When Karma Strikes: The Facts And Law Of Berman’s Humiliation of Attorney General Barr.
The Trump Administration roils America from one Constitutional crisis to the next. Today we deal with the attempted firing of Geoffrey Berman, the United States Attorney for the Southern District of New York (SDNY), a district known to be investigating Trump associates, including Rudy Giuliani. The district also investigated, indicted, and convicted prior Trump personal attorney, Michael Cohen, while effectively naming Trump himself (aka “Individual One”) as an un-indicted co-conspirator to some of Cohen’s crimes.
In Friday Night Massacre fashion, late Friday night Attorney General Barr issued a press release saying that Berman was “stepping down.” This was a lie to the American people.
Berman is not “stepping down,” did not agree to any such thing. Barr was trying to fire Berman. Berman found out about this skullduggery only from the press release itself. Berman then issued a statement making clear that he is not resigning, while insinuating that Barr’s attempt to fire him was an effort to obstruct politically sensitive investigations current underway. This is Berman’s full statement and those implications are not well concealed:
“I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor — and intend to ensure that this Office’s important cases continue unimpeded.”
What happens next? What will Barr do? It doesn’t help that Barr also announced he intends to replace Berman with a longtime friend who has never been a prosecutor. In his press release, Barr did allow a transition period, saying the appointment of Berman’s replacement, Jim Clayton of the SEC, would be effective July 3. We have until then for this to get worked out.
On July 3d will Barr try to send U.S. Marshalls to forcibly escort Berman out of the office? I doubt it. Keep reading.
Berman says he is not leaving until “a presidentially appointed nominee is confirmed by the Senate.” Does Berman have a legal basis to make that assertion? As it turns out, he does. To understand how, we need to follow the path of how Berman came to hold his position. This is a story of Trump’s avoiding the Senate confirmation process by hiring people on an interim or “acting” basis coming back to bite him.
Berman’s position was previously held by Preet Bharara. Bharara was dismissed from the position in a controversial purge of U.S. Attorneys in March 2017. Given the controversy surrounding Bharara’s firing, Trump wanted to appoint a new person for the SDNY without going through the Senate confirmation process. Berman, who donated to Trump’s Campaign and worked in the Trump transition team, was tapped for the job of interim United States Attorney for the SDNY.
Now we get into the law. The relevant statute is 28 U.S.C. § 546, providing for filling vacancies in United States Attorney positions. Section (a) states that “the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.” That is what happened with Berman. Attorney General Sessions appointed Berman as an interim United States Attorney to replace Bharara. Trump never did, and still has not, formally nominated a permanent U.S. Attorney to fill the vacancy by going through the Senate confirmation process.
Section (c) limits such an interim appointment to either when a new United States Attorney is Senate confirmed, or 120 days, whichever is shorter. Obviously that 120 days under Subsection (c)(2) has passed. Time to move on to the very interesting Section (d).
“(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.”
That’s what happened with Berman. As the 120 days expired, the judges for the Southern District of New York unanimously appointed him until such time as the vacancy is filled by a person confirmed by the Senate. Berman is perfectly within his rights to stay in his job until the vacancy is filled by a person confirmed by the Senate. Barr and Trump may not like it, but that’s the law.
This was a high stakes move by Barr that smacks of desperation. He put his credibility on the line, and was revealed by his subordinate to have lied to the American people as the subordinate publicly defies and taunts him in return. Barr had to know this was a risk, and he did it anyway. Why? One explanation, hinted at in Berman’s statement, is that Barr knows of indictments coming down (perhaps of Rudy Giuliani or members of Trump’s family) that Trump wants to stop. If so, this move was nothing short of obstruction of justice.
Barr’s only legal recourse is to have Trump formally submit Clayton’s name to the Senate for confirmation and ask Mitch McConnell to railroad it through. That strategy has its own risk. Some Republican Senators may not go along with it. Names like Romney, Collins and Murkowski come to mind. Again, Trump’s habitual circumventing of the Senate confirmation process presents us with a delicious and well deserved case of karma.
In the meantime, Berman stays right where he is until such confirmation actually happens.
