Justice

Doing Justice: An Evening With Preet Bharara At Cleary Gottlieb

Humor and insight from the U.S. attorney turned bestselling author.

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Preet Bharara (official portrait – public domain)

On Tuesday evening, I headed downtown to the offices of Cleary Gottlieb for An Evening With Preet Bharara, an event to celebrate the publication of the former U.S. attorney’s new book, Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law. The reception, cosponsored by Cleary Gottlieb and the Asian American Bar Association of New York (AABANY), featured Bharara in conversation with Cleary Gottlieb partner Joon Kim, who served as deputy U.S. attorney under Bharara and took over as acting U.S. attorney after Bharara left the Southern District of New York (S.D.N.Y.).

After introductory remarks from Cleary Gottlieb managing partner Michael Gerstenzang and Baker Hostetler partner Brian Song, president of AABANY, Kim and Bharara started their conversation in earnest. Kim praised Bharara as a “fearless but fair prosecutor” and said it was an honor to serve under him.

“And to take over after he got fired,” Kim joked. “That was even better.”

Kim noted that sitting down for a conversation with Bharara felt like the good old days back in the U.S. attorney’s office, when they’d kick back on a couch and shoot the breeze.

“And get paid for it,” Kim marveled.

“Not much,” quipped Bharara.

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“Hey, I got a Metrocard!” Kim said. “And sometimes I used it on the weekends – not sure that’s allowed….”

Throughout the evening, Bharara and Kim, clearly enjoying a very comfortable rapport, exchanged a good amount of similarly humorous and witty banter. Preet described the event as “one of the less successful iterations of the Harold and Kumar franchise: ‘Harold and Kumar Go to Cleary.’”

The line generated audience laughs, but Bharara used it to make a serious point. He noted that “Harold and Kumar” is how the two of them were referred to by a colleague with when they started off in the U.S. attorney’s office as line assistants in 2000. There were very few Asian Americans in the office at the time — or in public service more generally.

“They weren’t a lot of Asian Americans who risked pissing off their parents by not going to medical school,” Bharara said, “or by going to law school and then not spending their entire career in a white-shoe law firm.”

Turning to his substantive questions, Kim began by asking Bharara about his notorious – and notoriously confusing – firing by President Donald Trump. Bharara explained that after Trump got elected, he expected a period of orderly transition, followed by his departure as U.S. attorney. It’s standard for new presidents to install their own appointees as U.S. attorneys, and it’s unusual for a U.S. attorney to “hold over.” (Outgoing deputy attorney general Rod Rosenstein is a rare one who did; he was appointed U.S. attorney for Maryland by President George W. Bush, and President Barack Obama kept Rosenstein in office.)

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But then Bharara had his (also now-famous) meeting with President-elect Trump, during the transition. Senator Chuck Schumer had put in a good word for Bharara with Trump, which caused Trump to want to meet Bharara in person. When they did, on the 26th floor of Trump Tower – “there was a lot of gold,” Bharara recalled – Trump asked Bharara if he’d be willing to remain as U.S. attorney, and Bharara agreed.

Trump also asked Bharara for his phone number, which Bharara found… odd. And in the weeks after their in-person meeting, Trump would occasionally call Bharara, for random, non-substantive conversations.

Bharara mentioned these conversations to the head of the transition effort and to Joon Kim, since he found them… strange. But Bharara thought that “once he’s president and has the keys to the nuclear codes, he’ll be too busy to be calling me.”

That turned out not to be the case. On March 9, 2017, Bharara got another call from Trump, by this time President Trump. Bharara’s assistant took the message: please call back President Trump at the White House.

This raised concern in Bharara’s mind, given the protocols limiting direct presidential contact with federal prosecutors that are designed to protect the independence and integrity of law enforcement from political actors. Bharara discussed the matter with Kim, his deputy at the time, and they decided that Bharara should not speak with the president. Bharara then notified the Department of Justice and Trump’s assistant that he couldn’t speak with the president, citing the protocols. (Justice Department guidance provides that communications between the White House and the DOJ should proceed through certain specified channels, generally involving the office of the attorney general.)

So Bharara decided not to return Trump’s call — and he’s glad he made that choice.

“The Mueller report and other subsequent events have confirmed in my mind the correctness of my not returning Trump’s call,” he said, alluding to the president’s practice of trying to cultivate protectors of himself and his interests, in law enforcement and elsewhere.

The unreturned call happened on March 9, a Thursday. The following day, Bharara was asked, along with all the other U.S. attorneys appointed by President Obama, to resign — which Bharara found deeply confusing, in light of his meeting with Trump in November when Trump asked him to remain.

Bharara remained put. “I really liked my job,” he explained to Kim, “and I didn’t want to resign by accident.”

That Saturday, March 11, Bharara received a call from Dana Boente, the acting deputy attorney general at the time, who reiterated the request for Bharara’s resignation. Bharara continued to push back, basically saying, “I’m not trying to be a diva, but are you sure this applies to me? Boente told me, ‘All I know is, I was told everybody.'”

There was a bit more back and forth, but eventually it became clear that Bharara was being asked to resign. Or, as he tweeted out that Saturday morning:

And this was pretty much the end of the Trump focus of the conversation — which reflects the fact that Doing Justice, while it contains some discussion of Trump, is not a “Trump book.” Bharara pointed out that if you look at the index to the book, you’ll see more mentions of Joon Kim than Donald Trump.

“That’s not a recipe for selling books,” Kim quipped. (But let the record reflect that Doing Justice is in fact a bestseller, hitting the New York Times bestseller list upon its publication.)

So why didn’t Bharara write more of a Trump takedown, given the phenomenal success of Trump-related books, both pro and con?

“Trump casts this shadow that seems to affect everything,” Bharara said, “but a certain point, it can be too much. I wanted to take a step back and analyze broader concepts of truth, justice, and fairness.”

(Besides, Bharara noted, there are lots of other venues where he can comment on President Trump if he likes. See, e.g., his Twitter feed, where he has more than 1 million followers, or his podcast, Stay Tuned With Preet, which I recommend highly.)

Copies of Doing Justice by Preet Bharara at Cleary Gottlieb.

In terms of the genesis of Doing Justice, the idea of writing a book first came to him when he was U.S. attorney. He wanted to write a manual of sorts for lawyers in his office, focused on themes of justice and fairness — but then realized that such a book would be for everyone, not just attorneys.

“These issues appear everywhere,” Bharara said. “Say you’re a parent — how do you figure out which kid broke the lamp?”

The book overflows with sage counsel (see this prior post of mine for some earlier wisdom from Bharara), and the two had time to cover only a few brief points. The first and most prominent: don’t be afraid of asking “dumb” questions.

Asking questions is how we learn and understand something — and that understanding is far more important than looking smart. Bharara said that when he was U.S. attorney, he worried not about his lawyers’ intellect or work ethic, but about the problem of smart people not wanting to look stupid, and therefore not asking questions that might reveal their ignorance.

The types of brilliant young lawyers who get hired by the S.D.N.Y. make it to that office by demonstrating their intelligence, time and again. But once you’re in a prosecutor’s office, you confront lots of questions that you can’t simply look up in a book.

“As a supervisor in the U.S. attorney’s office, you shouldn’t worry about the people who constantly come into your office and ask a million questions,” he said. “You should worry about the person who came from — I’ll say Yale — who never comes into your office and never asks questions, even though they’ve been there for weeks.”

Giving the time of the event, the day before Attorney General Bill Barr’s highly anticipated Senate testimony about the Mueller report, Kim of course asked Bharara for some thoughts on special counsel Robert Mueller and his investigation — and whether not speaking more about his work was a mistake, allowing the narrative to be controlled by others.

“I don’t think it was a mistake under the circumstances, given the other talker,” Bharara said. “The President of the United States has the largest, loudest megaphone in the world.”

Bharara mentioned the example of Chief Justice John Roberts, who speaks almost entirely through his work — specifically, his written opinions as a justice of the Supreme Court — but who caused a stir last November when he declared, in an implicit rebuke of President Trump’s attacks on the judiciary, “We do not have Obama judges or Trump judges, Bush judges, or Clinton judges.”

“I thought that was extraordinary,” Bharara said, especially in light of Chief Justice Roberts’s usual reticence. “But I’m not sure it went that well — the president then responded, and the chief justice went silent. You cannot win a back and forth with the president.”

In closing, in light of the event being co-hosted by AABANY and May being Asian American History Month, Kim asked Bharara for his thoughts on being Asian American.

Bharara acknowledged that at the beginning of his tenure as U.S. attorney, he didn’t think much about it. But as he attended public events and connected with Asian Americans who drew inspiration from his story, it came to loom larger in his mind.

Bharara recounted one particularly moving encounter, in which a man spoke with him after an event and told him that he made his 12-year-old son read a number of articles about Bharara the other night.

“Why?” Bharara asked.

“Because I wanted him to read about you and know that even if you come from India, if you work hard, you can do what Preet can do,” the man said.

Bharara is, in fact, an immigrant, born in 1968 in Punjab, India (so you won’t see him running for president, unless we amend the Constitution). He’s often asked about whether his status as an Asian American or an immigrant gives him greater empathy or sensitivity for immigrants or minorities.

Interestingly enough, Bharara demurred. He noted that there are lots of Asian Americans some Asians who are quite racist (he phrased this more colorfully than that), and lots of some Mayflower descendants who are not.

[UPDATE (5/6/2019, 5:15 p.m.): The preceding paragraph has been corrected to more accurately reflect Bharara’s comments. Also, to be clear about his discussion of his Asian American heritage, Bharara did emphasize that he’s proud to be an Asian-American and Indian-American trailblazer, and he’s glad that his personal story can inspire other Asian Americans.]

But Bharara acknowledged that he and his parents, as immigrants who came to the United States and made (and did) good, feel deep loyalty and gratitude to this country. Bharara mentioned his father — one of 13 kids, and the first person in his family to go to college — who came to the United States, became a doctor, and saw his son become the chief law enforcement officer of New York by age 40.

“That says something about America — and about the need to give back,” Bharara said. “In my family, we say that this country is the greatest one on earth — no matter who the president is.”

(Disclosure: I received a free copy of Bharara’s book, as did all the other guests at the event.)

DBL square headshotDavid Lat, the founding editor of Above the Law, is a journalist, speaker, and novelist. His book Supreme Ambitions: A Novel (2014) was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at [email protected].

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