In a pair of extraordinary moves, two federal judges issued court orders Tuesday saying they intend to replace Lindsey Halligan at the helm of a key U.S. attorney’s office in Virginia and threatening disciplinary sanctions for any government lawyer who continues to refer to her as U.S. attorney in legal filings.
The separate actions by Chief Judge M. Hannah Lauck and Judge David J. Novak, who were nominated by presidents Barack Obama and Donald Trump, respectively, signaled a breaking point for the federal bench in the Eastern District of Virginia months after Halligan was disqualified from serving as U.S. attorney in the high-profile office.
Several judges had suggested for weeks that Halligan should resign and sharply questioned her continued use of the U.S. attorney title after an out-of-district judge, Cameron McGowan Currie, ruled in late November that the Trump administration had used an unlawful maneuver to install Halligan.
The orders issued Tuesday marked an escalation, signaling active efforts by the judges to appoint the district’s top federal prosecutor under a federal law that gives them the power to do so after an interim U.S. attorney has been in office for 120 days. That order by Lauck was followed hours later with another one from Novak, who raised the threat of disciplinary action for anyone who describes Halligan as the U.S. attorney in legal filings.
“No matter all of her machinations, Ms. Halligan has no legal basis to represent to this Court that she holds the position. And any such representation going forward can only be described as a false statement made in direct defiance of valid court orders. In short, this charade of Ms. Halligan masquerading as the United States Attorney for this District in direct defiance of binding court orders must come to an end,” Novak wrote.
Lauck directed the court’s clerk to publish the job posting in local newspapers, asking anyone interested to apply by Feb. 10.
Neither Justice Department spokespersons, Halligan, nor a spokesman for the U.S. attorney’s office in Alexandria immediately responded to requests for comment Tuesday.
The Justice Department has appealed Currie’s ruling, but it never requested a stay, meaning that the ruling disqualifying Halligan remains in effect for now. Nonetheless, she has continued to represent herself as the U.S. attorney in court filings.
This month, Novak ordered Halligan to explain why she continues to use the title, suggesting she may be making false or misleading statements. The Justice Department responded defiantly to that order last week, saying Currie’s ruling has no bearing on any other case and that Novak has no authority to strike her name from the signature blocks of Justice Department court filings.
The response, which accuses Novak of making “rudimentary” legal errors and missing “elementary” legal principles, was written in a derisive tone unusual for a government lawyer addressing a federal judge.
Novak said in response that Halligan’s rhetoric was beneath the court’s dignity and more suitable for cable news. He said Halligan’s continued use of the U.S. attorney title after Currie’s ruling was an affront to the legal system.
“The Court cannot tolerate such obstinance, because doing so would undermine the very essence of the Rule of Law,” he wrote. “If the Court were to allow Ms. Halligan and the Department of Justice to pick and choose which orders that they will follow, the same would have to be true for other litigants and our system of justice would crumble.”
Halligan’s nomination for a full term as U.S. attorney is pending in the Senate, but it is unlikely to move forward because it lacks support from Virginia’s two senators — Mark R. Warner and Tim Kaine, both Democrats. A former insurance lawyer who had no prosecutorial experience, Halligan served as a personal lawyer for Trump in the case that special counsel Jack Smith brought against him over his alleged mishandling of classified documents, which was ultimately dismissed.
Typically, U.S. attorneys are appointed by the president and confirmed by the Senate. But federal law empowers attorneys general to name interim appointees when there is no Senate-confirmed pick. Those interim appointments are limited to 120 days, after which the law empowers a district’s federal judges to name a replacement to serve on an acting basis.
In disqualifying Halligan last fall, Currie ruled that Halligan was never legally appointed to the position of interim U.S. attorney because the Trump administration had already named someone to that role — Halligan’s predecessor Erik S. Siebert, who served a full 120-day term.
Siebert was forced out in September after declining to seek charges against two of Trump’s perceived political enemies: former FBI director James B. Comey and New York Attorney General Letitia James. Career prosecutors had recommended against pursuing the two cases because of insufficient evidence of wrongdoing. Trump then named Halligan, who promptly secured indictments against Comey and James, cases that Currie’s ruling later tossed out. This week, Halligan passes her own 120th day in the role.
Justice Department lawyers maintain the statute allows for back-to-back interim appointments. But in addition to Currie, at least five other federal judges have rejected that argument while ruling on challenges to other Trump U.S. attorney appointees. In each case, the judges have said that if the attorney general could legally name a string of interim appointees there would be no need for an administration to put a nominee up for a Senate vote.
Still, judges across the country have been cautious in exercising their authority to name replacements for the president’s picks. When New Jersey’s federal judges named a veteran federal prosecutor to replace then-interim U.S. attorney Alina Habba last summer, the Justice Department fired their pick within hours and undertook a series of legal maneuvers aimed at keeping Habba in the role.
Delaware’s chief federal judge began soliciting applications this fall to replace Trump’s interim pick there, former state GOP chair Julianne Murray. But Murray resigned her post in December before a potential standoff with the administration could come to a head.
Judges in other districts have refused to reappoint Trump’s interim U.S. attorney picks but declined to choose replacements. The chief federal judge in Seattle issued an order last week soliciting applications to potentially appoint a new acting U.S. attorney there, when the interim appointment of Trump’s current pick expires next month.
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