In a case study in how the Trump administration has flouted the laws regarding the appointment of high-ranking federal officials, President Donald Trump fired Roger Rogoff on Wednesday, July 15, less than an hour after he was sworn in as lead U.S. attorney in the Western District of Washington. Rogoff, who was appointed to that role by federal judges, alleged in a lawsuit on Tuesday that Trump violated the appointments clause of the U.S. Constitution and a federal law that gives federal district judges the power to appoint a U.S. attorney if there’s a vacancy after an attorney general’s 120-day interim appointment expires. Rogoff’s best claim boils down to an argument that Trump is seeking power he doesn’t have and is thus violating the separation of powers.
Rogoff alleged in a lawsuit on Tuesday that Trump violated the appointments clause of the U.S. Constitution.
The idea behind the law allowing judges to appoint U.S. attorneys is straightforward. If the president can’t or won’t nominate someone the Senate confirms, then federal judges can temporarily fill that position.
The law envisions that our two elected branches share power in the appointment of U.S. attorneys. The typical process requires presidential nomination and Senate confirmation. The idea behind the law Rogoff cites is straightforward. If a president can’t or won’t nominate someone the Senate confirms, federal judges can temporarily fill that position.
Presidents can’t evade that power-sharing structure by attempting to keep their preferred officials in control through designations such as “first assistant,” “special attorney,” “acting U.S. attorney” or delegated office head after the initial 120-day term expires.
The Trump administration’s defense in Rogoff’s case is twofold. First, as acting Attorney General Todd Blanche put it succinctly on X, “District court judges can appoint a temporary U.S. Attorney, and POTUS can fire them.” This argument has some initial appeal, but it avoids focusing on the power to appoint and focuses instead on the power to fire. Second, the administration argues the district court should have consulted with the president before appointing Rogoff. That argument appears to be based on historical practice and courtesy, not binding legal precedent.
Rogoff is the first to sue, but he’s not the first to be entangled in the Trump administration’s effort to leave temporarily appointed U.S. attorneys in their positions sine die.
Exhibit A: Trump appointed Lindsey Halligan (whose office infamously tried to prosecute former FBI Director James Comey and New York Attorney General Letitia James) to serve as interim U.S. attorney in the Eastern District of Virginia. A federal court concluded that Halligan’s appointment was unlawful, as the Trump administration had previously appointed someone to serve a temporary 120-day period. Halligan ultimately stepped down, and a group of federal judges, as is their right under federal law, appointed James Hundley as interim U.S. attorney for that district. Then — you guessed it — the Justice Department fired Hundley the day he was sworn in.
Exhibit B: When she was attorney general, Pam Bondi appointed John Sarcone III as interim U.S. attorney for the Northern District of New York. After his 120-day term expired, the administration designated him a special attorney and first assistant and asserted that he could continue as acting U.S. attorney under federal law. A federal judge disagreed. The district court later appointed Donald Kinsella, a former assistant U.S. attorney and criminal-division chief. The administration fired Kinsella immediately.
You might ask why Trump doesn’t avoid this whole mess by nominating attorneys who can be confirmed by the Senate.
Exhibit C: Trump appointed Alina Habba interim U.S. attorney for the District of New Jersey. By now you know the story: As Habba’s 120-day term as interim U.S. attorney for New Jersey approached its end, the district court appointed experienced federal prosecutor Desiree Leigh Grace to take over. The administration fired Grace within hours. The Trump administration then attempted to keep Habba on by designating her a special attorney and first assistant, and the administration claimed she could continue as acting U.S. attorney. A federal district court, and later the 3rd Circuit Court of Appeals, disagreed.
The firing of Rogoff, Hundley, Kinsella and Grace are but four examples of a larger pattern. If a president can simply remove the court-appointed official after the federal judges appoint them, then Congress’ carefully crafted power-sharing law becomes meaningless.
You may ask why Trump doesn’t avoid this whole mess by nominating attorneys who can be confirmed by the (Republican-controlled) Senate. The question gives away the answer. The administration seems to have decided the Senate won’t confirm its picks.
Halligan and Habba were formally nominated, but their nominations encountered serious obstacles, including opposition from their Democratic home state senators and the Senate Judiciary Committee’s blue slip practice, which allows a senator from a nominee’s state to effectively veto that nomination. Halligan was an insurance lawyer with no prosecutorial experience. Sarcone, who was found to have committed professional misconduct, also lacked federal prosecutorial experience. Habba, who has faced court sanctions for filing frivolous suits, didn’t have prosecutorial experience, either.
In the end, we are left with a statutory system designed to maintain the Senate’s role in selecting permanent U.S. attorneys and to prevent the executive from indefinitely keeping its temporary selections in place. Trump appears determined to use the executive’s removal authority and a series of personnel maneuvers to undermine that system.
Rogoff’s case could determine whether the president’s general power to remove U.S. attorneys can be used to completely nullify the appointment authority Congress vested in the federal courts and to evade the Senate’s advice-and-consent role. No presidential administration should be allowed to evade federal law and constitutional protections by “temporarily” appointing U.S. attorneys for indefinite periods of time without input from the Senate.
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