Appeals Court Weighs Whether Trump Could Fire Court-Appointed Seattle U.S. Attorney

A three-judge panel of the 9th U.S. Circuit Court of Appeals heard arguments Friday over whether President Donald Trump had the power to fire Roger Rogoff, the federal prosecutor whom district judges in Washington state picked to lead the U.S. attorney’s office in Seattle. The panel did not say when it would rule.

How the dispute started

The Western District of Washington has not had a Senate-confirmed U.S. attorney since the last one resigned in 2023, according to Courthouse News Service. In January, the district’s judges said they planned to name someone to the post unless the administration filled it by February. On July 15, the court appointed Rogoff, a longtime Seattle prosecutor, and he took the oath that day. Less than an hour later, a White House personnel official emailed him that Trump had ordered his removal.

Rogoff sued Trump, the Justice Department and others. Earlier this month, U.S. District Judge Stanley Bastian, an Obama appointee, ruled that the president cannot unilaterally remove a U.S. attorney appointed by a district court and ordered Rogoff reinstated. Bastian wrote that it was “in the public interest that the law be followed and Mr. Rogoff take the office to which he has already taken the oath of office.” Four days later, the 9th Circuit put that order on hold while it considers the government’s appeal.

The government’s case

Justice Department attorney Mark Freeman told the panel the district court’s conclusion conflicts with Supreme Court decisions on the president’s control of the executive branch. He cited a provision of Title 28 of the U.S. Code, Section 541, whose text gives the president the power to remove U.S. attorneys.

“We have a very straightforward argument: ‘each U.S. attorney is removable by the president’ means ‘each U.S. attorney is removable by the president,’” Freeman said, according to Law&Crime. He said the government does not dispute that Rogoff was validly appointed, but added, “If Congress actually wrote the statute that my friend thinks it wrote, that you can appoint an attorney and then no one may remove him, we think that would be unconstitutional.”

Asked whether courts and the president might share removal power, Freeman said letting a court remove a U.S. attorney would create “fairly severe problems.” He also told the judges that no court before this one had ever held that a president cannot fire a court-appointed U.S. attorney.

Rogoff’s case

Rogoff’s lawyer, Donald Verrilli of the law firm Munger, Tolles & Olson, argued that the governing law is Section 546, the provision that lets district courts fill long vacancies. Under that section, he said, a court-appointed prosecutor serves until a Senate-confirmed successor takes office. Verrilli said the removal language in Section 541 applies to attorneys appointed by the president to four-year terms.

Verrilli described the court appointment process as a stopgap meant to push a president toward sending a nominee to the Senate. “This is all voluntary,” he said. “The president opts to use 546. The president can use the Vacancy Reform Act. The president can get a nomination up to the Senate and get a confirmation.”

Judge Jay Bybee, a George W. Bush appointee, asked whether Rogoff could be shielded from removal even though he holds the same title and authority as a confirmed U.S. attorney. Verrilli said yes, arguing that otherwise “the statutory structure is basically unraveled.” He also said a court-appointed prosecutor remains under the full control of the attorney general.

Verrilli told the panel that only one U.S. attorney in the 9th Circuit has been confirmed during Trump’s current term, with three nominees pending.

What comes next

While the case has been in court, Trump nominated Simon Peter Serrano for the Seattle post on Sept. 14 and later directed Charles Floyd, the office’s first assistant, to carry out the duties of U.S. attorney, Courthouse News reported. The panel also includes Judge Richard Paez, a Clinton appointee, and Judge Jennifer Sung, a Biden appointee.