The United States attorney in Manhattan, Preet Bharara, is currently the subject of a good deal of adulation in New York-based news media, both local and national. He is very quotable, and it seems as if reporters don't have much trouble finding out about his pending investigations even if the law requires investigators to keep them secret. He is putting away one corrupt politician after another, capped in the past two weeks by the sentencing of the former speaker of the New York State Assembly, Democrat Sheldon Silver (12 years) and the former majority leader of the State Senate, Republican Dean Skelos (5 years, less than half of what Bharara wanted). And if the leaks being published here and there are accurate, he is hot on the trail of Mayor Bill de Blasio for alleged fundraising violations and working his way into Gov. Andrew Cuomo's inner circle, too.
There is an unfortunate tendency in journalism to treat prosecutors uncritically, and no matter how many times prosecutors foul up in horrendous ways, that never seems to change. They're treated as if they've ridden in on a white horse. I probably did the same for a time when I was a newspaper reporter covering courts, crime and politics. It's satisfying to see the mighty fall if they deserve it. But prosecutors are mighty, too, and their power tends to go unquestioned.
Jeffrey Toobin provides a more balanced look at Bharara in his New Yorker piece "The Showman," which focuses on Bharara's penchant for publicity. Bharara is one of those prosecutors willing to try out novel uses of the law to make a high-profile case. But that quality seemed to desert him when it came to prosecuting the Wall Street executives at the companies responsible for the 2008 financial collapse. As Toobin writes:
Before Bharara became known as the scourge of insider trading—a 2012 Time cover story called him the “top cop” of Wall Street—he gained attention for the cases he did not bring against the financial industry. He took office in 2009, at the height of the mortgage crisis, and the Southern District, along with the Justice Department, in Washington, conducted investigations of the major firms and individuals involved in the financial collapse. No leading executive was prosecuted. Bernie Sanders, the Presidential candidate, says in his stump speech, “It is an outrage that not one major Wall Street executive has gone to jail for causing the near-collapse of the economy. The failure to prosecute the crooks on Wall Street for their illegal and reckless behavior is a clear indictment of our broken criminal-justice system.”
In a conversation in his office, Bharara rejected the critique. Without going into specifics, he said that his team had looked at Wall Street executives and found no evidence of criminal behavior. “It shouldn’t come as a surprise to anyone that the things that we had either been assigned before I got here or had the initiative to look at were looked at really, really carefully and really, really hard by the best people in the office,” he said. “There’s a natural frustration, given how bad the consequences were for the country, that more people didn’t go to prison for it, because it’s clearly true that when you see a bad thing happen, like you see a building go up in flames, you have to wonder if there’s arson. You have to wonder if there’s anybody prosecuting. Now, sometimes it’s not arson, it’s an accident. Sometimes it is arson, and you can’t prove it.”
Eric Holder, who, as Attorney General, was Bharara’s boss for six years, made a similar point. “Do you honestly think that Preet Bharara and all those hotshots in the U.S. Attorney’s office would not have made those cases if they could?” he said. “Those are career-making cases. Those cases are your ticket. The fight would have been over who got to try them. We just didn’t have the evidence.”
Count me among those who don't buy that. There was no material misrepresentation of the finances at Lehman Brothers and other firms? There was no provable fraud involved in peddling securities based on obviously fraudulent mortgages? Such a case would involve taking on the titans of Wall Street and the lawyers who provided them with cover through friendly legal opinions. Bharara got his job through a great supporter and beneficiary of Wall Street, Senator Charles Schumer, whom he worked for in the Senate. He made no cases.
Instead, Bharara capitalized on the anti-Wall Street atmosphere by making many highly publicized insider trading cases -- "career-making cases" also, to borrow Holder's phrase. But those cases are marginal compared to what Bharara could have gone after.
Toobin does a good job of rather politely portraying Bharara as a publicity hound. He doesn't draw the comparison, but it reminds me a lot of what I observed as a reporter covering Rudy Giuliani as U.S. attorney in the 1980s. Much as happened under Giuliani, the judges are beginning to take note and to scrutinize Bharara's methods more closely.
We need aggressive prosecutors, but there is a great risk in giving people so powerful a free ride on that white horse.