Federal judges skeptical of Trump’s long-term interim prosecutor approach
A federal appeals panel on Monday expressed skepticism about the Trump administration’s approach to keeping certain top federal prosecutors in place for extended periods without U.S. Senate approval, raising questions about whether the Justice Department can bypass the confirmation system through repeated interim appointments. The concern surfaced during arguments before the 2nd U.S. Circuit Court of Appeals in a case involving First Assistant U.S. Attorney John Sarcone and his authority in the northern district of New York.
The panel’s scrutiny centered on a ruling that found Sarcone’s actions were voidable because, in the judges’ view, he was not lawfully serving as the top prosecutor for the district. The dispute also highlighted how federal law generally requires Senate confirmation for U.S. attorneys and allows unconfirmed service only for limited time frames.
Circuit Judge Maria Araújo Kahn said she was concerned the approach could undermine the constitutional framework governing appointments. She said it did not matter which president or political party was in power, adding that the practice could enable a president to bypass Senate approval by keeping someone continuously appointed as a first assistant in order to maintain acting status.
Kahn’s comment was aimed at what she described as a structural workaround to Senate oversight. She asked: “That individual can bypass Senate approval of any U.S. attorney by just continuously appointing a first assistant for the purpose of making them active U.S. attorney. When would it end?” She also said: “basically end running a system that our Founding Fathers put in place for a checks-and-balance system.”
The case traces to proceedings in Manhattan earlier this year, where U.S. District Judge Lorna G. Schofield disqualified Sarcone from requesting subpoenas in a probe involving New York Attorney General Letitia James. Sarcone was among a group of interim U.S. attorneys installed by the administration whom judges have found unlawfully serving in their roles, according to the arguments presented to the appellate panel.
During the hearing, Circuit Judge Guido Calabresi said he believed time limits of just over 200 days for acting U.S. attorneys would be “meaningless” if the administration could keep naming the same person. Calabresi said the 2nd Circuit might still conclude that Sarcone could be appointed by superiors in Washington to carry out a probe of James even without holding the top U.S. attorney position.
In court, attorneys for the Justice Department argued that the executive branch had authority to install Sarcone in a way that complied with tools Congress gave it. Attorney Henry Whitaker, representing the Justice Department, told the three-judge appeals panel that the executive branch used mechanisms Congress provided to fully authorize Sarcone to issue grand jury subpoenas and supervise criminal investigations in the northern district of New York. Whitaker said: “Congress has provided a number of overlapping mechanisms for the executive branch to provide for the temporary performance for those functions. In this case, the executive branch used two of those methods to fully authorize John Sarcone to issue grand jury subpoenas and to supervise criminal investigations in the northern district of New York.”
Sarcone’s status became contested after then-U.S. Attorney General Pam Bondi appointed him as interim U.S. attorney for the northern district of New York in March 2025, with a 120-day term that later elapsed. The account presented in the appeals argument described that judges declined to keep him in the post once his term ended, but he remained on anyway while pursuing another investigation involving James, described as a longtime Trump adversary.
As that dispute developed, the judges said that when Sarcone changed his title to “first assistant U.S. attorney,” efforts were made in the district court to fill what was treated as a vacancy at the top. The record described that a judge appointed Donald Kinsella to the role less than a day before then-Deputy Attorney General Todd Blanche announced in a social media post that Kinsella was fired, writing: “Judges don’t pick U.S. Attorneys,” and “You are fired, Donald Kinsella.”
Attorneys for James’s office argued that the lack of a nomination for the U.S. attorney post reflected an intention to avoid the Senate’s role. Attorney Donald Beaton Verrilli Jr., representing the New York attorney general’s office, called it a “striking, striking thing” that no one had been nominated to be U.S. attorney for the northern district of New York more than a year into Trump’s second term. Verrilli said the situation reflected “the express purpose of avoiding the Senate’s role … to ensure that people are fit for the office,” and he argued that the administration wanted the investigation to proceed without “any scrutiny from the Senate,” adding: “They want this investigation of our office, and of our attorney general to go forward without any scrutiny from the Senate.”
The panel reserved decision after hearing the arguments.