The Fourth U.S. Circuit Court of Appeals will hear oral arguments on September 15 in Richmond, Virginia, over the Trump administration's push to revive criminal cases against former FBI Director James Comey and New York Attorney General Letitia James. The Washington Examiner reported Friday that the appellate court consolidated the two cases for the narrow purpose of deciding a single question: whether former interim U.S. Attorney Lindsey Halligan had the legal authority to bring the charges in the first place.
A federal district judge said she did not. Now the Justice Department wants that ruling reversed, and the clock is ticking on both prosecutions.
A grand jury indicted Comey in September 2025 on charges of making a false statement and obstructing Congress during 2020 Senate testimony about the disclosure of sensitive information. One month later, a separate grand jury indicted Letitia James on charges of bank fraud and making false statements to a financial institution in connection with a mortgage on a Norfolk, Virginia, home. Both defendants pleaded not guilty.
Both indictments were brought under Halligan's authority as interim U.S. attorney for the Eastern District of Virginia. But Senior U.S. District Judge Cameron McGowan Currie, a Bill Clinton nominee, found that Halligan had been unlawfully appointed. Currie concluded that the White House stalled on submitting Halligan's official nomination to the Senate for confirmation, and that her continued service violated the federal statute governing interim U.S. attorneys as well as the Constitution's appointments clause.
Currie dismissed both indictments last fall. Her orders, however, left the door open for the Justice Department to seek new charges through a lawfully appointed prosecutor.
That opening may be narrower than it sounds. AP News reported that the statute of limitations on Comey's case expired in late September, just days after Halligan rushed to present the matter to the grand jury. If the original indictment is void, refiling may be legally impossible. Judge Currie herself noted that "if the earlier indictment is void, there is no legitimate peg on which" to extend the deadline, quoting an earlier ruling on the limitations question.
The Eastern District of Virginia has been without a Senate-confirmed U.S. attorney for months. The leadership vacuum has made the appointment question more than academic, it has turned one of the country's busiest federal districts into a revolving door.
Halligan stepped down in January after criticism from U.S. District Judge David Novak. The district's federal judges then appointed James W. Hundley to fill the vacancy, but the Justice Department removed him within hours.
The administration has now named Theo Stamos as first assistant U.S. attorney for the Eastern District. Stamos, a veteran Virginia prosecutor who previously served as Arlington County and Falls Church commonwealth's attorney and later as a top adviser to Virginia Attorney General Jason Miyares, is expected to assume the role of acting U.S. attorney under the Federal Vacancies Reform Act. The Washington Post reported she was expected to begin Monday.
Whether Stamos's appointment resolves the underlying legal dispute remains to be seen. The Fourth Circuit's September 15 hearing will focus squarely on Halligan's authority, not on the merits of the charges against Comey or James. The three-judge panel will not be identified until the morning of oral arguments.
The appeal raises a question with consequences well beyond these two defendants. AP News noted that a 1986 legal memo by then-deputy assistant Attorney General Samuel Alito, now a Supreme Court justice, supports Judge Currie's interpretation that the Justice Department cannot make another temporary appointment after a first 120-day period expires. If the Fourth Circuit agrees, it could set a binding precedent limiting the executive branch's ability to install interim prosecutors without Senate confirmation.
The Trump administration has argued the dismissals should be overturned. The Justice Department's position is that Halligan's appointment was valid and that the cases should proceed. But the administration faces a structural problem of its own making: the White House's delay in sending Halligan's nomination to the Senate is what triggered the legal challenge in the first place.
For conservatives who value constitutional order and the separation of powers, this is not a comfortable case. The charges against Comey and James may be well-founded on the facts, but the process used to bring them has to survive legal scrutiny. An appointments clause violation is not a technicality, it is a constitutional defect. And a prosecution built on a defective foundation does not serve the rule of law, no matter how deserving the defendants may be of accountability.
The Fourth Circuit appeal is not the only legal proceeding hanging over the former FBI director. Comey also faces a separate federal indictment in North Carolina stemming from an Instagram post last summer showing seashells arranged to read "8647." Prosecutors have alleged the post constituted a serious expression of intent to harm President Donald Trump.
U.S. District Judge Louise Flanagan, a George W. Bush nominee, has scheduled the North Carolina trial for October 21 in New Bern, contingent on the case surviving anticipated motions to dismiss. Comey's arraignment in that matter is set for September 30.
The seashell case has drawn skepticism even from some who hold no sympathy for Comey. Recent judicial proceedings in the case have underscored the procedural complexity involved. Whether a photograph of arranged shells on a beach can sustain a federal criminal charge is a question the courts will have to answer on the merits, assuming the case gets that far.
The Fourth Circuit's hearing will not determine guilt or innocence. It will decide something arguably more important for the long-term functioning of federal law enforcement: whether the executive branch can prosecute high-profile cases through an interim appointee whose legal standing was never secured through the constitutionally prescribed process.
If the appellate court upholds the dismissals, the Justice Department could attempt to refile charges under Stamos or a future Senate-confirmed U.S. attorney, though the statute of limitations problem in Comey's case may foreclose that option entirely. If the court reverses, the original indictments could be reinstated and the cases could proceed to trial.
The broader law enforcement landscape continues to shift. The FBI's recent nationwide enforcement operations have demonstrated the administration's willingness to use federal power aggressively. But aggressive enforcement only holds up when the legal foundations are sound.
The administration's legal and political battles have played out across multiple fronts simultaneously. The Comey and James cases represent one of the highest-profile tests of whether the Justice Department's institutional machinery can match its ambitions.
Judge Currie's dismissal orders did not exonerate Comey or James. They did not say the charges lacked merit. They said the prosecutor who brought them had no lawful authority to do so. That distinction matters. And it should matter most to the people who insist, rightly, that the rule of law applies to everyone, including the government itself.
Accountability is not optional. But neither is doing it the right way.
