President Trump has long made clear that, for him,
“rule of law” is a limited-utility slogan. By word and deed, he has
demonstrated his belief that the law and its instrumentalities exist
to serve him, personally and politically.
He has pressured individuals and institutions to
pervert their usual independent government missions to comply with a mandate
of pure
self-interest to protect the president’s friends and pursue the
president’s adversaries. This explains Trump’s ire at his former attorney
general, Jeff
Sessions, for recusing himself from the Russia investigation; recusal
made the protection part of the mandate harder to accomplish.
It also explains the president’s conduct at the heart
of impeachment —
using the diplomatic and financial levers of government to coerce Ukraine into
announcing a damaging investigation of Joe Biden, his chief political rival.
The episode is what former Russia adviser Fiona
Hill disparagingly referred to in her testimony as “a domestic
political errand.”
Trump’s latest domestic political errand involves the
office I led for almost eight years — the United States Attorney’s Office for
the Southern District of New York in Manhattan, commonly known as S.D.N.Y., a
place where politics is supposed to be off limits. The United
States Attorney Geoffrey Berman was fired on Saturday in a manner and
under circumstances that warrant criticism and scrutiny.
To understand the uproar over the termination in legal
circles, some context helps. S.D.N.Y. is famously and proudly independent. It
embraces its nickname, the “Sovereign
District of New York,” as a badge of honor. Sovereign, in the
understanding of those who have served there, does not mean rogue. It signifies
respect for law and scorn for political considerations. Republicans and
Democrats are equally in the cross hairs.
The career lawyers are hired without knowledge of
their politics or ideology. Mary Jo White, the
U.S. attorney who hired me to be a prosecutor, opened an investigation of Bill
Clinton, the president who appointed her, after he pardoned fugitive financier Marc Rich.
Such independent action would seem beyond this president’s comprehension.
That same commitment to independence is why I did
not return President Trump’s unusual phone call to me in March 2017,
after which he fired me.
The importance of reputational independence isn’t
codified in a rule or a statute, but it is rightly embedded in the D.N.A. of
any worthy law enforcement institution for a simple reason: That independence
gives comfort to the public that decisions about life and liberty will not be
influenced by politics or partisan interests, that those decisions will not
depend on an individual’s identity, wealth, fame, power or closeness to a
president — every judgment rendered without fear or favor, as the oath
commands.
It is this independence, and the public’s faith
therein, that Attorney
General Bill Barr, in cahoots with President Trump, threatened with
his dubious, if legal, removal of Mr. Berman.
What prompted the termination? We don’t know and
neither Mr. Barr nor President Trump has publicly said. Mr. Berman is a
registered Republican, donated to the Trump campaign and was personally
interviewed by the president. There has been no suggestion of impropriety or
incompetence.
Against that backdrop, the only sin ascribable to
S.D.N.Y. under Mr. Berman’s leadership, it seems, is violation of the
commandment to protect the president’s friends and pursue his rivals. The
president was unhappy with how the case against his former personal
lawyer, Michael
Cohen, was handled. The president was displeased that his handpicked U.S.
attorney, Mr. Berman, removed himself from the case, unable to protect Mr.
Trump from being incriminated
in open court.
Then there is the reported continuing investigation of
the president’s other personal lawyer, Rudolph
Giuliani, a former law partner of Mr. Berman. Perhaps that was a
bridge too far.
Maybe it had something to do with Turkey. According
to John
Bolton’s new book, in connection with a case involving the Turkish bank
Halkbank in S.D.N.Y. that the Turkish president, Recep Tayyip Erdogan, didn’t
like, Mr.
Trump told the Turkish leader that the “Southern District prosecutors
were not his people.”
I don’t know if any of these matters, individually or
in combination, provoked the firing. It may be impossible to know.
But given the president’s track record, the absence of
any other articulated reason and the peculiarity of the weekend termination,
neither Mr. Trump nor Mr. Barr deserves much benefit of the doubt. Nothing
about the weekend termination was regular or in good faith. It smacks of an
effort to get rid of someone perceived to be disloyal in favor of someone more
controllable. It may be legal, but it does not clothe the attorney general, or
the department he leads, in honor.
It began with Mr. Barr declaring that the chairman of
the Securities and Exchange Commission, Jay
Clayton, would be nominated by the president to be the next head of
S.D.N.Y., a somewhat odd choice. Mr. Clayton has never been a prosecutor and
never worked in S.D.N.Y. (as has every other U.S. attorney going back two
generations). The timing of the announcement, during the traditional news
graveyard of Friday night, was further suspect.
More important, Mr. Barr, in a pro forma note of appreciation, thanked Mr. Berman for his
service and said he was “stepping down” after two and a half years in the
prosecutor’s office. The second part of that statement was an apparent lie. As
Mr. Berman said in
his own release later the same night, “I have not resigned, and I have
no intention of resigning.”
In my experience, government officials don’t lie about
the intentions of others when they are acting in good faith. Perhaps the
attorney general thought Mr. Berman would be too cowed to contradict a
pre-emptive public announcement of resignation. He was wrong. The next day, Mr.
Barr sent a letter to Mr. Berman advising him the president had
fired him (though Mr. Trump added to confusion and irregularity later in the
day by saying, “I
was not involved.”).
Forcing out a well-performing U.S. attorney of the
same party, without explanation, on the eve of election, in favor of a less
qualified candidate who golfs with the president (as Mr. Clayton does), in the
midst of investigations known to be irksome to the president, does not reflect
a commitment to law enforcement independence.
Within the Department of Justice, hardworking public
servants — in the Southern District of New York and elsewhere — are angry,
dismayed and demoralized. I’ve spoken to many of them this weekend. They are
disheartened by the bad faith of Bill Barr and his determined efforts to
undermine prosecutorial independence. On Saturday, finally assured his
well-regarded and principled deputy, Audrey Strauss, would take over the reins, Mr. Berman
left S.D.N.Y. with his head held high.
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