Attorney Scott Pilutik wrestles with the news of the day, from a lawyerly perspective…
[Regarding this story: ‘I have not resigned’: Manhattan U.S. Attorney Geoffrey Berman fires back at Barr, who says he’s leaving]
High drama. Barr hoped to bury this on a Friday night by announcing Geoffrey Berman’s departure by press release without bothering to check with Berman, who now says he’s not leaving until his replacement is confirmed by the Senate.
Berman is the only DOJ figure remaining with the weight to investigate Trump friends and family, one of them being Rudy Giuliani, and that’s why Barr wants him gone. With November approaching the Berman-led SDNY represents a persistent threat to drop shoes.
For Barr this isn’t about Berman personally, it’s about the investigations Berman is overseeing, else Barr could have announced that Berman was being replaced by someone already in the SDNY. Barr’s press release didn’t cite any reason for Berman’s “departure.”
The problem for Barr is that it appears to be the case that he can’t fire Berman, only Trump can, because Berman was a judicial appointment. Which is maybe why Berman is standing his ground.
From 2018: With No Nomination From Trump, Judges Choose U.S. Attorney for Manhattan]
Barr’s intent here is the same as with Flynn — take the bullet for Trump so Trump doesn’t have to pardon Flynn… and doesn’t have to replace Berman whose office is investigating him.
I’m leaning toward speculating that this is about a particular threat to Trump within the SDNY as opposed to the generalized threat the SDNY has always posed to Trump, else perhaps Berman would be more willing to step aside. Barr would have been better off leaving Berman alone if there wasn’t a particular threat coming into view. He even tried to promote Berman into a political office to get him out of there.
Jay Clayton’s history defending Deutsche Bank would make him, in one sense, the ideal person to come in and kill any Deutsche Bank-related threat (and a threat from Deutsche is very plausible), except that Clayton would, in many scenarios, need to recuse himself with respect to any Deutsche-related prosecution.
So Giuliani seems the most obvious SDNY target, if Barr is indeed reacting to a perceived threat.
It’s also easier to speculate about Barr and Trump’s bad faith here (besides their streak of bad faith, that is) because Barr invited skepticism by lying in a press release about Berman stepping down. In all likelihood they’ll eventually pry Berman out anyway, but concocting an obvious lie threats to drag Congress in.
