Fired SDNY prosecutor refused to sign letter warning Mayor de Blasio about protest and religious ‘double standard’

The now-fired U.S. attorney for the Southern District of New York declined to sign a Justice Department letter criticizing New York City’s mayor for a dichotomy in how he enforced coronavirus social distancing guidelines for protests and religious gatherings.

The letter, addressed to Mayor Bill de Blasio and authored by Assistant Attorney General Eric Dreiband of the Civil Rights Division, became a sticking point for former U.S. Attorney Geoffrey Berman, who refused to sign it. However, a Justice Department official told the Washington Examiner that this is not why he was removed from his position.

Berman made clear his “strong objections” to the letter, specifically its assertions that de Blasio “imposed a double standard,” according to sources cited by the Wall Street Journal on Monday. The news outlet said the prosecutor also called it a “political stunt” that would strain relations between the prosecutor’s office and City Hall, and the Wall Street Journal’s sources claimed that the letter “was never sent.” The outlet said, “it isn’t known what role, if any, the letter played” in the standoff between Berman and Barr but claimed the New York prosecutor’s refusal “aggravated” the attorney general.

A DOJ official pushed back on much of the Wall Street Journal’s reporting, confirming with the Washington Examiner that Berman had indeed refused to sign the letter, but saying Barr wasn’t aware of Berman’s refusal when the attorney general made the announcement that the New York prosecutor would be stepping down and that it hadn’t factored into Berman’s firing. The DOJ official also said that, contrary to what the Wall Street Journal’s sources claimed, the letter was sent to de Blasio on Friday but without Berman’s signature.

The three-page letter from Dreiband raises concerns about de Blasio encouraging and even marching in protests while harshly cracking down on religious services and communities, especially the Orthodox Jewish community in New York City.

“We write regarding the recent demonstrations in New York City and raise several civil rights concerns,” Dreiband wrote. “Your recent statements and actions have raised substantial concerns about New York City’s commitment to evenhanded application of robust First Amendment protections. As New York City prepares to enter ‘Phase 2’ of New York’s reopening plan, we ask that you to take these concerns into consideration while the City continues to return to normal.”

Attorney General William Barr announced on Saturday that President Trump had removed Berman following a standoff. On Friday night, Barr said Berman was stepping down from the key perch after two-and-a-half years of service in the Trump administration. But within a couple of hours, Berman released a statement of his own and denied that he was going anywhere. Trump fired him the next day.

Barr revealed Trump intends to nominate Jay Clayton, the chairman of the Securities and Exchange Commission, to take Berman’s place. Barr initially picked Craig Carpenito, the U.S. attorney for the District of New Jersey, to take over SDNY in an interim capacity, but said Saturday that Audrey Strauss, the deputy U.S. attorney under Berman, would become the acting U.S. attorney until Berman’s successor is confirmed. Democratic House Judiciary Chairman Jerry Nadler invited Berman to testify about his firing.

Dreiband emphasized in his letter to de Blasio that “like the people of New York City, and all across our country, we are deeply troubled by the death of George Floyd.” He noted that de Blasio “allowed thousands of New Yorkers to exercise peacefully their First Amendment rights” during the protests following Floyd’s death in police custody, and added that mayor “personally participated in these protests.”

Floyd, a 46-year-old unarmed black man, died in police custody on May 25 after a white Minneapolis police officer, Derek Chauvin, pinned him down by placing a knee on the back of his neck for nearly nine minutes. Footage of the incident set off a wave of outrage, leading to protests in major cities across the nation, some of which became violent as protesters rioted, looted stores, burned buildings, and clashed with police. Chauvin now faces charges of second-degree murder and second-degree manslaughter. The three other officers who were involved in detaining Floyd, who was suspected of using a fake $20 bill, were also fired and charged with aiding and abetting murder.

Dreiband told de Blasio that “your support for peaceful assembly and speech follows the best of our Nation’s traditions” but stressed that “the First Amendment also protects the free exercise of religion.”

The DOJ civil rights official has repeatedly warned cities and states that protesters and churchgoers must be treated equally. Barr posited a similar question during an interview earlier this month. “Why should some people who are enjoying their First Amendment rights by going out and protesting have broader rights than other people who may want to exercise, for example, their religious First Amendment rights and go to church, as long as social distancing rules and things like that are complied with?” he said.

“The First Amendment protects religious observers against unequal treatment. Government may not discriminate against religious gatherings compared to other nonreligious gatherings that have the same effect on the government’s public health interest, absent compelling reasons,” Dreiband wrote to the New York City mayor, adding, “Media reports and public accounts have described your vigorous enforcement of these restrictions on religious gatherings in New York City. During the period in which all gatherings were banned, you reportedly sent police officers to break up numerous gatherings of the Jewish community in New York, including reported outdoor gatherings for funerals.”

Dreiband told de Blasio that “the message to the public from New York City’s government appears to favor certain secular gatherings and disfavor religious gatherings” and “the Department of Justice respectfully encourages you to reconsider your posture toward religious gatherings.”

There have been more than 9 million reported cases of COVID-19 around the world since the start of the pandemic, along with 471,000 deaths worldwide as of Monday night. The U.S. Intelligence Community believes that China has deceived the world about its infection rate and death rate. In the U.S., there have been more than 2.3 million infections and at least 120,000 deaths attributed to the coronavirus, according to the Johns Hopkins University tracker.

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