ALBANY, N.Y. (AP) — President Donald Trump’s efforts to appoint political loyalists as top federal prosecutors recently sparked legal debate, with a judge ruling that his handpicked U.S. attorneys in New Jersey, eastern Virginia, Nevada and Los Angeles were serving illegally.
Now, another federal judge is poised to consider New York Attorney General Letitia James’ argument that the government also twisted the law to allow John Sarcone to serve as acting U.S. attorney for upstate New York.
A court hearing is scheduled for Thursday in which James will challenge Sarcone’s authority to oversee a Justice Department investigation into her regulatory lawsuit against Trump and the National Rifle Association.
James, a Democrat, has challenged the legality of subpoenas issued in the Sarcone investigation, which her lawyers say are part of a baseless investigation and prosecution of Trump’s perceived enemies.
They argue in court documents that because Sarcone has “no legal authority” to serve as U.S. attorney, any legal steps he takes in that capacity are unlawful.
“The subpoena must be quashed and Sarcone must be disqualified from participating in this investigation,” they wrote.
Justice Department lawyers said Sarcone’s appointment was correct and the motion to block the subpoena should be denied.
The fight in New York and other states centers on the legality of unorthodox tactics pursued by the Trump administration that are seen as unlikely to win approval from the U.S. Senate.
The hearing before U.S. District Judge Lorna G. Schofield in New York comes a week after a federal judge in Virginia dismissed the indictments against James and former FBI Director James Comey. The judge concluded that the appointment of interim U.S. Attorney Lindsey Halligan, who brought the charges, was unlawful. The Justice Department is expected to appeal.
A federal appeals court ruled on Monday that Trump’s former personal attorney Alina Habba was disqualified from serving as New Jersey’s top federal prosecutor.
Under federal law, presidential nominees for U.S. attorneys need to be confirmed by the Senate. If the position becomes vacant, the U.S. Attorney General may appoint someone to serve temporarily, but the appointment will expire after 120 days. If that deadline passes, the district’s judge can retain the interim U.S. attorney position or appoint someone of his or her choice.
Sarcone’s appointment did not go down that path.
Trump has not yet nominated anyone to serve as U.S. attorney for the Northern District of New York. U.S. Attorney General Pam Bondi appointed Sarcone to serve as interim U.S. attorney in March. When his 120-day term ended, the district’s judge refused to let him stay on.
Bundy then took the unusual step of appointing Sarcone as special prosecutor and then as first assistant U.S. attorney for the district, a move that federal officials said enabled him to serve as acting U.S. attorney.
James’ attorneys called the move the culmination of a federal law governing the filling of vacant executive branch positions.
The New York subpoena seeks records related to James’ civil case against Trump over alleged fraud in personal business dealings. and records of litigation involving the National Rifle Association and two senior executives.
Justice Department lawyers argued in court filings that the U.S. attorney general has the “unquestioned authority” to appoint attorneys within his department and delegate his functions to those attorneys. They argued that even though Sarcone did not properly serve as acting U.S. attorney, he could still conduct the grand jury investigation as a special prosecutor.
Sarcone was part of Trump’s legal team during the 2016 presidential campaign and served as the Northeast and Caribbean administrator for the U.S. General Services Administration during Trump’s first term.
Haba also served as interim U.S. attorney. When her appointment expired, the New Jersey judge replaced her with a career prosecutor who had been her second-in-command. Bundy subsequently fired the judge-appointed prosecutor and renamed Haba the acting U.S. attorney.
A similar situation unfolded in Nevada, where a federal judge disqualified the Trump administration from selecting a federal prosecutor in the state. A federal judge in Los Angeles has disqualified Southern California’s acting U.S. attorney from several cases after finding that he served longer than the law allows.
