Late Friday night, when all perfectly legitimate government actions are announced, Attorney General Barr announced that U.S. Attorney for the Southern District of New York, Geoffrey Berman, was resigning as U.S. Attorney and that the U.S. Attorney for New Jersey would take over for SDNY. The problem, however, is that Geoffrey Berman did not resign; he issued a statement indicating that he has no intention of stepping down.
The entire debacle stinks of corruption. As U.S. Attorney for SDNY, Berman is in charge of and is overseeing multiple federal investigations into the Trump family businesses, the Trump campaign, and Trump. It was SDNY, after all, who indicted Rudy Giuliani’s associates for violations of federal law and named the president as “Individual 1” in the case against Michael Cohen. And at a minimum, Establishment Republican and Federalist Society Hero ™ William Barr has now lied about whether Berman is resigning, which means the administration is trying to push Berman out. The question is why.
This Friday night massacre (there have been others) also raises a host of interesting legal questions. Berman is the U.S. Attorney because he was appointed by a panel of judges; as such, it’s not clear that the Attorney General (rather than the President) can remove him. Nor is it clear whether, if the President removed Berman for corrupt causes, that courts would be able to do anything about it. And if Berman is removed, it is not clear how he could be replaced (and in particular it is not clear who could nominate someone to replace Berman on an acting basis). For now, I’m going to leave these questions to the experts – Anne Joseph O’Connell, Steve Vladeck, Marty Lederman.
What I’d like to focus on is how the entire fiasco might influence two of the Supreme Court’s pending cases, or at least how the developing Berman situation should influence the publics’ understanding the stakes of Seila Law v. CFPB and Trump v. Vance and Trump v. Mazars. The cases are all about presidential power: Seila is about the President’s authority to remove the CFPB director; Vance and Mazars are about presidential immunity from subpoenas.
Seila Law: Presidental Removal Power
First, Seila Law. The question in Seila Law is whether the statutory restriction on the President’s power to remove the CFPB director is unconstitutional. Under that statute, the President can only remove the CFPB director “for cause,” not for, say, disagreements over policy. While the Supreme Court has upheld restrictions on Presidents’ authority to remove the heads of “multi-member” agencies (agencies led by several individuals, rather than one), the Trump administration is arguing that Congress cannot restrict Presidents’ authority to remove the heads of single director agencies such as the CFPB. (Alternatively, the administration is asking the Court to overturn the case that allows Congress to place removal restrictions on multi-member agencies.)
I’ve written previously about why the distinction between multi-member and single-director agencies should not matter for purposes of Article II. (Indeed, you might think the distinction should cut in the opposite direction, as Justice Kagan suggested at argument: It would be easier for Presidents to influence single-director rather than multi-member agencies.)
For now, however, I want to zero in on how the Berman debacle once again highlights the stakes of this case. The administration is insisting that the Supreme Court give Presidents more power to fire heads of agencies. But we have seen, time and again, how this President in particular exercises his power to fire people for corrupt or untoward ends. He fired Jim Comey for not tanking the investigation into Mike Flynn. The administration regularly fires inspectors general for raising concerns about the administration’s compliance with the law. And so on.
When the President was still doing his bizarre and misleading daily press briefings about the coronavirus, I wrote at Slate about how the President’s desire to use his power over personnel to suppress facts and expertise raised red flags about the administration’s arguments in Seila. Specifically, the President’s behavior exemplified why Congress needs to be able to insulate certain federal officials from presidential removal—in order to prevent arbitrary exercises of power for corrupt ends.
U.S. Attorneys may not be among the officers who Congress could or should insulate from presidential removal. But the Berman debacle highlights why Congress should be able to insulate other officers from presidential removal – because of the very real risk, which we are seeing materialize every day, that some presidents will exercise their removal power for corrupt and political ends.
One additional note re: Seila. The administration’s arguments in the case, together with their apparently ongoing effort to remove the U.S. Attorney for SDNY provide another occasion to roll your eyes at a characterization from Justice Kavanaugh’s dissent in the DACA case. (Justice Kavanaugh would have allowed the administration to rescind DACA – u up Susan Collins?) As my Strict Scrutiny co-host Melissa Murray noted on our short recap episode about the DACA opinion, Justice Kavanaugh characterized the Trump administration’s position as a “different and narrower understanding of the Executive’s prosecutorial discretion under Article II” than the more expansive understanding held by the Obama administration. A “narrower understanding of the Executive’s prosecutorial discretion under Article II” from the administration that thinks Congress can’t insulate agency heads from presidential removal because presidents need to be able to direct agencies to exercise their discretion in ways that conform to the President’s wishes? Lol, okay guy.
Subpoenas: Presidential Immunity From Investigation
The administration’s efforts to push out the U.S. Attorney who is overseeing the federal investigations into the Trump campaign and Trump’s family businesses are arguably even more significant for the presidential immunity cases – Trump v. Vance, which involves a grand jury subpoena from New York, and Trump v. Mazars (and consolidated cases), which involve several congressional subpoenas. Here, I’m going to focus on Trump v. Mazars, both because I think that oral argument suggested Mazars will be closer than Trump v. Vance and because the Berman fiasco has more relevance to that case.
Understanding its relevance requires some background. Mazars involves several different congressional subpoenas—from the Financial Services Committee, the Intelligence Committee, and the Oversight Committee. All of the committees subpoenaed third party accounting firms or banks seeking the President (or some of his family members’) financial records. Financial services did so as part of its effort to learn more about possible money laundering, corruption, and financial market risk (and possibly to pass legislation related to these topics); Intelligence to investigate efforts by Russia and other foreign actors to influence U.S. elections and political processes; and Oversight to investigate (and potentially reform) ethics and conflicts of interest requirements, among other things.
Under current doctrine, congressional subpoenas must have a legitimate legislative purpose. Historically, that has been a remarkably easy standard for Congress to satisfy. This case could change that. The President’s personal lawyers are making the bizarre and outlandish argument that Congress cannot issue these subpoenas because Congress can never impose requirements on the office of the Presidency, and therefore it lacks a legitimate legislative purpose in the subpoenas because Congress could not pass any valid law related to these subjects. Alternatively, the President’s personal lawyers, together with the DOJ, have argued that the real purpose of these subpoenas is not to pass any laws, but instead to harass the President and reveal unlawful conduct. And DOJ is specifically arguing for a heightened standard to apply to any subpoena that could possibly implicate any of the President’s personal records (even records that are not in his possession)—they would require Congress to make a more specific showing that it needs the particular information specified in the subpoena (and perhaps some other showings too).
But the Berman debacle has underscored the pressing need for Congress to understand the President’s financial entanglements and business dealings and to understand them now. Why is the President so determined to fire the U.S. Attorney who is investigating his financial holdings and businesses? Why is the President so determined to fire the U.S. Attorney investigating his campaign associates for violations of campaign finance laws?
These are questions that need answers. And congressional investigation and oversight is how our political system is supposed to get those answers (which Congress can’t possibly know before receiving and collecting information). The need to understand the President’s legal exposure, and possible susceptibility to blackmail and influence by a foreign power, is part of what motivated the Intelligence Committee’s subpoena in particular. It was – and still is – a matter of national security that Congress be able to determine whether the President is in debt to foreign powers and/or foreign businesses that are closely linked to foreign powers. That is precisely what Congress was trying to do with some of these subpoenas. And that is what the President, DOJ, and the President’s personal lawyers are trying to prevent Congress from doing.
Will the Supreme Court care? Or could the Court be influenced by the fact that the President once again appears to be doing everything he can to obstruct any effort to look into his financial entanglements?
It is hard to say. There is some possibility that intervening developments like these influence cases. Joan Biskupic reported that last term, Chief Justice Roberts changed his vote in the census case. In that case, the census department (via civil rights warrior Wilbur Ross) said that it wanted to add a question about citizenship to the census in order to enforce the voting rights act. But weeks after the Court heard argument in the census case, a bunch of documents became public that revealed how a citizenship question was proposed in order to facilitate drawing districts in ways that would disadvantage Latinx and Democratic voters. And the Court ultimately ended up invalidating the citizenship question on the ground that the administration had lied about its reason for adding the question.
This term, the Chief Justice appeared to have another change in perspective about a case from oral argument to final decision—this time in the DACA case. The Chief ended up voting to invalidate the administration’s rescission of DACA. At oral argument, however, he pressed the lawyers defending DACA on whether the administration would actually deport any DACA recipients. At argument, he expressed skepticism and disbelief that the administration would deport DACA recipients; he didn’t seem to think that was a possibility. But after the argument, the administration made clear that they would deport DACA recipients. As my co-counsel in the DACA case, Luis Cortes-Romero, noted on our DACA recap episode, the administration even began to announce policies to streamline the removal process. And the Chief Justice ended up writing an opinion that highlighted the importance of DACA’s protections against removal, in addition to its other benefits.
It’s impossible to know at this point whether any of these intervening developments ended up influencing the Justices’ assessment of these cases. But the Berman debacle pointedly underscores the pressing national need to understand the Presidents’ financial entanglements, which is at the heart of the congressional subpoena cases. Congress issued subpoenas to try and understand whether the Presidents’ financial holdings render him vulnerable to foreign influence or blackmail. Time will tell whether the Court will emulate Bill Barr’s interference for the President with U.S. Attorney Berman—and run interference for the President against Congress.