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March 14, 2017

What is the Significance of Preet Bharara being Fired

By Michael H. Joseph

In a somewhat unprecedented move after U.S. Attorney for the Southern District of New York, Preet Bharara refused to resign when Trump took office. Not missing a beat, Trump told Bharara, “You’re Fired” much like the line from his Apprentice TV reality show.

Now New York Federal Criminal Defense lawyers are wondering how Bharara being fired will affect the policy decisions of Federal criminal prosecutions in the Southern District of New York, which encompasses Manhattan, the Bronx, White Plains and Rockland. There is some speculation that Trump’s administration will be more business friendly and there are likely to be a drop in questionable white collar prosecutions, such as for tax evasion, inside trading and other white collar crime. While there is some chatter that Bharara was terminated because of his tough stance against white collar defendants and political figures such as the Republican state assemblyman Sheldon Silver, however, since all of the U.S. Attorneys were simultaneously asked to resign, this theory is probably missing the mark.  But in general, mass resignation requests or firing are significant for an intention to change policy and change the priorities of the Federal government from top down.  While the United States Attorney’s office is supposed to be non-partisan, there can be no doubt that the priorities which the office chooses to focus on for prosecution reflect political choices that often reflect party influence as well as socio-economic backgrounds.

Given Trump’s rhetoric on illegal immigration, he will likely set policy to target immigrants who enter the United States, after previously being deported, which is federal felony and probably using the Racketeering Statute (RICO) to go after gangs and street level crime, such as low level drug dealers, which imposes significant higher sentences than those allowed by New York State law.  This is a shift in priorities from those which Bharara focused on which included insider trading, and public corruption cases where both Republicans and Democrats have been indicted. Ironically, when Bharara was chief counsel to Senator Charles Schumer, he investigated whether the firings of U.S. attorneys in several districts by the Bush administration were politically motivated. Now, he is the one who has been fired.

Although, the person at the top may be changing, it is important to remember that many of the Assistant U.S. Attorneys who will remain in the office were trained and groomed under Bharara and the culture of the office will be entrenched for some time as having been molded under Bharara’s influence.  So while change may come, there will undoubtedly be some resistance to the new administration’s policies and change will come slowly.

One ironic issue will be how the Trump administration will tackle gun violence and gang crime. As Trump has been an outspoken supporter of the Second Amendment and the right to carry a concealed weapon,  it will be interesting to see how his office will enforce federal gun laws, which are in conflict with his views on the Constitutional right to bear arms. As New York attorneys who handle gun charges know, New York, especially New York City has some of the toughest gun laws, which many scholars debate may not pass constitutional muster, like the D.C. ordinance which was struck down several years ago.

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