 Okay, we're back. We're live for the 11 o'clock block here on a given Thursday at think deck. I'm Jay Fidel We have the honor of talking to Peter Wolff who is the federal public defender Who joins us from his home or remote to talk about a lot of things around prosecutorial discretion and executive pardons Welcome to the show Peter. Thank you Jane. Good morning. Good morning. You know You're actually the perfect guy to discuss this with because you're on the defense side but you're seeing the process go for years and years and and You know, you can take a good 50,000-foot level discussion at it I mean a viewpoint at it and so I guess what started me off on the subject is the headline in the star advertiser that That William Barr the attorney general of the United States decided to I guess pull the case against Against Flynn Flynn who was prosecuted by Muller Flynn who was convicted by Muller in a federal court Flynn who was sentenced to go to jail who went to jail and the little sounds of of pardon have been leaking out of the White House for a while and now This and it's it's like a pardon, but it's it's something more I guess than a pardon It like wipes the slate clean am I right about that? I think that's right But Flynn actually was never sentenced. He was a scheduled for sentencing. Okay Before his sentencing came up he changed lawyers and then sought to withdraw his guilty plea and so he was never sentenced but now the Attorney General has essentially moved to dismiss the prosecution and You know, it's I would say highly unusual that this happens and it's even maybe more unusual That it happens in a case where the defendant pled guilty Rather than was convicted after a jury trial and then the government discovered some real problem with their case Like a lie witness or withheld Exculptory information or something like that here is I understand the record General Flynn Planned guilty to make an false statement at one point The judge interrogated them again under oath to make sure he wanted to stand by That guilty plea which he said he did That was when the first sentence he was coming up and then now here maybe two years later The government wants to quit on the case Yeah, well, it's Remarkable, does this I mean does this happen? Does this happen when years down the road after so much process has gone on so much media has gone on That the prosecutoring Prescutorial authority decides it wants to make you know pull the case make it disappear as if it never happened I don't think I've ever seen anything like that before have you I Can't remember anything like that. I think it's it's so unusual that you could probably say it was unique If anything like it has happened I'm not aware of it and And it and it seems like the issue That the Attorney General is relying on is that somehow The FBI acted unfairly when they went and asked Flynn questions And then he lied to them I think it's pretty routine in investigations that if people are Decided they'll be interviewed by an FBI agent that the agents more or less expected they're gonna lie or hope they're gonna lie and and it and it happens with some frequency and to then say that it was Unfair that the agents acted the way they did. Well, maybe it was unfair except that it's pretty routine that that's what What is part of the interview to give people the opportunity to live because A lie is almost as good as a confession in terms of convicting you later on Yeah, I mean, uh, yeah, that's very interesting. So the other thing it strikes me and I never did practice in criminal law I'm inside when I was in the military. It doesn't count Is this Usually you you have the the prosecutor with the discretion and he's out there in the field. He's like the u.s. Attorney Um, now this is not the u.s. Attorney making this decision This is the attorney general of the state. He's levels and layers above Any u.s. Attorney they all work for him essentially Um, and I know that makes it even more remarkable, doesn't it? Well, yes, I mean, you know Flynn was a member of the uh cabinet he was national security advisor for Period of maybe about two weeks So that I think makes it a cabinet level official. Although he's not subject to senate confirmation and uh, you know, so everything about this case is unusual the fact that The national security advisor was prosecuted the fact that he pled guilty the fact that the attorney general Has intervened and of course what's supposed unusual about anything at all is that the president that has uh, president trump has made no secret Of his view that in effect Barr should intervene in this matter Because he's repeatedly talked about how Flynn was treated unfairly and how the FBI Acted unfairly and how about James Colby was a no good person, etc. etc Yeah, what makes it, you know, it sounds like the White House has his hands his fingerprints all over this Most recently I saw something in the paper about how the president was considering rehiring Flynn and bringing him back into the White House, which is Even more extraordinary if that happens that's that's going to be um right the end of the tail One extraordinary step after another Yeah, I mean if if I remember correctly on the supreme court building, which is uh, you know Uh styled after I think the part that I mean Athens anyway a greek Revival building giant building washington. You see there's a huge inscription across the front of the equal justice under law, but I don't think this case would give any American citizens in any particular confidence that Equal justice under law is actually a real thing particularly when you're talking about Cases in which the president has a particular interest. I mean to contrast it There was an article last week or so that michael flit excuse me michael cohen Was going to be released to home confinement because he's in a facility which has quite a few COVID-19 infections and He's you know a low risk Prisoner etc etc and all of a sudden it never happened cohen was going to be released and then he didn't get released and then the news articles suggested that President trump was infuriated by the prospect. So You know when you contrast those two things it could give you some real Concern about the notion of a disinterested even handed justice for High citizens as well as the most citizens Yeah, and it goes this goes into the military too talking about the military. You have two cases that come to mind When was the a deserter case bur burb doll bow burb doll Um, who uh when uh, the president was was running He took the position over and over again that burb doll should who had not yet been tried that burb doll should be Should be hung thrown out of a plane shot all these various fatal punishments um, and he continued to Re-endorse that position even after he became president Unfortunately, that wasn't enough to qualify as command influence such as to let burb doll off the hook, but if if a commander a true commander in the military had Exercise that kind of influence. Um, it would have it would have excused burb doll simply under the manual for cost marshal Go ahead Well, I'm just going to say that reminded me. I think he could contrast the uh treatment of captain crozier of the aircraft carrier roosevelt versus the president's treatment of Was it I don't know what his rank was mr. Gallagher of the seal team who was actually convicted in a court marshal and then And then reinstated their apartment. Yeah. Yeah. Yeah. Yeah. I was going to mention. Yeah That's another example of the president's fingerprints all over a case that several tears down Um for reasons that you know, the the public is not likely to buy Or at least in the gallagher case that the the military legal infrastructure is not likely to buy I think uh, although, you know, he courts the military The fact is he lost a lot of support within at least the officer ranks in the military when he did that But this this comes through that description. You mentioned about about confidence about public confidence Um, you know, it's and it's the george washington statement, too The true administration of justice is the firmest pillar of good government And the true administration of justice is really synonymous with public confidence So when you do something when you exercise prosutorial Discretion at these very high levels at the you know chief executive level Whether you do it through william barry do it in your own name You are you are you're testing public confidence and you know, if you lose public confidence Something happens. I mean somebody like you public defender or a prosecutor Somebody who's involved in the federal justice system or in the state justice system You work your whole career to build public confidence. You want the public To to feel good about how the system works equal justice under the law Am I right about that? Isn't that sort of central in in all the people who work the judges The prosecutors and offenders in the in the in the justice system? Well, it is but I think it's uh, it's an aspirational goal rather than anything that's uh Uh actually works out in practice. I mean you don't have to look too far in the history of the country Before you would be you know, quite concerned about the legacy Jim crow laws and racist enforcement of the law And so forth. It's easy enough to think oh, well, we're past that but then you you know see some incident And you just realize well, maybe we're not past that at all and I think If if you were a person which I'm not and you're not who was a member of a minority Which is the subject of these things. It was the year your lived experience on on a daily basis. So I think it's it's a worthy goal And I think there are people working towards it but the idea that we We're there and that there's just a couple of You know odd things here on the margins that we should be concerned about But really not too much because overall the system's working great I think that's uh, that would be a mistake if you if you thought there and there's no greater proof needed than the uh remarking the High percentage of uh people that the united states incarcerates both in the federal and the state system and we have like 4% of the world's population and something like 25% of the world's prisoners. So Yeah, I don't think it's wrong with that now. What do you see prosecutorial? discretion abused in my my view anyway In the case of this uh the flin incident today And in the case of the the other cases we've mentioned I mean roger stone is another one where a number of prosecutors Walked out one of them quit the job quit his career over recommendations to a me a me berman jack jackson the judge On what the punishment should be These are these are really awful examples of how it's going off the side And and my question to you and maybe the answer is different for different cases But the question is what what is the relief? if if if we all conclude that a given exercise of executive or prosecutorial discretion was wrong in some way What can be done about it? They can congress fix it Uh, can other courts fix it? Um, what what can we do it? I think at at this level at the presidential level. There's not too much. Is there anything? Yeah, I think at this level there's not too much But really at any level there's not too much. I mean the theory of prosecutorial discretion is that the prosecutor needs to have discretion so they can make decisions without fear of political reprisal or without favoring one person or the other And that it's a necessary. I guess corollary to the idea of of a separate branches But You know it's subject to abuse and I think the real issue when a subject to abuse is is is Relief through the valet box or through getting rid of the prosecutor who the Citizen decide has abused his discretion and if That were to happen then that's about the only relief. I mean You have a potential for relief If you could prove that the discretion was a decision to prosecute Based on you know, like for example a racial motive There the court if that could be proved could provide relief But when the exercise of discretion is decision not to prosecute or to end a prosecution There's really nothing at all that can Be done and maybe even that's the right way the law should be but then you have Circumstances like this flin case which would give you pause when you're thinking about it Well, you know that leaves the media I guess And it leaves the professional organizations like the bar association the ABA But they haven't really spoken up about this the media have covered it and with certain, you know I mean I believe there's more op-ed going on these days about these issues, but You can't do much legally if you're the media and for that matter you can't do much If you're the bar association for example all these right wing judges that are being appointed and immediately confirmed The bar association doesn't treat them as qualified a lot of them do not get a qualified rating from the ABA And yet they are immediately confirmed You know, even this week there are a number of appointments that are being confirmed Because the senate came back in not to work on the coronavirus but but to work on quick quick Conformations, but let me ask you one more thing peter and that is about pardons because it strikes me I don't know if you will agree, but it strikes me that what happened with with flin and bar today That was in lieu of a pardon And indeed there were discussions and rumors and the like but the president was going to pardon him as he has Threatened to pardon or rumored to pardon others Was this a clever shift of attention From a pardon to a withdrawal of the of the prosecution. Was there a good reason for it? Does it stand up as a Better a better approach within the federal prosecution prosecutorial system well, I think it takes the pressure off the president now. He doesn't have to pardon no flin He expressed his opinion on many occasions that flin was treated unfairly now bar says I'm using my discretion as the chief prosecutor of the united states and We're going to quit on this case and and that's that So it does have implications for the pardon or really here's the ironic thing the pardon power is probably used far too Few times rather than too many times But they're and you can see it and you I mean the person you the president who pardoned the most people That commuted their sentences was obama, but he even pardoned very Many fewer people than probably should have been and we just have these remarkably draconian sentencing laws that have been in effect for 30 years and and the effects are felt all across the country and many states have the same the problem is Is the people who get pardoned and this is due to many administrations a lot of them seem to be People who are friends of the president or connected to fundraisers for the president or in state systems people who Are connected to the sitting governor and the fact that a lot of pardons are issued as on the last day of in office Kind of tells the tale because that means that the interest in doing something about it Has to wane because there's nothing you can do about it So You know, I think that there's more people that need to be pardoned I mean with trump you can see people who come to his attention through kim Kardashian or otherwise those people Who aren't politically connected a few of them two or three got a pardon and they probably deserved it and uh On the other hand it strikes me that there ought to be a better way To identify people who ought to be subject to some executive clemency than you know Kim Kardashian had to taking interest in your case because was hundreds of thousands of people in jail You know her resources and tension span have to be limited as well Yeah, and and uh As with these other approaches The pardon is Unchallengeable and there's nothing you can do if a president decides to pardon or not to pardon You can't take him up on it There's no further authority that could question his his decision process I mean for example in the case of sheriff arapaio I think that was arizona that was clearly an abuse But there it was it was a pardon of a fella who nobody could feel should be pardoned But there's no way to challenge it except in the press That's right. Our pile was convicted of contempt for refusing the federal court's orders And uh was scheduled for sentencing So I guess in that respect, uh, he may be in a similar legal situation as general flin was He was awaiting sentencing. It hadn't been imposed yet And then there was intervention by a pardon process rather than by the Uh, the withdrawal of the prosecution, but the result was pretty much the same Yeah Well, I think we're going to see more of that and uh from point of view of a defender public defender must be of some concern that We're not seeing pardons where we would see them To provide equal equal justice Sometimes the court system doesn't work quite right and there should be a way to Create equal justice Sort of a last clear chance to create equal justice But the executive with the pardon authority has to be willing to hear requests for pardons Does the defender ever make requests for pardons? Uh infrequently it's uh, you know historically the pardon Power has been used very very sparingly. There was an office or there still is an office of the pardon attorney of the department of justice And they almost never supported a pardon in commutation of sentence That was one of the issues that I think in the obama administration That they try to do something about to speed up the process a little bit or make it a little More subject to some You know flexibility I mean It's pretty Unlikely that a professional career prosecutor is going to ever think that a sentence was Too long or was unfair or should be changed by commutation And so, you know that office wasn't very much supportive of pardons and so to the extent that it gets Into a situation where more pardons would be considered seriously and maybe granted. I think that would be a good thing But I do have some real concerns about The idea that you have to be connected to the president You have to be his panel or at least a friend of his friend to Get anywhere that strikes me is the long direction for this to go Yeah, some people would say it's it's open abuse Well, thank you, peter Great to have you on the show. Thank you so much for this discussion even on short notice I hope we can circle back and follow other events that are should or unfold In this administration Oh before we go we have a question and I would I always want to take opportunity Here's a question What is the status of the kloha cases right now to follow up on an earlier show where you appeared I think right So when the court the federal court shut down Because of the COVID-19 threat Those cases were all continued Every case would continue then and they were Those defendants were among those that would continue I think the court is in the process. I know the court's in the process of examining how or when to do a partial reopening of the courthouse and then how to schedule hearings and then ultimately The concern is how would you conduct jury trials? But so those cases are on on hold until the court reopens, but they haven't the cases haven't gone away Uh, they'll come up for the sentencing before judge sebray at some point once the court reopens for More or less regular business Yeah, thank you. Peter. Thank you so much. Thank you. Talk to you soon. Bye. Thanks