Yeah.

Welcome to the Air Harbor show.

This is part one of our special two part series with former United States Attorney General Alberto Gonzales.

Mr.

Attorney General, thank you for joining me.

Thanks for having me.

Hey, it's a pleasure.

You've had an extraordinary career.

I mean, you were a Supreme Court justice in Texas.

Of course, the US attorney general, white House counsel, among other things.

And you were also the former Texas secretary of state?

Yes, I was.

I just be interested in your take on the state of justice in America today.

Where do you think we are?

What could we do to do to to really do better?

In terms of a more just fair, and maybe accurate system, just your thoughts on those kinds of issues.

I think one of the things that makes America, America is the rule of law without the rule of law.

I don't believe you have a democracy, and I don't believe you have in America.

So that's very important.

And the Department of Justice and lawyers generally have a responsibility to protect the rule of law.

And, it's under some stress, quite frankly, from time to time.

And, it's up to I've, from my perspective, lawyers to step u and make sure that, that which makes America so special remain so for future generations.

So it's been an honor as a lawyer to, participate in that, in that endeavor.

And I've had the opportunity to do so in some very unique ways.

And, I'm just grateful that, I could do my part to make Keep America Strong.

What would you like Americans to kno about the Department of Justice?

In terms of what it really does?

Because I think most people, you know, you may see the attorney general on televisio or hear about a particular case, but I don't think most peopl know much about the department.

There are about 115,000, give or take, employees at work in the department.

And, less than 1% are political appointees.

The remainder, over 99%, are career employees.

They go to work day in, day out without regard to who's the president.

They don't have an agenda.

They may have a personal agenda.

Hopefully they keep that personal agenda at home, but they go in to do the work of the department.

They care very much about the department.

One, U.S.

attorney once told me when I was attorney general, gave me some advice about my role as the attorney general vis-a-vis the department, he said.

He said, general, the castle is the Department of Justice and the career employees.

You are the moat to protect the department.

And I've never forgotten that.

You really as a a the attorney general, to have a you have a special responsibility to look out for those folks who are really giving their careers, trying to protect the American people and protect the rule of law.

What about the relationship between, the Department and the white House, where the white House is clearly, a political, which is expected and normal.

And, I think a lot of people are under the impression that the Department of Justice serves as not just at the pleasur of the white House, but that it really is the, almost an extension of the white House counsel.

Yet that's not really the correct perception as far as I'm concerned.

The attorney general wears two hats, which is unique from other cabinet officials.

On the one hand, you ar part of the president's cabinet, and the president is elected by the American people on certain, policy priorities, including law enforcement policy priorities.

And so your job as the attorney general is to help the president be attentive to the wants of the American people.

The other hats you wear you're the chief investigator.

You're the chief prosecutor there.

You have to be separate from the white House.

And keeping politics out of decisions regarding investigations and prosecutions is vitally important because, to the extent that that there's even a whiff of politics in term of the work of the department, it undermines the, the confidence of the American people and the integrit of the work of the department.

So there is clearly, conversations and relationships with respect to policy budgets, things of that nature.

Communications between the white House and the Department of Justice.

But investigations and on prosecutions, those communications are very, very limited.

Typically it's the white House counsel or the chief of staff of the white House having communications with the, attorney genera or the deputy attorney general, maybe sometimes the Office of Legal Counsel, which is the departmen within the Department of Justice that, has the institutional memory of the executive branch, has all the opinions, previous opinions of the, with respect to the executive branch of what the law allows the executive to do.

So it's a it's a unique relationship.

And I think people lose sight of the fact that it should be unique and hopefully it remains unique in order for the American public to have confidence in the work of the department.

Well, and certainly there ar some presidents who think that the Department of Justice should be be meeting their needs, over, over any other, how is that separation actually maintained?

And, and what happens whe you have a challenge like that or, it even goes to an extent where a president appoints an attorney genera who is not just complicit, but very much on board with doing, presidents, bidding.

Some people believe that the United States is is the Supreme Court of executive branch, an that he decides what is the law.

It doesn't rely upo his attorney general, does not rely upon his white House counsel.

He decides what is lawful.

And others within the the white House and the entir executive branch to follow it.

What what his belief is that's not the traditional way that works in the executive branch.

Oftentimes the president is not even a lawyer.

And so therefore, having th advice of a white House counsel, the attorney general, the deputy attorney general, general counsel to the very agencies is all to support the president, to make sure the president, makes decisions consistent with, with with the law.

So it's, the danger, of course, is it if the president is talking to people within the Department of Justice, particularly line prosecutors, about an ongoing case, it's as if he's putting his thumb on the investigation, putting his thumb o on the outcome of a prosecution.

And I think that that is dangerous and does undermine confidence in the American people, in our justice system.

They need to know that that if they have a case before the depart, the United States of America, that they're going to get due process, they're going to enjoy all the rights that we all expect to have, as a litigan in our criminal justice system.

So this is something that's very, very important.

And, every attorney general, I think has a special obligation to ensure that separation.

And just becaus you're close to the president, RFK was the brother of, John Kennedy.

I was very close to George Bush.

And I'm asked sometimes whether or not.

Is that an issue?

It can be an issue because of the perception that you're going to do exactly what the president wants.

But it also can be a big plus in that the president has a confidence in me when I tell him, Mr.

President, you shouldn't do this or you can't do this.

He'll respect that more if he knows me.

And trust me.

And additionally, the agencies in the executive branch, they know I'm close to the president.

And if I tell them they can't do that, they know they can't run to the white House and try to get a different answer.

They know that because of my relationship, I have the final word.

So it can be a big benefit.

But you have to be very careful about the appearance of, you know, that the president can rule over the attorney general.

And, but it's been done before, and I think it worked well under the Bush administration.

You mentioned in terms of how, the public perceives the integrity of the legal system and the fairness.

Certainly, in our legal system, if, a party has exper berths and financial resources, they're at a huge advantage, in our legal system going to court.

How do we make our legal system make the process more fair, more equitable?

I would say that we have one of the finest criminal justice systems in the world.

And I have observed many, in the world.

It's not perfect.

And you're right.

One of the things that, is a challenge is ensuring that those who have limited resources, have access to legal representation, that that is extremely important.

I think the American Bar Association, local ba association, is very cognizant of the need to make some of their time available pro bono to, people that don't have the resources to pay for their, legal legal services.

So that is, I think lawyers have an obligation to ensure that we do what we can to address the problem you've just identified.

And I think that that's the way that our system should work.

And I think for the most part, it has worked that way.

It's not perfect, no question about it.

But I think we have a good system.

I would guess the genera public feels that it is uneven.

It is.

Is there anything that, the people who constitute the system, whether it be judges, whether it be attorneys, when you look at, you know, if you have, you know, 300 cases, it's going to be difficult to represent someone.

Well, that not only does tha not seem to be getting better, but with resources progressively even more limited, there seems to be, a real potential.

And actually, I'm sur it happens where people aren't well represented.

One of the things that fascinates me in the system is that the vast majority and some cases, you know 95% of cases get plea bargain.

And you have peopl who have been accused of crimes who may not have committed those crimes, but who don't have the resources to defend themselves and end up agreeing to a plea bargain without really understandin what the long term implications may be of having been convicted of certain crimes.

Yeah I think that there are many bar local bar associations, and certainly at the federal level.

And Congress can be very helpful in that they fund the legal Services Corporation which provides legal services.

And so one thing we can do i try to put pressure on Congress to make more money available.

I sometimes a to maybe sign on to a lette to Congress saying, please fund the Legal Services Corporatio because it is a way to provide legal services to to those that don't have it.

And it is.

You're right.

It is shocking how many people, particularly people that are poor, that cannot afford to take the chance.

They don't.

First of all, they can't afford to take time off of work, and they can't afford to take the chance that they're going to be found guilty, even though they may be innocent.

And an enormous amount of people, particularly those of, limited resources, they do plead guilty.

And that is a problem.

There's no question about it.

I'm not sur that I can give you the solution or an answer, but I do know the American Bar Association.

And with my colleague at Belmont, they're really our focus on this problem to see what can be done to make a difference.

So one of the issues in terms of prosecutorial discretion is that, you know, whether or not, a decision is made, you know, is it popular?

Is it the right decision?

And the objections to that decision that, a prosecutor has decided not to proceed with a case that the public thinks they should proceed with?

Well, but the public may may think that, but the prosecutor may believe I can't make this case, or it's going to be it's going to be very, very expensive.

And that perhaps is better in the long run in the interest of justice to pursue a plea of something less.

But it is very important from my perspective, the prosecutors have the discretio to make those kind of decisions where I think there's a province where a prosecutor makes it public pronouncement, we're not going to prosecute certain kinds of cases, say, shoplifting in New York City.

If you shoplift for something less than $200, we're just not going to prosecute.

Well, that's just just going to invite shoplifting.

I don't have a problem.

If the prosecutor, the Da, tells the rest of the office, listen, we have limited resources.

This is how we're going to prioritize prosecutions.

We're not going to announce it, but we're going to deal with these kind of cases first murders, things like that.

And then if we have enough resources and time, we'll deal with the other stuff.

But I think that's a better way to protect, prosecute discretion and also respect the fact that certain offices don't have the resources to prosecute shoplifters, you know, less than $200.

So that prosecutorial discretion is something that I've had conversations with recently about this, because they're worried about the fac that people and more authority, will somehow limit their discretion.

One thing that fascinates and kind of disappoints me, and I'd like your take on, is the number of people incarcerated in the United States that we have roughly 2 million people in prisons, jails, in our country.

And that represents an averag of almost a quarter of the total populatio incarcerated around the world.

No country has as many people in prisons and jails as as we do.

And we're about roughly 4% of the world population.

So we have, you know, six almost seven times proportionately.

Is is is a function of the fact that Americans are just really bad people or what's going on.

Probably not the fact that America's Americans are really bad people.

It is a system that really can't sustain itself.

It's just it's so expensive to build prisons and we have prison overcrowding.

And I think there are a lot of studies ongoing today about what is a better system.

The current system just isn't going to work.

It's too expensive and doesn't really make any sense.

We just have bette prosecutors are more successful in putting people in jail or prison.

We jus need to, I think, have a system where you can really take into account the circumstances of the individual before you.

I mean, is this person really a danger to society?

This is person that really need this job.

Can we be comfortable that this is a one time lapse of judgment by this person?

So we had more time, perhaps, to dea with individual circumstances.

I think it may make a difference in terms of how the prosecutor decides to deal with people.

Local elected prosecutors have the problem of appearing to be soft on crime, though, when they exercise of discretion in that way.

And that's a challenge as well in terms of educating the general public, that sometimes it's not smart to lock up of everybody.

It's too expensive and we just don't have the space.

And so, prosecutors take a risk that when they do exercise discretion, that if they don't do a good job explaining what's going on, the local community will consider that they're soft on crime and they may, you know, not support the election of that prosecutor in the future.

So it's it requires som education of the general public.

How do we address the issue of recidivism, you know, which I think is clearly part of the solutio to what you just discussed, that if someone is convicted, serves their time.

How do we do a better job o of making sure they're not back in six months or a year?

I think it's importan that while they're incarcerated, they receive some level of additional education and some level of training skills.

So that and then of course, when, when their time is up that when they get out of prison or get out of jail, there is some kind of support system to sustain them, a place to live, a place to work?

Those are all very, very important because without that, they will they will offend again.

And so that that's that would be my recommendation how to deal with that.

Another issue that, concerns me is judicial safety.

If you go back, you know, 40, 50 years, the idea of assaulting a judge or, a ruckus in the courtroo that that just seemed very rare.

Today you have all kinds of things going on in the courtroom.

So kind of two thoughts.

I'd be interested in this.

One is what's going on, in your opinion?

And what do we need?

How do we how do we address that?

Well, one of the things that's going on is that there's too much negative and dangerous rhetoric about judges and their decisions, too much criticism of judges too much, this this discussion of judges as a Democratic judge or a Republican judge.

They're just judges.

And I know, you know, over 99% of judges are working as hard as they can, exercisin the best judgment that they can.

And sometimes, a decisio is rendered that is unpopular.

And I hope I'd like to think that we have leadership at the national level, state level and local level that can communicate.

And the bar associations communicate to the general community that judges have a role to pla in our criminal justice system.

They've exercised their best judgment based upon the evidenc presented, and they've marshaled the trial, in their courtroom fairly.

And their work should be respected and, to intimidate judges, I thin is, undermines the rule of law.

We need our judicial system to be as strong as possible to be unbiased as possible.

It could be on a judge' making decisions, without fear that someone's going to, you know, going to hurt their family or themselves.

And so, again it's a question of, leadership and communication and education of the general public about the role of judges.

So I think that's one of the one of the, the keys to keys which is the lack of education where people don't really understand, not only the role of judges, in terms of the specifics, but but what they do, the wor they do, the effort they make, the support or whatever, or sometime they're on their own completely, depending on what level you're at.

And I think both citizens really don't know the kind of commitment that the vast majority of the judiciary make.

You don't make a lot of money.

You are limited.

You have some discretion as a judge.

But if you exercise that discretion in a way that's not right, you're going to be overruled.

And so you judges most judges want to virtually and 99% of a judges, they want to get it right.

They're doing the best they can within the syste as they operate to get it right.

They want to be fair to the litigants.

And that's what we should expect of all of our judges.

Certain judges can do a better job, and in some case our judges can do a better job.

One variety in terms of skill, where you have judge who really are very successful in making sure that the partie understand what they're doing.

And when a decision is rendered, you know, sometimes a judge will focus on the party that loss and really make a point of explaining why they came to a particular decision.

So hopefully that that person goes out of the courtroom not happy, but having a better understanding of of what happened.

And I think that's something judges need to do a better job of.

It's the same time.

Well, I think most judges are very respectful of all the parties in the courtroom.

I mean, there are times when judges, by their own behavior, I think exacerbates the situation and makes, a party, upset or angry.

And, you know, that's something I think, you know, we could do a better job of as well.

Well I think judges, most judges are very, very mindful of, and very disciplined in the way that they communicate information to the litigants, but generally to losing litigants.

And listen everyone wants to win in court, but most people understand they may not win in court, but everyone wants to know that they've been treated fairly.

And at the end of the day, that's al you can ask for in our system, if the system operates the way it should and you've been given a shot, been treated fairly and you lose, that's the way it is.

If I mean, for most people, how do we address the the issue of, how law is practiced?

And what I mean is, the legal realm, is a business, and a lot of the structure of how law is practiced, is really focused on maximizing revenue for attorneys.

And I'll give you an example where in certain cases, if an attorney wants to maximize revenue, they may be doing a lot of unnecessary discovery, for example, asking for documents and all kinds of evidence.

And, the cost of cases, for some people, certainly in the civil arena will criminal as well, but certainly in the civil arena, just can absolutely skyrocket.

Judges can move thing along much faster than they do.

And when cases take months or years to play out, you know, the partie are looking at potentially tens of thousands, hundreds of thousands of dollars.

It allows somebod with wealth, with resources to, to basically, outlast, another party, even though the other party may be.

Right.

So it's an issue, that you discuss, you know, or, you know, is is addressed is the school and every judge is different.

Every judge wants to give the litigants both sides an opportunity to mak their case, to produce evidence, discovery, as much discover as they believe is appropriate.

Because if they were to somehow make the decision.

You know what?

I think this case only requires ten hours of discovery.

Well, what's the how are the litigants going to feel about that?

I mean so judges want to be respectful so that people again, as I said earlier, people believe that they've had they've been treated fairly and had an opportunity to present their case.

Whether you're not you're suing, whether or not you're being sued.

And with respect to exorbitant fees, there's talk in the legal community.

And so to the extent that a firm is develops a reputation of being unreasonable, and in the fees that they'r charged, that gets communicated.

And so when someone is looking for a firm, they'll talk to this firm and say, well, you don't want to go to that firm because of this.

And so, you know, the market sometimes can deal with the problems you just identified.

Well, my sense is it doesn't do as good a job as we need, but also from a judge's perspective, I mean, certainly we can understand that if litigants want to get additional information, part of your calculation as a judge as well, you know, if I restrict, the collection of information, you know, that that could end up being a basis for an appeal.

So I think the default is to kind of let people do as much as they want to avoid that problem.

But, I think that the cost part of that really I think needs to be addressed.

Last issue of this segment and you talked about, Republican judges, Democratic judges.

And I think one of the things that a lot of people, a lot of judges, but I think a lot of people in the legal profession have been distressed by there has been, a shift to that kind of talk that instead of looking at opinion and seeing how well-reasoned i is, if you, you you didn't like it, it's a Biden judge o a Trump judge or, Obama judge.

A lot of people now, in just their own discours have adopted that perspective.

And I think that really has poisoned our system.

It's certainly dangerous because it implies to the to the public that this particular judge appointed by this particular president comes into every case with a certain mindset and a certain set of biases.

Why do that?

Why, why identify who appointed him on the bench as I'd rather know.

Okay.

What is your record on being overturned at the at the appellate level, for example?

That to me is a more relevant source of information as to who appointed you.

And the truth of the matter is, with respect to the selection of judges, which I was a part of it in the Bush administration, you know, we look to see whethe or not someone was was honest.

Someone was hard working.

Someone was smart.

We we didn't ask questions about their views on social issues or how they voted.

That was inappropriate.

And so what, it's like, referring to identifying people in the US Supreme Court, they're always the media always refers to well, who appointed this person?

Truth and matter is we're talking about the Supreme Court, and the court makes its decisions as a court and not as individual judges.

And so I think the less we talk about who appointed a judge, I think the more confidenc is built and the general public in the work of the court.

All right.

Mr.

Attorney General, thank you so much.

Thanks for having me.

That was Alberto Gonzales, the former United States Attorney General.

This was part one of our special two part series.

So make sure you watch part two.

I'm Aaron Harbor.

Thanks for watching.

And.

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