Three Plausible—And Troubling—Reasons Why Barr Tried to Force Berman Out

The big question is why.

Why would the president fire a federal prosecutor just five months before an election, with no indication of wrongdoing on the prosecutor’s part, in a manner sure to ignite controversy?

Three days into the scandal around the abrupt dismissal of the U.S. attorney for the Southern District of New York, Geoffrey Berman, we still have no answers.

Paul Rosenzweig: Why Bill Barr got rid of Geoffrey Berman

The administration’s handling of Berman’s firing was comically—and typically—inept: The Justice Department announced late on Friday that Berman would be stepping down, only for Berman himself to issue an extraordinary statement indicating that he had no intention of doing so. By Saturday night—after receiving two separate letters from the Justice Department demanding his departure—Berman had officially resigned, having secured the appointment of his chosen deputy as his successor, rather than the Justice Department’s preferred pick. (Donald Trump seemed to come close to derailing the entire thing by declaring himself to be “not involved” just hours after Attorney General William Barr announced that the president himself had dismissed Berman, but the prosecutor departed soon after.)

The twists and turns made for a rollicking 24 hours. And yet, for all the drama, the little matter of why Trump and Barr decided to get rid of Berman in the first place remains a mystery.

There are a range of plausible explanations. Some are worse than others, though none represents what one would like to see from the Department of Justice.

The most benign explanation—though not exactly a comforting one—is simple patronage. According to Barr’s original statement, Trump had decided to appoint Jay Clayton—currently the chairman of the Securities and Exchange Commission—to the job. Clayton, according to The New York Times, had recently golfed with the president at Trump’s club in Bedminster, New Jersey, and had expressed interest in the U.S. attorney job. So one possibility is that Berman’s removal was merely an effort to clear the path for a person friendly with the president to get a job he wanted. In support of this possibility is Barr’s claim in his letter to Berman that he offered Berman other possible senior jobs—jobs that would arguably be promotions, such as running the SEC or the Justice Department’s Civil Division.

But five months before an election in which the president may not prevail is a strange time to be doling out patronage jobs. The Senate confirmation process for Clayton would likely eat up most of the remaining time in Trump’s first term—if it moved at all. So this explanation would make a great deal more sense if this had all gone down after the election or in the first few months of a second Trump term. Normally, presidents are looking for staff stability in election years, not shake-ups.

David Frum: Trump is losing credit where he may soon need it most

A second, more troubling possibility is that Berman’s removal was retaliatory. Though Berman himself was recused, Berman’s office was responsible for the prosecution of Michael Cohen, Trump’s former personal lawyer, and for the related investigation of figures associated with the Trump Organization. It also indicted Halkbank, a Turkish government-owned bank accused of violating Iranian sanctions, causing friction between Trump and Turkish President Recep Tayyip Erdoğan.

Of course, Trump has a long history of firing people who cause him trouble—often those who are investigating him—as a means of retribution. The string of recent firings of inspectors general is one example. The punishment of witnesses who testified in the House impeachment investigation, several of whom were removed from their positions or denied promotions, is another. The firing of Attorney General Jeff Sessions for his temerity in recusing himself from the Russia investigation is still another. So perhaps Berman was removed from his job not to create room for someone else, but because now is a good moment for a vindictive gesture.

Then there is the third possibility, the most sinister: that the removal of Berman was a specific effort to interfere with a specific investigation. Berman’s office is currently investigating another presidential lawyer, Rudy Giuliani. And the Halkbank case is still ongoing. The most acute concern, therefore, is that the Berman firing was not retaliation for something he had already done, but an effort to prevent his office from doing something in the future. Trump does this as well. Don’t forget that the day after Trump fired FBI Director James Comey, he boasted to the Russian foreign minister that by dismissing Comey he had relieved “great pressure” on himself.

It is tempting to assume that Trump and Barr acted with urgency because Berman must have been about to do something politically dangerous to the president, that some investigation must have been coming to fruition. And that may be right; this far into the Trump administration, far be it from us to foreclose the possibility that something unexpected is lurking beyond the horizon. But revenge may also be, in itself, important enough to the president for him to take this step at an inopportune time. Or perhaps, for whatever reason, Barr believed that he had Berman on board to step into another role at the Justice Department or the SEC, and that releasing the news late on a Friday in the middle of a pandemic would lead to a shortened news cycle. Organization and planning have never been strengths of this administration.

This is not the first time President Trump has picked a fight with the Southern District of New York. He fired Berman’s predecessor, Preet Bharara, just months into his administration, and after Bharara rejected unwelcome overtures from the White House. Also, in 2018, the president asked Acting Attorney General Matthew Whitaker to exert control over the ongoing SDNY investigation into Cohen—ironically, by placing Berman, who was already the U.S. attorney but had recused himself from the probe, in charge. And in his new book, former National Security Adviser John Bolton writes that Trump told Erdoğan that he would force the SDNY to scuttle the Halkbank investigation by putting in his own people.

Those last two efforts failed—and it appears that Trump’s latest gambit has as well. The office is, for the time being, in the hands not of a political crony of the president or a handpicked Barr protégé, but of Berman’s own chief deputy, Audrey Strauss, whom The New York Times dryly describes as “unlikely to be influenced by political motives.” The office’s leadership will probably not change anytime soon, since there is little prospect of getting a new nominee confirmed in a timely fashion, the election is coming up, and Democrats in the Senate would have a careful eye on the entire situation. So if the goal was to thwart some specific investigation, that seems unlikely to succeed.

But the importance of these skirmishes is not only whether Trump wins or loses in each individual instance. They add up to a broader campaign of intimidation, part of an incessant effort to politicize law enforcement—even as both Trump and Barr insist that their opponents are the ones doing the politicizing. On this, the president and his allies are, tragically, succeeding. If the goal of Berman’s firing was to send yet another message to law-enforcement officials around the country that those who are not on the team will have to look over their shoulders at all times as long as Trump is president and Barr is running the Justice Department—well, that message has been heard loud and clear.