U.S. Attorney for the Southern District of New York Geoffrey S. Berman. (Photo: David Handschuh/ALM)The standoff over the removal of Manhattan U.S. Attorney Geoffrey Berman escalated Saturday as Attorney General William Barr reportedly said the president has decided to fire Berman.
But that narrative quickly came under fire as President Donald Trump, on his way to a rally in Tulsa, Oklahoma, told reporters he was not involved in any decision to fire Berman.
“That’s all up to the attorney general. Attorney General Barr is working on that,” Trump said. “That’s his department, not my department. But we have a very capable attorney general, so that’s really up to him. I’m not involved.”
Meanwhile, the president of New York state’s largest bar group condemned the effort to remove Berman, and one former assistant U.S. attorney said the issue placed the Southern District in “uncharted waters.”
Barr issued a statement late Friday night announcing Berman’s resignation, but in short order Berman denied he had resigned and said he would not abandon his job.
A second version of the Justice Department statement omitted any language about a resignation tendered by Berman, and it also did not say Berman was being removed.
That sets up a likely dispute if Barr attempts to install Craig Carpenito, currently the U.S. attorney for New Jersey, as the top federal prosecutor in the Southern District on an acting basis.
That’s because Berman serves under Section 546(d) of Title 28 of the U.S. Code, which addresses the judiciary and judicial procedure. On April 25, 2018, the judges of the Southern District issued an order appointing Berman upon the expiration of the 120-day term after his interim selection by then-Attorney General Jeff Sessions.
Without a resignation from Berman or his ouster, there is no vacancy for Barr to appoint an acting U.S. attorney to fill.
A former acting U.S. attorney for the Eastern District of New York said Berman’s rejection of the resignation announcement may have stymied Barr. And he questioned the reasoning for the sudden Friday night announcement.
“Geoff Berman in the SDNY has called the Attorney General’s bluff: the statute for appointment and removal of U.S. attorneys [28 U.S.C. Section 541] , provides that the president, not the attorney general has the power to remove a court-appointed U.S. attorney,” said Kelly T. Currie, now a partner at Crowell & Moring. “It’s telling that Berman’s statement following Barr’s attempt to oust him by press release explicitly defended ongoing investigations in that office. Coming in the wake of Barr’s actions in the Roger Stone sentencing and seeking to dismiss the Michael Flynn case, it’s hard not to suspect that Barr’s move is anything but an effort to thwart investigations that could be damaging to the president or his associates.”
In his amended statement, Barr stuck to a July 3 start date for Carpenito. The second version also deleted a passage from the first statement that implied Berman would stay on to July 3 to aid in a transition to Carpenito.
One matter is clear: Under the court order appointing Berman, the Southern District judges said he could serve only until the nomination and Senate confirmation of a new U.S. attorney.
But there is a lack of clarity over whether the president or attorney general may remove a U.S. attorney installed by the district judges.
“As far as I know, I have never heard it employed,” said Elkan Abramowitz, a partner in Morvillo Abramowitz Grand Iason & Anello, and a former chief of the Southern District’s criminal division, of the removal of a U.S. attorney appointed by the court under Section 546(d).
“If Berman chooses to sue to keep his job, he will have great support from alumni of the Southern District U.S. Attorney’s Office who are interested in maintaining the historic independence of the office,” Abramowitz said.
Harry Sandick, a partner at Patterson Belknap Webb & Tyler and a former assistant U.S. attorney in the Southern District, said there are a number of possibilities for what could happen next.
“If [Berman] is terminated by the president … it’s not clear that the president or the attorney general could pick his replacement,” Sandick said. “We’re in somewhat uncharted waters here, because most of the time … most presidents do what their predecessors have done, which is to use the Senate confirmation process to get a U.S. attorney in place.”
If President Donald Trump does terminate Berman, Sandick said Berman would probably have to leave the physical space of the U.S. Attorney’s Office in Manhattan. But Berman’s legal options could include seeking a writ of mandamus or a declaratory judgment that he is entitled to stay in the job.
In the interim, it may fall to the judges in the Southern District to name a replacement, Sandick said, or Berman’s deputy could fill in as acting U.S. attorney for up to 300 days, as Joon Kim did after former U.S. Attorney Preet Bharara was fired.
“We are in uncharted territory here,” Sandick said. The administration has forced lawyers and observers to think about lots of complicated issues that no one has previously thought about because they were resolved by the participants trying to act in good faith.”
If Barr’s announcement involved an attempt to interfere with one or more of the ongoing investigations in the SDNY, Sandick said it’s hard to say which case it would be.
“There are so many cases that have been reported on that have some connection to the president or his associates,” Sandick said. “The Giuliani investigation, the National Enquirer/Michael Cohen case, the inaugural committee case, who knows what else is out there—Deutsche Bank being investigated, Epstein being investigated. So it’s possible that it does have something to do with one or more of those cases. Ordinarily it would be easy to figure out, because there wouldn’t be many cases being handled concerning the president and his associates. That’s an unusual event.”
Regardless of what happens in the courts in the next few days, Sandick said Congress may want Barr to testify soon.
“It’s a complicated situation and we don’t really know what animates it, what’s driving it,” Sandick said. “So one way to figure that out might be for Congress to require the attorney general to come, under oath, explain why he said Berman was stepping down when Berman said that wasn’t true, explain why the president is making this decision or why Barr is making this decision.”
State Bar President Scott Karson condemned the attempt to replace Berman, saying politics has no place in the administration of justice.
“The important investigations being carried out by the Southern District of New York, including the probe of former New York City Mayor Rudy Giuliani, must continue unabated,” Karson said. “Otherwise, ordinary citizens will have no faith in our justice system.”
Shortly after the first Justice Department statement, Trump announced that Securities and Exchange Commission Chairman Jay Clayton would be nominated as the U.S. attorney for the Southern District.
The fate of that nomination is in doubt since Sen. Chuck Schumer said Clayton should withdraw from consideration, implying he would object to the nomination. In a separate statement, Sen. Lindsey Graham, chairman of the Senate Judiciary Committee, said he will honor the “blue slip” process, where home-state senators may put a hold on nominations.
“I have not been contacted by the administration in this regard” Graham said Saturday. “However, I know Mr. Clayton and believe him to be a fine man and accomplished lawyer. As to processing U.S. attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination.”
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