Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Mimi Rocah:

It just felt very uncomfortable to me. I think everyone has to make that personal decision for themselves, but I do think it highlights also a structural issue and problem with having prosecutors be elected.

Preet Bharara:

That’s Mimi Rocah. She’s the former District Attorney for Westchester County and a former colleague of mine at the Southern District of New York. She made national news when she announced to run for DA in 2019 and sent shockwaves through the legal community when she decided not to seek re-election last year. She joins me this week to discuss her remarkable choice to opt out, the political circumstances surrounding her decision and why DA-ships across the country may be structurally unsound. That’s coming up. Stay tuned.

How did one DA make the decision to walk away? Mimi Rocah, welcome back to the show.

Mimi Rocah:

Thanks, Preet. Great to be back with you.

Preet Bharara:

So lots of interesting things going on in the world. I want to spend some time though and talk to you about being a prosecutor and then not being a prosecutor. We have been friends for a very, very long time. I think now, this is how old we are, 20 something years. Maybe 23 or 24 years.

Mimi Rocah:

Yep. 2001 I started in SDNY.

Preet Bharara:

And you made the momentous decision, we talked about it at great length when you were deciding, to run for a very important office, the District Attorney of Westchester County, where I would be one of your constituents. This was in 2019, I think you made the announcement.

Mimi Rocah:

Yeah.

Preet Bharara:

I campaigned with you and for you and you were successful in defeating an incumbent. It was a big deal. It takes a lot of time, effort, resources, diligence, resilience. And then you got the job and then I would say by my account, and by most accounts you’re very popular, you did a great job and you probably would’ve cruised to a second term. And some people view these elected offices, whether they’re DA jobs or some other jobs, as technically not life tenured, but incumbency is very powerful. And you decided not to run again. So let’s start with that. How come?

Mimi Rocah:

Yeah. I will say first of all that it was amazing to win against an incumbent. It showed me the power of grassroots activism and people appreciating someone who they thought was genuine, which I tend to be. And of course, you helping was very powerful, so thank you for that. I loved the job. It was really an honor, as you know, to lead people who are so dedicated to public safety and trying to help people, both victims and also defendants when warranted. I went into the job with a list basically of my top 20 goals of things I wanted to change, tweak, modernize, and I think we accomplished almost every one of those. So it was a very hard decision not to run. But at the end of the day, while I loved the job, the process of running again, from sitting in the seat as the DA, as a prosecutor, after I had spent a good three and a half years really trying to put up guardrails and keep boundaries between politics and the DA’s office, which was harder than I thought it would be, I did not feel comfortable jumping back into the political side of it.

Preet Bharara:

I noticed by the way, you started to say you had a list. I was cynically going to ask and obviously facetiously going to ask if you had a list of enemies you’re going to prosecute, which sounds crazy, but as we’re recording this on Thursday, February 20th, minutes ago, Kash Patel was confirmed to be the director of the FBI who famously has some version of an enemy’s list. So I’m glad you didn’t do that. But how personal was this and specific was this to you as opposed to a commentary on how necessarily an incumbent DA might have to compromise himself or herself to do the politics of running again?

Mimi Rocah:

I think it’s both. I mean, there’s no question that because a district attorney is an elected position, it necessarily involves campaigning and running and there are some exceptions, for example, carved out in the ethical rules in New York state that govern district attorney. I mean they’re not rules. They’re really an advisory. And they say I can’t endorse other elected officials as the sitting DA because that would be such a powerful endorsement. But if I am running for reelection, I can campaign. So it’s obviously a contemplated part of the process. I think for me personally, having grown up, and you will relate to this, in the DOJ system that up until now I viewed as very much apolitical. I’m sure there are exceptions to that, but you certainly weren’t out campaigning and getting endorsements from other elected officials. I mean, there’s always a certain level of politics with a small P involved in leading any institution or office, but the kind of politics we’re talking about and politicking is not involved.

And as you know, there were time-honored traditions at DOJ that did put up walls and guardrails about the elected officials and the sort of non-law enforcement folks influencing the job of the head prosecutor. None of those exist in a DA’s office, which I knew going in, but I think I underestimated. People ask me, “What’s the thing that surprised you the most?” I think the thing that surprised me the most was how much people who have nothing to do with law enforcement or the DA’s office would try to influence decisions of mine about cases, about the running of the office, about staffing, about things that quite frankly I don’t think they had business trying to influence. And I was very comfortable holding those off while I was DA. But I personally … And this is where I think it becomes personal. I think people have different comfort levels for something like this.

I personally did not then feel like I could turn around and reinsert myself into this political world and go to functions with the Westchester Democratic Party and seek endorsements and be on mailers with people who I had held at arm’s length. I do think a big part of that is because of my background from people like you, being taught about how hard it is to earn personal integrity and how easy it is to lose, doing the right thing in the right way for the right reasons. All those things we say, I felt them very much in my gut when I was deciding whether or not to run again, which meant reinserting myself in this political world and it just felt very uncomfortable to me. I think everyone has to make that personal decision for themselves, but I do think it highlights also a structural issue and problem with having prosecutors be elected.

Preet Bharara:

Do you think given your experience in coming back to civilian life with a state like New Jersey where I’m from, which has almost two dozen district attorneys appointed by the governor in conjunction with the Senate, is that a better system?

Mimi Rocah:

I think there’s no perfect system because obviously there will be flaws with having any one person hold the power to appoint prosecutors for some of the same reasons we’re talking about. But overall, yes, I think it would be a better system, having now gone through this experience. I do think though I’m realistic that that’s probably not going to happen here in New York and probably other places. And I think there are lots of guardrails and structural safety nets that can be put into place to make this a better process so that it’s not as much of a conflict. But overall, I do think that having non-elected prosecutors is a better system. And one other reason I’ll say why. The whole rationale behind having prosecutors be elected, which is a very good one, is that they’re accountable to the people. And that sounds like a great idea and would be a great idea, but prosecutors across the country are incumbents who stay in the job and don’t have much of a challenger.

And if they do, it’s extremely hard, extremely uphill if you’re not part of the machine, part of the party. I mean, even in Westchester, part of why it was such a big deal that I won a primary against the incumbent is the way it works here, and I don’t think this is so unique, is that the party kind of picks who its candidates are and there’s a pecking order and you’re in line and you have to earn that by doing a certain amount of work for the party, so to speak. Not that that’s a bad thing. I just don’t think it should be the main qualification for who gets to be the lead prosecutor. I remember one incident when I was running and someone at my hometown, Scarsdale Democratic Party, stood up and was so angry at me. I mean, it wasn’t just what he said.

It was the degree of anger that I dared to run when I hadn’t, according to him, earned my turn in line because I hadn’t been, as he said it, passing out pamphlets at train stations for other elected officials. And I remained calm though it was hard, and I said, “You’re right. But I have been a prosecutor for the past 20 years, so I think that qualifies me more.” But that’s the kind of thing you’re up against. Because I was changing the order of how things were supposed to be. I think that carried over once I was in the seat, quite frankly. But I think I was seen as a threat by some other elected officials.

Preet Bharara:

I have an observation/question just in thinking about what’s going on in the country at the moment and hearing you speak. There’s a lot of concern about what’s going on at the Justice Department. There are memos that have been issued by Pam Bondi, including one about how prosecutors are not allowed to use their own discretion in certain areas. An emphasis on bowing down. These are not her words, but it could plausibly be read this way. Bowing down to the policy views and priorities of those who won the election, which is not necessarily inherently wrong, but that’s odd language to use in a memo, particular reference to the victors in an election. And there’s a lot of people saying the problem with Trump and the Republican Party at this moment is they’re blurring the line between politics and justice and prosecution, and you’re suggesting that’s not limited to one party. Is that fair?

Mimi Rocah:

I think it is fair, and it’s part of why I think it’s so important to talk about this. I mean, I don’t want to cast the net too broadly. Just like I don’t think every Republican does this. I think Trump and his allies and people he picks do it with passion and vigor and it’s actually a goal, not just a feature. I think that some Democrats, even unintentionally, at least in my experience here locally, don’t understand at least … I’ll give them the benefit of the doubt that it may not be intentional, but they certainly don’t understand the value and significance of having a prosecutor making decisions about cases, about priorities in the office that is really independent of politics and the party. And some examples at the very beginning, I remember, of my term, there was a press conference we were having announcing a joint taskforce on gun and gang violence, and it was with FBI, with the taskforce. It was all law enforcement.

And I got a call from the then deputy county executive who was very angry with me that he and other elected officials had not been invited to this press conference. And he actually said to me that I was not being a team player and I felt like I was in some bad movie because it was … I mean, I said what I imagine you would expect me to have said because I think anyone from SDNY and that background would have said, which is, “But I’m not on your team. I’m not playing for the team of the Democratic Party in this context. I am a prosecutor and I’m doing this for law enforcement. I don’t think it’s appropriate to have elected officials there.” Even though, again, to them, I understand why that seemed weird because I’m an elected official, but I knew and I know that I was making decisions not in that capacity. I think part of it, quite frankly, is that a of elected officials don’t believe that someone can be in an elected position and not take all those kinds of considerations into account when making our decisions. But I knew that that’s not only what I was capable of, but how I wanted to be in this job and I did.

Preet Bharara:

If I can tell a quick story just so people understand how important a consideration this can be. So when I was US attorney, obviously I was in an appointed position and we brought a very significant case against a number of individuals in a development company who had created or was supposed to create a software program for city employees to bill their time. It was called City Time and it turned out to be a massive fraud. And we settled with the company to pay the $500 million or so overage between what the programming and the software should have cost and what it ended up costing and multiple people were prosecuted and sent to prison. There were some fugitives. And I believe it was at the moment that we were announcing the resolution with the company that we planned to do a press conference. It was a half a billion dollars.

And there was a debate about whether or not Michael Bloomberg, the sitting mayor of the City of New York who didn’t have any sway over me, not in the chain of command, in a different level of government, city government, and I was a federal prosecutor. And we had a whole debate, I don’t think I’ve told this story publicly, about whether or not Mike Bloomberg could come. And the Mike Bloomberg people were like, “He would like to come and be there to thank the prosecutors and other innocuous things.” And it was so ingrained in me as it is in you not to have an elected official at a prosecutorial announcement that we had a bit of a fight about it. Ultimately, and I think this is the only occasion … And I did many, many press conferences. The only occasion when an elected non-prosecutor was at the podium with us even briefly. And to the extent that Mike Bloomberg on behalf of the city was accepting this funding as a victim, as a putative victim of the crime, we thought that it was appropriate. And some people might think it’s funny and overwrought to be thinking about these things. I think a lot of folks would do better to think about these things a little bit more. So thanks for that.

Mimi Rocah:

Yeah, and to your question, Preet, I think I’m very used to talking about how Republicans have made a mockery … Well, I will say the Trump Republicans because I still do think there are many good Republicans who understand the difference. I mean Liz Cheney being one of them, but many others. But who have no problem and in fact have a goal of manipulating the justice system and intruding on it with their power. I’m not attributing the same motive to Democrats, but I think we have to call it out no matter where it happens. So I think it’s more important now than ever.

Preet Bharara:

I’ll be right back with Mimi Rocah after this.

You talked about the incumbency advantage and certainly that’s there, but it did strike me as you were saying that, that one of the things that’s been in the news lately is the actual defeat of a number of incumbents in San Francisco and in other places, and in fact in some cases movements to dethrone sitting DAs. Do you think that power of incumbency is as strong as it used to be?

Mimi Rocah:

I think it depends. I think it depends on what the support is for the person who’s challenging the incumbent. I mean, the circumstances you’re talking about are where you have, for example, a democratic DA and they are challenged by someone who is perceived frankly as too liberal, and then they face a very significant challenge, usually from a Republican, someone from another party as opposed to a primary. I do think primaries are becoming a little more common, but I think it has to …

I mean, had a platform already because I had been on MSNBC, I had been a federal prosecutor, I had people like you endorsing me. I think it’s very hard to do outside of the structure of the party. So if you’re somebody trying to challenge the order how the party feels it’s supposed to be. Right after I won, the head of the Westchester Democratic Party wanted to have a meeting with me, and I went and I sat down and I truly don’t remember exactly what she said. It was nothing illegal or even really inappropriate, but it made me … Again, this is my personal comfort level. Extremely uncomfortable because it seemed like as chair of the Democratic Party, she thought somehow that we were going to have a relationship while I was DA and that we were going to talk about priorities and things. And I just very quickly said, “I don’t know what you’re used to, but I’m not that kind of DA and I don’t think we really have much to talk about.” It was a very short meeting. And I’m sure it made her angry and maybe I didn’t give it enough time to play out, but again, that’s what I, knowing myself and my level of integrity and what I wanted to signal right away that I was comfortable doing.

Preet Bharara:

Do you have a view of some of your predecessors in that job who got reelected again and again?

Mimi Rocah:

Yes. I will say this. Because look, the fact that people felt comfortable coming to me in the ways that I just described or calling me up and saying, “You should open investigation into my opponent,” or texting me and telling me that they hoped … I mean, I’m talking about other elected officials. That they hoped I would give consideration to a certain defendant who was friends with an elected official. I don’t think they honestly understood how problematic that was. And so that tells me something about how at least this office was run. And I’ve spoken to people who are DAs in New York elsewhere, and I’m not sure it’s the same. And if you think about the Manhattan DA’s office, for example, I mean, no one was calling up Bob Morgenthau and saying, “Hey, could you do this on a case?” I mean, they just weren’t.

And so I think part of it is the history of who’s in that chair and what guardrails they set up early on. And so I viewed part of my job as trying to teach people, hey, this is different. This is how we do it. This is why it’s important. And I think they didn’t quite believe me. And so when I went for budget meetings or other things where I was genuinely trying to get resources we needed for the office and for my people who deserve them, there was an assumption that I had some ulterior motive, I think, that was political or that I was planning to run for something else. There was all these rumors that I was using this as a platform to run for something else, which could not have been farther from the truth. And just an inherent desire to oppose what I was trying to do because they could oppose what I was trying to do. And so things that should have been pretty run-of-the-mill, for example, with our budget where the money was already allocated to our office from the state, but we still had to go get permission from the county. Things like that, it made no sense. And we ultimately prevailed, but it was a battle that it didn’t need to be and I know that that was political.

Preet Bharara:

Did you talk to a lot of people about your decision not to run again?

Mimi Rocah:

Yes. Because I agonized.

Preet Bharara:

I remember we spoke.

Mimi Rocah:

We spoke. I mean, I spoke to you. I reached out to everyone who has ever given me good advice. I talked to my mother, I talked to my husband, I talked to my kids. I mean, I probably talked to my dog. I agonized over it because, again, I loved the job and I really care about the people in the office and I know I don’t need to explain that to you. But I felt like I came into an office where the people in the office were understandably a little skeptical of me. Who is this person? This fed prosecutor? First of all, I mean right there, you’re in a state prosecutor office.

Preet Bharara:

You’re a fed.

Mimi Rocah:

You’re a coming in as a fed. That is not necessarily a position from which to earn people’s love right away. But I do think not everyone for sure, but I think that over time … I know that over time, not just me, but me and my team won most of them over. Earned their trust, I should say. Which is exactly what I wanted to do. That we were there really trying to do the right thing, that we were fighting for them, that we had their back, that we didn’t always make the right decisions, but we were trying to, that we took their views into account, that we listened to them, that we had dialogue. All those things that, again, having a boss like you taught me.

And I think … I know. Because when I left, certainly people were telling me, but I also could see it. I could see that they understood some of the most drastic changes we made like bringing in a conviction review unit. That was not something that people were necessarily excited about, but I think they understood at the end of the day how important it was and how it taught us to be better prosecutors on the cases we were working now. So it was an agonizing decision, and I went back and forth and back and forth. But I’ll tell you the one story about how I came to this. People always say, “What’s your gut feeling? Follow your gut.” And I usually say, “I don’t know what you’re talking about. I don’t have a gut. If I had a gut feeling, I would’ve decided this a long time ago. I’m going back and forth because my brain is telling me different things.”

But I did go to a political event in October of 2023, and the reason, part of why I remember it was October 2023 is it was after October 7th and what had happened with Hamas attacking Israel. And it was a very emotional time. I felt very emotional in general, very vulnerable, quite honestly, as a Jewish woman. And I think that added to this. But when I got there and I was in a room with 400, at least, people who were all there with good reason for politics and for pumping up the Democratic Party across New York and cheering elected officials who were there. And I’m not criticizing that they were there for that, but that did not feel remotely comfortable to me. And my gut feeling truly was, I cannot do this. So it wasn’t, I don’t want to, should I think about this. It was, I am not capable right now of being the person that needs to jump into that world to run again. And I went home and I said to my husband, “I’m not running again.” And he kind of said, “Are you sure? Because you’ve changed your mind like 50 times.” And I said, “No. I’m positive.” And I never changed my mind again.

That doesn’t mean I don’t have regret ever or miss it or am sad, but I knew it was the right decision for me to continue feeling the integrity that I’ve always felt about my career and my decisions.

Preet Bharara:

Was there one person you were most nervous to tell about your decision?

Mimi Rocah:

Yes. People in the office. Particularly people who I had brought there from other positions who I knew had come to work with me, for me, and as part of my vision. The people who came to work on the conviction integrity, which we made … I mean, we did amazing things, but that work is never done. And I was concerned that the next DA would not necessarily keep them or continue it. But people cried when I told them and I teared up. It was very hard. I mean, there were definitely people who said, “Don’t worry. I’m going to move on now too.” Or, “Don’t worry. We’ll be okay.” But there were people who did not make it easy on me and that, and still is hard because I care about them and I care about the future of the office.

Preet Bharara:

People listening to this will wonder, given how tough you are, how much you’ve dealt with in the federal system and someone with your integrity and thickness of skin and experience and seasoning, might be asking themselves, well, if you found it the way you found it and didn’t want to do it a second time, what hope is there for the public to have someone who’s going to do it the right way given your experience?

Mimi Rocah:

I think first of all, that there are things if I could put into place that would have made it a different experience such that I would have been able to run again. I can’t emphasize enough, I keep coming back to the budget, and that may sound kind of-

Preet Bharara:

Budget’s important.

Mimi Rocah:

Not so important. But it is.

Preet Bharara:

No, no, no. It is important. No, it is very important.

Mimi Rocah:

It’s so important. And in Westchester, the DA’s office doesn’t have really an independent budget from the county overall. The DA’s office is in the city. And this is an important example to highlight because it tells you that the DA’s in the city, they have a whole host of other problems that I didn’t have, but they don’t have this issue, which I think is a big one. They are given essentially a pot of money by the city. Their budget is allocated to them, and then they can use it how they see fit. Not so-

Preet Bharara:

Just so we’re clear, not everyone who listens to the show is from the great city of New York. Unlike every other city in the country, even the large cities that have one district attorney, we have five. One for every borough including Manhattan, Bronx, Queens, Staten Island, et cetera. And so what you’re talking about is each of those DAs has an independent source of funding.

Mimi Rocah:

Yes. That is my understanding from talking to them and from talking to people who worked as executives there and then executives for me. They are allocated. I mean, they have to justify an overall budget, but once that budget is made, they can tweak it, they can reallocate it, they can decide to spend more money just like we’re hearing now. Different prosecutors over time are going to have different priorities given what’s happening in the world. I had to go back to our board of legislators, to our county government every time we had a change we wanted to make. So I’ll give you the starkest example. This didn’t happen with me so much, but this I think highlights what I’m talking about. Let’s say I was a DA elected from the Democratic Party, and let’s say there were several Republican officials who I wanted to investigate and I needed to put more prosecutors into our public integrity section and more investigators, et cetera.

I would have to go to them to reallocate those lines. And let’s say those Republicans were sitting on the board that oversaw my budget. What would stop them from saying, “No. We’re not doing that.”? And in my example, it would not be for good reason. That’s not just a check on my power. That’s a we don’t want you looking at us. Or someone who supports police unions and the police unions don’t like it when DAs investigate police. I mean, I saw that repeatedly. So there are a lot of reasons why if I wanted to allocate resources based on somewhere I saw a need, that I had to go back to the county government every time to get their permission. And it wasn’t just a rubber stamp. Like I said, I believe that they brought politics into the process, and that is part of what bothered me so much.

Preet Bharara:

Do you have a proposal for not just New York, but other states where this must be the funding mechanism to make it more independent?

Mimi Rocah:

Yeah. I mean, it has to be that you are allocated an annual budget and once that money is allocated to the office, you can decide how to use it within your office. I just think that has to be completely independent. I also think … And again, this is a big difference from New York City, which has the Department of Investigation, DOI, which is a whole other agency devoted to doing public integrity type investigations. We don’t have that in Westchester. They created a board of ethics, but it has none of its own investigators, not a real budget. There’s no body like DOI. So it’s all on the district attorney’s office here to not just investigate criminal conduct, but keep our eye on corruption and police it. And I think there needs to be another independent body in addition to the DA’s office to help where there might not be necessarily criminal charges or even if there is, it’s not all in one person that is then perceived as threatening.

Preet Bharara:

And by the way, all these things we’re talking about are specific to New York in terms of your experience, but I’m guessing they are issues that are faced by constituencies in most states in the country, whether it’s, as you mentioned, the incumbency issue or the political blurring issue or the funding issue or many other things. But I want to get back to something that you talked about earlier, which I think is really important, and give you a chance to flesh it out a little bit more. So as DA, you set up something called a Conviction Review Unit to investigate cases in which new evidence or facts surfaced that could call into question a prior conviction. These could be cases of actual innocence or I guess in some cases wrongful conviction. Could you talk about maybe the most important case you thought that came out of that effort and the result?

Mimi Rocah:

I think there were two actually that I have to talk about both of them. And by the way, there are other things that I am equally as proud of. I know we don’t have time to talk about-

Preet Bharara:

You love all your children. I know.

Mimi Rocah:

I love all my children. But there was first of all, an exoneration of a man, Leonard Mack, who was innocent. He had been convicted of rape in, I believe, the 1970s. And he was exonerated by DNA evidence, and not only did the DNA show that he was innocent, but we were able to find the person who had actually committed this crime and got a confession from him, an admission. The statute of limitations had passed, so we couldn’t charge that person with the actual crime of rape, but having the admission and we charged him with a failure to register as a sexual offender so he did have some consequences. And when I say we, by the way, I’m talking about the investigators who worked on this case who were unbelievable. And the moment of bringing Mr. Mack to court and meeting him and just experiencing this with him … I mean, he’s an older man now with a wife and children.

He talked about how important it was to him. He was crying. He said he felt like he was finally free. That even though he had been out of prison for a long time because he had served over seven years in prison. But even though he had been out of prison, he did not feel truly free until this happened. So that was unbelievably rewarding. And the second one is a case of a man named Selwyn Days, who was tried five times by the Westchester DA’s office for a 1996 double murder. The trial went through obviously different stages. There was first a hung jury, then there was a conviction that was overturned because of a failure to investigate an alibi. Then there was another hung jury. Then there was another conviction that was overturned based on failure to admit expert testimony on false confessions. And then finally, he was acquitted in 2017. But he was never really free in the same way that I just described about Mr. Mack, because even though he was acquitted, there was never anybody else charged for having committed this horrible, horrible murder.

And our conviction review unit received a request to look at this again and look at some specific leads, which our investigator, again, an amazing investigator, former NYPD detective, and he followed it. And I’ll say this because it’s actually an ongoing investigation still with now the Bronx DA’s office because it was referred there because of a conflict motion that we made saying that our office couldn’t really fairly independently investigate this now. But we did put out a statement saying that we had found the people we believed did it and that they were completely disconnected from Mr. Days. That was a really big deal. I think there are all sorts of lessons to be taken from it about tunnel vision and all the things we talk about for prosecutors. You could do a case study and maybe someday we will. But again, I felt very proud that the same power that can be used to prosecute people who deserve to be prosecuted can also be used to free, essentially, or exonerate people from the burden of prosecution when they don’t deserve it.

Preet Bharara:

Yeah. I’ve always said you must run just as fast to exonerate the innocent as you do to convict the guilty. Policy question. Do you think every large size DA’s office should have something like the Conviction Review Unit?

Mimi Rocah:

Absolutely. And not only because of what we’re talking about, about the individual stories and cases and impact on those individuals, but because it taught us so much about things in the office that we needed to fix or work on, some of which had over time fixed anyway, but some of which had not like making sure that there was a single person who … This doesn’t apply to these cases, but other cases we reviewed. A single person who was responsible when you did narcotics sweeps for knowing everything with all of the CIs and having the big picture, not just individual cases, because sometimes you don’t really know what you know until you have the big picture. Those kinds of things are important to us.

Preet Bharara:

CIs meaning confidential informants.

Mimi Rocah:

Yes. But I think it helps create procedures and tweak things that make the cases you’re doing now better so that you never need conviction integrity unit down the road.

Preet Bharara:

One more policy question. You were talking earlier about the nature of the problem when local prosecutors are elected. Do you have a view about that with respect to elected judges? I don’t know if I should reveal a voting habit of mine because it’s controversial within my family perhaps. I don’t vote for judges on the slate because I think it’s crazy, much more so even than what you’re describing about DAs, that literally judges are supposed to be independent in every way, shape, or form are allowed … It’s limited depending on the state, but are permitted to campaign and raise money and are voted upon. And again, the appointment system is not necessarily the perfect system either, but the election of judges, which is by the way a cause that former Supreme Court Justice Sandra Day O’Connor championed to try to have a different system for judge. Do you have a view on that?

Mimi Rocah:

Yeah. I mean it won’t surprise you for me to say that I’ve the same view, which is that the electoral and political system should not be how we pick the people who decide these incredibly important decisions every day about justice and civil cases too, or domestic violence. And in particular, they have to raise money to run campaigns. And if you have to raise money, then you have to worry about certain people and what they think of your decisions. And I’d like to think that I know I could be independent of it. Again because of my background and maybe to a fault. But I don’t know that everybody can, and it’s somewhat understandable. They’re human and we put them in this position.

Preet Bharara:

And there’s also a perception. Look, there are DAs … And everyone has a different rule. I don’t remember what your rule was by definition and by happenstance, someone running a lawyer, a well-known lawyer with a lot of experience either on the defense side of the prosecution side, running for DA in any jurisdiction in the country, likely knows a lot of people who are able to contribute and have an incentive to contribute both in good faith and for potentially other transactional reasons. Those people are often fellow lawyers and specifically criminal defense lawyers. Or they work at firms whose partners are criminal defense lawyers with matters before the office. And whether or not you’re screened from it or you can take any vow of independence and integrity, I think increasingly, people who are running for that kind of office realize that it’s not the greatest look in the world, but it’s also of great detriment. I mean, some of the people who are running for these positions, their chief fundraising source are other members of the bar. Do you have a view of that?

Mimi Rocah:

Well, I mean, I made a pledge in my campaign, which I stuck to, to not take any contributions or endorsements from police unions. Not that they necessarily would’ve given me any, but that was a very clear and obvious one to me. But then at the same time, to not take donations from anyone who had a case or matter pending before the office. And if someone who did contribute later had a case, I either returned it or put it in escrow. I think usually returned it. And so I think that is a balance of both sides of the coin and I think is hugely important. I mean, I was lucky enough to be able to do that. It’s not as easy for everyone. I mean, a lot of my lawyer friends who I know practice in the city, not in Westchester. So it was easier to draw that line. But I do think that’s hugely important.

Preet Bharara:

Mimi Rocah, final question, the most obvious question that I would be remiss if I didn’t ask. So what’s next for you?

Mimi Rocah:

It is a very good question, and I don’t have a great answer. I’ve tried making things up to say-

Preet Bharara:

I would always answer that question at various inflection points of my career. I’m like, “Well, I have dinner this evening.”

Mimi Rocah:

Yeah, exactly.

Preet Bharara:

That’s what’s next. But I’m expecting a more substantive answer.

Mimi Rocah:

The one thing I can say now, given what’s going on in the world, is that I will continue to try to advocate in different ways for a principled justice system that is not intertwined with anyone’s politics, no matter whose that is. And right now, that very much means speaking out and talking about and working on what the Trump Department of Justice, which I view as corrupt, is doing to the justice system that we grew up in and love so much.

Preet Bharara:

We’ll be spending a lot of time talking about issues like that and that arise from that on the podcast. Once again, my friend, Mimi Rocah, thank you for your service. Thanks for being on the show.

Mimi Rocah:

Thank you, Preet.

Preet Bharara:

Stay tuned. After the break, I’ll talk about the issue of patronage at the DOJ.

So folks, as you know, and as I talk about, there is a lot going on at the Justice Department of late. In Washington, but also in the many US attorney’s offices around the country, as in DC and of course the Southern District of New York, there’s a reason to worry that partisanship may soon matter more than principle, that loyalty to Trump matters more than loyalty to the Constitution. Prosecutors are resigning in protest or being fired and/or being investigated if they touched investigations and prosecutions that Trump didn’t like. And there is a risk that the ranks of justice could be hollowed out and replaced with functional partisans, and that could take us back to a less honorable and a less just time. So let me tell you a story. Once upon a time, the job of a federal prosecutor was in fact a patronage job, meaning if you were a member of the incumbent party, you would get these prestigious and powerful positions, and part of your compensation might’ve even come from law enforcement seizures of cash and contraband.

But in 1906, a man by the name of Henry Stimson became the US attorney at the Southern District of New York. Now, you may know that name because that wasn’t the end of his career. He went on to serve as the Secretary of State under President Hoover and then Secretary of War under FDR and President Truman. Part of his later legacy is that he oversaw the Manhattan Project, which constructed the first atomic bombs, and he was the highest ranking civilian official to advise Truman on dropping those bombs on Hiroshima and Nagasaki. He was also responsible for securing Roosevelt’s approval for Japanese internment during World War II, at which he succeeded. So a decidedly mixed legacy, but a very consequential one. By the way, if you’ve ever been to Glacier National Park in Montana, Mount Stimson is named after him. But as I said, in 1906, Stimson had just been appointed to lead the Southern District by President Theodore Roosevelt, and he decided do something transformational.

He decided to change the ranks of assistant US attorneys in the office from patronage jobs to positions of merit. He decided he would pay them less than those roles had paid before, so he would be able to hire more people. He prioritized the hiring of young, idealistic and talented lawyers. And with this changed practice, he hired some of the best young lawyers of the generation. People like Felix Frankfurter, Thomas Thatcher, and Henry Wise. Stimson assembled a competent and justice-oriented team of lawyers who became known for tackling complex cases, especially in the realms of corporate corruption. A legacy that SDNY still carries proudly. It was arguably these changes that gave SDNY the top dog status it has today. His merit-based approach has wrought greater justice for a greater number of people, and that tradition has been followed ever since, and we should all worry if that tradition is in jeopardy.

Now, I should clarify that I’m not saying that merit-based hiring is in fact a perfect hiring practice. I’ve spoken a lot on this show about meritocracy, especially with people like Michael Sandel who study the issue. Credentials, be that an Ivy League law school or a prestigious clerkship, they’re not everything, especially in the striving for justice. Smarts are important, but judgment and integrity even more so and political affiliation should count not at all. During my time as U.S. Attorney, when I was tasked with hiring junior prosecutors, I thought about this all the time about how to measure and test for character traits that go beyond a sparkling resume. I would ask, for example, at the end of the interview process, and by the time a candidate got to me, he or she had already gone through a gauntlet of interviews and reference checks and the like. And I would ask applicants who were seeking to join the criminal division of the office a very simple question.

And the question was, if you are hired and you do your job and by definition you do your job properly, how will you feel about being the proximate cause of many, many people being separated from their liberty potentially for long periods of time? How will you feel about that? And every once in a while, somebody would answer the question thinking that it was the correct answer or the answer that I wanted to hear, and would very quickly say, “Well, I have no problem with that. People shouldn’t commit crime.” Or something along those lines. Making it seem like they had no compunction at all about sending people to prison for long periods of time. They’re a little too quick, a little too joyful about the prospect. It didn’t happen often, but it happened from time to time. And you know what we did? We didn’t hire those people.

We didn’t hire them. No matter what their credentials were, no matter how glowing and stirring their recommendations were. Because people who seem too eager to send folks to prison, I and we thought didn’t have the right temperament and character and outlook to have as much power as young prosecutors are given in that office and in other prosecutors offices around the country. But going back to Henry Stimson, my point here in talking about his hiring changes specifically is that there was a time when a lot of these offices were made up of people who were less than qualified to do the job, who were there simply because they had political patrons who wanted them there. And so I fear, and I hate to say this, but I fear we are witnessing the ghosts of patronage past creep back. We are in a moment that threatens not only SDNY’s integrity, but that of the entire Department of Justice.

My fear is that what is being sought is not actually the de-weaponization of the U.S. Attorney’s offices or the de-weaponization of DOJ, but rather a return to the backroom patronage appointments that didn’t fight corruption, but instead fueled it. What we risk in abandoning Stimson’s once revolutionary idea is a return to the bad old days when connections mattered more than character. Let’s not go back to those days. I’ll leave you with my favorite Stimson quote, which I repeated on a regular basis when I was in office. Many decades after serving as US attorney, Henry Stimson described the challenge for people who might wish to make a difference in the world. And Stimson said this. “Let them have hope and virtue and let them believe in mankind and its future. For there is good as well as evil. And the man who tries to work for the good, believing in its eventual victory, while he may suffer setback and even disaster, will never know defeat. The only deadly sin I know is cynicism.” I feel those words are more relevant today than ever before.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Mimi Rocah. And special thanks to senior editor Lyssa Soep. 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 at @PreetBharara with the hashtag #AskPreet. You can also now reach me on BlueSky, or you can call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The editorial producers are Noa Azulai and Jake Kaplan. The associate producer is Claudia Hernández. And the CAFE team is Matthew Billy, Nat Weiner and Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.