A federal judge in Virginia on Thursday said that Attorney General Pam Bondi couldn’t possibly have reviewed grand jury materials used to justify granting former White House aide Lindsey Halligan special status as a prosecutor to indict former FBI Director James Comey — because some of it doesn’t exist.
U.S. District Judge Cameron McGowan Currie, who was brought to Virginia from South Carolina under a special assignment to consider whether Halligan should be disqualified, appeared skeptical about the way the Justice Department is handling high-profile criminal cases against two of President Donald Trump’s political enemies.
Halligan, who replaced the top prosecutor in the Eastern District of Virginia when he seemed reluctant to fulfill Trump’s promise of revenge, was quick to file criminal charges against Comey and New York Attorney General Letitia James in recent weeks. The DOJ accused Comey of lying to Congress about leaking to journalists and James of committing bank fraud for a second home in Virginia.
At the hearing over the nature of her appointment as U.S. attorney — and whether it was an end run to avoid Senate confirmation — the judge paid particular attention to the step Bondi took of granting Halligan special credentials, weeks after both indictments.
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On Oct. 31, Bondi formally declared that she had decided to “ratify Ms. Halligan’s actions before the grand jury and her signature on the indictments” entirely based on her “review of the grand jury proceedings” in both cases.
Currie found that dubious because the judge had recently ordered the DOJ to turn over all records capturing the way Halligan alone presented the case against Comey before the grand jury that indicted him — and a huge chunk of it was missing.
“It became obvious to me the attorney general could not review the grand jury testimony,” Currie said in court, pointing out that there was no record of what happened on Sept. 25 between 4:28 p.m. and the moment Halligan brought the indictment to a magistrate judge at 6:47 p.m., which the magistrate judge called unusually late.
Halligan’s conduct before the grand jury is the defining issue of the case at the moment, because she took the rare step of presenting the cases herself rather than leaving it to a career assistant U.S. attorney. With her credentials and authority in question, so are the indictments.
Henry Whitaker, the DOJ’s counselor to the attorney general and the only government lawyer to speak at Thursday’s hearing, didn’t offer any explanation as to why there’d be no court reporter present or missing notes.
“She said that she reviewed it,” Currie pressed him.
“She reviewed the proceedings—” Whitaker began before getting cut off mid-sentence.
“She couldn’t,” Currie interrupted.
Two different teams of defense attorneys for Comey and James asked the judge to disqualify Halligan from overseeing the cases and dismiss the indictments permanently.
“When the only attorney prosecuting a case lacks lawful government authority … it’s a fundamental error,” said Ephraim McDowell, one of Comey’s lawyers.
McDowell also warned that the Trump administration flagrantly violated the law governing the appointment of U.S. attorneys, marking yet another way the White House was attempting a power grab to avoid Senate confirmation of a district’s chief prosecutor — and yank away the ability for federal judges to make appointments when a U.S. attorney’s temporary 120-day term expires.
He derided Bondi’s proclamation that also gave Halligan “special attorney” status, saying that the attorney general can’t “post-hoc, retroactively transform an officer.”
Abbe Lowell, the lead lawyer for New York’s attorney general, poked holes in that kind of backdated, after-the-fact justification from the Justice Department, warning that it would open the door for the Trump White House to employ some of its most loyal political aides to start working as prosecutors.
“Even somebody like Steve Bannon or Elon Musk” could show up at a grand jury and get ratified later, Lowell said.
Lowell then addressed Halligan’s appointment directly, telling the judge that “at the time she walked into the grand jury, she was pretending or purporting to be” a prosecutor.
Halligan remained seated when Whitaker took to the podium in her defense.
“The defendant is trying to elevate what is, at best, a paperwork error,” he said.
Whitaker called the notion that Trump would abuse this newfound power to ignore Senate confirmation for U.S. attorneys “kind of fanciful,” but he didn’t mention that the White House has taken a similar approach to keep some loyalist U.S. attorneys in power long after their terms expired, as it did with Alina Habba in New Jersey and Sigal Chattah in Nevada — both of whom have been acting unlawfully without authority, according to rulings by two federal judges. (Those decisions are on appeal.)
During the hearing, which lasted a little more than an hour, Currie repeatedly showed interest in exploring why Bondi would feel the need to sign additional paperwork granting Halligan a special title weeks after getting both indictments if the appointment had been properly done.
Currie promised to issue a ruling by Thanksgiving, which is just two weeks away. If Halligan is booted from the case, both cases could spiral into chaos with little time for prosecutors to prepare before trials are set to start in January.
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