Until the Vacancy Is Filled

Roger Rogoff took the oath as U.S. attorney for the Western District of Washington shortly before eight on the morning of 15 July. At 8.34, by his own sworn account, while he stood in the lobby of the office he had just been appointed to run, an email arrived from the deputy director of Presidential Personnel. “The President of the United States has directed that I inform you that, pursuant to his authority under 28 U.S.C. 541(c) and Article II of the Constitution, you are hereby removed from the office of the United States Attorney for the Western District of Washington.”

On Thursday a federal judge put him back. Chief Judge Stanley Bastian of the Eastern District of Washington, sitting in Seattle because the Western District’s own judges had stepped aside, granted a preliminary injunction after a morning hearing. His ten-page written order declares that Rogoff “is the U.S. Attorney for the Western District of Washington and has been the rightful holder of that office since July 15, 2026,” and bars the administration from treating anyone else as the district’s chief federal prosecutor until a successor is confirmed by the Senate. The same day, the Justice Department filed a notice of appeal to the Ninth Circuit.

Two sentences in Title 28

The case is a collision between two sentences of the U.S. Code. The first is section 541(c): “Each United States attorney is subject to removal by the President.” The second is section 546(d): when an interim appointment expires, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”

Section 546 is a ladder. The ordinary route into the office is nomination by the President and confirmation by the Senate. When the office is empty, the Attorney General may appoint someone, but only for 120 days. When that clock runs out, the power passes to the district court. In Seattle the Attorney General’s choice was Charles Neil Floyd, appointed by Pam Bondi and sworn in on 6 October 2025. His 120 days ran out in February, and the department then named him first assistant, the deputy’s post. In January the court gave notice that it intended to make an appointment, took applications, had them screened by a merit panel and appointed Rogoff, a former federal prosecutor and King County judge. The government does not dispute any of that. Its own brief puts the question narrowly: “No one in this case is disputing the district court’s authority to appoint Rogoff. The only issue before this Court is who can remove Rogoff.”

The government’s reading

The Justice Department’s answer starts from one word. “Each,” its brief says, means every one, and a court appointee is a U.S. attorney: the Ninth Circuit has itself called section 546(d) appointees “fully-empowered United States Attorneys.” The same phrase in section 547, which sets out the job, covers court appointees by common agreement, the brief says, so it must cover them in section 541(c) as well. The brief cites the First Circuit’s 2000 decision in United States v. Hilario, which, as the government quotes it, said the statute lets the President “override the judges’ decision and remove an interim United States Attorney,” along with district court rulings in New Mexico in 2008 and New Jersey this year, and a 1979 opinion of the department’s Office of Legal Counsel. Behind the statute it puts the Constitution. Under the Supreme Court’s decision this year in Trump v. Slaughter, the brief says, “subordinates who exercise the President’s power are subject to removal by him.”

It also presses a practical point. If the President cannot remove a court-appointed prosecutor, who can? Not the judges, the government argues, because supervising a prosecutor would entangle them in the work of the executive branch. Court appointees would then be “unremovable by anyone for any reason and therefore accountable to no one.” Rogoff’s lawyers answered at the hearing, KUOW reported, that the appointing judges could remove one in an urgent case of malfeasance. Their written motion adds that the President can end a court appointee’s service at any time, for any reason, by getting a nominee confirmed.

The court’s reading

Bastian read the two sections as covering different officials. Section 541(c), he wrote, applies to U.S. attorneys who came into office by nomination and confirmation, “not court-appointed U.S. Attorneys appointed pursuant to a separate statute.” Section 546(d) says the appointee serves until the vacancy is filled. “It does not say until that person is fired by the President.” And the vacancy, on his reading, is filled only by a confirmed nominee.

The structural argument is the stronger part of the order. Congress, it notes, provided three temporary ways to fill the office: an acting official under the Vacancies Reform Act, limited in time; an Attorney General’s appointee, limited to 120 days; and a court appointee, with no fixed limit. If the President could dismiss the court’s choice at will, the order reasons, the limits on the first two would stop meaning anything, and so would the incentive to send a name to the Senate. “Neither Congress nor the President can unilaterally and permanently fill the office,” Bastian wrote. “The two branches must work together.”

The order is thinner on the government’s authorities. It cites Hilario only for the First Circuit’s description of section 546(d) as “a sensible framework,” and does not discuss the passage the government relies on, the New Mexico and New Jersey rulings or the 1979 opinion. Rogoff’s motion did: those cases, it argued, were brought by criminal defendants challenging how a prosecutor was appointed, so removal was never in issue. The order says the government offered no “legal support or citation” for a constitutional removal power, though the government’s brief gives a section to Article II and leans throughout on Slaughter, which the order does not mention. Bastian described the question as apparently “one of first impression.” Those gaps are where the appeal will be argued.

The first to sue

The facts are not new. In the government’s account, President Trump has removed court-appointed U.S. attorneys in New Jersey, the Northern District of New York and the Eastern District of Virginia in the past year, and in February 2025 removed Tessa Gorman, whom the same Seattle court had appointed in 2024. In January 2006 Harriet Miers, then counsel to President George W. Bush, removed a court-appointed U.S. attorney in South Dakota citing the same two authorities the July email did. None of them went to court. Rogoff did.

Congress has been here before as well. In March 2006 it took the district courts out of the process, letting an Attorney General’s interim appointee serve indefinitely. After the dismissal of several U.S. attorneys later that year, it restored the 120-day limit and the courts’ role in June 2007, in Public Law 110-34. One of the prosecutors dismissed in 2006 was John McKay, then the U.S. attorney in Seattle. KUOW reported that he sat beside Rogoff in court on Thursday; he joined a friend-of-the-court brief by former U.S. attorneys supporting him.

What happens now

The lawsuit has already moved the administration onto the confirmation track. On 14 September the President nominated Pete Serrano, now first assistant U.S. attorney in the Eastern District, for the Seattle post, and on 25 September he signed a memorandum directing Floyd to perform the office’s duties. The government itself asked the court to take notice of both. The order holds that neither man is the U.S. attorney: Serrano because the Senate has not confirmed him, Floyd because the court had already acted. Senator Patty Murray of Washington has said she will try to block Serrano’s confirmation.

A Justice Department spokesperson told KUOW the department would “seek an immediate stay and will appeal.” Bastian declined to stay his own order and required no bond. The Ninth Circuit’s schedule, issued on Thursday, sets the government’s opening brief for 29 October; a request for a stay would be made separately. Rogoff’s lawyers said he was going from the courtroom straight to the U.S. attorney’s office, in the same building.

Whatever the Ninth Circuit decides will reach well beyond Seattle. If the government is right, section 546(d) gives the judges a choice the President can undo by email within the hour. If Bastian is right, a President who has not got a nominee through the Senate within 120 days leaves the choice to the judges until he does. Both sentences go back decades. By the government’s own account, Rogoff is the first court appointee to sue to find out which one governs.

Sources

The ruling, the government’s opposition brief, Rogoff’s motion and sworn declaration, the government’s request for judicial notice, the transfer order and the Ninth Circuit’s schedule were read from the docket of Rogoff v. Trump, No. 2:26-cv-02566 (W.D. Wash.), as filed on CourtListener; the appointment order was read on the district court’s website. Sections 541 and 546 of Title 28 and their amendment history are quoted from the Legal Information Institute at Cornell. The government’s descriptions of Hilario and Slaughter are quoted from its brief; this publication has not read those opinions in full for this piece. The hearing exchanges, the Justice Department’s statement, the account of John McKay and Rogoff’s lawyers’ remarks after the hearing are from KUOW; The Seattle Times also reported the ruling from the bench. Senator Murray’s position is as reported by KUOW and by the Associated Press in the Los Angeles Times.