Federal appeals judges question Trump’s extended prosecutor appointments

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A federal appeals court panel on Monday questioned the Trump administration’s approach to appointing top federal prosecutors for extended periods without U.S. Senate approval, focusing on a case involving First Assistant U.S. Attorney John Sarcone in the northern district of New York. The court’s scrutiny came during arguments before judges of the 2nd U.S. Circuit Court of Appeals over whether Sarcone was lawfully serving as the district’s top prosecutor and whether actions taken while he was in that role could stand.

The issue arose after U.S. District Judge Lorna G. Schofield in Manhattan in February disqualified Sarcone from requesting subpoenas in a probe involving New York Attorney General Letitia James. The dispute centered on the argument that Sarcone was not validly appointed as the office’s leading prosecutor even though he continued to act, prompting questions about the legal effect of his decisions.

At Monday’s hearing, Circuit Judge Maria Araújo Kahn pressed the constitutional stakes of the government’s personnel strategy. She said she was concerned that a president could “basically end running a system that our Founding Fathers put in place for a checks-and-balance system,” adding that her concern did not depend on which political party held power or who the president was.

Kahn asked whether the practice could be repeated indefinitely. She said it would not matter who the president was because, in her view, the president could “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,” and she asked, “When would it end?”

Circuit Judge Guido Calabresi similarly suggested that statutory limits on how long someone may serve temporarily as acting U.S. attorney could be undermined. He said the “meaningless” part of those limits would be that the administration could “keep naming the same person,” potentially avoiding the Senate confirmation step the law is meant to require.

The appellate panel also considered the government’s alternative argument for what Sarcone could do even if the panel ultimately finds an appointment problem. Calabresi said it was possible the 2nd Circuit could conclude that Sarcone could be appointed by his Washington superiors to carry out a probe of James regardless of his position inside the U.S. attorneys office.

DOJ lawyer Henry Whitaker argued to the appeals court that the executive branch acted within authority provided by Congress. He told the panel that “Congress has provided a number of overlapping mechanisms for the executive branch to provide for the temporary performance for those functions,” and said the Justice Department used those methods to “fully authorize John Sarcone to issue grand jury subpoenas and to supervise criminal investigations in the northern district of New York.”

Whitaker’s argument also looked to the timeline of Sarcone’s appointment and the government’s internal maneuvering. The Associated Press reported that then-U.S. Attorney General Pam Bondi appointed Sarcone to serve as interim U.S. attorney for the northern district in March 2025, and that when Sarcone’s 120-day term elapsed, judges in the district declined to keep him in the post.

According to the reporting, Sarcone stayed on anyway and, while in that role, pursued another investigation involving James. The dispute then escalated after Sarcone changed his title to “first assistant U.S. attorney,” at which point federal judges attempted in February to fill what they viewed as a vacancy in the top spot by appointing Donald Kinsella.

The government response described in the reporting came quickly. The reporting said that less than a day later, then-Deputy Attorney General Todd Blanche announced Kinsella’s firing in a social media post, writing that “Judges don’t pick U.S. Attorneys,” and “You are fired, Donald Kinsella.”

Attorney Donald Beaton Verrilli Jr., representing the New York attorney general’s office, challenged the idea that there had been a genuine effort to comply with Senate confirmation requirements. He said it was a “striking, striking thing” that more than a year into Trump’s second term no one had been nominated to be U.S. attorney for the northern district of New York, and argued that the conduct in Sarcone’s case appeared designed to avoid the Senate’s role.

Verrilli said, “I think what it tells you it that it is obvious that everything that has happened here with respect to Mr. Sarcone is being done for the express purpose of avoiding the Senate’s role … to ensure that people are fit for the office,” and he added that the goal was to keep the James investigation going without what he characterized as Senate scrutiny.

The panel reserved decision after hearing arguments, leaving open how the court will interpret the limits on acting U.S. attorneys and the legal consequences for subpoenas and other prosecutorial steps taken during the disputed period.