Yet another top federal prosecutor installed by the Trump administration is unlawfully serving in their role, this time in the Northern District of New York, a judge has found. That finding follows similar rulings against Lindsey Halligan’s tenure in the Eastern District of Virginia and against other purported top prosecutors in Nevada, New Jersey and California.
The latest ruling came Thursday against John Sarcone III, whom the administration sought to install as the acting U.S. attorney for the Albany-based Northern District. He had requested that subpoenas be issued to the office of New York Attorney General Letitia James, apparently in connection with a federal investigation into civil cases she brought against Donald Trump and the National Rifle Association.
James moved to quash the subpoenas, leading to the ruling that Sarcone was unlawfully serving.
“Mr. Sarcone’s service was and is unlawful because it bypassed the statutory requirements that govern who may exercise the powers of a U.S. Attorney,” U.S. District Judge Lorna Schofield wrote.
The Obama-appointed judge noted that U.S. attorneys must be nominated by the president and confirmed by the Senate. She said that while federal law provides limited alternatives to temporarily fill vacancies, none of them authorized Sarcone to serve as acting U.S. attorney when he sought the subpoenas in question.
Granting the state’s motion to quash, the judge said Sarcone is disqualified from any further involvement in the prosecution or supervision of any investigation related to the Trump and NRA matters.
Schofield noted the possibility that the federal government could attempt to reissue the subpoenas under the authority of a lawful prosecutor. If that happens, then James could still move to quash them on other grounds, such as her claims that they intrude on state sovereignty and are retaliatory. But the judge said she didn’t need to address those claims yet, because the litigation could be resolved, for now at least, on the threshold issue of the legality of Sarcone’s tenure. James, of course, figures in the Virginia appointment litigation as well, because she was one of Halligan’s targets for prosecution. Finding in November that Halligan was unlawfully appointed, a judge dismissed the indictments she secured against James and former FBI Director James Comey. The administration is appealing that ruling. If it revives the cases, either with a successful appeal or a lawful prosecutor, the government would still face significant pretrial litigation, including the defense claims that their prosecutions are unlawfully vindictive, underscoring the retaliatory nature of the administration’s efforts in both Virginia and New York. In the meantime, the rulings against the installation of these prosecutors have served as a check of sorts, however mild, on the Trump administration’s vengeful ambitions. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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