Barr v. Berman: The Constitutional Conundrum.

In a previous article I argued that Geoffrey Berman was completely within his legal rights to defy Barr’s attempt to fire him. This is because under 28 U.S.C. § 546(d) Berman as interim appointee was entitled to serve until the vacancy is filled by a person confirmed by the Senate. In another forum a commentator linked a series of tweets from Harry Litman, a legal consultant for the Los Angeles Times, arguing that this statute might unconstitutionally infringe on Article II’s vesting of executive power in the President. Mr. Litman cited the Supreme Court’s case of Myers v. United States as providing a “strong argument” for this position.

The power to appoint executive branch officials is one of the most significant of the Presidency. However, it is subject to an important limitation in that for “Officers of the United States” this must be done “by and with the advice and consent of the Senate.” U.S. Const. Article II, Section 2, Clause 2.

Myers v. United States is a 1926 Supreme Court case where the President fired the Postmaster General who had been confirmed by the Senate. A statute at the time said the President had to gain the advice and consent of the Senate when removing the Postmaster General from office. The Supreme Court determined this requirement unconstitutional. I quote:

“the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate.” (emphasis added)

The court seems to suggest that “inferior officers” never confirmed by the Senate are subject to rules of removal established by Congress:

“Congress is only given power to provide for appointments and removals of inferior officers after it has vested, and on condition that it does vest, their appointment in other authority than the President with the Senate’s consent.”

In fact, the court makes clear “the remedy for the evil of political executive removals of inferior offices is with Congress by a simple expedient” of statutory restrictions on such removal.

Put simply, there are two classes of government officials. The first are those nominated by the President and confirmed by the Senate. Once so confirmed they serve at the pleasure of the President and may be fired by the President at anytime, for any reason. The second class are those “inferior officers” not confirmed by the Senate. Since their very creation is dependent on Congressional action, the rules for their removal are as well.

From a checks and balances perspective, this makes sense. The Congressional check on powerful appointments is Senate confirmation. With that input the Senate does not control removal, merely the power to consent to the next appointment. Where that critical check does not exist for “inferior officers” not confirmed by the Senate, Congress can by statute create other checks.

Without this a President, particularly this President, could abuse his authority, and circumvent the Constitutional checks, by appointing “acting” or “interim” officials not requiring Senate confirmation. For a President respecting the Constitutional balance this would not be a problem. A President not respecting Constitutional balance might use the title of “acting” or “interim” indefinitely to avoid the Senatorial check on Presidential appointment power mandated by the Constitution. This was a central point of my prior article focusing on the “karma” of Trump’s avoiding Senate confirmation coming back to bite him.

A review of the legislative history behind 28 U.S.C. § 546 makes clear that the limitations it imposes were deliberate and rooted in precisely this concern for Presidential abuse of interim and/or acting officials. Concerned that Presidents might successively appoint interim United States Attorneys to avoid the confirmation process, Congress limited a President’s ability to indefinitely appoint interim United States Attorneys.

The President’s appointment of an interim United States Attorney is only good for 120 days. After that the district court appoints one until the vacancy is filled by a person confirmed by the Senate.

This is what happened with Berman. The Trump Administration appointed him as interim United States Attorney (after firing his predecessor) initially, but after 120 days the judges for district appointed him until the vacancy is filled by someone confirmed by the Senate. Thus, Trump did not really appoint Berman, the United States District Court of the Southern District of New York did. Trump didn’t hire Berman, and Trump can’t fire him either.

The legislative history contained in House Report 110–58 makes clear that Congress deliberately constructed this statute in this manner to prevent the potential Presidential abuse of power by using interim appointments to circumvent the advise and consent provisions of the Constitution. In the words of the report, the provisions were necessary to close “a possible
loophole that could permit United States Attorneys appointed on an interim basis to serve indefinitely without Senate confirmation
.”

The report noted that “Sensitive investigations and prosecutions, most especially those of political or other public figures, should never be improperly derailed by a change of administration.”

The law was written as it was to prevent a President like Trump from abusing power precisely as he is trying to do. The Senate was never able to test Berman’s commitment to independence through the confirmation process. For the job of United States Attorney, the concern for that independence, and the concern to avoid Presidential abuse was so high, that power to appoint interim United States Attorneys was largely removed from the President and given to the courts.

Trump can get “his man” in to the job by allowing the Senate to exercise its Constitutional check on whoever that is. Having avoided that Constitutional process he no longer receives the benefits it affords him that includes the unilateral power to remove from office someone who went through it.

EDIT & UPDATE

Attorney General Barr has sent a letter to Berman advising him that Trump has personally fired Berman. This claim was contradicted minutes later on live TV as Trump declared “I’m not involved.” So the fiasco of Administration chaos continues.

Barr’s letter cites two cases as standing for the proposition that the President can fire an interim United States Attorney. I just reviewed the more recent of the two cases cited by Barr, U.S. v. Hilario. The case does indeed say the following:

This is particularly so because, insofar as interim United States Attorneys are concerned, the Executive Branch holds all the trump cards. For one thing, the President may override the judges’ decision and remove an interim United States Attorney. See 28 U.S.C. § 541(c).

Okay, so let’s do as suggested and actually see 28 U.S.C. § 541(c). It states:

(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c) Each United States attorney is subject to removal by the President.

Put simply, it effectively defines United States Attorney as a person confirmed “by and with advice and consent of the Senate” and appointed by the President. Trump neither appointed Berman nor was Berman confirmed by the Senate. It seems impossible that clause © can apply to Berman when clause (a) does not. The Court in Hilario was plainly wrong by its own cited source.

Related Story: “When Karma Strikes: The Facts and Law of Berman’s Humiliation of Attorney General Barr.”

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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