Court says prosecutor who subpoenaed Letitia James was unlawfully appointed

A federal appeals court has declared that the top federal prosecutor in New York's Northern District was unlawfully serving in his role when he issued subpoenas to Attorney General Letitia James. The ruling, made by the U.S. Court of Appeals for the 2nd Circuit, found that John Sarcone's appointment in 2025 did not adhere to the Federal Vacancies Reform Act.

In a 2-1 decision, the majority judges concluded that Sarcone was not lawfully acting as the U.S. attorney when he secured the subpoenas as part of investigations into James. Judge Guido Calabresi wrote that "Text, structure, and history all point the same way," asserting that only the First Assistant in place when a vacancy arises can become the acting officer under the Vacancies Act, and Sarcone did not meet this condition.

The Justice Department has signaled its intent to appeal the ruling directly to the Supreme Court. This move underscores a broader conflict concerning the Trump administration's repeated efforts to circumvent federal law and maintain their chosen prosecutors in office without the required Senate confirmation.

Sarcone, a former campaign attorney for President Trump, was initially appointed as interim U.S. attorney for the Northern District of New York. When his initial 120-day term expired, district judges declined to extend his tenure. Subsequently, then-Attorney General Pam Bondi appointed him as a special attorney and named him first assistant U.S. attorney, a move the court has now deemed unlawful under the Federal Vacancies Reform Act.

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We hold that only the First Assistant in place when a vacancy arises may become the acting officer under [the Vacancies Act]. Sarcone was not.