Dear Stay Tuned Listener,

This week’s episode of Stay Tuned features Bryan Stevenson, a civil rights attorney who represents prisoners on death row. Described as “America’s Nelson Mandela,” his Equal Justice Initiative, a non-profit law firm based in Alabama, is dedicated to challenging racial injustice and ending mass incarceration. Stevenson is also the author of the New York Times best-selling memoir Just Mercy: A Story of Justice and Redemption.

In the interview, Stevenson shares stories from his days as a young lawyer on the battlefield, his early childhood experiences that have shapes the life he’s leading, and he also addresses current issues at the intersection of law, justice, and politics, including judicial elections and nomination process, the conditions in our prisons, and controversies involving Gov. Northam in Virginia and Jussie Smollette.  

The episode begins with analysis of Michael Cohen’s testimony before the House Oversight Committee.  Preet assesses Cohen as a witness, the Committee’s performance, and the legal and political implications for President Trump.

You can listen to today’s episode on the player of your choice or here. References and supplemental material to the episode are below.

As always, tweet your questions to @PreetBharara with the hashtag #askpreet, email staytuned@cafe.com, or call 699-247-7338 and leave a voicemail.

Stay Tuned for more,
The CAFE Team 

P.S. We hope to see you in New York for a live taping of Stay Tuned on March 19th to celebrate the launch of Preet’s book. Get tickets here.

INTERVIEW HIGHLIGHTS

Would Brown vs. Board of Education be decided in the same way today?

I’m actually worried that we couldn’t win Brown vs Board of Education today. I really am. I think we’ve gotten to the point where if you asked some members of the court to do something disruptive, something difficult on behalf of people who are disfavored, who are not politically empowered, who are marginalized, who are disliked, the court might not do it. Not because the law doesn’t require it, but because the political consequences would be too great. I know that’s true in state courts where we are electing judges. I’d hate to come to believe that’s also true in our federal courts, but I’m worried about that.

On maintaining hope in the face of injustic

Hopelessness is the enemy of justice. And justice prevails where hopelessness persists. I think hope is our superpower. If I’ve had any ability to do anything it’s because I’ve been willing to hope for things that haven’t been seen yet. And I’m gonna continue with that because I almost persuade myself, I have persuaded myself that you’re either hopeful or you’re the problem. There’s no real middle ground. We have to keep pushing, keep wanting more and more. More mercy, more compassion, more justice, more opportunity. That’s what animates my work

REFERENCES AND SUPPLEMENTAL MATERIAL

Q&A

• Michael Cohen’s prepared opening statement before the House Oversight Committee
• Michael Cohen’s testimony before the House Oversight Committee
• An article from the Washington Post about Representative Matt Gaetz’s tweet and the Florida Bar’s investigation  
• Rule 35 – Correcting or reducing a sentence

Stevenson & EJI

• Stevenson’s book, Just Mercy
• The movie adaptation of Just Mercy (2020)
• The Equal Justice Initiative
• EJI’s The Legacy Museum: From Enslavement to Mass Incarceration
• EJI’s The National Memorial for Peace and Justice (and efforts to create memorials in Berlin and South Africa)

Supreme Court

• Brown v. Board of Education, 1954
• SCOTUS decisions concerning the death penalty: Furman v. Georgia (1972), Gregg v. Georgia (1976), McCleskey v. Kemp (1987)
• An article in the Washington Post on the McCleskey opinion and dissent (“fear of too much justice”)
• A 1994 paper by David Baldus and co. addressing to the “inevitability doctrine”
• SCOTUS decisions concerning life sentences without parole for juveniles: Graham v. Florida (2010), Miller v. Alabama (2010), Sullivan v. Florida (2010), Jackson v. Hobbes (2012)
• The SCOTUS decision that struck down the death penalty for juveniles: Roper v. Simmons, 2005 (and an article from the NYT analyzing the court opinion)
• The SCOTUS decision that struck down the death penalty for mentally ill folks: Atkins v. Virginia, 2002
• The SCOTUS decision that justified Japanese internment: Korematsu v. United States ,1944
• An article in the Washington Post on court nominees refusing to answer questions about Brown v. Board of Education
• The Scottsboro Boys case and the ultimate pardon of the wrongfully accused

Congress

• An article from the Asia Society on the history of Asian exclusion acts
• History of The Klu Klux Klan Act

Constitutional Amendments

• Eighth Amendment
• Thirteenth Amendment

Alabama

• An article in the New Yorker about Alabama judges’ power to “override” jury rulings and impose the death penalty
• Articles in Slate about Alabama’s Confederate Memorial Day and Robert E. Lee Day
• Articles in the Washington Post about Goodloe Sutton’s editorial calling for the return of the KKK and his subsequent resignation and replacement. Plus, Senator Jones and Representative Sewell’s reactions to Sutton

Judicial elections

• An article by Adam Liptak in the NYT on judicial elections, and analysis from The Brennan Center on how judicial elections impact sentencing
• A 2012 article from the Yale Law Journal, “The Origins of the Elected Prosecutor”
• Recently elected District Attorneys in Philadelphia, Chicago, Brooklyn, Baltimore

Relevant news

• An article from the NYT about Virginia officials wearing blackface in the past
• A timeline from the NYT on Jussie Smollett, plus an update on his role on the TV series, “Empire.”

YOUR QUESTIONS, CONTINUED

ANSWER: The Attorney General of New York is Leticia James. Cyrus Vance is the District Attorney in Manhattan.

The DOJ helps clarify a key difference between U.S. Attorneys and other prosecutors: “The U.S. Attorney’s Office represents the United States in federal cases, meaning they arise from federal law created by Congress. These cases are heard in federal courthouses throughout the country. State and local prosecutors (whether the district attorney, county/city prosecutor, or the state attorney general’s office), by contrast, represent the state for cases arising under state law, created by each state legislature. Occasionally, federal and state law may overlap in a certain area, allowing both federal and state prosecutors to pursue the case.”

Robert Mueller seems to be interchangeably referred to as the Special Counsel, Special Prosecutor or Independent Counsel. Which, if any, is correct and do those titles actually mean anything different to each other? @PreetBharara #askpreet

ANSWER: Axios has a clear explanation of the difference between the terms.  For a more detailed explanation, check out this Congressional Research Service report.  

THIS WEEK ON CAFE INSIDER

Here’s a couple of takeaways from this week’s episode of CAFE Insider:

• Can Mueller submit his report to the Attorney General if there still pending litigation? The applicable regulation that governs Special Counsels, 28 CFR § 600.8 (c), states, in part, that “[a]t the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidentialreport.” (emphasis added) It is unclear what the word “work” encompasses, but it is fair to assume that Mueller will submit his report before all the litigation is concluded. Mueller has made the core decisions on whom to charge and with what and has staffed the various investigations with DOJ lawyers or Assistant U.S. Attorneys in the D.C. office, making the handoff of cases easier. So even if the Special Counsel’s work may be coming to a close, the cases arising out of his investigation will live on. Trials take a long time, as does the motion practice leading up to a trial. In Roger Stone’s case, it could take a year or more before the trial even begins.
  
  • What information is the Attorney General required to provide to Congress?Under 28 CFR § 600.9(a)(3), the Attorney General must “notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with . . . description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” That means that if the Attorney General did not overrule Mueller on any point, no information has to be provided to Congress. If, for example, Mueller writes in his report that the office found sufficient evidence against Trump to present to a grand jury but did not bring charges due to the OLC memo that guides against indicting a sitting president, Attorney General Bill Barr could legally keep this information confidential, unless he disagrees with Mueller on that point.

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