Barr Can’t Fire Berman, Trump Can, Says Obscure DOJ Memo
Barr Can’t Fire Berman, Trump Can, Says Justice Department Memo
(Bloomberg) -- The resolution to a standoff between Geoffrey Berman, who has overseen investigations of President Donald Trump’s allies, and Attorney General William Barr may be contained in an obscure 1979 memo by the Justice Department that Barr heads.
The controversy has created turmoil in what may be the most important federal prosecutor’s office in the U.S., including the specter of two people simultaneously claiming to hold the top job while indicted defendants attempt to have charges against them thrown out as illegitimate.
Barr announced Friday night that Berman, the U.S. attorney in Manhattan, was “stepping down” after 2 1/2 years on the job and would be replaced with U.S. Securities and Exchange Commission Chairman Jay Clayton. Berman hit back with a statement saying he hadn’t resigned, had no intention of doing so and intended to stay in office until the U.S. Senate confirms his replacement. That’s a process that could take weeks or months and require contentious hearings before it’s completed -- if it gets off the ground at all.
Barr initially said Berman will be replaced on July 3 by the U.S. attorney for New Jersey, Craig Carpenito, who would be in charge on an interim basis until the Senate confirms a permanent replacement. The White House announced Trump’s nomination of Clayton late Friday.
Then matters became even more murky. Barr said in a letter to Berman on Saturday that Trump had fired him. The attorney general dropped the plan to appoint Carpenito temporarily, saying Berman would instead be replaced by his deputy, Audrey Strauss. Later, Trump denied firing Berman. Talking to reporters on his way to a campaign rally in Tulsa, Oklahoma, Trump said, “I’m not involved.”
“If the scandal is Trump and Barr trying to shut down investigations, then who replaces Berman is a huge story,” said Stephen Vladeck, a professor at the University of Texas School of Law.
The 1979 memo written by the Justice Department’s Office of Legal Counsel appears to answer the question of who can remove Berman. The president can fire a U.S. attorney in Berman’s position, while the attorney general can’t.
The confusion lies in the unusual circumstances of Berman’s appointment. Trump’s former attorney general, Jeff Sessions, tapped Berman in January 2018 to fill the post on an interim basis until a Senate-confirmed candidate could take his place. But Trump didn’t forward a nominee for the post to the Senate.
And under federal law, Berman’s appointment was for no more than 120 days. So the judges of the Manhattan-based federal court, acting under a federal law that gives them the power to fill the seat in such circumstances, appointed Berman to remain in his position.
The 1979 COL memo directly addresses the question of whether a U.S. attorney appointed by local federal judges can be fired by the president, the attorney general, or the judges who appointed him. In the memo, former Assistant Attorney General John M. Harmon concluded that only the president has the power.
Court Challenges
But the Justice Department’s memo may not be the last word. A federal judge in New York last year rejected arguments that a different OLC memo shielded Trump’s tax records from subpoena in a criminal investigation by a state prosecutor for Manhattan. That case is currently under consideration by the U.S. Supreme Court. And the law concerning U.S. attorney appointments was amended in the years after the memo was written.
Vladeck said in an interview that it’s clear Barr can’t legally fire Berman, though not clear whether Trump can. And Trump probably lacks the legal authority to name Carpenito to take Berman’s seat temporarily.
A questionable appointment will be challenged in court, possibly by a criminal defendant seeking to have charges thrown out, said Vladeck. It’s unlikely any of the judges in Manhattan -- who voted to have Berman continue in the job -- would be able to hear the case. It might have to be considered in another district, such as the one based in Brooklyn, he said.
Vladeck said the Manhattan prosecutor’s office could even have two people claiming to lead it, similar to a situation at the Consumer Financial Protection Bureau, which in 2017 had two officials claiming to be its legitimate leader, though Barr’s Saturday plan for Berman’s deputy to take over would avoid those problems, he said.
“Nerds like me will fixate on the technical legal questions here -- can the president fire a judicially appointee U.S. Attorney; and, if so, can he also replace him,” Vladeck said in a tweet on Saturday. “But don’t lose sight of the bigger story here -- this stinks to high heaven. Finding out *why* this happened is the key.”
©2020 Bloomberg L.P.