Top Albany Prosecutor Returns as Trump Tests Vacancy Powers (2)

The Trump administration has renewed John Sarcone’s tenure as Albany’s chief prosecutor days after the federal court declined to step in, in an unusual maneuver by an administration testing the bounds of its appointment authorities.

Sarcone is now serving as acting US attorney for the Northern District of New York, following the expiration earlier this week of his 120-day term as interim top prosecutor under a separate law.

A spokesperson for the prosecutor’s office said that Attorney General Pam Bondi appointed Sarcone as “Special Attorney to the Attorney General” as well as the district’s “First Assistant U.S. Attorney,” and he is now acting leader under federal vacancy law.

Sarcone’s appointment as special attorney means he is authorized to conduct any kind of legal proceedings that US attorneys may conduct, according to a letter to him from human resources staff for the Justice Department unit that supports US attorneys’ offices, obtained by Bloomberg Law.

The letter also states that his appointment is “indefinite but may be terminated at any time.”

The Albany Times Union first reported Sarcone’s new title.

Temporary Titles

To serve in successive terms as acting and interim US attorney is relatively rare in modern US history, said Jennifer Selin, an associate professor at the Arizona State University Sandra Day O’Connor College of Law who researches US attorney appointments.

Selin said she is aware of fewer than a dozen instances, between 1987 and 2016, where the same person held both titles consecutively, in either order.

The move may allow Sarcone to serve more than 600 days as an acting official under the vacancy statute, effectively bypassing the Senate for much of President Donald Trump’s second term, according to Selin. The vacancy law permits acting officials to serve initially for up to 210 days, followed by up to two more 210-day stints if nominations for the seat fail in the Senate.

The succession maneuver shows the administration’s willingness to strategically exercise its powers under various vacancy laws, in an effort to keep preferred temporary officials serving in roles who likely wouldn’t be confirmed by the Senate.

Selin said the Trump administration is “notable, although not exceptional” in relying on acting officials for hard-to-confirm seats.

“This is a practice that presidents have used over the past several decades as polarization has increased,” Selin said.

The federal district court may select a replacement after an interim term expires under federal law, but the court announced earlier this week that its board of judges had declined to exercise its authority to pick a US attorney for the district. Sarcone recently drew controversy after the Times Union reported in June he’d listed a boarded-up building as his primary residence.

Other Offices

The Trump administration has also tapped two successive interim leaders to serve as chief prosecutor in Washington. The Justice Department tapped former Fox News host Jeanine Pirro for a 120-day term after the expiration of the tenure of her predecessor Ed Martin, after it was clear he didn’t have the votes to advance in the Senate.

The White House hasn’t formally nominated Sarcone for the role, and he would face an uphill battle to be confirmed.

Senate Minority Leader Chuck Schumer (D-N.Y.) has announced plans to put a hold on all political Justice Department nominees — slowing the confirmation process — in protest of Trump receiving a gifted jet from the Qatari government.

Schumer and New York’s other Democratic senator, Kirsten Gillibrand, also have veto power over US attorney nominees in their home state under the Senate’s blue-slip custom.

This practice could thwart the administration’s efforts to install conservative US attorneys in blue states, and lead the administration to rely on acting leaders in those seats.

Alina Habba, Trump’s former personal lawyer who is leading the US attorney’s office in New Jersey, will see her interim term expire next week. Trump has nominated her for the seat, teeing up a battle with the state’s two Democratic senators.