The Justice Department asked a federal appeals court Tuesday to reinstate dismissed criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, but two of the three judges on the panel sounded unconvinced.

A three-judge panel on the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, heard oral arguments on whether a lower court was right to throw out both indictments last November. The cases collapsed after U.S. District Judge Cameron McGowan Currie ruled that the interim prosecutor who secured the charges, Lindsey Halligan, had been unlawfully appointed to her post. Halligan, a former personal lawyer to President Trump with no prior prosecutorial experience, was tapped by then-Attorney General Pam Bondi for a 120-day stint as interim U.S. Attorney for the Eastern District of Virginia. She obtained both indictments on her own.

The DOJ now argues Bondi had full authority to make that appointment. But the appeals court's early questioning suggested the government faces a steep climb. Chief U.S. Circuit Judge Albert Diaz and Circuit Judge Henry Floyd both pressed the administration's lawyers on the legality of Halligan's role, Reuters reported.

Two judges questioned whether Halligan had any more authority than "a man on the street"

Judge Floyd put the problem bluntly. Questioning the administration's interpretation of federal appointment authority, he asked what separated Halligan's legal standing from that of an ordinary citizen.

"What's different with a man on the street?"

Chief Judge Diaz was equally direct. Pressing the DOJ's position that Bondi could install Halligan without Senate involvement, he asked:

"How can that possibly be?"

Both questions cut to the core of the dispute. Federal law sets rules for how U.S. Attorney vacancies can be filled, rules designed, in part, to preserve the Senate's constitutional role in confirming top federal prosecutors. Judge Currie concluded last November that Halligan's appointment violated those rules. In her ruling, Currie wrote that Halligan had been "unlawfully serving in that role since September 22, 2025," and that "all actions flowing from Ms. Halligan's defective appointment constitute unlawful exercises of executive power and must be set aside."

Currie dismissed both cases without prejudice, meaning the government could theoretically re-indict. But that path has not gone smoothly. Federal prosecutors have twice failed to secure a new grand jury indictment against Letitia James. And the statute of limitations on Comey's original charge, lying to Congress about authorizing leaks to the news media, faces expiration concerns as of September 30, according to Fox News.

The broader legal battle over the Trump administration's approach to federal prosecutions has drawn scrutiny from multiple directions. Attorney General Blanche has said he will weigh the president's views on prosecutions while insisting DOJ independence remains intact.

DOJ warns that Currie's ruling could hamstring 94 federal prosecutors' offices

The Justice Department's appeal rests on a broader institutional argument. DOJ lawyers contend that if Currie's interpretation of the vacancy statute stands, it would wrongly limit the attorney general's ability to name interim U.S. Attorneys to lead any of the 94 federal prosecutors' offices across the country. That framing casts the case as more than a dispute over two politically charged indictments, it positions the fight as a question about executive branch management of the federal law enforcement apparatus.

Defense lawyers for Comey and James counter that the DOJ's position would let a president keep loyalist interim prosecutors in place indefinitely, cutting the Senate out of the confirmation process entirely. That argument resonated with at least two members of the panel on Tuesday.

The DOJ has also pushed back hard against a second federal judge, David Novak, who suggested Halligan may have misrepresented her status as U.S. Attorney and raised the possibility of disciplinary proceedings. In a court filing, Halligan, Bondi, and Blanche called Novak's suggestion "a gross abuse of power and an affront to the separation of powers," arguing that "a contested legal position does not become a factual misrepresentation simply because one district judge has rejected it," Just the News reported.

Comey was indicted for lying to Congress; James faced bank fraud charges

The original indictment against Comey accused him of lying to Congress about authorizing leaks to the news media. James was charged with bank fraud for allegedly misrepresenting her use of a Virginia home. Both denied wrongdoing. Both alleged they were targets of a politically motivated prosecution.

The political backdrop is impossible to miss. In September 2025, Trump posted on social media mentioning both Comey and James by name, demanding that Bondi take action against his adversaries. Bondi then appointed Halligan, Trump's former personal attorney, to the Eastern District of Virginia post. Halligan secured both indictments herself.

Comey and Trump have a long, contentious history. Trump fired Comey as FBI director during his first term while Comey was overseeing an investigation into potential ties between Trump's 2016 presidential campaign and Russia. That investigation, and the subsequent probes into the investigators themselves, became one of the defining political fights of the last decade.

James, for her part, successfully sued Trump and his family business for fraud following Trump's first term, making her a prominent adversary. Legal analyst Andrew C. McCarthy had predicted as early as November 15, 2025, that the indictments would be dismissed, citing statutory problems with Halligan's appointment under Section 546, the federal vacancy provision at issue. National Review noted at the time that the dismissals were without prejudice, leaving the door open for re-indictment.

A separate Comey case moves forward over a seashell social media post

Even with the original indictment in limbo, Comey faces a separate, ongoing federal case. That prosecution accuses him of threatening Trump in a social media post that showed seashells on a beach arranged to form the numbers "86-47." The government has interpreted the post as a threat against the 47th president. The FBI reportedly turned to mob informant Sammy Gravano to build its case that Comey understood "86" as a call to violence.

That case is proceeding on a separate legal track and was not part of Tuesday's arguments in Richmond.

The Detroit News reported that the 4th Circuit's decision could have implications well beyond these two defendants, potentially settling how much latitude an attorney general has to install interim prosecutors without Senate approval. A ruling is expected in the coming weeks or months.

The broader question of executive power over federal prosecutions, including recent clashes over special counsel authority, continues to reshape the relationship between the White House, the Justice Department, and the courts.

If the government wants to hold its adversaries accountable, it needs to do the basic work of appointing prosecutors who can survive a courtroom challenge. Cutting corners on the law to enforce the law is a losing strategy, and Tuesday's hearing made that plain.