Can the President Fire a Court-Appointed US Attorney?

Geoffrey Berman was appointed interim US Attorney for the Southern District of New York (Manhattan) by then-Attorney General Jeff Sessions.  After his 120-day interim appointment had run its course, he was re-appointed by the US District Court.  Over the last couple of days, we have seen quite a drama as Attorney General Barr announced Berman’s “resignation;” Berman said he had never resigned and was staying put until a successor was confirmed; Barr then fired him, saying it was at the direction of the President; and (yesterday) Berman said he was resigning forthwith.

The House Judiciary Committee has scheduled a hearing to look into this.  No doubt it will be chock full of politics and accusations that the President and/or Barr were trying to derail potentially damaging investigations in the run-up to the election.  In this post, however, I’m going to put the politics to one side and address the quite interesting question whether, under the governing statutes and the Constitution’s separation of powers principle, the President can fire a court-appointed US Attorney.

The statutory authority for interim US Attorneys is weird.  Under 28 USC 546, the Attorney General may appoint a US Attorney to fill a vacancy for the shorter of (1) until a successor is confirmed, or (2) 120 days.  After that, the district court may appoint a US Attorney to serve “until the vacancy is filled.” Presumably Attorney General Sessions appointed Berman under the first authority, and the district court reappointed him under the second.

There has long been uncertainty about the constitutionality of having a district court appoint interim US Attorneys because they are executive branch officials. Morrison v. Olson approved the judicial appointment by a special court of a special prosecutor, but obviously that is an unusual circumstance (and of course that authority has long since lapsed).  28 USC 546 has been around for quite a while, though, and what tends to happen in practice is that the court extends the term of the person the Attorney General appointed, as happened here, thus tending at least as a practical matter to mitigate this constitutional difficulty.

Assuming Berman’s court appointment were valid, the real puzzle is whether the language “to serve until the vacancy is filled” precludes the President from removing him.  And if the President can remove the court-appointed US Attorney, how does the new vacancy get filled on an interim basis — with a new Attorney General appointment? I think the right answer to the first question is that the language does not preclude the President from removing an interim court-appointed US Attorney, and the right answer to the second is that if the President does so, the Attorney General may fill the new vacancy.  Here’s why.

28 USC 541 provides that regular U.S. Attorneys are appointed by the President by and with the advice and consent of the Senate for four-year terms. But the statute establishing those terms also provides, “Each United States attorney is subject to removal by the President.” What is likely behind that authority is the principle that, as a constitutional matter, the President generally can remove any purely executive principal officer (Myers v. United States, the decision of 1789), and regular US Attorneys are understood to be purely executive principal officers.

The primary question, then, is whether the language about the President’s removal authority over Presidentially-appointed and Senate-confirmed US Attorneys, which is found in the same Code section as the authority creating those US Attorneys, also applies to interim US Attorneys, given that they are in a different statutory section.  I think courts would likely find the language does apply to them, in part because it can reasonably be read that way (“each Untied States attorney” seems to include interim US Attorneys), and in part because to conclude otherwise would raise further constitutional questions about Section 546, which is dicey enough as it stands.

There is an argument that, in theory, one could discern a removal limitation on an interim US Attorney that isn’t there on a regular US Attorney, because an interim US Attorney appointed by a court is not a principal officer because he is a short-timer, and limitations on removal of non-principal executive officers have been upheld, including under Morrison. In practice, though, if the President could not remove an interim US Attorney appointed by a court, potentially the interim US Attorney would be able to serve longer, and with less Presidential control, than a Senate-confirmed US Attorney appointed by the President for four years. And in fact Berman had already been serving quite a long time.  So this would put a lot of pressure on the Supreme Court’s removal jurisprudence. Also, if one were to read the “shall serve until the vacancy is filled” language literally, there would be no ability for the President to remove the interim US Attorney even for cause, meaning the interim US Attorney would be even less accountable than the independent counsel described in statute upheld in Morrison (and as the Court found in Humphrey’s Executor there was for FTC Commissioners, where the Court upheld a limitation on Presidential removal for “quasi-legislative” “quasi-judicial” officers like the Commissioners). To be sure, the courts could read “unless removed for cause” exception into the “shall serve” language, but then they would have to figure out if there were cause,  potentially embroiling them in executive branch prosecution decisions.  So the courts would likely read the language “to serve until the vacancy is filled” as not limiting the President’s authority (under 28 US 541 and the Constitution) to remove an interim US Attorney before that time, but instead as simply allowing the interim US Attorney to serve until the vacancy was filled unless removed earlier by the President.

If that is the case, a Presidential removal of an interim US Attorney would then, at least ordinarily, create a new vacancy that can be filled by the Attorney General under Section 546.  An exception might be if, for example, the President removed an interim US Attorney appointed by the Attorney General on the 119th day in order to allow the AG to make a new appointment, or if an interim resigned on the 119th day, which might feel like a subterfuge designed to circumvent the statutory provisions.

In any event, it’s probably all moot, although someone might still argue that the AG cannot make a second interim appointment and that that authority passed to the district court after Berman’s initial term ended.  Berman is not going to make that argument, though, since he has now resigned, so it would have to be a private person, perhaps someone prosecuted by the office, challenging the actions of the new interim US Attorney as ultra vires because she was invalidly appointed. That challenge probably won’t be brought, though, and its chances would be problematic if it is.

P.S.  For those who find this discussion unusually erudite to be coming from me  —  you’re right.  It’s lifted with very few revisions from my wife’s analysis in another discussion group.  My wife is a former clerk for Justice Scalia, a former Associate White House Counsel, and a former Associate Deputy Attorney General.  She now teaches with me as an Adjunct Professor at Georgetown Law.

P.P.S.  There are two other quite good discussions of this question, one in the New York Times, and one by Andy McCarthy in National Review.