Federal Judge Invalidates Appointment of U.S. Attorney, Throwing High-Profile Indictments Into Uncertainty

WASHINGTON — A federal judge’s ruling that Lindseay Halligan was unlawfully appointed as the United States Attorney for the Eastern District of Virginia has upended two politically sensitive prosecutions and raised questions about the limits of presidential power in filling federal law enforcement vacancies.

Judge Sherri A. Lydon Curry, normally based in South Carolina but sitting by designation, issued the decision shortly before the Thanksgiving holiday. Her 41-page opinion concluded that Halligan, a former insurance lawyer with no prosecutorial background and a longtime personal attorney to former President Donald J. Trump, did not meet statutory requirements to serve as U.S. Attorney at the time she oversaw grand jury proceedings and approved indictments in two separate cases.

Those indictments — one involving former FBI Director James B. Comey and the other New York Attorney General Letitia James — have now been dismissed without prejudice, a procedural outcome that preserves the theoretical possibility of refiling but may collide with expired statutes of limitation.

At the center of Judge Curry’s ruling is 18 U.S.C. § 546, a statute governing interim appointments of U.S. Attorneys. Under the law, the president may appoint an interim U.S. Attorney for 120 days. When that period expires, authority shifts to the district court judges of that federal district, who may jointly select a replacement until a presidential nominee is confirmed by the Senate.

The court found that the Trump administration repeatedly used the 120-day provision to cycle interim appointments, effectively bypassing the statutory limit. Once the 120-day period for Trump’s nominee, Eric Seibert, expired, the judges of the Eastern District of Virginia selected him to continue in the role — the procedure required by law. When Seibert and career prosecutors declined to pursue the Comey and James cases citing insufficient evidence, he was removed or resigned, and Halligan was installed in his place.

Judge Curry wrote that Halligan’s appointment “lacked legal authority,” rendering her actions—including presenting cases to the grand jury—invalid. Legal scholars have likened her position to that of a private citizen attempting to initiate federal charges: “She simply had no power to act,” the judge wrote.

The ruling has created both procedural and political complications. Without valid indictments, trial judges overseeing the two cases cannot rule on pending defense motions alleging selective and vindictive prosecution, abuse of the grand jury process, and constitutional violations. Some legal analysts argue those issues may be revived if the cases are refiled; others contend the absence of a charging instrument may deprive the court of jurisdiction.

Judge Curry’s decision also drew attention to separation-of-powers questions about allowing federal judges to appoint executive-branch prosecutors. The practice, however, dates back to the Civil War and has been upheld repeatedly.

What remains unclear is whether the district judges of the Eastern District of Virginia will convene to select a new U.S. Attorney, and whether any prosecutor—judicially appointed or otherwise—would pursue the cases again. The Comey matter appears especially vulnerable, as Judge Curry noted in a footnote that an invalid indictment likely does not toll the statute of limitations, which may have already expired.

Appeals are expected, though the timeline is uncertain. For now, the ruling represents a significant rebuke of an attempt to stretch interim appointment authority, and it initiates a complicated legal process that may ultimately end the prosecutions entirely.