*Episode published 2/26/2021

Elie Honig:

From Cafe, this is Third Degree. I’m Elie Honig.

Welcome everybody to another Friday episode of Third Degree. As you may know from last week, we do Fridays a little bit different on this show. Monday and Wednesday will be 10 minutes from me on the legal news of the day, and Fridays, I am joined by my co-host from a cast of current law students who we have identified as being the top rising superstars from around the country. This week I am so happy to be joined by Kyra Perkins, a University of Alabama Law School first-year student. Kyra, welcome to Third Degree.

Kyra Perkins:

Thank you so much for having me, Elie.

Elie Honig:

I am excited to dig in with you. What a time for you to do this, by the way. I mean, there’s so much happening right now in the law and politics, and I look forward to getting your perspective. So just off the bat, Kyra, tell us a little bit about yourself. Where are you from? What are you looking to do in your legal career?

Kyra Perkins:

Well, I’m originally from Birmingham, Alabama. I had my undergraduate degree from Emory University in economics, and right now I’m really interested in entertainment and media law, focusing mostly on contracts and maybe IP.

Elie Honig:

Okay. And you are a student, as I said earlier at University of Alabama Law School, correct?

Kyra Perkins:

Correct.

Elie Honig:

All right. So you want to go into defending people like me in the media in the future, if and when we get sued for defamation or that kind of thing?

Kyra Perkins:

Have to protect freedom of speech at all costs, Elie.

Elie Honig:

First amendment. Good. I’m glad to hear you say that. And we’re not going to get sued by the way, because we’re not going to say anything that’s false.

All right, Kyra. So look, it was a big week in the Supreme court. We, first of all, had this decision about the tax returns. The fabled tax returns of Donald Trump. I wanted to hear what’s on your mind about those rulings that we saw this week.

Kyra Perkins:

So many things, but first and foremost, can we just talk about what took so long? I mean, this honestly has been in the news, in the media for the longest of time. Can you really explain to us what took so long and what this actually means?

Elie Honig:

It’s such a good sort of common sense question. How on earth did this take so long? Here’s something that they don’t teach you in law school, Kyra, I’m going to give you a little bit of extra credit education here. You can lose in court six times and yet still kind of win. And let me tell you what I mean by that. Donald Trump has lost this case, his lawyers have lost this case in the federal court, six times over. So first they made this argument. Let me backtrack for a minute here. The Manhattan district attorney issued a subpoena to Mazars USA, which is a financial institution that’s handled a lot of Donald Trump’s business over the years. And Donald Trump’s lawyers jumped in and said, no, no, no, we object. We want to block this subpoena.

Well, and the reason they said was he has what’s called absolute immunity. And that means that while he’s the sitting president, forget about charging him, you can’t even investigate him. You can’t even subpoena him. That case got rejected at the district court level of federal court, it got rejected by the appellate court, and then it got rejected by the US Supreme Court. That was a seven to two decision this last summer where the court said, no, no, no, that’s not the way it works. You can be subpoenaed while you’re sitting president. But the Supreme Court said, if you want, you can try again. You can make all the other sort of normal arguments. And so we went back to square one and Donald Trump lost again at the trial court, at the appellate court, and then this week for the sixth and final time at the US Supreme Court.

Now, Donald Trump lost. The Manhattan DA now has these records that are going to be very important to the DA, but he kind of won. If the goal was just to drag this out past the election, which he did, right? We haven’t seen these records. We in the public, won’t see these records for quite a long time. So one thing that I think is really interesting here, and one of the lessons I think of the Trump administration is how much protection Donald Trump got from his status as the sitting president, right? We know, for example, DOJ has this policy against indicting a sitting president. We know that that really sort of stymied Robert Mueller. Robert Mueller said in his report, oh, my hands are kind of tied here.

We saw him use the status as president to try to fight against this subpoena, to try to delay civil lawsuits that were brought against him, so he really sort of maxed out this idea that the president is in some respects above the law. And I think the reality is, in some respects, Donald Trump has shown us if the president’s willing to push things to their ultimate degree, is above the law. Now let me ask you, Kyra, and this is sort of not the way I think people envision the law, but it’s a reality. Do you think that it’s a good thing for us that the president is in some respects above the law?

Kyra Perkins:

I honestly don’t, Elie. And I was actually just reading for class just last night about Nixon and the Watergate scandal. And he made very similar arguments about being above the law and being protected from impeachment and investigation. And I kind of agree with what the court said, which is you have to compare the right to his confidentiality with what we need to have a criminal justice system that can be respected and can get the job done. And I think that having a president who can just say, well, I’m allowed to do whatever I want and you can’t touch me because I’m the president sets a very dangerous precedent. And when you look at really what our founding fathers envisioned for this country, they were fleeing a monarchy. They didn’t want anybody to be above the law. And I think that any president that is willing to push the bounds and say that I am free from any subpoena, I’m free from any investigation because of my title is very, very dangerous.

Elie Honig:

Yeah. I think that’s well said, Kyra. And I think the argument that the president cannot even be subpoenaed, this absolute immunity idea, I feel pretty comfortable saying that that’s pushing things too far. Right? Of course, you can subpoena, you can a sitting president. I mean, imagine if you couldn’t, right? Imagine if the president actually did what he said and, he was speaking rhetorically, but remember when he said I could shoot someone on Fifth Avenue and not lose any supporters. But imagine if a president actually, God forbid did something like that. You’re saying he couldn’t even be investigated for that shooting while in office? I mean, that’s ludicrous. But what I think is a bit of a closer call and I’m interested in your view on is DOJ’s policy, and this is a longstanding DOJ policy.

It actually dates back to the Richard Nixon era. It’s not some creation of Donald Trump that we DOJ do not think it’s the right thing, do not think it’s constitutional to indict a sitting president. Now we don’t know for sure what the law is because it’s never come up. But DOJ, the office of legal counsel, which is sort of this group of geniuses constitutional or purportedly geniuses within DOJ has come up with this opinion, which has remained on the books that we should not be indicting a sitting president. What they say is if you have a corrupt or criminal president, the right move is impeach him, remove him, and then when he’s out, we can indict him. What do you think of that? Or does it make you uncomfortable at all, the notion that DOJ could? Would you be okay with the position that DOJ can indict a president while he is president?

Kyra Perkins:

I honestly think that they can and they should. What you have is yes, the house can impeach and the Senate has the power to try that impeachment case. But the way that politics are today, a lot of people are not going to risk trying to impeach or remove a sitting president purely because they’re trying to get reelected, and they’re worried about their careers, essentially. The DOJ can kind of take a position of we are not necessarily a political thing, we can be a little more nuanced and make these decisions free from any type of political pressures. And I think that that is actually probably a better way to handle it. It’s very political and it’s very divided. And what you end up with is a group of people who are focused on their jobs and their careers and reelection. And so the president gets away with things that he probably shouldn’t be able to get away with. I don’t think impeachment is the best way to solve all these problems, and I would urge the DOJ to really reconsider their thoughts on this.

Elie Honig:

Yeah. And we just had a really, I think, a perfect example of your argument inaction with the second impeachment of Donald Trump. I think the vast majority of the Senate will tell you that Donald Trump was culpable for what happened. Even those who voted not guilty, even of the 43 Republican senators who voted not guilty, many of them, including Mitch McConnell said, I absolutely hold him responsible, but they use this constitutional loophole of you can’t impeach, you can’t try a former president. So there’s a bit of a disconnect, I think, between the political remedy of impeachment, which for the reasons you say, I think is starting to look like it’s almost never going to work. Right? And then you have your criminal remedies of indictment. So there’s an interesting debate ongoing there.

I do wonder whether DOJ will take a look and re-examine this opinion. It’s only ever been looked at historically when a president has been in the immediate aftermath or on the brink of impeachment. Nixon, they looked at it again. Around the Bill Clinton era in the late nineties. And now there’s some momentum for why don’t we reassess this? It’ll be interesting to see what they do there.

All right. So Kyra, let me get a little more information about you. And I notice that you are an expert, I guess, baker. Do I have that right?

Kyra Perkins:

You do. That is correct.

Elie Honig:

So tell us, what is your go-to baking recipe. If you had to bake something and impress your boss or something?

Kyra Perkins:

Probably my go-to is my white chocolate raspberry cheesecake made from scratch with the crust and everything. It is my absolute favorite thing to make. I’m cheesecake obsessed, but I get a lot of compliments on that.

Elie Honig:

Oh my goodness. How long does that take from scratch? I can’t even imagine.

Kyra Perkins:

Between baking time, resting time, and then cooling time, about four to five hours.

Elie Honig:

Well, it sounds delicious. It sounds well worth the effort. Okay. More from the Supreme Court. There was another interesting case that came down relating to elections, and I know you’ve been thinking about that a little.

Kyra Perkins:

Yes. So Justice Thomas’s dissent was probably the most interesting thing that I have read this week, and that includes all of my law school readings. So my first question would be what does this dissent actually mean in terms of what’s going on, and had the court actually decided to hear the case? How would that potentially affect the elections moving forward?

Elie Honig:

It was certainly interesting, but it was also something more than that. So let me step back for a minute. So this is the Supreme Court case over the rules for voting, for mail-in voting in Pennsylvania. And just for background, the Pennsylvania state legislature passed a law saying all mail-in ballots have to be received by 8:00 PM on election day. They passed this several months before election day. Then the Supreme Court of Pennsylvania, the Commonwealth of Pennsylvania said, no, we need to give more time, largely because of COVID. We need to accept and count mail-in ballots that arrived three days later. Okay. Now there was a legitimate legal challenge to this because our constitution specifically says that the rules for elections are to be set by each state’s legislature. They say legislature, not the Supreme Court, not the secretary of state, not the governor, the legislature.

Elie Honig:

So there’s a real constitutional issue here. Now, the Supreme Court declined, the US Supreme Court declined to hear this case before the election. And the question now is, well, should we, the US Supreme Court consider this case now, now that the election is over? And the majority of the Supreme Court said no, because it’s moot because the election’s over. And I will tell you, I agree with the dissenters here, with justices Thomas, not the way he descended, but I agree with the dissenters, Justices Thomas, Alito, and Gorsuch. They said, why wouldn’t we do this now? Because what’s going to happen is the next time there’s an election, we’re going to have another rushed petition to hear this case, we’re not going to have enough time, voters aren’t going to know what the rules are going to be. Let’s do this now when at least settle the issue. I agree with that. What you make of that? Do you think the Supreme Court should have heard this case now? Or do you think they should just wait until it crops back up again before the 2022 or 2024 election?

Kyra Perkins:

I definitely think that clarity is the best policy. They need to go ahead and make a decision and let the states know what they can actually do when it comes to elections. And I think that that helps both with clarity, but also with faith in the electoral system.

Elie Honig:

Yeah. So we agree here. I say, why wouldn’t they do it now? Right? But they don’t want to. Look, the Supreme Court again, I don’t know if they’re teaching you this in class, but the Supreme court is allergic to politics. They try to stay away from these political issues as much as possible, but here’s where I am off the train, the dissent train. Clarence Thomas issued his own dissent, separate from Alito and Gorsuch, where he went on this riff, this tangent, this detour, where he gives oxygen to these claims of election fraud. To me, the craziest thing, maybe most interesting will be a little more charitable thing, that Justice Thomas writes is this, “an election free from strong evidence of systematic fraud is not alone sufficient for election confidence.”

So he’s saying, okay, there’s no evidence that there was systemic fraud, but we still don’t know that this election was clean. I mean, that’s an impossible standard to meet. That is what a conspiracy theory is. Saying, well, there’s no evidence of this thing, but it could still be true. And throughout his dissent, he really breathes life into these ideas that there might have been election fraud. Now, look, you could say, well, it’s just one justice and he’s sort of a little bit careful about the way he says it. A little bit careful.

Here’s the problem. Now, conspiracy theorists will cling to anything. A lot of times they invent things out of whole cloth. They take a Facebook article that’s nonsense, and then just circulate it. Now you have a member of the Supreme Court, a justice, and the Supreme Court’s imprimatur, the Supreme Court’s weight goes behind that now. And so watch, I guarantee you at some point, some conspiracy theorist is going to point to Justice Thomas’s dissent as quote unquote proof that this election was somehow fraudulent or rigged. So a very interesting, a very unusual week in the Supreme Court. So Kyra, I asked you to prepare a question about futures in the law and perhaps careers in the law. So take me by surprise. What do you have?

Kyra Perkins:

So really the main question that I came up with for you, Elie, is what is the one case that still keeps you up at night?

Elie Honig:

Yeah, that’s a good one. Unfortunately, I know the answer to that right off the bat. And I handled, I mean, hundreds would be conservative, I’m sure well over a thousand cases in my career as a prosecutor, I don’t say I always did everything right. If you do say that, if any prosecutor ever tells you they did everything right, then I would be very suspicious of that. One case I remember in particular from my first year as a prosecutor, and by the way, I was 29 years old. So it’s a little scary to me now how young I was then. Here’s a little lesson for you, Kyra, if and when you become a prosecutor, a defense lawyer, a media lawyer, if you ever get a case file where you’re the third or fourth person who has been given that file, run for the hills, because it means that there’s a problem with the case.

I was the third AUSA to get this case, and it involved the very unusual scenario. The defendant was a person named Eric Nicholson. He was a middle-aged guy. He lived with his parents. He had some sort of low level corporate job, and he was a little off, I’ll just say. And for some reason he was obsessed with the University of Miami football team. Okay? And he lived with his parents in New York State. And what he decided to do was start threatening the University of Miami football program. And he somehow got through to the athletic director and the people who ran the football program and said, I’m going to expose your program for all this corruption that I know about, all these ways you’re breaking the rules, unless you pay me. Unless you pay me, and I think he demanded, I want to say, a quarter of a million dollars from them.

Now, University of Miami was alarmed by this. They got in touch with the FBI. The FBI sort of started to watch the case. And the FBI told Miami said, let’s see if this guy’s for real, let’s have him send us a chapter of his book. He said he had a book he was going to write. So the guy agrees. He sends them a chapter. And I tell you, it looks like a fourth grader wrote it. It was a joke. There was no way it was real. There was no way this was going to be a real book. Now, they ended up taking the case down. They arrested him and they charged him with extortion because extortion is, hey, if you don’t do this thing I want, I’m going to harm you. Right? And the extortion here, in some ways it was a straightforward extortion.

If you don’t pay me a quarter of a million dollars, I’m going to harm your reputation, your player’s reputation. On the other hand, everybody involved, Miami and the FBI knew that the guy was full of it. Right? Knew that the guy had no ability to actually harm them. Now, the case comes to me. It’s already been charged as an extortion, federal extortion. He’s looking if he’s convicted at trial of five, six years. If he pleads, maybe four or five years. And I have to figure out what to do. And I went down to Miami and I met with the athletic folks there. And it became clear to me, is this an extortion under the letter of the law? Yeah, it is. But everyone knew that the guy was not for real. Everyone knew that the guy was fairly harmless. And what we ended up doing on this case was what felt like the right thing at the time.

We made him a plea offer. There’s a lesser version of extortion. There’s a sort of an extortion light statute that says, if you make a threat over interstate wires, that’s a lesser penalty. And so we worked out a plea agreement that he agreed to, where he played to this sort of extortion light. And he got, I think it was 18 months in prison. It was 14 or 18 months in prison, not a super long sentence, but he went to prison. He served his time. And years later, I ran into his lawyer who I hadn’t seen in a few years. And I said, whatever happened with Eric Nicholson, with this guy? Is he out of jail now? Was he still in? And the lawyer said to me, he’s done. He did his time. He had a really hard time in prison. At one point he was beaten up so badly that he lost an eye, he lost one of his eyes.

And that made me weak in the knees and feel sick to my stomach. And I think back on it now, and did I do the right thing? I don’t know. I mean, we came up with this deal where he could plead to a lesser offense and do a year and change instead of four or five years. But I think being a little older, a lot older and a little wiser now, it strikes me that it probably would have been the better thing, it probably would have been a better exercise of discretion, which prosecutors have, to just either dismiss the case or let him take a plea to probation, meaning no jail time. And it’s one of those things that you just have to learn in time as a prosecutor. And I guess the lesson, if I could give you a lesson here, Kyra, without preaching to you, is that prosecutors are not robots and should not be robots.

And you need to do a little more thinking about equity and mercy and justice than just do these facts equal this crime? And they did in that case. There’s no question. The facts equaled the crime. But when you look at the whole scenario, and this guy, and the fact that he’s harmless, and fact that Miami wasn’t scared and the FBI knew that he wasn’t for real. I do, obviously, by the fact that I’m still talking about it now, however many years later, 15 plus years later, I do still regret that case, and I don’t think I did the right thing there. Not out of any ill intent, I think I just didn’t quite have the chops yet the experience yet to do the right thing. So I hope there’s a little bit of a lesson in there for you, Kyra, as you go into your career. I guess the lesson is, it’s not always about the law as written. It’s about you using your common sense. I hope that’s something that they’re stressing to you in your early years as a law student.

Kyra Perkins:

Well, I will definitely say my professor last semester for my criminal law class, the brilliant Joyce Vance, she definitely stressed prosecutorial discretion and the purpose of the criminal justice system. We actually spend an entire class on this, was what is the purpose of the criminal justice system and how do you make decisions on who to charge, what to charge? And when you make those decisions, what are you basing it on? Are you basing it on retribution, deterrence, rehabilitation? It’s actually one of the reasons I’m very excited to see what the DOJ will be doing in these next upcoming months. Because one of the things that Joe Biden says, he wants to focus more on rehabilitation, which I think will be a vast change in our criminal justice system, and I’m really excited to see that. Thank you for sharing that story with me, Elie. I really appreciate.

Elie Honig:

Yeah. And I’m glad to be able to share it with you and our audience, because I think there’s an important lesson there. You are lucky to have had Professor Joyce Vance. I mean, she’s obviously brilliant and knows all about what it means, but exactly for that reason, because she’s somebody who can stress to up and coming lawyers to young people like yourself, that the job is about more than just locking people up and throw away the key, it’s about doing the right thing. So Kyra, thank you so much for joining me. It was a pleasure to talk to you. I think you brought some great perspective to our conversation here. Look forward to bringing you back again in a couple of weeks. Thanks very much for being with us on Third Degree.

Kyra Perkins:

Thank you so much for having me. I look forward to talking to you again. This was so fun.

Elie Honig:

Thanks again for joining us here on Third Degree, I’ll be back with another 10 minute episode on Monday. In the meantime, send us any thoughts, questions, or topics to letters@cafe.com.

Hey everyone, every Friday on Third Degree, I talk with a rotating cast of some of the nation’s top law students about breaking legal news compelling cases and what it means to lead a life and a career in the law. Those Friday conversations will soon become part of the Cafe insider membership. The Monday and Wednesday episodes will continue to be available for free in this feed. Cafe insiders enjoy access to exclusive content, including the Cafe Insider Podcast, hosted by Preet Bharara and Anne Milgram, audio essays from Cafe’s slate of contributors, including me, bonus content from Stay Tuned and Doing Justice, and special live events. You can try out the membership free for two weeks. Just head to cafe.com/insider. That’s cafe.com/insider. And college students with a valid.edu email, you can sign up a lower rate at cafe.com/student. That’s cafe.com/student.

Third degree is presented by Cafe Studios. Your host is Elie Honig. The executive producer is Tamara Seppar. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the cafe team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.