A federal appeals court has affirmed that the Justice Department's acting U.S. attorney in upstate New York held no legal authority when he issued subpoenas targeting the state attorney general's office, a ruling the DOJ vows to challenge at the Supreme Court.
A three-judge panel on the 2nd U.S. Circuit Court of Appeals ruled 2-1 Friday that John Sarcone was "not lawfully serving" as acting U.S. attorney for the Northern District of New York when he subpoenaed New York Attorney General Letitia James's office last August. The subpoenas sought information about James's civil fraud investigation into Donald Trump and his business, as well as a separate case involving the National Rifle Association.
The majority opinion, written by Judge Guido Calabresi, a Clinton nominee, and joined by Biden-appointed Judge Maria Araújo Kahn, upheld a lower court order from January that disqualified Sarcone and quashed the subpoenas. U.S. District Judge Lorna Schofield had found that the Justice Department's method of keeping Sarcone in the role violated federal law. The appeals court agreed.
At issue is the Federal Vacancies Reform Act, the federal law Congress wrote to govern how the executive branch fills top positions temporarily while the Senate considers permanent nominees. The 2nd Circuit held that the law permits only a first assistant already in place when a vacancy arises to step into the acting role automatically. The administration's approach, designating individuals as first assistants or delegating them the powers of the job, amounted to an end-run around that requirement, the court found.
Judge Calabresi did not hold back in the 39-page majority opinion. He framed the administration's maneuvering as an attempt to circumvent the very statute designed to check temporary appointments.
"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. The FVRA forbids it."
The timeline tells the story. Sarcone's 120-day term as interim U.S. attorney expired last July. District judges in New York then declined to appoint him to the role indefinitely. Rather than accept that outcome, then-Attorney General Pam Bondi changed Sarcone's title to "special attorney," a move designed to let him remain in the acting position. Within weeks, Sarcone used that authority to issue the subpoenas targeting James's office.
The majority found both maneuvers unlawful, the initial designation-as-first-assistant approach and the subsequent delegation of powers. The ruling means the subpoenas carry no legal force.
The administration has faced similar confrontations with federal courts over prosecutorial appointments in multiple jurisdictions. The 2nd Circuit's decision follows a string of appeals court rulings invalidating the administration's attempts to install its preferred lead federal prosecutors in California, Nevada, and New Jersey.
Judge Michael Park, nominated during President Trump's first term, filed a 24-page dissent arguing that Sarcone was legally authorized to seek the grand jury subpoenas. Park warned that the majority was rewriting the boundaries Congress set.
"By concluding otherwise, the majority imposes new limits on executive authority, upsetting the balance that Congress struck in the FVRA."
Park's dissent reflects a genuine tension in the law. The Federal Vacancies Reform Act was designed to give the executive branch flexibility to keep government running between Senate confirmations, not to freeze agencies when a nominee is pending. Whether the majority or the dissent has the better reading of that balance is now heading to the highest court in the land.
A Justice Department spokesperson told The Hill on Friday that the department disagrees with the ruling and intends to take the case to the Supreme Court. That appeal will test whether the justices share the 2nd Circuit's narrow reading of the statute, or whether they side with Park's view that the majority invented limits Congress never wrote.
The dispute carries weight well beyond upstate New York. If the Supreme Court upholds the 2nd Circuit's interpretation, the ruling could constrain how any administration, current or future, fills vacant U.S. attorney slots without Senate confirmation. The pattern of losses across multiple circuits suggests the judiciary is broadly skeptical of the workaround, but a single Supreme Court decision would settle the question nationally.
The practical effect of Friday's ruling is that the subpoenas Sarcone served on Letitia James's office are dead. Those subpoenas sought records related to two matters: the New York attorney general's civil fraud investigation into Trump and his business, and a separate case involving the NRA. The ruling does not address the merits of either investigation, only the authority of the person who demanded the records.
For James, the decision removes an immediate legal obligation to turn over internal files to a federal prosecutor the courts now say had no right to ask for them. The broader question of whether a lawfully appointed U.S. attorney could issue similar subpoenas in the future remains open.
The case also fits a wider pattern of federal courts issuing rulings with significant political consequences, decisions that reshape the boundaries between state and federal authority in real time. Whether those rulings reflect faithful statutory interpretation or judicial overreach depends, in large part, on where one sits.
The administration has shown it will not accept these losses quietly. The DOJ's pledge to bring the case before the Supreme Court signals confidence that the current court will take a more favorable view of executive flexibility. Given the administration's willingness to escalate other legal battles to the high court, the appeal is consistent with a broader strategy of seeking final resolution from a bench the administration believes will be more receptive.
Meanwhile, questions about the conduct and authority of federal prosecutors continue to generate friction between the executive branch and the courts. Each new ruling adds another data point to a debate that has consumed the federal judiciary for months.
The Supreme Court will have the final word. Until then, the 2nd Circuit's message is plain: a title change and a delegation memo do not make an acting officer, and no amount of creative relabeling can substitute for the appointment process Congress required.
If the executive branch wants its prosecutors in place, the path runs through the Senate, not around it. That principle ought to hold no matter who occupies the Oval Office.
