ALBANY, N.Y. (AP) — President Donald Trump’s effort to install political loyalists as top federal prosecutors recently ran aground, with judges ruling that his handpicked U.S. attorneys for New Jersey, Eastern Virginia, Nevada and Los Angeles were all serving illegally.
Now, another federal judge is poised to consider an argument from New York Attorney General Letitia James that the administration also bent the law to make John Sarcone the acting US attorney for upstate New York.
A court hearing is scheduled for Thursday as James challenges Sarcone’s authority to oversee a Justice Department investigation into regulatory lawsuits she has filed against Trump and the National Rifle Association.
James, a Democrat, is challenging the legitimacy of the subpoenas issued as part of the Sarcone probe, which her lawyers say is part of a campaign of baseless investigations and prosecutions of Trump’s perceived enemies.
They argued in court documents that since Sarcone “has no legitimate authority” to act as US attorney, any legal steps taken by him in that capacity are illegal.
“The subpoenas should be quashed, and Sarcone should be disqualified from this investigation,” they wrote.
Justice Department lawyers said Sarcone was properly appointed and the motion to block the subpoenas should be denied.
The fight in New York, and in the other states, is largely over the legality of unorthodox strategies adopted by the Trump administration to appoint prosecutors considered unlikely to be confirmed by the US Senate.
The New York hearing before US District Judge Lorna G. Schofield comes a week after a federal judge in Virginia dismissed charges brought there against James and former FBI Director James Comey. That judge concluded that the interim US attorney who brought the charges, Lindsey Halligan, was illegally appointed. The Department of Justice is expected to appeal.
On Monday, a federal appeals court ruled that Alina Habba, Trump’s former personal attorney, is disqualified from serving as New Jersey’s top federal prosecutor.
Under federal law, the president’s nominees for US attorney must be confirmed by the Senate. If a position is vacant, the US attorney general can appoint someone to serve temporarily, but that appointment then expires after 120 days. If that time period passes, the district judges can either keep the interim US attorney in office or appoint someone of their own choosing.
Sarcone’s appointment did not follow that path.
Trump has not nominated anyone to serve as US attorney for the Northern District of New York. US Attorney General Pam Bondi appointed Sarcone to serve as interim US attorney in March. When his 120-day term was up, the judges in the district refused to keep him in office.
Bondi then took the unusual step of appointing Sarcone as special counsel, then appointed him the first assistant US attorney for the district, a maneuver federal officials say would allow him to serve as acting US attorney.
James’ lawyers called the move an end to federal law for filling executive branch vacancies.
The New York subpoenas seek records related to a civil case James filed against Trump over alleged fraud in his personal business. and records from a lawsuit involving the National Rifle Association and two senior executives.
Justice Department lawyers have argued in court documents that the US attorney general has “unquestionable authority” to appoint lawyers within her department and to delegate her functions to those lawyers. And they argue that even if Sarcone is not properly holding the post of acting US attorney, he can still lead grand jury investigations as a special counsel.
Sarcone was part of Trump’s legal team during the 2016 presidential campaign and worked for the US General Services Administration as the regional administrator for the Northeast and the Caribbean during Trump’s first term.
Habba had also served as interim US attorney. When her appointment expired, New Jersey judges replaced her with a career prosecutor who had served as her second in command. Bondi then fired the judge-appointed prosecutor and reappointed Habba as acting US attorney.
A similar dynamic is playing out in Nevada, where a federal judge has disqualified the Trump administration’s pick to be U.S. attorney there. And a federal judge in Los Angeles disqualified the acting US attorney in Southern California from several cases after concluding that he had stayed in the temporary job longer than allowed by law.