Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law
By Preet Bharara
Knopf. 345 pp. $27.95
Preet Bharara first became well-known for his efforts to curb Wall Street corruption as U.S. attorney for the Southern District of New York. But it was only after he forced President Trump to fire him that he became a rock star. He was dismissed in March 2017 when he refused to provide his resignation, following an about-face by a new administration that had previously asked him to stay on as U.S. attorney.
Later, in the first episode of his popular podcast, “Stay Tuned With Preet,” he reflected on Trump’s apparent efforts to cozy up to him through repeated phone calls – something that, given the norms of Justice Department independence meant to shield prosecutors from political interference, Bharara had never experienced.
In his new book, “Doing Justice,” Bharara does not write explicitly about his conversations with Trump. But the president’s shadow hangs over the book, even when Bharara declines to use his name. “It was all a giant, gold-plated charade,” Bharara writes of one fraud defendant – a sentence that can’t help but conjure up visions of Trump Tower. A chapter on “Snitches” functions, at times explicitly, as a rebuttal to Trump’s complaints about the recent testimony of his former lawyer Michael Cohen, now cooperating with both special counsel Robert Mueller and Bharara’s old office. A chapter decrying brutality in interrogation is an odd fit, except in the context of Trump’s well-documented distaste for the rights of criminal suspects.
Bharara positions “Doing Justice” as a treatise on “the rule of law and faith in the rule of law” at a time when both are under threat. The contrast with Trump, and his contempt for the rule of law, is inevitable. Beyond simply rebutting the president, though, Bharara seeks to present the justice system Trump disdains as a source of inspiration for a healthier politics. His reflection on the role of the justice system in America is an effort both to make the inner workings of that system accessible to people unfamiliar with what criminal justice looks like from the perspective of law enforcement, and to suggest how people might apply ideals and habits honed in the courtroom to the patterns of everyday life.
Listeners of Bharara’s podcast will be familiar with the book’s tone: thoughtful, sincere, and not above a coy jab or a showman’s wisecrack. Like the podcast, “Doing Justice” takes questions about the mechanics of criminal justice as an opportunity to dig deeper into moral and political inquiries. The book is structured as a series of meditations on the different stages of a criminal investigation: “Inquiry,” “Accusation,” “Judgment” and “Punishment”-a conceit that could easily read as affected but that Bharara manages to pull off. He explores the various aspects of a prosecutor’s work through anecdotes from his time in the Southern District of New York and the careers of his colleagues there, from lighthearted (is it really worth prosecuting someone who sucks a subway token out of the slot with his or her mouth?) to deadly serious. Bharara’s tenure as U.S. attorney is primarily remembered for his work prosecuting insider trading and financial fraud, about which he writes at length and with pride. But he also returns again and again to the brutal conditions at the New York City jail on Rikers Island, about which his office released a damning report in 2014: “What may be needed” for the jail, he writes, “is to burn it to the ground and start over.”
The Southern District of New York has a reputation for thinking highly of itself, which Bharara cheerfully acknowledges and does nothing to dispel. (At one point he describes it as “the premier public law office in the country, if not the world.”) Despite what detractors might call arrogance, though, one of Bharara’s main themes is the fallibility of human judgment. The justice system, as he describes it, rests on discretion, but the nature of the world is such that some discretion will be abused, and even good-faith attempts to do the right thing will sometimes end poorly. “Every element of the law is dependent on the fateful choices of unpredictable and imperfect human beings,” he writes, “from the cops to the lawyers to the judges to the cooperators. It is the human factor that makes the attempt to deliver justice uncertain.”
Bharara emphasizes this in part by describing the nerves he felt while serving as U.S. attorney, humanizing the people who serve in a role of incredible power. More memorable, though, are his accounts of mistakes or close calls – or, more troubling still, cases in which there genuinely seems to be no right answer. Bharara is insistent that “the criminal justice system in any society necessarily implies a moral code,” and the length at which he dwells on the gaps and imperfections in the law suggests that to morally conduct the work of law enforcement also requires officials to always keep those imperfections in mind.
There is an echo of James Comey’s recent book “A Higher Loyalty” here: The impossibility of perfect judgment, even in good faith, seems to weigh on both Comey and Bharara. Like Comey, Bharara feels compelled to defend an aspect of his record that may be less than appealing to federal law enforcement’s new fans to the left of center. In Comey’s case, it was his decision to speak publicly about the status of the Hillary Clinton email investigation in July and October 2016; in Bharara’s case, it is his office’s decision not to prosecute the big banks in the wake of the 2008 financial crisis. Here, perhaps unavoidably, Bharara comes off as defensive – “neither I nor anyone I know was too afraid to prosecute rich men in suits,” he protests – and readers who begin the chapter disagreeing with his approach probably will not walk away with their minds changed.
Bharara wrote “Doing Justice” in part to “help people make sense of what has been happening in America,” he writes in the preface. Nowhere is this clearer than in his description of the criminal trial as a counterintuitive model for how to “search for truth and justice in our society as well”: Trials, he argues, “are object lessons in persuasion, truth, and even civility.” Unlike the president, “neither side is permitted to lie or misrepresent, to suggest truth isn’t truth.” In preparing to try a case, a prosecutor must take the time to understand the world from the perspective of the defense and the jury. “Failure to listen” to a witness or opposing counsel, Bharara writes, “is fatal and can do more than just embarrass you in federal court.”
In a seemingly a strange concession for a book that holds out the law as an animating vision of democratic life, Bharara acknowledges: “The law is not perfect.” But his point is that the system rests in the goodness of the people who run it, even though they’re fallible. At a time when the president routinely attacks the Justice Department as an organ of the malignant “deep state,” “Doing Justice” does its best to communicate what Bharara sees as the fundamental good faith of many law enforcement officials. The real interest and innovation of the book, though, is in Bharara’s effort to offer that model of engagement with the world as a political theory for his fellow citizens. In a cynical time, there’s something to be said for that kind of sincerity.