Federal Appeals Court Questions Trump’s Prosecutorial Appointments
In a significant legal development, a federal appeals court scrutinized the Trump administration’s practice of appointing interim U.S. attorneys without Senate confirmation. This issue was brought to the fore as the 2nd U.S. Circuit Court of Appeals examined the legitimacy of John Sarcone’s role as the acting top prosecutor in New York’s northern district.
Circuit Judge Maria Araújo Kahn expressed concerns about the potential circumvention of the checks-and-balance system established by the Founding Fathers. She questioned the implications of a president being able to bypass Senate approval by continuously appointing first assistants as acting U.S. attorneys, asking, “When would it end?”
U.S. District Judge Lorna G. Schofield disqualified Sarcone in February from subpoena requests in a probe involving New York Attorney General Letitia James.
This case is part of a broader pattern where several interim U.S. attorneys, appointed by the Trump administration, have been ruled as unlawfully serving. Normally, U.S. attorneys require Senate confirmation, with allowances for temporary appointments without confirmation being strictly time-bound. However, the Justice Department under Trump attempted to keep unconfirmed prosecutors in their roles indefinitely, a strategy that has faced legal challenges.
Alina Habba, the former top federal prosecutor for New Jersey, stepped down last December after an appeals court ruled her appointment unlawful. Similarly, Lindsey Halligan left her acting U.S. attorney position in Virginia after a judge ruled her appointment was not legitimate, leading to the dismissal of indictments she pursued against former FBI Director James Comey and others.
Circuit Judge Guido Calabresi noted that the 200-day limit for acting U.S. attorneys could be rendered ineffective if the same person is repeatedly appointed. The court is considering whether Sarcone could be appointed by higher-ups in Washington to continue his investigation into James, irrespective of his standing in the U.S. attorney’s office.
Justice Department attorney Henry Whitaker argued that the executive branch used congressional mechanisms to authorize Sarcone’s role. “Congress has provided a number of overlapping mechanisms for the executive branch,” Whitaker stated, emphasizing the legitimacy of Sarcone’s actions under these provisions.
Sarcone was initially appointed as interim U.S. attorney for New York’s northern district by then-U.S. Attorney General Pam Bondi in March 2025. However, after his term expired, district judges declined to extend his appointment. Despite this, Sarcone continued his role and engaged in another investigation of Letitia James, a known adversary of Trump.
Following Sarcone’s title change to “first assistant U.S. attorney,” federal judges appointed Donald Kinsella to the position, only for him to be dismissed by then-Deputy Attorney General Todd Blanche, who asserted on social media, “Judges don’t pick U.S. Attorneys,” adding, “You are fired, Donald Kinsella.”
Representing the New York attorney general’s office, attorney Donald Beaton Verrilli Jr. highlighted the lack of a formal nomination for the U.S. attorney position in New York’s northern district during Trump’s second term, suggesting a deliberate avoidance of Senate scrutiny.
The court has not yet reached a decision on the case.
