The Day Ahead: Two Grand Juries, Two Letitia James Cases

I'm on my way to Albany, New York for a hearing.

Good morning from the Amtrak café car. The coffee is hot, the Hudson River Valley is covered in snow, and it’s shaping up to be another whirlwind day in legal news.

There’s a reason why I woke up at an unladylike hour to schlep to Albany, New York: I’m on my way to a hearing over the appointment of John Sarcone, the acting United States Attorney for the Northern District of New York. The New York attorney general, Letitia James, is challenging the legality of Sarcone’s authority to oversee a grand jury investigation into lawsuits she filed against Donald J. Trump and the National Rifle Association (NRA), respectively.

The legal fight kicked off in August, when the Office of the New York State Attorney General was served with two grand jury subpoenas “authorized by self-proclaimed Acting U.S. Attorney John Sarcone III.” According to court filings, the subpoenas called for the production of “any and all” records related to a pair of cases brought by James’s office in recent years. The first subpoena targeted New York v. Trump, which is the civil fraud suit that resulted in a massive judgement against Trump and his businesses. The second targeted New York v. National Rifle Association, in which a jury found the NRA and two of its officers liable for self-dealing and financial wrongdoing.

The subpoenas were reportedly issued as a part of a criminal civil rights investigation into whether Tish James’s office violated the rights of Trump or others. Some Trump allies have long called for the use of a federal civil rights statute, 18 U.S.C. § 242, as a investigatory predicate to carry out Trump’s campaign for retribution against his perceived political enemies, including James.

The New York Attorney General is now seeking to quash the subpoenas by arguing, among other things, that Sarcone did not possess authority to issue them because he was unlawfully appointed. It’s the latest in a string of challenges to the appointment of Trump’s interim or acting U.S. Attorneys. Thus far, courts have ruled that U.S. Attorneys in New Jersey, Virginia, Nevada, and California were all serving unlawfully.

Today’s hearing comes little more than a week after a federal judge threw out the criminal charges brought against Tish James in Virginia. In that case, Judge Cameron McGowan Currie ruled that Trump’s hand-picked prosecutor, Lindsey Halligan, was appointed in violation of 28 U.S.C. § 546. The facts in the Sarcone case are slightly different. They involve an initial appointment under § 546, followed by a subsequent appointment under a different statutory scheme set out in the Federal Vacancies Reform Act. But the New York Attorney General’s Office notes that Judge Currie’s remedy was to “set aside” all actions taken under Halligan’s invalid appointment. James argues the same remedy applies here: the subpoenas should be quashed because Sarcone lacked authority.

We’ll see what the judge, Lorna G. Schofield, makes of all this. The hearing is set for 11:00 a.m. E.T. in Albany. I’ll be there, and you can follow me on Bluesky for updates once the hearing wraps up. We’ll also discuss the matter on Lawfare Live tomorrow at 4 p.m. ET.

Meanwhile, the Sarcone hearing may not be the only news involving grand jury activity and Letitia James today. Multiple reports suggest that federal prosecutors are preparing to revive the criminal charges that were tossed by Judge Currie last week. A federal grand jury in Norfolk, Virginia, is reportedly set to consider a new indictment of James on charges related to mortgage fraud. Will the Justice Department once again persuade at least 12 grand jurors that there is probable cause to indict James?

Stay tuned. I sure am.