jay clayton Jay Clayton testifies at his confirmation hearing for SEC chairman. Credit: Diego M. Radzinschi/ ALM

A week ago, Jay Clayton might have appeared before the House Financial Services Committee and spoken strictly as the leader of the U.S. Securities and Exchange Commission.

But on Thursday, at a hearing titled "Capital Markets and Emergency Lending in the COVID-19 Era," the SEC chairman was forced to address a new title: the Trump administration's expected nominee to serve as the top federal prosecutor in Manhattan, replacing the one U.S. Attorney General William Barr fired without any public explanation.

After three years as the powerful but relatively low-profile head of the SEC, Clayton was thrust into the center of a standoff over the leadership of that prominent prosecutor's office, as Barr announced Trump's intent to nominate him to serve as the U.S. attorney for the Southern District of New York. Trump has not formally sent Clayton's nomination to the U.S. Senate.

That announcement set off an extraordinary clash between Barr and the holder of the office, Geoffrey Berman, who disputed the attorney general's statement late Friday that he was stepping down. In a statement that same night, Berman rebuked Barr, saying he had no intention of resigning. Berman showed up to work the next day, but he would resign over the weekend only after receiving assurances that his deputy, Audrey Strauss, would step in as his interim successor.

Clayton was forced to address his role in the latest controversy to embroil the Justice Department in the Trump era—and even his status as one of the president's "golfing buddies." At least one Republican lawmaker likened Thursday's hearing, derisively, to a confirmation hearing.

Testifying through a white face mask, Clayton provided new details about the buildup to the weekend standoff, even as he deflected questions about the tumultuous leadership transition and proclaimed: "This is not a confirmation hearing. I'm here as the chairman of the SEC." Clayton broadly pledged "independence" but also refused to commit to recusing in any investigation by the Manhattan U.S. Attorney's Office into figures in Trump's orbit.

Clayton said he had raised the idea of serving as the top federal prosecutor in Manhattan on the weekend of June 12, a week before Berman and Barr butted heads in dueling press releases. Expressing an eagerness to return to New York, Clayton, a former partner at the Wall Street firm Sullivan & Cromwell, said the notion of becoming the top federal prosecutor in Manhattan "was entirely my idea" and something I've been thinking about for several months as a possible continuation of my service" beyond his tenure leading the SEC.

"This was something of interest to me. It came up the weekend of the 12th," he said. "That's the genesis for this. And I'm going to leave it at that."

When asked whether he'd resign from the SEC, Clayton said his expected nomination to replace Berman does not require his attention "at this time."

"And I expect to continue to devote my full attention to the commission," Clayton said.

"This is not the time to decide about the nomination," he added in response to U.S. Rep. Maxine Waters, the top Democrat on the House Financial Services Committee. "I'm here as the chairman of the SEC. As I look at it, there's no need for me to pay any attention to the nomination at this time. I am fully committed to being the chairman of the SEC."

In the days since his planned nomination was announced, Clayton has come under scrutiny over golf outings with Trump. The New York Times reported that Clayton and Trump played golf together over the weekend before controversy erupted over the handoff of power in the U.S. Attorney's Office in Manhattan.

Katie Porter Rep. Katie Porter, D-California. Credit: Diego M. Radzinschi / NLJ

On Thursday, U.S. Rep. Katie Porter, D-California, asked Clayton whether he believes "independence from the president is possible if you and the president are golfing buddies."

"I absolutely do, because I do it—I do my job every day without fear or favor. And we do justice at the SEC, and I think if you look at the record of the SEC, it's absolutely clear," Clayton replied.

Pressed about how frequently he's golfed with Trump, Clayton said he has joined the president a "handful" of times and consulted SEC ethics counsel about the outings.

Clayton arrived at the SEC in 2017 with a specialty in securities law and experience preparing companies for public offerings as a top partner at Sullivan & Cromwell. As he eyes the U.S. Attorney's Office in Manhattan, he has faced early skepticism concerning his lack of prosecutorial experience.

Clayton addressed that criticism Thursday, acknowledging he has "never been a prosecutor" while also pointing to the SEC's enforcement record under his tenure. He said the SEC has brought thousands of cases and recovered billions of dollars as he has led the commission's 1,300 enforcement attorneys.

"Many of the people who work under my oversight at the SEC are former prosecutors," Clayton said.

"I hope," he added, "that gives you comfort in your question."

 

Read more:

GW Law Faculty Aren't Trying to Rescind Barr's Honorary Degree—but They Did Slam Him

'Berman Will Be Fine': Some Think Spat Might Help Ex-US Attorney's Career Prospects

'Something Stinks': What Lawyers Are Saying About Barr's Move to Oust Berman