Pointed questions and gasps in courtroom: Takeaways from hearing on fate of Trump’s handpicked prosecutor Lindsey Halligan

Attorneys for former FBI Director James Comey and New York Attorney General Letitia James battled the Justice Department in court Thursday over whether President Donald Trump lawfully appointed a prosecutor to go after his political enemies.

The two cases suffer from “a fundamental defect,” Comey’s attorney, Ephraim McDowell began the hearing, arguing that interim US Attorney Lindsey Halligan for the Eastern District of Virginia brought his client’s case before a grand jury alone despite having “no authority to do so.”

Halligan, then a White House adviser, was appointed after the previous interim US Attorney for the district was pressured to pursue indictments against the two, who Trump repeatedly has attacked and demanded be charged.

One lawyer for the Justice Department, Henry Whitaker, argued Thursday that Comey and James were trying to “elevate what is at best a paperwork error.”

Comey is charged with making a false statement to Congress and James with bank fraud. Both have pleaded not guilty.

Here’s what to know:

The limit does not exist, DOJ argues

At the heart of Thursday’s dispute is whether the 120-day limit imposed for interim US attorneys is truly a limit or a guidance for when the attorney general needs to reassess their selection.

Defense attorneys argue that following the limit, an interim appointee must be confirmed by the Senate or have their appointment extended by the judges of the district they serve.

If Halligan can be appointed as the head prosecutor of the Alexandria, Virginia, office despite the limit on individuals serving in the job on an interim basis, McDowell argued, then that guardrail is useless.

Her appointment, he said, acted as an “evasion of the Appointments Clause and separation of powers.”

James’ attorney, Abbe Lowell, argued Thursday that the “government’s reading” of the federal law at issue requires the judge “to add words” to it.

The underlying statute, Whitaker said, doesn’t say the attorney general can only “cram multiple appointments” in one, 120-day period, but instead can continue to select and re-evaluate.

“We do not argue that the attorney general,” Whitaker continued, has a “fire and forget” authority. “The idea that we are going to try to evade Senate confirmation,” is “fanciful.”

US v Trump

The Judge presiding over the issue of Halligan’s appointment, Cameron McGowan Currie, pressed Whitaker Thursday on whether the government believed the classified documents case in Florida against Donald Trump was incorrectly dismissed.

The judge in that case, Aileen Cannon, found that then-special counsel Jack Smith was wrongly appointed in part because the Senate had not confirmed him to the role.

The question drew gasps from the audience in the courtroom and came toward the tail end of the hearing.

Whitaker proceeded to walk a tight legal rope by arguing that Smith would not have even met the qualifications for a US Attorney and enjoyed “unique and broad” powers as a special counsel.

“You wouldn’t have appointed Jack Smith” as a US attorney, Whitaker said, adding that “the attorney general has full authority” to appoint those who qualify.

Missing time

Currie also laid into Whitaker during the hearing on whether Attorney General Pam Bondi had reviewed the grand jury transcript in James Comey’s case, noting there was no record of anything that happened after 4:28pm ET that day. Comey wasn’t indicted for nearly two hours after that, according to available court transcripts.

“It became obvious to me that the attorney general could not have reviewed” the entire proceeding, Currie said, adding that it appeared “there was no court reporter present” at the time of the missing portion.

In preparation for Thursday’s hearing, Currie privately reviewed the transcripts and said previously that she thought looking at the transcripts was “necessary to determine the extent of the indictment signer’s involvement in the grand jury proceedings.”

In a statement to CNN following the hearing, a representative for the Justice Department denied that there was anything missing from the transcript.

“There is no ‘missing two hours.’ That time period refers to when the jurors were deliberating behind closed doors, which would not be included in a transcription,” the statement said.

The DOJ, however, did not offer an explanation for the gap in court.

Currie said she would issue a decision over Halligan’s appointment before Thanksgiving, with both trials currently set for January.

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