Law For Thee, But Not For Me: Thoughts On A Two Tiered Justice System

>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church. And the libertarian is Professor Richard Epstein. Richard is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution. He's the Lawrence A Tisch professor of law at NYU and is a senior lecturer at the University of Chicago.

Richard, last week, we discussed in detail the indictment against former President Donald Trump. And this week, we've got more criminal cases to discuss, or criminal intrigue, I suppose, starting with Hunter Biden, who was finally charged, at least in one case, two misdemeanor tax offenses that he's pleading to that'll go away, and a gun charge that he can have dismissed assuming he meets the conditions of the agreement.

I know that I've read and heard more speculation on other things he might be guilty of, and we've seen enough photos and video from various sources to suspect other things perhaps. But I wanna get your opinion on a few questions here. Do these seem like appropriate charges, considering their severity?

Do you think he's out of legal trouble as, and do you think there are more cases incoming? And what do you think of Trump's insistence that this is evidence of a two tier justice system?

>> Richard Epstein: Well, and the last thing I think Mister Trump, whom I have no sympathy for in any of his particular charges, has a point.

I don't know what the full extent is of the Hunter Biden case. This is their laptop, which was rife with information in addition to the pornography on financial arrangements and so forth. So to pick out two charges and then to put it on the light end of the spectrum, just strike me as a situation of washing your hands out of this.

There is the following deep irony that always happens, is the Justice Department, and then the president said they keep their hands out of this thing and send it to Mister Weiss's hand to do it. He was an original Trump appointee, which I think is worth noting. But he was also reappointed by Biden, which I think is worth noting as well.

And so the question really is, under these circumstances, does he have to be told what to do, or could he figure it out from the political interests of both the Department of justice on the one hand and the president on the other? And by ending this thing right now or trying to do so, what they do is they stop the investigation, get rid of all these excusiating choices.

And my own sense about it is there's more in these records that requires greater attention. So what's going to happen is it will not end with this. There will be the investigations that are going to be done by the House committee on this with Mister Comer. And I think they will become, if anything, more aggressive by virtue of the fact that they are going to buy into the whitewash story.

In terms of the way in which you deal with charging offenses, there's another great mystery about this, which is to what extent did a memo prepared some time ago by John Ashley still governed? And essentially what the memo said was that if you have a substantial, respectable case for a serious offense, you don't charge less.

Now, you could plead, bargain off of the higher charge, but the whole point is, if you have a sustainable higher charge and you only bring a lower charge, the settlement is going to be already much more favorable to the criminal defendant than would otherwise be the case. And that's what's being alleged in this particular situation.

A lot more is going to come out about all of this stuff. As you know, I have very low regard for Merrick Garland and his performance as attorney general. I think he's a weak and indefisive feature, an indecisive figure, and I don't think he's done anything about any of these cases which indicate that he's actually in control of what's going on.

So there is nothing here that will stop the uproar. And my guess is that the Bidens will be again on the defensive. Because if you start looking at all the stuff about the financial complications, those are very, very serious injuries, I gather. Correct me if I'm wrong, somebody that the president reported $10 million in income and attributed to book deals or something like that, but he only did it in one year.

That's not a book deal. It could easily be misreporting of a bribe, which is somebody that people are gonna say, and I can't say that it's true. But if you think of what went on, Trump gets beaten up by Mister Bragg because he mischaracterizes an extent, and this, of course, is much greater in terms of its problem.

So I don't think these problems are gonna go away. As an observer, I have the following deep sense of uneasiness about this. I do not think that the criminal justice system meshes well with presidential election. I feel that about Trump, even though I think it's quite clear that he's guilty of most of the obstruction charges by his own admission.

I think it's probably true about Biden. So we have a situation in which the two front runners are both under criminal clouds. This cannot end well for the nation.

>> Tom Church: I have to go back and ask about the Biden, you know, $10 million income, because it's something that I think many people are asking for clarification, and it seems like it would only be under the purview of the Justice Department doing some sort of investigation.

Is that right?

>> Richard Epstein: Well, I think so. I mean, but there are always independent reporters who can do investigations even though they don't have the subpoena power. But what is-

>> Tom Church: What about, I mean, independent reporters, but there's also, I mean, House Republicans, a small handful, I think maybe the Liberty Caucus have drafted articles of impeachment for Biden and I think would use it to try and force this issue.

And I want to know, what's your take on.

>> Richard Epstein: I do not like the idea of trying to do an impeachment set of articles right now before the record is to some extent established. The difficulty one has is that if you try to think of what is a high time and misdemeanor, taking large bribes is one of the things that's actually listed as the kind of high crimes and misdemeanors that you have.

And it's certainly something which bees to the distrust in the administration and compromises the security of the United States. So if the allegations are all true, they're much more serious, perhaps, than the allegations that brought down Richard Nixon. So you have to see now what is clear is that given the one time nature of these reports and the constant contacts between Biden and Biden and the Ukrainian government and the Chinese government, there's certainly enough to investigate.

And the way the criminal justice system is done is that you do not go from zero to beyond a reasonable doubt. At the initial stage, you need some kind of weak suspicion that when you get more evidence, you could start having a more intrusive and deeper examination. So everything that we've seen so far means that there's no case whatsoever for cutting off the investigation.

But it's premature to think about some kind of an impeachment chart. But this may yet develop into all of that, depending upon how these papers start to turn out. I mean, one of the things I keep reminding myself, and I wanna remind Alyssa, I'm a professor of law, not a professor of facts.

I have no inside information about exactly what these standard practices are or what those papers contain and so forth. When they become clear, then it becomes easier for you to make a judgment. But it's not clear at this particular point. So the thought that one would say that whatever happened, my wife and the Delaware is gonna end this thing is I think, a very bad mistake to make that judgment.

Just the way, I don't think there's any short ending of what's going to happen to Mister Trump. There's the Georgia investigation in which he said a lot of stupid things. He may yet find himself subject to another prosecution. It's not clear that Jack Smith is going to stop with looking at what happened at Mar Delago.

He may well decide that January 6 contains an incitement charge with respect to treason or something of that sort. Overthrow of the government. So we're a long way done from this. And all this stuff takes time they're gonna be, first, the allegations and the pretrial motions and the political drama.

We are politically in a very, very dangerous situation. So I will say once again what I've said before. I think the greatest service that both Biden and Trump can do would be immediately to announce that they're not gonna be candidates in 2024 so that the political process, a, can get some youth in it.

And can finally steer itself clear of a series of very serious criminal allegations with respect to both parties.

>> Tom Church: Well, hey, let's stay in the House of Representatives because there is some other drama there in terms of, I would call it, well, criminal criminal accusations. Democratic Representative Adam Schiff was, well, House Republicans voted to censor Adam Schiff for what they claim to be misrepresenting facts regarding Trump's ties to Russia.

Including claims that Trump's team coordinated with Russia during the 2016 election. And this case looks like it'll be referred to the Ethics Committee. And I think these things always happen where Schiff could have been subject to millions of dollars of fines and prosecution from there. But instead, we're going to get an ethics committee.

So again, Richard, I'd like to know what you think about, again, this is all related to Trump investigation of Biden.

>> Richard Epstein: Yes, I mean, look, I mean, Trump has been victimized by two sets of investigation. There's the Russia hoax, and then there's all the stuff that was associated with the Biden laptop having all the earmarks of Russian disinformation.

In both cases, everything that was said by Schiff and others was wrong in terms of what had happened. And when you start looking at all the subsequent reports, it's quite clear that they were wrong. It's just recently in the Durham report. But the Horowitz report that went on before that and the Flynn investigation and the Mueller investigation, you name it, they could come up with nothing whatsoever of that kind whatsoever.

So when you're dealing with this very serious situation, if you were to just treat this as a defamation case, as a kind of a benchmark, this is the way it would go. You would have to say that Mister Trump is a public figure. And so, therefore, for him to bring a defamation suit would require that you show that these were knowing falsehoods by somebody with the intention to try and curt him in some particular way.

The damages that you would let, it would be the loss of an election, which is hard to quantify, impossible to remedy by putting him back into the office and so forth. So this stuff is very, very serious. Now, the House of Representatives comes along and what they wanna do is to politicize something, which I think would be a very respectable lawsuit if we brought in the court.

It just cannot be to say that, it really doesn't matter. Is there political motivation? Of course there's political motivation. Schiff has made it very clear that he would like to be a senator from the state of California. And the Republicans have made it very clear by this thing, they're trying to do everything to discredit him.

And so what you do is you get these mixed mode of cases that are then extremely difficult to deal with. But as far as I can see, what you saw was a kind of tribal response on the part of the Democrats. They went into the well of the House of Representatives and stood around him and harassed.

What they needed to do, and what somebody in his case has to do is to publish a detailed document explaining why all of the charges that are made are false. And we haven't seen that. And remember, there was Darren Nunes, who was involved in the same thing. And if you recall, he referred some of these charges over to the FISA court and so forth.

And they kind of laughed at him. They didn't wanna take anything seriously until it turned out that he was largely confirmed in his suspicions when the Horowitz inspection courts came out there. So what happened is the Democrats have engaged in very serious disinformation. One of the things I will say about Donald Trump is many times you have to talk him off the wall because he's about to do something in office which is downright stupid.

But generally speaking, you can talk him off the wall so that he doesn't commit political suicide. And so if you try to figure out how many dumb things he said, the list begins at the top of page one and ends at the bottom of page 5000. But if you ask, did he ever prosecute something on the way in which the Mueller report, the Flynn prosecutions, and went forward in kind of an obvious abuse of office?

I don't think you can name any kind of vendetta that he initiated through the legal system that's as serious as the ones that were done here. So I think that Mr. Schiff does deserve some serious censure. How the process is going to play out, I don't know. The next stage for this to be made is if Schiff has a substantive defense, of which I am not aware of one at this point, he should state what it is.

What you saw was a situation of tribal sense, shame, disgrace and words being shouted by the Democrats. But at this point, we haven't had any answer. But this is going to be a case in which everybody has bad motives. They're trying to get each other. And so we're watching both a criminal prosecution kind of hearing of this sort and a sort of general decline of public morality on the part of too many people in too many high offices in the United States.

>> Tom Church: It seems like the theme here that we're getting at, Richard, is this back and forth, this prosecution, this political prosecution, in a sense. You've been around just a few more years than I have. I'm not going to say how many, Richard, or that it's a lot or 30.

Okay, all right, I'll give you that. But I can imagine that if we went back a decade, two decades, three decades, politicians, people in power doing things that seem either illegal or off, pretty common. And I don't know how often it is that the opposite party is the one prosecuting them, right?

So I think that's the theme we're getting at.

>> Richard Epstein: Yeah, I mean-

>> Tom Church: Go ahead, go ahead.

>> Richard Epstein: No, it's a very important theme. I mean, what made Richard Nixon's impeachment proceedings credible was that all the Republicans believed that the charges made were valid. Then when you start getting with the Clinton impeachment in 1998, it's sort of torturing.

It's for lying under oath about something he should have never been asked about. And you sort of figure out, did he endanger the history of the United States in any way, shape, or form by his relationships with Monica Lewinsky? No, and so my attitude on that particular case is this guy needs some sort of lessons in social decorum.

I can't teach him. But I thought it was silly to bring that as an impeachment. Then when you get to the Trump impeachment, at this point with Zelensky. I mean, I think it's just absurd to try to bring an impeachment based upon a conversation which is audited by 100 people as if it's some kind of intrigue, taking particular sentences out of charge.

I don't think that's good. I was not happy with the impeachment behavior with respect to January 6. I thought Trump's behavior, to repeat it, was appalling, disgraceful, insensitive, and stupid. But that's not the same thing as being criminal. And when people, quote, have sentences in order to indicate that he was trying to incite riot, that's just not a way to do the law.

What you have to say is saying, please go and protest outside the building and do it peacefully. That's not an impeachable offense. Should he have said more like stand down, get out of the building? He should have said lots more things than he did say. But, again, non-speech at this particular source, probably not an impeachable offense, and so on.

And so you see the obvious political stuff there. So all of this thing is starting to be crescendo. And my fear is pretty soon, you're gonna start seeing people talk about impeachment when there's serious policy disagreement. And I do not want the Republicans and the freedom wing of the party to go right now after these people.

I think they have to wait some, one of the things you have to ask about Adam Schiff is could he be impeached, given the fact that he made these kinds of statements? There's nothing whatsoever about the way in which impeachment works, which says that. This could not be the subject of impeachable offense brought by the House and tried by the Senate.

And perhaps that may well yet come. But altogether, I mean, I think a grand alliance in which people drop all these charges in the political arena is appropriate. I do not think it's appropriate to drop the charges against Hunter Biden. He is not a political person. And I suspect once you have to investigate him, you have to investigate the president as well.

>> Tom Church: One last sense of impropriety to investigate and talk about, and that is some recent news out of, well, a ProPublica story about Justice Alito's Alaska fishing trip back in 2008 in the company of billionaires who later had cases before the Supreme Court. So, Richard, I want to know, how does this square with even earlier reports of Justice Thomas and the Harlan Crow story?

Should I be worried about the impartiality of the Supreme Court?

>> Richard Epstein: No, I think you should be worried about the impartiality of propublica. I mean, the first question you have to ask, have they ever done any expose of any democratic figure? For example, have they decided to say anything about Adam Schiff or about Hunter Biden or about Biden himself?

Of course they have not, and it's because they're a one sided operation which is determined to get it. The second thing is, I think there's a genuine confusion here. They are not charging him with a violation of the ethics rules at the time they were put there. Justice leader wrote a response, I had mixed emotions as to whether he should have published anything at all, particularly something as legal as that particular document was.

But it seems as though he and everybody else involved with these things have gotten independent advice of counsel and what it is not disclosable. And so then you can say, well, I mean, he's not required as a matter of law to disclose it, but he should have disclosed it anyhow.

Well, that is not the appropriate way. The reason you want to have explicit disclosure position is to ask people to go beyond them when they think it's appropriate, is necessarily to call into question other people. Private people have privacy interests and indeed, privacy interests on the part of the senator.

So you wanna make this judgment once, and you wanna make it clearly by legislation. If they want to change the standards, they should change it explicitly. Thou shalt not sit in empty seats on places. Don't have to do that. And then if you do that, people can steer to it.

Now, what's going on here? Well, nobody's going to try to impeach Alito or Thomas on the basis of these threadbare allegations. But what's really going on, I think, is an effort on the part of many progressives to say, if we can just taint these guys enough, then it may well be if we regain control of the House of Representatives and keep the presidency in the Senate, we can vote to expand the Supreme Court to put new people on.

There was an effort to do that which Biden had with this commission, which was roundly beaten back, because virtually everybody who has worked before the Supreme Court on the Democratic or Republican side knows that a set of institutions and practices that exist in the Supreme Court are very sensitive to the size of the group involved.

How do you get on bank hearings when it turns out you have 15 people? How do you do a cert pool when you have all these cases riding around in one way or another? What's gonna be the way in which oral argument goes, the speed with which cases came down?

You don't want to change any of that stuff, because at this point it works well. Are there cases in fact, in which there is some problem? I suspect so, but there's only one, I think, that actually really merits an issue, which was the premature illegal release of the draft opinion in Dobbs, which was designed to discredit the Supreme Court.

One of the things that is very clear from all the stuff about Thomas and about Alito, none of this had anything whatsoever to do with any particular case that was decided in any way. I am brought back into another disgraceful episode, I think in the United States Senate on confirmation hearing, there's a man named Clement Hainsworth, who in the early 1970s was up for a Supreme Court position.

He was always known to be an honorable and able judge, conservative. He had written an opinion about Darlington Mills or some case in which it turned out, he said, that a mill that leaves town in order to avoid unions is not engaged in an unfair labor practice. And so what they did is they didn't pin that on him, but they found a financial conflict of interest, which cashed out to be $5 in some way, shape or form.

And I regard that as just plain dirty pool. And so what we really have to do in this particular case is to say that when we get people who disagree with us, we argue the case, but we do not try to gang tankel and always disqualified justices for what we disagree with.

So to put it on the other side, there are very delicate cases that happen. I'll give you one that was mentioned in the papers the other day and how I would resolve it. Alaina Kagan was the dean of the Harvard Law School. She certainly had a great deal to say about affirmative action positions as they were taken inside the Harvard Law School.

And since the deans are always member of a decanal council that reports or deals with the president, probably influenced universal policy as well, especially since she's a lawyer, she did not pull out of this case. Is that right or wrong? Well, the president I think, sets in her favor.

Thurgood Marshall was very active in the National Association of Color People, the NAACP. In fact, I think in terms of heroics, he was probably the single most important litigator before the Supreme Court before he went on to the second Circuit in the mid 1960s. And so should he now disqualify himself in perpetuity in every single civil rights case that comes up?

No, what you do is you have a kind of a bright line rule. Two things, one is there's a particular matter on which you particularly worked on particular case, then you don't get involved in that. I don't think Kagan had that. And then after three years, essentially what happens is we just wipe the slate clean and you have to participate.

There is the old injunction from Justice Rehnquist. Size of the court is small, has to be kept that way. We do not want people going wildly illegally to disqualify themselves or to recruit themselves. And so I think, in effect, that once you're on the Supreme Court for 13 years, what happens is we don't do that.

And so now you say, what about Justice Jackson? Well, if she had any direct interest, it's only one year, she should then change that. But no such allegation has been alleged. So you have these calling things, and many people said, well, we certainly don't want Judge Barrett to sit on anything having to do with the election.

I will cut her off. Now, do we want to say, in effect, well, we certainly don't want to have any democratic appointed by Biden hearing these cases. You can't do that. And so what you really need to do in all these cases is to sit down, take a deep breath, and to hope against hope, perhaps, that you have enough integrity on the part of court members that you're not going to see a scandal.

And then if you wait until the particular scandal appears, it's a very different matter. If somebody told you, for example, that some justice on the Supreme Court was in secret deliberations with some lawyer on some kind of the case, that's very serious, and you don't allow that to go but I do not think that you want these kind of generic charges to go against anybody under these circumstances.

And so I think, in effect, with Justice Kagan, she should sit on this court. I would be very disappointed if she pulled herself out of this particular same thing, the same thing with respect to Justice Barrett, who was the last of the appointment by President Trump. So, I mean, we have to keep to the old norms, and they are under assault from so many ways to now that I shudder for the future of the union if some of these tendencies shall actually become real laws and have real consequences to real people in real cases.

>> Tom Church: You've been listening to the libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on defining ideasover@hoover.org. If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in.

For Richard Epstein, I'm Tom Church. We'll talk to you next time.

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