After this was written Attorney General Barr sent Geoffrey Berman a letter on the afternoon of June 20, 2020 informing him that Berman had been fired by Trump and that Deputy United States Attorney Audrey Strauss would be acting United States Attorney until Jay Clayton, currently Chairman of the S.E.C., is confirmed for the post by the Senate.

This purports to comply with the Vacancies Reform Act, a government-wide law which requires that only Berman’s principal deputy may serve as acting United States Attorney when the Act is used.

Berman promptly resigned stating that the office was in good hands with Audrey Strauss. He’s right.

In my opinion, Mr. Clayton will not be confirmed.




Late on the night of Friday, June 19, 2020 Attorney General William Barr issued a press release stating that United States Attorney for the Southern District of New York Geoffrey Berman was “stepping down.”

Except he wasn’t.

Barr’s press release was quickly followed by a Berman statement that he had not resigned and is still in office.  On the morning of Saturday, June 20 Berman went to work at his office at the Silvio J. Mollo United States Attorney’s office in downtown Manhattan.

Berman’s appointment to his job was preceded by a highly unusual private meeting between him and the president in the Oval Office two weeks after Trump fired FBI Director James Comey. Taken together with Berman’s having practiced law in the same law office as Rudy Giuliani and his contribution to Trump’s campaign, many concluded that he was in the tank for Trump and Giuliani.

United States Attorneys are appointed by the president with the advice and consent of the Senate.

Berman’s route to the office made his confirmation by the Senate problematic.  At Trump’s request, pursuant to statute, Attorney General Jeff Sessions appointed Berman to his post in January, 2018  for 120 days. Under the same statute, after the 120 days, the judges of the District Court for the Southern District unanimously appointed Berman to his post “until the vacancy is filled.”

Today, Berman is not the “acting” United States Attorney but is the fully empowered United Sates Attorney. Getting the judges to oust Berman has a zero chance.

There is another statute, the Vacancies Reform Act, that may bear upon the propriety of dismissing and replacing Berman. The interaction of the statute under which Berman was appointed, first by the Attorney General and then by the judges, and the Vacancies Reform Act (and which takes precedence) is a matter of conjecture.

I believe that Barr is relying on the Vacancies Reform Act.

The consistently appalling Barr-Trump combo is trying to oust Berman because Trump doesn’t like Berman’s investigations getting close to him and his friends.

Among the investigations that we know are the indictment of a Turkish Bank that Erdogan was promised would not go forward; Giuliani’s finances after the indictment of Giuliani associates Parnas and Fruman; the making of cases through the cooperation of Trump “fixer” Michael Cohen; Deutsche Bank, the Trump bank; and cases referred to the southern district  by Mueller’s office after that investigation ended.

The Barr-Trump axis may know or suspect Berman investigations that the public does not.

The bad blood started soon after Berman was named. On April 8, 2018, the FBI raided Michael Cohen’s home, office and hotel room and took records relating to Trump’s payoffs to two women in addition to bank records. Trump promptly railed against the FBI action for raiding Cohen,  calling it a “witch hunt,” a phrase to which he has become accustomed, and an “attack on our country.”

But Berman promptly recused himself from the Cohen case thus causing consternation in the Oval. Trump expected Berman to stand up for him. Nothing doing.

What has made Geoffrey Berman an independent prosecutor guided only by the facts and the law?

The answer is, we don’t know.

But history provides some possible answers. On reaching high office many people change, rise to the occasion and are transformed by the realization that public office is a public trust.

Justice Hugo Black becoming a champion of liberty after a tawdry past in racial politics? Although it’s too early to tell, perhaps Justices John Roberts and Neil Gorsuch? And many others.

The change on reaching high office is exemplified by one of my favorite  Mayor Ed Koch stories (I have a lot of them!).

Just a few weeks after being sworn in as Mayor, I saw Ed and said, “That’s a great new suit!” He replied, “Tom, this is an old suit. The guy in it has changed.”