Donald Trump fired the federal prosecutor Seattle’s judges appointed less than an hour after they appointed him.
Roger Rogoff, a former judge and veteran state and federal prosecutor, was sworn in as U.S. Attorney for the Western District of Washington before 8 a.m. Wednesday. He walked to the U.S. Attorney’s office. He sat in a lobby waiting to meet with the outgoing interim prosecutor, Charles Neil Floyd. While he waited, an email arrived from the Trump administration. He had been removed.
The statute that made Rogoff’s appointment possible exists because the framers of federal prosecutorial law understood that someone must be in every district with authority to bring cases, investigate crimes, enforce federal law. Under 28 U.S.C. § 546, when a U.S. Attorney vacancy opens and the President has not nominated a successor confirmed by the Senate, the district’s federal judges may appoint. The statute creates a judicial backstop — the one structural guarantee that federal prosecution continues even when the executive branch declines to fill the position.
Trump nullified that backstop in less than an hour.
The steel-man for the administration’s position is real. Article II of the Constitution vests the executive power in the President, and the Supreme Court has long held that the President’s power to remove principal and most inferior officers is near-plenary — Congress can limit removal of purely ministerial inferior officers, but U.S. Attorneys exercise prosecutorial discretion that places them outside that narrow exception. Every prior administration has removed U.S. Attorneys for policy reasons, including court-appointed ones. The statute does not explicitly immunize § 546(d) appointees from presidential removal. A serious constitutional lawyer would say the President has the better textual argument.
But the statutory design matters more than the textual argument here. Section 546(d) creates a temporal floor. The statute reads “may serve until” — language structurally designed as a protective period, not merely an upper bound. The court’s appointee serves until the President’s own appointee is confirmed by the Senate and qualifies, or until 120 days pass. If the President can fire the court’s appointee within the hour and keep whoever he prefers in the seat indefinitely, the “until” clause — the provision’s operative protection — becomes meaningless. The appointment function becomes a ceremony followed by an email.
This is not a novel question in the abstract. It is an emerging question with documented operational facts. The administration has done this before. In February, the Department of Justice fired Donald Kinsella after judges in the Northern District of New York appointed him to fill the same kind of vacancy. The same administration has been installing personal loyalists in top prosecutor positions — Trump selected his personal lawyer James McDonald as Manhattan’s top federal prosecutor earlier this year. The operational pattern emerging across districts is: either fire the court’s appointee or preempt the court’s authority entirely by filling the seat with someone who serves at the President’s personal discretion.
The Floyd variable sharpens the point. Floyd’s 120-day interim term expired in February. He remained. No presidential nominee was pending before the Senate. The Associated Press reported that the Justice Department has sought to keep unconfirmed prosecutors in their positions indefinitely through novel personnel maneuvers — technical reappointments, acting designations, or simply allowing expired-term appointees to continue performing the functions of the office. The purpose is not to staff the office. Floyd was already staffed. The purpose is to prevent the judges from ever exercising the appointment authority § 546(d) grants them. By never declaring the seat vacant, the administration pre-empts the judicial appointment mechanism entirely. If the seat is never formally “vacant” — if the expired-term appointee keeps showing up — the judicial backstop never triggers.
When the judges finally appointed Rogoff anyway, the administration removed him within the hour.
The constitutional question is genuine and unresolved. The administration is operating in the gap between the President’s near-plenary removal authority under Article II and Congress’s structural design under § 546. If the statute’s “until” language creates a floor — a minimum period the court’s appointee serves — then the removal may have violated the statute itself. If the removal power overrides the statutory protection, then the judicial appointment mechanism is functionally dead: the President can remove any § 546(d) appointee the instant judges make the appointment, and the statute’s guarantee of continued independent prosecution in every district becomes a suggestion the executive branch is free to decline.
The administration is, operationally, treating the second reading as settled law. Fire first. Let the courts — if anyone challenges — sort out whether the statute means what its structure says. The ambiguity is the strategy: the removal’s legality is contested, but the operational effect is immediate. The court’s appointee is gone. The President’s preference remains.
This is what regime-level control over federal prosecution looks like district by district. The statutory framework was designed to ensure that in every one of the ninety-four federal districts, someone independent of the President’s direct preference exercises prosecutorial authority even when the executive branch declines to fill the position through the ordinary confirmation process. If the President can fire a judge-appointed prosecutor within the hour, install personal lawyers in sensitive districts, and keep expired-term loyalists in place through technical maneuvers that prevent the judicial appointment clause from ever activating, then the statute is dead letter. The question is no longer whether the administration has the legal authority to do any one of these things individually. The question is whether the cumulative effect — executive control over federal prosecution in every district, with the judicial backstop nullified in practice — is the structure Congress intended when it enacted § 546.
Rogoff is consulting with other lawyers about suing. The legal question may eventually reach the courts. But the operational fact has already landed: the seat is empty, or rather, the seat belongs to whoever the President chooses to put in it. The statute exists to prevent exactly this. The statute has not prevented it.