Preet Bharara:

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

Malcolm Gladwell:

The defense of the Second Amendment has gotten so hilariously and absurdly arcane, they have reached into the 17th century Bristol to try and find someone to justify the increasingly elaborate and ridiculous arguments that they’re making on behalf of gun ownership.

Preet Bharara:

That’s Malcolm Gladwell. You’ve likely heard of him. He’s the bestselling author of a number of popular books, including The Tipping Point, Blink, and Outliers. He’s also been a staff writer at The New Yorker for almost 30 years. After decades of success with the written word, Gladwell launched the audio company, Pushkin Industries, in 2018. There he hosts the podcast, Revisionist History, a show about things overlooked and misunderstood. The newest season is all about guns, how Americans think about them and protect them, and ultimately, what we get wrong about them. Gladwell and I get into some stories from his show in this episode. We also discuss some other Gladwellian topics. He reflects on broken windows policing, first impressions, and the quiet severity of the opioid crisis. That’s coming up. Stay tuned.

Q&A

Preet Bharara:

Now let’s get to your questions.

This question comes in an email from Karen. She writes, “Peter Navarro has been found guilty, but sentencing has been scheduled for January 2024. Can you explain why sentencing takes so long?” So of course, Karen, you’re referring to Peter Navarro, an ex-Trump aide who was found guilty of two counts of contempt of Congress because when he was asked to come testify and provide documents to the January 6th Committee, he basically thumbed his nose at the committee. The referral was made to the Justice Department. The Justice Department indicted, and the trial just concluded. So it’s a good question. In the federal system, it is typical for sentencing to happen three to four months after conviction, either by trial verdict or by guilty plea. You may wonder what goes on in those three months. Well, lots of things. It is, in fact, the next distinct phase of the criminal process, distinct from the charging decision, distinct from the trial and the verdict.

During that time, both the government, the prosecutors, and the defendant or defendants make their arguments to the court in a series of briefs as to what the sentence should be. Obviously, the government and the defendant often disagree. So they do that briefing. At the same time, the probation department and the district undertakes its own investigation of the nature of the crime, the seriousness of the crime, the elements of the crime, the circumstances of the defendant, and it makes its own recommendation in what’s called a pre-sentence report for the court. Then there might be arguments that the defendant or the government might have about that pre-sentence report. So in any event, it goes back and forth for a little while. There also is an opportunity accorded for people who want to write in in support of the defendant and for a lenient sentence. So maybe three or four months seems like a long time, but it’s a way that the court takes seriously the very difficult act to impose a sentence that is sufficient but not more than necessary.

This question comes in an email from Leanne who writes, “I enjoy your show. Thank goodness you aren’t always yelling like the other side that I’ve tried to listen to. You may have addressed this previously, but does attorney-client privilege require that the attorney is actually getting paid for services rendered?” Well, that’s a good question. The short answer to your question is no, it does not. There has to be, in fact, an attorney-client relationship, and the conversations that are covered by the attorney-client privilege have to be related to legal advice. If you and your lawyer are just shooting the breeze about sports or politics separate from the provision of legal advice or an anticipation of a legal proceeding or litigation, that’s not covered by the attorney-client privilege. So when a potential client consults with me even before a dollar has been paid, that’s covered by the attorney-client privilege in most circumstances, if it’s for the purpose of retaining me to provide legal counsel. Even after that, though, there’s a whole category of legal practice that lawyers refer to as pro bono.

That’s work done without the payment of money by the client to the lawyer. It’s done charitably. It’s in fact, I think, an important obligation for members of the legal profession to engage in some amount of pro bono work. Some states have requirements, some states have thresholds that they want people to meet, but you have lots and lots of lawyers who provide excellent legal advice and counsel up to and including trial without getting paid any money by the clients they represent. Those conversations are also covered by the attorney-client privilege. So thanks for your question. This question comes in a tweet from Sandy Shriver9, “Is there a chance that many of the people that the grand jury recommended charging in Georgia may still be charged there?” Well, that’s an interesting and good question, Sandy. What you’re referring to for people who haven’t been following it closely, is that there was a two-stage grand jury process in Georgia with respect to the indictment that’s now pending against Donald Trump and 18 others.

There was first convened a special grand jury under Georgia law that would make recommendations for who should be prosecuted, but they would not themselves be issuing an indictment. Then of course, there was the regular grand jury process by which an indictment was presented to the grand jury and they voted on it, and that contained in the caption 19 defendants. We have learned from the unsealing of the original preliminary grand jury or special grand jury proceedings that they actually recommended a few dozen more people be charged, including Senator Lindsey Graham and former Georgia Senators Kelly Loeffler and David Perdue. As I said on the Cafe Insider this week, whatever you think of the Fani Willis case, the state case in Georgia, and how sprawling you think it is, and whatever you think of RICO, the fact that the special grand jury advocated for 40 some odd people to be in the crosshairs of the prosecutors, and Fani Willis and her team only went with 19 shows, whether you like it or not, that there was some amount of restraint.

I also think that given the timing here and a trial potentially coming up soon with respect to at least two defendants and the amount of deliberations taken place so far, in answer to your question, I guess it’s possible that some of those other folks will still be charged, but it seems unlikely. This doesn’t seem to be the kind of case where there’s going to be waves of indictment or continuing superseding indictments that add more and more people. Probably the most important reason I think there’s not going to be additional charges against those other people is unlike before when the public and the press were trying to get unsealed, he special grand jury report at this juncture after the filing of the indictment against the 19, Fani Willis did not object, which to me, is a very powerful sign that the 19 will remain 19. I will be right back with my conversation with Malcolm Gladwell.

THE INTERVIEW

Preet Bharara:

Malcolm Gladwell became a household name about 20 years ago after the publication of his first book, The Tipping Point. His most recent project is the new season of his podcast, Revisionist History. Malcolm Gladwell, welcome to the show.

Malcolm Gladwell:

Thank you. I’m delighted to be invited.

Preet Bharara:

It’s a delight for me for a lot of reasons, among them, I’ve been a fan of yours for a long time. As I sit here in my basement office in Westchester, several of your books, not all of them, but several of your books are on my bookshelf, so it’s a real treat to get to talk to you. You have a new season of Revisionist History your podcast out. Before we get to that, we haven’t had a chance to discuss the craft of podcasts yet. What was appealing to you about doing podcasts in the first place? What do you like about podcasting versus the writing of books?

Malcolm Gladwell:

Well, it’s a very different medium. It’s a lot more emotional. It’s a better storytelling. It’s a medium. It’s very difficult to talk about numbers and do analytical work in audio, but it is a lot easier to tell an emotional story. So I like being able to tell both kinds of stories.

Preet Bharara:

But your books tell stories-

Malcolm Gladwell:

They do, but there’s-

Preet Bharara:

… fairly well, too.

Malcolm Gladwell:

It’s very hard to do a podcast about tax policy, for example. People get lost in the numbers. The minute you do it, if I say a number, it just doesn’t have the same meaning as when I show you a number, where you read a number. But on the flip side, there’s a freedom and openness that comes with audio that you can tell stories. People, I think are a lot more accepting and forgiving and open to ideas, to emotions, to being moved to being all that’s very appealing to someone who has been operating in the world of print that’s in their life.

Preet Bharara:

When someone comes up to you who’s a fan in the airport or on the street or at a restaurant, can you tell before they’ve opened their mouth if they’re a fan of your books or a fan of your podcast?

Malcolm Gladwell:

No. Well, my-

Preet Bharara:

There’s no tell-tale sign?

Malcolm Gladwell:

There’s no tell-tale sign. You hear one of three things you hear, “I like your books,” and then you say, “Oh, you should listen to my podcast.” “You have a podcast?” Or you hear-

Preet Bharara:

I get that too.

Malcolm Gladwell:

Yes, you get that too, or there’s a reverse. “I like your podcast. “Oh, what are you working on now, another podcast?” “No, a book.” “You write books?” There’s that. Then the third one is where I get confused for someone else.

Preet Bharara:

Who do you get confused for?

Malcolm Gladwell:

I get confused. For Steve Levitt of Freakonomics fame. It’s not as bad as it used to be.

Preet Bharara:

Interesting.

Malcolm Gladwell:

It used to be constant. Everyone thought I wrote Freakonomics.

Preet Bharara:

Did he have the same thing?

Malcolm Gladwell:

I don’t know. I’ve discussed this with him, but I don’t think so. I think it’s because I blurbed it and they put the blurb on the front cover, and so-

Preet Bharara:

So they think that’s you.

Malcolm Gladwell:

You people saw Freakonomics and they saw my name and they thought, “Oh, he wrote it.”

Preet Bharara:

Right.

Malcolm Gladwell:

But I’ve never correct people when they say that. I was like, “I’m fine with that.” It’s like if you write fiction and someone confuses you with Tolstoy, you don’t correct them.

Preet Bharara:

Fair point. So with respect to the podcast, how do you choose your topics?

Malcolm Gladwell:

Sometimes desperation, sometimes. But sometimes I get interested in something-

Preet Bharara:

You have a deadline and there’s a new [inaudible 00:10:35] coming up?

Malcolm Gladwell:

No, no. So this one, this miniseries, which was just coming out on guns, what happened was you would notice ’cause you’re a lawyer, I didn’t notice, I’m not a lawyer, I didn’t realize you could listen to Supreme Court oral arguments. I didn’t realize they were taped, and you just go to a website and you can hear whatever ones you want. So this was this great discovery, and this is actually the fun thing about my job. I’m constantly discovering things that I didn’t know, so I didn’t notice. So then I just started listening to them, and that’s where episode, the second episode really, comes out of listening to the nutso oral arguments in the Bruen case, the big gun control case, the court-

Preet Bharara:

Yeah. So before we get into that, we should tell people, or you should tell people more specifically what this miniseries is about.

Malcolm Gladwell:

It’s about guns. Well, I was going to answer in this roundabout way, ’cause I only answer things in a roundabout way. You’re asking me where the ideas-

Preet Bharara:

That’s the beauty of the podcast.

Malcolm Gladwell:

Yes, that’s right, where the ideas come from. So the idea for this series came ’cause I happened to hear the tape of the oral arguments in this landmark gun control case that the court ruled on last year. I was like, “Wait, this is strange. What are they talking about?” So I started digging into guns. I hadn’t really thought much about guns. I never really written about guns. Then I got really interested in trauma surgeons and just started hanging out with trauma surgeons. Then I listened to more Supreme Court oral arguments and then it just grew from there. Then I was reading these criminology papers and I’ve heard about this crazy case in Alabama, and so I go to Alabama. That’s how it works. You start with a little seed, and it takes you in all kinds of directions.

Preet Bharara:

Before we get into the new miniseries, which is fascinating, and I listened to the first few episodes, could you explain to people why your podcast is called Revisionist History and what the focus is?

Malcolm Gladwell:

Well, it’s a joke in the sense that the term revisionist history is generally used as a form of disparagement. Someone is engaging in revisionist history means someone’s going back and making up a story that isn’t true or isn’t entirely accurate. I love the idea of taking a term of disparagement and wearing it proudly. That struck me as being funny. I do like the idea of the premise of the show was that we would just go back and revisit things that people thought they already knew or hadn’t heard of before. So it was the loosest possible rubric for me to explore whatever it was that I wanted to explore. Also, I was told, someone told me a long time ago that if you put the word history in your title, you’ll get a lot more listeners.

Preet Bharara:

I should do History Stay Tuned. Stay History Tuned.

Malcolm Gladwell:

Yes, that’s right.

Preet Bharara:

What I think is interesting about the premise in a way is that, as you say in the podcast and in the preamble, that you look at things that are overlooked. Your contention is often, and I think it’s true in this miniseries, that the original writing of history is the one that’s false, and the looking back maybe can make it more accurate and bring it into sharper and more correct focus. Fair?

Malcolm Gladwell:

Yes. I think that’s very true. I also think the other premise is that there’s a lot of bad history out there. All historians know this, that’s why the profession exists. But it is astonishing how much of what we believe upon close examination turns out not to be entirely true. As a journalist, it took me… I remember when I started at The Washington Post years ago, about five years in, I realized, “Oh, wait a minute. Most of the things that all of us think are true are not.” It’s like, it’s astonishing. It’s why as a journalist, you always try and double or triple check every fact. You don’t do that when you start out ’cause you think, “Oh, someone told me, it must be true.” Then you realize about five years in, “No, no, no. People just make stuff up without realizing they’re making stuff up.” You have to check everything.

Preet Bharara:

Wait, so the earth is flat?

Malcolm Gladwell:

Yeah, that’s right. But only two professions know this, learn this painfully, lawyers and journalists. Everyone else is allowed to bathe in the sea of blissful ignorance about just how wrong most people are.

Preet Bharara:

I would like to thank my primary care physician also. So let’s start with this series and the first episode. Tell folks who the individual is that you focus on in Episode 1 and what possible relevance a figure from the 1600s before the United States was constituted, before there was a Constitution, before there was a Second Amendment, what relevance that individual could have to gun law in the U.S. in modern times?

Malcolm Gladwell:

Good question, and I’m laughing. It’s not actually funny. It’s deeply problematic. So I’m an outsider, a lame, I don’t know anything about the Second Amendment or anything. So I start reading all these Second Amendment cases and listening to, like I said, oral arguments of the Supreme Court. I keep hearing this mention of what’s called The Knight’s Case about a guy named John Knight, who is a 17th century merchant in Bristol in England, who runs afoul of the law. He’s basically a troublemaker, and he goes into a church and with a gun in his hand, and he makes all kinds of suss to denounce the king for who he thinks is too pro-Catholic. The king files charges against him and Knight is acquitted. Now, all this is taking place in Bristol, in England, in 17th century.

For some reason, this case keeps popping up among defenders of the Second Amendment as deeply relevant to our contemporary understanding of what exactly is or is not permitted by the Second Amendment when it comes to using guns in America. Now, the specifics of this, you should listen to the podcast, I urge people to listen. But the broader point is really important here, which is that the defense of the Second Amendment has gotten so hilariously and absurdly arcane, they have reached into the 17th century Bristol to try and find someone to justify the increasingly elaborate and ridiculous arguments that they’re making on behalf of gun ownership.

What’s even more hilarious is that this history that they have chosen to spotlight as being the basis for their arguments with the Second Amendment turns out to be totally wrong. So I keep hearing this guy’s case. So I just call up actual English historians of the period and say, “Tell me about this dude John Knight.” First of all, they roll their eyes and the second thing they say is, “Oh, my God, you Americans are so obsessed with this man,” and then they tell you the real story of John Knight, which bears no resemblance to the story that’s being told in Supreme Court briefs and Supreme Court opinions. So it’s like it’s this strange… it’s what got me going in this series, but just this understanding that, is this for real? Are we really having a debate about guns in this country that hinges on a complete misinterpretation of the solitary act of an obscure 17th century merchant in Bristol, England? That’s where we are right now.

Preet Bharara:

Did he even have a gun?

Malcolm Gladwell:

He had a weapon, which he checks, this is the other fact that doesn’t come out in the right-wing interpretation, he actually checks his weapon at the door of the church that he enters. But that fact is completely left out of the conservative retelling of his story. So they would like to say that he took a weapon into the church and got acquitted, which means that carrying weapons publicly was something that the British were fine with. In fact, consistent with gun control laws of that era, he checks his weapon before he enters the church. So it’s absurd that we’re having-

Preet Bharara:

So people understand more directly the relevance that some people claim The John Knight Case has is that this is a person who was frustrated by a gun regulation and was acquitted, and so his vindication is some kind of indication of the history and tradition of the bearing of arms as being something accepted and respected, and that is sacrosanct in Anglo-American law. Is that the nut of it?

Malcolm Gladwell:

Correct. That is the nut of it. They have found a single case where a guy happened to be acquitted on a weapons charge in 17th century England and said, “Look, this means that the English common law heritage, which was the heritage that the founders were deeply respectful of, was one that was fine with people using weapons in public.” This is nonsensical on so many levels, but that’s, it’s the game they’re playing here.

Preet Bharara:

Well, the one way in which, I’m not an expert on John Knight, but the one way in which it’s nonsensical is the fact of the case makes clear that there was a regulation, right?

Malcolm Gladwell:

Yes. Yes. Not only that, the only reason he had a weapon, he goes to this church, this is on the outskirts of Bristol, had he entered Bristol with his weapon, he would’ve been required to give the weapon up ’cause you couldn’t… In those years, the weapons ordinances in Bristol were such that you were not allowed to bring a weapon into the city center. But as it was, he goes to the church and still checks his weapon ’cause that was the practice when you go to a church. The John Knight story is actually a story about the prevalence of gun control, weapons control norms in 17th century England. All of that is left out of these kinds of contemporary right-wing reinterpretations. Instead, what you get is this misreading of the historical record.

Preet Bharara:

In fact, the relevant regulation called the Statute of Northhampton comes up in that very recent gun case that you mentioned, Bruen, about the circumstances under which you can obtain and carry a firearm in New York. Can you explain, based on your multiple listenings to that oral argument, how it comes up and how it comes up with a straight face?

Malcolm Gladwell:

Well, it comes up because the court, as you know, is obsessed at the moment with this notion that the only way to interpret the meaning of the Constitution is to look for some kind of historical precedent. Their willingness to go way, way, way, way back in time to look for those precedents is extraordinary. So the court spends a huge amount of time talking about going back, I think as far as the 12th or 13th century in England, looking for clues as to what the English were thinking about when they thought about weapons. So the proponents of gun control said, “Well, if you want to play this game, we should talk about something called the Statute of Northampton, which is this law that was passed in England in the 12th century, 13th century, which very clearly says that you can’t go around, you can’t terrify the public by openly carrying weapons in public places. You’re not allowed to do that.” That’s like you’ve got people who ride into cities on backs of horses can’t be wielding any kind of dangerous weapon.

So that argument was made, and it’s a very compelling one. If the court says, “look, we’re obsessed with the historical record,” and you come out with a statute in English common law, which very clearly establishes strict standards of gun control. It seems like check, right?” So the conservatives then responded, “Aha. But we think that by the 17th century, the English had turned their backs on the statue of Northampton, and why do we think that? Because of this man, John Knight, ’cause John Knight got acquitted, right? John Knight was charged on the Statue of Northampton and got acquitted.” So it’s their response to this. But all of this starts because people like Alito and Justice Thomas are so obsessed with finding clues to the way we should behave in 2023 in the 12th and 13th century.

Preet Bharara:

I’ll be right back with Malcolm Gladwell after this. You use a phrase in the podcast, which I’ve heard other legal experts use as well. I may have used it when it comes to history and tradition as a foundation for modern case law, and I think the term is cherry-picking.

Malcolm Gladwell:

Yeah.

Preet Bharara:

Other experts you’ve talked to agree with that?

Malcolm Gladwell:

Oh, yeah. There are two leading scholars of this period in English history that John Knight lived in, and I talked to them both, and both of them, there’s been a considerable amount of work in recent years on this one obscure character because he’s now become a important contemporary historical figure. There were these diaries by a prominent journalist of the era that were written in code and had been lying languishing in an archive for a couple of hundred years in London that were decoded. It turns out this guy, this journalist of the period had written extensively about John Knight. So all of a sudden, we know a ton about the man. So when you know the full context of his life and his history and his particular legal entanglement after that incident in the church, you realize that what the conservatives are doing, it’s a complete misrepresentation of history.

All of this, though, the broader point is what you were talking about, which is that if you are, as the court is, committed to using history as a guide, you can’t just wander through the history books and pluck out individual instance and say, “Aha, this proves what I need.” You have to do what a historian does, which is, you have to look at the big picture and weigh the preponderance of the evidence and make a reasonable judgment. The argument, one of the strongest arguments that I’ve heard against the current propensity of the court for these historical investigations is they’re not historians. They don’t behave like historians. They don’t know what a historian does. They’re writing essentially really bad freshman year term papers and calling them Supreme Court opinions. By the way, the Bruen case reads like a bad freshman year term paper. I didn’t do it, but one idea I had for a podcast was to submit the Bruen case to professors of English history and asked them to grade it.

Preet Bharara:

They would’ve said, “This is ChatGPT, isn’t it?”

Malcolm Gladwell:

Yeah, that’s right. That’s right.

Preet Bharara:

So it seems, I’m going to apologize sincerely in advance for what I’m about to say, but in a way, are these conservative justices when it comes to guns and the focus on history and tradition, are they engaged in revisionist history?

Malcolm Gladwell:

I think they are. I think that’s a good use of… It’s so funny to me that the affection that this small group of conservative justices have for going deep into the hundreds and hundreds of years into the historical archive, I just find it so weird. Where does it come from?

Preet Bharara:

Well, you point out as a close reader of the Bruton case, how many pages the majority opinion devotes to different periods of history.

Malcolm Gladwell:

Oh, it’s pages and pages and pages and pages, takes them… you got to read for half an hour before they even get to the 19th century, let alone the 20th or the 21st. It’s nuts. It’s like, I don’t even know. It’s like a fetish. It’s like a weird intellectual fetish where you’re hung up on… it’s like meeting somebody who’s obsessed with some weird medieval ritual and has a big coat of arms on their wall. It’s like that level of endeavor.

Preet Bharara:

Right, but gets the battle wrong.

Malcolm Gladwell:

And gets the battle wrong.

Preet Bharara:

But you say, I don’t want to give too much away, but you say at the end of the episode, quote, “I realized that I had fallen into the same trap that we’ve all fallen into in this country when it comes to gun violence. We’re talking about the wrong things, telling irrelevant stories. We’ve all had it with John Knight,” end quote.

Malcolm Gladwell:

Yeah. Yeah, ’cause then in subsequent episodes, I try and I start to investigate that notion that we’re talking about the wrong things. I don’t spend a lot of time on it, but a simple example would be mass shootings in this country, although a insanely tragic occurrence are a tiny, tiny, tiny fraction of the overall death toll from homicides, it’s probably 2% of the homicides in any given year, the idea that we spend 75% of our time talking about a problem that represents 2% of the death toll and disproportionately way less time talking about 98% of the problem is weird to me. It’s like that’s weird. Gun violence in this country is, it’s basically kids shooting each other with handguns, with illegal handguns over some kind of dispute over personal dispute drugs, while drunk, while high, that’s what the gun problem is in this country. It’s weird to me that that’s not where the focus is.

Preet Bharara:

Well, you focus on something in the second episode of the miniseries. It’s a particular historical artifact that for young people listening will seem as distant in the past as John Knight, and it’s the Western TV series Gunsmoke. Could you remind folks what Gunsmoke was? By the way, I learned something in particular that I had not appreciated how much of television in the middle of the last century was westerns? It’s like every show. Oh, my God.

Malcolm Gladwell:

It’s basically all that was on television, every show. These westerns told a story of which Gunsmoke was the most popular and the most enduring, it’s the most popular show on television for years and it runs for decades.

Preet Bharara:

They made a lot of episodes. It’s interesting, one of the bases for the writer’s strike is that now series that are streaming on Netflix or some other streaming service, they make six episodes or eight episodes. I learned from your podcast separate, and apart from what I learned about guns and the history of guns and enforcement of gun laws is, I think Gunsmoke made like 39 episodes a year.

Malcolm Gladwell:

Unbelievable numbers.

Preet Bharara:

No TV show does that anymore. If you’re employed by a series, you can make a healthy, decent living because you have 39 episodes to write for as opposed to six.

Malcolm Gladwell:

Full-time job, yeah, yeah. Gunsmoke and all these other westerns dominate American mass media in the ’50s and ’60s, and they tell a story about the Wild West, which is that the Wild West was a lawless place where a man could only defend his family if he was willing to own and use a gun. That’s basically what a western is. The law doesn’t really exist. If you want to be safe, you have to be quick on the draw. Gunsmoke, which takes place in Dodge City, the legendary epicenter of the Wild, Wild West is a series in which every single episode involves at least one, if not more people getting killed in gun violence. As it turns out, this particular rendering of this slice of American history is totally false. Dodge City was briefly, for two years, a dangerous place.

Then they got an actual police force, an instituted gun control, and the murders stopped. In the Wild West in general, in these cattle towns, which are the source of so much of the narrative energy of westerns, these cattle towns typically had gun control laws in place, which were way stricter than anything in America today, that if you rode into Dodge City in 1875, you were required to check your revolver before you entered the town. You had to go to the police station or something, and you handed your gun in and they gave you a little check like a coat check, and then you went about your business. Then when you left, you picked up your gun. So these westerns have the real history of America’s experience with guns completely backwards. I tell the story of westerns because I’m trying to account for the fact that why is it that so many people in America continue to believe that the only way a human being an American can be safe is if they’re carrying a weapon? Where does this idea come from? I think the idea comes from westerns.

Preet Bharara:

Now, in fairness, unlike with John Knight, the Supreme Court in modern times in the Bruen case and otherwise does not cite to Gunsmoke.

Malcolm Gladwell:

No, they don’t cite, but-

Preet Bharara:

Okay.

Malcolm Gladwell:

But they implicitly do because in the oral arguments in the Bruen case, I played the tape of it in the episode, there’s this insane stretch where Alito and Kavanaugh are questioning New York State’s lawyer-

Preet Bharara:

Barbara Underwood.

Malcolm Gladwell:

… Barbara Underwood, and they’re basically talking about, they’re trying to get her to say, “Wait, wouldn’t everyone be a lot safer if people were allowed to carry guns on the subway?”

Samuel Alito:

There are a lot of armed people on the streets of New York and in the subways late at night right now, aren’t there?

Barbara Underwood:

I don’t know that there are a lot of armed people.

Samuel Alito:

No?

Malcolm Gladwell:

I just couldn’t get enough. I could not get enough of this exchange ’cause it’s so nuts. I lived in New York for 25 years, every single person who’s ever lived in New York knows that your number one nightmare is the idea that someone on the subway, in a subway car with you has a gun. Right?

Preet Bharara:

Well, now imagine everyone has a gun.

Malcolm Gladwell:

Yeah, and now imagine everyone has a gun. In another episode, I go and I go firing assault rifles in revolvers in the woods of North Carolina with this gun enthusiast, and one of the things you learn very quickly when you do that is, and what gun enthusiasts will tell you is that firing any gun accurately under the best of circumstances is really hard. But for people who aren’t familiar with guns on a moving subway car, when they’re scared out of their minds, to fire a gun accurately would be nearly impossible. So basically, if you want people to carry guns on the subway, you’re basically asking for a bloodbath.

The whole thing is nuts. So that here in the middle of this oral argument, you’ve got Alito and Kavanaugh basically saying, “Wouldn’t it be better if people could go on the A train when they come home from work and have their Glock in their back pocket?” This is the argument that is only possible by to maybe of someone who has never ridden the New York City subway. That’s what this is about. It’s like some crazy fantasy cooked up by someone who lives out in the suburbs and grew up watching Gunsmoke.

Preet Bharara:

What’s always strange about it is you can imagine a universe in which you don’t know anything about a particular city or the regulations and you pose the question, would crime go up or down where shootings go up or down, or homicides go up or down if fewer people had guns or if more people had guns? But then you have to look at the data, and there’s just this assertion of this theory of a good guy with a gun stops a bad guy with a gun without any look at any data at all. Right? It’s an analog to the selective cherry-picking of history.

You just make an assertion that you can actually test and see if it bears out. By the way, one way it bears out, as I’m sure people appreciate, there are many, many cities in the world outside of America where gun ownership is very low, and crime also is very low. You also point out, and I thank you for this, that this focus on the New York City subways as being like a violent Wild West, you point out and defend my city as being safer than most other cities in America.

Malcolm Gladwell:

Yeah. Yeah. The idea that Ron DeSantis gets away with claiming that New York City is a hotbed of… is Gomorrah, meanwhile, levels of gun violence in violent crime in Florida are way higher than New York state.

Preet Bharara:

Like Jacksonville.

Malcolm Gladwell:

Jacksonville is one of the most dangerous places in America. I don’t understand how he gets away with this. It’s so plainly ridiculous. One minute on Google will tell you that that’s a lie, and he just goes and… I don’t know. The whole thing’s nuts.

Preet Bharara:

What are some other things you focus on in the series? I want to get to some other issues with you.

Malcolm Gladwell:

Well, I’m really interested in, I have two episodes where I talk a lot about trauma surgery and ask this question. The homicide rate at any given time is a function of two things. One is the underlying level of violence, and two is how good medical care is. So you can imagine a universe where if everyone who is shot doesn’t get any healthcare at all, the homicide rate will be really high. But if on the contrary, everyone who’s shot is shot outside the front door of New York Presbyterian’s Trauma Center, the homicide rate would be really low ’cause it save most of the lives. So the question that I was trying to figure out is, which of those two things is more important in explaining the decline in violent crime in America over the last 25 years? Is the level of violence down or is the level of trauma care for gunshot victims way, way better? That turns out to be a really, really interesting question to try and get the answer to.

Preet Bharara:

It’s funny, it reminds me of something that a senior prosecutor told me when I was a junior prosecutor about the theory of jury selection for prosecutors, which was some version of, not everyone agrees with this, and some people might take offense at this, but the idea that there are certain professions that have people who are going to be by nature empathetic, sympathetic, forgiving, and they’re not the best people to have on your jury because they might be biased in favor of forgiveness, right? And your job is-

Malcolm Gladwell:

Yeah.

Preet Bharara:

… to prove the guilt of somebody. One of those professions was nurse people in a helping profession. This person said, with one exception, you get a nurse in the jury pool and on your jury in a gun case, and that’s a really good juror for you to have, particularly if it’s an emergency care nurse, because they’ve seen what guns do to people-

Malcolm Gladwell:

Oh, that’s interesting.

Preet Bharara:

… and to human bodies.

Malcolm Gladwell:

Yeah.

Preet Bharara:

Yeah.

Malcolm Gladwell:

That’s super interesting.

Preet Bharara:

What’s the RFK episode about?

Malcolm Gladwell:

Well, that’s the same episode. So I start with the story, I found a neurosurgeon who wrote this really brilliant paper trying to imagine what would’ve happened to RFK had he been assassinated today, how would his medical care have been different? Would he have survived? So I begin with that, but that’s a way into this broader question of what does it mean that huge numbers of people who would be dead 30 years ago are now alive in the wake of gun violence? How has that changed the way we argue about guns? The incredible fact, someone actually tried to calculate, if you keep levels of 1960s healthcare constant, then the homicide rate today would be something like three or four times higher. So we’d be looking at 75 to 80,000 homicide deaths in this country a year. If that were the case, I suspect we would have a very different argument about guns.

Preet Bharara:

Is the better statistic or metric that we should focus on shootings rather than homicides?

Malcolm Gladwell:

Yes.

Preet Bharara:

Because of this healthcare delta?

Malcolm Gladwell:

Yeah, but of course, we don’t measure shootings. So the only way you can measure shootings is if criminologists, I found one in, there’s a bunch of them enterprising criminologists around the country in Indianapolis, I think in Chicago, and who actually go and get the data directly from the police department and basically tabulate tabulate it themselves. But they would argue, yeah, what you really should be measuring is gunshots that hit a body. That’s what you should be measuring, and that removes the healthcare bias on the occasion. That will tell you whether your levels of violence are going up or down.

Preet Bharara:

Do you have a favorite book of your own?

Malcolm Gladwell:

Of my own?

Preet Bharara:

Yeah. Or do you love all your children and books equally?

Malcolm Gladwell:

I do not love them all equally, but I’m afraid to say which one I dislike the most.

Preet Bharara:

So I didn’t ask that. I saved you. I said, which one did you like the most? Is there one you like the most, and if so, what is it?

Malcolm Gladwell:

Well, I think I like The Bomber Mafia the most because it’s the least like the others, and it’s just a single narrative.

Preet Bharara:

Is it also that you’ve had less time to reflect on?

Malcolm Gladwell:

To reflect, ’cause it’s the most-

Preet Bharara:

I believe it’s your most recent book.

Malcolm Gladwell:

It is my most recent.

Preet Bharara:

2021?

Malcolm Gladwell:

Maybe. I don’t know, maybe that’s it. The real answer is the one I like the best is the one I’m working on at the moment. That’s always the case. The one you’re working on at that particular moment is your favorite.

Preet Bharara:

So I’m not going to ask you if this next book is your least favorite or not, but at least it’s a book that you have said you’d like to revise a little bit, and that’s The Tipping Point, which you wrote 23 years ago. You talked a bit favorably about broken windows theory, and that’s controversial, and it goes to this issue of crime management as well. You said a decade ago, quote, “I think I was too in love with the broken windows notion, but I think I was so enamored by the metaphorical simplicity of that idea that I overstated its importance,” end quote. So now it’s been another 10 years, and there’s been a lot of debate about this in the last three or four years in the U.S. What do you make of that?

Malcolm Gladwell:

Good question. I’m actually revising The Tipping Point as we speak, so it’s on my mind. I would say that yes, I think what I did is I misinterpreted the parts of the broken windows theory that are valid, and I confuse that with the way it was used by certain police departments around the country. So there is a kernel of broken windows theory, which has been subsequently richly supported by empirical research, and that is the most literal version of it. So there’s been this wonderful work in Philadelphia where they literally fix broken windows. They go to vacant lots, they clean them up, they renovate houses, they paint houses that need paint. What they’ve shown is that when you fix up a dilapidated block, the crime rates fall and not by a little, by a lot. So in that sense, broken windows, that idea that had been floated back then has been validated by empirical work and is probably a hugely underused crime fighting tool.

Improving the circumstances of people’s environment seems to have a profoundly deterrent effect on criminal activity. But I wasn’t talking about that in The Tipping Point. I got enamored with the use of that theory to justify a certain kind of aggressive policing, and I think that turned out to be do more harm than good. But in subsequent books, I returned to this question of, what does appropriately aggressive policing look like? I think I got a better, if you read my discussion of crime and policing in talking to strangers, for example, where I talk about hotspot policing, that’s a much more… There, I think we’re beginning to get a better understanding of if you want to use police to crack down on relatively small infractions in order to send a message, you have to use that kind of power incredibly selectively and with extraordinary discretion and under very well-controlled circumstances. It cannot be a broad brush. I think what you saw in many American cities was the indiscriminate use of that style of policing, and that was deeply problematic.

Preet Bharara:

you said at the beginning of this question that you’re going back and revising the book. Is there a new version?

Malcolm Gladwell:

There will be. It’ll be Tipping Point Part II.

Preet Bharara:

Is that because there’s an anniversary coming up, or is that-

Malcolm Gladwell:

Yes.

Preet Bharara:

… because you wanted to address this point?

Malcolm Gladwell:

No, actually, I don’t even think I’m going to address this book in round two-

Preet Bharara:

Okay.

Malcolm Gladwell:

… but there is a new version that’s much more about epidemics. I got really interested in the opioid epidemic and in… by the way, another subject, the most under-discussed subject in contemporary American life is the opioid crisis. I was as guilty of this as anyone. I never thought about it, talked about it much for years and years and years. We’re now up to 100,000 people in America dying every year from drug overdoses. How is this not the absolute top of everyone’s public policy agenda? It’s baffling to me. It’s just the strangest thing in the world. 100,000 people a year? We even had a war that had that many casualties since the second World War. Right? It’s crazy. But anyway, so those are the kinds of things [inaudible 00:45:06]

Preet Bharara:

So let’s pause on that. How do you explain that? I started to talk about it a lot towards the end of my tenure as U.S. Attorney when we weren’t anywhere near 100,000. But we had got to the point where I think it was more than gun deaths and auto deaths combined, which is-

Malcolm Gladwell:

And now it’s just nuts.

Preet Bharara:

… huge. We would do forums about it, and we would talk about, I’ve done an episode on the opioid crisis, but I think you’re right that given the magnitude of the problem, it’s not matched with the same amount of discussion. Do you have an explanation?

Malcolm Gladwell:

A good explanation? No.

Preet Bharara:

Or any? I don’t have an explanation.

Malcolm Gladwell:

No. I just think it’s because I just think that it’s further evidence of how disconnected the conversations we have as a society are from our actual problems. It would be one thing if it was a feature of every industrialized country, and then we could say, “Well, happens everywhere. Nothing much we can do about it, so we’ll go on with our lives.” It’s like we don’t talk a lot about the flu, and the flu takes out whatever, 20,000 people a year. So it’s that, but that’s not what it is at all. There are huge parts of the world that have no opioid crisis. There’s no opioid crisis in Italy or Portugal or Spain, or it’s a greatly diminished one in France. It’s like the Canadian one is probably the closest to America, and even that one is a fraction of the size. This is a homegrown American problem. So you would think it would obsess us, but I do not. I’m completely baffled as to why it’s not top of mind.

Preet Bharara:

Well, I think that’s a good topic for a miniseries.

Malcolm Gladwell:

It is. Yes. Yes, it is, well, or a book as it turns out-

Preet Bharara:

Or a book.

Malcolm Gladwell:

… that I’m working on.

Preet Bharara:

I want to ask you about another book that I loved of yours called Blink. Could you remind people or tell them for the first time what the basic premise of Blink is?

Malcolm Gladwell:

Well, Blink was a book that was interested in exploring how much influence our first impressions have both for good and ill. Although the book was one of those curious cases where when people read that book, they thought that I was maintaining that you should always trust your instinct. I thought I wrote a book that was about how your instincts betray you most of the time. So this is one of those cases where either I failed or my readers failed, probably the former. But I was just interested in just how much of the way we make sense of the world is based on these snap judgments. That struck me as being amazing and worthy of consideration.

Preet Bharara:

In an nod to you, I cite your book or used to cite your book among other things that I cited when I would give to junior prosecutors in the Southern District of New York the lecture on opening statements and how powerful it was and how important it is in some ways more than the summation, because it’s the first impression, and also how quickly a jury is going to look at the prosecutor who approaches the lectern and make a judgment very, very quickly about that person’s authenticity, credibility, maturity and everything else as a lesson to them to make sure that they’re buttoned up and prepared right from the outset. Is that a fair thing for me to tell them?

Malcolm Gladwell:

Oh, absolutely. The data on if you ask a class of students to do a teacher evaluation based on the first 15 seconds of their teacher’s appearance in their classroom, their evaluations of their professor are the same as they are at the end of the year. It’s like they don’t update it. They form an impression instantly of this dude who’s teaching them, and they don’t update it. That’s it.

Preet Bharara:

Right.

Malcolm Gladwell:

They’re done.

Preet Bharara:

Now, is that because they’re so good at making the initial assessment?

Malcolm Gladwell:

No.

Preet Bharara:

It doesn’t need to be updated, or they’re just biased by their first impression?

Malcolm Gladwell:

No. Some people might be good at their first impression. No, it’s just that the things that we use as the basis for those kinds of impressions are generated instantly and are based on the kinds of things you pick up right away, so how they’re dressed and how they look and how they sound and how they walk, and all those kinds of things really, really, really, really, really matter, and the nuances of their thinking don’t. There’s not a lot of room in our first impressions for consideration of these more subtle and longer term characteristics.

Preet Bharara:

Are you revisiting that book as well?

Malcolm Gladwell:

No, I think time’s running out. I’m 60. I don’t have time to rewrite everything.

Preet Bharara:

You’ve got decades to go. So I want to ask you a question that I ask many of the guests on the show, because it’s the issue that we’re focusing on sometimes to the exclusion of many, many other things, and that is AI, artificial intelligence. Do you have a view about, apart from how it’ll affect the legal profession, of how it might affect journalism, how it might affect academics, how it might affect our humanity generally?

Malcolm Gladwell:

Yeah. Well, do I know more about this than the average person? No. So I start by saying my view is not worth a lot, but I guess I would say that looking at it from the perspective of North America may be misleading, that imagine a farmer or a business person in a relatively impoverished part of the world who all of a sudden gets access to the same level of high-quality advice that we do, as a matter of course, just by looking on their phone. That’s great. The difference between a farmer who can be productive and a farmer who’s struggling to get by is very often access to a set of some knowledge about farming that’s highly specialized and expensive. Well, what if we made it free, essentially? Isn’t that a really, really, really good thing? We’ve suddenly made somebody a lot smarter. From that perspective, how much better is healthcare in an underserved part of the world if you have access to AI? It’s way better. Right? So probably that fact, I know there’s all kinds of downsides, but that upside seems to me so enormous that it should swamp every other consideration.

Preet Bharara:

So you’re more optimistic than pessimistic?

Malcolm Gladwell:

Yes, with the exception of the existential risk to all of humanity.

Preet Bharara:

The destruction of all of us.

Malcolm Gladwell:

Yes. That aside, once you put that aside, I am an optimist. Yes.

Preet Bharara:

Malcolm Gladwell, thank you so much for being on the show.

Malcolm Gladwell:

This was really fun. I really appreciate it. Thanks, Preet.

Preet Bharara:

My conversation with Malcolm Gladwell continues for members of the CAFE Insider Community. In the bonus for insiders, we discuss what it means to be theory rich.

Malcolm Gladwell:

Parents raising their children are, you come home, you’re exhausted, you’re overworked, you put your kid to bed. You observe behavioral patterns in your child. You don’t have any opportunity to compare that child against 1000 other similarly situated children and generate a theory about what effective parenting looks like. When would you do that?

Preet Bharara:

To try out the membership for just $1.00 For a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON

To end the show this week, I want to mention two stories of justice that have an interesting connection. One of the first stories that I tell in my book, Doing Justice concerns the wrongful conviction and eventual exoneration of a man named Eric Glisson and several others. In brief, Eric Glisson is from Soundview in the Bronx. In 1995, Glisson was charged with a murder of a cab driver named Baithe Diop, who was shot around the corner from Eric’s apartment. The NYPD also arrested five other people. They became known as the Bronx Six. Glisson received a prison sentence of 25 years to life. Fast-forward to 2012, had spent almost two decades at Sing Sing Prison. Glisson wrote to SDNY, professing his innocence. He said he was in prison for a crime he had not committed. Someone forwarded his message to one of our best investigators, John O’Malley.

John O’Malley was a former NYPD homicide detective, and he knew Bronx gang life like the back of his hand. By a stroke of wild luck, John remembered that a witness he had flipped a decade earlier had also confessed to murdering a cab driver. John brought in Margaret Garnet, then the chief of the Violent Crimes Unit in our office, and the two tracked down the witness who had previously confessed to O’Malley. It took some time, but 17 years after he went to prison, Glisson and other members of the Bronx Six were exonerated and set free. Why am I mentioning this story? Bear with me. My friend and former colleague, Westchester County District Attorney, Mimi Rocha, recently established a conviction review unit in her office. Just last week, DA Rocha announced that this unit had officially exonerated a man named Leonard Mack. Leonard was a Vietnam veteran who was convicted in 1976 of raping a teenage girl at gunpoint in the town of Greenburgh, New York.

Greenburgh Police had picked up Mack, a Black man, who was driving through the predominantly white neighborhood where the rape occurred and disregarded his alibi. He was the only Black man put in a police lineup, and officers allegedly used aggressive tactics including changing Mack’s clothes to coerce victim identification. Mack served seven-and-a-half years in prison for the crime, and he has carried the weight of his wrongful conviction for most of his life. Now, Rocha’s office, with the help of the Innocence Project, has been able to use new DNA data to conclusively determine that Mack had nothing to do with the crime. A habitual sex offender even confessed not long ago. So on September 5th, his 72nd birthday, Mack’s conviction was vacated. This is believed to be the oldest wrongful conviction case ever to be overturned by DNA evidence.

As Max said, after walking out of the Westchester County Courthouse, quote, “Now the truth has come to light, and I can finally breathe. I am finally free,” end quote. Justice can have a way of perpetuating itself across generations. Mack’s exoneration was accomplished in part by the efforts of a Greenburgh Police Department detective by the name of Daniel O’Malley, who happens to be the son of John O’Malley, the SDNY investigator responsible for Eric Glisson’s, exoneration. The knack for setting things right it seems is an O’Malley family tradition. Congratulations to Leonard Mack. I also want to commend Detective O’Malley, District Attorney Rocha, and everyone else who has helped to exonerate wrongly convicted individuals. Let’s all aspire to build a legacy of righting and justice even against all odds.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Malcolm Gladwell. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-247-7338. That’s 669-24-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 senior producers are Adam Waller and Matthew Billy. The CAFE team is Noa Azulai, David Kurlander, Nat Weiner, Jake Kaplan, Namita Shah, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay tuned.