By Peter J. Henning
President Trump once said, “Generally, I like other people to fire, because it’s always a lousy task.”
Lousy or not, that was the message delivered to 46 holdover U.S. attorneys from Attorney General Jeff Sessions, directing them to submit their resignations and leave office immediately.
Preet Bharara, the U.S. attorney for the Southern District of New York who became one of the nation’s most well-known prosecutors, did not go quietly into the night. He refused to submit his resignation, which forced Trump to fire him – although true to his observation, the news was delivered by Dana Boente, the acting deputy attorney general.
Could Bharara have fought to keep his job? The simple answer is “no” because a federal statute provides that “each United States attorney is subject to removal by the president.”
The abrupt firing of the U.S. attorneys is not the first time questions have been raised about the propriety of a president summarily dismissing a federal prosecutor.
In January 1978, President Jimmy Carter fired David W. Marston, the U.S. attorney in Philadelphia who had been appointed by President Gerald R. Ford, after being urged to do so by Rep. Joshua Eilberg, who was under investigation at the time for possible corruption. As The New York Times reported then, this was only one part of a much broader mosaic of corrupt dealings in Pennsylvania politics.
Despite howls of protest from Republicans, Marston did not regain his office – and the investigation resulted in Eilberg’s pleading guilty to a conflict-of-interest charge in 1979.
There was a similar furor in March 1993, when Attorney General Janet Reno demanded the resignation of the holdover U.S. attorneys, including Jay B. Stephens in Washington. The Times reported that questions were raised about whether that move was done to protect Rep. Dan Rostenkowski, an ally of President Bill Clinton who was under investigation by Stephens for abuses in his congressional office.
Regardless of protests about the abrupt action, they all lost their jobs, including Sessions when he resigned as U.S. attorney in Mobile, Alabama. As it turned out, Rostenkowski was indicted in 1994 and pleaded guilty to mail fraud charges two years later.
A controversy arose in 2007 over the removal of nine U.S. attorneys by Attorney General Alberto R. Gonzales that had nothing to do with a change in administration, but triggered questions about whether the changes were because of a failure to pursue charges against political opponents. Among those involved in the Senate inquiry into the firings was Sen. Chuck Schumer, D-N.Y., with Bharara serving as his chief counsel.
Bharara’s office has been involved in several sensitive public corruption cases over the past few years, obtaining convictions of Sheldon Silver, former speaker of the New York state Assembly, and Dean G. Skelos, former Republican majority leader of the state Senate.
The status of those cases is up in the air as the federal appeals court in Manhattan considers whether the Supreme Court’s decision last year in McDonnell v. United States, which restricted the corruption laws, might require overturning the convictions. Silver’s case is scheduled to be heard this week.
A significant continuing investigation concerns fundraising for Mayor Bill de Blasio of New York related to possible pay-to-play issues involving the awarding of city contracts. De Blasio was interviewed for four hours recently by federal prosecutors and FBI agents, indicating that the inquiry has reached a late stage.
Much like a general, the U.S. attorney is responsible for the overall leadership of an office, but usually does not get involved in the details of an investigation or prosecution. The role is more about the deployment of the office’s resources and setting priorities for career prosecutors, who are largely unaffected by the political persuasion of their bosses.
The removal of a U.S. attorney often does not have a direct impact on pending investigations, especially those that are well along, because the chief deputy in the office usually takes over until the Senate approves a new appointee. Joon H. Kim, a close associate of Bharara, was named acting U.S. attorney in Manhattan, but whether he too might be replaced by someone with closer ties to the attorney general remains to be seen.
Trump has not even nominated any replacements for the 93 U.S. attorneys, a process that usually requires months to identify candidates and complete the necessary background investigations.
Sessions issued a directive last week telling federal prosecutors “to engage in a focused effort to investigate, prosecute and deter the most violent offenders.” That could mean less attention to white-collar crime as the Justice Department puts a greater emphasis on more common street crimes.
It will take time to develop new cases, however, and most violent offenses are handled by state and local prosecutors. So the level of federal involvement remains to be seen. Efforts by Sessions to reshape the focus of the U.S. attorney’s offices may not come to fruition anytime soon because federal prosecutors have an independent streak and often give short shrift to directives from Washington.
Bharara’s legacy in the public’s eyes was first built largely around high-profile insider trading cases prosecuted in Manhattan, beginning with the arrest of Raj Rajaratnam and others in October 2009. A run of convictions resulted in Bharara’s appearance on the cover of Time magazine in February 2012 behind the headline, “This Man Is Busting Wall Street.”
Even after losing some convictions in 2015 when the appeals court in Manhattan took a narrower view of the requirements for proving insider trading in United States v. Newman, Bharara’s prosecutors continued to aggressively pursue these cases, including charges against gambler William T. Walters in a trial scheduled to begin this week.
If there has been a criticism of Bharara’s reign, it was the lack of any signature prosecutions of Wall Street executives for conduct related to the financial crisis. In an article in The New Yorker in 2011, he responded to that claim: “Do you have any idea how much people want to bring the case if it exists? So what could be the reason we haven’t? Sometimes people say, ‘It’s because you’re beholden to these guys,’ which doesn’t make any sense. Do we look like we’re afraid to prosecute anyone?”
Whether individual prosecutions after the crisis should have been brought remains a contentious issue, although it is difficult to blame one U.S. attorney – even one as powerful as Bharara – for the Justice Department’s pursuing only civil complaints against big banks that resulted in multibillion-dollar settlements but little satisfaction that no executives behind the corporate facade were held accountable.
Where Bharara goes next is a big question because his removal happened without any warning, so the usual groundwork for a transition has not been laid.
One example of what a former U.S. attorney does is Mary Jo White, who served as U.S. attorney under Bill Clinton and then became a partner at Debevoise & Plimpton, a major Wall Street law firm. She later served as chairwoman of the Securities and Exchange Commission, then recently returned to the firm.
Every major law firm in New York City would happily roll out the red carpet for Bharara and offer him millions to become a partner, because he would be a magnet for corporate clients caught up in investigations.
But private practice does not seem to be a likely landing spot for someone who has been a prosecutor and senior congressional adviser since 2000. It would be a bit discordant to hear Bharara defending clients accused of financial chicanery after his aggressive pursuit of white-collar defendants over the last eight years.
New York has a long history of electing prosecutors as governor, including Gov. Andrew M. Cuomo – whose term ends in 2018 – and a predecessor, Eliot Spitzer, both former New York attorneys general. Thomas E. Dewey made his name as a crusading prosecutor pursuing organized crime before running for governor in 1938, winning the office four years later.
Sessions survived being fired as U.S. attorney to be elected attorney general in Alabama before winning a seat in the Senate in 1996, and then being tapped for U.S. attorney general. If there is a silver lining for Bharara, then in the words of the Steve Allen song, “This Could Be the Start of Something Big.”
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