Lawyers for Attorney General Letitia James are fighting a subpoena from federal prosecutors based in Albany by arguing that Acting U.S. Attorney John Sarcone wasn’t validly appointed to his position, according to two people familiar with the matter.
Sarcone, who has no previously prosecutorial experience, subpoenaed documents from James’ office related to cases she brought against President Trump and the National Rifle Association. That case centered on inappropriate spending by executives of the gun-rights group. James in 2022 sued Trump and his business for fraud. A judge fined Trump more than $350 million, but the penalty has been set aside as the case is appealed.
Trump has said he was targeted in a “witch hunt” and pushed leaders of the Department of Justice to go after James. She pleaded not guilty in a Virginia court last week to two counts related to alleged mortgage fraud, charges she said are politically motivated.
James’ lawyers filed a motion challenging her indictment in Virginia, arguing that prosecutor Lindsey Halligan wasn’t properly appointed. A different set of James’ lawyers is taking the same tactic with Sarcone — whose investigation is in an earlier stage, according to people familiar with the matter.
Outside lawyers hired by the state attorney general’s office filed a motion opposing the subpoena on the grounds that Sarcone is not validly serving as a U.S. attorney, said the people, who requested anonymity because they weren’t authorized to speak publicly. The motion is pending in the Southern District of New York, the people said, because of the potential for conflicts in the Northern District.
James’s spokesperson declined to comment. Sarcone didn’t return messages seeking comment. A spokesperson for his office declined to comment.
Trump has bypassed the traditional appointment process, which requires U.S. Senate confirmation, for federal prosecutors across the country. The approach allowed the Republican president to quickly install loyalists in key prosecutorial offices. But it’s come with some risks.
A judge in California ruled Tuesday that the Acting U.S. Attorney in Los Angeles couldn’t serve as the top prosecutor in southern California because of his circumspect appointment. Similar cases regarding Halligan and Alina Habba in New Jersey are pending.
Attorney General Pam Bondi installed Sarcone as an interim U.S. attorney in the spring, which allowed him to serve for 120 days. He was a non-traditional choice: He had never worked as a prosecutor, but worked for the General Services Administration during Trump’s first term and was an election lawyer for his campaign. Sarcone unsuccessfully sought the GOP nomination to run for attorney general against James in 2022.
Federal law allows judges in a district to appoint a U.S. attorney if the post is vacant or an interim prosecutor’s term expires. Sarcone made his pitch for a permanent appointment to the judges in the Northern District, which includes Albany and Syracuse, but they declined to install him in July.
Bondi then appointed Sarcone as the first-assistant U.S. Attorney in Albany. He now serves as acting U.S. Attorney because the top position is vacant. New York County Lawyers Association President Richard Swanson said the maneuvers are part of Trump’s politicization of the justice system.
“Both Sarcone and Habba are obviously political players, and they're important to the Trump administration and to the achievement of its goals,” Swanson said.
Sarcone said in September that he believed his position would withstand any challenges.
“My status is confirmed,” he said. “I think it would be a waste of … taxpayer resources to defend [my appointment]. I think that everyone who has seen what I've been doing here is satisfied that I'm doing the job that I was sent here to do.”
