This morning, the federal judges for the US District Court for the Western District of Washington unanimously appointed veteran local attorney Roger Rogoff as our US attorney, and he was sworn in by Chief Judge David Estudillo. At 8:30 am, he headed into his new office, and asked to see Charles Floyd, the former ICE attorney and hardline Tacoma immigration judge who Trump selected to be US attorney, but who remains unconfirmed by the Senate and is leading the office as “First Assistant” US Attorney.
“In the ten minutes I was waiting for them I got an email from President Trump,” Rogoff told The Stranger on Wednesday afternoon. He’d been fired.
It wasn’t exactly a surprise. Rogoff says he was “pretty certain” he’d be immediately fired since the court had informed the Trump administration two weeks ago of his upcoming appointment and received no reply.
Rogoff has lawyered up, and says he’s looking at whether and how to challenge the firing, and building out a legal team.
“It’s safe to say I’m considering a lawsuit,” he says.
Rogoff says it’s important for people to understand that his appointment by the judiciary was not some made-up process, but done under constitutional law. He worked in the US Attorney’s Office for seven years, and says it’s important that the person leading it is doing so legally.
The stage looks set for a long rumored showdown between Puget Sound’s federal judges and the Trump administration to determine which branch of government, the judiciary or the executive, gets to choose who leads our US attorney’s office.
The legislative branch of the federal government is involved too, of course, as it is the Senate which votes to confirm or deny the president’s appointee for a district’s US attorney. But each state’s home senator has effective veto power over these appointments, and US Senators Patty Murray and Maria Cantwell have called Trump’s man, Floyd, unqualified and have opposed his candidacy from the beginning. Because the appointment would be dead on arrival, the Trump administration never even filed the appointment paperwork with the Senate. Floyd stuck around in limbo, and now the courts have made their move by convening a judicial conclave to appoint his replacement against the president’s wishes.
Sen. Murray put out a statement backing the Seattle-area judges and Rogoff this morning after the firing: “He should have never been fired, but the President wants to appoint an out-of-touch extremist who will put Trump over the rule of law. This administration doesn’t want to deal with advice and consent—they just want to install cronies to carry out a corrupt political agenda.”
The president choosing someone and the Senate confirming them is how this is usually supposed to go, but now we can see for ourselves why there’s a safety valve in the law that allows the judiciary to step in and fill the vacancy themselves if for whatever reason the clowns in the other Washington can’t get their circus in order.
It’s a big step into the political spotlight for the Seattle area’s federal judges, all of whom, it must be noted, are Biden appointees, the only bench in the country with that distinction. The judiciary is typically the quietest branch of government, as their deliberations are private and they prefer not to be treated as politicians despite their exercise of political power and that, in many cases, we elect them.
It was pretty much common knowledge the Trump administration would likely fire the judge’s pick immediately on appointment. As Interim US Attorney General Todd Blanche said when the judges empaneled a board to review resumes for the gig: “these candidates do not have the support of POTUS, and I expect they will suffer the same fate as others have when judges ignore Article II.” That’s a reference to the three judicially appointed US attorneys he fired before this. Blanche, for the record, is also working while unconfirmed by the Senate, whose judiciary committee grilled him all morning as part of the appointment process.
With the firing expected, the ballsy move by the judges was appointing someone willing to sue to retain the office, something that didn’t happen the three other times Blanche fired judicially appointed US attorneys. The judges in those other districts weren’t willing to escalate against the Trump administration’s retaliation, but Western Washington’s judges showed today they are willing to wade into uncharted waters.
If it feels like our federal judges share our senators’ low opinion of Floyd based on their move to unilaterally replace him, the text of their order appointing Rogoff this morning seals it. The judges did not even bother to name Floyd, stating only that after the Biden administration’s US attorney was axed by Trump “a presidentially nominated and Senate-confirmed officer did not succeed her. The President has not yet nominated a permanent United States Attorney for this District.” Brutal.
The Stranger reached out to the US attorney’s office for comment, but their public affairs officer said they have no comment, and to reach out to the DOJ, which has not replied to a request for comment.
As a reminder for why all this palace intrigue matters to normal people, the US attorney is the one who decides who to criminally prosecute under federal law in the district, and given the Trump administration’s crackdown on civil liberties, having a career litigator like Rogoff rather than a regime loyalist like Floyd holding the gun is an important distinction. Over in Eastern Washington’s federal court district, the US attorney resigned rather than press broad conspiracy charges against anti-ICE protesters trying to stop a deportation, something his Trump loyalist replacement (also unconfirmed by the Senate) had no problem doing.
Not knowing who is legally serving as the local top federal attorney also creates a big problem with criminal prosecutions. Defendants in other districts have already had cases tossed because the courts found Trump’s unconfirmed picks for US attorneys were serving unlawfully.
With two branches of government claiming their legal right to appoint the US attorney in Western Washington, just who is in charge is a question all of us are asking.
