<p>The Trump administration's attempt to revive two criminal prosecutions that were dismissed by a federal judge faced skepticism from a federal appeals court on Tuesday. The judges questioned whether the U.S. attorney who initiated the charges was lawfully appointed.</p>
<p>A three-judge panel on the U.S. Court of Appeals for the Fourth Circuit heard the Department of Justice's (DOJ) appeal regarding the dismissal of prosecutions against former FBI Director James Comey and New York Attorney General Letitia James. The cases were dismissed after a federal district judge determined that former interim U.S. Attorney Lindsey Halligan, who oversaw the cases, was unlawfully appointed.</p>
<p>DOJ lawyer Henry Whitaker argued that Halligan's appointment was valid because she was filling a vacancy and had not been rejected by the Senate, thus qualifying her for the role. He stated, “in no event would dismissal of the indictments be an appropriate remedy for what can be at best described as an error in the title that Miss Halligan used when she presented before the grand juries and signed the indictments.”</p>
<p>Halligan was appointed as interim U.S. attorney for the Eastern District of Virginia in September 2025 by then-Attorney General Pam Bondi, following the resignation of the previous U.S. attorney. However, a federal judge ruled that her appointment occurred after the 120-day period allowed for selecting an interim prosecutor. During the hearing, Whitaker faced intense questioning regarding his argument for reinstating the indictments signed by Halligan. One judge expressed concern that the DOJ's position could effectively bypass the Senate's role in the appointment process.</p>
<p>Another judge raised the possibility that the DOJ could repeatedly appoint a replacement just before the end of a prosecutor's tenure, thereby undermining both the district court and the Senate's advise and consent powers.</p>
<p>Lawyers representing Comey and James urged the panel to uphold the lower court's dismissal of the indictments, focusing their arguments on Halligan's unlawful appointment.</p>
<p>The panel included U.S. Circuit Judges Albert Diaz, Julius Richardson, and Henry Floyd. Two judges appeared skeptical of the DOJ's arguments, but the panel did not indicate how it would rule or provide a timeline for a decision.</p>
<p>The issue of U.S. attorney appointments without Senate approval may reach the Supreme Court, either through an appeal of the Fourth Circuit's ruling or via a separate case from Nevada concerning another disputed U.S. attorney.</p>
<p>The DOJ has filed a petition with the Supreme Court regarding a Ninth Circuit ruling that disqualified Sigal Chattah from leading federal prosecutions in Nevada. Chattah was appointed as interim U.S. attorney for a 120-day period, but two days before the period ended, Bondi designated her as the office's first assistant and claimed that the Federal Vacancies Reform Act automatically made her the acting U.S. attorney. A federal judge ruled that Chattah could not serve as acting U.S. attorney, a decision affirmed by a federal appeals court.</p>
<p>The Supreme Court may decide in the coming months whether to hear the Nevada case concerning the U.S. attorney.</p>