Becoming a District Attorney

starting to heat up. We wanted to speak to Tally for two reasons. First, she's a fascinating example of a person deciding to run for office for the first time in the hopes of making change in the way of this historic national election. And she's reflecting on some of the hardest policy issues that face public officials today and that will face the Biden Harris administration when it eventually

takes office. Second, Tally is also a colleague. As part of her campaign, she's launched a podcast called Hearing Liked Background. It's produced by Pushkin Industries, and as you'll hear in a minute, Tally is very well suited to hosting a podcast,

maybe a little bit better than I am tally. Thank you so much for being here, and especially in this kind of exciting but also a little nervous making week when Joe Biden has been declared quote unquote president by the networks and the current occupant of the White House has not yet acknowledged it. I want to begin by asking about your own race that you're in, mesh Gen, and that's a raise for District Attorney of New York County,

which is Manhattan. Why are you running for District Attorney of Manhattan now, Well, first, let me just say thank you so much for having me here and having me during, as you say, a celebratory week and also a time for some continued nail biting while we are focused on the national election and what it means for our country. I have been deeply engaged in this campaign for Manhattan

District Attorney. And it's interesting, you know, I really turned to local prosecution after really having grown up in the federal criminal justice system after Trump was elected and I felt that I had to leave the Justice Department, where I had spent pretty much the entire Obama administration, working first for Eric Holder in his run office at the policy level, as his counsel and then on the ground as a federal prosecutor in the Eastern District of New York.

And alongside the conversation that we've been having, particularly this summer, about the flaws inside the criminal justice system, there's been this incredibly interesting movement to reform local prosecution from within.

And that's really at the heart of what I have been trying to do in the last couple of years, where I was working with local prosecutors in the Brooklyn District Attorney's office as a general council and really what I want to bring to Manhattan tally, given that we've just come through an election, some listeners, especially those who don't live in your jurisdiction, might be asking, wait, why are you running now? When is your election right? No rest for the weary, no time to turn to the

next cycle in New York. So my election is in June of twenty twenty one. It's in the third week of June because the determinative election historically for District Attorney has been the Democratic Primary, which happens in the summer

in New York. Reforming the criminal justice system is turning out to be hard, whether you do it from the top from the Attorney general's office, whether you do it as a federal prosecutor, or whether you do it within a local state prosecutor's office, as you've been doing in

the Brooklyn District Attorney's office. What are some of the biggest challenges you see, What are some of the things that make it so hard, because you know, to an outsider, you might sort of think, well, we have all of these policies that systematically give a lot of power to prosecutors, and so all we really need to do is choose by appointment or election leaders who tell those prosecutors, Okay,

you know, it's a new system, a new game. We still have the same discretion, but now we want you to exercise it for the good, not to maximize sentences, but to have an opportunity to send potential offenders into alternate treatment programs or just don't seek such high sentences for minor drug offenses. And you think it would be over I mean, it doesn't seem on the surface like the hardest part of the policy ever would be anything

other than just getting the right people in there. Well, so you do make it sound so easy, No, And of course, you know, at a high level of general. That is the agenda. How can we use this power, which is really just an unbelievable power. The district attorney does not answer to anybody but the voters. How do we use that power to decide what cases to bring in what cases not to bring. I mean, that is at the heart of what it means to be a

good prosecutor, and reform is about resetting that agenda. What has been challenging is that it's not just about correcting the excesses of the criminal justice tem pulling back from the cases that have harmed rather than helped communities that have perpetuated injustices, that have perpetuated racial disparities, exacerbated them,

that have criminalized poverty. There's all of that work, but also then deciding and this is where I think gets less attention, and it is just as important, and it certainly as important to me, what are the cases that we have not been bringing that really are necessary or at the core of our mission to deliver on public safety,

particularly for the most vulnerable people. And I think that this is really the next chapter of criminal justice reform is balancing out the places where we are shrinking and pulling back with the places where we need to be more aggressive and think about the folks that we have

left behind. And so, you know, when I think about what are the things that have just not happened, you know, across the country and in particular offices, with the level of commitment that I think we need to make, I'm thinking about gun violence and thinking about crimes against women across the board haven't been taken seriously enough, and we really just haven't moved the needle on the occurrence of

those crimes, accountability for those crimes. And then of course some crimes around financial fraud, tax fraud, what collar prosecutions, the cases that are really have the effect of taking money out of the pockets of New Yorkers. Tolly, let me ask a little more about areas where you actually think we need more prosecution, because one of the story that's been a recurrent theme in thinking about criminal justice reforms, certainly since I've been reading about it, is the theme

of unintended consequences. You know, we have a very good aspiration to try to, let's say, make streets safer in poor neighborhoods, so we turned to broken windows policing, and then we end up even unintentionally sweeping up lots of young people, especially young black men, who have not actually

committed any substantial crimes and then are labeled as criminals. Et. Domestic violence protection is another area where, with the best of intentions, they are all kinds of mandatory arrest provisions and mandatory prosecution provisions even in states and localities across the country, and sometimes those work well, other times they seem to backfire. How does one avoid the phenomenon that

we also see at the national scale. You know, remember it was progressives who put the crime bill into place that Joe Biden had to back away from in the last election, and lots and lots of progressives, including African American progressives, according to A James Former Junior's terrific book on this, actually supported that crime bill at the time.

Again unintended consequences. It's an important question, Noah, because I think first it reminds us to come at this with a kind of humility that not everything that we try. The work of reform is hard because some of the changes that we make may in fact not have the effects that we want them to have. But I think it also demands data and a stepping back and a constant measuring of what we are doing. So I'll give

you an interesting example. You know, one of the first studies inside a DA's office to measure racial disparities was done in I believe it was in Milwaukee, in John Chisholm's office, and he wanted to measure whether there was racial disparity and charging right if the race of the defendant was having an effect, and he was charging people of color differently when it came to certain crimes and overcharging them. And he learned something in response to that question.

But he also learned that when the victims of crime were African American, and particularly for property crimes, so someone broke into your house and stole your TV, he was undercharging. The office was undercharging those cases. It was not taking that harm against that community as seriously. And you know, so talk about unintended consequences and why it's so important to put a spotlight on what you are doing, to constantly check yourself, not just check your intentions, but check

your output. I think you have to have the courage to do that and to course correct. I wanted to ask you about your own path to coming to this run. You clerked for Merrick Garland on the DC Circuit and incredible judge. You then went on to be nominated to the Supreme Court, even though the Senate unfortunately did not give him an opportunity to be confirmed. Then you clerked for Justice Sandra Day O'Connor, not for one but for two terms. You worked in the Obama administration, as you said,

directly with Eric Holder at the Attorney General. Then you were aligned prosecutor, which I guess was a bit away from the absolute centers of power because you were putting people directly in prison. But what you're describing is really a career that at least began with a focus on the legal issues, the really hard legal issues, and then some of the biggest picture policy issues. And now you're going for a job that's really very much as in

the weeze as a legal job can be, right. I mean, it's technically speaking, it's not even the entirety of New York City. This in jurisdiction, it's just one burrow. Now, it's a pretty darn big burrow, and it's an enormously important job, but it's a job about details and nitty gritty.

What was the path that led you into that. I mean, of course, you understand the importance of criminal justice reform, but at a more personal level, why move to that nitty griddy level, you know, noelt just first say that when I hear you describe my career trajectory, I just think my offices got just less and less nice and

shabbier over the course of my career. Maybe that's not the way that you're supposed to do it, but I will tell you that the work for me became more and more meaningful as I got closer and closer I felt to making decisions that it had an immediate and discernible impact on the well being of my neighbors, right of people in communities right here in New York, for whom these decisions were just incredibly consequential, And for me, I can say that I have never done more important

work than that. I also, I've learned some things from being able to contrast it to the years that I spent in different parts of the American legal system and in federal courts, in federal prosecution and all the way

up to the Supreme Court. You know, part of it is I think that we can never isolate these systems from one another, and we need to understand where the jurisdiction of one begins, where the jurisdiction of another end, where there's overlap, where we have to work together, for example, to take on something like gun trafficking, where sometimes local prosecution has to step up in the face of inadequacy

or really dereliction of duty from the federal government or injustice. Right. So, you know, one of the things that I did as a local prosecutor in Brooklyn as we sued Ice because we thought that during the Trump administration isis policy of arresting non citizens in and around courthouses was unjust and interfering with our ability to deliver on safety for vulnerable people, because we found, particularly that women who were not citizens,

who are victims of domestic violence had basically stopped reporting what was happening to them because they were worried that by entering into even the local criminal justice system, they would trigger the deportation of themselves, of someone that mattered to them, maybe even of the defendant who was the father of their children. And I think to be able to see what you're supposed to do in the grand scheme of things, it's important, right, So I lean on

my federal years for that. The other thing is the responsibility that federal prosecutors have is very different from the responsibility that local prosecutors have. And I was humbled when I got to the Brooklyn DA's office to see what it's like to be on the front line, to really be the guaranteur of people's safety. That was not true in any of the other things that I did. Tally. You were a big supporter of Joe Biden Kamala Harris during the campaign, and I often saw your Instagram posts

of you doing various pro Biden Harris things. What should be their criminal justice reform picture, what needs to happen at the Department of Justice, which has really been at least in my view, in a very lousy, parlous state over the last four years. Yes, and a place that I really love and been very saddened to see the burdens on the department and what has happened to it

over time. So No, as you know, in the criminal justice system, only a small part of the people who pass through the criminal justice system are in the federal criminal justice system, something like ten percent of the two point two million people who are in prison or jail on any given day are federal prisoners. But I think that there is a lot that Biden and Harris can and will do to forward a criminal justice reform agenda, one that pushes forward on fairness and on safety at

the federal and at the local level. So I think the obvious starting point is policing. You know. Some of that, I guess will depend on what happens in the Senate and what the prospects of getting certain kinds of legislation through are. But certainly the chances have improved for important and transformational legislation to be passed around policing, legislation that would address some things like police misconduct through a national registry.

I've been an advocate for a long time of having more transparency around information that goes to the credibility of police officers, whether that's a collective local registry or a regional registry, or I think what's on the table is a national registry. At the federal level. I think that there are some particular practices that have been quite controversial.

They could be addressed, like whether no knock warrants should be severely limited in their use or eliminated, the kind of warrant that was at issue in the Brianna Taylor case, for example. Then, aside from legislation on policing, you asked about the Justice Department. The resurrection of the rebuilding of the Civil Rights Division at the Justice Department is I assume going to be on the day one agenda and should be and an incredibly important power that that part

of the Justice Department has. As you know, Noah has been just lying dormant. The Trump administration has objected ideologically to bringing pattern and practice investigations, and those are really important as a way for the FEDS to go into local police departments and ultimately work cooperatively with them with communities to make systemic change right beyond what you can make in a particular case where you're searching for accountability. You know, I'm excited to see an infusion of energy

and talent you back into that work. And of course, you know, I could go on, but I think policing is a pretty good place to start. We'll be right back. You came to the United States as a really little kid in nineteen seventy nine with your parents in the midst of the Iranian Revolution, and you were immigrants, and I suppose you were also refuge. How did that experience or set of experiences lead you to working in law particularly?

I think for me that was the start of everything. So, Noah, as you said, I came here as a little kid. It was actually on Christmas Eve of nineteen seventy nine.

And you know, now I can say something that I think I was quite nervous about saying over the course of many years, which is that my mother and brother and I arrived here with fake tourist visas likely in our hands, wanting to make a claim for asylum, and not even really knowing how to do that, and we were admitted into the country and given the opportunity, with the help of pro bono council, to make that claim,

and thus began ten years of immigration proceedings. You know, my parents were schlepping me to the i S Office in Newark from time to time to have some kind of incomprehensible examination or hearing, where I basically understood that what was at stake was whether we would be allowed to continue our lives in this country, even though I

also fundamentally had no idea what was going on. And all of that uncertainty only ended in the late eighties when President Reagan did a wide scale amnesty for millions of people, you know, to just end all of their legal claims and allow us to get onto a path for citizenship, which is what we did. And so I tell you that story in some detail, Noah, because for me that's my starting point. I experienced the law as somewhat terrifying, mysterious, and I was on the other side

of it. And maybe for all of us, we make choices that help us go from a feeling of being an outsider to a feeling of being an insider. And I think for me, although I could not have articulated it this way all along, I wanted to be in the role of the decision maker, having been the one being DiscId it upon in all of those years. I think that it also gives me a connection to the vulnerability of people who pass through the criminal justice system.

That has always motivated me. And when I say that, I don't just mean the defendant, but I also mean, of course the victim, the witness. Really, all of these roles. You are meeting people at the most vulnerable moment of their lives often, and I think it's a great privilege to be there. With them and to try to do justice and a kind of restoration for them in that moment.

It's an extraordinary story, Telly, And I've heard you speak about it a little bit before in terms of the emotional impact of it, But I actually there's a detail there that I actually don't think I've ever heard you

mentioned before, which was the part about the visas. I mean, obviously you were tiny, but have you been able to reconstruct some of that story where the visas in order to get you on the plane in Iran you needed to have something that looked like a US or visa but would not withstand scrutiny when you landed in the United States, so that you had to land and then immediately put that away and say we are seeking asylum or were they visas that you were also trying to present,

and if so, did that get you into the country? And then were you technically undocumented? I mean, these are fascinating questions at the Sorry sorry for having such a lawyer, but no, it's kind of astonishing. Yeah, and you know, no one's ever asked me those questions, which are technical questions but also really deep questions. And I'm still getting uncomfortable telling that story and an answer in questions like that.

So no, I did get a copy of my file after I had already become a lawyer and was able to make sense of it. And I don't have a copy of the visas, but I do know that my mother paid an exorbitant amount of money for them where we bought them in Israel from a broker who was selling them with one way tickets. So that's already a red flag, right, a two week tot visa with a one way ticket sold by a third party to you, Right,

I mean that's a pretty important fact, prosecutor. Right. I mean, these are hard things to talk about and our things to say. And what was most startling in that file, I will tell you, is a letter written to me when I was either four and a half or five years old, because I don't remember how soon I got it, you know, in the five it's addressed to me Farima far Haitian, and it says you are in possession of a fraudulent document that you have attempted to use to

enter the United States unlawfully. Please report to the following address at the following time, you know, with all of your paperwork and so you're saying the first piece of communication you ever received from the US government was a target letter. Yes, yes, and it's very scary, it is, and I have it and I sort of look at it sometimes and it still makes me, you know, uncomfortable. And my parents got their own letters, but that one

was just for me, right for a kid. And you know from your understanding of international law that of course refugees throughout time and around the world have used all sorts of means in order to be able to get to a safe place to make their claim for asylum. And a wrinkle in our case is that my very young mother with two very young kids didn't know the magic words to say at the airport, even though I

think she was trying to articulate. And it claimed that she had a credible fear of persecution in her homeland. And we were lucky to be inspected that night at the airport by a law enforcement officer who used his discretion. Well, now I'm just going to use technical words with you, because you invited me to to parole us into the country, so that means we had permission to enter, though no authorization to enter, a kind of reprieve right a safety

valve that said, come in, collect yourselves. My father I was waiting for us on the other side of border control. He had come a few months ahead of us. This officer knew this, And you know, it's really a very moving detail to me, is that he would the other end just trying to figure out where's my family. Everybody else has gotten off of this flight and not them, And an I and S officer said to him. A second law enforcement officer said to him, don't worry, you'll

see them. It's Christmas. And we came in and that small act was everything because it allowed us to figure out how to walk into a lawyer's office the day after Christmas, how to make this claim, and eventually, because the system is often it's not perfect, right, my father was granted asylum get the same claims we did. And our case just lingered and stretched out for a very long time, and maybe it wasn't even going so well

until we got amnesty. My mother, my brother, and I I'm taking away from this, I mean I'm almost speech So what I'm taking away from it is that you were able to make a life in the United States because of the act of discretion of law enforcement officials right, And here you are running for an office where the key to it is for the law enforcement officials of whom you would be the chief one on the prosecution side,

exercise their discretion every day. Yes, And you asked me at the beginning, well, is why is that so hard? Can't you use your discretion for the good right, and not for the bad? And it's in these moments where you see how hard it is. It's hard to know what kind of humanity to bring to that situation, how to think about an individual case in the context of the many similarly situated people who may be experiencing the

same thing. I mean, you know from your own experience as a lawyer, knowah that that is a fundamental tension in how American prosecutors have to use their discretion. This is something that we thought about a lot when I was working for Attorney role holder. Two principles that have to live side by side. On the one hand, you

want to treat similarly situated people the same. On the other hand, you want to come to every case really appreciating and understanding its individuality and the effect that your decisions are going to have on the individual people who are standing in front of you, and it can be hard to put those two things together. And I think that you can only do it well after lots of experience, sure, but also drawing on your own humanity and vulnerability in

making those decisions. You're really describing, I think a profound truth at the heart of prosecution in our system. You know, we might like to have a system where we know how to do it. We have rules, and then by applying those rules, we have to use the old words of the Master's Constitution, a government of laws and not of men. But if we just do it that way,

we're going to make a lot of mistakes. We're going to fail to show compassion in the way that you know the customs officers showed compassion to you and to your mother and siblings on Christmas nineteen seventy nine. Yes,

we don't want robots right running these offices. But to go back to our earlier conversation also about data and unintentional consequences, even of prosecutors with really good intentions, I think managing that discretion, leading people in the use of their discretion while not completely taking away their discretion is a complex question that, as I said, I started to think about many years ago and is very much alive inside the project of criminal justice reform at the local level.

Now to go from the sublime to the let's call it the slightly less sublime, I want to talk about podcasts, dear. So you've started a podcast, and your podcast is being produced by Pushkin Industries, which is the same production company that produces Deep Background. So we're cousins in the Pushkin world. I knew you were interested in podcasts because right around the time when we were starting up Deep Background, you

and I talked about maybe co hosting this show. So in a way, today's episode is a kind of a culmination of what was a dream for me and what I'm sure listeners listening to you will think, like, well, yeah, why didn't you do that, or why didn't you just tally do it? Talk to me about why you decided to start a podcast about running for office. As far as I know, you're the first person ever to have

done that. I think that I am. I haven't done a scientific survey, and so as you said, no, I've been interested in the genre of podcasts for a long time, and I've just been delighted to see you soar in this role, and I've been interested in it because I think that the friendliness and the long form of the podcast really allows you, as you say, to go deep into issues in a way that you would not be

able to otherwise. And as I started to put together this campaign, I thought, well, what if we did that on the issues of this campaign. I mean, we've just discussed how hard it is to do this work, and I've used the word vulnerability. I go back to that because the other sort of advice I had gotten as I was getting ready to run for office is voters rightfully want to see your vulnerability. They want to see

who you are. And someone gave me the example of, well, like you could cook on periscope to sort of show them who you really are, and I thought, that's one way. Or I could show them in this long form my heart, my mind, how I think about things, what moves me,

who are the people that I keep counsel with. And then, of course it turned out that I was running for office in the midst of a global pandemic, and then this question of can a podcast be a meaningful part of a campaign became much more interesting because obviously our ability to show the voter who we are and just to connect with people is so severely limited. And we'll see,

you know, it's an experiment. We'll see if these two things marry up and it becomes, I hope you know, over time, part of the menu of what campaigns do when they think about how they want to engage voters. But we'll see. Dolly, Thank you, this is totally fascinating and wishing you excellent luck with the podcast and better luck even than that with the election. Thanks for giving us a window into why you're running and to what some of the really challenging issues are that you'll face

if elected. Thank you so much for having me. Noah. Speaking to Tally about her campaign really brought home several different lessons to me. The first lesson was really intensely personal, because despite having known Tolly for a long time and heard the story of her immigration experience before, I had never realized just how narrow a thing it was for her and her mother even to be allowed into the

country at all. The idea that the customs officials discretion is what led her into the country on parole really brings home how poetic it is that she's now running for an office. The key component of which is exercising prosecutorial discretion correctly and morally. Another takeaway for me was

just how hard it is to do that. So many times prosecutors with the best of intentions have tried to reform and change criminal justice in the United States and have managed not to make it better, but unintendedly to make things worse. The challenge is genuinely deep, and the

problems are genuinely hard. Last, but not least, from a podcasting standpoint, it's kind of amazing that in the middle of COVID, Tally has decided to use a podcast as a component of her campaign to try to get into the living rooms of her potential constituents in ways that she can't do by going door to door. In the nearly two years that I've been doing Deep Background, I've been trying to learn every day how to do a

podcast better. The idea that podcasting can develop and change in this way is I think, kind of inspiring for a genre that's very much in development. Until the next time I speak to you, all, be careful, be safe, and be well. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia Gencott. Our engineer is Martin Gonzalez, and our showrunner is Sophie Crane mckibbon. Theme

music by Luis Gera at Pushkin. Thanks to Mia Loo, Belle, Julia Barton, Heather Faine, Carlie mcgliori, Mackie Taylor, Eric Sandler, and Jacob Weisberg. You can find me on Twitter at Noah R. Feldman. I also write a column for Bloomberg Opinion, which you can find at Bloomberg dot com slash feld To discover Bloomberg's original slate of podcasts, go to Bloomberg dot com slash podcasts, and if you liked what you've heard today, please write a review or tell a frat. This is deep background