Trump Fires U.S. Attorney After 54 Minutes, Replaces Him With Fake Prosecutor

Roger Rogoff was the United States Attorney for the Western District of Washington for 54 minutes.

Rogoff was sworn in a little before 8 a.m. Wednesday at the federal courthouse in downtown Seattle. He walked over to the U.S. Attorney’s office to meet the man he legally just replaced — interim selection Charles Neil Floyd, who was not only never confirmed by the Senate, but never even nominated for the job. Floyd’s tenure as an interim appointment is statutorily capped at 120 days, and with no legal replacement forthcoming from the Trump administration, the district’s judges exercised their legal right to pick a successor to keep the federal criminal justice system running.

While Rogoff was waiting, an email arrived from the Trump administration informing him that he had been removed.

Acting Attorney General Todd Blanche went on X — because all serious and professional business is conducted on a website dedicated to racial slurs and computer generated child porn — to explain the situation:

District court judges can appoint a temporary U.S. Attorney, and POTUS can fire them. WDWA judges abandoned the time-honored process of consultation with the administration so that the selected U.S. Attorney is qualified to serve in the administration. Roger Rogoff has been fired by the President.

You don’t need me to tell you that this is bullshit, but since I’m here: this is bullshit.

There’s no “time-honored” consultation process, because the courts only have the power to appoint a U.S. Attorney when the administration has totally abdicated its responsibility to fill the role. Indeed, if the administration could influence this decision, it defeats the purpose of the law. The statutory scheme presumes the president is dutifully sending nominations to the Senate, and if those fail — and exceed the interim appointment window — the courts step in until the president CAN find a confirmable nominee. The purpose of this regime is to make sure federal prosecutions can continue without upsetting the constitutional apple cart: The separation of powers dividing roles between the president and Senate is respected and, if that breaks down, neither branch hijacks the power to appoint someone while that battle rages.

And for any critic who wishes to scream into the wind that presidents deserve prosecutors who won’t undermine the administration, the court seated a bipartisan merit selection panel to screen candidates and all 17 active and senior judges of the district — appointed by five different presidents — signed Rogoff’s appointment order unanimously.

For the record, the administration’s contribution to this “time-honored process of consultation,” was a social media post in March warning the Western Washington judges that whoever they picked would “suffer the same fate as” the other court-appointed prosecutors who the administration fired. So even if you believed there was a “consultation” obligation, Blanche couldn’t help himself from pissing on the administration’s claim to good faith.

Trump wants to install prosecutors illegally and indefinitely without Senate approval.

The problem, like so many, stems from naive textualism. Section 541(c) says “Each United States attorney is subject to removal by the President.” That said, § 541 only speaks to U.S. Attorneys duly appointed and confirmed — it does not speak to the situation at hand, which is covered elsewhere in the code. A 1979 OLC opinion took up the question of first impression whether § 541(c) would permit a president to fire a court-appointed U.S. Attorney and concluded that it did. Which makes some sense in the ordinary course of events — if the president and Senate subsequently found a confirmable replacement, the president should be able to remove the court-appointment in favor of the properly appointed officer. But, again, the legislature who penned this text presupposed everyone acting in good faith.

It would shock them to learn that a future president would turn the DOJ over to his personal lawyer to invoke this language to permanently prevent the courts from installing a legal U.S. Attorney over a crony pretending to act as U.S. Attorney without legal authority.

So, the law allows Trump to “fire” a court-appointed U.S. Attorney. Firing them for the purpose of violating the rest of § 541 is a lot more problematic. In this case, the administration named Floyd to the new role of first assistant U.S. Attorney when his tenure ended in February, meaning he gets to take over automatically after Rogoff’s firing. And then, POOF! The 120-day limit on interim appointments is bypassed by taking the same person legally barred from holding the job and giving them the job — but, like, a different way!

Lest there be any fucking confusion that Congress did not intend to give presidents the power to indefinitely appoint unconfirmed flunkies to this job, they made it very clear in 2007. Because in 2006, a Patriot Act amendment allowed the Attorney General’s interim appointees serve indefinitely, which the Bush DOJ used to swap out nine U.S. Attorneys. A year later, Congress repealed the amendment.

But to be clear, George W. Bush and Dick Cheney didn’t even think they could do this without changing the law, and they thought they could kidnap people to offshore torture chambers without statutory approval.

Rogoff is talking to lawyers about suing. It’s not clear that Rogoff has a case that he can’t be fired, but that doesn’t mean Trump’s U.S. Attorney shell game has a legal leg to stand on.

This keeps getting litigated, and the administration keeps losing. The real problem is that a fake appointment renders all the cases coming out of that office potentially invalid. In December the Third Circuit held 3-0 that the first assistant maneuver violated the Vacancies Act and disqualified Alina Habba. Lindsey Halligan lost her phony prosecutor job, with a judge noting she possessed no more authority than any private citizen off the street, after defendants challenged their indictments. In Nevada, where Sigal Chattah ran the same play, the judge wrote that the Vacancies Act’s purpose “would be defeated if the Executive Branch — the very branch Congress was trying to constrain — could choose whomever it wanted, whenever it wanted, and fill the vacancy simply by declaring that person to be first assistant.” A court found Bill Essayli unlawfully serving in Los Angeles. In May, all three judges of a Second Circuit panel signaled they weren’t buying it either for fake Northern District of New York appointment John Sarcone III.

Under ordinary circumstances, Rogoff’s a layup for this job. Per the court’s order, Rogoff was a King County prosecutor, an Assistant U.S. Attorney in the very Seattle office he’d just been handed, a King County Superior Court judge, and the director of the state office built to independently investigate police killings. He taught trial advocacy at UW Law. He did a stint as assistant general counsel at Microsoft. But his résumé isn’t the issue, because the Trump administration sees competence as less important than — if not an impediment to — loyalty.

The cost is a functioning justice system. Because indictments signed by an illegal appointee aren’t valid — which is how these Temu prosecutor stories keep ending. They hold the job until some actually dangerous criminal realizes that they can walk because the Trump henchman signing the paperwork isn’t legally appointed and then they resign and the DOJ fires off another Musk-o-gram on X about how it’s all the fault of Democrat judges without ever mentioning that the Republican judges are ruling the exact same way.

Trump DOJ is literally trading “law and order” for cronyism.

Earlier: DOJ Flames Judiciary Over Impertinent Demand For Competent US Attorneys

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.