Judge again rules Trump prosecutor unlawfully serving, rejects tax return bid

ALBANY, N.Y. — A judge’s ruling that a Trump administration prosecutor in upstate New York was serving unlawfully has spilled into another case — with the same judge saying he can’t obtain tax return information in a criminal investigation because he lacks authority.

The ruling Thursday against prosecutor John Sarcone from U.S. District Judge Lorna G. Schofield came the same day the judge disqualified Sarcone from overseeing investigations into Democratic New York Attorney General Letitia James. In that case, Schofield ruled that Sarcone was not lawfully serving as acting U.S. attorney for the Northern District of New York and that any “of his past or future acts taken in that capacity are void or voidable.”

Sarcone is among the prosecutors around the country found by federal judges to lack authority after the Republican administration used unusual maneuvers to place them or keep them in their posts without U.S. Senate confirmation.

Carl Tobias, a professor of law at the University of Richmond, said Schofield's ruling was consistent with previous decisions.

“It does seem like more and more courts are coming around to this view,” he said.

In a separate ruling Thursday, Schofield denied Sarcone's application for a court order directing the IRS to disclose tax return information for a limited liability company as part of a criminal investigation. The application remains sealed and it's not clear who filed the tax returns sought in the Oct. 2 request.

Applications for that tax information can only be made by officials holding specific positions, such as U.S. attorneys. The Manhattan judge said Sarcone lacked authority to authorize the application because he was not lawfully serving as acting U.S. attorney — mirroring her reasoning in the case involving James.

An email seeking comment was sent to the northern district.

Courts in New Jersey, Nevada and California have held that similarly installed acting U.S. attorneys lacked lawful authority. Trump’s former personal attorney, Alina Habba, resigned as the top federal prosecutor for New Jersey in December after an appeals court said she had been serving unlawfully.