Patterico's Pontifications


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


Update: Navy Upholds Firing of Captain Brett Crozier

Filed under: General — Dana @ 2:08 pm

[guest post by Dana]

The AP reports:

In a stunning reversal, the Navy has upheld the firing of the aircraft carrier captain who urged faster action to protect his crew from a coronavirus outbreak, the Navy’s top officer said Friday.

Adm. Mike Gilday, the chief of naval operations, also extended the blame for the ship’s pandemic crisis, delaying the promotion of the one-star admiral who was also onboard the USS Theodore Roosevelt — concluding that both men made serious errors in judgment.

The ship’s two top officers, said Gilday “failed to tackle the problem head on and take charge,” as the virus spread throughout the ship, and their actions “fell well short of what we expect” of those in command.

Gilday’s decision to hold both Capt. Brett Crozier and his boss, Rear Adm. Stuart Baker, accountable is a confirmation of concerns expressed by top Pentagon officials who demanded a deeper investigation last month when the initial probe recommended Crozier’s reinstatement as the ship’s captain.

The investigation, done by Adm. Robert Burke and endorsed Friday by Gilday, defends the abrupt turnaround on Crozier saying that the more detailed probe uncovered poor decisions he made that failed to stem the outbreak or properly communicate the escalating crisis to senior commanders. It also concludes that the ship’s slow response to the virus was not just his fault, and that Baker also failed to take decisive actions to address the problem.

Gilday told Pentagon reporters Friday that if he’d had all the details earlier when he made the initial decision to reinstate Crozier, he would have relieved him off command and pulled him from the ship.


Twitter Beclowns Itself Again

Filed under: General — Patterico @ 8:29 am

Yesterday Donald Trump tweeted this satirical video:

It uses the well-known viral video of the two kids embracing and not noticing their race, to make a point about deceptive editing of videos. You don’t have to think the point is well taken or the satire funny to recognize it as satire. (The misspelling of “toddler” helps too. If you thought this was a real CNN video, I wonder how you can afford Internet service after giving your bank account information to a long train of Nigerian email scammers.) A functioning brain is really all you need.

It does not show up in the embed of the tweet above, but Twitter put a “Manipulated Media” warning under Trump’s tweet:

Manipulated Media

The link initially went to a page with Twitter’s Synthetic and manipulated media policy:

You may not deceptively promote synthetic or manipulated media that are likely to cause harm. In addition, we may label Tweets containing synthetic and manipulated media to help people understand their authenticity and to provide additional context.

You should be able to find reliable information on Twitter. That means understanding whether the content you see is real or fabricated and having the ability to find more context about what you see on Twitter. Therefore, we may label Tweets that include media (videos, audio, and images) that have been deceptively altered or fabricated. In addition, you may not share deceptively altered media on Twitter in ways that mislead or deceive people about the media’s authenticity where threats to physical safety or other serious harm may result.

Now it goes to this article:

Video being shared of CNN report on toddlers is doctored, journalists confirm

Multiple journalists confirmed that the video, which was shared by President Trump, is edited and features a fake CNN chyron. The original CNN story, which is from 2019, reported on a friendship between two toddlers.

“Journalists confirm.” Well thank God we have journalists to confirm that obvious satire never really happened!

Donald Trump lies all the time. Provably. On Twitter. Yet when they decide to deface his tweets with warnings, it’s always on something that makes Twitter looks extra stupid for doing it — like a warning on a prediction about the results of mail-in ballots, or obvious satire like this.

It’s as if they want to help him.

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