Preet Bharara:               From CAFE, welcome to a special year end edition of Stay Tuned With Preet. When we released our first Stay Tuned With Preet episode of the year on January 2nd, 2020, the world was a remarkably different place. We went to offices and restaurants, visited our family members, spent time with friends, actions we largely took for granted. At the beginning of the year, many still thought it was possible that Donald Trump would be removed from office for his machinations with the Ukrainians, we were just beginning to hear about a terrifying and contagious virus that was causing death and heartbreak in Wuhan China, we did not know the names Ahmaud Arbery, George Floyd, or Brianna Taylor, and we had no idea who the democratic presidential nominee would be. Today we bring you a look back at the decade that was 2020. Thank you as always for your continued support of Stay Tuned and CAFE, we couldn’t do this without you. I wish you all happy holidays and a hopefully happier 2021, and that’s coming up. Stay tuned.

***

It may not seem possible that this happened less than a year ago, but we began 2020 embroiled in the impeachment trial of President Trump over his attempts to push Ukrainian president Vladimir Zelensky into investigating Hunter Biden. My former SDNY colleague, Dan Goldman served as lead legal counsel for house Democrats, where he earned widespread praise for his disciplined questioning of 12 pivotal impeachment witnesses. Following Trump’s acquittal in early February, Dan joined me for a special episode of Stay Tuned to reflect on his experience.

Here’s another question that people have, and I’ve thought about this from the perspective of our old jobs, how do you decide on what the articles of impeachment should be? Why just two? How come it was so broad-based? I think I have some sense of what you might say. Abuse of power, obstruction of Congress, to the extent that there was a case to be made as your boss made this argument many times on the floor of bribery or extortion or some other identifiable crime that we understand to be a crime. I understand why you might not want to pick one or the other, but in our old jobs, you probably would have had two catchall counts in indictment and then you would add extortion, bribery, et cetera. Sometimes we would argue it’s good to give the jury a choice because they can reach some compromise and they can acquit on some and convict on others, that’s the thinking that goes on in prosecutor’s offices. What was the thinking here?

Dan Goldman:               Well, I don’t know all of the thinking generally. I can relay to you what my perspective was from my seat, which is that you’re absolutely right, if this were a criminal trial, we would have charged or alleged abuse of power, bribery, extortion, on down the list.

Preet Bharara:              Probably also you would have added some obstruction of justice counts from the Mueller Report. Right?

Dan Goldman:               If this were a criminal court, probably. I think generally, when you are charging a defendant, you charge the defendant with all crimes that you feel like you can prove beyond a reasonable doubt. The difference here is there are political consequences and there’s a political fallout to all of this, it doesn’t just end with the verdict. Whereas, with a prosecution, for the most part, it ends with the verdict. So you have to take into consideration where everybody else stands.

I think the general answer to your question is the Ukraine conduct was so different in kind from really anything that was included in the Mueller Report, which found that the President and the Trump campaign happily received foreign interference and utilized it but did not conspire to obtain it. Whereas here, we have… as a candidate, without the awesome powers of the presidency. Whereas here, you have someone with the awesome powers of the presidency using those powers to coerce a foreign ally and ratchet up the pressure in order to get these political investigations for his personal benefit. It felt like it jeopardized national security, jeopardized our credibility, it jeopardized the elections, there was any host of real viable, important dangers.

I think the theory was you want a consistent and uniform theme that you can not only marshal to the Senate, but there are really two juries. There was the Senate as jurors, but there’s the American public. It was important for the American public to understand the worst conduct, what it was, and to understand it as well as possible. If you start throwing in the kitchen sink, it muddies the message, it allows for a creative either lawyer or advocate on the other side to twist things or to focus on what is a personal benefit under the bribery statute, under the McDonnell case. You get into all sorts of very weedy technicalities.

The theory is that abuse of power is the highest crime, it was the founding of the constitution. It incorporated elements of bribery, elements of extortion, which were not statutory crimes at the time. So that seems to be the most serious, what we would call the top charge in prosecutor parlance, the most serious allegation. That’s what you go with, you prove that. This whole notion that, oh, you need to have a statutory crime, this was a fabrication essentially of Alan Dershowitz-

Preet Bharara:              We’re not going to spend any time on that.

Dan Goldman:               … that just doesn’t pass the last test.

Preet Bharara:              We have too much else to talk about and I think we’ve sold reasonable people on the argument. He walked back away from it as well. Then there’s this period of time where, as you already mentioned, we weren’t clear on whether or not the articles of impeachment would be transmitted or conveyed to the Senate. I don’t think it was more than a blip. People like me and others whose part-time job it is to opine on these things speculated as to strategy and everything else but ultimately, in fairly short order after the New Year, the articles were conveyed and there’s going to be a trial. Let me ask you a couple of personal questions about that. First one, did you maintain, even though a Senate trial is different from a courtroom trial, did you maintain any of the superstitions that we used to follow in the Southern District among them, did you ever get a haircut during the trial?

Dan Goldman:               I did not get a haircut during the trial.

Preet Bharara:              Was that intentional?

Dan Goldman:               I did get a haircut before the trial though, which is also a superstition.

Preet Bharara:              Can you explain the haircut issue?

Dan Goldman:               There is such a thing called the trial haircut where you get a haircut before the trial and then you do not cut your hair throughout the remainder of the trial, which can be difficult when you start to have a six-month trial.

Preet Bharara:              If the trial is long, it’s very difficult.

Dan Goldman:               I think those people get a special dispensation.

Preet Bharara:              You also don’t want to show up with everyone wondering, oh, did Dan get a haircut? You want them to focus on the fact. You did not get a haircut.

Dan Goldman:               I did not get a haircut.

***

Preet Bharara:              On the heels of impeachment came the months that changed everything. By February, confirmed cases of COVID 19 were on the rise and by early March, I had set up a remote podcasting studio in my basement. It was unclear what was to come, but our guests foresaw it being devastating for families, hospitals, workers, and businesses. In March, we lost my father-in-law to another ailment. As COVID cases continued to rise in New York, so many families faced similar pain. To make matters worse, hospitals became overcrowded and even faced shortages in PPE. I got this letter from a listener working on the front lines.

So as many of you know, last Wednesday, my father-in-law at age 91 passed away at his home outside of Chicago. As I said in the note last week that I read for the Stay Tuned audience, the worst part about it all was that my wife wasn’t able to be by his side at the end. I’ve received so many notes of kind condolences from so many of you, I’m very grateful for all of them, they really touched me. There’s one note in particular that I wanted to share with all of you however. It’s from a doctor, Hannah Dylan, who works in the ICU at a hospital in Arizona. Here’s what she wrote.

Your story about your wife not getting to be by his side was moving and got me thinking about the many Americans in that same situation whose loved ones are hospitalized in isolation awards. The most difficult thing about this pandemic for me is not the long hours or the time away from my family or the bruises on my face from the N95 mask, the most difficult thing is that my patients are without their loved ones in their struggle. I had patients on ventilators whose families are aching to be with them, to hold their hand, to whisper goodbye if that dreaded time comes. The tragedy of physical distancing means we cannot enfold one another at a time when we need it.

As your wife was not able to be by her father’s side, so many people are yearning to be with their loved ones. I wondered if you could share this small comfort with your listeners who may be in pain from the separation. In our hospital, no one is alone, not when they first arrive, not when they are joyously discharged to recover at home, and not even when they pass from this world. Before every physical exam I do, before I adjust the ventilator, or check the medications, or listen to the lungs, I take a moment to hold my patient’s hand and speak to them. Even when they are sedated, even though gowns and masks and gloves separate us, I greet them, I tell them we’re fighting for them, I remind them that they are loved.

Our nurses learned the names of wives and children and friends and speak to the patient about them while they do their work. “Your wife told me the roses are blooming,” says one nurse that she repositions the patient. “Your son will be so happy to hear that you’re awake,” says another. We stay, we are always there. We know so many of you, the families of the sick, would give anything to be there yourself, I am so profoundly sorry that you cannot be. But please take some small measure of comfort in knowing that we are doing what we can to be a family to them until we can get them back to you, they are never alone. Thank you doctor for your words of comfort and thanks to all the doctors and medical professionals who are working so hard at great risk to themselves to get us through this pandemic. For the rest of you, keep writing in, I love hearing what you have to say.

Stay tuned, there’s more coming up after this.

***

As the country dealt with the ongoing destruction, I spoke to The Atlantic writer, George packer, who wrote a controversial piece calling America a failed state because of the lack of federal direction in fighting the pandemic.

George Packer:             We are not a textbook failed state. I’ve reported in textbook failed states, I reported in Iraq during the first years of the war and after the overthrow of Saddam, Iraq was a failed state, Somalia, Sierra Leone during the civil war. In those cases, the state has stopped functioning, basic services are unavailable, crime is rampant, and people are really on their own and retreat into local units because the national government is no longer there or was never there to help and so they go back to their village or they go back to their tribe. That’s not us. Checks are going out, stimulus checks are going out, and hospitals are doing heroic work, hospital workers, subway workers are doing heroic work. So we are functioning, but what’s not functioning is our national government.

I was particularly thinking of those days, and I’m sure you remember this Preet, in the first few days of March when ordinary people suddenly began to realize that this was coming for us, we hadn’t really been told by our leaders until then it began to be clear and everyone had to make up their own mind on their own. Do I send my kid to school today? Do I take the subway today? Do I go into work today? That was when I had this shiver of remembering what it was like to be in those other countries where you have no instructions coming from the authorities, where the national government is missing or is giving you a lot of happy talk or misleading information, and this is the crucial thing, doesn’t even seem to care about the wellbeing of its citizens. That reminded me of real failed states. It’s a figurative term for us, but it has a real meaning.

There’s been a weakening of our systems that we could tolerate as long as unemployment was low, the markets were robust, we were at peace, there were no crises. Tolerate, but not be healthy, we were not healthy. I think the fundamental ill has been polarization, both economic and political. The incredible divide between Americans based on class and on partisanship and race and region such that we don’t talk any longer as if we’re all in it together.

When a crisis like this comes, it shows you this state of those systems, it shows you how the organism is doing. It turns out, and we should have known this, we did know this, that we were very unhealthy. So when you find out that government experts were silenced, ignored, that the federal government had done everything it could it seems to be sure that we did not have the stockpiles we would need for a pandemic or the plans that we would need, or the ability to test and trace, when you see what’s happening with workers who are being forced to stay at work or go back to work too soon even when they’re sick, and to work in conditions that’s going to get them sick because they have no protections, these are workers largely low-income, largely in the service sector who we all depend on, but we didn’t really think about them very much, at least a lot of us didn’t because they were invisible, meat packers are invisible, amazon warehouse workers are invisible, but now we see them and we see how little protection they have.

That’s another source of, I think, real systemic weakness, as well as a moral failing. All of that, and I could go on and on about this, is right in our face now if we’re willing to see it and not to forget it once things begin to slowly subside and return to some semblance of normality.

Preet Bharara:              Well, I guess certain crises arise and there’s either unity at the beginning or not, and those things can change and get worse or get better, but it causes me to ask the question, what kinds of crises bring us together and which drive us apart? I would not have predicted, no matter what the underlying conditions are, that something like a pandemic would cause division, because it’s not a political enemy in any way.

So for example, this may be an unfair question to you, if an asteroid were hurtling towards the earth, would Americans and citizens of the world, as you see in the movies, become united or divided? Or also you see in the movies, if there was an alien, something that was from without earth, from outside of earth, not bound up in conservative or liberal ideologies or race or class, it’s just something that’s a menace to everyone no matter who they are, how do you think we would react now and what has caused this thing, that seems to be apolitical, to become political?

George Packer:             You mean, would we be hearing about the asteroid hoax?

Preet Bharara:              Yeah, I guess.

George Packer:             I think probably. I think everything now breaks down along those lines. Everything, it doesn’t matter where it starts.

Preet Bharara:              And it doesn’t matter even if the nature of the thing is completely apolitical, it can be politicized because of the nature of political discourse.

***

As the virus rage on, workers and businesses continue to take the hit. I spoke to David Chang, founder of Momofuku Restaurant Group about how restaurants were being hung out to dry.

David Chang:                It was pretty clear to me that once this got to America, this was going to do exactly what it did to restaurants in Hong Kong and Wuhan and Seoul, Korea. Yet, simultaneously, I was like, “Well, I feel pretty confident our government is going to do a better job.” Why I believe that, I don’t know.

Preet Bharara:              Because that’s historically been the way that America has handled things, this being a notable recent exception.

David Chang:                Yeah. I thought worst-case scenario would do 90%, it would make 90% of independent restaurants closed. That was my back-of-the-envelope math, and a lot of people were like, “You’re just out of your mind, Dave. You’re always a naysayer.” I don’t want to be right about this, this is a terrible scenario. I think it will be right, I think when it’s all said and done. There was a resistance to the idea that we thought that, even I thought August-September would be the time we’d be reopening at the worst-case scenario, no one in my industry thought it would last a year plus and I don’t think any restaurants that have access to public markets can sort of survive that, so this is a problem.

When they said 25% occupancy and 50% occupancy, those are just random-ass numbers. If you are in the restaurant industry and you follow closely the health code and protocols, just let me tell you guys, the Department of Health for the most part still hasn’t updated a national or even comprehensive state level about all the do’s and don’ts of safety protocol for how to handle food in the post-COVID world, and that should tell you something. We’re just so behind across the board, no one had any idea when it began, and here’s the problem, Preet, no one on the government level has really implemented anything since the beginning of COVID crisis other than reopening restaurants at a lower capacity. What they haven’t done is… That’s okay, Preet.

If you want to force restaurants to reopen or just do takeaway and dining, that’s totally fine but we should do something that a lot of our neighbors particularly let’s say, Sidney, in Europe, and Canada have done, you’re going to continue to subsidize restaurants as they are closed or operate at limited capacity. We have done none of that, and PPP is just a Band-Aid and it doesn’t cover a lot of the other things that a restaurant does. Because of that lack of intervention, I mean, I hate to say it but I think collectively restaurants are going to be like Lehman Brothers of 2008.

Preet Bharara:              Why does that matter so much? Because of its effect on the economy, because of the effect on individual people that the government seems to be leaving behind?

David Chang:                All of that, Preet. I want people to understand that restaurants, it’s too small to fail, and that’s what I’ve been saying because you’re going to have the same repercussions as it might hit investment banks and Wall Street. All of these is connected to the real estate, and all of these real estate is levered, sometimes highly levered, so it just is going to unfold in a different way. But people should understand that there are small restaurants or the restaurant they frequent that are not chains or have corporate bodies, they’re banks. But they’re banks in two ways, one, they are banks because I think 95% of all cash flow generated by restaurants goes out the door immediately to other parts in the industry, accounting, legal services, bakeries, florist, butchers, you name it. But we don’t charge interest. Secondly, a lot of these restaurants are cultural banks. Whether they serve good food or not, these are institutions that are so central to your community and you need to understand that. We’re going to lose them unless we do something about it.

I’m terribly afraid of what’s going to happen and I have spoken to actually a fair amount of elected officials in Congress, and their hands are tied, they don’t know what to do. Some of the people that I really admire, they are asking the hard questions that I think we need to be asked because they don’t want to pump money into an industry that was this fragile to begin with, that was barely working before February 2020 in terms of the economics and rising fixed costs. So they are like, “Okay, we will do this if we can fix the foundation correctly.” And that deals with all the labor issues and a lot of the systemic problems in my business that can only truly be fixed with legislations.

So we’re sort of, I’m trying not to curse here, but we’re totally screwed because on the right side, you have Republicans, they’re like, “Screw it, restaurant industry is doing fine. Look at how fast food is doing, their revenues are up, and blah-blah-blah.” On the left, you have people that are like, “Well, we’re not going to fix something that’s already problematic, it needs to be better.” So I don’t know what to do here.

***

Preet Bharara:              Few people in David’s position had good options and they still don’t. As unemployment grew, trends emerged in who was being hit the hardest. Those most affected by COVID tended to be from low income, black, and Brown communities. With the Mitch McConnell led Senate reluctant to pass sufficiently sweeping federal aid, the inequality became even more pronounced. I spoke to Zanny Minton Beddoes editor of The Economist about the difference between the real economy on the ground and the stock market.

I think this divergence is much more pronounced now, the divergence between what’s going on in Wall Street, and what’s going otherwise in the economy. People keep reminding us that the stock market is not the economy, and yet there are politicians when the stock market is doing well, like the President, who basically uses it as a substitute for the economy. Is there any more you can say to explain to people why it is the case that the stock market is not the economy and it’s not necessarily an accurate reflection of how the economy is doing?

Zanny Minton Beddoes:       Well, the stock market is I guess, investors best guess of where the future stream of company’s profits is going to go, discounted back to today. I think that that’s affected both by the expectations of tomorrow’s profits, it’s also affected by what people think the interest rate is going to be, and thus what monetary policy is going to be. Part of what’s going on now is a reflection of the enormous amount of stimulus that’s been put in, particularly by the Federal Reserve, that’s some of what’s going on in financial markets.

Some of it is also, I think, a sense that perhaps there’s some of this rose tintedness that we’ve just been talking about. But what worries me is that I do think the gap between the two is hard to sustain. While it is true that stock markets anticipate where the economy is going to go, so it’s okay to have a gap between the awfulness of today’s statistics, which reflect what happened yesterday in the real economy and a much more optimistic stock market, I’m not at all sure that we’re going to see big improvement for the reasons we’ve just talked about, of what’s happening in the real economy. But what worries me, the scale of that gap is so big, and I think there’s some really interesting politics around that.

I think to talk about the economy doing well or to try and gauge the health of the economy from the stock market when millions and millions of people are still losing their jobs, when the unemployment rate is in double-digit figures, and when the people who’ve been hit hardest by COVID are people at the bottom of the income ladder, are people who are less skilled, who tend to be the people who work in labor-intensive sectors, who work in… They are the cleaners in the hotels, they are the waitstaff at the restaurants, they are the people who are in the front lines who have been hit the hardest, that’s a very dangerous gap I think to have in a country if you have a stock market that’s booming, and disproportionately stocks, of course, are owned by wealthier people, and you have a real economy that is hurting and the people who are hurting most in it are the less skilled, that to me is not a recipe for social harmony.

***

Preet Bharara:              Soon these inequalities became even more palpable. On May 25th, Minneapolis police officer, Derek Chauvin knelt on the neck of George Floyd, a black man, for eight minutes and 46 seconds killing him. Bystanders recorded Floyd’s brutal final moments, which set off widespread protests about police brutality and systemic racism. Americans continue to have difficult and meaningful conversations about police reform, representation, and how we should view our collective past. In July I spoke with Princeton history professor Eddie Glaude Jr, who had just released a fantastic book about James Baldwin called Begin Again: James Baldwin’s America and Its Urgent Lessons for Our Own. Glaude reflected on our likelihood to embrace real change around racial issues. With respect to the killing of George Floyd, do you think America has changed and is on a path to change?

Eddie Glaude Jr:            No. I’m not sure yet.

Preet Bharara:              You’re not saying no, you’re not sure.

Eddie Glaude Jr:            Yeah. I mean, there’s a moment where James Baldwin is interviewing Benjamin Chavis, former president of the NAACP, part of the Wilmington Ten and this is for his documentary, I heard it through The Grapevine, and there’s this startling moment where Baldwin says in effect, we’re still living under the slave codes. This is a startling provocative formulation, but he’s talking about policing in the country. So when that former police officer had his knee on George Floyd’s neck, and that look on his face with no regard for the humanity of the person underneath that knee, that was an echo, that was a through line in American history. That’s not different, that’s familiar to every parent, every black person who has any sense of awareness.

Speaker 7:                    A cop is a cop.

Speaker 8:                    Well, cops are white.

Speaker 7:                    He may be a very nice man, but I haven’t got the time to figure that out. All I know is he’s got a uniform and a gun, and I have to relate to him that way. That’s the only way to relate to him at all because one of us is going to know one of us may have to die.

Eddie Glaude Jr:            But that public lynching was the match to light to tinderbox where in that moment where it’s the possibility of change. I call it a moral reckoning, but there’s no guarantee we’re already starting to hear pivots, we’re already starting to hear it, so we’ll see.

Preet Bharara:              Are we hearing those pivots because people grow tired and they can’t focus so much on one thing at a time or it’s just a gravitational pull back to where we were before?

Eddie Glaude Jr:            It’s a combination of things. There has been a deformation of attention over the last few decades where we move quickly as we can click, so there’s that. There is the reality of a global pandemic and the incompetence of an administration that has failed at every turn to address the fact that this pandemic is killing Americans at alarming rates, what, 3 million infected and over 130,000 dead as of this conversation. So there’s that, but then there is America has a tendency to exhaust itself fairly quickly when it comes to race matters, it wants to congratulate itself fairly quickly and then expect gratitude.

Preet Bharara:              Is that why you think that some things that have happened very quickly, it takes a while to change attitudes, it takes a longer while to change culture, it takes some amount of time to change laws? But the Washington Redskins are no more, various statutes have been taken down, are those real things? Are those performative things which has become a popular word? Do they matter? How do you think about those things?

Eddie Glaude Jr:            Well, they matter. They matter but they can’t be the substance of the response. It matters for example that the Mississippi flag has been taken down with the battle flag of the Confederacy, but at the same time the governor signed that piece of legislation, he also was denying legislation, vetoing legislation that could have fundamentally helped poor black and white people in the state of Mississippi. There’s a sense in which the symbolic shifts are critical in announcing perhaps the beginnings of a shift in how we think of one another, but they can’t be the substance of our response. But oftentimes, again, given the fact that we’re such an immature nation, and I can explain what I mean by that, we’re so immature that we want to be congratulated for every gesture and then there’s the expectation that we should be grateful. Governor Cuomo could tell the protestors, “You’ve achieved what you wanted to achieve, go on home now.” Really? Really?

Preet Bharara:              It’s like a version of completely different setting, but the version of Donald Trump wearing a mask for the first time publicly and wanting to be congratulated and thanked.

Eddie Glaude Jr:            Exactly.

Preet Bharara:              And admired for doing the bare minimum that is necessary as a leader of the country where 130,000 people have died.

Eddie Glaude Jr:            Exactly. So we need much more, we need much more. We’re on the precipice, we will see what will happen.

Preet Bharara:              Is Black Lives Matter a movement like the civil rights movement of the ’60s, or is it something different?

Eddie Glaude Jr:            It’s something different. We need to think about the 1960s as a historical aberration, we tend to read it as the norm. But when you think about the history of the country, the ’60s stand out as abnormal. I want to say that Black Lives Matter is like a broad rubric under which a number of different political iterations or political organizations exist. It might be better to think of Black Lives Matter not as a movement, but as a slogan that organizes or a slogan used by different political organizations in this moment. So when we read Black Lives Matter as a movement, we want to identify leaders, we want to identify agenda, we want to identify particular persons who are engaged in a concerted organized effort to do X, Y, and Z, but what-

Preet Bharara:              Strategy.

Eddie Glaude Jr:            Exactly. But if we think about Black Lives Matter as a general sensibility that’s organizing different ways of expressing our discontent with the society as it is, now we’re looking for a little bit more complexity, we’re being a little bit more nuanced in our analysis. The analogy I would use is like Black Power. To think of Black Power as a movement is to lose sight of all the different organizations that were part of Black Power, from the Black Panther Party to the US Movement, to the Revolutionary Action Movement, to Black Studies movements that led to African American studies in universities, it’s just a variety of political organizing that’s happening underneath that rubric. So I tend to resist reading Black Lives Matter as a movement, instead, I think it’s a rubric under which different kinds of grassroots organizations are doing extraordinary work.

***

Preet Bharara:              Scholarship on race and inequality continued to pour forth from thinkers across the country. In October, writer Isabel Wilkerson released Caste: The Origins of Our Discontents, a remarkable book that compared the way hierarchies form across different societies. Wilkerson And I discussed her theories about how issues of caste interact with American racism. Do you think it’s in human DNA or social DNA for groups to want to be superior to at least one other group? Is that just an inevitability that we have to deal with, a pathogen as you might say or can we outgrow that?

Isabel Wilkerson:          I would like to believe that there may have been a time long, long, long, long ago when humans did not have access to the technologies and advancements that we now take for granted, where people were out on the frontier, out in the wilderness, out on the land, and were in danger perhaps almost every minute of their lives, that people needed to band together in order to protect themselves. But we have advanced as a species and we are now at a point where we have instant access information that others before us could not have imagined. I would like to believe that because of the advancements and because of in some ways the luxury of being able to sit and to contemplate and to read and to…

We might have a question that comes in our mind and we can instantly find the answer on our devices. We have the luxury of being able to see things differently and not to be fighting each other because there are much greater challenges that we face as a species, that the planet faces, that we should be in a position of coming together somehow to recognize the greater threats to human happiness, human health, human wealth.

The fact that we still have these health challenges that can do such damage to human beings, why do we not have a cure for cancer? Why do we not have solution to challenges of polluted waters that people are having to deal with for example in Flint, Michigan even to this day? Why are these things… We should be so advanced as a species that some of the things that make life so much more challenging for people, it seems to me that there should be a way to push back, to find ways to transcend them. I would say that one of the greatest tragedies of any caste system, any hierarchy such as those that I’m describing, is the lost potential and lost lives, of course, of people who did not have the opportunity to live out their life’s potential, whatever talents and gifts they might have had over generations.

Speaking of the United States, which is the focus of this book, for 246 years, 12 generations of people, African Americans, who were not permitted to live out whatever expertise, ever talent they might have had. If you think about those cotton fields and rice plantations and sugar plantations and all those different plantations, there were opera singers and jazz musicians and lawyers.

Preet Bharara:              You have a chapter about Satchel Paige, the pitcher, who people know, and he had a little bit of a career in the major leagues but most of it was denied to him. You have a lot of real examples like that. This concept of not wanting to be the bottom rung, I think you even have a chapter or a section entitled The Necessity of the Bottom Rung, it helps certain people perpetuate their power.

An observation you make, I think is an important one, as people think about the last election and as they think about power and voting in America now, it has to do with this observation that some liberals have which is why would some people in America, working white class or poor white citizens, voters, why would they vote against their interest? You say this in your book, “Why some people on the left keep asking, why oh why were these people voting against their own interests? The questioners on the left were unseeing and yet so certain. What they had not considered was that the people voting this way were in fact voting their interests. Maintaining the caste system as it had always been was in their interest. And some were willing to accept short term discomfort, forgo health insurance, risk contamination of the water and air, and even die to protect their longterm interest in the hierarchy as they had known it.” What is that longterm interest in a system that is not doing much for them?

Isabel Wilkerson:          Well, that’s assuming that the system is not doing much for them. By the standards or even unspoken and even maybe unrecognized when you think of unconscious bias, the unconscious messaging that everyone in a caste system receives that the less one has to fall back on in a competitive, really forbidding economy that has very little in the way of a safety net compared to other western nations, the less you have to fall back on in the way of education, wealth, job security, the more one may rely on inherited status that’s accorded to people in the dominant caste over the history of this country. That means that there’d be a greater investment. The less one has to fall back on, the greater the investment there would be in maintaining the hierarchy as it has been known because that has been the means by which, as I was saying before, the idea of standing and respect and benefit of the doubt and access to resources that are deeply known by people up and down the hierarchy.

There was a professor, Andrew Hacker, professor who used to ask his white students how much would you expect to be paid if you knew that you would have to spend the next 50 years of your life as a black person in America? How much would you want to be paid? Well, what would you think would be a fair compensation for being transferred into a different caste you might say? The students would get together and they’d figure it out. In one of his classes they got together and figured out a number, and the number that they came back with was $50 million. $1 million for every year that they would have to be black, that they would have to be African American.

So people know, they know the value that’s inherited and not of anyone’s doing. No one asked to be at any station in the caste system, you are born where you’re born and you have nothing to do with it. So this is not about blaming in any way shape or form. This is about recognition that once you see the almost unspoken hierarchy that positions some people above other people, people know that there’s a value to that and I think the students in that professor’s class get at what I’m talking about here.

And now, a word from our sponsors.

***

Preet Bharara:              You may also recall that we had an election this year. It was an election railed by unproven allegations of voter fraud by the president of the United States. As early as March, when the extent of pandemic became clear and states started encouraging absentee voting, president Trump and his allies began waging an all out war on the legitimacy of the upcoming election. In early July, I spoke with Ellen Weintraub, a commissioner on the Federal Election Commission about the facts of mail-in voting and the threat to democracy posed by the president’s repeated attacks. You have taken the president to task a little bit because our president has made statements repeatedly about how mail-in balloting would be super fraudulent.

President Trump:          I think mail-in voting is horrible, it’s corrupt.

Speaker 11:                  But you voted by mail-in in parties election last month, didn’t you?

President Trump:          Sure. I could vote by mail for the-

Speaker 11:                  How do you reconcile that?

President Trump:          Because I’m allowed to. Well, that’s called out of state. You know why I voted? Because I happen to be in the White House, and I won’t be able to go to Florida to vote. Let me just say-

Speaker 11:                  What’s the difference between mailing within state and mailing outside the state?

President Trump:          Well, there’s a big difference between somebody that’s out of state and does a ballot and everything is sealed, certified, and everything else, you see what you have to do with the certifications. You get thousands and thousands of people sitting in somebody’s living room signing ballots all over the place. No. I think that mail-in voting is a terrible thing, I think if you vote, you should go. Even the concept of early voting is not the greatest because a lot of things happen, but it’s okay. But you should go and you should vote. I think you should go and you should vote. You look at what they do where they grab thousands of mail-in ballots and they dump it. I’ll tell you what, and I don’t have to tell, you can look at the statistics, there’s a lot of dishonesty going along with mail-in ballots.

Preet Bharara:              Back in May, he tweeted, “There’s no way, zero, that mail-in ballots will be anything less than substantially fraudulent,” and I think at that time and even more recently, you have contested that view, I don’t believe in that view myself and we’ve had other people on the show talk about that. On the first of July, you tweeted, “There are 125 days until election day. The earth is still round, and there is still no basis for the conspiracy theory that #votebymail will corrupt the election.” You want to elaborate on why you’re so confident that vote by mail is okay?

Ellen Weintraub:           Look, this is going to be a challenging election, I think everybody agrees on that. Basically, we have two options, we can vote by mail or we can vote in-person, that’s really the ballgame. What we’re finding in this era of COVID-19, where people are strongly advised not to gather together in groups, particularly not in indoor settings, that voting in-person is going to be problematic. For one thing, a lot of the people who are poll workers are older and in a high risk group we’ve seen this throughout the primaries that the jurisdictions have to shut down polling places because they don’t have enough staff. So, there’s been this real consolidation of polling places, it’s been harder for people to vote in-person, there are longer lines. Some jurisdictions have handled this better than others, but we have seen a lot of long lines and a lot of complaints about people who felt that in-person voting wasn’t working very well or that they didn’t feel safe doing it.

People need to be able to vote and there’s only two ways of doing it. So to stir people up and suggest that there’s going to be fraud if more people vote by mail when no study has documented this, and people have looked into this. Even the people who are most adamant about the risk can only come up with a small number of cases over billions of votes taken over decades, so there really is no backup for this. It’s harmful to make people feel that the vote is not going to be fair, that they can’t trust it. There’s a real risk here that we’re destroying something that’s very precious.

***

Preet Bharara:              And of course, how could we forget the debates. In what was perhaps a low point in the election season, President Trump directly addressed the white supremacist group, the Proud Boys during a belligerent interruption filled first debate in late September. New York 1 commentator Errol Louis and I broke it down. There was a moment in the debate, and I know you commented on it last night, and maybe this was the worst moment in the debate, I don’t know, when Donald Trump was asked about a white supremacist group known as the Proud Boys and he gave a bizarre response.

President Trump:          Who would you like me to condemn?

Chris Wallace:               White supremacists and right-wing militia.

Joe Biden:                     Proud Boys.

President Trump:          Proud Boys, stand back and stand by.

Preet Bharara:              There were reports that people who are members of that group were overjoyed by that acknowledgement. What was your reaction to that?

Errol Louis:                   It speaks for itself, it’s breathtaking, it’s Charlottesville all over again. This is not somebody who telegraphs what he wants to do, it’s not a dog whistle it’s a foghorn. In this case, it was literally a call to arms to people to go into polling sites, disrupt the elections any which way they can. Even Trump has laid out what his strategy is, he wants to disrupt the elections any way he can. Think of it as a 90-day version of what we saw last night, disrupt the proceedings if you think you can’t win.

***

Preet Bharara:              In the midst of the election madness, we lost a legal icon and North star, Supreme Court justice Ruth Bader Ginsburg. NYU Law School professor, Melissa Murray, joined me to reflect on the notorious RBG’s unique legacy and the painful climate she left behind.

Melissa Murray:            This was a woman who had beat that cancer so many times and was such a survivor that surely she would hold on until November 3rd. She certainly understood the stakes, it was clear in her dying declaration to her granddaughter that she understood the stakes. We all, I think, just imagine that she would hold on if she could.

Preet Bharara:              I think early voting began in some places on that day, on the day she passed.

Melissa Murray:            Yes.

Preet Bharara:              Why do you think Justice Ginsburg meant so much to young women?

Melissa Murray:            I can just speak to my own experience, and I am obviously not a young woman, but my joints say otherwise. But she had this really fantastic career as a woman’s rights litigator even before she came to the court. If she had done nothing more but have that career as a litigator, that would have been a legacy of enormous consequence. But then, of course, she did go onto the court as the second woman to be a justice and she had a really fantastic career. Not necessarily in the majority all of the time, I think her most notable majority opinion was her opinion in the United States versus Virginia. But as the court moved to the right, she really became a liberal lion anchoring that liberal block on the court. Her dissents really were fierce and fabulous, they, of course, spawned this meme, the Notorious RBG, and I think that also helped route her in popular culture and gave her a new audience with young women. I know it tickled her to know that so many women of this next generation were reading her work and admiring her.

But I think there’s also this idea that I think women feel quite acutely that as you age, you really are kind of put on the shelf in American society, and we’re a society that really values youth. Here’s this woman who defied odds in almost every aspect of her career, right up until the end where in her ’80s, a time when women are literally on the disdain of society, she becomes a cultural icon, it’s just absolutely unimaginable when you think about it.

***

Preet Bharara:              As election day neared, I spoke with top democratic election lawyer, Marc Elias about the various doomsday scenarios and the likelihood of the election being decided by the Supreme Court. What are some of the things that you worry about post November 3rd, that the Trump administration, either through DHS or through the Attorney General, might do to prevent the counting, especially of these absentee ballots, that might skew the result?

Marc Elias:                    Look, my job is to worry about everything.

Preet Bharara:              Yes.

Marc Elias:                    Is to verify everything. But-

Preet Bharara:              Thank you.

Marc Elias:                    But to be honest with you, our elections are largely decentralized. The truth is… It’s interesting, I had a case in Florida that we wanted, the Trial Court got reversed at the 11th circuit. Their grounds for reversal at the 11th circuit, was that we had sued the secretary of state who is the chief elections officer, but the 11th circuit found that notwithstanding them being the chief elections officer, she was actually not empowered to run elections in Florida and that I needed to have sued all 67 counties because they’re run by counties. Now, I happen to think that we’re about seeking a monk review of that panel decision because I don’t think it’s correct, but there is a kernel of something there, which is that DHS doesn’t run elections, the Attorney General, as you know, having been US Attorney, you really didn’t have authority over the conduct of elections.

Preet Bharara:              Yes. But they can they seize authority in peculiar circumstances to interfere with an election?

Marc Elias:                    I don’t think so. Again, this is something people who are paid to worry about the worst of the worst will gain this out and figure out what the counter plans are. But my experience is that the local elections official in Leon County, Florida, runs the elections in Leon County, Florida, and oftentimes doesn’t even listen to what the state says. The states are given the constitutional power to run elections, and though Congress is given an override authority, that override authority is given to Congress, it’s not given to the president, it’s not given to the attorney general, it’s not given to DHS.

So again, I don’t want to have rose colored glasses on, I realize, as I’ve said to many people, Donald Trump is shameless, and therefore he’s dangerous. Because when you have no shame, you’re willing to do anything. But I do think that the court system and the local election officials would balk at the idea that the federal government’s ability to disrupt local election officials from doing what is their constitutional obligation and right.

Preet Bharara:              What about this issue that some people are speculating about that allows state delegations to maybe change the results of the election and throw it to the house?

Marc Elias:                    I think you mean state legislators.

Preet Bharara:              Yes.

Marc Elias:                    Again, I think that would run into really serious constitutional problems. There’s certainly a question as to whether states need to hold presidential elections. In other words, could a state simply choose to slate its own electors without holding a presidential election? An interesting question, but not one that we face, since every state currently is planning on holding an election and confident that’s going to happen. I think once they’ve held that election, I think the ability of the state legislatures to step in becomes harder. Of course, you have Democratic governors in Michigan and Wisconsin and Pennsylvania and North Carolina. So I think they’ll be chatter about that. I think it’s a legitimate thing for people to be prepared for. My main focus right now is making sure everyone registers to vote and votes, and then make sure their vote counts. That’s really where I’m spending my time and effort.

For it to be another Bush versus Gore, the election has to be exceedingly close, and it has to be in a pivotal state. So I never say never and certainly every two years I prepare for that, and we’ve had some very close elections in the Senate. We had almost close election in 2004 in Ohio, or we had not… I’m sorry, not almost. We had a close election rather in 2004, we almost won it is what I meant to say in 2004, in Ohio, and then obviously, the three states in 2016. But that’s how I think of it.

Preet Bharara:              Wait, so that’s encouraging because it seems like everyone is assuming for a fact that there’s going to be a battle that goes to the Supreme Court in the case that it’s a close election, which it may be, and you’re not so sure about that?

Marc Elias:                    No, I’m saying that in order for it to be a close enough election for the courts to make a difference, it has to be a really close election. Not close, as in like two points, close as in two tenths of a point. And that’s what I’m saying, is that ultimately Senator Kerry lost in Ohio by 80,000 votes, and that was a close election, but it was not a close enough that any particular court decision was going to change the outcome of the results. So remember, in Florida in 2000, we were talking about less than 1,000 votes at issue.

***

Preet Bharara:              The morning after election day, all the CAFE hosts tonight jumped on a special Stay Tuned call to debrief a scenario that pretty closely resembled what Weintraub and Elias had suggested might happen.

Anybody get any sleep?

Ken Wainstein:             Very little.

Elie Honig:                    I got about six hours. I made a smart decision at midnight-

Preet Bharara:              How did you do that?

Elie Honig:                    Because I made a smart decision at midnight that we weren’t going to get anything decisive or firm for at least until the next morning. So midnight to 6:00, and it was a wise decision I will say.

Anne Milgram:              I tried to do the same thing, but I couldn’t sleep well. Not surprisingly.

Ken Wainstein:             I didn’t even try. It was 3:30 before I knocked out, still couldn’t sleep.

Preet Bharara:              Were many beverages consumed?

Ken Wainstein:             Oh, massive amount.

Anne Milgram:              Did you sleep, Preet?

Preet Bharara:              I slept some. I went to bed late, I went to hear the “president” speak and see how crazy his talk was going to be, and we’ll get to that. Then my kids were up early so there’s sound and commotion. So it wasn’t a ton, but I made it to this podcast recording. Maybe we should, for a brief second, Elie, you want to tell us where we are? What is certainly the case with respect to the state at play in the various states, understanding that this is subject to change over the course of the day?

Elie Honig:                    Yeah. Subject to all the legal disclaimers, votes still being counted. At this moment, it seems that things are trending fairly solidly towards Joe Biden. Basically, all the states that we knew whether they would go red or blue have gone those way, and we had all the important states now, Michigan, Wisconsin, Pennsylvania, Arizona, Nevada, maybe to a lesser extent Georgia and North Carolina all seemed to either have Biden ahead or he’s pulling away or closing the gap quickly because what we’re seeing now is more of the mail-in ballots being counted and more of the urban area in-person votes being counted both of which really trend strongly in democrats and Biden’s favor. So I’d say at this point, it looks likely, not certain, but likely that Biden will take this.

Preet Bharara:              Well, that’s assuming no interference going forward, that’s assuming legal challenges that don’t go anywhere and all of that, right?

Elie Honig:                    That’s assuming an awful lot of things. Yeah, those would be top of the list.

***

Preet Bharara:              Shortly after Joe Biden was officially declared the winner, I spoke with New Yorker writer, Jelani Cobb, about Biden’s path to victory and what the closeness of the election says about the country we live in. Let me ask you now a very easy question, how did Joe Biden win both the nomination and then the election? Take all the time you need.

Jelani Cobb:                  So the most basic point of it was get more votes than the other guy or the other women. I think there was some things that facilitated him getting the nomination that were different than the things that facilitated him winning the election. What I mean by that is that, for lots of reasons, people seem to believe that everyone had to run as a Bernie Sanders progressive, or at least frame themselves as that. So Biden, I guess, to a certain extent, Buttigieg were really in the moderate centrist lane. There was a reasoning that if the Republican Party had gone far to the right, that gave Democrats room to go far to the left, especially on the economy and income inequality and health care, and those kinds of things. I think at the same time, there were lots of voters, particularly in Biden’s case, African American voters, who were wary of that idea.

Looking at what happened in 2016, a significant slice of at least the primary electorate was thinking, we want the most palatable candidate possible, the person that is inoffensive to the most people. Quite frankly, I think they were people who had a concern that after having nominated an African American man, and then a woman, that the Democratic Party was… That these barrier breaking candidates were going to necessarily face headwinds. I don’t agree with that reasoning necessarily, but I think that was how people saw the question.

So for Joe Biden, once South Carolina happened, it was pretty much over, and it also brought up the other question. I was in South Carolina, and one of the things that seemed to be after the case was maybe the early primaries, maybe Iowa and New Hampshire ginned up a lot of drama and a lot of cliffhanger kinds of interest, but they didn’t really reflect what the bigger electorate was like, certainly very few voters of color in either of those states. Biden, the key to his victory in the primaries was that, I think that’s why he said that in that speech.

Joe Biden:                     The African American community stood up again for me. They’ve always had my back and I have yours.

Jelani Cobb:                  I was like, okay, there you have it, that line is going to be quoted by people on the left and on the right, pretty much for the next four years, no matter what else happens.

Preet Bharara:              What do you make of this discussion that people are having in the aftermath of the election, in which people are saying, look 73 million people or some odd number voted for Trump, we need to understand the Trump voters, we need to understand how so many people could vote for a person who has these views and who says these things and acts in this particular way? That rankles some people, why don’t those voters understand or make an attempt to understand the 80 million larger number who voted for Biden, many of whom were in the cities. People in cities get demonized all the time. But in the pages of elite magazines often it’s the case that the discussion instead turns to, well, what’s going on in the middle of the country and in rural areas? What do you make of that discussion? What do we need to learn and how should we go about that?

Jelani Cobb:                  I think it’s frustrating in one regard because if you’re talking about policy analysis, or demography, or any of the things that we do any time there’s an election, to understand how a vote breaks down, how a particular slice of the electorate thinks, why people are motivated to do particular things, sure, that is no more or less pressing now than it would be in any election. But the underlying sentiment that they represent a group of people who have been wronged, or who somehow have lacked for a forum within the culture, the broader society, it’s frustrating. Because what typically happens is that’s the first part of it, the other part of it is the belief that people have paid too much attention to the issues of people of color, and that the concerns of these communities have come at the expense of paying attention to issues that relate to people of color.

Eventually, if you continue far enough in that conversation, someone says the dreaded phrase, it’s class not race, at which point the only reasonable response is to get up from the table and walk away. So it’s all of those things. We can say that there’s a particular kind of analysis that needs to happen, but I also think, and I talk to my students about this, that getting someone’s perspective does not necessarily equate agreeing that this person is right. There are objective things.

Outside of the policy things, people know my politics, it’s not hard to know my politics, as David Remnick, Editor of the New Yorker says, “Your politics should be hidden on your sleeve.” So people know where I’m coming from. But I thought I had a working understanding of the ground rules of American politics, which Trump blew up. So do we really need to understand people sympathetically how they were able to reconcile Donald Trump making fun of a disabled reporter? He did that at the very beginning of his political career.

Preet Bharara:              He did.

Jelani Cobb:                  And that people were okay with that. Is it necessary to understand how people are okay with things like firing inspector generals who are just there to prevent corruption, they’re not there to advance anyone’s interest, anyone’s partisan agenda, but to make sure that we do not have corruption and rot within the government? Just fundamental basic things. We can say we disagree about where the furniture should be placed in the house or what kind of furniture we should have or even if we should have this house, we can debate all those things what we can’t debate is whether or not you get to knock down a load bearing wall. So while you see the person gleefully kicking holes in the wall, the reaction should be we have to stop this from happening as opposed to well, we have to understand why people want to collapse this wall.

Preet Bharara:              Right. I guess in politics, the thinking probably goes for the pragmatic people, as you said at the beginning very wisely, how did Joe Biden win? He got more votes, you got to get more votes than the other guy. If the enterprise in politics is getting more votes than the other guy, you got to figure out why so many votes went to the other guy last time so you can steal some of them back.

Jelani Cobb:                  Sure. Yeah, I think that that’s fine. If we’re framing this in the sense of the analysis that happens anytime you have an election, but I think the bigger cultural point is not about that.

***

Preet Bharara:              So here we are, we’re thankfully saying goodbye to President Trump’s scandals and incompetence, we’re in the midst of getting vaccinated, we’re continuing to grapple with inequality in all its forms, and we’re on the precipice of a Biden-Harris administration. For those of you who have lost loved ones this year to COVID-19 or any other tragedy, we send support and love your way. For those of you who have written to us with your questions, your stories, your activism, and your ideas, we thank you for your engagement and your passion. We’re ready for big things at CAFE in 2021, new shows, new contributors, and new ways to make sense of what happens at the intersection of law and politics. In the meantime, have a happy new year, keep the faith, and stay tuned.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen, every positive review helps new listeners find the show. Send me your questions about news, politics, and justice, tweet them to me @PreetBharara with the #AskPreet, or you can call and leave me a message at (669) 247-7338, that’s (669) 247-PREET. Or you can send an email to staytuned@cafe.com.

Stay Tuned is presented by CAFE Studios. Your host is Preet Bharara, the executive producer is Tamara Sepper. The senior producer is Adam Waller, the technical director is David Tatasciore, and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. I’m Preet Bharara, Stay Tuned.