Original story below.
A U.S. attorney being replaced by the Trump administration is refusing to step down, in possible defiance of the law.
“I learned in a press release from the attorney general tonight that I was ‘stepping down’ as United States attorney. I have not resigned, and have no intention of resigning, my position,” U.S. Attorney Geoffrey Berman said in a statement late Friday.
“I will step down when a presidentially appointed nominee is confirmed by the Senate,” he added.
President Donald Trump is planning to nominate Jay Clayton, who currently chairs the Securities and Exchange Commission, to serve as Berman’s replacement, Attorney General William Barr said hours earlier in a press release.
Trump also appointed Craig Carpenito, currently the U.S. Attorney for the District of New Jersey, to serve temporarily in the position Berman held while the Senate considers Clayton’s nomination.
The appointment will be effective July 3, Barr said. He also said that Berman was “stepping down.”
According to U.S. law, each U.S. attorney is subject to removal by the president.
Trump, but not Barr, can remove Berman, Marty Lederman, a Georgetown University law professor, said in a social media statement.
Berman was appointed by judges in the Southern District of New York in April 2018 to remain as U.S. attorney. Then-Attorney General Jeff Sessions earlier that year nominated Berman as interim U.S. attorney for the district.
Some legal experts alleged that, because of the way Berman was placed in his position, he might be able to continue serving in the post.
Referencing a separate portion of U.S. code, University of Texas at Austin law professor Stephen Vladeck said on social media, “There’s a pretty good argument that” Berman “gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor).”
Many experts pointed to a 1979 memo (pdf) from the Office of Legal Counsel, which produces opinions about what the White House can legally do. The memo says the president can remove U.S. attorneys, regardless of how the attorneys gain their positions.
Queries sent to the Department of Justice, the White House, and Berman’s office weren’t immediately returned.
During his time in office, Berman led the prosecution against sex offender Jeffrey Epstein, before Epstein committed suicide in jail. He has not brought charges against any of Epstein’s associates despite widespread calls to do so.
Berman has also probed several people who were once close to Trump, including Michael Cohen, Trump’s former lawyer, and Rudy Giuliani, the president’s current lawyer.
House Judiciary Chairman Jerry Nadler (D-N.Y.) in a statement accused Barr of wrongdoing on Trump’s behalf.
Berman, he said, is welcome to testify at a committee hearing on the topic on Wednesday.