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.”