Preet Bharara, the former U.S. attorney for the Southern District of New York, is now a partner at WilmerHale, where he's offering "solutions" including "white collar defense and investigations." He spoke to Bloomberg Markets, which asked him, "What was your biggest mistake?" Bharara replied:
As a general matter, when we open an investigation with respect to somebody—you know, because an FBI agent comes to your door, or we ask for your phone, or we issue you a subpoena—there's a policy of not telling you when we close the case.
Lots of people are in sort of limbo and paralysis, because they know the government is looking at them, law enforcement investigators are examining them, and then quietly the case goes away. But they're never informed. They're not given notice. So they can't make decisions about their life, their job, their property, their marriage, their social relationships, where they want to live. And I now see that in a more direct way, because I represent companies and individuals who are under scrutiny and are being investigated. For the life of me, I can't figure out why there's not a better policy in favor of letting targets know when they're no longer targets.
I'm not generally a big Preet Bharara fan, but the point he is making strikes me as reasonable. It also raises broader issues about due process in the early phases of federal investigations—"looking at them," "examining them"—where there tends to be less judicial oversight and where the Constitutional rights that ostensibly protect people facing criminal charges haven't yet fully kicked in.
