A judge has ordered the Donald Trump-appointed lawyer who led failed prosecutions of two of his political opponents to explain why she is still representing herself as US attorney for the eastern district of Virginia, after another judge ruled she was in the position unlawfully.
In an order filed in the district’s Richmond division on Tuesday, Lindsey Halligan was given seven days to explain why she had engaged in “professional misconduct” by continuing to sign indictments.
Halligan, Trump’s former personal lawyer, was installed by the president in September to lead the prosecutions of two political figures with whom he had frequently clashed: James Comey, the former director of the FBI, and Letitia James, attorney general for the state of New York.
Federal judge Cameron McGowan Currie threw out both cases in November, writing in a scathing opinion that Halligan’s installation was invalid, and “all actions flowing from Ms Halligan’s defective appointment” were “unlawful exercises of executive power and must be set aside”.
The three-page order signed Tuesday by district court judge David Novak, in an unrelated case, is similarly unequivocal.
“While the US has appealed Judge Currie’s opinion and order, no stay has been issued in conjunction with that appeal,” he wrote. “Consequently, it remains the binding precedent in this district and is not subject to being ignored.”
Novak allowed Halligan, formerly the most junior lawyer on Trump’s personal legal team, and with no prosecutorial experience, seven days to file “a pleading explaining the basis for Ms Halligan’s identification of herself as the US Attorney, notwithstanding Judge Currie’s contrary ruling” and “set forth the reasons why this Court should not strike Ms Halligan’s identification of herself as US Attorney from the indictment in this matter”.
Novak ordered Halligan to “further explain why her identification does not constitute a false or misleading statement”, and notes that making such a statement would be professional misconduct requiring disciplinary consequences.
The justice department, which Currie ruled had violated the constitution by appointing Halligan after her predecessor, Erik Siebert, resigned in September under pressure from the Trump administration, did not immediately comment.
The department has appealed against the dismissals of mortgage fraud charges against James, and the indictment for lying to Congress against Comey; it insists Halligan’s appointment was lawful. But as Novak’s order noted, no court or judge has stepped in to reverse or stay Currie’s ruling on the validity of her standing and exercising of power “she did lawfully possess”.
In November, another federal judge, William Fitzpatrick, said he found evidence of “government misconduct” during Comey’s indictment, including a “disturbing pattern of profound investigative missteps”.
Fitzpatrick said problems included “fundamental misstatements of the law” by Halligan to a grand jury, the use of potentially privileged communications in the investigation and unexplained irregularities in the transcript of the grand jury proceedings.
By law, the Senate must confirm an interim US attorney within 120 days of their appointment. Siebert, Currie found, had already served the interim period, thus nullifying Halligan’s appointment.
The Trump administration in December tried to push Halligan towards confirmation, but the process was derailed by Virginia’s two Democratic senators, Tim Kaine and Mark Warner, who refused to return the required “blue slips” necessary to show she had the votes to advance the process beyond committee stage.
