Robert Scheer SI Podcast

Ronald Goldfarb: America’s Prized Legal System Only Works for the Rich

On this week's "Scheer Intelligence," the attorney offers a scathing indictment of American law and lawyers in his new book, "The Price of Justice."
Attorney Ronald Goldfarb. [Photo by Benha Gardner]

The United States legal system, it turns out, is nothing more than an enabler of greed that has turned American society into a depraved playground for the decrepit rich. That’s the devastating lesson found in the pages of attorney and literary agent Ronald Goldfarb’s latest book, The Price of Justice: Money, Morals and Ethical Reform in the Law. In the latest installment of Scheer Intelligence, Goldfarb joins host Robert Scheer to discuss his book, which Scheer describes as “scathing in its indictment of the corrupt legal profession where too often profit smothers commitment to justice in criminal or civil jurisprudence.” 

The highly successful, Yale University-educated attorney condemns the many lawyers who earn hefty paychecks from defending pharmaceutical giants or oil companies and hide behind ethical rules that Goldfarb dismisses as myths. To the lifelong attorney, in a judicial system that is at every stage rigged in favor of the 1 percent and that makes a mockery of the right to a fair trial, there is no moral justification for helping companies like Chevron and Purdue Pharma to continue profiteering with impunity. 

“I fundamentally believe we are what we do,” says Goldfarb. “I just hope that the law schools, professional organizations, and public interest groups try to make this oceanic change in the morality and ethics of our profession.”

Goldfarb offers this devastating critique from the vantage point of an attorney who worked in Robert Kennedy’s Justice Department and took seriously the then-attorney general’s instruction to challenge the power structure. The Price of Justice outlines how in the fifty years that followed RFK’s death, however, the killer claws of wealth have only become more deadly.

“Justice reform is long overdue, and Goldfarb’s book takes us one step closer,” Sen. Bernie Sanders writes in the book’s forward.

Listen to the full discussion between Goldfarb and Scheer as the two discuss how America’s broken legal system leads to 97% of federal criminal convictions stemming from plea bargains rather than trials, and leaves the vast majority of Americans without any recourse to seek justice. 

Host:
Robert Scheer

Producer:
Joshua Scheer

Introduction:
Natasha Hakimi Zapata and Robert Scheer

Transcript:
Lucy Berbeo 

RS: Hi, this is Robert Scheer with another edition of Scheer Intelligence, where the intelligence comes from my guests. In this case it’s Ronald Goldfarb, a man who spent a life in the law; a Yale lawyer, for that matter, like many on the Supreme Court. He practiced in the Air Force as a judge advocate, he has been involved with many law firms, he’s written many books. And he worked with Bobby Kennedy on organized crime when Bobby Kennedy was head of the Department of Justice. And his new book is called The Price of Justice: Money, Morals and Ethical Reform in the Law. But you know, reading your book–which is really a very powerful, couple-of-hundred-page essay, very readable; it almost is something that a Tom Paine could have written. It is a condemnation of both our criminal legal system and our civil law. 

And it surprised me, because you know, the prose is mannered, it’s careful; you’ve got a lot of footnotes; you bring a lot of qualification and prestige. You’ve been on the highest levels of government. And yet this is a condemnation; basically it says that ethics and the law, as practiced in the United States, are an oxymoron. One has nothing to do with the other. It is a system, on both civil law and criminal law, that is so rigged by wealth and privilege that the average person, particular poorer working people, really don’t have a chance. They just don’t have a chance at justice. The price is too high. I don’t want to make more of this than you intended, so why don’t you summarize your argument? But I found it powerful.

RG: I’m flattered that you described it the way you did, because this is not a book that I intended to be just for lawyers, and I hid the footnotes in the back [Laughs] for that reason. And you know, I’m hoping the general public will like this. I’m sure they’ll like it more than the ABA. Basically, I started thinking when I read a book about Harlan Fiske Stone’s biography, who was a great Justice of the Supreme Court and Dean of the Columbia Law School–one line that I read, which he said: Law schools should be teaching students how to live rather than how to make a living. And that struck me, because my whole life, all of my colleagues and friends and associates were making a ton of money and buying farms so they could have cattle to, you know, deduct their taxes and whatnot. They’re all good and nice people, but they were–their firms were making a lot of money doing things that I could never allow myself or want to do: representing the tobacco industry, representing the drug companies that would keep deleterious products on the market, making a fortune doing it. 

And they defied two of the fundamental things that all lawyers learn in law school. One is, you know, the first question we always get is, how could you represent somebody who you think is guilty of a crime, or of misconduct that wasn’t criminal? And the typical answer–and I bought into it as a young law student, because it kind of made sense–is that, well, you can’t shade lawyers in the color of their clients, because professionally the two are separated; and lawyers are acting out of principle, because somebody has to represent clients. And that is a true homily, but it isn’t the way the real world operates. Because if everybody who is entitled to a lawyer would have a lawyer, then there wouldn’t be this problem. In fact most people, overwhelmingly most people, don’t have a lawyer. So you have this kind of hortatory motto about the profession, which has nothing to do with what really goes on. And it starts with the law schools, as Fiske Stone said. And more recently Owen Fiss, who’s a lawyer, a law professor at Yale Law School also, has written, and I have written in different debates and articles and book reviews through the years. 

So in a way, this book is a bit of a kind of looking back at my profession after over a half-century. And my thesis is that we are what we do. And there’s no arm’s-length, metaphorical difference to us because we’re professionals carrying out a professional duty. And the illustration I use in the book is Donovan, a famous New York lawyer, represented Colonel Abel, a Russian spy, because–this was during the McCarthy era, and the federal court asked Donovan to represent him. And he did it, and probably at no fee. That’s the thing that lawyers do which is the highest form of professionalism: you take an unpopular person and a prejudiced person, and like Atticus Finch in To Kill a Mockingbird, you do it because it’s your obligation as a professional. But that has nothing to do with the people, in my judgment, who represent Big Pharma or tobacco companies or torture in the government, or prosecutors who know they’ve got the wrong man and prosecute them, sometimes in capital cases. And it’s a phony use, in my judgment, of this theory of the practice of law which we all buy into, and we all use as an excuse for things that they probably don’t want to tell their children they’re doing. 

And oddly enough, some of these people are great public citizens, because they’re very wealthy; they can afford to work for common cause, pro bono work in their spare time, because it makes them look good. But the fact is, for example, one judge who writes frequently about law practice pointed out that in the federal court system, 97% of the cases that come, criminal cases that come to the federal courts are not tried with a judge and a jury. Ninety-seven percent. They are plea bargained, where the party, the defendant either doesn’t have a lawyer or he has a lawyer who often isn’t that good. And the prosecutor has all of the chips in the poker game: we’ll charge you with 10 offenses if you don’t plead guilty, we’ll charge you with one if you do, and save the court’s time. So this notion of court systems and equal justice under the law and everybody’s entitled to a lawyer–they’re just homilies. But they’re not what goes on in the system. Ninety-seven percent of criminal cases. And in the states, it’s over 90 as well. 

So that’s number one. Number two, in civil cases, the Constitution guaranteed people in civil litigation that they have a right to a trial. But it doesn’t give them a right to a lawyer. At least in the criminal system, the Constitution has been interpreted–and only recently at that; relatively recently at that, in the famous case of Gideon that Tony Lewis wrote a book about. I think it was also a movie, Gideon’s Trumpet. So in the criminal system, you’re allowed a lawyer, but you don’t get one. And in the civil system you’re allowed a trial but not a lawyer, which is a hollow thing. So you have the legal aid in the civil system, which is publicly funded, and the public defender system in the criminal system, which is publicly funded. But they are incredibly overworked, they don’t handle appeals very often, they don’t have expert witnesses and forensics and the FBI, the IRS, and all the investigative agencies working for them. So it’s like you and me getting in the ring with Muhammad Ali, and the umpire says OK, may the better man win. We know it’s always going to be Ali. So it’s a system that–lawyers who practice all have to know that they’re playing a part in a charade. 

And the notion of justice–an interesting little aside, on the Supreme Court building, etched in the marble at the entrance, is “equal justice under law.” And I looked it up and found out that “equal justice under law” doesn’t come from any, you know, Maimonides or Justinian or historical Supreme Court cases. When the building of the Supreme Court was built earlier in the 20th century, and moved from the Senate building where it had been, the architect had to fill a space that was over the columns. And he needed to get some words that fit in there [Laughs] and sounded good, so he came up with “equal justice under law.” And that phrase is like a Hallmark card, and you see it all over the place in judicial decisions, and speeches by lawyers, and lectures–and it’s just an ad-lib by the architect who kind of made it up. 

And there are two professors, one now deceased, one I think is still living, who have written the kind of metaphors of what I’m trying to describe to you. And they did it so well that I’ll just summarize it now, then stop and let you ask more questions that might be on your mind. One of them is a guy named Yale Kamisar at the University of Michigan Law School. And he talked about the “manor houses” of justice and the “gate houses” of justice. The manor houses were the law schools that taught these high-sounding principles, and the gate houses were the police stations in the street. So you have the high-minded notions of principle, which applies to the manor houses, which is the people who have a lot of money. But the people on the street, not so much. And they don’t have lawyers. And if everybody’s, if the justification for representing a tobacco company is everybody’s entitled to a lawyer, how come 90% of the people don’t have a lawyer? If you’re a scoundrel and you’ve got a lot of money, you’ll get a lawyer. 

So that’s one. And then the other was Herbert Packer, who taught at I think Stanford. And he wrote about the due process model, and the reality. The due process model is that we have all these laws, like the constable has blundered so the defendant gets left off, or it’s better that a hundred guilty people go free than one innocent man be found guilty. But–that’s the due process model, and it sounds good, but what goes on in the streets, the real model, is: “I can’t breathe!” “Get your knee off my neck!” “I can’t afford bail, so I go to jail for six months before my trial.” 

And the purpose of the book is to try to demonstrate to the general public, and to the profession, that lawyering has become a big business. Law firms now have thousands of partners in scores of cities all over the world. They don’t even know each other, and they’re partners. And they have to do all kinds of checks to see if it’s a conflict, because somebody in the Paris office might have a conflict with a client in the Miami office in America. I mean, you know, and they have cafeterias, and they have nurseries for the kids. And it’s just–but in order to do that, the lawyers are charging a thousand dollars an hour. More, if they have a rich client. But in rural America, for example, studies have shown that 15% of the people who live in rural areas in America are in places that don’t even have a lawyer if they could afford it. 

RS: What percentage was that?

RG: Fifteen. One-five. So they have to drive to another city in the first place, if they can afford it. And then when they get there, if they can afford it, they get a lawyer, but not unless they can pony up. So mostly, it’s only very, very rich people who even have legal assistance. And in those cases, that’s where the lawyers get rich–and they get very rich. One lawyer who left a big law firm that started off in Washington and is now a national law firm, he quit because he got tired of just making money, and he said I’m not talking about clients, I’m talking about my partners. So he left to run legal services, and he pointed out when he was running the legal services corporation, which started out as a part of OEO, Office of Economic Opportunity, he said that he found that the whole federal budget for the legal services corporation in America now–which is the publicly funded lawyer agency–was the same budget that people spent for their pets’ Halloween costumes.

RS: Their pets?

RG: Pets’ Halloween costumes. Halloween costumes for their pets. Same budget annually as goes to the legal services corporation. It’s bizarre, and it goes on and on. You know–I know you know, because you’re involved in the case of a Californian who’s been in prison for years for a crime that he didn’t do. And it came out that there was evidence that he didn’t do it. There’s a law, it’s called the Brady Law, which is violated regularly by district attorneys who are supposed to turn over exculpatory evidence if they know of it. And they don’t. And they systemically don’t. And even in capital cases–there are people who have been in prison for decades. There have been people in prison who have been executed, when the prosecutors knew, it came out later, that they had the wrong man. Not only did they kill the wrong man, but they left the right man out to commit further crimes. So whether it’s the prosecutors in these Brady Law cases or the police in, you know, case after case, as we’ve seen particularly this past year–and Black Lives Matter has been pointing them out almost regularly; never goes away. But the police investigate themselves, and they rarely are prosecuted, and only in the smallest amount of cases. 

So, if you step back from it all, one of my theories is that all institutions operate for the benefit of the administrators of those institutions, and not for the people who those institutions were designed to save and to represent. Classic example, Catholic Church. You know, city after city. In L.A. I think the–if my memory serves me correctly, the whole diocese went bankrupt. And after centuries of pedophilic priests, that the Church fought, and when they conceded it, they either moved the priests away or paid off the family with nondisclosure agreements. That has gone on for centuries. When it started to get litigated, only about a quarter of a century ago, thousands of priests have been found guilty of doing this, and the Church covering it up. 

In the farmworker area that I spent some time in, and have [been] a federal appointee by a federal judge examining how farmworker laws operate, when Cesar Chavez–in your neighborhood; he was outside of Bakersfield–when he started his strikes about 30, 40 years ago, when Chavez was a cultural hero in the country, he sought the assistance of the churches. And they were doing fasts and prayer meetings and whatnot. The churches were funded by agribusiness that the farmworkers were attacking. And in the early days of the fight, the Church found itself serving its money sources and not its people about whom they preached from church pulpits every weekend.  

RS: Yeah. Let me–

RG: What’s that? No, I was going to say eventually that changed, and I wrote a book about that after my experiences and quoted some of the church people. And they said, you know, we reached a moment of truth. How could we be enunciating these principles to people on Sunday in church, when those people were being abused by the people who were funding our church? And we had to take a position. Eventually some of the churches joined the farmworkers, and that helped. But you know, again and again, whether it’s prosecutors who don’t prosecute themselves, police who aren’t policing themselves, farmworkers’ churches, media–you know, look at Fox News and all of the litigation that’s been brought against it, along with some of the other major networks, of sexual predators taking advantage of their employees.

RS: Let me cut in, because that is–the power of your book is, yes, it talks about the 97% on criminal cases who don’t get adequate, or any kind of representation. They plea bargain, and they have to take the best deal they can. But it goes to Wall Street. And I want to say, the book is called The Price of Justice: Money, Morals and Ethical Reform in the Law. Bernie Sanders wrote the foreword, Senator Bernie Sanders, and he gives a very powerful endorsement of your book. And the book is objective in the sense that you don’t hold back. You criticize, even though you were in Bobby Kennedy’s Justice Department, and I gather you’re a Democrat; you’re pretty tough on Bill Clinton and his use of the pardon power. Or Eric Holder, who was in the Clinton administration as Attorney General, also the Obama administration. You take no prisoners in this book.

And what you’re really–and again, we’re not just talking about criminal law, which is significant enough. We’re talking about civil law, where people get thrown out of their houses, they can’t pursue cases of maltreatment at work, and so forth. Or they’re swindled, as in the great housing meltdown. Or what’s going on right now, in the middle of a pandemic; this month, the banking industry had their most profitable month. And no one is going to go after the contradictions of their buying off government. Goldman Sachs just had its most profitable month, in the middle of a pandemic–or profitable quarter–and no one will tie that to the kinds of laws we have and the enforcement about white-collar behavior, and the deregulation of Wall Street.

So what I’m saying is I want to convey the power of this book. And it’s a very easy, accessible read. But it–let me just literally see how long–it’s not that long. You conclude on page 173. But it’s a must-read. Because you know, the U.S. has held itself up as an example for the world. And the example that you’re describing is a cesspool of moral corruption, OK? And I just want to say, this is not just coming–and you have a lifetime of experience. I’m talking to Ronald Goldfarb, who began as an advocate general in the Air Force. He worked in the Kennedy administration on the highest level. He’s been with one law firm after another. He’s also been a very well-known agent, book agent; actually, I believe you represented me on one book, full disclosure. But you know, you were also, I think Bernie Sanders’ agent. 

But I just want to quote something from page 150 of your book. You cite Chief Justice John Roberts, U.S. Supreme Court Chief Justice John Roberts. And in 2007, he’s talking about the tremendous disconnect between the legal academy, the law schools, and the legal profession. And he’s really talking about this oxymoron of ethics and law, and he said in 2007, quote–this is John Roberts, Supreme Court Chief Justice: “They occupy”–this is the law schools–“They occupy different universes. What the academy is doing, as far as I can tell, is largely of no use or interest to people who actually practice law.” That is a damning indictment. That what they teach in the law schools and what they’re doing is, in the eyes of the Chief Justice of the Supreme Court, is largely of no use or interest to people who actually practice law. And what you talk about in your book is all the pro bono work, and all the volunteers, and all the do-gooder stuff that you read about, is a pimple on the body of American law. It’s nothing. You know–

RG: It’s a half an hour a year, according to Deborah Rhode, who’s a Stanford Law professor and who has analyzed the pro bono system. Which is not to criticize the people who do it. But you shouldn’t exaggerate its impact on the practice of law, because I’m pretty sure her statistic was it averages out to about a half an hour a year per lawyer. And at that, they’re not representing necessarily poor people in some cases; they’re representing Common Cause or environmental groups, organizations who need help. And I don’t criticize them for doing it, but it doesn’t satisfy the problem of the book, which is, you know, most of America can’t afford the legal system and suffer as a result of it, and they don’t get justice.

RS: Yeah, and the people who are complicit–most of the lawyers, and the people teaching law. You know, reading your book made my blood boil. I mean, the vulnerability that most of us have in the face of this legal system shames the pretense of democracy. It’s just that clear. You know, you go through these disasters, whether it’s the housing meltdown, whether it’s police putting a knee on the neck of a person, whether you’re White or Black–yes, Black people, Brown people are disproportionately hurt much more. But the fact of the matter is, this illusion that we have a justice system–as you say, the price of justice–if you’ve got the money, you get the justice. If you don’t have the money, you don’t get it on either civil or criminal law. 

And I want to mention, I happen to know one of the judges, Earl Johnson, who you credit with helping you. He’s a judge here in Los Angeles. And I believe–because I remember I once interviewed Bill Gates of Microsoft. And Bill Gates’ father was, along with Judge Earl Johnson, they founded Rural Legal Aid, something you referred to before, legal aid, legal support and everything. There was an illusion, beginning with Franklin Roosevelt and continuing through Lyndon Johnson and so forth, that somehow we were going to have a society where the average person and poorer people, more vulnerable people, would have access to legal aid. But according to the statistics in your book, that too is a sham. It’s just–what your book is saying, basically, is that we’re holding out a model to the world that is a fraud. I don’t want to put too fine a point on it, but I read your book and I’m angry because of your message.

RG: I’m flattered that you got it, and it was my hope that not only lawyers would read it. And I don’t limit myself to cases, although I have them in there because my ideas need authorization and data. But you know, the movie Erin Brockovich, one of the great movies, that was a civil case. The movie A Civil Action was a story of a civil case. Gerald Posner just did a book called Pharma, and he talked about how the lawyers defending Oxycontin at one point were being paid $3 million a month while Oxycontin was earning $30 million a week. It’s, you know, there was a movie last year called Dark Waters, which dealt with a public-spirited lawyer in a small town in West Virginia who took on DuPont. And you know, they were dumping toxic PFOA, it’s called, sludge into nearby properties, and animals were dying and people were drinking it. And DuPont fought the claims for years, defending it as proper, and it turns out that DuPont paid the largest fine ordered under the EPA at the time, which amounted to–and I’m quoting now–less than two percent of the profits earned by DuPont on PFOA that year. 

So lawyers, when they say everybody’s entitled to a lawyer and this is neutral, I don’t think so. I don’t think so. But I have debated this in the traditional, equal point of view, the majoritarian point of view. I debated this with Alan Dershowitz in the Washington Post about one case where a big New York City law firm was representing Swiss banks, and the associates in that firm said, we’re fighting people in the Holocaust whose fortunes were stolen from them. How can we be lending our good name to that particular cause? And the partners wrote back saying, we’re neutral, everybody’s entitled to a lawyer, if it isn’t us it’s going to be somebody else, and thank you very much for your advice. Well, bravo for them, but what happens when those lawyers, when they go to these law firms? I wonder how many of them made partner, and how many in other cases don’t have the guts or ability to take on the law firms and do the dirty work. You know, I mention a case in the book about Senator Gillibrand…you know, defending herself for journalistic exposés in the New York Times about how she represented that firm’s tobacco clients. And that firm even had a policy where if you had any private hesitancy about working on those cases for those companies, you didn’t have to. 

So it is a bad scene. I’m not saying there aren’t good lawyers; there are. I’m trying to make the case for being professional and for being public-minded in what you do. It doesn’t necessarily require an oath of poverty. Earl Johnson, who you mentioned earlier, was a colleague of mine in the Justice Department, and then he became a judge in California. And he did a three-volume book on civil justice; he made great contributions to his country in all of the work that he did. He was a teacher; he ran OEO programs, legal aid programs. I mean, there are people doing good things. Sargent Shriver, who in my mind is one of the great civil citizens, who accomplished great things running the Peace Corps and then setting up OEO–I worked for him in those days, and then I represented him later when he wrote his book. In between his public service, he went to the big law firms, but he wasn’t doing some of these cases like are described in the Erin Brockovich movie. Those are all true stories, those movies that I mentioned. Stu Eizenstat, who worked in Jimmy Carter’s White House and then was assistant secretary of treasury, of state, you know, represented Holocaust survivors who were denied their insurance. 

RS: All right, all right, I got it–there’s a–that’s not what this book–that’s fine. But matter of fact, what your book says–and let’s cut to the chase here–the system is corrupt in the most fundamental sense of that word. That if you have 97% of the people have to plea bargain on criminal charges, and the only people who get a hearing in the court are the people who can afford a thousand dollars an hour, we’re talking about a profoundly corrupt system. You’re talking, in your book you talk about all the damage the banks and Wall Street did to the American people, and no accountability. The laws are rewritten so they’re not even breaking the laws most of the time, and even when they are, they get off with a fine for their company that’s marginal. The book is an indictment. And we’re not talking about indicting Albania’s legal system, or even Russia’s legal system; we’re talking about that you’re indicting the legal system of what is supposed to be the city on the hill, the shining example of democracy, OK. And it’s, to use a Yiddish word, it’s a shanda. It’s a shame, OK? It is a shame! 

And I just want to bring up a couple of examples, because you tell us about all the good liberals, but in your book, I must say, there’s a fairness, you know. You call out Kamala Harris, who may–you know, she’s certainly, I think at this moment, going to be vice president. And she’s certainly got a good shot at being president of the United States. 

RG: And I like her, and I like many of the things she did, and I don’t have anything against being prosecutors. I was a prosecutor for three and a half years; it surprised me that I was. But I was prosecuting dangerous people violating the social contract of our society. And so I purposely put in people like her, because I admire her, and it’s too easy to complain about these shysters that hang around courthouse lobbies and pick up drunk-driving cases and whatnot. The Clinton pardon that you mentioned was one of the most egregious examples of the use of the clemency power. It’s easy to pick on Trump for abusing the pardon power, which he does. But I think if you’re honest, you’ve got to say the same thing about Eric Holder, and he admits it now; he says it was one of the bad things he did in his experience. He’s done a lot of good things. So it’s very hard–I think it’s important to say that the good guys, the good citizens, are, many of them who are lawyers, are keeping bad products on the marketplace, bad stuff in the air and water. There were lawyers during the W. Bush era who were justifying torture. You should read those legal memoranda, where they’re describing why some of these draconian things that we were doing were justified by the lawyers. One of them is now teaching at Berkeley, and one of them is a judge.

RS: Right, but let’s–I don’t want–we’re going to wrap this up now, and I don’t want you–maybe you do want to do it, but what your book says is very strong. And I do want to, let’s pick up on this Kamala Harris thing. Because you mentioned before that I’ve written about, I’ve interviewed Kevin Cooper. You didn’t give his name; I assume that’s who you were talking about, who’s on Death Row–

RG: Yes.

RS: –and has been there for 33 years. Now, Kamala Harris, when she was running for president and campaigning and people were bringing up her past–when she was attorney general in California, and when she was district attorney in San Francisco–she could have done, and so could have Jerry Brown who was the governor, they could have done something to give Kevin Cooper an innocence hearing. They could have given him his day in court. Because there were–I forget the number now, something like six Brady violations, what you’re talking about, holding evidence, the prosecutors deliberately hiding evidence that would have been of value to the defense. And it was only when she was running for president and being considered too tough as a prosecutor, she came out for Kevin Cooper having DNA testing that was being denied him. They haven’t found any of his DNA on the tests that they’ve conducted.

But when Kamala Harris was District Attorney, and when she was Attorney General of California, you quote her–it’s on page 55 of your book–you quote Lara Bazelon, a very famous law professor who has criticized her for upholding wrongful convictions caused by official misconduct. Evidence tampering, false testimony, and suppression of evidence. In one case, speaking about Kamala Harris when she was San Francisco District Attorney, “her department knew of a lab technician’s misconduct”–I’m reading from your book–“and covered it up. More than 600 cases were thrown out even after Harris contested that ruling. As state attorney general, she took conservative stances on capital punishment as well.” So what I’m saying is the rot in our system goes to the good people. You can’t just blame it on the bad apples in the legal profession. The rot is systemic, and it has to do with money corrupting the best-appearing people, you know? It corrupts them; it corrupts them dramatically, and that’s why 97% of the people faced with criminal charges don’t get representation.

RG: And there’s one thing we haven’t talked about, that before we end this I should mention, because it’s going on in Congress right now, and that is lobbying. Whenever a piece of legislation on a controversial subject like pharmaceuticals or anything like that comes up, hundreds of lawyers and lobbyists–not all lobbyists are lawyers, but many are–hit Congress. There is nobody lobbying for poor people or middle-class people. And you know, one example, I don’t know if it’s in the book or not, but Gephardt–again, another good guy–when he was in Congress, he was a champion of the Armenians and the decades-long complaints of the Armenians against the Turks. When Gephardt left Congress, he became a lobbyist for the Turks. Leibovich wrote about that in the New York Times. And what goes on in Congress, if you talk about the court system being corrupt, the legislative process is more so. Just yesterday Sheldon Whitehouse was talking in his questioning of Amy Barrett about the dark money in politics, and it was a real lesson on what goes on in Congress. So it isn’t just the courtrooms, and it isn’t just the divorce courts and the drunk-driving courts. It’s Congress, and it’s all the institutions of justice.

RS: So I want to end this by taking you back to Bobby Kennedy. You know, and Bobby Kennedy was certainly, as most people, imperfect. And Bobby Kennedy was not always on the side of the vulnerable. But you worked on his Senate campaign in ’64; you knew him. I happened by coincidence–not coincidence, I was following his campaign when he was running for President in ’68, and I was in the middle of an interview with him at the Ambassador Hotel–

RG: Ouch.

RS: –when he said, “I have to go downstairs, but I’ll stay here and I’ll come back.” I was with Jack Newfield out in the hallway, we went downstairs and I was there when he was shot, and died. And I want to–you know, you worked for Bobby Kennedy, you knew him real well. And something happened to him. He came to see that the system was fundamentally broken, particularly as it dealt with poor people and people of color, whether they were Native Americans, whether they were farmworkers who were from Mexico originally, whether they were Black people in Bedford-Stuyvesant. And he had, I think, an epiphany about this. And I see in your book a reflection of that. You’ve spent–you’re not young anymore, you’re 87. You’ve spent a life in the law. You have even three different law degrees, as far as I can figure out.

RG: Four.

RS: Four. You’re a major scholar. You’ve had an incredible practice. You’ve represented people, you know, and so forth. I got the feeling in this book that–and you’ve written a number, what have you written, about 10 books or something? You’ve written a lot. 

RG: Fifteen.

RS: Fifteen. So you’ve had your say. But this book–and I really want to urge people to read it–read it. Because there’s a power–it’s a compelling essay about reality, the reality of the unjustness of American life now. That doesn’t mean other countries have got this solved. It doesn’t mean others do it better. But it’s appalling–it’s appalling that this is the norm. And I want to ask you, in writing this book, do you take ownership of that? That there is something–and how would you relate it to what happened to Bobby Kennedy? That he actually gave his life at the end really trying to–he broke with the Democratic Party leadership. He ran against an incumbent president. So you know, take us to that moment and to your book here.

RG: Yeah. Well, it’s interesting that you go back to that, because actually I wrote a book called Perfect Villains, Imperfect Heroes about our work in the organized crime division. And so I was in the Justice Department all the three years that he was attorney general. When I was recruited, I was reluctant because I was going to be a law professor, and they promised me some big trials. And so reluctantly I said, OK, one year, but I don’t want to work for the Kennedys; Joseph Kennedy wasn’t anybody I particularly liked. But he was a work in progress. And having worked closely with him, and having had some personal experiences with him, which showed him to be a mensch–

RS: We’re talking about Bobby, not Joseph.

RG: Talking about Robert, yeah, RFK. In ways that were not grandstanding moments. I can tell you one that was very revealing to me. My doctorate thesis at Yale Law School was on the contempt power. And when Kennedy was attorney general, they were pushing a civil rights bill, which was eventually passed. And he and Burke Marshall and Archibald Cox were fighting to get a good civil rights bill in, but they put a contempt power in that, right to trial by jury in contempt in those cases, which was the Southerner’s way of saying nobody’s going to find us guilty of contempt down here if we have a jury. And so the Southern senators were reading sections of my book from my thesis, which Columbia University Press published, into the Congressional record. So I was embarrassed by it having hurt the people who were in the department doing what I was proud of. 

So, I called Angie Novello, who was his secretary, and I said I’d like to see the general–that’s what we called him in those days. And so she set up a meeting and I came up to see him, and he said what’s up? And I said well, I think I’m going to resign; I’m embarrassed, Arthur Krock is writing editorials and quoting my book, and Sam Ervin is reading sections of the book into the Congressional record. And he said, well, tell me why you take that position. And I did. It was a civil liberties position, and in fact I actually argued a case in the Supreme Court a few years later which upheld that there should be a trial by jury. So I gave the explanation, and he said, number one, you’re not resigning, and he tears up my letter. Number two, he says, would you sign a copy of your book? And here’s The Enemy Within, let’s swap books, get back to work. Now, that was a menschy thing to do, because here’s a special assistant to the attorney general, where the solicitor general’s arguing in the Supreme Court in the Barnett case there should be a right to trial by jury. And Burke Marshall is arguing in Congress that there should be a right to trial by jury. And they’re quoting me. 

And so these were glimpses of him. And so I wasn’t surprised when years later he went to see Chavez when he was fasting, or when he went to some of the terribly poor parts of Mississippi, and why he had a credibility with these people. That speech he gave when JFK was killed, he was in Indiana and he went into a Black neighborhood and stood on the back of a truck. And I was one of his speechwriters, but I didn’t write the speech; no one wrote it, it came from his guts. It was one of the great speeches he ever gave. He stood up and said, I know how you feel today. I had a brother, and he was killed by a white man. You know, I share your pain. But you can’t go out and do violence. And he had such empathy for them, and they for him. So you know, all of a sudden, a lot of the westside New Yorkers who were against him when he ran for the Senate, and voted for Keating–and they were my friends, you know; Victor Navasky at The Nation, Sidney Zion, they were classmates of mine, and friends. They were saying, how could you work for this tough guy? And I said, you really don’t understand him.

So yeah, I wrote that book. And the title, which is one of my favorite titles, you know, it comes from the Greeks, from the Greek way, Herodotus. We were fighting what we thought were perfect villains. You know, they were murderers and drug and prostitution, in those businesses. And we weren’t perfect. But we didn’t do what Comey did. We didn’t ever, our rule was no press conferences. You know, what you have to say, say it to a jury. We were very strict about it. So I found him to be very much a work in progress. I think the world–you know, not to be hyperbolic, but I think the world would have been very different if he hadn’t been killed that night. I can’t imagine how you must have felt being so close to it. I was actually in his office proposing a major prosecution at the moment that JFK was killed. You know, so in that very short period of time, the world changed. And not for the better.

RS: But again, just to put a cap on it, I don’t want people to go away from this conversation thinking we always know who the bad actors are. Because it’s easy with Trump. We’ve got a lot of Trumpwashing: I’m not Trump, so therefore I’m OK. But the damage that you’re talking about in your book does not come from wild demagogues like Trump. Yeah, they’re a menace. The damage you’re talking about in your book comes from people that you would like to have dinner with. They aren’t foul in their expressions, they’re not misogynist, they’re not wild men, they’re not crude. They’re just, you know: everybody’s entitled to a defense, I happen to make a thousand dollars an hour defending big tobacco or defending military contractors or defending corrupt politicians and bankers. Mostly the bankers. And so there’s a civility that covers this corruption. The corruption that you’re describing is systemic. It comes–like David Halberstam said in his book on Vietnam, The Best and the Brightest. You’re describing the corruption amongst the best and the brightest. 

RG: You’re a good reader of the book. I share your passion. I’m glad you share mine. And yeah, you have to be careful of sounding arrogant and super-virtuous, but I fundamentally believe we are what we do. So I’m not the richest lawyer I know, but I take pride in the work that I did. You know, I’m not ashamed of anything. And I just hope that the law schools and the professional organizations, trial lawyers associations, and the public interest groups will try to make this oceanic change in the morality and ethics of our profession. We are what we do; you can’t hold a neutrality, an arm’s distance from what you’re doing. And you can’t cover it up with ethical rules that in my mind are myths. 

RS: Look, there’s no substitute for reading the book. You owe it to yourself, you owe it to your society. The Price of Justice: Money, Morals and Ethical Reform in the Law. It’s got a foreword, a very strong foreword by Senator Bernie Sanders. It’s a Turner Publishing Company book. And I just can’t recommend it strongly enough. It’s not to be ignored. But that’s it for this edition of Scheer Intelligence. Christopher Ho at KCRW.com, the NPR station in Santa Monica, puts this up where people can listen to it. Natasha Hakimi Zapata does the introduction, Lucy Berbeo does the transcription. And Joshua Scheer is the producer of Scheer Intelligence. See you next week with another edition of Scheer Intelligence. 

5 comments

  1. Loved this interview, Goldfarb was highly enlightening to aspects I never thought of.

    “In the criminal system you are allowed a lawyer but you don’t get one, and in the civil system you are allowed a trial but not a lawyer.”

    Interesting, never thought of it like this.

    Also, not surprised that the “equal justice under the law” phrase at the time it was coined was contrived bullshit. Yet another SMH moment in American history.

    However, it’s easy to explain why so-called legal systems in capitalist societies all the way they are. As Karl Marx correctly said, the economic superstructure is what gives birth to the political and legal structures (Capital v1). It’s all rooted in economics. So you have if you have a capitalist economy (and our form of it was and still is slavery), everything is rooted in the profit motive. And that is no less true for our legal system as it is for our healthcare system, food system, education system, etc. So of course the poor do not have a chance at justice, it was never designed for them to have one. One might point to the right to an (defense) attorney, but when public defense attorneys are so overworked and underpaid to the point they just basically escort you to prison, then you don’t have a real chance at justice. Goldfarb is right, it’s one big homily. True justice is never divorced from economics.

    To borrow a great line by comedian Ron Placone, to say that there are some good lawyers in our legal industry is like walking into a supermarket during an E. coli outbreak and saying “I’m sure some of the lettuce is good“. And Kamala Harris isn’t one of the good heads.

    It would be nice to have a follow-up with Goldfarb or otherwise another legal expert who can do a deep-dive into the economics of our legal system. Not just the poor victims who are essentially pre-convicted before even speaking to a lawyer, but also the internal exploitation that goes on (paralegals for example), how and where capital flows (ex, from the legal industry to the prison industry), the “surplus value” created by prison slaves flowing back out of the prison industry and perhaps back into the legal industry, things like that.

    1. false: USA spends 80$ billion per year to maintain prison; little return is obtained from prison labor..

      1. Nope. While the US spends billions on prisons, there is nevertheless massive profit to be made. Corporations prey upon prison-slave labor, they always have. They wouldn’t be doing this if there weren’t plenty of profits to be made. More than ample documentation to back that up, it’s been discussed here and many others for. years. To pose otherwise is either delusion or gaslighting. Quit trolling.

  2. an extraordinarily shallow analysis from an anti-intellectual lawyer. the US states reflects the values and desires of amerikans, as always (Durkheim). amerikans prefer their politicians to be lawyers. amerikans do not know their own country, nor do they wish to examine their exceptional national character or their peculiar legal system–observed by Tocqueville and their medieval laws
    Riesaman was correct when he described amerikans as “mean and bitter”. Simmel observed that not since medieval times were victims permitted to influence punishment. This medieval fascism exists in 2 backward nations on earth: USA, Australia…due of course the fascist USA masculinists—mean bitter vengeful “feminists”. So despicable are amerikans, that a victim or family member can testify at a parole hearing to prevent release of a prisoner. That US incarcerates more per capita than any nation in history is no accident–nor is it an accident that by 5 to 1 they are non-white.
    The fascist liberals celebrated the mueller investigation; sexually repressed amerikans also impeached Clinton—amerikans imprisoned Manning and continue to imprison Jeremy Hammond. Legal peasant witch hunts are only permitted in 2 backward nations—Liberia, USA (grand juries)
    As Sacvan Bercovitch wrote, “amerikans are blind from birth”; he described amerika as “the ultimate trickster’s paradise”. It is no accident that 2/3 of the lawyers on earth live in USA and nearly 70% of the litigation occurs each year in USA
    “from the inception of ameba it was informed by ubiquitous sleeze and hustling”. Walter MacDougal

  3. Though I know we, as a country, need the help of PRC in the testing. I am kind of still on the side of PRC on this one.

    The word of the President is not the almost 1B php owed to PRC. They aren’t made of money.

    When the government asked, they were really the first to hit the ground running to do the testing properly, not the government. Then the government ended up relying on them continously, without paying them for their services which forced their hand.

    And now, even when it is the government that did the PRC bad in non payment, even when it is the government that needs them, this feels like the wrong route to go to “tell them” essentially to “Get back to work and you’ll “eventually get your money””.

    That isn’t a guarantee they you will pay it immediately and that you will, henceforth, pay on time.

    So I am kind of Sen Gordon’s side that the government should pay in full first and settle their obligations which they stuck behind excuses and lots of red tape.

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