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Comey, James Press for Case Dismissal 11/14 06:12
ALEXANDRIA, Va. (AP) -- Lawyers for former FBI Director James Comey and New
York Attorney General Letitia James asked a judge Thursday to dismiss the cases
against them, saying the prosecutor who secured the indictments was illegally
installed in the role.
U.S. District Judge Cameron McGowan Currie said she expects to decide by
Thanksgiving on challenges to Lindsey Halligan's appointment as interim U.S.
attorney for the Eastern District of Virginia. That decision could help
determine the fate of the politically charged cases, which were both shepherded
by the hastily installed Halligan and together have amplified concerns that the
Justice Department is being used as a weapon to target President Donald Trump's
perceived adversaries.
Halligan was installed in the job at Trump's urging by Attorney General Pam
Bondi in September, just days before Comey was indicted, in what defense
lawyers say was an end-run around the constitutional and statutory rules
governing the appointment of U.S. attorneys. They say the maneuver was designed
to ensure indictments against the president's political opponents after the
prosecutor who had been overseeing the two investigations, but had not brought
charges, was effectively forced out.
"Ms. Halligan was the sole prosecutor in the grand jury room, and when the
sole prosecutor lacks the authority," said Ephraim McDowell, one of Comey's
defense lawyers, "that's not going to be a harmless error."
U.S. attorneys, top federal prosecutors who oversee regional Justice
Department outposts across the country, are typically nominated by the
president and then confirmed by the Senate. Attorneys general do have the
authority to name an interim U.S. attorney who can serve for 120 days, but
lawyers for Comey and James argued that once that period expires, the law gives
federal judges the exclusive say of who gets to fill the vacancy.
The interim US attorney resigned under pressure
After then-interim U.S. attorney Erik Siebert resigned in September while
facing Trump administration pressure to bring charges against Comey and James,
Bondi installed Halligan, a White House aide with no prior prosecutorial
experience. The appointment followed a Trump post on Truth Social in which he
complained to Bondi about the lack of prosecutorial action against his
political enemies and said, "JUSTICE MUST BE SERVED, NOW!!!"
Siebert had been appointed by Bondi in January to serve as interim U.S.
attorney. Trump in May announced his intention to nominate him, and judges in
the Eastern District unanimously agreed after his 120-day period expired that
he should be retained in the role.
But after the Trump administration effectively pushed him out in September,
the Justice Department again opted to make an interim appointment in place of
the courts, something defense lawyers say it was not empowered under the law to
do.
"If the government were to prevail here," McDowell said, then it "would
never need to go through Senate confirmation again for U.S. attorneys." He said
any dismissal of the indictment must be permanent, with no opportunity to bring
the case again, to avoid rewarding the government for a violation.
The Justice Department defends Halligan's appointment
The Justice Department maintains that the law does not explicitly prohibit
successive appointments of interim U.S. attorneys by the attorney general.
Henry Whitaker, a lawyer for the department, argued that the indictment was
properly returned by a grand jury and should not be dismissed over what he
described as at most a paperwork or clerical error.
"The grand jury made a decision based on the facts and the law, and they
followed their oath," Whitaker said.
He also said that even if there were questions about Halligan's appointment,
they were resolved by the fact that Bondi had personally ratified the
indictment and reviewed the grand jury proceedings. But Currie, the judge,
questioned whether that was possible given that a section of the grand jury
proceedings that were produced to her was, for unexplained reasons, missing a
section.
A Justice Department spokesperson later said that there was no missing time
and that the time period in question concerns when the grand jury was
deliberating, which "would not be included in a transcription."
Comey has pleaded not guilty to charges of making a false statement and
obstructing Congress, and James, a Democrat, has pleaded not guilty to mortgage
fraud allegations. The challenges to Halligan's appointment are part of a
multiprong effort to get the prosecutions tossed before trial. Their lawyers
have separately argued that the prosecutions are improperly vindictive and
motivated by the president's personal animus toward their clients and should
therefore be dismissed.
Trump's history with Comey and James
Comey, as FBI director in the early months of Trump's first term, infuriated
the president through his oversight of an investigation into potential ties
between Russia and Trump's 2016 campaign. Trump fired Comey in May 2017. The
two have been open adversaries since, with Comey labeling Trump "unethical" and
comparing him to a Mafia boss and Trump branding Comey an "untruthful slime
ball" and calling for him to be punished because of the Russia investigation.
James has been a frequent target of Trump's ire, especially since she won a
staggering judgment against him and the Trump Organization in a lawsuit
alleging he defrauded banks by overstating the value of his real estate
holdings on financial statements. An appeals court overturned the fine, which
had ballooned to more than $500 million with interest, but upheld a lower
court's finding that Trump had committed fraud.
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