After James Comey appeared in Virginia federal court, formally pleading not guilty to two criminal charges, there was little surprise when the ex-FBI director’s defense confirmed it will move to dismiss the case as a selective and vindictive prosecution brought at the direction of President Donald Trump for revenge. But another path to dismissal has emerged, which could derail the case all on its own: directly challenging the legitimacy of the Trump loyalist interim U.S. attorney who was the lone prosecutor to sign the indictment.

Comey’s friend and defense attorney, Patrick Fitzgerald, made his name as a longtime federal prosecutor and U.S. attorney in his pursuit of major political corruption cases, in multiple instances prosecuting high-profile defendants later granted clemency by Trump during his first term as president.

Lindsey Halligan, on the other hand, has never prosecuted a case until now, and Fitzgerald is evidently prepared to argue that she was unlawfully appointed to do so — which, in light of the statute of limitations expiring on Sept. 30, could be a defect fatal to the indictment.

“We think it’s an unlawful appointment,” Fitzgerald reportedly told U.S. District Judge Michael Nachmanoff on Wednesday morning, as he also said “our view is that this prosecution was brought at the direction of President Trump.”

Law&Crime has already explored how damaging discovery may be, if the case gets that far, on the heels of three different prosecutors’ offices, including the Eastern District of Virginia (EDVA) office Halligan now heads, which previously concluded that the evidence against Comey was insufficient to establish probable cause.

These revelations, combined with the president’s own words about Comey, his open directive for U.S. Attorney General Pam Bondi to act, and the resulting appointment of Halligan — by transparently forcing out interim U.S. Attorney Erik Siebert because he would not bring the case — each play right into the hands of the defense’s promised motion to dismiss for selective or vindictive prosecution.

Questions have also swirled regarding Halligan, a former Florida insurance lawyer who also served as Trump’s personal attorney in his Mar-a-Lago classified documents case and in at least one failed defamation lawsuit against CNN.

In late September, National Review’s Ed Whelan, a former clerk to Antonin Scalia and former DOJ Office of Legal Counsel (OLC) principal deputy assistant attorney general, led the charge of conservative criticism over Halligan’s installation, arguing that if she was not validly appointed as U.S. attorney, as he believed, that appeared to be a “fatal legal flaw.”

Whelan reasoned that the DOJ’s longstanding view has been that the attorney general “may not make successive interim appointments” of U.S. attorneys, citing a 1986 opinion from Samuel Alito, who was an OLC attorney at the time.

While it is not clear whether Comey’s forthcoming motion will raise precisely the same argument, we do have an idea, based on two recent DOJ failures, how the judge might handle the situation if Halligan was unlawfully appointed.

Consider the interim U.S. attorney appointments of Alina Habba in New Jersey and Sigal Chattah in Nevada.

In recent months, and in a kind of musical chairs, Habba and Chattah resigned before they reached their 120-day interim limits, and Bondi responded by naming them first assistant U.S. attorneys. Because those second-in-command roles were vacant by Trump and Bondi’s design, Habba and Chattah were, at least on paper, acting U.S. attorneys.

Bondi additionally named Habba and Chattah a “special attorney” to the AG, giving them the power to act as a U.S. attorney through another means as the office’s supervisor.

But criminal defendants countered the DOJ’s personnel maneuvering by seeking the disqualification of both prosecutors and the dismissal of indictments. The defendants did not succeed in dismissing the indictments, but they did persuade judges to disqualify Habba and Chattah because neither was validly serving as acting U.S. attorney. What’s more, both were barred from supervising their challengers’ cases.

The cases are on appeal, but it’s worth exploring what the judge in Habba’s case had to say about the kind of circumstances where dismissal of the indictment pursuant to an invalid signature would be appropriate, especially when you consider that Fitzgerald intends to allege an abuse of the grand jury process.

Middle District of Pennsylvania Chief U.S. District Judge Matthew Brann wrote in August that there must be more than a “technical defect” or “harmless error.”

“[T]o dismiss an indictment, a defendant generally must show that some kind of misconduct prejudiced him with regard to the grand jury proceeding,” Brann wrote. “In cases involving the validity of the Government attorney’s signature, courts have generally reviewed the facts of the grand jury proceeding to determine whether the indictment signer was acting alone in conducting the grand jury proceeding.”

With career EDVA prosecutors refusing to sign their names, Halligan was the only prosecutor to sign the Comey indictment, under the title “United States Attorney,” and she was reportedly the only prosecutor to present the case to the grand jury.