Former US Attorney General Roger Rogoff on Tuesday sued President Donald Trump’s administration for firing him just hours after he was appointed to the position, claiming that his removal violates federal statutes and the Appointments Clause of the Constitution.
In his complaint, Rogoff claims that by firing him and “committing to firing anyone else a district court appoints without ‘the support of POTUS,’ the president has attempted to negate Congress’s exercise of its constitutionally enumerated power.” The suit alleges that his firing violates the text of 28 U.S.C. §546, which provides that he shall serve until the vacancy is filled by a Senate-confirmed nominee, as no individual has been nominated or confirmed to fill the vacancy.
The complaint states that “the President cannot grant himself the authority to make those interim appointments instead, nor can he rewrite §546(d) to require presidential approval of the district court’s choice. But in purporting to remove Mr. Rogoff, the President has attempted to do both.”
Rogoff, a long-time federal prosecutor and judge, was appointed to the position of US attorney for the Western District of Washington by district court judges earlier this week under statutory authority provided by Congress. President Trump subsequently removed him from the position, chastizing the district court for not consulting with the administration before appointing Rogoff.
The Appointments Clause provides that the default rule for appointments of inferior officers, such as US attorneys, is by presidential nomination and Senate confirmation. This rule has been expanded under statute 28 U.S.C. §546 to allow for the temporary filling of these positions without Senate confirmation when there is a vacancy. In this situation, the executive branch can appoint a US attorney to fill the position, but they may only serve for a period of 120 days. When this appointment expires, the power shifts to the district court of the district where the vacancy occurs to appoint an attorney until the vacancy is filled by a Senate-confirmed nominee.
The Western District of Washington has been without a Senate-confirmed nominee for over three years. When the 120-day interim appointment by the executive branch expired, Rogoff was appointed by the district court and sworn in as US attorney. In the three-year period without a nominee, the district has seen two separate interim attorneys appointed by the US attorney generals.
In a post on X, acting US Attorney General Todd Blanche placed the blame on the district court judges, alleging that they “abandoned the time-honored process of consultation with the administration so that the selected US Attorney is qualified to serve in the administration.” He also conveyed that the judges may appoint a temporary attorney and the president has the authority to fire them.
As relief, Rogoff is seeking for the federal court to void his firing and reinstate him as US attorney for the district until the Senate names and confirms a replacement.
