SDNY: This Bears Watching

Emailer Jim brought this NYT article to my attention. The title struck me as somewhat odd in tone. Maybe it's just me, but it struck me as, I dunno, just a bit defensive--as if the NYT thought it had something at stake here, too:

U.S. Prosecutors’ Bid to ‘Bury’ Evidence Draws Judge’s Wrath

In an unusual opinion, a federal judge criticized the U.S. attorney’s office in Manhattan for its handling of a high-stakes Iranian sanctions case.

What I mean is this. The NYT seemed to regard this opinion as unusual coming from this judge. The judge in question, it goes without saying, is as liberal as you can imagine: Alison Nathan. And the context in which this opinion has to be considered is the fact that the US Attorney's Office for Southern District of New York (SDNY) has been:

1) Over the years, a feeder for the Deep State, and

2) Most particularly, a thorn in the side for the Trump administration.

The article itself characterizes the USAO as:

known for its fierce independence and ... once described as a steppingstone for law’s best and brightest. Its alumni have gone on to become F.B.I. directors, New York police commissioners, a United States attorney general, Supreme Court justices and partners at New York’s premier law firms.

FBI Directors, the law's best and brightest? Oh, that would include the disgraced former FBI Director Jim Comey, but that's omitted. Nevertheless, you get the picture.

In particular, the NYT seemed to find the opinion "unusual" because it came, more or less, on the heels of the Trump/Barr ouster in June of then USA Geoffrey S. Berman. If you want to refresh your recollection regarding that episode, I refer you to The Meaning Of The Berman Firing. That post quotes at length from a blog entitled The US Is In A Civil War (And Why Berman's Firing Matters), as well as other commenters who saw the importance of what was going on. It's worth the time to reprise that episode.

While the planned replacement for Berman was thwarted, Berman was removed. So, with that in mind, get a load of this ... Oh, and don't forget that another hearing in the Flynn case is coming up.

In March, federal prosecutors in Manhattan said they had won a major victory in the government’s fight to enforce sanctions on Iran when a jury convicted an Iranian man who was accused of illegally funneling more than $115 million to his family business.

Within months, though, the case fell apart, and prosecutors asked the judge to dismiss the charges against the man, Ali Sadr Hashemi Nejad, after acknowledging problems in the way they had turned evidence over to the defense.

In one instance, a prosecutor had proposed to a colleague that they “bury” a document that should have been provided to the defense. The judge overseeing the case soon vacated the conviction and started her own inquiry.

 

OK, I'm working without a timeline or the opinion--sorry, still rushed--so I can't be sure. Nevertheless, if the "major [but fleeting] victory" occurred in March, but fell apart "within months," that would seem to get us uncomfortably close to Berman's ouster. And in fact, Berman's ouster came shortly before the USAO was required to reply to Judge Nathan, in July. I'm guessing that Berman thought he could skate through this. Why do I even mention Berman, the USA in a huge office--surely this was misconduct by AUSAs? The judge has that covered, or so it seems.

On Wednesday, in a highly unusual decision, the judge, Alison J. Nathan of Federal District Court, excoriated the government for its handling of the case and also took aim at the office’s leadership for having “failed to unequivocally condemn these prosecutors’ improper actions and communications.”

Judge Nathan cited the office’s admission that it had repeatedly violated its obligations to disclose evidence to the defense, its making a misrepresentation to the court and other errors.

I hope that reminds you of the Flynn case. I assure you that the "law’s best and brightest" around the country but, especially, in the corridors of judicial power are taking note of this. The judge wants the USAO to conduct a coordinated response:

 

“The manifold problems that have arisen throughout this prosecution — and that may well have gone undetected in countless others — cry out for a coordinated, systemic response from the highest levels of leadership within the United States attorney’s office for the Southern District of New York,” the judge wrote, using the office’s formal name.

Judge Nathan focused particular attention on how, after prosecutors discovered the document that should have been shared with the defense, they spent almost 20 hours “strategizing how best to turn it over,” and “one prosecutor suggested to another that they ‘bury’ the evidence along with other, already disclosed documents.”

That's as may be. Fortunately Bill Barr will surely want to help in that coordinated response. After all, why leave a "systemic response" to just "the highest levels of leadership within the United States attorney’s office for the Southern District of New York"? AG Barr just gave a fine and uplifting address at Hillsdale College--so appropriately, on Constitution Day--in which he pointed out that, when it comes to "ensur[ing] our system does its work fairly and with proper recognition of the many interests and values at stake," there's no substitute for "political accountability." That's right--Barr means himself. It's true that USA's are political appointees as well, but the Department has a lot at stake in this, too. I'm gonna bet that Barr is totally all over this.

The article continues:

The opinion came at a sensitive time for the office, which is known for its fierce independence and was once described as a steppingstone for law’s best and brightest. Its alumni have gone on to become F.B.I. directors, New York police commissioners, a United States attorney general, Supreme Court justices and partners at New York’s premier law firms.

...

In June, President Trump abruptly ousted Geoffrey S. Berman, the U.S. attorney at the time, in a move that was widely seen as an effort by the Trump administration to curb the office’s independence; Mr. Berman’s top deputy, Audrey Strauss, was named to lead the office on an acting basis.

Ask yourself this: If Berman was ousted and Strauss was his top deputy, wouldn't it seem better to bring in someone from outside to conduct that "systemic response"? The time seems ripe to me!

I'll bet that wasn't lost on the NYT, because they deploy a beloved Prog "legal ethics" professor to do a bit of damage control--it that were possible in the circs:

 

Stephen Gillers, a legal ethics professor at the New York University School of Law, said of the opinion that Judge Nathan issued on Wednesday, “This is an incredibly dispiriting autopsy on the work of the premier prosecutorial office in the nation.”

Yeah, well, if your name isn't Andy McCarthy you may not be entirely surprised--you may well have had some doubts all along regarding "the work of the premier prosecutorial office in the nation.” And this "autopsy" is especially dispiriting for Progs, who know that it provides the opening Trump and Barr have undoubtedly been hoping for.  

And it gets worse:

 

Professor Gillers said the case suggested that problems with how prosecutors comply with a landmark 1963 Supreme Court decision, Brady v. Maryland, that requires them to turn over evidence that may help a defendant might be more widespread than is understood.

“If even this office can be so seriously criticized for its failure to honor Brady,” he said, “then one wonders what less-esteemed offices may be doing.”

Indeed, one does wonder that. On the other hand, given some of the shenanigans we've seen from the SDNY over the years, one does also wonder whether one should be talking about "culture of corruption" with specific regard to the SDNY. That's not intended to give a free pass to "less-esteemed offices," and certainly not to the late unlamented Special Counsel Office--as little esteemed as the SCO may be. Still, one wonders about the SDNY.

Audrey Strauss, Berman's replacement and former top deputy to Berman, responded predictably--the judge must somehow be mistaken!

 

A spokesman for Ms. Strauss’s office declined to comment on Wednesday. In a letter to the court in July, after conducting its own inquiry, the office wrote, “We do not believe any of the attorneys assigned to this case acted in bad faith or intentionally withheld exculpatory information.”

But the prosecutor’s office wrote that “many items were discovered or disclosed far too late,” and the office revealed the internal communication in which the prosecutor suggested that they “bury” the particular document, saying the manner in which it was disclosed “was problematic.”

Right. "Bury" the document is "problematic" but somehow doesn't suggest "bad faith". If you buy that, there's a bridge leading from the SDNY to a nearby borough that I'd be interested in selling you.

How bad could this get? This had to be an incredibly bitter pill for the entire legal Prog establishment, especially coming from Judge Nathan. She actually urges DoJ--as in, Bill Barr's DoJ--to get involved: 

The judge urged the Justice Department’s Office of Professional Responsibility to investigate the government’s actions in the case. She added that the record before her did not conclusively establish that prosecutors acted in bad faith or intentionally misled the court, and she indicated she would investigate further.

I think Bill Barr's Department will be only too happy to respond. This bears watching.