The office of US attorney is the top cop for each of the nation’s federal court districts. It’s an incredibly important office, but right now in the Western District of Washington we don’t technically have anyone doing the job.
That’s because the Trump administration went against the established tradition—and political realism—of appointing someone the district’s senators are willing to confirm. Trump’s pick for liberal Western Washington is right-wing immigration judge and former ICE lawyer Charles Floyd of Tacoma (home to the Northwest ICE Processing Center).
Why does this matter? Much like how the King County Prosecuting Attorney decides which criminal cases to pursue under state law in the Greater Seattle Area, the US attorney decides who to prosecute in the district under federal law. And when the president is demanding crackdowns on immigrants, trans people, anti-genocide and anti-war protesters, and others, the US attorney is the one who pulls the trigger.
The distinction between having a far-right Trump loyalist as top federal prosecutor instead of a relatively apolitical career civil servant is most clear over the Cascades in the Eastern District of Washington, where the former US attorney resigned rather than press broad conspiracy charges against Spokane anti-ICE protesters. The replacement US attorney was more than happy to do it, with the indicted protesters who didn’t take plea deals found guilty by a jury last month (the so-called Spokane Three).
Washington’s US Senators Patty Murray and Maria Cantwell don’t think Floyd is qualified for the office and have pledged to torpedo his nomination should the Trump administration send the paperwork over to the Senate.
President Donald Trump’s DOJ has for months tried to shoehorn him in anyway, as they have across many of the country’s 94 federal judicial districts, but they’re running out of loopholes. While US attorneys are traditionally chosen through a presidential nomination followed by a Senate confirmation, an arcane federal statute, Section 546, allows a district’s federal judges to appoint their local US attorney in the absence of one confirmed by the Senate.
Western Washington’s federal judges announced in January that they were doing just that and began soliciting job applications from qualified attorneys. In a previously unreported order filed in March, the court appointed a panel to filter those applications chaired by Rob McKenna, the Republican former attorney general of Washington currently suing to overturn the new Millionaires Tax passed by Democrats in the state legislature.
But don’t panic! The judges are not a bunch of conservatives about to appoint an unqualified Trump loyalist, and the panel is a diverse cross section of veteran attorneys, not political partisans. The other panel members are former Assistant US Attorney Helen Brunner, federal defense attorney Jennifer Wellman, former president of Western Washington’s Federal Bar Association Robert Flennaugh, and the association’s current vice president Thomas Vertetis.
Just because judges have the authority to select the US attorney for their district themselves doesn’t mean they always do. In the Eastern District of Washington, Trump’s pick for US attorney has also been blocked by Murray and Cantwell for his right-wing politics and scant judicial experience, but the district’s judges have made no public moves to replace him.
Why are the Western judges more willing to exercise their power compared to the Eastern judges? They won’t say. Judges aren’t big on their deliberations being part of the public record, even when they’re appointing an official that the president and the Senate are typically responsible for selecting.
But for one thing, all the active Western Washington federal district court judges are former President Joe Biden’s appointees. Our bench became understaffed during Trump’s first administration as judges moved from active roles into “senior” status. Much like the current debacle surrounding the US attorney, Murray and Cantwell weren’t going to sign off on right-wing judicial replacements, and Trump wasn’t about to appoint more progressive ones they’d prefer.
The gates were opened when Biden was elected, and his progressive appointees sailed through to fill the vacancies. Within a few years, every active judge on the bench in the Western District of Washington was a Biden appointee, the only district where Biden managed to pull that off.
Attempts to appoint US attorneys to other federal district courts have gone poorly. Judges in the Northern District of New York appointed a US attorney only for the US Department of Justice to fire him within a few hours. According to reporting by Bloomberg, Seattle-area lawyers “including people communicating with the judiciary about the selection” want the judges to select a US attorney willing to be immediately fired in order to sue the Trump administration and force the issue.
It’s not the first time the Western Washington bench has appointed a US attorney under Section 546, but the political circumstances are different.
In both 2014 and 2024, the US attorney resigned to seek elected political office (that’s how Jenny Durkan became Seattle mayor and Nick Brown the Washington Attorney General). The US Department of Justice is allowed to appoint a successor US attorney in this circumstance, typically the predecessor’s chief deputy, but the judiciary still retains their right to appoint a US attorney in the absence of a Senate-confirmed nominee.
In both cases, Western Washington’s federal judges chose to appoint the same person as the DOJ, avoiding the messy separation of powers conflict we’re looking at now. Importantly, those appointees were career federal prosecutors qualified for the job, not the partisan loyalists with little experience in the district like the US attorney appointees the Trump administration is pushing now.
