The Situation on Tuesday contemplated monetary policy by abuse of the criminal investigative apparatus.
Today, let’s take a look at a government brief in a case in Richmond, Virginia in which the Justice Department is actually in the right and yet manages to behave with almost mind-boggling impropriety anyway.
The case is not a high-stakes, politically-freighted matter. It is not one that begs issues of national policy. It is not one in which some left-wing advocacy group has sued the government challenging a Trump administration initiative.
Indeed, it is precisely the fact that the government is actually right—or right-ish—on the law and the case is so marginal that makes the Justice Department’s brief so remarkable.
I don’t know how to say it more politely, so I’ll be blunt: The brief is really assholeish.
It comes in the criminal case of a man named Davante Aandrell Jefferson, who was indicted back in December for carjacking, use of a firearm in a crime of violence, and attempted bank robbery.
A little more than a month after Jefferson’s indictment, the judge in the case—U.S. District Judge David J. Novak—entered an ill-advised and inappropriate, if amusingly cheeky, order directing the government to brief the question of why the name Lindsey Halligan keeps appearing on government briefs in the case with the title “United States Attorney.”
Judge Novak is not a liberal activist. He was appointed to the bench by President Trump during his first term. But the order is certainly aggressive. It opens by declaring that, “This matter comes before the Court on its own initiative”—which is almost never a good sign. And Judge Novak declares that in the indictment, “Ms. Halligan identified herself . . . as the United States Attorney for this District . . . despite a binding Court Order entered by Senior United States District Judge Cameron McGowan Currie on November 24, 2025, in which Judge Currie found that the ‘appointment of Ms. Halligan as Interim U.S. Attorney violated 28 U.S.C. § 546 and the Appointments Clause of the U.S. Constitution.’” While the matter is under appeal, “no stay has been issued in conjunction with that appeal [so the order] remains the binding precedent in this district and is not subject to being ignored.”
Judge Novak’s sua sponte order goes on to direct Halligan, within seven days, to file a brief explaining the “identification of herself as the United States Attorney, notwithstanding Judge Currie’s contrary ruling.” The order directs her to “set forth the reasons why this Court should not strike Ms. Halligan’s identification of herself as United States Attorney from the indictment in this matter.” And it orders that she “shall further explain why her identification does not constitute a false or misleading statement.” As to this latter point, Judge Novak pointedly cites a number of ethical rules that prohibit lawyers from making false statements to courts.
The message is clear: Judge Novak demands that Halligan explain what her name is doing on the indictment, and he makes clear that he’s contemplating professional action against her.
Now before looking at the government’s brief, let’s consider the matter for a moment in the abstract. It is exceedingly unwise for the government to keep appointing unqualified, inappropriate U.S. attorneys in a fashion whose legality is reasonably subject to judicial question and then leave them in place after courts do so. If I were advising the attorney general, I would warn her in no uncertain terms that she is buying herself a world of hurt by letting Halligan continue to represent herself as the U.S. attorney even after Judge Currie McGowan’s rulings in the James Comey and Letitia James cases.
That said, as I mentioned on Lawfare Live the other day in dialogue with Roger Parloff, it’s not at all clear to me that the government isn’t within its rights to keep letting Halligan pretend to be U.S. attorney—at least until the Fourth Circuit upholds Judge Currie McGowan’s ruling on the lawfulness of her appointment:
After all, the opinions do not order that Halligan be fired—nor could they. They merely dismiss the specific criminal cases before the specific judge in question. Moreover, a ruling by a district judge is not binding precedent on any other district court. It merely binds the two parties to the specific case in that specific case. This case is a little bit complicated in that regard because the court routed all of the challenges to Halligan’s appointment to Judge Currie McGowan, so she effectively ruled on this for all the judges in the EDVA. But still, one district judge does not rule over others.
That’s why, when Judge Aileen Cannon absurdly ruled that Special Counsel Jack Smith had been unlawfully appointed, it did not remove Smith from office or prevent him from proceeding with other cases. It merely provoked the dismissal of the classified documents case against Trump in her court.
In other words, there are reasonable answers to Judge Novak’s question, and there are reasonable ways for the government to point out to the judge that his order is inappropriate.
One of which is not a temper tantrum.
I’m honestly not sure how else to describe the brief filed in response to Judge Novak’s order, submitted not just by Halligan and two of her assistant United States attorneys but also by Attorney General Pam Bondi and Deputy Attorney General Todd Blanche.
The brief opens as follows:
In violation of the Rules of Criminal Procedure and the principle of party presentation, the Court has initiated a sua sponte inquisition into whether it should strike Ms. Halligan’s title from the Government’s signature block. The order launching this quest reflects a fundamental misunderstanding of Judge Currie’s orders dismissing the indictments in United States v. Comey, No. 1:25-cr-272 and United States v. James, 2:25-cr-122 and flouts no fewer than three separate lines of Supreme Court precedent on elementary principles like the role of federal courts, the effect of district court rulings, and the nature of our adversarial system.
Adding insult to error, the order posits that the United States’ continued assertion of its legal position that Ms. Halligan properly serves as the United States Attorney amounts to a factual misrepresentation that could trigger attorney discipline. The Court’s thinly veiled threat to use attorney discipline to cudgel the Executive Branch into conforming its legal position in all criminal prosecutions to the views of a single district judge is a gross abuse of power and an affront to the separation of powers.
The bottom line is that Ms. Halligan has not “misrepresented” anything and the Court is flat wrong to suggest that any change to the Government’s signature block is warranted in this or any other case.
What follows is eight additional pages making substantially the same—and quite valid—legal arguments I sketched out above, all laced with this sort of vituperative, condescending, and self-righteous rhetoric of precisely the sort with which it is never, ever appropriate to address a federal judge.
This is not the way the Biden administration talked to the conservative judges who were the thorns in its side. It is not the way conservative administrations have spoken to liberal activist judges they loathed. It is not the way Jack Smith’s prosecutors talked to Judge Cannon, though I have no doubt they believed her to be a corrupt actor.
It simply is not the way advocates speak to courts.
Ever.
The fact that the government here is right on the law actually makes the behavior worse, not better.
When one is confident in the merits of one’s legal argument, after all, one should be able to present that argument with minimal resort to rhetoric, let alone this sort of personal rhetoric.
Bondi, Blanche and Halligan might respond that their rhetoric here merely responds to impropriety on the part of Judge Novak, who really did start the whole thing with a needless provocation.
But judges err in their management of cases all the time, and arrogance and imperiousness is part of the persona—as this song memorably parodies:
The remedy on the part of the advocate for the arrogant district judge who knows not the limit of his or her role is patient advocacy, answering questions, and when those strategies fail, resort to the appellate process. The Justice Department, in particular, has no business dressing down a federal district judge as though he were some mere employee who had gotten out of line.
For one thing, it is an immensely counter-productive behavior. Unlike other advocates, the Justice Department is a repeat player in every single federal court in the country. When it behaves this way, it poisons the relationship between the department and the courts in which its attorneys practice.
But more fundamentally, Judge Novak’s order, even if legally mistaken on important points, was an entirely predictable response to the ongoing provocation that Halligan’s presence in office has represented from the beginning. We have discussed the mounting irritation among the judges of the Eastern District of Virginia with Halligan’s continued service several times on Lawfare Live’s weekly roundup. And that irritation is by no means limited to Judge Novak.
Put simply, if you are going, as the executive branch, to install a wildly unqualified officer in a sensitive position with the express intent that she will engage in wildly unethical activity in office and you do so this in arguable violation of the law, and she proceeds to engage in activity far more wildly unethical than anyone could have imagined, and then you leave her in office after a court declares her service unlawful, you can’t wax too indignant when a federal judge gets annoyed and behaves imperiously in asking for an explanation.
Except that apparently you can.
At least in Pam Bondi’s Justice Department in the second Trump administration.
So here’s my amicus brief to Judge Novak—a friendly piece of advice as to how to handle this matter from someone who is wholly sympathetic to the judge’s anger at the department’s behavior: Leave this one to the Fourth Circuit. Judge Currie McGowan’s ruling is going up on appeal. It will be affirmed, whereupon Halligan’s presence in office will become untenable, as Alina Habba’s did in New Jersey after the Third Circuit’s ruling on her appointment. In the meantime, unfortunately, she gets to dress herself in borrowed robes and cosplay as U.S. attorney. Save the rage for a case in which it matters—and in which the law is on your side.
Because The Situation continues tomorrow.
