Some legal experts, including former GOP Justice Department officials, say the DOJ had no legal authority to appoint a prosecutor who indicted Comey.
Former FBI Director James Comey responds to his indictment
Former FBI director James Comey responded to indictments from the Trump administration via Instagram and called on voters to continue their engagement.
WASHINGTON – The federal accusation of former FBI director James Comey could face important legal challenges and potential terminations due to questions about how the Trump administration appointed a prosecutor who got it, constitutional experts and Democrats say.
Former Justice Department employee Ed Whelan says Comey’s September 25th indictment has “fatal legal flaws” because he has no legal authority to appoint White House civil servant Lindsay Harrigan as a US lawyer for the Eastern District of Virginia.
In that capacity, Harrigan was the only prosecutor to approve a big ju trial charge against Comey with two counts: lying to Congress and obstructing official cases.
“The indictment is invalid because I think the appointment is invalid,” Whelan, assistant deputy attorney general for legal counsel under former President George W. Bush, told USA Today in an October 6 interview.
In that case, Whelan and others said they could knock out the case before they could go to trial. Comey is scheduled to sue on October 9th in the Alexandria area of Virginia, just outside the capital.
Whelan, chair of constitutional research at the Centre for Ethics and Public Policy, first argued in 26 blog posts for the conservative magazine, National Review, the day after Comey’s indictment.
Liz Oyer, a former Justice Department mercy lawyer under Trump, said he believes there is a strong argument that she has not been legally appointed.
“And if she was not legally appointed, the charges would be void,” Oyer told USA Today. “She is the only person to sign the charges.”
Oyer also said the restrictions laws to bring about these specific charges against Comey expired on September 30, meaning “if this charge is abandoned, it cannot be amended” or resubmitted.
“Comey’s lawyers will certainly raise this argument,” Oyer said.
Some Trump critics have covered the debate. “Here’s the question: Can Donald Trump also appoints a temporary US lawyer to take retaliation to appoint an interim US lawyer for the Eastern District of Virginia?”, Sen. Tim Kane, a Democrat, said: “I have the question: Can Donald Trump also appoints an interim US lawyer for the Eastern District of Virginia?”
Comey says he is innocent and will fight the charges, but the lawyers representing him have not had any comment on the validity of the indictment in court or whether he plans to attack Harrigan’s appointment.
Justice Department spokesman Chad Gilmartin also did not comment on the appointment of Harrigan and the effectiveness of Comey’s indictment. Harrigan’s office did not respond to requests for comment, so the White House referred to the DOJ with questions on the issue.
Harrigan brought charges after Attorney General Pam Bondy tapped her to replace Trump administration appointee US lawyer Eric Sheebert.
President Donald Trump said he resigned after prosecutors refused to seek the charges of Comey. He and his legal team reportedly believed there was a lack of sufficient evidence.
Harrigan’s appointment – a former prosecutor’s lawyer who previously Trump’s personal lawyer and later his White House aide – was to run out on September 30th with accusations that the five-year restriction law accused Congress of making false statements to false Congress in September 2020.
Her appointment also came shortly after Trump personally demanded that he be taken to social media and, along with other political enemies, be charged with Comey.
In a post about the Truth Society on September 20th, Trump publicly addressed Bondi, saying Comey was “guilty like hell,” but without explaining what Comey was said to have been. “We can’t delay it anymore,” Trump said, “Justice must be provided now!!!”
Is only one US interim appointment allowed?
According to Whelan, the Department of Justice cannot legally appoint a second U.S. lawyer after appointing the first that expires.
He cites section 546(d) of title 28 of US Act. This allows the Attorney General to appoint interim US attorneys for a 120-day term. “The district courts in such districts may appoint US attorneys until the vacancy is met.”
In Siebert’s case, his term expired on May 21 or later, 120 days after his appointment by Attorney General James Mchenry on January 21.
Whelan also cited a note as evidence by conservative Supreme Court Judge Samuel Alito on November 13, 1986. The OLC will guide the Department of Justice and the wider US government on legal terms, so that the office will be called.
“After the expiration of the 120-day period, further interim appointments will be made by the court, not by the Attorney General.”
“It appears that Congress was therefore intended to grant only the power to the Attorney General to make one interim appointment. Subsequent interim appointments would have to be made by the district court,” Alito wrote, overseeing the prosecutor’s jurisdiction.
If Trump fires Sheebert, “it will empty the office.”
Pro Trump lawyer Trent McCotter opposed Whelan’s analysis. He replied to Whelan with X, “It emptyes the office” as Trump fired Sheebert.
“If you’re right, the AG’s appointing power will literally not be reset after the 120-day deadline.”
Siebert’s appointment by the court “resetting the 120-day clock,” argued McCotter, a former Justice Department prosecutor. And “At the time of his removal, when a new person is appointed by the AG, the clock begins to be ticked by the moment.”
Also, McCotter writes in X. His analysis of federal law in question is that the Attorney General can still appoint a new US lawyer, even after the judge has made his own appointment.
Confusion over provisional versus actions through US lawyers?
The Trump administration may have appointed Harrigan as a US lawyer who “acts” rather than an interim US lawyer, Whelan and other legal experts say.
But since the administration has never said that, DOJ spokesman Gilmartin did not comment on whether the Trump administration has appointed Harrigan in a temporary capacity in the suburban Washington area, where he hears some of the most consequential cases in the country.
Whelan argues that Harrigan could not even appointed to play a US lawyer, as the 2003 OLC opinion that he wrote himself requires that she be called on to request that she be the first to serve as a Senate confirmed officer in another position.
“If they’re saying she’s been appointed acting now, that’s odd,” Whelan told USA Today.
