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STAY TUNED: Securing the Border and the Ballot (with Jeh Johnson)

Preet Bharara: Secretary Johnson, thanks for joining us.

Jeh Johnson: Preet, thanks for having me.

Preet Bharara: It’s really great to have you. We have so much to talk about, I don’t know how we’re gonna get through it all.

Jeh Johnson: I’m looking forward to our discussion.

Preet Bharara: You’ve had so many jobs, both in the private sector and in the public sector.

Jeh Johnson: I can’t keep a job.

Preet Bharara: Well, tell me about it. We’ll get to all of them, I think. But was what your favorite job in public service and why?

Jeh Johnson: Well, funny you ask. The best job I’ve ever had in public service was being as assistant United States attorney in the Southern District of New York.

Preet Bharara: Oh, that’s great to hear.

Jeh Johnson: I thought you might like to hear that. I was hired by Rudy Giuliani in 1988. I was there for three years. I did public corruption cases. I tried 12 cases in three years, argued 11 appeals. And the U.S. Attorney’s Office in Manhattan at the time was really an extraordinary collection of people. You had Jim Comey, Louie [?Free], Fran Townsend, then Fran [?Fragos], Dave Kelly, Pat Fitzgerald, Ken [?Weinstein], David [?Fine], Deirdre [?Daley]. A really impressive group of people, who went on to be U.S. attorneys, career prosecutors, main justice judges.

Preet Bharara: Cabinet officials.

Jeh Johnson: Cabinet officials, one or two. Two FBI directors. And it was by far the best job I ever had in public service as a young lawyer learning how to try a case, always in court, doing the right thing for law enforcement and for criminal justice. And I’m glad that I had the experience. It’s been the offshoot for almost everything else that I’ve done since.

Preet Bharara: Let’s jump to your time in the Department of Defense. You at one point served as general counsel to the Air Force?

Jeh Johnson: Correct.

Preet Bharara: Under Bill Clinton?

Jeh Johnson: Correct.

Preet Bharara: And then under President Obama, you served for a while as the general counsel to the Department of Defense.

Jeh Johnson: Four years.

Preet Bharara: How many lawyers are at the Department of Defense?

Jeh Johnson: Good question. Most people can’t fathom the answer to this question.

Preet Bharara: You’d think it would be three or four.

Jeh Johnson: You’d think it would be 300 or 400. I asked students in classes, how many lawyers do you think there are in the Department of Defense?

Preet Bharara: So everyone who’s listening, why don’t you take a mental guess.

Jeh Johnson: It’s actually about 11,000.

Preet Bharara: Okay. So why on earth does the Department of Defense need 11,000 lawyers, and how much do the lawyers get in the way?

Jeh Johnson: Well, first of all, the Department of Defense is by far the largest agency of our government. It is one of the largest ministries of defense in the world. And there’s something like three million people in the Department of Defense. And so, the 11,000 lawyers consist mostly of jags, lawyers in uniform.

Preet Bharara: Right.

Jeh Johnson: And that number, 11,000, includes guard in reserve. So, it is literally true that I probably ran the largest law department in the whole United States for four years when I was general counsel.

Preet Bharara: So, why’d you want that job?

Jeh Johnson: Interesting question. In 1998, let’s turn back the clock to Bill Clinton’s administration, I was offered, really out of the blue, the job of Air Force general counsel. That was a presidential appointment, Senate confirmed. And I served for the last two years of the Clinton administration. Six years later, I met Barack Obama, candidate Barack Obama, and became involved in his campaign, his transition. And then he asked me if I would be general counsel of the Department of Defense. And it was a really critical time, in 2009, 2010, ’11, ’12, to be the senior legal official for the Department of Defense. We had lots of very important, complex issues, like targeted lethal force; our counterterrorism operations in places like Yemen and Somalia; getting Bin Laden; use of drones; law of war detention at Guantanamo Bay; and the repeal of “Don’t ask, don’t tell” in 2010; reforming the military commission system at Guantanamo Bay. So, it was a fascinating, interesting, and important time to be there, and I’m glad I—

Preet Bharara: Not a lot of challenges.

Jeh Johnson: Not a lot of challenges.

Preet Bharara: I want to get to some of those, because they’re complicated, difficult. What was the most fraught, difficult of those issues for you during your time?

Jeh Johnson: Guantanamo Bay.

Preet Bharara: The closure of it? Which never happened.

Jeh Johnson: The legal issues associated with law of war detention, the trial and prosecution of detainees at Guantanamo Bay. The issues were, in many respects, novel, but also, in many respects, very traditional. Throughout, we sought to apply—and I encouraged our legal community to do this—sought to apply traditional law of war principles to what we were doing in our counterterrorism operations in a modern-day timeframe against a nonconventional enemy. For example, there was the issue of the detention of a member of a terrorist organization who also happens to be a U.S. citizen, which was litigated in the courts when it came to detention, but also when it came to targeted lethal force. And so, I advocated that we apply traditional principles. And if you go back to the case of [?Kwerin], 1942, the Supreme Court decision during World War II, the Supreme Court said that a U.S. citizen can defect to the enemy, and if so, should be treated like all other enemy combatants. That’s just a small sense of some of the issues that went into the thinking about law of war detention, Guantanamo Bay, and so forth.

Preet Bharara: So, can I ask you about the closure?

Jeh Johnson: Sure.

Preet Bharara: I mean, a lot of people, for good reason, think that Guantanamo Bay should be closed. There are some people who think otherwise, and they have reasons to that are not illegitimate. Do you think it was a mistake for the president right off the bat to say he intended to close Guantanamo Bay within a year because it was impractical?

Jeh Johnson: Well, that’s interesting. If you ask most people, do you believe we should close Guantanamo Bay, which represents a black mark on American prestige, they would say yes.

Preet Bharara: Well, that’s a loaded question.

Jeh Johnson: Okay. Right. Well, here’s the other loaded question.

Preet Bharara: I’m gonna ask you some.

Jeh Johnson: Do you believe that we should close this detention facility offshore and bring all these terrorists to the continental U.S., you’re gonna get a very different answer. And public support for closing Guantanamo Bay was probably at its peak the moment Barack Obama took office.

Preet Bharara: Right.

 

Jeh Johnson:  And we actually had made considerable progress in meeting his deadline to close the facility in a year. We had found an alternate facility in Illinois.

Preet Bharara: Right. I remember that.

Jeh Johnson: We had found a congressional delegation that didn’t—wasn’t vehemently opposed to it.

Preet Bharara: Led by Senator Durbin.

Jeh Johnson: In Illinois, yes. And so, we had done the hard work. But then events kind of spiraled against us. There was the attempted bombing over the Detroit Airport, the Underwear Bomber in 2009.

Preet Bharara: The so-called Underwear Bomber.

Jeh Johnson: The so-called Underwear Bomber. There was the announcement that we were going to try the 9/11 defendants here in Manhattan, which I supported.

Preet Bharara: As did I.

Jeh Johnson: Politically—of course you did. Politically, support for closing Guantanamo began to erode.

Preet Bharara: Do you think there’s any legitimate reason for the argument that Guantanamo Bay be kept open for people who are enemy combatants? In other words, I’m not asking if you agree with it. I mean, I don’t agree with it either. But do you credit any of the arguments? Do you think they were made in good faith?

Jeh Johnson: Well, I very much agree with and support the principle of law of war detention. Law of war detention, in other words, holding on to an enemy combatant for the duration of the conflict. And armies capture and kill enemies. So when you capture somebody, you gotta have someplace to send them.

Preet Bharara: Right.

Jeh Johnson: The challenge when you’re dealing with an unconventional enemy or a terrorist organization is when does the conflict end? When does that law of war detention authority evaporate?

Preet Bharara: And also, who is an enemy combatant?

Jeh Johnson: And who is an enemy combatant? That too can be a challenge. So, much of my time when I was general counsel for the Department of Defense, in doing the legal review for targeted lethal force for some of our counterterrorism operations was centered around the question, is the objective a member of a terrorist organization that we have legal authority to go after? And the same question arises when you’re dealing with the detention context. So, in the habeas cases brought by Guantanamo detainees, the courts would have to grapple with the very same question. And I think the danger there is after a terrorist strike by a lone wolf, by someone who’s self-radicalized, you hear these political calls, these knee-jerk calls. Well, this person should be treated as an enemy combatant and sent to Guantanamo. The problem is, that person may not be an actual member of a terrorist organization that we have domestic legal authority to use military force against.

Preet Bharara: Even if they, as a lone wolf, swore an allegiance for Al Qaeda, for example, and believe in jihad.

 

Jeh Johnson: That is—you’ve just hit on the essence of how the terrorist threat to our nation has evolved over the last eight, ten years. So, in the first term of the Obama administration and in the second term of the Bush administration, we were grappling with a terrorist threat that encompassed individuals who were part of Al Qaeda, [?El Shabab], other organizations who had trained these organizations, been equipped by these organizations, who had existed in a geographic location with these organizations, and had accepted orders, much like a conventional army, by a leader of this organization. Classic example being the 9/11 defendants.

Preet Bharara: Right. And it’s easy to identify them as soldiers in that effort.

Jeh Johnson: Correct, right. So, when you’re dealing with a self-radicalized actor, someone who is inspired by something they see on the Internet, who may not have ever met a single other individual in the terrorist organization that they ascribe to, I think that model collapses. I think for the self-radicalized actor, civilian law enforcement has to be the answer.

Preet Bharara: And then going to the question you raised about the indefinite nature of certain kinds of conflict, like we’re in now. We’ve been at war with Al Qaeda and certain other terrorist organizations coming on 17 years now. And so, if a war is gonna last forever, is it appropriate to have indefinite detention for people who you’re not trying in any fashion?

Jeh Johnson: I gave a whole speech on this exact topic.

Preet Bharara: Don’t do that here, okay?

Jeh Johnson: I won’t do that here.

Preet Bharara: Give us the headline.

Jeh Johnson: November 2012, I gave a speech at the Oxford Union, “When Will the War Against Al Qaeda End?” to try to answer this question. And basically, what I was saying in that speech was that at some point when Al Qaeda is decimated and no longer able to launch a strategic attack against the U.S., we have to say to ourselves, legally and politically, that armed conflict that Congress authorized in 2001 is now over. There may be other conflicts going on, but that one’s over. And the courts inevitably in these habeas cases are gonna have to grapple with whether the conflict against Al Qaeda and associated forces has ended. The U.S. government, I know the current administration takes that position that it has not ended. And that’s something that the courts will resolve.

Preet Bharara: But why are any group of politicians, so long as Al Qaeda has some breath, going to say that the conflict is over, and as a consequence, give up some of the powers that they have under the –

Jeh Johnson: Well, an army can still exist, but not be engaged in armed conflict anymore.

Preet Bharara: I’m saying as a political matter.

Jeh Johnson: As a political matter—

Preet Bharara: How difficult is it gonna be for people to get—

Jeh Johnson: As a political matter, it’s easy for people to say, oh, the conflict’s continuing. The lawyers say it’s continuing, and so everything’s fine, and the court should go on with this. I think—

Preet Bharara: So it’s gonna take a while.

Jeh Johnson: —17 years out, the courts may be a little more skeptical of this. There’s been, I think, some trend lines in here. In the second Bush term, the court’s gonna push back on—in the first and second Bush terms, the court’s gonna push back on some of the things the Bush administration did. In their defense, I think that a lot of what they did was novel, and they had to kind of make it up as they went along. By the time we got into office in 2009 in the Obama administration, a lot of the legal groundwork had been set. A lot of the legal limits had been set in this new kind of conflict. And we sought to live within those legal limits. And I think the courts saw that and gave us a fair amount of difference. So, with a lot of these habeas cases brought by Guantanamo detainees, you saw the courts basically denying the applications, siding with the government. I think now we can anticipate a wave of increasing levels of court skepticism almost 17 years after 9/11.

 

Preet Bharara: For our non-lawyer listeners, do you mind telling us what you mean when you refer to a habeas petition?

Jeh Johnson: Ah, a habeas petition. Yes. So, a detainee at Guantanamo Bay has a right, as the Supreme Court has held, to challenge his detention, to challenge whether or not he should be legally detained. The vehicle for doing that is habeas corpus petition, which is a very traditional type of litigation that people have a right to bring against the United States government. So, shorthand for that is habeas petition.

Preet Bharara: I want to talk about one more thing relating to the military, and it’s who gets to serve and under what conditions. And you mentioned the repeal of “Don’t ask, don’t tell”. And there’s now a lot of controversy and district about the permissibility of service by people who are transgender. Anything about your prior experience inform what you think about the current controversy and issue?

Jeh Johnson: In 2010, when we were assessing whether we could repeal “Don’t ask, don’t tell” and permit gays to serve openly in the U.S. military, there was actually a race among all three branches of government to get to the same place. Congress—the Democrats in Congress, well, they had the votes in 2010 before the midterms. Were anxious to repeal the law. Bob Gates, my boss, the Secretary of Defense when I was General Counsel, saying no, we’ve gotta do this carefully, deliberately. Let a study group led by Johnston and General Carter Ham do their assessment, and we’ll see what they conclude about whether or not the military can do this. And the courts were getting involved. The courts, after years of deference to the military, 17 years of deference, from 1993 to 2010, were now jumping in and taking the position that “Don’t ask, don’t tell” was unconstitutional. And so, in the midst of our review, we actually were joined by a judge in San Francisco from enforcing “Don’t ask, don’t tell”.

 

Preet Bharara: And it wasn’t just a legal evolution, right? There was an evolution in people’s thinking about what tolerance means.

Jeh Johnson: There was [crosstalk] [00:36:11] thinking, evolution and social and attitudes toward this. And frankly, the military had been allowed to exist in a static mindset of 1993 for 17 years.

Preet Bharara: Right.

Jeh Johnson: And I actually believe that the repeal of “Don’t ask, don’t tell” in December 2010 kind of started a tidal wave of events to advance the civil rights and civil liberties of gays and lesbians in this country. Because very soon after that, you saw gay marriage being authorized and enacted in states. You saw court cases striking down DOMA, for example. My law partner Robbie Kaplan—

Preet Bharara: Right. The Defense of Marriage Act.

Jeh Johnson: —represented Edith Windsor in the defense—in the challenge to the Defense of Marriage Act. So, you saw a fairly rapid-fire chain of events after the repeal of “Don’t ask, don’t tell”. So, social attitudes during that period of time were definitely changing.

Preet Bharara: Well, who would have thought that? You’re saying that the very traditional and conservative institution of the military was a leading force for social change in America.

Jeh Johnson: Yes and no. Yes and no. In our study that we did to assess whether or not the military could handle the repeal of “Don’t ask, don’t tell”, we did a lot of comparisons to racial integration in the 1940s and ‘50s. In the ‘40s and ‘50s, the military actually was ahead of civilian society in integrating. What was interesting is the chaplain force was encouraging this, and the chaplains in the military were leading the effort to do this. They were really out front. And some of the same arguments against the repeal of “Don’t ask, don’t tell” existed against racial integration. Almost the exact same words. By 2010, the military was kind of behind the curve in terms of where civilian society was going. But I think that politically, when a lot of people saw that the military could handle this change, you saw things happening in the courts, and judges are human beings too. They exist in society like everybody else. And you saw a lot of new state laws being enacted.

Preet Bharara: You’re an African-American lawyer at the Department of Defense. Did you think about any of this through the lens of prior discrimination and racial bias?

Jeh Johnson: I did, actually. Going into our assessment of whether “Don’t ask, don’t tell” could be repealed, I tended to look at it as a civil rights issue, which frankly didn’t resonate all that well in the military community. What did resonate was what the Chairman of the Joint Chief said, Admiral Mike Mullin, which is that this is an issue of integrity. And a gay person has to essentially lie about their identity to serve his country, whereas a straight person does not. So, it’s a matter of integrity, the gay service members’ and ours, to permit them to serve openly like everybody else so that they can talk about their family, they can talk about their spouse, they can talk about their lives.

Preet Bharara: But that’s an odd distinction to make between the integrity of the person being able to be true to his or her identity versus the civil rights issue. To me, they’re sort of merged and overlap.

Jeh Johnson: When you put it as a matter of integrity and basic fairness, then that resonates much more in the military community, we found. And that’s how my co-chair, General Carter Ham, who was an Army four-star, who had been in the Army his whole life, saw it. And it just—I think more people identified with it in that way.

Preet Bharara: So, you mentioned a man by the name of Barack Obama. Tell us briefly why you supported him and what you thought of him, and why you thought he would be a good president.

 

Jeh Johnson: So, I met Barack Obama in June 2006 at a fundraiser in New Jersey. And we immediately struck up a friendship. And frankly, he did a pretty effective recruitment job on me. And I was planning on sitting out the Democratic primaries. I’m a Democrat, but something about Senator Obama inspired me. And on November 22, 2006—I still remember the day, and I still have the pink message slip. He called my office at Paul Weiss and said he was thinking about running. Would I support him? And I said, immediately, “If you run, I will support you.”

Preet Bharara: Was there a message from Hillary Clinton too?

Jeh Johnson: No. He got to me first.

Preet Bharara: Okay.

Jeh Johnson: And just something about the moment told me, this is gonna be history, and you’re being invited to participate in history from the ground floor.

Preet Bharara: Can we pause there for a moment and talk about one element of your biography? And that is your grandfather, Charles Johnson. Tell us about your grandfather.

Jeh Johnson: My grandfather was a sociologist. He was president of Fisk University, which is a black college in Nashville, Tennessee. And he wrote a lot about civil rights. And when you were a black man in the ‘40s and ‘50s and you were an educator, and you wrote a lot about civil rights during the McCarthy era, you inevitably came under suspicion. So, my own grandfather, actually, in 1949, tested before the House on American Activities Committee to deny he was a member of the Communist Party, and then went on to give a prepared statement in defense of the patriotism of the American Negro, as he put it then. And he was a forward-thinking person. In 1930, he went to Liberia to investigate allegations of a government-supported underground slave market, which is how I got my name. And—

Preet Bharara: Spelled J-E-H.

Jeh Johnson: Another way to spell J-A-Y.

Preet Bharara: Which a lot of people pronounce—seems to think it’s Jay. Whose name do you think is more mispronounced, yours or mine?

 

Jeh Johnson: That’s a good question. But I’ll come back to that. So he met somebody in Liberia with the name J-E-H, a member of the indigenous population, who he admired and respected. And so the next year, in 1931, my grandfather gave the name to my father at a time when African-Americans were not celebrating their African heritage. Now we do. So, my grandfather gave the name to my father, who gave the name to me, and I gave it to my son. So as far as I know, there are three Jeh Johnsons in the world. What’s interesting, if you put the name J-A-Y Johnson into Google, it’ll ask you, do you really mean Jay Johnson or J-E-H Johnson with this Wikipedia entry here? So, the name is becoming more and more conventional.

Preet Bharara: The algorithm kind of works.

Jeh Johnson: Right.

Preet Bharara: How far back an ancestor of yours was born into slavery?

Jeh Johnson: My great-grandfather, Charles S. Johnson’s, father, Reverend Charles H. Johnson, was born a slave in 1860 in Lynchburg, Virginia. He was emancipated when he was three years old and traveled to Bristol, Virginia after getting a college degree at Virginia Union. Founded a church in 1890, which is still there, and pastored that church for 42 years. So, he was an emancipated slave.

Preet Bharara: So, now you’re—

Jeh Johnson: So, you can tell I’ve traced my family history.

Preet Bharara: So, now you’re in 2006. You receive a call from a young African-American senator who has—

Jeh Johnson: Also with an African first name.

Preet Bharara: Also with an African first name, also mispronounced frequently—not anymore—who has designs on the presidency of the United States of America. What do you think of that moment, about—

Jeh Johnson: Something told me—maybe it was my experience as an African-American. Maybe it was my training and experience at Morehouse College, where Dr. King went 30 years before me—something told me, this is gonna be history, and you’re being invited to get in on the ground floor. Get on board. And it was a terrific experience. I canvased in places like Des Moines, Iowa and West Philadelphia. I was a member of his National Security Advisory team. I was a delegate to the convention. I was a lawyer for the campaign. And then when he was elected, I was part of his transition team and then part of his administration.

Preet Bharara: So, as we discussed, you did your job as general counsel of the Department of Defense.

Jeh Johnson: Came back to my law firm, Paul Weiss, expecting I was done, and—

Preet Bharara: A lot fewer than 11,000 lawyers.

Jeh Johnson: Right.

Preet Bharara: A few hundred.

Jeh Johnson: And then eight months later, he asked me if I would return to his administration as Secretary of Homeland Security.

Preet Bharara: How hard a job is that?

Jeh Johnson: It’s a very hard job, for a number of a reasons. The Secretary of Homeland Security is on defense. You’re always on defense. You’re on the defensive team. You’re blocking and tackling in a variety of contexts. Border security, aviation security, maritime security, cyber security, port security, the physical security of our nation’s leaders, response to natural disasters through FEMA. It’s the third largest department of our government, but by far the most decentralized, with 22 different components that were all stitched together in 2002 after 9/11. And frankly, DHS, Homeland Security, is still a work in progress.

Preet Bharara: Is it too hard—is it too unwieldy? I mean, as you just mentioned, you stitched together 22 different agencies.

Jeh Johnson: Yes. Right.

Preet Bharara: Put them under one roof, so to speak.

Jeh Johnson: Well, most of those functions existed already in various different parts of the government spread out among—

Preet Bharara: So, what was the gain in putting them together?

Jeh Johnson: The gain of putting them together was you have now one Cabinet-level official who’s looking at all the different threat screens directed against the homeland, and can allocate resources accordingly, which I think is a good thing. Where I believe DHS is a work in progress is there’s very little middle-level management. And so, the Secretary of Homeland Security has a lot of direct reports. And because it’s a job on defense, where 10,000 successes equals one failure.

Preet Bharara: Right.

Jeh Johnson: That makes the job so difficult.

Preet Bharara: Let me talk about the components. Among the components are the Secret Service.

Jeh Johnson: Yes.

Preet Bharara: What else?

Jeh Johnson: Secret Service, FEMA, Immigration, Customs Enforcement, Citizenship and Immigration Services, Customs and Border Protection, which, by the way, it itself the largest federal law enforcement agency of our government.

Preet Bharara: And maybe getting larger.

Jeh Johnson: TSA, which we all know about and love, TSA. And Homeland Security Investigations, which I’m sure you’re familiar with, which is border agents, ICE.

Preet Bharara: We worked a lot with them, yeah.

Jeh Johnson: And I could go on and on.

Preet Bharara: So, it’s a lot of agencies, a lot of responsibilities. I want to ask you, if I might, about some issues that are front and center in the country now through the lens of your experience at Homeland Security. A lot of those issues—actually, a lot of the issues you’ve worked on throughout your life, including at the Department of Defense, continue to be in the headlines and are important. So, you mentioned borders and border agents.

Jeh Johnson: Mm-hmm.

Preet Bharara: The administration, as we speak, has been spending a lot of time talking about the border. How important is border security? Is it not essential, as the president says, that we need to—

Jeh Johnson: Well, of course you have to have border security. We don’t have open borders. We’re a sovereign nation. We don’t have open borders. Now, in my judgment, there are effective, efficient ways to go about border security, particularly when you have a 2,000-mile long border across our southern border that is all sorts of different terrains. And so, how much time do you have? First point. Illegal migration is a fraction of what it used to be. The high was 17, 18 years ago, when we had 1.6 million people apprehended on our southern border. Today, and for the last several years, it’s a fraction of that. Last year, it was about 303,000, last fiscal year. My second year in office was 331,000, which was—

Preet Bharara: Should we be aspiring to zero?

Jeh Johnson: You can’t have zero. You can aspire to zero, but you can’t have zero. It’s just a fact. Just like you can’t have a crime rate of zero in a major city.

Preet Bharara: Right.

Jeh Johnson: But at the same time, you don’t want to be fatalistic. But anyway, it’s a fraction of what it used to be because of several reasons. One, the economy in Mexico is a lot better than it used to be. A bad economy is a push factor in illegal migration. Two, the investments we made in the Bush, Clinton, and Obama years in border security—and what do I mean by border security? We have built a fence in all the places where it makes sense to have a fence. The southern border consists of desert, mountains, the Rio Grande, which is a very windy river in Texas. And so, we built a fence in the places where it makes sense to have a fence.

Preet Bharara: Right. Barack Obama built a fence.

 

Jeh Johnson: The Bush, Clinton, and Obama administrations built a fence. But you have to ask yourself, how much sense does it make to build a ten-foot wall on top of a 10,000-foot mountain? If somebody’s motivated enough to climb a 10,000-foot mountain, they’re gonna figure out a way to get over the ten-foot wall.

Preet Bharara: Right. So, experts like you—I just want to sort of break it down.

Jeh Johnson: But in addition to that, surveillance vehicles, mobile surveillance. If you ask a border security expert, those are the things they tell you that they need more of. Lights, roads, vehicles. To go where the surges in illegal migration occur on our southern border. And we’ve made a lot of investments in that. The numbers are going down. There’s always more to do. But just simply building a wall for the sake of building a wall is not a wise investment in taxpayer money.

Preet Bharara: And it’s not efficient, and it’s not effective.

Jeh Johnson: No. It’s a good bumper sticker, it’s a good rallying cry, but it’s not the wisest, most effective way to invest taxpayer money in border security.

Preet Bharara: Could you tell people why we should be concerned about the idea of sending our military to guard the border in peacetime?

Jeh Johnson: Well, send the military to the border. Sounds great. But let’s step back for a minute and think about this for just maybe five seconds. There is a law against a phrase you will know, [?apose comatitis].

 

Preet Bharara: Yes.

Jeh Johnson: The U.S. military—and this is what makes the U.S. military, I think—it’s one of the reasons why our military is one of the more revered institutions in America, because we keep it cabined. The U.S. military is not allowed to serve in civilian law enforcement roles, unlike other nations, where you see military on the streets. And that has been true since 1878, since after the Civil War. And it’s part of our culture and our heritage. And so, when you talk about sending the Guard to the borders, the most they can do is support. They can’t serve in direct border security roles. You have this image of military in uniform standing at the Rio Grande with bayonets and rifles. They can’t do that. And you don’t want untrained Guard personnel engaging in the apprehension of women and children. So the most they can do is support. The bottleneck in the whole system are the immigration courts. If you really wanted to expedite the removal of people to serve as a deterrent to illegal migration, we’d be hiring way more immigration judges. The backlog— as President Trump himself has pointed out, the backlog in immigration court is huge. And there are far too few immigration judges to handle those cases. So inevitably, a lot of people come to the southern border. They, frankly, assume, are not surprised when they’re apprehended, and then go into an immigration court system that takes years to litigate.

Preet Bharara: What about the travel ban and statements that the president, current president, made about not letting in people who are Muslim, and then modifying that bit by bit over time? How bad a policy is that?

 

Jeh Johnson: Two years ago—two years ago, it would have been unheard of for the courts to be regulating and second-guessing who the president and the Secretary of Homeland Security say should be allowed to enter this country. Traditionally, the judicial branch gives a lot of deference to the executive branch when it comes to regulating our borders. But bad facts make bad laws. So when you have a candidate for president who, in December 2015, calls for a complete ban on a certain kind of immigration based on someone’s religion, you see the courts reacting to that.

Preet Bharara: How about interference with our election through—

Jeh Johnson: We could go on and on, couldn’t we? But.

Preet Bharara: There are so many things. Sorry to make you relive all of this. Should we have done more before this president took office?

 

Jeh Johnson: Everybody asks me that question.

Preet Bharara: I know.

Jeh Johnson: So, with the benefit of hindsight, and hindsight is brilliant—with the benefit of hindsight, you ask the question, well, should we have done more to deter the Russian government? Well, if you believe our intelligence chiefs, the answer has to be yes, because if you believe our intelligence leaders, they’re saying that the Russians are still at it in terms of their attempts to influence our democracy. And we’re now in the midst of the 2018 election.

Preet Bharara: And you believe them.

Jeh Johnson: Well, I have to believe them, yes. They’re our intelligence chiefs. I have to believe them.

Preet Bharara: You say you have to believe them.

Jeh Johnson: And I no longer have access to the intelligence myself, so I have to have faith in them.

Preet Bharara: The President of the United States will ask them. It’s not a question that I think one would have to ask in the past, but this president denigrates the intelligence community on a regular basis. And he doesn’t take the view that you have to believe them. And he still is in office.

Jeh Johnson: Our intelligence community—when you’re in a national security job, whether it’s Secretary of Homeland Security, Secretary of Defense, or even President of the United States, our intelligence community and their analysis are your eyes and ears. If you don’t believe them, if you don’t pay attention to it, you’re flying blind. And so, if you believe what our intelligence experts are telling us, the Russians have not been deterred. Now, getting back to your question, when somebody asked me, should we have done more, I really have to take us back to the circumstances that existed in 2016 and what we were wrestling with at the time. And at the time, we had clear intelligence by late summer/early fall that the Russians were attempting to interfere in the 2016 election. And the question becomes what do we do about it? And we were in the midst of a very heated campaign where one of the candidates, candidate Trump, was saying that the outcome was going to be rigged. The president and the national security components of our government were very concerned about jumping into this and being perceived as somehow trying to tilt the election to Hillary Clinton. Plus, there was a school of thought around the table in the Situation Room that even by making attribution and taking action, we’re playing into the Russian government hands by undermining the credibility of the democratic process. And so, we came out with the conclusion that we had to tell the American public. We had to make attribution. And that was in a state that the Director of National Intelligence and I issued on October 7, 2016.

Preet Bharara: And something else happened that day. What else happened?

Jeh Johnson: Yes, that’s correct. The statement did not get the attention that I thought it would get because it was the same day as the release of the so-called Access Hollywood video. And so, the public’s attention was all drawn to another corner of the pasture. All the press, all the cattle went off to cover sex and greed and lust, and the speculation over the next several days was Trump can’t survive this. He’s getting out. What’s gonna happen at the debate on Sunday? And there was actually very little follow-up about the statement Jim Clapper and I made until December, after the election, when the press sort of woke up and said, hey, wow, the Russians interfered with our election. I said, yes, well, we told you that two months before. And so, very often in public life—and I suspect you know this too, Preet—people will say to you, “Well, why didn’t you warn us about this?” or “Why didn’t you talk more about this?” And you say, “Well, I have talked about it.” You just—the person hasn’t covered it. And sometimes in Washington in particular, you have to say something 17, 18 times before anybody will listen.

Preet Bharara: Right. Or say something crazy.

Jeh Johnson: Or say it in very colorful terms.

Preet Bharara: How much—how important is presidential leadership in protecting the country? And the reason I ask is because you’re talking about the election, and it makes me think about the future and what’s gonna happen in the next election, and how we’re not prepared. And one thing that’s absent from all this discussion, even though you have sometimes Cabinet officials and other people in the government warning about it in high decibel tones from time to time on the Hill and elsewhere, but you don’t hear the president talking about it. And I speculate that that’s because he doesn’t want to focus any attention on future Russian interference in the election, because it put a spotlight on the past election, and it, in his mind, undermines the credibility of his election [crosstalk] [00:57:21].

Jeh Johnson: Well, I think that’s exactly right.

Preet Bharara: But does it matter, if you have responsible people like Jeh Johnson and others, if you believe that you’re there in the current government, does it matter that the president is not asserting leadership, or not?

Jeh Johnson: I’ll give you an analogy that I know you will appreciate. The government, national security components of our government, are a lot like a U.S. attorney’s office. If there’s no Senate-confirmed U.S. attorney in the chair at 1 Saint Andrews Plaza, you and I both know the work of that U.S. attorney’s office will go on. Indictments will be brought, cases will be tried, convictions will be obtained, grand jury investigations will continue. But without the strategic leadership to set priorities, to mobilize people, to motivate people, to focus overall policy direction in a certain way—and inevitably, the president is by far the most visible person in the U.S. government and in the country. Everything the president says, every word the president says, every tweet the president issues is covered intensely. And so, the president has the ability to set the agenda and focus people’s thinking in a certain way, and mobilize public opinion. And so, the Treasury Department can issue sanctions. The outgoing national security adviser can make very forceful speeches about the Russian threat. But inevitably, it comes back to the president, the commander-in-chief, to set the tone, make the visible statements that the Russian government will hear and take heed of.

Preet Bharara: Does it make you upset or angry on a personal level, given how closely you worked with the intelligence agencies, when the president integrates them?

Jeh Johnson: Well, I find it—I have a difficult time getting my head around a president, any president who denigrates institutions of his own government to the American people, whether it’s the intelligence community, the FBI, the Department of Justice. I just have a hard time understanding why that is a good idea. I came to understand when I was Secretary of Homeland Security that the intelligence community, they’re your eyes and ears. The first thing I do every morning when I came to work at 6:30, I walk in, and there’d be an intelligence book, which includes the PDB, sitting on my desk waiting for me.

Preet Bharara: Presidential daily brief.

 

Jeh Johnson: My military aide puts it there at 6:00 AM. I’m there by 6:30. It’s sitting there waiting for me in my secure office. And before I even read the newspapers, I’d read the intelligence reports to know what today’s threat streams are to the homeland. And that’ll also have the apprehension numbers on the southern border from the night before. If I had time after going through it and discussing it with my staff, I’d read the newspapers. That’s how important the intelligence is. And as I said, unless you consume it—and that was the most important part of my day.

Preet Bharara: Right.

Jeh Johnson: And unless you consume it, you’re flying blind.

Preet Bharara: How do you think John Kelly is doing as Chief of Staff?

Jeh Johnson: Well, I know John Kelly from when he was the military aide to the Secretary of Defense and I was the general counsel. And we have remained friends. When I was Secretary of Homeland Security, he was commander of U.S. Southern Command. I applauded when he became Secretary of Homeland Security. I told our workforce, you will greet him as a person of honor and integrity.

Preet Bharara: He’s a liberator.

Jeh Johnson: And I predicted that, and I think that’s what happened. The job of Chief of Staff even in normal circumstances is the most difficult job in the U.S. government.

Preet Bharara: Number one.

Jeh Johnson: Number one. The most difficult job in the U.S. government.

Preet Bharara: Do you think he handled the security clearance issue within the White House appropriately, from what you know publicly?

Jeh Johnson: No comment.

Preet Bharara: Okay. I’ll let you go to the last question. So, there’s a popular television show that I have not watched, but I’m told it’s popular, called “Designated Survivor”.

Jeh Johnson: Yes.

Preet Bharara: Could you explain to folks—

Jeh Johnson: It’s not all it’s cracked up to be.

Preet Bharara: Well, explain to folks what that is.

Jeh Johnson: It’s not nearly as glamorous as it’s made out to be on television.

Preet Bharara: Well, it depends on if things go wrong or not. And how had experience in being the designated survivor among the Cabinet.

Jeh Johnson: Two times.

Preet Bharara: Two times. Okay.

Jeh Johnson: Two times.

Preet Bharara: Tell us quickly about that, and make it glamorous.

Jeh Johnson: State of the Union, 2016. State of the Union, 2016. And then Inauguration Day, 2017. So, when everyone in the line of succession, the presidential line of succession, gathers in one place, somebody has to absent themselves in case of catastrophe. I really enjoyed going to the State of the Union addresses. You’re on the House floor. The first time I walked onto the House floor for stat of the union, I couldn’t believe I was there. Waved to Mom on CSPAN. Every branch of government there is there. The Supreme Court’s there. The chiefs are there. Everyone in Congress is there. It’s exciting.

Preet Bharara: Everyone’s got a blue tie or a red tie on.

Jeh Johnson: 2016, I got the short straw. Johnson, you’re the designated survivor, so you have to go—I had to off to my undisclosed location.

Preet Bharara: Can you tell—is it in Washington? Is it in some other state?

Jeh Johnson: It’s an undisclosed location. The nice thing about it is you get to bring the White House chef with you.

Preet Bharara: Cooks you a meal personally.

Jeh Johnson: Cooks a meal. And then when the president’s back in the residence, you get to go home.

Preet Bharara: Do you get to watch the speech on television?

Jeh Johnson: Of course, yeah.

Preet Bharara: Okay.

Jeh Johnson: Sit there on a big flat screen TV and watch it. So I figured, okay, I’ve done it once. This is it. But I got the duty a second time. And that was on Inauguration Day. On Inauguration Day, it’s fundamentally different because everyone in the cabinet is resigning. And so, I had to literally hold over into the Trump administration as a designated survivor. This time, the location was not a big secret. It was my house in Montclair, New Jersey. I just came home a day early.

Preet Bharara: How come it didn’t have to be secret then?

Jeh Johnson: Don’t ask me. I don’t know.

Preet Bharara: Okay.

Jeh Johnson: And so, I was the designated survivor again, except I held over for seven-and-a-half hours into the Trump administration, when John Kelly, my successor, was confirmed.

Preet Bharara: So, you were the Secretary of Homeland Security under Donald Trump.

Jeh Johnson: I’m Donald Trump’s first Senate-confirmed Cabinet officer. And therefore, the first Cabinet officer in his administration to resign. Now, what’s interesting is no presidency with the name Johnson beings well. And obviously, no one considered the fact that if I had become president, it would have been the result of my own failure to secure the inauguration.

Preet Bharara: How ironic.

Jeh Johnson: How ironic.

Preet Bharara: Secretary Johnson, thank you so much for being with us.

Jeh Johnson: Preet, it’s been a pleasure talking with you.

Preet Bharara: Really appreciate it. Thank you, sir.

 

Preet Bharara’s new podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts.