A federal appeals court panel expressed scepticism on Monday over the Trump administration's practice of appointing top federal prosecutors for extended periods without U.S. Senate approval. The case before the 2nd U.S. Circuit Court of Appeals concerned a judge's ruling that First Assistant U.S. Attorney John Sarcone was not lawfully serving as the top prosecutor in the northern district of New York, making his actions voidable.
Circuit Judge Maria Araújo Kahn voiced concern that a president could bypass the checks-and-balances system established by the Founding Fathers. 'That individual can bypass Senate approval of any U.S. attorney by just continuously appointing a first assistant for the purpose of making them active U.S. attorney. When would it end?' she asked. Judge Guido Calabresi added that statutory limits of just over 200 days on temporary service would be 'meaningless because you can keep naming the same person.'
Sarcone is among several interim U.S. attorneys installed by the administration who have been found to be unlawfully serving. In December, Alina Habba resigned as New Jersey's top federal prosecutor after an appeals court ruled her appointment unlawful. Lindsey Halligan, who pursued indictments against Trump adversaries, left her post in Virginia after a judge concluded her appointment was invalid and that charges against Letitia James and James Comey must be dismissed.
Justice Department attorney Henry Whitaker defended the appointment, saying Congress had provided overlapping mechanisms for the executive branch to authorise Sarcone to issue grand jury subpoenas and supervise criminal investigations. Sarcone was appointed interim U.S. attorney for the northern district of New York by then-Attorney General Pam Bondi in March 2025. After his 120-day term expired and district judges declined to keep him, he remained in post, pursuing another investigation of New York Attorney General Letitia James.
When Sarcone changed his title to 'first assistant U.S. attorney,' federal judges in February attempted to fill the vacancy by appointing Donald Kinsella. Less than a day later, then-Deputy Attorney General Todd Blanche announced Kinsella's firing on social media, writing: 'Judges don't pick U.S. Attorneys,' the president does. 'You are fired, Donald Kinsella.'
Donald Beaton Verrilli Jr., representing the New York attorney general's office, said it was a 'striking, striking thing' that nobody has been nominated for the role more than a year into Trump's second term, suggesting the moves were designed to avoid the Senate's confirmation role.
