‘Who The Hell Is Preet Bharara?’ Ex US Attorney on the Devyani Khobragade Arrest Backlash

When your chosen profession requires making public accusations for a living, you must brace for the fallout. One consequence of all that accusing is angry blowback from the accused and their supporters. Depending on the size of their bullhorn and the aggressiveness of their counsel, they might strike back hard at the prosecutors and agencies responsible. Some of this is to be expected; zealous advocacy is commonplace. But, as we will see, there comes a time to wonder—especially if the target is powerful—whether the pushback has gone from zealous self-defense to interference.

A typical, if upsetting, tactic is to question the prosecutors’ motives, to allege bias and attack their good faith, because if you can discredit the prosecutor, maybe you can cast doubt on the case. Do the words “witch hunt” sound familiar? In the Nixon/Watergate days, these were dubbed “non-denial denials.” They never professed innocence; they just savaged the accusers. Sometimes, distastefully, attacks take on an ethnic or racial tone. At various points over my tenure, depending on who was being prosecuted, SDNY was accused of being anti-black, anti-Latino, anti-Swiss, anti-Chinese, anti-Russian, anti-Italian, and so forth. Also, oddly, anti-Indian.

On other occasions, we were accused of being anti–Wall Street, anti-Democrat, anti-Republican, anti-politician, and even anti-poker. Over time, after we had prosecuted a rainbow coalition of defendants and organizations, you would think it would have sunk in that we were just anti-crime.

The best way to inoculate yourself from ugly disparagements is to keep your head down and let the frivolous criticism roll off your back. But even when criticism is colossally stupid, it can still sting. Criticism is hard to take, especially false claims of bias. I thought I had a thick skin before I became U.S. Attorney, but I was not especially self-aware in this regard. Aristotle once said, “To avoid criticism, say nothing, do nothing, be nothing.” Wise words, but Aristotle didn’t live in the age of social media.

The key is to learn which criticism to take to heart to make yourself better and which criticism to laugh off; which criticism is well placed and which is foolish. The point is not to be dismissive about criticism but to be discerning about it.

Accused parties often grasp at straws in lashing out. Nowhere did I feel that more than when, from time to time, our office prosecuted people who, like me, were of Indian origin. Screams of “witch hunt” in that context were a bit more awkward and hurtful because the argument had to be that not only was I making decisions based on ethnicity but I also was bending over backward to direct agents and prosecutors to investigate people of my own ethnic background. I am not overstating this. I suppose because of the absence of any other Indian American U.S. Attorney at the time and the relative dearth of Indian American defendants, in the minds of some it was a spectacle when my office charged someone from South Asia.

In 2009, just a few days after we arrested the billionaire hedge fund CEO Raj Rajaratnam for insider trading (along with a number of white people, I might add), The Wall Street Journal ran an odd story. This was the first sentence: “It seems like a courtroom drama made for Bollywood: The Sri Lankan hedge-fund kingpin being prosecuted by a fellow immigrant, the Indian-born U.S. attorney for Manhattan.” That would be me.

Now imagine if a major news outlet had run a story like that a year earlier, except about a different blockbuster case: “It seems like a made-for-Broadway drama about the biggest Ponzi schemer in history: Bernard Madoff, who is Jewish, being prosecuted by a fellow Jew, U.S. Attorney Lev Dassin. It’s like something out of Fiddler on the Roof.”

Just imagine the outcry. How long would the writer of that article have remained employed?

I am a bit taken aback at how much was made of these coincidences. My goodness, there’s a South Asian defendant, and there’s a South Asian prosecutor! Holy cow! You know where this happens every day? India.

By happenstance, a small subset of the insider-trading defendants we charged and convicted were of South Asian origin. Never mind that the original investigation and wiretapping of Raj Rajaratnam and his cohorts were initiated by Michael Garcia, my Latino predecessor; never mind that there was overwhelming proof of their guilt; never mind that there was disproportionate membership in hedge funds of highly educated Indian professionals. A growing chorus developed in some of the ethnic press about my self-hating penchant for prosecuting Indian Americans. They included, apart from Rajaratnam, Rajat Gupta, Anil Kumar, Samir Barai, Mathew Martoma.

I was asked about the “controversy” at functions. It irritated me every time. There came a point where career prosecutors would walk into my office and tell me the next round of potential defendants based on confidential informants, wiretaps, or other investigative techniques, and I would breathe a loud and comic sigh of relief if there was not an Indian name. Once, on the eve of announcing a round of insider-trading arrests, an AUSA turned to me abruptly and said, “By the way, Preet, you know that one of the defendants is Indian American.” I was surprised because—again although it didn’t matter and we were racially and ethnically blind on these things—I thought I would have spotted an Indian-origin name in the caption. I said, “Who?” The AUSA said, “Sam Barai.” I said, “Sam’s not an Indian name.” The AUSA added, “It’s not, but that’s the name he goes by.”

I would try to joke about it. At one point, some reporter got juiced up enough on the issue that folks in the office actually tallied up the number of South Asian insider-trading Defendants over time. It was a small fraction of our total, though I suppose disproportionate to the general population. When presented with this absurd thesis, I would try to defuse it with a joke. On one occasion, I said, “Just FYI, everyone, I do not wake up every morning, rise from my bed, fling open the windows, shake my fist at the sky, and say, ‘Bring me the head of an Indian!’ ” At least most days I didn’t do that.

On another occasion, I was asked to introduce a speaker at the annual banquet hosted by the newspaper India Abroad at the Pierre hotel in Manhattan. The event was, as always, full of high-profile Indian Americans, including people from the finance world. During the cocktail hour, I endured someone asking with a straight face why my office prosecutes so many South Asians. Later, as I rose to speak and looked around the room, I thought to myself, how can I poke fun at this nonsense in front of this large crowd?

So, against my better judgment, I went to the podium and began like this: “It’s great to be here this evening. I’m Preet Bharara and I’m the U.S. Attorney for the Southern District of New York. It occurs to me as I look out at all of you and see so many prominent Indian Americans captive in this room, I have something important to say to all of you.” I paused and then said slowly, “You have the right to remain silent.” Laughter. I continued, “Anything you say can and will be used against you in a court of law.” More laughter. “You have the right to an attorney. If you cannot afford an attorney—though that seems unlikely in this crowd—one will be provided for you.”

By the time I was done administering the Miranda warning, there was a good amount of laughter in the audience.

Some individuals seemed to make it their personal mission to perpetuate this insidious narrative. Dinesh D’Souza, an author and commentator known for his extremist, insulting, and evidence-free commentary, pled guilty to charges my office brought against him in 2014 for a campaign finance violation. He knowingly reimbursed straw donors to fill the campaign coffers of a candidate for senate. Despite admitting to his wrongdoing (and his lawyer concluding on the record that he had “no defense” for his client), D’Souza continued to frame his prosecution as an act driven by my own perverse and personal desire to prosecute Indians and Indian Americans.

D’Souza didn’t just call me a “Holder henchman” or a tool in the Obama administration; he also insulted my profession, my family, my appearance, and (ironically) employed Indian stereotypes along the way: “Since Preet Bharara doesn’t have a strong Indian accent he may be employable as one of those tech guys who helps you fix your computer,” he tweeted.

He gloated when I was fired and framed me as someone with a personal vendetta toward my own people. Even after being pardoned in 2018 by President Trump, D’Souza continued to maintain the self-hating Indian theory. The self-described “scholar” tweeted, “KARMA IS A BITCH DEPT: @PreetBharara wanted to destroy a fellow Indian American to advance his career. Then he got fired & I got pardoned.” Classy fellow.