Heather Cox Richardson:

From Cafe and the Vox Media Podcast Network, this is Now and Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. As we sit here, Donald Trump is widely expected to be indicted by Manhattan District Attorney, Alvin Bragg. And it’s possible that he will be charged in connection with a hush money payment to Stormy Daniels in the final days of the 2016 election. There are other things that may happen too. We don’t know at this early point worth mentioning. But in one way or another, an indictment against a former President of the United States would be unprecedented. It would be the first criminal case against a former president in American history.

And what strikes me about that statement is we live in times where people are constantly saying, “This is unprecedented. This is unprecedented.” And historians are always saying, “Of course, there’s precedents for this. It’s happened in many ways before.” Don’t say unique if you’re a historian. But there are aspects of what we’re looking at here that are indeed in many ways unprecedented.

Heather Cox Richardson:

And I think this is incredibly important to talk about, and I want to talk about it, Joanne, but I feel like you are doing our listeners a real disservice by not mentioning that we have a celebrity in our midst today that while you have won awards before, there is somebody on the podcast today who won an award this weekend who has never before, to my knowledge anyway, won an award. Do you want to introduce that person?

Joanne Freeman:

I will. So, I received an award for contributions to history education. Newbie the History Bird was awarded an Honest to Goodness Award, which I just showed you, Heather. So, it exists. It’s a very attractive glass award for his contributions to history education. So, he is an award-winning history bird.

Heather Cox Richardson:

So, this is just a star-studded podcast today. This is probably unprecedented.

Joanne Freeman:

Yes.

Heather Cox Richardson:

But perhaps somebody else has an award-winning parakeet.

Joanne Freeman:

Yes. You never know.

Heather Cox Richardson:

So, why don’t we start with who Bragg is? He’s 49 years old. He is a former state and federal prosecutor. He was elected in 2021, and when he was elected, he became the first African American to serve as New York County District Attorney. And that’s actually the technical name of the county that encompasses Manhattan. He has been in the job for 15 months, and he has faced a number of controversial decisions and criticism from everywhere across the political spectrum. Bragg became the subject of criticism when a couple of prosecutors in his office resigned reportedly because Bragg declined to pursue criminal charges against former President Trump in a matter related to Trump’s financial dealings.

And then one of those prosecutors wrote a book about a potential Trump prosecution and very publicly pressured Bragg to change his mind, perhaps more visibly. The former president himself, Trump has been over the top in his criticisms of Bragg, posting pictures, threatening pictures, making threatening comments, and interestingly enough, actually predicted and told everybody on social media that he was going to be arrested and charged on Tuesday of last week.

And what’s interesting about that is that a lot of people really ran with that idea. And I think the historians in the crowd said, “We don’t know that. The only news we have of that is from Trump himself.” And there are reasons not to believe him when he says that. And then of course, Tuesday came and went and he was not charged. After Trump predicted he was going to be arrested, Bragg got a letter from three of the new committee chairs in the House of Representatives about, and they said, “What plainly appears to be a politically motivated prosecutorial decision.” And again, there hasn’t been a prosecutorial decision publicly yet at all.

So, this was itself really an overstep and a real politicization of this legal decision that again, hasn’t been made yet. So, both then former President Trump and Republican hopeful presidential candidate Ron DeSantis are criticizing Bragg for what they say is political prosecution. When again, as of this taping, we don’t have a decision yet. And so, that itself is really indicative of the politics that are involved here. And we of course are watching this very closely and we’ll continue to.

But when we started talking about things we might want to deal with in today’s episode, we got talking about the actual function of justice in our society. And someone on this podcast said, “What the heck is the DA anyway?” And that’s where this podcast episode was born. So, what we’re going to do today is work through the different levels of how justice meets the legal system, the how the rubber meets the road in the justice system and what that has meant throughout our history.

Joanne Freeman:

So, if you’re wondering in listening to all of the news, it’s about the situation in New York. We are going to address what these various positions are generally, and then specifically talk about district attorneys, New York District Attorneys, what they do, what they have done, and how that’s changed over time.

Heather Cox Richardson:

So, one of the things to understand first of all is that in New York City, there are three major prosecutorial roles, and these are really clear, I think. The first is the one that most people know about and that is the US attorney. So, the way this works is that there is a Department of Justice formed in 1870 under US Grant, got to put that in there. The person who oversees the Department of Justice is the Attorney General of the United States, but it’s a really big country. So, the Department of Justice has divided that ability to oversee justice in the different regions under US attorneys. So, that’s the top federal prosecutor in a jurisdiction under the Department of Justice.

Now, in New York, the Attorney General is the top state prosecutor and the district attorney and this one always gets to me because district attorney, I think district, I think I kind of think voting district, but it’s not. A district attorney is the top local prosecutor and the word district generally refers to a county. So, it’s not a voting district. And the other thing that always gets to me is when I see DA, I always think defense attorney and it’s not, it’s a district attorney. So, we have the US attorney at the top as a federal prosecutor, the State Attorney General who is the state’s chief legal officer, and the district attorney is the top local prosecutor.

Joanne Freeman:

So, let’s talk a little bit more specifically about how that breaks down. And let’s take for example, the US attorney for the Southern District of New York, which was our CAFE colleague Preet Bharara’s former role, and it’s appointed by the president. The US attorney prosecutes primarily federal crimes, meaning crimes that are violating laws passed by Congress. They tend to include white collar crimes, drug trafficking, public corruption, and terrorism. A lot of them involves interstate commerce. And there are 93 US attorneys corresponding to districts across the nation.

Heather Cox Richardson:

So, I always think of them as the umbrella of the Department of Justice over the entire country.

Joanne Freeman:

Now, the New York State Attorney General, which is currently Letitia James, is the state’s top legal officer who brings and defends proceedings on behalf of the state. So, really thinking on behalf of the people of the state. The role of a New York State Attorney General is broader than that of a district attorney. They can pursue criminal charges in some instances, but more often they’re bringing civil charges and act as a counselor to governors or the state legislature or various agencies. Most state attorneys general are elected by popular vote. Some are appointed by a governor.

Heather Cox Richardson:

And then, finally, there is the New York County District Attorney, and that’s where Alvin Bragg sits. The district attorney prosecutes violations of the state’s criminal code. So, in practical terms, this office prosecutes the highest volume of criminal cases. So, for example, murders or robberies or other kinds of street crime. On a national level, district attorneys usually correspond to counties and they are typically elected by popular vote. This is the person who is looking at the criminal code and saying, “This is a problem. That’s not a problem. We need to prosecute this. We don’t need to prosecute that.”

Joanne Freeman:

This sounds complicated, in some ways it is. And that’s very much because of the complications inherent in justice and the law is that you need levels and layers and you need the ability to address things in different ways, to actually get down deep into offenses against the law and the best way to treat them.

Heather Cox Richardson:

And also, to make sure that nobody oversteps. I mean, one of the things that really jumps out to me is all the layers of the government itself that were designed to trip people up. And here too, you have a lot of different people looking at a lot of places that look untoward, if you will, and having different jurisdictions over whether or not that’s something that they can deal with. All right, so tell us Joanne, where we get a district attorney in Manhattan.

Joanne Freeman:

So, that gets its roots in the office of the New York Attorney General. In 1777, the New York Constitution, and of course that’s when states now have to create constitutions because of declaring independence and breaking away from Great Britain. So, in 1777, the New York Constitution empowered the Attorney General as the exclusive prosecutor for the entire state. But by 1796, the Attorney General, and at that point it was Federalist, Josiah Ogden Hoffman simply couldn’t handle all of the necessary prosecutions. This happens a lot in the early government of the United States.

Heather Cox Richardson:

I’m laughing over here because I’m like, “Of course he couldn’t.”

Joanne Freeman:

I know.

Heather Cox Richardson:

New York, they’re fighting about everything.

Joanne Freeman:

And Congress too, this committee will do this. It’s like, no, actually we’ll have 52 different committees doing it in different ways because it’s impossible to address all of the business. So, in this case, the New York State legislature passes a new law dividing the state into eight districts with an assistant attorney general empowered to prosecute crimes in each respective district.

Heather Cox Richardson:

I also think it’s important to mention that in this early period, the law is not clear. I mean, there’s a lot of overlap. There’s a lot of, “Is this a crime? Is this not a crime?”

Joanne Freeman:

Well, right, for very good reason because everything was under royal governance, Britain controlled all. Suddenly, you have that cut off, okay, it’s not going to be that way anymore and everything is being redefined. So, by definition everything is going to be confusing and blurred. And in some cases, new precedents are being created, but no one’s clear on what they are. And sometimes it’s not even clear that that’s happening until something gets violated or some obvious mistake gets exposed.

So, in 1801 in New York, the Assistant Attorneys General were renamed district attorneys. And in New York City proper, the Attorney General continued to prosecute most cases independently until 1815. Now, this didn’t mean that the Attorney General was handling every criminal case in the city while the Attorney General and later the district attorneys prosecuted many cases for New Yorkers. Private lawyers continued to litigate most criminal prosecutions in New York until the 1840s.

And this strikes at a really important point again about early America, which is there were not clear dividing lines between public life and private life, between political things and personal things. All of those things were blurred together in interesting and sometimes complicated ways. Politician at this point wasn’t really a job even. It wasn’t as though you signed on to be a politician. And that actually meant something. You were a probably elite gentleman who had some degree of status and clout. And as an elite gentleman, it was assumed you were going to have some sort of public life. And often, that had something to do with the law or government in one way or another. And more than anything else, what mattered really was your reputation more than your qualifications.

Heather Cox Richardson:

If the prosecutions are all part of protecting a certain group’s reputation, you can see that if you’re not part of that group, it’s only going to be a question of time until you’re like, “Hang on here, just one red-hot minute. How come our legal system is all happening over cigars in a back room?”

Joanne Freeman:

Indeed.

Heather Cox Richardson:

Wait, were they smoking cigars in this period?

Joanne Freeman:

Yeah. So, now that’s a really good question because at one point I read somewhere that John Adams smoked the occasional cigar and it blew my mind.

Heather Cox Richardson:

So, walk us through what all these cigars smoking people were doing.

Joanne Freeman:

So, we have this blending of district attorneys and private prosecutors sometimes working with them, sometimes all of them being paid for their labors on behalf of complainants. Sometimes, private lawyers would represent both the prosecution and defense in different matters in the same larger case. So, I guess saying that things are blurred is the great understatement here in what we’re talking about. The first district attorney for the first district of New York with jurisdiction that technically included New York City was Richard Riker, who was a member of the rather wealthy Dutch American Riker family, which owned, not surprisingly, when you think about it, Rikers Island.

Now, when Riker was district attorney, the Attorney General still generally prosecuted cases in New York City. Riker prosecuted cases primarily in Queens, Kings, Richmond’s, Suffolk, and Westchester Counties, which were also included in the first district. And from the very beginning, New Yorkers accused the District Attorney’s office of political bias.

Heather Cox Richardson:

That’s just a small thing.

Joanne Freeman:

Yeah.

Heather Cox Richardson:

The fact that since the beginning, the idea of enforcing the law has met accusations that you are enforcing it against your enemies and not your friends.

Joanne Freeman:

Part of what we’re talking about here is the law, and part of it really has to do with conceptions of the law and who it favors and who it doesn’t, and what’s supposed to happen as a result of that sort of injustice. So, from the beginning, New Yorkers accused the District Attorney’s office of political bias. In 1808, the Federalist New York Evening Post argued that Riker, who is a Democratic Republican, had shifted his political allegiances that he’d been a federalist up until Thomas Jefferson’s presidential victory in 1800.

And then, the New York Post said, Riker enjoys an excellent office as district attorney, and he has held it ever since he apostatized from the Federalist and wore a black cockade, which is people were wearing different color cockades on the street to declare what party they belonged to, which I am told he did till the last day when the Federalists lost the election in 1800.

Heather Cox Richardson:

Completely unfair, wasn’t it, Joanne? Riker did nothing to indicate anything other than that. He was an impartial enforcer of the law, right?

Joanne Freeman:

I love your straight man facial expression when you say these things. It’s like, “Joanne, everything went wonderfully from this point on, right?”

Heather Cox Richardson:

Well, but I always do it when it’s somebody like this dude who is like, I mean, here we’re like, “Oh, he’s the first district attorney.” And you have this image of like, “Oh, we probably was trying really hard to do his job really, really well and right by the book,” but…

Joanne Freeman:

Well, he’s a dualist. He was a dualist. Now that said, I will say there are a lot of people who are involved in politics and government who were dualists. So, it’s not as though he stood out for that purpose. But he also is hardly a paragon of justice in that way. And what’s interesting is, and this is a great example of how politics and justice and the law were so intertwined from the very beginning, is that in New York City at that time, the Democratic Republican or Jeffersonian Republican Party was divided into sections. And one of those sections really, Burr was at the top of it, and another one had the Clintons.

George Clinton was this very powerful figure in New York. And somehow, when any historian writes about him in any book, it always says the powerful George Clinton. So that comes right into my mind whenever his name appears. But the Clintons, George and Dewitt Clinton and Burr are very much at each other’s throats fighting for control of New York. And Riker, who is a close ally of Dewitt Clinton actually participates in two duals that are bound up in this democratic Republican fight for power in New York state.

Heather Cox Richardson:

So, what you’re saying is the district attorney shot his political enemies.

Joanne Freeman:

And not only shot them, but they assertively set it up. Right now, we shall have an occasion in which these people will go out on a dueling ground and shoot at each other.

Heather Cox Richardson:

And dueling is illegal.

Joanne Freeman:

Dueling is illegal, so they will not be charged with a crime. Although, ultimately, down the road for political reasons, some charges are brought, not because people consider them horrible crimes, but because it’s useful at a particular moment to say, “Hey, you know what? You broke the law.” And I will remind you, we’re talking about the district attorney involved in all of this behavior.

Heather Cox Richardson:

And no, New York got its own history, but you’ve got the first DA shooting people. So, what happens?

Joanne Freeman:

Well, certainly the public profile of what a district attorney does becomes more important.

Heather Cox Richardson:

When they did a reorganization of the different county systems, they separated out the first district and gave it its own district attorney. And then three years later, in 1818, each New York County was granted its own district attorney and the New York Governor first appointed them until 1821. And then, finally in 1846, the Manhattan District Attorney’s post became an elected position. If you look at our boy Riker there, you can see if you’re not part of that inner circle, you would be like, “Why on earth is the guy in charge of making our laws real in position when his idea of a good time is to shoot people?” And again, that’s that whole idea of this system being one that nurtures a certain group of well-connected elites

Joanne Freeman:

Openly.

Heather Cox Richardson:

Openly. That’s right. And this is going to change with the idea of electing justice officials. And I think that’s a really important transition. Again, what jumps out of it to me about this material is its people. And the way that it plays out throughout this entire period is an attempt to work around people and to work around politics and to work around individuals in order to create a justice system that works.

Joanne Freeman:

Well and for people to work around the law, the other side of that.

Heather Cox Richardson:

Yes, because you, you’re always trying to get out ahead and say, “Wait a minute, you can’t do that.” And it has always surprised me when you have the idea as you do hear of prosecutors being elected, like what on earth is that about? Well, if you’ve had Riker in your past, it’s about saying, “Wait a minute, we got to make sure we don’t create a system that responds only to a few wealthy people.”

Joanne Freeman:

When the DA becomes an elected position. I suppose there’s a logic to the fact that the DA, which was always politicized, ends up having a much more public role. And there’s a 2002 article called The Discretionary Power of Public Prosecutors and Historical Perspective, which has absolutely everything to do with this episode. And University of Colorado Law School professor Carolyn Ramsey argues about the fact that the role of the DA changed from a private lawyer to being a far more scrutinized public official after this change in 1846.

So that by 1846, the district attorney no longer was just a prominent private lawyer or some kind of a court official shepherding people’s cases through the system, but really now is an elected state agent that the voting public can affect, can shape that they can scrutinize this person’s behavior. That’s a big and a dramatic change

Heather Cox Richardson:

And one that has its roots in history, but also then raises the specter of the idea of a district attorney who is beholden to his voters. And after the rise of the elected DA rather than the appointed one, there is increasingly a sense that the DA should prosecute cases impartially. And that’s all part of the late 19th century concept of having impartial justice and one that’s very much under attack in that era as people insisted that the police officers and the judges in cities were not holding members of their political parties, especially those who were associated with political machines to the same kind of standards of justice that they were holding their political opponents. So, there’s a real push to make sure that district attorneys are in fact impartial and that’s going to play out pretty dramatically in New York.

Joanne Freeman:

And there is a great quote from the New York Harold Tribune in 1887 supporting this idea that says, “It is the district attorney’s function and his duty in each criminal case to present every fact and circumstance that can be brought forward on behalf of the people. The prisoners’ counsel may be trusted to present every fact in favor of his client. The plea of mercy is one with which the district attorney has little or nothing to do. He is supposedly here representing impartiality justice and the law.”

Heather Cox Richardson:

For the people. You’re going to make sure that the bad guys get in trouble. But in the late 19th century, that is going to create a major standoff in New York City between Tammany Hall and Reformers. This is the story of one of our first fairly prominent district attorneys in New York, and the story of Asa Bird Gardiner versus Theodore Roosevelt is really that central question of the relationship between political pressure and justice.

Joanne Freeman:

Probably, many people have heard the phrase Tammany Hall. I’ll just define what it is for a moment because that will have a lot to do with the story that we’re telling here. The Tammany Society is created in the late 18th century, and it’s a kind of a stronghold of Democratic Republican Party politics in New York City. And over time in the 19th century, it gets more and more control partly by getting the loyalty of the city’s expanding immigrant community. But Tammany Hall, the Tammany Society is essentially a political machine, first Democratic Republican, and then democratic political machine. And that’s no secret. That is what it is. That is what it does, and that is what made it both powerful and controversial.

Heather Cox Richardson:

And it is hugely important in New York City. It essentially runs New York City throughout the 19th century, which is the source of enormous frustration to the Republican Party because the Tammany Hall party is the Democratic Party. And the Republicans argument is that democratic politicians basically promise jobs and make work projects to employ their constituents. And those things are going to be paid for with tax dollars that are going to come out of the pockets of the wealthy New Yorkers who tend to be Republicans. So, there’s a huge fight to clean up Tammany Hall that’s going to affect every single part of 19th century politics, especially in the late 19th century.

Joanne Freeman:

So, Tammany and the question of impartiality in the Manhattan DA gets very much tested in the late 1890s in a standoff between the Tammany Hall backed Asa Bird Gardiner and the reform-minded New York Governor, Theodore Roosevelt.

Heather Cox Richardson:

And just to point out there, Gardiner’s a Democrat, Roosevelt’s Republican and Roosevelt has very large political influence on his mind.

Joanne Freeman:

I thought you were going to say ego.

Heather Cox Richardson:

Yes. Well that too. So, he’s partly doing it because he really believes in clean government, but he is also believing in clean government, largely because he’s a Republican and these are Democrats.

Joanne Freeman:

So, once again, public, personal, political, private, I won’t use the word weaponization of various things, but it’s all blended together here in interesting ways. Now, Gardiner was born in New York City in 1839. He’s actually was a decorated Civil War veteran. He was wounded at the Battle of Gettysburg. After the war, he was a professor of law at West Point. And in 1897, as we’ve just said, he’s a Democrat, he’s a longtime Tammany Hall member. He is elected Manhattan’s district attorney.

During a campaign event in Harlem in October of 1897, Gardiner cursed anti-Tammany reform efforts and an address that received quite a bit of attention. He said, “In all the history of municipal government, there was never a party that made such a showing as the Democratic Party in Tammany Hall. Now don’t you forget that and should any of these people talk to you about reform, tell them as I do to hell with reform.”

Heather Cox Richardson:

There is a political philosophy behind what he is saying, but I just want to point out this is a man who fought for the United States and was wounded at the Battle of Gettysburg and who then goes on to teach at West Point. So, he is in many ways, to many people, sort of the symbol of everything that’s good about America. Then you have Theodore Roosevelt who is much younger. He is a child during the Civil War and he takes office in January of 1899 as the Governor of New York. He is affiliated with the wealthy and the powerful people in New York, although it’s not going to be very long before they start really to hate him.

But New York’s powerful city club, which is a group of business people who are thoroughly anti-Tammany. They were founded in 1892, presented Roosevelt with a list of charges against Gardiner saying that he had not been indicting Tammany linked criminals during his tenure. And this was a huge deal in New York City at the time. There are lawyers in New York in this period, famous lawyers who actually have their own criminal rings, and there’s a huge fight about how you get control over those people and maybe you don’t get control of those people because they represent the voting population. New York is sort of a stew of what does it mean to have justice in New York.

And of course, Gardiner promptly tells the press that this is a Republican ploy that was formulated at the Fifth Avenue Hotel in order to change the political climate in the city and change voting regulations before the 1900 presidential election. That is, those rich guys want to get rid of your political machine. They want to get rid of Tammany Hall and they want to swing the next election.

Joanne Freeman:

And I should add too, that Tammany advertises itself as being against the aristocracy. So that sort of democratic message, democratic, small D, message has worked into some of these implications as well.

Heather Cox Richardson:

Roosevelt is not going to take that lying down. He appoints somebody to investigate Gardiner. And it just so happens that the person is a good friend of his Roosevelt’s. The guy’s name is Ansley Wilcox. And after a year long investigation, Wilcox can’t prove that Gardiner has in fact applied a different standard of the law to his Tammany associates than he did to the people who are Republicans. However, Roosevelt found another reason to fire Gardiner. And in fact, exactly as Gardiner had accused, it did involve the 1900 election.

And in that election, Roosevelt was the vice-presidential candidate because William McKinley’s first vice president George Hobart had died. The Republican Party replaces him with Roosevelt in part to make Roosevelt go away. The way this played out was that Roosevelt and the state legislators of New York who were Republicans had long been fighting Tammany Hall in the city, and they were fighting the New York City police chief, an ally of Gardiner, a man named William Devery, who was constantly accused of graft and voter intimidation.

And leading up to the November 1900 election, Devery allegedly encouraged the New York Police Department to disregard voting regulations that the Republican superintendent of elections had put forward. These fights of the elections in New York are incredibly heated from the Civil War on because New York is democratic and upstate is Republican. And controlling the state of New York generally means you’re going to win or lose the presidential election because New York has so many more electoral votes than any other state.

So, Devery in that election tried to put New York City police officers, virtually all of whom would have belonged to the Tammany Hall Organization in voting places. And the Superintendent of Elections, John McCullough, who was the Republican, did not want to have the Tammany presence around the election. After it, a Manhattan grand jury quickly indicted Devery for defying the instructions of the state election superintendent. And the district attorney allegedly ignored that probe and issued a statement through his assistant district attorney, which included the line, “The indictment will not hold water.”

Joanne Freeman:

So, to heck with that indictment.

Heather Cox Richardson:

Well, given that Gardiner seemed to have gone against an indictment that had been issued by the state, Roosevelt suggested that he had deviated from his official duties and he argued that Gardiner’s support for the police chief’s intimidation tactics was deeply undemocratic. So, on December 22nd 1900, Roosevelt removed the district attorney from office and replaced him with another Democrat, but an anti-Tammany Democrat guy named Eugene Philbin. And Roosevelt did not mince words when he dismissed Gardiner. It is a mere truism to assert that honest elections free from both fraud and violence stand at the very basis of every form of Republican self-government.

“There can be no possible justification for any man and above all for any public officer failing to do everything in his power to prevent crime against the ballot box. No more serious crime against the state in time of peace can be committed.”

Joanne Freeman:

I quite like that actually.

Heather Cox Richardson:

Nonetheless, five days after Gardiner was removed, a state senator and a mainstay of Tammany Hall praised Gardiner and cursed Roosevelt saying his move was entirely political and cynical. And he did this during a meeting of Tammany Hall’s General Committee. And as he did so, Gardiner is sitting in the first-row weeping.

Joanne Freeman:

That struck me only because I write so much in the great period of weeping men in Congress, in armies. I was struck to see this later period weeping man in public as he’s being praised

Heather Cox Richardson:

In praise of Gardiner, the Senator says, “We will never, I fear this side of the judgment seat of God have a chance at Teddy Roosevelt. This robber of the office of District attorney who seeks to put the administration of our affairs in other than Democratic hands is bound to end in obloquy.” “To you,” he said, pointing at Gardiner, “I pledge the love, loyalty, and answering devotion of Tammany Hall. Be assured of that.” Again, a point there that Roosevelt did not replace him with a Republican. He replaced him with a Democrat who didn’t believe in supporting the Democratic Tammany Hall machine. The political tug of war over Gardiner’s firing continued to define New York City politics for many years after that.

Was this really about ending corruption and producing a free and fair vote? Or was it an attempt of Roosevelt to skew the vote in favor of his party? So, there’s some interesting parallels to other moments in our history that have been called unprecedented.

Joanne Freeman:

So, this actually brings us up to the 1970s when a man named Robert Morgenthau was elected district attorney in 1974. He serves beginning in January of 1975, continued for nine terms until December 31st 2009. He ends up being the longest serving Manhattan District attorney of all time. Now, Morgenthau Thou was born in Manhattan in 1919. His grandfather was real estate magnate Henry Morgenthau, Sr. who was President Woodrow Wilson’s ambassador to the Ottoman Empire during World War I. Morgenthau’s father, Henry Morgenthau, Jr. was President Franklin Donnell Roosevelt’s Secretary of the Treasury in 1934 and 1935. And this is just like, yes, indeed, it’s an insider, political insider who’s in the middle of every circle, or at least his family has been.

And he himself is because the young Robert Morgenthau was friends with the Kennedys, friends with the Roosevelts. He attended Deerfield Academy and Amherst College, and he was a war hero in 1944 while serving in the Navy and the Mediterranean. Nazi torpedoes hit his destroyer, the USS Lansdale and Morgenthau saved multiple shipmates and apparently swam in darkness for hours before being rescued.

He goes on to graduate from Yale Law School. He’s a partner at a very famed corporate law firm. He takes a turn as a fundraiser for Kennedy during John F. Kennedy’s successful 1960 presidential campaign and then is named the US attorney for the Southern District of New York, and even has a turn in electoral politics, goes back into private practice and then is elected district attorney in 1974. Now, he’s there for so long, at such a long stretch of time and so much happens in that stretch of time that in a sense his tenure is hard to sum up. And certainly, a lot of the most remembered prosecutions from his time as district attorney involved race.

Morgenthau’s biographer Andrew Meyer tried to sum up Morgenthau’s influence in the introduction of his 2022 biography of the Morgenthau family titled Morgenthau Power Privilege in the Rise of an American Dynasty. Meyer wrote, “Morgenthau had won nine terms, enduring five mayors and nine police commissioners. He’d suffered failure, even reigned over judicial miscarriages.” Some, like the Central Park jogger case would be etched into his obituary. He hated the failures, they burned anew at each mentioning. Yet on his watch America almost forgot the crime epidemic that had once brought New York low, the drop in homicides, the result he often acknowledged of forces not wholly within his control told the story from 648 homicides in Manhattan in 1975, the year he took office to 48 in his last.

In the 1989 Central Park jogger case, Morgenthau appointed assistant district attorney Linda Fairstein, to investigate the assault and rape of a 28-year-old investment banker who had been attacked while jogging in Central Park. And Fairstein led a prosecution that falsely convicted five teenagers of color. Antron McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Korey Wise for the crime.

In 2001, Korey Wise, still in prison for the assault, met a fellow inmate, Matias Reyes, who admitted to being solely responsible for the attack. Morgenthau, who had initially supported Fairstein reversed course. And against the advice of leaders at the NYPD and some ADAs, moved to exonerate the so-called Central Park Five. And Morgenthau reflected on hearing Reyes, his confession during a 2009 interview with Charlie Rose. Morgenthau said…

Robert Morgenthau (archival):

We at first didn’t believe him. We didn’t want to believe him. We didn’t want to believe we’d made a big mistake. But we said, give him a DNA test. And we gave him a DNA test. And he was absolutely right, matched the semen found on the jogger. So, when we brought him down to New York, we questioned him. We did everything we could to shake his story, we couldn’t.

Heather Cox Richardson:

Now, that case and Morgenthau’s relationship to it and to the people who elected him is a wonderful window into the ways in which an elected prosecutor reflects the times in which that person is elected. The idea behind a district attorney is to be where the rubber meets the road, to be where crimes happen and apply the laws to those crimes to meet out justice. So, this would be a case where one would think we have a real issue here that these five men were found guilty of a crime that they obviously did not commit. This is a problem for the way it happened, but thank God we have discovered what really happened. We got to make restitution to those other people. But this is great. The system worked.

Joanne Freeman:

Donald Trump used the Central Park Five case as an opportunity to get national attention for a kind of saber-rattling law and order crusade, buying up a full-page ad in the New York Times, the Daily News, the New York Post and New York News Day with the headline, “Bring back the death penalty. Bring back our police.” Trump wrote, “Mayor Koch has stated that the hate and rancor should be removed from our hearts. I do not think so. I want to hate these muggers and murderers. They should be forced to suffer. And when they kill, they should be executed for their crimes. They must serve as examples so that others will think long and hard before committing a crime or an act of violence.”

Heather Cox Richardson:

Really interesting moment right there in the psychology and also the rise to power of Donald Trump because he is already starting to sharpen what’s going to become his attacks on people of color, on people he defines as other in this moment. But it’s also interesting because he doesn’t actually turn on Morgenthau. He appears really to want Morgenthau’s respect. He wants to be part of that club that he thinks Morgenthau is in charge of. And the description of what Morgenthau is going to do and be after this period says again a lot about the production of justice.

So, according to Andrew Meyer, Morgenthau, thou kept a real eye on what was happening in New York City. As he wrote, “Mr. Morgenthau long kept close, the real estate clans that controlled acres of Manhattan. Fred Wilpon for years a principal owner of the Mets was a friend since the 1960s. Peter Calico, another magnate and one-time owner of the New York Post, was also a pal”. Morgenthau really seemed to keep close the powerful families and certainly the powerful men who exerted control over Manhattan and in a way reflected exactly the history of the DA’s office.

Morgenthau thou later said, “Of those people, some of these guys are sons of bitches. I know that. But they’re my sons of bitches. They stand up. If I need a check or we’re going to have to close down the Play Streets, which was a summer sports and art program, I can call Steve Ross or George Steinbrenner or Donald Trump.” On the other side, though some of those real estate developers and Donald Trump especially stood out for his determination to try and keep on Morgenthau’s good side, not necessarily because he was worried about Morgenthau prosecuting him, but because he wanted to make sure he had Morgenthau’s ear so that Morgenthau might prosecute other people for him.

Joanne Freeman:

And so, that he had that connection that he could count on, speak of, and brag of.

Heather Cox Richardson:

Exactly. So, Morgenthau’s widow said, “Donald idolized Bob. To him, Bob was the ultimate New Yorker. He was the establishment. Everything he, that is Donald Trump, was not.”

Joanne Freeman:

What we’re seeing here as we’re leading our way up to the present is a blend of the many things we’ve been talking about throughout this episode, particularly when it comes to Morgenthau and Trump. And that is political and the justice still intertwined the idea of a sort of clubby insider network of people that very much are aware that that’s there and they’re relying on it and larger ideas about justice and the rule of law and the ways in which these things are mixing and negating or not negating each other. And the ways in which people in Donald Trump, certainly primary among them, are using all of those things for personal and political power.

In the case of Donald Trump, as we mentioned just a moment ago, in the case of the Central Park Five, playing to the public, playing up ideas and sort of banner waving anthems to get public support. And on the other hand, really being careful to mind the sort of clubby insiders who can help him personally for political purposes, not necessarily in the broader electoral realm. So, again, in one way or another, politics and justice, partisanship and personal interrelations and power all have been blended together in mixing and matching over the years and indeed the decades and the centuries.

What we’re looking at now at this current moment, and I suppose in a way, it’s part of what makes this moment particularly seemingly unpredictable, is how all of those things are going to mesh together or not mesh together and what the outcome will be. Because despite the fact that, as we said at the outset, what we’re talking about here is the rule of law. The rule of law as a concept is clear. The actual existence of the rule of law and the way it plays out has so much to do on so many things that are so contingent and so changeable. And we are watching to see how those factors are actually going to play out. And no one explicitly knows, not even Donald Trump, although he made a claim about what was going to happen last week.

Heather Cox Richardson:

So, I love this idea that it’s in places like district attorneys where the law meets reality. But one of the things that jumped out is that just last week, Trump actually referred to Morgenthau when he said, “The legendary and highly respected district attorney of Manhattan, that is Morgenthau, would be spinning in his grave if he were told that his office was even thinking about bringing charges against the 45th President of the United States.” And what jumps out to me about that is that for historians, and I’m not just speaking for myself now that I think about it, the fact that political considerations sort of the high-minded, well, theoretically, we can’t bring charges against this president.

What would happen if we did this politically? Oh, we can’t do this. And I’m thinking of a number of presidents, not just Richard Nixon. There are many different levels at the national and even at the higher state levels where people might say, “Yeah, we can’t possibly do that.” But if there’s one group of people who would say, “Sorry, we don’t care if you’re a president or not, we are where the rubber meets the road.” It’s DAs who would very easily say, “Yeah, yeah, we are the ones who are not talking about the theory of whether or not we’ve got the rule of law. We’re talking about the reality.”

Joanne Freeman:

That is their job. So yeah, in one way or another, how they interact with that is a question, but that is their job. That is what they do, that is what they enforce and that is what they create. And so, in a sense, it’s not surprising to hear that again, Andrew Meyer writes that one morning in the spring before his death, he asked Morgenthau what his greatest fear was. And Morgenthau “did not hesitate to answer Trump.”

And I think that is largely part of the reason for that has to do with precisely what we’re talking about here, which is this blend of political purpose, wanting of power, using of the sort of insider networks to get what he wants and his lack of interest in precisely what you just mentioned, Heather, this idea that what the district attorney is about is where the rubber hits the road. And Trump, I think, in some ways, to Morgenthau represented someone who had a very specific understanding of what that rubber was, when it should hit the road and how it should affect him.