Judge Cannon comes back to haunt Trump as DOJ struggles to revive charges

Appeals judges appeared leery of allowing President Donald Trump’s Department of Justice to revive its dead prosecution of Attorney General Letitia James on Tuesday. James’ prosecution was dismissed under the argument that the top prosecutor pressing the case did not have a right to be leading the indictment.

But DOJ attorneys say Senior U.S. District Judge Cameron Currie "administered […] strong medicine" as a consequence of Lindsey Halligan's "unlawful" appointment, insisting a mere "error in the title" should not have led to dismissal of Letitia James' and James Comey's indictments in Virginia, reports Law and Crime.

Rather, Attorney General Henry Whitaker argued before the 4th U.S. Circuit Court of Appeals that the three-judge panel should "respect" grand juries' decisions and revive fraud and false statement indictments against Trump's perceived enemies New York's attorney general James and the former FBI director Comey. Whitaker claimed Currie erroneously concluded in November that ex-U.S. Attorney General Pam Bondi "unlawfully appointed" Trump's former personal attorney Halligan as interim U.S. attorney in the Eastern District of Virginia.

“But attorneys for Comey and James countered that Halligan was little more than a private citizen when she was the only prosecutor to sign the indictments and present to the grand jury. Notably, that is how U.S. District Judge Aileen Cannon described ex-special counsel Jack Smith when she dismissed his Mar-a-Lago case against Trump on Appointments Clause grounds,” reported Law and Crime.

"Mr. Smith is a private citizen exercising the full power of a United States Attorney, and with very little oversight or supervision," Cannon said, tossing out the president's willful retention of classified documents and conspiracy case as a remedy.

Judges were quick to use that argument in the dismissal of James’ indictment.

"How would you then distinguish United States v. Trump when Judge Cannon found that Mr. Smith, whatever his name was, wasn't lawfully appointed? What happens in this case? How would you distinguish it if Ms. Halligan's not lawfully appointed?" asked Senior U.S. Circuit Judge Henry F. Floyd, a Barack Obama appointee. “… The point is that she says it wasn't a lawful appointment.”

Whitaker found himself flailing as he tried to discern between the two identical dismissals.

“She did, Your Honor, but Judge Cannon there was faced with the appointment of a special counsel to which different appointment authorities apply. For example, in this case, we could have appointed Ms. Halligan to conduct these prosecutions under 28 U.S.C. 542 and 543, which were appointment authorities that the United States did not invoke in defending the Jack Smith appointment," Whitaker said.

"To put it bluntly, would have, could have, should have. That didn't happen," Chief U.S. Circuit Judge Albert Diaz, also an Obama appointee, said, jumping in.