Was Lindsey Halligan Validly Appointed as United States Attorney?

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There was a prior acting US Attorney for this district who was fired by trump. Evidently, that means that trump/Bondi can not appoint another acting US Attorney

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https://www.nationalreview.com/bench-memos/was-lindsey-halligan-validly-appointed-as-united-states-attorney/

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.”

I can see Comey also challenging this appointment because that may kill this indictment and then the statute of limitation may have run

[no_hypocrisy]

1. No.

[LetMyPeopleVote]

2. This idiot was not validly appointed

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I'd be curious to understand more about how Lindsey Halligan was appointed US attorney in ED VA.
If, as some reports indicate, AG Bondi purported to appoint her pursuant to 28 USC 546, then (on my understanding of the preceding appointments) her appointment might well be invalid. 1986 OLC opinion by a fellow named Alito suggests as much.
If Trump appointed her pursuant to Vacancies Reform Act, her title would be "acting United States Attorney." But indictment doesn't say "acting."

[malaise]

3. Oops!

Rec

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4. Senate Democrats are looking into the firing of the former acting US Attorney

Link to tweet

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5. Trump slip-up means James Comey prosecutor was not 'validly' appointed: Right-wing expert

Even far-right legal commentator Ed Whelan doesn't think the process by which President Donald Trump got former FBI Director James Comey indicted was above board.

Even far-right legal commentator Ed Whelan doesn't think the process by which President Donald Trump got former FBI Director James Comey indicted was above board.

— Raw Story (@rawstory.com) 2025-09-29T15:30:21.857Z

https://www.rawstory.com/ed-whelan

Writing for the National Review on Monday, Whelan — who became infamous for claiming Supreme Court Justice Brett Kavanaugh's sexual assault accuser confused him with someone else — argued that the prosecutor Trump put in charge of the Eastern District of Virginia, former defense lawyer Lindsey Halligan, was not "validly" appointed to that role.

The reason for that is complicated and technical, Whelan wrote — but it matters.

"There are two general authorities for filling a U.S. Attorney vacancy and two avenues under each authority," he explained. "One authority is section 546 of Title 28. Section 546 authorizes the Attorney General to appoint an interim U.S. 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.'"

The other way, he said, is subsection 3345(a)(1) of Title 5 of the Vacancies Reform Act, which says the first assistant in the U.S. Attorney's office becomes acting U.S. Attorney unless the president designates someone else — this is how he installed Alina Habba as acting U.S. Attorney in New Jersey despite the district court rejecting her after the 120-day interim cutoff, a matter currently being challenged in court.

"It seems clear that the Trump administration purported to place Halligan in office via an Attorney General appointment under section 546," wrote Whelan, because none of the DOJ statements about her identify her as an "acting" U.S. Attorney.....

"Section 546 is best read to mean that the Attorney General cannot make a second interim appointment under section 546 after the first interim appointment has expired," Whelan continued. "Instead, the authority to make an interim appointment then lies with the district court. This has been DOJ’s own longstanding position, set forth in a 1986 Office of Legal Counsel opinion by then-deputy assistant attorney general Samuel Alito" — now one of the most pro-Trump justices on the Supreme Court.

Indeed, he noted, Alito wrote in that opinion that Congress has the power to “place restraints on a statutory authority to make interim appointments” — and that they clearly did so here, in a way that makes Halligan's appointment illegal. This means the district court, not the president, fills the vacancy unless Trump can get Halligan confirmed permanently by the Senate.

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6. James Comey could get Trump's prosecutor outright disqualified from office: expert

Halligan may not have been validly appointed as acting attorney for this district. The statute of limitations has expired and if this indictment is thrown out, then the case against Comey may go away without a trial

James Comey could get Trump's prosecutor outright disqualified from office: expert

— Raw Story (@rawstory.com) 2025-10-02T00:00:33Z

https://www.rawstory.com/lindsey-halligan-2674146070/

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.