June 19, 2020

Tonight saw a Friday night news dump that will go into the history books.

Trump tried to fire the US Attorney from the Southern District of New York, Geoffrey S. Berman, who has managed a series of cases against Trump and his allies, including Trump fixer Michael Cohen, Trump lawyer Rudolph Giuliani, and Lev Parnas and Igor Fruman, who were indicted for funneling Russian money to Republican candidates for office. Berman is reported to be investigating Trump’s finances, among many other things.

It happened like this: Attorney General William Barr issued a statement announcing that Berman would be stepping down and that Trump would nominate Jay Clayton to replace him. Clayton has never been a prosecutor. He is currently the head of the Securities and Exchange Commission, but before he took that position he was a lawyer who, among other things, represented Deutsche Bank. Deutsche Bank is the only bank that would work with Trump after his bankruptcies. It might have given him loans he did not repay, and the Russian money-laundering that landed the bank in legal trouble might have helped Trump.

Legal analyst and Congressional staffer Daniel Goldman noted that this whole scenario was unusual. Normally, when a US Attorney leaves, that person’s deputy takes over. Bringing in a replacement from elsewhere meant that “Trump/Barr did not want anyone at SDNY running the office—likely because there was a serious disagreement.”

But then things got crazier. Berman issued his own statement, saying “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 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.”

What’s Berman saying? Well, it might be that Trump’s preference for “acting,” rather than Senate-confirmed, officials has come back to bite him. Berman was not Senate-confirmed; he is an interim U.S. Attorney. By law, the Attorney General can appoint an interim U.S. Attorney for 120 days. At the end of that time, the court can appoint that person indefinitely.

Berman was one of those interim appointees, put in place by Trump’s first Attorney General, Jefferson Beauregard Sessions.

Berman’s appointment raised an outcry because he was handpicked by Trump. The U.S. Attorney for the SDNY oversees Manhattan and thus the president’s businesses and at least nine Trump properties. Trump went out of his way to take the unusual step of personally interviewing Berman, who donated $2,700 to the Trump campaign, served on the presidential transition team, and was a partner at the law firm where Trump’s lawyer Rudolph Giuliani is a member. Democrats vowed to block Berman’s nomination, but never got the chance because Sessions used the workaround so Berman would not come before the Senate.

Now, this means that because Berman was appointed by the United States District Court for the Southern District of New York, not the president, he apparently cannot be removed except by the court, or, possibly, by the president… but not by Barr. Lawyers are fighting over who, exactly, can remove Berman, but that itself says that any challenge he files will land in the courts for months… likely until after the election.

And that’s another notable thing about Berman’s statement. He suggests he is being fired because the administration wants to delay or interrupt an investigation, and his language suggests that both he and the administration know exactly what that investigation is. There are a number of reasons the SDNY might be examining the finances of the president or his family, but former National Security Advisor John Bolton suggested another reason in his forthcoming book: he apparently claims Trump assured Turkey’s autocratic leader Recep Tayyip Erdogan he would fill the SDNY with his own loyalists, which would enable him to do Erdogan a political favor.

As Berman’s predecessor in the job, Preet Bharara tweeted, “Why does a president get rid of his own hand-picked US Attorney in SDNY on a Friday night, less than 5 months before the election?” President of the Center for American Progress Neera Tanden noted: “To attempt a Friday night massacre 5 months before an election means there’s a pretty big investigation they are trying to kill.”

It seems worth noting that the Supreme Court is about to hand down a decision on whether Deutsche Bank and Trump’s accountants have to hand Trump’s financial records over to Congress and to the Manhattan district attorney, which might well spark legal trouble for the president in New York.

Law professor Stephen Vladeck also asked us to keep in mind that Barr “out-and-out * lied * in a written statement—and in a context in which there could have been little question to him that Berman would publicly call him out for doing so… And he did it anyway.” “Something * really * stinks,” Vladeck concluded.

Something else stinks about this crisis, too, and that is the Tulsa rally the president originally scheduled for tonight. Widespread objection to holding a Trump rally on Juneteenth—the historic celebration of Black freedom-- in Tulsa, where a race massacre destroyed the Black community of Greenwood in 1921, forced him to reschedule for tomorrow. But had the rally been held, with media focus on disturbances at it and on the spread of coronavirus there, it seems likely that Berman’s firing would not have gotten much attention.

Indeed, it has seemed all day as if Trump was deliberately stoking trouble in Tulsa. He began today by tweeting a threat: “Any protesters, anarchists, agitators, looters or lowlifes who are going to Oklahoma please understand, you will not be treated like you have been in New York, Seattle, or Minneapolis. It will be a much different scene!” (Americans have a constitutional right to protest.)

Then he made sure his supporters would be in the streets. In consultation with the Secret Service, the Tulsa police chief had asked Tulsa’s mayor to declare a curfew around the BOK Center where the rally will be held. He did so. But Trump pressured the mayor to rescind the curfew, which the mayor did. Trump tweeted "I just spoke to the highly respected Mayor of Tulsa, G.T. Bynum, who informed me there will be no curfew tonight or tomorrow for our many supporters attending the # MAGA Rally…. Enjoy yourselves - thank you to Mayor Bynum!”

This crisis feels big. Trump and Barr know an investigation is out there barreling toward the president, and they are willing to take extraordinary steps, steps that undermine our democracy and threaten our citizenry, to stop it.

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Notes:

https://www.politico.com/news/2020/06/19/trump-nominate-sec-chair-clayton-us-attorney-southern-district-330039

Goldman:

Clayton: https://www.forbes.com/sites/charlestiefer/2020/06/19/trumps-reason-to-oust-the-head-of-the-southern-district/

US Atty workaround: https://www.washingtonpost.com/opinions/jeff-sessions-could-bypass-congress-to-appoint-us-attorneys-heres-how/2018/02/01/5811658c-0763-11e8-94e8-e8b8600ade23_story.html

Berman appointment: https://www.cnn.com/2018/01/10/politics/manhattan-us-attorney-appointment/index.html

Removal arguments: https://www.cnbc.com/2020/06/19/justice-department-replaces-federal-prosecutor-berman-with-sec-clayton.html

Berman statement:

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Bharara:

Vladeck:

Trump’s finances: https://thehill.com/regulation/497385-supreme-court-divided-over-fight-for-trumps-financial-records

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