Prosecutors should prosecute, not proselytize. But U.S. Attorney Preet Bharara apparently plays by different rules than most prosecutors. He has a penchant for public speaking and seems to revel in discoursing on political theory and the requisites for effective democracy, railing against greedy and corrupt malefactors—from Albany, New York, lawmakers to Wall Street traders—and occasionally mocking them with stand-up comedy. Bharara is an adept and entertaining speaker. But given the considerable power, and the respect and acclaim he enjoys with the public, he ought to be especially careful about expressing opinions. His comments have the potential to unfairly prejudice the public against individuals his office is prosecuting and undermine the public’s confidence that justice is being administered fairly and impartially.
To protect a defendant’s right to a fair trial, an array of ethical rules circumscribe the kinds of comments a prosecutor can make. Several of Bharara’s public comments appear to have violated these rules. Federal and New York ethics rules authorize a prosecutor to explain to the public the criminal charges filed against a defendant, but the rules prohibit a prosecutor from making subjective statements that assail the character of a defendant or from insinuating opinions about the defendant’s guilt. Some of Bharara‘s public statements have done just that, and they may have contaminated the ability of people who might be selected to serve on juries to evaluate the evidence dispassionately and render fair judgments.
Bharara’s prosecutorial accomplishments are impressive. His office has won an unprecedented number of convictions against corrupt state lawmakers and dishonest financial traders. His office’s recent indictment of Sheldon Silver, the powerful former speaker of New York state’s Assembly, has added to Bharara’s prestige. He is viewed by the public and the media as a champion of honest and responsible government, a protector of the public trust, and the scourge of lawbreakers. It is therefore surprising that he would risk ethical criticism and possible censure by making gratuitous, demeaning, and prejudicial comments that could manipulate public and media opinion and ultimately prejudice juries that will hear cases he brings. He could not make such comments in a courtroom; a judge would stop him. But there is no judge to check his extrajudicial statements.
Consider Bharara’s comments at his press conference on Jan. 22 following Silver’s arrest on charges of bribery, extortion, and conspiracy. The complaint itself—a 36-page narrative containing an unusually detailed description of the crimes and vouching for the reliability of the government’s witnesses—went well beyond a recitation of the “essential facts” that the federal procedural rule contemplates. And the complaint charged Silver with crimes that he didn’t commit: two conspiracy counts that later were dropped from the indictment. The timing of the complaint was not a coincidence; it coincided with a speech Bharara was to give the following day at a local law school, to an audience that he knew would include media people who already had been saturated with his incendiary remarks through the complaint and its press conference. (Disclosure: An occasional co-author of mine, Joel Cohen, is one of Silver’s lawyers.)
Press conferences, as Bharara well knows, afford prosecutors a unique opportunity to inflame public passion. Indeed, Department of Justice guidelines warn federal prosecutors to use press conferences sparingly, to speak with “prudence and caution,” and to take “particular care to avoid any statement that would prejudice the fairness of any subsequent legal proceeding.” Federal and state ethical guidelines and directives uniformly recognize and condemn prejudice, which includes expressing subjective opinions about a defendant’s character and guilt. All trial lawyers, including Bharara, know that assailing a defendant’s character can potentially inflame public opinion against a defendant and ultimately prejudice a jury.
Nonetheless, in his press conference, Bharara vilified Sliver’s character and proclaimed his guilt. Bharara castigated Silver for “corruptly profiting from [the] tremendous personal fortune he amassed through the abuse of his political power.” He said Silver “quietly and cleverly figured out how to monetize his position as speaker,” “lied and misled the public about his outside income,” and made a “particularly egregious falsehood” about his outside income. Bharara claimed that “it would be hard to find a more blatant falsehood.” Bharara asked rhetorically—a question he said “many New Yorkers have also asked”—what Silver does to earn so much money. Bharara then answered the question himself: “He does nothing.” Many New Yorkers, Bharara claimed, also want to know how Silver could earn so much money without compromising his ability to serve his constituents. Bharara answered: “He didn’t,” observing that “the show-me-the-money culture of Albany has been perpetuated and promoted at the very top of the political food chain.”
Later, in a wide-ranging, two-part conversation with a reporter, Bharara made similar comments, stressing that Silver’s arrest was a “big deal,” going on to say that “when you see somebody who has basically sold his office to line his pockets and compromised his integrity and ethics with regard to how to make decisions that affect people’s lives, that’s a big problem. And it’s a big problem for democracy.”* Bharara acknowledged that his observations about Silver may have been said out of “frustration.” But Bharara is a prosecutor, and he should know better. He surely knows that expressing such an opinion would, in the language of federal and state ethics rules, create a “substantial likelihood” of prejudicing Silver’s ability to receive a fair trial.
In his law school speech the day after Silver’s arrest, Bharara went on the attack again. Some of his comments were a gratuitous discourse on the causes of public corruption—“an overabundance of greed, cronyism, and self-dealing.” Some of his comments ridiculed Silver’s role as the speaker in the Assembly. Bharara repeated his oft-cited “three men in a room” riff—Silver being one of the three—and described how the three run the state, like the “triumvirate in Roman times.” Bharara seemed to be having fun, at Silver’s expense, as he asked the audience rhetorically: “Why three men? Can there be a woman? Do they always have to be white? How small is the room that they can only fit three men? Is it three men in a closet? Are there cigars? Can they have Cuban cigars? After a while doesn’t it get a little gamy in that room?” Bharara continued to disparage Silver as one of the powerful “lucky three”—a person who “does not tolerate dissent,” “does not allow debate,” “does not favor change,” “does not foster reform,” and “keeps people in the dark.” After asking his audience whether this is the best way for government to work, he answered his own question: “I venture to guess that not a single person in this room disagrees with me.”
Bharara’s statements about Silver are not an isolated instance of overzealous oratory. A federal judge in an earlier case warned Bharara against making gratuitous and prejudicial extrajudicial comments. In his press conference two years ago announcing criminal charges against New York Assemblyman Malcolm Smith and New York City Councilman Daniel Halloran, Bharara stated that the case involved “an unappetizing smorgasbord of graft and greed,” that it represented a “show-me-the-money culture,” and that the defendants were “dirty” and “corrupt.” Reviewing these statements, federal district Judge Kenneth Karas observed that “it is hard to find that [these statements] had any compelling law enforcement purpose,” and that they appeared to be the kind of “subjective observations that the regulations eschew.” Prosecutors do not have a “blank check,” Karas cautioned, “to make any statements they might like about a case.” He reminded Bharara that “prosecutors should ensure that their public comments are carefully tailored solely to further valid law enforcement interests and to steer clear of violating a defendant’s fundamental right to a fair trial.”
Clearly, based on his comments about Silver, Bharara did not heed Karas’ admonition.
Reflecting on Bharara’s penchant for aggressive and inflammatory oratory, one is reminded of the famous dictum by President Theodore Roosevelt: “Speak softly and carry a big stick.” This utterance became the trademark description of how Roosevelt believed U.S. foreign policy should be conducted. But it could just as easily describe the ethical responsibility of a prosecutor. Prosecutors carry huge and powerful legal weapons and are authorized to use them aggressively to convict wrongdoers. They do not need to augment these awesome powers by irresponsible extrajudicial commentary that tarnishes their role to serve justice fairly and has the potential to destroy a defendant’s right to a fair trial.
Correction, March 5, 2015: This article originally stated that Bharara had a two-hour conversation with a reporter. It was a two-part conversation. (Return.)