Criminal Justice & the Rule of Law

What Did Geoffrey Berman Tell the House Judiciary Committee?

Jacob Schulz
Thursday, July 16, 2020, 3:09 PM

The former U.S attorney wouldn’t discuss active cases or speculate on the motivations of Main Justice. But he did offer a detailed timeline of the frenzied 30 hour period during which he was dismissed.

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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Geoffrey Berman, former U.S. attorney for the Southern District of New York, interviewed with the House Judiciary Committee on July 9 and the committee released the transcript of the interview this week.

The former head federal prosecutor in Manhattan became a household name after the Justice Department clumsily—and very publicly—relieved him of his duties over the course of a turbulent 30 hour period beginning the evening of June 19.

The public already knew about the most headline-grabbing comments from Berman’s testimony. In his opening statement, released the day of his testimony, the ousted prosecutor told the committee that Attorney General Bill Barr had told Berman that, “if [he] did not resign from my position [he] would be fired.”

During the interview, Berman expressed concern about the attorney general’s behavior throughout the ordeal. Referring to Barr’s decision to release a memo that erroneously stated that Berman had resigned and would be replaced on a temporary basis by someone outside the office, Berman told committee Chair Jerrold Nadler, “I do not know what the Attorney General's motives were, but the irregular and unexplained actions by the Attorney General raised serious concerns for me.”

The full interview paints a richer picture of the events surrounding Berman’s firing.

Members and counsel peppered Berman with questions on the events surrounding his removal. Both sides pressed Berman to talk about the role of ongoing investigations in his ouster and about the reasons for his dismissal. But Berman refused to let his interlocutors drive the agenda. He constantly pushed back on lines of inquiry that went beyond a pre-established boundary for the interview: the “immediate circumstances of your termination as U.S. attorney over the course of June 19th and June 20th.” Berman emphasized that he established this parameter in consultation with the Department of Justice: “remember,” Berman noted, that the conditions were created “in consultation with the Department of Justice…to get their signoff for my testimony.” Berman shot down meandering or speculative questions with some permutation of “I'm going to decline to answer that question because it's outside the parameters established for the interview.”

That precondition ensured a narrow surface area for the interview, and Berman exhibited near unyielding fidelity to that boundary. This meant that much of the substance of Berman’s comments amounted to a detailed timeline of the firing.

Before Berman’s interview, here’s what we knew for certain: Late in the evening of June 19, Barr released a statement that Berman was “stepping down” as U.S attorney. The statement details that the President planned to nominate Jay Clayton Berman, current chairman of the Securities and Exchange Commission, as Berman’s long-term replacement and that the President “appointed Craig Carpenito, currently the United States Attorney for the District of New Jersey, to serve as the Acting United States Attorney for the Southern District of New York” pending Clayton’s Senate confirmation.

Berman issued his own statement around two hours later, rebutting Barr: “I have not resigned, and have no intention of resigning...I will step down when a presidentially appointed nominee is approved by the Senate.”

Barr released a second statement the following day, this time reporting not Berman’s resignation but his firing. Barr’s letter details, “Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so.” This about-face letter also diverged from the first by naming a different immediate successor for Berman. Per the Saturday statement, Berman would be replaced not by Carpenito, but by Berman’s deputy, Audrey Strauss.

Later that day, a reporter asked President Trump why he fired Berman and the president distanced himself from the firing. He replied, “That's all up to the attorney general...I'm not involved.”

The events of the day apparently placated Berman. At 6:17 p.m. on that Saturday, he released his own second statement explaining that “in light of Attorney General Barr's decision to respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney, I will be leaving the U.S. Attorney's Office for the Southern District of New York, effective immediately.”

Various reporting has tried to fill in some of the gaps in what happened during the period leading to Berman’s departure. Berman’s remarks add some clarity to the tick-tock.

What follows is a timeline of the story as told by Berman in his interview.

Timeline of the Firing, According to Berman

June 18, 2020: Berman receives an email “from a member of the Attorney General's staff” indicating that Barr wanted to meet with Berman the following day at the Pierre Hotel in Manhattan. The email does not explain the purpose of the meeting.

June 19, 2020, 12:10 p.m.: Berman meets with Barr in the Attorney General’s hotel suite.

Will Levi, Barr’s chief of staff, is also present at the meeting but “did not speak.” The meeting is nominally a lunch meeting, but the sandwiches on the meeting table go uneaten.

Barr tells Berman that he wants to “make a change in the Southern District of New York.” The Attorney General asks Berman to resign in order to allow Clayton to become the new permanent U.S. Attorney. Barr offers Berman a new landing spot: should he resign, he can become the new Assistant Attorney General for the Civil Division, replacing the recently departed Jody Hunt. Later in the meeting, Barr counsels Berman that the job at the helm of the Civil Division would be “a good resume builder.”

Berman pushes back on the offer for a role-change.

He asks Barr if the attorney general took issue with his performance at the southern district. No, Barr replies, the move “was solely prompted by Jay Clayton's desire to move back to New York and the administration's desire to keep him on the team.” Berman tells Barr that Clayton is “an unqualified choice for U.S. attorney for the Southern District of New York because he was never an AUSA and had no criminal experience,” a claim Berman reiterates in response to questioning from minority counsel.

Minority counsel Castor asks Berman about Barr’s offer: “There was no quid pro quo proposed, correct?”

Actually, Berman replies, “You know, he wanted me to resign to take a position. I assume you could call that a quid pro quo. You resign and you get this, that would mean quid pro quo.”

Berman says he “told the Attorney General that there were important investigations in the office that I wanted to see through to completion.” Berman tells Barr that the Attorney General’s request to substitute Clayton into the southern district job reminded him of a change-up earlier this year at another high profile U.S. attorney slot: “I compared his request for my resignation to what happened with the U.S. Attorney's Office in the District of Columbia where the U.S. attorney resigned and was replaced with someone from outside that office instead of the first assistant.” Berman was referencing Barr’s move in late January to replace former U.S. attorney Jessie Liu with Timothy Shea, one of Barr’s counselors. (President Trump had nominated Liu for an undersecretary role in the Treasury Department, before withdrawing her nomination in mid-February.) Berman tells the committee that his aim in referencing Liu’s removal was to “signal to the Attorney General that I was not going to resign so that he could disregard normal procedure and appoint someone from outside the Southern District as acting head instead of our deputy U.S attorney.” Berman expresses concern that “replacing me with someone from outside the district would have resulted in the disruption and delay of the important investigations that were being conducted.”

Barr then delivers the ultimatum: resign or you’ll be fired. Barr mentions to Berman that he’d think about other government jobs for Berman, but Berman tells the attorney general that “there was no job offer that would entice me to resign.” Berman later uses that same word, explaining what he perceived the attorney general was doing in offering him the Civil Division job, saying “I believe the Attorney General was trying to entice me to resign so that an outsider could be put into the acting U.S. attorney position at the Southern District of New York, which would have resulted in the delay and disruption of ongoing investigations.”

Despite his reservations about Clayton’s preparedness for the job, Berman assures Barr that if the Senate confirmed the SEC chairman, Berman would step down. He reports telling Barr “Look, if he's nominated and confirmed, I'm stepping away without a peep. I respect the process. I respect the President's prerogatives to nominate and confirm...If the Senate passes on a candidate, I'm stepping away, and I told the Attorney General, I won't make a sound.”

The attorney general asks Berman for his phone number so that they can talk again later in the day. Berman obliges but emphasizes that his position wouldn’t change.

The meeting ends after roughly 45 minutes.

June 19, 2020, sometime after the lunch meeting: After the hotel meeting, Berman calls members of his executive team at the southern district. The interviewers press Berman on how many people he talked to, but he refuses to specify.

Berman also calls his personal attorneys. Berman explains that he makes this call because if he is fired, he “wanted to be in a position to immediately challenge that firing in court in order to maintain the ongoing investigations without disruption.” Minority counsel Steve Castor asks Berman if anyone told him “he had a great likelihood of success on the merits if [he] were to litigate.” Berman replies, “I liked my chances.”

June 19, 2020, 4:44 p.m.: Berman misses a call on his cell phone from a D.C. number that turns out to belong to the Attorney General.

June 19, 7:21 p.m.: Berman dials up the number from which he received the earlier missed call and Attorney General Barr picks up the phone.

Berman tells “the Attorney General that [his] mind was the same and that [he] wanted until Monday to have a final conversation.” Berman explains to Barr that the extra day “would allow [him] to discuss the situation with [his] entire executive staff.” The attorney general asks Berman why he needs to talk it over with his executive staff. “This is about you,” Barr asserts. Berman replies that, no, “It is about the office.”

Barr offers Berman the chance to move to a different high-profile government role. The attorney general proposes a one-for-one swap between Berman and Clayton: should Berman step down, he can become the chairman of the SEC. Berman is unimpressed: “I told him my position was unchanged and that I wanted to wait until Monday to have our final conversation.” The committee pressed Berman on the reason why he wants to delay the follow-up call. “I thought that the longer I could put off this kind of final conversation the better,” Berman explained. The delay, in his view, “would give the Attorney General an opportunity to reconsider his plan and back off, and it would give me an opportunity to prepare the office and my full executive staff for a possible disruption.”

The attorney general shoots down Berman’s preferred timeline, telling the U.S. attorney that he will call him the following day, though he did not specify any particular time for the conversation. The call lasts only three minutes. It is the last time Berman speaks with Barr or anyone on his staff.

June 19, “sometime after 9:14 p.m.”: Berman becomes aware of Barr’s statement saying that the U.S. attorney has resigned and will be replaced on an acting basis by the U.S. attorney for the District of New Jersey, Craig Carpenito, and then on a permanent basis by Clayton.

After seeing Barr’s announcement, Berman checks his phone records to make sure he hasn’t missed a call from the attorney general or anyone on his staff. That search turns up empty: “there was no email, text message, or voicemail on either my personal phone or my work phone between my conversation with the attorney general in the afternoon of the 19th and the release of the Attorney General's press release, the evening of the 19th.”

The statement troubles Berman, particularly because it seeks to install Carpenito as Beman’s immediate successor, instead of Berman’s deputy, Audrey Strauss.

He tells the committee, “The appointment of Carpenito as acting U.S. attorney or anyone outside of the office would have been unprecedented, unnecessary, and unexplained, and would have resulted in the delay and disruption of the office's investigations.” Berman explains that for “about the past 70 years every Southern District of New York U.S. attorney has been succeeded by his or her deputy or the next U.S. attorney and not by an outside acting U.S. attorney, as the Attorney General wanted done with Carpenito.” Minority counsel Castor pushes back on Berman’s description of the history. Castor noted that Benito Romano, who became acting U.S attorney after Rudy Giuliani left the role, had been at a law firm before assuming the acting role. Yes, Berman says, but Romano was Giuliani’s deputy prior to entering private practice, so he was “completely familiar with all the investigations that were going on in that office. So that when Mr.Giuliani left, everything continued without disruption or delay.”

During the interview, Berman keeps coming back to his bewilderment that Barr would try to slot in Carpenito as his immediate successor. Berman worries that “if Carpenito had come in as acting U.S. attorney after my firing and the unprecedented bypassing of the deputy, it would've been a huge blow to the office's morale and may have resulted in AUSAs resigning, which also would have impacted our investigations.” Berman is also dubious of anyone’s capacity to be dual-hatted as the U.S. attorney for the Southern District of New York. “Carpenito was retaining his position as U.S. attorney for New Jersey as well as being acting U.S. attorney for the Southern District. The U.S. attorney for the Southern District of New York is not a part-time position.”

Berman tells the committee that in neither of their two conversations—the “lunch meeting, in which we didn't eat lunch,” or the three-minute phone call—does Barr mention Carpenito. And the attorney general never gives Berman a reason for his bypassing of Strauss.

June 19, 11:14 p.m.: Berman issues the press release rebutting Barr’s public statement. In his account of the release, Berman’s statement said “that I had not resigned and had no intention of resigning, and that I intended to ensure that our office's important cases continue unimpeded.” Berman described his public rebuke of Barr’s earlier release as “an important statement for me to make.” In Berman’s view the 11:14 p.m statement was “is not only consistent but required as a result of the position I held as United States attorney.”

Late in the night of June 19 or early in the morning of June 20: Berman “sent an internal email to the staff, to the AUSAs and staff” to address the situation. In his recollection of sending the email, he was not sure whether he sent it “late Friday evening or early Saturday morning.” Berman did not say for certain whether the email came after he released his own public statement, but the fact that he was unsure whether it was late Friday or early Saturday likely implies that it came after he released his own 11:14 p.m. public statement. Berman explained to the committee that he sent out the message because he “thought it was appropriate and was concerned about the morale of the office.”

June 20, throughout the day before 3:30 p.m.: Berman makes “several calls with members of [his] executive staff and with [his] private attorneys.”

June 20, 3:30 p.m.: Barr releases a public letter addressed to Berman saying that the President has fired the then-U.S. attorney. But the letter also contained something that Berman viewed as a key concession: Berman’s deputy Audrey Strauss, and not Carpenito, will assume immediate control of the office until the Senate confirmes Berman’s permanent successor.

Berman has “full confidence that Audrey would continue the important work of the office,” so he has “decided to step down and not litigate [his] removal.” The concession addressed Berman’s “primary concern,” which is “not to have an acting U.S .attorney from outside the office placed in that position in the near future.” Berman seeks to assure the committee that “[t]his was never a fight about me or for me or for me to keep my position. My sole goal was to ensure that the investigations would not be impeded.”

June 20, 6:17 p.m.: Berman doesn’t discuss this during his testimony, but he releases his public statement. The statement says that because Barr had decided to “respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney,” Berman would step down from his position, he says.

What We Still Don’t Know

In the aftermath of Berman’s roller-coaster day, Benjamin Wittes proposed five key questions that congressional investigators should pursue:

  1. Why was Berman removed?
  2. Why was Berman removed now?
  3. Did Berman feel political pressure with respect to any investigation?
  4. Who precisely was responsible for Berman’s dismissal?
  5. What was the extent to which and the reason that Barr has been less than truthful about the events in question?

Berman’s tight-lipped interview offered little in the way of conclusive responses to these questions. Berman was asked, for example, about question number three: “Had DOJ attempted to influence your investigation of the President's personal attorney's associates?” He replied, “I decline to answer that question, because it is outside of the parameters established for the interview.” Berman also refused to elaborate on why he felt that the Attorney General’s actions raised “serious concerns.”

Berman did offer up some relevant information, though. He characterized Barr as someone “intimately familiar with the investigations and cases” in SDNY but said that Barr did not mention any specific case, witness, defendant, or suspect to him. (Minority counsel asked him whether Barr brought up the Jeffrey Epstein case or “any Rudy Giuliani-related case, whether it's Lev Parnas or Igor Frum;” majority counsel tried to get Berman to comment on the Halkbank case). And Berman affirmed that there was no talk between him and Barr of “anything involving the President” or “[w]hy the president wanted [Berman] to be removed or if the President wanted [Berman] to be removed.”

Still, Berman’s testimony affirmed that Congress would do well to keep digging. He described “irregular and unexplained actions” by the Attorney General that would have jeopardized the progress of SDNY’s cases and investigations—some of which involve individuals connected to the president. Berman wouldn’t go any further, but should it keep probing, Congress might be able to breach the Justice Department’s cone of silence.

Jacob Schulz is a law student at the University of Chicago Law School. He was previously the Managing Editor of Lawfare and a legal intern with the National Security Division in the U.S. Department of Justice. All views are his own.

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