Justice Bent, Not Broken with Elie Honig

Episode Notes

Transcript

Elie Honig:

I am a big believer in our institutions and our structures and our checks and balances, I believe first and foremost in our justice system, in our courts and our judges, in prosecutors and defense lawyers. Not to say that any of those institutions are perfect or infallible, but I think we have really good guardrails, really powerful guardrails, and I tend to take an optimistic view of the strength of our institutions. It is true that our system discriminates based on race, wealth and other factors, but it’s also true that Donald Trump, for all the advantages he has also has been singled out for more harsh punishment and more harsh treatment in some ways.

Announcer:

That’s today’s guest on SideBar. CNN’s senior legal analyst, Elie Honig.

SideBar is brought to you by Monterey College of Law, San Luis Obispo College of Law, Kern County College of Law, empire College of Law, located in Santa Rosa and the colleges of law with campuses in Santa Barbara and Ventura.

Welcome to SideBar discussions with local, state and national experts about protecting our most critical individual and civil rights Co-hosts Law deans Jackie Gardina and Mitch Winick.

Jackie Gardina:

Mitch, whenever I hear how Donald Trump claims to be a victim of a two-tiered system of justice, I think of Khali Browder. At 16, Khali was arrested in New York City for allegedly stealing a backpack. His family couldn’t raise the $10,000 bond, so he was held at Rikers Island for three years waiting for trial. Much of it in solitary confinement. Although he was eventually released when the charges were dropped, he never recovered from the experience and ultimately committed suicide. So as surprising as it may seem, I actually agree with Donald Trump that there is a two-tiered system of justice, but it isn’t one that victimizes Donald Trump. Quite to the contrary, the system that abused Khali Broder penalizes the poor and uneducated. While the system that caters to Donald Trump favors the rich, the powerful, and the well connected, sadly there are too many examples of rich and powerful people not being held accountable for their criminal conduct. How is it that a country that prides itself on its adherence to the idea that no man is Above, the Law can have such disparate outcomes?

Mitch Winick:

Jackie, what we’ve seen is that wealthy individuals such as Donald Trump have the resources to manipulate the system to their personal family and business benefit and get away with alleged fraud and criminal misdeeds that would shut down typical businesses and subject ordinary people to years behind bars. Although it was a civil fraud case and not a criminal case, it’s hard not to draw comparisons between the injustice of Kalif Browder, who was not offered an alternative to his $10,000 bond, and Donald Trump who had his $500 million appeal bond lowered to 175 million, a 65% reduction even after publicly bragging that he had the resources to pay. Although the benefits of being rich and powerful are not new, the legal aspects of this phenomenon are currently playing out in a very public way on TV and in the courts, including the US Supreme Court. That is why we are thrilled to have our guest today, attorney author, former federal prosecutor and CNN Senior legal Analyst, Elie Honig, to join us to discuss these issues. Elie previously worked for 14 years as a federal and state prosecutor, eight years with the US Attorney’s Office for the Southern District of New York, and then five and a half years at the New Jersey Attorney General’s office. Elie provides commentary and analysis for CNN related to criminal justice, national security, and other complex legal issues. He’s the author of Untouchable How Powerful People Get Away With It. Welcome to SideBar Elie.

Elie Honig:

Hi, Jackie Mitchell. Thank you for having me. I’m thrilled to join you. So I guess I’m giving away a little bit of an industry secret by where I’m situated, which is this is not actually the US Supreme Court behind me. It is an image of one that we use here at CNN, although it is a live shot, so if a bird flies by, you will see it. Thank you for having me. Looking forward to discussing the book. It’s interesting your opening commentary on Khali Browder, I do think absolutely points up. Of course one very well known, documented, and I don’t just mean this case, but one very well known, well-documented, thoroughly discussed way in which our justice system discriminates based on race, based on wealth, based on resources, based on access, all those things. And I also agree that, and this is sort of a thesis of my book, that powerful, wealthy, famous people get away with a heck of a lot more, but I also do think that it’s not quite apples and oranges to say, well, really the people who suffer in our justice system are poor people, minorities, and therefore Donald Trump only benefits because there have been ways, including ways that have emerged over the last year, six months, six days, where Donald Trump is being treated differently, and I would argue worse than an average criminal defendant in his situation overall, he has a lot of built-in advantages, but I don’t believe those cancel out some of the ways in which his constitutional rights are being pushed maybe to extremes, maybe to the limits.

Look, it’s no secret I’m not a fan of Donald Trump politically personally. I mean, I make that quite clear in my books and my on air appearances, but I’m also not willing to bless countenance excuse, explain and celebrate some of what I believe are the abuses that we’ve seen from prosecutors and judges directed towards Donald Trump. I’m not saying he’s on the same level as a Khali Browder, they’re completely different stories. I’m not comparing them. It is true that our system discriminates based on race, wealth and other factors, but it’s also true that Donald Trump, for all the advantages he has also has been singled out for more harsh punishment and more harsh treatment in some ways.

Jackie Gardina:

Elliot, it’s hard not to follow up on that opening by you. We definitely want to talk about your book and the broader issue of what are the benefits that are accorded to those with money and power. But perhaps you could articulate for the listeners what you see as some of the ways in which he is being unfairly treated during this process.

Elie Honig:

First of all, the whole book is about the advantages that rich powerful people have. But I’ll give you one example that I like and it’s funny because it used to make me nuts as a prosecutor, and now it’s really become much more recognized, much more widely. I told a story in the book about how whenever we would do a large scale mafia takedown 1422, however many defendants, Genevieve’s family, Gambino family, you always knew who the lawyers would be who would appear in court the next day at the arraignment because a lot of them were paid for by the boss, by the family. And the natural impact of that is it made it much harder for people to cooperate. And I used to pound my head against the wall saying, oh, come on, they’re house lawyers. They’re stacking the deck to make sure that the lower level players don’t turn on the big players, but there wasn’t really much judges could have done about it.

We see Donald Trump do this all the time now, right? I mean, think about the Trump org has paid for legal fees for Cassy Hutchinson for a while, person who have come to know and I really respect her, she has said publicly that while she had a Trump paid for lawyer, she did not feel like she could come fully clean. And she actually has said publicly, she did not tell the full truth to Congress while she had a Trump paid for lawyer sitting beside her. But when she struck out on her own and got herself a conflict free lawyer, only then did she feel safe and willing to come out with her full testimony, which we all saw very memorably a couple summers ago. And the thing that people may not realize is this happens all the time, and by the way, it’s not always wrong or bad or nefarious.

When a corporation comes under criminal investigation, often the corporation will offer to pick up the legal fees and provide lawyers for all the employees, and often people want that. It’s expensive to pay for a lawyer, right? If I was just some witness at a big corporation and we started getting subpoenas, I would probably prefer for them to pay for a lawyer for me and to provide a lawyer for me. But one thing that I also want to say is DOJ bears some responsibility here too because I did some research and I found that up until 2008, it was the official written policy of the Justice Department that if we are investigating you as a corporation and you are paying for your people’s lawyers, we understand and you understand that that means they’re less likely to cooperate or cooperate fully, and therefore we will count that as a strike against you in deciding whether you are cooperating or not.

In 2008 with a stroke of a pen, the DOJ changed that policy. They said, actually, if you pay for your people’s lawyers, it’s totally fine. We will not count it against you. And if you want to blame the Republicans or the Democrats, go ahead, because that has remained the policy since oh eight through the Bush administration, the Obama administration, the Trump administration, and the Biden administration, and it’s not been changed. So it’s sort of built in institutionally in ways that people may not recognize, and I do think Donald Trump’s conduct in paying people has really sort of highlighted how this becomes a problem in getting the full truth about somebody.

Mitch Winick:

Elie, let me take a slight spin off of that. You talked about the lawyers that Donald Trump brings in and the organization brings in, but in your book you also talked about what you considered the bag men of the folks who were doing the work of mob bosses and that frequently they ended up being prosecuted at much higher levels of penalty than the original mob boss, Rudy Giuliani, Michael Cohen, Roger Stone, Paul Manafort, Steve Bannon, Peter Navarro, Alan Weissberg. I mean, some of ’em are in jail, some of them been in jail. Isn’t that part of this theme as well? Not only do the rich and powerful get to hire a lawyer to represent others, but the lawyers they hire sometimes end up taking the fall.

Elie Honig:

For sure, and it’s not just lawyers, it’s all sorts of people around rich and powerful people. I think the Trump scenario is a great example of that. I mean, one of the benefits of being that the top of a corrupt organization is you’re surrounded by other corrupt people. So when they testify against you, you say exactly what trump’s defense. I think with good cause, by the way, said about Michael Cohen, which is how can you the jury convict someone based on this admitted liar, this admitted thief, this person who’s done such horrible things. We deal with that as prosecutors all the time. I mean, I made my living as a prosecutor by flipping really bad guys, mobsters, murderers, that kind of thing. But whenever you have a hierarchy, it gets tougher and tougher to climb that ladder. I do put a lens on do j’s own institutional policy.

It is a written policy of DOJ that if you are about to indict or take action against a public figure, a public official, somebody who’s likely to generate media headlines, you have to get higher and higher levels of approval in order to bring that charge. Inherently, that is an advantage for the potential defendant because the more people who have to look at something and sign off, the more chances there are of somebody going, no, I don’t see it. No, I’m not in favor of it. And I tell a couple stories in the book of cases of mine where people were given higher levels of more intense scrutiny because they were famous or wealthy or close to a political power player. Now look, there’s natural reasons for that. As a prosecutor, the last thing you want is to take on a high profile fight that you’re going to lose, but again, it naturally advantages powerful people.

Mitch Winick:

We’re going to take a quick break and when we return, we’re going to continue our conversation with Elie Honig, CNN, senior legal analyst and author of Untouchable, how Powerful People Get Away With It,

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Jackie Gardina:

I want to follow back up on something that you just talked about, which is really a topic of attorney conduct and as you noted, you wrote in your book Control, the Lawyers Control the game, meaning that if the powerful person pays for the legal fees of the individual who may incriminate them, he can control whether they cooperate with the government. And you said that DOJ actually accepts that in some ways, and Trump has definitely used this tactic, takes the king’s coin, do the king’s bidding, is what you quote in your book.

Elie Honig:

That’s my dad. I’m sure he’s quoting somebody else, but my dad likes to say that

Jackie Gardina:

We’ll credit your dad for that. Lawyers owe ethical duties to the client that they’re representing not the one paying their fees yet we seem to accept that they will act this way. And in fact, in your book, you actually note that in the mob context and you say, and that’s unethical, short sentence, and then you move on. Isn’t that part of the problem that the legal profession and it’s apparent abandonment of previously expected ethical behavior?

Elie Honig:

We all have our pet issues and this one is mine. I used to light my own hair and fire about this raving. Nobody would listen to me. I’m shaking my fist at the clouds, but let’s put it this way, anytime somebody gets arrested or indicted any defendant, you have three options. The results are mathematically shown to be an increasing order of bad results. So from worst to best result as a defendant, you can go to trial. If you out, the percentage of people get convicted and the sentences they get out of trial that is going to be your highest risk, highest exposure, your middle outcome is pleading guilty, just straight up pleading guilty. You’ll do a little better, you’ll get some time off, and your best result is to cooperate, and I don’t mean this by any means as a public service ad for prosecutors, but if you look at the sentences that people get, it’s the best outcome. Now, if you’re a defense lawyer and you meet with your client as some of these guys do and don’t even advise them as to option three, as to the cooperation option, then you are not providing adequate assistance to your client.

Mitch Winick:

Elie, in your book you also mentioned that creating fear of retaliations and other tactic that allows the powerful people to remain untouchable. Obviously this has been openly discussed during the current Donald Trump trial and in his Florida federal trial before Judge Eileen Cannon, a gag order was imposed in one judge refused to impose a gag order in the other. You’ve got two cases, two separate outcomes so far. Can you help us understand how a court should balance the free speech rights of a defendant with the protection of the integrity of the process and the people involved?

Elie Honig:

Yeah, it’s a great question. Look, I did the easy kind of cases, the mob cases where anyone can understand. Obviously people are afraid to testify. Obviously people are afraid to flip because they’re going to be physically harmed, right? It’s more subtle in the Trump context, although not much more subtle. It’s a bit more subtle in the Trump context, but it really exists anytime you’re thinking about, should I flip on the ceo? That’s scary, right? Financially, personally, familially maybe in the Trump context, his form of retribution is political and reputational and personal. And I use as an example, in the first impeachment, the Ukraine impeachment, there were 10 Republicans who voted yes to impeach in the house, and Trump made a whole big public thing of I’m going to take ’em all out one by one. At one point he said two down, eight to go, three down, and I think all of them are close to all of them are now out of Congress, had been primaried.

Adam Kininger disclosure, a guy who I’ve become good friends with, he decided not to run, not because he feared Trump, but he felt no longer connected to the leader of his party. And you just go down the list. A lot of them were defeated in primary, some of them chose not to run. Just think about having a tweet sent out about you by Donald Trump. To however many people follow his truth in tweets, it means it’s tens of millions of people and that is scary stuff. And I think one of the challenges that judges have had in all these Trump criminal cases and by and large have done a good job on, is finding that balance. As you say, Mitchell, people do have first amendment rights, very broad First Amendment rights. So let’s look at the gag order that Judge Marshan has put in the New York case.

I think the judge hit it on the head right there because originally some prosecutors, Jack Smith, originally in his January 6th case actually asked for I think an inappropriately broad gag order. He asked the judge, he said, you should prohibit Donald Trump from making any derogatory comment about anything to do with this case that would infringe on Trump’s first amendment rights. And Judge Chuck and to her credit said, no way. That’s way too broad. And instead, she crafted a much more narrow one, which is essentially the same one that now exists in the New York case, which basically says Trump can say whatever the heck he wants about the indictment, about the da Alvin Bragg, about the judge, about the gag order itself. He just can’t talk in a negative public way about witnesses, jurors, court staff, and prosecutorial staff and family members, and I think that’s the exact right balance.

Every court of appeals that’s reviewed, these have said that’s the right balance. It’s actually quite narrow. He can say false things. He can say crazy things. He can say outrageous things. He can say offensive things about the judge, about the prosecutor, about the charge, about the gag order, and he’s still within the gag order. So we need new nomenclature here because when you hear gaggle, you think of Indiana Jones being bound and gagged and he can’t talk at all. It’s no such thing. It’s like a mild restraint on the most outrageous speech designed to protect our justice process.

Jackie Gardina:

And I want to keep the focus on attorneys because as you noted, everybody has their thing and this is mine. I really think that we have exposed the unfortunate dark side of the legal profession in the last four to eight years. So we’ve kind of hit on defense attorneys. You’ve said it’s not just defense attorneys, it’s prosecutors as well as you described, prosecutors can simply decide not to indict an individual and the public never knows why. For example, why did Alex Acosta the US attorney in Florida give Jeffrey Epstein a pass and never disclosed to the victims the deal he received? Why did Sance overrule his prosecutors decide not to indict Donald Jr and Ivanka Trump on fraud charges in the early two thousands or refuse to act on credible evidence that Harvey Weinstein engaged in sexual assault? Again? It seems like powerful people are protected by lawyers in the system, the very professional supposedly dedicated to the rule of law who are supposed to avoid even the appearance of impropriety. What can or should the profession do to counter this?

Elie Honig:

In the book, I focus primarily on prosecutors who didn’t bring charges that they should have, and the reasons are sort of complicated sometimes I think there’s an intermixing of politics and fundraising. As with Sance, he made his decision after a lawyer who had given an enormous amount to his campaign, came in for a meeting, and then Vance tried to return the money when he got caught, and then he later took another donation and then he returned that. I forget the exact sequence, but it’s something like that. Alex Acosta, you talk about who gave Epstein a ridiculous pass back over a decade ago before Epstein was a household name. Acosta was the US attorney in Florida. There’s been a lot of conspiracy theories. My conclusion, and I actually quote an a USA on the case who said the same thing. I think he just wimp out. I think he just didn’t want to take on the fight.

Epstein brought in Dershowitz and Ken Starr and the prior US attorney, and I think Acosta was just, I don’t want this fight. I actually don’t think it’s anything more corrupt than that, but there are various reasons why prosecutors wimp out. Harvey Weinstein’s been in the news a lot lately. He was convicted and then the conviction was just overturned, but Sance also gave him a pass early on when he had Harvey Weinstein on tape basically saying, I do this all the time. That one I also think was he just didn’t want to take on that particular individual and establishment. But I do want to say, and I guess we alluded to this earlier, there are also instances of prosecutors overreaching against Trump, I believe, and we can get into that too, and both of those things can be true. Sometimes prosecutors get scared or get warned off a case because they don’t want to take on the battle or maybe they don’t want to ruffle feathers. And then I think there’s times when prosecutors see opportunities that Trump presents and have overdone it.

Mitch Winick:

We are going to take a quick break when we return. We’re going to continue our conversation with Elie Honig, senior CN legal analyst and author of Untouchable, how Powerful People Get Away With It.

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Mitch Winick:

Elie, let me take a shift to a slightly different topic. You’ve previously written that it’s commonly understood that the Justice Department can’t indict a sitting president. Evidently, this policy was initiated by a 1973 Justice Department internal memo. It’s not a rule, it’s not a statute, it’s not a judicial determination, and we know that the Constitution itself is silent on the issue. Congress has never weighed in and no prosecutor has yet put it to the test as a former federal prosecutor who served in an office that actually considered this issue and given the current Supreme Court case on presidential immunity and the other cases pending against former President Trump, can you share your thoughts on this issue with

Elie Honig:

Us? So I’m going to give you a controversial answer to that in a moment. People sometimes say, DOJ cannot indict the sitting president, but that’s not quite correct. The accurate way to say it is DOJ has long ago decided that it doesn’t want to and shouldn’t indict the sitting president, and if you look at those memos, they’re public. As you say. The original one came out during Nixon and then it was revisited during the whole Clinton aftermath obstruction and the Monica Lewinsky scandal, and essentially it’s one of these documents which you’ll be familiar with as lawyers and law school deans and professors that looks all legalese there sites and all this, but it’s really not a legal document because we have no answer. It’s really a practical document above all, and there’s all these sort of mind bending hypotheticals. How would we function with an imprisoned sitting president?

What if Congress refused to impeach an indicted president? All of that, and they basically come out, they don’t say it this way, but they basically come at it like it just wouldn’t work. Let’s take the Trump out of it. So sometimes it helps to digest a thorny question if you just pull away from Trump, because Trump, let’s be honest, has a way of distorting people’s views pro and con. Think about Joe Biden. There was a special prosecutor, Robert Hur, who investigated Joe Biden for retention of classified documents. Now, Robert, her’s end result is yes, Joe Biden had classified documents. Yes, he had ’em as far back as 2017. Yes, he knew it, but it doesn’t merit indictment. But what if Robert Hur had come out a little bit different and said he did have classified documents in 2017. He did know it, and I find this is a willful violation.

Would it have been the right outcome? Would it have been the good result here? The result we wanted for Robert, her to have indicted Joe Biden last year, and now we have the sitting president under indictment by his own DOJ maybe going to trial right now, maybe even theoretically getting locked up. All you have to do is tweak her’s, report 10 20% to get to an indictment. He’s pretty close to an indictment, but he says, not quite, but would that be a good outcome for our country or would it be better to say you can’t indict a sitting president, but when he is out of office and the policy clearly says this when he is out of office, go for it. So I think it would be the much better policy if we waited until Joe Biden’s out of office, whether it’s in 2025 or 2029 and then dealt with it then. I just think it’s an impossible scenario for us, not impossible, but a really problematic scenario to have an indictment and potentially trial. If you’re okay with indicting the sitting president, you have to pretty much be okay with then trying him and imprisoning him. I just don’t think it works given the way our executive branches is structured under the Constitution. Under Article two, I

Jackie Gardina:

Wanted to follow up on something that’s pending before the Supreme Court. It was recently argued in the Supreme Court that without blanket immunity from indictment and prosecution, a democracy cannot function. This is more than an argument that the office of the President would be impaired, the argument that democracy itself would falter or fail, but there are lots of examples such as France and Israel, Italy, South Korea, South Africa, and Iceland, where democratically elected former leaders were indicted for criminal acts without developing into civil chaos or authoritarian regimes or war.

Elie Honig:

You’re reading that right? That’s from my book, yeah.

Mitch Winick:

We’re just testing to see if you remember your

Elie Honig:

Book. Okay. All right. I just want to be clear. I was like, oh, that’s a good sentence

Jackie Gardina:

And I’ll say this at the end as well. For listeners, it’s a great book and it’s so accessible to non-lawyers to those who aren’t familiar with the criminal justice system. But let me continue with my question. I believe that as a democracy with a system of legal checks and balances, we have the capacity to distinguish between criminal wrongdoing and political retribution. But going back to your initial point that some people are untouchable, I’m concerned that history has demonstrated that authoritarian regimes have evolved from these very questions and concerns. Are you concerned about the future of our democracy?

Elie Honig:

First of all, I’ll take the end of your question first. I am a big believer in our institutions and our structures and our checks and balances, and I believe first and foremost in our justice system and our courts and our judges and prosecutors and defense lawyers. Not to say that any of those institutions are perfect or infallible, but I think we have really good guardrails, really powerful guardrails. We survived the first Trump administration, not by much when you look at January 6th, but we survived it, and I tend to take an optimistic view of the strength of our institutions. Now, let me talk about immunity. I mean, I say in the book, we love the phrase, no man is Above the Law, but really, I mean you have to say except one mean the President has all sorts of extra protections from executive privilege. Almost nobody else can invoke executive privilege, the ability to pardon people.

I argue in the book I say, look, we have a long history of shady, ugly pardons, but Trump weaponized them to his own benefit by pardoning people to basically eliminate any incentive they might have to flip on him, he managed to turn the part and power to his own benefit. Immunity is a little bit misunderstood and in a couple respects. First of all, blanket immunity and absolute immunity are misleading phrases. Donald Trump, if you look at what his lawyers argued in their briefs, they’re not arguing that he’s automatically immune for everything he does from the moment he took office in January 20th, 2017 until the moment he left office January 20th, 2021. What the Supreme Court clearly is going to take up is there are certain circumstances where a president or any federal official should not be criminally indictable for something they do within the scope of their job. And if that sounds outrageous to people, it shouldn’t because we’ve had civil immunity on the book since 1982.

The Supreme Court said, no, you can’t sue any civil officer for something they do in the scope of their job. People have to make difficult decisions every day. We don’t want them being worried about or having to deal with the consequences of getting sued. The way it was explained to me when I started with DOJ is if someone sues you because you subpoenaed them or because of something you say in court, you’re covered, you’re immune. But if you go out on the weekend and get in a bar fight and injure somebody, you’re not immune because that’s outside the job. Now the presidency is different because it’s much harder to draw those lines when you’re president, you’re kind of always president, but Trump’s lawyers definitely over argued in the way that you laid out Jackie. I mean, it’s ridiculous for ’em to say if he’s not given immunity, our democracy will collapse because by the way, we don’t know whether there is criminal immunity.

It’s never been decided by the Supreme Court and we’re fine. We haven’t had it officially since this nation was founded and we’ve not collapsed. So I think that’s a ridiculous way for Trump’s team to argue it, but I think argued properly the way the Supreme Court was interested in it, it wouldn’t at all shock me or frankly offend me if they come down with a ruling saying basically the same rules of civil immunity. If a president or anyone gets indicted for something they did within the scope of their job, they’re immune now. I think it’s a ridiculous argument by Trump’s team to say he was within the scope of his job. I think it’s clear that what he was doing was well outside the boundaries. So I could definitely see a ruling along the lines of the following from the Supreme Court. We do recognize criminal immunity of federal officials including the president. The immunity only covers acts within the job or maybe within the even narrower core functions of the job, signing legislation, vetoes, that kind of thing. But I also think there’s going to be an important but attached, which is but or and you need to now do fact finding to decide whether he’s inside or outside the scope. And I actually think Judge Tuck who’s done a good job so far, missed the boat when she failed to do that.

Jackie Gardina:

I just want to follow up on something that you said at the beginning of your answer, which is that you believe deeply in the institutions. The institutions are really the pillars that hold up our democracy. We have an assault on those institutions happening by attorneys, by congresspeople, by senators, and there is a drumbeat that our institutions are corrupt and flawed. What kind of effect do you think that’s going to have on our ability to continue to push forward to that more perfect union that we always talk about?

Elie Honig:

I have a lot of confidence in our institutions, but I also am very critical of them. I think they’re far from perfect. I mean, my book is filled with criticisms of our institutions, and I agree that our institutions were under and have been under unique types of challenges and assaults since the Trump years, and which even continues today to an extent, even though he’s not in office. But I also think our institutions are always under challenge and always being put to the test well before Donald Trump. Here’s what I think is changing the most though, is just the willingness to outright spread and embrace falsehoods. And there’s not a lot we can do about that because the First Amendment in many circumstances, protects lies. The assaults on what’s happening in our country now are different because I think just the prevalence and the shamelessness with which lies are started and spread and shared. I don’t have a great answer to that, but I do my best and we do our best here at CNN. To set the record straight,

Mitch Winick:

We’re going to take another brief break when we return. We’re going to continue our conversation with Elie Honig, senior CNN legal analyst and author of Untouchable, how Powerful People Get Away With It.

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Jackie Gardina:

Elie, we always try to end our episodes with a question about the future. Okay. The issue we’ve been discussing go to the very essence of our legal and political system. Do you think this is just another episode in our history that will pass, or are there fundamental changes under the way that might be altering the nature of our legal system in a much more permanent way?

Elie Honig:

I think more the latter. I do think we will get past this, but I also think nothing really ever passes. I actually think what will end up with a similar legacy to the Nixon era, which is we asked ourselves and were forced to confront a lot of questions that never occurred us before. I’ve said many times, Donald Trump makes all the law school hypotheticals come to life. Who would’ve ever thought we’d be debating some of these questions? I think we’ll be better for it. I think it’s a stress test that will make us stronger. I do worry a bit about the politicization of the bench. Our Supreme Court now is fully just a political body. It’s a shame, and I think it’s led to politicization of our judiciary. And look, there is increasing politicization of our prosecutors, and I think there’s a particular incentive problem when we talk about elected prosecutors who run for office as these are ours. I was lucky I never had to work under an elected prosecutor, but I do think the incentives for an elected partisan prosecutor to bring an indict, just bring it against a very unpopular person of the other side are a real problem. And I really object to prosecutors running for office on the explicit promise that if you elect me, I will nail this person. I don’t accept that.

Jackie Gardina:

Elie, you have given us a ton to think about and talk about and really appreciate you taking a break from the C Nnn desk during the Trump trial to actually speak with us. So thank you.

Elie Honig:

Thank you again. This has been great.

Mitch Winick:

Elie. Thank you very much. I echo what Jackie said. You’ve given us exactly what we wanted, lots of things for us and for our guests to think about.

Elie Honig:

Oh, you have to include this. Then David, I gather you’re the producer. So David, you have what appears to be a very large vinyl collection behind you. Here’s my question to you. If you could only grab one of them, God forbid if your place caught on fire, I see Jackie and Mitchell are laughing. God forbid this won’t happen, but if your place were to catch on fire and you only had time to grab one vinyl disc, what are you grabbing?

David Eakin:

My origination story is that it was 1963 and my brother used to listen to the coasters in the fifties and the sixties, and he would practice pretend fighting like a gangster in the living room. And I was in the hallway peeking at him, and when he put the Meet the Beatles on, I said, that’s it.

Elie Honig:

My dad had a vinyl collection, a pretty darn good one. I mean, 100th the size of yours. I always thought their albums are square and lame and old people stuff. And I remember my dad, I see you like Springsteen. Take a listen to this. And he had Born to Run. I just remember the needle drop on the opening drum riff of Born to Run. It was the only time I ever, oh my God, I wish that moment was on tape because I think my hair blew back. It’s back in now. The kids like vinyl now. It’s great.

Jackie Gardina:

Thanks, Elie.

Elie Honig:

Thank you. I appreciate it. It was great to meet both of you. And again, thank you for accommodating my ridiculous schedule.

Mitch Winick:

Jackie. This was a fabulous episode with Elie Honig. Elie’s right in the middle of some of the most exciting and challenging issues going on in both the judicial, legal, political, and social aspects of our country. Right now, it’s the first criminal trial of a President of the United States. These are major issues that may change as you asked him about the very context of how the justice system works and how the American public thinks about it. And I’m just appreciative of the fact that he is such a deep thinker about this, sitting at the desk at CNN and has some really thoughtful challenges. Questions we were asking him.

Jackie Gardina:

I agree. First of all, just really enjoyed the conversation, and I think one of the themes that I kept trying to bring out is this idea of attorney conduct. And we did touch on the Nixon era and how the Nixon era definitely had an effect on our legal and political system. And one of the things that came out of the Nixon era was actually the ABAs requirement that all law schools include professional responsibility within their curriculum. And that was after so many lawyers had participated in some of the bad conduct that occurred during that time. So the question for me is not, well, what are you going to do about it? Which is something that Elie said others had commented on in terms of attorney misconduct. But what do we need to do about it to ensure that attorneys are playing that really important role that I think we play in our society, which is guardians of the rule of law and being our best professional selves when we are supporting and backing democracy and not just serving a particular client.

Mitch Winick:

Another thing Elie brought forward is an expansion of your idea of judges have an even more critical role, and he pointed that out again and again, that judges have the opportunity to keep the system fair, to keep the system balanced, to help us understand the process, and to keep the focus on access to justice. Elie seems to be a strong believer that the system will write itself. I have more concerns, but I certainly hope he’s right.

Jackie Gardina:

Once again, I want to thank everyone who joined us today on SideBar, and as always, Mitch and I would love to know what’s on your mind. You can reach us at SideBar media.org.

Mitch Winick:

SideBar would not be possible without our producer, David Eakin, who composes and plays all of the music you hear on SideBar. Thank you also to Dina Dowsett who creates and coordinates sidebar’s. Social media marketing.

Jackie Gardina:

Colleges Of law and Monterey College of Law are part of a larger organization called California Accredited Law Schools. All of our schools are dedicated to providing access and opportunity to a legal education to marginalized communities.

Mitch Winick:

For more information about the California accredited Law schools, go to ca law schools.org. That’s ca law schools.org.

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