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Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.
There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor).
There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor).
Of course, the Trump DOJ may argue that § 546(d) is unconstitutional insofar as it prevents the President from removing Berman, but that’s complicated here by Berman being an *Acting* U,S. Attorney—over whose appointment and removal Congress can arguably exercise *more* control.
As @marty_lederman points out, there’s a 1979 OLC opinion concluding that the President—but *not* the Attorney General—can fire a U.S. Attorney appointed under § 546(d):
https://www.justice.gov/sites/default/files/olc/opinions/1979/11/31/op-olc-v003-p0448_0.pdf
OLC isn’t a court, of course—and even in its view, Barr couldn’t fire Berman.
https://www.justice.gov/sites/default/files/olc/opinions/1979/11/31/op-olc-v003-p0448_0.pdf
OLC isn’t a court, of course—and even in its view, Barr couldn’t fire Berman.
And here’s a federal district court in 2009 holding that 546(d) requires a Senate-confirmed successor—and isn’t unconstitutional insofar as it so requires:
https://casetext.com/case/us-v-taylor-45
https://casetext.com/case/us-v-taylor-45
The First Circuit has noted that the *President* can remove a U.S. Attorney appointed under 546(d)—although the issue was not squarely presented there:
https://casetext.com/case/us-v-hilario
So there’s a debate over whether the President can fire Berman, but seeming consensus that Barr can’t.
https://casetext.com/case/us-v-hilario
So there’s a debate over whether the President can fire Berman, but seeming consensus that Barr can’t.
Finally, I take the point that Berman technically isn't an *acting* U.S. Attorney, and is instead *the* U.S. Attorney under 546. That doesn't change the constitutional analysis (he's still an inferior officer). The statutory question reduces to whether 546(d) overrides 541(c).
