A federal appeals court has ruled that a US attorney appointed by President Donald Trump is serving unlawfully and can no longer participate in the investigation of New York Attorney General Letitia James, one of Trump’s prominent political opponents.

The Second Circuit Court of Appeals issued the ruling in a 2-1 decision, upholding a lower court finding that John A. Sarcone III, who had been serving as acting US attorney for the Northern District of New York, was not lawfully appointed to the position.

The ruling also disqualifies Sarcone from taking part in the federal investigation into James, adding to growing legal challenges over the Trump administration’s method of appointing US attorneys without Senate confirmation.

Justice Department to appeal

The Justice Department said it disagreed with the decision and plans to take the case to the US Supreme Court.

The ruling marks the third time a federal appeals court has found the administration’s process for installing US attorneys without Senate approval unlawful.

Earlier this week, the Ninth Circuit Court of Appeals ruled that Nevada US Attorney Sigal Chattah was also serving unlawfully. The Justice Department said it would appeal that decision as well.

In December, the Third Circuit ruled that Alina Habba had not been validly appointed as US attorney for New Jersey.

The Fourth Circuit is expected to hear arguments next month over the legality of the appointment of former Trump lawyer Lindsey Halligan as US attorney for the Eastern District of Virginia.

Ruling could affect federal cases

The consequences of the court decisions have varied depending on how the cases were handled.

When an unlawfully serving US attorney acted alone, courts have dismissed underlying indictments or subpoenas. That has included a subpoena and separate indictment involving James, as well as a perjury indictment against former FBI Director James Comey.

In cases where other properly appointed assistant US attorneys participated in the proceedings, courts have allowed the underlying indictments to remain in place.

Sarcone remains First Assistant US attorney and continued working in that capacity. He held a news conference Thursday announcing a criminal complaint against a woman accused of involvement in an ISIS-inspired plot targeting the state Capitol in Albany, New York.

Court rejects DOJ’s appointment argument

The majority opinion was authored by Judge Maria Araujo Kahn, a Biden appointee, and joined by Judge Guido Calabresi, who was appointed by former President Bill Clinton.

The judges rejected the Justice Department’s argument that the administration could appoint a new First Assistant after a vacancy and then have that person assume the acting US attorney role.

The judges said the Federal Vacancies Reform Act allows the First Assistant already holding the position when the vacancy occurs to automatically assume the acting role. They concluded that installing a new First Assistant after the vacancy to bypass Senate confirmation did not satisfy the law.

The court also noted that the government had acknowledged Sarcone could no longer continue as acting US attorney because his tenure had exceeded the 210-day limit under the Federal Vacancies Act.

The judges pointed out that Trump had not submitted a nominee to the Senate and that Sarcone remained the effective head of the office.

Trump-appointed judge dissents

Judge Michael Park, who was appointed to the Second Circuit by Trump, dissented from the ruling and sided with the Justice Department.

Park argued that the law should be interpreted to allow any First Assistant at a vacant US attorney’s office to assume the acting position, subject to the statutory time limits.

He also argued that the majority’s interpretation could hamper the executive branch during periods of political transition and Senate deadlock.

The decision adds another layer of uncertainty to the Justice Department’s efforts to install acting US attorneys without Senate confirmation and could have broader implications for federal investigations and prosecutions handled by those officials.