Crime, Federal Government, S.D.N.Y., U.S. Attorneys Offices, Wall Street, White-Collar Crime

An Evening With Preet Bharara

Last week I attended an interesting talk by Preet Bharara, currently serving as the U.S. Attorney for the (extremely powerful and prestigious) Southern District of New York. I had heard great things about Bharara from many people, including current and former colleagues in the U.S. Attorney’s office and people who previously worked with him on Capitol Hill, where he served as chief counsel to Senator Chuck Schumer. So I was eager to hear his remarks, which he delivered to the New York Financial Writers Association, a group of business and finance journalists here in New York.

Here’s my report on what he had to say — including, for those of you who aspire to be assistant U.S. attorneys, what he expects from the prosecutors who work for him….

Bharara is a tall and elegant man. He wore the prosecutor’s uniform that night: dark suit, white shirt, red and grey striped tie.

In terms of demeanor, Bharara is formal and proper. He’s unlike my former boss in the New Jersey U.S. Attorney’s Office, Chris Christie, a far more folksy fellow. Bharara does not put you at ease — perhaps a good trait in a prosecutor. In his self-containment, Bharara reminded me of another prominent prosecutor, Patrick Fitzgerald. But with Fitzgerald, I had the sense that his private and public selves aren’t that different; with Bharara, I got the feeling that he has a robust sense of humor and a lot of opinions, but keeps them under wraps (at least in public appearances like this one), to preserve the dignity of his office.

Bharara began by talking about his brother, Vinnie Bharara, also a lawyer. Both Preet and Vinnie graduated from Columbia Law School, and both went to work at major law firms — Preet at Gibson Dunn and Vinnie at Cahill Gordon. They then moved on to smaller firms, before their paths diverged. Preet went to work as an assistant U.S. attorney in the Southern District of New York (the office he now leads, after his stint in D.C. with Senator Schumer). Meanwhile, Vinnie went on to become very, very rich, by founding a company that Amazon.com recently acquired for the whopping sum of $540 million. (You can get the full story from Peter Lattman at DealBook.)

Bharara has served as U.S. Attorney in Manhattan for just about two years. He oversees more than 230 AUSAs in the office. Although their financial-crime prosecutions generate a lot of headlines, thanks to colorful characters like Raj Rajaratnam and Danielle Chiesi, Bharara considers his office’s terrorism work to be just as, and perhaps more, important.

A position as an assistant U.S. attorney in the Southern District is one of the most prestigious appointments in the entire legal world. If you want to work as an AUSA in the S.D.N.Y., here is what Bharara expects from his prosecutors:

  • The wise exercise of judgment: Duh. The office is part of the Justice Department, and its mission is to do justice (which is not the same as indicting and convicting the maximum number of people possible).
  • Fearlessness: If the law and the facts are on their side, then AUSAs in the Southern District are not afraid of any adversary, no matter how rich or powerful. They are not afraid of tough cases, of criticism, or of losing.
  • Independence: There is some truth to the joking nickname of the “Sovereign District of New York.” The office prosecutes without regard to political whims or public pressure.
  • Toughness and fairness: S.D.N.Y. prosecutors are aggressive, but fair-minded. The office is very attentive to, for example, the collateral damage that prosecutions can inflict upon businesses and the lives of innocent people.

Indicting high-ranking executives at a corporation, for example, can sometimes jeopardize the entire enterprise’s existence — along with all the jobs provided by that business. At the same time, however, it might be the right thing to do, despite the adverse consequences for some innocent parties.

Bharara does not believe that any company is too big to prosecute. Cf. Too Big to Fail (affiliate link; Andrew Ross Sorkin’s bestselling and critically acclaimed book, now an HBO film). As Bharara put it, “There should never be a presumption of immunity based on size.”

Preet Bharara then identified two more realities of his office’s work that reporters who cover the S.D.N.Y. should keep in mind:

  • The pace and nature of complex investigations: The Galleon Group insider trading case took more than four years, from the start of the investigation to the jury verdict against Raj Rajaratnam. Some cases take a while because they are very complicated and the S.D.N.Y. is painstaking and thorough in its work. If you find yourself wondering why prosecution X hasn’t been brought yet, remember that the proof standard is “beyond a reasonable doubt.” (You can read more about this theme from Andrew Longstreth at Thomson Reuters.)
  • The secrecy of investigations: The office’s inability to comment on pending investigations can frustrate members of the press, but that’s how the office rolls. Grand jury proceedings must be kept secret, the defendant’s right to a fair trial must be preserved, and the effectiveness of an investigation must be protected. If defendants knew that prosecutors were coming for them, the defendants would take steps that would frustrate the investigation (such as destruction of evidence).

Bharara concluded his remarks on an optimistic note. Addressing the many young journalists in the room — his talk was preceded by the presentation of NYFWA scholarships to journalism students — Bharara observed that there is tremendous nobility to both law and journalism. Both professions care deeply about justice and truth, and both believe in the importance of tempering justice with fairness.

Today is a great time to be a journalist, Bharara said, noting that the job is just plain fun (an observation I heartily endorse). There are so many remarkable stories out there, just waiting to be told. It is important for journalists, like prosecutors, to think about the power they have — and to wield it responsibly.

Top Wall Street cop: complex fraud cases take time [Thomson Reuters News & Insight]
Too Big to Prosecute? Not in His Office, Says Preet Bharara [WSJ Law Blog]
Preet and Vinnie Bharara, Elite Brothers [DealBook / New York Times]

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