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My guess without taking a deep dive into the issue: both the district court and the President can remove Berman. /1
The power of removal is incident to the power of appointment, unless Congress says otherwise. See Burnap v US (1920). Because the district ct appoints and the statute does not place the removal elsewhere, see 28 USC 546(d), the district court can remove. /2
Moreover, I don’t see any provision requiring cause. B/c US Attorneys are traditionally at-will officers, I doubt courts would infer for-cause protection as they have done for adjudicators (War Claims tribunal in Wiener) or commissioners (SEC in Free Enter. Fund). /3
I think that courts would also presume as a matter of constitutional avoidance that the president can remove. Notably in Morrison v Olson, an Article III court appointed the inferior officer special prosecutor, but the AG could remove her for good causes. /4
Berman, because he is an acting US Attorney, is very likely an inferior officer, too, meaning that he and Morrison share the same constitutional status. /5
The Morrison Court went out of its way to say that the AG’s ability to remove the SP, even if limited to good cause, was an important consideration in its deciding that the special-prosecutor statute was constitutional under SOP principles. /6
The court found it highly relevant that the executive branch, through the AG, had a vestige of removal authority over the prosecutor. Here, for Berman, the AG does not have removal authority by statute. That leaves the president within the executive branch. /7
I would expect courts to say that Congress should be understood to have impliedly intended to have given the president at-will removal authority over an acting prosecutor. With that inference, sticky constitutional questions fade away. /8
I’m sympathetic to the notion that prosecutors have been ahistorically categorized as purely executive officers, despite their historical relationship with the judiciary. But I don’t think courts are, especially SCOTUS. /9
For more on interbranch appointments like Berman’s (where one branch appoints another branch’s officers), see https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144217. (I even discuss my thoughts on whether Congress could move to a model of judicial appointments for all US Attorneys.) /end
