Musical Chairs at Justice

The Barr v. Berman not-so-merry-go-round.

Musical Chairs at Justice

News reports last weekend described the ongoing contretemps between Attorney General Bill Barr and the once sitting (uncomfortably) U.S. attorney for the powerful Southern District of New York in Manhattan, Geoffrey Berman, a Trump appointee.

Berman’s independence apparently had been an impediment to President Trump’s and Attorney General Barr’s hands-on approach to federal law enforcement. Several hot political cases have been handled in the Southern District, most notably the conviction of former Trump lawyer Michael Cohen, the investigation of current lawyer Rudy Giuliani, and others.

On Thursday, June 18th, Berman refused to sign a Department of Justice letter criticizing New York City Mayor Bill de Blasio. Friday, June 19th, Barr announced Berman was being replaced by the SEC’s temporary (and unconfirmed by the Senate) chair, Jay Clayton, a Trump friend and appointee. Berman was shocked and refused to go.

After Barr offered Berman prospective jobs at the SEC or Justice Department, which he rejected, President Trump said on Saturday that “he was not involved” in removing Berman and that Barr was taking care of all this.

Trump later announced that Berman would be replaced by his deputy, Audrey Strauss, who would be the temporary U.S. attorney until Clayton was confirmed. Barr had suggested using the New Jersey U.S. attorney for this temporary role. Strauss was highly respected by Berman and his office, so he left.

The House Judiciary chair, Jerry Nadler, said, “The whole thing smacks of corruption and incompetence.” Senate Judiciary Chair Lindsey Graham said traditional confirmation procedures would be followed and that he’d seek input from the two New York senators, Kirsten Gillibrand (who’d blue-slipped Berman when he was originally appointed U.S. attorney) and Chuck Schumer, who quickly announced that Clayton would be an unacceptable replacement. You can’t make this stuff up!

All this chaos brings to mind an experience I had as a rookie organized-crime prosecutor in the Robert F. Kennedy Justice Department. My first assignment was to convene a grand jury to look into crime and corruption in Newport, KY, a small town across the river from Cincinnati, a conservative Ohio city whose conventioneers regularly visited Newport, a “sin city” with wide-open gambling, prostitution, and political corruption.

Soon after I arrived, I encountered a surprise, one I didn’t learn about in law school. My introduction to bizarre legal politics followed, demonstrating the eccentricities awaiting Kennedy’s hotshots when we stepped into areas outside the New Frontier.

The U.S. attorney there, appointed to office by John F. Kennedy, was waiting with his family at the courthouse to be sworn in. But the holdover U.S. attorney, an Eisenhower appointee, would not leave, complaining to us, “The president of the United States appointed me, and I will leave when the president of the United States tells me to go!”

The problem was shunted up to Nicholas Katzenbach, head of the Office of Legal Counsel. A few hours later, he called to advise me that an old Supreme Court case stated what should have been obvious to all concerned. As a practical matter, there was no way a president would personally call every appointee of his predecessor to ask them to leave; his very appointment of a successor implicitly did that.

This was a reasonable approach. But the sitting U.S. attorney wasn’t of a mind to be reasonable. I had the awkward task of telling the cantankerous, lame-duck U.S. attorney to get out of his office. He simply refused. More calls to Washington:

“He says he won’t go.”

“Go to the District Court judge and tell him to swear in the new U.S. attorney.”

I scooped up the new U.S. attorney, his wife, and family, who were all dressed up to witness his swearing-in, and we went downstairs to the judge’s chambers to ask him to swear in our man. The judge, well up in years and set in his now-idiosyncratic ways, refused to evict the ex-U.S. attorney.

Another call to DC:

“Mr. Katzenbach, the judge says he won’t swear him in.”

“Well, Ronnie, the law states that anyone can swear in the U.S. attorney. So you go down to the local drugstore, find a notary public, and get our goddamned U.S. attorney sworn in!”

I went back to the judge and told him what my instructions were and implored him to reconsider. We could eventually get our way, but I didn’t want to affront the judge I’d be arguing cases before, or publicly insult the now-former U.S. attorney, or demean the new one — soon to be my ally — both by traipsing down to the apothecary and spoiling a touching family moment by holding the ceremonial swearing-in of the new U.S. attorney in a drugstore.

Reason won out. At the last moment, the recalcitrant judge capitulated. A hurried swearing-in took place in his chamber. Informed of this, the now-former federal prosecutor reluctantly left. It was dawning on me that I was embarking upon what was not an entirely cerebral adventure.

Which brings me to today. All President Trump had to do was appoint his choice, Jay Clayton, in the first place. However, he wasn’t confirmed as SEC chair and isn’t likely to be as U.S. attorney, either. Berman seems to have won after all. Trump and Barr are stuck with a respected and independent U.S. attorney replacing Berman indefinitely.

Too bad Barr didn’t know what Katzenbach told me ages ago!

Ronald Goldfarb is a Washington, DC, attorney, author, and literary agent. His latest book, The Price of Justice, will be published in October.

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