Last week, Geoffrey Berman, former U.S. attorney for the Southern District of New York, released his book detailing his experience being fired by Donald Trump for doing what U.S. attorneys are supposed to do — enforce the law. Berman’s treatment was part of a broader pattern of Trump abusing his power to remove executive branch employees. Congress can – and must – protect against this abuse. Otherwise, democracy itself is at risk.
At the time of Berman’s firing in June 2020, his office had numerous investigations pending into Trump’s affairs and associates, including Rudy Giuliani and Lev Parnas; money laundering at Deutsche Bank (one of Trump’s biggest lenders) and Turkey’s state-run Halkbank (which Trump had discussed with President Erdogan); illegal use of money by the president’s inauguration committee; and, most notably, payoffs from Trump’s private attorney Michael Cohen to Stormy Daniels on Trump’s behalf.
The United States does not want, and cannot tolerate, a criminal president.
Berman also had refused to prosecute Trump’s political opponents, including former Secretary of State John Kerry. Berman alleges that after his office indicted Cohen for the payoffs and Republican Rep. Chris Collins for insider trading, Justice Department lawyers told him, “It's time for you guys to even things out and indict a Democrat before the midterm election."
When Berman refused, he was fired. And he wasn’t the only executive branch official Trump dismissed to hinder criminal investigations of himself and those around him and to encourage investigations of his political enemies. Trump dismissed FBI Director James Comey, Attorney General Jeff Sessions and other top law enforcement officers, and repeatedly threatened to fire others such as Special Counsel Robert Mueller, simply for doing their jobs.
To be clear, a president has wide latitude to remove executive branch officers under Article II of the Constitution. But there are limits, and Trump frequently pressed or surpassed those limits. As Professor Claire Finkelstein and I explain in a new law review article, a president may not use his removal power to assist him in the commission of a crime, or, what is more common, to help him in covering up a crime. To argue otherwise is to argue that the framers contemplated a Constitution condoning and protecting a criminal president. There is simply no evidence to support such a proposition and indeed the impeachment clause, which specifically mentions “high crimes and misdemeanors,” suggests the opposite.
The United States does not want, and cannot tolerate, a criminal president. This is precisely what Professor Finkelstein and I argued in an amicus brief to the Supreme Court ahead of its 2020 decision in Trump v. Vance. Not a single justice agreed with Trump’s lawyers that a president is categorically immune from criminal process. Instead, they followed the precedent set decades earlier in the 1974 ruling United States v. Nixon, when the Supreme Court upheld a federal prosecutor’s subpoena of White House tapes.
In 2020, as in 1974, the court sent an unequivocal message: Nothing in the Constitution or anywhere else says that a president is above the criminal law. But rather than heed this obvious principle, Attorney General William Barr turned the Justice Department into an arm of the Trump re-election campaign. For two years leading up to the election, DOJ prosecutions and investigations were carried out, or not carried out, to protect the president and pursue his enemies. Like Berman, anyone who refused to go along could be threatened with Trump’s favorite words: “You’re fired.”
How to prevent this malfeasance in the future? Public pressure may be of some help. In October 2020, I worked with a bipartisan group of experts, including former DOJ lawyers, that issued a report detailing politicization and dereliction of duty at DOJ. We called for Barr to be impeached. That never happened, but in late 2020 Barr got cold feet about Trump’s insistence on coercing DOJ to challenge the election results, eventually resigning.
The stakes in protecting federal law enforcement officials from wrongful removal could not be higher.
According to the Washington Examiner, “Trump said Barr ‘became a different man’ after two ethics groups in October called for his impeachment, with the University of Pennsylvania's Center for Ethics and the Rule of Law and Citizens for Responsibility and Ethics in Washington arguing he used his position as attorney general for political purposes to aid the former president.”
Beyond public pressure, Congress should revive and strengthen the independent counsel law that expired in the 1990s, facilitating independent investigation and prosecution of alleged crimes involving the president, persons close to the president and other high-ranking administration officials. Lawmakers should also bolster job protections for U.S. attorneys, either by giving them fixed terms, or at a minimum requiring the DOJ to explain to Congress why the attorney was removed and giving the attorney a chance to respond. We shouldn’t have to wait for a dismissed attorney to write a book about it!
The stakes in protecting federal law enforcement officials from wrongful removal could not be higher. Berman’s firing in June 2020 was part of a long pattern of abuse of power that culminated in January 2021, when Trump demanded that DOJ approve a legal opinion drafted by Jeffrey Clark (the acting head of the department’s civil division) saying that the 2020 election had been fraudulent and legally invalid. When Acting Attorney General Jeffrey Rosen refused to sign the letter, Trump hatched a plot to fire Rosen and replace him with Clark.
The scheme was halted when many DOJ officials reportedly threatened to resign, but had that plot succeeded, the DOJ's legal opinion likely would have been used to coerce Vice President Pence into declaring Trump the election winner on Jan. 6, and perhaps even as an excuse to order in the military to support the Capitol insurgents who demanded the same. Allowing a president to abuse his removal powers to fire lawyers for doing their jobs could bring about the end of democracy. It almost did in January 2021, and we can never let that happen again.