Federal judge disqualifies 5th Trump-appointed acting U.S. attorney

A federal judge Thursday ruled that John Sarcone, President Donald Trump’s temporary pick as acting U.S. attorney for the Northern District of New York, has been serving unlawfully in his post for months.

The decision from U.S. District Judge Lorna Schofield, appointed by former President Barack Obama, makes Sarcone the fifth Trump-appointed acting U.S. attorney deemed illegitimate by federal courts during the president’s second term.

Like many of Trump’s other temporary U.S. attorneys, Sarcone has used his post to target Trump’s political enemies. 

In August, he attempted to serve subpoenas against New York Attorney General Letitia James’ Office that were, in part, retaliation for its successful civil fraud lawsuit against the Trump Organization for fraudulent business practices.

James, one of Trump’s foremost adversaries, challenged Sarcone’s subpoenas, arguing that they could not be executed because he was serving unlawfully as acting U.S. attorney when he sought them.

In her order Thursday, Schofield agreed with the argument from James’ office, ruling that “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.”

The judge noted that U.S. attorneys must be nominated by the president and confirmed by the Senate. When a vacancy occurs, federal law allows the president to fill the position, but only for a limited amount of time.

If a U.S. attorney is not officially confirmed to fill the vacancy before the end of that time limit, federal law then gives judges in the federal district the authority to appoint a permanent attorney.

In July, judges in the Northern District of New York refused to extend Sarcone’s tenure. However, that same day the Department of Justice shifted titles and made  personnel changes within the U.S. Attorney’s Office for the Northern District of New York to keep Sarcone in power.

“Federal law does not permit such a workaround,” Schofield wrote. ““When the Executive branch of government skirts restraints put in place by Congress and then uses that power to subject political adversaries to criminal investigations, it acts without lawful authority.”

The judge added that a “growing body of persuasive authority” reinforced her conclusion against Sarcone, noting that several other judges have also rejected the DOJ’s attempt to circumvent the confirmation process to keep loyalists atop key U.S. attorney offices. 

Schofield cited the Third Circuit Court of Appeals’ disqualification of Alina Habba, one of Trump’s former lawyers, as temporary U.S. attorney for New Jersey. After the appeals court ruling, Habba resigned.

The judge also noted that a federal judge recently ruled that Trump and Attorney General Pam Bondi had violated the Constitutional and federal vacancy laws to appoint Lindsey Halligan, who also formerly worked as one of Trump’s personal attorneys, as acting U.S. attorney of the Eastern District of Virginia. 

Halligan, however, has continued to lay claim to the post — even dropping “acting” or “interim” from her title in court filings, though she was never confirmed by the Senate or federal judges in the Eastern District of Virginia.

Earlier this week, a federal judge ordered Halligan to explain how, in light of her disqualification, her continued claim to the position didn’t constitute making false or misleading statements to a court.

In addition to Halligan and Habba, courts have also ruled that Sigal Chattah and Bill Essayli were illegally serving as the acting U.S. attorneys for the District of Nevada and the Central District of California, respectively. However, both remain at their posts.

Sarcone also sought to subpoena James’ office for its long-running cases against the National Rifle Association (NRA). 

The subpoenas were part of investigations into whether James’ office violated constitutional or legal rights through its civil suits against Trump and the NRA.

Before he tried to bring the subpoenas against James, Sarcone appeared to violate internal DOJ policies around commenting on ongoing investigations by publicly confirming the department’s investigation into James over mortgage fraud allegations.

This story has been updated with additional details throughout.