B (30:16)

Thank you for having me.

A (30:18)

Okay, let's jump right in. Given current headlines in the United States, would you say that politics, in some sense is part of the legal system, plays a key role in the legal system. And the reason I ask is that at least in high school and so forth, we were always told that the law stands somehow above the political fray as some neutral arbiter of our differences. And I wanted to get your reaction. As a practicing attorney, I would say.

B (30:52)

That politics does affect the criminal justice system probably in three ways. I mean, the one way that I think is in the news now is pure politically motivated investigations and prosecutions, which people are talking about because of the release of this memo, which does seem to show, you know, that highly politicized opposition research found its way into a criminal investigation of Trump and his associates during the election. I think that's the most rare, I think more common, you do see the federal government use its power to protect the interest of corporations. We see that with, I mean, you could look at what's going on in with the pipeline protesters and the federal government and the FBI getting involved in infiltrating some of those protest groups and aggressively prosecuting. There was a case a while back, some of your listeners may remember Aaron Swartz, who was really an activist for free Internet, and he downloaded some copyrighted materials not for personal profit, but to release them to the public. And he was aggressively prosecuted, threatened with decades in prison, and he took his own life. Tragically, there are those cases, I would actually say that you see the use of the federal government to aid corporate interest more starkly with the Department of Defense and what goes on with our military, where policies that just seem to not be serving the interests of the public, but do serve the interest of the weapons manufacturers, do serve the interests of oil and other mineral extraction industries throughout the Middle east and Africa. So I think probably the most common way that politics plays into the criminal justice system is in who doesn't get prosecuted. So, for example, we had a systematic fraud in the mortgage markets that caused countless people to lose their homes. People were swindled out of their homes. People, probably more of them, people of color, lost their homes and a majority of their wealth in this. And the federal government. If you look at, for example, press releases that come out of my neck of the woods in Chicago, they'll talk about how the Department of Justice is pursuing an aggressive, coordinated and proactive effort to bring to justice the perpetrators of mortgage fraud schemes. But as Eric Holder candidly admitted in 2013, they don't prosecute bankers. He basically said that these institutions have become too large, it's too difficult to prosecute them, whatever the excuse is too big to jail, they say. But who does go to jail? And it's generally the politically powerless. I've represented many, many people charged with mortgage fraud. All of them are very low level people. People that were encouraged by the banks and loan officers during the go go 2000s to take out these loans that everyone knew they couldn't pay back. And they were told, don't worry, you're going to be able to refinance and you could buy these properties and you could be Donald Trump and be in real estate. And a lot of these people went to real estate courses to learn how to do this. And they were encouraged to inflate their income. In fact, the bank set up these programs. They were nicknamed liar's loans. They were technically called stated income loans, where you say your income and we will not check. So that's what these people did. And they bought several properties and they thought, they fixed them up and they tried to be real estate. And the market crashed and now these people are going to prison. They're aggressively prosecuted by the Department of Justice. And when they get out of prison, the federal government comes after them to pay restitution to Wells Fargo bank or to bank of America or Citibank or whoever held the loan and lost money. So it's quite.

A (34:48)

Whereas the people at the top who designed this whole system and ran it, walk away, walk away. Is this different now? Would you say, you know, as a teacher in a law school, you're familiar with the history, in a way, of the legal system in the United States. Is it worse? Is it better? Is it the same? Is this the same old, same old? How can give us a sense of the politicization or the unfairness in a way of the justice system?

B (35:20)

Historically, somehow, what I would say is that we've seen this is not new. I mean, certainly we've seen throughout history. You remember how Martin Luther King was aggressively investigated, especially when he started becoming more of a threat to the corporate state and the war in Vietnam and.

A (35:44)

Income inequality, marching with those public works employees in Memphis and so forth.

B (35:51)

You remember the COINTEL program of the FBI where they went after people that were considered a threat, the Black Panthers, American Indian movements. So certainly we've seen this throughout history. I mean, even you'll remember Karl Rove was famous for advocating the firing of US Attorneys that did not help Republicans win election. That was a big scandal back then. But I would say the difference today is that the corporate state has really captured both of our two political parties in a way that I think we haven't seen in recent history. And because, you know, you can even go back to the late 80s under George H.W. bush. In the early 90s, he prosecuted, and that Department of Justice prosecuted thousands of bankers in the savings and loan scandal, which was really a much less egregious scandal than what we've seen today with the mortgage fraud zero today. And back then, thousands of bankers had actually went to prison, have felonies. So I think things are moving in a troubling direction, I would say.

A (37:05)

How would you describe it this direction? I mean, tell us what you think is unfolding here.

B (37:13)

You know, I'm not a political scientist, but you know, you can look back at the Clint, certainly one thing, you can look back at the Clinton years when basically a decision was made that the Democratic Party was going to grab the money from Wall street just like the Republicans grab the money from defense contractors in arms industry, health insurance companies. And you can also look at what's happened to the unions in this country and sort of the undermining of the unions. I mean, it used to be that working people had a real voice in our duopoly political system. And today I think it's less so. So I think that feeds the income inequality and the sort of, of slanting of the playing field in favor of the people who basically the big donors to our political leaders.

A (38:03)

I noticed recently I had some occasion to do some research on the statistics of who big donors give money to. And while there are some that are clearly in the Democratic camp and some that are in Republican, the majority of those that I saw give to both. It's really like they're covering their bets. They're making sure that it really doesn't matter which of the two get in because they'll both be beholden to major funders. And they've understood that. And it's smart to do that. And you can see that if you think of working people as having a voice through their unions and through a political party that responds to them, if they're less able to get the Democratic Party to respond to them and their unions are weaker, they've lost position on both areas where they might have had and in the past did have some sway. Let me ask pointedly, do you think the Trump administration is doing more than has been done? Is this part of a long, slow trend, or is there something dramatically happening under Trump that makes you even more worried than you might have been before?

B (39:18)

You know, I think it's too early to tell. Certainly he's appointing a lot of judges, but, you know, the Democrats have not, you know, basically anyone. First of all, if you look at who is on the Judiciary committees and look at who they're getting their money from, both sides of the aisle are getting money from big business Wall Street. So any candidate for a federal judge that's going to get through that vetting process is going to be somebody that is acceptable to the corporate state. So, yeah, he is appointing some very right wing federalist judges, which are very troubling. I think it's too early to tell exactly what is going to be the effect of the Trump administration in terms of Department of Justice and whether they're going to be used more politically than in the past. So it's hard to say. I mean, I think the one good thing about today is that people that Trump is maybe because he's such a buffoon, that people are actually paying attention to what he's doing. And I think that's a good thing. I feel like a lot of people sort of went to sleep during the Obama years and he was expanding the war on terror all through Africa and.

A (40:34)

The drone war and expulsion of immigrants.

B (40:40)

So I think it's good that people are paying attention now. I mean, even this Nunez memo that came out, I mean, at least it's a Little sunshine into the process. Because, you know, you listen to, for example, people like Adam Schiff, who was the intelligence, the ranking member of the Democratic Intelligence Committee, saying, this is, you know, we cannot release this memo. It's going to, you know, causes huge national security concerns and sources and methods and all this stuff. And then people look in and they're like, really? This is going to, you know, so I think the more sunshine we can get, you know, Leonard Cohen has a famous line, there's a crack in everything. That's how the light gets in. So, you know, maybe this is a crack, maybe the Trump administration is a crack that people are going to start paying attention to what their federal government is up to. You know, and I, you know, you look at people, I think people are a lot more knowledgeable about what goes on in the state House and their local governments, which is appropriate, you know, because. And have very little scrutiny of the federal government. I mean, most of our Federal representatives are 1,000 miles away in Washington, D.C. at least from us in Chicago. And they rarely come home except to find there's very little contact with them. We don't really know what they're doing. You know, at least with the state governments, they have some constraints because they have budgetary constraints. The states have. The state and local governments have to balance their budgets, right?

A (42:09)

They can't just borrow.

B (42:09)

And the federal government just writes checks that we all have to. Are obligated to pay someday in the future. And, you know, also the state and local government actually have to pay, provide services. They provide. You know, they are still schools, public schools, and there's police force and garbage pickup. So, you know, I feel like people ought to pay more attention to what goes on in Washington, D.C. let me.

A (42:31)

Ask you a question that I know is as old as Methuselah in the history of the labor movement. It has always been understood that the government, unless you are very lucky and in an exceptional circumstance, finances, is going to be doing what big business and what the power and what the wealth wants it to do. So that when you confront, for example, an employer in a negotiation over a strike or a contract, you're always thinking that behind that employer or if the employer needs it, there's the government and the judicial apparatus. Is it fair, from your experience, Ana, is it fair to think of the judicial apparatus as reinforcing this particular economic system, the distribution of wealth and income in our society or capitalism, in short, that we have a legal system that deserves the adjective capitalist as opposed to some other adjective? Or isn't the neutral thing that I remember being taught in high school, it was somehow a of bunch of this.

B (43:38)

Yeah, I mean, I think that's an interesting example with labor because the system does work, the collective bargaining system does work when you have somewhat equal power on both sides. But if all the power is on one side, it's hard to negotiate. So when you had strong unions, they could go in and negotiate. We got weekends and we got 40 hour weeks in child labor laws and things. But I think things have shifted in such a way and it's almost like a runaway train where the more inequality we have, the more our federal government is funded. It's basically a federal government that represents the interests of capital and not people. You can call it a democracy, but it's a very troubling time. And I think part of the problem also is secrecy because we have, basically what the federal government does is they have the ability to control what information gets out. Guantanamo, my representation of Guantanamo is a great example because basically they rounded these people up, sent them to Guantanamo Bay and then made speeches that these are the worst of the worst, these are dangerous terrorists. And people have no way of judging that because all of the information about their territory cases was classified. So in order to represent someone, I had to get a security clearance, I had to fly to a secure facility and look at the evidence. And no reporter could ever. All my hearings in the case were closed so no press could write about my client. One time I wrote an article about my client, I had my security clearance taken away from me and I had to fight to get it back. So, you know, I think that secrecy is something that people need to pay attention to because it's basically, we can have a drone strike where missile is fired at a wedding party, women and children are killed and we have no way of judging this. We have no information. The government locks down the information. The families of the victims can't go into court and demand because they just say national security secrecy. So it's very, you know, you can't, it's not a healthy democracy if you can't get a window into what your government is doing, you know.

A (45:53)

Leonard Cohen cracks Lead in the Light Leonard Cohen has a song, my favorite song, whose title is Everybody Knows. And you put those two together and it's just what you say. Everybody knows that we're not allowed to know and there sits the danger of society spinning out of control. I also love your image of that train because for me as an economist, what I see is an ever smaller part of the population Accumulating an ever larger amount of money in a society that is at least nominally democratic, where everybody has the vote. And these wealthy people, a tiny group, are very clear and they're right, that's dangerous for them that sooner or later the mass of people are going to use what they have, the vote to undo the inequality of the economy. So they have to control the politics, otherwise they're not secure. So they buy the political system to prevent it from doing what it was there to do. But then you have, the end result is a society that's on a runaway train of self accumulation. The, you know, I was asked very recently on a television program to comment on that tax cut was the same thing for me, the one in December, because here you are, the rich are already richer than ever. They have become more rich relative to Everybody else for 30 years. And you pass a tax cut that gives all the benefits to those who need it least. There's something wrong in that picture. And I have this sense that in the law you're telling us something very parallel is underway. Is that a fair sense of what.

B (47:39)

You know, find or disagree?

A (47:43)

You know.

B (47:43)

No, I do agree because I think when you're talking about an imbalanced society, you need law enforcement and people basically need law enforcement to keep order. Because like what you're describing as a society where you have the 90% have really no representation because the only candidates we get to vote for are corporate approved candidates for either party. For either party. And so what is, you know, so you're going to see unrest and you're going to need the federal criminal justice system to really protect the interests of that 1%. And it is a scary situation.

A (48:20)

You told me some examples you gave me when we were preparing for this and I wanted to draw you out a little bit bit about them. Tell me what you think is going on in the law around campaign donations, which is a topic of enormous interest to our audience because it gets right at this. What's that about? What upsets you? If I can say it that way.

B (48:43)

In that area, what we see, and in full disclosure, I represent Rod Blagojevich, who is in prison for political corruption. They say, but if you look at the system, the candidates that really play the game, right, that is, they get their funding from Wall street, from the defense industries, they do their bidding. Those people are left alone.

A (49:07)

Generally, they kind of move up the ladder.

B (49:10)

The political ladder, yeah, it's certainly a corrupt arrangement. I mean, if you're sitting on the banking committee over seeing banks and you're taking, you know, you're being funded by Wells Fargo and Citibank. You know how that's, it's insane really. I mean, or if you're sitting on the defense appropriation committee and you're taking money from Raytheon and General Dynamics and Northrop Grumman, you know, and then you are voting, you know, using your power to make sure that we're sending weapons all over the world and giving these.

A (49:44)

Companies huge contracts and all that.

B (49:47)

So yeah, it is an out of balance system. I'm sorry, I lost track of your question.

A (49:58)

No, it's a very good phrase because it's very nice and polite. The real question is political corruption. Yes. And the campaign don't. This money changing hands. Like you, I feel as though 30 years from now people will look or 50 years from now look back at this and find it incredible that we could allow this almost to the level of pretending it isn't happening when it is as stark as your example just gave.

B (50:26)

So you know, what I would say though is that generally what happens, it's similar to the Morgens fraud cases is that because they don't go after the people that are actually in the pockets of the, you know, the accepted donors of both parties. They go after because they have to make. The federal government has to at least create the illusion that they are interested in political corruption. So in Chicago, generally they go after aldermen, mostly people of color who, you know, stings are set up so that they'll take $1,000 or $2,000 an envelope and you know, approve some bill and those people go to prison and are aggressively prosecuted. So, so it's really, you know, the problem is when the game is rigged and the people at the top are untouchable, somebody has to get prosecuted. We have this huge apparatus, Department of Justice, I mean, just in Chicago, I think there are 70 full time federal prosecutors. They're all very smart. They went to Harvard and Stanford and Yale and they're excellent prosecutors. And so they have to have someone to prosecute. They can't prosecute the actual perpetrators of mortgage fraud. You know, they go after street crime and low level people.

A (51:35)

It's really, I mean we used to call those fall guys, people who have to take the fall so that the illusion, since we all know it's corrupt, we need the kind of the closure that somebody is paying for it. Even if it's the person who in that guarantees you that when he or she goes to jail, nothing in the basic corruption has been stopped or changed.

B (52:00)

A former FBI Agent that I know calls it picking on cripples. He says that's basically what the federal government does. Most people that are prosecuted in the federal system can't afford a lawyer. So if you can imagine that, I mean the resources, unlimited resources that the federal government are being used to go after, after people who are too poor to hire their own lawyer.

A (52:23)

Is there something. I know this is a difficult question. If you could do anything, what would you do? Or are we so far down the road you define how to control train that we can't?

B (52:36)

I'm glad you asked it because as we were talking earlier, some of your guests are so optimistic and I hate to come out and be gloomy bit, but I mean, we have to figure out a way to get money out of politics. I mean, there's ways that first of all, you can have publicly funded elections, you can pass ethics laws. It is possible to say that if you are personally benefiting from policies of the government, you can't contribute, you can't support this politician. I mean, it makes sense. States do it. So the federal government could do it as well. European systems, they have their problems, but you know, they have a real social, robust social safety net where there's actually some sort of feeling that, you know, we take care of each other. And you know, I think you can look at the policies that come out of European and they're less reliant on the federal criminal justice system to police. So you have much saner policies on the war on drugs and you know, treat people that are addicts as, as people with medical conditions that need help rather than need to be incarcerated. So I think there are models out there and there is hope.

A (53:46)

I think it's also, there's a kind of a hope in the very danger, but the danger has to be spoken. If you run your judicial system as lopsidedly favoring the power and the wealth, you are breeding in the mass of the people. An understandable disrespect and distrust of that judicial system. And my guess is that comes back to haunt societies. I think history is full of these examples where dictatorial, unfair, unjust governments have found themselves eventually brushed aside by a population that no longer believes a word these people say, for all the reasons you've in a sense outlined. So I mean, in a way, if they didn't trust the government, there's hope that they will then find a better way, as people in the past have. But meanwhile we sit in a society strikes me that suffers the stories you say. So I understand that you admire the optimists who have been on the program, but it's important to balance it with some level headed sense of where it is. Anything you would say in closing, since we're running out of time, about our legal system, since you're so deeply ingrained in it?

B (55:01)

No, I just, you know, I think people should pay attention. People should serve on juries, serve on grand juries, ask questions, you know, and people come in. Don't always accept the government's word. They're not always telling you the truth. I think people, and you know, if I'm picking a jury, obviously I like people from more urban settings that have different experiences with the police than maybe you or I have had. And so I think we need to be skeptical and don't always accept things at face value that are told to you by the government.

A (55:32)

Very good. Thank you very much. Leonard Goodman.

B (55:35)

Thank you, Rick. Professor, it was a pleasure.

A (55:39)

Thank you all for paying attention as well. I think there's much to chew on and learn. I want to thank you for partnering with us by watching and talking and listening. And I want to thank truthout.org that extraordinary independent source of news and analysis that's been our partner for a long time. Thanks again. And I look forward to speaking with you again next week.