Before 2025, fake U.S. attorneys weren’t a thing. But in his second term in office, Donald Trump has been attempting to circumvent Senate confirmation along with the requirements of 28 USC § 546 for lackeys in various U.S. Attorneys roles and now it’s a full-blown MAGA trend.
Judges have repeatedly ruled that federal law allows the president to make only one interim appointment (lasting 120 days) as U.S. Attorney in any given federal district, after which the position may only be filled by a Senate-confirmed nominee or a judicially installed placeholder. That basic of statutory interpretation has led to the disqualification of New Jersey “U.S. Attorney”Alina Habba, Eastern District of Virginia’s Lindsey Halligan (no matter what her signature line currently says), Sigal Chattah in Nevada, and Bill Essayli in Southern California.
Today, the club of DQ’d federal prosecutors got a little bigger with the addition of the Northern District of New York’s John Sarcone III. After getting the interim appointment from Trump, Sarcone served his 120 days then a panel of judges declined to extend his role. Trump tried to hand wave this snafu with some appointment shenanigans — Pam Bondi called him a “special attorney” with an “indefinite” term.
But that didn’t fool U.S. District Judge Lorna Schofield. In evaluating subpoenas Sarcone issued to Trump foe New York Attorney General Letitia James, Schofield found Sarcone was illegally squatting in the role. “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,” she wrote, “it acts without lawful authority.”
It’s yet another lesson for the Department of Justice on how appointments work, let’s see if this one sticks.
Read the order below.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.
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