Judge Novak (E.D. Va.) has filed the latest (and perhaps final?) shot in the battle over Lindsey Halligan’s service as US Attorney for the district. This should end it, unless Halligan wants to run to the Fourth Circuit and SCOTUS. But Novak’s solution raises new questions about the power of a court.
Novak focuses on the unique process surrounding the original opinion and order declaring Halligan’s appointment invalid. Fourth Circuit Chief Judge Albert Diaz transferred to Judge Currie the disqualification motions in the prosecutions of Letitia James and James Comey.1 He transferred “for the limited purpose of hearing and determining pending and future motions concerning the appointment, qualification, or disqualification of the United States Attorney or Office” in each case and “other cases involving similar challenges” to the US Attorney or office. Thus, Currie resolved the issue not only for Comey and James but for all cases in the E.D.Va. raising that issue.
Although Novak does not put it in these terms, Currie issued an order for all criminal prosecutions in the district listing Halligan as U.S. Attorney. This includes US v. Jefferson, the case before Novak. Thus, by continuing to present as U.S. Attorney in Jefferson, Halligan violated an existing order in Jefferson that, in function if not form, Novak had issued.
This theory works as to pending cases–every judge, in essence, adopted Judge Currie’s order in the case pending before that judge when she issued her order. It might have been clearer had each Judge done so expressly. But that might not be necessary; the Currie order becomes part of the docket of each case. It is less certain whether it works as to future cases (including Jefferson, filed after Judge Currie’s order) without express adoption in that new case. The theory must be that Currie’s order becomes an order in every case before every judge when that case is filed. That is, it functions (even if it lacks the content of one) as a standing order.
The question remains whether the Chief can do this or whether his order can achieve it. Novak assumes he can, but does not explain why. In fact, Novak does not consider that question because he does not isolate the real issue. His analysis conflates orders and opinions, confusing the analysis. He suggests that the Chief’s order does some things I do not think it can do–alter the precedential effect of district court opinions or convert an opinion in Comey into an order in Jefferson.
Novak also reads CASA narrowly–applying to injunctions and declaratory judgments passing on the constitutional validity of policy but not to questions of general executive conduct (such as appearing as US Attorney). But CASA stands for a broader point–that a court order in one case as to certain parties does not apply–as an order–to other cases involving other parties.
Please tell me where I am wrong.
- This begs to be a “Before and After” answer on Jeopardy? “Donald Trump has sought political revenge on this two-headed Defendant.” ↩︎