Dispatch from the Nov. 13 Hearing on Lindsey Halligan’s Appointment

On Nov. 13, U.S. District Judge Cameron McGowan Currie presided at a hearing in Alexandria, Virginia, on whether Attorney General Pam Bondi, on Sept. 22, had properly appointed Lindsey Halligan as interim U.S. attorney for the Eastern District of Virginia. The appointment was being challenged by attorneys for both former FBI Director James Comey, who was indicted Sept. 25, and New York Attorney General Letitia James, who was indicted Oct. 9. Halligan was the sole signatory on each indictment and, as Currie would confirm at the hearing, the sole government attorney to act before each grand jury.

During the hearing, Currie appeared skeptical of both the legality of Halligan’s appointment and of the contention that any error might be harmless, but took the matter under advisement, and promised to try to rule by Thanksgiving.

The dispute hinges on the interpretation of 28 U.S.C. § 546, a law that permits the attorney general to temporarily fill a vacancy in a U.S. attorney post. Since U.S. attorneys are considered “inferior officers” under the Constitution’s appointments clause (article II, section 2, clause 2), the law effectuates a constitutional commandment.

Congress’s general rule, laid out in 28 U.S.C. § 541, is that U.S. attorneys must be appointed by the president, for four-year terms, “with the advice and consent of the Senate.” However, if a U.S. attorney position becomes vacant, § 546 permits the attorney general to appoint an “interim” U.S. attorney for 120 days. If that period expires without the president having managed to persuade the Senate to approve a permanent nominee, § 546(d) says that the “district court” for the judicial district in question “may” appoint a U.S. attorney to serve until the vacancy is filled. (Judge Michael Nachmanoff, the presiding judge in Comey’s case, asked that this issue be heard by a judge outside the district, presumably because the district court judges’ appointment power under § 546 might create an appearance of conflict of interest. Chief Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit then ordered Judge Currie, who sits in the District of South Carolina, to fill that role—not just in Comey’s case but in all other cases in which challenges to Halligan’s appointment might arise.)

Section 546 provides:

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

   (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

   (2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

The challenge in the Comey and James cases is how to apply this language to the facts that led to Halligan’s appointment. In brief, the last Senate-approved U.S. attorney for the Eastern District of Virginia, Jessica Aber, stepped down on Jan. 17. On Jan. 21, acting attorney general James McHenry III appointed Erik Siebert as interim U.S. attorney under § 546. On May 6, President Trump submitted Siebert’s name to the Senate for approval as a permanent appointment.

On May 9—anticipating that Siebert’s 120-day term was about to expire on May 21—the district court for the Eastern District of Virginia appointed Siebert U.S. attorney under 546(d), effective May 21.

In September, however, Siebert reportedly came under pressure as he resisted calls to indict James and voiced concerns about the Comey case. On Sept. 19, Trump said publicly that he wanted Siebert “out.” Siebert resigned later that day.

On Sept. 20, on social media, President Trump urged Attorney General Bondi to appoint Halligan, called for bringing charges against Comey, James, and Rep. Adam Schiff (D-Calif.), and said “we can’t delay any longer.”

On Sept. 22, Bondi appointed Halligan interim U.S. attorney, citing 28 U.S.C. § 546 as authority.

After their indictments, Comey and James each filed motions to dismiss alleging that Halligan’s appointment was improper and that the indictments were void. They argued that after Siebert’s 120-day term expired, only the district court could appoint additional interim U.S. attorneys under § 546.

On Nov. 2, the government responded that nothing in the section forbade the attorney general from making successive interim appointments. In addition, it revealed that three days earlier, on Oct. 31, Bondi had purported to re-appoint Halligan to the position of “Special Attorney,” retroactively to Sept. 22, under a different set of statutes: 28 U.S.C. §§ 509, 510, and 515. She then gave Halligan, as special attorney, authority to handle all civil and criminal proceedings in the Eastern District of Virginia or, if “a court [later] conclude[d]” that that was illegal, to at least handle the Comey and James prosecutions. Bondi also wrote that, “based on [her] review” of the grand jury proceedings in the Comey and James cases, she was “ratify[ing]” all of Halligan “actions before the grand jury and her signature” on each indictment.

On Nov. 5, however, the government conceded that it had not possessed the complete grand jury minutes of the Comey case at the time Bondi said she had reviewed them. The next day, it appeared to acknowledge the same in the James case.

The following account of the hearing is not a transcript. It is based on a reporter’s notes and augmented by consulting the transcript. Only italicized text represents passages verified verbatim with the transcript. Portions of the hearing have been omitted for space or simplification.

Judge Currie took the bench promptly at 10:00 a.m. on Nov. 13. Comey was present, but not James. To Comey’s right, at the first defense counsel table, was Abbe Lowell, who is James’ lead counsel. To his right was former deputy solicitor general Michael Dreeben, who assisted on Comey’s briefs. To Dreeben’s right was Ephraim McDowell, of the Cooley law firm, also representing Comey, who would be arguing for Comey today.

At the first prosecution table, seated from left to right, were counselor to the attorney general Henry Whitaker; Halligan; and Assistant U.S. Attorney N. Tyler Lemons, who has been acting as lead prosecutor in the Comey case.

Judge Currie asked to hear from Comey’s defense attorney first, then James’s, then government counsel. She’d then take short rebuttals from the defense attorneys.

McDowell, for Comey, began. Comey’s case should be dismissed, he said, because it suffers from a fundamental defect: Halligan, the only official who obtained the indictment, had no authority to do so.

Because of the tremendous power U.S. attorneys wield, he continued, they have, since the founding, had to be confirmed by the Senate. Since 1863, Congress has mainly tasked courts with appointing interim U.S. attorneys.

At this early juncture, Currie interrupted with an unexpected question—one that the government could not have been happy to hear her ask.

Are you aware of any evidence of whether a declination memo was prepared in the Comey matter?, she asked.

McDowell said he was not at the moment, but that evidence of that could come out in discovery. He said that the answer did not affect their statutory argument, which he proceeded to outline.

The key provisions are subsections (c)(2) and (d), McDowell said. Subsection (c)(2) limits the interim U.S. attorney’s term to 120 days, and subsection (d) says that, after that term expires, the district court gets the opportunity to appoint.

Under our interpretation, McDowell argued, the attorney general gets the initial 120-day window to make the appointment, at which point the authority shifts to the district court. In contrast, the government’s interpretation would read two terms out of the statute, he said.

It reads out the word “expires,” because the attorney generally could perpetually renew an appointment every 120 days. It also effectively nullifies subsection (d), McDowell continued, because the attorney general could preclude district courts from ever picking interim U.S. attorneys.

Currie interrupted again, with another question that seemed ominous for the government: Doesn’t it also nullify the impact on the Senate?”

It does, McDowell agreed. That was his next critical point, he said, which he characterized as a structural argument. Section 541 creates the default rule: U.S. attorneys must be confirmed by the Senate. Congress passed § 546 as an exception to the default rule, so it must be read narrowly. Under the government’s reading, the default rule—Senate confirmation—which dates back to the founding, would be “eviscerated.” The interim U.S. attorney could serve indefinitely without Senate confirmation. That’s an end-run around the core Senate confirmation requirement.

Judge Currie then interjected: Indefinitely within the president’s four-year term.

McDowell responded that it could actually be longer—theoretically up to eight years. That highlights, he continued, how the government’s position is an evasion of the appointments clause and separation of powers.

Next, McDowell argued that the defendants’ interpretation of § 546, in contrast, facilitates Senate confirmation. It incentivizes the president to put someone through the Senate confirmation process, he said, because the president would likely prefer his own confirmed selection to the district court’s selection. Between one interpretation that facilitates Senate confirmation, and one that actively thwarts it, he said, the court should choose the one that’s consistent with statutory structure, separation of powers, and the appointments clause.

Currie asked McDowell about the harmless error doctrine.

Our first order of response, he said, is that the doctrine does not apply here at all because there’s been an appointments clause violation. He cited Lucia v. Securities and Exchange Commission and Ryder v. United States, in which, he said, the U.S. Supreme Court found the acts of an improperly appointed official void ab initio. That Court also said, he added, that appointments clause remedies should be designed to incentivize appointments clause challenges. Applying harmless error doctrine would disincentivize such challenges.

In any case, McDowell argued, what happened here is not a harmless error for two reasons. First, Halligan was the sole prosecutor in the grand jury room, and she lacked lawful authority. The Federal Rules of Criminal Procedure only allow authorized government attorneys to appear before the grand jury. All the harmless error cases the government cites involve multiple prosecutors being involved and signing the indictment_, which is not the case here.

Currie then asked if McDowell had found any other case where there was just one prosecutor involved—other than Judge Cannon’s ruling in United States v. Trump?

The best other example, McDowell responded, was United States v. Garcia-Andrade, from the Southern District of California. That involved just one prosecutor before the grand jury, and she was not authorized to practice law. That was not harmless error. This case is even more problematic, because we have an appointments clause violation—a constitutional violation.

Judge Currie then asked to hear the defense’s position on the attorney general’s “ratification” of Halligan’s acts of Oct. 31.

First and foremost, McDowell responded, ratification cannot possibly work vis-a-vis Comey because of the statute of limitations. The ratification occurred on Oct. 31, and the statute of limitations for Comey’s charges had expired by then. The ratifying official must have the power to do the relevant act at the time it was done.

As for the argument that they’ve now appointed Halligan in a different way, McDowell continued, the original appointment order cites only § 546. They don’t cite any authority for the idea that you can post hoc, retroactively transform an officer into a different position after the fact.

McDowell also pointed to a footnote in the Lucia case, in which the head of an agency had tried to re-appoint an administrative law judge in a different way. The Court had not found that material. The only thing that matters is whether Halligan had the proper appointment when she stood before the grand jury.

Judge Currie asked McDowell about the government’s arguments about 18 U.S.C. § 3288 (which provides that if an indictment is dismissed after the statute of limitations has run, the government will ordinarily have six additional calendar months to seek a new indictment).

McDowell said he understood the government to be arguing that somehow Bondi could invoke that provision on Oct. 31. But § 3288 applies only when an indictment is dismissed, he continued. On Oct. 31, the indictment was not dismissed. It’s still not. So § 3288 doesn’t come into play.

That law would come into play only if the indictment is dismissed without prejudice, McDowell added, and we think it should be dismissed with prejudice. But it’s not before Your Honor right now.

But you are asking me, Currie said, to agree that the statute of limitations continued to run after indictment because the indictment was void. So that affects the ratification part of the government’s argument, correct?

I don’t think so, McDowell said. The statute of limitations clearly ran out Sept. 30. Section 3288 only comes into play after an indictment is dismissed.

The last thing I want to mention, he said, was why the dismissal should be with prejudice. We think the court should exercise its supervisory powers to dismiss with prejudice in order to deter, not reward, the government’s constitutional violations and its manipulation of the statute of limitations.

It's pretty clear, McDowell argued, that the government was trying to find anyone at the last minute, before the statute of limitations expired, to bring this indictment—perhaps to invoke § 3288 afterwards. That conduct should be deterred, not rewarded.

Other than having the indictment dismissed with prejudice, Currie asked, is there any other relief you seek? Regarding, for instance, the status of Halligan or whether the right to appoint goes back to the district court?

We’ve only sought dismissal with prejudice, he responded. There could be logical ramifications that flow from that, but that’s all we’re seeking.

Currie now invited Abbe Lowell to speak, for defendant James.

I’ll try not to be repetitive, Lowell said. He then argued that the government’s interpretation would violate at least three principles of statutory interpretation.

First, he said, it requires inserting words into the statute. If they want a perpetual ability to reappoint every 119 days, they have to put “his or her” before the word “appointment” in subsection (c)(2). If they want to give the attorney general the same authority as the district court in subsection (d), they need to add the words “or the attorney general” after the phrase “district court.” A court can’t do that.

Second, Lowell said, they’re asking you to ignore basic tools we use to understand statutes. One is the expressio unius principle. (That’s the notion that the expression of one thing implies the exclusion of another.) If Congress wanted to permit both the attorney general and the district court to appoint an interim U.S. attorney after the 120-day term expired, it had to say that.

Last, he continued, the government’s argument would create numerous issues of superfluity (or surplusage). The government’s interpretation basically makes section 541 moot, because the president and attorney general could do this over and over again, never having to invoke section 541.

Also, the government’s interpretation could create a statutory contradiction that could implicate constitutional issues. You could have two different candidates occupying the same seat at the same time. These issues were raised by [Chief] Judge [Matthew] Brann in the case challenging the similar appointment of Alina Habba in New Jersey.

And I’ve listened to your argument before the Third Circuit, Judge Currie interjected.

Waiting eagerly for its conclusion, Lowell responded.

Then Lowell returned to the statute’s structure. Section 546 refers to section 541, he said. They’re in the same chapter. They stand side-by-side. Section 546 is the exception to the default rule described in section 541. If you accept the government’s position, you allow the exception to swallow the rule.

The framework has a brilliant part to it, he continued. The president is given permission for a limited time to get the office moving. Section 541 says find somebody who can be confirmed by the Senate, and § 546 says if you can’t get it done in 120 days, we’re going to find a qualified person by having the courts do it. The government’s interpretation is that the attorney general can take away those protections.

Then, as an illustration of the dangers of such an interpretation, Lowell turned to the facts of his client’s case. Because Erik Siebert—the original interim U.S. attorney—would not go ahead with these cases, he was forced out of office. And the person who came in—who’s sitting to my right, was somebody who said she would do what the president asked. ... That is certainly not a check and balance the statute had in mind.

At Judge Currie’s request, Lowell then discussed a technical question about jurisdiction. But in the course of that discussion, the judge revealed an important fact that had been suspected, but not established as certain, until now.

All the evidence in my review, Currie said—referring to the grand jury minutes—is that Halligan acted alone in the grand jury in both cases. 

The judge asked Lowell if he had anything to add to McDowell’s remarks about attorney general Bondi’s “ratification” order.

Lowell said he did, in part because his client’s situation is slightly different than Comey’s. 

First, the government’s argument, taken to the extreme, would indicate that even Steve Bannon or Elon Musk could have come into the grand jury, without being a government attorney or government anything, and then, afterwards, the attorney general could bless it, could ratify it. They can point to no case that says that.

Second, Lowell continued, the government is trying to apply ratification, which is a concept used in agency law or administrative law, in a criminal context. They’re also trying to apply it where there’s been an appointment clause violation, where no Supreme Court case has ever allowed it. 

When Halligan walked into the grand jury, Lowell continued, she was a private person. She was pretending or purporting to be an interim U.S. attorney. 

Currie asked Lowell to explain the relief he was seeking.

In your opening brief, she said, you asked me to disqualify her from acting further as interim US attorney. In your reply brief, you want an injunction. 

We also moved for dismissal, Lowell said. 

I got that, Currie responds—provoking laughter in the courtroom.

Disqualification and injunction are not terribly different, Lowell said, but there’s a difference in this case. One case you saw involved an administrative law judge. When the court said you did it wrong and the ALJ had no authority, the court said the ALJ could no longer participate even if they did it right the next time. They said the ALJ had already made up his mind.

The U.S. attorney is supposed to be a filter, Lowell continued, as to what is and is not a good case to bring. We believe she cannot continue to participate and supervise on this case. She should be enjoined from participating.

Lowell then asked for Currie to dismiss James’s case with prejudice. He cited the affront to the appointments clause and what he called “the track record.” 

Lowell also argued that the error could not be harmless because, but for Halligan’s involvement, the case would never have been presented. Every career prosecutor realized this was not a proper case, he said. They left or were forced out. That left one person who would do it at the direction of the president in a text (that is, the Sept. 20 social media post) which commanded that what happened happen. I couldn’t make up a better example of a “but for” cause of harm myself.

After Lowell sat down, Henry Whitaker—a former Florida solicitor general—presented the government’s argument. 

The defendants, Whitaker asserted, are elevating what is, at best, a paperwork error to the extraordinary remedy of dismissing duly returned indictments with prejudice.

Section 546 permits the attorney general to appoint a U.S. attorney for the district in which the office is vacant, he said. The office here was vacant, and there’s nothing in the section that suggests that the attorney general is limited to only one appointment. 

On the contrary, he continued, subsection (c) refers to “a person appointed as United States attorney under this section”—using the indefinite article “a”—and the defendants agree that multiple people can be appointed under that section. So the question is whether the attorney general is forced to cram all those multiple appointments into one 120-day period. Subsection (c)(2) refutes that notion.

Halligan is “a person appointed as United States attorney” and may serve until “the expiration of 120 days after appointment by the attorney general under this section.” That last bit—“appointment by the attorney general under this section”—refers to the particular person who was appointed. Not some other person. 

So, Whitaker concluded, the plain language fully supports that the attorney general is entitled to multiple 120-day appointments.

There is likewise no suggestion, Whitaker continued, that once the appointment expires. the district court’s authority to appoint, triggered under subsection (d), is exclusive of the attorney general’s authority. When section 546(d) defines the district court’s appointment authority, it is expressly defined in permissive terms. The district court “may” appoint. There is no incongruity in reading both appointment options to be available. 

Judge Currie then asked about the effect of a 2007 amendment to the law. (The original version of § 546, enacted in 1986, was identical to the current one. In 2006, Congress eliminated the district court’s appointment power and allowed the attorney general’s interim appointment to serve indefinitely. But in 2007, Congress restored the 1986 language.)

It repealed the 2006 structure, Whitaker explained, which had allowed the attorney general to make an indefinite, one-time-only appointment. We agree that she does not get a “fire-and-forget” appointment, where she can appoint somebody and never think about it again.

Congress got rid of that, Whitaker continued, but it did not get rid of the idea that the attorney general is not limited to one 120-day appointment. And the executive branch’s practice (prior to 2006] had been to make successive 120-day appointments. 

Only eight of them, Judge Currie interjects.

Fair enough, Whitaker says. There weren’t a lot of them. Nevertheless, Congress was aware of them. And if it wanted to abolish that practice, it would have been a strange way to do it: to reenact the previous statute that the executive branch had construed to allow that.

In practice, Whitaker added, the way the statute works, the Department of Justice and district court work together to find an appointee who is mutually agreeable. The attorney general appoints someone for a 120-day period and the district court will, in effect, ratify that appointment.

Well, says Currie, we have about 200 years where the judges made the appointments. (She is apparently referring, with exaggeration, to the 123-year stretch between 1863 and 1986, when Congress authorized only district courts to appoint interim U.S. attorneys.)

That’s true, said Whitaker, but he suggested that that fact undermines the defendants’ claim about the government trying to evade Senate confirmation. Congress didn’t have any problem with allowing the district court to have an appointment authority until a nominee is Senate-confirmed. It’s baked into the statute that these appointments can exist a long time. 

Whitaker added that, under the government’s interpretation of the law, the president still has strong incentives to seek Senate confirmation. It’s very useful to have an appointee with the imprimatur of another branch of government and to avoid the uncertainty of having to re-up the appointment every 120 days.

I can assure you, from experience with the attorney general, Whitaker added, that a reappointment is not a rubber stamp. She cares very much about the documents she signs.

That remark seems to send the judge in a new direction. Let’s cut to the chase, Currie said. What about your ratification? Why do you need that?

I don’t think we need that, he responded. But I think the other side’s arguments about it are wrong. Comey says the statute of limitations has run because you’ve not dismissed the indictment. That elevates form over substance. I guess we could just redo the indictment after it gets dismissed and that argument would fall away. 

In any case, he argued, the return of the indictment tolled the statute of limitations. So it didn’t expire. Whitaker then cited United States v. Ojedokun for that proposition.

At this point, Judge Currie asked Whitaker yet another question that sounded ominous for the government: If you’re wrong and both § 546 and the appointments clause are violated, then why wouldn’t you need a ratification? Assume, hypothetically, that both are violated, how does that affect the relief Comey and James are entitled to?

If ratification is valid, he responded, they’re not entitled to dismissal. It’s possible you could enter some kind of prospective relief—

Let me ask you this, Currie interrupts. I was involved in receiving in camera provisions of the grand jury transcripts and tapes, and it became obvious to me that the attorney general could not have reviewed those portions of the transcript of the Comey presentation by Ms. Halligan which preceded and came after her presentation of the witness testimony in the case. There also is a missing section of what occurred between 4:28 and the return of the grand jury indictment, and it appears to me that there was no court reporter present, or if he or she was present, did not take down what happened during that time period. So how does the attorney general ratify and say that she has reviewed the grand jury transcripts when they did not exist in the records of the Justice Department at that time?

It’s true, Whitaker conceded, that we didn’t have the intro and the back end of the grand jury transcripts when we presented that. But that is not what the ratification doctrine requires. 

It may not require it, Currie interrupts, but she's done it. She said that she reviewed it and that on the basis of her review, she ratifies it.

Attorney General Bondi said she reviewed the proceedings, Whitaker responded.

She could not have, Currie parried.

She reviewed the material facts, Whitaker insisted. She had all the witness testimony, and it’s not necessary for a principal to review all this.

Citing the Fourth Circuit’s ruling in Wille v. Lutnick, Whitaker said that all that's necessary to ratify is that the principal know the material facts, as Bondi did.

Whitaker then tried to rebut Lowell’s claim that ratification could not apply in the criminal context. The Supreme Court applied the ratification doctrine in Federal Election Commission v. NRA Political Victory Fund, he said, in a context—certiorari deadlines—that could apply to both civil and criminal cases. He also argued that the Fourth Circuit’s holding in Lutnick would logically apply to both civil and criminal cases.

Currie asked: Didn't Judge Richardson's footnote specifically say that the ratification would not apply as to the office but could only apply as to the acts? ... The first page of your ratification document is ratifying the office.

Whitaker responded that ratification of the indictment was a ratification of acts, which was valid, and that that alone would be sufficient to deny the defendants any retrospective remedy.

Do you have any case saying that?, Currie pressed.

There are many—

In a criminal context?

Not in the criminal context, Whitaker admitted, but the defendants do not have one rejecting the concept in that context either.

Whitaker then addressed Bondi’s retroactive ratification of Halligan’s original appointment. Even if you thought there was a § 546 error here, he said, that does not mean Halligan was not an authorized attorney—an authorized assistant of the attorney general—for purposes of the grand jury rules.

If it were true, Whitaker added, that she had just been a private citizen before the grand jury, as defendants contend, that would lead to odd consequences under the Federal Rules of Criminal Procedure. For instance, Halligan would not be bound by grand jury secrecy rules, which apply to government attorneys, and certainly that’s not how she’s conducted her business.

In any case, Whitaker resumed, Halligan was an authorized assistant despite the fact that the appointment order may have cited the wrong statute. If the appointment had simply said, “I hereby appoint Lindsey Halligan to be the chief prosecutor in the Eastern District of Virginia,” he added, the fact that no statutes were cited would not invalidate the appointment, so long as we could name the authorizing statutes when challenged.

There is little dispute here, Whitaker continued, that the attorney general has broad authority—apart from section 546—to authorize attorneys to conduct criminal proceedings. He cited, for example, 28 U.S.C. §§ 515, 510, 543, 542.

Currie had one more question: Do you believe that U.S. v. Trump, decided by Judge Cannon ... was wrongly decided?

It’s certainly not controlling here, Whitaker said, because she held that various statutes did not authorize appointment of a special counsel. Here we have a number of statutes that were not available in making those arguments before Judge Cannon. For example, you could not have appointed Jack Smith an assistant U.S. attorney under § 542. We could have with Halligan.

What was driving Judge Cannon’s decision, Whitaker continued, was the unique, broad authority that the special counsel possessed free of supervision—an element we don’t have here.

But I will say this, Whitaker concluded. To the extent you can read Judge Cannon's decision as suggesting that the Department of Justice does not have authority under, for example, 28 U.S.C. Section 510, to appoint Main Justice attorneys, which would basically knock out most of the Department of Justice as it existed for the past, like, fifty years, yes, we certainly do disagree with that, and we agree that the attorney general has full authority to make appointments under statutes like 28 U.S.C. Section 510 and 509, and that source of authority would fully support Ms. Halligan being an authorized attorney to the government even though there may have been a paperwork error, a citation error in her appointment order.

Whitaker now turned to harmless error. The issue, he said, was: What effect did it have if the attorney general mis-cited § 546 and gave Halligan a title the defendants say she wasn’t entitled to. He then argued that the grand jurors made their decision based on the facts and the law, following their oaths, and the fact that there may have been a paperwork error had no effect on their decision. 

With Whitaker having completed his argument, Comey’s lawyer, McDowell, rose for his rebuttal. 

The government called this a “paperwork error” or “citation error,” McDowell said. That’s completely incorrect. It was a violation of the appointments clause, which protects individual liberty, especially in the criminal context. 

McDowell also argued that Halligan’s title of “U.S. attorney” may well have carried weight with the grand jury, particularly given the “razor-thin” margin of the vote and the fact that one count was “no true billed”—that is, rejected by the grand jury. 

As to the merits, McDowell said, the government did not give subsection (d)—which transfers appointment authority to the district courts—any real meaning. For 120 years, district courts were the sole appointers of interim U.S. attorneys. In 1986 Congress gave the attorney general a limited up-front role for 120 days and then returned authority to the district court, through subsection (d). 

McDowell stressed that, three days after the 1986 law was adopted, then-deputy assistant attorney general—now Justice—Samuel Alito, then with the Office of Legal Counsel, interpreted subsection (d) exactly as the defendants now do. The attorney general gets 120 days; then the appointment authority shifts to the district court; and the attorney general does not get a second bite at the apple.

Next, McDowell stressed the importance of Congress’s amendment of the law in 2007, reversing its 2006 amendment. The entire purpose of that, he said, evident from the House Report, was to stop the executive branch from bypassing Senate confirmation. 

If the judiciary blesses the government’s current interpretation of the law, McDowell said—which he said was the first time in the forty years of the law’s history that the department had ever advanced that position—the executive branch would never have any reason to go through Senate confirmation again.

After rehearsing and embracing Lowell’s earlier arguments with respect to why ratification does not work here, McDowell closed on the following point. This case is the latest in a pattern in which this administration has tried to evade the appointments clause and other structural safeguards of the constitution. If it prevails here, he said, the executive branch would never need to go through Senate confirmation again for U.S. attorneys. 

Lowell, for James, then delivered his rebuttal argument.

After repeating one of his textual arguments, Lowell stressed that the government had never even addressed the Alito memo, which had, until now, expressed the official view of the Department of Justice.

Even in Trump’s first administration, Lowell suggested, the department had adhered to the traditional interpretation of how §§ 541 and 546 should meld. Trump had obtained Senate confirmation for 85 of the 90-plus U.S. attorneys. The difference, he said, was that this administration has different criteria by which they are going to install people to carry out the directions of the president.

Turning to the ratification issue, Lowell mocked Whitaker’s argument, which had mocked his own, about Halligan having been a “private person” when she appeared before the grand jury. Whitaker had claimed that, if Lowell were right about that, Halligan, as a private person, would not have been bound by the grand jury secrecy obligations of Federal Rule of Criminal Procedure 6(e). But one of the motions we made in this case was that, for whatever reason, in [Halligan’s] interchange with a journalist named Bower, we believe that that’s exactly what she did.

Lowell closed by quoting from the Supreme Court’s Ryder ruling. He told Currie that the cases before her involve, as in Ryder, a “trespass upon the constitutional power of appointment,” and not a mere misapplication of a statute.

Lowell then quoted from Ryder (which partially quotes an earlier ruling): “The clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more: it ‘preserves another aspect of the Constitution's structural integrity by preventing the diffusion of the appointment power.’”

That was Justice Rehnquist, Currie said. 

Yes, Lowell said.

The hearing ended there, with Currie promising to have an order out by Thanksgiving.

* * *

The day after the hearing, the government submitted an “informative notice clarifying the record,” appending a statement from Halligan. In it, Halligan asserted that the gap in the Comey grand jury minutes after 4:28 p.m., noted by Currie, merely reflected a period of about two hours when the grand jury was privately deliberating with no one else present. “I had no interaction whatsoever with any members of the grand jury” during that period, Halligan wrote.

Also appended to that notice was a new order from Attorney General Bondi, dated Nov. 14. In it she stated that she had “reviewed the entirety of the grand jury record now available to the government” and was ratifying—again—Halligan’s actions before the Comey grand jury and her signature on that indictment.