Inset: Acting U.S. Attorney for the Northern District of New York John Sarcone III (U.S. Department of Justice). Background: President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
The judge who slapped down the not-lawfully-serving acting U.S. attorney's grand jury subpoenas of New York Attorney General Letitia James' office has now refused to put that ruling on hold as the DOJ appeals, noting that the criminal probe itself is not blocked and a duly authorized top prosecutor not named John Sarcone may step in.
Law&Crime reported how Senior U.S. District Judge Lorna Schofield ruled that U.S. Attorney General Pam Bondi unlawfully appointed Sarcone in the Northern District of New York, meaning his summertime subpoenas of James' office were "invalid" and "quashed," and that he was disqualified from "any further involvement in prosecuting or supervising the instant investigations, regardless of his title." The decision was in step with those made by several other federal judges across the country, with varying consequences for President Donald Trump's investigative priorities.
Here, Sarcone's subpoenas sought documents from James' civil fraud lawsuit against Trump and his family business and the Democratic AG's lawsuit against the NRA.
The "regardless of his title" specification in Schofield's order referred to Sarcone's second title of special attorney, which Bondi said empowered him to supervise the office through a delegation of her authority. At the time, the judge noted that the DOJ could try to "re-issue the subpoenas at the direction of a lawfully authorized attorney for the Federal Government, without Mr. Sarcone's involvement."
But in a response asking the judge to put her ruling on hold pending appeal at the 2nd Circuit, the DOJ managed to misspell the name of a different invalidated acting U.S. attorney while asserting his case's outcome should mean Sarcone's first assistant U.S. attorney and special attorney titles could salvage the subpoenas.
On Wednesday, Schofield declined to do anything of the sort, leaving the status quo in place while also reminding the DOJ that it can continue its investigation by following the law.
Simply put, the government didn't make a "strong showing" that it is likely to succeed or that they are irreparably harmed by the ruling in the absence of a stay, the judge said.
"The Appointment Order concludes that compliance with subpoenas personally directed by an official using authority he did not lawfully possess is by its nature unreasonable and oppressive," Schofield wrote. "That the Federal Government disagrees with the Order's analysis does not amount to a 'strong showing' under Nken."
A couple of lines later, the judge said DOJ's attempt to demonstrate harm "misses the mark" because the order "does not bar a lawful investigation" and the Trump administration can simply use lawful means to probe the NYAG.
"To the contrary, the Order reinforces those principles by ensuring the lawful authority of those conducting and supervising Department of Justice criminal investigations," Schofield went on. "As the Order explains, the Federal Government remains free to continue the instant investigations, including reissuing the subpoenas, through lawfully authorized officials."
The judge, a Barack Obama appointee, also wasn't persuaded by the argument that, because other rulings fell short of disqualification, Sarcone should have the same legal leeway.
"That some district courts declined to invalidate other actions taken by improperly appointed U.S. Attorneys does not compel a different result here. Each case turns on its own facts. The Appointment Order imposes a narrow disqualification that applies only to the two investigations at issue, and rests on Mr. Sarcone's direct and personal involvement with subpoenas issued during ongoing pre-indictment investigations," Schofield concluded. "These facts distinguish this case from those cited by the Federal Government. Taken together, the Federal Government has not made a 'strong showing' of likely success on appeal."
The effect of ruling in the opposite direction would have been to revive the subpoenas as an appeal unfolded. The DOJ had pledged not to enforce the subpoenas if the judge granted a stay.
Controversy surrounding Sarcone's office did not abate after the subpoenas were quashed in January, as he continued to identify himself in other court filings as acting U.S. attorney. Eventually, he relinquished the title.
Last month, the district court's judges exercised their statutory authority to appoint Donald Kinsella to Sarcone's vacant office, only for Kinsella to be immediately fired and for Sarcone to remain in place as first assistant.
In that capacity, Sarcone — with reportedly no other prior prosecutorial experience — announced the training of new line prosecutors on Thursday.
"We are extremely grateful to have you join the U.S. Attorney's Office for the Northern District of New York. We eagerly look forward to the contributions you will make as we work together to uphold our mission and serve the public as civil servants," he said.