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.
Andrew Napolitano: Law Is Not On Trump’s Side
“Andrew Napolitano, Fox News’ judicial analyst, called President Donald Trump’s order to delay military support to Ukraine the “quid pro quo” that Republicans have been denying thus far in the House impeachment inquiry during a guest appearance on Fox & Friends Thursday morning. The former judge told the panel of hosts that he found Trump’s Ukraine dealings unlawful.”
So this is why Trump doesn’t want officials to testify
If this is a sign of what’s to come, Republicans will soon regret forcing Democrats to make impeachment proceedings public. Over 10 hours, the transcript shows, they stumbled about in search of a counter-narrative to her damning account.
Yovanovitch detailed a Hollywood-ready tale about how Giuliani and two of his now-indicted goons hijacked U.S. foreign policy as part of a clownish consortium that also included Sean Hannity and a corrupt Ukrainian prosecutor. Their mission: to oust the tough-on-corruption U.S. ambassador who threatened to frustrate Giuliani’s plans to get Ukraine to come up with compromising material on Joe Biden and the Democratic Party.
Mike Pompeo has a cameo as the feckless secretary of state who refuses to stand up for his diplomat out of fear of setting off an unstable Trump. It all culminated in a 1 a.m. call from State’s personnel director telling Yovanovitch to get on the next flight out of Kyiv. Why? “She said, ‘I don’t know, but this is about your security. You need to come home immediately.’ ”
Yovanovitch, overcome with emotion at one point in her testimony, said she later learned that the threat to her security was from none other than Trump, who, State officials feared, would attack her on Twitter if she didn’t flee Ukraine quickly.
Confronted with this Keystone Kops way of governing, Republicans didn’t really attempt to defend Trump’s actions. Instead, they pursued one conspiracy theory after another involving the Bidens, George Soros, the Clinton Foundation, Hillary Clinton, the Obama administration, deep state social-media “tracking” and mishandling classified information. They ate up a good chunk of time merely complaining that Yovanovitch’s opening statement had been made public (which under the rules was allowed).
“Ambassador,” Rep. Mark Meadows (R-N.C.) interjected, “are you aware of anyone connected to you that might have given that to The Washington Post?”
Rep. Jim Jordan (R-Ohio) interjected: “Did you talk to the State Department about the possibility of releasing your opening statement to the press?”
Rep. Lee Zeldin (R-N.Y.) jumped in: “Ambassador Yovanovitch, do you believe that it is appropriate for your opening statement to be provided to The Washington Post?”
But Trump will need more than complaints about leaks to counter the narrative that Yovanovitch — and others — have documented.
Ukrainian officials had told her to “watch [her] back” because Yuri Lutsenko, a Ukrainian prosecutor with an unsavory reputation, was “looking to hurt” her and had several meetings with Giuliani toward that end. Lutsenko “was not pleased” that she continued to push for cleaning up Lutsenko’s office, and he tried to meet with Trump’s Justice Department to spread misinformation about her — including the now-recanted falsehood that she had given him a “do-not-prosecute list.”
She testified that wary Ukrainian officials knew as early as January or February that Giuliani was seeking damaging information on the Bidens and the Democrats — perhaps in exchange for Trump’s endorsement of the then-president’s reelection.
When Yovanovitch was attacked by Giuliani and Donald Trump Jr., among others, she asked for Pompeo to make a statement supporting her, but he didn’t do it because it might be “undermined” by a presidential tweet. (Pompeo did, apparently, have a private conversation asking Hannity to cease his attack on her.) Instead of support, she got career advice: Tweet nice things about Trump.
Notably, Republicans didn’t respond to her testimony by trying to make Trump’s behavior look good; they probed for ways to make Yovanovitch look bad.
They suggested she was part of a diplomatic conspiracy to monitor Trump allies such as Laura Ingraham, Lou Dobbs and Sebastian Gorka. They probed for damaging details on the Bidens (“Were you aware of just how much money Hunter Biden was getting paid by Burisma?”) and for ways to damage her credibility (“What was the closest that you’ve worked with Vice President Biden?”). Maybe Ukraine really did try to help Hillary Clinton in 2016, they posited. Maybe Ukrainian officials were “trying to sabotage Trump.” They asked if she ever said anything that might have led somebody to “infer a negative connotation regarding” Trump.
Meadows, struggling mightily to prove some wrongdoing by Yovanovitch, found he couldn’t pronounce the names he had been given — so he spelled them out. “I’m sorry, I’m not Ukrainian,” he said.
“Neither am I,” she replied.
No, she’s what threatens Trump most: an honest American.
Impeach Trump. Then Move On.
Stop distracting from the core issue, elite negligence and national decline.
Is it possible that more than 20 Republican senators will vote to convict Donald Trump of articles of impeachment? When you hang around Washington you get the sense that it could happen.
The evidence against Trump is overwhelming. This Ukraine quid pro quo wasn’t just a single reckless phone call. It was a multiprong several-month campaign to use the levers of American power to destroy a political rival.
Republican legislators are being bludgeoned with this truth in testimony after testimony. They know in their hearts that Trump is guilty of impeachable offenses. It’s evident in the way they stare glumly at their desks during hearings; the way they flee reporters seeking comment; the way they slag the White House off the record. It’ll be hard for them to vote to acquit if they can’t even come up with a non-ludicrous rationale.
And yet when you get outside Washington it’s hard to imagine more than one or two G.O.P. senators voting to convict.
In the first place, Democrats have not won widespread public support. Nancy Pelosi always said impeachment works only if there’s a bipartisan groundswell, and so far there is not. Trump’s job approval numbers have been largely unaffected by the impeachment inquiry. Support for impeachment breaks down on conventional pro-Trump/anti-Trump lines. Roughly 90 percent of Republican voters oppose it. Republican senators will never vote to convict in the face of that.
Second, Democrats have not won over the most important voters — moderates in swing states. A New York Times/Siena College survey of voters in Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin found that just 43 percent want to impeach and remove Trump from office, while 53 percent do not. Pushing impeachment makes Democrats vulnerable in precisely the states they cannot afford to lose in 2020.
Third, there is little prospect these numbers will turn around, even after a series of high-profile hearings.
I’ve been traveling pretty constantly since this impeachment thing got going. I’ve been to a bunch of blue states and a bunch of red states (including Kansas, Missouri, North Carolina, Tennessee, Texas and Utah). In coastal blue states, impeachment comes up in conversation all the time. In red states, it never comes up; ask people in red states if they’ve been talking about it with their friends, they shrug and reply no, not really.
Prof. Paul Sracic of Youngstown State University in Ohio told Ken Stern from Vanity Fair that when he asked his class of 80 students if they’d heard any conversation about impeachment, only two said they had. When he asked if impeachment interested them, all 80 said it did not.
That’s exactly what I’ve found, too. For most, impeachment is not a priority. It’s a dull background noise — people in Washington and the national media doing the nonsense they always do. A pollster can ask Americans if they support impeachment, and some yes or no answer will be given, but the fundamental reality is that many Americans are indifferent.
Fourth, it’s a lot harder to do impeachment in an age of cynicism, exhaustion and distrust. During Watergate, voters trusted federal institutions and granted the impeachment process a measure of legitimacy. Today’s voters do not share that trust and will not regard an intra-Washington process as legitimate.
Many Americans don’t care about impeachment because they take it as a given that this is the kind of corruption that politicians of all stripes have been doing all along. Many don’t care because it looks like the same partisan warfare that’s been going on forever, just with a different name.
Fifth, it’s harder to do impeachment when politics is seen as an existential war for the future of the country. Many Republicans know Trump is guilty, but they can’t afford to hand power to Nancy Pelosi, Elizabeth Warren or Bernie Sanders.
Progressives, let me ask you a question: If Trump-style Republicans were trying to impeach a President Biden, Warren or Sanders, and there was evidence of guilt, would you vote to convict? Answer honestly.
I get that Democrats feel they have to proceed with impeachment to protect the Constitution and the rule of law. But there is little chance they will come close to ousting the president. So I hope they set a Thanksgiving deadline. Play the impeachment card through November, have the House vote and then move on to other things. The Senate can quickly dispose of the matter and Democratic candidates can make their best pitches for denying Trump re-election.
Elizabeth Bruenig of The Washington Post put her finger on something important in a recent essay on Trump’s evangelical voters: the assumption of decline. Many Trump voters take it as a matter of course that for the rest of their lives things are going to get worse for them — economically, spiritually, politically and culturally. They are not the only voters who think this way. Many young voters in their OK Boomer T-shirts feel exactly the same, except about climate change, employment prospects and debt.
This sense of elite negligence in the face of national decline is the core issue right now. Impeachment is a distraction from that. As quickly as possible, it’s time to move on.