OA423: White Collar Crime Explained, with Randall Eliason

Transcript

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

0:01:17 Thomas: Hello and welcome to opening arguments. This is episode 423. I'm Thomas. That's Andrew. How you doing, Andrew?

0:01:23 Andrew: I'm doing fantastically well, Tom.

0:01:24 Thomas: Doing better this episode much happier than the last one. I assume. I mean it doesn't get much worse, so

0:01:29 Andrew: Yeah. And you can't do better than having Randall Eliason on as a guest. So yeah,

0:01:37 Thomas: Absolutely can't wait to get Randall on. In the meantime, I the spreadsheet, it says upcoming, "Alan Dershowitz has lost his" uh several expletives, and then mined, care to explain? Wait.

0:01:49 Andrew: I think we can safely keep our clean rating and say Alan Dershowitz has lost his goddamn mind. Um, Alan Dershowitz has filed a 300 million dollar libel lawsuit against CNN for portraying him as, quote, "an intellectual who had lost his mind," end of quote, and uh I I just

0:02:09 Thomas: So it's not related to the Epstein stuff, I just assumed that's what it was gonna be.

0:02:11 Andrew: Oh No, no, it it relates to CNN's commentary on Alan Dershowitz's analysis of the Trump impeachment. This this lawsuit is the kind of thing that you would file only if you had lost your mind. So Alan Dershowitz, remember, Opening Arguments is a production of Opening Argument's Media LLC, a Maryland limited liability company. Company. I hope that you will be suing us as well.

0:02:28 Thomas: My god yeah so It is the only lawsuit that can offer itself as evidence. It could be, like, "Well, you're you may please the court, we submit the lawsuit that we're here for." Yeah.

0:02:51 Andrew: May please The court, a Florida personal injury attorney to file a $300 million defamation lawsuit, lawsuit against CNN for saying accurately that his legal analysis and and arguments made during the Trump impeachment were nonsense, which which they were. Right. It's great and crazy. And and again, I want to quote from paragraph eight. Right, this is from the allegation, defamation, libel and slander.

I'm quoting from the middle of the paragraph, uh, quote, "Following the airing of that clip, clip of Dershowitz's testimony over and over again, the hosts, together with their on-panel guests, including CNN employees and paid commentators, exploded into a" "one-sided and false narrative that Professor Dershowitz believed and argued that as long as the president believes his re-election is in the public interest, he could could do anything at all," underline, "including illegal acts, and be immune from impeachment. The very notion of that was preposterous and foolish on its face, and that was the point, to falsely paint Professor Dershowitz as a constitutional scholar and intellectual who had lost his mind." Again, Alan Dershowitz is a constitutional scholar and intelectual who has lost his mind, and if you want more analysis on that, you have to wait for an upcoming episode of OA.

0:02:57 Thomas: Geez. Yeah all right Well, that that's about as fun a preview as it gets. I'm excited for that. Um.

0:04:31 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:04:36 Thomas: All right, and we've got an anonymous listener question here. They say, "Hi, I was wondering if you could cover on your show if Trump's now known to be purposeful misinformation campaign in February slash March could qualify as second degree manslaughter, as defined by New York law. I realize a key factor would be the case law informing defining recklessly, which I have no idea how to find. Feel free to skip if you think this is too hot, polarized topic." Yeah, right, that's never why we skip anything, anonymous listener, uh okay What do you think, Andrew? Yeah.

0:05:10 Andrew: Anonymous um I wanted to answer this for for a couple of reasons. Uh, obviously, no, no topic too hot for OA, uh, we should, you know, produce 1990s style, uh, 1-900 commercials for that. Um, but we've gotten a lot of of these kinds of questions. Right, we still have not really done a deep dive on the Trump Woodward interview. I don't know that that we need to. Write, like, there's not a lot. It. I think the political consequences are more serious than the legal consequences. And so this was really illustrative of a lot of the legal stuff that came in, which, I understand the predicate of the question. The predicateof the question is, hey, the president of the United States knew that COVID was bad and went on television and didn't just say, "Oh, it's not going to be that bad," but disparaged, ridiculed and belittled people who said it was going to be that, uh, engaged in a

0:05:19 Thomas: They

0:06:11 Andrew: Series of hyperbolic and ridiculous statements, encouraged people to undertake quack treatments, right, like, did acted in such a way that if he were not the president of the United States, right? If he were the president of Pfizer, and these were all in connection with developing a COVID vaccine, this person would be under indictment, right. So that's the gravamen of the question and lots of other parallel ones. It is, as I said, a sensible and well-meaning question for that. And I love the reason I picked this one out in particular is because they're thinking, well, and not just trying to start to do homework, but but I think the reason they said under New York law, right, is because they were looking for state law, right? Like he was in the state of New York, made that right. So no possibility of Mike Pence pardoning him for this. Right.

0:06:49 Thomas: Tried to start doing a little homework on it yeah well also wouldn't it just be that there isn't federal manslaughter law? Yeah. But also not pardonable, sure.

0:07:07 Andrew: And sure. Yeah. But there might be other. Yeah, yeah, right. I mean, I that's I it may be both, but I'm choosing to vest our listeners when thinking like multiple chess moves ahead of like, you know, let's let's get them on state law crimes. Right. So New York Penal Law Section 125.15 says a person is guilty of manslaughter in the second degree when he recklessly causes the death of another person. Right. OK. And it's a class C felony in New York law. So is Trump guilty of that? Super clever. It it it does not have anything to do with the case law informing or defining recklessly. I think that the

0:07:16 Thomas: Sure well Who would have standing, and in what state would this apply, if he's the president? Would it be in any state where there's a victim, allegedly?

0:08:02 Andrew: The the question for standing purposes would be where Donald Trump was when he made the statement, when he engaged in the plans and the actions, and knowing that he spends an awful. Right. And it's either going to be one of three places. Right, it's either gonna be Trump Tower in New York, Mar-a-Lago in Florida, or Washington, D.C. And you could look and find the parallel statutes in D.C. and Florida. And what the court is going to do is undertake a totality of the circumstances test to figure out which state has the closest connection to the crime, and therefore which state would be able to indict him if there were a crime that were committed. But sadly, there is not. The president enjoys absolute immunity for all actions undertaken as president in furtherance of his duties as president. We talked about this a little bit in last episode in talking about the E. Jean Carroll issue.

0:08:59 Thomas: Well all the time I mean We've been talking about this for four years, the remedy is impeachment. The the remedies impeachment. Yeah.

0:09:01 Andrew: Right. Yeah. And and look, if you could arrest a president under state law for undertaking an action as president that recklessly caused the death of another person, then the Republicans would have had the state of Alabama arrest Barack Obama over Benghazi. Right. Obama and Clinton. Right. Like being president means making life and death decisions. Being president and being a thoroughly dishonest, corrupt game show host means incompetently making life-and-death decisions. But the level of competence is not what our criminal justice system evaluates. So nothing. There must be political consequences for this. If there are no political consequences, there areno consequences. So, again, goes heavily in with our theme of this show. If you think there should be political consequences, then impose them on this president.

0:09:23 Thomas: Yeah

0:10:09 Andrew: And that means going out and voting Biden-Harris. It's the only thing you can do. And it doesn't matter. You know, we say this every single episode. We're going to keep saying it until the second week of November. Well, to the our Friday episode on the first week of November, which hopefully will be a very, very happy episode. It there are, if you think all of these are things for which there must be political consequences, and you cannot simultaneously be angry and want to impose political consequences and not want to vote for the Democratic ticket, so there you go.

0:10:45 Thomas: Everybody, yeah, so no, no, no, gotcha on this one, that's unfortunate but it's consistent with what we've learned on the show over these past four horrible years. Can

0:10:55 Andrew: And again, look, we're going to be talking. Lots of people have asked, hey, what's opening arguments going to do in 2021? And the answer is, right, we're going to hold Joe Biden's feet to the fire. We're going to cover eminent domain. We're going to cover state laws. Like, we're going to do all the stuff we've continued to do. One of the things that I've hinted at that I really, yeah, go ahead.

0:11:16 Thomas: I just sorry. As If there's any worry who out there right now is thinking, "Geez, what will OA do if things are just too great in a few months?" Like, I have no that is the the furthest from my mind. Is things are going to be just too good to even have a show. Like, yeah, first off, that would be awesome. I'll take it. I would trade the show for not the, uh, you know, eugenics that's happening on the, the, in the border and all that and

0:11:33 Andrew: Yeah. Yeah. Yeah. Correct. Yeah, I could go back to practicing law full time. Right. Like have skills, you have marketable skills, else. Of the things that we're going to do is we're going to cover the kinds of reform that are necessary to help protect against Trump again. Right.

0:11:49 Thomas: All, you Know, I could, I got, I got stuff I can, you Now things. Yeah.

0:12:10 Andrew: And so there are lots of people that are going to be out there. They're going be proposing. Right? Like all of those proposals are going to start with, Trump did this, let's make it illegal for future presidents to do And that's not a bad starting point. But but I do want to say with this, that that changing the rules to allow presidents to be criminally liable for the consequences of their political decisions, no matter how stupid or poorly intentioned, would be a terrible reform, would be instantly hijacked by by the right and used to stymie every every future Democratic president. President So, um, it's

0:12:10 Thomas: Yeah, So That wouldn't be even on your list of things we want to do, it's not a good idea.

0:12:52 Andrew: It's it would Absolutely not be Something That that I would want, right? Like, what you do is you don't elect deranged game show hosts as president. There it is. So, um, clever, good thinking. But that's why, not only is it not against the law, it shouldn't be against the law.

0:12:53 Thomas: Yeah. There's your remedy. Well, Great Answer. We really appreciate the question though, thanks for sending those in, everybody, uh, it's good stuff. Are joined again by Professor Randall Eliason. He's got the new Great Courses course out. We promised we'd have him back to talk about that. And here you are. How are you doing today, Randall?

0:13:12 Clip: The law breaking down

0:13:30 Randall: I'm doing great, thanks for having me back!

0:13:33 Thomas: No problem. We always love having you on the show.

0:13:35 Randall: Can I ask a preliminary question before we get started, though?

0:13:38 Thomas: You'll have to direct it to my attorney, Juan P. Andrew Torrez.

0:13:43 Randall: I was curious, Thomas, when you stopped being an inquisitive interviewer and became a comedian.

0:13:48 Andrew: Yeah, on advice of counsel, I'm instructing him not to answer that, plus

0:13:53 Randall: Oh, that's how it's going to be, huh? It's going be one of those depositions. I

0:13:53 Thomas: Yeah yeah uh well a referring to the change in the intro, um, yeah, that's that was something that was that way, and then even going back, the uh, the description of the show had it, the comedian way, for the whole time, so it wasn't, I just changed them to match and uh, the reason is because I just think that it's a way better elevator pitch to be like, "Hey, we got a lawyer and a funny guy together." That's what's understandable, five-second pitch, having to be like, "We got a lawyer." I mean, there's a guy, he's just, he's he asked questions, he's no qualifications, he's kind of there, but he asked questions, and hopefully they're good ones, and that just, I don't know, it's easier to just give the five-seconds funny guy and lawyer thing, hmm

0:14:13 Randall: Was going

0:14:41 Andrew: The implication that I'm not funny means that on the rare occasions where I manage to stick the landing on a good joke, it's like twice, yeah, it's twice as good, so, oh,

0:14:45 Randall: To say, we have a lawyer, and lord knows he can't be funny, so we need a funny guy. Yeah,

0:14:49 Thomas: Yeah. Your entire identity is just lawyer. It's distilled down to that, yeah.

0:14:55 Andrew: I knew what I was doing when I was, I went to law school, like never have another, but we have somebody on whose identity is both lawyer and now, uh, Great Courses instructor, so. Uh, so talk to us about your course well

0:15:07 Thomas: Well,

0:15:07 Randall: Well, thanks. I really appreciate you having me on. Appreciate the opportunity. Yeah, so I'm pretty excited. You know, if you're familiar with great courses, basically their thing is they take courses by professors from around the country and put them on a video format. Format. Um, and, uh, so people who don't have the opportunity to go to that school or are out of school, you know, can, can basically attend the course by watching the videos. And there's a, uh you know a guidebook that goes with it. And so this is, uh the course is called White Collar Criminal Law Explained. And it's basically, uh. The white collar crime class that I teach at at GW Law School, and includes 24 30-minute lectures, video, and then a 240-something page guidebook that goes with it. And you can buy the DVDs, or you can stream it and watch it online, or just get the audio if you want to just listen to it in your car and not watch me on video.

0:16:05 Andrew: A, that sounds amazing. Uh, B, I, Great Courses has sponsored this show, but like, we love Great Courses, so uh, and, and C, obviously, you know, this is your 500th appearance on the show, like, you, you have a gift of being able to explain the law that we love and recognize. So tremendous match on all of those. Why don't we kind of start with the basics just for the audience? Like, how would you define white collar crime?

0:16:26 Randall: Thank Yeah, that's a great question, and it's actually sort of the topic of the first lecture, sort of what is white collar. And the term is pretty interesting because if you go to the criminal code, for example, and try to look up the section that's titled white collar crimes, you're not going to find anything. It's not an official definition. There is no one official definition. And, and, and the term itself, the, the term itself has, its roots are actually in sociology, not law. So it comes from a sociologist named Sutherland back in the 30s. And he was arguing, he defined white collar crime as crimes committed by a person of high social status in the course of their profession, respectability and high social status. And so he was arguing against sociology theories at the time that said crime is primarily caused by poverty and desperation, and it's primarily a problem of of the lower classes. And he said, look, there's this whole area of crime committed by people who are not impoverished. They're well off, they're wealthy and powerful, and they commit crimes anyway.

0:16:55 Thomas: Yeah, Yeah, you have to do the secret handshake and then they give you the other law book that has those.

0:17:41 Andrew: Look, get in a time machine, travel forward to 2017, then come back. And the sociological theory will be obviously false yeah

0:17:45 Thomas: Yeah. You the reason Trump commit so much crime is his hard scrabble upbringing.

0:17:53 Randall: So he said you're not accounting for this type of crime, and he called that white-collar crime. So he was focused on the nature of the offender, a sort of white collar executive, right? In criminal law, one of the first things I have to tell my students is the name white collar crime is kind of a misnomer because it sounds like you're talking about a type of offender. Like a white collar person, right? But in criminal law we're actually talking about a type offence. So because in criminal we don't, criminal law doesn't differentiate when we're defining crimes based on the social class of the ofender, like a poor man who commits Medicaid fraud to get the medicine he needs to live and a doctor who commits Medicare fraud to buy a new Lexus. They both commit the same crime

0:17:54 Andrew: Anyway sorry

0:18:03 Thomas: Hmm.

0:18:39 Andrew: Would

0:18:39 Randall: In terms of the elements of the offense and what the government has to prove, right? They'll be dealt with very differently in terms should they be prosecuted at all and what charges would be appropriate and what sentence and all those things, but it's the same time. So for criminal law purposes, white collar is not talking about a type of offender. It's talking about type of offense, no matter who commits it, or the class of the person who commits it. And like I said, there's no official definition, but the definition that I use in my class is white-collar crimes are non-violent illegal activities that use fraud, deceit, deception, concealment, or some other kind of misrepresentation to get money or property or some another advantage, or to cover up other wrongdoing. Because there's also this category of white- Collar crimes, crimes, perjury, obstruction, false statements that we call cover-up crimes to sort of conceal some underlying misconduct.

0:19:30 Andrew: Would would you restrict your definition with respect to the underlying misconduct as well yeah

0:19:37 Randall: In a cover-up crime? Yeah, no. And, you know, this is something that came up a lot during the Mueller investigation. Cover-up crime, you don't have to be concealing an underlying crime, right? You know, there's that old saying, the cover- up is worse than the crime. I think it arose during Watergate, maybe. And it's kind of a flawed saying for a couple reasons. Reasons. First of all, the coverup itself can be a crime, right? And then secondly, what's been covered up doesn't have to be criminal. It could be politically embarrassing, for example. So we heard a lot during the Mueller investigation, one of the arguments of Trump and his supporters was if there was no collusion, which also is not a crime. If there was an underlying criminal activity with the Russians, how could there be obstruction? You can't have obstruction unless there's an underlying crime. And that's just nonsense. You can have obstruction to conceal seal things that would be politically embarrassing, things that would be personally embarrassing, things that might be financially damaging, even if they're not criminal.

0:19:39 Andrew: Exactly yep Yep.

0:20:35 Andrew: Let's go down that bit of a rabbit trail for a second. It strikes me that it is very likely common to have those kinds of cover-up crimes in the business world as well as the political world, right? Right. Like you would want to cover up various business dealings, whether or not the underlying dealings are illegal. Is that is my intuition? Again, not my area of practice. So I'm that's that's truly not meant to be a softball question. I honestly don't know.

0:21:08 Randall: Yeah, I guess I don't know if you could generalize. I mean, to me, it actually feels like it's more common in politics that, you know, a politician is going to have more likely to have a reason to conceal something that just might be politically embarrassing or damaging, even if it's not criminal, just because it's going to hurt them in the next election. And so, you tend to see a lot of cover-ups in political corruption cases, like Scooter Libby is another example. If you remember that case, they were being investigated for leaking the CIA agent's name, Valerie Plame, and it turned out that wasn't a crime, at least not a provable crime by the person who actually did it. So no one got charged with that crime, but Libby gets charged with the coverup, with lying to the FBI and the grand jury about his role in it. A coverup crime of activity that was ultimately itself not not determined to be criminal. Not, not at all uncommon.

0:21:11 Andrew: Hmm. Hmm, hmm. Right. Right, right.

0:21:58 Andrew: Yeah, I think Trump pardoned Libby recently.

0:22:00 Randall: It did just recently. Yeah. Small

0:22:00 Andrew: Yeah.

0:22:03 Thomas: So my working definition of white collar crime was crime that people do with impunity and never get punished for. Is that am I wrong in that?

0:22:11 Randall: No, but it's, it's true that they are harder to prove, harder to detect and harder to prosecute. And let me, let me talk a minute about that if I can. The key distinction white collar and what you might call a street crime or a violent crime, is in a street crime like a robbery or a homicide or something like that, you generally know a crime has been committed, right? You come home and your house is broken into and all your electronics are gone. Or, you know, there's a body on the street with 12 bullet holes in the back. You know there's been a crime. And in a case like that the key issue is usually who did it? Can we figure out who did and then prove that beyond a reasonable doubt? And you can prove that by observable events, things that witnesses can see, eyewitnesses or physical evidence like fingerprints or surveillance cameras or DNA or whatever, but you've got objective evidence or things that can be observed that you can use to prove that case.

0:23:06 Randall: In white collar, it's frequently flipped. In White Collar cases, frequently we know who did it and we know what they did. For example, in a big Pentagon fraud case where it comes to the light that some company overbilled the Pentagon by $10 million. Okay. So we know we're going to have all those bills, all those invoices, all the emails back and forth, all the contracting documents, you're going to be able have this huge paper trail. You're going to know exactly who did what, who submitted the bills, how much, you how much they overbill the government. None of that's likely to be contested. The key issue in that case is going to be why, what was going on in their heads? The question of intent.

0:23:44 Thomas: Mens rea.

0:23:45 Randall: Yeah, exactly. Because the difference between a fraud, a crime, and just a mistake all has to do with what's going on in their heads. Because the company is going to say, well, yeah, we overbilled them, but it was just a mistake. It was an accounting screw up. We've got this new software. We're really sorry. Of course, we'll pay the money back, but there was no intent to defraud. And if the government wants to prove that's crime. You've got to prove what was going on. And that's what we're going to do. Yeah.

0:24:11 Andrew: One of the things that I've said on the show and I'm happy to, to have you pick a fight with me if you think I'm wrong about this, you see that that element of specific intent required on a lot of the political crimes. Right. Required when dating Way back to when we first discussed Clinton's emails in Episode 13, that that the specific offenses related to disclosure or failure to secure classified information all had that center, or were specific intent requirement to it. And that while that's a high threshold, and it's hard to prove what's going on in someone's head, not an entirely different area of criminal law. Right, that there are plenty of offenses that we think of as street crime kind of offenses, right, that nevertheless have a specific intent requirement to that it makes them harder to prove, but it's a difference, you know, it's It's still a commonality across both, you know, white and blue collar crime.

0:24:26 Randall: Yeah,

0:25:19 Andrew: Agree or disagree yeah okay yeah

0:25:20 Randall: For sure.

0:25:42 Randall: Dispute. If I walk up to you and stick a gun in your face and steal your wallet, my intent to rob you is not really at issue. Or the intent of the person who broke into my house and stole all of my electronics, their intent to commit a burglary is not the key issue in the case. It's going to be pretty obvious. But in white collar, intent is usually the key issue. And so again, because we can't read minds, that's what makes the cases so much more difficult to prove because you're dealing with conduct that otherwise could be lawful. Unlike an armed robbery or a burglary or a homicide, many white collar crimes involve actions that could otherwise be lawful, and the only thing that's going to make them criminal is my intent. I can take my laptop and throw it in the Potomac River. I've got the right to do that. Now, maybe I risk a littering citation, but other than that, that's not a crime.

0:26:30 Randall: If I do the exact same thing, but now I'm doing it because a grand jury has subpoenaed the files on my laptop. Now that's correction of justice. And the only difference in that crime is what's in my head.

0:26:43 Andrew: That's that's a that's an excellent point. And it is related to an area where I think you've written a lot, both for The Washington Post and on your Sidebars blog, specifically about the Bob McDonnell case before the Supreme Court and sort of the status of our current bribery laws. Right. And it's a different element. Right. The point you were making in the McDonnell case, I know, you know, rare display of bipartisanship from the Supreme Court had to do with the definition of an official act. But it seems like the same analysis applies, right, which is, yeah, we expect in politics that, socializing, entree, chumming around, like having, you know, the person that you introduce and, well, in pre-COVID days shake hands with at a cocktail party, that kind of behavior can be perfectly legal, right?

0:27:05 Randall: Yeah. Right. Right, yeah. Yeah, absolutely.

0:27:45 Andrew: Right. We expect that all the time. Yeah. And so

0:27:47 Randall: Yeah and that's all over the McDonnell opinion, you know, the court is worried about criminalizing routine constituent services, routine political interactions, you know, we that have a really high threshold for proving criminality that it would chill all all of these otherwise perfectly legitimate activities, chill, legal campaign contributions, you know, and so we need to set a really high bar. You know, even a better example than McDonnell for this point is Menendez. If you remember the Bob Menendez prosecution, you know he's basically Senator Menendez prosecuted on a bribery theory for this Dr. Melgen who was flying him all over in his private jet back and forth to the Republic and showering, you hundreds of thousands of dollars in campaign contributions and PAC contributions and things like that. They're charged with bribery. And again, kind of an example of what I was just talking about.

0:28:36 Randall: When that case goes to trial, there's no dispute about the facts, really. There's no disputed about all the plane trips, all the campaign contributions, all the money that changed hands, all of things that Menendez did for Melgen. The defense is no corrupt intent. The defense says, yeah, we did all these things and yeah, I took all those trips, but but we are, we've been friends for 20 plus years. We're lifelong friends. We've gone to each other's kids, you know, baptisms and weddings and birthday parties, our family's vacation together. And so all the stuff he gave me was out of friendship and, you Know, yeah, he's rich. So they're pretty nice gifts, but they were out of friendship, not because of some corrupt deal. And all the things that I did in Congress were in my capacity as a Senator pursuing public policy that also happened to be, you know, things of interest to him.

0:29:21 Randall: Jury hung 10-2 for acquittal. You know, so again, the facts are undisputed, but the question of corrupt intent is what drove that case.

0:29:28 Thomas: So, well,

0:29:29 Andrew: I think the lesson there is don't elect public servants who have rich friends. Right. I mean, no, I don't. I realize that's little bit of a laugh line, but like I I mean that seriously in the sense that it seems like. Right. And and I love us going to the to the Bob Menendez case. Right. Like that, that's that he's a Democrat as opposed to Bob McDonnell, who was a Republican. So, you know, corruption certainly is a bipartisan game and we don't need to take sides on that.

But I would sort of summarize your point on on Menendez as being that somebody could be, you know, kind of know, honestly believe in, you the con men and frauds that they've surrounded themselves with. And, and you're 100% correct, right, that like that the remedy for that is electoral, right? Right. Like if if we elect, you know, we're going to elect, you know, QAnon supporting lunatics to this coming Congress in 2020 and like they're going push QAnon's conspiracy theories, right? Like not because they're being bribed to do so but because God help us they legitimately believe that stuff and and guess I do agree with you that you the sort of a that's

0:29:58 Randall: Yep.

0:30:44 Andrew: This is not an area where the criminal law was meant to to help protect us. Right. Yep.

0:30:50 Randall: And that's another, you know—that gets back to a point we've discussed on the show before, and that's a common theme in White Collar. I think we talked about it with Bridgegate, for example. You now, when people are kind of outraged, you now, look at this crazy—look look at how bad this misconduct was. It was just horrible what they did. It was reprehensible. And the response in white collar is frequently, yeah, it was, but it's not criminal, right? Or at least it doesn't violate the federal criminal law. We're not saying it's okay. We not saying, no,

0:31:09 Andrew: Well

0:31:19 Thomas: Hold on. We've kind of switched. Are is this not criminal, or based on how you've set up this framing, is it just a matter of we cannot prove the, uh, contents of someone's brain? Okay.

0:31:32 Randall: In Bridgegate, it was that it wasn't criminal, that the conduct that the prosecutors charged as fraud didn't fit the legal definition of fraud. Now you you could amend the statutes. Congress could amend the statures to change that, but that didn't turn on their intent. That turned on what's fraud. But, yeah.

0:31:48 Thomas: I just wanted to clarify because we're kind of talking mostly about intent initially and I, I just, I, I didn't, and especially with Andrew saying like, well, the remedy is electoral, and I'm sitting here thinking, well, if we're talking about these, the bribery and these things that I think we all kind of know our crimes, but it's often just a question of like, well, we can't quite prove what's going on in their mind. You know, then to me, it's not so much that the solution is only political.

It's that maybe we need to think about the burden of proof a little differently. And I want to ask you the question, is this just something that is inevitably set up for unfairness?

Because if we look at one, you know, I don't know, class of crime, I'm not sure what to say, but one type type of crime where it's like, you know, as as you've already outlined, often the mens rea is not really at issue, or it's assumed, if you're, you know, robbing someone, it's kind of assumed you're robbing someones, there's no, uh, not not a lot of intent usually going on there, um, and then the other type of crimeware it's all about intent, and it just so happens that the people doing it, uh, tend to be people of privilege, tend to people that will societally receive the benefit of the doubt a lot, you know, so it

0:31:52 Randall: Yeah. Yeah. Yeah.

0:32:58 Thomas: Just seems inevitable that it's going to be like, well, oh look at that guy, he sure, there's, you know, I guess if you knew what was going on in his mind and you knew that it was evil intent, then sure, maybe it's a crime, but look at him, he's, you now, doesn't seem like such a bad guy to whereas, you other people who might be less fortunate would often not get that benefit of the doubt. Is unfairness just kind of inevitable in that?

0:33:20 Randall: There's no question that's a factor. I think the... But if you think about the nature of the crimes, you know, again, it has to do, I think, with the fact that we're often talking about conduct that could otherwise be legal, right? It's not sort of not inherently or obviously criminal. And so to some extent, there's a real trade-off. You want there to be kind of a high bar to prove some of these types of cases so that you're not routinely criminalizing conduct that, you know, is actually lawful. Um, and that's really a lot of white collar is all about. It's about trying to draw these lines, and courts wrestling with trying to draw the lines between what's fraud and what just may be super aggressive or, or sleazy, or, uh, you know, underhanded, or something less. Um, because we're talking about not kind of black and white crimes like assault and murder, you known robbery.

0:34:08 Randall: We're talking abut things like fraud and corruption and the bot, the parameters are fuzzier. Um, no,

0:34:13 Thomas: But But doesn't it feel like maybe in that balancing act, it's gone a little too much toward one direction? Or is that just the last four years of Trump that is making me say that? See,

0:34:23 Randall: No. I think I would agree with that, especially in the public corruption space. Uh, there's been a whole series of court decisions in the last 20 years that have narrowed public corruption laws so much that, you know, including McDonald, uh, that they've gotten really, really difficult to prove. And I, but there's a solution. Congress could come in and and amend the statutes. It's not, it's not an unsolvable problem. You know, the, the laws against bribery could be reformed.

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0:36:29 Andrew: We've talked about this multiple episodes of the show, um, but I, I mean, I think it is, uh, if history has taught us anything, right, and maybe it hasn't, uh, immediately post, post Nixon, we got a variety of acts of Congress that, while sort of watered down, were, were meant to, you know, if you want to be cynical, you lock the barn door after the horse had resigned in disgrace. And, and I think it's, it's a safe bet that there we go.

0:37:03 Thomas: Who says you're not funny, Andrew? That was hilarious.

0:37:06 Andrew: I think It's a Safe bet that if there

0:37:07 Thomas: The show that pairs a comedian and a comedian to talk about the law.

0:37:11 Andrew: Yeah.

0:37:12 Randall: Care what anyone else says, Andrew, we think you're funny.

0:37:13 Andrew: Thank you. Thank you. And you didn't even end up looking after it. Usually that's what people do. All right. So look, Biden wins in 2021. Let's say it's a blue wave. Right. Let's say the Democrats narrowly recapture the Senate. We have a unified Democratic government. I think very clearly at the head of that list are going to be all sorts of efforts to try and do the same thing, right, that the post-Watergate Congress did, right? Craft new laws meant to address the political corruption that we just saw. So two questions on that, right. The first is, do you have thought, right—like, you just said we could reform the bribery statute, right—so do you have thoughts on, of on some obvious kind easily obtainable, you know, broadly applicable and appealing reform cases?

0:37:14 Randall: Yeah.

0:38:11 Andrew: Do you have thoughts on what Democrats might be tempted to do, but would be a terrible idea? I mean, I got a whole bunch. So I said two questions. But why don't we start with those two? Like, what would be a good idea? What would be a bad idea?

0:38:20 Randall: Well, my, my reforming the bribery law is my favorite sort of pet project. I mean, just going in and reforming 18 USD 201, you know, to sort of undo do McDonnell, uh, clarify the definition of honest services that was scaled way back in Skilling and just give prosecutors back some of the tools that they used to have under those statutes to to go after a broader swath of political corruption where I think still criminal prosecution is appropriate, but the bar has just gotten so high that, you know, nobody but the most sort of clumsy, obtuse, dumb politician is ever going to end up and getting convicted, uh,

0:38:25 Andrew: Yeah, I might have set you up there. There.

0:38:59 Andrew: So what

0:39:00 Randall: Uh Well, like I said, you could you could amend the definition of official act to to make it, uh, broader than what the court said to McDonald's, so that something like what McDonald did, basically McDonnell exercised the power of his office to benefit his benefactor, right, the guy that was showering him with gifts that should be enough right it doesn't instead instead of this very sort of legalistic definition of official act, you rewrite the statute to say something like exercising official power or official discretion in exchange for the thing of value, you know, to broaden the scope of what could apply. Because the key, you know, I mean, the court talked a lot about, oh, we don't want to criminalize routine constituent activities and things like that. You know, this guy was not just some donor who had contributed to McDonald's campaign. You He flew them around the country on his private jet. He gave them $170,000 in secret gifts. These weren't legal campaign contributions. And so I'm not overly concerned about deterring that kind of activity.

0:39:00 Andrew: Would that look like?

0:39:16 Andrew: So, so does that suggest, maybe that, that the, that we should reconceptualize bribery as not kind of move outside the quid pro quo framework, right? Because I'm thinking about the, the counter example, right, which is, let's suppose it's, it's not going to happen. But but let's suppose, you know, I, uh, I render sufficient. I do, I do volunteer for the Biden campaign, but like, you Know, let's say he names me to his legal team and I become one of his head legal analysts and, and I work really, really hard to get Joe Biden elected. And then he pays me back in 2021 by appointing me to the federal bench, right? That it, it seems to me that that's what the Supreme court is trying to protect, right.

0:40:42 Andrew: And we could, we could have a public public policy discussion on, you know, should you be allowed to name your friends and people who help that? But but but but assume for the sake of argument that that that there is a good there, right, that we would want. I do this with the best of intentions. So we want, you know, hypothetical Andrew Torrez who volunteers for the Biden campaign and that gets paid back by, you Know, being named to the federal bench or attorney general or whatever, even Even though, right, right.

0:41:10 Randall: Well, as long as that's Andrew, I think we're fine with it.

0:41:14 Andrew: But that's a quid pro quo, right? I did a thing of service for the Biden campaign and he explicitly paid me back by doing a good thing for me. But not a corrupt quid quo.

0:41:24 Randall: That's right. That's just what I was going to say. The key in all those types of hypos is they leave out the element of corrupt intent. So there's political log rolling sometimes, people exchanging political favors like that. That's just the fact of life in politics. That is not considered corrupt. Corrupt.

0:41:35 Andrew: Yeah, right but I will point out that what struck you and what I think is intuitively intuitively persuasive to the audience, the evidence of the medical company exec, and I forget his name, the person who gave, you know, McDonald's wife the fur coat. And how could you forget John Williams? Not that John Williams. So Williams, right, in coming up with evidence of his corrupt intent, you immediately point to the Ferrari, the fur coat, the boat ride, the, you know, the the monetary gifts, um, but but seems like that's there is a a leap of logic. I, right, don't think any of the three of us on this call are wealthy enough that we give out Ferraris and fur coats as gifts to friends, but but I could imagine, right, like it's not it's not implausible to think that.

Yeah, well, I sometimes give what, what are for me lavish, like I bought my brother-in-law a sous vide machine for his birthday, right, like that that was a lavish gift coming from, you know, coming from me. If I were, you know, if I was a millionaire, it would not, right, it would. So I guess, yes, that's, it's a winding question of saying, if the, if the evidence,

0:42:03 Thomas: Dang, yeah, John Lee, huh? Not

0:42:05 Randall: Yeah.

0:43:03 Andrew: If the intuitive evidence to both a prosecutor and potentially to the jury of corrupt intent is the nature of the thing itself, then maybe intent isn't the word that we're looking for. Like maybe we're just saying there's some things you ought not to do to public officials, right? Like you shouldn't give them money. You shouldn't gives them fur coats.

0:43:26 Randall: I mean, I think it's not just the word intent, it's the word corrupt, right? I mean so there can be plenty of gifts that are not corrupt. If you've got the long-term relationship, which is what sort of Menendez and Dr. Milligan argued, and when it comes to politicians, there are a lot of mechanisms in place, you know, disclosure requirements, requirements, ethics and government act forms, things like that, that are supposed to sort of shed sunlight on these gifts.

0:43:52 Randall: And, you know, there are limits to legal campaign contributions and things like That. So there are a lot of rules in place, where you can distinguish, you know, what might be legitimate gifts from corrupt ones. And like I said, the thing with Williams and McDonald was it was all done in secret. An issue in the Menendez case case was, you know, he's supposed to report these plane trips on his ethics and government act forms and he didn't.

0:43:31 Andrew: Mm hmm. Yeah. Yeah,

0:44:16 Randall: And so that was part of the government's evidence of corrupt intent. You know, it didn't, it Didn't persuade the jury. He argued that it was an oversight or some attorney told him he didn'T have to, you Know, he had a defense, but that was Part of the evidence of corrupt intent was that there are mechanisms in place to, You disclose these gifts. And if you follow those, then you're presumptively not being corrupt. Right.

0:44:35 Andrew: So do you think strengthening the mechanisms could could work right like adding, you know, for avoidance of doubt, failure to disclose is presumptive, you know, is creates a rebuttable presumption that, you know, you've engaged in corrupt intent, something like that.

0:44:44 Randall: Yeah.

0:44:53 Randall: Yeah, I don'T know if you could do a reputable presumption in criminal law, but maybe

0:44:56 Andrew: Well, that's a civil lawyer and me thinking it sorry.

0:44:59 Randall: Yeah, I mean, I think, you know, I'm sure there's room to strengthen some of these disclosure requirements as part of your basket of reforms, you know, reforming the Bradbury laws. I think there should be a move to try to put some kind of, if not laws, you know regulations or something in place to prevent the politicization by the Department of Justice. You know, been so many norms that were kind of unwritten norms but had been followed and understood since Watergate about justice, you now, resisting political interference in prosecutions. And of course, it was never perfect, but it worked pretty well. And that's just been completely shattered by the Trump administration and Barr. And so now people are starting to think, okay, we can't rely on norms and people's good faith anymore.

0:45:47 Randall: We better put something in place that has some teeth, has some kind of sanctions if people do this again. So hopefully there'll be some efforts in that regard as well.

0:45:55 Andrew: Agree more with you on that. From somebody who's been in on the inside, right, that we see externally, right? We just talked about on last Friday's episode, we talked about, you know, Barr's directive to tell AUSAs that they should be, you know, prosecuting protesters for sedition, right? And, you know how preposterous that is. And I said, that line prosecutors have, you know, not just the requirements of the job, but also various canons of legal ethics that are going to prevent them from just, you know, filing nonsense claims. But, you know, what internally, I mean, how How much pressure, how much autonomy is there? I mean, am I expecting too much of a prosecutor when, you know, when your boss says do X? I mean all of us are certainly familiar with, you now, the boss wants it this way. Yeah,

0:46:20 Randall: Yeah.

0:46:59 Randall: No, you're not expecting too much. That's the way it has to be. And that's the way it historically has been, at least during my time in DOJ. And I think when you see the thousands of people who signed, former prosecutors who signed the letters protesting Barr's actions, I mean, you can see how widespread that sentiment is. It's not just me, that that's the job is to do the right thing. Your job is to try to make sure that justice is done, not just to win or just get an indictment or pursue political opponents or do something you know is improper just because your supervisor tells you. And that's the norm that's just really been stretched and tested by Barr. And we've seen, you know, I mean, honorable prosecutors in the Stone case and the Flynn case, you knows, they withdrew, they resigned rather than follow those kinds of orders. And that is the job and that's The Honorable thing to do.

0:47:44 Andrew: Yeah. But the problem with that is, right, that in the long run that leaves only the toadies and lackeys behind, right? Right. If if the remedy is resign, you know, yeah, that's that's what we're left with.

0:47:59 Randall: Yeah. Yeah. But there are your personal ethical and moral requirements, and then there's the big picture problem, right? So like you were saying, for the individual prosecutor, there does come a point when you have to choose what's right over sort of keeping your job. If you're going to adhere to the sort of professional norms that we expect, then the bigger problem is, how do you get rid of the bigger problems? You vote them out, right. You've got to vote them and get an attorney general in place who believes in these norms

0:48:15 Andrew: Yeah.

0:48:29 Andrew: Yeah. Although we've seen voting is an imprecise remedy in the best of times. You Know, particularly when you're talking about voting out in, in an electoral college system, a president who appointed an attorney general who's head of an executive branch. Right. Like that's that's a pretty deep. I mean, it seems to me that there's a strong argument. And look, I make the argument on the show all the time in the A segment on this very episode. I make the argument that there are some things that are just not criminal, just not judicial remedies, right? The remedy is political. It if the thought process is that the political remedy for a corrupt attorney general seems pretty attenuated, then then is there is there hope for creating some levels of of independence at at DOJ? Right. Like, obviously, the CFPB decision from from this last term at the Supreme Court is going to be a barrier. And the past, you know, five law, the past five years worth of Supreme Court decisions on, you know, independent executive agencies, I think, create a tough minefield.

0:48:47 Randall: I

0:49:40 Andrew: But, you know, is there a way to to say, you know, hey, no president campaigns on. All right. I mean, not even Donald Trump said, I'm going to get into office and my attorney general is going to be a toady who prevents anybody from prosecuting any wrongdoing that anybody in my administration does. So it seems like it's hard to hold somebody politically accountable. Is there something you can do to help insulate the DOJ now that, you know, those norms are shattered, right? Like Thomas's favorite, you know, they, that there was a campaign ad cut about the 30 seconds that, uh, Bill Clinton spent on the tarmac with Loretta Lynch, um, yeah right yeah that those that so so what can we do to to to restore some semblance of independence in case of bill barr 2.0 that you Know again my biggest I was wrong I've been wrong about a lot of stuff on the show, but my saying, I didn't think Bill Barr, you know, was going to be a disaster is probably, you know, my biggest mea culpa.

0:50:16 Thomas: Yeah.

0:50:17 Randall: The, the days, huh? Wasn't that scandal that was I'm right there with you I wrote a whole blog post about it you know, when he was first appointed, I said, "Oh, man, the people that think he's just going to be a Trump lackey, they're going tobe disappointed, he's a serious guy." I said, man, when I blow it I really blow it right there well

0:50:43 Andrew: Yeah.

0:50:52 Thomas: Yikes. Definitely don't put that one in your ad for your great course. I'm just saying, maybe skip that one.

0:50:58 Randall: I wrote subsequent post about how wrong I was so I kind of made up

0:51:04 Thomas: I'm not going I'm, I'm going I'm teasing. We like accountability and honesty. It's good.

0:51:04 Randall: Yeah um Yeah, you know, now it's really hard because, of course, the Attorney General is part of the president's administration, right? So this all kind of flows from the top, the culture is set at the top. And so, I mean, there are obviously other political remedies like impeachment that are available in really extreme cases, but we've seen how well that really works. I don't know, short of really pushing to put someone in office for whom these norms really mean something that are really important and that will work to restore the integrity of DOJ that I think has been so severely damaged over the last few years. That's going to be a big job. Take some time to crawl back out of this, hole that been dug in the last two years.

0:51:46 Andrew: Yeah, I I, worry about that. Well, can't I emphasize highly enough, right? Right. Part of part of the theme of this show, part of why we love having you on, to begin to understand, to to propose societal remedies. Right. And and new policies, new laws, new new norms. Right. It helps to understand what the existing laws are. And so I I'm going to go listen, listen to the course. And uh I would encourage everybody else to do to do likewise um is should people find it

0:52:18 Thomas: Absolutely

0:52:18 Randall: Thanks. So you can go to thegreatcourses.com and look for White Collar Criminal Law Explained. Like I said, you can stream it. You can buy the DVDs if you want. And the thing I wanted to emphasize is it's not just for lawyers by any means. I mean, And the course is geared towards non-lawyers like your podcast, right? I mean, the part of my goal is to explain these things to non-laws and try to make them more understandable. So when we see things in the news, people can have a better understanding of what's going on. So I appreciate the opportunity to come on. I'm pretty excited about it.

0:52:51 Thomas: We're so happy to hear about it, glad to have you on. Everybody go check out that great course. Uh, thanks again, Randall, for coming on the show, as always. That was a lot of fun.

0:52:59 Randall: My pleasure. Thank you.

0:53:00 Clip: And thank you, Let's go!

0:53:02 Thomas: Now it's time to thank our top patrons, our Hall of Famers, our all-time greats on patreon.com/law. I'm sure they're enjoying already all the great stuff tell oh, we, and the early episode that you're hearing right now, I always do Sundays, I call it Sunday's episode, because for me I release it Sunday night, everybody. Everybody else gets it, you know, we'll exaggerate it, but they get it on Tuesday, even though it's Tuesday at midnight, but still it's

0:53:24 Andrew: Yeah. Yeah. But, you know, normal people go to bed.

0:53:28 Thomas: Marketing. Yeah, yeah, exactly. So you get it way early. But anyway, why don't you start us off, Andrew?

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0:54:34 Thomas: Oh, yeah. I feel, Look, I'd like to think that were it not for COVID, you and I would have been invited to all these big milestones. I think, you know, the wedding, the the open house, you know, like.

0:54:48 Andrew: Yeah. Maybe they'll Do a Zoom call open house and we can send them a video picture of a plant. So it'll be fun. William Drew Collins, Bob Newhouse, Sassy Italy Tours is not going to give Steve Bannon a refund on that grappa tour, he's not going going to be able to make now. Uh, by the way, I'm interested in a grappa tour, that sounds amazing. Greg Kreimer, the McGann, the McCann McGoffin Egg McMuffin, followed hilariously by the great Transformers reference. First we crack the shell, then we crack the nuts inside. Register, register every every person, you know, to vote.

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0:54:51 Thomas: Yeah.

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0:57:08 Thomas: Still one of my favorites, all Right.

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0:59:47 Thomas: I love that song, actually, like that's one of the few, like, pop songs from recent, no, it's not very recent, but I do love that sound, it's a great great perfect pop song, the video is amazing, good stuff, do more of that Beyonce,

0:59:48 Andrew: I I I'm with you, that, that's a good pop song, it's that there's yeah, yeah, I mean it's it's like it's good there, you go, we're all, we're pro-Beyonce, sorry, we're pro-Beonce on this, we're probably on, say, on this podcast, oh

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1:01:24 Thomas: What? Maybe the real emoluments violations are the bribes we received along the way.

1:01:19 Andrew: That's

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1:02:36 Andrew: The pile of trash transformer.

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1:02:39 Andrew: Former.

1:03:03 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:03:09 Thomas: Okay, uh, time for T3BE answer time, let's find out if I have to work on some new music or something. Well,

1:03:17 Andrew: Thomas, this was uh a a great bar Bar exam question. The the dirty, rotten scoundrels, a man and a woman, both independent purse snatchers, entered into a grocery store and intended to commit crimes, and in fact did commit crimes. The man approached a victim, grabbed her purse, knocked her down, stole the purse and ran out. And then the far more crafty woman just stole a different purse from a shopping cart that was unattended and ran up. But both were caught. And the question was, which of the two purse snatchers could properly be convicted of robbery? The man, the woman, both, or neither. Either. And you immediately, I mean, with no hesitation, went to be, only the man.

1:04:04 Andrew: You actually struggled to come up with a scenario in which there could be a Thomas's second chance bargaining. Ultimately, you were like, maybe also a.

1:04:14 Thomas: It could be, yeah, some weird Rule of like, if there's already a ruckus happening and you commit a crime, then then you're, that's part of the, I don't know. Yeah. I don'T know.

1:04:15 Andrew: Yeah. Yeah, But But Basically, you were, were, like, it's B. Because You, only the man used force. Usually, I give you, uh, my analysis of this, and it is, and I don't love, um, because they're, they're designed for test taking purposes, so I don's often read from the Simulated exams answer guide, because it's often not helpful for the kinds of public discussion we're having on Opening Arguments. Here, I want to read in its, its entirety from the practice answer, and by the way, they're usually like several paragraphs

1:04:25 Thomas: It's pretty much B.

1:04:39 Thomas: Yeah.

1:04:56 Thomas: Each,

1:04:56 Andrew: In length, right?

1:04:56 Thomas: Each, each option will have like a couple sentences.

1:04:56 Andrew: Yeah. Yeah. It Says, "Solution: the correct answer is B. Answer option B is correct. Only the man can be convicted of robbery because only he used force to steal the purse. Answer options A, C, and D are incorrect for the same reason." So there you go, case Closed, As

1:05:17 Thomas: As straightforward as it gets, case closed, three in a row.

1:05:20 Andrew: As That's A hat trick. No,

1:05:26 Clip: You are correct the best kind of correct he's not even a lawyer he's kicking your ass

1:05:37 Thomas: Wow. I'm, I'm I'm so pleased. I'M glad I didn't, you know, there is a risk of trying to overthink these things. And I want, yeah, sure.

1:05:44 Andrew: No credit for me for using the hockey language? There, okay, fine, that's Fine, the

1:05:49 Thomas: Real triple play. I was trying to do one back at you with baseball, but it why don'T you hop in your time machine now and uh tell us who is this week's big winner Whoa, no one adjusts that dial! It's actually me and the time machine again, and I'm so happy because we've got a great winner, at Metal underscore World underscore RPG on Twitter has a great answer, Thomas was correct in T3BE about the common law distinction between robbery and larceny. It follows what I hereby name the Olivia Newton-John rule, if a theft declares intent to get physical or actually does so, it becomes robbery. Wow, well-done, that is everything we wanted in a t3be answer. It was good, it was right, it's funny, and it's an Olivia Newton-John rule, so throw Metal World a follow on Twitter, you know what to do, give them the infinite fame and fortune, definitely guaranteed, at Metal underscore World underscore RPG.

1:05:54 Andrew: Best

1:06:42 Thomas: RPG And that's it for our show. Thanks for listening. We will see you on Friday for a rapid response. And thanks to, of course, Randall Eliason for coming on the show. That was a ton of fun. We'll see you next time.

1:06:54 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:07:28 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.