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June 25, 2020

CAFE Insider Newsletter #77

Dear Reader,

As you might imagine, I have a great many thoughts and feelings about the abrupt firing of the U.S. Attorney for the Southern District of New York, Geoffrey Berman. The manner and timing of the termination raise countless questions, and it is a shame that Attorney General Bill Barr will not come before the House Judiciary Committee until the end of July to be asked some of those questions.

My concerns are only compounded by the extraordinary hearing that took place yesterday in that committee. Two DOJ officials testified about their perceptions of political decision-making. Most disturbing was the testimony of a current Assistant U.S. Attorney (AUSA) in Maryland who served in Special Counsel Robert Mueller’s office and then was detailed to the U.S. Attorney’s office in D.C. to see through the government’s case against Roger Stone. That AUSA, Aaron Zelinsky, bravely told Congress and the public that “Roger Stone was being treated differently from any other defendant because of his relationship to the President… and that the U.S. Attorney’s sentencing instructions to us were based on political considerations.”

That is stunning stuff. Especially coming from a current employee of DOJ, whose leadership must be furious.

And so, like many DOJ public servants and alumni, I feel disappointment and dismay at what looks like deeply political conduct, to favor a presidential friend and to rein in the most independent prosecutor’s office in the department, SDNY. I also feel a bit angry that the President and Attorney General are so blithely undermining the department’s reputation and the public’s faith in its impartiality.

But there’s something else I’m feeling too. As Yogi Berra once said, “It’s like déjà vu all over again.” It was 39 months ago that I was fired abruptly and without explanation after personally being asked to stay on by Donald Trump.

I’ve been thinking about that time in my own life and the parallels to last weekend’s events. Like Geoff, I was asked to meet personally with Trump. Like Geoff, I was given no real explanation for why I was being asked to vacate the position.

As in Geoff’s case, my firing was sudden but not completely unanticipated. There has been credible reporting for some time that Trump has been unhappy with SDNY and its handling of Michael Cohen’s case, among other things. There was even reporting that Geoff was about to be replaced with a particular official at DOJ when those plans were scuttled because SDNY indicted two associates of Rudolph Giuliani, and sacking Geoff then would be too explosive. In my own case, not long after Trump was sworn in, I began to believe I could be terminated at any time. In particular, when Sally Yates was summarily fired on the evening of January 30, 2017, I became wary of my own precariousness. Would I be asked to take a position in some case that I thought was unsound or unconstitutional? That could certainly happen. At the same time there was increasing grumbling about “the deep state.”

In anticipation of that possibility, I met with our office manager and made sure that if I were fired on a minute’s notice, there would be no bureaucratic loose ends. We also moved to come to resolutions on some outstanding cases, including one involving a prominent elected official in New York. I did one more thing because I was concerned about being muzzled if I were fired under contested circumstances. Just a week before I was pushed out, I took personal ownership of my twitter handle @preetbharara. As in the case of Geoffrey Berman, my firing was sudden but not shocking.

Like Geoff, I was in a 24-hour weekend standoff with the White House as I insisted on being fired by the President. Our situations were different insofar as Geoff, as a court-appointed U.S. Attorney, had a legal argument – backed by a 1979 OLC opinion – that only the President, not the AG, could fire him. Still, the parallels are striking and made me think back to going into work that Saturday morning on March 11, 2017, not certain how the day would unfold. I sat in my office watching the news reports with my deputy Joon Kim and chief counsel Joan Loughnane. I kept expecting the phone to ring with the news. Hours passed. My daughter texted me, asking why she had gotten not one but two New York Times news alerts about my situation. We ordered summer rolls from a local Vietnamese joint in Chinatown and settled in. Finally the call came and I hit send on the office-wide farewell email I had drafted that morning. I also marked it with a tweet from my new personal account.

As I was packing my bag, I looked at Joon and Joan and became very sad. Sure I was sad to be leaving but I could not complain. I had a seven-and-a-half year run, longer than I could ever have hoped for. We had a lot to be proud of. I had expected to be gone by then anyway, as would have been the norm when the White House changed parties. What I was sad about was leaving the office on a Saturday afternoon without the chance to say a proper goodbye to all the people I loved so much. As I was bemoaning this, Joon and Joan looked at each other and softly smiled. They said, “You know, Preet. We can let you back in the building Monday so you can speak to the office.”

It was an obvious solution, but it hadn’t occurred to me and we all laughed. In an abundance of caution, they didn’t advertise my Monday speech, just scheduled an office-wide meeting in the second floor library for 4 pm. I brought my family with me. I got to see one more time the court security officers, AUSAs, paralegals, assistants, interpreters, press staff, and everyone I had worked with for so many years. It is hard to explain how important it was for me to be able to say three simple things: thank you, good luck, and goodbye.

When I walked out of the building, the office staff were lined up on both sides to give me a sendoff. To my grand surprise, Joon had arranged for a bagpipe. Why? Because he knew I love bagpipes. This was harder than it sounds, booking a bagpiper on a weekend, just before St. Patrick’s Day. You can see it here.

I feel a particular sadness now, for my old office. There are many parallels between our departures, but one unfortunate difference is this: I got to say my final farewell in person. Because of the pandemic and so many people working remotely, Geoff did not have that opportunity, in real time. Eventually, though, I trust he will be able to say in person those three important things, in his own words, to the office he loved: thank you, good luck, and goodbye.

Be kind and be safe.

My best,

Preet

The Bush DOJ’s U.S. Attorney Purge: A Look Back

By Sam Ozer-Staton

On Friday night, Attorney General Bill Barr sent shockwaves through the Department of Justice by abruptly announcing the resignation of Geoff Berman, the U.S. Attorney for the Southern District of New York. Berman, who initially refused to resign and was ultimately fired following a standoff with Barr, secured an important concession on his way out: Audrey Strauss, his trusted deputy and an experienced independent prosecutor, would be taking his place instead of the political appointee favored by Barr.

The sudden and unexplained removal of Berman, who was responsible for overseeing multiple politically sensitive investigations involving President Trump’s associates — including his former counsel Michael Cohen, and his current one, Rudy Guiliani — sparked outrage from career prosecutors and DOJ alumni.

The episode also harkened back to the March 2017 firing of CAFE’s own Preet Bharara from the same position. In a New York Times op-ed published on Sunday, Preet wrote that Berman’s firing “smacks of an effort to get rid of someone perceived to be disloyal in favor of someone more controllable,” and “does not reflect a commitment to law enforcement independence.” Preet also discussed the events surrounding Berman’s firing at length with Anne Milgram on Monday’s emergency episode of the CAFE Insider podcast.

Yet the Trump administration’s ongoing war with SDNY is not the only example of politically-motivated U.S. Attorney firings in recent presidential history. The Bush administration’s late 2006 purge of 7 U.S. Attorneys was a scandal so significant that it led to the eventual resignation of then-Attorney General Alberto Gonzales.

The events surrounding that firing spree were laid bare by an Inspector General report and multiple high-profile congressional investigations, including an inquiry in the Senate Judiciary Committee which Preet led while he was Chief Counsel and Staff Director of the Subcommittee on Administrative Oversight and the Courts.

What did those investigations reveal? The dismissal of 7 U.S. Attorneys on December 7th, 2006 — and 9 in total over the course of that year — represented the conclusion of a yearslong effort by top DOJ and White House officials to replace independent-minded prosecutors with loyal political allies of the Bush administration.

A key player in that effort was Kyle Sampson, a longtime Republican lawyer who held a number of top positions within the Bush DOJ, including Counselor to then-Attorney General John Ashcroft and eventually Chief of Staff to his successor, Gonzales.

As early as late 2004, Sampson discussed with Gonzales, who was at the time White House Counsel, the possibility of replacing some or all of the country’s 93 U.S. Attorneys. In the years to come, Sampson would work to carry out that mission while coordinating strategy between the DOJ and the White House Counsel’s office.

In January 2005, while working for Ashcroft, Sampson emailed Deputy White House Counsel David Leitch to suggest that the administration dismiss U.S. Attorneys who were not “loyal Bushies,” adding, “If Karl [Rove] thinks there would be political will to do it, then so do I.” Two months later, Sampson emailed incoming White House Counsel Harriet Miers, evaluating U.S. Attorneys with a checklist based on whether they had “exhibited loyalty to the President and the Attorney General.”

By 2006, Sampson had become Attorney General Gonzales’s Chief of Staff, and he was ramping up his efforts to replace several sitting U.S. Attorneys — each of whom were Republican political appointees — with stronger political allies. That effort was aided by a provision buried within the 2006 USA Patriot Act Reauthorization which allowed the Attorney General to appoint replacement acting U.S. Attorneys indefinitely without Senate confirmation. In a September 2006 memo to Miers, Sampson wrote:

I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments … [By avoiding Senate confirmation] we can give far less deference to home state senators and thereby get 1) our preferred person appointed and 2) do it far faster and more efficiently at less political costs to the White House.

In another email to Miers dated December 4th, Sampson wrote that he was ready “to execute this on Thursday, Dec. 7,” and that he had picked that date so that the U.S. Attorneys would be “back home and dispersed to reduce chatter.” Yet he also warned of potential backlash, adding, “Prepare to Withstand Political Upheaval.”

Political upheaval ensued. Following the firings, Senators Dianne Feinstein (D-CA) and Patrick Leahy (D-VT) sent Attorney General Gonzales a letter expressing concern about the bypassing of the traditional Senate confirmation process in the wake of the Patriot Act Reauthorization bill. In February 2007, Senator Chuck Schumer (D-NY) held a hearing in which Deputy Attorney General Paul McNulty testified that the dismissals were “performance-related” and not due to political considerations.

As McNulty would later admit himself, that was not true. His testimony set off a series of investigations which exposed a culture of political influence within DOJ by Bush administration officials that extended beyond the U.S. Attorney firings. Monica Goodling, a 29-year old former Republican political operative turned Senior Counsel to Attorney General Gonzales, was shown to have screened out candidates for senior career positions — including immigration judges, assistant U.S. Attorneys, and even counterrorism roles — based on political considerations.

Goodling had also created a spreadsheet tallying the conservative political credentials of each of the 124 U.S. Attorneys nominated since Bush had taken office. “This is the chart the AG requested,” Goodling wrote in an email to two other senior DOJ officials in February of 2006.

There were additional indications that Gonzales personally approved of the firings for political reasons, including a batch of DOJ memos which stated that he had signed off on a detailed plan for executing the purge in an hour-long meeting in late November 2006.

Testifying before the Senate Judiciary Committee in April 2007, Gonzales repeatedly stated under oath that he could not recall key details related to the firings. While Gonzales never admitted guilt, he buckled under the political weight of the investigations, ultimately resigning as Attorney General on August 27th, 2007.

Do you remember the U.S. Attorney purge of 2006? How do you think the Bush DOJ’s actions compare to that of the current department under Barr? Let us know your thoughts by writing to us at [email protected], or reply to this email.The Bush DOJ’s U.S. Attorney Purge: A Look Back

FOLLOW

The Lincoln Project is a political action committee founded by several prominent anti-Trump Republicans, including the political consultants who produced the media for the McCain and Romney campaigns. The group, which also includes the lawyer George Conway, a guest of Stay Tuned and the husband of Trump’s Counselor Kellyanne Conway, has gained attention for their viral ads in recent weeks, including a new take on Ronald Reagan’s iconic “Morning in America” spot which exposes Trump’s mishandling of the COVID-19 crisis. Follow them @ProjectLincoln.

*To listen to Insider content on your favorite podcast app, follow these  instructions*

— This week’s episode of Stay Tuned, “The Justice Archives,” looks back at four brilliant past guests, each of whom offer valuable perspective on the state of our country, justice, civil rights, and the rule of law. The episode draws from excerpts of Preet’s conversations with Vanita Gupta, who led the Civil Rights Division of the Justice Department under President Obama; Cynthia Deitle, the Matthew Shepard Foundation’s Director of Civil Rights Reform; Sherrilyn Ifill, the President of the NAACP Legal Defense Fund; and Bryan Stevenson, the founder and president of the Equal Justice Initiative.

— In this week’s emergency episode of CAFE Insider, “The Firing of Geoff Berman — A Low Barr,” Preet and Anne break down the events surrounding Attorney General Bill Barr’s sudden firing of Geoff Berman, now the former U.S. Attorney for the Southern District of New York.

— Watch or listen to Tuesday’s live taping of CAFE Insider, where Preet and Anne responded to listener questions regarding the release of John Bolton’s book, the latest revelations with respect to Bill Barr’s firing of Geoff Berman, and the two recent progressive victories at the Supreme Court.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Sam Ozer-Staton, David Kurlander, Noa Azulai, Calvin Lord, David Tatasciore, and Matthew Billy.

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