Second Circuit Voids Subpoenas by Interim U.S. Attorney, Citing Vacancies Act

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]

The Justice Department has announced it intends to appeal the Second Circuit's decision to the Supreme Court, setting up a potential high-court showdown over the limits of executive appointment power.[3][4]

Until the Supreme Court intervenes or the Senate confirms a permanent nominee, the ruling leaves the Northern District of New York without a lawfully recognized acting U.S. Attorney, forcing legally appointed career prosecutors to manage the office's daily operations.[3][4]