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Saturday, March 11, 2017

Preet Bharara Got "Fired" As His Brilliant Strategic Move

Breaking news never sleeps. On Saturday, Manhattan's U.S. Attorney Preet Bharara was fired by the Trump Administration after refusing to tender his resignation, as requested on Friday. Bharara himself confirmed the firing, using that precise term in his own tweet, from his own personal account.

This news needs to be viewed both in the proper context, and in a strategic context.

Background: A total of 46 sitting U.S. Attorneys, all appointed by President Obama, were requested to submit their resignations yesterday.

Further background: Submitting your resignation is not the same as an automatic resignation. It allows the Trump Administration (as with predecessor administrations) to accept or decline the resignation. It also allows the administration and the President (at whose pleasure all executive branch officers serve, let's remember) to exercise the discretion which it has, to decide when to terminate an appointee. 

Great lawyers think strategically. This could all be strategic. Not by Trump. But by Bharara.

First, Bharara may have anticipated being fired, or may have been looking for a way out without necessarily resigning or compromising any ongoing investigation (either civil or criminal) in the office of the United States Attorney he runs in Manhattan. 

As a result of his federal post as United States Attorney, Bharara would face potential conflicts and ethical hurdles if he negotiated big firm job offers -- likely quite lucrative -- while still in the federal post. That is because some of those firms representing corporate and individual clients who are (or were) witnesses, subjects or targets of investigations, or defendants. His conflicts would not merely be with cases he handled; he would face conflicts from any case or investigation before his entire Office of the United States Attorney in Manhattan.

That's a huge office. That means a huge list of potential, active conflicts. 

Some of those conflicts remain with regards to clients he cannot represent if or when he moves to a law firm, assuming that is even an option or desire on his part. Now that he is a "fired" and "former" federal employee, Bharara can have those discussions -- assuming, again, that he even wants to move into private sector legal practice.

He can also collect $400 per week in unemployment benefits. New York State allows a fired employee to collect $420 per week for up to 26 weeks. 

Plus, Bharara reserves the rights all fired employees have, including the right to sue for wrongful termination. One never knows what could happen.

And should Preet Bharara have political ambitions in New York City or New York State, suing President Trump for wrongful termination would be an absolutely brilliant optical and strategic move, if not necessarily a winning legal or financial move.

But overall, forcing and then publicizing his own firing looks like one great strategic play by Preet Bharara. 

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