Appeals court pauses fired federal prosecutor’s reinstatement

An appeals court panel on Sunday paused a lower judge’s ruling that ordered the Trump administration to immediately reinstate Roger Rogoff as the top federal prosecutor in Seattle.

President Trump ousted Rogoff in July from the U.S. attorney’s office in the Western District of Washington, less than an hour after he was sworn in following his unanimous appointment by federal judges.

U.S. District Judge Stanley Bastian, an appointee of former President Obama, sided with Rogoff’s claim that his termination was unlawful and ordered the Trump administration to restore him to the position until a successor is chosen through the Senate confirmation process.

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The Trump administration quickly sought an emergency stay to halt the order while an appeal played out.

The 9th U.S. Circuit Court of Appeals granted the administration’s request on Sunday, noting in an unsigned order that it was “only intended to preserve the status quo” as the case moves forward.

Rogoff’s lawyers noted in a filing Monday that while he “does not concede” that the administration is likely to prevail, he would remain out of the role for now.

The case stems from a dispute over who has the power to fire court-appointed U.S. attorneys, a question that has not yet been tested in federal court.

Rogoff has argued that Trump lacks the constitutional and statutory authority to unilaterally remove him. The Justice Department contends that the president can fire any U.S. attorney regardless of who appointed them.

Federal law states that the head of the Justice Department can appoint an interim replacement for up to 120 days when a vacancy arises for a U.S. attorney. Once that time is up, district court judges may appoint someone to “serve until the vacancy is filled,” which is how Rogoff came to lead the prosecutor’s office.

“Neither Congress nor the President can unilaterally and permanently fill the office,” Bastian wrote in his Oct. 1 order. “The two branches must work together to fill the office for longer than the short periods of time authorized by the statutes.”

Trump nominated Pete Serrano, who serves as the first assistant for the Eastern District of Washington, to fill the Seattle post last month.