The top federal prosecutor in the Northern District of New York is serving in the position unlawfully, a judge ruled Thursday.
U.S. District Judge Lorna Schofield’s ruling against acting U.S. Attorney John Sarcone III is the fifth time that judges have ruled that a top prosecutor appointed by Attorney General Pam Bondi was serving in the position unlawfully.
Similarly to other cases, Schofield ruled the Justice Department had tried to use impermissible work-arounds to keep Sarcone in office despite a 120-day limit for U.S. attorneys whose nominations had not been confirmed by the Senate.
“The Department of Justice did not follow those procedures. Instead, on the same day that the judges declined to extend Mr. Sarcone’s appointment, the Department took coordinated steps — through personnel moves and shifting titles — to install Mr. Sarcone as Acting U.S. Attorney,” Schofield wrote. “Federal law does not permit such a workaround.”
The Justice Department did not immediately respond to a request for comment.
Schofield issued the decision as part of a case brought by New York Attorney General Letitia James’ office seeking to quash grand jury subpoenas Sarcone had served on the office. The subpoenas were seeking information about two civil fraud cases James brought against President Donald Trump and the National Rifle Association.
Sarcone “personally directed the issuance of both subpoenas; his is the only name on the subpoenas and the documents sought are returnable to him personally,” the judge wrote.
She noted that after Sarcone “claimed the title of Acting U.S. Attorney, he used that authority to subpoena a state law-enforcement office that the President had publicly cast as a political adversary.”
“Grand juries are ‘not meant to be the private tool of a prosecutor,’ much less one not lawfully appointed,” Schofield wrote.
“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,” she wrote, finding Sarcone is disqualified from the investigation.
A spokesperson for James said in a statement, “This decision is an important win for the rule of law and we will continue to defend our office’s successful litigation from this administration’s political attacks.”
The Justice Department and Sarcone's office did not immediately respond to requests for comment.
In her ruling, Schofield noted that since August, courts in New Jersey, Nevada and California have held that acting U.S. attorneys in those states "lacked lawful authority" and that another federal judge found the acting U.S. attorney for the Eastern District of Virginia, Lindsey Halligan, was serving unlawfully, as well.
Halligan, a former Trump personal attorney, brought criminal charges against James and another Trump adversary, former FBI Director James Comey, which were dismissed after a judge found her appointment was unlawful. The Justice Department is appealing that ruling, as well as the others.
