Until Saturday, Geoffrey Berman was the U.S. attorney for the Southern District of New York (SDNY) — the chief federal prosecutor for Manhattan and some other New York counties — pursuing cases against President Trump’s organizations and his associates. Late Friday, Attorney General William P. Barr issued a news release announcing that Berman would be “stepping down.” Berman publicly refused to go, arguing that the unusual circumstances of his appointment meant Barr couldn’t oust him. For the next day, the two skirmished until Berman finally agreed to leave.
Here’s what you need to know about this Friday night massacre — and why it matters.
What exactly happened over the weekend?
In Barr’s release about Berman’s “resignation,” he wrote that Trump had appointed Craig Carpenito, the U.S. attorney for the District of New Jersey, to the SDNY post in an acting capacity, while the Senate considered Trump’s intended nominee, Jay Clayton, the chairman of the Securities and Exchange Commission and a longtime corporate lawyer.
But on the Justice Department’s website, Berman published a statement saying that he was not resigning. On Saturday, Barr wrote back that he had asked the president to remove Berman, “and he has done so.” Trump backed away from the mess, telling the news media, “I’m not involved.” By Saturday night, after Barr had agreed that Berman’s deputy Audrey Strauss would lead the SDNY office, Berman left the job.
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How did Berman get the job?
Trump in 2017 fired Preet Bharara, who was then the U.S. attorney for the Southern District of New York. Then-Attorney General Jeff Sessions named Berman the interim U.S. attorney under a special statute that empowers the attorney general to name an interim for 120 days, so long as the Senate has not previously rejected that person for the same job.
That special statute was last modified in 2007, after President George W. Bush’s Justice Department fired eight midterm U.S. attorneys, and stipulates that if the Senate has not confirmed a successor within that 120 days, the judges of the district court can appoint one until the vacancy is filled, a power upheld by the courts. After Trump failed to nominate anyone to succeed Bharara within that 120 days, the U.S. District Court for the Southern District of New York appointed Berman.
More than three years later, as with many top federal agency jobs, Trump still has not formally nominated anyone for this position, including Clayton, as of this writing.
Who can fire a court-appointed U.S. attorney?
Berman’s initial refusal to step down raised an unsettled constitutional dispute: Could he be fired after being picked by the district court, and, if so, by whom?
In 1979, the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive branch agencies, issued an opinion that the president, but not the attorney general, could remove a court-appointed U.S. attorney.
The Office of Legal Counsel, however, is not a federal court. So had Berman been fired, he could have sued — although he probably would have lost.
How did Strauss get the job over Barr’s choice?
Strauss, the deputy U.S. attorney for the Southern District of New York, is now also the acting U.S. attorney — not the interim (chosen by the attorney general) or the U.S. attorney (chosen by the court). How can she use the acting title? The answer is complicated and open to dispute.
Under the Federal Vacancies Reform Act of 1998, certain individuals can serve in many vacant Senate-confirmed positions for a limited time. The act does not apply when Congress has passed a specific and exclusive agency provision, as it has for top Department of Homeland Security spots.
Does the Vacancies Act apply to U.S. attorneys, even though Congress has specified alternative succession plans? Yes, the Office of Legal Counsel held in a 2003 opinion — because Congress has not explicitly ruled it out. In fact, in 2007 Congress amended the U.S. attorney succession provisions and considered — but did not adopt — express language to rule out use of the Vacancies Act. This issue hasn’t been litigated, but the federal government has won similar statutory challenges in the lower courts — for instance, when Trump used the act to appoint Mick Mulvaney to lead the Consumer Financial Protection Bureau and Matthew G. Whitaker to head the Justice Department temporarily, despite statutes specifying other succession plans. To circumvent that, Rep. Katie Porter (D-Calif.) introduced a bill to rule out using the Vacancies Act this way.
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If we assume that the Vacancies Act applies and that its time limits start from Berman’s departure, the first assistant — Strauss — is the default acting official. The president can leave Strauss in place or he (and no one else) can select someone from the other possible pools. Those include another Senate-confirmed official in the Justice Department or in a different agency, or a sufficiently senior Justice Department official who has served at least 90 days in the year before the vacancy. That’s why Barr could initially say that Trump had picked Carpenito as the acting head.
If challenged in court, Strauss’s actions under the “acting” title could be struck down if a court concludes that the Vacancies Act does not apply. The Justice Department could avoid that risk by simply having Strauss not use the acting moniker. She could do the same job indefinitely through delegation, where all the duties of the U.S. attorney fall to her under Justice Department regulations in her deputy hat.
Many observers think that Senate-confirmed appointees run federal agencies, but acting officials increasingly do, particularly under this administration but also in previous ones. Many acting officials serve under the Vacancies Act. When the act’s time limits run out, those same officials often simply lose the title and instead “perfor[m] the duties” of the vacant positions. Acting officials are a workaround to the traditional appointments process — but delegated authority is a workaround when there are no acting leaders.
But neither workaround for a specific vacancy — acting official or delegated authority — bears the approval of the Senate. These temporary positions, while often necessary stopgaps, weaken the chains of political accountability.
Editor’s note: An earlier version of this article incorrectly stated that Strauss’s appointment as acting U.S. attorney was the first time the Vacancies Act has been used for U.S. attorneys since 2007. We have corrected the error.
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Anne Joseph O’Connell is the Adelbert H. Sweet Professor of Law at Stanford University, a contributor to the Center on Regulation and Markets at the Brookings Institution, an appointed public member of the Administrative Conference of the United States, and a volunteer for the Biden presidential campaign. This post represents only her views.