'Something Stinks': What Lawyers Are Saying About Barr's Move to Oust Berman
The ousting of Manhattan U.S. Attorney Geoffrey Berman, and the resulting extraordinary but brief standoff that ensued, raised broad new questions and concerns among lawyers about U.S. Attorney General William Barr's leadership of the Justice Department.
June 21, 2020 at 11:04 AM
8 minute read
The original version of this story was published on Law.com
The resignation of U.S. Attorney Geoffrey Berman on Saturday capped a tumultuous 24-hour moment within the Justice Department.
Many lawyers watching from afar supported Berman's refusal to leave his post heading the U.S. Attorney's Office for the Southern District of New York. Others said Donald Trump and Attorney General William Barr were within their right to replace Berman, who serves at the president's pleasure.
Barr and Trump did not give a reason for removing Berman, whose office was reportedly overseeing myriad investigations of figures in Trump's orbit.
The saga began Friday night when Barr announced Berman was resigning, and that he would be replaced on an acting basis by Craig Carpenito, the U.S. attorney for New Jersey. Berman issued his own statement a short time later refuting Barr, and he said he would not step down from his post until a successor was confirmed. Berman showed up to work Saturday morning, telling reporters that he was there to do his job.
Later that day, Barr said the president had decided to fire Berman, and that Audrey Strauss, the deputy attorney for SDNY, would take over on an acting basis. But even that narrative came under fire after Trump said hours later he was not involved in any decisions to remove Berman and that it was all Barr.
Berman on Saturday afternoon agreed to step down, with many lawyers watching the saga saying he ultimately got what he wanted before leaving: Ensuring the Trump administration didn't handpick a temporary replacement to oversee the investigations. Trump intends to nominate Jay Clayton, the SEC chairman and a former Sullivan & Cromwell partner, as the U.S. attorney for SDNY.
Here's a snapshot of some of what lawyers are saying in published reports and on social media:
>> Stuart Gerson of Epstein Becker Green and a former high-ranking DOJ official: "The upshot of all of this is that the administration is subverting the rule of law—which should serve the interest of the people without bias or favor, not the personal interests of the president—in a clear attempt to favor associates of the president and insulate his own misconduct from scrutiny." [The Washington Post]
>> James Comey, former FBI director: "There has always been a tension—much of it healthy—between Washington and the Southern District, but the attempt to fire the current United States attorney feels very different. Geoffrey Berman's office has apparently been handling cases very close to the president. In 136 days, there is an election that the incumbent appears likely to lose. The attorney general, surely not proceeding on his own, acts to bump the well-regarded head of the Office on a Friday night, in the middle of a pandemic. Something stinks." [The Washington Post]
>> Eric Holder of Covington & Burling and a former U.S. attorney general: "It is heartbreaking and infuriating to see what Trump and Barr are doing to DOJ. The level of political interference and corruption is without precedent. But this is not a time for despair. This is a time to stay and fight for the principles that have defined Justice at its best." [Twitter]
>> George Terwilliger, of McQuireWoods and a former deputy attorney general: "Given the importance of the day-to-day work of the Southern District, it's critical that the attorney general and the department have a relationship with the U.S. attorney that's marked by good rapport, being on the same page and someone in whom the attorney general has complete confidence. For whatever reason, that relationship just didn't develop." [Wall Street Journal]
>> Kelly Currie, Crowell & Moring and a former prosecutor: "It's telling that Berman's statement following Barr's attempt to oust him by press release explicitly defended ongoing investigations in that office. It's hard not to suspect that Barr's move is anything but an effort to thwart investigations that could be damaging to the president or his associates." [The New York Times]
>> Letitia James, attorney general for New York: "I am deeply concerned about the sudden removal of the U.S. Attorney for the Southern District of New York, especially given serious questions about who gave the order and the timing of the firing. I hope the Department of Justice heeds its own advice and puts public service over public spectacle. Ongoing investigations must not be interfered with, period. There is still much work to be done and it must be done independently. Americans deserve leaders who are committed to justice."
>> Matthew Collett, of Massey & Gail and former career DOJ attorney: "When I was at DOJ we had our share of turf battles with the 'Sovereign' Dist. of NY, although we worked closely on a lot of important matters and developed a good relationship of collegiality and mutual respect. But this is one time I'm rooting for SDNY." [Twitter]
>> Jonathan Turley, professor at George Washington University Law School: "If this were merely the replacement of an official with someone deemed better, it makes little sense to appoint an interim replacement to guarantee the immediate departure of Berman. That again raises the question of why now and why in this fashion." [Turley's blog]
>> Joyce Vance, professor at University of Alabama School of Law and a former U.S. attorney: "The real loser here is Barr, who was publicly caught lying in the service of a President who then denied he was involved in the firing. Berman is now free to testify to Congress & the House must insist that Barr appear for oversight hearings, albeit months late." [Twitter]
>> Molly McCann, of counsel at Sidney Powell and member of Michael Flynn's defense team: "This [straightens] the record on the Berman/Barr fiasco. It underscores again that Berman absolutely is continuing the obstruction of the will of people through defiance and insubordination. We *still* have not accomplished a peaceful transition of power." [Twitter]
>> Walter Dellinger, O'Melveny & Myers partner and former assistant attorney general: "The sudden removal of the US Attorney for the Southern District of NY must be entirely legitimate. Otherwise why would AG Barr have announced it late in the dark of a Friday night, traditionally the preferred time for announcing positive, good government news?" [Twitter]
>> Paul Rosenzweig, senior fellow at the R Street Institute: "One supposes that, eventually, Barr and Trump will get their stories straightened out. And Berman has now left, so the main goal has been achieved. But the real question is: Why? Why replace Berman now, just six months before the election?" [The Atlantic]
>> Rudy Giuliani, personal lawyer to Trump: "If they're investigating me, they're doing it in the most surreptitious way possible. It's the strangest investigation I've ever heard of…I'm upset that someone's giving away this information. I have nothing against Berman, but I would like him to clarify what the hell is going on." [New York Daily News]
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