When a district court uses Congress’s backup plan to keep a U.S. attorney’s office functioning, the president’s removal power does not automatically follow; that is the core holding from Seattle’s recent fight, and it reframes who controls interim federal prosecutors when ordinary confirmation politics stall.
The Short Version
- A federal court appointed Roger Rogoff as U.S. attorney for the Western District of Washington under 28 U.S.C. § 546(d); minutes after he was sworn in, the White House sent notice purporting to remove him.
- Chief Judge Stanley Bastian later ruled that the president cannot unilaterally fire a U.S. attorney appointed by the district court and restored Rogoff to office at the preliminary-injunction stage.
- The administration’s counter-theory is straightforward: courts may fill vacancies, but the president retains removal authority over any U.S. attorney, court-appointed or not.
- This case surfaces a long-latent separation-of-powers question: how Congress’s vacancy statute for prosecutors coexists with Article II removal principles—and who holds leverage when confirmation stalls.
What happened, exactly, and why it matters
On July 15, 2026, the judges of the Western District of Washington issued a general order appointing Roger Scott Rogoff as United States Attorney and had him sworn in that morning; the order expressly authorized him “to serve as the United States Attorney for the Western District.” Less than an hour later, Rogoff received a presidential message stating that he was removed from office. He sued. On October 1, 2026, Chief Judge Stanley Bastian granted preliminary relief and held that a president cannot unilaterally fire a district-court–appointed U.S. attorney; the court declared that Rogoff had been the rightful officeholder since his oath and enjoined interference with his service while the case proceeds.
The stakes extend far beyond one district. Congress created a layered system for keeping U.S. attorney offices staffed when nominations lag. The Seattle dispute converts an obscure safety valve—judicial appointment under § 546(d)—into a direct test of presidential removal power. The outcome shapes the practical independence of interim federal prosecutors and, by extension, how resilient federal criminal enforcement is to prolonged political deadlock.
The legal mechanism: how § 546(d) is supposed to work
U.S. attorneys are ordinarily nominated by the president and confirmed by the Senate. When a vacancy arises, the Attorney General can install an interim U.S. attorney for up to 120 days. If, at the end of that period, no Senate-confirmed successor is in place, § 546(d) authorizes “the district court for such district” to appoint a U.S. attorney “to serve until the vacancy is filled.” That text says two definitive things: courts can appoint, and service lasts until the vacancy is filled—i.e., by a Senate-confirmed successor or a new valid interim appointment within the statutory scheme. It says nothing about removal. That silence is the hinge on which this fight turns.
In Seattle, the judges used their § 546(d) authority through a public general order—the most transparent form of court administration—a step the district has used historically when vacancies persist. The order named Rogoff, defined the role, and triggered all statutory powers and responsibilities of a U.S. attorney upon his oath. That formal pedigree is why the court treated him as the lawful incumbent from July 15 forward and was willing to grant preliminary injunctive relief to protect the office’s continuity during litigation.
The competing theories of removal power
The administration’s position is clean and intuitive from an Article II lens: even if judges may appoint an interim prosecutor as Congress permits, the president retains constitutional authority to remove executive officers who exercise core executive power. The Justice Department articulated this view publicly; the acting attorney general asserted that while judges can appoint under the statute, the president can fire them, and the White House sent removal notice immediately after Rogoff’s swearing-in.
The district court took the opposite view at this stage. Relying on the statute’s structure and the need to avoid nullifying Congress’s vacancy regime, Chief Judge Bastian concluded that allowing unilateral presidential removal of a court-appointed U.S. attorney would upend the framework Congress designed—one that deliberately shifts appointment authority to judges after executive-branch stopgaps expire. In his ruling, he stated plainly that “the president cannot unilaterally fire a United States attorney appointed by the district court,” and declared Rogoff the rightful officeholder since oath.
Precedent, practice, and the gap between them
There is no Supreme Court decision squarely resolving this precise posture. Historically, the Office of Legal Counsel has asserted that the president may remove court-appointed U.S. attorneys, an opinion that reflects a broad view of executive removal authority. At the same time, the statutory text of § 546(d) is silent on removal and is framed to preserve office continuity “until the vacancy is filled”—a phrase courts and commentators have read as emphasizing stability, not presidential override. A Congressional Research Service note highlights an appeals-court view that district courts lack supervisory or removal power over interim U.S. attorneys, but it does not definitively answer whether the president’s removal power reaches court-appointed incumbents serving under § 546(d). The Seattle ruling steps into that lacuna and, for now, reads the statute to cabin unilateral presidential removal in this narrow context.
That posture explains both sides’ confidence. The administration points to constitutional structure and longstanding executive practice. The court points to statutory design and institutional competence: Congress gave judges this appointment role precisely when executive and Senate processes fail, and allowing immediate presidential removal would reduce § 546(d) to a formality. The preliminary injunction signals that, on the present record, the statutory framework and continuity-of-operations concerns outweigh the executive-branch’s generalized removal claims—at least in this district and at this procedural stage.
JUST IN: A federal judge has ordered the reinstatement of a Seattle prosecutor President Donald Trump fired less than an hour after judges appointed him.
Chief Judge Stanley Bastian ordered Roger Rogoff put back in the job while his lawsuit continues. Rogoff sued in July after…
— The Epoch Times (@EpochTimes) October 2, 2026
What the Seattle ruling does—and does not—decide
The order restores Rogoff’s authority and bars federal interference while litigation continues; appeals were lodged, so the appellate courts will likely provide the first comprehensive doctrinal treatment. The court’s premise is narrow: when the vacancy statute vests appointment in judges after the executive’s interim authority lapses, the president cannot negate that statutory solution by unilateral removal. It does not purport to eliminate the president’s removal power over Senate-confirmed U.S. attorneys or those installed by the Attorney General within the 120-day window. Nor does it grant courts ongoing supervisory control; it addresses only displacement by unilateral presidential act.
Two consequences follow if higher courts endorse this approach. First, the incentive structure around nominations changes: an administration that allows the 120 days to lapse risks ceding meaningful control to a court-appointed incumbent who enjoys protection from unilateral removal until a successor is validly “filled” under the statute. Second, U.S. attorney offices gain operational stability during protracted confirmation standoffs, reducing the risk of sudden leadership whiplash and the appearance of partisan interference in line prosecutions. If, instead, appellate courts restore unilateral presidential removal, § 546(d) remains a staffing backstop—but one subject to immediate executive displacement, muting its independence benefits.
How to read this fight going forward
For practitioners and observers, the practical questions to track are concrete. Does the government persuade appellate courts that Article II’s removal authority extends to court-appointed prosecutors notwithstanding § 546(d)’s structure? Do appellate opinions delineate what counts as “filling” the vacancy—Senate confirmation only, or also a renewed Attorney General interim appointment—and what timeline controls? And do courts tie their analyses to office continuity and litigation integrity, or to bright-line separation-of-powers principles that would generalize beyond U.S. attorneys to other interim officers?
Seattle forced these abstractions into the daylight with unusually crisp facts: a public judicial appointment order, an oath, and a same-morning email purporting to remove the new U.S. attorney. That clarity is why this case is a strong vehicle for appellate resolution and why, whichever way the law ultimately settles, it will set the practical ground rules for the next vacancy cycle.
Sources:
washingtontimes.com, wawd.uscourts.gov, cnn.com, law360.com, usatoday.com, upi.com, rawstory.com
