A federal appeals court ruled Friday that John Sarcone was not lawfully serving as acting U.S. Attorney for the Northern District of New York when he issued subpoenas to New York Attorney General Letitia James’s office last year. The U.S. Court of Appeals for the Second Circuit issued a 2–1 decision, affirming a lower court’s ruling that Sarcone’s appointment violated the Federal Vacancies Reform Act (FVRA).
The court held that Sarcone’s tenure was invalid because he was not the first assistant U.S. attorney when the vacancy arose in February 2025. Under the FVRA, only the first assistant in place at the time of a vacancy may automatically assume the acting role. Sarcone had been serving as acting U.S. attorney since February 2025, but his 120-day temporary appointment expired in July 2025. The Trump administration then appointed him as first assistant U.S. attorney, which he argued allowed him to serve indefinitely as acting U.S. attorney. The appeals court rejected this interpretation.
Key Developments:
- The Second Circuit’s ruling invalidates the subpoenas Sarcone issued to James’s office as part of investigations into cases she brought against President Donald Trump and the National Rifle Association (NRA).
- The Justice Department announced plans to appeal the decision directly to the U.S. Supreme Court, setting up a potential showdown over the executive branch’s authority to appoint acting officials without Senate confirmation.
Legal Rationale and Dissent
The majority opinion, written by Judge Guido Calabresi, stated that the text, structure, and history of the FVRA all support the conclusion that only the first assistant in place at the time of a vacancy may serve as acting U.S. attorney. Judge Michael Park dissented, arguing that the appointments were valid under the law.
Background and Timeline
Sarcone took over as acting U.S. attorney in February 2025 after his predecessor left office. Under the FVRA, an acting U.S. attorney may serve for up to 120 days unless the Senate confirms a permanent replacement. After the 120-day period expired in July 2025, the Trump administration appointed Sarcone as first assistant U.S. attorney, which he claimed allowed him to automatically move into the acting role for an additional 210 days. The government also designated him as a special attorney to conduct grand jury proceedings, further extending his authority.
The appeals court ruled that these appointments did not comply with the FVRA’s requirements. The decision does not address the merits of the underlying investigations into James’s office but focuses solely on the legality of Sarcone’s appointment.
Reactions and Next Steps
A Justice Department spokesperson stated that the administration intends to seek Supreme Court review, framing the issue as part of broader efforts to use alternative legal mechanisms to bypass Senate confirmation for key prosecutorial roles. The spokesperson did not specify a timeline for the appeal.
The ruling raises questions about the validity of other actions taken by Sarcone during his tenure, including his role in the investigations into Trump and the NRA. Legal experts note that the decision could have implications for similar appointments made by the Trump administration in other federal districts, where acting officials were installed without Senate confirmation.
Implications for Federal Prosecutorial Appointments
The case highlights ongoing disputes over the Federal Vacancies Reform Act, which governs temporary appointments to high-level federal positions. The law was designed to prevent indefinite acting appointments without congressional oversight. Critics argue that the Trump administration’s approach—using the first assistant and special attorney designations to extend acting roles—circumvents the Senate’s constitutional role in confirming presidential nominees. Supporters of the administration’s actions contend that the FVRA’s language is ambiguous and that the appointments were a necessary workaround to maintain continuity in federal law enforcement.
The Supreme Court’s eventual decision could clarify the scope of the FVRA and set a precedent for future acting appointments in federal agencies.