Government

I'd Like To Think That Somewhere Trump Is Fuming, As Another Hand Picked Lawyer Recuses Himself

Lawyers and their darn ethical responsibilities thwart Trump once again.

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Donald Trump thinks about “loyalty” the way a drug kingpin might: if he hires you or appoints you or gives you five bucks, then it’s your job to protect him at all costs. You’re supposed to be Trump’s “guy on the inside.” You’re supposed to use your weight or influence on Trump’s behalf.

Lawyers cannot think that way. Lawyers cannot meet Trump’s loyalty test. As Michael Cohen is finding out, even Trump’s own paid attorneys have ethical and legal responsibilities beyond what Trump may or may not demand. If Trump appoints a lawyer or a judge, that attorney has an obligation to his institution… which in many cases has independent authority to check the president and can’t be made to be a mere extension of executive power.

If lawyers feel they owe “loyalty” to the president, then they are required to recuse themselves from actions involving the president. If lawyers don’t feel like they can appear impartial, they have to recuse themselves. The mere act of being appointed by the president might be a reason for a conscientious lawyer to recuse themselves from investigating the president.

I don’t think Donald Trump gets that, but apparently Geoffrey Berman, the U.S. Attorney for the Southern District of New York, does. He did not take a role in the investigation of Michael Cohen, because he recused himself from the issue.

Remember, USAO for the S.D.N.Y. was Preet Bharara’s old job. Trump fired Bharara for… well for no good reason really. Yes, sometimes new administrations fire old United States Attorneys. But not always, and the S.D.N.Y. generally think it’s special and beyond such petty political concerns. Trump firing Bharara was an aggressive move to silence an attorney with jurisdiction over Trump’s business.

But Berman likely didn’t recuse himself just because Trump appointed him as Bharara’s replacement. Berman likely felt the ethical squeeze because Trump took the extraordinary step of interviewing Berman personally for the job.

Presidents don’t usually do that, you know, just in case the U.S. Attorney has to investigate the president or people close to him. A personal interview would make that investigation look… shady. Berman has been forced into this recusal by Trump’s own reckless behavior. From Business Insider:

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“I never heard of a president interviewing a US attorney candidate,” Richard Painter, a University of Minnesota law professor who served as former President George W. Bush’s chief ethics lawyer, told Business Insider in October.

Berman, meanwhile, worked at the same law firm as former New York City Mayor Rudy Giuliani, a close Trump ally, and donated to Trump’s 2016 presidential campaign. Sessions appointed Berman to be interim US attorney for the district after Trump interviewed him.

Berman did the right thing. If he wants to have any credibility in the cases where he doesn’t recuse himself, he kind of had to here.

Donald Trump doesn’t seem to get that his own attitude towards loyalty requires recusal from lawyers he appoints. He’s just hoping that one of these days, he appoints a lawyer who doesn’t take their ethical responsibilities seriously.

It looks like Trump’s plan to protect himself in New York has backfired spectacularly [Business Insider]

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Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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