Barr v. Berman: Manhattan U.S. Attorney Refuses To Leave Office After Announced Replacement [Updated]

440px-William_Barr864px-Geoffrey_S._BermanAttorney General William Barr announced that Geoffrey Berman will be stepping down as the U.S. Attorney in Manhattan. That clearly came as a surprise to Berman who dashed off a blistering response that he is neither resigning nor stepping down until a replacement is confirmed by the United States Senate.  Berman could now be fired, but the move by Barr raises legitimate issues for congressional investigation since Berman has been at the forefront of the investigation into Trump associates, including an ongoing investigation into Trump lawyer Rudy Giuliani’s business activities.  The sudden late Friday replacement only added to those concerns and Barr needs to address these questions fully and quickly.  This is a very serious matter if Berman is being canned due to his investigations, particularly given President Donald Trump’s continual criticism of those investigations. Update: As predicted, Trump has now fired Berman and Berman has agreed to leave immediately.

From the very start of his administration, President Trump has failed to respect the separation of the White House from Justice Department investigations, particularly those impacting his own interests.  Trump previously fired Preet Bharara and was conducting investigations into Trump’s business interests.  Trump has also carried out a frontal assault on our system of inspectors general.

Not only is the pattern suspicious but the timing and manner of this action is deeply concerning.  Barr announced that Berman “has done an excellent job leading one of our nation’s most significant U.S. attorney’s offices, achieving many successes on consequential civil and criminal matters.” However, he announced that the president will nominate Jay Clayton to succeed Berman.

“For the past three years, Jay has been an extraordinarily successful SEC Chairman, overseeing efforts to modernize regulation of the capital markets, protect Main Street investors, enhance American competitiveness, and address challenges ranging from cybersecurity issues to the COVID-19 pandemic.”

Berman sent out a flaming response:

“I learned in a news release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York. I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor – and intend to ensure that this Office’s important cases continue unimpeded.”

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Of course, Berman holds a political appointment and it is not up to him when to leave. However, he would have to be now fired if he is refusing to “step down.”  Thus, his insistence on remaining until a replacement is confirmed is only possible if Barr does not terminate him.

Barr may do so that since he also announced that Craig Carpenito, the United States Attorney in New Jersey, will serve as acting US attorney in New York. It is true that Berman was appointed by the court. However, it would raise separation of powers problems if Berman claimed he could not be fire by Trump (via Barr). For better or worse, they serve at the pleasure of the president not the court.  Berman may be arguing that the court appointment means that he can remain until a replacement is confirmed. That would trigger a novel fight over rivaling executive and judicial authority. The Supreme Court is likely to be favor Trump on his inherent authority.

That is the intriguing element.  If this were merely the replacement of an official with someone deemed better, it makes little sense to appoint an interim replacement to guarantee the immediate departure of Berman.  That again raises the question of why now and why in this fashion.

Among the most notable investigations in the Southern District is the prosecution of  two Florida businessmen, Lev Parnas and Igor Fruman, who were close former associates of Giuliani linked to the Ukraine impeachment investigation. There are also reports that the Southern District may be investigating Giuliani’s consulting business and donations made to America First Action, the main pro-Trump super PAC as well as a related nonprofit group.

As with the Mueller investigation, Barr did not move to hamper such investigations or prosecutions. So the question is: why now?  The SDNY has been aggressively pursuing the investigations under Barr and there are no reports of political interference.  Moreover, when Barr has broken with trial-level prosecutors in cases like Flynn and Stone, he did so openly and directly with statements on the legal and factual grounds for the changes. Thus, this may be entirely unrelated to the Parnas, Fruman, and Giuliani investigations.  Indeed, there are internal investigations being completed by figures like U.S. Attorney John Berman and other issues that could have played a role in this decision.  If Barr, however, felt that such matters demand confidentiality, he must also recognize that the appearance of political influence (given the President’s past comments) demand to be addressed. It is certainly not established that there is a “purge” unfolding at the SDNY:

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I have known Bill Barr for years and testified at his confirmation hearing.  I have always known him to be a person of integrity and principle. While we disagree on subjects like executive power, he has always respected the independent role of the Justice Department and the need to protect it from political interference.  For that reason, I believe that he has been unfairly criticized for some of his actions even though I have joined in other criticisms when I felt that he was in the wrong.  I would be astonished if this action was an effort to derail investigations into Giuliani or Trump associates. We need to reserve judgment but we also need answers.

If the President wanted Berman fired, Barr would have to carry out that order or resign.  He is no Sally Yates, who improperly ordered the Justice Department not to assist the President in his original travel ban order.  Like others who disagreed with original ban, I wrote at the time that Yates should have resigned if she disagreed with the order. It is not clear if Trump ordered this firing or whether it had anything to do with Trump-related investigations. The question remains the motivation behind this action and protection of the underlying investigations.  It is possible that there was a breakdown in the working relationship between Main Justice and SDNY that is separate and distinct from these investigations.  After all, these investigations have been continuing under Barr without any reported impediment or termination.  Barr should have addressed those questions in taking this action.

This is one of the most serious allegations to arise during his tenure. Barr needs to be clear as to why he wanted to remove Berman and, most importantly, to guarantee that the underlying investigations will not be impacted by this change in leadership.  In the interim, this is a valid matter for congressional oversight in both houses. The move late on a Friday night was itself a serious mistake that only magnified the concerns over political motivations in the action.  The public has a right to be assured that this decision was made for reasons entirely separate from the underlying investigations and that those investigations will not be impeded through this action.

Update: Barr has indicated that the change will not result in any change in pending cases:

“Your statement also wrongly implies that your continued tenure in the office is necessary to ensure that cases now pending in the Southern District of New York are handled appropriately. This is obviously false. I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance.”

307 thoughts on “Barr v. Berman: Manhattan U.S. Attorney Refuses To Leave Office After Announced Replacement [Updated]”

  1. I’m really interested in your take on the latest NYT piece on Barr. They are throwing out some heavy accusations.

  2. Jimmy Kimmel apparently has had tape surface with him making racist remarks. Recently he took leave “to spend more time with his family.” Funny how the left’s witch hunts for racists keeps catching leftists.

  3. “As President Trump works toward building a more perfect union, America can dream again. Immediately after Floyd’s brutal death, Trump made clear that he is fully committed to ensuring justice will be served for George and his family — that he will not have died on that gray pavement in vain. “Equal justice under the law,” the president said, “must mean that every American receives equal treatment in every encounter with law enforcement, regardless of race, color, gender, or creed.””

    Dr. Alveda King is an evangelist and the niece of Dr. Martin Luther King Jr. She is a member of Black Voices for Trump.

  4. Interesting things one finds in the New York Sun. ‘Title 28, Section 541. That section says: ‘Each United States attorney is subject to removal by the President.’ It establishes no exceptions. The Carter-era memo endorsed the point, citing a federal court ruling in New York holding that the law ‘clearly authorizes the executive to remove any United States Attorney, regardless of the nature of his appointment.’” So, bye, Felicia.

    1. I won’t be bullied, sick of these pigs trying to bring in Communism, we must stop them! They have successfully destroyed Argentina’s economy, Brazil, Venezuela, all of the prosperity in Central and South America, as well as much of Europe, and of course the African countries are in shambles, they’re big push now is to destroy the United States of America to bring under their New World Order rule and Satan’s kingdom, under the U.N., George H. Bush said so in his September 11, 1991 speech, exactly 10 years to the day that the CIA, with GHB’s help and guidance struck America’s soil by destroying the twin towers and parts of the pentagon, they intended to hit the white house but was stopped. Every president since then, with the exception of Ronald Reagan, touted the NWO, and those presidents were placed in office by GHB and cheating at the polls. They are trying to do it again this election, with their impeachment sham, investigations after investigations, coronavirus, and their tyrannical lockdowns. This is war!

  5. when they start heaving rocks through windows at Yale and Harvard, then we will know they are serious. and then Harvard and Yale can figure out how to put Humpty Dumpty together again. I will sit back and enjoy that prospect with much interest.

  6. The Democrat party is the party of the KKK, of segregation, of slavery. It must change its corrupted name.

    1. When Woodrow Wilson became President he changed the name of the Democrat Party to Progressive Liberals. They have had a number of names since then Darwinists and Scientific Administrators aso come to mind. They have since Woodrow Wilson in 1909 NEVER been the slightest democratic just as our Constitutional Republic has never been a Democracy. To disprove that find the word in any of it’s forms in Our Constitution. To prove that the delegates of the 13 Nation States sitting in Congress twice rejected the name or use of the word Democracy nine times.

      It is true they adopted some of the principles of a Democracy such as each Whole Citizen having a vote at every level of Our Constitutional Republic but that feature is not a hall mark of the current falsely named Democrat Party.

      To be accurate They are Socialists another name for progressive liberals hiding behind the name of Democrat. Young is exactly perfectly correct in his comment to include the reference to the Party of Slavery, Northern Democrats selling and Southern Democrats buying which became the Party of Black Laws and Jim Crow Laws and then under Wilson became the party of anti civil rights as he changed it to the Socialist Progressive Liberal Party and THAT is their true name.

  7. The prosecutor should seek to reform and improve the administration of criminal justice, and when inadequacies or injustices in the substantive or procedural law come to the prosecutor’s attention, the prosecutor should stimulate and support efforts for remedial action, i.e., resign.

  8. By lying, Barr shows himself unfit for duty. However, his lying now makes interagency coopération impossible. Two other cabinet members are West Point graduates. With a code of honor of not lying cheating, stealing, or tolerating those that do, the secretdries if state and defense will break the non-toleration clause of their honor code any time those agency heads conduct interagency work.

  9. Yale must go.

    Boalt said something racist so his name is chiseled from the building and expunged from the University of California.

    Yale actually engaged in the slave trade.

    Surely by the delicate standards of the age, Yale should change its name to something less racist.

    What is just for Boalt Hall is triple just for slave trader Yale.

    1. “[Boalt’s] name is … expunged from the University of California.”

      Either you don’t know the definition of “expunge,” or you’re lying. Boalt’s name remains in all sorts of UC documents. It’s astoundingly easy to find his name in the berkeley.edu domain.
      UCB’s law school was not originally named after Boalt; you’re fixated on a false analogy.

      1. Would you prefer ‘chiseled’ to ‘expunged’? The photos online show ‘Boalt’ being chiseled from the actual building.

        Let’s go to basics.

        Boalt is chiseled from the building because the man said something racist.

        Yale was an actual slaver, therefore chisel his name from the university buildings.

        Tattoo ‘stupid’ on your forehead.

        1. LOL if you think “the building” (your new claim) and “the University of California” (the false claim you originally made) are synonyms.

          And if you’re into tattoos, you’re free to tattoo your own head.

            1. The point is that you’re trying to draw a false analogy. Yeah, I get that, whence my noting “you’re fixated on a false analogy” earlier.

    2. even the Supreme Court had house slaves. oh i don’t just mean that Justices owned them personally– i mean there were slaves quartered at the premises. oh, let these radicals loose on American to do their thing, and who knows which oxes will be gored next

      i heard a BLM say something i agreed with, finally– one said, “Slavery was not that long ago

      I agree. & let’s tease out that frayed thread and see how the whole tapestry unravels. you know, it’s the billionaires who literally have the most to lose anyways. they don’t deserve the protection of the police anymore in my mind. let’ see how it goes if the anarchists want to set up a CHAZ – CHOP house in their backyards!~

      1. The Portland mayor let the savages destroy throughout the town but when they set up on his block he called the police he pretended to despise.

        Why do they keep electing these amoral cretins?

    3. Slavery of the blacks in America was a long time ago, why are we still fighting that battle? All people in America are free and have been for a long time! This is just politics, those Democrats/Communists don’t care one bit about the blacks, they are just being used to keep their narrative in the news and always just before an election, period! The Democrats/Communists are evil, evil people! Why do black people continue to fall for this crap?

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