President Donald Trump may have overplayed his hand in seeking legal retribution against his enemies, according legal experts.
New York Attorney General Letitia James was indicted Thursday in the Eastern District of Virginia, where newly installed interim U.S. Attorney Lindsey Halligan also obtained an indictment against former FBI Director James Comey, but legal experts believe both Trump targets may be able to get their cases tossed with thanks to U.S. Supreme Court Justice Samuel Alito.
"High irony," posted journalist Michael Isikoff. "Comey and James may have an ace in the hole to get Halligan removed & their indictments thrown out: A 1983 [Office of Legal Counsel] opinion written by Alito saying that after 120 days with no confirmed U.S. attorney, the court appoints – not the AG or POTUS, as ex-OLC chief [Jack Goldsmith] has pointed out."
Comey's friend and defense attorney, Patrick Fitzgerald, is prepared to argue that Halligan, who had never prosecuted a case before Trump appointed her last month, is not legally serving in her position and brought the case at Trump's direction after he pushed out her predecessor Erik Siebert, who also was serving on an interim basis without Senate confirmation.
"Can the Attorney General make a second interim appointment under section 546 when the first interim appointment has expired?" wrote conservative attorney Ed Whelan. "The most natural reading of section 546 is that the authority to make the interim appointment then lies with the district court. And that’s evidently the position that the Department of Justice itself adopted in a 1986 Office of Legal Counsel opinion written by none other than Samuel Alito."
A subsequent OLC opinion from 1996 cited by Whelan concurs with Alito's interpretation, showing the attorney general may not make successive interim appointments pursuant to section 546, and Alito himself states that Congress limited them to one interim appointment.
"It would appear that Congress intended [to confer on the Attorney1 General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court," Alito wrote. "At most, it could be said that the district court has the primary authority to make subsequent interim appointments, and that the Attorney General may make such appointments only if the district court refuses to make such appointments, or fails to do so within a reasonable period."