Trump tries to revive indictments against political foes at Fourth Circuit

The case presents a fourth opportunity for a federal appellate court to weigh Trump's method of appointing U.S. attorneys without Senate approval.RICHMOND, Va. (CN) — A Fourth Circuit panel Tuesday reviewed the dismissal of federal indictments against two prominent critics of President Donald Trump — former FBI Director James Comey and New York Attorney General Letitia James — due to the improper appointment of Lindsey Halligan as a federal prosecutor.The typical process for appointing U.S. attorneys begins with a presidential nomination, followed by the Senate’s advice and consent. When Senate confirmation isn’t possible, federal law allows the attorney general to install an interim U.S. attorney for 120 days. The dispute centers on what happens after the 120 days.According to Senior U.S. District Judge Cameron McGowan Currie, a Bill Clinton appointee, federal district courts assume the power to fill the vacancies. The government, meanwhile, argues the attorney general retains the authority to select a limitless number of people for 120-day temporary terms, circumventing the need for congressional or court approval.Without Senate approval, Halligan replaced Erik Siebert as interim U.S. attorney for the Eastern District of Virginia after Siebert refused to bring criminal charges against James, who successfully sued the president for fraud. Halligan, who previously served as Trump’s special assistant, worked swiftly to obtain indictments against Comey and James last fall.Comey and James argue the process followed by previous presidents — including Trump during his first term — prevents the president from appointing allies rather than those committed to the rule of law.Currie agreed, dismissing the indictments in November 2025. The judge determined the authority to make interim appointments shifts to the relevant federal court if the position remains vacant after 120 days, “where it remains until the president’s nominee is confirmed by the Senate.”At an appellate hearing Tuesday, Senior U.S. Circuit Judge Henry Floyd, a Barack Obama appointee, asked what the point of the 120-day limit is if the attorney general could hypothetically continue appointing the same interim attorney.Government attorney Henry Whitaker attempted to downplay the potential for abuse with unlimited vacancy appointments, telling the judges the Trump administration welcomes collaboration with district courts and understands continually appointing attorneys to temporary terms is impractical.“He made it out to be as if the president and the attorney general were working with these district courts, and I just don’t think that’s the case,” Carl Tobias, a University of Richmond law professor, said in a phone interview. “The government lawyer was painting a picture that wasn’t really true in terms of what the White House and what DOJ were doing.”Chief U.S. Circuit Judge Albert Diaz pressed Whitaker on his assertion that the feds didn’t aim to use their interpretation to skirt the Senate approval process and that they’re incentivized to follow the typical procedures.“Having an incentive is different from complying with the statute,” the Obama appointee said. “You’re suggesting that an executive would and should act in good faith to work the district court; one may wonder whether that happened here. You may have a view of that, but that’s different from your reading of the statute, which relies on incentives as opposed to the plain language of the statute.”Attorney Abbe Lowell, representing James, also quibbled with the assertion that the government is incentivized not to abuse the process.“I think what’s wrong about the government’s position is that it ignores what Judge Currie pointed out, which is that this stands against what is a 250-year imperative,” Lowell said. “The government’s position over and over again is going to be to find loopholes and circumvention around that imperative.”Attorney General Pam Bondi later ratified the indictments to cure any defects. Floyd wondered where to draw the line on the feds’ ability to ratify agents’ invalid actions, asking whether the attorney general could later ratify the actions of any person or only those of U.S. attorneys.“If she was lawfully appointed, certainly the indictment would stand,” Floyd said. “If she wasn’t, what’s the difference between the man on the street and her seeking an indictment under the appointments clause?"Lowell concurred.“There could be no more structural error in this case than putting a private person in a grand jury with the full power of the government to indict somebody,” Lowell said. “How could it possibly be that something as important as a grand jury indictment can be ratified when it was brought by somebody who had no business to be there at all?”Whitaker disagreed.“If there was an error here, it was simply an error in the title Ms. Halligan was given, and I would respectfully submit that there is no basis for thinking that the grand juries attached any particular significance to the title,” Whitaker said.U.S. Circuit Judge Julius Richardson, a Trump appointee who seemed more skeptical of James and Comey’s argument, completed the panel.The Second Circuit became the latest of three circuit courts to rule against the government’s appointment tactics last month.Halligan charged Comey with lying during a Senate committee hearing and obstruction of a congressional proceeding just five days before the five-year limitations period set to expire on Sept. 25, 2025. In a separate indictment secured by Halligan, James was charged with bank fraud on Oct. 9, 2025, related to the purchase of a home in Virginia.Attorneys representing James, Comey and the government did not respond to requests for comment.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads