Geoffrey Berman did not become Manhattan’s chief federal prosecutor by traveling the usual course.
He was not nominated by a president or confirmed by the Senate. Because of that, the question of who actually holds the authority to remove him — as Attorney General William Barr sought to do late Friday night — is not entirely clear.
Berman was appointed as interim U.S. attorney for the Southern District of New York in 2018 by then-Attorney General Jeff Sessions following a purge of federal prosecutors in the early days of the Trump administration.
When the interim term of 120 days lapsed without a formal nomination by the president, the judges in the New York district exercised their authority to make Berman’s appointment official, at least until another candidate is nominated and confirmed.
Berman is now leaning heavily on that rarely invoked provision to maintain control over the Justice Department’s most prestigious office outside of Washington, D.C.
“I have not resigned, and have no intention of resigning, my position to which I was appointed by the judges of the United States District Court for the Southern District of New York,” Berman said after Barr abruptly announced that the prosecutor was “stepping down.”
“I will step down when a presidentially appointed nominee is confirmed by the Senate,” he said.
Berman, who has launched investigations and prosecutions of several associates of President Donald Trump, may not hold the last word — no matter his defiance. The attorney general’s authority also is in question, setting up an extraordinary struggle for control of a crucial Justice Department office that has prosecuted Trump’s former personal attorney Michael Cohen and is heading an investigation of the president’s lawyer and close adviser Rudy Giuliani.
The Giuliani inquiry has focused in part on the former New York mayor’s work with business associates Lev Parnas and Igor Fruman, who helped Giuliani seek damaging information in Ukraine about the family of Joe Biden, the former U.S. vice president and presumptive Democratic nominee for president in the 2020 election.
A Justice Department opinion, although authored more than 40 years ago, addresses the lines of authority in such unusual cases. It concludes that the president — not the attorney general or a consortium of judges — has the power to remove a U.S. attorney who holds the position by judicial appointment.
In such cases, the opinion states, “the power of removal may be even more important to the president than the power of appointment.
“Indeed, it is the power to remove, and not the power to appoint, which gives rise to the power to control,” the memorandum states. The document raised potential conflicts of interest if judges were authorized to remove prosecutors.
“Due process problems could arise if a court, through the exercise of its removal power, (was) enabled to control the manner in which a prosecutor performs his official duties. We therefore are of the opinion that the power to remove a court-appointed U.S. Attorney rests with the president,” the memo states.
Some legal analysts, however, disagreed, saying that provisions of the law allowing for the judicial appointments of U.S. attorneys should control.
“Berman is the Acting U.S. Attorney by dint of a ‘judicial’ appointment,” University of Texas law professor Stephen Vladeck tweeted Saturday. “There’s a pretty good argument that, per the plain language of (the law) he gets to keep serving in that post until the ‘vacancy’ is filled through Senate confirmation of a permanent successor.”
David Weinstein, a former federal prosecutor in Miami, believed Berman’s interpretation is “correct.”
“The Department of Justice opinion is simply that — an opinion,” Weinstein said, adding that the document is not binding. He said Trump lost his control over Berman when he failed to nominate a candidate during Berman’s interim tenure.
“This all falls back on the president because of his failure to act,” Weinstein said, adding that a resolution may be up to the courts.
The urgency of Barr’s Friday night action also was not immediately clear. Equally unexpected was the accompanying announcement that Trump intended to nominate Jay Clayton, the Securities and Exchange Commission chairman, who has no experience as a federal prosecutor.
Instead, Barr hailed Clayton’s “management experience and expertise in financial regulation.”
Until Clayton’s nomination is considered by the Senate, the attorney general said the president was appointing New Jersey’s chief federal prosecutor, Craig Carpenito, to take Berman’s place, beginning July 3.
Rather than argue that Berman was being removed for cause, the attorney lavished praise on the prosecutor, saying he performed with “tenacity and savvy.”
“The attorney general, himself, acknowledged that there was no reason for his removal,” Weinstein said. “I think we’re in for a battle. I think Berman should stand his ground. What does he have to lose? If he does, this could end up in the Supreme Court.”