Leaders in Law: Preet Bharara

Leaders in Law: Preet Bharara

Podcast In the Public Interest

Episode Guests

In This Podcast Episode

In the Public Interest is pleased to welcome Preet Bharara, former US Attorney for the Southern District of New York and current partner at WilmerHale. Bharara, who joined the firm in June 2022, is also a legal analyst for CNN and host of his own podcast, “Stay Tuned with Preet.” Since joining WilmerHale, Bharara has focused his practice on investigations and criminal litigation matters.

In this episode, Bharara sits down with In the Public Interest co-host John Walsh to talk about his journey to becoming a leader in the legal profession and the experiences that shaped his unique and storied career. Bharara discusses the incident that vaulted him to the national stage and what drove his headline-making refusal to return a phone call from a newly inaugurated President Trump. Walsh and Bharara share their views on the role of lawyers in supporting our constitutional system and what it means to “do justice,” which Bharara describes as “doing the right thing, in the right way, for the right reasons.” The episode wraps up with Bharara reminiscing on the cases that most heavily influenced his enduring commitment to the pursuit of justice.

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Episode Transcript

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  • Transcript


    Speakers: John Walsh, Felicia Ellsworth and Preet Bharara

    John Walsh: Welcome to “In the Public Interest,” a podcast from WilmerHale.  I’m your co-host, John Walsh.

    Felicia Ellsworth:  And I’m your co-host, Felicia Ellsworth.  John and I are partners at WilmerHale, an international law firm that works at the intersection of government, technology, and business.

    Walsh:  The name Preet Bharara brings to mind a different image for everyone.  If you’re an avid podcast listener, you may know him from the “Stay Tuned with Preet” and “Café Insider” podcasts.  If you watch cable news, you might recognize him as a legal analyst on CNN.  If you’re unfortunate enough to have faced him in the courtroom, you might know him from his time as U.S. Attorney for the Southern District of New York.  Or, if you work at WilmerHale, you know him as a colleague and partner at the firm, which he joined in June of 2022.

    Ellsworth:  Throughout his career, Preet has developed a reputation for using his authority to hold powerful people accountable.  At S.D.N.Y., his office helped secure the largest ever penalty against a hedge fund for insider trading violations.  He also investigated public corruption cases involving the Speaker of the New York State Assembly, the State Senate Majority Leader, the governor, and the mayor of New York City.

    Walsh:  And who can forget the final chapter of Preet’s tenure as a U.S. Attorney?  Shortly after former President Trump was elected, he asked Preet to stay on as the U.S. Attorney for the Southern District of New York.  But in the early days of the Trump Administration, it became clear that the former president had no interest in observing the traditional boundaries between the president and the Department of Justice.  So, when Trump placed a direct call to Preet shortly after he was inaugurated, Preet declined to answer.  The next day, he was asked to resign.  When he refused, he was fired.

    Ellsworth: We invited Preet on to discuss his work at the firm, as well as his unique experiences and perspectives on the most pressing and challenging legal questions of the day.  Just a note before we start: this interview was recorded shortly before Donald Trump was indicted by the Manhattan District Attorney, so while you’ll hear discussion of the investigations into former President Trump, the conversation does not get into the details of the indictment.  Now, without further ado, here is John’s interview with Preet.

    Walsh: Today I’m joined by Preet Bharara, a partner in WilmerHale’s New York office who focuses on investigations and criminal litigation matters.  Preet and I were colleagues in the US Attorney’s Office from 2010 to 2016, when I was serving as US attorney in Colorado and Preet was US attorney in the Southern District of New York.  Preet, it’s great to see you and thanks for joining us today.

    Preet Bharara: Thanks for having me.  How are you, partner?

    Walsh: I’m doing well.  And in that vein, I want to start with a personal question right out of the box here.  And that is, obviously you’ve had a storied career as a lawyer, as a prosecutor, as a public and legal commentator, and continue to.  How did you end up here?  What drew you to the law in the first place, and did you expect to be a lawyer when you were a kid?

    Bharara: You’re taking me back many decades.  As I’ve often joked, my dad really wished that I would become a doctor, or that my brother would become a doctor, or that we would marry doctors.  All four of us, me and my brother, my wife, my sister-in-law, all became trained as lawyers.  So, I first thought when I was—you didn’t ask this, but going back to when I was a young child—I was such a geek that I thought I would be an astronomer.  Not an astronaut, like many children would fantasize about, but an astronomer.  Science was not great for me.  I did well in biology and then at some point, I started competing in speech tournaments when I was in high school—and I write about this in my book Doing Justice—I delivered as part of speech competition, a closing argument by Clarence Darrow in the Henry Sweet trial where an African American young man who was defending his home in his brother’s home fired a shot into the crowd and was on trial for his life in a capital murder case.  And something about pretending like I was in front of a jury made a huge impact on me.  And then in college, I took constitutional law before I went to law school.  Sort of everything about my personality and how I thought you could affect change in the world, I was a huge admirer in high school and college of Robert Kennedy, who died before I was born.  And I thought that’s the thing for me.  Not to be a transaction lawyer, but to be a courtroom lawyer and on the side of good.

    Walsh: And when you say on the side of good, I know you’ve written and spoken extensively about the idea of justice, and I’m curious what that means to you.

    Bharara: The reason the book is called Doing Justice and not some other phrase is it’s a process, and whether you’re in private practice or in the public interest as you and I were for a number of years, you want to make sure you’re doing things with integrity, you’re doing things in the right way.  Obviously, when you’re a prosecutor, your client is not any individual.  Obviously, you do work to benefit victims and to make them whole, but you represent your district, you represent the United States of America as a federal prosecutor, and you do things and make arguments only that you think are right and correct.  But you also do them in the appropriate way.  To be on the side of right and good when you’re a public prosecutor is not about winning, it’s not about the competition, it’s not about securing quote, unquote, victory, it’s about making sure that the right thing happens, and that justice is done.  And sometimes that means walking away from a case, sometimes it means being very aggressive and sometimes creative in bringing a case using the law as a tool to effect justice.  But it means always, at every moment, as I used to say in my office, doing things in the right way for the right reasons at all times.  And that sounds sort of esoteric and amorphous, but I think where the rubber meets the road is in particular cases and with particular decision points, figuring out the right thing to do is where your brain and your heart should be at.

    Walsh: Well, look, your tenure as US attorney in the Southern District of New York ended famously in March 2017, when President Trump fired you.

    Bharara: I was fired!

    Walsh: Yeah, and you were an early and very prominent example of a public servant who really refused to put himself in what you regarded as an inappropriate position by the newly inaugurated president. Can you reflect on that experience?

    Bharara: People would reflect on what I did in refusing to return a phone call from the then-President Donald Trump in what I’ve come to believe and understand was a plan for him to sort of cultivate me as some kind of ally, either to protect against a prosecution we might bring or otherwise be helpful to him in some way that was unspecified and may not have been specified for some time.  I refused to return that call.  It was March 9 of 2017, six or seven weeks into the administration.  We’ve seen multiple times since then with Jeff Sessions, with Jim Comey, a little bit more recently with respect to election officials in Georgia, where Donald Trump gets on the phone and he tries to either charm or badger, or harass people into doing the thing that he wants them to do, going around the chains of command and the hierarchies and proper protocols and norms to the extent I was not 100% positive that I was doing the right thing on March 9 of 2017.  I have since become 100% positive.

    Walsh: Looking back over that time, you hear people sometimes say, well, the system held, the rule of law in the end prevailed.  But, I’d be curious what you think about the role of lawyers both in supporting our constitutional system and then doing things that may have subverted it.  Do you have any observations?  It’s been quite a five, six years.

    Bharara: The role of lawyers is very, very important and as you were asking the question roughly in my head, I think of three categories of lawyers that you can speak about through the lens of the question you just asked.  One category, and hopefully you and I are in that category, are the people who didn’t do anybody’s bad bidding, who spoke up for the right thing, who maintained their integrity, whether it meant losing their job or not.  And the day that I decided not to return the call of the sitting President of the United States, I understood and knew he would be angry about that, and it might cause my job to be in jeopardy.  But it was more important to do the right thing and not to have an end run around the attorney general or do some other thing that was likely to be viewed as inappropriate than to keep my job, even though it’s the best job I will have ever had. So you have that category of people and there are examples of that, that I think are fairly publicly known. Then you have a category of person who’s at the other end of the extreme who found the opportunity to either remain in power or enhance their power.  I hope it’s OK to say this, but Jeffrey Clark, the former acting head of the Civil Division at the Department of Justice, this is a person who decided to consort with Donald Trump in the aftermath of the election of 2020 to try to get the election overturned, drafted a letter to elected officials in Georgia, came up with lots of theories by which Donald Trump could hold on to power.  You have a number of people like that who I think saw the opportunity to maintain power or enhance their power or get close to a sitting president and they did things that I think were in violation of their oath and duty.

    I think you have a more complicated group of lawyers who were somewhere in the middle, people at the White House counsel’s office, some people who were at the Department of Justice, some of them former colleagues of yours and mine, John, who did a number of things that I don’t praise them for, going along with things at the border, separation of families, other policies and decisions that the President wanted to make along the way.  I think Bill Barr, the former attorney general, interfered in cases at the Department of Justice that he had no business interfering with, even though it was his legal right to do so.  And the reason I put them in a middle category is they went along and did certain things that I think they should not be proud of, but they did have a line at the end of the day, Mike Pence and Mike Pence’s Chief Counsel and Chief of Staff, Bill Barr, some others, didn’t do that last final thing, right?  They allowed the election to remain in the winning hands of Joe Biden.  They called it as they saw it.  And I think the legacy of those lawyers in that middle category is a little bit more complex and a little bit more difficult to evaluate.

    Walsh: Yeah, it’s a fascinating moral assessment.  As you think about these things.  I want to talk a little bit about the culmination of the Trump years, which tragically was, I think, many people would say the January 6th assault on the capital.  On a recent episode of your podcast, you interviewed Tim Hafey, who is Chief Investigative Counsel for the January 6th Committee and our former colleague, he was the US attorney for the Western District of Virginia during the Obama years.  And if I heard this correctly, he focused on the distinction between the fact that the committee was focusing on what you could call white collar witnesses, those who were involved in exactly the sort of political and legal maneuvering that you’ve described, could have led to a very different and terrible result.  Whereas DOJ was focusing on blue collar witnesses, the people who actually assaulted the capital and stormed it.  Obviously, the DOJ investigation has now turned a different corner with the appointment of Special Counsel Jack Smith, and I’m curious if you have any observations about where the January 6th Committee played a role in that shift and where, without asking for predictions, you think DOJ may now be going.

    Bharara: Well, I’m glad you mentioned the Tim Hafey interview.  I was proud that he chose to come on the show and do an in-depth interview unlike any he had done before after the conclusion of his work at the January 6th Committee.  He said forthrightly, in a way that I didn’t necessarily expect him to do so, that his assessment was that the Department of Justice, as you say, was focused on the people who actually breached the Capital went in, broke windows, took things, engaged in violent conduct in many instances, and not the people who were at the center of fomenting it.  The Department of Justice wasn’t looking at those things until Tim Hafey and the others on the Committee began to present evidence to the public that made it more and more clear that some other people maybe needed to be held accountable.  And maybe could be held accountable criminally under existing federal criminal statutes, something that I predict the Justice Department at the beginning of the process thought was a long shot.  Which is why, in my estimation, it’s just a guess and it’s just a little bit of speculation, which is why they focused on the people who actually were present that day and engaged in [inaudible].  One unfortunate thing is that the Justice Department, I think, was caught a little bit flat footed and I think there are understandable reasons for this.  But they’re a little bit behind and now they’re trying to catch up.  The investigation that Tim Hafey helped to lead, interviewed maybe more than 1000 people at a time when the Justice Department had interviewed very few of them, if any of them at all.  And as you know better than anybody, just because somebody has been interviewed by a congressional committee does not mean that that’s sufficient for you to proceed with an indictment and put forward criminal charges because you need to lock them in, either in interviews or in a grand jury process to make sure that you know what they’re going to say based on the things that you care about and based on the elements of the crime that you have to prove.  So, if you’re asking about the timing, I think we’re probably a ways off.  And my worry about that is it’s going to bleed into an election year and maybe that’s the way it’s got to be, but it’s not ideal.

    Walsh: We’re also seeing that various state investigations are now in the vanguard, so to speak, of potential action on these cases.  What impact does that have, do you think, on DOJ’s approach?  You and I are DOJ alums, we focus there, but so much of the action right now is at the state level.

    Bharara: Yeah, I know, there’s a lot of action going on.  But you know, there’s been a lot of activity surrounding the conduct of Donald Trump for years.  I mean, there was the Mueller investigation, there were two impeachments.  That was a lot of activity in a different context.  And so here you have the Manhattan DA.  You also have the DA in Fulton County, Georgia, and you have at least two distinct investigations by the Department of Justice, one relating to the January 6th insurrection, but another separate and distinct investigation relating to the handling or mishandling of classified documents at Mar-a-Lago.  My sense is that DOJ, as you and I have experience with, keeps its head down and just does what it’s supposed to do.  The DOJ investigation doesn’t really intersect in any way that I can tell, with one caveat for a moment, with Alvin Bragg, the New York District Attorney’s investigation of the hush money payments.  The intersection, of course, is at the origin of that case, which is SDNY.  And my former office’s prosecution of Michael Cohen, Donald Trump’s former lawyer for the hush money payment and the campaign violations and other charges associated with it.  The Department of Justice seems to have made the decision through the Southern District of New York not to pursue that case any further, so obviously they were overlapping in jurisdiction very specifically, because Michael Cohen actually had a federal criminal case brought against him.  But it seems they’ve abandoned that.  And to the extent that they have abandoned that, Alvin Bragg is left to his own devices.

    Walsh: Everything you just described, the multiple impeachments, the multiple investigations of Donald Trump, currently is against the backdrop where he’s running for president in 2024 and there’s at least a reasonable chance that he’ll be the nominee of the Republican Party.  We can’t predict it, but that’s certainly something that’s possible.

    Bharara: That’s right.

    Walsh: What does that say to you about the state of our politics and where we’re going as a country?

    Bharara: I was having a conversation at the dinner table the other day with my kids who were home from spring break and they were sort of marveling at the idea that you can be charged criminally and even convicted and still run for President.  You can run for Congress.  The reason it seems alien to us is as a general matter, I’ll stick with Congress for a moment, because we’ve never had this situation with respect to a current or former president.  The closest we ever came was Gerald Ford and Richard Nixon, and Ford pardoned him, as we all know.  But generally speaking, it used to be the case that if you have disgraced yourself by having been convicted of a crime, you resign.  Often you resign at the time of your charge, or you’re ejected from Congress by a vote of the particular body of the House or the Senate.  And we’ve come to a point now where there’s a certain shamelessness on the part of politicians and on the part of their supporters where they think any charge is fake news and they don’t care.  You have a guy named George Santos from my home state of New York, who I’m not alleging has committed any crime yet, but he has lied about every single aspect of his life.  And remember, quaintly, 30 years ago, a guy named Joe Biden, because someone prepared a speech for him that appeared to have plagiarized from a British Labour leader, Neil Kinnock, he dropped out of the presidential race.  And I’m not saying that we need to be puritanical in how we think about politicians and transgressions they engage in, but the standards are clearly different. 

    Walsh: Against that backdrop, what advice would you have to young people who are thinking about becoming lawyers or young lawyers who are looking at how they conduct themselves in the profession?  Do you have any advice, any comments?

    Bharara: I would encourage people to go into law.  It’s funny, a lot of lawyers I know don’t want their kids to become lawyers and I have three kids.  I think I’m going to be two for three and I think a function of that is they saw how happy and gratifying my experience was, particularly as US attorney, and when you see a parent happy in their job, anecdotally, I’ve found that children tend to do that.  If your parent is a journalist and loves being a journalist, maybe that compels the child to become a journalist also.  So I’ve always been very happy and full of pride about being a lawyer.  So my advice, I have a couple of pieces of advice to young folks who want to become lawyers.  And by the way, I would note that my sense is, again anecdotally, but I think there’s actually quantitative evidence to support this, applications to law school are up during the Trump presidency and its aftermath because I think a lot of people have realized whether they care about the environment, whether they care about racial discrimination, or they care about voting rights, all sorts of things that they care about, those can be accomplished if you have access to a courtroom and access to legal process.  Merely protesting can do a lot to change people’s minds and to change the law, but to actually be in a position to represent a client and to advocate for something in court where a legal degree is required, is something that I think a lot of people are becoming attached to.  And so I think we have not only an increase in applications to law school, but an increase in applications to law school on the part of people who want to use the law to do good.  And to improve the world and to improve their country and to improve the lives of others. 

    So my first piece of advice is think of going to law school and becoming a lawyer, in part to do something in the aid of others, and even if you are in private practice at WilmerHale, generally and John and I individually, commit ourselves to pro bono work.  Because I think if you have the power and the authority to do the kinds of things you do as a lawyer, I think you have an obligation to give back.  That’s point one. Point two is more pragmatic point, and this is whether you’re going to be a transactional lawyer or a litigator, learn some craft.  A lot of people want to become lawyers because they want to go into politics or they want to work on the hill or they want to do some other such thing.  And that’s all great and good and I worked on the Hill for five years as Chief Counsel to Senator Schumer.  In the early years, practice becoming a lawyer, practice your craft, try to get into court as much as possible if you’re in litigation side, do depositions, volunteer to do pro bono work not only for the reasons I stated earlier, that it’s good to give back and it’s gratifying and it helps people, but also it improves your skills.  You’re much more likely to get courtroom experience, deposition experience, motion practice experience, brief writing experience at the highest level on pro bono matters than you are on other matters, that’s just the way it is.  So, go to the law, associate yourself with the law for the purpose of helping other folks, and then learn your craft as best you can.

    Walsh: That’s great advice.  Your comments remind me of the early days of the Trump administration, when the so-called Muslim ban was . . .

    Bharara: Yeah, day eight.

    Walsh: Yeah, and immigration lawyers just went to the international airports to help the families who were trying to get their family members home.  And it was one of those moments that was inspiring to me as a lawyer, but I’m sure it inspired people to think about going to law school because it was an example of how, you know, there were many people demonstrating at the airports, but it was the lawyers who were sitting there on the floor with their laptops filing cases on behalf of those people who had been affected.

    Bharara: Yeah, no, there’s a limit, I don’t mean to be critical of lay people, they’re just limited.  You and I have this benefit of a law degree which gains us access to courts in a way that not that many people have.  And you can use it in a way that represents and furthers a policy position that you have. 

    Walsh: Let’s talk a little bit about private practice.  You’ve had decades of government service and recently, or relatively recently now, you decided to come back to private practice.  You’re representing private clients now.  Give us a sense, what are your initial impressions of that shift?

    Bharara: So it’s been great fun and working with close friends and former colleagues like you and many others at the firm, a number of whom were my former colleagues at the Southern District of New York.  In some ways, it’s not that different.  When I explain to people why I decided to go back to the practice of law after a hiatus where I built this media company and sold it to Vox Media at the various podcasts I do, there’s many things I miss about the public service aspect of being a lawyer.  But one of the things at the core of being the kind of lawyer that I was, and that you are, and that we are both, is solving problems and unpacking very difficult legal positions and issues and challenges like I used to do as US attorney sitting around my coffee table on the 8th floor at 1 Saint Andrews Plaza, and we would have a thorny legal issue and we would think to ourselves, how do we figure this out within the bounds of the law but as creatively as aggressively as possible.  And I miss thinking about the law, I mean, I’ve been commenting on the law, my bread and butter for the last number of years has been doing legal analysis, but that’s different from the outside than it is from the inside, trying to actually work through a problem on behalf of a client.  So in some ways I find it kind of the same thing working with other smart people to figure out how to address a problem or get over a legal hurdle.  In other ways, it’s obviously different.  I have a better understanding than I did before, and I thought I had a decent understanding before, of how big a deal it is when a government regulator and in particular a US attorney’s office or the Department of Justice shows up at the door and issues a subpoena.  I mean, I used to say in speeches I gave as US attorney when we issue a subpoena to a financial institution or some other company it’s like rolling a hand grenade across the threshold of the business.  And I said that and I meant that, but I didn’t fully appreciate how much explosive power that rolling grenade has when I see what goes into effect and how much action goes on behind the scenes in response to a simple, broad subpoena that can take eight minutes for an assistant US attorney to draft and give to an agent to serve or to fax or e-mail or however it’s conveyed, that can result in hundreds of hours of work on the other side just to get started, that I’m learning a little bit.  The final thing I’ll say which I’m saying this in good humor, you don’t know anything that’s going on on this side.  I used to know everything, right.  I used to know what we had as evidence when we would approach a target, we knew if we were bluffing or not, we knew if we were likely to proceed or not.  And on the other side, you find yourselves in conversations with non-lawyer individual clients and I’m sure, John, you can contribute to this because you’ve been doing this longer, who just want to know what’s the likelihood they’re to going charge me or what’s the likelihood this is a big deal for them and what else do they have.  And part of the challenge there is we don’t know, right?  We’re guessing.  And so maybe you can give me some advice, John, on how to answer those questions that are impossible to answer.

    Walsh: You know, I don’t know that I have good advice on that because I think what you just said hits the nail on the head, which is that sometimes you can’t confidently predict.  I will say that I was in the US Attorney’s office in LA, then went to private practice for many years here in Denver and then went back as US attorney in Colorado and one of the perspectives, I think I brought to the table that was most important as US attorney, was that perspective of the impact that government action can have on individuals and companies.  Not that it would cause us at any point to back away from something that needed to be done, but just a better understanding of what it’s like to roll that grenade across the threshold of a company, as you said, to take that into account in the way you go about investigating.  In that vein, but maybe flipping it around, having come from government service and now counseling private clients, what do you think the most important perspective that you give them based on your government service about how to handle matters?

    Bharara: I think you counsel them as clearly as you can in the law and I think what you do is, what I find myself doing is, explaining to them in a way that will not upset them, the perspective of the prosecutor.  When they see something bad happen, like a restatement of financials, or the sudden firing or resignation of a CEO, or a financial institution failing and imploding, from their perspective, they’re very suspicious.  And they’re going be very aggressive because there’s a lot of pressure on them to to figure out what went wrong, particularly in cases when there are a lot of victims.  And so in the same way, on this side of the fence, you’re trying to explain to the government the perspective of your client that the delay in making a decision is hurting business opportunities, the breadth of the subpoena is going to cause the business side of my client to be gummed up for months and months, it’s going to be unduly expensive.  You’re trying to get them to understand your perspective.  Part of the job of the lawyer is to explain to the client what the prosecutor’s perspective is.

    The second thing that I tell folks and I used to tell this to business students and law students even when I was US attorney, is prosecutors will not believe your good faith, negligence or inattention to something.  They will believe, given your sophistication, that the things that went wrong went wrong intentionally.  Not only do they not believe that it was inattentiveness, they will get a jury to believe that it was deliberate.  I give a famous example of the case of the United States vs. Raj Rajaratnam, who we charged with one of the most massive insider trading schemes in the first couple of years when I was US attorney and in editing and revising the draft opening statement, I made very few edits because it was very well done by the prosecutors in the case, but I said let’s emphasize the fact that Mr. Raj Rajaratnam went to Wharton Business School, one of the best business schools in the world.  And I say this when I go to institutional clients now also as a warning to them to be very, very careful.  No one’s going to believe that you just didn’t pay attention, that these things happened given the credentials you have, given the sophistication you have, given the responsibilities that you have, that’s not helpful after the stuff hits the fan, but you hope it’s helpful in getting them to pay attention and make sure that the compliance programs are up to snuff.

    Walsh: So we’ve talked a lot about justice.  We’ve talked a lot about the way you’ve gone about your legal career.  And I’m just curious, as you look back over a career that is still very much in force and moving forward, is there any case that you would flag for us?  Any example from your professional career that you would say, okay, this is a case that really brought to the fore this idea of justice and doing the right thing and also doing it the right way, something that you would highlight for us.

    Bharara: A case that sticks in my mind, I wouldn’t say this is the quintessential case, but it brings to mind this idea that it’s not so simple, figuring out what the right thing is.  Often it is, right, you don’t mislead, you don’t cheat, you disclose when you need to disclose, but sometimes there are competing values, right?  Sometimes there’s an issue of disclosure that competes with the issue of protection of a witness.  And you and I have dealt with that I’m sure many, many times and the hardest questions I ever had to deal with, and one of the reasons I wrote the book and one of the reasons I teach the seminar I teach at NYU law school, is because of my view that the hardest questions are not answerable by interpretation of a statute.  That difficult questions, the answers to them are not found in a book, which is why of course, I wrote a book about that very premise.  We had this crazy case of an infant child 22 years earlier having been stolen from Harlem Hospital and became a very famous case, Baby Carlina.  And two decades later, when I was the sitting US attorney, for complicated reasons that are fascinating, authorities came to believe and understood that they had identified the kidnapper of the baby.  And the kidnapper of the baby had raised that girl, baby Carlino, though she changed her name, and was a mother to her in every sense of the word for two decades.  It was not a difficult decision to prosecute the kidnapping mother.  But when we came to trying to figure out what the proper charge should be and sentence should be, well, that was very complicated because the statute allows for a mandatory minimum charge of 20 years if you’ve kidnapped a child and taken the child across state lines, which several people on the team advocated for.  The lawyer for the defendant said, well, we’re going to go to trial if you insist on the plead of the mandatory minimum, or we’ll plead and you’ll have certainty open to account that doesn’t have the mandatory minimum and we’ll leave it to the judge to decide.  Well, there’s no case you can read, or precedent you can evaluate, or statute you can interpret that answers what the right thing to do is there.  On the one hand, severe punishment was clearly in order.  On the other hand, to insist on a trial because you’re forcing the guilty plea to the mandatory minimum would have meant that Baby Carlina would be traumatized again and have to testify, probably for a variety of reasons, maybe not 100%, but probably.  And there’s lots of mixed emotion.  And the victims include the baby, and they include the biological parents who are still alive, who basically had an eye for an eye theory, understandably, as grieving parents who lost the love and comfort of a child for 20 years.  The reason I mention that case is I don’t know if justice was done in the case.  We ultimately decided that we would not force a guilty plea to the mandatory minimum sentence.  That in the interest of justice overall, as we conceived of it after, by the way, many, many hours and days of deliberation, we allowed her to plead open and the judge ultimately imposed a sentence of 12 years, which was deeply disappointing to the biological parents of the kidnapped child.  And I mentioned that is just one example that was pretty moving and emotional in the process of thinking about how justice is done.  And I think lots and lots of cases have elements of that and aspects of that.  And what I think we don’t do enough in law school and maybe even in training lawyers is how to think about those questions rather than after you’re a young lawyer, you’re competent, oh, you learn how to read a case, you learn how to brief the matter, you learn how to write a persuasive argument and a motion.  But how do you deal with questions like that?  What is the right thing to do and how much liberty do you do to try to extract from somebody when you have all these other competing considerations?

    Walsh: Yeah, absolutely.  I’m reminded of Judge Learned Hand, who in a famous speech during the Second World War said that the spirit of liberty is the spirit that is not too certain that it is right.

    Bharara: Yes.

    Walsh: Because these are such complicated issues, we could go on for another several hours I’m sure, but this has been such an interesting thing and thank you so much for taking a moment to talk to us.

    Bharara: I will tell you it is a pleasure not to be the one doing the interview, just being asked questions.  I do this a lot and you’ve done a great job, John.  It’s not as easy as it looks, so I appreciate your interviewing and podcasting skills.

    Walsh: And I will tell you we are just delighted to have you at WilmerHale and helping us and our clients on so many different things, our joint clients as partners.

    Bharara: Well, thanks.

    Walsh: We may have some follow up on the ongoing saga of our former President, Donald Trump, and I look forward to it very much.  Thanks so much, Preet.

    Bharara: Thanks John.

    Walsh: We’ll talk soon.

    Ellsworth: Thank you, everyone listening, for tuning in to this episode of “In the Public Interest.”  We hope you’ll join us for our next episode.  If you enjoyed this podcast, please take a minute to share with a friend, and subscribe, rate and review us wherever you listen to your podcasts.  See you next time on “In the Public Interest.” 

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