Harry Litman - After the shipwreck

Five Questions in the Wake of the Comey and James Dismissal

Predictable though they may have been, the dismissals of the indictments of James Comey and Letitia James were still thunderous. Judge Cameron McGowan Currie held that Lindsey Halligan’s appointment as U.S. Attorney violated the statutory scheme Congress created to govern vacancies in federal prosecutorial offices. Her decision brought to a crashing halt the most corrupt actions yet undertaken by the Trump-Bondi Justice Department and left DOJ staring at wreckage it now must somehow navigate.

Currie’s analysis was meticulous. She emphasized that Congress had constructed a “detailed statutory scheme”—a sequence of default rules, limits, and checks designed to prevent the kind of end-run the administration attempted here. After an initial 120-day interim appointment expires, the baton passes to the district court, which may appoint a temporary U.S. Attorney who serves until Senate confirmation. That 120-day clock had already been exhausted by Eric Siebert, the career prosecutor—and Trump’s previous choice to head the office—fired for refusing to pursue a political reprisal case against Comey.

The government’s contrary theory, Currie wrote, would turn the structure “on its head,” letting a President indefinitely cycle unconfirmable loyalists through contrived “acting” or “interim” posts. Currie also found a separate Appointments Clause violation. The clause permits Congress “by law” to provide for appointment of inferior officers (such as U.S. Attorneys), but Halligan’s extra-statutory position was not created by law. And Bondi’s late-filed “ratification,” purporting to retroactively appoint her to a different role, was meaningless, since Halligan was never lawfully in office.

Moreover, even for the most fervent unitary executive jocks, the presence of the contrary appointment power in the Constitution itself swats away the claim that Congress’s scheme violates Article II.

https://harrylitman.substack.com/p/after-the-shipwreck