Conservative and Libertarian Legal Experts Warn Trump Administration’s Effort to Install Acting U.S. Attorney Threatens Rule of Law
Amicus Brief Highlights Senate Authority Over U.S. Attorney Appointments; Urges Court to Uphold Ruling That Administration Illegally Installed John Sarcone III
NEW YORK — A group of conservative and libertarian legal experts, represented by the States United Democracy Center, filed an amicus brief in In Re Grand Jury Subpoenas to the Office of the New York State Attorney General v. United States, a case before the U.S. Court of Appeals for the Second Circuit. The brief urges the court to affirm the district court’s ruling that the Trump administration unlawfully installed John Sarcone III as acting U.S. Attorney for the Northern District of New York, arguing that the move violated constitutional checks and balances and federal statutes governing U.S. attorney appointments.
The brief explains that the Constitution and federal law require U.S. attorneys to be confirmed by the Senate and place strict limits on temporary appointments. According to the experts, the administration ignored those limits when it tried to keep Sarcone in office after the 120-day period for his interim appointment had expired. The district court ruled that the move was unlawful, and amici urge the Second Circuit to uphold that decision. The brief warns that allowing any administration to sidestep the Senate confirmation process would weaken the system of checks and balances between the executive branch, Congress, and the courts.
Amici also warn of the broader risks when federal prosecutors are installed unlawfully. The brief argues that maneuvering around statutory limits to keep preferred prosecutors in power threatens the integrity of U.S. attorney offices and risks enabling politically motivated investigations and prosecutions.
“The Constitution is clear: Federal prosecutors must be free from political interference, and our system of checks and balances exists to protect that independence,” said Erin Flynn, Senior Counsel at the States United Democracy Center and former attorney at the U.S. Department of Justice. “When that system is evaded, it weakens the safeguards that protect the fair and impartial administration of justice. As the signatories to this brief explain, federal prosecutors serve the public and the Constitution—not the political interests of any one president.”
The brief was filed on behalf of the Society for the Rule of Law, a national membership organization of conservative and libertarian lawyers and other like-minded constitutionalists who prioritize the defense of the rule of law, the Constitution, and American democracy above their partisan and policy preferences. Individual amici include Executive Director Gregg Nunziata and charter members Donald Ayer, Stuart Gerson, Alan Raul, and Stanley Twardy, Jr., all of whom previously served in senior roles in Republican administrations, including as Deputy Attorney General, Acting Attorney General, senior White House counsel, and U.S. Attorney.
Key excerpts from the brief include:
“The consequences of the administration’s attempted end-run around federal law are clear. Its actions threaten the legitimacy of prosecutions, the credibility of U.S. Attorney’s offices, and the fair and impartial administration of justice. The case on appeal demonstrates as much. It shows a Justice Department wielding its prosecutorial power to investigate a perceived political adversary to retaliate for prior civil litigation against the President. And it shows a Justice Department that prioritizes settling scores above competence and character and the fair administration of justice.”
“Moreover, political investigations and prosecutions send a message that failure to capitulate to the president’s whims exposes even very powerful people and offices to trumped-up criminal investigation. Even where the district court may quash a subpoena, as here, politicized investigations and prosecutions seek to discredit political opponents, public officials, and government institutions; they impose legal costs and seek to denigrate political adversaries (real or imagined) while chilling the speech of others. Politicized prosecutions harass their targets by consuming their time and resources, tarnishing their reputations, and impeding their future opposition efforts.”
“The threat of vindictive, politicized investigations and prosecutions reaffirms the importance of upholding our constitutional system of robust checks and balances to ensure that qualified individuals committed to the fair and impartial administration of justice inhabit the top role in each U.S. Attorney’s office.”
Read a summary of the brief here.
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About the States United Democracy Center
States United is a nonpartisan 501(c)(3) organization dedicated to the rule of law and free, fair, secure elections. We provide direct support to state officials and law enforcement leaders as they uphold the law and our system of checks and balances, protect public safety, defend elections, and preserve our democracy. For more information, visit statesunited.org.