Second Circuit Voids Subpoenas by Interim U.S. Attorney, Citing Vacancies Act
A federal appeals court ruled that the Justice Department bypassed Senate confirmation rules when installing a top prosecutor in New York, invalidating subpoenas issued under his authority.
It is a common misconception that the executive branch has unlimited flexibility to install temporary leaders at federal agencies when a Senate-confirmed official steps down. In reality, the Federal Vacancies Reform Act of 1998 imposes strict timelines and succession rules to prevent the White House from bypassing the Senate's constitutional "advice and consent" role.[1][5]
On Friday, the U.S. Court of Appeals for the Second Circuit enforced those boundaries, ruling 2-1 that John A. Sarcone III was unlawfully serving as the acting U.S. Attorney for the Northern District of New York.[1][2][3]
The decision invalidates grand jury subpoenas Sarcone's office had issued targeting New York Attorney General Letitia James, a frequent political adversary of the administration. Because Sarcone lacked lawful authority to lead the office, the court concluded that the coercive legal actions taken under his sole direction were void.[2][4]
The mechanics of the case center on how the Justice Department attempted to keep Sarcone in power after his initial, legally permitted temporary window expired. When a Senate-confirmed U.S. Attorney leaves office, federal law allows the Attorney General to appoint an interim replacement for 120 days.[1][5]
Sarcone reached the end of that 120-day limit in July 2025. At that point, the law shifts the authority to the local federal district court judges, who can appoint a temporary leader until the Senate confirms a permanent nominee.[1][5]
In the Northern District of New York, the judges declined to appoint a replacement. To keep Sarcone in charge, then-Attorney General Pam Bondi appointed him as a "Special Attorney" and designated him as the office's First Assistant U.S. Attorney.[2][4]
The Justice Department argued that this new title automatically elevated him back to the acting U.S. Attorney role under a different provision of the Vacancies Act. However, the Second Circuit rejected that maneuver.[1][2]
Writing for the majority, Judge Guido Calabresi stated that the law's automatic succession provision only applies to a First Assistant who was already holding that specific job at the moment the vacancy occurred. Because Sarcone was named First Assistant months after the vacancy arose, the court ruled he was ineligible to automatically assume the acting role.[1][4]
"The Government's reading thus rewards evasion and penalizes compliance," the majority wrote. The judges warned that accepting the Justice Department's interpretation would allow an administration to "install virtually anyone as the acting officer simply by naming that person First Assistant."[1][4]
Judge Michael Park dissented, arguing that the statute should be read to allow any First Assistant to step into the acting role, regardless of when they were appointed to the deputy position. He contended that the majority's interpretation could hamper the executive branch during periods of political transition and Senate deadlock.[1][2]
The immediate consequence of the ruling is the quashing of the subpoenas directed at Letitia James's office, which were issued as part of investigations into her handling of civil cases against the president and the National Rifle Association.[2][4]
The decision represents the third time a federal appeals court has struck down the administration's recent methods for installing acting U.S. Attorneys. Similar rulings have disqualified prosecutors in New Jersey and Nevada, where the Justice Department used identical procedural maneuvers.[3][5]
Viewpoints in depth
The Majority Opinion
The court's majority argued that the Justice Department's maneuver violated the clear intent of the Vacancies Act.
Judges Guido Calabresi and Maria Araújo Kahn concluded that the Federal Vacancies Reform Act was specifically designed to prevent the executive branch from indefinitely bypassing the Senate. They ruled that the automatic succession provision for a First Assistant only applies if the person already held that position when the vacancy occurred. Allowing the administration to retroactively name someone First Assistant to keep them in power, they argued, would render the law's time limits meaningless and strip the Senate of its constitutional role.
The Dissenting View
Judge Michael Park argued that the statute's text does not restrict when a First Assistant must be appointed.
In his dissent, Judge Park contended that the law simply states that the First Assistant shall perform the duties of the vacant office, without specifying that they must have held the title prior to the vacancy. He argued that the majority's interpretation places unnecessary constraints on the executive branch's ability to manage federal agencies during transitions, and that the Justice Department's procedural steps technically complied with the letter of the law.
The Justice Department
The DOJ maintains that its delegation of authority was lawful and necessary to maintain leadership.
The Justice Department has consistently argued that the Attorney General possesses broad statutory authority to delegate prosecutorial duties to any appointed "Special Attorney." They contend that even if the Vacancies Act's primary mechanisms were exhausted, this delegation power provides an independent legal basis for the acting U.S. Attorney to issue subpoenas and manage the office. The DOJ plans to appeal the ruling to the Supreme Court to defend this interpretation of executive authority.
Key points
- The Second Circuit ruled 2-1 that John Sarcone III was unlawfully serving as acting U.S. Attorney in New York.
- The court found his appointment violated the Federal Vacancies Reform Act's strict succession rules.
- Grand jury subpoenas issued by Sarcone's office targeting NY Attorney General Letitia James were voided.
- The ruling prevents the administration from bypassing Senate confirmation by retroactively naming loyalists as First Assistants.
What we don’t know
- Whether the Supreme Court will agree to hear the Justice Department's appeal.
- How the ruling will affect other ongoing federal investigations initiated under Sarcone's tenure.
- Whether the administration will attempt to nominate a permanent U.S. Attorney for the district.
How we got here
February 2025
The Senate-confirmed U.S. Attorney for the Northern District of New York leaves office.
March 2025
John Sarcone III is appointed as the interim U.S. Attorney for a 120-day period.
July 2025
Sarcone's 120-day limit expires; the DOJ names him First Assistant to keep him in power.
January 2026
A federal district judge rules Sarcone is serving unlawfully and quashes his subpoenas.
August 2026
The Second Circuit Court of Appeals upholds the lower court's ruling in a 2-1 decision.
- Judicial Majority
- Argues the law prevents the executive branch from bypassing the Senate by using procedural loopholes.
- Executive Branch Advocates
- Argues the Attorney General has broad authority to delegate duties to ensure federal offices remain functional.
- Legal Watchdogs
- Focuses on the constitutional balance of power and the necessity of Senate confirmation for high-level prosecutors.
Perspectives this story doesn't cover
- Career prosecutors within the Northern District of New York who must manage the office's daily operations amid the leadership dispute.
- Defendants in other criminal cases who might use this ruling to challenge their own indictments.
Sources
[1]U.S. Court of Appeals for the Second CircuitJudicial MajorityIn re Grand Jury Subpoenas to the Office of the New York State Attorney General
Read on U.S. Court of Appeals for the Second Circuit →
[2]Courthouse News ServiceJudicial MajorityNew York federal appeals panel foiled the appointment of President Donald Trump's pick
Read on Courthouse News Service →
[3]CNNLegal WatchdogsTrump US attorney pick can no longer investigate one of the president's top foes, court rules
Read on CNN →
[4]Sunday Guardian LiveExecutive Branch AdvocatesAppeals Court Rules Trump-Backed Prosecutor Unlawfully Appointed In Letitia James Probe
Read on Sunday Guardian Live →
[5]Above the LawLegal WatchdogsFederal Vacancies Act Appointments Face Judicial Scrutiny
Read on Above the Law →
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