NEW YORK (AP) — It was bad enough that New York’s most famous prosecutor, Preet Bharara, lost in the sweepstakes to become the next U.S. attorney general nominee to a fellow federal prosecutor from his own city.
But Bharara and his team in the Manhattan U.S. attorney’s office have also suffered some major setbacks in recent months of a kind not seen since he arrived on the job nearly six years ago.
They include a federal appeals court’s dismissal of insider trading convictions against two men, and prison sentences for five former employees of imprisoned financier Bernard Madoff that fell decades short of what the government sought. The appeals court ruling has led to the unraveling of several other insider trading convictions among more than 80 that the office proudly touted before the setback.
And those came only months after a judge threw out a former police officer’s conviction on the most serious charge in a cannibalism case, saying evidence sold to the jury as proof the officer wanted to torture, kill and eat the flesh of his wife and other women was just an Internet fantasy.
Could it be a dimming of the star prosecutor who once made the cover of Time magazine, who has been widely praised for his tough talk about insider trading on Wall Street, and whose fight against public corruption, particularly in New York state government, has put him at odds with Gov. Andrew Cuomo?
Bennett L. Gershman, a professor at Pace University School of Law who has authored a book, “Prosecutorial Misconduct,” suggests Bharara’s constant efforts to raise his own profile — through news conferences, speeches, even a lengthy television interview with Charlie Rose — may be backfiring.
“Is he educating people? Maybe. Is he inflaming people? Maybe. Is he doing what prosecutors should do? No.” Gershman said. “Because he’s put himself out there with such gusto — grandstanding — the cases he’s lost are going to take on added prominence.”
Compared to Loretta Lynch, the U.S. attorney in Brooklyn who secured the U.S. attorney general nomination despite her under-the-radar persona, “It’s like night and day,” he added.
A spokesman for the US Attorney’s office declined to comment for this story. But at a recent law school forum, Bharara told the audience he considered it his duty to accept speaking engagements and use his position as bully pulpit.
“Whether it’s gang violence or cybercrime or national security or drug trafficking or the prescription pill epidemic or fraud on Wall Street, it’s a fundamental part of the job to talk about these issues so as a community and a country, we are not just focused narrowly on prosecuting crime, but also preventing it and deterring it,” he said.
To be sure, Bharara continues to enjoy a high success rate in criminal cases in general, scoring triumphs in cases big and small. That includes terrorism trials that ended with convictions of Osama bin Laden’s former spokesman and of a British Islamic cleric who was convicted of conspiring to provide material support to terrorist organizations.
Only three weeks ago, a jury convicted one of al-Qaida’s earliest members, someone who was so close to bin Laden that he arranged interviews for him in the late 1990s with American journalists.
But the setbacks stand out in the Southern District of New York, a region encompassing Manhattan, the Bronx, and the suburban counties north of the city, where prosecutors secure convictions over 90 percent of the time.
Even in terrorism cases, where Bharara’s office has a track record of securing stiff sentences, some outcomes could be viewed as a letdown.
In one, a Tunisian man who Bharara said at the time of his 2013 arrest wanted to build a U.S.-based terror network eventually pleaded guilty to lying to a federal agent about why he came to the United States and was sentenced to the 15 months he had already served.
In another, an Egyptian lawyer charged with others in the 1998 deadly bombings of two U.S. embassies in Africa was permitted to plead guilty to making death threats against Americans in a deal that means he faces no more than 25 years in prison rather than life he might have faced before the plea. He’s already been incarcerated 15 years.
Some experts say Bharara should be commended for bringing legally complex white-collar cases — even at the risk of losing them.
“The crime in the suites shouldn’t get a pass,” said James B. Jacobs, a New York University School of Law professor.
Jennifer Rodgers, executive director of the Center for the Advancement of Public Integrity at Columbia Law School, agreed.
“Certainly there will be the occasional loss when one is aggressive in the pursuit of justice because that will involve pushing the boundaries of the law sometimes,” she said. “And there are definitely cases brought because it’s the right thing to do, even where legal issues make the outcome somewhat uncertain.”
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He went to the Giuliani School of Law.
He might be a camera seeking blowhard, but if recollection serves, the federal appeals court’s dismissal of insider trading convictions was more due to them re-defining what insider trading was (greatly narrowing it’s scope) than anything particularly unusual about the cases themselves.
That I’ve seen a couple of AP hit-pieces on him thus far might speak more about the enemies that he’s made and their influence than anything. I suspect that the next USA who’s considering when to bring charges in financial cases might make note of the, um, critical treatment that he’s getting here.
Bharara is just the most obvious symptom of what has happened to the Criminal Division of the Justice Department under Eric Holder and the federal judiciary’s loathing of him and it. They only go after cases and charges that in their view are sure convictions, and then they pile on. Many federal judges—from the Supreme Court on down— are becoming quite annoyed. Just look at the majority and dissenting opinions in Yates v. United States (http://www.scotusblog.com/case-files/cases/yates-v-united-states/) (and better yet, listen to the oral argument, which is available on that website)where both sides of a divided Court were annoyed at the Justice Department filing charges under Sarbanes-Oxley that could have resulted in a fisherman getting 20 years for throwing 3 tiny fish overboard.
TPM— you want the bigger picture, look at the Justice Department overreach, and the judicial and jury reactions to it across the country. It’s happening in my cases, and all over.
Overreach? When the head of Countrywide wasnt prosecuted? When the CEOs who caused trillions in personal wealth to vanish, who are still committing some of the same crimes today get a slap on the wrist (if that) are not prosecuted at all???
I see that as “no reach” at all
Now you want to talk overreach…Aaron Schwartz. That was overreach…as is the DOJ on most cases involving IP law
Read what I said— they only go for cases they think are sure convictions. That means wiretaps, confessions, documents, videos, etc. Most financial crimes are done by people smart enough not to talk about this stuff on the phone or send emails about it. The overreach I am talking about is the heavy prosecution of street crimes that have traditionally been the province of state courts. The state prosecutors are usually all too happy to hand these over because they cannot dream of getting the sentences the feds can get, even with the related sentencing guidelines Holder pushed through. Also, when the feds convict them, they are jailed on the federal dime.