Barr’s bid to dump Manhattan U.S. lawyer will get difficult

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Barr's bid to dump Manhattan U.S. attorney gets complicated

The late Friday announcement from Atty. General William Barr seemed clear. The U.S. attorney in Manhattan, Geoffrey Berman, would resign. The prosecutor has long been under the government's eye, leading investigations into President Trump's inner circle and leading the successful persecution of Trump's personal lawyer Michael Cohen.

But shortly after the announcement of the resignation, Berman made his own statement. "I have not resigned and have no intention of resigning my position," said Berman.

Barr announced today that Trump had fired Berman at the request of Attorney General and that Berman's chief deputy, Audrey Strauss, will be the provisional head of the Southern District of New York until a permanent successor is in place. Berman then agreed to step aside and quoted Barr's "decision to respect the normal functioning of the law" by replacing him with Strauss, a respected prosecutor.

Berman's agreement to leave without a fight seems to be the end of the short struggle between a powerful prosecutor and his even more powerful boss, but it isn't. Berman's departure does not fully accomplish what Barr and Trump wanted: to take control of the ongoing investigation by the U.S. attorney in Manhattan. To do this fully, they need a supple US lawyer in Berman's place. Strauss is unlikely to play this role.

The goal of staying in the Manhattan office could not be achieved simply by ousting Berman as he was appointed in a unique way. After his appointment, he was not confirmed by the Senate, but appointed by the judges of the district in which he served. This put him in a slightly different legal position, and he might have been able to successfully argue in court that the U.S. code allowed him to stay until a successor to the job was confirmed.

Since Strauss was not appointed in the same way, she is covered by another section of code. This will strengthen Barr's legal position should he decide to oust Strauss and use the person he has announced for the job to be Jay Clayton, who serves as chair of the Securities and Exchange Commission.

But whatever Barr may have for enhanced legal authority with Berman, his practical options may have been limited. That's because any move to oust Strauss now is seen as an obvious effort to end Trump's investigation.

Barr and Trump have been more than willing to ignore the disapproval of their actions, but the president faces a potentially tough re-election campaign and risks being politically injured.

In practice, the administration could face serious headwinds when trying to confirm a successor for Berman. Senator Lindsey Graham (RS.C.), chair of the Senate Judiciary Committee, said he would follow the normal procedure for such attestations that senators from the state in which an appointment is made would be able to nominate a U.S. attorney in a bottle to fill . It is certain that New York Sens. Charles E. Schumer and Kirsten Gillibrand, both Democrats, will not allow a nomination.

Barr and Trump have a choice between two unattractive options. You can leave Strauss in office and have ongoing investigations carried out unhindered, or you can suppress them and trigger a certain firestorm.

If they followed the latter course, Strauss would have the strategic opportunity to oppose them through legal action, a path that Berman would probably have taken had Strauss not been appointed. A court would no doubt understand the broader aspects of such a dispute.

The most important factor that Strauss would have on her side if she took this path would be time. It would be a great reversal of the dynamic that Trump has so often exploited by going to court with lousy arguments that still give him the time he needs on the political front.

As long as Strauss remains in command, the investigation should continue vigorously. And every day the office continues to dig, the president will tie himself in angry knots.

@harrylitman

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