President Trump’s firing of Geoffrey Berman, the U.S. attorney in charge of investigating major crimes in the influential Southern District of New York, which includes Manhattan, is another move by the Trump administration that, though likely legal and not totally unprecedented, appears to violate core democratic values.
The firing was dramatic, with Attorney General William Barr announcing late on Friday night Berman’s resignation and a replacement. Berman issued a statement roughly an hour later saying that he had not resigned and that Barr personally did not have the right to fire him due to the nature of his appointment.1 So on Saturday afternoon, Trump himself fired Berman, and Barr designated a different person to replace Berman than the one he had named on Friday. The firing was also somewhat surprising given that Berman is a longtime Republican who not only donated to Trump’s first presidential campaign but also served on his transition team.
Yet underlying all the drama is something we’ve gotten used to in the Trump era: the breaking of democratic norms and values, which are two distinct concepts. As we’ve written about before, values are fundamental principles (e.g., free speech), whereas norms are the unwritten rules we abide by (don’t cut in line) that sometimes reinforce those values (Supreme Court justices don’t endorse political candidates, thereby bolstering the independence of the judicial and executive branches) but also sometimes don’t. So let’s look at Trump’s firing of Berman in the context of some of those values.2
Equal justice under the law
Under Berman’s leadership, the Southern District was reportedly investigating Trump lawyer and ally Rudy Giuliani, including Giuliani’s dealings with Ukranian officials that were scrutinized as part of the impeachment inquiry against Trump. We don’t know the status of that investigation, whether Giuliani was likely to face criminal charges or even whether that investigation was a factor in the decision to oust Berman. There is some logic to the idea that Department of Justice prosecutors should avoid making decisions close to the election that might influence its outcome — indicting the president’s attorney is arguably such an example. In fact, Democrats in 2016 criticized then-FBI Director James Comey on these grounds, when he announced less than two weeks before Election Day that he was reviewing new evidence involving Democratic nominee Hillary Clinton’s use of a private email server while she was secretary of state.
That said, if Trump and Barr were trying to protect Giuliani (and therefore Trump), it fits a pattern of Barr’s Justice Department seeming to extend special treatment to Trump allies. In February, DOJ officials overruled career prosecutors and asked for a significantly lighter sentence for longtime Trump confidant Roger Stone, who was convicted of lying to Congress, witness tampering and obstruction of justice. All four prosecutors withdrew from the case — and one resigned — in protest of the decision. Even more unusual was the decision in May by a Barr-appointed U.S. attorney in Washington, D.C., to drop charges against Trump’s first national security adviser, Michael Flynn, even though Flynn had already pleaded guilty to lying to the FBI. Not only did a career prosecutor quit that case as well, but federal appeals judges are considering not allowing the Justice Department to drop the charges.
The democratic value at play here is equal justice under the law — a person should not get unusually lenient treatment by the Justice Department if he or she is an ally of the president’s. Arguably, previous presidents have violated this value — for example, as he was leaving office, Bill Clinton pardoned the ex-husband of a major Democratic Party donor.
Independence of law enforcement
The most alarming potential explanation of what happened to Berman is that Barr tried to fire him specifically for investigating Giuliani. A milder version may be that the Southern District, under Berman’s leadership, demonstrated that it did not care about Trump’s preferences and would investigate whichever crimes it deemed important, no matter the potential ramifications for Trump. Two years ago, the Southern District persuaded onetime Trump lawyer Michael Cohen to plead guilty to a number of crimes, including violating campaign finance law, with Cohen suggesting his illegal behavior came at Trump’s behest. (It’s worth noting that Berman recused himself from that case.)
So Barr and Trump may consider Berman insufficiently loyal to their interests and fear he would bring charges that would reflect badly on Trump or Republicans, even if Berman didn’t bring forward a case clearly linked to the president.
Indeed, the Trump administration has a long record of demoting, reassigning, firing or otherwise sidelining law enforcement officials who show independence from the White House: Comey, former FBI general counsel James Baker, former FBI Deputy Director Andrew McCabe, former Attorney General Jeff Sessions. Trump or his allies often hinted that Rod Rosenstein and Robert Mueller would be fired during their tenures as deputy attorney general and DOJ special counsel, respectively, in a manner seemingly designed to intimidate them. Trump has also recently complained about current FBI Director Christopher Wray and hinted that he could be fired.
And Barr has implied that the Justice Department will seek to bring charges against those involved with initiating the investigations of the Trump campaign’s connections to Russia — in effect, criminalizing efforts that bring scrutiny to the president.
Again, it is not unprecedented for presidents to replace law enforcement officials. Presidents in both parties traditionally replace with their own choices all the U.S. attorneys appointed by the previous administration, which often results in a wide partisan swap. As president, Clinton fired the FBI director, and most notably, in what came to be known as the “Saturday Night Massacre,” then-President Richard Nixon purged the senior leadership of the Justice Department for refusing to quash an investigation of him — he was forced to resign in part because of these moves.
The democratic value at stake here is the independence of law enforcement. That ideal, that their decisions should be divorced from politics, is hard to maintain if key law enforcement officials are constantly worried about being fired by the president, attorney general or anyone else for political reasons.
Accountability and oversight
It’s worth thinking about the initial bid to fire Berman on Friday night, because that is in part what made this move so problematic at first glance. It appeared to be an attempt by Barr and Trump to install at the top of an important law enforcement agency (the Southern District of New York) someone more likely to be friendly to their interests. Generally, when a political appointee like a U.S. attorney leaves, he or she is replaced by the No. 2 person in that office, usually a career civil service employee not formally aligned with either party. But on Friday Barr announced that Berman would be temporarily replaced by Craig Carpenito, a U.S. attorney for the District of New Jersey, a close ally of former New Jersey Gov. Chris Christie, another Trump loyalist.
This is a pattern for Trump: removing the leaders of various government agencies or departments, ignoring normal succession procedures and passing over the people who would normally step in, and instead replacing them with Trump allies. The temporary replacement’s role is essentially to do Trump’s bidding in a way that the removed person would not. The most prominent example of this was when, after the 2018 midterm elections, Trump replaced Sessions with his chief of staff at the time, Matt Whitaker. Often, as in the case of Berman, Trump has removed someone appointed in a process he did not totally control (usually Senate confirmation — in Berman’s case, he was installed by the judges of the Southern District) with someone chosen solely by Trump for that particular role.
Trump’s controlling the executive branch in this way — minimizing the oversight of other branches — weakens checks on his executive power. In this instance, however, Berman’s own chief deputy, Audrey Strauss, stepped into the role.
That said, that Carpenito never actually made it into Berman’s former position doesn’t mean the move wasn’t still problematic in terms of oversight. In indicting one Trump lawyer (Cohen) and investigating another (Giuliani), the Southern District under Berman’s leadership was effectively conducting oversight of the president, since Giuliani in particular was basically executing Trump’s policy goals with Ukraine (pressuring Ukraine to investigate former Vice President Joe Biden and his son Hunter Biden). Berman’s firing suggests Trump was unhappy with that oversight and wants to limit it.
Trump’s attempts to stop oversight of his policy moves is also part of a pattern. He has essentially refused to comply with any congressional investigations into his administration. And over the past few months, he has fired a number of the inspectors general at federal agencies, the people formally charged with scrutinizing the executive branch. The intelligence community inspector general played a key role in bringing forward the whistleblower’s complaints about the Trump administration’s dealings with Ukraine, leading to the president’s impeachment. Trump seems to now view all inspectors general as threats to his administration.
The democratic value at play here is oversight of the executive branch. The Senate’s role in confirming executive branch appointees and the presence of inspectors general are ways in which a president in theory is not able to do whatever he wants with the executive branch. Trump seems unwilling to abide by these constraints. Having his personal lawyer conduct foreign policy puts that person out of the purview of the Senate or inspectors general. Firing the U.S. attorney whose office was investigating the president’s lawyer signals that the president’s lawyer and the sphere of policy he is implementing is off limits.
Media and public scrutiny
The Berman firing, like the removals of several inspectors general, was done on a Friday night. This is not the most important of these violations of democratic values. Previous presidents — and plenty of other people outside of politics, for that matter — “dump” bad news on Friday nights, hoping it will get less media coverage as journalists take off for the weekend.
That said, these firings are important for the reasons I have laid out above. Trump’s seeming desire to obscure them suggests he wants to avoid careful examination of decisions that he no doubt is aware will be controversial.
Media and public scrutiny of presidential decisions is a core democratic value as well, even if other presidents have also neglected to maintain it.
And, again, this is a pattern for Trump. In the past few weeks, he and his aides have sought to get CNN to retract — and apologize for — a poll showing Trump trailing Biden and to block the publication of former National Security Adviser John Bolton’s book, which is critical of Trump. Presidents often complain about polls and dislike books critical of them but Trump’s actions go beyond those more traditional objections.
We recently wrote about how the administration’s decision to use chemical agents and rubber bullets on protesters outside the White House violated several democratic values. Key officials involved in that incident now seem to regret it. The firing of Berman may also backfire on Trump. It could embolden more people, including some Republicans, to start criticizing the president for politicizing law enforcement decisions.
Berman’s decision to resist his firing and administration officials’ distancing themselves from the White House protest incident suggest something else that should worry Trump: People in his administration may be reading and believing polls showing him trailing Biden, thinking Trump is likely to lose reelection in November and becoming more unwilling to do questionable things to stay in good standing with a man who may not be president come January.
CORRECTION (June 22, 2020, 8:37 a.m.) An earlier version of this article incorrectly described the events that preceded former President Richard Nixon’s resignation. The House Judiciary Committee approved three articles of impeachment against Nixon amid the Watergate scandal, but he resigned before the full House held an impeachment vote. Nixon was not impeached by the full House of Representatives.
CORRECTION (JUNE 23, 2020, 7:05 a.m.) An earlier version of this article incorrectly stated that Rod Rosenstein had served as deputy director of the FBI under President Trump. Rosenstein was the deputy attorney general.