A US attorney appointment dispute is heading toward the Supreme Court after a federal appeals panel concluded that a top prosecutor in New York was not lawfully holding his position when he sought records from the state attorney general’s office.

The Justice Department confirmed Friday that it intends to challenge the decision at the highest level.

What the Appeals Court Decided

The U.S. Court of Appeals for the 2nd Circuit ruled 2-1 that John A. Sarcone III was not serving lawfully as acting U.S. attorney for the Northern District of New York at the time he obtained subpoenas directed at Attorney General Letitia James’s office.

The panel affirmed a lower court ruling that had already quashed those subpoenas and removed Sarcone from the investigations entirely.

The majority consisted of Judge Maria Araújo Kahn, appointed by President Biden, and Judge Guido Calabresi, appointed by President Clinton. Judge Michael Park, a Trump appointee, filed a separate dissent.

The Subpoenas at the Center of the Case

Issued in August 2025, the subpoenas sought materials connected to investigations that James’s office had conducted involving the National Rifle Association, the president and his family business.

James contested them on several grounds, including the argument that Sarcone simply did not possess the legal authority to issue them in the first place. The courts have now agreed with that position twice.

How Sarcone Ended Up in the Role

The path to his appointment explains why the legal question arose.

In March 2025, Sarcone received an interim appointment as U.S. attorney, a designation that carries a 120-day limit. When that window closed, district judges declined to extend his service, which under normal circumstances would have ended his tenure.

Instead, then-Attorney General Pam Bondi named him both a special attorney and first assistant U.S. attorney. That combination was intended to allow the administration to designate him acting U.S. attorney under the Federal Vacancies Reform Act.

Why the Court Rejected the Arrangement

In a 27-page opinion, the appeals panel examined how the vacancies statute actually operates and found the maneuver incompatible with it.

The key point concerned timing. Under the law, a first assistant may automatically step into an acting role only when that individual already occupied the first assistant position at the moment the vacancy arose.

The opinion described the alternative approach in pointed terms, stating that naming someone first assistant after a vacancy has already opened does not constitute automatic succession at all. Instead, the court characterized it as a deliberate and discretionary selection made outside the criteria Congress established.

That distinction matters because the statute was designed to provide continuity, not to create a mechanism for choosing preferred candidates without going through confirmation.

The Justice Department Pushes Back

The department responded quickly and briefly through its rapid response account, stating that it disagrees with the ruling and plans to bring the case before the Supreme Court.

No timeline was provided for filing.

A Recurring Problem for the Administration

The Sarcone ruling is not an isolated setback. It arrives amid a series of similar decisions involving prosecutors installed through comparable methods.

Earlier this week, an appeals court determined that Sigal Chattah was serving unlawfully as Nevada’s acting U.S. attorney.

Before that, a federal appeals court reached the same conclusion regarding Alina Habba’s service as New Jersey’s top federal prosecutor.

Three separate circuits examining three different appointments have arrived at compatible conclusions, which strengthens the argument that the underlying strategy conflicts with the statute rather than reflecting isolated procedural errors.

The Constitutional Backdrop

U.S. attorneys ordinarily require Senate confirmation, a requirement rooted in the appointments framework of the Constitution. Temporary mechanisms exist precisely because vacancies happen and prosecutions cannot simply pause.

The tension in these cases involves how far those temporary mechanisms can be stretched. Interim appointments carry time limits. Court-extended appointments require judicial approval. The vacancies act provides another route, but with conditions attached.

Critics argue that chaining these authorities together in sequence effectively creates permanent appointments that never face Senate scrutiny. Defenders counter that the executive branch needs flexibility to keep offices staffed when confirmation stalls.

Practical Consequences

For the immediate case, the effect is straightforward. The subpoenas are void, and Sarcone cannot participate in the investigations.

More broadly, rulings of this kind raise questions about other actions taken by prosecutors whose appointments are later found defective. Charging decisions, plea agreements and investigative steps may all face challenges depending on how courts handle the issue.

What Happens Next

A Supreme Court petition does not guarantee review. The justices accept only a small fraction of cases presented to them.

That said, the circumstances here favor consideration. Multiple circuits have now addressed similar questions, the issue involves the separation of powers, and the federal government is actively seeking clarity.

Should the Court take the case, its ruling would likely settle how far the executive branch can go in filling prosecutorial offices without Senate involvement, a question with implications extending well beyond any single administration.