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The DOJ "camp followers" are going to learn what it means to appear before a real federal judge:

By Jeremy Roebuck and Salvador Rizzo
Washington Post

A federal judge appeared skeptical Thursday that Lindsey Halligan had been lawfully appointed to oversee the prosecutions of former FBI director James B. Comey and New York Attorney General Letitia James but seemed less certain that disqualifying her should end those cases altogether.

U.S. District Judge Cameron McGowan Currie did not immediately issue a ruling on requests from Comey and James to have their cases dismissed after a hearing in federal court in Alexandria.

A decision, which Currie said she would issue within the next two weeks, could upend the controversial prosecutions of two of President Donald Trump’s perceived political foes. It could also throw into question the administration’s broader efforts to install loyalists in key prosecutorial positions across the country while bypassing Senate confirmation.

Attorneys for Comey and James have asked the court to disqualify Halligan, a former White House aide whom Trump installed in September as interim U.S. attorney for the Eastern District of Virginia after publicly demanding that the Justice Department move swiftly to prosecute his enemies. Her predecessor, Erik S. Siebert, was forced out over his decision not to move forward with cases against Comey and James.

Defense lawyers argue Halligan’s appointment violated federal laws governing how long the Justice Department can appoint temporary candidates to head U.S. attorney’s offices.

“The only thing that matters was did Ms. Halligan have the proper authority when she stood up before the grand jury” to secure the indictments against Comey and James, Ephraim McDowell, an attorney for Comey, argued Thursday. “She did not.”

Justice Department attorneys pushed back, dismissing any missteps the administration may have made as “at best a paperwork error.” They maintained Halligan has been granted full authority to prosecute Comey and James and insisted there are no grounds to justify dismissing the charges.

Despite having no previous prosecutorial experience, Halligan secured an indictment against Comey on charges he lied to Congress within days of assuming her post. She followed that up weeks later with the mortgage fraud case against James tied to her purchase of a Norfolk home.

In both cases, Halligan pursued the charges over objections from career prosecutors in her office who had concluded there was insufficient evidence to support them. She presented the cases to the grand jury herself.

Comey and James have denied any wrongdoing and are challenging their indictments on multiple fronts. In addition to their efforts to disqualify Halligan, they’ve argued the cases against them are motivated solely by Trump’s desire for revenge.

Their challenge to Halligan’s legitimacy bears similarities to recent efforts to disqualify Trump-appointed prosecutors in other parts of the country.

In recent weeks, federal judges have ruled that the president’s picks to lead U.S. attorney’s offices in New Jersey, Nevada and Los Angeles have been serving unlawfully in their roles but have declined to dismiss cases that were brought under their supervision, noting that validly appointed career prosecutors had also assisted in those matters.

Comey and James say their situation is different because Halligan was the only prosecutor to appear before the grand juries that indicted them.

“Every career prosecutor involved in the process realized this was not a good case,” said Abbe Lowell, an attorney for James. “Then they left or were forced out.”

Justice Department lawyers contend that even if Currie were to invalidate Halligan’s appointment, her grand jury presentations have since been reviewed and ratified by Attorney General Pam Bondi, whose authority is not in doubt.

But that argument drew sharp questioning Thursday from Currie, an appointee of President Bill Clinton who was specially assigned to decide the question of Halligan’s legitimacy.

The judge noted that after she’d requested the full transcript of the grand jury proceedings in the Comey case, the Justice Department provided her a copy missing all of Halligan’s remarks to the panel. Department lawyers later said that transcript was the only copy they had available at the time.

“It became obvious to me that the attorney general could not have reviewed those portions of the grand jury presentation by Ms. Halligan,” Currie said. “How does the attorney general ratify and say she reviewed the grand jury transcripts, when they did not exist in the Justice Department records at the time?”

Currie also pressed lawyers for the government to square their defense of Halligan’s appointment with arguments that Trump’s personal attorneys made last year while seeking disqualification of special counsel Jack Smith and the dismissal of charges he brought against Trump for allegedly mishandling classified documents.

In that case, U.S. District Judge Aileen M. Cannon ruled that Smith had been unlawfully appointed in part because the Senate had not confirmed him to his role, and she threw out the charges against Trump.

Justice Department lawyer Henry C. Whitaker maintained Thursday that Cannon’s decisions involved separate laws than those at issue with Halligan. He added that he believed Cannon’s decision went too far in questioning the attorney general’s power to make appointments and, taken to its logical conclusion, could undermine the authority of most of the lawyers working at the Justice Department.

“We do disagree with that,” he said.

Typically, U.S. attorneys are nominated by the president and confirmed or rejected in a Senate vote. But a federal statute governing U.S. attorney vacancies empowers the attorney general to make “interim” appointments for a period of 120 days. After that, if there is still no Senate-confirmed nominee, the judges in each federal court district may appoint their own candidate.

Lawyers for Comey and James argue that Halligan’s appointment was unlawful because the Trump administration had already used the interim appointment law to install Siebert. He had been named to the position in January, served a full 120-day term and was later reappointed to his position by judges before Trump forced him out of the post.

The law does not allow the Justice Department to make successive 120-day appointments, McDowell said Thursday, precisely “to make sure that U.S. attorneys are not unqualified allies of the president.”

The Justice Department has advanced its own interpretation, insisting the attorney general is empowered to name as many interim appointees as necessary until the Senate confirms the president’s nominee.

“There is nothing in the language of the statute that says the attorney general is limited to only one appointment,” Whitaker said.

Yet a federal judge rejected that reading of the law in August in deciding a challenge to the appointment of Alina Habba, Trump’s interim U.S. attorney in New Jersey. U.S. District Judge Matthew Brann noted in his decision that the Justice Department’s position would allow the president to appoint temporary picks indefinitely “without ever seeking the Senate’s advice or consent” for a permanent appointee to the position.

Currie noted Thursday she’d recently reviewed arguments made before the U.S. Court of Appeals for the 3rd Circuit in a still-undecided appeal in that case.