A three‑judge panel of the U.S. Court of Appeals for the Second Circuit issued a 2‑1 decision this week that the Trump‑appointed acting U.S. attorney for the Northern District of New York is serving unlawfully. The court affirmed a January district‑court ruling that John Sarcone’s appointment as acting U.S. attorney was invalid, disqualifying him from any role in the ongoing probe of New York Attorney General Letitia James.
Legal background
The Federal Vacancies Reform Act permits only the first assistant who was in place when a U.S. attorney’s post becomes vacant to step into the acting role. The majority opinion, written by Judge Maria Araujo Kahn (nominated by President Joe Biden) and joined by Judge Guido Calabresi (nominated by President Bill Clinton), held that the administration’s practice of designating a new first assistant after the vacancy sidestepped the statutory requirements and the Senate‑confirmation process established by Congress.
Judge Kahn noted that the government’s reading of the statute would “reward evasion and penalize compliance,” a design contrary to the law’s purpose of preventing the executive branch from bypassing Senate oversight.
Impact on ongoing investigations
The ruling means Sarcone may no longer act as the operative head of the U.S. Attorney’s Office in Albany. While he remains the First Assistant U.S. attorney, any actions he took as acting U.S. attorney—such as the recent criminal complaint charging a woman in an ISIS‑inspired plot against the state capitol—are now subject to review. The Justice Department has indicated it will appeal the decision to the Supreme Court.
Similar rulings have emerged in other circuits. Earlier this week, the Ninth Circuit found that the U.S. attorney for Nevada, Sigal Chattah, was serving unlawfully. In December, the Third Circuit held that Alina Habba’s appointment in New Jersey was invalid. The Fourth Circuit is slated to hear arguments next month on the legality of former Trump lawyer Lindsey Halligan’s appointment in the Eastern District of Virginia.
Broader consequences
When an acting U.S. attorney’s status is successfully challenged, the effect on related indictments varies. In cases where the acting attorney acted alone, indictments and subpoenas have been dismissed, such as the subpoena and separate indictment of New York Attorney General James and the perjury indictment of former FBI Director James Comey. In other instances, indictments have survived because other legally appointed assistant U.S. attorneys were involved.
The Justice Department has defended its appointment practice, arguing that naming lawyers as first assistants or special attorneys and then delegating authority complies with the Vacancies Act. However, the majority opinion rejected that argument, emphasizing the statutory limit of 210 days for an acting officer and the requirement that the first assistant at the time of the vacancy be the successor.
Dissenting view
Judge Michael Park, a Trump‑appointed judge on the Second Circuit, dissented, siding with the Justice Department. He argued that any first assistant to a vacant office should become the acting officer, subject only to the 210‑day limit set by the Vacancies Act. Park contended that the majority’s interpretation imposes policy judgments not found in the statute and could hinder the executive branch’s ability to function during transitions.
The case underscores a growing legal battle over the executive’s authority to fill U.S. attorney vacancies without Senate confirmation. With multiple circuits reaching similar conclusions, the issue is likely to reach the Supreme Court, where the balance between executive flexibility and congressional oversight will be tested.
Original reporting: KRDO (Colorado Springs metro) — read the source article.
