Preet Bharara: Hey folks. Quick programming note. CAFE Insider will be off next week. We’ll be back soon with more analysis. From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: How are you Anne?
Anne Milgram: I’m good, Preet. How are you doing?
Preet Bharara: The same. My parents will call from time to time and they’ll say, “What’s new?” And be like, “With me personally, there’s nothing new.”
Anne Milgram: Nothing.
Preet Bharara: Yeah. I mean, we’re just home every day and I’m like, everything you know about what I’m thinking, you can listen to in the podcasts or see in my Twitter feed. But I don’t go anywhere, I don’t see any people, there are no events. It is what it is, following the news, much of it terrible, and reviewing it with you is what I do.
Anne Milgram: Yes. I try to get outside too, but yes-
Preet Bharara: Yes, I do that also.
Anne Milgram: Generally I feel similarly.
Preet Bharara: Since we last spoke, there has been an update in the charges relating to the George Floyd case. Should we talk about that a little bit?
Anne Milgram: Yeah, let’s go into that because I think we sort of talked a little bit about what we expected to see, but obviously it’s changed and it’s worth really going through and setting it up for… I anticipate some guilty pleas. We’ll talk about that in a minute, but it’s very possible.
Preet Bharara: You do, interesting.
Anne Milgram: It’s very possible we also see a trial. Let’s talk it through because it’s very possible, I think, that we end up following this case for some time.
Preet Bharara: Let’s recap what we said last week. Remember that Derek Chauvin was charged with murder in the third degree and manslaughter in the second degree. And you and I both agree that murder in the third degree was maybe not the top charge and that murder in the second degree, having looked at the Minnesota statute, was totally viable. But there are two sections to the second degree murder statute in Minnesota. One is for intentional murder, which you and I both argued you could charge for a lot of reasons, including how long the knee was on the back of the neck, including because-
Anne Milgram: And officer Lane saying, “Should we turn him over,” early on.
Preet Bharara: Right. And there was no pulse and at some point intent must have been formed. But that’s not what the attorney general in Minnesota charged. He charged murder in the second degree under the second part of the statute, which is for unintentional murder.
Anne Milgram: Yes. And it’s a version of felony murder. The maximum sentence is imprisonment of not more than 40 years, and basically you don’t need to intend the death. And that’s important here. What instead under the law of second degree murder, under this prong of it, what they’ve charged is that officer Chauvin, without the intent to effect the death of any person but while committing or attempting to commit a felony offense other than a certain list of offenses, caused that death. Here the underlying felony, it’s a version of felony murder which we talk about sometimes if someone is killed in the course of or dies while you’re committing a felony, you can be held liable for. If you’re intending the commission of that felony, you can be held liable under the law for the death.
And so here what they’ve charged is that officer Chauvin was committing the crime of assault in the third degree, which is essentially an assault with the intent to cause serious bodily injury. Substantial bodily injury is the phrase they use in Minnesota. And that while doing that, George Floyd died. And so, it’s important because what it means at trial is that the government does not have to prove, even though again I think you and I can argue very strongly that the government could prove intentional murder, but here they’ve given themselves a lesser burden. It’s the same sentence. And so, what they have to prove is that Chauvin intended to cause substantial bodily harm to George Floyd.
And the reason that’s important is that in terms of defenses that former officer Chauvin will have a trial, this really sets them up to have, the government has a lesser burden to prove, right? They don’t have to prove intent to kill, they just have to prove intent to commit this substantial bodily harm. And again, it’s the same elements that go towards the intent to kill. You’ve got the knee on the neck, you’re using a police position that is not allowed to be used. You’ve got someone saying, “Should we turn him over?” You’ve got nine minutes of time. You’ve got someone checking for a pulse, he doesn’t stop.
And so all those facts, it’s a very, very strong case and I think it was a smart decision by the AG to charge it like that even though I personally do think you could prove intent. One of the rules you and I always talk about is, don’t give yourself a harder case or a higher burden than you need to have, particularly because it’s the exact same sentence here.
Preet Bharara: Yeah. You get all the same bang for the same buck. And so why not do that? And I think you agree that the way it’s charged and pled in the complaint, it’s a pretty strong case.
Anne Milgram: I do agree. And I think also George Floyd’s family and others called for first degree murder. We talked about that last week. I think the AG was smart to go with second degree. I think it would have been very hard to prove premeditation and would have just set up a ton of issues at trial. And so this is very clean. I think the case is very strong.
Preet Bharara: The weird thing is, in many jurisdictions you would have a problem charging this kind of felony murder so that… not to get too much in the legal weeds, but using an assault to also be a murder, right? Sort of bootstrapping a third degree assault, which is the act that caused the death, is also the felony that allows you to charge the second degree murder. Often felony murder is something like you’re committing a robbery or you’re committing a sex crime, or you’re committing a burglary or some such thing. And in the course of doing that felony, you cause a death through some act, which is a separate act. Here in Minnesota clearly there’s no problem with that, so it’s a smart move to charge it this way.
Anne Milgram: Yeah. Agreed. And now the other officers were charged. We talked about what would happen with the three other officers as well. They were charged under an aiding and abetting theory. That basically means that they were helping Chauvin as part of the commission of this crime that carries the same exact sentence as the underlying crime on second degree murder, only on second degree. And again, it looks like the thrust of the trial will be around the second degree murder, that that will be sort of the government’s theory. The case will be Chauvin intended to cause this substantial harm to basically hurt him this level of injury, and that in the course of that he actually killed George Floyd.
And so, again, they’ll take off the table arguing over whether he actually intended Floyd to be killed as a result of his actions. It’s a way of sort of structuring and framing the case. And remember that the second degree manslaughter relates to negligence, right? Like creates an unreasonable risk and consciously took chances of causing death or great bodily harm to George Floyd. And so, it really sets it up for a very clean trial and I think they’ve set themselves up very well.
Preet Bharara: Yeah. We talked last week about how we thought that the other three officers could also be charged with second degree manslaughter. They weren’t, they’re charged with aiding and abetting that. And in a similar way to the second degree unintentional murder, it’s the same bang for your buck. You charge someone with aiding and abetting a crime, you’re subject to the same maximum sentence as if you committed the crime itself. So once again, lesser burden.
Anne Milgram: Right. And at trial you’re able to say, “Look, they may not have been the ringleader, but they were there and they helped,” right? The other officers held down Floyd. They didn’t stop it. They had a duty to stop it. It’s a sort of easier level of proof, I think.
Preet Bharara: Yeah. We should talk about what the defenses are for the other three. And this is where I think it’s a little more difficult not because the law is tough, not because the jury instructions are such that a jury should let the other officers off the hook given what the facts are. But there are some things that may engender some sympathy, depending on who the jurors are, with respect to a couple of the officers who were pretty junior. They were pretty much rookie cops. I think one of them, officer Thomas Lane, was on day three or four of duty. I don’t think that eviscerates guilt because you have the training to be an officer and you need to be responsible from day one. You don’t get a sort of a buy on committing crimes and violating your oath that changes over time. From day one you need to be obligated to do your job and to perform your duty properly.
But I could see a situation in which if all four officers went to trial together, and they may not. They could be separated into different trials. But you could see, depending on what the jury pool is, a play for sympathy for this particular cop saying, “Well look, Derek Chauvin is the principal bad actor here. He had 20 years on the job. What did you want my guy to do? It’s the typical ‘I was just following orders’. What was I going to do? Overrule my training officer?” What do you make of that defense?
Anne Milgram: There’s a lawyer who’s representing Thomas Lane, one of the officers who’s been fired, he was a rookie. He basically said in court during the arraignment on the charges that Mr. Chauvin was a training officer for new police officers. What the lawyer said is that on the day that George Floyd died was Mr. Lane’s fourth day on the force. “They’re required to call him sir,” the lawyer told the court. “He has 20 years experience. What is my client supposed to do but follow what the training officer said? Is that aiding and abetting a crime?”
And so, I think you’re right. That is absolutely going to be the defense that two of these officers were junior. Officer Alex Kueng had just come on the force in I think late last year. But because of, I don’t know why, but basically he hadn’t done a full shift or he’d only done three or four full shifts. The argument’s going to be, these are junior folks. They’re out for their first days. They’re with a training officer. They believe that this is the process.
Here’s the problem with that in my view. My problem with that is that one of the issues we’re talking about with Minneapolis is a bad culture in the police department that allows for racism and bias and a lack of accountability for officers who violate rules and procedures and violate the law. And so you’re talking about, like that’s the culture of the department. These guys are not a part of that culture yet. They’re literally on day three or four. So to me in many ways, they’re the closest to the training, they’re the closest to knowing that you cannot put someone down in a prone position, and they haven’t been indoctrinated into this culture. So in some ways they are the right people to basically step up and say, “You’re not allowed to do that,” whether it’s a senior officer or not. So, I think it cuts both ways.
Preet Bharara: Yeah. Look, people can get too wrapped up in the jargon and the terms of police training and other things. But the fact of the matter is, any normal human being with a sense of right and wrong and common sense who was in that place at that time understands that when you have a handcuffed suspect who is not resisting, who ceases to be mobile, who looks like he might not be breathing anymore and who has no pulse, you understand that you need to stop that. I would expect the prosecutors to say something like that. You get carried away with this idea of commanding officer, training officer, and more experience or less experience. But every normal, decent, good faith human being would understand that what was happening there was terrible and that a young man was being killed.
Anne Milgram: Yeah. And I think also that what a prosecutor might say is like look, in the instant officer Kueng holds down George Floyd’s back, former officer Lane held his legs. There’s a moment in which you could see a prosecutor saying like, “Look, these situations are fluid. There’s 10 seconds, 20 seconds where the officers are getting their bearings. They’re rookies and they’re trying to understand what happens. But there’s not nine minutes of that.” And so to your point, I think anyone there, and those officers, they knew there was something wrong. Officer Lane at one point says, should we turn him over? Officer Kueng checks for a pulse later? And so, they know there’s something wrong, they just failed to act. And by the way, I should say this. It is a hard case. It’s a hard because they are complicit in the force, two of them. They are not the senior officer, they are following. And some of this is a failure to take action and stop Chauvin.
Preet Bharara: Yeah. We see this all the time. We see this all the time in life. I used to speak on a regular basis to first year business students at Harvard Business School and other places. And this reminds me of the thing that I would say to them. And what I would tell them is, look, you’re all good people in this classroom. You’re all going to go on to big things. You have no intention to do anything unethical or immoral or illegal, but you’re going to show up at someplace, some company, a hedge fund or a trading firm or whatever, and you’re not going to do anything bad, but someone near you who’s more senior is going to do something that causes you to wonder, is that insider trading, is that unethical, is that cooking the books in some way?
And your first inclination is going to be, well, that seems wrong, in the same way that one of these officers said, “We should turn him over and check for a pulse.” And then that’s a moment of choice for you. And what I worry about and what you see often in life is that you as a good person and a junior person think to yourself, well, the senior person must know better. They seem like a pretty good person. This seems like a legit place. I don’t want to rock the boat. Who am I to say something about this? And then you quietly go along. And in a sense you’re enabling the crime.
And if in your judgment, given that you’re a good person and you haven’t been yet swallowed by a terrible culture like these officers had not been yet, the junior ones, the point you make, that’s the moment of truth for you. And if there’s one thing I would tell these students to remember going forward is when you have that moment, that your good self tells you that this is bad and I should do something about it, don’t suppress that voice in your head. Do something about it. And these officers didn’t do that.
Anne Milgram: Yeah. And look, this is a great point. I mean, we’ve seen it. You and I both seen it in countless cases, particularly political corruption cases where you see someone who says, “I had no intention of taking bribes, but one day somebody left a wad of cash and I took it. And from that moment on, everyone knew I was for sale.” And what’s really, really important, and I think it shows the corruption internal to the police department here is, Chauvin is a training officer, right? He’s got 18 prior complaints for use of force, two had been substantiated. He’s out there. This is day four and he’s using… I mean, obviously he’s murdered George Floyd. But under any version of events, he is using an unacceptable way to pull someone down. Even if Floyd hadn’t died, he’s setting the tone for how you treat people in the community. And that’s what those officers are seeing.
So the fact that they didn’t stand up and stop it on day one, that is bringing them into the culture of a department that allows the use of force indiscriminately. And so when people talk about or someone talks, including the President of the United States, these are just bad apples, it’s not about bad apples, it’s about culture. There are obviously also bad apples in the world, but there is a cultural issue here when it comes to policing that we are seeing these young, new officers basically being pulled into the vortex of a problematic practice. I mean, obviously it’s devastating, the results here are tragic and heartbreaking. But I think it also speaks to a bigger issue, and we’re going to talk about what Minneapolis is doing, but I think it’s important that it not just be seen as the officers, that it be seen as in the department.
Preet Bharara: Well, that’s not the only thing that happened. I don’t recall if we talked last week about the fact that the state AG’s office has also brought a more general action against the Minneapolis Police Department.
Anne Milgram: That’s right. Yes. The Department of Human Rights filed civil rights charges against Minneapolis, the police department, and they’re looking to ban chokeholds, neck restraints. They’re also talking about doing a pattern or practice investigation of the department. And again, this goes back to, we talked about usually the Department of Justice would do one. They did one in Ferguson, Missouri. They pull records, they look at complaints against officers and they look at, “Is there a pattern or practice of discrimination against people of color within the department and is that basically problematic practice?” And then they come up with recommendations.
And so, that’s how you sometimes see consent decrees come out, which is you must do these 10 things, and then you end up with a federal monitor. They’re not doing a federal version, they’re doing a state version. I think it’s right to do that investigation. I also will just say, I doubt that they have any expertise in it. And so I would look for them to hire outsiders or folks to come in and assist them with something like this investigation.
Preet Bharara: Yeah. And further to your point, the Department of Justice doesn’t seem to be interested. Bill Barr oddly has said:
Bill Barr: We stand ready to act if we think it’s necessary, but I don’t think necessarily starting a pattern or practice investigation at this stage is warranted.
Preet Bharara: Even though there had been a lot of instances of this before, even though the neck restraint has been used to ill effect in Minnesota before, even though there’s a lot of reason to at least open an inquiry, it doesn’t mean you necessarily bring an action. But the idea that given what’s going on in the public focus and the tragic death of George Floyd and other incidents, I think a lot of people, myself included, find it kind of bizarre and unfortunate that Bill Barr doesn’t seem to have any interest in doing what the department would normally do, which is open up a pattern or practice investigation here.
Anne Milgram: Yeah. And local jurisdictions rely on the federal government and the Department of Justice to do it both because they have expertise and they’ve done it in multiple police departments. For most police chiefs or mayors or city council people, this is their first experience with this kind of thing. When you look at the section of the Department of Justice, the special litigation section that does this, they do this all over the country. And so they look for that level of expertise and for an understanding of they know what data to pull, they know what questions to ask, they’ve been through it before and they know what reforms have worked in other jurisdictions, what a consent decree might look like.
And so, the normal course in Democratic and Republican administrations would be to send out folks to do an inquiry. Again, we’ve talked a little bit about what has been different under Democratic and Republican administrations is that Democratic presidents have used consent decrees, which is a lawful agreement that you can walk into court and say somebody is not doing this, I need this to be enforced, versus a memorandum of understanding, which you then would have to sue to get into court to get somebody to comply with it. It’s a lesser hammer under the sort of memorandum of understanding, which was what was used mostly in the Bush administration and has been used more in the Trump administration. But again, they would always go out and ask these questions and do this inquiry.
Preet Bharara: One last point about the other three officers that I thought was interesting. One of them, I don’t know if I’m pronouncing it correctly, Tao Thao, his lawyer has said that his client, officer Thao, is cooperating with the government, cooperating with prosecutors. That’s interesting because ordinarily that makes you think, well, you’re going to have a stronger case against the main defendant, officer Chauvin, and the others, and also puts him in a position to perhaps get leniency.
But I wonder also, and I’m curious what you think, how much you need the cooperation of an officer when basically everything that happened was videotaped and you have a lot of lay witnesses who were present and you have officer cameras too. It’s not a situation where there were clandestine meetings among plotters of a robbery or a murder and you want somebody who is inside those secret meetings to testify about them because you can’t otherwise get it. Here, everything is pretty much known. It’s probably helpful to get an officer to testify?
Anne Milgram: I think it’s really important. I would say, I mean, you’re right, having the video changes it a little bit. When I was in the civil rights division, you always wanted a police cooperator. We didn’t have video incidents. At that moment in time there were no body cams. And so, everything was relying on eyewitness testimony. And so it was really important to have somebody who was on the force basically saying, “I was there, it was wrong. Here’s what I heard being said. Here’s what was done.” Here’s why it’s important here. There are a number of reasons why. First of all, yes, it’s on camera, but you don’t hear a lot of the conversations or the sounds. So having the officer say what was said, what was done, whether they had any internal conversations, that’s important. We may not know the universe of what’s happened.
We also know that they have conversations after it happened as to what happened. What are we going to say? What are we going to do? The officers weren’t charged with filing a false report. I thought they would be. It could be that the AG and the prior DA just wanted this to be as clean as possible and be about that use of force. But there’s going to be other evidence that an inside cooperator who’s part of the force can be very helpful in providing. And then you also have somebody who’s at the scene of the crime saying, “This wasn’t right. We did something that was wrong.”
And so, what’s interesting about the officer that you just mentioned, officer Tou Thao, is that he did not put hands on George Floyd; from what it appears in the indictment that it was officers Lane and Kueng who had put their hands on George Floyd. It’s going to be a very interesting thing to hear what his view is. I think it helps the prosecution a lot. Again, is it essential with the video? No, you would go forward without it. But when it comes time to get into the trial, I think if they will cooperate him, we will see a guilty plea from him and that he will testify. He’ll be one of the lead witnesses.
Preet Bharara: Yeah. That’s where I think is the most important thing further what you said, that you will have one of the defendants not only say that what happened was wrong, but will have pled guilty presumably and said, against his own interest, what happened here was a crime and I was involved in a crime. And although there are jury instructions that caution jurors to make sure you don’t attach liability to other people just because one person committed a crime, but the psychological power of somebody who is part of the bad act confesses to the crime does a lot, I think, in the minds of jurors to say, “Oh wow, here’s an officer who confesses and says this was a criminal act and has remorse and takes responsibility for it.” That puts a big mark on I think the other people in the case, whether or not you need it so much for the evidence.
Anne Milgram: I think it helps so much with the jury to basically see that someone has walked across the blue line and has basically said like, “Look, this is not what police officers are supposed to do and I take responsibility.” So I think it is really important. I think it actually shows very good work also by the AG’s office that they’re having those conversations and trying to cooperate someone. Look, I think that if the AG’s office will give plea deals, and this may be very controversial for me to say this in some ways, but I think that the officers who take responsibility will see significantly less sentences. You’re looking at, under murder two, the maximum sentence is 40 years. That’s a long time. And so, it is possible that we see decreased to assault in the third degree, it’s possible that we see sentencing breaks, I don’t know, but it would be hugely valuable for the AG’s office to be able to try this case with at least one cooperator.
Preet Bharara: Should we move on, talk a little bit about the response-
Anne Milgram: Yes.
Preet Bharara: By the government around the country and also protestors who are continuing to march in the streets and to put a very bright light on the issue of police brutality and racism in this country. There is a new slogan that has gotten a lot of attention that some people are using, particularly in Minneapolis. And that is, defund the police. It’s kind of controversial for a lot of reasons. I got into a discussion with my daughter the other night about the phrase.
She says, and other people say, “Well, the people who are saying defund the police, they’re saying not abolish the police department, not get rid of all police, not to take away all their funding. But they’re talking about a clear-eyed reexamination of where the money goes, diverting some things to other social programs, making sure that the funding of police departments is in line with what reality is and in line with what proportionality is and everything else.” But that’s not the slogan. So we can get into what the policies are and what reforms maybe are necessary. But should we spend a moment talking about the utility of that slogan? And by the way, none other than Al Sharpton himself said on TV the other day:
Al Sharpton: I think that the slogan may be misleading without interpretation.
Preet Bharara: It’s always been my understanding that a slogan is supposed to speak for itself. And if it requires you to do a lot of Googling and read a bunch of articles to understand what is really meant aside from the plain language of defund the police, then I think you have a problem. You and I both worked in the Senate. When you worked in the Senate and when some senators stood up and said, “We need to defund X, we need to defund the planned parenthood, or we need to defund some other institution,” that meant zeroing it out. What do you think?
Anne Milgram: This is one of the challenges, which is that I’ve now read a ton on this and I’ve talked to people about it. Your daughter, her argument is the argument that I think a lot of people are making, which is, we just mean let’s change the way we budget the police. The one thing that we have as power, we’ve tried all these ways to reform police departments and they failed. We’ve tried use of force policies, we’ve tried training, and it hasn’t worked to eliminate racism and bias in the police departments. The one piece of power that we hold is the power of the purse strings. The city council, the residents of a community, we pay for the police, let’s control that. And by the way, it is a reframing. If we want to talk about our political experience, it is a reframing of the issue away from the reforms in the past which were all put on top of the existing ways that police departments run.
Meaning, okay, let’s change the training, but let’s keep basically the piping and the foundation of the police department the same, right? We’re not really changing the infrastructure, we’re changing some of the things that the department does. How do we do discipline? How do we do training? And this is an argument of like, let’s grab the reins and let’s wholesale revisit, what do the police do and what are we paying for and should we be paying for police departments that are actually a threat to black lives in the United States? And so, there’s an argument in that framing that I think is really powerful to basically say, stop talking about training. Look, even a lot of people that I really respect, when this first happened, they came out talking about training and about use of force policies. And I think that those are really important, it’s simply not enough to eradicate racism and bias from police departments. There’s a really powerful argument around the framing.
The problem on the defund the police issue in my view is that it is being pushed, not just by people who are making the argument, which I think is a powerful one of let’s take the purse strings, let’s actually pay the police to do the things that police need to do and let’s take everything else out. If there’s a call for somebody who needs help with addiction, let’s send a counselor. If there’s a homeless individual on the street, let’s send a social worker who does homeless services. That makes a lot of sense, which is, when do you send a gun and badge, and even then reforming the way that the gun and badge works, but understanding that we can separate out a lot of the police powers and frankly deescalate a lot of the ways in which police are interacting with communities.
That’s one argument. The other argument is abolish the police altogether. And that slogan has been around for a long time. It’s now morphed into this version of defund the police. But there are people saying defund the police who say, no more police departments, let’s go with the violence interruption model, which by the way is often used in addition to the police. It’s used in addition to the police in Chicago, in New York City. That’s where you train and hire local community members, some will be formerly incarcerated, and they go out and they say to the people who they think will be the next shooter, “Hey, don’t shoot. Here’s why we don’t think you should shoot.” There is research that shows they’re effective, but only in the context that I’ve ever seen of being in addition to law enforcement.
And so, that’s where I think the debate becomes a lot more problematic in my view. I mean, you know we did a huge amount of work to remake the police department in Camden ultimately because of budget cuts. The city just couldn’t sustain public safety gains, crime was going up. They disbanded the police department, became a countywide police force, rebuilt the police department from the ground up in a pretty radical way. They have, I would argue, the most progressive use of force policy in the country. They have civilians who now go out when there are car accidents instead of police officers. They’re very much devoted to community policing. They rebuilt a new police department and they disbanded the old one, but they didn’t get rid of this idea that you need someone in a community that can enforce the rule of law.
And frankly I think, I don’t know how you feel about this, but the idea of having zero police in a community, particularly a community where there could be violence, I worry a lot about people in states where there are gun laws that allow people to carry that you can have people taking the law into their own hands. And so, that version of defund the police is not the right way to think about it. But I do think that there’s an argument around reframing that is very powerful and that it’s going to change the ultimate outcomes in communities because we’re having a different conversation than we ever have.
Preet Bharara: My big quarrel is with the slogan and I think it’s really problematic in lots and lots of people, including people in the Black Lives Matter Movement understand that it’s problematic. There also happens to be, and I hate to be so political about it, there’s an election that needs to be won and it’s providing fodder to bad faith people like the president and his supporters to say something that’s not true. And if it happens to be the case that the reforms being suggested, as you have just recited at some length, are reasonable and fair and proportional, that’s terrific. I don’t know why you shoot yourself in the foot with a slogan that can be so easily misunderstood and so easily turned against you.
There’s lots of things we can take away from the police department and I agree. We ask too much of police officers and police forces all the time which functions could be properly done by someone else or some other entity. And sometimes there are things that we want the police to do that they don’t have enough funding to do. For example, I don’t know that police departments have enough investigatory resources for cold case-
Anne Milgram: Or analysts, or data.
Preet Bharara: Figure out how to solve the crime as opposed to figure out how you can use the massive displays of force and have military grade weapons. If you want to take away funding from those things and put them into things that actually make people safer, I’m all for that. I think every police department should do a self audit and figure out what money it needs and what money it doesn’t need. The problem is, politically I’m perfectly prepared… I’m not an expert, but I’m perfectly prepared to believe that police departments have bloated budgets in the same way that people have been arguing for a long time that the military has a bloated budget. And that comes at a cost to other kinds of things. It’s just very politically popular to throw money at the police. It’s politically popular to just throw money at the military. It doesn’t necessarily make a lot of sense, but I worry.
Anne Milgram: There’s also a big similarity between the police and the military, which is that the civilians who oversee them, in most cities it’s mayor or a city council, have no experience in those spaces. Like the president of United States overseas the military and has no experience in the military. And so, there’s a huge value in that, but it also does mean that when it comes time for budgets, when a police chief says to the mayor, I need X, that money often is granted. And so, I think some of this conversation is about that. But let me say two things because I think your points are well taken.
The first is that I will tell you, honestly, my first reaction to defund the police is, it’s viscerally to push back against it because it sounds like the idea is we’re abolishing public safety and we’re abolishing the rule of law. And part of the problem with it is that there are these two very different visions of what it means, one of which I think would be terrible for society and for communities. The other, which I think is not defunding the police, it’s more saying the residents of a community want control over how we do public safety and we want the police to do the things that are truly within their wheelhouse and we want others to do the things that the police don’t need to do.
And by the way, we want the police to be accountable and to have good use of force policies and all that. That to me is a very interesting conversation about reform that I think is really smart and thoughtful and worth having. The other is not. And so, I agree on the visceral reaction. I also have an incredible visceral reaction to it and I had to think a lot about it before I came to the position of actually also believing that in some ways it’s being used to reframe.
Now, I guess one of the challenges, Preet, if you and I were thinking about slogans and how do you name things, it doesn’t sound quite as catchy to say, reallocate some of the police budget to other social service agencies that need it. So, I think maybe there’s a point there, but I do want to say one other thing though about why… And I actually, I don’t like the conversation around defunding. It’s going to sound strange, but I’m much more comfortable with the conversation around disbanding a police department and radically remaking a police department, right? Building it from the ground up like we did in Camden, and here’s why.
When you talk about bloated budgets and you talk about that they should be scrutinized, most people would not disagree. The reality of union contracts and police union contracts is that there is not a lot of wiggle room around those. Overtime is set contractually, pay is set contractually. And what police departments are is generally full time employees. They’re very heavy on personnel. Essentially you’re talking about the number of officers you have often when you’re debating police budgets. There’s some small amount for technology. There’s some small amount often for analysts and cars and things like that.
There needs to be a revisiting of that because there needs to be more money for analysts and the type of technology and data collection that can help you actually be much smarter in how you combat crime. But right now one of the issues and one of appeals of reforming police departments and building it from the ground up is that those union contracts go away. And by the way, I come from a family of teachers and police officers and members of unions and I believe very strongly that unions are a critical part of American society. But I also think we have to be honest about one of the reasons that we haven’t seen a lot of reformed police departments often relates to these things like contracts and push back from unions.
And so this is a national conversation about, like in Camden, it’s also worth saying they formed a new union. They just were able to get out from under historically very, very difficult and costly police contracts that really put huge limitations on the ability of the department to bring institutional reforms. And so, I prefer the conversation about reforming and re-imagining policing over defunding policing. But again, I understand the anger from the protest and the rage is basically, it comes from this view of like, we pay for your salaries and what we get is not acceptable.
Preet Bharara: Look. And it comes from scene after scene after scene that we’ve been seeing on television and on our phones of really inexplicable and inexcusable police violence over and over again. The targeting of the press, shooting rubber bullets at point blank range, pulling down someone’s mask and pepper spraying them. We have these scenes that I have heard no explanation of that makes any sense to me of cars whose tires have been slashed by police officers. And then maybe the most dramatic thing that we should talk about for a minute that has been seen many, many times by I’m sure everyone by now is the scene in Buffalo, New York, where there are a whole bunch of police officers. There’s a 75-year-old slender man who gets pushed back, falls to the ground, hits his head on the pavement. You can see a pool of blood under his head.
One officer, and maybe this is one of the junior officers whose natural instinct is to do the right thing, at least in that moment, and to lean over and help. And he’s pushed along by another officer. Now, two police officers have been charged in connection with the assault on the 75-year-old man. The police union leader, you talked about police union leader there, has taken the side of the officers. Those officers were part of what I understand to be the emergency response team. 57 of them, they’ve not resigned from the department, but in solidarity, whatever that means, with the officers who were charged with assaulting the 75-year-old man, have resigned from that special force, the emergency response team. I find all of that appalling and quite frankly, nuts-
Anne Milgram: It’s sickening.
Preet Bharara: That’s not going to ease the call for defunding the police.
Anne Milgram: No. And look, I think that the way that the police have responded, it’s hard, right? I mean, I want to be honest in saying I think it’s hard, I think at the moment during the initiation of the protest, the first couple of days, if there was looting and whatnot and any violence, that’s very hard because the police have to respond and they should respond without violence, but they’re in situations where they don’t have full situational awareness of what’s happening around them. But as a rule, what we have seen is an extraordinarily over… just too much force being used. When you see lines of 100 officers lined up in BTUs, the black dress uniforms, with gas masks and weapons, it is escalating in my view a situation that what you want is to listen and to hear.
You want the protest to be peaceful and what the police want to do is enable people to go out and have a voice and to protest and to be angry, but not to have the use of force. And so it, to me, has been this us versus them mentality, which is exactly the wrong thing at this moment in time. And Buffalo to me was also… There were two things about Buffalo that just, it pains me so deeply. One is that when you think about authoritarian regimes, what they do is they dehumanize people, right? And they basically, they essentially steamroll people. And you’re looking at an older man who is walking up, he’s clearly not a threat. There’s no argument in my view that he’s a threat. He just-
Preet Bharara: Well, Anne.
Anne Milgram: Well, yes, you’re right.
Preet Bharara: There another theory-
Anne Milgram: There’s a theory.
Preet Bharara: There’s another theory. This is a tweet sent this morning. We’re recording on Tuesday morning, June 9th. It’s a tweet sent by, I don’t know, not so significant a figure but he’s the president of United States. President of United States, Donald J. Trump, tweeted the following about the Buffalo incident. “Buffalo protester shoved by Police could be an ANTIFA provocateur. 75 year old Martin Gugino was pushed away after appearing to scan police communications in order to black out the equipment.” Then he cites to this, in some way is truly fake news outlet, OANN. “I watched, he fell harder than was pushed. Was aiming scanner could be a setup?” So there’s this other theory that he was a dangerous ANTIFA provocateur.
Anne Milgram: Yeah. Do you know what’s interesting. What’s so interesting is that everyone has seen the video. So this yet again goes to the president is trying to give us a different version of events than people can actually see with their own eyes. And look, if the guy had a police scanner and he was doing something illegal, then the officers would have been well within their rights to say, “Sir, please step over here, please come with us.”
Preet Bharara: Yeah. And maybe he had a ketchup packet that he used to simulate blood because he was clearly bleeding from the head. And the president of the United States calls it a set up.
Anne Milgram: Also, the other point I want to make is that the Buffalo officers did something that hurts them so much in the eye of the public. And I want to say that what they did was they lied about it. They went back and they said that the man tripped and fell. And this is on film, it’s captured by a TV news crew. And so for them to basically put in a police report that says that, it makes them lose credibility and it makes it look like exactly what it was, which was excessive force used to try to basically deal with a member of the community. And by the way, this is what police officers are hired and trained for, which is to deal with people.
I do want to say that I believe that the vast majority of men and women in police departments are good, honorable people and they’re there for the right reason. And this is why the institutions and the culture and the way that they’re led matters so much because you can have a police department that respects people or you can have a police department that over escalate situations, does not know how to deescalate and basically can make situations like we saw in Buffalo happen when they don’t need to happen.
Preet Bharara: There’s this other incident that happened a few days ago that we should talk about also, and that is the clearing of the park in front of the White House so that the president could go do his photo op, which we mentioned briefly before, but there’s been this issue and controversy over how that happened, who caused it. Bill Barr has basically sort of waffled on whether or not he was the approximate cause of that place being cleared. And by the way, the reason it’s important is there’s a controversy over whether or not tear gas or some equivalent of tear gas was used.
There was a back and forth with respect to the park service who said no tear gas. And then it was clear that these pepper balls, which according to the CDC definition is in fact a kind of tear gas. The point is, it was a fairly sharp use of force. I think rubber bullets were fired also. There’s a debate about whether or not there were warnings or not warnings. All the journalists who were there are unanimous in what happened in the lead up to the clearing of the park. And then it comes out through a reporting that Bill Barr is the one who caused that to happen. He’s engaged in a little bit of a word salad about it. I think he said something, I don’t have a-
Anne Milgram: It’s beyond word salad, Preet. Yeah.
Preet Bharara: But he said something like, I mean, it’s like [inaudible] and he said:
Bill Barr: The park police on their own on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the metropolitan police at 2:00 PM that day. The effort was to move the perimeter one block.
Anne Milgram: I mean, again, it’s like-
Preet Bharara: I didn’t order the code red, but I told them to get the code red done.
Anne Milgram: Exactly.
Preet Bharara: I don’t understand as a matter of ethics and language and responsibility how this highly intelligent man gets away with that nonsense.
Anne Milgram: And also I want to say this. All the journalists are uniform in saying that the protests were peaceful, nothing was being thrown. Barr has argued that people were throwing things. He’s basically arguing that the protesters were acting unlawfully in order to justify the use of force. There’s no basis or evidence to believe that the protesters were doing anything other than peaceful protesting, number one. And number two, that use of force. And I think, look, it was chilling to me, I think it was chilling to a lot of Americans to see the use of sort of military and police force being used to pushback peaceful Americans who were protesting. And so, I think Barr has a lot to answer for. Also, and you and I already talked about this, offer the president to take a photo op at a church with a Bible one block away, and then just return to the White House. It did actually make me also feel frankly that I want DC to be its own state, and not to light the flame under the DC statehood.
Preet Bharara: No, I agree.
Anne Milgram: It’s really not fair. I mean, basically they’re a district because they’re a district. Like they’re being essentially sort of, Barr is telling the DC metropolitan police what to do. It’s problematic in my view. And look, we’ve never seen anything this extreme, but this was extreme and it caused all these military leaders. It caused James Mattis to come out and basically criticize the president and say the president is trying to divide us. I mean, all the former military and government leaders basically have denounced these actions.
Preet Bharara: Yeah. And also have made it clear that they do not support the use of the military in putting down protests. That’s something that the president has been hinting at. He likes to show off that he’s the commander-in-chief. Maybe he would use the Insurrection Act like we talked about in the last couple of weeks. And the people who are actually in the military or have been in the military are the loudest voices against him, including his own defense secretary, Esper, who has a lot of issues of his own. But basically the military stands against the use of their forces against American citizens who are peacefully protesting.
Anne Milgram: I may be being cynical or overly worried about the November election in some ways, but I also feel like it was a little bit of a flag in the sand for the military basically to say like, we work for the American public, we don’t work just for the president of the United States in your personal capacity. And so, we’re not going to do just anything that you want us to do if you say that we should do it. And so, I sort of think if we think about the peaceful transfer of power, when you look at government overthrows. And again, I’m not saying that’s going to happen here. But if you look at other countries, the military often backs the president or the leader. And I think the military here was asserting just a very small amount of independence by making a really important statement about what is and what isn’t right.
Preet Bharara: What I think is uplifting has nothing to do with the law or the government’s response. It’s the people’s response and continued protest and shining a light on these problems in city after city after city. I went to a rally, vigil protest, in my community with my kids over the weekend. They made signs saying Black Lives Matter. Lots and lots of people were there. You see it not only in American cities, you’re seeing it in cities in Europe, and it persists. It’s not something that just lasted for a couple of days. I think people are really sensing that this is different. You and I have been in law enforcement and law enforcement has a lot to think about and a lot to answer for and no police department is perfect. No US attorney’s office is perfect, but I think this is a really important time in America that seems different.
People are paying attention and they’re paying attention on a consistent basis and they’re thinking deeply about what needs to change now. Well, some people take it too far, perhaps. Well, some people will not take it seriously enough, of course. But lots and lots of good people who I think have not spent a lot of time thinking about this before or caring about this before care about it now. And I find that to be very inspirational.
Anne Milgram: I do too. And I also believe that we will see very positive changes in that what will come out of this will make us a far, far better country than we are today. And so, I’m hopeful about that as well.
Preet Bharara: Thanks Anne.
Anne Milgram: Thanks Preet. Great to talk to you.
Preet Bharara: That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noa Azulai, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.