A federal judge ruled in November that Lindsey Halligan was unlawfully installed by the Trump administration as the top federal prosecutor in the Eastern District of Virginia. That led a different judge to order Halligan to explain why she kept calling herself the district’s U.S. attorney in court papers.
Among her defenses: Jack Smith did it, too.
In her response Tuesday, Halligan recalled that U.S. District Judge Aileen Cannon dismissed Donald Trump’s classified documents indictment in Florida on the grounds that Smith was unlawfully appointed as special counsel. “Yet in the days and weeks that followed, the Government continued — openly and without objection by any Court — to file documents identifying Jack Smith by his title as Special Counsel while appellate review proceeded,” Halligan wrote.
She added that Smith continued to refer to himself as special counsel in Trump’s separate election interference case in Washington, D.C., and that “as far as the Government is aware, no court — much less any judge — ever threatened Smith with attorney discipline for making purportedly ‘false or misleading statement[s],’ ‘knowingly disobey[ing]’ a court order, or engaging in ‘professional misconduct,’” Halligan wrote, referring to the order that demanded her response, which was issued by U.S. District Judge David Novak, a Trump appointee in the Eastern District of Virginia.
Yet Cannon’s 2024 order dismissing the documents indictment specified that it was “confined to this proceeding” in the Florida case, so it’s unclear how it could’ve led Smith to think he couldn’t refer to himself as special counsel in D.C., where Cannon’s ruling would not apply anyway.
Still, Halligan argues that the orders finding she was unlawfully appointed don’t stop her from holding herself out as the district’s U.S. attorney. Those orders came in November from U.S. District Judge Cameron McGowan Currie, who was brought in from South Carolina to rule on motions to dismiss the indictments brought by Halligan against New York Attorney General Letitia James and former FBI Director James Comey. In Novak’s order demanding that Halligan explain herself, which came in a different case pending before him, he noted that the government is appealing the ruling against Halligan but said Currie’s action hasn’t been paused pending appeal. “Consequently, it remains the binding precedent in this district and is not subject to being ignored,” Novak wrote.
Halligan contested that Currie’s ruling is “binding” here. In doing so, she made the generally correct observation that district court rulings aren’t binding on other district court judges (hence one of the reasons why her observation about Smith calling himself special counsel in D.C. after Cannon’s dismissal in Florida is unpersuasive).
But that general notion wouldn’t make much sense to apply in this situation, where Currie was seemingly brought in to resolve the issue across the board throughout the district. When dealing with the lawfulness of a U.S. attorney’s appointment, a judge will be brought in from outside the district, apparently to avoid a conflict because the judges in a given district have the power to appoint replacement U.S. attorneys when there’s a vacancy. So unless Currie or some other out-of-district judge is going to be brought in to resolve the legality of Halligan’s tenure whenever a new defendant challenges it, it would make sense to consider her ruling as binding throughout the district unless it’s overturned on appeal.
We’ll see what Novak says in response to Halligan’s explanation. Ultimately, it’s unclear how much any of this episode will matter. In his order demanding her explanation, the judge suggested the possibility of bar discipline against Halligan for falsely referring to herself as the U.S. attorney, but that seems unlikely to occur for multiple reasons, including that her behavior could be chalked up to her hewing to an incorrect legal position rather than engaging in unethical conduct.
Perhaps it would get into different territory if, for example, Novak were to respond by ordering Halligan to take a certain action and she were to disobey him directly in a way that leaves no legally defensible explanation. I previously wrote about the challenges facing a bar complaint filed against Halligan in November, but of course it’s possible that she makes the unlikely a reality by however she chooses to behave going forward.
Likely more importantly, we’ll see what the federal appeals court says in the litigation over Halligan’s appointment. That appellate challenge is just getting underway, and we might not have a ruling for some time. Even then, it might not be fully resolved until the Supreme Court weighs in after the appeals court.
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