Amicus Briefs in U.S. v. James and U.S. v. Comey
The Society for the Rule of Law has filed identical amicus briefs in United States of America v. James and United States of America v. Comey, urging the United States Court of Appeals for the Fourth Circuit to uphold the District Court for the Eastern District of Virginia’s ruling that the appointment of Lindsay Halligan as U.S. Attorney was unlawful.
The brief argues that appointing Halligan as U.S. Attorney violates the Constitution and federal law. In doing so, the appointment undermines the rule of law by “emboldening politicized prosecution and chilling opposition.”
The district court correctly held the appointment of Lindsey Halligan as U.S. Attorney for the Eastern District of Virginia to be unlawful. The Executive Branch cannot ignore the Constitution and federal statutes by installing a handpicked loyalist to indefinitely occupy the office of U.S. Attorney where the President has not obtained Senate confirmation for his preferred prosecutor. The administration’s actions disregard the checks and balances established in the Appointments Clause and 28 U.S.C. § 546(d), and the Senate’s ultimate authority under the Constitution to provide advice and consent for the appointment of U.S. Attorneys. Congress has not relinquished its constitutional role and placed responsibility for U.S. Attorney appointments solely in the Executive Branch. Here, Halligan’s appointment violated both 28 U.S.C. § 546 and the Constitution. Although not directly at issue, the appointment also conflicted with the alternate paths available to the President for acting appointments under the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. §§ 3345 et seq.
The Executive Branch cannot be permitted to proceed in such a unilateral and unchecked manner, particularly for offices subject to Senate confirmation by consensus understanding since the first Congress in 1789. See James A. Heilpern, Interim United States Attorneys, 28 Geo. Mason L. Rev. 187, 190-91 (2020). The administration’s end-run around our constitutional system of checks and balances imperils the integrity of U.S. Attorney’s offices and the fair and impartial administration of justice. Prosecutors wield enormous power for the public good; they should not be weaponized as vehicles for personal retribution accountable to only the President and not the Constitution they serve. Such weaponization denigrates the office of U.S. Attorney, emboldens politicized prosecutions, and undermines the rule of law. Yet the cases on appeal show a President intent on prosecuting as well as persecuting his perceived political adversaries and settling scores. The advice and consent process that the Appointments Clause established, and that the First Congress adopted, was specifically designed to prevent “unfit characters” willing to pursue such schemes. The Federalist No. 76 (Alexander Hamilton). It is essential that this Court uphold the Constitutional design and the limits that Congress placed on U.S. Attorney appointments and affirm the decisions below.
Read the full brief here. For press inquiries, please contact [email protected].
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