It turns out the office was about to indict another Trump ally: Stephen K. Bannon. And the person responsible for charging the former top Trump aide is the acting U.S. attorney whom Barr tried and failed to bypass.
Acting U.S. attorney Audrey Strauss on Thursday indicted Bannon alongside three others for an alleged fundraising scheme involving Trump’s border wall. He becomes merely the latest former top Trump aide to run into legal trouble — a list which includes the campaign chief that Bannon effectively replaced, Paul Manafort, Trump’s longtime political adviser Roger Stone and Trump’s first national security adviser Michael Flynn.
But apart from the increasingly ugly picture it paints about the people with whom Trump has surrounded himself, it reinforces unanswered questions about precisely what happened — and why — two months ago.
Barr’s explanations for the effort to remove Berman don’t make sense, to this day.
At first he claimed Berman had stepped down, but Berman disputed that. In an extraordinary statement, Berman said he intended “to ensure that this Office’s important cases continue unimpeded” — which some read to suggest he thought Barr might be trying to stifle specific cases, including that of Giuliani.
At the time, Barr had said that he planned to install a new acting head, Berman’s fellow U.S. Attorney Craig Carpenito, and that Trump would nominate a full-time replacement for confirmation, Securities and Exchange Commission head Jay Clayton. Barr and the White House would later claim that the effort was simply about finding a new job for Clayton, whom the administration liked and who wanted to move back to New York.
But there was a sizable problem with that: Barr didn’t need to immediately remove Berman to nominate Clayton. In fact, Berman could just as well have been allowed to serve through Clayton’s confirmation.
There would have been one actual and obvious benefit to Berman stepping down, though: It would have allowed Barr to bypass his deputy, Strauss, and immediately install someone else — in this case, Carpenito. But Berman’s resistance meant that he forced Trump to fire him, in which case Strauss was legally required to get the job.
In later Congressional testimony, Berman explained that this was his goal in resisting Barr’s entreaties. He said that knowing Strauss would take over rather than someone Barr selected — which Berman said would have been “unprecedented, unnecessary and unexplained” — convinced him to accept his termination.
“With that concession, and having full confidence that Audrey would continue the important work of the Office, I decided to step down and not litigate my removal,” Berman said.
On Thursday, Strauss’s “important work” led to the indictment of Bannon, the 2016 Trump campaign chief executive and former chief White House strategist.
There is still no firm evidence that the removal of Berman and the effort to install someone besides Strauss was explicitly tied to an effort to curtail investigations Barr didn’t like. Barr denied this in Congressional testimony in July, saying it was “nonsense.” He added that “anyone familiar with the Department of Justice would say that removing a component head is not going to have any effect on any pending investigation.”
But building a case like the one indicting Bannon takes many months, meaning it likely would have been ongoing two months ago. That would mean that the Southern District of New York appears to have been investigating not one but at least two Trump allies when Barr so hastily launched his gambit.
(According to Berman’s testimony, they spoke about the matter twice on June 19 and were set to follow up in the coming days. But then Barr, that night, falsely announced Berman had stepped down, and Trump fired Berman the very next day — a sequence of events that lasted only about 24 hours.)
SDNY was also the office responsible for former Trump lawyer Michael Cohen’s guilty plea, in which Cohen and the office implicated Trump in the illegal hush-money payments made to women who accused Trump of affairs.
Even Giuliani himself has suggested Berman’s removal might have been tied to pursuing what Giuliani deemed to be baseless investigations.
The speed of the removal and Barr’s continually illogical and incomplete explanations for it mean we still don’t seem to have the real explanation for why it went down. When the very same office indicts such a high-profile former Trump aide so soon after these strange scenes went down, it would sure seem to warrant further explanation. Unfortunately, Democrats weren’t able to get Barr to shed much light in his testimony.