Today, Explained - How not to fire someone

Episode Date: June 22, 2020

Attorney General William Barr tried to quietly push out the top federal prosecutor in Manhattan on Friday night. Then everybody noticed. Transcript at vox.com/todayexplained. Learn more about your ad choices. Visit podcastchoices.com/adchoices

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no one has to deal with the fallout for a few days. In politics, you have the added advantage of avoiding lots of news coverage. That's why they call it a Friday news dump. The Trump administration has been dumping a lot of people lately, but this past Friday, it didn't go according to plan because the person they tried to fire refused to leave. And it was pretty messy what went down over the weekend at the U.S. Attorney's Office of the Southern District of New York. And this U.S. Attorney's Office is particularly important.

So this is the office that oversees Manhattan. It's been often referred to somewhat self-importantly, perhaps, as the sovereign district of New York. They have a very lofty view of their own independence. And in this administration in particular, they do oversee a lot of cases, Trump being from New York, of course, that have to do with Trump. Now, President Trump has fired the person in charge of this office before. You might remember him, Preet Bharara, an Obama appointee. But this time around, it was a Trump administration appointee being fired. There was an attempt not only to get rid of the U.S. attorney for the Southern District of New York, Jeffrey Berman, but also to institute a temporary replacement for him and to nominate a new replacement for him. And it basically all comes together to look like Trump and Barr

wanted this guy gone as quickly as possible. Andrew Prokop is back from paternity leave just in time to help us understand why. We started with the guy Trump and Barr wanted to fire, Jeffrey Berman. Jeffrey Berman, he was never officially confirmed by the Senate to this job, but he was Trump's pick and he ended up being appointed to the job on an acting basis in 2018. And then a bunch of judges confirmed him to fill the post as long as he wanted to. And so he's been in charge since early 2018. We will not hesitate to investigate and prosecute those who engage in criminal conduct that draws into question the integrity of our political process. So he's overseen stuff like the Michael Cohen investigation, though technically he was recused from any involvement in that one.

He's overseen more recently the indictment of those two close associates of Rudy Giuliani, Lev Parnas and Igor Fruman, who were involved in that whole Ukraine caper. And he's overseen a bunch of other politically charged cases that have to do with New York to the Trump inauguration committee, the money around that STNY was investigating. And there's all sorts of other stuff from Jeffrey Epstein to Deutsche Bank.

Why try and fire him? What's Berman's relationship been like with the Trump administration since he was appointed? He did appear to be a Republican in good standing and trusted by the original Trump Justice Department. Now, before Jeffrey Berman took his position here, he actually donated $5,400 to the Trump campaign in 2016 and even served on the Trump transition team. But Trump has been annoyed with him since the Cohen investigation, basically. He has reportedly complained in private about wanting Berman gone, about what Berman's doing, you know, similar stuff to what we would hear before Trump fired James Comey, while Trump was angry at former Attorney General Jeff Sessions

for recusing himself. When these people in investigatory positions do things that end up harming Donald Trump politically, because they're trying to enforce the rule of law, Donald Trump tends to get angry at them and want them gone. So that's the backdrop for what happened this past weekend. So on Friday, Bill Barr met with U.S. Attorney Jeffrey Berman in New York, and Barr reportedly asked him to resign or at least broach the possibility that he might appoint someone else to his position. There's a bit of a he said, he said about what happened in this conversation exactly, but it apparently didn't end with any concrete decision or agreement.

Then, a few hours later, a little after 9 o'clock p.m. Eastern Time, Attorney General Barr issued a statement. The statement announced that President Trump would nominate Jay Clayton, who's currently the chairman of the Securities and Exchange Commission, to be the new U.S. attorney for the Southern District of New York. The release also said that Jeffrey Berman would be stepping down on July 3rd. And until Clayton gets confirmed by the Senate, Berman would be replaced by a guy named Craig Carpenito, who is currently the U.S. attorney for New Jersey. And that's what looked weird to people from the start. Why is that weird?

Well, ordinarily, what you do if you want a new U.S. attorney for a certain district is you nominate someone and that person will get confirmed and then they would take the job. Or if someone has to leave the job before their replacement is confirmed, then their deputy could take over. What's not usually done is to reach all the way outside the Southern District of New York, grab some other political appointee in another district and slot them in there just temporarily to take control of things, usher the previous guy out the door while waiting for the new permanent guy to be confirmed. So how does Berman find out that he's being replaced officially?

Berman found out by that press release. And he seems to have been a bit taken aback by this because a little less than two hours after Barr released his statement, Berman released his own statement. He said, I learned in a press release from the attorney general tonight that I was stepping down as United States attorney. I have not resigned and have no intention of resigning. He said he intends to ensure that this office's important cases continue unimpeded. And he said that he would step down only once a presidentially appointed nominee for his job is confirmed by the Senate. So he's basically saying, hold on, I'm actually not going anywhere. And he is implying in his references to ensuring that the investigations he's overseeing continue unimpeded. He's implying that this may be part of an effort to impede these investigations.

That's where we left things on Friday night. And then Berman went into the office on Saturday. So then on Saturday afternoon, Barr released a new statement. He said that Berman had chosen public spectacle over public service. And because you have declared that you have no intention of resigning, I have asked the president to remove you as of today, and he has done so. So basically, you're fired. Barr also said, though, in this letter that he's ditched the plan to bring in the U.S. attorney for New Jersey to take over the district. He says that now Berman will, in fact, be succeeded by the person who would ordinarily succeed him, the deputy U.S. attorney of the Southern District of New York, Audrey Strauss.

Okay, so Barr meets with Berman on Friday. A few hours later, Barr says Berman's resigning. Even later Friday night, Berman says, no, I'm not. Then Barr calls up his boss on Saturday and has President Trump make it official that he's firing Berman anyway. Well, what's weird about this is that on Saturday afternoon, around the time that Barr had released that statement saying that Trump had ordered Berman fired at his request, Trump seemed to dispute that. Well, that's all up to the attorney general. Attorney General Barr is working on that. That's his department, not my Department. He wants to make it clear, perhaps because he got in so much trouble

with potential obstruction of justice related to the Mueller report, that he is not involved in any of this. This is just what Bill Barr is choosing to do. Whether that's actually true, we don't know. This just feels so strange. If the idea of a Friday night firing is to avoid news coverage and brush the whole thing under a rug, I mean, he really face-planted here. How much of this went according to Attorney General Barr's plan? none of it. And it's not entirely clear what he expected would happen in a late Friday night

purge of the head of the most famous U.S. attorney's office in the country who is investigating all sorts of politically fraught matters. But clearly the idea to do this switcheroo had to fall apart due to Berman's defiance and the general public outrage around all this. The real unanswered question here is why did the president and Mr. Barr do it? No reason was given why Mr. Berman was fired. Was he fired because of criminal investigations he was conducting into Mr. Trump or his associates? Well, that's one of the big mysteries here. Why was it so important for Bill Barr to get Berman out of there quickly? There's been a lot of speculation

on that, what the Southern District of New York might have been doing. Could it have involved that investigation into Rudy Giuliani's associates and also into Rudy Giuliani himself? We haven't heard much about that lately, but the prosecutors have said they want to bring more charges in that case. Could it have involved the Trump inauguration investigations? We haven't heard much about that in a while or all sorts of other things. But we don't really have a lot of answers on that. Berman, he knows what his office has been doing. He has been invited to testify to the House Judiciary Committee on Wednesday, but it's unclear if he will appear there. But stay tuned for more on that. You said it, Andrew. Here comes a quick break.

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terms and conditions apply. Today, today explained. Andrew, help us understand how big a deal this firing was, because it's not the first time. It's not the 40th time. Preet Bharara was fired from the same post. James Comey comes to mind. Why is this one significant other than the hot mess. Yeah, it's a pretty big mess, and it is just the latest example of how President Trump seems to only want people in these jobs who will turn a blind eye to any wrongdoing of the president or any of his associates.

And U.S. attorneys in general, firing them is something that has been frowned upon. Back in the second term of the George W. Bush administration, he and Karl Rove decided to try and push out several U.S. attorneys who weren't pursuing certain cases that the Bush administration may have wanted them to pursue, like prosecuting Democrats or going after supposed voter fraud and so on. And this became a major scandal just because it was considered so unusual to fire your own U.S. attorney who you yourself appointed. Because traditionally what a president does is they appoint their U.S. attorneys, and then it's sort of hands-off. They get to run their own show, more or less, as they see fit when it comes to criminal prosecutions. And when the Bush

administration did try to meddle with this a little bit, it blew up in their face. It became a major scandal, led to the ouster of the Attorney General, Alberto Gonzalez. So yeah, it's generally considered that you should not be doing this, that it looks highly weird to fire any U.S. attorney suddenly, especially one that you yourself have appointed, and especially one that has been overseeing investigations implicating your associates. And how much of this is coming directly from President Trump? And how much of it is coming from William Barr, the attorney general? Do we have any idea?

That is one of the big mysteries in all of this, because, you know, this isn't just Jeffrey Berman and the Southern District of New York that we're talking about. A similar episode unfolded earlier this year in the U.S. Attorney's Office for the District of Columbia. That is the office that had been overseeing a lot of the prosecutions brought by former special counsel Robert Mueller's team. And the president and Attorney General Barr evidently were very unhappy with how some of those prosecutions had been going, most notably with regards to Michael Flynn, the former national security advisor, and Roger Stone, Trump's longtime political advisor. Flynn pled guilty

and Stone was convicted at trial. But then there were late interventions from Barr into the U.S. Attorney's Office for D.C. to give a weaker sentencing recommendation for Stone, and then eventually to try and have the case against Michael Flynn withdrawn entirely. That was a while ago, not to say it's okay, but is it strange to try to remove someone in this high profile of position so close to an election? Yes. Traditionally, the second term is when you rotate out your personnel, bring in new people. It would have been pretty natural to do this at the start of the second term. Doing it near the end of a president's first term is a little weird. You know, showing somebody the door who's been there for a couple

years and had no intention on leaving. Yeah, it raises eyebrows. It seems odd. And there have been other rather sudden ousters, not in the Justice Department, but in other agencies, of the inspectors general. It's their job basically to investigate malfeasance or misconduct during their own agency. And we've had the intelligence community inspector general, defense department inspector general, health and human services, Inspector General, the State Department, Inspector General, the Transportation Department, Inspector General, all pushed out, many of them pushed out in April and May, late on Friday or Saturday nights.

It's become a pattern of doing these ousters over the weekend. They seem a little shady, and it's weird. And it leaves us with a government that's just far less accountable. Is that fair? Yeah, they're pushing out systematically people who, investigators or prosecutors who have shown independence, who have shown a willingness to pursue investigations that the president doesn't like or that might result in bad headlines for the president. And it seems to have been Bill Barr's project and the Trump White House's project to make sure that a bunch of these people are ousted and the people who can be more trusted or relied upon politically get put in those jobs instead. That's the goal, at least. It didn't really work out that latter way in the Southern District of New York. Andrew Prokop, he's a senior correspondent at Vox. I'm Sean Ramos for him.

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