Oh boy.
To recap, Trump wants Berman out of SDNY and a loyalist in because SDNY is investigating Trump's friends.
AG Barr offered Berman several prestigious jobs at Main Justice, including head of Civil Division, but Berman declined.
AG Barr offered Berman several prestigious jobs at Main Justice, including head of Civil Division, but Berman declined.
So AG Barr announced that Berman resigned. But Berman says he hasn't.
AG Barr also announced that the U.S. Att'y for New Jersey would be the acting U.S. Att'y for SDNY, something that obviously Berman is not prepared to accept.
AG Barr also announced that the U.S. Att'y for New Jersey would be the acting U.S. Att'y for SDNY, something that obviously Berman is not prepared to accept.
And if you're wondering how we got here, Berman was the choice of the *judges* of the SDNY to fill the SDNY U.S. Att'y slot after Trump left it unfilled too long, an unusual move made possible by statute.
Trump can fill the spot, of course, but until the Senate confirms a new U.S. Att'y for SDNY, it's Berman's job.
Which Trump friends are under investigation? Speculation says Giuliani in relation to his Ukraine work.
super-cringe
super-cringe
We live in extraordinary times. I didn't think I could be shocked anymore.
And in response to the "can he do that?" question, the statute says Berman serves "until the vacancy is filled."
As I wrote up-thread, yes, Trump can replace him, but he has to get the advice and consent of the Senate first.
As I wrote up-thread, yes, Trump can replace him, but he has to get the advice and consent of the Senate first.
One of the things that's so 👀 about this, is the administration literally argued this week in the Flynn litigation that everything is totally aboveboard, that there are no political shenanigans driving DOJ's reversals of position.
AG Barr on a Friday night: "hold my beer"
AG Barr on a Friday night: "hold my beer"
This is a great point. If Trump had appointed Berman the ordinary way, he could fire him the ordinary way.
But because Trump sat on the nomination, the district court judges got to make the appointment, stripping Trump of the power to fire him at will.
But because Trump sat on the nomination, the district court judges got to make the appointment, stripping Trump of the power to fire him at will.
On the one hand, I could go back to Elder Scrolls Online.
On the other, I could argue about separation of powers with twitter lawyers.
On the other, I could argue about separation of powers with twitter lawyers.
CORRECTED LINK: Oh here's an interesting catch. This is a short 1979 OLC opinion on who can remove a court-appointed U.S. Attorney.
Back then OLC said the president can, but the AG cannot. justice.gov/file/22221/dow…
Back then OLC said the president can, but the AG cannot. justice.gov/file/22221/dow…
Well, except for posting the wrong link for ten minutes, yes, I'm pretty great.
(The public OLC opinions are searchable. I just plugged in the statute.)
(The public OLC opinions are searchable. I just plugged in the statute.)
I don't think this OLC opinion is all that strong—they're resting the whole argument on whether the word "each" is surplusage?—but now I'm wondering if that matters.
OLC opinions are typically considered binding on executive branch officials (although this isn't uncontested).
OLC opinions are typically considered binding on executive branch officials (although this isn't uncontested).
Problem with OLC's position in this 1979 memo is that it does not give effect to all the words in the statute. Yes, 28 § 541 says "[e]ach [U.S. Att'y] is subject to removal by the President."
But § 546 says that a court-appointed U.S. Att'y serves "until the vacancy is filled."
But § 546 says that a court-appointed U.S. Att'y serves "until the vacancy is filled."
But, again, even if the OLC's opinion is utter crap, typically those get treated as binding within the executive branch.
It seems to me you can easily give effect to all the words in the statute by holding that Berman serves "until the vacancy is filled" by Trump nominating (and the Senate confirming) his replacement.
This "each" business does not have to refer to *types* of U.S. attorneys.
This "each" business does not have to refer to *types* of U.S. attorneys.
But, again, and I'm going to keep repeating this, even if OLC's opinion is utter crap, typically those get treated as binding within the executive branch (at least until OLC reverses itself, which it has done occasionally).
For folks asking "so what happens next?" the answer is "I don't know."
Ordinarily, when executive branch officials disagree, we don't get to see it in public. And you say "someone has to be right about the law," well, yes, but there's a live question about who gets to decide.
Ordinarily, when executive branch officials disagree, we don't get to see it in public. And you say "someone has to be right about the law," well, yes, but there's a live question about who gets to decide.
As I wrote before, the reasoning in that OLC memo is very weak. And because of the nature of OLC there may be additional memos on this question that haven't been made public.
And that's only the beginning of the problems here. Because the OLC's opinion (and my contrary opinion belowthread) rest on the statutory text.
There's a whole 'nother question though about separation of powers that OLC didn't wade into. (And which I don't want to go here.)
There's a whole 'nother question though about separation of powers that OLC didn't wade into. (And which I don't want to go here.)
When I say I don't know where we go next, I really don't know. That's based on the statutory and constitutional issues. But also because it depends on how far and how hard Barr, Berman, and Trump want to push this.
I imagine that if they push hard enough, we'll see litigation.
I imagine that if they push hard enough, we'll see litigation.
BTW, we're likely to see litigation over the question anyway because some of the people indicted and tried by the SDNY (or hell, sued civilly) after today are probably going to raise an issue of whether SDNY currently has authority to do that given the open leadership question.
Last note (I hope), that's the way out for textualists (there's that word again this week). The statutory text is clear that a court-appointed U.S. Att'y serves "until the vacancy is filled."
But a textualist could then say, "oh, but separation of powers."
But a textualist could then say, "oh, but separation of powers."
Nope. Folks, the entire Department of Justice is a creation of Congress, not the Executive. The U.S. Attorneys exist under the umbrella of the executive branch in the manner which Congress prescribed bc Congress said so.
Article I, sec. 8, cl. 18.
Article I, sec. 8, cl. 18.
