Roger Rogoff is not a household name, and until this summer he had no reason to be. He is a Seattle lawyer who spent years as a King County Superior Court judge after Washington Governor Jay Inslee, a Democrat, appointed him to the bench, and Inslee later picked him again to build the state’s new office of independent investigations, which reviews police use of deadly force. On July 15 of this year, the federal judges of the Western District of Washington voted unanimously to make him the top federal prosecutor for the region covering Seattle and Tacoma. Roughly fifty-four minutes after he was sworn in, an email from the Trump administration informed him that he was fired.
The judges were not acting outside the law when they hired him. Federal law, at 28 U.S.C. § 546, allows the judges of a district to fill a United States attorney position when the seat has sat empty and the president has not sent a nominee through the Senate. The Seattle office qualified easily, because it had been without a Senate-confirmed U.S. attorney since Nicholas Brown resigned in June 2023, and neither the Biden administration nor the Trump administration finished the job of replacing him.
What happened to Rogoff is not an isolated personnel dispute in one city. It is one more result of a two-year collapse in the way this country decides who is allowed to bring criminal charges in the name of the United States, and that collapse is now producing dismissed prosecutions, disqualified prosecutors, and offices run by people no elected body ever approved. Many voters may be under the impression that the November midterm elections will begin to repair this. They will not. Even if Democrats win control of the Senate by a seat or two in January, the same paralysis will continue under new management, because nothing about a change in the majority forces this president to nominate prosecutors the Senate will confirm, and nothing about it removes the workarounds his Justice Department has already put in place.
The record on how far this has gone is now written into court opinions. A federal judge in New Jersey ruled earlier this year that the administration had installed three separate prosecutors to run that state’s U.S. attorney’s office without Senate confirmation, and the judge warned that thousands of pending federal criminal cases could be put at risk as a result. The Ninth Circuit Court of Appeals, in a decision issued Monday and reported by The New York Times, rejected a similar arrangement in Nevada, holding that the Attorney General cannot hand the full powers of a U.S. attorney to someone who never faced a Senate vote. That ruling followed a nearly identical decision by the Third Circuit Court of Appeals involving Alina Habba, a former personal attorney for President Trump who had been leading the New Jersey office beyond the term the law allowed.
Both parties in the Senate helped build this hole. Senate Republicans, under Judiciary Committee Chairman Chuck Grassley, have kept in place a century-old committee custom called the blue slip, which allows a nominee’s two home-state senators to stop a confirmation from moving simply by declining to return a signed form. Senate Democrats have used that custom to freeze the president’s picks in states such as New Jersey and Virginia, and they separately placed a blanket hold on the administration’s U.S. attorney nominees, which forces each one onto a slow floor process instead of the quick voice votes that used to clear routine appointments. Neither side is prepared to give up the leverage, and neither side has paid a political price for refusing.
The damage here is severe, and it is landing on ordinary criminal cases brought against ordinary defendants. There are 93 U.S. attorney’s offices across the country, and a Politico analysis found that nine to ten of them are being run indefinitely by a deputy who never received a Senate vote. That is roughly one in ten federal prosecution offices in the United States operating without a lawful leader, which is not a simple rounding error in a system that handles tens of thousands of cases a year. In several offices, the administration has sought to maintain its preferred prosecutor’s authority by redesignating that person as ‘first assistant’ after the statutory interim term expired. In New Mexico, defense attorneys have filed motions in nineteen separate criminal cases arguing that the prosecutor who charged their clients never held legal authority to do it. Prosecutions connected to former FBI Director James Comey and New York Attorney General Letitia James were thrown out after courts found that the prosecutor overseeing them had blown past the 120-day limit Congress set for temporary appointments. When a defendant’s best argument is no longer about the evidence but about whether the person who signed the indictment was legally allowed to sign anything, the justice system has stopped doing its job.
Some readers will argue that a Democratic Senate would still be a real improvement, so let us walk through what that would actually look like. A Democratic majority would put a Democrat in the Judiciary Committee chair, and that chair decides which nominees get a hearing at all. Democrats could deny consent to procedural shortcuts and refuse to advance nominees they consider unqualified. Every one of those powers is a power to stop something, and none of them is the power to put a confirmed prosecutor into an empty office. Nothing in the president’s conduct over the past two years suggests he would answer a Democratic committee by sending up candidates capable of winning bipartisan support, and he would not have to, because the same 120-day statute would still be on the books, the same court-appointed fallback would still exist, and the same incentive to run these offices through temporary designations would still be sitting on his desk. What November can deliver is a new set of hands on the same locked door.
That is the realistic reading of where this is headed, and it is exactly the kind of problem the two established parties are structurally unable to solve, because each of them now benefits from the other’s obstruction. Neither party has offered a plan to fill these offices, because filling them would mean giving up the fight.
The confirmation process for U.S. attorneys exists so that the people who can indict a citizen answer to the elected representatives of that citizen, and not only to the administration that happens to hold the executive branch. The repair cannot be a change in who wins the obstruction contest. It has to be a Senate that holds actual votes on actual nominees, and a president who sends up prosecutors capable of surviving those votes.
Roger Rogoff is still waiting for a federal judge to decide whether he can walk back into an office he held for less than an hour, and the Supreme Court is expected to decide whether the practice that removed him can continue at all. Neither of those outcomes depends on which party controls the Senate next year, and that is the measure of how far this has slipped.
A country can survive politicians who dislike each other. It cannot survive very long as a nation of laws if the people who enforce those laws hold their offices at the pleasure of a workaround, and if the citizens they charge cannot be sure the charges were ever lawfully brought.
The deeper failure, then, is not simply a vacancy statute or a Senate custom. It is a political culture that increasingly treats every procedural tool as legitimate so long as it disadvantages the other side.
None of this had to happen. Our two parties have operated from the beginning without ever defining a clear set of values to guide how they behave, how they govern, and how they protect our republic. The Centercratic Party was built the other way around, on nine principles that do not move with the election calendar. The first of them requires governing through compromise rather than domination, rejecting the extreme tactics pushed by special interests, and defending the Constitution for every American rather than only for the ones who voted for the party in power. Had either existing party held itself to that standard, Seattle would have a confirmed federal prosecutor today, and Roger Rogoff would be a name that nobody ever had reason to learn.