The Second Circuit Court of Appeals ruled Friday that the Justice Department's top federal prosecutor in upstate New York was "not lawfully serving" when he subpoenaed the state attorney general's office, a 2-1 decision the DOJ now plans to challenge before the Supreme Court.
John Sarcone, the acting U.S. attorney for the Northern District of New York, had used grand jury subpoenas to demand records from New York Attorney General Letitia James's office related to her civil fraud case against President Trump and a separate case involving the National Rifle Association. A three-judge panel found that Sarcone held his position in violation of the Federal Vacancies Reform Act, the federal law that governs how the executive branch fills vacant Senate-confirmed posts on a temporary basis, and upheld a lower court order throwing out those subpoenas entirely.
The ruling marks the latest in a string of federal court decisions across the country that have struck down the administration's method of installing lead prosecutors without Senate confirmation. Courts in California, Nevada, New Jersey, and Virginia have reached similar conclusions, each finding that the Justice Department's personnel maneuvers sidestepped the legal process Congress put in place.
The timeline matters. Sarcone served a 120-day term as interim U.S. attorney, the standard window allowed under federal law. That term expired last July. When district judges in New York declined to extend his appointment indefinitely, then-Attorney General Pam Bondi changed his title to "special attorney", a move that allowed him to stay in the role without the court approval or Senate confirmation the law otherwise requires.
By last August, Sarcone was issuing subpoenas to the New York attorney general's office. One targeted records from James's $464 million civil fraud judgment against Trump, a judgment that a separate appeals court had already voided as excessive in August 2025. The other sought information about a case involving the NRA.
In January, U.S. District Judge Lorna Schofield blocked the subpoenas and disqualified Sarcone outright. Her reasoning was blunt. She found that the Justice Department's workaround violated federal law, and that the executive branch had used that unlawfully obtained power to target a political adversary.
Judge Schofield wrote in her January ruling:
"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. Subpoenas issued under that authority are invalid."
Friday's appeals court decision affirmed that finding on every count.
Judge Guido Calabresi, a Clinton appointee, wrote the 39-page majority opinion. He was joined by Judge Maria Araújo Kahn, a Biden appointee. Their central holding turned on the mechanics of the Federal Vacancies Reform Act, which spells out how acting officials can temporarily fill Senate-confirmed positions.
The FVRA permits only a First Assistant who is already in place when a vacancy arises to step into the acting role automatically. Sarcone did not meet that test. The Justice Department tried to get around the problem by using what the court called "general delegation authority", essentially handing Sarcone the powers of the office without formally appointing him to it.
Calabresi rejected that approach in direct terms, writing in the majority opinion:
"To install someone in a vacant office through a general delegation authority that [federal statute] expressly forbids, is to install an acting officer by another name. The FVRA forbids it."
The delegation, as the Washington Examiner reported, "functionally made him the acting officer in all but name," according to Calabresi. The court treated the title change and delegation as a transparent attempt to keep Sarcone in a role he no longer had legal authority to hold.
The pattern extends well beyond Albany. National Review's Andrew C. McCarthy noted that Sarcone's disqualification mirrored the earlier removal of Lindsey Halligan from the Eastern District of Virginia in November, calling it part of "the president's campaign to circumvent the Constitution's prerequisite of Senate consent for top appointees."
The administration has faced a broader wave of adverse federal appeals court rulings on multiple fronts, from executive orders to enforcement policy. The Sarcone case fits a recurring pattern: the executive branch pushes the boundaries of its appointment authority, and federal judges push back.
Judge Michael Park, nominated during Trump's first term, dissented in a 24-page opinion. He argued that the majority had misread the law and imposed constraints on executive authority that Congress never intended.
Park wrote:
"By concluding otherwise, the majority imposes new limits on executive authority, upsetting the balance that Congress struck in the FVRA."
Park's argument rests on a different reading of how far delegation authority extends when a vacancy exists. He contended that the FVRA does not prohibit the kind of delegation Bondi used and that the majority's interpretation narrows the executive branch's ability to keep federal offices functioning during transition periods.
The dissent matters for practical reasons. A 2-1 split, with a Trump-appointed judge on the losing side, gives the Justice Department a clear hook for Supreme Court review, and the DOJ wasted no time signaling its intentions.
A Justice Department spokesperson told The Hill on Friday that the department disagrees with the ruling and "intend[s] to take this case to the Supreme Court." The speed of the announcement suggests the administration views this as a test case for its broader appointment strategy, not an isolated loss in one district.
The stakes go beyond Sarcone and beyond Albany. If the Supreme Court sides with the Second Circuit, the administration's ability to install acting U.S. attorneys through delegation and title changes collapses nationwide. If the Court reverses, the executive branch gains significant new flexibility to staff federal prosecutor offices without Senate confirmation, a power that future administrations of either party would almost certainly use.
Courts have already disqualified Trump-appointed prosecutors in multiple jurisdictions. The Fourth Circuit has scheduled a September hearing on dismissed criminal cases tied to the same appointment disputes, and similar challenges continue to work through the federal system.
For now, the subpoenas targeting James's office are dead. Sarcone is disqualified from any further involvement in the related criminal investigations. And the federal vacancies law, a statute most Americans have never heard of, sits at the center of a constitutional fight over who gets to wield prosecutorial power and how they get there.
The administration has also clashed with courts on immigration policy, with mixed results depending on the circuit and the issue. But the appointment cases carry a different weight: they go to the question of whether the officials wielding federal power were ever authorized to wield it at all.
Federal circuit courts have also weighed in on enforcement policy at houses of worship and other contested areas, but the prosecutor appointment fight is heading to the highest court first, and the outcome will shape how every administration fills vacant offices for years to come.
When the executive branch cannot explain how its own prosecutor got the job, the subpoenas that prosecutor signed are not worth the paper they are printed on. The Supreme Court will now decide whether that principle holds.
