Lawfare Live: Judge Dismisses Indictments Against James Comey and Letita James

Summary

The Lawfare Podcast Summary

Episode Title: Lawfare Live: Judge Dismisses Indictments Against James Comey and Letitia James
Date: November 24, 2025
Host: Natalie Orpet
Guests: Roger Parloff (Senior Editor, Lawfare), James Pierce (Contributor, Lawfare)

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Overview

In this episode, Natalie Orpet is joined by Roger Parloff and James Pierce to examine the recent federal district court decision dismissing the indictments against former FBI Director James Comey and New York Attorney General Letitia James. The panel explores the statutory and constitutional questions surrounding the appointment of interim U.S. attorneys, the role of the Appointments Clause, and the prospects for refiling or appealing the cases. The discussion is rich with legal detail and informed speculation about broader implications for DOJ practices.

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Key Discussion Points & Insights

1. Context and Background (01:42–03:15)

• Natalie Orpet introduces the episode and gives context:
  • Comey was accused of lying to Congress in September 2020; James was accused of mortgage fraud in Virginia.
  • The prosecutor in both cases, interim U.S. Attorney Lindsey Halligan, was challenged as unlawfully appointed.
  • The dismissal motion was consolidated before Judge Curry—neither defendant’s original trial judge.

2. Judge Curry’s Ruling Explained (03:17–06:54)

• Roger Parloff details the crux of Judge Curry’s decision:
  • Halligan’s appointment fell outside the statutory framework (28 U.S.C. § 546 governs interim appointments).
  • The process for appointing interim U.S. attorneys is limited to 120 days, after which the district court must appoint.
  • When the initial interim attorney (Siebert) resigned, the Attorney General (Bondi) improperly made another interim appointment, violating the statute.
• Key Quote:
  • "Judge Curry said there isn’t an ambiguity and said it was unlawful." – Roger Parloff (06:33)

3. Appointments Clause and Statutory Nuances (06:54–10:03)

• James Pierce explores the constitutional dimension:
  • The Appointments Clause differentiates "principal" and "inferior" officers; U.S. Attorneys are generally seen as "inferior."
  • Congress can allow appointment of inferior officers by the President, department heads, or courts.
  • The main question: Is failure to follow the statutory process a constitutional violation or just a statutory one?
• Key Quote:
  • "The judge here concludes that it's a constitutional Appointments Clause violation." – James Pierce (10:03)

4. Dismissal Without Prejudice: What Next? (10:31–16:35)

• Natalie Orpet and Roger Parloff discuss implications:
  • Dismissal "without prejudice" means charges can be refiled.
  • For Comey, statute of limitations may have expired (the indictment came just before the deadline).
  • 18 U.S.C. § 3288 may provide the government six extra months to re-indict, but its applicability is debatable if the original indictment was void ab initio.
  • Potential for further litigation over whether the statute of limitations is now a bar for prosecution.
  • Both defendants also alleged other misconduct (vindictive/selective prosecution), but Judge Curry's decision was narrowly focused on the appointment issue.

5. Potential Appeal and Further Motions (16:55–23:47)

• James Pierce and Natalie Orpet consider the likely government appeal:
  • Once dismissed, the cases are off the trial judges' dockets; remaining motions (e.g., vindictive prosecution) are on hold pending appeal.
  • The appellate path may include the Fourth Circuit, potential en banc review, and possibly the Supreme Court.
  • If the appellate courts reverse, unresolved motions could come back into play.

6. Wider Disqualification Pattern and DOJ Practices (24:55–30:15)

• Orpet, Parloff, and Pierce place the ruling in national context:
  • Similar interim U.S. attorneys have been disqualified in Nevada, Los Angeles, New Jersey, New Mexico, and New York.
  • Statutory changes in 2006 and 2007 underscore Congress's desire to prevent indefinite service by interim appointees.
  • The current DOJ seems either incompetent or intent on manipulating appointments to serve political ends.

7. Attorney General's Attempt to Ratify Appointments (31:30–37:36)

• Discussion of Bondi’s "ratification" effort:
  • Attempts to retroactively validate Halligan's decisions were procedurally and substantively problematic.
  • Appointment of special prosecutors by the Attorney General could present a harder challenge for the courts to reject—if done in a neutral, non-case-specific way.

8. Venue Shopping and Broader Prosecution Strategies (37:36–39:42)

• Exploration of whether cases could be brought in other districts:
  • Statute of limitations would still apply to Comey; forum shopping likely seen as abusive.
  • Government may be exploring new charges or different venues regardless.

9. Predictions and Takeaways (39:42–45:25)

• Roger Parloff: The ruling is strong and thorough; appellate prospects may depend on higher court attitudes.

• James Pierce: The text, history, and statutory purpose favor the challengers, but higher courts (especially the Supreme Court) may be less receptive; ultimate resolution might just require administration to secure Senate confirmation for appointees.

• Key Quote:

  • "You really get the picture of a government that is either just very incompetent or very committed to sidestepping and otherwise manipulating the appointment process to kind of keep in place those that they want to carry out their bidding." – James Pierce (30:16)

• Key Quote:

  • "Appoint people and work to get that confirmed and make all this stuff go away." – James Pierce (45:22)

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Notable Quotes & Timestamps

• "Judge Curry said there isn’t an ambiguity and said it was unlawful."
  Roger Parloff (06:33)
• "The judge here concludes that it's a constitutional Appointments Clause violation."
  James Pierce (10:03)
• "The statute was called the Preserving United States Attorney Independence Act of 2007... and this is why."
  Roger Parloff (26:11)
• "You really get the picture of a government that is either just very incompetent or very committed to sidestepping and otherwise manipulating the appointment process to kind of keep in place those that they want to carry out their bidding."
  James Pierce (30:16)
• "If they did it like James said, in some sort of more, you know, a mortgage fraud prosecutor or something like that, then... it would be pretty hard to find fault."
  Roger Parloff (37:25)
• "Appoint people and work to get that confirmed and make all this stuff go away."
  James Pierce (45:22)

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Important Segment Timestamps

• [01:42] – Episode context and cast introductions
• [03:17] – Judge Curry’s ruling examined
• [06:54] – Appointments Clause law and nuances
• [10:31] – Dismissal without prejudice: next steps
• [16:55] – Appellate process and case status
• [24:55] – Frequency of interim U.S. attorney disqualifications
• [31:30] – Ratification attempt and special prosecutor theory
• [37:36] – Venue/post-dismissal prosecution strategies
• [39:42] – Predictions on likely outcomes and appeals

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Tone & Language

The conversation is measured, analytical, and serious, with a tone of legal rigor and cautious speculation. Speakers make clear distinctions between statutory requirements and constitutional implications, often flagging areas of legal uncertainty or disagreement.

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Conclusion

This episode provides a comprehensive, clear-eyed analysis of Judge Curry’s dismissal of the indictments against Comey and James. The participants demystify statutory and constitutional dimensions, offer candid assessments of DOJ practices, and map out possible next moves for prosecutors and courts. Anyone following high-level federal prosecutions or the functioning of the Justice Department in politically charged environments would find this discussion richly informative.

Transcript

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[Natalie Orpet]

It's Law Fair Live the Now. I'm Natalie Orpet, executive editor of Lawfare. It is 4pm Eastern Time on November 24, and I am here with Lawfare senior editor Roger Parloff and Lawfare contributor James Pierce to talk about a district judge having dismissed the cases against former FBI Director James Comey and New York Attorney General Letitia James. I'm going to give a little bit of context before we get started for folks who are not quite as in the weeds as we here at Lawfare are, which is to say, most everyone in the world. So former FBI Director Jim Comey was accused of lying to Congress at a September 30, 2020 hearing. Letitia James was accused of mortgage fraud relating to a property in Virginia. Both have been regular targets of Trump's ire over the years. Both of them, in the course of their proceedings, filed motions to dismiss on a number of grounds. They both filed motions to dismiss on the grounds that the prosecutor in both of their cases, who is interim U.S. attorney Lindsey Halligan, or is it question mark, was unlawfully appointed. So that motion for each of their cases was consolidated before Judge Curry, who is a judge that neither of them has in the rest of their criminal case. And Judge Curry is the one who issued today's decision. And Roger, let us start with you. What did Judge Curry find today?

[Roger Parloff]

Well, she found that she was unlawfully appointed. It was the question was she was appointed under 28 USC 546, which is a statute that for creating when there's a vacancy in a U.S. attorney position, it permits the attorney General to make the appointment but for 120 days. And during that period, it appears that the idea is that the president has an opportunity to go. The ordinary way to appoint a permanent U.S. attorney is to go to the Senate and get the president appoints and gets Senate approval that's under 541. So this is an interim appointment. And it says that the attorney General makes the appointment for 120 days. And then after that, if the president has not managed to get somebody approved by the Senate, it says that in subsection D, it says that the district court of that judicial district may appoint the interim the U.S. attorney. And so the issue here was the facts here were that the original interim appointment was made back in January. And that was a guy named Eric Siebert. As soon as Trump took over the usual thing, the previous US Attorney under Biden, who is the last Senate approved person, retired and resigned. And Eric Sieber was appointed by the attorney General. And then his term was going to run out in May, May 21. And so the district court, which thought that he was pretty good, appointed him pursuant to 546d because nobody had been approved by the Senate. And he stayed in until September 19th. And then under pressure from Trump, he resigned. And the judge mentions, although it's not crucial to the decision, the reporting that he was balking at bringing these two prosecutions. And he said, I want him out. And he resigned that day. The next day was the famous Truth social post saying Pam, something to the effect that we can't delay any longer and proposing halligan. Halligan's appointed two days later, Comey's indicted three days later, and I think James is indicted October 9th or so. So that's what brought us here. And the question was, when there's this second vacancy, when Siebert resigned, did Attorney General Bondi have an opportunity to appoint again or did it have to be the district court again? And that's the ambiguity, if there was an ambiguity. And Judge Curry said there isn't an ambiguity and said it was unlawful.

[Natalie Orpet]

Okay. So James, the holding talks quite a bit about Section 546, as Roger was Describing it also mentions the Appointments Clause. So let's dig in a little bit on the law here. Tell us a bit about what the Appointments Clause issue is and some of the nuances around that.

[Roger Parloff]

Sure.

[James Pierce]

So the Appointments Clause requires constitutional provision that requires as a default, officers of the United States to be appointed by the President and confirmed by the Senate. And it is constitutionally required for so called principal officers, officers who sort of the shorthand for this have no supervisor. By and large, courts of appeals and all courts deciding this have concluded that U.S. attorneys are not principal officers, they are inferior officers. Though in some of the arguments over U.S. attorney appointments throughout the country, some defendants are making arguments that US Attorneys are principal officers and thus they are required to go through Senate presidential appointments and confirmation. Assuming that they are inferior officers, which is where the case law has landed, Congress can by law provide for their appointment to, through either the head of a department, the President, him or herself, or a court of law. And so this case implicates kind of the various ways a U.S. attorney can be appointed. As I think Roger mentioned, the default way, the typical way a US Attorney comes in is appointed and sort of takes power is through a presidential appointment and a senate confirmation. That's 28 USC 541. The statute Roger's been talking about is the sort of the U.S. attorney specific provision. So that is Congress by law under the Appointments Clause, providing for an Attorney General appointment followed by a judicial appointment. Right. Both of those permitted under the Appointments Clause. And then there's another statute that I don't think we really need to talk about here. It's been implicated in some of the other litigation around US Attorneys, which is the Federal Vacancies Reform act, different law that provides for executive branch vacancies, including U.S. attorneys, but not implicated on the, on the Halligan facts here. And so that is the interplay. And I'll add maybe answering a question you didn't quite answer. So like, why is there an Appointments Clause issue here? It's an interesting. There's one page in these two opinions, right? So there's one opinion for the Letitia James case and one for the, for the James Comey case. And what the district court judge, Judge Curry basically says here is sort of, I think starts from the assumption that the U.S. attorney is an inferior officer and says the reason there is an Appointments Clause violation here is that the government didn't follow the law or didn't abide by the law. In this case, the US Attorney specific provision, 28 USC 546. I'll say that's not an obviously correct result.

[Roger Parloff]

Right.

[James Pierce]

There's actually been some fighting back and forth over when Congress provides a law, and then there are questions about whether the Executive Branch has complied with it. Is that a constitutional problem or is that a failure to comply with the statute that exists just has been misused or violated by the executive branch? The judge here concludes that it's a constitutional Appointments Clause violation.

[Natalie Orpet]

Yeah. Thanks. And that's actually why I wanted to take a little detour into the constitutional question, because we've seen a number of cases really directly challenging the scope of the Appointments Clause and to what extent Congress has authority within that framework. So we won't go on too much of a tangent on where else that has come up. But I will just flag for folks that the Appointments Clause is very much under discussion in a number of different contexts in litigation and has been for a while now. So, as we've discussed, the decision dismisses both cases, dismisses them without prejudice, which means the government is at liberty to refile the charges. I want to talk about what that means exactly, because as I said, without prejudice means just definitionally that the government has the right to refile an indictment. Of course, there is a complication with respect to the Comey indictment because it was brought only a couple of days before the statute of limitations expired. That's not the case in the James case. But I just want to talk through how this might play out. So assume for, for now that the government did want to take advantage of the opportunity to refile indictments in these cases. How do you think, Roger, that that would play out.

[Roger Parloff]

Well in Comey's case. He would certainly make an argument that the statute of limitations has run. And his argument would be that the indictment was defective. It was void ab initio, they say. Void from the get go, basically. And that's what Judge Curry said in the ruling. She adopted that. And so the theory would be that the Statute ran out September 30th. The government would doubtless argue that there is a statute called USC 3288, and it provides that in general, if indictment is dismissed, and while it was pending, the statute ran out, the government gets six calendar months. And to represent, even though the statute ran out in the interim, that statute, I mean, again, the argument. So they will cite that that statute itself has an exception at the end. It says one is obvious. It doesn't. One is if it's dismissed for statute of limitations grounds. You can't use this, but the language is the section does not permit the filing of a new indictment. Basically, if it's dismissed for statute of limitations grounds, quote, or some other reason that would bar a new prosecution. I'm certain that here they would say, first of all, that this section never comes into play because the indictment was void from the get go. And even if it did, this last section, this sort of fuzzy last section would. Would kick in that basically this is still barred by the statute. But, yeah, it'll be a fight. The judge actually did. Well, I. Yeah, she has a footnote in which she. Footnote 21 in which she mentions a couple cases that did hold that a defective indictment doesn't toll the statute of limitations and it doesn't stop it and the statute keeps running. Those are district court cases, so they aren't, you know, it's not like a Supreme Court case. It's not going to be decisive. But I'm sure those are what Comey will cite. I guess they will probably try to raise. I can't. Maybe I can't play it out further, especially for James. Letitia. James. But they had, I knew, I mean, they had argued in their briefs about that it should be dismissed with prejudice because of the flagrant misconduct and the going. Really referring to other matters, the motions to dismiss for vindictive and selective prosecution. And of course, Curry. Those matters weren't before Curry. This issue was shipped out to her solely for the unlawful appointment issue. And that happened because. To avoid the appearance of impropriety, because 546 gives the appointment power to the district court in this case of the Eastern District of Virginia. So you don't want a judge from the Eastern District of Virginia to be deciding the case. So because she was insulated, she's really not allowed to take into account all the shenanigans. And so she couldn't say there was flagrant misbehavior. And so in a way, Comey gets a little. And James get a little short shrift here because of this procedural posture.

[Natalie Orpet]

Right. So let's play out the alternative of what could happen here, which actually White House Press Secretary Caroline Lovett has suggested will be underway shortly, which is that the government might appeal this decision from Judge Curry. James, can you talk through how that would play out?

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[James Pierce]

Yeah, so frankly, even even before the government were to notice an appeal and as you rightly said, Natalie, it certainly sounds like they will, and I would expect the government to do, to do that here. Once Judge Curry has dismissed the indictments, even without prejudice, as she did here, that essentially takes the case, each of the cases, away from the district court. Court. The district court here, of course, in the somewhat peculiar posture, includes sort of two judges each. Right. Judge Curry is, is operating by designation. She's formally sitting in the Eastern District of Virginia in the same case as Judge Nakmanoff, who's presiding over the Comey prosecution, and Judge Walker, who's presiding over the Letitia James prosecution. And as, as folks listening here or following these cases will well know, the appointments motion that we are talking about here was one of just many in both of those cases filed by, by the defense teams seeking dismissal. But what I think happens here is that the ruling dismissing the indictment takes these cases out of the hands of the district court. And now that the government seems poised to appeal, I think we're headed to the, the 4th Circuit on an appeal of both of these decisions. And depending on what the fourth Circuit does, there could be sort of further appellate proceedings, including at the en ban 4th Circuit and up all the way to the Supreme Court. Meanwhile, all of those other motions, the motions seeking to dismiss for selective and vindictive prosecution for outrageous government conduct, you know, in some instances, I think the Comey case has additional things about other misconduct in the grand jury, some of which came out at the hearing last week. Those just will sit there. And you could actually imagine a world where this case goes up and potentially is. Is reversed at the, at the court of appeals level, at a Supreme Court level, comes back, and then, as I would understand it, it would be in front of the two judges presiding over these cases to then continue resolving the issues before it. So there would be then live motions to, to dismiss. I mean, as a formal matter, they might need to be refiled, but, you know, they're clearly already there. And I know Judge Nachmanoff had a hearing, of course, last week on the selective and vindictive prosecution motion that is still being litigated in the, in the James case. So all of that stuff will essentially just go on, on pause as, as the appeal of this kind of winds its way up the appellate chain.

[Natalie Orpet]

So is it fair to say that the cases, for the purpose of Judge Dokmanoff, who is presiding over Comey, and Judge Walker, who is presiding over James, the cases are just frozen. There's nothing further that they can do because given Judge Curry's decision The case is no more. That piece of it will go up on appeal, and the motions to dismiss are sort of will remain unresolved unless for some reason the judges, one or the other or both, decided to deny as moot, in which case, I assume even then those could be refiled. Don't you think, James?

[James Pierce]

I do. I think that if they. I don't know why a judge would bother to deny as moot unless it was some kind of housekeeping, sort of to say denied as moot. Given the dismissal on the, on the appointments issue, I mean, there is a world, it strikes me as unlikely, where the government would seek to stay the court's ruling on appointments in both cases. And if that were granted and that ruling were stayed, in other words, any dismissal were stayed, the appeal would still happen. There'd be an argument that the. Since the case was the stay or the judgment dismissing the case was stayed, the. The other two judges, Nachman off and Walker, could continue to, to adjudicate the pending motions, including the selective and vindictive motions, though I have a hard time understanding why the government would do that, other than perhaps kind of a reflexive impulse to just file stay motions in many cases. But, but here I just, I. I'm not sure what strategic benefit the government would see in doing that.

[Natalie Orpet]

I think it's important context here generally to recognize that this is, I believe, the fourth interim U.S. attorney who has been disqualified by a court. There was similar decisions in Nevada, in Los Angeles and New Jersey. I believe there's one pending right now in, in New Mexico. So I'm curious.

[Roger Parloff]

And New York, Northern District of New York, John Sarco.

[Natalie Orpet]

That's right. That's right. So I want to sort of talk about the broader implications here. Of course, in each one, there is some specificity to the proceedings in which they're happening, but I think it does say something broadly about doj. I'm wondering, Roger, what are your thoughts on that?

[Roger Parloff]

Well, it certainly does. It's. And actually, you know, I was reading through the decision, and there's a certain issue in here I won't get into, but the statute we're looking at was amended in 2006, and then it was amended back in 2007. And.

[Natalie Orpet]

Sorry, which statute is that?

[Roger Parloff]

546. Yeah. And the. When it was amended back, I'm looking for the name of it I hadn't seen doesn't get a lot of attention because the name of a statute isn't supposed to have a huge weight. But the name of the statute was Preserving United States Attorney Independence act of 2007. And they had briefly taken away this 120 day limit after which the district court would appoint, and then they put it quickly back the next year. And this is why. And so, yeah, there's this extraordinary pattern and it sort of speaks for itself and it is the backdrop which the lawyers certainly put into their briefs. Even though Judge Curry did not allude to that background here, I did want to mention the difficulty. Even though this is dismissed without prejudice, assuming the Fourth Circuit affirms, you know, it would still be quite difficult to bring these cases because as things stand, it wouldn't be Halligan and it would be somebody appointed by the district court. And persuading somebody appointed by the district court to bring either of these cases is going to be almost impossible. So for these to go forward, Trump needs to get one of his people approved by the Senate, which, you know, may not be hard, but it would need to be a total loyalist again that would go through the Senate to restart these cases. So I don't think it's quite as ominous as it might seem.

[James Pierce]

Can I jump in with a couple of quick thoughts on that, please? So I think just emphasizing the last point Roger made, I'm not sure we've said this explicitly, but I think it's important to note that among the, the pieces of the order at the end of Judge Curry's disposition of these cases is actually something that neither of the defendants sought, nor do I think they could, which is basically to say, like the, the next U.S. attorney has got to be either a Senate confirmed, presidentially appointed and Senate confirmed, or it's one that the courts put in. And I think that alone will be something that will quite irk the government, the administration. And they will probably argue that the court wasn't empowered to do that. All it was deciding here was the validity of the indictments and the validity of Halligan as to these prosecutions, rather than kind of the global effect of Lindsey Halligan as the U.S. attorney or in this case, interim U.S. attorney for the Eastern District of Virginia. So it's quite an interesting order, and I think it's one that itself will get some attention and maybe a reason the government wants to make move quickly the second thought. And I think, Natalie, your question was kind of what is sort of the global landscape say about, you know, what we've seen in other judicial districts and here now. I mean, from one perspective, this case is actually quite different from those other cases. This has all been, as our discussion has indicated, an analysis of 28 USC 546, the interim US Attorney provision, whereas in these other places, a lot of the theory has actually turned on an interpretation of the Federal Vacancies Reform act, as well as a kind of fallback theory that the government has advanced, which is, look, even if you don't buy the 5, 4, 6 interim U.S. attorney argument, and even if you don't buy the Federal Vacancies Reform act, the Attorney General could delegate her own power to a special counsel or a special attorney. And the government has used that kind of belt and suspenders approach elsewhere. They did it very belatedly here.

[Roger Parloff]

Right.

[James Pierce]

They did it as they filed their opposition and that that played a role in Judge Curry's decision today and in sort of rejecting the efforts at ratification or kind of belatedly giving Halligan a kind of imprimatur of a government attorney. But I think kind of one takeaway notwithstanding these quite in the weeds doctrinal nuances is that you really get the picture of a government that is either just very incompetent or very committed to sidestepping and otherwise manipulating the appointment process to kind of keep in place those that they want to carry out their bidding. And I think in the Eastern District of Virginia just have such a clear example of someone to get to the point that I think Roger ended on, who seems by all accounts to have been put in specifically to go after the president's sort of perceived political enemies. And so that's a, that is a pretty frightening prospect and one that I think quite rightfully is giving courts kind of throughout the different circuits and district courts quite a lot of pause and quite a lot of skepticism when they are kind of analyzing what are otherwise just sort of doctrinal arguments that the government is putting forward.

[Natalie Orpet]

Yeah. And thank you. I did want to circle back because I realized that we hadn't talked about Attorney General Bondi's effort to ratify or that is retroactively approve what Lindsey Halligan did, which as some folks may recall, ended up being quite embarrassing, I would say, in the, in the Comey case, where it turned out that some of the grand jury testimony, or I'm sorry, the grand jury transcript was not available in time, which means that Bondi couldn't have read it all before she supposedly ratified what Lindsay Halligan had done. It did, in the course of that, though, as you say, James, raise this argument that the Attorney General has different inherent authorities to appoint a special sort of prosecutor. So I'm wondering in this context, where there's this open question of whether someone might, someone else besides Lindsey Halligan might bring charges. Given that both of these cases were dismissed without prejudice. This is putting aside the statute of limitations issue for Comey, whether someone else might do it even if it were not a U.S. attorney. So imagine that the piece about, no, the question of who the U.S. attorney in the Eastern District of Virginia is going to be is now with the courts. The administration can play no further part in deciding until they get Senate confirmation. Is there a possibility that that theory, namely that the Attorney General has some authority to appoint a sort of special prosecutor, could that person bring charges against Comey or James? Again, setting aside the statute of limitations argument with James, do either of you have thoughts on that?

[James Pierce]

I have thoughts. I mean, I think that that's a much, much harder argument for courts to reject outright. I do think that. So we've seen versions, as I just mentioned, of that kind of delegation, what I call the delegation theory in litigation elsewhere, and to the extent it has basically just served elsewhere as an end around giving someone the full powers of a U.S. attorney where the government is not complaining with the statutes we've already talked about, I do think that that presents some significant constitutional questions and just questions about sort of implicating anti circumvention principles. And frankly, that's how in many respects district courts have elsewhere analyze it. In addition, under, and I don't want to get too in the weeds here, but under the Federal Vacancies Reform act, there's basically a provision that says government, you can't use general delegation through theories to get around the Federal Vacancies Reform act, which is, and, and in the legislative history sort of specifically identifies the kind of conduct that we've seen the government engaging in here. But to the extent your question is slightly different, which is what if the U.S. attorney were to say, excuse me, what if the Attorney General were to say, I'd like someone to focus on mortgage fraud prosecutions in the Eastern District of Virginia, not unlike Ed Martin, as I understand it, one of the many hats that he now wears is mortgage fraud czar or mortgage fraud attorney. You know, that's not so different from doing something like that would not be so different from what happens with some regularity or used to happen with some regularity. Let's say there's an investigation of a public official and the U.S. attorney's office needs to be recused because that public official has connections with many or the U.S. attorney. And so there's someone who's specially brought in, whether it's from main justice and say the Public Integrity section or a type of special counsel that there is, notwithstanding Judge Kennan's ruling with respect to special counsel Jack Smith, there's a pretty long pedigree. And frankly, when the attorney for the government, Henry Whitaker was asked during this hearing, sort of the combined hearing about Judge Cannon's ruling, I think it sort of caught him a little short, but, but seemed to suggest, no, no, we certainly have the ability to kind of delegate in, in the kinds of ways that would permit a kind of a limited ambit of a prosecution for, you know, all mortgage fraud cases or a certain sort of slice of cases. So the fact that it would come in this instance after all of these shenanigans would I think, mean the courts would look at it pretty skeptically. But as a matter of first principle, as I said, I think that's a more coherent argument and a harder one to kind of identify flaws in.

[Roger Parloff]

If I could reinforce that, the weird retroactive order that Judge Bondi tried to issue here to reappoint her effective September 22 under one of these, she did it in sort of a ham fisted way. She first tried to say, I'll point her to special attorney with authority to do everything that the U.S. attorney can do. Running afoul of exactly what James said. It looks, it's obviously a circumvention. But then she said, and if the courts strike that down, then I want, I'll, I want to appoint her to handle the James prosecution and the Comey prosecution. And of course, the problem with that is that it reinforces the view that there's something vindictive and selective about these two prosecutions, which is exactly what Abby Lowell said as James attorney. So, you know, if, if they did it like James said, in some sort of more, you know, a mortgage fraud prosecutor or something like that, then it would, then it would be like he says, then it would be pretty hard to find fault.

[Natalie Orpet]

Yeah. The one other question I had is if a jurisdictional hook could be found in a different district, whether given that this was dismissed without prejudice, whether a different U.S. attorney could try to bring it in a different district.

[James Pierce]

With Comey, you'd still run into the same statute of limitations problem. So I'm not sure that would be a solution there. It's an interesting idea with Letitia James. I mean, of course, because it's dismissed without prejudice, they could just litigate it and potentially come back. And if they, if they win, then, you know, continue to do it in the Eastern District of Virginia. But yeah, you know, I'm struggling. It'll probably occur to me as soon as we're finished, you know, recording here, but it strikes me that there ought to be a legal doctrine that doesn't allow that. But I'm struggling to identify what it is. I mean, it just seems sort of like the blatant form of forum shopping. You know, you kind of get your prosecution kicked out of court in one place. So you say, oh, no problem, you know, we've got venues here, we'll go and do it there. Yeah, it's an interesting idea. And as I said, there's no immediately obvious reason why that's why that wouldn't work, but it, but it seems like it shouldn't.

[Natalie Orpet]

It certainly would add quite a couple of pages to a motion to dismiss for vindictive and selective process.

[James Pierce]

Yeah, to Roger's point earlier, I think that's exactly right. But that's obviously totally separate from the question of could you actually proceed with the prosecution and secure another indictment?

[Roger Parloff]

I mean, I gather that they are pursuing other charges in other districts. Right. They're trying to find charges in New York against James. They're trying to find charges against Comey in the Western District of Virginia. If they do, nothing prevents them from bringing those except another vindictive prosecution motion.

[Natalie Orpet]

Okay, so we've talked through the couple of permutations of how this might go. I want to get each of your thoughts on your expectations of where in fact it will go. So, Roger, let me start with you. What's going to happen next?

[Roger Parloff]

Well, I really don't know about the strategy of the appellate decisions the government's going to take. I think James is a better person to estimate that. I mean, I think this was a very strong ruling. I had actually thought that in some ways this issue, the Pure 546 issue, was a bit harder than some of the other appointment clause issues, which were really jerry rigged, involving, like James said, you know, it would involve 546. It would also involve the Federal Vacancies Act. It would usually involve some special delegation. You know, they were really jerry rigged and together. And in fact, I think one of them, Bill Asali, he told Fox News shortly before his term, his 120 days ran out, he said, well, we've got some tricks up our sleeves, you know. So it all sounded, you know, nakedly a way to get around what Congress wanted. This one was a little harder. For instance, if you had thought, suppose Siebert had just, and I hate to say this, but suppose he had just died. You know, I Don't think anyone knows exactly. It's a little bit of a harder case to see whether the Congress really foresaw in that case. Does. Would Pam Bondi not get another chance? It would have to be. It would have to be the district court again. So I thought it's a. But I thought the way she wrote it, it convinced me that maybe this is a cleaner issue than I realized. She marshaled a lot of different. The statutory interpretation principles and the text and the history. And I was convinced by the end. But. So I think it. I think it seems strong on appeal.

[Natalie Orpet]

But you do think it will be appealed? Is that your guess?

[Roger Parloff]

Yeah.

[Natalie Orpet]

Okay.

[Roger Parloff]

I mean, James, that's my guess.

[Natalie Orpet]

James, how about you?

[James Pierce]

So I also think it will be appealed. I think it's a close, close argument. I mean, I think the textual argument for me could go either way in terms of the challenges of the government's reading. I think that the district court lays out what I think are the strongest text, contextual arguments supporting the challengers. I think sort of history and consequences very strongly favor the challengers. You know, you have these. These hypotheticals of essentially just allowing the. The attorney general, the executive branch, to, without any form of either Senate or court review, just have somebody in kind of forever and forever. And the statutory amendment issue that Roger mentioned in 2006 and 2007 is a pretty clear picture that that's not what. What Congress wanted. You know, that said, as if this goes to the. So go to the 4th Circuit, I think you could have panels who are. Who are still somewhat uncomfortable, particularly with that provision in the order that says, you know, you've gotta. You've gotta sit and wait for the court to act. If you've got. If you've got judges that take a stronger view, as I think a majority of the justices on the Supreme Court do, of the kind of. The critical role the executive branch plays in prosecutions. And so I could see a much more skeptical Supreme Court if it gets up there. You know, the other piece about all of this that I think makes it hard to predict is, you know, of course, a challenge is already pending. It's been argued in the Third Circuit. The ninth Circuit has got the case out of Nevada right now, and the case out of the Central District of California is, Is going through its litigation as well. You know, in some ways, I, I would imagine if this gets up to the Supreme Court, they'd sort of prefer, or at least the country would prefer to. To kind of resolve all of these issues together and, and the Halligan stuff really is just the, the U.S. attorney specific provision. Five, four, six. The others are the, the federal Vacancies Reform act and, and delegation. And so in some way to kind of get everything up and get some kind of, you know, it's not really how the court works to do kind of a global resolution, but otherwise we're just going to have this over and over again in all of the many districts. And so some way of some sort of certainty, I think sooner rather than later. Although, you know, I suppose on the one hand, or I suppose on the other hand, one response would be like, look, administration just nominate people and get, you know, work to get them in front of the Senate and then all of these problems go away. Because nobody disagrees that a presidentially appointed and Senate confirmed U.S. attorney has a four year term and will legitimately preside over any and all investigations and prosecutions. Obviously you'll still have things like selective and vindictive arguments to make, but you're not going to spend your time fighting about appointments. And so you know that that's maybe an argument the other way. The Supreme Court just says, you know what, you know, we're not going to get involved in this because there's a really easy answer to it and the administration is not taking that path. Appoint people and work to get that confirmed and make all this stuff go away.

[Natalie Orpet]

Yes, that is in fact what the Constitution says. Okay, I think we are going to leave it there. James and Roger, thank you so much.

[Roger Parloff]

Thank you, Natalie.

[James Pierce]

Thank you.

[Natalie Orpet]

This podcast is part of Lawfare's livestream series, Lawfare Live. The now. Subscribe to Lawfair's YouTube or Substack to receive an alert the next time we go live. Our audio engineer for this episode was Tyler McBrien of Lawfair. As always, thank you for listening. So good, so good, so good.

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