Preet Bharara:

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

Martha Minow:

I think that justice is a direction rather than a destination. I don’t think you achieve it. I think you’re constantly striving for it.

Preet Bharara:

That’s Martha Minow. She’s the former dean of Harvard Law School and a distinguished legal scholar, an expert in constitutional law, human rights and legal advocacy. Minow is famously the professor who then-Senator Obama described in his 2008 presidential campaign as having changed his life. The former dean joined me to discuss some of the weighty philosophical questions that inform our criminal justice system, including notions of accountability and forgiveness. We discussed a persistent question in my life and work, would you rather have good laws or good people? Then I’ll answer a question about how U.S. attorneys are appointed and unpack the situation unfolding in New Jersey’s U.S. attorney’s office. That’s coming up, stay tuned.

Should forgiveness be incorporated into our legal system? Scholar and former dean of Harvard Law School, Martha Minow, joins me this week. Martha Minow, welcome to the show. It’s so great to have you.

Martha Minow:

Delight to be here.

Preet Bharara:

So as you were reminding me, although I did not need reminding, before we hit the record button, I wanted to thank you for your tremendous hospitality. I can’t believe it’s been 11 years, but 11 years ago I was asked to speak at the class day exercise, which is I guess the equivalent of the commencement exercise at Harvard Law School. And you were a great host and you were dean of the Harvard Law School at the time, and I don’t know if you remember that I was not the only speaker. And I spent the first few minutes of my talk in semi-real, semi-mock indignation that the folks at the law school had decided to compensate for my lack of predicted humor by having an actual funny person speak also in the form of Mindy Kaling. So I felt a little bit intimidated that day.

Martha Minow:

I remember so distinctly, and I was having a wrestling match with the students who wanted to have a comedian and I said, we want a lawyer. We want a real lawyer. And then you stood up and I believe you were at least as funny, if not funnier than Mindy Kaling.

Preet Bharara:

Well, if I could pay you money, I would pay you money for having said that. I really appreciate it. That was a lot of fun.

Martha Minow:

You were inspiring. It was great.

Preet Bharara:

It’s actually the speech that I’ve given that I think best encapsulates how I think about being a lawyer and going to law school and working hard. I sometimes make people listen to it if they’re going to work for me. So I appreciate the opportunity.

Martha Minow:

It’s worth a listen. I do a shout out for it. It’s inspiring.

Preet Bharara:

Thank you. So I’m going to return the favor by asking you at the beginning of this conversation to answer a very simple question, and you can be quite brief given the nature of the question. You ready? What is your definition of justice?

Martha Minow:

Oh, you think that could be answered briefly?

Preet Bharara:

No, I was kidding. Well, because you have interesting ideas that not everyone may appreciate or understand or be familiar with, so I want to begin with something.

Martha Minow:

I appreciate it.

Preet Bharara:

And I’ll narrow it down. In the criminal justice system, what do you think is justice? If you prefer to answer first by saying how we teach, what the interests of justice require, how we think about punishment, how we think about accountability, and then we can talk about some of your interesting ideas about it, I think that would be great.

Martha Minow:

Great. Well, thanks for the question. I think that justice is a direction rather than a destination. I don’t think you achieve it. I think you’re constantly striving for it. I think that at least in the systems that I know best, it’s a combination of a right to be heard, for any individuals who are affected by the operations of the law, it is a pursuit of truth. And in the criminal system, I think it is also accountability and finding a match between events and consequences.

Preet Bharara:

Is justice done by laws and rules or by people?

Martha Minow:

Justice is done by people trying to realize the laws.

Preet Bharara:

I’m not a distinguished professor like you, but I do teach at NYU Law School and I ask a sort of unfair question, but I’ll put it to you anyway. And that is, in the hypothetical I ask, if you could have a perfect system of laws, perfectly crafted, constitution, set of regulations, statutes and everything else, but semi-corrupt, or not even corrupt, but untalented practitioners and judges, quite imperfect practitioners and judges, or on the other hand have a very imperfect constitution set of statutes and laws but have practitioners and judges of very, very high integrity and acumen and talent and good faith, which would be the more just system?

Martha Minow:

I wish those were the choices. I fear that our choice is the worst alternative of both. And I do close my constitutional law class the last two years with a comment about Santa Claus, which is a funny thing coming from a Jewish person. But I say to the students, I hate to tell you there isn’t a Santa Claus. But on the other hand, there is, there’s an idea of a Santa Claus that changes the behavior of people who get dressed up in red suits and are generous for at least briefly. And that’s what law is. And there’s an idea and an ideal, and unless there are people who believe it doesn’t matter how beautiful the rules are that are written down. On the other hand, you could have fantastic people, if the rules are terrible, that also can produce very, very unfair, unjust results.

Preet Bharara:

But would you rather have one or two? If you had to pick.

Martha Minow:

If I had to pick, I’d pick the people.

Preet Bharara:

Interesting, right? I don’t think people would predict that. That’s my answer after having practiced for a long time, because as people like to say, and as I have said, and I’m sure you have said the law is not automatically executing. It’s not self-executing.

Martha Minow:

Absolutely.

Preet Bharara:

And good faith is something that’s in fairly short supply, I think.

Martha Minow:

I spend a lot of time these days teaching about AI and there’s a dream of AI substituting for all kinds of roles of people, including in the justice system, the legal system. It would be terrible. And to the extent that we already are using algorithms to decide who gets bail or to try to nudge judges when it comes to fact-finding or sentencing, it’s a prediction machine. It’s not responding to the actual situation of the people before you.

Preet Bharara:

Well, we’re going to talk about AI since you brought it up in a minute. But sort of along these same lines, if you care to comment on how people view the justice system and the presence or absence of justice, my conclusion has been, and maybe it’s unfair, but has been that increasingly in recent times, particularly in high-profile cases and investigations and prosecutions, that people are much more outcome-determinative than process-reliant. And as you say, and as I have said, justice prevails when the process is fair and the people who are interpreting or responsible for the process are fair-minded. But increasingly I feel like if you support a particular side or the other, justice is only in the outcome that you have preordained in your head because of the tribe you belong to. Is that fair or not?

Martha Minow:

I think it’s not only fair, I think it’s one of the symptoms of our polarized times in particular. But very specifically about law, I think that the reported surveys about perceived legitimacy of the legal system, at least in the United States, is lower and lower and lower over the last two decades. And I think it is entirely related to perceptions about outcomes in high-profile cases, just what you say, which is wrong in at least three respects. One, it lacks the attention to the process which you’ve indicated, I certainly agree, is essential. Two, most cases are not high profile. It is a misunderstanding of the system to focus on them. They are atypical in almost every way. And thirdly, I think that the experience of justice is this interesting, challenging combination of these people right now, here, and also looking over time and looking across the caseload over time.

Preet Bharara:

So it’s interesting you talk about the distorting effect of high profile cases, because in recent years most of what the public consumes about the criminal justice system and the Justice Department in particular the federal system, are these cases relating to Donald Trump. In recent days and weeks, the case relating to Jeffrey Epstein, and there’s a connection between those two. And what I tell people is when they ask about the Justice Department, the massive work certainly in the DA’s offices, but the massive work in the Justice Department are not high profile. They’re often garden variety, but sometimes cutting edge cases involving cyber crime and gangs and organized crime and financial fraud and all of that. And all of that sort of grinds along fairly and appropriately and equitably generally speaking, and that people are getting a distorted view of how the Justice Department operates by focusing on the Trump cases or the Hillary Clinton investigation, with the Jeffrey Epstein shenanigans that are going on. Is that a satisfactory answer to people given that their diet of information comes from those high profile cases?

Martha Minow:

Well, your clause there at the end is the key, which is where they’re getting their information? And we have a news industry that’s collapsed. We have a news industry that no longer has a regular beat, following the Manhattan courts, the courts in the Bronx, nobody is in there reporting on what’s happening. So that’s the state and local level. For the federal, you’d think there’d be a more steady ability of national outlets to actually cover.

But this may be something about human psychology. When you have media that is sold by the click, which it is, what matters is the attention and what will actually turn heads, and what will produce outrage and that’s high profile and that’s extreme rather than let’s look at the steady progress over time.

Preet Bharara:

Is there something that we can do? You’re a professor of law at Harvard Law School, it’s a rarefied atmosphere, is there something that we can do, those of us who have public platforms like you and me and others, to sort of make people understand better how the justice system operates in less high profile cases? Or is that asking too much because there’s less interest in those kinds of cases?

Martha Minow:

I think it is actually an obligation for those of us who know something about the system and don’t have a risk of compromising the system by speaking publicly to do so and to educate. I mean, it’s one of the reasons that I teach. But I also do look for opportunities like this one to talk to people beyond the classroom, and I’m so grateful to you for the way that you do that.

Judges don’t usually speak and frankly when they do outside the courtroom, it’s not usually a good idea. And so it can’t be their role. It can’t be the role of the prosecutors or the defense attorneys in a case or in civil litigation. Or if it is, it will always be tainted by the assumption that it’s part of their advocacy, which it may well be.

So the educational function is going to either come from reporters who may or may not understand what’s going on, or who may or may not be interested in truth and may be of course most compelled by clicks, or it’s going to come from people who have expertise but are not involved in the cases. I know you’ve had Rachel Barkow on and she is one of the people who does I think brilliant work looking across the system over time. I think it’s an obligation on all of our parts who know something about the system to be able to talk in compelling ways about not just individual cases, but the process and what happens over time.

Preet Bharara:

So I’m going to take this opportunity since I have such a noted scholar and thinker to ask some other basic questions that I’ve been grappling with and others may have been. So this birthright citizenship case that was not really a birthright citizenship case, it was about national injunctions, and maybe I’m phrasing the question wrong, but I keep thinking the operative question for all of us and for concerned citizens about what we learned to the extent we learned anything in civics, was we have three equal branches of government. We have separation of powers and we have checks and balances. And whatever that means we can talk about in a moment, but that’s what we learned. And I think that thoughtful citizens believe that that kind of means when one branch gets out of line, there are mechanisms, checks, balances to bring that overreaching branch into line with a check.

And that’s I think a lot of people’s basic understanding. It’s sort of my basic understanding. And then you have justice Amy Coney Barrett writing for the majority, and she says, and listeners to the podcast will know that I’m obsessed with this point, she says, which I believe is the correct statement of the law, that the judiciary does not have any general oversight role or job when it comes to the executive branch. And then she also says some version of, the solution for an imperial presidency or an imperial executive is not an imperial judiciary, which also seems to be a correct statement of policy, law, theory, constitutional interpretation. What is an ordinary, thoughtful citizen to make of this idea that it seems to be the court is saying, well, if you have an out of control, outlandish overreaching executive in the form of a president, sorry, not our problem?

Martha Minow:

To the extent that there is a system, it was designed in the 18th century. The metaphor was a clock and a machine that would go of itself, was how commentators talked about it, with powers given to these different branches and also to the federal and state government and to the people who could vote, which at the time was a limited number, and all of that was supposed to provide the checks and balances. It wasn’t a two person game. And that’s how I read Justice Barrett’s comment.

The problem with her statement is that the Supreme Court has built itself to be supreme. And because it is keeping for itself, not even for the district court judges or the appellate judges, anybody else, it’s only the nine who can have the final word on issue after issue after issue, we do have an imperial court. And its inaction is now as significant as its action, its use of the so-called shadow docket to say, oh, well we’re not deciding this on the merits. We’re certainly not having an actual argument and an actual opinion, but we’re issuing a stay or we’re lifting a stay. And you change the facts on the ground, you change reality. Or the refusal to take a case. Or in the CASA case that you raised, the refusal to hear the merits and to only hear one procedural technical question, which by the way has been kicking around the system for decades and should have been heard long ago.

Big problem is that we have districts in this country where there’s only one district court judge and the manipulation of the forum shopping, just notorious. So there are problems with nationwide injunctions, one person being able to halt an action of the federal government, but there are also problems with the Supreme Court saying nobody but they can interpret the Constitution. There’s a kind of abdication of responsibility, certainly that’s true of the Congress. We can’t leave them out of it.

Preet Bharara:

Do you want to do a minute on the complete abdication of their equal powers in The Congress?

Martha Minow:

Yes. They have profound powers over both the executive and over the judiciary, and they’re not exercising any of them. Not only they’re not exercising, they’re capitulating. So I should disclose, I’m the chair of the Board of public media. In the Massachusetts area, that’s the GBH, which just suffered along with other public stations, the rescission of over 1.6 billion. Rescission. This is to say that Congress has now capitulated to the President on the core power of The Congress, which is to appropriate money when the President and Doge and who knows who has said, well, we just want to slash and cut and burn even things that the Congress appropriated, said it wants to spend. And Congress says, okay, go ahead.

Preet Bharara:

Yeah. Can you explain that? I mean, the founders obviously couldn’t anticipate a lot of things. They couldn’t anticipate the evolution and outsize lethality of weapons and firearms that comes up in the Second Amendment. They couldn’t have anticipated television and radio and cinema and all those things that implicate the First Amendment, and so on and so on and so on. But I think they had a pretty decent handle on individual psychology and self-interest and arrogance and greed and aspiration to power and all of those things. So how did they get it so wrong that 200 years hence, or 250 years hence, individually statewide elected senators in the upper chamber in particular would cede power to an executive? How’d that happen?

Martha Minow:

Within 30 years of the adoption of the constitution, those framers, those founding fathers who were still around, were actually saying, well, how did we go so wrong? Because they did not plan on political parties and they saw the system being taken over by parties. Well, if they didn’t think about parties, they certainly didn’t think about partisan gerrymandering or other kinds of partisanship on steroids.

The framers were smart enough to see that no democracy had lasted long, and they were smart enough to know that tyranny was the central problem. That’s why they tried to divide powers and create checks and balances. They did believe that ambition would check ambition, and I think they just could not have anticipated that the combination of charismatic personality, immediate communications that can travel through the world, and changing the roadblocks to speedy decision-making would produce what we have now. And when I say roadblocks, I’m not wanting to go back to a time when senators were elected indirectly through the state legislatures, but that was a different idea. That was an idea of taming local passions, which we don’t have anymore.

Preet Bharara:

This sounds like a bizarre, let me ask the question and then I’ll put out the maybe bizarre proposal. Does government work better, at least in regards to appropriately and rationally and reasonably restraining an executive, a president, when at least one house of the Congress is in the opposing party’s hands?

Martha Minow:

I think that it’s best to understand when the system works. It’s like a three-legged race where two people have-

Preet Bharara:

Speedy, very speedy.

Martha Minow:

Yeah, it’s not going to be speedy. It’s going to be awkward and it’s going to require coordination and communication, and you’re going to fall down a lot, but there are good reasons for not moving too quickly. And that’s why the speed issue is one that I just want to elevate and say that’s a problem right now.

I also do think that there are ways in which the egalitarian nature of voting for example right now, which is of course belied by voter suppression, was not anticipated. And if we were serious about it, we’d have a different kind of system. We right now have such disproportionate representation with two senators from each state, even if they’re teeny-tiny, two senators from California, two senators from Rhode Island, so that you have right now a president who was elected and a majority of the Supreme Court appointed and confirmed by senators who represent a minority of the population. That was not the system that was anticipated.

Preet Bharara:

People listening might be asking themselves, Preet, you haven’t asked about any current event, any current case, and I’m glad that we haven’t because I think we get caught up in particular issues of the day. And it’s sometimes worthwhile to take a step back and think about what the principles are and what the landscape is and what the founders intended and what the constitution actually says and what fairness actually requires.

But now I’m going to ask you just not to comment on the ins and outs of any particular case, so for example, given what we said about civic education and tribalism and everything else, if you’re a thoughtful, open-minded citizen, and maybe I don’t know how many of those we have, hopefully all of our audience is that way, but if you are such a person and you’re hearing this news about Jeffrey Epstein, and we’re recording this on Monday, July 28th, and who knows what will happen between now and when people hear this, and you’re hearing the Deputy Attorney General is going to meet, and you’re hearing that somebody was given favoritism and there’s a dangling of a pardon, and were all the right people held accountable, and is there a different justice for different people if they have money, and the conspiracy.

All of that, from your perspective, taking a step back, could you give any guidance to a thoughtful citizen as to how to take in this information that for me, I’m a lawyer and I’m a former prosecutor and it’s confusing and bewildering to me. How should a citizen make sense of all this?

Martha Minow:

Well, I do believe that more people are open-minded and want to be viewed as fair than not. But also most people are busy and are not newsaholics and they’re not chasing down a contrary version of what happened. So the main point that I would give to people is look for trusted, trustworthy news. Don’t just look at your social media. Try to find at least somebody who’s giving a longer view, maybe a contrary view.

I do worry a great deal that we have two systems of law in this country, one for people who have resources and one for people who don’t. And you know because you lived it, the criminal system is largely plea bargains and the numbers of trials are tiny. So the picture people have of a system with trials, that’s not what most people experience. And then who’s able to negotiate a kind of plea deal that Jeffrey Epstein secured?

Preet Bharara:

Very few.

Martha Minow:

Very, very, very few. That is a tiny handful. So that’s the bigger issue that I wish more people would spend time paying attention to.

Preet Bharara:

I’ll be right back with Martha Minow after this.

So one of the themes of your work, and I want to make sure we have plenty of time to talk about it, because it’s not how prosecutors think about things, it’s not sort of accounted for in judicial opinions, is the role of forgiveness in criminal cases. Before people start saying, well, what’s Martha Minow talking about? You write for example, that I think some version of when people first hear you talk about forgiveness, that’s ridiculous. It’s about retribution and it’s about incapacitation and it’s about rehabilitation, and forgiveness has no role in our law. You say, well, there’s something called the bankruptcy law, which is a forgiveness of debt, which is a little bit different. And there’s a pardon power which we can embrace or criticize or do both as I have.

Martha Minow:

And there’s the prosecutor’s ability to decide to prosecute or not.

Preet Bharara:

Or walk away. Or walk away, yeah. Look, there’s also jury nullification, which I guess is a form of that depending on the circumstances. In a nutshell, why do you write about it and what do you mean by it?

Martha Minow:

Ultimately, although I spend my life, as you do, thinking about law, law is supposed to serve human beings. Human beings, we need to be able to get along with one another. And the nature of human society is that we’re going to have conflicts. And law is the last resort, it’s the ultimate, and we need to develop capacities to get along with one another. And forgiveness, it’s not by accident, is a capacity that is elevated, celebrated by every religion, every philosophy through human experience. It’s interesting that people who study large apes actually describe in great detail the forgiveness rituals that they engage in. If you’re going to actually get along with a social species, you need something like this.

The formal systems that we’ve developed that we call justice systems, try to have rules that apply across the board, not just about this circumstance. And yes, either have retribution or some kind of deterrence or incapacitation. But it’s fascinating to me that even in this formal system, we have made sure that there are places to bring in this interpersonal capacity.

Now, what is forgiveness? Forgiveness in my view is letting go of otherwise warranted responses of punishment. And retribution is in some sense the window onto justice that you want some kind of recompense, some kind of response when you’ve been wronged. That’s a good thing. I like that. That means that there’s a sense of yes, things are wrong, there’s right and wrong. So I’m not at all for extinguishing that, but we all know that that instinct can get out of hand, it can escalate, it can become civil war, it can become feuds that go on forever, and that is not a way to live together.

So I think it’s both important to develop systems outside the formal ways for people interpersonally and yes, alternative systems where people can actually learn to let go of justified resentments and grievances. But it’s not, I think, wrong to find places inside the formal system. What I’m stuck, really can’t get over it is that we don’t talk about it in law school. We don’t teach people, how, when-

Preet Bharara:

Well, you do.

Martha Minow:

I do, I do.

Preet Bharara:

You were the gene, so your words double I think.

Martha Minow:

Well, yeah, I hope someone listens, but I don’t know. I just don’t think we have a way to deal systematically. So when should the discretion to charge be exercised? When should the jury actually disregard the instructions? When should a pardon be given? In other countries, the pardon power is not given to one person. There is a check and balance on the pardon power. We don’t do that, but I’m a fan of having pardons and it’s a kind of check and balance on the formal system.

Preet Bharara:

I guess the question that arises is, when we talk about forgiveness, are we talking about the system having an internal process or an escape valve through which forgiveness can happen, even in cases of substantial criminal conduct where harm was visited upon victims? Or as often people think about it, is it the prerogative of and the privilege of the victim for purposes of their growth and recovery? Not so much for the perpetrator, but psychologically and as a human matter, and I think religions teach this. I’ve learned a little bit more about forgiveness. I’ve not been a victim of a crime recently, but it helps me go on with my life and the embers of hatred that can reside inside you and chew you up and all of that. It’s forgiveness is the opposite of hatred, revenge, retribution and everything else.

Is that what we’re talking about? Are we talking about something that is actually within the law or something that is outside the law?

Martha Minow:

So I’m a middle child, so it’s both. And what I can say and leave it to you, put your finger on it, yeah, I think forgiveness is more about the one who’s victimized than the one who’s done wrong. Nelson Mandela put it so powerfully that hanging onto resentments is like getting a poison and drinking it with the hope that it’ll somehow harm your enemy. Carrying around the burden of resentment, it’s one of the biggest sources of stress, anxiety, mental illness.

So it is striking to me when I first started working on this subject now 30 some years ago, Harvard has pretty good libraries, but the only library that had any resources on forgiveness was the divinity school. If you went today, forgiveness is big time at the medical school, public health school, in the political science field. People are really exploring it because it is a matter of health and peace and the development of alternatives like restorative justice.

I do think that the way to answer why it’s both is that forgiveness can be both an alternative to the formal system. And you can have people who’ve been victimized say, I personally will forgive, but the system should go on because I don’t have standing. I don’t have the privilege to be able to let go of what is the right response for society if this person is a danger to other people besides me. So that’s a perfectly plausible position. It’s a supplement then to the system. But I also think it’s a corrective inside the system and it should be a corrective inside the system.

Preet Bharara:

How about the argument that, and I’m not a scholar of any of this, that the opposite of forgiveness is revenge, vengeance. And both of those things are sort of outside the system and should remain outside the system because they’re not susceptible to rules, principles, they’re caught up in emotion and passion, both of them, one for the good you might say, and the other not, that they’re a little bit of, in different ways, an idea of individuals outside the system taking the law into their own hands, whether it’s forgiving and causing that forgiveness to result in some clemency or vengeance and causing accountability to be taken away from officers too. Is that a silly parallel?

Martha Minow:

Not at all. If I’m right in saying that vengeance has as its core a sense of being wronged, and that’s the kernel of the desire for justice, that’s a good thing. What law does is it tames what could grow out of control in terms of the emotional dimensions of that. And I do think there’s something comparable on the forgiveness side, that is if forgiveness is a way to allow me to live with people who I feel have done terrible wrongs. I don’t want to replace our legal system with that, but I think that it’s the kernel of an idea that can inform and improve our legal system.

Preet Bharara:

The way people think about victims and the impact that victims have on actual proceedings is interesting and not one that I think lay people, including young and beginning law students, they don’t think about it this way. And the way I ask it in my class is in any criminal investigation prosecution trial, who is arguably the most biased party, right? Not a bad thing, it just happens to be true, probably the victim. And yet the victims don’t decide what witnesses to call the victims don’t decide what charges to bring, the victims don’t decide the sentencing. In part because sometimes there’s multiple victims and some victims may be of the mind of vengeance and some victims may be of the mind of forgiveness.

Given your writing and research, bringing in the idea of actually having the law recognize forgiveness, one way it seems to me that that could happen plausibly, is that in certain situations, judges should or are required to take into account more than in other situations the wishes of the victim. So that in a death penalty case, if there the family of the murder victim in good faith pleads for life rather than the death penalty, should that carry weight more so than otherwise? Does this forgiveness idea get into that at all?

Martha Minow:

I worry about elevating victims inside the formal system, for reasons that you say and other reasons. I worry that to elevate the victim is to ignore that there are others who are affected, maybe not in this immediate instance, but in instances like it. The law has an educator function, it has a deterrent function.

I also worry that, you take victim impact statements, which some systems have allowed, where the eloquence of a particular victim can be incredibly moving, but that’s not randomly distributed. Who has access to those tools of eloquence or can find someone who can write that story and can appeal to the biases of the decision maker about that kind of loss as opposed to another kind of loss? So I’m not a fan of elevating the victims beyond, they have an important role to play.

But in the 18th century, in the 19th century, we in this country and in England had largely private systems. Victims would have to pay police and prosecutors and jailers, or in fact, those who were incarcerated had to pay their jailers if they wanted to eat. That’s not a good system. I don’t like that system at all. I think it’s much better to say-

Preet Bharara:

I’m with you.

Martha Minow:

… this is a public function, this serves the society and it’s not up to those who are most directly. And it’s not just the financial side, it’s also the operation side.

At the same time, I do think it’s not by accident that the International Criminal Court includes this phrase “in the interest of justice” as a modifier of the power of the prosecutor and a modifier indeed of the obligation of the court itself, that sometimes in the interest of justice, pursuing the prosecution, pursuing the fullest extent of the law is not successful. Now, the International Criminal Court is an unusual court, it’s really coming out of civil wars and mass violence, but it’s precisely in those contexts that we see what happens when vengeance gets out of hand. You have one generation, its sense of righteousness, it’s translated into the oppression and the genocide of the next. So having a system that can tame those desires is critical precisely to avoid the escalations that can destroy whole civilizations.

Preet Bharara:

My apparent and stated skepticism aside of this idea of forgiveness, you’ve written many books very highly. I wrote one book and a children’s book, but one book for grownups called Doing Justice. And I tell a lot of stories in that book about cases I oversaw, cases that I observed, decisions that had to be made, cases that weren’t brought, cases that were brought, cases where we got overturned, how to deal with witnesses, how to deal with punishment, all sorts of questions that I thought were good for people to think about and ponder, and then I pondered over. But I ended the book with a chapter, it’s rare that we give homework to a guest, but I wanted you to see it, short chapter, which I think is entitled Beyond Justice, sort of acknowledging that some of these ideas about redemption, mercy, forgiveness are really important. And they belonged in my book, they belong in any discussion and treatment of justice.

But something sort of apart from it, at least for now, because as you’ve said multiple times, it’s a kernel of an idea, not a fully thought out doctrine. And the story that I tell at the end is one of Rais Bhuiyan, which has always affected me. He was a man who in the days after 9/11, he was one of the many victims of anti-Arab violence. He happened to be from Bangladesh, he was not Arab, and he was shot in the face. And the person who shot him in the face left him for dead, he thought he was going to die, was quickly convicted in Texas and given the death penalty.

And the reason this story is extraordinary and consistent with the theme we’ve been discussing is that as I write in the chapter, Rais Bhuiyan did something that I could never do and most people could never do.

Martha Minow:

I couldn’t.

Preet Bharara:

This forgiveness is an aspiration and a noble one in certain contexts, but he forgave his assailant and then spent the next several months basically full time trying to prevent his execution, up until the day that Mark Anthony Stroman, I think was the defendant’s name, up until the day that Mark Anthony Stroman was put to death.

And to me, I don’t know what it says about the law, I don’t know what it says about how I might’ve done my job differently. I don’t know what it says about how legislators could craft laws differently or judges should decide cases differently. But boy, did it make me think about values and what cosmic justice might be and how I should think about the world. What was your reaction to that and how does it fit in with your work?

Martha Minow:

Well, thank you for the homework, and thank you for writing the book. I look forward to reading all of it. And I love the title, because justice has to be a verb. It requires a daily continual striving.

The story that you tell is so moving and so compelling. You didn’t mention here what you do in the chapter, this defendant killed two other people. And so the question of standing who can speak for victims, it couldn’t be more poignant than in this circumstance. But Mr. Bhuiyan is a Muslim, and he said, “My religion teaches me that to save one life is to save all of humanity.” I mean, it’s interesting, that’s what many religions teach, something very similar. And he acted on that in a way that I find unfathomable, because the life he wanted to save was the life of the man who had nearly destroyed his and destroyed other people. But you tell, and I think this is so powerful, that they actually communicated and how that changed the heart. Maybe it was a moment of some humanity.

I don’t think that a system of law can operate that way, but a system of law can make room for those kinds of expressions. Even the design of a courtroom can make it more or less likely that you’ll have those personal encounters. The Truth And Reconciliation Commission in South Africa actually had psychologists on staff who could actually set up meetings if people wanted them, victims and perpetrators of the apartheid violence. But no requirement, because any requirement of forgiveness then makes it not believable. It’s not real.

Preet Bharara:

It has to be voluntary.

Martha Minow:

It has to be voluntary. It has to be a choice. So I think it’s absolutely beautiful as a closing chapter, and I understand why it’s beyond justice, but I hope that it’s the kind of consideration that’s in the mind of a prosecutor and in the mind of victims.

Preet Bharara:

Yeah, there’s a word that I haven’t used much, if at all, since I studied political philosophy at your university and that’s supererogatory, which sounds dirty, but it’s not. If I recall correctly, it’s sort of a moral philosophy phrase to describe that which is really beyond moral, above moral, above and beyond the call of moral duty. And this kind of forgiveness strikes me as that kind of thing. And I wonder overall, if it is correct to assess that we and many, many societies are just not mature enough, wise enough to embrace this idea and sentiment of forgiveness. I mean, it’s something that religions teach individuals to be able to do when they’ve suffered their own pain, non-criminal harm caused to them. As I said, `not to overshare, but as I’ve gotten older, the prospect of forgiveness becomes more available to me and it’s not available to a lot of people. Do you have a reaction to that about maturity?

Martha Minow:

Yes, I do. I think it is, it’s a kind of wisdom, but I also liked your reference earlier to bankruptcy, because it’s not by accident that the language of bankruptcy is forgiveness as well. And there is in a personal, also systemic. U.S. constitution gave Congress the power to authorize forgiveness. And this was really a personal desire of Jefferson because Thomas Jefferson experienced bankruptcy over and over again. He had debts that were terrible. But he had a political philosophy about it, which is there has to be a chance for starting over. And that you can see it when we’re talking about financial matters, but boy, it’s even more vivid when we’re talking about what we now call crime.

Starting over, Bryan Stevenson says so powerfully, none of us should be judged by our worst moment. We are more than the worst moment. Could you have a chance for starting over? Even if you’re going to be put to death, do you have a chance to say I’m sorry to those you hurt? Every minute is a new minute. And I think as we get older, yes, I’m older than you, you see how precious every minute is and you don’t want to waste it. You don’t want to waste it with resentment. And you want to actually be generous to people because I see all the mistakes I’ve made, I hope people will forgive me. I see people I taught 44 years ago and I say, please forgive me.

Preet Bharara:

They’ve forgiven you? I’m sure you have nothing to be forgiven for. Now, the other counterpoint or corollary, or what other word, maybe that’s those are not the right words of forgiveness, and particularly in the story that I tell at the end of my book, is redemption. In the best, most lyrical, I guess biblical, sentimental sense, the possibility of forgiveness allows the possibility of redemption and that’s a good marriage of things.

Martha Minow:

It’s a kind of script. And the hope is that the apology is met with forgiveness and the forgiveness is met with redemption. But not everybody fits the script, and not always.

Preet Bharara:

Not always.

Martha Minow:

And I think we have to be forgiving enough to understand that humans are complicated and have to have enough choice and enough free will not to be scripted.

Preet Bharara:

Yeah, look, I prosecuted for a long time and I think people, there’s a need for punishment, there’s a need deterrence, there’s a need for toughness and all of that, but I think it’s important to open your mind up to this other idea and these other aspirations. So that’s why in a fairly hard-nosed book about prosecuting people and holding them accountable and sending them to prison, we also talk about conditions of incarceration and this concept of mercy, forgiveness, redemption and everything else.

Martha Minow:

Well, you and I are parents, and you’re not doing a child a service to not have consequences for actions, but nor are you doing a child a service to never, never adjust the consequences based on the circumstances. And that’s what we hope. We hope that we bring those same desires for a longer-term relationship, for the growth of the individual, even when we’re talking about society.

Preet Bharara:

I’ve often thought about maybe the second most famous Herman Melville story, not Bartleby, but Billy Budd, about the sort of outstanding human being who commits an offense and he must hang for it. And I actually tried to write about that and it implicates issues of forgiveness, mercy, some of the issues we’ve been talking about, and I found it very hard to write about in our system of justice, and maybe the captain in that story should have read some of your work.

Martha Minow:

I don’t know if you have a mutiny on a ship. It’s not a metaphor, it’s a real ship. I don’t know, you probably need some pretty swift and harsh justice, but then I’m not as forgiving as the individual you wrote about at the end of your book. I think that there’s a reason that Billy Budd is so enduring, it’s been made in two movies, and it’s read still to this day in schools, because it speaks to something very fundamental. We need rules, but we also need to understand that their mindless application is not always justice.

I think about the victims at Mother Emanuel Church, the mass shooting by Dylann Roof and many members of this congregation who survived, forgave this shooter, his hatefulness, his racism. I can’t imagine it. Why would you do that? I talked to some people who go to that church who said, you have to understand people who have spent their whole lives trying to be the kind of person who could forgive. Well, I think your notion of the moral standards that are above moral standards is the right place to put that. That’s admirable, but that’s not what most of us can do. And most of us, we just try to get along and try to not make things worse.

Preet Bharara:

Look, and any institutionalized version of forgiveness can be abused and be taken advantage of.

Martha Minow:

Yes.

Preet Bharara:

Can I end with, I hope this is not too frivolous a movie reference.

Martha Minow:

Love the movie reference.

Preet Bharara:

There’s a great Cohen brothers movie called Miller’s Crossing.

Martha Minow:

Oh, yes.

Preet Bharara:

Which hasn’t gotten as much attention as many of their other movies, but I think is just as good as their top films. And the Gabriel Byrne character is double crossed by the John Turturro character, and the Gabriel Byrne character is supposed to kill the John Turturro character, and he doesn’t. And then he makes Gabriel Byrne’s life very miserable and he comes upon the still living John Turturro, and this popped into my head because there’s something wrong with me. And he basically says, “You forgave me once. What are you going to do the next time?” And I think the line is something like, “I’ll just squirt a few and you’ll let me off again.” So there’s that Cohen Brothers statement on this issue of forgiveness, but-

Martha Minow:

The abuse is very real and people who are sociopaths can be the most persuasive and the best actors. So if a system tries to give people credit for apologies or for forgiveness, it will be abused.

Preet Bharara:

Well, look, we could go on for hours and we need to have you back and finish this discussion.

Martha Minow:

Thank you so much for the wonderful questions, for your insights.

Preet Bharara:

Martha Minow, such a pleasure to have you on. Thank you so much.

Martha Minow:

Thank you.

Preet Bharara:

My conversation with Martha Minow continues for members of the CAFE Insider community. In the bonus for insiders, we discuss whether judges should be more outspoken.

Martha Minow:

I think that we are living in a rather terrifying time where my friends who are judges received death threats, not just pizzas.

Preet Bharara:

To try out the membership head to cafe.com/Insider. Again, that’s cafe.com/Insider. Stay tuned. After the break, I’ll answer a question about how U.S. attorneys are appointed and unpack the situation unfolding in New Jersey’s U.S. Attorney’s office.

Speaker 3:

Now, let’s get to your questions.

Preet Bharara:

Before I get to your questions, I want to acknowledge something going on in my professional life. I got a lot of messages about a new client that I have recently taken on, that client, Senator Adam Schiff, very familiar to all of you as a champion of democracy and the rule of law. As you may have read and seen, Senator Schiff is being attacked with baseless allegations of mortgage fraud. I’m not at liberty to say more right now beyond what I said in my statement over the weekend, that the allegations against Senator Schiff are transparently false, stale, and long debunked. I can also say it is an honor and a privilege to be representing Senator Adam Schiff.

This question comes in an email from Robert who writes, “I’ve been following the unusual situation in the U.S. Attorney’s office in New Jersey involving Alina Habba and Desiree Leigh Grace, but I’m struggling to understand the legal mechanics. Why were federal judges able to appoint Grace as acting U.S. Attorney in the first place? Does the President have the authority to remove her and reinstall Habba? Could you help make sense of how all this works?”

Well, Robert, as I record this, as I’m answering your question, I want to point out a personal professional anniversary for me. 16 years ago today on August 13th, 2009, I myself was sworn in as the U.S. Attorney for the Southern District of New York. So your question is a great one, and it’s a bit of a complicated answer for a variety of reasons. Let’s start by talking about how the U.S. attorney appointment process works under normal traditional circumstances and the way it worked with me.

So ordinarily, the process begins with the President nominating someone to be the U.S. attorney in a particular district. Generally speaking, depending on the party affiliation of the home state senators from the state, the president will lack on a recommendation from one or both home state senators. That’s how I got nominated. Senator Schumer back in 2009 recommended me to the President of the United States, and he announced his intent to nominate me a few months into his tenure in the first term in 2009. There’s also what’s called a blue slip process. That gives home state senators a chance to approve or disapprove of the president’s pick, whether they were consulted or not. If both senators return a positive blue slip, the nomination moves forward to the Senate for a confirmation vote. That’s a process that has generally applied to federal district court judges as well, and that’s what happened when I was nominated back in 2009. And that’s how it works for most U.S. attorneys across the country.

Now sometimes when there’s no Senate confirmed U.S. attorney and a vacancy has arisen in a particular district, there are a number of things that can happen. The Attorney General can appoint an interim U.S. attorney, but that interim U.S. attorney appointment lasts only 120 days. That’s how Alina Habba in New Jersey initially got her job. AG Pam Bondi appointed her to serve in an interim capacity. So far, so good. By the way, the same is true for Jay Clayton, who is currently the interim U.S. attorney in my old office, the Southern District of New York. As many legal observers have pointed out, Ms. Habba’s principal qualification it seems was having served as personal lawyer to Donald Trump in one or more of his cases.

Now, if you’re still with me, if the 120 day term expires without a Senate confirmed successor, the law, and it’s a particular statute in case you’re keeping score, it’s Title 28, United States Code, Section 546D, the court has some role to play. The court can do, I think one of three things. It can decide to appoint the interim, the person who is in place, it can decline to appoint the interim and do nothing further, or it can appoint someone else. By the way, a historical footnote, the current version that law that gives the court such power was enacted in 2007 following an investigation that I helped lead with respect to the firing of United States attorneys.

So in New Jersey, the court with the power under that statute essentially chose the third option, appointing someone else. So instead of reappointing Alina Habba, they selected her deputy Desiree Leigh Grace, a career prosecutor with extensive criminal law experience. In fact, she was a career prosecutor who had been in that office for a number of years, where she prosecuted, among other things, violent gang members, including MS-13. By the way, Grace was handpicked to be the number two by Alina Habba and presumably had the blessing of folks and officials at main Justice in Washington.

One more thing, she was a registered Republican, but Grace’s time as U.S. attorney was very short-lived, which is why you’re writing the question. Almost immediately after the judge’s appointed her, the Justice Department fired her, not just from her position, but from the office and the Justice Department as a whole. Attorney General Bondi even posted on social media that, “This Department of Justice does not tolerate rogue judges.” Unclear how the judges could have been rogue when they were following statutory authority.

Now, the president is allowed to fire U.S. attorneys. He was allowed to fire me, and he did. They’re given that power by statute as well. But they engaged in kind of an interesting funky gambit. They turned to another law, the Federal Vacancies Reform Act, or FVRA, as a way to reinstall Habba over the wishes of the local court. That law, the Vacancies Reform Act, allows the president to fill a Senate confirmed position temporarily this time for up to 210 days, or for as long as a nomination for the role is pending in the Senate. However, now stay with me here, the law generally prohibits appointing someone as acting U.S. attorney under that law if they’re already the nominee for the same position. So to get around this, Trump withdrew Habba’s nomination before naming her acting U.S. attorney under the FVRA. Now he can choose to renominate her at a later date, and that’s the basis on which Alina Habba is serving in the role today.

But the maneuver has a lot of people scratching their heads. It’s also prompted legal challenges. Grace herself has filed a complaint with what’s called the Merit Systems Protection Board, calling her firing completely unjustified. There’s also a question that some criminal defense lawyers are raising about whether Habba’s tenure is lawful and whether or not that implicates the legitimacy of charges against his client and other defendants as well.

By the way, this drama is not just playing out in New Jersey. A similar situation unfolded in the Northern District of New York some weeks ago, with an interim U.S. attorney named John Sarcone. In that case, the judges elected option two, they decided not to keep him in the role but didn’t appoint someone else. The Trump administration in that situation bypassed the court by having the Attorney General appoint Sarcone as a “special attorney” under federal law. That statute allows the Attorney General to appoint special prosecutors for specific matters, but using that authority to effectively run an entire U.S. attorney’s office is at the very least dubious in the eyes of many.

By the way, this issue is going to become front and center again in a different district that I have more familiarity with, the Southern District of New York. The interim U.S. attorney there is coming up on his 120 day deadline. Sometime, I think next week, we’ll see what the court does in the Southern District of New York, and what, if anything, the Trump Administration does in response. Stay tuned.

So having answered such a substantive, complicated question, thought we close it out this week with something a little less serious. The question comes from a post on Blue sky from Rob. “What is your favorite pasta and why is it fusilli?” Okay, seriously? Fusilli? Is that anyone’s favorite pasta? No offense to the fusilli lobby in the country, but I don’t think it’s in my top 10.

Fusilli, folks, for those of you who like me, don’t put it at the top of your pasta hierarchy, it’s like a spiral or corkscrew that often gets mistaken for rotini. They’re similar, but they’re just a little bit different. So fusilli may be the listener’s favorite, it’s not mine. It’s also not America’s favorite either, at least according to a study by the food blog Inspired Taste. What’s the top pasta in America? Spaghetti. Not surprising. Penne a close second. So I love spaghetti, grew up on spaghetti in New Jersey. I like penne, but I find penne largely uninspiring, unless it’s in vodka sauce. That’s just me.

Our research also reveals that pasta love is surprisingly regional. California goes for fettuccine. Angel hair interestingly is big in Hawaii and New Mexico. And South Dakota, Alaska, and Montana prefer rotini, fusilli’s close cousin in the spiral family. As for my favorite pasta shape, it is hands down, no question for a very, very long time, pappardelle. Pappardelle is basically pasta perfection. In a close second, less often found in Italian restaurants in America, pici, which is a rope like pasta. If you haven’t had it, you should try it. Anyway, the good news is it’s a free country, and unless until there’s an executive order to the contrary, you can enjoy any pasta you like.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, professor Martha Minow. 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. You can also now reach me on Bluesky, or you can call and leave me a message at (833) 997-7338. That’s (833) 997-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.