Attorney 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.”
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:
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.”
As one of innumerable Trump interim appointees lacking Senate confirmation – the great deal maker can’t deal with GOP Senate – that status throws Trump’s ability to fire him in legal limbo.
Tough break
“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.”
Do we really have to act this clueless???
Jon, I get it. You’ve known Barr for a long time and in your discussions with him you’ve not overtly discussed corruption in a Dr. Evil sort of way. But your motto on this blog is: Res Ipsa loquitur the thing itself speaks. Time to take your own sentiment and apply it to what’s realistically going on here and is absolutely clear to anyone. The fix is in with Barr just as it was in Mitch McConnell’s senate during the impeachment trial.
What’s it going to take, Professor? No intern would actually blow Barr or Trump so i guess they’re going to continue the legal equivalent of shooting people on 5th Ave and you’re going to have continue to clean up the mess.
Finally, Prof Turley, has a smidgeon of doubt about Barr’s integrity.
Meanwhile,
A Republican who contributed to the president’s election campaign, Berman worked for the same law firm as Giuliani and was put in his job by the Trump administration. But as U.S. attorney, he won over some skeptics after he went after Trump allies, and had a direct hand in other investigations that have angered the president.
Berman was appointed by then-Attorney General Jeff Sessions in January 2018, after Preet Bharara, then US attorney in New York, was fired. Bharara had refused to resign along with dozens of other federal prosecutors appointed by President Barack Obama.
Via the article linked below:
‘Berman’s purported firing is likely to send a shockwave through Washington, as it comes ahead of the release of former national security adviser John Bolton’s book, in which Bolton details an exchange that Trump had with Turkish President Recep Tayyip Erdogan about the Southern District.
‘According to Bolton, after Erdogan handed Trump a memo saying that a Turkish firm under investigation by SDNY was innocent, Trump told Erdogan, “he would take care of things, explaining that the Southern District prosecutors were not his people, but were Obama people, a problem that would be fixed when they were replaced by his people.”‘
And another excerpt:
‘”The attorney general has known Jay Clayton for years and holds him in high regard,” a Justice Department official told ABC News. “Jay was getting ready to leave the administration and go back to New York. He expressed interest in SDNY. The attorney general thought it was a good idea. He offered Berman other positions, including head of the Civil Division at Main Justice. Berman declined. That’s that.”‘
https://abcnews.go.com/Politics/president-donald-trump-fires-us-attorney-southern-district/story?id=71357518
there is no need to post the content. The link is more than sufficient not that anybody will click on it….which is why…
Time for an intervention….go play with your grandkids
Cundy weighs in with more drivel @ 9:40 AM.
And so it goes.
Neighbors are ignored, Americans avert their eyes from people approaching them (masks comes in handy), teenage children are keeping to their electronic devices that their parents threw at them so that “the adults” could act on their OCD behaviors, Americans toss their elderly parents into nursing homes because they have no time to care for their declining years, and their marriages are as nonexistent as their personal moral inventory.
But by all means lets rail against the latest political rage (number 1,024 and counting) to show our depth of character and integrity. Americans have to convince themselves they do stand for honor and righteous living. Just don’t ask their relatives, in-laws or church members. They haven’t a clue who they have become since they never engage them either
A meteor crashing against the Earth would do wonders right about now
Calm down, anon @ 9:25.
Bolton says Trump tried to do a requested legal favor for Turkish prez Erdogan but told him the SDNY was not his people and he was therefore limited.
BERMAN is Gone by early next week. He will be escorted out of his office or carried out by US Marshalls. AG Barr will most likely fire Berman if Berman decides to fight it but sense Berman is having deep though and will realize he has a choice leave/be fired/ as well as escorted out.
Suspect Barr has found something in his internal investigation which leads directly to Berman and has given away out or else Barr fires Berman.
Berman can’t and will not stay – he is gone
Berman was appointed by judges under 28 U.S.C. §546(d), and Barr cannot legally fire him.
At a minimum it could go to court, and there’s 7 months until Jan 20.
currency24– I am inclined to agree. Unlike Holder and Lynch, Barr has shown himself not to be President Trump’s lapdog and enabler. If he disagrees with the President and he feels it is impacting his job he says so. That is why I think something about Berman has surfaced, Barr and Berman discussed it, and Barr thought he had an agreement that Berman would resign. After that, someone convinced Berman to use it as an opportunity to embarrass the President and Barr. This is a lot of speculation and my be totally wrong but it fits what we know so far better than the repetitious howling of the TDS people who post here.
Oh, OK.
lol
yep, a lot of speculation from someone who is clearly quite biased
Steve Vladeck (UT Austin law prof):
“It’s worth not losing sight of the fact that the Attorney General of the United States out-and-out *lied* in a written statement—and in a context in which there could have been little question to him that Berman would publicly call him out for doing so. And he did it anyway.”
https://twitter.com/steve_vladeck/status/1274197858091220994 [tweet has Barr's written statement attached]
Vladeck has a lot of useful commentary about this. Another excerpt:
“To recap:
“1) Berman was appointed under 28 U.S.C. § 546(d).
“2) That statute contemplates that he keeps his job until a permanent successor is confirmed by the Senate.
“3) 28 U.S.C. § 541(c) says U.S. Attorneys are subject to removal by the President.
“So the statutes conflict. …
“Because Berman was appointed under 546(d), even if the President can remove him, he can only be replaced by:
“1) Someone nominated by the President & confirmed by the Senate; or
“2) Someone *else* appointed by judges under 546(d).
“Carpenito is neither of those. …
“The government certainly has a good argument [that 541(c) overrides 546(d)]. I just don’t think it’s clear beyond peradventure that 541(c) overrides 546(d). But even if it does, there’s still the pesky matter of replacing a 546(d) appointee. Absent Senate confirmation, doesn’t it have to be the judges again?”
There’s lots of discussion among law faculty and other skilled lawyers on Twitter re: the legal issues here.
As for Turley’s claim that he has “always known [Barr] to be a person of integrity and principle,” if he still believes that, he’s not paying attention.
BTW, it’s striking that Turley is silent about the news last night re: BuzzFeed/EPIC’s lawsuit against the DOJ for a less-redacted version of the Mueller Report. The DOJ released a less-redacted version last night, and it reveals significant new info about Roger Stone and Wikileaks and about Trump lying to Mueller.
Thanks, not a slam dunk and administration may have just kicked a hornet’s nest.
By the way, the named permanent replacement has zero criminal or litigation experience.
Obama had less and yet ….
Cundy’s on a roll this morning.
She’s petty…and jealous.
And the Obama’s estate is next to the ocean! You remember the ocean!!!??? The one that’s going to rise up in 9 years and flood the earth. Yeah. That one.🛶
The entire thing stinks. Shame on Trump for nominating someone who’s unqualified (though clearly not a first for that).
It’s also another example of Barr trying to save Trump from exerting corrupt power, as with the Motion to Dismiss the Flynn case, where Barr is trying to save Trump from pardoning Flynn.
Top prosecutor, the office holder, is usually administrative.
‘a move late on a Friday night…’
That’s the lawyer’s favorite moment to serve something. It ruins the recipient’s weekend, most people who might be needed don’t work weekends, and it comes at that time of the week when a person is the most tired and discombuberated. So, Turley, why are you surprised.
This exposing of what a scumbag lap dog Barr is could not have been done with more bias. Turley, your photo must now have you wearing a red hat.
Barr imminent resignation!
Trump had his first warning when Barr had to go public to complain that Trump’s meddlesome tweeting was making his, Barr’s, job impossible.
Trump acolytes repeatedly claim that he is naturally clever politically. That patently is crap
He is continually being rescued from his stupid outbursts by his staff, like cleaning up behind a wailing baby.
Maybe Barr will appoint George to be the USASDNY!
The article says the person has beened “canned”. Is he completely out of a government job or removed from that role and put in another position? Canned would have him in a metal can with a metal seal at top and bottom. Then there is “bottled”.
‘Canned’ brings to mind the artist Piero Mansoni, who in 1961 canned his own sh*%. The 90 cans of sh*% have never been verified as containing the artist’s product as opening one would ruin the entire work. This brings to mind Trump and Barr; and a little Turley. It is impossible to verify, for the most part, if the content of what any of these mutts say is sh*% or whatever, as it is impossible to open up any can as that would ruin the entire legal structure. Legally it is what is said the most convincingly. Trump and his lapdog Barr simply put it that it is what I say it is. This leaves it to the obfuscating legal geniuses to toss around.
Barr is a political hack who is Trumps Roy Cohn If Berman has done an exemplary job why does he need replacement No Barr is corrupt as hell and Mr Turley is a quisling
Friday night? Sounds like an emergency.
Nothing in Berman’s statement suggests he believes his termination is improperly motivated. He says he will step down as soon as the Senate confirms his replacement. It’s my understanding he has no authority to resist the AG.
I would not be surprised to learn that Barr canned him because he has failed to aggressively investigate and bring to justice the Antifa terrorists who destroyed parts of NYC.
“It’s my understanding [Berman] has no authority to resist the AG. ”
That’s false. Legally, Barr can’t fire Berman.
Steve Vladeck (UT Austin law prof):
“Here’s a helpful discussion from a 2001 @MinnesotaLawRev article of DOJ’s inconsistent positions as to how a U.S. Attorney appointed by a court under 28 U.S.C. § 546(d) can be replaced without a Senate-confirmed successor: https://t.co/sLCRatSf9s (H/T: @marty_lederman.)”
https://twitter.com/steve_vladeck/status/1274296823360958464 [page of that law review article attached to the tweet]
“That’s false. Legally, Barr can’t fire Berman.”
This guy doesn’t know the difference between opinion and fact. A law professor redered his opinion and CTHD converted that opinion into fact. During the impeachment trial we saw other law professors render their opinions that in some cases were laughable.
Though in this case CTHD’s opinion is based on a law professors opinion (there are conflicts in the law) not a fact as he states, most of the time CTHD is spewing BS and errant facts that do not exist.
Scott– That, too, makes sense and fits with his being offered a different job, one he can do.
Barr making sure investigations go away just as his client ordered. But wait isn’t the USA supposed to be his client? I guess his living up to his promise to do anything for Trump instead of his oath of office.
“The move late on a Friday night was itself a serious mistake”
Heh, mistake? The ever useful idiot Mr. Turley.
He’s a political appointee and an arrogant one. He’s obviously a member of the Swamp and out to get the POTUS. Any investigation by him is tainted now. Fire him.
Looks like Trump took our advice:
https://www.google.com/amp/s/abcnews.go.com/amp/Politics/president-donald-trump-fires-us-attorney-southern-district/story%3fid=71357518
I was just about to post that Trump had better finally built some workable plans & found reliable people to implement the plans.
Trump using his national security authority seems to me the way to go. House arrest for tyrants for now, mandatory paper ballots with photo ID because of “Foreign Meddle in US elections” seems like a no brainer along with shutting down the border, etc….
Just do & make his/our/US’s enemies howl.
He has to get control of of our out of control administrative state.
https://usawatchdog.com/dont-resist-arrest-global-reset-coming-no-real-recovery/
That SWAMP ain’t easy to DRAIN 🐍 🐍 🐍
Bleach eating your brains.
From the article you supplied:
“Berman’s tenure included several politically sensitive investigations, like the case against Trump’s former personal attorney, Cohen. He was named the interim replacement for former U.S. attorney Preet Bharara in 2018 by then-Attorney General Jeff Sessions.
“Trump failed to nominate him or any other permanent replacement and, after 120 days, the district court appointed Berman to the job.” – ABC article
Mesblo says, ‘He’s…out to get the POTUS.”
Sure he is.
But carry on mesblo.., oh “arrogant one.”
Sure, it raises legitimate questions. But let’s not pretend that all investigations into Trump and his associates have been legitimate. Based on how many illegitimate many investigations into Trump and is associates there have been so far, I no longer have the presumption that these officials are simply trying to do the right thing.
There is clearly more here than meets the eye. If his investigation was unlawfully hindered, he needs to speak up but other than that, he should empty his desk and vacate the premises.
Berman has no right to demand conditions under which he will leave. He doesn’t get to dictate who replaces him or when.
It seems that like Bharara, who turned out to be a partisan operative, Berman is pursuing a partisan agenda. His response alone is clear insubordination.
As for the IG, professor Turley, they work for the Executive, not the Legislature and any law seeking to restrict the Executive in its ability to administer the offices of the IG, has to be un-Constitutional.
If the Congress is suspicious of any of this, they are totally justified in holding oversight hearings.
Your claim that “Berman has no right to demand conditions under which he will leave” is false. Berman has a right to say that he will not resign. He cannot legally be forced to resign. He can legally be fired in some circumstances and not others.
Asking someone to resign is a polite way of letting them know they are finished. A smart person takes it ‘to spend more time with his family’.
I suspect Barr is astonished at this insubordination. I would be and my next step would not be polite; in fact it would be downright rude.
Barr cannot legally fire Berman, as Berman was appointed under 28 USC 546(d).
It’s unclear whether Trump can fire Berman under these circumstances (there are conflicting statutes), but either way, Barr isn’t Trump. And even if Trump wants to fire Berman and the courts decide that he can do so under 28 USC 541(c), Berman continues to serve until there’s either a Senate-confirmed replacement or another replacement by the court, due to his appt. under 28 USC 546(d).
Berman doesn’t want to resign (which is his right), and he’s forcing Trump to abide by the law in replacing him. I doubt Berman gives a f*ck whether you and others consider his choice “insubordination.”
How to create something to post on the blog. Mix a bit of fact with lies and stir with opinion. This can be done by any number of aliases. Jan F. did it, Anon does it, btb does it and CTHD does it. What we get is BS.
@CTHD As usual, a distracting focus on semantics rather than the actual comment. The intent of the comment was clear.
This reply to you became unthreaded: https://jonathanturley.org/2020/06/20/barr-v-berman-manhattan-u-s-attorney-refuses-to-leave-office-after-announced-replacement/comment-page-2/#comment-1968895