Bharara notes that Comey's motion cites the Appointment Clause and the Vacancies Act.
Vance, who joined Bharara's podcast on his Substack, explained that these are the laws that "govern how and when interium or acting U.S. attorneys can be put into place when there's a vacancy."
"The argument here is that the administration didn't use the right process for making Halligan a United States attorney. You know, the typical route is you get nominated by the president and you get Senate confirmed. And then you get the job," she added on. "And that's not what happens here."
She noted that depending on who one believes, Halligan's predecessor gets fired or resigns, and Halligan is "dropped in."
"One of the provisions of the act allows a president to appoint an interim U.S. attorney for 120 days," Vance continued, explaining that after that time, if someone were not to be confirmed, the local district court gets to decide who is appointed to the post.
"Her predecessor had been put in under that 120-day provision," Vance said. "So, the argument here is that you don't get to do it a second time. Once your time elapses, it's up to the court, and you violated the law. And that means she was never the U.S. attorney, and so this indictment that she signed has no force."
As national security expert Marcy Wheeler summed it up on Bluesky, "Bondi and Todd Blanche knew well that Lindsey Halligan was not lawfully authorized to appear before a grand jury, and yet they sent her anyway."
Bharara explained that the Justice Department doesn't allow a president to hire whomever he wants to take over his DOJ, but "that's what Donald Trump thinks he can do. ... But the freaking Constitution says otherwise. ... Even in the executive branch, the legislative branch has a say."
Sigal Chattah, interim U.S. Attorney for the District of Nevada, and Alina Habba, former interim U.S. Attorney for the District of New Jersey, have both already dealt with this problem in court, cited both Wheeler and Bharara.
Bharara recalled Trump's past comments, saying he likes "acting" officials. It ultimately means "he can do whatever he wants," the former New York prosecutor continued. "And it's not allowed."
Vance called it the "theme" of the Trump administration, "a president who wants to have all the power. In the first administration, she recalled, Trump would drop in an "acting" official and let them stay in the office longer than they were legally allowed to. Occasionally, he would face push-back from a court saying that all of these decisions made by the "acting" official is invalid because they were not Senate confirmed. However, he largely faced little response on Capitol Hill over the matter.
She described it as a "really troubling" point we've reached in the U.S. where Trump is going to press forward and insist that the Supreme Court give him the authority to do this.
