Barr wrote that he had hoped for Berman’s “cooperation to facilitate a smooth transition” in the office as Trump nominates the chairman of the Securities and Exchange Commission, Jay Clayton, to take over the job. Instead, the attorney general wrote, Berman had chosen “public spectacle.”
“Because you have declared you have no intention of resigning, I have asked the President to remove you as of today, and he has done so,” Barr wrote.
In a statement Saturday evening, Berman said that because Barr had respected “the normal operation of law” by appointing his deputy to lead the office, he would step aside.
“It has been the honor of a lifetime to serve as this District’s U.S. Attorney and a custodian of its proud legacy, but I could leave the District in no better hands than Audrey’s,” he said.
The extraordinary day-long fight between Barr and the nation’s most powerful U.S. attorney deepened alarm among Democrats over Barr’s management of the Justice Department, generating fresh accusations the attorney general is placing the president’s interests above those of the public.
Outside the White House on Saturday, Trump told reporters that Berman’s ouster was “all up to the attorney general” and that, despite Barr’s contention otherwise, he hadn’t become involved in the matter.
“That’s his department, not my department,” the president said. “But we have a very capable attorney general, so that’s really up to him.”
In a tweet, Senate Minority Leader Charles E. Schumer (D-N.Y.) wrote that both Trump and Barr are liars. “There’s not a single word either man says that we can trust. We must get to the bottom of this,” he said.
Offering little explanation, Barr announced in a news release late Friday night that Berman would be replaced on an acting basis by the U.S. attorney in New Jersey, and that Trump would nominate Clayton for the position. Berman issued a remarkable statement in response, insisting he had not resigned and had no intention of stepping aside until the Senate confirms his replacement.
Overnight, in an email sent to employees, a copy of which was read to The Washington Post, Berman wrote that his only concern was “protecting this office and your work.” On Saturday, Berman reported to work at his office in Manhattan.
While U.S. attorneys are typically nominated by the president and confirmed by the Senate, Berman was appointed to his job by the federal court in New York because the Trump administration had left the job without a Senate-confirmed appointee for so long. Some legal experts said they believed that, as a result, only the court could replace Berman before a nominee is confirmed.
In his letter Saturday, Barr appeared to change course from his original plan to bring in Craig Carpenito, the U.S. attorney in New Jersey, to lead the New York office — a move that legal experts had said was on especially shaky ground. The shift allows for Berman’s deputy to take over. Strauss is well respected in the office but, during a time when she was working in the private sector, made numerous campaign contributions to Democratic political candidates.
In a statement, Carpenito praised Strauss — calling her “talented and tenacious” — and said, “I look forward to continuing to do the job that I love.”
In his letter, Barr bristled at the statement from Berman late Friday in which he vowed to ensure that the office’s “important cases continue unimpeded.” Though Berman did not say so specifically, observers interpreted that to mean the investigations of those close to Trump or his interests.
“Your statement also wrongly implies that your continued tenure in the office is necessary to ensure that cases now pending in the Southern District of New York are handled appropriately. This is obviously false,” Barr wrote.
House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) said his panel would open an investigation into the episode and seek to secure Berman’s testimony.
Meanwhile, in Washington, it was far from clear that Clayton, who was confirmed to his SEC position in May 2017, could clear the Republican-controlled Senate.
In a statement, Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.), a close Trump ally whose panel oversees U.S. attorney nominations, said he had not been consulted by the move and would follow Senate tradition by essentially giving New York’s two home-state senators veto power over the nomination.
The two Democrats, Schumer and Sen. Kirsten Gillibrand, both said Saturday that Clayton shouldn’t even be considered for the job.
It remains unclear why Barr moved against Berman on Friday — just five months before the presidential election. An official familiar with the events, who said he was disturbed by Barr’s move, said he did not believe it was intended to head off any particular investigation.
Instead, three people familiar with matter said they believed Barr could have been spurred by long-standing tensions between the New York office and main Justice in Washington, moving to rein in a prosecutor perceived as too independent.
Berman’s ouster sparked deep unease among rank-and-file Justice Department employees, particularly given that Clayton has never worked in the office or served as a federal prosecutor.
“The message is incredibly clear — they just want a loyalist,” said the official, who like others spoke on the condition of anonymity to be candid.
Joon Kim, who served as the interim U.S. attorney in New York before Berman’s appointment in January 2018, said that “when actions are taken that can undermine the independence and the integrity of the office, it can only be disheartening.”
On Friday, Barr met with Berman in New York, offering him a new position as head of the Justice Department’s Civil Division, a person familiar the matter said. Berman declined. The person said the offer might have been interpreted as a request to resign but that Berman was under the impression there would be additional discussion. Then, Friday evening, the Justice Department issued the news release announcing his departure.
A spokeswoman for Barr declined to discuss Berman’s firing or offer an explanation for its timing. A Justice Department official who would speak only on the condition of anonymity described the move as an effort to accommodate Clayton’s interest in the job as he anticipates his departure from the SEC. Barr has known Clayton for years and sees the move as a “good idea,” the official said. Clayton has never served as a prosecutor.
Prosecutors in U.S. attorney’s offices around the country have complained privately for months that the Justice Department under Barr has tried to insert itself in their work, with the deputy attorney general’s office making what they consider to be far more inquiries than normal, particularly in politically charged cases.
That has been especially true for the Southern District of New York, which historically prides itself on trying to operate independently of the leadership at main Justice and is sometimes referred to in jest as the “Sovereign District of New York.”
Trump, meanwhile, had long griped to aides about the New York office, complaining that it was filled with Democrats out to get him. It was the Manhattan office that charged his former attorney Michael Cohen with campaign finance violations, noting during Cohen’s legal proceedings that he had acted at the direction of a candidate of public office — Trump.
Trump has complained, according to a person who spoke with him about it in late 2019, about the investigation of Giuliani and saw it as an attack on him.
Berman had sought to rigorously maintain the office’s autonomy, people familiar with the matter said, sometimes rankling those at the Justice Department.
That was particularly true as the office investigated a Turkish financial institution, Halkbank, that has close ties to Turkey’s president, for undermining U.S. sanctions against Iran.
In his forthcoming White House memoir, former national security adviser John Bolton writes that Trump repeatedly tried to intervene in the criminal investigation, including telling Turkish President Recep Tayyip Erdogan, who had complained about the investigation, that he would “take care of things.” He also explained “that 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.”
For months, the Justice Department leadership blocked Southern District prosecutors from bringing charges, which greatly frustrated prosecutors in the office, according to two people familiar with the matter. The department relented only after Turkey invaded northeastern Syria in October 2019 to dislodge U.S.-backed Syrian Kurdish fighters battling the Islamic State, angering Washington. Having gotten the green light, prosecutors rushed to bring charges, fearing the department would have second thoughts.
The office ultimately charged Halkbank with sanctions violations in October; a Justice Department official said Barr supported bringing that indictment.
There had been discussion around that time that Berman might be removed and replaced with Ed O’Callaghan, a former federal prosecutor in Manhattan who served as then-Deputy Attorney General Rod J. Rosenstein’s top assistant. The rumors grew so loud that Berman hired a lawyer to research the law governing his removal, a person familiar with the episode said.
But the talk of replacing Berman essentially ceased last year, after the office charged two of Giuliani’s associates with campaign finance violations, as such a development may have appeared retaliatory.
It was not clear Saturday how long Barr intends to leave Strauss on the job. She is not considered a Trump ally and has a long history with the office and many supporters among its famously independent employees and alumni. She was an assistant U.S. attorney there from 1976 to 1983 and served on the staff of the independent counsel for the Iran-contra matter, along with Berman.
“She is a complete ‘no fear or favor,’ no political influence type of prosecutor. It’s where do the facts lead me? What does the law say? That’s Audrey Strauss,” said Michael Ferrara, a former prosecutor who left the Southern District in January to join the firm of Kaplan Hecker & Fink.
The future of Clayton’s nomination is not clear either.
Graham called Clayton a “fine man and accomplished lawyer” — and said that he believes the president has the power to remove U.S. attorneys. But he said he would honor the so-called blue-slip rule for the seat, which means that if either home-state senator opposes a nominee, it does not move forward.
“As chairman, I have honored that policy and will continue to do so,” he said.
Schumer on Saturday called for Clayton to withdraw from consideration.
“Jay Clayton has a similar choice today: He can allow himself to be used in the brazen Trump-Barr scheme to interfere in investigations by the U.S. Attorney for the Southern District of New York,” he said. “Or he can stand up to this corruption, withdraw his name from consideration, and save his own reputation from overnight ruin.”
It was Gillibrand who in 2018 threatened to block Berman’s confirmation by not returning her blue slip, a move that prompted an interim appointment eventually made permanent by the judges. In a statement, she echoed Schumer’s call for Clayton to withdraw from consideration.
“I will not be complicit in helping President Trump and Attorney General Barr fire a U.S. attorney who is reportedly investigating corruption in this administration. . . .” she said. “President Trump cannot be allowed to desecrate our nominations process further.”
Shayna Jacobs in New York, and Ashley Parker, Josh Dawsey and Julie Tate in Washington contributed to this report.