Berman is an acting U.S. attorney appointed by the court and therefore can only be fired by the president until his successor is confirmed. His courageous refusal to depart Friday may buy him time, or at least thereby make Trump directly responsible for what appears to be yet another attempt at obstruction of justice. Constitutional scholar Laurence Tribe tells me, “Under 28 U.S.C. § 546(d), Berman continues to serve as the court-appointed U.S. Attorney for SDNY until the temporary vacancy he was appointed to fill is filled through Senate confirmation of a permanent successor. Even if the president could remove Berman personally, Barr can’t.”
The latest turn of events is more embarrassment for self-deluded Republicans like Sen. Susan Collins (R-Maine) who voted to acquit Trump during his impeachment trial and who thought Trump had learned his lesson. This is one of many efforts to fire investigators, including five inspectors general, at least three of whom were looking into Trump administration wrongdoing. (Let’s not forget Barr’s attempt to un-prosecute Michael Flynn after the latter pleaded guilty to lying to the FBI.)
In this dizzying display of contempt for the Constitution and obstruction of legitimate investigations into the Trump administration, we see a level of lawlessness that puts Richard M. Nixon to shame. We should consider several aspects of the burgeoning constitutional crisis. First, how bad must the investigations be for Trump and company that Barr was willing to take the fight public, where his blatant lying (this time falsely asserting Berman had resigned) would be exposed? Second, Barr’s attempts in trying to belatedly clear Flynn and now to cut off investigation(s) are arguably efforts at obstruction of justice, which the next administration must investigate and, if warranted, prosecute. Third, any Justice Department official aiding Barr, arguing in court on his behalf or signing briefs in support of firing Berman, should think long and hard about his or her own professional responsibilities and the risk of being engaged in a possible conspiracy to obstruct justice. Every lawyer at DOJ, including every district U.S. attorney, has an obligation to refuse to carry out illegal orders.
As former DOJ spokesman Matthew Miller told me, “For three and a half years we have watched as Trump has tried to run roughshod over the Justice Department. It has gotten worse and worse since Barr became attorney general, but in the last few months we have seen an increasing number of people willing to stand up for what is right.” He added, “Like the actions by prosecutors in the D.C. U.S. attorney’s office, this took a lot of courage from Berman, and I hope it inspires others to do the same.”
Senate Minority Leader Sen. Charles E. Schumer (D-N.Y.) put out a statement Saturday morning that read, in part, “I am calling for the Department of Justice Inspector General and the Office of Professional Responsibility to immediately launch an investigation into the reasons behind the decision by the president and the attorney general to attempt to dismiss Mr. Berman.” The House will no doubt undertake the same; the administration will certainly stonewall.
Almost lost in these gobsmacking events: We should not forget that newly revealed portions of the Mueller report suggest the special prosecutor’s team considered Trump may have lied about lack of foreknowledge of the WikiLeaks release of Hillary Clinton emails. It is yet one more example of potential crimes for which Trump may be prosecuted once he leaves office. And the potential prosecutions for him and others sure are piling up.
It is time for decent and honorable public servants at DOJ to quit and lay out the facts for the American people. Most importantly, nothing could better highlight the need to remove Trump at the polls in November and bring his lawlessness to an end.