brann that none of this was kosher.
The Trump administration has never publicly explained the legal basis for Halligan’s appointment. We have no idea if she was tapped as special counsel, interim US attorney, or deputy head of EDVA before Cleary, the placeholder, was shuffled out. Whatever the justification, Comey will argue that Trump already used up his interim appointment on Erik Siebert, and could not legally install Halligan in the job. In fact, he’s already informed Judge Nachmanoff that a motion to dismiss based on Halligan’s unlawful appointment is imminent, and so the Fourth Circuit will need to appoint an out-of-district judge to consider his claim.
The criminal defendants who challenged Habba and Chattah’s appointments are still facing charges, since multiple assistant US attorneys besides Habba worked on their cases. But Comey’s case is different. No other lawyer but Halligan was willing to sign the indictment, and so, if her appointment was illegal, that indictment goes away. And because the statute of limitations has already expired, it goes away forever.
Which is probably the best outcome for the government, since it would spare the Justice Department having its dirty, vindictive laundry aired in open court before getting ignominiously spanked by Fitzgerald for having brought such a garbage case. But even so, it would be very, very funny.
That’s it for today
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I've been known to make a typo or two when posting replies/comments on PN and other outlets. However, the misspelling of "Carolian" in a court document just goes to show the Keystone Kops level of incompetence of these pesky wasps who are harassing James Comey. How about running spellcheck...hello. Like others, I have absolutely no respect for his actions against Hillary Clinton during the waning months of the 2016 presidential campaign that may have cost her the election (we'll never know for sure). I find it ironic that the most egregious liar of all time (I'm looking at you, orange-faced lunatic) is pursuing Comey for lying. If there is still justice on this earth, this case will be dismissed forthwith and the incompetent lawyers who wasted the court's time should be disbarred or at least sanctioned.
I fail to find anything in this government amusing even if it is a government of the most incompetent. I do not like Comey, but like his false accusation and trial even less.
I am preparing for my own No Kings rally here in Bremen, Germany on Saturday. I spent the last one marching in Chicago. This one will be much more intimate.
I have taken to escaping from the news and the more serious book my book club is reading, which is "Money, Lies and God" by Katherine Stewart with watching the series "Call the Midwife." It provides nice escape from the times, and a firm reminder that life before birth control and legal abortion was about babies, babies, babies. Not an easy time for women. Not in the East End of London, not in Chicago and not in Bremen. I do not want to go back to the world that Trump, pretending to be one of his Christian Nationalist followers is building for us.