General Discussion

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.”