The U.S. Attorney for the Southern District of New York forgets Trump is his boss
The Department of Justice is not a constitutional entity. The Judiciary Act of 1789 created the office of the Attorney General. Only in 1870 did the legislature create the Department of Justice. It is an administrative entity, which means that the president is the Chief Executive Officer. The people of the United States are the shareholders who get to appoint the Chief Executive. if they don’t like his management style, at the end of his term, they can elect someone different.
Because President Trump is the People’s chosen Big Boss, the employees in the Department of Justice serve at his pleasure. This means that, subject to a few judge-made limitations, Trump and his agent, the Attorney General, have ultimate control over hiring and firing. Members of the swamp, however, no longer believe that they are constrained by statutory or constitutional limitations. They believe that their jobs are permanent benefices of the type that made the British government one of the most corrupt in the world at the end of the 18th century.
All of which gets us to Geoffrey S. Berman, the U.S. Attorney for the Southern District of New York. During the Obama administration, the Southern District exerted itself to prosecute people who made Obama uncomfortable. Famously, it went after Dinesh D’Souza, a ferocious Obama critique, for a campaign finance contribution issue in an amount so small no one had previously been hounded into prison for such a sum. Of late, the same district has dedicated itself to harassing Trump and anyone connected with him.
On Friday, Attorney General Barr announced that Berman would be stepping down so that the President could nominate Jay Clayton to serve in his place. That same evening, Berman announced, “Not so fast, Buster. I’m not leaving and you can’t make me.” Or, more formally,
I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor – and intend to ensure that this Office’s important cases continue unimpeded.
On Saturday, Barr shot back that, if Berman wasn’t going to resign with dignity, he was fired.
Barr schooled Berman for failing to understand that he serves at the President’s pleasure:
To the extent that y our statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court-appointed U.S. Attorney is subject to removal by the President. See United States v. Solomon, 216 F.Supp. 835, 843 (S.D.N.Y. 1963) (recognizing that the “President may, at any time, remove the judicially appointed United States Attorney”); see also United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (same). Indeed, the court’s appointment power has been upheld only because the Executive retains the authority to supervise and remove the officer.
Barr also reminded Berman that the cases he currently supervises can continue perfectly well without him under new management. Berman finally got the message and quit.
The media, of course, assume that Barr and Trump are firing Berman in order to shut down righteous investigations into Trump’s businesses, his taxes, his associates, his associates’ associates, and so on. Conservative Treehouse, though, has a different theory.
Although the media has forgotten, in January, the FISA court issued an order regarding the insufficient predication for the spying applications the DOJ and FBI submitted to the court. Under pressure, the FBI agreed “to sequester all collection the FBI acquired” as a result of the wrongfully obtained FISA orders. This sequestration meant that no one within the various U.S. attorneys’ offices could conduct the reviews, necessitating John Durham’s appointment.
The Conservative Treehouse believes that Barr has the results of that investigation, and that these results may extend well beyond the sequestration. To the extent they reveal problems, Barr is systematically removing U.S. attorneys who engaged in wrongful conduct, including attorneys in the Southern District of New York.
Barr knows that Rep. Jerry Nadler is trying to impeach him. He must therefore know that, if any negative spin can be placed on his removing Berman, Nadler will do it:
Barr is not a dummy. He wouldn't make these DOJ moves without titanium justification. The FISC order is a part of that... /cont.
And the other part is Barr's anchor point to the truth.
Barr has eight USAO's working on an internal investigation; and all of their discoveries.... Along with Durham, who has been working on this over a year, and all of his evidence.
Barr has nuclear-grade ammunition.
Berman thought he had the upper hand when he refused to leave. He, and all the other NeverTrump and Democrat attorneys in the DOJ, may find that it’s Barr who holds the whip hand.