Former Attorneys General Doug Gansler and Jon Bruning

Wednesday, August 19, 2020 - Former Attorneys General Doug Gansler and Jon Bruning discuss criminal justice reform, social unrest, and police reform.

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Doug Gansler served as Attorney General of Maryland from 2007 to 2015, when he was also the president of the National Association of Attorneys General. He is now the head of the State Attorneys General Practice at Cadwalader, Wickersham & Taft. Jon Bruning served as Attorney General of Nebraska from 2002 to 2014, the youngest Attorney General in the nation when he took office. He is now the Managing Partner of Bruning Law Group. Today, they will discuss the role of the Attorney General, specifically in the upcoming election.

There are three unusual factors to the upcoming election: (1) the dangerous level of polarization (2) COVID-19’s impact on voter turnout; and (3) the impact of the racial unrest and protests, specifically on Joe Biden’s choice of a running mate. You just heard Doug Gansler and Jon Bruning discuss all these factors and why their bipartisan relationship could and should be a model for others in politics.

Go to NoLabels.org to learn more about how we are bringing together a bipartisan group of public and private leaders working to solve America’s toughest problems.

In This Episode

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Attorney General Doug Gansler Opening

Doug Gansler:
I would start with the grand awkward which is attorneys general, and it's an oft over viewed position in America, but they are the second most elected officials. They have incredible power, as you just saw Keith Ellison in Minnesota bringing the charges involving George Floyd. We have Kamala Harris who's the presumptive vice presidential pick on the Democratic side. She served with us. Catherine Cortez Masto, who I thought would have been one of the best, if not the best selection for vice president, though she took herself out, was the attorney general of Nevada. And Jon and I both know Joe Biden, through his son, Beau.

Beau and I got elected the same day and he was probably the person I was closest to of all the attorneys general and he was there. So the attorneys general have obviously a great influence. They're also reflective of the labels in the sense that, of the 51 and including Washington DC, there's currently 25 Democrats, 26 Republicans. There's a couple of races that are sort of interest, Pennsylvania and North Carolina being the two of them, both held by Democrats. Josh Stein in North Carolina and Josh Shapiro in Pennsylvania. So those are the two most heavily funded races. But you're probably less interested in those than some of the others.

So I think it's in the over broad view, and Dan, I think you hit on this, there's three things that are particularly different about this election than any of the preceding elections. One is Donald Trump, and I'm going to try and be as neutral as I can on that, but he is a very, I think by all accounts, a very polarizing figure. And that can cut both ways. And one of the things I think he has done is really made people sick of the polarization and is bringing people much more toward the center. I mean, the Democrats in their nomination process had a real stark choice between Elizabeth Warren, Bernie Sanders as part of the party and more of the Joe Bidens and other moderates, Steve Bullock and some of the others that were in there on the moderate side and chose the moderate candidate.

Many people thought the Democrats would not do that, that they would choose the more sort of perceived at least far left candidates in Elizabeth Warren or Bernie Sanders. So I think the Trump factor is something that is very different, not in terms of policies, but in terms of sort of behavior and who he is, which we have not seen in past elections. The second, I think you mentioned the COVID and how that affects things. I mean if you would look at the two candidates, Donald Trump sort of soaks in the idea of being in his rallies and being out there and in public. Joe Biden, the perception right now is that he's sort of lost a step a little bit, and maybe he's better secreted in the basement running his campaign from there. So there's some suggestion this is actually helping him, letting Trump do his thing and Biden is sort of the more generic Democrat. Because if you look at the presidential race, any poll would show you that the generic Democrat would be Donald Trump.

But if you have a Democrat on the top of the ticket that is actually polarized or people don't like, and you give them a reason to vote against them, then Donald Trump could win. I mean, Hillary Clinton was the great example. The vast majority of people that voted for Donald Trump didn't vote for Trump, they voted against Hillary. And the Democrats are trying not to give people a reason to vote against Biden. And the COVID as you touched on also has the mail-in ballot. And that's interesting, we just saw [inaudible 00:06:48] we just had an election here, turn out was substantially higher. There are many of us... Look, I drink politics, I've been involved in politics since I was 13 years old. I'm 57 years old, love it, study it, get involved in every part of it.

But I walked into the ballot box, and when it's time to vote for the Board of Education or the judges or the clerk of the court, I may not know who to vote for, and I'll vote for bad reasons, their name or whatever it is. The mail-in ballot has given people much greater access to information and they can make more informed votes because they have more time on the down ballot races. But also what we saw in Maryland, we just elected a 36 year old as mayor of Baltimore and largely predicated on the youth vote. There were a lot more young people that voted because of the mail rather other than taking time to go to the polls. So I think that's also something you're going to see having an effect in this election.

And the last is the protests. And what's going on around the country with that, there's going to be some backlash, frankly. This idea of defunding the police. Now people sort of walking that back, the concept of what that really means versus what it actually was reported to mean when they first came out with it. I think you're going to see some cases like, for example, without me commenting on it, the George Floyd case was inexcusable and there's no proverbial other side to it. The event that happened in Atlanta the night before last, people are ultimately going to have some issues. In other words, here's a man who was being stopped for drunk driving, just asleep in the car. Everything's calm, they go to arrest him, and instead of what anyone else would do, which is sort of submit to that and deal with it, he attacks the police officers, pulls them down to the ground, grabs a weapon and then runs.

And then while he's running, he turns around and while he's shooting a taser, it looks like you shooting something at that police officer and ends up getting shot. So it's a little less clear, if you will, than the George Floyd. And I think you might in the time between now and the election start seeing some backlash on the protests, and thankfully they've been keeping them pretty tame and not as much limiting and so forth. But it will, I think have a massive impact on who Joe Biden can pick as his running mate. It's really, in my view of him throwing him into the necessity of picking a woman, because he [inaudible 00:09:31] himself on that, of color as a result of the protest. So I think that's what's sort of going on on the grand scale.

In terms of the actual elections, I do think there's little chance that Joe Biden will lose, as long as he maintains senility and other things and doesn't do anything too controversial. And I do think he'll win, and the Senate is going to be where the battleground is. You have 53 Republicans, 47 Democrats, but unlike two years ago, the vast amount of seats that are trying to be held are Republican seats. The Republicans have to defend 23 seats, while the Democrats only have to defend 12 seats. So that's going to be where I think the battles are going to be waged and it's too hard to figure out what's going to happen there. So with that, I'll give my time over to General Bruning.

Bruning Opening Remarks

Jon Bruning:
Doug Gansler by the way is a dear friend of mine, a former Democrat attorney general. I'm a former Republican attorney general. There's a lot to be concerned about in American politics. You wonder is it so polarized that we can never come back? I can tell you, at least in AG world, attorney general world, there's a lot to be optimistic about. It's not particularly noteworthy that a former Democrat president of NAAG, Doug, and a former Republican president of NAAG, me, are good friends. There are good friends across the aisle in attorney general world. And as soon as I start to feel down about I think about the Senate, it used to be, there were a half a dozen Republicans that were more liberal than the half dozen Democrats that were conservative. You saw the overlap. Daniel Patrick Moynihan, or Ben Nelson from Nebraska conservative Democrat, a liberal Republican, those people existed.

As soon as I start to worry about where America's going, I get on a call with you, with very smart people at the top echelon of American society who are thinking about this problem. And I think about the attorneys general, where there's still hope. The attorneys general there are bipartisan investigations of Google, whether you agree with it or not, they have your information, they know your location now, whether you've shared with them or not. There are bipartisan investigations of company with regard to the opioid issue, which is a major American issue. I mean, tens of millions of Americans became addicted as the companies that both manufacture and distribute those drugs were either complicit or purposely unaware. Bipartisan investigations where Democrats and Republicans are talking to each other this week, last week, last month about the best thing to do for America.

So there's still hope. Do I think it's critical that you are doing what you do and gathering on these Zoom calls now and presumably gathering in person when the moment allows? Yeah. I think it's absolutely critical. For those of you that are concerned about the president, and I've met the president half a dozen times and he's as nuts as you think he is, and those of us on the Republican side that voted for him in 2016, we still think he's nuts. Whether the same amount of Republicans will vote for him in 2020, that's an open question. I can tell you for example, at a Republican attorney's general meeting in 2014, we show up at the Trump Doral Course in Miami, and he has a roll of blue painter's tape and he's putting one inch squares on the wall.

And I said, "Hey Donald, I'm Jon Bruning. I'm the Attorney General of Nebraska." He said, "I'm Donald Trump. Nice to meet you." "So what are you doing with the blue painter's tape?" And this is a true story. He said, "There's 523 magazine covers with my face on them, and this golf club only has 150 of them up. I want to show the maintenance guys where to put the other 373 magazine covers." So he's just as nuts as you think he is. The bright spot in the president, think about today, the Supreme Court Neil Gorsuch, who many of you probably thought "Here's another right-wing hack lawyer", voted to extend the federal law protection to same sex or to homosexuals in the workplace. Neil Gorsuch voted with the majority. Now whether you agree or disagree, not everybody that Trump appoints is going to be the furthest right-wing hack you've ever seen in your life. That happened today, the Supreme Court, Neil Gorsuch, Trump appointee.

And I can tell you in my little law firm here, where my chief of staff who you can't see, former chief of staff, now my law partner is sitting over here to my left. My former deputy and my other former deputy, those are the people that are being appointed to the federal courts. Moderate center-right Republicans who are in the state AG offices are starting to be in the federal courts. Now you may read about the ones where you say, "Oh crap, this person is right of Attila the hun, but I can assure you there are capable, decent people that are being put in the federal judiciary in many cases. Not all cases. You could always find a case and I'm sure America's best litigator like Dan Webb, he's at the absolute top of the pyramid, he's seen them all in terms of judges.

Some are good and some are not, but there are a lot of reasons for hope. I don't know whether the president will win, I know that he's out there and the Republicans as we talk about it. I have clients that run the gamut like Doug does. I represent Sheldon Adelson. I represent Ford Motor, Home Depot across the gamut. Even the Republicans as we gather, we say, "Man, I wish this guy would stop talking. Just stop talking. Don't don't be mean to anybody for a week." Even those of us that ended up being supportive in 2016. So I don't know how you get there, but I'm all for... It was mocked roundly in the early '90s. I'm all for a kindler, gentler America, and to get back to that. And I know that many, many Republicans are who you think they are not.

And I'm so grateful to No Labels and to Nancy what you've created, because it's just very, very special and very important to America that you have top tier, top of class people like you have on this call. My jaw hit the floor when I looked at the list, that are interested in the American political system and how it affects...

What does 'defund the police' mean in your world?

Question:
Jon, thanks a lot for those comments, and while I have both of you and Doug here, let me move a little bit away from partisan politics. I want to talk about the issue while I have you both here. You both were attorney generals of prominent States, Republican and Democrat, you're both close friends. You both served as the president of the very powerful National Association of Attorney Generals. The truth is you guys are associated with law enforcement. When you're the attorney general of the state, you are the top leading law enforcement officer in that state. And so I am kind of curious about this issue. I've lived decades in this country where we have major issues of law enforcement engaging in horrific conduct towards minorities.

And by the way, Doug, if I have time today, I want to come back and ask you a question about Atlanta. Because you touched upon a very important nerve that the media is intentionally ignoring right now today. And I'll come back to it if we have time because I got people in the queue here. But my question to start with, and Doug, I'll just start with you and move to Jon. What does this mean to defund law enforcement? Are we going to really talk about changing the structure of police interaction, the first contact with offenders and we're going to bring in social workers and have them interact with... Seriously, I want to know what you guys connected law enforcement... And by the way, Vice President Biden did not bite on this issue last week. He kind of took a little bit of a pass on it. So Doug, when you talk to folks in law enforcement now that you were so closely aligned with, what does this defunding law enforcement mean in the rural world and where's it going?

Doug Gansler:
Yeah, I know, it's a good question. And I was a prosecutor as I mentioned for 22 years, both federal state and local. So this is an issue that's been very dear to my heart. I was actually the head of the NAACP Criminal Justice Committee in Montgomery County, Maryland in 1989 to early '90s. It's been an issue that I think is now obviously coming to the fore, but starting at the beginning, the defunding the police I think is... And Joe Biden by the way was clear on that. He was against it. It obviously makes no sense, that what they're talking about is the kind of thing that you alluded to saying, "Well, we don't really mean taking all the money away from the police, but we're talking about funneling money to other like mental health services and counseling and so forth."

And that's certainly fine, but everyone needs... we need the police department. In Baltimore, which is our biggest city, there's 350 to 400 people murdered a year and that's with the police department. And so you can imagine what it'd be like if you didn't have police. I do think though you're going to see major reforms. The one that seems to be sort of getting the most traction is this idea of getting rid of choke holds, which to me is a red herring because there's no sort of evidence that more African-Americans are getting choke holds than white defendants. Where the real issue I think is going to be is on diversity training, making sure there's cultural training around with police departments, make sure there's more diversity within the police departments in terms of hiring. I think that's what you're going to start seeing eventually change.

We saw the gay rights movement. I was very ahead on marriage equality, like five years ahead when I wrote this opinion saying, marriage should be between whoever you want it to be. And they tried to impeach me. But I believed it. And I think the reason why that took hold was because people started to know gay people and they had them in their family, their neighbors, at work. I think you're going to see the same thing here with African-Americans. I work for, as you know, the oldest law firm in America, Cadwalader, Wickersham & Taft. And no one thinks of that as sort of being the cutting edge, progressive law firm in the world, but they've come out with what is called incredible tomes about this issue. They change our blue [inaudible 00:20:32] to rainbow [inaudible 00:20:33] I think all institutions, all bodies, all companies are starting to look at themselves and do some inspection introspection that they hereto for not done.

So I think that's going to be the big thing with the police departments, to sort of look at how they're formed and who's actually in there. Are they're going to do some other reforms along the lines of the choke holds and things? Yes. I think ultimately though, the notion that was really in the early 2000s, and even in the 1990s of community policing and also the community prosecution, well, is important, because that way... Right now, the problem is about distrust as you can see between law enforcement and the community, and they need to bridge that. And one of the ways to do that is community policing and community prosecution.

Changing the Structure of the Police

Question:
Let me ask you to maybe comment on the same subject matter, and maybe I'm curious about the view you get from other attorney generals. There's going to be, I think, enormous and very important reports that will come out of what has happened in the last several weeks in America, and it's all for the good. I'm curious about actually changing the structure of police departments. I'm not talking about improving training. I'm not talking about no longer being able to use certain techniques in dealing with offenders. I'm talking about fundamental changes in the structure of policing in America that might change. For example, who are the first interactors with offenders? And things like that. Or whether that's not going to happen. I'm curious about what you and people that you talk to in the AG world think about that today.

Jon Bruning:
Yeah, I think it's a great point, and police departments are going to have to modernize in that way, where they're going to have to be in large part social workers. If you have somebody in mental health crises, you don't send out a big cowboy with a gun. That's not the way to do it. It just ends up resulting in bad outcomes. In Sweden, for example, they do a lot of that type of training where they're trying to weed out the cowboys, the guys that want to fight. It's sort of the stereotypical guy with a flat top that wants to throw some punches. And law enforcement is not all like that, but certainly there are people like that in law enforcement.

Part of the problem is it's very difficult to weed out the bad apples, and this is a little bit against interest because I was tight with the police unions when I ran. But it's very difficult for an elected state attorney general or an elected county prosecutor to get sideways with the police union. And the police union's job is to defend all the bad apples. They defend every apple. But I think as Doug will tell you, as a veteran of a number of elections, those police unions are critical to your ability to be elected. But at times they end up supporting the bad apples, and when those guys stay in, you have tragedies like it happened in Minneapolis. So I don't know how you reform the police unions, they've also been a financial train wreck in a number of states where police have been able to retire after 20 or 25 years with 80% of their salary. That has been very destabilizing to communities and states around the country. But as far as weeding out the bad apples for violence, those that have a propensity to violence, those officers, we have to do a better job.

Issues Regarding the Integrity of Our Elections

Doug Scribner:
Gentlemen, I think everybody would agree that integrity of elections is critical, but you've got a spectrum of views as to what the issues are and how to deal with it. At one end, you may have those who say suppression of electorate is the issue and election fraud doesn't exist. The other end, you may have people who say that election fraud is a massive problem and requires massive interventions. And as with most issues today, it's fairly polarized. You don't have that much in between. I wonder if you guys could comment on sort of what you see is the issues confronting integrity of our elections and how we might deal with that.

Doug Gansler:
I'm happy to start Jon, while you collect your thoughts. Look, I think it's a real thing that happens in some places. I don't think though, that voter suppression is happening everywhere all the time. I think that there is more and more access to the ballot than there ever has been. The mail-in vote will help significantly, I think, on that as well. There are cases where there's voter suppression and I guess I'll touch on two different things that are sort of tangentially related. One is what you're seeing and Jon mentioned it earlier about big tech. Facebook and Twitter, and... These companies are now confronting this whole issue about where does the first amendment and where does sort of voter suppression, the crossroads there... Should they be taking down speech that is false?

I mean, do you want some 25-year-old dude with a ponytail sitting in a room out in Menlo Park making decisions about what the clerk of the court in Lincoln, Nebraska is saying, whether that's true or not? People can have arguments on both sides. But I think that issue is going to continue to be interesting, what big tech allows and what they don't allow. And then the big elephant in the room is Citizens United. And where's that going to go? And the amount of money that is spent on elections to... I mean, is it voter suppression? I don't know how you define that, but broadly sure. The amount of money that's coming in, dark money, money you don't know where it's coming from, what pack, who's supporting which packs. And so I think that's going to ultimately have to be curtailed.

Jon Bruning:
Yeah, Doug, I think it's a great question. I would say that voter suppression is much more likely than voter fraud. There's scant evidence about voter fraud, that there are legions of people showing up and saying, "I'm Doug Scribner and voting in the election in your state." There's almost no evidence of that. And I think suppression takes sort of a... I think it's more about negligence and funding than it is outright voter suppression. Now maybe it ends up being the same thing in the end, if you don't fund enough polling places in minority areas. So it's really a funding issue, I think by and large, and a volunteer issue. I mean, in Nebraska, the elections are run by volunteers. I think that's true in most states. So it just becomes a manpower and funding issue to set up those polling places.

Ultimately, I think that the issue for both in the 21st century is going to be how to use technology to vote online. And we're sort of learning that the hard way in this 2020 election because of the pandemic. And we're finding out that it works, that there are secure systems. I think we have to take our international foes very, very seriously. There's been exquisite reporting about the Russians attempts to influence the 2016 election. I don't think there's any doubt they're trying to do it again. And it certainly concerns me that if we're not taking every precaution to ensure they don't do it again. But for me, I don't think there's a lot of voter fraud going on. I think it's more about suppression.

Protections from Over-Policing

Lee Adrian:
Going back to police reform for a moment, you've spoken about several elements of that, that choke holds and training, possibly restructuring the work, having people who are more trained or qualified on essentially social work, but that may be the need that's there, but there are still dangerous elements to the job. One of the proposals that people are throwing around is change the rules on qualified immunity. And I'm curious as to your thoughts on that issue in how you balance the reasonable need of the population to be protected from potentially overzealous or over violent application of the law with the reasonable need to protect policemen who are doing their job to the best of their ability in what is a dangerous job.

Doug Gansler:
So, Jon alluded to it as well. One of the things that people are most dissatisfied with when they think about the sort of immunity, which is a little bit different than sort of sovereign immunity that a government would have, a police officer doesn't have that in most cases. But what the unions have been able to negotiate in most police departments, is something called a Law Enforcement Bill of Rights, where a police officer's involved in a shooting or some sort of potentially criminal act. And they don't have to talk to anybody. They don't have to give a statement to anybody for, in some places days five days, in some places 10 days, in some places more.

You have your five or 10 days to sort of talk to all your colleagues, get their stories, get your story, talk to a few lawyers then coming in and giving your first statement. Most of the other defendants don't have that right, and people want to see that change. So it'll be interesting to see the friction between the power of the police union and what many people think, that there's no sort of real basis for doing that. So I think that's part of it. And then you have to be, I think, innovative. One of the things I did, for example, when I was the DA, the state's attorney in Maryland, I took every time a police officer shot his or her gun and put that case in front of the grand jury. I elect 23 people from the community. "Here's what the standards are, here are the rules." And let the community decide was that justified or was that not a justified shooting?

Because it's easy, I don't know if any of you ever done this, but it's easy to sort of judge from the cold view of what happens. But if you haven't done some of that on the fax machine or one of these simulated machines on law enforcement, where you're going into a domestic violence situation, they give you a fake gun and there's screens up, it looks like a movie. And there's kids riding the bike [inaudible 00:30:57] They just can't expect. And I happen to come from a school that believes that most police officers don't wake up and say, "I want to be a police officer so I can go out and kil minorities or people of color." I think there are judgements and sort of latent biases that do exist, but I think that if they're able to explain themselves in the situation, some are inexplicably, the Garner situation in Staten Island, George Floyd, and then others are more [inaudible 00:31:28] So I think that's where we are.

Jon Bruning:
Yeah. Doug, to your point, a lot of these are very close calls, very difficult decisions to make as a police officer and then as a prosecutor. And I do think one of the failings of the Trump administration at this point is they have allowed DOJ to check out on review of these cases from a civil rights basis. It's important to have the Department of Justice federally looking at it, because as I mentioned earlier, it has an elected state attorney general or Doug's state's attorney or district attorney. You work hand in hand with the police all the time. A big chunk of our election campaign was the endorsement of 90 of our 93 sheriffs, the close relationship with the state patrol, the endorsement of the Omaha police unit. So when you run for office in that way, which many attorneys general do because the population wants law and order, and then you have a close call, bad actor as a police officer, it's very difficult when the police union is saying, "Hey, we got you elected. Now, you don't want to prosecute this guy."

Now we did anyway, because I went in thinking, "I'm going to do the right thing, come hell or high water." And we did, we prosecuted the dozen police officers, I prosecuted a couple of county attorneys. But those are tough calls to make. And those take a chunk out of your armor. And if I hadn't, maybe I'd be governor. Who knows, right? Every time you lose a percent here and a percent there, that's how elections are won and lost. Not everybody in politics are like Doug and I, where you think you're going to do the right thing. I think I did the right thing, but there are people that want to win at all cost, particularly today.

How to Maintain Objectivity of Local District Attorneys

Richard Davis:
In my own experience, I'm a long-time former prosecutor, are permanent special prosecutors, particularly permanent single-purpose special prosecutors have their own problems. And I don't think they're necessarily good. And we have seen in New York and now in Minnesota in the one case, but in New York now it's become standard practice to refer these cases to the state attorney general. So what do you think are the options? Do you think it is a good idea to refer to state's attorneys generals as opposed to leaving with the local DAs? Do you think that there are other ways to enhance the ability of people to have confidence in the objectivity of the investigations and the decisions, whether they're prosecuted?

Doug Gansler:
Well, look, I do think this idea of community policing... Take New York, for example. Instead of having the entire city broken up into the districts that they have, you actually can do it by neighborhood. It's sort of going back to the concept of Officer Friendly. You know what I mean? It's a little hyperbolic, but that's the idea. That you have police officers walking the streets in a particular community neighborhood. So the neighborhood and the community gets to know that police officer. You also have a prosecutor, the prosecutor is also assigned by neighborhoods where you have a senior all the way down to junior prosecutors working in that neighborhood as well. And what you find, when I put that in...

In Montgomery County in Maryland, it's got over a million people, it's fairly big. When we put it in, the police were very resistant to it. And one of the things that they were resistant to was the idea that prosecutors are going to oversee the way in which they conduct their business. In fact, they ended up liking it because we were there from the night of the murder or the shooting we'll help them gather evidence. But the corollary effect was we were able to sort of see who are the bad apples and who weren't the bad apples. And we were able to throw them out of the system. Their story was always a little off and that kind of thing. So I think there's going to be gravitation toward that down the road. A lot of police departments, a lot of DA's offices are doing that.

The problem with chipping cases out to the AGs are the people that go to work for the attorney general's office, very, very, very few of them are actually criminal prosecutors. As much as every time one of us runs office as attorney general and all the commercials are about crime, 95% of what the attorney general does is civil. And so they're just not equipped to prosecute cases as the local DA. Now if there's a reason to recuse him or herself as a DA, what we do anyways, we send it to the next county over and let that state attorney's office deal with the case. Presenting to the attorney general's office, I mean, look what happened to Minnesota. Now that's a tough case, right? So the attorney general gets the case. Clearly the guy who killed George Floyd should be charged with murder. What degree? We can all argue about?

Well, the other three guys were charged with a crime, the three police officers. Now that's going to be hard... When I say hard, I mean near impossible to prove. Because what is the crime? And now they violated every standard and every ethic and every moral of a police officer, and they ought to be fired for standing there watching another police officer kill somebody on the one hand. So they got the most draconian sentence, which is firing. But you have an attorney general coming in and charging three people who are standing around as this happened with a crime. Now will that have reverberations down the road when they're not convicted? Who knows? Was it important to do to stop and quell some of the protests? Yes. But taking it out of the DA's hands and into some other office, doesn't really make sense to me. The only place that would make sense is to send it to the United States Attorney's office, but there you have to have a federal crime that's alleged.

Jon Bruning:
Richard, I think Doug's right on most accounts. I have a slightly different take. I mean, in some states you're going to have a lot higher chance of a strong outcome if you send it to the attorney general. It depends on the state, it depends if they have criminal authority, it depends if they have skilled criminal prosecutors. Doug, in my office, I hired former county attorneys, former DAs, they had 20 years experience. When you hire those folks and they're making the call... I always said, and again, my chief of staff sitting over here to my left, "Listen, if we lose Grand Island, we could still win the state." So if we've got to go in and prosecute the mayor, prosecute the mayor. If we're going to prosecute the police officer in Grand Island, we did it.

And so we were going to do what was right. We knew you could lose a town here, lose a town there, but politically the calculation is certainly in your mind. So not every elected official has that courage. So I think you need a belt and suspenders, which as Doug said, whether it's a federal authority, the DOJ has done this historically, they stopped doing it in late 2017, but they have reviewed these types of cases. I think it's important to have that belt and suspenders review. But the state AG is a good stop in a lot of states, not all of them.

What kinds of police reforms make sense?

Maxine Clark:
So we've been hearing a lot about a couple of locations, cities where they've done some police reform. They didn't abolish the police department of course, but they did some reform. Are you aware of those, what kinds of reforms they made, and do you think they could work in a vast majority of cities?

Doug Gansler:
Well, and Jon just alluded to it. Under the Obama administration and previously under the Bush, both Bushs and going back, when there were cities that had systemic institutionalized problems with their police department, the justice department would come in and they'd issue a consent decree, and there'll be a full investigation to that police department to determine what issues and problems they have. And there were about 25 of them that were going on when the change of administration happened, and Jeff Sessions when he was the attorney general stopped those.

And so I think those are actually pretty important. You won't have a consent agreement of every cop in America, but the ones that clearly are having problems in the statistics and the numbers and the trust of the community, is just incorrigible, to have a consent agreement, to have somebody come in and look at those departments makes a big difference. And you asked for examples, I'm in my little piece of a world over here. I live in one of those states that so small that they have to write the name in the ocean. But if you look along the East coast, that's where you have a lot of that reform. I mean, Philadelphia and DC, both police departments... Interestingly, Charles Ramsey who was a wonderful police chief, really helped reform that. And what happens is that community trust goes up, the numbers of murders goes down exponentially, and just crime is better.

Meanwhile Baltimore is sort of stuck in the middle, and nothing's happened there to fix it and it's getting worse and worse. And so I think that we will see next year, most likely, the advent of consent degrees coming back, and some of the major police departments if they do need a reform, will get that with Department of Justice oversight.

Maxine Clark:
Now we're in St. Louis where we had the consent decree for Ferguson and in the beginning, I think you're right, there were a lot of changes made in the beginning. And then of course, when it went away, they retreated backwards to the old habits, and unfortunately we still have some [crosstalk 00:41:28] But it just sounds like so sensible. And also, the fact that policemen would have backgrounds in social work, or they would have social workers on their staff or public health people that could really help them solve some of these problems because they are the last line of defense. They go into a situation of family abuse or anything, I mean, the violence is definitely around them. I would be scared to death too, but if they had the tools, they could probably do a much better job at mitigating disaster.

Jon Bruning:
Yeah. Maxine, the one thing I'd add, I think you're exactly right in what you said. The one thing I'd add, I think we have to add deescalation training to all law enforcement. Right now there's all sorts of training on how to fight and how to subdue and use your physicality against somebody that you're arresting. Not all of them have deescalation training. And to me that's key how to just take a situation, and frankly we can all use it, but particularly police. How to deescalate a situation, because you see all these situations, they just ramp up and all heck breaks loose, and somebody gets hurt, whether it's a policeman or somebody else.

This entire discussion, I would caution, at least from my perspective, we can't put all of this on the police. As you mentioned, Maxine, it is a scary job to do. You go into a domestic situation and a couple is screaming at each other. Those are situations fraught with peril. Or the Atlanta situation which Doug said, I mean, those are tough ones to walk into. And so, I have more than a modicum of sympathy for how hard that job is.

What direct action can be done to address racism in the system?

Bill Galston:
First of all, you guys have done a pretty good job of persuading me that the state AG ought not to be an elective office. If you're having to figure out whether you can prosecute a mayor, depending on how many votes there are on the town he leads and whether you can afford to give up those votes and still be elected statewide. That's the wrong question for AGs to be asking themselves in my opinion, and I wonder what you think about that. But don't answer that until I lay a few other things on the table.

I think that you are both in different ways, understating the urgency of the moment. And maybe that's just because you're tonally moderate, but I want to pressure you a little bit. All the survey research indicates that there has been a fundamental breakdown of trust between police and minority communities across the country. This is not an isolated phenomenon. This is pervasive. And why is that? Well, it wasn't always that way. I could take you back to 1994 and the Crime Bill and the attitudes of minority communities and legislators towards that bill. That was then, this is now. Stop-and-frisk has been a disaster for police community relations. Routine traffic stops for broken tail lights has been a disaster. Shoot to kill orders when the suspect is running away from the police and not towards them, have been a disaster.

To which I would add, having policemen who by and large do not hail from the city, let alone the community they're sworn to serve and protect is an invitation to what we've been seeing. In Minneapolis, fewer than 20% of the police actually live within the city limits. Many of them live 20 or even 30 miles away in all white enclaves. So, what about requiring a much higher percentage of police within a jurisdiction to be drawn from that jurisdiction I could go on. There are really big issues on the table now. Senator Tim Scott, the only African-American Republican in the Senate has been stopped half a dozen times in the past six years for nothing, including three times in the National Capitol, walking towards the Congress. There's a problem here, and we've got to do something about it, and I'd sure like to know what you want to do about it.

Doug Gansler:
So tackling the two broad issues. One is whether the AG should be elected. No, that's an ongoing issue. In fact, the person running for the nomination in Ohio for attorney general said that he thought maybe it shouldn't be elected when he was running for the elected job. And he got just slam on that because folks think, "Well, there is a difference." Prosecuting a mayor is one thing, but again, most of what you do is not prosecution. Like for example, my biggest issue probably was environment, was to clean the Chesapeake Bay. And one might argue that if I were of a different party that might not have been as important. So I do think there are different philosophies that go behind the job. Now that said, seven of the 51 of us are not elected. Five are chosen by the governor, main picks from the attorney general. Janet Mills who's now the governor, was a delegate and she was picked from the House of Delegates to be attorney general and then she elevated to governor.

I always say the most qualified attorney general in America is that of Tennessee. Most of the attorneys general that Jon and I know couldn't get elected in their own living room to something, but they're appointed by the Supreme court of Tennessee, and they're always extremely qualified and just very decent people. So there's an [inaudible 00:48:17] the US attorneys in each state are not elected, but I do think that people want to have elected attorneys general. D.C forever was not elected. Karl Racine, the current attorney general was elected, and it's really given him more power, more independence, and also independence from the governor, in that case, the mayor, which I think is an important thing to have. In terms of the urgency of the moment, I actually think that the urgency of the moment is very front and center and critical and important.

As we're sort of near the end of this call, going back to the beginning of the call, I think it's going to have a great effect on the election coming up. I think that the minority community is clearly going to be more mobilized. I do think there's going to be a little bit of a backlash as well if their hand is overplayed. But certainly everybody is looking at all the police departments and all of corporate America, I submit, are looking at, are they part of the problem? Are they doing things that they just sort of through inertia continue to do that really do affect people? I mean, it's interesting, I just watched an interview last night on TV with Bubba Wallace. I've never watched a car race in my life, but he's an African-American car driver who's talking about taking the Confederate flag down in NASCAR next.

And it's like, what if they had a Nazi flag at those events? That would be equally disturbing. Or what if army bases were named after Nazis instead of Confederates? [inaudible 00:49:55] all that's different, but maybe for an African-American whose ancestors were slaves, it's not. And so we're looking at things differently. We may not make all the changes that some people want to see, but I do think people are thinking more about it, And I think people are embracing the urgency at the moment.

Jon Bruning:
Bill, I would say a couple of things. First of all, my dad was a professor at the University of Nebraska, 55 years, a Professor of Educational Psychology. So I'm well acquainted with academics and being grilled, if that was your... and I appreciate it. Listen, elected attorney general, first of all, don't you want some independence? Did you wish Jeff Sessions had more independence from the president and wasn't hanging on for his job? Elected attorneys general don't report to the governor. So we have a separate political agenda than the governors. Elected attorneys general can have a political agenda. You're appointed, you can't. The governor fires you and the next one's in. So the independence of an elected attorney general, I think, is critical to the office of state attorney general. So I didn't mean to give you... Maybe I let you look under the hood too much at the political calculus. I don't mean to startle you at the start calculus.

I think if I were one of you on this call and I were going to do a couple things, one, I think it's critical to register minority communities to vote so that they can express their will in the next election. It's pretty easy to make an argument. If you go back to Pennsylvania and Wisconsin and even Ohio, which wasn't that close, that if minority communities had voted in more force, it wouldn't even have been a close election. But they didn't. Minority communities didn't show up. That's one thing I would do. And switching gears, I think it's critical that office holders know each other. We've always joked it's very hard to screw someone that's your friend politically. Groups like NAAG of course, have that happen, but there are groups like Aspen Institute, No Labels has done this very well. German Marshall Fund. Find your up and coming politicians, Aspen has been brilliant at this, and from both parties, put them together and put them in a non-threatening room where there aren't reporters and you'll find that magic can happen.

And so those of you that have supported Aspen, good for you, some of the best programming out there. No Labels, Nancy, you guys have been brilliant at your bipartisan programming. And I think we just need to continue to chip away at it, frankly, and we'll have more opportunity for common ground. We have much more in common than we don't have in common. So I remain optimistic, and I tell people all the time, listen, as we get toward the end of this call, when you start to fret, I see my dad who just is driven crazy by Trump. I say, "Dad, the republic will withstand this president or any president. The Republic will withstand him or anyone." So we're onto the next election, it takes four years, but it goes by in the blink of an eye. Here we are, and in my opinion, the republic will persevere.

Addressing Qualified Immunity

Sean Taylor:
When we talk about police reform, we're not getting at the heart of the matter, we're just looking at symptoms through all of this. I grew up on the south side of Chicago in one of the worst projects in the city, Altgeld Gardens. So I've been dealing with this my whole life, and I'm 60 years old. In the last several years, a power of these police unions and Jon answered I believe, and Jon you talked about the influence that they've had over elected officials. To me, it seems like dismantling some of these unions is at the heart of a problem here that we've got to address is having qualified immunity when nobody else in the society has qualified immunity.

And when you look at the statistics, once these unions have formed and they pass this type of legislation, the amount of deadly force and excessive force toward minorities and blacks in particular has escalated over the years, not deescalated. So how do we go about doing that, so that people like you when you were an AG can actually do the right thing and not have to, excuse my choice of words, prostitute yourself out to people who are hiding behind a law?

Doug Gansler:
I mean, look, all unions have an enormous amount of power, particularly the Democratic side, less so I think of the Republican side. But they all have power, whether it's the UFCW or FCIU. The police union has an interesting, unique power in the sense that as much as everyone is very hyper sensitive about what's going on with police brutality and police racism which I think is incredibly a wonderful thing that this urgency of the moment is happening, that people are looking at it and people are stepping out. And what I find sort of the most I think wonderful about it is when you look at these protests, how multicultural the protests are. And so I think people really are recognizing this as a very severe problem and trying to do something about it. Police unions though, do good things for overtime and making sure people aren't working too long shifts and that they're paid. I mean, police officers are often underpaid somewhat.

It's the one piece that you hit on that immunity piece that the law enforcement of rights where they don't have to come in and talk, give statements, that I think you're going to see a backlash against now from all candidates. But yeah, look, the issues of police sort of... I remember growing up here every, every one of my African-American friends in high school, I mean, everyone, every time they went to the next county over in Prince George's, they would be pulled over for whatever reason. And so I think that's sort of slowly changing, but I think that it's systemic in our country. Thankfully our kids' generation see color a lot, lot, lot less than our generation, and we see it less than our parents. And so it's going to take some time, but you also need to legislate the police in some ways and make sure they get the right training to make sure that this doesn't keep happening at the law enforcement level.

Jon Bruning:
Yeah, I think you said it well, Doug. And Sean, I think it's a great point. I mean, I'm not sure what the answer is, but this moment to me seems different. For whatever reason, this moment is different. And I don't know if it's a confluence of President Trump and the George Floyd being the straw that broke the camel's back, but this moment seems different. I feel like reform is going to occur. It'd be important to see what Joe Biden thinks because he was right there. By the way, plug for the Hillary documentary on Hulu, it's four parts if you haven't seen it. And then what makes me think of it as the '94 Crime Bill and how much things have changed in 26 years, where President Clinton was gathering African-American leaders to make it tougher on crime, including giving police more tools and the militarization of police, which I think is yet another reform that needs to occur is to take some of that militarization away. But Sean, it's a great point. I mean, we're talking about symptoms. We haven't really gotten to the heart of it.

Sean Taylor:
And if I may say something on the Crime Bill, to me as African-American in this country, that was a bait and switch, like a lot of policies that are passed around law enforcement, because it basically created the industrial criminal system here. Privatization of prisons, prisons which had corrupted judges and law enforcement and elected officials. And in the end you talk about voter suppression, it has been the greatest voter suppression tool used in modern day politics. So, we get a lot of stuff pushed out here under trying to be the crime president when in fact the people who are actually affected the most look like me. I'm done. Thank you.

Bill Galston Sign off

Bill Galston:
It has been a great discussion. Let me tell you what my big takeaway is, that the state attorneys general, as a group, look uncannily like the House of Representatives' problem-solvers, numerically and in every other way, I'm really struck listening to the two of you, how absent the normal partisan labels are from your views and everything else. And it strikes me that the state attorneys general can be a huge resource of good thinking and also modeling of the kinds of relationships we need in this country. And so I look forward. I think this can be the beginning of a very constructive dialogue and relationship between No Labels and the state attorneys general, and I hope very much that it will continue. And thank you very much for giving us your time.

Doug Gansler:
No, and interestingly, if I just dove-tail real quick on that, the state attorneys general actually look different than Congress too. I mean, we have two openly gay women attorneys general, Michigan and Massachusetts. The attorneys general of Nevada, of Minnesota, New York, D.C., I mean, there's a lot of African-American attorneys general. It's a very diverse group as well, which helps the dialogue and helps us all learn from each other as well.

Bill Galston:
Amen.

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