'This is all voluntary': Attorney for disputed federal prosecutor resisting Trump's firing tells 9th Circuit that federal law protects the Senate's 'advice and consent' power

Attorneys hotly disputed the finer points of the presidential removal power on Friday in a case regarding a federal prosecutor in Washington state who was appointed to serve as U.S. attorney by district court judges in lieu of President Donald Trump.

In the underlying case, the full slate of judges in the Western District of Washington chose longtime Seattle prosecutor Roger Rogoff to fill a vacancy the Trump administration had never addressed.

Rogoff was then fired via a White House email. Now, after he was reinstated by a lower court, the government aims to secure the 45th and 47th president's firing power within the 9th Circuit.

In broad terms, the lower court order foreclosed the power of the president to remove the judges' choice — absent a nomination and confirmation for the position before the U.S. Senate.

Neither party disputes that a confirmed nominee appointed to a four-year term would moot the present case entirely. But such work by the Senate is not in the offing — at least not anytime soon.

The DOJ says this effective hamstringing points to a severe constitutional conundrum and showdown that the U.S. Court of Appeals for the 9th Circuit would be better off leaving undisturbed.

Friday's panel was keen on constitutional arguments anyway.

One of the judges asked DOJ lawyer Mark Freeman to address "the idea that the removal power is incidental to the appointing power."

The government attorney said this was a default rule that "can be displaced" when Congress specifies by statute or "when allowing the removal power to follow the appointment power would independently violate the Constitution."

Both of those considerations are present in Rogoff's case, Freeman said, but he aimed his focus on the government's preferred statute.

"Mr. Rogoff was a United States attorney, not something else…he was the United States attorney and he was therefore removable by the president," the government attorney said. "We have a very straightforward argument: 'each U.S. attorney is removable by the president' means 'each U.S. attorney is removable by the president.'"

To hear the DOJ tell it, the presidential removal statute trumps the judicial appointment statute applicable to longstanding vacancies.

Freeman said the use of the statute preferred by Rogoff is an argument that "rests on inferences and assumptions."

"We are not here challenging the ability of Congress to assign to a court of law the authority to appoint a U.S. attorney," the government attorney continued. "Mr. Rogoff was validly appointed. If Congress actually wrote the statute that my friend thinks it wrote — that you can appoint an attorney and no one can remove him — we think that would be unconstitutional."

One of the judges on the panel then pressed Freeman as to whether the district court and president had "concurrent removal power."

"To allow a court to remove a U.S. attorney would impose, I think, fairly severe problems," the government lawyer replied.

Freeman offered a slippery-slope argument, at length:

I think probably every criminal defendant would say both that charge is outrageous, and the court should have thrown it out, and the district court's failure to throw it means the district court should have removed the U.S. attorney. And you would get appeals from parties arguing that the district court erred by not removing the U.S. attorney. And the U.S. attorney would have to take every comment or remark from the district court judge as "Is that an implied threat to remove me if I don't follow it?"

The judge then asked if a court could remove a magistrate or a court of appeals could remove a bankruptcy judge. Freeman signaled that he had seen a court remove a bankruptcy judge before — but then sought to steer the conversation back to the government's arguments.

"It's the interbranch appointment piece here," Freeman went on. "And the fact that the Supreme Court has said again and again that the power of removal gives you at least an implied and sometimes an explicit power of control that produces the mixing of executive and judicial functions that would be so deeply problematic in this case."

Rogoff's attorney, Donald B. Verrilli, also tried to keep the focus on statutory arguments but said the government was "wrong twice over" about the statutes being relied upon  — by both parties.

The plaintiff's lawyer said the controlling law was the vacancy-filling statute and argued the government was wrong about its own reading of the presidential removal statute.

On that second point, Verrilli argued the word "each" in the presidential removal statute is not a synonym for "any" but rather is a referent that points back to the immediately preceding language and therefore only applies to U.S. attorneys who are appointed to serve full four-year terms.

One of the judges interjected to move the conversation back to the Constitution, essaying the idea that Rogoff's argument would amount to the creation of a legislative removal power.

The plaintiff's lawyer strongly rejected this line of thought.

"I don't think nomination and confirmation is an exercise of legislate removal power by the Senate," Verrilli said. "That's an exercise of the constitutional advice and consent power in the appointments clause which the Senate indisputably has. If the president nominates a candidate and the Senate confirms that candidate, that candidate becomes U.S. attorney and that would end the tenure of a U.S. attorney appointed, but it doesn't amount to a removal."

Rogoff's lawyer also rejected the idea that a court-appointed U.S. attorney is somehow immune to political accountability.

"A court-appointed U.S. attorney, just like a confirmed U.S. attorney or an acting U.S. attorney, is subject to the plenary control of the Attorney General in everything that U.S. attorney does," Verrilli said.

The plaintiff's lawyer, similarly under sustained judicial fire about the constitutional issues, offered a dovetailing argument about the interplay between congressional intent and the separation of powers.

"This is not a for-cause removal provision," Verrilli argued, referring to Section 546 of the U.S. Code — the plaintiff's controlling statute that allows the judicial appointment if no candidate is confirmed.

"This is supposed to function as a stopgap to incentivize a president who has opted for the 546 route to get a nomination before the Senate," Rogoff's lawyer explained. "It is supposed to act as a protection for the Senate's advice and consent power."

The plaintiff's attorney then sought to put a fine point on the basic facts of the case in the context of the applicable law.

"This is all voluntary," Verrilli said. "The president opts to use 546. The president can use the Vacancy Reform Act. The president can get a nomination up to the Senate and get a confirmation."