Criminal Justice & the Rule of Law

Five Questions About Geoffrey Berman’s Removal

Benjamin Wittes
Sunday, June 21, 2020, 8:26 PM

Congress should investigate what just happened in the Southern District of New York.

Attorney General Barr speaks at the launch of Voluntary Principles to Counter Online Child Sexual Exploitation and Abuse, March 5, 2020. (Justice Department/ Domain)

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The president’s removal of Geoffrey S. Berman as U.S. Attorney for the Southern District of New York this week requires congressional investigation. Congress should ask questions quickly. It should ask them aggressively.

Some of these questions, at least, are ones a congressional committee might address by having Berman—if he is willing—promptly up to Capitol Hill to discuss his dismissal, either privately or in a public hearing. Some are questions on which it will have to fight the attorney general and the president for answers.

Here are five key questions to which Congress should demand answers:

First, why was Berman removed?

The most innocent explanation for the move against Berman is that the president recently golfed with the head of the Securities and Exchange Commission (SEC), Jay Clayton, who has expressed interest in Berman’s position. So the administration moved to remove Berman to make room for someone who is tight with the president. The president has reportedly had a bee in his bonnet about Berman for a while now, so it’s possible Attorney General William Barr sought to kill two birds with one stone—getting a Trump-irritant out of a sensitive role and replacing him with someone with whom the president is friendly.

But given the president’s history of abuse of law enforcement, it would be foolish to ignore more menacing possibilities. It may be, for example, that Berman’s removal was a retaliatory gesture similar in character to the recent removals of inspectors general, the firing of Jeff Sessions and the forced exit of all people named Vindman from the National Security Council staff.

The president is vindictive, particularly toward law enforcement officials, and Berman’s office has done a number of things that have upset Trump. It prosecuted Michael Cohen, Trump’s personal lawyer—labeling the president “Individual 1” in the process—for, among other things, a scheme in which Cohen coordinated the payment of hush money to women who claimed to have had sex with Trump. (Berman was recused from that matter.) It also prosecuted Halkbank, a Turkish government-owned bank Berman’s office indicted for violating sanctions against Iran. Former National Security Adviser John Bolton recently claimed in his book that Trump personally promised Turkish President Tayyip Erdogan that he would intervene in the case.

Writes Bolton, “Trump ... told Erdogan he would take care of things, explaining that the Southern District prosecutors were not his people but were Obama people, a problem that would be fixed when they were replaced with his people.” (Berman is, in fact, not an Obama person, but never mind that.)

And, of course, the Southern District also has been engaged in the current investigation of another presidential lawyer, Rudy Giuliani—a matter that has been quiet recently, but about which there is no indication that the office has wrapped up its work. So there’s enough water under the bridge that it’s possible Berman’s removal was simply revenge.

This leads to the most troubling possibility and the second key question: Why was Berman removed now?

Specifically, was the removal an effort to interfere with any specific investigation? This is not an idle question. Trump, after all, fired FBI Director James Comey because of his ongoing handling of the Russia investigation. Bolton’s book accuses the president of engaging in “obstruction of justice as a way of life.” And the Mueller report is replete with examples of Trump’s trying to interfere with the Russia probe in a number of different fashions. It’s certainly the sort of thing he would do.

No evidence has yet emerged that there is any pending investigation with which Trump or Barr may have been specifically seeking to interfere. But Berman has intimated that this may be the case. In his June 19 statement denying that he had resigned, Berman concluded by writing, “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” (emphasis added). This could be merely prosecutorial boilerplate. It also could be a flashing red light. Congress should clarify quickly that it is the former, not the latter.

A third key—and related—question: Did Berman feel political pressure with respect to any investigation?

When Preet Bharara was removed as the head of the Southern District office at the beginning of the Trump administration, he refused to resign in response to a request from the attorney general—a decision that seemed odd to me at the time. I did not understand it until Bharara told the backstory some time later—a backstory that included efforts by the president to court him and call him directly on the telephone. In that context, and in the context of Comey’s similar stories, Bharara’s actions made a great deal of sense: fearing political pressure with respect to the performance of his job, he refused contact with the president and refused to step down when asked.

Berman should be given the opportunity to address the question of whether he similarly felt politically pressured in his job, either generally or with respect to any particular case. This may be a difficult subject for him to discuss, as investigative confidentialities may legitimately require his silence. But there is some altitude at which he can surely address the matter. Was he at any time subject to inappropriate pressures from the executive branch hierarchy in his role as U.S. attorney, a member of Congress might ask? And critically, does he have any reason to believe that any such pressure, if it occurred, is related to his dismissal?

A fourth important question: Who precisely was responsible for Berman’s dismissal?

Berman himself might not know the answer to this one. But it’s important that Congress look into it. Barr appears to have been the main actor, meeting with Berman and requesting that he step down and take the helm of the Justice Department’s Civil Division or the SEC. Barr reported in his letter to Berman on June 20 that “I have asked the President to remove you as of today, and he has done so.”

On the other hand, the entire episode, as mentioned above, followed a recent golf outing at Bedminster between the president and Clayton. And, as noted above, the president is not fond of Berman. So was this a situation in which Barr was acting at Trump’s behest or a situation in which Trump was acting at Barr’s behest?

The question is important because it goes to whether this is another episode of Trump’s abuse of law enforcement, or whether it reflects some effort on the part of Barr himself to impose control over the Southern District.

The final key question is the extent to which and the reason that Barr has been less than truthful about the events in question. It is rather rare for the attorney general to issue a public statement about a U.S. attorney that is immediately contradicted on the Justice Department’s own website by that very U.S. attorney. But that is what happened on the evening of June 19, when Barr announced in a press release that Berman “is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York.” Berman almost immediately issued a press release declaring that “I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney. I have not resigned, and have no intention of resigning, my position.” Barr’s letter the next day did not dispute Berman’s account of the matter:

When the Department of Justice advised the public of the President's intent to nominate your successor, I had understood that we were in ongoing discussions concerning the possibility of your remaining in the Department or Administration in one of the other senior positions we discussed, including Assistant Attorney General for the Civil Division and Chairman of the Securities and Exchange Commission. While we advised the public that you would leave the U.S. Attorney's office in two weeks, I still hoped that your departure could be amicable.

As Bharara put it in a New York Times op-ed, “In my experience, government officials don’t lie about the intentions of others when they are acting in good faith.”

The president himself has also contradicted Barr on an important matter—though Trump himself is so prone to lying and making up facts that this dispute raises fewer questions about Barr’s candor. While Barr’s letter to Berman emphasized that the president had removed Berman at Barr’s request, the president denied playing any role at all. “That’s all up to the attorney general,” Trump said on June 20. “We have a very capable attorney general, so that’s really up to him. I’m not involved.”

Bharara writes in his op-ed that “[w]ithin the Department of Justice, hardworking public servants—in the Southern District of New York and elsewhere—are angry, dismayed and demoralized. I’ve spoken to many of them this weekend. They are disheartened by the bad faith of Bill Barr and his determined efforts to undermine prosecutorial independence.”

Congress owes these public servants—and the public at large—answers about what happened in this bizarre episode. Having a frank conversation with Berman would be a good place to start.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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