[music] I'm Alexander Heffner, your host on The Open Mind.

I'm delighted to welcome back a friend of The Open Mind, supporter of The Open Mind and a dear friend of my late grandfathers and a distinguished attorney, legal mind, and thoughtful commentator on American law and jurisprudence, Mark Zauderer.

He is the author of the forthcoming book Counsel, The Courtroom is Open, and, of course, Counsel, comma The Courtroom is Open.

Many figures in American political life have addressed you as counsel elected, non-elected, and it's an honor to welcome you back on The Open Mind today, Mark.

Thank you.

It's a pleasure to be with you.

And I only have the fondest memories of a decade of, I think nine interviews with your grandfather.

He was the best interviewer that I've ever encountered and it's an honor to be with you and carrying on the tradition.

So it's a pleasure.

Thank you, sir, and humbled to be in that position.

Let me ask you to start, in so many ways, since President Trump took office again, we've been in uncharted, unprecedented waters.

And it's easy to say that, but I don't think any president in American history has attempted to hold hostage the legal profession quite in the way that we've seen.

And I wanted to just start there given that there have been these rather extraordinary, deals that have been negotiated between law firms, also universities and the White House.

And ask you if it is unprecedented what we've observed in the last six months.

Yes, it certainly is, unprecedented and I think unfortunate.

And I don't blame the law firms for the predicament that they're in.

But there have been some trends, in the legal profession over the last few decades, which I think made them vulnerable to what occurred here.

And so many of the firm leaders found themselves, between a rock and a hard place.

And, we can talk about some of those changes in the legal profession, if you like.

But I think... Yes.

How so?

How so?

How are they making themselves vulnerable from the outset of the administration?

So I think to fully understand this, we have to go back a few decades, certainly to the 80s.

At one time, law firms were small affairs, typically based in a particular city.

The culture was very much promoted and continued from decade to decade.

Lawyers who came up within the tradition of the firm worked their way to become partners.

And they had loyalty to the firms.

Beginning in the 1980s, I think lawyers began to see the outsized wealth that was available for example, those in, you know, investment banking.

When I got out of law school, I didn't know what an investment banker was.

I never heard of, frankly, and there was professionalism in law, just as there was in medicine or accounting.

And as I've said and I said in my book, money was not the coin of the realm.

Professional stature was paramount.

So as the law firms began to expand, they went outside their local culture and they began to expand by looking for agglomerations of other firms based on a very narrow set of criteria.

You know, how much business did they produce, how many clients they had?

And so law firms grew and became more and more what we call the business model.

You know, I saw, and it's true in accounting firms too.

Same time changes have taken place.

I remember seeing a, Super Bowl ad by one of the major accounting firms, and they advertised, we are in the business of accounting.

And I thought to myself, I thought you're a professional, as are lawyers.

You know, we can hearken back to the day when doctors would make house calls and they wouldn't go home until the last patient was seen.

Lawyers found respect and dignity in their community.

And what's happened over the years is the business model has changed.

So let's bring it to the present.

So you have a law firm now, which may have several thousand lawyers.

They've grown by agglomeration units have come from other states, other cultures.

They come in because they have a certain amount of business.

But just as they may not have had loyalty to the firm they left, they don't have loyalty necessarily to the firm they've come in.

And what they want to know is that the dollar is paramount.

And what happened here, and this is where really the pressure in law firms came from when the administration came calling, was they were in a position where they couldn't do business with the government on behalf of their clients, potentially.

They wouldn't be allowed to enter courthouses to litigate cases.

And there was pressure on the manager of the firm to make a deal at any cost.

And I have empathy for those who who manage the firms.

Now, on the other hand, we can talk about that, some firms took a different position, which they said, we're going to fight it in the tradition of law firms being independent and doing what we follow and we think is our moral compass.

And how is it working out for the ones that stood their ground and are seeking either legal or other remedy so that they don't have to pay blackmail or whatever we'd call this, so that they can operate freely.

So far quite well, and they have taken a chance.

They've declined to play ball and they've gone to court.

And in a number of cases, the courts have supported their position and said, look, you know, what's being done here is not right or it's illegal.

How do you compare what the administration has sought from law firms to what they're seeking, from universities?

Ostensibly it's the same problem.

And the administration unhappy with, in the way that they would be unhappy with the predilections of lawyers at firms unhappy with the predilections of administrators or faculty.

And whether they are going to be adversarial towards, this administration.

Do you look at it differently in the university realm?

I think there's the same dynamic at play.

I think you've touched on something absolutely accurately.

It's the, threat of money, the threat of hurting your business.

And just as law firms would be affected, universities are having, their grants pulled money for their science and resources and all the things that universities do.

The administration has used that hammer of money, with both law firms in effect and universities to, the administration to, impose its will.

So in Counsel, the Courtroom is Open, you journey through high profile cases that, where you've represented clients, high profile trials, and you cite a particular change in the incentive structure for the profession in the 1980s, roughly you still observe cases, you still practice, the basic mechanics of litigation and whether they result in fair or unfair outcomes.

Has that changed?

There are some changes.

The mechanics have changed.

Statistics show, for example, that, fewer cases go to trial because they've become enormously expensive in relation to the amount and controversy in a particular case.

On the other hand, there have been some, in my view, positive developments.

We have a burgeoning, field of what we call ADR, alternative dispute resolution.

And it takes a number of forms, mediation, we're familiar with, counseling in, sometimes and I don't participate in these cases, but in divorce cases, somebody kind of working with the parties.

Courts now, much more than in the past, often require before a case can be brought to trial that they have an attempt at mediation.

And I would say that, I'm all for that.

You know, a battle of gladiators in the legal world is interesting.

It gets, blood flowing for lawyers.

But it's not always the ideal solution.

You know, for a client, and in alternative dispute resolution, there are opportunities that are not available in the courtroom scene, which is winner take all.

Loser, lose all.

Maybe you find a way, maybe you have a relationship.

You solve your particular contractual problem.

If you're two businesses and figure out a way, you know, a win win solution where you continue to do business maybe yourself, you dispute in part by one side taking a part of the profits going forward.

So it provides for creative solutions, to problems.

So that is a good thing.

We've had other issues that, I think have, infected the process over the past decades.

We had 20, 30 years ago, beginning of what we'd call, an excess of Rambo litigation where lawyers would engage in combat, often, way beyond the bounds of what would be considered appropriate behavior.

And the profession itself has reined that in by, enacting standards that are expected to be followed.

The judiciary has picked that up and, been more willing than in the past to enforce those standards of behavior, which leads to more civility in the litigation process, which at the end of the day, is better for the clients.

This Justice Department, under Trump two, has taken actions, that suggest it is more the agency of the president, his own law firm, political ambassadors than, arbiters of jurisprudence, or at least impartial arbiters of jurisprudence.

It must be challenging in the present climate to feel as though everything is normal.

The mechanics that I was describing.

When the leading entity of you know, legal theory, at least what we espouse, what we think is the entity that espouses legal theory, the law of the land, is behaving this way.

And seeming to target political figures for prosecution.

This seems to be a rather radical deviation from much of the law as practiced in your life.

Yes, as one lawyer who has been practicing for over 50 years, I'm very sad to see what's happened to the U.S.

Justice Department.

I can remember that as a student, in summer in law school, I was an intern in the United States Attorney's Office for the Southern District of New York, right here in Manhattan, where we've seen a lot of high profile indictments in recent years.

I remember being summoned with the other interns to the office of the U.S.

attorney at the time, who told us about what we do as lawyers, what the Justice Department does, and the emphasis was on being fair, being vigorous if you're a prosecutor, but your goal is not just to convict but to do justice.

And they meant it.

And this idea was imbued early on in lawyers careers.

It wasn't always perfect that there have been instances where one could argue that prosecutions have been unfair, but we never saw a situation where the personnel was manipulated, people were installed, people were fired, all to support a particular agenda and one that's personal.

We've never had a situation, where a leader has said, I'm going to get that person, so find the person and then find the crime that fits the person as opposed to, you know, find the crime and find the person that did it.

And that's what has changed.

And I think particularly those lawyers who have known what the culture was before, many are quite perturbed about that, whether you're a Republican or a Democrat, it doesn't matter.

It's the system that people respect.

Is your sense that there are enough people who believe in the system, as you described it, committed to integrity, impartiality that the legal profession will survive this period.

-Do you believe it will?

-I'm hopeful.

I'm not so sure.

I would go so far as to say I'm optimistic because, while the profession is strong, it also takes public support.

And the politicians have to feel that the public who vote in numbers much greater than those in the legal profession are sensitive to this.

And we see this, you know, when we follow what's going on in the U.S.

Supreme Court, which many feel is very political more so than has been true in the past.

I think it's always been true to an extent.

So, if you ask, am I optimistic?

Will it change?

I'm certainly hopeful.

And there is a principle that I think we've all observed that there tends to be, a pendulum in most acts, in most areas of public life, whether it's in a political election, or, as you know, just the public perception when something gets too much.

I mean, it happened in the McCarthy era, the 1950s.

McCarthy was very popular for a while, but it was too much.

People spoke up.

And even the public, the public behind the politicians, became uncomfortable with it.

It doesn't seem like there's a force that, we're quite desensitized to the behavior of the Trump administration.

I mean, to the extent that President Trump can accept, an Air Force One plane donation from Qatar, and then based on the reporting in the New York Times, be investigating the mayor of the DC, of the district for relationships with that same country.

Now, it may be that the mayor undertook illegal illicit relations with the country.

I think it had to do with staff traveling on some junket.

But here we are accepting a plane from that same country to be the one that carries the president.

And so in this era when we are desensitized to not just allegations of corruption, but actually plain corruption, I wonder if there's any way to flip this script, coming out of Watergate, there were robust discussions and vigorous reforms that were endeavored to be implemented, and only a fraction of them actually, had longevity.

So I guess the question to you is, in the legal profession, are there measures that are preserving not just decorum, but anti-corruption, fairness, that you think ought to be considered, if not by this president, the next president in a kind of post-Watergate mindset of what do we do so that these lines that have been so blurred, are un-blurred?

There are, I think, but whether these get traction and their success is only going to happen to the extent the public is listening and the public is reacting to it.

Education of all of us in the public, those who are not on the ground in the legal system is always difficult.

Law, in my opinion, and scholarship that is part of law, and judging by responsible judges, is really at the highest level of performance in our society.

I do believe that by and large, whether you're conservative or Republican, and even we hear today some who have been Republicans are not happy about what's going on under a Republican administration, they're looking at it not as politicians.

There is a core, I think, of opinion that is within the legal community, that's very positive, very high principle which attempts to set the example.

You know, for our look at public, at the behavior of our government, of our public officials.

It comes from the profession, for that I am proud -to be involved.

-Let me ask you this, is your sense why the wheels are still in motion and, folks are behaving themselves in some measure due to the fact that judges, judgeships are, and I guess the behavior of prosecutors and attorneys on the other side, too, is not as politicized as it is at the Supreme Court.

You think things function better in, the day to day way that the legal system works because it's not hotly politicized?

I think there are lawyers, responsible lawyers, good reputations thinking as a former conservative appeals judge who has spoken out often on TV, about what he regards as, a kind of a perversion, if I may call that of the justice system.

Not only the Justice Department, and what has happened, of course, as we've observed, you know, is the public loses confidence with what's going on.

And I think people of, lawyers of goodwill, have pointed out and are very concerned about the public not losing confidence in the justice system.

And you sited an example before, with the plane purchase or the plane airplane gift and others, you know, that's of a piece.

If the public begins to feel that, decisions, prosecutions, are not done based on the merits.

The system will be damaged because the public perception of fairness is critical for the legal system to function in our society.

One of the things that was so stunning to me was the way that Chief Justice Roberts and presumably the whole Supreme Court determined in the first Trump administration that the Emoluments Clause was basically not relevant like this is written in the Constitution, but who cares?

And it really set up everything in motion for what's transpiring in the second term, that all these relationships that are being forged in the public eye or not just by Donald Trump Jr, Eric Trump and his company, it's simultaneous to the relations being normalized with other countries.

Like it's such a stunning thing still in my mind, that just because that little piece of law had been ignored for all those years, it didn't mean that we should neglect it, or that it wasn't part of the Constitution.

And I just wonder what your sense of that was, because to my knowledge, they basically, Yeah.

good government groups sued to say preserve the Emoluments Clause, and, they in the court said nah, you know, we're disregarding this totally.

Well, I think yeah, we are viewing things now.

Well, maybe we've become inured to certain things that would never have been tolerated 30 years ago, 40 years ago.

What we today see as routine practices, we read about them in the newspaper, they would have been cause for horror 50 years ago.

Look at the Nixon situation.

What Nixon did was considered unprecedented what some observed is the kind of things that are going on today, you know, are orders of magnitude more serious than what was involved in the Nixon administration.

So I think we've become somewhat insensitive to it.

And speaking, for example, of the Emoluments Clause, when you're looking to determine or a court's looking to determine what something means, with all the talk we hear about originalism and what something mean at the time to the Constitution?

We know that in practice, even in Supreme Courts, the eras that have been largely conservative, society moves on.

We view things through the lens of the present.

We may talk philosophy of originalism, but there are things that the courts take for granted today would never have occurred years ago.

You know, same sex marriage, all the things that we, you know, see today, nobody would challenge, you know, it was until the 1980s, I believe, when the Supreme Court reversed itself when states could prosecute, homosexuality.

There were and, you know, finally, in 1986 Supreme Court said, well, can't do that.

Well, that's because we look at things differently over time.

And so, you take the Emoluments Clause today, it may be looked at differently than it was a hundred years ago as a result of what's happened in society.

So for our viewers and listeners, I wanted you to preview, without revealing the tantalizing detail that you will in the coming weeks and months.

Counsel, the Courtroom is Open.

A former governor, not, Andrew Cuomo, Mario Cuomo made the suggestion to you once upon a time that you collect your stories and, memoir, autobiography, what to you stood out in reflecting on your journey in the law.

You know, again, I don't want to spoil it, and I want people to go and get your book.

what was maybe upon revisiting, more urgent in your memory, now than it was as you collected all these stories?

Well, well thank you for for asking.

I mean, this book was in some sense for me, but in a broader sense for my son.

And the authors profits are being donated completely to my son's charity, Grassroots Grocery, which feeds people in need in New York City, you know, food that they're able to find to distribute.

But it was a time for me to reflect on how the years crept up on me.

And I felt, you know, in all these years.

I've done a lot of things that when I was much, much younger, I would look at other people who are old and say, how did they do all these things?

So, I thought it was time to recount.

But part of it is a personal about the story, about a personal journey, maybe a third of it, and my way to law school and the things I learned, some of the issues, personal issues that I had along the way, which I figured I would be candid about because it was part of my life.

Some of it, I hope, is historically interesting.

I was going to be at least out of college for a while, a rock and roll disc jockey.

But Uncle Sam was going to take me and fly me to Vietnam and put me in the rice fields, so, they weren't, deferring, disk jockeys from, the other hand I had mixed feelings at the time, I describe, if the war was going on, I was going to be an officer, jump out of an airplane and, I describe taking a test and how that worked out.

But, and then some interesting, I think, were interesting accounts as I grew up coming into contact through my parents and my parent, I talk about my parents divorce in the book, which had a very big impact on my life.

But as I got into law, something inside me said, I want to do it by myself or with others in an entrepreneurial way.

And I tell the story of how five of us started out essentially with nothing.

And went from there and said, we're going to do it.

And I tell some of it I think is humorous.

How I went to a bank, went behind, you know, I had never been beyond the teller's window in a bank.

And suddenly I'm looking in a private banker.

I call Muffy, Buffy and Tuffy, and we're taking, you know, to a back room and somebody with white gloves, an older man pours a pitcher of coffee and we discuss a line of credit.

I hardly knew what a line of credit was.

So, anyway, year went after year, and, I found the law an exciting place to be.

You know, there's nothing more motivating than circumstance where you decide to leave a salary job as a young associate in a law firm, and your salary gets cut off on Friday.

And you said you have to do it yourself.

You know, if you want to eat, right?

So that's motivating.

Well, life has been good and I hope in this book, which is really the thing that would give me most pleasure, is to see young or newer lawyers, as well as other people, who are thinking about what they want to do.

I hope they're inspired by some of the events that occurred here.

And one thing I say, there is a chapter on this.

I said, you know, you learn much more from your failures than your successes.

You have a success.

You say, I'm great, I'll keep doing it.

But if something didn't happen right, or you made a bad error of judgment, you learn from that.

And I tell that through the tales of some of the cases that I've been involved with over the years.

And I hope also to convey, communicate that as a lawyer, perhaps your greatest attribute is not just the knowledge of the law, but how to bring it to bear to people's experiences.

If you're arguing an appeal or trying a case to a jury, it's not just about what you're saying.

It's about how you're communicating.

And above all, I think the greatest skill a lawyer has is not how to speak and what to say, but how to listen.

And I know for me, that's something that has helped me for whatever success I've had through the years.

Because it's by listening that we're able to get out of ourselves, and if we want to persuade someone or help someone with a thought, you can only be useful if you understand how they're thinking.

So if we're just talking at people, whether it's a jury, a judge, or a client, and we're just talking at them, we're not perceiving what they're getting out of that because we don't know what their filter is and what their emotions are at the time that's been... Absolutely, Mark, I am grateful for your insight.

Thank you for sharing.

And I look forward to seeing you again in person soon.

To our viewers, please check out and order a copy of Counsel, the Courtroom is Open: Lessons from More Than a Half-Century in Law and Life.

It's candid, authentic, and, really tangible.

As Mark says, thank you for your insight today.

It's out there on Amazon and all, you put it in Google, you'll see it's all going to be coming to the bookstores in April.

But you can preorder it.

I'd be honored anybody did.

Thank you very much.

Thank you, sir.

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