A federal appeals court panel heard arguments on Friday regarding whether President Donald Trump has the legal authority to fire court-appointed U.S. attorneys. The litigation stems from a legal challenge against the administration’s dismissal of Seattle-area U.S. Attorney Roger Rogoff, who was appointed by the district’s federal judges in July before being immediately removed by the president.
Earlier this month, a lower court judge ruled that the administration lacked the power to remove Rogoff, determining that the dismissal violated the law. Bringing the case before the 9th Circuit Court of Appeals, Justice Department attorney Mark Freeman urged the panel to reverse that decision. Freeman argued that the lower court ruling is irreconcilable with Supreme Court jurisprudence regarding executive removal authority and presidential control over executive power, citing recent precedent that widened the executive’s capacity to dismiss certain agency leaders.
Freeman also asserted during the hearing that the existing oversight framework functions properly, pointing to several court-appointed U.S. attorneys who remain in their positions without presidential interference. However, questioning revealed nuances in those examples; at least one prosecutor he cited, the Manhattan U.S. attorney, was placed in the role by district judges after being nominated by the president.
Representing Rogoff, former U.S. Solicitor General Don Verrilli Jr. countered that permitting the president to dismiss court-appointed prosecutors grants the executive unchecked authority to bypass the traditional Senate-confirmation process required for top federal law enforcement posts. Verrilli warned that allowing unhindered dismissals creates structural problems that undermine the Appointments Clause by letting the administration circumvent Congress’s requirement for Senate-confirmed leadership.
The three-judge panel—consisting of Judge Richard Paez, Judge Jay Bybee, and Judge Jennifer Sung—probed both legal teams on the practical implications of the statute governing interim judicial appointments. Bybee noted that the governing statute specifies that a court “may” appoint a U.S. attorney, implying judicial discretion in whether to make an appointment at all. He observed that if a court declines to act, the Justice Department bears the responsibility of finding leadership for the office.
Verrilli acknowledged that dynamic but maintained that the statutory framework is specifically designed to encourage the executive branch to submit nominees to the Senate promptly. Judge Sung similarly questioned how presidential removals affect office stability, noting that vacancies can leave offices in disarray and subject ongoing prosecutions to legal challenges over whether a properly authorized official holds the U.S. attorney post. Sung suggested that this operational friction is intended to incentivize the administration to secure Senate confirmation for its nominees.
Addressing the constitutional balance of power, Bybee raised questions about the reverse scenario, asking Freeman whether adopting Rogoff’s position would allow a district court to remove a U.S. attorney it disliked and make serial appointments until selecting a preferred candidate. Freeman answered affirmatively, arguing that serial removals by a judiciary branch present separate constitutional concerns.
