Trump's lawfare takes a big L
The war isn't over but this battle was a rout.
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Lindsey Halligan, President Donald Trump’s comically incompetent US attorney, is out, and along with her, the indictments of former FBI Director James Comey and New York Attorney General Letitia James. So what’s next?
In the near future, of course, you can expect unhinged howling from the administration. White House superflack Karoline Leavitt is being very cool and normal about this, going on Fox News yesterday to complain and threaten James Comey.
“Everybody knows that James Comey lied to Congress. It’s as clear as day. And the judge took an unprecedented action to throw these cases out to shield James Comey and Letitia James of accountability based on a technical ruling.”
She followed this with “maybe James Comey should pump the brakes on his victory lap.”
Leavitt’s statement about Comey really highlights that the administration isn’t thinking of these cases as the government prosecuting a defendant. Instead, it’s Trump locked in a personal battle with Comey, and it’s just unfair that judges won’t let him win.
What happens next depends a lot on how much the government wants to go the mat on the legality of Halligan’s appointment and the now-dismissed indictments. If Trump were merely evil, rather than evil and fully unhinged, it would make the most sense to cut Halligan loose, making her the face of this failure, and stop trying to prosecute Comey and James.
It does not, however, look like that will be the government’s approach. Per Leavitt, Halligan is not only “extremely qualified but she was, in fact, legally appointed.”
Sigh.
The government can appeal the dismissal of the indictments, but that necessitates proving that Halligan was lawfully appointed. Put another way, the decision here didn’t turn on any challenge to the indictments themselves. Rather, the indictments are out because Halligan never had the authority to bring them in the first place. On appeal, the fight would therefore be limited to the appointment issue.
But if a higher court were to resuscitate the Comey and James charges by reinstalling Halligan as some form of US attorney for the Eastern District of Virginia, she’s still stuck with the fact that these indictments are garbage. Getting Halligan back in only fixes the Halligan problem, not the indictment problem.
The DOJ has already signaled that it’s determined to keep Halligan in her role, with Bondi announcing she had made Halligan a “special US Attorney, so she is in court, she can fight in court just like she was.”
This is ridiculous, of course, as this court ruling means Halligan is not allowed to work on any cases, period, as she’s not legally in her role. And she certainly can’t work on the Comey or James cases because they don’t exist any longer.
Additionally, the courts have generally not loved the “Pam Bondi magics away all the problems by naming someone a special US attorney” approach. In tossing Halligan, the court said it “reject[ed] the Attorney General’s attempt to retroactively confer Special Attorney status on Ms. Halligan.” Bondi’s argument also didn’t work when the government tried it with Alina Habba. Nor did it work with Bill Essayli.
If Bondi’s expansive view of special attorneys were adopted, it would basically destroy any requirement of Senate confirmation. It would vest all power in the AG to name whoever they want to a US attorney role with no checks or balances whatsoever.
The government has already made a trip to the Third Circuit over Habba’s appointment, appealing the lower court decision that she was not lawfully appointed. It did not go very well. During oral argument, Judge D. Brooks Smith, a George W. Bush appointee, called the government’s actions “a complete circumvention, it seems, of the appointments clause.”
Halligan’s situation is very similar to that of Habba and two other interim US attorneys, Sigal Chattah and Essayli, both of whom have been found to be unlawfully appointed. For all four of these attorneys, the administration essentially has to get a court to agree that there is no restriction on Trump and Bondi stringing together a series of temporary appointments to allow a handpicked US attorney to evade Senate confirmation indefinitely.
Sure, Trump will ultimately get this in front of his reliable pals at the Supreme Court, but it isn’t really clear how they could save Trump’s US attorney nominees without essentially throwing out the statute governing US attorney vacancies and the Appointments Clause and letting a president appoint whoever they want, whenever they want, and never have to go before the Senate. Yes, this Supreme Court has been extremely solicitous of Trump, giving him everything he wants, but it isn’t a given that the court’s conservatives would be willing to sign on to something that would let future presidents install US attorneys with no Senate confirmation.
As Leavitt alluded to in her comments yesterday, Trump could also demand new politicized prosecutions. Both the Comey and James indictments were dismissed without prejudice, meaning the government can refile the charges. For Comey, the statute of limitations has already expired, but the government has a six-month grace period to refile an indictment. Of course, to refile would require a new grand jury, a new indictment, and a new court case, and Lindsey Halligan has already proved herself spectacularly incompetent there.
Both indictments were already on shaky ground before this.
Lindsey Halligan is spectacularly bad at this
When Leavitt bragged about how extremely qualified Halligan is, she inadvertently revealed the biggest problem for both Halligan and the administration here. Even if the government got this reversed, they are then stuck with the plethora of other Halligan missteps that would warrant dismissal. Put another way, there is no world in which Halligan is “extremely qualified,” and all her actions have made that clear.
There’s the wee problem of admitting in court she had not shown the jury the second Comey indictment but presented it to the magistrate judge nonetheless. And then the part where she tried to walk that back a few days later, saying the full grand jury totally did approve the second indictment.
There’s also Comey’s motion for a bill of particulars — essentially that the government is obliged to provide the defendant with detailed information justifying the charges against them. Since Comey’s indictment ran a slim two pages and had no details at all, it isn’t absurd to think he could prevail. Cracking open the government’s justification for charging him is likely to show that there is nothing there.
Let’s not forget Comey’s motion to unseal those grand jury materials that the government very much does not want him to see. The magistrate judge in that case has already ruled that Halligan made “fundamental misstatements of the law that could compromise the grand jury process.”
There’s also the issue of whether Comey could prove that he was selectively and/or vindictively prosecuted. This is usually an incredibly high bar to clear, but when the president of the United States posts on social media that you should be prosecuted and that he’s going to swap in Halligan to make sure it happens, Comey might prevail.
Halligan is in the same boat with respect to the Letitia James case. Before the indictment was dismissed, James had motions pending for dismissal based on selective and vindictive prosecution and outrageous government conduct. She also had a motion for disclosure of grand jury records pending, which might have forced the government to show how Halligan somehow obtained an indictment from a grand jury empaneled in Alexandra after presenting evidence to a different grand jury in Norfolk.
It isn’t clear how things would unfold in terms of those existing motions, as they are basically moot in light of the dismissal based on Halligan’s unlawful appointment. It seems likely, however, that if the government gets this reversed, Halligan is stuck with all those same issues.
But what if the government did cut Halligan loose? Could that salvage things?
Good lawyers won’t touch bogus indictments
In theory, Trump could nominate someone actually qualified to be the US attorney for the Eastern District of Virginia, have that person be confirmed by the Senate, and then bring new indictments. The problem there is that all reputable prosecutors refused to touch both the Comey and James cases. The Venn diagram of capable, confirmable US attorney candidates and people willing to bring spurious indictments likely shows no overlap.
Even if Trump could convince someone to bring new indictments, it’s a career-ending move. Sure, you might get some approval and glory from Trump for pursuing a sham prosecution, but good luck finding a job after that.
Actual prosecutors are not fans of sham prosecutions because they can expose them to sanctions for prosecutorial misconduct and ethics complaints. That’s fine for Halligan, who clearly has no interest in being a lawyer aside from the opportunity to help Trump wreak vengeance. If she’s dinged with some sort of consequences, she’ll just get some other administration job or other right-wing sinecure. But if you are a lawyer who wants to continue practicing, sanctions and ethics complaints kinda wreck the vibe.
So now, we wait. It won’t take long for these cases to be appealed. You can also expect that the administration will keep pushing to find new and different ways to criminally charge both Comey and James if they can’t make these indictments stick. But for today, Lindsey Halligan is out of a job, and Comey and James aren’t facing charges, and that’s a reason to celebrate by pointing and laughing at the sheer incompetence on display here.
That’s it for today
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Thank you. These people have sold their souls to a madman. They have no self awareness at all. I am sorry, they need to seriously consider revoking citizenship on these bad actors. Benedict Arnolds, one and all…
Re the Court’s conservatives. Alito will have quite the conundrum. Because while he was at OLC, he authored the OLC opinion on the appointments clause that reasoned that appointments like Halligan’s are illegal.