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Trump Tried To Quietly Replace A Prosecutor Taking Aim At His Allies. It’s Not The First Time That Backfired.

The nearly daylong standoff between Attorney General Bill Barr and US attorney Geoffrey Berman marked the second time now that Trump has failed when trying to get a US attorney in Manhattan to quietly step aside.

Last updated on June 20, 2020, at 6:58 p.m. ET

Posted on June 20, 2020, at 12:51 p.m. ET

US Attorney Geoffre Berman
Eduardo Munoz / Reuters

Geoffrey Berman

WASHINGTON — Manhattan US Attorney Geoffrey Berman said Saturday evening that he will leave his position "effective immediately," ending a dramatic standoff with Attorney General Bill Barr, who first announced that Berman was "stepping down" Friday, then later said President Donald Trump had fired him for refusing to leave his post.

Berman said in a statement that he had decided to step down following Barr's "decision to respect the normal operation of law and have Deputy US Attorney Audrey Strauss become Acting US Attorney."

"I know that under her leadership, the Office's unparalleled AUSAs, investigators, paralegals, and staff will continue to safeguard the Southern District's enduring tradition of integrity and independence," he said.

The nearly daylong standoff marked the second time now that Trump has failed when trying to get a US attorney in Manhattan to quietly step aside. It lasted just long enough for the House Judiciary Committee to launch an investigation and for top Democrats in the Senate to demand probes by the Justice Department's inspector general and the Senate Judiciary Committee.

Late Friday night, Barr announced Trump had chosen a new nominee to serve as US attorney for the Southern District of New York, one of the most powerful federal prosecutor offices in the country. Berman was “stepping down,” Barr said, and he thanked Berman for his “tenacity and savvy” in leading the office since 2018.

This was all apparently news to Berman. Two hours after Barr’s statement went out, the Twitter account for the US attorney’s office posted a statement from Berman saying he wasn’t going anywhere.

“I learned in a press release from the Attorney General 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,” Berman said. “I will step down when a presidentially appointed nominee is confirmed by the Senate.”

Berman had been serving as US attorney since he was appointed on an “interim” basis by then–attorney general Jeff Sessions in January 2018, and by court appointment since April 2018. Barr’s statement on Friday did not specify why Trump decided to replace Berman now. His office is prosecuting former associates of Trump ally Rudy Giuliani for campaign finance violations and is reportedly investigating Giuliani’s activities as well. The office also subpoenaed the committee that managed Trump’s inauguration festivities in 2016 and has brought charges out of that investigation.

On Saturday, the Justice Department released a letter that Barr had sent notifying Berman that Trump had officially fired him at Barr's request, rejecting any argument by Berman that his judicial appointment meant he couldn't be removed from office until there was a Senate-confirmed successor. Barr wrote that he was "surprised and quite disappointed" by Berman's statement on Friday night, and referenced earlier discussions he said they had had about Berman staying on in the Justice Department or moving to another role in the administration.

"Unfortunately, with your statement of last night, you have chosen public spectacle over public service," Barr wrote. "Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so."

Speaking to reporters on Saturday, Trump said the decision to remove Berman was up to Barr and that he was "not involved."

In his statement on Friday night, Berman had concluded by saying that he intended "to ensure that this Office's important cases continue unimpeded." Barr on Saturday bristled at what he saw as a suggestion by Berman that he needed to stay to make sure cases were appropriately handled.

"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," Barr wrote, adding that if any supervisors in New York had concerns about "improper interference" with a case, they should submit a report to the department's inspector general.

The late-night back-and-forth over Berman’s seat echoed the Friday in March 2017 when Sessions and Trump ousted nearly all of the remaining Obama-appointed US attorneys nationwide. Most of the US attorneys agreed to submit their resignations at Sessions’ request, but not Preet Bharara, the US attorney in Manhattan at the time. The next day, Bharara tweeted that he had refused to resign, and forced the Trump administration to fire him.

The fight over who runs the Manhattan US attorney’s office was the latest legal mess to come out of the Trump administration’s pattern of shattering norms in how the president and administration officials fill high-level executive branch jobs. And it’s another complication of Trump’s decision not to fill vacancies with Senate-confirmed appointees.

It’s not clear what would have happened if Berman refused to leave. The fight could have ended up in court, which would lead to a rare public airing of intra–Justice Department politics and grievances. But it was likely to create confusion about the legitimacy of actions taken by federal prosecutors in Manhattan acting under Berman’s authority, had he not stepped down Saturday.

Trump never installed a Senate-confirmed US attorney in New York after ousting Bharara in 2017, leading to the murky position that Berman was in.

Had the dispute over Berman’s job landed in court, it wouldn’t have been the first time Trump had to defend his appointments. In March 2020, a federal judge in Washington, DC, ruled that Trump’s appointment of Ken Cuccinelli as acting head of US Citizenship and Immigration Services was unlawful, and the judge blocked several immigration policies that Cuccinelli had signed off on.

Senate Democrats and other groups took the Trump administration to court over Trump’s appointment of Matthew Whitaker to serve as acting attorney general after Trump fired Jeff Sessions. But Barr was confirmed and Whitaker left before a court could rule on the merits of whether Whitaker’s appointment — which bucked the standard process for temporarily filling a cabinet-level vacancy — was lawful.

Barr initially said Friday that Trump would nominate Jay Clayton, the current head of the US Securities and Exchange Commission, to take over for Berman. Clayton has never served as a federal prosecutor, which is unusual for a US attorney nominee. Before Clayton's confirmation, the US attorney for New Jersey, Craig Carpenito, would temporarily lead the Southern District starting July 3, Barr said — Carpenito, like Berman, was not confirmed by the Senate and has been serving by court appointment since April 2018.

In Barr's letter to Berman on Saturday, though, Barr said that Strauss, the deputy US attorney in New York, would take over as acting US attorney now that Berman had been fired by Trump. Notably, one of the jobs that Barr said he had discussed with Berman was taking over for Clayton as chair of the Securities and Exchange Commission; the other position Barr said the two men discussed was head of the Justice Department's Civil Division.

Trump’s attempt to replace Berman with a US attorney of his choice was further complicated by the fact that the Senate Judiciary Committee traditionally has waited to act on US attorney nominees unless they have the backing of their home state senators; senators submit what are known as “blue slips” to signal approval. This would have potentially given the Democratic senators from New York — Senate Minority Leader Chuck Schumer and Sen. Kirsten Gillibrand — power to hold up Clayton’s nomination.

Schumer also released a statement calling on Clayton to withdraw from consideration for the US attorney post and for the Justice Department’s inspector general to investigate.

Senate Republicans have moved forward on Trump’s nominees for federal appeals court seats without blue slips over objection from Democrats who protested that it was a break in tradition, but Committee Chair Lindsey Graham released a statement on Saturday saying he would continue to honor the practice for US attorneys.

“I have not been contacted by the administration in this regard. However, I know Mr. Clayton and believe him to be a fine man and accomplished lawyer,” Graham said. “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.”

Trump never nominated a US attorney to replace Bharara. Instead, Sessions announced in January 2018 that he had appointed Berman as “interim” US attorney. Under federal law, the attorney general has the power to do this, but there are limits — an “interim” appointment expires either when a presidentially appointed official is confirmed by the Senate, or after 120 days.

If the 120-day period runs out and there’s no Senate-confirmed official, the federal district court for that US attorney office can appoint a US attorney. Federal law says that a court-appointed US attorney — like Berman — serves “until the vacancy is filled.” Meanwhile, a separate section of the US Code that lays out the process for presidentially appointed US attorneys states, “Each United States attorney is subject to removal by the President.”

Berman appeared to disagree with Barr and Trump about how these two provisions work together. Berman’s statement on Friday night made clear that he believes the president can’t remove a court-appointed US attorney, and that only a Senate-confirmed official can take his place.

Courtesy US District Court Southern District Of New York

Berman's court appointment order.

A spokesperson for the US District Court for the Southern District of New York declined to comment. The court appointed Berman as US attorney in April 2018. The appointment order from the court doesn’t say anything about who would've had the power to remove Berman in the future.

There are different rules that govern who has the power to fire political appointees at the Justice Department versus career line attorneys and senior officials. Assistant US attorneys are “subject to removal by the Attorney General” under federal law, but they’re also covered by many of the workplace protections that apply broadly to federal employees — they can bring a challenge to being fired or facing disciplinary action before the Merit Systems Protection Board, or they can file a lawsuit.

Ultimately, the power to decide how the Justice Department handles investigations and prosecutions rests with Barr and other political appointees, and they can overrule decisions made by career lawyers and officials.

When the Justice Department earlier this year decided to drop the prosecution against former Trump national security adviser Michael Flynn, the motion asking the judge to dismiss the case was signed only by the then–acting US attorney in Washington, DC, Timothy Shea, and none of the line attorneys. (The judge has yet to decide whether to grant that request.)

DC is one of the few US attorney offices that, like the Manhattan office, doesn’t have a Senate-confirmed official in charge at the moment. Trump has nominated Justin Herdman, a US attorney in Ohio, to take over; repeated leadership changes in the DC office this year have also prompted concerns about political interference.

Prosecutors have resigned or withdrawn from cases when they’ve disagreed with decisions made by senior political appointees. The prosecutors handling the case against Trump ally Roger Stone withdrew after top officials intervened to walk back a recommendation for a stiff prison sentence; one of those prosecutors, Jonathan Kravitz, resigned, and wrote in an op-ed in the Washington Post that he left because the “department had abandoned its responsibility to do justice” in Stone’s case.

The removal of a court-appointed US attorney is an unusual situation, but it’s one that the Justice Department has considered before. In 1979, the Office of Legal Counsel issued an opinion exploring the power of a president and attorney general to remove a court-appointed US attorney. The opinion concluded that a president did have the authority to remove a court-appointed US attorney, and could direct an attorney general to carry out the order.

But John Harmon, the head of the office at the time, concluded by saying it was a bad idea for the president to informally delegate such a task.

“But we do not recommend this course of action in the situation at hand, since the incumbent U.S. Attorney apparently has the backing of the district court. That court might react unfavorably to any action that does not carefully comport with the letter of the statute,” Harmon wrote.

UPDATE

Updated with information from a June 20, 2020, letter from Attorney General Bill Barr, and a statement from former US attorney Geoffrey Berman in response.

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