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Who Can Fire a Court-Appointed U.S. Attorney? An Abrupt Legal Fight, Explained


That is how Mr. Berman became U.S. attorney. He was initially appointed by the attorney general at the time, Jeff Sessions, and federal judges in Manhattan reappointed him after the 120-day period expired. In his statement Friday night, Mr. Berman indicated that Mr. Barr could not fire him because he had been appointed by the court, and declared he intended to remain in office until the Senate confirms a successor.

However, another federal law says that U.S. attorneys may be removed by the president. On its face, it makes no exception for those appointed by courts. That raises the question of whether Congress has established that presidents may remove prosecutors appointed by courts.

In 1979, during the Carter administration, the Justice Department’s Office of Legal Counsel, which analyzes legal issues for the executive branch, looked at this question. It concluded that the president — but not the attorney general — could fire such an official.

In a memorandum opinion, John M. Harmon, the head of the office at the time, cited the law that says presidents may fire U.S. attorneys. The law’s broad wording makes sense, he wrote, only if it is applied not just to presidentially appointed U.S. attorneys “but also is to be read as extending to ‘each’ U.S. attorney, including the court-appointed ones whom the president could not remove without congressional leave.”

Mr. Barr, in his letter on Saturday, cited that law, saying “it is well-established that a court-appointed U.S. attorney is subject to removal by the president.”

Mr. Harmon also pointed to constitutional arguments to back his conclusion: U.S. attorneys exercise executive power, making the president responsible for the conduct of their offices, so the president “must have the power to remove one he believes is an unsuitable incumbent, regardless of who appointed him,” he wrote.

In addition, Mr. Harmon wrote in 1979, it might violate constitutional protections for due process of law if judges overseeing cases as neutral arbiters had the power to fire prosecutors if the judges did not like how they handled their responsibilities.



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