Almost Runaway Prosecutor Bows To Rule of Law
https://www.nysun.com/editorials/an-almost-runaway-prosecutor-decides-to-follow/91169/
“What Would Happen If Trump Refused to Leave Office?” That question is bruited in a headline the Atlantic issued a few months back. It’s been echoing around the Democratic press for months. The answer is that it would be an unsustainable constitutional affront. And what would happen were a United States federal prosecutor to refuse to leave office? We came awfully close to finding out this weekend.
The would-be runaway prosecutor was the United States attorney in Manhattan, Geoffrey Berman. He was appointed in 2018 by the judges of the United States District Court for the Southern District of New York. They acted under Section 546 of Title 28 of the United States Code. In certain circumstances, it allows a federal district court to appoint a U.S. attorney to serve “until the vacancy is filled.”
Mr. Berman seemed to think that language meant he could stay in his post until the Senate confirmed a replacement, which could have run past the election. Mr. Berman also seemed to think the president’s constitutional power of removal applies only to prosecutors whom the president has appointed and the Senate confirmed. Mr. Berman reckoned prosecutors appointed by court may be removed only by the court.
He faced a problem, though. It turns out that when President Carter was in office, his Justice Department took a look at that precise question. It issued an opinion memorandum by Assistant Attorney General John Harmon. Its subject was “Removal of Court-Appointed U.S. Attorney.” It found that a court-appointed federal attorney could be removed only by the court — unless Congress enacted a law saying otherwise.
And guess what? Congress did enact precisely such a law, Title 28’s Section 541. That section says: “Each United States attorney is subject to removal by the President.” It establishes no exceptions. The Carter-era memo endorsed the point, citing a federal court ruling in New York holding that the law “clearly authorizes the executive to remove any United States Attorney, regardless of the nature of his appointment.”
That means that in refusing to vacate his office, Mr. Berman would have been flouting a policy that has controlled his own department at least since he was six years old. The removal power over each U.S. attorney, is, the Harmon memo argues, arguably more important to the president than the appointment power. That’s because “it is the power to remove, and not the power of appointment, that gives rise to the power to control.”
Which, of course, is so important to any president, given that the President is uniquely assigned the duty to take care that the laws are faithfully executed. The Harmon memorandum, incidentally, notes that the President “need not actually sign removal papers.” The President, the memo says, “may leave to the Attorney General the implementation of an oral Presidential decision to remove” a United States Attorney, though the memo preferred it be done in writing when judges were involved.
Which brings us back to the question being asked by the Democrats about whether Mr. Trump might refuse to leave if he is defeated in November. It’s like the question of whether Mr. Trump would accept a victory by Hillary Clinton in November 2016. It turns out to have been the Democrats who refused to accept the election results. Mr. Berman, the Washington Post is reporting this evening, has now decided he will step down. If true, we’d like to think the prosecutor read the Harmon memo and decided to bow to the law.
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Correction: 2018 was the year in which the judges of the United States District Court in Manhattan appointed Mr. Berman as United States Attorney; the year was given incorrectly in an earlier edition. Mr. Berman had held the position on an interim appointment by Attorney General Sessions.
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