Inside Barr’s Effort to Undermine Prosecutors in New York

Geoffrey Berman, the US attorney for the Southern District of New York, in Manhattan, June 20, 2020. (Hiroko Masuike/The New York Times)

Shortly after he became attorney general last year, William Barr set out to challenge a signature criminal case that touched President Donald Trump’s inner circle directly and even the president’s own actions: the prosecution of Michael Cohen, Trump’s longtime fixer.

The debate between Barr and the federal prosecutors who brought the case against Cohen was one of the first signs of a tense relationship that culminated last weekend in the abrupt ouster of Geoffrey Berman, the U.S. attorney in Manhattan. It also foreshadowed Barr’s intervention in the prosecutions of other associates of Trump.

By the time Barr was sworn into office in February, Cohen, who had paid hush money to an adult film star who said she had had an affair with Trump, had already pleaded guilty and was set to begin a three-year prison sentence, all of which embarrassed and angered the president.

But Barr spent weeks in the spring of 2019 questioning the prosecutors over their decision to charge Cohen with violating campaign finance laws, according to people briefed on the matter.

At one point during the discussions, Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

The prosecutors in New York resisted the effort, the people said, and a Justice Department official said Barr did not instruct them to withdraw the case. The department official, who was not authorized to speak publicly about the matter, noted that Cohen was convicted and sentenced in December 2018, before Barr was sworn in, so there was little he could do to change the outcome of the case.

Still, Barr’s unexpected involvement in such a politically sensitive case suggested that he planned to exert influence over prosecutors in the U.S. attorney’s office for the Southern District of New York, long known for operating independently of Washington. Barr and other officials have told aides and other U.S. attorneys that the Southern District needs to be reined in.

Ultimately, Berman was ousted in a dizzying series of events, heightening criticism that Trump and Barr were purging the government of people perceived as disloyal to the White House.

In an interview with NPR on Thursday, Barr said Berman was “living on borrowed time from the beginning” because the president had not appointed him.

And when Jay Clayton, the Securities and Exchange Commission chairman, indicated an interest in running the Manhattan office, Barr said, it created “an opportunity to put in a very strong person as a presidential appointment to that office.”

“I certainly was aware that given the current environment, anytime you make a personnel move, conspiracy theorists will suggest that there’s some ulterior motive involved,” Barr said.

More than any other federal prosecutor’s office, the Manhattan office had pursued investigations that angered Trump. During the case against Cohen, for instance, prosecutors had indicated that Trump directed the hush money payments, although the office was not seeking charges against the president.

In addition to prosecuting Cohen, the president’s former personal lawyer, the office has been investigating his current one, Rudy Giuliani, over his actions in Ukraine.

Other points of contention included how to proceed against a state-owned Turkish bank that was eventually indicted in an alleged scheme to avoid U.S. sanctions on Iran, and the Justice Department’s decision to assign the U.S. attorney in Brooklyn to oversee all investigations into matters related to Ukraine. Berman’s office successfully fended off that oversight.

The conflict erupted publicly last Friday, when Barr announced that Berman was stepping down and would be replaced temporarily by an ally of the administration. Berman then issued his own statement saying he had no intention of resigning. By Saturday afternoon, amid the unusual standoff, Barr informed Berman that Trump had fired him and that he would be replaced temporarily with Berman’s own deputy.

Barr’s role in the Cohen case also presaged his involvement in two other high-profile prosecutions of Trump associates: Michael Flynn, the president’s former national security adviser, and Roger Stone, a political operative close to Trump who was convicted of lying to Congress and other crimes.

Last month, Barr ordered that prosecutors in Washington drop the case against Flynn, who had twice pleaded guilty to lying to the FBI about phone calls with the Russian ambassador. Barr also overruled a sentencing recommendation from career prosecutors in Washington for Stone, which he viewed as excessive, prompting the office to backtrack.

Even before he became the attorney general, Barr had criticized the special counsel’s inquiry into whether Trump had obstructed justice, submitting an unsolicited memo to the Justice Department attacking what he called a “novel and legally insupportable reading of the law.”

Berman had been recused from the case against Cohen for undisclosed reasons, leaving it in the hands of other senior prosecutors in his office. In August 2018, facing the threat of an indictment, Cohen pleaded guilty to personal financial crimes and campaign finance violations, one of which stemmed from a $130,000 payment to adult film star Stormy Daniels.

In pleading guilty, Cohen pointed the finger at the president, saying he had acted at Trump’s direction.

The New York Times reported previously that Barr had questioned the legal theory of the campaign finance charges against Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Cohen. Before Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was former senator and Democratic presidential candidate John Edwards, who was not convicted.

Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

Cohen, who reported to prison in May 2019, was recently released on furlough and is serving his sentence at his Manhattan home after citing health concerns related to the coronavirus.

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Cohen and affected any future effort to investigate Trump or others in his circle for similar conduct.

Although the Southern District referred to the president as “Individual-1” in court papers and said he directed Cohen to pay the hush money, long-standing Justice Department policy prevents federal prosecutors from pursuing criminal charges against a sitting president.

In July 2019, the Southern District disclosed in court papers that it had “effectively concluded” the hush money inquiry and had ended an investigation into whether “certain individuals” lied to investigators or tried to obstruct the inquiry. At least one of those individuals included a senior executive at Trump’s company, according to people with knowledge of that investigation.

A spokesman for the Southern District declined to comment on Barr’s involvement in the case involving Cohen, as did a spokeswoman for the Justice Department.

Barr’s maneuvering in the Cohen case was not his only attempt to insert himself in Southern District cases. After Barr was sworn in, one of his first actions was to seek briefings on politically sensitive investigations in the office and elsewhere, people briefed on the discussions said.

One matter that Berman’s office described to Barr early on was the growing investigation into Lev Parnas and Igor Fruman, two Soviet-born businessmen who were helping Giuliani unearth potentially damaging information in Ukraine about Trump’s political rivals.

Berman eventually announced charges against the two men, in October 2019, and the Southern District has continued to investigate whether some of Giuliani’s efforts in Ukraine violated lobbying laws. Giuliani has not been accused of wrongdoing, and he has said he acted appropriately on behalf of the president.

For months, the Southern District prosecutors have been consulting officials in Washington about major investigative steps in the inquiry, according to two people briefed on those discussions.

The arrival of the coronavirus in New York forced Southern District prosecutors to cancel interviews with witnesses in the investigation into Giuliani and his former associates, people briefed on the matter said.

The pandemic also forced a delay in the trial of Parnas and Fruman from this October until next February, putting off what could have been an embarrassing spectacle for the president until after the election.

This article originally appeared in The New York Times.

© 2020 The New York Times Company