U.S. Attorney Preet Bharara was scolded by a federal judge today for his comments to the press and his office's tweets in the aftermath of the arrest of former New York state Assembly speaker Sheldon Silver. The embattled longtime Assembly leader had requested that his indictment be dismissed because of Bharara's comments, which his attorneys described as prejudicial, but the case will go on despite the judge's criticism.
"The U.S. Attorney ... strayed so close to the edge of the rules governing his own conduct that Defendant Sheldon Silver has a non-frivolous argument that he fell over the edge to the Defendant's prejudice," U.S. District Judge Valerie Caproni said in an opinion released Friday afternoon.
Caproni described Bharara's actions following the arrest — including a press conference, a speech given at New York Law School, and an interview with MSNBC two weeks later — as a "media blitz orchestrated by the U.S. Attorney's Office," and "brinksmanship relative to the Defendant's fair trial rights."
Caproni refused to throw the case out, saying there is "no evidence that the U.S. Attorney's comments 'substantial[ly] influenced' the grand jury's decision to indict." Bharara's public comments had, however, drawn criticism in the legal community.
The judge said that some of Bharara's comments at the press conference "could reasonably have been interpreted to reflect the U.S. Attorney's personal views as to Silver's character or guilt with respect to the charges filed against him," including when Bharara said "the greedy art of secret self-reward was practiced with particular cleverness and cynicism by the Speaker himself."
Pace University law professor Bennett Gershman wrote in an article for Slate that Bharara had "vilified Silver's character and proclaimed his guilt" and that Bharara had "appear[ed] to violate" rules that limit comments prosecutors can make in public about a defendant. While prosecutors can explain the charges against someone, Gershman argued, "the rules prohibit a prosecutor from making subjective statements that assail the character of a defendant or from insinuating opinions about the defendant's guilt."
Caproni specifically said that ethics questions like the one Gershman raised weren't relevant to Silver's efforts to throw out the case, all while strongly hinting that she disapproved of Bharara's conduct. She noted that "while certain statements may have violated the disciplinary rules by offering opinions as to the defendant's guilt, the court was not obliged to rule on such violations outside of the context of a disciplinary proceeding,."
Silver was indicted on charges of wire fraud, mail fraud, and extortion relating to work he had done with small legal offices who worked on real estate taxes and abestos litigation. The indictment came after Silver's January arrest and after Bharara's comments about the case. Silver has pleaded not guilty.
Bharara has an especially bright public profile for a prosecutor — he has appeared on the cover of Time magazine, gives frequent speeches, addresses financial and legal industry events, and sometimes gives long interviews to journalists like WNYC's Brian Lehrer.
Caproni focused on Bharara's press conference on Jan. 22, the day of Silver's arrest, a speech he gave the next day, and an interview with MSNBC two weeks later. In the press conference, Bharara assailed the "show-me-the-money culture of Albany," the New York state capital.
Bharara's office Twitter account also faced criticism from Caproni. The prosecutor's office had argued that one of the tweets that excerpted the speech—"Silver monetized his position as Speaker of the Assembly in two principal ways & misled the public about his outside income"—shouldn't be read in isolation, but in the context of a longer press release the office had put out.
"This argument ignores the fact that the most problematic tweets contained no links to the press release or Complaint," Caproni wrote. "Moreover, this argument disregards the substantial known risk that, in communicating via a platform that limits messages to 140 characters and permits readers to 'retweet' a single communication, one's statements will in fact be read in isolation."
While Caproni would probably not phrase it this way, she was more or less arguing that tweetstorms aren't themselves a single statement but instead a series of individual statements that can be read and retweeted (and legally examined) in isolation.
"For the foregoing reasons, the Defendant's Motion is DENIED," Caproni wrote. "Nevertheless, the parties are cautioned that this case is to be tried in the courtroom and not in the press."