Concerns Over Presidential Appointments Without Senate Approval
In New York, a federal appeals court scrutinized the Trump administration’s method of appointing interim federal prosecutors without obtaining U.S. Senate confirmation. This issue was raised during a review of a judicial decision deeming John Sarcone’s position as the top prosecutor in New York’s northern district as unlawfully appointed, with his actions potentially voidable.
During the court session, Circuit Judge Maria Araújo Kahn expressed concerns about bypassing the Senate’s role, saying, “That individual can bypass Senate approval of any U.S. attorney by just continuously appointing a first assistant for the purpose of making them active U.S. attorney. When would it end?”
U.S. District Judge Lorna G. Schofield had previously disqualified Sarcone from issuing subpoenas in a case involving New York Attorney General Letitia James.
Many interim U.S. attorneys, including Sarcone, appointed by the administration, have been found to be unlawfully holding their positions. Typically, U.S. attorneys require Senate confirmation, and their interim service is limited. However, under Trump, the Justice Department has extended these terms indefinitely, often through contentious personnel strategies later deemed improper by courts.
In a related case, Alina Habba resigned as New Jersey’s top federal prosecutor after an appeals court ruled her appointment unlawful (source). Similarly, Lindsey Halligan left her Virginia post after a judge ruled her appointment unlawful, leading to the dismissal of charges she had filed against James and former FBI Director James Comey (source).
Judge Guido Calabresi remarked on the potential loophole that allows indefinite reappointment of the same individual, rendering the 200-day limit meaningless. He noted that the 2nd Circuit might allow Sarcone to investigate James irrespective of his formal position.
Henry Whitaker, representing the Justice Department, argued that Congress provided mechanisms for temporary appointments, which were used to authorize Sarcone’s actions in New York.
Appointed by then-U.S. Attorney General Pam Bondi in March 2025, Sarcone remained in his role past the legal limit without full Senate approval, prompting judges to appoint Donald Kinsella, only for him to be dismissed by then-Deputy Attorney General Todd Blanche, who stated, “Judges don’t pick U.S. Attorneys,” and announced Kinsella’s termination on social media.
Attorney Donald Beaton Verrilli Jr., representing New York’s attorney general, criticized the absence of a formal nomination process for over a year, suggesting the administration seeks to evade Senate scrutiny in its investigation against the Attorney General’s office.
The appellate judges have yet to make a decision.
