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Former DOJ Lawyers Say Barr’s Attempt to Install Jay Clayton in SDNY Will Be ‘Dead on Arrival’ in the Senate

Senate Judiciary Committee Chairman Lindsey Graham (R-SC) on Saturday indicated that he does not plan on moving forward with the president’s nominee to replace Geoffrey Berman as the U.S. Attorney for the Southern District of New York (SDNY) without the approval of both of the state’s Democratic senators.  The statement from Graham, who is typically one of the president’s most reliable backers, means that the nomination of Securities and Exchange Commissioner Jay Clayton for the position is essentially “dead on arrival,” according to DOJ Attorneys.

“According to Attorney General [William] Barr, the Trump Administration intends to nominate Mr. Jay Clayton to be U.S. Attorney for the Southern District of New York,” Graham said in a statement Saturday.

“I have not been contacted by the administration in this regard. However, I know Mr. Clayton and believe him to be a fine man and accomplished lawyer. As to processing U.S. Attorney nominations, it has always been the policy of the Judiciary Committee to receive blue slips from the home state senators before proceeding to the nomination. As chairman, I have honored that policy and will continue to do so.”

U.S. Attorney Berman found himself at the center of an uncanny controversy Friday evening when AG Barr announced that Berman was “stepping down” from leading the SDNY, an office that has overseen the prosecutions of several of President Trump’s personal and political allies.

The state’s senior senator, Minority Leader Chuck Schumer, on Saturday already signaled that he would not be on board with Clayton’s nomination, calling on the SEC commissioner to withdraw his name from consideration to prevent destroying his legacy.

“Forty seven years ago, Elliott Richardson had the courage to say no to a gross abuse of presidential power. Jay Clayton has a similar choice today: He can allow himself to be used in the brazen Trump-Barr scheme to interfere in investigations by the U.S. Attorney for the Southern District of New York, or he can stand up to this corruption, withdraw his name from consideration, and save his own reputation from overnight ruin,” Schumer said Saturday.

Former U.S. Attorney for SDNY Preet Bharara said Graham essentially declared an end to Clayton’s nomination.

“Given Senator Schumer’s call for Jay Clayton to withdraw from SDNY consideration, this announcement by Senator Graham means Clayton’s nomination is dead on arrival,” he wrote.

Sasha Samberg-Champion, a former attorney for the DOJ’s civil rights division expressed the same sentiment, calling the statement “another way of saying Jay Clayton will not be confirmed by the Senate to lead SDNY.”

Eric Columbus, who served as senior counsel to the deputy attorney general in the Obama administration, echoed a similar conclusion.

New York’s other senator, Kirsten Gillibrand, is also a Democrat. She had not tweeted about the issue as of Sunday afternoon but has vocally opposed Trump nominees in the past.

(Photo by Alex Wroblewski/Getty Images)

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.