WHOA: Trump Attempts Friday Night Massacre; Falls Directly on His Face
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!
NEW: Geoff Berman statement:
“I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position" pic.twitter.com/L6PQCF9bdU
— erica orden (@eorden) June 20, 2020
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:
Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.
There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor). pic.twitter.com/xeRpvMRHWN
— Steve Vladeck (@steve_vladeck) June 20, 2020
Gabe Malor has an invaluable thread on the whole issue. Who is Trump trying to protect? Best guess is: Rudy “Crazy Eyes” Giuliani:
Which Trump friends are under investigation? Speculation says Giuliani in relation to his Ukraine work.
super-cringe
— Gabriel Malor (@gabrielmalor) June 20, 2020
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:
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.” — Barr— Katie Benner (@ktbenner) June 20, 2020
UPDATE x4: Here’s Barr’s letter. Very interesting. This may fly and it may not. Stay tuned.
NOW: AG Barr says in a letter to Manhattan US Attorney Geoffrey Berman that Trump has now officially fired him, and that's that, rejecting any argument by Berman that a judicial appointment means he can't be removed.
Previously: https://t.co/3Kil8GKQQv pic.twitter.com/y1fkXsAFDC
— Zoe Tillman (@ZoeTillman) June 20, 2020
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.
"I'm not involved." Trump continues his unbroken streak of public comments destined to undermine the position of his administration in litigation. (Trump is the only one who even arguably can remove Berman. Barr can't do it on his own.) https://t.co/e5FjZAzewh
— Patterico (@Patterico) June 20, 2020
UPDATE x7:
Here's the best possible argument I can envision as to how Trump's leaving the dismissal of Berman up to Barr could be upheld. From the 1979 OLC opinion. https://t.co/WB8YVRwnT3 pic.twitter.com/2wiMTxHGQX
— Patterico (@Patterico) June 20, 2020
UPDATE x8: And thus ends the saga. Now that his deputy is taking over, Berman is stepping aside.
And…Berman’s leaving pic.twitter.com/Ty8jajW6Jx
— Katherine Faulders (@KFaulders) June 20, 2020
Whether he had to or not, stepping down now that his deputy will take over is the right and honorable thing for Berman to do—something new and different for federal government officials in the last 18 hours. https://t.co/90cFLLNYnY
— Steve Vladeck (@steve_vladeck) June 20, 2020
UPDATE x9:
Berman left because Barr changed the identity of who would replace him to someone he could trust. If you're claiming it's because he knew all along that he had to leave regardless, then you have to explain why Barr caved on his replacement.
— Patterico (@Patterico) June 20, 2020