Exactly one month after I began serving as the Acting Attorney General, Justice Department employees in my chain of command unexpectedly and without notification or briefing accused President Trump of committing a crime. I was frustrated but not shocked by what they did. This break in protocol came from a U.S. Attorney’s office a three-hour train ride away in Lower Manhattan: the Southern District of New York, long referred to as the “Sovereign” District of New York.
Without giving any of its executive branch superiors a heads-up, consistent with DOJ practice, the office essentially accused President Trump of committing a campaign finance crime in a publicly filed court briefing, a salacious accusation perfectly timed for maximum media coverage between Thanksgiving and Christmas 2018 as the Special Counsel’s investigation was nearing its twentieth month of fruitlessness. Everyone familiar with Justice Department norms recognized the Southern District of New York’s surprise as the dangerous sucker punch it was.
There is a time-honored process inside the Justice Department whereby U.S. Attorneys’ offices around the country issue internal “Urgent Reports” to let their superiors in Washington know about important upcoming cases or case developments. (These reports are issued ad hoc by U.S. Attorneys’ offices.) One would expect that if federal prosecutors were going to take the extraordinary step of suggesting that the President of the United States was a party to a crime, an “Urgent Report” to the Department of Justice in Washington, D.C., would be appropriate, or a phone call at the very least. Notoriously unaccountable to the executive branch Department empowering it, the Sovereign District was unwilling to consult with superiors.
In the December 7, 2018, sentencing memorandum filed in federal court, the Southern District of New York’s Attorneys suggested that their boss, the President, was an unindicted co-conspirator with Michael Cohen, his former personal attorney who had pleaded guilty in court ten days earlier to charges of tax evasion, making false statements to financial institutions, and, as the Southern District of New York coyly revealed on its website, “to making unlawful, excessive contributions to the 2016 presidential campaign in the form of payments to two women to secure their silence regarding the then-presidential candidate in order to prevent those stories from influencing the election.”1
I was incredulous. To show President Trump was guilty of a campaign finance violation, Southern District of New York prosecutors would have to prove a double negative: that had he not been a candidate for federal office, he wouldn’t have paid the two women in question. In my view, the Southern District of New York was generating a legally specious charge to torment the President with worry that he could be indicted and to erode political support for him. Prosecutors don’t reference someone in a sentencing memorandum if they don’t intend to go after him.
Former Southern District of New York prosecutor-turned–National Review columnist Andrew McCarthy confirmed this prosecutorial norm and read this sentencing agreement as a telltale sign that the President would be charged with a crime when he left office. McCarthy noted that “when Cohen pleaded guilty in August, prosecutors induced him to make an extraordinary statement in open court: the payments to the women were made ‘in coordination with and at the direction of’ the candidate for federal office—Donald Trump. Prosecutors would not have done this if the President was not on their radar screen.”2
This toxic narrative—that the Southern District of New York was ready to indict the President and would be investigating his family members and businesses—circulated in the media the entire winter. But not only were there no official charges to answer, there was no evidence for the President’s personal lawyers to examine—because from February until July 2019, the Southern District of New York fought the public’s First Amendment and common law rights to read the warrants used to search Michael Cohen’s business and hotel. Finally, on July 17, U.S. District Court Judge William Pauley ordered the Southern District of New York to file a status report and release the requested documents on the public docket by the next day. The result of that court order: the whole world learned that the Southern District of New York had closed the case, and no charges against the President or anyone else would be forthcoming. What an extraordinary smear tactic—and what an extraordinary abuse of power: misusing the authority of the Justice Department in an attempt to cause political damage to the President of the United States.
A writer for the New Yorker penned this humorous description of the Attorneys for the Southern District of New York:
If you’re not a lawyer, and you meet a quiet, studious-seeming person and ask him what he does for a living, you may hear, “I’m an Assistant United States Attorney for the Southern District of New York.” Sounds dull, like “I’m a tax preparer.” But the answer is a little like the one you get when you ask someone where he went to college and he says, “Um, Yale?” What you were really meant to hear was: “I’m a member of the Killer Elite, baby! I’m special ops. I’m strike force. Be very afraid!”3
But there is nothing humorous about the power entrusted to U.S. Attorneys, whose charges can result in serious jail time, as was the case for Cohen. As a great prosecutor once admitted, the power to investigate is the power to destroy. The ones who are heedless of the Justice Department’s regular order are worse than frustrating—they’re dangerous. They might start out as well-intentioned public servants, but many get hungry for media attention and fame. They take on cases—like those involving terrorism and fraud—that capture the attention of the press and turn these lawyers into media-darling crusaders. Prosecuting a major target can put one on the path to fame and political fortune. Indicting the President of the United States, even after he leaves office, would earn some ambitious prosecutor eternal stardom. A headline in the New York Times called the Southern District of New York “A Steppingstone for Law’s Best and Brightest.” The article went on to explain: “Most prosecutors are hired in their late twenties, drawn from elite law schools, firms, and clerkships. They spend at least several years in the office, gaining valuable trial experience.”4 Although the Southern District of New York has undeniable talent and an impressive alumni network, it is clubby at best, rogue at worst.
William Barr acknowledged that during his first appointment as Attorney General (from 1991 to 1993), then–U.S. Attorney for the Southern District of New York Otto Obermaier “wasn’t that independent, but he basically ignored 50 percent of what I said.” (He was contrasting Obermaier with his predecessor, Rudolph Giuliani, who had a reputation for ignoring Washington much more frequently.5)
In the heat of post–September 11, 2001, terrorism prosecutions, Mary Jo White—the first and only female U.S. Attorney for the Southern District of New York, holding that position from June 1993 to January 2002—reportedly pushed back against efforts by the administration of President George W. Bush to move terrorist prosecution cases and the FBI agents assigned to them to the Attorney General’s office in Washington to improve coordination. “White gamely maintained, when I asked her about it, that this move ‘was the right thing to do,’ though she said that she had advised the administration to put the New York agents in Maryland or Virginia, so that they could avoid having to spend a lot of time in meetings,” Nicholas Lemann reported in his profile of White.6
As Attorney General, Jeff Sessions tried to implement new guidelines for U.S. Attorneys across the country consulting with the Justice Department’s National Security Division in Washington, D.C., to help coordinate terrorism investigations among multiple offices. But the Southern District of New York complained about having to report to a Deputy Assistant Attorney General who was based in Washington, and Sessions relented under pressure in 2017. The following year, Sessions was surprised by the Southern District of New York’s plea deal with Michael Cohen: we learned about Cohen’s guilty plea the same day the media did.
The U.S. Attorney at the Southern District of New York, as well as the ninety-two other U.S. Attorneys across the country, sets the tone for the Assistant U.S. Attorneys working under him or her. It’s very important for a President to appoint someone strong enough to stand up for the rule of law and push back against the biases of some at the Sovereign District of New York. We referred to this as going native. When President Trump was elected, Preet Bharara, a former aide to Democratic senator Chuck Schumer of New York, was the U.S. Attorney at the Southern District of New York. Senator Schumer reportedly called Bharara after the November 2016 election and told him the new administration wanted him to remain U.S. Attorney.
President-elect Trump and Bharara spoke a few times by phone during the transition, but on March 9, Bharara refused to return the first official phone call he received from President Trump. The following day, President Trump fired him. “[H]ad I not been fired, and had Donald Trump continued to cultivate a direct personal relationship with me, it’s my strong belief that at some point, given the history, the President of the United States would have asked me to do something inappropriate,” Bharara told his podcast listeners.7 President Trump replaced Bharara with Geoffrey Berman, who then immediately recused himself from the Russia investigation (and the Michael Cohen probe) without explanation.
As the head of the executive branch, the President is entitled to U.S. Attorneys whom he selects. If necessary, they should resign rather than recuse themselves from the most pressing matters involving the administration and their office. I have faith in the way the Founding Fathers designed the three coequal branches of government. The President is in charge of the entire executive branch, and if Congress doesn’t like the way the President supervises government employees under his charge, Congress can try to impeach and remove him. But in the meantime, I thought the President had every right to be unhappy with the Southern District of New York. If you were an executive (the President) and expected to deliver results to stakeholders (the voters), but instead found yourself contending with a serve-your-own-ends culture like the Southern District of New York’s, wouldn’t you be frustrated? I certainly was.
The New York Times reported, based on anonymous leaks from Justice Department employees, that “there is no evidence that [Whitaker] took any direct steps to intervene in the Manhattan investigation [of Michael Cohen]. He did, however, tell some associates at the Justice Department that the prosecutors in New York required ‘adult supervision.’ ”8
The fact is, just as I took no steps—directly or indirectly—to end or alter the Special Counsel’s investigation into alleged Russian collusion with the Trump campaign, I took no steps—directly or indirectly—to intervene in the Southern District of New York’s case against Michael Cohen (and, by implication, the President). But wouldn’t any reasonable leader suggest that “adult supervision” is warranted when President Trump’s appointed U.S. Attorney recuses himself from the Russian collusion investigation, the Southern District of New York openly agitates against the President, and the Special Counsel investigating the Russia case (Robert Mueller) and the former FBI Director and opponent of the President (James Comey) are both Southern District of New York alumni? Comey in particular had gone above the law to try to subvert a President he didn’t like. In strategically releasing documents to trigger Mueller’s investigation, Comey’s behavior set a “dangerous example,” according to the Inspector General’s August 2019 report.9 And to whom did he leak these documents? Daniel Richman, Columbia University professor and (yet another) alumnus of the Southern District of New York. Richman in turn leaked Comey’s FBI memos to the New York Times.
Here is Richman talking to the New Yorker in 2013, sanctimoniously defending the Southern District of New York’s revolving door career climbers, and, ironically, talking about “playing by the rules”:
Daniel Richman, a Southern District alumnus who teaches at Columbia Law School, told me, “When you hear about a former Assistant U.S. Attorney coming back to the office to talk about an investigation, one could say, ‘It’s the old-boy network.’ But those who are closer to the situation see that it’s a much more beneficent system. The company chose a former Assistant U.S. Attorney. That shows it’s committed to playing by the rules. And that’s rewarded.”10
Incidentally, when Berman recused himself, leadership of the Southern District of New York investigation into Michael Cohen first fell to Assistant U.S. Attorney Robert Khuzami, formerly President Obama’s Chief of Enforcement at the Securities and Exchange Commission. Unlike Berman, Khuzami was a career official who couldn’t be fired because of civil service protections. Yet even as a “career” official, “Khuzami has spent his entire career walking back and forth through the revolving door between government and Wall Street,” one media profile reports.11
Two months after I became the Acting Attorney General, Democrats took control of the House of Representatives. Exactly three months to the day, I testified before Congress. By this point, William Barr had already been nominated as the next Attorney General, had cleared the Senate Judiciary Committee, and was on his way to a full Senate confirmation vote. I could have avoided the Judiciary Committee’s requests to appear, and let the responsibility fall to Barr once he was confirmed. But if political theater had to happen, better it drew oxygen from the end of my tenure than the beginning of Barr’s.
There was no doubt theater was what the Democrats wanted. Immediately after the 2018 midterm election, the Democrats came for me with torches burning. Without so much as a handshake introduction, incoming House Judiciary Chairman Jerry Nadler and incoming House Government Reform and Oversight Chairman Elijah Cummings (who passed away in late 2019) phoned my office together, put me on speaker, and started jamming me: We want you to testify! First thing! Are you exerting executive privilege? We have the power to subpoena you!
Time out. Executive privilege? Subpoena? I was ready and willing to appear before Congress because I believe in its authority to conduct oversight of the executive branch of government. That is an appropriate function of the legislative branch. I would appear voluntarily on Friday, February 8, 2019.
Regardless of my willingness, and unable to resist political showmanship, Nadler’s committee voted on February 7 to authorize subpoena power over me even though subpoenas are a last resort used on witnesses who resist testifying. “This subpoena is nothing short of political theater,” complained Doug Collins of Georgia, the House Judiciary Committee’s highest-ranking Republican.12 (Collins grew accustomed to Nadler’s games. One of Nadler’s tricks was putting time-sensitive DOJ email correspondence that Collins was cc’d on in the snail mail so Collins would receive the message days after the fact.)
The New York Times’s unnamed sources also claimed I had told Justice Department colleagues that I felt my job was to “jump on a grenade” for the President. This subpoena authorization vote was one of those grenades. The specter of President Trump’s Attorney General appearing before Jerry Nadler’s committee in the same sentence as “subpoena” was a nonstarter for me.
“Such unprecedented action breaches our prior agreement and circumvents the constitutionally required accommodation process,” I said in a prepared statement to the media. “Based upon today’s action, it is apparent that the Committee’s true intention is not to discuss the great work of the Department of Justice, but to create a public spectacle.” I would be “forced to decline to participate in the hearing” the next day, a Justice Department official wrote to Nadler. “When we start subpoenaing witnesses who come in voluntarily, we’re setting a dangerous precedent,” said ranking member Doug Collins at the time.
Fortunately that evening, Nadler relented: “If you appear before the Committee tomorrow morning, and if you are prepared to respond to questions from our Members, then I assure you that there will be no need for the Committee to issue a subpoena on or before February 8.…”13
This was still not enough assurance that Chairman Nadler wouldn’t serve a subpoena to create a public spectacle while I sat in the chair testifying. Late that night, the Justice Department received written assurances that no subpoena would be served on the day of the hearing.
“The fact Chairman Nadler would try to force the public disclosure of private conversations that he knows are protected by law proves he only wants to play politics,” White House Secretary Sarah Sanders said. “The Chairman should focus on helping the American people rather than wasting time playing pointless political games.”
On February 8, I was the first Trump cabinet official to testify before the new Democrat-controlled House, and I testified unequivocally in my opening statement: “At no time has the White House asked for, nor have I provided, any promises or commitments concerning the Special Counsel’s investigation or any other investigation.” That included the Southern District of New York’s investigation.
But House Democrats were determined to show that President Trump tried to obstruct justice (and this seems almost too ludicrous to type) by allegedly yelling at me.
This is the exchange between me and Rhode Island Democrat Jim Cicilline that raised Democrats’ hopes I had perjured myself trying to hide the President’s alleged attempts at obstruction:
CICILLINE: Sir, answer the question yes or no, did the President lash out to you about Mr. Cohen’s guilty plea?
WHITAKER: No, he did not.
CICILLINE: And did anyone from the White House or anyone on the President’s behalf lash out at you?
WHITAKER: No.
CICILLINE: Mr. Whitaker, did the President lash out to you on or about December 8, 2018, to discuss a case before the Southern District of New York where he was identified as Individual-1?
WHITAKER: No, Congressman.
CICILLINE: Did anyone on the President’s behalf either out—inside the White House or outside the White House contact you to lash out or to express dissatisfaction?
WHITAKER: Did they contact me to lash out?
CICILLINE: Yes, did they reach out to you in some way to express dissatisfaction?
WHITAKER: No.
This interlude, among others, convinced me beyond doubt that the House is not a serious deliberative body in its current composition. The Democrats have been so excited to impeach President Trump for so long, no matter the facts, that they can barely string two sentences together. Even Aaron Blake of the Washington Post had to marvel: “Also complicating this is the jumbled exchange. Cicilline asks both about ‘lashing out’ and expressing dissatisfaction in one question, and Whitaker asks him to clarify that the question is about lashing out. Cicilline says ‘yes,’ but then invokes expressing dissatisfaction again in his question.”14
Still, “Democrats say that Whitaker’s responses to the committee may have been perjury. [Democratic Congressman] Hakeem Jeffries [of New York], a Judiciary Committee member, told Mother Jones … that Whitaker had been an ‘erratic and potentially untruthful witness.’ ”15
Five days after I testified, Nadler sent me a letter on House Judiciary Committee letterhead:
Your testimony on this topic [the Southern District of New York investigation] is directly contradicted by several media reports. The President’s personal attorney responded to those reports with an acknowledgment that “[t]he President and his lawyers are upset about the professional prosecutors in the Southern District of New York.… Moreover, the Committee has identified several individuals with direct knowledge of the phone calls you denied receiving from the White House. As a result, we require your clarification on this point without delay.16
Congress’s duty to perform oversight of the executive branch is one I take very seriously as I believe the three branches of government are responsible for policing each other. I was struck that Congressman Nadler had spent five days constructing a three-page letter obsessing over whether President Trump had expressed an emotion to me about the Southern District of New York investigation—and that sadly, that letter included only two sentences about “several policy matters as well” pertaining to the Justice Department on which Nadler wanted clarification: “asylum seekers,” “gay, lesbian, and transgender individuals,” and “members of the Jewish community (and other religious minorities).” Nothing else.
William Barr was confirmed as the Attorney General the very next day, on February 14. I had served in the acting position, been threatened with perjury charges, and didn’t know what was in store for my future. And I still didn’t know whose (if anyone’s) accusations I was defending myself against.
Nadler’s letter to me referenced only one media report I had allegedly “contradicted”: a CNN report based on anonymous sources. Who were these “several individuals with direct knowledge” of the phone calls I received from the White House? I would spend another three weeks at the Justice Department, but with no end to the leaking on the horizon.
On February 19, 2018, a New York Times “exposé” on page A1 merely rehashed the claims of the unnamed “individuals” who reached out to CNN: “Mr. Trump called Matthew G. Whitaker, his newly installed Attorney General, with a question. He asked whether Geoffrey S. Berman, the United States Attorney for the Southern District of New York and a Trump ally, could be put in charge of the widening investigation, according to several American officials with direct knowledge of the call [emphasis added].” Again, no names, no accountability, and no way for readers to assess the credibility or motives of the leakers.
Later in the story, the Times again quoted “people with knowledge of the discussions.”17
I left the Department of Justice on March 4, 2019, and returned as a private citizen to answer Chairman Nadler’s letter in a closed door session of the House Judiciary Committee a little over a week later. Chairman Nadler told the press that I “did not deny that the President called him to discuss Michael Cohen, the Michael Cohen case, and personnel decisions in the Southern District.” Nadler didn’t even ask me about the “several policy matters” he had mentioned in his letter the previous week. Again, more theater.
Republican staffers present during my testimony told the press I “did not remember” any conversations with Trump about Cohen, but “couldn’t say with certainty one way or the other.”18
What I can say with certainty is that no matter what the facts were, Chairman Nadler was never going to decide President Trump didn’t need to be impeached. Nine days later, Attorney General Barr would receive the Special Counsel’s report that had taken twenty-two months to compose and cost taxpayers nearly $32 million.19 Nadler and his allies would shift their hopes for impeachment from the fruitless Southern District of New York investigation to the fruitless Mueller report.