Alexandria, Va. — Attorneys for former FBI Director James Comey and New York Attorney General Letitia James will be arguing in court Thursday that the federal indictments against their clients should be dismissed because Lindsey Halligan’s appointment as interim U.S. attorney in Virginia is unlawful.

The court decided to consolidate the arguments for dismissal soon after James’ arraignment. Both Comey and James have stated that Halligan’s appointment as interim U.S. attorney was invalid and unconstitutional.

She was named to the post days after Erik Siebert resigned as acting U.S. attorney for the Eastern District of Virginia amid pressure from President Trump to bring prosecutions against his political foes. Just before Siebert’s resignation, sources had told CBS News that prosecutors from the district were concerned he could be removed for not prosecuting James.

Halligan, a former Trump defense lawyer who later joined him in his second administration, was tapped as interim U.S. attorney in September after serving as a senior aide to Mr. Trump in the White House. Halligan, who was previously an insurance lawyer, took the helm of the U.S. Attorney’s Office in Alexandria with no prosecutorial experience. Mr. Trump nominated her for U.S. attorney in late September.

Comey was indicted in September on one count of making false statements to Congress and one count of obstruction of justice, related to Senate testimony he gave five years ago. Comey pleaded not guilty to both counts.

James was indicted last month on one count of bank fraud and one count of making false statements to a financial institution and pleaded not guilty. The Justice Department alleges James bought a house in Norfolk, Virginia, in 2020 with a mortgage that required her to use it as a second home, but instead ultimately rented it to a family and used it as an investment property. The department accuses James of misrepresenting how the house would be used, so she could obtain a lower interest rate. 

Sources told CBS News that Halligan presented evidence to the Comey and James grand juries alone, rather than with the line prosecutors who had worked on the cases. She was also the only attorney in the U.S. Attorney’s Office for the Eastern District of Virginia to sign the indictments. After Halligan became that district’s interim U.S. attorney, several prosecutors left the office or were fired.

Since the indictments, lawyers from U.S. Attorneys’ Offices in North Carolina and Missouri have joined Halligan in working on the cases involving Comey and James, respectively.

Attorney General Pam Bondi has used a federal law governing U.S. attorney vacancies to appoint Halligan and several others around the country as the top federal prosecutors in their respective offices. The law limits the term for an interim U.S. attorney to 120 days, after which the district court in that area can either extend that official’s term or appoint a new U.S. attorney to serve until the vacancy is filled.

In the case of the Eastern District of Virginia, Bondi tapped Siebert as interim U.S. attorney in January and, ahead of the 120-day deadline in May, judges of that region voted to keep Siebert in the post. Siebert had also been nominated for the permanent position. 

He left the position in September, and though Siebert said he resigned, Mr. Trump wrote on social media, in a Sept. 20 post directed at Bondi, that he had ousted Siebert and praised Halligan as a “really good lawyer.” Halligan was sworn in as interim U.S. attorney days later.

Halligan and the 120-day term for interim U.S. attorneys

At the heart of the argument is the 120-day term for interim U.S. attorneys appointed by the attorney general. Comey’s lawyers said the clock for a temporary U.S. attorney in Virginia has already wound down, and they assert that the law sets a total 120-day time limit that is tied to the attorney general’s initial appointment of an interim U.S. attorney — which would be Bondi’s selection of Siebert in January.

“The period does not start anew once the 120-day period expires or if a substitute interim U.S. Attorney is appointed before the 120-day period expires,” they wrote.

Allowing the attorney general to make back-to-back sequential appointments would effectively allow the president to circumvent Senate confirmation and the district court’s role, Comey’s lawyers wrote in court papers.

Halligan “was defectively appointed to her office as an interim U.S. Attorney,” they said. Arguing that “no properly appointed” official from the executive branch had obtained the indictment against Comey, his lawyers said “the indictment is equally a nullity” and should be dismissed.

James’ attorney, Abbe Lowell, is seeking a court order that would block Halligan from supervising the prosecution of James’ case and from exercising any other duties as interim U.S. attorney. 

Halligan, he wrote, “had no authority to litigate this case on behalf of the United States.”

“[B]ecause this indictment would not have been sought or obtained absent Ms. Halligan’s unlawful appointment … the indictment’s flaws cannot be brushed aside as harmless error,” Lowell wrote. “This Court must reject the Executive Branch’s brazen attempt to sidestep the constitutional and statutory limitations on the appointment of U.S. Attorneys.”

The Justice Department’s arguments

The Justice Department responded to the motions from Comey and James by arguing that Mr. Trump and Bondi have the authority to appoint an interim U.S. attorney after a previous interim pick has already served the 120-day maximum. 

The department said that even if the judge overseeing the challenges sides with Comey and James, Bondi has retroactively appointed Halligan as special attorney in the Eastern District of Virginia, which would allow her to conduct criminal and civil proceedings in the district.

The Justice Department submitted to the court an order from Bondi, dated Oct. 31, in which she says she is ratifying Halligan’s actions before the grand juries and her signature on indictments returned by the grand jury in both cases, and appoints her special attorney for the Justice Department as of Sept. 22. 

“Even were Ms. Halligan’s appointment invalid, the motions to dismiss should be denied,” Justice Department attorneys wrote. “While Defendants challenge Ms. Halligan’s appointment as interim U.S. Attorney, the actions they challenge do not hinge on her validly holding that particular office.” The Justice Department also argued that “any government attorney can present a case to a grand jury or sign an indictment.”

“At minimum, any dismissal should be without prejudice to permit the government to seek new indictments now that the Attorney General has cured any arguable flaw in Ms. Halligan’s authority to prosecute,” the Justice Department continued.

They also argued that each appointment to interim U.S. attorney triggers its own 120-day term.

How courts have ruled so far on legality of other temporary U.S. attorney appointments in Trump’s second term

But the Trump administration has run into issues in other courts that have considered the legality of temporary U.S. attorney appointments during Mr. Trump’s second term. In cases involving Alina Habba, the top federal prosecutor in New Jersey, and Sigal Chattah, Nevada’s acting U.S. attorney, two judges each ruled they are serving unlawfully. A federal judge in California also issued a similar ruling for the acting U.S. attorney in the Central District of California, Bill Essayli.

In the challenge to Habba’s appointment, U.S. District Judge Matthew Brann wrote that under federal law, the attorney general can make appointments of different people to serve as interim U.S. attorneys, “but for an aggregate term of 120 days.”

The Justice Department has appealed the decisions involving Habba and Chattah.

Federal judge from South Carolina to preside over Thursday’s arguments

U.S. District Judge Cameron Currie from South Carolina will preside over Thursday’s arguments. She was brought into the case because all of the federal judges in the Eastern District of Virginia have a conflict of interest in hearing the arguments because of Halligan’s role as head of the prosecutor’s office in the district.

Currie was appointed to the federal bench by President Bill Clinton in 1994.

Earlier this month, Currie said in an order that a transcript she requested from prosecutors from Halligan’s presentation to the grand jury that voted to indict Comey was incomplete, and “fails to include remarks made by the indictment signer both before and after the testimony of the sole witness, which remarks were referenced by the indictment signer during the witness’s testimony.” 

After the grand jury indictment was returned, a federal magistrate judge expressed confusion and surprise after she received two versions of the indictment.

A majority of the grand jury that reviewed the Comey matter voted not to charge him with one of the three counts presented by prosecutors, according to a form that was signed by the grand jury’s foreperson and filed in court. He was indicted on two other counts — making false statements to Congress and obstructing a congressional proceeding — after 14 of 23 jurors voted in favor of them, the foreperson told the judge. 

But two versions of the indictment were published on the case docket: one with the dropped third count, and one without. The transcript reveals why this occurred. 

“So this has never happened before. I’ve been handed two documents that are in the Mr. Comey case that are inconsistent with one another,” the magistrate judge said to Halligan. “There seems to be a discrepancy. They’re both signed by the (grand jury) foreperson.”