This week, as my book tour begins to wind down, I’d like to highlight excerpts from Doing Justice that speak to two issues making the headlines: GOP calls to investigate the origins of the Special Counsel investigation and the humbling of one conspiracy theorist, Alex Jones.
Let’s start with the idea of investigating the investigators.
Since its start, Trump branded the Special Counsel’s investigation as the “single greatest witch hunt in political history.” He relentlessly attacked, not just Mueller and his team of prosecutors, but also the FBI, the DOJ, the intelligence agencies, the Obama Administration, Hillary Clinton and her campaign, the media, anyone associated with the investigation that needed to be discredited.
Upon the investigation’s conclusion, Trump oversold his exoneration and put a new stamp on the probe, calling it an “illegal takedown that failed.” He also suggested the “treasonous” investigators should be held to account with “the maximum sentence that you can find.”
Even as the Mueller report remains unseen by the public and lawmakers, Republicans in Congress – with Senate Judiciary Committee Chairman Lindsey Graham at the helm – are promising to investigate the origins of Mueller’s counterintelligence investigation and whether it was “a back-door to spy on the [Trump] campaign,” based on the perverse assumption that an investigation is valid only if it ends in criminal charges.
Prosecutors make public accusations for a living and by the nature of the job, blowback from the accused and their supporters is somewhat expected. Depending on the power and the size of the target’s megaphone however, the efforts at pushback can be erosive to the rule of law. As I write in Doing Justice:
A typical, if upsetting, tactic is to question the prosecutors’ motives, to allege bias and attack their good faith because if you can discredit the prosecutor, maybe you can cast doubt on the case. Do the words “witch hunt” sound familiar? In the Nixon/Watergate days, these were dubbed “non-denial denials.” They never professed innocence, they just savaged the accusers. Sometimes, distastefully, those attacks take on an ethnic or racial tone. At various points over my tenure, depending on who was being prosecuted, SDNY was accused of being anti-Black, anti-Latino, anti-Swiss, anti-Chinese, anti-Russian, anti-Italian, and so forth. Also, oddly, anti-Indian. On other occasions, we were accused of being anti-Wall Street, anti-Democrat, anti-Republican, anti-politician, and even anti-poker. At some point, over time, having prosecuted a rainbow coalition of defendants and organizations, you would think it would have sunk in that we were just anti-crime.
The best way to inoculate yourself from ugly disparagements is to keep your head down and let the frivolous criticism roll off your back. But even when criticism is colossally stupid, it can still sting. Criticism is hard to take, especially false claims of bias. I thought I had a thick skin before I became U.S. Attorney, but I was not especially self-aware in this regard. Aristotle once said, “To avoid criticism, say nothing, do nothing, be nothing.” Wise words, but Aristotle didn’t live in the age of social media.
Like everyone, I’m looking forward to the Mueller report’s release but I’m wary of the endless political gamesmanship like the nonsense emerging out of Republicans on the House Intelligence Committee who are urging Chairman Adam Schiff to resign because he dared to point out all the ethical breaches that – even if not sufficient to make out a criminal conspiracy – credibly paint a troubling picture of conduct that none of us should accept.
The state of our politics can be disheartening, but there is hope that emerges in the design of our legal system, which does not tolerate uncivility, falsehoods, and intrigue. This fact was apparent last week when Alex Jones was deposed in a defamation lawsuit brought by the families of victims that died in the Sandy Hook elementary school shooting. Jones, who claimed that the massacre was a staged “false flag” operation aimed at disarming Americans, explained his odious lies as product of “a form of psychosis,” where he “basically thought everything was staged.” As the New York Times opinion writer Charlie Warzel wrote in a piece published on Sunday, “The legal system may be the only way to defang a well-known conspiracy theorist at the height of his powers.”
I explore this idea in Doing Justice. Much of what passes for argument in the public square these days would be laughed out of court. Law has much to teach us about resolving disagreements with dignity, reason and evidence rather than taunts and character assassination. As I write:
At a time of headstrong faith that your side is always right and the other side is always wrong, the court of law offers a worthwhile ideal for finding truth and justice generally.
In the courtroom, almost uniquely, the quest for truth depends on evidence and on facts; it relies on examination and cross-examination; it abhors assumption and insinuation.
It relies on the right of both sides to present arguments and to challenge arguments. And it lets both sides do so, without fear of being shouted down or shut down – so long as the presentations are fairly made, with respect and decorum; and so long as they do not make undue appeals to prejudice or fear or emotion. Neither side is permitted to lie or mispresent, to suggest truth isn’t truth, or to offer “alternative facts,” or they will be shut down. You can’t call your adversary a “low IQ person” or name-call in any way; you can’t argue the prosecution is political; and you can’t make sweeping biased statements, like suggesting that Mexicans are rapists or that some witnesses came from “shithole countries.” The courtroom rules force truth and prohibit garbage.
So let’s adapt the refined principles of our legal system to the way we conduct ourselves in our daily lives – with decorum, an open mind, and a determination to form our opinions after we’ve listened to and grappled with opposing views – maybe then we can move closer to the ideal of a civil and informed society.
Doing Justice is now out and it’s #4 on the New York Times best sellers list. If you haven’t already, ORDER your copy, also available as an audio book. Thank you to everyone for showing your support and joining Preet and the CAFE Team in our pursuit and exploration of justice.
THE FEDERAL PROSECUTOR
The job of a federal prosecutor is one of the most powerful positions in government. The challenges of the role are timelessly captured in an April 1, 1940 speech delivered by then-Attorney General Robert Jackson, who went on to serve on the Supreme Court and earned the nickname “America’s advocate” when he took a leave from the Court in 1945 to serve as a war crimes prosecutor in Nuremberg, an experience he described as “the most important, enduring, and constructive work of my life.”
Jackson’s speech, delivered at the Second Annual Conference of United States Attorneys, came at a time of tumult at the Justice Department, and finds great relevance today as federal prosecutors have penetrated the public consciousness. Here’s some of what Jackson told the U.S. Attorneys he led:
The prosecutor has more control over life, liberty, and reputation than any other person in America. His discretion is tremendous. He can have citizens investigated and, if he is that kind of person, he can have this done to the tune of public statements and veiled or unveiled intimations. . .While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst…
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen’s safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
Read Jackson’s full speech and read about the life lessons offered by this singular figure in U.S. history in a Stanford Law Review (June 2017) article written by former Solicitor General under George W. Bush, Gregory Garre.
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Takeaways from Episode 19 of CAFE Insider:
Committees’ need to perform their oversight & legislative functions can override any assertions of executive privilege over subpoenaed documents: The House Judiciary Committee has authorized a subpoena for the full copy of Mueller’s report and the underlying evidence. It has also authorized subpoenas for five White House aides relevant to the obstruction of justice inquiry. A 2008 Office of Legal Counsel opinion takes a position that when a Congressional Committee subpoenas sensitive documents from the Justice Department, the Committee must identify a specific legislative, not just an oversight, need for the documents. Congressional investigative committees have an oversight and legislative interest in a wide array of information relevant to strengthening the integrity of our elections, guarding against and appropriately responding to Russia’s espionage efforts, and addressing wrongdoing not covered by criminal laws.
There’s a thin line between zealous advocacy and extortion: Rules of professional conduct call on attorneys to zealously represent their clients’ legitimate interests within the bounds of the law. Sometimes zealous advocacy can amount to extortion. The criminal complaint filed by SDNY against Michael Avenatti described his conduct as an “old-fashioned shakedown” of Nike. Avenatti crossed the line when, in addition to demanding a $1.5 million payment for his client, he threatened to publicize damaging information about misconduct by Nike’s employees unless the company hired him and his co-counsel to conduct a $15-25 million internal investigation. Had Avenatti told Nike, “Pay my client or else I’ll go public with the information and by the way, you should hire outside lawyers to conduct an internal investigation,” it would have been more difficult for prosecutors to distinguish the line between a tough settlement negotiation and extortion.
The reasons offered by Cook County State’s Attorney Kim Foxx for dismissing charges against Jesse Smollett are unpersuasive: Foxx has argued that the evidence in the case wasn’t certain to secure a conviction, but a conviction is never certain and it appears that there was no change in facts and evidence at the time of the indictment and the dismissal. Foxx also downplayed the case as just another routine Class 4 felony typically disposed of without any serious penalties. But the publicity around this case made it anything but a typical case. Right or wrong, high-profile cases shape the public perception of fairness in our justice system. The prosecutors here failed to follow the appropriate procedures in a number of ways, and shrouded the process in secrecy.
If you haven’t already, listen to “Justice Off-Balance”
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THIS WEEK ON STAY TUNED
Sal Khan is this week’s guest on Stay Tuned. He is the founder and CEO of the online education platform, Khan Academy. The non-profit offers lessons on a wide range of subjects from math and computer science to history and medicine, serving more than 42 million students from over 190 countries. In this sneak peek at the interview, Khan talks about a principle of teaching that applies across all subjects:
Make sure that students are able to see how this subject fits into the universe. Almost anything is beautiful. If you see, wow, this has implications on how the universe works, which is, you know, from the day we were sentient, we’re like, “how does this thing work?” This puzzle that we have found ourselves born into and every topic is answering that question in some way, shape, or form. It’s either trying to understand this mystery of what are we, that’s the humanities, or what is this universe, the simulation, whatever you want to call it, that we fall into. That’s what the science is and, and philosophy and spirituality are, trying to address. And the more you can draw those connections, the better. [condensed and edited for clarity].
Don’t forget to listen to this week’s episode. It drops this Thursday, April 4.
SOMEONE TO FOLLOW
Ross Garber is an attorney and professor at Tulane University Law School where he teaches courses on political investigations and impeachment. He’s also a legal analyst at CNN. Follow him @RossGarber for analysis of legal topics making the headlines.
That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at [email protected].
– Tamara Sepper and the CAFE Team (Julia Doyle, Calvin Lord, and Vinay Basti)