Even far-right legal commentator Ed Whelan doesn't think the process by which President Donald Trump got former FBI Director James Comey indicted was above board.
Writing for the National Review on Monday, Whelan — who became infamous for claiming Supreme Court Justice Brett Kavanaugh's sexual assault accuser confused him with someone else — argued that the prosecutor Trump put in charge of the Eastern District of Virginia, former defense lawyer Lindsey Halligan, was not "validly" appointed to that role.
The reason for that is complicated and technical, Whelan wrote — but it matters.
"There are two general authorities for filling a U.S. Attorney vacancy and two avenues under each authority," he explained. "One authority is section 546 of Title 28. Section 546 authorizes the Attorney General to appoint an interim U.S. Attorney for a term of 120 days. Under section 546(d), once the 120-day term expires, 'the district court for such district may appoint a United States attorney to serve until the vacancy is filled.'"
The other way, he said, is subsection 3345(a)(1) of Title 5 of the Vacancies Reform Act, which says the first assistant in the U.S. Attorney's office becomes acting U.S. Attorney unless the president designates someone else — this is how he installed Alina Habba as acting U.S. Attorney in New Jersey despite the district court rejecting her after the 120-day interim cutoff, a matter currently being challenged in court.
"It seems clear that the Trump administration purported to place Halligan in office via an Attorney General appointment under section 546," wrote Whelan, because none of the DOJ statements about her identify her as an "acting" U.S. Attorney.
The problem, he wrote, is that Erik Siebert, the former interim U.S. Attorney Trump fired because he couldn't support charges against Comey, "had already served a full 120-day term as AG-appointed U.S. Attorney."
"Section 546 is best read to mean that the Attorney General cannot make a second interim appointment under section 546 after the first interim appointment has expired," Whelan continued. "Instead, the authority to make an interim appointment then lies with the district court. This has been DOJ’s own longstanding position, set forth in a 1986 Office of Legal Counsel opinion by then-deputy assistant attorney general Samuel Alito" — now one of the most pro-Trump justices on the Supreme Court.
Indeed, he noted, Alito wrote in that opinion that Congress has the power to “place restraints on a statutory authority to make interim appointments” — and that they clearly did so here, in a way that makes Halligan's appointment illegal. This means the district court, not the president, fills the vacancy unless Trump can get Halligan confirmed permanently by the Senate.
Halligan, who has no significant experience as a prosecutor up to this point, has already come under fire by legal experts for bungling key aspects of the case, including filing contradictory documents with the court about whether the federal indictment against Comey was even approved by the grand jury.
