Barr attempts to fire US Attorney for SDNY, who refuses to step down (1 Viewer)

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GrandAdmiral

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Well it will be interesting what develops from this over the next few weeks...


Moral of the story: don't piss off the fair leader.
 
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GrandAdmiral

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Berman just released a statement that he has not resigned and will not step down until the Senate confirms someone. He is daring Barr and Trump to outright fire him if they can. Preet Bharara is on CNN is saying that they can't fire him.

I need some popcorn... This is going to be good.

🍿
 

superchuck500

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So I think the rule on this is that US attorneys are considered inferior officers of the executive branch - and because they are Senate-confirmed, they cannot be fired at the president’s whim (rather, it requires cause). Morrison v. Olson (1988).

The story here is that Barr offered Berman other positions at DOJ - which means he can’t have been fired for cause. Or at least as the argument goes.



 
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GrandAdmiral

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So, I missed most of what Preet was explaining how the Court appointed him to the position (he wasn't Senate-confirmed). Can somone shed some light how that's actually doone for a position under the executive branch?
 

superchuck500

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So, I missed most of what Preet was explaining how the Court appointed him to the position. Can somone shed some light how that's actually doone for a position under the executive branch?
The two links I posted should shed light on that.

I didn’t hear Preet but USAs arent court-appointed. But they are senate-confirmed inferior officers. (EDIT - this is incorrect - USAs can be court appointed under the interim appointment statute).
 
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The two links I posted should shed light on that.

I didn’t hear Preet but USAs arent court-appointed. But they are senate-confirmed inferior officers.
Everyone on CNN is saying that Berman was never confirmed by the Senate and was appointed by the judges (particularly the chief judge) of the SDNY.
 

superchuck500

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Everyone on CNN is saying that Berman was never confirmed by the Senate and was appointed by the judges (particularly the chief judge) of the SDNY.
Hmm, wasn’t aware of that. I was just following typical rules for USAs. I’ll read up -cause I sure as hell ain’t watching CNN 😂
 
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So I rewound the TV (thank goodness for YouTubeTV). Preet explained it this way:

1. Preet was asked by Trump to step down.
2. An acting USA was put in place of Preet.
3. The acting USA can only serve a limited term.
4. At the end of the term, there either has to be a Senate-confirmed USA or at that point, the chief Judge of that district appoints the USA.

Supposedly this is in the law.
 

superchuck500

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Ah okay, he was an interim appointment after Preet was ousted. The 120 day interim period expired and there had not been a confirmation so the district judges can make appointment pending replacement by an appointed and confirmed USA.

Another example of this administration being sloppy and getting tripped up by the rules.
 

superchuck500

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So I rewound the TV (thank goodness for YouTubeTV). Preet explained it this way:

1. Preet was asked by Trump to step down.
2. An acting USA was put in place of Preet.
3. The acting USA can only serve a limited term.
4. At the end of the term, there either has to be a Senate-confirmed USA or at that point, the chief Judge of that district appoints the USA.

Supposedly this is in the law.
Yep - once the interim period expires and the district judges appoint the US attorney, he/she can only be replaced by a confirmed appointee.

Berman had an ace up his sleeve. For now at least.
 

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GrandAdmiral

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A 1979 OLC opinion concludes that the president can remove a court-appointed interim appointee. Keep in mind that OLC opinions aren’t law - and are less persuasive when they involve matters beyond pure DOJ. There may also be in play the inferior officers rule that requires cause for their removal.

I wonder if this is why Barr's statement said it was effective two weeks from now. Perhaps he was expecting resistance. I wonder if this ends up in court.
 

superchuck500

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I wonder if this is why Barr's statement said it was effective two weeks from now. Perhaps he was expecting resistance. I wonder if this ends up in court.
Could very well - depending on what Trump does. If he tries to remove Berman without a senate-confirmed replacement, it could end up in SDNY (that appointed Berman), with appeal to the 2d Circuit and then to SCOTUS. I would imagine that if it does go to court, the SDNY would let Berman stay pending ruling.

Just a hunch based on the orientation and rules.
 

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