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uh, what is happening? https://twitter.com/eorden/status/1274178463881146370
I am going to have to confess my skepticism of any argument that, unless the Senate confirms someone else, Berman simply cannot be fired or removed
To me, it seems that in 546(d), Congress was trying to allow a judicially appointed USAtt to avoid automatic expiration of a term after eg 120 days. Congress wasn’t trying to impose removal restrictions on the position. https://www.law.cornell.edu/uscode/text/28/546
The Carter Adm took the position that, by default, courts would enjoy the authority to remove US Attorneys appointed under 546(d).
I think that's highly questionable, but in any event, the Carter Admin said another statute trumped that default rule: https://www.justice.gov/sites/default/files/olc/opinions/1979/11/31/op-olc-v003-p0448_0.pdf
I think that's highly questionable, but in any event, the Carter Admin said another statute trumped that default rule: https://www.justice.gov/sites/default/files/olc/opinions/1979/11/31/op-olc-v003-p0448_0.pdf
The Carter Admin also (rightly or wrongly) concluded that the President need not go to the U.S. Attorney himself and tell him "you're fired"; President can use the Attorney General to executive removal order.
But Carter Admin says that's probably not the best strategic move:
But Carter Admin says that's probably not the best strategic move:
It seems the First Circuit has previously embraced similar analysis. Section 546(d) changes the temporal default rule, but does not vest courts with the power to remove persons appointed under that section. That's the President's job. https://casetext.com/case/us-v-hilario
At one point, 546(d) did not expressly interact with the provisions on time-limited interim appointments (see first image). However, the current statute plainly references 546(c)(2), so I think it's appropriate to read them together now:
Even the Justices in Morrison v. Olson scratched their heads a bit regarding the judiciary's authority to remove judicially-appointed executive officers.
They ultimately said it was okay b/c of highly limited removal authority. AG had general removal authority.
They ultimately said it was okay b/c of highly limited removal authority. AG had general removal authority.
So, yeah, in light of the case law, statutory text, and federal constitutional structure, I'm officially calling shenanigans on Berman's claim:
Also, courts seem entirely uninterested in exercising any supervisory/removal authority over judicially appointed attorneys.
Is the argument really that Berman can't be fired by *anyone* until the Senate confirms someone new? Even if he murdered someone? https://casetext.com/case/us-v-steadman-3
Is the argument really that Berman can't be fired by *anyone* until the Senate confirms someone new? Even if he murdered someone? https://casetext.com/case/us-v-steadman-3
As to whether only a district court may appoint Berman's successor: I don't know why that'd be the case.
The court's authority to make an appointment arises when the AG appoints an interim USAttorney for 120 days and that period then expires. But that's not what happened here.
The court's authority to make an appointment arises when the AG appoints an interim USAttorney for 120 days and that period then expires. But that's not what happened here.
Even if we read Section 546(d) to give courts the authority to replace someone that they themselves appointed (?), I'm struggling to see why that statute would operate exclusively.
President would still have appointment authority under the Federal Vacancies Act.
President would still have appointment authority under the Federal Vacancies Act.
For those who consider drafting history relevant: Legislators apparently thought about making Section 546 the "exclusive means" to appoint an interim U.S. Attorney. But (e) didn't make it into the final legislation. 2007 WL 895533 (First noted by @ArielleMourrain)
So now Trump has officially fired Berman. But Barr says that the Deputy US Attorney will fill his shoes. Yesterday, Barr said Carpenito was going to step in.
Takes me back to my first tweet: What is happening?
Takes me back to my first tweet: What is happening?
For the reasons discussed in this thread, I'm confident that Trump had the authority to fire Berman.
Only sadists and lawnerds will be closely interested in the next question (whether Trump still has or had the authority to appoint Carpenito).
Only sadists and lawnerds will be closely interested in the next question (whether Trump still has or had the authority to appoint Carpenito).
