Why Trump would personally ask Preet Bharara to stay on as U.S. attorney, then fire him
In one important sense, the request late last week from Attorney General Jeff Sessions that all 46 Obama U.S. attorneys remaining in office resign immediately, is no big deal. After all, a necessary part of the President’s authority to appoint the chief federal prosecutor in each of our 94 federal districts is the power to get rid of them, too.
Not that there isn’t a better way to go. In 1977, for example, New York Senators Daniel Patrick Moynihan and Jacob Javits — members of opposite parties — agreed that each would allow holdover U.S. attorneys in New York to serve out their four-year terms even when the White House changes parties. The goal was to lessen the taint of politics in what must always be professional decisions based on the facts, the law, and ethical constraints. Although they are in one sense, representatives of the President and his Department of Justice in the field, U.S. attorneys very much have an independent role in deciding how to proceed with cases — a role that is only strengthened when they are allowed to serve without fear of being fired at any moment.
The Moynihan-Javits practice was not uncommon around the nation at the time, until President Clinton in 1993 changed course by requesting that the vast majority of holdover U.S. attorneys resign. Both New York City-based prosecutors when Clinton took over had previously resigned of their own accord, so no New York U.S. Attorney was affected by administration turnover until President Bush asked then-U.S. Attorney Loretta Lynch of Brooklyn, and all but a handful of the other U.S. Attorneys, to resign during his first year in office. Sen. Schumer’s pleas to the President at the time fell on deaf ears: “Allowing U.S. Attorneys to serve out their terms has the great benefit of reducing the role politics plays in the administration of justice in our federal courts.”
So let’s stipulate that, although not ideal, it’s the President’s prerogative to replace U.S. Attorneys and shouldn’t be cause for concern. But what truly raised eyebrows is that President Trump had, during his transition, reportedly singled out one U.S. Attorney, Manhattan’s Preet Bharara, and asked him to stay on. Bharara has now been cast out — what might be going on here?
One explanation for President Trump’s actions is that Bharara, who had already forged a reputation for independence in the Obama era, would be practically 100% independent under Trump. After all, if Bharara were to be ordered not to pursue an investigation unpopular with the administration, and then either refused or resigned in protest, it would be an act worthy of a Profiles in Courage award for him, and a sticky wicket for the administration. He would also, if he so chose, to be able to wear it as a political badge of honor.
Viewed through that lens and the political perspective of Trump’s advisors, the President did the right thing by including Bharara along with the others, notwithstanding any previous promise. From a purely political guise, better to rip the Band-Aid off now than to have to face the choice in a year or two when Bharara might in fact be conducting an investigation that the administration doesn’t welcome.
What does Bharara’s dismissal mean for the subjects of Bharara’s high-profile pending investigations? If he leaves, should they celebrate? Probably not. Often lost in the discussion of the politics of selecting or firing top prosecutors is the strong culture in most U.S. Attorneys offices, including the Southern District, to follow cases wherever they lead, without fear or favor. It may come as a surprise to many in our hyper-partisan age that the Southern District, under the Acting U.S. Attorney or even a future appointee, is likely to continue right along with its pending investigations into New York’s City and State governments and follow them where they might lead.
Is that guaranteed? Of course not. Like the President’s power to fire a U.S. attorney at any time, the Justice Department’s power to bring or not to bring charges is well-recognized and is not legally subject to challenge. So although a new U.S. Attorney could radically change course, that would be without modern precedent in New York (even Rudy Giuliani, who favored the media more than most, carried on the office’s previous traditions).
But unlike Preet Bharara, had he really been allowed to stay on, the new U.S. attorney will be the administration’s person in New York, and will be beholden to the Attorney General and the President in a stronger way than Bharara. And different perspectives can definitely alter prosecutorial policy and even the course of particular cases.
Alonso, a managing director of the global investigations and compliance firm Exiger, spent nine years as an assistant U.S. attorney in Brooklyn, the last three as chief of the Criminal Division.
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