Appeals court affirms top federal prosecutor in Albany ‘not lawfully serving’

A federal appeals court panel ruled Friday that John Sarcone was “not lawfully serving” as the top federal prosecutor in upstate New York when he subpoenaed New York Attorney General Letitia James’s (D) office last year.

The 2nd U.S. Circuit Court of Appeals upheld Sarcone’s January disqualification as the acting U.S. attorney for the Northern District of New York in a 2-1 decision, affirming a lower court order that also quashed the subpoenas.

The ruling is yet another blow to the Justice Department’s efforts to test the limits of federal vacancy law and bypass Senate confirmation.

“We hold that Sarcone was not serving as Acting U.S. Attorney when he obtained the subpoenas because the FVRA permits only a First Assistant already in place when the vacancy arises to become the acting officer automatically,” Judge Guido Calabresi wrote in a 39-page opinion, using an abbreviation for the Federal Vacancies Reform Act.

Calabresi, a Clinton nominee, was joined in the majority by the Biden-appointed Judge Maria Araújo Kahn. Judge Michael Park, nominated during President Trump’s first term, dissented.

A spokesperson for the Justice Department told The Hill on Friday that they disagree with the court’s decision and “intend to take this case to the Supreme Court.”

The FVRA states the first assistant to any Senate-confirmed officer assumes the acting role by default whenever a vacancy occurs.

The Trump administration has sought to leverage the automatic succession rule to install top federal prosecutors by designating individuals as first assistants — the No. 2 role in U.S. attorney’s offices — or, in some cases, simply delegating them the powers of the job.

But the 2nd Circuit majority found both of those maneuvers to be unlawful.

“To install someone in a vacant office through a general delegation authority that [federal statute] expressly forbids, is to install an acting officer by another name,” Calabresi noted. “The FVRA forbids it.”

After Sarcone’s 120-day term as interim U.S. attorney expired last July, district judges in New York declined to appoint him to the role indefinitely. Then-Attorney General Pam Bondi subsequently changed his title to “special attorney,” allowing him to remain in the acting position.

Last August, Sarcone subpoenaed James’s office for information about its civil fraud investigation into Trump and his business and another case involving the National Rifle Association.

U.S. District Judge Lorna Schofield blocked the subpoenas in January and disqualified Sarcone, finding that the Justice Department’s workaround violated federal law.

Park disagreed with Friday’s ruling, arguing in a 24-page dissent that Sarcone was legally authorized to seek the grand jury subpoenas.

“By concluding otherwise, the majority imposes new limits on executive authority, upsetting the balance that Congress struck in the FVRA,” the Trump appointee wrote.

The 2nd Circuit’s decision follows a series of recent appeals court rulings that have invalidated the Trump’s administration’s attempts to install loyalists as lead federal prosecutors in California, Nevada, New Jersey and elsewhere.