One of the most prominent conservative justices of today’s U.S. Supreme Court had some notable thoughts nearly 40 years ago while working as a lawyer inside the Department of Justice (DOJ). These thoughts are now being cited by former FBI Director James Comey in an effort to show that his President Donald Trump-approved criminal prosecution is a legal “nullity” that should be promptly dismissed.
### Legal Critiques Surface Ahead of Motions to Dismiss
In the lead-up to Comey’s expected motions to dismiss the false statement and obstruction case, *Law&Crime* highlighted insights from National Review’s Ed Whelan. Whelan, a former clerk to Justice Antonin Scalia and former principal deputy assistant attorney general at the DOJ’s Office of Legal Counsel (OLC), penned one of the first legal critiques of the charges. His focus was on the appointment of Lindsey Halligan.
Halligan, a former Florida insurance lawyer who also served as Trump’s personal attorney in his Mar-a-Lago classified documents case and in at least one unsuccessful defamation lawsuit against CNN, appeared not to have been lawfully appointed as interim U.S. attorney after the resignation of her interim predecessor Erik Siebert, according to Whelan.
### The “Fatal Legal Flaw”
In two articles published in September, Whelan reasoned that if Halligan was not validly appointed as interim U.S. attorney— which he believed to be the case—this would represent a “fatal legal flaw” in the prosecution. He cited the DOJ’s long-standing view that the U.S. Attorney General “may not make successive interim appointments” of U.S. attorneys under federal statutory law.
This interpretation was originally expressed by none other than Samuel Alito, now a Supreme Court justice, in a 1986 opinion he wrote as an OLC deputy assistant attorney general. In that memorandum, Alito clarified that Congress “can place restraints on a statutory authority to make interim appointments.” He explained:
> “Thus, it would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court.
> At most, it could be said that the district court has the primary authority to make subsequent interim appointments, and that the Attorney General may make such appointments only if the district court refuses to make such appointments, or fails to do so within a reasonable period.”
### Comey’s Legal Team Cites Alito’s 1986 Opinion
Comey’s lawyers have now cited the very same Alito OLC opinion. According to their court filing:
> “It was not until 1986 that Congress for the first time gave the Attorney General a role in appointing interim U.S. Attorneys, adopting a version of the statute that mirrors the language as it exists today. Just three days after Congress enacted the 1986 law, the Office of Legal Counsel (OLC) within the DOJ issued a memorandum, authored by then-Deputy Assistant Attorney General Samuel Alito, interpreting the provision in precisely the same manner as Mr. Comey here.
> Specifically, OLC concluded that while a ‘vacancy exists when the 120-day period expires under the amended section 546 and the President has either not made an appointment or the appointment has not been confirmed, it does not follow that the Attorney General may make another appointment pursuant to 28 U.S.C. 546(a) after the expiration of the 120-day period.’
> OLC reasoned that ‘[t]he statutory plan discloses a Congressional purpose that after the expiration of the 120-day period further interim appointments are to be made by the court rather than by the Attorney General.’ That ‘contemporaneous’ Executive Branch interpretation provides persuasive evidence of statutory meaning.”
For Comey and his legal team, Alito’s words represent the executive branch’s “longstanding interpretation dating back to the original enactment of the provision at issue.” This means that Halligan’s appointment runs “directly contrary to the statutory text, structure, history, and purpose” of the law.
### Possible Consequences of an Unlawful Appointment
“By purporting to appoint Ms. Halligan under Section 546, the President and Attorney General have disregarded that considered judgment and sought to reinstate a regime that Congress expressly repudiated,” the filing states. It also notes that Halligan was the only known prosecutor to present the case to a grand jury and sign the indictment just days before the statute of limitations expired.
### Questioning Qualifications and Appointment Circumstances
Beyond questions about whether the former Trump defense attorney with no prosecutorial experience was lawfully appointed, the circumstances surrounding Halligan’s installation have already raised concerns about her qualifications for the role.
A widely circulated story by *Lawfare’s* Anna Bower took that scrutiny even further, diving deeper into the implications of Halligan’s appointment and role in the case.
—
**Love true crime?** Sign up for our newsletter, *The Law&Crime Docket*, to get the latest real-life crime stories delivered right to your inbox.
https://lawandcrime.com/high-profile/comey-hopes-samuel-alitos-persuasive-thoughts-from-1986-can-bring-swift-end-to-trump-approved-criminal-prosecution/