David Massey on Former Manhattan Federal Prosecutors Taking a Stand

It is rare for former prosecutors to come together and speak out on a matter of public concern.

But last month, it happened.

David Massey
Richards Kibbe & Orbe
New York

More than 160 former Manhattan federal prosecutors signed a letter condemning President Trump and Attorney General Barr for the firing of Southern District of New York U.S. Attorney Geoffrey Berman.

“The actions of the President and the Attorney General are an attack on the concept that investigations should be conducted in a nonpartisan manner,” they wrote. “They are politicizing an office that for more than 200 years has remained apolitical and are undermining confidence in our criminal justice system.”

David Massey is one of the former prosecutors who helped organize the letter. He is a partner at Richards Kibbe & Orbe in New York.

How did this come about?

“On the morning of June 20, news outlets reported that the Attorney General had issued a press release announcing that the U.S. Attorney had stepped down,” Massey told Corporate Crime Reporter in an interview earlier this month. “The U.S. Attorney then issued a statement that he had done no such thing and that investigations at the U.S. Attorney’s office would continue ‘unimpeded.’”

“That prompted emails between and among alumni of the U.S. Attorney’s office about the need for a public statement about this turn of events. That’s how it began.”

Is there an alumni association of former Manhattan federal prosecutors?

“I don’t think there is a formal alumni association of former Manhattan prosecutors. There is a very strong informal association that is very tightly bound up with the informal white collar bar in New York, which includes prosecutors from other offices, including the Eastern District of New York, the District of New Jersey, the Manhattan District Attorney’s office, the Justice Department and others.”

How many former Manhattan federal prosecutors are there?

“I do not know.  The number is knowable. I just don’t know it. There was an event at the Plaza Hotel in 2014. It was the 225th anniversary of the U.S. Attorney’s office for the Southern District of New York. The ballroom was filled to capacity. Some 700 people attended that dinner.”

Does the President have the authority to remove the U.S. Attorney?

“I am not an expert on the legal memos and authority on this topic. My understanding is that he does. There is an opinion from the Office of Legal Counsel in 1979  that says the President can remove even a U.S. Attorney appointed by a District Court, as Geoffrey Berman was. And I have not read any serious argument that the President does not have the power to remove a U.S. Attorney.”

If that is the case, why the letter?

“A number of circumstances prompted the letter. There was an announcement on a Friday evening that Geoffrey Berman, who is very highly regarded, was stepping down and was being replaced by Jay Clayton, the head of the Securities and Exchange Commission (SEC) pending confirmation by Congress. And he was going to be replaced in the interim by the U.S. Attorney for New Jersey, with no mention at all of the highly regarded Audrey Strauss, the Deputy U.S. Attorney for the Southern District of New York.” 

“That evening, Geoff Berman announced that he had not in fact stepped down. The letter was prompted by the unusual nature of those and other facts. The office was founded in 1789. It was founded before the Department of Justice itself was founded. It has a long tradition of independence from partisan politics and political considerations.”

“Why is that important? It gives comfort to people that important decisions about what gets criminally charged in New York, which affects life and liberty, is made without regard to political interests, personal interests, personal connections, race, gender, religion.” 

“Another background fact is that it has been widely reported that the U.S. Attorney’s Office for the Southern District of New York had ongoing investigations related to various individuals and entities believed to be close to the President. Michael Cohen, the President’s former lawyer, was prosecuted. Rudolph Giuliani’s associates had been indicted. And it was reported that investigations into other people or entities close to the President were under way.” 

“And that was one of a number of factors. As we discussed, Audrey Strauss was passed over, which was not consistent with the tradition of deputies being promoted to the top job. David Kelley, Lev Dassin and Joon Kim all became the acting U.S. Attorney when their U.S. Attorneys left office.”

“It was doubly unusual to pass over Audrey Strauss given how well regarded she is.”

What is that status now of the transition?

“The status now is that Audrey Strauss is the acting U.S. Attorney. That is the right result. But it was very unusual to pass over her and to take Craig Carpenito from New Jersey and put him in that job when he already had a very important job. It was also unusual to do it on a Friday night five months away from the election with Attorney General Barr attempting to fire someone who Trump had personally picked.”

“It was amazing that Geoff Berman had to issue a press release that contradicted the press release of the Attorney General. It was a press release on June 19. And I have it right here. And it says – our investigations will move forward without delay or interruption. We will pursue justice without fear or favor and our important cases will continue uninterrupted.” 

“To have to issue that kind of statement is quite unusual. It is also unusual for the Attorney General to announce that Jay Clayton would be nominated. He is very well regarded in the defense bar in the job that he is in, but he has no experience as a litigator, let alone as a prosecutor, let alone an SDNY prosecutor. And for the past two generations, through the lifetime of all the living AUSAs who signed the letter, the U.S. Attorney has always been a former Assistant U.S. Attorney.” 

Former prosecutors usually don’t step out and make statements like this. They go about their business at their law firms. But others in the legal profession are also stepping out and taking a stand. Sixty-five faculty members from Attorney General Barr’s law school alma mater – GW Law School – say he has “failed to fulfill his oath of office.” What is it about this moment where the bar is weighing in politically?

“It’s not trying to weigh in politically, but rather to say that the office should not be treated politically. The bottom line of the statement is that the combination of circumstances surrounding the removal of Geoff Berman made people believe that the crucial independence of that office was under threat. That is what prompted the letter and why so many people signed it.”

What made Attorney General Barr change his mind on the question of Craig Carpentino being the acting instead of Audrey Strauss?

“I don’t know the answer to that. But the best inference I can make is that on Saturday June 20, Geoff Berman is known to have had a conversation with Attorney General Barr. Geoff Berman has publicly stated that in light of Audrey Strauss being the acting U.S. Attorney, Geoff Berman would leave his position. It seems clear that something was worked out so that Audrey Strauss would take over when Geoff Berman departed.”

What are the prospects for Jay Clayton to become the U.S. Attorney?

“Based on public reporting, my understanding is that Senator Lindsay Graham, the chairman of the Senate Judiciary Committee has said that he will respect the usual process for the appointment of U.S. Attorney’s in the Southern District – known as the blue slip process. That means that the Senators from New York, Kirsten Gillibrand and Chuck Schumer, have a veto. They have both publicly called on Jay Clayton to withdraw from consideration. That suggests that it may be an uphill battle for Jay Clayton to be confirmed.” 

If Jay Clayton doesn’t make it, would Audrey Strauss be a leading candidate?

“She should be a leading candidate, based on her high regard in the bar and within the U.S. Attorney’s office. She was the chief of appeals there. I think she was the first female chief of the securities unit. She went on to be a partner at Fried Frank. She was the general counsel at Alcoa. And she was the deputy U.S. Attorney for the two years since Rob Khuzami left. She should be at the top of the list of candidates. But other than her, I have no idea who they might consider.”

“There is some real possibility that she would just stay in the position as acting U.S. Attorney indefinitely pending a change in administration.”

“It’s important to understand that part of what drove the letter was this high regard that former AUSAs have for Geoff Berman. When he came in as President Trump’s pick for the U.S. Attorney’s job, he was not as well known to the younger generation of AUSAs as some more recent U.S. Attorneys such as Preet Bharara and Jim Comey. That could just be because Preet and Jim Comey were younger when they were appointed. But Geoff Berman was universally well regarded in the job. He is highly substantive and independent.”

“I had a 45 minute meeting with him on a high profile matter, with a lot of other government officials in the room, including people from another federal agency. He led the discussion from start to finish. He was clearly well versed in the facts and the law. Many other people in the defense bar have similar experiences with him. And AUSAs who work in the office with him had similar experiences with him. That high regard for Geoff Berman was part of what motivated the letter.”

[For the complete q/a format Interview with David Massey, see 34 Corporate Crime Reporter 27(13), print edition only.]

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