Staff Reports
The Justice Department went to the Fourth Circuit this week asking three judges to undo a trial judge’s decision that tossed the indictments against James Comey and New York Attorney General Letitia James. The appeal centers on whether Lindsey Halligan — the interim U.S. attorney who presented those cases to grand juries — was lawfully appointed. The oral argument made clear the court sees big legal and constitutional questions, and the outcome will matter far beyond these two cases.
DOJ asks appeals court to save the indictments
At oral argument the department told the panel the grand juries already found probable cause and that shouldn’t be wiped away because of a technical appointment fight. DOJ lawyer Henry C. Whitaker argued that two separate grand juries returned indictments, and courts should give weight to that. For anyone who believes the grand jury is the people’s check on government power, this is an appealing point: don’t let a paperwork dispute erase months of work and testimony.
The government’s pitch — respect the grand jury
The Justice Department stressed the simple idea that grand juries didn’t come back empty. If a grand jury finds probable cause, the government says the case should stand unless some serious constitutional defect exists. Conservatives who care about accountability and equal application of the law should cheer that argument. Tossing indictments on procedural grounds alone looks like letting the powerful off the hook because someone filed the wrong form at the wrong time.
The court’s worry — can the Executive dodge the Senate?
That said, the judges probed a real danger. Chief Judge Albert Diaz warned that accepting the government’s view could let a president chain interim appointments and sidestep the Senate’s advice-and-consent role. That is a fair concern. But if the law allows interim appointments the way DOJ reads it, then Congress — not judges or talking heads — should fix the statute. If you don’t like the result, pass a clearer rule. Don’t cry constitutional crisis one day and shrug the next when Congress can act.
Why the ruling matters and what comes next
This appeal is about more than two indictments. It is about whether grand juries mean anything, whether the Senate’s role will be respected, and whether the Executive Branch can use appointment games to shield political allies. The Fourth Circuit will issue a written decision in the months ahead. If it sides with the government, expect calls for statutory fixes; if it affirms dismissal, expect the Justice Department to consider re‑indicting or asking for higher review. Either way, Republicans should push for clarity: protect grand juries, but also make sure confirmation rules aren’t turned into optional advice.
