Zero Chance Letitia James’ Motion to Disqualify Halligan Wins
Lindsey Halligan appointed United States Attorney
When New York Attorney General Letitia James was indicted in Virginia on charges of bank fraud and false statements, the case immediately became political theater. But her latest move — a motion to disqualify interim U.S. Attorney Colleen Halligan — crosses from theater into farce.
Filed by Washington power-lawyer Abbe Lowell, the motion claims Halligan’s appointment violates the Appointments Clause and exceeds the Attorney General’s authority under 28 U.S.C. § 546. That’s a bold charge — and one that collapses under even cursory legal scrutiny.
The short answer? There is zero chance this motion succeeds. Not because of politics, but because the law is unambiguous.
The Appointments Clause: The Constitution’s Hiring Manual
The Appointments Clause (Article II, Section 2, Clause 2) divides federal appointments into two categories:
Principal officers, who must be nominated by the President and confirmed by the Senate; and
Inferior officers, whose appointment Congress may vest in “the President alone, in the courts of law, or in the heads of departments.”
U.S. Attorneys are inferior officers — they act under the direction of the Attorney General. Congress codified that authority in § 546, permitting the Attorney General to fill vacancies temporarily until a presidential appointee is confirmed.
This design isn’t new or controversial. It reflects over two centuries of constitutional practice, repeatedly upheld by the Supreme Court — from United States v. Eaton (1898) to Edmond v. United States (1997). The Court has made clear that heads of departments, like the Attorney General, may appoint inferior officers without Senate involvement.
In short, Halligan’s appointment was not only constitutional — it was routine.
How Halligan Was Appointed — And Why It’s Lawful
Let’s walk through the statute that James’s motion misreads.
28 U.S.C. § 546(a):
“Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office … is vacant.”
§ 546(c)(2) adds:
A person appointed under this section may serve until “the earlier of—
(1) the qualification of a [Presidentially-appointed] U.S. attorney … or
(2) the expiration of 120 days after appointment by the Attorney General.”
James’s team argues this means the Attorney General cannot “re-appoint” an interim U.S. Attorney beyond a single 120-day term — and that doing so creates an unconstitutional “permanent” interim.
But that argument ignores both the plain text and the Department of Justice’s longstanding interpretation, as confirmed by the Office of Legal Counsel (OLC).
The OLC Memo That Settles the Issue
In Starting Date for Calculating the Term of an Interim United States Attorney (March 10, 2000), Acting Assistant Attorney General Randolph Moss issued an opinion that squarely addressed how § 546 operates. The 120-day clock, he wrote, begins on the date of appointment — not the date of the vacancy.
That sounds procedural, but the implication is profound:
The Attorney General’s appointment authority is complete upon appointment, not tethered to prior vacancies.
There is no statutory limit on how many successive interim appointments may be made before a presidential confirmation.
The court-appointment provision in § 546(d) only activates after the 120-day window expires without further lawful action by the Attorney General.
The OLC memo’s conclusion could not be clearer:
“The 120-day period in § 546(c)(2) is calculated from the date of the appointment by the Attorney General.”
That interpretation has guided every administration — Republican and Democrat — for 25 years.
Biden-Era Precedent: Continuity, Not Overreach
James’s filing insinuates that Halligan’s appointment represents a novel or partisan abuse. It isn’t.
Under President Biden, every interim U.S. Attorney appointment since January 2021 has complied with the OLC’s framework. None have exceeded the 120-day term without lawful renewal or replacement. In fact, no interim appointment during the Biden administration has been judicially challenged, let alone invalidated.
Contrast that with earlier administrations: President Trump’s Attorney General, Matthew Whitaker, briefly faced similar challenges — all dismissed as meritless. Courts have repeatedly upheld the Attorney General’s statutory power under § 546.
The suggestion that Halligan’s appointment violates the Appointments Clause or statutory term limits is not only wrong — it’s ahistorical.
What Statutory Interpretation Actually Requires
When courts interpret statutes, they begin with text. Only if the text is ambiguous do they look to structure, context, and legislative history.
Here, the text of § 546 is plain:
The Attorney General may appoint;
The appointee may serve for up to 120 days;
The court may appoint if the term expires.
Nothing in the statute prohibits re-appointment, nor limits the Attorney General to a single term.
Even James’s own filing admits this weakness. Her motion states:
“It seemingly believes that the Attorney General has the power to appoint an unlimited number of interim U.S. Attorneys to an unlimited number of 120-day terms.”
That’s not “seemingly” — it’s precisely what the statute authorizes.
Congress could have written otherwise. It didn’t. Courts don’t rewrite clear statutes to impose limits Congress never enacted.
The Real Reason the Motion Exists
So why file a motion with no chance of success? Strategy.
By attacking Halligan’s appointment, James’s team isn’t aiming for dismissal — they’re laying groundwork for discovery. If a judge entertains the claim even slightly, Lowell can demand internal DOJ communications about the case’s origins. That could expose whether political influence — especially public presidential statements demanding James’s prosecution — seeped into the indictment process.
It’s a fishing expedition dressed as a constitutional challenge.
But under settled law, the pond is dry.
The Legal Reality: This Motion Dies in an Unbiased Court
Even assuming perfect political neutrality, the motion would fail for four independent reasons:
Constitutional authority – The Attorney General is a “Head of Department” empowered under the Appointments Clause to appoint inferior officers.
Statutory clarity – § 546 expressly authorizes interim appointments without numerical or renewal limits.
OLC precedent – DOJ’s interpretation has been uniform since at least 2000, binding within the Executive Branch and respected by courts.
Judicial practice – No federal court has ever disqualified a U.S. Attorney on this theory.
The motion isn’t close. It’s political messaging with a caption.
Conclusion: The Law Is Simple — The Politics Aren’t
The Letitia James prosecution raises legitimate questions about selective enforcement and federal-state balance. But this particular skirmish — the motion to disqualify Halligan — is pure distraction.
In any unbiased court, the OLC memo, the plain language of § 546, and two centuries of Appointments Clause jurisprudence make one conclusion unavoidable:
The Attorney General had the authority. The appointment was lawful. The motion will fail.
About Ronald W. Chapman II
Ronald W. Chapman II is a Marine Corps veteran, nationally recognized federal criminal defense attorney, and author devoted to exposing government overreach where law and politics collide. He has represented clients nationwide in high-stakes cases and writes regularly on the balance between justice, power, and persuasion.
Explore his work and books—Truth & Persuasion and Fight the Feds—at ronaldwchapman.com/about.
Footnotes
United States v. Eaton, 169 U.S. 331 (1898), available at Supreme Court of the United States.
Edmond v. United States, 520 U.S. 651 (1997), available at Supreme Court of the United States.
Randolph D. Moss, Starting Date for Calculating the Term of an Interim United States Attorney, 24 Op. O.L.C. 57 (Mar. 10, 2000), available at U.S. Department of Justice OLC Archive.
In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019) (Whitaker challenge dismissed as moot).
Attorney Ronald W. Chapman II breaks down why Letitia James’s motion to disqualify U.S. Attorney Colleen Halligan is doomed. Backed by DOJ’s own OLC memo and two centuries of Appointments Clause precedent, Chapman argues the motion is pure politics masquerading as law.