Overview
- The Second Circuit affirmed a lower court on Friday that John A. Sarcone III was not lawfully serving as acting U.S. attorney and upheld the quashing of grand jury subpoenas he issued to Letitia James’s office.
- The court said the Justice Department’s multi-step tactic to keep Sarcone in charge after a 120-day interim expired violated the Federal Vacancies Reform Act by naming him first assistant only after the vacancy arose.
- Because Sarcone lacked lawful authority when he signed the subpoenas, the panel also affirmed his disqualification from the related investigations.
- The Justice Department said it will ask the U.S. Supreme Court to review the ruling, while Sarcone continues to lead the Northern District office as first assistant and prosecutors have taken steps to add other officials’ names on filings to protect cases.
- The decision follows similar appellate rulings in other circuits and raises the prospect that the Supreme Court will decide whether the DOJ may use post-vacancy title changes to extend interim U.S. attorney authority, a move that could affect the validity of subpoenas and indictments nationwide.