If at second you don’t succeed, try, try again.
My weekend column on the homepage examines the erratic efforts of Attorney General Pamela Bondi to install Lindsey Halligan as the interim United States attorney for the Eastern District of Virginia (EDVa), after being directed to do so by President Trump. The president was peeved after Erik Siebert, whom Trump had first named the EDVa’s interim U.S. attorney and then nominated to be the district’s full-fledged U.S. attorney, refused to indict Trump enemies James Comey and Letitia James. Siebert was forced out, reportedly despite Bondi’s pleas to keep him.
By law (Section 541), district U.S. attorneys are supposed to be confirmed by the Senate. The provision enabling the attorney general to appoint an interim U.S. attorney for 120 days (Section 546) is a prudent contingency to deal with unavoidable vacancies — e.g., when an incumbent U.S. attorney resigns after the election of a new president from the opposition party. It is not a means of avoiding the Senate confirmation requirement, which is the way the Trump administration has tried to use it for the purpose of installing loyalists who cannot be confirmed, and to avoid the headache of dealing with Democratic senators who can block the nomination of prosecutors the president wants to appoint in their own states.
As I explain in the column, Bondi’s September 20 interim appointment of Halligan is nearly certain to be held invalid. Only a single 120-day interim term is permitted, and that had already been exhausted by Siebert before Halligan was installed.
On October 31, after Comey moved to dismiss the indictment based on Halligan’s lack of statutory eligibility, Bondi belatedly sought to shore up her appointment by naming her a “special attorney” to whom Bondi delegated prosecutorial authority. In this, Bondi was undoubtedly trying to conform to an October 28 court decision that had upheld indictments in Los Angeles federal court despite the statutory ineligibility of Bilal Essayli, Trump’s interim there. (I wrote about that decision, by Judge J. Michael Seabright, here.)
It is not illegal for Bondi to appoint special attorneys and delegate prosecutorial authority to them. It is an abuse of power to do it for the purpose of defeating the Senate confirmation process, but it is incontestable that statutes covering the Justice Department vest broad authority in the AG. (See, e.g., Sections 509 and 510.)
Nevertheless, specifically with respect to Comey and James (whose claim based on Halligan’s illegal appointment has been consolidated with Comey’s), Bondi’s special attorney designation of Halligan on October 31 does not help because it came too late: Comey had been indicted on September 25 and James on October 9.
Bondi tried to fix this by backdating the special attorney designation to September 22 (three days before the Comey indictment and 17 days before the James indictment). As I explain in the column, that fix does not work because the issue is whether Halligan had legitimate prosecutorial authority when she unilaterally presented and signed the two indictments — and she didn’t.
At a hearing this week, Judge Cameron McGowan Currie, the senior Clinton appointee assigned by the Fourth Circuit to decide the disqualification motions, raised another problem: In designating Halligan as a special attorney, Bondi represented that she had reviewed and ratified Halligan’s grand jury presentation in the Comey case; that was not possible — at least as a comprehensive review — because the Justice Department did not prepare a full transcript of the proceeding until November 5. That was five days after Bondi’s representation
(Aside: I assume the AG was not trying to mislead the court. She had no doubt reviewed the portion of the proceeding that had been transcribed earlier — the testimony of the sole witness presented. What was missing was the colloquy between the prosecutor and the grand jury, including legal instructions. Those are often not transcribed. The witness testimony is routinely transcribed because it is often turned over to the defense under discovery rules; the prosecutor’s interaction with the grand jury is recorded but often not transcribed — it’s not discoverable unless there is some colorable allegation of impropriety in the grand jury proceeding.)
Judge Currie further observed that part of the record appeared to be “missing” — the proceedings after 4:28 p.m. That could be significant because the indictment was not returned in court until nearly two and a half hours after that (at 6:47 p.m.). That raises some questions. First, grand jury deliberations tend to be short; unlike a trial jury, the grand jurors (a) don’t need to make a unanimous finding, (b) hear only the government’s side of the case, and (c) apply a low-hurdle burden of proof (probable cause, not beyond a reasonable doubt).
Second, the Comey grand jury refused to indict (i.e., returned a “no true bill”) on one false statement count proposed by Halligan. That clearly resulted in some confusion. A new indictment was prepared that included only the two counts that the grand jury did approve (false statement and obstruction). As a result, there were two documents (one with and one without the no true bill count), and for whatever reason Halligan did not realize she had signed both of them.
With that as background, late yesterday (i.e., on Friday, two days after the hearing before Judge Currie that did not go well for the Justice Department), Bondi made a second attempt to retroactively ratify Halligan’s grand jury presentation in the Comey case. She issued a short order, dated November 14; in it, she represents that she has “reviewed the entirety of the record now available to the government.”
Moreover, as Politico reports, Halligan also made a submission to Judge Currie. In it, she asserts, “There are no missing minutes [from the grand jury proceedings], contrary to the suggestion raised by the court.” Rather, Halligan represents that the two-and-a-half-hour gap in question “consisted solely of the grand jury’s private deliberations, during which no prosecutor, court reporter, or other person may be present.” (Obviously, by “other person,” Halligan means other than the grand jurors.)
As I noted above, that is an extraordinarily long period of time for grand jury deliberations. It is also noteworthy that non-transcribed (and apparently unrecorded) portion of the proceedings happened so late in the day. Grand jury sessions typically end by mid- to late afternoon, and as the magistrate judge to whom the indictment was returned observed, she had never conducted grand jury proceeding at 7 o’clock in the evening.
That said, to repeat what I said in the column:
I am not implying that Halligan did something nefarious; I think she’s just inexperienced in the practice of criminal law. As I’ve explained, grand jury proceedings can get chaotic. That’s why most U.S. attorneys’ offices require new prosecutors to observe a few grand jury presentations, then do a few presentations of seemingly simple cases under the watchful eye of an experienced supervisor, before flying solo.
I don’t think Bondi’s second retroactive ratification of Halligan’s grand jury presentation helps the government any more than did the first one. The problem remains that Halligan was not statutorily qualified at the time of the grand jury presentations. Moreover, the judge is not likely to be impressed by AG Bondi’s ratification of Halligan’s work when Bondi has already once attempted to ratify it without fully reviewing it.
Judge Currie has said she will rule before Thanksgiving (November 27).
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