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June 22, 2020

CAFE Insider 6/22: The Firing of Geoff Berman – A Low Barr

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In this special 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, the U.S. Attorney for the Southern District of New York. 

We hope you’re finding CAFE Insider informative. Email us at [email protected] with your suggestions and questions for Preet and Anne. 

References and Supplemental materials below. 

REFERENCES & SUPPLEMENTAL MATERIALS

THE NEWS

Preet’s op-ed, New York Times, 6/21/20

AG Barr’s initial statement announcing Geoff Berman’s resignation and replacement, 6/19/20

Geoff Berman’s statement in response to AG Barr’s initial announcement of his resignation, 6/19/20

Barr’s letter to Berman, indicating that President Trump had fired him, 6/20/20 

Berman’s statement, in response to Barr’s letter, 6/20/20

“Manhattan prosecutor relents after tense showdown with Barr,” Politico, 6/20/20

CLIP: Rep. Jerry Nadler on Berman potentially testifying, 6/21/20

CLIP: Trump claims he was “not involved” in Berman firing, 6/20/20

THE LAWS

28 U.S. Code § 541. United States attorneys

28 U.S. Code § 546, U.S. Attorney vacancy statute 

United States v. Young, 2008 New Mexico District Court Case concerning U.S. Attorney appointments

United States v. Taylor, 2009 New Mexico District Court Case 

United States v. Hilario, 2000 Puerto Rico District Court Case 

1979 OLC opinion 

Preet Bharara:              From CAFE, this is CAFE Insider. I’m Preet Bharara.

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              So Anne, we weren’t going to do a regular episode this week, but the news kind of overtook.

Anne Milgram:             Yes, completely. Completely. And so Friday night was quite a night and then Saturday as well. And yeah, it seems like the perfect time to get together just for a short time to talk it through.

Preet Bharara:              So it was a weird weekend for me, as you might imagine, and I’ve done a bit of writing and a lot of tweeting and a lot of talking about it. Deja vu all over again. This in many ways, not in all ways, but in many ways was precisely the weekend that I had three years and three months ago, when out of the blue, I was asked to resign, refused to resign, insisted on being fired by the president, was fired by the president and then left. So we look forward to Geoff Berman’s new podcast as a alum of Northern District of New York.

Anne Milgram:             Stay tuned with Geoff.

Preet Bharara:              Yeah. It’s a very, very small club of SDNY US attorneys fired by Trump.

Anne Milgram:             Well, yes, it’s two, right? You’re-

Preet Bharara:              It’s just two.

Anne Milgram:             You used to be 100%, now you’re 50%.

Preet Bharara:              I’m glad to share.

Anne Milgram:             Have you talked to Berman? Did he reach out to you?

Preet Bharara:              Yeah, we’ve communicated.

Anne Milgram:             Yeah. I sort of felt like if I were in your shoes or in his shoes, that it’s a natural connection to be made. Obviously, he’s a Trump-appointment, a Republican; was a partner with Giuliani for a period of time, but the bigger thing is that you both ran an incredible office in the Southern District of New York.

Preet Bharara:              Yeah. Look, I wrote an op-ed for the New York Times, which was posted last night at the end of which, I said… And we’ll get to this. We’re jumping ahead a little bit. But Geoff Berman walked out of the Southern District with his head held high. And I think there’s some other people who should not be proud of how they handled this, namely the Attorney General of the United States.

Anne Milgram:             Yeah. Let’s talk it through. Let’s talk through, sort of, starting Friday night.

Preet Bharara:              So let’s take it from the top?

Anne Milgram:             Yeah.

Preet Bharara:              So Friday night, out of the blue, comes this statement that I… You know how I heard about it? Our friend Elie Honig texted me. I was finishing up dinner and he said something like, “Holy cow, SDNY.” I’m like, “I don’t know what you’re talking about.” And Bill Barr puts out this unexpected statement after 9:00 PM on Friday, basically saying the president intends to nominate, hasn’t nominated, but intends to nominate the chairman of the SEC, Jay Clayton, to be the next US attorney in SDNY. And in the meantime, a guy named Craig Carpenito, who’s the US attorney in New Jersey, would be the US attorney, not only in New Jersey but also the acting US attorney in SDNY. And we can get to why that would rankle people. And then almost as an aside, at the end of the statement, he thanks Geoff Berman for his service, who he says is… This is a quote, “Is stepping down after two-and-a-half years of service as the US Attorney in the Southern district,” which gives everyone the impression that what?

Anne Milgram:             That he was resigning and that he was voluntarily moving on.

Preet Bharara:              Right. And we’ll get to that. That’s important in all this and how you assess responsibility here, but that is the plain language of that statement. So all of a sudden, the SDNY Alumni Network goes into overdrive on Friday evening. You can imagine how much texting and emailing and phone calling is going on; speaking to people in the office, outside the office. And it becomes clear that something weird is going on because we’re not hearing from Geoff Berman just yet. And it became clear through the grapevine that he was going to put out his own statement. And by the way-

Anne Milgram:             Which is also highly unusual, right?

Preet Bharara:              Very unusual.

Anne Milgram:             It wouldn’t be necessary, but very unusual.

Preet Bharara:              Well, and it’s unusual for a particular reason. So I agreed to go on CNN on Friday night, and some people may have seen this and in the middle of broadcasting with Don Lemon on Friday night, while we’re trying to assess what’s happening here and what this means, we get the statement from Geoff Berman, which not only says, “I’m not resigning and I have no intention of resigning,” it says, “Look, I don’t intend to leave until there’s a Senate-confirmed replacement because I was appointed by the court.” Just remind people, the last Senate-confirmed US attorney in SDNY was me; confirmed 11 years ago. Since then there’ve been a series of acting, and then after a certain number of days, Geoff Berman was appointed by the court.

Anne Milgram:             Should we just explain this quickly?

Preet Bharara:              Yeah.

Anne Milgram:             Because I think this is a little bit unusual and Trump has done it in a number of places, including New Jersey, where the attorney general has the ability under statute to basically appoint an acting United States Attorney for 120 days. At the end of that 120 days… And by the way, at any point in time, it’s the president’s job to nominate United States Attorney for one of the federal districts, and then the Senate confirms that person. So if the president hasn’t nominated someone, the attorney general can put someone in that position, in an acting capacity for 120 days. At the end of that 120 days, the power is then given by law, to the district court to put someone in as the US attorney.

And at any point in time, the president could nominate someone else and the Senate could confirm them, but if they don’t, then the district court has put that person in. So that’s true of Geoff Berman. He was not Senate-confirmed. It’s also true of Craig Carpenito in New Jersey. He was not Senate-confirmed, but they were people who were put in by the attorney general and then the district court converted them.

Preet Bharara:              Right. And so then the question becomes, in real time, can the attorney general and/or the president remove Geoff Berman? It’s a legal question, which I was trying to answer while on the air. During commercial breaks, people are sending me statutes and legal opinions. And essentially, the reason… We don’t have to spend too much time on this because it turns out that Berman ended up leaving. I’d like to spend more time on why he made the decision he made on Saturday evening. But there’s one statute, 28 U.S.C. 541, that says, “Each United States Attorney is subject to removal by the president.” It seems kind of flat statement that anyone can be removed, but that’s in the statute that contemplates a person who has been appointed by the president and confirmed by the Senate. Separately, 28 U.S.C. 546 says, “If an appointment expires under subsection (c)(2), the district court for such district may appoint a US attorney to serve until the vacancy is filled.”

That’s sort of the position that Berman is in and Carpenito is in. The court-appointed the US attorney to quote, “Serve until the vacancy is filled,” which seems to suggest that maybe he could stay in place. Now, there was a 1979 Office of Legal Counsel opinion… Everyone’s familiar with the OLC now… that addressed this issue and basically said, for a variety of reasons, at least internally at the department, the understanding was, “Well, you should be able to be removable by the president United States, maybe not by the attorney general, if you were appointed by the court, but you can be removed by the president,” which then became a sort of an important issue overnight because it looked like on Friday, it was Bill Barr taking the action and Geoff Berman wanted to know if the president himself was taking the action. So I think overall-

Anne Milgram:             Yep. And really, actually, I think Berman forced the president’s hand, right?

Preet Bharara:              Yeah.

Anne Milgram:             And so the president was trying to isolate from this; have Barr do it. And then by Saturday, we get Barr saying the president, in a letter, “The president has fired you.” I agree with your analysis. It’s pretty widely accepted, I think, that the president can fire a US Attorney. We’re going to talk about under what circumstances the president can and should-

Preet Bharara:              It would be weird not to allow someone who has served in the executive branch, who has supervised in the executive branch… As feisty and as an interesting move as it was, I think it wasn’t probably fully on solid ground. So the next day, Bill Barr… A long time goes by between those two dueling statements and Bill Barr writes a letter. I don’t know. I’m curious what you thought of this. Pretty snarky. It did some name calling.

Anne Milgram:             I thought it was very snarky, yes.

Preet Bharara:              That’s kind of the Bill Barr way.

Anne Milgram:             And actually, unnecessarily so because Barr had the audacity to basically fire someone by press release, and not give them-

Preet Bharara:              And not call it a firing.

Anne Milgram:             Yes. And not call it a firing. And then when Berman responds and basically says, “I didn’t resign. And by the way, I’m appointed by the court. You can’t personally fire me,” and obviously, leaving open this possibility that the president can, but sort of forcing Barr’s hand, Barr then says, “It’s unprofessional for Berman to have responded.” But it’s like, unfortunately, Berman had to play on Barr’s terms, right? Barr sort of set the arena and Berman had to walk in, otherwise he would have been essentially, just going along with what I believe in his mind, he probably felt was an improper firing. And you and I can talk about this. I happen to believe that it is deeply problematic and warrants a lot longer conversation on why it’s being done and whether or not… Even though the president has the power to fire a US Attorney, there are constraints on that that we can talk about in a minute. And I think you’re actually weirdly an expert on all of these things, right? You’re an expert because you were the person who was fired first by President Trump.

Preet Bharara:              I investigated the US Attorney firings in 2007.

Anne Milgram:             Exactly. [crosstalk 00:09:00]-

Preet Bharara:              Then I got fired and now we’re talking about my successor being fired.

Anne Milgram:             And we’re talking about Gonzalez stepped down as a result of the investigation that you led when you were with Senator Schumer in the judiciary committee. But if people recall in 2007, 2006, Gonzalez fired, I believe it was, nine US attorneys and he alleged that it was for performance, but it looked incredibly political; particularly one US attorney that they were trying to get to engage in some voter fraud prosecutions that the US Attorney was not willing to do, I believe. I don’t remember all the details, but basically, the allegation was that Gonzalez was acting in a political manner, to get out US Attorneys who were perfectly competent. And so it does feel like you’re both an expert and it feels like deja vu on a lot of levels, but most importantly, Gonzalez’ power was checked. So even though he had the ability to fire those folks, people raised legitimate questions about the independence of US Attorneys because they enforce the criminal laws and cannot be used for political means. So I just want to make sure we’re clear on that.

Preet Bharara:              I want to get back to the letter again, because there’s a lot of important stuff in that, but let’s just go back to the basic idea. There’s no complaints about Geoff Berman. He’s doing a good job. No explanation has been given as to why now, four-and-a-half months before the election, you remove a well-performing United States Attorney in that district. What else do we know about that district? It’s prosecuted the president’s personal lawyer. The president was upset that Geoff Berman recused himself, so he couldn’t protect the president, arguably. He’s investigating this Turkish bank, that we know from the John Bolton book, President Erdogan wanted to do something about, and the president responds… If you believe John Bolton and in this case I do. “Well, I don’t have my people there in the Southern District.”

We have a whole bunch of reports that the president’s not happy with how SDNY operates and gets too close to home, and we have reports that there is an ongoing investigation of the president’s other personal lawyer, Rudy Giuliani. So on the one hand, you have all this evidence that SDNY-

Anne Milgram:             And you have [crosstalk] too; the president’s [crosstalk 00:10:54]-

Preet Bharara:              And [inaudible 00:10:54], right. You have all this evidence that SDNY is engaging in all this investigation of stuff that the president might not like. No evidence at all that Geoff Berman has done anything wrong. And by the way, it would have been one thing. If they said, “Well, Geoff Berman’s no good. He’s a no good lawyer. We’ve lost confidence in him.” instead-

Anne Milgram:             But they offered him other jobs, right?

Preet Bharara:              And which job do they offer him? This is the craziest thing to me.

Anne Milgram:             They offered him the head of the Civil Division, which is arguably, an equal job, because that job-

Preet Bharara:              Well, I don’t think so.

Anne Milgram:             But hear me out. I agree. You and I would say that being the Southern District US Attorney is more important in our world, but the head of the Civil Division is the head of the Civil Division for the United States of America. And so it is a really critical job. And the US gets sued all the time. They sue people all the time. It is a job that is Senate-confirmed. It is a very important job.

Preet Bharara:              But more crazy than that is the other job that he was offered was chair of the SEC.

Anne Milgram:             Yes. Also a very important job.

Preet Bharara:              But the point is, that’s the job Jay Clayton already had. Jay Clayton, nice guy. Did a decent job as chairman of the SEC, and I have a bit of trivia to mention in a moment, never tried a case, to my knowledge, never litigated a case to my knowledge, never been a prosecutor, never been an SDNY. So why would you take the guy, given his qualifications, who’s already performing well, it’s a few months to the election, at the SEC and swap him out with a person who doesn’t have as many qualifications to be the chairman of the SEC, right? It’s a bizarre swappage at that moment. My bit of trivia, by the way, which is probably not interesting to anybody except you and maybe some people in the Insider community, years ago, three years and a few months ago, on March 9th, I was meeting with Jay Clayton in my office.

Anne Milgram:             Oh, when you were fired? Don’t tell me.

Preet Bharara:              I was meeting with Jay Clayton in my office, when literally, as the meeting was wrapping up, I got a phone call. I saw on my cell phone that the deputy attorney general was calling me, the acting deputy, which is very peculiar. And it seemed to me something was up if he was calling my cell phone and not going through my assistant. Hastily ended the meeting and literally, one minute after Jay Clayton left my office, I got worried that I was being asked to resign. So I don’t know what that means. If there’s any karma there at all.

Anne Milgram:             No, it’s very unique. One thing I want to say about Jay Clayton, I don’t know him. I know nothing really about him other than his SEC work, which it seems fine, but I don’t know that there’s that much more to be said about it. But one of the things I noted was that there’s been some public reporting where he said that being the US attorney in the Southern District would really sort of burnish his litigation credentials, which is only funny because the really key credential to get the job is your ability to prosecute or defend; be involved in a criminal litigation matter.

Preet Bharara:              [crosstalk] a litigation department at your firm maybe.

Anne Milgram:             Yes. You don’t take the job as the US Attorney for the Southern District to learn how to litigate.

Preet Bharara:              Here’s what I think about the Jay Clayton situation and it’s speculation on my part, but I think it’s reasonable speculation, and it also involves what I think about Bill Barr and his reputation for candor and truth. I think Jay Clayton may have expressed some interest. I think that’s being leaked by the justice department to cover the tracks a little bit, of the attorney general. Jay Clayton’s not a dumb guy. He’s a smart person. And I think if he had known that his nomination to be the US Attorney in SDNY was going to be over the corpse of Geoff Berman… That’s a weird way of going about it. He would have been able to predict that there would’ve been a lot of opposition. Both local senators, Senator Gillibrand and Senator Schumer say they want Jay Clayton to withdraw himself from consideration.

Anne Milgram:             And Senator Graham has said that he won’t move forward the nomination without the home state Senator to [crosstalk 00:14:29]. And that’s really common practice.

Preet Bharara:              So he’s dead. So Jay Clayton is dead on arrival.

Anne Milgram:             The nomination is [crosstalk 00:14:33].

Preet Bharara:              My hypothesis is that Bill Barr played this fast and loose, that in the same way that he said blithely, in that press release falsely, that Geoff Berman was stepping down, he probably said to Jay Clayton, “Hey, listen, you want to come back to New York? You’re interested in… Guess what? Geoff Berman’s stepping down. This would be great for you.” It’s like, “Oh, that’s great.” I would do that; although I still think it’s a little odd. Don’t you think?

Anne Milgram:             Yeah. Here’s what I think. I am totally in agreement with you. I think now that it’s just a litany of excuses and made up stories to try to justify what was, in my view, a political act that was taken. I don’t know why it was taken. I don’t know if it’s any of the cases we just named. I also personally think it’s possible that they were starting to look at something else or someone else. We don’t know, we’re sitting on the outside, but there are a lot of reasons why the Southern District would be a problem to someone like President Trump or Attorney General Barr, right? They’re doing their investigations, they’re following the facts and the law, and so wherever that leads them. And frankly, it’s led them in a way that has caused a number of Trump’s associates to be charged and to be investigated.

And so I think that this strikes me as… Also, the timing. Why would you do it five months ahead of the election? It becomes incredibly political. And part of it is that also, you and I both know, and I just want to sort of suggest this to you… And again, I don’t want to speculate because I should say I have zero insight into what’s happening in the Southern District, but it’s not uncommon in the run up to an election that if there are cases that are outstanding, that haven’t been charged, that you want to have be charged and you don’t want them to become political footballs, that you go to the grand jury; that you sort of finish things before the next administration could potentially come in.

And who knows the president may be reelected, the president may not be, but you as an office, you basically would say, “Look, what are we going to get done? What are we going to hold?” And you’re going to make some decisions. So the timing to me could relate to that, to the fact that there are certain decisions that may be made in the next few months. Now, the other piece of this about Clayton is that there is no way… When the president fired you, this was a political firestorm, right? And there have been allegations repeatedly, of Bill Barr, of using his influence improperly; in the Michael Flynn case, most recently, in the Mueller report and the way he summarized it. There are a number of things we could list.

So the idea that Jay Clayton, who happens to have golfed with the president and maybe be a friend of the president, that you would expend this kind of political capital to take out the head of the most independent US Attorney’s office in the country, five months before the election, just because he wants to go back to New York and is interested in the job, it just defies logic and reason. So I don’t believe that. The exact reason, I don’t know.

Preet Bharara:              I think it’s probably somewhere in between; that he did have the ambition. It was kind of an unrealistic ambition on his part and an overreach, but at the same time, I think they’re hanging him out to dry and say, “Well, he wanted the job. He lobbied for the job.” That seems to be very deliberately put out there so that he looks bad. Now, this letter, the obnoxious letter that Bill Barr sent to Geoff Berman in which he says, “You have chosen public spectacle over public service,” which is a ridiculous statement, was viewed as a snarky letter, but it was actually, in my mind, a very substantial retreat from the position of Friday evening.

One, that letter doesn’t dispute in any way that Berman wasn’t intending to resign and that the falsehood in the prior statement remains a falsehood. He doesn’t address it at all. He said, “Oh, well, we were in ongoing negotiations about some other job in the department.” Second thing is he doesn’t mention at all the next day, what’s going on with Carpenito, the US Attorney in New Jersey, who, by the way, just as an aside, and this is a parochial aside, and this is lost because other people don’t necessarily think about this, the morale in the SDNY, and forgive me for this, morale in the SDNY, to have to be led by the US Attorney from an adjacent and competing district, New Jersey-

Anne Milgram:             Don’t trash talk my home state Preet.

Preet Bharara:              I’m not, but the idea that this other [crosstalk 00:18:26]-

Anne Milgram:             I’m teasing you. I know. I understand.

Preet Bharara:              … and the idea that it would be led part-time by another court appointed US Attorney from across the river, where we compete for the cases, would’ve been kind of crazy.

Anne Milgram:             Yes, it’s absurd. Also, just for the following reason, they’re both two very, very busy offices. And I would argue the Southern district is probably one of the strongest and busiest of all of the offices in the United States, including the Eastern District of Virginia and a couple of others, but in part, because the financial industry is in New York. And so-

Preet Bharara:              No, they’re huge offices. And the idea that you can just like, “Oh,” just throw this guy at the… They’re both big offices had have a lot of work. Nowhere is Carpenito mentioned in the Saturday letter. Instead, this to me is the concession, and we can discuss why there was a concession, it says… and news that was very welcome in SDNY and elsewhere, that the deputy, which would be the normal course, Audrey Strauss, the number two person at SDNY, would assume the acting position. That’s what happened when I was fired. Joon Kim, my deputy became the acting US Attorney.

Anne Milgram:             And that’s important because it makes it look far less political as well.

Preet Bharara:              Continuity; all sorts of continuity. Now, it’s just very interesting to me how Bill Barr goes around speaking about issues. A normal person would have said, “Having thought about it further, we’re not going to impose Carpenito in SDNY.” Instead, he just doesn’t mention it as if it didn’t happen; as if it wasn’t a big shell shock kind of thing and just sort of quietly says, “Oh, by the way, Audrey Strauss will take over.” The reason is I think there were legal problems with putting in Carpenito at the SDNY. There was a firestorm-

Anne Milgram:             Yeah. There’s a really interesting question under the appointments clause, because Carpenito was not Senate-confirmed. Under the Vacancies Act it says that you can swap in one Senate-confirmed person as an acting in another role. And here, Carpenito had not been Senate-confirmed. And so I think that raises huge issues.

Preet Bharara:              Look, the other thing is he might be… I don’t know, I’m just speculating again. He might be in the same position as Jay Clayton. He’s like, “I didn’t want a part of this drug deal,” as John Bolton referred to something during the impeachment conduct. “This is a firestorm. Why do I need any part of this?” And it’s possible that he decided, “I didn’t know we were going to be doing this over the objection of Geoff Berman and it was going to be a whole firestorm.” I really do think that Bill Barr walked to [foreign language 00:20:46]-

Anne Milgram:             I’m a little skeptical of that and I’ll tell why I’m skeptical of that, because I feel like a lot of folks have just made a decision to play ball with the president and the AG, and they’re playing. Look, I think they should understand they’re pawns in the chess match and that they get played and are being played in ways that they may like or not like. And look, Clayton might’ve been a little ambitious and a little bit willing to gamble it, that he could get the Southern District US Attorney job; even though again, I would argue he’s wholly unqualified for that job, though qualified obviously, for his current role and many other jobs.

Look, I have no idea, but I feel like the other piece of this is that there was enormous political pressure that was brought to Barr on Friday night, where people were basically saying, “We know about these ongoing investigations. Geoff Berman appears to have done a good job and to have been really conscious of following the law and the facts. He seemed a-political largely.”

And so people are basically scratching their head, particularly with all these big investigations of Trump associates. And then, you’ve got this funny legal piece happening with it. And so it sort of felt to me like the Carpenito piece was likely to lose. And also, they were going to sort of pay the price politically, every single day on it and Berman was still in office. And so it had set up this showdown that I think at the end of the day, the president was going to have to publicly fire Berman. And then it’s another level beyond that to put Carpenito in.

Preet Bharara:              Yeah. And that whole letter, notwithstanding the name calling, was a retreat, right? It was a retreat from Carpenito. It also was a concession that the attorney general could not directly fire Geoff Berman, right? He says, “You have been obstinate in some way. I’ve asked the president to fire you and he has done so.” Now the hilarious thing about that, and I think that at this point, that Berman was beginning to write his stepping down statement and he was going to leave the office because he was assured now, at least for the time being, that Audrey Strauss would take over and that gives some continuity to the office and some protection to the office, president gets asked the question, “Why are you firing Berman?” And the president says, “I’m not involved. I have nothing to do with that,” which, as I tweeted over the weekend, he finally, finally, finally, after three years, he learned the talking point. “I do not get involved with what goes on at the justice department.”

And he used it on the one occasion where he needed to say the opposite. Like it’s only under your authority that Berman can go and he’s like, “Oh no. What was that thing they told me to say?”

Donald Trump:              … a very capable attorney general, so that’s really up to him.I’m not involved.

Preet Bharara:              Now, then it gets us, I guess, to the question, one of the final questions or penultimate questions is why does Geoff Berman go at the end of the day? Especially since there’s this contradiction between Barr saying, “The president fired you,” and the president saying, “I wasn’t involved.” That’s another circumstance in which somebody is lying, not telling the truth. And I’m curious as to what you would have done. I think I would have done the same.

Having gotten the concession that Audrey Strauss would take over, and we can talk about her also, and having, I think, probably by Saturday afternoon, appreciating that the legal argument was not going to be necessarily a winner; although there’s an argument to be made that he couldn’t be fired, even by the president, that to put the office through that, to put the justice department through some litigation between a US Attorney and the Attorney General, I think was just too much. And there are all sorts of ways in which you will be undermined, trying to stay in your job while that issue is litigated. It just was untenable to me. [crosstalk 00:24:13]-

Anne Milgram:             I just want to say that I love that you just said, “I think what I would have done,” when actually, we know what you would have… We actually have some evidence of what you would have done. Just like, “Look”-

Preet Bharara:              But I didn’t have any legal argument at all. I accepted, at the outset-

Anne Milgram:             No, but you made the president fire you, right? And so you basically made them walk through the front door and do it. And that’s exactly what Berman did. And so I think what he did was largely what you did, which is to basically say, “Look…” and I believe it’s the right thing. “The president appoints the US Attorneys.” It feels to me like you’re putting yourself almost above the law and above any process to say that the president can’t fire you and to have a long drawn out battle, which would make it exactly like you said, it would make it about that person and not about the integrity of the office, which is not the way we want our government to run. And so I think he did the right thing.

He also stayed and got this huge concession and I think we should talk about it. And I’ve seen people argue publicly, that actually Barr is in a worst position now with Audrey Strauss as the acting head of the office. And there’s an argument for that. She is not a political appointment. Berman was a political appointment. He was a Giuliani law partner, he was a donor to the president. He’d shown himself to be independent as he ran the Southern District. But Audrey Strauss strikes me as a career prosecutor with none of the political connections or ties. And so I think what Berman did and basically taking a stand and getting the office run by his deputy, who he obviously has full confidence in and believes that she will complete investigations that should be completed and follow through, that, to me is a huge win also. And I sort of feel like maybe the public doesn’t understand that; what a big deal that actually is.

Preet Bharara:              So I have a qualification to that. So first, Audrey Strauss is widely respected. People say that. I think I only say it when I mean it here. Other people say it about all sorts of folks. Jay Clayton was called a distinguished attorney by Bill Barr, which is the thing that makes them qualified to be the US Attorney. I respectfully disagree with that. Audrey Strauss has been around for a long time. Private practice, she’s been in-house, she’s deeply principled, she has a lot of integrity, she cares about the institution of the Southern District and the Department of Justice. So that’s all good and great.

What I am worried about with these guys at the Department of Justice is that they always live to fight another day. And I don’t see anything at all in the letter that indicates that Audrey Strauss is protected in that position until someone else has confirmed, or they want to throw someone else in there; Carpenito or someone else that is more legally plausible.

Anne Milgram:             Yeah, it’s not done. I agree with you.

Preet Bharara:              I think in a couple of weeks, when things settle down and everyone’s, “Oh, happy; lived to fight another day,” Bill Barr announces on a Friday… By the way, that’s the other reason why some of this is sketched. Why are you announcing the stepping down of the US Attorney and a new nominee at 9:00-something PM on a Friday night? That’s the first thing that tells you there’s something weird about this whole thing. But I’m worried about Audrey being able to stay there for a number of months.

Anne Milgram:             Do you think he’s going to put in another deputy over her? Is that what you think? Because I don’t see any way they get someone nominated and confirmed now, before the election.

Preet Bharara:              No, but I think they have the ability. I think they have the legal ability; maybe Carpenito didn’t suffice. I think they have a legal ability to put in a different acting.

Anne Milgram:             Right. Somebody who’s been Senate-confirmed.

Preet Bharara:              Yeah. Look, that’s how Berman got in, in the first place, right? At some point. And maybe she has a period of time. I think she has 210 days. And so maybe they won’t be able to.

Anne Milgram:             120 days by the AGA. But you might be right because she’s stepping in from the deputy role. I don’t know [crosstalk] on that.

Preet Bharara:              Yeah. So I think she has 210 days, which I think takes us basically, to the inauguration. So when I left and my deputy became the acting, it was Attorney Joon Kim, I think what happened, I got to go back and refresh my recollection, he had his 210 days, after which, they put in Geoff Berman. So I think there’s some flexibility for them to do something here. I think we should go back. I need to research that a little bit more, but if she gets to stay in, great.

Anne Milgram:             But your point is well taken that this may not be done. But look, for the moment, I think the right thing happened and I think it preserves the integrity of the office. And I think it’s worth a longer conversation because obviously, the president gets to make a political appointment to be the head of all the Federal United States Attorney’s offices. And the president can, I believe, can remove people, but I think that there’s a really high bar to removing someone because of this question of political influence in criminal investigations, which we never want. And so it’s a rule of law question.

Preet Bharara:              So we only have a couple minutes left and we want to make this sort of a quick overview. I guess the final thing to talk about briefly, is what’s going to happen next. So I saw Jerry Nadler on television this weekend saying…

Jerry Nadler:                 We are having a hearing on Wednesday in which we have a number of whistleblowers from the Department of Justice who will testify. We have invited Berman and I’m sure he will… I didn’t know about Wednesday, but I’m sure he will testify.

Preet Bharara:              My view of that is that Geoff Berman is not going to have a lot to say. People asked me a lot of questions when I got fired. They wanted to know, “What were you working on that might’ve been sensitive, that might’ve caused the [crosstalk 00:29:04]-

Anne Milgram:             You can’t answer any of that.

Preet Bharara:              I didn’t answer any of it. I think it’s not proper to answer any of it, even though people keep asking again and again and again. So I don’t think he’ll go. I don’t think they’ll learn something. Look, I don’t know that we’re ever going to learn the reason why they got rid of him. I’ve never learned the reason why they got rid of me. It could be a generalized loyalty issue or irritation. Why does Trump get rid of a lot of other people who are competent and doing their job well?

Anne Milgram:             Right. And look, I think it’s also going to be clear that if we ever found out what really has been going on for the past period of time, it would be clear that people like Giuliani will have been lobbying, in my view, very high likelihood that they would be lobbying the president. They will have been hearing a lot about these and these investigations and how unfair they are. And so my sense is we may never unpack it, but we should all understand that there is definitely likely, in my view, to have been a high level of dissatisfaction with the independence of that office and with the investigations that come close to the president.

And I don’t think the president, by the way, has made any secret of believing that people who are loyal to him will not investigate [inaudible] and his associates and that he doesn’t want that to happen. And so it’s very interesting and it may be a specific case, it may not be. I will tell you this. I’m sure that if any charges come out or there are any cooperators announced or any guilty pleas that are announced, I’m sure that everyone will say “Aha.” And that may or may not be true. I agree with you. We’ll probably never know unless at some point, Geoff Berman writes his memoir like John Bolton, which I do not expect.

Preet Bharara:              All right. So that’s a quick 30 minutes on the crazy events of the weekend, which I hope people appreciate, is not a small deal. And I wish all the luck in the world to the rank and file folks at the SDNY. I miss them. And I’ve talked to a bunch of people over the past week and it’s a very tough time.

Anne Milgram:             It has to be so hard.

Preet Bharara:              It’s also going to be their fourth US Attorney in a little over three years. That kind of musical chairs thing does not work well in a big office. You can’t have-

Anne Milgram:             Do you know what else is different too, Preet? We’ve now seen AUSAs resign in the wake of the Stone and the Flynn cases, and step aside. And in my mind on Friday night, I wondered, before Barr’s statement on Saturday and before Berman agreed to step out, I sort of wondered if we wouldn’t see a revolt from some of the lawyers in the Southern District, because it’s a little bit cumulative. So what’s happened in Southern District, it’s not an isolation. It’s also on top of what all the AUSAs have been watching happening at the Department of Justice and nationwide. And so-

Preet Bharara:              And DC. One thing I wanted to mention was maybe part of the reason they thought they could pull this nonsense off in SDNY is they did a version of this in DC.

Anne Milgram:             And they got away with it; Jesse Lou.

Preet Bharara:              They got away with it. They moved Jesse Lou out, they imposed the other guy, who’s also out now. They changed the positions of the government on Roger Stone. As you mentioned, some people resigned from the case; all the line people resigned from the case. Like, “Look, we can get our business done in DC this way, we can do the same thing in Southern District,” and it didn’t work out quite the same.

Anne Milgram:             Agreed.

Preet Bharara:              Anne, I’m looking forward to our live taping tomorrow. Our lucky week; we get to do this twice.

Anne Milgram:             I know. I’m looking forward to it.

Preet Bharara:              So Insiders, join us. Join us tomorrow, 7:30.

Anne Milgram:             Sounds good. Talk soon Preet.

Preet Bharara:              Bye Anne.

Anne Milgram:             Bye.

Preet Bharara:              I hope you found our conversation informative. We’ll continue to follow this story and break down politically-charged legal matters making the headlines. You can now try the CAFE Insider membership free for two weeks. To join, head to CAFE.com/insider. That’s CAFE.com/insider. To all our Insiders, thank you for supporting our work.

That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The Executive Producer is Tamara Sepper. The Senior Audio Producer is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noa Azulai, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.

 

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CAFE Insider 6/22: The Firing of Geoff Berman – A Low Barr

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