Another Day, Another Fake MAGA Prosecutor

Senate confirmation is for suckers.

On Friday, the Trump Justice Department got a very unwelcome treat from Judge Lorna Schofield. No, not a Bit-O-Honey! It was an unsealing order in federal court in New York. The DOJ tried every trick in the book to hide its harassment of New York Attorney General Letitia James, but the judge unwrapped the case anyway.

On August 5, the US Attorney’s Office for the Northern District of New York (NDNY) subpoenaed the New York Office of the Attorney General (OAG) for the entire record in two cases: New York v. Trump and New York v. National Rifle Association. The political implications don’t need to be spelled out, but of course Trump and his minions did it anyway.

After Trump was found liable for civil fraud, he and his lawyers brayed for retribution. Future Attorney General Pam Bondi huffed that New York Attorney General Letitia James “needs to be looked at.” And Trump, who recently pushed out his own nominee as US Attorney for the Eastern District of Virginia for failing to indict James, called her a “reverse racist” who “illegally” sued the NRA.

The OAG moved to quash the federal subpoenas, filing lawsuit which implicates two of the most persistent legal issues of Trump’s second term: weaponization of the Justice Department and installing MAGA lackeys as US Attorneys without Senate confirmation.

Asked and answered

The legal sufficiency of the civil fraud cases against Trump and the NRA has been thoroughly litigated. The defendants argued over and over that the charges were unsubstantiated, tainted by bias, or otherwise defective. Trump sued James in multiple federal courts seeking to ward her off, as did the NRA, which also tried to two-step its way out of New York into Texas by means of a comically fraudulent bankruptcy filing. None of it worked. Court after court agreed that the cases were appropriately predicated, and Trump and the NRA were both found liable for years of fraud. On appeal, Trump has so far managed to reduce the penalty, but the verdict stands.

With the reins of the Justice Department in his hands, though, Trump is now demanding retribution. According to the New York Times, the DOJ aims to criminally charge his enemies for civil rights violations under 18 USC § 242. The Times suggests that using § 242 in this way would be “remarkable,” since the law is more often used to hold accountable public officials who discriminate on the basis of race. A more apt term might be “perverse.”

In its motion to quash, the OAG argues that the subpoenas for millions of pages of internal prosecutorial deliberations were issued in transparently bad faith and “unreasonably interfere with the State of New York’s sovereignty.” Moreover, they insist that the subpoenas are null and void because the US Attorney who issued them was illegally appointed.

Another dress-up prosecutor

The author of this perversion is John Sarcone, III, who was installed as US Attorney for NDNY following a now-familiar pattern. On March 17, Trump tapped Sarcone, a MAGA loyalist who never worked as a prosecutor, to lead the office in Albany. Sarcone’s tenure has been lackluster at best. In June he claimed that a man on the street outside a hotel lunged at him and threatened to kill him. That encounter turned out to have been rather different from Sarcone’s description. But it led to an investigation by the Albany Times Union which revealed that Sarcone’s putative residence in the district was actually a boarded-up vacant property. That in turn led to an ethics complaint after Sarcone removed the paper and its journalists from approved media lists.

In short, Sarcone is exactly the kind of guy who would abuse the grand jury process to seek revenge on Trump’s nemesis.

After Sarcone’s 120-day interim appointment timed out, he claimed that he’d been given the nod to stay on by the district’s judges, pursuant to 28 USC § 546. He had not. Instead, AG Bondi purported to keep him on the job by appointing him as the first assistant US Attorney at NDNY, and having him succeed himself as acting US Attorney by operation of the Federal Vacancies Reform Act (FVRA). Alternatively, she appointed him a “special attorney” authorized to conduct “any kind of legal proceedings, civil or criminal, including Grand Jury proceedings and proceedings before United States Magistrates, which United States Attorneys are authorized to conduct.”

This may have been the first time Bondi tried this wheeze, but it wasn’t the last. She executed the same maneuver in New Jersey, Nevada, and California, and courts rejected it every time. In each of those cases, the motions to disqualify the district’s chief prosecutor were assigned to out-of-district judges to avoid potential conflict. And since the OAG’s motion to quash the subpoena in Albany challenged legality of Sarcone’s appointment, it was assigned to Judge Schofield, a senior judge brought in from the Southern District of New York.

It’s not a secret if we all know about it

Because grand jury matters are presumptively secret, the court clerk docketed the OAG’s motion to quash the Sarcone subpoenas under seal — that is, it did not appear on the public docket. But here the existence of the subpoenas and the DOJ’s “civil rights” investigation was widely reported, and so the OAG filed a motion to unseal, effectively heading off the government’s effort to hide its harassment campaign in the jury room.

On Halloween, Judge Schofield ruled that unsealing was not only permissible, but mandatory.

“The ‘special circumstances’ of this case -- namely that the grand jury information at issue is not secret and that the motion to quash implicates questions of national concern -- weigh decisively in favor of unsealing,” she wrote, noting the widespread interest in potential weaponization of the DOJ, intrusions on state sovereignty, and the illegal appointment of (yet another) US Attorney.

None of this bodes well for Sarcone, who has to prove to Judge Schofield that he’s entitled to stay on the job. In New Jersey, Nevada, and California, trial judges ruled that Trump’s lackeys were unlawfully appointed using the identical first assistant/special attorney ploy. But in each case, the court denied the defendants’ motion dismiss, since other, legally-appointed lawyers participated in their prosecutions. Judge J. Michael Seabright went further, ruling that Bill Essayli, the goon who overstayed his welcome as the US Attorney for the Central District of California, could still exercise authority as the first assistant.

But in the Eastern District of Virginia, Bondi appears to have gotten sloppy. She never made Trump’s insurance lawyer Lindsey Halligan the first assistant or a special attorney. She simply installed her as interim US Attorney — a move that has been rejected by three different courts now. Halligan’s position is thus uniquely vulnerable, as are the indictments of AG James and former FBI director James Comey. Halligan signed the indictments herself, since no other lawyer in EDVA would get near those cases. So, if her appointment is illegal, then those indictments are likely a nullity.

Sarcone will have to argue that his position is more like Essayli’s than Halligan’s. On the one hand, his name is the only one on the subpoenas, which he signed as “Acting United States Attorney.”

On the other, he could almost certainly have secured the subpoenas in his capacity as first assistant or special attorney. So, perhaps the judge will disqualify him as US Attorney, and find that the subpoenas are still valid.

Whatever happens, the episode is further proof that Trump has corrupted the Justice Department. The court should reject these revenge subpoenas and put an end to this gross perversion of prosecutorial authority.

Oh, and PS: Guess which public office Sarcone ran for in 2022.