Fordham Law


Preet Bharara on a prosecutor's 'descent to hell,' and, unrelated, how prosecutors can seek higher office

Thane Rosenbaum in Capital New York, October 19, 2011

Media Source

On Tuesday evening, U.S. Attorney Preet Bharara sat in the front row of a small auditorium at Fordham Law School for a screening of Sydney Pollack's 1981 film Absence of Malice.

In the movie, a federal prosecutor leaks news of a murder investigation to an eager young journalist played by Sally Field, who makes only a perfunctory attempt to contact the suspect, played by Paul Newman, before the story runs on the front page of the Miami Standard. Newman, who is innocent, tries to fight back, in his steely Newmanesque way, against the paper and the government, as the report progressively ruins his life. Later, before Wilford Brimley comes in to set things straight, there are some questionable journalistic ethics, a suicide, and a handful of illegal wiretaps.

Bharara, who occassionally slips a movie reference into his press conferences, was at Fordham Law as a guest of the Forum on Law, Culture and Society's Film Festival. As you might expect, he didn't much approve of the prosecutors' conduct in the movie.

"What people don't realize is, it's really hard to get a wiretap on someone's phone," said Bharara in a panel discussion after the film.

Bharara's office recently concluded a high-profile prosecution of Galleon Group hedge-fund founder Raj Rajaratnam that was intended, in part, to send a signal that the Southern District would be employing its full investigative arsenal, including wiretaps, against the bad actors in the financial industry. (The extensive recording of phone calls led a judge in a separate but related case to admonish the office for "unnecessary, and apparently voyeuristic, intrusion" into one defendant's private life.)

"I think sometimes people have a feeling—lay people have a feeling, before I was a prosecutor, I had a feeling—that you sort of call someone up and you wiretap their phone," Bharara explained. "At least on the federal side, it requires a lot of investigation, it requires a lot of evidence, it requires memos to be written, it requires Washington's approval, it requires the judge's approval. And before it even gets to Washington, there are three layers of approval.

"Why did that all happen? It happened in part because of the excesses that happened in the early '70s, with wiretapping that was run amok." (Cf. Watergate.)

In the Southern District, Bharara said, a judge's willingness to sign off on a wiretap is not, in itself, sufficient.

"You can have bad conduct happen along the way that can then be legitimized by a judge later," he said. "In my view, a prosecutor doing the right job is not simply satisfied by that, but is able to prove throughout the process that everything they were doing was right in accordance with the law and the rules."

Bharara said he tells his prosecutors to "think outside the box, but within the constraints of the law," and, of course, not to adopt the ends-justify-the-means approach of the prosecutors in the film.

"If you start going down that road—not to be slippery-slope guy—but when you start going down that road, saying, 'Well, I guess we can violate this rule or this regulation or this statute for the greater good,' that's the moment in which you begin the descent, in my mind, to hell."

Bharara said his interviews with prospective prosecutors always include a sobering question about how they'll feel depriving dozens of people of their liberties, often for their lives.

"Every once in a while, it's uncommon, but every once in awhile, you get somebody who is kind of psyched about that," Bharara said. "You don't hire those people. Because those are the sorts of people who are so single-minded and so zealous that they cross the line and break the rules and make the world less safe for all of us."

There's also a politically inclined district attorney in the film, and the moderator, Thane Rosenbaum, the director of the forum, began one question with a long wind-up about prosecutors becoming politicians. He cited Rudy Giuliani and, more recently, Chris Christie, but he stopped short of asking Bharara whether he would consider standing for some future office.

Bharara said that "if you live by the press, you die by the press," and that prosecutors can't concern themselves with that.

"I think sometimes we can overstate the trajectory for prosecutors to go to higher office," he said. "You said, had Rudy Giuliani not been U.S. Attorney, he would not have become mayor. If Arnold Schwarzenegger had not been the Terminator, he would not have been governor ... There are baseball players who get elected to office. There are lots of factors that go into that. What I do think is true is that there's nothing wrong with people wanting to serve."

He mentioned the "noble and great people" he worked with during his four-plus years working for the Judiciary Committee under Senator Chuck Schumer.

"As long as you're doing a good job and keeping your eye on the ball, I don't think there's anything wrong with wanting to seek something further," he said. "However, if, on the other hand, you are making decisions in your job as a prosecutor—prosecutors are different from other officials, whether they're elected or not—if you are making decisions about who to go after, how to go after them, how tough to be, based on what you think that will do for your future political career, then you don't belong in that position."

For his part, Bharara was not in the mood to leak much to the press last night.

On the way in, it was suggested to reporters that Bharara would be willing to take a few questions from the press after the panel. But when the conversation finally concluded around 10:30 p.m., that idea was summarily dismissed by Bharara's spokeswoman.

"You know what, he's not really doing any interviews right now," she said.

But Bharara was curious.

"Well, what's your question? Which I won't answer," he said. "It tells me something."

Well, fine. Did he feel that his office's investigations had produced any meaningful deterring effect on the bad behavior in the financial industry?

He paused for a moment.

"Yes," he said. "Yes."