Ninth Circuit: Stays Rogoff Reinstatement, Trump US Attorney Removal Power

• Roger Rogoff, a court-appointed U.S. Attorney for the Western District of Washington, was fired by the Trump administration less than an hour after being sworn in.
• A lower court reinstated Rogoff, ruling that the president cannot unilaterally remove a court-appointed U.S. attorney.
• The Ninth Circuit Court of Appeals temporarily paused Rogoff's reinstatement to review the Trump administration's appeal.
• The case hinges on the interpretation of 28 U.S.C. 541(c) and 28 U.S.C. 546 regarding presidential removal power versus the tenure of court-appointed officials.
• The Ninth Circuit's decision will clarify the scope of executive removal authority and its impact on judicial independence and the separation of powers.

A ruling in favor of unlimited presidential removal power could undermine this check, potentially allowing presidents to bypass the Senate's role in appointments by removing court-appointed officials at will.

The Ninth Circuit Court of Appeals has temporarily stayed a lower court's order reinstating Roger Rogoff as the U.S. Attorney for the Western District of Washington, pending a full appeal. This legal battle centers on Roger Rogoff, who was appointed as the U.S. Attorney for the Western District of Washington. His appointment followed the resignation of the previous Senate-confirmed U.S. Attorney in 2023, and after the U.S. District Court for the Western District of Washington announced in January its intention to appoint an interim attorney if the Trump administration did not fill the vacancy by February.

On July 15, the district court proceeded with the appointment, swearing Rogoff into office on the same day. However, less than an hour after his swearing-in, Rogoff received an email from the Deputy Director of Personnel, informing him that President Trump had ordered his removal from the position. In response, Rogoff initiated legal action against President Trump, the Executive Office, the Department of Justice, and then-Acting Attorney General Todd Blanche. A lower court, presided over by U.S. District Judge Stanley Bastian of the Eastern District of Washington, an appointee of former President Barack Obama, subsequently reinstated Rogoff. Judge Bastian concluded that the president lacked the unilateral power to dismiss a U.S. attorney appointed by the district court, emphasizing that it was "in the public interest that the law be followed and Mr. Rogoff take the office to which he has already taken the oath of office." Just four days after this order, the Ninth Circuit temporarily halted Rogoff's reinstatement to allow for an appeal to be heard.

The central legal question before the Ninth Circuit panel revolves around the scope of presidential removal authority over federal officers, specifically those appointed by the judiciary rather than through the traditional presidential nomination and Senate confirmation process. The Trump administration, represented by Justice Department attorney Mark Freeman, contended that the president's power to remove a U.S. attorney is broad and unrestricted, arguing that such authority is a constitutional matter consistent with Supreme Court jurisprudence on executive power. Freeman asserted that while Rogoff's appointment was valid, no statute prevents the president from removing him, and any law attempting to create an unremovable attorney would be unconstitutional.

The dispute hinges on the interpretation of two key sections of the U.S. Code: 28 U.S.C. 541(c) and 28 U.S.C. 546. Section 541(c) states that U.S. attorneys are "subject to removal by the president." The Trump administration interprets this as a blanket authority without limitations. Conversely, Rogoff's attorney, Donald Verrilli of Munger, Tolles & Olson, argued that Section 541(c) applies specifically to U.S. attorneys appointed by the president, not those appointed by a court. Verrilli maintained that Section 546, which governs court appointments, is the controlling text for Rogoff's situation, stipulating that such an attorney serves until a Senate-confirmed replacement assumes office. During the hearing, U.S. Circuit Judge Jay Bybee, a senior U.S. circuit judge and George W. Bush appointee, questioned whether Rogoff, despite possessing identical authority, power, and title to a 541 appointee, could indeed be immune from removal under 541(c). Verrilli affirmed this, stating that presidential removal would dismantle the statutory framework designed by Congress.

The Ninth Circuit's decision on the Trump Rogoff US attorney removal power case carries substantial implications for the balance of power among the branches of government. This ruling will clarify the extent of presidential removal authority over court-appointed federal officers, a critical aspect of executive power. It will also provide a definitive interpretation of 28 U.S.C. 541(c) and 28 U.S.C. 546, shaping how future vacancies for U.S. attorneys are handled and the security of tenure for interim appointees.

The outcome will significantly impact judicial independence, particularly regarding the judiciary's ability to fill critical law enforcement roles when the executive branch fails to act. Rogoff's legal team emphasized that the statutory scheme, particularly Section 546, is intended to protect the Senate's constitutional "advise and consent" power, which is vital for the separation of powers. A ruling in favor of unlimited presidential removal power could undermine this check, potentially allowing presidents to bypass the Senate's role in appointments by removing court-appointed officials at will. Conversely, upholding the lower court's decision would reinforce the judiciary's role as a stopgap measure and limit executive overreach in the appointment process, setting a crucial precedent for government appointments and potential challenges to executive actions.

Lawyers and compliance officers should closely monitor the Ninth Circuit's ruling on this case, as it will clarify the scope of presidential removal authority over court-appointed federal officers and the interpretation of relevant U.S. Code sections (28 U.S.C. 541(c) and 546). This decision could establish a significant precedent regarding executive power, judicial independence, and the appointment process for federal attorneys, impacting future government appointments and potential challenges to executive actions.

Source: Original reporting via Courthouse News Service.