Attorney General William Barr told the top federal prosecutor in Manhattan, Geoffrey Berman, that he is fired in a letter Saturday amid a power struggle over who will fill one of the most powerful federal law enforcement positions in the nation, one which has launched multiple investigations into associates of President Donald Trump.
The Trump administration has moved to nominate Securities and Exchange Commissioner Jay Clayton to the position of U.S. attorney for the Southern District of New York. Attorney General Barr said in a press release Friday night that Berman was stepping down from the position.
Berman, however, said he had no intention to resign his post until until the nominee appointed by President Trump is confirmed by the Senate.
Attorney General Barr, in his letter Saturday, accused Berman of choosing “public spectacle over public service” by refusing to step aside and said the president has removed Berman as the top prosecutor in Manhattan upon his request. Deputy U.S. Attorney Audrey Strauss will become acting SDNY U.S. attorney, Barr said.
“Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so,” Barr tells Berman in the letter.
Berman’s office is investigating Trump’s personal lawyer Rudy Giuliani and obtained a conviction of the president’s previous personal attorney, Michael Cohen, for financial crimes.
Many legal observers were shocked on Friday night when Barr said Berman was stepping down and that the president would nominate Clayton to replace him. Clayton has not previously worked as a prosecutor.
New York Sens. Chuck Schumer and Kirsten Gillibrand, both Democrats, have called for Clayton to withdraw his name from the nomination process.
Sen. Lindsey Graham, a close ally of Trump, said he would follow precedent as Judiciary Committee chairman and will not proceed with Clayton’s nomination until the home state senators, Schumer and Gillibrand, have signed off.
However, Graham said firing Berman is within Trump’s power as president. “It is my view that any president has the ability to replace political appointees, such as U.S. Attorneys,” Graham said Saturday.
Berman was first appointed as acting U.S. Attorney for the SDNY by then-Attorney General Jeff Sessions in 2018, and was later appointed to the post by the judges in the Southern District.
Read the full letter from Attorney General William Barr to U.S. Attorney for the Southern District of New York Geoffrey Berman:
I was surprised and quite disappointed by the press statement you released last night. As we discussed, I wanted the opportunity to choose a distinguished New York lawyer, Jay Clayton, to nominate as United States Attorney and was hoping for your cooperation to facilitate a smooth transition. When the Department of Justice advised the public of the President’s intent to nominate your successor, I had understood that we were in ongoing discussions concerning the possibility of your remaining in the Department or Administration in one of the other senior positions we discussed, including Assistant Attorney General for the Civil Division and Chairman of the Securities and Exchange Commission. While we advised the public that you would leave the U.S. Attorney’s office in two weeks, I still hoped that your departure could be amicable.
Unfortunately, with your statement of last night, you have chosen public spectacle over public service. Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place. See 28 U.S.C. 541(c).
To the extent that your statement reflects a misunderstanding concerning how you may be displaced, it is well-established that a court-appointed U.S. Attorney is subject to removal by the President. See United States v. Solomon, 216 F. Supp. 835, 843 (S.D.N.Y. 1963) (recognizing that the “President may, at any time, remove the judicially appointed United States Attorney”); see also United States v. Hilario, 218 F.3d 19, 27 (1st Cir. 2000) (same). Indeed, the court’s appointment power has been upheld only because the Executive retains the authority to supervise and remove the officer.
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. I fully expect that the office will continue to handle all cases in the normal course and pursuant to the Department’s applicable standards, policies, and guidance. Going forward, if any actions or decisions are taken that office supervisors conclude are improper interference with a case, that information should be provided immediately to Michael Horowitz, the Department of Justice’s Inspector General, whom I am authorizing to review any such claim. The Inspector General’s monitoring of the situation will provide additional confidence that all cases will continue to be decided on the law and the facts.
