A federal appeals court appeared skeptical Tuesday of the Justice Department’s effort to revive criminal prosecutions against former FBI Director James Comey and New York Attorney General Letitia James.
The cases were dismissed last year after a federal judge concluded that Lindsey Halligan, the prosecutor who secured both indictments, had not been lawfully appointed as interim U.S. attorney for the Eastern District of Virginia.
Arguments before the Richmond-based 4th U.S. Circuit Court of Appeals focused largely on whether then-Attorney General Pam Bondi had the legal authority to appoint Halligan after another interim U.S. attorney had already served in the position. Two members of the three-judge panel raised concerns about the Justice Department’s interpretation of the federal law governing temporary U.S. attorney appointments.
Chief Judge Albert Diaz questioned whether the government’s position could effectively allow the Justice Department to make an unlimited series of interim appointments without obtaining Senate confirmation.
Justice Department attorney Henry Whitaker acknowledged that the government’s interpretation could permit successive temporary appointments but argued that relying indefinitely on interim prosecutors would make little practical sense.
Circuit Judge Henry Floyd also pressed the government about Halligan’s authority at the time she presented the cases to grand juries. The dispute stems from Halligan’s appointment in September 2025 after interim U.S. Attorney Erik Siebert left the position. Siebert had already served a 120-day interim term.
U.S. District Judge Cameron McGowan Currie later ruled that Bondi lacked authority under the relevant statute to make another interim appointment. Because Halligan personally obtained the indictments against both Comey and James, Currie dismissed the cases.
The Justice Department is asking the appeals court to reverse that decision, arguing that the lower court interpreted federal appointment law too narrowly and improperly restricted the attorney general’s authority to fill vacancies in U.S. attorney offices.
Comey’s attorney, Ephraim McDowell, countered that the government’s interpretation could allow presidents to repeatedly install preferred prosecutors without seeking Senate confirmation. Comey had been charged with making false statements to Congress over allegations that he authorized disclosures to the news media. He denied wrongdoing.
James was charged with bank fraud stemming from allegations that she misrepresented how she intended to use a Virginia property. She also denied the allegations. Both Comey and James have argued that the prosecutions were improperly motivated by political retaliation. The Justice Department has defended the cases as legitimate criminal prosecutions.
President Donald Trump has a long history with both defendants. Trump fired Comey as FBI director in 2017 while the FBI was investigating possible connections between Trump’s 2016 campaign and Russia. James later brought a civil fraud lawsuit against Trump and his business in New York. The two prosecutions were brought after Trump publicly called on Bondi in September 2025 to take action against Comey, James and other political adversaries.
Comey is separately facing another federal prosecution involving a social media post showing seashells arranged in the numbers “86 47,” which authorities alleged constituted a threat against Trump. That case remains pending. The appeals court did not immediately rule Tuesday. Its eventual decision will determine whether the Justice Department can resume the dismissed Comey and James prosecutions or whether the lower court’s decision will remain in place.
