Posted on 06/20/2020 1:21:26 PM PDT by NobleFree
A standoff loomed over the purported ouster of Manhattan U.S. Attorney Geoffrey Berman Saturday as the hazy details of the move left in doubt the authority of Attorney General William Barr to replace him.
Meanwhile, the president of New York state’s largest bar group condemned the effort to remove Berman, and one former assistant U.S. attorney said the issue placed the Southern District in “uncharted waters.” Barr issued a statement late Friday night announcing Berman’s resignation, but in short order Berman denied he had resigned and said he would not abandon his job.
A second version of the Justice Department statement omitted any language about a resignation tendered by Berman, and it also did not say Berman was being removed. That sets up a likely dispute if Barr attempts to install Craig Carpenito, currently the U.S. attorney for New Jersey, as the top federal prosecutor in the Southern District on an acting basis.
That’s because Berman serves under Section 546(d) of Title 28 of the U.S. Code, which addresses the judiciary and judicial procedure. On April 25, 2018, the judges of the Southern District issued an order appointing Berman upon the expiration of the 120-day term after his interim selection by then-Attorney General Jeff Sessions.
Without a resignation from Berman or his ouster, there is no vacancy for Barr to appoint an acting U.S. attorney to fill.
A former acting U.S. attorney for the Eastern District of New York said Berman’s rejection of the resignation announcement may have stymied Barr. And he questioned the reasoning for the sudden Friday night announcement.
“Geoff Berman in the SDNY has called the Attorney General’s bluff: the statute for appointment and removal of U.S. attorneys [28 U.S.C. Section 541] , provides that the president, not the attorney general has the power to remove a court-appointed U.S. attorney,” said Kelly T. Currie, now a partner at Crowell & Moring. “It’s telling that Berman’s statement following Barr’s attempt to oust him by press release explicitly defended ongoing investigations in that office. Coming in the wake of Barr’s actions in the Roger Stone sentencing and seeking to dismiss the Michael Flynn case, it’s hard not to suspect that Barr’s move is anything but an effort to thwart investigations that could be damaging to the president or his associates.”
In his amended statement, Barr stuck to a July 3 start date for Carpenito. The second version also deleted a passage from the first statement that implied Berman would stay on to July 3 to aid in a transition to Carpenito.
One matter is clear: Under the court order appointing Berman, the Southern District judges said he could serve only until the nomination and Senate confirmation of a new U.S. attorney.
But there is a lack of clarity over whether the president or attorney general may remove a U.S. attorney installed by the district judges.
“As far as I know, I have never heard it employed,” said Elkan Abramowitz, a partner in Morvillo Abramowitz Grand Iason & Anello, and a former chief of the Southern District’s criminal division, of the removal of a U.S. attorney appointed by the court under Section 546(d).
“If Berman chooses to sue to keep his job, he will have great support from alumni of the Southern District U.S. Attorney’s Office who are interested in maintaining the historic independence of the office,” Abramowitz said.
Harry Sandick, a partner at Patterson Belknap Webb & Tyler and a former assistant U.S. attorney in the Southern District, said there are a number of possibilities for what could happen next.
“If [Berman] is terminated by the president, which hasn’t happened yet, it’s not clear that the president or the attorney general could pick his replacement,” Sandick said. “We’re in somewhat uncharted waters here, because most of the time … most presidents do what their predecessors have done, which is to use the Senate confirmation process to get a U.S. attorney in place.”
If President Donald Trump does terminate Berman, Sandick said Berman would probably have to leave the physical space of the U.S. Attorney’s Office in Manhattan. But Berman’s legal options could include seeking a writ of mandamus or a declaratory judgment that he is entitled to stay in the job.
In the interim, it may fall to the judges in the Southern District to name a replacement, Sandick said, or Berman’s deputy could fill in as acting U.S. attorney for up to 300 days, as Joon Kim did after former U.S. Attorney Preet Bharara was fired.
“We are in uncharted territory here,” Sandick said. The administration has forced lawyers and observers to think about lots of complicated issues that no one has previously thought about because they were resolved by the participants trying to act in good faith.”
If Barr’s announcement involved an attempt to interfere with one or more of the ongoing investigations in the SDNY, Sandick said it’s hard to say which case it would be.
“There are so many cases that have been reported on that have some connection to the president or his associates,” Sandick said. “The Giuliani investigation, the National Enquirer/Michael Cohen case, the inaugural committee case, who knows what else is out there—Deutsche Bank being investigated, Epstein being investigated. So it’s possible that it does have something to do with one or more of those cases. Ordinarily it would be easy to figure out, because there wouldn’t be many cases being handled concerning the president and his associates. That’s an unusual event.”
Regardless of what happens in the courts in the next few days, Sandick said Congress may want Barr to testify soon.
“It’s a complicated situation and we don’t really know what animates it, what’s driving it,” Sandick said. “So one way to figure that out might be for Congress to require the attorney general to come, under oath, explain why he said Berman was stepping down when Berman said that wasn’t true, explain why the president is making this decision or why Barr is making this decision.”
State Bar President Scott Karson condemned the attempt to replace Berman, saying politics has no place in the administration of justice.
“The important investigations being carried out by the Southern District of New York, including the probe of former New York City Mayor Rudy Giuliani, must continue unabated,” Karson said. “Otherwise, ordinary citizens will have no faith in our justice system.”
Shortly after the first Justice Department statement, Trump announced that Securities and Exchange Commission Chairman Jay Clayton would be nominated as the U.S. attorney for the Southern District.
The fate of that nomination is in doubt since Sen. Chuck Schumer said Clayton should withdraw from consideration, implying he would object to the nomination. In a separate statement, Sen. Lindsey Graham, chairman of the Senate Judiciary Committee, said he will honor the “blue slip” process, where home-state senators may put a hold on nominations.
“I have not been contacted by the administration in this regard” Graham said Saturday. “However, I know Mr. Clayton and believe him to be a fine man and accomplished lawyer. As to processing U.S. attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination.”
Did he say this with a straight face?
Funny, when a dimoKKKRAT fires a U.S. Attorney there are no problems, they just resign. When President Trump fires a U.S. Attorney all hell breaks loose.
The legal precedent is clear. Federal prosecutors serve at the pleasure of the President who may fire them all if he chooses—unless of course the President is Donald Trump. The same is true of Executive Orders. Presidents may issue Executive Orders and/or rescind Executive Orders—unless the President is Donald Trump.
Absolutely laughable
Especially in NY
FTA: “Otherwise, ordinary citizens will have no faith in our justice system.”
I think that ship has sailed.
Trump fired him. Problem solved.
Absolutely laughable
Especially in NY
Clinton and Obama fired U.S. Attorneys - No problem. George W. Bush and Donald Trump fire U.S. Attorneys - Constitutional Crisis.
Just fire his ass already.
L
But with the way things are going could Berman make a case for him to stay on ????
If this reaches the Supreme Court, John Roberts will declare him President of the United States.
Looks like time for a reenactment of the Third Defenestration of Prague (1618).
Ready the honey wagon!
Well BYE.
If he does not leave immediately them he must be removed by force immediately. Do not play this lib game for one second that our President has no legitimacy. What part of “Your Fired” don’t you understand ?
“Funny, when a dimoKKKRAT fires a U.S. Attorney there are no problems, they just resign. When President Trump fires a U.S. Attorney all hell breaks loose.”
That’s why Trump should have fired all the democrat attorneys en masse. He didn’t and now he will have to deal with these prima donnas.
My guess is this guy Berman goes nowhere and will get funding to fight this in court. I would not rule out Berman eeking out a win here given the state of judges in this country and particular in NY.
Without a resignation from Berman or his ouster, there is no vacancy for Barr to appoint an acting U.S. attorney to fill.
Or, VSG President Trump can fire his ass.
Which has now happened!
The Lawfare kids can sleep well this night
FTA:
“I have not been contacted by the administration in this regard” Graham said Saturday. “However, I know Mr. Clayton and believe him to be a fine man and accomplished lawyer. As to processing U.S. attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination.”
Sometimes it’s best to quote exactly what a person says instead of paraphrasing it. Looks like Graham is being deliberately ambiguous and keeping his options open.
This is another garbage issue dreamed up by the Commies and the Organize For Action--the President has the power to remove Berman and I think he may have done so before he left DC for Tulsa.
There may be uncertainty about a replacement--if the Court thinks it has the power and appoints a replacement, Trump removes the replacement and continues to do so until either the Court gives him someone he wants or he gets an appointment of his choice confirmed. Either way, Trump can lock down the US Attorney's office until he gets control which is the intent of the statute.
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