Somebody better wake up the shade of Machiavelli, or at the very least Richard Nixon, and get some input on the latest move in the palace intrigue of Bill Barr’s botched and bungled Friday Night Massacre. As of mid-afternoon Pacific Time here’s the latest, but not necessarily the last word.
The last time Trump fired a high-profile DOJ figure, he ended up with Robert Mueller, a year of bad headlines and an impeachment.
Trump will be in no hurry to run out in front of Berman’s alleged firing.
There is a chance Barr may have gotten out over his skis here.
— The Hoarse Whisperer (@HoarseWisperer) June 20, 2020
Trump told Ukraine to talk to Rudy and Barr.
Prosecutors in the Southern District of New York subpoenaed all of Rudy’s communications.
Barr tried to fire the person leading that investigation.
Boy, that’s quite a coincidence.
— The Hoarse Whisperer (@HoarseWisperer) June 20, 2020
Now this makes a lot of sense. I don’t think it’s much of a stretch to say that this was probably the burr under Barr’s saddle that caused his inopportune and unwise termination of Geoffrey Berman. Now here’s what Berman is doing to fight back.
Berman backed Barr into appointing a replacement who is far more of a DOJ lifer than he was.
Barr just threw the SDNY investigations out of the frying pan and into the fire.
And now Berman is free to speak. https://t.co/6AlCwooXOx
— The Hoarse Whisperer (@HoarseWisperer) June 20, 2020
Here’s the statement, that went out on Justice.gov
Statement Of Geoffrey S. Berman
“In light of Attorney General Barr’s decision to respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney, I will be leaving the U.S. Attorney’s Office for the Southern District of New York, effective immediately. It has been the honor of a lifetime to serve as this District’s U.S. Attorney and a custodian of its proud legacy, but I could leave the District in no better hands than Audrey’s. She is the smartest, most principled, and effective lawyer with whom I have ever had the privilege of working. And I know that under her leadership, this Office’s unparalleled AUSAs, investigators, paralegals, and staff will continue to safeguard the Southern District’s enduring tradition of integrity and independence.”
This is good. Berman’s colleague and right arm, Strauss, is now in charge and now all eyes are on SDNY. I think it’s safe to say that Bill Barr blew it.
Also, go back earlier in the day and you’ll see that Barr offered Berman a position in the Justice Department, which was some inducement for him to play ball and obviously that backfired, when Berman declined the new post and publicly said he wasn’t resigning. So Berman has made Barr look like a fool, and provoked Trump into telling a blatant lie on live television. Good day’s work. I applaud the man. And Barr is apparently figuring out this isn’t Iran Contra and Trump has no problem leaving him in the field. Good, all good.
And trump still doesn’t get what he wants. I like it,
It doesn’t look like Rudy is protected or the investigation shut down, if that was the purpose of all this.
I wish I could agree with you but as I’ve written in comments on other articles I can’t bring myself to believe Barr has the slightest intention of holding up his end of the “bargain” Berman believes he’s struck. Under the controlling statute that put Berman in as U.S. Attorney for SDNY in the first place he’s entitled to remain there until a successor is confirmed by the Senate. Barr’s bullshit notwithstanding neither he, nor even Trump can fire him.
However, if as now it seems he’s done and resigned and BARR gets to name an Acting U.S. Attorney THAT person serves at the pleasure of the President and CAN be removed by Barr/Trump. Okay, so it will look bad and cause an uproar but at this point I don’t think Barr really gives a fuck. He’s got his own ass to look out for and without Trump as President providing cover (and a pardon if need be) he’s screwed. Desperate people do desperate things, and I think we’ve just seen how desperate Barr is getting.
Unless Berman secured an ironclad legal document from Barr promising not to fire the new, Acting U.S. Attorney I’d bet the farm he will renege on his promise to Berman. He’ll do so as soon as something huge overtakes the news, something sure to command days worth of news cycles if possible. But if it comes down to it he’ll just do another late (later than last night) firing and let the chips fall where they may.
There is no bargain. Berman’s got Barr over a barrel in ways we shall find out about later. Otherwise, Berman would still be there. Don’t be surprised if the judges confirm Strauss as the new acting head until Senate confirmation says otherwise. I’d also advise getting a better bookie.
The controlling statute allows the AG (at the President’s direction) to name an Acting U.S. Attorney in a given jurisdiction for a period not to exceed 120 days. Once that time is up another individual must be appointed. The whole idea is to ensure someone is actually nominated and goes through the process of being confirmed by the Senate. Those who wrote and passed the controlling statute had the foresight to provide a contingency if for some reason a President & AG never got around to nominating (and the Senate confirming) a permanent U.S. Attorney in a vacancy. It allows the Chief Judge of the jurisdiction in question to name a suitable Acting U.S. Attorney (with the approval of the other Judges and in this case it was unanimous) who will then remain in the role until the administration gets around to nominating (and the Senate confirming) a permanent U.S. Attorney. The interesting (to me) part is that once things get to that point (as was the case with Berman) is that at that point the Executive Branch has no control. Neither the President or the AG can fire a person installed under that part of the statute. Only a Senate confirmed individual can replace that person, and Trump/Barr never got around to even starting the process!
Legally Berman was on solid ground. He didn’t have to leave unless he chose to do so. For all Barr’s bluster neither he, nor even the President himself could fire him. Barr would have turned himself into an even bigger fool by going to court to argue having the authority to fire Berman.
So where are we now? Berman has resigned effective immediately. Trump/Barr are now back in control as anyone they put in the role can hold it for up to 120 days which takes us through the election. Here’s the thing though – we are back to the part of the statute that gives the administration control which means the new person serves at the pleasure of the President and can be replaced at any time with or without “cause.” Barr might have “promised” to leave Berman’s Deputy in the job, and verbal contracts are enforceable in court but good luck on something like this. There is a shitload of case law and precedent that heavily weights things towards this or any President when it comes to appointees, and NOW we have things back to an Acting U.S. Attorney appointed by the President.
Maybe you’re right and Berman has some serious shit on Barr – the kind of “Ok – I’ll get this out of the news by walking away IF you appoint my Deputy and IF you leave her alone to do her job the way it’s supposed to be done. And if you fuck me over and break your word here’s some of what I’ve got on YOU that will take YOU down.” I hope that’s the case. I’d much rather I be wrong and that you be right about this.
But I’d still bet on Barr doing what was previously unthinkable to protect Trump and/or Trump World if it comes to that.
Sorry bub, might want to brush up on your U.S. Code.
Also, Barr himself cited two instances of precedent confirming this power to be held by the president.
You’re just plain wrong.
“(c)Each United States attorney is subject to removal by the President.”
https://www.law.cornell.edu/uscode/text/28/541
Sounds like Barr is playing chess with a master, not a rookie.
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