In Re Grand Jury Subpoenas to the Office of the New York State Attorney General

26-156 In re Grand Jury Subpoenas to the Office of the New York State Attorney General In the United States Court of Appeals For the Second Circuit August Term, 2025 No. 26-156 IN RE GRAND JURY SUBPOENAS TO THE OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL. OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant. On Appeal from a Judgment of the United States District Court for the Northern District of New York. ARGUED: MAY 4, 2026 DECIDED: AUGUST 21, 2026 Before: CALABRESI, PARK, and KAHN, Circuit Judges. This case concerns whether John A. Sarcone III validly served as, and lawfully exercised the duties of, the Acting U.S. Attorney for the Northern District of New York. We hold that he did not. The Appointments Clause of the Constitution requires that “Officers of the United States” be nominated by the President and confirmed by the Senate. When a Senate-confirmed U.S. Attorney leaves office, the Federal Vacancies Reform Act of 1998 (“FVRA”) specifies who may perform the office’s duties in an acting capacity, and for how long. The Government maintains that Sarcone lawfully served as the Acting U.S. Attorney because he was designated First Assistant to the U.S. Attorney after the Senate-confirmed U.S. Attorney left office and thereby automatically became the acting officer under the FVRA. Pursuant to that authority, Sarcone obtained two grand jury subpoenas directed at the New York Office of the Attorney General (“NYOAG”) in connection with its investigations into the National Rifle Association and Donald J. Trump for financial misconduct. The Government contends that, even if Sarcone was not the acting officer, the Attorney General’s delegation of all the office’s duties to him provided an independent source of authority. NYOAG moved to quash the subpoenas. The United States District Court for the Northern District of New York (Schofield, J., sitting by designation) granted that motion, holding that Sarcone lacked authority to obtain the subpoenas either as Acting U.S. Attorney or through authority delegated by the Attorney General. The court further disqualified Sarcone from future involvement in the underlying investigations. We hold that Sarcone was not serving as Acting U.S. Attorney when he obtained the subpoenas because the FVRA permits only a First Assistant already in place when the vacancy arises to become the acting officer automatically. We further hold that the general delegation to Sarcone of all the duties of the U.S. Attorney’s office was an unlawful use of general delegation authority to circumvent the FVRA’s exclusivity provision. Because Sarcone lacked authority to obtain the subpoenas on either theory, we AFFIRM the district court’s order quashing them. And because the government on appeal did not provide any argument as to why the district court erred in disqualifying Sarcone from future involvement in the underlying investigations, we treat the issue as forfeited and AFFIRM the order below. Judge Park dissents in a separate opinion. DONALD B. VERRILLI, JR., Munger, Tolles & Olson LLP, Washington, DC; with Hailyn J. Chen & Victoria A. Degtyareva, Munger, Tolles & Olson LLP, Los Angeles, CA; Barbara D. Underwood, Solicitor General (Kumiki 2  Gibson & Michael Jaffe, on the brief), Office of the New York State Attorney General, New York, NY, for Petitioner-Appellee. HENRY C. WHITAKER, Counselor to the Attorney General (Rajit S. Dosanjh, Assistant United States Attorney, on the brief), for Todd Blanche, Acting Attorney General, for Respondent-Appellant. CALABRESI, Circuit Judge: This case concerns whether John A. Sarcone III validly served as, and lawfully exercised the powers of, the Acting U.S. Attorney for the Northern District of New York. We hold that he did not. The Appointments Clause of the Constitution requires that “Officers of the United States” be nominated by the President and confirmed by the Senate. When a Senate-confirmed U.S. Attorney leaves office, the Federal Vacancies Reform Act of 1998 (“FVRA”) specifies who may perform the office’s duties in an acting capacity, and for how long. The Government maintains that Sarcone lawfully served as the Acting U.S. Attorney because he was designated First Assistant to the U.S. Attorney (“FAUSA”) after the Senate-confirmed U.S. Attorney left office and thereby automatically became the acting officer under the FVRA. Pursuant to that authority, Sarcone obtained two grand jury subpoenas directed at the New York Office of the Attorney General (“NYOAG”) in connection with its investigations into the National Rifle Association and Donald J. Trump for financial misconduct. The Government contends that, even if Sarcone was not the acting officer, the Attorney General’s delegation of all the office’s duties to him 3 provided an independent source of authority. NYOAG moved to quash the subpoenas. The United States District Court for the Northern District of New York (Schofield, J., sitting by designation) granted that motion, holding that Sarcone lacked authority to obtain the subpoenas either as Acting U.S. Attorney or through authority delegated by the Attorney General. The court further disqualified Sarcone from future involvement in the underlying investigations. We hold that Sarcone was not serving as Acting U.S. Attorney when he obtained the subpoenas because the FVRA permits only a First Assistant already in place when the vacancy arises to become the acting officer automatically. We further hold that the general delegation to Sarcone of all the duties of the U.S. Attorney’s office was an unlawful use of general delegation authority to circumvent the FVRA’s exclusivity provision. Because Sarcone lacked authority to obtain the subpoenas on either theory, we AFFIRM the district court’s order quashing them. And because the government on appeal did not provide any argument as to why the district court erred in disqualifying Sarcone from future involvement in the underlying investigations, we treat the issue as forfeited and AFFIRM the order below. I. Background A. Legal Framework The Constitution prescribes distinct and important roles for the Executive and Legislative branches of government in the appointment of “Officers of the 4 United States.” Generally, such officers must be nominated by the President and confirmed by the Senate under the Appointments Clause: [The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. U.S. Const. art. II, § 2, cl. 2. Known as “PAS” offices, approximately 1,000 Executive Branch positions require presidential nomination and Senate confirmation. Congress includes U.S. Attorneys among those offices subject to the PAS process. 28 U.S.C. § 541(a). The Appointments Clause is more than a mere formality. “[I]t is among the significant structural safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651, 659 (1997). At the Founding, “‘the power of appointment to offices’ was deemed ‘the most insidious and powerful weapon of eighteenth century despotism.’” Freytag v. Commissioner, 501 U.S. 868, 883 (1991) (quoting Gordon S. Wood, The Creation of the American Republic 1776-1787, at 79 (1969)). By subjecting the President’s nominees to Senate confirmation, the Framers envisioned a critical role for the legislature in ensuring that those who fill PAS roles possess the qualifications and character befitting of the office. As Alexander Hamilton wrote in the Federalist Papers, the Appointments Clause serves as an “excellent check upon a spirit of favoritism in the President.” The Federalist No. 76 (Alexander Hamilton). Otherwise, an Executive with a unilateral appointment 5 power “would be governed much more by his private inclinations” than he would if his nominees required Senate approval. Id. While the PAS process is the “default manner of appointment,” the Constitution affords Congress the flexibility to establish alternative means of appointment for inferior officers. United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021) (quoting Edmond, 520 U.S. at 660). Recognizing that the PAS process can take time and that vacancies occasionally arise, Congress set out certain fixed means by which PAS offices may be filled for a “limited time, and under special and temporary conditions,” until the Senate confirms a presidentially appointed nominee. United States v. Eaton, 169 U.S. 331, 343 (1898). With respect to U.S. Attorneys, two different statutes enable an official temporarily to perform the role. The first is the FVRA, 5 U.S.C. § 3345 et seq., which applies to all PAS offices across the Executive branch. When a PAS officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the FVRA identifies three categories of individuals who may fill the office on an acting basis. 5 U.S.C. § 3345(a). First, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.” 5 U.S.C. § 3345(a)(1). Under this provision, First Assistants “automatically assume acting duties” without any action required by the Executive. NLRB v. SW Gen., Inc., 580 U.S. 288, 305 (2017). In this regard, (a)(1) is the FVRA’s “default rule.” Id. at 293. Second, the President may temporarily fill the position with a Senate- confirmed official who is already serving in a different PAS office. 5 U.S.C. 6 § 3345(a)(2). And third, the President may temporarily assign someone within the agency to the acting role if that individual satisfies certain seniority and experience criteria. Id. § 3345(a)(3). Eligible individuals within all three of these categories are limited to serving for “no longer than 210 days beginning on the date the vacancy occurs,” or, subject to certain requirements, while a nomination is pending. Id. § 3346(a). The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of” a PAS office. Id. § 3347(a). In making the FVRA exclusive, Congress sought to prevent overreliance on acting officials, which it viewed as a “threat to the Senate’s advice and consent power.” SW Gen., 580 U.S. at 293-95. The statute’s exceptions are narrow. A separate “statutory provision” governs only if it “expressly . . . authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” Id. § 3347(a)(1)(A) (emphasis added). And a statute vesting an agency head with “general authority . . . to delegate duties” does not qualify. Id. § 3347(b). For U.S. Attorneys, an additional statute offers a mechanism for temporary appointments consistent with the FVRA’s exclusivity provision. 28 U.S.C. § 546 provides that when an “office of United States attorney is vacant,” the Attorney General may appoint an Interim U.S. Attorney for no more than 120 days, provided that the Senate had not previously refused to confirm that individual. 28 U.S.C. § 546(a)-(c). If the 120-day period lapses, “the district court for such district” is authorized to “appoint a United States attorney to serve until the 7 vacancy is filled.” Id. § 546(d). These two statutory provisions, the FVRA and § 546, are the only means by which U.S. Attorney’s offices may be filled on a temporary basis. Otherwise, the President must obtain for his nominee the advice and consent of the Senate. B. Sarcone’s Appointment On February 17, 2025, the Senate-confirmed U.S. Attorney for the Northern District of New York, Carla B. Freedman, left office. Under the FVRA, the then- FAUSA for the district, Daniel Hanlon, automatically became Acting U.S. Attorney. On February 28, the Attorney General appointed John A. Sarcone III as Interim U.S. Attorney under 28 U.S.C. § 546, effective March 17, replacing Hanlon as the temporary head of the office. Sarcone’s interim term expired 120 days later on July 14. That day, the Northern District’s Board of Judges declined to exercise its authority under 28 U.S.C. § 546(d) to appoint a U.S. Attorney for the district, leaving the office vacant. The Department of Justice then took a series of personnel actions within the district. First, it reassigned Daniel Hanlon from FAUSA to Deputy U.S. Attorney, creating a vacancy in the FAUSA role. Second, it appointed Sarcone to the now- vacant FAUSA position, stating that the “[r]eason” for the “[t]emporary [a]ppointment” was to “[s]erv[e] as Acting U.S. Attorney for a 210-day period.” App’x 2090-92. Third, it designated Sarcone a Special Attorney under 28 U.S.C. § 515, a position traditionally used for cross-district prosecutions or specific high- profile investigations rather than district-wide responsibilities. The designation letter purported to vest Sarcone with authority “to conduct in the Northern District 8 of New York, any kind of legal proceedings, civil or criminal, including Grand Jury proceedings, . . . which United States Attorneys are authorized to conduct” for an “indefinite” period. App’x 2087. Based on these appointments as FAUSA and Special Attorney, Sarcone represented to the Chief Judge of the Northern District that, “by operation of law under the [FVRA],” he was “now serving as Acting United States Attorney for the Northern District of New York indefinitely.” App’x 2086. C. The Grand Jury Subpoenas The subpoenas in this case sought information relating to two enforcement actions brought by NYOAG, which New York Attorney General Letitia James has led since 2018. First, in August 2020, NYOAG sued the National Rifle Association (“NRA”), a nonprofit incorporated in New York, along with its senior executives. See People v. National Rifle Ass’n, Index No. 451625/2020 (N.Y. Sup. Ct.). NYOAG alleged that the NRA mishandled its assets and misappropriated charitable funds for personal use. A jury returned a verdict against the NRA and its executives, and New York courts have upheld the verdict. See People v. National Rifle Ass’n, 171 N.Y.S.3d 782, 786-87 (N.Y. Sup. Ct. 2022); People v. National Rifle Ass’n, 203 N.Y.S.3d 255, 261-62 (N.Y. App. Div. 2023). Second, in September 2022, NYOAG sued Donald J. Trump and his associates for financial fraud, based on conduct in his personal capacity as a New York business owner. See People v. Trump, Index No. 452564/2022 (N.Y. Sup. Ct.). NYOAG alleged that they inflated the value of Trump’s assets by as much as $2.2 billion a year. The trial court found the defendants liable, and both state and 9 federal courts have upheld that determination. See, e.g., Trump v. James, 2022 WL 1718951 (N.D.N.Y. 2022); People v. Trump Org., Inc., 38 N.Y.3d 1053, 1054 (N.Y. 2022). On August 5, 2025, NYOAG was served with two grand jury subpoenas. App’x 68-74. They demanded production of “[a]ny and all documents relating to” or “reflecting communications about” NYOAG’s NRA and Trump cases. Id. at 70, 74. The subpoenas were obtained by Sarcone, who identified himself as the “Acting United States Attorney.” Id. at 68, 72. They referenced neither his “Special Attorney” nor his “First Assistant” title and named no prosecutor other than Sarcone. Yet by the time the subpoenas were served on NYOAG, Sarcone’s 120- day term as Interim U.S. Attorney under § 546 had already expired. D. Procedural History On August 19, 2025, NYOAG moved to quash the subpoenas. It argued that the subpoenas were issued in retaliation and with an intent to harass Letitia James and NYOAG; were unreasonable intrusions on New York’s sovereignty; infringed on NYOAG’s First Amendment rights; were overbroad and unduly burdensome; sought privileged information; and were invalid because Sarcone was not lawfully serving as Acting U.S. Attorney when he obtained them. The Government opposed the motion on every ground. As relevant here, it asserted that Sarcone was validly serving as Acting U.S. Attorney because he had been appointed FAUSA while the U.S. Attorney position was vacant and was thereby automatically elevated to the office under the FVRA. And regardless of his title under the FVRA, the Government maintained, the Attorney General’s 10 delegation to Sarcone of all the duties of U.S. Attorney as Special Attorney and FAUSA independently authorized him to obtain the subpoenas. The Northern District judges recused themselves from deciding the motion, having declined to appoint a U.S. Attorney when Sarcone’s 120-day term as Interim U.S. Attorney expired. The Chief Judge of this Court designated Judge Schofield of the Southern District of New York to decide the motion. On January 8, 2026, the district court quashed the subpoenas, finding that Sarcone “was not lawfully serving as Acting U.S. Attorney when the subpoenas were issued.” In re Grand Jury Subpoenas to Off. of N.Y. State Att’y Gen., 814 F. Supp. 3d 284, 288 (N.D.N.Y. 2026). The district court held that only a FAUSA serving when the vacancy arises is eligible to assume the role of Acting U.S. Attorney under the FVRA’s automatic-succession provision. See id. Because Sarcone was named FAUSA after the U.S. Attorney’s office was already vacant, the FVRA’s automatic- succession provision did not apply. Id. The district court also rejected the Government’s alternative argument that Sarcone could obtain the subpoenas through his delegated authority as Special Attorney and FAUSA under §§ 510 and 515. The delegation to Sarcone, the district court concluded, was an improper “attempt to use general delegation to create an Acting U.S. Attorney outside the FVRA’s statutory framework,” in violation of the FVRA’s exclusivity provision, 5 U.S.C. § 3347(a). Id. at 297-98. The district court accordingly invalidated the subpoenas under Federal Rule of Criminal Procedure 17. It also disqualified Sarcone from “any further involvement in prosecuting or supervising the criminal investigations that prompted the subpoenas.” Id. at 298. 11 The district court did not address any of NYOAG’s other claims in support of its motion to quash. The Government timely appealed. It concedes that Sarcone can no longer serve as Acting U.S. Attorney under the FVRA’s 210-day time limit because his purported tenure had long since expired. See Respondent-Appellant’s Br. 3 n.1. As of this decision, the President has not submitted a nominee to the Senate and, according to the Government, Sarcone continues to serve as the operative head of the U.S. Attorney’s office. See id. II. Standard of Review We review a district court’s decision to quash grand jury subpoenas for abuse of discretion. United States v. Skelos, 988 F.3d 645, 660 (2d Cir. 2021). Questions of statutory interpretation are reviewed de novo and factual determinations are reviewed for clear error. United States v. Freeman, 99 F.4th 125, 127 (2d Cir. 2024); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 68-69 (2d Cir. 2003). Decisions to disqualify an attorney, including a prosecutor, are reviewed for abuse of discretion. See United States v. Jones, 381 F.3d 114, 119 (2d Cir. 2004); United States v. Badalamenti, 794 F.2d 821, 828 (2d Cir. 1986). III. Discussion The Government asserts that the district court erred in quashing the subpoenas and disqualifying Sarcone. Specifically, it says that Sarcone was validly serving as Acting U.S. Attorney under the FVRA when he obtained the grand jury subpoenas, and, in any event, he had sufficient authority as FAUSA and Special Attorney. For the reasons discussed below, we disagree. 12  A. Mootness Before reaching the merits, we must first consider whether this appeal is moot. On March 9, 2026, the grand jury that issued the subpoenas was discharged. Respondent-Appellant’s Rule 28(j) Letter, In re Grand Jury Subpoenas to the Off. of the N.Y. State Att’y Gen. v. United States, No. 26-156 (2d. Cir.), ECF No. 87. In this Circuit, grand jury subpoenas become unenforceable upon the discharge of the issuing grand jury. In re Grand Jury Proceedings, 971 F.3d 40, 50 (2d Cir. 2020). NYOAG is thus no longer subject to the subpoenas, as both parties agree. But the subpoenas’ unenforceability “does not render [the] motion to quash moot.” Id. at 53. We retain “jurisdiction to review the issues raised” because, given the limited duration for which a grand jury sits, “this dispute is ‘capable of repetition, yet evading review.’” Id. (citing United States v. Juvenile Male, 564 U.S. 932, 938 (2011)). The appeal remains live for a second reason as well: the district court also disqualified Sarcone “from any further involvement in prosecuting or supervising the instant investigations, regardless of his title.” In re Grand Jury Subpoenas, 814 F. Supp. 3d at 300. That prospective disqualification was based on Sarcone’s alleged improper appointment and is a “live dispute” on which the Government can obtain “effectual relief” by prevailing on appeal. Council for Responsible Nutrition v. James, 159 F.4th 155, 162 (2d Cir. 2025). This case is therefore not moot. B. Sarcone’s Appointment as Acting U.S. Attorney Under the FVRA The Government’s front-line argument is that the grand jury subpoenas were valid because Sarcone lawfully obtained them in his capacity as the Acting U.S. Attorney. Both parties agree that the U.S. Attorney for the Northern District 13 is a PAS office subject to the FVRA, and that the office is vacant. The last Senate- confirmed U.S. Attorney departed on February 17, 2025, shortly after President Trump took office. Pursuant to 28 U.S.C. § 546, the Attorney General appointed Sarcone as Interim U.S. Attorney, effective March 17, 2025. Once Sarcone’s 120- day term as Interim U.S. Attorney expired, he was then designated as the new FAUSA and as a Special Attorney, effective July 15, 2025. Because the U.S. Attorney’s office was vacant at the time that Sarcone became FAUSA, the Government contends that he automatically became Acting U.S. Attorney by operation of the FVRA’s automatic-succession provision, 5 U.S.C. § 3345(a)(1). We disagree. The FVRA makes clear that the automatic-succession provision applies only to the person serving as First Assistant at the time the vacancy arises. Because Sarcone was not the FAUSA when the previous U.S. Attorney left office and created the vacancy, § 3345(a)(1) did not apply. 1. Statutory Language and Structure Through paragraphs (a)(1), (a)(2), and (a)(3) of § 3345, Congress delimited the three means by which a PAS vacancy may temporarily be filled under the FVRA. Paragraph (a)(1)’s designation of the First Assistant as the acting official is the FVRA’s default provision, operating automatically upon the vacancy of the PAS office. That automaticity is critical: it ensures continuity in the PAS office without requiring the President or agency head to take any action at all. But Congress also knew that (a)(1) would sometimes fail to supply a qualified successor, such as when no First Assistant is in place, or when the President might prefer to select someone other than the default designee. Accordingly, Congress 14 defined in paragraphs (a)(2) and (a)(3) a limited pool of officials from which the President could choose. These officials must either be Senate-confirmed officers serving in a different PAS office, 5 U.S.C. § 3345(a)(2), or possess sufficient agency expertise and experience for the role, id. § 3345(a)(3). In short, if the President wishes to deviate from the default, the new person must be sufficiently qualified. A statutory scheme providing for automatic succession to ensure continuity, paired with presidential flexibility within certain limits, makes good sense. See Biden v. Nebraska, 600 U.S. 477, 512 (2023) (Barrett, J., concurring) (“Context also includes common sense.”). This approach reflects a prudent way for Congress to safeguard its Appointments Clause power while affording some degree of Executive discretion during temporary vacancies. Reading (a)(1) to encompass First Assistants who are designated after the vacancy arises would turn the FVRA’s common-sense framework on its head. Under that reading, the President could install virtually anyone as the acting officer simply by naming that person First Assistant, regardless of whether they possessed any of the qualifications Congress required for the Executive to depart from the default. Sidestepping (a)(2) and (a)(3) in this way also would invert the statute’s internal logic. Congress made (a)(1) automatic precisely because it requires no fresh exercise of judgment: the First Assistant had already been vetted and installed before any vacancy arose, for reasons having nothing to do with filling the vacant office. Designating a First Assistant after the vacancy is not automatic succession at all; it is a deliberate and discretionary choice made without any of 15 the criteria Congress enacted to govern such deliberate choices under (a)(2) and (a)(3). The Government would thus convert the FVRA’s one non-discretionary path into its most discretionary one, untethered by any qualification requirements. The incentives such a scheme would create run exactly backward. An Executive who wanted an unqualified loyalist in an acting role would have no reason to use (a)(2) and (a)(3), which demand Senate confirmation or substantial agency tenure. He would instead route every acting appointment through (a)(1), which demands nothing. The Government’s reading thus rewards evasion and penalizes compliance—a strange design for a statute Congress enacted to stop the Executive from skirting the Vacancies Act, and one that would undermine the statute’s purpose as “a reclamation of the Congress’s Appointments Clause power.” SW Gen., Inc. v. NLRB, 796 F.3d 67, 70 (D.C. Cir. 2015), aff’d, 580 U.S. 288 (2017). The Government asserts that, even under its reading, (a)(2) and (a)(3) still serve a function in three narrow situations where (a)(1) is unavailable. First, where the First Assistant position is itself a PAS office, (a)(1) is unavailable because the First Assistant cannot be appointed without Senate confirmation. Second, (a)(1) is unavailable when the office of an agency head is vacant and the First Assistant must be appointed by the agency head. And third, (a)(2) and (a)(3) play a role where the President wishes to keep the current First Assistant in his place and appoint someone else for the acting role. 16  Even accepting all three hypotheticals as valid—and we are dubious that they are 1—they do little to advance the Government’s position. First, it would be anomalous for Congress to have conditioned the extent of the President’s discretion on the unrelated happenstance of whether the officer’s First Assistant role happened to be vacant. The most coherent reading of the statutory framework is that Congress focused on the PAS office itself in determining the President’s options. Second, the Government does not, and cannot, dispute that its reading would impose essentially no limits on Executive discretion and hence is the exact opposite of what § 3345, in both its design and its specific requirements, was written to accomplish. Beyond the clear structure of the statutory scheme, § 3345’s plain text also confirms the incumbency requirement in (a)(1). That provision provides that if a PAS officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” then “the first assistant to the office of such officer shall perform the functions and duties of the office in an acting capacity subject to the time limitations of section 3346.” 5 U.S.C. § 3345(a). The mechanism operates on a self-executing if-then basis: if the triggering event occurs, then the First Assistant 1 For example, the Government’s third scenario is not really a scenario at all. It posits that (a)(2) and (a)(3) play a distinct role when the President wishes to leave the incumbent First Assistant in that position while installing someone else as acting officer. But under the Government’s own reading of (a)(1), the President would not need (a)(2) or (a)(3) to accomplish just that. He could momentarily reassign the incumbent First Assistant, designate his preferred candidate to the now-vacant First Assistant slot, and that candidate would automatically become Acting U.S. Attorney under (a)(1). The President could then put the original First Assistant back in place. 17 “shall” automatically become the acting officer. The first two triggers—death and resignation—are instantaneous events: one is either dead or alive, and in a job or out of it. Accordingly, the relevant question under the statute is who occupies the First Assistant role at the instant that the triggering event occurs. A conditional event anchored to an instantaneous trigger cannot reach forward in time to encompass a First Assistant appointed after the triggering event has already passed. Ordinary usage demonstrates the instantaneous nature of the triggering language. Take a single, but dramatic, example: if the President dies, the Vice President “shall become President” automatically. U.S. Const. amend. XXV, § 1. This provision plainly refers to whoever is Vice President at the moment of death. Were the Vice Presidency itself vacant, succession would pass to the Speaker of the House; it would not go to whoever later is made Vice President. 3 U.S.C. § 19(a)(1). The Twenty-Fifth Amendment’s automatic-succession mechanism thus operates precisely as the FVRA does. The Government advances several textual arguments for a broader reading, but none persuade. First, the Government points to the statute’s reference to the “first assistant to the office of such officer” rather than the “first assistant to the officer,” arguing that this phrasing permits later-appointed First Assistants to qualify under § 3345(a)(1). That reading asks the phrase “to the office” to bear more weight than it can; we do not see why that difference of words makes the slightest difference semantically. The statutory text is consistent with a straightforward reading of the statute. The First Assistant becomes the acting 18 officer not because of any personal association with the departed officeholder, but because of his relationship to the newly vacated office. Second, the Government observes that other provisions of § 3345 contain “backward-looking language” while (a)(1) does not and asserts that this absence means (a)(1) does not impose an incumbency requirement. Respondent- Appellant’s Br. 22. Specifically, the Government notes that (a)(3) conditions the President’s authority to name acting officials on how long the candidate served in the agency before the vacancy, while (a)(1) lacks a similar requirement. This argument misapprehends how the statute operates. Paragraph (a)(1) has no backward-looking constraint because its focus is on a specific point in time: the moment the vacancy arises. A First Assistant’s eligibility for automatic succession under (a)(1) turns solely on whether they occupied that position when the vacancy arose, not on how long they had served before that moment, or any other retrospective criteria. Third, the Government asserts that the catchall phrase following “dies” and “resigns” — “is otherwise unable to perform the functions and duties of the office” — necessitates an ongoing state, rather than an instantaneous trigger. But to discern the phrase’s meaning, “[t]wo general principles are relevant.” Fischer v. United States, 603 U.S. 480, 487 (2024). First, a term is “given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). Second, and more specifically, “a general or collective term at the end of a list of specific items is typically controlled and defined by reference to those specific items that precede it.” Fischer, 603 U.S. at 481. 19  While the isolated phrase “is otherwise unable to perform” could hypothetically describe an ongoing state rather than a discrete instant, settled principles of statutory construction tell us to read a “general or collective term at the end of a list of specific items in light of any common attributes shared by the specific items.” Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246, 252 (2024) (internal quotation marks omitted). The shared attribute of the two terms, “dies” and “resigns,” is that they describe instantaneous events that create a vacancy. Read consistently with that shared attribute, the phrase “is otherwise unable to perform” constitutes a singular moment in time—the onset of the incapacity that triggered the vacancy. Even though the resulting incapacity, which follows the instantaneous event, may continue into the future, the statute’s triggering mechanism looks to the initial onset of the vacancy rather than to the ongoing state that follows. Any contrary reading of the catchall phrase “is otherwise unable to perform” would destroy the statute’s careful enumeration. If that phrase authorized continuous, open-ended substitution untethered to a fixed triggering instant, Congress would have had no reason separately to list “dies” and “resigns” as distinct triggers in the first place. Construing the catchall phrase to reach beyond the moment of onset would therefore “render[] meaningless the specific text that accompanies” it. Fischer, 603 U.S. at 487. Finally, the Government further contends that (a)(1) necessarily refers to an ongoing state of vacancy, rather than to its onset, because the same conditional clause—“dies, resigns, or is otherwise unable to perform the functions and duties 20 of the office”—also governs (a)(2) and (a)(3), the discretionary categories available to the President after a vacancy has occurred. This, too, misapprehends the statute. Across all three provisions, the triggering event—the “if”—is the same: the onset of the vacancy. What differs is the consequence—the “then.” Under (a)(1), the First Assistant in place at the onset of the vacancy “shall” become the acting officer. “Shall” signals an automatic result occurring instantaneously with the trigger. Under (a)(2) and (a)(3), by contrast, the onset of the vacancy simply triggers the President’s discretion to act, which the President “may” exercise thereafter at a time of his choosing. A single triggering event thus produces one automatic consequence and two discretionary consequences. There is nothing illogical or contradictory about that deliberate statutory scheme. 2. Statutory History As discussed below, the Government relies on legislative history to ask us to read a momentous change into the alteration of a few words in 1998. But the statutory history of the FVRA, as well as the legislative history that the government marshals, “reinforce[] [our] textual analysis” and foreclose that reading. Snyder v. United States, 603 U.S. 1, 12 (2024). We turn first to the statutory history. The statutory phrase designating the First Assistant who was in place automatically to become the acting officer traces its roots to the original Vacancies Act of 1868. See Act of July 23, 1868, ch. 227, 15 Stat. 168. Since then, materially similar language has appeared in every iteration of the law through minor rewordings. Prior to the FVRA, the Vacancies Act provided that if a PAS officer 21 “dies, resigns, or is sick or absent,” “his first assistant . . . shall perform the duties of the office until a successor is appointed.” 5 U.S.C. § 3345 (1997) (emphasis added). With the FVRA’s enactment in 1998, “his first assistant” was changed to “the first assistant to the office of such officer.” 5 U.S.C. 3345(a) (emphasis added). According to the Government, by uncoupling the First Assistant from the singular individual filling the PAS office, Congress intended to remove the incumbency requirement so that the First Assistant “to the office” may become the acting official at any point during the vacancy. Rather than freighting the modest change in a few words with the enormous significance the Government claims, Congress was doing something far more mundane: continuing its longstanding practice of modernizing and clarifying statutes through slight rephrasing. Indeed, there are at least two simple explanations for the change. First, the change removed the male-default pronoun to reflect a plain reality: by 1998, women routinely held senior-level, Senate-confirmed offices throughout the Executive branch. During the first year of the presidential administration under which the FVRA was passed, for example, women filled roughly a third of these positions. See Who Are the Women of the U.S.: Equality, President’s Interagency Council on Women, https://perma.cc/8U5K-NB8M. Read against that backdrop, Congress’s replacement of the male-centric language with a gender-neutral formulation was unremarkable. Second, the change reflected a standardization throughout the statutory provision to focus on the office rather than the individual officeholder. In the modern 22 statute, § 3345 speaks in office-centric terms throughout. The triggering provision applies to an officer