For almost a decade now, we’ve watched as Trump plowed through guardrails intended to restrain a rogue executive, exploited one loophole after another, and managed to turn every legal ambiguity in his favor.
So it’s worth noting that one relatively small structural guardrail held firm and provided a check today on one of Trump’s worst abuses.
The dismissals of the politicized indictments of James Comey and Letitia James came down to a key provision in the law Congress passed to deal with U.S. attorney vacancies. The attorney general can appoint an interim U.S. attorney for 120 days, but after 120 days, the interim U.S. attorney must be selected by the judges in that district.
It’s a structural allocation of power between all three branches:
The executive branch gets to fill the slot, but only temporarily, so that it can’t do an end run around the legislative branch, where the Senate must confirm U.S. attorneys. If the executive could appoint interim U.S. attorneys indefinitely, the Senate’s role would be eviscerated. To square the circle, Congress gave the judicial branch the power to appoint interim U.S. attorneys after 120 days and thus assure some minimum degree of competence and professionalism in the district’s top federal prosecutor. The statutory arrangement also creates a “use it or lose it” incentive for the executive branch to work with the Senate to nominate confirmable candidates. Play too much hardball with senators, and you surrender your appointment power to district judges.
In trying to upend that settled regime for allocating power, the Trump administration was seeking to rob both of the other branches of some of their prerogatives. In rejecting the administration’s argument, U.S. District Judge Cameron McGowan Currie of South Carolina showed that statutory power structure to be durable and sustainable.
Coming out of the Nov. 13 hearing on the validity of Halligan’s appointment, I wrote that Currie gave no indication that she thought Halligan was lawfully appointed, but that it wasn’t clear Currie would go for the maximum remedy of dismissing the indictments with prejudice, meaning the cases could not be be refiled. In the end, she dismissed without prejudice.
But more importantly for our immediate purposes, Lindsey Halligan was precisely the type of U.S. attorney that the statutory scheme for power allocation was designed to avoid: a loyalist of the president who had been his personal attorney and most recently worked in his White House; a neophyte with no prior experience as a prosecutor; a transient figure dispatched to play a transactional role: indict named enemies of Trump without regard to the law, the facts, or principles of justice.
The big threshold question was whether Halligan was properly appointed in the first place, but the politicized prosecutions of Comey and James were rife with other legal infirmities. Because the cases were dismissed without prejudice, James can be re-indicted. It’s not clear that Comey can be because of the statute of limitations in his case. But assuming Currie’s rulings hold up on appeal, it will be up to an interim prosecutor appointed by the judges in the district — not by Pam Bondi — to bring new indictments at Trump’s behest. To do so, they would have to once again overrule or disregard the deep reservations of career prosecutors in the office and be prepared to stake their careers on cases already tainted by the stench of corruption.
