NCLA to Ninth Circuit: President Trump Had Right to Fire Unconstitutionally-Appointed U.S. Attorney
Roger Rogoff v. Donald J. Trump, in his official capacity as President of the United States, et al.
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Washington, DC, Oct. 19, 2026 (GLOBE NEWSWIRE) — The New Civil Liberties Alliance has filed an amicus curiae brief in Rogoff v. Trump urging the U.S. Court of Appeals for the Ninth Circuit to overturn a preliminary injunction that would reinstate Roger Rogoff as U.S. Attorney for the Western District of Washington. In July, the U.S. District Court for that district appointed Rogoff as U.S. Attorney. Less than an hour later, President Trump removed him from office. Rogoff then sued the Trump Administration, and the district court’s Chief Judge issued the preliminary injunction.
The Chief Judge held that President Trump lacks statutory and constitutional authority to fire court-appointed U.S. Attorneys, despite the Supreme Court’s recent Trump v. Slaughter decision recognizing that Article II of the Constitution authorizes the President to terminate at will any official who exercises federal executive power. The Ninth Circuit has stayed the Chief Judge’s order, keeping Rogoff out of office, as it considers the Administration’s appeal. In that appeal, NCLA presents another compelling reason to deny Rogoff’s reinstatement: the Constitution prohibits courts from appointing U.S. Attorneys in the first place.
A U.S. Attorney is a principal officer of the United States—and therefore, under the Constitution’s Appointments Clause, must be appointed through nomination by the President and confirmation by the Senate. Even if U.S. Attorneys were inferior officers of the United States, their appointment by courts would still violate the Appointments Clause, which does not authorize cross-branch appointments.
The court appointment of U.S. Attorneys also violates the Constitution’s Separation of Powers because it involves judges in the work of the Executive Branch. NCLA points out that appointing U.S. Attorneys “draws courts into inherently political decisions about prosecutorial priorities and undermines the appearance of judicial impartiality. The public will perceive that a judge is more likely to credit a court-selected attorney, and a criminal defendant may well wonder whether a judge will unduly credit a prosecutor whom that judge had a hand in appointing.”
This problem of court-appointed U.S. Attorneys is widespread, with more than one-third of current U.S. Attorneys having been court-appointed. In most districts with a court-appointed U.S. Attorney (though not in Rogoff’s case), the court appointed the same person whom the Attorney General had previously appointed without Senator confirmation for a 120-day term, as federal law allows. When that happens, the President receives his choice of U.S. Attorney without getting the Senate’s confirmation. NCLA points out that this procedural problem allows both the President and the Senate to escape their constitutional responsibilities.
In the 1999 United States v. Gantt case, the Ninth Circuit wrongly held that U.S. Attorneys are inferior officers and that Congress may empower courts to appoint them under the Constitution’s Appointments Clause. NCLA asks the Ninth Circuit to overrule that fatally flawed decision.
NCLA released the following statements:
“The district court’s order would allow courts to appoint U.S. Attorneys who do not answer to the President or anyone else. The Ninth Circuit should recognize that the Constitution doesn’t permit such appointments and hold that Trump’s removal of Rogoff was proper.”
— Jacob Huebert, Senior Litigation Counsel, NCLA
“The court below cannot have it both ways. The judges cannot appoint the U.S. Attorney and insulate him from presidential removal. If they can appoint him, it’s only because he is an inferior officer. But if, as they say, the President cannot remove him, then he has to be a principal officer—which means the President had to appoint him.”
— Mark Chenoweth, President, NCLA
For more information visit the amicus page here.
ABOUT NCLA
NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
Joe Martyak New Civil Liberties Alliance 703-403-1111 joe.martyak@ncla.legal
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