Left inset: Roger Rogoff sits for an interview about his firing on July 15, 2026 (KING5). Main: Donald Trump, president of the United States, and Marco Rubio, United States secretary of state, attend a press conference at the NATO Summit at the Presidential Complex in Ankara, Turkiye, on July 8, 2026. The North Atlantic Treaty Organization (NATO) is an international political and military organization established by the North Atlantic Treaty, with members committing to protecting each other from any threat. The NATO Summit takes place this year in Ankara, where the NATO Public Forum and the NATO Summit Defense Industry Forum are held. (Photo by Klaudia Radecka/NurPhoto via AP).
The U.S. Department of Justice on Friday asked the U.S. Court of Appeals for the 9th Circuit to reverse a lower court order and allow President Donald Trump to fire a federal prosecutor in Washington state who was previously appointed to serve as U.S. attorney, but who was not appointed by the 45th and 47th president himself.
In the underlying case, a panel of district court judges unanimously appointed Roger Rogoff to lead the Western District of Washington. The jurists chose the longtime Seattle prosecutor to fill a vacancy that the 45th and 47th president had never addressed. In less than an hour, however, Trump sent an email and axed the judges' choice.
In July, in a 24-page complaint, attorneys for the plaintiff argued the president's "purported firing" of their client "was unlawful."
Earlier this month, Chief U.S. District Judge Stanley Bastian, a Barack Obama appointee, agreed with the plaintiff. The court found that under federal law, the president does not have the "authority to remove executive officers that he has not appointed."
The DOJ immediately filed a notice of appeal. The government's arguments were submitted in a 67-page appellate brief on Friday.
The government frames the issue as a fundamental dispute about the limits and reach of executive power.
"The question in this case is whether the United States Attorney for the Western District of Washington—that is, the Executive official most immediately responsible for prosecuting federal crimes and defending claims against the United States in a district that encompasses millions of people and one of the Nation's most prominent cities—must be subject to supervision and removal by the President of the United States," the brief begins. "In the district court's view, the answer is no."
To hear the government tell it, the lower court got the law wrong.
"The district court's injunction is indefensible and warrants immediate reversal," the brief goes on. "To begin, the district court's order flatly contradicts the governing statute. Congress provided that '[e]ach United States attorney is subject to removal by the President,' without limitation."
The lower court judge, however, said the law in question is "limited to the removal of U.S. Attorneys in office by the nomination/confirmation process" that involves the U.S. Senate.
Since the confirmation process has been bypassed in the Rogoff case, Bastian said, the president's powers are now limited.
The DOJ rubbished this argument at length:
The district court side-stepped [the removal statute's] clear language and reasoned instead that construing the statute to nullify the President's removal authority for court-appointed U.S. Attorneys better serves the "incentive[s]…created by the Constitution and the statutory framework." But the district court had no license to subordinate the unambiguous statutory text to the court's own notions of the statute's purpose.
The appellate brief goes on to argue that the district court should have interpreted the statute in Trump's favor so as to sidestep thorny constitutional issues under the theory of constitutional avoidance.
"It was the court's obligation to 'construe the statute to avoid' 'serious constitutional problems,' not to conjure constructions that run headlong into separation-of-powers concerns," the brief argues.
To that end, however, the DOJ insists the U.S. Constitution comes down firmly on the side of the president's purported firing power.
"The President must have authority to remove U.S. Attorneys under Article II," the brief continues. "The Supreme Court has made clear that all '[s]ubordinates who exercise the President's power are subject to removal by him.' U.S. Attorneys are plainly executive officers because they exercise the President's 'conclusive and preclusive' authority to 'investigate and prosecute' crimes, and they do so for their entire district."
The filing elaborates on the constitutional argument:
[T]he Court can reverse on statutory grounds alone. But if more were needed, the district court's injunction contravenes at least a century of Supreme Court precedent. Enforcing the criminal laws of the United States is a quintessential executive function, and it is the President who is accountable in our constitutional order for all exercises of executive power.
The DOJ argues the upshot of Bastian's ruling is giving the Senate "an effective veto" over any potential removal of Rogoff.
"No one thinks Congress could validly enact a statute establishing the U.S. Attorney's Office in Seattle as a constitutional island uniquely independent of oversight by the President (or anyone else)," the brief goes on. "Yet that is not merely the effect, but the avowed purpose of the district court's injunction. Even if Rogoff were to engage in gross prosecutorial misconduct or flout the Attorney General's policy directives, the President's only recourse under the district court's view would be to lobby the Senate to confirm a permanent replacement."