All of which brings us to yesterday\u2019s Fourth Circuit hearing, where DOJ lawyer Henry Whitaker \u201cat times faced distinct skepticism,\u201d per POLITICO<\/a>. Chief Judge Albert Diaz, an Obama appointee, spelled out where the government\u2019s reading of the statute leads:<\/p>\n I understand that you\u2019re representing that this administration has no incentive to engage in a cascade or carousel of interim appointees. But under your reading of the statute, that is the logical conclusion, that an executive could \u2026 just continue with a succession of appointments, thereby essentially cutting off both the court, the district court, and the Senate\u2019s advice and consent power. Isn\u2019t that true?<\/p>\n<\/blockquote>\n Whitaker tried the no-incentive line again. Diaz cut him off, \u201cYou\u2019re saying you have no incentive, but under your reading of the statute, a nefarious, ne\u2019er-do-well executive could do exactly that, right?\u201d And Whitaker was forced to agree.<\/p>\n That\u2019s a big concession. Statutory interpretation doesn\u2019t care about promises of good behavior, least of all from an administration whose interim U.S. attorney saga has included a judge demanding that a fake U.S. attorney explain why she was still pretending to be U.S. attorney<\/a>. \u201cTrust us\u201d is a weak argument from these people on everything but on this particular subject especially.<\/p>\n Judge Henry Floyd, another Obama appointee, brought up<\/a> the government\u2019s most awkward precedent. \u201cHow would you then distinguish United States v. Trump when Judge Cannon found that Mr. Smith, whatever his name was, wasn\u2019t lawfully appointed?\u201d he asked. Whitaker\u2019s answer was that different appointment authorities apply, and that the DOJ could have<\/em> appointed Halligan to bring these prosecutions under a different statute. Diaz wasn\u2019t buying it: \u201cTo put it bluntly, would have, could have, should have. That didn\u2019t happen.\u201d The same appointments argument that ended the case against the president is now the problem for the cases his DOJ wants back.<\/p>\n The Trump appointee on the panel, Judge Julius Richardson, was more helpful to Whitaker, suggesting that \u201cif an executive were to abuse this power, Congress has the full authority to revise the statute to read in a way that reaches a better policy result.\u201d<\/p>\n Which is technically true, and also cold comfort. Richardson\u2019s \u201cCongress can fix it\u201d is the same theory other circuit courts have already thrown out. The Third Circuit rejected the administration\u2019s attempt to keep Alina Habba in charge in New Jersey through an elaborate game of musical chairs with interim appointments,<\/a> and even Trump\u2019s own judges agree Sigal Chattah isn\u2019t a real U.S. attorney<\/a>. The DOJ is asking the Fourth Circuit to be the first appellate court to buy the argument, in front of a panel whose chief judge got the government\u2019s own lawyer to admit the theory would let a \u201cnefarious, ne\u2019er-do-well executive\u201d appoint interim prosecutors forever.<\/p>\n Well\u2026 things don\u2019t look great for Lindsey Halligan\u2019s comeback tour.<\/p>\n Earlier: <\/strong>Lindsey Halligan Manages To Lose Two Cases At Once, Which Is Honestly Impressive<\/a> Kathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/p>\n \n The post Lindsey Halligan\u2019s Comeback Tour Hits A Skeptical Fourth Circuit Panel<\/a> appeared first on Above the Law<\/a>.<\/p>\n <\/em><\/strong><\/p>\n Nearly a year after a federal judge ruled that Lindsey Halligan was never lawfully the U.S. attorney for the Eastern District of Virginia, and threw out the political prosecutions of former FBI Director James Comey and New York Attorney General Letitia James along with her, the Trump administration went to the Fourth Circuit on Tuesday to argue that actually, she was. And the case for reviving those prosecutions depends on the court agreeing.<\/p>\n It did not go smoothly.<\/p>\n A quick refresher, because the Halligan era packed a lot into a few months. Halligan, a former Trump personal lawyer and insurance lawyer with zero prosecutorial experience, was installed as interim U.S. attorney in September 2025 after her predecessor was pushed out, and within days had secured indictments against Comey and James<\/a>. Then came her day in court<\/a>, which ended with Senior U.S. District Judge Cameron McGowan Currie finding that the 120-day clock for an attorney general-appointed interim U.S. attorney had already run out on Halligan\u2019s predecessor, Erik Siebert, so Pam Bondi had no power to appoint anyone else. That meant Halligan managed to lose two cases at once<\/a>. Currie warned that the government\u2019s theory would let it \u201csend any private citizen off the street \u2014 attorney or not \u2014 into the grand jury room to secure an indictment.\u201d The dismissals were without prejudice, but the DOJ\u2019s attempts to start over went nowhere: grand juries declined to re-indict James<\/a>, and Currie found the statute of limitations had already run on Comey (the DOJ disagrees). Halligan herself kept acting like the U.S. attorney for months after she was disqualified, until Eastern District judges forced the issue and a brutal, humiliating benchslap put an end to the Lindsey Halligan experiment<\/a>.<\/p>\n All of which brings us to yesterday\u2019s Fourth Circuit hearing, where DOJ lawyer Henry Whitaker \u201cat times faced distinct skepticism,\u201d per POLITICO<\/a>. Chief Judge Albert Diaz, an Obama appointee, spelled out where the government\u2019s reading of the statute leads:<\/p>\n I understand that you\u2019re representing that this administration has no incentive to engage in a cascade or carousel of interim appointees. But under your reading of the statute, that is the logical conclusion, that an executive could \u2026 just continue with a succession of appointments, thereby essentially cutting off both the court, the district court, and the Senate\u2019s advice and consent power. Isn\u2019t that true?<\/p>\n<\/blockquote>\n Whitaker tried the no-incentive line again. Diaz cut him off, \u201cYou\u2019re saying you have no incentive, but under your reading of the statute, a nefarious, ne\u2019er-do-well executive could do exactly that, right?\u201d And Whitaker was forced to agree.<\/p>\n That\u2019s a big concession. Statutory interpretation doesn\u2019t care about promises of good behavior, least of all from an administration whose interim U.S. attorney saga has included a judge demanding that a fake U.S. attorney explain why she was still pretending to be U.S. attorney<\/a>. \u201cTrust us\u201d is a weak argument from these people on everything but on this particular subject especially.<\/p>\n Judge Henry Floyd, another Obama appointee, brought up<\/a> the government\u2019s most awkward precedent. \u201cHow would you then distinguish United States v. Trump when Judge Cannon found that Mr. Smith, whatever his name was, wasn\u2019t lawfully appointed?\u201d he asked. Whitaker\u2019s answer was that different appointment authorities apply, and that the DOJ could have<\/em> appointed Halligan to bring these prosecutions under a different statute. Diaz wasn\u2019t buying it: \u201cTo put it bluntly, would have, could have, should have. That didn\u2019t happen.\u201d The same appointments argument that ended the case against the president is now the problem for the cases his DOJ wants back.<\/p>\n The Trump appointee on the panel, Judge Julius Richardson, was more helpful to Whitaker, suggesting that \u201cif an executive were to abuse this power, Congress has the full authority to revise the statute to read in a way that reaches a better policy result.\u201d<\/p>\n Which is technically true, and also cold comfort. Richardson\u2019s \u201cCongress can fix it\u201d is the same theory other circuit courts have already thrown out. The Third Circuit rejected the administration\u2019s attempt to keep Alina Habba in charge in New Jersey through an elaborate game of musical chairs with interim appointments,<\/a> and even Trump\u2019s own judges agree Sigal Chattah isn\u2019t a real U.S. attorney<\/a>. The DOJ is asking the Fourth Circuit to be the first appellate court to buy the argument, in front of a panel whose chief judge got the government\u2019s own lawyer to admit the theory would let a \u201cnefarious, ne\u2019er-do-well executive\u201d appoint interim prosecutors forever.<\/p>\n Well\u2026 things don\u2019t look great for Lindsey Halligan\u2019s comeback tour.<\/p>\n Earlier: <\/strong>Lindsey Halligan Manages To Lose Two Cases At Once, Which Is Honestly Impressive<\/a> Nearly a year after a federal judge ruled that Lindsey Halligan was never lawfully the U.S. attorney for the Eastern District of Virginia, and threw out the political prosecutions of former FBI Director James Comey and New York Attorney General Letitia James along with her, the Trump administration went to the Fourth Circuit on Tuesday […]<\/p>\n","protected":false},"author":3,"featured_media":163036,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","footnotes":""},"categories":[16],"tags":[],"class_list":["post-163072","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/163072","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=163072"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/163072\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/163036"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=163072"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=163072"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=163072"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
Brutal, Humiliating Benchslap Puts An End To Lindsey Halligan Experiment<\/a>
DOJ Adds Another No Bill To Its Trophy Case<\/a>
Lindsey Halligan Says Her \u2018I\u2019m An Illegal Appointment\u2019 T-Shirt Has People Asking A Lot Of Questions Already Answered By Her Shirt<\/a><\/p>\n
\n![\"\"](\"https:\/\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2021\/06\/IMG_5243-1-scaled-e1623338814705-620x568.jpg\" "\\"\\"")
<\/p>\n![\"\"](\"https:\/\/abovethelaw.com\/wp-content\/uploads\/sites\/4\/2025\/10\/lindsey-halligan-GettyImages-2237057834-300x200.jpg\" "\\"\\"")
\n
Brutal, Humiliating Benchslap Puts An End To Lindsey Halligan Experiment<\/a>
DOJ Adds Another No Bill To Its Trophy Case<\/a>
Lindsey Halligan Says Her \u2018I\u2019m An Illegal Appointment\u2019 T-Shirt Has People Asking A Lot Of Questions Already Answered By Her Shirt<\/a><\/p>\n
\nKathryn Rubino is a Senior Editor at Above the Law, host of\u00a0The Jabot podcast<\/a>, and co-host of\u00a0Thinking Like A Lawyer<\/a>. AtL tipsters are the best, so please connect with her. Feel free to email\u00a0her<\/a>\u00a0with any tips, questions, or comments and follow her on Twitter\u00a0@Kathryn1<\/a>\u00a0or Bluesky\u00a0@Kathryn1<\/a><\/em><\/strong><\/em><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"