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To recap:

1) Berman was appointed under 28 U.S.C. § 546(d).

2) That statute contemplates that he keeps his job until a permanent successor is confirmed by the Senate.

3) 28 U.S.C. § 541(c) says U.S. Attorneys are subject to removal by the President.

So the statutes conflict.
One last point:

Because Berman was appointed under 546(d), even if the President can remove him, he can only be replaced by:

1) Someone nominated by the President & confirmed by the Senate; or

2) Someone *else* appointed by judges under 546(d).

Carpenito is neither of those.
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Steve Vladeck
@steve_vladeck
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.
Finally, I take the point that Berman technically isn't an *acting* U.S. Attorney, and is instead *the* U.S. Attorney under 546. That doesn't change the constitutional analysis (he's still an inferior officer). The statutory question reduces to whether 546(d) overrides 541(c).
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Steve Vladeck
@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). Image
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.
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Steve Vladeck
@steve_vladeck
According to AG Barr, this vague statute—32 U.S.C. § 502(f)—is the source of the President’s authority to use out-of-state National Guard troops *without* federalizing them.

If he’s right, it seems the President—or SecDef—could use such troops at any time for any purpose. Yikes.
Here’s Barr’s letter to Mayor Bowser in which he invokes 32 U.S.C. § 502(f) as the sole basis for requesting out-of-state Guard units to come to D.C.:

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