Firing of top prosecutor in Seattle tests limits of Trump’s power

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The Trump administration’s latest firing of a U.S. attorney is intensifying the Justice Department’s assertion of presidential control over prosecutorial picks.

Roger Rogoff was sacked Wednesday as the top federal prosecutor in Seattle after a panel of 17 judges appointed him. The firing made good on the warning from acting Attorney General Todd Blanche that the president retains firing power for U.S. attorneys, even those appointed by the court.

Rogoff has reportedly retained legal counsel that specializes in employment law, setting up the possibility of a formal legal challenge that could set the stage for the courts to settle the bounds of presidential power over U.S. attorneys.

Rogoff was reportedly fired less than an hour after his appointment on Wednesday.

Blanche wrote on social media that the judges in Seattle had “abandoned the time-honored process of consultation with the administration.”

“District court judges can appoint a temporary U.S. Attorney, and POTUS can fire them,” Blanche wrote.

When a vacancy arises for a U.S. attorney, the head of the Justice Department may appoint an interim replacement for up to 120 days.

Neil Floyd, a former immigration judge, was sworn in as interim lead of the district in October. But because Trump never formally nominated him, he was not confirmed by the Senate.

When his 120 days were up in February, the administration shifted Floyd’s title to first assistant U.S. attorney, a maneuver that allowed him to remain as acting head while the top role was empty.

But once the clock runs out, federal law says the district court judges may appoint someone “to serve until the vacancy is filled.” That is what happened in Rogoff’s case.

The administration insists that Trump can fire those prosecutors, too.

“Consistent with other firings of this type, this is wholly within the President’s authority,” Justice Department spokesperson Kiersten Pels told The Hill when reached for comment.

The question of who has the power to fire a court-appointed U.S. attorney is not settled law, according to Paul Butler, a Georgetown Law professor and former federal prosecutor who worked during the George H. W. Bush and Clinton administrations.

It was first considered in a 1979 memorandum opinion by the Justice Department’s Office of Legal Counsel, which contended that a 1966 federal statute granting the president authority to remove “each” U.S. attorney extended beyond direct appointees.

Former Assistant Attorney General John Harmon also wrote at the time that because the president is “responsible for the conduct” of the U.S. Attorney’s offices, he must be able to remove one “he believes is an unsuitable incumbent, regardless of who appointed him.”

The Office of Legal Counsel’s interpretations of the law are not legally binding on courts but are generally treated as such by the executive branch and its agencies.

“It’s something that the administration could cite in a brief as support for its position, but it’s not going to be persuasive authority to any court,” Butler said, calling it a “very technical, legalistic reading” of the law.

The tactic used in Floyd’s case was similarly used by the administration to keep Trump’s former personal defense attorney, Alina Habba, as the top federal prosecutor in New Jersey after her term expired.

“When the administration names an interim and then names that person as the first assistant, it is clearly again trying to evade Senate confirmation, so it certainly violates the spirit of the law,” Butler said.

The 3rd U.S. Circuit Court of Appeals agreed in December that Habba unlawfully remained in the role past her term’s expiration date. Then-Attorney General Pam Bondi attempted to replace her with a trio of prosecutors, who were also disqualified.

The standoff escalated until March, when it ended with Robert Frazer being installed and celebrated by all sides.

Similar battles have also played out across the country for federal prosecutors in places like Nevada and New York.

“It’s part of a larger sea change in the Justice Department and the people who work for it,” Butler said. “The people who Trump is appointing to high-level positions are explicitly partisan and much more open to involving the administration and the president specifically in its day-to-day operations than again any other kind of recent administration has allowed.”

In Virginia, the disqualification of Lindsey Halligan sparked the dismissal of criminal charges against two prominent Trump foes: New York Attorney General Letitia James (D) and former FBI Director James Comey. The Justice Department has since brought new charges against Comey in North Carolina.

The battle has now turned to the Western District of Washington, which covers the Seattle area and has become a common place for groups to file legal challenges to Trump administration policies.

Rogoff, a former state judge first appointed by then-Governor Jay Inslee (D) in 2013, previously served in the Seattle-based U.S. attorney’s office. He also worked a stint in Microsoft’s legal office and earned his law degree from the University of Washington, according to his LinkedIn.

Sen. Patty Murray (D-Wash.) described Rogoff as “eminently qualified” in a statement reacting to his firing on Wednesday.

“He should have never been fired, but the President wants to appoint an out-of-touch extremist who will put Trump over the rule of law,” Murray said. “This administration doesn’t want to deal with advice and consent—they just want to install cronies to carry out a corrupt political agenda.”

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