Appeals Court Rules Acting U.S. Attorney Was Unlawfully Appointed, Blocking DOJ Subpoenas in Letitia James Probe

A three-judge panel of the U.S. Court of Appeals for the Second Circuit on Aug. 21 upheld a lower-court order finding that John A. Sarcone III was unlawfully serving as acting U.S. attorney for the Northern District of New York when he obtained grand-jury subpoenas directed at New York Attorney General Letitia James’ office. The panel’s 2–1 decision disqualified Sarcone from further involvement in that investigation and left the subpoenas quashed for now. ( )

The appeals court concluded the Justice Department had circumvented the Federal Vacancies Reform Act (FVRA) and related statutory rules by using a series of internal designations after Sarcone’s initial 120‑day interim term expired. The majority — and the district judge whose order the panel affirmed — said the government’s maneuvers improperly replaced the Senate-confirmation process for a U.S. attorney and therefore could not sustain subpoenas issued while Sarcone lacked lawful authority. A Trump‑appointed judge on the panel dissented. ( )

Practically, the ruling blocks the particular subpoenas Sarcone secured as part of a DOJ inquiry into possible criminal conduct tied to civil cases brought by James, and it requires the department to rely on officials who are lawfully empowered if it wants to revive that fact‑gathering. Appeals-court and district-court orders left open the option for the government to reissue subpoenas through a properly authorized prosecutor; DOJ has said it intends to appeal to the Supreme Court. ( )

The Second Circuit’s action is the latest in a string of federal decisions this year limiting the administration’s ability to keep handpicked, unconfirmed prosecutors in charge. Judges in other circuits have found similar appointment schemes unlawful — most prominently rulings involving Trump administration appointees in Nevada and New Jersey — and lower courts have repeatedly pressed DOJ to use nominees who have undergone Senate confirmation or court appointment procedures. Those rulings together have generated a growing legal rule‑of‑law challenge to the department’s staffing tactics. ( )

The Justice Department pushed back immediately. A department spokesperson said it disagreed with the Second Circuit’s decision and would seek review at the Supreme Court, arguing the government had followed permissible steps to maintain leadership while nominees are pending. Legal experts say an emergency appeal could put the issue before the justices quickly if the administration seeks to preserve ongoing investigations. ( )

Beyond the specific prosecutions affected, the rulings have broader consequences for how the executive branch staffs U.S. attorney’s offices and for the timing of high‑profile investigations. Defense lawyers have used the FVRA-based challenges to ask courts to disqualify prosecutors or suppress investigative steps; prosecutors and White House officials say the doctrine should not be read to gut the executive’s ability to keep offices functioning during confirmation delays. The dispute is likely to reach the Supreme Court unless Congress or the administration changes course on nominations or interim appointments. ( )