FBI Director James Comey testifying before the Senate Intelligence Committee on June 8, 2017 (Image: Shutterstock)
The Justice Department is taking another crack at indicting former FBI Director James Comey and New York Attorney General Letitia James.
According to Bloomberg Law, the move will be an appeal of a prior decision that District Attorney Lindsey Halligan was not lawfully appointed to serve as DA because she wasn't confirmed by Congress. The Justice Department is seeking to restore the criminal cases against James and Comey.
According to the DOJ, even if Halligan’s appointment wasn't legal, it shouldn't erase the indictments. However, Comey and James argue that the cases were invalid from the start because an unlawfully appointed prosecutor brought them before grand juries.
On Tuesday, a three-judge panel at the Fourth Circuit Court of Appeals will hear arguments on the matter again and decide whether a remedy is needed and what it would look like.
A panel of judges in the Eastern District unanimously approved her predecessor, Erik Siebert, to take over the office in the interim. He'd initially resigned ahead of Halligan indicring Comey and James.
"Lawyers arguing on behalf of the Justice Department, Comey, and James won’t know who they’re appearing before until the morning of argument," the report said. "The Fourth Circuit is one of the only federal appellate courts that doesn’t announce the three-judge panel in advance."
It explained it's a "crapshoot" as to who they could appear before. While it was once a conservative court, eight of the past 15 new judges were appointed by Democrats.
Lawyers should prepare for “questions about the plain language, the origins of the statute, the problem the statute was trying to solve, and the ramifications of ruling one way or another,” explained former Virginia Solicitor General Michelle Kallen.
“If I were prepping for oral argument, I’d be prepared to answer more questions about the exact circumstances that led Congress to give a role to the courts in connection with the appointment of US attorneys,” Kallen said.
Last November, the Eastern District of Virginia was in complete disarray after Halligan was told her appointment to the post was not lawful.
After the ruling in the Comey and James cases last year, two magistrate judges and a district court judge in Alexandria, Virginia, went so far as to rebuke prosecutors in open court about Halligan’s name on all recent criminal cases, explaining that it should not be there. The documents included a new criminal case filing, guilty plea papers and several indictments.
Magistrate Judge William Fitzpatrick told prosecutors it was “not acceptable” for charging papers to be filed under Halligan’s name, and both he and Judge Michael Nachmanoff said that, after the ruling, Halligan’s name should not appear on any cases.