September 9, 2020 • 36 mins
What will the future of justice look like in this country? How can we recover from the corruption and abuses of the Trump era? Preet Bharara is the perfect person to answer these questions because of the work he’s done as the former United States Attorney for the Southern District of New York. He joins Pete to discuss the consequences of political interference at the DOJ, why Trump’s time in the White House won’t mimic Nixon’s, how “deepfakes” may be our next big disaster, and what the future looks like for the Department of Justice.
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Episode Transcript
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Speaker 1 (00:05):
Hi, I'm Pete Bag and welcome to the Deciding Decade.
One reason I wanted to launch this podcast is because
I believe we are at the outset of the decade
that's going to shape the rest of our lives in America.
Now that decade has begun with a challenging year, to
(00:27):
put it mildly, and yet I also feel from the
position of that THEIES could wind up being the threshold
of a new and I hope much better, fairer, and
more decent period in American history. For that to happen,
they're going to have to be a lot of decisions,
not just policy decisions, but in our ordinary lives across
(00:50):
our culture about what kind of country we're going to be.
And those decisions will happen in every field. One of
the most important fields is the law. Like so many Americans,
I've been thinking a lot about justice and accountability, and
I'm thinking about what the future of justice can look
like in this country, in this moment and in the
(01:11):
post Trump era. How do we make sure the Department
of Justice and our whole judicial system actually help everyday people,
not Wall Street, and not for example, a corrupt president.
In my mind, Preet Barrara is the perfect person to
help us face these questions because of the work he's
done in the Southern District of New York. He formed
the Terrorism and International Narcotics Unit and led the charge
(01:33):
in several high profile convictions, including Osama bin Laden's son
in law, international arms traffickers, heads of major financial organizations,
members of hacking groups, and more. You've likely seen his
name in the news because of all of these incredible accomplishments,
or because of his highly acclaimed book Doing Justice, or
his popular podcast Stay Tuned with pret or perhaps because
(01:57):
he was fired by President Trump and not in an
apprentice sort of way three months into that presidency. Another
topic that I'm looking forward to delving into. Welcome free,
Thanks for making time and great to have you. Thank you,
mayor Pete. May I still call you, mayor Pete. I'll
still answer to it. Okay, it's it's it's not. Heored
to be here. Thank thanks for having me. So so
many things I'm eager to talk with you about. But
(02:19):
first I wanted to rewind into your story a little
bit because the immigrant experience, I think is is front
and center and how we're thinking about what it means
to be American and and the relationship that people have
to this country. You were born in India and two
years later, I believe you and your parents immigrated to
the U S settled in New Jersey, and uh, I'm
just curious what motivated them to come to the US,
(02:41):
what was their experience like, and what was your experience
like growing up here in the US. That's an issue
that obviously is an important one for policy reasons, political reasons,
legal reasons, and I've dealt with those issues both as
yours attorney and when I was working in the Senate
for for Chuck Schumer. But obviously it's a very personal issue.
It might dad left the place of his birth and
(03:02):
took me from the place of my birth for the
same reason that millions and millions of people have done
so over generations. And that's because of the promise of
a better life and promise of opportunity which he thought
he could get only in the United States. And that
is why it's so disconcerting and distressing to see, you know,
certain policies being enacted, certain kinds of rhetoric being used
where people like my mom and my dad, you know,
(03:23):
wonder a little bit if the country is as open
and welcoming as it was back in the early nineteen
seventies when they came to America. I wrote a piece
a couple of weeks ago about this little voice that
I imagine is in every immigrants head that says, after
having done the very, very difficult thing, people would not
appreciate it. You don't just sort of pack your bags
and come to America and like it's easy. It's really hard.
(03:44):
My dad is one of thirteen, my mom was one
of seven, and other parents were still alive. And to
leave every friend, and leave every tradition, and leave your
food and your culture and your language behind. Let's go
to a place that has a lot of promise. It's
still not an easy thing to do. And I imagine
this voice and every immigrants head asked to the question,
was it the right thing to do? Was it a
good decision? And you hope and believe if you become
(04:06):
successful in my parents children, you know, my my brother
and I both became successful here, and you think, yes,
you know it was worth it, it was right. But
there are moments when you see this rhetoric and you
see certain things happening, and you see the travel bands
being enacted, and you wonder, you know, am I really
being accepted in America fully or only only superficially, and
then I just grandfathered in or other people like me
still permitted to come and experience opportunity and achieve great
(04:29):
things in this country. And you wonder about that sometimes.
You know, I've had a blessed life. My father and
mother both have they're both still with us, and my
brother too. But it's an astonishing thing when not long ago,
Kamala Harris who speak to be the VP. You know,
she's black, also Indian, and it's that moment where I
imagine people if my mom was the most excited person
I talked to that day, she because she usually she's
(04:51):
calling up and asking about my kids and about how
other things are going. All she wanted to talk about
was was Kamala Harris because she was so excited. And
I thought to myself, it's a little bit of a
clarion loud answer to the question was it worth it? Well, yeah,
if someone whose parents are like my mom and dad,
if she could be the Vice President States of America,
well then yeah, this was the right thing to do.
(05:12):
This was the right place to come so that's a
long winded way of saying, yeah, I think about it
a lot. You know, there are not a lot of
Indian people in Central Jersey at the time. There were
no real Indian restaurants, and we had a normal life
other than you know, people had a lot of questions
when I was a child in elementary school and people
would say where you from and I would, you know,
explain that I was born in India. I was Indian.
(05:34):
People would ask me if I lived in a TP
I think. I think that the kids my children go
to school with now don't make that mistake. But we
had We had a normal American upbringing. You know, I
played Little League baseball for one year and then I
was terrible. My brother played for a long time, and
you know, we grew up with my mom cooking Indian
food at home and listen to Indian music at home.
(05:55):
And my mom's a great cook. She learned how to
make you know, Italian food in American food with and inflections,
doing fusion before it was cool exactly. She would make burgers,
but they would have a little bit of spice. And
it took a lot of, you know, some more years
for the general American palate to become familiar with Indian food,
and how they need food is everywhere. Look how far
we've come, I was gonna say. I mean, one one
(06:16):
interesting thing I think through our lifetimes in America has
has been seeing the country grow more and more cosmopolitan.
I know my family experience is a little bit different,
but my father immigrated from this tiny island country of Malta,
whose whose culture is roughly like that of Italy or
Sicily in a lot of ways. And you know, something
as simple as you'd make espresso after dinner that was
(06:38):
like a weird immigrant thing when I was a kid.
That made us kind of weird and different. And you know,
by the time I'm finishing college, it's cool. So so
you have this upbringing, then it leads you to some
of the most exclusive, prestigious, and excellent educational experiences that
an American can have, Harvard Colombia. So I want to
get to how your legal career begins, because if I
understand it right, you start your career doing a lot
(07:00):
of white collar defense work. And I'm fast forwarding to
now when you were known as the nation's most aggressive,
outspoken prosecutor, one of them of public corruption in Wall
Street Crime. So can you talk about that journey and
what it's like having been on both sides of that
and emerging as as a prosecutor. Yeah. So, um, I
realized at some point that I wanted to be a lawyer.
(07:20):
That was pretty early on. I like to say that
I had the impulse very strongly, fairly early on when
I read Inherit the Wind. It moved me in many ways,
and you know the way it described courtroom scenes. More specifically,
I knew that I wanted to be a prosecutor, and
even more specifically than that, to be an assistant US
attorney in the Southern District of New York. Was when
I was in law school and I took a class
(07:42):
on trial practice. And I wasn't the most diligent attender
of classes. Um I was in law school, which I
sometimes have loathed to say, but the one class I
prepared really hard, weekend and week out that I went
to every class of was with troal practice. And you
do a sample, you know, when we could do an
opening statement that we could do across these emination of
that we could do a director, redirect, etcetera. And boy,
(08:03):
that was heaven for me because the craft of it
was really fascinating. And then as I learned more about
what a use attorney's office was la prosecutor's officers like,
it occurred to me that it was the ideal place
for someone like me to work, because you don't represent
one individual's interest because it helps a particular person and
that's noble. It could be great work, and it is
very important, and it could be protective of people's civil rights.
But I like the idea of being in a place
(08:25):
where you don't have to make arguments you don't believe in,
but you only do that which you think is right,
and if you don't think it's right, then you don't
bring the case. You know, when when I was hiring prosecutors,
you want to have people who have the experience on
the other side. And you know, some people call it
revolving door. I think that's not the right way of
looking at it. You want to have people who have
had the experience, if possible, of representing an individual and
understanding how much power the government has, and understanding that
(08:48):
the things that you do as a prosecutor forget about
indicting someone or having them arrested, but just opening an
investigation or issuing a subpoena. How that is the equivalent
of rolling a hand grenade across the threshold of a
business or a home. You want people to understand how
much power they have. And so I thought that served
me well, having been on the other side in certain
(09:09):
kinds of cases before I came to the U. S.
Turne's Office. So then you become one of the most
prominent U. S. Attorneys just by virtue of the Southern District,
in addition to the work that you did in the
approach that you took. And one of the things that's
been on my mind looking at the Department of Justice,
and I should say, I'm I'm the rare presidential candidate
(09:29):
who's not a lawyer, never went to law school, and
so it's very much on the outside looking in when
I'm trying to understand a long time my friend, I
guess it's never it's never too late. But um, for
the most part, is a mayor. Most of my interactions
with the U. S. Attorney's Office were when we were
teaming up on violence prevention efforts and trying to develop
strategies on that front. But the other way I came
(09:51):
to know federal prosecutors. Actually was by chance through my
military reserve units, so I joined an intelligence unit in
Chicago or outside of Ago, and a lot of the
officers there were either FBI agents or prosecutors. And one
of the things I remember from just socially and professionally
getting to know people who worked in that office is
(10:14):
that they were always, in my experience, almost ridiculously careful
not to be political, even offline. And I'm thinking now
to this moment we're in where we have everything from
the politically motivated removal of U S attorneys even just
the way during the Republican National Convention that we saw
(10:36):
federal property and federal processes pardoning and immigration swearing, and
you know, these things that are supposed to have absolutely
nothing to do with politics being just mixed in it,
something that symbolized ultimately by the President's use of the
White House as a site to campaign from. What do
you think it will take for the non political culture
(10:56):
that's supposed to be so important to the Department of
Justice to recover from this experience, and where do we
go from here? Going back to what your memory is,
that's what it's supposed to be like that if you're
in federal service, particularly the Justice Department, which is different
from every every other agency in the government. It's supposed
to be the least political agency in the government. You're
not supposed to know what their political affiliation is or
(11:17):
base any decision making in hiring on whether they're conservative
or liberal, whether the Democrats or not. In fact, my
time in the Senate, we did an investigation of politicization
of the Justice Department and the Inspector General at a
multi hundred page report talking about how that rule was
violated for a period of time under George W. Bush's
Justice Department. You know, as as the saying goes, justice
must not only be done, it must be seen to
(11:38):
be done. And what that means, in part is it
has to be seen to be done equally. Whether you're
old or young, whether you're white or black, whether you're
a publican or a Democrat. You know, those things don't matter.
What matters of the facts in the lawn. You treat
everyone equally. I used to joke when I was in office.
You know, the way you should think about this is
the really three political parties, the Democrats, Republicans, and federal prosecutors.
(12:00):
There's no Democratic or Republican way of prosecuting a robbery
case or a homicide case or a corruption case. Now
politics enters into the rhetoric in other places about that
because by definition, if you're charging public corruption against elected official,
that elected official will be from, you know, almost always
one party or another. Our record in office was we
prosecute a lot more Democrats than Republicans. But one of
(12:20):
the reasons you have to be assiduously and studiously a
political is so that when you do bring a case
against an elected official or someone who's associated with an
elected official, that the public has confidence that you did
it for the right reasons. All of that is being
undermined and being questioned for a lot of different reasons.
Among them, I think the most culpable person is the
(12:41):
President United States, who basically has said he wants people
who are close to him to be spared, and on
the other hand, if people are your adversary, he kind
of wants them locked up. He wants people to go out.
And you can have the best laws in the world,
you're the best constitution in the world, but if the
people suck, you know, if the people are inept, where
the people are up, you can turn the law to
your purpose and exercise your discretion in a way that
(13:04):
will cause huge miscarriages of justice. We have to concentrate
not just on what the laws are and having better rules,
but on making sure that you have good people who
are exercising their discretion in a good and honest and
fair minded way. That's how you get a lot of
terrible things to happen, not just the laws, because the
people too. I'm a big fan of Hilary Mentell. I
(13:40):
don't know if you've ever read any of her fiction.
She's she's written these novels about Thomas Cromwell, who was
Henry the Ace lawyer in the fifteen forties. I don't
know how being a lawyer in the England in the
fifteen thirties and forties compares to today. But in the
middle of this this novel there there's this line she
has that always sticks with me. She said, when you're
writing laws, you're testing words to find their utmost power.
(14:03):
Like spells, they have to make things happen in the
real world. And like spells, they only work if people
believe in them. So what I want to put to
you with somebody who's who's lived in the law and
also had a front row seat to so many of
the corruptions of law and legal processes that are going on.
Is what's your level of confidence that Americans will believe
(14:24):
in the integrity of our system of law enough for
it to work ten twenty years from now, And what
will it take to make sure that the damage done
in this moment doesn't stick with us for the rest
of our lifetimes. So that's a central question, and I
think it takes culture, which comes from the top. And
if you're talking about overall trust and confidence and institutions,
(14:47):
that has been sort of dwindling over time. So now
imagine you have a justice system, and any justice system
is going to have controversy, especially when people who are
high up, who have political affiliations, engage in misconduct that
has to be an investigated, and in some ways it's
impossible for things not to get somewhat polar on people
care a lot about their candidate for president. Usually, however,
(15:09):
just always a little bit of you know, claiming of
a witch hunt, and Bill Clinton and his time attacked
the prosecutors. Richard Nixon was careful not to do that
so much publicly because he understood there might be some backlash,
but he did it some and he certainly did it
behind closed doors. The difference now is Donald Trump and
his allies have no line that they won't cross and
attacking good people. Part of the harm has been done
(15:31):
because you have someone with the biggest bully pulpit in
the world compelling people to lose their trust and faith
and law enforcement. Do people make mistakes, yes, did some
people do things that they're not supposed to do, yes,
But the wholesale undermining of any decision by anyone in
the Justice Department, I think you lay that at the feet,
mostly of the president, even though it's his Justice department.
The first thing that has to happen is when new
(15:53):
leaders come in, they have to knock it off. They
have to stop doing that. They have to announce on
politically sensitive things. I'm going to let the were people
make their recommendation. It's also for the benefit of the
leaders too, so they don't look political and they don't
look like they're they're not living up to their oath
that they owe the public. So you need that. I
think there are also some other, you know, rule kind
(16:13):
of reforms that you can engage, and you should have
starker policies that are written nowt Again, that's not enough
because people can defy those policies. As we see with
the Hatch Act. There are rules against what the president
did at his convention the hope you can convention. But
if you're the president and you don't have a good
enforcement mechanism, there's nothing anybody can do about it. So
you need people to enforce these rules about separation of
(16:34):
politics from from law enforcement. But but I think mostly
you need a period of time during which good people
at the tops of these places are not doing the
kind of nonsense you've seen Trump do. So you mentioned
presidential accountability, and earlier you you mentioned the example of Nixon,
which which got me thinking about something I've noticed, which is,
you know, after Nixon resigned from office, President Ford decided
(16:57):
to pardon him. And while they're some anger at the
time and it may have cost President Forward his career
and his chances of reelection, that in the judgment of
history from a sort of medium term perspective, it was
viewed as a fairly noble act. He had maybe even
knowingly hurt his own political standing by doing something that
he felt was important. In pardoning Nixon. But I've noticed,
(17:18):
especially as I speak to anyone who's any younger than me,
a level of puzzlement about whether that was the right decision.
So I guess, first of all, I'm just curious what
you think of that that episode in US history? Did
Forward do the right thing? Um? Does the Trump presidency
make create a different perspective on weather Ford did the
right thing? But then the obvious follow up three years
from now, five years from now, Given the number of
(17:41):
guilty pleas and convictions, you know, associated with the people
around President Trump, it's not wild to suppose that he
himself may face criminal liability and responsibility in the future.
Because you you have expertise in in public corruption. A
president calls you in a few years and says, you know,
a pardon case has hit my desk concerning former President Trump.
(18:03):
What is the right thing to do? How do you
approach that? So I'll ask you to look look backwards
historically and then look forward speculatively, and and and the
same principles apply from one case to the other. Yeah,
I mean, I think they're they're different in some ways,
but they also have some similarity. With respective Ford to Nixon,
my sense is consistent with what I think historians think
(18:23):
is that it was a good and selfless act on
the part of Gerald Ford to move the country forward.
I think that some other things weighed on his decision.
Among those things are one, Nixon resigned, he accepted in
some way some responsibility and had some contrition r he
actually left office, and a lot of the misdeeds that
are attributable to Nixon were known. They're probably a whole
(18:47):
bunch of others, but you kind of understood what the
facts were. He kind of pled guilty in a professional sense,
not in the courtroom, and he didn't suffer at prison sentence.
But there was some closure because the man left office
and got got in the helicopter. If you have a
current situation where there is criminality on the part of
the President United States, let's say dal Trump, and there's
(19:10):
lots of other unknown stuff that he has done or
has been doing that remains to be uncovered, and you have,
you know, investigation going on by the New York Attorney
General and the Manhattan District Attorney, one could imagine that
there are lots of other things going on with the
organization and interference and obstruction kinds of issues. And some
things with respect to what Bob Mueller was investigating have still,
you know, maybe not come to light. You both have
(19:31):
an absence of full understanding of the conduct of the president,
and he also hasn't left office. So if you were
defeated at the polls and he would be able to
be subject as a legal matter to prosecution's sort of different.
What is similar is, boy, you know, the next administration,
if there's a new administration, has to think very carefully,
both for moral reasons and also practical reasons about how
(19:53):
to proceed. Morally, they might think, you know, someone has
done bad things, they should be accountable, no ones above
the law, But they also have a country to govern,
and the country is more polarized than it's ever been.
Even if Donald Trump goes away after he's defeated and
he accepts the election results, there are tens of millions
of people who will be supportive of him and will
(20:15):
be absolutely antagonistic to anything that it happens to him,
further investigations, prosecutions being held accountable, and they will because
they had been conditioned in part by him, they will
view those things as political payback, even if that's not true.
And even if the people that you are putting in
charge of that kind of thing in your Justice Department
or in a commissioner or whatever are fair minded. You know,
(20:36):
think of the example of Robert Mueller. It's gonna be
hard to get the business of your administration done it
and be hard to deal with things like income inequality
and criminal justice reform. So I don't know. I'm not
smart enough to know what the right balance is to strike.
What I do know is going to be very, very
difficult to figure it out. But Barack Obama's Justice Department
had to deal with a much smaller or less complicated
(20:58):
version of this, and Nope, nobody's fully satis fun. When
Ari Colder as the Attorney General, had the department take
a look at some of the practices of the of
the CIA with using enhanced interrogation techniques and black sites
and other things, and there are a lot of people
who wanted folks to go to jail. There are other
people who thought we should move on. That's always going
to be a difficult issue. So so I think there's
(21:18):
a parallel. You know, history rhymes, there's a parallel between
the nix and era and this time. I think there
are notable differences. I don't envy the people who are
going to have to decide the best way to make
sure that justice is done and accountability has had but
also not split the country in two and be able
to do all the other important things that we need
to do as a country. It's in some ways frightening
(21:40):
to think about that reality that you mentioned a lot
of his supporters being in that it may just be
different in its in its nature than the reality that
other Americans are in. Yeah. Look, I mean you said
something on a campaign trail that I respected very much,
and you reminded me of it with your question, and
that is I think you and the other candidates got
to ask the question, you know, will you direct to
the Justice Department to invest a gate and prosecute Donald
(22:01):
Trump for X, Y or Z or for anything. And
I was very pleased to hear your answer, which would
have been my answer, which was some version of Look,
people should be held accountable for what they've done, and
the one's above the law, and that includes the president.
But that is a decision for the Justice Department. That's
a decision that should be made independently based on the
facts in the law. And if you have an elected official,
a politician like me or someone else as the president,
(22:23):
who is directing a prosecution investigation of a political rival.
That's what God is in this mess in the first place.
So we should be careful of staying in the future
that we're going to direct people to bring a prosecution,
because that's what Trump does, and it doesn't make it
better or right if you're on the other side, right,
And yeah, the reason I responded that way because I
(22:44):
just feel like nothing good can come of a political
official directing prosecutions of political figures. And what we're seeing
right now is pretty horrific. In terms of a president
directing d o J to be lenient for political reasons.
You could argue there's something even more fearsome about the
prospect of a president directing d o J to be
(23:06):
aggressive for a political reason. That's what Trump is doing.
I mean, he's literally, he's literally saying those things, and
we gotta get away from that. You know, we can't
repeat in the other direction, you know, some of that
kind of rhetoric and conduct on the part of this president.
So another thing, again, not a lawyer, but I do
talk to lawyers on TV and podcasts. And one of
the central things I think that people study and weigh
(23:27):
in the law is the nature of evidence. And there's
a whole set of rules around what you can and
can't use for evidence, but also a lot depends on
just what we believe. This is partly on my mind
just because one of my colleagues at Notre Dame Institute
for Advanced Study was presenting it as seminar introduced me
to a website I've never heard of before called this
(23:48):
Person does Not Exist dot com. If you get a minute,
this is one thing I'll leave you with. The sounds intriguing.
Every time you loaded a photo comes up of a person. Uh,
sometimes you think like it kind of looks like somebody
I know. None of these people exist. It's all generated
by exactly. So this is an expert on deep deep
fixed and that was the context that he was introducing
(24:08):
us to some of the technology out there. And it
is alarming. It feels like our grasp on what is
real is maybe slipping away, and of course also being
kind of energetically and actively undermined, whether it's by domestic
actors for political reasons or by hostile foreign powers for
strategic reasons. So with all of that swirling around, what
(24:29):
has to happen for the law and for the country
to keep up and know that we we have some
level of faith in our ability to sort out what
is fact from what is fiction. So that's a great question,
and it goes to a troubling issue that a lot
of people say is the next disaster for a lot
of reasons, for institutions and for the law, and for
(24:50):
people's reputations. And that's this issue of deep faith and
what you can believe and not believe. Um, we don't
have enough time to focus on it because in the
interim we have a pandemic, and we have a auction,
and we have the economy in a recession and so
many other things going on. But it is going to
be one of the central things people focus on in
the near future. And as a legal matter, it affects
both the possibility of being able to implicate people in
(25:12):
that conduct that they didn't commit because you could have
doctor I mean, you're talking about photograph but there there
is now technology that is soon going to be able
to be gotten by people who don't have a lot
of means. You don't have to be a big you know,
Hollywood studio to show you Pete Buddha judge committing a crime.
But it's also going to be a problem in the
other direction, which people don't think about as much, which
is suppose you did rob the bank in an age
(25:34):
in which there are deep fakes, where people believe that
some of the stuff is made up. How are you
gonna get people to believe, even with authentication from experts
that it does actually depict a person shooting someone robbing
a bank. They'll say, look, that's a deep fake. And
so it's kind of it's kind of metaphor for what's
happening in the country generally. You know, the issue with
Donald Trump, it's not an attack on truth, in other words,
(25:56):
not an attack on a particular fact that he doesn't
want you to believe that fact. You want you to
believe a different fact. That's easy and people can deal
with that, and that's not as harmful to society. What's
harmful is if someone like Trump or someone else gets
you to doubt the nature of truth itself. And the
concept of this goes right to that question what is
the nature of truth? And court rooms and criminal cases
(26:18):
and civil cases too, they all rely on a fundamental principle,
and that fundamental principle is that there is a truth,
and that the truth is knowable and provable, and if
you can't prove a particular truth, then the case goes away.
And you know, there is some hope that expertise will
be developing, so the people, if they have the proper metadata,
that you can stay one step ahead. But you know,
if people are given to believe everything is made up
(26:41):
and it could just as easily be true as not true.
I don't know how much experts you're gonna matter. You
mentioned the laws of knowledge, to expertise or the I
(27:01):
think in many ways a loss of faith and expertise
that have life or death implications, especially with regard to
responding to COVID nineteen. Why do you think that happened?
Did experts blow it in some way? Is this the
result of nefarious efforts to undermine the credibility of experts,
or or are experts to blame? Or is there something
else going on? I think it's all those things that
you mentioned. I think you have, you know, repeatedly, day
(27:23):
after day, somebody who has a particular point of view.
I hate to keep going back to the president, but
he's he's sort of an avatar of all these things,
you know, And in the last few months on the pandemic,
you know, you have lots and lots of doctors who
are saying the science is unclear about something or is
clear in a particular direction. But Donald Trump and others
have their own view of it, and they feel they
can just substitute it. And people want to believe things
that they want to believe, right, whether it's I don't
(27:45):
have to wear a mask and it's not effective, even
the science shows that it is. I think that's part
of the problem. I think part of the problem is,
you know, experts are fallible, and it happens to be
true in connection with the pandemic that now everyone is saying,
with great adamants, wear a mask, wear a mask, wear
a mask, wear a mask. But there was a time
not that long ago when those same experts said, don't
wear a mask, to't or a mask, and people of
(28:06):
ordinary common sense, and I like to think, I am
you kind of wonder So some of it the experts
hurt themselves, and some of it is they're just fallible.
Expertise doesn't mean perfection. But if you weaponize the sort
of imperfection of experts. Then you're going to get more
and more distrust and lack of faith in that expertise.
And you have in Trump the leading proponent of weaponizing.
(28:28):
So an expert can be right nine nine times out
of a hundred, and that expert is wrong one time
out of the hundred. You've got a guy with the
biggest megaphone in the world who's going to talk about
that one error over and over and over and over again,
and people listen. You know, repetition matters, and that expert.
Look at Dr Fauci, you don't seem as much as
you as you did before. Nobody can compete with that megaphone.
(28:51):
And another point I'll make that I think is more interesting.
I don't fully understand the argument, but I'm reading an
upcoming book by Michael Sandel and having him on the
podcast soon, and his book is called The Tyranny of Merit,
and he makes a kind of a different argument. You know,
people have to be careful that there is on the
left a little bit among progressives elites you want you
to put you arrest names you can call them who
(29:12):
have so fetishized expertise and so much made it the
case that well, everyone who's in office and everyone is
making a decision about something has to be super steeped
and has to have a Nobel prize under their belt.
That it'll a little bit, you know, it's off putting
to people who don't understand how nuclear physics works, who
don't understand climate models. And I'm one of those people.
I don't understand those things. You're kind of saying to
(29:34):
a lot of people in the country, you're not smart
enough to engage in this debate. Leave it to the experts.
And that's a disenfranchisement of good faith, well meaning people
who care about their country, and they're being told, you're
too dumb to understand these things, leave it to the experts.
That's an unintended consequence of I think something that is
meant to be done in good faith, which has allows
(29:55):
science to governm but that's not how it's always received
in the ear drums of people who are may to
feel like their opinions don't matter. Do you find any
truth in that? Absolutely. I think that's especially been operative
in my part of the country, where there's a sense
that sometimes this part of the country gets lectured to
whether we're talking about industrial workers in uh more carbon
(30:16):
intensive industries, or people who are maybe a little skeptical
about trade deals. And I remember feeling sometimes being on
the other side of this, on learning just how deep
the suspicion was on little parochial things when I was mayor,
like we would reroute a road and people would say,
this is never gonna work, and I'm like, what do
you mean. We did all these traffic engineering studies because
(30:36):
people know what they're doing. They're traffic engineers, for God's sake. Yeah,
listen to them. And you know, the truth was, sometimes
I was right. Uh, sometimes we were wrong. Like sometimes
when we went back and took another look at it.
You know, people who may not have been experts in
traffic engineering, but they were experts in their own neighborhood
were able to point to something that that was missed.
And if there's a sense of condescension towards people, that
(30:58):
can be incredibly dangerous. And then you couple that with
the fact that you know, most doctors, scientists, um, when
they do get something wrong, they talk about it because
it's part of their process, uh and politicians generally, and
then that's taken advantage right exactly it's used against it
by bad faith people are in the same way, by
the way, this there's also something in the intelligence community
right where intelligence good intelligence assessments always say you know,
(31:21):
we assess with a high level of confidence this. They
never say this is absolutely certain. And we saw in
the case of for example, the Russia bounties, how that
was twisted as a way to say, look like they
didn't even know for sure who you know, who cares
what they said. And if you have someone who's gonna
in a bad faith way take advantage of people who
are acting in good faith, you have a problem. And
you could literally have an expert fifty five thousand times
gets an observation correct, But it's an observation that people
(31:43):
don't like on on one side of an issue or
another one it's climate chang or anything else. And one
time they make a mistake. All you can hear hear
about is that one time. In the same way, you know,
there's a flip side to that too, that the president
engages it. He can do things wrong with respect to
the pandemic, and one thing he can say I did
was right, and he did something with respect to closing
off travel from China right, and he just repeats that
(32:05):
over and over and over and over again, as if
that's the same as mistakes he made. I think about it,
as you know, there's like a hundred things he should
have done, and he did this one thing and you know,
one out of a hundred, generally in f but to them,
they talked about it as if that shows he was
right on COVID all along. It's it's part of the
part of the reason I mentioned the president so much
is because he's to blame for a lot of this,
(32:27):
but also he has disproportionate power. He has the largest
microphone on Earth, and he uses it a lot, and
he is capable of repetition without seeming to grow tired
of it, and the combination of shamelessness the largest platform
on earth, the repetition. You know, once someone like that goes,
if the next person is not like that, I think
(32:47):
a lot of this. O say, not all of it,
because you still have other leaders who can, you know,
spout nonsense and propaganda, but a lot of it fades
because you don't have someone who's so present and dominant
in everyone's life, your democratic republican independent telling you what
to think and weaponizing these discrepancies. Yeah, well a lot
depends on that proving, right, So I hope that's what
(33:09):
will happen. On this podcast, we were thinking a lot
about the decade ahead and how that decade is going
to shape really the rest of the era that we're
living in. So I'm wondering if if you're thinking about
the perspective of somebody who's just graduating from law school
right now and was motivated to study the law because
they believe in the rule of law, but for the
entirety of their law school career, they've seen this president
(33:32):
in this administration doing these things. What would you say
to them? You mentioned at the beginning of our conversation
some immigrants might have in the back of their head
that question, did I make the right choice when I
came to the United States. I'm sure there's a lot
of budding lawyers who are asking themselves the question that
I make the right choice by pursuing the law. What
would you say to them to give them hope about
the path they have chosen in the future of the
(33:53):
rule of law. I would say, welcome to the profession.
I would say, read my book. But if you don't
read the book, pay attention to the notion that I
already alluded to earlier in our conversation, that is, who
the lawyers are on an issue matters. If all lawyers
are equal and everyone's judgment is the same, then then
it shouldn't matter if you decided to become a lawyer
(34:13):
or someone else decides to become a lawyer. We have cases,
some of which I talked about in the book, where
a mischaracter of justice happened. Someone who should not have
been prosecuted for a crime was prosecuted for a crime,
and then later it turns out that they could you know,
there's proof that they were not guilty most of the
time in those cases. And one example I give is
seventeen years a number of people spent time in prison
for a murder they had not committed. The laws hadn't changed,
(34:36):
it's that the excellence and rigor of the people who
are responsible for the case was different. So the first
bit of hope I would give to these hypothetical students
you're talking about is have confidence in yourself that if
you are a person of integrity and good faith and
honesty and good judgment, that you can make a difference.
Even if you're not changing a single law, but you know,
having a law degree is a powerful tool, the ability
(34:58):
to be a member of of a bar and to
represent and help, you know, underdogs and underprivileged folks, or
to write or wrong or to cure an injustice. You know,
there are a lot of opportunities that lawyers have to
do that that ordinary citizens don't. You know, the folks
who were going through this process, you should be very
honored that you have will have a power that many
other people don't have. And to think proudly of of
(35:19):
the model that the law provides for how maybe in
the rest of society we can you know, learn to
understand each other better, persuade people as opposed to bash
them over the head. That's a really powerful I think,
a vindication of the the idea of the law, but
also the idea that it matters who's doing these things.
Almost makes me wish I went to law school. It's
never too late. That was a fascinating conversation. I'm already
(35:49):
tempted to ask for a follow up because I feel
like we have so many more things we could talk about.
One thing I couldn't quite get off my mind as
we were talking was how One consequence of this Trump
presidency is people like pret who was heading up a
crucial district within the Department of Justice with a clear
commitment to tackling corruption, the exact kind of public servant
(36:10):
that a president depends on. People like him were pushed
out of government, often as a reaction or a response
to their decision to do the job with integrity. On
the other hand, that has not stopped him from being
a very influential voice in the law and in America,
and I expect will continue to see a lot of
impact from him in the decade ahead. People like Preeper
(36:31):
are are out there standing for justice, fighting for change,
and that is good news for the era to come.
For more podcasts from I Heart Radio, visit the i
Heart Radio app, Apple Podcasts, or wherever you listen to
your favorite shows.
Hi, I'm Pete Bag and welcome to the Deciding Decade.
One reason I wanted to launch this podcast is because
I believe we are at the outset of the decade
that's going to shape the rest of our lives in America.
Now that decade has begun with a challenging year, to
(00:27):
put it mildly, and yet I also feel from the
position of that THEIES could wind up being the threshold
of a new and I hope much better, fairer, and
more decent period in American history. For that to happen,
they're going to have to be a lot of decisions,
not just policy decisions, but in our ordinary lives across
(00:50):
our culture about what kind of country we're going to be.
And those decisions will happen in every field. One of
the most important fields is the law. Like so many Americans,
I've been thinking a lot about justice and accountability, and
I'm thinking about what the future of justice can look
like in this country, in this moment and in the
(01:11):
post Trump era. How do we make sure the Department
of Justice and our whole judicial system actually help everyday people,
not Wall Street, and not for example, a corrupt president.
In my mind, Preet Barrara is the perfect person to
help us face these questions because of the work he's
done in the Southern District of New York. He formed
the Terrorism and International Narcotics Unit and led the charge
(01:33):
in several high profile convictions, including Osama bin Laden's son
in law, international arms traffickers, heads of major financial organizations,
members of hacking groups, and more. You've likely seen his
name in the news because of all of these incredible accomplishments,
or because of his highly acclaimed book Doing Justice, or
his popular podcast Stay Tuned with pret or perhaps because
(01:57):
he was fired by President Trump and not in an
apprentice sort of way three months into that presidency. Another
topic that I'm looking forward to delving into. Welcome free,
Thanks for making time and great to have you. Thank you,
mayor Pete. May I still call you, mayor Pete. I'll
still answer to it. Okay, it's it's it's not. Heored
to be here. Thank thanks for having me. So so
many things I'm eager to talk with you about. But
(02:19):
first I wanted to rewind into your story a little
bit because the immigrant experience, I think is is front
and center and how we're thinking about what it means
to be American and and the relationship that people have
to this country. You were born in India and two
years later, I believe you and your parents immigrated to
the U S settled in New Jersey, and uh, I'm
just curious what motivated them to come to the US,
(02:41):
what was their experience like, and what was your experience
like growing up here in the US. That's an issue
that obviously is an important one for policy reasons, political reasons,
legal reasons, and I've dealt with those issues both as
yours attorney and when I was working in the Senate
for for Chuck Schumer. But obviously it's a very personal issue.
It might dad left the place of his birth and
(03:02):
took me from the place of my birth for the
same reason that millions and millions of people have done
so over generations. And that's because of the promise of
a better life and promise of opportunity which he thought
he could get only in the United States. And that
is why it's so disconcerting and distressing to see, you know,
certain policies being enacted, certain kinds of rhetoric being used
where people like my mom and my dad, you know,
(03:23):
wonder a little bit if the country is as open
and welcoming as it was back in the early nineteen
seventies when they came to America. I wrote a piece
a couple of weeks ago about this little voice that
I imagine is in every immigrants head that says, after
having done the very, very difficult thing, people would not
appreciate it. You don't just sort of pack your bags
and come to America and like it's easy. It's really hard.
(03:44):
My dad is one of thirteen, my mom was one
of seven, and other parents were still alive. And to
leave every friend, and leave every tradition, and leave your
food and your culture and your language behind. Let's go
to a place that has a lot of promise. It's
still not an easy thing to do. And I imagine
this voice and every immigrants head asked to the question,
was it the right thing to do? Was it a
good decision? And you hope and believe if you become
(04:06):
successful in my parents children, you know, my my brother
and I both became successful here, and you think, yes,
you know it was worth it, it was right. But
there are moments when you see this rhetoric and you
see certain things happening, and you see the travel bands
being enacted, and you wonder, you know, am I really
being accepted in America fully or only only superficially, and
then I just grandfathered in or other people like me
still permitted to come and experience opportunity and achieve great
(04:29):
things in this country. And you wonder about that sometimes.
You know, I've had a blessed life. My father and
mother both have they're both still with us, and my
brother too. But it's an astonishing thing when not long ago,
Kamala Harris who speak to be the VP. You know,
she's black, also Indian, and it's that moment where I
imagine people if my mom was the most excited person
I talked to that day, she because she usually she's
(04:51):
calling up and asking about my kids and about how
other things are going. All she wanted to talk about
was was Kamala Harris because she was so excited. And
I thought to myself, it's a little bit of a
clarion loud answer to the question was it worth it? Well, yeah,
if someone whose parents are like my mom and dad,
if she could be the Vice President States of America,
well then yeah, this was the right thing to do.
(05:12):
This was the right place to come so that's a
long winded way of saying, yeah, I think about it
a lot. You know, there are not a lot of
Indian people in Central Jersey at the time. There were
no real Indian restaurants, and we had a normal life
other than you know, people had a lot of questions
when I was a child in elementary school and people
would say where you from and I would, you know,
explain that I was born in India. I was Indian.
(05:34):
People would ask me if I lived in a TP
I think. I think that the kids my children go
to school with now don't make that mistake. But we
had We had a normal American upbringing. You know, I
played Little League baseball for one year and then I
was terrible. My brother played for a long time, and
you know, we grew up with my mom cooking Indian
food at home and listen to Indian music at home.
(05:55):
And my mom's a great cook. She learned how to
make you know, Italian food in American food with and inflections,
doing fusion before it was cool exactly. She would make burgers,
but they would have a little bit of spice. And
it took a lot of, you know, some more years
for the general American palate to become familiar with Indian food,
and how they need food is everywhere. Look how far
we've come, I was gonna say. I mean, one one
(06:16):
interesting thing I think through our lifetimes in America has
has been seeing the country grow more and more cosmopolitan.
I know my family experience is a little bit different,
but my father immigrated from this tiny island country of Malta,
whose whose culture is roughly like that of Italy or
Sicily in a lot of ways. And you know, something
as simple as you'd make espresso after dinner that was
(06:38):
like a weird immigrant thing when I was a kid.
That made us kind of weird and different. And you know,
by the time I'm finishing college, it's cool. So so
you have this upbringing, then it leads you to some
of the most exclusive, prestigious, and excellent educational experiences that
an American can have, Harvard Colombia. So I want to
get to how your legal career begins, because if I
understand it right, you start your career doing a lot
(07:00):
of white collar defense work. And I'm fast forwarding to
now when you were known as the nation's most aggressive,
outspoken prosecutor, one of them of public corruption in Wall
Street Crime. So can you talk about that journey and
what it's like having been on both sides of that
and emerging as as a prosecutor. Yeah. So, um, I
realized at some point that I wanted to be a lawyer.
(07:20):
That was pretty early on. I like to say that
I had the impulse very strongly, fairly early on when
I read Inherit the Wind. It moved me in many ways,
and you know the way it described courtroom scenes. More specifically,
I knew that I wanted to be a prosecutor, and
even more specifically than that, to be an assistant US
attorney in the Southern District of New York. Was when
I was in law school and I took a class
(07:42):
on trial practice. And I wasn't the most diligent attender
of classes. Um I was in law school, which I
sometimes have loathed to say, but the one class I
prepared really hard, weekend and week out that I went
to every class of was with troal practice. And you
do a sample, you know, when we could do an
opening statement that we could do across these emination of
that we could do a director, redirect, etcetera. And boy,
(08:03):
that was heaven for me because the craft of it
was really fascinating. And then as I learned more about
what a use attorney's office was la prosecutor's officers like,
it occurred to me that it was the ideal place
for someone like me to work, because you don't represent
one individual's interest because it helps a particular person and
that's noble. It could be great work, and it is
very important, and it could be protective of people's civil rights.
But I like the idea of being in a place
(08:25):
where you don't have to make arguments you don't believe in,
but you only do that which you think is right,
and if you don't think it's right, then you don't
bring the case. You know, when when I was hiring prosecutors,
you want to have people who have the experience on
the other side. And you know, some people call it
revolving door. I think that's not the right way of
looking at it. You want to have people who have
had the experience, if possible, of representing an individual and
understanding how much power the government has, and understanding that
(08:48):
the things that you do as a prosecutor forget about
indicting someone or having them arrested, but just opening an
investigation or issuing a subpoena. How that is the equivalent
of rolling a hand grenade across the threshold of a
business or a home. You want people to understand how
much power they have. And so I thought that served
me well, having been on the other side in certain
(09:09):
kinds of cases before I came to the U. S.
Turne's Office. So then you become one of the most
prominent U. S. Attorneys just by virtue of the Southern District,
in addition to the work that you did in the
approach that you took. And one of the things that's
been on my mind looking at the Department of Justice,
and I should say, I'm I'm the rare presidential candidate
(09:29):
who's not a lawyer, never went to law school, and
so it's very much on the outside looking in when
I'm trying to understand a long time my friend, I
guess it's never it's never too late. But um, for
the most part, is a mayor. Most of my interactions
with the U. S. Attorney's Office were when we were
teaming up on violence prevention efforts and trying to develop
strategies on that front. But the other way I came
(09:51):
to know federal prosecutors. Actually was by chance through my
military reserve units, so I joined an intelligence unit in
Chicago or outside of Ago, and a lot of the
officers there were either FBI agents or prosecutors. And one
of the things I remember from just socially and professionally
getting to know people who worked in that office is
(10:14):
that they were always, in my experience, almost ridiculously careful
not to be political, even offline. And I'm thinking now
to this moment we're in where we have everything from
the politically motivated removal of U S attorneys even just
the way during the Republican National Convention that we saw
(10:36):
federal property and federal processes pardoning and immigration swearing, and
you know, these things that are supposed to have absolutely
nothing to do with politics being just mixed in it,
something that symbolized ultimately by the President's use of the
White House as a site to campaign from. What do
you think it will take for the non political culture
(10:56):
that's supposed to be so important to the Department of
Justice to recover from this experience, and where do we
go from here? Going back to what your memory is,
that's what it's supposed to be like that if you're
in federal service, particularly the Justice Department, which is different
from every every other agency in the government. It's supposed
to be the least political agency in the government. You're
not supposed to know what their political affiliation is or
(11:17):
base any decision making in hiring on whether they're conservative
or liberal, whether the Democrats or not. In fact, my
time in the Senate, we did an investigation of politicization
of the Justice Department and the Inspector General at a
multi hundred page report talking about how that rule was
violated for a period of time under George W. Bush's
Justice Department. You know, as as the saying goes, justice
must not only be done, it must be seen to
(11:38):
be done. And what that means, in part is it
has to be seen to be done equally. Whether you're
old or young, whether you're white or black, whether you're
a publican or a Democrat. You know, those things don't matter.
What matters of the facts in the lawn. You treat
everyone equally. I used to joke when I was in office.
You know, the way you should think about this is
the really three political parties, the Democrats, Republicans, and federal prosecutors.
(12:00):
There's no Democratic or Republican way of prosecuting a robbery
case or a homicide case or a corruption case. Now
politics enters into the rhetoric in other places about that
because by definition, if you're charging public corruption against elected official,
that elected official will be from, you know, almost always
one party or another. Our record in office was we
prosecute a lot more Democrats than Republicans. But one of
(12:20):
the reasons you have to be assiduously and studiously a
political is so that when you do bring a case
against an elected official or someone who's associated with an
elected official, that the public has confidence that you did
it for the right reasons. All of that is being
undermined and being questioned for a lot of different reasons.
Among them, I think the most culpable person is the
(12:41):
President United States, who basically has said he wants people
who are close to him to be spared, and on
the other hand, if people are your adversary, he kind
of wants them locked up. He wants people to go out.
And you can have the best laws in the world,
you're the best constitution in the world, but if the
people suck, you know, if the people are inept, where
the people are up, you can turn the law to
your purpose and exercise your discretion in a way that
(13:04):
will cause huge miscarriages of justice. We have to concentrate
not just on what the laws are and having better rules,
but on making sure that you have good people who
are exercising their discretion in a good and honest and
fair minded way. That's how you get a lot of
terrible things to happen, not just the laws, because the
people too. I'm a big fan of Hilary Mentell. I
(13:40):
don't know if you've ever read any of her fiction.
She's she's written these novels about Thomas Cromwell, who was
Henry the Ace lawyer in the fifteen forties. I don't
know how being a lawyer in the England in the
fifteen thirties and forties compares to today. But in the
middle of this this novel there there's this line she
has that always sticks with me. She said, when you're
writing laws, you're testing words to find their utmost power.
(14:03):
Like spells, they have to make things happen in the
real world. And like spells, they only work if people
believe in them. So what I want to put to
you with somebody who's who's lived in the law and
also had a front row seat to so many of
the corruptions of law and legal processes that are going on.
Is what's your level of confidence that Americans will believe
(14:24):
in the integrity of our system of law enough for
it to work ten twenty years from now, And what
will it take to make sure that the damage done
in this moment doesn't stick with us for the rest
of our lifetimes. So that's a central question, and I
think it takes culture, which comes from the top. And
if you're talking about overall trust and confidence and institutions,
(14:47):
that has been sort of dwindling over time. So now
imagine you have a justice system, and any justice system
is going to have controversy, especially when people who are
high up, who have political affiliations, engage in misconduct that
has to be an investigated, and in some ways it's
impossible for things not to get somewhat polar on people
care a lot about their candidate for president. Usually, however,
(15:09):
just always a little bit of you know, claiming of
a witch hunt, and Bill Clinton and his time attacked
the prosecutors. Richard Nixon was careful not to do that
so much publicly because he understood there might be some backlash,
but he did it some and he certainly did it
behind closed doors. The difference now is Donald Trump and
his allies have no line that they won't cross and
attacking good people. Part of the harm has been done
(15:31):
because you have someone with the biggest bully pulpit in
the world compelling people to lose their trust and faith
and law enforcement. Do people make mistakes, yes, did some
people do things that they're not supposed to do, yes,
But the wholesale undermining of any decision by anyone in
the Justice Department, I think you lay that at the feet,
mostly of the president, even though it's his Justice department.
The first thing that has to happen is when new
(15:53):
leaders come in, they have to knock it off. They
have to stop doing that. They have to announce on
politically sensitive things. I'm going to let the were people
make their recommendation. It's also for the benefit of the
leaders too, so they don't look political and they don't
look like they're they're not living up to their oath
that they owe the public. So you need that. I
think there are also some other, you know, rule kind
(16:13):
of reforms that you can engage, and you should have
starker policies that are written nowt Again, that's not enough
because people can defy those policies. As we see with
the Hatch Act. There are rules against what the president
did at his convention the hope you can convention. But
if you're the president and you don't have a good
enforcement mechanism, there's nothing anybody can do about it. So
you need people to enforce these rules about separation of
(16:34):
politics from from law enforcement. But but I think mostly
you need a period of time during which good people
at the tops of these places are not doing the
kind of nonsense you've seen Trump do. So you mentioned
presidential accountability, and earlier you you mentioned the example of Nixon,
which which got me thinking about something I've noticed, which is,
you know, after Nixon resigned from office, President Ford decided
(16:57):
to pardon him. And while they're some anger at the
time and it may have cost President Forward his career
and his chances of reelection, that in the judgment of
history from a sort of medium term perspective, it was
viewed as a fairly noble act. He had maybe even
knowingly hurt his own political standing by doing something that
he felt was important. In pardoning Nixon. But I've noticed,
(17:18):
especially as I speak to anyone who's any younger than me,
a level of puzzlement about whether that was the right decision.
So I guess, first of all, I'm just curious what
you think of that that episode in US history? Did
Forward do the right thing? Um? Does the Trump presidency
make create a different perspective on weather Ford did the
right thing? But then the obvious follow up three years
from now, five years from now, Given the number of
(17:41):
guilty pleas and convictions, you know, associated with the people
around President Trump, it's not wild to suppose that he
himself may face criminal liability and responsibility in the future.
Because you you have expertise in in public corruption. A
president calls you in a few years and says, you know,
a pardon case has hit my desk concerning former President Trump.
(18:03):
What is the right thing to do? How do you
approach that? So I'll ask you to look look backwards
historically and then look forward speculatively, and and and the
same principles apply from one case to the other. Yeah,
I mean, I think they're they're different in some ways,
but they also have some similarity. With respective Ford to Nixon,
my sense is consistent with what I think historians think
(18:23):
is that it was a good and selfless act on
the part of Gerald Ford to move the country forward.
I think that some other things weighed on his decision.
Among those things are one, Nixon resigned, he accepted in
some way some responsibility and had some contrition r he
actually left office, and a lot of the misdeeds that
are attributable to Nixon were known. They're probably a whole
(18:47):
bunch of others, but you kind of understood what the
facts were. He kind of pled guilty in a professional sense,
not in the courtroom, and he didn't suffer at prison sentence.
But there was some closure because the man left office
and got got in the helicopter. If you have a
current situation where there is criminality on the part of
the President United States, let's say dal Trump, and there's
(19:10):
lots of other unknown stuff that he has done or
has been doing that remains to be uncovered, and you have,
you know, investigation going on by the New York Attorney
General and the Manhattan District Attorney, one could imagine that
there are lots of other things going on with the
organization and interference and obstruction kinds of issues. And some
things with respect to what Bob Mueller was investigating have still,
you know, maybe not come to light. You both have
(19:31):
an absence of full understanding of the conduct of the president,
and he also hasn't left office. So if you were
defeated at the polls and he would be able to
be subject as a legal matter to prosecution's sort of different.
What is similar is, boy, you know, the next administration,
if there's a new administration, has to think very carefully,
both for moral reasons and also practical reasons about how
(19:53):
to proceed. Morally, they might think, you know, someone has
done bad things, they should be accountable, no ones above
the law, But they also have a country to govern,
and the country is more polarized than it's ever been.
Even if Donald Trump goes away after he's defeated and
he accepts the election results, there are tens of millions
of people who will be supportive of him and will
(20:15):
be absolutely antagonistic to anything that it happens to him,
further investigations, prosecutions being held accountable, and they will because
they had been conditioned in part by him, they will
view those things as political payback, even if that's not true.
And even if the people that you are putting in
charge of that kind of thing in your Justice Department
or in a commissioner or whatever are fair minded. You know,
(20:36):
think of the example of Robert Mueller. It's gonna be
hard to get the business of your administration done it
and be hard to deal with things like income inequality
and criminal justice reform. So I don't know. I'm not
smart enough to know what the right balance is to strike.
What I do know is going to be very, very
difficult to figure it out. But Barack Obama's Justice Department
had to deal with a much smaller or less complicated
(20:58):
version of this, and Nope, nobody's fully satis fun. When
Ari Colder as the Attorney General, had the department take
a look at some of the practices of the of
the CIA with using enhanced interrogation techniques and black sites
and other things, and there are a lot of people
who wanted folks to go to jail. There are other
people who thought we should move on. That's always going
to be a difficult issue. So so I think there's
(21:18):
a parallel. You know, history rhymes, there's a parallel between
the nix and era and this time. I think there
are notable differences. I don't envy the people who are
going to have to decide the best way to make
sure that justice is done and accountability has had but
also not split the country in two and be able
to do all the other important things that we need
to do as a country. It's in some ways frightening
(21:40):
to think about that reality that you mentioned a lot
of his supporters being in that it may just be
different in its in its nature than the reality that
other Americans are in. Yeah. Look, I mean you said
something on a campaign trail that I respected very much,
and you reminded me of it with your question, and
that is I think you and the other candidates got
to ask the question, you know, will you direct to
the Justice Department to invest a gate and prosecute Donald
(22:01):
Trump for X, Y or Z or for anything. And
I was very pleased to hear your answer, which would
have been my answer, which was some version of Look,
people should be held accountable for what they've done, and
the one's above the law, and that includes the president.
But that is a decision for the Justice Department. That's
a decision that should be made independently based on the
facts in the law. And if you have an elected official,
a politician like me or someone else as the president,
(22:23):
who is directing a prosecution investigation of a political rival.
That's what God is in this mess in the first place.
So we should be careful of staying in the future
that we're going to direct people to bring a prosecution,
because that's what Trump does, and it doesn't make it
better or right if you're on the other side, right,
And yeah, the reason I responded that way because I
(22:44):
just feel like nothing good can come of a political
official directing prosecutions of political figures. And what we're seeing
right now is pretty horrific. In terms of a president
directing d o J to be lenient for political reasons.
You could argue there's something even more fearsome about the
prospect of a president directing d o J to be
(23:06):
aggressive for a political reason. That's what Trump is doing.
I mean, he's literally, he's literally saying those things, and
we gotta get away from that. You know, we can't
repeat in the other direction, you know, some of that
kind of rhetoric and conduct on the part of this president.
So another thing, again, not a lawyer, but I do
talk to lawyers on TV and podcasts. And one of
the central things I think that people study and weigh
(23:27):
in the law is the nature of evidence. And there's
a whole set of rules around what you can and
can't use for evidence, but also a lot depends on
just what we believe. This is partly on my mind
just because one of my colleagues at Notre Dame Institute
for Advanced Study was presenting it as seminar introduced me
to a website I've never heard of before called this
(23:48):
Person does Not Exist dot com. If you get a minute,
this is one thing I'll leave you with. The sounds intriguing.
Every time you loaded a photo comes up of a person. Uh,
sometimes you think like it kind of looks like somebody
I know. None of these people exist. It's all generated
by exactly. So this is an expert on deep deep
fixed and that was the context that he was introducing
(24:08):
us to some of the technology out there. And it
is alarming. It feels like our grasp on what is
real is maybe slipping away, and of course also being
kind of energetically and actively undermined, whether it's by domestic
actors for political reasons or by hostile foreign powers for
strategic reasons. So with all of that swirling around, what
(24:29):
has to happen for the law and for the country
to keep up and know that we we have some
level of faith in our ability to sort out what
is fact from what is fiction. So that's a great question,
and it goes to a troubling issue that a lot
of people say is the next disaster for a lot
of reasons, for institutions and for the law, and for
(24:50):
people's reputations. And that's this issue of deep faith and
what you can believe and not believe. Um, we don't
have enough time to focus on it because in the
interim we have a pandemic, and we have a auction,
and we have the economy in a recession and so
many other things going on. But it is going to
be one of the central things people focus on in
the near future. And as a legal matter, it affects
both the possibility of being able to implicate people in
(25:12):
that conduct that they didn't commit because you could have
doctor I mean, you're talking about photograph but there there
is now technology that is soon going to be able
to be gotten by people who don't have a lot
of means. You don't have to be a big you know,
Hollywood studio to show you Pete Buddha judge committing a crime.
But it's also going to be a problem in the
other direction, which people don't think about as much, which
is suppose you did rob the bank in an age
(25:34):
in which there are deep fakes, where people believe that
some of the stuff is made up. How are you
gonna get people to believe, even with authentication from experts
that it does actually depict a person shooting someone robbing
a bank. They'll say, look, that's a deep fake. And
so it's kind of it's kind of metaphor for what's
happening in the country generally. You know, the issue with
Donald Trump, it's not an attack on truth, in other words,
(25:56):
not an attack on a particular fact that he doesn't
want you to believe that fact. You want you to
believe a different fact. That's easy and people can deal
with that, and that's not as harmful to society. What's
harmful is if someone like Trump or someone else gets
you to doubt the nature of truth itself. And the
concept of this goes right to that question what is
the nature of truth? And court rooms and criminal cases
(26:18):
and civil cases too, they all rely on a fundamental principle,
and that fundamental principle is that there is a truth,
and that the truth is knowable and provable, and if
you can't prove a particular truth, then the case goes away.
And you know, there is some hope that expertise will
be developing, so the people, if they have the proper metadata,
that you can stay one step ahead. But you know,
if people are given to believe everything is made up
(26:41):
and it could just as easily be true as not true.
I don't know how much experts you're gonna matter. You
mentioned the laws of knowledge, to expertise or the I
(27:01):
think in many ways a loss of faith and expertise
that have life or death implications, especially with regard to
responding to COVID nineteen. Why do you think that happened?
Did experts blow it in some way? Is this the
result of nefarious efforts to undermine the credibility of experts,
or or are experts to blame? Or is there something
else going on? I think it's all those things that
you mentioned. I think you have, you know, repeatedly, day
(27:23):
after day, somebody who has a particular point of view.
I hate to keep going back to the president, but
he's he's sort of an avatar of all these things,
you know, And in the last few months on the pandemic,
you know, you have lots and lots of doctors who
are saying the science is unclear about something or is
clear in a particular direction. But Donald Trump and others
have their own view of it, and they feel they
can just substitute it. And people want to believe things
that they want to believe, right, whether it's I don't
(27:45):
have to wear a mask and it's not effective, even
the science shows that it is. I think that's part
of the problem. I think part of the problem is,
you know, experts are fallible, and it happens to be
true in connection with the pandemic that now everyone is saying,
with great adamants, wear a mask, wear a mask, wear
a mask, wear a mask. But there was a time
not that long ago when those same experts said, don't
wear a mask, to't or a mask, and people of
(28:06):
ordinary common sense, and I like to think, I am
you kind of wonder So some of it the experts
hurt themselves, and some of it is they're just fallible.
Expertise doesn't mean perfection. But if you weaponize the sort
of imperfection of experts. Then you're going to get more
and more distrust and lack of faith in that expertise.
And you have in Trump the leading proponent of weaponizing.
(28:28):
So an expert can be right nine nine times out
of a hundred, and that expert is wrong one time
out of the hundred. You've got a guy with the
biggest megaphone in the world who's going to talk about
that one error over and over and over and over again,
and people listen. You know, repetition matters, and that expert.
Look at Dr Fauci, you don't seem as much as
you as you did before. Nobody can compete with that megaphone.
(28:51):
And another point I'll make that I think is more interesting.
I don't fully understand the argument, but I'm reading an
upcoming book by Michael Sandel and having him on the
podcast soon, and his book is called The Tyranny of Merit,
and he makes a kind of a different argument. You know,
people have to be careful that there is on the
left a little bit among progressives elites you want you
to put you arrest names you can call them who
(29:12):
have so fetishized expertise and so much made it the
case that well, everyone who's in office and everyone is
making a decision about something has to be super steeped
and has to have a Nobel prize under their belt.
That it'll a little bit, you know, it's off putting
to people who don't understand how nuclear physics works, who
don't understand climate models. And I'm one of those people.
I don't understand those things. You're kind of saying to
(29:34):
a lot of people in the country, you're not smart
enough to engage in this debate. Leave it to the experts.
And that's a disenfranchisement of good faith, well meaning people
who care about their country, and they're being told, you're
too dumb to understand these things, leave it to the experts.
That's an unintended consequence of I think something that is
meant to be done in good faith, which has allows
(29:55):
science to governm but that's not how it's always received
in the ear drums of people who are may to
feel like their opinions don't matter. Do you find any
truth in that? Absolutely. I think that's especially been operative
in my part of the country, where there's a sense
that sometimes this part of the country gets lectured to
whether we're talking about industrial workers in uh more carbon
(30:16):
intensive industries, or people who are maybe a little skeptical
about trade deals. And I remember feeling sometimes being on
the other side of this, on learning just how deep
the suspicion was on little parochial things when I was mayor,
like we would reroute a road and people would say,
this is never gonna work, and I'm like, what do
you mean. We did all these traffic engineering studies because
(30:36):
people know what they're doing. They're traffic engineers, for God's sake. Yeah,
listen to them. And you know, the truth was, sometimes
I was right. Uh, sometimes we were wrong. Like sometimes
when we went back and took another look at it.
You know, people who may not have been experts in
traffic engineering, but they were experts in their own neighborhood
were able to point to something that that was missed.
And if there's a sense of condescension towards people, that
(30:58):
can be incredibly dangerous. And then you couple that with
the fact that you know, most doctors, scientists, um, when
they do get something wrong, they talk about it because
it's part of their process, uh and politicians generally, and
then that's taken advantage right exactly it's used against it
by bad faith people are in the same way, by
the way, this there's also something in the intelligence community
right where intelligence good intelligence assessments always say you know,
(31:21):
we assess with a high level of confidence this. They
never say this is absolutely certain. And we saw in
the case of for example, the Russia bounties, how that
was twisted as a way to say, look like they
didn't even know for sure who you know, who cares
what they said. And if you have someone who's gonna
in a bad faith way take advantage of people who
are acting in good faith, you have a problem. And
you could literally have an expert fifty five thousand times
gets an observation correct, But it's an observation that people
(31:43):
don't like on on one side of an issue or
another one it's climate chang or anything else. And one
time they make a mistake. All you can hear hear
about is that one time. In the same way, you know,
there's a flip side to that too, that the president
engages it. He can do things wrong with respect to
the pandemic, and one thing he can say I did
was right, and he did something with respect to closing
off travel from China right, and he just repeats that
(32:05):
over and over and over and over again, as if
that's the same as mistakes he made. I think about it,
as you know, there's like a hundred things he should
have done, and he did this one thing and you know,
one out of a hundred, generally in f but to them,
they talked about it as if that shows he was
right on COVID all along. It's it's part of the
part of the reason I mentioned the president so much
is because he's to blame for a lot of this,
(32:27):
but also he has disproportionate power. He has the largest
microphone on Earth, and he uses it a lot, and
he is capable of repetition without seeming to grow tired
of it, and the combination of shamelessness the largest platform
on earth, the repetition. You know, once someone like that goes,
if the next person is not like that, I think
(32:47):
a lot of this. O say, not all of it,
because you still have other leaders who can, you know,
spout nonsense and propaganda, but a lot of it fades
because you don't have someone who's so present and dominant
in everyone's life, your democratic republican independent telling you what
to think and weaponizing these discrepancies. Yeah, well a lot
depends on that proving, right, So I hope that's what
(33:09):
will happen. On this podcast, we were thinking a lot
about the decade ahead and how that decade is going
to shape really the rest of the era that we're
living in. So I'm wondering if if you're thinking about
the perspective of somebody who's just graduating from law school
right now and was motivated to study the law because
they believe in the rule of law, but for the
entirety of their law school career, they've seen this president
(33:32):
in this administration doing these things. What would you say
to them? You mentioned at the beginning of our conversation
some immigrants might have in the back of their head
that question, did I make the right choice when I
came to the United States. I'm sure there's a lot
of budding lawyers who are asking themselves the question that
I make the right choice by pursuing the law. What
would you say to them to give them hope about
the path they have chosen in the future of the
(33:53):
rule of law. I would say, welcome to the profession.
I would say, read my book. But if you don't
read the book, pay attention to the notion that I
already alluded to earlier in our conversation, that is, who
the lawyers are on an issue matters. If all lawyers
are equal and everyone's judgment is the same, then then
it shouldn't matter if you decided to become a lawyer
(34:13):
or someone else decides to become a lawyer. We have cases,
some of which I talked about in the book, where
a mischaracter of justice happened. Someone who should not have
been prosecuted for a crime was prosecuted for a crime,
and then later it turns out that they could you know,
there's proof that they were not guilty most of the
time in those cases. And one example I give is
seventeen years a number of people spent time in prison
for a murder they had not committed. The laws hadn't changed,
(34:36):
it's that the excellence and rigor of the people who
are responsible for the case was different. So the first
bit of hope I would give to these hypothetical students
you're talking about is have confidence in yourself that if
you are a person of integrity and good faith and
honesty and good judgment, that you can make a difference.
Even if you're not changing a single law, but you know,
having a law degree is a powerful tool, the ability
(34:58):
to be a member of of a bar and to
represent and help, you know, underdogs and underprivileged folks, or
to write or wrong or to cure an injustice. You know,
there are a lot of opportunities that lawyers have to
do that that ordinary citizens don't. You know, the folks
who were going through this process, you should be very
honored that you have will have a power that many
other people don't have. And to think proudly of of
(35:19):
the model that the law provides for how maybe in
the rest of society we can you know, learn to
understand each other better, persuade people as opposed to bash
them over the head. That's a really powerful I think,
a vindication of the the idea of the law, but
also the idea that it matters who's doing these things.
Almost makes me wish I went to law school. It's
never too late. That was a fascinating conversation. I'm already
(35:49):
tempted to ask for a follow up because I feel
like we have so many more things we could talk about.
One thing I couldn't quite get off my mind as
we were talking was how One consequence of this Trump
presidency is people like pret who was heading up a
crucial district within the Department of Justice with a clear
commitment to tackling corruption, the exact kind of public servant
(36:10):
that a president depends on. People like him were pushed
out of government, often as a reaction or a response
to their decision to do the job with integrity. On
the other hand, that has not stopped him from being
a very influential voice in the law and in America,
and I expect will continue to see a lot of
impact from him in the decade ahead. People like Preeper
(36:31):
are are out there standing for justice, fighting for change,
and that is good news for the era to come.
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