Well, we don’t call it the Sovereign District of New York for nothin’ …
There is tumult in the United States Attorney’s Office for the Southern District of New York, where I proudly spent nearly 20 years as a prosecutor. In a nutshell, after the two men met in Manhattan on Friday, Attorney General Bill Barr announced that evening that SDNY U.S. Attorney Geoff Berman was stepping down. Later during the night, Berman issued a statement essentially saying, “Like hell I am!”
Inevitably, President Trump fired Berman on Saturday afternoon, as announced by Barr. That should end the legal dispute over the job, though it may not. And the controversy has only just begun. It would seem strange to accuse the AG of interfering in the work of the Department he is sworn to run; yet, Democrats and the media darkly accuse Barr of impeding SDNY investigations that could negatively impact the president’s reelection bid. That claim seems overwrought, for reasons we’ll come to.
Still, the sudden removal of Berman just four months before the election raises questions. Practically speaking, there is no way the president’s nominee to replace Berman, current SEC Chairman Jay Clayton, would be confirmed before Election Day. There was, moreover, a significant issue regarding the legal eligibility of the prosecutor whom Barr initially named as Berman’s “acting” replacement — Craig Carpentino, currently the interim U.S. Attorney for the District of New Jersey (DNJ). Wisely rethinking that plan, the AG announced on Saturday that the SDNY would be run by Berman’s deputy, Audrey Strauss, until the Senate confirms a new U.S. Attorney.
The SDNY has a richly deserved reputation for independence from Main Justice in Washington. The office has always had a vigorous public-corruption unit, and boasts other units (major crimes, securities fraud, even occasionally organized crime) that sometimes target and sometimes stumble upon officials great and small, tied to both political parties. These characters are zealously prosecuted, without regard to whether their names are followed by “R.” or “D.” (By the way, corruption is the most bipartisan of political enterprises, and those enmeshed in it tend to see their party affiliation as more a racket than an indicator of allegiance or ideology.)
True to form, the SDNY has pursued investigations and prosecutions of people associated with the president and his circle. These include former Trump lawyer Michael Cohen, and Ukrainian business associates of the president’s personal lawyer, Rudy Giuliani. Before he was “America’s Mayor,” Rudy, of course, was a legendary United States Attorney for the SDNY (where, it happens, he hired me — though he got most things right).
This weekend’s sharp exchanges over Berman’s abrupt removal may seem tame compared to the fireworks on Capitol Hill. The House Judiciary Committee, whose chairman is Trump/Barr nemesis Jerry Nadler (D., N.Y.), had already scheduled a hearing for this coming Wednesday to probe alleged political interference by the AG in prosecutions of Trump associates Roger Stone and Michael Flynn. Seemingly before the sun rose Saturday morning, Chairman Nadler had invited Berman to join Wednesday’s festivities. It is not yet clear whether he’ll testify.
U.S. Attorneys: The Org Chart and the Politics
Constitutionally speaking, the Justice Department is a somewhat strangely arranged beast. That’s a vestige of our history: The position of attorney general, as well as executive branch-appointed lawyers, existed long before the Justice Department was established in 1870. The AG is the nation’s chief federal law enforcement officer. Holding presidential-cabinet rank, the AG runs Main Justice in Washington, with a staff that includes such Senate-confirmed officers as the Deputy AG, the Solicitor General, and the Chiefs of DOJ’s Criminal, Civil, National Security, and Tax Divisions, among others.
Federally speaking, the United States — i.e., the 50 states, the District of Columbia, and other territories — is divided into 94 judicial “districts.” Some big states (e.g., California and New York) have several districts; other states have only one. Each district has its own top federal prosecutor, the United States Attorney, who runs an office staffed by Assistant U.S. Attorneys (AUSAs). There are over 2,300 AUSAs in the U.S., and big offices, such as the SDNY, may have upwards of 200.
The U.S. Attorney is a presidential appointee. Let’s pause on that for a moment because it’s important to what follows. The district U.S. Attorneys are not appointed or hired by the AG. They are nominated by the president and must be approved by the Senate. You can discern the tension this can cause in terms of the org chart and supervisory authority.
In theory, the AG runs the Justice Department, and all district U.S. Attorneys are subordinate to the AG — basically, they report to the Deputy AG, who runs DOJ day-to-day and reports to the AG. Nevertheless, it is an overstatement to say that district U.S. Attorneys take their marching orders from the AG. Because they are presidential appointees, district U.S. Attorneys have a direct relationship with the president; and because they best know the conditions and bench in their districts, they tend to have lots of autonomy.
Matters are further complicated by the Senate. Under the Constitution (Article II, Section 2), officers of the United States must be confirmed by the Senate. This gives the Senate great influence over the selection of presidentially appointed officials, particularly senators in an appointee’s the home state.
To maximize its influence, the Senate traditionally follows what’s known as a “blue-slip” protocol, in which any appointee has to be acceptable to both the home-state senators or the Senate won’t consider the nomination. Consequently, in making nominations, presidents are heavily influenced by the home-state senators, particularly if one (or both) of them is a member of the president’s party.
By contrast, things can get difficult if, as in New York, both senators are from the opposition party. Normally, there is horse-trading: Everyone knows top prosecutorial jobs, judgeships, and other federal positions have to be filled if the government is to function properly, so the president has to give senators some of what they want to get the appointees the president wants. Normal politics can break down, however, if there is extreme hostility between the players. To put it mildly, there is no love lost between President Trump and New York’s Democratic senators, Chuck Schumer (the powerful minority leader) and Kirsten Gillibrand.
Removing Interim U.S. Attorney Berman
Under Article II of the Constitution, all executive power is reposed in the president. Any Senate-confirmed federal officer may be fired by the president. But only by the president. The AG does not have the power to fire a district U.S. attorney.
Again, practically speaking, this usually makes no difference. On DOJ matters, it is to be assumed that the AG speaks for the president. When the AG makes personnel moves, we should presume the president has either ordered or endorsed them. Still, it is technically true that AG Barr lacks the authority to remove a district U.S. Attorney. That is why, when Berman insisted that he was not stepping down, despite Barr’s announcement to the contrary, the president promptly fired Berman on Saturday.
The position of U.S. Attorney for the SDNY is the premier prosecutor’s job in the country. In terms of law enforcement overall, it is rivaled only by the AG and the FBI director in terms of national attention. In 1983, Rudy Giuliani held one of the highest-ranking federal law-enforcement offices in the country, criminal-division chief in the Reagan Justice Department. Yet, he left the coveted job in a heartbeat when the chance to be U.S. Attorney for the SDNY arose. The rest is history.
Berman, understandably, did not want to give up his prestigious perch. But his hold on it has always been tenuous. He was not a full-fledged appointee. All along, he was in an interim status.
Geoff was a solid AUSA in the SDNY (I overlapped with him but did not know him well). He is reportedly a Republican who donated to Trump’s campaign, and he was for a time Giuliani’s law partner. When Trump was elected, the Obama-appointed SDNY U.S. Attorney was Preet Bharara (a former colleague of mine, and deservedly highly regarded). President Trump initially signaled that he’d keep Bharara on (perhaps as an olive branch to Senator Schumer, for whom Preet worked on the Judiciary Committee), but there followed the cringe-inducing messy departure that has become a staple of the Trump years.
Former AG Jeff Sessions appointed Berman to replace Bharara on an interim basis. This was done under Section 546 of the laws controlling the Justice Department (Chapter 28 of the U.S. Code). That statute authorizes such interim appointments for 120 days. Reportedly, the president himself interviewed Berman, but never formally nominated him.
After 120 days, when Berman’s interim appointment expired, he was nevertheless retained by the judges of the SDNY. This was done pursuant to Section 546(d). This provision is an important part of the controversy, so I’ll quote it, highlighting the key part:
If an appointment expires …, the district court for such district may appoint a United States attorney to serve until the vacancy is filled. The order of appointment by the court shall be filed with the clerk of the court.
This statute verges on unconstitutionality — and, as we shall see, it would be unconstitutional if construed in the extravagant manner of Berman’s defiant Friday night statement.
The Constitution makes the president the chief executive, the sole source of executive power, and the only government official empowered to appoint federal officers, who must be Senate confirmed. A United States Attorney is a federal officer. Therefore, a court may not appoint a U.S. Attorney — at least a full-fledged one.
What about non-full-fledged? Well, Article II, Section 2, does make provision for the appointment of “inferior officers,” who need not be Senate confirmed. Congress is authorized to vest the power to appoint inferior officers “in the president alone, in the Courts of Law, or in the Heads of Departments” (emphasis added). Under the statute then, if we deem an interim U.S. attorney to be an inferior officer, a federal court may make the appointment.
Friday night, in announcing that he had not resigned, Berman elaborated, “I was appointed by the Judges of the United States District Court for the [SDNY]. I will step down when a presidentially appointed nominee is confirmed by the Senate” (emphasis added). It thus appeared that he was boldly interpreting Section 546(d) to say that, until a nominee is Senate-confirmed, no one — not even the president — has the power to remove him.
That would be a specious claim, so I hope he does not try to resist his dismissal by the president. To begin with, Section 546(d) does not say no removal can happen until “a presidentially appointed nominee is confirmed by the Senate.” It says an interim appointee gets to stay “until the vacancy is filled.” As Berman himself exemplifies, vacancies can lawfully be filled, temporarily, by non-confirmed appointees — either on an acting or interim basis.
Moreover, even if deemed an “inferior officer,” an interim U.S. attorney wields the power of a superior executive officer. Federal courts may not exercise executive power, nor may they foist on the president an officer to whom the president is unwilling to delegate executive power. It has been settled law for nearly a century — since Myers v. United States (1926) — that the president may unilaterally remove even Senate-confirmed appointees. A fortiori, the president may remove a mere inferior officer who is exercising the powers of a superior executive officer.
Finally, as with every other subordinate official in the Justice Department, Berman is (or was) subject to the Department’s guidelines. DOJ’s Office of Legal Counsel has long been of the (very sound) view that all U.S. attorneys — confirmed, acting, or interim — serve at the pleasure of the president. Berman is not an independent fourth branch of government. Once the president fired him, he was out, period.
It should not have come to this. It petulant for a U.S. Attorney to refuse to step down if the AG directs him to do so. The assumption should be that the AG is acting at least with the endorsement, if not at the direction, of the president. Furthermore, while critics have been all over Barr for purportedly “lying” when he issued a press release saying Berman was “stepping down,” this makes a sinister mountain out of a benign molehill. It is a conventional indulgence to the dumped public official to frame the removal as a resignation, or to couch it ambiguously, so it is unclear whether the official decided to leave or was pushed out.
As Barr said in Saturday’s letter to Berman, “I was surprised and quite disappointed by the press statement you released last night.” The AG indicated that he’d told Berman of the administration’s decision to make Clayton the full-fledged U.S. Attorney for the SDNY, and was “hoping for [Berman’s] cooperation to facilitate a smooth transition.”
Berman says he did not know he was being removed until he read about Barr’s Friday evening press release. Barr says he told Berman what was happening. If you want to say it was Barr’s job to get everyone on the same page, which clearly did not happen, that’s a fair criticism. But it is catty to say he “lied” because he tried to soften the impression that Berman was being kicked to the curb. While the AG wanted to keep Clayton in the government, he was not looking to push Berman out of it. Reportedly, Barr offered Berman the recently vacated post of Chief of the Civil Division at Main Justice. I don’t blame Berman for turning that down: He is a New York guy, he probably wanted no part of Washington (a common attitude — ahem — among New York guys), and after being SDNY U.S. Attorney, even on an interim basis, top DOJ positions are not as alluring. But if Barr was predisposed against Berman, why would he offer him a Main Justice job in which they’d be working closely together?
Why Now … and Why This Way?
It cannot be gainsaid, though, that the AG wanted Berman out at SDNY. Otherwise, he could simply have kept Berman in place until Clayton was confirmed. Democrats are going to have lots of questions about that. And in trying to scandalize Berman’s removal, they will try to exploit the choice of Clayton and the dubious plan — now apparently abandoned — to replace Berman with Craig Carpenito, the aforementioned DNJ U.S. Attorney.
Let’s start with Clayton. As Barr says, the SEC chairman is indeed a “distinguished New York lawyer.” He has never, however, been a federal prosecutor. At least facially, that makes him a peculiar choice. Nominees to be U.S. Attorney for the SDNY invariably have a few years of prosecutorial experience under their belts — almost always federal, and usually as an AUSA in the SDNY (not just because it’s a clubby club; the senators prefer it, and many SDNY judges were SDNY prosecutors).
Barr can rightly counter that Clayton has rich experience in securities law enforcement at the highest level. That closes a lot of the prosecutorial gap. Among the most vital parts of the SDNY gig is Wall Street (which is visible from the U.S. Attorney’s corner office). Prior prosecutorial experience is a good thing for a prospective U.S. Attorney to have, but it’s not a prerequisite. And let’s not forget, it’s not as if Barr and Trump were switching out a confirmed U.S. attorney for an unknown. Berman has good SDNY experience, but he was an interim — never even nominated, let alone confirmed. Clayton, by contrast, has been vetted by the Senate and served well in a top post where he gained highly relevant experience.
We should note that Barr’s Saturday letter does not reaffirm that Clayton will be nominated — though it doesn’t say he won’t. Barr told Berman that he “wanted the opportunity to choose” Clayton (emphasis added); and he said that Strauss would serve “until a permanent successor is in place.” It is unclear whether the AG was (a) implying that Clayton may no longer fit in the plan (or may have removed himself from consideration); or (b) just acknowledging that any nominee would have to win Senate confirmation while still anticipating that Clayton will be the nominee. We’ll see.
The Carpenito gambit was more problematic. He is not a full-fledged U.S. attorney, either. Like Berman, Carpenito was appointed by Sessions, never nominated by Trump, and then appointed by the DNJ’s judges. Barr’s plan was for Carpenito to become the SDNY’s acting U.S. Attorney until Clayton was confirmed (after the election, if ever); Carpenito’s DNJ deputy would take over the U.S. Attorney’s duties there until he returned.
DOJ was clearly going to argue that these moves were authorized by the so-called Vacancies Act (codified at Section 3345 of Title 5, U.S. Code). That statute instructs that when a vacancy in a confirmation position occurs, it may be temporarily filled by the first deputy of the former official. Or, in the alternative, the president may appoint “a person who serves in an office for which” presidential appointment and Senate confirmation are required. As a literal matter, Carpenito fits that bill. But the patent purpose of the requirement that the acting official already be serving in a confirmation position is the expectation that he has already been nominated by the president and vetted by the Senate. That is not so in Carpenito’s case.
It was very likely that Democrats would argue that Carpenito was not eligible. They would also clearly make two other claims. First, the Vacancy Act default would have called for naming Berman’s deputy, Strauss. So, why was Barr so determined to pass over the current SDNY leadership that he would disrupt the operation of the DNJ to do it? Second, Carpenito is a protégé of former New Jersey Governor Chris Christie, an informal Trump adviser (he was hired by Christie as a prosecutor when Christie was DNJ U.S. Attorney, and he represented Christie in the Bridge-gate fiasco — in which Christie was never charged). So, Trump critics will contend, the plan must have been to decapitate SDNY leadership so a loyalist could be installed to block any prosecutions that could hurt Trump between now and Election Day.
To be clear, I am not buying these theories. Knowing the SDNY as I do, I cannot believe it would tolerate political interference. Carpenito has a good reputation; and while I have my political disagreements with Governor Christie, he was a good U.S. Attorney whose office pushed hard on political corruption cases. In the absence of solid evidence of malfeasance, it is unfair to engage in the kind of innuendo we’re already hearing. That said, it was prudent for Barr to rethink the plan and have Strauss become Berman’s replacement. She is clearly eligible under the Vacancies Act. She is a highly-regarded, longtime veteran SDNY prosecutor. She is already overseeing the ongoing work of the office. She also worked on the Iran-Contra independent counsel investigation. No one could credibly accuse her of being in the tank for a Republican president.
No Evidence of Political Interference in SDNY’s Work
Democrats will undoubtedly use Berman’s Friday night statement to portray Barr’s move as nefarious. Before he was told the president had removed him, Berman said he was determined to stay on so that the SDNY’s investigations would “move forward without delay or interruption.” As they “pursue justice without fear or favor,” SDNY prosecutors could count on him, he added, “to ensure that this Office’s important cases continue unimpeded.”
Note that Berman did not claim anyone had actually tried to impede the cases; he implied that this might happen if he were not there to ward it off. That’s a bit melodramatic.
The SDNY, besides its notorious independent streak, staffs its most significant cases with top-notch, strongminded prosecutors, who are backed up by a seasoned, strongminded chain-of-command (here, including Audrey Strauss). The Justice Department’s adroit leadership is well aware that they would not be intimidated. No one stopped the SDNY from prosecuting Trump “fixer” Michael Cohen (or from having Cohen, when he pled guilty, implicate candidate Trump in orchestrating hush money payments to women claiming liaisons with him). No one stopped the SDNY from charging Lev Parnas and Igor Fruman, business associates of Giuliani’s who are tied to his activities in Ukraine. (Rudy has not been accused of any wrongdoing; reports say the investigation is continuing.)
The new John Bolton memoir claims that the president was addled by the investigation of a Turkish financial institution, Halkbank, and promised Turkey’s strongman, Recep Erdogan, that he would intervene once he got the “Obama people” out and his own people in at the SDNY. But Bolton says that happened in 2018. In 2019, the SDNY indicted Halkbank. In addition, two Erdogan confidants have already been convicted as a result of the investigation.
Personally, I do not approve of our alliance — if you insist on calling it that — with Turkey. And as I’ve said on other occasions, a president should never bad-mouth U.S. officials in front of foreign governments — especially jihadist supporters who habitually bad-mouth America. Nevertheless, I am not the president. I was, however, a prosecutor in cases that had foreign-policy implications. I can thus assure you that presidents sometimes must balance other national interests against the Justice Department’s interest in enforcing the laws. Turkey (however infuriatingly) is a NATO country, and we (however improvidently) have military assets there of immense strategic importance. Our government, in addition, has been trying to pry Ankara away from its dalliances with Moscow and Tehran.
If a president made a decision to halt a criminal case to appease an important country as part of a strategic judgment that doing so was in the best interests of the United States, there would be nothing wrong with that. Democrats who suggest otherwise should think about President Obama’s undermining of a terrorism investigation of Hezbollah because it would have complicated his Iran nuclear deal. The chief executive gets to decide whether DOJ’s enforcement operations must yield to other policy imperatives — even if some of us think the president’s policy is ill-conceived.
All that said, though, there is currently no reason to believe the SDNY’s aggressive Halkbank investigation has been impeded by Main Justice.
To sum up, the Justice Department knows the SDNY is not going to be pushed around. Its top prosecutors invariably have lucrative job prospects. They work at the SDNY because the work is good and consequential. They usually don’t need the job, though. If someone tried to interfere in their work, they would have no compunction about objecting. And in New York, going public against the Trump administration if there were colorable reasons to allege wrongdoing would be perceived by the legal community and the media as an act of heroism, and rewarded as such.
The attorney general, a man of sophistication and deep experience, knows this. I don’t know how he interacts with the SDNY. If he has been asking questions about the legal and evidentiary bases for some of the office’s cases, that is a perfectly appropriate thing for the head of the Justice Department to do. But there is no reason to believe that Barr has stopped or would stop the SDNY from pursuing valid cases. Even if there were reason to believe he was so inclined, the AG well knows how foolish doing so would be. SDNY prosecutors would take their complaints public. The damage to the president and his administration from that would almost surely be worse than whatever might come out of these prosecutions.
Let’s take a deep breath. Congress is already demanding answers to the questions raised by Geoff Berman’s removal as U.S. Attorney for the SDNY. None of the people involved in this escapade is a shrinking violet. Soon enough, we’ll know why this happened.