- Show Notes
Cohen Testimony & Just Mercy (with Bryan Stevenson)
Bryan Stevenson is a 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.
REFERENCES AND SUPPLEMENTAL MATERIAL
- 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)
- 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 articlefrom 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
- An article from the Asia Society on the history of Asian exclusion acts
- History of The Klu Klux Klan Act
- 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
- 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
- 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.”
Do you have a question for Preet? Tweet it to @PreetBharara with the hashtag #askpreet, email [email protected], or call 699-247-7338 and leave a voicemail.
Preet’s Thoughts On Michael Cohen:
Preet Bharara: Hey folks, so, normally at this time, we’d do the regular question and answer period, but it happens to be Wednesday, February 27th at about 5:30PM, and just a few minutes ago, the Congressional Testimony of the former lawyer to the President of the United States, Michael Cohen wrapped up. So right now, I’m sitting at CNN in a conference room on the seventh floor waiting to go on and talk with Wolf Blitzer about the events of today, but first wanted to record my thoughts for all of you.
Preet Bharara: So, set the stage. You have the former lawyer for the President of the United States, whose testimony was expected some weeks ago, was expected to be a big deal, that got canceled. He then testified yesterday behind closed doors in a classified setting and it was not perfectly clear what to expect today, although there was a lot of maneuvering yesterday. Raising of expectations, lowering of expectations. You had the crazy example of a sitting member of the House of Representatives, Matthew Gates, who issued a Tweet, basically suggesting that he and others might out Michael Cohen for having various “girlfriends”.
Preet Bharara: The way that Tweet was phrased, I agree with the commentariat who said, it looked like evidence of witness intimidation. It looked like the intent of witness intimidation. I also said that I don’t think one Tweet standing alone would cause any prosecutor to take action criminally, but Matthew Gates has since deleted that Tweet because he realized he was in a whole load of trouble. He had no support from his own side and certainly not from Nancy Pelosi.
Preet Bharara: Just a few hours ago, it was reported that the Florida Bar is taking a look at the propriety of Matthew Gates’ Tweet. Interesting enough, nothing along the lines of what Representative Gates suggested, transpired today during the hearing, which lasted from about 10am to after 5pm. People didn’t have to wait until Michael Cohen actually walked into that room in the [inaudible 00:01:57] office building to find out what he had to say. Because late last night, and some of you may have seen it, his actual written testimony was released, or at least came into the possession of members of the media.
Preet Bharara: If you stayed up late, you went to bed wondering wow, what is this gonna look like tomorrow? And even though people had some basis to anticipate strong language from Michael Cohen, it was even stronger, at least, than I had expected it to be. My overall impression of the written testimony, which he repeated orally today in Congress, was that it is well written. It is sharply rendered and it’s, in a couple of different ways, fairly devastating to the President, notwithstanding what we’ll talk about in a minute, which are the liabilities that Michael Cohen brings as a witness. As somebody who may not be in the position to cast aspersions on someone else since he, as was mentioned a thousand times today, is himself a convicted liar.
Preet Bharara: Not just any, ordinary convicted liar, but someone who is convicted of lying to the very people before whom he was testifying today. So one thing Michael Cohen does pretty well, both in his oral testimony and how it’s written out, is that he takes some blame, substantial blame for his own conduct. He sounds remorseful. He engages in a series of apologies, which is I think a good place to start when you come with as much baggage as Michael Cohen did. It seems obviously, but not every witness does that.
Preet Bharara: He says a lot of things about Donald Trump. Some of which we knew before, some of which we didn’t know before. All of which needs to be tested by other evidence and by other witnesses and the two broad categories, the way I think about it is, one category is things he says about Trump that actually exposes him or others to legal jeopardy. They get to the Mueller investigation, to the SDNY investigation, there are things that might need to be investigated further and maybe already under investigation.
Preet Bharara: The second category that Michael Cohen says about Donald Trump, go more to his character and what kind of person he is. In some ways it’s the second category that is more eye-popping and sensational that the first category, although obviously things that may cause legal consequence are more important ultimately in the long-run. But remember, this is not just about a legal case, it’s also about public support for Donald Trump. It’ also about a political process in which it matters if Donald Trump is seen as a bad person. It matters if members of Congress feel that they can break with the President.
Preet Bharara: If the President loses support, so let’s about the second category first, and if you haven’t seen it, just a couple of passages I will read to you, which sound stunning, when just a few months ago, Michael Cohen was saying to to everyone, he could see that he would take a bullet for the President. So Michael Cohen says this in his testimony: “I am ashamed that I chose to take part in concealing Mr. Trump’s elicit acts rather than listening to my own conscience. I am ashamed because I know what Mr. Trump is.”
Preet Bharara: And then he says three things in simple, declarative sentences. “He is a racist. He is a conman. He is a cheat.” He also says this, which also, given the source, reads sort of stunningly. Speaking of Trump, Cohen says, “He is capable of behaving kindly, but he is not kind. He’s capable of committing acts of generosity, but he is not generous. He is capable of being loyal, but he is fundamentally disloyal.”
Preet Bharara: And then this, which struck me, because when you think about what it means to be the leader of the free world, the President of the United States, the Commander in Chief, whether you credit it or not, it’s an astonishing thing for a man who used to be the personal lawyer to the President to have said, and it’s this, on page 15. “The sad fact is, that I never heard Mr. Trump say anything in private that lead me to believe he loved our nation, or wanted to make it better.” In the same vein, along the way, Michael Cohen paint a portrait of a man who he says is racist. Who’s said terrible things about other nations. Who’s said terrible things about the black leaders of other nations.
Preet Bharara: Who, on the one hand, who frequently demanded that the first black President of the United States, Barack Obama, release his transcripts at the same time, asked Michael Cohen to send threatening letters to Donald Trump’s own alma maters if they dared to release Donald Trump’s grades or SAT scores. He describes an example that is maybe more humorous and sad, than mean, during which Donald Trump decided he wanted one of his personal portraits to be sold at auction at a high price and got a straw purchaser who drove up the price to 60,000 dollars so Donald Trump would not be embarrassed and then had his own foundation secretly make the purchase. Question is, whether that is lawful or unlawful.
Preet Bharara: There are also anecdotes about Donald Trump saying he’s not stupid. He was never gonna go to Vietnam, and it goes on and on. So that’s one category of thing that is sort of interesting to think about, interesting to talk about. The other category, probably of greater consequence for the country is the bucket of things that Michael Cohen said about Donald Trump that beg further investigation, inquiry, and pursuit.
Preet Bharara: There’s a lot, but since I have limited time, I’ll talk about two or three of them. First, and I think most important is the thing we’ve been talking about for some months. And that is the background with respect to what Michael Cohen himself said in Federal court. And that the Southern District of New York adopted in Federal court. Remember, Michael Cohen plead guilty to a campaign finance violation, a criminal violation, for making a hush money payment on the eve of the election, related to the election, of $130,000.
Preet Bharara: Michael Cohen said, in his plea allocution that he made that payment in coordination with and at the direction of individual one, or Donald Trump. Well, he repeated that in oral testimony in front of the Congress, under oath. He gave some details about it. He talked about how Donald Trump knew well in advance that the payment was gonna be made. That Donald Trump instructed him to lie to particular reporters about whether or not Donald Trump knew about the hush money payments. Says that Donald Trump directed him to make the payment out of a home equity loan that Michael Cohen had taken out, so it wouldn’t be traceable back to Donald Trump.
Preet Bharara: Then other bits of detail that are both startling and credible, are as follows. After Donald Trump becomes the President of the United States, Michael Cohen describes being in The White House and being struck by how amazing it was that he was sitting in a seat of power of American government. And that Donald Trump remembered his obligation. The story is that Donald Trump sometimes does not remember to pay people that he’s supposed to, but in this case, he did. He made clear to Michael Cohen that the monthly payments were coming. The pretense was that, this was all pursuant to some pre-arranged retainer agreement which Michael Cohen said over and over again, was false.
Preet Bharara: There was no retainer agreement. This was a subterfuge for Donald Trump to pay back the money that had been paid to the actress known as Stormy Daniels. Furthermore, Michael Cohen says he received 11 checks, I think one of which he presented to the Congress today and it bears a very distinctive signature, the signature of Donald Trump. So, there are more details there as well, but the testimony about the campaign finance violation I think is important. I think makes the case not likely to go away any time soon. It is true that the Southern District of New York took the guilty plea from Michael Cohen, and maybe they feel for various reasons they can’t go farther. But I think enough smoke was thrown up, enough additional detail was provided, that that’s something to keep an eye on.
Preet Bharara: The second example where Michael Cohen himself had substantial jeopardy, was with respect to his lying to Congress, which is the basis on which he’s gotten attacked for weeks and especially today. With respect to those lies to Congress recall, that they were about Michael Cohen’s testimony, where he said that all conversations and discussions and negotiations about the potential development of a Moscow Trump Tower ended January of the election year, 2016. That was a lie. And it was an important enough lie, that the special council caused Michael Cohen to plead guilty to it.
Preet Bharara: So, Michael Cohen made something fairly clear today and there’s been some rookie reporting about it, BuzzFeed at one point reported that that lie was directed by Donald Trump. It turns out that that’s sort of true, not fully true. Depends on what the word “directed” means. When Michael Cohen said, under oath, in front of Congress today, is that that’s not how Donald Trump does things. Donald Trump doesn’t direct you to do anything. He makes clear what he wants. He speaks in code.
Preet Bharara: Someone today on Twitter asked if that sounded familiar to anybody. And a gentleman with whom I used to work, Jimmy Gagliano with the FBI, pointed out that he worked a lot of mob cases as I have. And that’s something very familiar. Mob bosses know how to tell people to get something done without giving them a direct instruction. So Michael Cohen, whether you believe it or not, and you’d have to come by corroboration in some way, but Michael Cohen said in a second instance, essentially, that the President of the United States had directed him to commit a crime, although he didn’t do it directly. It was an indirect instruction.
Preet Bharara: And then the third major thing that struck my ear at least, is the business with Wikileaks. Assange and Roger Stone. Remember, Donald Trump has said over and over and over again that he didn’t have any conversations with Roger Stone about the fact that Wikileaks was gonna be dumping these emails that were gonna be hugely damaging to the Clinton campaign and that had been hacked by other parties previously. That, by the way, is a little bit at odds with the public statement that Donald Trump made during the campaign where he essentially beseeched Wikileaks and said, in front of tens of thousands of people, if you have Hilary Clinton’s emails, please, please, please release them. Which has been a point of contention all day today as well.
Preet Bharara: The other new bit of news, if you believe Michael Cohen, he says that in fact Roger Stone absolutely give Donald Trump a heads up. He describes in some detail and the details go to credibility, the theory goes that the more compelling detail you have in your narrative, the more likely it is to be true. Some people can disagree with that and some people are very masterful at coming up with detailed false stories. So, we can judge the story over time. But he does provide a compelling narrative in which Roger Stone called up Donald Trump, Trump took the call in his office on speaker phone, he described a black speaker phone. And Michael Cohen himself overheard the conversation because it was on speaker phone between Stone and Trump.
Preet Bharara: Now, the question is, is there any corroborating evidence for that? And I don’t know the answer to that question. There are ways that you can find non-dispositive bits of corroborating evidence. You could interview the assistant. You could see if there were actually calls based on toll records between Roger Stone and the Trump office. You could see if there were other people around who may have heard these things. It’s also possible that some date in the future, although it seems highly unlikely, that Roger Stone will become a witness. Nobody ever thought Michael Cohen would. Nobody ever thought Paul Manefort would, but you never know.
Preet Bharara: There’s one other potentially important point on the issue of whether or not Donald Trump talked to Roger Stone and got a heads up about the Wikileaks email dumps. And that is what Donald Trump told special council Mueller in response to written questions. I believe the reporting has been, that in those questions, among other things, Donald Trump denied getting a heads up about the emails. So, he could be in legal jeopardy, notwithstanding the OLC memo that we keep talking about that says you can’t indict a sitting President, but he could be in legal jeopardy, if for example, the special council or Congress believe Michael Cohen over Donald Trump.
Preet Bharara: So, on the Moscow Tower issue, and the fact that Michael Cohen plead guilty to lying to Congress about it, the fact that Michael Cohen says, well the President doesn’t direct me, he speaks in code, that’s an evidentiary problem. There’s another set of pieces of evidence that may be relevant here as Michael Cohen testified, he said his statement, meaning Michael Cohen’s statement, for which he later had to plead guilty, was vetted by Donald Trump’s lawyers including Jay Seculo.
Preet Bharara: So, depending on whether or not you can get the emails and the drafts and the comments back and forth and see what, if anything, the President knew or directed with respect to that statement, then these might be things that are beyond the knowledge of Michael Cohen. That could put the President in jeopardy too. One point about this issue of the presence of lawyers and the attorney/client privilege and Michael Cohen was a lawyer to the President and the President’s lawyers may have helped to engineer the statement that Michael Cohen made that was false to the Congress.
Preet Bharara: There is attorney/client privilege. It doesn’t apply to every communication made between a lawyer and another human being and it certainly doesn’t apply when there’s something that’s called the Crime Fraud Exception present. And that’s basically a doctrine that says if you are conspiring to commit a crime with your lawyer, those communications are not protected by the attorney/client privilege and you’ll see that playing out in the weeks and months ahead probably also.
Preet Bharara: There are other points that Michael Cohen made and other things that came out in testimony including whether or not the Donald Trump foundation properly used its funds, but those to me, are the three main things. How do I think Michael Cohen did? Well, on the negative side, he has a lot of baggage as we’ve said. He plead guilty to lying to Congress. He has a reputation for being a thug. Some of his history of thuggery was thrown back in his face today by Republican members of The House. He threatened reporters. He did a lot of terrible things and he’s not quite a sympathetic figure. So that’s on the negative side.
Preet Bharara: As I’ve said all along, when you have somebody who’s a difficult witness, who has baggage, particularly baggage with respect to honesty, then you have to look at corroboration. With respect to some things he testified about, he brought, as the kids say, receipts, also known as corroboration. But other things remain uncorroborated, so you have to see how that plays out. But, a few things in his favor. One, demeanor is important. I never saw him losing his cool. He looked like a person who’s accepted his fate. There was no bravado, I think that put him in a good position.
Preet Bharara: Second, when he testified about things, he didn’t, as they say, guild the lily. The very things that people are criticizing as gaps in his testimony, were things that are uncorroborated, or on the flip side of the coin, arguably the things that make his overall testimony, in the minds of some, more credible. He didn’t make up a lot of stories to make Trump look like the worst person on earth. He didn’t take every opportunity to do that. On a number of things, he took the President’s side. With respect to some conspiracy theories and rumors about whether or not Donald Trump had struck his wife Melania in an elevator. He said he didn’t believe that was true.
Preet Bharara: On the issue of whether or not he had gone to Prague, he said that’s not true. On the issue of whether or not Donald Trump had fathered a love-child with someone, he said that wasn’t true. It matters that Michael Cohen, I think, when you’re judging his credibility, not only had a good demeanor, but on various matters, chose not to attack the President.
Preet Bharara: Another powerful both logical and rhetorical argument, in favor Michael Cohen, doesn’t get him off the hook completely, but in favor of Michael Cohen is, many of the lies he told were for the benefit of Donald Trump. When he said I’m done lying for Donald Trump, that had some force. Of course there’s also a flip side to that and one of the few times where I thought a Republican Congressman was effective in questioning Michael Cohen was when he made clear there were various things for which Michael Cohen plead guilty that had nothing to do with Donald Trump.
Preet Bharara: That were not at Donald Trump’s direction or in coordination with him. Like various ways in which he cheated on his taxes. There’s one point of controversy where I think the Republican side drew a little bit of blood. I don’t know how important it is, but it was on the issue of whether or not Michael Cohen was acting as someone who is disgruntled because he was denied a job in the White House. Which was his ultimate goal. He testified repeatedly today that he had no interest in a job in the White House, he didn’t wanna join the Trump administration. And there’s some evidence from people who put in emails and letters and correspondence to the committee that Michael Cohen had told them, that that’s what he wanted and he was really upset and disappointed when he didn’t get such a job.
Preet Bharara: Is that a central issue on which to judge Michael Cohen’s credibility? Probably not. But it’s something. When you think about Michael Cohen’s credibility overall and the various things he said, some of which are devastating to the President, you have to take it all into account. So, last point, Michael Cohen, though he’s lied before, now has a much, much, much higher incentive to tell the truth because he now knows what happens when you do lie. And to lie again, it doesn’t mean it’s not possible, because people do stupid things, but to lie now is a much bigger deal even than lying before. The whole world is gonna be watching and testing every little thing he said.
Preet Bharara: I suppose the next question is, how did Congress do? And I have said many times, and I have great respect for members of Congress and I helped to staff hearings in the Senate as well, but typically I don’t give high marks to members of Congress asking questions and part of that is because the mechanism by which you’re trying to get to the truth when you have dozens of members of Congress asking questions in five minute increments, the rhythm is broken from the prior person. The rhythm by the way, is often broken because you go back and forth from the minority to the majority.
Preet Bharara: So, Republican Senator beats the guy up, the Democratic Senator tries to build the guy back up, you get a very disjointed overall effect from all Congressional hearings and particularly one like this where everyone wants to get a little bit on the action, not everyone is in the spirit of Clarence Darrow. That said, I think on the Republican side, just judging them as inquisitors, I did not understand why member after member, given how much other baggage there is and how much potential internal inconsistency there is, on some parts of Michael Cohen’s testimony, why they went again and again, beating him up on the issue of whether or not he potentially has a book deal or a film deal.
Preet Bharara: At one point, one member of Congress went so far as to ask him to commit to not making a book deal in the future and not making any compensation, so he just said flatly and simply, no. And the member had to go on with their next question. So, that time was not fruitfully used, from their prospective. From the prospective of people who are trying to undermine a witness, they didn’t do that.
Preet Bharara: The other thing that’s very striking about the testimony, and others have commented on this, is that the minority members, Republican members, who reportedly were there to defend the President, spent precious little time engaging in the allegations themselves. Questioning the authenticity of the statements made on their face. Challenging his memory. Challenging contradictions that potentially were there. One of the few exceptions was to contradict some of the story that Michael Cohen was telling. So far as he was trying to present himself as someone who only lied on behalf of the President. Well you know what? That’s not true.
Preet Bharara: There was a member of Congress, I think it was Jim Jordan, who by the way on Jim Jordan, I asked this on Twitter yesterday, got no answer, I don’t know why that gentleman never wears a jacket during hearings. When a witness presents himself in a particular way and he can be shown to be contradicted with respect to other parts of his testimony and his background, there are a million ways you could have sliced up Michael Cohen. An effective lawyer might have done it. I didn’t see the Republicans doing it.
Preet Bharara: I don’t know if that’s because they lack a certain level of competence, or they might have been afraid of what Michael Cohen might say. Because sometimes, I’ve seen this before in court, you have a well-prepared witness who has been beaten down, has nothing to lose, who has decided he is gonna tell the truth. Sometimes the testimony is better on cross examination then on direct examination. And you saw that a few times. People tried to dress him down on one or more occasions, he came back saying very strongly when he was attacked on his guilty plea, he said yeah I did lie. But I admitted I’m lying and I’m going to jail for it, and I’ll regret it forever. And I’m really sorry for it. That’s compelling.
Preet Bharara: Now, on the Democratic side, there weren’t very many Clarence Darrows either, but there were a few members who actually put things on the record. Alexandria Ocasia Cortez, much discussed, much criticized in other quarters I guess lionized, she asked a series of simple questions, not even using her full five minutes to lay a foundation for the committee needing to have in the words of Michael Cohen, Donald Trump’s and the Trump organization tax returns. It was definitely done. You don’t see that so often. She’s a new comer who gets a lot of grief for other reasons but that was good.
Preet Bharara: There was another member of Congress, and maybe this was almost accidental, who asked Michael Cohen how many times the President had asked him to threaten someone. And by threat, I think he understood the question to mean, threaten with abusive language or with litigation or intimidate in some way, and I think she first asked the question, was it more than ten, was it more than 50, and eventually, he stated under oath in Congress, that over the course of ten years Donald Trump had asked him to threaten someone or some organization, 500 times. That was astonishing testimony. So I thought that was great. My criticism is that I would have then spent a lot of more time on those 500 threats. I would have liked to know the nature of them. I would have liked to know if he reported back on the threats. I would like to know how explicit Donald Trump was in telling him to make the threats. Although, at various junctures, Michael Cohen said he understood the code and he knew what to do.
Preet Bharara: Whole bunch of other questions. I also would have liked to hear questions about whether or not Donald Trump had engaged, to Michael Cohen’s knowledge, in a sexual misconduct, sexual assault, sexual harassment. I may have missed it because I didn’t watch every single second, but I didn’t hear that either. So what’s the upshot of all this? The question of whether or not Donald Trump committed a crime is a more serious one today than it was two days ago. We’ve known for some time that Michael Cohen committed a crime, allocated to committing a crime, when he engaged in the payoffs before the election in 2016.
Preet Bharara: And he said that he was directed to do so by the President. You now have him giving evidence of a check that was personally signed by the President. You have a series of descriptions of how Donald Trump told Michael Cohen to lie to the reporter about whether or not Trump knew of the payment in advance and if you credit Michael Cohen with that, that further implicates Donald Trump. You also have detailed stories about how Donald Trump decided to repay Michael Cohen. And an overlay to all of this, the payment, its connection to the election, how much it was, who had what knowledge, you have common sense. Common sense tells you, as Michael Cohen said fairly credibly, you don’t just go around making payments to somebody of a six figure nature without consulting your client on it.
Preet Bharara: And the fact that it was done in a way to conceal, not only from reporters but so if other people started to look at the way in which the financial payments were made, they were done through a home equity loan that Michael Cohen took out personally. There was this sham, according to Michael Cohen, the sham arrangement of a retainer, which he says wasn’t really true, creating a paper trail that was in every way it seems, designed to conceal the nature of the underlying unlawful action and in combination, those things begin to paint a very troubling picture of criminal conduct on the part of the President.
Preet Bharara: Whether anything comes of that we’ll have to see. What does it mean for future Congressional action? I think a lot of people made a very good case for continuing investigation with respect to all the matters and even more that Michael Cohen addressed in his testimony. I think there was good reason and you would expect this happen that many other people in the Trump orbit, including potentially Don Jr. And others will be brought before the committee. You might see Rona Graff, the President’s assistant, brought before the committee. You might see Alan Weiselberg, the CFO of the Trump organization brought before the committee.
Preet Bharara: I don’t see any reason why they shouldn’t be and what you will see is over time, revelation after revelation. Some will be small, some will be larger. Some will be contested. But that’s gonna be what you’ll see in Congress over the next number of months. That’s the consequence of the 2018 midterm election. So, this is just beginning and I think it will get much more heated over time.
Preet Bharara: What does it mean for Michael Cohen? Well, even though he said many, many things in his testimony today, what he didn’t say is perhaps more ominous for various folks. He didn’t say what he’s talking to the Southern District about. He did say that he’s meeting with them, the folks in my former office, and what’s interesting about that is, the Southern District of New York is not subject to the same parameters as the special council is. The special council was appointed by Rod Rosenstein under particular guidelines that have particular rules and a particular scope of investigation. Essentially, Russian interference and things arising from that investigation.
Preet Bharara: The Southern District of New York, which as you know I helmed for seven and a half years considers its ambit to be very broad and anywhere on the part of any person that they see a Federal crime being committed and they think they can prove it beyond a reasonable doubt, they will pursue it and they’ll bring the case. And it often happens when you enter a hornet’s nest looking for one particular thing, other things develop and based on the conduct of people like Michael Cohen, and Paul Manefort and Roger Stone and the fine folks at AMI that owns the National Enquirer, it seems that there’s a lot of smoke. And where there’s smoke, there’s often fire and I presume the Southern District of New York will find it.
Preet Bharara: And so as some people have been saying for some period of time, it may be that the special council’s work as it defines it, is winding down but it looks to me from the outside with some educated ability to guess, the Southern District’s actions are just heating up. And you know what, the elephant in the room, which is a very tired expression, but I’ll use it anyway, is impeachment. I am always loathed to talk about whether or not that makes sense, whether it will happen, but I’ll make one prediction and that is, if you have more hearings like this, where there’s credible evidence brought to bear that the President has abused his power and has behaved in a way unbecoming of the office and has perhaps even committed Federal crimes or other kinds of crimes, it just will become more and more difficult to put off the day of reckoning on commencing impeachment proceedings of some sort.
Preet Bharara: And maybe the leadership will wanna talk about taxes and will wanna talk about energy and will wanna talk about climate change, and that’s all good and should happen, but it is just gonna be difficult if we have more days like this to stave off the idea of holding a President, who by the accounts of people who are closest to him, is out of control, it’s gonna be hard to avoid. I’ve been talking a long time about this in this conference room on the seventh floor at the Time Warner center and I can talk a lot longer, but we’ll save further reflection, which may become more intelligent because I will have more time to think about it, and more importantly, I’ll be joined by Ann Millgram on Monday on the Café Insider Podcast.
Preet Bharara: To get that podcast and to hear more of what Ann and I have to say, become a member by going to café.com/insider.
Interview with Bryan Stevenson
Preet Bharara: Bryan Stevenson, thank you so much for joining us on the show.
Bryan Stevenson: I’m happy to be with you.
Preet Bharara: I gotta tell you, this is, I feel, long overdue. I’ve been following you for a long time, huge admirer. We know a lot of people in common, so I’m glad, finally, you get to share some of your wisdom with us.
Bryan Stevenson: Well, thank you.
Preet Bharara: I want to congratulate you also on the continued success of your book, Just Mercy, which is now out for four years?
Bryan Stevenson: Yeah, that’s right.
Preet Bharara: Four years, and it continues to be extremely popular and extremely meaningful for a lot of people, and in, I think, more recent news, is going to be made into a motion picture.
Bryan Stevenson: Right. Yeah.
Preet Bharara: So, what ordinary actor is playing you?
Bryan Stevenson: Well, Michael B. Jordan is playing me.
Preet Bharara: Oh, Michael B. Jordan?
Bryan Stevenson: Yes, that’s exactly right.
Preet Bharara: Oh, I see. Try to say that with some modesty.
Bryan Stevenson: Yes. I told him he needs his Creed body when he plays me. I don’t want him to show up looking wimpy or anything.
Preet Bharara: Do you feel some obligation to get into even better shape? You seem to be in very good shape, but-
Bryan Stevenson: No. I was really thrilled that he wanted to take this on, and it’s exciting. I’m hoping that … I mean, the whole point for me in writing the book was to get more people to understand these issues, and so obviously, film allows that to happen in an even broader way, and I’m excited that people like Michael B. and Jamie Foxx and Brie Larson and incredible, talented actors and actresses are contributing to this.
Preet Bharara: No, it’s amazing. I should say that Michael B. Jordan is one of my middle son’s favorite actors.
Bryan Stevenson: Oh, is that right?
Preet Bharara: Maybe his favorite actor.
Bryan Stevenson: Wow.
Preet Bharara: When he gets a chance to read your book, you might become his second favorite author after being forcibly required to love his father as an author more.
Bryan Stevenson: Yes, of course. Of course.
Preet Bharara: Let’s talk about some of the things that you talk about in the book, your experiences as a death penalty lawyer. Do you like to call yourself a death penalty lawyer?
Bryan Stevenson: Well, I call myself a human rights lawyer because our work has broadened, but I absolutely will answer to the description of a death penalty lawyer. It’s the work that I think rooted me in the kind of human rights work that I do now. I mean, when I was in law school, I was frustrated because I went to law school because I was concerned about racial inequality and the poor and social injustice, and it didn’t seem like anybody was really talking about those issues, and I left and went to the School of Government to pursue a degree in public policy, came back to the law school, still frustrated, and started doing that thing that a lot of lawyers do where they begin to rationalize accepting a career in the law that they know isn’t really good be affirming. It’s not gonna be fulfilling. They give up on their ambitions.
Bryan Stevenson: I was going Atlanta, Georgia to work with a group of human rights lawyers who did death penalty cases that changed my relationship to the law, and meeting a condemned person on death row, getting to see that person’s humanity, seeing the difficulties and the challenges really radicalized my interest in the law. When I came back, you couldn’t get me out of the law school library. I needed to know everything about comedy and federalism and appellate procedure and criminal procedure and constitutional doctrine because I wanted to help condemned people get justice.
Bryan Stevenson: So, in that respect, it is the death penalty that created a portal for me to see the law as a tool to help people, and I tell folks all the time, if I’ve had any success in my career, if I’ve helped anybody as a lawyer, it’s because I went to death row, met a condemned man who showed me the kind of humanity and dignity and decency that made me appreciate that we’re all more than the worst thing we’ve ever done, and that really created a new relationship to what it means to be a lawyer for me.
Preet Bharara: So, you used an interesting phrase a minute ago. You said your relationship with the law, and people think of relationships as occurring between people. What does it mean to have a relationship with the law?
Bryan Stevenson: Yeah. I mean, I grew up in a racially segregated community. I grew up in a community where black kids could not go to the public schools. There were no high schools for black kids when my dad was a teenager, so he couldn’t go to high school in our county. The county was 20-some percent black, and there was never a time when the majority of white people in my community would have voted to end racial segregation and education. It took lawyers coming into the community to make them open up the public schools, to enforce Brown versus Board of Education that changed everything for people like me.
Bryan Stevenson: I got to go to high school. I got to go to college. So, my pathway to becoming a lawyer, to becoming someone who could go to college, was changed by an intervention from people practicing law, and but for those lawyers getting proximate to poor black kids like me, I wouldn’t be sitting here, and that’s why I characterize it as a relationship. People with the ability to enforce the law had to care enough about folks like me to use that ability to create access, and I saw them as people who I had a relationship to because they opened doors for me, and when I got to college and got to law school and was empowered to practice law, I wanted to have a relationship to people who were marginalized, who were disfavored, who were incarcerated, who were condemned.
Bryan Stevenson: It’s not about knowing law and applying what you know for someone. It is really relational, because what people need is sometimes more complicated than just what the law outlines and details. People need justice, and for me, there’s a difference between law and justice. Law says if you don’t file a petition within 30 days, you’re forever banned. That’s not just. That’s just law. So, we’ve gotta figure out what we do to recover from the way in which the law sometimes doesn’t achieve justice, and that’s relational, and that’s why I talk about it that way.
Preet Bharara: So, let’s talk about the relationship between you and some of your clients who have been on death row, condemned men, as you’ve said. What was it like the first time, just for you as a person slash lawyer, meeting someone in that legal and personal predicament? What do you talk about? What is the first thing you say? Do you talk about the law? Do you talk about their family? Take us through that.
Bryan Stevenson: Yeah. Well, I’ll describe the first time I met someone on death row, when I was actually still a law student. I was very nervous. I didn’t think I was equipped as a law student to be meeting someone on death row, but the lawyers asked me to go down and just explain to this person that he wasn’t at risk at execution any time in the next year. They just didn’t have enough people to go meet everybody. I drove down to Jackson, Georgia, which is where Georgia’s death row is. I parked my car. They took me back to the visitation room. I got so nervous because I was persuaded that when he discovered I was just a law student he was gonna be really disappointed, so I kept pacing back and forth, trying to rehearse exactly what I was going to say.
Preet Bharara: And you’re alone, just you?
Bryan Stevenson: I’m alone, yeah. This condemned man, they bring this condemned man into the room, and what I remember about him is how burdened with chains he was. He had handcuffs on his wrists. He had a chain around his waist. He had shackles on his ankles. It took them 10 minutes to unchain him, and I got so nervous. When he was free to walk over, he came over, and I said, “I’m so sorry. I’m just a law student. I don’t know anything about the death penalty. I don’t know anything about criminal procedure or appellate procedure or civil procedure.”
Preet Bharara: You admitted that off the bat?
Bryan Stevenson: Right off the bat. I just didn’t want him to have any false expectations. Then I said, “But they sent me down here to tell you that you’re not at risk of execution any time in the next year,” and as soon as I said that, the man said, “Wait, wait, wait. Say that again.” I said, “You’re not at risk of execution any time in the next year,” and the man said, “Wait, wait. Say that again.” I said, “You’re not at risk of execution any time in the next year,” and that’s when this man grabbed my hands, and he said, “Thank you. Thank you. Thank you.” He said, “You are the first person I’ve met in the two years I’ve been on death row who’s not a death row prisoner or a death row guard.” He said, “I’ve been talking to my wife and kids on the phone, but I haven’t let them come and visit because I was afraid they’d show up, and I’d have an execution date, and I didn’t want them to have to deal with that.” He said, “Now because of you, I’m gonna see my wife. I’m gonna see my kids.”
Bryan Stevenson: I couldn’t believe how even in my ignorance, being proximate, being in a space with someone and trying to do something could make a difference, and that man and I started talking. It turned out we were exactly the same age, same birthdate, same month, same day, same year. He started asking me questions about my life. I asked him questions about his life, and we fell into this conversation, and even though I’d only scheduled to be there an hour, we just kept talking, and it got to two hours, and then we got to three hours, and the guards were waiting outside, and they were getting angry that I hadn’t ended the visit, and finally, they just came bursting into the room, and they were mad. They couldn’t do anything to me, so they took it out on this client.
Bryan Stevenson: They threw him against the wall. They pulled his arms back. They put the handcuffs back on his wrists. I could see the metal pinching his skin. They wrapped the chain around his waist. They put the shackles back on him. I was begging them to be gentler. I said, “Look. It’s not his fault. It’s my fault,” but they just ignored me, and then they started shoving this man toward the door, and they got him near the door, and I remember they were about to shove him through the door when I saw this condemned man plant his feet, and the next time when they tried to move him, they tried to shove him, he didn’t move, and then he turned to me, and he looked at me. He said, “Bryan, don’t worry about this. You just come back.”
Bryan Stevenson: Then he did this thing I have never forgotten. He stood there, and he closed his eyes, and he threw his head back, and he started to sing. He started singing this hymn I used to hear all the time. He started singing, “I’m pressing on the upward way. New heights I’m gaining every day, still praying as I’m onward bound,” and then he said, “Lord, plant my feet on higher ground,” and everybody stopped. The guards recovered. They started pushing him down the hallway, and you could hear the chains clanging, but you could hear this condemned man singing about higher ground, and that radicalized my interest in the law.
Preet Bharara: What happened to that man?
Bryan Stevenson: We ultimately got him off of death row. He’s actually parole-eligible, and I’m hoping he’ll be released very soon. But it was the kind of encounter that caused me to believe, to recognize that I wanted to help condemned people get to higher ground, but I also realized that my journey to higher ground was tied to his, that if he can’t get there, I can’t get there, and that relationship was really formed by the intensity, but the humanity of that encounter with someone who I’d been told was the worst of the worst, and that’s the way it’s been for me with clients. I’ve met a lot of people who are really burned with mental illness, who are troubled, who are traumatized, who have a lot of challenges, but I’ve never met anybody about whom I can say that person is beyond hope or beyond redemption or beyond worth sufficient to care for and to represent.
Preet Bharara: Do you have a view, it sounds like you do, of how deep a relationship a lawyer should have with the client, or is there some reason to have detachment also, both for being able to be clear-eyed about the law and about the possibilities, but also as a matter of self-protection. I imagine you’ve been a very successful lawyer in this area, but not always. So, I just wonder how you as a person deal with knowing that if you are unsuccessful in death penalty representation, this person with whom you’ve chosen to have a relationship and become invested in, whatever he or she may have done, you’re gonna lose that person. How do you think about that?
Bryan Stevenson: Well, I’m pretty committed to being on the care side, and I just think I would want a lawyer, if my life depended on the effort of that lawyer, who is gonna represent me like they would represent their brother, or their father, or their son, or their child, because it’s so hard to prevail in a system that is so weighted in the ways that our system is weighted, that you need someone who’s prepared to go all in. What that means is that yes, if you don’t get the outcome you think is just or appropriate, there will loss. There will be hurt. There will be tears. But for me, that has deepened my commitment to my work.
Bryan Stevenson: One of the first cases that I worked on where we weren’t successful was a man who called me and said, “Oh, Mr. Stevenson, I don’t have a lawyer. I’m scheduled to be executed in 30 days. Will you please take my case?” I tried to explain that I couldn’t. I said, “Look. I don’t have books. I don’t have staff. I can’t take any cases.” We had just opened in Alabama, and the man called me back the next day, and he said, “Mr. Stevenson, I know what you said about not having books and lawyers,” he said, “but I’m begging you, please tell me you’ll take my case. You don’t have to tell me you’ll win.” He said, “I just don’t think I can make it these next 29 days if there’s no hope at all.”
Bryan Stevenson: So, when he said that, I had to say yes, and we worked really hard to try to get a stay, but each court denied our stay motion, and it came time for the execution, which he had asked me to attend, and I went down to death row, completely unprepared for something so surreal. I mean, this was when they were executing people in the electric chair, and they shaved the hair off his body, and they prepared him, and we were having this intense emotional conversation, and we were talking and praying, and finally he said to me, he said, “Bryan, this has been such a strange day.” He said, “All day long people have been saying, ‘What can I do to help you?’” He said, “When I woke up this morning, the guard said, ‘What can we get you for breakfast?’ At midday, they said, ‘What can we get you for lunch?’ In the evening, ‘What can we get you for dinner?’”
Bryan Stevenson: He said, “All day long people have been saying, ‘What can I do to help you? Do you want water? Do you want coffee? What can we get for you?’” Then he said to me, he said, “Bryan, it’s been so strange because more people have said, ‘What can I do to help you,’ in the last 14 hours of my life than they ever did in the first 19 years of my life,” and hearing that really just devastated me, because I was holding his hands thinking, yeah, where were they when you were three and your mom died? Where were they when you were seven and you were being abused? Where were they when you were 11 and you were starting to experiment with drugs? Where were they when you came back from Vietnam traumatized?
Bryan Stevenson: To have someone pulled away, strapped into an electric chair, and burned to death, essentially, was really, really hard, but it ultimately deepened my commitment to recognizing that we should be doing better in this country when it comes to how we create justice. For me at least, the self-protection can’t be creating distance from clients or communities that you’re trying to serve. You may have to do other things. You may have to work out or run or sing, whatever you can do to keep in balance, but I don’t think we should try to protect ourselves if it means being less protective of people who are depending on us, the clients we serve, the communities that we serve.
Preet Bharara: When you talk about the death penalty to people who are either mixed about it or in favor of it in certain circumstances, what is it that you emphasize about it? Do you emphasize the inhumanity of it? Do you emphasize the unfairness of it, the disparities, and do you choose arguments that are emotional or that are logical?
Bryan Stevenson: Well, I think it does depend on the audience, but my first threshold argument is that the death penalty isn’t a question about whether people deserve to die for the crimes they’ve committed. The threshold question in the American criminal justice system is do we deserve to kill, because even if people deserve to die, you have to have a sufficient integrity, you have to have a sufficient reliability before you can get to that, and I don’t think in this country, when we have a criminal justice system that treats you better in too many places if you’re rich and guilty than if you’re poor and innocent, where wealth is determinative of outcomes, that we should be killing people in that kind of system.
Bryan Stevenson: I think when you have a system that presumes black and brown people, dangerous and guilty, because of their color, that we’re gonna be able to get to the kind of reliable outcomes that a just system requires. I don’t think that when we politicize the application of the death penalty, which is what’s happened in so many places in my state, our elected trial judges have had the authority to override jury verdicts of life. So, when we get a verdict, 12-0 for life, the elected judge can override it because he or she fears the next election. When you politicize punishment in that way, I just don’t think you deserve to kill.
Bryan Stevenson: Yes, I can talk about the morality of it. I can talk about the cost of it. We spend hundreds of millions of dollars. California has got nearly 800 people on death row. They’re spending hundreds of millions of dollars. It’s not likely that they’re going to execute a lot of people any time soon. They could use all of that money and invest in public safety and provide better services to victims of violent crime and do all kinds of things, but ultimately, for me, it’s about needing a perfect system to impose a perfect punishment. When you execute someone wrongly, you have no ability to recover from that, and we don’t have a perfect system. My own view is that if we had a perfect system, if we evolved to the point where we value the needs of the poor and we value the needs of people of color, and we dealt with mental illness appropriately, and we eliminated the political factors, if we got to that point, we wouldn’t want the death penalty. We’d understand something about ourselves.
Preet Bharara: Problem solved.
Bryan Stevenson: It would.
Preet Bharara: You mentioned that it is unfair and unjust that the color of the skin of the alleged perpetrator might be determinative of what the outcome is, but you have emphasized also that there’s another factor that maybe even weighs more heavily, and that is the race of the victim. Explain that.
Bryan Stevenson: Well, we have a long history in this county of devaluing the victimization of people of color. We just don’t care as much structurally, systemically about the victimization of black and brown people, and that’s certainly true at the death penalty level, but it’s also true throughout the system. So, the major challenge to the death penalty based on race took place in 1987. It was a case called McCleskey versus Kemp. It was the third case in a trilogy of cases. The Supreme Court struck down the death penalty, of course, in 1972, firm in holding that the American death penalty was biased. It was discriminatory. It was like being struck by lightning. It was applied in an arbitrary and capricious way.
Bryan Stevenson: So, the court declared it unconstitutional. They didn’t say it’s cruel and unusual punishment in all circumstances, and many people thought we would never have the death penalty again, but states, particularly in the South, were quick to take advantage of the fact that the court hadn’t categorically banned it, and so they created a new death penalty, and that new death penalty was upheld by the court in 1976 in a case called Gregg versus Georgia. Now, the NAACP lawyers argued that we hadn’t eliminated bias and discrimination in four years, and we should expect the same disparities. But the court in 1976 said, “No, we’re not going to presume bias and discrimination.”
Bryan Stevenson: That’s what gave rise to this third case, McCleskey versus Kemp, and in McCleskey, a very sophisticated study of Georgia’s death penalty was commissioned. They looked at homicides over an eight-year time period and came up with powerful data that pointed mostly to the race of the victim. You’re 11 times more likely to get the death penalty if the victim is white than if the victim is black. If the defendant is black and the victim is white, you’re 22 times more likely to get the death penalty. No matter what combination of variables that the state of Georgia proposed, race of the victim was the greatest predictor of who got the death penalty.
Bryan Stevenson: So, armed with these data, the lawyers went back to the Supreme Court. They presented that data. The court accepted the data, but nonetheless concluded that Georgia’s death penalty was constitutional, which for me was devastating because I never thought I’d see the court that has equal justice under law engraved on the building say something like they say in McCleskey, which braved on the building say something like they say in McCleskey, which is essentially, if we deal with racial disparities in the administration of the death penalty, it’s going to be just a matter of time before lawyers are going to complain about these same racial disparities for other kinds of felonies, for property crimes, for misdemeanors, for drugs crimes. And, Justice Brennan in his descent ridiculed the court’s analysis as, quote, a fear of too much justice. And, he was right. The court was saying this problem is too big for us. But, it was the second thing the court said that really got me.
Bryan Stevenson: The second thing the court said was a certain quantum of discrimination in the administration of the death penalty is inevitable. That inevitability doctrine still keeps me up at night because I don’t understand how we can be committed to equal justice under law when we concede to bias and discrimination when we say because it’s inevitable, it’s not correctable. I don’t think if we understood this problem as a problem that effected everyone the same, that we would come to that conclusion. That’s where that history of not valuing the victimization of people who are black and brown plays into this. The court just said, “You’re just going to have to accept this.” Of course, that’s very challenging.
Preet Bharara: You speak very knowledgeably about the Supreme Court. In part, that is so because you’ve argued in front of the Supreme Court a number of times. Six, I believe?
Bryan Stevenson: Yeah.
Preet Bharara: What was more nerve wracking, the first time arguing in front of the Supreme Court or meeting your first condemned client?
Bryan Stevenson: That’s a great question. I’m probably going to say meeting my first condemned client because I had no context for that. I had no preparation for that. I’d at least argued-
Preet Bharara: At least there’s moot court in law school.
Bryan Stevenson: Exactly, that’s exactly right. That’s right.
Preet Bharara: Right, it just shows there so much that law school doesn’t teach.
Bryan Stevenson: Oh, absolutely.
Preet Bharara: So much, right?
Bryan Stevenson: Absolutely, yeah. There were so many conventions about arguing in a court like that, that I just was clueless about. I showed up in court that first day, and I was with some other people. I had a pink shirt on. They looked at me-
Preet Bharara: Oh my God.
Bryan Stevenson: In horror. They were like, “Oh my God. What are you doing? You can’t.” I was like, “What are you talking about?”
Preet Bharara: Michael B. Jordan can wear a pink shirt.
Bryan Stevenson: Exactly.
Preet Bharara: I’m looking forward to that scene in the film.
Bryan Stevenson: I would probably correct it. They were like, “Should we run-”
Preet Bharara: You can’t.
Bryan Stevenson: “And, get him another shirt?” I was like, “Oh, it’s not a big deal.” Then, as I’ve evolved a little bit, I thought, oh, that probably wasn’t the thing to do. But, despite that, I felt like I’ve argued cases by that time in my career. I felt like I kind of knew what I was doing. I had no idea what I was doing when I met my first condemned client.
Preet Bharara: Is there any particular argument or victory in the Supreme Court or elsewhere that you thought made the biggest impact?
Bryan Stevenson: I think the cases that we did on children sentenced to life imprisonment without parole were important because they both extended. Until Graham v. Florida and Miller v. Alabama and the companion cases, Sullivan v. Florida and Jackson v. Hobbs, until then, the court hadn’t really found something violative of the Eighth Amendment categorically outside of the death penalty context. The court had struck down the death penalty for children. They’d struck down the death penalty for people with intellectual disabilities, but they had relied heavily on the death is different doctrine that they had developed earlier.
Bryan Stevenson: We were trying to get them to say life imprisonment without parole for children violates the Eighth Amendment, mandatory life without parole violates the Eighth Amendment. That was untested, this idea that we could get the court to go there. So, I’m grateful that the majority of judges recognized that we’re doing something cruel when we condemn children to die in prison, that we’re doing something unusual in a nation that has protected kids in so many ways. You can’t vote. You can’t drink. You can’t smoke.
Bryan Stevenson: You can’t do all of these things, but if you commit a crime, we can condemn you to die in prison just like we do for an adult. That disconnect, for me, was very problematic, and of course I had represented lots of kids. So, yeah, that had a big impact. Not only were the several thousand children who had been condemned to die in prison impacted by the rulings, but it started a conversation about the ways in which we need to protect people who are vulnerable in our system, kids. I’d like to extend that to people who are mentally ill. We have a huge population of people with severe mental illness who are I don’t think adequately protected.
Preet Bharara: Are you worried about the court and who is being nominated to the court, or since you do practice in front of various courts, do you have to be careful about opining on it? And, the particular question I have is you have a rash of recent nominees. Whatever you think about them, people can differ. But, there is an increasing tendency on the part of nominees to not answer the question, was Brown v. Board, which was unanimously decided, is Brown v. Board correctly decided? What do you make of that?
Bryan Stevenson: Yeah, I am worried about the court. I’m worried about all courts, because we’ve come into an era of such divisiveness. We need our courts to be non-political. We need our courts to be committed to the rule of law above and beyond any kind of ideology. Increasingly, I do think there’s a tendency to find people who are ideologues who will retreat from the rule of law if it means protecting a certain kind of ideology. I’m very worried about that. I practice in a state where our judges are elected, and I’ve seen the influence of campaign financing and politicking on the selection of judges in a way that has really worried me.
Bryan Stevenson: So, we need our federal courts in particular to be insulated from those political influences, we need the United States Supreme court to be a place where no one can question the integrity or the commitment to the rule of law. So, yes, questions about Brown and the silence that sometimes provokes breaks my heart. Because, if there’s anything that we can point to in the 20th Century that is a signal of what living in a country dedicated to the rule of law can accomplish, it’s Brown v. Board of Education. I frankly-
Preet Bharara: It should be easy, right?
Bryan Stevenson: It should be really easy.
Preet Bharara: That’s the one that should be very simple and easy, and also politically adroit.
Bryan Stevenson: Yes, exactly. I mean, we should be proud that we no longer ban black and brown children from attending public schools or schools where they have an opportunity to succeed because of their color. But, instead, we’re silent when we talk about the instrument that was used to implement that. Yes, I’m worried about that. I’m actually worried that we couldn’t win Brown versus 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.
Preet Bharara: Do you think we should eliminate the election of judges?
Bryan Stevenson: I do. I don’t think we should make the selection of judges a political litmus test about who is going to express their commitment to majoritarianism the best. Because, being committed to the rule of law means that sometimes you go against the majority, and you protect the rights of the minority. I think election processes make that very hard for people to commit to. You wouldn’t go out and campaign and say, “Look what I did to protect the people who you hate. Look at all the times when I overturned the convictions of people who were accused to terrible crimes.” Nobody is going to campaign like that. They’re going to campaign the opposite. Yes, I think we should have a merit selection process. I’d like to have people who know what judges are supposed to do, who have some experience with that involved in the selection process. Even without that, I’d prefer an appointment process over an election process.
Preet Bharara: What about the election of district attorneys, which is mostly what you have in this country?
Bryan Stevenson: Yeah, yeah.
Preet Bharara: With New Jersey being a notable exception.
Bryan Stevenson: Yeah, yeah. I would like to eliminate that, too. I’m saying this even though we’ve now had the election of what I would call more progressive district attorneys, and that’s been really, really impactful on the administration of justice in some of those communities.
Preet Bharara: Like in Philadelphia, other places?
Bryan Stevenson: In Philadelphia. We’ve seen this here in Brooklyn and Chicago and Baltimore. But, that’s happened because you have now majority black or predominantly minority communities that have sensibilities around the way the justice system has failed those communities now saying, “Oh, we’re going to elect someone who’s responsive to our needs.” The rest of the country is not going to be an option for that. Yeah, I would like to depoliticize decision making in the criminal justice system, discretion in the criminal justice system. I’d rather prosecutors make decisions based on evidence, on fact with a commitment to being fair, that thing we read about in law school.
Preet Bharara: I’m in favor of all those things.
Bryan Stevenson: Yes, but that thing where they said a prosecutor’s job is to do justice, not to win a conviction. I don’t think many prosecutors in this country believe that anymore. I worry about that.
Preet Bharara: Maybe in some places, you’re probably right. We tried every day in our office to say that, to talk about it, and to make clear that everyone else told all the newcomers that’s what it was about. We talked about it in the interview process, and I think it helps a little bit.
Bryan Stevenson: Absolutely, but it takes that kind of leadership and I value that enormously, because we can acculturate people who take on this function with exactly those ambitions. When we have that, we have a system that works a lot better.
Preet Bharara: You have to create a culture in part where you actually can become a pariah in the office not if you lose a case, but if it becomes known that you took a shortcut or you did something unethical. That’s really important.
Bryan Stevenson: Absolutely important.
Preet Bharara: Others, very bad things happen.
Bryan Stevenson: Absolutely, and I think when prosecutors model that for their offices, it makes it easier for them to say to police departments, “You should model that in your department.” Because, it’s the same idea. We applaud, and we reward, we promote the police officer who doesn’t hesitate to pull his weapon when in fact we want people who can deescalate better than anybody to be promoted. It’s the police officer that can go into a really difficult situation and get everybody to calm down and no one gets hurt that we need to be celebrating the most. We want the police officers who don’t think of themselves as warriors, but think of themselves as guardians, to be seen as the model. But, if we don’t do that on the prosecutorial side, then it’s going to be hard to implement that or to enforce that on the police side. Then, you create an environment where everybody is taking shortcuts or everybody is doing the thing that just sustains the status quo. I don’t think the status quo is very healthy.
Preet Bharara: The dynamic you’re talking about is even worse not just in police forces or in prosecutor’s offices, but in prisons and in jails. I have a friend with whom I worked when I was in the US Attorney’s office when we were investigating Rikers Island. He’ll be a future guest on this show. He once said to me, and he started out in the correction system in Texas as a young man, and he said, “I got the sense, it became very clear to me that I could have risen high were I willing to kick ass a little more indiscriminately.” That was the culture of the place.
Bryan Stevenson: Absolutely. No, I see that so much, and I’m very worried about conditions of confinement in this country. We have crowded prisons that are increasingly violent. There is a level of corruption, a lack of accountability that has made what we’re seeing in jails and prisons for me right now. The justice department was very active in that area. I’m worried that there’s been some retreat.
Preet Bharara: Less so, yeah.
Bryan Stevenson: That has made things worse. We call these things correctional facilities, but we’re not correcting anything. We’re actually traumatizing and mistreating people. You want to know where the worst opioid epidemic is in America? It’s in prisons around this country where corrupt officers are bringing in these drugs or allowing other people to bring in drugs. You now have, in some places, 40, 50, 60, 70% of the people incarcerated strung out on drugs, getting into debt, creating violence. It’s tragic, what’s happening there, but in a space where there isn’t sufficient accountability, that just goes on and goes on and goes on.
Preet Bharara: Can we talk about history a little bit?
Bryan Stevenson: Sure.
Preet Bharara: You have made the point that you can’t forget about the past, and you have to remember bad things that happened. You have to come to grips with it. In a lot of ways, America has not come to grips with its past, including the history of slavery and history of lynchings. You got to do something outside of the law, though related to the law, that’s incredibly impressive. You were at the forefront of establishing a museum in your home state of Alabama. Tell us about that.
Bryan Stevenson: Yeah, well, I am persuaded that we’re not really free in America, that we’re burdened by a history of racial inequality that we haven’t addressed, and I think it’s created a kind of smog that’s in the air, and it doesn’t matter where you go. In the northeast, in the south, in the west, and in the northwest, there is this history of racial inequality that’s created a narrative of racial difference that keeps us from being free.
Bryan Stevenson: What I’m interested in doing is talking about that narrative, because I don’t think we can change it if we stay silent about it. I want to talk about the fact that we live in a post-genocide society. I think what happened to native people when Europeans came to this continent was a genocide. We killed millions of native people, and we kept their words, which is why half the states in this country are native words, but we made the people leave.
Bryan Stevenson: We didn’t call it a genocide because we said those native people are savages. That narrative of racial difference that we created to justify that is what allowed us to have two and a half centuries of enslavement. I don’t think the great evil of American slavery was the involuntary servitude or the forced labor. I think it was this narrative of racial difference, this ideology of white supremacy that we created to justify enslavement. We said that black people aren’t as good as white people. They’re not as smart. They’re not this. They’re not that.
Preet Bharara: Because, then even once slavery ends-
Bryan Stevenson: Even when slavery ends-
Preet Bharara: That ideology remains.
Bryan Stevenson: That ideology remains. If you read the Thirteenth Amendment, it talks about ending involuntary servitude or ending forced labor, but it doesn’t say anything about ending this ideology of white supremacy, which is why I don’t think slavery ends in 1865. I think it just evolves. It turns into decades where we have violence and terrorism and lynching that most people have no real awareness of. But, we lynched thousands of black people. We pulled them out of their homes. We burned them. We beat them. We drowned them, sometimes literally on the courthouse square.
Preet Bharara: But, now you’re pointing out the limits of the law, right?
Bryan Stevenson: Yes, exactly.
Preet Bharara: Because, the law can declare a certain kind of bondage verboten, but can’t legislate people’s minds.
Bryan Stevenson: That’s exactly right. What’s interesting about that is congress saw the problem of reconstruction collapsing and emancipated black people being vulnerable. So, they passed a Ku Klux Klan Act. They passed civil rights laws in the 1870s, but the United States Supreme Court struck down those laws and said, “No, states have rights, and this is up to the states.” That state’s rights narrative is what allowed local officials including law enforcement officials to look the other way when these black and brown bodies were dangling from trees and from bridges and from poles. Again, that history has gone on, so that narrative of racial difference is something we haven’t talked about, and I think we need to.
Bryan Stevenson: When I moved to Montgomery, there were 59 markers and monuments to the confederacy, but you couldn’t find the word slave or slavery or enslavement anywhere in that city. I think that has to change. In South Africa, you can’t go there without seeing lots of conversation about apartheid. Their constitutional court is surrounded by monuments and emblems and memorials that are designed to make sure people don’t forget about the injustice of apartheid. In Berlin, you can’t go 200 meters without seeing a marker or stone that’s been placed next to the home of a Jewish family. The Germans want you to go to the holocaust memorial because they don’t want to be thought of as Nazis and fascists forever. They’re trying to change the narrative. There are no Adolf Hitler statues in Germany.
Preet Bharara: As each year goes by, does it become more or less difficult to do this kind of reconciliation and facing of history?
Bryan Stevenson: I don’t think the time makes it harder or easier because these narratives are so widely embraced, this kind of lost cause narrative. In my state, confederate memorial day is a state holiday. Jefferson Davis’s birthday is a state holiday. We don’t have Martin Luther King Day. We have Martin Luther King slash Robert E. Lee Day. The two largest high schools in Montgomery are Jefferson Davis High and Robert E. Lee High.
Bryan Stevenson: Our relationship to this false … this narrative that’s so destructive hasn’t changed very much over the last 30 or 40 years. What I think plays more of a role is our willingness to speak to this problem, to commit to truth and reconciliation. Now, we have a museum in Montgomery called the Legacy Museum: From Enslavement to Mass Incarceration. Now, we have a memorial that honors thousands of lynching victims. I’d like to think it’s created an environment where it’s now possible to talk about enslavement and lynching and segregation in new ways. I think that’s what we have to do all over this country.
Bryan Stevenson: I think there should be a marker at every lynching site in America. I think we should create a new relationship to this history. I think in America, we have this fiction in our head that if you do something wrong, the last thing you should do is say, “I’m sorry.” Because, if you say, “I’m sorry,” the perception is that you’re weak. I think the opposite. I think if you want to be strong, if you want to be a good leader, the first thing you have to say is, “I’m sorry,” when you make a mistake. It creates a new relationship to how we grow. You show me two people who have been in love for 50 years. I’ll show you two people who have learned how to apologize to one another when there are offenses, when something is not well understood.
Preet Bharara: Yeah, apology is a very important part of the vocabulary.
Bryan Stevenson: It is, in healthy relationship, but in our relationship to this history of racial inequality, there’s this resistance, and it breaks my heart. We just had, this past week, we had a newspaper editor in Alabama write an editorial where he is calling for the return of the Ku Klux Klan, and he wants them to go to DC and use lynching to clean up the city. When he was asked about it, he doubled down on it. Here’s my problem, we have two democrats elected to congress from Alabama, Doug Jones, the senator, Terri Sewell, a representative. They immediately said, “That’s outrageous. That’s wrong.” I haven’t heard anybody else say anything. If we don’t feel like we can condemn that, then we have so much work to do in this country.
Preet Bharara: Since you brought up some current events, can I ask you if you have a view on what’s going on in a different state, in Virginia?
Bryan Stevenson: Sure.
Preet Bharara: With the governor who had a picture emerge from his yearbook in blackface, and then another politician there. What do you make of all of this?
Bryan Stevenson: Well, I think these are symptoms of our failure to deal honestly with this problem. We’ve talked a lot about the picture, but we could also be talking about the voting records of politicians who are still in power in Virginia who were doing everything they could to preserve segregation in the 1960s and 70s, who never accepted-
Bryan Stevenson: In the 1960s and ’70s who never accepted integration and who have continued to implement policies consistent with those things. I frankly think that those folks have more to explain than the person in black face. All of them are representative of a problem, which is that we have never dealt seriously with this history of racial inequality. It will show up in very dramatic ways like these photographs, but it will also show up in the way in which we don’t appreciate where we are, what we’re supposed to do, how we recover.
Bryan Stevenson: We need truth and reconciliation in America. I’m not one of these people who feels like if you do one bad thing you never recover. But I am someone who believes that truth and reconciliation are sequential. You can’t get to reconciliation until you first tell the truth.
Preet Bharara: You can’t get to anything without first getting to truth.
Bryan Stevenson: You can’t, you can’t.
Preet Bharara: You can’t get justice, you can’t get accountability, you can’t get anything.
Bryan Stevenson: Absolutely, absolutely. But our aversion to truth telling when it comes to our history of racial inequality is staggering. If some person from another planet came here and tried to study it, they would just be mystified by how we could be so thoughtful and conscientious. We have essentially transitional justice programs all across the world funded by the state department helping other societies recover from these histories of human rights abuses and we don’t do anything in this country.
Preet Bharara: You talk about something else that I find fascinating that you think we need more of in the country. Shame. What do you mean by that?
Bryan Stevenson: I think the way human beings evolve, the way we get to a consciousness where we no longer do the things that we shouldn’t be doing, is we develop a consciousness of shame. 50 years ago, if a woman was beaten by her husband in her home and called the police, it was not very likely that the police was going to arrest that man. They would bring him outside, they’d tell some jokes, they were gonna try to stop the immediate violence but we didn’t actually value the victimization of women in homes the way we should.
Bryan Stevenson: There was a show on TV called the Jackie Gleason Show. He would end the show with this line, “To the moon, Alice.” And everybody would laugh and we laughed at threats of violence against women. Then we started listening to the voices of women and we developed some shame about the way in which we had refused to protect women. We used to say, “Oh you made the wrong choice of marrying that violent man. We don’t owe you anything.” And now, we have a consciousness about that that says, “You know what? That’s shameful. We should not do that.” It has motivated us to create laws, to create protections.
Bryan Stevenson: Now when a professional athlete is accused of domestic violence, it’s likely that that athlete is going to face consequences in ways that wouldn’t be true 10 years ago. The same is true for child abuse and sexual abuse. We used to say to victims of abuse, “Don’t tell anybody about it. Nobody wants to hear about that.” And now we realize the pain and trauma that that causes and we are appropriately ashamed to say that.
Bryan Stevenson: So I think yes, that there is a role for shame. Not as an end but as a process in the faith traditions. This is why the communities of faith need to say more and do more. I grew up in a Christian church and the faith tradition is if you come in and say, “I want salvation. I want all the good stuff that you’re supposed to get. I wanna be able to go to heaven and all that kind of stuff but I’ve never done anything wrong.” They’d say, “No it doesn’t work like that. You have to confess. There has to be this transformation.”
Bryan Stevenson: It begins with just telling the truth about who you are. We’ve done some terrible things in this country to Native people, to immigrants, to African Americans. We passed an Asian exclusion act to ban people from Asian countries. We should be ashamed of that. We put Japanese Americans in concentration camps. We should be ashamed of that. Not because that’s the end, but because it’s a process to something better. That’s what I believe. I just think there’s something better waiting for us than what we’ve experienced in this country when it comes to freedom and justice and racial equality.
Bryan Stevenson: But we’re not going to get there if we already think our best days are somehow behind us. I’ll be honest. I get confused when I hear people talking about make America great again because as an African American I don’t know what decade I’m supposed to wanna relive. Surely not the period of time when I couldn’t vote or when we were being lynched or when we were enslaved. No, our best days have to be in front of us if we are going to be a great democracy.
Preet Bharara: I hope so.
Bryan Stevenson: I hope so, too.
Preet Bharara: Let me ask you about something else controversial that’s going on in the news. The facts are changing but I feel I would be remiss if I didn’t ask you about it, and that’s the set of facts surrounding an actor, Jesse Smollett who made an allegation that he was the victim of a hate crime. Now the Chicago police have arrested him, charged him with disorderly conduct in connection with that being a hoax. And the facts are still developing and unfolding and I’m always very careful from my background to not jump on a story when you don’t know all the facts. I caution people about that all the time, but is there anything in that incident that strikes you in so far as how people of different races talk about crime or talk about race?
Bryan Stevenson: Yeah, I think three things come to mind. I think we’ve all seen this retreat from truth telling as the first requirement of news. You know, we have people just making up things and by their status being allowed to say those things without any real repercussions. Whether it’s the size of an inauguration crowd to who’s responsible for what, there’s a part of our culture that has moved away from seeing truthful reporting about what happens to you as a critical component of how you’re taken seriously. I think that has undermined a lot of things.
Bryan Stevenson: I’ll also say that when you’re marginalized, when you’re excluded, when you are disfavored … We had this thing in the African American community where we’d say to each other sometimes, “You know, being black will make you crazy.” Because you have to reconcile yourself to all of these things that are so irreconcilable in a just place you can’t rationalize things. I think for a long time the expectation was that is you’re black, if you’re a person of color, or if you’re gay and you’re trying to change the narrative, you have to be perfect. You cannot make mistakes.
Bryan Stevenson: I don’t think that’s reasonable. If it turns out to be that this allegation is not true, was created, it’s not the first time that’s happened. The Scottsboro boys were almost executed because someone made up an allegation against them of being raped and we had a whole national discourse beyond that. We ultimately came to the conclusion that they were innocent, that they had been wrongly accused. But nobody ever said, “Ruby Bates who made that accusation should be put in prison for that.” That’s just not our consciousness.
Bryan Stevenson: I think we have to be honest about the way in which we have used the system of justice that we have to sometimes advance things that are not consistent with true justice. I think it’s terrible. I feel bad if it is proved true that this is not reliable. Because we don’t need false narratives like that when people who are gay are being targeted and victimized. I would hope no one who hears this story begins to doubt that being a sexual minority, being gay in many places does make you a target. I hope people don’t think that people of color are somehow no less at risk of being presumed dangerous and guilty.
Bryan Stevenson: It’s disappointing that someone would feel the need to do something like that. But we’re in a place where people have access to platforms and resources and sometimes don’t have the responsibility, the set of skills they need to be accountable and thoughtful about that.
Preet Bharara: One of the things that I love about the career you’ve had is that you’re an accomplished lawyer and you’ve argued in court and you’ve represented clients in specific matters. But then as you have been saying on this program, there are other things that need to happen also. Remembrance, and you’ve done a little bit of that through your museum. You talk not only in courtrooms but you also talk on podcasts and you wrote this book that’s of great influence.
Preet Bharara: So I guess my question to you is do you use a different method of persuasion or think about persuasion differently when you’re in a courtroom and arguing emotion or arguing appeal than you do when you’re talking to people outside the courtroom? It is something different or is there something the same about those things?
Bryan Stevenson: Yeah. I think you have to talk to the audience that you’re in front of, right? As a lawyer I wanna know who’s on the jury, I wanna know who’s on the bench, and I wanna find out as much about them as I can because I need to go where they are and get them to follow me some place where they can in my judgment, make the right decision, make the just decision. If I pretend like it doesn’t matter who they are and where they are, what their presumptions are, and just insist that they come where I am, I’m not gonna be very effective.
Bryan Stevenson: I think that’s true whether you’re in the court or out of the court. I speak in faith spaces and I want to talk about my faith in those spaces. I speak in other places where people don’t respond as well to the faith tradition and that’s not gonna be a priority for me. I think the goal is to reach people where they are. I don’t think we should imagine that if we change laws that things will change, it’s that heart and mind thing.
Bryan Stevenson: I think narrative is really powerful …
Preet Bharara: In both places.
Bryan Stevenson: … In both places.
Preet Bharara: Inside and outside the courtroom.
Bryan Stevenson: Absolutely. Too few lawyers appreciate the power of narrative. They rely on facts and law and they’re disappointed by the outcome because you haven’t given people a path to travel, to follow you to that right place. It’s really powerful. And I think outside of court we have to use narrative more effectively and that’s why we want to tell the stories of people who were enslaved and who were lynched and who had to overcome segregation so that we can appreciate the power of that struggle.
Bryan Stevenson: But yeah, I think you have to, for me at least I wanna go where people are. If I’m talking abroad and there are a set of issues that are distracting people in a particular country, then I wanna know what those issues are so I can be responsive to that even as I’m advocating for something broader.
Preet Bharara: Can I ask you a personal question?
Bryan Stevenson: Sure.
Preet Bharara: Tell us about the influence of your grandmother because I find that fascinating.
Bryan Stevenson: Yeah, my grandmother was a remarkable human being. She was the daughter of people who were enslaved. My great grandparents were born in slavery in Bowling Green, Virginia, Caroline County and being raised by people who had been formerly enslaved really changed her world view. She was just an amazing human being. She was a force of nature. She was tough, she was strong, but she could be kind and loving.
Bryan Stevenson: I tell people my grandmother was the end of every argument in our family. She was also the start of a lot of arguments in our family. But she had this tactical, strategic way when I was a little boy and integration came, she was worried about us and so she started coming up to me. She would give me these hugs and she would squeeze me so tightly I thought she was trying to hurt me. And then she’d see me an hour later and she’d say, “Bryan, do you still feel me hugging you?” And if I said no, she would jump on me again.
Preet Bharara: So you learned to say yes.
Bryan Stevenson: Not only did I learn to say yes, every time I saw her the first thing I would say is, “Mama, I always feel you hugging me.” And I didn’t appreciate what she was doing until much later. She worked as a domestic her whole life. She lived into her 90s. When she got into her 90s she fell, she broke her hip, she was diagnosed with cancer, and she was dying. I was a college student at the time.
Bryan Stevenson: I went to see her and I was just heartbroken that this was gonna be my last conversation with my grandmother. I was sitting there, she was on a bed, I was holding her hand. I was just saying all of this stuff and then it was time for me to go. I stood up to leave and just before I walked away, my grandmother squeezed my hand and she opened her eyes and the last thing she said to me, she said, “Bryan do you still feel me hugging you?” Then she said, “I’m always going to be hugging you.”
Bryan Stevenson: There have been times in my career and my life where I have felt the presence of that woman embrace me, and there are a lot of grandmothers out there that understand the need of giving their children and grandchildren something that endures, something that transcends, and on that scale I put my grandmother way, way up there. She was an amazing human being. My great grandfather who was enslaved learned to read even while he was in slavery, even though it might have cost him his life. He taught her the value of reading.
Bryan Stevenson: There were no schools and all of that kind of stuff, but she knew how to read. She was so proud of the fact that after emancipation people would come over to their house and her father would just read the newspaper in a house full of people who couldn’t read. It gave her such pride, and so she gave that to my mother.
Preet Bharara: You said once in your household gifts were microscopes not footballs.
Bryan Stevenson: Absolutely, that’s exactly right. No my mother, my family, we didn’t have a lot. There were times when the water wasn’t working the way it’s supposed to be, you couldn’t do this, you couldn’t take a shower, you couldn’t take a bath, but my mother went into debt to buy us the World Book Encyclopedia. We didn’t have a lot of things. We didn’t have air conditioning. We didn’t have a TV. But we had that World Book Encyclopedia. If my family was upset, if my parents were upset, I knew that if I went over and got one of those books and started reading, it would change the dynamic in the space.
Bryan Stevenson: Because in our family there was something hopeful about this ability to explore new worlds through books, through words. That’s a gift that my grandmother gave my mother, my mother gave to me. If I’ve had any success in these professions that require study and application of reason and all of that, it’s because I was loved by these people who thought it not wasteful to not push themselves to create opportunities for their children to read.
Preet Bharara: Well you said something else about reading which I totally agree with and never quite thought of it this way. That by giving people who might not otherwise have opportunities to read, you were giving them a gateway to something that they wouldn’t otherwise have and that’s imagination.
Bryan Stevenson: Absolutely.
Preet Bharara: Which is not just about creative imagination. It’s not just about understanding the Harry Potter world. But in the real world when they get older, they can look at something and see it for what it is and think how it could be different because they have learned the power of imagination from books.
Bryan Stevenson: Absolutely. You become someone who believes things you haven’t seen, which you have to if you’re going to change the world, if you’re going to create more justice. I never met a lawyer until I got to law school. I’d just never met a lawyer, I had to believe I could be something I’d never seen.
Preet Bharara: Lucky you.
Bryan Stevenson: Lucky me. When I didn’t meet the first month, I was pretty hard but it’s just that kind of relationship you develop with the world around you. You’re right, reading will allow you to imagine things, to think about things, to believe things that can be created even if they haven’t yet been realized.
Bryan Stevenson: And science, in science it’s amazing to me how scientists absolutely accept that. They innovate, they discover things. They believe that just because we haven’t seen that planet yet that it could still exist. We think of science being the opposite of that but it’s actually a fulfillment of that hope. That’s, if anything, been what’s defined my career. I just believe you have to stay hopeful.
Bryan Stevenson: I actually think that 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.
Preet Bharara: Why do you think that a lot of politicians don’t practice the politics of hope when all the evidence shows it’s very powerful? Is it because they don’t know how to do it and the second best way to motivate people is through fear? So you have the runner up to hope is fear and so a lot of people don’t know how to practice hope so they do fear?
Bryan Stevenson: I do think that. I think that what we’ve seen succeed in too many situations are the politics of fear and anger. And I think it’s easier frankly to try to govern people through fear and anger than to inspire people through hope and aspiration and commitment to caring about one another. It’s harder, you know, to be hopeful when we’re dealing with very real problems.
Preet Bharara: You also have to authentically feel it.
Bryan Stevenson: Absolutely.
Preet Bharara: Everyone feels presumably some amount of anger and frustration and it’s about conquering that and appealing to your better self and some people can’t do that.
Bryan Stevenson: Absolutely. And what’s bizarre is that we know in our personal relationships that we shouldn’t make judgments about our children when we’re angry with them. Or we shouldn’t make judgments about other people when we’re fearful about them. That to really get to a good judgment we have to kind of push those things aside which can distract us from really seeing people clearly.
Bryan Stevenson: We see this obviously in courtrooms and yet you see so many elected officials, so many politicians reaching for those very powerful … I think fear and anger are the essential ingredients of oppression, of treating people … Because you accept things you wouldn’t otherwise accept. You tolerate things you wouldn’t otherwise tolerate, and that’s why I think rejecting the politics of fear and anger is so important. You don’t have to do it in the abstract. It can be replaced with something hopeful.
Bryan Stevenson: We have the highest rate of incarceration in the world. I hope that that changes. I don’t think our country can be a great country if we have one in three black male babies born in this country expected to go to jail or prison, if we put six million people on probation and parole. I think we should hope for something better than to be the world’s leader in incarceration. And there are a whole host of things. I think we should hope for something better for our planet in terms of climate change and the kind of spaces that we create for our children.
Bryan Stevenson: I think we should hope for something better than the kind of income inequality that we see all around us. We should hope for something better than seeing struggling families trying to cross borders because they’re so desperate and traumatized in their home spaces that they would do anything to get into this country. We should hope for something better than what we’re seeing, and I think that’s the only way we progress. That’s the only way we evolve. That’s the only way we become a truly great society.
Preet Bharara: On that hopeful note, Bryan Stevenson, thank you for that. Very inspiring.
Bryan Stevenson: You’re very welcome.
Preet Bharara: All your work is inspiring.
Bryan Stevenson: Thank you.
Preet Bharara: I’m glad we got this time after a long while.
Bryan Stevenson: Thank you, my pleasure.
Preet Bharara: Thanks, Bryan.
Bryan Stevenson: Yeah, thanks.