The problem with breaking the same law over and over in different jurisdictions is that lots of judges wind up taking a swing at you. After the first couple of them punch all the obvious holes in your goofy argument, the others start feeling the need to get creative. And yesterday Judge Stanley Bastian got very creative on the subject of Trump’s effort to evade Senate confirmation for U.S. Attorneys.
Judge Bastian is Chief of the Eastern District of Washington, but he was asked to weigh in on a lawsuit filed by Roger Rogoff, who says he’s the rightful U.S. Attorney in the state’s Western District. On July 15, Rogoff was appointed pursuant to 28 U.S.C. § 546(d), which allows the district judges to pick someone to run the prosecutor’s office if the president’s interim appointment expires with no Senate-confirmed replacement. Within the hour, Blanche had fired him.
That’s marginally more diplomatic than when Pam Bondi snorted that “This Department of Justice does not tolerate rogue judges — especially when they threaten the President’s core Article II powers.” That was after the District Court of New Jersey refused to bless Alina Habba’s continued tenure, just because she’d never prosecuted a case in her life.
Bondi tried various strategies to keep Trump’s cronies employed in jurisdictions where the Senate blue slip rule made confirming them impossible. The Third Circuit dropkicked her plan to reappoint Habba for multiple 120-day stints. The Ninth Circuit rolled its eyes at the effort to make Sigal Chattah the first assistant in Nevada, allowing her to succeed herself when her interim appointment timed out via the Federal Vacancies Reform Act. The Second Circuit nixed the plan to make John Sarcone a special counsel with all the powers of a U.S. Attorney. And, although the Fourth Circuit has yet to weigh in on Bondi’s claim that she retroactively ratified Lindsey Halligan’s appointment, oral argument did not bode well.
Eventually, Bondi seems to have achieved an uneasy equilibrium, leaving the crony candidate as First Assistant U.S. Attorney, effectively running the office without Senate confirmation. In the Western District of Washington, after they fired Rogoff, they installed a former immigration judge named Charles Floyd. That works as long as the judges in the district don’t appoint someone else. And so far, everyone has accepted that Trump has the absolute right to fire a judicial appointee … until Rogoff sued on July 21 to get his job back.
He argues that Congress serially delegated the power to temporarily fill a U.S. Attorney vacancy, first to the president and then to the courts. And Judge Bastian agreed that the law does not contemplate a president being able to remove a judicial appointee:
Neither Congress nor the President can unilaterally and permanently fill the office. The two branches must work together to fill the office for longer than the short periods of time authorized by the statutes. When the two branches refuse or fail to cooperate in the nomination/confirmation process, then and only then can the Court act to file the role. Once the Court acts and fills the rule, however, that decision can be changed only by the nomination/confirmation process.
The judge concluded that, “while the President has the power to remove executive officer whom he has appointed, see Trump v. United States, 603 U.S. 593 (2024), it does not follow he has authority to remove executive officers that he has not appointed.” And so the court ordered DOJ to let Rogoff back in the building and treat him as the rightful occupant of the office until such time as the Senate confirms a nominee — i.e. 2029, at which point there may be a Democrat in the White House who’ll put forward someone who can get buy-in from Senators Murray and Cantwell.
The administration immediately appealed. After all, Trump’s tagline is “You’re fired!” And the Supreme Court has certainly let him axe any number of agency heads and board members whose jobs Congress intended to protect. But as of this writing, the government has neither asked Judge Bastian to stay his order nor moved for emergency relief from the Ninth Circuit.
Bet that was an awkward morning in Seattle with two lawyers walking around the office, both claiming to be the boss.
Rogoff v. Trump [Trial Docket via Court Listener]
Liz Dye produces the Law and Chaos Substack and podcast. You can subscribe by clicking the logo:
