ALEXANDRIA, Va. — A federal judge said at a hearing Thursday she would rule before Thanksgiving on whether to dismiss the high-profile criminal indictments against former FBI Director James B. Comey and New York Attorney General Letitia James.
Judge Cameron McGowan Currie gave no overt signs about how that ruling might come down, as attorneys grappled at the hearing over the wording of an 18-year-old statute that governs the attorney general’s ability to appoint interim U.S. attorneys.
Trump ally Lindsey Halligan obtained grand jury indictments against Comey and James shortly after her appointment as interim U.S. attorney for the Eastern District of Virginia. The defense teams contend that appointment was invalid.
Currie, who sits in the U.S. District Court for the District of South Carolina, is overseeing this part of the Comey and James cases.
The defense teams argue that law limits the Justice Department’s interim appointment power to 120 days total. But the Justice Department contends the wording allows for an attorney general to make multiple interim appointments and that a new 120-day clock starts for each one.
Ephraim McDowell, an attorney for Comey, said Thursday the government’s reading would “eviscerate” the Senate’s confirmation process for U.S. attorneys, providing an end run around a process that affords senators a say in who fills those positions as top prosecutor.
Under the government’s interpretation, the executive branch would “never” have to go through Senate confirmation again, he said. McDowell also pointed to the provision’s legislative history, saying the entire purpose of the 2007 statute was to stop the indefinite appointment of interim U.S. attorneys.
“That is all over the House report,” McDowell said.
The law, known as Section 546, states that an attorney general can appoint a U.S. attorney for a district “in which the office of United States attorney is vacant.”
They can serve until either the Senate confirms a U.S. attorney for that district, or “the expiration of 120 days after appointment by the Attorney General under this section.”
If that appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
The government, in its brief, argued that the attorney general must revisit their interim appointments every 120 days under the statute, making sure an appointee would be subject to “personal review by the Attorney General.”
Abbe Lowell, an attorney for James, criticized that argument in court Thursday, saying there was “no rhyme or reason” to such a review.
Justice Department attorney Henry Whitaker told the judge nothing in the statute limits the attorney general to only one appointment. The 2007 law repealed the indefinite structure of the interim appointments but still allows for multiple appointments, he argued.
Congress, he said, also knew that the executive branch had a history of issuing multiple appointments in the past under its interim power.
Currie, from the bench, pushed back on that point and said there had been less than 10 instances of that. She also commented that there was about 200 years of history in which judges made appointments.
Both defense teams also referenced an Office of Legal Counsel memorandum from 1986, which concluded the power to appoint an interim U.S. attorney after the 120 days would fall to the courts. The memorandum was authored by now-Justice Samuel A. Alito Jr.
A ruling from Currie could hamper or upend the indictments against Comey and James, prosecutions widely seen as part of a retribution campaign from Trump against perceived political adversaries.
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