Among the various shenanigans employed by the Trump administration to circumvent the law is the firing of United States Attorneys appointed by the judges of a district after the 120-day period of an interim appointee lapsed without Senate confirmation of the interim appointee or anyone else to the position. When that happens, 28 U.S.C. § 546(d) kicks in, authorizing the judges to appoint the United States Attorney.

Trump hasn’t taken the law well.

What is happening is that Trump names someone to the position, the clock runs out, the judges replace the prosecutor with their own selection, and within minutes to hours, Trump fires the court-appointed prosecutor.

It took nearly five hours for Trump to fire Donald Kinsella less than five hours after he was appointed to replace Trump’s unconfirmed appointee (and former personal lawyer) John Sarcone. Roger Rogoff, who was appointed by the court to replace Trump’s past-their-expiration-date personal selection for the Washington (state) US Attorney post, was fired only 54 minutes into his judicial appointment.

For the most part, the court-appointed United States Attorneys have walked away from the firings. Roger Rogoff was not so inclined and sued for wrongful termination. Eastern District of Washington Judge Stanley Bastian, sitting because the judges of the Western District who appointed Rogoff recused themselves, caught the case. It did not go well for Trump.

Section 541(a) states the vacancy can be filled first by the President subject to Senate confirmation. Section 546 provides that absent the nomination/confirmation process, the Department Head (Attorney General) can fill the vacant position for a limited period of time. § 546(a),(c). Once that time expires, the District Court may appoint a U.S. Attorney until that vacancy is filled. It does not say until that person is fired by the President. § 546(d).

The gambit of naming an interim US Attorney, and upon expiration of the 120-day term without Senate confirmation, whether because the Senate refused to confirm, failed to act or because Trump failed to forward the nomination to the Senate for confirmation, the next phase of the ploy was to fire the person named according to law by the district judges and rebrand the interim United States Attorney as first assistant. Under the law, if there is no United States Attorney, the first assistant assumes the duties. By firing the court-appointed US Attorney, Trump argues that the position is unfilled, thus making his rebranded first assistant the acting United States Attorneys. Laws, shmaws.

Rogoff’s refusal to walk away, however, raised the novel question of whether the president has the lawful authority to fire a United States Attorney appointed by the district judges. It’s novel, of course, because no president had ever done such a thing before.

Judge Stanley Bastian’s order reinstates Rogoff and forbids Trump or the DOJ from firing him (again) until this case is entirely resolved. The answer Trump doesn’t want to hear is that nothing in the law allows him to fire anyone but his own appointees.

Can the President fire a court-appointed U.S. Attorney? No. The President cannot unilaterally fire a U.S. Attorney appointed by the Court. A court-appointed U.S. Attorney is not an acting U.S. Attorney nor are they an interim U.S. Attorney. Section 546(d) provides that a court-appointed U.S. Attorney serves until “the vacancy is filled,” which can only be done by the nomination/confirmation process.

Of course, the argument is that United States Attorneys are political appointees, and should therefore be anyone whom the president chooses, or more to the point, not someone the judges choose. As a general proposition, there is merit to the contention that the president is generally entitled to the political appointees of his choosing. After all, he is the president and gets to appoint the people he believes will further his political agenda.

The problem is that the office requires Senate confirmation as a constitutional matter. It’s not that Trump can’t nominate a person of his choosing, but that he either failed to do so or can’t find a person sufficiently unseemly that they can be confirmed by a Republican-majority Senate.

As the position of United States Attorney needs to be filled one way or another, Congress crafted a Plan B when the president finds it too difficult to appoint someone in accordance with law, putting the matter into the hands of the district judges. Much as this may also emit a dubious odor, given the separation of powers problems of having the judges who are responsible for ruling on the law appointing the person charged with being an advocate before them, it’s nonetheless the process Congress came up with.

Section § 546(d) provides “a sensible framework that tends to prevent the passage of lengthy periods of time without a United States Attorney in place.” United States v. Hilario, 218 F.3d 19, 23 (1st Cir. 2000) (“Congress may well have determined that it would be worse for a district to be without a United States Attorney than for the district to have one who had not been nominated and confirmed in the ordinary course.”)

But does this not conflict with the president’s authority to fire any executive branch employee of his choosing?

Allowing the President to fire a court-appointed U.S. Attorney would upend the framework created by the Constitution and the statutory framework, which together balances the President’s right to appoint and the Senate’s right to confirm. Allowing the President to fire a court-appointed U.S. Attorney also eliminates the incentive to nominate a candidate that can be conferred by the Senate—in other words, bypassing the requirement that the Executive and Legislative branches work together to nominate and confirm the U.S. Attorney.

Something has to give here. Either the constitutional mandate of senatorial advice and consent is undermined, or the president’s authority to fire executive branch employees is proscribed. Given Trump’s difficulties in following laws that would avoid the problem arising, together with his perpetually imaginative use of executive authority to circumvent laws that get in his way, it’s a problem of Trump’s own making. He can fix it easily enough by nominating a qualified United States Attorney, preferably one with experience other than representing Trump, and getting the Senate to confirm. He just can’t circumvent it by firing the court-appointed United States Attorney when he can’t manage to get the Senate to confirm his appointees.