NY AG Letitia James Expands Battle to Disqualify Trump-Appointed, Unconfirmed U.S. Attorneys

As a defendant indicted by the Trump Justice Department, Letitia James, New York’s attorney general and President Trump’s political nemesis, is already involved in litigation contesting the qualifications of a Trump-appointed prosecutor. James has joined another Trump political foe, former FBI Director James Comey, in seeking the disqualification of Lindsey Halligan, the prosecutor that Attorney General Pamela Bondi — after prompting by the president — installed as interim United States attorney for the Eastern District of Virginia (EDVa). Halligan was brought in to replace Erik Siebert, who was fired after declining to indict James and Comey, and she quickly charged both of them.

James, in her official capacity as a state AG, has now expanded the disqualification battle. The Washington Post reports that she is seeking to quash subpoenas issued by John A. Sarcone III, who is controversially functioning as U.S. attorney for the Northern District of New York (NDNY).

For the reasons I outlined earlier this week, I believe James’s motion to quash based on Sarcone’s status will be rebuffed. She may, however, have federalism grounds to challenge the subpoenas.

In the Trump Justice Department’s now familiar role of turning federal law enforcement authority against those who investigated and prosecuted Trump prior to the 2024 election, the NDNY has issued a subpoena to James’s office demanding information related to James’s civil fraud prosecution of Trump. That is the case in which Trump was found liable by the trial judge and subjected to a half-billion disgorgement penalty; an appeals court has thrown out the penalty, but it kept the liability finding in place, so both sides are appealing to the state’s highest court.

Sarcone’s office has also subpoenaed information relating to a lawsuit James brought against the National Rifle Association. Her bid to dissolve the NRA did not succeed, but she did force legal-compliance reforms after a jury found two of the organization’s top officials liable for financial misconduct amounting to over $7 million. The NRA endorsed Trump in the 2024 campaign, and the now-president committed to “roll back every Biden attack on the Second Amendment.”

I’ve previously written about Sarcone, one of several loyalists Trump has appointed on an interim basis, although it seemed highly unlikely they could be confirmed by the Senate — as is required by federal law for district U.S. attorneys.

Under Section 546 of Congress’s laws pertaining to U.S. attorneys, a president (through the attorney general) can fill a vacancy in the U.S. attorney’s position with one or more interim appointees for a single 120-day period. After that, the interim appointee may continue only if the district court approves. If the district court votes down the president’s appointee, it may name its own appointee to fill the vacancy; but a stalemate is sure to ensue because the president has constitutional authority to remove the court’s appointee.

In July, the NDNY district judges, who skew Democratic, refused to approve Sarcone beyond the 120-day limit. Obviously aware that Trump would fire anyone they chose to fill the position, the judges did not attempt to name a replacement.

To circumvent the mandate of Senate confirmation, Attorney General Bondi named Sarcone a “special attorney to the Attorney General” and appointed him the NDNY’s first assistant U.S. attorney (FAUSA — the No. 2 position in the office). He thus continues to act as the de facto U.S. attorney even though he is not qualified by law to be appointed to that position.

As I explained on Wednesday, in connection with a similar controversy over the Trump DOJ’s installation of Bilal Essayli as the de facto U.S. attorney in Los Angeles (the Central District of California), a federal judge has reluctantly concluded that the administration’s tactics, though unsavory, are not prohibited. Judge J. Michael Seabright (a Bush-43 appointee) observed that congressional statutes give the attorney general sweeping authority to oversee law enforcement in federal districts and to delegate subordinates to carry out such duties.

The judge further pointed out that, as a matter of law, assistant U.S. attorneys (AUSAs) — the federal prosecutors who handle cases day-to-day — derive their authority to prosecute from the attorney general and the Justice Department, not from the district U.S. attorney who hires them. Consequently, their prosecutorial actions — such as issuing subpoenas — may be legitimate and enforceable, even if the person acting as U.S. attorney is not statutorily qualified for that position.

I believe Judge Seabright is right, even though I share his view that this is a perverse outcome and not one that congressional statutes were meant to achieve.

Hence, assuming that the subpoenas to James’s office were issued by AUSAs (as they tend to be) rather than Sarcone, they will be enforceable. In fact, even if Sarcone issued them, the subpoenas would probably still be enforceable because — although he is ineligible to be an interim or acting U.S. attorney — he appears qualified to serve as FAUSA and thus to carry out prosecutorial functions.

James may well have worthy objections to the Trump DOJ’s subpoenas based on federalism principles — the Constitution’s vertical separation of powers between the federal government and the states, which are sovereign in their own law-enforcement capacity. And the Trump DOJ should think twice about what it’s doing: If a federal prosecutor may subpoena a state attorney general about the state’s prosecutorial actions and decisions, I see no reason why a state attorney general could not similarly subpoena the Justice Department and other federal authorities.

This smacks of mutually assured lawfare destruction. There is no sign that it will abate any time soon.