Most people are fired after at least a few days on the job. Roger Rogoff didn’t even have time to pick one. He got an email from the White House an hour after being sworn in as U.S. Attorney for the Western District of Washington telling him that President Trump had ended his appointment. No hearing. No time for transition. There was only a short message and the door shut before it opened.
That moment—not remarkable in how it happened but important in what it meant—is now at the center of a federal lawsuit that isn’t just about one man’s job dispute.
Rogoff is not a political appointee who got the job by accident. He has worked for the government for more than 30 years and used to be a federal prosecutor. He was chosen unanimously by the federal judges of the Western District of Washington to be U.S. attorney. The position had been open for over three years without a leader confirmed by the Senate. The meeting went smoothly, legally, and exactly as planned. Rogoff’s lawsuit says that the firing wasn’t any of those things.
The main legal question in his complaint is not as broad as it might seem at first, but the answer to it has big effects on many people. The attorney general can name a temporary U.S. attorney for up to 120 days under a federal law. Once that window closes, the district court can choose someone to fill the position until it is properly filled. Lawyers for Rogoff say that if the president can fire any judge-appointed U.S. attorney right away, literally as soon as they’re sworn in, then Congress’s power is useless. What’s the point of giving the courts the power to appoint judges if the president can just fire anyone they want? “If not stopped by this Court,” his lawyers wrote, “Mr. Rogoff’s alleged firing would nullify the district court’s appointment power, which Congress gave pursuant to its authority under the Appointments Clause.”
The reason given is good and doesn’t come from nowhere. Courts have said over and over that the Trump administration’s actions to keep unconfirmed prosecutors on the job for longer than the legally allowed 120 days are wrong. When faced with these decisions, Trump has always taken a practical approach: give those people new job titles while they continue to act as de facto leaders, and fire any court-appointed replacements who show up. Rogoff is the first person of this kind to actually fight back in court.
As I watch this happen, I get the feeling that the government never expected that much opposition. If they got an email from the White House and their job was cut, most people would just walk away. But Rogoff didn’t. In an interview with Politico, he said, “I was ready to serve either way.” This is an interesting statement to make. He agreed to an appointment even tho he knew he would probably be fired.
The constitutional issue in this case has not been resolved. In 1979, when Jimmy Carter was president, the Justice Department said that the president can fire a U.S. attorney appointed by the court. A different part of federal law seems to agree with that point of view; it says that the president can remove any U.S. attorney. But—and this is where legal experts start to pay more attention—that language is found in a section that only talks about attorneys appointed by the president and confirmed by the Senate. It’s not clear if Congress meant for it to apply equally to people appointed by courts.
Anne Joseph O’Connell, a law professor at Stanford, put it simply: unless Congress says otherwise, the general rule in law is that the power to remove follows the power to appoint. If that default assumption were used here, it would mean that a judge-appointed U.S. attorney could only be fired by the court and not by the White House.
Not every person agrees. Paul Clement, a former solicitor general who argued some of the most important conservative legal cases in recent memory, publicly asked if it was constitutional for courts to choose U.S. attorneys at all. He said the rule was “weird” and told judges at a 9th Circuit meeting that they were “dealing with fire” when they made these kinds of appointments. His main concern is that federal prosecutors work for the executive branch and that putting them outside of the president’s control would change the balance of power. It’s possible that both sides are right. That’s why this case is interesting to follow.
It’s likely that the Roger Rogoff Trump lawsuit won’t answer all of its questions. But it might make a court—and maybe even the Supreme Court—draw a clearer line around something that has been kept vague on purpose. That clarity could cost the government a lot of money since they have worked hard to put loyalists in charge of the country’s top prosecutor offices.
