Brian Lehrer: Brian Lehrer on WNYC. We were talking about the Justice Department mainly in the context of the FBI, and the politicization of investigations and prosecutions. We'll actually stay on the Justice Department now, but in an area that's also vital in our democracy but gets much less attention, the Civil Rights Division of the Justice Department. Our guest for this is Ellen Blain, former chief of civil rights for the Southern District of New York, the SDNY, that's not the Sanitation Department. That's the arm of the Justice Department Southern District, based in Manhattan. She told us off the air that she went through this during Trump one, and the press is not spending enough time talking about the civil side impact, which she says has a more direct impact on everyone's daily lives than individual criminal prosecution. Let's spend some time on that. One example she's quoted in a recent New York Times article called Trump's Victory Could Mean End of Inquiry into the NYPD's Sex Crimes Unit. Again, Ellen Blain is former chief of civil rights for the Southern District of New York, Office of the Justice Department. Ms. Blain, thanks for coming on. Welcome to WNYC.

Ellen Blain: Thanks so much for having me, Brain.

Brain Lehrer: Could you explain basically which civil rights laws DOJ enforces?

Ellen Blain: Sure. To do that, I think it might be helpful just to ground us in what DOJ does generally, because as you mentioned, so much of the publicity is about criminal enforcement, what indictments are coming down, what indictments might be quashed. That is very important. It really does not impact the vast majority of our daily lives, and it's so easy to get lost in the acronyms of DOJ, AG versus New York AG, ADA versus AUSA that I think it helps to inform our discussion and your listeners to really remind us what the vast majority of DOJ does, and that is civil enforcement.

DOJ enforces the law through civil tools, enforcing the law through lawsuits, investigations, compliance reviews, and then defends the laws from challenges brought by various groups. DOJ defends those laws from district court to the circuit court, all the way up to the Supreme Court. It's that civil stuff that really affects us on a daily basis. For example, it's why we have clean drinking water when we turn on our taps in New York City. It's why we're getting increasingly accessible schools and subways in New York City.

It's resulted in a federal monitor at Rikers Island to try to make that jail safer for the thousands of New Yorkers who are housed there and who work there. That is the type of stuff that the DOJ Civil Rights Division does. There are multiple civil rights laws that I can go into, but I think it's important to remind us that the civil rights laws within DOJ are enforced by both the Civil Rights Division, which is a component in DOJ and led by a political appointee, and that is critical. The civil rights laws are also enforced by local U.S. attorney's offices around the country, and they are also led by political appointees.

Brain Lehrer: I'm going to ask you for an example in just a second of a case that might make it clear for our listeners that you were involved in as chief of the Civil Rights Division when you were at the Southern District office. I want to say one other thing that I left out about David Rohde, with my apologies to everybody for coming back to this one more time. You can see some of his reporting in addition to his book at nbcnews.com they do publish printed things. They don't just go on television. David Rohde has reported on the things we were talking about that are in the news at nbcnews.com and they asked that I mention that. Fair enough that we mention that. When you were chair of the Civil Rights Division for our area, maybe you could give an example or two examples of a case you brought at that time.

Ellen Blain: Sure. One example is the ongoing investigation, as you mentioned, of the NYPD Special Victims Division and whether or not NYPD is engaging in constitutional violations when it does, frankly, a poor job of investigating sex crimes. Another example is Rikers bringing a lawsuit to make sure that the jail is operated in a constitutional manner. We made subways more accessible by, you'll see, and with apologies for all the construction elevators being installed throughout the system at a more rapid pace than ever before. We enforce employment discrimination on the basis of several protected categories.

We enforce housing discrimination on the basis of several protected categories. An example of that, which people don't normally think about when you think about the Fair Housing Act, is we brought the first algorithmic discrimination case by the United States, and that was against Facebook, now Meta. When you receive ads on your Facebook feed now for housing, credit, and employment, Meta cannot deliver those ads to you based on your gender or race. That is the first time that a social media giant has ever been required to change its ad delivery system.

It's that ad delivery system that makes social media giants its money. That's a powerful tool and one that only the Department of Justice has.

Brain Lehrer: This Times article that you were quoted in, Trump's Victory Could Mean End of Inquiry into NYPD Sex Crimes Unit. I see you're quoted here saying that Trump's record in his first term suggested that it was entirely possible that his administration would block the Justice Department from securing a pact with the NYPD. Why do you think that, and why do you think it would be something Trump would care about if it's an ongoing investigation into a legitimate question?

Ellen Blain: Well, look, obviously I don't have a crystal ball. I don't know exactly what's going to happen in the next Trump administration, but I do know what happened in the first Trump administration. In the first Trump administration, the AAG for Civil Rights, and again, let me pause. The AAG for Civil Rights is the Assistant Attorney General who oversees the Civil Rights Division. For DOJ to bring a civil rights case or certain investigations, including investigations into police departments, DOJ has to get approval from that person, from that political appointee.

That's a little bizarre because my criminal colleagues don't need to get approval from anybody in Main Justice when they prosecute somebody to the fullest limit of the law and can put somebody in jail for life. If DOJ attorneys want to, for example, sue a drugstore to put a ramp in front to comply with the Americans with Disabilities Act, we actually have to go to the Assistant Attorney General in Washington. Who sits in that chair matters, and last time around, the person who sat in that chair and reported up to the Attorney General did not approve any investigations into police departments.

That was a number one on the chopping block for civil rights investigations. Under the Obama administration, DOJ opened 15 pattern of practice investigations into PDs. Under Trump, we opened one, and that was a very small case. Important but small case in Springfield, Massachusetts, involving one unit, the narcotics unit. Under Biden, DOJ has now opened I believe the number now is 11. When Trump came in the first time, he made it very clear through memos that were issued publicly by his then Attorney General, Jeff Sessions, that DOJ was not to engage in enforcing laws against police departments.

We were not to engage in entering into what's called consent decrees, which are court-ordered settlement agreements requiring PDs to change their practices. It is really the only tool that we as Americans have to make sure that police departments comply with their constitutional obligations. Because if they fail to do so, they're in contempt of court. That is, again, a powerful tool. We know from Trump one, that these types of investigations are not looked upon favorably.

We also know from Trump number one, that even investigations that have reached its conclusion and there has been a complaint filed and a consent decree given to a federal judge to review and approve in two cases, the Trump Justice Department came in immediately after the election and said, ''Nevermind, Judge, I don't want you to approve this consent decree that I, the Justice Department just negotiated.'' That happened in Baltimore and it happened in Chicago and in Baltimore, the federal judge, and again, this is all public record, said, ''I don't care what you say, basically, new Justice Department.

The city wants this, the mayor wants it, the PD wants it, I'm approving it, and they're under a consent decree.'' The attorney general for the state of Illinois took up the mantle when DOJ threw it down and they are the ones now enforcing a consent decree against the Chicago Police Department. We know that those cases and investigations, either in their infancy, you know, through the possible conclusion and once they are filed and being enforced, are on the chopping block.

Brain Lehrer: A few more minutes with Ellen Blain, who was previously the chief of the Civil Rights Division in the Southern District of New York Office of the United States Justice Department, talking about what we might expect under a second Trump administration with respect to civil rights enforcement at the federal level. 212-433-WNYC. We can take a phone call or two for Ellen Blain on this. I just want to follow up briefly on that kind of chilling narrative that you just gave us where, I don't want to overstate it, but we've been talking a lot in the last few days about threats of the beginning of tyranny in the United States, threats of the beginning of fascism in the United States.

When Trump runs on unleashing the police, on not enforcing civil rights in the context of pattern and practice investigations, as you call them, of police departments, it's part and parcel with things that we saw in other countries in the 20th century. Again, not to overstate it, but if the police feel more emboldened to commit acts of brutality with the leaders of the country winking at them, depending on who the victims are, then that's not democracy. I wonder how far you would go with that.

Ellen Blain: Yes. Well, let me just say two things. Number one, I think we in New York are in a little bit of a lucky position because we do have other law enforcement agencies who are interested in enforcing civil rights. The New York AG, headed by Letitia James, is certainly a major player. City Corporation Counsel is committed to civil rights. I'm not as concerned about us in New York City as perhaps some other places, but I am concerned because when you talk about tyranny, I immediately, as a former DOJ attorney, think about Schedule F.

Schedule F is what Trump has promised to do on day one. It refers to an executive order, as I'm sure you're aware of, Brian, that he issued at the end of his past administration. Biden immediately rescinded, and he's now promised to reinstate on day one. That executive order would strip, in some estimates, 50,000 civil servants from the civil service protections. Therefore, they could be fired if they even seemed to be disloyal to the administration or the administration's agenda. Now, why do we care about that?

Obviously, it's scary for people who work in DOJ and all the lawyers, but we should all care about that because it undermines DOJ from the inside and from without. It means that when-- our system of justice and not a system of tyranny or autocracy, requires a fair administration, an equal playing field. The idea that everybody gets a fair shot, and DOJ is one of the most powerful players on that field, and we need to know that it's playing by the same rules as everybody else.

That's why when you become a lawyer for the Justice Department, you swear an oath to the Constitution, to uphold the Constitution and the laws of the United States, to follow the fact and the law wherever they lead you, and certainly in the Southern District, this is really indoctrinated into us, and I believe it deeply, to do the right thing for the right reasons. That's important because you need to know that when you're facing the Justice Department, those lawyers are following the law and not someone's bidding.

When you have a Justice Department where thousands of lawyers are now scared to tell their client, the attorney general, and frankly, the people of the United States, because that's who you represent as a DOJ attorney, an agency policy, a new guidance document, a new law is unlawful, and you're likely to lose in court. When you're afraid to say that, then you're going to have a lot of people who are going to get fired, who are going to quit or just going to put their heads down and try to do the job as best they can, and that becomes implicitly a rubber stamp for an agenda and not the enforcement of the law.

Brain Lehrer: We're almost out of time. I want to get one caller in here. I see that Allison in Vermont, who I think has been on the show before, is one of the people suing the NYPD and has a thought about the inquiry into the Sex Crimes Unit that Trump might drop, according to you. Allison, you're on WNYC. Thank you very much for calling, and I apologize in advance. We've only got about 30 seconds for a quick thought from you, so give us your best shot.

Allison: I think that if-- I am suing the NYPD specifically because of the way that my case was mishandled by the Special Victims Division. I'm terrified that if we don't see the results of this investigation by the DOJ, that we will probably never see them if we don't see them before Inauguration Day. I think that one of the most disheartening things is that all of the survivors and victims whose cases were mishandled or closed by the NYPD SVD were interviewed by DOJ and given some semblance of hope. If we don't see these results, ideally we would see a consent decree, but I don't think that will happen, sadly.

If we don't see any of these results, I understand that they're working underneath a very heightened timeline, but if we don't see anything, there are so many victims and survivors, myself included, who just would love to be validated by the DOJ. I hope that any attorneys within DOJ, and the investigators are really, really rushing again. I understand an expedited timeline, but just that they release something to give survivors and victims something.

Brain Lehrer: Allison, thank you very much for your call. I remember now when you were on in the past, and I'm so glad you called and put a human face and a human voice and an individual story on this issue that we've been talking about. Ellen Blain, to finish up, Allison almost implies that maybe it's just a hope, that maybe there's something the Biden administration can do before they finish up to seal this consent decree with the NYPD if the investigation is complete and whatever reforms into the Sex Crimes Unit they feel needs to be made is agreed to by Mayor Adams and the NYPD. Can that happen?

Ellen Blain: It hopefully can, and I will say to her point, and everybody listening, the people who are engaging in that investigation are diligent, thoughtful lawyers. These investigations just, unfortunately, take a while, as they should, because you need to get it right, both for NYPD's purposes and most importantly, for the victims and the survivors, like Allison, so it's entirely possible that something comes out before the election, but it's also entirely possible that this continues to get traction in something-- I'm sorry, before the inauguration, and it's entirely possible that something comes out after the inauguration.

There are some civil rights statutes that are generally unaffected. Unfortunately, pattern of practice PD investigations are not usually one of them, but it's certainly possible, particularly because I think we have a cooperative mayor and a cooperative PD who have said publicly at least, they want to do the right thing by the women of New York City.

Brain Lehrer: There we leave it with Ellen Blain, who was chief of Civil Rights for the Southern District of New York. That's the arm of the Justice Department based in Manhattan. The hook was her quote in a New York Times article called, Trump's Victory Could Mean End of Inquiry Into NYPD Sex Crimes Unit. Ellen's larger thought that it's not just the criminal end of the Justice Department that matters, it's also the Civil Rights Division and other aspects of the civil end, and she wanted to come on and put a spotlight on that before the administration changes. Thank you so much for contacting us about this. I'm really glad we had you on.

Ellen Blain: Thank you, Brian.

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