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Legal Ethics & Current Events Legal Ethics & Current Events: Barr, Berman & US v. Flynn July 2020 © 2020 Downey Law Group LLC. For educational purposes only. Today’s Special Panelists Peter A. Joy Henry Hitchcock Professor of Law Director, Criminal Justice Clinic WASHINGTON UNIVERSITY SCHOOL OF LAW Miriam Miquelon Weismann Academic Director, COB Healthcare MBA Program Clinical Professor, School of Accounting FLORIDA INTERNATIONAL UNIVERSITY COLLEGE OF BUSINESS (Former) United States Attorney, Southern District of Illinois William Barr and Geoffrey Berman 4 June 19, 2020 – c. 8:00 PM ET Attorney General William P. Barr on the Nomination of Jay Clayton to S…y for the Southern District of New York | OPA | Department of Justice 7/1/20, 4:54 PM An official website of the United States government Here’s how you know JUSTICE NEWS “I am pleased to announce that President Department of Justice Office of Public Affairs Trump intends to nominate Jay Clayton, FOR IMMEDIATE RELEASE Friday, June 19, 2020 currently the Chairman of [SEC], . as next Attorney General William P. Barr on the Nomination of Jay Clayton to Serve as U.S. Attorney for the Southern District of New York [US Attorney for SDNY]. Attorney General William P. Barr has released the following statement: “I am pleased to announce that President Trump intends to nominate Jay Clayton, currently the Chairman of the Securities and Exchange Commission, to serve as the next United States Attorney for the Southern District of New “[T]he President has appointed Craig York. For the past three years, Jay has been an extraordinarily successful SEC Chairman, overseeing efforts to modernize regulation of the capital markets, protect Main Street investors, enhance American competitiveness, and address challenges ranging from cybersecurity issues to the COVID-19 pandemic. His management experience Carpenito to serve as Acting US Attorney and expertise in financial regulation give him an ideal background to lead the United States Attorney’s Office for the Southern District of New York, and he will be a worthy successor to the many historic figures who have held that post. On behalf of the President, I thank Jay for accepting this nomination, and I look forward to working with him soon. On my recommendation, the President has appointed Craig Carpenito, currently the United States Attorney for the I thank Geoffrey Berman, who is stepping District of New Jersey, to serve as the Acting United States Attorney for the Southern District of New York, while the Senate is considering Jay Clayton’s nomination. This appointment will be effective July 3, and Craig will work closely with the outgoing United States Attorney to ensure a smooth transition. I thank Craig for his continued down after two-and-a-half years of services service and for taking on this important interim responsibility. Finally, I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States as [US Attorney] . Geoff has done an Attorney for the Southern District of New York. With tenacity and savvy, Geoff has done an excellent job leading one of our nation’s most significant U.S. Attorney’s Offices, achieving many successes on consequential civil and excellent job . .” criminal matters. I appreciate his service to the Department of Justice and our nation, and I wish him well in the future.” Topic(s): Office and Personnel Updates Component(s): Office of the Attorney General Press Release Number: 20-570 https://www.justice.gov/opa/pr/attorney-general-william-p-barr-nomination-jay-clayton-serve-us-attorney-southern-district Page 1 of 2 June 19, 2020 – 10:14 PM ET – Berman “I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. Statement Of U.S. Attorney Geoffrey S. Berman On Announcement By Attorney General Barr | USAO-SDNY | Department of Justice 7/1/20, 4:51 PM “I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the [USDC for the SDNY]. Search “I will step down when a presidential nominee is confirmed by the Senate.SEARCH HOME ABOUT PRIORITIES NEWS RESOURCES PROGRAMS “Until then, our investigations will moveEMPLOYMENT forwardCONTACT without delay or interruption.” U.S. Attorneys » Southern District of New York » News » Press Releases Department of Justice U.S. Attorney’s Office Southern District of New York FOR IMMEDIATE RELEASE Friday, June 19, 2020 Statement Of U.S. Attorney Geoffrey S. Berman On Announcement By Attorney General Barr “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, to which I was appointed by the Judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor – and intend to ensure that this Office’s important cases continue unimpeded.” Component(s): USAO - New York, Southern Contact: Jim Margolin, Nicholas Biase (212) 637-2600 Press Release Number: 20-128 Updated June 19, 2020 https://www.justice.gov/usao-sdny/pr/statement-us-attorney-geoffrey-s-berman-announcement-attorney-general-barr Page 1 of 2 “I was surprised and quite disappointed by the press statement you released last night. “As we discussed, I wanted the opportunity to choose . Jay Clayton[] to nominate as US Attorney and was hoping for your cooperation to facilitate a smooth transition” “. I had understood that we were in on- going discussing concerning the possibility of your remaining in the Department or Administration . “Unfortunately, with your statement of last night, you have chosen public spectacle over public service . “I have asked the President to remove you, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will becoming Acting US Attorney . 7 “To the extent that your statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court- appointed US Attorney is subject to removal by the President.” . “Your statement also wrongly implies that your continued tenure in office is necessary to ensure that cases now pending in the [SDNY] are handled appropriately. This is obviously false.” I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horwitz, the [DOJ] Inspector General, whom I am authorizing to review any such claim.” 8 ”Why did you fire Geoffrey Berman, Mr. President?” “That’s all up to the Attorney General. [AG] Barr is working on that. That is his department, not my department. But we have a very capable [AG] so that is really up to him. I am not involved.” 9 November 26, 1979 79-83 MEMORANDUM OPINION FOR THE ACTING DIRECTOR, EXECUTIVE OFFICE FOR U.S. ATTORNEYS U.S. Attorneys—Removal of Court-Appointed U.S. Attorney (28 U.S.C. §§ 541, 546) This responds to your request concerning whether the power to remove a U.S. Attorney appointed by a district court pursuant to 28 U.S.C. § 546 is vested in the President, the Attorney General, or the appointing court.1 To our knowledge, the question is one of first impression. Pursuant to 28 U.S.C. § 541(a), the President appoints U.S. Attorneys by and with the advice and consent of the Senate. Subsection (c) of that section provides that “ [e]ach United States Attorney is subject to removal by the President.” The question is whether the President’s removal power under subsection (c) extends to U.S. Attorneys appointed by the court pur- suant to § 546, or whether they can be removed only by the court that ap- pointed them. In our view the first interpretation is the correct one. Normally, as a rule of construction, the power to appoint carries with it the power to remove. See, Myers v. United States, 272 U.S. 52, 119 (1926), and the authorities there cited. Myers, indeed, stands for the proposition that this rule is of a constitutional nature in the case of executive officers appointed by the President by and with the advice and consent of the Senate. On the other hand, where Congress exercises its authority under Article II, section 2, clause 2, of the Constitution by vesting the power of appointing inferior officers in the President alone, the heads of depart- ments, or the courts, it can also regulate the manner for the removal of those officers appointed by department heads and the courts.2 See, United 'The section reads as follows: The district court for a district in which the office of United States Attorney is vacant may appoint a United States Attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court. 'There is no occasion here to discuss the question whether Congress can limit the power of the President to remove inferior officers where Congress has vested the appointment power in the President alone. See, Myers v. United States, 272 U.S. at 158-161. 448 Temporary Filling of Vacancies in the Office of United States Attorney Two statutes that provide for the temporary filling of vacancies in the office of United States Attorney, 28 U.S.C.
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