Misrule of Law

I’m not referring to baby showers. Should Senate Republicans vote to eliminate the “blue slip” policy that allows blue state Senators to thwart the President’s nominations for U.S. Attorney and federal district judges? The answer is Yes.

Thanks to the Tennessee Star (here) and the Michael Patrick Leahy Show (here)!

At least until a murderous Afghan refugee assassinated a National Guard member in the nation’s capital, the big news story in the week before Thanksgiving was the dismissal “without prejudice” of the federal indictments against former FBI Director James Comey and New York Attorney General Letitia James by U.S. District Judge Cameron McGowan Currie, a “senior” judge appointed by Bill Clinton in 1994 who normally sits in South Carolina. The indictments were issued by a federal grand jury in the Eastern District of Virginia by Interim U.S. Attorney Lindsey Halligan.

The dismissal raised many questions, starting with: Why was a judge from South Carolina ruling on the dismissal of criminal charges in a case pending in the Eastern District of Virginia? Since this is a case fraught with swampy politics, anti-Trump motives, and a convoluted back story, readers may want to take a Dramamine tablet to avoid motion sickness from the dizzying ride.

The short answer to Judge Currie’s assignment is that the judges assigned to the Eastern District of Virginia had a “conflict,” requiring the Chief Judge of the Fourth Circuit Court of Appeals, Albert Diaz (appointed by Barack Obama), to select a replacement judge to preside over the motion to dismiss. (The Fourth Circuit covers Maryland, Virginia, West Virginia, North Carolina, and South Carolina.)

Which brings us to the next question: What was the nature of the “conflict” requiring the recusal of the Eastern District of Virginia federal bench? This is where the Dramamine tablet will come in handy. The motion to dismiss was not based on any quarrel with the sufficiency of the evidence against Comey and James; nor did it rest on a legal defense, such as the statute of limitations; nor did it allege that the grand jury acted improperly. Rather, the motion was based on a technicality. Comey and James argued (and Judge Currie agreed) that Halligan was “unlawfully” appointed as Interim U.S. Attorney under 28 U.S.C. section 546, which rendered the indictment “invalid.”

The position of U.S. Attorney is considered an “inferior office,” unlike cabinet heads and federal judges, which require Senate confirmation. Inferior officers are subject to the complicated requirements of 28 U.S.C. section 546, a federal statute that divides the responsibility for making interim appointments of U.S. Attorneys between the Attorney General (Pam Bondi) and the district courts. To simplify section 546, the Attorney General has the authority to appoint a U.S. Attorney when the position is vacant, but if the candidate is not confirmed by the Senate within 120 days, section 546(d) states that “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.” In other words, the executive branch’s appointment power is preempted if Senate confirmation stalls for whatever reason.

In the case of Halligan’s “interim” appointment as U.S. Attorney (i.e., pending Senate confirmation), General Bondi appointed Halligan on September 22, 2025 after the previous U.S. Attorney (Erik Seibert) resigned. Siebert had not been confirmed by the Senate within 120 days of his appointment by General Bondi, so the district court in the Eastern District of Virginia appointed him pursuant to 28 U.S.C. section 546(d). The grand jury indictments against Comey and James were issued just days following Halligan’s appointment, on September 25, 2025. (General Bondi subsequently “ratified” Halligan’s actions.)

Comey argued, and Judge Currie agreed, that the Attorney General is limited to one “interim” appointment for each office, and that after the district court has appointed a candidate following the expiration of the initial 120-day period, “the district court possessed the exclusive authority to appoint an interim U.S. Attorney.” Thus, upon Siebert’s resignation, his replacement as U.S. Attorney for the Eastern District of Virginia was the exclusive province of the district court, and General Bondi’s appointment of a different interim U.S. Attorney (Halligan) was invalid. Judge Collier held that “the Attorney General’s authority to appoint an interim U.S. Attorney lasts for a total of 120 days from the date she first invokes section 546 after the departure of a Senate-confirmed U.S. Attorney. If the position remains vacant at the end of the 120-day period, the exclusive authority to make further interim appointments under the statute shifts to the district court, where it remains until the President’s nominee is confirmed by the Senate.”

Some legal scholars believe section 546 is an unconstitutional infringement on the President’s Article II prerogatives, and that the President, through the Attorney General, has the Article II power to appoint (and, if necessary, re-appoint) candidates even if they have not been confirmed by the Senate during the 120 days.

This explains why a district judge from outside the Eastern District of Virginia was brought in to decide the motion—the Eastern District of Virginia bench had an interest in the outcome of the motion.

The next question is why the Senate had not acted on Siebert’s “interim” appointment (and on other “interim” appointments in other districts, such as Alina Habba as Interim U.S. Attorney in New Jersey). Readers may want to take a second dose of Dramamine. Some commentators blame Senate Majority Leader John Thune for not working harder to confirm President Trump’s nominees. While it is true that the Senate has exhibited lethargy rather than alacrity in exercising its “advice and consent” power, the blame lies elsewhere. Likewise, some commentators unfairly blame Senate Judiciary Chairman Chuck Grassley for not shepherding President Trump’s nominees (for judicial positions and U.S. Attorney) for confirmation votes more  promptly. Again, the blame lies elsewhere.

What, then, is to blame? A little-discussed but important Senate rule is the “blue slip” policy. Fashioned in more collegial times as a mechanism to respect states’ prerogatives—comity, in other words—a tradition was formed to allow the Senate Judiciary Committee to proceed with confirmation hearings for district court and U.S. Attorney nominees only when both Senators from the state in which the nominee would be based have approved the nomination by returning a “blue slip.” This tradition has been followed, to varying degrees, since 1917.  

In blue states where both Senators are Democrats, therefore, the blue slip policy gives partisan actors veto power over the President’s nominations for posts in that state. Both of Virginia’s Senators are Democrats. Ditto New Jersey. Thus, Trump-hating Democrats have been able to embargo the President’s nominations for U.S. Attorney in Virginia (and New Jersey, Nevada, and California), thereby sabotaging the administration of justice in blue states. Democrats exploit this technicality to create a “get out of jail free” card for Deep State villains such as James Comey, who epitomizes a scheming, unethical swamp dweller.

In the movie version of Cormac McCarthy’s novel No Country for Old Men, the psychopathic protagonist Anton Chigurh dispenses nuggets of wisdom, including this one: “If the rule you followed brought you to this, of what use was the rule?” The same could be said of the blue slip policy. Democrats are ruthless. If they ever regain control of Congress, they will repeal the filibuster, pack the Supreme Court, vote to grant statehood to D.C. and Puerto Rico, abolish the Electoral College, eliminate the blue slip policy, and more. Senate Republicans should take that action now, and restore President Trump’s ability to appoint U.S. Attorneys without judicial interference.

Commentators and pundits hostile to President Trump mock the dismissal of the Comey indictment with headlines such as “The Gang That Couldn’t Indict Straight” and “Series of Stumbles Hang Over Federal Prosecution of Comey.”  In reality, the dismissal of the Comey indictment (like that of Letitia James) is not on the merits, is not final, and rests on an absurd technicality that is likely unconstitutional (as an encroachment on executive branch authority) and that is possible only because of a silly Senate tradition that allows partisan Democrats to impede President Trump’s MAGA agenda.

Senate Republicans should rescind the blue slip policy immediately, re-indict Comey and James, and proceed with their meritorious prosecutions.