President Donald Trump’s ouster of his own nominees for U.S. attorney in both of Virginia’s federal court districts became even more controversial — and potentially complicated — Thursday.
First, Trump said in a social media post over the weekend that former FBI director James Comey should be indicted, and on Thursday his Department of Justice asked for such an indictment and a grand jury in Alexandria handed one up.
Second, U.S. Sen. Tim Kaine, D-Va., raised the question about whether that new interim U.S. attorney for the Eastern District — Trump’s former personal attorney, Lindsey Halligan — is even in the job legally.
Kaine appeared to be referring to an article in the National Review, a conservative publication founded by the late William F. Buckley Jr., which this week laid out a legal argument for why the president can’t appoint Halligan to the position. The headline: “Trump DOJ Courting Chaos in Effort to Install New Virginia U.S. Attorney.”
In a social media post Wednesday evening, Kaine linked to that National Review article and asked: “Here’s a question. Can Donald Trump even appoint an interim U.S. Attorney in the Eastern District of Virginia to carry out his retribution spree?”
He repeated that concern Thursday in his regular video call with journalists from around Virginia.
Some background for those just catching up: Trump has made it a practice to appoint his nominees for U.S. attorney as interim U.S. attorneys so that they can take office before they are confirmed by the Senate. That’s prompted concerns that he’s trying to find a way to get around the constitutional requirement of Senate confirmations.
By law, interim U.S. attorneys appointed by the president can only serve 120 days; after that, if the position is still unfilled, it’s up to the federal judges in that district to name an interim U.S. attorney.
Because the Eastern District of Virginia includes the Pentagon and the CIA, it gets a lot of national security-related cases and is therefore considered one of the most important U.S. attorney positions in the country. That’s likely why Trump installed Erik Siebert — a career prosecutor in the Eastern District office and also one with long conservative credentials — as interim U.S. attorney at the start of his administration while waiting until later to name one in the Western District.
Trump later nominated Siebert for the permanent role, but the confirmation process takes a while. When Siebert’s 120-day interim appointment expired, with his confirmation still pending in the Senate, the federal judges in the Eastern District unanimously named him acting U.S. attorney, which extended his term indefinitely.
Late last week, Trump pushed Siebert out — Siebert says he resigned, Trump says he was fired — apparently after Siebert declined to pursue cases against Comey and New York Attorney General Letitia James for “insufficient evidence.” With Siebert out, the administration installed deputy Culpeper County Commonwealth’s Attorney Maggie Cleary as interim U.S. attorney. Her appointment seems only to have lasted about a day. In an extraordinary social media post, Trump directed Attorney General Pam Bondi to pursue criminal cases against both Comey and James and said that he would nominate Halligan to the post. Later, she was named the interim U.S. attorney.
Depending on how you do the counting, that’s two or three interim appointments — Siebert, then Cleary and Halligan. (It’s unclear whether Cleary ever got sworn in; hence part of the confusion.)
Regardless, the National Review — again, a conservative publication — raised the question of whether the president can appoint any new interim U.S. attorneys in that district.
Here’s what the publication said: “Does Trump’s removal of Siebert create a new vacancy, or does it merely continue the vacancy that the Trump administration’s original interim appointment of Siebert temporarily filled? If it is deemed correct simply to continue the existing vacancy, then Halligan is out of luck. Siebert already served 120 days as the interim appointee filling that vacancy. Section 546 does not permit a second 120-day term for Halligan (or any other interim appointee) to fill the same vacancy. Halligan is eligible to serve for 120 days only if Trump’s removal of Siebert after the judges voted to extend his interim term creates a new vacancy.”
The National Review comes down on the side that there’s just one vacancy: the one created after the last Senate-confirmed U.S. attorney in the Eastern District left office. Put another way, Trump has already used up his 120-day interim period with Siebert’s initial appointment; any other interim appointments are now up to the judges in the Eastern District, not the president.
If that reasoning prevailed, then any actions Halligan might take — such as securing an indictment against Comey — run the risk of being ruled invalid. On the other hand, if the president, any president, could use interim appointments to appoint one interim after another, the president could essentially evade constitutional requirements. The National Review warns in italics: “Whoever is right, the blunt fact is that the precedents Trump is creating will be exploited by the next Democratic president.”
In response to a more general question about the U.S. attorney situation in both of Virginia’s federal districts (disclosure: it came from me), Kaine repeated the National Review’s reasoning. “I think there’s a legal question about whether an interim can be installed,” he said. “I don’t think the DOJ can put a new interim in. I think now it’s up to the judges, I believe, to appoint an acting [U.S. attorney] since the interim [appointment] has expired. So the president’s announcement that this individual can be the new interim — I think there are real legal questions as to whether that’s the case.”
It’s possible that this arcane — but important — legal distinction explains a curious procedural development over the weekend. Normally, interim U.S. attorneys are sworn in by a judge in the district. On Sunday, Halligan was sworn in, not by a judge in the Eastern District, but by the attorney general herself. Was that just a matter of convenience? Or was it a way to avoid triggering a question from judges about whether Halligan could be sworn in? It originally looked more like the former but now looks more like the latter.
Seven of the 11 active judges in the Eastern District are Democratic appointees, but even the Republican appointees may be sensitive to the niceties of legal procedure. In any case, Kaine has now put them on notice. Will they take any action? Their counterparts in New Jersey have, in a similar conflict playing out there. The difference is the president isn’t telling that U.S attorney who to prosecute. In Virginia, he is.
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