A federal judge is considering challenging the appointment of the prosecutor who charged James Comey and Letitia James

ALEXANDRIA, Va. (AP) — Lawyers for former FBI Director James Comey and New York Attorney General Letitia James asked a judge Thursday to dismiss the cases against them, saying the prosecutor who obtained the indictments was illegally appointed to the position.

Read more: Judge in Comey case reprimands prosecutors, orders them to turn over investigative records

U.S. District Judge Cameron McGowan Currie said she expects to make a decision by Thanksgiving on appeals to Lindsey Halligan’s appointment as interim U.S. Attorney for the Eastern District of Virginia. The decision could help decide the fate of the politically charged cases, which were sponsored by the hastily inaugurated Halligan and together amplified fears that the Justice Department was being used as a weapon to target perceived opponents of President Donald Trump.

Currie also revealed in court that the record of the grand jury proceedings in the Comey case that she reviewed was missing part of it, which she said raises questions about whether Attorney General Pam Bondi could have properly certified the indictment as the Justice Department says she did.

Halligan was appointed to the position at Trump’s request from Bondi in September, a few days before Comey was indicted, in what defense lawyers say is a final attempt to circumvent the constitutional and legal rules governing the appointment of US prosecutors. They say the maneuver aims to ensure that charges are brought against the president’s political opponents after the prosecutor who was supervising the two investigations, but did not bring any charges, was forced to step down.

“Ms. Halligan was the only prosecutor in the grand jury room, and when a sole prosecutor lacks authority, this is not a harmless error,” said Ephraim McDowell, one of Comey’s defense attorneys.

U.S. attorneys, senior federal prosecutors who oversee the Justice Department’s regional locations across the country, are typically nominated by the president and then confirmed by the Senate. Prosecutors have the power to appoint a temporary US attorney who can serve for 120 days, but lawyers for Comey and James said that once that period expires, the law gives federal judges exclusive say over who can fill the vacancy.

The interim US Attorney resigned under pressure

After then-interim U.S. Attorney Eric Seibert resigned in September while facing pressure from the Trump administration to bring charges against Comey and James, Bondi appointed Halligan, a White House aide with no prior prosecutorial experience. The appointment came on the heels of Trump’s post on Truth Social in which he complained to Bondi about the lack of judicial action against his political enemies and said: “Justice must be done now!!!”

He watches: New York Attorney General Letitia James was indicted on fraud charges after pressure from Trump

Bondi appointed Seibert last January to serve as interim US Attorney General. In May, Trump announced his intention to nominate him, and the judges in the Eastern District unanimously agreed after the end of the 120-day period that he should remain in this position.

But after the Trump administration effectively fired him in September, the Justice Department again chose to make a temporary appointment rather than through the courts, something defense lawyers say it is not authorized by law to do.

“If the government wins here, it will never need to go through Senate confirmation again for U.S. attorneys,” McDowell said. He said any dismissal of the indictment should be permanent, with no chance of bringing the case back, to avoid rewarding the government for the violation.

Justice Department defends Halligan’s appointment

The Department of Justice asserts that the law does not expressly prohibit successive appointments of interim U.S. attorneys by the Attorney General. Henry Whitaker, the department’s attorney, said the indictment had been properly returned by a grand jury and should not have been dismissed because of what he described as at most a paperwork or clerical error.

“The grand jury made a decision based on the facts and the law, and they stuck to their oath,” Whitaker said.

He also said that even if there were questions about Halligan’s appointment, they were resolved by the fact that Bundy personally certified the indictment and reviewed the grand jury proceedings. But Judge Currie wondered whether that was possible given that part of the grand jury proceedings presented to her was missing a section for unexplained reasons.

Comey has pleaded not guilty to charges of making a false statement and obstruction of Congress, and James, a Democrat, has pleaded not guilty to mortgage fraud allegations. The challenges to Halligan’s appointment are part of a multi-pronged effort to drop prosecutions before trial. Their lawyers separately argued that the prosecutions were inappropriately retaliatory, were motivated by the president’s personal animus toward their clients, and should therefore be dismissed.

Trump’s history with Comey and James

Comey, as FBI director in the early months of Trump’s first term, angered the president by overseeing an investigation into possible ties between Russia and the 2016 Trump campaign. Trump fired Comey in May 2017. Since then, the two have been vocal rivals, with Comey calling Trump “unethical” and likening him to a Mafia boss, while Trump called Comey a “dishonest ball of goo” and called for him to be punished over the Russia investigation.

Read more: Comey’s lawyers say the case against him is motivated by “personal animosity” toward Trump and should be dismissed

James has been a frequent target of Trump’s wrath, especially since she won a stunning ruling against him and the Trump Organization in a lawsuit alleging that he defrauded banks by overstating the value of his real estate holdings in financial statements. An appeals court overturned the fine, which had swelled to more than $500 million with interest, but upheld a lower court’s ruling that Trump committed fraud.