Law & the Courts

Removal of SDNY’s Interim U.S. Attorney Is Washington, Not Watergate

Attorney General William Barr speaks during a roundtable at the White House in Washington, D.C., June 15, 2020. (Leah Millis/Reuters)
Democrats weave a scandal out of an overdue personnel move.

On Saturday evening, I posted an extensive column on the homepage, exploring this weekend’s contretemps between Attorney General William Barr and Geoffrey Berman, the now-former interim United States Attorney for the Southern District of New York (where I was a prosecutor for nearly 20 years).

The more one looks at this, the more clear it becomes that Democrats are contorting a long-overdue personnel move into a scandal. This is not an accident. We are four months from Election Day, and Barr has indicated we may be closer to some sort of reckoning in Connecticut U.S. Attorney John Durham’s investigation. Barr’s deservedly stellar pre-Trump reputation notwithstanding, the president’s opposition is determined to discredit him and, derivatively, any malfeasance uncovered by Durham’s scrutiny of the Obama administration’s Trump-Russia probe.

It is dysfunctional of the Trump administration not to have installed a confirmed SDNY U.S. Attorney serving a four-year term. The post is among the most consequential in the Justice Department — indeed, in the government. Attorney General Barr has been trying to reestablish normalcy in that regard. For the reasons I laid out in the column, however, it is not easy to get nominees confirmed when Democrats hold both Senate seats in the state where the district is located.

It looks like Barr, with the president’s encouragement, wants to fill the job with someone the administration both likes and believes could get confirmed: SEC chairman Jay Clayton. He was easily confirmed (61-37) with bipartisan support for the SEC post (in the Trump years, getting nine Democratic senators to support a nominee is no mean feat). He’s done a good job, and he was ready to move on, but said he’d stay in government if given the coveted job of SDNY U.S. Attorney. The administration considers that post unfilled. There has not been a Senate-confirmed SDNY U.S. Attorney since 2017, when Trump dismissed Preet Bharara, President Obama’s appointee. Contrary to the impression conveyed by coverage of this controversy, Berman was not the U.S. Attorney; he was an interim occupant, keeping the seat warm due to a court order that was to stand only until the president picked someone to replace him — either a confirmed appointee or another interim pick (if eligible under applicable statutes).

It is not a knock on Berman or his staff to say Trump and Barr want them replaced. If the president had wanted Berman in the job, he would have nominated Berman. He did not. That does not necessarily mean the Trump administration thinks SDNY leadership is doing a bad job, or that the SDNY must be investigating the president if Barr wants to replace Berman. It simply means that Berman and his team are not the president’s or the attorney general’s choice to run an office of significance to the administration.

President Obama would not have tolerated a situation in which an important U.S. attorney’s office was not being run by his chosen appointee. It was, moreover, President Clinton who fired U.S. attorneys across the country (all appointed by Republican presidents over the preceding twelve years) upon assuming office. This broke the tradition of presidents’ permitting U.S. attorneys — even those appointed by the opposition party — to finish their four-year terms. Democrats can’t have it both ways. They can’t expect carte blanche to clean house when they come into power, and then scream “Corruption!” when Republican administrations install their own chosen prosecutors.

The SDNY has a storied tradition of independence, but it is independence with a catch: The U.S. Attorney is expected to be the president’s own appointee. Yes, DOJ gives SDNY a wide berth. The office has high-caliber personnel with very experienced supervision. No one knows their cases better than they do, and it is not Main Justice’s function to run cases. The SDNY has experience that is just as rich, sometimes richer, than Main Justice’s in such big-ticket federal-enforcement areas as organized crime, terrorism, narcotics trafficking, and securities and commodities investigations. The SDNY also has a very powerful district court (many judges are former SDNY prosecutors), which expects things done a certain way. It is in everybody’s interest that the office have good relations with the court.

All that said, the “independence” image is overstated, despite its undeniable place in SDNY lore.

As one would expect, a president’s appointed U.S. attorney is generally in lockstep with a president’s appointed attorney general. Disagreements happen, of course, but they are rare. Furthermore, no district U.S. attorney’s office, not even the SDNY, can afford to make a habit of being a problem child. Main Justice holds too many cards. It is the arbiter of inter-district turf wars — which you tend to lose if you’ve made yourself a too much of a nuisance. In many areas, Main Justice’s approval is required before the district U.S. Attorney may act. In reality, most of what goes on between the SDNY and Main Justice is cordial consultation and cooperation.

That consultation and cooperation begins with having the administration’s own chosen people in the top jobs. Administrations of both parties insist on that. The latest reporting illustrates why. There was tension last week when Berman refused to sign a letter from DOJ’s Civil Rights Division to New York City’s mayor, left-wing extremist Bill de Blasio. The letter complained about the double standard by which the City permits thousands to gather in protest but drastically restricts the free exercise of religion. Upholding religious liberty has been a Trump administration priority. The Justice Department is entitled to enforce the president’s lawful policy — including by directing U.S. attorneys across the country to support the effort. Berman, however, reportedly called the letter a “political stunt” that would strain the SDNY’s relationship with City Hall. He is entitled to his opinion . . . but no one elected him to anything. While DOJ is downplaying the dispute as a factor in Berman’s ouster, neither a Democratic administration nor its water-carrying media would stand for an interim appointee’s thwarting of administration policy.

The narrative peddled by New York Democrats, such as Senate minority leader Chuck Schumer and House Judiciary Committee chairman Jerry Nadler, that Barr and Trump pulled off the equivalent of Watergate’s “Saturday Night Massacre” is laughable. There is no reason to believe that the SDNY is conducting an investigation at this point that would threaten the president that way. As I explained in the column, there is also no reason to believe SDNY prosecutors would abide interference in any investigation touching on some associate of the president. Moreover, in his letter conveying Trump’s dismissal of Berman on Saturday, Barr closed by saying:

Your [i.e., Berman’s] statement [on Friday night, refusing to step down] wrongly implies that your continued tenure in the office is necessary to ensure that cases now pending in the [SDNY] are handled appropriately. This is obviously false. I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.

I’d note that Mike Horowitz was appointed DOJ’s IG by President Obama. In addition, he is a former longtime SDNY prosecutor with extensive experience investigating public-corruption cases. I’d further note that, when Senator Schumer said he wanted a DOJ Office of Professional Responsibility (OPR) probe to determine if Berman’s firing was politically motivated, Barr had already pre-approved an IG investigation if there are any political-interference claims by SDNY supervisors. An IG investigation is more independent: The IG reports to Congress as well as the AG; OPR reports to the AG.

The narrative that Barr is intervening for political reasons on behalf of Trump’s associates is specious. He intervened in the Roger Stone case when the trial prosecutors recommended an unduly harsh nine-year sentence. He did not seek to dismiss Stone’s felony convictions, and the court ended up finding that a three-and-a-half-year sentence was appropriate — the very sentence that Barr indicated would have been more in line with the gravity of the offenses, while also noting that the decision was up to the judge, not the Justice Department.

Barr directed that the prosecution of Michael Flynn be dismissed only after assigning an experienced prosecutor and former FBI agent (St. Louis U.S. Attorney Jeff Jensen) to review it. That is because stunning irregularities regarding the investigation of Flynn had come to light. We now know: There was no predicate to investigate Flynn; the FBI consulted White House political leadership in continuing the investigation even after the Bureau had determined it should be closed; the FBI did not have a good reason to interview Flynn and schemed to do so outside Justice Department and executive branch protocols; the Bureau grossly violated its procedures in editing the Flynn interview report; and so on.

The Justice Department concluded that it would not prevail if it had to take the case to trial — i.e., Flynn could not be proved guilty beyond a reasonable doubt. Meanwhile, Flynn’s new counsel had moved to withdraw his guilty plea and made credible allegations that exculpatory information had been withheld and that Flynn’s plea had been coerced (by prosecutors who threatened to indict his son and concealed from the court their agreement not to prosecute the son if Flynn pled guilty). In the Flynn case, all Barr has done is dismiss a prosecution that should never have been brought in the first place, which was based on an investigation that should never have happened.

Democrats and their media allies, who so zealously championed the “Trump collusion with Russia” political narrative for over three years, are concerned about the investigation being conducted, at Barr’s direction, by Connecticut U.S. Attorney John Durham. They are trying to bloody Barr in the hope that, if Durham’s investigation results in indictments and/or a stinging report, those will be received as the product of a political witch hunt. They lambasted Trump for talking down the Mueller probe in those terms, yet here they are doing the same thing.

When Obama and Clinton remove U.S. attorneys, Democrats shrug and say, “Elections have consequences.” When Bush and Trump remove U.S. attorneys, Democrats say it is Watergate revisited. No one should be fooled. What happened in New York over the weekend was a personnel move. The SDNY’s cases have not been affected.

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