This is a fast-moving story that first began to unfold late Friday, June 19, 2020, when the Department of Justice sent out a press release announcing that Jay Clayton, Chairman of the Securities and Exchange Commission, would be nominated by President Trump to be the U.S. Attorney for the Southern District of New York, whose jurisdiction covers Manhattan Island. The DOJ press release said the current US Attorney, Geoffrey Berman, would be “stepping down.”  AG Barr had been in New York earlier on Friday, having met with officials of NYPD and US Attorney Berman during his visit.

After the DOJ press release was getting extensive coverage, Berman issued a press statement of his own saying he knew nothing about what had been announced in the DOJ press release, and he was not “resigning” his position, noting for public consumption that he had been appointed to that position by the Court.

This morning, there were headlines in the NYT and WaPo — and Twitter was ablaze — about a “standoff” between AG Barr and US Attorney Berman.

I wrote a story earlier today on the nature of that “standoff”, and that the press reporting was a good example of “fake news.” See Part One — Rumble in the DOJungle as AG Barr and the SDNY US Attorney Berman Throw Down.

But developments this afternoon are that AG Barr has released a letter he wrote to “former” US Attorney Berman setting forth for public consumption their meeting yesterday, what was discussed with regard to the US Attorney’s position in the SDNY, and what further capacities Berman might continue to serve in the Trump Administration.  The text of AG Barr’s letter can be found at the bottom of this story.

In sum, AG Barr references his meeting with Berman yesterday during which they discussed that Jay Clayton was going to be named as the nominee to be the US Attorney for SDNY, and would assume that position as soon as he was confirmed by the Senate.  While that nomination was pending, the current US Attorney for the District of New Jersey would serve as the “Interim” US Attorney for SDNY.  Barr’s letter recounts that he and Berman had discussed other senior executive positions in DOJ that Berman could be asked to fill — including the now vacant Assistant Attorney General for the Civil Division.  AG Barr mentions they also discussed whether Berman might be considered to replace Clayton on the Securities and Exchange Commission.

But AG Barr then says that Berman’s press release falsely stating that he was unaware that he was going to be replaced until he read the DOJ press release and his announcement that he would not “resign,” was a choice by Berman to pursue “public spectacle” over “public service” and, as a result, AG Barr had recommended to Pres. Trump that Berman be fired effective immediately.  Rather than the US Attorney for New Jersey taking over, the Deputy US Attorney for SDNY would assume the position of “Interim” US Attorney until Clayton is confirmed to the position.

In the press release issued by DOJ on Friday evening, the leadership changes in the US Attorney’s Office would not have taken place until July 3 — two weeks from now.

But by virtue of today’s action, Berman has likely received — or is in the process of receiving — the Jim Comey treatment.  He’s likely been locked out of all his DOJ accounts, his computer and/or laptop has been taken, his key card access to the Federal Building and the US Attorney’s Office has been canceled, and I expect he has been or will be escorted from the building without being allowed to take anything with him.  His office will be inventoried, and all personal items will be delivered to him at his residence or other location specified by him.

So let’s deal with a couple of legal issues.  How is it that someone is “appointed” to be US Attorney by the court?  Title 28 USC Sec. 546 deals with “Vacancies” in the US Attorney positions.  It reads:

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of—

      (1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

     (2) the expiration of 120 days after appointment by the Attorney General under this section.

The purpose of this provision is to prevent a President from avoiding the “advice and consent of the Senate” requirement of the Constitution.  If the AG could appoint people to serve as US Attorney for an unlimited period of time there would be no mechanism to force the President to submit his picks for confirmation.  But, at the same time, you want to prevent the position from just sitting vacant when there are disputes over the selection of a nominee.

But the Court’s appointment power in these circumstances then runs head-long into 28 USC Sec. 541(c).  That statute reads:

(a)  The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.

(b)  Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.

(c)  Each United States attorney is subject to removal by the President.

So the question arises as to whether a person named as US Attorney by the district court under Sec. 546 is subject to removal by the President under Sec. 541?  Apparently, former US Attorney Berman thought he was not.  But he thought wrong.

As noted in my earlier article, there is a DOJ Office of Legal Counsel opinion from 1979 on this exact question — involving US Attorneys.  The opinion comes to the conclusion that court-appointed US Attorneys are subject to removal in the same manner as Senate-confirmed US Attorneys.

AG Barr’s letter cites to court decisions since that opinion which come to the same conclusion.  In fact, as AG Barr notes, the fact that such court-appointed US Attorneys are subject to the Presidential removal power is the only basis upon which the appointment power given to the courts in Sec. 546 can even be upheld.  Without the removal power, you would have a “separation of powers” problem with the Judicial Branch making appointments of Executive Branch officials where Congress has given the authority to appoint those officials to the Executive Branch by statute, and where the officials exercise uniquely “executive” authority.

So why would Barr and Trump want to remove Berman before Clayton is confirmed?  One might think that doing it this way likely complicates the process of getting Clayton confirmed.  But just the opposite is true.

As long as Berman was in the position, he is seen by Trump opponents as an “alternative” to Trump’s nominee.  So removing Berman from the position eliminates the option to simply stall the Clayton nomination as a way of leaving Berman place.  The original plan was to put another US Attorney in charge as an “Interim”, which would be seen as a not ideal situation — having him hold two jobs at one time — thereby “driving forward” the confirmation process for Clayton.

But that aspect has now undergone some change since Barr’s letter today announcing Berman being fired immediately, requires that his top Deputy Audrey Strauss take over as “Acting” US Attorney.  The Trump opponents seem to view this as some kind of “win”.  I don’t know enough about Strauss to have an opinion, but the fact of the matter is that her position is no more solid than Berman’s position before her.  Whether Trump opponents will view her as an “alternative” to Clayton they could just leave in place by stalling the Clayton nomination remains to be seen.

Another question is why go through all this just to get Jay Clayton installed as US Attorney in the final months of Trump’s first term given that Trump could lose his re-election bid and Clayton would be out of the job after just a few months?  Very often this kind of situation happens simply because this move was promised to Clayton at some point in the past, and the Administration is trying to make good on that promise.  Clayton has done some serious “heavy lifting” for the Administration at the SEC in trying to reduce the number of financial regulations that have been put in place over the decades which hinder capital formation.  This may be nothing more than granting a request from Clayton to be named to the top US Attorney spot in the country as a reward for his 3+ years of hard work moving forward the Administration’s agenda on financial regulations.  Berman isn’t “owed” anything by the Trump Administration, whereas Clayton has earned it in the Administration’s view.

As I also noted in my earlier story, the press’s wringing of their hands over this situation is all about the narrative of discrediting AG Barr in order to lay the foundation to attack whatever comes out of the Durham investigation — and now the Jensen investigation — of the Crossfire Hurricane fiasco that started in the Obama Administration.  I believe US Attorney Jensen of St. Louis is looking into various aspects of the operations of the Special Counsel’s investigation after the appointment of Robert Mueller in May 2017.

AG Barr has indicated that he is sensitive to “election year” political concerns — while also noting that nobody being investigated in running for office in 2020, so he might not be so sensitive to that fact as to feel the need to push an action by US Attorney Durham to after the election.

Still anticipating that Durham and/or Jensen will make some of their investigative findings known ahead of November, the press and the Dem punditocracy are “all-in” on demonizing AG Barr.

Today’s stories are just more of the same.

The text of AG Barr’s letter to former US Attorney reads as follows:

I was surprised and quite disappointed by the press statement you released last night. As we discussed, I wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as United States Attorney and was hoping for your cooperation to facilitate a smooth transition. When the Department of Justice advised the public of the President’s intent to nominate your successor, I had understood that we were in ongoing discussions concerning the possibility of your remaining in the Department or Administration in one of the other senior positions we discussed, including Assistant Attorney General for the Civil Division and Chairman of the Securities and Exchange Commission. While we advised the public that you would leave the U.S. Attorney’s office in two weeks, I still hoped that your departure could be amicable.

Unfortunately, with your statement of last night, you have chosen public spectacle over public service. Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place. See 28 U.S.C. 541(c).

To the extent that your statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court-appointed U.S. Attorney is subject to removal by the President. See United States v. Solomon, 216 F. Supp. 835, 843 (S.D.N.Y. 1963) (recognizing that the “President may, at any time, remove the judicially appointed United States Attorney”); see also United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (same). Indeed, the court’s appointment power has been upheld only because the Executive retains the authority to supervise and remove the officer.

Your statement also wrongly implies that your continued tenure in the office is necessary to ensure that cases now pending in the Southern District of New York are handled appropriately. This is obviously false. I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.