“This morning there were headlines in the NYT and WaPo — and Twitter was ablaze — about a “standoff” between AG Barr and US Attorney Berman.
(Berman appears for work the following day. (Credit: The Hill/Twitter)
(…) 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.
(…) 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 cancelled, 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 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 [sic] 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.” (Read more: Red State, 6/20/2020) (Archive)
(Timeline editor’s note: We have noticed the SDNY has been overseeing the Clinton Foundation, Weiner’s laptop, Epstein and Ukraine, and all of these cases have languished in this office for years.)