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Berman Testifies That Barr Fired Him — And Then Lied

A former top prosecutor testified under oath on Thursday that Attorney General William Barr lied about the events surrounding his departure from his job last month.

Barr had announced on June 19 that Geoffrey Berman would be resigning from his role as U.S. attorney for the Southern District of New York.

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Barr's Dishonest Attempt To Oust New York U.S. Attorney Backfires Badly

EDITOR'S UPDATE: On Saturday, U.S. Attorney Geoffrey Berman announced he would leave office immediately after receiving a letter from Attorney General William Barr informing him that he had been fired by President Trump -- and that in accordance with law and custom he will be replaced by his deputy Audrey Strauss a career fedderal prosecutor, rather than a successor hand-picked by Barr as the Attorney General had previously stated.

Attorney General Bill Barr apparently thought he could buffalo U.S. Attorney Geoffrey Berman out of his job, but the lead federal prosecutor in the Southern District of New York is refusing to go down without a fight.

In a surprise Friday night news dump, Barr announced — falsely — that Berman would be "stepping down" from his post. He was to be replaced by Jay Clayton, the chairman of the Securities and Exchange Commission, who many noted has not served as a prosecutor before, Barr said. Before Clayton could be confirmed by the Senate, Barr intended to have the current U.S, Attorney for the District of New Jersey Craig Carpenito serve in an acting capacity in Berman's position

."Finally, I thank Geoffrey Berman, who is stepping down after two-and-a-half years of service as United States Attorney for the Southern District of New York," Barr said in a statement. "With tenacity and savvy, Geoff has done an excellent job leading one of our nation's most significant U.S. Attorney's Offices, achieving many successes on consequential civil and criminal matters. I appreciate his service to the Department of Justice and our nation, and I wish him well in the future."

But shortly after Barr broke this startling and suspicious news, Berman came out and directly contradicted the attorney general in an aggressively confrontational statement.

Berman said he only learned of the news via Barr's press release — and that it's not true.

"I have not resigned, and have no intention of resigning, my position, to which I was appointed by the Judges of the United States District Court for the Southern District of New York," Berman said in a statement. "I will step down when a presidentially appointed nominee is confirmed by the Senate. Until then, our investigations will move forward without delay or interruption. I cherish every day that I work with the men and women of this Office to pursue justice without fear or favor — and intend to ensure that this Office's important cases continue unimpeded."

This was a dramatic shot across the bow for three reasons.

First, it's always a high-stakes situation when a subordinate directly contradicts their superior's public statements — even more so when the statement is about their own position. Berman is, in essence, calling Barr a liar. It seems Barr thought he could push Berman out by sheer bravado, but Berman is showing remarkable fortitude.

Second, Berman is setting up a power struggle for control of SDNY with potential constitutional implications. His claim is that because he was appointed by a judge to fill a vacancy at SDNY, Barr can't simply force him out; he can only be forced out when the Senate approves a presidential nominee.

It's not clear if that's the case. But law professor Steve Vladeck noted on Twitter that, under the most natural reading of the relevant law, Berman's interpretation seems plausible:


Barr almost certainly disagrees with this view, however, given his understanding of executive branch power. Law professor Marty Lederman noted that the Justice Department Office of Legal Counsel believes the president himself would have the authority to fire Berman, but not Barr:


So what happens when it's unclear who has authority over SDNY?

Third, and perhaps most importantly, Berman's repeated reference to his cases, and preserving their integrity, suggests that he believes he is being forced out in order to interfere with an ongoing investigation. We know SDNY has investigated President Donald Trump's conduct and allies in the past, including Michael Cohen and Rudy Giuliani. Giuliani's associates — who also have ties directly to Trump — Lev Parnas and Igor Fruman are currently under indictment from the office. This all raises the disturbing prospect that Barr might be trying to push Berman out because his office has uncovered damaging information pertaining to the president.

Why New York’s District Attorney Should Reopen That Fox News Investigation

For well over three decades, Robert M. Morgenthau served as the Manhattan District Attorney. A law enforcement legend, Morgenthau became renowned for his zealous pursuit of white-collar offenders.

He believed that “crime in the suites” deserved to be punished just as consistently as crime in the streets — and as a former federal prosecutor, he ignored minor issues such as jurisdiction when he thought justice needed to be done. And he sought expansive interpretations of law wherever he saw the federal government failing to do justice.

Recently I asked a ranking federal prosecutor who once worked for D.A. Morgenthau whether his old boss would have allowed Fox News Channel executives to escape accountability for the crimes of Roger Ailes and their alleged concealment of those crimes from auditors and shareholders.

The answer was a resounding “NO.”

Before New Yorkers first elected him D.A. in 1974, Morgenthau had served as the United States Attorney for the Southern District, appointed by President Kennedy. He resisted fiercely when Richard Nixon sought to remove him under dubious circumstances in 1969. So he would understand the predicament of Preet Bharara, the former U.S. Attorney abruptly fired by Trump last year, after Bharara commenced an investigation of Trump’s friend Ailes and the company’s hidden payoffs to the women he tormented.

As reviewed in this space yesterday, that investigation potentially implicated top executives at Fox, continuing for several months after Ailes died in May 2017. Among those subpoenaed to explain how Fox had paid off those women and concealed those illicit payments was former Fox vice president Bill Shine, who was eventually fired by the network — and then appointed deputy White House chief of staff by Trump last month.

Yet somehow during the period when federal prosecutors questioned Shine and his appointment by Trump, the Fox News investigation went “dormant,” according to major news outlets. During that same period, the acting U.S. Attorney who had replaced Bharara, his former deputy Joon Kim, was replaced in turn by Geoffrey Berman — a former managing partner at Greenberg Traurig, whose clients had included Ailes and News Corp, the parent company of Fox News. Berman was personally interviewed by Trump and recommended by his former law partner Rudolph Giuliani, a confidant of both Ailes and Trump.

Many troubling questions remain unanswered in this matter. When did the Southern District end the investigation of Fox News? Why did prosecutors decide to drop the case? Did Berman recuse himself from that decision? Why was Shine called to testify in that investigation? What was he asked, and what were his answers? Did the White House or the FBI conduct due diligence when Shine was appointed to one of the most powerful positions in government?

Indeed, very little in this narrative inspires confidence — and the absence of transparency only inflames suspicions of wrongdoing. But there is a potential remedy under law.

If crimes were committed in the suites at Fox, those offenses occurred in Manhattan — where Morgenthau’s successor, Cyrus Vance, Jr. now serves as District Attorney. Fairly or not, Vance’s own integrity has been questioned over his decision not to prosecute the disgraced film producer Harvey Weinstein for sexual assault. Although Vance insists he rejected prosecution of Weinstein due solely to a lack of evidence, that decision is currently under examination by the New York Attorney General.

Should he wish to affirm his integrity and fearlessness, Vance should look into the Fox News case — where a sexual predator just as monstrous as Weinstein escaped punishment for years because his employer, a publicly held company, secretly paid out tens of millions of dollars to hide his misdeeds. For reasons that remain suspiciously opaque, New York’s federal prosecutor let that case lapse. And now a key witness sits in one of the most sensitive positions in the Trump White House, which is notorious for failing to properly vet top officials.

It’s time for Vance should ask himself: “What would Morgenthau do?”

Bill Shine Backstory: Why Did The Federal Probe Of Fox News Go ‘Dormant’?

With national attention now directed toward state and federal law enforcement agencies in New York — which are reported to be investigating Donald Trump and his associates — perhaps we will learn at last what happened in another troubling investigation, involving Trump’s cronies at Fox News Channel.

Among those cronies is former Fox News vice president Bill Shine, who has since ascended to oversee White House communications as deputy chief of staff to the president. Shine served for years as the top deputy to Roger Ailes, the late Fox News chief fired over his horrific mistreatment of female employees at the network.

Back in 2016, when the indefatigable Preet Bharara still served as the United States Attorney in Manhattan, his office opened a probe of secret and illicitly concealed financial payoffs to the women Ailes had abused. To protect the Fox News chief from the consequences of his own horrific misconduct, the network had paid out as much as $100 million in settlements to those women — and concealed those massive expenditures from its own stockholders.

Lawyers for the women involved and at least one of the victims said that Shine had played a key role in suppressing revelations about Ailes’ brutal misconduct, in part by overseeing payments of hush money in exchange for non-disclosure agreements.

Precisely how those payments occurred and whether any crimes were committed in concealing them from auditors and shareholders were the central issues of Bharara’s Fox investigation. In March 2017, within weeks after he entered the Oval Office, Trump removed Bharara — a decision that aroused grave suspicions about the president’s motives. The next day, Bharara himself tweeted a disturbing hint at the reasons behind his dismissal, suggesting that he was getting too close to uncovering corruption in high places.

Nevertheless, Bharara’s deputy Joon Kim continued the Fox investigation, even after Ailes abruptly died in May 2017. Kim reportedly impanelled a grand jury in the case. And as late as the fall of 2017, federal prosecutors were bringing in former Fox employees for interviews about harassment and payoffs at the network. Among those reportedly brought in for questioning, after a subpoena was issued to him, was Shine.

By then, Trump was moving to nominate his own appointee as U.S. Attorney in the Southern District of New York, a position long considered one of the crown jewels of the Justice Department. Following a personal interview he selected Geoffrey Berman, an attorney expressly recommended by Trump adviser Rudolph Giuliani, his former partner at the mammoth and highly political law firm of Greenberg Traurig. Berman’s appointment only raised fresh questions because the Greenberg firm had represented both Fox News and Ailes.

Sometime after Berman took over as U.S. Attorney, according to reports in both the New York Times and the Washington Post, his office’s investigation of Fox News apparently went “dormant.” No indictments or reports have issued from the grand jury. Neither the U.S. Attorney nor Fox has commented on its findings.

Meanwhile, three highly significant and related events had occurred:

In May 2017, Fox News fired Shine within days of Ailes’ death in May 2017.

In November 2017, Fox News’ parent corporation agreed to settle a lawsuit brought by shareholders who alleged that gross mismanagement had created a culture of sexual harassment that caused financial and reputational damage to the company. The $90 million settlement was one of the largest ever agreed in a shareholder derivative case — and the company’s rapid legal surrender raised severe doubts about the company’s claims of innocence.

In July 2018, over the July Fourth weekend, the Trump White House announced the appointment of Shine as deputy chief of staff in charge of communications.

Considering the sensitivity of Shine’s new position — and the previous failures of top Trump aides in vetting White House appointees — it seems important to determine what questions were posed to him during the Fox investigation and how he answered them. Of course Shine could release his own testimony, even if he appeared before the grand jury, but that seems about as likely as Trump releasing his tax returns.

And it is equally important to learn whether Berman, a former managing partner in a firm that represents the network, discontinued the Fox probe or whether he properly recused himself from that decision — as he was required to do when his office took over the investigation of former Trump attorney Michael Cohen from special counsel Robert Mueller.

Tomorrow: What Manhattan District Attorney Cyrus Vance could do to restore transparency to this case.