{"id":3259,"date":"2020-11-02T22:41:55","date_gmt":"2020-11-02T22:41:55","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=3259"},"modified":"2020-11-02T22:41:55","modified_gmt":"2020-11-02T22:41:55","slug":"the-issue-spotter-podcast-episode-1-an-interview-with-ankush-khadori","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2020\/11\/02\/the-issue-spotter-podcast-episode-1-an-interview-with-ankush-khadori\/","title":{"rendered":"The Issue Spotter Podcast, Episode 1: An Interview with Ankush Khardori"},"content":{"rendered":"<audio class=\"wp-audio-shortcode\" id=\"audio-3259-1\" preload=\"none\" style=\"width: 100%;\" controls=\"controls\"><source type=\"audio\/mpeg\" src=\"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/wp-content\/uploads\/2020\/11\/Interview-with-Ankush-Khardori-Final.mp3?_=1\" \/><a href=\"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/wp-content\/uploads\/2020\/11\/Interview-with-Ankush-Khardori-Final.mp3\">https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/wp-content\/uploads\/2020\/11\/Interview-with-Ankush-Khardori-Final.mp3<\/a><\/audio>\n\n&nbsp;\n<p style=\"text-align: center\">(<a href=\"https:\/\/www.bloomberg.com\/news\/articles\/2020-02-15\/trump-barr-fuel-doj-turmoil-over-cases-tied-to-white-house\">Image Source<\/a>)<\/p>\n<em>Please Note: The following transcript has been edited for clarity and concision. <\/em>\n\nChristina Lee : Hello and welcome to The Issue Spotter podcast. My name is Christina Lee and I am the Senior Online Editor for the Journal of Law and Public Policy at Cornell. Today, we are really excited to welcome you to our first podcast ever, so welcome and thank you so much for tuning in. I\u2019m going to turn it over to our Online Associate, Trevor Thompson, who will introduce our first guest. Thanks again.\n\nTrevor Thompson: Thanks, Christina. So, yeah, my name is Trevor Thompson and I\u2019m a 2L here at Cornell Law and I\u2019m very excited to get the podcast rolling for the Issue Spotter. Our guest today, who we\u2019re very excited to have on, is Ankush Khardori. Ankush is an attorney and former federal prosecutor based in Washington, D.C. Until January of this year, he specialized in financial fraud and white-collar crime in the Fraud Section of the Criminal Division of the Justice Department. Before that, he worked at a law firm in New York City and clerked for a judge in the Southern District of New York. He has written on white-collar crime and the Justice Department for <em>The Washington Post<\/em>, <em>The Wall Street Journal<\/em>, <em>Politico Magazine<\/em>, <em>The New York Review of Books<\/em>, <em>The New Republic<\/em>, and <em>Slate<\/em>. He graduated from Columbia Law School. Thanks so much for joining us today, Ankush.\n\nAnkush Khardori: Thank you for having me.\n\nTrevor: Of course. So, for listeners who aren\u2019t familiar, can you briefly explain what white-collar crime is and how its prosecution differs from the prosecution of other crimes, and maybe just a couple quick examples of what is a white-collar crime.\n\nAnkush: Yes, that\u2019s a very good question and a sort of deceptively simple question. It\u2019s a little bit more complicated, I think, than people often think. Originally, when the term was coined by criminologists back in the 1930s, it referred to crimes committed by high social status people in the course of their job, like a banker defrauding a client. That has sort of become reduced: you consider that that is difficult to operationalize. What is a high-status person in the economy and society? So, these days, colloquially, at least, when people refer to white-collar crime in the news or are running studies on the directional movement of financial crime and enforcement over time, they tend to refer to financial crimes. So, that would be things like financial fraud, wire fraud, insurance fraud, antitrust, securities frauds. That sort of thing. There is a lot of debate about whether or not that is an adequate definition, or even whether it entirely conforms to the term as most people kind of understand it. Because I think one thing that it doesn\u2019t capture that I think a lot of people would put under the umbrella of white-collar crime, colloquially speaking, is, for instance, Michael Cohen. Michael Cohen\u2019s lies to Congress or Roger Stone and that we regard more as kind of elite social crime\u2014not necessarily on the job crime, not necessarily financial crime, but crime by social elites. So, I think it\u2019s very useful to actually flesh this out because I think often when you are reading stories on the subject, including my own, I try to be clear on this, people sometimes are not sufficiently clear about what they mean and what you mean by the term can significantly affect if you are diagnosing a problem or the sorts of issues you see in the enforcement landscape and how you go about rectifying them. In terms of how they differ from other forms of crime, if we set aside the freestanding, elite crime concept, which is sort of amorphous, and focus on financial fraud, which I think is the core of what most people regard as white-collar crime, at least casually, a couple obvious things: one is that they tend to focus on financial information, financial data, banking information, whether it\u2019s a wire fraud or a bank fraud or securities fraud, market data, maybe if it\u2019s an insider trading case. They tend to be more data and paper intensive. So, there are occasionally things like wiretaps, and there were in some insider trading cases, as in 2010, but that was very unusual. But, typically speaking, they are often cases that are built around paper, right, so emails, financials, things like that. And so those are the big dissimilarities I would say. I think in terms of a prosecutor\u2019s approach to these cases, there are some major similarities. Generally speaking, if you\u2019re investigating a large financial fraud conducted by a lot of people, whether it\u2019s at a bank or whether it\u2019s a very sort of crude online fraud, the classic way into a scheme like that, which is not that different from the classic way into an organized crime scheme or a drug conspiracy, is to find someone at the lowest level of the organization. Tell them they\u2019ve got serious exposure, ideally, kind of pin them and sort of demonstrate to them that you\u2019ve got them dead to rights and then flip them and work your way up the organization. So, there are some things that make white-collar crime very different, but the fundamentals tend to be the same.\n\nTrevor: Okay. That\u2019s good to know. It\u2019s very interesting. So, you wrote recently in <a href=\"https:\/\/newrepublic.com\/article\/158582\/theres-never-better-time-white-collar-criminal\"><em>The New Republic<\/em><\/a> that white-collar criminal enforcement is in its worst state in modern history, and the subject of your piece was that there\u2019s never been a better time to be a white-collar criminal. Can you explain why that is?\n\nAnkush: So, I think it\u2019s helpful to distinguish long-term from short-term causes. This is not a trend that began under Trump. I tried to be clear about that. It\u2019s gotten markedly worse under Trump. But, these are long-term problems that are a function of institutional issues. There are very, very real resource constraints on the part of the federal government. There are classic revolving door problems: when people get a lot of experience as a white-collar prosecutor, at some point they tend to move back into the private sector. And, as a result, there is an asymmetry in the experience levels of financial fraud prosecutors and the people defending them. And over the last twenty years or so, white-collar defense has become a niche practice of law. It did not use to be that way. So, now every major law firm has a white-collar group, has a stable of former federal prosecutors at the firm who specialize just in corporate investigations or financial frauds. That is a relatively new phenomenon. Over time there\u2019s been a narrowing of certain statutes, which I think has been problematic for the enforcement of white-collar crime. A lot of people can conceive of sort of public corruption cases as one of those nonfinancial elite crimes that we would call a white-collar crime. And the Supreme Court has been fairly aggressive about narrowing the bribery statute, not that long ago, and the honest services, wire-fraud statute, which we don\u2019t need to get into, but these were once core statutes that prosecutors used to go after public corruption and it\u2019s become much harder as a result of the Supreme Court\u2019s decisions under <a href=\"https:\/\/www.law.cornell.edu\/supct\/html\/08-1394.ZO.html\"><em>Skilling<\/em><\/a> in the case of honest services fraud and the <a href=\"https:\/\/www.law.cornell.edu\/supremecourt\/text\/15-474\"><em>McDonnell<\/em><\/a> case, in the case of the bribery of public corruption cases that rely on an official act. So, at the same time, technology has made financial fraud much easier, particularly international financial fraud. You can spoof email addresses, you can get anonymized telephone lines, you can house your emails, your data overseas, which can make it very difficult for the U.S. government to obtain them. It\u2019s relatively easy to get emails from a domestic service provider with a domestic presence and domestic servers. It\u2019s gradually, progressively more complicated when you change any of those variables. And I think the economy, which has been like this and will continue to be like this, has grown increasingly more fractured and opaque, so there are financial instruments that didn\u2019t exist twenty or thirty years ago, in very, very esoteric forms and parts of the economy that are very, very difficult to understand now.\n\nThose are long-term trends, and there have been questions of kind of political will. I think a lot of people regard the Obama administration as having been not as good as they could have been on these issues. I think there are justifiable critiques of their work, but I do they think they were sincere in their efforts to go after financial fraud and white-collar crime, and I think they came up short, and I think a lot of the people who worked on that in that area would freely admit that, and have. So, those are the kinds of long-term trends. I think, as I said, it\u2019s gotten markedly worse under Trump, and in the piece that I wrote for <a href=\"https:\/\/newrepublic.com\/article\/158582\/theres-never-better-time-white-collar-criminal\"><em>The New Republic<\/em><\/a> tried to sketch that out. And that\u2019s a harder thing to look at in a sort of systematic way, because the history is so recent, but I think these attorneys general have not been that interested, Sessions and then Barr. They\u2019ve had other priorities: immigration, opioids, violent crime, retribution for Russian campaigns, if you\u2019re Bill Barr. So, as a result, there have been some policy changes, which I talk about in the piece. Fairly minor policy changes, but at the margins can have a real impact. There have been political interventions in some cases, where political appointees have narrowed or stopped investigations into residential mortgage-backed securities cases that began under the Obama administration and an investigation into the over-prescription of opioids at Walmart. And there have been a whole bunch of personnel issues that I get into in the piece that I think have been unique to this administration as well.\n\nTrevor: Right, right, in the piece you mention that there are some under-qualified attorneys now in the DOJ and that\u2019s contributing a bit to the current state of it.\n\nAnkush: That I think is a fascinating part of this actually because that is an unpopular thing to say. And I think most people who have left the department, for good reason want to remain on good terms with senior DOJ officials: it\u2019s good for professionalism, and it\u2019s good for their bottom line. Those relationships tend to be marketable in the private sector, but I\u2019ve been, I was struck, by the number of people in senior positions in the political apparatus who had no experience as federal prosecutors \u2013 a lot of them have no experience. And then, as a result of the fact that a lot of very well-qualified conservative former Justice Department officials did not want to work in the Trump Justice Department there has been kind of a vacuum. There are plenty of well-qualified, politically-oriented prosecutors from the George W. Bush administration and prior administrations who have not come back, and it\u2019s been very conspicuous. And, as a result, there has been kind of a hole, both at the political level and the most senior career level that has been filled by people who I think you would not have found in those positions in another administration.\n\nTrevor: So, under another Trump presidency, can we expect some of these trends to persist?\n\nAnkush: I think so. I think it can get worse in certain respects. At least in the near-term, it would appear to get better. And the reason why is because there has been such a collapse across the board in all federal law enforcement activity as a result of the pandemic. So, if you look at the numbers on white-collar crime, there has been kind of a steady trend downward, and then it just goes kind of off the cliff around March or April, but that sort of reduction was happening across the board because law enforcement was not as active, and people were not committing as many crimes, presumably, and as a result it got so low that I have to believe it will necessarily inch back up on an absolute basis, even under a Trump administration I would kind of have to believe that would happen, but we\u2019re so far from the proper level of activity, or its peak, that it\u2019s still not going to be enough. But, generally speaking, I would not expect a significant change; this is not an issue that has attracted the administration\u2019s attention, perhaps by design. There are plenty of stories about Trump\u2019s taxes and potential corruption with his properties, and I think the tone from the top matters: I don\u2019t see anyone coming in even replacing Bill Barr in a second Trump administration, or at least keeping a job replacing Bill Barr if they took an aggressive position on these issues.\n\nTrevor: You mentioned also that there are some constraints on resources in the DOJ right now. Could you just briefly elaborate on that?\n\nAnkush: Yeah, I mean this has been a problem forever. In fact, I think the budget has held roughly steady, at least in the criminal division. So, on that score, at least, I think it would be difficult to say much has changed under the Trump administration. Now, I think within that pot of money that the criminal division has, and by the criminal division I\u2019m referring to the centralized prosecutors who work out of Washington D.C. and not the U.S. Attorneys\u2019 offices, the budget has remained roughly steady. What they have chosen to spend that money on has differed, but the resource issue is just a long-term problem, and is a function of the fact that the government does not have enough money, does not have enough people to adequately police the global economy, or at least our economy, under even the best of circumstances. I think we could be doing a lot better, needless to say, even with our current allocation of resources, but if we really wanted to tackle this problem aggressively, we would need, under any administration, a significant increase in financial resources and the number of prosecutors, the number of FBI agents working on these cases, financial analysts, maybe even economists, before we were even having a real discussion about sort of getting our arms around this problem in a real way.\n\nTrevor: So, that\u2019s a good transition into my next question. How might it change under a Biden administration? It seems like if constraints on resources have been a problem for a while, we could expect some of these problems to persist with a new attorney general and a Biden administration.\n\nAnkush: So, that is a very good question and a very challenging question, I think. I think it\u2019s unclear. It\u2019s legitimately unclear at the moment. The question of financial fraud, white-collar crime, has not been a focus of Biden\u2019s campaign, and I get into this on a piece I wrote a few days ago for <a href=\"https:\/\/www.politico.com\/news\/magazine\/2020\/10\/10\/trump-taxes-biden-campaign-financial-crime-425160\"><em>Politico<\/em><\/a>, I think that the Biden campaign, has, for better or for worse\u2014and I\u2019m not a political strategist, so my opining is not that angled\u2014 has been largely reactive to current events and the news. So, their criminal justice platform has been focused on policing issues, racial and equity issues in the criminal justice system, and those are all perfectly good issues that need attention even under ordinary circumstances and have attracted, justifiably, unfortunately more attention under the current circumstances this year, but he doesn\u2019t really have, and has never had, a sort of systematic white-collar crime platform or financial fraud enforcement platform the way that Elizabeth Warren did when she was running for president. So, I kind of have to believe that any competent administration, frankly, even if it were another Republican party nominee coming in would have to be better just because things have gotten so bad, but I would expect there to be at least a sort of drifting back to a baseline level of competence and interest in these issues, even if we didn\u2019t see a concerted effort on the part of the Biden administration or Justice Department, but I think a lot will depend on who the attorney general is, who the political appointees are, and candidly, I think the sort of signals I\u2019ve seen in the press and in the think tank community have given me some cause for concern.\n\nTrevor: So, I read the <a href=\"https:\/\/www.politico.com\/news\/magazine\/2020\/10\/10\/trump-taxes-biden-campaign-financial-crime-425160\"><em>Politico<\/em><\/a> piece, it\u2019s a great piece, and in it you discussed that you think that this should be \u2013 and of course feel free to disagree if I don\u2019t characterize this correctly \u2013 more of a concern for the average American because these financial fraud issues affect millions of Americans. You mentioned at one point that there was a scheme recently to defraud state unemployment agencies using stolen personal information from Americans that cost states hundreds of millions of dollars, and maybe even billions of dollars in fraudulent benefits. So would you agree that this should be more of a concern for the average American and that it\u2019s something that the Biden administration could maybe profitably discuss at greater length?\n\nAnkush: Yeah, I agree fully on both of those scores. I actually think a lot of average Americans are impacted by these issues in ways that we don\u2019t entirely grasp on a day-to-day basis. Obviously, anecdotes are not data, but I do get a surprising amount of feedback from readers on these pieces, talking about their own interactions with fraudsters where they lose kind of a few hundred dollars here and there. I think one reason that this has not become the kind of prominent issue that it maybe should be is that a lot of these financial frauds are very effective because they\u2019re sort of crude and they take a quote-unquote small amount of money from a lot of people, several hundred dollars maybe. To people in the political class or the legal profession and in the journalist class, that\u2019s not a lot of money, but it is a lot of money to 40% of the population which cannot manage a loss of like $400 without going into debt under ordinary circumstances. Now, things have gotten worse, presumably, under the pandemic, but I think the harm that the sort of average person suffers from these scams is not really reflected by the level of attention these issues get in the media or the like. Here\u2019s a very interesting example: I had someone a while back talking to me about identity fraud issues, and mentioned that the kind of victim lists, maybe a couple hundred dollars of charges you incur as a result of an identity theft crime that you suffer. But, of course, a) that can be a lot of money to a lot of people, and b) it can take a lot of time to fix an identity fraud issue. I fortunately have never been the victim of it \u2013 it probably will happen someday \u2013 but you have to deal with credit cards, you have to deal with banks and stuff like that, but the fraud that you mentioned on the state unemployment agencies is operating based on stolen information through identity theft scams. So, what these people have done from overseas is submitting and getting approved applications for unemployment benefits using other people\u2019s stolen identifying information. So, in a way this kind of has come full circle, from the quote-unquote petty identity theft crimes to scaling those up to this massive fraud on the government. So, I hope that these issues get more attention. Certainly in Congress Democratic senators and representatives have expressed more interest in these issues, but I think the public and I guess we\u2019ll call it the elite democratic politicians and commentators and liberal legal commentators have been more interested, I think, under this administration with the more prominent kind of corruption issues surrounding the President, Michael Flynn, Roger Stone, Russia, things like that, and I think what you\u2019re going to see \u2013 for instance the Center for American Progress put out a report with some recommendations saying basically we need to fix a whole bunch of the lines of communication between the professional and the political strata at the Justice Department and the White House \u2013 is that there\u2019s going to be a lot of attention paid to these issues on a reactive basis, and I think it will sort of remain to be seen, if Biden is elected, what his Justice Department would do about the broader white-collar issues. I\u2019m cautiously optimistic, but I think it\u2019s legitimately unclear at the moment.\n\nTrevor: Yeah, maybe if there were fewer distractions with Russia and some of the former Trump administration members they might be able to concentrate their efforts a little bit more on some of these really pressing issues. So, I remain cautiously optimistic with you.\n\nAnkush: So, this is not something I\u2019ve said publicly before but there is an incentive problem among the legal punditry class. This is not to disparage anyone who does it \u2013 I guess I sort of do it \u2013 but one reason those issues tend to occupy a disproportionate amount of attention among the legal commentator class is because it\u2019s a much easier way to get on television, for better or worse, and so there\u2019s this unfortunate sort of feedback loop. I am not sure, candidly, day-to-day, how much people really care about Roger Stone, Michael Flynn, that sort of thing. I\u2019ve written about those issues; I care about them. But, I just don\u2019t know if the media attention and the political attention is an adequate or accurate proxy for overall public attention.\n\nTrevor: Yeah, I totally agree with you. I wanted to ask a question a little bit related to what we were talking about before with Barr and Sessions focusing their efforts as attorneys general on some of the issues that were important to them. So, for Sessions, for example, enforcement of marijuana was an important issue to him, illegal immigration; for Barr, it\u2019s some of the more politically advantageous cases for Trump occupied his attention and you wrote in <a href=\"https:\/\/www.nybooks.com\/daily\/2020\/09\/25\/when-the-rule-of-law-turns-into-rule-by-law\/\"><em>The New York Review of Books<\/em><\/a> that those are examples of the Trump administration ruling by law. And again, correct me if I\u2019m not characterizing this correctly, but by that you meant unlike a traditional authoritarian regime, which doesn\u2019t follow the law at all and just disregards the law, the Trump administration and Bill Barr\u2019s Department of Justice have selectively applied the law to cases that are politically advantageous to them. Can you explain this argument a little bit more in your own words?\n\nAnkush: You put it pretty well. I think that\u2019s a fair summation. I think there are a couple of legal paradigms that we think are at the extreme that we understand about the legal system. One is the authoritarian regime: as you said, they\u2019re not really using law at all; they\u2019re not constrained by law. Think of Nazi Germany in the most egregious form. And then on the other end of the spectrum we have the sort of platonic ideal of a kind of rule of law. This is stuff I\u2019m sure you and your colleagues are learning about, it\u2019s stuff I learned when I was in law school, and it\u2019s held me in very good stead. But, that aspiration to a society ruled by law is an aspiration to a society that has the equal application of laws, laws that we know about and that we understand, that are intelligible,  that we are all treated equally under, irrespective of our financial position, our political position, our political affiliations. As I was looking back over a lot of these cases, like Flynn, Stone, E. Jean Carroll\u2019s case (the government\u2019s intervention in that defamation case), John Bolton being pursued criminally for disclosing classified information in his book \u2013 a lot of people have said that this is a kind of politicization of the Justice Department. I find that term not terribly helpful because law enforcement is inherently political on some level. And it should be political, at least directionally, right? Not at the level of individual cases. So, I think the rule by law concept, which is one that has been developed more recently, or at least systematically in some of the literature, basically posits that you have a society where law is an instrument of the state: they\u2019re using it to achieve their objectives, to control the public, to promote and protect themselves and their political allies, but they themselves are not subject to those same constraints. We cannot hold our political leaders accountable under the law in the way that they hold us accountable under the law. So, I can give you a good example of it, if it would help.\n\nTrevor: Yeah, absolutely.\n\nAnkush: I think that the best example of this sort of juxtaposition is if you look at the Michael Flynn case. Michael Flynn, as I\u2019m sure folks know, was the former national security advisor. He was prosecuted for lying to FBI officials in connection with an interview stemming out of the early stages of the Russia investigation. He pled guilty, and earlier this year, Barr moved to dismiss that charge. He pled guilty in a prosecution that was being handled by Mueller prosecutors, and that was spun out of the Mueller investigation but, after they shut down, Barr and the political folks at the Justice Department intervened to move to dismiss the charge. Now, the theory that they had was that Flynn\u2019s lies could not have been material to any ongoing investigation because there was a draft FBI document that indicated that they wanted to shut the investigation down. On its face, this was an extremely aggressive, highly, highly unusual theory; I think it\u2019s very fair to say unprecedented. I think a lot of commentators have looked for precedents and come up short; I have never been able to come up with one. So, there you have Michael Flynn being the beneficiary \u2013 obviously a political ally \u2013 of a very selective application of the law. Now the reason that this will probably work is not because the government is right about the materiality analysis, but because of the rule that governs whether or not the government can dismiss charges in a pending criminal prosecution. It remains to be seen \u2013 the case is ongoing \u2013 but it\u2019s likely going to be interpreted as being highly deferential to the government. So, I think most people think that the kind of proper interpretation of the rule is essentially if the government has a good faith, plausible explanation for why it wants to dismiss the case, the case is going to be dismissed with the approval of the court. I don\u2019t think that this is a good explanation; <a href=\"https:\/\/www.nybooks.com\/daily\/2020\/09\/25\/when-the-rule-of-law-turns-into-rule-by-law\/\">I\u2019ve written about that<\/a>.\n\nTrevor: Right, I was going to suggest that.\n\nAnkush: Yeah. The mechanism has worked, though, because they pick this rule that probably will allow them to achieve the objective that they wanted, even though the underlying analysis \u2013 as I said, the materiality analysis that they use \u2013 is extremely questionable. Now, that\u2019s Michael Flynn; so, you contrast him with this fellow Kevin Clinesmith. Are you familiar with him at all?\n\nTrevor: Not so much.\n\nAnkush: So, I think his name has flown under the radar. Clinesmith was an FBI attorney who was working on the Russia investigation who had some responsibility for preparing the FISA surveillance warrants that were used to surveil Carter Page, the third-tier Trump foreign policy advisor. Now, at some point \u2013 the facts are a little convoluted \u2013 essentially, he altered an email that was used as evidence to obtain one of the FISA warrants against Carter Page, but he altered it in a way that he believed was accurate and that may have actually been accurate. So, this is an extremely unusual fact pattern, but in that case, the government took a very aggressive \u2013 the same Justice Department \u2013 took a very aggressive view of whether or not that this was a material misrepresentation, and I think it was\u2014I think the criminal charge was warranted\u2014 but a lot of very smart people have sort of come out the other way and have had serious questions about it because the argument goes: could the misrepresentation have been material if it was accurate? The problem with this argument is that the altering of the email kind of blows it up to my mind, but if you juxtapose those cases, where you have Michael Flynn being the beneficiary of extremely generous analysis under the law, and this former FBI lawyer, Kevin Clinesmith, who was a bit of an administration antagonist, getting treated the exact opposite.\n\nTrevor: Right, it\u2019s tough to reconcile. So, are there long-term implications to this? I guess I should say, do you think a precedent has been set for future attorneys general to pursue the same approach to cases like this?\n\nAnkush: That\u2019s a really good question. I think so. I think so, unfortunately; I think one of the things about executive power, historically, is that, when it expands, it\u2019s like creating another tool that\u2019s in a toolbox, and opening up a set of possibilities that didn\u2019t previously exist. And the wrench, if you will, on executive power, is that executive power historically only goes one way; it only really expands, generally speaking. So, that isn\u2019t so say that if Biden comes in\u2026 I wouldn\u2019t expect behavior like this under a Biden administration, for a variety of reasons, but who\u2019s to say, under another administration, with similar interests or a similarly sort of unscrupulous people, that they won\u2019t point back to things like this and say, look, this has been done before\u2014it remains to be seen on Flynn, I think they will succeed\u2014 so we can dismiss a case against political allies for any reasons; it doesn\u2019t really matter. So, I think the question of whether it\u2019s a precedent is an interesting and complicated one; I don\u2019t think it\u2019s going to be linear. I don\u2019t think we\u2019re going to see the Justice Department behaving like this consistently over time. I think it\u2019s going to change based on who we have at the helm. But, as I said, to the extent that these tools get legitimated and courts approve them or feel compelled to approve them, those are tools that go into the toolbox for another administration for another day.\n\nTrevor: Right, right, and with many appointees to the federal judiciary being Trump appointees, do you think these tools are tools that are going to get and enjoy judicial approval for quite a long time?\n\nAnkush: Yes. Yes. And I think that\u2019s a really astute observation, and I think it\u2019s one that we haven\u2019t really begun to grapple with yet, just because so many of these judges are beginning their tenures on the bench. But, I think we have seen, already, some indications that some of these judges on the benches, it appeared from their qualifications, are strongly politically oriented and their legal analyses are geared toward political ends. I think there have been a number of recent rulings by some of these quite young, quite inexperienced lawyers, and now judges, that have endorsed legal analyses that the President\u2019s Justice Department has put forward that I think are very, very questionable.\n\nTrevor: Right, right. Well, I have to remain cautiously optimistic. I could keep talking about this for a while, but we should probably wrap up. I want to thank you so much for coming to join us today. It\u2019s been a really enlightening and fascinating conversation. I want to just pose one final question: what would you say to law students today, such as myself (1Ls, 2Ls, 3Ls), considering careers in the Department of Justice, who might feel a little bit discouraged by some of the activity we\u2019re seeing today?\n\nAnkush: Oh gosh. I think it will get better. I really do. I\u2019m hopeful that Trump gets removed from office; certainly the trend line seems to be pointing in that direction, as far as the polls suggest. And I think that we\u2019re going to \u2013 at least I hope, and there are people, commentators, politicians who are looking into a kind of retrospective effort to kind of restore some of the integrity and professionalism in these agencies \u2013 I hope that we will see some of that under a Biden administration. I think it\u2019s still a great job; I think people should still be thoughtful, even if they\u2019re entering a Justice Department where they don\u2019t agree with the politics, about the work that they\u2019re doing and kind of making the best of it and making sure that they do it in a way that does not compromise their integrity or their ethical compass, whatever it may be, and wherever you may be on the political spectrum. This is not a question that\u2019s only about liberal lawyers, liberal law students and the like; it\u2019s one that conservative lawyers and prosecutors have to consider as well. And I know that can be a difficult one. I mean, I will tell you, candidly, I started at the Justice Department before Trump and after he took office, I was extremely taken aback, demoralized, very upset about it, didn\u2019t know what to expect; I had a very kind colleague of mine, who has been in the profession for a long, long time, she spent a long time in the Justice Department under Reagan and under other administrations, and she reached out to me and said, \u201cI know this looks bad, I know this feels bad. It looks bad. Trust me, most of your work will not change. And most of your work you\u2019re going to feel proud to do and happy to do.\u201d So, even though I think this Justice Department is very troubled and even though I hope that there\u2019s a serious, serious reform effort that is undertaken in a future administration, it\u2019s still the case that most of the work the Department does is work that everyone should be proud about: everyone, like the line attorneys. It\u2019s still the case that it\u2019s a great job where you can do a lot of good and I would say to the people who feel the most qualms about entering the Justice Department, where maybe the sort of outward political views don\u2019t align with their own political views or their own ethical standards, it\u2019s almost more important for those people to enter the Justice Department notwithstanding that because we need people who are not politically pliable and who don\u2019t shift with the winds of the political apparatus, because every lawyer and every prosecutor is an independent moral and ethical agent. At the end of the day, you were on the hook for what you do; it is not enough to be taking orders at the light. So, you know the people who have these sort of questions, which are very understandable, are probably the sorts of people we want to see in those jobs.\n\nTrevor: Right, right. Well, I think that\u2019s a great, great optimistic note to wrap this podcast up on, the first episode of the Issue Spotter podcast. So, thank you so much again, Ankush, for joining us.\n\nAnkush: Thank you for having me, it\u2019s been a pleasure.\n\nTrevor: Of course.\n\n<em>This episode&#8217;s music is titled &#8220;Into It&#8221; by Kwon, and was provided by the YouTube Audio Library.<\/em>\n\n&nbsp;\n\n<a href=\"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/the-issue-spotter-podcast-episode-1-an-interview-with-ankush-khadori\/ttheadshot\/\" rel=\"attachment wp-att-3261\"><img loading=\"lazy\" decoding=\"async\" class=\"alignleft  wp-image-3261\" src=\"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/wp-content\/uploads\/2020\/11\/TTHeadshot-e1604347677360.jpg\" alt=\"TTHeadshot\" width=\"195\" height=\"191\" srcset=\"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-content\/uploads\/sites\/3\/2020\/11\/TTHeadshot-e1604347677360.jpg 1487w, https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-content\/uploads\/sites\/3\/2020\/11\/TTHeadshot-e1604347677360-300x294.jpg 300w, https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-content\/uploads\/sites\/3\/2020\/11\/TTHeadshot-e1604347677360-1024x1004.jpg 1024w, https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-content\/uploads\/sites\/3\/2020\/11\/TTHeadshot-e1604347677360-768x753.jpg 768w\" sizes=\"auto, (max-width: 195px) 100vw, 195px\" \/><\/a>About the Interviewer: Trevor Thompson is a 2L at Cornell Law School. He graduated from Columbia University with a Bachelor of Arts in Political Science. He is an online associate for the Journal of Law and Public Policy. He plans to practice law in New York City following graduation. In his free time, he enjoys reading, writing, and hiking with his dog, Cornelius, who was recently featured on Cornell Law&#8217;s Instagram page.\n\n&nbsp;\n\n&nbsp;\n\nSuggested Citation: Trevor Thompson, <em>The Issue Spotter Podcast, Episode 1: An Interview with Ankush Khadori<\/em>, Cornell J.L. &amp; Pub. Pol&#8217;y: The Issue Spotter (Nov. 2, 2020), <a href=\"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/the-issue-spotter-podcast-episode-1-an-interview-with-ankush-khadori\/\">https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/the-issue-spotter-podcast-episode-1-an-interview-with-ankush-khadori\/<\/a>.","protected":false},"excerpt":{"rendered":"<p>&nbsp; (Image Source) Please Note: The following transcript has been edited for clarity and concision. Christina Lee : Hello and welcome to The Issue Spotter podcast. My name is Christina Lee and I am the Senior Online Editor for the Journal of Law and Public Policy at Cornell. 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