With the storytelling skills of a lawyer, Berman describes the episode in which Barr invited him to Manhattan’s Pierre Hotel, “a great place where even standard rooms can cost a thousand dollars a night or more.” Barr told Berman he wanted to replace him in 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 a tempting sweetener—head of the Justice Department’s Civil Division, which represents the United States in all civil litigation, a big job, but far from the criminal battle. 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 he was offered the job did Barr ask if Berman had experience in civil law, revealing that the attorney general didn’t always deal with the best interests of the department he is assigned to lead. Although Berman refused to resign, Barr still issued a press release announcing that Berman was “resigning” and that until President Donald Trump could nominate Clayton, the Southern District of New York would be run by Craig Carpenito, the US Attorney for New Jersey. . Barr overruled 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 is not resigning. His main goal, he writes in “Holding the Line,” was to preserve the office’s independence. The next day, Barr retreated to Carpenito and inducted Strauss into the role of bureau chief. 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 wasn’t to get a better lawyer in the US. The reasons were perfectly obvious. They relied on politics.” Berman knew all along that he was living on borrowed time in the Southern District of New York, given his numerous previous encounters with the DOJ over improper orders from department officials.. In an episode that preceded Barr’s tenure as attorney general, Berman was investigating Gregory Craig, a former White House adviser to President Barack Obama, for possible violations of the Foreign Agents Registration Act. About two months before the 2018 midterm elections, O’Callaghan called Berman and told him to impeach Craig and do so before Election Day. Berman’s office had recently filed charges in separate cases against a Republican congressman and former Trump lawyer Michael Cohen. According to Berman, O’Callaghan had engaged in a heated exchange with the SDNY over the reference in Cohen’s indictment to “Individual-1,” which, in context, was an unmistakable reference to Trump. Berman had refused to remove it. Now, O’Callaghan said of the Craig case, “it’s time to smooth things over.” Berman’s office ultimately declined to prosecute. The Department of Justice referred the case to the DCUS Attorney’s Office, which filed the charges. Craig was acquitted at trial. In another incident, Berman tells of the Justice Department’s pressure to indict former Secretary of State John Kerry for violating the Logan Act, a law that prohibits private individuals from negotiating with foreign governments. A call from The Justice Department came after a tweet by Trump 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 from Trump on the matter was immediately followed by an afternoon call from the Department of Justice, complaining about the delay in charging. When the Southern District of New York told the DOJ it declined to prosecute, the department sent the case to the District of Maryland, which would later reach the same conclusion. Barr’s tenure as attorney general, which began in February 2019, made matters even worse. In September of that year, Berman refused to sign Justice Department legal documents 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 Justice Department planned to file a statement of interest that would make the bold argument that an incumbent 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 declaration of interest, but the Justice Department insisted. Berman writes that he dealt directly with Rosen, the deputy attorney general, but believed it was Barr who did the shooting. The Justice Department backed down only after Berman threatened to tell the court that it did not approve of the arguments in the statement of interests. Rosen later called Berman to Washington for a dressing down, telling him that going forward he “expected the Southern District to follow orders and sign off on whatever he put in front of us.” Rosen later testified at January 6 Committee hearings about his own confrontation with Trump when Rosen refused to allow the Justice Department to be used to legitimize claims of fraud in the 2020 presidential election. Berman reserves his harshest criticism for Barr, calling him a bully and his behavior “shattering.” Upon taking office, Barr sought to “kill” the ongoing Southern District investigations into the campaign finance crimes to which Cohen had pleaded guilty. The reference to the impeachment documents in “Individual-1” made it clear that Trump faced potential criminal exposure in that investigation. In fact, Barr even considered throwing out Cohen’s conviction he would similarly later drop charges of perjury against former national security adviser Michael Flynn. In both cases, the accused had pleaded guilty in open court. Berman recounts Barr’s interference in other investigations. In October 2019, the SDNY indicted Lev Parnas and Igor Fruman, members of Rudy Giuliani’s “inner circle,” for fraud and campaign finance violations. The SDNY conducted further investigation into their conduct. To Berman’s surprise, Barr suggested that the Ukraine information — some of which could be related to Parna and Fruman — be funneled through other U.S. attorneys’ offices. Berman called the scheme “absolute nonsense” and suggested it was “really an attempt by Barr to monitor” the SDNY’s investigation of Parna and Fruman. Berman believed that Barr wanted to keep the SDNY “separated from potentially helpful leads or admissions provided by Rudy” and that Barr wanted to control US attorneys to advance Trump’s personal and political agenda. Berman also mentions Barr’s intervention in the SDNY’s investigation into Turkish bank Halkbank for possible violations of US sanctions against Iran. Trump was close to Turkish President Recep Erdogan and owned 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 full 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 of how political forces can undermine the pursuit of justice. He worries that power has been concentrated in Washington, providing an opportunity for politics to influence decisions. To protect the independence of the 94 U.S. attorneys’ offices, he offers some suggestions for reform. For example, it recommends barring Justice Department leadership from accepting requests from defense attorneys to overturn charging decisions made by U.S. attorneys. It further proposes barring the DOJ from purchasing cases in other jurisdictions after they have been rejected for prosecution by a US attorney. It also proposes eliminating the pre-approval requirements that U.S. attorneys must obtain from the Justice Department for sensitive investigative steps. Fortunately, most US attorneys know that their job is to exercise independent judgment and refuse to take action based on politics. Berman reminds us that to do the job right, you have to be willing to let go. Or in some cases, refuse to do so. Barbara McQuade is a professor of law at the University of Michigan Law School and a former U.S. Attorney for the Eastern District of Michigan. Inside the Nation’s Justice Department and its battle with Trump’s Justice Department Penguin Press. 331 pp. $30
