Amicus Briefs Published March 10, 2026

United States v. Comey, United States v. James — Unlawful Appointments

U.S. Court of Appeals for the Fourth Circuit

Issue Areas
  • Rule of Law

In This Resource
Background

On Nov. 24, 2025, a federal district court judge in Virginia dismissed the U.S. Department of Justice’s criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, two rivals of President Trump. The judge ruled that the prosecutor who brought the charges, Lindsey Halligan, was unlawfully appointed to her role as the interim U.S. attorney for the Eastern District of Virginia and did not have the authority to bring the charges. U.S. Attorney General Pam Bondi appointed Halligan following the resignation of the district’s top federal prosecutor, Erik Siebert, who resigned after the Trump administration pressured him to charge James.

Siebert was appointed as an interim U.S. attorney on Jan. 21, 2025, shortly after Trump took office. Federal law allows the attorney general’s interim appointees to serve for only 120 days—which, in Siebert’s case, would have expired on May 21. If an interim appointee’s term expires, judges from that district have the power to appoint that individual or a new prosecutor as U.S. attorney until the vacancy is filled.

In the cases against Comey and James, the Justice Department argued to the district court judge that by appointing Halligan after Siebert’s resignation, Bondi restarted the 120-day clock. But that interpretation of federal law would allow the attorney general to continuously appoint interim prosecutors, stripping the courts of their power to check the executive branch and the Senate’s essential role in confirming permanent officeholders, the judge ruled.

On Dec. 19, the Justice Department appealed the ruling that both disqualified Halligan and dismissed charges against Comey and James.

Amicus brief

On March 10, the Society for the Rule of Law and its executive director, Gregg Nunziata, and charter members Donald Ayer, Stuart Gerson, Alan Raul, and Stanley Twardy Jr. filed an amicus brief in the Justice Department’s appeal before the U.S. Court of Appeals for the Fourth Circuit.

The amici, represented by States United, point out in the brief that the Appointments Clause of the U.S. Constitution and federal statutes passed by Congress created a process for U.S. attorneys to be appointed. It is standard practice that such positions are subject to Senate confirmation, though Congress also gave courts the power to check the executive branch for interim appointments. This balance of power ensures that no presidential administration can unilaterally appoint their preferred prosecutors. Bondi’s appointment of Halligan unlawfully circumvented the Senate’s “essential” advice-and-consent role and the check the courts provide, the brief argues.

Additionally, the brief argues that allowing Halligan’s appointment to stand would undermine the rule of law by emboldening the Trump administration to pursue politicized prosecutions of Comey, James, and other perceived rivals of the president.

“The consequences of the administration’s attempted end-run around federal law are clear,” the brief explains. “Its actions threaten the legitimacy of prosecutions, the credibility of U.S. Attorney’s offices, and the fair and impartial administration of justice. The two cases on appeal demonstrate as much. They show a President intent on using the justice system to punish his perceived political adversaries and hostile to experienced prosecutors who would prioritize the integrity of their office, and their sense of fairness, justice, and impartiality, over loyalty to the President.”

The group urges the court to uphold the district court ruling that disqualified Halligan and dismissed the Justice Department’s indictments.

Latest update

Amicus briefs were due on March 10. The government’s reply is due on March 13.

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