Preet Bharara on Crime, Punishment, and the Rule of Law

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Transcript

This podcast was recorded on May 1, 2019.

Intro

PREET BHARARA: So he called me a couple of times when he was the president elect, which I thought was odd and peculiar because he's hopefully busy, learning, going to president school.

MICHAEL WALDMAN:  In early 2017, then-U.S. Attorney for the Southern District of New York Preet Bharara got an unexpected call from Donald Trump. And then another.

PREET: It’s March 9th, it's a Thursday, and I get a message from the White House Secretary of the President saying, "The president would like you to return the call." And then I paused.

PREET: And I thought, “No good can come of it.” And so I didn't return the call. And 22 hours later, I was asked for my resignation.

PREET: Obama never called me and I served under him for over seven years.

MICHAEL WALDMAN:  Now, after his very public career shift, Preet Bharara teaches at NYU School of Law, hosts the podcast Stay Tuned With Preet, and is the author of Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.

This is Brennan Center LIVE, a project of the Brennan Center for Justice at NYU Law. I’m Michael Waldman.

In May 2019, Preet Bharara sat down with Margaret Hoover. She’s the host of the PBS show Firing Line. They discussed the role of justice in the today’s political landscape, and he had a chance to reflect on his years as a prosecutor.

Dissolve to conversation

Margaret Hoover: Thanks for writing a book so we get to talk to you.

Preet Bharara: You're welcome.

Margaret Hoover: It's Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law. I mean, maybe you had been thinking about writing a book for years, but truthfully, you wrote this book because you had a little bit of time on your hands ...

Preet Bharara: A little. I had a little bit.

Margaret Hoover: .. that you didn't expect to have—

Preet Bharara: I didn't.

Margaret Hoover: ... because President Trump, after being elected, phoned you and said he was going to keep you on. And then he—

Preet Bharara: He had me over to his place. I mean his office.

Margaret Hoover: Right. You mean to Trump Tower? You mean to Trump Tower?

Preet Bharara: Yes. It's kind of his ... the 26th floor of Trump Tower. It was very gold.

Margaret Hoover: It's 100 percent his place.

Preet Bharara: A lot of gold. Yeah. It's like his pad, I think, right?

Margaret Hoover: It's his pad. And so he had you over, so you went when he was president-elect?

Preet Bharara: I did.

Margaret Hoover: And then he becomes the president and he calls you on the phone and this is in March or so and you don't call him back.

Preet Bharara: Correct.

Margaret Hoover: And you don't call him back because?

Preet Bharara: So he called me a couple of times when he was the president elect, which I thought was odd and peculiar because he's hopefully busy, learning, going to president school. And I have a particular kind of jurisdiction in the Southern District, including Trump Foundation, the Trump Organization.

Margaret Hoover: His pad.

Preet Bharara: His pad, certainly. And Obama never called me and I served under him for over seven years. So you're wondering what's up and various people have said from time to time, "Well you know, the president doesn't understand protocols. Donald Trump has not been in government before. He doesn't get it. He hasn't read the memos that the Justice Department promulgates about these things." And what I said to them in response is, "I told both my deputies in the Southern District about those phone calls. I told the Head of Transition for the Justice Department for Trump about those phone calls. And I also told my dad."

And my dad is now, then, a 78-year-old Indian immigrant, retired pediatrician from New Jersey, and I believe has not read any of the promulgated guidelines. And when he found out that the president-elect was calling me, he says, "I don't like that." So he understood that doesn't seem good that he's calling you and ... but I thought it was all ... and again, I advised everyone and nothing untoward was said. We shot the breeze. He was like, "What's up, Preet?" He called me two days before the inauguration when I thought, like, "Don't you have a speech that you got to write?"

Margaret Hoover: Steve Bannon was working on it.

Preet Bharara: Well, he claimed ... It's funny, he claimed, he said, apropos of nothing and without my asking, he said, "Yes …” — I can't do an impression of him, I'm sorry. He said, "Yes, I'm writing it all myself." He felt the need to say that to me. And he said, "And it's all about unity." Do you remember? Do you remember the carnage speech?

Margaret Hoover: This American carnage. This American carnage.

Preet Bharara: Yeah.

Margaret Hoover: Alright. So ...

Preet Bharara: So then we get to, I'm sorry. So then we get ... so then ... but then it's ... so then he becomes the president. And it's March 9th, it's a Thursday, and I get a message from the White House Secretary of the President saying, "The president would like you to return the call." And then I paused. And I called on my deputy June Kim and we discussed, you know, what do you do? And it seems odd, I think to people who have bosses and, particularly people who are responsible for your being in your position, which Donald Trump was for me, at least staying on. Like, you call the boss back. Not so simple as that in the Justice Department. And this was before I knew about these weird conversations that he had with Jim Comey about Michael Flynn and about loyalty, and all these efforts to say that Jeff Sessions had unrecused himself, and his job is to protect me.

 

And now even in recent times, these reports that my successor, Geoff Berman should unrecuse himself. So ostensibly, or hypothetically, he could protect Donald Trump, or Donald Trump's personal lawyer, Michael Cohen. But you have an inkling about these things. And I thought it's not going to go well, whether it's an innocent conversation or not, because what are people going to think of this side ... sort of to-the-side call that was not done through protocols, it was not done with the attorney general. The attorney general clearly had no idea that the president was calling me and I thought, "No good can come of it." And so I didn't return the call. And 22 hours later, I was asked for my resignation. I can't connect those things for certain, but they seem unlikely not to be connected.

Margaret Hoover: You can't snub the President of the United States, I suppose. Not this one. So, here's ... so you have this time on your hands and you write a book, and the book is ... you have every opportunity to make it a Trump book or to make it sort of a review and a criticism of the Trump administration or how you how you knew—

Preet Bharara: There's a lot of those books.

Margaret Hoover: ... And you decided not to do that. Instead, what you did is you wrote, really, an ethical primer on making the right calls in the justice system. People who are going through the justice system and what they encounter, what you encounter in the course of a case from the beginning to end. And it's really about morality because doing justice is about the right people making the right calls and that's when you have justice in the criminal justice system. Where did you get your moral compass?

Preet Bharara: To the extent I have one, I think from my parents. So if you read the acknowledgements, and I have a lot of people to thank and a lot of people to acknowledge, and the very last paragraph of the acknowledgements, even after my kids and my wife, are my parents, who, if there are any South Asian immigrants in the audience, you might appreciate that they wanted me to be a doctor, not a lawyer. And I say, my mom and dad never especially wanted ... and my brother also became a lawyer and we both married lawyers. So very disappointing to my parents.

They never especially wanted us to become lawyers, but the first people from whom I think my brother and I learned about principles and about justice and fairness, was from my parents. Not because they taught it, not because it was their profession, but because they modeled those things — those virtues and those values — everyday. So I think it was them. And then I had great teachers. And then I had other mentors after that, in the law.

Margaret Hoover: So, you write: "False allegations, wrongful convictions, excessive punishments, miscarriage of justice are often wholly the result of human failing, not flaws in the impersonal machinery of justice." One of the elephants in the room tonight is a recent CUNY law report that details the Bronx 120 Raid, which happened when you were U.S. Attorney. Can you tell us what the Bronx 120 Raid was, so that the audience is familiar with the story?

Preet Bharara: Yeah, and I appreciate there are people who... another chapter in the book, let me just start, let me take a couple of minutes on this. So another chapter in the book deals directly with criticism that you have to face if you do anything, I think, that's significant and certainly, if you are a prosecutor. You can face criticism, and I've faced, and my office has faced criticism of being too tough and not tough enough. Depending on your perspective, depending on the case, and sometimes in the same case. People thought we don't go far enough or we went too far. And there have been allegations about motivations about why you do things.

I was banned from Russia because of a case we brought against Viktor Boot.

Margaret Hoover: Banned from Turkey as well. [crosstalk]

Preet Bharara: I'm not officially banned from Turkey, but I think... [crosstalk]

Margaret Hoover: You had Erdoğan asking for your firing.

Preet Bharara: President Erdoğan tried to get me fired, yes. I detail a set of circumstances in which, in a very serious way, in the country of my birth, accusations that I purposely targeted people of South Asian descent, Indians in this country and elsewhere, for prosecution, because I was somehow self-loathing and wanted to prove something, according to one article, to my "white masters," presumably, Eric Holder and Barack Obama.

Criticism is a part of the job and part of the lay of the land. Now Donald Trump didn't make up “witch hunt.” I actually had an assistant compile all the times that significant targets had said "witch hunt," and it would have elongated the book by double. The fact that people have a criticism, I think is okay and you have to have a good and honest debate. What I worry about, with respect to criticism, is if it spawns I think suggestions, not based on evidence, like some of these accusations from the country of my birth, that a particular action was taken or intended for racist reasons. Or for personal gain. I mean there have been all sorts of accusations about how we handled the financial crisis. Or didn't handle accountability in the financial crisis.

The first thing I'll say is the people that I know, the professionals, either the NYPD, or the FBI, or the DEA, or in my own office, in every case that I'm aware of, and they made mistakes. And by the way, I'm very honest in the book about things that maybe we didn't do perfectly, maybe things that I overstated and I shouldn't have. I got rebuked by a judge. I talk about that. I don't shy away from it.

But, in my experience, whether people believe it or not, on the Bronx 120 case or anything else, the intentions were good, and people were acting in good faith. And, like in a lot of places in New York, the overall crime rate, as that CUNY report suggests, and the related Intercept article suggests, the overall crime rate in the country has gone down. And so that's causing — I think correctly, a good and honest re-thinking about how we go about dealing with crime, how we go about dealing with punishment.

But there are still places where crime is a huge problem. One of the first things I did when I was U.S. attorney was go to Newburg, New York that had a significant gang problem. In fact, the homicide rate in Newburg, New York, a little bit north of the city, was four times what it was anywhere else in New York.

And I met with the ... the first community meetings I had, and I met with moms and all African American moms, who said you have to do something here. And the first mom I remember meeting in a setting, at a community center, said, "I lost a son to gang violence." And she's telling this story, and people, grown men and women are crying in the room and then the next mom speaks, and I'm thinking, what could be worse than what the first mom said? And the second mom says, "I lost two sons."

The people in that room — and I'm getting to the main point in a second, but the preface I think is important, so people understand where I'm coming from. You can disagree and people can have heated arguments and that's all fine, but I want people to understand, where we're coming from. And the people in that room, in Newburg, New York, we're not talking about Eastchester Gardens yet, committed themselves to taking serious action. And we brought big gang cases. And we did big take downs of Crips and Bloods in Newburg because the community was crying out for it and because we cared about the victims in the community who were also people of color. Yeah, the people who were charged were people of color and members of gangs and associates of members in gangs and other enablers of them.

But the interest was in helping the community and making it safer.

Margaret Hoover: So just so people know, the Bronx 120 was, it occurred three years ago and it was the largest gang raid in New York City's history and it swept up 120 members of gangs, who—

Preet Bharara: So one of the criticisms is, they were not all members of gangs. And as the announcement said and as the indictment makes clear, there were some people who were members of gangs and associates of gangs. Members and associates, in the same way, and people can criticize the rhetoric. In the same way when we had done large mafia takedowns, you charge some people who are main members of the mob and then also their associations and people who were involved in criminal activity as well.

So I appreciate the criticism that some of the rhetoric that surrounded that criminal action made it seem like every single person was a member of a gang, and there was a taint on the part of folks who were maybe not as criminally liable as the people at the top, but—

Margaret Hoover: Do you think it's possible that individuals were swept up in that gang raid that actually weren't, just, not only just violent criminals, but weren't, that shouldn't have been?

Preet Bharara: I should issue another caveat. I was fired ten months after that case. I don't have access to the docket. I don't know what all the dispositions are, I can't argue line-by-line and case-by-case as to what happened in every particular instance. And so I think the Southern District of New York should respond and people should ask them what's going on. I have some top line views, and that is, I'm not aware of anything in any of those cases where somebody was charged who didn't commit a crime. I think there might have been a couple of cases … I think there might have been a couple of cases where prosecutors decided not to pursue, but again, I don't know all of the details of this because I'm not there anymore. I don't know what the dispositions have been.

And also, by the way, as in any case of this size, it takes a while for the outcomes to be determined and things might still be under seal. Is it true that the most culpable person was as culpable — that the least culpable person was as culpable as the top most person? No, of course not. But the situation that the NYPD came to us about, and that members of the community came to us about, and that law enforcement was discussing, was a highly increased rate of crime. And not just regular — violent crime, in a section of the Bronx where I think there were eight murders that had gone unsolved. Six of them ended up becoming solved because of the cases that we brought and that's why that was done.

Now I think another criticism that is a perfectly valid discussion to have, is why is law enforcement doing a takedown of that size in the first place? And what does it mean for communities of color? That's legitimate discussion to have. What I want people to understand, whether it's right or wrong, and it's a debate to be I think welcomed, is why does law enforcement do that in any instance? It is an article of faith, and maybe even a fetish, on the part of law enforcement, that deterrence works. And maybe some evidence shows it does, some evidence shows it doesn't. But in lots and lots of contexts, at the Justice Department and elsewhere, there is a view that if you do a one-off case — if there's a robbery problem somewhere or it's a public corruption problem or there's a healthcare fraud problem — if you arrest somebody in January, arrest another person in February, arrest five people in March, nobody gets the message. And nobody is deterred.

And so it has become standard operating procedure, at DA’s offices and at the Department of Justice also — again, whether you agree not agree — to try to figure out ways when you think that there's a problem of crisis proportions, to do large take downs. We've done it with the mob a millions times. The Department of Justice would send around missives to all the U.S. Attorneys’ offices when they wanted to make a statement and have a deterrent effect in healthcare fraud, for example. And they would say, "If you've got any healthcare fraud case, could you please plan to either speed it up or pause it, if it's ready already, until, say, May 1 of the following year, so that we can announce to the world, Eric Holder and United States attorneys all around the country would say, ‘We've had enough of this problem, healthcare fraud.’"

And I'm not meaning to compare the prosecutions in the Bronx to healthcare fraud. What I'm trying to explain is a law enforcement tool and strategy that is used in those kinds of cases, in mob cases, in gang cases and otherwise. And there may be legitimate reason to say, well, if you sweep up everybody all at once, whether it's healthcare or it's the mob or it's a gang case, there's some people who maybe are undeserving of that appellation of being in a gang. Even if you're careful in the indictment to say "Well, some people are gang members, some people are associates.” But the intent of it, as I've said a couple of times now, was to try to reduce crime and try to reduce the feeling of public safety hazard in those communities.

Margaret Hoover: I think the question, some of the criticisms that I read today is that technique a sledgehammer rather than a scalpel? And is there a way to refine that technique in a way that it might be more precise so as not to ensnare entire communities or groups of young men [crosstalk] in a way that doesn’t cripple communities?

Preet Bharara: Yeah, look, I think that's a discussion to have. When you say "cripples communities,"—

Margaret Hoover: The reason I said is because there's an op-ed in The Gothamist today about a father who absolutely conceded that gang violence exists and that criminal law enforcement has to help with that. He lost a daughter to gang violence. And then he'd also lost a son in this round up, in the Bronx 120, and he's now stuck in the criminal justice. I think he ended up pleading out to conspiracy to sell marijuana. And so there's two sides of the coin here, and of course, the criminal justice system isn't perfect.

Preet Bharara: No. By the way, the criminal justice system, I say often that no serious social or medical or even public safety problem is ever going to be solved purely by prosecution. Whether that's the opioid crisis, corruption on Wall Street, corruption in Albany, or anything else. There's lots of causes and lots of issues and sure, we should always be thinking about better ways to do things. There are always circumstances in which you can decide to do one thing versus another thing. But another thing to consider, I understand the report had various analyses of things that happened, I think, without complete information.

The one important metric, you would think, that I don't believe was addressed — and maybe law enforcement had it wrong, maybe it had it right, but I don't believe it was addressed — what was the level of crime before that case was taken down? And what was the level of crime and the feeling of safety after that case was taken out? It would seem to me that if you're really talking about all the issues relating to crime, that that's something to consider also.

Margaret Hoover: The structure of your book, it's structured in four parts: inquiry, accusation, judgment and punishment. So it nears the trajectory of any case that you litigate as a prosecutor.

And one of the critiques that's come out, in the conversations about your book, has been an angst from some who wished there had been more justice done to those who were involved and responsible — most responsible — for the financial crisis in 2008. But one of the things you talk about in your book is walking away when there isn't enough evidence.

Preet Bharara: Yeah, so there's a whole chapter called “Walking Away.” And I think we're discovering the reaction in the public psyche when people put, pin all their hopes on a prosecutor. Whether it's—

Margaret Hoover: Has that happened recently?                    

Preet Bharara: It happened, I think, recently, yes. I wrote a piece for Time Magazine about Bob Mueller last year, in which I was going to have a similar phrase in the book about ways in which some people treated me. Prosecutors again, they have a binary function, right? You charge or not charge. And you've heard that word a lot. And you said earlier, you know, it's a very blunt instrument. And it's actually not possible to do perfect justice with prosecution. Because sometimes people do bad things, and it's not enough to charge them. Sometimes people get away with things, also.

But you can only do what the law permits. You can't go beyond what the law permits. And sometimes the hardest thing in the world, is believing that people acted recklessly, or negligently, or corruptly, or greedily, and acted in scummy ways, to use an official legal term, but if there's not enough evidence to prove criminal intent beyond a reasonable doubt, then you can't bring the case. And sometimes it takes other mechanisms in society to cause people to be accountable and that's true when you're talking about Donald Trump, if you think he's guilty of obstruction of justice, and it can also be true in matters like the financial crisis.

Margaret Hoover: So, you talk about ... a lot of reading the book is getting a sense of what it's like to Preet Bharara, and what it's like in the courtroom. And you have this moment where you describe, while you're waiting for a verdict. It's the verdict of a very high profile hedge fund manager who was convicted of insider trading. Not to give away what the verdict was. But you tell a story about it and also how your family internalized that.

Preet Bharara: Yeah, so look, I'm going to go back to the question you were asking earlier about the criticism. Part of what's revealed in that CUNY report and in the accompanying Intercept article, is I think a deep, human discussion of the impact of prosecution on individuals, on people who get charged. And to the extent people think prosecutors don't care about that, if the prosecutor doesn't care about that and doesn't feel that, then they’re in the wrong line of work. Part of what I do in that chapter on the verdict is I describe what it's like at the moment of conviction.

At the moment of conviction, it's a sad moment. It means ... the only reason that prosecutors have their jobs is because society is imperfect. There are people who do bad things and orderly society has determined that in some of those cases, a judgment has to be rendered of guilt by their fellow citizens and then also maybe separation from liberty. What's more awful than that? It's a terrible thing.

Margaret Hoover: You’ve prosecuted Wall Street tycoons, Osama Bin Laden's son.

Preet Bharara: In law.

Margaret Hoover: Son in law. Somali pirates. Al Shabab and al Qaeda assassins, terrorists and paid assassins. Against the breadth of all the cases that you've prosecuted, what gets your juices flowing the most? What is the most exciting for you or the most gratifying?

Preet Bharara: I'm going to object to the premise of the question because at least the first part of it—

Margaret Hoover: You don't get excited by your work?

Preet Bharara: You shouldn't get your juices flowing, I think, if you're a prosecutor. I mean that. If you're ...

Margaret Hoover: What excites you the most?

Preet Bharara: I'm just trying to understand how you're asking. I just want to make it clear ...

Margaret Hoover: What's the most gratifying?

Preet Bharara: I'll tell you what's the most gratifying and it's another area where I got in a little trouble once. What's most gratifying, in some ways, is to be in a position to pursue cases and hold people accountable, who really should know better and who really hold the public trust and whose crimes are really, really galling. And those would be your elected officials, because we brought a lot of cases that were very important and held a lot of people accountable, including powerful people, not everyone that people would want, but a lot. And the times where people would stop me in the street — and even the CSO's, the court security officers, in my own office building — were when we brought cases against politicians in Albany.

Because everyone thinks, you know what? Everyone likes to cheat. You represent us and a public corruption crime is one, whether you vote or not, it affects you. Whether you care about politics or not, it affects you. If you're Democrat or Republican, no matter who the politician is who represents you in your district, it affects you. And so you have no choice but to be affected by that and there's already a lot of, I think, disillusionment with politicians, because they're not doing their job, as a lot of people think, and they engage in a certain kind of behavior that people don't love.

And then on top of that, if you're lining your pockets because you got elected to office, that's really, really upsetting to people. And so that's gratifying. And a couple of things in particular that we did, innovations that we had, it is the case under the New York State Constitution that if you get removed from office, if you serve in Albany, even if you're convicted of a crime, you get to take your pension that you guys pay like till you die. And we figured out a way under the law, and again some people have criticized this also, through criminal forfeiture to take back those pensions. You know what? That was pretty gratifying.

Margaret Hoover: I was personally gratified, I mean, not many U.S. attorneys have taken down the sitting chair, head of the Assembly, and the Majority Leader of the State Senate. And both of them, I don't know if I would call them equally corrupt, but both of them were deeply corrupt and your office brought them to justice.

Preet Bharara: And one a Democrat and one a Republican.

Margaret Hoover:  One was a Democrat and one was a Republican.

Preet Bharara: It's important for people to understand in this, I think, heightened politicized moment when there are accusations and people bring cases against those who are their political adversaries and vice versa, that here in New York, my office prosecuted and continues to, Democrats and Republicans alike, based on their conduct, not based on their affiliation.

Just by way of background, in all this discussion about how prosecutors' offices think about what they pursue and think about communities of color and think about underprivileged folks and think about overlooked people and who needs the help of a prosecutor's office, one thing that I'm most proud of, and I have a whole, the second to last chapter of the book is about this, is how much effort we made to protect the rights of inmates at Rikers Island. Which I think I describe in one of the first sentences of the chapter as basically a broken hellhole, because there's way too much violence. There's way too much resort to force as the first option as opposed to a last resort and so I'm very proud, not only of the fact that we entered into a suit and got a consent decree and got 7000 more cameras and better disciplinary rules and better training mechanisms and all sorts of things for a population of people, by the way, that a lot of politicians really don't care about and hadn't cared about and the prior administration had not done much about at all. Not only that, but also for the first time, I think in a decade, bringing very serious, hard hitting prosecutions against correction officers who had engaged in violence against inmates, inmates who were in jail pending trial.

It's really hard to reform a culture like that. And I'm very honest in the book about saying sometimes that takes something more radical than just putting in more cameras so that there are fewer places where guards can visit violence upon inmates. And so I think, to answer your question, I think all things should be considered. Maybe you shut down the place. Maybe you break it up. I was talking to people recently who worked on that case, because I invited one of them to a class I teach here at NYU. And sometimes a bad culture can get embedded into a place, sort of like asbestos baked into the walls, and you have to do something radically different. So I'm not proclaiming, necessarily, that that's the right thing to do, but I think it deserves very, very serious attention.

Margaret Hoover: If you hadn't been fired by Trump, would you have continued to work for the administration?

Preet Bharara: It's hard to see how I could've lasted. I think if I wasn't fired that day, I would've been fired at various other junctures along the way. I don't know. Part of the reason, it depends on whether or not, if the dude had stopped calling me or not.

Margaret Hoover: But you made a decision, after you went to his pad, to stay working for him.

Preet Bharara: Yeah. And I'll tell you why I did. And this all hopefully this makes sense, because people scratch their heads like what are you talking about? You knew ... And we had a family meeting. My kids, I told them that Donald Trump wants to meet with me to keep me on and my kids thought that was like the funniest dad joke of all time. And I'm like, "No, it's true." And they're like, "What?" So I understood my job to be not serving the president. Barack Obama had a photo opportunity with all the United States Attorneys back in, I don't know, it was 2011 or 2012. And some of my colleagues have posted this on Twitter. And it's really unbelievable when you think about it in the current environment. So we had this photo opportunity and the President of the United States comes out — the former president, who never called me, thankfully.

And he says, he congratulates us on our service and he thanks us for our service. That's all of us. Everyone. Pat Fitzgerald, Joyce Vance, everyone. And he said, "I just want you to know, I appointed you, but you don't serve me. You don't answer to me. You don't work for me. You work for the public and your loyalty is to the Constitution." How refreshing is that, right? And by the way, there were no cameras there. There was no television there. There was no court reporter there. That's what he thought and what he felt and it's hard to explain to you how proud it made you feel to be ... We knew that. That's how I think about the job, but to hear the president say it, it's really extraordinary. And then you hear this president say the opposite thing.

And so, when I agreed to meet with Donald Trump, I had a little speech, I had a little sermon I gave. I said, "Presumably, you're asking me to stay because you appreciate and respect the work that this office has done and how it has been independent and how we don't care about ..." I had to say those things on the record and then I expected, maybe naively, at least with respect to the president, to be kind of unmolested in my job. And then he was calling me. And my view is that he thought he wanted, he thought it was important to cultivate a relationship with certain kinds of people, including the FBI director, Attorney General, and also the U.S. Attorney in the jurisdiction where he has a lot of business and a lot of interests.

And so I thought, it's related to your question, how could you possibly work in an administration where you don't agree with the policies of the president and maybe he wasn't your guy, which he was not. You can do it if you're independent and you're left alone to manage your affairs and manage the affairs of the district in the way you think is right and just. And I wasn't given an opportunity ... Look at the first test of that, when he called and I didn't return the call, and I was asked to go. So it's a weird hypothetical question you ask. Because I think it was important to him to cultivate a relationship with the person in that job and so I don't know how much longer—

Margaret Hoover: I think what you're saying is—  

Preet Bharara: If he'd left me alone—  

Margaret Hoover: If he had not called you, if he'd left you alone, you would've done it.      

Preet Bharara: If he would've left me alone and I was never asked — look. Sally Yates got fired because she took a principled position that she thought was right under the law and the facts and they fired her for that. So I had no illusions after that there might come a time where I might have to do the kind of thing that Sally or some other people did and that I might not be able to last. But in the absence of those things, if I were left alone, never asked to do something that I wasn't supposed to do, I think I would've continued in the job. Because it’s — I'm a political appointee, but the people in my office, I have no idea what their party affiliations are. You don't ask that. You don't care about that. You're not allowed to ask that. You don't want to ask that.

The bulk of work done by these U.S. Attorneys' offices around the country, notwithstanding all this turbulence about Trump and lock her up and lock him up, most cases that are handled, there could be controversies like we've been talking about tonight based on what makes sense in the interest of justice, but they're not political. You don't give a damn if you're a Republican or a Democrat. No, you follow the law. You follow the facts.

And all the people who are doing these jobs in all these offices around the country ... Look. I started as an Assistant U.S. Attorney when George W. Bush was president. I'm sorry, in 2000. Who was president in the beginning of 2000? Bill Clinton. When Bill Clinton was president. And I remember as a young prosecutor — and then George Bush became president — my job didn't change at all. There was no difference. At some point, they switched out the pictures of the president and the vice president in the lobby, but the vast majority of the work that's done doesn't change.

Margaret Hoover: So I'd like to end this with an anecdote that you tell at the end of your book, because your book is called Doing Justice and it's about people — hopefully good people — making ethical decisions, moral decisions, in order to implement truth and work through the mechanics of the justice system. But you tell a story at the end and you mentioned the Muslim ban at the end of your book in the context of going beyond justice, about the first few days after 9/11, when a white supremacist in Texas decided to take it upon himself to take vengeance upon Mohamed Atta and Al Qaeda and to go and then to murder—

Preet Bharara: I think the phrase he used was, he thought — Anthony Michael Stroman, who said it was his duty to kill some Arabs.           

Margaret Hoover: So he succeeded. He killed two Arabs and then he walked into  — this is in Texas — and he walked into a Texaco mini-mart and shot Rais Bhuiyan in the face with a sawed-off double barrel shotgun and left him to die, except for that he didn't die.

Preet Bharara: He did not.

Margaret Hoover: And this gentleman survived, after a series of surgeries. He lost most of his vision in one eye, but he was a devout Muslim, prayed five times a day, and after healing and getting his life back together, thought about the person who tried to kill him and decided to forgive him. And he mounted a campaign to spare Stroman's life, who at that point was on death row in Texas.

Preet Bharara: Yeah.   

Margaret Hoover: Can you tell the rest of that story? Because I have a—

Preet Bharara: You told most of it.      

Margaret Hoover: Well—             

Preet Bharara: No. No. Look. So can I just take one step back, quickly?              

Margaret Hoover: Yeah.               

Preet Bharar: So a theme of the book and a theme of my time as the U.S. Attorney is, yes, we are a nation of laws, not men, and that's important. It's a bedrock principle of our constitutional democracy and of orderly society. But what you miss in that formulation, we talked about at the beginning, is that people do justice. And you can have a perfectly written Constitution and a perfectly written statute and if the people who are responsible are not ethical and have integrity and aren't acting in good faith, and even if they are sometimes, as has been discussed here, with respect to me and others, you're not going to get justice. But the people matter. And liberty and justice live in the hearts and minds of men and women. And I have this whole book about stories of how the law works, even though the law has limits, and then I end with a story, as you say, because there are things that the law can't do. The law can't cause you to forgive people. The law can't cause you to love people. The law can't cause you to appreciate your neighbor. The law can't teach you grace.

I think the first line of the chapter is, “You will not find God or grace in formal, legal principles.” And you don't. And if you really want something beyond formal, legal justice, which is not coextensive with justice generally, then you have to look to extraordinary people. And that extraordinary person is Rais Bhuiyan, who you mentioned, and he gets shot in the face. And you mentioned he is a devout Muslim and he still has pellets lodged in his forehead. And when he prayed five times a day, touched his head to the ground, he felt pain and a reminder of almost being murdered by Mark Anthony Stroman. And so he launches this campaign — not only forgives him, which how many of you would do that?

And then tries to spare him from death row in the connection with the murder of someone else after 9/11. The New York Times did an interview with Mark Anthony Stroman, who was on death row, and asked him what he thought. And it turns out, that even on death row, Stroman had learned of the campaign of this person that he tried to kill, who was trying to save his life. And he was asked, "What do you think? What do you make of that?" And Stroman says things like, you know, "Hate has to end. Hate does a lot of damage in the world." And he said how much he appreciated that there was a man whose life I tried to end, is now trying to save mine. And those were among his last words. And then he was executed.

Margaret Hoover: So was justice done there?       

Preet Bharara: Well, so I say, I'm not a proponent of the death penalty, but that was the law in Texas, so I say formal justice, whatever that is, the machinery of justice unfolded and ground on and that was done. But I thought there was a more important lesson than whether the formal machinery of justice ground on in the way that it was supposed to under the law and that is that you had an example, an inspiring example of a person who was shot in the face, left for dead, who decided that this other person who had tried to kill him and killed other people was capable of redemption and in the process, elevated himself from victim to kind of hero and transformed the very person who had tried to kill him.

And that's a lesson for everyone who relies too much on formal notions of justice. That if we actually want society and the country and communities to live in harmony and to believe in something called cosmic justice and have people get along and appreciate each other, no matter who you are, what your color is, what your background is, you're not going to get that from a cold statue, although that can have a role. You're going to get that from learning to overcome lots of human failings that you have, like Rais Bhuiyan did about that person. And I could think of no more inspiring example to end the book with than the story of Rais Bhuiyan and Mark Anthony Stroman.

MICHAEL WALDMAN:

Thank you for listening to this episode of Brennan Center LIVE, with Margaret Hoover, the host of PBS’s Firing Line and former U.S. Attorney for the Southern District of New York Preet Bharara, the author of Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.

Please check out our events, follow us on social media, and sign up for our newsletter at BRENNANCENTER DOT ORG. Brennan Center LIVE is available on our website, or wherever you get your podcasts.

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Thank you for listening to this episode of Brennan Center LIVE, with distinguished author Ta-Nehisi Coates and NYU School of Law Professor Melissa Murray.  

Please check out our events, follow us on social media, and sign up for our newsletter at BRENNANCENTER DOT ORG. Brennan Center LIVE is available on our website, or wherever you get your podcasts.