NCLA to Court: President Trump Was Entitled 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.

Washington, D.C., Aug. 18, 2026 (GLOBE NEWSWIRE) -- The U.S. District Court for the Western District of Washington appointed Roger Rogoff as the district’s U.S. Attorney, but President Trump removed him from office. Rogoff has responded by suing the President, asking the District Court to restore his job. President Trump correctly argues that Article II of the Constitution gives him the authority to fire U.S. Attorneys at will. The New Civil Liberties Alliance has moved for leave to file an amicus curiae brief in Rogoff v. Trump presenting another compelling reason for the District Court to reject Rogoff’s request: the Constitution prohibits courts from appointing a U.S. Attorney 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 violates the Constitution’s Separation of Powers by involving 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.”

NCLA released the following statements:

“Federal judges should not choose the prosecutors who appear before them in criminal cases—and the Constitution does not allow them to do so. President Trump was within his authority to fire Roger Rogoff because the court had no authority to appoint Rogoff in the first place.”
— Jacob Huebert, Senior Litigation Counsel, NCLA

“Cross-branch appointments pose a direct threat to the separation of powers. This odious practice must end.”
— 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