ALBANY, N.Y. (AP) — President Donald Trump's effort to install political loyalists as top federal prosecutors has run into a legal buzz saw lately, with judges ruling that his handpicked U.S. attorneys for New Jersey, eastern Virginia, Nevada and Los Angeles were all serving unlawfully.
Now, another federal judge is poised to consider an argument by New York Attorney General Letitia James that the administration also twisted the law in order to make
John Sarcone the acting U.S. attorney for northern New York.
A court hearing is scheduled to be held Thursday as James challenges Sarcone's authority to oversee a Justice Department investigation into regulatory lawsuits she filed against Trump and the National Rifle Association.
James, a Democrat is disputing the legitimacy of subpoenas issued as part of Sarcone's probe, which her lawyers say is part of a campaign of baseless investigations and prosecutions of Trump's perceived enemies.
They argued in court papers that since Sarcone “has no legitimate authority” to act as U.S. attorney, any legal steps taken by him in that capacity are unlawful.
“The subpoenas must be quashed, and Sarcone must be disqualified from this investigation,” they wrote.
Justice Department lawyers say Sarcone was appointed properly 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 the Trump administration has adopted to appoint prosecutors seen as unlikely to get confirmed by the U.S. Senate.
The New York hearing before U.S. District Judge Lorna G. Schofield comes a week after a federal judge in Virginia dismissed indictments brought there against James and former FBI Director James Comey. That judge concluded that the interim U.S. attorney who brought the charges, Lindsey Halligan, was unlawfully appointed. The Justice Department is expected to appeal.
On Monday, a federal appeals court ruled that Alina Habba, Trump’s former personal lawyer, is disqualified from serving as New Jersey’s top federal prosecutor.
Under federal law, the president's nominees for U.S. attorney need to be confirmed by the Senate. If a position is vacant, the U.S. attorney general can appoint someone to serve temporarily, but that appointment then expires after 120 days. If that time period elapses, judges in the district can either keep the interim U.S. attorney in the post or appoint someone of their own choosing.
Sarcone's appointment didn't follow that path.
Trump hasn't nominated anyone to serve as U.S. attorney for the Northern District of New York. U.S. Attorney General Pam Bondi appointed Sarcone to serve as the interim U.S. attorney in March. When his 120-day term elapsed, judges in the district declined to keep him in the post.
Bondi then took the unusual step of appointing Sarcone as a special attorney, then designated him first assistant U.S. attorney for the district, a maneuver federal officials say allows him to serve as an acting U.S. attorney.
James lawyers have called the move an end-run around the federal law for filling vacant executive branch positions.
The New York subpoenas seek records related to a civil case James filed against Trump over alleged fraud in his personal business dealings. and records from a lawsuit involving the National Rifle Association and two senior executives.
Justice Department lawyers argued in court papers that the U.S. attorney general has “unquestioned authority” to appoint attorneys within her department and to delegate her functions to those attorneys. And they argue that even if Sarcone is not properly holding the office of acting U.S. attorney, he can still conduct grand jury investigations as a special attorney.
Sarcone was part of Trump’s legal team during the 2016 presidential campaign and worked for the U.S. General Services Administration as the regional administrator for the Northeast and Caribbean during Trump’s first term.
Habba had also served as an interim U.S. 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 prosecutor installed by the judges and renamed Habba as acting U.S. attorney.
A similar dynamic is playing out in Nevada, where a federal judge disqualified the Trump administration’s pick to be U.S. attorney there. And a federal judge in Los Angeles disqualified the acting U.S. attorney in Southern California from several cases after concluding he had stayed in the temporary job longer than allowed by law.
