In July, Roger Rogoff was Western Washington's new U.S. attorney for less than an hour before President Donald Trump swiftly fired him via email.
Now he's getting his job back.
On Thursday, U.S. District Judge Stanley Bastian granted a preliminary injunction and reinstated Rogoff as U.S. attorney — retroactively to the day he was appointed on July 15 — saying Trump had no authority to terminate him and ordering the president and the Justice Department not to interfere with Rogoff's duties.
It's the latest in the tug-of-war over who gets to be the federal government's top attorney in Western Washington.
The district’s 17 sitting federal judges appointed Rogoff when Trump had failed to formally nominate his own pick for U.S. attorney. Instead, Trump appointed Charles Neil Floyd as interim about a year ago and later used a work-around to keep him in the spot as first assistant" U.S. attorney.
Typically, a U.S. attorney is supposed to be nominated by the president, appear before the Senate Judiciary Committee and then be approved by the Senate, but Floyd's name was never advanced.
After his firing, Rogoff sued Trump and his attorney general, saying their actions were illegal.
In Thursday's hearing, one of Rogoff's attorneys, Hailyn Chen of Los Angeles, said Congress provided district judges with the ability to appoint a U.S. attorney if the president failed to properly do so — with the advice and consent of the U.S. Senate — in order to "deny the president unfettered power and install officers nearly as he chooses."
That statute derives from the appointments clause of the U.S. Constitution, Chen said, which "ensures that (the president) fills the executive branch with those who owe their allegiance to the rule of law" rather than to the president.
Allowing the president to summarily fire a U.S. attorney appointed by judges because the president failed to follow the law would render the statute meaningless, she said.
She added that the judicial appointment of a U.S. attorney is intended as a "stopgap measure" when the executive and legislative branches can't agree on a nominee.
Besides, Chen noted, the president can replace the judicially appointed U.S. attorney whenever he wants with another nominee, but he has to follow the law, which requires that individual be approved by the Senate.
The attorney for Trump and the Justice Department, Joshua Ha, argued that the president has control over the executive branch — U.S. attorneys fall under executive control — and that the Constitution gives the president power to hire and fire.
"The president's termination authority is unfettered," Ha stated. "The president does have the authority to remove someone … if he doesn't have full confidence in that person."
Ha argued that, if the president can't remove court-appointed U.S. attorneys, that results in a situation where nobody can remove them.
Following nearly an hour of arguments and several hundred pages of briefs, Bastian — in a rare move — said he was prepared to rule on the issue from the bench.
"The president cannot unilaterally fire a United States attorney appointed by the court," he said. "... Allowing the president to fire a United States attorney appointed by the court also eliminates the incentive to nominate a candidate that can be confirmed by the Senate."
Unless and until Rogoff is replaced by a nominee appointed by the president and confirmed by the U.S. Senate, Bastian ordered Trump and Attorney General Todd Blanche not to fire or otherwise obstruct Rogoff in the performance of his duties.
Bastian denied the government's motion for a stay of the injunction.
Last month, in an apparent attempt to circumvent Rogoff's attempt to obtain an injunction, Trump nominated Pete Serrano to the post in Western Washington.
Serrano, from Spokane, is currently serving as first assistant U.S. attorney in Eastern Washington and as special attorney to Blanche. He previously ran an unsuccessful campaign to become state attorney general.
Washington Sen. Patty Murray, a Democrat who sharply opposes Serrano's nomination, applauded Rogoff's return as U.S. attorney in Seattle.
“Trump fired a qualified, court-appointed U.S. attorney in under an hour simply because he didn’t pick him," Murray said. "Today a judge said what we all knew: That’s against the law.
Professor Carl Tobias, a constitutional scholar who holds the Williams Chair at the University of Richmond School of Law in Virginia, said Bastian's ruling "was exactly right."
"Todd Blanche’s firing of him less than an hour after the judges appointed Rogoff was disrespectful of the judges and Congress and the clear authority to appoint Rogoff," Tobias said. "What (the) DOJ is doing allows them to sidestep the statutes and the Constitution and Senate advice and consent."
While Serrano remains Trump's nominee for the job, Bastian ruled that he will not be the U.S. attorney in Western Washington until he is approved by the Senate, where he faces stiff opposition.
Rogoff did not have any immediate comment Thursday, saying only that he was "going to meet with my staff" in the U.S. attorney's office immediately after Bastian read his opinion from the bench.
Attorneys representing the Trump administration left the courtroom without comment.
The Western Washington judges who appointed Rogoff recused themselves from the case. Bastian came over from the Eastern District of Washington to preside.
A preliminary injunction is granted when the party seeking it — in this case, Rogoff and his attorneys — shows a likelihood that their lawsuit will succeed, that Rogoff would suffer "irreparable harm if the injunction weren't issued and that the injunction is in the public interest.
Rogoff previously served as an assistant U.S. attorney in Washington, working on violent crime, gangs and firearms-related matters. Gov. Jay Inslee appointed him as a King County Superior Court judge in 2013, and in 2022 Inslee made him the first director of the office of independent investigations, a statewide agency that reviews cases in which police use deadly force.
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