Saturday, June 20, 2020

UPDATED: Bill Barr Remains Unfazed

Even as the MSM drumbeat against AG Barr continues and Jerry Nadler is soliciting more "whistleblowers" to smear Barr, Barr signalled how unimpressed he is by it all by removing Geoffrey Berman--a Team Mueller ally--from his position as USA in the Southern District of NY (SDNY). Liberal heads are exploding.

Barr announced that Berman was "stepping down":

“I am pleased to announce that President Trump intends to nominate Jay Clayton, currently the Chairman of the Securities and Exchange Commission, to serve as the next United States Attorney for the Southern District of New York.
... I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York.  ... I wish him well in the future.”

Pretty typical Barr stuff. He doesn't waste time and energy in a public debate.

Berman, on the other hand, is attempting to push back, claiming that he won't step down until Clayton is confirmed:

Berman was appointed by the US District Court for the SDNY under a rather special (and sloppily written) legal provision--28 USC 546(d):

If an appointment expires under subsection (c)(2), the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.

Berman's seems to be claiming that the appointment by the Judicial Branch in this special circumstance somehow immunizes him going forward from the normal operations of the DoJ. That's an argument he'll certainly lose, based not only on Constitutional principles but also on 28 USC 509, which states that:

“All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

I take that to mean that, once appointed in those circumstances by the Court, the USA is subject to the AG. And can also be fired by the President.

That's also the idea as expressed in 28 CFR 0.5(a):

§ 0.5 Attorney General. 
The Attorney General shall
(a) Supervise and direct the administration and operation of the Department of Justice, including the offices of U.S. Attorneys and U.S. Marshals, which are within the Department of Justice.

Brett Tolman addresses all this, point also to 28 USC 541(c), which allows the President to fire US Attorneys irrespective of other provisions of law. He adds:

[28 USC 546(d)] does nothing to modify the President’s authority as it is a temporary executive position not a judicial position. It is still an executive branch position despite judges inserting the temp. And you obviously know who heads the executive branch.

The real point is that Barr is inexorably extending his control over DoJ and he's not about to let anyone stand in his way. He has the authority and he'll use it. Period.

UPDATE 1: It was never an issue whether Barr would back down. Barr has asked Trump to fire Berman, and Trump has done so. In a letter to Berman today, Barr stated in part:

Unfortunately, with your statement of last night, you have chosen public spectacle over public service. 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. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place. See 28 U.S.C. 541(c).
To the extent that your 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.

UPDATE 2: Sundance notes that Barr has a previously scheduled interview tomorrow with Maria Bartiromo and speculates that the Berman firing today may have been timed to help put across a narrative that Barr has had in the works for a while. We shall see. It's true enough that Barr doesn't engage in interviews without having some point that he wants to get across.


  1. Cardboard sword rattling by Berman. Has he forgotten that Preet Whoever was fired? Is gone, even though he said he wouldn’t leave? Preet went noisily and hangs around like a boil or a pebble in your shoe, but he’s gone. We are becoming immune to the ranting of the Disgruntled Firees….

    I remain a Barr fan. Those who are fond of perp walks, frogmarching in leg irons, flashy headlines, are disappointed in what seems to be his slow speed. But that speed is well-considered and I imagine that whatever he and Durham do will stick.

  2. As I just commented in another thread, even if Durham is all we have (to put the Left on its heels), it should be enough, if this culture has any real life in it.
    If this culture will tolerate the biggest criminal conspiracy ever launched vs. Const. gov't. (once Durham let's things rip, or if he ducks the challenge), then this culture has no real life anyway.
    It's sort of fitting, that the Durham probe would be for all the marbles.

    1. If Graham won't hold any hearings for Berman’s replacement, I must fear that the GOPe expects to get away with sabotaging DJT. 'til the election.

    2. We were told (not so long ago) that indictments would be coming down in June. Two-thirds of June has passed and not even a whisper so far. It cannot be that difficult based on what is public knowledge to put some of these "public servant" criminals in the dock.


    3. DJL, June was an estimate. Indictments come from the Grand Jury. They will not take any action until all evidence and witnesses have been presented to them. There is no way of estimating, in a sprawling plot like this one, how long that will take. Thus any estimated date is no more than a best guess… As for a whisper, I would imagine it will come with a bang.

  3. Can Barr physically eject Berman from his DoJ office, using federal Marshals, or can he fast-track this mess straight to the Supremes?
    If not, expect more of this crap at every turn, so that the Resistance will be able to bleed DJT with 1000 cuts.

    1. Trump will need to fire Berman before Barr can take enforcement action.

    2. Yeah, so this is how the Left/ DS may get its Saturday Night Massacre moment.

    3. By law, the United States attorneys are subject to removal by the President.

      Why would the SCOTUS have anything to do with it?

    4. Trump reportedly said a few hours ago that he had nothing to do with it.


    5. Why would the SCOTUS have anything to do with it?
      If U.S. marshals refused an order to eject Berman, and were thus disciplined/ fired by Barr, and they went to seek a stay/ injunction in court....
      Nowadays, anything is possible.

  4. Another fascinating aspect of this latest debacle is the fact that Trump intends to nominate Jay Clayton as USA for the SDNY. Clayton is a corporate lawyer who in all likelihood has never willingly set foot in a federal courthouse. (I know - I was one.) This suggests to me that there was considerable political and administrative games-playing within the SDNY. Trump is signalling that he needs a loyalist to clean it up, not an up-through-the-ranks prosecutor.

    [PS I know that Clayton served a federal judge as a judicial clerk after law school. So did I. That doesn't count.]

    1. Alas, Clayton's name has been replaced by that of Audrey Strauss. Is she Swamp?

    2. @Mouse

      I don't think so. I believe Strauss will be acting until Clayton (or whomever) is confirmed.

      I don't know what has happened to the guy from New Jersey.

    3. Barr is assigning Stauss as Acting USA until Clayton is confirmed.

    4. NYT is saying that Berman conceded when Barr acquiesced in letting Strauss take over as acting USA rather than NJ USA Craig Carpenito.

      Lindsey Graham is saying he may let the two NY Dem Senators block Clayton.

      Still wondering what Barr's game is here...

  5. High level persons are usually given the opportunity to resign. Looks better in the media and on one’s resume, even though it may be a winky-winky thing. Berman wants to be fired. Sounds fine to me. Lawfare et al will kick and scream. Berman will do a political hatchet job on PDJT as Preet did. Life will go on.

    Biden will never ever be president. Nor will any of those involved in the Dem VP version of Russian roulette.

  6. Letter from Barr to Berman, dated today advising him that he has been removed by the President - and for good measure citing the appropriate legal authority. Great letter. Kapow to Berman.

  7. Mark, when I posted the news about Berman’s firing and the link to Barr’s letter, I missed the fact that you’d updated your main post…

    Berman should have seen this coming. He replaced Preet Bharara, who had tried to pull a similar stunt and was gone the next day.

  8. PS. Barr’s letter today is a doozy!

  9. In his letter, Barr has telegraphed that DoJ IG Horowitz will be watching to insure that everything in that office is handled according to "the law and the facts”.

    I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.

  10. OT, but major:
    According to Breitbart, photos show the Tulsa rally to be *nowhere near* a full house, see .

    I'm staggered, that DJT's folks would let that disaster-for-optics happen.
    Looks like they should've had the event outside, where a flop may've been less obvious.
    If Durham can't show the public the magnitude of the Dems' danger to the Republic, I can't see how the public will be aroused enough, to turn out enough to stop the Dems in Nov.

  11. It sure is strange the way an Iran connection -- and accompanying media blackout of that aspect -- eventually surfaces in all these Deep State/Obama admin scandals. Probably just a coincidence ... a statistically-improbable cosmic coincidence.

    "The central Iranian connection places the case squarely in the category of core “deep state” interests. As the Berman-Barr dust-up has matured this weekend, the silence in the mainstream media coverage about the Iran-Turkey-Venezuela sanctions case tells its own tale."