Amicus Briefs Published April 8, 2026

In Re Grand Jury Subpoenas to the Office of the New York State Attorney General v. United States — Unlawful Appointments

U.S. Court of Appeals for the Second Circuit

Issue Areas
  • Rule of Law

In This Resource
Background

In March 2025, U.S. Attorney General Pam Bondi appointed John Sarcone III to serve as the U.S. attorney for the Northern District of New York on an interim basis. In July, federal judges in New York had the opportunity to permanently appoint Sarcone. But the judges declined, instead opting to wait for a new appointee to be confirmed by the U.S. Senate.

After the judges’ decision, Sarcone’s tenure leading the office should have ended. Instead, the Justice Department used a series of maneuvers to change his title, keeping him in charge as the highest-ranking official in the office.

As the head of the office, Sarcone issued subpoenas to the office of New York Attorney General Letitia James, one of President Trump’s political rivals, as part of an investigation into lawsuits she brought against Trump and his allies.

James challenged the subpoenas in court, arguing that Sarcone was unlawfully serving as acting U.S. attorney and had no authority to issue them. A federal judge agreed, throwing out the subpoenas and disqualifying Sarcone from continuing to serve in the role.

“[O]n the same day that the judges declined to extend Mr. Sarcone’s appointment, the Department took coordinated steps — through personnel moves and shifting titles — to install Mr. Sarcone as Acting U.S. Attorney. Federal law does not permit such a workaround,” the judge wrote.

The Justice Department appealed the ruling, arguing that Sarcone’s appointment was lawful and seeking to reinstate the subpoenas.

Amicus brief

On April 6, the Society for the Rule of Law and its executive director, Gregg Nunziata, and charter members Donald Ayer, Stuart Gerson, Alan Raul, and Stanley Twardy Jr. filed an amicus brief supporting the judge’s ruling below in the appeal before the U.S. Court of Appeals for the Second Circuit.

The amici, represented by States United, point out in the brief that the Appointments Clause of the U.S. Constitution and federal statutes passed by Congress created a process for U.S. attorneys to be appointed. It is standard practice that such positions are subject to Senate confirmation, though Congress also gave courts the power to check the executive branch for interim appointments. This balance of power ensures that no presidential administration can unilaterally appoint their preferred prosecutors. Attorney General Pam Bondi’s appointment of Sarcone unlawfully circumvented the Senate’s “essential” advice-and-consent role and flouted federal law, the brief argues.

Additionally, the brief argues that allowing Sarcone’s appointment to stand would undermine the rule of law by emboldening the Trump administration to pursue politicized investigations and prosecutions of the president’s perceived rivals.

“The consequences of the administration’s attempted end-run around federal law are clear,” the brief explains. “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.”

The group urges the court to uphold the district court ruling that disqualified Sarcone and quashed the Justice Department’s subpoenas.

Latest update

Oral arguments are scheduled for May 4, 2026.

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