Berman Part 2

Originally posted on June 24, 2020

Several days ago Barr/Trump (they’re both blaming each other, sort of) fired Geoffrey Berman, the lead attorney in the Southern District of NY office. The firing didn’t go well, and no good reason for his firing has been forthcoming. I posted in it earlier and the intervening four days have given me a chance to look more closely at it.

Some history is needed. The SDNY is noted for its prominence (Manhattan) and its independence. When Trump was elected one of his first acts was to request resignation letters from all the district attorneys, including the SDNY’s attorney: Preet Bharara. Bharara declined to do so and was fired in March 2017. In January 2018 Jeffrey Sessions, then the Attorney General, appointed Berman as the U.S. attorney at SDNY. But Trump never formally submitted Berman’s name to the Senate for confirmation. After a statutory waiting period, the judges of the SDNY appointed him “permanently” in April 2018.

The law gets confusing here. Since Berman was appointed by the courts, not by Trump’s administration, there’s some thought that Trump’s administration can’t fire him. There’s other laws that say no matter, they can. When Barr put out the false announcement of Berman’s resignation Berman came back quite strongly denying that he had resigned. I’m guessing that Barr’s plan was to get Berman to go peacefully, even though it isn’t clear why he thought Berman would. The two of them had earlier that day discussed Berman getting a “promotion” to some assistant/associate deputy job, and maybe Barr thought they had reached an agreement. Apparently they hadn’t.

Also part of Barr’s plan was to temporarily replace Berman with Craig Carpenito, the United States Attorney in New Jersey, will serve as acting US attorney in New York, apparently to be followed by the president nominating Jay Clayton to succeed Berman. Clayton is currently the SEC Chairman but has never served as a prosecutor.

There’s lots to speculate about here. The original Barr message was issued late on Friday, the traditional time to announce stuff you want the public to not notice. Eventually, on Saturday, Berman announced he would in fact step down.

But this is where Barr’s plan seems to have gone off the rails. Barr’s chosen temporary replacement, Carpentino, is not moving to SDNY. Instead, Berman’s current deputy, Audrey Strauss, will serve as interim head of SDNY. Strauss is widely respected, was recruited by Berman, and may be even more independent than Berman, who was a registered republican and donated to Trump’s campaign. Strauss is a registered democrat and has contributed to a number of democratic candidates.

Perhaps even worse, she serves until Clayton is confirmed by the Senate. Lindsay Graham, the chairman of the judiciary committee and a Trump acolyte, has indicated that he will let New York’s senators exercise their traditional prerogative of vetoing Clayton’s nomination. They, democrats Schumer and Gillibrand, have lost no time doing so.

So whatever Barr was intending, it didn’t turn out that way. Berman must still have had some leverage, even after being fired. I’m guessing that Berman told Barr he would fight the firing on the basis of his court appointment. Berman would likely lose in the end, but in the meantime the whole affair would be in the news, and likely wouldn’t be resolved by the courts until months passed, potentially after the election.

But why, and why the timing? The White House has said it was a essentially a patronage deal. Clayton apparently wanted to move to NYC and Barr/Trump needed to create a suitable position for him. That’s the most favorable explanation, but even that doesn’t completely jell. The main problem is that this type of deal typically is done at the start of one’s term, not 5 months before the potential (and looking more likely) end of one’s term. Clayton would move, only to be dismissed in January?

And who is Clayton? Along with running the SEC, he is one of Trump’s golfing buddies. One can only wonder what enforcement actions he would take if, for example, Trump or Trump’s family or Trump’s friends were doing insider trading based on advance knowledge of Trump’s tweets.

Another explanation is that the SDNY was known to be pursuing several cases against Trump supporters, including Giuliani. Perhaps one of those cases was close to becoming public and changing lead attorneys would certainly delay such a case while the new guy got up to speed.

Yet another explanation is that Trump is continuing his practice of eliminating anyone who isn’t loyal enough, and Berman certainly wasn’t. Perhaps this was mixed in with pure retribution, another Trump trait.

Reaction has been unanimously negative, or at least I’ve not yet seen any opinions supporting Barr’s actions. The NYC Bar. The Atlantic. Even Fox News.

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