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).
A district court in New York set the Trump administration off on Wednesday by naming the replacement for one of the DOJ's several "not lawfully serving" acting U.S. attorneys, leading to a swift "you are fired" announcement on social media and a near replay of a standoff from the summer.
John Sarcone had clung to his claimed title of acting top prosecutor, through the office of first assistant U.S. attorney, and special attorney, as supervisor for the U.S. Attorney's Office for the Northern District even after a judge quashed his grand jury subpoenas of New York Attorney General Letitia James' office, as Sarcone "used authority he did not lawfully possess to direct the issuance of the subpoenas[.]"
Law&Crime reported over a week ago how Sarcone was still identifying himself on court filings as acting U.S. attorney, specifically as part of an attempt to dismiss Maurene Comey's lawsuit over her firing.
Sarcone has been defending the DOJ in the case because the U.S. Attorney's Office for the Southern District recused itself, given that Comey worked there for nearly a decade and her father once led the office.
Sarcone, a Donald Trump loyalist who lacked prosecutorial experience and at least once called the Democratic Party "evil," was appointed by U.S. Attorney General Pam Bondi in late February and sworn in as interim U.S. Attorney. When the 120-day interim stint was set to expire, as in the case of Alina Habba in New Jersey, a federal court ultimately declined to appoint Sarcone.
Eventually, the courts stepped in, naming replacements for both prosecutors.
But Bondi kept both Sarcone and Habba in their temporary roles and continued sidestepping the U.S. Senate confirmation process by simultaneously naming them a "Special Attorney to the Attorney General" and first assistant U.S. attorneys, normally the second-in-command in the office but not in the circumstance where there is no superior.
Previously, Bondi slammed "rogue judges" for exercising their own statutory authority to appoint a U.S. attorney. The AG removed the court's pick to replace Habba, citing Trump's "core Article II powers."
Deputy Attorney General Todd Blanche struck much the same tone on Wednesday when reacting to the Northern District of New York District Court's appointment of Donald Kinsella to replace Sarcone.
"Judges don't pick U.S. Attorneys, @POTUS does. See Article II of our Constitution. You are fired, Donald Kinsella," Blanche posted on X.
In a brief announcement, the court cited 28 U.S. Code § 546(d) to name Kinsella the U.S. attorney, pointing to his "more than 50 years of experience in complex criminal and civil litigation" and his time as the criminal chief of the office.
Under the statute, when a U.S. attorney's stint has expired, the "district court for such district may appoint a United States attorney to serve until the vacancy is filled." And under Article II, Congress "may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."
"Mr. Kinsella was sworn in as the United States Attorney for the Northern District of New York in a private ceremony on February 11, 2026," the court noted.
Rather than letting the appointment be, the DOJ is going to bat for Sarcone, whose time in office has included the pursuit of criminal grand jury subpoenas of Letitia James' office.
The subpoenas were issued over the summer as part of the DOJ's criminal investigation into the Democratic AG's civil fraud lawsuit against Trump and his family business, and James' lawsuit against the NRA.
On Jan. 8, Senior U.S. District Judge Lorna Schofield ruled that Bondi's appointment of Sarcone was unlawful and that the subpoenas had to be quashed.
"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."
The DOJ has sought a stay of that ruling pending appeal, asserting 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.
Not long ago, Halligan stepped aside from an interim U.S. attorney role after judges began the process for replacing her and one jurist questioned why she was still carrying on the "charade," using a title she did not lawfully hold.
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