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.