The Deep Constitutional Thought Of Preet Bharara

Back in March, when President Trump finally fired Preet Bharara from the job of U.S. Attorney for the Southern District of New York, I took the occasion to write a post titled "Good Riddance To Preet Bharara."  The post outlined some of Bharara's worst abuses as U.S. Attorney -- from the non-insider insider trading jihad (ultimately ended when the Second Circuit ruled that much of the underlying conduct was not a crime), to the shakedown of J.P. Morgan for $2 billion for failing to uncover the fraud of Bernie Madoff, to the politicized prosecution of Dean Skelos, to the blatantly illegal gag order in the Reason Magazine subpoena.  

You would think this guy would just go away quietly.  But on Sunday he re-emerged on ABC's This Week with George Stephanopolous.  This time he was spouting his theories about how our federal government should work under the Constitution.  Here is the transcript.  There are also articles reporting on the event in the New York Times here, and the New York Post here.   

First, I'll give you the gist of Mr. Bharara's Deep Constitutional Thoughts:  The U.S. Attorneys and the FBI get to decide who is going to be prosecuted and for what, and the President damned well better not meddle in something that is none of his business.  And if the President does have the temerity to try to meddle, even a little, the U.S. Attorneys and FBI can and should turn on him and investigate him and prosecute him for obstruction of justice.

The New York Times puts it this way:  

Mr. Bharara said the contacts with Mr. Trump made him increasingly uncomfortable because they broke with longstanding Justice Department rules on communicating with the White House.

Got that?  The Justice Department and prosecutors, on their own authority and without the consent of the President, can make "rules" that say, in effect, we don't report to the President and we don't take orders from the President, and we'll prosecute whomever we damn well please, and we don't even have to talk to the President if we don't feel like it.  We, the hoity toity unelected bureaucrats, are entitled to tell the duly elected President -- holder of all of the executive power of the U.S. government under a crystal-clear provision of the Constitution -- to get lost.  Oh, and then to prosecute him for attempting to exercise his constitutional function.  Indeed, that's just how Mr. Bharara thought he was entitled to behave:

The final contact occurred March 9, a day before Mr. Bharara was among 46  asked to resign.  Mr. Trump was then president, so Mr. Bharara said he declined to return the call and reported it to the chief of staff of Attorney General Jeff Sessions. 

Here is a somewhat longer quote of Mr. Bharara's own words:

[Y]ou have uncontroverted from someone who was under oath that on at least one occasion, the president of the United States cleared a room of his vice president and his attorney general, and told his director of the FBI that he should essentially drop a case against his former national security adviser.

And whether or not that is impeachable or that's indictable, that's a very serious thing. . . . And there's a lot to be frightened about and a lot to be outraged about if you have a president who, A, may have done it, although I know he denies it, but he hasn't done it under oath yet. And, B, he seems to suggest that even if he had done it or said words to that effect, there's nothing wrong with that. . . .  

That's an incredibly serious thing if people think that the president of the United States can tell heads of law enforcement agencies, based on his own whim or his own personal preferences or friendships, that they should or should not pursue particular criminal cases against individuals.

That's not how America works.

Actually, it is how America works.  Has this guy even heard of the Constitution?  Does he know that the President is the sole constitutional executive officer of the United States and that all of the subordinate executive branch personnel -- including the Attorney General, all the prosecutors, the FBI, and the whole rest of the Justice Department -- work for the President?  Bharara was the most powerful of all U.S. Attorneys in the country for some seven and a half years, and claimed the authority under the Constitution to put hundreds of people in jail, and yet he seems to have absolutely no idea that the prosecutorial discretion function of the government belongs to the President and not to the director of the FBI or anybody else.  The combination of ignorance and arrogance is breathtaking.

I particularly like that business where Bharara is outraged at the President thinking he can tell the prosecutors what cases to pursue "based on his own whim or his own personal preferences or friendships."  And how exactly do you think U.S. Attorneys exercise the prosecutorial discretion function?  How did Preet Bharara do it?  Is he telling us that his "whim" or "personal preferences" or "friendships" had nothing to do with it?  Balderdash!  And why exactly does he think that his own "personal preferences" take precedence over those of the guy who was elected to the office of President?  Rank idiocy.

Here is my proposal for President Trump:  See if Alan Dershowitz is available to give a one hour long mandatory lecture on basic constitutional law to all lawyers in the Justice Department.  If Dershowitz is not available, I am, and I'd be happy to do it.  At the end of the lecture, give a short quiz to the participants.  The quiz could include a few simple questions like these:

• In which government official does the Constitution "vest" "the executive Power" of the United States?
• Does the President of the United States have the authority under the Constitution to exercise the prosecutorial function of the executive branch of the government?
• Do the Attorney General and the FBI Director work for the President?
• Can the President fire the Attorney General or the FBI Director at any time for any or no reason?
• Can the President, if he wants, personally exercise the prosecutorial discretion function of the U.S. government?

Anybody who gets any of these simple questions wrong promptly gets fired for cause due to basic incompetence.  That will be a good start on draining the swamp!