DOJ Should Not Let Chief Justice Roberts Decide Anything Concerning the SDNY U.S. Attorney

Generally DOJ is eager to appeal anything, and everything to the Supreme Court. Not during Blue June.

|The Volokh Conspiracy |

For a generation, legal conservatives have waged a war on Morrison v. Olson. Justice Scalia's dissent is part of our canon. The conventional wisdom was that all of the conservative Justices, if given the chance, would agree with Justice Scalia. Not now. Not during Blue June. Chief Justice has turned this term into a one-man mission: do everything he thinks necessary to save the Supreme Court.

The Department of Justice should tread very carefully with SDNY U.S. Attorney Geoffrey Berman. (Charlie Savage wrote a helpful explainer). The lower courts may rule that his removal–actual or de facto–by Barr is unconstitutional. The lower courts my also rule that Berman's firing by Trump is unconstitutional. And the courts also may conclude that neither Barr nor Trump can appoint Berman's replacement.

If so, the usual move would be to appeal the case to the Supreme Court. Savage writes:

But if potential litigation over the issue were to go all the way to the Supreme Court, a majority of the justices are Republican appointees steeped in a conservative ideology of White House power that includes a robust view of the president's ability to remove officials.

No. Not now. Chief Justice Roberts would be willing to give up the chance of narrowing Morrison, for the sake of saving the Supreme Court. He'll do the opposite, and limit presidential power. And in the process, he will no doubt adopt a cramped, ambiguous reading of Article II that will hamstring the executive branch for generations.

Alas, to use the phrase of the day, this horse may already be out of the barn. DOJ is headed on a kamikaze mission to the Chief. And Barr's successor will have to pick up the pieces.

NEXT: Judge Royce Lamberth Condemns John Bolton's Conduct, But Declines to Block Publication of Bolton's Memoir

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  1. Why is Barr doing this? And why now?

    90% of an iceberg is below the surface.

    1. Barr is doing this now because Berman’s office was probably sniffing too close to Trump associates and too close to uncovering yet another embarrassing criminal conspiracy within Trump’s orbit (perhaps involving Trump himself). That’s the only way to understand their taking such a risky move so close to the election.

      “Conservative legal scholars” like Josh here apparently believe the President should be able to shield himself and his co-conspirators in this fashion.

      1. SimonP — You do realize that they can just email the whole thing over to the State and let Vance prosecute it.

        1. Assuming (as seems likely) that the investigation includes grand jury material, they would need permission of the court to release it to state or local law enforcement.

          1. To do it legally….

            1. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new. ASd after 4 years it was so hard to quit my day job but now I couldn’t be happier.

              Here’s what I do… Click here

    2. Fair question.
      1. Barr is a whore. A moral and ethical whore.
      2. The timing is baffling to me as well. If you’re gonna whore your principles, then do it before the guy can get going on investigating the president’s lickspittles who have committed criminal acts.
      3. Maybe Berman’s investigators have turned up something (and Barr or Trump recently got a heads-up about it), and this is a last-ditch attempt to bury evidence of the 1,000th bad act done by the president or on the president’s behalf?
      4. Barr is a whore. This bears repeating.

      1. OK. And you are the USA whom he is firing because of what you know. Why don’t you just hold a press conference. Or invite the cute woman in the NY State AG office or local DAO out for drinks and “accidentally” drop a flash drive into her purse.

        When you look at what they did for Crossfire Hurricane, if they actually HAD anything — or thought they might — there is a willing media and a willing NY State that’d both love to do something with it.

      2. The timing is baffling to me as well. If you’re gonna whore your principles,

        When the facts baffle you, it’s usually because your assumptions and/or reasoning are wrong.

    3. Dr. Ed : Why is Barr doing this?

      William Barr or some some women standing on a street corner waving the cars in, wearing lycra hot-pants, push-up bra and towering heels……

      Which one is more obviously a whore?

      William Barr – easily

  2. After being Chief Justice and on the Court for fifteen years, I think we can finally describe Robert’s jurisprudence: do whatever it takes to preserve and defend the SCOTUS from all enemies, foreign and domestic.

    1. Nicely put. Although I disagree with many of his rulings (esp re the Voting Rights Act–I think Shelby v Holder will be seen, in the future, as the low point of the Roberts court), Roberts’ lodestar has always seemed to be ensuring the neutrality and independence of the third branch of government. Not the worst legacy to have. . . .

      1. Except that’s not his job. The oath he swore is altogether different.

        1. Wait. You think Scalia, and Thomas, and Holmes were not guided by their own guiding principles? Like all humans are? That beggars belief. Of course, you don’t throw out the law in pursuit of those principles. But I don’t think Roberts, Thomas, et al are doing/were doing that. Certainly not consciously.

          1. The problem with Robert’s is that he does, often, try to narrow down rightful opinions so that the court can decide the case on absurdly narrow grounds.

            Roberts fully believed in the backers position in Masterpiece Cakeshop. But in an effort to narrow the opinion, he held that it only applies to wedding cakes due to religious animosity … which is absurd. And then he refuses to actually give the religious animosity argument any weight in Trump vs Hawaii.

            Trinity Lutheran Church should have been uncontroversial, but yet he narrowed the opinion down to just resurfacing playgrounds. Again that is nonsensical. And this is a fairly recent phenomenon as well.

            The tax argument in Obamacare was ridiculous. If you are going to agree with the conservative view, then do it. Otherwise don’t. Don’t do the I agree but I don’t like the implications of my agreement so I’ll bend over backwards to save it.

            In trying to save the legitimacy of the court he is failing to actually do his job, to provide guidance to lower courts with sound legal arguments.

          2. Wait. You think Scalia, and Thomas, and Holmes were not guided by their own guiding principles?

            Of course they are. It’s the nature of each judges’ principles that we are discussing. Some guiding principles are laudable and desirable, while others are destructive and reprehensible.

  3. I think it’s wrong to try to connect today’s authoritarian-right movement with Scalia’s jurisprudence. He may have written an opinion you aspire to expand upon, Josh, but underlying his jurisprudence is a confidence that the people in power would “do the right thing.” I am skeptical that judges and justices from the past would have written quite so enthusiastically about the unitary executive if they had clearly seen or anticipated a lying scoundrel, cheat, and traitor like Trump at the top.

    Roberts sees the changing facts and is trying to preserve a functioning republic. Enterprising sycophants like yourself are burnishing your CVs for the hoped-for “new order.”

    1. “anticipated a lying scoundrel, cheat, and traitor like Trump at the top”

      As opposed to “Landslide” Lyndon Johnson?!?

    2. Lol this dude is so old and angry. Dude just get pussy and be less mad.

    3. I think it’s wrong to try to connect today’s authoritarian-right movement with Scalia’s jurisprudence

      Yeah, those “right wing authoritarians” who believe in freedom of association, private property, and free speech. As opposed to those “liberals” who reject all of those principles.

  4. DOJ should just transfer all cases and reassign all staff to their designated guy.

    Berman can make his claims with no cases and no staff and no budget.

  5. An acute case of Epstein – Barr.

  6. I can’t see the case being made for this being right. Even when Nixon fired the prosecutor it caused an uproar. All that needed to be done was for trump to send a nomination to the Senate for the position. If the senate had confirmed the nomination, the SDNY attorney would have been replaced. Why in the hell must they always do everything so incompetently. This reminds me of DACA and the Citizenship Question.

    1. “Why in the hell must they always do everything so incompetently[?]”

      They’re disaffected misfits.

      They’re unqualified hacks.

      They’re result-driven crusaders.

      They’re poorly advised losers.

      They’re desperate, disaffected bigots.

      They work in revolving doors rather than offices.

      They report to, strive to flatter, and fear an uninformed, reckless, lurching, vainglorious fool.

      1. They’re unqualified hacks.

        Better an unqualified hack that a skilled and powerful dictator.

        They’re desperate, disaffected bigots.

        No, that’s you.

    2. Has it occurred to anyone that Trump may believe the Executive is too powerful, that the legislature has abrogated too much of it’s responsibilities and authority to the executive? As a not professional politician / non-lawyer, it may offend his sense of how things should work? That by using the easily anticipated, knee jerk reactions of both the judiciary (and to a lesser extent congress), he is forcing them to restore the proper balance? (Much as he did during the pandemic lock downs, getting all the states and cities to emphatically claim “You aren’t the supervisor of me! We decide when to close and when to open!!!!” (To which he said, ‘Good on ya’).

      How many of the executive branch set backs has Trump actually pushed forward on legislative workarounds? Almost like, he really didn’t care about most of them …

      1. Your argument is that Trump is a Reagan-level mastermind?

        1. No, but that viewing every action as a win lose decision, versus advancing a particular principle can lead to winning battles and losing the war. Overall, trump has won the “wars”, even as it appears he is always done, over, walls closed in.

          Not saying he is playing n-dimensional chess. But his actions may have different payoffs that he chooses to use. Roughly speaking, making a play with a positive expectation over a number of outcomes may be a better bet that a binary win big, lose big play.

          1. I agree that Trump has been “winning” in the sense that he has had the opportunity to act as president and derived as much “payoff” as he wanted from that — the ego rush, the subservience, the pomp, the power to belittle and bully.

            His supporters? They are going to wish they had never heard of Donald Trump. Their betters will see to that.

            1. Given the state of the the Democrat party on Nov 8 2016, I’m sure the same could be said about Obama (Or Clinton). Or the Bushes. Or LBJ. Or Nixon. Or Carter. There is nothing really unique about trump or this situation.

              1. You can say many things about Hillary Clinton, but being lazy and stupid are not among them. I doubt that anyone you mentioned is as sloppy and ill prepared as is this President. What is amazing is that his subordinates are just as sloppy. You would think he would be able to get competent people to do the work he is unwilling to do.

        2. That insight is something that it doesn’t require more than average intelligence. (I’m sorry it’s beyond you, though.)

          Oh, and thanks for illustrating again how bigots like you have always hated on Republicans.

      2. Um no, that has not occurred to me.

      3. Which wars has Trump won, in your view?

    3. Why in the hell must they always do everything so incompetently.

      Because they are incompetent, and their incompetence is made worse by their arrogance. They think they know everything, and Trump doesn’t understand that he can’t just do whatever he feels like, just on a whim.

      1. Because they are incompetent, and their incompetence is made worse by their arrogance.

        Well, what a surprise: a political outside who believes in smaller government isn’t competent at manipulating political machineries and the media! What other stunning insights can we expect from you?

        I prefer an incompetent (actual) liberal to a competent authoritarian any day.

        1. I didn’t suggest it was a great insight.

          Rather, the implication of my comment was that Trump’s incompetence is obvious, and is obviously one big reason he does things incompetently. IOW, I agree with you that the question is not difficult.

    4. Cox was a SPECIAL Prosecutor….
      Big Difference.

    5. You can’t see the case being made that the president has the authority to remove subordinate federal prosecutors?

      I can understand how someone could accept the argument that the president doesn’t have that power, however unpersuasive it seems to me. But you really think not only that it’s right, but that it’s so obviously right you don’t understand how people could disagree with you?

    6. I can’t see the case being made for this being right.

      By default, Trump clearly has the right to hire and fire prosecutors for any reason or no reason at all. Yes, that includes firing a prosecutor who is going after his associates. If Congress doesn’t like it, they can impeach. That’s the way the system is supposed to work.

      The only justification for protecting this prosecutor is a legal technicality.

  7. Prof. Blackman sounds more and more like someone who believed conservatives were going to stop getting stomped in the American culture war (let alone turn the half-century tide of American progress and arrange the Republican platform of intolerance and backwardness).

    Life as a culture war casualty appears to be turning him into a disaffected, disoriented mess. One shudders at the prospect of how a few more decades of this will influence his grip on the reality-based world.

    He already has lost the perspective that would enable him to recognize the political trends that indicate conservatives — especially old-timey movement conservatives — should be careful about championing executive authority in a modern America whose electorate is becoming increasingly inhospitable to clingers.

    1. Conservatives are not only getting stomped in the culture war, they’re getting beaten and murdered too.

    2. He already has lost the perspective that would enable him to recognize the political trends that indicate conservatives — especially old-timey movement conservatives — should be careful about championing executive authority in a modern America whose electorate is becoming increasingly inhospitable to clingers.

      Well, as a former member of the progressive, multicultural coalition, I’d say: don’t bet on the electorate going that way. Turns out, trying to appeal simultaneously to GWMs, lesbians, homophobic Muslims, transsexuals, wealthy techies, socialists, and welfare queens is tricky, and Democrats haven’t figured out how. Turns out that when your political strategy relies on dividing up the electorate into victim classes and identity groups, those groups end up not liking each other.

  8. From the DoJ perspective you are right, but I am just peachy with less presidential power. Congress has given away too much power.

    1. Be that as it may, exercising control over the officers of the executive branch (particularly those who are exercising core executive powers) seems like a pretty quintessential executive function that can’t be divested from the president. And creating an executive officer whose core job function is to put people in federal prison who is unaccountable to anyone seems like a pretty concerning development for those interested in individual liberty.

      1. True. But in this case there is solid and legitimate disagreement since the prez did not appoint him, the judges did. Also, as we have seen, blanket power to dismiss people means he can block embarrassing investigations. That is too much power.

  9. “And in the process, he will no doubt adopt a cramped, ambiguous reading of Article II that will hamstring the executive branch for generations.”

    I have no idea why you think any of these precedents will survive the election of a President who isn’t Donald Trump.

    1. I would certainly like them to. The presidency, whether headed by a liberal or a conservative, has way too much power.

      1. It’s not the presidency that has too much power, it’s the executive branch as a whole. But you don’t decrease the power of the executive branch by disempowering the only part that’s actually accountable to voters.

  10. OK, let’s say Biden wins next term and takes over, which, imo, 99% chance he does.

    You want, in that scenario, an unbridled executive? Is this even conservative anymore, or is it Trump is always right? During the Obama years, heck even during the Bush years, conservatives and conservative judges were looking for all sorts of ways to limit executive authority, which the exception of commander in chief military power. And now it’s the opposite. Absolutely the supreme court should take the case.

    And furthermore, Morrison dissent isn’t just a conservative thing. It’s become established law, effectively, among all political ideologies. Republicans wanted it overturned with Bush, Trump Democrats with Clinton, Obama. So it doesn’t advantage any party in the long run, it is accepted because it is just right. Phrasing it as a conservative issue does immense damage to that credibility.

    Lastly, these cases are about some higher ups who got fired and are suing. Why should any of us actually care? How does the outcome in this case help advance conservative ideology? How does it advance liberal ideology? It advances Trump, but who gives a shit?

    I would argue a limited executive helps make everyone more free, so as a conservative, I welcome limitations. I don’t care who it is against.

    If liberals are so anti-Trump they are willing to resurrect the non delegation doctrine, that would be fantastic. They have already swore off the public sector unions they tried to defend in Janus. If liberal judges and pragmatic conservatives want to accidentally advance conservative ideology, let them. It beats losing in the other cases this week.

    Furthermore, Justice Kavanagh is a pioneer of unitary executive theory. Even if you do want an expansive executive, which again, careful what you wish for, I highly doubt Kavanagh can’t influence Robert’s over to his side.

    1. Exercising control over criminal prosecutions and litigation involving the US government is as essential to the executive power as serving as commander in chief. And the prospect of a federal prosecutor accountable to no one worries me far more than any alternative.

      1. I share your sentiment, but what we see today is an unaccountable President controlling a prosecutor – Barr.

        I don”t see how that’s better. Sure, you can argue that Trump is accountable to the voters, but he is accountable to them for a huge range of matters, of which this is a tiny fraction, so effectively there is no accountability.

        I don’t know how you would ever establish that.

        1. You think we should have prosecutors unmoored from the Executive Branch? Like all those lawmaking independent agencies?

          1. To the extent Berman was unmoored from the Executive Branch, it was Trump’s deliberate doing from the get-go. And had Trump cared at all about it before it occurred to him Berman appears to be investigating Trumpworld malfeasance, he could have nominated a permanent replacement at any time during Berman’s tenure.

          2. You think we should have prosecutors unmoored from the Executive Branch?

            Please read my comment before responding.

            I didn’t say that. I merely said that if the person the prosecutor is accountable to is corrupt then the accountability doesn’t help.

            Besides, I’m not convinced that

            Exercising control over criminal prosecutions and litigation involving the US government is as essential to the executive power as serving as commander in chief.

            There are places – democratic countries – where prosecutors are accountable to the courts, not the executive. I’m not claiming that’s better, or worse, just that it is an alternative.

    2. You want, in that scenario, an unbridled executive? Is this even conservative anymore, or is it Trump is always right?

      Why? What’s he going to do? Let in millions of illegals into the country? Impose massive new mandates? Impose massive new regulations? Oh, right, we already had that unbridled executive.

      I have no problem with a possible President Biden being able to fire any and all prosecutors for any reason or no reason at all.

  11. So Blackman is upset by the possibility that Berman’s investigations of his cronies, and maybe Trump himself, won’t be quashed?

    1. Likely an investigation of Berman’s cronies…

      1. Berman was investigating his own cronies?

  12. For what it’s worth, and notwithstanding Trump’s valiant efforts to throw a wrench into works at the last minute, Berman has announced that he is indeed leaving:

    https://www.justice.gov/usao-sdny/pr/statement-geoffrey-s-berman

  13. Just stop. Blue June will never be a thing outside your conspiratorial brain.

    Maybe take a vacation too. You’ve become insufferable. At least Stuart has the decency to limit his post count.

  14. UPDATE: Saturday evening. Berman agrees to leave.

    A real disappointment for me, and apparently based merely on Barr’s assurances that existing investigations will be able to continue without interference or obstruction.

    Something else must be going on . . . no one actually believes that Trump and/or Barr will not interfere if Trumps wants it done. Hard to believe that Berman would just accept Barr’s statement at face value. Really really odd.

    1. Something else IS going on….

    2. A real disappointment for me, and apparently based merely on Barr’s assurances that existing investigations will be able to continue without interference or obstruction.

      Perhaps he also agreed that the president did in fact have the authority to fire him?

      1. Perhaps, but unlikely. What was he told between yesterday and today that convinced him of this? One thinks that it’s an issue he would have thought about, and researched, extensively, no? Given that, it’s a really fast 180-degree turn.

    3. Lol why are your being so conspiratorial. Dude just get pussy and stop being so old and mad.

  15. It’s moot now, but of course DoJ had to plan to go to the Supreme Court. If Barr simply accepted Berman defying him and staying on, that would set a precedent for the rest of Trump’s administration. And it would be the worst of all precedents, since there is little chance that such defiance would get any traction the next time a Democrat wins the Presidency.

  16. Certainly not a fan of other Robert’s decisions recently, but… since when is limiting the power of the executive a bad thing. Hamstrung for decades? Yes please.

  17. “And in the process, he will no doubt adopt a cramped, ambiguous reading of Article II that will hamstring the executive branch for generations.”

    Generations? Hardly. Only as long as Trump is President. Future Democratic Presidents won’t have to contend with having their every move sent to court.

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