A Friday night massacre that backfired
By
Opinion writer
June 20, 2020 at 3:16 p.m. CDT
The
Justice Department moved abruptly Friday night to oust Geoffrey S. Berman, the
U.S. attorney in Manhattan overseeing key prosecutions of President Donald
Trump’s allies and an investigation of his personal lawyer Rudolph W. Giuliani.
But Berman said he was refusing to leave his post and his ongoing
investigations would continue.
“I have not resigned, and
have no intention of resigning, my position,” Berman said. His statement came
hours after Attorney General William Barr said Berman was stepping down from
his position.
It is
telling that we do not know which of many possible investigations may have
triggered Barr’s ire. There are so many to choose from. AP reports, “The move
to oust Berman also comes days after allegations surfaced from former Trump
national security adviser John Bolton that the president sought to interfere in
an Southern District of New York investigation into the state-owned Turkish
bank in an effort to cut deals with Turkish President Recep Tayyip Erdoğan.”
There are also the original investigations into campaign finance violations for
which Michael Cohen was prosecuted, the alleged
insurance and tax irregularities that Cohen alluded to in testimony to
Congress, and the investigations into Rudolph W. Giuliani’s nefarious activities in Ukraine.
You need a scorecard to keep track of Trump’s legal vulnerabilities.
Berman
is an acting U.S. attorney appointed by the court and therefore likely cannot
be fired by Barr until his successor is confirmed. His courageous refusal to
depart may buy him time, or at the least force Trump personally to fire Berman,
thereby making Trump directly responsible for what appears to be yet another
attempt at obstruction of justice.
Constitutional
scholar Laurence Tribe tells me, “Under 28 U.S.C. § 546(d), Berman continues to
serve as the court-appointed U.S. Attorney for SDNY until the temporary vacancy
he was appointed to fill is filled through Senate confirmation of a permanent
successor. Even if the president could remove Berman personally, Barr can’t.”
He points out that the U.S. attorney from New Jersey Craig Carpenito sent to
temporarily fill Berman’s spot has his own legal minefield. If Carpenito “tries
to exercise power as the ostensible interim U.S. Attorney for SDNY as of July
3, as Barr says he will, he’ll arguably be committing the federal crime of
‘falsely assum[ing] to be an [executive] officer’ 18 U.S.C.§ 912,” Tribe
argues. “Whether any of these legal obstacles will prove decisive isn’t clear,
of course, but the Supreme Court’s census decision last year, and its DACA
decision a few days ago, should serve as reminders that, in America, the rule
of law still matters.”
The
latest turn of events is more embarrassment for self-deluded Republicans like
Sen. Susan Collins (R-Maine) who voted to acquit Trump during his impeachment
trial and who thought Trump had learned his lesson. This is one of many efforts
to fire investigators including five inspectors general, at
least three of whom were looking into Trump
administration wrongdoing. (Let’s not forget Barr’s attempt to un-prosecute
Michael Flynn after the latter pleaded guilty to lying to the FBI.)
In this
dizzying display of contempt for the Constitution and obstruction of legitimate
investigations into the Trump administration, we see a level of lawlessness
that puts Richard M. Nixon to shame. We should consider several aspects of the
burgeoning constitutional crisis. First, how bad must the investigations be for
Trump and company that Barr was willing to take the fight public, where his
blatant lying (this time falsely asserting Berman resigned) would be exposed?
Second, Barr’s attempts in trying to belatedly clear Flynn and now to cut off
investigation(s) are arguably efforts at obstruction of justice, which the next
administration must investigate and, if warranted, prosecute. Third, any
Justice Department official aiding Barr, arguing in court on his behalf or
signing briefs in support of firing Berman, should think long and hard about
his or her own professional responsibilities and the risk of being engaged in a
possible conspiracy to obstruct justice. Every lawyer at DOJ, including every
district U.S. attorney, has an obligation to refuse to carry out illegal
orders.
As
former DOJ spokesman Matthew Miller told me, “For three and a half years we
have watched as Trump has tried to run roughshod over the Justice Department.
It has gotten worse and worse since Barr became attorney general, but in the
last few months we have seen an increasing number of people willing to stand up
for what is right.” He added, “Like the actions by prosecutors in the D.C. U.S.
attorney’s office, this took a lot of courage from Berman, and I hope it
inspires others to do the same.”
Senate
Minority Leader Sen. Charles E. Schumer (D-N.Y.) put out a statement Saturday
morning that read, in part, “I am calling for the Department of
Justice Inspector General and the Office of Professional Responsibility to
immediately launch an investigation into the reasons behind the decision by the
president and the attorney general to attempt to dismiss Mr. Berman.” The House
will no doubt undertake the same; the administration will certainly stonewall.
Almost
lost in these gobsmacking events: We should not forget that newly revealed
portions of the Mueller report suggest the special
prosecutor’s team considered Trump may have lied about lack of foreknowledge of
the WikiLeaks release of Hillary Clinton emails. It is yet one more example of
potential crimes for which Trump may be prosecuted once he leaves office. And
the potential prosecutions for him and others sure are piling up.