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.”
Rep. Bill Pascrell, Jr. (NJ-9): “Right on cue, the removal of the top federal prosecutor for Manhattan on a Friday night is ringing alarm bells. I’ve been calling for bill barr’s impeachment + the revocation of his law licenses since last year for good reason: barr is out of control. #ImpeachBarr #DisbarBarr”
https://twitter.com/BillPascrell/status/1274169707160113152 [tweet has formal letter from Pascrell to the DC Bar re: Barr attached]
Rep. Nadler has invited Berman to testify before the HJC. I hope Berman agrees.
Sen. Warren: “This is a naked abuse of power. I’ve already called for AG William Barr to resign & for Congress to impeach him. Congress should pass my bill now to defund Barr’s authority to interfere with matters related to Trump, his family, & his campaign.”
The naked abuse of power is the attempt by Democrats to change the results of the 2016 election while weaponizing the most important bureaucracies such as the FBI. Everything flows from that attempt which keeps failing. It starts at the top of the Obama Administration where Obama did things at the end of his Presidency with the sole intention of causing harm to the next President’s agenda.
KEY PASSAGE FROM COLUMN:
“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”.
Here Professor Turley claims he can’t believe William Barr is nothing more than a stooge for Donald Trump. How disengenous! This is part of a pattern that includes Michael Flynn and Roger Stone. If Trump doesn’t like an investigation, he tells Barr to make it go away.
The Durham Inquiry and the Senate’s upcoming attempt to whitewash the Russia Probe are all part of the same pattern. Yet Turley can’t believe it’s really that political! What a charade!
“If Trump doesn’t like an investigation, he tells Barr to make it go away.”
Okay, go ahead and link the secret recordings of Trump saying this…
Just unredacted from the Mueller Report – who redacted this and why?
“Donald Trump was told in advance that Wikileaks would be releasing documents embarrassing to the Clinton campaign and subsequently informed advisors that he expected more releases would be coming, according to newly unredacted portions of special counsel Robert Mueller’s report into Russia’s interference in the 2016 election.
In July 2016, political consultant Roger Stone told Trump as well as several campaign advisors that he had spoken with Julian Assange and that WikiLeaks would be publishing the documents in a matter of days. Stone told the then-candidate via speakerphone that he “did not know what the content of the materials was,” according to the newly unveiled portions of the report, and Trump responded “oh good, alright” upon hearing the news. WikiLeaks published a trove of some 20,000 emails Russians hacked from the Democratic National Committee on July 22 of that year….
The new revelations are the strongest indication to date that Trump and his closest advisors were aware of outside efforts to hurt Clinton’s electoral chances, and that Stone played a direct role in communicating that situation to the Trump campaign. Trump has publicly denied being aware of any information being relayed between WikiLeaks and his advisors.
In written testimony to Mueller’s team in November 2018, Trump denied being aware of any communications between Stone, Manafort, Gates, or Donald Trump Jr and WikiLeaks or Assange. Yet according to the newly public portions of the Special Counsel’s report, “Trump knew that Manafort and Gates had asked Stone to find out what other damaging information about Clinton WikiLeaks possessed, and that Stone’s claimed connection to WikiLeaks was common knowledge within the Campaign.”
…Large portions of Mueller’s 448-report that relate to Stone have been hidden behind vast swaths of black ink since it was released more than a year ago. The veil of secrecy was lifted by the Justice Department Friday in response to a lawsuit filed by BuzzFeed News and the nonprofit Electronic Privacy Information Center (EPIC) that challenged the legality of the redactions….
….In a scathing 23-page opinion released in March, (Judge) Walton said Barr’s public characterization of the Mueller report “failed to to provide a thorough representation of the findings.” Walton questioned whether Barr’s “intent was to create a one-sided narrative” about the report and a “calculated attempt to influence public discourse” in favor of President Trump “despite certain findings in the redacted version of the Mueller Report to the contrary.””
https://www.buzzfeednews.com/article/jasonleopold/roger-stone-warned-trump-wikileaks-clinton-dump?bftwnews&utm_term=4ldqpgc#4ldqpgc
Re: “why,” if you compare the older version of the Mueller Report and the newly less-redacted version, you’ll be able to see what reason was previously given for redaction (as redactions are marked with the reasons). A common reason is “HOM,” or “harm to ongoing matter,” which is what they use for investigations that are ongoing. When the report was first released, Stone hadn’t yet been prosecuted, and there were some things they didn’t want to reveal yet. That was the basis for the BuzzFeed/EPIC lawsuit — that there was no longer harm to an ongoing matter for some of the previously-redacted sections. In terms of “who,” I’m guessing that it was someone in the Special Counsel’s office, but I’m not certain.
Again, semantics is the study of meaning. If it’s “distracting” to you to focus on what the relevant laws and words actually mean, too bad.
Berman doesn’t want to resign and cannot be forced to resign. Barr cannot fire him, as Berman was appointed under 546(d). Trump may be able to fire him (it’s legally unclear, as there are conflicting statutes), but Barr isn’t Trump, and even if Trump can fire Berman, Berman will continue to serve until “1) Someone nominated by the President & confirmed by the Senate; or 2) Someone *else* appointed by judges under 546(d)” (quoting law prof Steve Vladeck).
Do you care what the relevant laws say and mean?
This was supposed to have been posted in reply to https://jonathanturley.org/2020/06/20/barr-v-berman-manhattan-u-s-attorney-refuses-to-leave-office-after-announced-replacement/comment-page-1/#comment-1968889
Apparently Firefox and WordPress don’t always sync properly.
“Apparently Firefox and WordPress don’t always sync properly.”
Neither do your facts.
Do you care about the difference between opinion and fact?
A fantastic video on BLM. Did things change over the years? No. One has to ask themselves why? Democrats like it and they like the money. Some wonder where all that money goes? Does anyone think it goes to street demonstrations?
The only ones to kill anyone in the wake of the Floyd murder are white supremacists. Underwood is black, the accused white.
“An Air Force sergeant linked to an anti-government movement was charged with murder and attempted murder on Tuesday in the shooting death of a federal security officer outside a courthouse in Oakland, Calif., last month.
The sergeant had expressed his allegiance to the so-called boogaloo movement by writing with his own blood on the hood of a white Toyota Camry and had used the recent protests against racial injustice as a cover to attack law enforcement, according to the F.B.I.
Staff Sgt. Steven Carrillo, 32, is accused of firing an assault rifle from the open back door of a moving vehicle and gunning down the federal officer, according to the criminal complaint.
The driver of the van, Robert Alvin Justus Jr., 30, who had met Sergeant Carrillo on Facebook, was charged with aiding and abetting the murder of Dave Patrick Underwood, 53, the officer killed in the shooting, the complaint said. Both men were also charged with the attempted murder of a second officer who was gravely wounded…”
Ask David Dorn (77), Barry Perkins (29): David McAtee (53): Dorian Murrell (18): Italia Kelly (22): Marquis M. Tousant (23): Calvin L. Horton Jr. (43): James Scurlock (22): Victor Cazares (27): Patrick Underwood (53): Jorge Gomez (25): Chris Beaty (38) and: Marvin Francois (50):
Ask those that have not yet been named. Ask the dead and injured policemen.
White supremecists fit in the same category as BLM and Antifa. When one knowingly acts in a violent fashion where it is recognized that the action can cause harm or death those people are responsible for that harm and death.
A cop killer is what BLM looks up to.
Allan…….Thank you!
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, so whatever “rude” steps you advocate, it’s not going to affect the fact that Berman will continue to serve until he either chooses to resign, is replaced by a Senate-confirmed nominee, or is replaced by the court who appointed him.
I would want Trump to fire him and have Barr order the US Marshals to drag him out of the building in disgrace in front of live Fox and OAN cameras. Then I would have them let go on the sidewalk and when he re-enters the building arrest him for trespass, on camera. Then I would investigate what this arrogant, insubordinate turd has been up to.
Dream away, people often have bizarre dreams.
Even if Trump fired Berman, it would not prevent Berman from continuing to work until there’s a legal replacement. An acting attorney doesn’t qualify, and Clayton hasn’t been approved by the Senate yet.
He serves at the pleasure of the president. No reason needed for him to be fired and escorted from the building.
No, technically he does not. There are conflicting statue on this because he is an interim appointee. Unless Berman relents, this could take legal wrangling.
He could do his legal wrangling in chains.
“Scandals involving Democrats in two races could damage party’s chances of taking the Senate
Two Democratic Senate candidates, Chris Janicek in Nebraska and former Colorado Gov. John Hickenlooper, are engulfed in controversy.”
Carrie Johnson (@johnson_carrie, NPR):
“NEW & important: Judiciary Chair @LindseyGrahamSC says he intends to follow the blue slip policy for US Attorney nominations in the case of Jay Clayton, meaning NY’s two Democratic senators will have their say on the nominee. ‘As to processing U.S. Attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination. As chairman, I have honored that policy and will continue to do so.'”
Clayton has no experience as a federal prosecutor, which means he’s not a great pick, and I won’t be surprised if the NY Senators choose not to blue slip him. Ashley Schapitl notes “This is significant. Berman was given the interim appointment and later installed by the court, circumventing Senate confirmation, because Gillibrand would not have returned a blue slip on him.”
Well, I am going to presume Barr has a good reason until otherwise proven. Something must be a little off with Berman if he will not quit as requested and then preach to everybody what he plans to do. Sheeesh, dude, just vacate the office! Hey, that makes me think of an Irish Poem!
A Bermanent Vacation???
An Irish Poem by Squeeky Fromm
There once was a lawyer named Berman,
Who was hard to get rid of as vermin!
When Barr said, “good-bye!”
He replied “GFY!!!”
And then launched right into a sermon!
Squeeky Fromm
Girl Reporter
“Something must be a little off with Berman if he will not quit as requested ”
So I have heard based on other actions taking place at the same time.
Good one, Squeeky! (One of these days we simply must get together for coffee or adult beverage!)
Thank you Allan and FFS! I am glad you liked it!
Squeeky Fromm
Girl Reporter
The DOJ is “separate” from the White House? Since when? The DOJ is part of the Executive Branch and is thus part of “the White House.” Surely, Turley knows this. The Constitution does not allow “independent” branches.
“The DOJ is part of the Executive Branch”
Certainly this is correct, but virtually every federal prosecutor to ever live…and that’s on both sides of the aisle…has vehemently portrayed themselves as fiercely independent, and then loudly proclaimed that they would resign their position before being told how to do their job by the White House.
“The Constitution does not allow independent branches.”
True, and that is why the CFPB is unlawful, but with Roberts amending the Constitution on his own who knows what will happen.
It should come to no surprise that Trump’s personal lawyer and consigliere who’s only mission it seems is to normalize abject criminality is at it again. Trump and Barr’s obvious attempt to dismantle the justice system for the personal benefit of Trump is again, no surprise. The IG offices, US attorneys and any other check and balances have had a target on their backs from Trump from day one. And of course it will come to no surprise from anyone that reads Turley, that the cult will say the President has the right to fire anybody he wants, and what-about Obama, Hillary and the deep state that’s out to get Trump. And this will go on and on from the Trump cult all day, again, no surprise. What does surprise me, is they think they are winning. When it’s the nation that’s losing.
There is an OLC memo from 1979 or something that says Berman can be fired.
CTHD’s earlier statement: “Berman was appointed by judges under 28 U.S.C. §546(d), and Barr cannot legally fire him.”
It sounds like CTHD got a call to modify that previous comment. “He can legally be fired in some circumstances and not others.”
He’s an executive branch employee, not a judicial branch employee. He can be fired.
Keep in mind, he was never confirmed by Congress. He is an interim appointment.
Berman was appointed under 28 USC §546(d). Berman cannot be fired by Barr, as 546(d) doesn’t enable that. As I pointed out earlier from law prof Steve Vladeck, “28 U.S.C. § 541(c) says U.S. Attorneys are subject to removal by the President. So the statutes [541(c) and 546(d)] conflict.” A court will need to determine whether Trump can legally fire Berman, but even if he can, Berman 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)” (quoting Vladeck again).
Again this guy cannot distinguish fact from opinion. Mix a bit of fact with lies and stir with opinion. That is the garbage this guy posts.
Where JT wrote, “President Trump has failed to respect the separation of the White House from Justice Department investigations” it would have been more appropriate to have added “Like President Obama, President Trump has failed…” assuming that JT doesn’t hold the double standards that are common currency nowadays. Also, JT’s sentence that says “Not only is the pattern suspicious but the timing and manner of this action is deeply concerning..,” exactly mirrors what happened in terms of a pattern, timing, and manner under Obama.
Are you going to specify what Obama did that you believe “exactly mirrors” Trump’s actions? Absent actual evidence, there’s no reason to take your claim as anything other than anti-Obama sniping. But with actual evidence, you can convince people that your claim is accurate.
Commit, I don’t really care what you think and have no need to convince you or anyone else of any “claim.”
“As with the Mueller investigation, Barr did not move to hamper such investigations or prosecutions. ”
Turley does us a great disservice in misrepresenting the facts. He cut the investigation short and gave his statement that totally lied about what was in the report.
Turley has adapted the “Bill Barr Summary” rule.
Funny how the entire Mueller Report was released though some redactions had to exists. I’m still waiting for all of Hillary’s mail, the FBI’s reports and the last transcript. Cementia is real among those that can’t seem to get things straight.
There is some good news about judges
CBS cans Judge Judy….Case closed: Judge Judy is ending her blockbuster syndicated series “Judge Judy” after 25 seasons.
CBS Television Distribution will continue to offer “Judge Judy” repeats to stations, while Sheindlin told host Ellen DeGeneres that she plans to launch a new show, “Judy Justice.”
As one of the highest-paid stars on television, clocking $47 million a year for “Judge Judy,” the end of the show represents a major cost savings for ViacomCBS.
President Trump has failed to respect the separation of the White House from Justice Department investigations,
There are times when I think you have to be the most clueless person in Washington.
Not sure why Turley is given so much leeway in conservative circles as he is clearly partisan in his perspective. His whole response is predicated upon this false perception of reality,,,, Turley is no friend of Nationalism or conservatism…he is ..at the end of the day…a liberal hack
Turley is not liberal.
This guy Commit always is so sure of himself but when asked to produce proof fails to do so and runs away to repeat what he could never prove. He is not much different than another on this blog that does the same routine. Both (or one) do not adhere to the truth.
If I remember correctly Turley as a witness to the impeachment trial declared he was a Democrat and voted for Hillary.
Of course one can find this quote as well from Turley “I don’t know where the idea came from that I am some kind of a right-wing extremist. I have always been a liberal Democrat and I voted for Bill Clinton”
Turley is a Liberal and I believe admittedly so. His concerns revolve around freedom of speech something that should be in the Liberal domain as well as the Conservative domain but today the Liberal forces are limiting free speech. Liberals can’t stand it that one of their own looks at the law as independent from his ideology.
My guess is that something has been exposed in Durham`s investigation that led to this “sudden” decision. Word is something big is coming in the next 3 weeks. As intelligent as Turley is I would think he could put 2 and 2 together.
Interesting thought, but why offer him a different position in the government? Not disagreeing with you, just wondering. As for the rest, I don’t there needs to be a reason for firing him. Get rid of him.
Maybe he needs time to use Hillary’s cloth on his computers. US Marshal should escort him from the building now.
Berman has never been confirmed by the Senate and holds the position on an acting basis.
U.S. Patient 6,950,786. 11/2016. Trump. “”You’re Fired.”