As President Trump searches for a replacement for the U.S. attorney for the Southern District of New York, it's worth pausing for a moment to reflect on the failures of the man who, until he was fired on Saturday, occupied that office, Preet Bharara.
Understanding what Mr. Bharara got wrong — why he so richly deserved firing — may help his successor avoid repeating the same mistakes. It can also shine a light on one of the lesser known but nonetheless serious flaws in our criminal justice system, the plague of prosecutorial misconduct.
Problematic prosecutors don't get the attention that, say, racist cops do. But the dangers have been clear to perceptive observers all the way back since at least 1940, when Robert H. Jackson, then the attorney general of the United States, gave a classic speech titled "The Federal Prosecutor." (The speech is so classic that a copy is posted on the Justice Department web site.)
Jackson, who later became a Supreme Court justice, warned that the "most dangerous power of the prosecutor" is "that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted."
Jackson said, "It is in this realm — in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies."
Mr. Bharara selected not just one "group of unpopular persons," but two, hedge fund managers and politicians.
In an October 2010 speech to defense attorneys, Mr. Bharara declared that "illegal insider trading is rampant and may even be on the rise." He further asserted that "many of the people who are going to such lengths to obtain inside information for a trading advantage are already among the most advantaged, privileged, and wealthy insiders in modern finance."
What was remarkable was that the prosecutor made that speech before he brought any substantial number of insider trading cases. When he finally did bring the cases, large numbers of them were rejected by judges and juries.
In 2014, Rengan Rajaratnam was acquitted after a three week trial. The jury forewoman, Isabel Tirado, told the New York Times that the prosecutors had failed to produce proof of wrongdoing. "There was no evidence, period," she said.
Also in 2014, three judges on the U.S. Court of Appeals for the Second Circuit, in the case U.S. v. Newman, threw out two convictions Mr. Bharara had won. The Second Circuit opinion, which the Supreme Court let stand despite Mr. Bharara's request for a hearing, criticized what the judges called "the doctrinal novelty" of Mr. Bharara's "recent insider trading prosecutions, which are increasingly targeted at remote tippees many levels removed from corporate insiders." (The Supreme Court later revisited the legal issues in a different case.)
In 2015, another appellate judge, Alex Kozinski, called Mr. Bharara's office's tactics in yet another eventually dismissed insider trading case "sleazy." The judge who wrote the Newman opinion, Barrington Parker, in 2016 described Mr. Bharara's position in another insider trading case as sounding "sadistic."
In at least one case, Mr. Bharara publicly raided a hedge fund, causing its closure, without bringing a case against it. The manager of that fund, David Ganek, has filed a civil suit against Mr. Bharara in which a hearing is scheduled for this month.
In yet another Southern District "insider trading" case, a judge earlier this month ordered Mr. Bharara to provide regular updates on a federal investigation into what even Mr. Bharara acknowledged in a court filing had been "improper and inexcusable" leaking of confidential grand jury information to the press.
Some Republicans had urged President Trump to retain Mr. Bharara because the prosecutor goes after Democratic politicians as well as Republican ones. Yet there, too, the prosecutor's tactics won him a judge's rebuke.
Mr. Bharara's tweeting and television commenting about the arrest of the speaker of the New York State assembly, Sheldon Silver, a Democrat, bothered Judge Valerie Caproni. She wrote in 2015, "In this case, the U.S. attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that Defendant Sheldon Silver has a non-frivolous argument that he fell over the edge."
Mr. Bharara's nearly yearlong, leaky investigation of fundraising by the mayor of New York, Bill de Blasio, another Democrat, achieved the almost impossible task of making Mr. de Blasio look sympathetic for having had to endure it. Sure, not even politicians should be above the law. But Mr. Bharara's sweeping pronouncements about political corruption in the Empire State make it look like he's using the law for local political ends.
Jackson's speech had cautioned, "In spite of the temptation to divert our power to local conditions where they have become offensive to our sense of decency, the only long-term policy that will save federal justice from being discredited by entanglements with local politics is that it confine itself to strict and impartial enforcement of federal law."
The fact that Mr. Bharara lost some cases or had others overturned isn't necessarily damning in and of itself. We wouldn't want prosecutors to win every case.
But it would be preferable, too, to avoid prosecutors whose stances judges find, with good reason, to be sleazy, sadistic, or doctrinally "novel." Mr. Bharara's replacement in Manhattan would do well to read Jackson's speech, and then, with its warnings in mind, to take a careful, fresh look at all the cases under way.
