The Memo: Storm brewing after chaotic Berman firing

Shock over the Trump administration’s firing of a top government prosecutor is reverberating across the political world, but not even the president’s foes are confident he will face consequences.

Legal experts — especially those critical of what they see as President TrumpDonald John TrumpProtesters tear down statue of Christopher Columbus in Baltimore 'Independence Day' star Bill Pullman urges Americans to wear a 'freedom mask' in July 4 PSA Protesters burn American flag outside White House after Trump's July Fourth address MORE’s erosion of the independence of the justice system — are appalled at the firing of Geoffrey Berman in contentious circumstances.

Berman was spearheading a number of investigations that touched on the president and his circle in his role as the U.S. attorney for the Southern District of New York (SDNY).

ADVERTISEMENT

“If the president fired Berman in order to forestall or prevent an ongoing investigation, then it is absolutely clear that fits the definition of obstruction of justice, and it is a crime,” said Claire Finkelstein, a professor at the University of Pennsylvania Law School and the director of its Center for Ethics and the Rule of Law.

Referring to Berman, Finkelstein added, “He was obviously the lynchpin for a lot of important investigations.”

Among the matters currently under investigation by the SDNY is whether the president’s attorney, former New York City Mayor Rudy GiulianiRudy GiulianiOusted Manhattan US Attorney Berman to testify before House next week Sunday shows preview: With coronavirus cases surging, lawmakers and health officials weigh in Hillicon Valley: Democrats introduce bill banning federal government use of facial recognition tech | House lawmakers roll out legislation to establish national cyber director | Top federal IT official to step down MORE, violated laws on lobbying for foreign interests in relation to Ukraine.

To many observers, the ouster of Berman brought to mind the firing of FBI Director James ComeyJames Brien ComeyBolton book sells 780,000 copies in first week, set to surpass 1M copies printed The Seila Law case: Liberty and political firing A new age of lies? MORE in May 2017. The push against Comey led to the appointment of special counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE and put a cloud of suspicion over Trump that lasted roughly two years and was never conclusively dispelled.

A chaotic sequence of events over the weekend was sparked Friday evening when Barr announced that Berman had stepped down. Berman shot back with a statement that he had not resigned, nor did he have any intention of doing so.

On Saturday, Barr sent Berman a letter saying that Trump had officially fired him. The same day, Trump told reporters that he was “not involved” in the decision.

ADVERTISEMENT

On Monday, the White House sought to put further distance between Trump and the firing.

White House press secretary Kayleigh McEnany told reporters at a briefing that the president had been involved only “in a sign-off capacity.”

“The attorney general was taking the lead on this matter. He did come to the president and report to him when Mr. Berman decided not to leave, and at that point is when the president agreed with the attorney general,” McEnany said.

Further complicating the political dynamics for Trump, no compelling rationale for the firing of Berman has been given. In addition, an effort to replace him with Securities and Exchange Commission Chairman Jay Clayton appears to have run aground, at least for now.

Clayton would need to be approved by the Senate. But Senate Judiciary Committee Chairman Lindsey GrahamLindsey Olin GrahamJaime Harrison seeks to convince Democrats he can take down Lindsey Graham Hillicon Valley: Senate panel advances bill targeting online child sexual abuse | Trump administration awards tech group contract to build 'virtual' wall | Advocacy groups urge Congress to ban facial recognition technologies Senate panel advances bill targeting online child sexual abuse MORE (R-S.C.), usually a staunch Trump ally, has indicated he will not fight a de facto veto that Clayton’s home state senators can use against him. The senators in question are both New York Democrats: Senate Minority Leader Charles SchumerChuck SchumerPublic awareness campaigns will protect the public during COVID-19 Republicans fear backlash over Trump's threatened veto on Confederate names Overnight Defense: House panel votes to ban Confederate flag on all Pentagon property | DOD report says Russia working to speed US withdrawal from Afghanistan | 'Gang of Eight' to get briefing on bounties Thursday MORE and Sen. Kirsten GillibrandKirsten GillibrandDemocratic lawmakers call for expanding, enshrining LGBTQ rights The Hill's 12:30 Report: Fauci 'aspirationally hopeful' of a vaccine by winter The Hill's Morning Report - Officials crack down as COVID-19 cases soar MORE. Both have called on Clayton to withdraw his name from consideration for the post.

Berman’s interim replacement will be his former deputy, Audrey Strauss, a well-respected career prosecutor who virtually no one expects to take the SDNY’s foot off the gas in relation to any ongoing investigations.

Caroline Polisi, a criminal defense attorney and a partner at Armstrong Teasdale, described the idea of appointing Clayton, who has never been a federal prosecutor, as “absolutely ridiculous.”

Polisi described the latest episode as “shocking” but asserted that it was part of a pattern of behavior from the Trump administration.

“It just keeps happening, and each time it happens we all say we can’t believe that happened — and it just happens again,” she said.

The key question for many Trump critics is whether the president or Barr will face any adverse consequences as a result of Berman’s ouster.

House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerNadler wins Democratic primary Voters must strongly reject the president's abuses by voting him out this November Clyburn threatens to end in-person coronavirus committee hearings if Republicans won't wear masks MORE (D-N.Y.) told CNN’s “State of the Union” on Sunday that any attempt to impeach Barr would be “a waste of time,” even though he suggested the attorney general deserved that fate.

Legal experts are more focused on whether any ongoing investigations will be constrained or abandoned — or whether Barr and Trump could in short order move to dismiss Strauss as well.

ADVERTISEMENT

The SDNY has been long known for its independence, and the fact that Manhattan falls within its jurisdiction raises the dangers for Trump, since that is where his businesses have long been headquartered.

“The stakes are higher because at this point Barr has pretty much tamed the entire department except for the SDNY,” said Harry Litman, a former U.S. attorney for the Western District of Pennsylvania. “Because they are in Manhattan, there seem to be five, six, eight investigations into Trump that they are undertaking,”

Meanwhile, however, other Trump foes cast their minds back to Trump’s survival of the Comey firing and all the other allegations investigated by Mueller. They lament that the president feels unshackled as a result.

Richard Painter, a law professor at the University of Minnesota and a former Republican who is now a Trump critic, complained, “Trump got away with it, and he’s doing it again.”

 

The Memo is a reported column by Niall Stanage, primarily focused on Donald Trump’s presidency.