There is a lot that is outrageous about the process that resulted in yesterday’s indictment of James Comey. I will focus here on what appears to be a fatal legal flaw.

As I understand the facts, it seems highly doubtful that Lindsey Halligan has been validly appointed as United States Attorney in the Eastern District of Virginia. If her appointment is invalid, so is her indictment of Comey.

Section 546 of Title 28 of the United States Code authorizes an Attorney General to appoint an interim United States Attorney for a term of 120 days. Under section 546(d), once the 120-day term expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”

Acting Attorney General James McHenry evidently appointed Erik Siebert as interim United States Attorney on January 21, 2025. After his 120-day term expired, the judges of the Eastern District of Virginia appointed him to continue to serve.

On May 6, President Trump nominated Siebert to be United States Attorney. His nomination had advanced to the Senate floor when Trump learned that Siebert had “told senior Justice Department officials that investigators found insufficient evidence to bring charges against [New York attorney general Letitia] James and had also raised concerns about a potential case against Mr. Comey.” Siebert then resigned as interim United States Attorney, or Trump fired him. (Trump insists on the latter: “He didn’t quit, I fired him!”)

Can the Attorney General make a second interim appointment under section 546 when the first interim appointment has expired? The most natural reading of section 546 is that the authority to make the interim appointment then lies with the district court. And that’s evidently the position that the Department of Justice itself adopted in a 1986 Office of Legal Counsel opinion written by none other than Samuel Alito. That opinion itself might not be in the public domain, but a 1993 OLC opinion (p. 3 n. 5) states that the Alito opinion “suggest[s] that the Attorney General may not make successive interim appointments pursuant to section 546.”

Former FBI Director James Comey has lots of different ways he can defeat the criminal indictment against him for false statements and obstruction of justice, former U.S. Attorney Barbara McQuade told MSNBC's Melissa Murray on Wednesday — but one of the most scorched-earth methods might be getting Trump's federal prosecutor in charge of the case disqualified.

The prosecutor, Trump's former defense lawyer Lindsey Halligan, was appointed to oversee the Eastern District of Virginia after her predecessor, also a hand-picked Trump appointee, determined there was insufficient evidence to prosecute Comey for statements he made during Senate testimony. Halligan has moved forward per Trump's wishes, but has faced repeated setbacks as she has no significant prosecutorial experience, had to be coached through working with the grand jury, and didn't file the correct charging documents......

"I don't know," admitted McQuade. "You know, I think Jim Comey's got to think strategically here. If he's innocent, he might want to just assert his right to a speedy trial, say, let's go and dare Lindsey Halligan to get ready for this trial and prove him guilty beyond a reasonable doubt. I imagine, though, he's going to at least have some conversations with his lawyer, Patrick Fitzgerald, who's an outstanding lawyer, about filing motions for either selective prosecution, a violation of due process rights to a fair trial, or even challenging the legitimacy of the appointment of Lindsey Halligan."

With respect to that last option, she added, "It appears to violate all of the various ways a U.S. attorney can be appointed ... under the Vacancy Reform Act, and so maybe they want to go after one of those bases to get the case dismissed. But I could imagine Jim Comey saying, 'You know what? Let's go to trial because I am confident I'm going to prevail,' and it will happen quickly and be over. And then he would be fully exonerated and cleared. So that's a strategic decision he's going to have to make."

Earlier this year, a federal judge ruled that Alina Habba, another former Trump defense lawyer appointed through questionable procedures to head up federal prosecutions in New Jersey, was unlawfully appointed. A similar ruling came down this week against Sigal Chattah, Trump's choice for acting U.S. Attorney in Nevada.