Is The Comey Indictment Even Valid?

Eric Siebert was elevated to interim US Attorney for EDVA on January 25, 2025, under section 546 of Title 28:

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.

Let the reader understand that what the statute says, and what the court’s say the statute says, are sometimes two different things. Because 546 goes on to say:

(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.

The interim can continue to serve after 120 days if the relevant district court appoints him/her to do so. That’s how Siebert was still serving when he quit/Trump fired him.

There is case law that says the appointment power of 546 is per position, not person, because otherwise the AG could avoid 541 (requiring Senate confirmation) and constantly re-appoint someone every four months for up to 8 years (or longer. GHWB carried on, in many ways, from Reagan).

The notable case law here is the matter of Alina Habba. Indictments were issued under her authority after her 120 days had expired. The courts did not affirm her, nor did the Senate. So as if the 121st day, she had no authority in that office; and the authority of the US Attorney is the authority that office wields. No US attorney, no authority.

Lindsey Halligan was appointed under 546(a). She replaced Siebert, who was also appointed under 546(a). If the case law is sound, Halligan was improperly appointed and without authority ab initio. So, the Comey indictment is invalid.

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.

Siebert’s appointment expired, and he was appointed by the court to serve until the vacancy was filled. He was awaiting Senate approval when he resigned. Under the case law, it would appear Trump screwed himself, and now has no choice but to allow the district court to appoint an interim, while he makes an appointment under 541. Challenging the indictment on those grounds could be a contentious issue, though, and Comey may prefer to fight this case directly, winning the benefit of double jeopardy.

Comey could challenge the indictment and force a new USA in EDVA to present charges to a new grand jury. The odds are that a court-appointed interim won’t do that*, and it would take quite a while to get someone through the Senate. The two Senators from Virginia are Tim Kaine and Mark Warner. They could block any appointment as easily as the New Jersey Democratic Senators blocked Habba. So down that path lies a very long delay in prosecution, although it might mean a long time in appeals. That’s also a delay, but it can be an expensive one.

Comey’s other options are to seek dismissal of the indictment as insufficient and groundless (basically; these are not legal terms of art), or let the government present its case, and move for a directed verdict.  The last option would invoke double jeopardy, and end the matter, at some expense to Comey. Jury trials are expensive. The other two options would allow the government to try again.

Which ever way it goes, I think it’s safe to say this case is going nowhere.

*What’s the value of presenting an invalid criminal case to the judge who appointed you?