Federal prosecutors arriving for work on Monday morning at the offices of the Justice Department’s Southern District of New York do not know right now exactly who their boss will be when the dust settles.
The uncertainty began last night when Attorney General William Barr released a statement announcing that Donald Trump had nominated Jay Clayton, the current head of the Securities and Exchange Commission and a Trump loyalist with no prosecutorial experience, to become the new U.S. Attorney for the SDNY, considered the most prestigious and powerful position in the Justice Department after the Attorney General.
Barr also announced — erroneously as it turns out — that the current head of the SDNY, Geoffrey Berman, would be stepping down from the position he has held after being appointed to the position by federal judges in the district after Trump failed to have a nominee confirmed for the position by the Senate.
While the president typically is the person who appoints U.S. attorneys after their Senate confirmation hearings, federal law allows the attorney general to temporarily appoint a prosecutor to fill a vacancy for 120 days.
Once that temporary appointment expires, as it did with Mr. Berman, the judges in the district are allowed to fill the position themselves. The law then designates that the court-appointed prosecutor will be able to “serve until the vacancy is filled.”
Berman, who was blindsided by Barr’s announcement, promptly announced that he had not resigned and had every intention of staying in the U.S. Attorney position until a Senate-confirmed replacement was ready to take over the position, setting the stage for an epic contest of wills and a likely protracted legal battle that could soon wend its way to the Supreme Court since this is the first time that such a situation has ever occurred.
Oh, what a complex web can be weaved in the curse of one Friday night massacre!
By this morning, Barr took the first step in response to Berman’s defiance of his attempt to remove him — an attempt seen by many as a way of short-circuiting the many investigations the SDNY is currently reportedly conducting that involve Donald J. Trump, his family, his businesses, and his associates.
The Attorney General sent a letter to Berman stating that his refusal to step down from the helm of the SDNY constituted a choice of “public spectacle over public service” and summarily informing him that the president had ordered him removed from office.
“Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so,” Barr’s letter insisted.
Because the nomination of Jay Clayton to the position has yet to even be considered by the Senate, Barr appointed Berman’s top subordinate, Audrey Strauss, as the acting head of the SDNY in the meantime.
There was only one slight complication with Barr’s latest move: Trump himself denied having any involvement whatsoever in the firing of Berman, saying it was entirely Barr’s doing.
Roy Cohn would not be this sloppy. https://t.co/pMBH5c1bge
— David Corn (@DavidCornDC) June 20, 2020
With questions still open about who may actually have the authority to fire Berman due to his appointment by federal judges rather than the president, the outcome of this standoff is still to be determined and may not happen as quickly — and certainly not as smoothly — as the Attorney General that Trump has deferred to would like.
With Trump and Barr seemingly acting at cross purposes, it will be interesting to see where this particular political hot potato lands, but expect the House to open an inquiry into whether Barr’s — or Trump’s if he eventually cops to it — firing of Berman is legal or ethical considering the number of investigations involving the president that the SDNY is reportedly currently conducting.
Suffice it to say that as summer dawns, the stench from this debacle will waft in the political atmosphere for quite some time.
Original reporting by Charlie Savage at The New York Times.
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