The swamp continues to win: Today attorney general William Barr announced that U.S. attorney Geoffrey Berman, who has overseen a number of investigations and witch hunts against Trump associates (including his lawyer Michael Cohen), was resigning.
This evening Berman denied he was resigning, stating that he had no intention of leaving his post until the Senate approves his successor.
I have no idea what is going on here, but if Barr is supposed to be in charge, it sure doesn’t look like it. Instead, it looks like this member of the anti-Trump swamp, recognizing Trump’s weakness during the Wuhan panic and the recent anti-American riots, has decided he can defy his superiors and get away with it. And even if Trump does fire him, he will benefit financially because he knows the leftist Democratic press will pour money into his pockets for being a Trump opponent.
UPDATE and more proof the swamp is winning: Senator Lindsey Graham (R-South Carolina) has now blocked Trump’s nominee (which is for the NY office of the Justice Department), claiming that it must first be approved by New York’s senators.
The article also makes the incredible claim that Trump, the sitting president of the United States and with whom Article II, Section 1, of the Constitution clearly states holds that executive power, cannot fire Berman.
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:
“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,” — Steve Vladeck (@steve_vladeck) June 20, 2020
This Vladeck then adds
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.
If we have reached the insane situation where a Republican President can no longer fire those under him, then our Constitutional government is truly dead.
UPDATE: Trump has now fired Berman. We shall see whether the courts and the swamp will let that action stand.
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