DOJ attorney refuses to resign as announced by Attorney General Barr


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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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8 comments

  • David M. Cook

    Just like that weasel Peter Struck/Stroke/Smirk, who testified before Congress with the attitude that he was ”getting away with it“ and there‘s nothing you can do about it. These folks need to go to jail to deter others like them.

  • wayne

    David-
    Good stuff.

    In the Alternate Universe, Geoffrey has already been rendered off-shore.

    Hans Hermann Hoppe
    “Absurdistan”
    2018
    https://youtu.be/8CvbDOJT1ro
    4:33

    “They should all be hung, rot in jail, or be forced and busy making compensation.”

  • Rose

    It’s one thing to learn that you have been fired via tweet, but it is an entirely different thing to learn that you have resigned via a DOJ press release. Isn’t resignation supposed to be a voluntary process and one you are aware of having taken? Yes, a resignation can be requested, but that is usually done as a courtesy and is backed up with the threat of dismissal, and in this particular case, the underlying threat appears to be any empty one.

    Please correct me if I have my facts wrong, but isn’t the only reason the administration finds itself in this position is that it has taken more than three years to finally nominate a new US Attorney for SNDY?

    When Preet Bharara was fired in March 2017, Joon Kim replaced him in an acting capacity — a position limited to 300 days. When that expired with still no nomination, Geoffrey Berman was appointed as interim US Attorney, a position statutorily limited to 120 days. When April 2018 rolled around with still no nomination submitted to the Senate, the Judges of the Federal District Court in Manhattan unanimously ordered Berman’s judicial appointed acting US Attorney to serve until a replacement was confirmed by the Senate.

    Yesterday — more than 39 months after the initial vacancy — it was announced that Jay Clayton (current SEC Chairman) would soon be nominated and that the NJ US Attorney would serve as interim SDNY US Attorney until he was confirmed. But since Mr. Berman’s current position arises from the court order, it is not at all clear that he can be removed by the DOJ before that confirmation.

    Questions:
    * Was the Manhattan Federal District Court order judicial overreach? It was supposedly done under the authority of 28 USC 546(d), but I’ve not looked at that code and I don’t recall if the administration complained at the time.

    * Are there any legal means for the administration to remove a judicially appointed acting US Attorney without cause? What about with cause? (Of course they could have pushed a replacement through comfirmation at any point, but they have a long history with numerous positions of announcing a nominee but never forwarding that nomination to the Senate, apparently preferring the flexibility of temporary and unconfirmed acting and interim officials.)

    * Is there modern precedent of nominating for US Attorney someone who, like Mr. Clayton, has never before served as a prosecutor?

    * Why now? Is there anything behind reports that this is in response to the SDNY’s continued investigation of Mr. Giuliani?

  • Rose: You are still using the email address of a woman who says she is not you. Please either provide a different email address when requested, or explain this situation to me properly.

    Otherwise, I will very reluctantly will have to consider blocking you. I can’t have someone posting here using another person’s email address.

    Note that I am writing this even though I actually agree with much of what you write above. You are illustrating the basic weakness of Trump in his unwillingness to take real control over the people under him.

  • Rose: I just realized that the address you gave is slightly different than before, so ignore my harangue in the previous comment.

  • Col Beausabre

    Hmmmm…..I thought the power of the president to fire a member of the executive branch was settled in the affirmative by the attempted impeachment of Andrew Johnson and subsequent Supreme Court rulings.

    “In 1887, the Tenure of Office Act was repealed by Congress, and subsequent rulings by the United States Supreme Court seemed to support Johnson’s position that he was entitled to fire Stanton without congressional approval. The Supreme Court’s ruling on a similar piece of later legislation in Myers v. United States (1926) affirmed the ability of the president to remove a postmaster without congressional approval, and stated in its majority opinion “that the Tenure of Office Act of 1867…was invalid.””

  • James Street

    Barr is draining the swamp and has to play this strategically.

    Barr’s follow up letter to Berman:
    https://www.washingtonpost.com/context/read-attorney-general-william-barr-s-letter-to-geoffrey-berman/aa46f172-b1bd-4edb-84c0-75ceb219e50a/

  • Cotour

    Oh it is a sticky and treacherous game of chess we are all witnessing as the swap creatures fight for their long held positions.

    Barr appears to be ready, willing and able to take care of the business that needs taking care of. Two thumbs up Attorney General William Barr.

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