Fired Washington U.S. Attorney Files Suit to Overturn Morrison v. Olson

Randy Barnett and I recently completed the Separation of Powers section for the Fifth Edition of our casebook, reaching for the same question of whether we should retain Morrison v. Olson. After exchanging views, we concluded that retaining it was warranted in large part because Chief Justice Rehnquist traces the line of authority from Myers to Humphrey’s Executor. Furthermore, Justice Scalia’s celebrated dissent would later be vindicated by Slaughter. It is important for students to understand how we arrived at the current moment.

Nevertheless, we acknowledged that very little of Morrison endures. The Independent Counsel statute, along with the special prosecutor regulations, barely survived Trump v. United States and are effectively dead after Slaughter. Yet one aspect remains intact: whether federal judges may appoint prosecutors who are not removable by the President. There is now a case to overturn that remaining fragment of Morrison.

The U.S. District Court for the Western District of Washington appointed Roger Rogoff as United States Attorney. Trump promptly terminated Rogoff. Rogoff has since sued Trump, seeking a preliminary injunction to block the purported removal. Rogoff contends that Trump’s firing violated the Appointments Clause, even in light of Slaughter.

Slaughter does not contradict this point because it did not address the propriety of removal protections for inferior officers. Before Slaughter, the Supreme Court long recognized “two exceptions” to the broad principle that the President has unlimited removal power: the first allowed Congress to secure tenure protections for certain inferior officers, and the second limited removal in “expert agencies led by a group of principal officers.” Seila Law, 591 U.S. at 204 (emphases omitted). Slaughter did away with the latter but left the former standing. 2026 WL 1855612 at *15, *18 (“Nor do we determine the fate of officials not before us.”).

And I invite attention to Footnote 1 of the brief:

U.S. Attorneys are not the only Executive Branch prosecutors the Judiciary appoints. Historically, they have (on application) appointed independent counsel. 28 U.S.C. § 593; Morrison v. Olson, 487 U.S. 654, 676 (1988) (“[W]e do not think it impermissible for Congress Case 2:26-cv-02566 Document 8 Filed 07/21/26 Page 11 of 32 to vest the power to appoint independent counsel in a specially created federal court.”). They likewise appoint special prosecutors pursuing criminal contempt. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 793 (1987) (“[I]t is long settled that courts possess inherent authority to initiate contempt proceedings for disobedience to their orders, authority which necessarily encompasses the ability to appoint a private attorney to prosecute the contempt.”); see also United States v. Donziger, 38 F.4th 290, 294 (2d Cir. 2022) (appointment of special counsel by court did not violate separation of powers).

Yes, about that. Morrison is not long for this world. The Second Circuit’s ruling in Donziger was flawed. If Justice Gorsuch and Steve Vladeck are in agreement, they cannot both be wrong! And I challenge Judge Boasberg to appoint a private attorney to prosecute DOJ officials. That would merit a sharp rebuke from the bench.

Federal judges ought not to be the ones making appointments to the executive branch—particularly United States Attorneys who can be removed only by the President. Moreover, I remain unconvinced that U.S. Attorneys constitute truly “inferior” officers. Lower courts have reached that conclusion with rather cursory reasoning, but the Supreme Court has yet to settle the question definitively.

If a dispute between the executive and legislative branches arises, it should not fall on the judiciary to resolve it.

I would expect the judges of this District Court to recuse themselves, allowing another well-meaning Washington jurist to rule against Trump. And the Ninth Circuit would issue a decision that ought to be reversed.

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