Is Bill Barr Winning?

Listen to this episode

S1: Jeremy Stall is a senior editor here at Slate, covers the Department of Justice, and he spends a lot of his time thinking about one specific corner of the justice system.

S2: The Southern District of New York, S.D., and why the most important thing to know about FDNY is that it is historically known for its independence.

S1: The FDNY is so independent that a prosecutor President Clinton appointed to this office ended up investigating him.

S2: And it’s even got a nickname, the sovereign district of New York, which comes from the fact that it is considers itself almost an independent entity from the Department of Justice, whereas every other U.S. attorney’s office does not.

S1: I think it’s fair to say that this independent streak, it hasn’t been appreciated by President Trump or the current attorney general. That became clear this past weekend, as Jeffrey Berman, who’d been the lead prosecutor at the FDNY, was dismissed in a confusing two day episode.

S2: So it’s interesting with the people who were hoping and seeking to maintain the independence of this office, some of them were disappointed with Jeffrey Berman’s appointment. Jeffrey Berman did the very unusual step of interviewing personally with Donald Trump for this position when he first got this job.

S1: And that was seen as a no no.

S2: That was seen as that was a no no.

S1: This was bad form for the president and the prosecutor.

S2: That was basically an unprecedented move by the president to the fact that he tried to very early on speak to this guy and interview this guy and and make sure he was part of the team. Possibly that was very unusual.

S1: It’s funny because Jeffrey Berman replaced Preet Bharara, who had led the office and famously left in this kind of suspicious cloud. A lot of confusion back and forth about whether he was fired or resigned. And now, a couple of years later, the very same thing seems to have happened with Berman.

S2: Yeah. What happened here with Jeffrey Berman? I see the parallel that you’re talking about, Mary, in that this was a surprise. It was an abrupt it happened, you know, June. Friday afternoon kind of caught everyone off guard.

S1: But Jeremy also sees something else. How many years since Preet Bharara left office? The rules and norms about how this department operates have gotten twisted. How the sudden firing of one U.S. attorney could be an anomaly. But now, years later, seems to fit into a larger pattern.

S2: So with Preet, it felt like, OK, well, they can they can excuse themselves for this because it’s not completely abnormal to replace these positions at the start of an administration. In this case, you know, we know that that office has been investigating Trump’s hired personal attorney, Rudy Giuliani.

S1: I mean, it sounds like what you’re saying is when Preet Bharara was fired, there was smoke. Yes. But now with Jeffrey Berman, there’s fire.

S3: Yes.

S4: That is also true because of just a pattern of how this Department of Justice of Justice has operated under this attorney general in terms of going out of its way at every turn to seek to protect the president’s interests. Rule of law be damned and normal, normal practice be damned.

S5: Today on the show, what this pattern reporters like Jeremy have noticed might mean about Attorney General Bar and the cases he’s charged with prosecuting, including cases against his own boss, President Trump. I’m Mary Harris. You’re listening to what next? Stick with us.

S1: Well, let’s do a tick tock of exactly what happened this weekend, because I think if you’re a casual observer, it seemed really, really confusing. And the confusion started on Friday when Bill Barr announced that Jeffrey Berman was resigning.

S2: Yeah. He said, you know, that Wimar Attorney General William Barr said on Friday evening, again in this highly unusual announcement. Jeffrey Berman would be stepping down and that he would be replaced in this highly unusual way outside of the normal appointment procedures. And then very quickly, the Southern District U.S. attorney, Herman, put out this statement saying, I’m I’m not resigning.

S1: This is really uncommon. Right.

S2: I’m trying to think of a parallel situation where a U.S. attorney explicitly rebuked the sitting attorney general as he was maneuvering to remove the U.S. attorney from office. And I honestly can’t I can’t think of a similar I mean, the closest parallel I can think of is, you know, the Saturday Night Massacre that Richard Nixon initiated when he tried to have the special prosecutor who is investigating Watergate fired and just got rid of attorney general after attorney general replacement after attorney general replaced until he got the person who would do his bidding outside of that analogy. It’s really hard to think of something similar, even though these two things are obviously quite, quite distinct.

S1: So then on Saturday, we have William Barr saying the president is now saying that Jeffrey Berman is fired. And then you have the president saying, I’m not involved in the attorney general.

S6: Attorney General Barr is working on that. That’s his department, not my department. But we have a very capable attorney general. So that’s really up to him.

S1: I’m not involved, which all seems strange on their end.

S2: Yeah, well, let’s look contested is that, you know, the president does have the ability as the head of the executive branch, if he wants to fire the U.S. attorney. He he can do it. And by Sunday, apparently, they had kind of straightened out their stories and Trump was saying, well, it was a procedural thing. In an interview with Fox News. The president told Fox News that it was a procedural thing that the attorney general had asked him to do in terms of stepping into to fire Berman. But either way, ultimately, it was within the president’s authority to do that. And more importantly, what the attorney general said, the attorney general said, OK, we’ll follow the normal successor procedure. And Audrey’s Strouse, who is Jeffrey Berman’s deputy, will take over that office until a permanent successor is approved by the Senate and confirmed by the Senate. And what that did was that allowed Jeffrey Berman to step off of this position, that he was going to, you know, try to squat in this office indefinitely and say, you know what? As long as as long as this person is in charge of this office, I feel very comfortable leaving it to her. And I will go. And that’s what happened.

S1: Yeah. It seemed all along that what was important to Jeffrey Berman was ensuring this chain of command, ensuring someone he trusted took over the office. Do we have any idea why that was the hill he wanted to die on?

S2: All we know are these tea leaves and little clues that he left in his first in his Friday note saying that he would not be leaving. And the major one is that he said that he was going to stay on to ensure that ongoing investigations would be protected and be free of essentially free of political interference. So the implication, I guess, then, was that he did not trust others, an outsider, to come in and do that on cases that he and the office were currently working on and that Audrey Strauss now will be in charge of which who he then does trust in some ways.

S1: Jeffrey Berman had this protection. He was appointed in a funny way by judges and really only the president could fire him. Does Audrey Strauss have any of those protections?

S2: She does not. She could be fired by William Barr, which would allow Barr to once again do the president’s dirty work if if it comes to that. And if there comes a situation where her being in that office is an inconvenience to anyone.

S7: Part of the reason this Jeffrey Berman versus William Barr move raised so many flags is because the FDNY has been a driving force behind many independent investigations of the Trump administration, investigations into the president’s lawyer, Rudy Giuliani, investigations into Trump donors who were ensnared in the president’s impeachment. The FDNY even prosecuted Michael Cohen, a man who was once known as the president’s fixer.

S1: So there is some writing in The Atlantic that basically said there are three possibilities here for what happened. And one is just a straightforward. The president wanted to kind of give this prosecutor position as a patronage role to someone to reward someone for it. But the others quickly dismissed that. Like, it’s a weird time to do that. The other one of the other reasons was over television. This guy’s been investigating Trump, and this is sort of a punishment. What do you think about that reasoning?

S2: I think that it’s easy to see the like how appointing a golfing buddy might look like a patronage move. And in terms of the notion of retaliation, we’ve seen again and again and again how this White House and this Department of Justice treat people that they consider to have gone against them. And I’m thinking specifically of all the mass firings and removals that occurred after the impeachment saga.

S1: But a member of this administration doesn’t have to actively thwart the president to get his attention. Simply allowing an investigation into Trump to move forward unimpeded has ended careers, too. And that may be what happened here, you know, in Jeffrey Burmans case.

S2: He did this. This move of recusing himself from this very important case directly or it related to Trump’s personal interests of the Michael Cohen case, a case in which Michael Cohen has directly implicated the president in open court and said, I did these crimes at the behest of the president of Donald Trump, who is now the president of the United States. And in just recusing himself from that case and allowing it to go forward as it did, one can see how that might be considered a big enough betrayal to this president to warrant retaliation or removal.

S1: Yeah, we know this president isn’t a fan of recusals. I mean, he got rid of Jeff Sessions after he recused himself for the Mueller investigations.

S2: Yes. That, you know, the notion of the recusal as betrayal, I think, speaks to how Trump has famously described often what he wants from a Department of Justice, which is he wants a protection racket. He wants a Roy Cohn. He wants a personal attorney to be doing what he wants and operating to protect his friends and possibly even to go after his adversaries.

S1: And we should make this point, which is that who leads these offices is really important. This isn’t the first time that the attorney general, William Barr, has put or tried to put someone who’s close to him in charge of an office. This happened in Washington and that did end up having a real impact on cases involving the Trump administration. Can you just tell that story?

S2: Yeah. And it was a similar it was an interesting similar dynamic where you had in the U.S. attorney’s office in the District of Columbia, Jesse Lou, who is also considered to be, you know, a very conservative Republican who would serve as somebody who could be trusted to manage that office. But then when push came to shove and when the prosecutors in that office, the line, the line prosecutors in the office came in with the cases that Robert Mueller presented that were directly impacting on Trump’s friends and political allies, Jesse Mood was involved in those cases and she didn’t interfere with those cases. She didn’t put those cases to a stop. She didn’t protect the president in any real way. Those cases did go forward. You’re talking about cases against Roger Stone and Michael Flynn, cases against Roger Stone and Michael Flynn specifically. And then in February, where she was weirdly replaced under very unusual appointment scenario, where she was told she was getting a position that she ultimately didn’t get. And the attorney general picked Timothy Shea, this very close confidant, to directly replace her. And immediately, immediately you saw the impact with what he did with that office in terms of in that Roger Stone case and in that Michael Flynn case, working on behalf of criminal defendants, one of whom had pled guilty and wonderful, whom had been convicted in both of those cases, the attorneys who are working on them for the DOJ resigned.

S1: Right. Yep.

S2: And one of the cases there was an outright resignation for that from the Department of Justice. And I believe that that official is testifying before Congress this week, I think. But otherwise, the prosecutors on those cases just stepped down from the cases.

S1: So you can see how these decisions are putting these online attorneys in between a rock and a hard place, like making them choose whose side are you on?

S2: Yeah, and to their credit, the people who are working in the institution day to day have done what’s right, it seems, for the most part.

S4: In terms of doing their jobs and then when their jobs were thwarted, doing the the crucial and important step of showing to some extent what was happening by stepping down, they created a scenario by which people were more aware of what this attorney general was doing and how he was interfering in the levers of justice took to protect the president. But also it resulted in multiple letters from thousands of former Department of Justice officials. I think twenty five hundred at this count who outright said this person is abusing his power and he must go. This person being the attorney general by Embar, this person attorney generally Embar is abusing his power and he must go.

S1: What you’re laying out is a pattern. It seems like to me. What are the mechanisms where other branches of government in Washington could intervene at this point? I know you’ve been quite critical of the Democrats in the past for not holding William Barr to account.

S2: Well, you know, it’s hard because to give them some credit, they did try to impeach the president and they did. I didn’t go turn out as they wanted. So it’s difficult then to when the Republican majority that controls the Senate has shown no interest in holding this administration legally accountable up to the president. It’s difficult to then turn around and say, OK, we’re going to go after his is primary deputy and hope that they see the light there.

S1: Well, when was the last time that William Barr was even in Congress giving testimony, like doing the basics at the same time he has avoided testifying before Congress like the plague.

S2: And he is supposed to be doing that. He had even agreed, I believe, to do that this summer and backed out once again. And so now we’re going to have this very strange circumstance on Wednesday, this week, where the House Judiciary Committee that has jurisdiction over all of this is going to be interviewing members of ours, Department of Justice, about improper political influence and interference in that Department of Justice, Justice. And the attorney general is refusing to show up to defend himself or speak or even explain himself.

S1: So the guy that the Trump administration originally wanted to replace Berman with, he hasn’t gone away. This guy, Jay Clayton from the S.E.C., but now we talked about how, you know, getting involved with Barr and holding him accountable in Congress and the Senate probably wouldn’t happen. But the Senate does have the power to approve a nomination like that.

S2: So what do we know about how that process might go so that the way that process normally goes is that in those cases, if your home state senator, it is senator from the state of the office, which is open for the appointment, objects to that appointment historically, the chairman of the Judiciary Committee, who is now Lindsey Graham. But historically, whoever that chairman is, has given the homestate senators privileges to reject the nomination outright and to say, I do not agree with this appointment in my home. State Senator Lindsey Graham, for now, has said he will honor that. And that means essentially that Chuck Schumer and Kirsten Gillibrand have vetoes over this and that they have the opportunity to say no to this appointment. And they’ve already said that they would be exercising that. It remains to be seen whether or not the Judiciary Committee chairman, Lindsey Graham, is going to stick by that and how long he might stick by that.

S1: Yeah, I wonder if you see that as a success or whether you see it as weak sauce.

S2: It depends on what happens next with the current U.S. attorney. Audrey Strauss. And if she’s allowed to do her job.

S7: Jeremy Stahl, thank you so much for joining me. Thank you, Mary. Jeremy Stal is a senior editor at Slate. And that’s the show. What Next is produced by Mary Wilson, Jason de Leon and Daniel Hewitt. We’ve got help every week from Alicia McMurry and Allison Benedikt. I’m Mary Harris. I’ll catch you back here tomorrow.