 I have the good fortune besides my good friend Jay Fidel, an eminent lawyer and the head of think tech and many other emblems of notoriety and fame. We have with us today extremely generously and kindly because he's in the middle of a mediation. Jeff Fortnoy, one of my favorite lawyers, one of my favorite people in Hawaii and outside. Not only for his intelligence, but for his community dedication and service. Jeff has been the leading First Amendment lawyer here for decades. He's also done broadcasts of sports events, volleyball, football, others on TV. He has been our president. He has held many offices. He's been elected and voted at a federal bar association here, state bar association and others. So he's not only really, really good at what he does, he is very well respected by people who do it and recognize that he is. Jeff, thank you for being with us. He's a heck of a guy. I really like him. Yeah. How much of that was true, Jeff? Very little. All of it. Read his bio. You'll see it. I don't have the time. Moving on. Okay. So we've got some things happening in our courts, in our legal system that raise some really serious questions about where the heck is the rule of law anymore? Where is judicial independence? Where is judicial impartiality? Where's a fair break? In that phrase, no peace without justice is starting to have real meaning in our courts. Jeff, why should then make a difference to ordinary people? Well, you know, I think most people understand that we have three branches of government and frankly the most important branch and what makes us different than lots of other countries is our independent judiciary. And when the judiciary becomes politicized, which it clearly has become under Trump and Barr, probably more so than in the last 35 years since the period of Watergate, I think we're seeing a very sad transition of the court to becoming not an independent branch, but an adjunct to the executive branch. And that's a very bad trend. Why? What difference does it make for ordinary people? Well, I think for ordinary people, you want to know that when you go before a judge, you're going to get an equal shot, no matter who's on the other side. And when you lose confidence in that, when you think that somehow the judiciary is tainted or corrupted, you really have no place else to go. And that's why you see in many countries that are under totalitarian control, the first thing they do is eliminate the independent judiciary because that's really where you go. I mean, you can vote for a legislator, but that's politics. You can vote for a president, a mayor or a governor, that's politics. But your judges are supposed to be independent neutral arbiters. And when you believe they're not, or when they are not, like we're seeing now, it's a very serious problem. So what shows you that the playing field is totally out of whack, completely tilted politicized, corrupted? Well, I think we have to be careful about what branches of the courts we're talking about. I think we're very lucky in Hawaii. I think there's no question we have a very independent judiciary. Although I was not happy to see the Justice Department through our U.S. attorney filing a petition in support of those who want to overturn the 14-day quarantine, which is clearly a political lawsuit, all you have to do is follow the president and his view that there is no COVID-19 anymore that's of any concern. But short of that, I think our judiciary has been very independent. Well, when you see what's going on in Washington and with the president's cronies, you've got to be really concerned. I mean, just look what's going on with Roger Stone and Flynn. And you've got to go, wait a minute, what's happened to an independent judiciary? Now the other side will say, well, what we're doing now is finally getting a better balance through the heritage society and the federalist society. Trump is already through Mitch McConnell, and the Republican Senate has pushed through 200 young federal judges, most of whom have very conservative, I'll be charitable views. And you have to wonder whether it's becoming too politicized. So Trump and Barr will tell you, no, we're just trying to equal the playing field. We had too many Obama and Clinton federal judges. I think you could think maybe it has become way too politicized, but I blame both parties for that. It started under the Democrats. Fair enough. Did the voting rules in the Senate on judicial approvals, federal judicial approvals, did those change under McConnell? No, they changed under the Democrats. And now they're seeing what they wrought. I mean, they got rid of the filibuster where you need 60 votes. And if you needed 60 votes, none of these judges, very few of them, would have been appointed. But the Democrats fooled around with it the last time they were in power. And I don't think they really believed or understood what the results would be going forward. And I don't criticize Mitch McConnell. I mean, he's doing what those arcane rules permit. And we'll see what happens with the country. But look, all you have to do is look at the Supreme Court, which is bitterly divided between liberals and conservatives. It switches five to four, depending upon what Justice Roberts does. But you know that Trump, since he can't run on COVID and he can't run on race or whatever, he's running on, you know, give me another term and I'll pack that court so you'll never have to worry that abortion will be legal or immigration will be allowed to go on. And so, I mean, that's just the way it goes. And we're just in that frame now. But I do think most observers who are looking at this legitimately believe that there is way too much political influence in the Justice Department. And that is impacting the rule of law. So are there countermeasures or counterforces that could effectively resist that? Or is this a tide that's unstoppable? That's why everyone needs to vote however you feel. It starts with the who the president is. The president appoints Attorney General. I mean, look, Barr has made it clear that in his view, the president is a king. That's my word, but that's Barr's position, that the president can do virtually anything because he's the president and cannot be prosecuted or in any other way hindered. And he views himself, and I think a lot of people believe this, I do, as the president's Attorney General rather than the public's Attorney General. Sure, you can have impeachment. That's never going to happen. Although in the last few days, it's gathered some steam and momentum. You know, I think that's nice. It makes some headlines. But, you know, people who feel that the Justice Department has been politicized, I mean, look at getting rid of the U.S. Attorney in the Southern District of New York just in the last week. Look at getting rid of the independent councils for all the various federal agencies. You've got to really question what's going on and how much independence is there. I don't think there's very much. What do you do about that? I mean, it may not be enough to rely on the election. Everybody says, well, you got to elect these people out of office. But at the same time, there have been a number of articles recently about this mail-in ballot issue and about how Trump's comments about fraud in the mail-in ballots, you know, affect people's confidence in the system. This is going to continue into November. And already, the press is reporting confusion and lack of confidence. I suggest to you, Jeff, that that will increase. And by the time we get to November, we will not have an election in which we are confident. Remember his comments in 2016, I will not contest the election if I win. If I lose, it's all fixed. And I think that kind of thing will happen again. By the end of the day, we'll have a situation where if he loses, and I hope he does, he'll be barricaded in the White House, and it'll depend on who controls the physical force as to whether he leaves. There are all kinds of scenarios about November. Both the Washington Post and the New York Times have scenario groups that are trying to develop what kind of scenarios we will see in November. But one thing is clear, there will be some strange, magical scenarios then. And so to say that it will all work out in November, I'm not sure it will, even if the people want to throw him out of office. Well, look, I think you're absolutely right in what you're saying. And I think Trump has made it clear that he's going to challenge the election in November. He's made it absolutely clear. He's going to do everything he can between now and then, speaking of the rule of law and the rights of people to vote, make it difficult for those he believes would not vote for him. He's already said, if there's absentee voting, he's going to lose. I mean, he's already made that public statement. So I think the only hope is that the election is so one-sided that a challenge will be laughed off. If it's close in a few of these states, which will make the difference, Jay, I think we're in for a very difficult time. And we already saw it in Bush versus Gore and people's views about what happened there and the rule of law there. But I don't think, look, this is so political. And I know this probably, you know, a third of the country that, if they heard what I was saying would tweet me to death. Luckily, I don't do any of that. So I don't know. His name is Jeff Portnoy. He's a lawyer practicing. Don't give out my email. But, you know, look, I just think it's clear. I mean, what's going on? I mean, I said, look, doesn't that concern you? Yes, of course, but the question is, what can we do about this? What can you do? You can't do anything. No, the bar association isn't going to do anything about it. The lawyers as a group are not organized. My brother is involved in the leadership of an organization called Lawyers for the Defense of American Democracy. They write letters. That's the word as far as you can. Doesn't work. You get a nice letter. Well, I will I will tell you this. And, you know, I know the Biden people are putting together groups of lawyers all over the country because they know what's going to happen between now and November and on Election Day. And they're going to be there, hopefully, to make sure that as best you can that the secretary of states in some of these red states like Georgia don't do what they can to manipulate the results. I think there's always going to be some question. I mean, look, this isn't new. I already mentioned, you know, Bush versus Gore and what some people believe to happen in Florida. Right. I mean, you know, there's all kinds of conspiracy theories about what happened. This isn't this is all fairly recent, though. You know, you and I have been around watching this for all three of us for a long time. We have never seen it like this. We have never seen where there's an upswell of coverage in the press suggesting that people are not confident of the judiciary. Legitimately, they should not be confident of Congress. Congress is dysfunctional. They should not be confident of Trump. I mean, he needs the 25th Amendment. He that would be an act of mercy. And certainly, you know, the press, the press, you know what I got? And you're a First Amendment guy. The press is our saving grace, but the press is under attack, too. It depends your definition of the press. But look, we're not. We're in a, you know, we're old guys, all three of us. But, you know, we don't really understand. I don't really understand the impact of social media. I mean, that's really where all this is happening. There are so many people who have the ability to spread false rumors 30, 50, a hundred times a day that that that then thousand hundreds millions of people believe for you and I, the press is and for Chuck as well, probably the Washington Post, the New York Times. Then you get into the CNN, MSNBC, Fox Dilemma. You know, when you talk about the press, Jay, I don't know who the press is anymore because the press is probably a hundred thousand people who are on social media right now, either telling the truth or spreading rumors. You see what's happening with Twitter and Facebook. Twitter finally, finally agreeing to stop some of Trump's more outrageous lies. Facebook is still resisting that. And you can debate free speech or whatever. But, but, you know, that that impacts people's views of the institutions. Look, there's no question, even lawyers, all institutions, if you look at, you know, the Gallup polls over decades are at their lowest ever. Whether it's the president or Congress or the press or lawyers, they just don't trust anybody. And you see what's happening around the country, right? What's happening in the last month? There's been a month of protests, not three days, not five days every single day. And you can argue whether they're legitimate or, you know, whether like in Seattle, they should have stepped in and taken back those six blocks. The country's in turmoil and it's going to get a lot worse in the next hundred and forty days. I agree with you about the demonstrations. I think there were three factors working in the demonstrations. One, of course, is a Black Lives Matter and, you know, racist injustice, for sure. That's one factor. The second factor is that people have been cooped up and they have a lot of what we would call it free energy and they have to spend that, especially young young people. And the third is that there's this kind of growing dissatisfaction with the whole system. I do not believe in the whole system. And so what we really have in our head, and have you noticed that there's increasing violence, little outbreaks of violence here and there? We're playing this out, you know, in a way that suggests the country is on fire. And nobody is in a position to put it out. And Trump loves to throw kerosene on the flames. All you have to do is look at the mask issue. You don't have to go beyond masks. Masks are a health issue, end of story. But they're not. They're a political issue now. My brother lives in Arizona. I talk to him every night about what's happening in Arizona, which has thousands of cases in the last few days. He tells me very few people in his neighborhood wear masks and he's a very devoted mask person, worried about health. He'll stop people and say, where's your mask? And they'll just rip into him that the mask is part of the democratic whatever words you want to use that, you know, the Bible doesn't talk about masks. I mean, it's unbelievable how masks have become wearing one means you're a Democrat and not wearing one means you believe in Trump. That's that's unbelievable. Well, let's go to let's go to testing for a moment. Wait one second, let's go to testing. OK, we got a question on the chat box. So let's let's take a look at that. Is there anything the public can do about the clear voter suppression that's happening in addition to gerrymandering, which they can? What can the public do to resist voter suppression? I think they're just going to have to rely on their legislators and their course, but the problem is the Supreme Court took a position. Are you familiar with that case? I'm sure a month ago, two months ago, where they said that it's not our business, gerrymandering is not our business. Right. But this is on voter suppression. Yeah. And I think what's going to happen is that people are just going to have to be vigilant. I mean, look what's happening in Georgia, where they really are fighting with the suppression. But then look what happened in Wisconsin, where they force people to go out and vote and stop mail and voting. I mean, this is a political issue which is taken over the democracy. There's no question. And it's it's a full court press. Yeah, you have the mail in ballot issue politicized and it's coming from Trump. You have the suppression issue politicized and it's coming from Trump. And if you if you scratch the surface, what you get is we're doing this to beat up the Democrats because we know that they what did he say recently? I'm doing whatever he was doing in order because I know. Yes, it's the mail in votes. I want to squash mail in votes because the people who do mail in votes are Democrats. I want to squash. And he's very upfront about it. But look, let's let's not let's just not blame Trump. Let's blame the Republicans in the United States Senate. Not every one of them. There's a couple like Romney, who have some semblance of independence. And again, you know, this has become a very political discussion because it is it is I mean, you can't you can't avoid it. Well, Jeff, people say that. But really, we have never seen this. We have never seen we're we're all ready. We've never seen this in all of our years. And furthermore, you're a constitutional lawyer. You know, you can refer back to the founders. Did the founders ever imagine that every bloody thing would be politicized that the good faith of the country would be politicized? Well, did the founders know about mail and voting? You know, I mean, you know, everybody always likes to talk about. Yeah, I mean, everybody always likes to talk about the founders, including the Supreme Court. I mean, the founders had no clue about, you know, mail and voting, you know, internet abortion. I mean, they know about the post office. Yeah, they knew about the post office. Yeah, that's happened. The post office is about to be defunded. But you know, Jay, you know, Franklin Delano Roosevelt tried to back pack the court. So, you know, I don't think it's new. I really don't. I just think it's become so pervasive. And a lot of that is because of social media and the dysfunctionality of the federal government. Look, I think we don't realize living in Hawaii, how immune we are to really what what's going on in the rest of the country, whether it's voter fraud or COVID-19, the mask issue. I mean, you know, politicization of the courts. This goes back to Chuck's first question. Why do we care? Why are the people in Hawaii care? I grant you they don't know. There's no immediate effect about what's going on in Washington on Hawaii. On the other hand, I think they really need to care because one of these days it's coming for us to where part of the country, what happens in November, will affect every man, woman and child in this state. We should care. There are people on phone banks, you know, here in Hawaii who call voters in other states. Yeah, a lot. Yeah. Yeah. I mean, so that's one thing I suppose we can do. But the other thing is, and this goes back to the subject of our discussion today, we could look to the courts for relief. The problem is when the Supreme Court has turned that sort of an overarching concern. No matter what happens below, if the if the other side, the Republicans can get it to the Supreme Court, they can get arguably a friendly, a friendly solution. And so the Supreme Court's lack of independence, I don't know if that's the right word for it here, is really a great concern because it cuts off an avenue of relief we might otherwise look to. Yeah, but, you know, I want to be sure about this because, you know, depending upon who's in power, they try to get judges that have the same views as they do, even though judges aren't supposed to have political or social views. But here's here's a fact, which, by the way, I guess facts now are false, depending upon who you're talking to. The ABA has for decades rated judicial nominees. It's almost impossible not to get a favorable rating. I don't know what the numbers are, but less than 10 over the last 20, 30 years have gotten unfavorable ratings. Do you know that it's only under this administration that at least four, and I'm not sure the exact number, it could be three, it could be five, nominees that have gotten a unfavorable rating from the ABA were approved by the United States Senate. Now, how do you justify that? Now, you know, you may not be in favor of all these federalist society just judges and lawyers who have views that are much more conservative than mine, for example. But at least they have to be competent. If the ABA finds that they're not competent and McConnell pushes them through, how can you have any faith in them when they get on the bench? He's nominated people that work for him that are 35 years old. There's a guy they put on the court that never once was in a courtroom, never once. And he's going to be a trial judge. Wait till you see who the next attorney general is going to be. Why, what's going to happen to Barth? I'm sorry, Southern District of New York, I meant to say. Well, I know he's going to be. He's going to be head of the SEC and he decided, hey, I'm bored. Yeah, really? Right? He said I'm bored in that job. He said they ran into each other somewhere and he stole somebody. I don't know if it was Barth. You know, I'm bored of being head of the SEC. You know, I'd like to be a U.S. attorney. That's great. That's a great reason to put him in charge of the most important and independent U.S. district court in the country. Yeah. So, you know what? I hear what you're saying, Jeff and Chuck. And it sounds to me like it is a question of degree and that you could find some justification historically or in the Constitution for some of this politicization. But we are we are passing the Rubicon here. We are so politicized that the government is no longer functioning. And this is pretty serious. And what this tells me and I'd be interested in your thoughts on this, ultimately, what this tells me is the executive is corrupt. The Congress is dysfunctional. The courts are no longer independent. Certainly, the Department of Justice only works for the executive as a personal representative. And the press is having problems staying out of the fray here. So, so where does that leave the country? It seems to me we are fractured. We are on a national decline. And there's nothing that we can think of that will actually correct it or even slow the decline. And if he is elected again, or if he sees his power or stays in power by hook or crook, which is more likely, we are going to have more of this. It's going to be more of the same, but in greater degree. What is our what is our future? All of us, all three hundred and thirty million, Jeff. Well, I agree with everybody. I'm sorry, I mean it or two, so let me just let me just answer that quickly. I agree with everything you've said, except I do think we have an independent judiciary. We may not agree with the way it's going politically. But I do think, you know, almost every federal judge is relatively independent. I think it's the Justice Department that's being corrupted. Chuck. No, I think that's right. Jay, you would ask why should we care in a way? Give you two quick examples. One, our environment is our lifeblood, not just tourism, but for our lives. This administration is attacking it without restraint and it's using the courts, depending on the courts, to be able to get away with it. Yesterday, the Department of Justice under bar basically ordered the Hawaii. U.S. attorneys to file. A statement in a suit to stop the 14 day quarantine, to interfere in public health and safety that this state's chief executive and his Department of Health and the medical doctors locally and naturally. Hey, that's what our risk is. They will interfere in every aspect of your life, health, safety, environment, protection, jobs, everything. So the last thing I want to say is that, well, one of you represent me when my taxes get audited now. You know, if he wins, if he wins in November, you're going to need counsel. Thank you. Hey, guys, it's been fun. All right, Chuck, thank you very much. Jeff, thank you very much. Thank you, guys. Appreciate it. You guys are great. Stay safe. Stay independent. You too. Bye.