Preet Bharara’s new podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts. 

Episode 2: Civil Rights and Wrongs under Jeff Sessions (with Vanita Gupta)

Preet Bharara: Vanita Gupta, very good of you to join us on Stay Tuned.

Vanita Gupta: Great to be here.

Preet Bharara: So, let’s get into what you’ve been doing. How would you describe with the mission of the Civil Rights Division has been in recent American history?

Vanita Gupta: Well, I think since it’s founding, actually, in 1957, the Civil Rights Division of the Justice Department has come to be the part of the Justice Department that I think really is its conscious in a lot of ways. And the work it’s done for voting rights, for criminal justice reform, policing, LGBT rights, you name it, has often been really upstream. And it’s a pretty unusual part of the Justice Department. It’s the one part of the Justice Department that is about affirmative litigation and enforcement. It’s played an incredibly important role, which is why what’s happening now at the Justice Department is so deeply distressing.

Preet Bharara: Does the Civil Rights Division change depending on who’s the President of the United States, and should it?

Vanita Gupta: Well, technically, it should only change insofar as there are a change of priorities, because every administration brings its own priorities. But there are close to 700 career employees at the Civil Rights Division who day in, day out have a law enforcement job. It’s to enforce the civil rights laws that Congress has given the Justice Department to enforce. And note that the division came out in a time when states were resisting equal enforcement of laws. There were people dying, African Americans dying, who were trying to exercise their right to vote. There were tremendous barriers that had been erected throughout our history that prevented the full integration of all communities in this country. And the Civil Rights Division’s mission really is to ensure that the most vulnerable and marginalized among us have their civil rights enforced. And what gets me, and what galls me, really, is that I remember I had an oversight hearing, I had to appear before Congress. And the now Attorney General, but then Senator Sessions looked at me in the eye and accused me in a very kind of derogatory tone of being an aggressive civil rights lawyer. I wear that with – as a badge of honor. And I think that it is important for the head of a component at the Justice Department to be aggressive about the laws that we are enforcing. I can’t imagine – and tell me, Preet, if you’ve ever been accused of being, in a derogatory way, an aggressive criminal prosecutor, when frankly, that is often heralded. Although maybe with you, that may be slightly different.

Preet Bharara: Actually, in fact, you mention it, I had a conversation with Jeff Sessions directly on the day that Donald Trump initially asked me to stay on. And literally, Jeff Sessions said to me, “You’re an aggressive prosecutor, and I like that.”

Jeff Sessions is taking us back in years on so many issues on civil rights. He has a decidedly anti-civil rights agenda.

Vanita Gupta: There you go.

Preet Bharara: So, in my case, it was meant, I think, in a nice way. Although that didn’t last, obviously.

Vanita Gupta: Well, that didn’t, but that is the double standard, is that somehow, being an aggressive civil rights lawyer and being the head of the Civil Rights Division are things that are frowned upon, when actually, shouldn’t this country have a person who’s heading up that component who believes that the law should be enforced aggressively, particularly ones that are aimed at ensuring that the more disadvantaged or marginalized communities in our country have their rights protected? That’s exactly the kind of person I would think the Justice Department wants at the helm. And clearly now, Jeff Sessions is taking us back in years on so many issues on civil rights. He has a decidedly anti-civil rights agenda. You know, none of it surprises me, given his tone and tenor as a senator. But it’s a very different change.

Preet Bharara: Would you say he’s aggressively anti-civil rights, or just not aggressive in favor of it enough?

Vanita Gupta: I would say he’s aggressively anti-civil rights.

Preet Bharara: In what way do you think he’s the most aggressive anti-civil rights?

Vanita Gupta: You know, I don’t think that there’s only one. I mean, if you look multiple voting rights cases, but one in particular, a challenge to Texas’s voter ID law, where the career lawyers had spent months and months in trials, hearings, years prosecuting these cases, establishing that Texas had actually engaged in intentional racial discrimination in enacting its voter ID law. And actually, numerous federal courts in one of the most conservative judicial circuits, the 5^th Circuit, vindicated that position. And one of the first actions that the attorney general took was to withdraw that claim and reverse this longstanding position. And he did it in LGBT rights cases. He’s done it in taking and reversing Holder’s Smart on Crime memo. So, on criminal justice reform, LGBT rights, voting rights – it isn’t just that he’s kind of being passive about the enforcement about these laws. It’s that he is actually trying to turn the clock back on a lot of the progress that we’ve made.

Preet Bharara: I’m not sure if everyone appreciates that there are 700 career employees at the Civil Rights Division. 380-some odd attorneys in the Civil Rights Division, which, by the way, is a lot larger than even my own office, which was a gigantic United States attorney’s office. We only had 220 attorneys. How do you think it feels for the career folks in the Civil Rights Division, having heard you get reprimanded for being an aggressive civil rights lawyer, now he’s their boss?

Vanita Gupta: I think that they are likely right now at this point, nine months in, asking themselves some serious questions. Is it a form of resistance to stay in their jobs and to do what they can using the power? And it’s an incredible power that you have, being at the Justice Department, as you know – to do what you can, or at some point, does it just become too difficult to live with yourself and work for an administration that is anti-civil rights and is preventing your work from seeing the light of day? This is a lot of what happens with the division, is the career lawyers are gonna try to continue to pursue their cases. But memos are gonna get stuck in the front office. Positions that have been long advocated are gonna get reversed. They’re gonna start to figure out how to put people in these positions who don’t actually believe in civil rights enforcement. So, I suspect that it’s a pretty demoralizing time right now to be at the division, and that folks are asking themselves some pretty hard questions.

Preet Bharara: But can I separate out two things?

Vanita Gupta: Yeah.

Preet Bharara: One is, I think you would agree that it’s appropriate when a new administration comes in to have its own priorities.

Vanita Gupta: Of course.

Preet Bharara: Law enforcement priorities.

Vanita Gupta: Yup.

Preet Bharara: It’s quite a different thing to decide not to enforce civil rights law as written. So, do you think it’s appropriate for people in the Civil Rights Division, who are career lawyers and are supposed to do their jobs, to resist in some way those priorities? Is that right?

Vanita Gupta: I think it’s a really difficult question, right? Like, for you and I, we are on the outside, and we can – we know what our values are. We know what animated us to do the work that we did. And so, it’s easy for me to sit on the outside and say, gosh, how can you kind of continue to work for this administration, given how anti-civil rights they are? But at the same time, a lot of these folks, they have clients. They are in communities that they’ve been in for a long time, and they don’t want to abandon that. But I think it’s gonna be a highly personal decision for every career lawyer and employee to make a decision for themselves about how much can they actually get done? If they’re able to continue to do some of their good work, then my hope is that they’re gonna stay.

Preet Bharara: But what’s the point in leaving – just to play devil’s advocate for a moment, what’s the point in leaving if you care about the issue and you have some autonomy on your aggressive docket of civil rights cases to leave and let someone else, presumably who doesn’t care as much, come in? Why isn’t your advice to everyone stay, stay, stay?

Vanita Gupta: Now, look. If the question is, there are gonna be some sections in the Civil Rights Division that I am hoping are gonna be largely untouched, and people – these lawyers and employees are gonna continue to be able to do what they want to do.

Does it just become too difficult to live with yourself and work for an administration that is anti-civil rights and is preventing your work from seeing the light of day?

Preet Bharara: Which areas do you think those are?

Vanita Gupta: My hope is that that’s in the area of disability rights, that some of the educational opportunities work, although even a lot of their work now is getting stymied.

Preet Bharara: So, for some reason, you think disability rights issues are less politicized and there’s more –

Vanita Gupta: No, it’s not that. It’s that in the sections where the cases are more about individuals rather than systemic reform, there’s gonna be more of an ability to enforce federal civil rights laws for individuals. The real pocket of resistance that the attorney general is showing on civil rights is about anything related to systemic reform.

Preet Bharara: But do you agree he has the authority to do that? That’s more about a priority rather enforcing a particular statue that’s enacted.

Vanita Gupta: So, in that instance, yes, it’s a priority. But on the Civil Rights Division’s work, where Congress in ’94, after Rodney King was beaten in the streets of Los Angeles – and we all know the history and story of what happened in Los Angeles there with the LAPD. Congress enacted a statue that told the Justice Department—that gave it a legal mandate—to investigate patterns and practices of unconstitutional policing. And then when found, if found, to fix them. Sessions is basically walking away from that legal responsibility. I have no doubt in my mind that he would love to just throw out that statue altogether. That is actually an abdication of a legal responsibility that goes far beyond priorities.

Preet Bharara: I want to ask a couple of questions about the NFL protest and various athletes taking a knee during the performance of the National Anthem. If you were in the NFL, would you be taking a knee?

Vanita Gupta: Yes, I would be taking a knee. We’ve got a huge problem with police violence, and the sense that there is no justice when there are police killings. And there are a lot of people in this country that are trying to grapple with where the solutions are gonna come, and there’s a lot of anger and pain. And you know this and I know this from cases that we’ve both been involved in. These are really serious issues for this country. And you have athletes that have, just like many others in the country, have been exercising their right to protest this way. The bigger question is, is it appropriate for the president to insert himself through tweets and criticize these players, and call them fireable offenses for the fact that they’re exercising their First Amendment rights? And calls them SOBs on the stage on Friday. I mean, he has created this. And I think it is totally appropriate for these athletes, for the NFL, for the NBA to react in response. I mean, this is again – he created this whole issue by inserting himself into this debate –

Preet Bharara: I’m sorry, but he didn’t –

Vanita Gupta: So, we shouldn’t be surprised –

Preet Bharara: In fairness, the president didn’t create the issue of police shootings and bad policing.

Vanita Gupta: No, no, no, that’s – yeah. I’m talking about creating the whole – the last weekend that prompted these athletes and the associations to speak out. I am proud there’s a long and storied history of athletes taking a knee and protesting, and it’s been part of the change in progress in this country. But I want to remind people that just four weeks ago, he pardoned Arpaio, and now he’s criticizing black athletes for exercising their First Amendment rights.

Preet Bharara: Well, he’s said more negative things about popular black athletes in this country than he ever has about Vladimir Putin, or –

Vanita Gupta: Or the neo-Nazis that marched in Charlottesville. This is not a time that is normal, and it is not a time when staying in one’s lane and kind of keeping your blinders on and moving straight and kind of keeping to your business as usual is feasible for a lot of folks. I mean, a lot of us who love this country deeply don’t feel like there’s any choice, or that this kind of ability to sit on the sidelines and just kind of keep in your swim lane. These folks have huge platforms, and I appreciate that they’re using them to make important points.

Bharara: If you were in the NFL, would you be taking a knee?

Gupta: Yes, I would be taking a knee.

Preet Bharara: There’s an interesting question, right? It has often been the case that people don’t like other people’s methods, and there are some people who say, “I’m with you, but we’ve got to go a little more slowly.” And some people say, “I’m with you, but we gotta go a lot more aggressively, and even maybe militaristically.” And I thought I’d just read to you a passage from what I think is one of the best pieces of writing in the history of the English language, and that’s Martin Luther King’s letter from Birmingham Jail, written from a jail in 1963. And Dr. King wrote, “I must confess that over the past few years, I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace, which is the absence of tension, to a positive peace, which is the presence of justice; who constantly says, ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action.’” That’s been a basic and fundamental question in the quest for justice and equality going back to the beginning of time, has it not?

Vanita Gupta: Yeah. I mean, I love that piece and think it’s so important, because this work and the progress in this country has always involved a level of disruption and a level of courage on the part of individuals who were willing to take the criticism and to take the heat, and to doing it strategically, of course. But this whole notion that we can kind of mythologize and have MLK Day once a year, and celebrate all of that while not recognizing actually what it took and how dirty that progress and how messy it was to be able to achieve it, is something that we’re seeing play itself out now. When I – after Charlottesville, there were a lot of civil rights leaders who were part of the leadership conference coalition were speaking out, not about white supremacy and the Klan as being something that we need to be mindful of, but actually going beyond that and saying, connect the dots, people. You can’t just issue statements – I mean, forget the fact that the president couldn’t even issue a statement. But with the others – a lot of others folks in elected office were issuing very profound, important statements condemning the violence and the racial hatred that was on display in Charlottesville, without recognizing that the very policies around voter suppression laws that they’ve been enforcing, where federal courts over and over again are finding that states have been engaging in intentional racial discrimination to prevent African Americans and Latinos from voting – that these policies are actually a part of a white supremacist agenda. And it makes people feel very uncomfortable. It sounds like these civil rights lawyers that are connecting these dots are somehow being radical or fringe, when actually, we’ve got to understand how these things are actually connected to very real policies that are getting enacted today. Our criminal justice system in a lot of ways and the turn back of the clock on reform is a part of this too. And so, I know it’s uncomfortable for folks to have those dots connected, but at the end of the day, we’ve got to be about more than just words. We’ve got to be about action. And different people, there’s gonna be different lines that people feel like they’re crossing in order to speak those actions.

Preet Bharara: Let’s talk about policing and the unfortunate and all too frequent phenomenon of a police officer somewhere shooting an unarmed black kid. You and I have had a lot of conversations about this, and we’ve done a lot of work in this area, and it is incredibly frustrating. And people have been angry at me, and I know people have been angry at you. And you’re someone whose whole life has been dedicated to making sure that policing is done in a constitutional way and that everyone is treated equally. But what do you have to say to those folks?

Vanita Gupta: Those cases are the most painful. And when I look back at my time at the Justice Department, I would say that those cases above all really represent to me the failure of the law and of the courts to provide justice. Too many times during the course of my tenure, I – we had to decline charges in cases where a shooting absolutely should not have happened. But the law would not allow for there to be a prosecution. And you look at the Philando Castile case out of Minnesota involving an African American man who was seated in a car with his girlfriend next to him and a child behind, a four-year-old kid, and the girlfriend caught this all on video. Philando Castile was stopped at a traffic stop, did everything to comply. Had been stopped, I think, something like – I’m gonna get this wrong, but something like 47 times in the last three years. He knew what was at stake in being a black man at a traffic stop. He was trying to do everything he could to comply, and was reaching for his driver’s license, and got shot and killed. All of this caught on video. And there was an acquittal in that case that I think was a deep reminder of how infused in our culture the criminalization of black men is, and how much of a role that that can play in jury outcomes. And prosecutors, federal prosecutors – the federal prosecutors in the Civil Rights Division who do this work are some of the most mission-driven, impassioned prosecutors, who are trying to seek justice in these cases, but know through sheer experience of trying these cases and losing them over and over again, that the bar is so much higher to obtain a conviction in a police shooting case than in many others because of the cultural assumptions that exist in everyday people, like you and me, and who are serving on juries. And so, it isn’t just the limitation of the law. These prosecutors know what it’s like to actually bring cases where there’s incontrovertible evidence and to lose. And of course, they’re thinking when they can bring cases and get justice. Right now, there is a real sense for very good reason that the shooting and killing of an unarmed black man at the hands of the police will bring no justice. I, though, do also know from the work that we – that the Justice Department was able to do quite importantly on the pattern and practice systemic investigations of police departments, where training and accountability systems can be so abject or inept that they are not only – they’re failing communities and they’re failing officers, that we can’t lose sight of the focus on systemic reform, even as people are focused on the lack of individual accountability. Because in a lot of ways, we want there to never be these incidents to begin with. And you need training. You need accountability systems. You need hiring systems in place. You need police departments that are kind of set up and equipped to at least do everything they can to advocate and promote constitutional policing. And in the police departments where we ended up making very serious findings, those things had totally failed. And those are really important to any kind of prevention of these kinds of terrible incidents to begin with. And that’s where the Justice Department right now seems to be – have wiped its hands clean of any responsibility to really deal with those issues.

Right now, there is a real sense for very good reason that the shooting and killing of an unarmed black man at the hands of the police will bring no justice.

Preet Bharara: Look it’s interesting because there are other areas where there’s excessive use of force and bad conduct on the part of law enforcement that in my experience has been easier to address. And the example I’m thinking of is excessive violence in some of our jails. I think one of the worst places on Earth is a jail called Rikers Island, which is in the city of New York where you and I got to work together to address an issue of unbelievable violence that was unnecessary on the part of corrections officers towards inmates and in particular—the cases that we bought—often juvenile inmates and I wanted to thank you on air for being a fighter for those cases. And people may not appreciate this, but we tried to operate in a completely sovereign and independent way in the US Attorney’s office for the Southern District of New York. We were required, and you know I chafed at this—

Vanita Gupta: Oh yes, I know.

Preet Bharara: We were required to get the approval before bringing a certain kind of civil rights case from the Justice Department in the Civil Rights Division that you led at the time when we were deciding what to do on the Rikers Island case and I just wanted to thank you in front of everyone for cutting through a lot of bureaucracy, without going through the usual 53 cycles of bureaucracy. So I want to thank you for that.

Vanita Gupta: That’s the part of me that apparently was too aggressive for Jeff Sessions. So there you go.

Preet Bharara: That’s the part of you I liked very much. And I think what people may not appreciate is how much support you have from people on the other side of the ideological divide, so to speak. There are some people who think that if you’re on one side, you can’t even have friends who are on the other side. I happen to have a lot of conservative friends, and I disagree with them on a lot of things, but they’re my friends, and I think they’re good people, and we have disagreements of opinion. But you can’t close yourself off to those folks. And I just want to read a couple of quotes from people who you might not expect who gave you some support. This is from David Keene, who’s a former president of the NRA. And he said about you, “Vanita is a very good person. I’ve worked with her on criminal justice reform issues. Most of the Obama administration people have been so ideologically driven that they won’t talk to people who disagree with them. Vanita is someone who works with everyone. She both listens to and works with people from all perspectives to accomplish real good.” That’s the NRA. It gets even better, or worse, depending on your perspective. Grover Norquist. Huge figure on the right on tax issues and other things. He said to the Washington Post that you have “been open to working with conservatives on good policy. She has played a strong role in the left/right cooperation in criminal justice issues.” What’s up with that?

Vanita Gupta: I will work with whoever is open to working on issues to get progress. And with criminal justice reform issues, I have spent my whole career working to reform our criminal justice system. And in the last many years, there have been champions on the right that have been working on these issues – not for the same reasons necessarily that I am.

Preet Bharara: Does it matter what their reasons are?

Vanita Gupta: Well, I – I mean, I think it’s important to be aware of people’s reasons. But if we can agree on outcomes, then, on the long – kind of the goals over the long-term, I will work with whoever. To me, it’s really important to be practical about these things, while having the integrity to be fully aware and cognizant of what the limitations of these partnerships are.

Preet Bharara: So, for example, if you think there are too many people in prison and that’s unjust, and other people think the fact that there are too many people in prison costs too much, you can work with them.

Vanita Gupta: Yeah. I mean, I did it all the time. To me, what my primary animating motivation for working on criminal justice reform has been the grave racial injustice that has come about as a result of many criminal justice policies over the last several decades. But for a lot of people on the right, there really is a sense that the government overreached at the state and federal level, that it’s cost too much. And I—in the era of criminal justice reform, I will continue to work with people who understand that our system of mass incarceration has gone on too long and needs to end. What pisses me off is this notion that you can either be for crime fighting or for constitutional policing; or you can be crime fighting or against – if you’re for constitutional policing, you’re anti-police. This is what – I actually think the rhetoric coming from Jeff Sessions right now on policing is really divisive because there’s – of course law enforcement and federal prosecutors have a really important job to do and are doing it, but it’s not to the exclusion of ensuring constitutional policing and civil rights. In fact, those things go hand-in-hand, right?

Preet Bharara: And I’m glad you said that, because I’ll tell you what pisses me off. From the other perspective, there are people who that all cops are bad. They think all agents are bad. They think all prosecutors are bad. I was at an event recently with other people who didn’t like the fact that I was there because of the kind of work that I used to do. And I get that, and I respect that, and I appreciate that. But something briefly set me off when I heard someone say in a question, and I saw a sign that said, “Prosecution is not public interest.” And yeah, there are bad eggs and bad apples and whatever food item you want to use. On either side, as you describe, there are people who think that everyone is all good or all bad, and it’s not as simple as that.

Vanita Gupta: Yeah. It isn’t as simple as that. And I refuse to ascribe to that. That’s so overly simplistic. And at the same time, it’s also not just about a few individual bad apples in any profession.

Preet Bharara: There’s some systemic problems too.

Vanita Gupta: There are systemic issues, right? And that’s what –

Preet Bharara: Yeah. I mean, the problem is, everyone wants to caricature the other side.

Vanita Gupta: Especially when there’s a lot of anger and pain. I mean, I get the impetus, but I actually don’t think that it moves us forward. I mean, that’s the thing, when even at a time when Ferguson, and Baltimore, and Chicago, and all – every week, there was a viral video of police violence that was coming across my desk that was deeply painful, that wasn’t a situation where there were police officers and chiefs of police who thought, well, of course Vanita’s gonna be anti-police because she’s the head of the Civil Rights Division. And yet, I was walking into every one of those conferences understanding how challenging policing is, how difficult these issues are, while also recognizing the deep and incredible pain and history of policing and race in this country. I don’t think that these things are somehow divided or polarized. We’re not gonna make any progress on these issues so long as people think of these things as incredibly simplistic. It isn’t an us and them proposition that’s gonna get us through to actually get to transformation on these issues.

Preet Bharara: I want to ask you one final question. Will you consider running for office to make more change?

Vanita Gupta: I wouldn’t run for office.

Preet Bharara: Why not?

Vanita Gupta: You know, my way of making change is, I’ve been a civil rights lawyer my whole life. And I believe in trying to use the tools of the law to promote change. And where the law is insufficient to change the law –

Preet Bharara: Well, you know what? One way to change the law is to become a lawmaker, right?

Vanita Gupta: I am so glad that there are others out there who are willing to put themselves out there to become a lawmaker. What –

Preet Bharara: Like Jeff Sessions, for example.

Vanita Gupta: Well, you know, he got elected.

Preet Bharara: Right, so –

Vanita Gupta: I know.

Preet Bharara: I go back to my point.

Vanita Gupta: I know. Look, there’s a role for – are you gonna run for office? You know everyone’s asking you whether you’re gonna run for us.

Preet Bharara: I know, but this is my podcast, so I ask the questions.

Vanita Gupta: No, you could me you could – I could ask you some questions too.

Preet Bharara: Look, it’s not my cup of tea.

Vanita Gupta: It’s not my cup of tea either.

Preet Bharara: So, since you’ve left the Civil Rights Division, I’ve been at least really heartened to see that you’re continuing to do important civil rights work, but from the outside as a private citizen, as the head of the Leadership Conference on Civil and Human Rights. Tell us a little bit about why you decided to do that.

Vanita Gupta: It was just too hard, almost immediately with the Muslim ban, to conceive of sitting on the sidelines when so much of the work that we have been doing collectively is vulnerable and under attack. This is exactly where I need to be. I’m working with organizations as storied as the NAACP Legal Defense Fund, MALDEF, the ACLU, Southern Poverty Law Center. They’re all part of the Leadership Conference. And we’re working really hard to do what we can to fight for justice and inclusion. And it’s an honor to do it, even as dark as these days may seem.

Preet Bharara: Vanita Gupta, thanks for joining us.

Vanita Gupta: Thank you, Preet. Great to be here.

[End of Audio]

Preet Bharara’s new podcast, “Stay Tuned with Preet” on CAFE, is now live. Listen here on Apple Podcasts.