Trump's Hamfisted Firing of SDNY US Att'y Berman Mirrors His Attempted DACA Rescission

By Michael C. Dorf

Another weekend, another Saturday night massacre. Or so it seemed before Geoffrey Berman spared us a reprise of the Western schism in the late-14th-century papacy. Had Berman persisted, it would have been an interesting question whether the SDNY was Avignon and Washington was Rome or vice-versa. Or, if you prefer your historical analogies to be more local and (relatively) contemporary, think of the aftermath of the Dorr Rebellion that led to SCOTUS punting in Luther v. Borden in 1849. 

In any event, Audrey Strauss is now the Acting US Attorney in the SDNY. AG William Barr has stated that he expects her to continue in that capacity until the Senate confirms a presidential nominee, but I'm not reassured. By all accounts, Strauss is a highly regarded professional with integrity, which all but assures that she will incur the wrath of Donald, perhaps leading him to fire her too. 

But wait. Is "too" really the right word there? Barr and Trump attempted to fire Berman, but he left office by resignation. Or did he? That question--purely academic for now--involves some tricky statutory interpretation in the shadow of the Constitution.

Part (a) of the basic statute (Section 541) governing the appointment of US Attorneys tracks the Constitution's procedure for principal officers: presidential nomination and Senate confirmation. Part (b) sets a term of four years. That might be thought to imply that a president can't remove a US Attorney, except that part (c) says expressly that the president can remove one.

What if there's a vacancy and no Senate-confirmed successor? Another statute (Section 546) says that then the AG gets to appoint a US Attorney, who serves for the shorter of 120 days or the Senate confirmation of a successor.  But if 120 days elapse and there's still no Senate-confirmed appointee, then the district court appoints the US Attorney for the district. That person then serves "until the vacancy is filled" (presumably by a Senate-confirmed US Attorney). In the 24 hours or so when it looked like another constitutional crisis was looming, there was some speculation about whether giving courts appointment power in this way violates separation of powers.

It pretty clearly does not. For one thing, the SCOTUS approved inter-branch appointments in 1988 in Morrison v. Olson. And there's a long tradition of courts appointing prosecutors to prosecute criminal contempts, approved (though not necessary to the holding in) Young v. United States in 1987. One can  imagine an improper judicial appointment of a prosecutor (as on the facts of Young itself), but Berman's certainly wasn't one. The judges appointed him based on the recommendation of then-AG Jeff Sessions.

What about firing? It's possible to read the vacancy-filler statute (546) as insulating from firing a US Attorney who was chosen by a court, absent Senate confirmation of a successor. Indeed, read in isolation, the statute would do exactly that. But such a reading--completely insulating a US Attorney from the possibility of dismissal by political actors in the executive branch--would be constitutionally dubious, and thus constitutional avoidance counsels against reading 546 as providing such insulation. Indeed, one need not resort to constitutional avoidance, because 546 should should be read together with 541 to provide the following rule: A court-appointed US Attorney serves until the Senate confirmation of his successor, unless the president fires him.

By the plain text of 541, only the president can fire a US Attorney. That's why Barr's letter notifying Berman that he was fired said that Trump, not Barr, had done the firing: "I have asked the President to remove you as of today, and he has done so." But had he?

Asked "why did you fire Geoffrey Berman, Mr. President," Trump replied: "Well, that’s all up to the Attorney General. 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."

Suppose that Berman had not stepped down later that day. Would he still be the SDNY US Attorney? In the absence of the president's statement, I think the answer would pretty clearly be no. Section 541 says that US Attorneys are subject to removal by the president but does not specify how the president must communicate the removal. In a parallel, somewhat normal, universe, it would go without saying that if the AG sends a US Attorney a letter saying the president has fired the US Attorney, there would be no reason to doubt the AG. However, where, as here, the president expressly denies any role in the firing and affirms that the decision was entirely up to the AG, it seems like the better conclusion is that the AG, not the president, fired the US Attorney. And because Section 541 says the president (and by implication only the president) can fire a US Attorney, that means that Barr's letter to Berman was ineffective. Barr and Trump didn't fire Berman; he quit.

To be clear, I'm confident that if Berman had held on for a few more hours, and if his reasoning followed the logic of the preceding paragraph, one of Trump's handlers would have gotten him to sign a piece of paper saying that he, Trump in all his presidential-ness, was the firer. No doubt Berman worked that out as well, which is why he resigned. But before leaving this particular Saturday night massacre in anticipation of the next catastrophe, I want to note something about Trump's m.o.

Various observers have pointed out that for a guy whose catchphrase is "you're fired," Trump doesn't like to tell anyone they're fired face to face. I assume that's not because when he faces people he feels empathy for them. Rather, I assume that's because Trump, like most bullies, is also a coward.

The particular form of Trump's cowardice here seems politically calculated. He wants Berman gone so that Berman will stop investigating Rudy Giuliani or for some other nefarious reason. He doesn't want to take any heat for firing Berman, even though it's likely his idea. As Preet Bharara wrote in the NY Times yesterday, Trump is very much aware of the SDNY, which he regards (according to the new John Bolton book) as run by "not his people." So Trump fires Berman while claiming not to fire Berman and in the process risks making the firing ineffective.

That's the same pattern we observe with DACA. As Chief Justice Roberts explained last week, Trump's administration could have rescinded DACA long ago, if only his Dep't of Homeland Security had initiated a new agency proceeding identifying policy grounds for doing so, rather than defending the original rescission--which claimed DACA was unlawful--using inadmissible (because novel) arguments. But rescinding DACA on policy grounds would have left the administration vulnerable to the charge that it was actively trying to screw the Dreamers. It was politically better for Trump to be able to tell "the base" that it was getting tough on immigration by rescinding DACA while retaining the ability to tell low-information swing voters that he loves the Dreamers, the problem is DACA is illegal, it's Obama's fault, and look, the courts agreed.

Because a simple signature was all that would have been needed to "correctly" fire Berman, Trump's effort to distance himself from the act didn't cost him anything, although it's unclear that he gained anything from the whole affair, so long as he and Barr permit Strauss to pursue the same cases Berman was pursuing. Meanwhile, however the latest Saturday night massacre plays out, the Trump team's attempt to have it both ways on DACA may have saved DACA. There is reason to hope that by the time Homeland Security completes a new agency proceeding rescinding DACA on policy grounds alone, the Trump administration will be out the door.

Finally, I recognize that in attributing any method at all to Trump, I could be thought to be endorsing the notion that he is some sort of political genius playing multidimensional chess, when "more often than not he's just eating the pieces."  To be clear, I don't think that Trump's efforts to take actions while simultaneously denying that he's doing so usually serve his policy or political interests. His conduct might not even be politically calculated. Whatever the ultimate reason, Trump has a habit of acting like a Bond villain who doesn't simply take the direct action he clearly favors but instead sets in motion some elaborate grisly machinery to do the job, thus allowing our heroes some time to escape. He thus inspires a tiny bit of hope in those of us who still cling to the rapidly vanishing norms of democracy and decency--hope that Trump's elaborate machinations will more than occasionally backfire, so that his cowardice and incompetence will temper his malevolence.

Postscript: Speaking of DACA, my latest Verdict column discusses conservatives' disappointment with the DACA ruling and even more so, their disappointment with the Title VII ruling.