In a move that’s drawn inevitable comparisons to Nixon’s Saturday Night Massacre, Attorney General Bill Barr issued a press release after 9 pm on Friday night, announcing the replacement of the US Attorney for the Southern District of New York. “…I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York.”
In a surreal turn of events, an hour later, Berman released this statement:
This exchange is understandably rocking Washington. There is a lot going on in this story. Let me try to break it down for you:
First, you need to understand Attorney General Bill Barr. He is a man who has consistently used his power as head of the Justice Department to protect the president’s political interests and to shield him and his associates from legal consequences. Examples:
The widely-held belief among Republicans that the Mueller report totally exonerated Trump comes not from the actual report, but from AG Barr’s letter to Congress, summarizing the not-yet-released report. Based on Barr’s letter, media reported that the investigation found no collusion and no obstruction of justice, when in fact, the report found considerable links between the Trump campaign and Russia, and strongly suggested the president had obstructed justice. But it was too late. The narrative had been established by the AG, and for millions of Americans, it remains unalterable fact. But in March of this year, a federal judge—a George W Bush appointee—excoriated Barr for his handling of the Mueller report. Barr’s inconsistencies, the judge writes, “cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump.” The judge concurred with Special Counsel Mueller that “Attorney General Barr distorted the findings in the Mueller Report.”
Federal prosecutors recommended a sentence of 7-9 years for Roger Stone, a Trump associate who lied to Congress about his contacts with Wikileaks during the 2016 election. The president tweeted angrily about the unfairness of such a sentence for his longtime ally, and the very next day, the DOJ undermined the prosecutors by filing a revised recommendation, asking for far less prison time for Stone. Four prosecutors quit the case, and one of them resigned entirely. Over 1,000 alumni of the Justice Department signed a letter calling on Barr to resign over this incident, saying, “Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.”
In May, in a stunning about-face, Barr’s DOJ moved to drop charges against Michael Flynn, Trump’s first National Security Advisor. Flynn had already twice admitted under oath that he had lied to the FBI about his contacts with Russia. Faced with this unprecedented request, Judge Sullivan selected a former judge, John Gleeson, to weigh in. After reviewing the case, Gleeson blasted Barr and the DOJ, calling their claims “preposterous” and accusing them of “gross abuse of prosecutorial power.” He called the request “an unconvincing effort to disguise as legitimate a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”
That’s who Bill Barr is. That’s who lied to you and me about Berman stepping down. So, the obvious question is: why? Why does Barr (read: Trump) want to be rid of US Attorney Berman? Planning to replace him, by the way, with Jay Clayton, Chairman of the Securities and Exchange Commission, who has never been a prosecutor?
We can’t know for sure, but I have a few guesses.
First let’s talk about how Berman got the job. In November of 2016, US Attorney Preet Bharara had been in charge of the SDNY for seven years. He was asked by the president-elect to stay on in the position, and he agreed. On March 8, an ethics watchdog group sent him a letter, urging him to investigate Trump for potential violations of the Emoluments Clause—financial conflicts of interest due to his business ventures in foreign countries. Three days later, Trump fired him.
I can’t say conclusively that the events are linked, but it’s a fact that they occurred, and on that timeline.
In January of 2018, then-Attorney General Jeff Sessions appointed Geoff Berman as interim US Attorney for the SDNY. Berman was a Republican—a Trump donor—and his appointment was opposed by Senate Democrats. US Attorneys are supposed to be chosen by the president and confirmed by the Senate. But Trump left several US Attorney positions—including the SDNY—unfilled for so long that in Berman’s case, federal judges took advantage of a seldom-used power to make Berman’s position permanent, one week before his 120-day term was set to end. As explained in this 2018 article, under federal law, Berman is to serve as US Attorney until Trump nominates and the Senate confirms his replacement.
Which would seem to indicate that Barr does not have the power to force Berman out, as he does with most US Attorneys. This sets up an explosive battle between the DOJ (the executive branch) and the Southern District of New York.
But again, the question is: why does he want to force him out and replace him with a man who has never served as a prosecutor?
Why make a move like this, which is sure to draw scrutiny?
Again, all I have are guesses. Much like Trump’s tax returns, I have to assume that whatever he’s hiding is worse than the heat he’ll take for hiding it.
Berman’s SDNY prosecuted Trump attorney Michael Cohen, who pleaded guilty to eight felony counts and was sentenced to three years in prison. In court, while pleading for leniency, Cohen told the judge, “My weakness could be characterized as a blind loyalty to Donald Trump.”
Berman’s SDNY is conducting an ongoing investigation of Trump’s personal attorney and longtime ally, Rudy Giuliani. It has already brought charges against Giuliani’s associates, Lev Parnas and Igor Fruman, who were involved in the Ukraine scandal that led to Trump’s impeachment.
It’s been reported that the SDNY is investigating Deutsche Bank for suspected money laundering. Deutsche Bank has long been reported to have loaned billions of dollars to Trump companies.
After the death of Jeffrey Epstein, Berman affirmed that the SDNY would continue its sex-trafficking investigation into the conduct charged in his indictment. Donald Trump’s (and Bill Clinton’s) connections to Jeffrey Epstein are well-known.
Read Berman’s statement again. He twice emphasizes that his investigations will continue. Reading between the lines, the investigations are what he’s trying to protect, and Barr is trying to stop.
No one knows yet who will win this standoff. But it’s a safe bet that the pattern of Trump and Barr subverting justice will continue until they no longer have power to do so.
UPDATE: I wrote this article on Saturday the 20th. Since then, Barr wrote a public reply to Berman, telling him, “Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.” (Apparently, though the AG does not have the power to remove a US Attorney appointed by judges, the president does.) However, when asked why he’s firing Berman, the president said it’s all up to Barr, and denied any involvement.
Berman, therefore, probably could have fought his ouster longer, but he has decided to leave immediately, and there seems to be one reason why. In Barr’s original press release, he said that Berman’s interim successor would be Craig Carpenito, current USA for New Jersey. With Berman being fired rather than stepping down, now his interim replacement must be his own Deputy US Attorney, Audrey Strauss. Berman says of Strauss, “She is the smartest, most principled, and effective lawyer with whom I have ever had the privilege of working.”
The House Judiciary Committee has opened an investigation of this matter.