Doing Justice A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law

the Court voted 8 to 1 to strike that down as unconstitutional. The Supreme Court had the last word? No. Despite those decisions, Congress in 1938 once again passed legislation to regulate child labor under the Commerce Clause. The Supreme Court in United States v. Darby (1941) unanimously upheld the statute. The Court decided that its 1918 decision departed from the principles of the Commerce Clause and “should be and now is overruled.”

A contemporary example that undercuts judicial finality involves the Japanese-American cases of Hirabayashi (1943) and Korematsu (1944). In both cases, the Supreme Court upheld the decision by President Roosevelt to place a curfew on Japanese Americans and relocate many to detention camps. A major figure in this policy was General John L. DeWitt, who believed that all Japanese, by race alone, are disloyal.

On Feb. 20, 1976, President Gerald Ford issued a proclamation apologizing for the treatment of Japanese Americans during World War II. In 1980, Congress established a commission to gather facts and determine the wrongdoing by Roosevelt’s order. The commission’s report stated that the order “was not justified by military necessity” and that the detentions “were not driven by analysis of military conditions.” The principal causes were “race prejudice, war hysteria, and a failure of political leadership.” In 1988, Congress passed legislation that acknowledged the “fundamental injustice” of evacuating, relocating, and interning U.S. citizens of Japanese ancestry. With those actions underway, Hirabayashi and Korematsu returned to court to underscore the extent to which executive officials had deceived the judiciary and the general public. In light of that evidence, their convictions were vacated by lower courts during the 1980s. The Supreme Court had sufficient evidence that its decisions in 1943 and 1944 were invalid but chose not to act.

Korematsu was reconsidered in Trump v. Hawaii (2018). For the majority, Chief Justice Roberts noted that the dissent by Justice Sotomayor, joined by Justice Ginsburg, repudiated Korematsu. To Roberts, whatever “rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case.” The forcible relocation of U.S. citizens to concentration camps had no application to actions by President Trump to The dissent’s reference to Korematsu … affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—”has no place in law under the Constitution,” 323 U.S., at 248 (Jackson, J., dissenting).”

If Korematsu was wrong the day it was decided, why did it take the Supreme Court 74 years to finally admit error?

Louis Fisher is a visiting scholar at the William and Mary Law School. He served four decades with the Library of Congress as senior specialist in separation of powers with the Congressional Research Service (1970-2006) and specialist in constitutional law with the Law Library of Congress (2006-2010). He is the author of 27 books and more than 600 articles. Many of his articles and congressional testimony are placed on his personal webpage, http://www.loufisher.org.

By Preet Bharara

New York: Alfred A. Knopf, 2019 345 pages, $27.95

Reviewed by Jeremy S. Weber

Listeners of Preet Bharara’s popular Stay Tuned with Preet podcast do not just stay tuned for the former U.S. attorney for the Southern District of New York’s legal acumen. What makes Bharara’s podcast so beloved is his gentle humanity and his downright decency that stands out in an age of shouting personalities and intractable politics. For those podcast listeners and for the rest of us, Bharara’s Doing Justice similarly works like a warm blanket on a cold night, reassuring us that capable stewards of the criminal justice system exist. There really are people in positions of power who care about doing things right but care even more about doing the right things.

Doing Justice is ostensibly a handbook on the role of the prosecutor, but it is much more of a spiritual guide than a technical manual. Throughout its four sections that track the phases of a criminal matter (inquiry, accusation, judgment, and punishment), Doing Justice stresses the dilemmas and temptations prosecutors face, and the ethical guideposts that the best prosecutors use to resolve these situations. In so doing, Bharara presents a book that is not so much a “howto” for prosecutors but a “what-to.” In his own words, Bharara says that Doing Justice grew out of his desire to provide prosecutors with lessons not from “legal texts and treatises but from the real-life human dilemmas that would perplex them every day.”

The book’s four sections are replete with significant and spot-on examples of the dilemmas and moral principles Bharara lays out. For example, in the inquiry section (appropriately, the longest section in the book), Bharara stresses the fact that justice is carried out by fallible human beings, and emphasizes the need for rigor, humility, curiosity and inquiry, and humanity in conducting investigations. He illustrates this with a powerful example of Eric Glisson, a man incarcerated for 17 years for a crime he did not commit, and the U.S. Attorney Office investigator who cared enough to see that the wrong was righted. Similar first-hand accounts from Bharara’s experience pervade the book, from the moving account of a sex worker who was robbed at gunpoint and the prosecutors who cared enough to achieve a conviction, to the wrenching case of a child abducted at infancy and the difficult decision Bharara faced about what sentence to seek when the crime was discovered years later. Doing Justice is filled with high-minded ideals about what justice is, but “Doing” is the

key word in the book’s title; Bharara writes about the difficulties involved in translating the ideals of justice into action.

Bharara’s significant and fascinating examples come from hard-wrought experience. His service as the U.S. attorney for the Southern District of New York followed a two-decade career split between private law firms and government service, plus time on Senator Chuck Schumer’s staff. At the Southern District of New York, Bharara handled the full gamut of complex and high-visibility criminal (and civil) matters, including domestic and international terrorism, narcotics and arms trafficking, financial and healthcare fraud, cybercrime, public corruption, gang violence, organized crime, and civil rights violations. His office prosecuted figures such as Osama bin Laden’s son-in-law, the Times Square bomber, a Somali pirate, a Galleon hedge fun founder, a Goldman Sachs board member, and members of New York City and New York State governments. His willingness to take on well-connected Wall Street officials earned him the title of “The Man Who Terrifies Wall Street” from The New Yorker and a “prosecutor who knew how to drain a swamp” from The New York Times.

Anyone with such a resume could be forgiven for using a book to brag, but Doing Justice is most relatable when Bharara admits to his limitations and failings. He writes, endearingly,

[s]elf-doubt in moderation is animating and motivating, not paralyzing. Leaders who have purged themselves of all self-doubt will not be leaders for long and, in my view, are dangerous while in command. I learned, over time, that self-doubt is my friend, and arrogance my enemy.

Later, he writes that crooked police and bungling lawyers are not so much the enemy of justice as “decent men and women who fail to maintain excellence, who drift from best practices, who forget to be utterly terrified of getting it wrong.” He writes of difficult decisions he faces with great candor and transparency, often wondering aloud whether he made the right decision and leaving it up to the reader to decide. For prosecutors with a conscience who live in constant dread of mishandling their solemn responsibilities, Doing Justice warrants a place not on the bookshelf but on the nightstand, ready to be read and re-read for assurance that a lack of confidence is more a virtue than a failing. It is a testament to an underappreciated virtue in 21st century America: the need for all of us to be open to the possibility that we are wrong.

In a way, much of Doing Justice can be read as an extended commentary on American Bar Association Model Rule of Professional Conduct 3.8, Special Responsibilities of a Prosecutor. While the book does not explicitly mention the model rule, many of the rule’s themes pervade the book: the duty of the prosecutor not to prosecute a charge known not to be supported by probable cause, the responsibility to timely disclose exculpatory or mitigating evidence or information to the defense, and the obligation to refrain from making prejudicial extrajudicial comments. As a career Air Force prosecutor and judge, I find much in Doing Justice reminiscent of the Air Force’s standards for criminal justice, which stressed that the duty of a prosecutor “is to seek justice, not merely to convict.” The wise and restrained use of prosecutorial discretion is a theme of Bharara, who writes, for example, that exercise of discretion “is a bulwark against over-criminalization,” “a recognition of (and an imperfect fix for) the laziness of legislatures who pass broad statutes, ratcheting criminal sanctions ever upward.” He observes that “[c]riminal prosecution is the bluntest and severest of tools available,” and recognizes that “prosecution cannot solve every social, political, or even public safety problem. It just can’t.”

Readers will find great reassurance in Doing Justice, a renewed sense of faith in the criminal justice system at a time when that faith is sorely tested by political influence and evidence of inequality in the law’s application. Bharara appeals to the better angels of our nature in appealing for a return to basic American values and norms, and warns us of the results if the law (particularly criminal law) loses its moral authority. Doing Justice also serves as a call to public service through the law through soaring Kennedy-esque appeals to our desire to serve the greater good. He writes

The hope is that no man is above the law; that power and privilege do not immunize you from accountability and punishment; that corruption can be fought. And that there are people brave enough to fight it. It shows the universal craving for honest government and the rule of law. Because as it turns out, the dream of honest government, where no one is above the law and the oath of office matters, is the dream of civilized people everywhere.

Doing Justice is a book about the criminal justice system, but it is also much more. Perhaps the most striking aspect of the book is how much it has to say about modern America—both what is wrong with it and how it can right itself. Bharara aptly notes that the same problems that affect the law affect all of us in our daily lives, but the law can also show us how to deal with those problems. The tools of the law—debate, listening, being open to criticism and other views, and reason—can bridge the divide that engulfs our country. He writes

It turns out that the law has something to teach us about truth, dignity, and justice. About how to resolve disagreements and disputes—with reason and evidence rather than taunts and character assassination. Much of what passes for argument in the public square these days would be laughed out of court.

Most moving is this passage about how discussion in modern society differs from courtroom proceedings:

I think too many people take advantage of their right to cloister, to live in their little echo chambers, to settle into small societies of like-minded souls, never taking the time to test and strengthen the rightness of their beliefs through searching inquiry, vigorous debate, and open dialogue. There is no such luxury at a criminal trial. There you cannot hide in your self-absorbed bunker, especially if you are the prosecutor. People are paid and obliged by oath and blessed by the Constitution. To do what? To attack every single allegation and argument you have made. And to do it with great zeal. So in that world you have to engage with your critics. And you must engage using facts, truth, and logic. You cannot just say, “I believe this” or “These are my alternative facts.” Honest engagement is the essence of the job. And it is the most exhilarating thing in the world.

We malign lawyers as litigious and combative, often deservedly so, but I vastly prefer the spirit of respectful engagement and combat to what we have now in so many parts of society—siloed self-congratulation, self-affirmation, without risk of challenge or dissent or real and respectful debate.

This passage particularly struck home. The idea should make us all proud to be part of a profession where honest debate and persuasion still take place.

The only real criticism of Doing Justice comes not in what it says but what it doesn’t say, particularly on race. The book says little of the dangers of racial bias that have plagued our justice system, and some of what it does say involves the reverse problem of “positive bias,” as Bharara calls it—the danger in believing that rich, powerful, and resected people cannot engage in crime. Doing Justice was released in 2019, a year before protests over racial injustice again erupted. As a prosecutor born in India to a Sikh father and a Hindu mother, Bharara’s voice can be a prominent one in exploring the issues of race and justice, just as it often is on his podcast. It is unfortunate that the timing of his book did not drive exploration of how race plays into the ethical duties of the prosecutor. Another unfortunate victim of the timing of the book’s release is that Bharara’s appeals to the rule of law, to peaceful and respectful debate, and to higher values beyond mere adherence to the law seem quaint in light of the insurrection fomented at the Capitol Building on Jan. 6, 2021. Bharara takes the high road throughout this book, never mentioning the darker elements of society that led to the insurrection. Perhaps these subjects can be the basis for Bharara’s next book in addition to podcast episodes.

Doing Justice is at once an appeal to virtue and a warning of the dangers for missteps or abuse in the legal system. The best teachers tend to be those who step behind the comfort of the podium and take the risk of revealing their humanity. Aspiring and active prosecutors—along with many others—will learn much from Bharara’s hard-earned lessons. 

Jeremy S. Weber is the deputy district counsel for military programs at the U.S. Army Corps of Engineers, Sacramento District. He is a retired Air Force judge advocate who served as a criminal appeals judge and as a law professor at Air University. He has authored numerous law review articles in military and civilian journals. The views expressed in this book review are solely those of the author.

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