As Bharara questions DC integrity, U.S. Attorney's Office undermines FOIA to withhold records of Bharara's speeches

The nonpartisan nature of former U.S. Attorney Preet Bharara, which once earned him respect, has yielded to partisanship.

  • As a talking head on ABC News, former U.S. Attorney Bharara speculated that there was "absolutely evidence to begin a case" for obstruction of justice against President Donald Trump.

  • On the subject of possible illegality of former FBI Director James Comey's leaking of memoranda to the media, former U.S. Attorney Bharara said, "I'm not in the business of making legal pronouncements on what is -- what's legal or what's criminal anymore."

And the Federal prosecutors' office he formerly headed has acted to violate Federal open records laws to withhold the release of records of former U.S. Attorney Bharara's speeches.

By LOUIS FLORES

As new questions and complications arise about potential conflicts of interest and possible obstruction of justice in the Trump administration's handling of the reported investigation into possible Trump campaign collusion with Russian interests and senior staffing matters at the U.S. Department of Justice, former U.S. Attorney Preet Bharara has increased his participation with the very public conversation now taking place about reported legal controversies within the Trump administration.

When James Comey, Jr., the former director of the Federal Bureau of Investigation, was called to publicly testify before the Intelligence Committee of the U.S. Senate, former U.S. Attorney Bharara was provided a second row seat to the proceedings. When ABC News required the legal analysis of a talking head for its Sunday political talk show, former U.S. Attorney Bharara appeared last Sunday as the first guest of "This Week with George Stephanopoulos." And in the highly partisan back-and-forth that takes place over the Twitter social media network, former U.S. Attorney Bharara has fired off tweets that have questioned the decisions of Attorney General Jefferson Sessions III, who was briefly former U.S. Attorney Bharara's boss, and speculated about Attorney General Sessions' removal from office. Former U.S. Attorney Bharara's use of Twitter has attracted frequent media reporting and a large international following, due to his news-making commentary and his previous prosecutorial work, respectively.

An abandonment of nonpartisanship and a contradictory regard for ethics

The partisan nature of some of former U.S. Attorney Bharara's recent statements and social media posts have betrayed an image he once cultivated for being nonpartisan in his application of the law. During his tenure, the office of former U.S. Attorney Bharara prosecuted, and won convictions against, elected officials from the two main political parties, such as former New York State Assembly Speaker Sheldon Silver (D-Lower East Side) and former New York State Senate Majority Leader Dean Skelos (R-Rockville Centre). Former U.S. Attorney Bharara has leveraged his once nonpartisan image to provide legal analysis of reported legal controversies that have begun to bedevil the Trump administration. For example, based on Congressional testimony given by former FBI Director Comey, former U.S. Attorney Bharara said during a broadcast network news interview that he believed that there was "absolutely evidence to begin a case" for obstruction of justice against President Donald Trump.

Despite former U.S. Attorney Bharara's previous complaints about the lack of transparency in New York Government and his investigation of individuals that have impinged or threatened to impinge on free speech rights, the record of former U.S. Attorney Bharara's dedication to transparency now finds itself in the middle of Federal litigation over public records dispute. The publisher of Progress Queens commenced legal action to compel the U.S. Department of Justice to disclose four categories of records about the speeches of given by former U.S. Attorney Bharara, including records of transcripts, record retention policies and procedures, and costs and reïmbursements of costs for travel expenses. During an Initial Conference of the parties before U.S. District Court Judge John Koeltl, the Hon. Judge Koeltl said that protecting the reputation of the U.S. Attorney's Office would be a consideration in determining whether the requested records would be released to the publisher of Progress Queens, calling into question whether there is information in the requested records that Federal authorities want to keep secret. The FOIA litigation commenced by the publisher of Progress Queens seeking records of speeches by former U.S. Attorney Bharara is being defended by Assistant U.S. Attorney Rebecca Tinio. Because the nation's top Federal law enforcement agency refuses to comply with the Freedom of Information Act, the office former U.S. Attorney Bharara previously headed is now abetting a culture where Governments refuse to comly with open records laws.

Whereas Federal laws compel agencies to make public duly requested records under open records laws, the U.S. Department of Justice, and the various U.S. Attorney's Offices, which handle litigation on behalf of the Federal Government, have argued that they can comply with FOIA at their discretion, according to Court filings made in open records litigation cases filed by the publisher of Progress Queens. When the ABC News political talk show host George Stephanopoulos asked former U.S. Attorney Bharara if there was any illegality in the leaking to the press by former FBI Director Comey of memoranda, former U.S. Attorney Bharara said, "So I'm not in the business of making legal pronouncements on what is -- what's legal or what's criminal anymore. But I will say, it sounds like more of a distraction," according to a transcript of the interview. When former U.S. Attorney Bharara refused to offer an analysis about the legality of former FBI Director Comey's leaking of memoranda to the press via an intermediary, it appeared that former U.S. Attorney Bharara supported the politically-motivated leaking of Government documents at the sole discretion of senior Government officials, instead of an objective standard belief that Government documents should be made openly available to the public in furtherance of the transparency that he himself once advocated. And despite his claim that he was not in "the business of making legal pronouncements," that claim didn't stop former U.S. Attorney Bharara from speculating that there was "absolutely evidence to begin a case" for obstruction of justice against President Trump, raising questions about when former U.S. Attorney Bharara could abide by his own word. Thus far, the apparent duplicity on the part of former U.S. Attorney Bharara and the office he previously headed have not been reported about by the corporate-owned, mainstream media. But according to information obtained by Progress Queens, allies of President Trump are aware of this duplicity.

The duplicity extends over the lack of independence at the U.S. Department of Justice

After President Trump ordered a purging of Obama administration holdover appointments at the U.S. Department of Justice, former U.S. Attorney Bharara never outright challenged President Trump's discretion to shape the top Federal law enforcement agency according to his political worldview, thereby giving credibility to the purging. As reported by Progress Queens, U.S. Presidents have the discretion to appoint to office and to remove from office senior administration officials at the U.S. Department of Justice. However , such removals must be made in the public interest. See Parsons v. United States, 167 U.S. 324, 343 (1897). It's unclear how former U.S. Attorney Bharara can assert that officeholders within the U.S. Department of Justice could remain independent, as he once claimed for himself, if political considerations can be a factor in the determining senior law enforcement agency appointments. At the same time, in the face of former U.S. Attorney Bharara's self-proclaimed independence, it is unclear on what basis former U.S. Attorney Bharara can question the independence of senior Trump administration officials, such as Attorney General Sessions.

On the Zero Hedge alternative news Web site, former U.S. Attorney Bharara was described as "bitter" in a headline for a report about his appearance on the ABC News political talk show. As was noted in that report, "Since his firing, [former U.S. Attorney] Bharara has tried to position himself as a prominent figure in the anti-Trump 'resistance.'"

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