Barr Can’t Fire Berman, Trump Can, Says Justice Department Memo

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 memorandum by the very Justice Department that Barr heads.

Barr announced Friday night that Berman, the U.S. attorney based in Manhattan, is “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 fired back later that night with a statement saying he hadn’t resigned, had no intention of resigning 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.

Early Saturday, a DOJ official speaking on condition of anonymity said Barr wasn’t dissuaded by Berman’s resistance and planned to stick to his timeline, installing an interim acting U.S. attorney on July 3 and seeking the Senate confirmation of his permanent replacement, extending the standoff.

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, the attorney general can’t.

The confusion in Berman’s status lies in his unusual 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 hasn’t forwarded 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 OLC memo directly addresses the question 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 only the president has the power.

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.

Steve Vladeck, a professor at the University of Texas School of Law, said in an early morning tweet that it’s clear that Barr can’t legally fire Berman, though not clear whether Trump can fire him or whether Trump has the power to put someone else in Berman’s seat without Senate confirmation.

“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. “But don’t lose sight of the bigger story here — this stinks to high heaven. Finding out *why* this happened is the key.”

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