Attorney General William Barr may have fired the opening salvo against Geoffrey Berman, but in the end, he lost the battle.
After announcing Friday night that Berman was “stepping down” as U.S. Attorney for the Southern District of New York, Barr got his way when Berman left his post on Saturday. But in the process, Barr exposed himself as a lying bully who is determined to subvert the independence of our nation’s federal prosecutors.
Attorney General William Barr may have fired the opening salvo against Geoffrey Berman, but in the end, he lost the battle.
The drama began on Friday night, when Barr issued a surprising press release that President Donald Trump would be nominating Jay Clayton as the U.S. attorney in Manhattan to replace Berman, and that the New Jersey U.S. attorney would fill in and do double duty until Clayton could be confirmed. Clayton, now chairman of the Securities and Exchange Commission, has no experience as a prosecutor, but he has played golf with Trump.
Later that evening, Berman issued a statement of his own that was even more stunning. He stated that, in fact, he had “not resigned,” and that he would step down only when a presidential nominee was confirmed by the Senate. Berman vowed that until then, “investigations will move forward without delay or interruption,” that he would “pursue justice without fear or favor” and would “ensure that this Office's important cases continue unimpeded.” The strong implication of Berman’s statement was that Barr was trying to subvert those goals.
On Saturday, Barr fired back with a letter to Berman that contained details clearly intended for public consumption. Barr’s letter stated that upon his request, Trump had removed Berman, though Trump later denied being involved in the decision. Barr’s letter also accused Berman of choosing “public spectacle over public service,” even though it was Barr who attempted to pressure Berman into quitting by falsely announcing his resignation.
Barr’s letter did not explain why he wanted to remove Berman, but it contained a revealing tidbit. He said that he and Berman were still in talks about a potential senior position in the DOJ, including assistant attorney general for DOJ’s Civil Division or chairman of the SEC. Offering Berman a high post means that Barr and Trump did not think that Berman was incompetent or that they had lost confidence in him. Trump doesn’t keep such people around, especially those he believes to be disloyal. What then could be the reason for wanting to remove Trump’s handpicked U.S. attorney from one of the nation’s largest and busiest federal prosecutor’s offices?
One clue can be found in a recent kerfuffle over at the U.S. Attorney’s Office in the District of Columbia. Trump moved U.S. Attorney Jessie Liu by offering her a post at the Treasury Department, which he later withdrew. Upon Liu’s departure, Barr promptly installed as acting U.S. attorney his close aide Timothy Shea. In his three months on the job, Shea reduced the sentencing recommendation for Roger Stone and moved to dismiss the case against Michael Flynn — both Trump’s allies who were charged by special counsel Robert Mueller as part of his investigation into Russian election interference. As a result of Shea’s actions, case prosecutors withdrew from the respective cases. One prosecutor even quit the DOJ altogether. Trump announced the nomination of a new U.S. Attorney for the District of Columbia in May.
Like the prosecutors in the D.C. office, lawyers in the Southern District of New York are reportedly working on matters that hit close to home for Trump. Berman had recused himself from investigating Trump’s lawyer Michael Cohen, whose campaign finance charges included reference to an unindicted co-conspirator identified as "Individual-1," believed to be Trump himself. Trump publicly and repeatedly expressed outrage when former Attorney General Jeff Sessions recused himself from the Russia investigation, and likely felt the same way about Berman’s recusal from the Cohen matter, preferring a U.S. attorney who would protect his interests.
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The Southern District of New York is also reportedly investigating others close to Trump, such as his lawyer Rudy Giuliani, spending by Trump’s inaugural committee and sex trafficking by associates of Jeffrey Epstein. The district also has jurisdiction over matters occurring at Trump Tower, Trump’s home before his presidency and the headquarters of Trump’s business, the Trump Organization. Removing Berman against his wishes without any stated reason, especially when he is considered qualified to hold other senior positions within the administration, creates an impression that Barr is simply replicating the formula he used in D.C. to install a U.S. attorney he can control to protect Trump and his allies.
On Sunday, more than 130 former New York prosecutors signed a letter denouncing Barr’s conduct, stating: “The impartial administration of Justice is what distinguishes the United States from authoritarian regimes around the world and is fundamental to our democracy. The President and the Attorney General have put this long and important tradition at risk.”
Through a quirk in Berman’s appointment, it was not clear that Barr’s initial plan to replace Berman with Carpenito was legal.
The acting successor that Barr originally announced, Craig Carpenito, had served as former New Jersey Gov. Chris Christie’s lawyer in the Bridgegate scandal. Through a quirk in Berman’s appointment, it was not clear that Barr’s initial plan to replace Berman with Carpenito was legal. Because Berman had been appointed by the court rather than through the usual process of presidential nomination and Senate confirmation, the law says he must be replaced by a nominee who was also Senate confirmed or, presumably, approved by the judges of the Southern District of New York.
With Berman’s backing, the court might have supported Carpenito. Once Berman defied Barr, the attorney general backed down and filled his vacancy with Berman’s deputy, Audrey Strauss, a career prosecutor whose integrity has not been questioned. Berman’s refusal to play along will now keep Carpenito in New Jersey. With Strauss in place to protect the office’s integrity and independence, the Southern District is unlikely to face the kind of tumult we have seen recently in the D.C. U.S. attorney’s office.
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But of course, even though Barr lost this battle, the war against the rule of law rages on. He still controls the ultimate decisions about whether certain cases may begin, whether sensitive investigative steps may be undertaken and whether charges may be filed in high-profile cases. If he wanted to, Barr could suppress charges against Trump associates or anyone else. But without an ally in the key U.S. attorney’s seat, abuses of power will not happen quietly.
