DOJ seeks to begin dispositive motion practise after incomplete FOIA release of Preet Bharara's speech records

Law firms, such as Orrick, which have large practise groups dedicated to white collar criminal defense and securities litigation, have been hosts or sponsors, either actual or proposed, of former U.S. Attorney Preet Bharara's speeches.

Some of the hosts or sponsors, actual or proposed, of former U.S. Attorney Preet Bharara's speech-making engagement have included large law firms, such as Orrick, which have large white collar criminal defense, securities litigation, and compliance practice groups.  Source : U.S. Department of Justice/Progress Queens/Public Domain

Some of the hosts or sponsors, actual or proposed, of former U.S. Attorney Preet Bharara's speech-making engagement have included large law firms, such as Orrick, which have large white collar criminal defense, securities litigation, and compliance practice groups.  Source : U.S. Department of Justice/Progress Queens/Public Domain

By LOUIS FLORES

Despite a request made by the publisher of Progress Queens for U.S. District Judge John Koeltl to be replaced based on concerns over judicial bias, the Hon. Judge Koeltl has summarily scheduled a Court Conference for Thursday morning in a civil proceeding commenced by the publisher of Progress Queens against the U.S. Department of Justice, or DOJ, seeking the Agency's compliance with the Freedom of Information Act, or FOIA.

The publisher of Progress Queens had made a request to Chief U.S. District Judge Colleen McMahon, requesting the appointment of a new judge, should the DOJ seek to begin dispositive motion practise. In the time since the publisher of Progress Queens made the request for the appointment of a new judge, the DOJ has announced its intent to dispose of Progress Queens' FOIA Lawsuit. The Hon. Chief U.S. District Judge McMahon has not responded to the request made by Progress Queens. When asked by the publisher of Progress Queens what was the Court's response to the request for a new judge, Don Fletcher, an associate of the Hon. Judge Koeltl's chambers, informed the publisher of Progress Queens that the Hon. Judge Koeltle was "still the presiding judge" and that the publisher of Progress Queens had to take the matter up with the Chief U.S. District Judge.

The FOIA Lawsuit seeks the full release of former U.S. Attorney Preet Bharara's speech records. During litigation, some records have been released, even though approximately 400 pages of documents are known to be redacted or withheld, no transcripts have been released for dozens of speeches or references to speeches, and no Vaughn Index has been released to account for unreleased records.

The publisher of Progress Queens sought a new judge to be assigned to the FOIA Lawsuit, because, at the Initial Conference of the parties, the Hon. Judge Koeltl announced that one factor he would consider before ordering the Defendant to release records or to comply with FOIA would be protecting the reputation of the U.S. Attorney's Office. In recent weeks, New York prosecutors have come under fire for managing the affairs of prosecutors' office despite the appearance of conflicts of interest. For example, District Attorney Cyrus Vance, Jr. (D-Manhattan) has announced a suspension of his campaign donation fundraising and a review of his campaign finance activities after a tripartite report by Pro Publica, The New Yorker, and WNYC 93.9 FM raised questions about why District Attorney Vance dropped an investigation into the real estate sales tactics of some of the children of President Donald Trump (R) after the attorney representing the Trump children made large campaign donations to District Attorney Vance's camapign committee. It was separately revealed that District Attorney Vance accepted campaign contributions from the law firm and its partners representing Mayor Bill de Blasio (D-New York City) in the before District Attorney Vance closed the reported wide-ranging corruption investigation without pressing any charges, according to a report published by The New York Daily News. Additionally, Assemblymember Dan Quart (D-Manhattan) has announced his intent to introduce legislation to restrict the amount of campaign contributions that District Attorneys may accept from lawyers with private criminal defense practises, according to a report published by The New York Daily News.

Although District Attorneys must raise money to run for public office and must seek the political support of Democratic County committees in New York City, U.S. Attorneys heading the Federal prosecutors' offices do not need to raise money to win public office, but there is an element to winning the position that involves manage relationships with the President and with the President's key political supporters. In 2010, President Barack Obama (D) appointed then-Orrick partner Melinda Haag to become the U.S. Attorney for California's northern district. After serving as U.S. Attorney for five years, Ms. Haag returned to Orrick.

A review of some of the records released by the DOJ in response to the Progress Queens FOIA Request has showed that large law firms with criminal defense practise groups have sponsored speeches given by former U.S. Attorney Bharara. For example, Orrick, a large law firm with a significant white collar criminal defense practise group, was identified as a one-time location for a speech expected to be given by former U.S. Attorney Bharara, according to a heavily-redacted e-mail exchange between unidentified individuals. The speech was being sponsored by the North American South Asian Law Students Association, or NASALSA. The NASALSA event was moved from Orrick's offices to Stanford Law School, according to an e-mail discussing the speech's arrangements. The FOIA Responses by the DOJ included a questionnaire for the event, but there was no transcript or recording of the speech included in the FOIA Responses. In the past, the U.S. Attorney's Office for New York's southern district has recruited former Orrick attorneys, including Marc Berger.

Separately, a speech given by former U.S. Attorney Bharara at NYU School of Law was sponsored by the law firm Milbank, Tweed, Hadley & McCloy LLP, a law firm with a white collar criminal defense practise group, according to a YouTube video of the speech found on the Internet. No reference was made to the Milbank speech at NYU School of Law in the records provided by the DOJ's FOIA Responses, according to a summary chart prepared by Progress Queens.

For months, Progress Queens has been attempting to reach a settlement to a Federal lawsuit seeking the release of four categories of speech records of former U.S. Attorney Bharara. The attorney representing the DOJ is Assistant U.S. Attorney Rebecca Tinio from the U.S. Attorney's Office for New York's southern district.

Since leaving office, former U.S. Attorney Bharara has seemingly "cashed in" on his Government experience. When there's money to be made, podcasts and interviews of former U.S. Attorney Bharara can be easily found on the Internet. But records, particularly transcripts, of all of the speeches given in former U.S. Attorney Bharara's official capacity as the former top Federal prosecutor in Manhattan, cannot be accounted for, even though they are deemed Federal records, in accordance with the Federal Records Act, because they were created in the conduct of Agency business. After former New York State Assembly Speaker Sheldon Silver (D-Lower East Side) was arrested on Federal corruption charges, the U.S. Attorney's Office argued that former U.S. Attorney Bharara's prolific speeches were given in his official capacity. "It is squarely within the role and duty of the U.S. Attorney, as the chief [F]ederal law enforcement officer in this district, to speak out about the causes of public corruption and potential means of combating it," read a prosecutorial filing in the Silver case, according to a report published by The New York Daily News. In a separate report of the prosecutorial filing, published by The New York Times, the U.S. Attorney's Office described former U.S. Bharara's speech-making as "consistent with the stated mission" of the DOJ. Progress Queens has identified over 100 speeches or references to speeches for which the U.S. Attorney's Office has failed to explain the lack of records.

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