Preet Bharara is the former U.S. Attorney for the Southern District of New York (SDNY) — considered one of the most high-profile and respected public prosecutors’ offices in the country. Bharara was nominated by Barack Obama to head the SDNY office in 2009 and worked in this role, until 2017, when he was fired by Donald Trump. As U.S. Attorney, Bharara earned volumes of praise as well as criticism. He went after politicians on both sides of the aisle, diplomats, international money launderers, and prosecuted insider trading and hedge funds. He has been called ‘The Man who Terrifies Wall Street’ and ‘one of the nation’s most aggressive and outspoken prosecutors of public corruption and Wall Street crime.’
Among the things that currently occupy him, are a couple of podcasts and a teaching position at New York University. His new book, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment and The Rule of Law, was released a few weeks ago. Excerpts from an interview:
Why did you write this book and why now?
As I say in the book, I’ve been thinking for some time about a kind of guide for young prosecutors and how they might think about keeping an open mind, how they might think about gathering evidence, about doing the right thing and enforcing the law and doing justice. I thought some of the lessons and stories from my time as U.S. Attorney were interesting and relevant and helpful, not just to young prosecutors but to anyone. Because if you think about it, anyone with a family or a career has to, from time to time, judge other people, make enquiries of the facts, try to understand what the truth is. You know, balance intuition and gut against evidence and expertise… Everyone has to deal with hard decisions and so it’s a book about not just the law and certainly not just American law but about decision-making, moral reasoning and truth-telling.
You discuss two kinds of prosecutors, the gunslinging cowboy type with a foot always on the accelerator, and the other, the gun-shy prosecutor with a foot always tapping the brakes. Where did you start off on this scale and where had you ended up by the time Trump fired you in 2017?
Well, I hope that I was, like the vast majority of people I came across, one who knew when to use the accelerator and when to use the brakes, as any good driver does… You have to beware of people who fall into those extremes. Most of the time, people focus on the trigger-happy prosecutor. The one who’s always trying to bring charges and the one who’s galloping ahead and that’s true, you need to be careful of that. But mostly, I wanted to make the point that the opposite is also true, that if you have somebody who’s constitutionally not capable of making decisions or making an accusation, because it’s difficult or hard or because they’re always turning over other rocks to try to find more evidence even though they have sufficient evidence, that can cause a miscarriage of justice too, because so long as people who have committed crimes are not being held to account, then that works an injustice also… I hope and trust that I was not either one of those.
Your parents are from India. Did you have to escape the Indian ethos of that generation: ‘Thou shalt be a doctor or an engineer’?
My father is one of 13, my mother is one of seven. My dad grew up in a town called Ropar (Rupnagar) in Punjab. I was born in Firozpur. My mother’s family was from outside Delhi, from a town called Ghaziabad, and my dad made a decision. He was a very good student — first person in his family to go to college. He went to Amritsar medical college, became a doctor, which was the Indian dream as you describe, and yeah, so we came to the U.S. via the U.K. My brother was born three years after me, and obviously the Bharara family was hoping to have at least one, if not two more, doctors in that household and instead they got two lawyers.
You have been shocked by criticism in the India media, being called “the most hated man in India” by some, following the 2013 arrest of India’s Deputy Consul General in New York, Devyani Khobragade, who was charged with underpaying her domestic employee Sangeeta Richard.
Nobody likes criticism, and depending on your role in public life, you have to grow a thick skin. What was disappointing was that the criticism was, it was [laughs]… incorrect. There’s lots of basis for being criticised… I’ve made mistakes in court. I’ve gotten things wrong. I’ve misspoken. There are all sorts of things you do wrong and you accept that criticism and move on… but in the case of the insider trading incidents or the diplomat, we were just doing our jobs. The funny thing about it that continues to either, depending on the day, rankle me or tickle me, is that people don’t understand how these things work. It’s not like I got up at the head of an office with a $50 million budget with 450 employees and said, “You know, I hear there’s this diplomat, Devyani Khobragade. Could you please arrest her?”
Or Raj Rajaratnam, or Rajat Gupta or Samir Barai. Any of these people, I just had to investigate them. I did not prosecute them. I accepted the recommendations made by, by the way, mostly white Americans who were career people who made their recommendations and did them in a non-partisan way. Especially with respect to the diplomat’s case where lots of people came to the defence of Ms. Khobragade, which is fine, people can have a view. There’s nothing new about that, but the idea that it was done because of anti-Indian bias when the victim in the case was also Indian spoke volumes about the way certain people in the country of my birth view class and skin colour and economic status. The idea that Sangeeta Richard was forgotten and Devyani Khobragade was made into a heroine, although she blatantly committed a crime was kind of astonishing to me, and it remains astonishing to me.
There’s been this discussion even in The New York Times, for example, that you might have brought some showmanship into the job at SDNY. Is that a fair criticism?
No, I don’t think so. I’m very clear on that in the book, which people can read and judge for themselves. I thought it was an important responsibility to make clear that we were fighting against bad things, and when there were crises, we were doing our job and we were on the beat as cops are supposed to be, whether it was a drug crisis, the opioid crisis, public corruption, corporate corruption, gang violence, terrorism, you name it… I never said anything anywhere that was inappropriate, meaning outside of the content of the criminal charges that were publicly available, I never revealed grand jury information, and targeted my comments to the crises that were going on. So no, I don’t think I was a showboat.
Why is there is so much abuse and brutality in American prisons?
That’s a very complicated question, and I can’t speak for the entire system, but — as I relayed at great length in the book — in a chapter about a notorious jail in New York City called Rikers Island, there has come a time when there are excessive uses of force, of violence as a first resort rather than a last resort. And it happens for deep-seated psychological reasons. The very nature of incarceration, as I point out in a famous psychological experiment done by Philip Zimbardo at Stanford in the early 70s, can be a function of training, it can be a function of bad rules, it can be a function of lack of surveillance cameras, I mean, all sorts of things combine to create a terrible environment.
You say, “The law is an amazing tool, but it has its limits. Good people on the other hand don’t have limits. The law not in the business of forgiveness or redemption. The law cannot compel us to love each other or respect each other.” But just as the laws of most countries satisfy the human need for retribution or revenge at the moment, can we not move to systems that don’t pander to these emotions and instincts but are inspired by the better angels of human nature?
I hope so. I mean that’s how I end the book, with a story on forgiveness and redemption, but those are not necessarily judicial concepts, formal legal concepts, and part of the reason I wrote the book and the passage you describe and many other passages is because I certainly believe that having well-crafted laws, well-drafted statutes, is not sufficient. You can have that but if the people who are responsible for enforcing them, interpreting them, exercising discretion with respect to which of them they pursue and which they don’t, if you don’t have that, then you have injustice. So you need to have good, well-crafted, neutrally applicable laws, but also good non-biased, fair-minded people in the system. That’s the way I think we get to the aspiration that you described and have a law and a legal system that comports better with our better angels.
Moving on to current affairs: Some of [Special Counsel Robert] Mueller’s team have complained that Attorney General [William] Barr did not do justice to their conclusions in his summary of the special counsel investigation. Specifically, it appears that the investigation’s conclusions were more damaging to President Trump than Barr’s summary might suggest.
I don’t know what to credit, nobody’s on the record. Even these news stories don’t say that the Mueller investigators or team members went directly to the press. It’s one step removed. The reporting is that they told associates they feel a particular way. You know, maybe it’s just low-grade venting. Maybe they’re really upset. Maybe there will be opportunities for testimony down the line. Maybe someone will write a book, I don’t know. But I’m sure given what I know of the people who were on the Special Counsel team, that they all have strong personalities and they all are adults. And I’m sure, as you say, they made their points known within the office. Why they’re talking about it now? Unclear.
But remember, part of what they seem to be upset about are things that were outside of the control of the Special Counsel’s Office. They had no role, it’s been reported, in the nature and language of the summary that Bill Barr put forward. So you know, to the extent they think that the Bill Barr summary is distortion of what they had prepared in the report on obstruction, maybe their complaints are well placed.
Why did Mueller leave the obstruction of justice question unanswered and pass that on to Bill Barr?
So that’s the essential question of the time, right? I don’t know. It may be, and this is speculation only, that Bob Mueller said it was a close question: there’s evidence in favour of an obstruction crime, but there was also plausible defence to a conclusion of the crime. And in a situation where it’s very close, where the stakes are very high, where the case is very fraught and involves a sitting President of the U.S., and where there’s a mechanism in the American Constitution that someone other than a special prosecutor, namely the Congress, can make determinations about abuse of power by the President. That maybe that was the best thing to do, to leave it to Congress. That’s my best hypothesis.
Do you think the report should be released in its entirety? I mean some of Attorney Barr’s reasons for saying that portions of it will be redacted seem valid — like protecting the secret grand jury testimony, classified information and information on ongoing federal investigations.
In theory, some of these bases might be plausible. It depends on the circumstances, it depends on the particular facts. My concern is that given what the President says and how he’s attacked the investigation and how Barr seems to have a preconceived notion of the obstruction investigation, that these reasons are a pretext to paint a prettier picture of the President’s conduct than maybe is deserved, so I’m just concerned about it. I’m not one of those people who say that any suggestion of redaction is nonsensical. I’m saying that I’m concerned about the way in which people are talking about it. I’m concerned about the delay in time. I’m concerned about the rhetoric that has been used surrounding the report. I’m concerned about the gloss that is put on it with the President and others saying, “I’m totally exonerated,” when that does not appear to be the case. All of which leads a reasonable person to worry that there’s going to be more material hidden than needs to be, under the guise of legitimate reasons and considerations.
Do you support the Department of Justice practice that a sitting president may not be charged of a crime?
I have not publicly taken a view on whether I think it’s a good policy or a bad policy. I tend to think it’s not a good policy. In Israel, for example, they don’t have such a policy and Benjamin Netanyahu has faced the consequences of a lack of that policy. What I have said is that, given that it hasn’t been retracted or withdrawn, and it’s still the policy that binds people in the Justice Department, those who are expecting an indictment of Trump were mistaken. And it turns out that it was correct.
And you actually thought about recording any potential call that you’d have had with President Trump? [In the weeks after his inauguration.]
Smart people and thoughtful people consider every possibility, including extreme ones, before they reject them. And that was one that we thought about for a minute or two and said, “We shouldn’t.” But the basis for thinking about recording a phone call is because you have a concern that the person with whom the conversation would take place would lie about the contents of it later.
And it has been borne out that the President of the U.S. — in ways that have been much more clear since that time — lies. He lies daily. He lies about things that are said in private. He lies about things that he says publicly that are recorded by television cameras and audio recorders. So, a man like that, whether he’s the President of the U.S. or the King of England, is someone that reasonable and rational people might worry about the truthfulness of his later comments about a meeting or about a conversation. So, in that context, we thought about it and then decided, you know what, the better course is to just not have a conversation. So I didn’t.
Do you think you not returning that call [Trump’s call a few weeks after the inauguration in 2017] changed his mind about keeping you on in the job?
I have no idea. I mean it’s some coincidence that 22 hours later, I was asked to submit my resignation. They may be connected. Maybe it was in the works to have all former U.S. attorneys go anyway, and this was the trigger. Maybe it was unconnected. I have no idea, but I find it hard to believe, given his personality, given the nature of what he must’ve perceived as a snub, that they’re wholly unrelated.
Adam Schiff hit back at GOP congressmen seeking his resignation and said, “The day people think the dubious actions of the President and his team were acceptable is the day we will look back on and see as the day America lost its way.” Do you think that America has lost its way?
Well, he used a conditional. He said if certain things happen, America will have lost its way. And I don’t know if I would have used that phrase, but I think there are a lot of bad things going on and there’s a lot of undermining of the free press and a lot of undermining of independent law enforcement. I think there’s a lot of undermining of relationships with allies. There’s a lot of undermining of the basic precepts of what truth means and what justice should be and stoking of anti-immigrant fervour, and providing some comfort to white supremacists and not criticising them in the appropriate robust terms that you would expect a President to do. Yeah. So a lot of those things in combination, if they continue over time, would cause reasonable people to worry about America losing its way. Certainly.
Did you manage to take your humour to work and if so, how do you do that given the circumstances you’ve worked in?
That’s one of the myths of the place. It is serious work but the people are not so serious, they didn’t take themselves so seriously. They took the work very seriously. I laughed more in that place than I’ve laughed anywhere else. There’s lots of people with not only great wisdom and experience and intelligence and compassion, but also great humour, which is, I think, essential if you’re going to work in a pressure cooker like that, where every day you see the worst that humanity has to offer: murderers, rapists, terrorists, robbers, fraudsters who steal people’s life savings. I think you only survive in an environment like that if you keep your own humanity, your own perspective, your own sense of humour. The place was full of practical jokers. People pulled pranks on their colleagues all the time.
So, what’s next for Preet Bharara? Will he continue “doing justice” outside an attorney’s office?
Well, I’m finishing up a sort of afterlife of the book, which I’m gratified has been received so well. It made the New York Times bestseller list in the first week at No. 4. I have my teaching obligations at NYU Law School. I may write more things. I have two podcasts. I’m thinking about developing more things in reference to public education, civic-minded things. I work in a couple of task forces, one relating to promoting and shoring up the institutions of democracy in America. Another to suggest potential reforms to insider trading law and securities law. I have other such projects coming up. If in future, some public service opportunity presents itself, I would consider it. But right now I’m very happy.