Lindsey Halligan Resolves To Embarrass Herself At SCOTUS In 2026
After failing to re-indict Comey and James, DOJ says it will appeal her disqualification.
On Friday, the Justice Department noticed its intent to appeal in US v. Comey and US v. James. The government will attempt to resuscitate the charges against Trump’s enemies — despite the many, obvious defects in both cases! — by arguing that it can, too let Lindsey Halligan LARP as US Attorney for the Eastern District of Virginia.
In some sense, the DOJ had no choice. The cases were dismissed on November 24 when a judge disqualified Halligan, a Florida insurance lawyer previously tasked with de-woke-ifying the Smithsonian. Since then, “her” office failed twice to re-indict James and got locked out of the Comey evidence entirely. With no appeal of the disqualification, judges in EDVA started to make irate noises about Halligan continuing to hold herself out as the US Attorney. Clearly the government had to make a move, or risk the district’s judges making it for them.
And so they decided to kick this dented can down the road to Richmond, giving a fifth court the opportunity to explain that no, the president cannot evade Senate confirmation for US Attorneys with a series of ONE WEIRD PROCEDURAL TRICKS.
The cosplay attorneys
Judge Cameron Currie ruled that 28 USC § 546 allows the president to make one, and only one, interim appointment as US Attorney in any given federal district, after which the position may only be filled by a Senate-confirmed nominee or a judicially-installed placeholder. Trump effectively used up that appointment on Halligan’s predecessor Erik Seibert, who was pushed out for refusing to indict Comey and James, and so Halligan’s appointment was always a nullity.
Courts in New Jersey, Nevada, and California, as well as the Third Circuit have uniformly rejected the government’s argument that § 546 allows for successive interim appointments. In those cases, though, the challenged prosecutions survived thanks to the presence of other, duly appointed Assistant US Attorneys. Here, Halligan secured the indictments on her own, and so the cases were dismissed when she was disqualified.
Judge Currie also rubbished the suggestion that Attorney General Pam Bondi could retroactively ratify Halligan’s actions, either by fiat or by calling her a “special attorney” and purporting to backdate the appointment. It’s not even clear that Halligan is legally serving as a special attorney, since the appointment order on Halloween, which purported to go into effect retroactively six weeks before, has been declared invalid. A rational attorney general would have raced to sign a second order, re-appointing Halligan prospectively. But nothing about this is rational so ¯\_(ツ)_/¯
Bondi vowed to appeal, but that’s not what happened … at least not immediately.
Instead, Halligan’s office tried multiple times to re-indict James. Assistant US Attorney Roger Keller, seconded to EDVA from the Eastern District of Missouri, got no-billed in both Norfolk and Alexandria as he tried to replicate Halligan’s success with the original grand jury. Like the Comey case (where one presentation yielded three different, signed indictments) Keller’s presentment in Alexandria seems to have been spectacularly botched. Somehow the no-bill got filed on the public docket, revealing that the DOJ had abandoned its theory that James collected “thousands” of dollars of rent on the disputed property. Keller has now returned to Missouri, a tacit admission that the effort to bring new charges against James hit a brick wall.
In the Comey case, his erstwhile lawyer Daniel Richman boxed the government out of the evidence by suing to get his hard drives back. Deprived of the material used in its case in chief, the DOJ had little hope of re-indicting the former FBI director.
And meanwhile judges in EDVA were starting to grumble about Halligan continuing to sign documents as “US Attorney,” even after her disqualification. Judge Michael Nachmanoff, who presided over the Comey case, refused to accept a filing which described her as US Attorney, noting that the Justice Department hadn’t appealed the disqualification and was thus bound by Judge Currie’s ruling. The government protests that it has an advisory opinion from the Office of Legal Counsel saying otherwise, although it declined to make that opinion available to the court.
After the Third Circuit ruled that her appointment was illegal, Habba finally tapped out, along with the illegally installed US Attorney for Delaware.
“That’s the proper position, in my view,” sniffed Judge Leonie Brinkema in EDVA, confronted with yet another document bearing Halligan’s signature.
And so, with the 30-day clock ticking to notice an appeal and no realistic path to re-indicting Trump’s nemeses, the DOJ opted to appeal Judge Currie’s rulings, if only to provide Halligan a fig leaf of legitimacy as she continues to squat in the office.
From the power to fire to the power to hire
Tapping out on the Comey and James cases would be admitting defeat, and so Trump doubled down, forwarding Halligan’s nomination to the Senate for confirmation. He knows this nomination is DOA thanks to the blue slip rule, since Virginia’s Democratic Senators Mark Warner and Tim Kaine are never going to give her their blessings.
Notably, the government has not yet petitioned the Supreme Court for certiorari in the Third Circuit’s Habba ruling. But this dispute tees up what may well be a major locus of conflict in the coming year.
At bottom this is a fight over the limits of Trump’s power to remake the executive branch. This past year, the Supreme Court allowed the president to fire literally anyone he liked. From career civil servants to non-partisan board members installed by Congress, no one was spared. The Court’s six conservative justices happily shredded laws and precedents that would have impeded Trump’s ability to fire every expert and non-partisan federal bureaucrat who might have impeded his plot to turn the executive branch into a partisan weapon.
But hollowing out the federal bureaucracy will only get Trump so far. He’ll need to replace those fired officials with MAGA warriors to take revenge on his enemies and enact the Project 2025 agenda. So far, the GOP-controlled Senate has confirmed virtually every partisan ghoul Trump put forward. But the Senate has its limits, as Judiciary Chair Chuck Grassley’s refusal to do away with blue slips demonstrates. And even with a supine Senate, Trump’s still facing a major backlog of nominees.
As a result, administration officials routinely hold multiple job titles at once. Deputy Attorney General Todd Blanche is also the Acting Librarian of Congress. But he’s a mere piker compared to Marco Rubio, who claims to be Acting National Security Advisor, Acting Administrator of USAID, and Acting National Archivist, along with his day job as Secretary of State. And while Trump may be happy to let USAID wither, there are plenty of positions he does care about filling.
The Senate’s confirmation math may also change in unpredictable ways in 2026, as the election approaches and the president’s unpopular policies continue to weigh down Republicans. But the dispute over blue state US Attorneys is a likely harbinger of the conflict to come. Just as he’s done with tariffs and the budget, Trump is simply ignoring the law and stealing Congress’s power when it comes to installing US Attorneys.
It’s always possible that the Supreme Court will decline to weigh in on this dispute. But given that the conservative justices spent the past year leaping in to ensure that Trump would never have to follow the law, it seems unlikely. And so the fight in 2026 will center on who gets to fill all those vacancies created when SCOTUS let him fire every board member, agency head, and US Attorney in the country.
Whatever happens, relief will certainly come too late for Lindsey Halligan. Section 546 allows for one 120-day appointment. Halligan was installed on September 22, and so, even if that appointment was legal, it would time out on January 20, 2026. After that, she may be a special attorney or a First Assistant US Attorney, but she won’t be the US Attorney for the Eastern District of Virginia.