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Firing prosecutor, Trump's rule-of-law crisis gets much worse

It's a nightmare scenario: an attorney general firing a prosecutor to shield the White House, while the president prattles on about "law and order."
Justice Department Officials Announce Charges Against HSBC
NEW YORK, NY - DECEMBER 11: A US Department of Justice seal is displayed on a podium during a news conference to announce money laundering charges against HSBC on December 11, 2012 in the Brooklyn borough of New York City.Ramin Talaie / Getty Images

During his tenure as White House national security advisor, John Bolton discovered that Donald Trump employed "obstruction of justice as a way of life." It's a quote that kept coming to mind watching the latest rule-of-law crisis unfold over the weekend.

Attorney General William Barr said Saturday that at his request, President Donald Trump had fired Geoffrey Berman, the U.S. Attorney in Manhattan. Shortly afterwards, Berman, who had defied Barr's earlier demand for his resignation, announced that he would not resist the order and would step down, leaving the high-profile prosecutor's office in the hands of his deputy, Audrey Strauss.

When books are written about the Trump administration's assault on the American system of justice, there will a robust chapter on the developments that began to unfold about 60 hours ago.

On Friday night -- a time when the White House prefers to dump embarrassing or scandalous news it hopes the public won't notice -- Bill Barr announced that Geoffrey Berman was "resigning" from his office at the Southern District of New York, one of the nation's preeminent prosecutorial offices. The attorney general's announcement wasn't true: Berman soon after made it clear that he hadn't resigned, wouldn't resign, and had every intention of continuing with his work.

It's not at all clear how the A.G. managed to screw this up. As a Washington Post analysis noted soon after, "Either Barr somehow inexplicably messed the whole thing up, or he lied about what happened in hopes that Berman would comply and step aside. If it was the former, wow, that’s incompetent. If it was the latter, wow, that was a miscalculation."

Whatever the explanation, it was a day later when Barr had a new announcement: at his urging, Donald Trump had, in fact, fired the U.S. attorney. That soon after came into question, too: the president contradicted Barr, insisting he was "not involved" in the prosecutor's ouster and that the decision was "up to the attorney general."

There was a degree of irony to Trump's denial: after years in which observers waited for him to say he's "not involved" in the machinations of the Justice Department, the president finally used the line, hours after his attorney general effectively told him not to.

In case this isn't obvious, it's worth emphasizing that Berman isn't some prosecutorial holdover from the Obama era: the ousted U.S. attorney is a longtime Republican, a Trump donor, and an official who served on Trump's presidential transition team after the 2016 elections.

It makes his ouster -- and the bizarre circumstances surrounding it -- that much more extraordinary. Why fire a federal prosecutor less than five months before Election Day 2020? What's the benign explanation for such a radical move?

What's more, the U.S. attorney's office for the Southern District of New York -- in legal circles, the SDNY is sometimes known as the "Sovereign District of New York," famous for its independence -- is not just another prosecutorial office. This is the district with prosecutors who have jurisdiction over, among other things, the Trump Organization, the Trump Foundation, the Trump Inaugural Committee, and all of Wall Street -- including financial institutions that have done business with the president.

It's also, incidentally, a prosecutorial office that's reportedly examined Rudy Giuliani for possible misdeeds. And remember Lev Parnas and Igor Fruman? They were -- you guessed it -- also indicted by SDNY prosecutors.

As the weekend's developments unfolded, more than a few observers raised unavoidable questions about whether Barr -- whose corruption of the justice system isn't seriously in doubt -- was scrambling to get rid of Berman in order to derail an investigation that may be politically damaging to the president. (A Politico report marveled, "How did the president have no one around him that explained how crazy this looks, and how destructive it is?")

This is, of course, a nightmare scenario in a democratic society -- an attorney general firing a prosecutor to shield the White House, while the president prattles on about "law and order" -- but given everything Americans have come to learn about William Barr, it's the scenario that can't be avoided given the circumstances.

The House Judiciary Committee has already committed to investigating the matter. In a statement, the panel's chairman, Rep. Jerry Nadler (D-N.Y.) said, "On Wednesday, the Committee will hear from two whistleblowers who will explain why Barr's attempt to fire Mr. Berman is part of a larger, ongoing, and wholly unacceptable pattern of conduct."

Among those Nadler is reportedly eager to hear from: Berman himself.

Postscript: For the record, Team Trump apparently wants to replace the U.S. attorney with the Securities and Exchange Commission's Jay Clayton, a former Wall Street lawyer whom the president tapped to help oversee Wall Street. Clayton lacks the relevant experience to lead the SDNY office, and given opposition from both of New York's Democratic senators, his nomination is unlikely to proceed.

Second Postscript: Berman is the second SDNY U.S. attorney fired by Trump. In March 2017, the Republican president ousted 46 federal prosecutors, including Preet Bharara, whom Trump originally told could stay at his post in New York.