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More Complicated Than It Looks

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June 20, 2020 11:38 a.m.

An anonymous DOJ vet shares some key details about Geoff Berman’s unique legal status as US Attorney in the Southern District of New York.

Many others weighing in about the SDNY fiasco, but I’m not seeing this point, which is worth considering.

Even if Trump can ultimately dislodge Berman (under 28 USC 541 he, though not Barr, can likely fire him), he can’t pick the temporary replacement. Until the Senate confirms someone, that choice plainly belongs exclusively to the SDNY judges under 18 USC 846. If Trump tries to ignore that and install his own pick anyway he faces two problems he can’t easily overcome. First, there would be a staff revolt. Second, every criminal defendant indicted under the bogus US Attorney would have standing to seek dismissal because the indictment was not authorized or signed by the lawful US Attorney — and those motions would be decided by the same SDNY judges whose authority Trump is trying to usurp.

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