Trump’s US attorney pick can no longer investigate one of his top foes

A divided federal appeals court ruled that President Donald Trump’s U.S. attorney pick in Albany is serving unlawfully and can no longer be involved in the investigation of one of the president’s top foes.

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The 2nd Circuit Court of Appeals, in a 2-1 decision, upheld a lower court’s ruling from January that said the appointment of John Sarcone, then-acting U.S. attorney for the Northern District of New York, is not valid and disqualified him from a probe into the state’s attorney general, Letitia James.

The decision marks the third time a federal appeals court has rejected the Trump administration’s process for naming U.S. attorneys without Senate approval as unlawful.

“We disagree with the court’s decision, and intend to take this case to the Supreme Court,” the Justice Department wrote in a social media post Friday.

Earlier this week, the 9th Circuit Court of Appeals said the U.S. attorney for Nevada, Sigal Chattah, is serving unlawfully. The Justice Department said it would appeal to the Supreme Court. In December, the 3rd Circuit ruled that Alina Habba was not validly appointed U.S. attorney for New Jersey.

Next month, the 4th Circuit will hear arguments over whether a lower court’s finding that the appointment of former Trump lawyer Lindsey Halligan as U.S. attorney for the Eastern District of Virginia was unlawful.

The impact of those decisions has varied. In the cases where the U.S. attorney acted alone, the underlying indictment or subpoenas were dismissed — such as the subpoena and separate indictment of James and the perjury indictment of former FBI Director James Comey.

In other decisions where the U.S. attorneys’ status was successfully challenged, the indictments were not dismissed because other legally serving assistant U.S. attorneys were involved in the underlying cases.

Sarcone continues to serve as first assistant U.S. attorney and held a press conference Thursday to announce a criminal complaint charging a woman in an ISIS-inspired plot to blow up the Capitol building in Albany, New York. Chattah is still leading the Nevada office as first assistant U.S. attorney.

Pressure by judges in Virginia led to the resignation of Halligan, who had presented Comey’s first indictment to a grand jury. In New Jersey, the DOJ abandoned the three-person team named to replace Habba, who had already resigned, after a judge ordered sworn testimony about its structure. The chief judge in New Jersey ultimately named the next U.S. attorney in consultation with the DOJ.

The Justice Department has vigorously defended its appointments and the process it has used — naming its lawyers as first assistants or special attorneys and then delegating them authority to serve as acting U.S. attorneys.

The majority opinion, which rejected the DOJ’s argument, was issued by Judge Maria Araujo Kahn, who was nominated by President Joe Biden, and Judge Guido Calabresi, who was nominated by President Bill Clinton.

They found that the Federal Vacancies Reform Act says only the first assistant in the position at the time the U.S. attorney’s post becomes vacant can step into the role — not someone the administration places into the position to bypass the Senate confirmation process.

“Designating a First Assistant after the vacancy is not automatic succession at all; it is a deliberate and discretionary choice made without any of the criteria Congress enacted,” they wrote.

“The Government’s reading thus rewards evasion and penalizes compliance—a strange design for a statute Congress enacted to stop the Executive from skirting the Vacancies Act,” the majority wrote.

It noted that the government has conceded that Sarcone can no longer serve as acting U.S. attorney because his tenure has exceeded the 210-day limit.

“As of this decision, the President has not submitted a nominee to the Senate and, according to the Government, Sarcone continues to serve as the operative head of the U.S. Attorney’s office,” it said.

In Friday’s decision, a Trump-appointed judge on the 2nd Circuit, Michael Park, dissented from the majority and agreed with the DOJ’s process.

“The better reading of the statute is that any first assistant to a vacant office becomes acting officer, subject only to the time limits in § 3346,” Park wrote. Under section 3346 of the Federal Vacancies Act, an acting officer can serve for 210 days.

“And the majority’s arguments based on statutory structure are actually policy arguments that overlook Congress’s understanding that the executive branch must function during periods of transition and political stalemate,” he added.