UPDATE:   

“You’re Fired!!!!”  — William Barr

How could it get any better that that!?!

After Berman’s petulant “I’m not resigning” press release last night, Attorney General Barr sent him a letter today telling him his services are no longer needed — effective immediately.

Barr’s letter lays out their meeting yesterday, during which Barr confirms he did discuss with Berman other jobs in the Administration he could be moved to, including Assistant Attorney General for the Civil Division, or to Chairman of the Securities and Exchange Commission.  Barr says in his letter that his understanding upon departing his meeting with Berman was that Berman understood he was being replaced, and discussions over what position Berman might move to were to remain ongoing.   Barr says Berman choose “public spectacle” over “public service,” so he has advised Pres. Trump to remove him from the position immediately, with his Deputy US Attorney taking over the role of Interim US Attorney immediately.     The text of Barr’s letter can be found at the bottom of this story.

Today’s headlines are filled with suggestions of a “standoff” among the US Attorney for the Southern District of New York (SDNY), Geoffrey Berman, and Attorney General William Barr.

There is no standoff.  AG Barr fired Berman yesterday after giving him the chance to resign, but Berman declined to do so.  There are rumors — unconfirmed so far as I can tell — that AG Barr offered Berman the job of Assistant Attorney General for the Civil Division in Washington, but Berman declined that as well.  DOJ put out a press release late yesterday announcing that Jay Clayton, current Chairman of the Securities and Exchange Commission, would nominated to be US Attorney for SDNY, and that Craig Carpentino, currently the US Attorney for New Jersey, would serve as interim US Attorney for SDNY until Clayton’s confirmation — all to be effective on July 3.

The US Attorney’s Office for the Southern District of New York is responsible for Manhattan — that’s it.  The other New York City boroughs are outside the jurisdiction of SDNY.  But Manhattan is a lot, it’s important (just ask them), and lots of big cases in politics, finance, business, etc., are handled by the SDNY.

But, SDNY has a reputation — well earned and they are proud of it — that they consider themselves not to be a US Attorney’s Office, they rather the Department of Justice for Manhattan.   Outside direction is not received warmly.   “If we wanted DOJ’s assistance we would have indicted the Attorney General and given him a cooperation agreement” sort of sums up the ethos.

When there is a change in parties in the office of the Presidency following a presidential election, the new President is entitled to ask for the resignation of all 93 US Attorneys who were in office on his first day.  Sometimes Presidents decide to allow certain individuals to remain in the position, and sometimes they hold off accepting the resignation until a new nominee is in place.  Most often the US Attorneys appointed by the prior President graciously tender their resignations and vacate the office — usually with a position in a prominent law firm awaiting them. After their departure the position is filled by someone acting on an “Interim” basis, until a new appointee is confirmed by the Senate.

President Trump did not demand the immediate resignation of all Obama US Attorneys when he took office.  A majority of the positions were vacant with career prosecutors serving in an “Acting” capacity, but even for the Obama holdovers, Pres. Trump did not demand their resignations.  He waited for former Attorney General Sessions to be confirmed, and he allowed Sessions to have a say in whether to keep any in place since Session, while a Senator, had been involved in the confirmation process for all of them.

Preet Bharara was the US Attorney in the SDNY at the end of the Obama Administration.  He did not resign following Pres. Trump’s election or inauguration.  Following the ethos of the office — and likely the instructions of his old boss Chuck Schumer — Bharara made very public comments regarding his intention to stay on and continue in the job of US Attorney.

On March 10, 2017, Sessions asked Bharara and 43 other US Attorneys for their resignations.  Being the gracious professional that he is, Bharara refused to resign and forced Sessions to fire him instead.  He was replaced on an “acting” basis by Joon H Kim, Bharara’s top deputy.  Kim remained as “Acting” US Attorney for nine months, until Sessions announced that Geoff Berman would be appointed “Interim” US Attorney under the relevant statute, a position he could remain in for 120 days.  Berman had been an Assistant US Attorney in the SDNY from 1990 to 1994, and was a partner with Rudy Guiliani in a prominent New York law firm.

On January 3, 2018, after nearly a year of fruitless discussions with Chuck Schumer over a selection — Schumer had wanted Bharara to remain in the position — Sessions named Geoffrey Berman as the “Interim US Attorney, pursuant to 28 USC Sec. 846(c).  That appointment is good for 120 days.  If no Senate confirmed appointee is installed during that 120 days, the the judges of the district court for the district shall appoint someone to the position.  In April, 2018, the district court judges in the SDNY appointed Berman to remain as US Attorney for SDNY.

After the announcement from Barr yesterday, Berman followed it up with an announcement of his own — he had not been informed by Barr of anything, he first learned about the proposed changes from the press release put out by DOJ, and he was not resigning.  He then showed up at the offices this morning in Manhattan and told the assembled press he was there to go to work.

So, what are we to make of the headlines?

First, the reporting is inaccurately stating that Barr said in his press release that Berman was “resigning” — which then set up Berman’s response widely reported by the same media that he was not “resigning.”

What Barr’s press release said is that Berman was “stepping down”.  The press can play all the semantic games it wants with the phrasing, but this is a press release from DOJ to the nation, and when it was put together back in DC I’m confident that a judgment was made to not say Berman was “fired” by Barr — even though that is what seems to have happened.  “Resignation” implies a voluntary move on Berman’s part, so that wouldn’t have been accurate — and the press release does not say he was resigning.  “Stepping down” is an inexact enough phrase to describe what is happening without placing the “act” causing it on either Barr or Berman.

Was that done to deflect criticism for the move or was it done to simply not have that label of “fired” affixed to Berman’s tenure as court-appointed US Attorney — whose to say at this point.

As for what happened today, the announcement yesterday said Carpentino would not take over as Interim US Attorney until July 3.  So the fact that Berman showed up today for work isn’t news — that was the expectation.  If this was all part of some grand strategy to head-off something about to happen in the SDNY involving Trump, why would Barr have left Berman in place for another 2 weeks?

All the left wingers and NeverTrumpers continue to live in a fevered fantasy world where the “other shoe” on Donald Trump is always about to drop.  But let me make this as simple as possible for everyone to understand:

The US Attorney for the SDNY has been “investigating” Donald Trump and Trump, Inc., for FOUR DECADES.  They have yet to find a crime they could indict him for. 

Let me add something more to that:

The Special Counsel’s Office looked at ALL Donald Trump and Trump, Inc.’s tax returns and accounting records, and reported NOTHING about them in the Mueller Report. 

If you are a prosecutor trying to link Donald Trump, Trump, Inc., and the Trump campaign to foreign interests involving the Russian gov’t and Russian organized crime, you are going to spend most of your time reviewing business and tax records looking for financial links, not talking to and relying on legwork done by idiots like Christopher Steele.  A grand jury investigation has the ability to gain access to all those records without the need to litigate access to them through the courts in the same way Congress and the New York Attorney General are having to do.

So the idea that SDNY is now on the trail of something that has remained hidden from that same office for 40 years, or on the trail of something that the SCO was never able to uncover despite having NO OTHER PURPOSE for its existence, is just a Democrat and NeverTrumper wet dream — nothing else.

So what about the fact that Berman was “appointed” by the district court judges — can he be removed?  In 1979, the Carter DOJ Office of Legal Counsel issued an opinion on this exact question.  As I noted above, 28 USC Sec. 546(d) provides for the appointment by the district court judges of someone to serve as US Attorney when the office has been vacant, or occupied by another “Interim” for 120 days.  But 28 USC Sec. 541(c) says all US Attorneys are subject to removal by the President.  So the question posed in the OLC opinion was whether that “removal” power extended to US Attorneys appointed by the district court, and the opinion came to the conclusion that they are subject to the removal power just like US Attorneys nominated by the President and confirmed by the Senate are subject to the removal power.  I’m going to skip for now an explanation of the legal analysis by which they came to that conclusion.

The Opinion also says that the “removal” power does not require any formal Presidential action — the President can orally direct the Attorney General to take whatever action the Attorney General believes is necessary, and the President can validate that action after the fact.  Since Berman’s removal does not happen until July 3, Pres. Trump can always issue a written directive confirming the Attorney General’s action at any time in the next two weeks if Berman does not “step down.”

This OLC Opinion has never been withdrawn or modified by any Presidential Administration in more than 40 years since it was issued.

So what is playing out on the front page of the Washington Post and NYT isn’t reality — it’s fake news.  It’s just another extension of the well-established narrative being driven by the press that Attorney General Barr is going about doing President Trump’s dirty work and nothing else.  They must discredit Barr because of what they know is coming in the weeks and months ahead.

Update:  Text of AG Barr Letter Firing Berman.

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.