The Berman Firing, Congressional Oversight, and (Lack of) Presidential Accountability for the Exercise of the Removal Power

I don’t envy Andrew McCarthy, the National Review contributing editor who writes about legal affairs. McCarthy is a smart and experienced lawyer who clearly thinks of himself as intellectually honest. But he also seems to conceive his job as explaining the constitutional operation of our government while minimizing references to the president’s massive unfitness for office. This makes intellectual honesty challenging. It’s a bit like submitting a detailed report on the crash of a passenger jet and only causally mentioning that the pilot was a kangaroo.

A case in point is McCarthy’s take on the dismissal of Geoffrey Berman, the interim U.S. attorney for the Southern District of New York (USA-SDNY). In case you had not heard, late Friday, June 19, the Justice Department issued a press release with three announcements by Attorney General Bill Barr: (1) President Trump “intends to nominate” Jay Clayton (currently the SEC chairman) as the permanent USA-SDNY; (2) Trump “has appointed” Craig Carpenito (currently the interim U.S. attorney for the District of New Jersey) to be the “acting” USA-SDNY effective July 3; and (3) Berman would “stepping down” from his position as the interim USA-SDNY.

Berman responded immediately by denying that he was stepping down and implying that he needed to stay on to protect the integrity of the SDNY’s investigations (which include politically sensitive investigations that could implicate the president’s personal or political interests). The next day, June 20, Barr wrote to Berman advising him that “[b]ecause 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.”

Noticeably absent from Barr’s letter was any claim that the president had asked for Berman’s resignation or had been involved at all prior to that day. Also unmentioned was any reference to the president’s alleged “appointment” of Carpenito that DOJ had announced the day before. Instead, Barr stated that by “operation of law” Berman’s deputy, Audrey Strauss, would become acting USA-SDNY, noting that “I anticipate that she will serve in that capacity until a permanent successor is in place.” The assurance regarding Strauss’s tenure was reportedly given as a concession for Berman to agree to leave quietly.

To add to the chaos, when asked about Berman’s departure, Trump told the press that he was “not involved.” The White House later “clarified” this statement to acknowledge that Trump had “signed off” on Barr’s recommendation that Berman be terminated. Whether this sign off occurred only after Berman refused to leave is unclear. There has been no other official or unofficial indication that Trump was involved in either Berman’s departure or the botched attempt to appoint Carpenito.

In two columns (June 20 and June 23), McCarthy defends the Trump administration against critics who conceive Berman’s firing to be part of an effort by the president and the attorney general to obstruct justice by derailing particular investigations that threaten Trump in some way. About this he is probably right, but he glosses over the incompetence, dysfunction and lack of accountability that have been so typical of this administration’s “personnel” actions.

 

Background

To understand these events, we need to back up a little. U.S. attorneys are ordinarily advice and consent offices, but the last Senate-confirmed USA-SDNY was Preet Bharara, who was appointed by President Obama. As McCarthy explains, President Trump initially indicated he would keep Bharara on, but changed his mind, leading to a “cringe-inducing messy departure that has become a staple of the Trump years.”

Following Bharara’s firing in March 2017, Attorney General Jeff Sessions appointed Berman as USA-SDNY pursuant to 28 U.S.C. 546 (a), which authorizes the attorney general to appoint a U.S. attorney, for a period not to exceed 120 days, for a district in which the office is vacant. When this appointment expired, Berman was then reappointed by the district court pursuant to 28 U.S.C. 546(d), which provides that if the attorney general’s temporary appointment expires the district court for that district “may appoint a United States attorney to serve until the vacancy is filled.” Since that time, Berman has been serving as U.S. attorney pursuant to that interim appointment (which is different than being an “acting” officer pursuant to the Federal Vacancies Act, which we will get to in a moment).

It is worth mentioning that there are interesting constitutional issues raised by these statutory provisions. Under the Appointments Clause, all principal officers of the United States must be appointed by the president with the advice and consent of the Senate; only inferior officers may be appointed by the president alone, the heads of departments or the courts. Thus, the statutory scheme is valid only if the office of U.S. attorney (or the office of U.S. attorney when filled on an interim basis) constitutes an inferior office for purposes of the Appointments Clause. Moreover, there are separation of powers issues posed by having the district court appoint an executive officer such as the U.S. attorney (see here for a law review article making that argument). For our purposes, however, I do not believe these issues are particularly pertinent.

Of more interest is the fact that the statutory scheme is designed to discourage attempts to circumvent the advice and consent process and to incentivize the president to submit a nomination to the Senate in a timely fashion.  The power to make interim appointments is given to the attorney general, not to the president, and the attorney general is prohibited from selecting someone previously nominated, but not confirmed, for the position. See 28 U.S.C. 546(b). Moreover, the attorney general’s appointment lasts for only 120 days, after which the district court is empowered to appoint someone until the position is filled by a presidentially appointed and Senate confirmed successor. See 132 Cong. Rec. 32806 (Oct. 17, 1986) (Rep. Berman) (no relation AFAIK).

McCarthy’s Defense

McCarthy argues that the absence of a confirmed USA-SDNY was “dysfunctional” on the part of the Trump administration and suggests that Clayton’s nomination shows that “Attorney General Barr has been trying to reestablish normalcy in that regard.” Ironically, though, the absence of a confirmed USA-SDNY is the one aspect of this episode that cannot be blamed primarily (or solely) on the administration’s dysfunction. According to published reports, the administration wanted to nominate Berman in January 2018 but was blocked by Senator Gillibrand’s opposition. Under the Senate’s “blue slip” process, either home state senator can block a U.S. attorney’s nomination, and Gillibrand announced she would block Berman because of concerns that he would not be sufficiently independent.  Indeed, none of New York’s four U.S. attorneys currently are Senate-confirmed (by contrast, all but nine of the remaining 90 nationwide have been confirmed). This suggests that Senators Schumer and Gillibrand have, at the least, not been terribly interested in getting confirmed officers in those jobs.

If  Barr had been concerned about the absence of a confirmed USA-SDNY, he presumably would have acted long before now. In fact, it appears that the idea of nominating Clayton did not originate with him at all, but with Clayton himself. According to Clayton’s testimony before a House committee last week, he first brought up the subject about week before the DOJ press release, and had not discussed it with either Trump or Barr prior to that time. His conversation with Trump apparently took place while they were golfing together on June 13. Clayton explained that his reason for seeking the USA-SDNY position was that he wanted to move back to New York.

Evidently Trump was supportive of the nomination and conveyed that to Barr either directly or through Clayton. At this point, we have no way of knowing whether Trump was in any way influenced by his view of Berman (assuming he even recalled that Berman was the USA-SDNY) or anything that was happening in the SDNY office.

McCarthy argues that the Trump administration was not only entirely within its rights to nominate a USA-SDNY, but was well advised to “fill the job with someone the administration both likes and believes could get confirmed,” i.e., Clayton. However, while there is nothing wrong with nominating someone the president “likes,” this is hardly a sufficient or compelling reason for this nomination. As far as we know, Trump “likes” Clayton because Clayton lets him win at golf.

Furthermore, if either Trump or Barr thought it likely Clayton could be confirmed, this was a rather foolish misjudgment. As McCarthy himself observed, as a practical matter “there is no way [Clayton] would be confirmed before Election Day.” This would probably be true even if Clayton were superbly qualified, but, as McCarthy also acknowledges, someone who has never been a federal prosecutor is a “peculiar choice” given that nominees for USA-SDNY “invariably have a few years of prosecutorial experience under their belts.” In short, it made no sense to nominate Clayton at this point in time, something that could have easily been verified by outreach to the Senate.

In a normal administration, the fact that the president decided to nominate for an important position a marginally qualified nominee with no chance of confirmation based on chit-chat at a golf game, with little or no vetting and without advance notice to the Senate, would be a major embarrassment, if not exactly an earthshaking scandal. No one, however, expects that President Trump would give a moment of thought to such matters. Whether Attorney General Barr flagged them and if not, why not, are at least interesting questions.

The real issue in this case, however, is only tangentially related to the putative Clayton nomination. It is why the Justice Department announced the departure of Berman and the appointment of Carpenito as acting USA-SDNY. As numerous people have pointed out (and McCarthy acknowledges), there was no need for Berman to leave because his tenure under the statute lasted until Clayton or some other successor was confirmed by the Senate. So the fact that Trump wanted to nominate Clayton for unknown reasons says nothing about why someone considered it desirable to secure Berman’s immediate departure.

The popular and sinister explanation is that Trump and Barr wanted to derail certain investigations being conducted by Berman’s office which threatened Trump’s personal interests. This is possible, but I think unlikely for several reasons. For one thing, when Trump wants to fire someone because he thinks he is being “unfairly” investigated (e.g., Comey, Mueller, Sessions), he is not known for keeping it close to the vest. If Trump had it in for Berman, he would have been more than happy to share his grievances when asked about Berman’s firing. The fact that there is no evidence that Trump was upset with Berman supports his claim that he was “not involved” with the decision to seek his departure.

Moreover, as McCarthy lays out, it is implausible to believe that firing Berman would in fact successfully derail any investigations being conducted by his office. This, of course, would not stop Trump if he got it into his mind that Berman should be fired; he has a long track record of counterproductive efforts to interfere with investigations by firing the person he deems responsible (again, Comey, Mueller, Sessions). But Barr is unlikely to have gone along with such a harebrained scheme.   Moreover, as McCarthy points out, Barr has now invited the DOJ Inspector General to scrutinize any allegations of political interference with SDNY investigations. Thus, to accept the sinister theory, one would have to believe that Barr both agreed to fire Berman to derail certain investigations and then went out of his way to make it more difficult to achieve his boss’s objective.

What then is the less sinister explanation for why Berman was fired? Assuming that I am correct that Trump was not the moving force for the dismissal, it must have been Barr’s idea. Barr has not offered any explanation other than the statement in his June 20 letter to Berman that “I wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as United States Attorney.” This, however, is no explanation because, as already discussed, there was no need to replace Berman in order to nominate Clayton.

Recognizing the absence of an official explanation, McCarthy endeavors to supply one by pointing to a recent dispute between Berman and Main Justice in which Berman allegedly refused to sign a letter from DOJ’s Civil Rights Division to New York Mayor Bill de Blasio warning him not to discriminate against religious activities in enforcing lockdown orders. McCarthy explains that the “Justice Department is entitled to enforce the president’s lawful policy—including by directing U.S. attorneys across the country to support the effort.” If Berman objected, he “is entitled to his opinion . . . but no one elected him to anything.”

One problem with this narrative is that neither the president nor the attorney general has identified this as a reason for Berman’s firing. McCarthy, in fact, acknowledges that “DOJ is downplaying the dispute as a factor in Berman’s ouster.” This is critical because the key constitutional rationale for recognizing an executive power of removal is accountability, i.e., that the president will have to answer to the people for removing his subordinates. This accountability is undermined when the executive provides no reason or a false reason for a removal.

It is no doubt true, as McCarthy suggests, that if an attorney general and a U.S. attorney get into a dispute, whether of a policy, political or personal nature, the U.S. attorney will normally lose and sometimes find himself looking for a new job. This, however, is an observation about political reality, not constitutional principle. As a matter of constitutional theory, the removal power belongs to the president alone (except where Congress has by law authorized others to exercise it) as a consequence of his constitutional obligation to take the laws be faithfully executed. See Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. __, slip op. at 12-13 (June 29, 2020). To fulfill this obligation, subordinate executive officers must be accountable to the president (so the theory goes), who in turn is accountable to the people (both directly and to some extent through their representatives in Congress). See id. at 23.

If the president removes an officer for corrupt reasons, he can be impeached by the House and removed by the Senate. If he removes a meritorious officer for arbitrary and capricious reasons, James Madison suggested, he could likewise be subject to impeachment for such “wanton” acts, though Congress has never attempted to pursue such a theory (luckily for President Trump). Apart from impeachment, the exercise of the removal power is subject to ordinary congressional oversight and ultimate accountability to the people. In other words, the fact that the president has the power to remove does not mean that his reasons for removal cannot be scrutinized.

Here it appears that the president may have had no role at all in deciding to remove Berman. Rather, Barr attempted to strong arm Berman into resigning, possibly without even informing the president, and, when Berman refused, prevailed upon the president to back him up. Given that Barr, like Berman, was not elected to anything, McCarthy’s attempt to justify the firing simply by citing the president’s constitutional power of removal is extremely weak.

As the Supreme Court explained just yesterday, the president’s removal power is founded in his sole political accountability as the source of executive authority. See Seila Law, slip op. at 22 (“The President’s political accountability is enhanced by the solitary nature of the Executive Branch, which provides ‘a single object fo the jealousy and watchfulness of the people'”) (quoting Federalist No. 70). Advocates of the unitary executive cannot have it both ways, insisting that the president has a constitutional right to remove officers for any reason and then allowing the president to claim he was “not involved” in the exercise of that power. If the president chooses to act as a rubber stamp for a decision made by someone else, he is still responsible and accountable for that decision.

The exercise of the removal power here was particularly problematic given the nature of Berman’s appointment. Because he was appointed by the district court, by law Berman’s appointment was to last “until the vacancy is filled.” While it is likely (though not certain) that this statutory language does not deprive the president of his power of removal, exercising that power conflicts with at least the spirit of the law, particularly when it is done for less than compelling reasons. By removing Berman before a successor has been confirmed (or nominated, for that matter), the president undermines Congress’s intent that the district court make the appointment under these circumstances.

The Need for Oversight

Congress should probe Berman’s firing, but not primarily for the purpose of determining whether it was corruptly motivated. Rather the focus should be on when Barr recommended that Berman be fired. Was it only after Barr had publicly and unsuccessfully tried to strongarm Berman into resigning? Did Barr mislead the president into believing that Clayton’s nomination meant that Berman needed to move on? If not, what reason did Barr give for getting rid of him? Did Barr explain that Berman had been appointed by the district court and that firing him might be seen by the court and/or Congress as executive overreach?

Other questions relate to DOJ’s June 19 press release. Its claim that Berman was “stepping down” has been described as a deliberate falsehood. My initial reaction was this charge was a bit overwrought; I think most people could read through the lines that Berman was not necessarily “stepping down” voluntarily. On the other hand, if the president had not authorized Barr to seek Berman’s resignation, and Berman himself had not agreed to resign, it seems clearly improper for DOJ to have announced the resignation, whether or not one thinks the press release was false in this regard.

Even more concerning is the announcement that the president “has appointed” Carpenito to serve as the acting USA-SDNY. Under the Federal Vacancies Act, when the occupant of an advice and consent office “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” the first assistant ordinarily assumes those functions and duties in an acting capacity. 5 U.S.C. 334(a)(1). In the case of the USA-SDNY, this would be Berman’s deputy, Audrey Strauss. However, the next paragraph of the Vacancies Act provides:

[N]otwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity. . . .

5 U.S.C. 3345(a)(2). This is the paragraph DOJ relied on for Carpenito’s “appointment.”

Invoking this provision was problematic given that at the time of the press release Berman had not resigned and his office was therefore not vacant. Moreover, unless Trump had already formally directed Carpenito to take over the functions and duties of the USA-SDNY upon Berman’s resignation, the press release is misleading at best. And if Trump had made no decision to “appoint” Carpenito or was unaware of the matter entirely, the press release is an outright falsehood. As the statute makes clear, Barr had no authority to designate Carpenito as acting USA-SDNY on the president’s behalf or otherwise. It seems obvious that the press release and Trump’s claim the next day that he was “not involved” cannot both be true.

Furthermore, Carpenito was probably not eligible to serve as acting USA-SDNY. Although he occupies an office for which advice and consent of the Senate is ordinarily required (namely the U.S. attorney for the District of New Jersey), he himself was appointed to that office by the district court under the same interim appointment provisions as Berman. As McCarthy points out, this creates a significant issue as to Carpenito’s eligibility. The evident purpose of the law is to allow the president to designate an acting officer who has already been confirmed by the Senate, which Carpenito has not.

Congress therefore should determine whether Trump, at the time of the press release, had in fact directed Carpenito to assume the functions and duties of the USA-SDNY. Had Barr recommended to Trump that Carpenito be named as acting USA-SDNY? If so, what was the basis of the recommendation? Had Trump accepted it? Did anyone consider whether Carpenito was actually eligible? Had anyone actually talked with Carpenito about this?

At this point we have no idea what it was that Barr was trying to achieve with the removal of Berman and the attempted substitution of Carpenito, but we can say with certainty that whether the desired end was nefarious or not, the means chosen were ridiculously miscalculated to achieve them, and the resulting fiasco seems entirely foreseeable. In any normal administration, Barr’s job would be in jeopardy for incompetence, if nothing else. But since no one expects that the president is going to demand competence in his administration (or that he even understands the difference between competence and incompetence), neither the president’s supporters nor his critics are likely to press this issue.

I suppose there is something like a one in a million chance that Barr had a good reason for the personnel moves he proposed, that he fully and fairly informed Trump of his recommendations, and that Trump had signed off on them at the time the press release was issued. (This would make Trump’s claim that he was “not involved” rather untrue, but the president saying untrue things is scarcely a matter of moment.) Absent that, however, we have a situation whether the attorney general is making decisions he has no authority to make for reasons he has not disclosed, while flouting statutory provisions designed to protect the Senate’s advice and consent role.

In a better world, the Senate would be taking the lead in scrutinizing these events since they implicate its constitutional power to advise and consent to the appointment of executive officers. There is no indication that it will do so, however. Its lethargy is conventionally ascribed to the desire of the Republican majority to protect the administration, and no doubt that plays a major role. A less remarked problem is that senators on both sides of the aisle seem to accept that presidents have carte blanche to fire executive officers as long as they are not acting for corrupt or illegal reasons. Thus, there has been little interest, even from Democratic senators, in the firings or unhappy departures of officials such as Secretary of State Tillerson, Attorney General Sessions, Secretary of Defense Mattis and Secretary of Homeland Security Nielsen. The fact that the president fires people based on whim, personal grievance or other reasons having no connection to his constitutional oath or obligation to take care the laws be faithfully executed is met with a collective shrug.

Confirmation hearings for the Clayton nomination would provide an opportunity to probe the events surrounding Berman’s dismissal, but these are unlikely to occur. Senate Judiciary Committee Chair Lindsey Graham immediately announced that he would respect the blue slip process, which means that Senators Schumer and Gillibrand can and will block the nomination. Conveniently, this means Graham avoids hearings that could embarrass the administration. Schumer and Gillibrand could presumably offer to return their blue slips in exchange for a robust investigation, but they may prefer to avoid an inquiry that might call attention to their role in blocking Berman’s nomination (as well as nominations for other U.S. attorneys in New York). Schumer has called for an internal DOJ investigation, which seems ironic given the president’s penchant for firing inspectors general whom he finds disloyal or troublesome.

In short, in a system designed to ensure that the president and the Senate share responsibility and accountability for appointments, most likely no one will be held accountable for anything. Instead, the end result is that for the foreseeable future the functions of the USA-SDNY will be performed by Strauss, who was not selected by the president, the Senate, the attorney general or the district court. No one “elected to anything” or even appointed by anyone “elected to anything” can be blamed for anything she does. Good job, everybody.

 

 

 

 

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