A federal appeals court panel expressed skepticism on Monday over the legitimacy of President Donald Trump’s administration appointing top federal prosecutors for extended periods of time without U.S. Senate approval.
Questions about the practice arose before the 2nd U.S. Circuit Court of Appeals as it considered a judge’s decision that First Assistant U.S. Attorney John Sarcone was not lawfully serving as the top prosecutor in the northern district of New York, a ruling that found Sarcone's actions are voidable.
Circuit Judge Maria Araújo Kahn said she was concerned that a president could “basically end running a system that our Founding Fathers put in place for a checks-and-balance system.”
She said it didn’t matter who the president was or which political party was in power.
“That individual can bypass Senate approval of any U.S. attorney by just continuously appointing a first assistant for the purpose of making them active U.S. attorney. When would it end?” she asked.
U.S. District Judge Lorna G. Schofield in Manhattan in February disqualified Sarcone from requesting subpoenas in a probe of New York Attorney General Letitia James.
Sarcone, is among a number of interim U.S. attorneys installed by the administration who judges have found to be unlawfully serving in their positions.
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 courts have later ruled to be improper.
In December, Alina Habbaresigned as the top federal prosecutor for New Jersey after an appeals court said she had been serving in the post unlawfully.
Lindsey Halligan, who pursued indictments against a pair of Trump’s adversaries, left her position as an acting U.S. attorney in Virginia after a judge concluded in November that her appointment was unlawful and that indictments she brought against James and former FBI Director James Comey must be dismissed.
Circuit Judge Guido Calabresi, a member of the appellate panel hearing the case Monday, said that limits of just over 200 days on the amount of time someone can temporarily serve as acting an U.S. attorney would be “meaningless because you can keep naming the same person.”
Calabresi said it was possible the 2nd Circuit may conclude that Sarcone could be appointed by his Washington superiors to carry out a probe of James regardless of his position in the U.S. attorneys office.
Attorney Henry Whitaker, representing the Justice Department, told the three-judge appeals panel in Manhattan that the executive branch used tools given to it by Congress to put Sarcone in charge of the office.
“Congress has provided a number of overlapping mechanisms for the executive branch to provide for the temporary performance for those functions. In this case, the executive branch used two of those methods to fully authorize John Sarcone to issue grand jury subpoenas and to supervise criminal investigations in the northern district of New York,” Whitaker said.
Then-U.S. Attorney General Pam Bondi appointed Sarcone to serve as the interim U.S. attorney for the northern district of New York in March 2025. But when his 120-day term elapsed, judges in the district declined to keep him in the post.
Sarcone stayed on anyway, and while in his position pursued another investigation of James, a Democrat and longtime Trump foe.
When Sarcone changed his title to “first assistant U.S. attorney,” federal judges in the district in February tried to fill the apparent vacancy in the top spot by appointing Donald Kinsella to the post.
Less than a day later, then-Deputy Attorney General Todd Blanche announced his firing in a social media post.
“Judges don’t pick U.S. Attorneys,” the president does, Blanche wrote, adding, “You are fired, Donald Kinsella.”
Attorney Donald Beaton Verrilli Jr., representing the New York attorney general's office, said it was a “striking, striking thing” that nobody has been nominated to be U.S. attorney for the northern district of New York more than a year into Trump's second term as president.
“I think what it tells you it that it is obvious that everything that has happened here with respect to Mr. Sarcone is being done for the express purpose of avoiding the Senate’s role ... to ensure that people are fit for the office. … They want this investigation of our office, and of our attorney general to go forward without any scrutiny from the Senate,” he said.
The judges reserved decision.
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