The media are excitedly reporting a standoff between the Trump administration and the U.S. Attorney for the Southern District of New York, Geoffrey Berman.
On Friday, Attorney General William Barr announced that Berman would be leaving the position, and that President Trump was nominating Jay Clayton for the job. Clayton is currently the chairman of the Securities and Exchange Commission.
Barr’s announcement said that Clayton would be leaving the SEC job and Barr thought he’d be a good fit for the SDNY post. (Critics are expressing doubt about that, saying Clayton doesn’t have the requisite experience as a litigator.)
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Berman responded swiftly with a statement that he has no intention of stepping down, and won’t until a nominee confirmed by the Senate is ready to take his place.
“I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York.
“I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor — and intend to ensure that this Office’s important cases continue unimpeded,” he said in a statement late Friday night.
What Berman’s statement refers to is his interim appointment by the Southern District judges in April 2018. After Preet Bharara was removed from the SDNY job, the Attorney General (then Jeff Sessions) appointed interim attorneys under U.S. statute until January 2018, when Berman was put in the job. By statute, if he was left in the job without a Senate-confirmed replacement for 120 days, the district court was then authorized to appoint a U.S. Attorney. The SDNY court appointed Berman, and he still serves in the position.
Berman’s reading of the statute seems to be that at this point, he can only be replaced by a Senate-confirmed Attorney (i.e., the Attorney General can’t appoint someone else to replace him). According to the Wall Street Journal, a 1979 ruling from the Justice Department states that the president can remove a court-appointed U.S. Attorney, but the Attorney General can’t.
So Barr’s move seems odd. He doesn’t have a trail of stupid moves in his wake, and it would be out of character for him to make one now. (Berman seemed interestingly primed to come out immediately with his strongly worded resistance statement, for that matter. If he really didn’t see this coming, a two-hour turn-around, especially with a determinedly adversarial tone to it, is impressive.)
At any rate, Barr’s announcement indicated that the U.S. Attorney for New Jersey, Craig Carpenito, would be Acting USA for the SDNY starting on 3 July, until Jay Clayton can be confirmed. That date for Carpenito, also interestingly, is two weeks away. It seems like a long time to give a recalcitrant Berman, if he’s to be let back in the building.
As for the why of this, the media are of course keying on Berman’s investigations into Rudy Giuliani and Giuliani’s Ukraine fixers, Lev Parnas and Igor Fruman. The suggestion is naturally that Barr is trying to intervene – by implication, improperly – on Trump’s behalf.
Objectively, if there were a real potential for that to be a “takedown” level probe vis-à-vis Trump, it would already be evident. Sparing Giuliani or his henchmen isn’t worth shooting a silver bullet.
Some media outlets are mentioning that Berman continues the investigation of Jeffrey Epstein as well, after Epstein’s supposed suicide while in federal custody in August 2019. The mainstream media are of course not mentioning that critics questioned how Berman let Epstein perish in custody on his watch. The MSM focus is on framing Epstein as an associate of Trump’s.
At any rate, taking precipitate action to replace Berman is about something. It’s not just a general drain-the-swamp move, which could be done more slowly (and indeed has been, in many cases, for months at a time).
It may be that Berman has some action in preparation that would jeopardize what John Durham is doing. That seems like the only thing big enough to justify an overtly discordant move of this kind. Berman’s investigations are bound to overlap with Durham’s as regards at least some of the characters involved. The implication here would be that Berman could knowingly use his role to spike Durham’s investigation. (Whether that might have anything to do with the Epstein matter can be nothing more than speculation at this point.)
It would be foolish to insist that cross-vulnerability of cases – Durham’s and Berman’s – is not a possibility, or that there couldn’t be any conflict of major interests there. Current conditions tell us otherwise. It is blindingly obvious that a bureaucratic war is being waged for the halls of the federal government: a war between the duly elected Trump administration and the career officials and revolving-door “deep staters” who oppose the Trump appointees. Durham’s charter is to probe the career officials and deep staters: the ones who spied on dozens of Americans and may well have collaborated with multiple foreign interests to subvert the 2016 election and then undo its outcome. They’re fighting with everything they’ve got.
It may be something else in that category, of course; something not visible from the outside. The story will no doubt continue to develop. It being the weekend now, we aren’t likely to know more until Monday. But this has the feel to it of a major hinge-point.
