Transcript: For the Prosecution

The full episode transcript for For the Prosecution.


Kamala: Next in Line

For the Prosecution

Joy Reid: It was around 11:00 on election night when Steve Cooley declared victory in the California Attorney General's race.

Steve Cooley: Highly paid, trusted advisers say it may be a little too early, but I'm declaring victory. (CHEERS)

Reid: At that point, he had a narrow lead over Kamala Harris. But his claim to victory was more than a little too early. Within hours, Kamala was back on top by 22,000 votes.

Brian Brokaw: Yeah, the morning after the election, returns from L.A. County came in, and they came in really strong for Kamala. And that, you know, we knew was a huge boost for us.

Reid: Her campaign manager, Brian Brokaw, was waiting and watching the returns still coming in.

Brokaw: And so, you know, over the next basically three weeks, we went through this day-by-day Ping-pong essentially of, you know, Cooley being up, Harris being up, Cooley, Harris, and at a certain point, you just had to stop letting the momentary defeats take a toll, and started trusting the projections.

Reid: Then finally, the day before Thanksgiving, Steve Cooley reversed his election night declaration of victory and called Kamala to concede. She was on an airplane just waiting for it to leave.

Cooley: You know, I think I spoke to her briefly, but before I spoke to her, I spoke to an aide. It was not a long conversation, it was just very quick. Just, you know, "I want to let you know the numbers are there. I'm conceding publicly, blah, blah, blah."

Reid: And that was it. Ultimately, he says, he wasn't surprised by the fact she'd won.

Cooley: Her strongest strength was, she was absolutely committed and dedicated to the objective of winning that contest. In that sense, total, unwavering commitment to advance herself in the political arena. Total dedication.

Reid: On Monday, January 3rd, 2011, Kamala Harris was sworn in as the attorney general of California. Flags lined the stage, and Kamala Harris looked over the podium to a standing room only crowd at the California Museum for Women's History and the Arts in Sacramento. She wore a pinstripe suit and pearls, as she calmed the crowd before starting her speech.

Kamala Harris: It is often said that a good prosecutor wins convictions, but a great prosecutor has convictions. (CHEERS) And Chief Justice Warren put it this way: "Everything that I did in my life, I caught hell for." (LAUGH) So to my fellow Californians, I say, in the coming four years and in the continuing work of the attorney general's office, we are going to do whatever it takes. We are going to do whatever it takes and catch hell if necessary.

Reid: At their one and only debate, Vice President Mike Pence launched an attack on Kamala Harris.

Mike Pence: But now, I really need to make this point. When you were DA in San Francisco, when you left office, African Americans were 19 times more likely to be prosecuted for minor drug offenses than whites and Hispanics. When you were Attorney General of California--

Susan Page: Thank you Vice President.

Pence: --you increased the disproportionate incarceration of Blacks in California--

Page: Thank you.

Pence: You did nothing on criminal justice reform in California. You didn't lift a finger--

Reid: It came toward the end of the debate with little time left for her to respond.

Page: You know, there is no more important issue than the final issue that we're going to talk about tonight, and that is the issue of the election.

Reid: But she was insistent.

Harris: He attacked my record. I would like an opportunity to respond.

Page: Let me give you 30 seconds, because we're running out of time.

Harris: I appreciate that. First of all, having served as the attorney general for the State of California, the work that I did is a model of what our nation needs to do, and we will be able to do under a Joe Biden presidency. Our agenda includes what this administration has failed to do. It will be about not only instituting a ban on chokeholds and carotid holds, not only--

Page: Thank you.

Reid: Pence's attack on her record was just the latest example of the ways in which Kamala Harris's career as a top law enforcement official has proven to be a political lightning rod. On the one hand, she's been criticized for being overly liberal, just as she was by her Republican opponent in her run for Attorney General.

On the other, as too regressive, of not doing enough to promote racial justice in the criminal justice systems she oversaw. These are criticisms that Kamala has faced throughout her career, including her time as attorney general of California. This is Episode four of six, For the Prosecution.

Harris: I've been asked many times over the last month, "What does your election mean?"

Reid: In her inauguration speech, Kamala Harris outlined what her agenda would be as attorney general.

Harris: Here's what I think it means. It means every Californian matters. No matter who you are or where you're from, young, old, rich, poor, gay, straight, North, South. Whether you've lost a loved one to violence, whether your community is being held hostage by gangs.

Scott Shafer: She positioned herself as somebody who was not a crazy San Francisco liberal-- but somebody who was going to be tough on crime, but, you know, also compassionate.

Reid: That's Scott Shafer, the politics editor at KQED in San Francisco. Kamala had won her race for district attorney by positioning herself to the right of the incumbent, and she'd won her race for attorney general by running to the left of Steve Cooley. Now, Scott and others would watch to see what kind of AG she would be. But even having your own agenda can be a tricky thing.

Shafer: You know, when you are the attorney general of the state of California, your job is to defend laws, to defend ballot measures, to defend convictions that the state has won. So in one sense, she was just doing her job.

Reid: Even though Kamala Harris had opposed the death penalty as district attorney in San Francisco, a decision that had cost her a lot of political capital, she was prepared to support it as attorney general.

Shafer: Her position on the death penalty was basically the same as the guy who was attorney general when she ran, Jerry Brown. I mean, Jerry Brown has long opposed the death penalty, still opposes the death penalty, but said when he ran for the job, that he would, although he personally opposes it, he would as attorney general enforce the law. And that's exactly what Kamala Harris said and did.

Reid: And then, there were some things where she didn't simply play the role of the state's lawyer.

Shafer: She declined, for example, to defend Proposition 8, which was the same sex marriage ballot measure, banned same sex marriage. She would not defend that when in court.

Harris: Well, first of all, I think that Prop 8 is, as the court has declared, unconstitutional.

Shafer: Now, neither did the previous attorney general, Jerry Brown, so she was, you know, keeping a consistent position. But I'm just saying that, you know, to say, "Oh, I have to defend that in court, therefore, you know, I can't talk about," or "I'm only doing it because that's my job," well, you know, she's made exceptions for that.

Reid: Soon after she took office, Kamala began meeting with attorneys general from other states, including a prominent AG from Delaware.

Shafer: There was a gathering of the Democratic Attorneys General in Sonoma, California, and Beau Biden was there. And I recall, you know, seeing the two of them in conversation. And it was clear they, you know, were not just colleagues but were friends.

Reid: Beau Biden, Joe Biden's son, was a Democrat. But Kamala was also meeting with Republicans, like, Washington AG, Rob McKenna.

Rob Mckenna: And so, after she was elected and sworn in, I flew down to meet with her in Sacramento, because we wanted the California Attorney General to be active with the others attorneys general nationally.

Reid: These three, Rob, Beau, and Kamala came from different political backgrounds, but they shared a common cause.

Mckenna: You know, more often than not, AGs work together, not at cross-purposes. You can find, of course, examples of where they'll be on the opposite sides of an issue based on party. But it's more common for AGs to work together on cases. And that's exactly what happened in the multi-state investigation of mortgage lending in the country, in which we targeted the largest banks in America.

Reid: When Kamala took office, it had been just three years since the great recession, and many home owners still found themselves facing foreclosure in homes that were worth less than their mortgages. People were desperate, and exploitation was a real problem.

Angelica Sala: So we were coming out of a recession, a horrible recession across the state. People were losing their homes.

Reid: Angelica Sala is the executive director of the Coalition of Humane Immigrant Rights. She had met with Kamala Harris about immigration issues in particular, but saw that the mortgage issue affected people across communities.

Sala: And so, what was happening was that people were fighting with the banks to try to create, I would say, forbearance agreements or just repayment agreements in order not to lose their homes. And many of these homes had been in families for generations.

But what was happening in the State of California was that banks were in many instances requiring a lot of evidence and information. People would submit it. That information would then become what they called stale, in the sense that it had expired in terms of the three months that the evidence had to be available to them. And what then would happen is, an individual would then, after doing all that work, still lose their home.

Reid: Kamala had begun to address this problem on a state level.

Harris: Good afternoon. We are here to announce the attorney general's Mortgage Fraud Strike Force. For too many Californians, what we call the American dream has turned into the American nightmare.

Reid: Now, she began to look into other ways to take action.

Harris: I've also met with attorneys general from around the country, and they found the same patterns and practices of misconduct with respect to mortgage servicing.

Mckenna: Our investigation quickly revealed that many borrowers were being told they were under consideration by their lender for a loan modification, to change the terms of their loan so they could possibly, you know, stay in their homes.

But at the same time, it turned out, they were also on a foreclosure track. And many of them didn't find out they were going to be foreclosed until they had wasted a lot of time trying to obtain a loan modification. That was just fundamentally unfair.

Reid: Along with AGs, including Beau Biden, Kamala began working to seek relief from the banks. Forty-nine states, including California negotiated 49 different settlement agreements with the banks. The initial offer from the banks for California was $2 billion. According to a story in The Atlantic, the amount would only provide a few thousand dollars of relief to homeowners. Either way, people would lose their homes. Kamala turned that offer down.

Brokaw: You know, my view was really as a fly on the wall, but from a political standpoint, she was taking a risk in turning down the earlier offers by the federal government in terms of the mortgage settlement. And she knew that she would be taking heat from her friends in Washington, including, you know, some of her friends in the Obama administration.

Reid: Three months after that initial $2 billion offer, the banks caved and gave California $20 billion.

Brokaw: Attorney General Harris negotiated a good settlement for the homeowners of her state. I mean, you can always hypothesize that if they had litigated, they might have gotten more. But I think she made the right decision at the time. She negotiated hard, even holding back and threatening to walk away for a period of time, to make sure in her own mind that she got the best deal she could without actually risking the uncertainties and the extensive delays of litigation.

Shafer: You know, she held her ground and ended up getting a much better deal for the state and for people who had fallen victim during the mortgage crisis to the big banks. And so that was a big focus of her work in that first term.

Reid: It would be the basis for her reelection campaign and an achievement she would later tout on the campaign trail for senate and then for president. But there were other parts of her record that she would face criticism for.

Bazelon: And when she calls herself a progressive prosecutor, you need to look at what she actually did as a prosecutor.

Reid: When Kamala Harris ran for reelection as attorney general of California in 2014, her campaign made much of her fight with the banks. But she also faced criticism for some of her positions.

Shafer: You know, her critics would say that her time as attorney general pointed more to her conservative instincts or her moderate instincts than to her progressive instincts.

Reid: Take marijuana.

Shafer: She opposed the legalization of marijuana until 2018.

Reid: Her opponent in the race for AG supported legalizing marijuana for recreational use.

Archival Recording: Your opponent, Ron Gold, has said that he is for the legalization of marijuana recreationally. Your thoughts on that?

Harris: I-- that he's entitled to his opinion. (LAUGH)

Reid: And even the death penalty.

Shafer: She very strongly defended the death penalty. There was a federal judge in Orange County who struck down the death penalty. And she called the decision wrong, and she appealed that decision.

Archival Recording: California's death penalty has been declared unconstitutional. Do you support that decision, or will you appeal it?

Harris: I have many clients in that matter, so I cannot talk with you about what we're doing in terms of the case.

Shafer: You know, "I can't take a position," and she used that kind of explanation/excuse a fair number of times. You know, she would sort of use the office as a reason that she couldn't get involved.

Harris: I'm personally not in favor of the death penalty, but I will follow the law, as we've been doing.

Shafer: So there were a number of cases where, you know, a progressive prosecutor would have maybe taken a different position than she did on the death penalty, on wrongful convictions, on legalizing marijuana, or at least decriminalizing it. So she wasn't, you know, she never stopped being a law enforcement official. And I think there were people who wanted her to go further.

Reid: This time, the election wasn't even close.

Archival Recording: There were no surprises in the top offices up for election. Governor Jerry Brown, Lt. Governor Gavin Newsom, Attorney General Kamala Harris, and School Superintendent Tom Torlakson, all retained their seats. Californians also considered six propositions.

Reid: Almost immediately there were rumors about what her next step would be. Would she run for governor? Would she take a position in the Obama administration?

Shafer: So there was always speculation about her.

Reid: When Eric Holder retired as attorney general of the United States, there was speculation she was in the running to succeed him.

Shafer: And she was always on every, you know, list that came out of D.C., whether it was for an eventual Supreme Court opening or attorney general or, you know, you name it.

Reid: Brian Brokaw saw an opportunity for her in a different office.

Brokaw: We started to hear rumblings at the end of the year that Senator Barbara Boxer might be announcing at some point in 2015 that she would not be seeking reelection in 2016. And we had no idea if Kamala would even be interested in running for senate.

But we knew that as her campaign team, we needed to at least do her the service of getting her into a strong enough position so that if Senator Boxer did announce that she would not be seeking reelection, that we could jump into the race immediately without having to take all the time to, you know, get our ducks in a row and ultimately, you know, lose out to somebody who was better prepared. So without having even spoken with her about her interest in the race, we essentially prepared a campaign in waiting.

Reid: And so when Boxer confirmed she would not be seeking another term.

Zach: So are you retiring?

Barbara Boxer: Zach, I am never going to retire. The work is too important, but I will not be running for the senate in 2016.

Reid: The Harris team kicked into gear.

Brokaw: And I remember hopping in a car from Sacramento, driving to San Francisco, assuming that we would have a meeting where we would all get together and come to a decision and go. And we ended up having a meeting without her where we just had no idea if she wanted to run or not. And so, we were in somewhat of a holding pattern for several days.

Reid: Brian says it was in keeping with how she made a lot of major decisions.

Brokaw: But that's not how she makes her decisions. You know, she made her decision with her family. You know, as a result, I was never really privy to what those conversations were, but at that point, she had married Doug. And I know that she was in conversations with Doug and Tony and Maya and Meena I'm sure, and deciding whether this was, you know, a race that she wanted to take on, considering she had just been reelected, you know, as a attorney general.

Reid: In the end, she made up her mind.

Brokaw: I think it was just a family decision and her gut, and it ended up being a good one.

Boxer: And she came over to the house with Doug, her husband, and we had a terrific visit.

Reid: That's Barbara Boxer.

Harris: But at that time when I met her, I didn't think, "Oh, this is a woman who's gonna be president." I just thought, what a tough race she has on her hands. And I tried to impress on Kamala how much California really needed a senator who was gonna really, really work for them.

Because we have this humongous state, and we have now 40 million people. We have two senators. That's the way it was set up by the founders. You've got states that have literally a million people, 2 million people and two senators. And we've got 40 million people and two senators. And I wanted to give her the sense of the enormity of the job.

Reid: Scott Shafer followed this new race. Throughout her time as attorney general, it had sometimes been challenging to get access to Kamala.

Shafer: It was always frustrating to us. Like, here's the hometown media, and we've just been always very frustrated at her lack of accessibility. You know, when she was attorney general, it was very hard to get her on the phone to do an interview.

Reid: But in the race for senate, he got a precious opportunity to ask her about her record.

Shafer: I mean, I was on a debate panel with her when she was running for the senate in 2016 against Loretta Sanchez and some Republicans. And, you know, I asked her a question.

Archival Recording, Shafer: Attorney General Harris, members of the Black Caucus in Sacramento criticized you for opposing a bill that would have required your office to independently investigate all deadly police shootings. And you've also so far refused a request by San Francisco's Public Defender to investigate the SFPD after racist and homophobic texts were found. My question is, why do you refuse to open civil rights investigations of police departments as Jerry Brown and Bill Lockyer did when they were attorney general?

Harris: So that's actually inaccurate. We have been actually providing oversight on the cases that are going on, not only in San Francisco but other counties in this state. I've been very open about that. And in fact, I--

Shafer: And she said that the premise of the question was wrong and then pivoted and moved on and answered her own question. And I think she's very good at that, you know. And sometimes in those debate situations, it's not always possible to ask a follow-up question. You know, so that was an example I think of her being very good at getting out of a tough spot.

Reid: The questions about whether or not Kamala Harris had been a progressive prosecutor would only increase after she won her senate race, and speculation about a run for president mounted.

Bazelon: And I didn't think it was appropriate for her to use that label, because it means something very, very specific. I wrote a piece explaining why I didn't think that was the right description for her prosecutorial career.

Reid: Lara Bazelon is a law professor at the University of San Francisco School of Law, and a former director of the Innocence Project in Los Angeles. In 2019, it was becoming obvious that Kamala would run for the White House.

Harris: And the essential theme of her campaign was going to be that she was a progressive prosecutor.

Reid: There were some things that Kamala Harris had done as a district attorney and attorney general that Lara thought were good. She liked that, even though Kamala hadn't publicly supported doing away with marijuana offenses, she hadn't pushed to prosecute them either. Still, she didn't think it was enough for Kamala to describe herself as a progressive prosecutor.

Bazelon: But it boils down to decriminalizing, refusing to prosecute certain low-level offenses, not going along with any kind of money bail which criminalized poverty, being opposed to wrongful convictions. In other words, setting up a whole unit in-- in the prosecutor's office to review those convictions and then overturning them.

If there's something really amiss, the person's innocent or, and the government committed pretty terrible misconduct to get the conviction, it means not prosecuting marijuana and quality of life offenses. And it's broadened to mean things like embracing restorative justice, for example, as an alternative to the standard criminal process in certain kinds of cases.

And the point I was trying to make was that, you can't sort of in hindsight label yourself this term, when it is a term that in some ways post-dates your tenure as a prosecutor, but also means these really specific things that, when you were in office, you did not believe in.

Reid: And so, she decided to write an opinion piece for the New York Times.

Bazelon: What ultimately motivated me was her record on wrongful convictions. And that is personal for me, not because any of those folks were my clients, but because I have represented wrongfully convicted people and come up against the implacable resistance of the state, of prosecutors who just won't listen to the facts and instead say things like, "Well, your client filed his claim too late," or "He didn't phrase it in exactly the right way."

Reid: She doesn't remember talking to anyone about the article before it published.

Bazelon: Because first of all, I didn't think that that many people would be interested in it, and I sort of doubted that the New York Times would publish it. And even if they did, I just assumed it would sort of come and go.

Reid: Her opinion piece came out on January 17, 2019.

Bazelon: It was called, Kamala Harris Was Not a Progressive Prosecutor.

Reid: And the story started to circulate.

Bazelon: I started getting all these calls from journalists wanting to talk to me about it, and then some of her advocates were putting out I think rebuttals to what I had written. And it just kind of snowballed into this ongoing controversy, was she or was she not a progressive prosecutor?

Tulsi Gabbard: I want to bring the conversation back to the broken criminal justice system that is disproportionately negatively impacting Black and brown people all across this country today. Now, Senator Harris says she's proud of her record as a prosecutor and that she'll be a prosecutor president.

Reid: It came up in the Democratic debates.

Gabbard: But I'm deeply concerned about this record. There are too many examples to cite, but she put over 1,500 people in jail for marijuana violations, and then laughed about it when she was asked if she ever smoked marijuana. (CHEERS)

She blocked evidence that would have freed an innocent man from death row until the courts forced her to do so. She kept people in prison beyond their sentences to use them as cheap labor for the state of California. And she fought (CHEERS) to keep cash bail system in place--

Reid: Thank you, Congresswoman.

Harris: --that impacts poor people in the worst kind of way.

Tapper: Thank you, Congresswoman. Senator Harris, your response? (CHEERS)

Harris: As the elected Attorney General of California, I did the work of significantly reforming the criminal justice system of a state of 40 million people, which became a national model for the work that needs to be done. And I am proud of that work. And I am proud of making a decision to not just give fancy speeches or be in a legislative body and give speeches on the floor, but actually doing the work of being in the position to use the power that I had to reform a system that is badly in need of reform.

Gabbard: Bottom line is, Senator Harris, when you were in a position to make a difference and an impact in these people's lives, you did not. And worse yet, in the case of those who are own death row, innocent people, you actually blocked evidence from being revealed that would have freed them until you were forced to do so. (CHEERS) There is no excuse for that, and the people who suffered under your reign as prosecutor, you owe them an apology.

Tapper: Senator Harris? (CHEERS)

Harris: My entire career, I have been personally opposed to the death penalty, and that has never changed. And I dare anybody who is in a position to make that decision to face the people I have faced to say, "I will not seek the death penalty." That is my background, that is my work. I am proud of it. I think you can judge people by when they are under fire, and it's not about some fancy opinion on a stage, but when they are in the position to actually make a decision, what do they do.

Bazelon: And for whatever reason, that story just sort of stayed, I think throughout her run at the Democratic nomination. My guess is that, being a prosecutor is fundamental to her identity. It's her entire career before she went to the senate. And her message was essentially, "I am going to prosecute a case against Donald Trump." Which I actually firmly believe that she can and will.

And so because it was so core to her identity, the fact that there was debate about her record, and it was a long record, was something that was hard to move away from. It was just hard to change the subject when her area of expertise and her platform was criminal justice.

Lateefah Simon: So Lara is a law professor and an advocate, and we're good people, we're friends. We know each other.

Reid: Lateefah Simon worked with Kamala in the San Francisco DA's office. She's now president of a social change foundation in Oakland.

Simon: But I read that article, and you know what I thought of? I didn't think of just Kamala.

Reid: Lateefah disagreed with Lara's assessment of Kamala, and responded with a letter to the editor.

Simon: I thought of all these Black prosecutors who are going into these racist systems, who are deeply committed to transforming systems, knowing that as a non-attorney, knowing that attorneys know how these offices work, knowing that 15, 20 years ago, that California was addicted to sending people to prison, that you have this woman who comes in, again, hires an executive team of extremely progressive folks.

And is every single day pushing against the trend of mass incarceration. This moment and historically that Black women will be persecuted by the right and the left. And always, even in this racial reckoning, Black women will always have to come in earlier and leave later and do better to get the ounce of credit that a mediocre white man would get in any sector.

Reid: For Lara, the article's enduring nature has been a bit of a problem. She wrote it at a point when Kamala was one of many Democratic presidential hopefuls. She says she wanted to correct the record on Kamala's time as a prosecutor.

Harris: To be frank, I didn't think that any of them particularly shone in this area, because even the more liberal candidates like, for example, Elizabeth Warren, hadn't specialized in criminal justice, and they weren't known for their criminal justice positions.

And while Bernie Sanders had certainly come around, he had voted for some fairly draconian criminal justice legislation when he was in the senate back in the '80s and '90s. And of course, Joe Biden was famous for that, and trying to out-tough the Republicans. So it wasn't as if there was some gold star criminal justice candidate. My feeling though was that we needed to have a very straightforward conversation about where everyone stood now.

Reid: But the situation now is very different.

Harris: And that's because she has evolved. Her positions have really changed. She's on the right side of virtually every position that I care about. She believes in decriminalizing marijuana. She believes in decriminalizing other offenses. She wants to abolish cash bail.

She wants to abolish qualified immunity, which is something than police officers can hide behind to not get prosecuted. And I think that the fact that she's come around and evolved is something that she should be praised for, rather than having to be judged for all time by decisions that she made five, ten, 15 years ago.

Deepa Shivaram: You know, there's all this rhetoric, there's all these memes, Kamala the Cop.

Reid: That's NBC reporter, Deepa Shivaram. She says Kamala's record as a prosecutor was particularly pressing when she ran for president.

Shivaram: She would get questions about that. You know, "Why are you getting this kind of backlash? You know, what should I say to my friends who think you're a cop, and how do I defend you, or how do I talk about your record?" And those were important questions. There's a lot of people who are really concerned about criminal justice issues and social justice issues. This is not a topic that you can really brush away.

Reid: It was one problem that the campaign could never quite shake, and a question that would dog her from the heady first days as frontrunner through to the final hours of her campaign.

Robin Roberts: It is great to have you with us on this special holiday. And you have an announcement you'd like to make.

Harris: I am running for president of the United States.

Archival Recording: Yay.

Harris: And. (LAUGH)

Reid: That's on the next episode. From MSBNC and Wondery, this is episode four of six of Kamala: Next in Line. This is a six-part series about the making of Kamala Harris. I'm your host, Joy Reid. Associate producers are Chris Seigel and Allison Bailey. Production and research help from Carrie Dann and Julie Tsirkin.

Production assistance from Hank Butler. Music supervisor Scott Velasquez. Managing producer Lata Pandya. Sound design by Lindsay Graham. Executive produced for MSNBC by Steve Lickteig. Executive produced by George Lavender, Marshall Lewy, and Hernan Lopez for Wondery.