- Justice is supposed to be blind, but today's guest says that individuals blessed with power, fame, and money have advantages in the criminal justice system unavailable to most Americans.

He's Elie Honig this week on "Story in the Public Square".

(uplifting music) Hello and welcome to a "Story in the Public Square" where storytelling meets public affairs.

I'm Jim Ludes from the Pell Center at Salve Regina University.

- And I'm G. Wayne Miller, also with Salve's Pell Center.

- And our guest this week is Ellie Honig, a former state and federal prosecutor.

You've probably seen him offering legal commentary on CNN, but he's also the author of a new book, "Untouchable: How Powerful People Get Away With It".

Elie, thank you so much for being with us.

- Thanks for having me, my pleasure.

We have never any shortage of legal news, and I am continually surprised by, well, I guess I'll plug it, how relevant the book remains.

I think the lessons are fairly timeless, so look forward to discussing.

- Well, we're gonna get to the book in just a minute.

You know, for folks who have seen you on CNN over the years, you know, I think there's some curiosity about your background and what drew you to the law in the first place.

- So, I am a Jersey kid.

I'm from New Jersey, my dad is actually a lawyer, and people sometimes go, well, that must have made you want to be a lawyer.

No, quite the contrary, because I saw that it's real life.

I saw that it's not just "Perry Mason" or, you know, Tom Cruise in "A Few Good Men".

I saw how hard my dad worked and that it's a grind.

I have, you know, complete respect and gratitude for all he did but I got to see how hard it was.

Nonetheless, I went off to college if I can plug my state university, Rutgers University, and I did an internship with the public defender, the county public defender in Middlesex County, New Jersey, and went into jails to meet with clients and started watching trials.

And that's when I went, ah, this is what I wanna do.

So then I went to Harvard Law School, I guess up towards sort of your way and was at a firm for three and a half years, and then I was a prosecutor, and I'm sure we'll talk about this, for 14 and change years.

I was federal and I was state and it is the greatest job you can have.

You get to do things that are more exciting than what you would see in a movie, and you get to make a real difference in the world around you.

- And you give us a glimpse of that in the book.

So the book is "Untouchable".

Let's start with that 30,000 foot overview.

- Yeah.

I think it's no earth-shattering thesis to submit that people who are powerful, wealthy, famous, well-connected tend to do better in our justice system than those who are not.

But what I tried to do in this book is explain why and drawing on a couple different sources.

One, my own experience.

There are a lot of tales from the courtroom there, especially my mob trials.

I was Chief of Organized Crime in the Southern District of New York.

I always have to specify Chief of the Organized Crime Unit, not chief of actual organized crime.

(hosts laughs) - [Jim] It's an important distinction, yeah.

- Yeah, no, it isn't right.

(Elie chuckles) I draw on my own experience, I draw on current developments in the news and various stories, both high profile and maybe more under the radar that we've all been following over the last several years.

And I have some original reporting in the book, which, unexpectedly, became very timely.

I tell the story in the book of why my former office, the feds, the Southern District of New York, decided not to charge Donald Trump criminally for the hush money payments.

Turned out the moment my book went out, came out and published, it basically came out that the Manhattan DA was gonna charge it across the street.

And so I will tell you, in that ongoing case, the prosecutors, as part of their discovery obligations to turn over evidence and information to the defense, said just the other day, said, you're gonna wanna check out the following books, and there's a list of 15 or 20 books, and mine is on there.

Says, okay, it's part of the case now.

We'll see, hopefully they don't subpoena me.

- So the book gets into the reasons of how the rich and powerful can get away with misdeeds and crimes, and we're gonna get into that in a little more detail.

But start with, where'd you get the idea?

When did you get the idea for this book?

You've had a long career and you may have had other book ideas that percolated before, but give us just a little of the background of when the aha-moment or maybe there wasn't or how you started the idea and how you got writing on this.

- I'll take you a little bit inside the publishing world.

My first book, both of these books that I've done were with Harper Collins, one of the big publishers.

The way I got this deal, if anyone's out there, how do you get a book deal?

I don't have any good answer for you because they DMed me.

So on Twitter, my DMs, direct messages, the private messages are a mix of weird solicitations and people once in a while who like something I said or appreciate what I do, sometimes people who hate what I do on air.

And one day I just got this one 17 word DM from an editor at Harper Collins who basically said, I don't remember the exact words, but he basically said, "Hey, I see what you do on CNN.

Would you wanna write a book about Bill Barr and the Justice Department?"

And I said, yes, I would.

We did that book, that book came out in 2021, and then within weeks of it coming out, my same editor said, "What do you wanna do next?"

And I said, "I don't know, I don't really have any idea."

And he said, "Well, let me put it to you this way.

What question do you get asked the most?"

He said, "Take a few days and think about it."

I said, "I'll tell you right now.

That I don't need to think about, that's easy.

How the hell does he get away with it?"

And they said, "There you go, there's your next book."

And so we developed it out and it happened very quickly.

These two books came out a year and a half apart, which I'm told by people who understand this industry, that's very quick.

But it was in a way, a natural follow-up to the first book, which was about the Justice Department and how it had been, in my view, corrupted under Bill Barr's tenure.

And this is a sort of maybe flip side of that coin of how people benefit from not necessarily corrupt, sometimes corruption, but from the many advantages that are built into the system.

- So in other words, you did not have a high-powered agent who was shopping this around at the major houses in New York.

- Proud to say I have no literary agent.

I am a free agent, solo actor (hosts chuckle) when it comes to books.

And agents are great, but I just, I got lucky and I did it direct and it worked out great.

- Good, so I wanna get back to something you said earlier.

You obviously prosecuted mob figures.

Were you afraid during that?

I mean, I'm thinking of me doing that.

Obviously I'm not a lawyer and never intended to be a lawyer, but I would think, oh God, like, there's a cross here on my forehead, gotta be.

Talk about that 'cause it must take a certain degree of courage, right?

I mean?

- Well, no, I mean- (hosts laugh) - What does it take then?

- I would like to, you know, and it is funny 'cause sometimes if people write stories about me, right?

Like he took down the mob, he stared down mob bosses.

I mean, I guess I was just doing what a lawyer does.

I was never fearful for two reasons.

One is my style was never to make it personal, right?

There were prosecutors, I was taught when I was brand new at the Southern District of New York.

I'm 29 years old and one of the senior guys goes, "When you're opening a trial, you have to walk over to the defendant and point right in his face and say, 'This is the defendant.

This is so-and-so.'"

And whoever's the tougher guy, and I was like, that is not me.

I treated the whole business as a business and I didn't hate the people I prosecuted.

At times, I empathized for them.

But the bigger factor is, it just doesn't make sense for the mafia.

There's no cost benefit in it for them.

Let's say hypothetically, and I guess I have to say, God forbid they ever tried to do something to me, what would happen?

The case doesn't get dismissed.

If it was the case that the case got dismissed, that's different, but God forbid they did something to me.

We just plug in the next prosecutor and all holy heck would rain down on them.

Because this is one of the mob rules that they actually do usually abide by is you do not threaten or go after a judge, a cop or a prosecutor because all it's gonna do is bring the entirety of law enforcement down on you.

And there's no profit, there's no cost benefit in it for them.

- You know, you actually write about this in the book.

You talk about how, you know, "As the prosecutor, you're the good guy, the hero, Captain America.

But I'll tell you what is scary: going after a powerful politician or a CEO or a wealthy celebrity who will battle you every millimeter of the way, claim he's been falsely accused, and do a public-relations tour to discredit your entire case and likely you personally."

Can you elaborate on that a little bit?

- Yeah, this is, I think I say in the book the same question you all just asked.

Is it scary?

And I say in the book, honestly, no.

And then I say, but I'll tell you what is scary.

You know, going after a dangerous mob boss is they're not going to try to trash you, trash your office.

They're gonna fight you in court.

But look, let's look at the Jeffrey Epstein case, for example, cases, plural.

Everyone remembers of course that he was ultimately prosecuted by my former office federally and then died in jail, but he was given a pass, essentially, the first time through the system.

He was being prosecuted by state level prosecutors in Florida and he brought in this dream team of famous lawyers, Alan Dershowitz, Kenneth Starr, the former US attorney for that district down in Florida.

And people say like, basically Florida gave him the pass, the feds let him go plead to a state level charge, he did only a few months in jail.

Most of that time he was allowed to go out and hang out at his lawyer's office.

They completely gave this case away and people have asked why, or do you think he bribed them?

No, I actually dig into this in the book and I do some research and it's quite clear to me that the prosecutors just were intimidated.

And in fact, one of the members of the team says that in my, she had said it publicly, but I quote her in the book.

And it's scary because they were threatened, they were threatened, we're gonna, the defense team actually investigated the prosecutors personally.

I think people were intimidated by the threat of a drawn-out litigation.

I think people were intimidated by the threat of just trench warfare with a defendant who is very well connected and has endless resources.

And as a result of that, Florida gave the case away.

The only reason Jeffrey Epstein was ever brought to justice, two reasons.

One, a local reporter down in Florida, Julie Brown, did remarkable work to reveal what had happened; and two, by happenstance years later, the US attorney on that case, Alexander Acosta, became a member of Donald Trump's cabinet, which invited renewed scrutiny.

And Congress and then the media said, what happened with the Sep Epstein case?

And then renewed focus and then there was a media furor about it, and the Southern District of New York then picked up the ball and charged him, and then he thereafter died.

So it would be scary, you know.

I can't say I wouldn't be scared to fully prosecute Jeffrey Epstein.

I'm not making an excuse, prosecutors should not be scared in that way.

I'm very critical of those prosecutors, but I think that's why it happened.

- So let's get into some of the techniques that the rich, famous, and powerful use to get away with it.

Start with speaking in codes.

What is that and how effective is it?

- So if you were to watch a mob movie or other movies involving a wiretap, you will know, and this is true, smart criminals know how to convey what they want to convey without necessarily saying it explicitly.

When you're listening to a wiretap, I talk about this in the book, excuse me.

People will sometimes speak in code, so for example, if you're up on a wiretap listening to the phone calls of a drug dealer, they won't say, hey, I need six kilos.

Hey, do you have any heroin?

They will use words like sometimes they'll say girls, sometimes they'll say t-shirts, sometimes they'll say tickets.

And my favorite example of that, because it's so transparent, is we were up on one wiretap where the code was cars.

So we go, hey, do you have four cars?

No, I only have three cars.

And at one point, one of the guys says, hey, I need two and a half cars for- (hosts laugh) Okay, yeah, that doesn't work.

The right or the left.

- [G. Wayne] Not very good code.

- Right, exactly, exactly.

And so if you look at, even though political criminals or corporate criminals, they're very good at giving instructions, letting people know what they need to know without quite saying, hey, I need you to go into the grand jury and lie for me.

A more realistic way they'll do it and I give examples in the book and say, "Hey, I heard you got a subpoena.

Okay, when are you going in?

Alright, do you need a lawyer?"

And that's another tactic.

Do you need a lawyer?

Everything kosher?

You know, are you gonna, we're gonna be okay, right?

And normally, depending on the organizational culture, it will be very, very clear what that means.

I'll just tell you one other thing that I mentioned in the book, 'cause sometimes, you know, "Goodfellas" is, in my professional opinion, the greatest mob movie ever.

There are parts of it that I think are maybe not so realistic, but one part that's very realistic, there's a scene at the barbecue and Ray Liotta's, you know, the main character doing the voiceover, and he says there's a shot of a guy goes over to the boss, Paulie, Paul Sorvino, and whispers in his ear and Paul Sorvino just looks at him and nods.

And Ray Liotta's voiceover, he goes For a guy who moved all day, Paulie didn't talk to six people, and that's exactly what a smart boss does in real life too.

- You know, so one of the other techniques that you discuss is, well, it's not so much technique, but it's the benefit of public office.

And this is a chapter that really dives deep into the case against former president Donald Trump, particularly in the hush money case and you break some news here.

For the folks who haven't had the benefit of reading the book yet, what is that case and how does it play out?

- So this of course relates to the payment by Donald Trump of hush money to two actresses, Stormy Daniels and Karen McDougal, who allegedly had affairs with Donald Trump, and they were paid off right before the 2016 election.

This became part of the federal investigation when Michael Cohen cooperated with the feds, and now it's the subject of the first-ever indictment of the former president by state prosecutors, the Manhattan DA.

I wanted to answer the question in this book, why didn't the feds charge Donald Trump for this?

Now, while Donald Trump was in office, and this is one of the great benefits of being president, it is longstanding DOJ policy initiated during the Nixon administration, that DOJ does not believe it constitutionally can indict the sitting president.

So that explains why DOJ did not charge Donald Trump up until he left office.

But my question was, well, what's happened in the two plus years since?

And so I give inside reporting on that from what happened within the SDNY and I'll just, the short version of it is the SDNY felt they had probably sufficient evidence.

The opinions varied a bit, some thought the case was strong, some thought the case was sufficient, but not overwhelming.

But the bosses at Main Justice sort of stepped on certain aspects of the case and ultimately the feds decided it's just not worth it to bring such a monumental prosecution for the first time ever of a former president where the evidence is good but not great; where the crime is a crime, but not the most serious crime, and by that point, paled in comparison to January 6th; and where the political stakes would be so high.

Now, what was so interesting is that just a few months ago, the Manhattan DA came along and made a very different calculation.

And I think the difference there is, I detail in the book, the Southern District of New York was not willing to rest a case on the word of Michael Cohen.

They thought he was unreliable.

The DA in Manhattan, it seems, has reached a different determination and will rely on Michael Cohen and we'll see who got it right.

- So this is a question I think a lot of people have had and still do have.

Is there anything in the constitution that prevents indictment of a sitting president?

What's your?

You know.

- The answer is no and it's sometimes wrongly stated.

Sometimes you'll hear people say, well, DOJ cannot indict a former president, excuse me, a sitting president.

That's not quite the right way to say it.

The real way to say it is we don't actually know if DOJ can constitutionally indict a sitting president because they've never tried, but their longstanding policy is that they should not try.

And I went back and dug into that whole process.

The original memo setting forth this policy was written during the Nixon years, although actually interestingly not with Nixon in mind first.

It was written with Spiro Agnew, the VP in mind, and Spiro Agnew got some bad news.

The ultimate conclusion was cannot indict the president, but guess what?

Can indict the- (hosts' laughter drown out speech) Yeah, good news, bad news, Spiro.

And by the way, of course that was actually not, Spiro Agno had bribery issues unrelated to Watergate.

The issue was then revisited, this tends to happen, during the Clinton scandal.

The Bill Clinton impeachment and ensuing scandal and they reached the same result.

But if you really look at this memo and look into what went into it, it's not a legal memo.

There is no legal answer.

You can't extract the answer out of some statute or some Supreme Court decision.

The memo actually is very practical.

It basically asks the question, if we were to indict the sitting president, how the heck would we function?

What would that do to the executive branch?

Are we gonna have a trial of a sitting president if he doesn't get impeached, which is a political process that we can't control?

If he gets convicted, are we gonna imprison the sitting president?

And I actually, excuse me, I know that this caused some people consternation and frustration during the Trump years.

But I actually, in my opinion, think it's the right decision because I just don't think there's any tenable, everyone goes, well, they'd impeach him first.

Not necessarily, right?

If you have enough people of the president's party in Congress, they might not impeach him.

Realistically, we're gonna have a criminal trial of the sitting president?

We're gonna potentially imprison?

What's that gonna do to our military?

He's the commander-in-chief to our executive branch.

So I actually think as frustrating as it might be, I think it's probably the right policy.

The way it's supposed to work is the guy gets impeached or the guy gets voted out of office or his term ends and then you can indict.

- But doesn't it send the message though that no person except one is above the law?

- [Elie] Yes.

That's exactly the message.

(hosts laugh) - That's what I thought.

- That's exactly the message it sends, which is, I would amend it a little bit to no person is above the law, except one for a limited time.

And yes, I do think that's a feature of our constitutional democracy.

It's not great, it doesn't feel as good as just declaring no person is against the law.

But as you see in the book, I tend to view the law largely through a practical lens and I don't see how we could have an imprisoned president and continue to engage in foreign diplomacy and protect our military.

I just think sometimes reality has to win out over aspirations.

- And I think that's a really good point.

I mean, the country would be paralyzed.

You mentioned the military and we could go through a list of functions of the federal government.

I think that absolutely is a good point.

Hadn't thought about it.

- So Elie, one of the things that you explained in the book that I did not know, and maybe I should have, but that in organized crime cases, quite often, low-ranking operatives have their counsel paid for by people higher in the organization.

- Yeah.

- How is that permissible under law?

- It's very permissible, and as I'll get to in a moment, DOJ is actually just fine with it.

This is so common.

I used to see it in my mob cases.

You'd arrest 18 members of the Gambino family.

You would know in advance who the lawyers were gonna be.

We would call them house counsel because they would all get paid for by the family, by the bosses, and their real function was to make sure nobody flipped on the boss.

And I tell a story in the book about a low-ranking guy who we found out through a back channel wanted to flip, but he couldn't go through his lawyer 'cause he knew the lawyer would tell on him.

And so it's a little bit, I'll leave it the viewer in suspense, but there's a cloak and dagger story about how he got it done.

This happens all the time.

Donald Trump and the Trump organization have paid for fees for many witnesses, including most famously Cassidy Hutchinson, who was the sort of star witness at the January 6th Congressional hearings.

She said, until I got rid of my Trump-funded lawyer, I did not feel like I could fully come clean with the truth.

And once she did, that's when we saw her testify.

Also, this happens all the time in corporate America.

And by the way, it's not necessarily bad or evil.

In fact, if a large corporation's under investigation, typically the corporation will offer to pay for or pay for attorneys, and people want that because attorneys are really, really expensive.

But the practical result is it makes it really difficult to flip because A, there's a fear of being found out.

B, there's a fear of having your attorney's fees cut off, and here's the remarkable thing that I alluded to before.

For a long time, DOJ was officially against this.

The DOJ manual, which gives guidance to all federal prosecutors in the country, up until 2008 said if a larger organization pays the bills for its employees, the legal bills, we will consider that a factor against that corporation being cooperative.

We will count it as a strike against cooperation.

In 2008, however, with the stroke of a pen, the AG changed that policy and said, actually, we're fine with it.

They actually say, I quote this in the press release or whatever it is, they say, "We believe that corporations share our same commitment to open transparency with the government."

I'm like, really?

I don't.

I don't think corporations, I mean, I'm not even anti-corporation.

That's not corporation's job to promote open, transparent government.

And so DOJ changed their policy and said, you can do this and we will not hold it against you.

And if you wanna blame one party the other, that's been the policy since 2008.

We've had administrations of Democrats since then, we've had administrations of Republicans since then and nobody has changed it.

- So I wanna get into another very important issue that you address in the book.

You write, and I'm gonna quote here, "Our criminal justice system is infected by bias against women, particularly young women and minorities, and in favor of men who are powerful, rich, and famous."

And you go on to explain the bias, both human and institutional that's at work there.

Can you break that down for us?

What are the roots of this?

Why and how can it be corrected?

- This is one of those areas where famous, high-profile stories, individual stories, really meshed with the data and I dug into the data here a bit.

It's something that we've sort of long known, but I think it, you know, we've seen stark examples recently with Harvey Weinstein, with Bill Cosby, with Jeffrey Epstein, with Larry Nassar.

All rich, powerful men who preyed on predominantly young women, many of the minorities, by the way.

And you will see astonishing examples in these stories of cops and prosecutors fawning over, bending over backwards for the rich guy and basically ignoring the word of the victims.

I'll give you one example from the book.

In the Bill Cosby case, the initial case, which was botched, they gave him a pass.

The cops who were from the area outside of Philly where Bill Cosby is a, you know, Bill Cosby, you both remember.

I mean, we now know Bill Cosby.

- [G. Wayne] Oh yeah, sure.

- Bill Cosby had a 100% approval rating in the '80s and '90s.

You know, it's like Tom Hanks now or something.

The cops do the first interview with the victim over the phone and they're very dismissive of her.

I mean, first of all, anyone who's ever worked in sexual assault prosecutions knows it's hard enough to build trust and rapport with a victim, nevermind a young victim, even in person.

But over the phone is a ridiculous way to do it.

Then when it came time to interview Bill Cosby, these guys traveled from Pennsylvania into Manhattan to Bill Cosby's lawyer's office, met with Cosby, and then the chief of police comes out, talks to the press and the press says, how did it go in there?

And I have the quote in the book, but the chief of police says something like, "He came out wearing his typical Cosby sweater.

I don't see any reason to doubt anything he told us.

Nothing to see here."

And it's like he's openly fawning over this very popular celebrity.

The data bears this doubt, I dug deep into the data.

One thing that I found really interesting is that race obviously has long been a basis of bias in our criminal justice system.

We know that similarly situated Black defendants get treated, generally speaking, worse than white defendants.

That goes back forever.

One thing that really surprised me that I draw out in the book is that the race of a victim actually has an even bigger impact, which in a way, to me is even more insidious.

So if a person, God forbid, murders or assaults a Black person, the sentence is likely to be much lower than if the victim is a white person.

And I think you can, you know, draw the sort of logical conclusion about what that says about our system and the way that it values victims and does discriminate on the basis of race.

So I hadn't really, I was aware of that phenomenon, of course.

You learn about it in college and it's true, but when you dig into the data, it really jumps to life.

- You know, Elie, we've got about 45 seconds left here, but as I hear these stories, you know, I think about the role of the citizen in all of this.

And if we care about these issues, if we wanna see bias out of the system, if we wanna see the powerful people who may commit crimes held to account, what role do we as citizens have in making that happen?

- It starts with our decision makers, and so I think that comes down to voting, that comes down to petitioning government, all the First Amendment rights.

Free speech, not electing prosecutors who are too timid, electing policy makers who are ready and willing to enact legislative change and demanding accountability.

I hope that my book was one small part of bringing awareness to this issue so that people can identify these problems and help push us towards solutions.

- Well, it opened my eyes to a lot of things that I was unaware of, so Elie Honig, thank you so much for being with us.

The book is "Untouchable".

That is all the time we have this week but if you wanna know more about "Story in the Public Square", you can find us on social media or visit pellcenter.org where you can always catch up on previous episodes.

For G. Wayne Miller, I'm Jim Ludes asking you to join us again next time for more "Story in the Public Square".

(uplifting music) (uplifting music continues) (bright music)