Allegedly Weekly

What Happened to Geoffrey Berman?

Greetings from Allegedly, a newsletter bringing you New York City courts, crime, and occasional cooking coverage. 

We weren’t going to launch until we had an actual plan in place — you know, minor details like how often we would publish and boring money stuff — but the Manhattan U.S. Attorney Geoffrey Berman’s bombshell departure sped up our timeline. 

What, exactly, happened in the Southern District of New York? 

Very short answer…

Geoffrey Berman said Saturday that he was leaving his position as U.S. Attorney for the Southern District of New York, “effective immediately;” this was after Donald Trump’s Attorney General, Bill Barr, said Berman was fired, which came after a showdown over whether he would leave. 

Long answer…

Barr issued a statement Friday night saying that Berman was leaving. Per Barr’s statement, Trump intended on nominating Jay Clayton, presently the chairman of the Securities and Exchange Commission, for Berman’s gig. Clayton “has no experience as a federal prosecutor;” he’s a veteran corporate lawyer with connections to Wall Street, The Washington Post notes. 

Barr also claimed that “on my recommendation,” Trump had picked Craig Carpenito, who’s now the New Jersey U.S. Attorney, to be acting U.S. Attorney for SDNY while Clayton goes through the Senate confirmation process. Carpenito’s appointment, Barr said, would be effective on July 3. 

Barr said that “Craig will work closely with the outgoing United States Attorney to ensure a smooth transition.  I thank Craig for his continued service and for taking on this important interim responsibility.”

Berman came up at the end of Barr’s statement.

“Finally, I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York.  With tenacity and savvy, Geoff has done an excellent job leading one of our nation’s most significant U.S. Attorney’s Offices, achieving many successes on consequential civil and criminal matters.  I appreciate his service to the Department of Justice and our nation, and I wish him well in the future.”

Apparently, this was news to Berman, who issued his own statement shortly thereafter: 

“I learned in a press release from the Attorney General tonight that I was ‘stepping down’ as United States Attorney.  I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York.  I will step down when a presidentially appointed nominee is confirmed by the Senate.  Until then, our investigations will move forward without delay or interruption.  I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor – and intend to ensure that this Office’s important cases continue unimpeded.”

On Saturday morning, Berman went to the office, reportedly saying outside, “I’m just here to do my job.”

Barr, meanwhile, was not happy about Berman’s statement, sending this letter on Saturday: 

“I was surprised and quite disappointed by the press statement you released last night. As we discussed, I wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as United States Attorney and was hoping for your cooperation to facilitate a smooth transition. When the Department of Justice advised the public of the President’s intent to nominate your successor, I had understood that we were in ongoing discussions concerning the possibility of your remaining in the Department or Administration in one of the other senior positions we discussed, including Assistant Attorney General for the Civil Division and Chairman of the Securities and Exchange Commission. While we advised the public that you would leave the U.S. Attorney’s office in two weeks, I still hoped that your departure could be amicable.

Unfortunately, with your statement of last night, you have chosen public spectacle over public service. Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place.  

The letter also said: 

To the extent that your statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court-appointed U.S. Attorney is subject to removal by the President. See United States v. Solomon, 216 F. Supp. 835, 843 (S.D.N.Y. 1963) (recognizing that the “President may, at any time, remove the judicially appointed United States Attorney”); see also United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (same). Indeed, the court’s appointment power has been upheld only because the Executive retains the authority to supervise and remove the officer.

Your statement also wrongly implies that your continued tenure in the office is necessary to ensure that cases now pending in the Southern District of New York are handled appropriately. This is obviously false. I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.

Trump’s subsequent comments only added to the confusion. 

Per the Associated Press, Trump told reporters: “That’s all up to the attorney general. Attorney General Barr is working on that. That’s his department, not my department…I wasn’t involved.”

Early Saturday evening, Berman issued another statement, saying he would leave:

“In light of Attorney General Barr’s decision to respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become Acting U.S. Attorney, I will be leaving the U.S. Attorney’s Office for the Southern District of New York, effective immediately.  It has been the honor of a lifetime to serve as this District’s U.S. Attorney and a custodian of its proud legacy, but I could leave the District in no better hands than Audrey’s.  She is the smartest, most principled, and effective lawyer with whom I have ever had the privilege of working.  And I know that under her leadership, this Office’s unparalleled AUSAs, investigators, paralegals, and staff will continue to safeguard the Southern District’s enduring tradition of integrity and independence.”

Why was there a standoff?

Judges in Manhattan Federal Court voted unanimously in April 2018 to appoint Berman for the SDNY job. Trump’s former Attorney General, Jeff Sessions, had appointed Berman as interim U.S. Attorney in January of that year; his 120-day term was going to end. Because Trump hadn’t appointed anyone, the judges voted Berman in, per The New York Times.  According to federal law, Berman would serve in this role until the Senate green-lighted a Trump nominee.  The Times described this as a “seldom-used power.”

 So, when Berman said he wasn’t leaving, there was extensive debate whether he had to  — or whether he didn’t have to because judges had appointed him. 

Why does this matter?

The Southern District of New York and Washington, D.C. District are easily the most important U.S. federal courts. SDNY goes for the big cases — from mobsters to terrorists to made-for-tabloid fraudsters like Billy McFarland, of Fyre festival ignominy. 

When Berman became acting U.S. Attorney for SDNY., it raised eyebrows. Remember, Trump had fired Berman’s predecessor, Preet Bharara, who was known for fighting corruption. Everyone kind of wondered if Berman, a Republican, would live up to SDNY’s rep for independence — or if he would just be a Trump acolyte. 

As it turns out, Berman seemed to uphold the ethos that earned SDNY its nickname, Sovereign District of New York. 

Not only did Berman’s office charge Jeffrey Epstein for sex trafficking underage girls — SDNY prosecutors there pursued cases and investigations with links to Trump.  Berman’s office busted Trump’s ex-attorney, Michael Cohen. (Berman was recused from Cohen’s case.) Berman’s office is reportedly investigating Trump’s personal attorney, former New York City mayor Rudy Giuliani.  

One SDNY prosecutor told Allegedly, “Geoff came in amidst a lot of skepticism and outperformed everyone’s expectation. It underscored an SDNY culture that crosses party lines even today…”

“He was a surprising source of self-deprecating humor and someone who had the wisdom to staff the executive ranks with lawyers more accomplished than himself — what ultimately proved a show of strength, not weakness. He fought for the office’s independence behind the scenes and made his best 24 hours his last 24 hours.” 

“He had been something of a father figure for the office during some difficult times for some of its beloved members — illness, death, heartbreaking family losses. And he earned his place in our family. He also had done an admirable job leading the office through the unprecedented challenges of COVID-19.”

The Times described Saturday’s developments as “the culmination of longstanding tensions between the White House and Mr. Berman’s office” given how his office pursued “a series of highly sensitive cases that have troubled and angered Mr. Trump and others in his inner circle.” 

The newspaper points out that this intensifies “criticism that the president was carrying out an extraordinary purge to rid his administration of officials whose independence could be a threat to his re-election campaign.” 

What, exactly, does Berman’s departure mean?

Well, Berman’s second-in-command, Audrey Strauss, is going to be acting U.S. Attorney for the Southern District — not Carpenito.  The Times noted that  Strauss “assumed responsibility for several of the prominent investigations from which Mr. Berman had recused himself” — including the Cohen case.  

“Now that he has accepted it, it means that there will be more continuity than there would have been, since the deputy is taking over. That doesn’t mean [Main Justice] won’t be as cautious about her as they were about him. She will absolutely play it straight — the question is whether Main Justice will give her the level of autonomy that U.S. Attorneys typically enjoy,” Daniel Alonso, who headed the criminal division at the U.S. Attorney’s Office, Eastern District of New York, said in an email.

“Audrey Strauss will presumably be aligned with Berman and the rank and file, whereas [Carpenito] would be an outsider vis-a-vis the S.D.N.Y, handpicked by Barr,” Alonso also said.

David Weinstein, a white-collar criminal defense lawyer with Hinshaw & Culbertson and a former federal prosecutor in Miami, explained in an email: “In the normal course, which today nothing seems normal any more, the investigations would continue and proceed to their conclusion.  They are run by the line prosecutors and agents and reviewed by the USA if necessary.  If there was sufficient evidence to file charges, charges would be filed.”  

And that’s it…for now.

Allegedly will be back soon, we promise!

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