 This is Think Tech Hawaii, Community Matters here. Life in the law here on a given Tuesday, this time with John Edmonds. John Edmonds is a litigator, been practicing litigation law since the 60s. Am I right about that, son? Yes, that's right. Welcome to the show. You've had some very high-profile cases, including one we're going to talk about today, which involved the Kukui Plaza litigation back in the what, the 70s? 1977. Yeah, those were the heady days, weren't they? 40 years ago. They were pretty active in those days on litigation that everybody was reading about every day in the newspaper. You still are. I have to add that. So John, what's interesting about that litigation is there was an issue there that has come up again in the federal context involving, in the federal context, let's see, it was Paul Manafort. Has been indicted. Has been indicted. By Robert Mueller. By Robert Mueller. It was an important part of the Mueller investigation. For money laundering. For money laundering. And Mueller was, pardon me, Manafort was Trump's campaign manager. Right, very close to Trump. This is all very high-level stuff going on right now. Manafort sues Mueller to stop Mueller. Yes, Manafort turned around and brought a civil suit against the team prosecuting Mueller and his team. Okay. And there's an identical parallel to the Fawzi bribery prosecution because in the middle of the Fawzi bribery prosecution, the key witness who had also been indicted, Hal Hansen, turned around while under indictment and brought a civil suit against the attorney general, the prosecutor and the governor. Okay, let's look at the parallels. It's very interesting. So the juxtaposition in the federal one happening right now is this current news currently happening in the courts is the person who was indicted is suing Mueller the investigator. No, prosecutor. Mueller's prosecuting. Prosecutor, the prosecutor, to stop him from prosecuting. Yes. This is very unusual kind of suit to begin with. Very unusual. And then the question is, there's two questions. Really one is, is a matter of law, can he do that? What's going to happen when the courts take a look at this? I guess they haven't really ruled on it in that case. Just happened. Yeah, it's happening right now. And the other is, is it a good idea for a matter of fact to have done that? Because maybe from a practical point of view, even if he had a right to do it, maybe it would backfire on him. And we can learn a lot from what happened to you in the Kukui Plaza because you represented the governor, the governor, Grant Cooper, who was a special prosecutor, just like Mueller is, and Attorney General Ron Amamiah. Okay. Tell us what unfolded in the 70s in that Kukui Plaza litigation with that indictment. Well, the case was actually in trial. Grant Cooper was prosecuting as a special deputy attorney general under Ron Amamiah. Governor Ariyoshi was going to be challenged by Mayor Fawzi for the governorship in the upcoming election. And this is all twisted by politics. It's very twisted. And Hal Hansen had been given immunity by Grant Cooper as a special deputy attorney general. What was his role? He said... Hansen allegedly paid the bribe to or arranged for the bribe that was at issue in the case, alleging that Mayor Fawzi had, through intermediaries, arranged for or taken a bribe over the Kukui Plaza development project. So that case is in trial. Finally Hansen, who had been given immunity, decided he didn't want to testify. And he turned and filed a civil suit against the governor, the special deputy, and the Attorney General. So stop there for a minute. So he'd been given immunity, and presumably that was a deal that he would testify. You get immunity in respect of willing to testify, being willing to testify. What happens when a person who is in an immunity deal doesn't want to testify? Does the deal go away? Does his immunity go away? The deal falls apart. In that case, they got put in very sharp focus because he came to court during the jury trial, the underlying bribery jury trial, and refused to testify. And Judge Toshimi Sotetani put him in jail for contempt. Which is what happened. Well, that's what happens. And you're an immunized witness, you have a deal, then you don't honor it. He was held in contempt for failure to answer questions and put in jail. But he went into jail in custody, then he started saying, I'm never going to answer. And Judge Sotetani, warm hearted Judge Sotetani, said, you know, if he's not going to ever testify, I'm going to let him out, and the case was eventually dismissed. But during that time, Hanson filed a civil suit against his prosecutors. The time he was in jail? Well, during the trial? I can't give you the, but right in there. Right in there. Okay. I wasn't involved in the case until that happened, and then I got a call from the attorney general saying. Okay. That was a fun call. Well, it was interesting. It was Ron Omamiya, and he said, you know, you've been fighting us on the other side of these. We needed to join us. Often, would you come over? And I didn't like what was going on, so I joined. And then I met Grant Cooper, Cooper was quite a figure himself. He had been the famous prosecutor, then he became defense counsel, or Sirhan Sirhan, who was assassinated by... He was shot in the main. Cooper was from the main. Not a local. He was picked nationally. They were trying to find a neutral. Yeah. And when Sirhan Sirhan was indicted because the world was looking at that case, the LA County Bar Association said, we want the best defense lawyer we can put in there. That because we want to get Sirhan off. But the world is looking at our system, that picked Grant Cooper. That was his background. He came out here, worked on the case for about a year, got the indictment, rolled up Hansen as an immunized witness, gets into the trial. Hansen won't talk. And then Hansen turns around and files a civil suit. So I get brought in. And the first thing I did was to take it to a civil suit. I took a... This is a civil suit just to stop the prosecution of Frank Fosse. And I suppose that was on behalf that, at the time, Hansen was trying to protect himself because the deal had fallen apart. He made it fall apart. He made it fall apart. And therefore he was doing it on behalf of both Fosse and himself. He didn't say that. What he did was throw an enormous monkey wrench into it. The idea was a monkey wrench, yeah. And he wanted damages. He wanted not to be held in contempt. He wanted to be cleared and he didn't want to be prosecuted. What's the nature of that claim? I mean, is there a why? I mean, is it just that he wants it or is there a reason for it? Well, he wanted to... He did not want to lose his immunity because the deal could fall apart, but he could still be indicted, re-indicted, I suppose, for the criminal conduct that he admitted to. They got him the immunity. Sure. So what was the basis that he alleged in the suit? Unconstitutional misconduct. The... The prosecutorial misconduct. Civil rights violation under a federal statute. Well, it's a federal court, 42 U.S.C. in 1982, a federal state-right statute. Whereas the original trial was taking place in the state court. State calling on a state court. So it's a change-up. And it gets more complicated because the feds also had a charge against Hanson they wanted to bring for another criminal case, but we could spend the hour on that. You don't want to do that. So the first thing I did was I issued a notice of taking a deposition. A guy that brings a civil suit, you have the right to take his deposition. We get into the deposition. Larry Wiseman was defendant. I remember Larry Wiseman very well. Very high-profile lawyer. Yeah. He worked for Roy Cohn. That's right. He was also from the mainland. He was here. I know he was here in other matters because I met him. We had an office here. Yeah. Yeah. And he stayed for a while. A year or two. He was not a stupid man. No. And he was really good at litigation. Very good. He was a really smooth, charming operator. To a point. But he was defending, he was representing Hanson. So I issued a notice of taking deposition. They show up. And as I begin the questioning, I called for a break and I said to... I said, do you really want him to answer any questions? Because, and I took out a long line of cases, when you bring an action like that and you're under indictment, you want to bring a civil action, you waive your Fifth Amendment privilege against self-incrimination in the criminal case. And there's no question about that. That is the law. That is the law. Yeah. In fact, it may be that even by filing this suit, just the action of filing the lawsuit, you waive your Fifth Amendment privilege. Yeah. And this would apply likewise in Washington right now. That's what... I haven't read that they've done that yet. Okay. Well, maybe they'll watch this video, John Edmonds is his name. I don't think... Mr. Mueller needs any advice when the genius is working for him. I'm assuming they thought of it. But you haven't seen that. They're defending on much more technical grounds than that is that the appointing order is one that if Manafort wants challenges, you've got to go into court in the criminal case and bring a motion. And of course, we argued that as well. But here we were, you know, it was all happening very quickly. Take the deposition and I turned to it, Larry Weiss. So, you're admonition that if you persist in this, if you actually... Well, it was a question. I said, Larry, take a break here. Let's go out in the hall. You really want to go forward with this? Because as far as I'm concerned, if the answer is one question, waive this Fifth Amendment privilege. We go back on the record. A powerful conversation. You know, you make a movie out of this. Well, the press did. It was pretty high stakes and a lot of reporters covering it. I mean, they were on the hall, et cetera. And so we go back in and Larry Weissman says, I think I'd like to take a break in this deposition. I can see him doing that. And I think a day or two later, the case was dismissed in federal court. Oh, God. Yeah. Of course, that left the state court prosecution of Frank Fossey in disarray to put a file on it. It drifted. Yeah, because they didn't have a witness who, you know, was going to touch on it. And it finally fell apart. It finally did fall apart. And so the trial never proceeded against Fossey? No. It never went to verdict because Judge Sotetani dismissed. And he was the mayor the whole time, yeah. Yes, he was. But Governor, she ran for reelection and he won. Frank Fossey did not become the governor. This was a mar on his career for sure. The food plaza was an embarrassment on his career for sure. But the parallel is very interesting. Yes. Because you've got Manafort doing this. Now, you began by saying the second question is, is it a good idea for a criminal defendant under indictment to sue the prosecutor over having been indictment? What's going on? It's not a good idea. No, but let me go back. You know, so in this case, the suit had been filed. Right? Hanson's suit had been filed. So. Well, he only filed it after the underline trial. He had been filed. And your advice, your admonition to Larry Weissman was, if you do this, you know, the risk of open-season. If we keep going. He'd filed. The suit had been filed. Yeah, but could you make the argument that the very filing of the suit. I made that argument, too. Was that the law, too? That was less clear. Much less clear. Okay. But you start answering questions. Yeah. And you can, has a right to waive a suit of amendment privilege. But I'm certain that Larry Weissman had not thought of that, or at least how Hanson hadn't. And it's a crazy thing to do. But you know what? You got to hand it to Larry Weissman. Because when you advised him and given that admonition, he recognized it. He said he's a very, very astute. It must have been a terrific conversation. Interesting. Okay. So now, and that went away. And you know, that was for, you're right. It's complicated and all that. And it was 40 years ago. Who's counting? Well, I'm just saying it was very hard to even go back and put the details back together. The records aren't there. They're gone. Yeah. So interesting the way all this goes away. And a lot of it depends on recollection. Well, yeah. Digging through the law. Yeah. So, okay. I have a similar situation. Is it fair to say, John, that in the interim, you know, I haven't heard of any case like this. Have you? Where somebody who's been indicted or a trial who defended sues the prosecutor to stop prosecuting? I haven't at any high political level. Governor Mayer, obviously a president. Is this happening in any other state? You would think you would have read about it. I've never seen it. Yeah. It happens. You know, it's really questionable as to whether it has good legal basis. But one thing is clear. It's a distraction. It's intended to distract everything and derail things. It's a monkey wrench. Monkey wrench. I don't think this monkey wrench is going to stop much. The proper waiter challenged an appointing order. After all, it's special counsel. If it wasn't special counsel, they hadn't gone out and had to hire a special counsel. It's just a prosecution that would proceed. And Manifor's lawsuit is challenging the appointment of the special counsel as invalid. That's what all the press is about lately, that somehow Mueller, who's a man of impeccable credentials, himself a Republican, they're saying somehow he's in cahoots with or part of this deep conspiracy that he somehow bias. Disqualified. Therefore disqualified. There are a number of reasons why. Probably a frivolous civil suit. Probably is not going to go anywhere. But I don't see that anybody's told Manifor he's waiving his fifth amendment privilege. If he moves forward somebody ought to notice his deposition. Somebody will send a link to this video. We do play a role on the national stage. What can I say? This is really interesting because it is similar for sure. It's very parallel. It's questionable to begin with, but it's obviously got its strategical benefits. To a point though, it may be strategic to have done it, but as has happened with Hal Hansen, you take that one step, take his depot, answer a couple of questions, and you may have waived. Yeah. But what about rule 16? You said it was frivolous. This kind of suit could be treated as frivolous. Does rule 16 have any teeth in a case like this? You're talking about rule 11 for the bringing of the session. I'm sorry. That rule 11 deals with frivolous lawsuits and it's a disciplinary rule. And it allows penalties against lawyers who bring frivolous lawsuits. Rule 11 is a threat lawyers make to each other when they believe that the guy who filed the suit shouldn't have filed the suit. My opinion about what's going on in Washington D.C. from this distance is that it is unique enough. It's a unique enough argument that it may not be a rule 11 violation, but that's going to have to be decided by a federal judge somewhere someday if they persist. I think that the lawsuit is going to get dismissed whether there would then be a follow on rule 11 suit against the lawyer who brought Manafort's action. Who knows. But it's a delaying maneuver. It's in part done what I think the intended. It's gotten a lot of publicity. Suddenly people are focused on is Mueller somehow doing this for the wrong reasons. As to whether there might be value, a basis in that suit. And so it raises this question of maybe Mueller is disqualified. Well, it's typical Trump is always a distraction. Always a distraction. Come at him for one thing. Well, let's go over here for a while and divert you. Yeah. Don't think about this. Think about this. I mean, it's just a story. In fact, we have commentaries about that very issue. If you track on it, you find that he's always distracting everybody. And after this break, John, I'd like to talk about how this kind of investigation proceeds. And what, you know, I know we don't know. It's all behind the curtain. But I'd like to speculate with you about what the strategies are and the considerations that we'll see later. The same kind, perhaps of distractions right after this break. That's John Edmonds, a litigator, a litigator for many years, an excellent litigator in high profile cases. We'll be right back. Hello, everyone. I'm DeSoto Brown, the co-host of Human Humane Architecture, which is seen on Think Tech, Hawaii every other Tuesday at 4 p.m. And with the show's host, Martin Despeng, we discuss architecture here in the Hawaiian Islands and how it not only affects the way we live, but other aspects of our life, not only here in Hawaii, but internationally as well. So join us for Human Humane Architecture every other Tuesday at 4 p.m. on Think Tech, Hawaii. My friend, mother, what big eyes you have. She said, all the better to see you with my dear. What are you doing? Okay, cool. Research says reading from birth accelerates the baby's brain development. And you're doing that now? Oh, yeah. This is the starting line. Push. This is over. You're dead. Read aloud 15 minutes. Every child, every parent, every day. We're back. And like MacArthur, we told you we'd come back and we came back. That's John Edmonds. He's a high-profile litigator, been practicing in Hawaii since the 70s, maybe the 60s. 60s. 60s, sorry. I want to make you younger than you really are. And I don't want to incriminate myself, but it was a success. Okay, so let's talk about this suit. You mentioned in the break that you read Manafort's suit against mother. Well, I tried to prepare for these programs. Of course. It's fair enough that you would. Thank you for that. What was it like to read this? I mean, what did this complaint look like? It's about 50, 60 pages long. This is the whole history of the special counsel and Sight's opinion saying it can be a dangerous tool in the wrong hands, et cetera. But it's challenging the underlying basis for whether a special counsel was necessary. Why couldn't it have just stayed with the AG? And we all know why it couldn't have just stayed with the AG because that AG's office is probably de facto controlled by the president. So they didn't want it there. They wanted an independent counsel. Acting Attorney General Rosenstein said it was necessary. He framed a very detailed appointing order. And that appointing order pretty clearly gives Mueller the power to do what he's doing. But Manafort challenged it in great detail. So all of the Rosenstein and the idea that you needed a special prosecutor at all. Let's back up. Jeff Sessions was and still is Attorney General when the issue became the investigation of Manafort and the investigation of people around President Trump and potentially President Trump. The rules back there required Sessions recuse himself from that case, which he did and he appointed Rosenstein as Acting Attorney General. Rosenstein in turn appointed special counsel and we have the special counsel statute to permit that. It was done with Nixon. It was done with Clinton. Well, I'm sure the special counsel statute sets out parameters for when you can do it. And so, I mean, is there really any issue, John? Well, Manafort's challenging it up down sideways. 40 pages were the challenge. 40 pages in point. The experts back there think it's frivolous. Frivolous or not, the proper form for bringing it is in the criminal case. You go in, you think the prosecutor is disqualified. You bring that before the judge in that case. That does happen. It does happen. They haven't done that. They wanted to make as much of a fuss as they possibly can. Because you're leaving that up to the judge that's going to try the underlying case. This gets you a lot of distraction. Just one thing you said I'd like to dwell on for just a minute. So I remember Sessions lied in his confirmation hearing in front of the Senate. And when that came out, that's when he felt he needed to recuse himself. He lied about his involvement with the Russian issues, as I recall. And he felt when it came out, he felt that he needed to soften it, or there might be worse sanctions against him for the lie. So he recused himself. I'm not sure that's why he would say he recused himself. That's certainly the spin the press has put on it. I think he had a less incriminatory version of why he needed to recuse himself. The notion is that he didn't tell the truth in his confirmation hearing. I think that's settled. And then he recuses himself in order to soften that somehow and get beyond that. Maybe in the way of a distraction even. And that's why the president got upset with him, of course, because that's now why... He didn't want Sessions to recuse himself. He wanted Sessions to tough it out on what happened on the revelations of his testimony in front of that Senate confirmation committee. President's very angry with Sessions for taking himself out of the loop. Sessions should have. That's something that he gets created for whatever reason. The issue we have never dealt with is whether a person who is confirmed on the basis of a lie should remain in office. Because there was no sanction taken against him, no perjury, nothing like that for his lying to Congress. Not yet, but the Senate, of course, would have the power to bring him back, reopen the confirmation. The Senate is not investigating that. No, of course not. It's not the same Senate we grew up with, I tell you now. Any time you're in an issue like that, you first look around the room and see who's got the votes. Everything is politicized. Who's got the votes on that? It's the Republican Senate. So this is actually pretty political anyway. I mean, because they're trying to undo the decision Rosenstein made. And Rosenstein himself, you know, he could be fired tomorrow. Oh, yeah. He could be fired by sessions, or indirectly through sessions. And then somebody could be appointed in his stead and revoke that convening order, that appointment order. That appointed Mueller. And they could start it over? Or who knows what the next acting Attorney General would do? I could say we looked at Manafort suit. You know, he's got a good point. So we're going to undo this whole special counsel thing. We're going to let this go within the Department of Justice. And it's short of Rosenstein. We won't have him there at all. Or they could just cut off the funding. The funding to the special counsel. There's that risk. But right now, that's not happening. There's a lot of pressure. But it could not happen. Certainly could. I really wonder whether when the needle gets closer to the White House, whether those kinds of things will be the kind of desperation moves that seem appealing to him. I agree. It's a great risk. And it is going to get riskier for the president. Yeah. Well, let's look at special counsels in general. I mean, so here we have a special counsel. There are criminal proceedings happening. He's getting close. It was something in the paper that his next big interview was going to be Trump himself. Yes. And when you go that far down the pike, you know, you're close to the end. You've done a lot of work. You're close to the end. You're close to, you know, the, I guess, the conclusions of your investigation and the recommendations of your investigation. Well, that sounds pretty good if you say it fast enough, Jay, but with all due respect for your insight, you don't know because you don't know what's going to come out of an attempt to interview the president, what the president's going to say, and where that may lead you. Maybe to more investigation. Maybe to much more investigation. And what I don't see happening is the kind of questioning of the president that needs to be done. You've seen the press right now that the president's team is negotiating for. We'd like to just get written questions and submit answers in writing. We don't think a space to places don't ever do it. Somebody once said centuries ago that cross examination is the greatest engine ever invented for the discovery of truth by mankind that's ever been known. You can torture people and make them say anything. But cross examination actually truly does get you to the truth. Great part of English law. Yeah, great part. You don't get there with written questions and written answers, which of course, the president being questioned, the president would have an opportunity to run by his lawyer. You'd love to be there, wouldn't you? I would love to be there. I'd love to be doing the questioning, but nobody's asked. I hope they watched. Nobody's asked me to. No, Mueller and his team are as fine a collection of lawyers as you could hope for in a matter like this. Don't you worry that there are Democrats? At least some of them are. No, Mueller is a Rock River Republican. A lot of Republicans are on that team or anti-Trumpers. Jay, at that level in the Justice Department, despite what you're hearing, they are as neutral as you could ever expect. So how does it go? How does it go? You know, Mr. President, would you sit down over there and we're going to have a court report to swear you in. And we're going to videotape this just in case. And we're going to spend the next two weeks asking you questions. And we're going to keep on repeating those questions until your bloody answer them. Is that how it's going to go? No, that is not going to happen. It'll be something short of that. Or the alternative, of course, is that, and this is settled law, Mueller has the power to spin at the president before a grand jury. You can put him in front of a grand jury. And if you go in front of a grand jury, president or not, you don't have the right to have your lawyer in the room. But you could be the defendant in the indictment, no? Oh, yeah. But you can be a witness and you can be a person of interest. But when you're a speeder before a grand jury, both state, federal, you do not have the right to have a lawyer in the room with you. He can be outside. And there are some tremendous high-profile illustrations of this where a high-profile defendant is called in. And after each question, he has the right to send out a question to his lawyer. And it's interrupted and the question goes on. The lawyer helps. But you don't need too many of those before the grand jury catches on. And what happens, you see an indictment coming down. They don't believe you in anything. But what happens here is the law about the ability of Mueller to do that is settled. There's no dispute it happened. Including the president. As to the president, Mueller has that power. And that was settled in the Nixon case. It was settled in the Clinton case. He has the power. I mean something. He's gone this far. He can formulate questions to the president. And he's got enough material already that those questions will be good questions and close enough. We don't know. But he can learn a lot from that interview. You see what's the difficult part of the president's position. The president doesn't know what Mueller's got. He may know, he may not. But he doesn't know how many different people Mueller's talked with. And so he goes in. Mueller is questioning him from a script. The president doesn't know what's in the script. Which is why he ought to tell the truth. Which is why he probably isn't going to go sit for that. But you know, he doesn't usually tell the truth. We've seen that. I mean I don't think there's any question about that. What happens to a witness? I mean he's a witness like anyone else. Under oaths. Okay. He's going to be tested on every statement. Who conventionally, you know, customarily, typically does not tell the truth. What happens to him? Well, if you lie to the grand jury, it's perjury. Is he exempt from a... No, no, no. And a false statement to a federal official, even if you're not in front of a grand jury, is another violation of law. Federal officer is questioning you in official investigation. False statement is itself a felony. Can he exonerate himself? Can he pardon himself? Can he do that? Big question. Probably not. Probably not. It's not logical anyway. The other question you haven't asked me is, does he take the Fifth Amendment? Okay, good, yeah. No, the one thing he can never do is take the Fifth Amendment. Why not? Practically. Because I refuse to answer on the ground I may tend to incriminate myself. You're not going to win the next election when you do that. Nixon never did that. Clinton never did it. No president as a practical matter can do it. John... He has a right to do it. You know, you could walk out of this studio and your phone could be ringing. It could be a White House. And they would say, perhaps Mr. Edmonds, you know, the president has seen this video. He's understood about the difficulties facing him right now. And he would like to engage you, Mr. Edmonds. Would you take that case, John? I would tell him everything I know about how much I don't like him and the case, and don't want to do it. And if there was no one else to do it, I would consider doing it. Because I think that's a duty that lawyers, under circumstances like this have. But that would be my response. Now, the other thing is, he would be an impossible client to represent. These lawyers, he's got... Run the gamut. Some of them are very good. Some of them aren't. But I am convinced they are not... He's not following the advice they're giving him. Because if they were, he wouldn't be talking. They would have told him, no comment, just get off. But they can't control him. So, we assume, I took the case, I got into it, and he kept up, I'd give him the same advice, and he kept on to Twitter. I'd probably withdraw. I'd feel compelled to withdraw. Sure, because you can't help him that way. And that would be the case for any client. He can't help himself. John, so wonderful to have you here today to explore these things. So appreciate your candor and your incisive thought. It has been a great discussion. Thank you. It's going to be an interesting... Yeah, and now we can see what happens. Interesting unfolding of the curtains. Okay, thank you, Jay. Thank you, John Edmonds. Aloha.