With the storytelling skills of a trial lawyer, Berman describes the episode in which Barr summoned him to Manhattan’s Pierre hotel, “a swanky place where even standard rooms can cost a thousand bucks a night or more.” Barr told Berman that he wanted to replace him at the Southern District of New York with Jay Clayton, the chairman of the Securities and Exchange Commission. Barr even offered Berman a job he apparently thought would be an enticing sweetener — head of the DOJ’s Civil Division, which represents the United States in all civil lawsuits, a big job, but far from the criminal fray. With that job, Barr told Berman, he could “attract clients and build a book of business” for whenever Berman left the DOJ for the private sector. Only after offering him the job did Barr ask whether Berman had any experience in civil law, revealing that the attorney general was not always concerned with the best interests of the department he was entrusted to lead.
Though Berman refused to resign, Barr still issued a press release announcing that Berman was “stepping down,” and that until President Donald Trump could nominate Clayton, the Southern District of New York would be led by Craig Carpenito, the U.S. attorney for New Jersey. Barr bypassed Berman’s deputy, Audrey Strauss, the presumptive choice to serve as acting U.S. attorney. Berman responded with a press release of his own, noting that he was not resigning. His main goal, he writes in “Holding the Line,” was to preserve the office’s independence. The next day, Barr backed down on Carpenito and inserted Strauss into the role of acting head of the office. With Strauss in place, Berman agreed to resign. Berman concludes: “The truth was that Barr was desperate to get me out of the job I was in, and it was not to put a better US attorney in place. The reasons were perfectly obvious. They were based in politics.”
Berman knew all along he was living on borrowed time at the Southern District of New York, given his numerous earlier run-ins with the DOJ over what he deemed were inappropriate orders from department officials. In one episode that predates Barr’s tenure as attorney general, Berman was investigating Gregory Craig, a former White House counsel for President Barack Obama, for potential violations of the Foreign Agents Registration Act. About two months before the 2018 midterm elections, O’Callaghan called Berman and told him to indict Craig and to do so before election day. Berman’s office had recently filed charges in separate cases against a Republican congressman and Trump’s former lawyer Michael Cohen. According to Berman, O’Callaghan had engaged in a heated exchange with SDNY over the reference in the Cohen indictment to “Individual-1,” which, in context, was an unmistakable reference to Trump. Berman had refused demands to remove it. Now, O’Callaghan said of the Craig case, “it’s time for you guys to even things out.” Berman’s office ultimately declined prosecution. The DOJ sent the case to the D.C. U.S. Attorney’s Office, which filed the charges. Craig was acquitted at trial.
In another incident, Berman tells of the DOJ’s pressure to indict former secretary of state John Kerry for violating the Logan Act, a law that prohibits private citizens from negotiating with foreign governments. A call from the DOJ came after a Trump tweet blasting Kerry, who had negotiated the Iran nuclear deal, which Trump later scrapped. The Southern District of New York found no viable legal theory for charges. Several months later, a morning tweet by Trump on the topic was promptly followed by an afternoon call from the DOJ, complaining about delay in charging. When the Southern District of New York told the DOJ it was declining to prosecute, the department sent the case to the District of Maryland, which would later come to the same conclusion.
Barr’s tenure as attorney general, beginning in February 2019, made things even worse. In September of that year, Berman refused to sign the DOJ’s legal briefs in Trump’s subpoena battle with Manhattan District Attorney Cyrus Vance. Vance was investigating the role Trump and the Trump Organization played in payments made to Stormy Daniels and Karen McDougal shortly before the 2016 election. The DOJ was planning to file a statement of interest containing the audacious argument that a sitting president could not be criminally investigated, a view the Supreme Court would later reject. Insisting that his office was not “Trump’s personal lawyer,” Berman refused to sign the statement of interest, but the DOJ persisted. Berman writes that he dealt directly with Rosen, the deputy attorney general, but believed it was Barr who was calling the shots. The DOJ relented only after Berman threatened to tell the court that he did not endorse the arguments in the statement of interest. Rosen later summoned Berman to Washington for a dressing down, telling him that in the future, “he expected the Southern District to follow orders and sign whatever he put in front of us.” Rosen later testified at the January 6 Committee hearings about his own standoff with Trump when Rosen refused to allow the DOJ to be used to legitimize claims of fraud in the 2020 presidential election.
Berman reserves his strongest criticism for Barr, calling him a bully and his behavior “thuggish.” Upon taking office, Barr tried to “kill” the Southern District’s ongoing investigations relating to the campaign finance crimes to which Cohen had pleaded guilty. The reference in plea documents to “Individual-1” made it apparent that Trump faced potential criminal exposure in this investigation. In fact, Barr even discussed dismissing Cohen’s conviction in the same way he would later dismiss the false statements charges against former national security adviser Michael Flynn. In both cases, the defendants had pleaded guilty in open court.
Berman recounts interference by Barr in other investigations. In October 2019, SDNY charged Lev Parnas and Igor Fruman, members of “the inner circle of Rudy Giuliani,” for fraud and campaign finance violations. SDNY was conducting further investigation into their conduct. To Berman’s surprise, Barr proposed that information on Ukraine – some of which could relate to Parnas and Fruman – be funneled through other U.S. attorney’s offices. Berman called the system “utter nonsense,” and suggested it was “really an effort by Barr to keep tabs on” SDNY’s investigation into Parnas and Fruman. Berman believed Barr wanted to keep SDNY “segregated from potentially helpful leads or admissions being provided by Rudy”and that Barr wanted to control U.S. attorneys to advance Trump’s personal and political agendas.
Berman also cites Barr’s interference into SDNY’s investigation into the Turkish bank Halkbank for potential violations of U.S. sanctions against Iran. Trump was close with Turkish President Recep Erdogan and had a property in Turkey known as Trump Towers Istanbul. Initially, Barr pushed Berman to give Halkbank a non-prosecution agreement, which Berman resisted. Later, Barr did a complete about-face. After Trump had a falling out with Erdogan, Barr called Berman and told him to indict Halkbank. As Berman puts it, “Barr, always eager to please his boss, appeared to be doing Trump’s bidding.”
Berman’s book provides a cautionary tale about how political forces can undermine the quest for justice. He’s concerned that power has become centralized in Washington, providing an opportunity for politics to influence decisions. To protect the independence of the 94 U.S. attorney’s offices, he offers some suggestions for reform. For example, he recommends prohibiting DOJ leadership from granting requests by defense counsel to overrule charging decisions made by U.S. attorneys. He further suggests forbidding the DOJ from shopping cases to other districts after they have been declined for prosecution by a U.S. attorney. He also proposes to eliminate prior approval requirements that U.S. attorneys’ offices must obtain from the DOJ for sensitive investigative steps.
Fortunately, most U.S. attorneys know that their job is to exercise independent judgment and to refuse to take action based on politics. Berman reminds us that to do the job right, you must be willing to resign.
Or in some cases, refuse to do so.
Barbara McQuade is a law professor at the University of Michigan Law School and the former U.S. attorney for the Eastern District of Michigan.
Inside the Nation’s Preeminent US Attorney’s Office and Its Battle with the Trump Justice Department
Penguin Press. 331 pp. $30
