Tuesday, December 25, 2018

Merry Christmas : Is Preet Bharara engaged in unjust enrichment ? SDNY Judge John Koeltl must resign : 25 December 2018


Merry Christmas from Progress New York ! Is Preet Bharara engaged in unjust enrichment ? Editorial calls for S.D.N.Y. Judge John Koeltl to resign.

Excerpts of recent posts to Progress New York :



To undermine open records request for Preet Bharara's speech records, DOJ relying on U.S. Attorney's Office, Federal judge to thwart FOIA Request


If the Government permits former U.S. Bharara to maintain exclusivity over some of his speech records, then it might be shown that the Nation's former top prosecutor has engaged in unjust enrichment from his time in office, charges, ironically, that he essentially brought against a number of officials he accused of public corruption.


21 December 2018


Litigation seeking the release of records of former U.S. Attorney Preet Bharara's speeches is reaching a possible conclusion in U.S. District Court in Manhattan. Defendant U.S. Department of Justice commenced dispositive motion practise to dismiss the Complaint that was filed to seek the release of the records. The Government, represented by the same U.S. Attorney's Office formerly headed by former U.S. Attorney Bharara, has released transcripts, prepared remarks, or other records for approx. 40 speeches, but records for many other possible speeches remain unreleased.


The release of records, under regulations provided for under the Freedom of Information Act, or FOIA, has been taking place in the lead-up to the publication of "Doing Justice : A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law," a book of reflections by the Nation's former top prosecutor in New York's southern district. It was estimated that Former U.S. Attorney Bharara received $1 million for his book deal, according to a report published by the New York Post. Book deals that lead to such large advances usually require exclusivity in order to generate best-seller status upon a book's release in order for publishers to recover significant monies fronted to authors. If the Government permits former U.S. Bharara to maintain exclusivity over some of his speech records, then it might be shown that the Nation's former top prosecutor has engaged in unjust enrichment from his time in office, charges, ironically, that he essentially brought against a number of officials he accused of public corruption. Since being fired by President Donald Trump (R) during a purge at the DOJ, former U.S. Attorney Bharara's glossy media image as a reformer has been undone by reports by the WNYC 93.9 FM public radio station and Pro Publica, amongst others, that he carried out class- and race-based investigations and arrests after his office protected Wall Street CEO's from criminal prosecution, respectively.


Some of the records released by the DOJ reveal that former U.S. Attorney Bharara agreed to speak at events sponsored by at least one large law firm with a significant while collar criminal defense practise group, and that law firm ostensibly represented defendants in investigations by the Federal prosecutors' office formerly headed by the top ex-prosecutor. To limit the release of records, the Government has argued that the public's right to obtain Government records is not absolute. Reflecting this narrative, the Government filed a motion to dismiss the FOIA Lawsuit, and, to support its motion, the Government has filed declarations sworn under penalty of perjury describing searches for records that were shown to have been incomplete, and, therefore, unlawful. Congress enacted FOIA to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Government's actions show that the Government is violating the spirit and the intent of FOIA.




Snippets from Legal Filings and Document Productions


In its second filing of its opening legal brief, the U.S. Attorney's Office opposed disclosure of all information responsive to the FOIA Request because, citing legal cases, the Government argued that ... "the public's right to information was not absolute" .... Gov't Br. at 10.


A reporter for Progress New York argued in rebuttal, stating that the Government could not withhold records, because former U.S. Attorney Bharara had complained, during the making of one speech, that ... "[T]here is a substantial transparency problem throughout New York [G]overnment." Flores Decl., Ex. O at USA-000887. The legal contortions being made by the U.S. Attorney's Office to justify the withholding of speech records contradict the spirit and intent of the language used by former U.S. Attorney Bharara in some of his public speeches. At the same speech, former U.S. Attorney Bharara justified his official duty to speak to the public by stating that, in relevant part, "[b]ecause public corruption in New York, from all the available evidence, appears pervasive and because it is more than a prosecutor's problem. Recent and not-so-recent events paint a fairly dismal portrait of the state of [G]overnment in the State of New York. It is a portrait of a show-me-the-money culture, as I have said before." Supra at USA-000879. Since former U.S. Attorney Bharara has a $1 million book deal, if the DOJ refuses to release all of the records of texts, prepared remarks, and transcripts of former U.S. Attorney Bharara's speeches, a reasonable person can assume that Defendant is permitting former U.S. Attorney Bharara to "cash in" on his Government office, not unlike the corrupt signficant Government officials his office has charged with corruption.


The U.S. Attorney's Office refuses to explain why, in filings with the District Court in the Government's first prosecution against former Assembly Speaker Sheldon Silver (D-Lower East Side), the speeches of then U.S. Attorney Bharara were made in his official capacity and "were consistent with the stated mission of the DOJ." U.S.A. v. Sheldon Silver, Gov't Opp. Mem. to DF's M. to Dismiss at 21. Yet, in the instant litigation, the Government contrarily claims "that public disclosure is not always in the public interest." Because FOIA is intended to help the public and the press to access open records in order to challenge and expose corruption, the Government cannot engage in duplicity by claiming in one Court filing that speech-making is an official act, but then claim in another Court filing that such records are exempt from disclosure. Former Assembly Speaker had moved in his first trial to dismiss the Indictment over claims that then U.S. Attorney Bharara's speeches had tainted ... "the grand jury, which returned an indictment in the midst of the media firestorm the Government created." That motion was defeated, but it is not known if that motion was refiled in the second trial. Because former Assembly Speaker Silver is appealing his conviction, Counsel for Defendant owes a professional responsibility and ethical duty to notify the tribunal in that appeal case of information that may affect the outcome of that appeal, even if the information is adverse to the Government's interests. If Defendant fails to notify the tribunal in that appeal, then Plaintiff has argued that the District Court must order sanctions against Counsel for Defendant and then make that notification to the tribunal in that appeal case.


Records produced by the DOJ show that the law firm Orrick was set to host a speech by then U.S. Attorney Preet Bharara. Orrick has significant white collar criminal defense, securities litigation, and compliance practise groups, and that law firm ostensibly represented defendants in investigations by the Federal prosecutors' office formerly headed by the Nation's ex-top prosecutor.



EDITORIAL : To restore public confidence in the U.S. District Court for S.D.N.Y., Judge John Koeltl must resign


Judges and Justice officials must set the standard in public ethics in order to serve as a check on the executive and judicial branches of Government.


23 December 2018


It is not only the executive and legislative branches of Government that have become worrisome to anti-corruption activists. The judiciary has increasingly come under scrutiny. The Brooklyn U.S. District Court is referred to as the E.D.N.Y., and the Manhattan U.S. District Court is referred to as the S.D.N.Y. A Federal Judge on the bench of the S.D.N.Y. is particularly troubling. As reported by Progress New York and other news outlets, Judge John Koeltl has established a career that is fraught with conflicts of interest and accusations of judicial bias. Judge Koeltl has faced accusations of using extremism against activists and making prejudicial statements that are disqualifiable. Judge Koeltl arguably sent the now late activist attorney, Lynne Stewart, to an early grave after the judge increased her prison sentence at his sole discretion following an unusual request made by the Government. Judge Koeltl has also faced public criticism over showing bias to one party over another. Recently, Judge Koeltl was assigned to preside over the Democratic National Committee's frivolous lawsuit against WikiLeaks, and others, alleging collusion with the Russian Federation to interfere in the 2016 U.S. presidential election (frivolous, because the DNC rigged the primaries against Sen. Bernie Sanders (I-VT). Judge Koeltl also teaches at New York University, the notorious engine that produces élitism, gentrification, and displacement. Judge Koeltl has also, in the past, recused himself from cases where conflicts of interest were obvious, but he has only done so temporarily. His entire approach to professional ethics is situational.


Prosecutors work hand-in-hand with the Courts, where charges are filed and cases are tried. More and more, efforts to root out corruption from legal circles have faced institutional setbacks, even as at least some individuals have faced accountability. State Supreme Court Justice John Michalek (Erie County) pleaded guilty, amongst other charges, to accepting bribes. Efforts to hold prosecutors accountable for misconduct faced a set-back when the Cuomo administration settled a lawsuit seeking to create an oversight panel. Similar concerns exist on the Federal level. An ethics complaint was filed against at least one prosecutor in the Brooklyn U.S. Attorney's Office, Rukhsanah Singh. Judges and Justice officials can also see their careers deteriorate. Chief Magistrate Judge Roanne Mann, in the E.D.N.Y., spent a career breaking through the glass ceiling only to join the Good Ole Boys' network ; now an establishment judge, she has issued recommendations that gut the Freedom of Information Act, or FOIA. Raymond Dearie, when he was the U.S. Attorney in Brooklyn, investigated criminals connected with the Parking Violations Bureau scandal. He now sits, as an E.D.N.Y. judge, on the U.S. Foreign Intelligence Surveillance Court, where he rubber stamps the Nation's non-stop requests to eavesdrop on citizens. His peer at the time, Rudolph Giuliani, then the U.S. Attorney in Manhattan, also investigated corruption from that time then, and he led the prosecution of corrupt officials, including of then U.S. Rep. Mario Biaggi (D-The Bronx). Mr. Giuliani is now a shill-for-hire to President Donald Trump (R). Preet Bharara, who, as U.S. Attorney in Manhattan, prosecuted former Assembly Speaker Silver and former Senate Majority Leader Skelos, is now allegedly engaged in unjust enrichment from his time in office. Some of those appearing at once so virtuous end up becoming corrupted by greed following public service. Other judges, like S.D.N.Y. Judge Deborah Batts, develop a reputation of entirely doing whatever the Government requests, according to information obtained by Progress New York. The work of U.S. Attorneys increasingly rests on the eroding integrity of each of prosecutors and the judiciary, raising questions about whether the Courts will ever serve as a check on prosecutors, much less on the Government, further casting doubts on the prestige vested, perhaps wrongly, in the U.S. District Courts in New York City.


There is a high opportunity cost to having bad judges on the bench. On the subject of transparency, as the Government has sought to gut the Federal open records law in litigation seeking to bring the Government into compliance with FOIA, for example, and Judge Koeltl's record would keep allowing the Government to gut FOIA. Judge Koeltl does this, either because he is too meek or to corrupt to uphold the rule of law. For the public to have faith in the judiciary working in partnership in Justice officials to hold accountable the executive and legislative branches of Government, the judiciary cannot tolerate misconduct or judicial bias, and that includes the appearance of the same. No amount of reasoning, or judicial complaints, has compelled Judge Koeltl to introspectively examine the causes or sources of his bias and misconduct. Landmark decisions get made from the S.D.N.Y., like in Floyd, et al. v. City of New York, et al., which ruled that the use by the New York Police Department of stop and frisk tactics was unconstitutional. Also, important decisions do not get made, like how the Courts have permitted the Government to block any attempt to use the Courts in the Second Circuit to articulate an inquiry or test for a claim that the Government is engaged in a pattern or practise of violating FOIA. Because a pending FOIA Lawsuit before Judge Koeltl seeks a pattern or practise hearing about the DOJ's violations of FOIA that Judge Koeltl has already indicated he will not hold ; because of past allegations of conflicts of interest, judicial bias, and disability ; and because of the real prospect of establishing dangerous jurisprudence as the new standard for the S.D.N.Y. on the cases on his docket, Judge Koeltl, now about 73 years old, must resign.





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