Court-Appointed US Attorneys Fight: DOJ Tells the Ninth Circuit the President Must Be Able to Fire Rogoff

Court-Appointed US Attorneys Fight: DOJ Tells the Ninth Circuit the President Must Be Able to Fire Rogoff

UPDATE (Oct. 10, 2026): The merits briefing has landed. On Friday, the Justice Department filed a 67-page appellate brief asking the Ninth Circuit to reverse Chief Judge Stanley Bastian's Oct. 1 order reinstating Roger Rogoff — the veteran Seattle prosecutor whom the Western District of Washington's judges unanimously appointed on July 15 and whom Trump fired by email 54 minutes later. The Ninth Circuit's Oct. 4 administrative stay keeps Rogoff sidelined while the appeal proceeds.

The government frames the case as a pure separation-of-powers question: "The question in this case is whether the United States Attorney for the Western District of Washington... must be subject to supervision and removal by the President of the United States¹." Its core statutory argument: "The district court's injunction is indefensible and warrants immediate reversal... Congress provided that '[e]ach United States attorney is subject to removal by the President,' without limitation." And its constitutional fallback: "The President must have authority to remove U.S. Attorneys under Article II... [s]ubordinates who exercise the President's power are subject to removal by him." DOJ warns that Bastian's ruling gives the Senate "an effective veto" over removals — that even if Rogoff "were to engage in gross prosecutorial misconduct or flout the Attorney General's policy directives, the President's only recourse... would be to lobby the Senate to confirm a permanent replacement."

Bastian's contrary reading, which the brief attacks, was that the removal statute is "limited to the removal of U.S. Attorneys in office by the nomination/confirmation process" — so a court-appointed U.S. attorney serves until the vacancy is filled through nomination and confirmation, and the president cannot remove an officer he never appointed.

What's at stake: the merits ruling will decide whether 28 U.S.C. § 546(d) court appointments create officers the president cannot fire — the same structural question underlying the removal fights across the administration (Trump Opens a Second Front on Lisa Cook: A White House 'Committee of Inquiry' — Now Called "Demonstrably Biased" by Her Lawyers, the USIP takeover). The Ninth Circuit's decision, or any change in the compliance posture (Rogoff resuming office, or the government installing its own pick), is the next trigger.