Nearly a year after a federal judge ruled that Lindsey Halligan was never lawfully the U.S. attorney for the Eastern District of Virginia, and threw out the political prosecutions of former FBI Director James Comey and New York Attorney General Letitia James along with her, the Trump administration went to the Fourth Circuit on Tuesday to argue that actually, she was. And the case for reviving those prosecutions depends on the court agreeing.
It did not go smoothly.
A quick refresher, because the Halligan era packed a lot into a few months. Halligan, a former Trump personal lawyer and insurance lawyer with zero prosecutorial experience, was installed as interim U.S. attorney in September 2025 after her predecessor was pushed out, and within days had secured indictments against Comey and James. Then came her day in court, which ended with Senior U.S. District Judge Cameron McGowan Currie finding that the 120-day clock for an attorney general-appointed interim U.S. attorney had already run out on Halligan’s predecessor, Erik Siebert, so Pam Bondi had no power to appoint anyone else. That meant Halligan managed to lose two cases at once. Currie warned that the government’s theory would let it “send any private citizen off the street — attorney or not — into the grand jury room to secure an indictment.” The dismissals were without prejudice, but the DOJ’s attempts to start over went nowhere: grand juries declined to re-indict James, and Currie found the statute of limitations had already run on Comey (the DOJ disagrees). Halligan herself kept acting like the U.S. attorney for months after she was disqualified, until Eastern District judges forced the issue and a brutal, humiliating benchslap put an end to the Lindsey Halligan experiment.
All of which brings us to yesterday’s Fourth Circuit hearing, where DOJ lawyer Henry Whitaker “at times faced distinct skepticism,” per POLITICO. Chief Judge Albert Diaz, an Obama appointee, spelled out where the government’s reading of the statute leads:
I understand that you’re representing that this administration has no incentive to engage in a cascade or carousel of interim appointees. But under your reading of the statute, that is the logical conclusion, that an executive could … just continue with a succession of appointments, thereby essentially cutting off both the court, the district court, and the Senate’s advice and consent power. Isn’t that true?
Whitaker tried the no-incentive line again. Diaz cut him off, “You’re saying you have no incentive, but under your reading of the statute, a nefarious, ne’er-do-well executive could do exactly that, right?” And Whitaker was forced to agree.
That’s a big concession. Statutory interpretation doesn’t care about promises of good behavior, least of all from an administration whose interim U.S. attorney saga has included a judge demanding that a fake U.S. attorney explain why she was still pretending to be U.S. attorney. “Trust us” is a weak argument from these people on everything but on this particular subject especially.
Judge Henry Floyd, another Obama appointee, brought up the government’s most awkward precedent. “How would you then distinguish United States v. Trump when Judge Cannon found that Mr. Smith, whatever his name was, wasn’t lawfully appointed?” he asked. Whitaker’s answer was that different appointment authorities apply, and that the DOJ could have appointed Halligan to bring these prosecutions under a different statute. Diaz wasn’t buying it: “To put it bluntly, would have, could have, should have. That didn’t happen.” The same appointments argument that ended the case against the president is now the problem for the cases his DOJ wants back.
The Trump appointee on the panel, Judge Julius Richardson, was more helpful to Whitaker, suggesting that “if an executive were to abuse this power, Congress has the full authority to revise the statute to read in a way that reaches a better policy result.”
Which is technically true, and also cold comfort. Richardson’s “Congress can fix it” is the same theory other circuit courts have already thrown out. The Third Circuit rejected the administration’s attempt to keep Alina Habba in charge in New Jersey through an elaborate game of musical chairs with interim appointments, and even Trump’s own judges agree Sigal Chattah isn’t a real U.S. attorney. The DOJ is asking the Fourth Circuit to be the first appellate court to buy the argument, in front of a panel whose chief judge got the government’s own lawyer to admit the theory would let a “nefarious, ne’er-do-well executive” appoint interim prosecutors forever.
Well… things don’t look great for Lindsey Halligan’s comeback tour.
Earlier: Lindsey Halligan Manages To Lose Two Cases At Once, Which Is Honestly Impressive
Brutal, Humiliating Benchslap Puts An End To Lindsey Halligan Experiment
DOJ Adds Another No Bill To Its Trophy Case
Lindsey Halligan Says Her ‘I’m An Illegal Appointment’ T-Shirt Has People Asking A Lot Of Questions Already Answered By Her Shirt
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
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