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The Little Noticed Jay Clayton Pick at SDNY

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Amid the Star Wars bar menagerie of Trump Administration picks, that of Jay Clayton to be US Attorney for SDNY has gone little noticed.

But it was among the earliest picks Trump announced, on November 14, like that of Mike Huckabee to be Ambassador to Israel on November 12, weirdly early, bespeaking an unusual set of priorities.

Here’s how NYT — reporters who know the Sovereign District well — covered the Clayton pick.

President-elect Donald J. Trump on Thursday said he would pick Jay Clayton, the top Wall Street enforcer in the first Trump administration, as the head federal prosecutor for the Southern District of New York, a critical post for an incoming president who has vowed revenge on those who pursued him in the courts.

Mr. Trump made the announcement on his social media platform Truth Social, where he called Mr. Clayton “a highly respected business leader, counsel and public servant.” Mr. Clayton still must be confirmed by the Senate.

The office of U.S. attorney for the Southern District of New York is considered one of the most prestigious federal prosecutor’s offices in the nation. It holds sway over some of America’s most powerful businesses and financial institutions, and it has aggressively targeted politicians accused of corruption.

[snip]

Mr. Clayton is not a former prosecutor — often seen as a prerequisite to being named as a Southern District U.S. attorney — but he has long wanted the Manhattan post, said Steven Peikin, a lawyer at Sullivan & Cromwell who served as his co-director of enforcement at the S.E.C.

In fact, toward the end of his tenure at the S.E.C., Mr. Clayton nearly got the job when he emerged as a potential candidate to replace Geoffrey S. Berman, a Trump-appointee who then held the post.

In a surprise move, the attorney general at the time, William P. Barr, announced in June 2020 that Mr. Berman had resigned as U.S. attorney for the Southern District and Mr. Clayton would replace him. But Mr. Berman denied he had stepped down. He was then fired by President Trump, an action he did not contest after he was assured his deputy, Audrey Strauss, would lead the office.

The affair was worrisome to some Justice Department officials because at the time Mr. Berman’s office was handling cases involving people close to Mr. Trump. The episode raised concerns about possible political interference in criminal investigations.

Mr. Berman, in a statement to The New York Times on Thursday evening, said of Mr. Clayton, “Jay is an exceptional lawyer and will be an excellent United States attorney.”

Clayton is a grownup, though not a prosecutor. But Trump attempted to install him once before as a way to oust the incumbent US Attorney and — it is widely understood — in an attempt to thwart ongoing investigations into Trump’s people.

Even in spite of their expertise, I don’t see a NYT story on what happened next.

First, on November 18, Merrick Garland visited SDNY to encourage AUSAs there to continue on: “You will continue in the Department’s mission, what has always been its mission: to uphold the rule of law, to keep our country safe, and to protect civil rights.”

Then on Monday, the current US Attorney for SDNY, Damian Williams, announced he would resign on December 13, leaving his Deputy, Edward Kim, in charge.

Damian Williams, the United States Attorney for the Southern District of New York, who has served as the chief federal law enforcement officer in the district, announced today his intention to resign his position as United States Attorney, effective 11:59 p.m. on December 13, 2024. Edward Y. Kim, who currently serves as Deputy United States Attorney, will become the Acting United States Attorney upon his departure.

U.S. Attorney Damian Williams said: “Today is a bittersweet day for me, as I announce my resignation as United States Attorney for the Southern District of New York. It is bitter in the sense that I am leaving my dream job, leading an institution I love that is filled with the finest public servants in the world. It is sweet in that I am confident I am leaving at a time when the Office is functioning at an incredibly high level – upholding and exceeding its already high standard of excellence, integrity, and independence. That success is due to the career attorneys, staff members, and law enforcement agents of this Office. Working with them during my tenure has been a privilege of a lifetime. They are worthy custodians of this Office’s tradition of doing the right thing, the right way, for the right reasons. They are patriots. They are my family. And I will miss them dearly.

In spite of NYT’s apparent reticence (or, perhaps, ongoing reporting), it was big news: WaPo’s coverage noted Williams’ close ties to Garland and Bill Barr’s past effort, described by NYT, to install Clayton as a means to oust Williams.

NYPost’s coverage instead focused on the boon this may present for Eric Adams’ case, even while noting that prosecutors plan to supersede the indictment and have a December 20 status hearing scheduled. By the end of NYPost’s story, they had moderated their headline claim that Williams’ move, will “make way for Trump’s replacement.” As they acknowledged, Williams’ resignation doesn’t make way for Clayton, at least not before he is confirmed; it makes way for Kim as the interim Acting US Attorney.

Clayton’s appointment still requires confirmation by the US Senate.

Until then, Williams’ deputy, Edward Y. Kim, is set to take over as acting US Attorney when he steps down.

We’ll see how all this plays out, as we saw how it played out in June 2020, when Barr tried to remove Geoffrey Berman before SDNY took action in August 2020 against Steve Bannon and his co-conspirators and tried to advance the investigation into Rudy Giuliani, only to have Berman lawyer up and invoke succession rules to ensure that his Deputy Audrey Strauss would continue. Unless SDNY judges take action to protect Kim, I think Trump can just replace him with another Acting US Attorney on January 20, though I’m not an SDNY lawyer and they have ways of working the law.

In any case, by announcing the Clayton pick so early, Trump ensures that incoming SJC Republicans can prioritize his confirmation — and since he’s a much higher caliber pick than Trump’s other picks — it could go quickly.

But it’s likely not Adams’ prosecution (much less Diddy’s, which NYPost also invoked) that Trump’s early pick of Clayton was an attempt to redirect. For a variety of reasons, I expect Trump will include Adams in the pardon-palooza that will kick off his Administration.

Indeed, I can’t help but notice that Trump announced this pick one day after the FBI seized the devices of Polymarket CEO Shayne Coplan on November 13.

The FBI seized a cellphone and other electronic devices of betting site Polymarket’s CEO, Shayne Coplan, in a raid on his New York City apartment early Wednesday, according to a source familiar with the matter.

The company’s markets wagered correctly and controversially in Donald Trump’s favor in bets on who would win the presidential election, even though opinion polls showed a tight race.

Coplan, 26, was home when numerous agents entered his apartment Wednesday and he turned over his devices to authorities, the source said, adding that he has not been arrested or charged. The source said it is not clear whether Coplan or Polymarket are targets of an investigation.

“New phone, who dis?” Coplan posted on X after the raid.

Polymarket, which Coplan founded in 2020, has recently been the subject of intense debate and scrutiny over its creation of election betting markets. It brought in more than $3.6 billion from bets placed on the presidential election, including $1.5 billion on Trump and $1 billion on Vice President Kamala Harris, according to an NBC News analysis.

Speculation has swirled around the identities of major bettors who wagered on Trump and whether or not the odds and the existence of the markets could have had an effect on voters.

Though U.S. election betting is newly legal in some circumstances, Polymarket is not supposed to allow U.S. users after the Commodity Futures Trading Commission halted its operations in 2022, but its user base largely operates through cryptocurrency, which allows for easy anonymity.

There are other investigations that Trump might be trying to interrupt with this quick appointment. But the Polymarket investigation — in which FBI got a probable cause warrant targeting someone who helped Trump’s campaign within days of the election — is likely one of them.

Once before, Trump tried to install Jay Clayton at SDNY to block investigations into his people. This time around, Trump will have to find a different path than just firing the incumbent US Attorney. Because he already quit.

The Upcoming Pardon-Palooza

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Just about everyone has a story out about how Trump’s win will make most of his legal trouble go away (see Brandi Buchman, Politico, NYT).

I don’t disagree with any of this analysis. His federal cases will end shortly after January 20 (though DOJ may want to pursue the 11th Circuit Appeal to sustain the viability of Special Counsels).

But I don’t know how they will go away. After all, Jack Smith could indict everyone, so as to tell the fuller story of what Trump did. If Democrats manage to take the House, he could hand off his grand jury material between January 3 and January 20. For all we know, he’s got sealed indictments hidden somewhere, obtained during the pre-election quiet period. Or he could write a final report.

Which is why I’m more interested in the other immediate legal question: Whom he pardons as soon as he returns to office.

By pardoning the January 6 defendants who are either in prison or awaiting trial, surely including seditionists like Enrique Tarrio and Stewart Rhodes, Trump would create an army of loyal Brown Shirts ready to do his bidding again. These guys only believe in Backing the Blue if it doesn’t interfere with a coup attempt.

If Rudy Giuliani gets held in contempt for dicking around with the Ruby Freeman payments, Trump can simply pardon him out of prison again.Poof!

I expect that Trump will pardon Alexander Smirnov, who allegedly attempted to criminally frame Joe Biden in circumstances that Trump likely would like to keep quiet (not like it matters anyway because the press never showed any curiosity about how that happened).

And Trump has an incentive to pardon other corrupt grifters. I would be unsurprised if he pardoned Robert Menendez and Henry Cuellar — and the latter might have an incentive to switch parties if he were pardoned out of his trouble.

I would be shocked if Trump didn’t pardon Eric Adams, which would create an ally in New York City who controls a mob of corrupt cops and former cops.

All that said, Trump can’t pardon his co-conspirators out of their state cases (Fani Willis won reelection in Fulton County). He can’t pardon Steve Bannon out of his upcoming NY trial … though I am certain that they are plotting on a way for Bannon to avoid it.

In Trump’s first term, he pardoned his way out of his Russian trouble. He paid no price for it. It barely came up in the campaign … journalists were too busy talking about Joe Biden’s stutter.

Trump’s own impunity will do grave damage to the rule of law, however it happens.

But these pardons will turn it into a transactional form of loyalty test.

Update: I should add that Mike Davis, who will play a key role in Trump’s Administration (including, possibly, Attorney General if he could be confirmed), already taunted Jack Smith to lawyer up.

Update: Trump is also likely to pardon the guys who were prosecuted for insider trading on Truth Social.

Update: Other candidates for pardons might include Ghislaine Maxwell and Diddy.

Update: Multiple outlets are reporting that Jack Smith will wind down his two prosecutions of Trump. It seems there are multiple options to do this — the most obvious being a public report and referrals of anything else, like Mueller did. But by announcing they’re doing this, they may pre-empt Trump making demands, just like they did in August.

Eric Adams Indicted

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In half an hour, Damian Williams will announce the indictment of Eric Adams on charges relating to funding from Turkey.

While the indictment is extensive — 49 pages of narrative — it appears to address just the Turkish side of the scheme, with five charges:

  • Conspiracy to commit wire fraud, bribery, and solicitation of foreign donation
  • Wire fraud
  • Foreign Donation
  • Foreign Donation
  • Bribery

The scheme started in 2015.

In 2015, ERIC ADAMS, the defendant, took two official trips to Turkey. His first trip, in August 2015, was arranged by the Turkish Consulate General in New York City (the “Turkish Consulate”) and paid for in part by the Turkish Consulate and in pa1t by a for-profit educational conglomerate based in Istanbul (the “Turkish University”). The second trip, in December 2015, was arranged by the Turkish Official and a Turkish entrepreneur (the “Promoter”) whose business includes organizing events to introduce Turkish corporations and businesspeople to politicians, celebrities, and others whose influence may benefit the corporations an businesspeople, For both trips, ADAMS received free business class tickets on the Turkish Airline. Unlike ADAMS ‘s subsequent travel with the Turkish Airline, ADAMS reported his 2015 travel to Turkey on financial disclosure forms filed with the New York City Conflict of Interest Board (the “COIB”), as he was required to do annually at all times relevant to this Indictment.

There’s no FARA component here, though it does describe Turkey demanding his help getting approval to open Turkish House.

On or about September 5, 2021, the Turkish Official began asking ADAMS, both directly and through the Adams Staffer, to intervene with the Commissioner of the FDNY (the “FDNY Commissioner”) in order to secure a TCO for the Turkish House. ADAMS, the Turkish Official, and the Adams Staffer discussed these requests through phone calls and electronic messages. In a phone call to the Adams Staffer, the Turkish Official stated that because Turkey had supported ADAMS, it was now “his tum” to support Turkey. The Adams Staffer relayed this message to ADAMS, and ADAMS responded, “I know.

One paragraph describes how, after they came for Adams’ phones last year, he changed his password and then “forgot it.”

On November 6, 2023, FBI agents executed a search warrant for the electronic devices used by ERIC ADAMS, the defendant. Although ADAMS was carrying several electronic devices, including two cellphones, he was not carrying his personal cellphone, which is the device he used to communicate about the conduct described in this indictment. When ADAMS produced his personal cellphone the next day in response to a subpoena, it was “locked,” such that the device required a password to open. ADAMS claimed that after he learned about the investigation into his conduct, he changed the password on November 5, 2024 [sic], and increased the complexity of his password from four digits to six. ADAMS had done this, he claimed, to prevent members of his staff from inadvertently or intentionally deleting the contents of his phone because, according to ADAMS, he wished to preserve the contents of his phone due to the investigation. But, ADAMS further claimed, he had forgotten the password he had just set, and thus was unable to provide the FBI with a password that would unlock the phone.

It’s not going to take the FBI very long to break a 6-digit password, you bozo.

I predict Williams will say this investigation is ongoing and the time for anyone with information to share “is now.”

Update: Williams: “This investigation continues, … and I encourage anyone with information to come forward and do so before it’s too late.”

Nailed it!!

Notably: when describing the danger of illegal donations, Williams built a hierarch: illegal, foreign, foreign power. The use of “foreign power” suggests he could add FARA or Foreign Agent charges pretty easily.