Taking on the system: Lawyer sounds a presidential note

Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law

Taking on the system: Lawyer sounds a presidential note

  • Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law
  • Preet Bharara
  • Bloomsbury, €28

He didn’t need it, but one day Preet Bharara got confirmation of just how much of an impact he was making in his job as a US state prosecutor. One of the subjects of his wiretaps mused — presumably in jest — that Preet Bharara might be listening in. It turns out he was.

Now 50, Bharara is one of America’s most high-profile legal minds, developing a reputation for swashbuckling prosecutions, not least on Wall Street. It led to a soaring profile, the front cover of Time magazine — and then he joined that expanding but nevertheless exclusive club of people fired, directly or indirectly, by US president Donald Trump.

To be fair, it doesn’t seem to have done him too much harm, though reading through his book, it’s clear that at times he longs for the cut and thrust of work as the US attorney for the southern district of New York. Doing Justice arrived with an accompanying press blurb blaring that he was “banned by Putin, fired by Trump, and now he’s free to talk”.

It makes it sound like he is embarking on a one-man revenge mission but Bharara is too measured for any of that, even if he does admit to — at times — being a bit gung ho.

His own story is a compelling one. Born in India, he came to America with his family aged two. He was in his early forties when he was made US attorney for the southern district of New York in 2009, serving in the role until his sacking in 2017 — fired after refusing to follow attorney general Jeff Sessions’s request for all remaining 46 US attorneys appointed during Barack Obama’s presidency to step down.

By then Bharara had made his mark, not least because he brought down the man responsible for the largest case of insider trading in American history.

No one can doubt Bharara’s fealty to the purity of the law and the honest pursuit of the truth, even if it means the end results can be unpalatable. In one part of the book he criticises confirmation bias and the dangers that come with it, while stressing the moral imperative to right a wrong or, indeed, to correct a flaw in an initial investigation. “In my experience, ‘duty’ is not a word spoken as often as it should be,” he says.

Bharara is not shy about calling out the sometimes heavy-handed tactics employed by the US and how they often don’t get results. One example is Abu Zubaydah, captured in the aftermath of the September 11, 2001, attacks and wrongly identified as al Qaeda top brass. In CIA custody he was waterboarded at least 83 times, among other indignities, although information he provided did help identify two other wanted men.

Bharara writes:

Sounds great, except for one thing. That information was obtained before Zubaydah’s torture, during rapport-building interrogations with FBI agents.

For Bharara, the carrot works far better than the stick.

What about those who ‘flip’, who will co-operate to save their own skins? It means a higher standard must be attained in putting the case together, to obviate the understandable credibility issues surrounding someone testifying against their former criminal colleagues.

“Truth has to be total”, he writes, not a piecemeal exercise. And it comes with some moral baggage — for example, just because someone involved in a crime is prepared to flip, do they get a lesser sentence than they deserve?

After debating how one murderer helped convict another murderer, Bharara writes:

Our system has decided it wants murderers to flip on other murderers, and as in all things you don’t expect people to give something for nothing. It is transactional. It is utilitarian. It is also justice.

Yet he’s also taken aback at the abnormal and cold-blooded flip of a man against his best friend and best man, who even went so far as to wear a wire to help land him.

There is the notion that the truth is above all other considerations, and that if it means no prosecution is brought because the case isn’t strong enough, so be it.

One of Bharara’s prosecutor colleagues is overheard saying he was worried Preet would be annoyed if the case isn’t brought, necessitating a meeting to ensure the team that doing the right thing was paramount.

It also means being able and willing to walk away from a case and utilising discretion to do so, such as with lower level criminals like drug users and fare jumpers.

It sounds like the reverse of the milieu depicted in classic TV shows such as The Wire, where it’s all about the stats and making sure they go the right way — crime down, collars up — although surely it must have also been a numbers game.

And as he explains, simply guessing that a prosecution might not be successful is not enough of a reason to not prosecute — the law must be seen to be making an effort in a situation where there is a strong belief in that person’s guilt.

The clamour for public comment, aligned with needing to maintain the probity of the office, can also place prosecutors in the public firing line.

In another echo of the current political landscape, Bharara writes about “a typical, if upsetting tactic” of people criticising the prosecutors’ motives, to allege bias and attack their good faith. “Do the words ‘witch hunt’ sound familiar?” he asks.

Into this argument, he recalls the remarkable occasion when his Twitter following soared thanks to Turkish followers because of a case brought against an Iranian gold trader linked to Turkish President Recep Tayyip Erdogan, and the time he was vilified in India because of a case brought against a hedge fund CEO.

Erdogan himself seemed to take the whole thing personally, essentially denouncing Bharara, who calmly states: “If you can’t take the heat, get out of the courtroom.”

One of Bharara’s more acute observations is contained in an overview of trial judges and the role they play and how, while they are “the kings of their courtroom”, once in the position their learning effectively ends. According to Bharara, they become “prisoners” of the same courtrooms. They no longer appear before other judges, their observational experience stalled.

An example is Judge TS Ellis III, who presided over the Paul Manafort case and “sparred with the advocates”, “belittled”, lost his temper, and mused aloud. He is ultimately hauled up for an error, proving the point that judges too are human, even if they need to be reminded of the fact occasionally.

And there is the inescapable Trump element, which Bharara does nothing to conceal. He was sacked on March 11, 2017, and the very first paragraph in the book outlines how his position was at first extended at the personal request of Trump, who then “abruptly” fired him.

Throughout there are direct and indirect references to what he sees as a battle for truth in an age of fake news and its progenitors.

Bharara writes that there is a “crisis of confidence in modern America, but it is not always in the failure of the law or the breakdown of the constitutional process”. Rather it is a system “marred by men and women who come to justice with a closed mind”.

And he says:

A crisis persists in public discourse and political debate. It is coarse and vicious and tone-deaf. Truth is a victim of self-interest and extreme tribalism, as well as decorum and respect.

About whom could he be writing?

The flipside of all this is the criminal trial — as Bharara puts it, a crucible of truth and civility and the powers of persuasion. Information is hidden from a jury in case it prejudices a case, personal views are sidelined, no advice is given.

The courtroom is governed by a strict set of rules and everyone signs up to them. Arguments are made on both sides and listened to. At every stage, jurors are advised to keep an open mind. The inherent fairness of it all is in its own way, quite beautiful.

Despite some overwriting here and there, this is a smart and penetrating book for anyone who wants to see the world as it is and the world as it could be and makes Bharara sound, well, a bit presidential.

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