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Bharara Joins The Trump “Resistance”: Asks If Any Public Servants Will Dare Say No To The President

It appears the so-called 'resistance' is coalescing around a number of fired-by-Trump formerly powerful Obama administration officials desperate to maintain the tyrannical Trump narrative. The latest is infamous non-prosecutor of Wall Street's worst Preet Bharara who questions: Are there still public servants who are prepared to say no to the president?

 

The U.S. attorney for the Southern District of New York from 2009 until he was fired by Trump this March takes to The Washington Post's echo chamber to pen an opinion piece proclaiming Trump's actions over Comey's firing (his old boss and friend) as damaging to faith in the rule of law, suggesting some ideas to fix his tyrannical ways…

He begins with an anecdote to set the scene for historical precedent

The most dramatic hearing I helped to arrange as chief counsel to a Senate subcommittee took place 10 years ago Monday, when James B. Comey, then deputy attorney general in the George W. Bush administration, described how he and FBI Director Robert Mueller intervened at the hospital bedside of Attorney General John Ashcroft.

 

The encounter occurred in 2004, after White House Chief of Staff Andrew H. Card Jr. and White House Counsel Alberto R. Gonzales tried to overrule Comey’s and Mueller’s legal objection to a secret terrorist surveillance program.

 

When the White House nonetheless sought the ailing Ashcroft’s blessing to proceed, Comey prepared to resign. Ultimately, Comey and Mueller prevailed.

And then explains how terrible things have become…

Jim Comey was once my boss and remains my friend. I know that many people are mad at him. He has at different times become a cause for people’s frustration and anger on both sides of the aisle. Some of those people may have a point. But on this unsettling anniversary of that testimony, I am proud to know a man who had the courage to say no to a president.

 

in the tumult of this time, the question whose answer we should perhaps fear the most is the one evoked by that showdown: Are there still public servants who are prepared to say no to the president?

So having raised that question spuriously, let's go back to yet another instance of an event in which a Republican White House did something the so-called progressive left did not appreciate…

Now, as the country once again wonders whether justice can be nonpolitical and whether its leaders understand the most basic principles of prosecutorial independence and the rule of law, I recall yet another firestorm that erupted 10 years ago over the abrupt and poorly explained firing of top Justice Department officials in the midst of sensitive investigations.

 

The 2007 affair was not Watergate, the more popular parallel invoked lately, but the lessons of that spring, after the Bush administration inexplicably fired more than eight of its own U.S. attorneys, are worth recalling.

 

When the actions became public, people suspected political interference and obstruction. Democrats were the most vocal, but some Republicans asked questions, too. The uproar intensified as it became clear that the initial explanations were mere pretext, and the White House couldn’t keep its story straight. Public confidence ebbed, and Congress began to investigate.

 

In response, the Senate launched a bipartisan (yes, bipartisan) investigation into those firings and the politicization of the Justice Department. Early on, the then-deputy attorney general — Comey was gone by then — looked senators in the eye and said the U.S. attorneys were fired for cause; although such appointees certainly serve at will, this assertion turned out to be demonstrably false. We learned that the U.S. attorney in New Mexico, David C. Iglesias, was fired soon after receiving an improper call from Republican Sen. Pete V. Domenici pushing him to bring political corruption cases before the election. We learned that Justice Department officials in Washington had improperly applied a conservative ideological litmus test to attorneys seeking career positions, to immigration judges and even to the hiring of interns.

 

Ultimately, amid the drumbeat of revelations, every top leader of the department stepped down under a cloud. Finally, Gonzales himself resigned. Strict protocols were put in place severely limiting White House contacts with Justice officials on criminal matters. The blow to the morale and reputation of the department was incalculable.

First things first, may we suggest that "the country" for which you speak of is not busily wondering "whether justice can be nonpolitical" – instead they are busily wondering where the next paycheck is coming from, how they will pay soaring healthcare costs and put a shelter over their families heads.. but of course, thats' not the Washington narrative-du-jour. Which brings us back to today…

For me, the past week has been deja vu all over again. To restore faith in the rule of law, three obvious things must happen:

 

First, we need a truly bipartisan investigation in Congress. That means no partisan nonsense — just a commitment to finding the facts, whatever they may be, proving (or disproving) Russian interference in our election and anything related. Congress is a check and a balance, and never more important than when a bullying chief executive used to his own way seems not to remember the co-equal status of the other two branches.

 

Second, the new FBI director must be apolitical and sensitive to the law-enforcement mission, not someone with a long record of reflexive partisanship or commentary on the very investigative issues that will come before the bureau. Unfortunately, some of the candidates paraded by cameras this past weekend reality-show style fall into that category. I can’t think of anything worse for FBI morale, for truth-finding or for public trust. More than ever the FBI needs a strong and stabilizing hand, which means somebody who has not spent most of his or her career pandering for votes, groveling for cash or putting party over principle.

 

Finally, I join in the common-sense call for an independent and uncompromised special counsel to oversee the Russia investigation. Given the manner of Comey’s firing and the pretextual reasons proffered for it, there is no other way. My former colleague, now-Deputy Attorney General Rod J. Rosenstein, is a respected career prosecutor but has mostly deserved the doubts he generated with his peculiar press-release-style memo purporting to explain Comey’s sudden sacking. He can still fix it. The move would not only ensure the independence of the investigation, but also provide evidence of Rosenstein’s own independence.

Bharara ends strong with some 'constitutional'-sounding rhetoric that leaves one questioning everything about American life if Trump is left to run wild over 'law and order' – like trying to enforce immigration laws, trade agreements, and

History will judge this moment. It’s not too late to get it right, and justice demands it.

Chilling words of self-reinforcing terror.

*  *  *

As a reminder, here are some recent thoughts on Mr Bharara from respected journalist Jesse Eisenger – who is not afraid to throw a few punches of truthiness about the former prosecutor…

After his election in 1968, President Richard Nixon asked Robert Morgenthau, the US Attorney for the Southern District of New York, to resign. Morgenthau refused to leave voluntarily, saying it degraded the office to treat it as a patronage position.

Nixon’s move precipitated a political crisis. The president named a replacement. Powerful politicians lined up to support Morgenthau. Morgenthau had taken on mobsters and power brokers. He had repeatedly prosecuted Roy Cohn, the sleazy New York lawyer who had been Senator Joe McCarthy’s right-hand man. (One of Cohn’s clients and protégés was a young New York City real estate developer named Donald Trump.) When Cohn complained that Morgenthau had a vendetta against him, Morgenthau replied, “A man is not immune from prosecution merely because a United States Attorney happens not to like him.”

Morgenthau carried that confrontational attitude to the world of business. He pioneered the Southern District’s approach to corporate crime. When his prosecutors took on corporate fraud, they did not reach settlements that called for fines, the current fashion these days. They filed criminal charges against the executives responsible.

Before Morgenthau, the Department of Justice focused on two-bit corporate misdeeds—Ponzi schemes and boiler room operations. Morgenthau changed that. His prosecutors went after CEOs and their enablers—the accountants and lawyers who abetted the frauds or looked the other way. “How do you justify prosecuting a nineteen-year old who sells drugs on a street corner when you say it’s too complicated to go after the people who move the money?” he once asked.

Morgenthau’s years as United States Attorney were followed by political success. He was elected New York County District Attorney in 1974, the first of seven consecutive terms for that office.

There are parallels between Morgenthau, and Preet Bharara, the U.S. attorney for the Southern District who was fired by President Trump this weekend.

Like Morgenthau, the 48-year old Bharara leaves the office of US Attorney for the Southern District celebrated for taking on corrupt and powerful politicians. Bharara prosecuted two of the infamous “three men in a room” who ran New York state: Sheldon Silver, the Democratic speaker of the assembly and Dean Skelos, the Republican Senate majority leader.

He won convictions of a startling array of local politicians, carrying on the work of the Moreland Commission, an ethics inquiry created and then dismissed by New York’s Gov. Andrew Cuomo. (This weekend, Bharara cryptically tweeted that “I know what the Moreland Commission must have felt like,” a suggestion that he was fired as he was pursuing cases pointed at Trump or his allies.)

But the record shows that Bharara was much less aggressive when it came to confronting Wall Street’s misdeeds.

President Obama appointed Bharara in 2009, amid the wreckage of the worst financial crisis since the Great Depression. He inherited ongoing investigations into the collapse, including a probe against Lehman Brothers.

He also inherited something he and his young charges found more alluring: insider-trading cases against hedge fund managers. His office focused obsessively on those. At one point, the Southern District racked up a record of 85-0 in those cases. (Appeals courts would later throw out two prominent convictions, infuriating him and dealing blows to several other cases.)

Hedge funds are safer targets. The firms aren’t enmeshed in the global financial markets in the way that giant banks are. Insider trading cases are relatively easy to win and don’t address systemic abuses that helped bring down the financial system.

Even there his record was more mixed than is popularly understood. As Sheelah Kolhatkar demonstrates in her propulsive and riveting “Black Edge,” when it came to bringing his biggest whale to justice, Steve Cohen of SAC Capital, the Southern District blinked. They did not charge him, only securing a guilty plea from his firm.

Present and former prosecutors say Bharara did not give much emphasis to investigations arising from the financial meltdown, an approach shared by his boss, Attorney General Eric Holder. Justice Department insiders say many of those inquiries withered not because they were unpromising, but because they had little support.

Bharara missed an opportunity by not bringing any significant criminal charges against individuals in the wake of the collapses of Lehman, investment bank Merrill Lynch, the insurer AIG, the mortgage securities and collateralized debt obligation businesses, or the myriad public misrepresentations from bank CEOs about their finances.

Bharara and senior officials in Washington argue that there were no criminal cases to file after the 2008 crisis. But the U.S. attorney’s office in Manhattan did pursue significant civil cases against the banks for their mortgage activities, cases that had to proove misconduct by the “preponderance of the evidence.” And DOJ did win guilty pleas from the banks themselves, an indication that prosecutors might have been able to charge individuals for their part in crimes their institutions had acknowledged. Academics who studied those years, including Columbia’s Tomasz Piskorski and James Witkin and Chicago’s Amit Seru found widespread patterns of fraud in the mortgage business.

The exception makes this failure all the more puzzling. As I detailed in 2014, Bharara’s office brought one case for misconduct during the financial crisis — against a mid-level banker. Prosecutors charged Kareem Serageldin of Credit Suisse with overseeing traders who knowingly misrepresented the value of mortgage securities. Serageldin pleaded guilty and went to prison.

Serageldin’s colleagues in the industry and others familiar with Credit Suisse found it hard to believe that he was the only person involved in that particular fraud.

Bharara’s reluctance to pursue senior executives was seen in other investigations of big banks. His office wrested a $1.7 billion fine from JPMorgan Chase over its complicity in the Bernie Madoff Ponzi scheme, but it brought no charges against individual bankers.

One odd aspect of his tenure was the Southern District’s willingness to defer to other jurisdictions when it came to Wall Street cases.

Historically, the SDNY has been the leading enforcers of securities laws, nicknamed the “sovereign district” for its propensity to grab corporate fraud cases from elsewhere on the flimsiest of jurisdictional pretexts. Under Bharara, the southern district let other U.S. attorneys claim investigations into residential mortgage-backed securities, the instruments at the heart of the financial crisis. Those other offices were not nearly as versed in complex financial cases as their colleagues in Manhattan. In addition, Bharara’s office ceded post-financial crisis investigations into foreign exchange and global interest rate manipulation to prosecutors working from the Justice Department’s headquarters.

Like Morgenthau, Bharara was a prominent figure in the New York landscape, given to well-orchestrated press conferences and memorable sound bites. Like Morgenthau, he did not leave office quietly, even thought the president has a longstanding right to name his own U.S. attorneys. And like Morgenthau, he may try to parlay his martyrdom into elective office.

But if he runs on his record of convictions, as prosecutors often do, voters might want to consider as well the list of possible targets he never pursued.