FILE PHOTO: Lawyers for former U.S. President Donald Trump; James Trusty, Lindsey Halligan and John Rowley, depart the U.S. Justice Department after meeting with Justice Department officials over the Trump Mar-a-Lago classified documents case, after Trump's lawyers last month sent the department a letter asking for a meeting with U.S. Attorney General Merrick Garland, in Washington, U.S. June 5, 2023. REUTERS/Sarah Lynch/File Photo

CNN reports the criminal cases filed against two of President Donald Trump's biggest political adversaries is facing a "critical test" in court Thursday. But the choice of court appears to be factor, according to a former prosecutor.

A federal judge is hearing arguments in a bid from former FBI Director James Comey and Georgia prosecutor Letitia James to disqualify Trump’s prosecutor Lindsey Halligan and jettison her indictments as wrongful.

“Ordinarily, the way we get U.S. attorneys is the president nominates and then the Senate confirms,” said Senior Legal Analyst, Elie Honig. “But federal law tells us that where that process has not happened, the attorney general has the authority to choose somebody to serve as a temporary U.S. attorney for up to 120 days. After that 120 days, it then goes to the federal district court judges of that district to choose somebody.”

That's what happened in the Eastern District of Virginia with former U.S. attorney Eric Siebert serving his 120 days before he retired under pressure from Trump because he failed to find significant grounds upon which to build prosecution against Trump’s targets.

“And at that point, the attorney general put in a new person, Lindsey Halligan, who's now the U.S. attorney. So Comey and James are arguing that was improper. The law only allows the AG to make one of those 120-day appointments, not one after another after another,” said Honig.

But CNN anchor Wolf Blitzer pointed out that Comey’s case is “now being heard by a judge from another district," and asked Honig why.

“Because, as we said before, the Eastern District of Virginia judges, they had a part in this,” Honig said. “They were the ones who chose Eric Siebert at the end of his first 120 days. So because they had some small role in this, all of those judges technically have a conflict of interest.”

“They've done the right thing here,” Honig said. “They've decided we the judges here in Virginia, can't hear the case. That's why they've brought in a federal judge from a different federal district down to South Carolina to hear this matter.”

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