NEW YORK — Federal appeals court judges on Monday questioned whether the Trump administration is circumventing constitutional requirements by installing federal prosecutors for indefinite periods without seeking Senate confirmation.
The 2nd U.S. Circuit Court of Appeals examined a lower court ruling that determined First Assistant U.S. Attorney John Sarcone was illegally serving as the chief prosecutor for northern New York, making his official actions subject to reversal.
Circuit Judge Maria Araújo Kahn voiced concerns that any president could “essentially dismantle a system that our Founding Fathers established for checks and balances.”
Kahn emphasized her concerns transcended party lines and individual presidents.
“That person could circumvent Senate confirmation of any U.S. attorney by simply repeatedly naming a first assistant to function as acting U.S. attorney. Where would this practice stop?” she questioned.
Manhattan U.S. District Judge Lorna G. Schofield removed Sarcone in February from seeking subpoenas in an investigation targeting New York Attorney General Letitia James.
Sarcone joins several temporary U.S. attorneys appointed by the current administration whom courts have determined are serving illegally in their roles.
Federal statutes typically mandate Senate confirmation for U.S. attorneys and permit only temporary service without confirmation for restricted timeframes. However, under Trump’s leadership, the Justice Department has attempted to keep unconfirmed prosecutors in place permanently, frequently using creative staffing tactics that courts have subsequently deemed inappropriate.
In December, Alina Habba stepped down as New Jersey’s chief federal prosecutor following an appeals court determination that her service violated legal requirements.
Lindsey Halligan, who brought charges against two Trump opponents, vacated her acting U.S. attorney role in Virginia after a judge ruled in November that her appointment lacked legal authority and dismissed indictments she had filed against James and former FBI Director James Comey.
Circuit Judge Guido Calabresi, part of Monday’s appellate panel, noted that the roughly 200-day limit for temporary U.S. attorney service would become “useless because you could continuously reappoint the identical individual.”
Calabresi suggested the 2nd Circuit might determine that Sarcone could receive authorization from his Washington supervisors to investigate James independent of his U.S. attorney’s office role.
Justice Department attorney Henry Whitaker informed the three-judge Manhattan panel that the executive branch employed Congressional authorities to place Sarcone in command of the office.
“Congress has established multiple overlapping mechanisms for the executive branch to ensure temporary performance of those duties. Here, the executive branch employed two such methods to completely authorize John Sarcone to issue grand jury subpoenas and oversee criminal investigations in northern New York,” Whitaker stated.
Former U.S. Attorney General Pam Bondi designated Sarcone as interim U.S. attorney for northern New York in March 2025. However, when his 120-day appointment expired, district judges refused to extend his tenure.
Sarcone remained in position regardless, continuing his investigation of James, a Democratic official and persistent Trump critic.
After Sarcone adopted the “first assistant U.S. attorney” title, federal district judges attempted to address the apparent vacancy in February by naming Donald Kinsella to the position.
Within 24 hours, then-Deputy Attorney General Todd Blanche announced Kinsella’s dismissal via social media.
“Judges don’t select U.S. Attorneys,” the president does, Blanche posted, concluding, “You are terminated, Donald Kinsella.”
Donald Beaton Verrilli Jr., counsel for the New York attorney general’s office, called it “remarkable, absolutely remarkable” that no nominee has been put forward for northern New York’s U.S. attorney position over a year into Trump’s second presidency.
“What this demonstrates is that everything involving Mr. Sarcone is clearly designed to circumvent the Senate’s constitutional responsibility… to verify that individuals are qualified for the position. They desire this investigation of our office and attorney general to proceed without Senate oversight,” he argued.
The judges withheld their decision.
