Stay Tuned Transcript: Quitting the DEA After a Career Doing Justice (with Chuck Rosenberg)

Stay Tuned Transcript: Quitting the DEA After a Career Doing Justice (with Chuck Rosenberg)

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

STAY TUNED: Quitting the DEA After a Career Doing Justice (with Chuck Rosenberg)

Preet Bharara: Chuck Rosenberg, thanks for being on the show.

Chuck Rosenberg: Oh, it’s my pleasure.

PB: You and I have known each other for a long time and I want to say I’ve admired your career for a long time. You’ve done a lot of different jobs. Let’s just start with this, your most recent job was as acting administrator of the DEA.

CR: That’s right.

PB: The Drug Enforcement Administration. And you left that job. How come?

CR: A couple of reasons. One, Preet, is I didn’t want to stay too long. I think people sometimes stay too long at a job and there’s a value in having someone else come in and kick the tires, frankly. Did I get things right? The changes that I made, do they make sense? I don’t know. I think so. That’s why I made those changes. But, there’s a value to an organization in having someone else come in and take a look. But more immediately, Preet, I was pretty upset with some of the things I was seeing. I’m not a political guy, I never have been and I don’t intend to be. I was concerned about some of the things I was hearing, in particular the president’s statement to a group of police officers in Suffolk County, that it was okay to mistreat defendants. I sent out an email to everybody in the DEA stating my position and I knew after I wrote that, although it was incredibly liberating, that it would be time for me to go.

PB: This is a question people keep asking and it comes up on the podcast from time to time. Is it better to stay in a position, exert influence and change things and do a good job? I had to face this decision also when I decided to stay as US attorney. It was short-lived but I decided to stay at one point. Or is it better to leave? And if you leave, do you talk about it or do you not? Just because you were upset about some of the things that were being said, why did that cause you to actually decide to leave?

CR: Well, again there were two reasons for leaving. This was only one of them. That’s an incredibly individual decision. I don’t know that there will ever be a one size fits all answer to that question and frankly I wrestled with it. I struggled with it. I’m still not sure I got it right. There’s something to be said for staying and fighting. There’s something to be said for folding up your tent. But after two and a half years, I decided to fold up my tent. Now, there’s another piece to that, Preet, which is that my deputy administrator is phenomenal. I had complete confidence in him. He is a terrific person. He cares deeply about the agency. He came up through the ranks. And frankly, I thought he would do a better job than me in running it.

PB: It’s been reported, for example, that Don McGahn was asked by President Trump to cause the firing of Bob Mueller. And it’s been reported, I don’t know if it’s true or not, that Don McGahn said, “I’ll resign if you push that.” And apparently Donald Trump backed down, if you believe the reporting. Was that appropriate, if true?

CR: It’s possible that it’s true. If it’s true, it’s appropriate. If he felt that, for him, that was the rubicon, he couldn’t do that one thing, and if he was forced to do that one thing he would leave. A very individual decision. But, if Don McGahn, and I don’t know the gentleman, were threatening to resign seven times a day, he would lose some credibility. Something could happen and Don might believe– I shouldn’t call him Don, cause I don’t know him– Mr. McGahn would believe that that’s it. He really either has to have his way or he has to go. That’s fine. That’s his call. But I don’t think you do that lightly and I find it hard to believe that everyone is threatening to resign as often as we hear.

PB: What about on the issue of, if you’re disparaged publicly in a high profile way by your boss? So if you were Jeff Sessions during that period where the president was stating publicly on a fairly regular basis how upset he was, how angry he was? Reports came out that he yelled at him for doing the one thing the career people told him to do which was recuse himself from the Russia investigation for obvious reasons. And it looked like he had no confidence in the attorney general. Do you still show up for work?

CR: Yes, but I think you left out an important question. Did Mr. Sessions feel like he had done the right thing? And if the answer to that is yes, then you show up the next day and you do your job. If the answer to that is no, if he had really messed something up significantly or repeatedly and he was drawing that same criticism, maybe the analysis is a bit different.

PB: How did you feel, as a person not as a head of a law enforcement agency, when you heard the president sort of casually discuss how cops should mistreat defendants when they’re putting them in the squad car or that kind of thing?

CR: Disgusted.

PB: Are people surprised that a person who’s in law enforcement was disgusted by that? I think there’s a little bit of a misunderstanding about how federal law enforcement officials think about their jobs cause I hear people, all the time, say, when they describe what the job of a federal prosecutor is, or a cop or a DEA agent, and they say their job is to put people in prison. Is that the job?

CR: No, that’s not the job.

PB: What’s the job?

CR: The job is to do justice. And sometimes that means convicting someone and seeking a jail term, and sometime that means walking away entirely from a case. Doing justice is our job, not putting people in prison, and certainly not mistreating the defendants that we encounter.

PB: Do you think some people, though, in law enforcement, were encouraged and cheered by the president’s admonishing not to be coddling to defendants?

CR: Well, there’s some people who believe the earth is flat, Preet. There’s a lot of people in law enforcement and they run the gamut. There’s a bell curve that describes all sorts of human traits and I have no doubt that there’s a bell curve that describes people in law enforcement. But let’s talk about sophisticated, thoughtful people in law enforcement, state, federal, local. I presume that they shared my disgust. I presume that they don’t condone that type of behavior in their departments. I know we don’t condone it in federal law enforcement. And I can only speak for myself, but I was disgusted.

PB: What kind of support do you think elected officials, mayors, governors, presidents, should give law enforcement? Should they just stay the hell out of everything having to do with law enforcement? That’s not possible because public safety issues are things that elected officials are supposed to be thinking about. They fund and decide what resources to give to local police departments and to the federal agencies. Do you have a view on what elected people should be saying or not saying and how they should be helping the cause of law enforcement?

CR: They ought to ask hard questions, because we’re not perfect and we get stuff wrong. We are responsible to them. We are accountable to them, just as we’re accountable to all citizens. They shouldn’t give us a blank check, either literally or figuratively. But if you’re going to criticize us, and sometimes the criticism is appropriate, try to understand what it is we do and how difficult the job is. We are fallible. We make mistakes. We try to fix them ourselves. And sometimes, I think, the criticism of law enforcement takes on an overtly political tone.

PB: What do you mean by that?

CR: Typically, at least in my experience, whether it’s in the US Attorney’s Office or the FBI or the DEA, wherever I’ve been privileged to serve, those mistakes, in my experience, have always been down the middle mistakes. They haven’t been because we’re trying to favor one side over the other. We get stuff wrong, but we’re not trying to tip the scales.

PB: If a politician, and here I’m thinking about, obviously, the president who has been saying a lot of things, if he perceives that law enforcement has been unfair, like a lot of targets, you and I have experience with this, targets don’t like to be investigated. And if you have a forum and a platform and bully pulpit, and there’s no bigger bully pulpit than the president, they attack the prosecutor. It’s happened to me, I’m sure it’s happened to you. It’s not new. If it’s a democracy, and free speech is accorded to everyone, what’s wrong with a president who, like any other high profile defendant, doesn’t like to be investigated attacking the agencies?

CR: The president is not quite like any other high profile defendant. Implicit in your question is the answer. He has a bully pulpit that nobody else has. He has a forum that nobody else has. He’s free as a private citizen to criticize whatever he wants to criticize. He’s even as the President of the United States to criticize whatever he wants to criticize. But it has to be thoughtful. And it has to be with an eye toward the fact that federal law enforcement agencies, the FBI, the department of justice, are part of his executive branch. If there’s really, truly a problem, then there are lots of ways to fix it. Simply castigating these folks in public for trying to do their job is not a way to fix it.

PB: I wonder if this is what goes on in President Trump’s head. And I haven’t heard anyone say this, but it occurs to me he might be saying, “Well that’s a very good argument, Mr. Chuck Rosenberg, that people attack institutions and obviously, as a consequence, it undermines people’s faith in those institutions. But you know what? The presidency is an institution also. and I was duly elected by the people of the country. And every time I open up the paper or go on social media, I’m being attacked. My family is being attacked. The presidency is being attacked. And nobody seems to have a lot of concern about the undermining of that institution. So why can’t I give as good as I get?”

CR: He might think that way. It’s hard to know precisely how he thinks. I would suggest, Preet, that that is not coming from Bob Mueller or the men and women working for Bob Mueller. They’re keeping their heads down and doing their jobs, best I can tell. And so, he might be upset. He might be concerned. But he is nevertheless undermining the work of law enforcement.

PB: When you were a US attorney in Texas and in Virginia, did you ever get attacked publicly, or your office, for cases that you investigated and then brought, and how’d you deal with that?

CR: It happened occasionally, and I dealt with it by ignoring it.

PB: Did it bother you?

CR: On a personal level? Sure, it’s hard to ignore these things sometimes. On a professional level? No, not really because I felt in my heart of hearts that we were going about our business in the right way. And I would add to that, Preet, that we’re really not in a position to respond to every single attack. When we talk, we talk in court. If we have something to say, we say it in a courtroom. That’s how we do our business. And so, we’re all human. Sure, it bugs us. But sometimes you just have to keep your mouth shut.

PB: The reason I ask that question is, a lot of people have a high opinion of Bob Mueller. Some people don’t. You and I are both in the camp of having a high opinion of Bob Mueller.

CR: And I had the privilege of working for him.

PB: And when people get asked the question about him, when he gets criticized and his character assassination, everyone always answers by saying, “Bob Mueller ignores it. Doesn’t bother him. He doesn’t pay attention to it.” And so, I wonder if that’s really true. You separated out how you felt about it professionally versus personally. Not withstanding Bob’s status as almost superhuman according to some people, he’s still a human being. It must bother him on some level or do you think no?

CR: He might be the one guy who it doesn’t bother. Having worked for him for about a year, a little more than a year right after 9/11, I can’t imagine a person under more pressure than Bob Mueller. And I’ve never seen anyone wear it so gracefully. And so maybe at some level it does both him, maybe he tells somebody about how he feels, but all I saw at work every single day was a guy doing his job. And usually, for six and a half days a week, eighteen hours a day, if it bothered him, I never saw a manifestation of that.

PB: I sometimes wonder, when you’re at the top of an organization, you’re the US attorney or the head of the DEA or chief of staff to the FBI director, and you see this political nonsense happening at the high level, does that really affect how the line prosecutor who’s going to the neighborhood and interviewing witnesses in the push-in robbery case feels about the job, and how they do the job? You’re at a high level, I’m at a high level, and we think about this stuff a lot and have to deal with it. You have to be the spokesperson for your agency. But you know what? The grinding, difficult, laborious work that is in the pursuit of the right thing at the line level, in court, where it’s gritty and the rubber meets the road and all of that happens, does it matter or not?

CR: Here’s how I would break it down, Preet. You can still be mission-focused, you can still be mission-oriented, you could still be going to the neighborhoods to interview witnesses and into court to present your case and doing it just as hard as you’ve always done it, with all the things we expect our line prosecutors to do, and it can still bug you. You can still be disgusted. It can still undermine your morale. And so, if the question is, are these folks still doing their jobs? The answer, I think, is: absolutely. If the question is, does it affect them in some way? The answer, I think, is: absolutely.

PB: What’s your advice to them? So, you left the DEA for a particular reason. If, in that same week, three young people came to you and said, “I’m interested in law enforcement. I believe in the mission. I want to help the public. I believe in public safety. I’m thinking about applying to the DEA.” What would you say to them?

CR: I would say, “Do it,” in a heartbeat.

PB: How do you explain that?

CR: Right. So, it seems a little contradictory. I get that. But when I think back on my career, I would not have changed a thing. There are high points and there are low points, but the arc of that career was better than I could ever have imagined. And so, right now I think we’re in a particularly difficult time. But that’s only a data point. That’s all. And over time those data points get smoothed. So when I think about what I got to do, the privilege and responsibility that was handed to me, if somebody asked me would I do it again, the answer is: yes. And if someone asked me, should they do it, the answer is: yes.

PB: Don’t you think every agency has problems?

CR: Sure.

PB: What were the big problems–

CR: Well, I would say it broader than that. Every place where you have more than one human being–

PB: Yeah, even sole proprietorships have problems too.

CR: Sole proprietorships have problems. But you put two or more people in a room and you will have problems.

PB: And the power that folks in law enforcement have is greater than in a mom and pop store. How do you make sure, cause this is an issue we talk about and it’s a legitimate issue whatever side you’re on on a particular matter, how do you make sure, given that people are people, that there’s no bias in how someone does an investigation? I think that’s a central question that we have. And if you have examples from your own time in your various jobs of when you spotted bias or you were concerned about the appearance of bias, that seems to be an important issue at the moment.

CR: In fact, I think the notion of implicit bias is really an important thing for all of us to embrace. You may have a view of me that is, sort of, at the surface. You may have some thing you think I am or believe that I think in a certain way based on how I look, where I grew up, where I went to school. You may not even be able to articulate the bias that you have but nonetheless it’s there and perhaps helps you to form some of your decisions or your opinions about me. We all carry some implicit bias. I think we need to understand that. I think we need to confront it. And it’s a hard thing to do.

PB: How do you do it? There have been movements over time to have bias training or discussions of implicit bias at law enforcement agencies. I think that was beginning to happen right before I left office. Does that work, or is that sort of liberal mumbo jumbo like some people think?

CR: I think it works. I would have like to have seen it mature a bit. I think there’s a value in discussing it. Now, I’m not sure we’re going to change the hearts and minds of everyone. But there’s some number of people who are open to it and who will benefit from those discussions. Look, we all carry biases. Some of us try really, really hard to never act on those. But we all carry them.

PB: What about political bias? So, there’s been a lot of debate lately about whether or not certain FBI agents had it out for the president and that might have affected their conduct. That’s legitimate to be asked. But in any law enforcement agency, people are citizens, not just law enforcement agents, and they don’t always check their politics at the door, I guess. What’s the line between being allowed to have a political opinion in your head and whether or not you can work on a particular kind of case?

CR: So I actually do think people tend to check their political views at the door. And that’s informed by my own experience as a line prosecutor for many years in the Eastern District of Virginia. We never talked about politics, and I can tell you I never knew how anyone else thought or voted or donated in all the time I was there. Now, I do remember an instance once when someone must have been driving someone else’s car into our garage because walking out one day, I saw a bumper sticker for a particular candidate on the back of someone’s car. I don’t want to overstate this, Preet, but it was a little startling. I still don’t know what my colleague’s views are and whether they were just borrowing a car or whether they subscribe to that view, but I had never seen that in my office before. And if you think about that, it’s actually kind of cool. We left politics at the door.

PB: So that’s one way, in a bad way, that your personal attitude about something can affect how you do your job. But another thing happens when you prosecute cases, particularly violent cases, and you have prosecutors and agents who get very passionate about it because there’s a victim, somebody was killed, somebody was harmed, or someone is in fear. Is the prosecutor or the agent supposed to always have a detachment from the case, or is it okay to get sort of angry, deeply moved by the victims such that it drives you forward to try to hold the person responsible, accountable? Do you know what I mean?

CR: I do know what you mean. We’re not robots. It would be impossible to factor out those emotions. We see lots of victims: elderly people who have been defrauded, young folks who have been molested or abused in some way. We see lots of bad stuff and it would be crazy to think that we don’t have a reaction to that. It’s okay to have that reaction. It’s okay to cry. It’s okay to laugh. It’s okay to do all sorts of things. What you can’t do is break the rules. What you can’t do is let that emotion sort of overcome your judgment when it comes to providing discovery or playing by the rules.

PB: Right. Well, what about something else? What about how it goes to bias, and whether or not in zeal, to get the bad guy because of the crushing loss to the victims, you rush to judgment a little bit?

CR: That’s where you have to be careful. And that’s where you have to bounce things off of other people. So, you don’t tend to prosecute or investigate in a vacuum. Agents have other agents around them. Prosecutors have other prosecutors around them. We have systems in our offices to make sure that we are not doing what you just described.

PB: Did you ever have a case that made you cry?

CR: Sure. 9/11.

PB: By way of background, 9/11 obviously was one of the worst days in modern American history, maybe the worst day. And it affected multiple places, including obviously the Twin Towers in Manhattan, which is located in the Southern District of New York, but also the Pentagon. And when one of the terrorist planes crashed into the Pentagon on 9/11, what was your job?

CR: I was in private practice. It was one of the two times that I was at a law firm and I decided that day that I was going to quit and go back into government. And that’s how I ended up working at the FBI for Bob Mueller. So, in the aftermath of 9/11 I worked on the staff of Bob Mueller at the FBI, on the staff of John Ashcroft when he was the Attorney General, on the staff of Jim Comey when he was the Deputy Attorney General, and then somewhat ironically, later, as the United States Attorney for the Eastern District of Virginia, the place I started as a prosecutor and the place in which the case against Zacarias Moussaoui, the 9/11 conspirator, was being brought.

PB: So Zacarias Moussaoui was someone who was prosecuted jointly by my old office and your old office. Remind people who he was.

CR: He was part of what Al-Qaeda hoped would be a second wave, people who were trained in much the same way. Some of the hijackers were trained to fly commercial airliners into buildings. He was arrested in Minnesota. He had trained in Oklahoma. And he was the only person ever brought to trial in federal district court, civilian court, in the United States in connection with the attacks of 9/11. As part of that, Preet, the FBI and the men and women from your office and my office interviewed hundreds of families who lost loved ones, hundreds of victims, in order to present at trial, at the sentencing phase, a story of that loss. And it was heartbreaking. And I sat in the courtroom every single day as the US attorney with tears rolling down my face. It’s almost impossible not to cry when you listen to these stories of loss and of devastation. That’s not the only time that happened to me. It’s happened to me other times. But that is certainly of a different scale.

PB: I had similar experiences. What did you say to the victims? What did they want from you?

CR: There isn’t one answer to that. I’m sure you found that as well, Preet. Some of them wanted to talk about the person they had lost. Some of them had technical questions about the proceedings. Some of them were awkward. Some of them were outgoing. Some of them laughed. Some of them cried. Everybody reacts a little bit differently, and so you take them as they come.

PB: Did you ever wish you didn’t have to go through that process, cause it was so painful?

CR: No. In fact, it was a privilege to go through that process. It was a privilege to be part of that case. Now, I came in as US attorney toward the end, I don’t want to overstate my role. I had worked on it in those other jobs, but I came in toward the end as US attorney. And it was, for me, a defining case. I remember as a little boy going down to the World Trade Center with my dad, who worked on Dey Street. He was a customs house broker. And my job would be to run documents back and forth from his office into one of the towers where the US Customs offices were.

PB: Did he pay you for that?

CR: He didn’t. He didn’t.

PB: That’s cool.

CR: He was a great dad and I miss him. But no, he didn’t pay me. But we would sit out there and have lunch together in the plaza of the World Trade Center. That was his office for years and years and years. He was alive when those attacks occurred. And like many people, not just in New York but around the country and around the world, it broke his heart. And so to be a part of that was an enormous privilege.

PB: You know, it’s a very difficult issue, and you and I were both federal prosecutors so we probably had a bias for that reason, although I think it’s the right call, but presumably we had a bias in favor of civilian trials for people who engaged in that kind of horrible conduct. And there are other people who say, “Well they’re not criminal acts, they’re acts of war.” There’s an argument for that. And so, unlike Moussaoui, those folks who were responsible should be tried in a military court, military tribunal, and shouldn’t appear in civilian court. Do you have a view on that?

CR: I do, not surprisingly, and my view is similar to yours. I am very strongly biased to the system in which I grew up, to Article III Courts, to a known and transparent set of rules and regulations, and, by the way, to a legacy of success. So not just Moussaoui, but if you look at the Southern District of New York, the Eastern District of New York, the Eastern District of Virginia, the Northern District of Illinois, those offices that typically bring the big cases, we have had a legacy of success in these cases that I think it unmatched. Now, that’s not the reason to do it, but it’s a reason not to fear bringing terrorism cases in civilian court.

PB: But here’s the problem with that, and I agree with it but I just want to take the other point of view, I think there are some people who do fear it because the civilian system does have some protections for the defendant, whether it’s a bank robbery defendant or an embezzlement defendant or a terrorism defendant. So, as you know, when you go to trial against someone, it’s not a foregone conclusion what’s going to happen. And you could get an acquittal, and then somebody who you believe, there’s overwhelming evidence, killed people in America as a terrorist walks free. That’s how the system is supposed to work. Imagine a terrorist got charged, and the public view was the person had done it, and was acquitted for some reason. What do you think would happen to civilian trials after that?

CR: So, what gives that system of civilian trials such strength and credibility is precisely what you described. The fact that it’s transparent, the fact that there are rules to protect defendants, and the fact that the United States government can lose in it own courts. That’s actually unbelievably cool, if you think about it, that there’s no presumption that the United States is going to win in its court because it’s the United States. If you don’t have the evidence, and you don’t have the law, then you’re going to lose. And that’s how it should be. And so, you always run the risk of acquittal but the track record is incredible strong because we bring good cases with lots of evidence. And if you do lose, you might feel awful. It might be, in your mind, an unjust outcome, but that’s okay. That’s the price we have to be willing to pay. It doesn’t happen that often, by the way, as you know. The conviction rate is in the mid to high 90% range, and for terrorism cases I think your office and mine have had enormous success.

PB: That’s true. Look, but I’ll say frankly, we had a terrorism case under my watch. The trial happened under my watch, the crime happened many, many years earlier. It was the bombing of the embassies in Kenya and Tanzania. And the only person ever brought to trial out of Guantanamo Bay in Cuba was Ahmed Ghailani, who was charged as a participant in those bombings. We, under prior administration in my office, convicted four people of those bombings, but then this other person was in Guantanamo Bay. And after I became US attorney in 2009, he was tried on over 200 counts, 224 people I believe died in the bombings in Kenya and Tanzania. And I sat in the courtroom when we heard there was a verdict and count one, not guilty, count two, not guilty, count three, not guilty, count four, not guilty, and I started to almost pass out and looked at the criminal division chief, Rich Zabel, who was sitting next to me, thinking, “What on God’s earth is happening?” Count five, guilty. And then count six through two hundred-something, not guilty. Now, at the end of the day, that was sufficient to get him life imprisonment. He’ll never walk free again. And that’s the right result. But I don’t know what went on to cause there to be only one guilty conviction out of so many counts, and I think that freaked out a lot of people, and is one of the reasons why some folks didn’t want to see Khalid Sheikh Mohammed brought into a civilian courtroom.

CR: I understand that. Can I ask you a question, even though it’s your podcast?

PB: Yeah, please.

CR: Would you have done it any differently?

PB: No.

CR: Why?

PB: Because all we did in connection with that case, and it began, obviously, before I got there, was figure out the most aggressive way within the law to prove our case. Now, there were some obstacles because Ghailani had been treated in a particular way and there was a lot of motion practice with respect to his treatment. But we put our best people on it. We had the best agents on it. We followed every rule. We had a great judge, Judge Kaplan of the Southern District of New York, who’s presided over a lot of these kinds of cases. And everything that people did in court was done aggressively but honorably and within the rules, and I think it’s a testament to their professionalism, dedication, and commitment. But people were in a little bit of a daze after that.

CR: Well, for your listeners, even with that one count of conviction, Ghailani got a sentence of life imprisonment. Let me ask you another question. Had he been acquitted on all charges, would you have done anything differently?

PB: No. But boy, would that have been a bad day for a lot of things.

CR: But bad days happen, and that’s the cost of doing business. We know that when we go into court with good cases, we sometimes lose. But that’s okay. That’s the tradeoff we make in our system. It doesn’t happen that often, and fortunately it did not happen in the Ghailani case. But I think we have to, as a society, be willing to accept that risk. In fact, we are.

PB: Or you could keep them in Guantanamo Bay indefinitely with no trial and not have to worry about it.

CR: It makes me crazy to see what’s not happening in Guantanamo Bay. My strong preference would be for those cases to be tried in the United States, preferably in the Eastern District of Virginia, but the Southern District of New York would be a good backup.

PB: We were supposed to do, Khalid Sheikh Mohammed was going to be tried jointly by your old office and my old office.

CR: Right. I think these cases should be in federal criminal court in the United States of America under the rules that you and I know and love. And sure, there’s always a risk. There’s a risk that someone is acquitted. But it’s much more likely that the cases will be resolved and they’ll be resolved in a fair and transparent way. And that fairness and that transparency gives our system of justice enormous credibility around the world.

PB: The toughness of that debate, by the way, of whether or not it should be in civilian court or in Guantanamo Bay, is amplified by the lack of full consensus on the part of the victims. Your office, my office, we both have met and spoken with a lot of victims of 9/11 and there are a healthy number of them who want closure and want the vindication that is owed to them under any system of justice in the world of seeing the wrongdoers be tried, convicted, openly, publicly, and then get the punishment that they deserve. But there are also a lot who don’t think that, and who have a different view from your view, and think that they should remain in Guantanamo Bay and have that process. And they’re entitled to that view. And in particular, they’re sort of entitled to that view and that view should be respected because they have suffered more than we lawyers who didn’t lose someone in the tragedy. How do you talk to those folks?

CR: There’s no question that they have suffered loses that we can’t imagine, and I agree that their views have to be respected. Let me talk about victims more broadly, and not just about the victims of 9/11. You and I have both met with lots and lots of victims in all sorts of criminal cases, and they often have strong views over what should be done or what sentence should be received or how someone should be charged. And we try and take that into account, and we talk to them, and we explain things, but we’re not always on the same page and we never will be always on the same page. And sometimes we have to substitute our judgment for their passion. We have to explain it. We owe that to them. We owe them that dialogue. We owe them the benefit of our rationale. But in the end, we’re the ones paid to make legal decisions based on the facts that we have. And so, we have to do everything we can to accommodate them, but sometimes our judgment has to supplant their passion. I hope that doesn’t come across as disrespectful.

PB: No. Not at all. No, that’s why I think it’s useful. No, I don’t think so at all.

CR: Because I know there’s a group of people out there who will react strongly to the notion that we substitute our judgment for their desires.

PB: It’s a difficult issue. There’s an argument that, since talking about bias and it’s a totally understandable bias, the most biased person in connection with any criminal proceeding is perhaps the person who’s the victim. In my experience, the person who’s the victim is the most hawkish on what the prosecutor should do. We had a kidnapping case once that involved the abduction of a child from a hospital and wasn’t reunited with the biological parents for like 22 years. And people become very eye for an eye in that context, and it’s totally understandable and you cry when you hear the story. And the parents would say, “Well, we didn’t have our daughter for 22 years. So, the woman who abducted her should get 22 years.” And we think of ourselves as being rational and following the sentencing guidelines and what the law allows. There’s a compelling– that’s why it’s in the Bible, perhaps. But that’s not how the system of law works, and one of the most difficult things I know, in both of our experiences, has been to understand where the victim’s advocacy is coming from, empathize with it, try to do the best you can with what you have, but the obligation still is to the law which is not always going to be fully satisfactory to everyone and that includes the victims.

CR: There’s nothing fully satisfactory to those who lost loved ones, for instance, on 9/11. Full satisfaction would be getting their loved ones back, and that’s not going to happen. And so, we’re automatically talking about imperfect substitutes. A sentence of years, a death penalty, fines, are all to one degree or another imperfect substitutes. And so when you start to talk about imperfect substitutes, you should expect that you’re going to have widely diverging views on which ones are adequate. In my view, none are, cause the only thing that’s perfect in terms of restitution would be bringing loved ones back, and we can’t do that.

PB: I’m sure you got this a lot when you were the head of the DEA. What do you say to people who say, “The war on drugs is stupid. The war on drugs is overly expensive. The war on drugs is counterproductive. Why bother anymore?” What do you say to those people?

CR: I think that argument sweeps too broadly. The war on everything sometimes seems futile. The war on child pornography, there’s still child pornography. The war on bank robbery, there’s still bank robbery. The war on tax evasion. Now, people don’t talk about bank robbery and child pornography and tax evasion in those terms, but we’ve never eradicated any of those things simply because we enforce the law against it. I hate the term ‘war on drugs.’ I’ve never used the term ‘war on drugs.’ It is a crime because Congress has said it’s a crime. It’s our duty to enforce the law, and so we do it. And we try and do it in a thoughtful way. And by thoughtful I mean at the very highest levels, not at the bottom of the ladder but at the top of the ladder, not with addicts and people selling on the street, but with cartels and the gangs, the distribution networks in the United States that move this poison around our cities. So, I don’t like the term but law enforcement has never eradicated an ill, they make dents in it. But all these things exist. All of these societal ills exist despite law enforcement’s efforts.

PB: What about the war on terror? Do you like that term?

CR: I guess I just don’t like that terminology. It seems more fitting there than war on drugs. I think of this as a law enforcement mission, not as a war, and that’s the way I’ve tried to talk about it when I was at the DEA.

PB: In my last year in office, I began to focus a lot more on this burgeoning crisis in the country, the opioid crisis. And I know you like to focus on it and did focus on it in your time at the DEA. Is it even worse than we think?

CR: It’s pretty awful. We’re going to lose something like 67,000 people to a drug overdose this year. By the way, I think that number’s understated in a couple of ways. There’s a lot of people who overdose but don’t die because of the intervention of first responders, and then there is almost inevitably an undercount in the number of overdoses reported. We don’t know what that number is. Is it a 5:1 ratio, a 10:1 ratio? So, 67,000, which is a horrific number, is the minimum number of people we’re losing to drug overdoses. That said, about two-thirds of that number are opioid related. And here’s how that happens, Preet. We are 5% or so the world’s population as Americans, but we are responsible for, account for, consume in one way or the other about 99% of the worlds hydrocodone and about 80% of the world’s oxycodone. That’s a stunning number. If you get addicted to that stuff, if you get addicted to pain pills, and that happens every day in our country, those become crazy expensive on the street, to buy on the black market. Heroine is anywhere from one-fifth to one-tenth the price. And so what we see time and time again are people who get addicted to pain pills becoming addicted to heroine, and then at some point moving to fentanyl and synthetic opioids that are even stronger and killing them in vast numbers. We also know that four out of five heroin users started on pills and we know that most people who get addicted to pills got those pills from someone who got them legitimately, meaning stuff that’s just sort of sitting in your medicine cabinet. And so, we have to change the culture. We have to rethink that if you have minor knee surgery or you have your wisdom teeth out, that we don’t send you home with 30 oxycodone. You don’t need it. And you can take Tylenol for it, or some other none narcotic pain reliever. But we have to wean ourself off of hydrocodone and oxycodone and opioid pain relief.

PB: Why is this such a specifically American problem, based on the stats that you cited?

CR: I don’t think there’s as lopsided a drug problem in any other area as this one. We see it in other countries, we just don’t see it to this extend. I think in part, it stems from an over reliance on mitigating pain. And I’m not specifically blaming doctors or dentists or PAs, I think we’re all part of the problem. We can give lower doses, we can give fewer pills, or we could have non-opioid pain relief instead of oxy or hydrocodone. But it’s going to take a reorientation, and I think that’s exactly appropriate. Remember, again, there’s no reason why we as 5% of the population would account for overwhelming percentages of the world’s hydrocodone and oxycodone. And law enforcement alone will never solve that problem.

PB: Chuck Rosenberg, been a pleasure and an honor to have you on the show. Thanks again.

CR: You know, Preet, I really enjoyed this and I think you do a heck of a job on this. I really mean that. You’re good at this. So thank you for having me on.

PB: Thanks, you read that perfectly.

CR: Thank you.

PB: Thanks.

CR: You wrote it perfectly.

[laughter]

 

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