Almost four decades ago, a legal opinion from a key conservative figure now serving on the U.S. Supreme Court is being referenced by former FBI Director James Comey. This historical perspective is being utilized in an attempt to argue that his criminal case, endorsed by then-President Donald Trump, is legally invalid and should be dismissed.

As Comey prepares to file motions seeking the dismissal of charges related to false statements and obstruction, attention turns to an analysis by Ed Whelan from the National Review. Whelan, who once clerked for Justice Antonin Scalia and served as a principal deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel, penned an early critique. His focus was on the appointment process of Lindsey Halligan.

Lindsey Halligan, who previously worked as an insurance attorney in Florida and was part of Trump’s legal team in the Mar-a-Lago classified documents case, faced questions about her appointment as interim U.S. attorney. Her appointment followed the resignation of Erik Siebert, yet Whelan argues that her appointment may not have been legally valid.

Whelan’s September articles suggest that Halligan’s appointment is potentially flawed due to the Justice Department’s stance that prohibits the U.S. attorney general from making successive interim appointments of U.S. attorneys, as outlined in federal statutory law. Such a flaw, if proven, could be detrimental to the case against Comey.

This perspective was articulated by none other than Justice Samuel Alito back in 1986. At the time, Alito was a deputy assistant attorney general in the Office of Legal Counsel. He wrote a memorandum expressing that Congress is capable of imposing limits on the statutory power to make interim appointments, which could significantly impact legal proceedings like Comey’s.

Thus, it would appear that Congress intended to confer on the Attorney General only the power to make one interim appointment; a subsequent interim appointment would have to be made by the district court. At most, it could be said that the district court has the primary authority to make subsequent interim appointments, and that the Attorney General may make such appointments only if the district court refuses to make such appointments, or fails to do so within a reasonable period.

Comey’s lawyers have now cited the very same Alito OLC opinion. According to the filing (citations removed):

It was not until 1986 that Congress for the first time gave the Attorney General a role in appointing interim U.S. Attorneys, adopting a version of the statute that mirrors the language as it exists today.

Just three days after Congress enacted the 1986 law, the Office of Legal Counsel (OLC) within the DOJ issued a memorandum, authored by then-Deputy Assistant Attorney General Samuel Alito, interpreting the provision in precisely the same manner as Mr. Comey here. Specifically, OLC concluded that while a “vacancy exists when the 120-day period expires under the amended section 546 and the President has either not made an appointment or the appointment has not been confirmed,” “it does not follow that the Attorney General may make another appointment pursuant to 28 U.S.C. 546(a) after the expiration of the 120-day period.” OLC reasoned that “[t]he statutory plan discloses a Congressional purpose that after the expiration of the 120-day period further interim appointments are to be made by the court rather than by the Attorney General.” That “contemporaneous[]” Executive Branch interpretation provides persuasive evidence of statutory meaning.

For Comey and his legal team, Alito’s words amount to the executive branch’s “longstanding interpretation dating back to the original enactment of the provision at issue,” meaning Halligan’s appointment runs “directly contrary to the statutory text, structure, history, and purpose” of the law.

“By purporting to appoint Ms. Halligan under Section 546, the President and Attorney General have disregarded that considered judgment and sought to reinstate a regime that Congress expressly repudiated,” the filing said, noting that Halligan was the only known prosecutor to present the case to a grand jury and sign the indictment mere days before the statute of limitations expired.

Beyond questions of whether the former Trump defense attorney with no prosecutorial experience was lawfully appointed, the circumstances surrounding Halligan’s installation already raised questions about her qualifications for the role. A story from Lawfare’s Anna Bower, which went viral Monday, took that scrutiny a step further.

It was revealed that the Eastern District of Virginia’s rookie interim U.S. attorney, who minored in broadcast journalism, reached out to the journalist via Signal, unsolicited, to reproach her about her reporting on the Letitia James case — while evidently operating under the assumption that the exchange Bower did not initiate was off the record.