In today’s political landscape, the boundaries between law, policy, and democracy have blurred. The influence of the courts and of lawyers in shaping the nation’s future is unprecedented, highlighting the critical role of those who champion justice.
Our distinguished guest on this week’s WhoWhatWhy podcast is California attorney James Brosnahan. He has been a pivotal figure in this evolution. Brosnahan offers an in-depth look at his experiences. A graduate of Boston College and Harvard Law, he has practiced law as a trial lawyer for over 60 years: five years as a federal prosecutor, first in the Robert Kennedy justice department, and 55 years in private practice.
In over 150 jury trials, serving both as a prosecutor and a defense attorney, Brosnahan’s expertise spans a wide array of issues and cases that have dominated headlines: national security, gender discrimination, press freedom, voting rights, refugee rights, presidential pardons, sexual harassment, and wrongful imprisonment.
Some of Jim’s clients have included the former chairman of Hewlett Packard, the Oakland Raiders, and the “American Taliban,” John Walker Lindh. As a prosecutor, he was called by the Justice Department’s independent council in Iran Contra to be the lead prosecutor for Defense Secretary Caspar Weinberger.
He shares his many cases that have mirrored the pressing issues of our times.
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(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)
Jeff Schechtman: Welcome to this edition of The WhoWhatWhy podcast. I’m your host, Jeff Schechtman. In today’s political landscape, the boundaries between law, policy and democracy have blurred significantly. The influence of the courts and lawyers in shaping the nation’s future is unprecedented, highlighting the critical role of those who champion justice and truth. My distinguished guest, esteemed Attorney James Brosnahan, has been a pivotal figure in this evolution. Jim Brosnahan’s expertise spans a wide array of issues and cases that have dominated headlines: national security, gender discrimination, press freedom, voting rights, refugee rights, presidential pardons, sexual harassment, and wrongful imprisonment.
In over 150 jury trials, serving both as a prosecutor and a defense attorney, some of Jim’s clients have included Marin General Hospital; the former chairman of Hewlett Packard; the Oakland Raiders; the California Redistricting Commission; and the American Taliban, John Walker Lindh. As a prosecutor, he was called upon by the Independent Counsel in the Iran Contra case to lead the prosecution against former Defense Secretary Caspar Weinberger. His many cases have mirrored the pressing issues of our time.
In his new memoir, Justice at Trial, Brosnahan offers an in-depth look at his experiences. A graduate of Boston College and Harvard Law, he practiced law as a trial lawyer for over 60 years, first in Bobby Kennedy’s Justice Department, and then 55 years in private practice. Up until recently, he’s been part of the faculty at Berkeley Law, and it is my pleasure and honor to welcome Jim Brosnahan here to the WhoWhatWhy podcast. Jim, thanks so much for joining us.
James Brosnahan: Thank you so much for having me. You’re very kind and I look forward to this discussion.
Jeff: Well, thank you. It is a delight to have you here today. Talk a little bit about what you’ve seen, first of all, in a general sense, in the way the courts, and big cases, many of which you participated in, have played a larger and larger role in shaping our policy. I think back to the time you were in the Justice Department, Bobby Kennedy’s Justice Department, it seems like policy came from the government and from places like the Justice Department in those days, whereas so much of it today seems to well up from these cases. Talk about that first.
James: Well, you’re right about the transition. And I was always happy to defend the courts, and I still do actually. A lot of judges, great many judges in the United States, and a number of them are not what I would call political, but unfortunately, the present situation is that there are people even on the US Supreme Court who are overtly political. And what is the difference between “political” and law? The difference is the [non-political] judge may be on an issue that’s political, but tries to call it as it is.
Jeff: One of the things this goes to, which is something that has come up in so many of your cases, is this idea of the law versus justice and how they’re not always the same. Talk about that.
James: I’m happy to, because I’m writing a book, another different book, and it’s mostly for jurisprudential legal thinkers and the next chapter is on justice. And it’s very interesting. The word is used so often. We all use it, and we all think we’re trying to do it. And all these judges, lawyers, clients hope for it. It’s such an important thing, that what I’m about to say may surprise you a little bit. Nobody knows what it means. And the reason for that — and this goes right to my law practice for 60 years — is that every case is different. Every murder case is different. There may be a number of murder cases that are prosecutable and should be prosecuted. Perhaps the defendant should be found guilty, but every murder case is different.
And so the application of this justice idea, there are— Aristotle wrote on it, there are philosophers who have written on it, there are philosophers who are writing on it today in philosophy departments, but what does it mean? And it’s kind of a proportionate application of the law to a specific case. For example, there is such a thing, and I have one of them that’s in my book, where the jury decided not to prosecute, even though the law was very clear. The instruction was quite clear, but they decided not to prosecute. There’ve been cases where, for example, someone was abused and then attacked a priest, and the jury didn’t want to convict. Is that justice? I think in some cases it is.
Jeff: To what extent do you think about that and frame that when you go into a trial and think about what the outcome might be and what you have to persuade a judge or jury?
James: Well, you think about a lot in the sense of trying to be current as to what the jury— let’s start with the jury, knowing your audience is everything. It was interesting. So when I started my book, of course, I was told, it’s not about you, it’s about the reader. Well, it’s not about me, the lawyer, it’s about the jury. And who are they and what’s current in society? So knowing about, it’s somewhat relative. That’s the part that people who haven’t tried a lot of cases don’t always understand, that the law is relative.
If you’re going to get justice, then hopefully there’s a full record by lawyers who are well prepared. And then the question is, how are they going to apply that? What do they think? I have a case in the book where a prosecutor was complaining in an indictment that the defendants, who were in the liquor business, what they had done was they had charged low prices for liquor when the federal government regulated prices, [keeping them higher] on a theory that that would make the liquor more safe. It was a holdover from prohibition days and stuff. And that was the charge. Well, Juror Number 3 had a very red face as though he might have consumed quite a bit of liquor.
And this is where you get down to the reality of trial. When the prosecutor said in his opening statement that they charged low prices for liquor, I swear that he crunched up his fist almost as if to say, “What’s wrong with that?” So that’s what happens in cases. Real stuff happens. And that’s what I tried to put in the book. There are many scenes in the book, of courtroom activity at all levels, including the US Supreme Court. And I loved it actually. I loved it.
Jeff: Talk about how it is different in the media environment we have today. So many of the cases that you’ve dealt with involve political issues or policy issues, and that’s very different, first in the polarized world we have today, but also in the way narratives get set today and become a 24/7 meme that sometimes impacts a trial.
James: Well, it certainly does. The issue of outside courtroom discussion, especially in a political case, is very real. The number of reporters, as you well know, has declined drastically. The newspapers in cities have shrunk. And in my book, I talk about a case where I argued that the two newspapers in San Francisco should be allowed to join to save one of the papers. It’s an antitrust case, but it is very interesting, and it shows the difference. The loss of the reporter, for example: There would be a reporter room in every courthouse, and there’d be three, four, five, six seven reporters covering something, so that when a case came up, it was of interest.
They’d all be sitting in the court, and they might sit there the whole day, and they would get a view of what actually happened. We have replaced that with opinions, some of which are very good. They’re mostly about policy and not about facts of specific cases. And then there are people who are interviewed, some of whom are wonderful and some of whom frankly are not. And it’s dramatized in a way that is not necessarily objective. And that I learned very early, as I say in my book, that my audience is the jury, or my audience is the judge, not anybody out in the outside world.
But in political cases, that changes. I finally understood that there’s a great difference between political truth and a jury truth, litigation truth, because jury truth involves cross-examination. You pick some political leader at the moment, who’s talking about this and talking about that, and imagine them being cross-examined by a really good lawyer. That’s a different process.
Jeff: Talk a little bit about your early days in Bobby Kennedy’s Justice Department and how that seemingly set the stage for so much that you would do later, particularly in some of these political and policy cases.
James: Well, I’m from Boston originally before we moved out west. And my father was a great fan of the Kennedys because he saw— this is ancient history, really, but he saw them as examples of the Irish in Boston who were on the way up, and that inspired him. And I always agreed with him on that. But as a federal prosecutor in my early days, I sat in the room and there was Bobby Kennedy sitting up front — he was making a tour of the Justice Department when he became attorney general.
Kennedy called upon each one of us to stand and say how we thought the Department of Justice could do a better job. That set a standard for my whole life on administrators. Do they come into your office? Do they ask [laughs] you how it’s going? In my firm, we have a lot of people who do that. That’s a good thing. If they don’t do that— when my boss said the federal prisoners are being beaten in the jail, Bobby Kennedy turned to his assistant, John Riley, and said, “John, take them out,” just like that. And they were out of there that night.
I had seen the federal government function in a matter of seconds, as it should. And I don’t want to sound like every old person—
Jeff: [laughs]
James: I’m going to be 90. My people say I’m going to be 90 years old, so this is the way we talk. It’s not as good as it used to be and who wants to hear that anyway? But I think that one reason I wrote the book, I hoped that people would see all these scenes in all the cases — on the Mexican border, on the prosecution of Caspar Weinberger, the secretary of defense — that they would be transported to. What trials are really like, what is the law really like. And I tried to make it as accurate and readable as possible.
Jeff: Talk about the difference between the sides [defense and prosecution], because you had already gone into private practice. You had been in private practice and yet got pulled back in as a prosecutor in Iran-Contra in the Caspar Weinberger case. Suddenly you were back on the other side. Talk about that.
James: Well, it took me a little bit to remember that I’m not trying to pull the prosecution apart, which is what defense lawyers do. I’m trying to build a solid case beyond a reasonable doubt. And I had to sit down actually and say, “Okay, you’re a federal prosecutor, you did it for five years, so you must know what you’re doing.” And there was a little transition there, but I got on the program very quickly, and that case was fascinating in that I was in Washington DC interviewing senators and agents for various bureaus and top-secret information and so forth. And I really learned a lot about how Washington works, both the good parts and the bad parts.
We don’t hear too much about the good senators, but I know they exist. They’re trying to do some bipartisan work, and I see them occasionally on TV. But in terms of conveying how government really works, I am not sure that we’re doing that right now, because there are always senators who are reasonable. There is, however, a cloud at the moment in terms of intimidation, and that’s— you have to go back in my lifetime to Senator [Joseph] McCarthy, and he intimidated everybody. He scared everybody.
He scared Eisenhower, who was president of the United States, because he would accuse him of being a communist. And we have that right now. You say something bad about me, I’m going to intimidate you. I don’t understand it honestly, psychologically. We really have— Let’s pick on the Democratic senators. They’re sitting there and they’re not— I’m waiting for one of them to break out the oratory, but it hasn’t happened. There are things I’ve seen, I’ve worked very hard to keep up with current things as best I can, and I’m still doing it with my writing. Actually, I get to research a whole lot of things and I love it.
Jeff: Were there hints of this, even in Iran-Contra and in your prosecution of Weinberger — that the outcome in the trial is not the way the outcome turned out for Weinberger? And that was a very political situation. Talk about that.
James: That was totally political. And there’s some things in my book that have never been exposed before. For example, Weinberger lied to a joint committee of Congress on the subject of weather President Reagan had actually traded missiles for hostages at a time when that was not US policy. I know it’s been done very recently, but that was not US policy. Why? Because then there’s an incentive for other people to grab other hostages knowing that they’ll be able to make a deal and get whatever they’re going to get.
And Reagan made the decision. And then Reagan went on national television and said, and I quote, “We did not trade missiles for hostages with Iran. We did not do that.” Well, that was false. And Reagan, in my opinion, did some pretty good things. I’m not of his party, but he did some pretty good things when he was in there; but that was false. Now, that started months of a coverup, which required almost all the members who were in the room, which included Caspar Weinberger.
Weinberger lied to the FBI. They came to see him and they said, “We understand you keep notes.” He said, “No, I don’t keep notes.” When they left, he got up, he went over behind his desk, which I had a tour of, and he wrote in his notes, “FBI agents in asked me if I kept notes. I told them I do not keep notes.” Now, what you are talking about was on Christmas Eve. Several years had gone by and now Bush, the father, was president of the United States, but he had just been defeated [by Clinton] on that Christmas. He was defeated and he was on his way out.
And on the 16th of December, with the [Weinberger] trial coming in January, his defense lawyer, very able defense lawyer, told the judge he was going to call Bush as a witness, which was amazing. What’s so great about having Bush? Because Bush had been denying he knew anything about it. He had all these expressions. He was down the hall, around the corner, and so forth, and didn’t know about it. But he did know about it. Bush did. Then eight days later, on Christmas Eve, President Bush pardoned Caspar Weinberger and five others. That was the end of the trial.
The first thing we had to research was, can you really do that to save yourself from testifying? Yes, the answer is the pardon power is absolute, which is now a current issue, a very important issue right now.
Jeff: Talk about the media coverage then, back in ’94, when this happened, and what it might be like if that happened today.
James: I think this is a direct cause of the views that people have. Having worked with juries, I’m impressed with the way jurors react to cases over all the years. It’s a collective intelligence. But they’ve got to have the facts. If they don’t get the facts, then the 25 percent might believe that President Trump was cheated out of his election. He wasn’t. He wasn’t cheated. But 25 percent of the people think he was. Now, that’s what we’re facing at the moment. It’s not the people’s fault.
It’s the distribution of news that doesn’t quite have the edge to it that it used to have. And I read three papers a day. I read The Wall Street Journal and the [San Francisco] Chronicle and The New York Times. I don’t read them all the way through. I don’t have to, but I get an idea of what’s happening. But people are too busy. It’s not their fault. They’re worried about the economics of things, and there’s religious influences that come into their political decision-making, then that’s new. That’s really new.
Jeff: Coming back to something you were talking about before in terms of intimidation and the personal aspects of doing the work that you do, and really the attacks that either prosecutors or defense lawyers, particularly defense lawyers, sometimes come in for. You experienced some of that in the John Walker Lindh case.
James: We did. It’s not like we’re the only criminal lawyers ever intimidated. That’s not correct. You represent a despised person, and John was that at the time. He was criticized, and that’s not the strongest word that’s appropriate there, for having been found in Afghanistan as a member of the Taliban army, which is a long story. It’s not in the book. At his request, I didn’t put him in there, and I fully understand why he didn’t want himself in that book.
But as to my part of it, that is in the book, and you get intimidated. I have one chapter on two lawyers in Northern Ireland who were being intimidated regularly for their victories on behalf of Irish nationals in Northern Ireland. They were winning in court, and they were both murdered, separate murders about 10 years apart. And criminal lawyers deal with that. And one of the reasons I wanted to write the book was, why are criminal lawyers doing this? Why do they stand next to people who are accused and hated and all of that?
It’s a very interesting subject and related also to myself a little bit. I’ve always been an outsider in a way. I can put on a nice suit. I used to. When I was a lawyer, I’d go to Morgan Stanley, and I’d have a really nice suit, and I’d pass as something that maybe I lived out on the island, who knows? The [way that criminal lawyers deal with intimidation] is an admirable thing because they do it anyway. They do it anyway, and they do it every day. And if we ever have a dictator, it’ll be the lawyers and judges who stopped them, and they’ve done it before.
They’ve done it before, and there’s some great history. I’m actually writing another book on famous trials and all that, which is fun to do. I love the writing, by the way. I’m just having a wonderful time doing it.
Jeff: Is there a quality that you have, that great trial lawyers have, that makes them willing to do that, to be outsiders, to be willing to stand next to these people?
James: I think so. When I was writing the book, I asked a friend of mine if he thought of himself as an outsider, and he wasn’t sure. I don’t think he’d really thought about it. They know. Criminal lawyers know that if they represent this person who is corrupt or they know this person who murdered somebody, or they represent somebody who defrauded, allegedly, thousands of people out of money with a scheme. If they do that, there are going to be a lot of people in prominent cases that really don’t like them. They know that.
And as I say in the book, they don’t care.
That’s the fascinating psychological question for a criminal lawyer. I’ll give you one example. We had a lawyer in the 1950s in San Francisco who represented a— he actually represented a poem that was written by [Allen] Ginsberg, and it was on the gay life. In the 1950s. His cross-examination of a literary expert is one of the best ever. Lawyers absorb all the facts. Preparation is everything. And you get all the facts, and you read articles, and you get yourself ready to do it.
But there’re going to be people that don’t like you, so what? You can almost hear them say, “So what?” They love cases like that. Here he is, Jake Ehrlich, at a time when gay matters were not discussed by anyone, never mind put in a poem by Ginsberg, the Beatnik poet. So he just jumped in there. He didn’t care what people thought of him.
Jeff: What do you make of all these lawyers or how hard it’s been, really, for Trump to get lawyers representing him, willing to stand up there?
James: No offense to anybody. You have to be out of your mind. You have to be mentally ill, if you’re a lawyer, to work for a man who will get you in trouble. What are your alternatives when you sign on to be their lawyer, his lawyer in particular? You’ll be investigated with some justification. You’ll be indicted, perhaps. You’ll be disbarred, as some are being or have been.
And now, I’m one of about a thousand lawyers in the firm of Morrison & Foerster. And you go to your partners and say, “I think I’m going to represent X, and here’s the problem.” And they’re not happy with that. There was one person who told his partners he was taking the case, and he was out. Now, that’s a little contrary to this idea that we’ll represent anybody, but you have to survive.
Why would you represent Donald Trump? Because you don’t have the slightest control over him at any time. It’s obvious. He does whatever he wants. He says whatever he wants, wherever he says it, in the court, out of the court, you name it. In 60 years of law practice, he is by far the worst client I ever witnessed, and we’re all witnessing him.
So yes, we represent everybody. Everybody’s entitled to a defense, fine, but not if you’re going to get indicted.
Jeff: And finally, talk about what you think that the present environment — the issues surrounding Trump, the issues surrounding the media, so many of the things we’ve touched on here today — what is the net effect of that going to be on the way young lawyers see the business and the way people see the law going forward?
James: Well, I did teach till recently at Berkeley Law, and so I can answer that question based on those students, and they’re nervous. They owe a lot of money usually and they got to pay that off. And they’re not sure where they’re going to practice and what they’re going to do. I think they’re a little bit more nervous than my fellow students when I was in law school in the late ’50s.
But notwithstanding that, a lot of them are very idealistic. And I know that to be a fact because I used to have one-on-one sessions with them to work on their voice particularly. And I know what they want to do, but it’s a structured legal world now and it’s harder, and the time demands on them. That’s why we’re having this work-life balance with the empty buildings and that’s going to stay in some way. That’s my opinion. People are demanding a life and I think that’s a good thing. Probably make them better lawyers.
So the young ones will bring idealism. They will bring a pure view. I saw them, I know them. They’re going to commit to represent poor people, spend their whole lives doing it. I can’t tell you how many lawyers I met over the years that are doing exactly that, making a lot less money than they would if they were in a large firm. Or even if they’re in a large firm, they still do their pro bono. That was another reason I wrote the book, is that image.
The [Rudy] Giulianis of the world — is what, let’s say 12 of them at the present — have given the practice of law a horrible name. And when that happened back in the Nixon days — because there were lawyers indicted because Nixon authorized a burglary — then the whole attitude was lawyers are corrupt, lawyers are bad, lawyers are this, lawyers are that. But we’ll get over that. I think.
Jeff: James Brosnahan, his memoir is Justice at Trial. James, I thank you so much for spending time with us here today on the WhoWhatWhy podcast.
James: Thanks so much. It was fun.
Jeff: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another the WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate
