Thread by @steve_vladeck

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).

Of course, the Trump DOJ may argue that § 546(d) is unconstitutional insofar as it prevents the President from removing Berman, but that’s complicated here by Berman being an *Acting* U,S. Attorney—over whose appointment and removal Congress can arguably exercise *more* control.

As @marty_lederman points out, there’s a 1979 OLC opinion concluding that the President—but *not* the Attorney General—can fire a U.S. Attorney appointed under § 546(d):

justice.gov/sites/default/…

OLC isn’t a court, of course—and even in its view, Barr couldn’t fire Berman.

And here’s a federal district court in 2009 holding that 546(d) requires a Senate-confirmed successor—and isn’t unconstitutional insofar as it so requires:

casetext.com/case/us-v-tayl…

The First Circuit has noted that the *President* can remove a U.S. Attorney appointed under 546(d)—although the issue was not squarely presented there:

casetext.com/case/us-v-hila…

So there’s a debate over whether the President can fire Berman, but seeming consensus that Barr can’t.