Legal Matters: Geoffrey Berman

Legal Matters: Geoffrey Berman
Geoffrey Berman, JD ’84, the Edwin A. Heafey Jr. Visiting Professor of Law and Visiting Fellow, Rock Center for Corporate Governance

High drama was not on Geoffrey Berman’s mind when he joined his boss, U.S. Attorney General William Barr, for a hastily arranged lunch in June.

A Trump appointee, Berman, JD ’84, had been at the helm of the U.S. Attorney’s Office for the Southern District of New York (SDNY) since January 2018. He enjoyed his job as the chief federal law enforcement officer in the heart of New York supervising one of the largest groups of federal prosecutors in the country—and overseeing a high volume of some of the nation’s most important cases—several of them politically sensitive.

And he loved SDNY—a place he had called home early in his career.

After graduating from Stanford Law, Berman clerked for Leonard Garth of the U.S. Court of Appeals for the Third Circuit. He then became an associate at Davis Polk & Wardwell, where he was mentored by Robert Fiske, Jr., a Davis Polk partner and himself a former U.S. attorney. In 1986, Fisk recommended Berman to Lawrence Walsh, a former law partner at Davis Polk turned U.S. deputy attorney general, who was appointed independent counsel in December 1986 to investigate the Iran-Contra affair during the Reagan administration. After working on the Iran-Contra investigation, Berman, in 1990, joined SDNY as an assistant U.S. attorney, where he prosecuted complex frauds, including tax, securities, and computer hacking violations. After four years, he went into private practice, becoming a partner at Latham and Watkins, and later joined his father’s real estate development company as general counsel before returning to private practice at Greenberg Traurig. The mix of government service and private practice was just right for his return to SDNY.

As U.S. attorney for SDNY, Berman embraced its reputation for independence and nonpartisanship. During his tenure, his office took on several high profile cases—including the prosecution of Jeffrey Epstein as well as hand-offs from special prosecutor Robert S. Mueller III, who was investigating crimes arising out of Russian meddling in the 2016 election. Berman’s office had also secured a guilty plea from President Trump’s one-time personal lawyer, Michael Cohen, for tax fraud and violating campaign laws. And Berman secured an indictment of Christopher Collins, a Republican congressman from New York, on insider trading charges and lying to the FBI. Questioned about the Collins’s indictment at a news conference, Berman declared, “Politics does not enter into our decision making on charging. We bring a case when the case is ready to be brought.”

Perhaps it was that independence that led to the June lunch between AG Barr and Berman. But, as Berman describes in the Q&A that follows, neither ate as the meeting grew tense and Barr asked Berman to resign his position, offering him prestigious alternative assignments. A standoff ensued when Berman refused, finally breaking only when the AG conceded that Deputy U.S. Attorney Audrey Strauss would serve as acting U.S. attorney and Berman was satisfied that the work of SDNY would continue, unimpeded. The tense situation cemented Berman’s reputation at SDNY and underscored his dedication to the office—and he is now part of its storied history.

When Geoffrey Berman thought about teaching, he didn’t have Zoom in mind. But during his first quarter at Stanford Law School this fall as the Edwin A. Heafey Jr. Visiting Professor of Law, the ongoing COVID-19 restrictions have made his visit “virtual” and the students in his class visible only as squares on his computer. No matter. He’s loving it.

“Teaching this fall at Stanford Law has been incredibly rewarding both intellectually and personally. The students are engaged, talented and bring insightful, fresh perspectives to the topics we are exploring,” says Berman, who has been teaching Prosecutorial Discretion and Ethical Duties in the Enforcement of Federal Criminal Law. The course title goes to the core of what Berman believes are the essential elements of a good prosecutor. In the course description for prospective students, which Berman wrote, he quotes former U.S. Supreme Court Justice George Sutherland, “[T]he United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” Berman knows a thing or two about the subject of the class he’s teaching and more than a few of the people who have worked on some of the nation’s toughest cases have been Zooming in as guests for the students to query.

Berman had no intention of leaving the job he loved at SDNY so soon. But imparting his experience to the next generation of lawyers, some perhaps U.S. attorneys in the making, made sense to him as a next move after his abrupt departure. As to what comes after Stanford Law, he says he’s going to take his time on that.

Here, Geoffrey Berman, JD ’84, is interviewed by Robert Weisberg, JD ’79, the Edwin E. Huddleson, Jr. Professor of Law, faculty co-director of the Stanford Criminal Justice Center, and associate dean for curriculum, and David Alan Sklansky, the Stanley Morrison Professor of Law and faculty co-director of the Stanford Criminal Justice Center.

 

David Sklansky: Well, let’s start this discussion at the end, with your very dramatic exit from the office and the standoff that ended with your turning the office over to Audrey Strauss, instead of to Craig Carpenito, who the attorney general had announced would be stepping in on a temporary basis. Can you talk about how you wound up leaving the office and why it was important to you to turn things over to Audrey, instead of to an outsider?

Geoffrey Berman: Sure. So, leaving the office when I did was not my idea. The attorney general invited me to a lunch meeting where no one ate lunch, and he told me that he wanted me to resign immediately and he offered me chief of the civil division at Main Justice.  He said that Jay Clayton would be nominated for U.S. attorney for the Southern District of New York (SDNY). And that didn’t make a lot of sense to me because if Clayton was going to be nominated, it would take months for him to be confirmed and there was no reason for me to resign immediately.  I could just stay on the job and continue supervising the office’s sensitive investigations and then leave if and when Clayton was confirmed. So I told the attorney general that I was not interested in the job he offered or any other job and that I would leave when Clayton was confirmed and I would leave without a sound. That’s the proper course of things and I respect that process.

Sklansky: But that wasn’t what was proposed.

Berman: No. Because the attorney general wanted my immediate resignation, I was concerned not so much with the nomination of Jay Clayton, but more with who was going to take the spot of acting U.S. attorney during the interim period between my resignation and the confirmation. That’s what I was primarily focused on—doing everything I could to ensure that the office’s investigations would continue uninterrupted in the months prior to the election.  A few months earlier the attorney general arranged for the U.S. attorney in D.C. to resign and replaced her not with her deputy but with someone from outside that office who was a senior adviser to the attorney general. I suspected that that was exactly what the attorney general wanted to accomplish in the Southern District and I was committed to stopping that from happening.

Sklansky: Well, turning it over to Audrey Strauss on an interim basis seems so sensible. Did you encounter any resistance when you made that suggestion?

Berman: The attorney general was not interested in discussing any alternative to his plan.  My primary goal was to convince him that he should reconsider. That’s really all I wanted. The attorney general told me that if I did not resign, I would be fired.

I was prepared to fight my removal in court because, as I explained to the attorney general, I was appointed by the judges of the Southern District of New York and could only be removed by those judges, or when a nominee was confirmed by the Senate. And I was prepared to litigate that issue in the Southern District of New York. But once the attorney general conceded that Audrey Strauss would take over instead of Carpenito, who has no experience in the Southern District of New York, as soon as the attorney general made that concession, I stepped down.

Sklansky: Up until, say, the last week of your tenure as U.S. attorney at SDNY, did you feel that the relationship between your office, Main Justice [DOJ], and the special counsel’s investigation was what it should be?

Berman: It’s very tough for me to comment on that. I can say that the decisions made at the Southern District of New York were based on the law and the facts, without regard to partisan political concerns, and that any interference or attempted interference by the Department of Justice in that process was unsuccessful.

Robert Weisberg: Let me take a shot at looking at your tenure from an entirely different perspective. You were a political appointee. Although, quite rightly, you were viewed as impressively apolitical. When you come in as the new head in an office, particularly in the Southern District, where you’ve got some of the best lawyers in the country who are totally non-political, what kind of tension does that create? Or is it simply understood by the long-term deputies that they will adjust to your views?

Berman: Growing up in the Southern District of New York as an AUSA [assistant United States attorney] and internalizing the values of that office allowed me to communicate from my heart—reassuring them that I was going to continue the traditions of independence and professionalism of the office. And among the great values of the office are teamwork and respect for the opinions of everyone involved in any investigations. So that’s something that I was able to express when I was in the office in the early ’90s and then again leading it. And the different viewpoints were something I welcomed and encouraged throughout my tenure.

Weisberg: You had quite a long run, and a very distinguished run, in private practice between your two phases in the U.S. attorney’s office. How did that experience in the private sector inform how you handled the SDNY office?

Berman: I found that my experiences in the defense world and in private practice were critical to performing my role as U.S. attorney. As hard as you try, and as smart as you may be, there is no substitute for the perspective you gain after years of representing clients being investigated by the government.  And so it has typically been the practice in the Southern District of New York, in its modern history, to select a U.S. attorney who has been an AUSA in the Southern District but who also has significant experience as a defense attorney. And I fully subscribe to that.  The Southern District is also one of the few districts where the deputy and chief of the criminal division typically return to the office after significant experience in private practice.

Weisberg: And that’s a wonderful perspective to bring to our students, so I’m looking forward to that. David?

Sklansky: We’ve been talking a lot about professional independence. But I want to spend some time talking about other ethical issues that federal prosecutors have to deal with. Because I imagine that some of these will be coming up in the course you’re teaching at Stanford Law School.

One issue that the Department of Justice has had difficulties with over the last couple of decades, and lots of state prosecutors have had difficulties with, is the Brady rule—to turn over exculpatory evidence to the defense. I’m wondering how you handled those issues as U.S. attorney and whether this is another area where the time you spent in private practice came in useful.

Berman: When I would swear in new AUSAs, it was very important for me to talk not only about the history and values of the Southern District of New York but, specifically, about the duty of every AUSA to pursue justice and fairness. Those are core values. And that’s at the heart of the Brady obligations. At those swearing-ins I would quote Justice Sutherland, who said that prosecutors are not ordinary lawyers representing a private client. They represent a sovereign whose obligation to govern impartially is as significant and important as its obligation to govern at all. And that prosecutors should not go out to win a case—rather, they must seek justice. And in pursuing justice, they may strike hard blows but not foul ones. It’s very important to instill that in every new AUSA, and there’s extensive training at SDNY. While I was there, we doubled down on that training and made it even more comprehensive. So it’s extremely important that prosecutors abide by their discovery obligations, because our job is to pursue justice, not to win.

Sklansky: What other ethical issues did you find yourself confronting while you were U.S. attorney?

Berman: The ethical obligation to do justice is applicable to all aspects of the job, not only discovery and trial practices. In deciding whether to charge an individual and, if so, what to charge, I believe a prosecutor has an obligation to ensure that people are treated fairly and proportionally and that similarly situated individuals are treated the same way. That is one of the toughest aspects and responsibilities of the job.

Weisberg: I’m not sure how much you were concerned about such rarified matters as statutory interpretation, but from my years of teaching white-collar crime, I have always been fascinated by the breadth and the vagueness of the federal fraud laws. And the exquisite vagueness of the honest services law—although it’s been somewhat curtailed by Skilling. And, of course, in terms of public bribery, the Supreme Court has, you know, been tinkering in the direction of leniency, particularly with McDonnell. And I guess you could say also the Kelly case. And the reason the convictions in the George Washington Bridge “bridgegate” case were overturned, if you will. I just wonder what your view is and did you and your prosecutors struggle to figure out how to have a kind of internal jurisprudence with mail and wire fraud. Heck, they can apply to almost anything.

Berman: The wire fraud and mail fraud statutes are critical statutes in our work, particularly for our public corruption cases, which for decades have been a priority of our office.  We have brought important cases over the years, based on what we believe are solid theories.  Over the past few years some of those theories, as you have noted, have been modified and refined by the courts, which have led to remands and retrials.  But the facts of our cases and the corruption involved have been so compelling that even with modifications in the law and revised jury instructions that require additional elements to establish the crime, our cases have held up.  And even in the context of this changing environment and, you know, the changing law from the Supreme Court, we have been able to pursue those cases. The important thing for SDNY is to be consistent and to identify conduct that is truly wrongful and in the wheelhouse of corrupt behavior.

Sklansky: Can we talk about prosecutorial priorities generally?

Berman: In the Southern District of New York, there are certain core areas that are always a priority. We’re the home of Wall Street and so securities and fraud prosecutions are always a priority. Those are some of our bread-and-butter investigations. Terrorism and national security are core areas too. One area that became a priority during my tenure was human trafficking and sex trafficking. There were many righteous cases and I felt that we should be devoting more resources to them. And you saw that commitment in some of the cases that were brought during my tenure—and after I left.

In determining your priorities you must take into account the local needs of your district.  And in our district, public housing has been a disgrace. So that was a priority and there was no more important case in the office than our investigation of and charges against the New York City Housing Authority.

Weisberg: Interesting.

Berman: That civil action was extremely impactful. You know, 10 percent of New York City residents live in NYCHA housing and the conditions are horrendous. So not only did we bring a lawsuit identifying the many deficiencies in the conditions of the apartments, including the presence of dangerous lead paint, mold, vermin, elevators that don’t work and a lack of heat in the winter, but we were also able to get the City of New York to put up more than $2 billion toward the fixing of those awful conditions.  There is an enormous amount of work to be done. In fact, the work is just starting, but I’m very proud of that settlement.

Sklansky: How does that work? When you have ideas about new priorities—areas that you think the office should be putting more resources into than maybe it did before?

Berman: You know, it happens in various ways. For example, we have agency partners. The FBI, ATF, DEA, NYPD, and SEC are some of our partners.  I would have conversations with the heads of those agencies and talk about areas we might focus on and to which we might jointly devote resources.  For example, with our agency partners we decided to devote resources to investigating doctors who were prescribing opioids for no medically necessary reason.  We brought several indictments against “dirty doctors” and I think that sent the message out to all doctors that we would not tolerate the abuse of opioid prescriptions.

The suggestion to expand into new areas may come from line AUSAs or unit chiefs who see an unmet need. As I said, the culture of teamwork at the SDNY is very strong. All voices are heard and respected. If the idea comes from leadership, you want to bring in the unit chiefs and make sure that they agree that it’s an unmet need. And then they socialize it with the AUSAs. We were fortunate in the Southern District to have our own in-house investigators.  So if we wanted to prioritize a particular type of case, we were able to pursue it with our own resources as well, without the need for a partner agency. And there are plenty of cases found and priorities developed by just reading the papers.

Sklansky: Can you talk about conflicts among U.S. attorney offices?

Berman: The conflicts typically arise when conduct in support of the same criminal scheme occurs in two or more jurisdictions and is investigated by two or more U.S. attorney offices.  Or where the target is in one jurisdiction and the victim in another jurisdiction.  Having the resources of two offices investigating a single scheme is not efficient and not optimal for a just result.  So, only one of the offices should be chosen to proceed with the investigation.  And I would say 80 percent of the time this kind of conflict is resolved between the offices when one office is either farther ahead in the investigation than the other office or has a greater claim to the wrongful conduct. Most of the time the conflicts are resolved below the level of the U.S. attorney, but sometimes the dispute requires a conversation between the U.S. attorneys.

I very much believe that it is incumbent on U.S. attorneys to resolve turf disputes without escalating them to the DOJ. And I also believe that there should be complete transparency. It should be a very straight-up, cards-on-the-table conversation. And I’m happy to say that the vast majority of turf disputes were resolved in that kind of professional way.  There would only be a few disputes that would need to be resolved by the deputy attorney general.

Weisberg:  Switching topics a bit to your Stanford Law days, can you tell us what impression you got of criminal law when you were a student here? When I started teaching criminal law, the great leader in the field was Barbara Babcock, on the procedure side. And Barbara, as you may know, was the truest believer there ever was in criminal defense. And she never wanted to encourage our students to be prosecutors.

Berman: I remember her criminal law class. She said that there were certain questions that a lawyer might not want to ask a client, such as “Did you really do it?” I was so naive that my jaw dropped.

Weisberg: So a couple of things. First of all: What kind of career advice would you give to students who want to be prosecutors?

Berman: Well, first of all, it’s a great job. One of my goals in teaching at Stanford is to help spread the word about the rewards of a career in public service and, in particular, the rewards of working as a prosecutor.  My years as a prosecutor, protecting the community, bringing justice to victims, and practicing law at the highest and most demanding level, have been by far the most  fulfilling of my entire career.

For people considering a career as a federal prosecutor, I think that a summer internship at a U.S. attorney’s office is valuable because you will gain a good understanding of the work and the people and figure out if it’s something you want to pursue.  If so, then a clerkship sometime after law school is very helpful. And then working at a firm that has alums of the office you’re interested in applying to can be a good idea because every U.S. attorney’s office relies on its network of alums to send the best candidates.

Sklansky: Can you talk about diversity inside a U.S. attorney’s office and why it’s important? And whether the Southern District is as diverse as you think it should be?

Berman: The Southern District is constantly striving through several initiatives to be more diverse. It’s important to have a diverse office because we represent a diverse population and our prosecutors should reflect that population.  As I mentioned, one of the values and strengths of the Southern District is that all viewpoints and opinions are respected and considered in exercising the important discretion of whom to charge and what to charge.  A diversity of perspectives can only help the office in its pursuit of justice.

Weisberg: Do you think a significant change in diversity could be expected to change the way an office operates? Not just at SDNY, but generally. Is that another payoff?

Berman: Yes. Great institutions need to adapt and change over time in order to remain great and I think increased diversity can help with that kind of change.

Sklansky: You’ve touched a couple times on what’s special about the Southern District.

Berman: We’re not averse to patting ourselves on the back every now and then.

Sklansky: I’m curious about whether you think that the Southern District really is different from the rest of the U.S. attorney’s offices? And in what ways?

Berman: From 1789 through the mid-19th century, U.S. attorneys, or district attorneys as they were known then, were entirely independent from the U.S. attorney general.  Even after the Department of Justice was formed, a compelling argument can be made that Congress intended U.S. attorneys to retain a significant amount of their original autonomy from Washington, D.C.  I think that relationship is consistent with what the framers intended and I think it helps keep politics out of the enforcement of criminal law.  So when people speak of the tradition and culture of the Southern District being one of independence, to me the question is not why is the Southern District special, the question is why do other U.S. attorney offices not exercise that same autonomy.

Sklansky: So, what’s next for you, other than teaching at Stanford Law School?

Berman: Oh, I’m open to any possibility. I’m enjoying teaching here at Stanford Law. And then I’ll turn my attention to what’s next.

Weisberg: Thank you so much, Geoffrey, for spending time with us.

Sklansky: Yes—thank you. This was great.

Berman: My pleasure.