The Situation on Friday posed the question of whether there is any remedy for serial efforts on the part of Lindsey Halligan’s office to obtain an indictment of New York Attorney General Letitia James.
Today, a brief follow-up concerning a federal policy of which I was—in writing that column—unaware and which raises an additional puzzle about Halligan’s conduct.
By my count, Halligan or her designees have asked three grand juries to indict James on three separate occasions. The first time, Judge Cameron McGowan Currie dismissed the case on grounds that Halligan was not lawfully U.S. attorney and thus had no authority to seek the indictment. The second time, a grand jury in Norfolk reportedly rejected the charges. This week, yet a third grand jury—this one in Alexandria—reportedly did the same.
It is this third grand jury that raises the issue of Section 9-11.120 A of the Justice Manual, which used to be called the U.S. Attorney’s Manual. I had never read this rather obscure passage, which was brought to my attention over the weekend. I note that it is Justice Department policy and supposedly binds prosecutors working the James case. It reads in its entirety:
A. Approval Required Prior to Resubmission of Same Matter to Grand Jury: Once a grand jury returns a no-bill or otherwise acts on the merits in declining to return an indictment, the same matter (i.e., the same transaction or event and the same putative defendant) should not be presented to another grand jury or resubmitted to the same grand jury without first securing the approval of the responsible United States Attorney (emphasis added).
Now arguably, this passage has no bearing on the second attempt to indict James. After all, that followed a judicial rejection of the indictment, not a grand jury having returned a no-bill or “otherwise act[ing] on the merits in declining to return an indictment.” But the provision seems pretty clearly to preclude take three, which forbids both presenting the matter “to another grand jury” and resubmitting it to the same one without the go-ahead from “the responsible United States Attorney.”
Now the United States attorney—let’s leave aside the question of how responsible she is for the time being—is Halligan, at least according to the Justice Department. But, of course, Judge Currie, in this very case, just declared that Halligan was not lawfully the U.S. attorney.
So I, needless to say, have a few questions:
First, did prosecutors seek approval for resubmitting the case to any “responsible United States Attorney”—as the provision requires—at all or did they simply defy it?
Second, if they did seek and obtained approval for resubmitting the case, who granted it? Specifically, did Halligan—whom Judge Currie just ruled is not the U.S. attorney—grant approval for the third indictment of James?
Third, if that is what happened, is that action not in some tension with Judge Currie’s ruling?
And finally, fourth, if someone other than Halligan approved the resubmission, who was it and what authority does that person have to act as the “responsible United States Attorney” in the Eastern District of Virginia?
Just asking questions.
I posed these questions to Halligan earlier today. I received no reply to my email by the deadline for this column, which I will update if I hear anything from either Halligan or any other “responsible United States Attorney.”
The Situation continues tomorrow.
