Yet another one of Trump’s many, many, often blatantly illegal playbooks is on display here. It seems Trump really doesn’t know who’s going to be loyal enough to satisfy him and also able to pass the rudimentary screening we generously call the Senate Confirmation Process.
So, what tends to happen is that Trump places someone in a lead DOJ role, bypassing the confirmation process entirely. He is allowed to do this, but only temporarily. If the president fails to get a nominee officially confirmed, the ball is now in the court’s… uh… court. The judges in the affected jurisdiction get to choose their own replacement for the vacant position. If the president wants to replace that person, he’s got to go through the confirmation process.
For the most part, none of that is happening. What is happening is that Trump names someone to the position, the clock runs out, the judges replace the prosecutor with their own selection, and within minutes to hours, Trump fires the court-appointed prosecutor.
It took nearly five hours for Trump to fire Donald Kinsella less than five hours after he was appointed to replace Trump’s unconfirmed appointee (and former personal lawyer) John Sarcone. Roger Rogoff, who was appointed by the court to replace Trump’s past-their-expiration-date personal selection for the Washington (state) US Attorney post, was fired only 54 minutes into his judicial appointment.
Rogoff, however, wasn’t willing to let Trump get away with this. He sued for wrongful termination. And he has emerged victorious, as the Associated Press reports:
A judge on Thursday overturned President Donald Trump’s decision to fire the court-appointed top U.S. prosecutor in Seattle, the latest development in a legal tug-of-war over the administration’s efforts to control who occupies the powerful Justice Department posts.
The question being answered here is who has the power to fire court-appointed prosecutors. Trump seems to think he can, but it’s certainly not because he feels his actions are supported by judicial precedent… because there isn’t any.
Judge Stanley Bastian’s order reinstates Rogoff and forbids Trump or the DOJ from firing him (again) until this case is entirely resolved. The answer Trump doesn’t want to hear is that nothing in the law allows him to fire anyone but his own appointees.
Can the President fire a court-appointed U.S. Attorney? No. The President cannot unilaterally fire a U.S. Attorney appointed by the Court. A court-appointed U.S. Attorney is not an acting U.S. Attorney nor are they an interim U.S. Attorney. Section 546(d) provides that a court-appointed U.S. Attorney serves until “the vacancy is filled,” which can only be done by the nomination/confirmation process.
It also makes it clear that the courts are going to keep doing this if Trump’s continues to bypass this process. Why? Because that’s what the law actually says. It doesn’t provide an exemption for Donald J. Trump and whatever he wants the law to be.
Once that time expires, the District Court may appoint a U.S. Attorney until that vacancy is filled.
It does not say until that person is fired by the President.
Of course, the administration has already appealed. The Ninth Circuit has issued a stay of its own, but it doesn’t undo the lower court’s block of any attempted firings. All it does is prevent anything else from happening until the appellate court hears the case. Roger Rogoff won’t have a final answer on this legal question until later, but for now, it seems pretty clear the law — as usual — isn’t on the side of the self-proclaimed “rule of law” president.