WASHINGTON — When Audrey Strauss became the acting US attorney in Manhattan after the dramatic showdown between her boss Geoffrey Berman and Attorney General Bill Barr last weekend, she became the seventh woman to hold one of the 93 US attorney posts nationwide.
Strauss had been Berman’s top deputy, but she wasn’t the Trump administration’s first, or even second, choice to replace him. According to Barr’s public statements, Trump planned to nominate Jay Clayton, the head of the US Securities and Exchange Commission. Barr also announced that Craig Carpenito, the US attorney for New Jersey, would temporarily replace Berman, but scuttled that plan after Berman refused to voluntarily step down.
The fight over Berman’s seat underscores the Trump administration’s practice of overwhelmingly placing white men in charge of federal prosecutor offices. Berman, Clayton, and Carpenito are white. Based on publicly available photographs and biographical information, BuzzFeed News identified 7 of 93 US attorneys are BIPOC, including two Black US attorneys: Louis Franklin Sr. in Alabama and Kenji Price in Hawaii, who is also Asian American.
US attorneys generally don’t make day-to-day decisions about who to prosecute, but set priorities and policies for their offices. They can play a hands-on role in high-profile investigations — the US attorney in Minnesota, Erica MacDonald, is involved in the Justice Department’s federal civil rights probe into the death of George Floyd, a Black man who was killed when a white police officer in Minneapolis used a knee chokehold on him.
Floyd’s death in May — and the anti–racism and police brutality protests that followed — have trained attention on how Black men and women are treated by law enforcement and within the broader criminal justice system. Racial injustice and discrimination happen “more easily when Black people don’t have a seat at senior leadership tables,” said Joyce Vance, a former US attorney in Alabama during the Obama administration.
“It’s not just policing. It’s across the criminal justice system. It’s policing, prosecutive decisions, it’s decisions about who gets a plea bargain and what does the deal look like, it’s a question of sentencing, and, perhaps most importantly of all, it involves prisons and incarceration,” Vance said.
Asked for comment, Justice Department spokesperson Wyn Hornbuckle directed BuzzFeed News to an updated Justice Department Equal Employment Opportunity Policy that Barr signed after he became attorney general in February 2019.
“We welcome employees from diverse backgrounds to apply their skills and talents toward advancing our mission to serve the country, achieve justice, and promote the rule of law,” the policy states.
There are 93 US attorneys who oversee 94 US attorney offices (one official oversees the offices for Guam and the Northern Mariana Islands). In 2017, then-attorney general Jeff Sessions asked for resignations from the remaining Obama appointees who were still in office, clearing these seats for Trump to fill.
As of this month, 81 seats are filled by US attorneys nominated by Trump and confirmed by the Senate. Most of the 12 remaining posts are held by officials who were put in place by Sessions or Barr in lieu of a presidential nominee, and a few are held by second-in-commands like Strauss who under federal law can automatically fill a vacancy absent action by the president or attorney general.
The percentage of US attorneys who are women or BIPOC doesn’t match the gender and racial makeup of staff within US attorney offices. According to internal Justice Department data from 2019 obtained by BuzzFeed News, 13% of all employees in US attorney offices nationwide are Black and 70% are white; those numbers include attorneys as well as other staff. The data show that 58% of US attorney office employees are women.
DOJ leadership has faced scrutiny about the lack of diversity in senior positions before. In February 2019, BuzzFeed News reported that the DOJ Gender Equality Network, or DOJ GEN, an affinity group representing nearly 400 employees and contractors, sent a letter to division heads noting the lack of women holding top jobs in the main litigating divisions of the department; the group didn’t address demographics in US attorney offices.
DOJ spokesperson Kerri Kupec said in a statement to BuzzFeed News at the time that the department was committed to “fostering inclusive work environments that afford men and women from diverse backgrounds the equal opportunity to grow in their careers and support the Justice mission.”
Steven Wasserman, an assistant US attorney in Washington, DC, and vice president of policy for the National Association of Assistant United States Attorneys, said the primary concern of career attorneys in US attorney offices is that political appointees are qualified, but that isn’t inconsistent with also wanting diversity. He said it matters “to have different perspectives on how we do our jobs and how we prioritize our enforcement obligations, the current situation in the country being a prime example.”
“Ultimately, we believe that there are plenty of qualified female candidates and minority candidates out there to fill these positions,” Wasserman said, speaking in his capacity as an association leader and not as a representative of the US attorney’s office.
When Trump first began to fill US attorney seats in 2017, his early nominees were nearly all white men. Out of Trump’s first 42 nominees, just one was a woman — Jessie Liu, who became the US attorney for the District of Columbia. Former US attorneys and civil rights advocates criticized Trump’s picks at the time.
When Liu left the DC office in January for a position in the Treasury Department, Barr appointed Timothy Shea, who had worked for Barr at DOJ headquarters, to fill the job on an interim basis. In May, the Justice Department announced that Trump would nominate Justin Herdman, a US attorney in Ohio, to lead the DC office. Shea moved over to the Drug Enforcement Administration and was replaced pending Herdman’s nomination by the top deputy in the US attorney’s office, Michael Sherwin. Shea, Herdman, and Sherwin are all white.
In May, Barr announced that he’d appointed Stephen Cox to serve as the interim US attorney for the Eastern District of Texas. Cox, who is white, had been a senior official in the office of the associate attorney general before the appointment.
“It is concerning to see so little diversity among U.S. Attorneys, especially as time goes on because we are seeing DOJ install handpicked acting U.S. attorneys who are not Senate-confirmed,” Barbara McQuade, who served as a US attorney in Michigan during the Obama administration, told BuzzFeed News in an email. “When the Senate is providing advice and consent, then blame for the lack of diversity can be spread around, but when the AG himself is choosing, then the lack of diversity can be laid squarely at his feet.”
Liu isn’t the only woman confirmed as a US attorney under Trump who was replaced by a man after leaving office. US District Judge Sherri Lydon had served as US attorney in South Carolina until Trump nominated her for the federal bench. The US attorney who replaced Lydon, Peter McCoy, is white.
As the acting US attorney in Manhattan, Strauss can lead the office for up to 210 days under the Federal Vacancies Reform Act. Federal law also allows Barr to appoint an interim US attorney for up to 120 days. If a temporary appointment expires, the federal district court for that US attorney district can appoint a US attorney to serve. As of Friday afternoon, the White House had not formally submitted Clayton’s nomination to the Senate.
On the evening of June 19, Barr announced that Berman was stepping down. Two hours later, in an extraordinary public rebuke, Berman released a statement saying it wasn’t true, and he did not plan to voluntarily leave the office. The next day, Barr said that Trump had fired Berman, although Trump told reporters that he “wasn’t involved” in what was happening. Berman finally ended the standoff by releasing a statement saying he was “leaving.” He ended with glowing praise for Strauss.
Strauss “is the smartest, most principled, and effective lawyer with whom I have ever had the privilege of working,” Berman said. “And I know that under her leadership, this Office’s unparalleled AUSAs, investigators, paralegals, and staff will continue to safeguard the Southern District’s enduring tradition of integrity and independence.”
Positions at the very top of the Justice Department have largely been filled by white men under Trump. Rachel Brand originally served as associate attorney general, the number three official in the department. When Brand left in early 2018, Jesse Panuccio, who is a white man, became the acting associate attorney general. Trump never formally nominated anyone for the job; the office is now run by Principal Deputy Associate Attorney General Claire Murray.
Trump and Barr had planned to nominate Liu for the number three position, but she withdrew from consideration after Republican senators objected, according to the Washington Post.
When Liu stepped down as US attorney in January, she moved over to the Treasury Department while she waited for the Senate to act on her nomination to a senior Treasury post. But Trump pulled that nomination in February and Liu then left the administration altogether; the Washington Post reported that a conservative political operative, among others, had complained about Liu’s handling of the US attorney’s office, including cases related to former special counsel Robert Mueller’s investigation.
An attorney at the Justice Department who requested anonymity to speak about senior leadership told BuzzFeed News in a text message this week that the small number of women serving as US attorneys at the moment was “unacceptable.”
“Seven, wow,” the attorney wrote. “I think that having women comprise less than 10 percent of your workforce in 2020 is unacceptable for any employer, but especially the federal government.”