This afternoon, Federal Judge Cameron Currie dismissed the federal indictments of James Comey and Letitia James, without prejudice. His Opinion and Order in the Comey case finds, in response to Comey’s motion, that Lindsey Halligan was not properly appointed as the Interim United States Attorney for the Eastern District of Virginia.
Halligan’s appointment has been controversial for reasons that are mostly irrelevant. Judge Currie begins his Order by noting that Halligan is “a former White House aide with no prior
prosecutorial experience,” and that the Comey indictment was returned “just days” after her appointment. These observations, like the fact that Halligan is a former beauty pageant contestant, are wholly immaterial.
The issue turned on 28 U.S.C. § 546, which governs the appointment of interim U.S. Attorneys when a vacancy arises. (U.S. Attorneys are confirmed by the Senate; interim U.S. Attorneys are not.) The statute says that the Attorney General may make appointments to fill such vacancies. However, he cannot appoint someone whose nomination has previously been rejected by the Senate. It says that a person so appointed by the Attorney General may serve until the vacant U.S. Attorney position is filled, or for up to 120 days. If the 120 days expire, then the U.S. District Court may appoint an interim U.S. Attorney to serve until the vacancy is filled.
Here, Erik Siebert was appointed Interim U.S. Attorney for that district on January 21, 2025. When his interim appointment was about to expire, he was appointed to continue in that role by the district’s judges. Siebert resigned on September 19, 2025, reportedly because he did not want to bring the Comey and James cases–but that fact, too, is irrelevant. The only material point is that Siebert served as interim U.S. Attorney for more than 120 days.
The administration’s position is that the Attorney General can appoint an indefinite succession of interim U.S. Attorneys, with each serving up to 120 days, with that term potentially being extended in each case by the district court. Comey’s lawyers argued that under 28 U.S.C. § 546, the Attorney General’s power to make interim appointments expires after 120 days. After that point, any interim appointment must be made by the district court, as happened in this instance when Siebert’s interim appointment was about to expire.
The question is not free from doubt, but I think the court’s ruling is probably correct. Judge Currie cites relevant legislative history, and the ultimate point of § 546 (c) and (d) is, I think, to prevent presidents from circumventing the requirement that U.S. Attorneys be confirmed by the Senate by making interim appointments that could last indefinitely. It is notable, however, that there have been several instances in which presidents (Clinton and Bush) have “stacked” interim appointments in the manner now argued for by the Trump administration.
Having found that Halligan’s appointment was invalid, and having noted Halligan’s personal role in procuring the Comey indictment, Judge Currie concluded that the appropriate remedy is dismissal of the indictment without prejudice. While I have only read the Comey order, I take it that an identical order was entered dismissing the Letitia James indictment.
The administration’s rush to appoint Halligan and procure a grand jury indictment arose from the fact that the statute of limitations was about to expire on the perjury charge that the administration wanted to bring against Comey. The statute has now run, so it appears that Comey is off the hook. The James prosecution is still good, and I assume it will be renewed.
