President Trump must have figured Geoffrey Berman would make the perfect prosecutor.
Like Trump, Berman is the son of a real estate developer.
Like Trump, Berman graduated from Wharton School.
Like Trump, Berman once owned a New Jersey sports franchise, in his case a minor league hockey team in Trenton, the Titans.
Berman was a Republican and a managing shareholder at the law firm of Greenberg Traurig, home to Rudy Giuliani, one of Trump’s blindest supporters.
Berman had even donated $5,400 to Trump’s campaign in 2016.
So, after interviewing him in person, Trump decided Berman was just the one to become the new interim United States Attorney for the Southern District of New York.
That being the venue that covers Trump Tower and the rest of Manhattan, so the one venue other than Washington, D.C. where Trump was most likely to face legal jeopardy.
And the Trumpian wisdom of the nod seemed affirmed by Senator Kirsten Gillibrand’s characterization of it.
“Deeply disturbing considering the conflicts of interest inherent by his potential jurisdiction on matters that could affect the president personally,” she said the Berman appointment.
But what did this seemingly perfect prosecutor do when the Manhattan U.S. Attorney’s office got a referral from Special Counsel Robert Mueller concerning Trump’s lawyer Michael Cohen?
Did Berman wink?
Did he stall?
Did he go on the attack in the way of Trump’s mentor, the deceased, but never departed Roy Cohn?
No, this guy Berman immediately went and recused himself like some Yankee version of Attorney General Jeff Session.
How was Trump supposed to know that Berman has actual principles?
In retrospect, there were hints of integrity early on, when a young Berman joined the Iran-Contra investigation. He was part of the three-prosecutor team that secured the probe's sole conviction, sending Thomas Clines of the CIA to prison.
And the actual differences between the two real estate scions might have been obvious to anyone who followed the hockey team that Berman founded and then managed during a brief time when he joined his father in the family's real estate development business. Berman’s Trenton Titans were a big success and he sold the team at a big profit. Trump’s New Jersey Generals lost $22 million and took down a fledgling football league with it.
Now Trump seems poised to take down himself, or at least his lawyer.
And with the recusal by Berman the developer’s son, the referral from Mueller is being handled by the deputy U.S. Attorney, Robert Khuzami. He is the son of two professional ballroom dancers.
That’s right, Mr. President, his dad and mom are ballroom dancers!
Deputy U.S. Attorney Khuzami is a Republican and even spoke at the 2004 Republican convention in support of George W. Bush.
But that will only make it harder for Trump to say he is the victim of Democrats.
And Khuzami is an expert at financial crimes, having ordered the arrest of 120 people for securities fraud in a single day during his earlier time as a Manhattan federal prosecutor. He subsequently served as head of enforcement at the U.S. Securities and Exchange Commission.
Khuzami was also a lead prosecutor in the biggest terrorism case to date, involving the Blind Sheik, Omar Abdel-Rahman. The Sheik and his codefendants were found guilty of the 1993 bombing of the World Trade Center, as well plotting to bomb simultaneously the New York FBI headquarters, the United Nations and the Holland and Lincoln Tunnels. Khuzami's work on the case earned him the Attorney General's Exceptional Service Award for "extraordinary courage and voluntary risk of life in performing an act resulting in direct benefits to the Department of Justice or the nation.”
The Blind Sheik’s attorney was Lynne Stewart, who was suspected of relaying messages to and from her client that enabled him to continue running his terror organization from prison. FBI agents who worked the case remember the hand-wringing within the Justice Department when they sought to secure a search warrant for Stewart’s office.
The lawyers of the Department of Justice were hugely reluctant to authorize the search the sanctum of a fellow lawyer, even one who was facilitating terrorism. The agents had to establish highly probable cause and they had to detail exactly what they expected to find in the office. Even then, some in Justice were hesitant.
But the Justice Department and then a federal judge finally signed off. The agents raided Stewart’s office. She was convicted and sentenced to a decade in prison, but granted compassionate release after four years. She died of cancer in 2017.
By then, Khuzami had become a partner in a law firm, earning as much as $11 million in a year. He nevertheless returned to public service to become Berman's deputy in January.
Berman's recusal made him the one in charge as the U.S. Attorney’s office moved to secure a search warrant for another well-known New York lawyer.
If securing a warrant for a lawyer aiding a terror leader who bombed the World Trade Center was tough, imagine how difficult it must have been to secure one for the lawyer of a sitting president in a case involving alleged hush money over consensual sex with a porn star and a playmate.
With regard to all such searches, the U.S. Attorneys' Manual says: “There are occasions when effective law enforcement may require the issuance of a search warrant for the premises of an attorney who is a subject of an investigation, and who also is or may be engaged in the practice of law on behalf of clients. Because of the potential effects of this type of search on legitimate attorney-client relationships and because of the possibility that, during such a search, the government may encounter material protected by a legitimate claim of privilege, it is important that close control be exercised over this type of search.”
Before taking the application to a judge, prosecutors must submit to their higher-ups a form “containing relevant information about the proposed search along with a draft copy of the proposed search warrant, affidavit in support thereof, and any special instructions to the searching agents regarding search procedures and procedures to be followed to ensure that the prosecution team is not ‘tainted’ by any privileged material inadvertently seized during the search.”
Deputy Attorney General Rod Rosenstein, filling in for the recused Attorney General Jeff Sessions, is said to have given the final go ahead to Deputy U.S. Attorney Khuzami, filling in for the recused Berman. All four are Republicans.
The prosecutors and agents then had to convince a judge, who surely wanted the most probable of probable cause and a precise description of what was being sought.
At 7 a.m. Monday, FBI agents searched Cohen’s office, home and a hotel room that he had been using.The very fact that the Department of Justice had approved the warrant and a judge had then signed it suggests that Cohen is in considerable trouble.
“There’s got to be something to it,” an agent who worked the Stewart case said of the Cohen case.
On hearing of the search in a jurisdiction where he had appointed the seemingly perfect prosecutor, Trump declared it “an attack on our country… (and) what we all stand for.”
Trump subsequently tweeted, “Attorney–client privilege is dead!” and “A TOTAL WITCH HUNT!”
In fact, the agents at each search location were accompanied by a “privilege team” of colleagues not involved in the investigation, but charged with preventing any intrusions into protected materials beyond the very specific parameters of the search. The case agents cannot even glance at a document or a computer file or phone data until the privilege team has given the okay.
“While every effort should be made to avoid viewing privileged material, the search may require limited review of arguably privileged material to ascertain whether the material is covered by the warrant,” the U.S. Attorneys’ Manual says, “Therefore, to protect the attorney-client privilege and to ensure that the investigation is not compromised by exposure to privileged material relating to the investigation or to defense strategy, a ‘privilege team’ should be designated, consisting of agents and lawyers not involved in the underlying investigation.”
The manual goes on, “Instructions should be given and thoroughly discussed with the privilege team prior to the search. The instructions should set forth procedures designed to minimize the intrusion into privileged material, and should ensure that the privilege team does not disclose any information to the investigation/prosecution team unless and until so instructed by the attorney in charge of the privilege team. Privilege team lawyers should be available either on or off-site, to advise the agents during the course of the search, but should not participate in the search itself.”
Had the folks in Salem followed rules such as the manual details for searches and all other aspects of prosecution, the hunt would have been for naught. Not a single witch would have even been charged.
Michael Cohen is another matter altogether.