The legal decision that ended the criminal cases against the former F.B.I. director James B. Comey and New York’s attorney general, Letitia James, has left the leadership of a key U.S. attorney’s office in Virginia in limbo, leading to frustration among judges in the state.
A federal judge ruled last week that the U.S. attorney for the Eastern District of Virginia, Lindsey Halligan, a Trump loyalist, had been unlawfully appointed as the U.S. attorney by the Trump administration. As a result, the judge ordered the dismissal of the high-profile indictments against Mr. Comey and Ms. James.
But while that decision, by Judge Cameron McGowan Currie, who was brought in from a district in South Carolina to handle the question, found Ms. Halligan’s appointment invalid, it did not expressly order her removed from the office.
The Justice Department has seized on the lack of explicit instruction to keep Ms. Halligan in place for now, eliciting the judges’ irritation. On Thursday morning, one judge removed Ms. Halligan’s name from a court filing and questioned the administration’s argument that she could still hold the job. Days earlier, a magistrate judge hearing a different case had raised similar concerns, according to people familiar with the exchange.
It is the latest clash between the Trump administration and the federal judiciary over the proper way to appoint U.S. attorneys. The Justice Department has used unusual maneuvers to keep its preferred U.S. attorneys in place in districts across the country, including in New Jersey, Nevada and California, over the objections of federal judges there and without the Senate approval typically required of such positions.
At a hearing in Alexandria, Va., before Judge Michael S. Nachmanoff on Thursday involving an immigrant accused of illegally re-entering the country, prosecutors struggled to explain why Ms. Halligan remained listed as the U.S. attorney on court filings.
The defense lawyer at the hearing asked that Ms. Halligan’s name be removed and Judge Nachmanoff, who oversaw the case against Mr. Comey before its dismissal, agreed that there appeared to be a problem.
Judge Nachmanoff told prosecutors that he found it “difficult to reconcile” the fact that Ms. Halligan continued to oversee cases in the district with Judge Currie’s ruling, which “clearly found that Ms. Halligan is disqualified as serving as the interim U.S. attorney or the U.S. attorney at all.”
Though the administration vowed to appeal the Currie decision, it has yet to do so or even seek to pause it while pursuing an appeal.
Judge Nachmanoff pointed to that in asserting, “That decision is binding on the court.” He added that the terms of Judge Currie’s assignment was to rule on the issue “for all matters” in the Eastern District of Virginia. For that reason, he disagreed that Ms. Halligan’s disqualification applied only to the cases of Ms. James and Mr. Comey.
Pressed to explain the Justice Department’s rationale, Nicholas Patterson, the senior prosecutor in court, said that his office had been instructed to continue using Ms. Halligan’s signature in court filings as a U.S. attorney and special attorney. He added that his colleagues had been advised to add to the filings the names of the deputy attorney general, Todd Blanche, and Robert McBride, the top deputy in the Virginia office.
“The reasoning behind that has not been provided, your honor, to the assistant United States attorneys,” Mr. Patterson said.
Judge Nachmanoff decided to delete the U.S. attorney title next to Ms. Halligan’s name in the court filing in the case on Thursday.
“Frankly, it’s unsatisfying to hear that something that appears to be in direct contravention of Judge Currie’s order is on this pleading,” the judge said.
Inside the Justice Department, officials have consulted with the Office of Legal Counsel, which conducts legal analysis for the administration, according to people familiar with the matter, who spoke on the condition of anonymity to describe internal deliberations.
The office has told department officials that because Judge Currie’s order did not require a specific measure to be taken, like removing Ms. Halligan, she could stay even though the judge declared her appointment invalid, the people said.
In other words, the administration’s position was that since the court order did not explicitly remove Ms. Halligan from the job, she could keep it.
A spokesman for the Eastern District of Virginia declined to comment.
Judge Currie used her decision to suggest that the federal judges in Virginia should now act on a part of federal law that says they may make an interim appointment to the U.S. attorney position.
So far, the judges have not made any overt moves to do so, but the hearing before Judge Nachmanoff suggests that could still happen.
Adding to the uncertainty of who is in charge of the U.S. attorney’s office in the Eastern District of Virginia is how the administration might respond if the judges order their own replacement for Ms. Halligan. It is unclear whether the administration might immediately try to fire that person and reinstall Ms. Halligan or another Trump ally.
The Justice Department’s unusual approach comes even as its legal theory about such U.S. attorney appointments took a serious blow this week. A federal appeals court ruled on Monday that the maneuvers used to keep a Trump loyalist as the U.S. attorney in New Jersey were invalid and a violation of federal law.
Devlin Barrett covers the Justice Department and the F.B.I. for The Times.
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