← Public Defenseless
Public Defenseless
489 | Why did a 35 Year Career Prosecutor Walk Away from the DOJ Under the Second Trump Administration? w/John Haried
01:04:12
Loading summary
Transcript61 lines
- [00:00]
A
Foreign. Welcome back to Public Defenseless with Hunter Parnell as we explore the rot in the criminal justice system and what we can do about it. Hey there, everybody. Welcome back to another fantastic episode. Today. We have a very unique guest, one that has never been on the show before. Joining us today is John Herod. John is the former director of Electronic litigation with the Department of Justice. He spent his legal career as a line prosecutor, first in the state of Colorado and then a line prosecutor with the Department of Justice, focusing primarily on white collar crimes before he transitioned to his role as the director of electronic litigation with the department. And I wanted to have him on the show because he is one of the many longtime career DOJ attorneys who left the DOJ after the second Trump administration started doing what it has been doing over the totality of its administration. Then why did I want to talk to John? Well, I think if you are paying attention at all to what is happening at the federal level with the Department of Justice, we are seeing a level of incompetence, of corruption, of malfeasance, of, of targeted political prosecution that we have not seen in our lifetimes. There have always been issues with the Department of Justice and there have been individual bad actors, but the scale and the scope of the problems at the Department of Justice are pretty large. And the reason why I wanted John on the show is because one, he's seen inside this system. He understands how it works. And I, as you will see, I think he is sympathetic to some of the practices and policies that had been in place throughout his career. But the question that I pose consistently to John throughout this episode that I want y' all to be grappling with is we see in front of us how many tools and levers were left around for people like this administration to pull and to work with to use the DOJ as a political weapon. And the question that I ask is from this moment in time, what are the lessons we should be learning so that when we again have the reins of power, we can ensure that these tools, these levers, they are not left lying around for these bad actors to use in the future in these opportunities where we see just how frail our system is? The question is, what can be done to ensure that actors like this can't act like this again? That is the question that I want you pondering throughout today's episode as we talk about discovery, grand juries and a whole slate of other topics. As always, folks, if you're liking the show, like subscribe. 5 star rating 5 star review Feel free to Reach out to me on Twitter, Instagram via email, or on Blue Sky. If you are liking what you're hearing and you would like to contribute to the ongoing cost of production for the Public Defenseless Podcast, you can go down below to PayPal, Patreon or Stripe, where you can contribute for as little as $5 a month or as much as you feel you can afford to give. As a reminder folks, I take no sponsorship money. I do no advertising reads. This show is funded predominantly from the generous contributions of listeners like yourself and out of my own pocket. So if you are liking what you're hearing and you would like to contribute in some way for the show's continued production, you would like to throw me some money while I'm studying for the bar could do so by going down below and subscribing on Patreon today. If you do so, you will gain access to the video versions of the show and you will get the episodes a day early. Which means you will get to see my adorable miniature Dotson puppy, Beans, who has once again been scooped up from his mid introduction nap folks, marathon recording of introductions to try and get everything out and produce before bar prep time. So Beans, he's putting in overtime folks, and unfortunately in order to compensate him thoroughly for the overtime that he is working, I need people to go and subscribe below on Patreon today. And now, without anything more from me, let's get to the episode. John, welcome to the Public Defenseless Podcast. How are you doing today?
- [04:26]
B
I'm doing well.
- [04:26]
A
Good, good. Excited to talk with you. You know folks, I said it in the introduction, but it is, I believe you are the first non civil rights DOJ attorney to be on the show and I'm very excited to pick your brain, especially with the current DOJ we have. But a lot of this story has to do with your own personal career. The things you have done, you did working for the DOJ while you left the doj. So that's where we're going to start. If you could just introduce yourself, tell us a little bit about your career. We're going to talk about various things in your career throughout this episode, but just introduce us a little bit who you are, why did you want to join the DOJ and tell us a little bit about your journey through the DOJ to your time where you left.
- [05:05]
B
I joined in 1990. I started as a lawyer in 1980. I was a state prosecutor in the Colorado system here in Boulder and then in 1990 I joined the Department of Justice. I joined because I Found I really liked working with people and their cases. And I mean, not just the lawyers and the judges and probation officers, but also with the defendants. As a prosecutor, you get a lot of opportunity to interact with defendants and hopefully make their life better. You know, some people just need a helping hand in some way. Some people end up in prison. It's different for different people. But I really like working with all the different kinds of people involved in the system. So I decided to stay being a prosecutor rather than going into private practice practice. I started out in federal court at the U.S. attorney's office in 1990, just being a regular trial lawyer doing a variety of cases. I wanted to do a lot of white collar, so I did environmental crimes, security fraud, money laundering, all kinds of regulated conduct. Most of my defendants were business people, not individuals. So I did not do drugs, I did not do guns, I did not do violent crime, stuff like that. And I did that because it was interesting and because it was especially hard. Those are really difficult cases. If you have a case where somebody is illegally in possession of a gun or put a knife in someone's ribs, everybody in the jury understands that's a crime. White collar cases are very different. If you have somebody that's out there selling product into the marketplace every day and there's something illegal about the way they're doing it, people are not sure if that was a business or if that was a crime. So white collar crimes are very, very difficult to prove. And it was a big challenge. And there's a lot of need for tough white collar enforcement. Very hard to have a first world economy if you don't have strong law enforcement, keeping everybody in the, you know, who's on the selling side, everybody on the buying side, following the rules and competing equally. So white collar law enforcement is really important to the country as a whole. I eventually, after trying cases for 20 years, took a job in Washington working on how federal prosecutors manage all the discovery that they give to criminal defendants. So discovery is simply the investigative reports, the lab reports, the handwriting analysis, blood analysis, everything. Gun residue testing. All of that information is discovery and how we turn that over to make it readily accessible to defense attorneys and their clients, make it complete, make it work effectively and efficiently so cases can get from the start line to the finish line in a reasonable amount of time. That was my job. And that job evolved into how do we manage all of the electronic information that prosecutors gather? And it's the largest collection of electronic information in the world in any single system. There are about 12,000 lawyers for the department, roughly 35,000 federal investigative agents and about 12,000 people supporting that whole enterprise as technicians, as paralegals, as legal assistants, so forth. So it's a large enterprise in the federal system, when I was there, handled about 65 or 70,000 new criminal cases each year. That means cases would come in, say in 2025. They might take one, two, three years to work their way through the system. So the inventory of cases would be several times 70,000. But roughly 70,000 active cases are new each year. And on the civil side, roughly 100 to 120,000 new civil matters each year. And I just lay that out. So you have a sense of how large this enterprise is. It's by a lot, the largest legal enterprise in the world.
- [09:40]
A
Okay, so we get to that point. We're going to talk about why you leave the department here in a moment, but I do want to get just a couple things clear so you stop being. You were a in court trial Prosecutor during Bush 1, Clinton administration, Bush 2, and the first Obama administration. That correct? Am I getting that timeline right? Okay. And then you transition to a director role focused more on this discovery issue from the first Obama administration here until the second Trump administration. Is that, is that correct?
- [10:12]
B
That is.
- [10:13]
A
Okay. Okay. So one of the first questions I have for you is about the difference that you saw between state and federal prosecution. Because, you know, I am down here, I work at the municipal court level, and I have to say that sometimes I find that the quality of the city attorneys that I'm going up against ain't that great. And I hear from my state counterparts that at the state level, we still have bad state prosecutors, but the quality improves. And then I hear from my federal counterparts that the biggest difference is that the average DOJ prosecuting a term is pretty high quality. You're not running into too many bad quality wise, put aside ethics for a second, but just the, the quality of the prosecutor is much, much better. The quality of law enforcement. Yeah, quality of law enforcement. Was that the biggest difference or are there other big differences from state to federal that also caused you to maybe make that jump?
- [11:06]
B
There are other big differences, but I think all those things are true. The nature of the offenses, the nature of the conduct you're dealing with is very different at those different levels. And so I'll give you an example. In a state court, very typically a defendant would be an individual acting more or less alone, sometimes because they were intoxicated, sometimes because they were struggling with mental health or other, you know, issues like that. Definitely Lack of economic resources, poverty is a factor. And so what those people are struggling with and what they need to get their life on track is very different. If you go to federal court, you're dealing much more with people who make a profession out of crime. And what's appropriate for them is very different. They much less in the way of a helping hand up, either through probation or mental, mental health support, alcohol counseling, all those kinds of things that were focused on individual conduct. And the people who are defendants in federal court are very different. A lot of them are doing crime as a business.
- [12:27]
A
Okay, okay. So that makes sense to me. If that's the differences that you see there, I know that we would probably break out. Your experience being a white collar prosecutor, you experience very different kind of defendants than the one that I represent here in municipal court, which are, as you said, largely people who are being prosecuted for crimes of poverty. Obviously, people who are committing white collar offenses might not fall into that category. So now I want to talk about the discovery issue, because this is an area where I think there is the biggest difference in the negative from state systems to federal systems. There are some states that have, until very recently, I think like a state like Virginia has had a discovery process that more looks like the federal system. But then there are states like the one that we're in, Colorado, where Rule 16 provides. It's not perfect, it has a lot of issues. And there are questions we can ask about how discovery works, but it is far more burdensome on the prosecution than, say, what is required at the federal level. First is like a baseline. How do you, how would you describe the way that discovery works at the federal level, especially as a prosecutor, how you viewed your obligations, how you thought about your obligations and what you felt the law required of you and what you felt you just should do, because that's what is right in this case?
- [13:45]
B
Well, I would say, you know, before, even before Trump too, the Department of Justice put an enormous emphasis on discovery compliance. And that's because there were discovery screw ups from time to time. And so the reason I took a job in Washington was to create that whole culture around, you know, a high level of discovery compliance. And I think that generally federal prosecutors take that responsibility very seriously. There's a decent support staff that helps prosecutors manage all that information to do the reproductions, the coalition, the descriptions that go to the other side of what's being produced. There's a support structure or a whole process for that. The prosecutors themselves take it very seriously. There's a lot, a lot of training on what their ethical obligations are, because we have an active ethics regulatory council here in Colorado, as most states do. So people are concerned about a lot of things which all boil down to their reputation. What's their reputation with their judge, what's their reputation with their federal public defender's office? What's their reputation with the private defense bar? Because your reputation is really the only currency that you have to get your job done. It's hugely important. So I think people take it very seriously. Up until 2025, I think we've all seen in the headlines for the last, whatever we are, you know, 14, 16 months, that that's now highly suspect. There's a lot going on that causes us to doubt whether the prosecutors are taking their obligations as seriously as they used to. I do want to emphasize one important thing. What we see in the headlines is 5 or 10% of the cases, probably less than that. The other 90, 95% of the cases are mostly proceeding normally, meaning in compliance with the rules. They're proceeding well. You know, it's business as usual. By and large. The prosecutors, the defense counsel, everybody's continuing to do the same high quality work that they did in those 90 or 95% of the cases. But what we are reading about is that, say, 5% of very important cases, but also represent an attitudinal change to the worst. And that's important. That's very important because that infects the whole enterprise. But nobody should think that, you know, out of those 60,000 cases, all 60,000 of them are proceeding badly. They're not lawyers on both sides, prosecutors, defendants are doing their job. But those that 5% of cases, the immigration cases, the retributive retribution indictments, those are important because they set a tone.
- [16:58]
A
So. Yeah. So I want to talk a little bit about a couple of critiques I've heard from the way discovery works at the federal level, kind of based on what you're talking about. Again, I think we, as a baseline, especially prior to this, can agree probably about the competency levels from various, I think public defenders, criminal defense lawyers, prosecutors, I think, are all going to agree about this competency issue from level to level. But at every level, the two consistent issues with how discovery works in America in the criminal context come to light. One of them is the first one I want to address, which is that, you know, the timing here In Colorado, Rule 16 places certain timing requirements on when discovery is disclosed. And a lot of the federal defenders that I talk with is that one of the big issues they have with discovery. This was an issue that was in New York at the state level, in Virginia at the state level, is that when they get discovery matters. So that as I understand it, a lot of federal defenders take issue with the fact that in their districts, the, the prosecutors might disclose everything, but they do it the day before trial, right before a witness goes on stand with the understanding that they are doing this. And I'm not saying they're lying about this to protect a certain witness. Right. If we disclose the identity of this witness or some of the things they might say in, let's say a big RICO case where there is an organized crime element, that witness might be at risk of death. I think that's a valid concern. I, I'm assuming these people are not lying about it because I know that's
- [18:27]
B
real witnesses get killed every day in this country.
- [18:30]
A
I don't think that that' legitimate concern. However, I have heard from criminal defense lawyers that that exception has grown rather large to where it is now normal in some districts, not all, but normal, for discovery to be provided so late that it might as well not have been discovered in the first place, that it's now useless because we're getting it the day of trial right before a person goes to testify and we can't do the type of cross examine we do. So my question first is how do you feel about the current balance of discovery with prosecutors having this choice? Because as we're going to talk about at the end, we're starting to run into some questions about like the ethics of the new Department of Justice. So like, let's start here. The power that the prosecutors have to decide when discovery is given. How do you feel about that current balance right now with given that maybe critique that defense lawyers have lobbied?
- [19:23]
B
In my experience, judges have managed that balance well, meaning that it's very unusual for discovery to be provided late. It happens for a variety of reasons and I'm happy to talk about what those reasons are.
- [19:40]
A
Go ahead, please.
- [19:40]
B
Yeah, the reason, I mean, there can be many. It's rarely a bad attitude or a malevolent intent on the part of the prosecutor. It's more commonly something got lost. That's a process problem. Something was provided, was seized as evidence late because as you go out and prepare for trial, you start learning new things from witnesses. And so people start giving you stuff and it's coming to you late. It may be because there was a technological issue with getting information out of a cell phone or out of a computer or out of a surveillance system or whatever. There is human error that comes in you relying on, say, AT and T. And they make a mistake and they realize that late, and they provide you text messages or emails or whatever. Late. I mean, lots of normal human processes go wrong and they get corrected at the end. And that's because people are now in the month or six months before trial, focusing on getting it right. Right. They thought six months ago the case was going to settle and none of these issues were going to be important. And then they learn, now we're going to go to trial, we got to get everything right so things get solved closer to trial. But that's not that usual. And if it is a genuine problem, the law empowers defense attorneys to raise it as a genuine problem and for judges to continue trials or provide other sanctions. So in my experience, I mean, there's a lot of carping on both sides of litigation about various discovery practices, but when it's a real issue, judges solve it. And I think they're very aware of what's reasonable and what's unreasonable and they're very willing to act. And so I don't. Despite the yapping from various people, and you get yapping on the prosecutor side as well over discovery issues, by and large, the trials come off pretty well.
- [22:07]
A
Okay. So I guess part of what makes me skeptical about that approach is just my experience in the city and state courts that I've been in, where judges tend to not care that much about discovery issues, where it's viewed as something especially if you are dealing with a bench that is pro prosecution as just like a defense's way to like, obfuscate the issues. And that's why I tend to have questions about allowing one party who is a participant in this system, you know, who is a part of the adversarial system, be also the one that has so much control over the timing of discovery. To say that everything that you just said, I, I understand, is like a valid concern and a real concern. However, with all of those real concerns and all those exceptions and all of those understandings, and it does open the door for a person who would like to be a malignant actor, a bad actor, it gives them a lot of room to find a facially legitimate reason to disclose late, when in reality they're trying not to be. And that's going to be part of the discussion we have once we get to like grand juries and stuff is, you know, now that we see that even a system that has had very, has had a higher percentage of ethical, competent lawyers like the doj now that we see how easily that can turn and we can get the maybe bad actor involved a little bit easier than we thought, should we have a different balance of the timing? Because we know those bad actors can exist and do exist and are there. That's my concern on the timing issue. The second issue, and I'll ask you this is a lot of, maybe more academic types that I've had on the show have had, you know, a big issue with Brady and materiality and the idea that prosecutors, not. This might even have nothing to do with bad faith. Right. This could have nothing to do with it. But the way a prosecutor looks at a case, in a way a defense lawyer looks at a case and how they define what is material to a case is very different.
- [24:09]
B
It can be around idiosyncratic issues. Yes.
- [24:13]
A
So with that in mind, how do you feel about prosecutors being the one who also are making the decisions about what is and isn't material to a defense? Because I think that's. Once we move past the timing issue, I then run into a problem with materiality issues. It's just that I don't think. I think it'd be weird if, as a defense lawyer, I got to keep stuff from the prosecution because I determined it wasn't material. They might not be lying. They might think that's real. But, like, of course I think it's not material. I have a obvious bias about this case. I feel the same way about prosecuting.
- [24:47]
B
I. I'll answer your question, but to make a counterpoint first, defense attorneys do that all the time to prosecutors. They do not turn over what they are arguably required to turn over to prosecutors because they don't think it's important because they don't think they should have to. That happens all the time. That's human nature. It's less about prosecutors versus defense attorneys. It's more about human beings. But to answer your question, the Department of Justice has a very rigid rule that directs prosecutors to turn over anything that's arguably discoverable or arguably exculpatory to the defendant. That's. It's a rule that we train on every time we do training on discovery because it addresses your issue, which is how much discretion should a prosecutor have? And the answer is you should always err on the side of requiring or err on the side of making the disclosure. Does that happen all the time? No, but it happens a very, very large percentage of the time. Like, prosecutors turn over everything that they believe is within the realm of discovery for a bunch of reasons. One, it's very hard to segregate the information into separate piles and treat them differently. That's really hard to do. Two, because their reputation is on the line. And three, because if some. If they screw up in some way and their case gets continued because they didn't turn something over, that causes enormous problems for a prosecutor. I'll give you an example. Say you have a trial coming up on June 1, roughly three weeks away, and all of a sudden the judge decides, Harriet didn't turn over something that Harriet should have turned over, and the judge is going to continue the trial. Now I have enormous new responsibilities and problems to solve. I may have witnesses that say the new trial date is October. I may have witnesses that are having surgery in October. I may have witnesses that are going to be out of the country in October. I may have witnesses whose mother or father is going into, you know, assisted living in October and they can't testify. It's really, really difficult to. On everybody involved in the case to change a trial date. So process. It's not in a prosecutor's interest to have a continuance if they can avoid it. And so how they manage their discovery is core to how successfully they can manage their caseload. And that's a really huge deal. And so there's a lot of incentives on prosecutors to turn over discovery and not screw around with it. Do prosecutors in some instances do things they shouldn't do? Sure, it's a human system. It's not perfect. But are there incentives for prosecutors to turn over things early and get them turned over completely? Absolutely. And that is the policy of the department. And it's also the standard that we train on every day at the Department of Justice. At least we did up to Trump, too. What's going on today? I can't vouch for what they're training.
- [28:18]
A
Yeah, so. So I guess I'll respond to this and then, because I want to talk to you about these incentives, because I think this really gets to the heart of the discovery issue, and then we'll move on to grand juries. So I think where I see the biggest breakdown in materiality discussions is always about witness credibility. You know, case law is very clear that the credibility of witness is always material. But if a prosecutor is calling a witness, they must inherently believe that they're credible, because you wouldn't put an incredible witness on the stand unless you had absolutely no choice. And it's just what you got to work with. So if there are certain things that call into question. I think there is. It's Very difficult. You're talking about that human bias. I agree completely. Like, this is a human bias issue that is difficult to deal with. So if you're calling a witness, you inherently believe they're credible, and you have a tendency, an incentive, as you've kind of worded this, to not see the credibility issues as that big of a deal. Because if you genuinely believe that the credibility issues were so big that this person would come across as incredible, I probably don't think a competent lawyer calls that witness. They probably just avoid it altogether. So where I see the biggest area for this human bias to come into place is credibility determinations. And that's where I think they become much more judgment calls. Is this or is it. Which is why to move to my question about these incentives. What if, and I think this is kind of the problem we're seeing now. What if the incentives that you're describing that I do think are real? What if the actor just doesn't care about those incentives? What if the actor isn't motivated, doesn't care about their reputation? I believe that the head of the Civil Rights division of the Department of Justice right now doesn't care about her reputation. I believe that the people, I can't remember her name, who was almost appointed as the head prosecutor for the state of New Jersey, I don't think she cared about her reputation. I think that we are seeing right now, I think that we are seeing right now with the Department of Justice that the norms constraints that you have raised, which I do think can work, that if there's just a bunch of people who don't care about those norms and they have the same discretion that the previous people did, that we run into the problems that I have with the how the balance of power and who makes determinations in discovery happen. So with those concerns in mind about maybe people not caring about norms or caring about the incentives you've discussed, do you think that we need to reconsider how we do discovery and how much decision making authority prosecutors have, or do you think that these incentives can be strong enough even with some actors involved that maybe don't respond to them all the time?
- [30:55]
B
I mean, the folks that you've just described, and I agree with you, who don't care about their reputation, they are a huge freaking problem. They need to go. That's an enormous problem. There's no way that I can conceive of that would deal with those kind of people. And that's why they don't belong in their positions. Will any number of rules that we could write and try and enforce, substantially alter that course. No, I mean it's a. Running a criminal justice system and say the Federal system has 70,000 new criminal cases a year. The state of Colorado criminal justice system I'm pretty sure has a larger number. I mean, these are big systems of human beings doing their jobs. So it's very difficult to have a rules based system that achieves perfection in every instance. There's no such system as in this country. There's no such system in Britain or Germany or Japan. You can go anywhere. I've worked with prosecutors in all of those jurisdictions. It's very much the same everywhere. It's very dependent on the ethics, the compliance, the reputational value that people in those systems feel for themselves. That is everything. So could you write a new set of rules that would change this situation? People have thought long and hard about that. There are lots of articles in popular magazines and legal journals everywhere about that. I've read them. They are fanciful. They're built on a false understanding of how the justice system actually works. And when you create a system that incentivizes people to value their reputation, then you have a system that works as well as we can design one for human beings.
- [33:03]
A
Do you think? I guess the one. The one. Follow on here and then we'll move on to the next one is what about open file discovery? Just that like there is no real choices being made. Hey, if the prosecution has it, we're handing it over. And it is what it is to me that eliminates the potential for the bad actor, which is, I think, who both you and I are concerned about. I probably have less faith in some of the ability to curtail these than you do. But to me, an open discovery process where it's just like, hey, we just hand it over, where we're not making these evaluations, we're not dealing with timing and we can create, I think there will be negative consequences that come with that, of course. So we then respond once we see what those negative consequences are in reality, as opposed to hypothetically, do you think that would solve these problems or why not? If you think not?
- [33:56]
B
I do not think it would.
- [33:57]
A
Okay.
- [33:59]
B
For a bunch of reasons and it's a different level. So I'm going to attack this in different ways. First of all, The concept of Open File is based on a number of false conceptions about how cases really work. There is no such thing as an open file for every case. There is in some systems. So when I was a state prosecutor, the files, you know, they Were literally a paper file that big. It had every police report, it had every lab report. It had, you know, everything about that case in it. And we turned those entire files over, and that worked just fine. Very, very, very few discovery disputes. But that's because the amount of information was such a clearly defined and limited amount of information. That was true in 1980, when I became a prosecutor. It's not true today. It's just that universe of information about a case only exists in a very defined kind of case commonly found in municipal courts and more commonly found in county court in the Colorado system, which means misdemeanor court. Anything that's a felony in the state system, Anything that's a felony in the federal system has a much huger amount of information potentially available for it. And that's because of cell phones, because of computers, because of surveillance, because of the Internet, because of social media, because of a lot of. And that was why my job was created. And what my responsibility was, was to figure out how to manage all that electronic information, because there is an insane amount of it. Like, there's a lot. So the notion that you could have a file that is defined and everybody would agree upon what the file is is false. It just doesn't exist anymore. So that's one reason. Two, when you say, so no decisions are being made. That's a false construct. There are always decisions being made. Is this person a witness? Is this person's cell phone have material evidence on it? Does this surveillance tape have information that's either inculpatory or exculpatory? There are always decisions about what goes into the universe of what the case file is. So to say that you could have an open file would be meaningless. That that simply is not a something that exists in real life. Third, one of the big, big problems that public defenders and the entire criminal defense bar has today is they are receiving more information than they can manage. That's a huge problem, because if you say, you've got to give me everything you have, that could include enormous volumes of information that have no real bearing on the case. It could be old records from a billing system. It could be surveillance from cameras in the general area. It could be text messages, emails, insane amounts of data, very little of which has any real relevance to the case. And what many defense lawyers complain about today is they are getting buried in mountains of electronic data. And an open file policy would just exacerbate that situation. So I think that's another kind of false idea about what an open file policy would attain. There really isn't. Particularly in electronic world that we live in today, there isn't any way to draw a hard boundary around what the contours of the facts relevant to a case are. Doesn't exist. So you got to have people making judgments. You have to have them incentivized to want to provide the information, the content and also the format and the quantity of information that is going to help the other side. That's very difficult to do for all the obvious reasons. You know, prosecutors want to win their cases, defense attorneys want to win their cases. People want to cheat, you know, around the edges on what's discoverable, so forth and so on. You've got to deal with those sort of around the boundary issues. But for the bulk of cases, and this is where I think it's important to remember, 95% of cases are proceeding normally and people are getting the discovery that they want and need and they're making intelligent decisions about how to handle their case. There's 2% or 1% or 5% of cases where discovery decisions are more difficult. And you've got to deal with those in a lot of different ways. You have to have systems for managing the information. You have to train people on what's discoverable. You have to have policies that say when you're in doubt, err on the side of disclosure, all those kinds of things working together. But fundamentally there is no such thing in reality as a file that you can say is open that doesn't exist.
- [39:28]
A
Yeah. So I guess, and I'll just respond to this just for the listeners so they can kind of, you know, play with these ideas and you'll come out how you want to. I guess what I would say is part of your issue with open file discovery is people are still making decisions about what is relevant and what is material. And I would just say take those. Those decisions also to be made. If it touches the case, it gets disclosed. And that would. You are right, obviously put more emphasis on what the defense lawyers need to do. But then that becomes a. Are we funding public defenders, criminal defense lawyers to the requisite level to meet the demands that we as society. And I think folks for those are not.
- [40:01]
B
Yeah, clearly are not yet for those.
- [40:03]
A
I was going to say John is shaking his head very much so he agrees with me that we're obviously not. So I think that's more of a. Are we willing as a society to pay the cost of the decisions we make on who we decide to prosecute and that that cost includes the defense side? I say the Answer is, no, we are not. And that means we should change our policies. That's a different conversation. But I do just want to say, like, to. To. To be responsive to you so the listeners can kind of hear this and we'll move on to grand juries. Is that. I think where I disagree with you is that if we move to OP A, the open file I envision doesn't. We take materiality and relevance in these things and we just completely remove them. That's what I want. So maybe that isn't an open file system, but the questions about materiality and timing and relevance, I think that the people who should be making those decisions are the defense lawyers. And the only way they can make those decisions or if they are given everything and they get to decide, that creates other issues. But that would be my response to that. We'll let the listeners out there, y' all go ahead and you determine where you fall on that. Now let's go to grand juries. And before we get into that, I want to talk about. Why did you leave the doj?
- [41:07]
B
My job, as I just mentioned, was to get everybody in the Department of Justice working together on how they manage all of this electronic information. Cell phones, computers, surveillance, social media, everything. It's a lot. You have to have the, you know, compatible technology. You have to have compatible business practices. You have to have people talking to each other. And that was my job, was to build all of that. And we, the department developed this whole focus on this strategy from about 2020 through 2025 through the end of Trump one and the beginning of the Biden administration. And we created a number of institutional systems, people roles. We institutionalized this kind of innovative innovation approach to dealing with evidence. And we had people up in their jobs, they had assignments. We had groups working on various issues. And all of that was working really well when Trump came into office in January of 25, and the Trump administration destroyed that entire enterprise. And I stayed around during 2025 to see if they would resurrect it, because a number of people around the Department of Justice were advocating that we need to keep doing what we were doing before, otherwise we will be crushed by electronic data. And the new Trump authorities in the Department of Justice had zero interest in continuing anything of that nature. And so I just decided, you know, September, October of 25, this is not going to change. They are never going to understand the problems they're creating for themselves. And it's time for me to get out. And so I left. But it was the complete abandonment and Destruction of all the innovation that we had created successfully that we had up and running in place and that people were really committed to. Part of that, because you and I talked about this briefly earlier, was working with the public defender system, because if we don't have business practices that work for both prosecutors and public defenders, we don't have a system that functions. And so we had, since about 2011, we, the Department of Justice had put a heavy emphasis on working with the federal public defender system on mutually agreed upon business practices. And we had written protocols that we trained public defenders, prosecutors on. We had policies that we had trained people on. We did some coordinated training for prosecutors in the defense bar. There was a lot of engagement that was very successful because it was in everybody's best interest. When you fight about things you don't need to fight about, you don't get your work done. So it was very successful and we had a lot of progress and we were still doing things even, you know, at the end of 25, we were writing training for judges together. Jointly, federal public defenders and Department of Justice were developing training materials for judges on all of these issues. And that's, you know, that's part of what needs to happen going forward, and that's part of what the Trump administration has destroyed. And so there was really no reason for me to stay.
- [45:01]
A
And was this largely driven by the former Attorney General, Pam Bondi? Was this driven by people beneath? Like, at what level was this drive to change all of this stuff coming
- [45:12]
B
from, to unwind it and just abandon it? I mean, I think it came from Bondi, Blanche, and mostly from their subordinates who were the people I was dealing with. So there is a crew of lawyers who work directly for Todd Blanche, who is the deputy Attorney general. That's the real operational hub of the department. And those are the people that I worked with every day. And they just, they had no willingness to continue it. They didn't understand this. One thing is important, I think, for everybody to know is the people who get put into those jobs are not the cream of the crop. Like, these are not the best people in the United States. These are not people who have the experience, who have the judgment to do the jobs that they are being handed, and they are not. There's a lot of incompetence. Yeah.
- [46:13]
A
Okay. So on that incompetence, we're going to talk a little bit about the grand jury side because I think this is a great place to continue discussion of, like, what power do prosecutors have now that we, I think, you know, people who listen to this show are probably more inclined to believe that we've had corruption issues for a long time with attorney generals. Right. Like this is not new. The political appointment of these individuals have led to some people who get politically appointed, not just incompetent, but I think who have been bad actors in our system. So the grand juries and I think the indictments that started coming down started to be a conversation early in the Trump administration because we saw something that we don't see very often, which is no bills, indictments not coming back. It is incredibly rare. You know, I think people have pointed out that at any given year in the federal level, 98 to 99% of
- [47:02]
B
a time, much higher. No, I mean, I. I was a, you know, an everyday prosecutor in the federal system for 20 years. I never heard of a no troop.
- [47:13]
A
So. So that we know is the system. And then we started to see, especially in the early Trump administration, a series of cases. I think most famously the guy who threw a sandwich at a DHS or. And he didn't even get indicted for that, proving that you cannot, in fact, indict a ham sandwich. For the first time, we have evidence of it. But I want to ask you about this in particular, because a lot of people who listen to this show, myself included, are viewed because of the high rate of success at a grand jury, which is supposed to be. I think if we think of the original purpose of a grand jury is to be a filtering mechanism, that that filtering mechanism is not happening in the way that it was envisioned, and there might be some tweaks we need to make. The grand juries. I know when we have discussed this, you disagreed with that and you thought, I do disagree. Tell us why.
- [48:01]
B
So the assumption that the absence of no true bills means the grand jury isn't performing its filtering function is false. That's not at all true. What it is a measure of is its success. In other words, the cases the prosecutors are taking to the grand jury and are resulting in indictments represent the success of the grand jury system, not its failure. The grand jury does act as a filter in a great many ways. Many, many cases go to the grand jury that never result in true bills or never result in indictments. You don't know about those, but the grand jury is performing that function. They are challenging witnesses, they are challenging prosecutors. They are indicating their distaste for a particular proposed charge. Like that's happening, but it doesn't. It's not only measured in the absence of a true bill. The true bill is A measure of one thing and that's where you have a butt headed prosecutor and a grand jury with a backbone. Right. That's what you're seeing in a. No, true, Bill, but the grand jury is performing an enormous service for the public in filtering out bad allegations, bad ideas about potential cases every single day. And they do, they take that job very seriously. I've worked with dozens and dozens of grand juries for, I mean for 20 years I was in the grand jury every week working with grand jurors, they perform an insanely valuable filtering exercise.
- [49:42]
A
And I guess to start kind of similar with discovery, I kind of have two critiques that I'd like you to address. The first one sort of to address when we originally spoke, this was before the new indictments. The new indictment brought against James Comey which has gone forward, that was a secured indictment. And then the indictment against these other different.
- [49:59]
B
It's a different allegation, but it's a new case.
- [50:01]
A
A new case and then a new indictment brought against the Southern Poverty Law Center. And the reason why, and I've seen a lot of critiques against especially the Southern Poverty Law center are both the quality of the actual filing itself has been maligned as being kind of reading like some truth social posts. But I look at that and go, okay, maybe I hear you there, John, that there is, you know, prosecutors tend not to bring bad cases or malicious cases and if they do, it's going to get filtered out. That's what happened with the ham sandwich case. That's what happened with a lot of those, I think lower level prosecutions that people just felt like, why is the federal government bringing this case? Like this is a state case, this is a county case, this isn't a federal case. But I now look and I see, well, I see more competent bad actors bringing a case against the Southern Poverty Law Center. And I go, this grand jury system, if you have a competent bad actor, they're going to get through the grand jury system. They're going to be able to do it.
- [51:01]
B
So does it's a complicated story. It's not just there is a string of prosecutors involved in that story who have malign intent. Yes. It's also a number of things. I mean they brought it in, I think the Eastern District of North Carolina, they didn't bring it in Virginia, they didn't bring it in D.C. they didn't bring it anywhere where you have a very sophisticated grand jury population. Right. I mean there's a reason they brought
- [51:31]
A
it there, which is going to be my Second, that goes to my second critique, which is about like, we'll talk about that in a second. But just to address the like, okay, so we see that this system clearly, right. I think anybody who's paying attention to what is going on with the Southern Poverty Law center prosecution, and there are other ones that people, you know, feel free to reach out to me to point out, but this is the one I'm going to focus on because it's salient that just show that like, you know, it isn't that hard for a competent bad actor to get through the grand jury process. And then once the machinery of prosecution starts, right. Like that puts real burdens. Like the Southern Poverty Law center is gonna have to spend a lot of money on this defense.
- [52:12]
B
It's an enormous burden on them to defend that case.
- [52:15]
A
Same on Jim cone, on any and anybody. That once you start the. And I think this is where defense minded people and prosecutorial minded people can often diverge is that the defense minded people go. The process can be the punishment. Even if it doesn't result in a conviction. A person going through this like that can be enough. So we need a good filter. That's why I care so much about a filter is because I do worry about like these cases that drag on, that maybe they end up getting dismissed by a judge five years down the
- [52:45]
B
road or sooner or sooner.
- [52:47]
A
Right. Like that's still a burden. So with the, with that in mind, how would you respond to that critique of maybe we should do something? We could talk about what that something is, but maybe the reason for reform is is that competent bad actor who can secure an indictment like they could against the Southern Poverty Law Center.
- [53:05]
B
Yeah, I mean, let's start with the context. We're talking about two cases. There are more than two, but we're talking about the Comey, you know, 86, 47 case and the Southern Poverty Law Center. Those are two cases out of 60,000 cases that are going to be brought this year. Like, we're doing pretty good as a system. Right. I don't want people to lose sight of that. Secondly, there have been for decades proposals about alternative ways of running the system. They've never caught traction because they're not practical, because they don't address the problems, because they create problems of their own. If somebody has an idea that'll work, I'm for it. Everybody's for it. The difficulty is it's very easy for us to go, well, these are examples of things we never want to see happen again. So therefore we need to change the system and what the really examples are of in my judgment or that no system is going to be perfect in 100% of the cases like that's just not attainable. It doesn't exist in any country on earth. It doesn't exist in any state system. It doesn't exist in the US federal system. That's a problem, that's a challenge for us. That's why we do so much training. That's why we have lawyer ethics. That's why we have institutional norms. We have all of those things to try and forestall that sort of outcome. And by and large my 35 years in the department, by and large, not 100%, but by and large they worked for 99.99% of the cases. Right. That's success. There are going to be problems. Can we write rules that are going to unwind human nature?
- [55:00]
A
Yeah, to me, and this is largely because we have become a plea barg driven system at every level of prosecution. Obviously I think the lower you go in severity, the less plea bargaining is a part of it. We get more jury trials in municipal court say than you do in federal court just because, you know, that's how it works. I would contend that one of the things that I like to see because the jury trial has gone away just at every level, that the rules of evidence at a jury trial should apply in a grand jury because we know that a grant, an indictment in many cases is just about as good as a conviction because we have a plea driven system. That, that, that would be one proposal and we don't have to. I want to get to the second one because I know we're running short on time so we don't have to go back and forth to that. I just put that out there as like a thing I have heard for people to postulate and consider. The last question, because you brought up and I, I do think this is another big issue. You've talked about the districts that they bring these in and that hey, the grand jury agrees. You know, it's a, it's a different political makeup. I think that is a problem with the way we do grand juries in that a, a prosecution can be as corrupt as humanly possible, but if the people they go to agree with that corruption, there is no filter, there is no check. And we are becoming such a hyper polarized society that yeah, we can go find a community that playing the odds can't get 100% certainty, but playing the odds we can go find the place where this might work better for us and we can now go choose that. So part of the reason why I am also a proponent of reforms to grand juries is because there is this real intractable problem of like a grand jury is only a filtering system if it disagrees with the corruption of the government. And sometimes it doesn't. Sometimes it goes. You know what? Actually we like this shit.
- [56:53]
B
It did in all those other instances that we've read about in the last year, you know, in the Eastern District of Virginia with the first Comey case in the ham sandwich case in D.C. and other places. I mean, a lot of times the grand juries are rejecting really stupid prosecution ideas. So the fact that you can find a grand jury will agree with a bad idea doesn't mean that the grand jury system as a whole is seriously flawed. It means additional things need to happen.
- [57:27]
A
Okay.
- [57:27]
B
Yeah.
- [57:28]
A
And I think, listen, I think this is where we have our disagreements and the reason why I was so excited to talk with you, because I don't get to talk with the old former DOJ all that much. So I want people to be considering these ideas, just to hear the back and forth. The last question I have for you, and this is really a 30,000 foot view, man. I think everybody is very concerned about the direction that this administration is going. I actually think, and you tell me if I'm wrong here, I think that Blanche is going to be worse than Bondi. From what I have already seen, he seems to be much more comfortable and Bondi was very comfortable with retaliatory prosecution. Seems much more gung ho about it. Seems to be auditioning to get the full time attorney general position and not just a partial position. And that's driving him to do a lot of crazy stuff. And I am deeply concerned about this institution and what it will become and how it will be used in the next couple of years. So in broad strokes, right, we're here now, we have the bad actor with the reins on the power. Do are there any sorts of reforms or constraints on power now that we see how it's being abused that future administrations could implement that you think would make sure that we can't end up in this situation again? Or do you think this is just kind of the nature of the beast? This is politics?
- [58:49]
B
Well, fundamentally I think it's politics. Meaning by that, I mean, it's up to the voters to throw out these bumps, right? That's the ultimate answer. And I think that's what the US Constitution and what democratic societies have relied on for, you know, 250 years are there other things short of that? Yes. I think we could institutionalize more separation between Department of Justice decision making in the White House. We definitely, after Watergate, there were many institutional norms created to provide that insulation, but they were never formalized in a way that was enforceable. And we're seeing that if they're not enforced, they don't mean a lot. So I do think there are choices we could make about how to isolate some of this decision making, and perhaps part of that is more public exposure. If you're going to indict Jim Comey or the Southern Poverty Law center, you're going to have to provide some kind of public rationale for that. Right. So people can go, yeah, oh, I didn't know that that makes sense, or that's just as stupid as it looks like. I don't know. There are things you could do. Ultimately, all democracies have this struggle, Right. When a authoritarian figure like Trump comes in and wants to dictate outcomes, all democracies are struggling with that. That's a challenge in Italy, in France, in Britain, everywhere. And, you know, we will learn from this. Hopefully, voters will pay more and more attention. I think. I personally think as much as I despise Trump's policies, I think the one good thing that's happening is way more. More voters are paying attention to these issues. And hopefully, you know, we will see that in the November elections this year. We're starting to read predictions that there will be an enormous backlash against Trump. We'll see.
- [61:07]
A
Yeah. I think to put a bow on it, you know, I take a long view of some of the issues that I've seen with the Department of Justice. You know, if anybody's curious, go look at the Iran Contra affair and the role that the Department of Justice played in that. I think that's problems. The Department of Justice's role in things like cointelpro like this did not start prosecutorial overreaches, didn't start with the Trump administration.
- [61:30]
B
No.
- [61:31]
A
And I don't think they're going to
- [61:32]
B
go away with any rules that we write.
- [61:34]
A
And my. And I think what I just want people to walk away with is, you know, I think there has always been this assumption that the Department of Justice wouldn't have these types of actors in charge of it, which I think is silly, because like you said, it's politics, right? Like, if enough people vote for crazy, we're going to get crazy. Like, that is how democracy works. So I am very curious about how we make sure that when the democratic process works, the way it does, which is to allow people to pick who they want in these positions. The attorney general, it's always going to be a political appointment. It's just how it's going to work. That's how our system is set up. If that's the case, where is, where do these political appointees that can be influenced by the type of politics that we see today? Where can their power be curtailed? There are some places where it might not be possible, but there are probably out there. And I'll leave this to people who know far more about the federal system than I do. I hope we can identify those positions. And, and that's why we talked about discovery and grand juries, because those are the two that I'm most comfortable with. But I'm sure there are people out there making that plan and that's all that I hope for, is that we are making a plan to where we can curtail the influence of corruption on power. How do we curtail that in the future? John, thank you so much for joining me today. If people have any questions, want to pick your mind, is there anywhere you'd like to direct them towards or anything like that?
- [62:57]
B
Can they go through you?
- [62:59]
A
Yeah, of course, yeah. If they want to contact you, just reach out to me.
- [63:01]
B
Just reach out to Hunter and I'll respond through Hunter.
- [63:06]
A
Fantastic. Alrighty. Well, John, thank you so much for joining me today. Thank you for having me. Thanks again everybody for tuning in today. If you like this today's episode and you're liking the show, please remember to, like, subscribe, leave a rating, leave a review and share with anyone who you might think is interested in learning more about our rotten criminal legal system. If you would like to contact me with any questions, concerns, feedback or potential guest recommendations, you can go to publicdefenselessmail.com and shoot me an email. You can also find more about the show@publicdesign defenseless.com or on Instagram at Public Defenseless Podcast or on Twitter at P. Defenseless Pod. As always, folks, thank you again for your support. If you have the means to do so, it would be great if you could go down to the Show Notes, go to Patreon and subscribe for as little as $5 a month where you can get access to the show a day early and the video versions of the show. Again, thank you all much, so, so much for the support and hope to see you soon.