Conservative and Libertarian Legal Experts Warn Trump Administration’s Unlawful Appointment of U.S. Attorney Undermines Rule of Law
Amicus Brief Highlights Congressional Authority Over U.S. Attorney Appointments; Urges Court to Uphold Ruling That Administration Illegally Installed Lindsey Halligan
RICHMOND, Va. — A group of conservative and libertarian legal experts, represented by the States United Democracy Center, filed an amicus brief in United States v. James and United States v. Comey, cases now before the U.S. Court of Appeals for the Fourth Circuit. The brief urges affirmance of the district court’s ruling that the Trump administration unlawfully installed Lindsey Halligan as U.S. Attorney for the Eastern District of Virginia, arguing that the action violated constitutional checks and balances and federal statutes governing U.S. attorney appointments.
The brief explains that the Constitution’s Appointments Clause and federal law require Senate confirmation for U.S. attorneys and strictly limit temporary appointments. According to the experts, the administration ignored those limits when it attempted to unilaterally install Halligan after the window for an interim appointment had already closed. The district court ruled that action unlawful, and amici urge the Fourth Circuit to affirm that decision. The brief warns that allowing administrations to bypass the Senate confirmation process would erode the balance between the executive branch, Congress, and the courts, as set out in the Constitution.
The experts also warn of the broader risks when federal prosecutions are politicized. It explains that putting prosecutors in place without proper legal authority—especially those chosen for loyalty rather than experience—can lead to politically motivated prosecutions and erode public trust in the justice system.
“The Constitution and federal law require Senate confirmation of U.S. attorneys for a reason: to protect the independence of federal prosecutors from political interference,” said Erin Flynn, Senior Counsel at the States United Democracy Center and former attorney at the U.S. Department of Justice. “Bypassing the Senate defeats those safeguards and undermines the fair and impartial administration of justice. As the signatories to this brief explain, federal prosecutors must serve the public—not any one president’s political or personal interests.”
The brief was filed on behalf of the Society for the Rule of Law, a national membership organization of conservative and libertarian lawyers and others who prioritize the defense of the rule of law, the Constitution, and American democracy above their partisan and policy preferences. Individual amici include Executive Director Gregg Nunziata, and charter members Donald Ayer, Stuart Gerson, Alan Raul, and Stanley Twardy, Jr., all of whom previously served in senior roles in Republican administrations, including as Deputy Attorney General, Acting Attorney General, U.S. Attorney, and senior White House counsel.
Key excerpts from the brief include:
“Prosecutors wield enormous power for the public good; they should not be weaponized as vehicles for personal retribution accountable to only the President and not the Constitution they serve. Such weaponization denigrates the office of U.S. Attorney, emboldens politicized prosecutions, and undermines the rule of law. Yet the cases on appeal show a President intent on prosecuting as well as persecuting his perceived political adversaries and settling scores.”
“Moreover, political prosecutions send a message that failure to capitulate to the president’s whims exposes even very powerful people to trumped-up criminal investigation. Even where defendants, as here, may have their cases dismissed pre-trial, or others may be acquitted after trial, simply by bringing the charges, the prosecution discredits political opponents and their political party, imposes legal costs, and seeks to remove them as a political threat while chilling the speech of others.”
“The abuse of the Justice Department’s prosecutorial power is profoundly incompatible with the rule of law, which is fundamental to our freedoms and the foundation of our nation. An increasingly politicized, weaponized, and corrupted justice system threatens our fundamental values: impartial criminal justice, freedom of speech, due process, equal protection of the laws, the right to petition the government, and democracy itself.”
Read a summary of the amicus brief here.
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About the States United Democracy Center
States United is a nonpartisan 501(c)(3) organization dedicated to the rule of law and free, fair, secure elections. We provide direct support to state officials and law enforcement leaders as they uphold the law and our system of checks and balances, protect public safety, defend elections, and preserve our democracy. For more information, visit statesunited.org.