Appeals Court Fight Over Interim Prosecutor Deepens Political Clash at Justice Department

WASHINGTON — A 60-page appellate brief filed this week by the Justice Department has intensified an already volatile dispute over the attempted prosecutions of former F.B.I. Director James Comey and New York Attorney General Letitia James, underscoring mounting political and legal pressure on Attorney General Pam Bondi and allies of President T̄R̄UMP.

The filing, submitted to the U.S. Court of Appeals for the Fourth Circuit, seeks to revive indictments obtained last year by an interim U.S. attorney whose appointment was later ruled unlawful by a federal judge. Legal analysts say the appeal represents a pivotal moment in a broader struggle over prosecutorial authority, Senate confirmation norms and the limits of executive power under the Vacancy Reform Act.

At the center of the dispute is Lindseay Halligan, a former interim U.S. attorney in Virginia who resigned weeks ago after two federal judges questioned the legality of her appointment. In November, U.S. District Judge Catherine Curry ruled that Halligan had been improperly installed under Section 546 of Title 28, which governs temporary U.S. attorney appointments. The statute allows the attorney general to appoint an interim U.S. attorney for up to 120 days if a vacancy arises. After that period, district court judges may select a replacement until the Senate confirms a permanent nominee.

Judge Curry concluded that Halligan’s appointment exceeded those limits, describing the Justice Department’s effort to name successive interim prosecutors as inconsistent with the statute’s structure. In a separate matter, another federal judge, Judge Robert Novak, wrote that Halligan appeared to be “impersonating” a U.S. attorney after her authority had lapsed, a sharply worded rebuke that further complicated the department’s position.

The now-contested indictments involve two high-profile figures who have drawn T̄R̄UMP’S public criticism: Mr. Comey and Ms. James.

Ms. James, who secured a $450 million civil fraud judgment against T̄R̄UMP and members of his family in New York state court, has faced scrutiny from a federal grand jury in Virginia over allegations related to a home purchase. According to people familiar with the matter, prosecutors examined whether she misrepresented information on mortgage documents tied to a modest single-family home.

The grand jury declined to indict. In an unusual move, jurors reportedly returned their “no true bill” in open court, a step some legal scholars interpret as signaling strong skepticism of the case. Prosecutors asked the presiding judge to seal the rejection, but the request was denied.

Mr. Comey, meanwhile, has been under investigation for alleged false statements to Congress dating back several years. The potential charge — a violation of 18 U.S.C. § 1001 — carries a five-year statute of limitations. Halligan secured an indictment shortly before that window was set to close. Defense attorneys challenged the case, arguing that key evidence had been obtained through improper searches of communications between Mr. Comey and his lawyer.

Last month, U.S. District Judge Maria Caratelli ruled that if prosecutors sought to re-indict Mr. Comey, they could not rely on the disputed materials without obtaining a valid subpoena. The ruling cast doubt on the viability of the case, particularly given the statute of limitations constraints.

The Justice Department’s new appellate brief does not directly concede defeat. However, critics contend that by seeking to reinstate Halligan’s authority retroactively — and thus preserve the indictments she obtained — the department is effectively acknowledging the difficulty of securing fresh indictments before a legally appointed prosecutor.

The brief, signed by Henry Whitaker, a former Florida solicitor general and one-time Supreme Court clerk to Justice Clarence Thomas, argues that the district court’s interpretation of Section 546 is overly rigid and undermines executive flexibility in filling prosecutorial vacancies. The filing maintains that the department acted within constitutional bounds and warns that the lower court’s ruling could disrupt federal law enforcement operations nationwide.

Notably absent from the brief is discussion of a recent Third Circuit decision involving a similarly disputed interim appointment in New Jersey. In that case, the appellate court concluded that the executive branch had overstepped its authority, reinforcing the judiciary’s role in selecting interim U.S. attorneys after the 120-day window closes. Legal observers say the omission could become a focal point when defense attorneys respond.

“This is about separation of powers,” said Carl Tobias, a law professor at the University of Richmond who has studied federal judicial appointments. “Congress designed Section 546 to prevent precisely the kind of indefinite interim appointments we’re seeing challenged here. The courts are now being asked to define the boundaries.”

The controversy also touches on the Senate’s longstanding “blue slip” tradition, under which home-state senators can effectively block judicial and prosecutorial nominees by withholding approval. In both Virginia and New Jersey, Democratic senators declined to return blue slips for T̄R̄UMP’S preferred nominees, stalling confirmation efforts and leaving vacancies in place.

Allies of T̄R̄UMP have criticized the practice as partisan obstruction. Senate leaders, including Majority Leader John Thune, have defended it as an institutional safeguard that protects minority rights and state interests.

For Attorney General Bondi, the appellate fight comes amid broader scrutiny of what she has called a “Weaponization Working Group” within the Justice Department — an initiative she announced last year aimed at reviewing investigations involving T̄R̄UMP and his political allies. In a memorandum establishing the group, Bondi pledged to restore “integrity and credibility” to the department, language that critics have described as ironic given the ongoing disputes over prosecutorial authority.

Democratic lawmakers on the House Judiciary Committee, including Representative Jamie Raskin of Maryland, have signaled that they plan to question Bondi about the Comey and James matters during upcoming oversight hearings.

“The American people deserve transparency about whether the Justice Department is being used to settle political scores,” Mr. Raskin said in a statement.

Supporters of the investigations counter that no individual is above the law and that prior officials should not be shielded from scrutiny because of their public profiles.

The Justice Department declined to comment on pending litigation. Attorneys for Ms. James and Mr. Comey did not respond to requests for comment, though both have previously characterized the investigations as politically motivated.

Legal scholars caution that the Fourth Circuit’s ruling could have implications beyond the immediate cases. If the court affirms Judge Curry’s decision, it may curtail the executive branch’s ability to extend interim appointments without Senate confirmation. A reversal, by contrast, could expand presidential discretion in managing prosecutorial vacancies.

“This isn’t just about two indictments,” said Mary McCord, a former senior Justice Department official now at Georgetown Law. “It’s about who controls the machinery of federal prosecution — and under what constitutional limits.”

For now, the fate of the contested indictments rests with the appellate judges. Their decision will determine not only whether the cases against Mr. Comey and Ms. James proceed, but also how future administrations navigate the delicate balance between executive authority and legislative oversight in filling one of the most powerful positions in the federal justice system.