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Thread: here's where I think we are. It's pretty exquisite. Berman is court appointed and under 28 USC §546 his appointment lasts until there is a presidentially appointed and confirmed US Attorney.
OLC opinion from 1979 says under 546 the AG can't fire someone -- i.e can't trump so to speak the court's choice -- but that President can. That rule has never been tested in court however.
So for starters, needs to be Trump who issues the order. Can't imagine why he wouldn't. Barr will threaten to resign otherwise. By temperament and circumstance, he has to go the wall here.
Assuming Trump does order, Berman will proffer 546. DOJ's argument on behalf of Trump I think has to be 546 is unconstitutional as applied to extent prohibits Trump from firing someone. Myers v US. I actually think that this is a strong argument.
But we're back in the setting in which the law may be less important than the practical question of how long the court system takes, i.e the shoe may be really on the other foot.
Expect rushes to courthouses -- DC and SDNY -- and all manner of dueling orders, marshals etc. But the pivotal point will be whether the first court that gains jurisdiction is persuaded to grant a preliminary injunction on behalf of Trump and disturb the status quo --
Take Berman out while the case is pending. And now a factor has to be the DOJ's and Trump's massive bad faith over a range of cases and situations. The courts -- and certainly SNDY -- not likely to be well disposed, and for practical purpose all they need to do is
not oust Berman while they consider the legal actions. That likely translates into more than enough time -- maybe the rest of the Administration -- for SDNY to move triple time, as they already must be doing -- to develop the cases that Barr and Trump fear and loathe
also possible Berman can move for discovery. he'll have some account of the discussion he had with Barr in NY yesterday that will make Barr look high-handed. Legally speaking it's like a 4-dimensional mobius strip -- totally head bending --
but in practice if Berman can hold on while court decides the constitutional claim, Trump loses. END
