Cuomo Pushes Back Hard Against Bharara From Behind The Scenes

US Attorney for the Southern District Preet Bharara warned Governor Andrew M. Cuomo to stop tampering with potential witnesses in his Moreland Commission investigation a couple of weeks ago, but that hasn't stopped Cuomo from meddling in the matter.

After the Bharara warning, Cuomo said the U.S. Attorney had made it clear that “on going public dialogue is not helpful to his investigation,” and the governor would “have no additional comment on the matter.”

But neither the Bharara warning to stop meddling with witnesses nor Cuomo's assertion that he would make no more public statements about the Moreland investigation are keeping Cuomo and his camp from manipulating and finagling things behind the scenes.

To wit, take a look at the events of the last three days.

On Thursday we got Charlie Rangel, a politician with some links to Cuomo (and ethics issues of his own) attacking Bharara in public statements:

Gov. Andrew Cuomo at least has Congressman Charles Rangel in his corner.

Mr. Rangel, who secured Mr. Cuomo’s endorsement during his most recent re-election bid, offered a defense of Mr. Cuomo’s handling of an anti-corruption commission he created, even questioning the validity of a federal investigation now aimed at the governor.

“I know that most of the attacks are coming from the New York Post,” Mr. Rangel told Observer today, claiming the right-leaning tabloid (and not the New York Times, which ran a front page story about Mr. Cuomo’s Moreland Commission) was fermenting the controversy. “We have a commission where the commissioners said that no one interfered with them and we have the New York Post saying they don’t believe them.”

“The fact is, no prosecutor should be critical of anybody until the case goes before the grand jury. That’s our system of government and I’d really hope he’d have a thorough investigation of the whole thing. That’s the only way fair-minded people should look at issues like that,” Mr. Rangel continued, speaking of U.S. Attorney Preet Bharara. “There’s certain people who make the accusations just to make a headline in the newspaper.”

OK, doesn't take a genius to see Cuomo's fingerprints on this attack - Rangel, who struggled for endorsements in his re-election bid, is paying back Cuomo, who did endorse him (albeit late) in the cycle.

And the line of attack is a pattern we're going to see going forward - Preet's an out-of-control cowboy looking to fatten his press clippings scrapbook (“There’s certain people who make the accusations just to make a headline in the newspaper.”)

The Wall Street Journal, a newspaper that often serves as an unofficial public relations outfit for Andrew Cuomo and the Cuomo administration, published an article last night that continues this line of attack:

Manhattan U.S. Attorney Preet Bharara has charted a confrontational and independent course in his investigation of New York Gov. Andrew Cuomo's disbanding of an anticorruption commission, former prosecutors and political observers said.

Mr. Bharara has launched a broad inquiry, including publicly criticizing the governor's dissolution of the commission and using tough prosecutorial tactics, all without seeking approval from the Justice Department in Washington, according to people familiar with the matter.

Prosecutors customarily inform the department of matters of national importance, current and former federal officials say, though the Manhattan U.S. attorney's office, arguably the most powerful of the 93 nationwide, is given more free rein.

George J. Terwilliger, a top Justice official in the Ronald Reagan and George H.W. Bush administrations, and now a partner at Morgan Lewis & Bockius LLP, said prosecutors tread on dangerous terrain when cases spill into public view. "The normal way federal prosecutors operate is they shut up until they put up," he said, speaking generally and not about Mr. Bharara.

Here we see a doubling down on the line of attack that Preet's a cowboy acting on his own - the WSJ report says he has launched a "broad inquiry" (i.e., a "fishing expedition"), taken the extraordinary measure of publicly criticizing one of the potential targets in the investigation (i.e., he should "shut up until he puts up") and hasn't had the Obama White House or Department of Justice sign off on his investigation ("all without seeking approval from the Justice Department in Washington.")

The Journal writer gets some off-the-record attacks from "former federal prosecutors" to back up this line of attack - Bharara's an out-of-control cowboy out on his own:

A key staffer in congressional investigations of the George W. Bush administration's firings of U.S. attorneys, Mr. Bharara has steered an independent path since he was nominated by President Barack Obama in 2009. But his approach to the Cuomo administration investigation has been unusually confrontational, former prosecutors say.

Mr. Bharara's tactics have included criticizing Mr. Cuomo during a radio interview in April for agreeing to disband the commission in exchange for lawmakers passing the ethics-overhaul bill that he sought. Mr. Cuomo has defended the deal.

Mr. Bharara also issued preservation notices to state lawmakers and to the governor's office, instructing them to retain all records and documents related to the Moreland Commission. Generally, former federal prosecutors said, U.S. attorneys simply issue subpoenas.

He took what former prosecutors called a rare step when he sent letters to Mr. Cuomo's office and the commission, saying the administration's contact with commissioners could represent witness tampering or obstruction of justice. Prosecutors generally don't give warning that actions could constitute crimes in the midst of continuing investigations.

There we see the pattern in the line of attack again:

Bharara's taken an "independent path" that is "unusually confrontational" - issuing preservation notices instead of subpoenas, going on the radio to criticize the shutting down of the Moreland Commission, sending warning to Cuomo's office and the commission over potential tampering and obstruction instead of just issuing indictments.

The former federal prosecutors are all off-the-record, of course, but with Cuomo's having been the state attorney general, it's not much of a stretch to see his fingerprints are behind these off-the-record attacks on Bharara as well.

The WSJ writer than picks up Rangel line of attack, that Bharara's investigation is all political, just Preet looking to advance his own career:

Mr. Bharara is employing these tactics as he grapples with Mr. Cuomo, a former state attorney general whose own investigations damaged former Gov. Eliot Spitzer's standing. Until now, Mr. Cuomo had been building a record as a corruption fighter.

Federal prosecutors in the New York City area have a history of using the U.S. attorney's office to launch political careers, including Rudy Giuliani in Manhattan and Chris Christie in New Jersey. Mr. Bharara has publicly denied having any political ambitions, though his investigations of insider trading have earned him national attention.

We do get a friend of Bharara's to back him up at the end of the WSJ piece:

Mr. Bharara's supporters said his prosecutions are apolitical. 

"Preet doesn't care about his win-loss record," said Viet Dinh, an assistant attorney general in the George W. Bush administration and close friend of Mr. Bharara. "What he really cares about are what the facts are and the integrity of his investigation."

But the overall gist of the article is, Bharara's an out-of-control cowboy conducting a criminal investigation for his own political ends and acting in ways that other federal prosecutors who aren't out-of-control would act.

The day before, the same WSJ writer co-wrote a piece that questioned what Bharara really had in this investigation:

Mr. Bharara's probe into the actions of the Cuomo administration with respect to interfering with the commission, dissolving it and the aftermath of that decision is now a top focus of prosecutors, according to people familiar with the probe.

While it is unclear whether he could make a criminal case on that front, Mr. Bharara views the enterprise as a victory even if it doesn't ultimately lead to charges against anyone in the administration, according to a person briefed on the investigation. If his office brings one case that the Moreland Commission failed to refer for prosecution, the investigation will be worth it, the person said.

This article seemed to suggest, as much of the conventional wisdom around the investigation has, that Bharara will not be able to bring any criminal charges against Cuomo or anybody else in the Cuomo administration for witness tampering, obstruction of justice or conspiracy to cover-up crimes, but will have to settle for maybe bringing a couple more cases against lawmakers.

Again, the thrust of the attack - Bharara is out-of-line, out-of-control, and fishing for something he's never going to get.

Bharara may have warned Cuomo to stay out of the Moreland matter, but that hasn't stopped Cuomo and his camp from trying to engineer the narrative of the investigation from behind the scenes.

Seems pretty clear to me that Cuomo is working very, very hard to undercut Bharara and damage both the federal prosecutor himself and the investigation he is conducting with both the public and the media.

It remains to be seen if that kind of attack will work as Bharara continues his investigation and the grand jury he has convened continues to hear testimony and evidence.

But what we don't need to wait to see is Cuomo's desperate maneuvering to try and save himself - if you're watching closely, that's all over the news these past three days.