DOJ asks Second Circuit to back end-run installation of Trump's disqualified New York US attorney pick

MANHATTAN (CN) — The Trump administration asked the Second Circuit on Monday to weigh in on whether President Donald Trump's handpicked nominee for the Albany U.S. attorney was authorized to issue subpoenas against New York's Democratic Attorney General Letitia James, a longtime Trump foe.

While John Sarcone III was disqualified in January after a federal judge found his appointment to the U.S. Attorney's Office for the Northern District of New York to have been "unlawful" because the Justice Department attempted to extend his 120-day interim period indefinitely, he currently leads the office under the title of first assistant U.S. attorney.

Appealing the lower court's ruling to the Second Circuit, the Department of Justice maintains Sarcone's initial appointment was valid and that federal vacancy law permits him to continue leading the Albany-based U.S. attorney's office.

During oral arguments, all three judges sitting on the panel for the Manhattan-based Second Circuit signaled skepticism that the administration had indeed properly installed Sarcone as the top federal prosecutor as he directed the investigations into James and her office.

U.S. Circuit Judge Guido Calabresi quickly interjected Justice Department attorney Henry Whitaker: "I want to cut to the chase. First, I agree with you that it would be very desirable for the president to be able to appoint people to this."

"Second, it's also clear that Congress, for its own reason, has put in any number of restrictions on this," the Bill Clinton-appointed judge added.

U.S. Circuit Judge Michael Park, a Donald Trump appointee, asked the Justice Department counsel, "How big is the loophole here, in terms of the time? Are we talking about 210 days here, or are we talking about a renewable 210 days after another, after 100?"

Whitaker replied that it depends on whether the departure of an interim U.S. attorney creates a vacancy.

U.S. Circuit Judge Araújo Kahn, a Joe Biden appointee, asked Whitaker how the maneuvering to keep Sarcone installed was not "basically end-running a system that our founding fathers put in place for a checks and balance system."

"It's not an end run in the slightest," Whitaker replied.

James' office, meanwhile, argued the Trump administration circumvented the Senate confirmation process of Sarcone specifically to advance Trump's retaliatory probe against James and her state prosecutorial office to advance without any scrutiny from the Senate.

Don Verrilli from Munger, Tolles & Olson LLP, who argued for the Office of the Attorney General of New York, cited Alexander Hamilton in the Federal Papers, explaining the Senate exercises a vital checking function that limits a president's ability to place executive power "in the hands of unfit and obsequious characters."

"It's been 469 days since the inauguration of the current president," Verrilli told the three-judge panel. "There is no nominee for the office of the United States attorney for the Northern District of Newport. That is a striking thing. There's no nominee to this day, and I think that tells you a very great deal. I think what it tells you is that it is obvious that everything has happened here with respect to Mr. Sarcone, is being done for the express purpose of avoiding the Senate's role, the role that Hamilton prescribed, described that the Senate should play in situations like this, in order to ensure that people are fit for the office."

The New York Attorney General's Office accused the Trump administration in appeals briefs of violating the Constitution through an elaborate scheme to install loyalists who can wield the full prosecutorial power of a U.S. attorney "indefinitely without any need for Senate confirmation and notwithstanding the strictures of the Federal Vacancies Reform Act."

"Allowing the Department of Justice to install acting U.S. attorneys who will weaponize the federal criminal justice system to conduct vendettas against a president's political rivals is as obvious an affront to the Constitution's foundational principles as one could imagine," the New York Attorney General's Office wrote in an appeals filing. "Yet that is precisely what President Trump and DOJ are trying to do."

James, a Democrat, has been a fervent critic of Trump since his first presidential term. She's accused him in his second term of going on a "revenge tour" by using the executive branch to punish his political opposition.

The Second Circuit panel did not immediately rule from the bench.

Attorney General Pam Bondi named Sarcone, formerly acting U.S. attorney for the Northern District of New York, in July 2025 as a special attorney to the attorney general as well as first assistant U.S. attorney — effectively extending his interim term as the district's top prosecutor indefinitely.

James' office moved to quash the subpoenas the following month, arguing the subpoenas were issued in retaliation and with intent to harass her and her office.

One month after Sarcone's disqualification in January, Donald Kinsella was sworn in as the United States Attorney for the Northern District of New York in a private ceremony on Feb. 11, but he was swiftly removed from the post just hours later.

Kathleen Sweet, president of the New York State Bar Association, called Kinsella's abrupt firing "an insult to separation of power."

"He was terminated by Deputy Attorney General Todd Blanche just hours later and obviously, without cause," Sweet wrote in a statement the same day Kinsella was removed. "This firing highlights the administration's disdain for established constitutional processes such as vetting nominees, conducting hearings on their qualifications and submitting their nominations to the Senate for confirmation."

Sarcone demoted himself to first assistant attorney as he awaits the Second Circuit's ruling on his appeal. He remains the highest-ranking prosecutor in the Northern District of New York.

U.S. law normally requires Senate confirmation for U.S. attorneys, and only allows people to serve in the position without that confirmation for limited time periods. Under Trump, however, the Justice Department has sought to leave unconfirmed prosecutors in their positions indefinitely, often through novel personnel maneuvers that multiple courts have later deemed to be improper.

Fellow Trump loyalist Alina Habba resigned as New Jersey acting U.S. attorney in December 2025, shortly after a federal appeals court upheld her disqualification for circumventing congressional approval.

Another federal judge late last year tossed the Trump administration's case against James Comey, arguing Lindsey Halligan — then the interim U.S. attorney for the Eastern District of Virginia — was on the job illegally. She was tapped by Trump to replace Erik Siebert, the former prosecutor for the district who left his position after refusing to sign off on a separate indictment against James.

Halligan left the Justice Department in January, though the Trump administration has formally nominated her as U.S. attorney for Virginia's Eastern District. She's unlikely to be confirmed by the Senate, however, due to objections from the Old Dominion's two Democratic senators.

The Sarcone-signed subpoenas at the heart of the New York attorney general's underlying challenge, which are no longer active, reportedly concerned whether James' office violated the president's civil rights when she sued him for lying about his net worth to swindle banks and insurers into getting more favorable business loans. James won the suit in 2024, and Trump owes roughly half a billion dollars for the judgment against him, which is currently on appeal.

The second subpoena reportedly arose from James' longstanding corruption case against the National Rifle Association — another case James won last year after a jury found that the gun group's former frontman, Wayne LaPierre, misappropriated donations to fund his gaudy lifestyle. She had previously sought to dissolve the organization altogether, but was unsuccessful in that bid.

James is likely one of Trump's top targets after her case against the president's business empire successfully marked Trump a fraud and threatens to deplete a chunk of his net worth. Trump hasn't minced words with his criticism of James, calling her a "horrible, horrible human being" and a "total crook" at a press conference earlier in 2025.

James kicked off her civil fraud investigation into Trump shortly after she took office in 2019, often proclaiming throughout the case that "no one is above the law."

Sarcone's office has recently taken on the Justice Department's defense against fired prosecutor Maurene Comey's lawsuit against the Trump administration over her abrupt termination after the Manhattan U.S. attorney's office recused itself from the case due to the Comey family's deep ties to the office.