The US Attorney for EDVa continues to name Lindsey Halligan as interim US Attorney, contra last week’s decision from Judge Currie dismissing the Comey and James indictments on the grounds that Halligan was never properly appointed. The Time states that Judge Currie “did not expressly order her removed from the office” and that DOJ has “seized on the lack of explicit instruction” to keep her in place. This has ticked off some ED Va judges presiding over other cases and sparked accusations of the Administration (again) ignoring court orders.
Judge Currie did not order Halligan removed from her (supposed) office because the court does not have the power to do that. All she could do–and all she did–was dismiss the indictments on the grounds of Halligan’s improper appointment. DOJ does not act “in direct contrvaention” of that order by keeping Halligan’s name on documents in different, unrelated cases.
Nor are we even into true departmentalism of ignoring controlling judicial precedent (which the government can do). Judge Currie’s legal conclusion that Halligan cannot serve in that role does not create binding authority in the district. Another ED Va judge could decide the appointment is valid. There is no “law of this district” that Halligan was improperly appointed.
To the extent they agree with Currie about Halligan’s appointment, they are doing what they should do in other cases. Ordering Halligan’s name removed or ordering that other names be added at the top of the papers. They could dismiss the indictments, although that is not a proper remedy for this violation. And they could begin sanctioning DOJ lawyers who continue to sign papers under Halligan’s name, because they are engaged in frivolous conduct under persuasive judicial precedent. But none of these moves is a product of Currie’s order; each represents a new decision by that judge to apply a principle–Halligan’s appointment is invalid–to a new case.
The new controversy applies the “writ-of-erasure” fallacy to Lindsay Halligan. Courts and others read a court decision that a law is constitutionally invalid as if it erased the law, such that government violates that court order by enforcing that law (or a similar law) against another person in another context. Here, courts are trying to erase Lindsay Halligan as US Attorney–she disappeared, such that it violates the court order for her name to appear in another context. That is not how this works.