Who Can Fire the US Attorney for the Southern District of New York?

The answer may surprise you.


[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:

(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.


NEXT: Today in Supreme Court History: June 20, 1837

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Isn’t subsection (d) inconsistent with the separation of powers and should be voided (as the legislative veto was in INS v Chadha)?

    1. No. It’s explicitly authorized by the constitution.

      US constitution Article II section 2 clause 2.

      and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

      1. Ok thanks.
        An underused provision.

        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. Thanks for bringing that up, I’d forgotten about it too. I guess that still leaves the question of whether the President can fire such a person.

      3. US Attorneys are not inferior officers.

        1. How do you know that? Care to share some precedent?

          1. Marc Levine says so, and he was way up in Reagan’s DOJ.

            1. lol, Mark Levin, you mean? He’s incredibly partisan, so his analysis is hardly to be trusted.

              The courts have weighed in on this issue. United States v. Hilario says U.S. attorneys are “inferior officers” under the Constitution. I am going to go with an actual panel of Circuit Court judges rather than a radio talk show host who is unbelievably partisan in his rants.

      4. Interesting! I didn’t realize that. So in 1866 or so when Congress fought with President Johnson over whether he could fire Secy of War Stanton, Congress could just have vested Appointment of cabinet officers in a Court of Law that had majority Radical Republicans. Am I right that this is analogous?

        1. Only if you think the Secretary of War is an inferior officer, which seems doubtful. U.S. attorneys are overseen by the AG. To whom, other than the President himself, did the Secretary of War answer?

        2. No. The constitution does not define inferior officer, but the courts have. If they are directed or controlled in their work by anyone below the President is an inferior officer.

          The department heads and cabinet secretaries are the only ones who aren’t inferior officers.

    2. A different thought: what is preventing Barr from merely assuming the entire docket of SDNY and dealing with it remotely from DC?
      Everything is being filed electronically now anyway, and if they had to have someone with a NY Bar Card (would they for Federal Court?), I’m sure they could find a half dozen somewhere in the halls of DC.

      And if the USA for SDNY wants to stay, he can be assigned the duty of counting the sheets of paper in each ream of office paper. They still get paid, but have nothing to do.

      I wondered why Barr was in Boston on Thursday, meeting with the Police Commissioner seemed like an excuse. I’d be surprised if Berman wasn’t given a chance to go quietly.

      And I think that Obamagate is somehow involved here, Remember Trump lived in SDNY at the time, and that’s where the “bugged” offices were.

      1. Do you mean that you think Trump wants Clayton to be in a position to open an investigation on Obamagate? If so that would explain much of this, particularly if it turns out that Berman said he wouldn’t.

        1. Not open as much as not sabotage it.

          The investigation is already open — John Durham (USA-CT) is already working on it.

  2. Why do so many small, small men — Carpenito and Clayton appear to be recent examples, although a series of inspectors general and cabinet officers are more prominent in this paltry parade — willingly step over the desecrated corpses of hatcheted predecessors to serve in the Trump administration?

    Do conservatives figure they won’t get another chance to serve in a Republican administration for a long period? Are they mostly misfits who take a once-in-a-lifetime ticket, know they wouldn’t be welcome in any other administration, Republican or Democratic?
    Are they just lousy people? Do they not expect the stain of Trump service to shackle them for life? Are they too dumb to recognize that they will be humiliated, scarred, and tossed into the ditch soon enough?

    1. My take, Kirkland, is the exact opposite of yours — why is Trump hiring so many of these Swamp Creatures?

      They are professional prostitutes, what amazed me in 2017 was the number of anti-trump members of the MassGOP who went down to DC seeking jobs in the Trump Admin after having tried to defeat him….

      No, having helped the administrative state fight Trump will be a badge of honor, not a stain. Not unless we are talking Pence in 2024 because I doubt he’ll hire them.

    2. I have wondered this myself. It is particularly puzzling that about 18 months back there were news stories of dissatisfied Trump staffers finding out that “served in the Trump White House” turns out to be a negative on their resumes. They were having a hard time finding jobs outside the cult. You would think that would be a cautionary tale.

      It may be that at Clayton’s level the long-term thinking is that they can get wing-nut welfare at a surprising number of media organizations and think tanks after the hatchet git is up.

      After all Clayton is already in the cult so why not.

      1. Writing books and the college lecture circuit are both quite lucrative.

        Don’t feel sorry for the swampies…

        1. Do fourth-tier, nonsense-teaching, conservative-controlled colleges pay as much as legitimate educational institutions?

      2. Yes, it is precisely because they lack the experience, expertise, and general integrity to serve in a reputable administration at that level that they happily take a position with the implicit understanding that they will put Trump before duty. They will forever have the title and once they lose their position, they can parley that title and “experience” into OAN or Fox News commenting gigs, think tank positions, or other such vapid positions fit for a partisan hack. People like Dr. Ed (who people are saying is not an actual person) love this kind of “hero” and will lap up their drivel. (See Levin, Mark.)

    3. Outside of family, there are five categories of People Still Willing to Work for Trump:

      1) DIM & Disgraceful DISGRACEFUL (credit to Max Boot). People in way over their heads because they don’t have the qualifications, or intelligence, or both, for the level of job Trump gave them. Prime example: former White House Director of Communications/Press Secretary Stephanie Grisham (amazing what multiple DUI convictions and instances of being fired for cause will get you these days). Current DNI John Ratcliff is another.

      2) STRAIGHT GRIFTERS. Use Trump to extract money (or other future value) from the government and the public. Much of Trump’s Cabinet including the current Commerce and Treasury Secretaries; the former HHS and Interior Secretaries; and the former EPA Administrator. Also, any number of hangers-on to various Trump 2nd and 3rd-ring functionaries/family members.

      3) TRUE BELIEVERS. Obsessives with a holy mission. Stephen Miller (White Nationalism/Brown People Xenophobia); Bob Barr (Theocratic Authoritarian Police State); And, until he became disgusted with those administration weaklings who wouldn’t let him declare war, John Bolton (Global Domination).

      4) STONE-COLD TRANSACTIONALISTS. Use Trump to reach more long-desired objectives than possible with a normal President. Primary examples the EPA Director, Defense Secretary. Mitch McConnell is a demonstration of the type outside the Executive branch

      5) cULT OF TRUMP. Genetically pre-disposed to drink the Kool-Aid. Mostly lower-level and usually cross-bred with #1. DNI Ratcliffe fits here too. Matt Gaetz (Rep-Florida Man) would be perfect but even Trump won’t hire him.

      Some others are a mix of two or more (Cult Member/Grifter/Believer Education Secretary Betsy DeVos?). And former Acting White House Chief of Staff/Dead Man Walking Mick Mulvaney was a unique case—a combination of all four. There was also once a sixth category—ADULT DAY-CARE SUPERVISORS—but they’re all gone now (Mattis, Cohn, Tillerson, Kelly, McMasters).

      I don’t include career government professionals here—don’t blame people for hunkering down and trying to hold on to their careers, continually muttering ‘this too shall pass,’ while trying to do no harm and slow walk the worst things that come to their desks

      1. Yours is a brilliant taxonomy of the types of people willing to work for Trump.

  3. I think that despite the court’s appointment, the post is still vacant. If Berman only serves until the “vacancy is filled,” that means his service does not itself fill the vacancy, so it wouldn’t be correct to say that “the office of US Attorney for the SDNY is currently not vacant—Berman is in it, duly appointed by the court.” The court’s appoint, whatever it does, does not fill the vacancy, and whatever position he occupies is something distinct from it. The official post is vacant, and (now just guessing) if 546(d) is only triggered on the lapse 546(a) appointment, it may be the AG could just appoint again to reset the 120 clock.

    1. You think that, others think the opposite. Will be interesting to see played out.

    2. I don’t think that is right, given United States v. Hilario (1st Cir., 2000):

      The language of section 546(d) is direct and to the point.   In contrast to section 546(c)(2), which limits the Attorney General’s interim appointment to a maximum of 120 days, section 546(d) specifies that the court’s interim appointee shall “serve until the vacancy is filled.”   There is no limit on the duration of this service (other than the nomination and confirmation of a regular United States Attorney).   The absence of any temporal limit strikes us as deliberate, rather than serendipitous, especially in view of the contrast between adjacent sections of a single statute.   See King v. St. Vincent’s Hosp., 502 U.S. 215, 218-21, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991).   This construction becomes irresistible when one considers that Congress did not give the President a deadline before which he must “appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.”  28 U.S.C. § 541(a).

      These two pieces of the statutory scheme fit together tongue and groove.   In such circumstances, it is the court’s role to give effect to plain meaning rather than to decide whether some other formulation might have been preferable as a matter of policy.   Consequently, we decline Hilario’s invitation to rewrite the statutory scheme by inserting a temporal limit into either of the two provisions we have mentioned.   Instead, we read section 546(d) forthrightly to allow a judicial appointee to serve until the vacancy is filled, whenever that may be.

      I don’t see how Berman will be able to get around 28 U.S.C. 541(c): Each United States attorney is subject to removal by the President.

      So, AG Barr cannot fire and replace Berman. But, it would appear, the President can remove Berman and then there is a vacancy and then AG Barr can put in whatever corrupt lightweight he deems will carry Trump’s dirty water.

      1. And, in view of Berman refusing to vacate the office, AG Barr requested that President Trump fire him, and he did. Barr points out that the only reason that the scheme of having the Judiciary appoint a USA is Constitutional is that he can still be fired by the President. He now has been.

        1. And Berman stepped down as I essentially said he would have to:

          “I don’t see how Berman will be able to get around 28 U.S.C. 541(c): Each United States attorney is subject to removal by the President.”

          But Barr couldn’t get away with just lying that Berman had resigned when, in fact, he hadn’t resigned. Barr also could not do the firing himself. Trump had to put his name on the firing of a prosecutor investigating his associates. And Berman’s stand resulted in a less partisan interim appointment. This is how the rule of law and taking a stand of integrity work.

      2. This leads to the follow up question of whether or not the AG could simply reappoint before the expiration of his initial appoint, allowing Trump to bypass Senate confirmation, which he may be inclined to do if Senator Graham holds to his promise to wait for blue slips? With courts only empowered if the appointment expires after 120 days, the AG may be able to pass successive appointments that each get 120 days, so long as he does so before the earlier one expires.

  4. I guess now we know that not all Conspirators actually read this blog: https://reason.com/2020/05/10/can-a-federal-district-court-appoint-a-new-u-s-attorney-can-the-president-fire-a-u-s-attorney-appointed-by-a-federal-court/

    BTW, I would just like to not for the record how much I hate those euphemism for firing people. If you fire someone, have the guts to say so, rather than say that they are “stepping down”, or instructing them to resign. For example, what’s the point of instructing someone to write a letter of resignation???

    1. If you’re asked to resign, you can ask for a letter of recommendation before you hand it in.

      1. AG Barr, in his letter to Berman, notifying him that he had been fired by the President, pointed out that the Administration had been considering appointing him to another equally prestigious post.

  5. Has there ever been a more obviously unconstitutional statute than this one?
    Congress purporting to give the judiciary the authority to appoint someone into the executive.
    Have there not been challenges to this by those convicted by the “acting USAs”?

    1. No, it’s obviously not unconstitutional.

      Re-read the appointments clause pay particular attention to the last sentence.

      and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

      Like it or not, this statute is actually explicitly authorized by the constitution.

      1. Bold fail. Try again.

        and [the President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

        1. Where does it say that the President has to pay them?
          Or how much they be paid?

          1. No need to get ridiculous, it doesn’t even say anything about who gets to fire people.

          2. True, and it also fails to instruct on other important points such as whether they get a big desk or a little desk, proper technique for kissing the Presidential Ass, and so on.

            It is a bit of a cypher. Some think the Founders actually thought citizens should be capable of a certain, minimal degree of rational thought; others think they like taunting those not capable of it.

      2. US Attorney is not an inferior officer.

        1. That’s not what courts have said.

  6. Also, the provision you cited allows the courts to appoint clerks and others within the judiciary, not within the executive.

    1. I agree that’s probably what they meant, but where does it say that?

      1. And courts have been appointing US attorneys in these situations for years.

    2. Really? It seems like it pretty clearly allows congress to let courts make appoints to any it “think[s] proper”.

  7. Reading the statute and noting its structure and wording, it appears that the office is still technically “vacant.” Note that the attorney appointed by the District Court is to continue in office “until the vacancy is filled.”

    But that same clause kills Barr’s case. The AG has the power to appoint an acting US attorney only for up to 120 days; then the power reverts to the District Court Until our regular appointment is made unless the statute itself is invalid, Barr will lose.

  8. As with the DACA case it turns out that Trump and his people are too lazy or too incompetent to do the paperwork and it bites them in the ass down the road.

    Trump truly does have a child’s view of the presidency. A president to him is pretty much a king and he can order whatever he want and it has to happen. And he is amazed when it turns out it doesn’t work that way. This story seems to be exhibit #1,000 of this in action.

  9. So, Trump interviewed and selected Berman—Republican, Trump donor, and Partner at white-shoe law firm—to replace Preet Bharara. But, concerned about embarrassing questions during nomination hearings, Trump never formally nominated him to the position.

    Thus, AG Sessions appointed Berman as interim US Attorney and, when the 120-day clock on interim appointments expired, a panel of federal judges appointed him per process in 28 U.S.C. § 546(d).

    Apparently no one in the AG office read all the way to the end of the statute at that time, thus Berman’s decent argument that will, at least, will draw out the process.

    Seems like Berman realized that Trump’s all but gone, and accepting the higher-level DoJ job Barr offered would just permanently set in the stink of being Trump’s guy. Still having ambitions, he realized another six months as US Attorney wasn’t worth that, so triggered his already planned bail-out (that bail-out is from Trumpworld, not necessarily the SDNY).

    Berman may or may not have some sense of honor or integrity, but he certainly seems to have well-honed survival instincts.

    1. Unless Trump wins.

      1. Yes, such a decision is always a gamble but Berman seems to have taken the smart bet here.

      2. But, then, it is obvious Berman doesn’t fit into one of the categories Purple Martin outlined above (DIM, True Believer, Grifter, Cultist, Transactional snake). In other words, he has some amount of sense in that he isn’t a true believe and sees that working for Trump after Trump and/or his toadies start telling you to do unethical things is a stain that never goes away.

        1. Early in 2017, it seems likely Berman thought he taking an action long common in the circle of politically-connected, high-power Republican lawyers—taking a temporary pay cut to serve a 2-3-year stint in a reasonably-visible DoJ position, setting them up for a more prestigious senior job in some future Republican administration.

          That’s exactly what Bob Barr did a few decades ago, and it certainly proved valuable later.

          Some might say the drawbacks to that plan were predictable even at the time, but Berman probably felt he didn’t have the time to wait a few more years. He gambled and lost because Trump turned out to be just as bad as many predicted. As you say, he may be trying to fix that here, and it may work.

          1. You have a good point. He does seem to be trying to do the right thing, because he is certainly alienating himself from the circles of power in the Republican party now.

  10. And don’t forget: Vince Foster “resigned”….

    1. And the real birth certificate still hasn’t been found.

  11. What about THIS:
    the President has appointed Craig Carpenito, currently the United States Attorney for the District of New Jersey, to serve as the Acting United States Attorney for the Southern District of New York, while the Senate is considering Jay Clayton’s nomination.”

    Carpenito was confirmed by the Senate.

    1. Interesting potential complication. But statute seems to say interim appoint is allowed only to fill a vacancy, and the Berman’s position is that the position is not vacant.

      This could be fun.

      1. The fun part will begin when the new kid shows up flanked by US Marshals.

        1. Would be fun, but more likely to be played out in court.

        2. By the way, Larry Tribe today (yes, Tribe’s speaking from a position of advocacy…so quote your own credible advocate saying the Marshals Service will evict Berman):

          [if Carpenito] “…tries to exercise power as the ostensible interim U.S. Attorney for SDNY as of July 3, as Barr says he will, he’ll arguably be committing the federal crime of ‘falsely assum[ing] to be an [executive] officer’ 18 U.S.C.§ 912…

          “Whether any of these legal obstacles will prove decisive isn’t clear, of course, but the Supreme Court’s census decision last year, and its DACA decision a few days ago, should serve as reminders that, in America, the rule of law still matters.”

          1. Did Prof. Tribe mention whether the limitation period for an offense associated with 18 U.S.C. § 912 would expire before late January?

            “Lock him up,” indeed!

  12. This is not good legal analysis by Prof. Post. He ignores relevant statutes, ignores the fact that his interpretation leads to an absurd result, and it is likely unconstitutional.

  13. Next move for Berman, up the profile of Trump-related cases. Make Trump try to remove him while he is visibly trying to subpoena evidence Trump wants suppressed.

    1. You apparently view justice as indistinguishable from PR, propaganda, and political maneuvering.

      1. Well, in this situation (and as he has in many others), Barr played that card first. So, yes, that’s how it will continue until final resolution.

        Which may not be until the next President’s term.

        1. You guys keep going with nevermind rules or principles and then complaining that the other side isn’t playing by rules or principles.
          The end result of doubling down on that over and over and over will be bloody.

          1. The end result will be that people all over the political spectrum will see the law as just a tool to be used by whomever has the power to interpret it. The establishment will always win. The law will lose its legitimacy. In the long run, this will lead to chaos.

          2. Says a Trump supporter? You do realize he fired a bunch of IGs for nakedly political (corrupt) reasons and is firing this US Attorney for being insufficiently pro-Trump, and is otherwise relying on Acting officers instead of appointing people who can get confirmed by the Senate in a clear run-around the process contemplated by the Constitution for long-term occupants. And now you are complaining about a Court-appointed AG which is consistent with the Constitution and controlling statutes?

            Who are the ones who are failing to “mind rules or principles” in these IG and interim appointment situations?

            1. The guy calling for a PR propaganda effort by the outgoing US Attorney isn’t apparently interested in any principles related to justice.

              1. The guy using a PR propaganda effort to corruptly dismiss the most meaningfully currently impactful US Attorney isn’t apparently interested in any principles related to justice.

                1. I don’t care to change the subject from the call for illegitimate actions by the US Attorney. You go ahead and have that conversation with whomever you can bait into it.

                  1. If you believe, and there is ample evidence to believe, that the administration is trying to quietly replace a US Attorney who has integrity and is pursuing cases against Trump associates and entities related to autocrats with whom Trump is trying to curry favor for the purpose of getting a new person in that position who will have less integrity and will undermine or shut down those investigations for the purpose of pleasing Trump, then the only avenue you have is to speak out about it. What you call a PR propaganda effort. In short, if you are asked to step aside so corruption can be done, your obligation is to say no. If you want a corrupt US attorney, then you have to fire me. That is absolutely legitimate, violates no principle of morality, justice, or law. Trump has now fired Berman. But Berman did what he could, instead of taking a better paying job and keeping quiet, he let it be known what was happening. That is absolutely upholding the principles of justice. (And this is true even if you believe he is wrong that his replacement is being chosen to subvert justice.

                    1. I heard Trump also colluded with Russia. But that turned out to be a campaign of Obama Administration and Clinton-connected liars who would say one thing on the news and the exact opposite when testifying under oath.

                      Now the snakes from the same den are talking about something else. And using it to try to justify an illegitimate non-judicial PR campaign by a now fired US Attorney.

                      And your defense is that the now fired US Attorney would not technically be breaking any law.

                    2. Ben,

                      Since you obviously didn’t read it the first time:

                      In short, if you are asked to step aside so corruption can be done, your obligation is to say no. If you want a corrupt US attorney, then you have to fire me. That is absolutely legitimate, violates no principle of morality, justice, or law. Trump has now fired Berman. But Berman did what he could, instead of taking a better paying job and keeping quiet, he let it be known what was happening. That is absolutely upholding the principles of justice.

      2. Ben, did you fail to note that the predicate for my remark is that Trump be visibly trying to suppress evidence. All he has to do to thwart Berman is not try to suppress evidence. Perhaps you think that is an unreasonable demand? Given Trump, maybe it is.

        1. Propaganda and PR and political maneuvering are not justice. The US Attorney ought to pursue justice by legitimate means.

          Very unprincipled people might call for illegitimate actions by US Attorneys though.

          1. Ben, please relate the times Trump has not considered *any* attempt by duly appointed/elected legal authorities (state or federal), to follow up on undeniable potential evidence of malfeasance or corruption by himself or his supporters, business associates & friends, “illegitimate actions?”

            1. I don’t care to change the subject to divert attention from the call for illegitimate actions by the US Attorney. You go ahead.

              1. OK, the answer is “Never.”

                Just posting to demonstrate that your stated concerns about “…the other side isn’t playing by rules or principles… Propaganda…PR…political maneuvering… Very unprincipled people… justice by legitimate means… illegitimate actions”

                …are nor in no way related to:

                “…the other side isn’t playing by rules or principles… Propaganda…PR…political maneuvering… Very unprincipled people… justice by legitimate means… illegitimate actions”

                …but indeed, posted only to support of your favored leader.

        2. Or, maybe trying to get out into the public evidence that has been hidden from them for four years now. SpyGate is fast falling apart, and the evidence of rampant illegalities on the part of the DOJ and FBI, including by the Mueller Special Counsel investigation is turning into a flood. Apparently five separate US Attorneys are involved in the investigation.

          Berman turns out to have been part of the problem, and not part of the solution, with his AUSAs working closely with Mueller prosecutors to bring and prosecute cases based primarily on political animus against their boss, President Trump. Right now, I expect several of his AUSAs to face discipline, as well, of course, as any Mueller prosecutors remaining in the DOJ. We shall see. In any case, Berman was likely to stand in the way of that discipline.

          1. “Finally, I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York. With tenacity and savvy, Geoff has done an excellent job leading one of our nation’s most significant U.S. Attorney’s Offices, achieving many successes on consequential civil and criminal matters. I appreciate his service to the Department of Justice and our nation, and I wish him well in the future.”
            —Bob Barr, Attorney General of the United States

            If that was tru yesterday, it’s still true today (well, all except the final six words).

    2. Yes. I can see why you would like that. A purported US Attorney who was neither Presidentially nominated, nor Senate confirmed, attacking the Constitutionally elected President and his Administration.

      The most likely reason that he is being removed, this late, is that he and his AUSAs worked closely with Mueller and his prosecutors. AG Barr appears to be cleaning house by removing prosecutors who crossed the line, and pursued investigations of Trump and his associates based solely on pretexts such as Logan Act or FARA violations, or Obstruction of Justice (independent of underlying prosecutable crimes).

      1. “The most likely reason that he is being removed, this late, is that he and his AUSAs worked closely with Mueller and his prosecutors.”

        So you are all in on this is being a corrupt move by Barr. Cool. Glad you are willing to straightforwardly say that.

        1. No. I was suggesting just the opposite, that AG Barr was draining the swamp, left over by Obama, and that this is part of it.

  14. All we have to do is watch “Billions” to see how this latest attempted firing pans out.

  15. Why don’t the courts just rule that Hillary Clinton is President and be done with it? Let’s have reeducation camps for anyone who opposes our masters.

    1. You’re weird.

      1. No, just frustrated with the process. I’ve spent my life as a government lawyer and the precedents set today are going to plague us for a long time.

        1. Given that, per the Bolton thread, you don’t even know the first thing about when one might or might not be able to get an injunction, I very much doubt that you’re any kind of lawyer.

          1. “I very much doubt that you’re any kind of lawyer.”

            Well, he could very well be practicing law somewhere as an Olin-Heritage-Federalist-ALEC-Bradley lawyer.

    2. Nice comment that has absolutely nothing to do with anything other than courts. lmao. Y’all need to let Hillary go, she’s gone, clinging on to hate like that will only lead to psychosis.

  16. Kind of like the DACA case: Trump wants to do X, but not say he is doing X.

    In DACA, he didn’t want to be on record as saying he was going to be deporting children and people who were brought as children but who have been exemplary residents throughout their childhood and young adulthood, but he did want to deport them. Court says: no, you’re going to have to say it if that’s what you want to do.

    Here, he wants Berman to resign so he can put in a today. Barr lies and says Berman did resign, when he clearly didn’t. Courts gonna say: If you want to fire him, you gotta say you are firing him and then answer why when Congress starts asking questions about the appearance of corruption.

    If you are going to do fucked up shit, then say you are doing fucked up shit. Because there are still a sufficient number of people with integrity that won’t let you play these games in secret, President.

    1. *toady, not today

  17. The strategy seems to be to run out the clock between now and election day. The fact that this may create chaos and bad precedents seems to acceptable; the courts can clean it up after we have an acceptable, establishment approved president.

  18. I’ve spent my life dealing with government officers wanting to exercise their powers, but making a procedural mistake. Sometimes the courts disregard the mistake; sometimes they don’t. It depends on the whim of the judges. Of course, that increases the power of the judges.

    1. Only if executive branch lawyers make mistakes. Which they probably shouldn’t be doing.

      1. I rarely saw a government action that did not have some mistake.

  19. ” Today brings word that President Trump, having summarily disposed of a number of pesky Inspectors General who had the temerity to do their jobs….”

    Thanks for reminding me why I don’t subscribe to Reason anymore.

  20. Something like this happened when I was in the Navy JAG in the early 1970s. A famously anti-US government Federal Judge in Utah (Willis Ritter) appointed a liberal lawyer to fill a US Attorney vacancy. The judge’s appointee then notified the Navy that he was refusing to represent the Navy in a lawsuit challenging the expulsion of a Navy enlisted man from a training program. The Navy then had to find a JAG reserve officer in Utah to defend the case. A couple of years later DOJ petitioned the 10th Circuit to order Willis disqualified from hearing any cases involving the US government. Because the 10th Circuit had a record of frequently reversing Willis decisions, it was expected that the petition would be granted, but Judge Willis died before any decision could be issued. The whole episode showed just exactly how a judge’s power to fill a US attorney vacancy can be abused for partisan or other improper purposes. So do the events now unfolding in the Southern District.

    1. But TRUMP! Any judicial abuse is justified. They just have to stall his actions for a few more months and then President Biden can rule by decree.

  21. “…events now unfolding in the Southern District.”

    Tell me how “…how a judge’s power to fill a US attorney vacancy can be abused for partisan or other improper purposes” is relevant to a judicial panel using a statutorily-enabled process to fill a 2017 judicial vacancy that was created by President Trump and AG Sessions in order to avoid a possibly embarrassing Senate confirmation hearing. Especially since the appointee was personally interviewed and selected by Trump, and was a Republican Trump supporter.

    Serious question. How does that relate to the facts of your 1970s story?

    So do the events now unfolding in the Southern District. the events now unfolding in the Southern District” are in any way relev

  22. So, now that circumstances have changed to prevent either Carpenito from assuming the interim slot, or Taylor to be confirmed to the permanent position, I expect Berman to file suit to get to a final resolution.

    It seems likely, however, that he will announce he’s stepping down in the meantime because the current long-time, very professional and well-regarded Deputy U.S. Attorney for the SDNY will assume the interim position and ensure there will be no interruption to current on-going investigations.

    He’s just made his bet that in the next couple of years, the four-year Trump administration will be viewed as a temporary aberration, and he will be remembered for acting with integrity when many others did not.

  23. It is perhaps worth noting that OLC considered this question back in 1979, concluding that the president retained authority to remove the US attorney in these situations. That conclusion seems to follow pretty clearly from the language of the two relevant statutes, and I think the other result would almost certainly be unconstitutional. Barr and Trump are certainly open to political criticism (the merits of which perhaps deserve their own post), but I don’t think it’s even an interesting legal question whether or not they’re allowed to do it.


    1. Don’t think any OLC position can be considered dispositive..the ones that come out remain just non-judicial opinions that provide justification for a government action (when they don’t support the government, they rarely come out. Although I suppose some of those are believed by the government, so the considered action is never taken).

      I have, however, read a couple of neutral legal analysts today quoting actual court opinions citing a statute giving the President the power to fire US Attorneys for any reason, regardless of conflicts in other statutes stating that a person appointed US Attorney by judicial action remains in the position until a replacement nominee is confirmed by the Senate. (INAL so will leave it up to someone else to provide the cites if they feel necessary)

      So, if Berman files suit based on 28 U.S.C. § 546(d), It seems he’ll likely lose. But as mentioned, his action was meaningful in that if forced Trump/Barr to abandon both of their announced personnel actions (for Interim appointee and following nomination to lead the SDNY).

  24. OK, Berman is now officially out, so the kakistocracy rolls on.

  25. House Judiciary Committee will hold more hearings. Probably too late for another impeachment.

  26. Interesting reasoning but it apparently didn’t apply to Barack Obama, who I understand fired all the U.S. Attorneys in one fell swoop upon assuming office. I don’t see any statutes that say Democrat and Republican Presidents have different powers because of their party.

Please to post comments