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On the substance of tonight's SDNY move, there seems to be as much confusion as there is potential nefariousness — as is often the case with this administration.
Here's the DOJ press release, which, contrary to some news reports, suggests that Berman is NOT leaving the job immediately — it gives a July 3 date — although a two-week transition for SDNY is still abrupt. https://www.justice.gov/opa/pr/attorney-general-william-p-barr-nomination-jay-clayton-serve-us-attorney-southern-district
Given Berman's appointment was through SDNY dist ct under 28 USC 546(d), I believe he'd have to resign in order to be replaced — unless the Senate confirmed a successor.
The NYT just updated its story, and now is saying that Barr(?!) "fired him." [I don't think that can happen.] https://www.nytimes.com/2020/06/19/nyregion/us-attorney-manhattan-trump.html
![The NYT just updated its story, and now is saying that Barr(?!) "fired him." [I don't think that can happen.] https://www.nytimes.com/2020/06/19/nyregion/us-attorney-manhattan-trump.html](https://pbs.twimg.com/media/Ea7K0ssWkAA1Blc.jpg "The NYT just updated its story, and now is saying that Barr(?!) \"fired him.\" [I don't think that can happen.] https://www.nytimes.com/2020/06/19/nyregion/us-attorney-manhattan-trump.html")
AND, the US Attorney for the Southern District of New York agrees with me: https://twitter.com/eorden/status/1274178463881146370
And, we're now in a BIT of a crisis mode.
The great irony of all of this is that the Trump administration's decision to avoid the Senate, in my quick review and in Berman's view, has the result of removing the authority from Trump and Barr to fire Berman — as they're trying to do now. https://twitter.com/chrisgeidner/status/1274162988388421633
Just an ordinary Friday night in 2020!
Here's the OLC opinion from the 1970s about who has the authority to remove a judicially appointed US Attorney that @PreetBharara mentioned on CNN: https://twitter.com/gabrielmalor/status/1274190082019405825
OLC — Office of Legal Counsel — is an executive branch office within DOJ that opines on its view of the law. Its opinions are not binding on courts, and it has often over time been seen by many observers (and courts) to have too grand a view of executive power.
That language in 28 USC 541 is the basis of the OLC opinion, but it seems weak to me, b/c it ignores the more specific language of 28 USC 546, which specifies that "the district court ... may appoint a United States attorney to serve until the vacancy is filled." https://twitter.com/vinelodge/status/1274194612547203075
An important note about the DOJ line about Berman getting offered another job is that he was offered Civil Division — but not Criminal Division.
When talking about 541 and 546, the whole setup for 546 is that POTUS failed to (successfully, at least) act under 541. 546 sets timelines for the first type of appointment — by the AG — but then it ALSO sets a timeline for the judicial appointment: "until the vacancy is filled."
Other good folks to follow on this:
* @AJosephOConnell (although she, blessedly, appears to have escaped this moment tonight)
* @steve_vladeck
* @EricColumbus
* @gabrielmalor
* @AJosephOConnell (although she, blessedly, appears to have escaped this moment tonight)
* @steve_vladeck
* @EricColumbus
* @gabrielmalor
There is, outside of the 541/546/3345/OLC legal ins-and-outs discussion, also this very basic discussion:
The Attorney General of the United States is a liar. https://twitter.com/steve_vladeck/status/1274197858091220994
The Attorney General of the United States is a liar. https://twitter.com/steve_vladeck/status/1274197858091220994
Much more to come for sure — but that's a wrap for me for tonight.
(It's been a while since I've had a good Friday night breaking-legal-news night. I have missed all of you!)
(It's been a while since I've had a good Friday night breaking-legal-news night. I have missed all of you!)
