When Berman Won’t Go

The New York Times writes that Attorney General Bill Barr “tried to fire” Southern District of New York United States Attorney Geoffrey Berman, but that’s not quite right.

Attorney General William P. Barr on Friday night abruptly tried to fire the top federal prosecutor in Manhattan, Geoffrey S. Berman, who has investigated several of President Trump’s closest associates, but Mr. Berman said he would not leave.

Barr issued a press release stating that Berman was “stepping down,” which was news to Berman, who wasn’t stepping anywhere.

There is a debate going on about who has the authority to fire Berman, who was appointed by the district judges pursuant under 28 U.S. Code § 546(d), which is all well and good, but now Barr has announced that he’s out, while he’s announced he’s not going anywhere. Some day a court may decide who’s right, not that it matters at the moment. Former AUSA Daniel Goldman astutely observes,

Berman’s resignation is not typical.

Sharp. The common wisdom is that Trump, who hand-picked Berman, a campaign supporter, for the job, but was angry that he went after Trump pals, from Michael Cohen to the inchoate prosecution of his predecessor in office, Rudy Giuliani (a detail curiously omitted from the NYT’s description of Rudy only as “Trump’s current lawyers”), was looking at another scandal emanating out of the Sovereign District of New York, known for its independence from Main Justice and the AG’s thumb. It’s assumed that Barr was attempting a Friday Night Massacre on behalf of Fearless Leader to avoid it. What that scandal might be is hard to say, there being too many options to choose from.

And to add to the amusement, Steve Vladeck points out what’s “clear” about these shenanigans.

Barr lied.
Something *really* stinks.

While others obsess over the big picture, it’s the little one that makes me wonder what will become of the cases and investigations pending in SDNY. When Berman shows up for work on Monday morning, will he find someone else’s family photos on the desk? Will they let him in or tell him to take a hike? What about the indictments that need signing off or the approvals that await his signature?

While not on most people’s radar, there are other investigations and prosecutions going on in Manhattan federal court. What does this mean for them? The problem is that we’re now so far beyond normalcy that nobody knows. Running the Executive Branch like an incompetent family business that survives only because tax dollars prevent it from going bankrupt has shredded the presumption of regularity.

One of the battles being fought around Trump’s astounding ignorance of law and governance was trying to maintain the framework of regularity, in the face of his appointing goofballs to positions of power for no better reason than their swearing fealty, the cries of TrumpLaw to prevent Trump from doing what the president was lawfully empowered to do under the assumption that we wouldn’t elect someone as vulgar, amoral, ignorant and narcissist as Trump, and the flagrant petty corruption of using the office for self-enrichment and self-aggrandizement, was to maintain the semblance of a constitutional republic so it would still be here when this nightmare was over.

It’s one thing to elect Darth Cheeto because the Democrats’ notion of creating their own flavor of Utopia, but it’s another to watch as his insanity, ignorance and incompetence destroy what little remains of our structure of government without any help from the other tribe.

When Bill Barr was tapped to replace Sessions, it seemed as if he would be the grown up in the room for as long as Trump kept him on, which wasn’t likely to be very long given Trump’s grasp of the AG’s job as his personal hatchet man. But Barr, whose legacy as AG had already been established under Bush, inexplicably decided to get on his knees before Trump and do his bidding in ways that made Giuliani blush.

Whether Barr’s “firing” of Berman is as bad as other things that Trump has done in the course of his pretending to be president is a matter of personal opinion. There are certainly good arguments for the myriad other disasters and crises he’s caused being worse, or different, or it doesn’t really matter which is stupider than the other.

But now that Trump, via his faithful dog Bill, has neutered both the functioning, and the myth, of the Southern District of New York, it’s hard to not laugh at the funny joke of taking the office seriously enough to believe what comes out of the office. How does an impassioned young AUSA demand that some poor black kid get 121 months when he’s in the service of Barr, of Trump? What does a district judge do when he realizes that there is nothing left of the integrity of the SDNY United States Attorney’s office when it’s been reduced, publicly and flagrantly, to nothing more than the replacement for Trump’s personal lawyers now that his former Legal Beagle Michael Cohen is preoccupied?

If the government’s position in Flynn didn’t already make this clear, Barr’s firing of Berman certainly should. At some point, the absurdity of what’s become of regularity has to hit home. If we weren’t there before, we’re there now.

According to the notes of Dr. James McHenry, as he left Independence Hall on the final day of deliberations at the Constitutional Convention of 1787, the following transpired.

A lady asked Dr. Franklin “Well Doctor what have we got, a republic or a monarchy.”  Franklin replied, “A republic . . . if you can keep it.”

Somewhere, a statue of Ben Franklin was torn down by a mob last night, as Bill Barr “fired” Geoffrey Berman and Berman refused to be fired. Yet, there are still people sitting in MCC awaiting their fate under our legal system, imperfect but the best ever created. Or so we used to say.

 

11 thoughts on “When Berman Won’t Go

  1. B. McLeod

    U.S. Attorney has always carried a certain amount of political exposure. It isn’t abnormal for two-term presidents to change their selections post-reelection. Occasionally, we get a Nixon or Trump, and the jobs turnover as the need is perceived.

  2. Richard Kopf

    SHG,

    Is the appointment of Mr. Berman Constitutional?

    Judicial appointments of US Attorneys have always troubled me. See, for example, Ross E. Wiener, Inter-Branch Appointments after the Independent Counsel: Court Appointment of United States Attorneys, University of Minnesota Law School Scholarship Repository, Minnesota Law Review (2001) (PDF).

    Mr. Wiener, who in 2001 described himself as a “Trial Attorney, U.S. Department of Justice,” argued:

    This Article argues that, under any of these three scenarios, the court appointment of U.S. Attorneys is inconsistent with the United States Constitution. Part I establishes the relevant factual predicate by describing the history of federal law enforcement, the place of the U.S. Attorney in that system,
    and the unique relationship between the U.S. Attorneys and the Attorney General. Part II provides the legal framework for assessing the appointment of U.S. Attorneys by exploring the structure and operation of the Appointments Clause and explaining the processes for appointing and removing U.S. Attorneys. Part III reviews the judicial precedents that have distinguished between principal and inferior officers and shows how the responsibilities conferred on U.S. Attorneys are inconsistent with inferior officer status. Therefore, this Part concludes that U.S. Attorneys, by virtue of their status as principal officers, must be nominated by the President and confirmed by the Senate. Part IV argues that, even if U.S. Attorneys can be considered inferior officers, their appointment by the district court judges before whom they will be required to appear is incongruous with appropriate judicial activity. Part V concludes that, even if the mechanism providing for court-appointed U.S. Attorneys satisfies the Appointments Clause, it nonetheless violates the separation-of-powers doctrine by disturbing the balance of power between the executive and legislative branches and defeating the accountability intended under the Constitution.

    If Barr sues, I wonder whether the judges of the SDNY are all disqualified. In any event, this is an uncomfortable situation for Main Justice, Mr. Berman, and the judges.

    All the best.

    RGK

  3. Hunting Guy

    Ex-boss of mine to an ex-coworker.

    “Don’t bother coming in tomorrow. Your keycard won’t work.”

    …….

    Let me see if I understand this. Barr says Berman is resigning. Berman says no. Barr says Trump fired Berman. Trump says I’m not involved.

    I’m checking my popcorn stock.

    1. SHG Post author

      This is so FUBAR, even Preet was able to get a decent joke in.

      Trump finally learned the talking point (“I’m not involved with DOJ”) for the one occasion when he was supposed to say the opposite

  4. Joseph Masters

    AP is reporting Berman just resigned–apparently for real this time, with Audrey Strauss replacing him.

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