Trump distances himself from Geoffrey Berman firing after AG Barr says president was behind decision

June 20, 2020
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President Donald Trump dismissed Manhattan’s chief federal prosecutor Geoffrey Berman on Saturday after the prosecutor who had launched a series of criminal inquires targeting the president’s allies refused to resign, Attorney General William Barr said in a letter to Berman.

“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,” Barr wrote.

Barr said Deputy U.S. Attorney Audrey Strauss would serve as the acting chief of the office until a permanent successor could be seated.

Almost as soon as the letter was made public, however, Trump appeared to distance himself from the attorney general’s statement, saying that the decision to remove Berman was Barr’s to make.

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“I’m not involved,” Trump told reporters before departing for a campaign rally in Oklahoma.

Geoffrey Berman, U.S. attorney in Manhattan, in April 2019 during a news conference.
Geoffrey Berman, U.S. attorney in Manhattan, in April 2019 during a news conference.

The action comes after an extraordinary confrontation late Friday night in which Barr first announced that Berman would be “stepping down,” only to have the prosecutor fire back that he had no intention of resigning his post.

The clash thrust the Justice Department into fresh turmoil, raising new questions about its independence from a White House that has sought to remove members of the administration it has cast as disloyal.

Barr and Berman discussed his tenure earlier Friday while the attorney general was in New York meeting with New York Police Department officials, a person with knowledge of the matter said Saturday. At that time, Berman was offered other positions in the administration, including chief of the Justice Department’s Civil Division in Washington. The source who is not authorized to comment publicly said Berman believed that the conversation was only the start of a longer conversation about possible personnel changes.

“Unfortunately, with your statement of last night, you have chosen public spectacle over public service,” Barr said in the letter, referring to the prosecutor’s refusal to capitulate.

“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,” Barr wrote.

“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. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General.”

Barr said he was asking Horowitz to review any claims of improper interference.

For his part, Berman said hours later that he would leave the office he has held for more than two years without a challenge, adding that his departure would be “effective immediately.”

“It has been the honor of a lifetime to serve as this district’s U.S. Attorney and a custodian of its proud legacy, but I could leave the district in no better hands than Audrey’s,” Berman said. “She is the smartest, most principled, and effective lawyer with whom I have ever had the privilege of working. And I know that under her leadership, this offfice’s unparalleled (assistant prosecutors), investigators, paralegals, and staff will continue to safeguard the Southern District’s enduring tradition of integrity and independence.”

Until Berman’s statement was issued, it wasn’t immediately clear whether Barr’s letter would represent the final word on the Berman’s tenure and whether the prosecutor would challenge the action, as he was not nominated by a president or confirmed by the Senate. And with Trump now distancing himself from Barr, it also wasn’t clear who had directed the prosecutor’s removal.

Berman was appointed as interim U.S. attorney for the Southern District of New York in 2018 by then-Attorney General Jeff Sessions following a purge of federal prosecutors in the early days of the Trump administration.

When the interim term of 120 days lapsed without a formal nomination by the president, the judges in the New York district exercised their authority to make Berman’s appointment official, at least until another candidate is nominated and confirmed.

Since Friday night, Berman had leaned heavily on that judicial authority to maintain control over the Justice Department’s most prestigious office outside of Washington, D.C.

“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 after Barr abruptly announced that the prosecutor was “stepping down.”

“I will step down when a presidentially appointed nominee is confirmed by the Senate,” he said.

The crucial Justice Department office has prosecuted Trump’s former personal attorney Michael Cohen and is heading an investigation of the president’s lawyer and close adviser Rudy Giuliani.

The Giuliani inquiry has focused in part on the former New York mayor’s work with business associates Lev Parnas and Igor Fruman, who helped Giuliani seek damaging information in Ukraine about the family of Joe Biden, the former U.S. vice president and presumptive Democratic nominee for president in the 2020 election.

This week, Trump national security adviser John Bolton revealed in a book that the president once sought to interfere in a federal investigation of a Turkish bank to pacify Turkey’s president, Recep Tayyip Erdogan. The inquiry also has been headed by Berman’s office.

A Justice Department opinion, although authored more than 40 years ago, addresses the lines of authority in such unusual cases. It concludes that the president — not the attorney general or a consortium of judges — has the power to remove a U.S. attorney who holds the position by judicial appointment.

In such cases, the opinion states, “the power of removal may be even more important to the president than the power of appointment.

“Indeed, it is the power to remove, and not the power to appoint, which gives rise to the power to control,” the memorandum states. The document raised potential conflicts of interest if judges were authorized to remove prosecutors.

“Due process problems could arise if a court, through the exercise of its removal power, (was) enabled to control the manner in which a prosecutor performs his official duties. We therefore are of the opinion that the power to remove a court-appointed U.S. Attorney rests with the president,” the memo states.

In his letter to Berman Saturday, the attorney general also asserted that the president had unquestioned authority to remove a judicially appointed U.S. attorney

“Indeed, the court’s appointment power has been upheld only because the Executive retains the authority to supervise and remove the officer,” Barr wrote.

Some legal analysts, however, disagreed, saying that provisions of the law allowing for the judicial appointments of U.S. attorneys should control.

“Berman is the Acting U.S. Attorney by dint of a ‘judicial’ appointment,” University of Texas law professor Stephen Vladeck tweeted Saturday. “There’s a pretty good argument that, per the plain language of (the law) he gets to keep serving in that post until the ‘vacancy’ is filled through Senate confirmation of a permanent successor.”

Attorney General William Barr on June 8, 2020.
Attorney General William Barr on June 8, 2020.

David Weinstein, a former federal prosecutor in Miami, believed Berman’s initial interpretation was “correct.”

“The Department of Justice opinion is simply that — an opinion,” Weinstein said, adding that the document is not binding. He said Trump lost his control over Berman when he failed to nominate a candidate during Berman’s interim tenure.

“This all falls back on the president because of his failure to act,” Weinstein said, adding that a resolution may be up to the courts.

The urgency of Barr’s Friday night action also was not immediately clear. Equally unexpected was the accompanying announcement that Trump intended to nominate Jay Clayton, the Securities and Exchange Commission chairman, who has no experience as a federal prosecutor.

Instead, Barr hailed Clayton’s “management experience and expertise in financial regulation.”

A person familiar with Clayton’s selection said the former SEC chairman had expressed an interest in the prosecutor’s job, as he planned to leave the administration and his position in Washington.

Until Clayton’s nomination is considered by the Senate, the attorney general said Friday night that the president was appointing New Jersey’s chief federal prosecutor, Craig Carpenito, to take Berman’s place, beginning July 3. On Saturday, Barr walked that announcement back, saying that Berman’s top deputy, Strauss, would take charge as acting U.S. attorney until a replacement was seated.

Rather than argue that Berman was being removed for cause, the attorney general lavished praise on the prosecutor, saying he performed with “tenacity and savvy.”

“The attorney general, himself, acknowledged that there was no reason for his removal,” Weinstein said.

This article originally appeared on USA TODAY: Geoffrey Berman: Trump fires US attorney in Manhattan, Barr says

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