Late on Friday, June 19, reports that Attorney General William Barr had accepted the resignation of Geoffrey S. Berman, JD ’84, United States Attorney for the Southern District of New York, were followed by reports that Berman had not resigned and planned to stay in his position overseeing multiple investigations—some focused on Trump associates. On June 20, Barr released a letter saying that President Trump had fired Berman—although the President then said that he was not involved. Barr’s letter also said that Berman’s chief deputy, Audrey Strauss, would run the office until a permanent successor was in place. This was a change from Friday, when DOJ had indicated that the United States Attorney for New Jersey, Craig Carpenito, would be taking Berman’s place. Berman stepped down shortly after Barr released his letter on Saturday.
Berman, who served as an Assistant United States Attorney for the Southern District of New York from 1990 to 1994, was appointed interim U.S Attorney in January 2018 by Trump’s first U.S. Attorney General, Jeff Sessions. On April 25, 2018, judges of the United States District Court for the Southern District of New York extended the appointment. Here, Stanford Law Professors David Sklansky and Robert Weisberg discuss Berman and the legal issues surrounding the attempt to fire him.
How unusual is it for a U.S. Attorney to be dismissed midway through critical investigations—and by the administration that appointed him?
Sklansky: In fairness to the Administration, the U.S. Attorney’s Office for the Southern District of New York is pretty much always in the middle of critical investigations and prosecutions, so it would be difficult to find an occasion to dismiss the U.S. Attorney when there weren’t any critical, ongoing investigations. And we don’t know if Barr is trying to push Berman out because of some particular investigative step Berman is preparing to take, or whether it’s just the result of accumulating grievances on the part of Barr or Trump about the independence that Berman has shown.
But precisely because U.S. Attorneys—and especially the U.S. Attorney for the Southern District of New York—generally are in the middle of important work, and because of the importance of U.S. Attorneys exercising independent, professional judgment, it has been rare for U.S. Attorneys to be dismissed in the middle of a presidential term. When President George W. Bush fired seven U.S. Attorneys midway through his second term, it caused a huge political scandal, and an internal investigation by the DOJ Inspector General slammed the dismissals as improper because they were politically motivated.
Weisberg: There are conflicting explanations for why those firings occurred. One was that those US Attorneys had been too prone to investigate Republicans for corruption and too unwilling to go after Democrats. But overall the prosecutors were probably motivated by a general distrust of those prosecutors’ policies and political leanings.
Sklansky: And here, of course, there are lots of reasons to think that Berman was pushed out because of particular, politically sensitive cases. Berman’s office prosecuted President Trump’s personal lawyer and fixer, Michael Cohen, and it has been investigating the President’s lawyer and confidant, Rudy Giuliani—who ironically was once himself the U.S. Attorney for the Southern District of New York. And among the revelations in John Bolton’s forthcoming book is a claim that President Trump tried to win favor with President Erdoğan of Turkey by short-circuiting an investigation by Berman’s office into a Turkish bank.
Was Berman’s appointment unusual in that it came from a panel of judges?
Weisberg: Yes, very unusual. His fixed term as interim U.S. Attorney had expired [by April 2018]. The White House did not appoint a replacement. Federal law authorizes the district judges to fill the job, and when they do so, argues Berman, that appointee cannot be replaced by a new appointee chosen by the President but not confirmed by the Senate. Whether Berman is right about this may involve some complicated interpretations of several federal statutes.
Sklansky: It’s not terribly uncommon for an interim United States Attorney to have his or her term extended by action of the local U.S. District Court, as happened with Berman. This is what has to happen, under the applicable statute—18 U.S.C.§ 546—if a new U.S. Attorney does not get nominated and confirmed within 120 days. I served under interim U.S. Attorneys who had their appointments extended in this fashion. It is unusual, though, for a key U.S. Attorney position, like the U.S. Attorney for the Southern District of New York, to go so long without the President even nominating someone to fill the position. President Trump fired Berman’s predecessor, Preet Bharara, in March 2017.
How does his path to the appointment complicate things for the administration, when they are trying to replace him?
Weisberg: Well, Representative Nadler is hungry for bear, but that is the House. On the Senate side obviously Senator Schumer will likely push hard to scrutinize any new nomination—and the chances of that getting through before the election seem low. Back in the House, Nadler will likely want to look into what is going on in DOJ—and will raise issues parallel to the Flynn controversy now in the federal courts in D.C.
Barr said the President intends to nominate Jay Clayton as Berman’s successor. Clayton has been serving as Trump’s chairman of the Securities and Exchange Commission and has never served as a prosecutor. Will Clayton require Senate approval?
Weisberg: Yes. Clayton hasn’t been a criminal prosecutor, but he is a respectable figure, and the White House may argue that the SEC is a quasi-prosecutorial body.
Sklansky: It’s unlikely that the Senate will take up Clayton’s nomination. Maybe if the President is reelected, but not unless and until that happens. The chair of the Senate Judiciary Committee, Lindsay Graham, has said he won’t move forward with the nomination without the approval of the two Senators from New York, Senator Schumer and Senator Gillibrand, and I can’t imagine them signing off on this. The problem isn’t Clayton’s qualifications; it’s the circumstances surrounding the ousting of Berman, which strongly suggest improper, political motivations.
Has Barr arguably committed an offense? Or Trump—if he in fact ordered the firing?
Weisberg: You may recall back in the Mueller days there was a controversy over whether Trump could be charged with obstruction for firing Comey or trying to fire Mueller. Some argued that this could not be obstruction because the president has full power to fire DOJ officials. That argument had its flaws. But if Barr—or Trump– claims the power to fire Berman, perhaps under 18 U.S.C.§ 1503, he has “endeavored” to obstruct a “proceeding” and has done so “corruptly” because that proceeding was whatever investigation Barr and Trump were possibly worried about (perhaps the Giuliani probe). That is wholly uncharted legal territory.
Sklansky: I think it all depends on Barr’s intent—on whether he has a corrupt motive. Or on the President’s intent, if he in fact ordered the dismissal. If either of them was trying to oust Berman because he wants to shut down an investigation for improper, political reasons, that counts as obstruction of justice. It’s true there’s an alternative view of obstruction of justice: that you can’t obstruct justice by doing something you otherwise would have a right to do. But that would mean that Nixon didn’t obstruct justice by trying to shut down the Watergate investigation. I don’t think it’s a defensible understanding of the law.
What was the general view of Berman?
Weisberg: Ironically, given the controversy about this original appointment because of his ties to Trump and even Giuliani, the general view is that Berman has been very fair and nonpartisan and, most notably he seems to have won the respect and loyalty of the line prosecutors.
Sklansky: That is my impression as well. And if anything his reputation among prosecutors and former prosecutors is even stronger now than it was before Friday evening.
What do you expect to happen to the cases Berman was focused on?
Weisberg: Perhaps Berman squeezed out a small victory when Barr appointed Strauss so that investigations will continue, at least for the next few months. Barr will be under great scrutiny if he tries to intervene. So, if Barr wants to thwart an investigation, it will require a Trump second term and a new appointee.
Sklansky: I agree. Now that Strauss is taking over, instead of the outsider Barr initially tried to bring in, it’s much more likely that the office’s cases will proceed uninterrupted. It could be more than a small victory.
David Alan Sklansky, a former federal prosecutor, is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement. Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.