Preet Bharara:

From CAFE, welcome to Stay Tunes, I’m Preet Bharara.

Cory Booker:

So much of my work in the Senate is to bring a legislative edge to the larger moral callings of our country, and the legislation becomes easy when we start having a greater consciousness of the persistent wretchedness of the realities in which we live and our unconsciousness to our own history, even. Not knowing ourselves makes it very hard to correct the ills of today.

Preet Bharara:

That’s New Jersey Senator Cory Booker, he’s held that role since 2013, he was previously the mayor of Newark, gaining high marks for his work on reducing poverty and bringing commercial development back to the city. A member of the Senate Judiciary and Foreign Relations committees, Booker has played a central role in congressional oversight of the Russia Investigation, and in President Trump’s recent impeachment. Booker also recently co-authored the sweeping George Floyd Justice in Policing Act, and he’s introduced a bill to remove confederate statues from the US capital. Oh, yeah, he also recently ran for president, that’s coming up, stay tuned.

Preet Bharara:

Let’s get to your questions. This question comes in a tweet from Thechuckhanson, “I’m sure I’m the 100th person to ask tonight, but what is/was the constitutional justification for giving the president the power to commute/pardon.” And he adds, “By the way, we’re watching Andy Sandberg’s new flick, Palm Springs.” Well, I hope you enjoy that movie, and I’m very impressed that you’re thinking about constitutional issues at the same time you’re watching Andy Sandberg. So it’s a question that a lot of people have been asking, obviously in the wake of the commutation of the sentence of Roger Stone, let’s first look at what the pardon power in the Constitution actually is, it’s in Article Two, Section Two of the United States Constitution, the Commander in Chief Claus that lays out some of the powers of the president. It starts with, “The president shall be Commander in Chief of the Army and Navy of the United States and the militia of the several states.” Et cetera, et cetera, and it goes on to say, “And he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

Preet Bharara:

So the only limitations there you see with respect to criminal law in the United States is it has to be an offense against the United States, which means a federal crime, state crimes cannot be pardoned by the president of the United States, and that’s in fact, most crimes that are charged in the country, and except in cases of impeachment. So if the Congress takes care to impeach someone, that cannot be undone by the president, and pretty much everything else is fair game. As I and others have been saying, it’s one of the broadest and more unfettered powers of the president, as set forth in the Constitution. And there’s not really anything anyone can do about it if you don’t like the pardon or the commutation, so why have it in there?

Preet Bharara:

Essentially, the founders thought it would be a good check on the judiciary, it’s part of the system of checks and balances that you find throughout the text and structure of the Constitution, as Alexander Hamilton set forth in one of the Federalist Papers that focuses on the pardon power, Federalist Number 74 he wrote, “Without an easy access to exception in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” As you might imagine, there was a lot of debate about the pardon power, and there was in fact like there is at the moment in the wake of the Roger Stone situation, real concern about self-dealing pardons. I’ll give a couple of examples, in 1787, Virginia delegate Edmund Randolph raised the following point at the Constitutional Convention, “The prerogative of pardon in these cases was too great a trust, the president may himself be guilty, the traders may be his own instruments.” There was a concern on the part of Randolph and others that the pardon power extended even to commuting or pardoning acts of treason, which some of these folks thought was a bridge too far.

Preet Bharara:

George Mason didn’t want to ratify this point saying that, “The president ought not to have the power of pardoning because he may frequently pardon crimes which were advised by himself.” Sound familiar? But the retort from the Federalists was kind of needed this check, and that political process would be the cure, and one other possible cure, this is James Madison responding to the criticisms of the pardon power, “If the president be connected in any suspicious manner with any persons, and there be grounds to believe he will shelter himself, the House of Representatives can impeach him. They can suspend him when suspected, and the power of pardoning will devolve on the vice president. This,” Madison wrote, “is a great security.” Wonder what they would think of the current situation, obviously, they anticipated it.

Preet Bharara:

But they also anticipated a robust response from Congress, we’ve already impeached Donald Trump once, there’s some saying we should do it again, that that’s what the founders thought and that’s what the people who were opposed to the pardon power thought, the Federalists won out, and here we are. This question comes in an email from Ruth in New Jersey, “Hi, Preet, hoping for your insight on this, what do the lawsuits being filed by various US universities against the recent ICE announcement on F1M1 visas practically mean? Will the filing of these suits delay the implementation of the ruling? Signed, Ruth, and Aussie who Visa and ICE gods willing, is starting her Ph.D. in the fall. Currently living, working, and studying Antarctica from her bedroom in New Jersey.” Well, that’s a great place from which to study Antarctica, I think. So, obviously, you wrote this question in an email before a very recent development that kind of answers your question, of course, you’re referring to ICE’s July 6th policy, announced on July 6th, that barred international students from staying in the country if their schools remained online due to the threat of COVID-19 on college campuses.

Preet Bharara:

The move would have denied visas to these students and they would have had to leave the country basically immediately, and as Anne Milgram and I talked about this on the Café Insider pod, it’s a move that seems to be grounded in cruelty, and in an overall anti-immigration sentiment on the part of this administration and in particular, Steven Miller. In the wake of that policy, various universities, most notably Harvard and MIT, filed an action for temporary restraining order, attacking the move as arbitrary and capricious, and they went into court on Tuesday and lo and behold, on Tuesday at the last minute, and kind of surprisingly to everyone, the Trump administration agreed to rescind the July 6th policy. So I guess in some ways you could say that the filing of those lawsuits had an immediate effect, and that was a retreat from the position. Now, what’s interesting is why was there such a withdrawal of the position? In fact, as I was discussing with my family yesterday, to my mind and to my recollection, it is the quickest and most complete surrender on a legal point by this administration since the beginning.

Preet Bharara:

There have been other things that there has been some retreat from, but nothing so swift as this, usually they wait to get their head handed to them by one court or two courts before they moderate their position. But in this case, at literally the first proceeding in Federal District Court they went back on their position, why did that happen? There was no clear explanation provided by the government, that I’m aware of, it could be the massive, massive response to this arbitrary and capricious decision to send all these international students back even when colleges were making arrangements to keep the students here. And even though the reason they were going online for some period of time was because of the coronavirus, as the Wall Street Journal reports, “Nearly 60 colleges and universities filed a friend of the court briefing on Monday, followed by a flurry of similar legal briefs from additional colleges, higher education associations, and also companies including Adobe Systems, Microsoft, Twitter, and others.”

Preet Bharara:

In what the Wall Street Journal called, “An extraordinary rallying of forces on short notice.” Not only that, attorneys general from 17 states and the District of Colombia also sued, as have the University of California and 20 other research universities from the Western US. So by the time we got to yesterday, nine separate lawsuits challenging the new rules were filed, so it was something that was opposed by higher education. It was something that is opposed by immigration advocates, and perhaps most notably for the administration, it was a move that was opposed by lots and lots of business interests. There’s perhaps another factor here also, colleges and universities often rely on full-paying international students to meet their budget needs, and if you send them back, you can’t charge them tuition, so maybe there was a financial factor that the administration finally took into account as well. The bottom line is, for now, the ICE move from July 6th is rescinded, there is some speculation that they’re working on a more tailored order and rule, and this idea of sending international students back to the countries they came from could be back on the table.

Preet Bharara:

We’ll see, but at least we know that universities and businesses are mobilized on the issue, and if it comes back to court, they’ll fight it hard again, as they should. Stay tuned, there’s more coming up right after this. My guest today, New Jersey Senator Cory Booker has been busy crafting legislation to address the inequities of the coronavirus pandemic, he also co-authored the George Floyd Justice in Policing Act, one of the most ambitious pieces of law enforcement reform ever brought before Congress. We talked through the bills, plus Booker’s commitment to fight political polarization with love. Senator Cory Book, thank you so much for being on the show.

Cory Booker:

Are you kidding me? I am so excited to be on the show.

Preet Bharara:

I’m excited to have you.

Cory Booker:

I love it when I watch you on the news, you have made geek so chic and nerd so cool, not to mention being one of the great commentators on this country and where we are right now, so it’s an honor to be here with you.

Preet Bharara:

Well, that’s so nice, I was going to ask you a bunch of questions, but instead, perhaps you should just continue in that vein. So I should say to the audience, who is not with us live, that we’re recording this on Monday, July 13th, it’s a bit after 9:00 PM, this is the latest podcast recording I’ve ever done. So, it’s a little bit Stay Tuned after dark, so I don’t know what that will mean for the show-

Cory Booker:

I think you should call this-

Preet Bharara:

Call it Preet After Dark?

Cory Booker:

Exactly, are you drinking, do you have a glass of wine?

Preet Bharara:

Oh, yes I do, oh, yes I do. You could hear that?

Cory Booker:

Yes, this makes for a much more interesting conversation.

Preet Bharara:

I also want to make sure that you know for proper context, you may know this, but I was raised in New Jersey, so I’m a Jersey guy.

Cory Booker:

What town?

Preet Bharara:

So I grew up in the town called Eatontown, New Jersey, my dad was a pediatrician for 40 plus years in Asbury Park, New Jersey.

Cory Booker:

Wow, that’s a real-

Preet Bharara:

So I’m a New Yorker now, but very much a New Jersey guy.

Cory Booker:

But that’s some serious New Jersey cred.

Preet Bharara:

That’s very serious New Jersey.

Cory Booker:

Yeah, being down in Asbury Park, you have a lifetime membership in the New Jersey club.

Preet Bharara:

I do, and I’ll tell you one of the great accomplishments of my life recently is that the official New Jersey Twitter feed began following me.

Cory Booker:

No, and first of all, people don’t know, that Twitter feed is quite-

Preet Bharara:

It’s pretty hot.

Cory Booker:

It is hot, and he is hilarious, it is a great Twitter feed. I think it’s the only state Twitter feed that officially has moxie.

Preet Bharara:

Do we say moxie in Jersey? I don’t know.

Cory Booker:

We don’t say it in Jersey, but it’s one of those-

Preet Bharara:

That is DC speak.

Cory Booker:

No, I thought moxie was more one of those antique words that when you pull it out, people go, “Oh, ah, moxie.”

Preet Bharara:

There was a tweet that that account sent today about one of the things that we’ll be talking about, the changing of names and the removal of statues, but it’s a reference to the Redskins changing their name and that newjersey.com account tweeted, “DC is about to get a new Jersey.” I thought that was pretty good.

Cory Booker:

I cannot help but being a guy who loves a good dad joke and don’t prompt me because I will tell you more and more of them, but that is great humor.

Preet Bharara:

So, how is the Senate as a technical, mechanical, pragmatic matter dealing with the coronavirus? Are people distancing, are you still taking that little subway to the floor? How is it working just day-to-day?

Cory Booker:

So, first of all, our body is, in and of itself, I still remember it was back in the days where you could laugh at sort of things like this early in the crisis when we were being briefed by, I think we were in the SCIF too, so we were in the Classified Briefing room, about the virus and they were describing it and still not taking, in my opinion, as seriously as they should have. But they said almost to alleviate us, “It really only affects people seriously that are over 65 and might have some underlying conditions.” So one of the senators raised their hands and goes, “You mean the United States Senate?” And everybody in the Senate laughed, but in all seriousness, we are a population of people, most of us, that fall within that population as most vulnerable to this crisis. So I have seen us take a lot of our committee hearings now, you don’t have to go to, you can do it from your house and when we vote, the voting time has been extended a lot so we don’t all crowd onto the floor right away. And mask-wearing, especially in this last few weeks, has been a lot more consistent, and-

Preet Bharara:

So you wear a mask, you’re always wearing a mask?

Cory Booker:

I wouldn’t say always, I would say when I’m around other people I’ll wear a mask, but late at night when I’m walking the Senate hallways and I don’t think I’m going to see anybody, I’m not wearing a mask.

Preet Bharara:

How about Rand Paul, is he wearing a mask?

Cory Booker:

I don’t remember this last couple weeks because even Mitch McConnell now is bragging about his mask-wearing on his Instagram account. But I’m pretty sure Rand was not wearing a mask.

Preet Bharara:

Anyone else? You want to out the other senators who are not wearing masks?

Cory Booker:

No, I think we’re seeing really strong compliance right now, I have to say. I think that this last resurgence in the South and Southwest has really snapped a lot more adherence. I mean, heck, the president of the United States wore a mask in public this week for the first time and I think they realize that we are so far out of the norm of other nations that have responsible governments. From Taiwan, which I think is right next to China, and yet has seven deaths, if I have it right, seven or eight deaths, to South Korea, to New Zealand, countries who have taken this responsibility, had a national coordinated response, are dealing so well. We have I guess, what is it? A quarter of the globes cases, and rising, and this is really, really problematic, so I think that that is now giving people more of a sense of urgency because it’s not just about, I think for some of them, I don’t mean to be so cynical, and I don’t know exactly what they’re thinking is, but I know that people realize that if we are still at a point where this is not going down, the party that is most responsible may pay a dire price for that when we have an election 100 days from now.

Preet Bharara:

Do you feel in some ways that the Congress is powerless to take the lead on this? So in some areas in the country, if there’s a gap in leadership or a vacuum in leadership in the executive branch, sometimes Congress can step in and do something. Are there things that you and your colleagues can do to step into the breach because we’re not doing so well?

Cory Booker:

So, this has been one of those times I’ve been proud of my caucus because when Mitch McConnell tried to pass the first couple COVID packages, we got a lot of blame for it, we stood fast and said, “No.” And they said, “Oh, you’re holding up vital help.” But we said no until we won significant reforms that have stepped into the breach, the expanded unemployment insurance in duration, in amount was because we stood true. The idea of getting hospitals a lot more resources that at that time seemed especially life or death happened, the expanded resources. So we have been able to stay together as a caucus where you need 60 votes in the Senate to pass these bills, and refuse to cooperate until they move the bill further in terms of dealing with economic fragility and the medical crisis and some other issues as well. But what you’re talking about, I think, is the gap that we can’t stand into.

Cory Booker:

To have had a president from the very beginning that stood up and said, “Hey, this is serious, as a matter of patriotic duty like our forefathers and mothers who stood together through a great depression, who stood together through world war, we are going to have a national mobilization against this both in personal practices and community practices, as well as in mobilizing a national track and trace testing supply chain, we are going to take this on as if we are fighting a world war because this pandemic is a world war.” We would obviously, not be where we are today, there would be many more people alive and that’s the kind of leadership that Congress can’t provide because it’s not constitutionally empowered to provide that kind of leadership. That is what has really been hurting me, at a time that we need moral leadership, and command and control leadership that you only get from an executive, we have seen the president that’s been there during this crisis, and I think it has nothing to do with party because we’ve seen presidents in both parties perform well under crisis.

Cory Booker:

This has been just simply because we have a man who is uniquely unqualified for this kind of crisis and has been rendered naked before this nation for his incompetence.

Preet Bharara:

Don’t say that, I know this is audio but that causes a very terrible picture to leave in the minds of our listeners.

Cory Booker:

Figuratively, figuratively, we already established that this is Preet After Dark, and I thought that-

Preet Bharara:

It’s Preet At Night.

Cory Booker:

Preet At Night.

Preet Bharara:

But there’s another whole area of government, not the federal government but local mayors, and you were a mayor for a period of time, mayors and governors, can they step up and fill the gap is the president is not doing is and do you see that happening or does it depend on the state and the city? It seems very non-consistent.

Cory Booker:

No, well, first of all, give it to the governors, in general, we have seen governors and mayors do a lot of things right in certain states, and I live in a region in New York and New Jersey where we have two governors and a lot of local leaders. I mean, I looked at the map on CNN Today and there was only three or four states that were green, i.e. the cases going down and I’m proud of the local leadership I’ve witnessed in my state and in my metropolitan area. Delaware was one of those states as well, but there’s only so much that you can do, I remember sitting in the command center in New Jersey with my governor talking to the White House’s team and just thinking to myself, “It’s just remarkable to me that they were sounding as if we were still being governed under the Articles of Confederation, this loose confederation of states, where all responsibility resides with them and not with any kind of central coordinated government.” It was astonishing to me that they did not want to take responsibility for coordinating, portioning, and bringing about strong supply chains during the depth of that crisis.

Cory Booker:

So there’s some governors that are obviously the outliers, as we are seeing in places like Florida, but the reality is, our governors now still need there to be a national World War II-like mobilization around testing, which is still woefully low in the United States. Track and trace, we could have done that, we did that with TSA agents, a national workforce focusing on these issues. There’s still some serious issues around supply chain and more, and then it’s just the moral leadership when you have a president that’s tweeting out more than a month ago, “Liberate these states.” I just talked to a state-wide leader in Michigan who was telling me that things were going well, there was a lot of bi-partisan work, and then the president, when he said that, it was like striking a match and throwing it at the state of Michigan because suddenly you had the politicization of science. It’s as if we’re responding against the Age of Enlightenment and going against the science that we all know to be true, and instead, it became political.

Preet Bharara:

Yeah, since you say that, I wonder if you think the president has basically grown tired and weary of this and have given up because it seems like, further to what you just said a second ago, that the White House has spent more time in the last 24 to 48 hours providing opposition research against Anthony Fauci than undertaking any serious policy review. What do you make of the attacks on their own health official, widely respected by both parties for decades, what do you think of that?

Cory Booker:

Look, there is something powerful about real leadership, the military leader that will eat last after all their men and women have eaten, the leader that will charge into battle first, the leader that knows self-sacrifice and humility, I could go on with the characters of leadership, leaders that we hail and herald. I mean, the stories of Washington during just some of the harsh winters and this is just not that, this is a guy in the White House that seems so obsessed with the president himself. It’s about his own ego, it’s about their own electoral longevity, their re-election, it seems like everything seems to be filtered through that, not what’s in the best interest of their supporters in Tulsa. Heck, bring them out, and we saw as presidential candidate and former head of the National Restaurant Association, who last I heard was in the hospital, who had attended that rally without a mask, Herman Cain, he seems to be content with putting other people at risk, other people in danger.

Cory Booker:

How it’s going to relate to him, remember we started this crisis with him talking about not letting people off of a ship because of how the numbers might make him look, and you fast forward that to him now saying that governors who don’t want to open schools, it must be about them wanting to make him look bad. So he has not been able to do anything but focus on himself in a crisis that demands a president to not care about his own re-election or himself, but the wellbeing of a county. By the way, if he had started that way, his numbers would be so much better, so again, I just think that he is uniquely unqualified for this moment, I can’t get into his head, I don’t know what the internal dialogue in the White House is. But I know that they are spectacularly failing this moment in history and can’t avoid that fact when you have cases going up so dramatically and America is such an outlier when it comes to the cases, and it really falls at the front door of the White House.

Preet Bharara:

Can we talk about another feature of this terrible pandemic, at least in the United States, and that is, I know this is a subject that is very close to your heart and should be close to everyone’s heart, and that is that the coronavirus is disproportionately affecting, in a very dramatic way, people of color, black communities in particular. Why is that and what does that say about us, and what can be done about it?

Cory Booker:

Well, I think we first have to tell ourselves the truth, we live in a nation that there has never been a time where there have not been savage disparities in the existence of Americans along lines of race that extend everywhere from housing, to jobs and employment, to education, to healthcare, to even the very air that we breathe. The number one indicator of whether you are breathing toxic air or drinking toxic water, living near a Superfund site, the most predictive feature is the color of your skin. So if you know you are already living in a country where blacks have higher rates of diabetes, hypertension, higher rates of asthma, lower life expectancies, then, of course, this disease is going to accelerate that. Of course, a downturned economy where blacks are over-represented in the jobs that are deemed essential, i.e. you have to go to work, that we are going to see it ravishing more African Americans, and that they are more economically vulnerable, therefore, to this virus.

Cory Booker:

So all of this is preying upon those things. Look, I live in an amazing city that was, by design, housing discrimination, redlining, disinvestment, outright racism, and New Jersey was a state that had horrible real estate steering, preventing blacks from moving into the suburbs. My parents had to get a white couple to pose as them to buy the house I grew up in New Jersey, and so the community I live in, which has a disproportionate amount of environmental hazards, it has the county incinerator, it has the highways that intersect inside of it, and all of the things that were done, this is a community created to be poor intentionally. So you have all these issues and environmental toxins, compounded by racial segregation, compounded by poverty, further accelerated by a criminal justice system that is so savage, as a guy who grew up in a white community and went to elite schools like Stanford and Yale, I saw a lot of drug use in my journeys in my youth.

Cory Booker:

Now, living in Newark, New Jersey, I’m stunned that black children who do the same things I saw the more elite and privileged children do get ground into the criminal justice system at rates that are astonishing. Remember in 2017, there was more marijuana arrests than all violent crime arrests in this country combined, there’s no difference between blacks and whites for using marijuana or smoking marijuana or selling marijuana, but blacks are about four times more likely to be arrested for it. And you know this, Preet, that it’s a life sentence because when you have a criminal conviction for doing things that two of the last three presidents admitted to doing, for the rest of your life you’re going to find it hard to get a job because you have to check a box that says you have a criminal conviction. You can’t get loans from banks because you have to check a box that you have a criminal conviction, the American Bar Association points to 48,000 collateral consequences for doing things that two of the last three presidents did and get caught.

Cory Booker:

All of this is going on in America right now, and we are wondering why we’re seeing such carnage from a disease that is feasting upon the injustices that already existed. So, for me, the urgencies of this moment in time are not just what we’re seeing with the horrific deaths of George Floyd and Breonna Taylor, the endemic sort of systemic racism is real in our country. That is just the ultimate violent manifestations of deeper problems we have with injustice in our country.

Preet Bharara:

So there are other areas of injustice that you’ve talked about and you’ve pivoted to before I had a chance to, before I get to some of the issues relating to criminal justice reform in the aftermath of the killing of George Floyd, I want to ask you about a bill that I think you had sponsored before, and you have reintroduced, called the removal act. Can you describe what it is, and what you think about its chances?

Cory Booker:

Well, first of all, I just want to say to you that this is a time in American history where we have to begin to have a broader conversation about race in the laws that we’re trying to put into place, and this is … Would you mind, I’m sitting here next to a book that I just finished by Eddie Glaude that I just want to read you a paragraph of-

Preet Bharara:

Begin Again, and you know what’s funny? Guess who I interviewed during normal business hours today? Eddie Glaude.

Cory Booker:

Are you serious?

Preet Bharara:

Yeah, for a podcast that will be dropping the week after yours does, so it’s very serendipitous.

Eddie Glaude:

Baldwin says that, “America’s always changing, but it never changes.” So it’s always moving, but then there’s something underneath it that is constant, so one could say if you hold the belief that white people matter more than others, that belief looks like one thing in the context of slavery, it looks like another in the context of Jim Crow, and it looks like another in the context of the first black president. But the belief still obtains across those different historical ethics, it’s still doing work, so we’re hearing the lie right now, the way in which it’s being reasserted in the face of Black Lives Matter and the challenge to the form of policing in the country, we’re hearing it in the defense of confederate monuments. In the defense of our heritage, in the defense of a certain understanding of America’s beginnings, that’s a reassertion of the lie that bears a family resemblance to what we’ve been telling ourselves since our founding.

Cory Booker:

I love that because first of all, he and I are doing an Instagram Live on Sunday evening where we’re just going to have a conversation about race and this is a paragraph that he basically is quoting Baldwin on page 105 of his book, and it’s a quick paragraph but it speaks to the agony of the moment and it says, “I’m talking about what happens to you if, having barely escaped suicide or death, or madness or yourself, you watch your children growing up and no matter what you do, no matter what you do, you are powerless. You are really powerless against the force of the world that is out to tell your child that he has no right to be alive, and no amount of liberal jargon, and no amount of talk about how well and how far we have progressed does anything to soften or the point out any solution to this dilemma. In every generation, ever since negroes have been here, every negro mother and father has had to face that child and try to create in that child, some way of surviving this particular world. Some way to make the child who will be despised, not despise himself. I don’t know what the negro problem means to white people, but this is what it means to be negroes.”

Cory Booker:

And Baldwin’s writing there is a stunning indictment of where we are in this country, which is this horrific tradition that my parents taught me in the eighth grade when I had grown over six feet tall and was a boy in a man’s body they began to have to try to teach me that people’s perceptions of me could cause my death. They could cause my bondage, they could cause me severe bodily harm and especially as I started to drive, and witness this myself with growing up with mostly white friends, but yet my disproportionate interaction with the police, to be accused of stealing things all the time. To be followed, to be surveilled, it is this deep understanding of the truth of our country that we are still trying to throw off the yoke of bias, of racism, of people being treated differently in this country, not because of the content of their character, or the quality of their ideas, but because of the color of their skin.

Cory Booker:

So much of my work in the Senate is to bring a legislative edge to the larger moral callings of our country, and the legislation becomes easy when we start having a greater consciousness of the persistent wretchedness of the realities in which we live and our unconsciousness to our own history, even. Not knowing ourselves makes it very hard to correct the ills of today, if you don’t know about the original removal acts signed into law in the 1830s by Andrew Jackson. If you don’t know about the massacres in our countries history, not just of Native Americans, but from the Colfax Massacre, to Rosewood, to the slaughters of African Americans in the 1800s and 1900s, it is very hard for you to address the injustices of today. So I’ve spent a lot, as the fourth black person ever popularly elected to the United States Senate, knowing every time I step onto that Senate floor, the weight of history, and especially the weight of history unexamined of the urgencies that exists in this country today, to heal, not for the sake of black people, or native people, or Latino people, but for the sake of all of us.

Cory Booker:

All of our wellbeing hangs in the balance right now, and the question that Eddie asks so persistently is, “We are a nation in search of ourselves, will we indeed become a true multiracial democracy, or will we perish because of our inability to address the injustices that still so separate us in this nation by schools, by residence, by prison bars, by health and wellbeing?”

Preet Bharara:

Before we get to some of the legislation then, following up on the point you just made, has it become easier with respect to some of your fellow senators, have some of your fellow senators become more awakened and open to these falsehoods and become more aware of the legacy of racism and slavery and everything else in the wake of the killing of George Floyd? Have you noticed a difference in the quality of conversations you’re having with your peers?

Cory Booker:

So the short answer is yes, absolutely, on both sides of the aisle, and the answer is no, where I’ve had in this last few weeks, banging my head against some of my colleagues that just don’t seem to understand and still, as one of my colleagues said in a judiciary hearing, we were talking about just the general challenges with institutional racism and he went off-

Speaker 4:

You changed the phrase from systemic to structural racism, what does that mean? That means everything, every institution, every person in American is a racist?

Cory Booker:

… and not even understanding the differences between institutional racism, the implicit racial bias even, and overt bigotry. Then when I listened to him, I realized that this seemed to be more of a talking point to me to enrage grievance politics among their Republican base, that the problem, and you would know this, that the polling in the past has shown that a large percentage of white Americans thought that reverse racism was a bigger problem than racism. So, I see both in the Senate and often get frustrated that we’re not leading with a yearning to understand, but still digging in, and that’s the reason why I believe we haven’t passed, something as simple as the Lynching Act. That’s why I think we haven’t passed some of the common sense things that would actually lower taxpayer costs and elevate human flourishing in our country.

Preet Bharara:

Talk for a minute then about the Confederate statues that still take up space at the capital?

Cory Booker:

So, what we’re trying to do right now is something very simple and very obvious, which is that there was about a four to five year period in America where Americans really engaged in treason against the United States and led armed rebellion against this country, and in the process, plunged us into the bloodiest war of our country’s history, in defense of the enslavement of other Americans. What we have in the capital of the United States of America right now is what is inarguably, some of our most sacred civic space, we have statues that are tributes to these traitors. Tributes to those who engaged in horrific slaughter in the name of defending slavery against their own country. So, my bill that we introduced is to remove those statues from our capital, every state, so folks know, every state gets to send two statues to represent, I think the language is, “The character of their statue, the spirit of their state.” And we have some states that have been steadfast, and of all people in the history of our 50 states, and there’s extraordinary leaders, a bounty of choices, they’ve chosen people who took up arms against their own country in an act of brazen treason in defense of the enslavement of other Americans.

Preet Bharara:

So what’s the likelihood of success?

Cory Booker:

Oh, we’ll succeed. I mean, there’s no doubt that those statues will be removed, it’s not a matter of if, it’s a matter of when and I think the when it coming sooner and again when you see Mississippi taking the Confederate flag off of their flag, when you see the military moving to rename bases, these are not liberal organizations.

Preet Bharara:

They are not. Do you have any worry that some of these quick actions that are easily done, I don’t mean physiologically easily done because there’s a history behind them, but as a practical matter, it’s not that difficult to remove a statue or take down a flag. But that will cause people maybe not to focus as resolutely as they might on more fundamental change, or do you think these things are just the beginning of what can become a cycle of more fundamental change?

Cory Booker:

Well, that’s why I read the Baldwin to you, that’s why I talk about our history is because when it is a consciousness shift, history accelerates so much quicker, and we see that we have the capacity with the incredible breadth of talent we have to focus on many different things. I’m one United States senator, my dad would tease me mercilessly and say I have more degrees than the month of July, and I’m not hot. But I do have some expertise in some areas, but I do not have expertise in all the areas in which Congress has to legislate on, and yet we’re getting things done in a whole bunch of different areas. The great American public has expertise in lots of different areas, we could move a lot more quickly and focus on a lot of different things. So a lot of people say, “Well, we’re getting caught up on these hurtful, harmful symbols.” I hear the arguments, “But it’s not as important as getting rid of all the lead service lines that go into children’s home, we’re a nation that still has over 3000 jurisdictions where children have more than twice the blood lead levels of the kids in Flint Michigan and isn’t that more important in terms of racial justice?”

Cory Booker:

And I’m like, “Well, why can’t we do both? We have the capacity to do it all.” I’m not going to just pick and choose my battles here, I’m going to try to bring the moral awakening that will make all those battles seem almost like the reality that, “Why are they still standing? They should dissolve before us as we go onto higher ground.”

Preet Bharara:

So let’s talk about something that’s a little tougher, that I know you also care about deeply, and that is policing reform and dealing with police brutality. Your response for something called the Justice in Policing Act, talk about that for a minute and why you think that the provisions in that bill are important, and what the chances are there?

Cory Booker:

So, let me tell you the history of this, after George Floyd’s death, I got on the phone with key allies of mind, Karen bass, the head of the Congressional Black Caucus, Kamala Harris was my first extraordinary partner of mine on a lot of things and with the Congressional Black Caucus and eventually the head of the Judiciary Committee, incredible legislator Chairman Adler, we all went to work on writing a bill that we wanted to be as narrowly tailored as possible to deal with what activists were calling for in the sense of saving black lives. What would save black lives, what was it going to be that could prevent the deaths of people like George Floyd, and prevent the deaths of people like Breonna Taylor? And we pulled together a lot of bills that have been around the Senate and the house for years, some of them we wrote, some of them have been around since I was in law school, probably.

Cory Booker:

And we put them together into a bill that deals with the basic idea of accountability, and that accountability really means three things. To have accountability you have to have clear standards of what we’re going to do and what we’re not going to do in this country like no no-knock warrants for drug cases, that would have saved Breonna Taylor. No carotid chokeholds, that would have saved Eric Gardener, what are the standards by which we believe in, common standards in this country, and by the way, those things are wildly supported by the majority of Republicans. Number two, our bill just says, “Well, we’ve got to expose the data for this country to see.” So whether you’re an activist, or whether you are a local legislator, or the ACLU, the data of policing, how many pedestrian stops are you doing that are African American versus white? What are your misconducts, use of force? All that data has to be brought to sunshine, the ultimate disinfectant.

Cory Booker:

So accountability is a standard, is the measures, and the final things is the consequences when you fail to meet those standards, and we wanted to have real teeth of consequences, in other words, being able to hold police accountable for misconduct in the federal courts, both through the civil courts and the criminal courts. And to be able to arm authority with the power to investigate, so giving the DOJ a subpoena power for pattern in practice investigations. And to empower local attorneys general in states to do pattern in practice investigations as well.

Preet Bharara:

Yeah, I mean, part of the problem is you can give powers to DOJ on pattern in practice investigations, but they have to have the will to want to engage in them, and I don’t know what the Senate can do about that. You can give people powers that they don’t want to use because they don’t care so much, do you have a thought about that?

Cory Booker:

I have a lot of thought about that. So one is, we have to make sure the powers are there, so I want to make sure even if that as the Obama administration, they didn’t have subpoena power, they could have done a lot more. They didn’t have proper funding, they could have done a lot more, so the question is, what do you do when you have a president that will not only use pattern in practice investigations, but this president has eviscerated the civil rights division of the Department of Education? Protecting LGBTQ kids, trans kids in particular? Black and brown kids in terms of disciplinary? They’re not using all the powers of the EPA to hold polluters accountable, we have a massive fall-off in collections from corporate polluters under this president, dramatic fall-offs. What I have to say to you now is that you’re right, there are going to be some presidents that will not use their powers to do the things they wanted

Cory Booker:

In fact, they’ll try to use those departments to often do the very opposite, like the EPA is doing the opposite of what it was intended to do in many ways by empowering corporate polluters. So my point is, is that’s going to have to be the cost of a democracy, is you are going to have voting, and voting has consequences, and we are paying the dire consequences right now of having massive fall-off in voter participating between 2016 and 2012 or even 2008, and that hopefully, this is a generational lesson. I know I’m traumatized by this last four years in the sense of seeing the pain and the hurt, and the agony caused by this president, and hopefully, it will make us to never have this mistake again where we’re asking questions, “Well, why should I vote? It doesn’t really matter.” Well, we’re seeing that now.

Preet Bharara:

How should we think about the police as they are, and as they should be?

Cory Booker:

Well, I tell people all the time, a race in about 2006, I’m a head of a police department, I’m a new mayor and I sit down with the head of the FBI and the FBI director in the state of New Jersey is giving me a presentation about gang intelligence in the region. And I ask him very purposefully a question like this, I say, “How do we solve this?” And he looks at me like I was asking sort of a silly question, and he just said very honestly, “We don’t solve this.” In other words, he knew that they weren’t solving a problem, they were treating the symptoms of a problem that really has its root in society’s lack of interest in investing in things that we know will work to ultimately end the necessity of him doing what he has to do on gang interdiction. So that’s the rub we have in America right now, and by the way, blacks are 2.5 times more likely to be killed by police than somebody’s that’s white, people with mental illness are 10 to 15 times more likely to be killed by the police than someone who’s white alone.

Preet Bharara:

And the police have no expertise in dealing with mental illness?

Cory Booker:

No, and so the question is, why do we as a society choose to deal with it that way? In fact, let’s just take people who are homeless with a mental illness, Seattle did a study, what was more expensive, leaving them on the streets homeless or putting them in supportive housing? Now, if anything knows anything about supportive housing, it’s expensive. Well, this organization, they’re called Plymouth Housing Group, did a study for 23 people, they saved about over one million dollars for taxpayers because those people with mental illnesses on the streets homeless end up in hospital emergency rooms and jails and having to be engaged by the police. So, we know what to do, this country, we have ways of dealing with violent crime before it happens, just expanding Medicaid has shown direct correlation with reducing crime. We know that there are interventions, evidence-based interventions that do not involve police that lower crime, elevate human dignity, and human flourishing and actually are cheaper, save us taxpayer dollars.

Cory Booker:

But yet we are a society that professes to cherish freedom and liberty, and yet we incarcerate more than any society has done in the last century or two, we are 5% of the globe’s population and we’re one out of every four incarcerated people on the planet earth, one of our every three incarcerated women on the planet earth are here in the United States of America because we don’t want to invest in the things like a treatment for people with addiction. Healthcare, help for people who are economically fragile, and more, and that is the appalling truth, is that we are a society that believes in love from our most common faiths, profess an ideal of loving thy neighbor. From our very founding documents where our Founding Fathers ended the Declaration of Independence with an idea of love, “We must mutually pledge, pledge to each other our lives, our fortunes, our sacred honor.” When you look at our criminal justice system as a whole, there is no sacred honor in grinding into our prisons and jails the poor, the mentally ill, the addicted, and the black and brown at astonishing rates.

Cory Booker:

And then doing to them in prison things that are unconscionable, like shackling pregnant women when they’re giving birth, like putting children in solitary confinement where psychologists conclude that that is a form of torture and permanent brain damage. We are a nation that has horrors that go on in our prisons, and it’s done in our own name when we say, “The People versus.” This has again been rubbed raw by the COVID virus that is exposing … And in fact, I ask every warden in prisons I visit, “Is there people here that don’t belong?” And every one has said to me, “Yes.” And then you get a situation where Kalief Browder, on one hand, a child, and I remember going to Rikers Island on my first trip and encountering all these children who had been there for months, and months, and months with no trial, Kalief Browder was in Rikers for over two years for stealing a backpack.

Preet Bharara:

For longer periods of time than they would ultimately be sentenced to.

Cory Booker:

Exactly. Then came out and committed suicide, a majority of youth suicides in prisons are people that are immediately released or kids that have put in solitary confinement for long periods of time. That’s the justice system on one hand in America, and then you get Roger Stone, who was convicted and doesn’t serve his sentence because he gets a presidential pardon, as Bryan Stevenson says-

Bryan Stevenson:

I don’t think, in this country, when we have a criminal justice system that treats you better in too many places if you’re rich and guilty than if you’re poor and innocent, where wealth is determinative of outcomes, that we should be killing people in that kind of system.

Cory Booker:

… “We have a criminal justice system that treats you better if you’re rich and guilty than if you’re poor and innocent.”

Preet Bharara:

And especially if you know the president, and especially if you have committed your crime in service of the president, by the way, this was just revealed a couple of hours ago, you may not have seen it yet, not only was his sentence commuted, but every aspect of his punishment was wiped away, including the fine that was levied, supervised release and everything else. Do you have any further comment on the commutation of Roger Stone’s sentence?

Cory Booker:

Well, it so delegitimizes, I mean, you wonder, when I walk my community and I talk to young people and they do not see legitimacy in the criminal justice system that treats them so badly, so differentially because of where they live because of the color of their skin, and yet others who are found guilty of doing things. Betraying their country, doing things that were treasonous, and yet they get a different kind of system, a different kind of treatment. That’s the difficulty that I think is hard to stomach, is that you talk about an erosion of trust, you have so many people in this country who just do not believe in the institution of justice and that justice is blind and the ideal that we hail and we wave about in people’s faces who just feel, through all their experience, can see that that’s a lie.

Preet Bharara:

You have said, “I believe that Bill Barr should go.” Why is that?

Cory Booker:

I mean, where do I begin?

Preet Bharara:

I don’t disagree, I’ve said the same thing, but I’m not a US senator.

Cory Booker:

Yeah, no, I am crushed by Bill Barr because I didn’t vote for him, but I had people that are involved in private practice that assured me, I should have gotten in writing their assurances because I would love to send it back to them, that talked about the kind of honor that he would bring and that he would hold Donald Trump to account. But he is performing like Donald Trump’s personal lawyer, and you saw that from the very beginning with how he described the Mueller Report before he released the Mueller Report, that he was operating as Donald Trumps personal lawyer and not as the independent Attorney General whose loyalties seem, of Barr, in my opinion, more towards the president who has so implicated himself. As opposed to being loyal to the American people, and I think he’s betrayed his oath.

Preet Bharara:

What do you think about the chairman of the committee on which you serve, the Judiciary Committee, Lindsey Graham, saying that he wants to call Robert Mueller to come testify before the Senate in the wake of Mueller’s op-ed, do you think that’s a good idea, do you support that?

Cory Booker:

No, I’ve spoke out passionately, wholeheartedly against it, and I just think that here we have a moment where the president is clearly in crisis by his own making and it’s just like the Benghazi hearings that they had ad nauseam in the House of Representatives. This is an attempt to distract this country from the real ongoing issues and do the presidents bidding in the United States Senate to further a bunch of his conspiracy theories. I’ve said this point-blank, that we’re working on this right now in the midst of a pandemic with so many other urgent issues pressing, there’s no urgency in this in the way they’re pursuing is right now given all else that’s going on that we should be working on.

Preet Bharara:

I was asked by a mutual friend to ask this question, which may not make perfect sense to everyone, are you a werewolf or a villager?

Cory Booker:

I hang out with a very geeky, nerdy group of people and we play the game Werewolf, and I am telling right now I am a villager, I am not a werewolf.

Preet Bharara:

Is that good or bad?

Cory Booker:

In the game you cannot admit if you’re a werewolf, you try to lie to your friends in the game to convince them because if you’re a werewolf, you’re trying to kill people and you don’t want people to know you are because then they’ll kill you. So it’s really a game of persuading people that you are benign even if you are not, so it is a hilarious game that I have spent way too many late nights, during the holidays is usually when we play and I have laughed so hard at times, I’ve cried.

Preet Bharara:

Well, we’ve learned something new. Last question because I know you have to go and it’s getting later even for me, do you have hope for the future and in one or two sentences, why?

Cory Booker:

Well, my definition of hope is maybe different than yours, I think that hope is the act of conviction that despair will never have the last word. I think real hope is bloodied, is battered, is bruised, I think real hope has to be calloused over and scarred because hope is daring, and hope takes risks and I think that hope is muscle, it is fiber, it is sinew, it is tough. So I will always be hopeful, I will always choose hope, even if there’s no reason to because that very choice can ignite possibilities, and I will never let despair in this country have that last word.

Preet Bharara:

I knew you were going to say something that would make me feel better, and our listeners feel better. Senator Cory Booker, thank you for being on the show, thank you for your service, and thank you in advance for all your future service, it was really a treat, thank you.

Cory Booker:

No, I’m grateful, you are truly somebody I respect and admire, and love, love listening to. So it was nice to be in conversation, next time we need to have more balance and I get to ask you some questions as well.

Preet Bharara:

I’m happy to do that, but I should warn you that I’m a werewolf.

Cory Booker:

You’re a werewolf for justice, my friend.

Preet Bharara:

A werewolf for justice, whatever it takes. Thank you, Senator, take care, be well.

Cory Booker:

All right, you too.

Preet Bharara:

My conversation with Cory Booker continues for members of the CAFE insider community, insiders get bonus Stay Tuned content, the exclusive weekly podcast I co-host with Anne Milgram, the United Security podcast co-hosted by Lisa Monaco and Ken Wainstein, recordings of weekly notes by Elie Honig and me, and more. To get a two-week trial for free, head to café.com/insider, that’s café.com/insider. Hey folks, before we wrap up for today I want to take a moment to acknowledge a special group of listeners who join us every week for Stay Tuned and the CAFE Insider podcast I co-host with my friend Anne Milgram, and during the time we’ve been doing these podcasts we’ve little had tens and tens of millions of downloads. So many listeners from all over, and you might think that they’re all in the United States because we talk a lot about domestic policy and legal issues that resonate in Washington and around the United States of America. But when I started Stay Tuned, I didn’t anticipate our show resonating with so many people all over the world, you might be surprised to know that we have listeners in 163 different countries. Who knew there were that many countries in the world?

Preet Bharara:

Different timezones, different politics, different circumstance, and yet each week you join me here, and for that, we at CAFE are grateful, and not only do people around the world listen, they’re just as curious and inquisitive as the folks who tune in within the United States. We get tons of questions each week from our friends in the international community, and people send questions from all over, like Ed Stoppard from the UK who wrote in to ask about the constitutionality, or Ranbir from India, who wrote in to talk about patriotism. Many of the international folks, obviously, are ex-pats from the United States, but many more are not, so I want to thank you for your emails and for your notes, and for continuing to ask great questions. In case you’re curious, I’ll give you the top five listeners by country, in fifth place, Germany, a lot of listeners in Germany. Fourth place, Australia, third place, the United Kingdom, second place, Canada, and of course, the top spot, the US.

Preet Bharara:

And also, believe it or not, we had at least one listener in each of the following countries, Angola, Belarus, Libya, Macedonia, Niger, Palau, Somalia, and Venezuela, and so from Botswana to Honduras, to Israel and Haiti, from India to Lithuania, Russia, Georgia, and Lebanon, thank you for supporting our work, and drop us a note and tell us why you listen. Well, that’s it for this episode of Stay Tunes, thanks again to my guest, Senator Cory Booker. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen, every positive review helps new listeners find the show. Send me your questions about news, politics, and justice, tweet them to me @preetbharara with the hashtag #askpreet, or you can call and leave me a message at 669-247-7338, that’s 669-24-PREET, or you can send an email to staytuned@cafe.com. Stay Tunes is presented by Café, The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore, and the café team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noa Azulai, and Geoff Isenman. Our music is by Andrew Dost. I’m Preet Bharara, stay tuned.