skelos legal team letter to court

Case 1:15-cr-00317-KMW Document 41 Filed 10/14/15 of 4

The Honorable Kimba M. Wood October 14, 2015

2

That same afternoon, the United States Attorney appeared at New York

University Law School for a public lunchtime forum.2 During the forum, the moderator stated

the following: “[n]ow speaking of the papers, your name appears in them with some frequency. .

. . So, some of your critics have suggested that you might overuse the media, the press. That

there’s some line of propriety in terms of how much a prosecutor ought to be talking about cases

just filed, about cases pending in any way, or even about issues not having to do with pending

cases and that wherever that line is, you’re on the other side of it. So that’s the criticism.”

(Transcript at 15).

The United States Attorney responded by stating, “[a]nd the interesting thing

about, generally speaking, the criticism that arises of that nature, doesn’t arrive in garden variety

cases. It often arises in cases where people have very, very, very sophisticated and high priced

lawyers, who can afford to make accusations like that. And then there’s a forum for them to

litigate them, and then you know, if they’re correct, then someone will find that to be so. That

criticism never arises, interestingly, in the K2 [synthetic marijuana] context, right? Or in the

gang context. . . . And when prosecutors and local DAs walk around and they talk about how

education is important, nobody ever says, ‘What are you doing? You’re overstepping your

bounds.’ Because that would be ludicrous. And so I think that same principle doesn’t just apply

when you are talking about street crime. . . . So interestingly, and I think the criticism you’re

talking about arises in the public corruption context, I don’t frankly get why it’s different in the

public corruption context, especially when those crimes go to the heart of democracy, and

everybody, whether you’re a prosecutor or a defense lawyer, whether you work in blue collar job

or a white collar job, whether you’re old enough to vote or not, those people’s decisions affect

your lives and they make decisions about what kind of taxes you pay, they make decisions about

who goes, speaking of incarceration, who goes to jail, who doesn’t, for how long, whether our

jails are properly monitored or not. And so to answer questions about why it’s happening, why

is there corruption in Albany or the city council or anywhere else? And what ordinary people can

do to make it better and to raise public awareness of this problem, I think is completely

appropriate and I think I would be, in some ways, remiss if I didn’t talk about those things.”

(Transcript at 17-18)(emphasis added).

The following day, online stories were published about the United States

Attorney’s NYU remarks, including one titled “Bharara says it’s his ‘obligation’ to discuss

public corruption.”3 The article reported, “[w]hen asked about the high-profile corruption cases

he’s brought against officials like now former Senate Majority Leader Dean Skelos and

Assembly Speaker Sheldon Silver, the talk quickly shifted to criticism of Bharara’s office’s

public handling of the cases, which had led the judge in Silver’s case to chide the prosecutor.”

2 For the Court’s convenience, an unofficial transcript of the forum is attached hereto as Exhibit

B (hereinafter “Transcript”). The video can also be found at

https://www.youtube.com/watch?v=zZ-2tO92XcA&feature=youtu.be.

3 Jon Campbell, Bharara says it’s his ‘obligation’ to discuss public corruption, POLITICS ON THE

HUDSON, Oct. 8, 2015, http://polhudson.lohudblogs.com/2015/10/08/bharara-says-its-his-

obligation-to-discuss-public-corruption/.


https://www.youtube.com/watch?v=zZ-2tO92XcA&feature=youtu.be

http://polhudson.lohudblogs.com/2015/10/08/bharara-says-its-his-obligation-to-discuss-public-corruption/

http://polhudson.lohudblogs.com/2015/10/08/bharara-says-its-his-obligation-to-discuss-public-corruption/

The Honorable Kimba M. Wood October 14, 2015

3

The reporter then picked up the United States Attorney’s observation that the criticism often

arose only in cases “involving ‘very, very, very sophisticated and high priced lawyers’ ‘who can

afford to make accusations like that.’”

Discussion

The United States Attorney’s recent comments at NYU seriously prejudice

defendants Dean and Adam Skelos because they: (1) continue a pattern of extra-judicial

statements that presume guilt by elected officials, thereby taking away defendants’ constitutional

rights to a presumption of innocence and fair trial; and (2) undercut defendants’ legal arguments

by improperly suggesting that they are nothing more than legal maneuverings of “high-priced”

lawyers.

There is little doubt that the government’s pending public corruption cases,

including the case against Senator Skelos, was a central topic of interest at the Forum and

something that the United States Attorney felt free to discuss, notwithstanding Judge Caproni’s

decision regarding his extra-judicial statements in connection with the arrest of then Assembly

Speaker Sheldon Silver. See United States v. Silver, No. 15-cr-93, 2015 U.S. Dist. LEXIS 47194

(S.D.N.Y. Apr. 10, 2015). Both the moderator and United States Attorney referred repeatedly to

“public corruption” cases, and the press reporting on the forum also picked up on the connection.

(See Transcript at 11, 12, 13, 14, 15, 18, 35).

In this regard, the moderator asked the United States Attorney what he “thinks

about the relationship between the sort of individual prosecution decisions and “a systemic

problem like corruption?” (Transcript at 12)(emphasis added). After talking generally for a few

moments about the need for deterrence, the United States Attorney stated, “[i]f you hold people

accountable, great, but if you haven’t done something to try to make the problem better, then

that’s not a great situation, and I think that’s true in public corruption.” (Transcript at 13).

Without ever distinguishing between pending cases and past convictions, the United States

Attorney added, “[s]o part of what you do is you make sure that everyone understands why you

brought those prosecutions, and you make other, similarly situated people understand, hopefully,

that ‘I don’t want to be in the position of that person who just got hauled away, and whose life

has been ruined because of intentional conduct that harmed people, what they did.” (Transcript

at 14). By improperly suggesting that the government only “hauls off” public officials after they

have committed in his words, “intentional conduct that harmed people,” the United States

Attorney undercut the presumption of innocence in Senator Skelos’s case.4

The United States Attorney’s October 7, 2015 statements raise an additional

concern here because they appear to address the propriety of the Rule 6(e) motion that is pending

before Your Honor. By suggesting that motions attacking the government’s misuse of the press

4 These remarks create the same concerns identified by Judge Caproni in her decision, dated

April 10, 2015. Silver, 2015 U.S. Dist. LEXIS 47194, at *16 (“the court is troubled by remarks

by the U.S. Attorney that appeared to bundle together unproven allegations regarding the

defendant with broader commentary on corruption and a lack of transparency in certain aspects

of New York State politics.”)


EXHIBIT A

Case 1:15-cr-00317-KMW Document 41-1 Filed 10/14/15 Page 1 of 2

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Sen. Dean Skelos wants judge to holdhearings into alleged grand juryleaksOctober 7, 2015 By JOHN RILEY [email protected]

State Sen. Dean Skelos (RRockvilleCentre), Long Island's highestrankinglegislator and majority leader of theSenate, is the focus of a federalinvestigation into allegations of corruption.Above, Skelos in July 2012. (Credit:Newsday / Alejandra Villa)

Lawyers for state Sen. Dean Skelos said in anew court filing that senior officials in the U.S.attorney's office in Manhattan should berequired to submit affidavits about their role inleaks of information about the corruption caseagainst the Nassau County Republican.

Skelos has asked U.S. District Judge Kimba Wood to hold hearings into alleged grand jury leaksbefore his November trial, and argued in his latest papers that denials in affidavits from fiveprosecutors, four FBI agents and two investigators weren't enough.

Since U.S. Attorney Preet Bharara himself publicized the case, the lawyers said, Wood shouldrequire a "broader" range of denials covering "senior officials at the U.S. attorney's office andFBI."

Skelos defense lawyers say any grand jury violations could lead to suppression of evidence ordismissal of counts, one of several pretrial motions they have filed. Prosecutors say no mattersbefore the grand jury were leaked by government attorneys.

Former Senate Majority Leader Skelos is accused of using his power to do favors for adeveloper, an environmental technology company and a malpractice insurer in return for jobsand fees for his son, Adam, who is also charged.

< back to article

http://www.newsday.com/longisland/nassau/sendeanskeloswantsjudgetoholdhearingsintoallegedgrandjuryleaks

1.10933860


http://www.newsdayreprints.com/

http://www.newsdayreprints.com/

mailto:[email protected]?subject=newsday.com

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http://www.newsday.com/long-island/nassau/sen-dean-skelos-wants-judge-to-hold-hearings-into-alleged-grand-jury-leaks-1.10933860

EXHIBIT B


212-400-8845 - [email protected] Legal Solutions

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1 The Forum A Conversation with US Attorney Preet Bharara

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3 Gage Spencer & Fleming LLP

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1 Dean Trevor Morrison: Good afternoon! Welcome. It's great to see

2 all of you here, and we are thrilled to have with us for this

3 week's forum Preet Bharara, the U.S. Attorney for the Southern

4 District of New York. Preet, thanks for joining us. You got one

5 "woo".

6 Preet Bharara: I know.

7 Dean Trevor Morrison: That may have been planted, we're not

8 sure. So Preet is known to all of us, and I won't take too much

9 time in the limited time we have with an extended introduction,

10 but he has of course had and is in the midst of having a

11 spectacular career of public service to be sure that has had

12 many elements. It started with several years in private

13 practice, and then as an Assistant U.S. Attorney in the office

14 he now runs. He worked for Senator Schumer in Washington. I

15 think that's when we first met, Preet, when you were in Senator

16 Schumer's office. And then since 2009, has been the U.S.

17 Attorney for the Southern District of New York. That's an

18 extremely long tenure in that job, in that very demanding job,

19 and of course we all read on a fairly regular basis about the

20 work of that office, which is a large and complicated and

21 sophisticated place. You spent several years in a large firm as

22 an associate after graduating from Columbia Law School, and then

23 moved into the Southern District as an AUSA. Was the plan always

24 public service?

25 Preet Bharara: Yes. First, I just want to say thank you for



Page 3

1 having me. It's good to be here at NYU. There are some people

2 who used to work for me who are in the audience, so a special

3 shout-out to you guys. I realize that you're going to learn a

4 little bit about me and I'm going to learn a little bit about

5 your eating habits, so it will be fun to watch you guys eat

6 lunch. I thought maybe I would have a sandwich but apparently

7 not. So when I was in law school certainly, and I think even

8 before that, I thought that I wanted to become a lawyer, and

9 I've said many times in seventh or eighth grade I read Inherit

10 the Wind and thought that's kind of a cool thing to do, to be a

11 trial lawyer. And then when I got to law school, I realized

12 that the thing that I really wanted to be was a trial lawyer and

13 specifically a prosecutor, and I think I really decided that's

14 what I wanted to do when I took trial practice in my third year

15 of law school, it solidified it for me, with somebody who then

16 was a chief judge in the Southern District of New York and then

17 became the Attorney General, Judge Mukasey, who taught a class

18 in which and I hope many of you take this opportunity if you

19 haven't already, to take trial practice. Even if you're not sure

20 you're going to like it, you should try it, because to my mind

21 there was no more exhilarating thing to do as a lawyer, and then

22 to do it in a way where you're only goal is to do the right

23 thing in the right way and to advance the interests of justice,

24 not represent any particular but represent the public in the

25 United States of America. I thought, what could be better than



Page 4

1 that? The U.S. Attorney's office typically doesn't hire

2 directly out of law school, sometimes directly out of a

3 clerkship but not usually, so they want people to get some

4 experience. So I went to a firm, and I had it very firmly in my

5 mind throughout my time practicing in a firm and I went to two

6 firms, actually that I wanted to become an Assistant U.S.

7 Attorney, and if I could in the Southern District of New York

8 because I thought there's no better thing to do than to wake up

9 every morning and look around and try to figure out how you can

10 make the world a little bit better, a little bit safer, and the

11 community a little bit better a little bit safer, and that's

12 what people in the office strive to do. And I would encourage as

13 many people as possible, whatever you think about doing, to

14 spend some portion of your time in your career as lawyers in

15 public service. It doesn't have to be as a prosecutor. It could

16 be as a public defender, it could be doing environmental work,

17 but there are a couple reasons for that. One is there's no more

18 gratifying thing than to take the education that you have been

19 gifted by going to an institution like this and figuring out how

20 to make the world a little bit better. It's as gratifying a

21 thing as you can do. The work has meaning, whatever work you

22 choose to do in the public interest, and then second and I

23 place it second but it's important to a lot of people you are

24 more likely to learn how to be a good lawyer and how to have

25 good craft and how to be a good practitioner in the public



Page 5

1 service, in the public interest, than you are going to be in the

2 private sector, and that's just a function of the dynamic of how

3 law firms operate and in-house departments operate. You're less

4 likely to get into court, you're less likely to take a

5 deposition, you're less likely to interview the witness. You

6 have an amazing opportunity not only to give back in public

7 service but also to develop your trade, which is a pretty good

8 combination.

9 Dean Trevor Morrison: So a lot of our students here, obviously

10 one of the hallmarks of NYU is a commitment to public service

11 and public interest, and a lot of our students take up the call

12 you were just reiterating. And you mentioned it's clearly the

13 case, that public service in the domain which you've worked

14 could be on the prosecutor's side,

15 [00:05:00]

16 it could be on the defender's side. Was there a reason that you

17 gravitated towards thinking about being a prosecutor, and do you

18 think that there is sort of one view of things on that side of

19 the V and another view on the other side of the V, or how do you

20 relate that to the way you think of public service more broadly?

21 Preet Bharara: Yeah, have great respect for people who practice

22 in the defense world. In fact when I was in private practice,

23 for some of those years I practiced criminal law on the defense

24 side. A lot of people who leave the U.S. Attorney's office or a

25 DA's office end up becoming defense lawyers, and vice-versa. I



Page 6

1 hire back some of the best criminal defense lawyers in the city

2 who come back and then give back to public service after they've

3 spent some time in private practice. I think it's important to

4 have some experience often doing both because a) you're better

5 at your craft. You understand what the other side thinks. You'll

6 understand how the other side plans for trial, might examine the

7 witnesses, might cross-examine your witnesses; but almost more

8 importantly, I think if you have spent time in both areas, as a

9 prosecutor you have an understanding of what it is like to be on

10 the other side so that you make good decisions and you make the

11 right decisions, and you'll have an appreciation for how big a

12 deal it is not just to prosecute someone but to even commence an

13 investigation, and it makes people, I think rightly, more

14 sensitive to the fact that these are not just figments of your

15 imagination, they're not imaginary figures. They're real people

16 with real lives, with real people who depend on them, and if you

17 have that perspective and that experience, which everyone should

18 have, I think in many ways it makes you a better prosecutor and

19 a fairer prosecutor. And so part of the reason I gravitated

20 towards becoming a prosecutor is in my view and not everyone

21 agrees with this in some ways prosecutors are the best defense

22 lawyers around, and if you care about justice and you care about

23 doing the right thing, you should never have to stand up and you

24 should never stand up as a prosecutor and advance an argument or

25 advance a case that you don't believe in with both your mind and



Page 7

1 your heart. Very few people get to say that and do that, and I

2 don't think defense lawyers get to say that and do that except

3 sometimes. Prosecutor's office, as one of my predecessors

4 famously said, should be judged not just by the cases that it

5 brings but by the cases that it doesn't bring, and as a

6 prosecutor, you have the ability to exercise your discretion and

7 not bring cases that you don't think are in the interests of

8 justice, and I think to my mind, there is no gratifying thing

9 than that.

10 Dean Trevor Morrison: That provides a good segue to start

11 talking about some of the issues in the work of your office, I

12 think. So one we could put under the rubric of mass

13 incarceration, or maybe more generally mass incarceration as a

14 phenomenon of a criminal justice system or systems, if we think

15 about the federal and state systems as distinct, that many

16 including even our President have suggested is broken. I wonder

17 at your perspective on that, and if it's a segue from what you

18 were just saying it's because it picks up on this idea of

19 discretion. One place where there is a lot of discretion,

20 obviously, on the prosecutor's side is in charging decisions and

21 the like. One place in the system where there is less than

22 complete discretion is on the sentencing end and the existence

23 of mandatory minimum sentences in the federal system in

24 particular, a number of the federal drug laws, and some point to

25 that as one big cause for the extent of mass incarceration in



Page 8

1 the United States today. Obviously you have a role within the

2 system but how do you think of this as a problem, or do you

3 define it that way? Do you think of mass incarceration as an

4 output of the current criminal justice system as about right, in

5 need of reform? How would you tackle the problem?

6 Preet Bharara: There's a lot of questions in that one

7 question...

8 Dean Trevor Morrison: I'm a law professor.

9 Preet Bharara: ...which I'll try to answer in less than 75

10 minutes. So first of all, I think that what we're talking about

11 is the criminal justice system, and the operative word there is

12 justice. You'll hear me talk about this a lot, and I work in the

13 department that is called the Justice Department. So everything

14 that we do I think should constantly be in a state of

15 reexamination and reform, whether it becomes popular in the

16 public perception at a particular moment or not. And so with

17 respect to what people refer to as mass incarceration, I think

18 it is a good thing that everyone from the President to members

19 of both major political parties in the country are thinking

20 about whether or not we are prosecuting people and holding them

21 accountable and sending them to prison for the appropriate

22 periods of time. Is that right? Is that wise? Is that fair? Is

23 that cost-effective? And all those questions I think have been

24 important to ask for a long time, and there's a moment now that

25 a lot of people are identifying where more people than usual are



Page 9

1 thinking about that and are reexamining that, so I think it's a

2 great thing. In my office, people in my office know

3 [00:10:00]

4 if I ask a question about why we're doing something in a

5 particular way, and the answer I get is "Because that's how

6 we've done it," I get very angry at that answer, and I think

7 that that same principle applies to broader issues of how we

8 treat people, prosecute people, how we do everything, how we do

9 education, you name it, it should be justified on its own terms

10 not just because that's how we've done it in the past. With

11 respect to mass incarceration, what people call mass

12 incarceration, I think on the federal side, people need to

13 distinguish the federal side and the local side, on the federal

14 side, I think it's only 10% to 14% of all people who are in

15 prison in the United States are in federal prison, so even if

16 you eliminated every federal defendant in the country, you

17 wouldn't do that much on this issue. At the same time, I think

18 the reports are that the number of people going to prison

19 federally, for federal crimes, is on a decline, and for the

20 first time in a long time and I think people may have read in

21 the newspaper today that depending on what happens over the

22 next few weeks, 6,000 federal inmates are going to be released.

23 So there's clearly and understanding and a trend, based on what

24 judges are thinking about, the Sentencing Commissioner is

25 thinking about, the Department of Justice is thinking about, for



Page 10

1 a little bit of a trend down in how long people spend in prison.

2 Apart from that, just to jump to another point, we need to think

3 deeply not just about how long people should spend in jail for

4 crimes they commit, or whether they should go to jail, but if

5 they do, what should be the conditions of their confinement. How

6 do we treat people who are still human beings who are in prison?

7 We do a lot of work in our office but not all of it gets the

8 same amount of attention, but I hope that people are aware of

9 the work that our office has done, our Civil Rights Division has

10 done, with respect to the conditions on Riker's Island. We have

11 thought really, really hard with the City and with the

12 Department of Corrections to make sure that everyone understands

13 that even though people may have committed crimes or are

14 presumed innocent until the trial happens, I know a lot of

15 people at Riker's Island who are pretrial, but that being behind

16 bars does not mean beyond the Constitution, and the Constitution

17 applies to every person in the country whether you've been

18 convicted of a crime or not, whether you're in jail or not. And

19 some of the conditions that we have found, and that led to our I

20 think landmark resolution with the City, at Riker's Island were

21 really abhorrent. There was use of force that was way out of

22 control, there was a lack of discipline, all sorts of things.

23 You can read the very lengthy report. And we accomplished

24 something there whereby, among other things, solitary

25 confinement, which people have been debating a lot now in the



Page 11

1 same context of the debating mass incarceration, has finally

2 been eliminated for adolescents at Riker's Island. So that work

3 is really important, and it's among the types of work that we've

4 done in my office that I'm most proud of. We also have been

5 looking at the Westchester County Jail. People may note that we

6 have been taking a look at an incident that happened at

7 Fishkill, which is further upstate, and it makes you wonder and

8 think, while we're talking about incarceration, is there a

9 systemic problem generally in the country but more specifically

10 because I'm in New York, is there a particular problem with the

11 State Department of Corrections and how they supervise these

12 various facilities in the state, and how they treat people who

13 are in their custody and care and control in the state, and

14 whether or not it's time that there is a very hard look at how

15 that Department of Corrections operates its facilities here in

16 New York.

17 Dean Trevor Morrison: So speaking of state government, an area

18 which your office has been quite active in the last year in

19 particular is around public corruption, and I'd love to hear,

20 literally there are so many questions I'd love to ask you about

21 pending cases, and I'm going to do my best to avoid that.

22 Preet Bharara: You're going to ask one with 18 sub-parts?

23 Dean Trevor Morrison: Exactly, yeah, you need to take notes. One

24 question that's connected to the corrections as well is how do

25 you think about the role of your office and the promotion of



Page 12

1 reform in other parts of here, another layer of government,

2 right, so you bring individual prosecutions. One hopes for there

3 not to be the kind of public corruption in the first place that

4 would occasion the prosecutions that you've brought, or at least

5 the allegations that your office has laid. So how do you think

6 about the relationship between the sort of individual

7 prosecution decisions and a systemic problem like corruption?

8 Preet Bharara: That's a great question and a very complicated

9 question. The principle role of the prosecutor is to prosecute.

10 The principle role of people who care about public safety is to

11 protect public safety. But it's also the case that in the course

12 of bringing certain kinds of prosecutions, you observe why it is

13 that some of that bad conduct happened. I mean, I never go

14 anywhere without getting asked the question, whatever area of

15 criminal conduct we're talking about prosecuting, people ask the

16 question, as they should, "Well, why does that happen?" And part

17 of the role

18 [00:15:00]

19 Preet Bharara: I think if anybody who cares about public safety

20 and about upholding the rule of law is not just holding people

21 accountable, that's a part of it, but another very important

22 part, some would say, a more important part, if you do it

23 properly, is prevention. And prevention through, among other

24 things, deterrents. Because if you, as I say to people who do

25 narcotics prosecutions all the time, if you are able to make a



Page 13

1 neighborhood safer for people, and get rid of a gang problem,

2 and people you know, the next day, feel more comfortable letting

3 their kids go play in the park or go to school, because you've

4 put away a bunch of people who are terrorizing the neighborhood

5 and selling large quantities of narcotics and shooting people,

6 which is happening in parts of our city, and in the District,

7 that's great, and a job well done, and you've held people

8 accountable. But if the next day 10 new gang members take over

9 that same block, then you really haven't accomplished that much

10 from the perspective of the people who want to send their kids

11 to school without being shot at. And I think the same principle

12 [PH 00:16:01] obtains in every context. If you hold people

13 accountable, great, but if you haven't done something to try to

14 make the problem better, then that's not a great situation, and

15 I think that's true also in public corruption. So part of what

16 you do is you make sure that everyone understands why you

17 brought those prosecutions, and you make other, similarly

18 situated people understand, hopefully, that "I don't want to be

19 in the position of that person who just got hauled away, and

20 whose life has been ruined because of intentional conduct that

21 harmed people, what they did." So I think that's an important

22 part of the job. Now I worked in the Senate for four and a half

23 years, so I used to be a person whose specific job description

24 included you know, advocating for particular piece of

25 legislation, drafting legislation, drafting amendments to



Page 14

1 legislation. So you know, I try to stay away from that but I do

2 get asked the question, you know, often, "What kind of tools do

3 you think you need? Why was it not possible to hold a certain

4 kind of person accountable?"And I think in those occasions, it's

5 appropriate to describe what some of the obstacles are to doing

6 our job, what some of the obstacles are to public safety. And

7 I've done that in the public corruption context, I've done that

8 in the drug context, I've done that in others. This last point

9 on that, you know, another new thing that's happening around the

10 country in the narcotics area, is the proliferation of what's

11 called K2 or Spice. Some people call it synthetic marijuana. And

12 it is a public health hazard that we haven't the likes of which

13 we haven't seen in a very long time. And so when we announced a

14 sweep in that case, we arrested a number of people, and we did

15 this jointly with the DEA and with the NYPD, the number of

16 people who were going to emergency rooms because they were

17 overdosing on what they thought was something innocuous, and

18 it's not; K2, Spice was going through the roof! And people

19 were dying of overdoses of this drug, that's being manufactured

20 with chemicals in China. And then being sprinkled on leaves and

21 being sold as something that you don't have to worry about, in

22 bodegas and in convenience stores around New York City. We had

23 to make a I think it goes to your point we had to make a

24 decision about how we go about broadcasting to the world these

25 arrests. And we didn't just do the arrests. I stood up with the



Page 15

1 Commissioner of Police, with Bill Bratton, with the Head of the

2 DEA, and with other people, to not only say, "You should know

3 that we've arrested these folks and these are the charges that

4 are contained in the complaint." But also to let people

5 understand, so that parents and siblings and young people would

6 know that if you do this stuff, you don't know what kind of

7 chemicals are in there. There's no controls on them, and you

8 could end up in not just the hospital, but the morgue. And the

9 more people who heard that and understood that, and read about

10 it in the paper, the more likely it is that a life would be

11 saved. And I think that's completely appropriate.

12 Dean Trevor Morrison: That's an interesting view on not just

13 public corruption, but more broadly. Now speaking of the papers,

14 your name appears in them with some frequency. I'm told that the

15 the New York Observer ranking the most powerful people in

16 Albany has Governor Cuomo second, and you first. [Laughter]

17 There's a congratulations, I guess. [Laughter] This is one of

18 my favorite headlines of the fall, "The Preet is On." [Laughter]

19 So, some of your critics have suggested that you might overuse

20 the media, the press. That there's some line of propriety in

21 terms of how much a prosecutor ought to be talking about cases

22 just filed, about cases pending in any way, or even about issues

23 not having to do with pending cases and that wherever that line

24 is, you're on the other side of it. So that's the criticism.

25 Preet Bharara: What's interesting about that is often, and look,



Page 16

1 prosecutors have to be very careful about what they do and how

2 they talk and what they say outside of a courtroom. And I adhere

3 [00:20:00]

4 as scrupulously as I can to all of those rules. But as I said, I

5 have a job not just in making sure that people in my office hold

6 folks accountable, but in making sure other people don't commit

7 the same crimes. And you know, I have I think an obligation

8 and responsibility to make sure that I'm doing that part of my

9 job too. And the interesting thing about, generally speaking,

10 the criticism that arises of that nature, doesn't arrive in

11 garden variety cases. It often arises in cases where people have

12 very, very, very sophisticated and high priced lawyers, who can

13 afford to make accusations like that. And then there's a forum

14 for them to litigate them, and then you know, if they're

15 correct, then someone will find that to be so. That criticism

16 never arises, interestingly, in the K2 context, right? Or in the

17 gang context. And prosecutors in this country, every day, walk

18 into high schools and walk into churches and talk about a crime

19 problem, and talk about ways in which you can solve crime,

20 beyond simply locking in fact what we're talking about, and

21 we're talking about mass incarceration, we're talking about

22 interesting dichotomy here. Right? On the one hand, people are

23 saying, I think, intelligently and wisely, that you can't

24 prosecute your way out of every problem, whether it's public

25 corruption or drugs or prescription pills, or terrorism or



Page 17

1 anything else. That what is necessary also is some kind of is

2 engagement and public education, and deterrence and changes in

3 culture. And when prosecutors and local DAs walk around and they

4 talk about how there should be better after school programs, or

5 they talk about how education is important, nobody ever says,

6 "What are you doing? You're overstepping your bounds." Because

7 that would be ludicrous. And so I think that same principle

8 doesn't just apply when you're talking about street crime. When

9 you're talking about and when a prosecutor goes and says, "You

10 should make sure that your kids go to school and get an

11 education so they don't fall to gang life." That is people

12 applaud that. And I don't understand why and by the way, when I

13 do it with respect to Wall Street Crime, the people who ask me

14 the most questions, that are technically out of my lane, right

15 "What statue do you apply and how long a prison sentence should

16 someone serve? What are the elements of insider trading?" The

17 people who most ask me the questions outside of that, and ask

18 me, "How can businesses do better? How can we change the culture

19 on Wall Street?" Are people who are on Wall Street. And when I

20 go and speak to hedge fund managers, and groups like this, this

21 large, but who are from the hedge fund industry or the trading

22 industry, or the banking industry, they're the ones who when we

23 do the Q&A, say, "Separate and apart from prosecution, how

24 should we be behaving? How can we inculcate in our institution

25 better character, better culture?" So interestingly, and I think



Page 18

1 the criticism you're talking about arises in the public

2 corruption context, I don't frankly get why it's different in

3 the public corruption context, especially when those crimes go

4 to the heart of democracy, and everybody, whether you're a

5 prosecutor or a defense lawyer, whether you work in a blue

6 collar job or a white collar job, whether you're old enough to

7 vote or not, those people's decisions affect your lives and they

8 make decisions about what kind of taxes you pay, they make

9 decisions about who goes speaking of incarceration who goes to

10 jail, who doesn't, for how long, whether our jails are properly

11 monitored or not. And so to answer questions, about why it's

12 happening, why is there corruption in Albany or the city council

13 or anywhere else? And what ordinary people can do to make it better

14 and to raise public awareness of this problem, I think, is

15 completely appropriate and I think I would be, in some ways,

16 remiss if I didn't talk about those things.

17 Dean Trevor Morrison: You mentioned the trading industry. So

18 that's one place where the answer that you gave at some point in

19 the past about where the rules what the rules are and the

20 answer that seems to be the answer in the Second Circuit and

21 that the Supreme Court declined to take up earlier this week now

22 changed over time, with the Second Circuit's decision and the

23 Supreme Court's denial of cert. On Monday, in a pretty

24 significant insider trading case, one member of the faculty here

25 called the loss for the government in that case a dagger in the



Page 19

1 heart of insider trading prosecution. I'm guessing that's not

2 the metaphor you'd use.

3 Preet Bharara: Who's the member of the faculty? [Laughter] And

4 is he or she here?

5 Dean Trevor Morrison: We'll get on to surveillance later.

6 Preet Bharara: I'd like to have a word. [Laughter] Isn't that

7 out of the lane of a professor?

8 Dean Trevor Morrison: It's very wide lanes for professors in

9 terms of ... [Laughter] So some of the audience will know about

10 this case, and some won't, but why don't you tell us a little

11 bit about it and give us your perspective on the now, I guess,

12 settled law of the circuit, of the Second Circuit.

13 Preet Bharara: I don't want to go on at length about it, but we

14 brought a series of insider trading cases over the course of the

15 last six years, which have been fairly significant. We've done a

16 lot of other things too, but that's one area in which we've

17 done, I think, important work. An argument was made in a trial

18 court, you know, two people were convicted. At some point later,

19 that the defense lawyers took it up to the circuit, which is

20 their right, made various legal arguments, and one of the legal

21 arguments that they made was that the, you know,

22 [00:25:02]

23 the tipper, in giving a tip of material, non-public insider

24 information, didn't receive any benefit, yet had knowledge of

25 there being a benefit back. So in other words, the Second



Page 20

1 Circuit, in deciding to vacate those, reverse those convictions,

2 basically said for somebody to be held liable for criminally

3 liable for an insider trading violation, in addition to meeting

4 all the elements that we always understood, you have to prove

5 that the benefit that comes back to the person is something I

6 don't have the exact words in front of me but were something of

7 material, pecuniary value or potentially pecuniary value. So

8 something other than mere friendship or relationship, but

9 something that amounts to something that you could sell. And to

10 our mind, that had never been the law before. The law had been,

11 I think, we argued in our briefs to the District Court, to the

12 Circuit Court, to the full panel of Circuit Court, and then in

13 our petition for [INDISCERNIBLE 00:25:56] that this

14 [INDISCERNIBLE 00:25:57] filed, that that had never been the law

15 before, under something called Dirks, which is the reigning

16 Supreme Court case in this area, and still is. And so we had an

17 argument about it, like you do; and you'll find that you do in

18 private practice, or in public interest law in the future. We

19 felt strongly enough about it, and the Solicitor General himself

20 felt strongly enough about it, that we took the unusual move of

21 petitioning to the Supreme Court, to have the Supreme Court

22 decide, because we think there should be clarity in this area

23 and we think that the Second Circuit which is a very

24 distinguished court and has a lot of great judges made a

25 mistake in this case. And judges are human beings, just like



Page 21

1 everyone else. And sometimes we don't agree with them. We still

2 think we have the better of the position, even though the

3 Supreme Court declined to hear the case.

4 Dean Trevor Morrison: Were you surprised that the court denied

5 cert?

6 Preet Bharara: No, not surprised. I think if you talk to a lot

7 of experts, it's an uphill battle to get the court to hear any

8 I mean, you know you've clerked on the court. Because they have

9 a lot of cases to consider and they can't consider all of them.

10 And I think any time you seek cert, in the Supreme Court, it's

11 an uphill battle. But two points I want to make about that. One,

12 to the extent that the unnamed professor said it's a dagger to

13 the heart dagger to the heart implies that you killed the body.

14 We have brought about 100 insider trading cases since 2009. And

15 even after the vacating of these two cases, these two

16 defendants' convictions, and some other cases will be implicated

17 also, but when all is said and done and all the dust has

18 settled, our view is, we'll probably be at a 90% plus conviction

19 rate all things considered, which is better than the conviction

20 rate for a lot of people. So I think the dagger analogy, unless

21 it's a very, very dull dagger, doesn't apply. [Laughter] Second

22 thing is, in terms of deterrents and in terms of what people

23 think about the insider trading docket that we've had, some of

24 the most prominent cases that you've heard about including the

25 one against Raj Rajaratnam and the one against Rajat Gupta, the



Page 22

1 case against SAC Capital as an institution, all are going to

2 stand, not withstanding this particular decision that the

3 Supreme Court has declined to review. On the other hand, that's

4 not to say that we think that everything is hunky dory. There's

5 a certain category of conduct now

6 Dean Trevor Morrison: The cert petition must have said this was

7 an urgent question that needed the court's attention.

8 Preet Bharara: It did! It did, because look, because you want to

9 make sure that the markets are fair. And that people have faith

10 in the markets. And to our mind now, we think that the decision

11 now that stands, makes it very arguable that I'll give you a

12 hypothetical it makes it very arguable that a CEO who happens

13 to be the head of a top 50 a top 50 company in the world and

14 decides to bequeath upon a relative or a crony or a buddy a tip

15 about what the earnings numbers are going to be two days before

16 they're going to be publicly reported to the world, and says,

17 with every bit of knowledge that it's private and confidential

18 information, with every bit of knowledge that the person to whom

19 he's giving the information is going to trade on it, with every

20 bit of knowledge and hope that that person is going to make a 10

21 or 20 or 30 million dollar profit, by having that special

22 information that nobody else is supposed to have, and says,

23 "Knock yourself out." If that person can now claim, under

24 Newman, as it can easily be read to say, "I didn't expect

25 anything back, it was just a gift, because it was my daughter or



Page 23

1 it was my golf buddy, or it was my college roommate.", he can

2 get away with that. And people have to ask themselves the

3 question, is that a good state of affairs? Is that how the

4 securities markets should be? Is that how you get people to have

5 confidence in the securities markets? And we believe, because we

6 prosecuted the case in good faith, and we understood what the

7 law was at the time, which we believe the Second Circuit

8 changed, that that should be criminal. And apparently, you know,

9 there's a decent argument that you can do that and get away with

10 it. And I think reasonable people can decide whether or not

11 that's a lovely thing.

12 [00:30:00]

13 Dean Trevor Morrison: We're going to open it up for questions

14 from students in a minute. I want to ask a question that maybe

15 in one way is a kind of resource allocation question, but I'll

16 ask it this way, which is, what worries you these days? What are

17 the even though the Federal Government is a government of

18 enumerated, and therefore limited powers, the reach of your

19 office is broad. And part of your job is to set priorities and

20 presumably that priority setting reflects a sense of the

21 problems most urgently in need of your office's attention. So

22 either at that level, or even in a sort of longer term way, what

23 are the issues that you're worried about, that you think the

24 government needs to be attending to, and the part of the

25 government that you work in, at least.



Page 24

1 Preet Bharara: That's a good question and many would say that

2 the that our office's sort of ambit is particularly broad.

3 Somebody once asked me, made the mistake of asking me the

4 question, "What again, is your jurisdiction, exactly?"And I

5 said, "Are you familiar with Earth?" [Laughter] So we long

6 before I got there have a long tradition in the Southern

7 District of thinking about the global reach that we have,

8 because we do have a good amount of resources, not unlimited

9 resources, but a good amount. And so you have to think from day

10 to day and from year to year, what the problems are. And so in

11 recent times, for example, and you move your resources depending

12 on what you think is a public safety problem and what you think

13 is a rule of law problem. And I've already mentioned one that

14 has become a higher priority as information comes to us. For

15 example, the problem, I think in prisons, around the state and

16 in the city, and Riker's Island in particular. I'll give you

17 another example; then we can take questions. Which I think

18 people have appreciated. When I started in the US Attorney's

19 Office, as the US Attorney six plus years ago, people were

20 beginning to understand how important the cyber threat was. And

21 how big a deal that was. At the time, we had basically one

22 person in our office who was really, really expert on the cyber

23 threat and how the internet, you know, the intersection between

24 criminal law and the internet and how much bad stuff bad guys

25 could do through use of computers and the internet. I mean, I



Page 25

1 have 10 times that number of people. Six years ago, the FBI and

2 the Secret Service were the principle law enforcement agencies

3 to try to protect us from the cyber threat, are now operating at

4 multiple times the number of folks they had working on it back

5 then and the people they do have are more sophisticated. And I

6 think people get it now, after hearing about the Sony hack,

7 after hearing about the hack of all the documents mine included

8 at the Office of Personnel and Management.

9 Dean Trevor Morrison: Mine included.

10 Preet Bharara: Yours included. Especially yours. [Laughter] It's

11 a gigantic problem. It's a problem for your bank accounts, it's

12 a problem for your privacy. It's a problem for national

13 security. It's a problem for infrastructure. And if you ask you

14 also see that that is reflected in the way that people talk

15 about the problem. You did not have a President of the United

16 States or a Secretary of State or a Treasury Secretary or the

17 FBI Director and his all these people on a regular, myself

18 included at a lesser level, all these people, every time they

19 speak publicly, they will talk about the cyber threat. And the

20 ability of bad guys to do bad things because of that. And how

21 recruiting is done, is being done through social media. A few

22 years ago, we finally got introduced to this concept of Twitter

23 and there are people in my office who say, "Oh, I don't even

24 know what that is." And thought it was kind of a weird thing for

25 conservative prosecutors to be on Twitter. And now, listen to



Page 26

1 Director Comey of the FBI. Every time he speaks publicly, he

2 talks about one of the biggest threats to the country and to the

3 world is the threat of [PH 00:33:31] ISIL, and how are they

4 recruiting people? They're recruiting people largely through

5 social media, through Twitter. We have people who are garden

6 variety gang guys, who are trying to recruit young girls in to

7 sex trafficking rings, where they will be abused and treated

8 very, very poorly and horrifying crimes will be committed

9 against them, and they're doing it now through social media. And

10 so if we don't get smart about that, and we don't understand how

11 technology works and how cyberspace works and how we can strip

12 away anonymity when it's important to do it, to get people who

13 are not only trying to steal your money, but some of whom are

14 trying to destroy your country, then we have big problems. So

15 that's what worries me the most.

16 Dean Trevor Morrison: And getting smart on that, is that a

17 matter of sort of technological development and literal

18 learning? Or do we need other laws than the laws we have?

19 Preet Bharara: I think we need, I think we need to do all of

20 that. I think we need to get and it's also in orientation, of

21 being understanding of and open to technology. And it's not just

22 true of the government, I mean, I speak to companies about this

23 when I get outside of my lane. And I tell them how they should

24 deal with the issue of cyber security. One of the things I say

25 to them is, "It can't just be the responsibility of..." A little



Page 27

1 off your question, but I think it relates to it. One of the most

2 important things is that, when you're thinking about how to make

3 sure that your company is not hacked, whether you're a motion

4 picture company or you're a bank or you're a university, you

5 can't delegate that to the Chief Technology Officer or the IT

6 people,

7 [00:35:02]

8 it has to be something that's important to the CEO of the

9 company, to the board of directors of the company, because it's

10 a matter of risk management and corporate management, like any

11 other risk. Like the risk of competition, or risk of regulation,

12 or a risk that an accounting problem you might have. And it has

13 to be in the bones, in every company in the country now, and

14 every government institution. This issue of how you deal with

15 this threat and how you deal with the cyber issue with all the

16 cyber issues has to be in the bones and in the DNA of whoever

17 the leader is: the US Attorney or the CEO or the Attorney

18 General or the director of the CIA. And on top of that, then

19 yes, all those people need to be thinking in deep ways about

20 where there are gaps in the law. Again, I generally don't talk

21 about that, but there are people who right now are going to the

22 Hill and talking about how we need to update our laws because

23 they're fairly behind in this area.

24 Dean Trevor Morrison: Let's take some questions from the

25 audience. We have some microphones here, so there's a hand.



Page 28

1 Mitchell Brown: Good afternoon. I'm Mitchell Brown, I'm a 2L

2 here. My question for you is we talked a lot about holding

3 people accountable and about deterrents and about public

4 awareness of issues. There's an issue of prosecutorial

5 misconduct in our justice system. What are your thoughts about

6 prosecutorial misconduct as a form of public corruption?

7 Preet Bharara: Yeah. I noticed you're reading the question. was

8 that from that professor? [Laughter]

9 Mitchell Brown: That's from me.

10 Preet Bharara: Okay, I was just making sure. Look nobody takes

11 prosecutorial misconduct more seriously than prosecutors who

12 care about making sure that things are done the right way. The

13 mantra that I repeat in my office and it was, you know, taught

14 to me, and it was taught to the person who hired me, was that

15 every day your job is to do justice and do the right thing, in

16 the right way, and for the right reasons, no matter what. That

17 is the most important thing that you can do. And so you know,

18 any amount of prosecutorial misconduct is intolerable and if I

19 ever find out about it in my office, that's a gigantic problem.

20 What I think people need to understand is the best way to make

21 sure that you don't have prosecutorial misconduct is to make

22 sure that the culture of the you need to have the training and

23 the rules and all of that. And this is true of a bank, and it's

24 true of a law school, and it's true of a prosecutor's office.

25 You want to make sure that the culture is such that it is



Page 29

1 unthinkable for a prosecutor to willfully or intentionally

2 violate the rules or cut a corner. I'll give you an example of

3 how we have all the trainings, right? Like you have. And you're

4 supposed to have. And new mandatory trainings you're supposed to

5 have to make sure that everyone understands the rules, because

6 sometimes these prosecutors are young, they deal with a

7 complicated case, people make mistakes sometimes. But the

8 important thing to do is make sure that they know what questions

9 to ask. I have a rule of thumb in my office, which was handed

10 down to me when I was a young prosecutor, by my supervisor. And

11 it's essentially this: You can parse the words of rule 16 or

12 whatever the discovery obligations are, very finely, like a

13 strict constructionist, such that you can make an argument that

14 you don't have to turn over some batch of documents or some

15 batch of material. And I say, essentially, that if you have

16 three or four prosecutors in a room in my office, and the

17 conversation about whether or not particular thing should be

18 turned over or not, and it goes on for more than four or five

19 minutes, meaning that there's an argument to be made within the

20 rule, that it doesn't need to be turned over, and there's an

21 argument to be made that it does need to be turned over, you

22 turn it over. There's no reason not to. And you don't have to

23 you don't have to glide up to the line. And you don't have to

24 make arguments in favor of not doing the thing that's really no

25 skin off your back. Just give it to them. And I think the



Page 30

1 culture should be, and is, I hope, overproduction of things and

2 I think that's a very important thing to do. The second thing

3 that's very important in making sure that you don't have

4 prosecutorial misconduct and you don't have bad things happen

5 and people skirting the rules of justice, this is true again of

6 any institution; the way you have an ethical institution is make

7 sure that you have ethical people. And so the most time that we

8 spend on any particular thing, is actually often not on cases.

9 Not any particular case. It's on who we hire. The hiring

10 coordinator is right here, [PH 00:38:57] Neil Corwin. You should

11 see him after if you have an interest. And he will tell you how

12 many hours and hours and hours I personally, I don't think this

13 is true in other institutions where you know, we have a decent

14 size. You go through several rounds and at the end, you

15 interview with the United States Attorney and we are looking at

16 people who we hire as much for, if not more, actually, for their

17 sense of integrity, their sense of fairness, their sense of

18 respect for justice and the law and doing things in the right

19 way, and obeying the rules, as we are about their academic

20 credentials. Every once in a while, I've told this story before,

21 I always ask the question, for people who want to be in our

22 criminal division, "How are you going to feel knowing the kind

23 of power you're going to have and essentially by definition, if

24 you do your job correctly, you will in many ways be the

25 proximate cause for real human beings to be separated from their



Page 31

1 liberty for long periods of time. How are you going to feel

2 about that?" And every once in a while, somebody answers a

3 little too gung ho. And every once in a while someone says,

4 "Well, I have no problem with that. And that would be great,

5 because they did bad things." And when I sense that, you know

6 what we do?

7 [00:40:01]

8 We don't hire that person. And we don't care what clerkship they

9 had, and we don't care how what their class rank was at NYU Law

10 School or any other law school, because that's a problem waiting

11 to happen. And I hope that people appreciate that and know that.

12 So it's important to have rules, it's important to have a good

13 culture in the place, and it's even more important to make sure

14 that the people you're hiring, even before they've gotten the

15 training, before they understand what the rules are, and they've

16 never been a prosecutor before, to make sure that they have good

17 hearts and that they are ethical people who are full of

18 integrity and want to have that reputation for the rest of their

19 careers.

20 Dean Trevor Morrison: That's a very powerful, I think very

21 meaningful statement. If you think less about your office, and

22 more obviously you don't speak for offices other than yours, but

23 just give us your sense of nationally it was Judge Kozinski on

24 the Ninth Circuit who said, I think, a couple of years ago, that

25 we have an epidemic of Brady violations in the land. That this



Page 32

1 is, in other words, a huge problem, that's going to be solved,

2 maybe in the ways you talk about, but that it's a problem of

3 that scale and scope. Do you agree with that?

4 Preet Bharara: I only know what I see in my office and I don't

5 find that to be a problem in our office. I know a little bit

6 more about the Justice Department as a whole and there were

7 issues with disclosure, I know, in a case against Ted Stevens,

8 right about the time that I became the United States Attorney,

9 and the Department to its credit, I think all the way up to

10 the top of its leadership, took a lot of steps to make sure to

11 do all these things that I've been talking about, and making

12 sure that the message is understood by every prosecutor in the

13 Federal System, that you do things the right way. And also to

14 make sure that even inadvertent mistakes are not made by having

15 better training, everyone had to revise its office's discovery

16 policy. We had countless hours of meetings to make sure that we

17 spent time with every single criminal prosecutor in our office.

18 And it's a lot of them, to make sure they understood the rules,

19 to make sure that you never get up close to the line, to make

20 sure that the public knew what our role was going to be. And I

21 don't and I think that has been effective in the Federal

22 System. I'm not fully familiar with all of what Judge Kozinski

23 said. I think there's some people who tend not to agree with him

24 on that and on some other things as well. [Laughter] But you

25 know, I think we're doing a decent job.



Page 33

1 Dean Trevor Morrison: Other questions? Here, yes.

2 Amor: Hi, I'm Amor, 1L. I'm a huge fan of your work in Albany

3 and I was wondering, the sort of work that you've done, pulling

4 indictments for people like Dean Skelos, understanding that that

5 case is going to trial in a month, so I'm not asking for

6 specifics, but you've been able to do work there that a lot of

7 both state and federal officials have been trying to do for a

8 years. I was wondering if you could comment on the sort of

9 tactics and strategies that have enabled you to be successful,

10 get indictments where others have failed.

11 Preet Bharara: Yeah, I can't speak about what other people do

12 and what their focus is and how they arrange their priorities. I

13 mean, I'm lucky to have, none of this I didn't do any of this,

14 by the way. I have amazing men and women in my office who are

15 prosecutors, investigators, paralegals, staff, FBI agents, and

16 they did all the work. And I think you see this in all the areas

17 of law where we operate. I like to say we always work within the

18 constraints of the law, but like to think out of the box. The

19 folks in my office, historically, have been and continue to be,

20 aggressive. They also tend to be tireless, and they also tend to

21 be fearless. And I think if you combine all of those things, and

22 you do the tedious, hard work of every day, looking at every

23 document, making sure you're asking for all the right documents,

24 making sure you're connecting all the right dots, making sure

25 you're looking at where the money is going, and you have



Page 34

1 patience, you can make these cases. I'll give you, as I'm

2 talking, I'm realizing another thing. You know, there are a lot

3 of cases with people that we start, and we investigate a lot of

4 things. People think they know everything we're looking at. You

5 don't. There are many, many high high profile things that we

6 have looked at, that you have no idea about, and we quietly

7 close the case because it's not proper to bring a case. Either

8 because there's not enough evidence, or because no crime was

9 actually committed. I mean, we read the newspapers too. And we

10 see you know, we have whistleblowers come in and tell us things,

11 and we open up those cases. Now some of them, on day one, you

12 don't know if there's ever going to be a case. You don't know if

13 the law is there for you. You don't know if the facts are going

14 to be there for you, you don't know if the statute of

15 limitations is going to be long enough. And I think it may be

16 I'm not criticizing any office, but I do sometimes think that an

17 advantage that I have in my office, that I inherited I didn't

18 create this is that we're prepared to make the investment even

19 if there's not going to be a payoff at the end. This goes for

20 financial, complex financial fraud. You know, we brought this

21 case against Toyota, took us four years. Four plus years of

22 slogging through documents, getting them translated. First

23 brought from Japan, translated from the Japanese, because I have

24 tireless, dogged, investigators and prosecutors. I think there

25 are places where they have more limited resources, or they don't



Page 35

1 have quite the time horizon.

2 [00:45:00]

3 and I think is it worth spending months, and months, and moths

4 on something that may never pan out. We don't have that

5 attitude. If something is worth looking at and we think it's

6 significant, even if we don't know at the end of the day there's

7 going to be a provable crime, we still do it, and some of those

8 things pay off and I think that's what you saw in some of these

9 public corruption cases, all of which, by the way, are really

10 difficult to prosecute and really difficult to prove.

11 Dean Trevor Morrison: Other Questions. Right here, yes.

12 Susan: In, my name's Susan [INDISCERNIBLE 00:45:37] and I'm a

13 Hauser scholar at the center and I'm from Switzerland. I'm also

14 a fan of yours. I have three questions.

15 Preet Bharara: Let's start with one and see how we do.

16 Susan: They're short questions. The first question is from an

17 outside perspective when you bring world financial institutions

18 to justice, there's also a multiple authorities, sort of,

19 prosecuting them. So how do you experience this cooperation and

20 competition between different prosecutors, Department of

21 Justice, SEC, and so on, when you go after a case? Is there a

22 moment when you pull back because somebody else is doing it?

23 The second question is: you talked about resources. So my

24 question would be: do you get a part of those huge fines that

25 you're actually reaping?



Page 36

1 Preet Bharara: No.

2 Susan: Does this go to your office or not?


4 Dean Trevor Morrison: You personally don't.


6 Susan: See, that was a short question.

7 Preet Bharara: If you saw the car I drive to work every day,

8 you'd know the answer to that question.

9 Susan: And the third question: you've had an unusually long

10 tenure, the dean said. So my personal question to you would be:

11 where will you be five years from now.

12 Preet Bharara: I don't know. Maybe I'll back here doing a

13 thing. In respect to your first question, and I appreciate that

14 you're a fan of the work. You clearly are not in the Swiss

15 banking industry. They're not fans.

16 Susan: I'm not sure.

17 Preet Bharara: Really? Okay, well, there's a particular bank

18 that's not a fan. So look, it's difficult, particularly when

19 you do those kinds of financial cases. We brought, you know, a

20 case against BNP, the largest bank in France also. They're also

21 not fans and it's the nature of the world now not just in the

22 financial area but especially in the financial area, that there

23 are a lot of regulators, there are a lot of prosecutors, there

24 are a lot of people who have some stake. In that case, you had

25 the Manhattan DA's office. You had the U.S. attorney's office,



Page 37

1 you had main justice, you had the Fed, the Federal Reserve, and

2 you had to coordinate very carefully because if you have just a

3 rogue going out and willy-nilly doing a lot of things and taking

4 actions and we also had DF, the Department of Financial Services

5 in New York, and you're not coordinating, you can cause havoc

6 and unintended havoc and that's not a good thing. Sometimes, it

7 becomes difficult because everyone has a different mission and

8 the SEC has a different mandate. It overlaps some but the CES

9 has a different mandate an a different mission from the U.S.

10 attorney's office, which is different from the Manhattan, the

11 Manhattan DA's office, by the way, can keep all the money and

12 they're spending it lavishly. I don't mean him personally, but

13 the office. So you have to be very careful about that and I

14 think it's only responsible and mature and I think some people,

15 you know, you watch the movies and they think there's all

16 fighting and bickering all the time and the feds show. Our

17 experience has been, separate and apart from the financial

18 context, has been terrific. In the cyber area, we have done

19 things I think would have been unimaginable a few years ago, not

20 just coordination locally in the United States, but

21 internationally. We brought a gigantic cyber case two years ago

22 called Black Shades that involved, I stood up when we announced

23 the case and we had a global map, consistently our jurisdiction,

24 and it had 19 different countries shaded because law enforcement

25 actions took place in a coordinated way in the time difference



Page 38

1 and everything else in 19 different countries to take down

2 cybercriminals in all those different places or do searches,

3 court authorized searches in all those different places, and

4 that was coordination between the FBI and maybe the secret

5 service and the prosecutor's office and different ambassadors.

6 It was a crazy, complicated, difficult thing to do but, as we

7 become more global and the world becomes smaller and criminal

8 conduct can take place, you know, a single criminal act can

9 actually involve 13 countries now, right, because you have money

10 flowing. You have visiting happening and you have emails going

11 through. We're going to have to get even better and better at

12 that kind of coordination if we're going to make the world a

13 safer place.

14 Dean Trevor Morrison: We've got time for maybe one or two more.

15 Amine: Hi, I'm Amine. I'm a 3L here and you've been in public

16 service for a long time so I was wondering if you could talk a

17 little bit about how sort of politicized it has become over your

18 tenure and what advice you have for somebody who's starting out

19 and kind of sees that it's a little daunting to see sort of it

20 pulling apart

21 [00:50:00]

22 between parties and all that kind of stuff.

23 Preet Bharara: Yeah, I mean, there are different ways to serve

24 in public service and I'd like to think that I serve right now

25 in the least politicized office that you can serve in. We are



Page 39

1 known often as the sovereign district of New York. We are known

2 as, and we're proud of being known as the most independent

3 prosecutor's office around. Historically, again, I didn't

4 invent that but I hope I've carried that tradition on and that

5 means independence, not only from politics, but independence

6 from wavering public opinion and I would search for places where

7 you can have that autonomy and you can have that independence

8 but even the Department of Justice is not immune to that kind of

9 thing. When I served in the Senate, the most formative

10 experience I had, now going back a few years when you people

11 were a bit younger, was an investigation while I was in the

12 Senate on the judiciary committee investigating the Justice

13 Department itself for its sudden firing of nine Unites States

14 attorneys back at the end of 2006 and that entire investigation

15 which I helped lead with the senator and with those staff

16 members on the majority side was about whether or not the

17 Department of Justice had been politicizing the way in which it

18 went about cases, had been politicizing the way in which it went

19 about hiring people, and had been politicizing the way in which

20 it got rid of the United States attorneys and sadly, one of the

21 outcomes of that, that's detailed at great length in Inspector

22 General's report, is that there were people at the Department of

23 Justice that I loved, that I served in, and I didn't expect to,

24 but am proud to serve in again, was hiring people, and this may

25 be especially relevant to folks like you, into their honors



Page 40

1 program and into their internship program, which are very

2 difficult and prestigious things to get, and you should all

3 apply for them now because now they fixed the problem. There

4 were people in the department, admittedly, and this was found

5 extensively, who were paying attention to what the political

6 affiliations and what the ideology was of their particular

7 applicant, which is, that's a dagger to the heart of the

8 integrity of an institution that's been around for a very, very

9 long time and whose very name has the word 'justice' in it. In

10 our office, we don't know what religion you are, we don't know

11 if you're a democrat or a republican, we just care about doing

12 the right thing, and that's what the Justice Department has

13 always stood for and should always stand for. So try to search

14 for a place where you can be as independent as possible but also

15 know that wherever you go, you can still be a voice to make sure

16 that that place lives up to the ideals of independence that it

17 should.

18 Dean Trevor Morrison: Last question if there is one. Yes.

19 Stephanie Wily: I don't have a microphone but I'll.

20 Dean Trevor Morrison: Let's just wait for one.

21 Stephanie Wily: Thank you. Hi, my name is Stephanie Wily and

22 I'm a 1L and you spoke briefly about mass incarceration which is

23 a problem that disproportionately affects minority communities.

24 I read that I can comment an issue is lack of diversity among

25 prosecutors. Can you just speak a bit about diversity in your



Page 41

1 office?

2 Preet Bharara: Yeah, so I'm glad you asked that question and

3 Neil Corwin, who I mentioned already, cares not only about

4 making sure we're hiring the best possible people, but we have a

5 deep commitment to making sure that our office looks like what

6 America looks like and we should be able to do better at that

7 and so I'm glad you mentioned it because at every opportunity I

8 get and Neil gets and other folks from my office get, we would

9 encourage people, whoever you are and whatever your sexual

10 orientation is, whatever your ethnicity is, whatever your

11 religion is whatever your gender is, to apply to become

12 prosecutors and I think that not only would you get a better

13 sort of overall vision for how people should prosecute things

14 but I also think there would be greater public confidence in

15 prosecutor's offices. I think probably more in the news, the

16 issue of diversity in police forces because that's the most

17 direct way in which people see an interaction with law

18 enforcement. It's with the local police department as opposed

19 to a federal prosecutor but I think that we need to do a better

20 job of making sure we're recruiting from everywhere and from

21 everyone. I also think that people in various communities

22 should think long and hard about whether or not, in public

23 service, they can do a valuable service to the country generally

24 and most importantly, but also to the particular communities

25 that they're identified with if they come in as prosecutors and



Page 42

1 as I just said, and as I think people note but not often enough,

2 a good prosecutor who exercises discretion properly can do more

3 to save people than a defense lawyer who represents one client

4 at a time and I think if people had more of a sense that that

5 was true, I think we'd do a better job. I want to say a

6 specific word on diversity with respect to women. So our, I'll

7 be very candid about this, we don't have an even number of women

8 and men in our criminal division. We do in our civil division

9 for reasons that are not clear to me and I've asked the question

10 of Neil and we've talked about this and we've hosted events. We

11 had a very good event recently for all women law clerks in the

12 southern district in the second circuit to come and talk to, and

13 I left and I wanted there to be a candid discussion about what

14 life was like

15 [00:55:00]

16 as a woman as a prosecutor. I think there's some misconceptions

17 about that but for whatever reason, you know, when I went to law

18 school, I graduated. I went to the second-best law school, at

19 Columbia in New York and when I graduated, there was still,

20 don't tell them I said that at Columbia. There were still a lot

21 more men in my graduating class than women and I remember

22 thinking people would say well, as years go by, as the number of

23 men and women graduating from law school becomes more even,

24 particularly the elite institutions like this one, you're going

25 to start to see more evenness in partnership ranks at firms and



Page 43

1 more evenness in prosecutor ranks, I guess. the first one

2 certainly has not happened, has not come close to happening, and

3 even in our office, we're not getting, we've analyzed the

4 applications, and Neil can corroborate this. It's not the case

5 that we're getting an even number of applications and we're

6 disproportionately hiring men. We're actually hiring probably

7 about in proportion to the applications we get. For whatever

8 reason, we're getting disproportionately fewer numbers of

9 applications from women to become federal prosecutors, even

10 though the ranks, I think I don't know what it is here but I

11 think it's the case that in many law schools there are more

12 women than men who are graduating in a particular class.

13 Dean Trevor Morrison: In a lot of schools, it's around 50. Our

14 1L class has over 50% women, 54% women from the last class.

15 Preet Bharara: So I don't know. So that bothers me and it

16 concerns me and we were talking about it and we talk about it

17 with the women supervisors in our office and with Neil. So I

18 would encourage people. Before you decide to apply, if you have

19 any inkling that this is the kind of thing that you want to do,

20 I would get more information about it. I would go to forums. I

21 would inquire. I would talk to, it's not that hard to find

22 people who are in the job and can tell you about it and I think

23 people don't appreciate. There's one speculation about women.

24 I think there's a lot to balance in life and I've had those

25 issues in my own life and I think what people don't fully



Page 44

1 appreciate about being a prosecutor, it's a hard job. We work

2 really hard and we work long hours but as compared to working in

3 a law firm, which is also a hard job and you have to work a lot

4 of hours, you often have, and this is counterintuitive to some

5 people, a lot of flexibility when you work in a prosecutor's

6 office, particularly if you are a senior prosecutor and you're

7 trying to have a family, I mean, I had, I'm not a woman and I

8 didn't bear my children, but I had three kids while I was an

9 assistant U.S. attorney and I didn't miss a birthday. I didn't

10 miss things because I had the ability because I had so much

11 autonomy. I didn't have a partner breathing down my neck and

12 making me stay at the office until 1:00 am to proofread a

13 document. I could choose, if I wanted, to make sure I did my

14 work on a Tuesday because the brief was on Thursday so I could

15 go to a birthday on Wednesday or I could go to a recital. All

16 those things you can do and I think people, it's another reason

17 to go into public service, often, not always, but often it's the

18 case, you have more autonomy over your life, as how you operate

19 during your day and what time you come in and what time, not

20 always, than you might in private practice. I hope that's, you

21 know, a myth that can be exploded a little bit.

22 Dean Trevor Morrison: It's a very persuasive case. So much so,

23 that Neil may need to go into witness protection or he's going

24 to be inundated with application after this. Thank you so much

25 for being here today.



Page 45

1 Preet Bharara: Absolutely.

2 Dean Trevor Morrison: Please join me in thanking him. Thanks.

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