Preet Bharara:

That’s Cyrus Vance Jr. He’s been the Manhattan District Attorney since 2010. Vance has overseen a decade of profound change for Manhattan. He’s grappled with whether to prosecute minor offenses, like marijuana possession and turnstile jumping, engaged in long-standing debates over his Office’s jurisdiction, and adjusted to the constancy of contemporary press coverage.

Vance’s office has also received both praise and criticism for a number of high-profile sex crimes case involving movie mogul Harvey Weinstein, former IMF managing director Dominique Strauss-Kahn, and disgraced gynecologist Robert Hadden. And Vance has worked closely with my former office, the U.S. Attorney’s Office for the Southern District of New York, including during my tenure. 

Vance joins me this week for a special two-part episode. In Part I, we discuss the philosophy of prosecution, the peculiarities of law enforcement in New York City, and his thoughts on the Harvey Weinstein case. That’s coming up… Stay Tuned.

Cyrus Vance, thanks so much for being on the show.

Cyrus Vance:

Well Preet, good to talk to you again and thanks for inviting me.

Preet Bharara:

I’m sorry it’s not in person. I long envisioned that you and I would one day do this podcast and we’d talk for a long time and then maybe have refreshments afterwards, but it’s not to be.

Cyrus Vance:

Not yet, but soon enough I hope.

Preet Bharara:

How are you doing? How’s your family? I think you said before we got on air that everyone’s doing okay?

Cyrus Vance:

Yeah. My family, thank God, is healthy and everyone is safe, and we feel very fortunate because of that.

Preet Bharara:

Do you find this peculiar at all, that your former colleague–we’re still friends–the former US Attorney sitting down and questioning for an extended period the sitting District Attorney in Manhattan? Is it odd for you at all?

Cyrus Vance:

No, it’s not odd for me at all, but I think our relationship was out of the ordinary for the respective office holders of the Manhattan DA and the Southern District of New York, that those offices-

Preet Bharara:

Oh, what do you mean by that? Maybe we should explain to folks a couple of things.

Cyrus Vance:

Yeah.

Preet Bharara:

Then we’ll talk about the relationship. New York City, by my count, has nine relevant prosecutors, right? There’s not one. There are five district attorneys. There’s also the Office of the Special Narcotics Prosecutor, handles just narcotics cases. There’s not one but two US Attorneys’ Offices, the Southern District of New York and the Eastern District of New York. So that’s six, seven, eight. And then there’s also the Attorney General for the state of New York who is able to bring cases from time to time in the city also.

Preet Bharara:

What do you make of the fact, having done this for a long time, of so many prosecutors with overlapping jurisdiction, especially SDNY and the Manhattan DA’s Office, what does that do for public safety and law enforcement? Does it get confusing and …

Cyrus Vance:

Well, I think it does get confusing, but overall, I think the public benefits. That is to say you have some very smart people. It’s seated in the same physical city and its surrounding jurisdiction, and all taking their job seriously. So there’s a lot of brain power and a lot of manpower focused on public safety. And combined, at least in the state system with the NYPD, a 36,000 person police force, independent of all the other police-related offices, I think the public safety quotient is high. But it’s a competitive world. And New York is a competitive city in a competitive world. And lawyers are competitive people. And …

Preet Bharara:

Even in law enforcement, even public service. People sometimes don’t always appreciate this.

Cyrus Vance:

Yes.

Preet Bharara:

Probably the most intense competition was between the two US Attorney’s Offices. But we know we all competed. I know it sounds odd when we’re all on the same side of public safety. Explain how that competition works.

Cyrus Vance:

Well, long ago when there were only state prosecutors and not US Attorney’s Offices; the local prosecutor had jurisdiction over almost all crimes. But over the last, you tell me, Preet, 50 years or so–and of course the stories have been around before that– the federal criminal laws have expanded a great deal and overlap in many of the crimes that they identify with state crimes. Look at fraud, cyber crime, even terrorism, which our office has prosecuted a number of times, that’s an overlapping jurisdiction, gangs, even sexual assaults, some are prosecuted federally and many state. But this wasn’t the case several generations ago, but is the case now and has been, I think, for the last 25 years, at least.

I remember when I was a young assistant in the Manhattan DA’s Office in the 1980s. And we got into jurisdictional squabbles with Andy Maloney, who was then at that time, the US attorney for the Eastern District of New York. Fast-forward to our time together over the last eight years or so, and that competitiveness still existed. The breadth of the federal statutes was even broader. And the ability of the FBI and the US attorneys to handle many of the cases that had traditionally been handled by state prosecutors exploded.

What I liked most about our relationship was historically our two offices, the Manhattan District Attorney’s Office and the US Attorney’s Office for the Southern District of New York had a sort of an open competitiveness–sometimes warfare–over who had what case. And I think that resulted at times with behavior that was not consistent with the best practice of law enforcement, where owning the case was more important than solving the case in the best way for the public. And …

Preet Bharara:

Yeah, we should explain to people that our offices, the Southern District main office in Lower Manhattan is just a few yards from the Manhattan DA’s Office. And the courthouses, the respective main courthouses are literally next door to each other.

Cyrus Vance:

So over the years, I think that competitiveness got out of hand between the two offices–my opinion. But what I enjoyed very much about our time together as well, and I’m enjoying it with your successor, Geoffrey Berman, is that I think we both felt that we were not going to let territorialism get in the way of the best result for the case. There were times when our investigations absolutely overlapped. And I think in our two cases, your office and mine, you and I, if we had a problem we talked about it, had an open and frank discussion and figured out what was the best way to go forward.

Sometimes the cases went federal. Sometimes we prosecuted a portion of the case and you prosecuted another. But I do think that the assistance in both offices, I believe, knew that the principals in those offices were not really interested in hearing about the fights over who has the case, but working through.

Preet Bharara:

Yeah. So people should understand that the competition continued. I had pride in my office. You had pride in your office. And we did have disagreements that we had to work through, but we also never came to a time that I think some of our predecessors did when they weren’t on speaking terms. There were times when some of our predecessors wouldn’t even get on the phone with each other, I believe. You and I had a regular date, usually at The Odeon, which I don’t know how The Odeon is doing now. Great fries.

Cyrus Vance:

It’s doing take out.

Preet Bharara:

Oh, it is? Good. And Forlini’s, which is where …

Cyrus Vance:

I should think.

Preet Bharara:

I think I first met you with Bob Morgenthau. The three of us had lunch together when you were the incoming District Attorney, just having been elected. And I had been the US Attorney for about five minutes.

Cyrus Vance:

Yeah.

Preet Bharara:

I remember it was very intimidating. It was very intimidating to eat at the booth in the back of Forlini’s because the booth actually was dedicated to the already-legendary Bob Morgenthau. And I’m the new US Attorney who has the job four decades after Morgenthau. And not only am I sitting in his favorite restaurant where he’s known to everyone, but it’s actually a booth dedicated to him. I don’t know if I ever told you that it was a somewhat intimidating lunch.

Cyrus Vance:

Well, he could also be an intimidating guy. I think he had a warm soul, but he had a deep, booming voice and could sometimes be a little imperious.

Preet Bharara:

What’s the right relationship between the District Attorney’s Office and the relevant police department? Who does what, and why, and how do you resolve disputes, if there are any?

Cyrus Vance:

Well, the relationship between the police and the prosecutor’s office has to be two things. It has to be respectful and collegial because the police, the NYPD are responsible for the overwhelming majority of the cases that our office prosecutes, not so much in the white collar law area, but absolutely in street crime and very serious street crime–rape, robbery, murder–and the vast number, at least most at the time, of misdemeanor cases, some of which themselves were very serious. There’s no such thing as a case that’s not serious if you’re the defendant in it, or if you’re the victim in it.

So you need to be collegial to deal with our office being able to make an intelligent assessment of the case when it came into what’s called our complaint room to be analyzed, whatever charge you filed. But you also had to be objective and you have a responsibility as a prosecutor and Assistant District Attorney when police come to you with a case to make sure that as certainly as best you can, on the limited time constraints that are available to you, if someone is in custody, to make a judgment whether or not the case should be commenced. And that requires objectivity.

And I will say that both as a young Assistant DA in the 1980s, I remember many times when police officers came in with a case, could have been a gun possession. It could have been any number of cases where I had to basically say, “I’m sorry. This is not a case I’m going to write up at this time. More needs to be done.” If I had questions about whether or not I was getting a candid assessment of the facts predicating a search of a car or search of a person for a gun, I had to make judgment calls as to whether those constitutional violations, if they were violations, made it inappropriate for me to bring the case in the first instance.

But here’s what I think has happened most. And I think our office is one of the state offices that I think that exemplifies it, is historically the relationship between a prosecutor and the police department has been that the police investigated and the prosecutors prosecuted.

Preet Bharara:

Law and order.

Cyrus Vance:

Law and order. Since the 1930s, when Tom Dewey, who folks know as almost won the presidency and was governor of New York, and before that was the Manhattan District Attorney started essentially the modern investigative bureau in the DA’s Office using forensic investigators and accountants to supplement the investigations done by the Assistant District Attorneys. The course of the office has always been to focus a great deal of its effort. We have a hundred lawyers, roughly, who are working in the investigation division.

And when we investigate cases and take a lead or a partnership role in building the case, from time to time that’s not what the police expect or want. So from time to time, there’s conflict in the making of a case. But I will say that, by and large, overwhelmingly, our ability to work collaboratively, even when we are co-investigators with the NYPD or another agency, and there are many in New York, not just prosecutors agencies, but think of all the law enforcement agencies, we play a major role, not just in indicting and trying the case, but actually in identifying whether a crime has been committed and building the investigation leading to indictment.

Preet Bharara:

Is it sometimes the case you think, whether in your experience or you’ve heard, that if a detective cares very deeply about a charge being brought and about the value of the case and presses hard and has a great intensity of feeling, does that affect the prosecutor’s decision to go forward and maybe be more aggressive than they would otherwise be? Or do they pay that intensity no mind?

Cyrus Vance:

I think I would say generally speaking and in my opinion that a detective who is assertive or a patrol officer who is assertive, and let’s just say aggressive, is not a negative, but in fact it can be a positive, that the police officer cares about the case, maybe feels that it’s very important in his or her mind that it be brought. That’s not a bad thing, but again, it has to be balanced with an arms’ length assessment of the facts of the case and a willingness as happens from time to time to initially commence a case. But then, upon learning later facts that were not available at the inception of the case, decide to terminate the case, which can also cause conflict between a prosecutor’s office and a police department or another law enforcement agency. It is ultimately, I think this, I would say the same thing. My guess is with the FBI and the federal prosecutors is they are close allies. That’s the way it should be, but they are also separate and independent and have to maintain the integrity of their decision making by that independence.

Now, when you have a real aggressive police officer and you are a newly minted Assistant District Attorney, it’s tough to push back when the sergeant picks up the phone and calls you in the complaint room because his patrol officer says, “You’re not going to prosecute this case.” And that’s the benefit of the wisdom and experience of the senior lawyers in the office, who are also sitting in the complaint room and helping evaluate the cases, felonies, and misdemeanors to give support to the assistants’ concerns and to essentially train the younger lawyers on what to identify when you should be concerned enough about an issue to push back on the police department.

Preet Bharara:

What makes a good prosecutor? What makes a bad prosecutor?

Cyrus Vance:

I think that the answer to that question in some sense has shifted in the last 15 years. And by that, I mean Preet that when I was in the office in the 1980s, and I don’t mean to dwell on the past, but violent crime was at such levels in New York City. And I will just say the mindset of police and prosecutors was, “How do we manage violent crime?” when we had at the time 700 homicides a year in Manhattan and 2,300 murders a year in the city. You were really bailing a boat out where the water kept flooding in over the side of the boat.

I think the attitude of prosecutors then was different than it is today. Since I became DA 11 years ago now, I came in having been a defense lawyer for 20 years in private practice, doing white collar and all kinds of litigation around the country. And I understood from my experience as a defense lawyer that there were aspects of being a prosecutor that we needed to focus on more. And I don’t mean to suggest that I’m the only person who had this sense. But I was aware watching the innocence movement that a prosecutor’s office had to be answerable in some way to the public about the serious issue of people being wrongfully convicted of crimes.

So in 2010, after speaking with a Dallas DA, who had the first, I think, the first conviction integrity program in the country, we opened a conviction integrity program in Manhattan to review claims that would be made by defendants, by their counsel, by information that came to us from other sources to re-investigate cases where, whether that it was before trial or after a conviction. And that was I think, a good example of the shift in one sense the …

And that was, I think, a good example of the shift, in one sense, of prosecutor’s offices, that it became objective, apparent, and important as the countries itself became focused on criminal justice reform and changes that needed to be made in the system that prosecutors lead the way, not be pushed or pulled along.

Preet Bharara:

Right. And so I get all that, but I guess my more fundamental question is given all of that, what is it that you and your colleagues look for in applicants? What qualities are you looking for when people are coming out of law school and trying to get a job in the Manhattan DA’s office? What are the attributes that you think will lead them to be the kind of prosecutor that you’re describing?

Cyrus Vance:

Well, I think there’s certain aspects which have to be given. One, that the applicant is a good writer, because so much of our job is in written communication. And we obviously look at how the applicant did in law school, but that’s not predetermined. Ultimately, I interview everybody who’s hired by the office, and we hire probably 50 to 60 people a year. And do probably 1000 interviews overall. Not me, but the rest of the office. And I’m looking for someone, we’re looking for someone, who we think has got their head screwed on right, they’re smart, they write well, their work experience before coming to the office, or if they’re just coming straight out of law school, what they’ve done with themselves in their lives before coming to our office matters.

We’re really looking, ultimately, for people with good judgment, who are going to work hard, who are going to support their teammates in the office, a willingness to roll up their sleeves and help whatever needs to be done whenever, that are aggressive. We want prosecutors to be forward leading, not backward leaning. But ultimately, to be thoughtful and have enough judgment to be able to press the pause button if they have a question about whether what they’re seeing or doing is right. So you’re looking for judgment, intelligence, the ability to work with people, maybe that’s a bit about personality.

Preet Bharara:

Right. I always say, I tell my law students that are at NYU, there are a lot of things that law school teaches you, but unless you’ve done a particular kind of clinic, it doesn’t teach you how to coax a witness to testify. It doesn’t teach you how to make a nervous witness comfortable in testifying. It doesn’t teach you a whole hell of a lot about strategy and tactics at trial. And it doesn’t teach you much of anything at all about investigation.

Cyrus Vance:

Right.

Preet Bharara:

And it becomes a hard thing. And we have the same issue. I interviewed everybody who came in before they were hired also. I think it’s something like 180 people I hired, and obviously interviewed many more than that. It’s difficult, depending on what their prior experience has been, to see if they’re going to be the kind of person that in all cases will do their job with integrity when no one is watching. That’s the biggest issue is you have a ton of young people, we have a ton of young people, who have never had that kind of responsibility before. They are supervised, we like to think, right? And you have Bureau Chiefs and we had Unit Chiefs. But a lot of what they do is never scrutinized on a micro level because there’s no time. Nobody has the time. And so you need to trust that when they’re making decisions that are never scrutinized by someone above them, that they’re making the right decisions. And when they’re not sure, they’re consulting. And it’s sometimes hard to find how to know that about people before they’ve done the job.

Cyrus Vance:

Yeah, you really can’t predict, although you do have someone come in and you think this person’s just a winner. I mean, they’re smart and they seem to be all together and hopefully they are. But what you need to develop good prosecutors, to have those skills you’re talking about, is you need good training in the office. And I think obviously they get that in your office. And I like to believe they get that in mine. And as you call it, supervision.

Preet Bharara:

So what people spend a lot of time worrying about, and you touched upon this a second ago, and what the movies are often about and TV shows are often about, is the over-aggressive cop, the over-aggressive prosecutor, the one with the itchy trigger finger who wants to charge and then maybe will overcharge. And that is a big problem. And it’s maybe the worst problem. But I make this point in the book I wrote also, and I would make it to my office, and you’ve made a mention of it, there’s the opposite problem too. The opposite problem is you have the gun shy prosecutor who over-investigates even after there’s enough to charge. How much do you see that problem? Or do the TV shows have it right and the major problem is over-aggressiveness, as opposed to under-aggressiveness? Because if you’re under-aggressive, then that’s a person out there who’s continuing to commit crimes, public safety is jeopardized, and a decision not to do something is also a decision. Isn’t it?

Cyrus Vance:

Yes. A decision not to do something is a decision. And I would say, sitting in my chair, sometimes the hardest decision is to know when not to prosecute. I don’t think that’s the spirit of your question, but I think in terms of running an agency, you and I both have made decisions where we declined to prosecute when–

Preet Bharara:

We’ll talk about some of those. And I spent a lot of time being asked those questions too, and it’s sort of a difficult thing. But I just want to know if you agree with me that there’s also an issue of not going forward sometimes.

Cyrus Vance:

Yes. So there is. There absolutely is. And when I’m briefed on cases and … One value of having been a practicing lawyer for so many years, and trial lawyer, is that I like to think that when people are talking to me about their cases and about their decision making, I have a pretty good antenna as to how this thing might shape up if it was, in fact, investigated fully. So of course you’re going to run into prosecutors who are gun shy. I don’t see that too much, is what I would say though. I don’t find that to be a big problem.

Preet Bharara:

I want to ask some more questions for general philosophically about how you see prosecution. Maybe that’ll set it up for a discussion of particular matters. This is a question I’ve struggled with a lot, and I don’t know how much the public understands this point. So I am assuming that you have a very high conviction rate in the Manhattan DA’s office. Do you know off hand what it is?

Cyrus Vance:

Well, I think that if you’re talking about overall conviction rate of cases with pleas, it’s going to be 92 and above percent. If you’re talking about-

Preet Bharara:

That’s the standard. That seems to be a standard, I think, in our office. I don’t know the exact number. I didn’t pay a lot of attention to that. I know it’s very, very high.

Cyrus Vance:

Yeah. And it’s true. But a good number of those cases are resolved by way of plea, which-

Preet Bharara:

Right. Probably most of them.

Cyrus Vance:

Just the way the system works when you’re a high volume system like we are.

Preet Bharara:

Right. And so I ask this question generally, and sometimes of my students: “What you would think about a prosecutor’s office that had a 100% conviction rate?” And one of the things you might think about such an office is they only bring easy cases, they’re under-aggressive, and they only bring cases that are aimed at the low hanging fruit. Because what kind of office is so good that it wins every single case that it brings? On the other hand, if you had a DA’s office that had a 25% conviction rate, you would ask different questions. You would say, “Well, they’re overcharging. They’re ruining people’s lives through investigations. They don’t understand what the law is.” Maybe there’s some other explanation, but you would not like an office, I’m guessing, at least this is my view, I don’t want to speak for you, that at 100% conviction rate, nor would you like an office that has a 25% conviction rate. So then I will ask you the impossible question. If you agree with those premises, what’s the ideal conviction rate for an office? And do you ever think about that?

Cyrus Vance:

Well, I certainly have, I’ve pondered not that precise question, but the question of percentages in convictions and acquittals. I think that we have a criminal justice system which, for good or bad, and I think some would be critical of it, there is so much volume, particularly in the state system, unlike, I think, the federal system. When I came in, we had 110,000 cases in that year. You simply can’t investigate to the T every one of those 110,000 cases. It’s impossible. Nor can the judges necessarily process 110,000 trials. So the reality is that the parties on both sides, prosecutors, defense lawyers, and judges who take pleas, do accept often lesser resolutions of cases in the service of trying to keep the overall system flowing and operating, functioning with some speed and regularity.

So that means to me 90%, 85%, I think that’s a conviction rate that I wouldn’t necessarily believe that it was a prosecutor’s office that was gun shy. And I’ve never heard of a prosecutor’s office that has a 100% conviction rate. If I look at our conviction rates–and it varies–I would say that for felony trials, the conviction rate in my memory is probably going to be somewhere between after trial 75% to 85%, somewhere in that range. And for misdemeanor cases, slightly lower. And there’s lots of reasons for that, reasons why that is lower. But part of it is resources. Part of it is that in the state cases, there just may not be the ability to work up low-level misdemeanor cases and get cooperation, for example, with victims of assault or even domestic violence. I think there’s some challenges we have in the state system that don’t translate to the federal system.

Preet Bharara:

Well look, and the federal system, in some ways, we’re a lot more selective and have the luxury of being more selective and conducting long term investigations and maybe are more able not to bring a case if we don’t think it’s there. Whereas, I’m guessing for certain kinds of street crime where there’s an actual victim and maybe the evidence is not so strong, there’s a duty to proceed with the case, which leads me to my next question, which is, again, a very difficult one that I’ve struggled with. We’ve talked about overall conviction rates, but with respect to any particular case, the people versus Joe Smith, how important is the consideration of likelihood of success at the moment you decide to charge? I spent some time in my book talking about this. And either of those may be at variance with some other folk’s views that it’s not always the case that even if you’re unlikely to get a conviction that you don’t proceed. What do you think of that question? How important is it-

Cyrus Vance:

I think it is responsible to assess, to have the likelihood of a conviction as part of your assessment. The way I would look at it, Preet, is that, first of all, assuming you have all the relevant facts, do you believe a crime was committed? If you don’t believe a crime was committed, then I think you stop there. If you do believe-

Preet Bharara:

So that’s fundamental, that there has to be-

Cyrus Vance:

Yeah. And that the person did it.

Preet Bharara:

Right. A subjective belief that they absolutely did it. And then it’s a separate question in your mind, and it is in mine also, can you prove it based on the rules of evidence and your witnesses and everything else?

Cyrus Vance:

And I would say that I think our philosophy, my philosophy, is that if we believe a crime is committed and we believe that we can prevail at trial, that oftentimes there’s risk anytime you go to take a case to 12 jurors. And in our system, you have to have a unanimous jury and proof beyond a reasonable doubt for every element of every crime charge and indictment. That’s the highest burden there is in our court system to meet. Maybe there’s another burden out there that I just don’t know of in the federal system.

But the second question is if you believe you have the evidence to convict, then I think that investigation should go forward. If you believe there is inadequate evidence to convict, then even though you think a crime may have been committed, you can’t proceed forward. Let me give you an example. Someone may be arrested for possession of a loaded gun in their car. And the issue is not whether or not they actually possess the loaded gun. The issue is whether or not the circumstances under which they were stopped and questioned and the car searched was lawful constitutionally or not. And if you feel in a case with those facts that you will not be able to sustain your burden before the court in proving that the search was lawful and proper and that there’s going to be a fourth amendment violation, then you don’t go forward with that case. You don’t take it necessarily to court just to know that you’re going to have a judge dismiss it or if you took it to court and got a conviction that the appellate court would dismiss it.

Preet Bharara:

But sometimes it’s not a binary choice. You have a quantum of evidence. Sometimes there are cases that are overwhelming. You have 17 witnesses, you have a tape recording, you have a video. And the likelihood of success, and you never know, but the likelihood of conviction is really, really, really high. And there’s no such thing as a slam dunk in our system. It’s what makes our system one that has integrity because the jury decides. But there are cases like that. And then there are cases further on the other side of the spectrum where you hoped you had a video, but the video didn’t come through. And you have a couple of witnesses to the robbery, but they have a lot of issues. And it’s unclear how credible a jury might find them. You’ve met the first standard that you’ve described that as you do believe the crime was committed and was committed by the person that you’re looking at, but it’s uncertain whether or not a jury is going to buy your case. Does that make a difference in how you decide to go forward, and should it?

Cyrus Vance:

I think it is responsible to consider how a jury may evaluate the case. And I think it should be considered. Let’s take an example there, sometimes bringing a case to trial, the consequences of that loss, if it’s a loss, can have bigger implications in other cases prosecuted by that office or elsewhere. Domestic violence. We ultimately look to most of these cases as to what is the survivor’s … What does he or she want us to do? And if we prosecute a case and the survivor understands and thinks that the abuser will, she’ll pay a greater price if the case is brought, that’s something that we’ll take into consideration as well. And in areas where there is a lot of public interest, and we’ll talk about some of these cases, the consequence of taking a case to trial and losing it can have negative implications over the broader area of criminal justice that you’re trying to address.

Preet Bharara:

Like what? Do you mean-

Cyrus Vance:

Domestic violence. Domestic violence, sex raps.

Preet Bharara:

But does it have a negative impact in the sense that the public loses faith in the rule of law or something else?

Cyrus Vance:

Or that survivors are less likely to report instances to the police and prosecutors.

Preet Bharara:

Because they will have a sense of futility.

Cyrus Vance:

Or that the very aggressive and active press coming from 360 degrees of opinions may take a loss and blow it up into you can never believe a case involving XYZ crime.

Preet Bharara:

So that’s very interesting. So I was going to come to this later, but I think we should talk about some of these things now. But my segue question is, because I get asked this question all the time, or used to get asked this question, and you alluded to it ;what is different in your office and in the minds and the hearts of the prosecutors when the person that you’re looking at and contemplating charging or end up charging is not an anonymous, ordinary, average citizen of the city of New York or the borough of Manhattan, but is someone who has great fame or notoriety or power or wealth? Like for example, the notorious DSK, Dominique Strauss-Kahn, that your office charged with sexual misconduct back in 2011.

I want you to answer the question sort of generally first, and then we’ll talk about some of these cases. Is there a different standard of justice for people who have power and fame and/or is there something different going on in the minds of the people who are in your office, or should there be, when the target is someone like that? And I’ll tell you what I think about that also, because I think it’s a difficult question to answer sometimes.

Cyrus Vance:

Yeah. Look, I think a person who is well known and is going to attract a lot of attention is both… It cuts both ways. And I think you’d probably say the same thing. I mean, that person may to some prosecutors be more important to prosecute, and others less likely to prosecute. I will say that oftentimes the ability of the lawyers for individuals who have a lot of resources are able to bring more facts to the decision making, some of which a prosecutor’s office might not on their own have been able to address.

And I think at the end of the day, looking at Dominique Strauss Kahn’s case, if I can just refer to that one…

Preet Bharara:

You want to remind people about the basics of the case?

Cyrus Vance:

Yeah. Dominique Strauss Khan was the head of the IMF I believe at the time, International Monetary Fund. He was a sophisticated, intelligent… I think, bureaucrat. I don’t mean that in a negative word, but a public servant economist or analyst who was rumored to be a likely candidate and victor in the next campaign for the presidency of France.

I did not know Dominique Strauss Khan at the time that our office first came into contact with his case. He was accused of sexually assaulting a woman from Guinea. And as the case started-

Preet Bharara:

She was a housekeeper at the Sofitel Hotel.

Cyrus Vance:

Yes, she was a cleaning attendant, a housekeeper at the Sofitel Hotel in Manhattan. And the facts as we knew them in the days after the complaint came in and the police made the arrest were such that we believed with conviction the accusation by the woman. And we proceeded because of that to charge and ultimately indict Dominique Strauss Khan for sexual assault. It was not until some four to six weeks later that we became aware of information, which we would not have been able to be aware of, at least in the short timeframe at the beginning of the case that left me with this problem.

There’s no doubt that there was sexual interaction and the physical evidence proved that.

Preet Bharara:

The first principle that you recited earlier about the prosecutor’s office needing to feel certain that something bad happened, that it wasn’t met?

Cyrus Vance:

Yeah, well, I think it was clear in that case that there was a sexual encounter. The question was ultimately whether it was a crime. And as we explained in a detailed filing– to the Supreme Court judge in our motion to dismiss–was that the ultimate challenge was that we didn’t know what happened, actually, beyond a reasonable doubt in the hotel room, as prosecutors responsible for managing that case. And if we did not believe beyond a reasonable doubt that we could believe what happened and that we could prove it, then how could we ask a jury of 12 people to believe beyond a reasonable doubt that certain conduct happened?

So ultimately, I think it’s an indication that the office was aggressive. And I think for all the right instincts, believed the complainant. And when she came in and as additional facts came out, many factors caused us to question that belief and ultimately to leave us in a place where we did not know beyond a reasonable doubt what actually happened.

Preet Bharara:

So maybe this is a point that not everyone cares deeply about, but is it the case that the office still believed X and it was concerned based on credibility problems with the complainant that a jury might not believe it, or the office itself no longer had the same view and was uncertain about what the truth was?

Cyrus Vance:

It was the latter.

Preet Bharara:

Okay.

Cyrus Vance:

It was the latter, but to be clear, it’s not a situation where the office was not prepared to take on a powerful person or-

Preet Bharara:

Because you did.

Cyrus Vance:

Because we did. Exactly, we did.

Preet Bharara:

The inflection point is the charge. Obviously the trial has to ensue, but I assume this is true. It’s not a small thing to bring that charge. And then it is not a small thing to abandon that charge?

Cyrus Vance:

Yes. Nothing about the case was small.

Preet Bharara:

Can I ask you a personal question?

Cyrus Vance:

Yeah.

Preet Bharara:

What was that like? I remember, because it was not far from my office and I was in office at the time. You know, this is a term that’s used from time to time, but I think it applies here. There was a bit of a circus like atmosphere around that case, given who it was. And given I know both of the lawyers, one has now passed. In that case, representing the complainant and also the defendant who has been a guest on the podcast. In fact, Ben Brafman.

Does it do anything to how you think about the case or how you feel about the case or how the prosecutors wake up in the morning when a particular matter out of the thousands and thousands in the office turns into a circus?

Cyrus Vance:

I think it would be inaccurate to say that I or the lawyers handling the case would be unaware of the extreme interest. And in some cases, the circus-like atmosphere that follows, but that’s not atypical for cases in our office. They may not all be a three ring circus, but there are some-

Preet Bharara:

I’m familiar with the feeling, yes.

Cyrus Vance:

There’s some one or two ring circuses and the way I describe it and other folks as you describe it to your students is you got to be aware of… you are going to be aware of what advocates think, what critics think, what everyone is thinking and saying publicly. But it’s a little bit, if I can give an analogy, it’s like being a player on the free throw line in a pro basketball game. And everybody behind the basket is waving white handkerchiefs, trying to get you to not focus on the thing you need to focus on, which is getting the ball through the hoop.

And so I think for line prosecutors, as well as for elected prosecutors, there’s going to be noise in a lot of cases and you have to be willing to listen, to reconsider, and not judge prematurely, but at the end of the day, that noise is a given and you have to be able to work through that noise. And the only way to work through that and, I think, feel good about whatever the outcome is, is that you sort of follow the processes that have been used by our offices for generations, thorough investigation, trying to uncover any stone. Making a judgment on the facts, the best facts that you can develop. And then you make your decision on the facts you have. And that’s what you ultimately have to stay true to.

Preet Bharara:

What was the harder decision? And maybe this is not a fair question, the decision to charge in that case or the decision to drop the charge in that case?

Cyrus Vance:

The harder decision was the decision not to drop the case… to drop the case, excuse me. To seek to dismiss.

Preet Bharara:

And why is that? Is that because it was tougher on the merits or because there’s institutional pride and you brought a case and everyone is looking at you to be successful in bringing that case? And now you-

Cyrus Vance:

You know, interestingly, I think many in our office and even alumni of the office looked at our overall resolution of that case as actually being in the best traditions of lawyering in the criminal practice, which is you are open-minded and you are not foreclosing, believing someone simply because they may be poor or not have the advantages that others have. And that you’re prepared to go forward on that commitment.

Cyrus Vance:

And we are like you all were at the US Attorney’s office, we are in the business of believing victims. That’s our default. We also have another guiding principle, which you had, which is our responsibility to continue to investigate. And when information comes about during that investigation that we may not be happy to receive, we have to take it where it takes us and then make the decision based upon the full measure of information. And in that case, it was, in fact, I think a more difficult decision to dismiss the case because we had to be able to, in detail, explain to the judge and the public how we got to the decision that we ultimately arrived at, so that there would be transparency in understanding what we did and why.

Preet Bharara:

Would it have been possible in that case… I know some people have said this, and I wonder what you say to them, that you could have waited to bring the charge and done the inquiries and the interviews, and every other bit of investigation that you ultimately did that brought you to the point where you realized you needed to drop the case. Why not do that first before bringing the charge in the first place? Or was there some other circumstance that didn’t allow that?

Cyrus Vance:

Well, I think there were two factors. One is that the assistants who were responsible for the case at the time believed we should go forward, that it did not present itself based upon the information they had as a case that was going to have fatal flaws. And the ultimate information that we did receive did not come about into some months or some number of weeks after the initiation of the case.

And would we have been able to get that information in the first X number of days? It’s not likely that that would have happened. There was also the issue of the intense circus-like atmosphere actually led us to have concerns about the victim’s safety and pressure, the concern about pressure that she may become under given reporters showing up in Guinea, in West Africa and all the other intense pressure that she was under at the time. And that there was a concern with regard to not being able to have her tell her story as reasonably quickly as possible, because delay in having her testify could also at that time, in our view, end up making it more difficult for her to testify.

Preet Bharara:

Right. So that’s a case that got a lot of criticism from various quarters, from both sides during the pendency. And then from another side afterwards, can I ask you… I had my share of criticism on cases brought and cases not brought. How do you cope with that as a person? Do you just shut it out? Do you not do not read it? Do you ask, like I sometimes, your spouse to read it and summarize it for you?

When you’re in a high profile job like yours, and when things like this happen, do you have a big meal? Do you have any coping mechanisms or are you one of those people that will say that it just sort of rolls off your back? No big deal?

Cyrus Vance:

I think criticism and harsh criticism is always and should be hard to take, but I don’t think… My goal is to review criticism with an eye toward trying to learn something from it. But there is always going to be a lot of criticism in the jobs that you held and I hold. And I do think that you have to accept criticism as just part of the reality of holding a job like the one you held and the one I hold.

Preet Bharara:

Yeah. Like I’ve said many times, nobody we investigated a prosecutor ever sent me flowers or chocolates. It’s not how it works.

Cyrus Vance:

But of course this is impacted by the extraordinarily dense media coverage in New York. And in some of these cases, global coverage. There are many times in these cases where you’re… The writing during the course of the case, criticism during the course of the case, I think you just have to keep your eye on the basketball hoop and you have to move through the processes of investigation or the processes of getting ready for trial. And what people say and what people say about the case, you really can’t control. All you can control is what you do and what your assistants do in your office.

Preet Bharara:

Right. So I distinguish between two kinds of cases where there may be criticism and how, as a prosecutor, you can effectively and appropriately explain to the world why you made the decision you make. And in the one case or the one category, it’s if you make a decision to charge and you go to trial, or you dismiss the case, people are in a better position to talk about your decision. Like they were in the DSK case, right?

You made the decision to go forward. People can take their point of view based on reviewing the evidence and your filings. Was it a good thing? Was it a bad thing? Were mistakes made? Were they not made? And you can have an argument about it. But there’s another category, and we’ve referred to it already once, of cases that you don’t bring, that people are expecting to bring or want you to bring whether it’s against a prominent person or not.

And then you make the decision as an office. And I did this many times, right? Not to bring the case. And to me, that’s a much harder thing to explain to the public why you didn’t do something. It’s harder just generally in life to assess a decision not to do something, a decision not to take a job or not to marry someone because you don’t know what history would have brought you. And so that’s the kind of thing that you had to face as well, most notably in 2015, when your office decided not to prosecute Harvey Weinstein, based on a particular complaint that involved an improper touching as alleged by the complainant who then worked with police officers to get what I think some people view as a somewhat incriminating audio recording later that could have been used as evidence. And your office didn’t bring the case.

Before I get to that and have you just say what you want to say about it, what do you think is the role of a prosecutor in making a public explanation about cases not brought? On the one hand you could decide, look, our cases speak for themselves. If we don’t bring a case against the mayor or the governor or a legislator or a Hollywood producer, we’re not going to get into it. That’s what got Jim Comey in trouble with respect to Hillary Clinton. Or do you think that some amount of explanation is possible and appropriate and necessary?

Cyrus Vance:

I think it depends on the case. I think there are some former prosecutors who believe, as you say, that you only speak through your indictments and not through your decisions not to indict them, that there is no comment. But I think today, some different general rules apply. One of the problems about talking about a case that you don’t bring is that much of the information is obtained through a grand jury process and maybe still covered by grand jury secrecy, that you don’t want to expose a victim or others, to expose personal facts that may be harmful to them if they are exposed.

And so there are a number of reasons why you are reluctant to go deep into reasons not to prosecute a case. And in 2015, to turn to the case you alluded to it. As I said, some of the hardest decisions are the ones to not bring cases.

Preet Bharara:

To walk away. They are indeed the hardest.

Cyrus Vance:

Yeah. But in that case, I think the process that we followed is exactly the kind of process that I think you need–The process that we followed is exactly the kind of process that I think you need to apply in cases. Then you make your decision and folks will criticize you or not, but if you feel you made the right decision, that’s all you can control. I had the head of our Sex Crimes Bureau, who at the time had, I think, 39 years of prosecution experience as a professional prosecutor, the Chair Woman of the Defense Department’s Committee or Commission on Sexual Assault in the Military, tried innumerable cases and ultimately her conclusion to me was that this is not a case that we should bring. There were discretionary issues around that and there were credibility issues around that. We made a decision, which at the time, frankly, didn’t seem too interesting to people at all.

Preet Bharara:

Is this an example of what you were referring to earlier? If so, can you talk about it? Because the reporting is, that the police department disagreed with the decision not to prosecute and as we discussed, the decisions made by prosecutors, not by the police, but was there a significant amount of tension with respect to that decision that you were aware of?

Cyrus Vance:

I think there was a significant amount of tension, but I think it came to light at a later point in 2017, after the reportings were made on Mr. Weinstein’s allegations about his misconduct in the past. But that is an example of a case where our office… I respect all our law enforcement partners. I really respect the NYPD and in the overwhelming number of cases that we work with them on, we come to the same conclusion. But my job is different than the detectives. Their job takes them so far in the process. Our job is to take a case to trial and ultimately have the proof when all the facts will be laid out, as they would be laid out in that case, at a trial and make a decision based on all those facts. That sometimes causes tension with the NYPD.

But take another example: we made a decision in our office to stop prosecuting marijuana cases in 2018. We made a decision to effectively stop prosecuting theft of services cases, which was controversial, because I couldn’t imagine that a $2.50 theft, that the consequences of being arrested and going through the criminal process were disproportionate to the offense at inception…

Preet Bharara:

You’re talking about things like fare evasion on the subway?

Cyrus Vance:

Yeah. And all those things cause conflict with the NYPD. That said, on the long run, I’ve had a good relationship with Commissioner Bratton, Jimmy O’Neill after him and with Dermot Shea today.

Preet Bharara:

A couple more questions on the Weinstein case.

Cyrus Vance:

Yeah.

Preet Bharara:

Because your office ended up bringing a different case involving different victims later and just some months ago, convicted Harvey Weinstein who got a significant sentence on a number of those counts. When you’ve been asked about 2015 versus 2019, you said something that was very interesting. I think you said something like, “We were looking at that case with 2015 eyes, not 2019 eyes.” What’d you mean by that?

Cyrus Vance:

Well, I think I meant two things. One thing is, I believe that over time we evolve in our jobs, based upon events and facts that we lived through during the time in office. The publication of Mr. Weinstein’s story and the stories of many others, many of whom have never been charged in court, and my conversations with survivors’ groups and advocates has led me to understand that workplace sexual assault was much more predominant than I knew, in fact, in 2015.

I don’t think I’m alone in that. I’m sure that there are folks who would say, “Well, you were blind to it.” And the answer is, ” I think many were.” I don’t mean we didn’t… we obviously prosecuted cases involving workplace sexual assault, that’s not my point. But the point is that in 2017, we had a whole lot more information about who Harvey Weinstein was.

Preet Bharara:

It seems like a few things had changed, right? There was different evidence, because it’s a different kind of case. I think you’ve also made the point, which I think is well taken, that there’s a shift in public consciousness and public education, such that, you could maybe trust juries to understand non-intuitive facts, like victims continuing to have some contact or relationship with the person who victimized them. That would make for a more prosecutable case in 2019 versus 2015. But I want to press a little bit more on this other thing, in my assessment, going back to an earlier question, we were discussing, of how important is the likelihood of success in going forward? In part to me, and I don’t know if you agree with this, something that factors into it is the seriousness of the harm that’s involved in the crime.

So if it’s something petty and it’s not a deep societal issue, then maybe if you have less likelihood to succeed, you don’t push it. But in my mind, I wonder if it’s true that given the Me Too movement and all sorts of attention coming, not just to Harvey Weinstein, but the problem generally of sexual misconduct, particularly on the part of the powerful towards the less powerful, that the risk assessment for prosecutors has changed over time, such that now given how serious the underlying problem is–and how seriously the public takes it and how seriously you need to do something to deter it–that prosecutors such as those in your office are more open to taking an aggressive line in those cases. Is that fair or not?

Cyrus Vance:

I think it is fair. Look, I like to think, and I believe, that for as long as I’ve been involved in the office, we’re making the decisions on the facts and the law. But we definitely evolve in our understanding of the behavior of survivors of crime in ways, and in crime areas that we didn’t and we see this happen several cases, historically. With domestic violence in the 1980s, the awareness was not there about the psychology behind a survivor, staying, returning to the abuser, or coming in and making a complaint and then testifying oppositely, or not wanting to go forward once the case had been brought. We understood over time why that happened. Once we were able to develop expert testimony, the office, and I’m sure other offices around the country, of course, were able to both be more sensitized to the behavior of the survivor that we may not have understood previously. We also had the legal foundation through expert testimony and in prior cases that looked at these evidentiary rules to bring in expert testimony.

Sex trafficking, some of the most difficult cases that we handle in terms of the issues you’re talking about. We functionally no longer prosecute prostitution in Manhattan. All prostitution cases where arrests are made go to a special court in Midtown Manhattan. Then the assistants we assign to that part are all responding from our sex trafficking unit. They’re trying to identify, not who committed prostitution, but what prostituted woman was actually, or man, was actually in this situation, because of force, fraud, or coercion, or at whatever age the survivor is. So our understanding of sex trafficking changed radically between 1980 and 2010. We opened up our Sex Trafficking Unit in 2012. They try some of the most difficult cases, where the abused partner will take the stand and swear that nothing happened, notwithstanding the fact that on wiretaps lots has happened. That there are photographs of abuse and bruises and tattoos.

Those are two areas where, sorry for the long answer, but those are two areas where our understanding evolved over time. When you look at those two areas, it kind of makes sense. The area of sexual assault by the powerful or non-powerful is an area where over time, I think our understanding has evolved as well. In the Harvey Weinstein case, I understood that the case was going to be extremely challenging from a trial perspective, but I believed the survivors. I had an excellent lawyer investigating and trying the case of the survivors, that was not the issue. The issue was: will the jury convict? In our view, I felt, and in my view, I felt that the population of Manhattan in particular, but the country as the whole, they were understanding more about what was happening in the victimology of survivors of sexual assault-

Preet Bharara:

So another way of putting that is: so do you credit the Me Too movement in part, or in large part, with creating an atmosphere and public understanding sufficient to allow your office to be comfortable bringing that Harvey Weinstein case that you ultimately brought?

Cyrus Vance:

Yes, I do credit it. I think I’ve read the books of and the writings around those folks who covered it. I don’t agree with all of their assessments, but their writings definitely had an impact of, I think, educating the public about the issue generally. I believed that in 2020, that a jury would be able to understand testimony, which even five years ago would have not been as easily understood by a group of Manhattan jurors to reach a verdict unanimously based upon belief, beyond a reasonable doubt, that the case had been proven for each and every element of the crime.

Preet Bharara:

We talked earlier about what happens if a case doesn’t proceed well. In certain circumstances that could lead to a bad consequence for the officer in public faith. So I feel like I need to ask you this question, the fact that the DSK, the Dominique Strauss Kahn case ended with you dismissing the charges in 2011, did that have any direct or indirect effect you think now in hindsight on how aggressive your office was prepared to be in not bringing the case against Harvey Weinstein in 2015? Or is there no relationship at all?

Cyrus Vance:

With regard to the 2015 case?

Preet Bharara:

Yeah.

Cyrus Vance:

Yeah, I’m always in my mind, obviously I’m aware of the DSK, but we’ve handled, I think 6,000 sex crimes cases plus, in my time in office.

Preet Bharara:

Right. But I mean, some people would say you had this circus situation with DSK, high profile sex crime allegation. “Oh, now we have another high profile person in 2015.” What lessons were in the minds of people, I think it’s not inappropriate to ask?

Cyrus Vance:

I was going to say, people may not perceive it, but our analysis in 2015, as far as I was considered, had nothing to do with 2012 and Dominique Strauss Kahn. It was a thorough investigation based by an ultimate professional who had no interest in politics or donations, and-

Preet Bharara:

I thought it was an important question to ask, and for you to address. People would do this with me, a lot of folks. And maybe sometimes it’s true in certain contexts, that a particular result in a particular case has some chilling effect later on bringing cases. I would always tell people when folks said that about some of my cases, whether it’s the financial crisis or something else, I think lay people often want to draw a line between something that happened in an office on date X and why they may not have done something later, maybe not fully appreciating that these are independent things. Or maybe sometimes in certain circumstances, those critics are correct. Prosecutors are human beings, too, and sometimes decisions are made and maybe not so consciously, based on other things, but maybe they are influenced. But I think it’s a thing that people have wondered about and asked about, so I’m glad you addressed it.

Cyrus Vance:

Well, I think the way I describe it is sometimes the right answer is the simplest answer, which is, the facts under review in 2015 were reviewed based on all the information we had then, and not holding over any concerns about Dominique Strauss Kahn. I mean, our office has prosecuted, as I say, many, many, many sex crimes cases–andn some cases not prosecuted and in some of those cases, there are other powerful men. So I think it’s, as you said, I think you’re trying to create a connection because it seems like it’s right there and therefore must be true, but it isn’t, in fact, true.