Appeals court considers Trump’s power to fire court-appointed federal prosecutors The arguments came in a case challenging Trump’s removal of the court-appointed U.S. attorney in Seattle.

By Erica Orden A Justice Department lawyer on Friday urged a federal appeals court panel to conclude that President Donald Trump can fire court-appointed U.S. attorneys.

The argument before the panel of 9th Circuit Court of Appeals judges came after a federal judge ruled earlier this month that Trump doesn’t have that power and therefore broke the law when he dismissed Seattle-area U.S. Attorney Roger Rogoff immediately after the district’s federal judges appointed him to the role in July.

The panel — consisting of Judge Richard Paez, a Clinton appointee; Judge Jay Bybee, a George W. Bush appointee; and Judge Jennifer Sung, a Biden appointee — appeared somewhat skeptical of several points made by Rogoff’s attorney, Don Verrilli Jr., a former U.S. solicitor general, but didn’t express an obvious allegiance to either set of arguments.

A Justice Department attorney, Mark Freeman, argued that the lower court’s decision “is impossible to reconcile with Supreme Court jurisprudence about the president's removal authority and control over executive power, beginning with the Supreme Court's recent decision in Slaughter,” a ruling that widened the president’s power to fire certain agency leaders.

Freeman also argued that “the system is working just fine,” pointing to several court-appointed U.S. attorneys whom the president hasn’t removed. At least one of those he named, however, the Manhattan U.S. attorney, was appointed by the district’s judges after Trump nominated him to the post.

Verrilli argued that if the president can legally fire a court-appointed U.S. attorney, it hands the president “unfettered power” to bypass the Senate-confirmation process traditionally used to install top federal prosecutors.

Such a scenario, Verrilli argued, would create “exactly the kind of problem that taking the appointments clause seriously should make one troubled by.”A U.S. attorney’s office, Verrilli said, is “an office that the Congress has said must be run by somebody who is confirmed by the Senate … and under their reading, the president has complete power to avoid that.”

Bybee pointed out that the statute in question says the court “may” appoint a U.S. attorney, “so that means that a court might also choose not to do so.”If that were to occur, he continued, “we would be in the position that we're in right now, which is that the DOJ would have to find somebody to run this office. Isn't that right?”

“That's true, Your Honor,” Verrilli said. “But I don't think that diminishes the point that this is intended to incentivize the president to bring a nomination up to the Senate.”He added: “The operation of the statute, as they read it, substantially diminishes that incentive.”

Sung also seized on this point, asking: “If the president removes the court-appointed U.S. attorney, that seems to leave no one in the U.S. attorney's position, and that's part of the complaint here is that it leaves the U.S. Attorney's office in disarray and leaves prosecutions subject to challenge for the absence of someone with valid U.S. attorney authority in the district. So why doesn't that serve as an incentive for the president to get his nominee confirmed?”

Verrilli replied that the question “confirms that the statutory structure operating as a whole is designed to put pressure on the president to get a confirmable nominee up to the Senate promptly.”

Bybee later asked Freeman: “If we adopted Mr. Rogoff's position that he's removable by the district court, is there anything that would prevent the district court from then subsequently removing a U.S. attorney that it didn't like, and then serially appointing U.S. attorneys until it got one it did like?”

“Nothing at all,” Freeman replied. “Exactly. This is not one free removal provision; it can be done serially … it's why the idea of court removal is constitutionally problematic.”