The Oath with Chuck Rosenberg
Carol Lam: Her Honor
Chuck Rosenberg: Welcome to The Oath. I’m Chuck Rosenberg, and I’m honored to be your host for another compelling conversation with a fascinating guest from the world of public service. This week, my guest is Carol Lam, a former judge and federal prosecutor in California. Soon after graduating from Stanford Law School, Carol found a job she loved in the Justice Department as a federal prosecutor in San Diego, where she handled complex health care fraud investigations, and though she enjoyed the work, she later accepted an appointment to the California Superior Court Bench from Governor Gray Davis. Carol envisioned a long tenure as a judge, a difficult and complex job. But that all changed when she became the presidential appointed United States Attorney for the Southern District of California, the office in which you started as a prosecutor. Carol is a thoughtful and contemplative public servant with important insights into our criminal justice system from two very different perspectives. She is also my colleague on NBC and MSNBC, where she is a legal analyst. Carol Lam, welcome to the show.
Carol Lam: Thank you very much, Chuck.
Rosenberg: Real pleasure to have you on the show.
Lam: Pleasure to be here.
Rosenberg: So where are you from?
Lam: I am originally from New York City. I was born there as were my three siblings, but my parents are from China. They were both born there. And both emigrated here in the 1940s.
Rosenberg: So you and your siblings were all first generation American.
Lam: That’s right.
Rosenberg: And what brought your parents to the United States?
Lam: My father was a businessman. My parents’ stories were so much more dramatic than my own as it’s probably true for so many first-generation US citizens, but my father’s father actually was a banker. And during the rising communist revolution, he was bedridden with a stroke. And he was asked by his colleagues at the bank whether he could take the fall for being a capitalist since he was already sick, and they probably wouldn’t do anything to him. And he agreed to that. And so, after he died, the bank thanked him by moving his family and his wife and his remaining children out to Hong Kong.
Rosenberg: So, he literally took the fall for being a quote unquote capitalist during the rise of communism in China.
Lam: Almost everybody in China, especially those in the middle class or upper class, probably middle classes where I would put my father’s family–almost all of them have some really difficult, extraordinary story. It’s painful to listen to. It has made me realize how much I value my marriage and passport frankly. Before that, my father had gone to St. John’s University in Shanghai, and he had wanted to be a journalist. And so, he started in the journalism department that closed down because of the war. So, he then thought that he would try art, they closed that department down. And so, he went into business. And I’ve often thought about him because he had wanted to study law eventually, circumstances just didn’t make it possible for him. And I remember how proud he was when I sent him the transcript from my first trial, which was just a bench trial of a juvenile and how proud he was reading every word of that transcript. So, my father eventually came over here to do business. He worked for the Import Export branch of a bank in Hong Kong, and he came to head up the United States division of that. And he met my mother here. My mother had come here. She called herself a spoiled child from Shanghai. She had gone to a British school called “Matière,” and then she had gone to St. John’s University as well.
Rosenberg: But they didn’t meet there.
Lam: They did not meet there, interestingly, neither did my grandparents, but that’s another story. My mother came here to study for a year on a study abroad program, a study abroad program like we might send our children to these days to go study in Europe or Australia. She didn’t know what she wanted to do. She went to Ohio State. She didn’t know the difference between Ohio, New York or California, Ohio back then was not Ohio today. She was asked, she told me by another student, whether her father who was a well-regarded physician in Shanghai, whether her father or a pigtail–like you might see on TV back then. She ended up not being able to go back to China because her father wrote to her and said you might not want to come back right now stay there where you are because the year was 1949 and the communists were marching on Shanghai. My mother was not able to go back to China again until 1973.
Rosenberg: A quarter of a century later.
Lam: A quarter of a century when she’d only intended to be gone for a year, she never saw her mother again. And she was able to see her father before he passed away. But in that time, China had changed so much–written language had changed, she could no longer read the newspaper in China. And that is all as weighed on me what it would be like to leave–if I were to leave America for what I thought would be a year, and then not be able to come back for a quarter century and come back and not be able to read the newspaper anymore.
Rosenberg: Because it changed the language out from underneath you.
Lam: Yes, the communist Chinese had decided the Chinese written language was too complex, which, alright, I have to agree with them: it’s pretty complex, and they’d simplified the written language. But it was simplified to an extent that if that was the language that you had grown up with, it would have to relearn it.
Rosenberg: Your mother and father settled in New Jersey eventually, and that’s where you were raised with your siblings.
Lam: That’s correct.
Rosenberg: Tell me about that.
Lam: I had a wonderful childhood. I was very privileged childhood, my parents valued education. My father because he, because he was a businessman, money was tight for a while and things loosened up a little bit as we got older. They made sure we got a good education. My father was a classical music fanatic, he played some violin, some viola, but had never gotten much training. My mother was a pianist, and they made sure we all got musical education as well.
Rosenberg: And you became quite good, quite proficient.
Lam: Well, that depends who you ask. I would not claim that but I could play well enough that I was able to participate in school bands and orchestras and such and I really believe that for children, having something that requires cumulative effort and daily practice, whether it’s sports or music, any activity, whether it’s team or solo, it’s the most important thing you can do because it’s a wonderful combination of talent and hard work and it teaches you a lot of life lessons. So, my parents gave us all of that and I’m immensely grateful for it.
Rosenberg: Now, I think you’re being somewhat humble because at Yale, where you went to college, you were the president of the Concert Marching Band and at Stanford where you went to law school, you were the principal flutist, I think I’m saying that right, in the Stanford Symphony Orchestra.
Lam: I love playing the flute. And I started on piano, I took piano for 12 years to my childhood, I went to the Manhattan School of Music preparatory division, to say that I was the president of the Yale Band–that probably speaks more to my managerial abilities than my playing abilities.
Rosenberg: They needed someone to keep the books,
Lam: To keep the books and to keep the wild cats in order. I don’t know if you’ve ever seen the Yale Precision marching band, but the name is a little facetious. But that was actually my first real managerial experience was running the Yale band and it was a great experience.
Rosenberg: You tell a nice story about a piano teacher that you had a lesson that you learn from her when you were struggling with a new piece.
Lam: I had a wonderful piano teacher at the Manhattan School of Music, Her name was Rosetta Goodkind, she had been a bit of a child prodigy herself when she was young. I remember going to her home in Manhattan for lessons, she would patiently listen to me play a piece, and then I would make a mistake. And I would go back and try it again, I would make the same mistake. And I would do that four or five times. And finally, she couldn’t stand it, and she would stand up and she went over to the door to her apartment, and she walked right into the door—
Rosenberg: –on purpose.
Lam: On purpose. And then she backed up, and she walked into the door again. And she backed up, and she walked into the door again. And she turned around and she said, “You see, if you make a mistake, and you just do it again, and then you do it again. And then you do it again. All you’re doing is teaching yourself how to make that mistake over and over again. What you have to do is you have to stop and you have to figure out why you made that mistake. You have to correct it, and then you practice it correctly.” She showed me how to fix my mistake on the piano. But that was a life lesson, it was much broader than playing the piano. It was about how we act as human beings, and how, essentially, human beings are always looking for the easy way out. And we think that if we thoughtlessly just do the same thing over and over again, we’ll somehow get better at it, but we don’t,
Rosenberg: Meaning that the door might have been open, then you might have walked through it. And it might have just been luck.
Lam: That’s exactly right. I mean, what she said was, every now and then you might hit the door four times. And then on the fifth time, you might get lucky and the door might be open. And you might think to yourself, “I’m talented,” but you didn’t fix your mistake. You just got lucky that one time, so don’t mistake luck for hard work.
Rosenberg: Your father was a businessman and a music aficionado. You had a background in music. What drew you to the law? Why did you end up going to law school at Stanford?
Lam: Well, my joke is that I went to law school because I was pretty terrible at math and science. If you were at Yale in the Late 70s, which is when I was there, if you were Chinese, people thought that you were naturally assigned to a math major. And boy, did I have a surprise for them. I majored in philosophy and I minded in political science. And I think I’d always been interested in not so much in history, but in organizations and how organizations work, how countries worked, how the philosophy of how groups of people end up behaving in certain ways,
Rosenberg: How they organize themselves and govern themselves.
Lam: But also, how individuals end up being influenced by the organizations they’re in. I think that was just naturally something I was very interested in. And I think what influenced me about law school was what is it like to be an American citizen, and when I was–I did apply to law school, my senior year of college, I decided to take a year off and in that year, I traveled both to Europe and I actually lived in China for about four months, and I taught English there at a university in Shanghai, which was the city my parents were from, it was not yet a very open society, it was 1982. The country was starting to open to the west, but it was still very communist–people wore Mao jackets every day in the streets. It was sort of an oppressed feeling in the country. One of the things that I learned was how much I valued my American passport. And I also realized that in a country where so many decisions are made for you: where you’re going to live, how many children you’re going to have, where you’re going to go to school, it made me realize that your world gets smaller and smaller. When you can’t make the major decisions in your life, your world gets very small and very petty things start to matter a lot to you. This all plugged into my decision about why it was so important to go to law school, so it was a very good fit for me.
Rosenberg: So, law school makes sense–why law enforcement? Because very soon after you come out of law school, you clerk on the second circuit and you end up being Coming in assistant United States attorney in San Diego, California. How does that all happen?
Lam: You know, when I was going to law school, it really wasn’t so much like it was today. I have a son who just started at Stanford Law School. And it really strikes me how much more directed most law students are today, they seem to have a pretty strong view about what they want to do. I feel like I was so naive when I entered law school. And I don’t know whether naive is the right word. I feel like I was naïve, but I also had just a tremendous freedom to learn what I wanted to do while I was in law school. And so, I’d say that for the first year and a half, I probably had no idea what I wanted to do with a law degree. But what happened was in the second half of my second year, I took a trial advocacy course–it was an elective–and it was sort of a mock trial team. And you know, these days, it seems like eighth graders do mock trial. I had no idea what trial work was like. I was partnered with a one guy in my class who he went on to found and head, one of the best litigation firms in California, so he’s a very talented guy. His name is Mike Leslie. We were the defense team for an accused hypothetical murderer. And I remember standing up to do closing argument and thinking, wow, I love this. I love standing up here and trying to marshal the evidence and trying to persuade a jury. I remember one of my lines was, “you’re going to find my client not guilty because you can’t be guilty of something you didn’t do.” And I just remember thinking that just sounds so eloquent.
Rosenberg: Look how clever I am.
Lam: How clever I am, yes, but the idea of using language and logic and analytics to try to persuade people of your point of view, I had never done speech and debate or anything like that. I was bitten by the bug, too. In short, I went on to do a clerkship and my clerkship was in the Second Circuit.
Rosenberg: We should explain what “circuits” are ball–our listeners are really smart, bhey may not understand the organization and structure of the federal courts.
Lam: The trial courts are divided by Judicial District, and they’re 94 of them in the United States. And then there are larger breakdowns, and those we call the circuit courts. And those are for purposes of taking appeals from the trial courts.
Rosenberg: And this is the federal system you’re describing.
Lam: That’s right. This is the federal system as opposed to the state system. We have two parallel court systems in the United States. There are the state courts, which they try violations of state law, and the federal courts. which try violations federal law on the criminal side, at the point at which I clerked on the Second Circuit, my family was still in New York, I had a Stanford Law degree, so I was sort of bi-coastal at that point.
Rosenberg: The Second Circuit covers a number of states but most prominently includes in New York State.
Lam: I should add that before I started my clerkship in my last year at Stanford Law School, I actually did an externship in San Diego on the trial court level, and I remember, I had no idea what happened in federal court. And here I was sitting in the courtroom. I was awed and a little bit afraid because I was afraid I was going to do something wrong sitting there, so I was sitting very still, the doors open and all the attorneys came in, and a very handsome woman from the US Attorney’s Office came in and she went up to counsel table and they called the case, she stood up and her name was Joan Weber. She later became a superior court judge. And she said, “Joan Weber for the United States, Your Honor.” And I remember thinking, what the heck is that? And then I remember thinking, that is so cool to be able to stand up and say, “I am here for the United States.” I feel so lucky to have had that moment where a bell goes off in your head and you think, I’m not sure what that is, but I want to do that.
Rosenberg: It’s funny you tell that story, Carol because to this day, and I know it sounds corny as heck, every time I stood up in federal court and said “Chuck Rosenberg on behalf of the United States,” chill went down my spine, it still does saying it here to you now in this little recording studio, brings back such good memories of the privilege of representing the United States of America in federal court.
Lam: Exactly the same feeling. It’s a feeling of all and of privilege.
Rosenberg: After your clerkship on the Second Circuit, the federal appellate court that covers among other states, New York State, you became like Joan Weber, an assistant United States attorney,
Lam: As you say those words, a chill goes down my spine because it was the most exciting moment in my life. When I heard that I was being offered a job as an assistant US attorney—
Rosenberg: Who hired you?
Lam: Peter Nunez hired me in the US Attorney’s Office in San Diego. I pretty much narrowed down my job search and then the Southern District of New York narrowed it down further for me because—
Rosenberg: And they rejected you.
Lam: They rejected me and my then boyfriend, fiancé was getting his PhD in San Diego. So that was the other natural place to apply for a job. And I did get a job there. So, I moved out there.
Rosenberg: And just for our listeners, your boyfriend slash fiancé is actually now your husband.
That’s correct. And we still live in San Diego. So, it’s funny because when I took the job in San Diego, I remember when Pete gave me the job offer. He said, “Well, you know, we asked for a three-year commitment.” And I remember thinking three years. I’ve never done anything for three years in my life and I say swallowed hard and reluctantly said, “of course, yes,” And 14 years later, I was still an assistant US attorney and loving every minute of my job.
Rosenberg: What was the best part of it?
Lam: I think the best part of being an assistant US Attorney, as opposed to many other types of legal jobs is it’s as much a course of self-discovery as it is about doing your job. And when you’re in a grand jury room, and you have a witness on the grand jury stand, and there are up to 23 grand jurors in the grand jury room. And you’re questioning the witness and it might be a hostile witness. But there is no defense attorney in the room. The witness’s own attorney is not in the room, and there’s no judge. You really learn a lot about yourself, and, you know, to be given that much responsibility and that much discretion for how you impact somebody else’s life. I remember having a case, it was a very sad case. It was essentially a young man who had kidnapped himself.
Rosenberg: Can you explain that?
Lam: He had some mental problems and so he took himself to Mexico, and then he wrote a ransom note to his parents and said, “We have your son, bring $1,000 to this mailbox at this time and leave it there or you’ll never see your son again.” So, the parents who lived in Florida called the police. The police call the FBI and the FBI set up a Sting, essentially. And they did a drop of the thousand dollars or a package at the mailbox.
Rosenberg: Did they know that the victim was also the perpetrator, to use a cop word?
Lam: They did not. And so, they were trying to catch the kidnappers, essentially. Then on the videotape, they saw that it was the young man himself. We charged him with some appropriate federal crime about faking a kidnapping. And I remember, I was such a young, new assistant US Attorney. I wasn’t sure how to proceed. But I thought, well, I need to have the parents testify. So, I subpoenaed the parents and it was lovely, older couple. We flew them from Florida to San Diego, and I talked to them in my office. And I had them testify in the grand jury about how their son had committed this crime, their son who they loved very much. And I went home that evening, I said to my husband, “you know, I talked to these parents and I thought why are they cooperating with me? I’m prosecuting their son. And yet they were, you know, answering my questions and they weren’t giving me a hard time.” And my husband looked at me and he said, “I think they’re afraid of you.” I was 27 years old at the time, and I thought, “they were afraid of me?” And that’s when it really hit me that by virtue of my title and my position, this grant of authority I had been given by the United States, I had a huge responsibility. And I think it was a privilege to be given that responsibility and to be given the opportunity to learn how to exercise it responsibly.
Rosenberg: I have a larger philosophical question for you. You were a philosophy major at Yale. Was the young man mentally ill? Was it a fraud? Was it a cry for help? What about it merited federal prosecution?
Lam: That’s a very good question. And in all honesty, if I were to receive the same case today, I don’t know if I would handle it in the same way. I was so young and so new that I thought, well, I have to follow the rules. He used law enforcement resources that he used their time. I remember the the biggest factor for us was he created a dangerous situation with this drop. We had agents out there with guns and who knew what might happen. But today with the benefit of hindsight and experience, I might say, this is not the best way for everybody to handle the situation. This young man obviously has some issues.
Rosenberg: You know, it’s interesting, Carol, because I think about cases I prosecuted as a young assistant US Attorney in wonder whether I would do it the same way as a more experienced federal prosecutor. I remember once putting a young man into a grand jury to testify against his father. It’s nothing I relished, but the grand jurors who heard the case were actually mad at me. We were all, I think, disquieted by the notion that we would put a young man of 19 or 20 or 21 in a grand jury to testify against his father, that was not an easy thing to do. And to this day I think about it.
Lam: We all learn, it’s what I tell young people starting out now is think about your mistakes. And think about how you would have done things better, or could have done things better, because it’s the only way we really, truly learn. I’ve probably interviewed more than 1000 people for jobs over the last 25 years. And I always asked them describe a time when you were dealing with people and you feel like you sort of screwed up. And the worst answer to that question I’ve ever heard, and I’ve heard it several times is “well, gee, you know, I really try hard not to make mistakes, so I really can’t think of anything,”
Rosenberg: Not a good answer.
Lam: Not a good answer, because what that tells you like hitting the door over and over again, is that you never really learn.
Rosenberg: But what is so difficult for me is that I’m not sure I made a mistake. I don’t know how to think about what I did. It will be easier if it was a mistake and it was obvious and that I shouldn’t have done it and I won’t do it again. Again, but that’s not clear to me, I guess I’m trying to say is that in this line of work where we are entrusted with so much responsibility, there’s a whole bunch of gray.
Lam: Well, that’s the nature of judgment and how we start sliding, we hope, towards wisdom, as opposed to just being capable, or just being clever. Wisdom is, I hope the first step towards great leadership.
Rosenberg: A lot of your career as a federal prosecutor involved the prosecution of healthcare fraud, including very large health care fraud cases, can you say a few words about that?
Lam: Probably one of the most gratifying efforts I had as an assistant US Attorney was tackling fraud against the Medicare program, particularly in the area of clinical blood laboratories. And what we found was a very interesting billing and marketing scheme that resulted in tons of unnecessary tests being run on people’s blood samples and then billed to government health insurance programs. And what was great about this effort to me was it sprang out of a large case I did that got a criminal conviction of the president of national health laboratories, as well as 100 million-dollar fine against the company and $10.4 million reimbursement or judgment by a group of Medicaid control fraud units. So, the state insurance programs–and at that time in the early 80s, that was huge, it was 20 times larger than the next largest judgment that had ever been gotten–out of that case, we realized that this sort of marketing and billing scheme was being done by a number of other very prominent, publicly traded corporations. And that’s what made it so interesting and so challenging: these were all very public companies and—Smithkline, MetPath, West Corning, Damon Clinical Laboratories–all very reputable companies. We did a coordinated criminal and civil enforcement effort against seven blood laboratories, and it required a huge amount of coordination with the DOJ, Civil Division, the Criminal Frauds division at DOJ, three law enforcement agencies, eight different US Attorney’s Offices. And what it really required was everybody putting aside their territorial concerns and doing what was best for the country. And at the end of the day, we got more than $800 million dollars–and this was actually money back into Medicare’s pockets. This was not just a judgment that we couldn’t enforce because these were all publicly traded companies. And we got a couple of criminal convictions. We got some criminal convictions not only as individuals but also of certain companies. But what it really did was because of the selfless nature of the entire project, we created a blueprint for future healthcare fraud prosecutions of the major corporations, how to coordinate with the state’s, how to coordinate between civil and criminal, and how to coordinate among different offices in the same Justice Department. And Chuck, you know how hard that can be sometimes. I actually had an agency official, when I explained to him that we were all going to do these investigations together, and at the end of the day, we would decide where the best place to prosecute them would be, he actually looked at me and shook his head and he said, “Well, I’ll believe that when I see it.”
Rosenberg: And he saw it,
Lam: And he saw it, and it required, I don’t know if you remember Joanne Harris, but she was chief of the Criminal Division, a wonderful woman. It required a sit down in her office with everybody there. And we all laid out what we had done, and she made the decision where those prosecutions were going to go, and everybody accepted it.
Rosenberg: You tell an interesting story about your time in the US Attorney’s Office when you were pregnant with your first child, and had a meeting with a number of defense attorneys on a fairly sophisticated health care fraud case.
Lam: I was pregnant with my first child in 1989. When I had to tell my supervisor that I was pregnant, I was also in the middle of being second chair on the grand jury investigation on one of the biggest cases the office ever ended up doing. I remember having to tell my supervisor that I was pregnant. You couldn’t work from home very effectively back in 1989. We didn’t have laptops and they’ll had push button phones. And so, if you were going to work, you really had to come into the office, and I was very, very sensitive about not being written off as a young prosecutor. I was first chair on this large healthcare fraud case. And the targets were being represented by very large law firms, all from the New York area, and so we didn’t have that many in person meetings, but at one point to the three older white males partners at this law firm were coming out to talk to me. And let me also say that maternity fashions back in the late 80s were not what they are today. And when you were pregnant, you really looked pregnant because you were basically wearing smock like outfits. So, I asked my assistant to set everything up in a conference room, I sat behind the table, and I said, “Look, I’m going to sit behind the table, would you please bring them into the conference room.” And so they filed into the conference room, I sort of half rose out of my seat, and I had a file folder in my hand and I sort of covered the front of my body as I shook their hands and I was eight and a half months pregnant. And I had decided I wasn’t going to let them see that I was pregnant. And we had the meeting, they left the room after the meeting, they didn’t know that I was pregnant. I had the baby. Two weeks later, I took two weeks maternity leave. My husband was wonderful and he stayed home with the baby. And it was interesting because they later found out from others that I had had a baby. And they were very puzzled because they just met me and not realized I was pregnant. The interesting thing was that I read one of their SEC disclosures shortly afterwards,
Rosenberg: And let’s explain why there would be an SEC disclosure. And frankly, what that is.
Lam: Well, it’s a publicly traded corporation that I was investigating and publicly traded corporations have to make quarterly filings to the SEC, and they have to talk about their revenues, their profits, their debts and their whole financial situation. And among the things they have to do is they have to disclose any material issues that the company may be having.
Rosenberg: Because the companies have an obligation to the shareholding public to disclose any issue that might affect their revenue, their profit in the light
Lam: That might affect a shareholder’s decision whether or not we invest in the company because they were under subpoena the company and under grand jury investigation, they had had to disclose that in prior filings. Well, I was shocked to pick up disclosure and read in the disclosure that the company’s lawyers said that they had learned that the prosecutor conducting the investigation had had a baby and was out on maternity leave for a year. And that they had asked the Department of Justice to assign another prosecutor to the case. This was all completely fiction. I had taken a two-week maternity leave, I was back on the job, I was continuing the grand jury investigation. I was so puzzled. And now looking back on it, it was my first real experience with how women who had children were just written off.
Rosenberg: And is that why in the first place you tried to conceal your pregnancy from these defense lawyers?
Lam: It absolutely was it there was just a strong feeling that as soon as you got pregnant, your career was over. You know, I wasn’t trying to do this in some larger sense doing this for all women, although you know that I suppose was part of it. But it was just that this is not fair. I am as, if not more dedicated to this job and this mission than anybody else,” I’m coming back in two weeks after I have the baby and I am still subject to just lies in a public filing. So, what I did was I called the lead attorney. And I said, “I’ve just read this in your disclosure. None of it is true except for having the baby part. And I am sure that you would not want to have put something in your filing that could be interpreted as materially misleading to your shareholders.” Those are sort of hot words to corporate attorney and they issued a correction,
Rosenberg: You felt the need to conceal your pregnancy as a young assistant US Attorney in the Southern District of California in the 1980s. I presume that’s in part because law enforcement is a very male dominated field, more so than then today. It’s changed a little bit, but could you talk to that?
Lam: First, let me say that some of my–in fact, most of my best mentors have been men, I would never want to take away from, they were terrific, terrific mentors. And I think that you have to have a certain kind of personality. And you have to have the kind of confidence that I was able to have because I had such confidence expressed in me by my family, that it gave me the equipment to go into a profession where you had a lot of agents, frankly, who had never worked with female prosecutors, and didn’t have a lot of confidence that they could go into a courtroom and project the sort of confidence that they assumed they would get from a man. But I tell this to young women who are starting out in their legal careers or their law enforcement careers, and I say, “Look, I many, many times walked into a conference room for a meeting, and everybody around the table was male and in law enforcement, and when I walked through that door, they would all look at me, and I would look back at them and I would think to myself, ‘I know what you’re thinking about me right now. And by the time we leave this room, you’re going to be thinking something else.’” I don’t know what was in me that made me feel that way. But it is so important for a young woman to be able to feel that way when she walks into a room. And I hope we all work to give women that kind of ability to feel like that, that they can take this on and not be intimidated in any way. That’s the gift we can give to young women today.
Rosenberg: You had a whole bunch of interesting cases as a federal prosecutor, not just white-collar health care fraud. You also prosecuted mob cases.
Lam: I’ve prosecuted a couple of mob cases, or I should say they all probably grew out of one set of facts but you know. You’d say you were in San Diego, we What does that have to do with the Chicago mob? What happened was we had a fellow out in San Diego named Chris Petty and he was sort of a wannabe member of the La Cosa Nostra, which is the organized crime family.
Rosenberg: Which, to your point we more typically associate with the northeast and the big cities in that part of the world.
Lam: What those big cities were trying to do is they were trying to find institutions in the West, where law enforcement wasn’t as keen to organize crime. They were trying to find institutions in the rest where they could launder their money. And one of the great opportunities were the Indian reservations in California. So, the object of the LA Cosa Nostra from the Chicago family was to take over the Rincon Indian Reservation in San Diego. And then there would be a lot of cash flow. They could have ghost employees, they could move money, launder the family’s profits. We had some terrific FBI agents in San Diego who had actually worked in Chicago. And so, they were very key to this. But the greatest advantage we had was that because the crime bosses in Chicago were so physically removed from San Diego, that they had to use the telephone. And because they had to use the telephone, we had the opportunity to get very good wiretap conversations, whereas it’s much more difficult to get good conversations when you just put a microphone into a room because there’s always ambient noise and stuff like that.
Rosenberg: In my experience, every time we had a microphone, let’s say in a restaurant, the only thing you heard was the clanging of silverware on plates.
Lam: The air conditioner, and at the bus stop outside the window. We all had the same problems. We put wiretaps onto the phones—
Rosenberg: This is all done with court authorization.
Lam: Absolutely court authorized wiretaps and very, very labor intensive as anyone who’s done wiretaps knows and there was a new statute, which was informally called the roving wiretap, because ordinarily, you would have to get permission from the court to tap just one telephone number. The problem was that the crooks were kind of on to this so they would never use their own landline phone to talk about their crimes. They would go to public pay phones–
Rosenberg: They would move from phone to phone to phone and you had authorization for one of those phones, but not all of those phones. It was very hard for agents and prosecutors to keep up with bad guys as they moved from phone to phone.
Lam: Absolutely right. Because every time you wanted to move to another phone, you had to do an affidavit and get the judge to sign it and get AT&T to go and do the things with the wires. And by the time you did that, they had moved on to another phone. So, what the roving wiretap statute permitted us to do was to make the target of the wiretap authorization, the actual person. And what the court order would say is that you can tap any phone that the person is seeing using
Rosenberg: So, rather than going from phone to phone, you follow the person with court authorization to whatever phone he used.
Lam: Right. So, an agent could put in the affidavit that he has seen this person using different phones, in order he believed to evade law enforcement. And then as soon as he witnessed somebody using a different phone, he could ask the phone company to start tapping that phone, and we did not have to go back to the court every time to get a new wiretap authorization.
Rosenberg: And that’s roving surveillance.
Lam: That is roving surveillance. And we did the first use of the roving surveillance in the country in San Diego in this mob case.
Rosenberg: There’s a wonderful story about this case you want to conviction. It’s up on appeal, meaning in one of the circuit courts like the one you had clerked in, in New York, and this is the anxiety dream that every human being I’ve ever met has had in one form or another. You can’t find the gate at the airport, or you walk into your classroom and you didn’t realize it was the day of the final exam. You actually had this happen to you?
Lam: I did, and it is one of the two nightmares of my career. What happened was we won a conviction and the defendant was appealing his conviction.
Rosenberg: Is this Chris Petty, who you referred to earlier?
Lam: This is Chris Petty. I was appealing his sentence he got a 13-month sentence, I thought he should have gotten a sentence that was far larger. So, we had these two cross appeals, but they were not consolidated.
Rosenberg: So, one by the government of the sentence he received because he thought it was too late one by the defendant of your use of roving surveillance because it was a relatively new and for legal purposes, untested tool.
Lam: That’s right. And he was challenging the constitutionality of the roving wiretap. And I thought being very clever that I would not move to consolidate these appeals. He’s out on bond pending appeal. And if I can get the sentencing appeal moved quickly, because the issue is a little simpler, I can maybe get him into custody faster once the Ninth Circuit rules.
Rosenberg: So, you don’t want to join the appeals. You want to handle them one at a time. But frankly, Carol, this is not up to you.
Lam: That’s right. It’s not up to me. But nobody had made a motion in the court had not joined the appeals. And so, thinking I was very clever, I finished all the briefing. And indeed, the sentencing appeal is moving much faster than the appeal of the roving wiretap. I finished the briefing, and we get an oral argument date for the sentencing appeal and we’re just finishing the briefing on the constitutionality of the roving wiretap. So, you know, one case is, in fact, way ahead of the other case, we get the oral argument date, I buy my new shoes, I polish them up, I drive up to Pasadena to argue the appeal—
Rosenberg: In the Ninth Circuit.
Lam: In the Ninth Circuit, a beautiful stately courthouse and the defense attorneys, Oscar Goodman, who later became the mayor of Las Vegas, and he’s representing Chris Petty. And we walk into court and the three judges file out, and they bang the gavel and they call our case and Oscar and I walk up to the podium, we walk across the barn, Oscar walks up to the podium and I said, “Oscar, this is my appeal, so I go first.” And he looks at me sort of puzzled. And the judges say, “Is there a problem counsel?” And Oscar says, “Well, your honors, Miss Lam seems to think she goes first. And I think I go first.”
Lam: And we should point out that the appellant the one appealing The case is the one who would go first. That’s right. I will remember these words till the day I die. The presiding judge says, “well, counsel, we’re going to hear both issues anyway, so Mr. Goodman, why don’t you just proceed with the constitutionality of the roving wiretap?”
Chuck Rosenberg: And you had absolutely no idea that your argument that day would involve that issue?
Lam: That’s right. I was completely unprepared to argue a case of first impression, as we call it. The first time this issue has been heard by an appellate court on the constitutionality of a federal statute.
Rosenberg: Meaning it’s a very big deal, a huge deal.
Lam: Probably the biggest appeal I’ve ever argued in my life. Not only was I unprepared to argue the appeal, but I sat down in a daze. I looked at the blank piece of paper in front of me, and I thought, I don’t have the briefs with me, I don’t have the transcript of the trial because I thought this was just a sentencing appeal. In fact, I don’t even have the statute with me. I think had nothing with me and I had only a blank piece of paper in front of me. I went on to argue the appeal, probably more generalities than I would have liked. I remember on the drive home thinking, wow, I am either going to be a great hero or a great goat. Because I don’t know how I’m going to explain to my supervisors if I lose this case, that I was completely unprepared to argue it. And what had happened was the court on its own motion had decided to join the two appeals, but they had not said anything to the parties about it. And afterwards– although your opponent
Rosenberg: –although your opponent seemed to know.
Lam: He seemed to know and afterwards I said to him, gee, Oscar, I don’t know what happened. And he shook his head. He said, you know, Carol, the only way I knew was when I looked hard at the courts calendar. I saw both case numbers next to the name of the case. So, he and his assistant had figured it out.
Rosenberg: They had divined it.
Lam: They had divided but I had missed it.
Rosenberg: So, Carol, why wouldn’t you have known? What was supposed to be argued that day in the Ninth Circuit? What happened?
Lam: Well, usually if you have two separate appeals relating to the same case, what often happens is the court will actually issue a formal order and say we are consolidating these cases together, they will be argued on the same day. And both parties understand that what happened in this case was the court didn’t do that they decided to join the cases. But the only way the parties would have known is if you had looked at the calendar for the day and, and realize that both case numbers were on the calendar. So it wasn’t the sort of overt notice that we usually get. It was more something you had to just catch, and I missed it. We won the appeal. And this is what I would analogize to the door happened to be open when I walked through it as opposed to just banging my head into it. It was just one of those rock and roll moments when you think I’m either gonna get lucky, or I’m not.
Rosenberg: And you got lucky.
That day I did.
Rosenberg: It wasn’t just luck. You obviously knew the issue and you were albeit unprepared, but knowledgeable.
Lam: Yeah, I knew the issue. I think what saved me was, we had briefed those issues so recently that I still remembered them, so I was lucky in that sense. I’ll just say we do a good job on the briefing.
Rosenberg: Well, the good news, Carol, is if you have one of those anxiety dreams today, where you can’t find your gate at the airport, or you walk into class and you learn there’s a final, that’s nothing compared to what really happened to you.
Lam: Yes, I think that’s right. And sometimes I tell this story to people starting out in their careers and tell them: “these things are going to happen to you. And you have to roll with it. Do the best you can and just get through the moment it happens.” Things like this happen and they happen to everybody.
Rosenberg: Adjust and keep moving.
Lam: Right.
Rosenberg: You said earlier you spent 14 years as an assistant US attorney that you love the work, but you left the office in 2000 because you got a pretty unique opportunity.
Lam: When I was an assistant US attorney is it I started pretty young, as many do. And I remember one day talking to my mother on the phone and I said, “you know, Mom, I love my work. I so respect the people I work with. They’re so smart, and they’re so helpful.” And she paused and she said, “don’t take that for granted. Not many people can say that.” And that stayed with me for the whole 14 years. But you know, the United States Attorney’s Office, as fabulous as the work is, it’s not a very layered organization. You have the US Attorney, and then you have a whole bunch of assistant US attorneys, so you never really know where you’re going.
Rosenberg: There are a few supervisory positions, but it’s a very flat very horizontal organization, typically.
Lam: It is a flat horizontal organization. And I am by nature, kind of a restless person, and I think I had always wanted to be a judge. I always liked the idea, you know, the Solomon-esque, sort of having to weigh a lot of different factors and come up with, maybe not the perfect answer for everybody, but the best reasonable answer you can come up with for a bunch of parties.
Rosenberg: Is that the philosopher and you, Carol?
Lam: Maybe, I think it’s as well a reflection of my temperament. And so, I decided at a certain point, I think when they decided to combine the municipal and superior courts in California, so everybody who became a state court judge was a superior court judge. At that point, I decided to put my name into be a judge and see what it would be like.
Rosenberg: And to be clear, you’d be moving from the federal system to the state system.
Lam: That’s right, because it’s a much harder reach to become a federal judge. And frankly, I think it’s good training to be a state court judge, you learn how to handle volume, you sort of see more street crime, and it was a better move for me at that point in my life, I was 40 years old at the time. So, I applied and relatively quick fashion for a judicial appointment. I actually was appointed to be a judge at age 41 by Governor Gray Davis, and so I moved to the state court at that time.
Rosenberg: You tell a story about advice you got from the presiding judge, which I love because it’s so sort of straightforward and simple. He told you not to be a jerk.
Lam: Yeah, he did. What he said was, he said, look, this was right after a colleague of mine, actually, from the US Attorney’s Office, we were both sworn in on the same day. And after we were sworn in, he took us into chambers and he said, “I want to give you some advice.” He said, “Never get mad in your courtroom. There’s no need for it. You’re the king of your courtroom. You don’t have to get mad, what you say goes in your courtroom.” It wasn’t clear to me then why he was saying that. But one day in my couple of years as a state court judge, I actually did get angry, something that a lawyer had done in the courtroom. As I was expressing my anger. I saw the looks on the faces of really everybody in the courtroom. And it was then that I realized what the Chief Judge had been saying that day, there’s already such a disparity of power in a courtroom.
Rosenberg: An imbalance between the judge on one hand and the litigants and parties on the other.
Lam: The judge has absolute power in the courtroom, and nobody else does. And so, when the judge gets angry, it’s almost abusive, and because nobody can really fight back. I realized that phrase absolute power corrupts absolutely. I saw the roots in it there. And I felt bad about getting angry in the courtroom that day. I felt bad about that ever since.
Rosenberg: Did you apologize?
Lam: Not that day. But what happened was, after I left the bench and became a US Attorney, that attorney actually reached out to me and we had a discussion about what had happened that day. And so, I think in that discussion, there was a form of an apology from me.
Rosenberg: It’s a great lesson. I mean, whenever you have a position of authority, and these are my words, not yours and not the chief judge: don’t be a jerk. Understand that there are people who look up to you and the position you hold, and that real strength is treating them with civility and kindness.
Lam: You know, it’s a lesson that’s even broader than that, Chuck. I think that a lot of people think when you rise to a position of leadership, that you can take more liberties because you’re in a higher position. And actually, the opposite is true. You have to adhere to the rules of conduct and, and the literal rules much more fastidiously when you’re in a position of leadership because now everybody is watching you. If you start flaunting the rules, everybody else thinks, well, she’s flaunting the rules. I can too. And–
Rosenberg: The tone really does come from the top.
Lam: It’s not a cliché. That’s what it means.
Rosenberg: Of all the leaders I worked for, And I’ve been pretty lucky in my career, I have found them all men and women to be remarkably civil and kind
Lam: One of my mentors at the US Attorney’s Offices older than I am. His name is Steve Clark. He was an Annapolis grad. He understands organizations, he understands the military. Steve was the chief of the fraud section when I was an assistant US Attorney. One day, I was in his office and he said, I want to talk to you about something. He said, I just went to the United States Attorney, and I told him I stepping down as the chief of the fraud section. And I told him that I think you should take my place. And I was stunned. You know, everybody wants to be a supervisor, why would someone willingly give up their position and recommend somebody else? And I said, “Steve, why would you do that?” And he said, “because I think it would be good for you. And I think it would be good for the office.” And that is, that’s such a lesson to me in what it means to think outside of yourself.
Rosenberg: And to be a leader
Lam: And to be a leader. I think now on reflection, he was looking at me as a rising prosecutor. I’m a minority woman, all of these things, and he’s saying it’s time to hand, hand the baton. It’s something that I’ve heard military leaders say before that they say, when I’m in a room with my people, I’m always looking around, who’s going to take my place? Who should I be helping train to take my place? I’m always thinking of the future of this organization.
Rosenberg: When I ran the DEA, I used to say over and over to anyone who was willing to listen, that I didn’t think I should stay that long, that there was a value in somebody else coming in and kicking the tires. Some of the things that I thought the organization needed, I might have been right, I might have been wrong, but a fresh perspective, and developing new leadership is an essential function of leaders.
Lam: It’s such an irony that great leadership actually includes such a huge element of humility and understanding not only what you have to offer, but what you don’t have to offer and what others do have to offer.
Rosenberg: There’s an irony because in order to be humble, you have to be confident and it would sound like those two things can’t go together. But actually, if you think logically about it, humility and confidence are two sides of the exact same coin,
Lam: And absolutely complimentary. I’m not sure that great leaders can be made. I think that to a large extent, people either understand leadership instinctively and intuitively, or they don’t. If they do understand it instinctively or intuitively, there are lessons they learn and such, but in order for lessons to be learned, you have to have an audience that is receptive. You have to have a kind of personality or character that is receptive to learning those lessons.
Rosenberg: Was it odd for you to go back to the US Attorney’s office as the US Attorney? This is a place you had grown up as a prosecutor you had spent 14 years there, as what we call a line attorney–l-i-n-e–now you’re the boss. Now you’re in charge including of your colleagues and friends.
Lam: It was not as difficult as I would have thought. And it was one of the most wonderful things I could have imagined. And in fact, when I left the state court bench having only been there for a couple of years, that was a little awkward, because it’s a great honor to be appointed to be a judge, and then to leave relatively quickly is very difficult. And when I called the judicial secretary to tell him that I had applied for the position of US Attorney, I explained to him that there was no other position I would leave the judgeship for but this position, I think it made it easier for me to come back as US Attorney because I had now been on the state court. But you know, it’s a funny thing, Chuck, as soon as I went on the bench, there’s this moment where you go on the bench for the first time you’re wearing this robe, and it’s usually a borrowed robe because yours hasn’t arrived yet from the robe supplier, and you go on to the bench, and you sit down and everybody in the courtroom is looking at you and you’re thinking, “Why are you all looking at me?” But over time, you understand you learn how to start have managed a courtroom and you get used to the fact that everybody’s looking at you. But one of the things that struck me as a judge was, I remember thinking, I wish for just a moment I could go back to being a lawyer because I would be such a better lawyer now having been a judge. And what I came to understand, having been a judge, what I came to learn on the bench, was that when you’re a lawyer, you should never just lay a problem at the judge’s feet. Because often, the judge is the one person in the courtroom who knows less about the case than everybody else in the courtroom. You know, the attorney for the defense knows more, the Attorney for the prosecution knows more about the case, a lot of the spectators know a lot more about the case, and the defendant and knows a lot about the case. And you’ve just gotten this case, and you don’t really know what the backdrop was in the background. And so, what I learned, what I told assistant us attorneys was don’t just lay a problem at the judge’s feet. If you have an issue or a problem, tell the judge what the problem is and then propose a solution so that you give the judge some guide where to go from there.
Rosenberg: I remember hearing a wonderful story from a judge in Virginia named Joanna Fitzpatrick. And she told me, I’d never appeared in front of her. But she told me the story of coming out on the bench in a bankruptcy proceeding, and that she knew absolutely nothing about bankruptcy, nothing, she could barely spell the word, but she had the humility and the confidence to tell the litigants: explain this to me, tell me what the law is help me here educate me, because if I’m going to do my job as a judge and make the best decision possible, I need your help.
Lam: Absolutely right to let people know you don’t know what the right answer is and not be embarrassed or ashamed about it, but confident that you can learn how to do these things. There were times on the court when my court clerk would end up in a discussion with the attorney about how best to proceed forward and I’d be sitting there listening to them and I would finally say, just let me know when I should say say “so ordered,” and justice was done.
Rosenberg: You said you loved being an assistant US Attorney. Did you also love being the United States Attorney?
Lam: I don’t mean to sound like a cliché, but being a United States Attorney is the greatest job anybody can have. If you have the kind of background that you and I have talked a lot, you’ve had a lot more positions. So maybe you didn’t say that.
Rosenberg: But that may only be because I can’t keep a job and you can.
Lam: You and I both Actually, it was a fantastic job. And the way I put it is having been a prosecutor in that very office for so many years. The best thing about being US Attorney was I could fix things that I knew were wrong, without having to persuade somebody else to do it. And I felt that I could identify the issues much faster and I could see them coming from much farther away because I had held almost every job in the office in every section. Whenever I made a decision in the office, I would look at the person who it was going to impact. And I would make sure, before I announced the decision, that I got buy-in from everybody between me and that person. Because if people feel like they’ve been left out of the decision loop, if not consciously, then subconsciously end up trying to undermine that decision. But if they feel that they were in the decision loop, they will support the decision.
Rosenberg: Even if they don’t like the decision.
Lam: Absolutely. You know, people understand that a decision has to be made and that the person at the top of the organization has to make it. They would just like to be consulted and heard before that decision is made.
Rosenberg: I used to tell people when I ran organizations that I will always share with you my rationale, you may not like the decision, but you’re entitled to understand why I did what I did. And I found that incredibly helpful. Sometimes the rationale would convince people who might not have like the decision that the decision wasn’t awful. But even if they didn’t like the decision, they understood my reasoning for it.
Lam: It’s absolutely the way it has to be done. And you’re wise to have done it that way because people get that they understand in an organization, somebody has to make the decision, but they also are very good at detecting empathy and respect. And that’s such an important part of being a leader.
Rosenberg: Carol, your tenure with the United States Department of Justice came to an unceremonious end you were fired in 2007. This is a topic you and I have discussed many times. There’s actually a lot written about it because it wasn’t just due there were a number of our colleagues. I was a US attorney at the time, who were fired simultaneously with you. I imagine that hurt deeply and I imagine you learned a lot from it.
Lam: I did and this was back in the day when firing us attorneys and mask was not such the sport that it is now, but it was a very difficult time. Seven of us received the call on the same day, telling us that the department had, quote, decided to go in a different direction and we were being asked to submit our resignations.
Rosenberg: And this was in 2007. The call actually came in 2006, end of 2006. And we were asked to submit our resignations effective in early 2007. And this just wasn’t something that was routinely done at the department. You know, the, the sort of unspoken understanding was, unless you truly did something terrible in the job, you know, unethical or immoral, that you would hold your position until the president who appointed you, or the president of that party left.
Rosenberg: That’s an important point here because there wasn’t a change in administration. This was part of the same administration that had a point of view.
Lam: That’s right. And that’s what was so unusual about it. And the other unusual thing is that none of us had done anything that previously would have warranted a dismissal of this kind. And by the way, we were apparently not supposed to know or talk about amongst ourselves or ever find out that seven of us had been asked to leave on the same day, which was, which is kind of funny when you think about it as if the people who implemented this thought that this would remain a secret somehow. And that just shows a sort of, you know, ham handed, bungled way that this was done. It was really a great lesson, ultimately, you know, we ended up having to testify in front of Congress, and the whole thing blew up, even as I was going through it, I thought, “what is this going to be at the end of the day? What’s the footnote in history that this will be when all the details are forgotten and that sort of thing.” And one day I was reading a New Yorker article about some other events at the Department of Justice. And I remember reading a paragraph that said, this wasn’t a good time at the Department of Justice. Seven us attorneys had just been dismissed for political reasons. And I remember thinking, well, that’s the footnote in history right or wrong with you know, however you want to look at it. That will be the shorthand version of this.
Rosenberg: Ostensibly, the rationale that was offered for your firing was that you weren’t bringing enough cases of a certain type. And I think that leads to a really important discussion about what the role is of federal prosecutors and federal agents, and whether we ought to measure our work quantitatively or qualitatively. Do you have any thoughts on that?
Lam: Yes, I have a lot of thoughts on that. And I had been pretty upfront about this since the time I was being considered to be a US Attorney. Our district was a border district. I know, Chuck, that you were the US Attorney for a while in a border district as well. And you know what it’s like you have thousands of border related crimes coming into an office with 100 to 200 Assistant US attorneys.
Rosenberg: Which sounds big, but in the end is not sufficient to process all of the cases that would come off the border, for instance,
Lam: Yes, all the cases that could potentially come off the border because in any given year, you might have estimates vary but 500,000 to a million illegal crossings, you have drug cases, you have other types of smuggling cases. And so, you could do endless cases on the border. And on the border, the job of US attorney is defined as much by what you have to decide not to prosecute as what you decide to prosecute. And so, you have to look at the capabilities in your office. And you have to look at something that I think not enough people understand, which is you have to look at the careers of the people in the office and the types of people you’re going to be able to attract to that office if you don’t give them interesting and satisfying work.
Rosenberg: And flexibility.
Lam: And flexibility, that’s right, because that thing I talked about at the beginning, about learning about yourself, and what kind of person you are and how you exercise judgment. That’s something you have to cultivate in your prosecutors to make them into better people and better prosecutors. If you have people and an IV No us attorneys who have said and done this to people in their office, they’ve said “You’re lucky to have a job. And so, you’re going to do whatever cases I tell you to do, because I want to look good to whoever I’m answering to.” The really good prosecutors, or people who could potentially be good prosecutors are not going to stay around in your office if they’re doing the same kinds of very limited small cases for 25 years. And not that that should define how your office does its job, but it defines what your job as a manager is. And so, if you can find a way to do effective law enforcement in your district, and challenge your prosecutors, you should do it. So, this is what I was trying to do. And my view was always, I would much rather prosecute one case with 10 defendants in it, and make it a larger organization case–I would rather do that then prosecute those 10 individuals individually.
Rosenberg: In the first instance, you have one indictment in the second instance. Theoretically, you have 10 indictments, if you’re only measuring the worth of your work quantitatively, it would move you toward the second model and away from the first.
Lam: That’s right, you’ve got exactly right. So, if the Department of Justice decides, as they always have, that we are going to measure our success by the number of cases we bring, the number of indictments or the number of judgments we get, you’re going to do the 10 small cases. But you know, Chuck, because you are an experienced prosecutor, if you take the 10 people in the organization and you put it into one conspiracy indictment, you get the smaller players flipping against the larger players, and ultimately, you get the head of the organization for a much longer sentence.
Rosenberg: But I think there’s an even more dangerous and perverse incentive, the situation you’re describing. You still have 10 defendants at the end of the day. But if you insist to an office or to an agency, the FBI, the ATF, the DEA, that they do more cases next year than they did this year, and then more cases the year after that, what you’re telling them is to work further down the chain and not up the chain, meaning make as many small arrests as you possibly can to drive up numbers, where the bigger, more important cases at the top are harder to get.
Lam: And it’s that harder to get to part that is the disincentive for everybody in the system unless you keep pushing. The incentives, as you were pointing out, is always to go downhill to the easier cases, to the cases with the shorter sentences because then people will plead out instead of go to trial. If you looked at the number of cases we did, yes, they went down. But if you looked at the number of trials we did, and the number of longer sentences we got, it went way up. But unfortunately, the department at that time was not interested. Looking at my arguments, they just wanted numbers. There was some clash there, but I could not see running an office where we just mindlessly did smaller and smaller cases until everybody was getting time served.
Rosenberg: Incredibly easy to count widgets, incredibly hard to measure impact.
Lam: That’s right. I made this argument for years, that we should be evaluating the effectiveness of our law enforcement efforts, not by how many cases we bought, not how many convictions we got, but by how many days in custody we were able to get cumulatively, because I was convinced that if that was the measure, we would be able to show that we were doing a more effective law enforcement job.
Rosenberg: I agree with Carol, but I also think you have to be willing to not always measure your work. Let me give you an example: I had the privilege when I was a US Attorney in the Eastern District of Virginia of being in charge of that office during the sentencing phase of the Musalia case, the 9/11 prosecutor right case went on for five years, we had four system us attorneys, two from the Southern District of New York and two from the Eastern District of Virginia, plus lots of attorneys from the Department of Justice and paralegals and analysts, and an incredible team of agents working on a one defendant case.
Lam: That’s right.
Rosenberg: Is it worth it?
Lam: It’s absolutely worth it.
Rosenberg: Absolutely worth it. I completely agree I would not have done it differently.
Lam: And by parallel to that our office was always under a lot of pressure to tackle illegal immigration. Well, what we did was we focused on corrupt Border Patrol agents, because what we were finding was that there were Border Patrol agents, who were taking bribes from smuggling organizations and they were waving through the port of entry, hundreds of illegal aliens a day who were hidden in cars, and they knew which cars had the aliens in them and they were waving them through. And we did wiretap investigations and as we discussed earlier, very labor intensive.
Rosenberg: Cumbersome.
Lam: Very cumbersome, very labor intensive. You have to make reports to the court you have to monitor the phone calls. But we did seven of those cases with two or three-month wiretaps on each. And again, each of these agents were helping hundreds of illegal aliens through a day. And at the end of each case, how many convictions did we have? One, of the corrupt border patrol agent.
Rosenberg: And you could have arrested hundreds of illegal immigrants instead.
Lam: Right. Using those same resources, we could have had hundreds of statistics, and not done much for real law enforcement. It doesn’t take much deep thinking to really understand this, but I was disappointed at the fact that nobody really wanted to do even that level of analysis.
Rosenberg: Look, I understand that we have a responsibility to the public and to the congress who appropriates money for our work to show a return on their investment. I think it’s incumbent upon us as leaders and law enforcement to explain what a good return on investment really looks like.
Lam: I think that’s right, Chuck, and honestly, it’s not that difficult. I mean, you and I just did it right now. But you have to have leaders who are willing to look behind the simple number on the page.
Rosenberg: Carol, you’re describing a situation not just in the Southern District of California, but across the border, so many people come into this country illegally, but you can’t prosecute all of them for doing that. How do you think about that problem? And what’s the solution given limited resources, not just in your office as a prosecutor, but among federal law enforcement agencies?
Lam: I’m certainly not the first one to think about this problem. Because as you point out, Chuck, you could get a million people crossing the southern border into the United States every year and there’s no way that we can prosecute all illegal crossers. So, what every office does is they prioritize who they’re going to prosecute. I think you’d agree with me as you were the US Attorney once of the Houston office, that you would take the smugglers, the people who run the smuggling organizations.
Rosenberg: The people who are profiting from it, people who are profiting from it.
Lam: And we used to say, you know, we don’t prioritize prosecuting economic migrants, in other words, people who are coming here to work in the fields to earn money for their families back in Mexico, we may send them back to Mexico, we hope to catch and send them back to Mexico. But those are not our priority for criminal law enforcement.
Rosenberg: And that’s a deportation not a criminal prosecution.
Lam: Either a deportation or simply a voluntary return to Mexico, because even deportation takes a lot of resources.
Rosenberg: But to your point, there are ways of addressing illegal immigration short of criminal prosecution.
Lam: That’s right. And we would also of course, prioritize for prosecution, people who come to this country and commit crimes. That was my point, frankly, to the Department of Justice, was that we were spending our resources taking people who came here and committed violent crimes, rapes, and murders and things and we were getting very high sentences on immigration crimes, but for people who had come here and committed crimes here.
Rosenberg: Right. So, smugglers seeking profit people who come here illegally and commit crimes, or perhaps on some occasions, people who come here repeatedly, despite having been voluntarily removed or deported previously.
Lam: Right, the more times they return, the higher their risk of actually getting criminal, criminally prosecuted, and then maybe getting criminally prosecuted for a felony as opposed to a misdemeanor. And certainly people who smuggled people, and I know that, you know, from your experience, sometimes we didn’t have enough resources to prosecute people, even though they were smuggling people because–so then, we had to set guidelines saying, Well, if it’s six or more people that they’re smuggling, or seven or more people, just because either agency resources or, or prosecutor resources weren’t available–but if people endangered lives, either by engaging in high speed chases, or putting these people being smuggled the aliens into some danger by putting them into a company apartment that wasn’t safe, those would rise to the top of the prosecution guidelines.
Rosenberg: And I’m so glad you’re explaining this, because it’s not always obvious people just assume that if there’s a crime, there’s an agent and a prosecutor and a judge and a probation officer to address it. And that’s just not always the case.
Lam: It’s not always the case. In fact, most of the time, it wasn’t the case. I’ve often said that the immigration issue on the border, it shouldn’t so much be viewed as a criminal law problem. It is a socio-economic problem. And it’s important for politicians not to jump to the easy platform of saying it’s a criminal law problem.
Rosenberg: You know, when I ran the DEA, I talked about the drug problem as being two separate problems. At the very top of the organizations and the cartels, it’s manifestly a criminal problem. At the very bottom with people who are addicted to drugs. It’s a public health problem.
Lam: It’s a perfect analogy. That’s exactly right, because you can’t handle the criminal problem without addressing the underlying problem.
Rosenberg: Carol, do you miss public service?
Lam: It’s a question that’s asked of me often, Chuck, I miss parts of it. You know, as we talk here today, I miss talking about loftier issues and issues that affect the public safety and things that you know can and should be done. I will say that I think this is a time that’s more fraught. I was deeply, deeply disappointed, frankly, in the Justice Department and the way they handled the whole situation with respect to my colleagues and me.
Rosenberg: When you were fired.
Lam: When I was fired, I thought that the number of good and honorable people in the Justice Department frankly, had gotten thinner. And that was a deep disappointing to me. And I think it’s incumbent on the department to fight its way back.
Rosenberg: And when you talk about thinner, I presume you mean at leadership levels and not at the base of the pyramid.
Lam: That’s absolutely right. I think there are wonderful, wonderful new graduates of law school who wants to enter public service for the right reasons and they should do it.
Rosenberg: And the agents that Make up the ATF and DEA and FBI and the marshal service.
Lam: I heard Chris Ray gave a talk a couple of months ago—
Rosenberg: The new FBI—
Lam: –the new FBI director, and he said they had some astounding number of applications for new agent positions. And I’m thrilled by that. And I have good friends whose kids want to be agents desperately and they’re doing everything they can to do that. And I think it’s wonderful. People in our generation, Chuck, owe it to these kids to, to make these institutions into the best institutions they can be.
Rosenberg: Are we the older generation?
Lam: I’m afraid we’re past that marker. Yeah, Chuck, we are.
Rosenberg: Well, Carol, I wanted to thank you for a couple of things, one for a lifetime of extraordinary public service, as a judge as a prosecutor, but also for taking some time to sit down with me and talk about it for our listeners. I know they’re going to appreciate this.
Lam: Well, Chuck, you’ve been a fantastic leader for us in so many ways, so thank you too.
Rosenberg: Thanks to Carol Lam for joining me on my podcast, Carol spent her professional life in service to her community, her state and her nation. As a judge and as a prosecutor. She is a thoughtful, committed and dedicated public servant with important insights into our criminal justice system. From those two very different perspectives. She has spent a professional lifetime thinking about issues of equity and fairness, and how best to evaluate and understand the work of the Justice Department. If you like this episode, please let us know by leaving us a five-star rating on whatever app you use to listen and ask your friends to subscribe. We are available on Apple podcasts, Spotify, Tune In, and every major listening app as well as msnbc.com/theoath. If you’re listening on a smartphone, tap or swipe over the cover art of this podcast, you’ll find the Episode Notes including some details you might have missed. If you have any thoughtful criticism, feedback, or questions about this episode or others please email us at theoathpodcast@gmail.com, that’s all one word: theoathpodcast@gmail.com. Though I cannot personally respond to every email, please know that I read each one and that I appreciate it. The Oath is a production of NBC News and MSNBC. This podcast was produced by FannieCo. With Fannie Cohen, Nic Bannon, and Rob Hebert. They are a wonderful team and I am fortunate to work with them. Olivia Cruiser provided excellent production support, as always, our associate producer is Allison Bailey. And Steve Lickteig is our executive producer. This is The Oath with Chuck Rosenberg. Thank you so very much for listening.