Last Friday saw the botched massacre of Geoffrey Berman, the U.S. attorney for the Southern District of New York. The episode was telling for those, myself included, who once had higher hopes for Barr’s second stewardship of the department.
For those who thought Barr might be an institutionalist, protecting the department from the predations of a president with little respect for it, consider: He backed installing a prosecutor in the flagship office with no — zero — prosecutorial experience.
Jay Clayton, the intended nominee, might be a fine chairman of the Securities and Exchange Commission and an excellent corporate lawyer. He has no business overseeing the Southern District. Clayton’s “management experience and expertise in financial regulation give him an ideal background . . . and he will be a worthy successor to the many historic figures who have held that post,” Barr proclaimed in his Friday night announcement. This is dangerous hackery, insulting to those who have served in that post and, more important, to the department.
For those who thought Barr would be competent, consider: He ousted Berman, a registered Republican and Trump donor, and wound up with Audrey Strauss, a registered Democrat who has contributed to Hillary Clinton, Barack Obama and Joe Biden in the job. Well played.
The underlying question is why Barr felt compelled to remove Berman — and, here, there is every reason, given past performance, to suspect foul motives. After all, the Southern District is an office that has prosecuted and investigated any number of Trump allies and the president’s own inaugural committee. After all, according to John Bolton’s new book, this is a president who said “the Southern District prosecutors were not his people, but were Obama people, a problem that would be fixed when they were replaced by his people.”
It is not business as usual to fire a U.S. attorney — or it at least hasn’t been, with the exception of President George W. Bush’s mass dismissals in 2006. When it happens, Congress — and the public — needs to understand why.
Especially under the current circumstances. Wednesday brought remarkable testimony before the House Judiciary Committee from two current Justice Department lawyers. John Elias, former chief of staff to the assistant attorney general in charge of the Antitrust Division, described how the division had launched an unwarranted investigation of the cannabis industry, at Barr’s behest, and an equally unwarranted probe, in the wake of an angry presidential tweet, of automobile manufacturers’ agreement with California to abide by Obama-era emissions standards.
And Aaron Zelinsky, a career prosecutor who resigned from the Roger Stone case after Barr oversaw the withdrawal of the government’s sentencing recommendation, testified that Stone “was treated differently because of politics” and “received breaks that are in my experience unheard of.”
It’s now past time for the lawmakers to hear from Timothy Shea, the former interim U.S. attorney for the District of Columbia, who oversaw the about-face in the Stone sentencing and the guilty plea of former national security adviser Michael Flynn.
Let’s hear from Berman and Jessie Liu, the former U.S. attorney for the District of Columbia, who, among other things, declined to bring charges against former FBI deputy director Andrew McCabe. (Liu left her post for a position at the Treasury Department, only to have that nomination summarily yanked by Trump.) Let’s hear from Makan Delrahim, the assistant attorney general in charge of the Antitrust Division.
And let’s hear, most important, from the attorney general himself. Barr had been scheduled to appear before the committee for the first time as attorney general on March 31, an appearance that was canceled because of the pandemic. Since then, the White House has decreed that no Cabinet officials are permitted to testify without approval from the White House chief of staff, asserting that “the administration must continue to maintain its highest operational status to stop the spread and to reopen our economy.”
Justice cited that guidance in asserting Barr’s unavailability until, with the threat of subpoenas in the air, spokeswoman Kerri Kupec tweeted that Barr “has accepted an invitation to appear” before the committee — but not until July 28, weeks later than the committee had requested.
Just before the congressional hearing began, a federal appeals court ordered a district court judge to dismiss the case against Flynn. Appeals court Judge Neomi Rao’s majority opinion repeatedly noted that the “presumption of regularity to which the government is entitled.” But there was nothing regular about the Flynn case, in which prosecutors moved to abandon the very guilty plea that they had secured. And there is little that can be called regular about the current operations of the Justice Department. It has long ago ceded its entitlement to the benefit of the doubt.