Trump DOJ in no way showed judge 'erred' by invalidating Letitia James subpoenas, as so-called U.S. attorney 'lacked authority': Appeals court

A federal appeals court affirmed that a judge rightly quashed Trump DOJ subpoenas of New York Attorney General Letitia James' office because of the "unlawful" appointment of the U.S. attorney behind them.

The 9th U.S. Circuit Court of Appeals earlier this week upheld the disqualification of an acting U.S. attorney in Nevada, and the 2nd Circuit weighed in Friday on former AG Pam Bondi's never-Senate-confirmed appointee John Sarcone in the Northern District of New York.

Senior U.S. Circuit Judge Guido Calabresi wrote the 2-1 decision and was joined by U.S. Circuit Judge Maria Araújo Kahn.

The appellate judges, appointed by former presidents Bill Clinton and Joe Biden, concluded that Senior U.S. District Judge Lorna Schofield was correct in holding that Sarcone didn't "validly" serve or "lawfully" exercise the duties of acting U.S. attorney in his investigation into those who investigated President Donald Trump and his family business.

Schofield, a Barack Obama appointee, ruled in January that Sarcone was disqualified from "any further involvement in prosecuting or supervising the instant investigations, regardless of his title," and quashed the subpoenas he issued.

After the ruling, Sarcone continued to identify himself in other court filings as acting U.S. attorney, but eventually he relinquished the title. His DOJ page currently shows he is the first assistant U.S. attorney.

The panel's majority saw no reason to second-guess the district judge, who didn't block the criminal probe itself and noted the government "remains free" to reissue the subpoenas "through lawfully authorized officials."

"We hold that Sarcone was not serving as Acting U.S. Attorney when he obtained the subpoenas because the FVRA [Federal Vacancies Reform Act] permits only a First Assistant already in place when the vacancy arises to become the acting officer automatically," the court said. "We further hold that the general delegation to Sarcone of all the duties of the U.S. Attorney's office was an unlawful use of general delegation authority to circumvent the FVRA's exclusivity provision."

"Because Sarcone lacked authority to obtain the subpoenas on either theory, we affirm the district court's order quashing them. And because the government on appeal did not provide any argument as to why the district court erred in disqualifying Sarcone from future involvement in the underlying investigations, we treat the issue as forfeited," Calabresi added, calling the appointment "an unlawful circumvention."

In a dissent, U.S. Circuit Judge Michael Park defended Bondi's "belt-and-suspenders approach" in simultaneously naming Sarcone first assistant and a special U.S. attorney when his interim stint was up. A federal court declined to appoint Sarcone and appointed someone else to serve as top prosecutor, but Donald Kinsella was immediately fired — automatically clearing the way for Sarcone as next in line.

For Park, one of six Trump appointees on the 2nd Circuit, it is the appellate court that has overstepped in crying foul.

"Mr. Sarcone had the authority to subpoena OAG both as Acting U.S. Attorney under 5 U.S.C. § 3345(a)(1) and also as Special Attorney. By concluding otherwise, the majority imposes new limits on executive authority, upsetting the balance that Congress struck in the FVRA," the judge said, rejecting the holding that only the individual who was first assistant at the time the U.S. attorney vacancy arose can serve.

"The majority misreads § 3345(a)(1) to apply only to the person serving as FAUSA at the moment the vacancy first arose. But the FVRA contains no such limitation to a specific person or point in time. And the majority's arguments based on statutory structure are actually policy arguments that overlook Congress's understanding that the executive branch must function during periods of transition and political stalemate," Park said.