Latest / Words & Numbers / Episode 457: Weaponizing the DOJ

Transcript

Episode 457: Weaponizing the DOJ · Words & Numbers

0:00
Next on words and numbers, Erica Kirk, Acupuncture President
0:04
Donald J Trump relative to Erica Kirk.
0:08
And Clark Neely joins us to talk about the weaponization of the
0:11
Department of Justice. All this and more next on Words
0:13
and Numbers, which is a civil original podcast.
0:16
Check us out at civl.com. Hi, I'm James.
0:20
And I'm Anthony. And this is words and numbers.
0:27
So what's new and exciting in your world this weekend?
0:31
Something interesting I've I've talked to you about this before
0:34
with regard to your your chronic back pain and you kind of well,
0:39
at least the last time we talked about it, you Pooh poohed it,
0:41
but that, but I have something for you.
0:44
Chronic back pain is gone under clinical trial.
0:48
Specifically, they're looking at the efficacy of acupuncture and
0:53
this is not some fly by night organization.
0:57
Kaiser Permanente Center for Health Research enrolled 800
1:02
participants over 65. They all had medical history of
1:06
lower back pain. A third of them received 15
1:10
acupuncture treatments over three months.
1:13
Another third received an additional 6 acupuncture
1:16
treatments over the following three months.
1:18
And the other three got some kind of medicine, whatever it is
1:21
you give usually for back pain in and what they found was
1:27
significant effects of the acupuncture.
1:30
This is being published now in the Journal of the American
1:33
Medical Association in. All right.
1:35
Couple of things, Couple of things.
1:38
I'm just guessing that Kaiser Permanente would be very happy
1:43
to replace back surgery with acupuncture.
1:46
Oh sure they would be, but you? Know.
1:49
I mean, if we're going to go that route, then we just have to
1:53
throw up our hands for all studies.
1:54
The fact is, it's being published in JAMA.
1:56
No, not, no, not at all. There would be a perfectly
1:59
legitimate way to do this study. One would be to do exactly as
2:04
they did, bring acupunct trained acupuncturists whatever training
2:08
they go through and to do whatever thing they do.
2:13
The other would be to have somebody come in and just stick
2:17
needles into people randomly. Yeah.
2:19
Well, I'm giving you the headlines here.
2:22
So I haven't read the study. I'm sure that, I mean, these are
2:25
scientists. I'm sure that they've done
2:26
whatever 1 needs to do to make that.
2:29
I mean, again, they're publishing in JAMA.
2:31
This is one of the top medical journals.
2:34
But I mean, there is a notable placebo effect with acupuncture.
2:38
Yeah, yeah. Oh, yeah, yeah, yeah.
2:39
But all of this is, is actually a footnote to the thing I
2:43
actually wanted to say, which is acupuncture dates back 3000
2:49
years. And as an economist, when I look
2:52
at something that has persisted for a long time, I have to
2:57
conclude it's more likely than not that there's something,
3:02
there's some reason for this. This, if you recall, this was
3:06
the your clinching argument after years of you and I going
3:11
back and forth about government and I was staunch anarchist
3:16
saying no, there's no need for government.
3:18
And finally you made the argument that look, government
3:21
itself is, is the result of spontaneous order.
3:24
Never has there been a society that in which government didn't
3:28
emerge. Now I've got it as an economist,
3:30
I've got to stop and take that seriously.
3:32
This is something that humans keep doing over and over and
3:35
over and over again. It's it's more likely than not
3:40
there's some good reason for it. So too, here we have
3:43
acupuncture. Push back on that too, a little
3:46
bit. So too, humans did, over and
3:50
over and over again. The burning of witches and the
3:53
enslaving of people. Yeah, and so too, over and over
3:55
revolution and and. And look, there were reasons for
4:01
these things, they just weren't particularly good ones.
4:04
So look, I'm, I'm ambivalent about the whole thing.
4:08
I'm interested to see right, because if there's even a
4:12
scintilla of hope that it saves somebody the ridiculous amount
4:17
of pain I went through for a number of years and and you had
4:20
to see it first hand right up until my back surgery boy.
4:26
Which I have, I have told, I have told people, most recently
4:31
our friend Clark Neely, who's joining us on this episode, that
4:34
you are since that surgery, which was just a matter of
4:37
months ago, you're a new person. You're you're the James I knew
4:42
15 years ago. Better because my back pain
4:46
started 30 years ago. Shout out to those nice people
4:49
at the Mayo Clinic who cut me open and sent me on my way the
4:52
next day. And I wanted to share something
4:56
that I'm sure everybody has seen by now.
4:59
But as we record this, it's Monday afternoon, the day after
5:03
the Charlie Kirk Memorial here in Arizona, my, my beloved home
5:09
state. And I didn't watch the whole
5:11
thing. I, I, I, I don't know if I can
5:15
watch the whole thing. I mean, it's it the religious
5:18
revivalism element of it was a bit over the top and the MAGA
5:23
ISM of it was a bit over the top.
5:25
So it's not exactly the kind of thing I sit and watch, but I sat
5:29
down and and watched Erica Kirk's remarks on YouTube last
5:34
night. And while they were
5:38
extraordinarily religious, I mean, OK, it was her microphone.
5:42
But right in, in maybe 2/3 of the way through, she took a deep
5:47
breath and forgave the man who shot and killed her husband.
5:53
And boy, I, I don't know that I could have done that.
6:00
And I, and I think in my heart that forgiveness is an
6:03
extraordinarily important thing and we should always, all of us
6:07
be a lot more forgiving than we are.
6:09
But 11 days, I believe it was after her husband was murdered
6:13
in front of her. She forgave the man who did it.
6:18
And I, I just didn't want an episode to pass between, you
6:22
know, that and whatever else happens down the road without
6:25
holding this up as a tremendous example of what the human heart
6:30
is capable of. And this is astonishing.
6:34
Hats off to Eric Kirk. Yeah, I, I have nothing to say.
6:38
Well, I I'll say one thing. This is how this is how true
6:42
peace begins. Because the alternative, the
6:46
alternative is eye for an eye, and it keeps going back and
6:49
forth for generations. Until the whole world is blind,
6:54
a wise man once said. Two things always come up at
6:58
moments like this when I try to fathom the depths of the
7:03
goodness of the human heart. And, you know, usually I, I'm
7:08
more inclined to see the bad side of things.
7:10
I'm a pessimist by nature. I don't think anybody's going to
7:13
be terribly surprised to hear that.
7:15
But when, when you think about, and this, I think we might have
7:19
talked about this on Juneteenth, the capacity of former slaves to
7:25
just get on with their lives without seeking retribution.
7:29
How on earth did they do that? That's amazing.
7:34
And then when you turn your attention to South Africa during
7:37
the the later Mandela years with the the Truth and Reconciliation
7:42
Commission, where people who had done horrible things could walk
7:47
in, tell the story, admit to it, turn around and walk out no
7:55
matter how bad the story was. Wow.
7:58
I mean, that's amazing. It's the hardest segue to this
8:01
we've ever done. But this, of course, brings us
8:04
to the foolishness of the week. And the foolishness of the week
8:09
comes from the exact same flipping event right after Erica
8:17
Kirk spoke. Donald Trump got to have the
8:21
last say. He got to close the show, and he
8:25
said, what did he say? I'll just read you from a a news
8:29
story that gets the quote Striking a far different tone
8:32
from that of Mr. Kirk's widow, Erica, who spoke immediately
8:36
before him, Mr. Trump said he disagreed with Mr. Kirk's view
8:40
of wanting the best for one's opponent.
8:42
I hate my opponent and I don't want the best for them, he said.
8:47
He added. I'm sorry, Erica.
8:50
Wow. So even at the Charlie Kirk
8:55
Memorial, he had to find a way. Just had to find a way.
9:00
He didn't have. To be a hateful Jack wagon.
9:04
Not only did he not have to do that, it's going to cost him.
9:07
I saw some reference to a poll. I haven't seen the poll, but I
9:11
saw a reference to it indicating that his popularity skyrocketed
9:16
after after all of this business.
9:19
If he's going to keep the goodwill of of people,
9:22
particularly Center, Center America, he's got, he's got to
9:26
back off from that. Yeah, well, yeah, I mean, I say
9:29
it all the time. People born round, don't I
9:31
square. Yeah.
9:33
He is exactly as he is. He's incapable of anything else.
9:36
But of all moments that maybe, just maybe, it, it could have
9:42
been better. But look at the look at the
9:45
difference between the two. And on the surface, he's coming
9:50
out with strength and she isn't. But if you think about it,
9:55
actually it took far more strength for her to forgive than
9:59
it does for him to hate. Yeah, and you know, I don't, I
10:03
don't want to belabor it. I can't look into that woman's
10:06
soul any more than I can look into anyone else's.
10:09
I don't. I don't know how she came to
10:12
this. I'm, I'm, I'm certain that a
10:16
faith that she is publicly espoused for a very long time
10:20
had a lot to do with it. I just don't know that I could
10:23
have been anywhere near that forgiving under those terrible
10:27
circumstances. So hats off to her.
10:31
She provides an example that people can actually follow.
10:35
Get Words and Numbers on civil.com and on Civils TV and
10:39
mobile apps. Regular episodes are free.
10:42
Sign up for an annual membership to support our show and for
10:45
access to member exclusive content.
10:48
Clark joins us this week. Clark, you've been a guest on
10:51
Words and Numbers. Many times I say, Clark, and I
10:53
shouldn't say that because new people who are coming in don't
10:56
know you. This is Clark Neely.
10:58
You are vice president for I don't know you're.
11:01
Vice president for legal studies at the Cato Institute.
11:03
At Cato, Clark and James and I have worked together many times
11:07
over decades, and anytime we have some interesting legal
11:12
question, we go to Clark. Clark is some, well, I was going
11:14
to say one of the few people, actually, you're the only person
11:17
I know who's ever argued something at this or been
11:19
involved with an argument at the Supreme Court.
11:21
That was the backup quarterback. And of all cases, of all cases,
11:26
it was the Heller case, yeah. I was, I was the backup
11:29
quarterback for the Heller argument, so I had to be ready
11:31
to give the argument, but I didn't get to say anything.
11:33
But for for people who aren't up on it, the Heller argument is is
11:37
what is it fair to say it's the latest linchpin in protecting
11:41
our rights to keep and bear arms?
11:43
Not. The latest, but it was the
11:44
watershed because for 200 years the Supreme Court said nothing
11:48
about the the, the meaning of the Second Amendment and
11:51
specifically whether it protects an individual right to own
11:54
firearms. And so the Heller case from 2008
11:57
is the one that my colleagues Bob Levy and Alan Guru and I
12:00
brought to the Supreme Court, in which the court finally answered
12:03
that question and said, yes, there have been basically three
12:07
Supreme Court decisions since then.
12:10
Well, actually 2 fleshing out the scope of the right and and
12:16
what and and and what tests to apply in in assessing the
12:20
constitutionality of of various gun laws.
12:22
Those of us who listen to words and numbers are now watch words
12:27
and numbers. People will know that typically,
12:31
Clark, we just wind you up a little bit and then you you kind
12:36
of take it from there. And our attorney general has
12:39
done some things, said some things lately. 1st, we were
12:45
going to start prosecuting hate speech, which she walked back
12:48
pretty quickly after, you know, all of her political supporters
12:53
said, what the hell are you talking about?
12:55
You know, things like this. But as if on cue, our fearless
13:00
leader and big toe Donald Trump rides into the rescue with a
13:05
post on on Truth Social, which I'm sure you've seen, but a
13:10
number of people out there won't have seen it and actually will
13:14
be probably better off for that. So allow me to read this aloud
13:19
and we'll we'll just consider this the wind up and you can go
13:23
wherever you like after this. Donald Trump says directed to
13:28
Pam Colon. I have reviewed over 30
13:31
statements and posts saying essentially same old story as
13:35
last time. All talk, no action, nothing is
13:38
being done. What about comedy?
13:40
Adam, Shifty Schiff, Letitia, they're all guilty as hell, but
13:45
nothing is going to be done. Then we almost put a Democrat
13:49
supported US attorney in Virginia with a really bad
13:52
Republican past, awoke Rhino, who is never going to do his
13:57
job. That's why two of the worst Dem
13:59
senators pushed him so hard. He even lied to the media and
14:04
said he quit and that we had no case.
14:07
No, I fired him and there is a great case and many lawyers and
14:12
legal pundits say so. Lindsay is a really good lawyer
14:16
and likes you a lot. We can't delay any longer.
14:19
It's killing our reputation and credibility.
14:22
They impeached me twice and indicted me five times over
14:27
nothing. Justice must be served now.
14:30
President, DJT Clerk, what do you make of this?
14:34
Famously, President Trump has said not to drink alcohol, which
14:38
is almost impossible to believe when you see tweets like this.
14:43
Like this is the kind of thing that the rest of us sometimes
14:47
get a little too much alcohol in you and you and you.
14:50
Rant in all caps. But this is the president of the
14:54
United States issuing what is unmistakably an order to his
15:01
attorney general in public, I guess if we can call the truth
15:05
truth social public and prejudging the guilt of multiple
15:12
potential defendants and in effect, telling the attorney
15:16
general, you know, make sure these people get what's coming
15:21
to them. And there's there's more than a
15:25
little bit of the Red Queen here, right?
15:26
Like conviction first and trial afterwards.
15:28
But that's basically what he's calling for.
15:31
Doesn't he, by doing this sort of thing, kind of offer a
15:36
perfect defense for these people were they ever to be dragged
15:39
into court for much of anything? No, for several reasons.
15:43
First, because courts bend over backwards to basically constrain
15:48
defendants ability to, you know, make an argument like, hey, the
15:52
president of the United States prejudged my guilt and then
15:55
ordered his attorney general to to get me by hook or by crook.
16:00
And so that's not really the way our system is supposed to work.
16:04
That's all true, but good luck finding a legal doctrine that
16:08
would provide you with a sort of powerful argument where you
16:12
could say, hey, look, you know, existing precedent requires that
16:15
the charges against me be dropped because of the
16:18
president's diarrhea of the mouth.
16:21
The other problem, of course, and long time listeners won't be
16:24
surprised to hear me say this. The Department of Justice has
16:28
become very adept at ensuring that very few of its criminal
16:32
prosecutions actually end up in front of a judge in any
16:35
meaningful way. They do have to file the case,
16:38
but they are very adept at getting people to waive their
16:42
constitutional right to a trial, their constitutional right to
16:46
due process, and simply plead guilty after exerting
16:50
extraordinary amounts of pressure on them to do so.
16:52
In fact, 98% of all federal criminal convictions today come
16:56
not from constitutionally prescribed jury trials, but
16:59
instead through guilty pleas, many of which are very clearly
17:03
coerced. And I think that the I don't see
17:05
any reason to believe that the Department of Justice wouldn't
17:07
be successful in coercing at least some of these defendants
17:10
to plead guilty if it comes to that.
17:11
Now, will it come to that? I couldn't say.
17:14
But the president certainly seems very serious about
17:17
ensuring that comedy and company end up on the wrong end of a
17:21
federal criminal prosecution. Clark, you've talked about this
17:24
before and, and I want to underline it because I was, I
17:28
wasn't aware of this until you first said it to me maybe 10
17:31
years ago. But I think it's really
17:33
important that something Americans need to talk a lot
17:36
more about, and that's this combination of plea bargaining
17:40
and charge stacking. Well, it's, it's so charge
17:43
stacking is, is a term that's used to describe when
17:46
prosecutors come up with creative ways to increase a
17:50
defendant's exposure by charging them either with multiple crimes
17:53
for the same act or a more serious crime than the conduct
17:57
really merits. I'll give you an example.
17:59
If you were to go into a store and grab a pair of, you know,
18:04
shoes or a game or something like that, you're running out of
18:08
the store and you, you kind of put your hand on the security
18:13
guards chest to move them out of the way of the door so you can
18:15
get through it. Technically you can charge that
18:20
as a robbery because robbery is the use of force to effectuate a
18:23
theft. Now is that really robbery?
18:25
Of course not, that's just shoplifting.
18:27
But a creative prosecutor could increase your exposure from
18:31
whatever shoplifting would be probably a few months, six
18:34
months at most, I would guess in most jurisdictions to robbery.
18:37
Now you're looking at something more like 5 or 10 years.
18:39
The point of that would not be that they actually think you
18:42
should do 5 or 10 years because you robbed that store.
18:45
They are just trying to increase the strength of their hand when
18:50
the inevitable, inevitable plea offer comes and and charge
18:53
stacking is just the tip of the iceberg.
18:54
There's countless different ways that prosecutors have to exert
19:00
leverage on defendants to plead guilty, which is again, why more
19:04
than 95% of criminal convictions in our system, meaning both
19:07
state and federal systems, come from guilty pleas instead of of
19:12
jury trials. And I think there's no more, I
19:14
think, disturbing and damning statistic in all of our criminal
19:18
justice system than that one. Because if you think that a
19:23
guilty plea is 100% assurance that someone was in fact guilty,
19:30
I've got a stack of exonerations.
19:32
I can show you that that show that that's wrong.
19:34
And that's a pretty terrifying thing when prosecutors have
19:36
enough. Power to do that.
19:37
So to underline this, whether it's through charge stacking or
19:41
something else, we've got a situation where the DA is put
19:44
is, is taking somebody who's been charged with a crime piling
19:50
on enough weight such that when the DA comes along and says, OK,
19:57
plead guilty and we'll make all this big stuff go away.
20:00
The person says, yeah, regardless.
20:02
And you gave a good example. This was that case couple years
20:06
ago. College, the college admittance
20:08
scandal out in California. So this is the Varsity Blues
20:11
investigation. It was actually prosecuted by
20:13
the Boston US Attorney's Office. So these are the Feds.
20:17
Many people will be familiar with this.
20:19
There was a variety of Hollywood celebrities and East Coast
20:23
lawyers and investment bankers that undertook various efforts
20:27
to get their kids into colleges that they would not have gotten
20:30
into otherwise. At one end of the spectrum, you
20:32
had people who literally hired a ringer to come in and take the
20:35
SAT fraudulently for their kid. At the other end of the
20:38
spectrum, you just had people who cut an unusually large check
20:41
to the sailing team and then had their kid, you know, manipulate
20:45
their resume to make it sound like they actually, you know,
20:48
qualified to be on the sailing team.
20:50
There were about four dozen criminal prosecutions that arose
20:55
out of that 54, I believe, criminal prosecutions, 50 out of
21:00
54 defendants were induced to plead guilty.
21:04
And generally speaking, this is what they were looking at.
21:07
The average plea offer was about two months, and anyone who
21:13
didn't immediately agree to plead guilty was advised by the
21:16
US Attorney that he would go and seek a superseding indictment
21:19
from the grand jury in which they would include a fresh
21:23
conspiracy to commit fraud charge, for which the punishment
21:26
could be up to 20 years. Now, you're probably not going
21:29
to do 20, but you might well do 7 or 8.
21:31
And of course, given the nature of the case, what these people
21:34
all had in common is they all had kids.
21:37
And if you were to threaten me with seven or eight years in
21:40
federal prison and then offer to let me off the hook for two
21:43
months, I'd sign whatever you put in front of me.
21:45
I wouldn't even ask to read it. That's how they get convictions
21:50
these days in both the federal and the state systems.
21:52
And I'll add one more thing. And there was some of this in
21:54
the Varsity Blues case. They're even allowed to exert
21:57
pressure on a defendant to plead guilty by threatening to indict
22:01
your family members as long as they have probable cause to
22:05
believe that one of your family members has committed a crime,
22:07
which, news flash, they always will.
22:09
Because we have so many crimes, it is perfectly permissible for
22:13
them to use that as a bargaining chip.
22:15
And if you agree to plead guilty, waive your right to a
22:17
trial. We won't go after your wife.
22:19
We won't go after your kids. And I think that's pretty gross.
22:24
And it happens. Lovely family there, be a shame
22:27
if something happened. And we know that happens enough.
22:29
That's not documented, but but it happens enough that nearly
22:32
every single federal Court of Appeals, so 10 out of 12 federal
22:35
courts of appeals have had occasion to rule on whether it
22:39
is constitutional to exert plea pressure in that manner.
22:42
And every single one of them has said, Yep, no problem.
22:44
I want to drag us back. Not that I don't think all of
22:47
this is incredibly important, I really do.
22:50
But I want to get back to this idea of weaponizing the Attorney
22:54
General of the United States, and presumably therefore the
22:57
entire Department of Justice, to get even with one's political
23:03
enemies. Now, we're all adults here, and
23:06
I'm not going to ever claim that this kind of thing doesn't or
23:10
hasn't happened. Of course it does, and of course
23:13
it has, but boy this is the most bald faced version of it I've
23:17
ever seen. Yeah, it's bad.
23:20
And actually it's a great illustration of why half the
23:23
Bill of Rights is about criminal procedure because it is such a
23:27
dangerous system when the government chooses to weaponize
23:31
it. The British did that to the
23:32
colonists in pre revolutionary times.
23:36
They, they dragged American colonists into British Admiralty
23:43
courts where they would not get a jury and the judge would be,
23:46
you know, basically a puppet of the crown.
23:49
And so the, the framers of the Constitution were perfectly
23:52
aware just how dangerous the criminal justice system can
23:56
become when it is pressed into service as a tool of political
24:00
payback and oppression. And that is precisely what's
24:03
happening now. That is the very essence of the
24:06
order that Donald Trump gave to Pam Bondi in the in the True
24:09
Social Post that you read earlier, James.
24:11
It's kind of horrifying right when because if you, if you
24:13
trace out exactly what this could end up meaning.
24:18
And and I think Trump is very typically short sighted here.
24:22
He he almost always is. You can bet, just like you know
24:27
that the sun will rise in the east and set in the West, that
24:31
the next Democratic administration will waltz in and
24:33
do precisely the same thing. Yeah, unfortunately, I think
24:36
there's a lot to that. I mean, a lot of our system
24:41
depends on norms. In other words, rules that are
24:45
established through history and tradition and customs more than
24:52
through constitutional text or even statutory text.
24:55
And those norms are getting shredded, absolutely shredded.
24:59
You know, I, I yield to no one in my willingness to heap scorn
25:02
and abuse on the Department of Justice because it's so often
25:05
deserves it. But there are some very
25:08
principled and decent people who work in the US Department of
25:13
Justice. They try to do the job properly.
25:15
They try to push back when others want to, to abuse the
25:20
process, take shortcuts or, you know, misuse their power.
25:25
And the ability of people within the Department of Justice to
25:30
effectively push back and say, look, this, this is not how we
25:33
do things. We, we, we have certain
25:36
standards and, and we should stick with those because at the
25:40
end of the day, you cannot have a well functioning criminal
25:44
justice system. You cannot have a well
25:45
functioning Department of Justice unless it has earned the
25:49
trust and support of the people. And a Department of Justice that
25:54
behaves like the one we're we're seeing now under Pam Bondi
25:58
absolutely does not merit public trust and confidence.
26:00
To the contrary. Let me ask you a very hard
26:03
question and I, and I do think it is a very hard question and I
26:06
don't think I could answer it. What was the last Department of
26:10
Justice that you actually trusted?
26:13
I don't think I would say that I've trusted AUS Department of
26:17
Justice for at least 50 years because that's when that's
26:22
basically when it went dark because, and I hate to beat a
26:27
dead horse or beat this drum too much, but when the vast majority
26:32
of criminal prosecutions are resolved through a non public
26:37
procedure, IEA guilty plea, then you lose that element of
26:44
sunlight that's necessary to to to to be confident that an
26:51
agency is operating legally and in good faith.
26:56
And so a, a public adversarial court proceeding is an excellent
27:02
way to make sure that things are on the up and up.
27:03
They won't always be, but it's a, it's a really powerful way to
27:06
expose potential misconduct, corner cutting, unethical
27:11
behavior by prosecutors. And So what we saw was it in the
27:17
basically in the 1970s and early 80s is when we saw plea
27:22
bargaining really just take over the whole system.
27:25
Above 90% of cases were resolved through guilty pleas at that
27:29
time. And once you have fewer than 10%
27:32
of cases playing out in public, I think you lose the
27:34
disinfecting effect of sunlight. Too much stuff goes on behind
27:38
the scenes. There's too many opportunities
27:39
to cover up for bad, you know, police work, bad work by FBI
27:44
agents, whoever was involved, prosecutorial misconduct,
27:47
etcetera. All of that can get swept under
27:49
the rug as long as you can induce the defendant to waive
27:51
all of the rights and plead guilty.
27:53
So I don't think it's really a question who is running the
27:55
department. I think it's a question of how
27:57
the department operates. And for at least the last 50
27:59
years, the US Department of Justice on the criminal side has
28:03
operated at best in a twilight zone.
28:05
But much of his business takes place in a in a dark closet.
28:10
So there's two things here. The the 1st is, are we picking
28:14
on the Trump administration? Yes.
28:17
But we also would literally pick on any other administration for
28:22
the last 50 years. So I, I just want to get it out
28:25
there because we're often accused of having Trump
28:28
Derangement Syndrome. And I believe if people go back,
28:32
they will find us having precisely this conversation in
28:36
the Biden administration and maybe even during Obama at the
28:40
very beginning of words and numbers.
28:42
But the, the 2nd and more important thing is the
28:45
constitutional right to a jury trial.
28:48
One of those things in the Bill of Rights that you you talked
28:50
about earlier is actually now all form and no substance.
28:55
And, and it's even more horrifying because, believe it
28:57
or not, the right to a criminal jury trial is the only right
29:01
that is mentioned twice in the Constitution.
29:03
It's it's mentioned in Article 3, Section 2 of the unamended
29:08
Constitution. And then just for good measure,
29:11
they put it in the 6th Amendment two years later.
29:13
One would suppose that it that that the fact that a given right
29:16
is the only one that's mentioned twice in the text of the
29:18
Constitution might mean it it was of some importance to the
29:22
founders. And of course it was.
29:25
It's one of the only things that the Federalists and the anti
29:27
federalists agreed upon was the importance of of public
29:31
adjudication being done transparently and in the open.
29:35
And we have completely subverted the constitutional prescription
29:40
for for transparent adjudication of criminal charges.
29:45
And I think there's, I'm not sure I could point to a greater
29:48
disaster in, in terms of policy and the rule of law then the
29:54
fact that both at the state of the federal level, the
29:57
government is able to accuse, convict and punish people
30:02
without ever putting its cards on the table, without ever
30:05
submitting the evidence it supposedly has to public
30:09
scrutiny and adversarial testing.
30:12
And our system was never designed to work that way.
30:14
Why do you think it came to this?
30:17
It's just basically the two most powerful actors in the system
30:21
are judges and prosecutors, and mass plea bargaining makes both
30:24
of their lives much easier. It's a it's a lighter lift.
30:28
There's more certainty and when you get the defendant to waive
30:31
all their rights, it doesn't come back to bite you.
30:34
And so it's just very humid. It's simple, I would say public
30:37
choice economics. The water seeks its own level
30:41
and people tend to go for what's easy and certain as opposed to
30:43
what's challenging and difficult and uncertain.
30:46
But I'm, I'm looking around for the adult in the room.
30:50
You know, I mean, we could point to Congress.
30:51
Of course, Congress doesn't do much of anything anymore.
30:54
But what about the Supreme Court?
30:56
Has the Supreme Court at no point, you know, been aghast at
30:59
this and say something's got to be done?
31:01
He had the. Opportunity.
31:02
And it waived that opportunity in a, in a case of a 1978 case
31:05
called Borden Kercher V Hayes, which involved a state
31:09
prosecution, I believe in Kentucky, of a guy named Paul
31:13
Hayes for, for writing a bad check for less than $100.
31:17
The prosecutor so that the the punishment, the statutorily
31:22
prescribed punishment for that crime was 2 to 10 years.
31:25
The prosecutor offered five. Mr. Hayes decided he wanted to
31:30
go to trial, so he rejected the plea offer.
31:32
And the prosecutor said, well, if you insist on exercising your
31:36
right to trial, what I'm going to do is I'm going to re indict
31:38
you as a habitual offender because I know you've got 2
31:40
prior convictions. And then the punishment you're
31:44
looking at, the maximum punishment won't be 10 years,
31:46
it'll be life. So he literally tried to exert
31:51
plea leverage by threatening a life sentence when he had he was
31:58
trying to leverage leverage A5 year plea offer with a life
32:01
sentence threat. And it's hard to imagine I I
32:05
short of threatening somebody with death, which is also
32:07
permissible according to the Supreme Court, it's hard to
32:10
imagine something much more coercive than saying, well, if
32:12
you don't like 5 years, how about life?
32:14
And that went up to the Supreme Court after Hayes went to trial,
32:18
lost and got a life sentence. Then the Supreme Court said,
32:20
hey, you know what? Unless you can show that this
32:22
was something personal, that the prosecutor was exhibiting some
32:26
kind of specific animus towards you, This was a right that you
32:30
had, you put, you were, it's your choice to waive it.
32:33
And the prosecutor didn't threaten you with anything that
32:36
was unlawful or that that that was not legal for him to do.
32:39
So this is just a straight up business transaction in effect.
32:43
And of course, it's nothing of the kind.
32:44
This was nakedly coercive, but the Supreme Court decided to go
32:48
along with it. This was at a time when, you
32:51
know, plea bargaining was was looked at as this kind of wasn't
32:55
innovative because they've been around for more than 100 years
32:57
by this point. But it was this very efficient
32:59
way of processing criminal cases through a system that was really
33:05
overburdened in many ways and would become even more
33:09
overburdened during the, you know, the, the, when the drug
33:12
war really hit its stride in the 1980s and 1990s.
33:15
So two things are true. Yes, coercive plea bargaining
33:18
violates the Constitution. And no, the Supreme Court is
33:21
never going to take a serious look at any single case to see
33:24
whether there was coercion. They don't want to know.
33:27
Yeah, and I can, I can you you talk about the court system
33:31
being overburdened. And immediately I'm thinking,
33:33
OK, well, if we're overburdened because there's crime
33:39
everywhere, you can see the need for efficiency, at least at a
33:44
practical level. But if you're overburdened
33:46
because Congress has spent its time making things illegal, that
33:50
has no business making illegal, that's ridiculous.
33:54
And now, and you say this was 1978, That's 50 years ago.
33:58
Right. No, it's so, so there's this
34:00
has, there's no big debate about whether we have such a thing as
34:03
mass incarceration. Some people would say, hey, we
34:05
don't have mass incarceration. If anything, we've got under
34:08
incarceration because we know that less than half of people
34:11
who commit crimes ever get caught.
34:12
So so we we're actually we should be locking up more
34:15
people. Another thing some people
34:16
disagree on is whether we are over criminalized.
34:18
Do we have too many criminal laws?
34:22
Reasonable people can differ about what laws should be on the
34:25
books, of which one should be enforced and how many people
34:28
should be in prison at any given time.
34:30
But here's a really, I think, important litmus test.
34:35
If you want to put somebody in a cage because they did something
34:38
you think they shouldn't have done, But only if you don't have
34:44
to show up for jury service, right?
34:45
So plea bargaining embodies the following idea.
34:48
I'd really like to put that guy in prison for the thing he did,
34:51
but not if I have to take a couple of days off for work to
34:54
be in a, you know, part of a stupid jury trial.
34:56
So again, I think following the constitutionally prescribed
35:00
procedure of a jury trial ensures that we as society are
35:04
really serious about it, that that, yeah, you deserve to go to
35:10
prison for what you did. And if that means we have to
35:12
spend the money and time and 12 people have to take off however
35:15
much time from work or school or away from their families to
35:20
participate in your trial and, and find whether you are guilty
35:24
beyond a reasonable doubt, again, I think it's a pretty
35:27
good litmus test. And if you find that you're not
35:30
willing to do that, maybe you shouldn't be putting that person
35:32
in jail. Words and Numbers is part of the
35:35
Civil Network. Civil is a streaming platform
35:38
dedicated to upgrading civilization by exploring better
35:42
ways for people to organize, innovate, and thrive.
35:46
At Civil, we believe that societies flourish when their
35:50
members honor the civic equality of all people and engage with
35:54
one another through cooperation. Civil seeks great minds from
35:58
around the world to share bold ideas for fostering healthy,
36:01
dynamic societies. By creating space for honest
36:05
disagreement among people who share a commitment to building a
36:08
better future, Civil offers a refreshing alternative to
36:12
divisive punditry and insular echo chambers.
36:16
Words and Numbers is freely available, but those who
36:18
subscribe to Civil will access exclusive content, including
36:22
regular live streams and conversations with remarkable
36:26
people who are working to build a better society.
36:29
For more information and to subscribe, visit civil.com dot
36:33
C, civl.com. Use the code words and numbers.
36:37
That's one word for 50% off an annual subscription.
36:42
Let me go back to to James and his original topic of
36:46
weaponizing the Department of Justice and tie it into what
36:50
you're talking about now. So my understanding is before
36:54
you ever get to the point of plea bargaining or the question
36:58
of whether or whether you will or will not have a jury trial, a
37:02
grand jury has to come up with an indictment.
37:05
And also my understanding from conversations with you, that's
37:10
far too easy. Grand juries just indict.
37:13
Well, the phrase is it'll indict a ham sandwich if you ask it.
37:17
Yeah, that's a famous. How do you, how do you, how do
37:20
you bring responsibility to the grand jury, which now becomes
37:24
like the the next? If the AG level has failed us,
37:28
the grand jury seems to me to be the next place.
37:30
Well, the good news about our criminal justice system is that
37:32
it's designed in a way that that that features multiple fail
37:35
safes and and redundant layers of of safety mechanisms.
37:39
Now, the bad news is that prosecutors and judges have
37:41
learned how to disarm most of them.
37:43
But as written, the system has multiple levels.
37:46
And one of the first line of protection is a grand jury
37:50
requirement for a grand jury indictment.
37:52
And we've actually seen this working properly for the first
37:54
time in a long time. You may have heard about that.
37:57
There was this incident here in DC where, and this is almost too
38:01
perfect, a trial attorney for the Yep, the trial attorney for
38:06
the US Department of Justice was getting in the face of some, I
38:10
think it was a Department of Homeland Security agents who
38:13
were out on the street and he was trying to provoke them and,
38:16
and he was getting spun up by the crowd and people were
38:19
filming him. So he ended up throwing a Subway
38:21
sandwich at one of the Homeland Security guys.
38:26
He was caught federally charged with felony assault on a law
38:31
enforcement officer and the grand jury refused to indict.
38:36
And we've seen that happen multiple Yep, we've seen
38:38
multiple times. Same thing happened out in
38:40
California. A woman was charged with felony
38:42
assault on a police officer for some similarly ticky tacky
38:45
physical contact. They wouldn't indict.
38:47
So it's funny because what we're actually seeing, and I don't
38:51
want to suggest that we're seeing this across the board,
38:53
we're seeing this more sporadically, is some grand
38:57
juries acting the way they were supposed to and they were
39:00
intended to act, which is as a real check on the ability of of
39:05
prosecutors to bring abusive cases.
39:10
Now, usually what happens is the grand jury just acts like a
39:13
bunch of train circus seals because they've they've they've
39:16
become captured by prosecutors. There's no judge in the room
39:20
with a grand jury. There's no defense attorney in
39:22
the room. The grand jury is just a
39:23
prosecutor. And the grand jurors and
39:26
whatever witnesses the prosecutor chooses to put in the
39:28
room and tell their side of the story, there's no requirement to
39:33
give two sides of the story. There's no requirement to
39:36
explain any of the defenses that the defendant might have.
39:38
So grand juries have largely been captured by prosecutors.
39:41
But every once in a while we see them pushing back and saying,
39:45
you know what this is, this is BS.
39:48
We're not, we're not going along with this and that.
39:49
And, and to their credit, that's happened so recently.
39:52
So what happens here when of course with double jeopardy, you
39:56
can't be tried for the same crime twice.
39:59
But can you be? Can can the District Attorney
40:03
have a second bite at the apple by later on with perhaps a
40:06
different composition of grand jury, refile the charges?
40:11
Double jeopardy doesn't actually attach until a jury A, A, a not
40:14
grand jury, what we call a Petit jury, meaning a trial jury has
40:17
been impaneled. And so there's no, there's no
40:20
double jeopardy from having your case presented to a grand jury.
40:23
They can present that case to a multiple grand juries and guess
40:26
what they do? And so if they can't get an
40:29
indictment from grand jury A, they can take the exact same
40:32
charge as the grand jury B and see if they can get an
40:33
indictment there. And they've done that before.
40:36
What they're what they've done in this case and what they often
40:38
do is they've simply dropped the more serious charges.
40:42
And so now they're going to proceed with misdemeanor charges
40:46
which do not require a grand jury indictment.
40:48
In our system, that can be done basically on on a sworn
40:50
statement by the prosecutor. And in all likelihood, the the
40:55
defendant will be induced to plead guilty to the misdemeanor
40:59
charge with the knowledge or under the shadow of a possible,
41:04
you know, new effort to, to, to bring the felony charges that
41:07
that's, that's still something a Department of Justice can do.
41:09
So, right, that's probably how that case is going to end, I
41:11
would guess with a guilty plea to a misdemeanor charge.
41:13
So Clark, put on your all seeing all knowing hat look into the
41:19
crystal ball. Where are we likely to go from
41:22
here? What What's likely to happen at
41:26
the Department of Justice level on down, not only in this
41:30
administration, but in whichever 1 follows it?
41:33
I don't know, man. I mean, trying to figure out
41:36
what's going to happen next when Donald Trump is in charge is
41:38
like asking what a Coke addled spider monkey's likely to do in
41:41
a cafeteria. I just couldn't tell you.
41:44
Just couldn't tell you. It is awfully hard to look.
41:46
I can't even keep up with the news cycle.
41:49
Things come flying at us so fast and so often, and I think that's
41:53
by design. I, I think that's a tactic.
41:56
I, I don't think it's just one of those things, right?
42:00
I I think it people sat down, thought it out and said this is
42:04
what will provide a situation in which we are most likely to get
42:08
our way most often. Steve Bannon, you know, famously
42:12
one of Donald Trump's, you know, strategists.
42:15
They have an on again off again relationship, but he's famous
42:17
for saying that a great strategy is to flood the zone with SH IT
42:23
right. That's so we're not guessing.
42:24
This is absolutely part of their playbook.
42:27
So I'll I'll throw out a couple things there.
42:29
A grand jury has been convened in Florida to consider evidence
42:35
and and potentially indict Democratic operatives who were
42:39
involved in some way with the decision to prosecute Donald
42:43
Trump over his retention of of various documents after he left
42:49
office, the so-called Florida documents case.
42:54
I would not be at all surprised if that grand jury indicts both
42:59
because there was some genuinely bad conduct on the part of some
43:03
of those Democratic operatives, but also because it's it's
43:06
Florida. And I think the grand jury is
43:11
actually maybe in West Palm Beach where Mar a Lago is
43:14
located. So they've made that the locus
43:16
of this particular investigation.
43:18
So I would be very nervous if I were, what's his name, Brandon,
43:23
the CI, the former CIA director. I think he's a target.
43:27
I'd be nervous if I was James Comedy, Not sure I'd be nervous
43:31
if I was Nancy Pelosi. But I'd probably make sure that
43:33
my very expensive white collar defense insurance was paid up.
43:41
Because if you know, look, when the president calls you out by
43:45
name and tells his attorney general that he wants your head
43:49
on a platter, you've got problems.
43:52
No matter what you did or didn't do, you've got problems.
43:56
Yeah. And the saddest thing in the
43:58
world is when I asked you early on whether that might be a touch
44:02
prejudicial to any jurors who might be listening, you just you
44:06
just waved that off the way my wife waves off my request for
44:10
dessert. Well, look, maybe I should let
44:13
me walk that back half a step. 2 things are true.
44:16
First, sometimes people have enough of a spine.
44:22
I think people who are well known and politically connected
44:26
are more likely to be able to resist efforts to get them to
44:29
plead guilty. So they're more likely to go to
44:32
trial. And trials are are are very
44:36
unpredictable. And all it takes, of course, is
44:38
just one juror who's unwilling to convict because our system
44:42
requires A unanimous verdict. So, you know, if some of these
44:45
cases were to go to trial, I think there's a very decent
44:47
prospect of of either a hung jury or an outright acquittal
44:53
kind of regardless of what the evidence shows.
44:55
And I think the Department of Justice is going to understand
44:57
that perfectly well. And so those prosecutors are
44:59
going to exert a lot of pressure, which they're very
45:02
good at doing. The other thing I wanted to
45:05
point out is that one of my favorite thing points to make is
45:08
that there you can literally have a Dewey Decimal number for
45:13
a particular kind of book. And it's a book that is a memoir
45:18
by a wealthy, well off white person who thought everything
45:22
was fine in our criminal justice system until they became a
45:26
defendant. And boy, do they have a story to
45:29
tell you about how messed up it is.
45:31
And I'm like, Yup, I know that story and you should have too.
45:36
You shouldn't have to get dragged into the system as a
45:38
defendant to know how utterly messed up that the system has
45:42
become An unfair but but unfortunately, as I can't
45:48
remember, maybe one of you will be able to supply the names.
45:50
I'm sure it was probably Ben Franklin among others.
45:53
Said experience keeps a hard school, but fools will learn and
45:59
no other. Before we go, I, I want to, I
46:04
want to bring you back to a final question.
46:06
We've been talking about the, the practicalities, but at the
46:12
bottom, when you're done with all of the, the questions about
46:15
charge stacking and, and, and plea deals and the grand juries
46:20
and all of that at the base, what we've got here is a
46:23
fundamental problem of a, an absence of human dignity that we
46:29
were, we were founded in large part on the premise that it
46:34
didn't matter who your father was, it didn't matter how much
46:38
money you had that you when you came up in front of the
46:41
government, you had the same rights regardless of your
46:45
status. And now that is completely out
46:48
the window in in the environment you have described.
46:52
If you've got one guy that's sitting on multi millions and
46:55
another guy who's homeless or poor, you know exactly that
47:00
you're going to get 2 completely different outcomes even if
47:03
everything else is the same. So my question for you is, what
47:08
practically what do we do? Is there anything we can do?
47:12
I think so. I mean, I so look, I mean, we're
47:14
not writing on on a blank slate here and we're not having to try
47:17
to come up with a solution out of thin air.
47:19
The the founders of this country understood something that was
47:22
profound and true. And that is that if you want to
47:28
protect people from a potentially tyrannical
47:30
government, set up a system in which the government can't harm
47:36
people without going through a jury of that person's neighbors
47:41
and fellow community members. Whether it's a civil case or a
47:44
criminal case, put ordinary people, 12 people on a jury
47:50
between a government that wants to to do something bad to a
47:53
person and the ability to do it. And that's exactly the system
47:57
they designed. By the way, that is how our
47:59
system is designed, and that's how our system is supposed to
48:01
work. The government should not be
48:03
able to hurt you in any significant way without
48:05
convincing 12 people unanimously and in criminal cases beyond a
48:11
reasonable doubt that you did the thing and you deserve
48:14
whatever it is they propose to do to you.
48:17
And perhaps the most profoundly horrifying and, and condemnable
48:25
change to our system that that, and I'm going to lay this at the
48:28
feet of the judiciary, including particularly the Supreme Court,
48:32
is the repudiation of that clear constitutional commitment that
48:37
the government can't hurt somebody without going through
48:40
12 of their friends and neighbors first.
48:42
That's the system we were bequeathed by the founders in
48:45
the text of the Constitution. It is not the system we have
48:48
today. And that is absolutely the fault
48:50
of judges who didn't understand the importance of, of, of juries
48:56
and, and why the framers and the founders of this country
48:58
venerated both civil and criminal juries.
49:00
And they are practically extinct on American soil now.
49:03
And in my opinion, that's why we have so many of the problems
49:06
that we have, because the government can act unilaterally
49:09
against just about anybody it wants to.
49:11
And that is not the system we were supposed to have.
49:13
I'll add one more thing to that clerk.
49:15
I'll lay the some of the blame at least at the feet of my
49:20
fellow citizens who say routinely, I don't want your, I
49:25
don't want jury duty. How can I get out of it?
49:27
It's. A tragedy, isn't it?
49:29
Well, you shouldn't try to get out of it.
49:30
You you shouldn't try to get out of it.
49:32
You should be maybe not happy, but willing.
49:36
Should it's a civic duty, it's more important than voting.
49:39
And I'll say one other thing. When they do polls of people who
49:43
have, who have had jury service, they go in wishing they didn't
49:47
have to do it. And they come out being so glad
49:49
they did because it reconnects people, makes them feel like
49:53
citizens again and refreshes their connection to this country
49:56
and, and, and helps them understand that ultimately we
49:59
the, the people, individuals are the source of all political
50:02
power in this country. And nothing reminds people of
50:04
that like sitting in judgement of another human being with 11
50:07
other people. And I'm, I'm with both of you,
50:10
but in defense of the people who try to get out of jury duty, the
50:14
fact is we, we pay them a pittance.
50:17
What is it may be enough for lunch.
50:20
And you know, if again, if you're independently wealthy,
50:22
that's fine. But most people, they've got
50:24
jobs, they may even stand the chance of losing it.
50:27
They've got to feed kids or whatever.
50:30
Everybody else in the courtroom is being paid whatever they get
50:35
paid so they can actually live. Do the same thing with the
50:38
jurors. Absolutely, 100%.
50:40
And you know, at the founding era, jury trials usually took
50:43
about 20 minutes or half an hour.
50:44
They didn't have all the procedure we have now.
50:46
Almost nobody had lawyers. And so it wasn't that big of a
50:49
commitment. Now, you could easily end up on
50:51
a jury. You could be there for months.
50:52
And and you're right that, that that can be a real threat to
50:55
somebody's, you know, a, a job, their, their ability to put food
50:59
on their family's table. Nobody should take an economic
51:02
hit by serving on a jury, at least an economic hit that that
51:06
imperils their ability to continue putting a a roof over
51:09
their family's head and food on the table.
51:10
I agree with you 100%. In Clark, do we gain anything
51:13
by, for example, removing the ability to plead guilty?
51:19
That is, even if you believe that you're guilty, you we still
51:23
have to go through the jury trial for the government to take
51:25
action against. You I think so I think that
51:27
would be a good idea. I don't know that we need a full
51:29
blown trial. There's nothing to prevent a
51:31
defendant from standing up in front of a jury and saying I did
51:33
it. Here's what here's the the
51:35
weapon I used or, you know, here's what I put up my nose or
51:38
whatever it might be. But I, I think a system in which
51:43
we eliminated guilty pleas. So every case you got to convene
51:47
a jury and if the defendant wants to be the first witness
51:49
and stand up and say, Yep, I did it, I want what's coming to me,
51:52
let's get this done. Great.
51:54
OK, well, that trial just took about 10 minutes right Now, We
51:58
might also say that depending on the seriousness of the charges
52:01
and our assessment of that defendant's demeanor, we might
52:04
require some corroboration. My understanding is that courts
52:07
in Germany typically do not accept a guilty plea from the
52:09
defendant without substantial corroboration.
52:12
I think that makes a lot of sense.
52:14
So I, I, I don't think we need to eliminate, you know, guilty
52:18
pleas from the system entirely. But I do think that there is
52:22
value in ensuring that every criminal prosecution sees, you
52:27
know, the, the, the, receives the, the, the sunlight of, of,
52:30
of a public proceeding, even if it's an abbreviated one where
52:34
the defendant just gets up and says I did it.
52:36
But I, I I would I would prefer a system in which we at least
52:39
require that much. Clark, this has been great.
52:41
As always. I, I, I come away from every
52:44
conversation with you being smarter than when I arrived.
52:47
No, you don't. You.
52:49
Know I, I it's always such a downer.
52:51
So can I just say something optimistic and happy?
52:53
And that is we were, we, we have the, the benefit of the most, I
53:01
think really the most enlightened and ingenious
53:06
blueprint for government that has ever been written by human
53:09
beings. And it stands today.
53:12
It, you can go there, you can read it.
53:14
You could go to the National Archives and read like one of
53:16
the original ones if you want to.
53:18
So we know where we have to get back to.
53:19
We have a fixed star that we can find our way back to.
53:24
What we've done is we have repudiated and disavowed that
53:29
inheritance, but it's still there.
53:32
It's still waiting for us, and we can still get it back if we
53:34
just decide we'd rather live under a truly constitutional
53:36
government instead of the one we have.
53:38
Now. Amen.
53:39
Amen. Clark, Thanks for coming and
53:41
thanks for the relatively happy ending.
53:43
It's always a pleasure. Words and Numbers is a Civil
53:46
original podcast. We work with Civil to advance
53:49
their mission of upgrading civilization by exploring ideas
53:53
that promote civic equality and cooperation.
53:56
We believe the most pressing issues humans face, war,
53:59
poverty, debt, tribalism, arise from coercive institutions that
54:04
bring out the worst in us. We at Civil look to voluntary
54:08
solutions to these and other problems.
54:10
We invite you to explore Civil's new platform at civil.com
54:15
thatscivl.com.