Essentially, here’s what happened over the course of 24 hours between Friday night and Saturday evening:
- Barr said in a blatant Friday night news dump that Berman was stepping down and that Barr would install both a new acting U.S. attorney and nominate a new full-time one to be confirmed by the Senate. This was problematic because Berman is the man who has investigated Trump allies — including currently Rudolph W. Giuliani — and has named Trump as something amounting to an unindicted co-conspirator in the Michael Cohen campaign finance case.
- But then Berman issued a highly unusual statement saying he had not actually resigned. In the statement, Berman conspicuously noted that he would continue to pursue his current investigations — perhaps suggesting Barr was seeking to undermine those probes.
- Given it’s not at all clear Barr actually had the authority to remove Berman, Barr on Saturday afternoon sent him a letter saying that the man who did — Trump — had now fired him.
- Trump soon seemed to dispute this, saying Saturday afternoon that he was “not involved” and that it was Barr’s call.
- Despite the apparent confusion, Berman said he was stepping aside.
On the surface, Barr seems to have gotten what he desired: Berman out. But the outcome was hardly what Barr sought. And the series of events leads to all kinds of questions about precisely what Barr was aiming for.
First, because Berman didn’t voluntarily step aside and forced Trump to fire him, Barr can’t install the people he wanted. So while Barr said Friday night that he was installing another U.S. attorney, Craig Carpenito, as the acting head of SDNY, it now automatically falls to Berman’s deputy, Audrey Strauss.
And second, it’s not at all clear when Barr will be able to eventually replace Strauss. He had announced Friday night that the full-time replacement would be Jay Clayton, the head of the Securities and Exchange Commission. But Clayton drew apprehension even from Republicans, given his dearth of experience as a prosecutor. And then Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) said in a statement Saturday that he would abide by the tradition of allowing home-state senators to veto a U.S. attorney nominee, which is something Sens. Charles E. Schumer (D-N.Y.) and Kirsten Gillibrand (D-N.Y.) quickly did with Clayton.
So instead of getting Carpenito and then Clayton, Barr has now gotten Strauss. And as The Washington Post’s Colby Itkowitz reports, Strauss wouldn’t seem an ideal replacement if the intent was to stifle investigations or shift the course of SDNY. She’s known as a tough, no-fear-or-favor prosecutor — someone who has defeated none other than Trump’s mentor, Roy Cohn, in a mob prosecution. It’s much easier to see Strauss being loyal to Berman and the investigations they had been pursuing than someone else.
But beyond the outcome, there is how all this went down. Barr has now made something that already looked problematic reek — yet again — of the politicization of the Justice Department.
His first apparent misstep was in announcing that Berman had stepped down when he hadn’t. There are basically two options here: Either Barr somehow inexplicably messed the whole thing up, or he lied about what happened in hopes that Berman would comply and step aside. If it was the former, wow, that’s incompetent. If it was the latter, wow, that was a miscalculation.
The second misstep, though, might be the biggest takeaway in all of this: what he offered Berman. Sources have told The Post and others that Barr didn’t just ask Berman to step aside, but that he actually offered him another job — the head of the Justice Department’s civil division — to entice him. That’s a massive job, which is why Barr might have thought it would work. But that also pretty much negates the possibility that Berman’s removal was because of job performance issues. (Democrats have floated having Berman testify, at which point he could shed light on any such offers under oath.)
And if Berman wasn’t pushed aside because of job performance issues, then what might this all have been about? It becomes very difficult to completely separate this from the investigations he was pursuing.
That could be because they were ones Barr simply didn’t like, or it could be that they were the ones involving Trump’s allies and interests — not to mention the fact that Berman would be the one who could ostensibly charge Trump in Cohen’s campaign finance scheme once he’s out of office, possibly as soon as in seven months if he loses reelection this fall. Regardless of whether this was spurred by Barr or Trump, this is the attorney general meddling in what has traditionally been a very independent and aggressive office — often dubbed the “Sovereign District of New York” — and doing so while implicitly acknowledging the U.S. attorney is a very capable prosecutor.
The easier play would have been having Trump fire Berman from the beginning. But Barr seemed to want to avoid that course, perhaps given how obviously problematic it would look and given that would mean he wouldn’t get to immediately pick Berman’s replacement.
So he tried a workaround. And it didn’t work — or at least, not like Barr had apparently hoped.