FRIDAY NIGHT MASSACRE?

That's what the press is calling the Barr v Berman clash that hit the media Saturday morning.

It's complicated, so I will note the key ingredients:

In March, 2017, President Trump fired SDNY US Attorney Preet Bharara, and Berman was appointed as interim US Attorney.

The appointment was seen as a political take-over of the "Sovereign" District of New York. Berman was a Republican campaign contributor, was on the Trump transition team, and most damning, had been a law partner of Rudy Giuliani. In a  break with tradition, Berman was interviewed by the President himself.

Democratic Senators vowed to resist his confirmation, and Trump never did send his name to the Senate.

Four months later, Chief Judge Colleen McMahon, sent a letter to the 40 SDNY judges, referring to the Judiciary  Law proviso that if an interim US Attorney is not confirmed in 120 days, the judges of the district could appoint one. Which is what they did at their next meeting: they unanimously appointed Berman.

Berman must have been a great disappointment to Trump's demand of loyalty to Trump as opposed to loyalty to the Constitution. When the SDNY began a criminal investigation of Trump lawyer Michael Cohen, Trump and his acolyte Giuliani attacked the prosecutors as "storm troopers" who were engaged in a "witch hunt." Not only that, the indictment of Cohen alleged he was assisted in the crime of campaign fraud by "Individual 1", i.e., Donald Trump! It appears that Berman, like Sessions, had committed the cardinal sin: HE HAD RECUSED HIMSELF FROM THE INVESTIGATION.

The SDNY thereafter indicted Giuliani helpers Lev Parnas and Igor Fruman, and reportedly is pursuing a criminal investigation of Giuliani. Bolton's new book also reveals Trump's frustration with the SDNY because it indicted a Turkish company that Trump assured Erdogan would be protected. Bolton says Trump has vowed the clean out the prosecutors in the SDNY because they are "Obama people" and "not my people."

And most of Trump's business headquarters are in the SDNY, and the list of criminal investigation opportunities there is a long one. 

Finally, what tipped the balance? Why now? What's going on in the leakproof SDNY that has driven Trump over the edge?

Bottom line, Berman has turned out to be a Constitutional loyalist, rather than a Trump loyalist, and Trump has decided he must go.  But how?

For some reason, Trump did not want the stain on his hands, so he set his pet bulldog to the task.

At nine o'clock Friday night, Barr issued a statement saying Berman had done a great job and  was "stepping down.''

At 11 o'clock Friday night, Berman issued a statement saying, in effect, "Who me? I wasn't appointed by you, Asshole, I was appointed by the judges of the Southern District, and until a successor is appointed by the President, and confirmed by the Senate, I'm going to work every day doing my job."

The press has referred to this as a Friday night massacre because of the unusual manner and timing of the effort to get rid of Berman. Friday night is the preferred time to announce events the government wishes to downplay in the press. And the plan to do this on the night of the great Tulsa Rally would have put the item on page 16. Except the rally got postponed a day because of Juneteenth, and here we are on page one of the NYT.

The new designee to head the office will be Jay Clayton, currently head of the SEC. He is a mergers and acquisition lawyer from Sullivan & Cromwell, has represented the likes of Deutche Bank and investment banks. He was never a prosecutor, and as far as I can tell, has never tried a case or even seen the inside of a courtroom.

Barr announced that Clayton's name will be sent to the Senate by the President.  But as of today, it does not appear Clayton can be confirmed. Both NY Senators oppose the nomination, and Lindsey Graham, Chairman of the Judiciary Committee, has said he will abide by the Senate's "Blue Slip" rule and give the NY senators an effective veto.

Barr says that until Clayton is confirmed, the office will he headed by the current US Attorney for New Jersey -- Jared Kushner's home state.

Berman's apparent argument is "there is but one chair behind the desk in the US Attorney's office in Foley Square, and I'll be sitting it until this mess is cleared up."

So what happens now? What's the law? Some things are clear, some are not. There appears to be little doubt that Barr cannot fire Berman, and Barr cannot appoint a US Attorney to sit on Berman's lap.

Can the President fire Berman? Probably. Maybe. A statute that appears to give him that power is part of a section of the code that deals with US Attorneys confirmed by the Senate. But does it apply to US Attorneys appointed by the court? A 1979 DOJ Office of Legal Counsel opinion says "yes," but that opinion ain't the law, and history suggests that office's opinions are sometimes nothing but cover for the wishes of the Attorney General. (See my blog of 29 May 2019) https://londonsbh.blogspot.com/search?q=OLC

In any event, no COURT, as far as I can tell, has ever dealt with this precise issue of statutory construction.

This just in: Barr just sent a letter to Berman saying:

"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."

But when asked about that by the press, the President reportedly said:

"Attorney General Barr is working on that. That's his department, not my department."...."But we have a very capable attorney general. So that's really up to him. I'm not involved."

What a mess.

Now what happens? 

If this matter is litigated, what court? Will all SDNY judges who voted to appoint Berman need to recuse themselves? What about SDNY judges who were appointed after that vote? Will it go straight to the Circuit Court? Will Barr make the first strike and sue in the D.C. District Court? Or New Jersey? Oklahoma? 

I need a drink.  What am I going to blog about when Biden is President?

A bientot.

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If you want to read more about the corrupt OLC opinion cited above, ck out my memoir "The Client Decides" on KIndle or available at Amazon.