ALEXANDRIA, Virginia - A judge on Thursday appeared skeptical of Lindsey Halligan's authority to bring indictments against former FBI Director James Comey and New York Attorney General Letitia James, directing short, pointed questions at Department of Justice lawyers during a hearing on the matter.
Judge Cameron Currie, a Clinton appointee based in South Carolina, said she would decide by Thanksgiving on whether to toss Comey's and James' charges out on the grounds that Halligan was an unlawful appointee.
Comey's lawyer Ephraim McDowell argued the charges should be dismissed with prejudice, meaning they cannot be brought again, "to deter and not reward" what McDowell said were the DOJ's unconstitutional actions.
The hearing centered on President Donald Trump's decision to install Halligan in September as the top prosecutor in the Eastern District of Virginia days after ousting Erik Siebert, who opposed charging Comey and James, two of the president's top political foes. Amid the change, Trump posted a message to Attorney General Pam Bondi on Truth Social indicating that he wanted revenge for his own prior prosecutions and that Bondi needed to act fast.
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Halligan, a former insurance lawyer with no prosecutorial experience, brought the indictments almost immediately. Her name was the lone signature on each of them, and no Virginia prosecutors joined the case.
Comey's and James' lawyers argued her appointment was defective because Bondi improperly designated her as an interim U.S. attorney after Siebert had already served in that position, which had a 120-day term limit that had expired.
The lawyers said the indictments could not stand because Halligan, who in their view was an invalid appointee, was the only person to present charges to the grand jury.
Bondi signed a memo on Oct. 31 saying she retroactively ratified the indictments and designated Halligan a "special attorney" to avoid any doubts about her power to bring criminal charges. The judge appeared dubious of those moves.
"Let's cut to the chase. What about ratification, why do we need that?" Currie asked.
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The judge said that during her review of the transcripts of Halligan's presentation to the grand jury, it "became obvious" to her that "the attorney general could not have reviewed" Halligan's comments. Currie said a portion of the transcripts was missing and asked the DOJ how Bondi could have reviewed and ratified it.
Bondi "reviewed the material facts of the case," DOJ lawyer Henry Whitaker replied.
Halligan appeared in the courtroom on Thursday alongside Whitaker, a high-level DOJ official who has been leading court fights over the legitimacy of some of Trump's U.S. attorney appointees.
James' lawyer Abbe Lowell argued that Bondi might as well have been ratifying indictments presented to a grand jury by Steve Bannon or Elon Musk, using the pair as examples of people "completely unauthorized" to bring charges. Halligan was a "private person" when she entered the grand jury rooms, Lowell said.
Currie was brought in from out of state to preside over proceedings about the question of Halligan's authority because the Virginia judges were conflicted out. Comey's and James' similar challenges to Halligan's appointment were consolidated for the hearing.
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Halligan's appointment came as part of a series of maneuvers the Trump administration has made to bypass the Senate confirmation process and keep in place the president's preferred appointees in temporary capacities using loopholes in federal vacancy laws. Federal judges in New Jersey, California and Nevada have disqualified appointees in those states, and the New Jersey case is now pending before an appellate court. The issue could be bound for the Supreme Court.
Comey's lawyers argued in court papers that Currie "should reject the government's machinations."
Comey is facing a charge that he made a false statement to Congress and James is facing a bank fraud allegation.
Both have pleaded not guilty and have argued their indictments should be tossed out on the grounds that Halligan was improperly appointed and that they were selectively and vindictively prosecuted.
If Comey's and James' charges were to be thrown out, it is unclear what would happen next. The DOJ could appeal or attempt to bring them again, depending on how the courts rule.
Fox News' Jessica Sonkin, Bill Mears and David Spunt contributed to this report.
