It was an off-hand statement that went totally unnoticed and, more importantly, unappreciated by the anchors on CNN. And yet, in just a few words one of the most recognized and influential prosecutors in America blew away one of the most pernicious and deceptive narratives making the rounds among the elitist media.
Former New York federal prosecutor Preet Bharara appeared on CNN as part of his media rounds promoting his book entitled, “Doing Justice.” In it he promotes a glorified role of the prosecutorial community – you know, never political and always just going where the evidence leads.
It is part of the popular narrative that we are governed by a rule-of-law and an equality of justice to which prosecutors are merely supplicants. That is a self-serving innocents’ narrative that has all the reality of Santa Clause, the Stork and the Tooth Fairy. But that is a much bigger story than the subject of the moment.
In his morning appearance on CNN, Bharara was postulating his belief that President Trump may have been the reason for the indictments of Paul Manafort in New York. According to Bharara’s contention, it was the prospect of a pardon, which Trump refused to take off the table, that motivated the folks in New York to indict Manafort for essentially the same crimes to which he pled guilty in Washington and Virginia.
According to Bharara – and pay close attention to what he is saying – he doubts that Manafort would have been indicted had it not been for fear of a pardon from Trump. WHAT!!!
In that one statement, Bharara exposed the wolf under the sheep raiment – a wolf that he, and others, have long claimed does not even exist. The decision to indict Manafort was NOT some faithful following of the rule-of-law, says Bharara. It was what is known as “prosecutorial discretion” – and maybe even an example of something prosecutors do not talk about very much, “prosecutorial abuse.”
Bharara’s professional insight suggests that the decision in New York was based on … politics. It was designed to circumvent a power of a President – of this President – to issue pardons. It was not even a pushback against any action by Trump but a prophylactic to preempt and undermine what they thought the President MIGHT do.
Even at the time, the New York indictments of Manafort had a number of legal scholars scratching their heads. As a matter of tradition, it is rare – almost unheard of – for a lower court to take up a case that has already been substantially adjudicated by a higher court. It violates the spirit if not the strict double jeopardy limitation of the Constitution.
To pursue Manafort, the New York prosecutors had to slip through a few technical loopholes in the law. Under the concept of “separate sovereign,” the legal bloodhounds in the Big Apple could go after Manafort for the 10 of the 18 counts for which there was no verdict – basically a hung jury. Even in such cases, however, lower courts refrain from picking over the bones of the bigger cases.
Since they will be prosecuting charges that were unresolved, the New York prosecutors will be essentially putting the same charges before another court. And even worse for Manafort, they are charges closely related to the eight charges to which he pled guilty. His own testimony can be used against him in the new trial. So, Manafort not only faces double jeopardy, but also loses his protection against self-incrimination under the Fifth Amendment. His guilty pleas are now matters of public record.
As I have previously written, prosecutors are as much the enforcement arm of the political powers to which they align as they are enforcers of the rule-of-law. We saw that in the Democrat controlled courts in the old segregationist south, and we see it every day across America – especially in major urban centers where longstanding political machines control the judicial process.
Anyone who follows politics and the courts is aware of the fact that cases with political ramifications are prosecuted or not prosecuted based on the political culture of the prosecutors. Prosecutors at all levels are among the most political public servants. They derived their positions by political appointment or election.
If you have any doubt that prosecutors are political animals, just count the number of public officials who are former prosecutors. Then count all the media personalities and political pundits who are former prosecutors. Within our lawyer ruling-class, the prosecutors are the most represented, the most powerful and the most dangerous of the breed.
What Bharara inadvertently blurted out was that prosecutors operate under the rule-of-politics as much as the rule-of-law. Am I the only one who noticed Bharara’s inadvertent “truth telling”
So, there ‘tis.