MICHEL MARTIN, HOST:
For more on where these cases against James Comey and Letitia James might go from here, we called Kim Wehle. She is a constitutional scholar who teaches law at the University of Baltimore and researches and writes about executive power. Professor Wehle, thanks so much for joining us once again.
KIM WEHLE: Good morning.
MARTIN: So what's your top-line reaction to this ruling that the prosecutor in these cases was illegally appointed?
WEHLE: I think it shows the slapdash, goal-oriented way this Justice Department is operating. Prosecutors are supposed to follow the facts to see if a crime is committed. This White House is directing DOJ to target an individual, and because the statute of limitations is about to expire, they did it in a sloppy way that's inconsistent with the rules.
MARTIN: What does this mean for other cases that Lindsey Halligan has brought as U.S. attorney? Are they also likely to be challenged or maybe even dropped?
WEHLE: Yeah. The judge basically said this is the equivalent of pulling some random person off the street and having them go in and, you know, secure an indictment. She really went after the core idea that Halligan had any governmental power to do what she did. So under that ruling, any work as a interim U.S. attorney that Halligan did is invalid and needs to be redone, so long as the statute of limitations still allows it.
MARTIN: So the ruling has to do with limits on how long temporary prosecutors can serve. Why does that matter?
WEHLE: Well, under the Constitution, principal officers have to be appointed by the advice and the consent of the Senate unless Congress gives that power to someone else in the government. Here, U.S. attorneys are inferior officers. And so Congress set up a system for vacancies and said attorney general gets 120 days, and after that, you can extend that by a federal judge. And so the 120 days expired with her predecessor. The government's taking the position that that can just go indefinitely - that essentially, Donald Trump can just bypass appointment confirmation by the Senate indefinitely and just keep putting a hundred people in for 120 days. The judge said that's not consistent with the Constitution or with the statutory scheme that requires a federal judge to step in.
MARTIN: So the White House says that this is a technicality, and it says the Justice Department is going to appeal. What would be the basis for their appeal? Because it would seem that the law is clear here.
WEHLE: Yeah. It's - the basis for the appeal is to kind of get around the plain language of the statute through sort of a tortured argument. Bondi also made this argument that she, quote, ratified it after the fact - that somehow she can step in as attorney general and fix - put some Band-Aids on all the legal problems under the Constitution and the statute. I don't think that's going to fly, but, you know, so long as you lose something, you can appeal. That's the only real standard for an appeal, is to be a loser on a particular issue.
MARTIN: But what happens to the indictments against Comey and Letitia James if the appeal is successful? I mean, people - I think many people will remember that the statute of limitations in the Comey case was literally at the 12th hour.
WEHLE: Yeah. There's another law that says you can extend for six months. There's this grace period if an indictment is dismissed. I think under this ruling, the argument is - would be there's no six-month grace period because there was no actual indictment. There was no valid indictment. It's like pulling some - again, the Starbucks barista and asking him to actually do it. That's kind of the problem. For Letitia James, these alleged crimes are within the statute of limitations. So I expect they'll just go back with a new grand jury, and she'll be facing a similar process.
MARTIN: Well, they seem to - both parties seem to suggest that they expected that as well. So, you know, to that end, though, the president has been very vocal in his demand that prosecutors find some way to charge people he does not like who have criticized him or who he has determined is an enemy. Does this ruling intervene in that in any way?
WEHLE: You know, I don't think so. I mean, it does sort of throw the egg on his face and his Justice Department. It's a bit embarrassing for them, but I don't think they're going to make the same mistake twice. I think they're going to make sure that whoever does these things has some legal authority that is stronger in court. So he can still use the Justice Department this way, which is a tragedy, and it's very dangerous for all Americans.
MARTIN: Well, just to that end, I wanted to end where they're - you know, the former FBI director in his video responding to these events said, look, that this affects everybody. This isn't just about me. Do you agree with that? And if so, why?
WEHLE: I do. I mean, we can't be complacent about this kind of thing. You know, prosecutors at the FBI have powers that regular people do not. They can take your liberty away, and there's even a death penalty under federal law. We don't want people that are in that job picking and choosing winners and losers based on your point of view, based on your politics, based on your religion, who you associate with. And it can trickle down if this is allowed to go forward the way it's arranged right now.
MARTIN: That's Kim Wehle. She's a professor of law at the University of Baltimore. Her most recent book is "Pardon Power: How The Pardon System Works - And Why." Professor Wehle, thank you.
WEHLE: Great to be with you. Transcript provided by NPR, Copyright NPR.
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