Trump and Barr Discard Law, Morality and Honor

Timothy L. O'Brien

Sun, Jun 21, 2020, 4:00 AM 6 min read

(Bloomberg Opinion) -- As the U.S. Attorney in Manhattan, Geoffrey Berman sat atop one of the most powerful and independent perches in federal law enforcement. His office has long held dominion over the most significant white-collar crime cases in the country. It has taken on terrorists and organized crime. And sometimes it has investigated or prosecuted people close to the president of the United States.

Berman’s team took down President Donald Trump’s personal lawyer, Michael Cohen, in 2018 on charges of tax evasion, bank fraud and campaign finance violations involving hush money payments to two women who said they had sexual encounters with the president. More recently, Berman has been investigating Rudolph Giuliani, a ubiquitous Trump lawyer and apologist, for possibly violating lobbying laws related to work he’s done in Ukraine. (That’s the same Ukraine that Trump tried to strong-arm into smearing former Vice President Joe Biden, leading to Trump’s impeachment; Berman’s office has already indicted two Giuliani associates, Lev Parnas and Igor Fruman, as part of that.)

Berman’s office has also been investigating whether Deutsche Bank AG complied with laws meant to stop money laundering. Deutsche Bank has longstanding financial ties to Trump and the family of his son-in-law, Jared Kushner. I’ve detailed Trump’s links to the bank previously, here and here. Berman has subpoenaed Trump’s inaugural committee as part of a probe into how the incoming president’s team spent more than $106 million raised for his inauguration. And John Bolton’s forthcoming book contends that Trump promised Turkey’s president, Recep Erdogan, that he would block investigations into a Turkish state-owned bank, Halkbank. You guessed it; Berman’s office is investigating Halkbank, too.

And so it came to pass that Attorney General William Barr fired Berman on Saturday afternoon, acting, he said, on Trump’s orders. Per the usual carnivalesque doings in Trumplandia, Berman was fired after refusing to resign after Barr announced, incorrectly, late Friday that Berman was “stepping down.”

To his credit, Berman stood his ground, initially saying he wasn’t going anywhere because the Senate had not appointed his successor and he had to look after his office’s investigations. To his discredit, Barr noted in the letter he wrote canning Berman that he was “surprised and disappointed” that Berman had “chosen public spectacle over public service.”

Barr has been around awhile. He surely knows that when someone like Berman learns of his dismissal from a press release distributed into the media’s equivalent of a black hole — late on a Friday night — and the release misrepresents Berman’s understanding of the facts, well, Berman might be unlikely to just play ball.Barr also surely knows that Berman’s investigations all involve sensitive matters touching Trump, and whatever legitimate reasons he might claim to have for helping Trump remove Berman, the atmospherics are beyond bad. The presidential election is less than five months away and cynics like me can be forgiven for thinking that this looks exactly like a housecleaning. Democrats in Congress think so, too, and are already scheduling hearings and calling for investigations.Trump has chosen Jay Clayton, chairman of the Securities and Exchange Commission, to replace Berman. Clayton has never served as a federal prosecutor. Before heading the SEC, he practiced corporate law in the private sector. One of his clients was Deutsche Bank. Trump and Barr may insist that Clayton’s resume and client list are irrelevant, but, of course, they matter. Clayton faces hurdles getting the job anyhow because Senator Lindsey Graham, a Republican overseeing the Senate Judiciary Committee, said he would defer to New York’s senators, both Democrats, when considering who should succeed Berman.

Although Barr told Berman that he had asked Trump to fire him, the law is somewhat murky on how much latitude the president has to fire a U.S. attorney. Barr, as is his wont, assumed the most expansive interpretation of presidential authority. The president himself went into bunker mode, however, when reporters asked him at the White House on Saturday if and why he fired Berman. “Well, that’s all up to the attorney general. Attorney General Barr is working on that,” Trump said, trying to distance himself from his administration’s latest dogfight. “That’s his department, not my department. But we have a very capable attorney general. So that’s really up to him. I’m not involved.”

There’s scant reason to trust Barr’s take on matters of the law any more. He misrepresented the conclusions of Special Counsel Robert Mueller’s investigation into ties between Trump’s team and Russians trying to sabotage the 2016 election, saying Mueller found no evidence of collusion or obstruction of justice. He’s publicly savaged federal prosecutors who had ample reason to investigate Trump and then launched a witch hunt to discredit them. He’s tried to interfere with or undermine other high-profile cases involving Trump associates or appointees such as Roger Stone and Michael Flynn. His office soft-pedaled its investigation of Trump’s maneuvers in Ukraine. He supported the use of force to clear peaceful Black Lives Matter protesters from the streets outside the White House so Trump could pursue a photo op in front of a church — and then dissembled about it.

In short, Barr has repeatedly turned his office and the Justice Department upside down to protect Trump from the consequences of his own actions. There’s little reason to believe that Berman’s firing doesn’t fit that pattern.

Barr maintains an imperial view of the presidency and, for the most part, sees presidents as existing beyond the rule of law. He also thinks the U.S. suffers from a morality vacuum. Last October, he delivered a speech at Notre Dame Law School in which he emphasized the importance of religion in society. On his way toward blurring the separation of church and state, he also claimed an assault on religion was afoot in the U.S. – which, he said, not only threatened individual freedom but the need for a “transcendent moral order.”

If Barr cares so much about morality, he could set an example by acting morally. Telling the truth and upholding the law would be a good start.

My father, Arthur O’Brien, was a lawyer in Illinois. He once told me he always felt proud whenever clients signed documents he drafted without reading them closely. They trusted him that much. And I remember him asking me over a backyard grill in the summer of 1974, just after Richard Nixon resigned, if I understood how hard it would be for Nixon’s children to go through life answering for their father’s corruption. “Never do anything in your life that would make your kids ashamed to have your last name,” he told me.

My father would have understood that Trump and Barr have no regard for basic truths about law, morality and honor, as the Berman episode shows. And he would have said that it’s time for them to answer for that and move on.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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