August 21, 2026 · Constitutional Order & Rule of Law
· Court ruling
Confirmed
Appeals Court Rules Trump's Albany U.S. Attorney Is Serving Unlawfully and Bars Him From the Letitia James Investigation
The Second Circuit ruled 2-1 on Aug. 21 that John Sarcone, the Trump-picked U.S. attorney in Albany, was not lawfully serving as acting U.S. attorney and is disqualified from the investigation of New York Attorney General Letitia James, upholding a January ruling by Judge Lorna Schofield. Judges Maria Araujo Kahn and Guido Calabresi held that under the Federal Vacancies Reform Act only the person already serving as First Assistant when the office becomes vacant can step up; the government's reading, they wrote, "rewards evasion and penalizes compliance." Judge Michael Park dissented.
It is the third time a federal appeals court has rejected the administration's method of installing U.S. attorneys without Senate confirmation, after the Ninth Circuit on Nevada's Sigal Chattah days earlier and the Third Circuit on New Jersey's Alina Habba in December. Where such a prosecutor acted alone, the resulting subpoenas or indictments were dismissed. The court noted no nominee has been sent to the Senate.
The Justice Department said it disagrees and "intend[s] to take this case to the Supreme Court." Sarcone remains First Assistant and still runs the office. The Fourth Circuit hears argument next month on Lindsey Halligan's appointment in Virginia.
It is the third time a federal appeals court has rejected the administration's method of installing U.S. attorneys without Senate confirmation, after the Ninth Circuit on Nevada's Sigal Chattah days earlier and the Third Circuit on New Jersey's Alina Habba in December. Where such a prosecutor acted alone, the resulting subpoenas or indictments were dismissed. The court noted no nominee has been sent to the Senate.
The Justice Department said it disagrees and "intend[s] to take this case to the Supreme Court." Sarcone remains First Assistant and still runs the office. The Fourth Circuit hears argument next month on Lindsey Halligan's appointment in Virginia.
Legal outcome: Second Circuit affirmed 2-1 on Aug. 21, 2026 that John Sarcone was not validly appointed acting U.S. attorney and is disqualified from the Letitia James investigation; the Justice Department says it will appeal to the Supreme Court.