Trump's Potential U.S. Attorney Picks Are Fine Lawyers—But Tainted Nominees
“It is neither normal nor advisable for Trump to personally interview candidates for U.S. attorney positions, especially the one in Manhattan."
October 23, 2017 at 11:20 PM
24 minute read
Geoffrey Berman, left, and Edward McNally, right.
Preet Bharara said it best. “It is neither normal nor advisable for Trump to personally interview candidates for US Attorney positions, especially the one in Manhattan,” the former U.S. Attorney for the Southern District of New York tweeted.
Last week, reports emerged that President Trump spoke with Greenberg Traurig partner Geoffrey Berman to serve as the top federal prosecutor in Manhattan, and Kasowitz Benson Torres partner Edward McNally to head the Brooklyn-based Eastern District, where Trump's son-in-law Jared Kushner has extensive holdings.
At this point, the names are not a surprise—they've been mentioned for months as frontrunners.
As for their law firms—well, it figures. Greenberg Traurig is the home of Rudy Giuliani, and Kasowitz Benson has represented Trump for years.
Either man would be a reasonable choice for the job—by all accounts, they're fine lawyers—except for those personal interviews. Because how do you escape the distinct sense that the chosen one will have been hand-picked, vetted to make sure he'll show appropriate loyalty and deference to his patron?
It taints them upfront. Just like Jessie Liu, the already-confirmed U.S. Attorney for the District of Columbia, who was also personally interviewed by Trump prior to her nomination. In my mind, she's tainted too.
It's glaringly obvious that the District of Columbia and the SDNY, as well as EDNY, are far and away the offices most likely to cause trouble for Trump, his family members or his associates. It hardly seems coincidental that those are also the only offices where the president is known to have interviewed potential top prosecutors.
Quite simply, this is not how the 93 U.S. attorneys are traditionally picked. Normally, they're interviewed by top Justice Department officials, with home state senators able to recommend or block candidates. The president's role has been to submit the nomination to the Senate.
That's not to say President Obama had zero connection to any of his selections. For example, Patrick Miles Jr., who served at the U.S. attorney for the Western District of Michigan, and Steven M. Dettelbach, the former U.S. attorney for the Northern District of Ohio, were both classmates of the 44th president at Harvard Law School.
But Obama also did not own a fortune in real estate in either district, nor was his campaign facing an ongoing investigation by a special counsel.
A White House official last week told Politico, “We realize Senate Democrats would like to reduce this president's constitutional powers. But he and other presidents before him and after may talk to individuals nominated to positions within the executive branch.”
No one is saying it's illegal. But that doesn't make it appropriate. Not when it's this president and those offices.
Liu in a submission to the Senate Judiciary Committee disclosed her meeting with Trump, but said, “(n)o one has asked me to commit that I will be loyal to the President or the Attorney General, and I have not made such a commitment.”
I believe her, but I also wonder if perhaps the request was conveyed without using those exact words.
It's worth revisiting Bharara's account in his Sept. 19 podcast, Stay Tuned with Preet, of his encounters with Trump before he was fired from his post as U.S. attorney.
Their first meeting was on the morning of Nov. 30 in Trump Tower, after Bharara had been told by Sen. Chuck Schumer that Trump wanted him to stay on the job.
It was basically small talk. “He did not say anything inappropriate, he did not get into any examples of cases at all. … We talked for 15 or 20 minutes, at the end of which he said, 'I've already talked to Jeff Sessions about it … he's on board, everyone is excited to have you on.'”
Bharara said he told him, “I intend to do the job, if I stay, the way I've been doing it for seven-and-a-half years. Independently, apolitically and aggressively, as the law requires and my oath requires.”
So far, so good. The only odd thing was, Trump asked for his cell phone number. “As a general matter, presidents don't speak directly to Unites States attorneys. It's unheard of, in my experience,” Bharara said.
A few weeks later, on Dec. 12, Bharara got a message that Trump had called. He debated whether it was appropriate to call him back, but decided it was OK since Trump was not yet president.
Still, he added, “The number of times President Obama called me? Zero.”
“I thought it was not the greatest thing in the world for there to be a direct and casual line of communication between a sitting United States attorney and the future president of the United States, particularly given the kinds of jurisdiction I have in Manhattan … interests close to the president of the United States.”
The call was genial, with Trump “clearly wanting to cultivate a relationship,” Bharara said. He hoped it would be “a one-time thing, and I wasn't going to hear from him again.”
On Jan. 18—two days before the inauguration—Trump called again, seemingly “to shoot the breeze….I thought it was again odd…To my knowledge, Donald Trump did not call any other U.S. attorney.”
On March 9, Bharara got a message that Trump called yet again. Bharara said he “worried how it would look later if these unusual, perhaps unprecedented calls, had taken place between the president of the United States and the U.S. attorney he had asked to stay, who has particularly poignant areas of jurisdiction.”
“There has to be not just independence, but the appearance of independence. … The phone call itself was a problem,” he said.
After consultation with the Justice Department, Bharara declined the call. The next day, he was asked to resign.
Had he gone along with Trump's attempts to cultivate a relationship, Bharara said, “It's my strong belief, given the history, that the president of the United States would have asked me to do something inappropriate.”
Which is exactly why it's so alarming that Trump is personally interviewing candidates for U.S. attorney.
The lawyers who fill those jobs may serve at the pleasure of the president, but they don't serve the president. For Trump's hand-picked candidates, who are willing to go along with what they must know is abnormal hiring process, that distinction may be alarmingly blurred.
Geoffrey Berman, left, and Edward McNally, right.
Preet Bharara said it best. “It is neither normal nor advisable for Trump to personally interview candidates for US Attorney positions, especially the one in Manhattan,” the former U.S. Attorney for the Southern District of
Last week, reports emerged that President Trump spoke with
At this point, the names are not a surprise—they've been mentioned for months as frontrunners.
As for their law firms—well, it figures.
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