Following a bizarre chain of announcements, counter-announcements and restatements, the sometimes controversial chairman of the Securities and Exchange Commission will be vying for a new position.
It all started on the evening of Friday, June 19, when Attorney General William P. Barr announced that President Trump intends to nominate SEC Chairman Jay Clayton to serve as the next U.S. Attorney for the Southern District of New York.
Though Clayton has no experience as a prosecutor, Barr cited his “management experience and expertise in financial regulation” as providing “an ideal background to lead the United States Attorney’s Office for the Southern District of New York.” The announcement stated that Clayton would be stepping into the position vacated by Geoffrey Berman, who Barr said was stepping down after two and a half years of service as in that post.
Resign Notions?
However, within the hour Berman put out a statement of his own, in which he indicated not only that he learned of the decision via the press release, but also that, in fact, he not only hadn’t resigned, but had no intention of doing so—and would do so (only) “when a presidentially appointed nominee is confirmed by the Senate.”
His statement noted that until that point, “our investigations[i] will move forward without delay or interruption.” Ironically, Berman himself did not receive that sanction—he was appointed to that position by the federal court in New York after the Trump administration had left the job without a Senate-confirmed appointee for an extended period (more on that below).
Barr ‘Bell?’
However, Barr was not done with the issue—he then issued a letter of his own to Berman, noting that he was “…surprised and quite disappointed by the press statement you released last night.” Barr said that when he issued the statement he “…had understood that we were in ongoing discussions concerning the possibility of your remaining in the Department or Administration in one of the other senior positions we discussed, including Assistant Attorney General for the Civil Division and Chairman of the Securities and Exchange Commission. While we advised the public that you would leave the U.S. Attorney’s office in two weeks, I still hoped that your departure could be amicable.”
But now, Barr said, Berman’s statement indicated he “…had chosen public spectacle over public service. Because you have declared that you have no intention of resigning, I have asked the President to remove you as of today, and he has done so. By operation of law, the Deputy United States Attorney, Audrey Strauss, will become the Acting United States Attorney, and I anticipate that she will serve in that capacity until a permanent successor is in place.” Barr’s original announcement indicated that President Trump had appointed Craig Carpenito, currently the U.S. Attorney for the District of New Jersey, to serve as the Acting U.S. Attorney for the Southern District of New York while the Senate is considering Jay Clayton’s nomination, effective July 3.
And with that, in (yet another) statement Saturday evening, Berman said that because Barr had respected “the normal operation of law” by appointing Berman’s deputy to lead the office, he would step aside.
Confirmation Call?
As for Clayton, the Washington Post reports that he said in a note to SEC employees just after midnight on Saturday that he will stay “fully committed” to his current job as SEC chairman until being confirmed.
Clayton would have to be confirmed by the Senate before he could serve as U.S. Attorney for the Southern District of New York. However, Clayton’s approval in the Senate is far from a sure thing; Senate Judiciary Committee Chairman Lindsey O. Graham (R-SC), said he had not been consulted by the move and would follow Senate tradition by essentially giving New York’s two home-state senators veto power over the nomination. According to the Post, those two senators—Democrats Chuck Schumer and Kirsten Gillibrand—both said Saturday that Clayton shouldn’t even be considered for the job.
Oh, and in yet another ironic twist, in 2018 Gillibrand threatened to exercise that “blue slip” veto to block Berman’s confirmation—which led to his appointment by the courts, rather than the traditional Senate confirmation.
Stay tuned.
[i]And yes, in case you were wondering, Berman’s office has been involved in investigations involving the prosecution of a number of President Trump's associates, including the president's former lawyer Michael Cohen and Rudy Giuliani.
