OA13: Hillary Clinton's Damned Emails!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello

0:01:18 Andrew: Here we.

0:01:18 Thomas: And welcome to Opening Arguments. This is episode 13. How you doing, Andrew?

0:01:23 Andrew: I'm great, Thomas.

0:01:24 Thomas: I am doing great because I'm so looking forward to this topic. So today we're going to talk about, in the main body of our work here, we're going to talk about Hillary's email scandal. I don't know about you guys, but I know a lawyer and this particular lawyer has really gone through the case law and to an extent that, is it fair to say, Andrew, that we don't know if anybody else has done that we know of anyway. I love it. I'm so excited, but first we've got to get to our segment of listener questions. All

0:01:24 Andrew: How are you?

0:01:49 Andrew: Yeah, I haven't seen anyone answer the question that we're going to try and answer today.

0:01:58 Clip: He who questions training, only trains himself at asking questions. What?

0:02:06 Thomas: Eric Brewer asks, "I had a lawyer who charged an hourly rate divided into 15 minute segments. If he picked up the phone and made a call, got the secretary and left a message, which is like two minutes, I got charged for 15 minutes." I assume his question is, is that okay?

0:02:25 Andrew: Yeah, right. Yeah. I actually got a bunch of comments following up on last week's question segment where we talked about legal fees. And Eric is a great friend of the show, so I thought this was pretty representative and a good sort of jumping off point. There are a few more things that I think are pieces of good general business advice. Again, don't take legal advice from a podcast, that that apply to hiring a lawyer and looking at your bill. So I wanted to go through that. So the first thing is, whenever any lawyer does any work for you, they are required to set forth the terms of their representation in a document that's called an engagement letter. And in fact, you will be required to sign it. I realize part of the reason that you're hiring a lawyer is because reading legalese can be a challenge.

0:03:13 Andrew: But you should feel free to ask your lawyer about that letter itself. And it should say, here are the things for which we're going to charge you. And here are things for what we're not going to do. And so the first thing you should know is that that document itself is negotiable, right? The rate, if they're going charge you an hourly rate, how they break down that hour. Eric's question looks at a lawyer who's breaking down their time in quarter hour increments.

That was common when I was a young associate 20 years ago. I would say the best practice today is much more in tenths of an hour, which are six minute increments, that's how I bill, that how a lot of the folks, you know, at every end of the spectrum, And particularly, you know, if you're hiring a high-priced lawyer, you want to get something that is closer to billing for the actual amount of time expended. The rise of email has really led to this because, right, it takes about five to six minutes to draft an email on average. And I can remember at the start of my career, I was billing a quarter hour for that. And now I bill a tenth of an hour for it. And that's more realistic to cover the work. Because I have talked a lot about the consumer side, which I feel very strongly about.

But there's also, it's fair for your lawyer to get paid for the work that he or she actually does. The question is, how do you make sure that it accurately reflects what's being done? On. So number one, take a look at that engagement letter. Number two, ask the lawyer to explain anything you don't understand. Number three, understand that the terms in the engagement letter are things that you can negotiate, including the rate, includingthe things that you pay for and the things thatyou don't pay for.

0:04:58 Andrew: So, know, I have had clients tell me that they were not going to pay for time waiting around to be heard in court. And, you You know, and if it's a big enough matter and it makes enough sense, that's something that I have given on before and other things. I don't want to give up too much away on how to negotiate your lawyer down to nothing.

0:05:16 Thomas: Lawyers hate this one trick Andrew Torrez is about to teach you.

0:05:18 Andrew: You really do ultimately have a significant amount of power in those interactions. And at minimum, you should be informed about that. You And will typically receive, again, for a lawyer that bills hourly, you will typically receive a monthly invoice. And that should have a breakdown of how those hours are spent. And again, the same thing holds true, right? If a good lawyer, I try and always do this, will sort of set out a timeline in advance and give you an estimate and say, hey, look, you've asked me to do this. It's probably going to take me about five or six hours. And then when you see five or seven hours, you're going to be like, oh, I'm going to five or eight hours on your bill. You're not surprised. Um, if you see something on your bill that's surprising, you know, ask me, you can always dispute that. Go

0:05:58 Thomas: So you recommend if someone gets one of these engagement letters that says 15-minute segments, would you say, no, I want it. Would you recommend someone ask the lawyer, can we just do tenths? Can we do that? Sounds more fair or something like that. Would you recommended people actively try to do that.

0:06:17 Andrew: Yeah, I would. I would, um, This really kind of overlaps with last week that I think, uh because there is a level of, um defaulting to experts, as uh you well know I have defended the position of the lawyer as the expert, uh in in, in the past. Uh, it, but it doesn't mean that, that you have to defer on everything. And it doesn't mean that, um, there's, if there's something that you don't understand or something that just seems off, um you should ask about that. You should raise that as a question.

0:06:18 Thomas: Yeah, makes sense.

0:06:43 Thomas: Absolutely. I wonder if people are like me where you see something in a contract form and you're like, wow, this is clearly official. This all looks in order. I guess I just have to, whatever it is, I have to submit to it. Where it's like, just because they're giving you an engagement letter that looks all fancy, it maybe wouldn't have occurred to me to ask these things like, hey, can we change this? Or this doesn't seem fair or whatever. But yeah, info. That's good All right. Should we get to our main topic? I'm really excited for this. What do you think so?

0:06:44 Andrew: Yeah, I can't wait.

0:07:17 Thomas: Hillary, lock her up. Right? And lock her up? Yes or no, Andrew? Yes. Okay, done with the show. All right, done.

0:07:18 Andrew: Yeah, lock her up! So, I want to address a very, very specific legal argument, and I guess the way that I want to talk about that is first by talking about what I don't want to address, which is to say, if you believe that the director of the FBI has secretly conspired with the Clinton campaign to cover up the facts, and you think that the FBI's findings that Hillary Clinton was not aware and had no intent to remove confidential information from the chain of custody, if you don't believe that, then this podcast is not for you. Okay. If you think that Hillary Clinton secretly murdered James Foster or Vince Foster, right, this podcast is not for you. But there is, I think, a legitimate question that was raised. It was raised by Rudy Giuliani, former prosecutor, accomplished lawyer, others. Link some. I should say I've written a blog post that is a companion to

0:07:36 Thomas: Good. Call. Yeah.

0:08:23 Andrew: This that's linked in the show notes. And that will, in turn, have all the links that I'm going to talk about in this episode.

0:08:28 Thomas: Definitely. Check that out.

0:08:29 Andrew: But what the question that was raised was, given the facts as reported by the FBI, did Hillary Clinton still get preferential treatment? Or as I've heard some of my Trump supporting friends say, well, you know, if her name wasn't Hillary Clinton, if it was Joe Smith, then she'd be in Leavenworth right now breaking rocks.

0:08:51 Thomas: I have seen people make comparisons to Snowden, for example. Like, well, look at, look at how they treated Snowden, but then she does this stuff, she goes, gets off free.

0:08:52 Andrew: Right. Right. So what I did was take a look at the actual law and the case law applying it to answer that question of did Hillary Clinton, on the facts as established by the FBI as a result of that investigation, did she get preferential treatment? Wait, you want to know the answer? Do you want to be left as a cliffhanger?

0:09:20 Thomas: Let's leave it as a cliffhanger. I think

0:09:21 Andrew: All right. Why don't we talk about what those facts are, okay? So July 5th of this year, Director Comey released a statement to the public that summarized the findings after the FBI investigation into Hillary Clinton, and the summary of those findings is this. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in the handling a very sensitive, highly classified information. End of quote. So the first thing that kind of jumps out again, I don't know why I'm still addressing the conspiracy theorists because I've told them to stop listening. But, not right.

0:09:59 Thomas: But to see, they will have said, oh, that's exactly what a lizard person would tell me. So I'm still listening or something. I don't know. Yeah.

0:10:04 Andrew: Uh, Yeah, I guess, yeah, after, after doing uh gold fringe on the flag, I'm still I know I know they are. Um, I would point out that this is, right, this statement obviously cuts both ways. It, it contains a strong condemnation of Hillary Clinton's conduct, uh, in a way that you would not expect if, know, you had a partisan investigation, so right? What the director found was Clinton had no intent to violate the law, but was extremely careless. So what does that mean? And then in the, in the recommendation section, here's what Comey says. "Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All of the cases prosecuted involve some combination of clearly intentional and willful mishandling of classified information, or vast quantities of materials exposed in such a way is to support an inference of intentional misconduct, or indications of disloyalty to the United States, or efforts to obstruct justice."

0:10:09 Thomas: They're on to you, they're onto you, Andrew. Yeah. Okay.

0:11:15 Andrew: We do not see those things here. So what the FBI is saying is, even though she was very careless in having her emails transmitted on a private server and not on the State Department server, and even though that could potentially look like it violates some law, the way in which these cases are handled and our thorough review of how these cases are handled says, unless you intended to violate national security, unless You had this specific and willful mishandling of classified information, we don't bring these cases. And so we don't think that for anybody, for, you know, Joe Blow, that a prosecutor would move forward with a case on these facts. Okay?

0:12:01 Andrew: And Immediately after that statement dropped, a bunch of people who are critical of the Clinton campaign, including, as I referenced before, Rudy Giuliani, took to the air to say, that's not right. OK. And in particular, what Giuliani said was he said, look, there's a provision of the Espionage Act that says it is a crime to permit any document relating to the national defense to be, quote, removed from its proper place of custody or delivered to anyone in violation of his trust or to be lost, stolen, abstracted or destroyed. And the standard in that particular statute is gross negligence. Right. In other words, the statute doesn't say willfully and intentionally remove.

0:12:46 Andrew: It is to permit any document through gross negligence to be removed from its proper place of custody. And yeah, right, right. And so the argument then, if you wanted to break it down, would be determined that Hillary Clinton was extremely careless. Extremely careless is the same as gross negligence. The law, in this law I should say, the citation is 18 U.S.C. section 793 F.1. So the Espionage Act is 18 US.C., 793, and then there are different provisions. And as we'll see in this discussion, almost all of those provisions require, use the word willful or use the words willful, but one of them, F.I., does not. It uses this gross negligence standard instead. And so here's how Rudy Giuliani summarized it. He said, I don't have any doubt that I could win a case on seven 93 F one in front of a jury.

0:12:52 Thomas: I could kind of see something there that, that sounds like an interesting argument. All right.

0:13:45 Andrew: And so therefore, and this link is in the, uh. Blog post that is referenced in the show notes. He concluded, if I could, if he could win this case with Joe Smith in front of a jury, then anybody could have brought it, against uh Hillary Clinton. And the fact that they didn't means that she got preferential treatment. Knowing the punchline that no one has done, at least as far as I've seen what we're about to do here, can you take a guess as to how the Clinton supporters handled their response to Giuliani?

0:14:15 Thomas: Well, I don't know, other than to say that, I mean, a Republican said no, I don't think we could win in a case, you know, I don't, I said the exact opposite. So maybe I'm missing something. What am I missing?

0:14:27 Andrew: Yeah. So the link in the chain that I have seen from the Clinton campaign and from people who are generally of Hillary Clinton is this. Even though the words sound pretty similar, extreme carelessness is not the same as gross negligence. Okay. And so I've got a link. This was collected at the liberal site Media Matters for America. I say that not insultingly. I mean, I think that's proudly how they would identify themselves. It's a pro-Clinton site. And they gathered together Clinton supporters, including law professors, to say even though it seems pretty similar, gross negligence and extreme carelessness are not the same thing.

0:14:44 Thomas: Oh,

0:15:08 Andrew: So, yeah, Yeah. So let's, so let's think about the differences. Let's turn to the dictionary definition. This is the West's Encyclopedia of American Law. And here's how they define gross negligence. They say, gross negligence is a conscious and voluntary disregard of the need to use reasonable care, which is likely to cause foreseeable grave injury or harm to a person's property or both. It is conduct that is extreme when compared with ordinary negligence, which is a mere failure to exercise a reasonable care. Ordinary negligence and gross negligence differ in the degree of inattention, while both differ from willful and wanton conduct, which is conduct that is reasonably considered to cause injury. Now, how did that, how does that make you feel as a definition?

0:15:08 Thomas: Oh, I'm curious to find out what the difference is there. Well, I would say I am very surprised because that sounds like something that's kind of a matter of degree. It sounds like Comey could have made a case for that himself, self, but I'm curious. He didn't. So there must be some answer there. I think the answer is if you saw the Giuliani speech at the Republican National Convention, I think he's got some sort of roid rage going on or something.

0:16:15 Andrew: Yeah.

0:16:15 Thomas: So he's just really, he's like, come at me, bro. I could prove this case right now. Because he was, man, did you see that? He was insane. But anyway, so I think it's that. I Think he's Just got an overblown sense of what he could accomplish when Comey is He's like, no, truth be told, this is probably more in the regular negligence, ordinary negligence.

0:16:33 Andrew: And And I had the same reaction, which, which is to say, in looking just at the definition, could see it going either way. I think you put it very, very well, right? It's going to be a judgment call. And so if it's going to be judgment call, right, in my view, that lends some credence to the Giuliani side of the argument, right.

0:16:56 Andrew: It is to saying, I let me be, put it this If I were hired by the Clinton campaign to do a legal analysis and report back and say, can you tell me yes or no, Andrew Torrez, that conduct, and I should say the conduct is placing emails on a private server, so taking them out of the normal chain of command, While these emails were not designated as confidential in the official way, but nevertheless contained confidential information, and that contained confidential information in two ways. Number one, information that was retroactively classified as confidential, but not marked confidential in the documents. And number two, information that bore a little parenthesis with a C in the text of the document.

0:16:44 Thomas: Yeah, yeah, it

0:17:44 Andrew: So that is one part of the indicia of confidentiality, but did not bear a confidential stamp or header at the top of the email. Okay, so in other words, all of the information that we're talking about is information about which there can be a reasonable doubt as to whether somebody knew it was confidential or not, and about which the FBI determined that Secretary Clinton nor nor her staff knew it was confidential. And again, I want to just sort of go back to the prologue. If your judgment is, well, obviously she knew it was confidential, then again, you know, maybe you're going to drop out, you Know, yeah, because if you think she really did, it really is confidential and the FBI just gave her a pass. You know, that's your judgment, you know, uh, that's your judgment. Make it make a decision about it. If you accept the findings of the FBI, the FBI found after considerable investigation that she did not know that maybe she should have known. But it believed her testimony that she didn't know that any of this information was actually confidential.

0:18:21 Thomas: Sort of ends the argument, right? Yeah, all right, yeah.

0:18:49 Thomas: So, so something I kind of criticized her for on my show back in a few months back was she had said all along nothing was confidential at the time. It was all made confidential later. And I remember when this report came out, when the FBI's findings came out, that was something that I thought was kind of interesting that it turned out, oh, that wasn't true. There there was that, but also there was this other stuff you're talking about where it didn't have the confidential header, but it but it was marked confidential at the time with a little c or something like that. So I thought that was interesting, and in fairness, that sounds a little fishy, you know, if we're trying to be kind of fair about it, I I do think that she misled us there.

0:19:31 Andrew: Yeah, one, you've summarized that correctly. So out of the like 33, 34,000 emails, her initial public position was they contain zero classified information. It was all retroactively reclassified. And that's not correct. There were, my understanding is, a very small number of emails that contained classified information that was classified at the time, but was improperly marked. So it was partially coded with the C in the text, but it did not contain the full header.

0:19:34 Thomas: Okay.

0:20:05 Thomas: So, I I could see like If her normal, uh, we've we've all determined, I think, regardless of whatever you think here, that this private email server was a bad idea, but I I it does at least make more sense to me to think, oh, she was just used to this header, probably. So, because I I don't know what, well, we can get into it later, but I don't know what her motivation would be to like, you know, her sinister motives to do this. But I buy the idea that while it was technically wrong, obviously what she was doing, there's classified info. I could buy into, like you said, there's a reasonable doubt as to whether she knew about it. Cause if her normal MO is, oh, there's this header, I won't use the server for those. And these ones were improperly marked. That makes sense to me.

0:20:06 Andrew: There right.

0:20:48 Andrew: Yeah. And something that has dropped out from the story is there are, I don't know the number, there are thousands, tens of thousands, possibly more emails and email chains that would have contained the confidential or classified header and which never were migrated off the server, right? Right. In other words, there is there is also strong evidence that for unambiguously classified information, that that was kept within the chain of custody and and never removed. Right. So everything there is is information about which there is a question mark. But so now we go back to the looked at the definition and we've seen that it's kind of ambiguous. Ambiguous. Where should we go now? We've looked at a dictionary definition of gross negligence. Go ahead.

0:21:07 Thomas: Right. Oh, I know. I think we should look at past cases for what courts have decided constituted gross negligence for different cases versus regular negligence. Am I right?

0:21:44 Andrew: That's absolutely correct. I'm telling you we're going to convey, I'm going to get opening arguments accredited as a law school and like a diploma mill and we can convey it.

0:21:45 Thomas: Yes. Well but, here's the thing though, I'm an ideas guy, so I I could think of that as the right way to go, but I'm not going to do the work. Sorry. I can't. That's why I hired you.

0:22:01 Andrew: Right. So I did, that is not even the main work I did for this episode. I did that work. I looked at gross negligence cases, and I looked at them all over the place, right? Because negligence, I mean, the typical way in which these cases come about is liability, or slip and fall, or failure to maintain workplace premises, or all sorts of things like that, where you owe a general duty to keep the entrance way to your, know, building, you have you, a McDonald's, and you owe a general duty to the public that they're not going to slip and fall on your building because you've overpolished the floors. Right. And when they come and they slip and falls, they sue you for negligence. Right? You should have maintained this floor in better condition. So I didn't slip and fell. And gross negligence is a standard that kicks in when you are trying to get the jury to award punitive damages, right?

0:22:04 Thomas: Okay. I

0:22:52 Andrew: If you are just regularly negligent, then the jury will probably find you responsible for the actual damages that the plaintiff suffers. But if you're grossly negligent they they can award more money to the defendant and say, look you're not just going to cover her medical bills but we're going to award her, you $500,000 on top of that to punish you for doing something that you really, really should. I mean, this is not just you failing. We can understand, you know, people fail to exercise their proper care and things happen and whatever. And there's no moral approbation that attaches to it. We just think you're responsible. So go pay your medical bills. But when you've really screwed up, right, then we think, yeah, we are going to attach some moral approvation to this. We want to deter you from doing it again. We wants you to take it seriously and we're going to slap punitive damages on top of it.

0:23:39 Thomas: Feel like they should also make a sound when they read the verdict. Like, okay, here's the verdict plot

0:23:44 Andrew: I'm not going to summarize those cases, but what I'm going to tell you is that it doesn't help. That when I look through, and I've litigated these kinds of cases before, and you can find judges and jury verdicts that seem to equate gross negligence with being extremely careless. And you can find cases in which juries have said, well, while we thought this behavior was quite reckless, we don't think it rose to the level of gross negligence sufficient to award punitive damages. So you're absolutely right. We look through the case law and it doesn't help us. And so what I then wanted to do was assume for the sake of argument that Giuliani is right.

0:23:52 Thomas: Thickens here.

0:24:33 Thomas: Okay.

0:24:33 Andrew: Okay. And that, and that the, the, uh, critics of Hillary Clinton's behavior are correct that "extremely careless," as used by Director Comey, would be held to be the equivalent of gross negligence for purposes of applying the statute. Okay? And now I, I quoted part of it before, but, but now I think it makes sense to read the whole statute together. Okay, this is 18 USC 793 F1. It says, "Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information relating to the national defense, through gross negligence, permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, shall be fined under to this title or in prison, not more than 10 years, or both." Okay. So on its face, I think this goes to that, that first sentence of Director Comey's findings, which is to say, boy, the facts of this do seem to fit 793 F1, right?

0:24:54 Thomas: Okay.

0:25:41 Andrew: You have somebody who had lawful possession of documents and information, and those documents or information were related to the national defense and through gross negligence, because we're granting the argument. She permitted those to be removed from its proper place of custody. That is, removed from the Department of State secure servers and placed on a personal server. So that's it. Lock her up, right? Right.

0:25:59 Thomas: Secure server. Right. Okay. Done. All right. That's been opening arguments. Thanks for joining.

0:26:10 Andrew: So that's not quite the end of the matter, because in the recommendations, like Director Comey says, although there is evidence of potential violations of the statutes regarding the handling of classified information, I think referring to F1, then he says, our judgment is that no reasonable prosecutor would bring this kind of case. And And here, I would say, and I think there are two things that we want to look at here. So the first is, what do prosecutors do, right, when they have facts like this? It arguably looks like it fits the letter of the law. Do prosecutors tend to bring these kinds of cases? And then we would ask, why or why not, right? Right.

0:26:52 Thomas: Okay. Okay.

0:26:52 Andrew: And And the analogy that I think might be helpful here is you can look through your state's laws and you can find laws that are on the books that for which nevertheless we know cases are either not brought or are, you know, sort of minimally brought on the basis of those facts. So, for example, I just sort of picked that random Section 15402 of the Maryland Code, which makes it a criminal offense for a salesperson to sell an automobile within the state of Maryland using an out-of-state license, okay? And that's all it says, and that's punishable by $1,000 and six months in prison, okay.

Yeah, every state is going to have something like this. I can promise you no salesperson who's made an honest mistake, right, is going to get prosecuted under this law. And no sales person has ever been prosecuted under this and sentenced to six months in jail without, you having additional facts that are not required in the statute, right? So if you had a case where, you know, you had somebody who's been, know, deliberately defrauding people and selling, lemon cars and, you know, absconding, like the Simpsons monorail episode, right? Like, and just moving from jurisdiction to jurisdiction,

0:27:34 Thomas: Jeez.

0:28:08 Andrew: Right, yeah, and you had that, those kinds of facts, right. The law doesn't require that, but those are, that's really the only situation under which a prosecutor would bring a case. So the law doesn'T specifically say you have to have the intent to defraud, but the reality is if you just misplaced your license and you're like, oh, look, like I have a car dealership in three different states and I thought I had it in Maryland. Sorry, I applied in Maryland, didn't get it, thought my Pennsylvania was OK. My bad. Maybe you pay the fine administratively, you know, whatever. But you're not going to jail for that.

0:28:08 Thomas: Monorail, monorail. Let

0:28:40 Andrew: So

0:28:41 Thomas: Me Ask you this. Is it almost like the way they write laws is more to have the ammunition if they need it? Most of the time, you're not going to do the time in jail for breaking the text of the law, like as you've said, just the words in law. But when you've done kind of a lot more than that, and that's the law that applies to you, they're like, "Okay, we can send you to jail because of this."

0:29:06 Andrew: I think that is often the case. And there are some there are Some wrinkles to it. But there is in federal laws, entire enterprise is sort of up in the air. We used to have very, very rigid sentencing guidelines that were actually a matrix that gave judges exceptionally little in the way of discretion for how to sentence people. The mandatory application of those guidelines got overturned, gosh, almost 10 years ago now.

0:29:08 Thomas: But This has to do with whether the prosecutor is going to bring the case

0:29:35 Andrew: But yeah, right. Right. Yeah. This is the area that we call prosecutorial discretion, right? And so the question is, how do you bring a case? Because when you're a prosecutor, right, in a way, this goes back to our discussion of media and the early law and order episodes and those sorts of things. One of the big calculations you have is have to decide how you're going to go about bringing a case, what sort of plea deal you're gonna offer the potential defendant. Very few few cases really go forward to trial. And so when you bring a case, you want to bring a case as a prosecutor from a position of relative strength, right? No case is bulletproof, but you want go in and say, okay, here's what we're going to prove and here's how we're going to do it. And you never want to be in the position of starting off with a weak case and then discovering as you're halfway through it, oh, and by the way, there are these additional facts you didn't think of, and it's gone from being a weak case to being an unwinnable case, right?

0:29:38 Thomas: Right. Yeah. Right. Hmm.

0:30:34 Andrew: And that part of that judgment is to what Director Comey was referring, right? The thought process of you're sitting around at the office, you are, you the prosecutor, and you are talking to the lawyers who are with you on the case, andyou have to say, okay, are we going to indict here? And if we're going to indict, youknow, what are we gonna do? How are we we going to try and bring this case forward? And many of those cases, you know, you are persuaded not to indict because it would be difficult to prove on the facts that are there. So how do we figure that out from what prosecutors do with Espionage Act cases, right? One thing we could do is we could call them up and ask them. And I actually tried to do this and I couldn't find anybody who was willing to talk to me on the record.

0:30:40 Thomas: Yeah. Darn.

0:31:21 Thomas: It okay.

0:31:22 Andrew: So what I wanted to do instead was back into the question. So I fired up Lexis and I typed in the text of the Espionage Act, the citation of the Esponage Act, which is 18 USC 793, and when I type that into Lexis, I get 240 hits, and those, those represent cases that cite that particular provision. Of those 240 cases, uh, the vast majority are 793 E cases rather than 793 F cases.

0:31:35 Thomas: Yeah. Yeah.

0:31:58 Andrew: Okay? Um, what does that mean? The immediately prior statute. Okay, so, um, I read out F1, uh, E is the, is the subsection beforehand. And it says, whoever having unauthorized possession of or access to or control over any document, and then blah, blah, that huge long list that I read relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits, or caused to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted to any person not entitled to receive it, or who willingly retains the same and fails to deliver it to the employer or of the United States entitled to received it, shall be fined and imprisoned, not more than 10 years. So in other words, pretty much the identical provision as F, but the requirement there is willfully communicates, right? That is, has the specific intent that the FBI has determined that Hillary Clinton lacks.

0:32:36 Thomas: Yeah.

0:32:56 Thomas: So It's Like some double agent stuff or something, like you're, people are trying to leak

0:33:04 Andrew: That is exactly right. That is classic espionage. Most of the cases involving this then are not brought as F cases, are brought as E cases, and they involve agents from the 1950s sneaking in with their oversized novelty James Bond cameras, taking pictures of classified documents and transmitting them to the Russians. And time and time again, what we see is when a case is brought, it'll be brought under E and F and it will be prosecuted under E. But there are nine cases that were brought as F cases. And so I went and I read all 240 cases. I skimmed a lot of them, I will be be honest with you. But I read all of the F cases in detail. And a pattern began to emerge when I was looking at the F-cases. So let's start off with the first case I can find on record. This is the first time, as far as I know, anybody was ever convicted under 793F.

0:33:18 Thomas: What's

0:34:06 Andrew: And this case is called U.S. v. Gonzalez. The decision is from the United States Air Force Court of Military Review from from 1980, and it involves Staff Sergeant Arthur Gonzalez. And happened here was, staff, 1980.

0:34:19 Thomas: The year on it. Does it matter? Okay.

0:34:21 Andrew: So Staff Sergeant Gonzalez was was assigned to a post in Alaska, and he was carrying some stuff for a friend of his, and he accidentally included in with his stuff some confidential information. Okay. And then he went up to visit his friend who worked for, worked in the oil industry because he lived in Alaska. And they went to Prudhoe Bay, which is the base of the transatlantic pipeline system. So he got there, it was like a 700 mile drive. So he went to go visit his buddy and he gets there, looks at his stuff and says, oh no, no, I have included, I've thrown in here, uh, this classified information. Um, and so he says, okay, I know what I'm going to do. I'm Going to take these out. I'M Going to stick them in my desk drawer here in this Exxon office in Prudhoe Bay, Alaska.

0:35:10 Andrew: I'll give the other messages to my friend. Uh, and then when I leave to go back to the air force base, I'll get them out of my desk drawer and take them back. And then what happens is he forgot. Don't ask me. I mean, it must have been a great weekend. Right. Totally forgot. I left those. I let them in my desk drawer, and somebody else, room in which he had the office, somebody else, it was, it turned out to be shared space. Somebody else looked in, discovered these documents. They say "confidential" at the top, uh, and then, uh, they called the government and said, uh, "I don't know how this happened, but, you know, there are confidential documents, uh, from the Air Force in our desk drawer."

0:35:23 Thomas: Yeah. Yeah. Geez.

0:35:47 Andrew: So come and get them, okay. Uh, and the court, uh, convicted him under 793F, uh, gave him a bad conduct discharge, uh, solitary confinement on base for 43 days, and a reduction, uh, which I guess affects the pension. So you get a bad conduct discharge. They reduced Him to airman basic. So I guess you get less money, but they didn't, I don't, I should say I am in no way an expert in how military pay operates, but otherwise I can't figure out the importance of why you would reduce somebody in rank and then kick them out on a bad contact discharge.

0:36:02 Thomas: Poor guy. Oh.

0:36:13 Thomas: Yeah. That sounds right to me, yeah. That makes sense.

0:36:21 Andrew: Yeah, that's my semi-educated guess. Um, but that's what happened in that case. So you've got documents clearly marked confidential. Oops, throw them in the folder, stick them in a desk drawer, forget about them. Somebody else finds them. Okay. Next case, U.S. v. Gaffney, 1983, same court, Air Force, staff sergeant. And here was a guy who was in the chain of command and he was required to destroy confidential materials.

0:36:51 Andrew: Instead, what he did was took them home with him and threw them into a dumpster by his house. And because this is 1983 and we were not all helicopter parents in 1983, kids are playing in dumpsters. And so a bunch of kids were playing in the dumpsters, they found the documents, they pulled them out. They showed them to their parents. Parents called the Air Force and the Air Force said, what on earth are you doing? And he said, my basic intention was this is a quote from the case. And it's just great.

0:37:12 Thomas: Oh. I love it.

0:37:17 Andrew: So I have to read it. My basic intention Was at the times when I was to do destruction, I really had wanted to be home.

0:37:17 Thomas: Uh.

0:37:26 Andrew: And then the court notes, the reason for the accused priorities is that his wife was pregnant with his first child. Okay. OK, so clearly mark confidential. It's your job to put them through a shredder, incinerator, whatever. Instead, I'm going to take them home and throw them in a dumpster. From just these first two cases, you're going to see the basic fact pattern that comes up time and time again in these cases, which is to say somebody has documents, they're clearly marked confidential, they know they're confidential, they wind up in their possession either intentionally or unintentionally, and then they do something stupid, like put them in a desk drawer or put them in a dumpster. They do something where know they need to return the documents, but instead of returning the documents, they do something else. So, for example, next case, United States versus Roller. This is a 1995 decision from the Court of Appeals for the Armed Forces, and it involved involved, officer named Ricky Roller, which is a fantastic name. So that's why I made a note on that.

0:38:05 Thomas: Never Gonna We're This actually, this entire podcast is just a Rickroll, like that's all it is.

0:38:34 Andrew: Um, yeah. Yeah. Be careful when you click on the links in the show donuts. He's in the Marine Corps and he was responsible for code word and other classified material that came into his intelligence division. And he would have classified materials at his desk. He'd asked to be transferred to another division, all of his stuff up up from his desk in a gym bag, accidentally included some of these classified materials, then was at home because he's being transferred from one department to another. He's at home in between the transfer, looks in his gym bag discovers the material, then, and this is his own testimony from the case, afraid that he might get in trouble if he now returned the material. He kept it and stored it in a drawer in his garage.

0:38:40 Thomas: Yeah.

0:39:26 Andrew: He indicated that he intended to destroy the material when he got to his new duty station. However, you read the first two cases, you know what's about to happen, which is before that could occur, a moving company employee discovered some of the material as he was unpacking the appliance household goods. That employee subsequently consulted a bail bondsman to whom he owed money to inquire what should be done. And the Naval Investigative Service was notified investigation and brought in. And so Ricky Roller was tried by court-martial and convicted of violating 793F. He was sentenced to three years confinement, reduction to E-1. I don't know what that is because I'm not in the Navy. Forfeiture of $400 pay per month for those three years and a dishonorable discharge.

0:40:12 Andrew: And then that sentence was approved on appeal, but suspended for all but one year in confinement. So again, what you're seeing is this pattern of, I know it's material. I don't intend to remove the material, but then I discover it. And then feeling guilty, I come up with some kind of crazy jury rigged situation.

0:40:31 Thomas: So Was Clinton's email server discovered by a moving company or some kids or something? They were playing outside, her email server was in a dumpster, and she's, "Ah, crap, all right, I'm in trouble." Yeah.

0:40:38 Andrew: Yeah. Yeah. Yeah. All of these cases, when you go through, I mean, I don't know that we need to go through the facts of all of them. There are a I should mention, there are a couple of other cases that are no more helpful to the Giuliani position, right? Right. So there's one case, U.S. v. Chattin, which has been subsequently overturned, that basically said you can't be convicted of 793 F1 if you're the person who removes the documents. Right. Like it has to be, there has to be a third party involved. Right. There has to be, the the mover has to find them or whatever. And there was a later case that said, no, you know what, like, we look at the statute, it permits to be removed from its place of custody can include you're the one removing it from its place of custody.

0:40:51 Thomas: I think that pretty much establishes it. Okay.

0:41:30 Thomas: Right.

0:41:30 Andrew: There was another case, U.S. v. Bernard, that explored the limits of that, where somebody was charged with both F1 and with larceny for stealing a course notebook that was marked secret on the covers. And the United States Military Court of Justice said you can't convict him of both, right? You can either convict them of intentionally stealing it or you can convict Him of accidentally permitting it to be lost, but you can'T convict of both simultaneously.

0:42:00 Thomas: Yeah.

0:42:00 Andrew: But what we find is, here's the bottom line, there are no cases that are F1 cases, right, that say gross negligence, that nevertheless proceeded to a verdict on the basis of gross negligence. In all of those cases, there was instant recognition and testimony from the officer in question that, oh, yeah, yeah. No, I knew that was confidential information. I discovered it. I made a mistake at first. Then I felt guilty. I wasn't sure what to do.

0:42:30 Andrew: And so I put it in a dumpster. OK.

0:42:30 Thomas: Well Could you argue, though, because she deleted a lot of these emails, right, or, how, I don't know how conspiracy-theory-esque that is.

0:42:38 Andrew: The FBI report is that the email deletions occurred prior to the subpoena for the return of the documents. Right. Prior to there was a were investigations underway. Way.

0:42:49 Thomas: Oh. And Now also, let me ask you this. If, let's say, uh, let's say hypothetically, totally hypothetically, some of those emails were clearly marked with the header, you know, like "confidential," was, would her deleting it be the equivalent of if this guy had just actually thrown these documents into a fire rather than leaving them around for some kids to find them or something, and thus wouldn't really be punishable as well, do you think? Depends?

0:43:15 Andrew: Well, I, I think that if it bore the header, you would, it would still be punishable under the provision. It'd still be potentially punishable under the provision of removing from the chain of custody, right? So in other words, what makes this slightly distinguishable from the, uh, destruction case is in, in that instance, it completes the chain of custody to destroy the emails. But here, my understanding is that they were to be returned to be archived at the State Department.

0:43:17 Thomas: Okay. Okay.

0:43:44 Thomas: Gotcha. That makes

0:43:48 Andrew: And so, yeah. If any of the emails bore the header, then I think you would have a much more difficult case because you would then infer that level of willful intent, right? You would say, hey, look, we get it when, when, you know, you, you got 34,000 emails, um, you know, I mean, I miss Opening Arguments emails and we, you know, we only get a couple hundred of those, um, you know we get it that, uh, you could just be careless, right?

0:43:48 Thomas: Sense.

0:44:01 Thomas: Gotcha.

0:44:14 Andrew: But at the moment in which it, it bears all of the indicia of, hey look, this is a confidential document. I think that would be a harder case. I think that would have been a more difficult, it would be more difficult to maintain the FBI's findings if, if, if those emails had been so marked. Um, okay. So now we know that first part of what Director Comey said was true, uh, which is to say, doesn't look like prosecutors bring these kinds of cases. Um, if, even if on the facts, it seems to line up.

So, now you would want to ask yourself, well, why don't they bring these cases? And to figure that out, we need to take a look at a constitutional doctrine. Um, and that constitutional doctrine is, um, known as the vagueness doctrine. Okay. And basically, um... This doctrine goes back almost 100 years. Uh, and it says the following. That, um. It violates the protections of of the Fifth and Sixth Amendments to the Constitution, that is, the right against self-incrimination and the right to a fair trial, to have a law that doesn't specify exactly what it is that you've done that's a criminal act and then convict you under it, right?

0:44:14 Thomas: That makes sense.

0:44:40 Thomas: Sorry.

0:45:27 Andrew: So, you know, a paradigmatic case would be, right, if we just passed a law that said it's against the law to be a bad person and we're going to lock you up, right. That would be unconstitutionally void because that would then contravene the ideals of free, fair and just society that are embodied. Yeah. You got to know what it is that you can't do.

0:45:43 Thomas: You need laws you're breaking. Yeah. Yeah.

0:45:46 Andrew: Right. Yeah, that is, that is called the rule of law. OK. So the first case that I can find that really articulates this doctrine well involves a grocery store. And this is another one of these post-World War I cases. And we've talked about this in a number of previous episodes where, you know, you sort of have the changing demographics and the changing underlying facts about the country in the wake of World War I. You know, moving to an industrialized nation, having a surge in population, know, the country is is growing and prosperous and a full partner on the international scene and all of that. So there was called the Lever Act. And the Liver Act made it unlawful for any person willfully to make any unjust or unreasonable rate or charge in the handling or dealing with of any necessities.

0:45:47 Thomas: Huh.

0:46:33 Andrew: To conspire, combine, agree, or arrange with any other person to extract excessive prices for any necessaries. And any person violating the provisions of these sections will be fined not to exceed $5,000 or in prison for two years or both. Okay. And so that was essentially a war profiteering statute, right? Said you it's World War I, we're on rationing, you can't charge excessive prices for basic goods. Um, and so there was a grocery store that sold a 50 pound bag of sugar for $10 and 7 cents and a hundred pound bag of sugar for $19 and 50 cents. Um. And again, this is 1921.

0:46:52 Thomas: Okay.

0:47:14 Andrew: So that's the equivalent of like, yeah, $87 billion in today's, in todays, uh, currency.

0:47:14 Thomas: I Was gonna say I was

0:47:19 Andrew: Uh, I have done the math on this. Yeah.

0:47:20 Thomas: Like that sounds pretty reasonable. Yeah, normal prices for sugar.

0:47:23 Andrew: Right. And so this defendant, the Cohen Grocery Company, was charged with violating the Lever Act in feloniously making an unjust and unreasonable rate of charge in handling and dealing in a certain necessary, necessary. And the Supreme Court struck down that conviction. And they said, you know what, we think the protections of the Fifth and Sixth Amendment mean that you can't have a law that says if you charge too much, we'll send you to jail for two years. We have to be more specific in what it is that we're telling people they can't do. Otherwise,

0:47:23 Thomas: Sure. Hmm. I See, yeah.

0:47:57 Andrew: It's unconstitutionally thing. Make sense? Okay. So also know now from our previous history on Opening Arguments that courts are not proactively out there reviewing laws. A court can only review a law if it comes up in a case withstanding, that is a live case or controversy. So okay, if you're a prosecutor, in addition to the issues of proving your case before a jury on on fairness grounds and on demonstrating the facts and on making sure that it's clear, you also kind of, you want to ask yourself, well, on what, ground am I standing when I bring this case, right? How strong do I feel that the law itself is constitutional, right.

0:48:00 Thomas: Yeah. Right. Yeah.

0:48:40 Thomas: Because You could open yourself up to, oh sure, on paper it sounds like I have a case, but you also, so you're saying you also have to think about, what if this case, what if the law is not quite constitutional, and it wouldn't survive an appeal or something like that? Is that what you're seeing, yeah?

0:48:56 Andrew: Right. So let me, yeah. So lemme give you a great example of that. We see one of the things that but sometimes rebroadcast by lobbying groups are the stats that in a number of states, there, there are a number of laws on the books that prohibits atheists from holding public office. And I'm sure you've seen these memes that get circulated around, but nobody ever brings a case under that, right, so that, for example, that law is on the books still in Maryland, right? But we've actually talked about the case that specifically invalidated the enforcement of that statute. And so, you know, there is a non-theist, Jamie Raskin, running for Congress who's likely to win in, I believe that it's the seventh congressional district. It's my old congressional district, I used to live there. It's in Montgomery County, it was held by Chris Van Hollen. He's almost certainly going to win. He's an atheist. Nobody is going to sue to prevent him from holding office because everybody knows if you bring that case, despite the fact that the law is on the books, that the court would strike it down as

0:48:58 Thomas: Yeah.

0:49:15 Thomas: Write.

0:49:58 Thomas: Write.

0:49:58 Andrew: Unconstitutional.

0:49:59 Thomas: Write, so it's another consideration of a prosecutor, basically.

0:49:59 Andrew: Okay. And as it turns out, the Espionage Act is another one of these laws in which we actually do have some guidance for the court as to whether it is unconstitutionally vague or not. And the first one goes back to 1941. So this is right before World War II, I guess it's not before for the Polish, but before for us, right? U.S. didn't get, yeah.

0:50:18 Thomas: Hmm. Yeah. Before we've strolled along at the end and just kind of cleaned up.

0:50:32 Andrew: And it's a case called Gorin versus the United States, 312 U.S. 19. And this was a, you know, a classic espionage case. This was a spy-stealing documents. And the defense was that the statute under which he had been charged was unconstitutionally vague because it says, the Espionage Act says, possessing material that is, quote, "relating to the national defense." And you will recall that that's the words that are in in 793 F1 as well. And here's what the Supreme Court said. They said they rejected that defense of vagueness, and they said, "We find no uncertainty in this statute," the Espionage Act, "which deprives a person" "of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring intent or reason to believe that the information to be obtained is to be used to the injury of the United States or to the advantage of any foreign nation. This establishes that those prosecuted have acted in bad faith. The sanctions only apply when scienter, that means malicious intent, is established.

Where there is no occasion for secrecy, as with reports relating to the national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood, be no reasonable intent to give an advantage to a foreign government. OK, now that's not exactly on point, OK, because that was not a 793 F case, but that

0:52:04 Andrew: Does give us some indication that the Supreme Court thinks what makes the Espionage Act enforceable is the intent requirement. And there was, in fact, yeah, that

0:52:15 Thomas: Yeah, the idea. So let me, let me see if I can, if I'm Translating. Okay. So that what makes it enforceable and not vague is this idea that you'll have malicious intent, or, you know, that there's like, you're giving something to another government or you're doing something with it where it's clear, very clearly wrong. So, that's what makes it not too vague to prosecute. Is that that kind of what you're saying? All

0:52:36 Andrew: Is exactly right. And there was later, that was 1940, there was later a Circuit decision, United States versus Truong Dinh Hung, and another one, United States vs. Dedeyan, that essentially say the same thing and in both cases, right, so for example, this is what it says in the Truong case. The Fourth Circuit says, though the 793E, right, which is not F, does not contain gross negligence, but contains the willfully communicates, does not have the scienter language of another provision, which is even stronger than that, it does require that the accused willfully transmit the information. Relying upon this language, the trial court instructed the jury that it must find that the defendants acted in bad faith before it could convict and defined bad faith as designed to mislead or deceive another. That is not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive.

And the court said this instruction more than cured any possible overbreadth, which is another aspect of vagueness, but it's the same inquiry as to 793. Okay. So in other words, we have multiple courts now who have said, they've not said clearly, 793F is unconstitutionally vague if you just allow it to be brought in cases of gross negligence.

0:52:37 Thomas: Right. Yeah.

0:53:56 Andrew: But what they have said is we don't need to determine that the Espionage Act as a whole and that other provisions are vague or overly broad because the provisions that cure them of that are the the provisions that require a specific intent to injure, that require you to know you are transmitting something that is contrary to and likely to undermine the national defense of the United States. So from that, I think that's what explains the behavior of the prosecutors in these cases, because When you go and you read the text of the law, right, it does seem to suggest that you could have, you know, you could have no specific intent and yet nevertheless be found guilty under the law and sentenced to prison for conduct where you are not fully advised in advance whether that conduct would comply or not. And that's the classic vagueness situation, right? That's the grocery store. Well, you know, okay, I can't sell my sugar for 20 bucks a bag. Can I sell it for 10?

Can I sale it for five? Tell me what I need to do. And we've decided as a society that we don't want to put people in prison when we haven't told them precisely what they need to. And in fact, you can look back to some of the legislative history that's underneath the Espionage Act and that I go into this in a little bit more detail in the blog post.

0:54:31 Thomas: Yeah.

0:55:25 Andrew: But that also helps to confirm that there was never an intent for the Espionage Act to not involve some level of intentionality, some level of intent to injure the United States. It does run the gamut of kind of a wide variety of conduct. So for example, you know, when they were We're debating Provision F, sponsor of that. I've talked about how we can sometimes look at legislative history.

0:55:54 Thomas: Yeah. I remember that. You can Look at the intent by by how the different draft versions and the different, uh, yeah, that's really cool, uh-huh.

0:55:55 Andrew: Yeah, yeah. So it was Pat McCarran, who is a Democrat from Nevada. The airport out in Las Vegas is named after him, who proposed adding subsection F to the Espionage Act. And here's what he said on the floor of Congress. He said, the next situation in which Interdepartmental Intelligence Committee wished to remedy was the danger inherent in the failure of a person entrusted with any item relating to the national defense to report properly and promptly the loss, theft, removal, or disappearance of such an item. So as an example, if a code officer in our embassy at Moscow should come to work some morning and notice that the main code was missing through no negligence of his own, under existing law he could sit tight and do nothing, and his failure to institute a search or even to warn the department that the code book was missing would not constitute an offense. My bill would make it a crime for him to fail to report the loss properly, promptly so that the proper steps can be taken by the American authorities to change the code.

0:56:56 Thomas: Wow. That's a really good info right there.

0:57:01 Andrew: Yeah. Um, so you put all of that together. Uh, I have now recreated the research that Director Comey's staff was asked to do, which was, again, I'm surmising and kind of reasoning backwards. They made the factual findings, which we quoted at the beginning of the show. And then I think he said to the lawyers on his staff, OK, these are the facts. Now go out and read the cases and tell me, you know, deliver me a memo that says, should we consider indicting in these cases? And I think they did what I did. They went back and looked and they said, yeah, you know what? It doesn't look like anybody brings these kinds of cases on these kinds of facts. And the reason why we don't bring these kinds of cases, on these kind of facts, is because we do not want to be in a position where an appellate court is overturning provisions of the Espionage Act, right?

0:57:01 Thomas: Right.

0:57:53 Andrew: We don't want to put that into question on these sorts of weak facts and let an appellate court or the Supreme Court of the United States say, uh, if there is a conviction, right, not getting a conviction would be a bad thing too, right? If you're a prosecutor because you've invested A lot of time and effort into it, but we could get a conviction from a jury and then lose on appeal on an argument about unconstitutionally vague, and that's why prosecutors don't do that. They wouldn't do that if this were Joe Smith. We're not going to do it if it's Hillary Clinton.

0:58:24 Thomas: Well, Here's, here's What I would say though, that's interesting to think about the partisan part of it, because that would have been, I mean, if she had been convicted, even if, you know, she later could have appealed it and overturned it, that would have killed her campaign, I'm sure. So, but it's interesting to me that Comey, even knowing that, I, I would wager my non-expert opinion that that wasn't the only reason why he, they didn't bring charges, just the the threat of, an appeal or something like That, don't you think?

0:58:25 Andrew: Yeah.

0:58:50 Andrew: No. I think it's, I think I think the, when you write, and I've written these kinds of memos, I mean, I've, I'm not a, a former prosecutor. I have a lot of friends who have, who've taken that route. But you, you write the same kinds of demos when you are a junior staff attorney in, you know, in a civil case, when You're talking about, you Know, should our client wants to know whether they should sue so-and-so for infringing on their use of trademark. They've used it in this way. Go read the cases, come back, make a recommendation, right. Right. So this is something that lawyers are trained to do. And the incentives are a little different, you know, based out of the prosecutor's office, as opposed to there's a client paying money for this. But it's the same kind of calculation. So I think it's the first part that is the most important.

0:58:53 Thomas: Yeah. Yeah.

0:59:40 Andrew: I think the staffers returned to Comey and said, boy, we can't find any case on the facts in which somebody has been able to, get a guilty verdict from somebody for non-willful gross negligence, misplacing of confidential information or removing it from the chain of custody where there are no other facts, right? So we could very easily imagine, we've already talked about some of the other facts that would change the calculation here. Certainly if there there were evidence that Secretary Clinton's email server were hacked and that those emails were used to the detriment of United States national security, right? That would be a tremendously bad.

1:00:03 Thomas: Oh.

1:00:20 Thomas: That would Be enough, or would, would it be, she would also have had to, like, not tell somebody that it was hacked?

1:00:25 Andrew: Yeah. I mean, but I don't know that that would be enough, but it would certainly start tipping you in a different direction, right.

1:00:28 Thomas: Okay. Because Because It's Weird to me, because that, that seems like then she just got lucky, that, you like, it wouldn't be, she didn't do anything different, she just got lucky they didn't get hacked, and that seems like a weird reason for it to be the difference between legal and illegal or something. But maybe that's my non-lawyer brain.

1:00:48 Andrew: Yeah. Well, but keep in mind that, I mean that that outcome judgment happens all the time. Right. Like the difference between attempted murder and murder is competence.

1:00:49 Thomas: Okay.

1:00:58 Thomas: Well, I don't agree with that. A lot different story. I feel like if you try hard enough it should just be the same as murder, but anyway, different, and Well, I

1:00:59 Andrew: Right? Yeah. Well, lots of people have those kinds of debates. But my point is, you'd ask the question, was the decision not to indict made solely on the basis or largely on the basis of risking an appeal? And I don't think that's correct. I But I think, in other words, having done the review and having looked at the case law, Comey's statement really jumps out at me now as a lawyer, as the kind of thing that I have written before in a different context, Which is to say, yeah, we did it. Here's our findings. You look at the law, you might make an argument that this violates the law. And we did that, and we looked at it. But when we dug deeper, we realized that regardless of how it looks like and what argument you might might want to make, that no prosecutor would bring a case with the facts that we have, just on the basis of the facts that we have.

1:01:23 Thomas: Was right, I Was saying it wasn't. Yeah.

1:01:36 Thomas: Yeah. Yeah.

1:01:58 Thomas: That's that makes a big difference to me, because I would think with Comey being a Republican, he's going to err on the side, or he was going to want to lean toward being able to prosecute her if he can, you know, really seems like. And because it would just be, it would have been devastating for a campaign. So that shows me even more that, yeah, this is just not something that a normal prosecutor would do. You know, it seems to me.

1:02:22 Andrew: Don't want to get inside his head. I would say, if you had the ability, of your political field and regardless of your political ambitions, to bring a case against Hillary Clinton for violation of the Espionage Act, there, there's a tremendous amount of incentive to do so, um

1:02:40 Thomas: For me, I think you've, first off, I wanted to say this was really, really educational.

1:02:40 Andrew: Yeah.

1:02:48 Thomas: It's so cool. I'm so happy to be a part of the show. It's, it'd be so fun because this explains everything so, there's so much detail behind this. It's not really just as simple as these words say this, that the law is this and she technically violated that, so therefore lock her up, you know, like, it, it's so much more complicated, and you've built a really good, uh, picture for us to be able to judge it for ourselves. I think I'm, not I'm guessing some people come, obviously, to different conclusions than, you know, you or I might, but still we've got so much background to work with now. I love it. And I think for me, the main, the main factors that you described, uh, ones that jump out to me are just, just like, what would be the overall plan of her? Like, there's no malicious intent. You know, there's no, I don't understand what she would have been trying to accomplish.

1:03:35 Thomas: She clearly wasn't trying to give any secrets to another government. She wasn't, she maintained that she didn't think anything was classified. So that's consistent with the things you said about, you know, every other case was somebody who knew stuff was classified, they discovered, they accidentally put it somewhere, and then they covered their tracks by hiding it in a desk or whatever they might have done. And it just, I think you've really built a good picture for why this case just doesn't really fit that, even though it's, it's not like she did everything perfectly right, of course, but it just doesn'T quite meet the burden. It seems like to me.

1:04:08 Andrew: I would be very leery about encouraging an interpretation of the law that sentences somebody to 10 years in prison for making a mistake. Right. And, and, and I mean that, making a mistake in the legal sense, right? Like, you really to have somebody adjudge you of having no criminal intent, but nevertheless, on the basis of your conduct alone, for that to be as worthy of spending 10 years in jail, I would want to tread super lightly in that area. And I would want and I would want that to be the case for Democrats, for Republicans, for everybody, because, you know, by and large, our criminal justice system is predicated on the idea that you are those people who are have intentionally in their minds made a determination to engage in criminal behavior. Should Hillary Clinton be busting rocks in Leavenworth, right, should, would, would she be in jail if her name were Joe Smith? Uh, and the answer, I think, is very, very clearly no. I think there's no doubt about that. But if you want to ask the question, can I vote against Hillary Clinton because I'm mad about what she did? You could.

1:04:18 Thomas: Yeah.

1:05:08 Thomas: Well, well, there you go.

1:05:18 Thomas: Well, thanks so much for that. That was really awesome.

1:05:20 Andrew: This was a lot of fun. It was a lot of work, but it was a lot of fun.

1:05:23 Thomas: Yeah. Yeah, well, I think it was work well spent. I really think a lot of people are going to benefit from that.

1:05:28 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

1:05:38 Thomas: All right, this. Closed arguments. Does the Third Amendment prohibit mass surveillance?

1:05:44 Andrew: This comes from, we actually tweeted about this from our account at OpenArgs.

1:05:48 Thomas: Yeah, make sure to follow it.

1:05:49 Andrew: Yeah, this is an Ars Technica article that says, California lawmaker proposes an unusual legal theory. Could the third amendment be used to fight the surveillance state? And I consider this a closed argument because the answer to this is no. And it's super clever. The article will be linked in the show notes. The third amendment is the amendment that prohibits the quartering of soldiers in persons' houses during wartime. And you know, that is a provision that responded to unique conditions that were in place at the time of the American Revolution, in which the British government would force people to house soldiers in their homes. And it was one of the major grievances listed by the colonists in Declaration of Independence, which which, again, we know has no legal force, but does help inform why that particular amendment was added to the Bill of Rights.

1:06:47 Andrew: That was something that stood out as an injustice at the time. And we have given Antonin Scalia an awful lot of much-deserved criticism on this show for, you using creative arguments about the framers intent behind provisions to sort of insert his own personal beliefs and conservative judicial outcomes. But that said, I should say, I mean, in defense of originalism, and this is as little a defense as you're going to get from me, you do want to start with the question, when you ask what a provision of the Constitution means, you want to start with the question of, right, what did the people who wrote this intend for it to do? Now, the reason why Scalia goes off the rails is that in many cases, right, when we have the framers intended for this to protect due process of law, they intended to enshrine a kind of a vague principle that would then get interpreted over time.

1:07:41 Andrew: And to say the only thing that matters is what counted as due process in 1787 is just, it's tautologically wrong. It's contrary to what the framers intended at the time that they enacted the Fifth Amendment. But we don't have that problem with the Third Amendment. We know what the Third Amendment was meant to do. It was meant to prohibit a government from forcing you to quarter soldiers in your home during wartime. And that's all. And there's zero jurisprudence on it. There's zero ambiguity. There is zero kind of deeper moral principle, and I would oppose an effort to expand the Third Amendment to include the prohibition on surveillance as an extension of quartering soldiers as being the actual left-wing equivalent of the kind of right-wing judicial activism that Scalia pioneered. I think that this is a case where if you can muster, know, enough to get legislative action, I know passing laws is hard, but I think you go out and you persuade, you know, 60 members of the Senate and a majority of the House and our next president to pass a law that that prohibits the NSA surveillance.

1:08:08 Thomas: Yeah. Yeah, don't be judicial activists so that we can still make fun of Antonin Scalia and not have the argument come back at us. I Would say, in general, it sounds to me, let me just see if I understand you correctly from the show, basically anything involving the Third Amendment is going to be a closed argument, like pretty much anything you could say about it one way or the other, it's going to like, nope, this means don't quarter soldiers, done, closed argument, yeah.

1:08:49 Andrew: Yeah, exactly.

1:09:12 Andrew: Yeah, that's exactly right. Right. It is the only constitutional provision, it is the only provision in the Bill of Rights that is the equivalent of, you know, the speed limit is 55 miles an hour, right? I mean, it specifies exactly what can and can't be done. And the reason there's no jurisprudence about it is because it was never intended to enshrine a principle that evolved over time, unlike most of the rest of the Constitution. And, you know, and again, we saw that even today in this episode in In an unrelated case talking about vagueness, you know, didn't use the magic word penumbra, but the court did say, you know, hey, look, the Fifth and the Sixth Amendment kind of mean there's no provision in the Constitution that says you have to be charged with a crime that's not too vague, but we determine this doctrine based on, you know, the animating principles behind it. But Third Amendment, there are no animating principals behind it, it just prohibits a specific kind of action.

1:09:13 Thomas: Yeah. Right.

1:09:35 Thomas: All Right, good stuff.

1:10:06 Andrew: Closed case.

1:10:06 Thomas: So I I, yeah, case closed. All right, that does it for me, what a great episode, thanks Andrew, for doing all that leg work and bringing us that information to, to really make us more informed, next time for the argument with our families, did

1:10:22 Andrew: Thanks again, it's uh, it's always so much fun to do this show, uh, I think every episode, uh, we, we do something a little different and we're having a lot of fun. Okay.

1:10:31 Thomas: Righty, see you next time.

1:10:40 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.