Throughout this presidency, there has been a wide gap between President Trump’s authoritarian ambitions and his means to carry them out. The sanguine analysis is to dismiss the threat, which indeed can seem ineffectual and even silly. Just in the last day, he threatened violence against peaceful protesters in Tulsa, and is siccing the Department of Justice in a hopeless lawsuit to stop John Bolton’s book even after it has been widely read.
And yet over the last three years, the gap has asymptotically narrowed through a process of trial and error, as Trump has discovered which officials are unwilling to undermine the rule of law and removed them. The most chillingly effective step in this process has been the tenure of William Barr. The attorney general’s combination of panic-fueled commitment to total culture war and experience in implementing the theory of the unified executive (under Republican administrations) has perfectly suited him for the task.
Barr, the perfect bureaucratic authoritarian, has carried out Trump’s vision of law enforcement as a sword against his enemies and a shield for his allies. The latest step is a purge of U.S. Attorney Geoffrey Berman, who is running the Southern District of New York.
Barr’s many-faceted steps to Trumpicize the Justice Department have produced different forms of resistance. Robert Mueller sent a politely worded letter objecting to Barr’s misleading summary of his report, before slinking off quietly by delivering a somnolent, unwilling testimony before the House and then going silent. Several prosecutors have quit after Barr undermined their cases against Trump cronies Roger Stone and Michael Flynn.
Berman appears unwilling to go gently into that good night. He released a shockingly defiant statement not only contradicting Barr’s claims he had resigned and promising to stay in his post until duly replaced, but hinting that he was being purged in order to quash ongoing investigations threatening the president. “Until then, our investigations will move forward without delay or interruption,” he promised, “and intend to ensure that this Office’s important cases continue unimpeded.”
The SDNY is perhaps the key source of legal risk to Trump and Barr. Not only does the office traditionally operate with unusual independence from Washington, its territory covers Trump’s own center of operations.
The Wall Street Journal reports Berman has clashed repeatedly with Barr over his office’s investigations into sundry Trumpian misconduct. Barr “expressed skepticism” over Berman’s investigation of hush-money payments Trump made to Stormy Daniels, a campaign-finance investigation of Rudy Giuliani. CNN reported last February that Barr tried to quash a charge pursued by Berman’s office against a Turkish bank that had helped Iran evade U.S. sanctions, after Turkish president Recep Tayyip Erdogan personally asked Trump to intervene in the case.
What cases might Berman be pursuing at the moment? News reports have identified two obvious possibilities. The first is an apparent embezzling scheme during Trump’s inauguration. The inaugural committee raised twice as much money as any previous such affair, yet failed to account for its massive intake of funds. SDNY has been looking into the overpayments since 2018, some of which were spent at Trump’s own properties and thus lined his pockets.
The second, and even more explosive, case involves Rudy Giuiliani, Trump’s “attorney,” occasional medical adviser, and freelance Ukrainian diplomat. Giuliani ran a scheme in Ukraine designed primarily to pressure its government to announce an investigation of Joe Biden. But Giuliani’s crew, which included two shady businessmen, Lev Parnas and Igor Fruman, were also strong-arming Ukrainians for a piece of their lucrative energy market. The Journal reported last November that Giuliani was the target of an SDNY probe. Parnas is cooperating with authorities and reports that Trump personally directed his actions.
What caused Barr to finally eliminate Berman might be one of those cases crossing a critical threshold, or both, or another case that has not been made public. Or possibly the precipitating cause is just the broader danger of an independent prosecutor having jurisdiction over a president with a long history of criminal associations. Berman seems to be now racing to complete whatever work he is engaged in before Barr can quash it. Whether Berman or Barr has the advantage of time depends on how close any cases may be to prosecution. But any new charges brought against Trump beyond these will either be made against a former president Trump, or not at all. The window in which his actions are subject to the law is closing fast.
The rule of law will probably survive another five months in recognizable form. It almost certainly cannot survive another four years beyond that.
