“The prospect of a second Trump administration frightens me.”

Geoffrey Berman, who held a critical position in the Trump Justice Department as the U.S. Attorney for the Southern District of New York, was speaking with me last Friday after a week of promoting his new book, Holding the Line. It’s an ostensible tell-all about the efforts of Donald Trump and Attorney General Bill Barr to use the SDNY to benefit the president and his allies and to punish their adversaries. This was already apparent, but it is also a warning about another Trump term. “All of the dangerous and outrageous things he did and tried to do as president will be repeated if there’s a second administration, except he’ll be more successful in doing those things the second time around,” Berman told me. “While he was president, Trump knew he had to stand for reelection. If there’s a second administration, he’ll be free of that concern.”

Berman was fired in June 2020 after refusing to pretend he had quit, but his noisy exit ensured that his successor would be his well-regarded deputy, rather than the transparently unqualified but likely more pliant successor that Barr wanted to install. More than two and a half years since the Trump administration ended, there are familiar elements to Berman’s defection, which has in some ways fit the experience of other former Trump officials. The release of the book itself followed a recognizable path: The New York Times ran a prepublication story teasing all the dishiest Trump-related bits, and Berman made the rounds on television all week, practically setting up shop in MSNBC’s studios. The publicity tour got an unexpected boost in the form of an announcement from Senate Judiciary Committee chairman Richard Durbin, who said the panel would investigate the “astonishing and unacceptable deviations from the department’s mission to pursue impartial justice” that are reflected in Berman’s account.

Others were less welcoming. Andrew Weissmann, the Justice Department veteran who served in a senior role on Robert Mueller’s Trump-Russia investigation, captured the feelings of a sizable Now he tells us? contingent. “Is it too harsh,” Weissmann asked, “to simply not want to hear from the likes of” Berman and others, “who in order to gain power got in bed with Trump knowing precisely who and what he was, and only belatedly squawked after their jobs were threatened?”

The frustration and skepticism are understandable. One could easily be forgiven for finding the whole genre of books by former Trump officials turned belated antagonists highly annoying. For the most part, the revelations and criticisms have been too little, too late; were seemingly calculated to generate adulatory press coverage, cable-news contracts, and money for the authors; and at times were grossly distorted to cater to the anti-Trump crowd. But it would be too simple merely to lump Berman in with the rest of these people.

A self-described Rockefeller Republican and Establishment legal conservative, Berman volunteered for the Trump 2016 campaign and the presidential transition team, but unlike other Republicans who have been critical of Trump since his loss, he has decisively turned against the man. He writes early in his book that he “believed that Candidate Trump was an act, a smart guy playing a role” — a view he now acknowledges, with the benefit of hindsight, as “craziness.” I asked whether he had voted for Trump in 2020 and whether he would vote for him in 2024 if he ran for reelection against Joe Biden. Each time, Berman answered with a simple, declarative “no.”

Berman is also the highest-ranking former Trump Justice Department official speaking credibly and openly about the threat of another Trump term. Others have provided self-serving and factually questionable accounts of their own conduct. Many more have been happy to slink back into the morally and ethically forgiving private white-collar sector and cash big checks while staying quiet about their time in the administration, even when it is obvious that they have stories the American public deserves to hear. (Remember Rod Rosenstein?) Berman occasionally takes aim at some of these people in his book — sometimes directly, other times implicitly — making his account a welcome departure from the normal rules of elite lawyering, which tend to reward silence about the shortcomings of others in the club.

This does not mean we should receive Berman’s story uncritically. His account is incomplete and unsatisfying in some noteworthy respects, but it is the first serious effort to grapple with the rampant dysfunction of the Trump Justice Department — and the unsettling possibility that we may see it again.

Berman’s bill of particulars in Holding the Line centers on a handful of cases in which he detected politically motivated interference on Trump’s behalf, albeit to significantly varying degrees.

In May 2018, Berman’s office received a criminal referral from the Justice Department’s counterintelligence section in Washington, D.C., asking for an investigation into whether former secretary of State John Kerry had committed a crime by remaining in contact with the foreign minister of Iran. At the time, Trump was working to scrap the Iran nuclear deal that Kerry had helped to negotiate, and the referral came just days after Trump began tweeting angrily about him. Berman’s prosecutors effectively slow-walked the case, declining to take even routine investigative steps, and it was eventually transferred to the U.S. Attorney’s office in Maryland. That office eventually declined prosecution, and, Berman writes, “the Kerry investigation just quietly died — as it should have.”

Later in 2018, his office was completing the charging paperwork for Michael Cohen, who would plead guilty to a variety of offenses including a campaign-finance charge related to the hush payment made to Stormy Daniels on Trump’s behalf in the run-up to the 2016 election. The document included barely anonymized references to Trump, who was described as “Individual-1.” Berman was recused from the case given his role on the Trump campaign, but as the plea was being finalized, Ed O’Callaghan, a senior department official in Washington, called Robert Khuzami, a deputy in Berman’s office, to complain about all of the references to Trump in the draft. The document was substantially revised and shortened, but the gist was clear after Cohen pleaded guilty in court: Trump had told him to make the payment.

At least as a matter of standard prosecutorial practice, O’Callaghan’s concern was perhaps less crazy than Berman makes it out to be. As Berman noted himself in an interview last week, Cohen’s guilty plea would not by itself have decisively established a case against Trump, and the Justice Department does not necessarily implicate readily identifiable, uncharged third parties — much less the sitting president — when a defendant pleads guilty before an indictment, as Cohen did.

Berman was more direct about the reality of Trump’s legal exposure when we spoke. “If there was a case to be charged” against Trump “regarding the campaign-finance violation, the Southern District would have charged it” after Trump left office, he said.

Later in 2018, as the midterms approached, O’Callaghan called Khuzami again. This time, according to Berman, O’Callaghan told him that the office should criminally charge former Obama White House counsel Greg Craig, whom it had been investigating for potential misconduct in connection with his work for the Ukrainian government. According to Berman, O’Callaghan told Khuzami, “It’s time for you guys to even things out” — an apparent reference to the fact that the office had by then criminally charged both Cohen and Chris Collins, a sitting Republican congressman and early supporter of Trump. Berman, who heard about what happened on the call directly from Khuzami, describes O’Callaghan’s comment in his book as “stunning and disturbing.” Berman’s office eventually declined to prosecute Craig, and the case was moved to the more Trump-friendly U.S. Attorney’s office in the District of Columbia, which managed to both vindicate Berman’s judgment and humiliate itself when Craig was eventually acquitted in September 2019 on a single charge of lying to the government.

O’Callaghan’s reported remark has drawn perhaps the most attention among the revelations from Berman’s book, but he has flatly denied the account, telling the Times it is “categorically false.” When I asked Berman about this, particularly since he had heard the alleged comment secondhand along with a colleague, he told me, “I stand by all the accounts of O’Callaghan’s actions and conversations” in the book. “Rob was quite clear and explicit about his conversation with O’Callaghan, and he was as outraged by it as we were when he told us about it.” (I contacted O’Callaghan for an interview, but he did not respond.)

One refreshing feature of Berman’s account is his willingness to directly implicate some of the many shameless sycophants and unqualified lackeys who came to power in the department during the Trump years. They include not just O’Callaghan but lesser-known figures such as Brian Rabbitt and Will Levi, who also helped Barr and former attorney general Jeff Sessions run the department into the ground. All of them may very well return in a future Republican administration, which, Berman told me, would “concern” him “very much.” Some of these people — like John Bash, a former U.S. Attorney along the southern border who was a crucial participant in the family-separation debacle — have already made their first tentative steps back into respectable public life.

Over the summer, the January 6 Committee elevated several senior former officials in the Trump Justice Department to undeserved, near-heroic status in its zeal to paint Trump in the most damning light possible. Berman makes clear that he does not share the opportunistic reverence for figures like Richard Donoghue, who ascended to deputy attorney general in the final days of the administration and might have provided a highly tendentious account of his dealings with Trump for public consumption. The same goes for Jeffrey Rosen, a bumbling figure who had never even worked at the Justice Department before becoming deputy attorney general during the Trump administration and would later become the acting attorney general after Barr’s resignation in mid-December 2020. “It was and remains a mystery what qualified Rosen to occupy the second-most-powerful position at the Department of Justice,” Berman notes.

Despite the seemingly straightforward nature of Berman’s account, his book does contain some curious elisions and omissions.

The first chunk of the book is styled as an indictment of Trump and Barr, but plenty of the events in question — including the initial referral on Kerry and the attempted interventions in the Cohen and Craig cases — occurred under Sessions, Trump’s first attorney general, who initially appointed Berman to his position. In our discussion, Berman was noticeably more charitable when it came to Sessions. “The improper interference by the Trump Justice Department started while Jeff Sessions was attorney general,” he told me, “but I had no knowledge or information of his personal involvement in any of it.”

I asked Berman what he thought about the department’s morally repugnant family-separation policy, which was in effect while he was on the job in spring 2018 and was probably worse than anything discussed in Holding the Line. “We never dealt with that in the Southern District,” he nonanswered. I noted that the policy was hugely controversial — a monthslong national scandal spurred by Sessions and Trump’s well-known anti-immigrant views, which were central to the 2016 campaign Berman had volunteered on — but he held firm. “I was focusing on the battles before the Southern District,” he insisted, “and that wasn’t one of them.”

Berman has plenty to say in his book about the details of the Cohen plea, but he refused to engage when I asked about a far more consequential issue: whether his office had ever conducted anything approximating the amply warranted federal investigation into Trump’s many questionable financial dealings. “That’s outside the scope of the book, so I’ve got no comment on that,” he said.

Ironically, the second half of Berman’s book — which describes events that by themselves would likely not have generated the political and media frenzy surrounding the book’s release — is often the more revelatory and engaging of the two. Berman provides fascinating inside details concerning the office’s 2018 investigation into the attempted mail bombings of prominent Democratic officials by Cesar Sayoc; the investigation and arrest of the pedophile and rapist Jeffrey Epstein as well as that of onetime celebrity lawyer Michael Avenatti; the repatriation of art stolen by the Nazis during World War II; and the office’s civil investigation into deplorable conditions in facilities run by the New York City Housing Authority.

When I got around to asking Berman why he hadn’t disclosed any of the details in Holding the Line in the two years between his firing and the book’s publication, he seemed to get frustrated. We did not discuss any of the critics by name, but the salvos from the likes of Weissmann had clearly annoyed him.

Berman, to his credit, was a relatively low-key figure during his time in office. (This has not been true of all of his predecessors.) “I never gave an interview during my entire time as U.S. Attorney for the Southern District of New York,” he told me, “and I never gave an interview after leaving the office until right before the book came out.”

Some criticism of the book has centered on Berman’s testimony to the Senate Judiciary Committee a couple of weeks after his firing, during which he repeatedly declined to elaborate on why he thought he had been terminated. At the time, his testimony was explicitly limited by the Justice Department — still under Barr’s control — to “the immediate circumstances” of his termination and the two days leading up to his firing. Berman said he started writing the book after his testimony because he was restricted by the department. “I wanted people to understand the politicization of the Justice Department under Trump,” he said, but he told me he felt compelled to remain silent given the rules and norms that typically prevent current and former department officials from speaking publicly about internal deliberations. To address this, Berman told me he had submitted his book for preclearance by the Biden Justice Department, which signed off on the final product. “I couldn’t publish anything without going through prepublication review,” he insisted. “I couldn’t talk about anything.”

This logic is not exactly unassailable. There are, nominally at least, legal protections for department officials who disclose misconduct to the media and the public, though attempting to take advantage of them can entail considerable bureaucratic and professional risk — something I learned firsthand, under far less newsworthy and consequential circumstances, from my own dismal and somehow ongoing dealings with the department’s inspector general. More to the point, far more junior lawyers than Berman came forward during the Trump years to publicly disclose their concerns about improper politicization at the department in high-profile matters — the very sorts of things Berman’s book purports to cover — at a time when the political climate was very different and it was far from clear what the professional and personal repercussions for them would be.

The implications of Berman’s position are also more significant than he seemed to let on initially. “There was no possible way I would have ever gotten my story up for prepublication review in the Bill Barr Justice Department,” he told me. I noted this meant that not only would he have stayed quiet throughout the 2020 campaign, when the information in Holding the Line might have been useful to voters, but that if Trump had been reelected, he would never have published his book. “If Trump had been reelected, I would have submitted the book for prepublication review, but I am doubtful that the Trump Justice Department would have authorized it,” he acknowledged.

A little bit of grace, or perhaps just some realpolitik, may be useful in Berman’s case. He is nothing like Barr — an intemperate, arrogant ideologue who turned on Trump at the last possible minute and penned a truly pathetic letter lavishing him with praise before publishing a book of his own this spring and then becoming a politically expedient public figure in the January 6 Committee’s summerlong excoriation of Trump.

Berman also struck me as sincere in his view on his supposedly limited options, even if other people in his shoes might have had a higher tolerance for risk. Experienced government investigators, like the media, are well accustomed to taking information from people in dubious circumstances, including when the sources may have unclean hands, when they are trying to advance their own interests, or when they may be motivated, in part or whole, by personal revenge. What matters above all is the accuracy and completeness of the disclosure, and if the Senate Judiciary Committee finishes its investigation, the public should get a competent vetting of Berman’s claims.

For the time being, it’s up to all of us to make of Berman’s account what we can — with all of its flaws and arguably self-serving features — and to heed his warning, however obvious it may seem to those of us who didn’t work to elect the man. Trump’s use of the criminal-justice system and tractable conservative lawyers to serve his political and personal interests will be much worse in a second Trump administration, this time with someone like the malignant buffoon Jeffrey Clark leading the Justice Department. Trump, after all, has a long — and growing — list of scores to settle.

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Geoffrey Berman: Another Trump Administration Would Be Worse

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21.09.2022

“The prospect of a second Trump administration frightens me.”

Geoffrey Berman, who held a critical position in the Trump Justice Department as the U.S. Attorney for the Southern District of New York, was speaking with me last Friday after a week of promoting his new book, Holding the Line. It’s an ostensible tell-all about the efforts of Donald Trump and Attorney General Bill Barr to use the SDNY to benefit the president and his allies and to punish their adversaries. This was already apparent, but it is also a warning about another Trump term. “All of the dangerous and outrageous things he did and tried to do as president will be repeated if there’s a second administration, except he’ll be more successful in doing those things the second time around,” Berman told me. “While he was president, Trump knew he had to stand for reelection. If there’s a second administration, he’ll be free of that concern.”

Berman was fired in June 2020 after refusing to pretend he had quit, but his noisy exit ensured that his successor would be his well-regarded deputy, rather than the transparently unqualified but likely more pliant successor that Barr wanted to install. More than two and a half years since the Trump administration ended, there are familiar elements to Berman’s defection, which has in some ways fit the experience of other former Trump officials. The release of the book itself followed a recognizable path: The New York Times ran a prepublication story teasing all the dishiest Trump-related bits, and Berman made the rounds on television all week, practically setting up shop in MSNBC’s studios. The publicity tour got an unexpected boost in the form of an announcement from Senate Judiciary Committee chairman Richard Durbin, who said the panel would investigate the “astonishing and unacceptable deviations from the department’s mission to pursue impartial justice” that are reflected in Berman’s account.

Others were less welcoming. Andrew Weissmann, the Justice Department veteran who served in a senior role on Robert Mueller’s Trump-Russia investigation, captured the feelings of a sizable Now he tells us? contingent. “Is it too harsh,” Weissmann asked, “to simply not want to hear from the likes of” Berman and others, “who in order to gain power got in bed with Trump knowing precisely who and what he was, and only belatedly squawked after their jobs were threatened?”

The frustration and skepticism are understandable. One could easily be forgiven for finding the whole genre of books by former Trump officials turned belated antagonists highly annoying. For the most part, the revelations and criticisms have been too little, too late; were seemingly calculated to generate adulatory press coverage, cable-news contracts, and money for the authors; and at times were grossly distorted to cater to the anti-Trump crowd. But it would be too simple merely to lump Berman in with the rest of these people.

A self-described Rockefeller Republican and Establishment legal conservative, Berman volunteered for the Trump 2016 campaign and the presidential transition team, but unlike other Republicans who have been critical of Trump since his loss, he has decisively turned against the man. He writes early in his book that he “believed that Candidate Trump was an act, a smart guy playing a role” — a view he now acknowledges, with the benefit of hindsight, as “craziness.” I asked whether he had voted for Trump in 2020 and whether he would vote for him in 2024 if he ran for reelection against Joe Biden. Each time, Berman answered with a simple, declarative “no.”

Berman is also the highest-ranking former Trump Justice Department official speaking credibly and openly about the threat of another Trump term. Others have provided self-serving and factually questionable accounts of their own conduct. Many more have been happy to slink back into the morally and ethically forgiving private white-collar sector and cash big checks while staying quiet about their time in the administration, even when it is obvious that they have stories the American public deserves to hear. (Remember Rod Rosenstein?) Berman occasionally takes aim at some of these people in his book — sometimes directly, other times implicitly — making his account a welcome departure from the normal rules of elite lawyering, which tend to reward silence about the shortcomings........

© Daily Intelligencer


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