The attorney general undermined the rule of law by forcing out Geoffrey Berman, the United States attorney in Manhattan.
President Trump has long made clear that, for him, “rule of law” is a limited-utility slogan. By word and deed, he has demonstrated his belief that the law exists to serve him, personally and politically.
He has pressured individuals and institutions to pervert their usual independent government missions to comply with a mandate of pure self-interest to protect the president and his friends and pursue the president’s adversaries. This explains Mr. Trump’s ire at his former attorney general, Jeff Sessions, for recusing himself from the Russia investigation; recusal made the protection part of the mandate harder to accomplish.
It also explains the president’s conduct at the heart of impeachment — using the diplomatic and financial levers of government to coerce Ukraine into announcing a damaging investigation of Joe Biden, his chief political rival. The episode is what the former Russia adviser Fiona Hill disparagingly referred to in her testimony as “a domestic political errand.”
Mr. Trump’s latest domestic political errand involves the office I led for almost eight years — the United States Attorney’s Office for the Southern District of New York in Manhattan, commonly known as S.D.N.Y., a place where politics is supposed to be off limits. The United States attorney, Geoffrey Berman, was fired on Saturday in a manner and under circumstances that warrant criticism and scrutiny.
To understand the uproar over the termination in legal circles, some context helps. S.D.N.Y. is famously and proudly independent. It embraces its nickname, the “Sovereign District of New York,” as a badge of honor. Sovereign, in the understanding of those who have served there, does not mean rogue. It signifies respect for law and scorn for political considerations. Republicans and Democrats are equally in the cross hairs.
The career lawyers are hired without knowledge of their politics or ideology. Mary Jo White, the U.S. attorney who hired me to be a prosecutor, opened an investigation of Bill Clinton, the president who appointed her, after he pardoned the fugitive financier Marc Rich. Such independent action would seem beyond this president’s comprehension.
That same commitment to independence is why I did not return President Trump’s unusual phone call to me in March 2017, after which he fired me.
The importance of reputational independence isn’t codified in a rule or a statute, but it is rightly embedded in the DNA of any worthy law enforcement institution for a simple reason: That independence gives comfort to the public that decisions about life and liberty will not be influenced by politics or partisan interests, that those decisions will not depend on an individual’s identity, wealth, fame, power or closeness to a president — every judgment rendered without fear or favor, as the oath commands.
It is this independence, and the public’s faith therein, that Attorney General Bill Barr, in cahoots with President Trump, threatened with his dubious, if legal, removal of Mr. Berman.
What prompted the termination? We don’t know and neither Mr. Barr nor President Trump has publicly said. Mr. Berman is a registered Republican, donated to the Trump campaign and was personally interviewed by the president. There has been no suggestion of impropriety or incompetence.
Against that backdrop, the only sin ascribable to S.D.N.Y. under Mr. Berman’s leadership, it seems, is violation of the commandment to protect the president’s friends and pursue his rivals. The president was unhappy with how the case against his former personal lawyer, Michael Cohen, was handled. The president was displeased that his handpicked U.S. attorney, Mr. Berman, removed himself from the case, unable to protect Mr. Trump from being incriminated in open court.
Then there is the reported continuing investigation of the president’s other personal lawyer, Rudolph Giuliani, a former law partner of Mr. Berman. Perhaps that was a bridge too far.
Maybe it had something to do with Turkey. According to John Bolton’s new book, in connection with a case involving the Turkish bank Halkbank in S.D.N.Y. that the Turkish president, Recep Tayyip Erdogan, didn’t like, Mr. Trump told the Turkish leader that the “Southern District prosecutors were not his people.”
I don’t know if any of these matters, individually or in combination, provoked the firing. It may be impossible to know.
But given the president’s track record, the absence of any other articulated reason and the peculiarity of the weekend termination, neither Mr. Trump nor Mr. Barr deserves much benefit of the doubt. Nothing about the weekend termination was regular or in good faith. It smacks of an effort to get rid of someone perceived to be disloyal in favor of someone more controllable. It may be legal, but it does not clothe the attorney general, or the department he leads, in honor.
It began with Mr. Barr declaring that the chairman of the Securities and Exchange Commission, Jay Clayton, would be nominated by the president to be the next head of S.D.N.Y., a somewhat odd choice. Mr. Clayton has never been a prosecutor and never worked in S.D.N.Y. (as has every other U.S. attorney going back two generations). The timing of the announcement, during the traditional news graveyard of Friday night, was further suspect.
More important, Mr. Barr, in a pro forma note of appreciation, thanked Mr. Berman for his service and said he was “stepping down” after two and a half years in the prosecutor’s office. The second part of that statement was an apparent lie. As Mr. Berman said in his own release later the same night, “I have not resigned, and I have no intention of resigning.”
In my experience, government officials don’t lie about the intentions of others when they are acting in good faith. Perhaps the attorney general thought Mr. Berman would be too cowed to contradict a pre-emptive public announcement of resignation. He was wrong. The next day, Mr. Barr sent a letter to Mr. Berman advising him the president had fired him (though Mr. Trump added to confusion and irregularity later in the day by saying, “I was not involved.”).
Forcing out a well-performing U.S. attorney of the same party, without explanation, on the eve of election, in favor of a less qualified candidate who golfs with the president (as Mr. Clayton does), in the midst of investigations known to be irksome to the president, does not reflect a commitment to law enforcement independence.
Within the Department of Justice, hardworking public servants — in the Southern District of New York and elsewhere — are angry, dismayed and demoralized. I’ve spoken to many of them this weekend. They are disheartened by the bad faith of Bill Barr and his determined efforts to undermine prosecutorial independence. On Saturday, finally assured his well-regarded and principled deputy, Audrey Strauss, would take over the reins, Mr. Berman left S.D.N.Y. with his head held high.
I believe the wrong Department of Justice official left office that day.
The President’s Shock at the Rows of Empty Seats in Tulsa
Inside the campaign, advisers believe disappointing attendance at the rally shows genuine fear of the coronavirus and the reality of President Trump’s sliding poll numbers.
Mr. Trump and Vice President Mike Pence had canceled plans at the last minute to speak at an outdoor overflow rally that was almost entirely empty, despite claims of nearly one million people registering for tickets to attend the event in Tulsa, Okla., and the president’s false boast of never having an empty seat at one of his events.
The president, who had been warned aboard Air Force One that the crowds at the arena were smaller than expected, was stunned, and he yelled at aides backstage while looking at the endless rows of empty blue seats in the upper bowl of the stadium, according to four people familiar with what took place. Brad Parscale, the campaign manager who had put the event together, was not present.
Mr. Pence spoke just after 6:30 p.m. in Tulsa and then left, the cue for Mr. Trump to come on. But there was a delay. Mr. Trump’s deputy chief of staff, Dan Scavino, peeked out from behind black curtains to scan the fan-free seats in the top rows.
Mr. Trump eventually entered the arena for a meandering performance in which he excoriated the “fake news” for reporting on health concerns before his event, used racist language to describe the coronavirus as the “Kung Flu” and spent more than 15 minutes explaining away an unflattering video clip of him gingerly descending a ramp after his commencement speech at West Point.
By the end of the rally, Mr. Trump’s mood had improved, advisers said. But after he left the stage, the fight seemed to have left him, at least temporarily. Leaving the arena, he wasn’t yelling. Instead, he was mostly muted.
When he landed back at the White House and walked off Marine One, his tie hung untied around his neck. He waved to reporters, with a defeated expression on his face, holding a crumpled red campaign hat in one hand.
Exactly what went wrong was still being dissected on Sunday. But a broad group of advisers and associates acknowledged to one another that Mr. Trump had not been able to will public opinion away from fears about the spread of the coronavirus in an indoor space. And they conceded that myriad polls showing Mr. Trump’s eroded standing were not fake, and that he might be on course to lose to former Vice President Joseph R. Biden Jr., the presumptive Democratic nominee, in November.
Jared Kushner, the president’s senior adviser and son-in-law who serves as the de facto campaign manager, and who was involved in the decision to choose Tulsa as the host city, was not among the group of advisers with the president at the event. But he will be among those to whom the president turns to figure out what rallies look like going forward.
In a statement, Mr. Parscale, the campaign manager who many advisers singled out for the overhyped numbers, claimed the reports about TikTok users and Korean pop music fans foiling attendance at the rally were inaccurate, and even raised the possibility of not allowing the news media to attend events in the future.
“Leftists and online trolls doing a victory lap, thinking they somehow impacted rally attendance, don’t know what they’re talking about or how our rallies work,” Mr. Parscale said. “Registering for a rally means you’ve RSVP’d with a cellphone number and we constantly weed out bogus numbers, as we did with tens of thousands at the Tulsa rally, in calculating our possible attendee pool.”
Instead, he blamed the news media for the low turnout.
“The fact is that a week’s worth of the fake news media warning people away from the rally because of Covid and protesters, coupled with recent images of American cities on fire, had a real impact on people bringing their families and children to the rally,” he said.
Campaign officials on Sunday privately admitted that many people who had signed up to attend the event were not supporters but online tricksters. One campaign adviser claimed that “troll data” was still useful, claiming it would help the campaign avoid the same pitfall in the future.
The adviser said that the data could be put into the system to “tighten up the formula used to determine projected attendance for rallies.”
In an interview, Mr. Parscale said the empty arena was not his fault, and that local law enforcement in Tulsa had overreacted, making it difficult for supporters to gain entry. He claimed to have thousands of emails from supporters who tried to get into the Bank of Oklahoma Center and were turned away, but he did not share those messages or names of supporters.
And he shrugged off the rumors about his demise, claiming he had been fired 85 weeks in a row.
But unlike most situations in which Mr. Trump’s advisers have tried to keep certain information from him — such as the fact that Mr. Biden outraised him in the month of May — or put a rosy sheen on it, the president saw for himself the empty seats in Oklahoma.
Several White House officials called the rally a disaster, and an unforced error that heightened tensions among some of the president’s government advisers and his campaign aides. What’s more, Mr. Trump’s White House advisers had repeatedly cautioned campaign aides against announcing an added appearance at an outdoor space, advice that was ignored as Mr. Parscale and campaign surrogates talked about it publicly.
The event does not portend additional large Trump rallies this summer, people familiar with the discussions said. The campaign had hoped to use the Tulsa event as a reset after the president’s slide in the polls in the wake of his administration’s failures responding to the coronavirus, and after his stoking of racial tensions amid nationwide protests over police brutality prompted by the killing of George Floyd in police custody in Minneapolis.
For days before the rally, Mr. Trump was giddy about his first arena outing since March 2, telling one interviewer after another how big it would be based on the numbers that Mr. Parscale had cited publicly.
Mr. Parscale and others believed the event would demonstrate a real pent-up demand for Mr. Trump’s appearances — one the campaign has insisted exists. But some advisers privately questioned the data even before the event, and they feared the Tulsa rally was setting the team up for failure.
Now, some White House officials said the campaign was being dishonest about what had gone wrong, and they conceded that many of the president’s older supporters had decided attending the rally was too risky amid coronavirus fears that Mr. Trump has repeatedly played down.
Veteran campaign hands in both major political parties were highly skeptical of the Trump operation’s claims that one million people had signed up even before the rally.
Outside advisers to the president said his team was fielding calls from nervous donors and Republican lawmakers, who were asking whether the poorly attended rally indicated problems that were too big to fix with just over four months until Election Day.
It also was not clear if there would be a personnel switch because of the disastrous optics, but some officials recalled what happened in 2017, after an event in Arizona that did not go as Mr. Trump had hoped. George Gigicos, one of the original campaign hands and his rally organizer, was fired by the president.
Coronavirus Has Taught Us More About Trump Than We Wanted to Know
Meanwhile, Andrew Cuomo has emerged as the anti-Trump.
Bret: Those of us in lockdown nation definitely could use an empathizer-in-chief. I just went back and looked at the clip of Biden’s interview on CNN, when he spoke about his own extensive experience of tragedy and grief. It was moving and real, the candidate at his best.
Gail: This is not the moment to have a leader whose most stirring emotional experience was firing people on reality TV.
Bret: But here’s my fear: the Biden campaign reminds me a bit of John McCain’s 2008 campaign — minus the Sarah Palin part, of course. McCain started off as the presumptive front-runner, then nearly ran out of gas before making a miraculous primary comeback. But then his campaign sorta just flatlined. In the meantime, he ran as the candidate of character and personal biography, not energy, ideas, and hope. And he got crushed as the country went through the crucible of the 2008 financial crisis.
Gail: I was covering McCain when he crashed and burned. Once the national focus switched over to the economic crisis, he was just sort of lost. He and Barack Obama were at a big bipartisan meeting on what to do next, and McCain didn’t seem to have a clue.
Biden’s not like that. He isn’t a personality-personal-history candidate; he’s a former-vice-president-who-knows-how-the-system-works candidate.
Bret: If Biden is going to make himself more relevant to the moment, I think he needs to do more than emphasize his command of bureaucracy or his experience of personal tragedy. He’s going to need to reintroduce voters to the “Scranton Joe” side of his biography. One reason I suspect Trump is benefiting politically from the pandemic is that he’s been talking about minimizing the economic fallout and getting the country back to work. That might be irresponsible from a medical and epidemiological point of view. But it resonates with millions of Americans, especially small business owners and their employees faced with complete financial ruin if the shutdowns carry on for months. Biden needs to compete for those voters, particularly those in must-win states like Pennsylvania and Michigan.
Gail: How are you feeling about the shutdowns? As it stands now, it’s easy to imagine them going on for months.
Even if New York does hit its peak in April, as the experts are now predicting, it’ll be summer before we’re really back to normalcy. And even then the virus will probably be wreaking havoc in other parts of the country where the contagion started later.
Bret: I’m not averse to the kinds of shutdowns that have been imposed so far, especially in dense urban areas where the risk of mass contagion is so high. I’m not averse to extending them by another three weeks, either, as Trump did over the weekend. We’ve got an urgent health crisis and critical shortages of essential medical equipment, particularly ventilators, so buying some time makes sense.
On the other hand, the idea of a much longer nationwide shutdown strikes me as no less dangerous, potentially more so. The economic damage would be monumental, beyond anything in the power of the government to fix. It runs the risk of creating a secondary health crisis in terms of depression, isolation, suicide, addiction and so on. And even then the virus is going to continue to run its course until we’ve found a vaccine or at least more effective medication.
Gail: You know I’m going to ask you what the alternative is.
Bret: I’m intrigued by countries like Holland and Sweden, which are pursuing a mitigation strategy instead of a suppression strategy. Obviously the jury is still out on what sort of outcomes they’ll have, and perhaps they’ll be terrible. But given that this is a pandemic whose consequences are going to be so far-reaching, I think there ought to be room for a certain amount of variety and intelligent experimentation in terms of response.
Then again, I’m not often in the habit of advocating the Swedish model!
Gail: Having lived through decades of fruitless arguments about why we should emulate Sweden, I’m just going to shrug and cede the point. But go on.
Bret: Can we encourage habits of social distancing without enforcing total lockdowns? Can we have restaurants open but cut their seating capacity by 60 or 70 percent, so customers aren’t so close? Can we focus our efforts on protecting the most vulnerable part of the population, especially the elderly and those with pre-existing conditions, while accepting a heightened level of risk for others?
Gail: God, the idea of going out with friends to a restaurant sounds like a kind of Shangri-La. But it also scares the heck out of me. Maybe I’ve been brainwashed over the last couple of weeks, but given the incredible stress on our hospitals right now, the idea of just taking the risk to see what happens is … unnerving.
Bret: I don’t know. As my very wise mom never tires of reminding me, I don’t have a degree in medicine or public health.
Gail: Loved that column about your mother, by the way.
Bret: Thanks! She liked it too and only wishes I would agree with her more often. (As in: always.) But I was struck by a quote from John F. Kennedy that appeared in a recent Times obituary of the science writer Daniel Greenberg: “Scientists alone can establish the objectives of their research, but society, in extending support to science, must take into account its own needs.”
Gail: Nice, but I don’t think we’re letting scientists run the game. The real decisions are being made by people like — Andrew Cuomo. I’d love to hear you two argue the point out. Winner gets to run for president.