Late in the evening on Friday, June 19, United States Attorney General Bill Barr announced that the U.S. Attorney for the Southern District of New York, Geoffrey Berman, would be stepping down, prompting an unusual public standoff that lasted over 24 hours and would eventually conclude with Berman officially being fired Saturday.
This past Monday, the New York State Bar Association’s (NYSBA) Women in Law Section held a virtual panel entitled, The Unusual Firing of US Attorney Geoffrey Berman: The Process and Is Justice at Stake?, where two former federal prosecutors, Paul Butler and Jessica A. Roth, discussed the legal basis for firing a US Attorney and the impact his departure could have on the independence of Southern District prosecutors.
According to Roth, a former federal prosecutor in the Southern District and professor of law at Cardozo Law School, the Berman firing was extremely unusual.
“The timing of Berman’s firing, late on Friday night, the fact that the Attorney General incorrectly stated in the initial letter that Berman was resigning and that an interim replacement from outside the office was named,” Roth said.
To further complicate things, after Barr’s initial announcement, Berman issued his own statement denying that he had resigned and saying he had no intention of doing so. Berman went on to say that the office’s important cases would continue unimpeded.
Butler, a former federal prosecutor with the U.S. Department of Justice and professor at Georgetown Law, agreed with Roth that the ordeal was unusual but noted that it is legal for the President to fire whomever he pleases.
“It’s quite easy for a President to justify any firing and install someone of his choosing, temporarily,” Butler said. “The one flaw of our system of law is that it doesn’t contemplate bad actors and someone that is acting in their own interests.”
Berman was appointed on an interim basis in January 2018 by then-Attorney General Jeff Sessions. That entitled him to serve for 120 days but in April of that year, the judges of the Southern District unanimously appointed Berman for an indeterminate term that would last until the vacancy was filled by a presidential nominee who was approved by the Senate.
The process by which Berman was named US Attorney was unique and led to some legal questions about who had the authority to fire him. Ultimately, Berman accepted his fate after an apparent concession on who would be his successor.
“There is no formal legal precedent,” Butler said. “There is a practice precedent but this whole ordeal has broader implications about the President using his power to hire and fire to reflect his own interests.”
During his tenure, the actions taken by SDNY prosecutors, according to news reports, have drawn the ire of President Trump. It was the SDNY that investigated Trump’s then-personal lawyer Michael Cohen’s role in arranging hush-money payments to women who were alleged to have had affairs with Trump, ultimately securing a guilty plea from Cohen. The office has also charged two associates of Rudy Giuliani with campaign finance violations and it is also investigating Giuliani.
For the time being, Berman’s first deputy, Audrey Strauss, will succeed him, keeping with longstanding tradition within the SDNY.
“It’s understood she will serve out the remainder of Berman’s term,” Roth said. “With an election coming, that is the natural point for someone new to take the role. However, there isn’t a lot of law developed around these issues.”