Preet Bharara:

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

Ken Salazar:

The Trump value system is counter to everything that I believe, and it’s counter to really what Democrats at their heart are about and have been fighting for since LBJ and JFK and Barack Obama. Those were the right values that we were fighting for and we should still continue to fight for. That said, Trump was right on a number of things. He was right, for example, on the border.

Preet Bharara:

Welcome to Stay Tuned. I’m Preet Bharara. My guest this week is former US ambassador to Mexico, Ken Salazar. He’s now senior counsel at my law firm, WilmerHale. Before that, he had every kind of government job. He was Colorado’s attorney general, a US Senator, and Obama’s Secretary of the Interior. He joins me this week to discuss his great new book, Borderlands: My Fight for an Inclusive America. That’s coming up. Stay tuned.

Ambassador Ken Salazar, welcome to the show.

Ken Salazar:

Thank you, Preet. Great to be with you this morning.

Preet Bharara:

It’s great to see you. We have a lot to talk about. You have this great new book out, which I will say is not the typical politicians or former politician’s memoir. You are pretty frank. And we have a lot of current and former politicians on the show and they’re not quite as candid as you have been on some important policy issues. So we’ll get to that. I should note that you and I are law colleagues at the WilmerHale firm, which I call the fighting WilmerHale firm. Before that, you had a number of lesser jobs, including attorney general of the state of Colorado, senator from the state of Colorado, cabinet secretary, head of the Department of the Interior, and ambassador. So I think those four positions are the equivalent of the government EGOT. I think you’ve done all of them. Is there a job that remains in government that you wish you had had or that you want to have?

Ken Salazar:

Those jobs have always been a great privilege and blessing for me. And each one of them has been its great joy, also it’s great challenges. And so being in those positions, I have been privileged in my life. And now my focus is the book, it is Borderlands, and we are taking it all over the country and that’s my purpose for being here.

Preet Bharara:

Any particular one of those jobs better than the others? Do you love all your children equally?

Ken Salazar:

They were all awesome jobs. They’re all difficult jobs, very, very difficult jobs. The hardest of them all was US Ambassador in Mexico because there I had to deal with the reality of the US and very dysfunctional politics here on the border in immigration and the Americas and also in Mexico with a very difficult political circumstance in Mexico. So that was the hardest of all the jobs that I’ve had.

Preet Bharara:

You are a fifth generation Mexican American, correct?

Ken Salazar:

Fifth generation in what is now the state of Colorado and our ranch where I spend a lot of my time, and 12th generation in New Mexico, just about 110 miles south of our ranch.

Preet Bharara:

So we have a lot of discussions in this country and on this podcast about borders, about immigration, about the democratic policy proposals such as they are, the ones that succeed and the ones that don’t. Mostly they don’t succeed. But there’s not a lot of time spent on how our southern border, Mexico’s northern border, became a border in the first place. And you make that point in the book, you talk about how lots and lots of folks who are involved in policy as between the two countries don’t know the history or give the history short shrift. Mexico constituted as it is now, as you alluded to a minute ago, is not the Mexico that existed 150 or 200 years ago and the same with the United States was not. So how did we get to the border that we have now?

Ken Salazar:

So to understand it, the border today is a creation of war. It was a war between the United States and Mexico. The United States came out victorious in that war in 1848. By then, all of what is the Southwest of the United States had been part of a Spanish rule, Spain, New Spain, and then part of the Mexican sovereignty. So until the war between the United States and Mexico ended in 1848, people like my family and many others already inhabited places like the City of Holy Faith, Santa Fe, New Mexico, and the villages in California and a lot of different places all around the Southwest. The war comes, a new border is created, Mexico loses 55% of its territory to the north. And that war and the border then to me explains the political dynamics, the very difficult political dynamics around the border and migration, both here in the United States and Mexico.

And Preet, unfortunately here in the United States, there is a complete dearth of understanding of that history of the US-Mexico relations. And until there’s a much better understanding of that, we’re going to be caught in this political abyss where there are no good solutions and continuing human suffering, economic opportunities missed, national security compromised until people really get a good understanding this 2,000 mile shared border and the 130 million Mexicans on that side of the border and the 330 million Americans on this side of the border, 70 million of whom are Hispanic, Latino, and 50 million of them are descendants of Mexican Americans. So until we get that historical understanding, the current reality on the table and understanding that the future of the United States of America is dependent on understanding that relationship, we’re going to continue to flail away, flail away in this political abyss of dysfunction and inability to come to common sense solutions.

Preet Bharara:

How important is Mexico to the United States versus how important is the United States to Mexico?

Ken Salazar:

They are both indispensable to each other. Neither can prosper nor have national security unless they recognize the high importance to each other. And that unfortunately, Preet, has not happened. And this is true for Democratic presidents as well as Republican presidents. And we’re now at a low time in terms of those relationships with this current president, with Donald Trump. But the reality of it is that until we understand the importance of the relationship, the United States isn’t going to give it the kind of attention that brings us solutions. And likewise in Mexico, the foreign policy paradigm of the United States has been, in my view, very badly exercised in the sense that no one has taken the opportunity to look to the South to make it a priority for the Americans, the creation of a new North American alliance. JFK perhaps was the last of the presidents to do that when he formed the Alliance for Progress, which had a short life. But nonetheless, he put in attention, which was a positive attention on the relationship with the Americas.

So your question on indispensability, absolutely. It’s an indispensable relationship, first, from an economic point of view, the integration of supply chains. Second, from a national security point of view, the defense of the United States and the continent. Third, the cultural integration that really exists between the United States and Mexico already. But the relationship has to be a priority, and it has not been.

Preet Bharara:

So you write a line in the book that is not a line that a lot of Democrats write or say, which is you concede something. You say in recent times, “The border was antiquated, under-resourced, underdeveloped, insecure, and broken.” And then you say, and this is the line, “In this, Trump had been correct.”

First question, non-substantive. Have you gotten grief for saying Trump was correct about something?

Ken Salazar:

Not really. I mean, there’s lots of people criticize the book and what I’m doing. More people have been very positive about it and saying thank you for saying things that needed to be said because not very many people have been saying it. I think it’s important for Democrats, those who believe in the relationship and really the value of an inclusive America, to understand that we can’t always just be in a zone of comfort when we’re just speaking to our own camp. The fact is that’s what’s been going on for a long time. And because of that, Democrats have failed to get to the solutions that we need. That’s been on the Democratic side. They also have been hindered and stopped at every corner by Republicans. Republicans only care about one thing, and that’s keeping the border and migration as a huge tool in their political arsenal. The border broken, migration system broken, that’s music to the Republican ears. That’s why when we worked so hard with Ted Kennedy, John McCain, President Bush, Republican Speaker of the House Dennis Hastert killed our comprehensive legislation in 2006.

That third rail of American politics is something that has to be understood. And I hope that good meeting Republicans understand that. I think the corporate community can understand that. But unless we speak to the truth of the reality, we’re just going to continue in this dysfunctional abyss.

Preet Bharara:

By the way, I think Trump was right about some other things too, about rig systems and about how certain people had been left behind. It’s the solutions that I think that are coming out of his administration, both of them that are problematic. What was Trump right about that Democrats were not prepared to concede and agree to?

Ken Salazar:

There was a lot, but let me say first, the Trump value system is counter to everything that I believe, and it’s counter to really what Democrats at their heart are about and have been fighting for since LBJ and JFK and Barack Obama. Those were the right values that we were fighting for and we should still continue to fight for. That said, Trump was right on a number of things. He was right, for example, on the border on the inattention to the Americas. And so what he’s doing is he’s putting a lot of attention on the border on Latin America, but it’s coming out of a value system that’s an antiquated one. Preet, he’s taking us back in that relationship in the Americas to the Monroe Doctrine. I think he himself calls it the Don Road doctrine.

Preet Bharara:

He does.

Ken Salazar:

You can’t go back there. You cannot have a relationship where it’s American dominance of the Western hemisphere. You have to have a relationship based on the modern values of international relationships and building relationships that benefit the United States of America, but also lift up those countries with whom we have relationships. And that should include our neighbors to the north in Canada, as well our neighbor to the south Mexico where we share the 2,000 mile border. So he’s right in putting the attention on the issue, but he does it for political gain. He doesn’t do it because he really is looking at a solution that is in the best interest of the United States.

Preet Bharara:

So at the same time that you acknowledged that Trump was right about some things, but he has a poor value system, you didn’t really mince words about the Biden administration, including saying among other things that you weren’t sure they understood or care about the country’s relationship. And to me, most importantly, when you think about leadership and policy, no one is in charge of the crisis on the border. There was no czar. There was nobody sort of overall in command. How big a mistake was that and why was that?

Ken Salazar:

President Biden and his team inherited a world that was in chaos. It was a pandemic. People were thinking the end of humanity. There was a crisis in the Middle East, Russia invading Ukraine. And so the attention of the president’s team went elsewhere, but that’s only part of the story. The other part of the story is that they were trapped in the same old antiquated paradigm that the Mexico and the Americas are to be thought as a second class, maybe as a third class relationship. It’s not an important relationship. It’s much more important for a president to be seen walking down the halls of Buckingham Palace or being in places in Europe than it is in the Americas and Mexico. It took a hundred years after the Mexican American war for a president to visit Mexico. This president, Donald Trump, has never asked president been to Mexico. There had not been a president that come to Mexico until Joe Biden went in 2023 for nine years. A long time had passed.

And so the relationship of the United States from the presidential point of view and the White House point of view relegates the relationship of Mexico and the Americas to a very inferior class. That can’t be the case. That must change. Now, the senators, many of them I know, and I have a lot of respect for them, and members of Congress, the House, many of them do get it and many of them did try and many of them did come to Mexico for meetings with the president of Mexico to try to figure out this future. Among them, I would put Chris Murphy and Chris Coons. I would put Michael Bennett and I would put people on the Republican side like John Cornyn and others who went down and really tried to understand how we would create this new relationship.

The problem is they’d come back to Washington and they’d get caught up again in this inattention and this dysfunction of politics. And as what happened when the Lankford, Sinema bill was about ready to be approved in the Senate, Donald Trump comes in and kills it. Kills it why? Not because it wasn’t a solution, but it was because he wanted to keep the issue of a broken border and migration alive for a political benefit. That has got to change.

Preet Bharara:

Can we talk about a linchpin of the Trump agenda or at least his political campaign the first time around, build the wall and Mexico is going to pay for it? Did we end up building a wall that Mexico paid for?

Ken Salazar:

No, no. Mexico has never paid for the wall, but it’s interesting, Preet, when you asked that question, even this morning I’m doing the Spanish translation of the book. It’s a different book, but it’s in Spanish. And I was just going over the chapter of my time in the US Senate where I would get hundreds of bricks of red bricks that would be mailed to my office in Washington, DC, my office in Colorado, and my home where people would scrawl on it, “Build the wall. Build the wall.” That was back then. That was ’05 and ’06. Nothing has ever changed. The wall now is being built.

I mean, don’t get me wrong, the national security instruments and laws of the United States are being used to build this wall. At the end of the day, it’s so anti what Ronald Reagan did when he went to Berlin and said, “Gorbachev, take down this wall.” Those are all issues we’ve been debating for 20 years, and it’s something that Trump hung onto. He still sees it as his major political keystone achievement. And while we need borders, and I agree that we need borders and we need enforceable borders, the fact is that he’s going about it in the wrong way.

Preet Bharara:

So explain to people, this happens with a lot of issues. This happens with gun regulation issues, trade issues. It happens with inflation. It happens with lots and lots of policy points in the country using ID, the requirement of ID at the ballot box. The Republicans, and often particularly the MAGA Republicans, have the easier slogan because it doesn’t sound terrible, have an ID at the polls, and the argument that depending on how you do it and what the requirements are, that’s voter suppression, it’s not election security. So not to overly analogize that, here you get those bricks and people are saying, “Well, if Mr. Salazar believes that there should be a border and believes you’re not a country without a border, which echoes what Donald Trump says and has said, what’s wrong with the wall?”

Ken Salazar:

What is right with a secure border is that you need to have a border that works. That means physical infrastructure, it means barriers, it means port of entries. There are some 30 or so along our 2,000 mile border, by the way. It means laws that are enforceable. It means all of those things. What it does not mean is that you build the Great Wall of China and you only build it on one side. If you’re going to have something that’s going to work here for the 130 million people who live south of the border and the tens of millions who live right alongside the border from San Diego, Tijuana to Brownsville and Matamoros, El Paso, and Juarez, all along the border, you need to figure out a way of doing it on both sides of the border. That requires joint planning, joint resources, and joint enforceability, some joint security. And there’s a lot of problems on the Mexican side, but it has to happen. And the only way it happens is if you have a president that understands and pushes on those issues.

Preet Bharara:

What about the folks who are in the country who don’t have status? Your time in the Senate as an actual member of the Senate coincided with my time as a staffer on the judiciary committee. And I remember the efforts of Ted Kennedy and John McCain and you and others where there was a lot of hope in ’05, ’06, I think, because you had a Republican president who was in favor of comprehensive immigration reform in some fashion, and you had Democrats on board and you had lions of the Senate, I named them, and it still didn’t get done then. What hope is there to get something done inside the United States with respect to those folks? This is a compound question. What do you think about the deportation efforts of this administration? And if you were in charge and you could be the czar, what would you adopt as the best strategy and policy?

Ken Salazar:

Right now what’s happening is the United States, under this administration, has embarked on a reign of fear and actually of death. Preet, when we were back working with the lions of the Senate, and a good president, I didn’t always agree with him, but George W. Bush and I worked on a lot of different things together, in those days, we used to talk about the 10 to 12 million undocumented people here in the United States. And you’ll remember the conversation. We want to bring people out of the shadows into the light of the United States, the farm workers working in the dairies of Wisconsin and Idaho, those who are working in the landscaping industry all around this country in all 50 states, those who clean hotel rooms. Everybody knows who they are, but they live in the shadows, and they’ve been living in the shadows of our society for a long time. Well, they got from living in the fear of being in the shadows to living in the fear of death.

We see what happened in Houston, Texas with Mr. Salgada. We see what’s happened in Maine. We see people who are being killed, and they are innocent people who are being killed by our own government. That’s not the kind of enforcement mechanism that our Department of Justice, our Homeland Security Department, our ethics of policing, that’s not where we ought to go. And so that is why we need to have a program that also addresses that. So when we talk about the border and migration, those are central components of it, but we also need to speak out for the dreamers, for those people who have been here in the United States for a long time, who have been here, who have supported our economy, who have continued to make us a great nation, but who continue to live in this fear.

So part of what we have to do is find a pathway for legalization. It’s not that hard to do. We have done it before. There are lots of proposals on the table. It’s a matter of getting the right kind of leadership. Now, I have spent a lot of time all over this country. I go to places like Idaho, staunch, conservative, Republican, and yet I can tell you if you’re those farmers that are picking potatoes and wanting to make a living or you’re any part of the agricultural industry of Idaho, you know how important this issue is. And so it’s those people. And it’s not only Idaho, it’s Nebraska, it’s the Dakotas, it’s these red states. They have to wake up and come to the table and say it’s an economic imperative for us, but it’s also moral obligation. And once we’re able to create the kind of coalition that is powerful enough, that’s Democrat and Republicans and independents and the faith community and the humanitarian advocates, the US Chamber of Commerce, the Chambers of Commerce in every single state, it ought not to be that difficult.

Preet Bharara:

Right. You’re saying all these folks support immigration reform that includes a path to citizenship.

Ken Salazar:

The first step, given our political reality, we got to be common sense about it. We got to get things done. And right now what would work is we got to give legal status to people who have been here and who have been crime free. And when we do that, then you have people who at least have legal status as opposed to people who continue to live in fear, who continue to be hunted down. That’s what we got to do, and we can figure out the pathway to citizenship in accordance with a point system, with other kinds of things that we’ve had on the table for a very long time.

Preet Bharara:

I’ll be right back with Ken Salazar after this.

How much does the existence and proliferation of the drug trade in and through Mexico affect our relationship with that country?

Ken Salazar:

Very much so. The drugs, fentanyl that comes across the Americas by boat or by land.

Preet Bharara:

Is Mexico doing enough or is Trump right to be angry at Mexico all the time about this problem?

Ken Salazar:

He’s right to focus on fentanyl, just like we did with President Biden and his team. And we did, by the way, a tremendous amount on the fentanyl and security issues in the Biden administration, something that we ought to be proud of in what we did. But it’s a solution that, again, is going to require the kind of cooperation that allows us to do the enforcement right, go after these criminal cartels, which we did a lot of when I was as US Ambassador of Mexico. But at the same time, we also have to understand the demand side here in the United States.

This country of ours has a fentanyl problem. We have a drug problem. And so the prevention side of it, and Dr. Gupta who led this effort during the Biden administration was right. We’re able to bring down the deaths from fentanyl significantly in the last few years into the Biden administration. I don’t hear any of that conversation going on now. All I hear is, let’s go and take out these cartel leaders, which is okay with me. And we did a lot of that during the Biden administration as well, but you need to have a comprehensive solution, otherwise it’s just going to continue to be a problem that festers of the soul of America.

Preet Bharara:

So you show up as ambassador to Mexico when the president known as AMLO was in charge of the country. Good strong relationship. You can boast whether it’s five generations or 12 generations back, Mexican family origin. What was the relationship between your background and heritage and the job you had to do?

Ken Salazar:

It was a strong relationship and a positive relationship. There had been really no significant communication between the United States and Mexico for a long time when I got there. And so the fact that I could share a history, a heritage allowed me to open the door as a diplomat to have the kinds of conversations that we had. And we did create a vision and a program to solve our problems together, to further integrate our supply chains, to move forward with the implementation of the United States, Mexico, Canada trade agreement to address the ravages of climate both in Mexico and the United States. We did all of that. And so that was an opportunity created because I was able to open those doors through the relationship. Now it didn’t end well. It didn’t end well. As Borderlands says very unequivocally, the last months that I was there, I was persona non-grata. So it didn’t end well, but it didn’t have anything to do with the lack of vision.

Preet Bharara:

Because it’s interesting and you’re very forthright about it. There came to be a new president of Mexico, President Sheinbaum, who has called you a liar. And what’s that about?

Ken Salazar:

First with President Claudia Sheinbaum, I have a lot of respect for her. She’s a climate scientist. She knows the United States well. Now, the politics of Mexico are very, very intensely difficult because she’s coming up for what they call the revocation election, and the former president of Mexico is still very powerful within the Morena Party. So you look at somebody that you can target, and it so happens that that happened as she targeted me with those words. I don’t really take offense at them because I understand the reality of Mexican politics. And I do hope and I have the highest expectation that she’ll transcend those politics to really embrace the vision of a new North American Alliance. It’s something that she did often with me. When I was in Mexico, she was mayor of Mexico City, which means she was a governor of the largest population in Mexico. She also was someone who was a friend because we worked on a lot of different things together. And so I have high expectations for her.

The breakup, Preet, was in part to a world that you’re familiar with, but it had to do with the cartels and the Sinaloa Cartel and the fact that we had exerted so much pressure on them that they end up kidnapping and turning each other in and ending up in the United States turning themselves in. And that, for whatever reason, was never seen like a good thing by the former president of Mexico. I never understood why it should have been seen as a great law enforcement victory, joint law enforcement victory between the United States and Mexico. And I hope that with time, she comes around to that conclusion as well.

Preet Bharara:

And the issue was with respect to her disparagement of you, who was involved in the operation, is that right?

Ken Salazar:

She claims it was a operation of the United States on Mexican soil, violation of sovereignty. It was not that. Attorney General Garland, who oversees the FBI and all of that, he issued the statement that I issued, which was, “Not our operation, not our plane, not our pilot.” And that was true then, and that was the information the attorney general of the United States had. It’s information that I had and I stand behind that.

Preet Bharara:

So we have a southern border. We also have a northern border. And while you were not the ambassador to Canada, Mr. Carney is in the news a lot, in particular in this last week. I was having a discussion with some folks over dinner this past weekend about the degree to which the Canadians are as unified and as patriotic as they’ve ever been. And it’s horrible to say it, but unified in their, I don’t know if this is the right word, animosity towards the United States or fearful of the way that the Trump administration has been treating Canada and its products, given the friendly relationship to the north. Is there anything from your experience with how the US has dealt with Mexico in the Trump years that informs how we should or should not be dealing with Canada?

Ken Salazar:

So I think Canada is doing exactly the right thing. This president talks about his art to the deal and how great he is at his deals. Well, all you got to do is look around the world, including Canada, and you have a deal one moment, you don’t have a deal the next. I don’t know what label you put on it, but I think the way Carney, the prime minister, has been standing up against him is what he had to do. Countries like people are not to be played with. And in this case, this guy and his people are playing with our closest neighbors to the north and south. I mean, we share a 5,000 mile border with Canada, 2,000 mile border with Mexico. You don’t play with those relationships, and it harms people on this side of the border.

You look at farmers and ranchers, I spend a lot of time with them, Preet, because I’m on a tractor and a windrower a lot these days. I’m pumping diesel. I know the price of diesel. I see folks who are having to pay exorbitant prices for everything out in rural America. That’s been, in large part, because of this erratic tariff trade policy of this president. The business community knows this, you cannot have a solid economic vision or future when you have uncertainty. And right now, the master of uncertainty is what’s coming out of the White House in terms of these relationships. And Canada is standing up in a way that I think should send a message that we need to have these long-term durable frameworks based on mutual respect, and that’s missing.

Preet Bharara:

Do you see any hope of that in the next two years?

Ken Salazar:

Not with this guy.

Preet Bharara:

I mean, it’s interesting, you were saying before… I was struck when you were saying that Mexico wasn’t deemed important enough for a president and the relationship wasn’t and has not been deemed important enough to keep up and that it’s better to be seen walking through Buckingham Palace or European countries. And I was thinking with this guy, as you referred to him, he’s not doing a bang up job staying close to NATO either. So there’s really not any friend that we have had, I’m trying to think if there are any, perhaps Israel, with whom Donald Trump has brought our country closer in his time rather than farther away. Is that fair?

Ken Salazar:

Preet, you’re right. We have become so isolated and we’ve torn a sunder of these relationships, but people have died and people have worked hard. You think about the legacy of World War I and World War II and the sense that if we were going to stop the killings that come with war, that we were going to create these instruments of peace and defense and yet they tremble. They tremble. And it’s because there’s not this sense of we’re in this together and we need to bring that back.

Preet Bharara:

Your book is called Borderlands, and we talked a lot about the border and what it means and how to deal with it. But the subtitle of your book is very interesting in 2026, I think, because the full title of your book, as we have said, is Borderlands: My Fight for an Inclusive America. People don’t talk as much about that concept as they used to. It conjures up images and visions of DEI. We have a lot of companies in this country and other institutions that have been cowed by the Trump administration’s war, I think you can call it that, against inclusion. First question is, when you talk about inclusion, while at the same time talking about having a viable and enforceable border, what do you mean by inclusiveness?

Ken Salazar:

That means everybody has to be at the table. White men, males, people from rural America, people who are not the mainstream. And that’s what diversity has been all about. If you look at the history through the legal framework that you know so well, Preet, because of your past experience, these things are part of a march towards a more perfect union. You think about the civil rights movement of the ’60s, you think about the US Supreme Court decision in Bakke, and before that the decision in Brown versus the Board of Education in 1954, all that has been moving us basically to what I think was the correct position of Sandra Day O’Connor in the Supreme Court in the Grutter case, and also President Gerald Ford, where they talked about how when we were in this together and everybody had an opportunity, it was good for our national security, for global economy, and it was good for the United States of America in education.

All those things have been under attacked relentlessly by this president. And unfortunately, corporate America in many ways has bent at the knee and has basically done the same thing. That is wrong. In my view, what makes us the greatest country in the world is that people like you and me and so many others have an opportunity no matter who we are. And in creating that opportunity for ourselves, we’re not saying that those who are part of the mainstream ought to be left out. There’s room for everybody, but we can’t live in a society like the one that is being created by this guy where we are essentially going back to the time before the Civil War.

When I think about the Dred Scott decision and what that meant and the fact that more Americans died in that war than any other war that we have been in, what were we fighting for? We were fighting for the proposition that one human being cannot own another human being just because of the color of their skin. When women got the right to vote, it was because we said women should have the right to vote. There’s no reason why not. When we ended up, all of these things that have happened in our history, Barack Obama was elected, President of the United States in 2008, you remember the euphoria? You’re part of that. I was there on the mall.

Preet Bharara:

I experienced it.

Ken Salazar:

1.8 million people. We were there because we thought we, the United States of America, stand for this proposition not only for our country, but we stand for this proposition all around the world as an example that we can do it. George W. Bush said it probably the best the day after the election from the Roast Guard where he said how proud we are of our country. Nobody can say that today. Nobody can say that today because of the leadership that we have coming out of the White House.

Preet Bharara:

A, do you believe that we ended up being more divided post-Obama than pre-Obama? And B, how could it be that people like you and I and many others who put him into the presidency two times in a row were so euphoric, not just about sort of general policies and not just about the first Black man becoming president of the United States, what it said about the country, what it said about a lot of prejudices, biases, hatreds, that it seemed we should celebrate being put aside for such a monumental thing to have? And then more importantly than the symbolic nature, at least in my view, was the way he conducted himself. And I saw a poll that says Barack Obama remains the most popular living president and one of the most admired men in America. And yet we are told that there are sufficient numbers of people who despised Obama when he was president, despise him still, and blame him for all the polarization. Can you understand that? Do you find any of that to compute?

Ken Salazar:

Well, first of all, it’s been something that this president has created by putting a lot of flames and things that are so untrue. I mean, he claimed that the former president of the United States didn’t have a birth certificate, those sorts of things, right? The statements that come out of MAGA mouth relative to the Obama presidency are mean-spirited, they’re wrong. We can be very upset about that.

But let me also say, Preet, that it’s been our responsibility as Democrats also because we have lost our way in a lot of different manners. I mean, you think about rural America. Why have we lost so big in rural America? Why have we become so much a set of red states and blue states? We as a Democratic Party have not spoken and cared enough about the farmers and ranchers in my valley, the San Luis Valley, in rural America where main streets are basically being shuttered, where they feel many people who live in my communities where I come from, basically feel that the Democrats have left them and don’t care about them, don’t listen to them.

So I think we have our own political sense within the Democratic Party that has led to this divisiveness that we see. But at the heart of it is a reaction by MAGA and by the people who have led this effort to say, “We’re going to take this country back to what it was before Brown versus the Board of Education.” Those people who want to segregate us, those people who want to say, “Because you are different, you’re not as good as us.” And that’s what’s at the root of this great division that’s going on in our country today. And we have to be on the right side of that inflection point that gets us back, as I say in my book, my fight for an inclusive America. That’s what we have fought our lives for. That’s what Barack Obama stood for. That’s what you stood for, Preet, when you were SDNY prosecutor. It’s about everybody in the rule of law. And somehow this president has taken us, as we would say in my country language, has taken us deep off the road and into a ditch of deep despair. We got to come out.

Preet Bharara:

What I appreciate that you have said and say in your book about diversity is something I want to ask you about. And we talked about Brown v. Board and we talked about racial hatred and racial discrimination and gender discrimination, and all those are horrible scourges and maybe the worst kind. But you have said, and I don’t hear this a lot from a democratic side, the importance of being open to and welcoming of diversity of opinion, knowledge and ideas. The Democrats spend too much time focusing on diversity of things that are immutable characteristics, as important as that is, and I support it and have my whole life, and not enough time talking about diversity of ideas and opinion and non-classical discrimination categories. And is that why you mentioned that or why else?

Ken Salazar:

So I think we have never given good definition to our efforts to create an inclusive America. And so for the time, if you will, of the Biden years, it’s diversity, equity, and inclusion. You can ask a lot of people, what does equity mean? I’m not sure people really get it. Some people say, “Well, you should abandon the term diversity.” I don’t think so. Some people say when you talk about inclusion, “Well, what do you mean?” Well, it’s not that hard for me to see it. All I got to see is who’s in the room. If I, as a Mexican American, am working on one of the most significant policy issues of the United States of America, and the only people that I have in the room are people who are just like me and who are all Mexican American and who are all male, that’s wrong. I got to make sure that we’re hearing the opinions of a lot of different people as we move forward with the policies of the United States of America. And those are different points of view.

I’m a rancher and farmer and I know the land, I know the water. We talk a lot about this in the context of climate change, an existential issue for our country. It’s a democratic issue because it’s been pushed by great leaders like John Kerry and others, but we still are searching for the language that gets a unity chorus going around this country from Republicans and Democrats together saying, “We got to save our planet. We have to save our planet because we don’t have the water supply anymore and we’re going out of business. We have to save our planet because the forests and the wildlife and the fish, they’re not healthy anymore because we’re not taking care of our planet.”

So part of what we got to do, Preet, in the whole area of an inclusive America and diversity and inclusion is we have to be consistent with what we’re aiming for. And I think Sandra Day O’Connor in the Grutter decision, which I participated in the Supreme Court, I think she was absolutely right. I think President Ford, and I quote his entire New York Times piece in my book because he was right, here’s a Republican president from Michigan who said it right about what was good for America against the wishes of his own party.

So I think we need to come back and we need to stand firmly on this proposition that we are here together from many different backgrounds, many different nationalities. Some are recent comers, some have been here for time immemorial like Native Americans, but we are all people and we’re all entitled to respect and we’re all entitled to know who we are and entitled to know our identity and nobody is better than anybody else.

Preet Bharara:

So inclusivity, people understand. And you talk about that. It’s in the subtitle of your book as we’ve been discussing. To me, the most interesting point you make and idea you get across is that you argue effectively that the opposite of inclusion is not exclusion, but rather you use a term, the opposite of inclusivity is erasure and that is what this president among other people is doing is responsible for. Erasure sounds very, very ominous, but erasure is different from the kind of exclusion politics that we’ve seen before. Erasure seems to say something more about not just where we’ll be in six months or by the end of a particular president’s term, but for years and decades to come, whether it’s in how we teach in our schools or the monuments that we keep up or take down or the history that we set forth or that we destroy. Talk about erasure and why you use that term.

Ken Salazar:

I chose that term very deliberately, erasure. I demonstrate it in lots of different ways. I’ll demonstrate it, Harriet Tubman. Harriet, a leader in the underground movement. She brought a lot of Blacks from the south to the north to freedom. We created a monument. Barack Obama created a monument in my recommendation in Maryland to celebrate her and those efforts that were all part of ending slavery. Now, this administration is trying to erase that part of our history. That’s who we are, and we need to recognize it and we’re stronger for it when we look at that part of our history.

When we look at a guy like Martin Luther King, we did a monument for him on the National Mall. Authorized it, permitted, helped build it, dedicated it. I was telling that part of America’s story, but we did it with Native Americans all across this country as well. We did it at places where we said the first Americans need to be recognized for their history, their contributions, the Navajo code talkers, you can keep going, Japanese, Americans interned in the camps of the United States during World War II, and yet the heroism of people like Senator Danny Inouye featured in the book.

So when I talk about project of erasure, these guys are trying to erase all of that, and that’s not who we are. We’re going to be weaker when we don’t recognize that history. Some of it has been painful. A lot of it has been painful until we recognize it and we celebrate.

There was a governor. In my book, I talked a little bit about him, Governor Roy Romer. German descent, name of Romer, Holly, Colorado, the Eastern Plains, the Dust Bowls, German guy. 1990s up with a bunch of conservative people in the Eastern Plains. He gets up in front of him with nothing. He says, “We should not only tolerate our diversity. We should celebrate our diversity.” He taught me a lot. Now this is a German guy, German descent. I love him. He’s still around. He’s 97 years old. I’m doing a big thing with him now on September 3rd. I invite you to come over, Preet. But that’s a kind of Gerald Ford, Roy Romer. Even I would say George W. Bush, the day after the 2008 election in the Rose Garden, that’s who we are. And we need to celebrate that and we need to make it heard all across this country.

Preet Bharara:

Can I channel someone on the right for a moment who may or may not agree with what you just said? And I try to do this more than I used to do so I can understand the points of view of other people with whom I deeply, passionately and viscerally disagree. But someone from that camp might say, “Okay, fine, as far as that goes, Ambassador Salazar.” But the left is doing some erasure also. There’s a candidate for a significant position in government who thinks we shouldn’t have Thanksgiving. There has been a campaign to change the name of Columbus Day which has largely been successful in a lot of places.

Who decides what is good history that deserves to be erased and what is bad history that doesn’t? Or the other way around, I meant to say.

Ken Salazar:

Okay. So we as a society need to recognize that all that history is important. We cannot just say there wasn’t a Confederacy and Confederate leaders because there were and they’re fighting for a set of ideas. And so recognizing that history is a okay in my book relative to knowing that it’s part of our history at the same time-

Preet Bharara:

Should be taught. Should be taught.

Ken Salazar:

It should be taught. We need to teach those things. But do you want to put up a monument to the Ku Klux Klan, the KKK? Look at my state. This was the Haven of the KKK in the 1930s, this very place where I’m sitting today. Do you want to put up a monument here saying the KKK is our way of the world? No.

So I think we take this celebration of diversity and what we do is to make sure that that celebration is one that’s creating unity in our country by telling the stories, including the painful stories of our past. That’s what monuments do. That’s why at the National Mall, Preet, you’ll remember this so well. Yes, we were there, 1.8 million people, January 20th, 2009, celebrating the greatness of America who we were. And yet there was not a single woman on the National Mall that we celebrate for their contributions, not a single African American in those days. Well, what’s wrong with that? The front yard of America isn’t telling the story of America. We need to do a better job.

Preet Bharara:

Final question that’s a little bit off track, but not really, that I meant to ask you about when we were talking about Mexico. There was a huge movement in that country, I believe while you were ambassador, to change the entire makeup of the judiciary and to have them judicial officers be elected, and you thought that was a bad idea. I also happen to think that’s a bad idea. But it is also true that outside the federal system, many, many states in the United States elect judges all the way up to and including the Supreme Court of those states. Do you think it’s bad not only for Mexico, but also for America?

Ken Salazar:

Yes, I do. I think when you have people who are supposed to be impartial, independent students of the law, which is really the collection of the best wisdom of our states in our country, and you have them in those positions, given that they’ve gotten there because of political campaign contributions, positions they’ve taken on campaigns, I just think that’s wrong. I mean, I think a merit system is what works the best. I’ve been a part of that both at the federal level here in the United States as well as the state level. And that’s why I advocate, even though you do have some states have election of judges, I don’t think that’s the way to go. You can have retention elections as the state of Utah and Colorado and other states have, but to basically choose people to become the decision makers of our rights, our liberties, our property, our families. And to basically have that in the hands of a politician, I think is wrong.

Preet Bharara:

What about prosecutors, district attorneys, and attorneys general who are mostly elected in this country? They’re not judges, but they’re not supposed to be partisan in the job either. What about them?

Ken Salazar:

I was attorney general in six years. And in those days at least, we were able to keep, we transcended the partisan politics at the time now. Money comes in, which is another whole issue we could talk about, Preet, into political campaigns. So RAGA is formed. RAGA, Republican Association of Attorneys General, started this effort now where it’s about money and politics. And so I think the offices of Attorney General across the country, elected offices, have significantly been diminished in terms of their credibility, in part because of the money that’s come into politics. And so you can have elected Attorneys General, and I believe in those offices in part because with the independence that comes with that, it’s a check and balance against the power of the executive, the power of a governor. And my hope is that we get back to having the rule of law respected here in this country.

Frankly, I know you share this, Preet, but to see what’s happening with the Department of Justice, what’s happening with US attorneys where they basically are being used as weapons of political campaigns, it’s just absolutely wrong. And it gnaws, I think, at all of us who-

Preet Bharara:

Sure does.

Ken Salazar:

… respect the law here in this country.

Preet Bharara:

That is a very good note to end on, Ambassador Salazar. Thank you for your time. Congratulations on the book, Borderlands: My Fight for an Inclusive America. Everyone should pick it up and give it a good read. And thank you for your service.

Ken Salazar:

Thank you, Preet. I appreciate it very much.

Preet Bharara:

My conversation with Ken Salazar continues for members of the Insider Community. We discuss his assessment of the 2028 Democratic presidential field.

Ken Salazar:

I took the job as Secretary of Interior. It was a sense that the West was forgotten, the flyover states. Washington cares about Washington and the East Coast, and that has to change.

Preet Bharara:

To try out the membership, head to staytuned.substack.com. Again, that’s staytuned.substack.com. After the break, I’ll answer your questions about the reflecting pool vandalism case that was dismissed by DC US Attorney Jeanine Pirro.

Now let’s get to your questions. This question comes from Jeff in the Stay Tuned Substack chat. “What do you make of the DHS general counsel James Percival’s worst of the worst posts targeting federal judges who have ruled against the administration? And are there legal or ethical concerns with a senior government lawyer publicly criticizing judges in this way?”

Jeff, that’s a great question. And I got to tell you, I find Mr. Percival’s posts deeply disturbing, as should everyone. Just a little bit of background first. On July 23rd, Percival, who, as you noted, is the general counsel of the enormous Department of Homeland Security, used his official X account to launch a series of posts singling out federal judges who had ruled against the department as if he doesn’t have enough to do otherwise in his job.

He wrote, “Every day, the brave men and women of ICE risk their lives to remove the worst of the worst from our country. Today, in honor of the DHS’s worst of the worst series, I’m starting a new series, worst of the worst district judge edition.” Percival then identified several judges by name and accused them of, among other things, issuing crazy decisions, engaging in judicial sabotage, micromanaging the department, going rogue, and practicing naked politics. A few of the judges named were these, Judge Matthew F. Kennelly of the Northern District of Illinois, Judge Allison Burroughs of the District of Massachusetts, Judge Paula Xinis of the District Court of Maryland.

Now, the Department of Homeland Security has defended the posts. A DHS spokesperson told Bloomberg Law that Percival’s comments were, “Nothing more than a factual review of judicial decisions and their real world consequences.” Yes, crazy judicial sabotage and naked politics are a factual review, of course.

Now, let me say a few things off the bat. Disagreement between and among the branches of government who are supposed to be checks and balances against each other is fine, is even healthy. Nobody who has practiced law for any period of time, myself included, has not had an experience of disagreeing with the judge’s ruling, sometimes very deeply and viscerally disagreeing with the judge’s ruling. And so as a general matter, criticism of a decision or disagreement with a decision done respectfully and in good faith is part of our democracy. Now, is that what James Percival is doing from his high post? I would say not. First, the making up of a list is juvenile. The title of the list is juvenile. The fact that his list about judges is a concoction that he came up with to parallel or mimic a different list of presumably people who have committed crimes in this country, had no status and were deported, exacerbates that juvenile nature of his post.

Now, I don’t know anything about these cases, so I don’t know if the judges were correct or not correct. We should note James Percival is not necessarily anymore an outlier. We have seen in recent times outlandish insults leveled against district court judges, including by members of the United States Senate. I’ve talked about this a lot on the show. There was the occasion when Senator Mike Lee, I believe, referred to a district court judge’s temporary decision, and this judge wasn’t even permanent judge on the case, but a temporary decision that went against the administration as a judicial coup, which I pointed out at the time, is an oxymoron because if it was a judicial process, it could not have been a coup. And by the way, there’s an opportunity to criticize a judge and to have a judge’s decision rendered null and void. That’s part of our system as well. And it’s not by making a worst of the worst list or insulting judges or using oxymorons. It’s called an appeal.

Third, I don’t want to overstate this, but it deserves mentioning that it is also dangerous. Irresponsible criticisms of judges who are just doing their jobs, whether it’s done by the right or the left, in the current climate, in the polarized society we live in now, adds, I don’t know how much, but certainly a little bit of risk to those particular judges and those judges’ families. And there have been a lot of instances of harassment of judges, and I can only presume that that is intensified by tactics and gimmicks and gambits like this.

And finally, going to part of your question, it may be, depending on the circumstances and depending on the language used, improper. Now, there is no general law prohibiting lawyers from publicly criticizing judges, but lawyers are subject to professional conduct rules enforced by the state bars that they belong to. And several legal organizations and former judges contend that in this case, Percival crossed the ethical line. Democracy Defenders Fund, lawyers defending American democracy, and 128 former federal and state judges filed a complaint asking the Florida Bar where Percival is licensed to investigate his conduct.

Consistent with some of the things I said a minute ago, the complaint argues that Percival went beyond criticizing the judge’s legal reasoning and instead made false or recklessly unsupported accusations that they had engaged in political sabotage and deliberate misconduct. And that’s something you’re not allowed to do under the Florida rules of professional conduct. And I would venture to guess every state’s rules of professional conduct.

What makes all of it worse, by the way, is that Percival is not a private citizen, and he made his statements through official government accounts while DHS was litigating before some of the same judges he named, and then he was supported and defended by his organization. It’s kind of mind-boggling. Percival, by the way, is an experienced and very credentialed lawyer, so you would think he would know better. But if you though that, you’d be wrong.

This question came as an email from Bob who writes, “I heard the discussion on this week’s Insider about Jeanine Pirro’s decision to drop the reflecting pool case. If the evidence ultimately did not support the charge, how did DOJ obtain an indictment in the first place? Did it mislead the grand jury?”

Bob, that’s a great question. And I think there have been a lot of questions lately and appropriately, not just about generally how the department is doing things and how cases are unfolding and how they’re being investigated and how they’re being prosecuted and what the president is doing, but in particular, what kind of conduct is taking place before the grand jury.

Now, grand jury practice is not especially complicated. Prosecutors use the grand jury to investigate cases to develop evidence. And ultimately, if there’s sufficient evidence in their view, to prosecute by having them vote on an indictment. That’s true in the state system, that’s true in the federal system, and it’s actually a requirement in our constitution. Prosecutors generally have a lot of advantages in the grand jury. In standard grand jury practice, prosecutors have a lot of advantages, in particular in the federal system. Defendants don’t have a right to testify as a general matter. Defense lawyers are not allowed to be present to cross-examine witnesses. The rules of evidence don’t really apply. Hearsay is applicable. So depending on what is presented to the grand jury, they can be led to a conclusion. And depending on your perspective and depending on what was presented and how the law was explained and the disposition of the grand jury, weak cases can be brought. Sometimes inappropriate cases can be brought.

Now, for a long time, and certainly when I was practicing as a prosecutor, both as an assistant US Attorney and as the United States Attorney, what happened in the grand jury stayed in the grand jury, the one way in which a grand jury is like Vegas. And part of the reason for that is grand jury secrecy rules. And part of the reason for that also is that over time, there was built up a doctrine that gave a lot of trust and respect to the way prosecutors would handle themselves in the grand jury. It’s something called the presumption of regularity. And so it was very, very rare for a defense lawyer to succeed on behalf of his or her client in making an allegation that would stick about bad practice or inappropriate practice in the grand jury or even to get to obtain from a court the grand jury transcripts. Very difficult thing.

But part of the reason I suspect you’re asking this question about the reflecting pool case is that we keep hearing about cases that are arising with greater frequency that put the presumption of regularity in question. For example, you may remember that we talked at length, as did a lot of people, about the, and I think I can say this without fear of much contradiction from anybody who’s serious, the grossly unqualified United States Attorney Lindsey Halligan in the Eastern District of Virginia handling at the last minute just before the statute of limitations was to expire on the false statements charged against Jim Comey in the first indictment. There was a lot of talk about her handling of the grand jury in that prosecution. Among other things, there was reporting that she inappropriately vouched for the evidence and made inappropriate comments about how Jim Comey could defend himself and explain himself at trial. If you know anything about the Fifth Amendment, you know that’s a no-no.

And more recently in a matter that’s been referred to as a Broadview Six case in the Northern District of Illinois, a judge has identified extraordinary prosecutorial conduct regarding the grand jury. So it’s a reasonable question to ask, what happened? Now in the case of David Hearn involving the Lincoln Memorial reflecting pool, a couple of things are important to bear in mind. First of all, you can only present to the grand jury evidence that you have in your possession. In this case, Jeanine Pirro, the US Attorney, publicly accused Hearn of vandalizing the pool’s newly installed lining. And on July 2nd, the grand jury in DC Superior Court indicted him on one count of felony destruction of property.

Now for it to be a felony, the government needed sufficient evidence that the damage caused by Hearn was at least a thousand dollars. So once he was indicted, Hearn’s defense team received part of the grand jury testimony given by a National Park Service employee identified in the transcript as MR. He appears to have been the government’s principal witness on the amount of the alleged damage in this earth-shatteringly important vital case.

Just bear with me on MR for a moment. Something that’s not necessarily typical, though it happens with some frequency, MR got a lot of questions from the grand jury. In particular, he got a lot of questions about the dollar value of the damage to the reflecting pool. So based on the documents that had been made public, on question after question, he claimed he couldn’t answer how much damage was caused or how much it would’ve cost to fix.

One grand juror asked, “And do you think this act compromised the lining or was it already compromised?”

MR said, and this is important to how this case turned out, “I cannot answer that.”

Yet another grand juror asked, as I mentioned, “Do you have an estimate of what that additional cost may be monetarily?”

The witness responded, “No.” Well, that’s a bit of a problem if you’re trying to charge a felony.

Then according to the documents, MR, the witness, was excused, and that’s where the transcript that was initially provided to the defense ends. But the defendant’s intrepid lawyers filed a motion seeking the complete grand jury transcript. So eventually, prosecutors did turn over the remaining pages and claimed it wasn’t their fault, but they had been inadvertently left off by the court reporter. That’s a new one, blaming the court reporter. And those belatedly turned over pages revealed what? That 21 minutes after the witness was excused, the witness who couldn’t answer various important questions central to the case, prosecutors brought him back to the grand jury. In response to what the defense characterized as a pointed question, the witness now stated that the damage attributable to Hearn “would definitely be $1,000 or more.”

Now I think it’s a real question what happened during those 21 minutes. So now, after a pause, this witness was quite helpful to the government and the defense team for Mr. Hearn is asking, understandably, what happened during those 21 minutes? Well, I’m not sure they ever got an answer to that question, but three days later, they got something better. The government moved to dismiss the case, as you all know. Jeanine Pirro and her team said they had received new information from the Department of the Interior showing that the pool’s widespread damage resulted from a rushed and faulty installation long before Mr. Hearn arrived on the scene. That makes a little hard to attribute the damage to vandalism, much less prove he had caused it beyond a reasonable doubt and in the amount that was alleged.

So did prosecutors mislead the grand jury? I don’t know. I don’t know enough facts about the case. I think the defense was correct in current circumstances and given the track record of this department to ask the question. I think requests for grand jury minutes and transcripts are about to become, if they haven’t already, much more common, much more frequent given what’s been going on. Anyway, I have a suspicion, I think it’s a reasonable suspicion, that this is not the last time we’re going to be talking about grand jury practice on the show.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Ambassador Ken Salazar.

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. You can reach me on Twitter or Bluesky at @PreetBharara with the hashtag #AskPreet. You can also 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 now on Substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That’s staytuned.substack.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The supervising producer is Jay Kaplan. The associate producer is Claudia Hernández. The audio and video producer is Nat Weiner. The senior audio producer is Matthew Billy. And the marketing manager is Liana Greenway. Our music is by Andrew Dost. I’m your host, Preet Bharara. As always, stay tuned.