James Comey and Letitia James to challenge validity of Trump-era charges

James Comey, the former FBI director, and the New York attorney general, Letitia James, will ask a federal judge on Thursday to drop the criminal charges against them, arguing that Donald Trump’s hand-picked US attorney, who obtained the indictments against them, was unlawfully appointed.

The hearing at the federal courthouse in Alexandria, Virginia in front of judge Cameron Currie will mark the first time a judge will consider one of several efforts James and Comey have made to dismiss the indictments before trials.

The arguments center on whether Lindsey Halligan, Trump’s former personal attorney, was illegally installed as interim US attorney for the eastern district of Virginia.

If Halligan is deemed to be unlawfully appointed, then the charges against Comey and James could be invalidated since Halligan was the only federal prosecutor to present evidence to the grand juries in both matters.

Comey has pleaded not guilty to charges of making false statements and obstructing Congress, while James has pleaded not guilty to charges of bank fraud and lying to a financial institution.

Both were charged by Halligan’s office shortly after Trump openly called on US attorney general, Pam Bondi, to prosecute them. Bondi appointed Halligan at Trump’s request in September, after her predecessor, Erik Siebert, was forced out of the job after expressing concerns about a lack of evidence to support criminal charges against both Comey and James, two prominent critics of Trump who each oversaw investigations into him.

Attorneys for Comey and James will argue that Halligan’s appointment violates a federal law they said limits the appointment of an interim US attorney to one 120-day stint. Repeated interim appointments would bypass the Senate confirmation process and allow a prosecutor to serve indefinitely, they said.

Siebert had been previously appointed by Bondi for 120 days and was then appointed by the US district court for the eastern district of Virginia, since the Senate had not yet confirmed him in the role.

Meanwhile, it emerged last month that Halligan’s use of an encrypted messaging application with messages set to be automatically deleted after eight hours was potentially illegal, two watchdog groups had said.

Halligan used the Signal platform to communicate with Anna Bower, a journalist for Lawfare, about the criminal case against Comey and James. Bower published the full conversation and said Halligan had set messages to auto-delete after eight hours.

Thursday’s arguments are before Currie, a South Carolina-based federal judge appointed by former Democratic US president Bill Clinton, who was assigned to decide the issue given the role federal judges in Virginia played in Siebert’s appointment. A decision is not expected on Thursday.

The justice department plans to argue that Halligan’s appointment was lawful, saying that nothing in the law “explicitly or implicitly precludes the Attorney General from making additional appointments”.

In an effort to bolster its case, Bondi also belatedly, in late October, separately gave Halligan a second title of “special attorney” and said she is authorized to supervise both prosecutions.

Outside legal experts, however, have said the justice department’s unusual maneuvers to install Halligan could derail the cases.

Three federal judges in other cases have already separately ruled against the justice department on the issue, finding that Bondi unlawfully appointed US attorneys in New Jersey, Nevada and Los Angeles.

In addition, a justice department memo written in 1986 by Samuel Alito, who is now one of the US supreme court’s conservative justices, interprets the law the same way Comey and James do.

Reuters contributed reporting.