A judge ruled a Trump DOJ prosecutor is 'not lawfully serving,' but he's still wielding his title while trying to dismiss Comey's firing lawsuit

Left: Attorney General Pam Bondi listens as President Donald Trump speaks at an event on addiction recovery in the Oval Office of the White House, Thursday, Jan. 29, 2026, in Washington (AP Photo/Allison Robbert). Right: John Sarcone, acting U.S. Attorney for Northern New York, leaves Manhattan federal court, Thursday, Dec. 4, 2025, in New York (AP Photo/Larry Neumeister).

As the DOJ tries to halt a ruling that quashed its criminal grand jury subpoenas of New York Attorney General Letitia James' office, acting U.S. Attorney John Sarcone is still wielding his claimed title in a bid to dismiss Maurene Comey's lawsuit over her firing, despite a judge ruling he is "not lawfully serving."

The daughter of ex-FBI Director James Comey, who was fired from her post as assistant U.S. attorney for the Southern District of New York in July by the Trump administration, is currently suing over her "illegal termination" in Manhattan.

The Northern District of New York's Sarcone has been defending the DOJ in the case because the U.S. Attorney's Office for the Southern District recused itself, given that the plaintiff once prosecuted Jeffrey Epstein's accomplice, Ghislaine Maxwell, as she worked there for nearly a decade. Her father was also once the U.S. attorney and a line prosecutor.

On Monday, the DOJ filed a reply memorandum in U.S. District Judge Jesse Furman's court, in support of tossing out Comey's lawsuit for lack of jurisdiction. Deputy Attorney General Todd Blanche and Sarcone's names were on the filing.

John Sarcone appears on the filing to dismiss Maurene Comey's lawsuit (court documents).

Notably, Sarcone's listed title was "Acting United States Attorney."

Whether you go by the date at the bottom of the filing, Jan. 23, or the date it was entered on the docket, Feb. 2, Sarcone is holding himself out as the top prosecutor for the Northern District of New York weeks after a judge ruled that he was "not lawfully serving."

As Law&Crime has reported, the subpoenas of Letitia James' office were issued over the summer as part of the DOJ's criminal investigation into her civil fraud lawsuit against President Donald Trump and his family business, as well as the Democratic AG's lawsuit against the NRA.

On Jan. 8, however, Senior U.S. District Judge Lorna Schofield ruled that U.S. Attorney Pam Bondi's appointment of Sarcone was unlawful and the subpoenas were slapped down.

"Mr. Sarcone is not lawfully serving as Acting U.S. Attorney for the NDNY. His appointment violates the FVRA and the statutes governing U.S. Attorney appointments. Several courts, including the Third Circuit, have recently addressed similar appointment maneuvers and reached the same conclusion," Schofield wrote, in part referring to dismissals of the DOJ's criminal cases against James Comey and Letitia James in the Eastern District of Virginia due to Lindsey Halligan's unlawful interim appointment.

"Because Mr. Sarcone used authority he did not lawfully possess to direct the issuance of the subpoenas, the subpoenas are quashed," Schofield added, disqualifying Sarcone from "further participation in the underlying criminal investigations."

Left: U.S. President Donald Trump, left, shakes hands with James Comey, director of the Federal Bureau of Investigation (FBI), during an Inaugural Law Enforcement Officers and First Responders Reception in the Blue Room of the White House in Washington, D.C., U.S., on Sunday, Jan. 22, 2017.  (Andrew Harrer/Bloomberg). Right: Assistant U.S. Attorney Maurene Comey arrives at Federal Court for the Sean "Diddy" Combs trial, on Monday, May 19, 2025, in New York. (AP Photo/Ted Shaffrey).

The DOJ responded to the adverse ruling two weeks ago by asking Schofield for a stay pending appeal.

The government insisted that Sarcone is lawfully serving by virtue of his titles of special attorney and first assistant U.S. attorney, and that the subpoenas should be revived. After Law&Crime identified a basic error in the filing, the DOJ sought and received permission to file a new memo correcting several typos.

According to the docket, Schofield, a Barack Obama appointee, has not ruled on the DOJ's motion for a stay as of Tuesday.

It's reminiscent of the situation in Virginia that prompted a judge to call out Lindsey Halligan for using the U.S. attorney title in court filings even after the dismissals of the Comey and James prosecutions.

U.S. District Judge David J. Novak, a Trump appointee, had ordered the government to answer why Halligan identified herself on an indictment as U.S. attorney "despite a binding Court Order," which "found that the 'appointment of Ms. Halligan as Interim U.S. Attorney violated 28 U.S.C. § 546 and the Appointments Clause of the U.S. Constitution.'"

The DOJ said the judge was running an "inquisition," but Halligan ultimately stepped aside on Jan. 20 as judges in the EDVA began the process for replacing her.

Novak, for his part, said Halligan was engaged in a "charade," where she was "masquerading" as the U.S. attorney and "in direct defiance of binding court orders[.]"