The Volokh Conspiracy
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[UPDATE at end]
Today brings word that President Trump, having summarily disposed of a number of pesky Inspectors General who had the temerity to do their jobs, has now had enough of his own appointment to the position of US Attorney for the SDNY, Geoffrey Berman. Berman, AG William Barr tells us, is "stepping down" (having done "an excellent job"), to be replaced by Jay Clayton of the SEC.
No reasons have been given for the removal; apparently, Berman himself got no word of it until Barr's press release appeared. Surely Trump and Barr are not motivated by a desire to suppress Berman's on-going investigation of Rudy Giuliani, nor is the removal connected in any way with the charge, newly-revealed in John Bolton's forthcoming book, that Trump offered to get SDNY prosecutors to drop their investigation of a Turkish bank (Halkbank) at the request of Turkish president Erdogan.
Putting aside questions about the president's motives for the firing, and the the possibility that it's more than his usual mafioso stuff and might actually constitute obstruction of justice, one might think, at least as far as Geoffrey Berman is concerned, that that's that. The president hires, the president fires.
But not so fast. Berman says that he's not going anywhere.
Here's his position. He was named to the US Attorney position by then-AG Sessions in January 2018, to succeed Preet Bahrara (whom Trump had just fired). For some reason, though, Berman's name was never formally put forward for required Senate confirmation.
So in April 2018 the federal district court judges voted unanimously to appoint him to the job.
My first reaction, when I read about this, was: What?!?! Federal judges appointing Officers of the United States? Can they really do that? I felt a little bit like I had just found out that Mike Pompeo, say, hadn't ever actually been confirmed by the Senate, but had been appointed by the Supreme Court to be Secretary of State.
It turns out that they can really do that—or at least, they have been given the express authorization by statute to do that. 28 USC 546 reads:
Vacancies.(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.(c) A person appointed as United States attorney under this section may serve until the earlier of—(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or(2) the expiration of 120 days after appointment by the Attorney General under this section.(d) If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
Berman was appointed under 546(d); his original appointment was coming to the end of its 120-day lifespan (under sec. (c)(2)), so the court exercised its authority to appoint him to the position "to serve until the vacancy is filled."
So Berman now says: I don't serve at the president's pleasure, like the ordinary US Attorney, because the president didn't appoint me—the judges did. The appointment lasts until "the vacancy is filled." That can't happen until a presidential nominee to the position has been confirmed by the Senate.
It's not enough for the AG to appoint a temporary successor (Barr has purported to name Jay Clayton of the SEC to the position) and to say: "There—your appointment has ended because 'the vacancy is filled'. Clean out your desk and begone." That won't work because the statute gives the AG the authority to appoint a temporary US Attorney only where "the office of United States attorney is vacant." But the office of US Attorney for the SDNY is currently not vacant—Berman is in it, duly appointed by the court.
Whether Trump and Barr want to submit Clayton's name for Senate confirmation is an open question. But until they do so, Berman's the US Attorney for the SDNY.
Chaos and dysfunction are likely to prevail in the office unless Trump/Barr back off. My guess is that if both Berman and Clayton show up on Monday morning, the staff of the office will continue to take their orders from Berman. Perhaps we'll find out. In any event, it's another small milestone in the war on the federal prosecutors and the federal judiciary.
[UPDATE 6-20-20 4:15 PM EDT: Several readers have called my attention to the 10th Circuit case of US v. Hilario, where the court upheld the constitutionality of sec 546(d) against a separation-of-powers challenge. The court in Hilario supported its judgment by noting that:
[W]e do not believe that section 546(d), by giving courts the option of naming an interim United States Attorney to avoid a vacancy, undermines public confidence in the disinterestedness of the Judicial Branch. The judiciary's integrity is not affected, and the method of appointment does not violate the doctrine of separated powers….
Here, the power to appoint is tempered in ways that ensure the appointee's independence. In this regard, we deem it especially significant that section 546(d) neither grants the judges of the district court authority to supervise or remove an interim United States Attorney whom they have appointed nor gives them power to determine (or even influence) how the appointee will enforce the laws. Cf. Morrison, 487 U.S. at 681, 108 S.Ct. 2597 (emphasizing appointing judges' lack of supervisory authority). Under those circumstances, it is unreasonable to think that merely making an interim appointment impermissibly entangles judges in the functioning of the Executive Branch.
This is particularly so because, insofar as interim United States Attorneys are concerned, the Executive Branch holds all the trump cards. For one thing, the President may override the judges' decision and remove an interim United States Attorney. See 28 U.S.C. § 541(c). For another thing, the President retains the right to nominate a United States Attorney whose confirmation by the Senate automatically will oust the interim appointee. See id. § 546(d). Even short of presidential involvement, the Attorney General can shunt the interim appointee to one side on any given investigation or case. See id. § 518. These features make it crystal clear that the district court's appointment of an interim United States Attorney is not an unconstitutional encroachment on executive authority.
Putting aside that the constitutional question, to my eyes, remains problematic—a holding that the appointment of a prosecutor who will be responsible for arguing cases before the district court by the judges before whom he/she will be appearing does not "undermine public confidence in the disinterestedness of the Judicial Branch" strikes me as questionable—the case does highlight a weakness in Berman's argument that I had not adequately considered in the O.P. If sec. 541(c)'s removal power in fact trumps sec. 546(d)'s command that a judge-appointed US Attorney serves "until the vacancy is filled," President Trump (who has not, to my knowledge, himself taken any action in the matter) can remove Berman from his position, which creates a new vacancy, which can then be filled on a temporary basis by the Attorney General.
If, however, sec. 546(d) trumps sec. 541(c), and the president's removal power is qualified by the requirement that a judge-appointed US Attorney must serve until the president fills the vacancy (via the appointment/confirmation process), Berman's argument (that he is entitled to continue in office until that occurs) is correspondingly stronger.