A federal appeals court on Friday dealt another setback to the Trump administration's efforts to bypass Senate confirmation for top prosecutors, ruling that John Sarcone was not legally serving as the acting U.S. attorney for the Northern District of New York when he issued subpoenas to state Attorney General Letitia James's office.
The 2nd U.S. Circuit Court of Appeals, in a 2-1 decision, affirmed a lower court's order that disqualified Sarcone and quashed the subpoenas. The ruling centers on the Federal Vacancies Reform Act (FVRA), which governs how temporary appointments to Senate-confirmed positions can be made.
Court: Sarcone's Appointment Violated Federal Law
Judge Guido Calabresi, writing for the majority, explained that the FVRA only allows a first assistant who was already in place when the vacancy arose to automatically assume the acting role. Sarcone was not in that position, and the Justice Department's attempt to designate him as a first assistant or delegate the powers of the office was 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 wrote in the 39-page opinion. “The FVRA forbids it.”
Judge Maria Araújo Kahn, a Biden appointee, joined Calabresi's opinion. Judge Michael Park, a Trump nominee, dissented in a 24-page opinion, arguing that Sarcone was legally authorized to seek the grand jury subpoenas and that the majority's ruling “imposes new limits on executive authority.”
Subpoenas Targeting James's Investigations
The dispute began last August when Sarcone subpoenaed James's office for information related to her civil fraud investigation into Trump and his business, as well as a separate case involving the National Rifle Association. U.S. District Judge Lorna Schofield blocked the subpoenas in January and disqualified Sarcone, finding the Justice Department's workaround violated federal law.
Sarcone's 120-day term as interim U.S. attorney expired last July, and 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—a move the appeals court rejected.
DOJ Vows Supreme Court Appeal
A Justice Department spokesperson told The Hill that the department disagrees with the decision and “intend[s] to take this case to the Supreme Court.” The ruling follows a series of similar defeats for the administration in other circuits, where courts have invalidated attempts to install loyalists as U.S. attorneys in California, Nevada, New Jersey, and elsewhere.
The 2nd Circuit's decision adds to the legal uncertainty surrounding the administration's use of the FVRA, which has become a flashpoint in the broader battle over executive power. A similar end-run in Nevada was also blocked by a federal court, underscoring the pattern.
Legal experts say the ruling could have implications beyond the Northern District, potentially affecting other pending cases where acting prosecutors were installed under questionable authority. The administration's aggressive interpretation of the FVRA has been a key tool in reshaping the federal judiciary and law enforcement, but courts have repeatedly pushed back.
As the case heads to the Supreme Court, the outcome could clarify the limits of presidential authority over temporary appointments—a question that has divided lower courts and could have lasting consequences for the separation of powers.
