U.S. Attorney's Office files motion to dismiss FOIA lawsuit seeking records of Preet Bharara's speeches

... "[P]ublic disclosure is not always in the public interest."

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Former U.S. Attorney Preet Bharara has complained about the lack of tansparency across New York Government. It is not known if he would make the same complaint about the U.S. Attorney's Office he once headed, which is now opposing the full release of records of speeches once given by Mr. Bharara when he was the top Federal prosecutor in Manhattan.

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Former U.S. Attorney Preet Bharara
"Transparency
for thee,
but not for me !"
-- Preet Bharara (metaphorically speaking)

Source : Louis Flores/Progress Queens/Photo Illustration

U.S. Attorney's Office, once supportive of transparency, now advocates against transparency.

By LOUIS FLORES

The U.S. Attorney's Office once headed by former U.S. Attorney Preet Bharara has filed a motion to dispose of the civil lawsuit commenced by the publisher of Progress Queens, seeking records of speeches given by former U.S. Attorney Bharara. The dispositive motion, which took the form of a motion for summary judgment, is the Government's typical method to end civil litigation over Federal open records requests. In 2016, the publisher of Progress Queens filed a request under the Freedom of Information Act, or FOIA, seeking four (4) categories of speech records of then U.S. Attorney Bharara after the press office serving the Federal prosecutors' office refused to release a transcript of a speech given by then U.S. Attorney Bharara behind the pay wall of a trade convention at a resort town. When the U.S. Department of Justice, the U.S. Agency in charge of the speech records, never answered the FOIA Request or an administrative FOIA Appeal, the publisher of Progress Queens filed the FOIA Lawsuit.

In the memorandum of law filed by the U.S. Attorney's Office, which represents the Agency, Assistant U.S. Attorney Rebecca Tinio argued, in relevant part, that the Federal open records law does not guarantee the public access to Government documents, noting that, " ... public disclosure is not always in the public interest." The Agency has released some, but not all, of the records that are known to exist. In the partial release of records that was made, it was shown that then U.S. Attorney Bharara delivered speeches that were hosted or sponsored, either actual or proposed, by law firms with white collar criminal defense practise groups. The publisher of Progress Queens has identified dozens of speeches or references to speeches for which no transcript and other, related records, have been released. In addition to the release of those speech records, the publisher of Progress Queens is seeking the further release of approximately 400 pages of records that the Agency has admitted that it has withheld in full or in part.

When the publisher of Progress Queens filed the FOIA Request, the publisher argued that, "Notwithstanding the prolific nature of U.S. Attorney Bharara’s speech-making, information about the dates and places for the numerous speeches given by U.S. Attorney Bharara are not completely known, and, importantly, complete audio or video recordings, or complete written transcripts, of those speeches are not publicly-available. Without this information, the public is unable to hear or read in U.S. Attorney Bharara’s own words the important work being done by his office. I make the following requests for information in hopes of filling that void."

That the U.S. Attorney's Office, which was formerly headed by Mr. Bharara, would oppose the public release of all of the speech records, marks a definitive reversal on the importance of Government transparency. In 2013, former U.S. Attorney Bharara gave a speech before the Citizens' Crime Commission in which he lamented the dearth of openness by the powers that be. ... "[T]here is a substantial transparency problem throughout New York government," then U.S. Attorney Bharara said, according to a transcript of his prepared remarks. In 2015, then U.S. Attorney Bharara was interviewed for a report published by The New York Times in which he urged citizens to consider information made publicly available during the corruption trials of former Assembly Speaker Sheldon Silver (D-Lower East Side) and former State Senate Majority Leader Dean Skelos (R-Rockville Centre) as revelations for a guidepost for reform, telling The New York Times, in part, that, "It would be, I think, irresponsible not to spend some time talking about what those things, what those trials, have taught us, and what those cases may mean for how everyone can get good government," he said, referring to the information presented at the trials. One day after The New York Times published its report, then U.S. Attorney Bharara spoke broadly during an interview on WNYC 93.9 FM about the "facts that were exposed at two detailed trials," referring to the corruption trials as having "laid bare" information about acts that two juries found to be corrupt.

At the last hearing of the parties, U.S. District Court Judge John Koeltl said that he scheduled the hearing, because the Agency had notified his Chambers of its intention to begin dispositive motion practise, communication that was not shared with the publisher of Progress Queens. The publisher of Progress Queens had requested the appointment of a new judge after the District Court judge had said at the Preliminary Conference of the parties that maintaining the reputation of the U.S. Attorney's Office would be a consideration in determining whether records would be released. When Chief U.S. District Court Judge Colleen McMahon refused to respond to the request made by the publisher of Progress Queens, the District Court judge decided not to recuse himself. In a brief filed in the appeal of the District Court judge's self-referential order, the publisher of Progress Queens alleged that the District Court judge was engaging in misconduct by subverting the correction of the transcript of the Preliminary Conference. The appeal filed by the publisher of Progress Queens is not the first time that the District Court judge was cited for conflicts of interest, bias against parties, or that his recusal was sought.

The memorandum of law, written by Assistant U.S. Attorney Tinio, was submitted in the name of the new top Federal prosecutor in Manhattan : U.S. Attorney Geoffrey Berman. Mr. Bharara, whose former office is blocking the full release of his speech records, is now a "distinguished scholar in residence" at New York University School of Law. Professsor Bharara, who forsakes no opportunity to earn money as a news analyst on the subject of public ethics, has avoided making any public statement about the suppression of his speech records. In the past, the U.S. Attorney's Office, then under his leadership, argued that former U.S. Attorney Bharara delivered speeches 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 case against former New York State Assembly Speaker Sheldon Silver (D-Lower East Side), 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.

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