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How the Michael Cohen search warrant impacts the Southern District

Michael Cohen, personal lawyer for President Donald Trump,

Michael Cohen, personal lawyer for President Donald Trump, gets into an elevator at Trump Tower, Dec. 12, 2016 in Manhattan. Photo Credit: Getty Images / Drew Angerer

The FBI raid on the offices of Michael Cohen, who has described himself as the “Mr. Fix It Guy” for President Donald Trump, has put a new spotlight on the region’s U.S. attorneys, especially the status of Geoffrey Berman, who is serving on an interim basis in Manhattan.

Monday’s dramatic turn of events is likely to further complicate consideration of Berman for a permanent appointment.

Special counsel Robert Mueller turned over information about Cohen’s involvement with payments to two women who claim to have had affairs with Trump to the Southern District of New York. On Monday, an NYC team of FBI agents executed a search warrant on three locations where Cohen kept records, and much fuss was made that Berman, a Republican who is considered an ally of Trump, had signed off on the action.

But by Tuesday, we learned Berman had recused himself from any decision-making in Mueller’s investigation. A decision was made to accept the recusal by senior officials reporting to Rod Rosenstein, the deputy attorney general in charge of the Russia investigation. No official explanation was given for the move. It’s rare for a U.S. attorney to recuse himself unless he has a personal or financial relationship with the subject of the probe.

Berman was a campaign donor to Trump, a former law partner of Rudy Giuliani and a close friend of former New Jersey Gov. Chris Christie. Attorney General Jeff Sessions named Berman interim U.S. attorney, although Trump took the unusual step of personally interviewing him for the job.

There was every indication Trump would soon formally nominate Berman for the post, which needs Senate confirmation. That hasn’t happened because Trump has been unable to reach an agreement with Sens. Charles Schumer and Kirsten Gillibrand on the top prosecutors in the Southern District and for the Eastern District for Long Island, where Richard Donoghue holds the interim spot, as well as on a nominee for the vacancy on the prestigious Second Circuit. Without a deal, the New York senators could stall confirmations indefinitely.

An interim designation, however, lasts only 120 days, or until the Senate confirms a nominee. Berman and Donoghue took office on Jan. 5, but with the White House in turmoil and the Mueller probe at full tilt, it’s now more unlikely than ever that Trump will make any nominations, never mind the Senate confirming nominees by the Cinderella deadline of May 5.

The process for what happens next was decided in 2007 by the Senate, which empowered the federal judges of each district to select the U.S. attorney. For the Eastern District, Donoghue seems to have the inside track with the local judges because of his outstanding track record of 11 years as an assistant U.S. attorney on Long Island and his straight-shooter reputation.

In the Southern District, however, Berman was never a sure bet. Now that the Cohen-Trump probe has taken center stage, the appointment of someone who has recused himself from any involvement in the Mueller investigation could sink Berman’s efforts to get judicial approval.

And if Trump fires Mueller, Rosenstein or Sessions (or any combination) to stop the special counsel’s investigation, the Southern District judges are more likely to be motivated to nominate a stellar former judge or federal prosecutor to lead the district and do what he or she wants with all the files seized in the Cohen raid.

This post originally appeared in The Point, the editorial board's daily briefing about politics and policy. Click here to subscribe.

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