OPINION:
Unforced errors by Justice Department officials could allow James B. Comey and Letitia James to escape accountability for their actions. For now.
On Monday, a federal judge tossed the accusations against the former FBI director and the New York attorney general, asserting the judiciary had veto power over President Donald Trump’s choice of U.S. attorney.
“I agree with Mr. Comey that the Attorney General’s attempt to install Ms. [Lindsey] Halligan as Interim U.S. Attorney for the Eastern District of Virginia was invalid,” wrote District Judge Cameron McGowan Currie.
The president named Ms. Halligan, a lawyer who had earned his trust, to fill the U.S. attorney vacancy in Virginia. Senate dawdling has left her and many other critical presidential nominees hanging. The silver lining in the judge’s technical, and dubious, ruling is that it neither absolves Mr. Comey of culpability for potentially lying to Congress, nor does it clear Ms. James of her alleged mortgage fraud.
Attorney General Pam Bondi is free to assign a special attorney to take over and refile the indictments within the next 6 months. That’s exactly what she should have done from the start. Sending a conventionally appointed attorney to assist Ms. Halligan in presenting these cases to the grand jury would have avoided this unnecessary spectacle.
It should have been obvious that wily Democrats would advance every possible objection, knowing an ideologically allied court would be eager for an excuse — any excuse will do — to exonerate these resistance heroes. Nothing Ms. Halligan could have done would have altered the outcome.
In August, District Judge Matthew W. Brann, an appointee of President Barack Obama, rejected the president’s selection, Alina Habba, to serve as U.S. attorney in New Jersey. Judge David G. Campbell, an appointee of President George W. Bush, refused Sigal Chattah as U.S. attorney in Nevada. A cabal of federal judges in upstate New York nixed John Sarcone as interim U.S. attorney.
The legitimacy of Ms. Habba’s appointment was argued before the Third Circuit U.S. Court of Appeals in October, and there’s no guarantee that the administration’s stance will be upheld. For that to happen, judges would have to agree to cede a power they very much enjoy having back to the executive where it belongs.
Which makes one wonder why Ms. Halligan was ever put in this untenable position. It should have been obvious that a sabotage tactic used with success in four other jurisdictions would also be employed in two of the highest-profile cases the department has right now. Undoubtedly, many career staffers within the Robert F. Kennedy Building are silently cheering this failure.
The Constitution entrusts responsibility for selecting the most senior officers of the United States to the president, subject to the advice and consent of the Senate. It also recognizes the White House’s need to make unilateral recess appointments to keep offices staffed when the upper chamber drags its feet. Ms. Halligan’s appointment raises no constitutional red flags.
Congress granted the unelected branch a limited authority over personnel outside the judicial branch, which Judge Currie and her colleagues are exploiting. Whether this delegation is legitimate is a question the Supreme Court will have to resolve.
Until then, Ms. Bondi should show she’s serious about securing justice in Virginia by having an undisputed, Senate-confirmed attorney restore the charges against Mr. Comey and Ms. James. Perhaps Ms. Bondi could argue the case herself.
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