Bill Barr’s firing of New York US Attorney Geoffrey Berman, explained

US Attorney for the Southern District of New York Geoffrey Berman became the latest Justice Department official to run afoul of the Trump administration this weekend — and ended up being fired for it after an unusual public showdown.

Late on Friday night, Attorney General Bill Barr announced that Berman was “stepping down” from his post. Trump would nominate SEC chair Jay Clayton, who had no prosecutorial experience, to fill the post. But until the Senate confirms Clayton, US Attorney for New Jersey Craig Carpenito would take the job, Barr said.

All this was news to Berman, who issued a statement shortly afterward saying, “I have not resigned, and have no intention of resigning.” He added: “Our investigations will move forward without delay or interruption,” a potential hint that his sudden ouster might relate to delaying or interrupting certain investigations.

With Berman not agreeing to resign, Barr decided to have him fired the next day, announcing that President Trump had officially fired him. (The president himself said he was “not involved” in the matter, though the White House said on Monday he was involved in “a sign-off capacity.”)

Though there was some legal uncertainty about whether Berman, who was technically appointed to his position by judges, could be fired (and if so, by whom), Berman decided not to contest the move further after Barr made an important concession. Barr backed off from his attempt to install Carpenito, his hand-picked acting replacement for Berman. Instead, Barr agreed Berman’s deputy, Audrey Strauss, could take over the post. Strauss is widely respected for her independence, and Berman showered praise on her on his way out the door.

The specific reasons for Berman’s ouster aren’t yet clear. But the bigger picture is no real mystery. In Manhattan, Berman oversaw an independent investigative office that pursued investigations Trump didn’t like — into Trump’s former lawyer Michael Cohen, into Trump’s current lawyer Rudy Giuliani, into Trump’s inaugural committee, and more.

Whether or not Barr found a passable pretext for Berman’s dismissal, the larger context is unmistakable. Again and again in the Trump administration, those who have pursued or supervised investigations that could harm Trump politically end up being pushed out.

Who is Geoffrey Berman?

Berman was appointed US attorney for the Southern District of New York (SDNY) by the Trump administration in January 2018. Long before that, in the early 1990s, he had served as an assistant US attorney for SDNY, and he had spent the next two and a half decades in private practice.

The specifics of Berman’s US attorney appointment are unusual. Trump personally interviewed him for the job but never officially nominated him. Instead, in January 2018, the administration appointed Berman to the post on an acting basis. In general, the Trump administration has used acting appointments to circumvent the Senate — and in this case, they were trying to circumvent Sen. Kirsten Gillibrand (D-NY), who had said she’d try to block Berman’s confirmation. However, once Berman’s interim term was set to expire that April, judges for the Southern District of New York invoked a rarely used authority to give him a full appointment.

During Berman’s tenure at the famously independent SDNY office, prosecutors have pursued several politically fraught cases. They investigated the hush money payments arranged by Trump’s lawyer Michael Cohen to women who had alleged affairs with Trump. securing a guilty plea from Cohen (though Berman recused himself from involvement in this). They also charged Rudy Giuliani’s associates, Lev Parnas and Igor Fruman, with campaign finance violations — and have been investigating Giuliani as well. SDNY prosecutors also scrutinized the finances of the Trump inaugural committee, angered the Turkish government by charging the bank Halkbank with violating Iran sanctions laws, and indicting Jeffrey Epstein last year before Epstein’s untimely demise.

President Trump has “long griped to aides about the New York office, complaining that it was filled with Democrats out to get him,” with specific complaints about the Cohen and Giuliani investigations, according to the Washington Post’s Rosalind Helderman, Ellen Nakashima, Matt Zapotosky, and Seung Min Kim, and Barr’s relationship with Berman had also grown tense.

How Berman’s firing went down

On Friday, Barr met Berman in New York. According to a report by CNN’s Erica Orden, Kara Scannell, and Evan Perez, they had some discussions about Berman potentially taking another job in the Justice Department, but Berman was reluctant. The meeting appears not to have ended with a clear decision or agreement.

Yet shortly after 9 pm ET on Friday, Barr released a statement making three announcements:

  • Berman, he claimed, would be “stepping down” from the US attorney post on July 3.
  • Craig Carpenito, the US attorney for New Jersey, would then be appointed to head SDNY on an acting basis.
  • Jay Clayton, the current chair of the Securities and Exchange Commission, would be nominated by Trump to head SDNY once he is confirmed by the Senate.

Though dressed up like an ordinary personnel announcement, the statement seemed odd. It’s strange for a US Attorney to depart months before the election (the end of the year, also the end of Trump’s term, would be the logical time to transition). Eyebrows were raised that Carpenito, rather than Berman’s deputy at SDNY, would fill the job temporarily, and that Clayton, the nominee, had never been a prosecutor before. And there was the timing: late Friday night, where administrations tend to try to bury bad news or announce involuntary departures.

Things got even weirder, though, when Berman issued his own statement about two hours later. “I have not resigned, and have no intention of resigning,” Berman declared, saying he first learned he was “stepping down” from Barr’s press release.

Berman did say, however, that he’d be happy to step down once a nominee to replace him is confirmed by the Senate. But he objected to being shown the door suddenly — and, it seems, having Carpenito replace him. Furthermore, Berman implied that this may be part of an effort to interfere with certain unnamed investigations. “Our investigations will move forward without delay or interruption,” he said, adding that “this Office’s important cases” will “continue unimpeded.”

So on Saturday morning, Berman went into his office to work. But later in the day, Barr released a new letter officially firing Berman. “With your statement of last night, you have chosen spectacle over public service,” Barr wrote. “I have asked the President to remove you as of today, and he has done so.” (Trump himself claimed he was “not involved” in Berman’s ouster.)

Now, there was some legal question over whether Berman could be fired by Barr or even Trump (because of his unusual appointment by judges), but Berman then chose to accept his firing.

That was at least partly because Barr made an important concession: He dropped the plan to install Carpenito, the US attorney for New Jersey, in Berman’s job. Instead, Barr wrote, Berman’s deputy — Audrey Strauss — would succeed him. “I anticipate she will serve in that capacity until a permanent successor is in place,” Barr wrote. Since Barr would now let Strauss succeed him, Berman said, he thought the office would be in good hands.

It’s not totally clear why Berman was pushed out

Trump and Barr’s defenders have claimed that the point of all this was to get a new job for Jay Clayton. The SEC chair purportedly wanted to move back to New York, so the SDNY US Attorney post would allow him to remain in the administration.

This can’t possibly be the full story, though. If this were all about Clayton, Berman could have simply stayed in his post until Clayton was confirmed. Instead, Barr’s initial plan involved ousting Berman and replacing him temporarily with a prosecutor from a separate district. So the goal wasn’t to get Clayton in — it was to get Berman out, quickly.

It’s no secret that Trump has been angry about SDNY prosecutors’ actions during his tenure, and it’s no secret that Trump and Barr viewed Berman as politically unreliable. (Just this week, Barr and Berman reportedly clashed over a letter the DOJ wanted to send condemning New York City Mayor Bill de Blasio’s social distancing policies.)

So, with Trump’s reelection approaching, Barr may have wanted to prevent any unpleasant “surprises” — news about pesky investigations that would generate bad headlines for the president. (Barr has argued that the Russia investigation was essentially baseless.) Installing someone he and Trump trusted as the SDNY US Attorney could be a means to that end.

Others have speculated that there may be specific developments in unfolding investigations that alarmed Barr or Trump and spurred them to hasty action against Berman. For now, this remains speculation. If it is true, however, one person who would know is Berman himself. House Democrats have invited Berman to testify at a hearing this Wednesday, but it is not yet clear if he will appear.

The larger context: Those who investigate Trump get shown the door

You may be forgiven for feeling a bit of déjà vu here. Berman isn’t the first Trump justice official to be pushed out — he isn’t even the first US attorney for the Southern District of New York to be fired after refusing to resign. (Preet Bharara exited the post in that fashion in March 2017.)

Indeed, the list of law enforcement or investigative officials ousted by Trump has become absurdly long. In just Trump’s first four months in office, he fired the acting attorney general, asked dozens of US attorneys to resign, and dismissed the director of the FBI. Since then, Deputy FBI Director Andrew McCabe, Attorney General Jeff Sessions, FBI general counsel Dana Boente, and several inspectors general across various agencies (including Michael Atkinson, who handled the whistleblower complaint that sparked Trump’s impeachment), among others have been asked to leave or fired.

In fact, a similar situation to Berman’s unfolded at the US Attorney’s Office for the District of Columbia earlier this year. Jessie Liu, the US attorney who was overseeing Michael Flynn’s and Roger Stone’s sentencings, planned to leave her job once confirmed to a Treasury Department post. But Barr asked her to step aside early and installed a close ally of his, Tim Shea, in her place. And once Liu had stepped aside, Trump revoked her nomination to the Treasury job.

Even more broadly, back in February, Carol Lee, Ken Dilanian, and Peter Alexander of NBC News reported that Barr was making a series of moves to “take control of legal matters of personal interest to President Donald Trump.” And Barr also instituted a new rule requiring his personal approval for any investigations into presidential candidates or campaigns.

So all of this certainly looks like Barr clamping down on independent power centers in the Justice Department and trying to get his ducks in a row before Trump’s reelection.

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