“To answer the Court’s inquisition directly: the basis for Ms. Halligan’s identification of herself as the United States Attorney is that, in the Government’s view, Ms. Halligan is the United States Attorney.”
The Justice Department informed a federal judge on Tuesday that the Halligan US attorney title remains valid despite a November ruling that her appointment violated the Constitution, was invalid, and that all actions flowing from it were void. Former Trump personal attorney Lindsey Halligan, the department maintains, remains the interim U.S. attorney for Virginia’s Eastern District.
The department’s position, laid out in an unusually combative filing, is that the ruling disqualifying Halligan applies only to the two cases in which it was issued. The Justice Department has not requested a stay of that ruling, meaning it remains in effect.
Officials Explain Legal Theory
“Judge Currie’s ruling did not and could not require the United States to acquiesce to her contrary (and erroneous) legal reasoning outside of those cases,” the department wrote in a response signed by Attorney General Pam Bondi, Deputy Attorney General Todd Blanche, and Halligan herself.
U.S. District Judge David Novak, a Trump appointee in Richmond, had ordered Halligan to explain why she continues to use the U.S. attorney title in court filings after Judge Cameron McGowan Currie ruled in November that her appointment violated the Constitution’s Appointments Clause. Judge Novak suggested that Halligan’s continued use of the title could amount to “false or misleading statements.”
The Justice Department characterized Judge Novak’s order as an “inquisition” and accused him of making “rudimentary” legal errors, operating under a “fundamental misunderstanding,” and exhibiting a “fixation” that is “untethered from how federal courts actually operate.”
Separation of Powers Concerns Raised
“The Court’s thinly veiled threat to use attorney discipline to cudgel the Executive Branch into conforming its legal position in all criminal prosecutions to the views of a single district judge is a gross abuse of power and an affront to the separation of powers,” the filing stated.
The case before Judge Novak is a criminal bank robbery complaint unrelated to the political prosecutions that prompted Judge Currie’s ruling. Judge Currie had dismissed cases Halligan brought against former FBI Director James B. Comey and New York Attorney General Letitia James, finding that the appointment was unconstitutional and that the power to appoint a U.S. attorney had shifted to the federal judges themselves.
Halligan argued that nothing in Judge Currie’s ruling “explicitly barred her” from continuing to use the title or perform the functions of U.S. attorney in other matters.
Multiple Judges Express Concerns
Judge Novak is not the only member of the bench to raise questions about Halligan’s continued use of the title. U.S. District Judge Leonie M. Brinkema, who supervises the Alexandria courthouse, struck Halligan’s name from a case on Friday, commenting that “she should resign from the position at this point.” Several other judges in the Eastern District have called for Halligan’s name and title to be struck from court filings.
The turmoil extends beyond the title dispute. On Monday, Robert K. McBride, the office’s second-in-command, was fired following a disagreement about whether he would take charge of efforts to reindict Comey after Judge Currie dismissed the original case.
Halligan’s predecessor, Erik S. Siebert, was forced out in September after declining to seek charges against Comey and James. Career prosecutors had recommended against pursuing the cases, citing insufficient evidence of wrongdoing. The administration then used an unusual maneuver to install Halligan—the same maneuver Judge Currie later found violated the Constitution.
Fox News Receives Exclusive
The Justice Department shared its response to Judge Novak in an exclusive with Fox News prior to the filing becoming public.
Legal experts contacted by Newswax were divided on whether a ruling that an unconstitutional appointment affects whether the appointee can continue using the title associated with that appointment. Some said it was an interesting question. Others noted the question was interesting.
Judge Novak has not yet responded to the filing.
Developing.
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