EDITORIAL: Judge tosses Comey, James indictments — for now
A federal judge has dismissed indictments against former FBI director James Comey and New York Attorney General Letitia James. The move should be a lesson for the White House.
On Monday, U.S. District Judge Cameron Currie, appointed in 1994 by President Bill Clinton, sided with Mr. Comey, who had argued that the prosecutor who brought the case against him, Lindsey Halligan, was appointed in illegal fashion. Because Ms. Halligan was also the sole signatory on the James indictment, the judge vacated that case, too.
“All actions flowing from Ms. Halligan’s defective appointment, including securing and signing Mr. Comey’s indictment, were unlawful exercises of executive power and are hereby set aside,” the judge wrote. On the James case, Judge Currie noted that Ms. Halligan had been ”unconstutionally appointed” and exercised power that she did not “lawfully possess.”
This could have been avoided had the administration followed the usual procedures in making such appointments. Instead, the White House relied on a unique interpretation of federal law to bypass Congress and install friendly U.S. attorneys, including in Nevada. But White House efforts to stretch statutes to accommodate President Donald Trump’s agenda always carried the risk of judicial rebuke.
Under the law, the attorney general may make interim appointments that last 120 days. If the Senate fails to confirm the nominee during that period, the law states, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
Ms. Halligan was the Trump administration’s second interim appointment for the Eastern District of Virginia. Rather than allow the district court to fill the vacancy, the White House took matters into its own hands, arguing that the law allowed an attorney general to make multiple interim appointments. But Judge Currie rejected this view, which would neuter the constitutional “advice and consent” function of the Senate. Other judges have reached the same conclusion regarding appointments in New Jersey, California and Nevada.
Judge Currie’s ruling allows the government to refile the cases against Mr. Comey — indicted for lying to Congress — and Ms. James — facing charges relating to mortgage fraud. While there are now statute of limitation concerns regarding the former, there are none surrounding the latter. Expect the Trump administration to push on.
Regardless, the administration has seen only two of the president’s U.S. attorney nominees confirmed so far this term. That’s the root of the problem. If White House officials don’t want to chance further problems down the road, they will compile a list of competent prosecutors who could pass Senate muster rather than insist they can simply pile interim appointments on top of each other in perpetuity.
