I am not sure everyone realizes this, but there is a window to appoint an “acting” U.S. attorney after taking over as president.
The window is 120 days, and several appointments made by Donald Trump have run afoul of that window. Acting U.S. attorneys also have to be approved by a panel of federal judges, and if they are not, they are supposed to be removed from their roles.
Lindsey Halligan was the first to fall, and now a judge has ruled that John Sarcone III was also the subject of an illegitimate appointment.
Halligan replaced acting U.S. Attorney Erik Siebert.
Siebert was replaced because he refused to prosecute New York Attorney General Letitia James and former FBI Director James Comey.
Halligan hit the ground running after she was appointed as acting U.S. attorney for the Eastern District of Virginia on Sept. 22 of last year.
That was well after the applicable window of 120 days, which expired in May. That being the case, the indictments she secured were tossed because she was not considered to have been legally appointed (this could possibly be challenged by the Vacancies Act).
Attorney General Pam Bondi had two choices after the cases against James and Comey were tossed. She could have appealed the rulings or refiled charges.
Bondi chose the latter for James, but she failed to secure an indictment from a grand jury the second time around.
This led to a victory lap from James, who stated, "As I have said from the start, the charges against me are baseless. It is time for this unchecked weaponization of our justice system to stop."
With another loss in hand, Bondi announced that she would appeal the initial ruling. As far as the Comey case goes, if Bondi wants to bring charges against him, she only has the option to appeal because the statute of limitations ran out on Comey's alleged crimes just days after the first charges were filed.
This leads us to the appointment of Sarcone III, whose appointment occurred on March 4 and was rejected by federal judges in July. This is an identical situation to that that befell Alina Habba, who was acting U.S. attorney in New Jersey, but was subsequently declared unlawfully appointed once a panel of judges declined to approve her permanently.
In August, a month after he should have been removed from the post, Sarcone issued subpoenas to James’ office, a move that was not based on any proper authority, since he had already been denied by the panel of federal judges.
Judge Lorna Schofield, a Barack Obama appointee, just nixed further probing into James, stating, “When the Executive branch of government skirts restraints put in place by Congress and then uses that power to subject political adversaries to criminal investigations, it acts without lawful authority. Subpoenas issued under that authority are invalid. The subpoenas are quashed, and Mr. Sarcone is disqualified from further participation in the underlying investigations.”
This is not a rogue judiciary, as it will be characterized by some, but rather the result of basic rules set for the DOJ to follow. This would be happening regardless of who was in office, and I cannot help but wonder why we keep running into this issue. Is it incompetence on Bondi's part or just defiance?
