The Richmond Reckoning: The Fourth Circuit’s Comey/James Skepticism Signals a New Era of Judicial Scrutiny Over Prosecutorial Appointments

When the Fourth Circuit convened in Richmond on September 15 to consider the Justice Department’s bid to revive criminal cases against former FBI Director James Comey and New York Attorney General Letitia James, the panel’s palpable skepticism did more than signal trouble for two politically charged prosecutions. It crystallized a broader judicial trend that should concern every federal prosecutor and defense attorney: courts are increasingly unwilling to treat prosecutorial authority as a black box, particularly when the validity of the prosecutor’s own appointment hangs in the balance.

The immediate dispute centers on whether a DOJ-appointed prosecutor—whose selection has drawn legal challenge—possessed the constitutional and statutory authority to secure indictments against two of the most prominent figures in recent American political life. The lower court dismissed both cases outright, concluding that appointment defects rendered the prosecutions void. The Justice Department’s appeal asks the Fourth Circuit to treat these defects as technical irregularities, curable under the de facto officer doctrine or harmless-error review. Based on the oral argument reported by Reuters, the appellate court appears disinclined to oblige.

The Appointment Clause Is Not a Technicality

For practitioners, the stakes extend far beyond the fates of Comey and James. The case tests the resilience of United States v. Arthrex, Inc., 594 U.S. 1 (2021), and Lucia v. SEC, 585 U.S. 237 (2018), which established that improperly appointed officers cannot wield significant federal power. While those cases arose in administrative contexts, their logic applies with equal force to federal prosecutors, who exercise perhaps the most coercive authority in the American legal system. If the Fourth Circuit affirms the dismissals, it will signal that appointment defects in criminal cases cannot be papered over with retroactive ratifications or procedural workarounds.

The Justice Department’s position relies heavily on the de facto officer doctrine, which historically validated the acts of officials performing duties under color of authority, even if their appointments were later found defective. But the modern Supreme Court has narrowed that doctrine considerably. In Ryder v. United States, 515 U.S. 177 (1995), the Court refused to apply de facto officer protections to military judges whose appointments violated the Appointments Clause, reasoning that the structural protections of the Clause outweigh the administrative inconvenience of invalidating past acts. The Comey/James appeal forces the question: does a prosecutor who secures an indictment while serving under a constitutionally suspect appointment inflict a structural injury that requires dismissal, or merely a procedural hiccup that can be excused?

Practical Implications for Federal Criminal Defense

Defense attorneys should take immediate note. If the Fourth Circuit rules against the government, the decision will provide a roadmap for challenging other prosecutions brought by recently appointed U.S. Attorneys or Special Counsels whose selections bypassed Senate confirmation or violated the Vacancies Reform Act, 5 U.S.C. §§ 3345–3349d. We are likely to see a wave of motions to dismiss in cases where acting officials have served beyond statutory time limits or where appointment paperwork deviated from constitutional requirements.

Moreover, the case highlights the growing judicial discomfort with the Justice Department’s attempts to control the lifecycle of politically sensitive prosecutions. This skepticism mirrors the judicial resistance observed in the Gautam Adani matter, where a federal judge first refused to immediately dismiss charges at DOJ’s request in June, and only relented in August while noting “concerns” about the abandonment of the fraud and bribery prosecution. Together, these cases suggest a federal judiciary increasingly willing to inspect the government’s motives and procedural rigor, rather than rubber-stamping prosecutorial decisions.

The Separation-of-Powers Subtext

Beneath the procedural questions lies a separation-of-powers tension that the Fourth Circuit cannot ignore. The Appointments Clause, U.S. Const. art. II, § 2, cl. 2, serves not merely as a bureaucratic hurdle but as a critical check on executive power. When courts allow improperly appointed prosecutors to maintain indictments, they permit the Executive Branch to circumvent the Senate’s advice-and-consent role, effectively allowing the President to install temporary loyalists who can target political opponents without democratic accountability.

The Fourth Circuit’s apparent skepticism suggests that the judiciary may finally be pushing back against the normalization of acting officials and interim appointments that has characterized recent administrations.

For white-collar practitioners, the implications are particularly acute. If appointment challenges gain traction, they provide a potent tool for delaying or derailing prosecutions during the critical early stages of a case. Unlike speedy trial motions or evidentiary challenges, appointment defects go to the very existence of the prosecution, offering a complete defense that survives appellate review regardless of the underlying merits.

What Comes Next

The Fourth Circuit’s ruling, expected in the coming weeks, will likely turn on whether the court views the appointment defect as jurisdictional or procedural. A jurisdictional ruling would force the government to re-indict, potentially running into statute-of-limitations problems given the age of the alleged conduct. A procedural ruling might allow the government to cure the defect, but only after significant delay and judicial scrutiny.

Either way, the message from Richmond is clear: the era of deference to prosecutorial convenience is ending. Federal judges are reading the Appointments Clause with renewed seriousness, and they are unwilling to allow the Justice Department to treat constitutional requirements as mere formalities. For defense counsel, the time to audit your clients’ charging documents for appointment vulnerabilities is now. For prosecutors, the warning is equally stark: dot your i’s and cross your t’s, or watch your case evaporate on a technicality that isn’t technical at all.