Trump US attorney pick can no longer investigate one of the president’s top foes, court rules

Federal Court Strikes Down Trump-Era US Attorney Appointment, Blocking Probe Into New York’s Top Prosecutor

Sandego.net – A split federal appeals panel has declared that the acting US Attorney overseeing the Northern District of New York holds his position illegally, effectively stripping him of authority over the ongoing criminal investigation into New York Attorney General Letitia James. The Second Circuit’s 2-1 ruling, handed down Friday, confirms that the appointment of John Sarcone to the acting role was invalid under federal succession law and bars him from participating in the probe targeting one of President Trump’s most prominent political adversaries.

The decision represents the third separate federal appeals court to rule that the Trump administration’s method of filling US attorney vacancies — bypassing Senate confirmation by designating internal lawyers as “first assistants” and then delegating acting authority — violates the Federal Vacancies Reform Act. Each ruling has carried different practical consequences depending on whether the challenged attorney acted alone or alongside other properly appointed prosecutors.

A Pattern of Rejections Across the Circuits

The legal challenge to Sarcone’s appointment traces back to a January ruling by a lower court, which found the designation unlawful. The Second Circuit has now affirmed that judgment. In a brief statement posted to social media on Friday, the Justice Department pushed back sharply:

“We disagree with the court’s decision, and intend to take this case to the Supreme Court.”

The department’s posture mirrors its response to two earlier circuit rulings. Earlier this week, the Ninth Circuit concluded that Sigal Chattah, serving as US attorney for Nevada, also holds her post unlawfully, and DOJ signaled it would seek Supreme Court review. In December, the Third Circuit invalidated the appointment of Alina Habba as US attorney for New Jersey. Next month, the Fourth Circuit is scheduled to hear oral arguments on whether a district court’s finding that Lindsey Halligan’s appointment as US attorney for the Eastern District of Virginia was unlawful should stand.

Varied Consequences for Pending Cases

The downstream effects of these rulings have not been uniform. Where the challenged US attorney was the sole prosecutor driving a case, courts have dismissed the resulting charges or investigative tools. That outcome applied to both the subpoena and separate criminal indictment aimed at Attorney General James, and to the perjury indictment of former FBI Director James Comey. In other matters, however, indictments survived because assistant US attorneys who were independently and lawfully appointed had participated in the underlying proceedings.

Sarcone himself has not stepped away from the New York office. He continues to serve as First Assistant US Attorney and, as recently as Thursday, held a press conference to announce a new criminal complaint charging a woman with an ISIS-inspired plot to detonate explosives at the New York State Capitol in Albany. Chattah, likewise, remains at the helm of the Nevada office in her capacity as First Assistant. Halligan, by contrast, resigned from the Virginia post after sustained pressure from federal judges in that district; she had been the prosecutor who presented Comey’s initial indictment to a grand jury. In New Jersey, DOJ ultimately abandoned a three-person team it had assembled to replace the already-resigned Habba after a judge compelled sworn testimony about the team’s structure. The chief judge of the district then selected the successor US attorney in consultation with the department.

The Statutory Dispute at the Heart of the Ruling

The majority opinion, authored by Judge Maria Araujo Kahn (nominated by President Biden) and joined by Judge Guido Calabresi (nominated by President Clinton), centered on a narrow question of statutory interpretation under the Federal Vacancies Reform Act. The judges concluded that only the person already serving as First Assistant at the precise moment a US attorney vacancy opens may assume the acting role automatically. An administration that installs a new first assistant after the vacancy arises, they reasoned, is making a discretionary personnel choice untethered from any congressional criterion.

“Designating a First Assistant after the vacancy is not automatic succession at all; it is a deliberate and discretionary choice made without any of the criteria Congress enacted.”

“The Government’s reading thus rewards evasion and penalizes compliance—a strange design for a statute Congress enacted to stop the Executive from skirting the Vacancies Act.”

The majority also noted that the government itself had conceded Sarcone can no longer serve as Acting US Attorney because his tenure surpassed the 210-day ceiling imposed by the statute. The opinion observed that, as of the decision date, the President had not submitted any nominee to the Senate for the post, yet Sarcone continued functioning as the operative head of the office.

The Dissent

Judge Michael Park, a Trump appointee on the Second Circuit, wrote a dissent agreeing with the Justice Department’s reading of the succession rules.

“The better reading of the statute is that any first assistant to a vacant office becomes acting officer, subject only to the time limits in § 3346.”

Section 3346 of the Federal Vacancies Act caps an acting officer’s service at 210 days unless the Senate confirms a nominee. Park argued that the majority’s structural analysis was, in substance, a policy preference dressed in statutory language.

Broader Implications

The cascade of circuit rulings places the Supreme Court squarely in the path of a question with sweeping implications for executive-branch personnel management. If the Court sides with the majority opinions, the administration’s practice of filling dozens of US attorney vacancies through internal designations — a practice that has generated dozens of acting appointments across the country — would be deemed unlawful, potentially reopening or invalidating a wide range of prosecutions and investigative actions initiated during the interim period. If the Court adopts the dissent’s reading, the administration retains flexibility to staff vacant offices quickly, subject only to the statutory time limit, without waiting for Senate action. Either outcome will reshape how future administrations navigate the gap between a US attorney departure and a confirmed successor.