A federal judge is poised to hear arguments this week in a joint motion by former FBI Director James Comey and New York Attorney General Letitia James seeking to disqualify interim U.S. Attorney Lindsey Halligan from overseeing their criminal prosecutions in the Eastern District of Virginia.
U.S. District Judge Cameron McGowan Currie, an appointee of former President Bill Clinton sitting by designation from South Carolina to avoid conflicts in the district, will preside over the hearing Thursday morning. Currie has already ordered full grand jury transcripts for review, signaling an unusual level of scrutiny of what Halligan’s role was before the indictments were handed up to her by grand jurors.
If the court takes the unusual step of removing Halligan, the question arises whether the indictments she obtained must also be dismissed or whether a replacement prosecutor would simply assume the case.
The challenge to Halligan’s role
In respective filings unsealed Monday, Comey and James argue that Halligan’s appointment was invalid and that her involvement taints the integrity of both prosecutions. They note that Halligan had never worked as a prosecutor before being appointed to lead the Eastern District of Virginia and that her predecessor, Erik Siebert, resigned under pressure after declining to pursue these same cases. Within days of being sworn in, Halligan secured a grand jury indictment against Comey, followed by an indictment against James weeks later.
Comey’s lawyers argue that those circumstances demonstrate improper political influence over the Justice Department. They say Halligan’s direct involvement in presenting the cases to the grand jury, rather than delegating to a line prosecutor, is a “structural defect” that makes the indictments void.
James’s attorneys have made similar claims, calling her appointment “unlawful” and alleging she was placed in the job to target political opponents.
If the judge finds Halligan’s appointment invalid, the Justice Department could be ordered to name a new prosecutor, but legal experts say dismissal of the indictments themselves would require a higher showing of prejudice or fundamental unfairness.
A unique procedural question
Former federal prosecutor Neama Rahmani told the Washington Examiner that Halligan’s personal role in obtaining the Comey indictment distinguishes her situation from other recent challenges to acting or interim U.S. attorneys.
“It’s unique in that she’s the one who actually went into the grand jury to get the indictment,” Rahmani said. “Typically, the U.S. attorney is not personally handling the case. They’re on the caption, but they’re not even in the room.”
Rahmani said that the difference could complicate the outcome if Currie disqualifies Halligan. “The question is, if she’s disqualified, is the grand jury indictment improper because she secured it herself? Would they have to reindict? Would there be a statute of limitations issue? That’s what makes this case unique,” he said.
Even so, Rahmani said disqualification alone would not automatically void the indictments. “You’d need to show more than just a technical violation,” he said. “Even if she were unlawfully appointed, the defense has to show prejudice — that it was fundamentally unfair. That’s a higher bar than simply removing her from the case.” He added that any order disqualifying or dismissing the prosecutions would likely trigger immediate appeals and could delay the current trial timelines.
Grand jury transcript dispute adds tension
The Comey case has also become entangled in a separate dispute over grand jury secrecy. Magistrate Judge William Fitzpatrick, who oversees pretrial proceedings, rebuked prosecutors last week for what he described as an “indict first, investigate later” approach and ordered the government to produce late-September grand jury transcripts and audio for review.
Prosecutors, including Halligan and Department of Justice trial attorneys Tyler Lemons and Gabriel Diaz, quickly appealed to U.S. District Judge Michael Nachmanoff, a Biden appointee, arguing that Fitzpatrick’s order exceeded his authority and that Comey had not shown sufficient grounds to overcome grand jury secrecy. Nachmanoff largely upheld Fitzpatrick’s discretion but sent the matter back for a more limited review of whether the defense has “particularized and factually based grounds” to justify disclosure.
At a brief status conference on Monday, the Justice Department agreed to provide all grand jury transcripts and audio for Fitzpatrick’s private review, but not for Comey’s defense team. Fitzpatrick said an in-camera review was necessary “to make an informed decision” about possible disclosure and will also consider an ex parte filing from Comey’s lawyers describing alleged breaches of attorney-client privilege during the grand jury process, according to Law and Crime.
Comey’s team argues those materials could show misconduct in Halligan’s presentation to the grand jury, the first of her career, while prosecutors maintain that no privileged evidence was used and that nothing in the grand jury process supports dismissal.
Halligan’s defense and DOJ backing
Prosecutors have sought to bolster Halligan’s standing, filing a certification on Nov. 3 that Attorney General Pam Bondi lawfully appointed Halligan as a special attorney on Sept. 22, the same day the Comey indictment was presented and ratified her grand jury actions to eliminate any procedural doubt.
Supporters, including Mike Davis, a close Trump ally and former chief judicial nominations counsel to Sen. Chuck Grassley (R-IA), have defended Halligan’s record.
In a recent Federalist op-ed, Davis argued Halligan “proved her critics wrong” by filing evidence that he said “overwhelmingly demonstrates Comey’s guilt,” including handwritten notes, emails sent under Comey’s alias Reinhold Niebuhr, and communications with Columbia Law School professor Daniel Richman that prosecutors allege show coordination with the media.
Watchdog complaint adds scrutiny
The Campaign for Accountability, a left-leaning watchdog group, filed complaints Tuesday with the Florida and Virginia state bars, urging Halligan’s disbarment.
The group alleges she violated ethics rules by acting at Trump’s direction and prosecuting cases that career officials deemed unsupportable.
“The evidence appears to demonstrate that, absent President Trump’s intervention, neither Mr. Comey nor Ms. James would have been indicted,” the complaint states.
How Comey and James are defending the charges
Comey faces charges of making false statements and obstructing Congress for his 2020 Senate testimony about the FBI’s handling of Hillary Clinton’s private email investigation and related leaks to the media. He has pleaded not guilty and claims the prosecution stems from political motives rather than independent law enforcement.
James is charged with bank fraud for allegedly misrepresenting her intent to personally occupy a Virginia home purchased in 2020 with a $109,600 mortgage and allegedly acquiring nearly $20,000 in ill-gotten gains due to her alleged misrepresentation of her intent. She has pleaded not guilty and argues that the case represents an unlawful abuse of power.
Both defendants have so far focused their defenses on challenging Halligan’s appointment and claiming selective or vindictive prosecution, rather than disputing the substance of the allegations themselves.
What’s next
Currie has required the government to submit the full grand jury transcript ahead of Thursday’s hearing, indicating close attention to Halligan’s role in securing the indictments. Fitzpatrick, meanwhile, is completing his in-camera review of the grand jury materials and an ex parte defense submission regarding alleged breaches of privilege.
FLORIDA AND VIRGINIA PRESSURED TO INVESTIGATE LINDSEY HALLIGAN OVER PROSECUTING COMEY AND JAMES
The federal courthouse in Alexandria was closed Tuesday for the Veterans Day holiday, but a ruling from Fitzpatrick on whether any grand jury materials can be shared with Comey’s defense team could come as early as Wednesday.
Trials for both Comey and James remain set for January in the Eastern District of Virginia’s “rocket docket,” assuming no delays or appeals force the dates to be pushed back.
