SMR Berman quote
Can Trump fire and replace US Attorney for SDNY?
04:40 - Source: CNN
CNN  — 

Attorney General Bill Barr’s effort to push out one of the most powerful prosecutors in the country ran into headwinds Saturday, with Republicans signaling little appetite to fight to confirm a new US attorney amid Democratic accusations that the move was an effort to shield President Donald Trump’s associates from federal investigation.

Republicans on Capitol Hill were blindsided by the late Friday night effort by Barr to seek the ouster of Geoffrey Berman, whose office at the Southern District of New York was investigating Trump confidante Rudy Giuliani and other sensitive matters. After Barr had announced that Berman would be stepping down, the New York prosecutor said Friday he would not resign until there’s a Senate-confirmed replacement.

But Republicans on Capitol Hill showed little willingness to confirm a new nominee without Democratic support – meaning there’s a real possibility that the nomination of Jay Clayton to replace him could languish.

Berman said in a statement Saturday afternoon that he would exit his post, “effective immediately.”

The fast-moving developments seemed to catch by surprise Senate Judiciary Chairman Lindsey Graham, a close ally of Trump’s and Barr’s, who said Saturday he had not been told about the effort to fire Berman.

And in a significant announcement Saturday, Graham announced that he will honor tradition to let home-state senators sign off on a replacement for Berman’s post, meaning that Democrats essentially have veto power over a replacement to a position considered the most powerful US attorney job in the country.

Berman, seemingly undeterred by the controversy, showed up to work Saturday morning, telling reporters: “I’m just here to do my job.”

The latest controversy at the Justice Department came after Barr and Berman met Friday in New York, when Barr offered Berman a job at the main Justice Department, something the Manhattan-based prosecutor declined. According to a person familiar with their conversation, Berman was left with the impression that there would be more conversations in the future about his job, and Barr never “fired” Berman during their talk.

Then late Friday night, the Justice Department sent out a press release that the source said was a complete shock to Berman and implied Berman agreed to leave, prompting the US attorney to issue his extraordinary statement saying he is not resigning.

“I will step down when a presidentially-appointed nominee is confirmed by the Senate,” he said in the statement.

Though it isn’t clear that any one particular investigation or conflict led to Barr’s attempt to push Berman out, federal prosecutors in New York, working under Berman, have continued to pursue cases that pose significant threats to Trump and his allies. In the past month, according to two people familiar with the matter, prosecutors and FBI agents have been actively interviewing witnesses as part of their investigation concerning Giuliani and his former associates, Soviet-born businessmen Lev Parnas and Igor Fruman.

In April, during discussions about delaying the trial date for Parnas and Fruman as a result of the coronavirus pandemic, prosecutors informed the parties in the case that they expected to file additional charges in what’s known as a superseding indictment no later than the end of July, according to one of the people familiar with the matter.

In their recent witness interviews, prosecutors and agents have focused on several aspects of the probe, including the campaign-finance allegations and charges tied to a marijuana business venture in an indictment against Parnas and Fruman, these people said. They have also questioned witnesses about Fraud Guarantee, a Florida-based company that paid Giuliani $500,000. CNN has previously reported that prosecutors were weighing additional charges connected to Fraud Guarantee, although it isn’t clear that those charges would be filed against Giuliani.

Given the controversy surrounding the attempt to replace Berman, Senate sources don’t believe a nominee will be confirmed to the post before November since Democrats plan to fight any new nominee.

US attorney nominees typically follow what is known as the “blue-slip” process in the Senate, meaning that once home-state senators sign off on the nominee, then the confirmation proceedings will take place. But given the controversy around the attempted firing of Berman, it is highly unlikely that both Democratic senators from New York will sign off on Clayton’s nomination to replace Berman.

On Saturday, New York Sen. Chuck Schumer, the Democratic leader, called on Clayton to withdraw his name for consideration and for an inspector general probe into the reasoning behind Barr’s attempt to fire Berman.

“Jay Clayton has a similar choice today: He can allow himself to be used in the brazen Trump-Barr scheme to interfere in investigations by the U.S. Attorney for the District of New York, or he can stand up to this corruption, withdraw his name from consideration, and save his own reputation from overnight ruin,” Schumer said in a statement.

Graham on Saturday signaled he would let Schumer and Sen. Kirsten Gillibrand sign off on Clayton’s nomination before taking it up in his committee, something that is highly unlikely to happen.

“As to processing U.S. Attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination,” Graham said. “As chairman, I have honored that policy and will continue to do so.”

It’s unclear whether Barr and President Donald Trump gave Republicans advanced notice about this attempt to remove Berman, who is investigating Trump associates, and whose office named Trump as “individual 1” in the Michael Cohen hush-money scandal where Trump sought to silence stories about his alleged extramarital affairs.

Graham said nobody had contacted him about the matter ahead of time, and a spokesman for Senate Majority Leader Mitch McConnell declined to comment on Saturday.

The process for considering a new nomination for the job would take several weeks, if not several months to play out. The nominees have to get FBI background investigations, have to fill out a questionnaire and have to answer written committee questions for the record.

US attorney nominations typically are approved with little dissent since home-state senators have already signed off on their nominations. But this nomination almost certainly would not get backing from both parties, meaning Republicans would have to push the Clayton pick forward and defend Trump’s decision to fire Berman in the middle of an election year. There appears to be little appetite for that.

Indeed, if the GOP attempted to move Clayton’s nomination, it undoubtedly would spark a huge partisan fight and eat up floor time when the Senate has a limited number of legislative days before the August recess and before the November elections.

This story has been updated with additional reporting and context.