Trump Pushing Out US Attorney Investigating Trump Associates

For the second time, the chief federal prosecutor for Manhattan has been fired.

A late-night announcement that Geoffrey Berman, the U.S. attorney in Manhattan, was “stepping down” has quickly turned into a major controversy.

The AP initially headlined its report “US attorney who oversaw cases of Trump allies steps down” but has since changed it to “DOJ tries to oust US attorney investigating Trump allies.”

The Justice Department moved abruptly Friday night to oust Geoffrey S. Berman, the U.S. attorney in Manhattan overseeing key prosecutions of President Donald Trump’s allies and an investigation of his personal lawyer Rudy Giuliani. But Berman said he was refusing to leave his post and his ongoing investigations would continue.

“I have not resigned, and have no intention of resigning, my position,” Berman said. His statement came hours after Attorney General William Barr said Berman was stepping down from his position.

The standoff set off an extraordinary clash between the Justice Department and one of the nation’s top districts, which has tried major mob and terror cases over the years. It is also likely to deepen tensions between the Justice Department and congressional Democrats who have pointedly accused Barr of politicizing the agency and acting more like Trump’s personal lawyer than the nation’s chief law enforcement officer.

The move to oust Berman also comes days after allegations surfaced from former Trump national security adviser John Bolton that the president sought to interfere in an Southern District of New York investigation into the state-owned Turkish bank in an effort to cut deals with Turkish President Recep Tayyip Erdoğan.

Barr offered no explanation for why he was pushing out Berman in the statement he issued late Friday. The White House quickly announced that Trump was nominating the chairman of the Securities and Exchange Commission to the job, a lawyer with virtually no experience as a federal prosecutor.

Hours later, Berman issued his own statement saying he had learned that he was being pushed out through a press release. He vowed to stay on the job until a Trump nominee is confirmed by the Senate, challenging Barr’s power to remove him from office because he was appointed to the job by federal judges, not by the president. Under federal law, a U.S. attorney who is appointed by district court judges can serve “until the vacancy is filled.”

To say this is rather unusual would be to understate matters considerably.

The NYT headlines its report “Barr Abruptly Seeks to Fire U.S. Attorney Who Investigated Trump Associates” and adds:

The clash focused new attention on the efforts by Mr. Trump and his closest aides to rid the administration of officials whom the president views as insufficiently loyal. It also touched off a crisis within the Justice Department over one of its most prestigious jobs, at a time when the agency has already been roiled by questions over whether Mr. Barr has undercut its tradition of independence from political interference.

Mr. Berman, the United States attorney for the Southern District of New York, and his team have been at the forefront of corruption inquiries in Mr. Trump’s inner circle. They successfully prosecuted the president’s former personal lawyer, Michael Cohen, who went to prison, and have been investigating Mr. Trump’s current personal lawyer, Rudolph W. Giuliani.

[…]

Mr. Barr asked Mr. Berman to resign, but he refused, so Mr. Barr moved to fire him, according to a person familiar with the matter. Mr. Trump had been discussing removing Mr. Berman for some time with a small group of advisers, the person said. Mr. Trump has been upset with Mr. Berman ever since the Manhattan prosecutor’s office pursued a case against Mr. Cohen.

Mr. Trump’s purge of officials has intensified in the months since the Republican-led Senate acquitted him in the impeachment trial. He has fired or forced out inspectors general with independent oversight over executive branch agencies and other key figures from the trial.

Several dismissals have come late on Friday nights, a time that many White Houses have used to disclose news that they would prefer receive little attention.

The highly public tussle between Mr. Barr and Mr. Berman that unfolded late on Friday was another example of the tumult that has engulfed the Justice Department in recent months.

An NBC News report (“‘I have not resigned’: Manhattan U.S. Attorney Geoffrey Berman fires back at Barr, who says he’s leaving“) adds:

A senior administration official said Barr made the decision because Clayton planned to leave the SEC position and return to New York and expressed interest in the U.S. attorney’s position. The official said Berman was offered another position in the Justice Department but declined.

“It’s no reflection on Berman, but Barr regarded Clayton highly and thought he would be a good fit,” the official said. The official pointed out that the U.S. attorney’s position is a political appointment.

House Judiciary Committee Chairman Jerry Nadler tweeted, “America is right to expect the worst of Bill Barr, who has repeatedly interfered in criminal investigations on Trump’s behalf.”

We have a hearing on this topic on Wednesday,” said Nadler, D-N.Y., who represents parts of Manhattan and Brooklyn. “We welcome Mr. Berman’s testimony and will invite him to testify.”

Preet Bharara, who preceded Berman in the office was fired in the early days of the Trump administration tweeted, “Doesn’t sound like ‘stepping down.'”

He added: “Why does a president get rid of his own hand-picked US Attorney in SDNY on a Friday night, less than 5 months before the election?”

We all know the answer to that. The notion that the SEC Chairman needed a new job this late in the administration and that post was the only one he was interested in doesn’t pass the laugh test.

That this is further politicization of the Justice Department goes without saying. There is a longstanding tradition of replacing all US Attorneys upon a new Presidential administration but retaining them for the entire four-year term absent just cause for firing. Deviation from that norm, especially under the particular circumstances at work here, is more than a little troubling.

But it’s quite likely that Berman is wrong and Barr right about the President’s power to fire a US Attorney. They pretty clearly serve at the pleasure of the President, regardless of whether they were directly or indirectly appointed. Both a 1979 Office of Legal Counsel opinion and Section 502 of the PATRIOT Improvement and Reauthorization Act of 2005 point in that direction. Berman’s appointment was temporary to begin with, a function of the Senate not having confirmed a Trump-appointed successor to Bharara within the required window. (The Law & Crime blog offers some professors with a contrary take, but acknowledges that they’re a minority view.)

FILED UNDER: Donald Trump, Law and the Courts, Presidency, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. JohnMcC says:

    Gosh, the most recent Republican administration was able to purge the U.S. Attorneys ranks pretty thoroughly. What else would we expect from THIS bunch of Republicans? Why get upset NOW?

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  2. James Joyner says:

    @JohnMcC: Presidents routinely “purge” US Attorneys when they take office. The Bush team considered doing so again at the beginning of their second term, ultimately decided doing so was impractical, and instead targeted seven for replacement. Ostensibly, because they weren’t doing enough about “voter fraud.” That was 13 years ago and my recollection is pretty fuzzy. A quick look at the archives reveals that I thought it was pretty much a nothingburger but Steven thought it was at least somewhat problematic.

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  3. alkali says:

    But it’s quite likely that Berman is wrong and Barr right about the President’s power to fire a US Attorney.

    At this writing, Barr has never asserted that the President fired Berman. I understand what you are saying here, but we should not credit Barr with making a claim in good faith that he has expressly declined to make.

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  4. Mike says:

    Nothing banana republic about this. Easier than defending against in court later.

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  5. Mikey says:

    @alkali: I think “we should not credit Barr with making a claim in good faith” is a pretty good rule of thumb in any situation.

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  6. OzarkHillbilly says:

    @alkali: Yep. Outside of TV trump is loath to actually fire people. Barr was sent to get a resignation. He didn’t get it. Berman is saying, “You’re gonna have to fire me.”

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  7. OzarkHillbilly says:

    FWIW, FYI:

    Steve Vladeck
    @steve_vladeck

    Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.

    There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor).

    He posts the relevant sections.

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  8. Michael Cain says:

    Yeah, I assume that a presidential appointment of an acting US attorney, someone previously approved by the Senate for another position, under the Federal Vacancies Act, would take precedence.

    I’ve been wondering about abusing the Federal Vacancies Act lately. Trump has a pool of at least a couple hundred Senate-approved people at his disposal. There doesn’t appear to be any legal reason why he can’t just shuffle those bodies around among the top positions every 210 days and never submit another nomination to the Senate for confirmation. Even if he’s reelected.

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  9. JohnMcC says:

    @James Joyner: When the camel who pushes his nose into the tent finds a welcome, later attempts to bar the critter look pretty insincere. The reason the Bush2 admin got rid of those U.S. Attorneys is that they were insufficiently zealous in prosecuting Democrats.

    But NOW this seems like bad government? C’mon!

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  10. HarvardLaw92 says:

    @OzarkHillbilly:

    Doesn’t work that way. The AG fills the vacancy by installing another USA pending confirmation. Technically speaking, they all work for the AG and, as excepted employees, can be fired by him/her at will. In practical terms, that would only occur if they were ordered to do so by the president, but it’s solid nonetheless.

    I get that it’s political, and it stinks, but legally it is not problematic.

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  11. DrDaveT says:

    The Harding Administration is partying with James Buchanan over finally being able to step out of the limelight of history.

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  12. Kathy says:

    If Biden won’t pursue a second term, he can afford to thoroughly investigate all of Trump’s cabinet for criminal activities while in office, without worrying that it will look like a political vendetta.

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  13. OzarkHillbilly says:

    @HarvardLaw92: Well, you’re arguing with a law professor, not me. From what this hillbilly can see, it’s a bit of a gray area but if I had to guess I’d say you have the right of it.

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  14. Moosebreath says:

    @JohnMcC: @James Joyner:

    John McC is referring to Bush the Younger’s dismissal of a number of US attorneys in December 2006, not at the beginning of either of his terms. The summary in Wikipedia:

    “A subsequent report by the Justice Department Inspector General in October 2008 found that the process used to fire the first seven attorneys and two others dismissed around the same time was “arbitrary”, “fundamentally flawed”, and “raised doubts about the integrity of Department prosecution decisions”. In July 2010, the Department of Justice prosecutors closed the two-year investigation without filing charges after determining that the firing was inappropriately political, but not criminal, saying “Evidence did not demonstrate that any prosecutable criminal offense was committed with regard to the removal of David Iglesias. The investigative team also determined that the evidence did not warrant expanding the scope of the investigation beyond the removal of Iglesias.””

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  15. Moosebreath says:

    The fired US Attorney was not a Never Trumper. From TPM:

    “It is important to remember that Geoff Berman is no Deep State hanger-on. He is a former law partner of Rudy Giuliani and a campaign donor to Trump’s 2016 campaign. Indeed, the fact that he ended up being appointed formally by the judges in the district stemmed from the dubious circumstances of his original appointment. Berman served on Trump’s presidential transition team and Trump personally interviewed Berman before agreeing to nominate to the New York position.”

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  16. CSK says:

    @Moosebreath:
    Does Trump remember any of this?

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  17. Michael Cain says:

    @HarvardLaw92: Technically, only the President can nominate someone and submit their name to the Senate. The AG has some authority to do temporary appointments to fill vacancies. There’s an old OLC opinion around that the AG probably can’t create such a vacancy, but that the President can, even when the US Attorney was appointed by the court.

    One suspects that like the DACA thing, there is some procedurally correct way to replace Berman, but Trump and Co. couldn’t be bothered with details.

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  18. Moosebreath says:

    @CSK:

    “Does Trump remember any of this?”

    Does Trump remember what he had for breakfast this morning?

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  19. Scott F. says:

    @Kathy:
    Whether it will be seen as a political vendetta or not (and it will be painted as purely political by the Republicans regardless of Biden’s long term plans), I think Biden absolutely must thoroughly investigate all of Trump’s cabinet for criminal activities while in office. It truly is existential to the recovery of good governance in this country.

    Though I can appreciate why Obama chose not to (considering his place in history as the first black president and his ambitions to work across the aisle), his decision in the short term to not criminally investigate the criminal activities of Bush II, especially the torture of prisoners, has done real damage to the rule of law in the government. Trump’s behavior proves it. If the only cost of corruption in a president and his administration is the loss of office, then there is nothing to stop them from doing whatever the hell they want to while in office.

    Important players from the Trump administration, not fall guys like Michael Cohen, need to go to trial, and when the evidence indicates go to prison, or all bets are off for the next president who thinks they are king.

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  20. mattbernius says:

    FWIW, NPR is reporting the followings:

    NEW & important: Judiciary Chair @LindseyGrahamSC says he intends to follow the blue slip policy for US Attorney nominations in the case of Jay Clayton, meaning NY's two Democratic senators will have their say on the nominee.— Carrie Johnson (@johnson_carrie) June 20, 2020

    Schumer has said he will not support Clayton’s nomination.

    So lots of battles are being cued up.

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  21. R. Dave says:

    @OzarkHillbilly: Yeah, from what I’ve read on various law blogs and Twitter feeds this morning, it sounds like it’s reasonably clear that Barr can’t simply remove Berman on his own authority under these circumstances, but the President can, and the open question is whether, in that case, he’s immediately removed and replaced by another interim USA or continues to serve unless/until the Senate confirms a new permanent nominee. As that law prof you cited, Steve Vladeck, notes:

    To recap:

    1) Berman was appointed under 28 U.S.C. § 546(d).
    2) That statute contemplates that he keeps his job until a permanent successor is confirmed by the Senate.
    3) 28 U.S.C. § 541(c) says U.S. Attorneys are subject to removal by the President.

    So the statutes conflict.

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  22. Michael Cain says:

    @R. Dave:
    4) 5 U.S.C. § 3345 gives the President broad authority to fill advice-and-consent positions with people who have already been approved by the Senate for other positions, for up to 210 days (more under some circumstances).

    So even more statutes conflict. Not that the administration seems to be going this route, yet. IANAL, but the CRS’s summary of case law on § 3345 suggests that the courts have generally ruled that if the president has authority to make an appointment under § 3345, and chooses to, that overrides other ways that the vacancy might be filled.

    I am nervous that if Trump is reelected, he has a pool of previously-approved people that he can put in most positions, and just shuffle the lineup every 210 days.

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  23. Gustopher says:

    Since the AG cannot fire Berman, and hasn’t even tried to — he erroneously sent out a press release about Bergman’s resignation — this might be a fine time for Berman to pull an all nighter or two, and announce any charges he can.

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  24. Michael Cain says:

    @Gustopher:

    this might be a fine time for Berman to pull an all nighter or two, and announce any charges he can.

    The US Attorneys have to proceed through grand juries, no? It’s possible that he’s sitting on a grand jury indictment, unfiled, but is it likely?

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  25. CSK says:

    Trump has said that he likes to appoint people in an acting capacity because a) senate approval isn’t required and b) it satisfies his taste for the chaos engendered by fairly constant staff turnover. He’s also said the he enjoys keeping people uncertain.

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  26. Jax says:

    Wherever Doug is, I bet he’s face-palming AND head-desking right now.

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  27. James Joyner says:

    @Moosebreath: Yes, I’m aware. As my initial summary noted, it originated out of a suggestion from Harriet Miers that all of the US Attorneys be replaced at the beginning of the second term. The seven targeted were, to the irritation of the Bush Justice Department, insufficiently aggressive in targeting a voter fraud agenda. It violated the norms to do so but, as you say, there was nothing illegal.

    Regardless, that’s a far cry from firing prosecutors working on a specific case targeting the President and/or his closest associates—as has now happened twice with this particular position.

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  28. dazedandconfused says:

    @OzarkHillbilly:

    Ozark,
    As a fellow knuckle-dragger (IANAL) I’ll opine the Constitution has an unintended loop hole: It gives Congress the power to impeach but makes no requirement to ever do so. Thereby, if more than 1/2 of the Senate wants a POTUS who is above the law, they get (got) it. I suspect it was a thing beyond imagining at the time or a thing practically impossible to check between elections should it occur.

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  29. Jen says:

    This is totally something an innocent person with nothing to hide would do, right? /s

    Gawd this administration is awful. I hope Berman is working this weekend.

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  30. HarvardLaw92 says:

    @Michael Cain:

    28 USC 546 empowers the AG to fill vacant USA slots on a temporary basis. You’re correct that permanent occupants (ie those to be confirmed by the Senate) may only be nominated by the president. I was discussing temps. Sorry for the confusion.

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  31. Just nutha ignint cracker says:

    @Moosebreath: Wow! Rudy had a traitor–and right in the middle of his own law practice. The extent to which the deep state will go to corrupt our nation and its leadership is astounding, n’est pas?

    ETA: It’s very disturbing to see how these evil people will take advantage of two old men in this way. So sad. Bigly. Preying on the gullibility of the old. Low. Pathetic.

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  32. CSK says:

    Interesting: Lindsey Graham has effectively blocked Trump from nominating someone to replace Berman by stating that as chair of the Judiciary Committee, he requires the consent of Gillibrand and Schumer to any name put forth. Of course Schumer and Gillibrand aren’t going to sign off on any Trump nominee.

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  33. Jen says:

    Bunch of different outlets reporting that Trump has (directly & officially) fired Berman.

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  34. CSK says:

    @Jen:
    The WaPo reports that Barr asked Trump to can Berman, and Trump complied. What a clusterf*ck.

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  35. Jen says:

    @CSK: A few reporters on Twitter saying that the president said this was “Barr’s decision.” Which undercuts Barr’s assertion that he did so *at the request of the President.*

    These people are all idiots and liars.

    Preet Bharara and Rick Wilson are having fun though.

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  36. Gustopher says:

    For a man whose catchphrase is “you’re fired”, Trump really fucks up firing people, doesn’t he?

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  37. Hal_10000 says:

    If I understand correctly, the acting SDNY will be Audrey Strauss. She’s not exactly a friend of this Administration, having led a number of investigations into Trum.

    Given the controversy, I think it’s only appropriate that we let the American people speak in an election before Trump is allowed to appoint one of his toadies to this position. I was told, four years ago, that was how these things worked.

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  38. CSK says:

    @Hal_10000:
    Yes, I too have read that Strauss will be the acting SDNY U.S. Attorney. Given that she’s not exactly Trump-friendly, what has Trump accomplished?

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  39. Raoul says:

    Firing US attorneys for not pursuing fraudulent investigations is a “nothingburger”? And yet one wonders how we got to the current state of affairs.

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  40. Just nutha ignint cracker says:

    @Hal_10000: That was then; this is now.

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  41. sam says:

    The fuckwittery of Trump & Co. is boundless: Not my department.

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  42. de stijl says:

    What with the dismissals of multiple Inspectors General and the purging of the DOJ and appointed US Attorneys, one could say a definite pattern is emerging.

    Barr is a menace to our values. This is authoritarian banana republic style retribution and house cleaning.

    On the plus side, every day is one day closer to election day.

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  43. Jen says:

    You know, what this feels like to me is: Barr and Trump decided they wanted Berman out. Barr talks to Berman, tells him this is what’s coming, and Berman waited until the announcement to see who was getting the nod to replace. Berman decides that the lackey Barr named in the first press release isn’t appropriate, so he issues the “nope, not stepping down” statement.

    Barr, realizing he now has egg on his face, makes the adjustment in who will replace Berman–Strauss well could have been picked by Berman as the only one he’d accept/go quietly for.

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  44. CSK says:

    @Jen:
    Then Trump and Barr made fools of themselves for nothing, didn’t they?

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  45. Jen says:

    @CSK: Yep.

    I’ve just been puzzling about the change in names, and that’s the only thing I could come up with–why else would they bother to change to someone who is not friendly to the administration? Berman must have realized he had a bargaining chip and used it. The whole thing makes no sense otherwise.

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  46. de stijl says:

    Idiots can’t even fire someone correctly.

    Wasn’t firing people supposed to be one of Trump’s core competencies?

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  47. CSK says:

    @Jen:
    And if Audrey Strauss has any loyalty to Berman, which she probably does, she’ll double down on any investigations into Trump was Berman was conducting. Amusing factoid: Strauss once bested Roy Cohn in court; he was representing two Mafioso.

    What makes the whole thing even more idiotic is that while Barr is saying Trump instructed him to fire Berman, Trump is saying he had nothing to do with it.

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  48. Pylon says:

    Can Strauss hire Berman as her Deputy? Asking for a friend.

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  49. Just nutha ignint cracker says:

    @de stijl: Ayup! Hiring, too!

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  50. mattbernius says:

    @CSK:
    The general consensus is that Berman “won” this exchange in that they blinked and (1) didn’t appoint a replacement from NJ and (2) ensured that Clayton is DOA in terms of a Senate nomination.

    All that said, I continue to be concerned that the only “check” that appears to be this adminstration is that they are as administratively inept as they are corrupt. That is not a recipe for our long term success as a nation.

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  51. de stijl says:

    @mattbernius:

    I fear a future competent R presidency.

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