In late November 2025, a federal judge dismissed major criminal charges brought in the Eastern District of Virginia against former FBI Director James Comey and New York Attorney General Letitia James. The reason had nothing to do with the evidence. It was the prosecutor.
U.S. District Judge Cameron McGowan Currie held that Lindsey Halligan, the interim U.S. attorney who secured both indictments, was unlawfully appointed and therefore lacked authority to prosecute the cases at all. The judge’s opinion makes the point clearly: when a prosecutor has no legal authority to prosecute, every indictment they sign is a nullity.
The problems in the government’s case arose from the interaction between 28 U.S.C. § 546, which governs interim U.S. attorney appointments, and the Federal Vacancies Reform Act. Section 546 allows the Attorney General to appoint an interim U.S. attorney for 120 days. After that, the district court “may appoint” a United States Attorney until the vacancy is filled by a presidential nominee confirmed by the Senate. In the Comey and James cases, Halligan’s appointment exceeded statutory limits and never went through the required processes for court appointment.
This is not an isolated theoretical issue. A recent Congressional Research Service report, “Interim and Acting U.S. Attorneys Raise Open Legal Questions,” catalogues disputes over these appointments and notes at least one trial court ruling that an acting U.S. attorney could not lawfully serve because she was not the “first assistant” at the time the vacancy arose. That decision involved Alina Habba’s attempted tenure as acting U.S. attorney in New Jersey and has spawned broader litigation over the legitimacy of prosecutions she authorized.
The legal theory is simple. Prosecutors exercise the sovereign’s power to bring criminal charges. If the person purporting to exercise that power has not been lawfully appointed under the Appointments Clause and the governing statutes, their actions are void. Defendants have standing to challenge those appointments because unlawful exercise of that power directly affects their liberty.
For federal practitioners, the takeaway is that appointment defects are no longer academic. In a politicized environment where presidents and attorneys general are willing to push the edge of the Vacancies Act and § 546, defense counsel should investigate how the U.S. attorney and any “special attorney” were appointed, particularly in high‑profile or unusual cases. That means pulling appointment letters, checking dates against the 120‑day limit in § 546, and examining whether any “first assistant” was created after the vacancy to game the Vacancies Act.
The Comey and James dismissals were without prejudice, and DOJ has said it will consider refiling under a properly appointed prosecutor. But statutes of limitation may block that path in at least some counts. More broadly, the episode is a reminder that the rule of law cuts both ways. The government demands strict compliance with charging and sentencing statutes from defendants; courts are increasingly willing to demand the same from the Executive when it chooses who gets to stand up in court and say, “The United States.”