Patterico's Pontifications

6/19/2020

WHOA: Trump Attempts Friday Night Massacre; Falls Directly on His Face

Filed under: General — Patterico @ 8:52 pm



This is an amazing story. This is likely to drive news coverage for a few days; as Joe Biden might say, it’s a big f[vowel deleted]cling deal. So listen up. The explanation will not take long.

Tonight, word came over the wire that the Acting U.S. Attorney for the Southern District of New York, Geoff Berman, had resigned. Odd news for a Friday night. Ever hear the phrase Friday night news dump?

Just one leetle problem: Berman says: I resigned?? The hell I did!

And guess what? He’s right. Until Trump gets someone new confirmed by the U.S. Senate, the better argument is that Trump can’t replace him. [See updates below for some nuance on this. — P] My favorite law professor at the University of Texas School of Law, Steve Vladeck (narrowly edging out Bobby Chesney; sorry, Bobby!) explains:

Gabe Malor has an invaluable thread on the whole issue. Who is Trump trying to protect? Best guess is: Rudy “Crazy Eyes” Giuliani:

Start the popcorn poppin’, folks. This is going to be a good one.

UPDATE: Prof. Vladeck has since made it clear that while Barr can’t fire the guy, there is an argument that Trump himself can replace him. But the statute that might authorize that is in conflict with the one cited in the post, so it’s not at all clear — and if Berman is refusing to leave, it may take a court to decide.

Meanwhile, it’s still not clear why this is all happening. But whatever it is, I predict it’s corrupt.

UPDATE x2: A 1979 OLC opinion says the President (but not the A.G.!) can indeed fire judicially appointed U.S. Attorneys. I don’t find the opinion convincing because I cannot find where it addresses the “until the vacancy is filled” language that creates the conflict between the statute that allows a President to fire U.S. Attorneys and the statute quoted in the post that says judicially appointed U.S. Attorneys “serve until the vacancy is filled.” Since the vacancy can be filled only by a Senate confirmation of a new appointee, there is at least a very serious conflict between the statutes — one that it may take an Article III judge to decide given that Berman is refusing to quit.

In case you were wondering why Congress has any say at all, the OLC opinion is helpful in that regard. The opinion explains that a Supreme Court case, Myers v. United States, explains that the rule allowing Presidents unilateral authority to remove executive officers “is of a constitutional nature in the case of executive officers appointed by the President by and with the advice and consent of the Senate.” However, “where Congress exercises its authority under Article II, section 2, clause 2, of the Constitution by vesting the power of appointing inferior officers in the President alone, the heads of depart­ments, or the courts, it can also regulate the manner for the removal of those officers appointed by department heads and the courts.” The question here is whether, by stating that the appointment lasts “until the vacancy is filled” (and that can happen only by Senate confirmation of a new nominee) that Congress has limited the power it otherwise gives the President (and not the AG) to remove U.S. Attorneys generally.

It is a little more complex than it initially appeared last night, but to me the OLC opinion has to address the conflict — or at least acknowledge it — before we can ascribe to it any sort of genuine authority on the question. I happen to think OLC gets things wrong sometimes, and unlike their opinions that are binding on DoJ, this one is not binding on Article III courts.

UPDATE x3: There is a clump blocking the circulatory system of the rule of law. This morning, the clot thickens:

UPDATE x4: Here’s Barr’s letter. Very interesting. This may fly and it may not. Stay tuned.

UPDATE x5: Another point: even if Trump is allowed to remove Berman, it’s far from clear under these circumstances that Trump gets to choose his immediate replacement (that is, who will be the U.S. Attorney until the Senate confirms a replacement). It may be that the judges of the SDNY get to pick Berman’s interim replacement.

And by the way, you know this all has to be annoying them, if not infuriating them.

UPDATE x6: Bill Barr must be tearing out his remaining hair right about now.

UPDATE x7:

UPDATE x8: And thus ends the saga. Now that his deputy is taking over, Berman is stepping aside.

UPDATE x9:

125 Responses to “WHOA: Trump Attempts Friday Night Massacre; Falls Directly on His Face”

  1. Wow.

    Patterico (115b1f)

  2. Shades of the Tenure In Office Act.

    nk (1d9030)

  3. So.

    Much.

    Winning.

    Dave (1bb933)

  4. How can it be true that an incoming president has the right to demand the resignation of all USA’s if “judicially appointed” USA’s can not be removed until the Senate confirms a replacement?

    Or, has it been fake news about previous presidents doing just that?

    How can an officer of the Executive Branch serve at the behest of the Judiciary and not the pleasure of the president?

    I do not minimize the political/optics cluster this is going to be. Barr is a damn fool to lie about this. I hope for all our sakes he did not.

    Ed from SFV (f64387)

  5. Or, has it been fake news about previous presidents doing just that

    Berman is there because Trump never got around to nominating him or anyone else by the deadline set by law. The District Court judges therefore had the job of appointing someone. They appointed Berman.

    Since most Presidents managed to fill vacancies in time, the situation hasn’t come up before.

    Kishnevi (e95bdb)

  6. Kishnevi – True believers were aghast that DJT refused to demand the blanket resignations. They still scream about it. What about the Senate slow-rolling so many of his appointees across the government?
    abuse of process is the argument against DJT? Puhleaze.

    He (unwittingly or not) left Obama USA’s in place, and many other such Executive branch holdovers. It has come back to bite him bigly. It can’t be the case, imo, that a president only has the absolute right to fire within a given period of time upon taking the oath of office. DJT gave up that right by being benevolent?

    Ed from SFV (f64387)

  7. Infrastructure Week, we hardly knew ye…

    Dave (1bb933)

  8. Berman is in Giuliani’s old office. Somewhere the ghost of John Gotti is smiling.

    nk (1d9030)

  9. DJT gave up that right by being benevolent?

    Trump and “benevolent” don’t belong in the same sentence. Lazy, indifferent, ignorant, arrogant, stupid, concupiscent, mendacious, meretricious, ….

    nk (1d9030)

  10. Is William Barr just that bad of a lawyer? Why can’t he manage to get stuff like this done? It really is puzzling.

    Time123 (9f42ee)

  11. One Justice Department official, speaking on the condition of anonymity due to the situation’s volatility, said the change arose because Clayton was preparing to leave the SEC later this year and had also expressed interest in the New York prosecutor job. Barr liked Clayton and liked the idea, the official said. Barr offered Berman the chance to become the head of the Justice Department’s Civil Division, but Berman declined, the official said.

    https://www.washingtonpost.com/national-security/trump-administration-replaces-manhattan-us-attorney/2020/06/19/acae9348-b298-11ea-8758-bfd1d045525a_story.html

    So, who knows with these people?

    nk (1d9030)

  12. Until I hear from rcocean I don’t believe any of this.

    lurker (d8c5bc)

  13. Well, at least until some point in Trump’s second term he still has to obey the language of statute. And the language says that an attorney filled by a district judge because of an unfilled vacancy remains an attorney until the vacancy is filled. Not until the president heaves his huge body up and orders his toady to get rid of the guy.

    Funny, the Executive still is under the obligation to execute the laws. Not ignore them.

    Victor (a225f9)

  14. In other words, the news of the death of Mr. Berman’s career has been greatly exaggerated.

    Paul Montagu (d27749)

  15. I have moved from being a reluctant (or pragmatic, to use our host’s term) Trump voter to being officially on the fence. Not because of this incident per se. Just thought it would be a good time to come clean.

    norcal (a5428a)

  16. But wait there’s more:

    Preet Bharara, whom Berman replaced after being fired by Trump, in a tweet asked, “Why does a president get rid of his own hand-picked US Attorney in SDNY on a Friday night, less than 5 months before the election?”
    ….
    Bharara wrote in another tweet, before Berman issued his statement, “Let me be stronger here. Berman ‘stepping down’ is bull—-. He was fired.”

    When Berman said he would refuse to leave his job, Bharara, during an appearance on CNN, said, “Good for him.”

    https://www.cnbc.com/2020/06/19/justice-department-replaces-federal-prosecutor-berman-with-sec-clayton.html

    So Berman is not an Obama holdover whom Trump did not fire. He was picked by Trump to replace Bharara (instead of Bharara’s First Assistant as is usual) as acting USA, and Trump never followed through with a Senate confirmation.

    This is so great! Let’s keep it!

    nk (1d9030)

  17. “What about the Senate slow-rolling so many of his appointees across the government?
    abuse of process is the argument against DJT?”

    The reason he had so many appointments was due to the senate slow rolling Obama.

    Davethulhu (9921df)

  18. “Is William Barr just that bad of a lawyer? Why can’t he manage to get stuff like this done? It really is puzzling.”

    Barr got his position due to his willingness to lie for Trump

    Davethulhu (9921df)

  19. Trump had a really messed-up transition, for which he can thank his son-in-law.

    Like Patterico said, break out the popcorn. There will be sideshows. For one, McConnell trying to muster 50 votes to confirm Clayton (Pence will be the 51st) fast enough to please the orange.

    nk (1d9030)

  20. Don’t much care for Trump but this is really unseemly all around. The Bipartisan Party has not accepted it’s loss in 2016 and has been conducting a full-court press ever since. People quote the “Rule of Law” but this is just lawfare — the abuse of the law to get over on your opponents. Trump and his people are understandably irate and are lashing out as they really don’t have much of a clue, but the constant picador action from the hinterlands one this subject and that is the kind of thing that could happen to MANY politicians, but doesn’t because they are in the club.

    The scorched-earth tactics that have been used against Trump will haunt this country for years. I know that some cheer it on, being partisan or unthinking or both, but if this becomes the new normal, nobody will be able to govern and we’ll all starve while the lawyers fight over who gets to control the scraps.

    Kevin M (ab1c11)

  21. One Congressman has two rent-controlled apartments and a home in the Islands and pays no taxes on them and that’s fine.

    A Congresswoman uses her power to help out her husband’s bank. And that’s fine.

    A former governor LOOTS the accounts of his brokerage firm, trying (unsuccessfully) to stave off bankruptcy due to his crazed and illegal trades, ruining many, and he is not even charged with a crime.

    A Senator diddles little girls in the Islands, but that’s OK for some reason.

    A Presidential candidate (and later president) openly accepts foreign donations through a websites that (accidentally) forgets to check on that detail. But that’s OK, too.

    A former national security adviser destroys a document subpoenaed by the 9/11 commission after smuggling it out of the national archives in his pants, and serves not a day in jail.

    But let someone who has criticized the president give money illegally to a friend running a vanity campaign (that he cannot win) and he does serious felony time.

    There is no Rule of Law, there is only a smokescreen that is used when They want to go after someone who’s upset their gravy train. The Rule of Law died sometime in the Johnson administration. Not sure which one.

    Kevin M (ab1c11)

  22. The scorched-earth tactics that have been used against by Trump will haunt this country for years.

    The problem isn’t that Trump has been treated too harshly, but rather the opposite.

    He should have been told to pound sand when he pretended to be a republican.

    He should have been laughed off the stage at the first debate.

    He should have been denied access to subsequent debates unless he agreed to appear dressed in a clown suit with greasepaint, rubber nose, fright wig, polka-dotted bow-tie and floppy shoes.

    He should have been denied ballot access in every primary.

    The republican convention should have adjourned sine die rather than nominating him.

    Congress should have refused to consider any nominees, unanimously eliminated all funding for travel, housing and security, and barred him from the White House until he demonstrated willingness to abide by basic standards of decorum and decency.

    He should have been unanimously impeached and convicted no later than the summer of 2017.

    Dave (1bb933)

  23. @21 What are you talking about? Berman worked with Trump’s transition team and then was interviewed for his current position by Trump, after which Sessions appointed him as acting pending senate confirmation, then the administration never bothered to put him up for confirmation, which is how he ended up appointed by the judiciary. This total charlie foxtrot was entirely an own-goal by the Trump administration without any interference from anyone else.

    All. The Best. People.

    Nic (896fdf)

  24. All that’s left now is for Trump to pillory yet another of his hand-picked nominees on Twitter…

    Dave (1bb933)

  25. At some point, it stops being the fault of everyone else.

    norcal (a5428a)

  26. This is great, love it. This schiff hole country is in demise because of the establishment republicans, no one on earth sucks like you people. Time for the silent majority to BLM. Burn, Loot and ………

    mg (8cbc69)

  27. I can’t wait to learn what crime they are obstructing.

    Dustin (e3a6ae)

  28. It might only be infighting among the Trump harem catamites, with Barr wanting to make a gift of SDNY to his clique-mate Clayton, and Berman holding on tightly and screaming “Mine!”

    “Only” being the operative word. It is definitely infighting among the Trump harem catamites.

    Just speculating that the Giuliani investigation might not be the moving force, Trump’s definition of loyalty to old friends and allies being “So what have you done for me lately?”

    nk (1d9030)

  29. should have been done three years ago, but that foghorn leghorn session fell for the chickenscratch sally yates, provided to ignatius, how they focused like a laser on carter page, the most dangerous man on earth, like mr. neutron, yes this blog has descended to bad python depths,

    narciso (7404b5)

  30. Y’all still insist on not knowing what you’re talking about.

    Berman is not an Obama holdover!

    Trump personally appointed him to the job!

    And then never bothered to have him confirmed by the Senate or replace him by someone else who was!

    Three years ago!

    nk (1d9030)

  31. progs always get a pass, holder was never held accountable for fast and furious, heck they are still hiding documents ten years later, hillary violating dozens of laws, get out of town,

    narciso (7404b5)

  32. mr donald the president also known as trump was busy golfing and tweeting about trashy mikas work

    there are only so many hours in the day

    Dave (1bb933)

  33. wow entitled to a transition, how generous, but you drive anyone who held a cup of coffee under legal scrutiny, meanwhile the colluders with the iranian revolutionary guard, get to call the shots,

    narciso (7404b5)

  34. You’re pissing in the wind, when breakage is the norm around here, narciso.

    Colonel Haiku (2601c0)

  35. I drop by this peanut gallery, and ponder ginsburg’s howl,

    narciso (7404b5)

  36. Leave the gaslighting to Trump, guys. He knows whom to pull it on. If you did, you’d be President. The only Ingrid Bergmans here are already Trump supporters.

    Oh, yeah, and the poor squirrels, too. Leave them alone. What did they ever do to you?

    nk (1d9030)

  37. The NYT noted the following:

    Mr. Barr’s attempt to remove Mr. Berman came two days after excerpts released from Mr. Bolton’s upcoming book described what Mr. Bolton said was Mr. Trump’s willingness to intervene in criminal investigations, including one in Mr. Berman’s office.

    Paul Montagu (d27749)

  38. Judge Weighs Administration Request to Order Bolton to Try to Pull Back Book
    Lawyers for the Justice Department and John R. Bolton, President Trump’s former national security adviser, clashed on Friday as a federal judge weighed a Trump administration request to order Mr. Bolton to somehow claw back his memoir even though hundreds of thousands of copies were printed and distributed around the world.
    …….
    “Deterrence matters,” Mr. Morrell told the judge overseeing the case, Royce C. Lamberth of the Federal District Court of the District of Columbia. “There is a massive government interest that these agreements that are designed to protect classified information are not willy-nilly breached by disgruntled authors.”

    But Charles J. Cooper, a lawyer for Mr. Bolton, called the request for an order that his client pull back the memoir “theater” both under the First Amendment and as a matter of practical reality. The Justice Department has also claimed that such an order could bind Mr. Bolton’s publisher, Simon & Schuster, and bookstores.
    ……..
    Under questioning from Judge Lamberth, Mr. Morrell acknowledged that as many as half of the six examples Mr. Ellis flagged may not have been classified when Mr. Bolton wrote his manuscript, and only became so because Mr. Ellis deemed them as such. He also said he knew of no previous instance of senior officials starting a second review of a manuscript after the first reviewer made changes and was satisfied that it had no classified information.
    ……

    Rip Murdock (212cb2)

  39. Speaking of falling on their face, the other side is prepping the country for the Biden administration:

    Marc Caputo
    @MarcACaputo

    Lost Cause meet Crazy Cause: using Juneteenth to tear down of the San Fran. statue of Ulysses S. Grant —who won the Civil War that led to emancipation, long before had freed the 1 slave he had been given & who was later eulogized by Frederick Douglass
    _

    harkin (f5f3f1)

  40. 40. Patterico predicted it.

    nk (1d9030)

  41. Easy prediction. The bar for prior restraint is very high. But Bolton will probably lose millions of dollars.

    Rip Murdock (212cb2)

  42. 41. They also toppled the statues of Fr. Junipero Serra and Francis Scott Key. Forget it, it’s San Francisco. It’s less of a political statement, and more in the way of evidence of the effects of HIV on the brain.

    nk (1d9030)

  43. What kind of Attorney General sends out a press release announcing this “resignation”? Is he as immature as Trump? Is this some sort of stupid game for him? A corruption comedy?

    Then there are the Administration’s other little things in the news just this week: threatening of protesters, muzzling Fauci, attempting to jail authors, approving Chinese concentration camps and fixing our election with foreign assistance… again!

    And let’s not forget the large indoor rally during a pandemic…. aka…. “natural selection”.

    noel (4d3313)

  44. There are prior restraints and prior restraints and prior restraints. Three different kinds.
    Copyright is almost no bar at all. It is the same standard as the award of monetary damages.
    Government secrets has a very high bar.
    Contractual/arising out of employment falls somewhere in-between.

    In all cases, the rules of equity apply. One of those is that equity will not order a pointless act. Or as Judge Lamberth put it, it will not “lock the barn door after the horse is gone”.

    nk (1d9030)

  45. there probably is classified info in it, but who cares right, catherine herridges colleagues at cbs don’t

    narciso (7404b5)

  46. judge ellis talks a good game, but ultimately he went along with the pantomine horse, now if you investigated every lobbyist on k street, it would mean something,

    narciso (7404b5)

  47. there probably is classified info in it, but who cares right, catherine herridges colleagues at cbs don’t

    It’s not the responsibility of the press to secure government secrets, it’s the responsibility of the government to do so.

    Rip Murdock (212cb2)

  48. “there probably is classified info in it, but who cares right, catherine herridges colleagues at cbs don’t”

    There’s probably not, because it was reviewed and passed initially. That it contains things embarrassing to trump is the opposite of a secret.

    Davethulhu (9921df)

  49. nk (1d9030) — 6/20/2020 @ 5:11 am

    I subscribe to these ideas.

    felipe (023cc9)

  50. The more I’ve read about this the more mind amazingly incompetent the Trump administration appears to be.

    Trump interviewed Berman and Sessions appointed him acting acting USA.
    They never submitted his name to the senate for approval.
    Then they try to fire him when they don’t have the legal authority to do that, when they could have just had someone else confirmed in his place.

    I know they can’t get someone approved within a few minutes of deciding that they want to, the lack of planning is part of the incompetence, as is the lack of other work around.

    If there were grounds to fire him I would assume they would use those to do so for cause. Unless the grounds are corrupt, which given Trump’s history is almost certainly the case.

    What a bunch of losers.

    Time123 (cd2ff4)

  51. Great minds think alike, felipe.

    nk (1d9030)

  52. An idealists statement:

    It’s not the responsibility of the press to secure government secrets, it’s the responsibility of the government to do so.
    Rip Murdock (212cb2) — 6/20/2020 @ 8:33 am

    A realists statement:

    It’s not the responsibility of the press to secure the secrets of Republicans in government, it’s the responsibility of the Republicans in government to do so.

    felipe (023cc9)

  53. 28 U.S.C Section 546(d) states the District Court may appoint someone. But that doesn’t mean he can’t be fired by the POTUS. Everyone in the DoJ works for the AG and ultimately for the President. Using the logic shown here, Barr would have to go to Court to get Berman fired for unethical behavior or abuse of office, which is crazy. Berman is NOT a Judge appointed for life!

    As usual, I suppose this will be decided by Judicial Branch which is now the Supreme Branch of Government. Guess George Will and Erickson were talking out of their arse when they said the Judiciary doesn’t matter ( its only 1 of 3 branches). Its the MOST IMPORTANT Branch since it decides everything and has seemingly unlimited power ceded to it by the other two branches.

    rcocean (fcc23e)

  54. Trump simply left it to Sessions to appoint a new Attorney General, and Sessions as usual screwed the pooch by giving us another Rosenstein. While I hope Sessions wins re-election as Senator, he was the worst AG possible. Senators don’t need to run an organization or hire/fire personnel except for their very small staffs. Sessions seems to be a great talker and fine legislator but a complete bust at running things. I wouldn’t hire him to run a Popsicle stand.

    rcocean (fcc23e)

  55. Sessions fired Rosenstein and Trump rehired him. Trump interviewed Berman, who was on his transition team, and told Sessions to appoint him as acting USA for SDNY, instead of Preet Bharara’s First Assistant which is the usual practice.

    Like I told the others, leave the gaslighting to Trump, rcocean. Trump supporters are the only Ingrid Bergmans here.

    nk (1d9030)

  56. Trump simply left it to Sessions to appoint a new Attorney General,

    Ok, I had kind of missed that when I made my previous comment.

    Never mind, rcocean. I wish you well.

    nk (1d9030)

  57. Trump supporters are the only Ingrid Bergmans here.

    We’ll always have Helsinki…

    Dave (1bb933)

  58. Barr would have to go to Court to get Berman fired for unethical behavior or abuse of office, which is crazy

    … whereas if no unethical behavior or abuse of office is alleged, and no reason for dismissal is even offered, then it should be easy-peasy to get rid of a prosecutor who’s investigating the behavior of the president’s allies, and install someone more “loyal.”

    Radegunda (89f220)

  59. There’s probably not, because it was reviewed and passed initially. That it contains things embarrassing to trump is the opposite of a secret.

    Read it, twice, the second specifically to look for things that might be classified. Nothing I can find in any way would meet the criteria. I’ve had a TS as well as the full SCI enhancement for 25 years, there are some attributes you can recognize, and nothing in there rings true for that, and most certainly nothing that would be Yankee White. There’s lots of things that may be confidential maybe, embarrassing sure.

    Also, classified doesn’t mean secret, it means that it has a classification; which could be confidential, secret, top secret, and compartmentalized.

    I expect that Trump has no idea what any of that means, if he wasn’t president, he’d not qualify to get a TS clearance, same with a ridiculous number of admin members. His office gives him access, and ability to give people like Kushner clearance by fiat.

    Bolton is going to get dinged because he didn’t wait for “official” notice, they did have the unofficial notice though, and the publishing date was known 4 months ago, so if the admin wanted to sue, 3 weeks ago, or 3 months ago would have been the time to attempt to stop it.

    Colonel Klink (Ret) (305827)

  60. if he wasn’t president, he’d not qualify to get a TS clearance, same with a ridiculous number of admin members.

    Remember when all the conservative media were saying that about Obama, and found it deeply concerning?
    How things change.

    Radegunda (89f220)

  61. UPDATE: Prof. Vladeck has since made it clear that while Barr can’t fire the guy, there is an argument that Trump himself can replace him. But the statute that might authorize that is in conflict with the one cited in the post, so it’s not at all clear — and if Berman is refusing to leave, it may take a court to decide.

    Meanwhile, it’s still not clear why this is all happening. But whatever it is, I predict it’s corrupt.

    Patterico (115b1f)

  62. But whatever it is, I predict it’s corrupt.

    Always trust content from patterico.com.

    Dave (1bb933)

  63. It was well established and accepted during the Mueller witch hunt that DJT had the absolute right to fire Mueller, despite the fact Mueller was investigating him. Even the looniest Dems acknowledged it. I think they were reeeeeeally hoping DJT would do it.

    Nixon fired Cox. End of story.

    If DJT, or any president, can fire a Special Counsel, he/they most assuredly can fire a USA. N

    Ed from SFV (f64387)

  64. Meanwhile, it’s still not clear why this is all happening. But whatever it is, I predict it’s corrupt.

    I can’t find the specific news item, but IIRC there were some subpoenas issued to the inauguration committee a few months ago, so this would be around the time where the tree bears the fruit.

    Colonel Klink (Ret) (305827)

  65. If DJT, or any president, can fire a Special Counsel, he/they most assuredly can fire a USA. N

    Maybe, but since that isn’t what happened it’s a moot point. Barr announced that Berman had quit, when in fact, that was a blatant lie.

    If Trump wants to fire him, there’s a process for that, see SCOTUS rulings on DACA and Census, lazy and ignorant isn’t a good way to govern.

    Colonel Klink (Ret) (305827)

  66. Yes, Trump can fire him. Myers v. US, 1926. The power to remove appointed officers is vested in the President alone.

    nk (1d9030)

  67. Here is AG Barr’s press release:

    Attorney General William P. Barr has released the following statement:

    “I am pleased to announce that President Trump intends to nominate Jay Clayton, currently the Chairman of the Securities and Exchange Commission, to serve as the next United States Attorney for the Southern District of New York. For the past three years, Jay has been an extraordinarily successful SEC Chairman, overseeing efforts to modernize regulation of the capital markets, protect Main Street investors, enhance American competitiveness, and address challenges ranging from cybersecurity issues to the COVID-19 pandemic. His management experience and expertise in financial regulation give him an ideal background to lead the United States Attorney’s Office for the Southern District of New York, and he will be a worthy successor to the many historic figures who have held that post. On behalf of the President, I thank Jay for accepting this nomination, and I look forward to working with him soon.

    On my recommendation, 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. This appointment will be effective July 3, and Craig will work closely with the outgoing United States Attorney to ensure a smooth transition. I thank Craig for his continued service and for taking on this important interim responsibility.

    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.”

    DRJ (aede82)

  68. One guy a “massacre?”

    Little Big Horn musta been genocide. 😉

    DCSCA (797bc0)

  69. I don’t see where the OLC opinion addresses the “until the vacancy is filled” language creating the conflict between the statutes.

    It does make it clear, however, that Myers does not apply and “where Congress exercises its authority under Article II, section 2, clause 2, of the Constitution by vesting the power of appointing inferior officers in the President alone, the heads of depart­ments, or the courts, it can also regulate the manner for the removal of those officers appointed by department heads and the courts.” The question here is whether, by stating that the appointment lasts “until the vacancy is filled” (and that can happen only by Senate confirmation of a new nominee) that Congress has limited the power it otherwise gives the President (and not the AG) to remove U.S. Attorneys generally.

    Patterico (115b1f)

  70. S

    essions fired Rosenstein and Trump rehired him. Trump interviewed Berman, who was on his transition team, and told Sessions to appoint him as acting USA for SDNY, instead of Preet Bharara’s First Assistant which is the usual practice.

    Huh? Sessions NEVER fired Rosenstein. that’s crazy. Nor did Trump TELL Sessions to hire Berman. Why are just making up stuff?

    As for other comments, Yes, I wrote “AG” instead of District attorney”. So what? At least I don’t make up things.

    rcocean (fcc23e)

  71. Of course, the Judiciary will ultimately decide if Berman stays. Because they’ve been deciding EVERYTHING. Why even go through the trouble of electing a President. Lets just let the SCOTUS judges to it. Roberts can run the immigration service, and Goresuch can run the Civil Rights division.

    rcocean (fcc23e)

  72. “You’re fired.”

    “No, I’m not.”

    You’d think ‘conservatives’ would rally to that bureaucratic mindset alone as a battle cry.

    DCSCA (797bc0)

  73. As for other comments, Yes, I wrote “AG” instead of District attorney”. So what? At least I don’t make up things.

    Well, you do, all the time.

    Also, it’s not “District attorney”, nor is it “AG”, it’s the USA of the SDNY, United States Attorney for the Southern District of New York.

    Colonel Klink (Ret) (305827)

  74. UPDATE x2: A 1979 OLC opinion says the President (but not the A.G.!) can indeed fire judicially appointed U.S. Attorneys. I don’t find the opinion convincing because I cannot find where it addresses the “until the vacancy is filled” language that creates the conflict between the statute that allows a President to fire U.S. Attorneys and the statute quoted in the post that says judicially appointed U.S. Attorneys “serve until the vacancy is filled.” Since the vacancy can be filled only by a Senate confirmation of a new appointee, there is at least a very serious conflict between the statutes — one that it may take an Article III judge to decide given that Berman is refusing to quit.

    In case you were wondering why Congress has any say at all, the OLC opinion is helpful in that regard. The opinion explains that a Supreme Court case, Myers v. United States, explains that the rule allowing Presidents unilateral authority to remove executive officers “is of a constitutional nature in the case of executive officers appointed by the President by and with the advice and consent of the Senate.” However, “where Congress exercises its authority under Article II, section 2, clause 2, of the Constitution by vesting the power of appointing inferior officers in the President alone, the heads of depart­ments, or the courts, it can also regulate the manner for the removal of those officers appointed by department heads and the courts.” The question here is whether, by stating that the appointment lasts “until the vacancy is filled” (and that can happen only by Senate confirmation of a new nominee) that Congress has limited the power it otherwise gives the President (and not the AG) to remove U.S. Attorneys generally.

    It is a little more complex than it initially appeared last night, but to me the OLC opinion has to address the conflict — or at least acknowledge it — before we can ascribe to it any sort of genuine authority on the question. I happen to think OLC gets things wrong sometimes, and unlike their opinions that are binding on DoJ, this one is not binding on Article III courts.

    Patterico (115b1f)

  75. Of course, the Judiciary will ultimately decide if Berman stays. Because they’ve been deciding EVERYTHING. Why even go through the trouble of electing a President. Lets just let the SCOTUS judges to it. Roberts can run the immigration service, and Goresuch can run the Civil Rights division.

    This is an issue that, in my view, is appropriately decided by courts and not by the administration. I’m sorry that upsets you, but your frustration is not an argument.

    Patterico (115b1f)

  76. UPDATE x3: There is a clump blocking the circulatory system of the rule of law. This morning, the clot thickens:

    Patterico (115b1f)

  77. Huh? Sessions NEVER fired Rosenstein. that’s crazy. Nor did Trump TELL Sessions to hire Berman. Why are just making up stuff?

    Huh, yourself. I am not going to argue facts with you. Would it do any good? Here’s a self-test, you don’t need to tell us the results. What was yesterday’s date?

    nk (1d9030)

  78. UPDATE x4: Here’s Barr’s letter. Very interesting. This may fly and it may not. Stay tuned.

    Patterico (115b1f)

  79. I have no idea why the zeroes are filled in in the year 2000 in the letter…

    Patterico (115b1f)

  80. It will fly. Next…

    Colonel Haiku (99ba6b)

  81. In a letter, AG Barr says that Trump has officially fired Berman.
    “You have chosen public spectacle over public service. Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.”

    So a letter from Barr, claiming that Trump is doing X, but not a letter from Trump, or a tweet even? Barr lies continuously, why believe what he says today about that which he was lying about yesterday?

    Also, doesn’t the Bar Association have some sort of standard for being a member? How has Barr not been…dis-Barr’d? I mean, technically, you don’t have to be an attorney in good standing, or an attorney at all, to be AG, but it would be a bad look. If anyone cared, it’s not like he’s the Solicitor General.

    Colonel Klink (Ret) (305827)

  82. UPDATE x5: Another point: even if Trump is allowed to remove Berman, it’s far from clear under these circumstances that Trump gets to choose his immediate replacement (that is, who will be the U.S. Attorney until the Senate confirms a replacement). It may be that the judges of the SDNY get to pick Berman’s interim replacement.

    And by the way, you know this all has to be annoying them, if not infuriating them.

    Patterico (115b1f)

  83. One guy a “massacre?”

    Little Big Horn musta been genocide. 😉

    Well. The Friday night version was less bloody than the Saturday night version because the top officials at DoJ in the 70s had more integrity than William Barr currently has. They had to dig down three levels to find Robert Bork.

    Patterico (115b1f)

  84. UPDATE x6: Bill Barr must be tearing out his remaining hair right about now.

    Patterico (115b1f)

  85. Patterico (115b1f)

  86. As to the question of why DJT is acting now…He has just installed a hatchet man in whatever the heck the personnel office is called to purge a bunch of swamp creatures. The other thing that occurs to me is that there are likely to be a bunch of investigations of the rioters in NYC (They’ve surely begun). DJT is gonna want a pitbull in the SDNY to cast as wide and punitive a net as possible. Barr may have told DJT that Berman would not be as “enthusiastic” about those potential prosecutions as they each would like.

    Ed from SFV (f64387)

  87. Why would the Feds investigate rioters in NYC?

    Dave (1bb933)

  88. They’re both liars. Which one is lying today? It’s anyone’s guess.

    Why can’t they both be??

    Dave (1bb933)

  89. Donnie was just asked on his way to the Airport about this, he said it was up to Barr. So, does that mean he has, or hasn’t, actually fired Berman? Is it just Barr making things up, again? It’s not like Trump’s mouth doesn’t work.

    Colonel Klink (Ret) (305827)

  90. Why would the Feds investigate rioters in NYC?

    They are keenly interested in the morons that have crossed state lines to riot.

    Colonel Haiku (2601c0)

  91. 90
    In general, yes. But Barr is saying Trump ordered him to fire Berman. Trump is saying he (Trump) didn’t. So it’s A vs not A. Whichever is false means the other is true.

    My guess is Trump is lying. Another instance of his blame shifting, avoiding responsibility, and throwing people under the bus.
    Plus, I don’t think Barr would have tried to fire Berman on his own. (He may have suggested it.)

    Kishnevi (9f11db)

  92. #87 I don’t understand your comment about “Liars”. Trump says “i’m not involved” Barr says “I asked the president to fire him (and the POTUS did what I asked him)”. How is Trump “involved”? Barr basically said, “I can’t fire this guy without your official approval, and Trump said OK -whatever you want”.

    The decision was Barr’s.

    I’m at a loss why Berman acted as he did, Barr was trying to find him another job and he pulls this crazy stunt. And I don’t believe Trump can parachute people into US Attorney positions, or the FBI, or whevever, and they’ll stop on-going investigations. It hasn’t worked like that for the last 3.5 years, and it won’t work now. Its why all the nonsense about Trump firing Comey to stop the investigation into Trump-Russia never made any sense. Acting Director McCabe hated Trump even more than Comey, and he replaced Comey! And even if McCabe had been fired, all the lower level people would’ve continued the investigation. The same will be true of SDNY.

    rcocean (fcc23e)

  93. 92
    But almost all of the rioters didn’t even cross borough lines.

    Kishnevi (9f11db)

  94. I’m confused about this ‘Only the President can fire Berman”. If that’s true than why did Nixon have to get someone at DoJ to fire Cox in the Saturday night massacre? Why did Trump need Sessions to sign off on firing Comey.

    rcocean (fcc23e)

  95. Dave@89 – DJT’s best campaign theme at the moment is that he is the LAW AND ORDER prez. He simply must demonstrate an aggressive pattern of enforcement and prosecution of civil unrest. He’s in enough trouble for his conscious failure to toughen immigration enforcement.

    Ed from SFV (f64387)

  96. If that’s true than why did Nixon have to get someone at DoJ to fire Cox in the Saturday night massacre?

    According to Wikipedia, it was part of the “compact” Cox and Eliot Richardson agreed to as a condition of Cox accepting the position that he could only be dismissed by the AG, and only for “extraordinary improprieties”.

    Dave (1bb933)

  97. As to the question of why DJT is acting now…He has just installed a hatchet man in whatever the heck the personnel office is called to purge a bunch of swamp creatures. The other thing that occurs to me is that there are likely to be a bunch of investigations of the rioters in NYC (They’ve surely begun). DJT is gonna want a pitbull in the SDNY to cast as wide and punitive a net as possible. Barr may have told DJT that Berman would not be as “enthusiastic” about those potential prosecutions as they each would like.

    Far more likely is they want influence over an investigation of a Trump crony. Rudy?

    Patterico (115b1f)

  98. Further on the question of Cox, apparently he was appointed to a “career” position, which made him subject to dismissal by the AG, and only “for cause”.

    OTOH, US Attorneys are political appointees who normally serve at the pleasure of the POTUS.

    Dave (1bb933)

  99. UPDATE x7:

    Patterico (115b1f)

  100. Berman might want to invest in a gas mask.

    Dave (1bb933)

  101. Ready!
    Fire!
    Aim!

    The fast-moving developments seemed to catch by surprise Senate Judiciary Chairman Lindsey Graham, a close ally of Trump’s and Barr’s, who said Saturday he had not been told about the effort to fire Berman.

    And in a significant announcement Saturday, Graham announced that he will honor tradition to let home-state senators sign off on a replacement for Berman’s post, meaning that Democrats essentially have veto power over a replacement to a position considered the most powerful US attorney job in the country.

    Dave (1bb933)

  102. Pat@100 That is certainly the consensus.

    However, the degree to which Berman is fighting this points to an overall “resistance” to the AG. Please also recall how far the Obama appointee to the SDNY took his fight against DJT’s demand for resignation.

    From a Trumpian/Barr perspective, someone blew it by recommending Berman, just as Sessions screwed the pooch by installing Rosenstein.

    Ed from SFV (f64387)

  103. Robert Barnes puts it like this.

    There is no meaningful dispute that the President has the power to remove #Berman from office at #SDNY. Even Carter’s Office of Legal Counsel for the DOJ admitted as much, just as case-law coequally confirms.

    https://www.justice.gov/file/22221/download

    I believe this satisfies that President Trump fired Berman and Trump is out of it.

    #87 I don’t understand your comment about “Liars”. Trump says “i’m not involved” Barr says “I asked the president to fire him (and the POTUS did what I asked him)”. How is Trump “involved”? Barr basically said, “I can’t fire this guy without your official approval, and Trump said OK -whatever you want”.

    The decision was Barr’s

    Tanny O'Haley (8a06bc)

  104. UPDATE x8: And thus ends the saga. Now that his deputy is taking over, Berman is stepping aside.

    Patterico (115b1f)

  105. From a Trumpian/Barr perspective, someone blew it by recommending Berman, just as Sessions screwed the pooch by installing Rosenstein.

    It’s so hard to find corrupt help nowadays.

    Dave (1bb933)

  106. Did Trump sign a letter? Did he say “you’re fired” and then forget? How does firing happen? Did Barr forge Trump’s signature? Either Trump fired him or he didn’t. If he did, then he wouldn’t have said he wasn’t involved.

    JRH (52aed3)

  107. WHOA: Trump Attempts Friday Night Massacre; Berman Falls Directly on His Face

    More accurate?

    BuDuh (bc7703)

  108. Either Trump fired him or he didn’t. If he did, then he wouldn’t have said he wasn’t involved.

    Not sure if serious.

    Dave (1bb933)

  109. But almost all of the rioters didn’t even cross borough lines.

    Almost only counts in horseshoes and hand grenades…

    Colonel Haiku (2601c0)

  110. Now we can hear what Berman really thinks about Barr.

    Paul Montagu (d27749)

  111. On to teh next Outrage!

    Colonel Haiku (2601c0)

  112. 113… who gives a rip…

    Colonel Haiku (2601c0)

  113. WHOA: Trump Attempts Friday Night Massacre; Berman Falls Directly on His Face

    More accurate?

    Nope.

    Patterico (115b1f)

  114. It flew…

    Colonel Haiku (2601c0)

  115. 113… who gives a rip…

    Well, you gave enough of a rip to reply.

    Paul Montagu (d27749)

  116. UPDATE x9:

    Patterico (115b1f)

  117. 118… teh Resistance doesn’t carry much weight these days… rinse, repeat.

    Colonel Haiku (2601c0)

  118. And the Bolton book is no longer in the headlines.

    DRJ (aede82)

  119. Sounds like Berman leveraged his agreement to get the replacement he wanted (wonder what else might have been included in that?). 120 days from July 3 takes us almost to the inauguration.

    Nic (896fdf)

  120. @121 It’s get a replay on the 23rd when it officially goes on sale.

    Nic (896fdf)

  121. I wrote a new post to explain why anyone who thinks Berman lost this round is dead wrong. He won.

    Here’s the tweet with a link to the new post:

    Patterico (115b1f)

  122. Peter Rosenzweig writing at The Atlantic agrees with you that this is about protecting Trump, et al, from corruption investigations in NY.

    DRJ (aede82)


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