If you missed Jazz’s post this morning about the attempted firing of Geoffrey Berman, the U.S. Attorney for the Southern District of New York, read it now. Even with everything else going on, it’s apt to be one of the biggest stories of the coming week. And maybe for weeks thereafter.
Let’s start with the latest, a surprising show of spine from Trump ally Lindsey Graham at an inopportune moment. Graham is up for reelection in four months. He doesn’t want Trump or Trumpers mad at him. And yet:
“Blue slips” are a Senate custom in which the senators who represent a state in which a vacancy is being filled are given some degree of power over whether the nomination should proceed. Not necessarily veto power; blue slips have lost some of their authority over the last few decades. But it sounds from Graham’s statement like he *is* prepared to let Chuck Schumer and Kirsten Gillibrand exercise effective veto power over Berman’s replacement.
And needless to say, that veto power will be exercised. Vigorously:
Senate Majority Leader Chuck Schumer calls for inspector general probe into AG Barr’s attempted firing of US Attorney for SDNY and for Jay Clayton to remove himself as nominee to “stand up to this corruption”.
— Hugo Lowell (@hugolowell) June 20, 2020
Let’s back up. Why is Berman’s attempted firing a big deal, and why does Schumer’s veto place Barr and Trump in an unusual pickle? First, it’s a big deal because Berman’s office is the one that’s created the most legal headaches for Trump cronies:
Mr. Berman’s office has taken an aggressive approach in a number of cases that have vexed the Trump administration, from the prosecution and guilty plea obtained from Mr. Cohen to a broader investigation, growing out of that inquiry, which focused on Mr. Trump’s private company and others close to him.
Over the last year, Mr. Berman’s office brought indictments against two close associates of the president’s current lawyer, Mr. Giuliani, and began an investigation into Mr. Giuliani himself, focusing on whether his efforts to dig up dirt in Ukraine on the president’s political rivals violated laws on lobbying for foreign entities.
Mr. Berman’s office also conducted an investigation into Mr. Trump’s inaugural committee, subpoenaing financial and other records as part of a broad inquiry into possible illegal contributions from foreigners.
And not just domestic cronies. According to John Bolton, when Erdogan asked Trump for help with the DOJ’s investigation of the Turkish bank Halkbank, Trump “told Erdogan he would take care of things, explaining that the [New York] southern district prosecutors were not his people but were Obama people, a problem that would be fixed when they were replaced by his people.” Berman isn’t an “Obama person” — he took office under Trump — but if he’s resisting political pressure from the top to do favors from the president then Trump might very well view him as a political enemy. Which gets to last night’s central mystery: Why did the attorney general move to fire the head of the SDNY four months out from an election, late on a Friday? And why did he lie about it, insisting that Berman was “stepping down” when Berman was doing no such thing?
— US Attorney SDNY (@SDNYnews) June 20, 2020
I almost can’t process how insane it is for one of the country’s top federal prosecutors to call out the attorney general for lying about the circumstances of his dismissal, never mind doing it in an official statement from the SDNY. But come back to the key question: Why did Barr try to fire him, why now, and why in such an apparently underhanded manner? Normally one might speculate that scandal was swirling around Berman and the DOJ was trying to nudge him out gracefully without the details surfacing. But Barr reportedly offered to make Berman head of the DOJ’s Civil Division as a lure to get him to “step down” from the SDNY, so it can’t be scandal. What is it, then?
Is Berman maybe investigating something that Trump and Barr don’t want him to investigate? Barr’s Department has looked so shady this year in trying to back off on sentences for Trump cronies like Mike Flynn and Roger Stone that the suspicion inevitably arises here that he was trying to do the same thing for Giuliani or the inaugural committee or Halkbank/Erdogan — or for some other politically connected target of an investigation that we don’t even know about yet. Note the line in Berman’s statement about moving forward with investigations “without delay or interruption.” Is that boilerplate, or is he hinting that he too suspects Barr is firing him in order to short-circuit some ongoing probe for political reasons? Don’t forget either that before the DOJ gave Stone and Flynn their sweetheart sentencing deals Barr removed Jessie Liu, the U.S. Attorney in D.C. who’d supervised those cases, and replaced her with one of his own close advisors, Timothy Shea. Maybe that was the plan with Berman too. Maybe Barr wanted to intervene in some politically charged case in the SDNY, thought Berman might resist, and needed him replaced with someone more willing to follow questionable orders.
There’s another reason why trying to fire Berman is a big deal, though. Normally U.S. Attorneys are appointed the same way other top federal officials are. The president nominates them, the Senate confirms them, and then they serve until the president or the relevant cabinet officer fires them. In this case that’s Barr, which means Berman is fired even if Schumer and Gillibrand decide not to allow his position to be filled, right? Actually, no. Trump never formally nominated Berman as U.S. Attorney for the SDNY after he fired Obama holdover Preet Bharara from the position. Then-AG Jeff Sessions appointed Berman to the vacancy for 120 days; eventually the federal district court for the SDNY made Berman’s appointment indefinite under a federal law that gives them the power to do so.
Why is that important? Because it probably means that Barr can’t fire him.
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.
— Gabriel Malor (@gabrielmalor) June 20, 2020
Can Trump fire Berman? Uh … probably. It would be strange and likely a violation of separation of powers if the head of the executive branch couldn’t fire an employee at the Department of Justice. (We went through this with Mueller, remember.) The fact that Berman was appointed by a federal court, not the president, adds a wrinkle, though. And federal law adds another wrinkle about how, exactly, a court-appointed U.S. Attorney is to be replaced:
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. pic.twitter.com/ZpmO2k3Z0l
— Steve Vladeck (@steve_vladeck) June 20, 2020
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.
— Steve Vladeck (@steve_vladeck) June 20, 2020
If Trump wants Berman out, the solution is simple — in theory. Just nominate someone new to be U.S. Attorney for the SDNY, which he and Barr have already done in the person of SEC Commissioner Jay Clayton, and let the Senate confirm that person. Berman will be out and Clayton will be in.
…except that, per Lindsey Graham’s statement, the Judiciary Committee won’t consider the nomination in this case unless Chuck Schumer and Kirsten Gillibrand allow it, which they won’t. That means Trump is effectively blocked from removing Berman by nominating a replacement. His only option for getting rid of him is to fire him personally and then win the inevitable lawsuit over whether he has the constitutional power to do that in the case of a U.S. Attorney who was appointed by a federal court.
To boil all of that down: Despite the Attorney General’s attempt to fire him, Berman’s still on the job today, investigating God knows what that Trump and Barr don’t want him to investigate, and there’s probably nothing Barr can do about it and *maybe* nothing Trump can do about it. Although, realistically, no court is going to allow that situation to abide. Berman needs to be accountable to someone; if he’s not accountable to Barr then certainly he’s accountable to Trump. One somewhat elegant way out of this would be for the federal district court in the SDNY to simply replace Berman themselves with Clayton as a courtesy to the president. But maybe the court doesn’t want to do that, fearing that Trump and Barr really are up to some sort of chicanery involving obstruction of justice, with Berman standing in their way. In which case we’re probably headed back to a Mueller doomsday scenario in which Trump fires a prosecutor who’s giving him and his friends trouble and the only remedy is for the House to decide whether to impeach. Again.
Exit question: Why would Lindsey Graham be a stickler about following the blue-slip policy in this case, knowing that it might make Berman effectively impossible to replace? He’s been criticized persistently by TrumpWorld for not using his power in the Judiciary Committee to serve the president’s interests, such as by aggressively investigating the Bidens. He’s going to be criticized again if he lets Schumer basically guarantee Berman’s job against Trump’s wishes. Maybe Lindsey’s worried that he’s seen as too close to Trump back home and wants to make a little show of independence? Hard to believe that might be true in a state as red as South Carolina, though. Conceivably he’s trying to protect Berman on the merits, because he’s rightly alarmed by this entire situation and what Barr and Trump might be up to. But that’s giving Graham an awful lot of credit after three and a half years of obsequiousness.
Update: Apparently recognizing that he doesn’t have the legal power to fire Berman, Barr has gotten Trump to do it. Berman’s out — probably.
Notice that the deputy U.S. Attorney, not Jay Clayton, is currently in charge. Two mysteries remain, one old and new. The old: Why did Barr (and Trump) want Berman out in the first place? What’s he done wrong that required him to be cashiered four months out from an election? And the new: Is Berman going to challenge Trump’s power to dismiss him? He’ll almost certainly lose that case, but note that there’s no Supreme Court precedent squarely on this point. Barr’s citations in the excerpt above are to a federal district court and a circuit court in another part of the country. What would John Roberts say?
Update: What? Trump didn’t fire him?
Trump on Berman: That’s all up to the AG. AG Barr is working on that. That’s his department, not my department but we have a very capable AG so that’s really up to him. I’m not involved. pic.twitter.com/FIqoZYpDNs
— Acyn Torabi (@Acyn) June 20, 2020
Update: Sounds like Berman won’t challenge the decision to fire him. And there may be a reason for that apart from the unlikelihood that he’d win in court.
BREAKING: Geoffrey Berman: “In light of" AG Barr’s decision "to respect the normal operation of law and have Deputy US Attorney Audrey Strauss become Acting US Attorney, I will be leaving the US Attorney’s Office for the Southern District of New York, effective immediately."
— NBC News (@NBCNews) June 20, 2020
The new acting head of the SDNY is Audrey Strauss, who’s well-regarded — and who was apparently overseeing the division’s Trump-related investigations. Trump and Barr have the power to get rid of Berman but, thanks to Lindsey Graham and Chuck Schumer, maybe not the power to install someone at the SDNY who’ll do their bidding. Berman might have relented in the belief that Strauss will continue the probes that he was trying to protect. Will Strauss be next?