This couldn’t be the way Jay Clayton wanted things to play out.
For someone in a position of power like Chairman of the Securities and Exchange Commission to largely stay out of the spotlight in today’s politically charged Washington, D.C. is not an accident. It’s a calculated strategy, one Clayton has been able to pull off despite three years in a high-profile position under the Trump administration.
That came crashing down Friday night, when Attorney General William Barr announced President Trump intended to nominate Clayton to serve as the next U.S. Attorney for the Southern District of New York (SDNY). The press release kicked off a political firestorm: In it, Barr revealed Geoffrey Berman was stepping down from the role Clayton was being nominated to, which was apparently news to Berman. He defied the announcement and said he would remain in his position, but Barr made everything moot when he told Berman on Saturday that President Trump had fired him.
Clayton’s days out of the limelight are over. Reports have indicated he sought the SDNY job as an ideal way for him to move back to New York, but he couldn’t have wanted to land the role like this. According to multiple outlets, Clayton is believed to have not known Berman was unwilling to step down, nor would he be the type to stir that kind of controversy. But like it or not, the 53-year-old is now a cog in a Trump political machine that has been steamrolling the rule of law in the United States for the better part of the last year.
Clayton doesn’t win in this scenario. In fact, he may not win in any scenario that unfolds from here. His name has become politicized, and as such, his future could very well play out in one of three ways:
- Door No. 1: Clayton is successfully appointed to Berman’s post. He is the first non-prosecutor to lead the SDNY, as some reports have noted. However, his tenure at the SDNY are overshadowed by the story behind his appointment. He fails to gain the support of his legal peers in New York, as the New York State Bar Association condemned the ouster of Berman and what it represented.
- Door No. 2: Clayton’s nomination peters out in Congress. As Sen. Lindsey Graham (R-S.C.), chairman of the Senate Judiciary Committee, has indicated, the Senate defers to its two members from New York to show their support for the nominee, a process known as blue-slipping. Tough break for Clayton, as Democratic New York Sens. Chuck Schumer and Kirsten Gillibrand have each already issued statements calling on Clayton to withdraw his nomination. “[Clayton] 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, the minority leader in the Senate, said Saturday. Clayton’s nomination languishes.
- Door No. 3: Clayton heeds the advice of Schumer and Gillibrand and withdraws his name from consideration. He returns to the SEC, though not without criticism for backing down, which is frowned upon in the face of political pressure by the Republican Party these days. Clayton serves out the remainder of his term as SEC chair, though his name is still mentioned as part of the Berman scandal, which isn’t likely to go away in the lead up to the 2020 election.
Clayton, who has yet to publicly address his nomination as of Monday afternoon, likely knows however his story plays out from here will not be the first choice he had in mind. Such is the cost of being a cog in the Trump machine: It rarely results in a win for anyone but Trump.