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.”
There is the Marshals Service.
Where in the Constitution are ‘blue slips’?
Sounds pretty much like that is what Barr did.
Awesome.
How many US Attorney’s were fired when Clinton and the last occupant of the White House assumed the Presidency? Quite a few if I remember.
Someone feel free to correct me but there were given a chance to resign by a certain date or be fired.
It’s impossible to shame a Democrat/Leftist/Progressive/Socialist. Why? Because they have no shame. They are not ashamed by anything they do or say as long as it fits their agenda or the agenda of those that they serve.
Send in the federal marshals and arrest this leftist nitwit.
Leftists never give up. They are never without recourse no matter how stupid, far fetched or contraindicated by the Law.
Can’t POTUS obtain an order from the judge and have him removed by the U.S. Marshalls???
More popcorn! These seditious leftist losers are putting on quite a show. I wonder if any will be arrested for their perfidy.
If they’re ever going to get huma’s laptop—the current head of the southern district of NY has to go.
So...you wanna muddy up the waters in a clear flowing stream?
Just bring a gaggle of foam spitting lawyers...
This should be clean and simple. When Berman was appointed, the court also said he could occupy the office until such time as the President named a permanent appointee, and that person was approved by the Senate.
Why are all these chattering heads running off at the mouth? Makes no sense.
“.. policy of the Judiciary Committee to receive blue slips from the home state senators..”
That policy is contrary to the will of the Constitution and this is a good time to have it removed.
Dude, that’s not funny. It’s a realistic possiblity. And the Left would demand that we follow Roberts’s ruling.
ENTITLED did he say!!?!
Trump fired him. Problem solved.
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Yep. Security should escort him to the door, take his badge, remove his name from the access roster and tell him bye, bye.
Well, If he’s a law school graduate he knows he has no right to stay on the taxpayers’ payroll after being fired and that the admin can fire anyone in such posts at anytime for any reason or for no reason at all . You work there at your boss’ pleasure, period. So he made a public fool of himself deliberately.
It really is amazing that they think they can do what they want, up to and including making stuff up - lying to a complicit judge - prosecuting people for crimes that have no victim - allowing others to walk for the same crimes that they put someone in prison for - attempting to entrap an individual then prosecuting him for not falling for it - allowing others to amend their taxes and backdate FARA forms .... all because Orange Man Bad.
If the President isn’t re-elected there is going to be some serious problems in this country. I drive around and I see Trump signs and flags everywhere. I have only seen one, count ‘em, one Biden sign. I doubt Biden will make it through the first debate. Whether through the stress, threatening the President, asking him if he wants to take it outside, or just display his complete and total mental decline. It’s going to be real interesting who his VP pick is, since now Klobuchar says it should be a woman of color. Not many to pick from ... Abrams, Bottoms, Harris. WOW!!!
But when he is sent back, knowing he’s got nothing to worry about, I hope he drops a F*CKING MOAB on DC.
The statute involved clearly gives the president authority to remove a US Attorney appointed by Article III Judges but it does not give the Attorney General that authority. While the statute itself is questionable in that the constitution assigns authority for filling such position to the President and Senate with no role for Article III officials, the President only needs to issue a one sentence termination letter to Mr. Berman to resolve the immediate problem.
“Trump fired him. Problem solved.”
Trump on Barr’s claim Trump fired Geoff Berman: “That’s really up to him. I’m not involved”
https://twitter.com/joshtpm/status/1274437618726506497
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