In 1979, during the Carter administration, the Justice Department’s Office of Legal Counsel, which analyzes legal issues for the executive branch, looked at this question. It concluded that the president — but not the attorney general — could fire such an official.
In a memorandum opinion, John M. Harmon, the head of the office at the time, cited the law that says presidents may fire U.S. attorneys. The law’s broad wording makes sense, he wrote, only if it is applied not just to presidentially appointed U.S. attorneys “but also is to be read as extending to ‘each’ U.S. attorney, including the court-appointed ones whom the president could not remove without congressional leave.”
Mr. Harmon also pointed to constitutional arguments to back his conclusion: U.S. attorneys exercise executive power, making the president responsible for the conduct of their offices, so the president “must have the power to remove one he believes is an unsuitable incumbent, regardless of who appointed him,” he wrote.
District court judges in Manhattan may be inclined to disagree and back an alternative interpretation that keeps in their hands the power to remove a U.S. attorney they appointed. But if potential litigation over the issue were to go all the way to the Supreme Court, a majority of the justices are Republican appointees steeped in a conservative ideology of White House power that includes a robust view of the president’s ability to remove officials.
In addition, Mr. Harmon wrote in 1979, it might violate constitutional protections for due process of law if judges overseeing cases as neutral arbiters had the power to fire prosecutors if the judges did not like how they handle their responsibilities.
Office of Legal Counsel opinions are generally considered to be binding interpretations of the law for Justice Department officials, but they are not legal precedents in the sense of judicial opinions by appeals courts or the Supreme Court. The 1979 opinion pointed to one district court opinion from 1963 — also in Manhattan — which expressed the view that a president may remove a court-appointed prosecutor.
Even if that is the case, Mr. Barr overstepped by trying to oust Mr. Berman on his own. Kelly T. Currie, a former acting U.S. attorney in Brooklyn, said Mr. Berman had “called the attorney general’s bluff” because only the president, not Mr. Barr, had the power to remove him.