Navigating Justice: Shan Wu on Legal Defense, Judicial Dynamics, and the Ripple Effects of January 6th

Join the conversation with me, Jack Hopkins, and esteemed former federal prosecutor Shan Wu, as we navigate the complex terrain of the legal system. Our riveting dialogue traverses from the universal necessity of quality legal defense, even for divisive figures such as Donald Trump, to the constitutional pillars of due process and the right to counsel. Wu's expert insights illuminate the pivotal role of judges in the courtroom and the strategic battles faced by special counsels in high-profile cases, offering a rare glimpse into the inner workings and challenges of the justice system.

As we dissect the intricacies of judicial influence and the Department of Justice's decision-making processes, Shan Wu brings clarity to these nuanced topics. We explore the pressures within the DOJ, the balancing act of maintaining its integrity, and the potential for systemic reform to enhance public trust. The conversation also reveals the high-stakes decisions that shape the prosecution of key figures from the January 6th insurrection, contemplating the future implications for those at the forefront of such events and the broader consequences for legal history.

Finally, we shed light on the resource disparities in the legal system, examining how this affects public defenders and the clients they serve, and the judicial temperament that can alter the course of a trial. The potential legal hurdles in the Trump trial come under scrutiny, including jury biases and the strategic defense maneuvers that could prolong the legal battle. Our discussion concludes with a forward-looking perspective on the legal repercussions for the planners of the January 6th events and the enduring significance of these proceedings. Don't miss this thought-provoking episode that promises to leave you with a deeper understanding of the justice system's current state and its direction.

Transcript

Speaker 1: 0:07

Welcome to the Jack Hopkins Show podcast, where stories about the power of focus and resilience are revealed by the people who live those stories and now the host of the Jack Hopkins Show podcast, Jack Hopkins, Hello and welcome to the Jack Hopkins Show podcast.

Speaker 2: 0:29

I'm your host, jack Hopkins. Today's episode of the Jack Hopkins Show podcast features Shan Wu, a former federal prosecutor and a CNN legal contributor. Today, shan represents clients in white-collar criminal and higher education matters. As a member of Cohen Seglius, a Washington DC-based law firm, shan has served as the counsel to Attorney General Janet Reno, as a supervisor in the US Attorney's Office Misdemeanor Trial Section, among other positions, and coordinated with the FBI, the DEA, criminal Division, national Institute of Justice and the White House Counsel's Office on many cases. Shan can be seen on television on a regular basis as a CNN legal contributor and post legal commentary daily on Twitter at Shanlin Wu, and he's also got a website, shanlinwucom.

Speaker 2: 1:32

Now in this episode of the Jack Hopkins Show podcast, I ask Shan Wu the kind of questions that I've had for a long time about the behind the scenes stuff that takes place with federal and state cases at the level that we're seeing them with Donald Trump's debacle, and I think it's fair to say that many of you, on a day to day basis, find those same kind of legal questions popping up in your mind.

Speaker 2: 2:06

Well, how come they're doing this or why don't they do that? And I think you'll find on this episode that Shan answers a lot of those questions for you and that he was the right guy to ask. So with that, let's get into this fascinating conversation I had with Shan Wu. Okay, shan, welcome to the Jack Hopkins Show podcast. Thanks, good to be here. I really have some questions for you today that I think probably a lot of people who will be watching and listening have had for some time as well listening have had for some time as well. To any attorneys out there who are watching or listening to this podcast, you may think well duh, isn't the answer to that obvious? But, as you know, to us mere mortals in the non-legal profession, some of the obvious things, to some of the obvious things to those in the legal profession, are mysteries to us.

Speaker 2: 3:11

They're mysteries to some of the folks in the legal profession too.

Speaker 2: 3:29

First and I'd like to start with this because I know you have worked both sides You've been a prosecutor and you also are a criminal defense attorney, so you've been on both sides of that many times.

Speaker 2: 3:35

I know there are times the average person, myself included we're watching something that Donald Trump has done or another threat that he has made, something he's pulled in the courtroom, and there are times when, in a moment of anger, I find myself wishing that at least for him he could be less protected by the law and they could just throw him in jail Right. But that's very quickly replaced by the realization that it wouldn't just be for one person, that whatever gets applied to one will be applied to all, and I know I would not want that if I was facing a situation to all, and I know I would not want that if I was facing a situation. So what can you tell us about? Why, even with someone like Donald Trump, it is so critically important that he be afforded the same advantages that come through having good attorneys as anybody else who could afford good?

Speaker 3: 4:42

attorneys. So I'm going to take that in two parts. One is the attorney part of it and the other is the First Amendment speaking aspect, which there's been a lot of attention on that part. So the attorney part. Under the Constitution we have a right to Sixth Amendment counsel and we also have a due process right and the term due process gets thrown around a lot but it comes down to fairness and there are a lot of procedural rules in criminal trials designed to protect that.

Speaker 3: 5:18

Fairness for anyone who's been accused of it, unfairness for anyone who's been accused of it. Because, no matter what people may say, I don't care. If you're charged with shoplifting, which is like a maybe two, three day offense it's a really big deal to have to face down the government. They're saying you're a bad person, you're a criminal and you may go to jail for some time and have this on your record. That's really a big deal. It doesn't matter how minor that conviction is, obviously ranging up to far more serious ones with heavier fines. That's why it's really, really important that, no matter who the defendant is and I'll use an example of people we consider to be like really gross people murderers, child molesters, things like that you know child molesters, things like that. It's so important that they have a fair trial, because there's no real way to make sure that you don't can convict an innocent person, and our system uses this assumption, as opposed to the Salem witch trials where you see if the person sinks or not, then they're evil. Um, we have this idea that it's uh kind of the two knights on steeds jousting each other, and whichever knight wins, we assume okay, we'll go with that person, they win. So therefore, it's really important that you have similar horses, you have similar jousting spears and the knights are equally well trained, and that's why it's really important. That's the only way we can make things fair for people, and so it doesn't matter what people may think of Trump personally. That's really a bedrock of the system and I don't know that we do such a great job of that. I mean, certainly, for a lot of folks who don't have Trump's resources, we don't do a very good job of that. I mean, certainly for a lot of folks who don't have Trump's resources, we don't do a very good job of that, and sometimes and I've seen it, certainly in his case, in my opinion that because of the notoriety of him and the fact that he's a former president.

Speaker 3: 7:19

There is a bending over backwards to make sure that the way he's treated doesn't somehow look unfair. Or, more importantly to Merrick Garland, I think, is the idea that it's not a politicized treatment. No one's talking about treating him unfairly like you know, mistreating him in jail or something. It's really the idea of what if it looks to people like we're targeting him politically? They'll lose faith in the system. So then on the gag order aspect of it. So it's interesting.

Speaker 3: 7:49

I've been writing about this some. You know the First Amendment is not really something like the Fourth Amendment rule against illegal search and seizure where there's a remedy like OK, cops didn't have a warrant, we're going to suppress the evidence. It doesn't really happen with the First Amendment. If Trump had a gag order imposed on him that he said oh, this is, you're violating my First Amendment rights, it goes up to Supreme Court. They agree that won't affect his criminal trial in the sense of oh, we're going to overturn the conviction because there's a gag order on you. So in that way it's quite different and I think there is a lot of respect.

Speaker 3: 8:24

Ironically, given his criticisms of the gag orders, there's an enormous amount of respect paid to the fact that he's running for president, because in a normal situation, where he's not a political candidate or something like that, there's no way judges will tolerate this kind of speech directed towards witnesses, prosecutors, of speech directed towards witnesses, prosecutors frankly, they probably wouldn't tolerate it towards the judges themselves either. Right, because that's part of respecting the integrity of the institution. I think both the judges and prosecutors here have been a little bit macho. Like okay, you didn't get to say what they want about us, not my family, not the witnesses. That's fine, they have security, but it does hurt the overall integrity of the system when someone like Trump, with such a huge platform, gets out there every day and says you know, this judge is the lousiest judge in history. He's totally crooked. This is a joke. That does not help the sort of system of people believing in the integrity of the system, so that's kind of my two long-winded answers to that.

Speaker 2: 9:27

Does this you mentioned? Sometimes it looks like the judges, for example, are being a little bit macho, where they're kind of acting to protect their family, but not necessarily themselves. Does that run the risk of setting a dangerous standard in this country when, when people are watching day in and day out wow, I didn't know, you could actually speak to or treat a judge like this and not really have it be a catastrophic deal? Is that a risk?

Speaker 3: 10:03

I think it is a risk. I think there's already a lot of loss of faith in the criminal justice system and the court system generally, if you take it all the way up to the top. I mean there's a tremendous loss of faith in the United States Supreme Court right now, and when the general public sees that it's okay to say these things about the courts, to say it about the judges, it really hurts the respect for that system. I also think that two pieces in addition there is a bigger risk of violence these days. I mean there's been a lot of swatting that's gone on with prosecutors, with judges. That's very dangerous. And then the other aspect of it which I think the judges and prosecutors are missing at this point in that sort of macho attitude.

Speaker 3: 10:52

When Trump says that it does taint the jury pool, I mean there's all these people out there across the country listening to him saying this is a bogus joke. We shouldn't even be participating in that. That factors into how hard it is to find people that are going to be open-minded about the case and, you know, be fair and listen to the judge, because if you're sitting there kind of thinking, well you know, this judge may be a complete joke. Why should I really listen to them? That's a problem. And also witnesses, I think, are more intimidated by this because it's like wow, wow, they can say that about the judge. You know what happens if I come forward. I mean, lord knows what they can say about me or do to me.

Speaker 2: 11:28

So I think overall it really does hurt the system it would be fair to say that it it one of the ways that it hurts is that those things, once said or done, they can't be unseen. They can't be unseen, they can't be unheard, which, as just an observer of courtroom tactics, one thing that I've always noticed, especially with a defense attorney. In certain situations they may ask a question or say something that they know is going to be overruled, something that they know is going to be overruled, but before it's overruled, the jury has heard the question and can't unhear the question. So is there some of that tactic in Trump's? In other words, he knows some of the things that he says or does are going to be pushed back on, or etc. But that the only important thing is that they are heard, no matter what happens after that.

Speaker 3: 12:33

I think you're exactly right. When Trump says these things, he knows it can't be unheard by that jury pool and that's why there's a big problem with tainting it. Interesting your example of being in the courtroom, it's going to be a little bit more controlled him as not doing good legal work. I think it's more a question of they're just doing what he wants them to do. They're being pushed to take positions that don't have much legal merit and saying things that some of them have previously good reputations and they're really looking bad at the moment.

Speaker 3: 13:22

If they do say something really outrageous in front of the jury, versus just when the jury's not there, or if trump says something, there is the possibility of a mistrial where the judge says look, you know, this is just so outrageous, this was said in front of the jury mistrial, we're going to do it again. That could inure the trump's benefit in terms of wanting a delay, and I've had some cases where you get a defendant who is really out of control that way and they're trying to say something to goad the judge into declaring the mistrial. So that is something that you have to be aware of. So far, I'd say, in the New York trial, mershon seems like a very experienced master of the courtroom, so I don't think the chances of that are too high but that is something to keep in mind too.

Speaker 2: 14:12

You bring up a good point, so let me ask you, when you go into a courtroom either when you went in as a prosecutor or as a criminal defense lawyer how important is the judge in terms of? I can't help but think there are times where attorneys go in and they go, oh we got this guy. Or other times they go, hey, I feel pretty good about this judge. How important is that the judge is?

Speaker 3: 14:39

really, really important for a jury trial, really important for a jury trial, not only in terms of the pre-trial legal motions that could really help or eviscerate your case. If the judge rules, there's all sorts of things you can't get into evidence bad rulings as a prosecutor, for example, you always worry about getting a judge who is too favorable to the prosecution if they're making legal mistakes, and so then you're selling your record with error. You may get a slam-dunk conviction, but it's pretty likely to be overturned, which is a big problem to have to start all over again. So a judge who's sloppy that way either really pro your case or really against your case has a huge effect on it. There is a point, a line at which the judge's influence ceases, which is when it really goes to the jury.

Speaker 3: 15:33

Judge can't really touch them too much. I mean that factual determination, the credibility of witnesses hard for the judge to influence. That they can sometimes and lawyers will say this to the judge sometimes if the judge is being very disparaging towards a lawyer or they act like they don't like a witness. That can translate to the jury because they look up to the judge. The judge is like the parent figure in the room. They depend on the judge for lunch, so they want to stay on their good side and they take a lot of cues from the judge. But I've seen many trials where the judge seems very against a particular witness or in favor of defendant. It doesn't work out that way because at the end of the day, it really is the jury that makes those factual determinations, which is what the case is all about. So they are a huge influence. I think it's important to realize there's a point at which they can't influence the case anymore.

Speaker 2: 16:26

If you were to put your prosecutor hat back on and let's say right now you were special counsel instead of Jack Smith, how is it, or how painful is it rather, for you to thinking through the lens of a prosecutor, to watch what Judge Cannon is doing and how that's playing out to the advantage of Donald Trump Right?

Speaker 3: 16:53

Well, the first thing I feel as Jack Smith, I'd be really frustrated that wasn't appointed a lot earlier. That's my biggest concern. Cannon is actually a great example of what we were just talking about, which is where, before trial, I don't think we have a trial date yet uh, her influence at this point is just ginormous. Uh, I mean, she's done some very odd things, including way back when appointing the special master, which just made no sense at all. No one ever seen that before, uh, and you know she got struck down for that quickly by the court of Appeals. It could be a combination of inexperience, it could be biased, but the end result is she's really bollocksing up the case. At this point it's kind of ground to a halt. Every single issue that gets raised, she kind of does a hearing about it. She's unable to just sort of like march through the issues that are raised. So it's a very frustrating situation and particularly online, we see a lot of calls like oh, come on, jack Smith, let's just get rid of her. Move to the qualifier. That's not such an easy choice for Smith as a prosecutor to make, because it's not like if first of all, a lot of delay in trying to get rid of her. You got to litigate that, go to court of bills et cetera. If you succeed, it's not like suddenly the case like snaps into you know, 100%, full speed ahead, new judge. They have to get up to speed on it. There's classified documents, issues, so no matter what, at this point she's a huge impediment to moving it forward and Smith has to be.

Speaker 3: 18:26

I think at this point she's a huge impediment to moving it forward and Smith has to be. I think at this point they're no longer concerned with staying on her good side, meaning being cordial because they've said some things that by federal prosecutor, white collar standards are pretty, you know, poking in the eye towards her. They don't really care about that at the moment, but strategically they just don't have that many options. I mean some of the real legal and leads things they could do. There's obviously they can move to disqualify.

Speaker 3: 18:49

They could see, seek the writ of mandamus, which is to say, look, this thing you did is just like so wacko, you're not even doing your job. So we're going to have the 11th Circuit order you to do this. They could do motions in the lemonade, which is kind of what you and I were talking about before, which is ahead of time. We don't want this defense in the case Judge Rule on it. Now we're going to exclude this kind of evidence. So there's a lot of things that they could do, and I think they have to weigh all those different kinds of tactics at the moment. So it's a very, very frustrating situation for them, I'm sure.

Speaker 3: 19:30

And like you said, with each of those actions comes more time, which is the whole point on. Trump's strategy is to delay and keep delaying. Yeah, that's exactly right, and I think I mean way back when, when the classified documents case first emerged. One of the things I said early on was look, this is going to be very hard to get to trial before the election, given the timing, and I sort of said I could get this case delayed in my sleep. Well, they don't have to delay it in their sleep. I mean, the judges helped them enormously on this.

Speaker 3: 19:51

I think it's very, very hard for that to get in shape to go to trial before the kind of red zone of the election, and part of that is just I hate to go back to beating this horse, but I mean DOJ could have moved on that a lot faster too. I mean it's pretty obvious what was happening with the documents. They weren't giving them back. This whole runaround going on there and classified documents cases are very, very tricky territory because the government's always worried about what may be disclosed during the trial. That's why you don't see a lot of those kinds of cases, or even espionage cases, going to trial, because the defendant there, the accused, has a lot of leverage and a lot of times they just want to cut a deal to keep evidence from being exposed here. So it was a complex case to begin with, and starting late having Judge Cannon makes it almost really impossible, I'd say, for it to get to trial before the election.

Speaker 2: 20:42

Let's talk about Merrick Garland and the time between when all of this took place and the appointment of special counsel Jack Smith. I think you would agree with me that having waited that long at the very least, that long at the very least, was fertilizer for all kinds of conspiracy theories in terms of why, as much as we can get to the heart of the matter or the truth and again I say as close as we can get, because I don't know that we can at this moment get to the actual truth why do you think, both as an attorney and just as a US citizen, that it took so long for Merrick Garland to move on this?

Speaker 3: 21:40

I think it's very much because he is what we call an institutionalist and that he justifiably so was very concerned with DOJ's standing, its internal integrity. After Barr was AG when really I mean today, like many situations with Trump we look at Barr and go, oh, you know, some of the things he did were OK, he was more legit, but he was very, terribly partisan I mean very, very corrupted that way and did not have good integrity as an attorney general. I think Merrick Garland was very concerned about that. Garland once held the position I held for Reno. He was counsel at one point before he went on to other positions there. I think he had a very strong sense of the department's history, wanting to restore that. His deputy, his number two, lisa Monaco, also worked with me when we were council of Reno at that time. She spent pretty much her entire career in DOJ. So these are two people who have enormous influence on DOJ and were very, very concerned with restoring the integrity of the institution.

Speaker 3: 22:52

Now you add that to the fact that Garland had been an appellate judge really for most of his career, his time as a prosecutor was really marked by the Oklahoma City bombing which he kind of was overseeing a lot of that very, very different investigation, obviously violent, but if that's your kind of base point, it's a very traditional way to approach it literally ground up, let's start interviewing people, let's find who was there, let's leave no stone unturned. That's what you see, the department did with January 6th. They used the traditional approach of hey, there's a bunch of violent people here when in there they attacked people, we're going to start with them. There are hundreds, so good job to find all of them. But we're going to start from the ground up and work our way up.

Speaker 3: 23:47

Going to start from the ground up and work our way up, that's fine, but this was a situation where you couldn't really do it that way and have this timing issue about Trump. I mean, granted, they never faced a situation like that before, but it was obvious from the get-go that wasn't going to work. If you did it that way, you really need to kind of like two parallel tracks let's get the violent people, let's go after the people who are doing the election fraud stuff, and by focusing all those resources first on the violent part, they lost that window. Merrick Garland may have been doing a lot of hand-wringing like should we go after Trump, shouldn't we? I don't know. He's not scared of going after Trump. What he was scared about was making the department look bad and wanting to make sure that they left no stone unturned. And in this scenario of the DOJ, I often wonder okay, who does he take input from?

Speaker 2: 24:55

Are there moments where they go into a conference room and he goes around the table and says, okay, let me hear your input, let me hear your perspective, and then factors all of that in. Or is he kind of a singular force who, as you said, is just kind of stuck on restoring integrity and what anybody else has to say isn't necessarily a factor? Well, he's both.

Speaker 3: 25:26

But one thing I think would be good for people to know who haven't worked at the department is DOJ is an enormous bureaucracy. It's just when I started as counsel to Ms Reno. I'd been a line prosecutor. I'd run some fairly big investigations. But when I got there what they told me was hey, you're going to spend your first month just learning acronyms and there are just so many divisions, so many shorthands for titles. They had this, the deputy of that. I give you a sort of a funny example For the deputy attorney general's office, the second tier people are called Associate Deputy Attorney Generals, and so that's a mouthful as you finally get up to the top in the Attorney General's office. One of the things that people down in the criminal division say oh, like, you're really cool to be counsel of the AG because you only have one title. You're just counsel of the Attorney General. There's so many other names and offices you have to keep in mind.

Speaker 3: 26:24

When I was there and it really hasn't changed much I've known a lot of people who've been officials there in councils. Your day is nothing but meetings. It's just constant meetings from the operational people tee it up through their supervisors and then eventually tee it up to what they call leadership levels the deputy attorney general, the attorney general and then the attorney general's people are looking to buffer the AG from having to make all these operational decisions. Because, frankly, many AGs I mean, what do they know about you know what should happen in that case? They can't personally direct it. I mean, there are hundreds of things going on, so it's this constant sort of like funneling upwards and all along the way people are trying to gather the information to tee it up for their principle which might be the head of the section, then the head of the division, all that going up there. So by the time Garland gets that information, it's been highly processed, highly filtered, and then comes the singular aspect. Then he as the attorney general has to apply his personal view to that. And people won't really override the AG. So you saw that with Barr. He's kind of like, you know, doing something weird with the Mueller report. People may talk about that but no one's going to say no, we're not doing that.

Speaker 3: 27:46

And there are some career people versus the political appointees and the good leaders and the good attorney generals always look to the career people because they think of them as kind of being the institutional history.

Speaker 3: 28:00

When I was there, there was a legendary guy named David Margolis and you know Reno would always turn to him and say, david, you know what do you think of this? Because he had the history of what had been done before Slight tangent, but that's what's notable about one of the things that the Trump administration wants to do in the past and if they get in power again, is to really get rid of that history. They don't want these career people. They want to be able to completely substitute their own political appointees, and that's very dangerous for the institution in terms of its wisdom and its knowledge. But for Garland, it's an enormous amount of information daily flowing up to him that's filtered and then he has to make his own decisions based on that if that is a better picture, and then he has to make his own decisions based on that, if that is a better picture.

Speaker 2: 28:46

If you had to guess and maybe you don't have to guess is there frustration within the DOJ at the other tiers about how this has been handled? What would be your hunch?

Speaker 3: 29:01

my hunch is that for the real operational people of like some of the fbi agents, I think early on at the us attorney's office in dc there probably was frustration at the pace of going after the sort of thinkers, the masterminds behind the election fraud aspect. Um, overall I think morale in the department is probably pretty good because they've been able to kind of restore the normal thing. They're doing other things. There's antitrust issues going on, there's civil rights prosecutions going on. Garland is very devoted to civil rights issues. Really kind of moves him personally. I think overall they feel like, yeah, you know, we're doing the right things again and it's only this one particular area, the special counsel area, that's really going after Trump.

Speaker 3: 29:51

I think there may be a feeling of people who've been around that if we don't succeed and Trump actually evades this, then there is a big danger that he actually gets elected and then everything's just going to get cut out and justice won't be done. But I would say overall morale has probably kind of improved at this point. I do remember when Holder became attorney general that he came back after giving the big speech back to the DOJ courtyard and the kind of joke was it was like the allies liberating Paris or something. Everyone was like hang out the windows waving, like oh, we have like a real AG back. So I think overall they're probably doing okay, but I think there is a lot of worry about this pace.

Speaker 2: 30:37

Are there Trump holdovers in the DOJ currently?

Speaker 3: 30:41

Yeah, there are some. I mean obviously very notable ones would be like the US attorney who was running the Hunter Biden thing. I mean it was a very deliberate choice to keep him over. So there are some notable old-overs there, yeah.

Speaker 2: 30:57

How detrimental is that or could that be, if they are real dedicated MAGA mindset Trump fans?

Speaker 3: 31:08

I think it can be pretty detrimental. There is some damage control because the overall structure would stop them from bringing like really egregious, erroneous cases that are more like vindictive targeting people. I do think looking at the hunter biden example is you get some examples of uh, illustrations of what can go wrong with that. Uh, there's no way that case can take this long to conclude, I mean, you can't be investigating something for like a half decade and this is what you have to show for it. You know, my joke is it's being to cannibalize itself. They're starting to turn on their own informants to process, prosecute them.

Speaker 3: 31:48

That I have to blame garland for that, because he did not need to elevate him to a special counsel status and once you give him the special counsel status, even further insulates them, because now the department is much more loath to say hey, you know, this is not a good idea, don't do this, because they're worried. That looks like there's interference. Same thing with when they appointed Robert Herr to be the special counsel. Looking at the Biden retention of documents issue there. You know he's obviously full card carrying conservative Republican. Sure, why did you appoint him? And he does do damage because even though he came out on the right side. There's nothing criminal there. Everybody knew that. He still wrote that very carefully in a way that it could be used politically against Biden to ding him, and that's the sort of danger that you have of leaving folks like that there or putting them back in that position.

Speaker 2: 32:45

As an attorney, is it as obvious or seemingly obvious to you as it is to someone like me who's not an attorney, that this was a political hit job on Hunter Biden? Based on what you've seen, yeah, yeah, yeah, it absolutely.

Speaker 3: 33:09

It's not only a political hit job, but as a prosecutor it's very unprofessional. Because if you drill down a bit on what happened, the defense Biden's defense lawyers and the prosecutors reached this agreement, which was pretty normal for those kinds of offenses I mean that sort of possession gun charge thing, tax offenses that he'd already paid back. The guy has a demonstrated drug problem. He's not fighting the charges like ready to come in and plead guilty. Plea deals do sometimes fall apart, but usually it's because the defendant's saying no, I actually didn't do that. That's why they fall apart here.

Speaker 3: 33:38

It fell apart because they hadn't done their homework. They hadn't really gotten to the bottom like hey, you know what's really covered here. Can we still investigate him, charge him for other things? And his lawyers probably understood that that was kind of vague, but that helps them. They'd rather just get the deal done and deal with it later. And instead the judge kind of blew it up by saying, hey, why haven't you asked these questions? Okay, that happens. They should have simply gone back, negotiated with Biden's attorneys and gotten the thing wrapped up. Instead they seem to take almost a very punitive aspect, which was okay. Now we're going to charge you for everything. That's the hammer you have as the prosecutor, but you don't usually do that because it looks really bad Like what changed about the case? You're willing to offer the guy diversion and now you want him to go to jail for 20 years. I mean, what really changed about the underlying crime there? So?

Speaker 2: 34:31

so that's why it really looks bad, um, for them doing that, and that's the political aspect of it that you really see and would would that be kind of a summary of so many things that we've seen the last few years is that there are just so many things that make the system look bad, that it's not just one rogue event, that there seems to be this pattern and that that's what people are concerned about. It seems like it's becoming an established pattern.

Speaker 3: 35:10

I think that's right and I think the last few years has been very much of a stress test on the court system, on the criminal justice system, on the Supreme Court, and a lot of the fractures that are showing have been there for a while.

Speaker 3: 35:19

They've been developing, but you don't really see them until you apply this kind of pressure to it, and I think that is hurting our democracy a lot.

Speaker 3: 35:29

And also, you know, most folks aren't even as up to speed as your viewers and listeners are, as we are, so all they generally may take away from this is wow, things are a real mess, can't really depend on the court system or prosecutors or police. It's just a mess. And what happens there is then people quit cooperating with the system. I mean, you see that a lot actually in immigrant neighborhoods my parents were political refugees from China and there's a basic distrust of the government because you've come from a place where the government could do bad things to you, and so there's a lot of talk about prosecutors doing community policing, cops doing that. The reason to do that is not only to protect people, but it gives them faith in participating in the system and that's what makes it safe for them, that's what makes it safe for all of us and when generally people are kind of just getting the impression like this just doesn't work that's a real problem.

Speaker 2: 36:26

You said something that really stood out to me. You said the stress fractures, the cracks, have been there for a long time. It's just that this series of events put the spotlight on them and kind of brought them to the forefront. Put the spotlight on them and kind of brought them to the forefront. My question is, having had that attention placed on those stress fractures, is it feasible to expect that we will see any changes made about how things are done, changes made about how things are done, or will the attitude be? Well, you know, this isn't something that happens all the time. This was just kind of that freak person, donald Trump, so we're not going to change anything structurally. Which way do you think that goes?

Speaker 3: 37:22

I think the momentum is towards the latter, which is don't change things structurally and because the politicians kind of just want to get past this. But I do think that these stresses that have been revealed, these fractures, they aren't going to like heal themselves, you know, unless someone actually comes in and does something about it. And some of those fractures are big enough and well-known enough now that I think ultimately something's going to change. For example, if you look at the Supreme Court right now, the fracture that was hidden was that the Federalist Society spent decades putting into the pipeline their hand-picked people so that eventually it floats up to Supreme Court. So it's not just Trump appointed these justices. It took a lot of work to get all those law students into those clerkships and finally move it up there.

Speaker 3: 38:16

That was a fracture that was kind of unnoticed, but now it's like really obvious to people. So where once people weren't interested in calling for judicial code of ethics for the high court, they weren't interested in maybe expanding the numbers of the court, putting some kind of term limits on there, now that's something that's much more in the mainstream to talk about and I do think that that's something that that's likely to change. But there certainly is a momentum just to say oh, this is just the one off. You know, don't worry about it, we'll get past it. But some of these fractures are so big that I think they won't be able to just be ignored anymore.

Speaker 2: 38:53

Good, I would have to imagine Well, in fact, I have imagined if if I was an attorney, one thing I would have been doing, especially if I'm a defense attorney. Over the last several years with Trump, I've been taking copious notes, I've been noting those stress fractures, those cracks, and I've also been noting how Trump and his legal team have been able to exploit those to Trump's advantage. Am I wrong to think that we will see more of in, maybe just in high profile cases or your wealthier clients? But do you think that's a possibility?

Speaker 3: 39:57

Oh, I think you're actually already seeing that in the Hunter Biden defense. His main defense counsel, abby Lowe, is very well known to be aggressive, combative, but if you look at what he's done, like marching into Congress and saying, hey, we're here telling the LJ to go pound sand, ok, let's try the case those are all things which in the past white collar lawyers didn't do, that too much because you're really trying to like negotiate, you know, don't hurt me, dlj. You know let's keep making the deal, as opposed to really pushing back and saying this is bogus, it's politicized. That's taking a page from the experience of watching what's Trump, what Trump has done, and I think it's actually working quite well. You also see it in the reluctance, or rather the stubbornness, of Senator Menendez refusing to cave into this. I mean, this case, you know, looks bad. He's innocent until proven guilty, but you know huge amount of evidence against him, but he's not even stepping down at this point and that's also part of seeing this fact that, oh, just because I'm a politician and they've got something on me, they're going to charge me, doesn't mean I need to fold, I can just keep fighting this the way Trump has done this.

Speaker 3: 41:05

So you're already seeing a lot of that in high profile cases. But you're so right, it's going to be more in the high profile cases because people who don't have those kinds of resources they got to fold, you know, and they're going to have public defenders Some of them are very skilled lawyers but who have huge volumes of cases. It's like, okay, you know, I'm not going to do this for you on public funding, spending hundreds of hours making these wacko arguments just to kind of keep prolonging this thing. They're going to be like look, that's not a viable defense, you know, we can just go to trial with it or you can plead guilty. So the folks who don't have that kind of power and leverage won't be able to benefit from that Just as an aside.

Speaker 2: 41:48

let's say somebody is in a situation where they are facing a criminal charge and they have no choice but to take a public defender If they lose, is one thing that is appealable. Even though they didn't have the money to afford a better lawyer, can they say hey look, I didn't have the money for that and the person you gave me was not experienced. They didn't have a good record, so I didn't receive good representation, because I don't see that happen a lot or I don't hear about it. Maybe it does with people who were represented by a public defender. So is that not really a strong appeal?

Speaker 3: 42:39

It can be a strong appeal. It's called a quote ineffective assistance of counsel claim. There are two obstacles to that. First, the general things that you mentioned, which are very true. Like this, person didn't have much experience they met with me once before the trial by itself, that won't do it. You actually have to point to specific errors that were made during the representation. For example, they never interviewed witnesses. There was DNA evidence. They never asked for it to be processed. You have to have very specific things to make that argument. So that's what makes it difficult. And the other part of that is for a non-lawyer, that's not easy to figure out. Sometimes, when your lawyer's just coming to you and telling you these things, you don't know what you should be asking for, and so that makes it very hard for those claims to be made. But but they are made.

Speaker 3: 43:37

And again, you tend to see that in more high profile cases maybe not the famous people like murder cases, sex assault cases, where DNA exonerates people later on and there is a lot of ineffective assistance of counsel you hear stories about, you know the lawyers who are falling asleep like Trump in the courtroom, and there are bad instances, and there are also many. I mean the DC Public Defender Service, where Judge Chutkin came from. You know she was there in my time. We went up against each other on some things. They were very legendary. They're very, very fierce advocates and just really, really good at what they do. But they were able to control their caseload. They picked and chose how many they took in. The bulk of the public defenders are done under the Criminal Justice Act and you're paid by voucher and those folks some of them are very good, but that can be much more luck of the draw who you get. So having bad representation to begin with also hurts your chances of appeal, because you don't know what to do on appeal. You don't know what to look for.

Speaker 2: 44:40

And I would assume the resources are a factor too. For example, a public defender in the county that I live in, the resources that they have available to fight a case are coming from the county and the county obviously has an upper limit, whereas as a white collar defense lawyer, your resources are really only limited by the ability of your client to pay for those resources. Is that a fairly accurate assessment?

Speaker 3: 45:16

Yes, absolutely. And like those folks I was talking about who work under the Criminal Justice Act, they have to submit vouchers to the court, and so you know, for the average drug sale, the court has some sense of how many hours you should put in. So if you do a bang up job and put in like a thousand hours on it, you're not going to get paid Right A thousand hours. So that's a very real restriction on just how much work people can put into.

Speaker 2: 45:42

That Absolutely Got you let's talk a minute about, because I see it all the time on social media. Talk a minute about, because I see it all the time on social media and I'm guilty of having thought and probably posted on this as well. Why doesn't someone like Judge Mershon just hit Trump hard right off the bat and say you know what? You're going to sit in jail for a week. We're going to lay the law down early on this. Can you tell us a little bit about his thinking and why that's not the approach that he or even another judge would take?

Speaker 3: 46:25

So I think there's an institutional side to that, which is the way judges are trained to think, and what they've seen in other judges is they're very concerned with looking like they are taking things too personally. They're being intemperate. A lot of talk about judicial temperament and they want to seem like I have a thick skin. I'm not going to react to these things, I'm just going to be very judicial about it. So you start with that premise versus someone who's really interested in, I'm going to enforce the rules here. You're not going to be doing this. They tend good judges tend not to start with that place. They're trying to be kind of more chill about the thing and keep everything very proper. The other issue for Mershon, for example, is if he right away says to Trump get in the back, that's going to create a huge sideshow there. I mean, his lawyer is going to try all sorts of things. Maybe they won't be successful. They'll try to get a stay. They'll go to the United lawyer is going to try all sorts of things. Maybe they won't be successful. He'll try to get a stay. They'll go to the United States Supreme Court, try and get a stay. It is going to result in some delays and energy being spent on the side. You're not going to be able to pick the jury while his lawyers are literally running around filing appeals saying we're going to the US Supreme Court. Stop, it's going to slow you down.

Speaker 3: 47:49

So there's a reason not to jump to that too quickly here and I think they're a little bit too concerned about the first part looking, you know, non-judicial. But there's good reason to want to avoid, for Marshawn right now, that fight at the moment and I think for him that fight at the moment and I think for him, his real strategy is let's get this show on the road. You know, I know I can get through picking this jury. He's moving so much faster than a lot of people were saying it would take. I'm not that surprised because this is Manhattan court.

Speaker 3: 48:23

People are used to just running through the jury selection. I think he wants to get through this. Let's get the trial started. And then, once Trump's in court each day, if he's still doing stuff which I can at that point legitimately say look, this is a problem. You got a jury in the box and you're saying these kinds of things can really affect the trial. Bragg's office has asked for a thousand dollars per whatever insult and that's fine because you can build a record that way. You know we've got 20 or 30 cases of this and I'm going to put you in the back for an afternoon if you keep doing that. So I think he's building the record that way. But most importantly is you don't want to take on that fight now, because it becomes a sideshow right in the beginning and stops you from getting to the trial.

Speaker 2: 49:06

Well, let's say, you put your prosecutor hat back on. Or now let's let's either one, I guess, prosecutor or defense lawyer In a case like this, where you know there's a possibility and you you have no idea to what extent that's possible. You know they're doing their very best to make sure this does not happen, but with a case like this, you go in there knowing that it's possible. Someone could have slipped through the cracks. Who has already determined before the first day of oral arguments that they are not going to vote to convict Donald Trump? As a prosecutor, do you have no choice but just to forge ahead like you would in any other situation, or are there things that you are thinking about throughout, strategies that you might be able to use to circumvent this? How do you play that there's?

Speaker 3: 50:10

not really a way to prevent that. I mean, one of my favorite older movies is Runaway Jury, which is all about that and the sort of plant in there and we are beginning to hear a lot about that. Now that we're at the jury selection part, there's just nothing that can really be done besides what you normally do. I mean, you're very experienced prosecutors and experienced defense counsel too. That's their courthouse. They're in there all the time. Judges are experienced. They just have to depend on their ability to sort of ferret out someone who's really that disingenuous of a person. And if it gets to that point, I mean that person would succeed. I mean, if they absolutely are some kind of an agent, you know basically, and they're going to be the holdout, that'll work. I mean they can get a hung jury on that point.

Speaker 2: 51:01

So part B of this question. Right. Part B is. It gets to that point, they succeed, there's an acquittal, but somewhere down the road it has been determined and there is evidence, some kind of testimony to the fact that this person, this juror, was a plant and they did know going into it that they weren't going to vote to convict Trump. Is there legal recourse for the prosecution at that point in time?

Speaker 3: 51:34

Pretty hard to do anything against that juror, although let's say they lied about something in the court, you could go after them for that. Here's the thing. It's much more likely that it would be a hung jury than the acquittal in that scenario that we're speculating about. So the loan holdout, the jury would be like okay, you know, judge, we can't be unanimous. You know this jackass is refusing to go along. That does happen all the time. Judge keeps sending them back saying you know, you got to work on this, and finally they just give up and they declare mistrial. It's not an acquittal, mistrial is a hung jury. Obviously there the prosecution can go at it again. If that juror were to convince other people to go along with them as acquittal, that just game over.

Speaker 2: 52:19

There's no recourse period besides looking for other charges and that was my next question if, if, if they're holding out can persuade at least one other person, then it's game over.

Speaker 3: 52:34

Yeah, but again they need to vote unanimously for the acquittal too. I mean, if they're just stuck, it's like I forget how many they have there, but it's like an 8-2 kind of thing it's still going to be a hung jury. It's not going to be the outright acquittal. They still have to be unanimous on that. Be a hung jury, it's not going to be the outright acquittal.

Speaker 2: 52:51

They still have to be unanimous on on that, so they've got to hold out long enough to where the other ones just say, oh the hell with it, I want to get my kids, exactly, exactly, okay, um, here's, here's. This has been talked about, I think from the very beginning. You hear and see a lot of information on you know what Trump will never actually go to prison because of the complexities of the Secret Service and that whole circus. Is that necessarily true that he would never go to an actual prison? I mean, I think we can acknowledge that that's a possibility, that there would be some other type of confinement, but is it necessarily set in stone that he would never go to an actual prison?

Speaker 3: 53:40

I don't think so at all because, okay, obviously no one's confronted this scenario. Secret Service hasn't had to deal with that. But the idea that if he's in a, I mean he would probably go to a minimum security prison it's not like you know Supermax or something the idea that you know they have to be in the cell with him, or something, it's just silly. I mean, obviously they have prison guards who are meant to make sure the prisoner is safe. They'd be in the same position. You could have a Secret Service agent stationed wherever he is. They don't have to literally be going to the bathroom with him being in his cell. I mean it's just kind of silly that they make it sound like that. And nor is the Secret Service so independent that they'd be like, hey, you're not taking our man. It's not like that. I mean there's their government agency, they have to answer. I think they're under Homeland Security these days. They still have to do what their director says.

Speaker 3: 54:33

And if he's going to jail, well, yeah, we're going to make arrangements to make sure that he's protected there. But I don't think that's just like up for all the conferences of the bench. He wants to be interviewing the jurors and the judge says look, it's a little bit impractical here, because if you're going to have, you know, three or four Secret Service people, we're all standing at the bench. We have to vacate the room. But these are logistical issues, it's not like a set in stone thing. It just can't ever be done.

Speaker 2: 55:05

Do you think this scenario is something that the DOJ has been thinking about and has been trying to strategize and figure out? Okay, so let's say we get a conviction and he's going to be confined for a long period of time. How do we do that? A long period of time, how do we do that? Or, as crazy as it sounds, is there the possibility that we get to the point of conviction and then the Department of Justice is saying, oh okay, we better figure something out about how we're going to do this?

Speaker 3: 55:43

I think there's probably been some discussion with the Bureau of Prisons about. You know if that scenario happened. You know, what do you guys say about that? I don't think they're really factoring that in. I think much more so on their minds were how does it look when we bring the case, rather than what kind of sentence are we going to advocate for? And obviously, how heavy of a sentence depends on which charge he gets convicted of. So I think generally this goes back to the fact that this is a really big bureaucracy. I think it goes back to the idea like if we get to that point we're focused on what sentence we ask for. We're going to let the Bureau of Prisons figure out the logistics with Homeland Security and the Secret Service about that. So I don't think they're worried about that aspect.

Speaker 2: 56:34

Okay, winding down here with my last question for you. One complaint many people have had, myself included, is that we've not seen anything at the upper tier of January 6th planners and people of that nature. Let's say, president Biden gets elected to a second term and Democrats take control of the House Do you think that changes the calculus? Do we start seeing those upper tier people getting indicted and prosecuted at that point?

Speaker 3: 57:13

I think you're going to see the Fulton County case be able to move forward then with less impediment. If Trump were president, obviously a lot of impediments to that, even though there's no actual legal amendment to it. That's the only case so far that has really wrapped in some of the higher ups and that will go forward Unless there's a different attorney general. I think there's not going to be a high appetite for DOJ to want to do new cases to get those higher ups. I think there's going to be.

Speaker 3: 57:49

I don't like this, but I think the trend is going to be to kind of put that in the past Trump has lost and if we got some convictions on him we did the right thing. There's not going to be a lot of appetite to start going after some other people Now. Interestingly, I think you're seeing a lot of the consequences coming from other places, like the lawyer associations, the bar associations, the disbarment proceedings against John Eastman, against Rudy Giuliani. You're seeing that sort of professional civic association start to put forward some of those consequences here and I think that's great. That's a really important part of our fabric of society.

Speaker 2: 58:34

But I don't think DLJ will have too much appetite for going after those folks, and my gut tells me that with a second Biden term we probably will not see President Biden replacing Merrick Garland. How do you feel about how that plays?

Speaker 3: 58:53

out. I think you're exactly right on that. Biden's not going to want to do that because he's not going to want it seen as anything. I've been hands-off on this stuff. We'll continue to be hands-off on it. There could be some internal pressures that might cause Garland to say I had enough of this. Maybe you'll appoint me a Supreme Court now something like that, but it could get aging out on that point.

Speaker 3: 59:17

But I think you're right. Politically I think they would be so pleased with having won the election and if Trump has gone down on some convictions, they're going to be like see, we did the right thing, we were hands off on this, we've let justice run this course. I kind of doubt it would be replaced.

Speaker 2: 59:32

And in terms of historical legacy 50 years from now? What does that do with how this time frame is perceived to have it include that we had all of these top-tier people who were never even investigated in some cases, let alone indicted or prosecuted. How do you think history will paint that?

Speaker 3: 59:59

I think that really depends on whether Trump. We're assuming that Biden wins. So I think it really depends on whether Trump's convicted of anything. If he's convicted of something, I think history looks at this and says, oh, got through this difficult period, he was held accountable, the election was fine this time around. And it's going to be a footnote that these co-conspirators, these masterminds, kind of didn't get much criminal consequence besides things like losing their bar license, which is significant for the lawyers but they didn't really get prosecuted. I think that's going to end up being a footnote. So if Trump's not convicted I think that changes history a little bit Then the view is going to be hey, something went wrong here.

Speaker 2: 1:00:47

I want to thank you, shan, for taking time out of your day to answer some of these questions that I know the average person has. You know it's so easy to get caught up in that being an armchair lawyer, you know you see something happen and if I was, I'd do this, or why don't they do this? Something happen and if I was I'd do this, or why don't they do this. And while that can, I think can be healthy to an extent to just kind of vent your frustrations, the danger, I think, is when we take our own interpretation as the way it should actually be happening and then things get all muddled, and so, to the degree that people can understand what can actually be done and can't and some of the reasons why those things are or are not done, I think it helps the psychological and the emotional and the mental makeup of the people who are the audience to this series of events. So I think you've done a super job of clearing up. I know you cleared up some things for me and know that will be true of anybody who watches or listens somewhere down the road. I'd love to have you back sometime and we'll answer some more questions. So thank you, shan and I'll be talking to you soon. You're welcome. Good to be here. Have a good day you too.

Speaker 2: 1:02:19

All right, I hope you enjoyed this episode of the Jack Hopkins show podcast as much as I did. You know, I think you can tell by listening to Shan answer those questions and just watching him that if you were in a legal fix, shan is the kind of guy that you want helping you navigate through the storm. He's got that even keeled demeanor and just that calm focus. That is really one of the first things anybody wants to see in their attorney when they've got a serious, pressing matter. I know Shan answered a lot of the questions that I had regarding Donald Trump and his legal woes, and Shan has agreed in the future, as these trials move forward, to come back on and do another episode on Jack Hopkin Show Podcast. So until then, take everything in from this one and don't forget check out Shan at Twitter, or X, as it's now called, at Shanalin Woo, and also check out his website at ShanalinWoocom. And don't forget to check out my newsletter at jackhopkinsnowcom. Thanks for tuning in and I'll see you next time.