On June 19, the Department of Justice abruptly announced that Geoffrey Berman, United States Attorney for the Southern District of New York (SDNY), would be stepping down. This was news to Berman, apparently, who quickly released a statement saying that he had no intention of leaving his position until he is replaced by a Senate-approved nominee. Berman’s office has investigated and prosecuted several individuals associated with President Trump, including Michael Cohen, the president’s former attorney.
So, who is Berman, and why did he initially refuse to step down? To shine some light on this unexpected development and its possible ramifications, Liberty Nation‘s Legal Affairs Editor, Scott D. Cosenza breaks down the details.
Graham J Noble: As U.S. Attorney for the SDNY, Geoffrey Berman, it could be said, held one of the most prestigious and high-profile criminal justice positions in the country. He has been involved with several cases targeting the president’s associates and others with connections to matters relating to alleged scandals that have swirled around the president. How and when did Berman attain his now-former position in SDNY?
Scott Cosenza: We have 94 U.S. Attorney positions, and they are nominated by the president and confirmed by the Senate. These are the key decisionmakers on which Americans will be prosecuted on federal criminal charges, among other duties. Mr. Berman’s appointment was the exception to the rule, however. He was appointed to the job by the district court in N.Y. The law says that if a U.S. Attorney office is vacant, the district court where the vacancy exists may appoint one until the vacancy is filled.
President Trump fired Preet Bharara, an Obama appointee and loyalist from the United States Attorney for the Southern District of New York position in 2017, and installed Joon Kim, who performed the role in an “acting” capacity. His name was never submitted to the Senate for confirmation, and he left the job due to a 300-day time limit on acting U.S. attorneys. Berman was Kim’s replacement, also as an acting U.S. Attorney. The Trump administration did not submit Berman’s name to the Senate for consideration, and the District Court appointed Berman to fill the role in April of 2018. That meant Berman was no longer an acting U.S. Attorney – and also that his appointment did not need Senate confirmation.
Graham J Noble: Berman’s appointment to the position, then, was in line with DOJ rules, but it didn’t happen in the usual way. Berman stated his intention to remain at SDNY until replaced by an appointee confirmed by the Senate. In response to that, Attorney General Barr wrote to Berman, informing him that the president removed him and Berman relented. So, he is now officially out, but why did he initially refuse to step down? And how – briefly – did Barr frame his response to Berman’s stated intent not to go?
Scott Cosenza: After Barr’s announcement on Friday, Mr. Berman took the extraordinary step of issuing his own press release challenging the Attorney General. Berman said:
“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.”
It appears that General Barr’s press release announcing that Berman would leave irked the man. Barr said Berman was “stepping down” from his job, which was not true. Perhaps General Barr simply thought Mr. Berman would resign when asked, as he serves at the pleasure of the president. Or even that it was a classy way to let someone go, with praise rather than criticism. No matter – he preferred to be fired, and so he was. Mr. Berman may have been taking a stand for honest communications about his intent to remain on the job. If so, it coincidentally happens to have been the most politically damaging thing he could have done to Donald Trump.
Graham J Noble: It has been reported that the Southern District of New York is currently investigating the president’s attorney, former New York City Mayor Rudy Giuliani. Is that true and, if so, why?
Scott Cosenza: U.S. Attorneys seldom announce the targets of their investigations, but the bad ones leak like sieves, and it seems Berman’s shop can be included amongst those. Numerous news outlets tell us that sources say Berman’s office is currently investigating Mr. Giuliani. The L.A. Times, for instance, says the office has “an ongoing investigation into Giuliani’s business dealings, including whether he failed to register as a foreign agent, according to people familiar with the probe.”
Graham J Noble: What, if any, are the possible repercussions from Berman’s firing, given his involvement in past and, possibly, ongoing investigations involving Trump associates.
Scott Cosenza: I suspect any such investigations will proceed apace. They may even increase in effort, due to a desire by incoming Acting U.S. Attorney Audrey Strauss to show her independence from the administration. The office of United States Attorney for the Southern District of New York has behaved more independently than other offices for many years, and I would expect that trend to continue. Mr. Berman himself almost certainly investigated nothing – he had 220 lawyers on staff for that, and their job roles have not changed.
This final point is noteworthy since the president’s opponents are already painting Berman’s firing in a similar light to the dismissal of former FBI Director James Comey. The implication is that Berman was fired as part of an attempt to thwart investigations into people connected to the president – or perhaps in retaliation for past criminal probes. In reality, though, the attorney’s removal will not impact ongoing investigations, just as Comey’s firing was not going to stop anything the FBI was doing. That fact is inconvenient, though, and will not be taken into account by those with a political agenda.