DOJ moves to dismiss appeal that seeks judicial disqualification in FOIA lawsuit

The DOJ’s legal filing would keep an allegedly biased judge in charge of FOIA litigation.

By Progress New York Staff

The U.S. Attorney’s Office for New York’s southern district has filed a motion in the U.S. Court of Appeals for the Second Circuit, moving to dismiss an appeal seeking the removal of a judge overseeing open records litigation. The Government’s motion follows the filing of a brief and affidavit by the editorial team of Progress New York.

The appeal seeks the recusal of U.S District Court Judge John Koeltl from litigation that, in turn, seeks the full release of records of speeches given by former U.S. Attorney Preet Bharara. The open records litigation commenced after the U.S. Department of Justice, the Government Agency in charge of the records, refused to process a request filed under the Freedom of Information Act and refused to process an administrative appeal of the intial refusal to release records.

During his tenure as the top Federal prosecutor for New York’s southern district, Mr. Bharara’s office defended his constant delivery of speeches as being related to his official capacity. In the District Court case, over which U.S. District Court Judge Koeltl is presiding, the U.S. Attorney’s Office, which represents the U.S. Department of Justice, has argued in a legal brief, in relevant part, that, … “[P]ublic disclosure is not always in the public interest.”

The appeal was commenced after U.S. District Court Judge Koeltl made statements at an Intial Conference of the parties that were described in appeal filings as prejudicial and to the detriment of the full release of records being sought by the open records litigation. The appeal focuses on a Transcript of the Initial Conference that does not include the prejudicial statements allegedly made by U.S. District Court Judge Koeltl, who has discretion over correcting, or not correcting, the Transcript.

In the time between the making of the prejudicial statements and the filing of the appeal, the editorial team behind Progress New York made several attempts to settle the litigation on the condition of proactive disclosure of records by the Agency, but the U.S. Attorney’s Office refused every offer to settle. Approximately 400 pages of known speech records have been withheld or redacted, and no disclosure of records have been made regarding dozens of speeches or references to speeches, according to an analysis performed by Progress New York.

During his tensure as U.S. Attorney for New York’s southern district, Mr. Bharara complained about the lack of openness in State and Municipal Governments, saying once, during a 2013 speech before the Citizens’ Crime Commission, in relevant part, that, “[T]here is a substantial transparency problem throughout New York government,” according to a transcript of his prepared remarks.

An analysis by Progress New York of at least some of the records released by the Agency showed that some of the hosts or sponsors, either actual or proposed, of former U.S. Attorney Bharara’s speech-making engagements have included large law firms, such as Orrick, which have large white collar criminal defense, securities litigation, or compliance practise groups. These large law firms generally represent the largest corporations, some of which were targets of investigations by the U.S. Attorney’s Office or the U.S. Department of Justice during the time when Mr. Bharara was the top Federal prosecutor for New York’s southern district.

Seemingly an advocate for transparency, Mr. Bharara has remained silent about the Government’s withholding of his speech records. Instead, he is focused on delivering a manuscript to Alfred A. Knopf, a division of Penguin Random House, for a book deal described by The New York Post to be valued at $1 million. The ability for publishers to earn a return on huge author advances usually depends on exclusivity of information in a book that will make books become bestsellers with the reading public.

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