Seattle Bar Readies to Confront Trump on Next US Attorney Firing

The Trump administration’s escalating confrontation with judges over US attorney appointments is next bound for an entirely Biden-selected trial court in Seattle, where lawyers want whomever is picked as chief prosecutor to fight back against their almost certain dismissal.

The Western District of Washington’s chief judge is seeking applicants to replace the Justice Department’s term-expired interim choice to lead the Seattle-based federal prosecution office, citing the lack of a presidential nominee. That follows a similar model as in other districts whose court-appointed US attorneys were instantly terminated by the White House.

Several former high-ranking Western Washington prosecutors said there are growing calls for the Seattle judges’ pick to contest their termination by filing a novel lawsuit seeking to restore the appointment.

“The candidate who is fired is in a position to file an action to essentially enforce the order of the court,” said Mike McKay, who was the George H. W. Bush-appointed US attorney in Seattle. “I think that would be the way to go.”

Even if successful, the fight would only be getting started. Any top prosecutor re-inserted against the administration’s will would have to face off against a DOJ headquarters with the ability to wreak havoc on the Pacific Northwest district’s operations.

“It would probably only be worth the battle as a matter of principle,” said Mark Yancey, a former acting US attorney in Oklahoma City who led DOJ’s training academy for prosecutors. “But even if you win that battle, have you lost the war if you’re in office and have an unsupportive department who could make your life miserable?”

That’s a risk that multiple veteran federal prosecutors said would be worth taking in Seattle and elsewhere to reassert the judiciary’s status as a co-equal branch and protect the reputation of US attorneys’ offices from what they criticize as unqualified Trump loyalists.

Three alumni of the Seattle US attorney’s office said the trial court—whose seven active district judges were all appointed by President Joe Biden—has been reaching out to prominent lawyers in the area to find a well-credentialed US attorney candidate ahead of the court’s preferred March 16 application deadline.

Two of those office veterans, who like others spoke anonymously about private conversations, said Seattle-area lawyers—including people communicating with the judiciary about the selection—have strategized about the need for the court to select someone willing to sue Trump if and when they’re fired. They’re discussing the need for a more aggressive tack than in other districts whose ousted court appointees have yet to litigate.

The likely legal theory is that under the statute authorizing courts to fill US attorney vacancies, only the judiciary is entitled to remove its selection.

One name floated by a few lawyers as a plausible contender is John McKay, a onetime Seattle US attorney who was among eight chief prosecutors fired by the George W. Bush administration in 2006. McKay, who’s been an outspoken opponent of the Trump DOJ, declined to comment about the appointment.

Mike McKay, his older brother and fellow GOP-appointed chief prosecutor, also declined to comment about whether John McKay is in the running. But the elder McKay, who noted he hasn’t talked to judges about their selection, said he expects other court appointees President Donald Trump swiftly fired this month in Eastern Virginia and Northern New York “are informing our local court on how to move forward.”

The administration installed an interim US attorney for Seattle, former immigration judge Charles Neil Floyd, last October. But he’s since been downgraded to “first assistant” while still heading the office, after surpassing his 120-day term. The judges opted against appointing him after 120 days, and Washington’s senior Sen. Patty Murray (D), has said she’d block Floyd if Trump were to nominate him.

In a statement to Bloomberg Law, Murray said it would be “unacceptable” if the Trump administration fired the court’s upcoming pick “without cause,” and that Trump has been “hellbent on installing sycophants” at DOJ.

A DOJ spokesperson and a representative for the district’s Chief Judge David G. Estudillo each declined to comment.

Limited Pool

The Virginia and New York courts both appointed seasoned members of the defense bar for US attorney posts, who were fired by Deputy Attorney General Todd Blanche the same day. In both instances Blanche wrote on X that Trump picks US attorneys, not judges.

Former US attorneys said a surefire public firing shrinks the candidate pool for a traditionally highly coveted job. That leaves retirees, law professors, or people in small law practices nearing the end of their careers as the more likely contenders. Finding someone willing to take up a legal dispute with the Trump administration further narrows the list.

Still, Jenny Durkan, the Barack Obama-appointed US attorney in Western Washington who went on to become Seattle’s mayor, said the bench will have no problem finding qualified applicants. The court won’t prejudge the selection process or “consider political factors,” she said.

In New Jersey, lawyers recently teed up arguments with relevance for Seattle in a little-noticed motion. They asked the court to dismiss indictments against their clients on the grounds that Desiree Grace, whom Trump fired as the court-appointed US attorney in New Jersey last July, remains the lawful top prosecutor.

Laura Gasiorowski, who filed the dismissal motion, said it’s critical to prevent a president from ignoring the Senate confirmation process for prosecutors.

“Somebody could and should litigate it. I think this is an incredibly important decision,” Gasiorowski said. “But I could understand why no fired US attorney wants to be the person to bring that.”