U.S. District Judge Cameron McGowan Currie of South Carolina today dismissed the indictments of former Federal Bureau of Investigation director James Comey and New York Attorney General Letitia James, ruling that President Donald J. Trump’s appointment of Lindsey Halligan as interim U.S. attorney for the Eastern District of Virginia was invalid. Trump had demanded the indictment of the two. When he was FBI director, Comey had refused to drop an investigation into Trump’s then–national security advisor Mike Flynn, who had lied to the FBI about his conversations with a Russian operative before Trump took office. James had successfully sued Trump, several of his children, and the Trump Organization for fraud, and when the interim U.S. attorney in the Eastern District of Virginia, Erik Seibert, said there was not enough evidence to indict them, Trump forced him out of office and replaced him with Halligan, a former insurance lawyer and Trump aide. Within days, Halligan obtained a grand jury indictment for Comey, charging him with lying to Congress, and another for James, charging her with alleged mortgage fraud. As David Kurtz points out in Talking Points Memo, the indictments were widely understood to be targeted prosecutions of those Trump considered enemies. By law, after a Senate-confirmed U.S. attorney leaves the job, the attorney general can appoint an interim U.S. attorney for 120 days. If the position still has not been filled, the right to make another interim appointment goes to the district court, which has sole authority over the position until the Senate confirms a president’s nominee. This provision prevents a president from making an end run around the Senate’s duty to advise and consent by making consecutive 120-day appointments. The Trump administration attempted to thwart this law. Trump appointed Seibert the interim U.S. attorney for the Eastern District of Virginia on January 21, and as the 120-day deadline approached, he nominated Seibert for the position. The district judges voted unanimously to keep Siebert on as the interim U.S. attorney as his nomination proceeded. But then Siebert declined to prosecute Comey and James, and Trump forced him out, pushing Attorney General Pam Bondi to put Halligan into his place as a new interim appointment. Today, Currie found that Halligan’s appointment violated not only the law, but also the appointment clause of the U.S. Constitution, which requires the president to obtain the “advice and consent of the Senate” for such appointments. That unlawful appointment means that all of Halligan’s actions undertaken as a U.S. attorney are invalid. Because she was the only prosecutor to sign off on the Comey and James prosecutions, they, too, are invalid. Currie wrote that if the indictments were to stand, “the Government could send any private citizen off the street—attorney or not—into the grand jury room to secure an indictment so long as the Attorney General gives her approval after the fact. That cannot be the law.” After the judge’s decision, Comey posted a video saying that while the case mattered to him personally, “it matters most because a message has to be sent that the president of the United States cannot use the Department of Justice to target his political enemies. I don’t care what your politics are. You have to see that as fundamentally un-American and a threat to the rule of law that keeps all of us free.” He called for Americans to “stand up and show the fools who would frighten us, who would divide us, that we’re made of stronger stuff, that we believe in the rule of law, that we believe in the importance of doing things by the law.” Attorney General Bondi said the government will “be taking all available legal action, including an immediate appeal.” Shut down by the courts, Trump is turning to military justice to enforce his will. Since six lawmakers released a video last week reminding servicemembers that they must refuse to carry out unlawful orders, Trump and his loyalists have continued to insist that such a reminder is “SEDITIOUS BEHAVIOR… punishable by DEATH!” Their argument appears to be that by reiterating the law, the lawmakers implied that Trump has issued unlawful orders and therefore that they made troops question their orders and thus directly attacked the chain of command. It’s a convoluted argument, one that administration officials are using to claim that the lawmakers’ reminder that troops must not obey an unlawful order is actually encouragement not to obey lawful orders. Administration officials insist that the lawmakers’ video is an attack on Trump because all of his orders have been lawful, although lawyers, lawmakers, and military personnel have expressed concerns about the legality of the administration’s deadly strikes on civilians in small boats near Venezuela. This morning, the administration escalated its attacks on the lawmakers. The social media account of the “Department of War” posted that the department is investigating Captain Mark Kelly, a retired Navy officer who is now a Democratic senator from Arizona and who participated in the video, after “serious allegations of misconduct.” It suggested that Kelly, a retired Navy officer, could be recalled to active duty “for court-martial proceedings or administrative measures.” Turning to military tribunals harks back to QAnon, a conspiracy theory that took off in 2017. It maintained Trump was leading a fight against an international ring of pedophiles that he would bring to justice through military tribunals. As recently as during the 2024 presidential campaign, Trump called for those he perceives to be his enemies to be prosecuted in military tribunals, saying, for example, that former representative Liz Cheney (R-WY) was “guilty of treason” because she participated in the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol. Trump’s social media page has been reposting QAnon sayings. Attacking Kelly appeals to Trump’s base, but it was impetuous. As law professor John Pfaff noted: “There’s clearly no adult in the room to say ‘wait, maybe don’t go after the charismatic war hero turned literal astronaut who ran [for office] after his wife was a victim of political violence.’” On social media, a post circulated showing a picture of Kelly in his dress uniform juxtaposed with a photograph of Defense Secretary Pete Hegseth guzzling from a bottle; the caption compared Kelly’s “shirt covered with medals” with Hegseth’s “shirt covered with booze.” Kelly punched back. He posted on Facebook: “When I was 22 years old, I commissioned as an Ensign in the United States Navy and swore an oath to the Constitution. I upheld that oath through flight school, multiple deployments on the USS Midway, 39 combat missions in Operation Desert Storm, test pilot school, four space shuttle flights at NASA, and every day since I retired—which I did after my wife Gabby was shot in the head while serving her constituents. “In combat, I had a missile blow up next to my jet and flew through anti-aircraft fire to drop bombs on enemy targets. At NASA, I launched on a rocket, commanded the space shuttle, and was part of the recovery mission that brought home the bodies of my astronaut classmates who died on Columbia. I did all of this in service to this country that I love and has given me so much. “Secretary Hegseth’s tweet is the first I heard of this. I also saw the President’s posts saying I should be arrested, hanged, and put to death. “If this is meant to intimidate me and other members of Congress from doing our jobs and holding this administration accountable, it won’t work. I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.” In a conversation with MS NOW’s Rachel Maddow, Kelly was less formal: “I’ve had a missile blow up next to my airplane,” he told her. “I’ve been…nearly shot down multiple times. I’ve flown a rocket ship into space four times, built by the lowest bidder, and my wife Gabby Giffords, meeting with her constituents, shot in the head. Six people killed around her. A horrific thing. She spent six months in the hospital. We know what political violence is, and we know what causes it, too…. The statements that Donald Trump made… incite others…. He should be careful with his words. But I’m not going to be silenced here…. I’m going to show up for work every day, support the Constitution, do my job, hold this administration accountable, hold this president accountable when he is out of line. That’s the responsibility of every U.S. senator and every member of Congress. He’s not going to silence us.” — |