The Trump administration’s bid to revive two high-profile criminal prosecutions that a federal judge had tossed faced a frosty reception at a federal appeals court Tuesday, as the judges expressed skepticism about whether the U.S. attorney who brought the charges was lawfully appointed.
A three-judge panel on the U.S. Court of Appeals for the Fourth Circuit heard the Department of Justice’s appeal of the dismissal of prosecutions against former FBI Director James Comey and New York Attorney General Letitia James. The two cases were dismissed after a federal district judge found former interim U.S. Attorney Lindsey Halligan, the prosecutor overseeing the cases, was unlawfully appointed.
DOJ lawyer Henry Whitaker argued to the panel that Halligan was not improperly appointed because she was filling a vacancy and had not been voted down by the Senate, making her qualified to serve in the role. Whitaker further added that “in no event would dismissal of the indictments be an appropriate remedy for what can be at best described as an error in the title that Miss Halligan used when she presented before the grand juries and signed the indictments.”
Halligan was appointed as interim U.S. attorney for the Eastern District of Virginia in September 2025 by then-Attorney General Pam Bondi, after the previous U.S. attorney resigned, but a federal judge ruled the appointment came after the 120-day period in which the attorney general could select an interim prosecutor. Whitaker faced a grilling over his argument for reviving the indictments signed off by Halligan, with one of the judges expressing concern over how the DOJ’s argument could effectively cut the Senate out of the appointment process.
One of the judges expressed concern about a scenario in which the DOJ could repeatedly appoint a replacement 119 days into a prosecutor’s tenure, replacing an interim prosecutor selected by the DOJ with another DOJ pick despite the time limit imposed in federal law. The federal judge questioned whether that would be “essentially cutting off both the district court and the Senate’s advise and consent power,” despite the outlined role those two bodies have in the process.
Lawyers for both Comey and James urged the panel to uphold the lower court’s dismissal of the indictments, arguing Halligan was unlawfully appointed and focusing solely on that argument during Tuesday’s hearing.
The three-judge panel included U.S. Circuit Judges Albert Diaz, an appointee of former President Barack Obama; Julius Richardson, a Trump appointee; and Henry Floyd, an Obama appointee. Two of the three judges appeared deeply skeptical of the DOJ’s arguments, but the panel did not indicate how it would ultimately rule or set a timetable for a ruling.
The appointment of U.S. attorneys without Senate approval is an issue that could make its way to the Supreme Court, either through an appeal of the Fourth Circuit’s eventual ruling or via a different case petitioned to the high court last week out of Nevada regarding a separate disputed U.S. attorney.
TRUMP FACES MAJOR TEST OVER APPOINTING US ATTORNEYS WITHOUT SENATE APPROVAL
The DOJ filed a petition to the Supreme Court over a ruling in the Ninth Circuit that disqualified Sigal Chattah from leading federal prosecutions in Nevada. Chattah was appointed to serve as U.S. attorney for the interim 120-day period, but two days before the period was set to end, Bondi designated her the office’s first assistant and asserted that the Federal Vacancies Reform Act automatically made Chattah the acting U.S. attorney. A federal judge ruled that Chattah could not serve as acting U.S. attorney despite the DOJ’s assertion, and a federal appeals court affirmed that ruling.
The Supreme Court could decide on whether to take up the Nevada U.S. attorney case for arguments in the coming months.