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Former Deputy Assistant Attorney General Addresses Clash Over Geoffrey Berman

MICHEL MARTIN, HOST:

We're going to start with the extraordinary confrontation that's been playing out over the last 24 hours between Attorney General William Barr and U.S. Attorney Geoffrey Berman, whose office had been investigating President Trump's associates. Last night, in a surprising move, Attorney General Barr announced that Berman, the U.S. attorney for the Southern District of New York, was resigning. That news apparently came as a surprise to Berman because he put out a statement of his own shortly after, saying, I have not resigned and have no intention of resigning my position, and also suggested that the attorney general lacks the authority to remove him because Berman was actually appointed by a panel of federal judges. And then, just a short time ago, the attorney general responded, saying he had asked the president to remove Berman, which he says he has done, adding that Berman chose, quote, "public spectacle over public service," unquote, by refusing to leave quietly.

So what happens now, and why does this matter? We've asked Harry Litman to help us understand this. He is a former U.S. attorney and a former deputy assistant attorney general, and now the legal affairs columnist for the LA Times. Harry Litman, thanks so much for having us - thank you so much for joining us once again.

HARRY LITMAN: Thanks for having me, Michel.

MARTIN: OK. Well, the Southern District of New York is the office that prosecuted the president's former personal lawyer, Michael Cohen, and has been investigating other members of the president's inner circle, including his current personal lawyer, Rudy Giuliani. Is it your belief that this attempted firing was motivated by those ongoing investigations? Could there be other reasons?

LITMAN: It's hard to imagine other reasons. It is my belief. And the statement that Berman made at the end of his release yesterday seemed pretty pointed. The investigations will continue. So it would be the MO of Barr and the department, the only real reason to do it so summarily Friday night - that seems overwhelmingly likely what's afoot.

MARTIN: So there was this question of whether Barr had the legal authority to fire Mr. Berman. I referenced that earlier. Now Barr says that he's asked the president to remove him from the position. He says the president has done so, although the president was asked about this on his way to Tulsa, Okla. He says he has nothing to do with it. But just to reiterate, Mr. Berman was not actually appointed by the Trump administration. He was named by a panel of federal judges. So what happens now? Who resolves this?

LITMAN: Yeah. That's right. So it gets intricate pretty quickly. But the short answer is that Berman is saying, under the law, where judges appoint him, he stays in office UNTIL there's a new presidentially appointed U.S. attorney, which will not be happening because there won't - the Senate will not be confirming somebody new. That'll be his position. Now. The department will say, well, that the law might say that. But guess what? You can't constitutionally stop the president from firing somebody that he wants to. So it could be a sort of high-stakes constitutional showdown. But if it takes a while to play out, that means in the meantime the investigations continue, they develop. And in the exact opposite way, as with the impeachment, time is against the president here. He really wants to get Berman and even his - Berman's assistant out of there fast.

MARTIN: And I'm just getting a statement from Geoffrey Berman as we are speaking, who says that in light of attorney general's decision to respect the normal operation of law and have Deputy U.S. Attorney Audrey Strauss become acting U.S. attorney, I will be leaving the U.S. Attorney's Office for the Southern District of New York, effective immediately. And then he goes on to say that it's been an honor and lauds Audrey Strauss, saying that she's the smartest, most principled and effective lawyer with whom I have ever had the privilege of working. And I know that under her leadership, this office's unparalleled AUSA's - investigators, paralegals and staff - will continue to safeguard the Southern District's enduring tradition of integrity and independence. So just in. How do you understand that? Yes.

LITMAN: Yeah. So here's what happens. He is throwing in the towel. And he would have - it would have been very difficult for him to try to fight back. He's not going to be, you know, the rogue rebel. Audrey Strauss, he's saying and everyone who knows her agrees she'll handle these investigations in a solid way. And there'll be no worries about them. But her being in there as opposed to Berman, who was appointed by the court, does give Barr and Trump the ability to get rid of her in different ways. And it now will become a sort of political question will they have the brazenness to try to oust her and put a handpicked lackey successor in there? I think probably his stepping down means they have a greater ability to do it. But it also puts the onus on them because it would, in everyone's mind, potentially compromise the ongoing investigations.

MARTIN: Well, there had been - this is a change, isn't it? I mean, initially, hadn't the attorney general said that he was going to move the U.S. attorney from New Jersey into that position? So this does represent a change on the part of the administration, doesn't it?

LITMAN: Right. And it's a gambit by Berman. It's definitely - it's not enough for Barr and Trump. They need to do this sort of two-step. But Berman, I think, is calculating it will be politically very difficult for them to do. Of course, that hasn't stopped, you know, Bill Barr in the past from doing moves in the interests of the president. And it will, you know, remain to be seen what he will do. But that's right. He wants - he doesn't want Audrey Strauss. He wants his own person in there.

MARTIN: Before we let you go, as briefly as you can, the attorney general has said that he plans to nominate Jay Clayton as Geoffrey Berman's replacement. What can you tell us about him?

LITMAN: He's got no prosecutorial experience. He would be a Barr guy. But the question is whether he could take office before he is confirmed. I don't see him getting confirmed by the Senate in short order.

MARTIN: That's Harry Litman. He is the LA Times' legal affairs columnist and a former U.S. attorney. Harry Litman, thank you so much for speaking with us today.

LITMAN: A pleasure. Thanks, Michel. Transcript provided by NPR, Copyright NPR.