In his letter on Saturday, Mr. Barr instead said that Mr. Berman’s deputy, Audrey Strauss, will become the acting U.S. attorney as the law normally provides in the event of a vacancy. He wrote that he anticipated that “she will serve in that capacity until a permanent successor is in place,” without explaining why he was backing down on his initial plan.
That could be particularly important because there is reason to believe that the Senate will not confirm Mr. Trump’s nominee for the position, Jay Clayton, the chairman of the Securities and Exchange Commission, who has no prosecutorial experience. Senator Lindsey Graham, Republican of South Carolina and the chairman of the Judiciary Committee, said on Saturday that he will not move the nomination without the assent of New York’s two Democratic senators.
Complicating matters, Mr. Lederman said, is that it is far from clear that the Trump administration could unilaterally install a different temporary successor to lead the office, as Mr. Barr initially had planned to do.
In 1986, when Samuel A. Alito Jr., now a Supreme Court justice, worked at the Office of Legal Counsel, he wrote a memorandum suggesting the attorney general cannot make successive interim appointments. Still, in 1987, Charles J. Cooper, then the head of the office, wrote in another memo that “it could be argued” that after a president removes a court-appointed U.S. attorney, the power to appoint an interim successor reverts to the attorney general.
“It’s not at all clear that either Trump or Barr — as opposed to the court — could name Berman’s temporary replacement,” Mr. Lederman said.
Back in 1979, Mr. Harmon acknowledged some ambiguity even about who could fire a court-appointed U.S. attorney in the first place. He left open the possibility that district court judges might interpret the conflicting statutes in a way that was more favorable to their own powers rather than the president’s.
Mr. Harmon warned that just because he thought Mr. Carter could remove a court-appointed U.S. attorney did not necessarily mean it would be a good idea “since the incumbent U.S. attorney apparently has the backing of the district court. That court might react unfavorably to any action that does not carefully comport with the letter of the statute.”
William K. Rashbaum contributed reporting from New York.