Judge Koeltl shows bias, makes misrepresentations, begins to put in fix on FOIA lawsuit over Bharara's speeches

By LOUIS FLORES

U.S. District Court Judge John Koeltl, who has a history of putting in the fix on controversial cases, made a misrepresentation and may have violated civil procedure during a Court Conference on Thursday in a civil lawsuit filed by the publisher of Progress Queens, seeking the release of speech records of former U.S. Attorney Preet Bharara. The misrepresentation made by the Hon. Judge Koeltl was that he denied having said he would show preferential treatment to the U.S. Attorney's Office, contradicting an earlier statement he made during an Initial Conference of the parties last spring.

At the Court Conference on Thursday, the Hon. Judge Koeltl denied a request made by the publisher of Progress Queens that was addressed to Chief U.S. District Court Judge Colleen McMahon, asking that the Hon. Judge Koeltl be replaced due to a reasonable expectation that he has demonstrated judicial bias against the publisher of Progress Queens. At the Initial Conference of the parties, the Hon. Judge Koeltl stated that he would consider protecting the reputation of the U.S. Attorney's Office formerly headed by Mr. Bharara, as one factor before ordering the Defendant in the lawsuit, the U.S. Department of Justice, or DOJ, to comply with the Freedom of Information Act, or FOIA, or to release records sought by the lawsuit. The lawsuit was filed after the DOJ did not release records or answer an administrative appeal under FOIA. The publisher of Progress Queens had filed a FOIA Request seeking the release of four (4) categories of records of speeches by former U.S. Attorney Bharara.

At Thursday's Court Conference, the Hon. Judge Koeltl announced his intention to set a briefing schedule to allow the Defendant to commense dispositive motion practise, causing the publisher of Progress Queens to object, but the Hon. Judge Koeltl announced that the case before him had not been stayed ; as such, he was going to allow the Government to dispose of the lawsuit. The Hon. Judge Koeltl said that the Court Conference was scheduled after the U.S. Attorney's Office made a motion to his chambers to begin dispostive motion practise, communication that had been denied to the publisher of Progress Queens. When the publisher of Progress Queens requested transcripts of the Initial Conference of the parties and of Thursday's Court Conference, so that the publisher of Progress Queens could appeal the decision not to replace the Hon. Judge Koeltl, the Hon. Judge Koeltl directed the U.S. Attorney's Office, which is acting as defense counsel and which was formerly headed by U.S. Attorney Bharara, to order the transcripts, allowing the Government to control the transcriptions, even though the publisher of Progress Queens made the request for the transcripts and even though the publisher of Progress Queens is the opposing party to the Government in the civil litigation. Don Fletcher, the courtroom case manager for the Hon. Judge Koeltl, confirmed to Progress Queens that the transcripts would be "corrected" before they would be provided to Progress Queens.

The Court Conference on Thursday began after the Hon. Judge Koeltl made the parties wait for 30 minutes without explanation, and, after Assistant U.S. Attorney Rebecca Tinio, the lawyer representing the DOJ, left the courtroom, the Hon. Judge Koeltl attempted to have a conversation with the publisher of Progress Queens outside the presence of the Government's attorney, at which point the publisher of Progress Queens said that it would not be appropriate to have such a conversation with the Government's attorney being present.

The Hon. Chief U.S. District Judge McMahon's unexplained silence in face of allegations of the Hon. Judge Koeltl's bias

Even though the publisher of Progress Queens had explained to the Hon. Chief U.S. District Court Judge McMahon how the Hon. Judge Koeltl had shown a reasonable expectation that he would be biased against the publisher of Progress Queens, the Hon. Chief U.S. District Court Judge McMahon has remained silent in the face of questionable jurisprudence by the Hon. Judge Koeltl.

In the past, the Hon. Judge Koeltl has been accused of exhibiting judicial bias by acting as defense counsel for some parties before his courtoom, including on behalf of Yeshiva University, according to a 2014 report published by The New York Daily News. In a subsequent report, also published by The New York Daily News, the Second Circuit, the Federal Court that oversees appeals from the U.S. District Court for New York's southern district, was described as a "kangaroo court" for not overturning the Hon. Judge Koeltl's decision in the Yeshiva University case. The appeal sought to reïnstate the case after the Hon. Judge Koeltl ruled the expiration of the statute of limitations prevented students from seeking justice for alleged sexual abuse.

Advocates for social justice have also been critical of the Hon. Judge Koeltl for arguably sending activist attorney Lynne Stewart to an early grave after he inexplicably increased her prison sentence following a request by the Government.

Why is the Court showing bias and violating civil procedure ?

Whilst in office, then-U.S. Attorney Bharara was a prolific maker of speeches. Some of them were considered public, because recordings of the speeches were posted on social media sites, like YouTube, but many of the speeches were either private or made behind the paywalls of trade conventions or in private settings, described to include audiences from banks, hedge funds, and universities. A review of information provided by the DOJ in response to the FOIA Lawsuit revealed that over 100 speeches or references to speeches exist, but the DOJ has not released any transcript or recording for such speeches, or explained whether references of speeches actually occurred. A further review of some of the records provided in the DOJ's FOIA Responses indicate that some of the speeches were hosted or sponsored, either actual or proposed, by law firms with large white collar criminal practise groups, such as Orrick and Milbank, Tweet, Hadley & McCloy LLP, which may represent clients in cases being investigated or prosecuted by the Federal prosecutors' offices in New York City. In the past, Progress Queens published an editorial that was critical of then-U.S. Attorney Bharara attending social functions also being attended by some of the same industry and political officials that his office was investigating or reportedly investigating, noting that then-U.S. Attorney Bharara appeared to be fraternising with at least one official with the de Blasio administration, Jerika Richardson. (The photograph that showed the meeting between then U.S. Attorney Bharara and Ms. Richardson was later removed from Instagram.)

In the immediate fallout of the arrest of then-Assembly Speaker Sheldon Silver (D-Lower East Side), then U.S. Attorney Bharara was asked during a speech that was recorded and posted online by New York Law School about the lack of corruption cases being brought by County prosecutors, specifically District Attorney Cyrus Vance, Jr., (D-Manhattan). In response, then U.S. Attorney Bharara said, in relevant part, that, "The Manhattan District Attorney and I get along very well, and he’s, I think, a terrific prosecutor and has done a lot of important cases." In recent weeks, news reports have shown that District Attorney Vance has closed major criminal investigations at the same time when criminal defense attorneys or their law firms or their law firm partners have made large donations to District Attorney Vance's campaign committee. The pattern of the exchange of donations and the closing of investigations was noted in respect of the wide-ranging corruption investigation into the campaign finance activities of Mayor Bill de Blasio (D-New York City), according to a report published by The New York Daily News. The apparent conflicts of interest have generated controversy over the appearance that County prosecutors engage in transactions with criminal defense attorneys. 

Whilst in office, then U.S. Attorney Bharara earned accolades for his deft management of the media in portraying his office as leading the charge against Government and corporate corruption. Despite that media narrative, an analysis conducted by Progress Queens showed that a theoretical rebalancing of prosecution cases solely based on jurisdiction between the Manhattan and Brooklyn Federal prosecutors' offices would have resulted in a tie for major public corruption cases between both offices, meaning that the Brooklyn Federal prosecutors' office was quietly working at near par with the Manhattan Federal prosecutors' office -- without the benefit of a matching media campaign.

As the nation's top Federal prosecutor in Manhattan, former U.S. Attorney Bharara prosecuted two difficult public corruption cases against former Assembly Speaker Silver and former New York State Senate Majority Leader Dean Skelos (R-Rockville Centre). However, both cases were later overturned on appeal. The office of former U.S. Attorney Bharara also received widespread media attention for investigating the premature closing by Gov. Andrew Cuomo (D-New York) of an anti-corruption panel, referred to as the Moreland Commission. However, that investigation was dropped without the pressing of any charges. Instead of applying Federal racketeering laws against political bosses and lobbyists, the Manhattan Federal prosecutors' office chose, instead, to apply RICO laws against individuals alleged to have engaged in low-level crimes, such as residents of public housing developments in New York City.

Since being removed from office by President Donald Trump (R), former U.S. Attorney Bharara has signed a reported seven-figure book deal, and he now serves as a talking head for cable and online news networks. Despite all of former U.S. Attorney Bharara's talking points about holding public officials accountable regardless of political party, now that former U.S. Attorney Bharara no longer holds public office, he has show a political bias for the Democratic Party, causing him to lose credibility amongst Government reform activists in New York, who previously believed that former U.S. Attorney Bharara was above petty political partisanship, according to information received by Progress Queens.

The Government's move to dispose of the FOIA Lawsuit came after repeated attempts were made by the publisher of Progress Queens to settle the case. For example, it was a key condition of the publisher of Progress Queens that the U.S. Attorney's Office make proactive disclosures under FOIA of speeches made by the top Federal prosecutor for the Manhattan Federal prosecutors' office. According to information obtained by Progress Queens, the U.S. Attorney's Office has a policy of livestreaming press conferences. However, it is not known what policy exists, if any, to govern the release of a transcript or recording, of speeches delivered privately. The announcement or release of a policy for privately-given speeches would help in achieving a settlement in this case, but Assistant U.S. Attorney Tinio has resisted engaging in such a reform, even though documents or records created in the official capacity of top Federal prosecutors automatically become Federal records, which would subject such records to regulations under FOIA. Because former U.S. Attorney Bharara has managed to monetise his official acts as the former top Federal prosecutor in Manhattan by virtue of his book deal and media consulting, there is a financial incentive for former U.S. Attorney Bharara to retain exclusivity to his speech records, even though records of his speeches are Federal records and would be subject to regulations, including disclosure, under FOIA.

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