The United States District Court for the Southern District of New York (SDNY) tries cases that originate in New York’s financial centers, but also covers high-profile cases that have national and international resonance. Over two hundred lawyers and equally as many support staff work to administer law enforcement oversight to eight New York counties. Its resources, reach, and independence have earned it the nickname “The Sovereign Court” among members of the legal profession. SDNY attracts capable and driven prosecutors not distracted by limelight.
James Comey was once Chief Prosecutor of the SDNY for two years (2002-03) before he became Deputy Attorney General of the U.S. At the start of Donald Trump’s presidency, Preet Bharara was Chief Prosecutor of SDNY. He had taken on the role in 2009, nominated by then-President Obama, and developed a reputation as hard-charging.
Bharara was asked to resign his role by Jeff Sessions who had been appointed by the new President Donald Trump to head the Justice Department. Bharara refused. He was subsequently fired, leaving SDNY in March 2017, months into the Trump presidency. New York was Trump’s stomping ground, and the Southern District was the court most likely to prosecute crimes DJT committed, if any, before his ascension to the presidency.
Like anyone leading a group of intensely-committed, capable lawyers holding the powerful to account, Bharara had to develop a set of priorities and criterion which could direct his team to choose from among bad behaviors, determining the prosecutable. Every kind of crime has been tried in SDNY, from crimes of treason, terrorism, mob and gang violence to massive fraud and murder. Bharara reflects that “anybody can be guilty of anything.”
Divided into four sections, Bharara’s book examines first how successful prosecutors select their cases and prepare the evidence they will use in court. Certainly one consideration was whether a case was winnable or not but Comey, in his time as Chief Prosecutor for SDNY, argued that wasn’t the most important criterion: “If it’s a good case and the evidence supports it, you must bring it,” he said, even at the expense of possibly losing the case and adversely affecting one’s reputation and the reputation of the court.
Jesse Eisinger, now a reporter for ProPublica, reported extensively on high-profile cases in his book about the SDNY published in 2017 called The Chickenshit Club. He did not give the credit to Preet Bharara, who he saw as going after “easy” cases featuring insider trading rather than the rampant fraud and financial misconduct that nearly caused the world’s economy to melt down in 2007-08.
Bharara doesn’t address Eisinger’s criticisms directly but suggests getting the job done includes building cases that have the best possibility of success, and showing the public the judiciary is working on their behalf. It is hard to argue that Bharara wasn’t tough on crime. While he may not have secured convictions for the worst abuses of the biggest players responsible for the financial crisis, his offices had 85 straight convictions of insider-trading cases before losing one in 2014.
Bharara’s office also presided over a string of successes in prosecuting instances of cyber-crime, organized crime activity, art fraud, and instances of public corruption, among other things. Whether or not one thinks he was tough enough, his book is informative for what it tells us about our own justice system when it is performed in the biggest fishbowl in the land.
After first introducing the role of prosecutors and some of his cases, Bharara then moves to being effective in a court of law: looking at the importance of preparing the case as though you were arguing for the defendant, judging the judges, reading the court, and expecting unpredictable outcomes and verdicts. “Justice is not preordained.” How badly you want to win the case is often the most important ingredient in winning a case, pushing a prosecutor’s risk-aversion to the dangerous range.
Bharara reads the audio of the book himself, allowing him to tell the stories and place emphases where he wishes. The stories highlight what he was working for: providing a measure of justice to the powerless. Bharara’s job in the judiciary is a very important one in our three-legged system of government and he had a very long, uninterrupted run of it. His predecessors’ tenures could be measured in months. His observations are intrinsically interesting.
Bharara mentioned the importance of his family several times in the book, and knowing the all-encompassing nature of his job, one expects he missed many important family moments. He recounts a scene in which he proudly presents a laudatory article about himself and his work to his teenaged daughter to read. He waited impatiently while she carefully read and then slowly reread portions of the piece. Eventually she responded to his “Well?” with “You’re such a drama queen, Daddy.” Which may be the most succinct capture of a personality we are likely to enjoy.
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