When can federal judges, selected and given life tenure under Article III of the Constitution, inject themselves into core prosecutorial functions and decisions managed by the U.S. Department of Justice (DOJ), which itself is overseen by the President under Article II of the Constitution? This is a big question that has captured headlines in recent weeks. First there is the (still ongoing) dispute, dating back to early May, over whether federal prosecutors can dismiss the criminal charges against former National Security Advisor Michael Flynn now, after he has pleaded guilty and is awaiting sentencing, in spite of concerns the district court judge (Emmet Sullivan) apparently has about the strength of the government’s reasons for wanting to dismiss. And then much of the news cycle this past week has focused on the administration’s efforts to replace an interim United States Attorney for the Southern District of New York who had (curiously enough) been appointed (most recently) by the judges of the federal district rather than by higher-ups in the federal executive branch.
From one perspective, the answer to these two disputes turns on a fundamental (and, for some, controversial) conception of executive authority and autonomy—the extent to which the President and his underlings must be able to exercise control over the criminal prosecutorial function. As I have explained in prior columns (including this one), I think the current Supreme Court (rightly) favors some version of a so-called “unitary” executive theory, under which all actors who carry out core executive powers within the federal executive branch must be effectively controllable by the President himself. Under this approach, the decision whether to proceed criminally, and the decision whether and when to defer to executive branch underlings in criminal matters, is one the Constitution commits to the President.
But it turns out that the recent dispute over the U.S. Attorney for the Southern District of New York needn’t have ever arisen in the first place. Had the President and the attorney general (AG) played their cards better—had they been more legally savvy and organized—they could have easily had their way on this matter with no fuss, no muss, and no easy pushback, even from foes of the unitary executive theory.
Some background: Geoffrey Berman became the U.S. Attorney for the Southern District pursuant to an interim appointment made by then-Attorney General Jeff Sessions in January 2018. President Trump had fired the previous U.S. attorney for the district, Preet Bharara, in 2017, and no one had yet been confirmed by the Senate to become Bharara’s successor. The statute under which Berman was appointed, 28 U.S.C. § 546, provides that “the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant,” so long as the person appointed by the AG is not someone whom the President has tried to appoint as U.S. attorney but whom the Senate has “refused” to confirm, and so long as the AG’s appointment does not last more than “120 days.”
One hundred twenty days came and went for Mr. Berman, and then, in April of 2018, he was re-appointed to the same interim U.S. attorney position, but this time by the judges of the district court. How so? The statute mentioned above, 28 U.S.C. § 546, also provides that if an AG appointee’s term expires because it has exceeded the 120-day limit, “the district court for such district may appoint a United States attorney to serve until the vacancy is filled.”
There things stood until last week. (Over the intervening two years, Mr. Berman was involved in a number of high-profile investigations within the Southern District, causing some people to question the motives of the administration in seeking to remove him now—a topic I don’t opine on here.) On June 19, Attorney General William Barr announced that Berman was stepping down and would be replaced on a temporary basis by Craig Carpenito, the U.S. Attorney for the District of New Jersey. Attorney General Barr also indicated the President planned to nominate Securities and Exchange Chairperson Jay Clayton, whom the President hoped would be confirmed by the Senate, to be the U.S. Attorney for the Southern District on a more permanent basis.
Mr. Berman then loudly and publicly refuted Mr. Barr’s assertion that Berman was resigning. Berman also pointed to the fact that he had (most recently, at least) been appointed by the district court, and not the AG, the implication being that since the AG was not responsible for Berman’s current appointment, the AG could not remove him. Mr. Barr then apparently asked the President to formally remove Mr. Berman, a power the President has under a different federal statute, 28 U.S.C. § 541, which provides in blanket terms that “[e]ach United States attorney is subject to removal by the President.” (Such absolute presidential removal power is, in my view, present under the Constitution itself.) After Berman was notified of the President’s invocation of § 541’s removal power, Berman announced he would leave office voluntarily. (I should note here that President Trump initially created more confusion still by telling reporters shortly thereafter that he was “not involved” in Berman’s discharge—the one thing a President trying to support his attorney general and accomplish a change should not have uttered. The President could easily have said he removed Berman on the recommendation of Mr. Barr, laying public responsibility at Barr’s feet, but not mucking up the question of whether § 541 presidential removal power had been exercised. More recently, the White House walked back the President’s confusing—and seemingly false—statement.)
Even though Berman has agreed to leave, opponents of the administration are claiming victory. While, as noted above, Mr. Barr had earlier indicated that he would name Craig Carpenito to serve as Berman’s acting replacement, now Barr has said instead that “by operation of law,” Audrey Strauss, Berman’s current deputy and someone who is not seen as being particularly close to Mr. Barr, will become acting U.S. attorney. And Barr went further and said that he “anticipate[s] that [Ms. Strauss] will serve in that capacity until a permanent successor is in place.”
What a mess. Federal judges are picking federal prosecutors, and prosecutors are defying higher authorities within the Department of Justice.
But with just a tad more legal skill, the executive branch could have easily and effectively kept judges out of the picture. The Trump-Barr administration could also have easily accomplished its desire to replace Mr. Berman with Mr. Carpenito instead of Ms. Strauss.
Note first that 28 U.S.C. § 546’s conferral of power on federal judges to pick U.S. Attorneys is pretty unusual, and possibly constitutionally problematic. This statute was mentioned by the Court in 1988 as support for its opinion in the famous independent counsel case, Morrison v. Olson, involving another, more well-known, statute (part of the Ethics in Government Act of 1978) in which judges were given power to pick prosecutors. But as I have explained in a previous column, Morrison likely doesn’t command support by a majority of today’s justices. (Even Justice Kagan has been vigorously critical of the Court’s opinion in Morrison, and we may get more information about the current Court’s general attitudes here in the coming days as important cases are handed down at the end of the current Term.)
More important, the President’s undisputed power to remove all U.S. attorneys—whether they have been confirmed by the Senate or are in their posts on in interim basis, and whether they were appointed by the attorney general or by federal judges (under § 546)—gives the President tremendous power to force judges to appoint whomever he wants, simply by virtue of the threat he can make to fire anyone the court appoints who is not on his list (which could be as short as a list of one). And if a court balks and the President ends up having to fire any court-appointed U.S. attorney he does not like, there is a vacancy that the attorney general can fill anew (presumably at the President’s direction), including with someone the AG had already appointed to that position for an earlier stint of 120 or fewer days. The fact that the judges of the Southern District re-appointed Mr. Berman, coupled with the fact that § 546 identifies prior repudiation for the position by the U.S. Senate as the only basis of ineligibility for interim appointment, makes clear that, effectively, the President can have someone in place for much longer than 120 days if he chooses. Presidential termination and new (or re-) appointment, and credibly threatening to go that route, is always an option.
Even more important, if the President and his attorney general were on the ball, they wouldn’t ever even need to get to the point of firing people or threatening to do so. At the time an AG makes an interim appointment under § 546, he can (and in a smoothly functioning DOJ should) require the appointee to give him a letter of resignation that takes effect on Day 119. If the AG (backed by the President) wants to make a change earlier, that option is easily enough invoked (although perhaps at some political cost). But if no termination is made prior to Day 119, the appointment automatically lapses, creating a vacancy that the AG can then fill, with the same person if the administration wants to, or with someone else if things have changed.
This is how some businesses operate, say, after a merger—they ask for everyone above a certain level of managerial responsibility to submit a letter of resignation, and then (re)hire those people whom they want to bring back. Whether or not such a practice is always enforceable in the private sector, surely the attorney general can insist on such a letter as a condition of initial appointment as interim U.S. attorney. And no one should be reluctant to take the initial interim appointment by the AG simply because of the possibility of non-renewal; the appointment is terminable at the President’s will anyway, and of course was never necessarily intended to be long term.
This approach by the President and attorney general would be fully consistent with the text of sections 546 and 541, and would also ascribe some significance to Congress’s decision to build in a 120-day time limit; by requiring the President and attorney general to actively revisit things every three months, Congress is reminding the President of the unfilled vacancy and the potential benefit of picking someone whom the Senate is willing to confirm.
Had the President and attorney general pursued this latter course of action in particular—that is, appointed Berman in the first place to a (renewable) term from which he would resign after 119 days—they could have avoided the debacle of Berman repudiating Mr. Barr’s initial statement announcing Berman’s resignation and contesting Barr’s power to remove. If Berman’s periodic resignation had simply taken effect, the administration could have avoided much of the bruhaha over the legal permissibility of its actions, and made it much more likely they could have put Mr. Carpenito in place as Mr. Barr seemingly wanted to do. Indeed, the administration could have avoided much of the blowback over the substantive reasons for removing Berman at all; deciding not to reappoint after someone has resigned is different, legally and optically, than terminating someone midstream. As it stands now, apparently the controversy over the whole matter has made it difficult, politically though not legally speaking, to put Mr. Carpenito in place.
That may or may not be a good thing for the country; I don’t have any deep knowledge of the players in this drama or what the administration’s motivations here are. My suggestion is a more general one about operations in the executive branch. In constitutional (and statutory) law, often the question isn’t whether the executive branch has the power to do something, but whether those at the helm of the executive branch have the skill to exert power in ways that insulate the exercise from meaningful challenge.