>> From WXXI News.

This is Connections.

I'm Evan Dawson.

Our connection this hour was made in 2018 when Letitia James was running for New York State Attorney General, as the New York Times reports, one of her promises in that campaign was to sue Donald Trump.

She called him an illegitimate president.

She suggested that he could be criminally charged with obstruction of justice.

She said that her decision to seek office was largely about that man in The White House who can't go a day without threatening our fundamental rights, and nobody is above the law, she wrote on social media, promising that she would hold those in power accountable.

President Trump responded by calling her scum, says she's unqualified, and promised to find a way to remove her from her office in 2022, after years of investigation, James filed a sweeping civil suit accusing Trump, his family business and his children of lying to lenders and insurers by fraudulently overvaluing assets.

She won the suit.

Although a $500 million judgment was thrown out as excessive.

This month, President Trump has turned the tables.

It's a story very similar to the indictment of former FBI Director James Comey, whom President Trump also promised to pursue using legal means in the Comey case, Trump's own appointed U.S.

attorney told him there wasn't enough evidence to prosecute.

Trump responded by making sure that attorney was removed, and he installed one of his closest allies, a woman named Lindsey Halligan, who had never prosecuted a case.

She's an insurance lawyer.

She joined the Trump team to help his legal defense several years ago.

Her lack of experience as a prosecutor was not a concern for the president, because she promised to go after Comey and within just days, she secured an indictment against Comey.

And then she turned her attention to Letitia James once again, according to reports from The Hill and others, prosecutors who reviewed that case told the president there was not sufficient evidence to charge, and that did not stop.

Lindsey Halligan, who secured an indictment on two counts against New York's attorney general.

President Trump has barely tried to disguise his desire to use the legal system for revenge, and some of his supporters say it's justified because of the legal cases that were wielded against him for the last number of years.

They argue it's an appropriate reaction because James, for example, campaigned on using the office against the president.

This hour, we talk about what happens when justice departments become political arms.

My guest this hour include two Democrats, two Republicans, four folks who've spent careers in the law.

And welcome to the program.

John Ark.

Judge Ark is retired as a New York State Supreme Court justice.

Welcome to the program.

Thank you for being here.

>> Well, thank you for inviting me.

>> And next to Judge Ark is Richard Dollinger.

Judge Dollinger is retired from the New York State Court of Claims.

Welcome back to the program.

>> Thanks, Evan.

>> Right across the table is Joanne Winslow retired New York State Supreme Court justice and a former Monroe County prosecuting attorney.

Welcome.

Thank you for being here.

Grab that microphone.

Get that real close to you.

Joanne.

Nice to see you.

>> Thank you for having me.

>> And welcome to Thomas VanStrydonck.

Judge VanStrydonck is retired from the New York State Supreme Court as well.

Thank you for being back with us.

Good to be here.

So a lot to to talk about.

And I'm just going to start with a broad question on whether your assessments of what we are seeing, whether it is the Comey James case is on their own, whether it's the totality of what we've seen since 2018, does this amount to weaponization of justice departments?

Judge VanStrydonck.

>> Yes.

>> Okay.

Justise Winslow.

>> Yes.

>> Okay.

That's Rick Dollinger.

What do you think, judge?

>> That all depends on how you define you know, they were.

so terse.

I know they were, but it all depends on how you define weaponization.

Okay.

I'll tell you, Evan, I'm going to give you a quick little example, because the legal system was weaponized against me last week, and I am upset by it.

I got a notice in the mail that said I was driving 67 miles an hour in a 55 mile an hour construction zone, and I was never arrested by a police officer.

I was sent a notice that I had violated the law.

Someone had weaponized the vehicle and traffic law against me because I was going 60, supposedly going 67 miles an hour in a 55 mile an hour zone.

my wife read it and said, I think you were going faster than that.

So I don't know that I've got a defense, but my point is, I was given a civil notice of an offense.

Was that weaponized against me?

No, somebody was enforcing the law.

What I think we need to do is differentiate between the political motive.

And I'm not going to defend Letitia James's comment or Trump's comment, but the issue of weaponizing is really what I think we need to discuss.

When is it actually weaponized versus when do you conduct an investigation and conclude that a crime has been committed?

And then what's a district attorney, a U.S.

attorney, supposed to do?

I'll concede to Judge Arkin.

>> I think those are fair distinctions.

I just I am curious to know if you agree with your colleagues across the table that we are seeing weaponization.

>> I think what we're seeing is the use of justice departments and district attorneys against political figures based on political revenge.

or opposition research period.

>> He has a hard time saying, yes.

>> You have to understand, he's a recovering politician.

So.

>> Okay, I think that's three yeses.

Judge arc, are we seeing the weaponization of justice departments?

>> I think we're seeing an extension of of Partizan politics.

>> That is.

>> That's morphed into the use of prosecutions.

But but there's nothing.

When you run for office, the first thing you do is you look to see if there's any vulnerabilities on the part of your opponent.

And when you if you find out that your opponent had a DWI or some charges against him or her years ago, you would take advantage of it.

So, if you ask me, has it gotten out of control?

Yes.

But is it a sort of a logical extension of just Partizan politics?

True.

>> So I think what you're saying, correct me if I'm wrong, judge, is it is a problem.

It is out of control.

But it did not come get created out of whole cloth in the last six months.

>> No.

>> This is a the consequence of something that has been building in this direction.

>> This is mutually assured.

Destruction is a way of potentially ending it.

>> Okay.

Judge VanStrydonck, do you agree with that characterization?

>> Not fully, because I think what it depends on what you're looking at.

We're looking at prosecutors or people who are running for prosecution, focusing on people that they promise they're going to prosecute.

and you shouldn't be focusing on people that you want to prosecute.

You should be focusing on whether crimes have been committed and who committed those crimes.

plus, you have a president who is directing the attorney general's office to go after his political enemies.

I mean, that's what we're seeing.

And they follow his direction.

I mean, he's he was so concerned.

I think, about Comey's statute of limitations running out that in his message to Pam, he said, we can't delay any longer.

And I think he was right.

They delayed any longer.

I think it was 5 or 6 days.

They'd have lost the statute of limitations.

So that's different than what John's talking about.

It's it's focusing on criminal prosecutions of your enemies and then trying to figure out what that prosecution could be for.

>> Now, Comey and James are have both said they're going to fight the indictments against them.

Do you view the the case against Attorney General Letitia James in the same light as you viewed the case against Comey?

>> Well, in in the result that it was a focus because she was he she and he were political enemies.

So, sure, they were focused on and I believe, if I remember correctly, the professionals in the U.S.

Attorney's office on both cases opined that they didn't have a case they should pursue.

That's right.

And that's why they substituted the you referred to her as the insurance lawyer.

I take umbrage at that because that's what I was.

>> Well.

>> That's what you.

That's what she is.

>> Yeah, but that doesn't make her unqualified for the job.

What makes her unqualified is that she was never a prosecutor and had never appeared in a in a federal court.

>> Let me do something that's important to all insurance lawyers listening that was not meant to malign your character or your work.

It was to point out that there's a difference between being an insurance lawyer and a prosecutor, and she's never been a prosecutor.

Right.

Okay.

>> So and she came out of his office.

>> That's right, that's right.

Do you have an issue with the way Letitia James campaigned in 2018?

Absolutely.

Talking about prosecuting.

>> Absolutely.

Yeah.

She was very vocal in the fact that she was going to go after Donald Trump and the Trump Organization and the Trump sons and daughters.

And at that point, I assumed that she didn't have any investigative file on why she would go after him.

And she indicated that she was going to sue his in response to a question and that he would know her personally.

Well, he knows her personally, and now he's going after her personally.

>> Yeah, indeed.

Joanne Winslow.

So how do you see these individual cases?

Let's start with Comey out of bounds to you.

>> Well, obviously, I don't know what was presented to get the indictment.

so I'm speaking very speculatively, but from what I have.

>> Even close to grab that mic even closer than.

>> What I have garnered is that the claim is that when he made a statement that he stand, he stood on his prior testimony that that's the issue.

It's a little confusing that if saying, I stand on my prior testimony, if that's what you're claim to have not been honest in front of Congress about, it's not specifying which of the prior testimony is at issue.

So it makes it very difficult.

I'm sure motions will be filed, and I'm sure a judge will review whether or not the indictment is proper and properly versed, based upon the fact that it's not specific at all.

And it makes it impossible to defend.

What is it you're saying?

That I wasn't honest about everything I said or some some little portion?

Was it a part where there was a misunderstanding?

Was it a part where I didn't remember correctly?

There are just so many avenues that this could go down.

>> Is there anything in that case that indicates to you, though, that this is an administration that is only pursuing this because they really feel like there is a legitimate legal claim?

It's not about revenge.

It's not about Partizan politics.

>> It's hard to feel that way when you have, you know, the president continually saying, you know, I'm your retribution.

He's my enemy.

I'm going, you know, telling Pam Bondi, you know, go after him, go after Tish James.

It's hard to look at it in any other way.

>> The the president has defended his selection of Lindsay Halligan for that job.

And again, I don't this is not impugning her character as an attorney.

But you're someone who was the head of the Major Crimes Division in Monroe County as a prosecutor, is it a concern to you to see someone appointed to that position?

And immediately that person who is never prosecuted case is out there securing high level indictments within days.

Is that a red flag?

>> certainly concerning.

Certainly.

Concerning you know, there's that old saying you can indict a ham sandwich.

It's pretty much true.

It's a very one sided process.

You know, there's no defense attorney, there's no judge, there's no one reviewing it.

The people that you're presenting evidence to are not they're laypeople.

so it's pretty easy to get an indictment if you have some basics.

if you don't have training in what is required and the, the standard at grand jury is so low compared to what is required at trial.

You know, it it as a prosecutor for 22 years, I would not have taken a case into the grand jury and done everything in my power to obtain an indictment, unless I thought I could prove the case at trial beyond a reasonable doubt.

Otherwise, you're just wasting your time, wasting the community's time, wasting tax dollars.

And I just wouldn't have done it.

>> Before I turn to your colleagues, do you share?

Judge VanStrydonck feelings about Attorney General James campaign in 2018, her public stance about wanting to go prosecute the president, and then the attempted prosecution.

>> I certainly agree that it concerns me.

It's not something I would have done, you know, even if I wasn't running for for a judicial position when I couldn't have said things like that if I was running for a position where I could say whatever I wanted, I never would have taken a position like that.

It's not not the type of person I am or the type of campaign I would run.

But politicians say a lot of things in order to get votes.

you know, they throw meat to the, to the base and maybe that's what that was.

But do I think it was a good idea?

No.

>> Well, a good idea set aside.

Do you think it was unhealthy for our republic?

>> Absolutely.

I agree with John in the sense that he said things are out of control and that, you know, they're sort of snowballing, you know, either side can be guilty of adding to the snowball, you know, coming down the mountain behind us and encroaching our heels.

>> Judge Dollinger how do you view these individual cases here?

Start with Comey out of bounds to you.

>> Well, let me let me just offer an observation about both of the cases and how they compare to the cases that were brought against Donald Trump.

They all involve misrepresentations under oath.

That's right.

That's what they're about.

I mean, if you.

>> Look, that's the allegation.

>> If you look at the both the fraud case, the civil fraud case against Trump in New York, which has been the verdict of which has been overturned on appeal.

And you look at the the convictions for the felonies in New York, they were all based on what were determined by by a judge in one case and by a jury in another to be fraudulent if not perjured, statements under oath.

My understanding is that's the exact nature of the allegations against Comey.

And James, is that during filing documents or applying for mortgages or testifying before Congress, they lied under oath.

that's a form of perjury.

I think we would all acknowledge that proving perjury is extraordinarily difficult.

>> Especially when it comes to the intention of how you want to use a property.

>> Correct.

>> And as a rental or a second home.

>> Well, and the other thing I would just caution as lawyers, I think we've always advised our clients you can push the envelope pretty far.

I mean, your job is to present your best case in applying for a loan or applying for a document, or making a statement or filing a document under oath.

And I think being able to differentiate between what you knew or thought at the time and what you specifically lied about can be very difficult to do.

Having said all that, I think this is where we have to count on the justice system.

We have to count on the district attorney of the U.S.

attorney to conduct a preliminary analysis of a case before the indict it.

And the other thing I just wanted to add to something that Judge Arc mentioned, in my opinion, almost all of the criminal prosecutions that occur, whether it's in the drug business or in the murder, it's all based on a tip on information given by someone who claims to know what happened.

>> it's fascinating.

all these drug house arrests that occur in the city of Rochester, a neighbor calls the police and says there's a problem.

They get a tip or what I believe happens more frequently is the competition calls and says, our competition is running a drug house at XYZ location.

The point is, and this is where I agree with Judge Arc, it's opposition research that becomes the basis for an allegation that they were not only doing something that might have stretched the law, but it's fundamentally on legal and therefore criminal.

>> So but but let me hit a couple of things before I turn to judge arc about this.

Number one, you say we've got to trust the system.

For those who would like to do what you are telling us to do, they might say, yes, the system was working.

You had prosecutors, even Republicans, even those appointed by The White House telling the president, who was inquiring, there's no there there.

We don't have we're not going to indict here.

We don't have a case.

And the president said, fine, I will replace you with someone who can do that, even if it's someone who's never prosecuted a case.

And so now you're saying we have to trust the system, and people are having a very jaundiced view of the system, because if you can replace someone to get the result you want, is the system working?

>> Well, except for the fact that there's a grand jury in both cases.

And while I agree with Joanne, the old adage about indicting a ham sandwich may be true nonetheless, you've got a group of people whose job it is to listen to the instructions from the district attorney and decide whether the facts as presented create a prima facie base.

you know, would establish the grounds for criminal indictment.

>> And there's a difference between the indictment and a conviction, and we're a long way from there.

>> Oh, absolutely.

I think, as Joanne said, if you look at the record of political or even criminal prosecutions, I know that Judge VanStrydonck was involved in Jo Jan was involved in John.

Did them you you get an indictment and they can't prove the case at trial.

And therefore there they're acquitted.

It happens all the time.

>> So when you talk, though, about understanding the evidence in a case and understanding, you know, the allegation against, in this case, Tish James, the idea that there's mortgage fraud that there was lying about representing about how property is going to be used.

This is not my expertise.

On one side, you've got MSNBC saying this is the biggest railroad job ever.

And if I turn on Fox News, it's this is mortgage fraud.

And she is a liar.

And The White House just is proving she's a liar.

And to me, I, I don't have the expertise.

What I, what I think I see as a layperson is someone who applied for a mortgage on a second property.

And I don't know if she was wink, wink, you know, misrepresenting.

So she'd have a smaller tax bill, I don't know.

My guess is a lot of Americans could probably be prosecuted for this.

If you're going to prosecute Tish James for this, my guess is she's not alone in this category of representing, in legal terms, for tax purposes, how you're going to use a property.

And is that wrong?

>> My, no, my only response to that is I think that was the exact argument that Donald Trump made when he was indicted, was that these were statements that I made based on my accountant, with the advice of my accountant.

And I signed these statements as evidence of this is what I was, had some confidence, reflected my economic status.

>> Okay, so go ahead, Joanne, before we turn to John.

>> Evan, the the issue I see there though is that if you're if you're going to have, for example, in the James case, it was I think 18,000, 18,000 some odd number of dollars that she was going to benefit in paying lower tax.

Because if you say it's your second home, you know, you might not get income and it's a more difficult mortgage for the banks to offer.

So they charge a higher interest rate.

So the problem there that I see, or one of the problems is that federal courts don't usually prosecute people for $18,000 fraud cases.

Federal courts are looking for millions of dollars.

They're looking for the big cases.

There might be a state prosecution that would happen for an $18,000 fraud, but there isn't likely going to be a federal prosecution.

And the problem with with all of this, there's a thing that is referred to as a show trial.

Maybe this is what it would be.

It'd be a show trial.

But the problem with show trials is that there are other important cases that should be having the time, the attention, the money, the effort put to them and should be moving through our justice system, which, because we're going to take up so much time with this one, you know, those either won't get to or they won't get to in a timely fashion.

And that's not justice.

>> Judge arc, when you look at the back and forth between James and Trump let me start by asking you if you do think she was out of line and the way she campaigned and her promises to the public that she would prosecute that there might be civil case, that there might be a criminal case.

And the way she's conducted her job in office in regards to prosecuting the president, was she out of line with that?

>> She could say whatever she wants.

But the ramifications that you then held accountable for what you say, she is now being held accountable for what she said.

But I want to go back to one thing you said.

Yeah.

One of the her explanations that you see in the media on her behalf is a lot of people do what they are prosecuted.

She's the attorney.

She there's only one attorney general of the state of New York.

Okay.

And I was in public office for 47 years.

And.

I was meticulous, filling out forms.

And I'm sure my co-judges were also because you don't know what's going to happen.

And we know of situations where you do something happened ten, 15, 20 years ago.

You then, for whatever reason, you're brought into the public eye and everything gets reviewed.

Well, she should have known better.

>> On her mortgage application.

>> On her mortgage application.

To me, it's inexcusable.

Absolutely inexcusable.

>> Okay, so she deserves what's coming to her as a result.

>> Well, I didn't say she deserves it.

However.

>> You're saying it was a it was an unforgivable mistake.

>> it's a mistake that shouldn't have happened.

Okay, well, first of all, I'm not saying it was.

I'm not agreeing with you that it was a mistake.

>> Oh, you're saying it might very well have been intentional?

Okay.

>> Of course it's intentional.

>> Of course.

Okay.

Okay, so then the question becomes then is this an appropriate legal response to her action?

The White House seeking to find a prosecutor who will prosecute to Judge Winslow's point at the federal level, a case that probably never gets the attention of the feds, given it's the size of it.

>> The best way to reduce the amount of mortgage fraud prospectively is to prosecute somebody who's very visible for mortgage fraud.

That's what's happening.

And that's one of the concepts behind the the criminal justice system.

You have deterrence and whatnot, but it's also educational.

So now people say, oh, my God, I'm filling out a mortgage application.

Is that my primary or my secondary or my vacation home?

you know, I'll put down it's my primary now.

>> They're going.

>> To think twice.

Mortgage.

Oh my God.

Hey, wait a minute.

Your wife turns and says, didn't some attorney general in some state get prosecuted for doing that?

>> Judge, I agree that that what you just described is going to happen.

It will probably make people think twice.

>> Well, hopefully.

>> I don't know that that's the White House's intent here.

>> Well, that's a different issue though.

That's a different issue.

We're talking about the criminal justice system and the abuse of the criminal justice system, the criminal justice system is to bring people to justice, but also to educate the public that we're we're a nation built on the rule of law.

>> And if this was happening without someone going forward and saying, prosecute her without career prosecutor saying, we're not going to do it, we don't see the case here.

I would agree with him.

But with those things happening, we're in a different scenario here.

>> And so so what's the possible harm that comes out of this scenario as you see it, Judge Winslow?

>> Well, it all depends on on where we go forward.

I mean, there was a press conference yesterday where even more people were named, with Pam Bondi standing there and with Kash Patel standing there.

So, you know, this is not the end.

Apparently it's we're on we're on this trip together.

If one of the things that I keep hearing is people saying, you know, you got to be careful what, what you ask for because, you know, you might get it in return later.

If there is an election.

in, you know, the next presidential election.

And if power changes, what's to keep the Democrats from doing the same darn thing?

>> Well, here's my issue with that.

And this is something that I wish would be at the center of every conversation about this.

You might think that what's happened in the last couple of months with Comey, with James, with possible other prosecutions, is it's own central universe.

And what preceded it doesn't matter.

Or you may think, as Judge Arcus said, that this is the natural, sort of toxic confluence of events that didn't just start this year, and it didn't just start with one party.

Whatever you think my goal would be to make sure people understand, they should be asking themselves, what are my principles?

And if my principle is the justice departments at the state level, at the federal level should never be wielded for political retribution, then it is not okay to say, well, I don't like what the president is doing, but look what James did in 2018.

Then.

Then that's not a principle that you have then.

It's just a preference that certain levers only be pulled when you have the power.

The principle are harder to adhere to when your team is the one that's misbehaving.

And I don't see us doing a good job of policing our own teams there.

Although I hear Judge VanStrydonck saying, you do think this is weaponization, regardless of which party it is.

>> Yeah, and I think that stepping back from it somewhat, you can be proud of some of the lawyers involved in all of this.

The ones that said, there's no case and I'm stepping down or I got fired.

But we can also be disappointed in the attorneys who haven't done that, such as Pam Bondi.

You know, back in Nixon days, you had Elliot Richardson refused to fire Archibald Cox.

He got he stepped down Archibald Cox finally got fired by then Solicitor General Bork because the person in between Ruckelshaus wouldn't, wouldn't fire him either.

And lawyers have got to stand up to that.

And to have a lawyer come out of The White House and do the the bidding of the executive is not a proud moment for the bar, in my opinion, but the people who stepped down and took the heat, I think, is a moment of being proud of their professional ethics.

And that's the disappointment, I think, from a legal point of view, from a from being all of us being lawyers and three of us at least being prosecutors.

You don't prosecute because you're afraid of your losing your job.

You prosecute because the evidence is there.

And as Joanne said earlier, most of us look beyond just the preponderance of the evidence.

But rather, can we ultimately prove this beyond a reasonable doubt.

And these cases, I believe from the professional lawyers point of view, do not meet that standard.

And the attorneys who allowed themselves to be used by the president should probably be embarrassed, in my opinion.

>> And maybe we should know the names of the people who lost their jobs and publicly salute them.

I mean, the people who are willing to give up their careers, or at least their current post because they want to do the right thing and let the consequences follow.

It's not always easy to do that.

we have to take our only break of the hour and we'll come back.

We've got plenty of your feedback here, so we've got questions, comments from the audience, and I am so grateful to have this.

Really, it's an outstanding panel of people who have retired from careers in the law in our state.

judges John Aach Joanne Winslow, Tom VanStrydonck from the New York State Supreme Court, Judge Richard Dollinger from the Court of Claims, and their outstanding experience helping us contextualize what we are seeing with prosecutions and with what looks like you know, kind of a spiraling legal back and forth.

So let's let's take this break.

We'll come back and get your feedback next.

Coming up in our second hour, do we lower the flags too often?

Historian and journalist Justin Murphy, a Rochester, has written a piece for The Atlantic, arguing that we do lower the flags too often, that it has become, for many Americans, confusing or even meaningless that it happens hundreds of times a year in different places across the country.

Without context.

We'll talk about the practice of lowering the flag next hour.

>> Support for your public radio station comes from our members and from Andrew Burke, associate real estate broker with Remax Realty Group and proud supporter of WXXI News, committed to guiding home buyers and sellers in Rochester for over 22 years with offices at ten Grove Street, Pittsford.

More at Andy Burke,.com.

>> All right, let's get some feedback.

And listeners, you can join the program in multiple ways.

You can email us Connections at wxxi.org.

You can call the program toll free 844295 talk.

It's 8442958255263 WXXI.

If you call from Rochester 2639994 and you can join the chat if you're watching on the YouTube channel there in Rochester is on the phone first.

Hey, go ahead.

>> Thank you for taking my call.

Sure.

My here's the thing.

So I keep hearing people talking about the justice system, how the justice system works, how you can believe in it, how it always fills out.

Okay.

Other than Donald Trump, show me someone else with 34 felonies who never spent a day behind bars.

There are millions of people throughout this country, most of them black and brown, who are behind bars for misdemeanors.

That's all.

That's my that's my pitch.

That's all I have to say.

>> Okay.

Thank you.

Anybody?

Go ahead.

Rick.

>> Well from my point of view, it's very simple.

I happen to know Juan Marchand, who was the judge in the in the Trump criminal case, which he was found guilty of 34 felonies.

He issued an appropriate sentence.

that sentence can I think the whole jury determination is still up on appeal?

I don't know what's happened to it on appeal, but that's the way the justice system worked.

You may dispute the extent of the penalty that was imposed, but that's what the trial judge did under those circumstances.

I believe he also issued a fine and some other restrictions.

But from my point of view, I defend the trial judge's decision to impose that penalty.

may not be time in jail.

>> but I, I'm confident that that was within the scope of Judge Marchand's authority.

And he did it.

And that's the way the system worked.

I'm not going to be critical of that.

>> Dallas writes in to challenge some of what Judge VanStrydonck was saying.

Dallas is saying that judge, you haven't seen the cases.

You don't know which attorneys deserve our respect or not.

And maybe the attorneys who are prosecuting Comey and James are the ones who deserve our respect, not the ones who resigned or were willing to lose their jobs.

>> Fair enough.

Comment, but neither has that particular color.

So I just believe that the professionals involved in this rendered an opinion.

And the lawyer, the lawyers that went in and actually indicted the cases came from The White House, and it was at the direction of the president.

They should have had enough spine to say, I'm not going to do that.

some did.

So he's correct.

We don't know what the result is going to be, but that's not the issue as to whether or not the people that they charged are guilty of the crimes.

It's where the direction came from and the motive for the indictments.

>> Joanne Winslow Evan, I just would point out that, you know, line prosecutors at the in the federal justice system work for administrations from both parties and they work for, you know, their career prosecutors.

so if you get a career prosecutor who's worked in both Democratic and Republican administrations, who comes forward and says, I don't see a case here, I would trust that.

>> The the other thing I would just add, Evan I think if you look at the U.S.

Attorney's office, especially in the Eastern District of Virginia, which is a very busy jurisdiction, the decision not to go forward with an indictment was not made individually by the U.S.

attorney.

He's got a staff of his internal group who give him advice.

It's not just one lawyer who said, well, I don't think I can get there.

My guess is he had investigators.

He had a whole team of people who walked in and said you push this thing to an indictment, you won't get a conviction, and then it will look like it was purely a political prosecution because you couldn't you couldn't finish the deal.

But I just think that and this is where I agree with Judge VanStrydonck.

these decisions are made by professionals who I'm confident, even in this day and age, the U.S.

Attorney's office, the district attorney's office right here in Rochester, whether it's prosecution of people in Rochester, we've had high profile people who've been prosecuted here.

A former mayor, a deputy mayor in Greece.

These were all criminal prosecutions right here in this town.

And I will guarantee that Sandra Dawley was not making those decisions off the cuff.

She did them with the input of her team and her experienced prosecutors.

She was one.

You were one.

Joanne.

these were people who got together and said, can we get this indictment over the goal line?

And it just seems to me in the coming case, I don't know about the James case, but these are decisions made not just by a single individual, but by a team of prosecutors.

>> And I would just say to Dallas, who emailed the name of the U.S.

attorney for the Eastern District of Virginia who resigned before The White House could fire him.

Was Erik Siebert Erik Siebert resume includes.

He's a Virginia military Institute graduate.

He was a Washington police officer.

He led a team of 300 prosecutors, prosecutors in a jurisdiction that often handles major cases related to national security.

He was praised by the president previously.

And then he told the president there wasn't enough here.

We're not going forward.

And the president's response was, the president himself told reporters this on September 20th, fine.

I want him out.

That would not let me talk to him or I'm surprised, or I should.

I have my lawyers review this case, which might have been meddling to begin with.

Not, I trust, his judgment or the judgment of his team of 300.

Its.

I want him out.

I want him out.

And Dallas, what you're saying to Judge VanStrydonck is that you don't think Judge VanStrydonck has enough information to allege or to assess whether Erik Siebert should be praised?

And I would say forget whatever party you're in.

I think that it is praiseworthy to behave that way.

okay, this is from Charles, he says.

First of all, he says, how come I couldn't find an hour of Connections?

That was done on the appropriateness of James campaigning on the promise of targeting both Trump and the NRA.

And Charles goes on to say, James rhetoric and conduct was not limited to Trump.

The former board of the NRA was misusing funds.

I say that as someone who runs a nonprofit and I'm a lifetime member of the NRA, I'm glad the former board can no longer be involved.

The remedy that was proposed by A.G.

James was dissolve the entire NRA, not get rid of the bad apples, but rather this entire group whose politics I oppose should no longer be allowed to exist, which is what she promised to do before she was elected and has previously acknowledged before she had any amount of evidence to that fact.

Would the panel call the proposed remedy justice or weaponization of justice?

Shouldn't people in New York who disagree with her feel just as concerned as leftists who disagree with Trump?

That's from Charles.

Okay.

How do you feel about that judge arc?

>> Yeah, I mean, let's not make Letitia the standard of propriety and good judgment.

Okay, so, but that's the nature of Partizan politics and elected and who we are, who we elect.

And to go back to what I said originally, in a democracy, you want more information than less information, has it gone?

Has become a hyper partisan and a toxic, quite possibly.

But this is really the the result of, of advocacy part of of bringing forth so that the, the voters who are ultimately responsible have as much information as possible.

>> And judge, one thing that worries me is before you even came in here today, I had to look it up and going, Is John Ark a Republican or a Democrat?

I didn't know I had, you know, covered cases that went before you over the years.

I didn't know your politics.

I didn't know Joanne's politics.

I didn't know I knew Rick because Rick had been in state government, different situation, you know, until last month.

I don't think I remembered Judge VanStrydonck and nothing about any of the four people at this table whose work as a judge, justice, whose work that I have covered as a journalist indicated to me anything Partizan or overtly political.

But now we have well, this is an Obama judge.

This is a Trump judge.

This is a Trump prosecutor.

This is a left wing prosecutor.

And I don't think that bodes well for the future of what is supposed to be a justice system that isn't just about politics.

How do you see that?

>> I couldn't agree with you more.

I couldn't agree with you more.

And Lady Justice has a blindfold on and it's interesting that as a trial judge any case that, I would decide would go to the Appellate Division and the Appellate Division are pure political appointments in the sense that they're appointed by the governor.

And so, more likely than not, the governor will appoint somebody from his or her own party.

But one thing that I always felt comfortable with is that there were five judges on the panel, and whether the Republicans or Democrats, liberals or conservative, I sit around, I've spent 42 years being a judge with other judges, and it's hard to get two judges to agree on anything, let alone five.

And that, to me, was really a source of comfort, knowing that of the five, regardless of where you're coming from, you're still human beings and you have views of looking at stuff and that will manifest itself in an appeal.

We had to have at least three votes out of the five panelists, and that to me was very comforting.

And then when you go to the Court of Appeals that that will review what the Appellate Division might have decided.

And it's seven judges.

Okay.

So ultimately, as it works up, its system you get more input from a variety of perspectives for a variety of reasons.

And that that, to me is comforting as a citizen.

So when I saw that the Trump was guilty or somebody's not guilty or, or whatever it might be, I would have hopefully have faith in the appellate determinations of the review and what my fear was is a New York state judge.

Is that because I frankly thought that the some of the decisions made at the trial level for Trump were just crazy.

Okay, legally.

But I felt that, well, they'll go to the Appellate Division.

The Appellate Division will do what it does.

And in fact, that happened on the fraud case, right?

Okay.

And hopefully if it goes to the Court of Appeals at the Court of Appeals, which, by the way, could be more political than one of the appellate divisions or a trial judge.

Okay.

that they'll do the right thing because I frankly think the integrity of the entire New York State judicial system is on the line right now.

Okay.

And I hope they just come up with a thoughtful decision, not a Partizan Partizan decision.

>> I just want to emphasize something that my friend John Ark said, and that is the one concern I have is the erosion of public confidence in the criminal justice system.

If it becomes too partisan, we may already be far down that road.

I agree with John that we have, for the last 25 years, in my opinion the, the distance between justice and politics has just completely been lost.

I'm always reminded that Lady Justice as, as John described it, has a blindfold.

Justice should be blind.

But she also has a scale to weigh the the pros and cons of a particular issue.

And in her other hand, she has a sword, which is the ability to impose a penalty when it's justified.

My concern is that the public's confidence in a fair and impartial justice system, which in my opinion, is critical to the functioning of America, is now under attack.

And I believe that we need to step back.

We need to just rethink where we are.

And ideally separate our politics from our judicial criminal justice system.

And let the system that worked well for 200 years.

John, let let that work.

Let it work.

I put the power in the district attorney.

I put it in the power of the U.S.

attorney.

I happen to believe that Tish James's comments back in 2018 were pure politics, and it should not have spilled over into her sense of what was just and fairness.

But this is what happens.

And I agree with John as well.

So what happens when you elect the attorney general?

You have them step out and say things that they're eventually challenged to translate into their practice of law and their criminal prosecutions.

I regard that as unfortunate.

>> I want to take Robert and Fairport's call in a second.

Robert, hang there for for one second.

Let me ask their colleagues across the table to weigh in on this, because in reading Justice Gorsuch's book, he he cites a legal scholar who makes the point that the average American commits at least three legal offenses a day based on what's on the books.

Now, Justice Gorsuch, Gorsuch's book is called overruled and is largely about the the overburdening on Americans.

On the average everyday Americans, small business owners, people in small towns everywhere of a legal system that is too complex and probably too overwritten.

That's the justices view.

But his point is that if you worked hard enough, you could find offenses on anybody, including me.

Believe it or not, Joanne.

And to judge Arkes point, Judge Winslow, the next president, if there's a Democrat in the office, could say, well, we're going to find something on previous people, whether it's Donald Trump, but also other people.

And we could find maybe we'll find big stuff, maybe we'll find small stuff.

Maybe we'll find something enough that we'll prosecute.

How do we get out of the cycle that says, when I get the power back, you're going down.

What is going to happen?

And are you concerned that we can get out of this spiral?

>> I certainly hope that we can get out of this spiral, because if we don't, it's only going to get uglier.

And I don't think any of us are going to like the country we're living in under those circumstances.

If Howard Relin had come to me years ago after an election and had said, you know, my opponent, I don't like the things he or she said about me during the campaign.

I want you to open an investigation and find something I would have.

I would have put together my resume that day and left the office, because that is not the way the office operated.

It's not the way it was supposed to operate.

And it never did.

If if you're going to determine prosecutions based upon, you know, either politics or whether you like somebody or don't like somebody or whether someone's offended you or not, it just is not the way our system is run.

As Judge Dollinger has said, for some 200 years, I think the justice federal justice system, I think, what, 1870 or somewhere around there was when it began.

And it has run, you know, no system is perfect, you know, but our system runs better than than others.

Or we would adopt change.

But no system is perfect.

Certainly things have occurred where there are times when going to a town court, maybe I received a phone call saying offer the A.I.

And it was a little outside the policy.

Yes.

That's something though, that was discretionary.

And that because it's an elected position, the D.A.

was allowed to make those decisions and then rise or fall on those decisions.

If, you know, that was something that then became an issue, that would become an issue.

And either they'd be reelected or they wouldn't be.

The problem with some of what's going on here is that, you know, Tish James campaigning the way she campaigned, the result of that, or the penalty for that should be she doesn't get elected again.

It shouldn't be that she should be prosecuted or, you know, crimes found against her, as you say.

You know, maybe the V.A is where many of us break the law, more so than anywhere else.

Most people don't stay under the speed limit.

so I would agree.

>> Pointed at me.

>> Justice Winslow.

>> You pointed at yourself earlier this hour.

Judge Dollinger.

>> I actually was.

God rest his soul.

I was actually thinking of Howard Brown, who was a horrible driver, but he was a wonderful D.A.

and a wonderful man.

but, you know, it just it's.

I don't know how you interrupt it.

I don't know how you stop it.

Many things have been happening that you just scratch your head and wonder, how is this going to change?

Or how are we going to pull this?

When's the pendulum going to swing back towards center?

You know.

>> Judge VanStrydonck, are you confident that we can get out of that spiral?

>> I'm hopeful that we can.

But, you know, the hypocrisy of people that are politicians that are talking about this now is are pointed out, I believe in like the gerrymandering, gerrymandering issue.

Oh my God, when Texas is going to gerrymander the Texas so that they have more Republicans, the Democrats were shouting how unconstitutional it was.

It's a terrible thing.

It's almost criminal.

And they turn around and their answer to it is to gerrymander.

>> California.

>> California or other places.

Well, it's either wrong or not.

And instead of saying it's wrong and we're going to do wrong things, they should be saying it's wrong.

And when we get in power, we're going to do the right things.

And I think that's the cycle that you're talking about.

They say, oh, my gosh, if we make this decision here, when the Democrats take control, they're going to come back after us.

Probably not without some reason to say that.

But that's the hypocrisy of it.

If it's wrong, you don't counter it with an equal wrong.

>> And if you'd be upset if your opponents did it in office, you ought not be going down that road yourself.

Yeah, Robert and Fairport got to keep it tight.

Go ahead Robert.

>> Yeah.

Back in 2008, we had a financial crisis that was caused largely by mortgages that were misrepresented.

The rating agencies gave a lot of this, these mortgages that your dog could have taken out.

they gave them AAA ratings.

And eventually this collapsed the market for mortgages.

We we had a near collapse of the stock market.

I think that the Tish James thing is a bigger deal than we're kind of giving.

Giving it here because you have an elected official that that knows, knows the rules.

The reason that a secondary property is given a higher mortgage rate is because they tend to default at much higher rates than mortgages for a primary residence.

And I think we're forgetting the fact that in 2008, we nearly had an economy go down due to shenanigans like that.

>> Robert, thank you for the phone call.

I mean, again, I think Judge Arc made plain earlier this hour, however you feel about what The White House is doing independent of that.

he thinks the attorney general should have known better.

>> Oh, no question about it.

And the if, if, if it was unlawful, what she did, she should be held accountable.

How we got to that point is, frankly, irrelevant.

>> Well, and and my only observation is that was the same issue with the Donald Trump prosecution in New York for the false statements on his on his, on his valuations, the and and what it comes down to.

And this is where I agree with Judge Arc.

I think any public official who has broken the law should be held accountable.

I will just add one final thing in in my opinion, whoever the next president is will not be able to extract any revenge on anyone who worked for Trump.

It's very simple.

Trump is immune from acting in his political, in his presidential capacity.

Joe Biden pardoned all of his family members and everybody else.

My guess is everybody that worked for the Trump administration will get a pardon.

And whatever accountability that you think they might have will never come to pass.

>> just briefly, as we close here, do do all of you would you support changes so that AGS and DA's don't run for office or.

I mean, that's probably a whole other conversation.

>> But you're opening up.

>> Oh, no.

John's gone.

You can't do that now.

The hour is over.

Well, maybe that's the next conversation.

Well.

but but the.

>> The problem, it makes a difference.

>> I think.

>> I think that what what you see particularly in the judicial sphere, we have Supreme Court judges here that are elected, elected.

We have federal court judges that are appointed, the Supreme Court judges that are elected are elected by a party they supported by a party.

The federal bench is appointed.

And it's rare that you're going to get a Republican president, appoint a Democratic federal judge and vice versa.

So the politics will not be taken out of those decisions.

>> Okay.

Fair enough.

>> Correct.

>> Okay.

So and I think tomorrow we've got judicial candidates on the program.

Is that right?

We try to do that.

And listeners always tell us thank you for doing that because it's hard for us to vote on these issues without knowing them very well.

You're going to hear the candidates who are on the ballot tomorrow on this program.

I want to thank retired judges.

Richard Dollinger Thomas VanStrydonck Joanne Winslow John Ark.

Thank you all for sharing your expertise and your wisdom with us.

>> Our thanks for having us.

>> Thank you very much.

>> More Connections coming up in a moment.

>> This program is a production of WXXI Public Radio.

The views expressed do not necessarily represent those of this station.

Its staff, management or underwriters.

The broadcast is meant for the private use of our audience.

Any rebroadcast or use in another medium without express written consent of WXXI is strictly prohibited.

Connections with Evan Dawson is available as a podcast.

Just click on the Connections link at wxxinews.org.