An Ignominious End to a Lawless Prosecution

The collapse of the malicious, incompetent case against James Comey.

(Photo by Mark Wilson/Getty Images)

MONDAY’S DISMISSAL of the indictments of former FBI Director James Comey and New York Attorney General Letitia James—two critics of President Donald Trump whom he targeted in his campaign of political retribution—is a victory, or at least a mini-victory, for the rule of law. But it’s likely to prove short-lived.

U.S. District Judge Cameron McGowan Currie’s reasons for tossing out the indictments were, on the one hand, procedural. She found that the acting U.S. attorney for the Eastern District of Virginia who secured the indictments, Lindsey Halligan, was illegally appointed and had no authority to do what she did, so the results of her efforts are categorically invalid. Halligan is a Trump flunky, one of his many former personal lawyers whom he brought into the government. She has no prosecutorial experience. She was evidently installed for the precise purpose of indicting Comey just days before the statute of limitations expired. Her well-respected predecessor refused and so was forced out.

On the other hand, as Judge Currie observed, Halligan’s botched appointment strikes at the very heart of the Constitution’s separation of powers. It was not only procedurally flawed. It was unconstitutional. Which is why it should matter to every American who cares about our floundering democracy.

Article II of the Constitution states that presidents can appoint what amounts to cabinet-level officers of the executive branch, like Attorney General Pam Bondi, but that their confirmation is contingent on securing the advice and the consent of the Senate. The point of this is obvious: If too much power is concentrated in the president, the Framers viscerally understood, the United States would just be another monarchy.

For “inferior” officers (meaning people below cabinet-level officers), the Constitution states that Congress may “by Law” vest their appointment in the president alone, in the courts, or in the “Heads of Departments.” Each state has its own U.S. attorney. They are inferior officers. But they are normally appointed with the advice and consent of the Senate.

Congress nonetheless passed a law allowing for the attorney general to temporarily appoint of interim U.S. attorneys if there’s a random vacancy. That statute adds that the temporary appointment expires after 120 days, after which it’s up to the local federal district court to fill the vacancy. Halligan was appointed after the initial 120 period had already expired under her predecessor. Currie thus reasoned that the only ways that Halligan could have been lawfully put in that position was either by a federal judge or through the advice and consent of the Senate.

Bondi attempted a bunch of cute maneuvers to blunt the Constitution and the temporary vacancy statute, including trying to “ratify” Halligan’s indictments after-the-fact, as if her own post hoc imprimatur on Halligan’s shoddy work is all the law needs these days. No luck, wrote Currie: “The implications of a contrary conclusion are extraordinary. It would mean the Government could send any private citizen off the street—attorney or not—into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law.”

Of course, it’s glaringly obvious by now that neither Trump nor his top law enforcement official, Pam Bondi, care much about what the law actually says—or why it says it. To them, Trump is the law, and Bondi his personal servant. Predictably, Bondi slammed Judge Currie’s decisions, calling the grossly incompetent Halligan an “excellent” attorney and promising an immediate appeal.

In an Instagram video, Comey declared that the case “matters most because a message has to be sent that the president of the United States cannot use the Department of Justice to target his political enemies.” Oh, if only that were so.

Comey might personally be out of the woods, but the rule of law is not. For him, the statute of limitations has expired on the two-count indictment against him on dubious charges of perjury and obstruction of justice in connection with his testimony before Congress. Bondi might try anyway; she has an argument that the government gets the benefit of a six-month statutory grace period to get another grand jury to indict him. But Currie’s ruling suggests that this provision doesn’t apply to an indictment brought by a fake U.S. attorney whose actual authority was no different from that of a random person off the street. Bondi could also direct her underlings with “finding” some other “crime” to charge Comey with and see where that goes, just as a way to add frustration and expense to Comey’s life, as despicable as such a strategy would be.

Unfortunately for Letitia James, the indictment against her is comfortably within the statute of limitations, so she can expect a second round of nonsense. And for the dozens of others in the political crosshairs as Trump continues to threaten vindictive prosecutions, Currie’s rulings won’t help them. Even this ham-handed DOJ will know not to make the same mistake twice.

So where does this leave the rule of law? Sadly, that’s in the hands of a menacing president and a savagely unethical attorney general who both operate under a set of laws that were designed against an historical presumption that prosecutors act with integrity based on facts and law, not malice. Those days are over.