OPINION

Preet Bharara’s victories keep melting away

By Charles Gasparino

July 13, 2017 | 7:01pm

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Among the most frequent — and, at least according to those on the left, credible — critics of President Trump has been Preet Bharara, who was the most powerful federal prosecutor in the country until Trump fired him on March 10, along with 45 of his fellow US attorneys.

That credibility took a hit Thursday, when an appeals court vacated the conviction of former Assembly Speaker Sheldon Silver. Silver’s conviction was supposed to be a major feather in Bharara’s cap. Now his record of having convictions overturned will, deservedly, get more scrutiny.

Like any prosecutor, Bharara had his strengths and weaknesses. He’s among the most engaging prosecutors I know, which ensures the public is properly educated on the policy reasons behind Bharara’s crackdowns on the rich and powerful.

As US attorney for the Southern District of New York, Bharara made a name for himself by punishing Wall Street malfeasance and politicians’ dirty play. Amid his numerous prosecutions, Bharara became a media darling, got on the cover of Time magazine and was frequently mentioned for future political office.

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When he was abruptly fired by Trump, it was a sign, some said, that the president was worried that a take-no-prisoners prosecutor might turn his sights on the White House in the search for fire among the smoke of Trump’s Russia scandals.

Bharara has done little to dispel that perception in interviews and his tweets attacking the president. And the press has eaten it up, since Bharara’s attacks confirm their own biased account of the illegitimacy of the Trump presidency and the penchant of people in his orbit to break the law to win the 2016 election.

But after Thursday’s decision to overturn the Silver verdict, it’s time to weigh Bharara’s own record and credibility on legal culpability.

Silver was convicted on charges brought by Bharara’s office of exchanging bribes for political favors. But the appellate court ruled that the notion of what constitutes a bribe and a political favor was too broad given a recent Supreme Court ruling. In other words, the standard used to convict Silver could include normal interactions between constituents and pols. Many such interactions make for great stories even if they aren’t necessarily crimes.

But using the standard that Bharara used in the Silver case (and, arguably, his case against former Senate Majority Leader Dean Skelos, who was busted on similar charges and is also appealing his conviction), the prisons would be filled with people who made a campaign contribution so they can get a meeting with a politician.

This broad interpretation of what constitutes a crime also infected Bharara’s much-heralded crackdown on insider trading. Yes, Bharara put plenty of people in jail for trading on what’s known as “material nonpublic information,” and some made perfectly reasonable targets.

But some were absurd, and courts agreed. People on Wall Street trade stocks on information, much of it nonpublic, all the time. What they can’t do is steal or misappropriate that information.

In several cases, Bharara expanded the definition of misappropriated information so much that it appeared — at least according to the appellate courts — to criminalize information that the trader might not have known was stolen in the first place.

With that, a slew of insider-trading convictions were overturned.

Bharara, now a private citizen and law professor at NYU, would no doubt say I’m cherry-picking his duds and that his overall record as a prosecutor is strong. (He declined to comment.) But I’d say the case against Silver (which prosecutors will retry) and the overturned insider-trading convictions are pretty big cherries.

I’d also say this: What looks like sleazy or stupid behavior often isn’t illegal. Don’t believe me? Just read the appellate decisions that overturned Bharara’s cases. People do dumb things — like, say, meet with Russian operatives with promises of campaign dirt — not because they want to break the law (intent is a prerequisite of any criminal case) but because they’re dumb and the law itself is so ambiguous that the lines are blurred.

Keep that in mind the next time some politician says Donald Trump Jr. is guilty of treason because he met with some Russian, or Preet Bharara takes a swipe at the president. You probably won’t have to wait for long.

Charles Gasparino is a Fox Business senior correspondent.