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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 TrumpGeraldo Rivera on Trump sowing election result doubts: 'Enough is enough now' Murkowski: Trump should concede White House race Scott Atlas resigns as coronavirus adviser to Trump 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).

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“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 GiulianiArizona certifies Biden's victory over Trump Krebs says allegations of foreign interference in 2020 election 'farcical'  Trump campaign loses appeal over Pennsylvania race 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 ComeyCarter Page sues over surveillance related to Russia probe Top Republicans praise Trump's Flynn pardon The new marshmallow media in the Biden era 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.

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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 GrahamGraham: Trump should attend Biden inauguration 'if' Biden wins Biden budget pick sparks battle with GOP Senate Georgia governor rejects Trump's call to 'overrule' elections officials with emergency powers 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 SchumerOvernight Health Care: Moderna to apply for emergency use authorization for COVID-19 vaccine candidate | Hospitals brace for COVID-19 surge | US more than doubles highest number of monthly COVID-19 cases The five biggest challenges facing President-elect Biden Collins urges voters to turn out in Georgia runoffs MORE and Sen. Kirsten GillibrandKirsten GillibrandOvernight Defense: Defense bill among Congress's year-end scramble | Iranian scientist's assassination adds hurdles to Biden's plan on nuclear deal | Navy scrapping USS Bonhomme Richard after fire Democratic senators urge Facebook to take action on anti-Muslim bigotry Social media responds to Harris making history: 'I feel like our ancestors are rejoicing' 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 NadlerThis week: Congress races to wrap work for the year Top Republicans praise Trump's Flynn pardon Democratic impeachment leaders blast Trump's pardon of Flynn 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.

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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.