New York’s senators condemned the Trump administration for firing an upstate U.S. attorney just hours after he was appointed by a panel of federal judges.
The rapid dismissal of Donald Kinsella, a 79-year-old lawyer and former prosecutor, is the White House’s latest maneuver to keep control over the U.S. attorney’s office in the Northern District of New York.
The firing seemingly leaves John Sarcone, a former campaign lawyer for President Donald Trump who hasn’t been confirmed by the U.S. Senate, as the top federal prosecutor in the area.
Because Sarcone was installed outside the normal procedures, a judge blocked him from investigating New York Attorney General Letitia James’ office over its past fraud case against Trump and his businesses.
“Everyone knows Trump only cares about one quality in a U.S. attorney: complete political subservience,” U.S. Sen. Chuck Schumer, a Democrat, said in a statement. “The people of upstate New York deserve a qualified, independent prosecutor, not another political loyalist.”
U.S. Sen. Kirsten Gillibrand said the Trump administration was sowing chaos.
“Instead of focusing on public safety and appointing qualified leaders to uphold the rule of law, the Trump administration continues to advance unqualified political loyalists while firing those who are qualified and competent,” Gillibrand said. “Upstate New Yorkers are not political pawns, and they deserve a justice system defined by integrity, not this juvenile nonsense.”
Sarcone didn’t return a message seeking comment.
A White House spokesperson referred to a tweet from Deputy U.S. Attorney General Todd Blanche, which announced that Kinsella was fired.
“Judges don’t pick U.S. Attorneys, @POTUS does,” Blanche said, referencing Article 2 of the U.S. Constitution.
A spokesperson for the U.S. attorney’s office — which covers Albany, Syracuse and 32 upstate counties — declined to comment on who was its current leader. Sarcone this week started using the title “first assistant United States attorney,” a position that normally takes charge when there isn’t a U.S. attorney.
Attorneys in the Northern District last year began adding Blanche’s name to their cases. Richard Swanson, president of the New York County Lawyers Association, a bar group, said defense lawyers could try to dismiss cases against their clients.
“When any of those bad guys gets indicted, until a confirmed United States attorney is appointed, they’ll claim ineligibility to issue the indictment,” Swanson said. “This throws a monkey wrench into the workings of the justice system.”
The judges of the Northern District were attempting to fill that void. They said they installed Kinsella pursuant to a section of the federal judiciary law, which gives them the power to fill vacancies. In an announcement, the judges said Kinsella had “more than 50 years of experience in complex criminal and civil litigation” and previously worked as chief of the criminal division of the U.S. attorney’s office.
Brenda Sannes, the district’s chief judge, didn’t return a call seeking comment on Kinsella’s dismissal.
Kinsella, who is now of counsel to the Albany law firm Whiteman, Osterman & Hanna, told the New York Public News Network that he was approached by the judges and was sworn in Wednesday.
“Then I got an email a few hours later from someone at the White House saying that the president directed that I be removed. That’s it — beginning to end,” Kinsella said. “I was honored to be asked by the judges to do this and was willing to do it, and I’m disappointed that it’s not going to happen.”
Sarcone’s status as leader of the office has been in question since a judge ruled last month that, “Mr. Sarcone’s service was and is unlawful because it bypassed the statutory requirements that govern who may exercise the powers of a U.S. attorney.”
Lawyers for Sarcone are appealing the ruling.
He was initially named an interim U.S. attorney last spring. He had no previous prosecutorial experience, and made headlines for threatening to compel telecom companies to trawl users’ messages for child pornography.
Sarcone later said a knife-wielding man tried to kill him outside an Albany hotel, but local prosecutors downgraded the charges after video showed the suspect never came within 10 feet of Sarcone.
When Sarcone’s interim term expired in July, the Department of Justice named him a special attorney and acting U.S. attorney. That acting appointment expired this week.
Barbara McQuade, a professor at the University of Michigan Law School and a former U.S. attorney, said that while the president can fire Senate-confirmed U.S. attorneys, it’s not clear whether that power extends to prosecutors installed by judges.
“President Trump is pushing the legal limits of his authority,” McQuade said. “He's not going to stop until somebody makes him, and it's going to require perhaps litigation and a court order and maybe a Supreme Court decision before he actually respects the boundaries.”
