A Thanksgiving Special: Pardon Me, Is That Indictment Lawful?

[00:00:00] Welcome to Discourse where we cut through the noise and make sense of the chaos. I'm your host, Wayne Unger. I'm a law professor and former Silicon Valley nerd, and I've spent years breaking down complex topics into digestible takeaways. And on this podcast, we'll take a deep dive into the pressing issues shaping our world in law.

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All right. Welcome back to Discourse. I'm your host, Wayne Unger, and we are recording today's episode, or at least the bulk of it, on Wednesday, November 26th at 3:00 PM. Now, I note on this episode that we will feature a special guest, the former US attorney for the District of Connecticut. Vanessa Avery will be joining us, but we recorded the interview with Vanessa Avery on Tuesday evening, just as the end of the workday neared. And we had the chance to [00:01:00] digest exactly what happened in the James Comey and Leticia James cases. What did the federal district court rule and what does that mean for the future of those cases? You might recall at the end of September that the Department of Justice sought and obtained two indictments against two individuals who are generally perceived to be political enemies of Donald Trump and his administration. The first case was against the former FBI Director James Comey, and the second case was against the sitting New York State Attorney General Letitia James.

Now in those cases, on Monday evening, short of close of business, the court ruled. That both indictments against James Comey and Leticia James ought to be dismissed because the sitting attorney for the Eastern District of Virginia was unlawfully appointed. We'll break that down, and that is why I invited a former US attorney, [00:02:00] Vanessa Avery, to discuss exactly what happens because of course, who better to discuss the legal authority of a US attorney than a former US attorney? Now Vanessa is a partner at McCarter and English, and like I said, she served as the US attorney for the District of Connecticut. So with that, I welcome and please join me in welcoming Vanessa Avery to the podcast.

Thank you for having me.

So let's just recap for our listeners the procedural history of these cases. We had the interim attorney, uh, for the district of Easter, east Virginia, Eastern District of Virginia. There we go. I said it right that time, and he stepped down.

And Trump appointed, well, his attorney general appointed Lindsey Halligan, who as many news reports have reported, has no prosecutorial experience. She comes from an insurance, law background, and she [00:03:00] secured the indictments against the former FBI director James Comey and Leticia James. Now these particular defendants challenged the mere indictments themselves. And what we got yesterday was a ruling from the court on the indictments. And in short, ladies and gentlemen, the court dismissed the indictments against James Comey, and Leticia James. Now, part of this case all stems from the president's ability to appoint principal and inferior officers.

And that includes US attorneys across the country, but for inferior officers.

The language of the appointments clause also provides that Congress may by law vest the appointment of inferior officers in the President alone, In courts of law or in heads of department. And that's relevant, when we get into the nitty and gritty of these indictments. So with that [00:04:00]background out of the way, Vanessa, turning to you,

what happened in the Eastern District of Virginia and Lindsay Halligan, the insurance attorney, how did she come into the role exactly?

Sure. On January 21st, attorney General Pam Bondi appointed Eric Seabert as the interim US Attorney for the Eastern District of Virginia that began his 120 day period of serving in the role. And his time expired May 21st, 2025. At which point, or prior to that point, the district judges in the Eastern District of Virginia appointed him under their authority, section 5 46 D to continue in the role as an acting US attorney.

 At some point thereafter, Mr. Seabert informed colleagues of his resignation because he [00:05:00]had expressed some concerns to Senior Department of Justice officials about whether or not charges should be brought against former FBI director James Comey and Attorney General for New York, Leticia James.

After his resignation became effective, attorney General Pam Bondi then decided to appoint.

 Acting US attorney Lindsay Halligan into the role.

And then it was Lindsay who sought the indictments of these two defendants. Is that right?

That is correct.

Okay. So that sets the stage. So Lindsay steps into this role. Attorney Halligan steps into this role as interim or acting US attorney for the Eastern District of Virginia.

Now in, in, in your opinion, Vanessa, what stands out to you regarding how these cases were brought and how these indictments were obtained by, Halligan?

What stands out [00:06:00] to me is the extraordinary nature of the indictments in the first place. There are longstanding principles of federal prosecution, which in a nutshell say that.

Decisions to indict or not indict individuals should be based on the law as applied to the facts and the evidence in a particular case. Not based on any particular political decisions, certainly. And so some of what we are seeing not only in the Eastern District of Virginia, but across the country, violate longstanding Department of Justice principles.

About nonpartisanship and focusing on the facts and evidence. Um, there's a, there's a saying that we make decisions at the Department of Justice without fear or favor. And so what we're seeing is a huge departure from that

So in, in these cases, brought against these defendants and, and they're not the only ones, right?

That have been targeted by the Trump [00:07:00] administration and, and Bondi's, department of Justice. Uh, we, we, well granted this is the Defense Department, but just yesterday it also broke that, Senator Mark Kelly of Arizona is now the target of an investigation by the Defense Department. And it's the Defense Department because he's military or well retired military.

And so they're looking at applying the military code to him, so this isn't the first time, of putting some political pressure on the, on prosecution and investigation. Right.

That's right. We, we saw similar things in other cases as well.

And, and if, if I remember correctly, Halligan kind of brought these in a rushed manner. And specifically the Comey indictment. Comey's indictment came first. James' indictment came second. But what was the, what was the reason for Halligan kind of rushing and really the Justice Department and Bondi and, and Trump rushing to get these [00:08:00] indictments done, for Jim Comey's case?

Right. So for Director Comey's case in particular. The department was up against a statute of limitations concern. with regard to his case. He was charged with making false statements and obstruction of justice. And in both of those cases, there's a five year statute of limitation that applies. And the facts that were, that formed, the basis for that indictment happened in uh, in 2020.

In 2020. So once that five year mark hits, then the Justice Department effectively as barred from bringing any, criminal charges against, or seeking an indictment against the former director.

Right, exactly. And that date to that particular date was September 30th, 2020. And so at the time, US Attorney Halligan was pursuing the indictment and the day that she brought the indictment or [00:09:00] purported to indict him, that date was September 25th, 2025, just five days before the expiration of the statute of limitations.

I see. So in that way we go off that September 25th date, and she managed to get the indictment, get the case before, a grand jury, secure the grand jury indictment, and, avoid that statute of limitations issue.

Right at the time, that's what she thought and that's what the department thought, that they made it in, in the nick of time with five days to spare

Now the case goes to a court, goes to a judge, and both defendants director Comey and Attorney General James, move to dismiss the indictments.

So what were their arguments regarding the lawfulness of Hagan's appointment as the US attorney?

That her appointment was unlawful and improper and therefore everything she did was rendered unlawful [00:10:00] and improper.

At the top of the episode, we mentioned the appointments clause, how the President of the United States has the ability to appoint all principle and inferior officers of the United States government and. US attorneys, I believe are considered inferior officers, and I think in, in general we may dislike that term, but that nonetheless is the term that we use in the law.

And the appointments clause is not the only, and I'm using air quotes here, pathway to someone stepping into that US attorney role because a statute permits the appointment of interim or acting US attorneys and, and you mentioned that earlier. Why did Congress carve out a statutory path for the president slash his or her attorney general to appoint interim US attorneys?

Ordinarily a US attorney goes through. The presidential appointment process, they're nominated by the president. They are then vetted by the [00:11:00] Senate. And if, and if they are Senate confirms, they become presidentially appointed pursuant to the appointments clause.

If a Presidentially appointed US attorney steps down from the role, creating a vacancy, congress wanted there to be a path to fill that vacancy while we wait for the appointment of another. Presidentially appointed and Senate confirmed US attorney.

'Cause generally speaking, right Vanessa, we don't want the US attorney role open for very long and the Senate doesn't move that quickly.

So between the point in which the president names the appointment, sends it off to the Senate for vetting and then confirmation, that could take weeks, potentially months, depending on how quickly the Senate feels like moving. And so. The Congress said, well, perhaps we need a pathway to fill these vacancies.[00:12:00]

And in looking at the appointments clause in the Constitution, the excepting clause provides that Congress may by law vest the appointment of inferior officers like US attorneys. In the courts of law or in heads of department. So the heads of department here being, say, the Attorney General to the Department of Justice, currently, Pam Bondi, or in the district, in the courts of a particular district.

And how long can an interim US attorney serve if they've been appointed via the statutory process under 28 USC section? 5 46.

120 days. 

And then what happens after that? A hundred day, 120 day period has, has run.

 After that period is run the district court steps in to appoint an interim US attorney. Or acting US attorney

so the, the court appoints. And that is what [00:13:00] Congress prescribed. But that's not necessarily what happened here with Lindsay Halligan. Right. So Lindsay Halligan was appointed by the Attorney General Pam Bondi. And so former director Comey and Attorney General James argued that Halligan had no lawful authority because she was appointed outside of the 120 day period.

That's correct. One of the arguments that was before the court in this case was whether the 120 day period was a total period that allowed the appointments of the attorney general. Or whether they could be based on each person who is appointed to an interim role, and the court decided that it was a total 120 days from the start of the running of the period until the end.

 Really the attorney general is capped at that 120 day period. So anyone, , or everyone appointed by[00:14:00] the Attorney General to the United States to fill a vacancy in the US Attorney role. She, in this case, has 120 days to fill and no longer.

 that is what the court decided. Um, and with respect to the law under 4, 5, 4, 6,

is this normal? Uh, have we seen an issue like this arise before? Vanessa?

There's nothing normal about this. I, I think what we're seeing across the country is extraordinary. We are seeing issues in, in other districts, we. We've seen similar issues in New Jersey, for instance, with the US attorney appointments there and there are a number of other districts.

So the court agreed with the defendants it, granted the motions to dismiss and ultimately dismissed these indictments. Have we seen indictments dismissed because the prosecutor did not have the lawful authority to bring the cases in the first place. Again, is that normal or is that [00:15:00] something that is just, unprecedented in a, that we're seeing now during a Trump administration?

Much of what we're seeing now is unprecedented. This is the latest version of it and, I think we're gonna continue to see court decisions coming out on these issues that help us to. Define some of the boundaries that obviously need clarification,

These indictments were dismissed without prejudice.

What does that mean?

Dismissal without prejudice means there's an opportunity to refile and try again. Unless there's something that otherwise bars the second attempt. why didn't the courts dismiss the indictments with prejudice? The court talks about that and the decision wanting to put the parties back in the place where they were before the indictment occurred.

So it's, it's not necessarily the court's job to go above and beyond pressing the reset button,

The Department [00:16:00] of Justice has, and including the White House, actually the White House and the Department of Justice has said publicly that they intend to appeal the dismissals.

That's certainly one option. You mentioned earlier about they could, because it was dismissed without prejudice, they could go back and get another indictment. What are the department's options at this point? Appeal and seek a subsequent indictment.

They could certainly try, but in this case with Director Comey in particular, there's the statute of limitations concern. This court actually dropped a footnote to discuss that. It seems pretty clear that the statute of limitations has expired because what the court has said is if the appointment of the US attorney halligan in an acting capacity was invalid. Then all actions flowing from that defective appointment were also unlawful.

 the judge said in the [00:17:00] dismissal that effectively, if we're invalidating everything that Halligan has done, then. They've missed. They be in the Department of Justice, they've missed the statute of limitations. It has run. Comey's good. No more charges could be brought against him related to these facts. now certainly. The Trump Department of Justice with his heavy hand and with Pam Bondi kind of moving away from all the traditions and norms that we would normally expect from a independent Department of Justice.

It's certainly possible that they could say, drum up new charges against the former director and get another indictment, but on different allegations on potentially different crimes. And those wouldn't be barred because the statute of limitations for the initial indictment that has since been dismissed as of yesterday.

Well, those are out of the question now. So let's say hypothetically [00:18:00] that the Department of Justice obtains a new indictment for something different against the former director James Comey, and perhaps brings a, an indictment for Attorney General James as well. What could they argue at that point if they, if the Department of Justice cures the Halligan issue and maybe another prosecutor who is unquestionably lawfully appointed, what could these defendants potentially argue against the Department of Justice?

Well, sure, they could certainly argue that there was selective or vindictive prosecution. In fact, they've made those arguments in this case as well.

But the court, in this case, in, in the ones that were dismissed, the court didn't rule on those arguments. , The court just focused on the lawfulness of Halligan's appointments.

How do you think the selective or vindictive prosecution argument would fly? Whether [00:19:00] it's, a re indictment of the Attorney General James or the former director and say a new set of charges, a new set of allegations in a subsequent indictment against James Comey.

I think it would have to depend on the facts and, , circumstances of those subsequent charges, but certainly they can use the fact that these charges were initially brought to make an argument, it's the facts and circumstances justified it, that there was a selective and vindictive prosecution that they're now going back again to find some other charges bring against this person.

How does this all end?

That's a great question.

I think the goal is to try and get this to the Supreme Court, right? I don't know how quickly the Supreme Court will deal with it, and what they do with it, but I, I think they have an uphill battle.

Are you aware of Vanessa of any precedent that interprets the appointments clause [00:20:00] in relationship to 28 USC section 5 46 and this kind of interim pathway, right, where the Attorney General can appoint interim US attorneys? Is there any binding precedent at the Supreme Court level or at the appellate court level that you're aware of?

No, and that's why I believe this case is headed to the Supreme Court,

I think that's a fair prediction because what we have seen, what I have seen and observed is that this administration is not shy about appealing, especially via the emergency docket to the United States Supreme Court and.

I think so far it's safe to say that the Supreme Court has generally but not always sided with the Trump administration. This might be one that the Supreme Court breaks with the Trump administration, but we'll have to see.

I think that kind of concludes our conversation for this episode. And, [00:21:00] and Vanessa, I thank you for joining and answering some of these questions that are percolating around.

And that in my observation, many news articles don't get to this level of detail. So I think our listeners will appreciate it. , And Vanessa, I know you also agreed to do this kind of last minute because it was breaking news yesterday, so I appreciate you, thank you for joining us and, um, any parting thoughts for our listeners, Vanessa?

Thank you again for having me. I appreciate that your listeners are trying to keep up with this information, which certainly for law students and those of us who are practitioners, this, these are extraordinary times and um, extraordinarily interesting times, but also extraordinary scary times in some respects.

When you think about boundaries that have been anticipated for a long time now, subtly, um, disappearing and changing.

I mean, I say this frequently and, and I'll say this at the beginning of my classes next [00:22:00]semester when I teach constitutional law, and we'll, we'll, this will be the final thought for my listeners for this episode, which is. If there is one thing about a Trump administration is that from a constitutional law perspective, we get a lot of these lingering questions that we've never really had an answer to because we've never needed to answer them before we get these questions answered by the Supreme Court. Case in point. Any criminal immunity for current or past presidents?

Never thought we would have to answer that question, but nonetheless, we now have a precedent on it. So Vanessa, thank you so much. And to all of our listeners, thank you for joining us. Once again, you can catch discourse wherever you get your podcasts. And as a breaking news announcement here, we are now posting several episodes.

Not every episode though, on YouTube, if you wanna watch what goes down here. Discourse. So thank you all [00:23:00] for joining us, and we'll see you next time.

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