James Comey could get Trump's prosecutor outright disqualified from office: expert

Former FBI Director James Comey has lots of different ways he can defeat the criminal indictment against him for false statements and obstruction of justice, former U.S. Attorney Barbara McQuade told MSNBC's Melissa Murray on Wednesday — but one of the most scorched-earth methods might be getting Trump's federal prosecutor in charge of the case disqualified.

The prosecutor, Trump's former defense lawyer Lindsey Halligan, was appointed to oversee the Eastern District of Virginia after her predecessor, also a hand-picked Trump appointee, determined there was insufficient evidence to prosecute Comey for statements he made during Senate testimony. Halligan has moved forward per Trump's wishes, but has faced repeated setbacks as she has no significant prosecutorial experience, had to be coached through working with the grand jury, and didn't file the correct charging documents.

"Jim Comey has said that he is ready for trial. He's ready to go to trial with this," said Murray. "What do you think the next move is? Is this even going to get to a trial, or will there be something else before that?"

"I don't know," admitted McQuade. "You know, I think Jim Comey's got to think strategically here. If he's innocent, he might want to just assert his right to a speedy trial, say, let's go and dare Lindsey Halligan to get ready for this trial and prove him guilty beyond a reasonable doubt. I imagine, though, he's going to at least have some conversations with his lawyer, Patrick Fitzgerald, who's an outstanding lawyer, about filing motions for either selective prosecution, a violation of due process rights to a fair trial, or even challenging the legitimacy of the appointment of Lindsey Halligan."

With respect to that last option, she added, "It appears to violate all of the various ways a U.S. attorney can be appointed ... under the Vacancy Reform Act, and so maybe they want to go after one of those bases to get the case dismissed. But I could imagine Jim Comey saying, 'You know what? Let's go to trial because I am confident I'm going to prevail,' and it will happen quickly and be over. And then he would be fully exonerated and cleared. So that's a strategic decision he's going to have to make."

If Comey decided to challenge Halligan's appointment, it would not be the first time a Trump prosecutor's legitimacy has been challenged in court by defendants.

Earlier this year, a federal judge ruled that Alina Habba, another former Trump defense lawyer appointed through questionable procedures to head up federal prosecutions in New Jersey, was unlawfully appointed. A similar ruling came down this week against Sigal Chattah, Trump's choice for acting U.S. Attorney in Nevada.

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