GAME’S NOT OVER YET
Preet Bharara: There’s a ‘Reasonable Likelihood’ Trump Will Get Indicted After He Leaves Office
The former U.S. attorney talks about the cases against the president, his new book on justice, and that famous phone call.
Preet Bharara talks on his podcast “Stay Tuned” and writes in his new book Doing Justice about principles—truth, fairness, ethics, integrity, equality —that seem quaint and abstract at a time when the president of the United States is a compulsive fabulist, wannabe autocrat, and unindicted co-conspirator in scandal about his hush money payment to a porn star.
Bharara was formerly the United States attorney for the Southern District of New York, where he had broad discretion for bringing criminal cases involving financial crimes, terrorism, mafia rings and murders. President Donald Trump held Bharara over from the Obama administration and then abruptly fired him when he stopped answering calls to his personal mobile phone that Bharara considered inappropriate.
Doing Justice, though, is not about Trump and isn’t a self-congratulatory memoir of Bharara’s years as one of the most powerful prosecutors in the country. It’s about those principles—truth, fairness, ethics, integrity, equality—as they presented themselves to him when he was a prosecutor and how he sees them mattering right now in through-the-looking-glass 2019.
Bharara sat down with The Daily Beast to talk about the new book.
I know you mostly from listening to your podcast, so I’ve been listening to the book on audio instead of reading it. Are you hearing a lot of that?
We were bullish on audio because of the podcast, and the audiobook sales have been off the chart. The hardcover debuted at No. 4 on the New York Times list, and the audiobook has done even better. A lot of fans of the podcast have told me that they listen to “Stay Tuned” or their Thursday commute and have been listening to the book on their other mornings.
The book is a combination of several things—memoir, practice guide for young prosecutors, meditation on principles and ethics, leadership book. Was your plan from the outset to include all of those things?
One outlet [The Guardian] called it “a metaphorical survival guide for the Trump era,” and maybe it’s a little bit of that also. I didn’t have any interest in writing a straight memoir. I wanted to explain and discuss issues of truth, evidence, justice, decision-making and moral reasoning. Instead of talking about those things in the abstract, I wanted to do it through various stories that I hoped would be illuminating and page-turning.
The federal courts in general and the Southern District of New York in particular have huge structural advantages over criminal defendants, and I was curious how you’d represent that in the book. How much in your work as a United States Attorney did you have to guard against those advantages?
Any individual or institution who has a lot of power has to be constantly vigilant to guard against overreach. Prosecutors have enormous discretion and authority. People make the point about the president having the authority to fire James Comey as head of the FBI, but that’s the beginning of the inquiry. You have to be deliberative and make judgments about doing the right things for the right reasons in the right way.
The priorities of a District Court reflect the priorities of the United States Attorney for that district, and I came away from the book thinking about that position more in policy terms than I did going into it. You came from Chuck Schumer’s office and from the policy world. Did you think of United States Attorneys as policy-makers?
Actually, I don’t. I think of them as by-the-book law people. To the extent that they’re engaging in policy, it’s only with respect to how they prioritize cases. They’re not engaging in an analysis of what the border policy should be or what tax policy should be or what the insider-trading laws should be. There are indirect policy consequences, but the job is to take particular cases with particular facts and particular defendants on their own merits.
What guided you, then, in looking for particular kinds of cases? Was it cases where you saw the greatest injustices? Cases where you saw under-prosecuted injustices?
There were hundreds of people prosecuting hundreds of cases when I got there, so I didn’t show up and say, “Hey, we should do some stuff.” New things came up like Faisal Shahzad, the Times Square bomber, but there’s a natural continuation of the work that the office does. A good institution has to appreciate two competing values: one is continuity of excellence, integrity, culture and doing the right thing, and the other is change.
One thing we changed when I got to the Southern District was allocating resources and training people to deal with cybercrime. Another was civil rights where we saw that the Americans with Disabilities Act was not readily enforced or complied with. And another was the conditions and how people were being treated in prison. Those were all areas where we saw injustice and areas where we could do something to make it better.
Those ideas about continuity and change apply to a lot of other institutions. There are a lot of questions about whether the way we choose Supreme Court justices should be changed, how voting districts should be apportioned, whether the Senate should eliminate the filibuster. Should we approach those things a certain way?
Any institution, whether it’s a prosecutor’s office or a university or a baseball team, should not do things the same way for the sake of continuity. Michael Lewis’s Moneyball opened people’s eyes to a lot of things about how to use science and data in baseball, but disrupting things for the sake of disruption can lead to losing valuable things. The trick is figuring out what to keep and value over time vs. what you change.
Can you watch Showtime’s Billions, or do the dramatization and little inaccuracies drive you nuts?
I can, but it’s highly fictionalized both professionally and personally.
You tell a story in the book about a fingerprint lifted from a terrorist bombing in Spain and the fingerprint of a Muslim man from Oregon that “mirrored each other to a stunning degree.” It wasn’t him [the same man], and you call it a case of confirmation bias. That strikes me less as confirmation bias than the diligent investigation of a lead that didn’t pan out.
I think it’s both. There was obvious confirmation bias where multiple people didn’t go back and revise their initial conclusions when facts cast doubt on that conclusion and instead relied on the facts that Brandon Mayfield had married a Muslim woman, converted to Islam, and as an attorney had represented someone with links to terrorism.
You can weed out a lot of the people doing their jobs in bad faith. The more difficult situation is people who are doing their jobs in good faith but maybe aren’t quite careful enough or rigorous enough and don’t recognize their own biases. That can lead to the same bad outcome as the corrupt officer who plants the gun or lies about a witness.
Do you think the incentives are in the right place for United States Attorneys to put doing the right thing ahead of getting the conviction?
I think it’s important for the Attorney General and the U.S. Attorneys to make sure that the incentives are right. If you have a culture that only rewards how many people you indict or how many people you convict or how long you send them to prison, that’s a problem.
If you give people the wrong incentive, they will take it. We would announce verdicts at quarterly meetings with every single prosecutor and investigator in the room, and we would talk through what happened in each case whether it was a conviction or an acquittal. We didn’t treat acquittals as a professional failure or dishonor; sometimes juries just didn’t see a case the same way we did.
You didn’t have a culture of corporate earnings reports where you’re supposed to have more convictions every quarter.
Right, and I think corporations could learn something about that too. When Wells Fargo incentivized opening accounts, some employees couldn’t resist the urge and opened thousands of fake accounts. If you reward employees based on how many loans they approve, they’ll approve a lot of loans. That’s where disaster will strike.
When you were a United States Attorney, Donald Trump asked you for your mobile number. Did the context of that imply why he may have wanted your personal number?
No, but I thought it was odd. The only other people in the room were Jared Kushner and Steve Bannon. I complied with the request and gave him my number.
Considering everything you know now, why do you think he wanted your personal number?
He called me three times, and the third time I didn’t call him back. He never said anything untoward or asked me to bring a case or not bring a case, but he seemed to want to cultivate some relationship, to have someone in a spot to be helpful to him.
Donald Trump was pretty clearly the unindicted co-conspirator in the guilty plea that sent Michael Cohen to prison. I won’t ask you what people in the know may have told you, but how likely likely is it that the Southern District or the State of New York will indict Trump after he leaves office?
I don’t know. My former office clearly endorses and believes the fact—as Michael Cohen admitted in open court—that he engaged in the conduct he pleaded guilty to at the direction of Individual 1. Individual 1 is the president. Depending on what the other circumstances are, I believe there’s a reasonable likelihood that they would follow through on that. There’s a difference, though, between accepting a guilty plea from Michael Cohen and going to trial on the strength of that same witness after he’s gone to prison for lying.
Do you expect that the Justice Department’s characterization of the Mueller Report won’t actually have much of an effect on how the various investigations of Donald Trump and the Trump campaign will proceed?
It will be harder to shut down other investigations where the attorney general doesn’t have a tight leash on them. In the Southern District of New York, the Eastern District of Virginia, the D.C. District and other courts, I would expect things will unfold in the natural course.
Have you thought about running for governor of New York?
[Laughs.] As I have said many times, elective office is not my cup of tea. I love public service and there are ways I could serve in the future, but I’m not interested in running for office and raising money in the terrible system we have now.
Would you want to return to the Southern District of New York or to the Justice Department for a future president?
Right now I’m selling a book. [Laughs.] If there are future opportunities, I’ll take those on a case-by-case basis.