Ethics Dunce: Ex-US Attorney Preet Bharara

And a good thing, too…

Preet Bharara, until recently the United States Attorney’ for the Southern District of New York, was known as an aggressive, fearless, skilled prosecutor. He was also  increasingly a partisan one, as his  felony prosecution of Dinesh D’Souza, a vocal conservative critic of President Obama, showed. Despite the ridiculous and dishonest criticism of President Trump for firing Baharara, if there has ever been a President with good cause not to trust holdovers from the previous administration, it is Donald Trump.

The last Holder/Lynch Justice Department employee he trusted was Sally Yates, and she breached her ethical and professional duties by going rogue, and not just rogue, but partisan rogue. Baharara,who referred to himself as a “completely independent” prosecutor, was such a good bet to go rogue that it would have been negligent for Trump not to fire him. Democrats in and out of government are suddenly dedicated to defying and bringing down our governmental institutions, notable the Presidency. They can’t be trusted. Even if it wasn’t  the usual course to sack the previous administration’s US Attorneys—though it is—  there was every reason for this President to sack these prosecutors.

And, nicely enough, Bharara proved that Trump was right by grandstanding on his way out the door.

Asked to resign along with his colleagues, Bharara refused, and Trump fired him  Glenn Reynolds calls the refusal to resign childish, but it was more that. It was a breach of professional ethics, and akin to Yates’ stunt.  Bharara is a government lawyer, meaning that he represents the government’s interests as his supervisors define them. If he doesn’t like their priorities, his option is to resign—not defy them until he is fired, but resign.  United States Attorneys “serve at the pleasure of the President” and that’s a term of art.  The prosecution of crimes, including the decision regarding which crimes to prosecute and which crimes not to prosecute, is made at the discretion of the Executive Branch, which is headed by the President. If, for example, Bharara felt that Obama’s executive order declaring  that illegal immigrants who hadn’t committed serious crimes were henceforth to be treated as if they were legal immigrants rather than illegal ones was unconstitutional, which it is, his option would have been to resign, not give a press conference, a la Yates, declaring his opposition to the new policy.

If the President had read that a US. Attorney crows about his independence and happily signed on to a dubious partisan order like that one, he had a perfectly justifiable reason to question whether he could count on this Preet Bharara. Lawyers typically don’t get to refuse to leave when their client wants a new lawyer. Doing so is a breach of duty under the ethics of the attorney-client relationship. Nevertheless, Bharara did refuse, intentionally trying to undermine his client’s duly elected spokesman for purely political purposes.

Writes CNN’s (incompetent and legal ethics ignorant) legal analyst Danny Cevallos—what a hack!writes,

It’s a clever chess move by Bharara: force the firing, make the administration look like the tyrants. It’s not like it hurts Bharara; this is one legal luminary whose job prospects will not be harmed by being “fired” from his last job. As CNN Legal Analyst Paul Callan observed, former US attorneys from this district have even ascended to the New York City mayor’s office after their tenure.The problem is this: because of the massive power US attorneys have over every aspect of our lives, these forced resignations are particularly suspect if they appear motivated by improper political purposes.

Unethical conduct is a “clever chess move,” is it? Has this guy (Cevallos or Bharara) ever cracked the Rules of Professional conduct? A lawyer cannot set out to cast suspicion on a client, for any reason. This is clever to Cevallos because, again, the usual ethics rules don’t matter when Donald Trump is the target.

And, of course, THIS is CNN…

Bharara’s  comment after forcing the President to fire him was “Now I know what the Moreland Commission must have felt like.” The Moreland Commission was an investigation into  political corruption in New York that was infamously dissolved when it got too close to some powerful figures. This comment was a nakedly political and unconscionable  dog-whistle to the anti-Trump press: Bharara’s removal by a President from the opposition party must mean that he was about to find dirt on Republicans or Trump.

It’s unethical to impugn a client while leaving a representation. As former federal prosecutor Andrew McCarthy writes, “Preet well knows…prosecutors are not supposed to suggest publicly misconduct they are unprepared formally to charge and prove.” “Not supposed” means “are prohibited from doing so under professional conduct rules.”

Concludes Reynolds, reaching the result I did (but I’m typing this in a hotel on my blasted  netbook, and it’s easier for me to let the professor say it than for me to type it):

Bharara’s refusal to resign wasn’t about principle. It was about putting himself publicly on the side of anti-Trump Democrats, no doubt in the expectation of future rewards, political or professional. It was not a brave act. It was, in fact, a species of corruption.

A prosecutor so willing to disrespect the constitutional chain of command for petty personal reasons is one who’s not fit to wield the enormous power that federal prosecutors possess…I think we can do better than that. And I guess Trump thinks so, too.

Preet Bharara deserved to be fired and had to be fired. This is another good litmus test for finding ignorant, biased and partisan commentators: if they think there was anything amiss with Trump asking him to resign, or any ethical justification for Bharara to refuse, that’s a positive test result

13 thoughts on “Ethics Dunce: Ex-US Attorney Preet Bharara

  1. One thing you left out, Jack, is that Bharara met with Trump early on and was initially asked to stay on. It may be irrelevant, the US attorneys serve at the pleasure of the President, and the President is fully within his rights to change his mind and say “sorry, Preet, but AG Sessions and I have decided to put our own person in after all,” but it is still an important detail. It is definitely the usual practice to replace the US attorneys when the White House flips. How it’s done often varies, but the post has a finite term of 4 years. Rarely does a President reappoint one from the other party, it’s just usually a question of does the US attorney get to finish out his/her term or not. Half of Obama’s appointees had already stepped down. They knew their terms were about to run out and they wouldn’t be reappointed, so it was time to move on. The last large-scale removal was 1993, when just-confirmed AG Janet Reno called for the resignation of all US attorneys at the same time, and was hailed as powerful and progressive for doing so. George W. Bush removed a few late in his term, and took a fair amount of heat for it.

    The fact is that Bharara knew he was going either way. He probably harbored some ill feelings, because Trump had told him initially to stay on and maybe he believed Trump was going back on his word. So he held the press conference, implied that maybe he was getting close to digging up something damaging on Trump, and hey, presto, he raised his profile VERY high. Not that he was in a bad spot if he had gone quietly, I’m sure he would have had his choice of very lucrative jobs in private practice, but now he can remain in the public eye, and angle for either the Federal Bench or the AG’s seat when the Democrats one day retake the White House. In the meantime, all these newly unemployed powerful former prosecutors can start representing all kinds of groups opposed to the president and ensure that the illegal immigrants, the liberal public interest groups, the rioters, and everyone else opposed to the president, have top-notch legal representation who know the judges.

    • See. I don’t think it matters that he asked him to stay on. He also asked Yates to stay on. And after the leaks, and Sessions being attacked, and the cumulative effect of the hyper-partisan war on his administration and him, I assume Trump concluded, “Screw this: I can’t trust these people.” And he was right. He was wrong when he assumed they would be professional.

  2. Dinesh D’Souza must be smiling today: What goes down comes around. Donald had ever right to fire this partisan jerk regardless of what CNN says.

  3. I honestly don’t understand the whole being “asked to resign” thing. It makes sense as a private move to allow someone to save face, but to publicly ask people to resign seems like a farce. I’m not defending Baharara. I just don’t get how this became such a big deal. The boss didn’t want him and got rid of him. It happens.

    • It’s a formalizing of what should be a natural ethical response. My superior doesn’t have faith in me, so the honorable thing is to resign. I believe it was Ike who made all appintments fill out and sign an undated letter of resignation at the beginning of their duties.

      • Kids these days. They don’t get Airplane jokes. “220, 221, whatever it takes” doesn’t work much anymore either.

        I just hope Inigo Montoya references never die.

  4. I don’t quite know what to think of my fellow members of the bar who think that Bharara fought the good fight for truth and justice by telling the President to stuff it. My colleagues must know that Attorneys-General serve at the behest of the Chief Executive, regardless of whether they are amazing lawyers, rubes, or political payoffs. Yet, howls of outrage come from the Democrats that this is some sort of nefarious, alt-right conspiracy to rid the Presidency of meddling attorneys-general investigating scandals in their respective midsts (sp?).


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