ALBANY, N.Y. (AP) — President Donald Trump’s effort to install political loyalists as top federal prosecutors has been hit by legal buzz recently, with judges ruling that his handpicked U.S. attorneys for New Jersey, Eastern Virginia, Nevada and Los Angeles were all serving illegally.
Now, another federal judge is set to consider New York Attorney General Letitia James’ argument that the administration bent the law to make John Sarcon the acting U.S. attorney for upstate New York.
A court hearing is scheduled for Thursday as James challenges Sarcon’s authority to oversee the Justice Department’s investigation into regulatory cases filed against Trump and the National Rifle Association.
James, a Democrat, is disputing the validity of the subpoenas issued as part of Sarcon’s investigation, which his lawyers say is part of a campaign of baseless investigations and prosecutions of Trump’s alleged enemies.
They argued in court documents that while Sarcon has “no statutory authority” to act as U.S. attorney, any legal actions he may take in this capacity are illegal.
“The subpoenas should be quashed, and Sarcon should be disqualified from this investigation,” they wrote.
Justice Department lawyers say Sarcon was properly appointed and that the motion to block the subpoenas should be denied.
The fight in New York and other states is largely over the legality of the Trump administration’s unorthodox tactics in appointing prosecutors, which are unlikely to be confirmed by the US Senate.
A week after a federal judge in Virginia dismissed the indictment against James and former FBI Director James Comey, US District Judge Lorna G. Schofield has a hearing in New York. That judge concluded that the interim U.S. attorney who brought the charges, Lindsey Halligan, was illegally appointed. The Justice Department is expected to appeal.
On Monday, a federal appeals court ruled that Elina Habba, Trump’s former personal attorney, was disqualified from serving as New Jersey’s top federal prosecutor.
Under federal law, presidential nominations for U.S. attorney must be confirmed by the Senate. If a position is vacant, the U.S. Attorney General can appoint someone to serve temporarily, but that appointment expires after 120 days. If that term expires, district judges can appoint an interim U.S. attorney or appoint someone of their choosing.
Sarcon’s appointment did not follow that path.
Trump has not nominated anyone to serve as U.S. attorney for the Northern District of New York. U.S. Attorney General Pam Bondi appointed Cercone as interim U.S. attorney in March. When his 120-day term was up, the district judges refused to keep him in office.
Bondi then took the unusual step of appointing Sarcon as special attorney, then named him first assistant U.S. attorney for the district, allowing federal officials to serve as acting U.S. attorney.
James lawyers called the move an end-run around federal legislation to fill vacant executive branch positions.
The New York subpoenas seek records related to a civil case filed by James over alleged fraud in Trump’s personal business dealings. and records from a lawsuit involving the National Rifle Association and two senior officials.
Justice Department attorneys argued in court documents that the U.S. attorney general has the “undisputed authority” to appoint attorneys within his department and delegate his functions to those attorneys. And they argue that even though Sarcon does not properly hold the position of acting U.S. attorney, he can conduct a grand jury investigation as a special prosecutor.
Cercone was part of Trump’s legal team during the 2016 presidential campaign and worked for the US General Services Administration as regional administrator for the Northeast and Caribbean during Trump’s first term.
Habba also served as an interim US attorney. When his appointment expired, New Jersey judges replaced him with a career prosecutor who served as his second-in-command. Bondi then fired the judge-appointed prosecutor and named Hubba as acting U.S. attorney.
A similar dynamic is playing out in Nevada, where a federal judge disqualified the Trump administration’s pick to become U.S. attorney. And a federal judge in Los Angeles disqualified the acting U.S. attorney in Southern California from several cases after concluding he stayed on a temporary job longer than the law allowed.
