A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law
By Preet Bharara
Am I the only woman in America who considers Preet Bharara her podcast husband?
I am guessing not. His show, “Stay Tuned With Preet,” is a salve, an indulgence, a lifeline: It coasts along not just on the vitality of Bharara’s intelligence (uncommonly useful, given that he once was the United States attorney for the Southern District of New York, and so many urgent questions these days are legal ones), and not just on his ability to do a good interview (though there’s that too; one wonders if years of quizzing witnesses and summarizing cases made him understand the rhythms of a good story), but on his warmth, humor, reasonableness. Donald J. Trump may be laying dynamite beneath the floorboards of our most beloved institutions, democracies here and elsewhere may have blown a flat, but Preet’s still there, calmly issuing dispatches from Planet Rational, reminding us each week that humane people with fine minds and old-fashioned concerns (integrity! character! truth, justice, the commonweal!) are still very much a part of public life.
Plus, his children think he’s a dork. United States attorneys: They’re just like us.
Given how busy his tenure was — his office prosecuted everyone from the Times Square Bomber to the two top legislators in Albany — and given how rare a varietal he is of charm and conscientiousness and intellect, Bharara seems the ideal candidate to write a fine memoir. But “Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law” isn’t a memoir, exactly; had it been an uncomplicated reminiscence, I would have enjoyed it much more.
[ Can’t wait to read the Mueller report? Here are some books to read in the meantime. ]
What is it instead? In his preface, Bharara explains that for years, he’s wanted to write a guide for young prosecutors, one that draws “not from legal texts and treatises but from the real-life human dilemmas that would perplex them every day.” So: “Letters to a Young Lawyer,” let’s call it, based on a lived curriculum. But as Bharara was developing his themes, he adds, he realized that this book “might in fact be a guide to justice generally, not only for practitioners, but for real people who strive and struggle in their homes and offices to be fair and just.”
Which is all fine in theory — but only sometimes works in practice. Bharara seems to be addressing would-be prosecutors on some pages (“So your inquiry has come to an end”) and a wider audience on others (“And this of course is true everywhere in work and life, this attention to duty, detail and mission”), and he doesn’t seem to settle into a common register until the second half of the book.
More vexing still: In pouring his memoir into the mold of an advice book, Bharara winds up speaking in aphorisms and bromides. Of all the counselors in literature to channel, why on earth would he choose Polonius?
Yet here he is, on the importance of establishing an office with an ethical culture: “Values are more about the forest than about the trees.” On the importance of hard work: “Ambitious people tend to think of every endeavor as a ballgame in which they’re going to pitch a perfect game. It doesn’t work that way.” To be successful, he goes on to explain, “you’ve got to do it one pitch at a time.”
I half wonder whether “Doing Justice” works better as an audiobook, which Bharara personally reads aloud. I suspect he’s had to read much of what he’s written aloud, whether it’s for speeches, closing arguments or his podcast. What can seem profound in your earbuds can seem facile on the page. Just think of the difference between listening to a TED Talk and reading one.
Is all of this book filled with Polonius gunk? No. Most chapters delight or provoke in some way, if you mentally redact the fortune-cookie sentences (of which there are mercifully fewer in the second half). Bharara divides “Doing Justice” into four parts — Inquiry, Accusation, Judgment and Punishment — thereby following the rhythms of a criminal case, and almost every chapter returns, either directly or via roundabout, to Bharara’s basic contention, pithily summarized on Page 58: “In the end, the law doesn’t do justice. People do.” (This is a popular theme of his podcast, too: that democracy depends on good-faith actors to function properly.) His book is ultimately about ordinary fallibility, and how those responsible for the dispensation of justice are regular humans, prone to act as humans do. It is filled with sobering stories about error and — in the more beautiful, memorable cases — ingenuity, determination, redemption.
[ This book was one of our most anticipated titles of March. See the full list here. ]
There’s a chapter about the difficulty of overcoming confirmation bias. There’s a chapter about the paradox of the cooperating witness, who’s high in information and low in character — “the linchpin of your case is also your Achilles’ heel.” There are chapters about the futility of torture, the difficulty of determining fair sentences and the importance of walking away from a case, even when there are sunk costs.
The chapter about the idiosyncrasies and hidden frailties of judges is particularly eye-opening. (A limitation I’d never considered: Judges don’t get to watch fellow judges in action. “Their observational experience is largely stopped in time at the moment of being sworn in.”) In fact, the entire Judgment section, about the courtroom phase of the judicial process, may be the book’s most captivating, for the very reasons Bharara finds an old-fashioned trial so captivating: It’s cinema-ready. (Watch for the case of the battered prostitute seeking her stolen cash. Not since John Gutfreund played a $1 million round of Liar’s Poker has the serial number on a slip of American currency been so consequential.)
Bharara, who enjoyed a high profile and (mostly) favorable press attention during his tenure from 2009 to 2017, does not show a lot of leg in this book, nor does he settle many scores. Yes, he tweaks The Wall Street Journal for highlighting the fact that he went after Raj Rajaratnam, a fellow immigrant from the same region of the world. “My goodness, there’s a South Asian defendant, and there’s a South Asian prosecutor!” he writes. “You know where this happens every day? India.” But he says virtually nothing about SAC Capital’s Steven A. Cohen, whose wolfish appetite for insider information Bharara’s office could never quite prove, and his words about Trump, the man who fired him, are few.
And why is this, exactly? Considering Bharara’s emphasis on old-fashioned values — duty, discretion, decency — and their application to the law, it seems strange that he wouldn’t offer some words about what happened to the United States on Nov. 8, 2016, when the worst-faith actor imaginable was suddenly elected president. Did the country have a heart attack? Or is it merely undergoing a stress test?
I wish he’d said. What Bharara does offer, however, is an inspired and slightly perverse idea about how to salvage public discourse in 2019: We should take our cues from American criminal trials, in which both parties are obliged to consider flaws in their own arguments and understand the mind-set of the other side. Assertions must be evidence-based; research must be rigorous; decorum is paramount. “You can’t call your adversary a ‘low-I.Q. person,’” he notes. “You can’t argue the prosecution is political; and you can’t make sweeping biased statements.”
The first thing we do, let’s revive all the lawyers. Bharara, as usual, makes a very strong case.