Skip Navigation
Event

Reimagining the Rule of Law

This panel will discuss what’s at stake and what can be done to shore up protections for the rule of law in the federal government.

Past: Tuesday, October 6, 2020 1:00 pm
This is a virtual event
Speakers:
  • Preet Bharara
  • ,
  • Janai Nelson
  • ,
  • Donald B. Verrilli Jr.
  • ,
  • Christine Todd Whitman
  • ,
  • Daniel I. Weiner
  • Wendy R. Weiser
Reimagining the Rule of Law

In recent months, crit­ics have frequently invoked the concept of the rule of law to denounce protests and other public displays of outrage against systemic injustice. Yet rule of law has always meant much more than the preser­va­tion of public order. In fact, police brutal­ity and self-appoin­ted vigil­ant­ism against Black Amer­ic­ans are offenses against the rule of law — to say noth­ing of grossly dispro­por­tion­ate and milit­ar­ized responses to largely peace­ful protests. 

The compli­city of the White House and U.S. Depart­ment of Justice in these responses under­scores the danger of erod­ing federal safe­guards against abuse of power. These deteri­or­at­ing protec­tions comprom­ise the rule of law and, by exten­sion, the civil rights and liber­ties of all Amer­ic­ans. This is but one example of the many abuses of power related to law enforce­ment that we have seen over the last three and half years.

Restor­ing bulwarks against such abuses will be one of the most urgent tasks for the next Congress and pres­id­ent. This panel will discuss what’s at stake and what can be done to shore up protec­tions for the rule of law in the federal govern­ment.

Speak­ers:
Intro­duc­tion by Wendy R. Weiser, Vice Pres­id­ent, Demo­cracy Program, Bren­nan Center for Justice

  • Preet Bhar­ara, Co-Chair, National Task Force on Rule of Law and Demo­cracy; Distin­guished Scholar in Resid­ence, NYU School of Law; Co-Host, Stay Tuned with Preet; former U.S. Attor­ney, South­ern District of New York
  • Janai Nelson, Asso­ci­ate Director-Coun­sel, NAACP Legal Defense and Educa­tional Fund, Inc. (LDF)
  • Donald B. Verrilli Jr., Member, National Task Force on Rule of Law and Demo­cracy; Part­ner, Munger, Tolles & Olson; Former Soli­citor General of the United States
  • Christine Todd Whit­man, Co-Chair, National Task Force on Rule of Law and Demo­cracy; Pres­id­ent, Whit­man Strategy Group; former Admin­is­trator, Envir­on­mental Protec­tion Agency; former Governor, State of New Jersey
  • Moder­ator: Daniel I. Weiner, Deputy Director, Elec­tion Reform Program, Bren­nan Center for Justice

Tran­script:

WENDY R. WEISER: Good after­noon and welcome. My name is Wendy Weiser, and I am vice pres­id­ent for demo­cracy at the Bren­nan Center for Justice, a nonpar­tisan law and public policy insti­tuted affil­i­ated with NYU Law School. We work to reform, revital­ize, and defend our systems of demo­cracy and justice, hold­ing them up to the twin ideals of demo­cracy and equal protec­tion under the law. We are a nonpar­tisan 501(c)(3). We do not parti­cip­ate in elec­tions or endorse or oppose candid­ates in any way.

 

And we are very grate­ful to be produ­cing today’s event with the NYU’s John Brademas Center, which advoc­ates for civil debate on polit­ics and public policy, and NYU Votes, which works to give every NYU eligible student the inform­a­tion they need to vote. And I am espe­cially grate­ful to be intro­du­cing an event with some of the coun­try’s most import­ant thinkers on what I think is one of the most urgent issues we face — and there is a lot of compet­i­tion.

We’ve been witness­ing a relent­less and unpre­ced­en­ted series of attack on the twin found­a­tions of our demo­cratic system — free and fair elec­tions and the rule of law. They are not unre­lated. The pres­id­ent has made repeated threats to subvert the elec­tion, some with support from the attor­ney general, suggest­ing he’ll send law enforce­ment or milit­ary to the polls, which is illegal, promot­ing vote suppres­sion and, perhaps most chillingly, refus­ing to commit to abide by the elec­tion results. Some are worried that the rule of law has been so eroded in this coun­try that it may be possible to liter­ally steal an elec­tion. And we think there are strong legal and insti­tu­tional safe­guards against that, but the dramatic erosion of the rule of law in recent years is unmis­tak­able.

We’ve seen law enforce­ment weapon­ized for partisan and polit­ical gain, from threats of polit­ic­ally motiv­ated prosec­u­tions against polit­ical adversar­ies to the actual inter­fer­ence of prosec­u­tions in favor of the pres­id­ent’s polit­ical allies and friends, to the improper use of the milit­ary to respond to protests and create polit­ical theater. We’ve seen polit­ic­ally motiv­ated attacks on science and the scientific integ­rity of govern­ment insti­tu­tions. And the Bren­nan Center has been actu­ally track­ing the impact of that on the health response to Covid-19.

And we’ve seen the admin­is­tra­tion politi­cize neut­ral insti­tu­tions in the federal govern­ment — from the Census Bureau to the Centers for Disease Control to the Weather Service. And more broadly, we have witnessed a relent­less stream of cases, many unpun­ished, of police viol­ence against Black and brown people in Amer­ica, the brutal­iz­a­tion of those communit­ies by people who are charged with protect­ing them. In short, we are facing a rule-of-law crisis.

But like other crises, this one has its roots in prob­lems that pred­ate this admin­is­tra­tion. Our coun­try’s reck­on­ing with racial viol­ence and systemic racism is long over­due. We have toler­ated the injustices and lawless­ness direc­ted at Black and brown communit­ies for too long. The stream of abuses at the federal level have been made possible by longer-stand­ing erosion of demo­cratic and rule-of-law norms. And one thing this admin­is­tra­tion has made abund­antly clear is that the guard­rails that we have tradi­tion­ally relied upon to check abuses of power in govern­ment are too flimsy.

And that’s why the Bren­nan Center convened the National Task Force on Rule of Law and Demo­cracy, which is a group of emin­ent cross-ideo­lo­gical and cross-partisan indi­vidu­als with exper­i­ence work­ing at the highest level of Demo­cratic and Repub­lican admin­is­tra­tions at the federal and state levels. Their mission is to shore up guard­rails against the abuse of federal govern­ment power. They are co-chaired by former U.S. Attor­ney Preet Bhar­ara and Governor Christine Todd Whit­man, who are with us today. And other members include former Soli­citor General Don Verrilli, who is also join­ing us; former Delaware Governor Mike Castle; former White House adviser and Professor Chris Edley; former Secret­ary of Defense Chuck Hagel; former U.S. Attor­ney Captain David Iglesias; and former Director of the Office of Govern­ment Ethics Amy Comstock Rick.

The work of this task force has been to create legis­lat­ive propos­als to shore up limits on exec­ut­ive power, safe­guard­ing the rule of law, enfor­cing ethics stand­ards, prevent­ing polit­ical attacks on science within federal govern­ment, all without under­min­ing the proper func­tion­ing of the exec­ut­ive branch. Their propos­als would put real teeth into the guard­rails and unwrit­ten rules that both parties have agreed to follow in the past, and almost every single one of their propos­als is now reflec­ted in legis­la­tion pending before Congress that should be a prior­ity for the next Congress.

Of course, there is much, much more that we need to do to build a national commit­ment to the rule of law and in which every person is truly equal before the law. And so to discuss these issues and more, I am delighted to turn this over to my colleague, Dan Weiner. He is the deputy director of the Bren­nan Center’s Elec­tion Reform Program, and thank you all for join­ing us.

DANIEL I. WEINER: So needed to unmute there. Thank you so much, Wendy.

The panel­ists that we have join­ing us today really need no intro­duc­tion, so I’m going to keep it very, very brief. But Preet Bhar­ara was the United States attor­ney for the south­ern district of New York from 2009 to 2017. Prior to that, he was a prosec­utor at the Depart­ment of Justice and he was also chief coun­sel to Senator Chuck Schu­mer. And today, of course, he is the host of Stay Tuned with Preet and the co-chair of our National Task Force that Wendy mentioned.

Janai Nelson is the asso­ci­ate director-coun­sel at the NAACP Legal Defense and Educa­tional Fund and a lead­ing prac­ti­tioner of civil rights litig­a­tion in the coun­try. Prior to that, she was a professor at St. John’s Law School and is a noted scholar of both consti­tu­tional and civil rights issues.

Don Verrilli was the 46th soli­citor general of the United States. He is also a member of our National Task Force, as Wendy noted. Currently, he is a part­ner at Munger, Tolles & Olson, a renowned law firm, and prior to that he was also a part­ner at Jenner & Block, where I actu­ally had the priv­ilege of work­ing under him briefly.

And finally, last but defin­itely not least, Christine Todd Whit­man was the 50th governor of New Jersey and also the 9th admin­is­trator of the United States Envir­on­mental Protec­tion Agency, serving under Pres­id­ent George W. Bush. She’s currently the pres­id­ent of Whit­man Strategies and, as Wendy noted, the co-chair of our National Task Force.

So with that, I would like to jump in with the first ques­tion, and I’m going to address that to our co-chairs of our task force, Preet and Governor Whit­man. And both of you have been speak­ing and writ­ing about some of the issues that are kind of on the front page, from the pres­id­ent’s tax returns to the politi­ciz­a­tion of law enforce­ment to attacks on govern­ment science for years. Some might say you were a bit pres­ci­ent on these issues.

But my ques­tion for you is, you know, there’s a lot going on in the world right now. So maybe you could talk a little bit about why people should care and also why these issues should be a focus for poli­cy­makers. And I think maybe, Preet, if you want to go first and then we’ll turn to Governor Whit­man.

PREET BHAR­ARA: Sure. It’s good to be with all of you. Thank you, Dan, for the intro­duc­tion and it’s great to be with folks, and I see we have a large online audi­ence. So pleased to be with you on some­thing so import­ant, and my co-panel­ists as well.

You know, people have said from time to time, “May you live in inter­est­ing times.” Our times are a little bit too inter­est­ing, and your ques­tion a little bit goes to this issue that we have of how many prob­lems can we face as a nation. And, obvi­ously, one of the most import­ant things that’s happen­ing right now and the most devast­at­ing things that the coun­try has ever faced is this global pandemic. The whole world has been facing it; more than 200,000 people dead.

And so I take the spirit of your ques­tion to be, you know, when people are dying, how do we have time and energy to focus on issues like rule of law or norms? Those seem to be luxur­ies in a demo­cracy. I don’t look at it that way. Obvi­ously, we need to care about science, and science is one of the things that the task force that Governor Whit­man and I co-chair has been talk­ing about.

But at the same time that we’re trying to stave off disease and trying to keep our coun­try safe from the pandemic, we have to, I think, keep an eye on what the values of our coun­try are. At some point we’re going to come out of the pandemic — hope­fully, sooner rather than later — and at what cost to our insti­tu­tions?

I also see a paral­lel between the issues — and the chal­lenges facing the Justice Depart­ment and the chal­lenges facing the insti­tu­tions that are deal­ing with the pandemic — and it comes to an issue of inde­pend­ence, expert­ise, truth. All of those things, I think, factor into this issue of rule of law. And the attacks on the Depart­ment of Justice’s inde­pend­ence, the attack on the Depart­ment of Justice’s rank-and-file lawyers — who have, you know, basic expert­ise in the cases that they bring and that they try, and that when appro­pri­ate they dismiss — those same things and those same attacks and chal­lenges are happen­ing with other insti­tu­tions that also are supposed to be inde­pend­ent and I think laypeople under­stand even more so, like the CDC or the NIH.

And to me they’re part of the same prob­lem, an idea that if you’re an admin­is­tra­tion who cares about polit­ics over justice, or cares about polit­ics over medi­cine and over epidemi­ology, then you’re going to bring us to ruin. And in the matter of the pandemic, that brings us to ruin with respect to human lives. And with respect to the Depart­ment of Justice and rule of law, it some­times can affect human lives. It is a matter of life and death. For George Floyd it was a matter of life and death, and for so many others. But it’s also funda­mental to what our demo­cratic values are.

Are we a coun­try in which every­one is treated equally before the law? Or are we a coun­try like some other nations around the world where the pres­id­ent gets to decide — because he has the power of being the chief of the exec­ut­ive branch — we’re going to bring the weight of law enforce­ment on you if you’re an adversary and we’ll take away the weight of law enforce­ment against you if you’re an ally? And we’ve seen that in the Flynn case, we’ve seen that in the Stone case, and so many others. So it’s very import­ant for us as a coun­try to not lose sight of the fact that we have tradi­tions and norms that are being trampled and that could be, you know, really choked for a long period of time even after the pandemic is gone.

And I’m sure Governor Whit­man has a lot to add to that.

WEINER: Governor?

CHRISTINE TODD WHIT­MAN: Well, thank you, Preet. And thank you to the Bren­nan Center, as always, for the backup that you’ve given for putting this task force together, and to all the panel members for their dedic­a­tion to it because this is a panel that’s taken things very seri­ously, as you well know. We’ve disused these issues on and on.

And what’s import­ant to remem­ber, it’s a task force on the rule of law and demo­cracy. The rule of law is not just limited to those depart­ments that have the obvi­ous respons­ib­il­ity of enfor­cing the law. When we’re talk­ing about the rule of law and demo­cracy, we are also talk­ing about insti­tu­tion­al­iz­ing those norms that have been the guard­rails that have protec­ted soci­ety and kept our govern­ment within bounds for so long.

Preet mentioned the pandemic. Obvi­ously, this is one of the most egre­gious or obvi­ous examples of where we have gone off the guard­rails, because it used to be that there was a very clear respect for pure science — that while policy always determ­ined at the end of the day how you went, how you used that science, it wasn’t polit­ics, and there’s a differ­ence between partisan polit­ics and policy, and pure science has to be the basis of things. And what we’re seeing today — every day — has been a dismiss­ing of science and scient­ists, a look­ing the other way, of false inform­a­tion going out to people so that they’re confused, conflict­ing messages that are being sent to people so they don’t know how to react, they don’t know how to respond to this.

And this virus is not just a medical emer­gency, it’s an economic cata­strophe as well. And not only have we lost over 210,000 indi­vidu­als in this coun­try alone, we have also seen, first of all, the uneven impact on communit­ies of color from this disease and the uneven impact on busi­nesses from those communit­ies, as well as small busi­ness over­all, and big busi­ness as well when you see what’s happen­ing with the airlines and the people who are put on furlough. They don’t know whether they’re going to have a job in another week or two or month if Congress can’t move forward to get some bills through. And you saw that our head econom­ist, basic­ally, the head of the Fed, said today — Jerome Powell — that, in fact, they can’t spend enough money on this stim­u­lus right now compared to the damage that’s being done to our economy. And a lot of this is occur­ring because we have been ignor­ing those norms that we took for gran­ted. And that’s one of the things that our reports — there are two of them — go to.

They go to common­sense, bipar­tisan, nonpar­tisan ways to address these issues and to finally put some para­met­ers around science, trans­par­ency of science, so people can see it. Govern­ing how the exec­ut­ive depart­ment — the White House, actu­ally — inter­cedes with the Justice Depart­ment, when it’s appro­pri­ate, when isn’t it, and how do those things move forward. Putting some protec­tions around the special prosec­utors and the inspector gener­als, so that they can only be dismissed for cause, and even then that should be reviewed. There are a lot of things here that speak to beyond what those depart­ments that have to enforce the law need to do but are very much a part of the rule of law and demo­cracy, which is what this task force has been all about.

WEINER: Thank you, Governor. And there is a lot there in both your remarks that I want to come back to. But I’d like to bring Janai into the conver­sa­tion. And specific­ally, Janai, we had a pres­id­en­tial debate last Tues­day. It seems like it was 100 years ago. May you live in inter­est­ing times, as Preet said. But you know, folks may have noticed that law and order was a bit of a theme, partic­u­larly for the pres­id­ent, although both candid­ates spoke to it. And I’m wonder­ing if you can talk a little bit about, you know, these implic­a­tions of the rule of law, but what the rule of law really means to you. And partic­u­larly, I think it would be great if you could situ­ate that also in what’s obvi­ously going on right now, which is a historic reck­on­ing in the ongo­ing struggle for racial justice.

JANAI NELSON: Sure. Thanks for that ques­tion. And first, let me say thank you to you and the Bren­nan Center. And it’s just wonder­ful to be part of this discus­sion. And I’m very heartened that we’re having a conver­sa­tion about the rule of law, because I don’t think that we as a soci­ety do it often enough. So I very much appre­ci­ate this oppor­tun­ity to be in dialogue with such an esteemed group of speak­ers.

You know, it’s funny. A week after the 2016 elec­tion, I gave a lecture at John Jay College in New York about this very topic, about rethink­ing the phrase “law and order” and examin­ing, you know, the very visceral response that those words evoke for differ­ent segments of our soci­ety. And that term, “law and order,” really gained polit­ical sali­ence in 1968, when Pres­id­ent Richard Nixon and Alabama’s infam­ous Governor George Wallace both campaigned on vary­ing plat­forms of law and order.

And some of us are old enough — (laughs) — to recall Pres­id­ent Reagan’s use of very coded racial appeals about so-called welfare queens to galvan­ize the white vote to restore law and order. We saw Pres­id­ent [George] H.W. Bush famously run an ad on the revolving door, allud­ing to the viol­ent crimes of an African Amer­ican man — Willie Horton — also to invoke a call for law and order. So that phrase has been used through­out our polit­ical history.

And, as we just saw in last week’s debate, it’s used as a dog whistle. It’s used to foment racial resent­ment by asso­ci­at­ing the recent protests against police viol­ence with lawless­ness and disorder. And I just want to be clear about what the invoc­a­tion of law and order is. And it’s not limited to any one polit­ical party, so this is in no way a castig­a­tion of a single party. And like the Bren­nan Center, the NAACP Legal Defense Fund is also nonpar­tisan and does not endorse parties or candid­ates.

And law and order has been used, you know, I would say abus­ively by both the Demo­crats and Repub­lic­ans alike. But what I want to point out is that it is often, if not always, you know, tacitly refer­en­tial of Black people and of other people of color, and the perceived need for greater law enforce­ment against them. And we’ve had, you know, nearly four years that have followed that call for law and order, and in that time it has become an increas­ingly fanat­ical appeal, laden with nation­al­ism and white suprem­acist over­tones, frankly.

And the fact of the matter is, law and order presumes a hier­arch­ical racial order that uses law, and when that does­n’t yield the desired result, it uses other means to preserve the status quo. But I’ll say this: At the same time you also have a deaf­en­ing cres­cendo of voices in the streets of this coun­try and around the world demand­ing in very import­ant ways their own version of law and order. They’re demand­ing a system of law, you know, that is protect­ive of their lives, of the lives of their neigh­bors and community members, in the same way that it’s protect­ive of all lives, in theory. And they’re demand­ing an order of justice where police can be held account­able.

And the rule of law is really cent­ral to this fight for racial justice because, you know, at bottom, the rule of law is about consist­ency and fair­ness and account­ab­il­ity at all levels of govern­ment. It’s the enforce­ment of laws to protect civil, human, and consti­tu­tional rights. It’s about prevent­ing state-sanc­tioned lawless­ness in the form of police brutal­ity and, you know, unchecked vigil­ante viol­ence against African Amer­ic­ans — which we’re seeing more often — and of course against other groups.

But if there were a true commit­ment to the rule of law, and to a real neut­ral concept of law and order, we would­n’t have witnessed the mobil­iz­a­tion of the National Guard and other federal resources to use brutal force against protest­ers in DC and Port­land and other U.S. cities over the objec­tions of state and local offi­cials. We would not have witnessed law enforce­ment actively support­ing and even sympath­iz­ing with far-right vigil­ante groups, or the pres­id­ent of this coun­try lion­iz­ing an illeg­ally armed 17-year-old, who traveled to Kenosha with the assist­ance of his mother to commit hein­ous killings.

And we would­n’t have seen the pres­id­ent use his pardon power — which I think, you know, Preet alluded to — to reward polit­ical allies like Arizona Sher­iff Joe Arpaio, who engaged in blatant racial profil­ing. He lied about it to a court; he was held in contempt for refus­ing to follow court orders. And we’ve seen other examples of abuse of that pres­id­en­tial author­ity. So, you know, I’ll just say in the end that this warped inter­pret­a­tion and applic­a­tion of law and order is diamet­ric­ally opposed to the rule of law. And those of us who truly believe in the rule of law ignore that false equi­val­ence at our own peril.

WEINER: Thank you.

Don, I want to bring you into the conver­sa­tion and invite you to respond to what every­one else just said. But then also, another perspect­ive actu­ally that you and also, obvi­ously, Preet can speak to is the exper­i­ence of the attor­neys and the other folks in the govern­ment who actu­ally are doing the day-to-day work and are by and large, you know, at the Depart­ment of Justice, dedic­ated public servants. And how is this affect­ing the insti­tu­tion? And I know that’s some­thing you’ve spoken out about before. So perhaps you could include that in your remarks.

DONALD B. VERRILLI, JR.: Thanks, Dan. It’s good to see you again. It’s great to be able to parti­cip­ate in this panel with the governor and Preet and Janai. And I commend the Bren­nan Center for the phenom­enal work its doing on this vitally, vitally import­ant set of issues.

I do actu­ally want to focus partic­u­larly on what’s happen­ing to the Justice Depart­ment, and what’s happened really to the Justice Depart­ment since the start of Pres­id­ent Trump’s term in office. You know, it’s an insti­tu­tion. We talk about the cent­ral­ity of the rule of law and how it under­girds not just our own sense that we live in a just soci­ety and that the power of govern­ment is being exer­cised justly but that it permeates everything that the govern­ment does. And it’s really the bedrock found­a­tion of the public’s sense that they can have confid­ence in their govern­ment. And it’s the destruc­tion of that faith, as we see with the FDA and the CDC and so many other organ­iz­a­tions now at the time when we most need them that really is a devast­at­ing tragedy for our coun­try.

And it really did start, I think, with the Depart­ment of Justice very early in this pres­id­ency, where really from the begin­ning of 2017 on Pres­id­ent Trump essen­tially took a sledge­ham­mer to the integ­rity of the Depart­ment of Justice. He was hammer­ing at the FBI as being part of the deep state and untrust­worthy; hammer­ing at the Mueller team as being partisan and not public servants; hammer­ing at the depart­ment. And it was really taking its toll over time, and it was really erod­ing the sense of mission of the career lawyers in the depart­ment.

But now, you know, you’ve got an attor­ney general who’s hollow­ing the place out from the inside, which is an even more extraordin­ary thing to behold and even more of a tragedy. And to see career prosec­utors like Jonathan Kravis, the chief prosec­utor for Roger Stone, feel the need to resign after many years as a dedic­ated prosec­utor, other career lawyers going up to Congress and testi­fy­ing about their disquiet, and, you know, on and on really is some­thing.

And this is a small epis­ode but one that really struck home with me because it involved my old office, the soli­citor gener­al’s office. The attor­ney general a month or so ago was trying to continue his campaign of discred­it­ing the Mueller special coun­sel invest­ig­a­tion and its report, and he talked about members of the special coun­sel’s team, and he said the follow­ing: he said, you know, two of those people — in trying to prove partis­an­ship — two of those people were people who wrote briefs for the Obama admin­is­tra­tion. Now, what he was talk­ing about was two lawyers who had worked in the soli­citor gener­al’s office, one of whom was Michael Dreeben, who is a legend. Preet knows him well, worked for Repub­lican and Demo­cratic pres­id­ents and admin­is­tra­tions a lot. He was the consum­mate career public servant, looked up to by every­body in the depart­ment for his commit­ment to the public interest and to serving the United States and not serving any partisan agenda. And to see him dragged through the mud like that so that the attor­ney general could score a cheap polit­ical point, I mean, it was just terrible.

You know, when I was priv­ileged enough to be running the SG’s office, I made it a point to hire conser­vat­ive Repub­lican career lawyers as well as liberal Demo­crat career lawyers into that office because the whole point of it was it was supposed to be a nonpar­tisan office that served the interest of the people of the United States. And that’s the mission that the thou­sands and thou­sands of people who work in the depart­ment — the many career lawyers, the FBI agents, and every­body else — that’s how they under­stand their mission. When they have the pres­id­ent of the United States and now the attor­ney general basic­ally telling them that what they’re doing isn’t worth a darn, it’s just a devast­at­ing thing, I think, for our coun­try. And it’s going to take an enorm­ous, enorm­ous amount of work — we have to not only rebuild the public’s confid­ence in the Depart­ment of Justice as an insti­tu­tion, we’re going to need to rebuild the sense of confid­ence and integ­rity on the inside because it’s been so terribly, terribly damaged over the last three-and-a-half years. It’s a colossal tragedy.

WHIT­MAN: Can I add some­thing to that?

WEINER: Go ahead.

WHIT­MAN: You know, that’s true through­out the federal govern­ment under this admin­is­tra­tion, partic­u­larly any part of the govern­ment that has anything to do with science. Certainly, the EPA — they’ve lost over 900 scient­ists, and those that have been replaced have been largely replaced by scient­ists who come from the very indus­tries that are regu­lated by the Envir­on­mental Protec­tion Agency. You cannot expect them to be unbiased. You have to worry about the science.

Rebuild­ing that insti­tu­tional know­ledge through­out the federal govern­ment is not going to happen overnight, and we’re the poorer for it. Morale is down. Those who want to bring forward things that they think are really import­ant that we should know around science are scared to do that because if it does­n’t comport with the polit­ical agenda of this admin­is­tra­tion they will find them­selves reas­signed. They will find them­selves sent to other parts of the coun­try to work, to be put into fields where they have no basic insti­tu­tional know­ledge.

So it’s just devast­at­ing to see what’s happen­ing — the under­min­ing of people who have devoted their careers to trying to make our coun­try safer, stronger, better. And being demon­ized or being told that they aren’t worth anything, it does­n’t matter, that everything is polit­ical is mind-boggling to me, partic­u­larly with Justice. To have the attor­ney general doing this is just extraordin­ary. I expec­ted it with the science because the pres­id­ent does­n’t believe in regu­la­tion, does­n’t believe that we need to touch the envir­on­ment outside, that it’ll take care of itself. I would have hoped that this coronavirus would have shown that, in fact, that’s not the case, not to mention the fires and the floods and the storms that we’ve had from climate change. This is going to take us a long time from which to recover, but we need to start right away.

BHAR­ARA: Can I just mention just one more insti­tu­tion that I think would have been a great surprise for anybody to think a few years ago would have been politi­cized? We talked about the CDC, we talked about the FDA, the Depart­ment of Justice — which has had issues in the past and scan­dals in the past, none like I think we’ve seen this time around. But the United States Postal Service.

WHIT­MAN: (Laughs.) Yeah.

BHAR­ARA: In what universe would someone have thought that the United States Postal Service, which I think is the most highly respec­ted, you know, agency within govern­ment — every­one loves their postal carrier and relies on postal carri­ers, less than they used to — but the idea that even that can become politi­cized and expert­ise can be taken away should be another example of why all of this work, you know, jibes with the work that we’re talk­ing about with respect to rule of law.

WEINER: I’m glad you brought up the Postal Service because, obvi­ously, the issues with the Postal Service are tied to the elec­tion, which is, as we know, actu­ally ongo­ing right now. People have star­ted voting. And we also talked a little bit about Attor­ney General Barr, who has made some state­ments about the elec­tion and about things like voter fraud or alleged voter fraud. Janai, I’m wonder­ing if you could talk a little bit about what we should make of these inter­ven­tions and, you know, what that means sort of for the integ­rity of our demo­cracy.

NELSON: Yeah. I think “inter­ven­tions” is a very polite word. (Laughter.) And I appre­ci­ate the oppor­tun­ity to talk about it.

And I just want to pile on, though, to the last part of the discus­sion, and hope­fully we’ll have a moment to talk about this as well. But the other insti­tu­tion that we should be deeply alarmed about becom­ing more and more politi­cized — at least in the eyes of the public and by virtue of all of the mach­in­a­tions of the Senate and Mitch McCon­nell in partic­u­lar — is the Supreme Court. And for those of us who are litig­at­ors and who rely on the courts for justice and as a check on other parts of govern­ment, that is deeply, deeply alarm­ing. And I hope that we’ll have an oppor­tun­ity to talk about that.

But I do want to talk about what Attor­ney General Barr has done in connec­tion with elec­tions — along with the pres­id­ent — and we need to really name what’s happen­ing here. We heard the pres­id­ent say that he would be send­ing U.S. marshals and, you know, attor­neys, prosec­utors, law enforce­ment, and others. And we heard Bill Barr allude to the idea of send­ing milit­ary and armed forces to the polls. This is the stuff of fail­ing demo­cra­cies that are, you know, descend­ing toward author­it­ari­an­ism, and it’s the kind of stuff that we ordin­ar­ily would be push­ing back against if we heard any coun­try abroad suggest­ing any of these tactics. But instead we have the pres­id­ent of this coun­try, who’s also a candid­ate on the ballot, with the aid and abet­tance of the chief law enforce­ment officer of the coun­try — who’s charged with enfor­cing civil and consti­tu­tional rights — threat­en­ing to use armed forces to intim­id­ate voters at the polls. And even if you simply take them at their word that they’re trying to deter voter fraud, they have made clear that they’re will­ing to use intim­id­a­tion tactics to do it.

And I first just need to make it clear that having armed forces at the polls is just patently illegal. Unless there are armed enemies of the United States threat­en­ing a polling site or voters at a polling site, 18 U.S.C. § 592 has made it a crime to deploy the U.S. milit­ary or any armed federal agents to a polling place since 1948. So to even suggest this tactic is a threat to our demo­cracy from within.

And what’s more, as you know many have poin­ted out, includ­ing very excel­lent report­ing by the Bren­nan Center, the premise of this is entirely bogus. In-person voter fraud is exceed­ingly rare. It’s so rare that in a study that Professor Justin Levitt conduc­ted that surveyed over 20 billion votes, only 31 votes of those cast were prosec­ut­able for in-person voter fraud. So the attor­ney general, just like the pres­id­ent, is peddling blatant false­hoods when they speak of rampant voter fraud.

But you know, whether they attempt to act on these ideas or not, these false­hoods are extremely danger­ous, and we should under­stand them as part of a form of voter suppres­sion and a long and sordid history of voter intim­id­a­tion that’s as old as this demo­cracy itself. And espe­cially when you look at the intim­id­a­tion of Black voters, which stems back to the 15th Amend­ment and Black men being gran­ted the right to vote in 1870, and Jim Crow laws, and the upheavals that led to the passage of the Voting Rights Act of 1965 — all of these chilling messages that the ballot box is some­how forbid­den ground for certain people.

And we don’t even have to look that far back in our history. I mean, in the 1980s the Repub­lican National Commit­tee sponsored some­thing called the National Ballot Secur­ity Task Force, which, its very purpose was to patrol polls, and the people on the task force, many of them were off-duty police officers who were armed with loaded service revolvers and they wore armbands, and we basic­ally had a mili­tia at the polls.

Thank­fully, there was a consent decree to prevent that sort of intim­id­a­tion, but that expired in 2018, and now we see some­thing called Army for Trump. We see a new effort that is a very concern­ing campaign with deeply milit­ar­istic over­tones, and it is unchecked, not only because there’s no consent decree in place but because we have a Depart­ment of Justice that is not will­ing to play any mean­ing­ful role in protect­ing the consti­tu­tional and civil rights of voters in this elec­tion.

It has failed to enforce the Voting Rights Act in most instances. A real Depart­ment of Justice that was not captured by partis­an­ship would be using its powers under the Voting Rights Act under Section 3(a) to send reli­able and neut­ral federal observ­ers to docu­ment poten­tial voter intim­id­a­tion and obstruc­tion at the polls. But instead we see this Depart­ment of Justice enga­ging or at least threat­en­ing to engage in those sorts of tactics itself, and that is truly a threat to free and fair elec­tions within our borders.

WEINER: Before we jump to other panel­ists, just I want to take the moder­at­or’s priv­ilege, just briefly, to note that all of that is very true and the federal govern­ment’s beha­vior is disgrace­ful. Of course the actual people admin­is­ter­ing the elec­tions are the elec­tion offi­cials around the coun­try, most of whom are very dedic­ated public servants.

So, you know, we hope every­one should vote. You should­n’t be intim­id­ated from voting. But the beha­vior of the federal govern­ment, I think, in this context we can agree is disgrace­ful, both about the lies about voter fraud and then also vote by mail, which, as we’ve also docu­mented, is very, very, very safe and secure.

But I want to give our other panel­ists a chance to jump in.

Preet, you might have some thoughts, partic­u­larly if you could address the outland­ish state­ments that another United States attor­ney in Pennsylvania made in connec­tion, partic­u­larly, to vote by mail.

BHAR­ARA: So the prob­lem is when you use what are supposed to be neut­ral insti­tu­tions, whether it’s the CDC, the Postal Service, or, I think, most compel­lingly, the Depart­ment of Justice, to promote some polit­ical end, and some­times polit­ical ends can be advanced by a polit­ical narrat­ive, and this pres­id­ent has made very clear that all hands on deck to promote the narrat­ive that absentee ballots, mail-in ballots, ballots are neces­sar­ily going to be rife with fraud.

The attor­ney general has done that on tele­vi­sion, spec­u­lat­ing without any evid­ence what­so­ever — and asked if there’s any evid­ence, he said I don’t have any evid­ence, it’s just logic — that foreign nations will send thou­sands and thou­sands of fraud­u­lent ballots, while on the other hand seem­ing to ignore actual elec­tion inter­fer­ence, both in 2016 and happen­ing again in 2020, and where that’s coming from, a diver­gent view he has from the actual FBI director, who was also hand­picked by the pres­id­ent of the United States, who’s out of favor a bit these days.

But when you subvert what is supposed to be a neut­ral, you know, rule-of-law process to advance a narrat­ive, that’s a prob­lem. And so you allude to this, you know, kind of odd case out of Pennsylvania where at one point it was nine ballots, then it was seven ballots, and there was an invest­ig­a­tion of whether or not there was fraud, what happened with those ballots — it’s a little bit confus­ing, the narrat­ive.

But the bottom line is stand­ard oper­at­ing proced­ure in the Justice Depart­ment is not to talk about invest­ig­a­tions and reveal details of invest­ig­a­tions, partic­u­larly reveal­ing details of invest­ig­a­tions, before they’re concluded and before some char­ging decision has actu­ally been made. And by the way, you don’t make a char­ging decision, you keep your mouth shut, as Jim Comey has been made to under­stand, given what he did four years ago with respect to Hillary Clin­ton.

Nonethe­less, this United States attor­ney, who I don’t know person­ally and am not really famil­iar with his repu­ta­tion, made public state­ments that he had to then revise because they were erro­neous with respect to these seven out of nine ballots that, presum­ably, were cast for Donald Trump and didn’t make their way to the right place.

And it may seem like a small thing, but it’s a signal to other people in the depart­ment or other people in other places that, you know what, the normal rules of keep­ing your mouth shut about an ongo­ing invest­ig­a­tion maybe don’t apply. And maybe it’s the case that if I, you know, exer­cise my discre­tion in a way to put the thumb on the scale a little bit every once in a while for this thing, because we see the attor­ney general doing it — whether it’s the Mueller report, or voting by mail, or Roger Stone, or anything else that caused, by the way, the resig­na­tion of the entire, you know, career prosec­utors from that case — then maybe that’s some­thing I should do too. And maybe it will help me to curry favor and maybe it will cause my career advance­ment.

And the flip side is even worse. If I don’t do those things, maybe I’m in trouble. Witness just the state­ment made — again, I keep making the point that all of these are sort of of a piece. So jump­ing out of the elec­tion mode, I mean, liter­ally the only thing that I think is clearly the correct, ethical move on the part of Jeff Sessions when he was in office was to recuse himself from the Russia invest­ig­a­tion. And that’s liter­ally the one thing that the pres­id­ent of the United States, this pres­id­ent, didn’t like about Jeff Sessions. And what did that lead to? That led to Attor­ney General Bill Barr, who broad­cast this by the way at his confirm­a­tion.

At his confirm­a­tion hear­ing — unlike prior nomin­ees who were confirmed to be the attor­ney general going back, I think, some time in the past, who said they would not only seek out ethics advice on recusal but they would follow the ethics advice given by career ethics people in the Depart­ment — Bill Barr said no, I’m not going to do that. So you have it coming from the White House. You have it coming from the head of the depart­ment. And I think you start to under­mine the culture, whether it comes to elec­tions or anything else. And what the U.S. attor­ney in the east­ern district of Pennsylvania did was a dramatic depar­ture of what is normally done.

WEINER: So, you know, I want to pivot soon to a little bit of hope, because I don’t want to scare the folks at home too much. But before we do that, I do want to just return briefly to a topic that Janai alluded to, which is the Supreme Court. And, Don, you know, nobody knows more about the Supreme Court than you, prob­ably. I wonder if you could talk a little bit about the implic­a­tions of what we’re seeing now there and the poten­tial shift for the Supreme Court to act as a guard­ian of the rule of law.

VERRILLI: Yeah. You know, it’s a little bit like what I was saying with respect to the Depart­ment of Justice. It’s vital to the health of our repub­lic, to our consti­tu­tional system, that the Amer­ican people have faith in the Supreme Court as an insti­tu­tion, that they believe that it’s an insti­tu­tion about law, and that it’s not a polit­ical insti­tu­tion. And that’s really been shaken very badly. I mean, I think one could go back as far as Bush against Gore to see for at least half of the coun­try — you know, that was a water­shed moment that really caused many Amer­ic­ans to have doubt in the idea of the Supreme Court as an insti­tu­tion of law and not of polit­ics.

But, you know, Demo­crats, people on the Left, I think they recon­ciled them­selves even­tu­ally with Bush against Gore and, you know, got back to the point of think­ing they could have faith in the insti­tu­tion of the Supreme Court. And then you got to the Merrick Garland fiasco in 2016, where Pres­id­ent Obama nomin­ated some­body in the early spring of 2016 who was, I think, as qual­i­fied as any nominee in the history of our coun­try, a moder­ate, beloved judge on the DC Circuit. And look what happened. I mean, there’s only one way to inter­pret what happened there, which was the Repub­lican major­ity in the Senate wanted some­body on the Court who was going to vote differ­ently on issues they cared about than they anti­cip­ated Merrick Garland would vote. That’s the only explan­a­tion, right?

And so they blocked it. And I thought at the time that that was going to just have a devast­at­ing effect on at least half the coun­try feel­ing that they could trust the Supreme Court. And I do think it has had a very seri­ous adverse effect. And now, you know, just in the last few weeks look at what’s happen­ing. Having had as a coun­try go through what we went through with the Garland nomin­a­tion, to now have Justice Gins­burg — a revered, beloved justice — pass away just a few weeks before the elec­tion, and have an effort made by the pres­id­ent with the support of the Repub­lican lead­er­ship in the Senate to try to fill that seat, on the eve of the elec­tion, right in the teeth of the argu­ment that was offered in 2016 as a reason why the Garland nomin­a­tion should­n’t be considered.

I mean people should ask them­selves, why would you think half the coun­try would have any faith that this is a neut­ral insti­tu­tion that’s devoted to the rule of law when you see this kind of shenanigans surround­ing the process of decid­ing who goes on the court? I think it’s a terrible prob­lem. And I think we’re going to pay a price for it for a long time.

WEINER: Janai, do you want to jump in, since you’ve raised this before, too?

NELSON: Sure. I could­n’t agree more with everything that was just said. You know, the crit­ical mass of the people in our coun­try no longer see our judi­cial system as a poten­tial avenue of relief, espe­cially in a system like ours, where the Supreme Court ulti­mately determ­ines the law of the land. We are in extraordin­ar­ily peril­ous terrain. And that feel­ing of distrust towards our system is grow­ing. And that’s why we’re seeing sustained protests.

You know, many like to quote Dr. King. He described riot as the language of the unheard. And he was talk­ing about the upris­ings in the early 1960s in Watts and Harlem. But they leave off the next line. And the next line is, “And what is it that Amer­ica has failed to hear?” And protest­ers are saying in no uncer­tain terms that there is a grow­ing faith­less­ness in our system of justice. And that’s well-foun­ded [disil­lu­sion­ment] because of the antics that we’re seeing in Congress, and all of what, you know, was just described in terms of how the nomin­a­tion process has become completely politi­cized.

And you know, if we’re honest, we’ve always had to force our insti­tu­tions to be account­able. And I think this circum­stance will be no differ­ent. We will continue to see protests. And I’d be remiss if I didn’t acknow­ledge Fannie Lou Hamer and her activ­ism on this day that celeb­rates her birth­day. We’re going to continue to need that type of agit­a­tion in order to force our insti­tu­tions and our elec­ted lead­ers to serve all the people. It will not be an easy task, but it’s one that we must commit to, and no admin­is­tra­tion is absolved from that respons­ib­il­ity.

WEINER: Thank you. I think we’re actu­ally running up almost to the two-thirds mark. So I’d like to pivot now maybe a little bit to solu­tions. And, Governor, I want to get to the Depart­ment of Justice. But as you noted at the outset, this is not just about DOJ, and it’s not just about law enforce­ment. And right now we are in a pandemic that is dispro­por­tion­ately affect­ing people of color, partic­u­larly Black Amer­ic­ans. And that dispro­por­tion­ate impact has come in no small part from, as the Bren­nan Center’s docu­mented, the mishand­ling and the abuses that have gone into the pandemic response.

So maybe could you talk a little bit about solu­tions? And I’m going to ask you a two-part ques­tion. One is to talk a little bit about some of the things we need to address. Then also, though, as, you know, a Repub­lican elec­ted offi­cial right now you are seeing Demo­crats talk more about these issues. But they do need to be bipar­tisan. We hope they’ll be bipar­tisan. You know, what are the prospects for getting some bipar­tisan agree­ment on some of these efforts to shore up guard­rails?

WHIT­MAN: Well, first, let me say that I think what we’re seeing has come into vivid relief. It’s ripped a Band-Aid off a wound that we’ve had for a long time in this coun­try, which is the dispar­ate way communit­ies of color have been treated, whether it’s where the money that they can get from the federal govern­ment, whether it’s where because they don’t have the polit­ical voice. You have envir­on­mental justice issues that are rampant because compan­ies were allowed to pollute in those areas, because they didn’t have a voice. This is some­thing that’s been going on through multiple admin­is­tra­tions and, unfor­tu­nately, is a real part of our history.

So, in a really perverse way, this might be a good time. I mean, it certainly is a time to address it. You can’t hide from it anymore. You have to recog­nize what’s happen­ing, and the import­ance of these people’s lives and their busi­nesses. And hope­fully it will mean that there will be more atten­tion paid to how discrim­in­at­ory we’ve been. I mean, there’s no other way to describe it. But we have been discrim­in­at­ing right along. And that’s a stain. That’s a stain on this coun­try.

But I do have some hope, both because the virus has brought this so to the fore and then also because you have groups like the Prob­lem Solv­ers Caucus in the House and the Senate — a bipar­tisan group, has to be even Repub­lic­ans and Demo­crats, no Repub­lican can join on their own or Demo­crat on their own — and they are respons­ible for a lot of the bipar­tisan legis­la­tion that’s coming forward. And of course, what the first two reports that we did, this task force did, many of them are embod­ied in pieces of legis­la­tion that have passed the House. Some have gone to the Senate. Some haven’t gotten quite that far. But they were all bipar­tisan. And so there is hope.

I think the biggest hope is going to be we’re going to have a change at the top of the admin­is­tra­tion, frankly. It’s going to be very hard to get beyond this without that. An unbridled second term for this admin­is­tra­tion scares me to death, and I’ve never been so afraid for our demo­cracy as I am today because those norms — the norms we’ve been talk­ing about — have been thrown out the window. But we do have decent public servants. We have a lot of them, and they do want to do the right thing. And given the tools and the kinds of things that were recom­men­ded in our reports, they have the abil­ity to do that. And you see that H.R. 1 had a lot of what we offered in it, and it was bipar­tisan.

And the big pieces of legis­la­tion that have really impacted the coun­try, any of the major ones — whether you’re talk­ing about Social Secur­ity, Medi­care, Medi­caid, Envir­on­mental Protec­tion Agency — they’ve been bipar­tisan, because the minute you have a totally partisan bill that relies solely on one party, the next time the other party gets into a posi­tion of power they undo it. And people are start­ing to under­stand that more, but it’s going to be up to the public. It’s going to be up to the public to bring pres­sure on their elec­ted offi­cials at all levels and say, we cannot continue like this. If you purport to be a Chris­tian, you have to think of what you do to the least among us you do also to me. We have to remem­ber those values of treat­ing people equally, how this coun­try was foun­ded — how the Repub­lican Party was foun­ded, as a party to free slaves as a major part of it. We seem to have left that totally behind.

But partic­u­larly young people today are coming together and saying we’ve got to make a change. We’ve got to care about climate change. That’s some­thing that’s going to impact us for forever, frankly, because we’re not going to stop it. We can slow it, but not stop it. And women. But we have to under­stand that we are at a very peril­ous place right now, and what we have seen in erod­ing our basic values have long-term consequences that are going to be hard to really analyze. But I do see now that we have to focus. We can’t hide from the discrim­in­at­ory prac­tices of the past.

And we’re seeing more pres­sure put on compan­ies and on local and state govern­ments. And that’s where the changes are really going to take place, at least initially. The federal govern­ment — the first thing anybody taking the oath of office this coming year, in 2021, should do is corral the virus. I mean, that has to be job number one, before you can get the economy back. But for the states, while that is import­ant, they’re also the ones that can take the steps on the other parts of this equa­tion and start to bring the kinds of change that we want to see through­out the coun­try and across the coun­try. They can’t ignore their constitu­ents because they live with them every day. You get to Wash­ing­ton and you kind of start to forget because you’re in a bubble, and that’s not some­thing we can accept anymore.

WEINER: And would you say that, in terms of corralling the virus, are there things we can do to protect the integ­rity of govern­ment science in partic­u­lar that’ll help us do that faster?

WHIT­MAN: Abso­lutely. I mean, first of all, we have to stop denig­rat­ing science and pretend­ing it does­n’t matter. We need to have a leader who says this is import­ant, this is the number one job, we are going to rely on the experts on this and scient­ists. And it’s got to be pure science, not direc­ted by a polit­ical end — not some­thing that’s because you want it to turn out this way, we’re going to torture it into this.

And fortu­nately, as happens with so many of the regu­la­tions at the Envir­on­mental Protec­tion Agency, you can’t just get up one day and say, eh, I don’t think arsen­ic’s a big deal, I’m going to take away the regu­la­tions on how much arsenic to which people can be exposed. No. You have to say this is the new scientific evid­ence that I’ve seen that tells me we’re in the wrong place with this partic­u­lar regu­la­tion. So when they have done all these roll­backs, when they have star­ted to disreg­ard that part of the process, when it gets to the courts even today the courts are strik­ing down the efforts to under­mine the science. And we can hope that that’s some­thing that is going to continue, because the regu­la­tions are pretty clear and the enabling legis­la­tion is pretty clear on how you address these issues, and you have to have some basis in science.

But it is going to take a direct­ive from the top that this is import­ant, that science is valued, and we need that trans­par­ency to under­stand that this is what the science really is saying, and then let people have a look at that. Obvi­ously, inter­pret­a­tions are going to be differ­ent depend­ing on your bias as you come to it, but they need to see that under­ly­ing science. And that has to be avail­able broadly to the community.

WEINER: Preet, before we go to Q&A from our listen­ers or audi­ence, maybe if you could just talk a little bit about some of the reforms that could help us bring the Depart­ment of Justice back. And there’s a bill, actu­ally, the Protect­ing Our Demo­cracy Act, that was just intro­duced that contains some of these thing that you can maybe speak to.

BHAR­ARA: Yeah. Look, the first thing I’ll say — and this was the whole thrust of a book that I wrote after I got fired by the pres­id­ent — policies are import­ant, codi­fy­ing rules are import­ant, norms are import­ant, but people are import­ant too. And you can have the best consti­tu­tion in the world, you can have the best crim­inal code in the world, but if you don’t have good judges and you don’t have good prosec­utors and you don’t have good defense lawyers and you don’t have good public press, all of those go to hell. And you know, some of the abuses that people talk about with respect to this admin­is­tra­tion or prior admin­is­tra­tions, in the main no law has changed. In the main — and not in the main, in total­ity — the Consti­tu­tion is the same. Most of the laws are the same. Most of the policies are the same, whether it’s a contact policy or some­thing else. What has changed is the person­nel who are involved and parti­cip­at­ing in all of those things. And if they choose to exer­cise their discre­tion in a way that does­n’t do good for the public and evis­cer­ates the rule of law and public faith in the rule of law and people being equal in the eyes of the law, then, you know, as Learned Hand once famously said, no consti­tu­tion, no law, no court can save it. That has to come from people.

So as an initial matter — I know people don’t love to hear this because it’s an amorph­ous thing — but the lead­ers in the depart­ment and the lead­ers in the Congress who over­see the depart­ment have to care about those values and have to care about what the spirit of those values are and incul­cate them among, you know, the entire, you know, group of people who’s at the depart­ment. Beyond that, there are some things you can do both to signal that these things are import­ant, whether it’s over­sight by Congress — and I used to work in the Senate, and we did some vigor­ous over­sight of the Depart­ment of Justice back in ’06 and ’07 and ’08 — but there are other things you can do.

And it seems to me that there’s another theme here, which is the protec­tion of people who are career and trying to do the right thing, whether they’re assigned jobs like the special coun­sel to try to figure out from a neut­ral perspect­ive — because there are too many conflicts of interest in the depart­ment — how to figure out who did what that was wrong, more protec­tion for people like that; more protec­tion for the inspect­ors general. I think one of the provi­sions in that act would give a for-cause stand­ard to fire inspect­ors general. That’s another thing we haven’t had a chance to talk about because there’s so much — that for the first time in 11 years an inspector general was removed, and then there were five in total — by the pres­id­ent of the United States on the ground that basic­ally he just lost confid­ence. And so, among other things, the protec­tion of special coun­sels, the protec­tion of inspect­ors general, and the protec­tion of ordin­ary rank-and-file people — even high-rank­ing people — in the Depart­ment of Justice.

As some of you may famously know, the day before I was asked to resign, the pres­id­ent of the United States called me directly, the United States attor­ney in the south­ern district of New York — I had never been called by Barack Obama, I’d never been called by any pres­id­ent — presum­ably to talk about some­thing. I’m not sure because I never returned the call, because I observed the norm that a polit­ical person like the pres­id­ent of the United States should not be engaged in a direct conver­sa­tion with the United States attor­ney without the involve­ment of any other people, includ­ing the attor­ney general, when among other things my office had juris­dic­tion over his home, his resid­ence, his busi­ness, his char­ity, all sorts of other things. No good could come of that.

So you need a contacts policy. And for people not famil­iar, there has been writ­ten guid­ance for some time — and it gets revised from time to time — that makes it clear that certain people in the White House cannot talk to any but a very, very select small number of people in the Justice Depart­ment. Certainly, a pres­id­ent or a vice pres­id­ent should­n’t be call­ing a local United States attor­ney, and there are provi­sions in the bill and in our propos­als from the task force that require report­ing to Congress with respect to those contacts so that there can be some over­sight.

So those are a couple of things. They don’t replace the integ­rity of the people. They’re not a substi­tute for the integ­rity of the people who are respons­ible for over­see­ing the system, but they’re a start.

WHIT­MAN: And those same protec­tions should apply to scient­ists, too. When they find [things that don’t match] what the admin­is­tra­tion wants to hear, we need to have protec­tion for them, and the Scientific Integ­rity Act that we have talked about has a lot of that in it. And that’s some­thing else we need to do, but, as Preet says, it relies on the people, ulti­mately, those who are going to enforce these things and are going to watch these things. We can put those barri­ers in place. We can go for that trans­par­ency. But we really have to have the people who are will­ing to enforce it and to stand up.

VERRILLI: If I just add a quick note on that. You know, I think we’re going to be, I hope, a few months from now in a moment like the post-Water­gate moment where Congress enacted a lot of stat­utes to try to respond to the corrup­tion and lawless­ness that became well known out of the Nixon admin­is­tra­tion, and as some­body in the exec­ut­ive branch many years later, I thought those laws, like the Ethics in Govern­ment Act and FOIA and the Privacy Act and all those, made my life more diffi­cult and they were frus­trat­ing.

But they were really import­ant and they were symbol­ic­ally really import­ant because, as the governor and as Preet have said, and I 100 percent agree, at the end of the day, you have to have people of integ­rity in these posi­tions who believe in the rule of law and believe in these norms, believe they’ve got to fight for them. But it also matters, I think, to us as a coun­try — both prac­tic­ally but also symbol­ic­ally — when Congress takes a step like enact­ing laws in the post-Water­gate era, Congress is saying, “These are our values. This is what really matters to us as a coun­try.” And so I do think it will be import­ant for Congress to do that again, and hope­fully, we’ll be in a posi­tion for that to happen during 2021.

WEINER: So we are almost out of time. Before I go to the last ques­tion, which is from the audi­ence, I want to just take a quick moment to acknow­ledge there are many, many Bren­nan Center staff who contrib­uted to this event. I want to briefly just note my colleagues Rudy Mehrb­ani, our fellow, Martha Kinsella, Gareth Fowler, and Julia Boland, who really worked tire­lessly. Also, our crack event staff led by Mellen O’Keefe and Adrienne Yee. You know, these events over Zoom actu­ally are time consum­ing and they really worked very hard. So I want to take a moment to acknow­ledge them.

And, you know, to finish I’m going to leave you all with, and hoping all of you can comment, just briefly, on one ques­tion that we got, which is there’s been some criti­cism of the current admin­is­tra­tion during this call, and we’re a 501(c)(3) organ­iz­a­tion and the impetus of this project, I do think, has always been, though, that these need to be bipar­tisan concerns.

So I’d like to just close out with maybe a thought about why, no matter who is pres­id­ent in Janu­ary 2021, we need to keep these issues front and center and we need to make them a prior­ity.

And Janai, maybe I’ll start with you.

NELSON: Sure. I’m really glad that we got that ques­tion because to suggest that the dysfunc­tion and dysto­pia in which this coun­try is presently engulfed is the fault of a single pres­id­ent or a single admin­is­tra­tion is, one, to credit them too much, and two, to danger­ously over­sim­plify the complex history of racial caste in this coun­try and how deep-seated its roots are, and the revolu­tion of imagin­a­tion that it will take to trans­form this coun­try into some­thing truly deserving of being called a multiracial, multi­eth­nic demo­cracy.

We have an oppor­tun­ity at this moment because of the conflu­ence of issues that are facing our coun­try — not just the frailties of this admin­is­tra­tion but also because of the shared suffer­ing that the pandemic has imposed on all resid­ents of this coun­try. Also, because of the new illu­min­a­tion that mass protest has provided to some of the deep­est inequal­it­ies that still plague our soci­ety, we have an oppor­tun­ity for a third recon­struc­tion that encom­passes issues of racial justice, demo­cracy, and many other ways to strengthen our soci­ety through science, look­ing at climate change, look­ing at all of the ways in which we have linked destinies.

And so I think it’s import­ant that we recog­nize that this is beyond party. This is beyond any faction­al­ism. This is about our shared human­ity. And if we don’t see it in that way, we will continue down this very danger­ous path. But I am rather hope­ful. Often out of these moments of tumult and these moments of struggle we see some of the most prom­ising trans­form­a­tion in our soci­ety, as we continue to advance towards really inhab­it­ing the full poten­tial of our demo­cracy. So I remain hope­ful. And I look forward to continu­ing this type of discus­sion as we head in that direc­tion.

WEINER: Don, do you want to go next?

VERRILLI: Yeah. You know, in fact, if there is a new admin­is­tra­tion in 2021, I think it’s going to be more import­ant to focus on the norms and values that we’ve been talk­ing about today and the Bren­nan Center has done so much amaz­ing work to promote. Because I think with a new admin­is­tra­tion there is going to be enorm­ous pres­sure on it — first of all, I think there’s going to be enorm­ous pres­sure on it for retri­bu­tion against the old admin­is­tra­tion. I think there’s going to be enorm­ous pres­sure on it to make funda­mental changes very fast, in ways that our lawmak­ing system maybe can’t accom­mod­ate under the Consti­tu­tion. And that there’re going to be a great tempta­tion to embrace the argu­ment, well, look what these other SOBs did. How can you possibly say that we can’t take these steps ourselves when we’re actu­ally doing this to make things better?

And they might be doing it to make things better. But I do think that the prob­lem with norms and values and rules is that you can get into a down­ward spiral. One side cheats, the other side feels like it’s okay to cheat, and then it gets worse and worse. And so I do think that kind of vigil­ance with respect to the new admin­is­tra­tion, partic­u­larly in the early months and year, is going to be quite import­ant.

WEINER: Governor, why don’t we go with you, and then Preet you can have the last word.

WHIT­MAN: Well, I mean, it would be nice and easy to blame it on one admin­is­tra­tion. That’s just conveni­ent. But unfor­tu­nately what this has shown us is how deep these issues go. And the dysfunc­tion that we’ve seen in Congress over the last decades can be laid at the feet of both parties. We have allowed this to happen also. It’s our fault because we allowed it to happen by not parti­cip­at­ing in elec­tions and primar­ies, when the voter turnout is 10 or 12 percent. That isn’t giving you candid­ates for the fall that reflect the major­ity of people. It gives you candid­ates in the fall who reflect the most partisan of their partic­u­lar party who got them those nomin­a­tions.

So we have to look in the mirror and have to under­stand that it’s both parties. And it’s been admin­is­tra­tions over the past. Racism didn’t just happen. This has been, unfor­tu­nately, a part of our history for a long time. And I don’t believe there’s been any admin­is­tra­tion that’s fully faced it — Repub­lican or Demo­crat — and taken it on and tried to address it in ways that it should. And the same thing with all the issues we’re talk­ing about. This has been a gradual process; it just may be more highly illu­min­ated and suddenly moving faster, blow­ing aside those norms than we’re used to, than we’ve seen in the past. But it is not just one party. And it’s not just one person. That’s too conveni­ent, too easy. And it absolves us of having to do much, should the admin­is­tra­tion change in the fall. And that would be a devast­at­ing mistake.

And I could­n’t agree more with what Don was saying. What we have to be really be care­ful of is retri­bu­tion from one side on the other. They did it, so it’s okay for us to do it. And some­body’s got to rise above that partis­an­ship and show real lead­er­ship, and show what the coun­try is truly about, and serve the coun­try rather than their party.

WEINER: Preet.

BHAR­ARA: Rare. I’m broad­cast­ing from my home, and in my own home I never get the last word, so thank you. I appre­ci­ate it. (Laughter.)

Look, I’m actu­ally fairly optim­istic if there’s a new admin­is­tra­tion about bipar­tisan support for some of these reforms, because a lot of these abuses we’re talk­ing about — you know, many of them have occurred before. I think not to a degree that we’ve seen in the last four years. There have been bad pardons before — see, e.g., Marc Rich and Bill Clin­ton. There has been nepot­ism before — see, e.g., Bobby Kennedy. There have been lots of things that had happened before. I think in this time­frame to a size, and scale, and scope that we’ve not seen before.

But it is going to be true, I think, if human nature is what I think it is, that once this admin­is­tra­tion ends, Repub­lic­ans who were prepared to keep their mouths shut because of fear of attack by the pres­id­ent or some­thing else are not going to want a future Demo­cratic pres­id­ent, billion­aire or not, to be able to engage in these abuses that they know in their hearts and their minds were, in fact, abuses, right? Repub­lic­ans are not going to want a future Demo­cratic billion­aire or real­ity star or whatever, you know, future popu­list you might imagine, perhaps demagogue, to be able to get away with having all sorts of finan­cial entan­gle­ments, or take advant­age of the emolu­ments that they’re not supposed to take advant­age of, or be able to hire their daugh­ter and their son-in-law and keep them in the White House without the abil­ity to really hold them account­able just because you don’t pay them a salary, or all sorts of national secur­ity abuses, or be able to fire inspect­ors general with no explan­a­tion at all and completely without consequence. That’s a thing that every­one is going to care about when the shoe is on the other foot.

And so I think there is an oppor­tun­ity in a new admin­is­tra­tion for both the Demo­crats, who I hope don’t do what Don, you know, worries about as well, and say, well, now it’s our turn — (laughs) — and we should be able to do whatever we want — and under­stand that, like in the post-Nixon era, it’s to every­one’s advant­age to curb the things that — on a bipar­tisan basis, I think people will be more open about this without fear of attack from the pres­id­ent and say, these are a few quick things we need to fix: the contacts policy, inspect­ors general, nepot­ism, oh, the exer­cise of the pardon power, you know, giving some explan­a­tion. It is not going to be true that Repub­lic­ans in the future will be fine if a Demo­cratic pres­id­ent starts pardon­ing members of his family. It’s just not going to be accept­able. And I think once we get on the other side of this, my hope — maybe it’s naive — my hope is that people will see the sens­ib­il­ity in all this and we’ll get some­thing done.

WEINER: Thank you. And on that note, we are out of time. On behalf of the Bren­nan Center for Justice I want to thank our outstand­ing panel for a really wonder­ful conver­sa­tion and I want to thank every­one who is watch­ing this discus­sion. Thank you all and have a wonder­ful day.

BHAR­ARA: Thanks, folks.

WHIT­MAN: Thank you.

VERRILLI: Bye.

NELSON: Thank you.

Upcoming Events

  • This is a virtual event
    Wednesday, July 6, 2022

    Revenue Over Public Safety

    Speakers: Carmen Best, Lisa Foster, Ram Subramanian, Que Williams, Laura Coates