The Second Circuit Court of Appeals ruled that the government's practice of appointing first assistants to serve as U.S. Attorneys to circumvent Senate confirmation violates the Federal Vacancies Reform Act.
Posted by The Lawfare Podcast, Checked
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- 7 support
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The Lawfare PodcastSep 14, 2026
The Second Circuit's August 21, 2026 decision (In re Grand Jury Subpoenas to the Office of the NY AG, No. 26-156) held that John Sarcone was not lawfully serving as acting U.S. Attorney because the FVRA permits only a first assistant in place when the vacancy arises to become acting officer, and that the general delegation of U.S.
What was said
… Attorney, and that maneuver failed, and that's what they want to take to the Supreme Court. Now, this Same thing happened with John Sarcone, Northern District New York. The Second Circuit, two, two, two weeks ago, you covered this while I was on vacation, also found that that maneuver violates the Federal Vacancies Reform Act, and the government has said that it will not seek en banc review. It will go directly to the Supreme Court on that. It will file cert petition before October 5th, maybe well before. …
The Lawfare Podcast · · from the transcriptPost →What we found
Supports. The Second Circuit opinion states it holds Sarcone was not Acting U.S. Attorney because the FVRA allows only a First Assistant already in place when the vacancy arises to become acting officer automatically.[2]
Supports. The court further held that the general delegation of U.S. Attorney duties to Sarcone was an unlawful use of delegation authority to circumvent the FVRA's exclusivity provision, matching the claim's 'circumvent Senate confirmation' framing.[2][4]
Supports. Multiple independent outlets (Reuters, AP coverage, CBS News, Law&Crime) report the 2-1 ruling finding the appointment unlawful under the Federal Vacancies Reform Act.[1][3][5]
Supports. Commentary notes the court rejected the first-assistant-after-vacancy mechanism as unlawful circumvention of Senate confirmation.[6][7]
Context. Reuters describes the ruling as the third appeals court rejection of Trump efforts to bypass the U.S. Attorney appointment process, and the DOJ said it would seek Supreme Court review.[1][6]
Sources
7 sources: 1 fact-checker, 1 primary, 1 tier 2, 4 not rated
- 1Appeals court upholds block on US Justice Department ... - Reutersreuters.com · fact-checker · cited for: supports, context
- 2United States Court of Appeals for the Second Circuitww3.ca2.uscourts.gov · primary source · cited for: supports
- 3Appeals court says federal prosecutor who subpoenaed Letitia James was unlawfully appointedcbsnews.com · tier 2 · cited for: supports
- 4WORTH NOTING—Federal appeals court cases of note - VitalLaw.comvitallaw.com · not rated · cited for: supports
- 5Trump DOJ's Letitia James subpoenas still quashed: 2nd Cir.lawandcrime.com · not rated · cited for: supports
- 6Appeals court affirms top federal prosecutor in Albany ‘not...ground.news · not rated · cited for: supports, context
- 7Second Circuit Finds US Atty For Northern New York ...fd.org · not rated · cited for: supports
Where this claim was made
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Related claims
- The Department of Justice will not seek en banc review of the Second Circuit's ruling regarding the appointment of U.S. Attorneys and will instead file a cert petition with the Supreme Court before October 5th.Can’t tell
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