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Book Review: ‘Doing Justice’ by Preet Bharara

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About The Author

Connor Griffith (Consulting Editor)

Connor is a law graduate from the University of Nottingham with a particular interest in intellectual property and corporate law. He is currently a trainee solicitor at a large national firm, sitting in the Real Estate department. Outside the law, he enjoys stand-up comedy and moaning about Brexit.

Freedom comes from human beings, rather than from laws and institutions.

Clarence Darrow

For UK readers of Keep Calm Talk Law, the name ‘Preet Bharara’ may ring a distant bell, but it’s unlikely a face will come to the forefront of one’s mind. In the United States, however, Preet Bharara is a household name, particularly in New York, for his work as the US Attorney for the Southern District of New York (SDNY) from 2009 to 2017. His tenure ended, however, when he was fired from this position by President Trump on 11 March 2017.

Bharara’s portfolio of prosecutions is intimidating, ranging from high-profile insider trading cases to the pursuit of Russian spies on American soil. Most significant, perhaps, is his desire to uproot the institutional corruption in the American political system, seen through the action taken against the so-called ‘three men in a room’: Andrew Cuomo, Governor of New York; Sheldon Silver, the assembly Speaker; and Dean Skelos, the state senate majority leader. Throughout his time as US Attorney for SDNY, Bharara worked tirelessly to combat Russian money laundering, public corruption, cybercrime, terrorism, and a litany of other crimes.

In March 2019, Bharara released Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law. The book weaves seamlessly between stories of the high-profile cases of Bharara’s time as US Attorney. Interspersed between these fascinating tales are responsible evaluations of the lessons learned from those trials and personal insights on justice and the rule of law. The result is a book that satisfies all bases, shifting from true-crime to wisdom, keeping the reader’s desire for dramatic stories and judicious wisdom constantly fulfilled.

Rule of Law

In writing Doing Justice, Bharara sought to return “back to basics”, since “[s]ometimes the best way to address current events is to recall first principles”. The book takes the reader through the stages of a prosecutor’s case – Inquiry, Accusation, Judgment and (if a conviction is secured) Punishment – highlighting the key principles that must be adhered to in each instance for justice to be done.

Politically, the world is in quite a dark place. Respect for due process, diligent investigation and fair trial has been haunted by the gradual shift in many nations from democracy towards autocracy. Social media has permitted the dissemination of opinion and disinformation as fact. Cultures have shifted to the point that many citizens, from all sides of the political spectrum, advocate the imminent arrest of those they disagree with, à la ‘Lock him up!’ and ‘Lock her up!’. The result is a political climate in which the harrowed principles of justice are often denied the enforcement they require. As Bharara writes:

Phrases and concepts like “the rule of law” and “due process” and “presumed innocent” seem to do service these days more as political slogans than as bedrock principles.

By contrast, Doing Justice is truly invigorating in that, underlying the entire book, Bharara demonstrates the utmost respect for the law, the rule of law, and the people that dedicate their lives to upholding it. Every page emanates veneration towards the system; towards guaranteeing that every defendant receives the fair trial they deserve; towards ensuring that justice is done and seen to be done.

A particularly admirable portion of the book, for example, focuses on how the courtroom has swiftly become an outlier as society’s last bastion of honest debate. The chapter ‘The Trial’ meritoriously lays out how lawyers, more than any other profession in modern society, are actively required, by nature of their role, to challenge their owns views and consider opposing arguments. This, Bharara writes, is “radically different … from much of modern social interaction”, since we are able to “shut out opposing views” and “swim in [our] controversy-free lane at all times”. All too often, people choose to:

take advantage of their right to cloister, to live in their little echo chambers, to settle into small societies of like-minded souls, never taking the time to test and strengthen the rightness of their beliefs through searching inquiry, vigorous debate, and open dialogue.

Such luxuries, however, are not afforded in the law, since “[p]eople are paid and obliged by oath and blessed by the Constitution … to attack every single allegation and argument you have made”. This, believes Bharara, is the “most exhilarating thing in the world”. Whereas much of modern politics simply consists of “siloed self-congratulation, self-affirmation, without risk of challenge or dissent or real and respectful debate”, law focuses on truth, persuasion and empathy. If a lawyer fails to properly counter arguments made against them, they will lose the trial. If a lawyer deliberately lies, they will be disbarred. These consequences force the discovery of evidence-based truths, which is exactly what is needed in society as a whole.

The necessity of humanity

Beyond the admiration of the institution, Bharara affords considerable focus to the simple fact that justice is not guaranteed simply because words on a page require things to be done a certain way. It is the people that guarantee justice, not the system itself. As Bharara notes:

Often the difference between justice and its miscarriage is the quality and the character of the people charged with making life-altering judgments during the process.

This principle arises in numerous ways. Prosecutors must want to find the truth, not simply an answer that confirms their suspicions or assists their case. Likewise, an element of empathy in the decision to pursue or step away from a case is necessary to maintain humanity in the system. Pursuing a charge against every crime, regardless of circumstance, would reduce us all to 1s and 0s on a computer screen: as humans, we have the ability to accept that the prosecution of criminal action is not in the interests of the public in certain circumstances, and adjust decisions accordingly. The law is not, and never should become, black and white. The grey permits humanity. Discretion is necessary; choice based on morality and circumstance must be permitted. For this reason, Bharara wrote:

I have been a prosecutor, and I can say unabashedly that prosecution cannot solve every social, political, or even public safety problem. It just can’t.

Furthermore, the law is developed through people. Bharara focuses on how, often, innovation does not require the work of a genius. When tasked with a challenge it can feel instinctive to work hard, not smart – it is all too easy to mistake movement for progress. Bharara gives the example of Heinz ketchup bottles: in response to ketchup getting stuck at the bottom of bottles, Heinz – rather than reformulating ketchup to make it less sticky – simply placed the nozzle on the bottom of the bottle. Simple innovation such as this, Bharara writes, is just as possible in the law, though he admits that legislation and codes of conduct can make this difficult, to the point that “[a]part from the clergy, there is perhaps no profession more staid than the law”. Without innovation, however, the law would remain stagnant, and justice would trail behind.

The law is not, and could never be, perfect. The responsibility to ensure justice is done lies on the shoulders of people that enforce the law. Put simply:

In the end, the law doesn’t do justice. People do.

Lessons learned

Even putting aside Bharara’s fascinating views on morality, justice, and everything in between, Doing Justice contains the stories of enough engrossing criminal trials to keep even the most ardent true-crime consumer on the edge of their seat. Throughout the book, Bharara tells the stories of unbelievable tragedies and successes, accompanying each case with a lesson learned along the way.

Bharara opens the book, for example, with the infamous tale of the murder of José and Kitty Menendez by their sons, Lyle and Erik. To all that knew them, Lyle and Erik had appeared to be loving sons that were distraught at the tragic deaths of their parents. It was only until the sons conducted an alarming spending spree of their deceased parent’s fortune that suspicions began to arise. Bharara discusses how cases like this demonstrate that there can be just as much danger from positive bias as there can be from negative bias since “anyone could be guilty of anything”. People are often too quick to disregard seemingly decent people of doing terrible things. This must be prevented just as much as assuming someone is guilty because of immaterial matters. Bharara writes:

To this day, when people say they know someone didn’t do it, I think of Lyle and Erik Menendez. It’s a sad but necessary reflex in a certain line of work. Because sometimes, all belief and faith and instinct to the contrary, the privileged sons of millionaires massacre their own parents.

Likewise, Bharara acknowledges that certain areas of law and morality simply have no definitive answer. In a particularly chilling chapter, ‘God Forbid’, Bharara focuses on the impossible question of choosing when law enforcement should step in between the concepts of dangerous thought and dangerous action. Freedom of speech is of paramount importance, particularly in the ‘land of the free’, but a line must be drawn somewhere before thoughtcrime becomes an alarming reality. Where, however, to draw this line? The chapter focuses on the case of Gilberto Valle, a frequenter of websites such as ‘Dark Fetish Network’: a “hive for every kind of depraved and violent sexual fantasy”. On this website, which Bharara described as a “virtual meeting place where people shared pictures – and plans – relating to abduction, rape, mutilation, and cannibalism”, Valle frequently discussed the torture, killing and cannibalism of his own wife. Such discussions presented a clear threat to the life of Valle’s wife, but also could have been purely hypothetical. The question for law enforcement remains: how do you tell which fantasies will become reality? As posed by one of Bharara’s colleagues:

Some fantasies remain fantasies. Some fantasies graduate.

Justice done

Doing Justice is a genuinely fantastic book, not just because it is deeply enthralling through its depiction of high-stakes trials, but also because of its commentary on the position of authority in the performance and protection of justice as a whole. Undoubtedly, the book should be required reading for anyone that wants to become a prosecutor since it represents the thoughts of one of the most respected and successful prosecutors to date. Additionally, however, the book would make desirable reading for anyone that is interested in the role of law, justice and politics in society in general.

The world is heading down a dangerous path, with leaders such as Trump, Putin, Erdoğan and Orbán adopting deceitful strong-man personas rather than acting for the good of all people. Doing Justice demonstrates that not all hope is lost. Justice must be upheld; Bharara’s book provides an excellent guide for how justice can be achieved.

Preet Bharara’s ‘Doing Justice’ is available to purchase now. He tweets @PreetBharara.

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Tagged: Criminal Law, Justice, Legal Careers, Review

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