RUTHFULLY YOURS

https://www.nysun.com/editorials/an-almost-runaway-prosecutor-decides-to-follow/91169/

“What Would Happen If Trump Refused to Leave Office?” That question is bruited in a headline the Atlantic issued a few months back. It’s been echoing around the Democratic press for months. The answer is that it would be an unsustainable constitutional affront. And what would happen were a United States federal prosecutor to refuse to leave office? We came awfully close to finding out this weekend.

The would-be runaway prosecutor was the United States attorney in Manhattan, Geoffrey Berman. He was appointed in 2018 by the judges of the United States District Court for the Southern District of New York. They acted under Section 546 of Title 28 of the United States Code. In certain circumstances, it allows a federal district court to appoint a U.S. attorney to serve “until the vacancy is filled.”

Mr. Berman seemed to think that language meant he could stay in his post until the Senate confirmed a replacement, which could have run past the election. Mr. Berman also seemed to think the president’s constitutional power of removal applies only to prosecutors whom the president has appointed and the Senate confirmed. Mr. Berman reckoned prosecutors appointed by court may be removed only by the court.

He faced a problem, though. It turns out that when President Carter was in office, his Justice Department took a look at that precise question. It issued an opinion memorandum by Assistant Attorney General John Harmon. Its subject was “Removal of Court-Appointed U.S. Attorney.” It found that a court-appointed federal attorney could be removed only by the court — unless Congress enacted a law saying otherwise.

And guess what? Congress did enact precisely such a law, Title 28’s Section 541. That section says: “Each United States attorney is subject to removal by the President.” It establishes no exceptions. The Carter-era memo endorsed the point, citing a federal court ruling in New York holding that the law “clearly authorizes the executive to remove any United States Attorney, regardless of the nature of his appointment.”

https://www.nationalreview.com/2020/06/president-trump-fires-us-attorney-geoffrey-berman/

In a Friday night fray, AG Barr announced that Geoffrey Berman had “stepped down.” When Berman defiantly refused to go, Trump canned him.

Well, we don’t call it the Sovereign District of New York for nothin’ …

There is tumult in the United States Attorney’s Office for the Southern District of New York, where I proudly spent nearly 20 years as a prosecutor. In a nutshell, after the two men met in Manhattan on Friday, Attorney General Bill Barr announced that evening that SDNY U.S. Attorney Geoff Berman was stepping down. Later during the night, Berman issued a statement essentially saying, “Like hell I am!”

Inevitably, President Trump fired Berman on Saturday afternoon, as announced by Barr. That should end the legal dispute over the job, though it may not. And the controversy has only just begun. It would seem strange to accuse the AG of interfering in the work of the Department he is sworn to run; yet, Democrats and the media darkly accuse Barr of impeding SDNY investigations that could negatively impact the president’s reelection bid. That claim seems overwrought, for reasons we’ll come to.

Still, the sudden removal of Berman just four months before the election raises questions. Practically speaking, there is no way the president’s nominee to replace Berman, current SEC Chairman Jay Clayton, would be confirmed before Election Day. There was, moreover, a significant issue regarding the legal eligibility of the prosecutor whom Barr initially named as Berman’s “acting” replacement — Craig Carpentino, currently the interim U.S. Attorney for the District of New Jersey (DNJ). Wisely rethinking that plan, the AG announced on Saturday that the SDNY would be run by Berman’s deputy, Audrey Strauss, until the Senate confirms a new U.S. Attorney.

The SDNY has a richly deserved reputation for independence from Main Justice in Washington. The office has always had a vigorous public-corruption unit, and boasts other units (major crimes, securities fraud, even occasionally organized crime) that sometimes target and sometimes stumble upon officials great and small, tied to both political parties. These characters are zealously prosecuted, without regard to whether their names are followed by “R.” or “D.” (By the way, corruption is the most bipartisan of political enterprises, and those enmeshed in it tend to see their party affiliation as more a racket than an indicator of allegiance or ideology.)