Late last week, President Trump and Attorney General Sessions somewhat belatedly fired the 46 Obama-appointed U.S. Attorneys who had not already resigned. Forty-five of the 46 promptly and appropriately submitted resignations. One did not -- and, of course, it was Preet Bharara of the Southern District of New York. Bharara ostentatiously refused. He was then fired over the weekend, whereupon he compared his dismissal to the shutting of a New York State anti-corruption panel a few years ago. Seems that Preet thought he was so important that the rules that allowed Presidents Clinton and Obama to fire all sitting U.S. Attorneys did not apply as to him and President Trump.
Needless to say, the New York press is filled with wailing and complaints about the firing of Bharara. (As far as I can tell, none of them ever uttered a peep about the actions of Clinton and Obama.) Even the New York Post, which should know better, expresses its regrets at Bharara's departure, in an editorial headlined "Thank You, Preet." Excerpt:
President Trump’s dismissal of Preet Bharara as New York’s US attorney leaves a giant hole here. . . . But this much is clear: New Yorkers will long be grateful for Bharara’s work — and its impact will be long felt.
Over at the New York Times, there is a long news article (not an editorial) headlined "A U.S. Attorney Who Shunned Politics Meets an End Tinged By Them." You can guess the theme from the headline: this was a guy who was the classic completely independent prosecutor, wholly above politics -- unlike those corrupt and mean and "highly politicized" Trumpians. A few snippets:
[A] theme that Mr. Bharara harped on throughout his tenure pursuing a host of public corruption, terrorism, civil rights and Wall Street cases [was that] [p]olitics and prosecution do not mix. . . . “One hallmark of justice is absolute independence, and that was my touchstone every day that I served,” Mr. Bharara said in a statement on Saturday.
Sure, Preet. So, as usual, it falls to the Manhattan Contrarian to present the dissenting voice. Here's my view: On a scale of 1 to 10, where 1 is "politicized, overreaching, and consumed with personal ambition" and 10 is "completely honest and independent," Eliot Spitzer was a 1 and Bharara about a 3.
Let's start with that nonsense about "absolute independence." Probably, Preet actually believes that that mantra applies to himself. And yes, he did prosecute politicians of both parties, including obtaining a conviction of long-time Democratic Speaker of the New York State Assembly, Sheldon Silver, to go with his seemingly comparable conviction of Republican Majority Leader of the New York State Senate, Dean Skelos. But if you look a little closer, the two were not comparable at all. Silver led an approximately two-to-one majority of Democrats over Republicans in the Assembly, so his conviction was irrelevant to political control of the chamber. Skelos, on the other hand, led a precarious majority of at most one or two seats (depending on the election cycle), was the single guy most responsible for maintaining that precarious majority, and himself held a competitive seat whose flipping had the potential of turning over control of the chamber all by itself. Getting rid of Skelos was the number one priority of all Democrats in New York.
And then there is the issue of the seriousness of the "crimes" -- or even, the question of whether the underlying conduct was even criminal. In an area where the statutes are notoriously vague, and prominent convictions are regularly reversed by the Second Circuit or Supreme Court on the grounds that the underlying conduct is not criminal (see coverage of Joe Bruno here and Bob McDonnell here), Silver's case was relatively clear cut. In the most notable example, Silver directed $500,000 from a legislative slush fund personally controlled by him to a research doctor at Columbia University; and in return, that doctor referred multiple asbestos injury cases to a law firm with which Silver was affiliated, leading to several million dollars of referral fees for Silver. In Skelos's case -- which is still on appeal -- it is not at all clear that the underlying conduct will stand up as criminal. Here is my account of the principal allegations from the Skelos indictment, from a post shortly after the indictment in May 2015:
This is all about Skelos allegedly trying to help his son Adam get some paying work. There is no allegation of any money improperly going to Skelos himself. The total amount of money alleged to have improperly changed hands seems relatively trivial -- $218,000 if I am counting correctly, and over a period of four years. Of the $218,000, almost all, $198,000, is from a consulting contract that Adam got with an unnamed and uncharged environmental technology company. Supposedly the company gave Adam the consulting gig because the dad got the company a $12 million contract with Nassau County. But wait a minute -- Skelos didn't have any position with Nassau County. The contract was subject to approval by the County Legislature, and got that. These legislators may well all be friends of Skelos (his State Senate seat is in Nassau County), but it can't possibly be that he controlled this decision in any real sense.
Also covered in the same May 2015 post was the complete lack of interest expressed by Bharara and his office in the fact that Chelsea Clinton had somehow landed an equally fake gig at NBC News that paid approximately triple the amount of money as Adam Skelos's job, and over a much shorter period of time. And also the complete lack of interest by Bharara and his office in the Clinton Foundation, which hauled in something like $2 billion, much of which while Hillary was Secretary of State. OK, the FBI did ultimately take that one up. But, if the question is, am I impressed by Bharara's "political independence," the answer is that I am not.
Then there was Bharara's improper use of criminal "insider trading" law to reach plenty of people who were not insiders at all, but whose conduct in making money in the trading game somehow offended Mr. Bharara's sense of propriety. Bharara's jihad was ultimately stopped by the Second Circuit in the case of Messrs. Newman and Chiasson, both of whom had to go all the way through trial and suffer a conviction before having what I thought was an obviously correct legal position vindicated on appeal. I covered that situation (among other places) in this post from August 2015. Bharara (and his cohorts at Justice) insisted on taking that one all the way to cert denied at the Supreme Court before giving up. In this post from December 2014 I called on Bharara to "do the right thing" after the Newman/Chiasson reversal by acknowledging that he had been wrong as to the law and agreeing to vacation of the convictions of many others who had pleaded guilty to the "non-insider insider trading." He didn't do it, and held on to the bitter end. Doing the right thing is not part of Preet Bharara's make-up.
And then we have Bharara's conduct of the phoniest of all phony prosecutions of all time, namely the criminal prosecution of J.P. Morgan for not uncovering the fraud of Bernie Madoff. Here are a few remarks that I made about that prosecution in a post in October 2013:
The central irony of this one, of course, is that the government itself, in the person of the SEC, had both better information and better access to information about Madoff than JPM or anyone else. The SEC had the right to inspect books and records. The SEC had subpoena power. The SEC actually sent people in to Madoff's offices no fewer than five times to conduct examinations or investigations. The SEC had a well-informed guy named Harry Markopolos writing it one letter after another setting forth in layman's terms why Madoff's operation was and had to be a Ponzi scheme. And compared to JPM or anyone else, it's actually the SEC's job, if they have any job, to figure out which operators are crooks and stop them.
How did that one end up? Nobody at the SEC was fired or even publicly criticized by their superiors. And J.P. Morgan? They paid about $2 billion for the supposed "crime" of not alerting the government to Madoff's suspicious activities. It was a settlement, of course. The big banks will never risk a trial. Bharara got a big press conference and his name in the papers for being the "sheriff of Wall Street," or something like that.
And how about the Reason Magazine subpoena? Here is Reason's own account of the matter, from a June 2015 article headlined "How Government Stifled Reason's Free Speech." This one arose out of a Reason article reporting on the sentencing of Ross Ulbricht after his conviction for allegedly running the Silk Road website. Several commenters on the article at the Reason site made anonymous remarks that were highly critical or even threatening as to the sentencing judge. Bharara's office served a subpoena on Reason to get the names of the commenters, and inserted into the subpoena language purportedly ordering Reason not to reveal or publicly discuss the existence of the subpoena or what it sought. That part of the subpoena was clearly illegal and unconstitutional. But hey, this was Bharara's office!
I could go on, but you get the picture. Everyone should be really glad to be rid of this guy. President Trump will be hard pressed to do worse in his replacement.