The graveyards, they say, are full of indispensable people.
But no one is truly indispensable. That includes the now-ousted U.S. Attorney in the Southern District of New York, Geoffrey Berman, who by all accounts has been a competent, dedicated, and honorable occupant of what’s generally recognized to be the finest prosecution office in the nation.
Attorney General William Barr thought he could “get rid of” Berman and substitute for him however he wanted to, and for whatever reason. Still, now that Berman has been replaced by his former top deputy, Audrey Strauss—a woman unquestionably equal to the task—there’ll be no change whatsoever in what Berman was trying to do. Although President Trump’s attorney Rudy Giuliani denies that he’s been under investigation, Berman has clearly been gathering information to indict Giuliani, and that may be exactly it.
Yes, Barr, purely as a matter of chain of command, might be able to block a Giuliani indictment—he may “conclude” that there’s simply no case there. Just as he did in deciding that the Mueller report had nothing criminal to say about President Trump. And if he could successfully decline Berman’s plan to indict Giuliani, he can say the same to Strauss. No difference.
Maybe the president was offended by his appointee Berman prosecuting Trump’s personal lawyer Michael Cohen (even though it appears that Berman recused himself from that case), and now going after Giuliani. And so, maybe Barr will be softer on Strauss when she tries to follow Berman’s lead. Still, at the end of the day, same result. Giuliani will be indicted or not whoever is at the office’s helm. No hack will ever be confirmed in the Southern District.
Office Will Continue Investigations
Here’s the real thing, though. Putting aside here investigations of the president’s friends and cronies who might seek to benefit from intervention from Main Justice, the office will carry out its investigations and prosecutions at the high level of competent aggressiveness it always has. Consider just some of Berman’s predecessors who have occupied the U. S. attorney position: Emory Buckner, Robert Morgenthau, Whitney North Seymour Jr., Robert Fiske, John Martin, Mary Jo White, Michael Garcia, Preet Bharara. (Notice, I’ve omitted Rudy Giuliani).
The important cases that they and other Southern District prosecutors have brought will continue completely unabated—corruption, money laundering, narcotics conspiracy, securities fraud, tax evasion, foreign corruptly practices, etc. The office’s prosecutors will continue in the unparalleled tradition of their predecessors.
But here’s the difference. Berman, to his great credit was able to hang tough and insist upon Strauss as his successor. As a result, Trump and Barr weren’t able to install a person who could potentially “kill the case” right there at 1 St. Andrews Plaza in Manhattan.
Yes, through this effort by Washington the office may appear to have now somewhat lost its virginity. Some detractors of the office may argue that it will no longer be able to call itself the pristine “Sovereign District.” After all, a palace coup against it was attempted by Washington. But the coup was resisted, and Berman immediately righted the ship by insisting on Strauss as his immediate successor.
The Tradition of the Office Lives on
Yes, the office lost Berman, but the tradition of the office lives on. And every knowledgeable criminal defense lawyer walking into the building—myself included—will know it. And every judge in the courthouse presiding over cases brought by that office will treat those cases in the same way as always.
Some history is worth recalling. It has always been a president’s prerogative to appoint new U.S. attorneys around the country upon assuming office—a president is simply entitled to his own man or woman. In President Nixon’s case he sought to remove Robert Morgenthau who refused to leave for nearly a year, saying he wanted to finish up important cases. He finally relented, and Whitney North Seymour took over with no change whatsoever in the office. And when Trump unceremoniously removed Preett Bharara in 2017, ostensibly because he simply felt Bharara wasn’t sufficiently loyal, nothing changed then either.
Yet, the current imbroglio is dramatically different. Whatever Giuliani may say, everyone “knows” what’s been going on—it’s largely about him (although perhaps with some lesser items thrown in for good measure). But things won’t change, and no one should expect that they will.
So, to answer the question: will the U.S. Attorney in the Southern District of New York prosecute cases differently than before? Certainly not, even though the office has unfortunately been drawn into the national headlines over this.
One more thing. Consider this: some desperate criminal targets of the Southern District may somehow think they can importune a friend of the president to go to bat for them with the president or his attorney general for (inappropriate) help. That is the shame of it. Lawyers “in the know”—and there are many of us—have known forever, though, that politics and cronyism simply won’t play any role in any case in the Southern District. The office will remain incorruptible.
It’s the duty of the bar to tell those under investigation in no uncertain terms that Strauss will prosecute or decline each of her cases on the merits alone. And clients should know that their lawyers will defend their cases on that basis—that basis alone. Any lawyer who doesn’t realize that might want to think about another line of work.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Joel Cohen is senior counsel at Stroock & Stroock & Lavan LLP. Previously, he served as a prosecutor at the New York State Special Prosecutor’s Office and at the Department of Justice’s Organized Crime & Racketeering Section. He is an adjunct professor of law at both Fordham and Cardozo law schools, teaching “How Judges Decide,” a class based on his book, “Blindfolds Off: Judges on How They Decide” (ABA 2014). He is also the author of the recently published “I Swear: The Meaning of an Oath” (Vandeplas Publishing, 2019).