Appeals Court Voids Subpoenas From Unlawfully Appointed NY Federal Prosecutor

On Friday, a federal appeals court in New York delivered a sharp rebuke to the Trump administration's strategy for installing prosecutors without Senate approval. The court ruled that John Sarcone, who has led the U.S. Attorney's Office in Albany for more than a year, was serving unlawfully when he issued subpoenas to state Attorney General Letitia James last August. The decision, handed down by the 2nd Circuit Court of Appeals in a 2-1 vote, hinges on a technical but consequential reading of federal law—one that could unravel similar appointments across the country.

Sarcone's path to power reveals the administration's ingenuity in working around the Senate confirmation process. He was initially appointed as interim U.S. attorney in 2025, a role that carries a 120-day limit. When that clock ran out, judges in the district refused to extend his tenure. But the Justice Department had a backup plan. Then-Attorney General Pam Bondi appointed Sarcone as a "special attorney" and named him first assistant U.S. attorney—a move designed to trigger a different federal law, the Federal Vacancies Reform Act, which allows a deputy to serve as acting U.S. attorney for up to 210 days. The maneuver was transparent in its intent: keep Sarcone in power by any legal means available.

The appeals court saw through it. Writing for the majority, Judge Guido Calabresi explained that the Vacancies Reform Act only permits a deputy who is already in place when a vacancy opens to be elevated to the acting role. Because Sarcone was named first assistant months after the U.S. attorney position became vacant, he never qualified. "Text, structure, and history all point the same way," Calabresi wrote. "We hold that only the First Assistant in place when a vacancy arises may become the acting officer under the Vacancies Act. Sarcone was not." The court concluded that any subpoenas Sarcone issued while unlawfully serving are void.

James had challenged the subpoenas after they arrived in August 2025, arguing they were part of politically motivated investigations into her office's handling of cases involving the National Rifle Association and President Trump himself. A district judge had already ruled in January that Sarcone was not lawfully serving, but the Justice Department pressed ahead. Within hours of a judicial panel appointing a new prosecutor to replace Sarcone in February, the administration fired that person, allowing Sarcone to effectively continue leading the office while the appeal proceeded.

Calbrese's opinion carries a warning about the broader implications of the administration's approach. Allowing the government to name someone first assistant after a vacancy arises, he wrote, would let "the President install virtually anyone as the acting officer simply by naming that person First Assistant, regardless of whether they possessed any of the qualifications Congress required." The ruling "rewards evasion and penalizes compliance" with the law as written.

The Sarcone case is not isolated. The Trump administration has deployed this same multi-step mechanism in Nevada, New Jersey, California, and Virginia to keep preferred prosecutors in office. In New Jersey, the administration repeatedly tried to keep Alina Habba, another Trump lawyer, as top federal prosecutor until a federal appeals court ruled her appointment unlawful in December. In eastern Virginia, a judge threw out indictments against former FBI Director James Comey and Attorney General James after finding that Lindsey Halligan, Trump's former personal lawyer, was unlawfully appointed. In Nevada, an appeals court ruled that Sigal Chattah, the administration's pick for U.S. attorney, was serving unlawfully after remaining in the job past the 120-day limit. In Los Angeles, Bill Essayli was found to have served unlawfully for months, disqualifying him from supervising certain criminal cases.

Despite these setbacks, Sarcone, Chattah, and Essayli have remained in their roles under the first assistant U.S. attorney title—a technical designation that may or may not shield them from further legal challenge. The Justice Department announced Friday that it intends to appeal the 2nd Circuit's decision directly to the Supreme Court, setting up a constitutional confrontation over the scope of presidential appointment power and the independence of federal prosecutors. The stakes extend beyond personnel: the Court's decision could determine whether the administration's workaround strategy survives, or whether the Senate's role in confirming federal prosecutors remains a meaningful check on executive power.