James Comey thought he was cornered after Trump’s handpicked prosecutor indicted him.
But the former FBI Director just turned the tables.
And James Comey just dropped one legal bombshell that could blow up Donald Trump’s entire prosecution strategy.
Comey’s legal team challenges Halligan appointment
Former FBI Director James Comey’s attorneys filed a motion alerting the court they’ll challenge the lawfulness of US Attorney Lindsey Halligan’s appointment in the Eastern District of Virginia.¹
Patrick Fitzgerald, Comey’s lawyer, notified Judge Michael Nachmanoff on Tuesday that they’ll file their motion to dismiss on October 20.²
The motion will argue Halligan was unlawfully appointed as US Attorney – the same argument that successfully torpedoed prosecutions in New Jersey earlier this year.³
Comey faces two federal charges stemming from his September 2020 testimony to the Senate Judiciary Committee – one count of making false statements and one count of obstruction of a congressional proceeding.⁴
If convicted, he’s looking at up to five years in prison.⁵
The indictment came just days after President Trump publicly demanded Attorney General Pam Bondi prosecute Comey, posting on social media that "we can’t delay any longer."⁶
Trump had already fired Erik Siebert, the previous US Attorney for the Eastern District of Virginia, after Siebert refused to bring charges against Comey, citing insufficient evidence.⁷
Within days of Siebert’s removal, Trump appointed Halligan – his former personal attorney – as Interim US Attorney.⁸
Despite having never presented evidence to a grand jury, Halligan underwent accelerated training with DOJ attorneys and FBI personnel.⁹
She participated in multiple practice runs and spent hours reviewing materials before presenting the case to the grand jury.¹⁰
Days after being sworn in, Halligan secured the indictment against Comey that Siebert had refused to pursue.¹¹
The grand jury initially considered three charges but declined to indict on one count after more than 12 jurors "did not concur."¹²
That uncharged count involved Comey’s answer to a question from Senator Lindsey Graham about whether he knew of Hillary Clinton’s alleged plan to tie Trump to Russia.¹³
The statute of limitations on the false statement charge that was approved was set to expire within days of the indictment.¹⁴
Comey entered a not guilty plea through his attorney on Wednesday, and the trial date was set for January 5, 2026.¹⁵
Federal judges already ruled similar appointments unlawful
Comey’s legal strategy isn’t a shot in the dark – it’s following a playbook that’s already worked.
In August, US District Judge Matthew Brann ruled that Trump’s appointment of Alina Habba as US Attorney for New Jersey was unlawful.¹⁶
Habba, another former Trump personal attorney, faced the exact same appointment issues Halligan now confronts.¹⁷
Trump had initially appointed Habba as interim US Attorney in March, but her 120-day term expired in July without Senate confirmation.¹⁸
When New Jersey federal judges appointed Habba’s deputy to replace her, Attorney General Bondi fired that replacement and reinstalled Habba through a complicated maneuver.¹⁹
Bondi appointed Habba as "Special Attorney to the Attorney General," then designated her as First Assistant US Attorney, which automatically made her Acting US Attorney.²⁰
Judge Brann called these moves "a novel series of legal and personnel moves" designed to circumvent Senate confirmation requirements and statutory time limits.²¹
He concluded Habba "has exercised the functions and duties of the office of the United States Attorney for the District of New Jersey without lawful authority" and must be disqualified from prosecuting cases.²²
The ruling remained stayed pending appeal, but it established powerful precedent that criminal defendants across the country started citing immediately.²³
A similar case in Nevada produced an identical result, with US District Judge David Campbell ruling the Trump Administration violated federal law by trying to keep controversial acting prosecutors in place after their terms expired.²⁴
Ten former US Attorneys spanning from the Reagan to Biden administrations filed an amicus brief supporting Judge Brann’s ruling, arguing the appointment laws exist specifically to prevent presidents from installing "unfit characters" without Senate oversight.²⁵
Comey’s attorneys cited these two rulings in their notice to the court.²⁶
The Federal Vacancies Reform Act allows interim US Attorney appointments for only 120 days.²⁷
After that deadline passes without Senate confirmation, district court judges have statutory authority to appoint a replacement.²⁸
The law also prohibits someone whose nomination was submitted to the Senate from serving in an acting capacity for the same office – a provision designed to prevent exactly what happened with Habba and potentially with Halligan.²⁹
Legal experts say if Halligan’s appointment followed the same pattern as Habba’s, Comey’s team has a strong argument.³⁰
Anne Joseph O’Connell, a Stanford Law School professor who studies administrative law, warned the Habba ruling "opens up a challenge to any acting official serving under Federal Vacancies Reform Act who was named first assistant to Senate-confirmed slot after the last confirmed person departed."³¹
That description could apply to multiple acting US Attorneys the Trump Administration installed across the country.³²
Trump’s rushed prosecution strategy may backfire
Trump’s determination to prosecute Comey before the statute of limitations expired created the vulnerability Comey’s attorneys are now exploiting.
The President publicly pressured Bondi to move faster on September 20, writing on Truth Social that "we can’t delay any longer, it’s killing our reputation and credibility."³³
Less than a week later, Comey was indicted.³⁴
That breakneck timeline required Trump to fire Siebert and install Halligan with no time for proper Senate confirmation procedures.³⁵
Virginia Democrat Senator Mark Warner condemned the move, calling it "a dangerous abuse of power" and noting that "by ousting a respected, independent prosecutor and replacing him with a partisan loyalist, Trump is undermining one of the most important US Attorney’s offices in the country."³⁶
Former federal prosecutors have raised concerns about the circumstances surrounding Comey’s indictment beyond just the appointment issue.³⁷
A 2018 Justice Department Inspector General report examined the same conduct Comey now faces charges over – whether he authorized leaks to the press.³⁸
That report concluded "the overwhelming weight of evidence supported Comey’s version of the conversation" with his deputy Andrew McCabe about the alleged leaks.³⁹
The IG report found that McCabe, not Comey, had made "multiple false or misleading statements" about authorizing press contacts.⁴⁰
Career prosecutors in the Eastern District of Virginia expressed doubts about the strength of the evidence against Comey – concerns that contributed to Siebert’s refusal to bring charges.⁴¹
After Siebert was pushed out, Halligan brought in prosecutors from North Carolina to assist on the case rather than rely solely on the career prosecutors who had raised those concerns.⁴²
Judge Nachmanoff, a Biden appointee, will have to rule on whether a separate judge should hear the motion challenging Halligan’s appointment.⁴³
Defense attorneys have successfully argued in other districts that judges have a conflict of interest in ruling on US Attorney appointments when those judges potentially could have been the ones to appoint a replacement under the statute.⁴⁴
If Comey prevails on his appointment challenge, it could void his entire indictment – the same outcome defendants in New Jersey sought with their challenges to Habba’s authority.⁴⁵
Beyond Comey’s individual case, a ruling against Halligan would create chaos for every prosecution her office has pursued since she took over.⁴⁶
Grand jury indictments she approved, plea deals she signed, and cases she supervised could all face challenges on the grounds they lacked proper legal authority.⁴⁷
Trump faces a broader problem with his US Attorney appointment strategy across multiple districts.⁴⁸
Senate Democrats have placed holds on his nominees, preventing full votes on most of his picks.⁴⁹
The Administration has tried using the Federal Vacancies Reform Act to extend interim terms beyond statutory limits, but federal judges are increasingly rejecting those maneuvers as unlawful.⁵⁰
The irony couldn’t be sharper – Trump’s rush to prosecute his enemies before time ran out may have created the legal opening that lets them walk free.⁵¹
Every shortcut the Administration took to install loyal prosecutors without Senate oversight is now ammunition for defense attorneys arguing their prosecutions are invalid.⁵²
Comey’s October 20 motion will test whether Trump can use interim appointments to bypass constitutional checks and balances on prosecutorial power.⁵³
The answer could determine not just Comey’s fate, but the viability of Trump’s entire retribution agenda against political opponents.⁵⁴
¹ Cristina Laila, "Comey Moves to Challenge Appointment of US Attorney Lindsey Halligan," Gateway Pundit, October 14, 2025.
² Ibid.
³ Ibid.
⁴ Ibid.
⁵ Ibid.
⁶ Ryan Lucas, "A look at former FBI Director James Comey’s indictment," NPR, September 27, 2025.
⁷ Cristina Laila, "Comey Moves to Challenge Appointment of US Attorney Lindsey Halligan," Gateway Pundit, October 14, 2025.
⁸ Ibid.
⁹ Katelyn Polantz, "James Comey: Former FBI Director indicted by federal grand jury," CNN Politics, September 26, 2025.
¹⁰ Ibid.
¹¹ Ibid.
¹² Dareh Gregorian and Tom Winter, "Former FBI Director James Comey indicted following pressure from Trump," CNBC, September 25, 2025.
¹³ Ibid.
¹⁴ Ibid.
¹⁵ Cristina Laila, "Comey Moves to Challenge Appointment of US Attorney Lindsey Halligan," Gateway Pundit, October 14, 2025.
¹⁶ Dareh Gregorian, "Alina Habba’s appointment as US attorney for New Jersey ‘unlawful,’ judge rules," NBC News, August 21, 2025.
¹⁷ Ibid.
¹⁸ Ibid.
¹⁹ Ibid.
²⁰ Ibid.
²¹ Ibid.
²² Ibid.
²³ Ibid.
²⁴ Joey Fox, "Was Alina Habba’s appointment legal? Ten ex-U.S. Attorneys say no," New Jersey Globe, October 7, 2025.
²⁵ Ibid.
²⁶ Cristina Laila, "Comey Moves to Challenge Appointment of US Attorney Lindsey Halligan," Gateway Pundit, October 14, 2025.
²⁷ "Interim and Acting U.S. Attorneys Raise Open Legal Questions," Congress.gov, Library of Congress.
²⁸ Ibid.
²⁹ Ibid.
³⁰ Lauren del Valle and Katelyn Polantz, "Alina Habba, Trump’s former personal lawyer, is not legally serving as the acting US attorney for New Jersey, judge rules," CNN Politics, August 21, 2025.
³¹ Ibid.
³² Ibid.
³³ Ryan Lucas, "A look at former FBI Director James Comey’s indictment," NPR, September 27, 2025.
³⁴ Ibid.
³⁵ Ibid.
³⁶ Dareh Gregorian and Tom Winter, "Former FBI Director James Comey indicted following pressure from Trump," CNBC, September 25, 2025.
³⁷ Patrick Fitzgerald statement quoted in "Former FBI Director James Comey indicted after Trump called for charges," NBC News, September 26, 2025.
³⁸ Ibid.
³⁹ Ibid.
⁴⁰ Ibid.
⁴¹ Ryan Lucas, "A look at former FBI Director James Comey’s indictment," NPR, September 27, 2025.
⁴² Ibid.
⁴³ Brooke Singman, "Comey pleads not guilty in court after indictment on alleged false statements, obstruction," Fox News, October 8, 2025.
⁴⁴ Lauren del Valle and Katelyn Polantz, "Alina Habba, Trump’s former personal lawyer, is not legally serving as the acting US attorney for New Jersey, judge rules," CNN Politics, August 21, 2025.
⁴⁵ Ibid.
⁴⁶ Ibid.
⁴⁷ Ibid.
⁴⁸ Ibid.
⁴⁹ Ibid.
⁵⁰ Ibid.
⁵¹ Author analysis.
⁵² Author analysis.
⁵³ Author analysis.
⁵⁴ Author analysis.
