Through the storytelling skills of a trial attorney, Berman describes the episode in which Barr summoned him to the Pierre Hotel in Manhattan, “a luxurious place where even standard rooms can cost a thousand dollars a night or more.” Barr tells Berman that he wants to replace him in the Southern District of New York with Jay Clayton, the head of the Securities and Exchange Commission. Barr even offered Berman a job he apparently thought would be an attractive sweetener—the head of the civilian division of the Justice Department, which represents the United States in all civil lawsuits, a big job, but far from the criminal battle. With this job, Barr told Berman, he can “attract clients and build a business book” whenever Berman leaves the Department of Justice to the private sector. Only after he was offered the job did Barr ask if Berman had any experience in civil law, revealing that the attorney general wasn’t always concerned. The interest of the department he is entrusted with his leadership.
Although Berman refused to resign, Barr issued a press release announcing that Berman would “step down,” and that until President Donald Trump could nominate Clayton, the Southern District of New York would be led by Craig Carbeneteau, the US attorney general for New Jersey. Barr’s deputy, Audrey Strauss, overrides the supposed choice to serve as United States attorney general. Berman responded with his own press release, indicating that he did not resign. His main objective, he wrote in The Contract of the Line, was to preserve the independence of the office. The next day, Barr backed down from Carbenetto and inducted Strauss into the role of acting chief of the bureau. With Strauss in his position, Berman agreed to resign. Berman concludes, “The truth is that Barr was desperate to get me out of the job I was in, and it wasn’t up to hiring a better American lawyer. The reasons were pretty clear. They were based in politics.”
Berman knew all along that he was living on downtime in the Southern District of New York, due to his many previous confrontations with the Department of Justice over what he considered improper orders from administration officials.. In one episode before Barr took over as attorney general, Berman was investigating Gregory Craig, a former White House adviser to President Barack Obama, about possible violations of the Foreign Agents Registration Act. About two months before the 2018 midterm elections, O’Callaghan called Berman and asked him to indict Craig and do so before Election Day. Berman’s office recently filed charges in separate cases against Republican congressman and former Trump attorney Michael Cohen. According to Berman, O’Callaghan engaged in a heated conversation with SDNY about the reference in Cohen’s indictment to “individual-1,” which, in context, was an unmistakable reference to Trump. Berman refused demands to remove it. Now, O’Callaghan said of Craig’s case, “It’s time for you guys to sort things out.” Berman’s office eventually refused to prosecute. The Justice Department sent the case to the DCUS attorney’s office, which filed the charges. Craig was acquitted at trial.
In another incident, Berman talks about the Justice Department’s pressure to convict former Secretary of State John Kerry for violating the Logan Act, a law that prohibits private citizens from negotiating with foreign governments. call from The Justice Department followed Trump’s tweet criticizing Kerry, who negotiated the Iran nuclear deal, which Trump later scrapped. The Southern District of New York did not find any viable legal theory for the charges. Several months later, Trump’s morning tweet on the subject was immediately followed by an afternoon call from the Department of Justice, complaining about the delay in charging the fees. When the Southern District of New York told the Department of Justice that it was refusing to prosecute, the department sent the case to the County of Maryland, which would later come to the same conclusion.
Barr’s tenure as attorney general, beginning in February 2019, made matters worse. In September of that year, Berman refused to sign the Justice Department’s legal memos in Trump’s subpoena battle with Manhattan District Attorney Cyrus Vance. Vance was investigating the role Trump and the Trump Organization played in payments to Stormy Daniels and Karen McDougall shortly before the 2016 election. The Justice Department was planning to present a statement of interest containing a bold argument that the incumbent president could not be subject to a criminal investigation, an opinion the Supreme Court would later reject. Berman insisted that his office was not “Trump’s personal attorney,” and refused to sign the statement of interest, but the Justice Department persisted. Berman wrote that he dealt directly with Rosen, the deputy attorney general, but believed it was Barr who was making the decisions. The Justice Department was satisfied only after Berman threatened to tell the court that he did not support the arguments in the statement of interests. Rosen later summoned Berman to Washington to get dressed, and told him that in the future, “expect the Southern District to follow orders and sign whatever he puts before us.” Rosen later testified at the Jan. 6 commission hearings about his confrontation with Trump when Rosen refused to allow the Department of Justice to be used to legitimize allegations of fraud in the 2020 presidential election.
Berman reserves his harshest criticism of Barr, calling him a bully and his “thug” behavior. Upon taking office, Barr attempted to “kill” the investigations in the Southern District regarding campaign finance crimes that Cohen had admitted to committing. The reference in the lawsuit documents to “Individual-1” indicated that Trump faced potential criminal exposure in this investigation. In fact, Bar discussed even refused to convict Cohen In the same way, he later dismissed the false accusations against former National Security Adviser Michael Flynn. In both cases, the defendants pleaded guilty in a public hearing.
Berman recounts Barr’s involvement in other investigations. In October 2019, SDNY indicted Liv Parnas and Igor Froman, members of “Rudi Giuliani’s Inner Circle”, for fraud and campaign finance violations. SDNY was conducting further investigations into her behavior. To Berman’s astonishment, Barr suggested that information about Ukraine – some of which could be related to Parnas and Froman – was relayed through other US lawyers’ offices. Berman called the system “utter nonsense,” and noted that it was “really an attempt by Barr to keep tabs” on the SDNY investigation into Parnas and Fruman. Berman believes that Barr wanted to keep SDNY “detached from potentially helpful leads or confessions made by Rudy” and that Barr wanted control of US lawyers to advance Trump’s personal and political agendas.
Berman also cites Barr’s interference in the SDNY investigation into Turkey’s Halkbank over possible violations of US sanctions against Iran. Trump was close to Turkish President Recep Erdogan and had a property in Turkey known as Trump Towers in Istanbul. Initially, Bar-Berman pushed for Halkbank to be granted a non-prosecution agreement, which Berman resisted. Later, Barr made a complete change. After a spat between Trump and Erdogan, Bar called Berman and asked him to charge Halkbank. As Berman put it, “It seems that Barr, who has always been eager to please his boss, has been doing what Trump is asking.”
Berman’s book provides a cautionary tale about how political forces can undermine the pursuit of justice. He worries that power has become centralized in Washington, providing an opportunity for politics to influence decisions. To protect the independence of the 94 US attorney general’s offices, he makes some suggestions for reform. For example, he recommends preventing the Justice Department leadership from approving defense attorneys’ requests to overturn indictments by US attorneys. He also suggests preventing the Department of Justice from moving shopping cases to other regions after they were denied prosecution by a US attorney. It also proposes eliminating the prior approval requirements that US attorneys’ offices must obtain from the Department of Justice for sensitive investigative steps.
Fortunately, most American lawyers know that their job is to exercise independent judgment and to refuse to take action on the basis of policy. Berman reminds us that to do the job right, you must be willing to quit.
Or, in some cases, refuse to do so.
Barbara McQuade is a professor of law at the University of Michigan Law School and a former US attorney for the Eastern District of Michigan.
Inside the prominent US attorney’s office and his battle with Trump’s Justice Department
Penguin Press. 331 p. $30
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