OA621: The FBI Goes to Mar-a-Lago! This Is Big...

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 621. I'm Thomas. That's Andrew Torres, Esquire. And how are you doing, buddy?

0:01:26 Andrew: I'm a little sleepy, Thomas, there's, there have been one or two items in the news, in case I, you know, in case you've been living in a cave for this past week.

0:01:36 Thomas: I have, but my cave has Wi-Fi. So I'm, yeah. One of the, yeah, it's new, everything, you know, technology.

0:01:37 Andrew: Oh. Okay, all right, yeah, it's one of those, uh, yeah, it, it's like the cave in Iron Man, right? Like you got a Good, well, then, uh, you know what's happened, but, um, I

0:01:44 Thomas: But I got to hear you say it, Andrew. How are you doin'?

0:01:50 Andrew: Am fantastic, Thomas.

0:01:52 Thomas: I am fantastic as well. What a news day. Now, a lot has happened. Happened, Mar-a-Lago was rated. Now, as much as I'm fantastic, and I promise I am, and I'm not trying to be a Debbie Downer, or whatever the current phrase is, I am a bit more pessimistic than I think you are about this doing anything. However, we have so much to cover, and I am wondering if you are going to change my mind by the end of the show that I should actually venture to be optimistic. So I am really excited.

0:01:52 Andrew: Thomas, how are you?

0:02:04 Andrew: Yeah.

0:02:22 Andrew: I hope I will. I, before we get into that, we received a fair amount of feedback from our interview slash debate with Matthew Hoh, you and I are going to decompress about that on Tuesday's show. Almost all, I mean, I would say 99% of what we got, uh, was favorable. I, I want to sort of explain how that happened, how we got there, some of the issues. No, OA is not going to turn into, we're going to debate your mom who's running for, you know, county council in Osceola, Florida, under the, you know, Silver Fox ticket. It, that, that's, that's not going gonna happen, okay? Uh, um, but, but I think, I think there were really good reasons for what we did. I stand by that episode. And we'll, and decompress, talk a little bit about some listener feedback on Tuesday.

0:03:08 Thomas: But I want to make sure people don't think that's all we're doing Tuesday, because that'll be a short segment Tuesday. But the main story on Tuesday, because what a week of news. This is incredible. So much. I believe Andrew became an expert in punitive damages in Texas and maybe Connecticut, that I'm sure avid listeners could guess.

0:03:11 Andrew: Oh, no. Yeah. Definitely Connecticut. Yeah. Yeah.

0:03:32 Thomas: So that's our main set as a little teaser. Don't worry. It's not all just us talking about our previous episode, but we are going to do a little bit of discussion on that because it was interesting to see what people thought.

0:03:37 Andrew: No. Yeah. Yeah. That was going to be the main segment this week. Like here we were going to get you ahead of the curve hopefully we'll still be ahead of the curve but it would have been a little weird to go to press and not talk about you know the search warrant executed at the president's resident the former president's residence at mar-a-lago florida so uh ready to dive into that all right

0:03:45 Thomas: Yeah, yeah, yeah. I think we'd better get to that. I've been really curious for your breakdown. I've seriously counting down the the hours until we're recording here, Andrew, because I want to know what this means. I got to I got not the devil and the angels on my shoulder, but I've got the I've Got the Optimist Prime and the Negatron on my shoulder.

0:04:18 Thomas: And on one hand, the Optimus Prime is like, hey, it's raid on Trump's property. That's and the the burden of proof and especially given how hesitant DOJ has been, how hesitant they are to like go after a a presidential candidate, ex-president for anything, that means the burden must have been so high. The T's must have Been crossed. The I's and lowercase J's must've been dotted. So there must be something big here. And then the little negotron on my shoulders, but yeah, this is like a presidential records act, man. It'll be like, oh, we just, he wouldn't give us back some faxes that he had and he just wasn't giving us them back. So we raided the thing to get them. And, but he's the president. So he could have just declared them not secret anyway. So there's no punishment. Like that's, those are the

0:04:07 Andrew: Okay all right all right

0:05:05 Thomas: Two things on my shoulders. Now, what I want to ask you is, A, who wins? Which little, which little thing on my shoulder wins? You.

0:05:11 Andrew: Right so I don't think that's a terrible framing I think it's it's misleading and we're going to talk about that but I but I would tell you the optimist you prime contingent ought to be uh solidly in the lead in this fight right now uh that's uh that'S TAKING PLACE ON THE CYBERTRON ON YOUR SHOULDERS SO LET'S LET'S UNPACK ALL THIS I WANT TO START WITH SOMETHING THIS IS is not your fault. All of this, and in fact, a certain person who handles our social media may have included tweets that included the word raid. I'd like to push back on the word raid by the FBI at Mar-a-Lago. That's not what happened here. What happened here was the execution of a legitimately issued search warrant. The reason I want to push back on raid is, is two reasons, right? The first is raid has that kind of ring of, uh, there's... something unauthorized, there's something exigent about it. And I have seen some unreliable sources, right, Occupied Democrats-level sources, describe this as a no-knock warrant that was executed. At that is absolutely 100% not the case.

0:05:12 Thomas: Oh, okay.

0:05:47 Thomas: Raid. Okay.

0:06:21 Thomas: Yeah. 'Cause Donald Trump's white first and foremost. So, so

0:06:22 Andrew: Right. No, no, and and it's really, really important that, right, when you think no knock warrant, I want you to think Breonna Taylor. That, right, is all of a sudden you look up because there's a loud noise and there are cops at the foot of your bed, right? That's a no... No knock warrant. Showing up and giving your incompetent XO and bobblehead talking head lawyer a copy of a search warrant is a privilege that is reserved for, you largely white people.

0:06:53 Thomas: Not no knock, it's but interesting about raid though. Though, because I feel like that's a little bit more debatable. Not that we should waste time on it, but like when Michael Cohen's office was raided or one of the other, you know, Trump people during the Trump years, I feel Like we call that a raid, even though it's just an execution of a warrant, right?

0:07:08 Andrew: And Part of that has to do with the advanced knowledge, which, again, it is very, very clear that Donald Trump, through his subordinates, cooperated, quote-unquote, with a similar inquiry in February of 2022. Talk to that.

0:07:25 Thomas: Interesting.

0:07:26 Andrew: So, in other words, this is not... part Part of the reason why I'm okay with the raid language in terms of Michael Cohen is because it was executed multiple locations simultaneously, and it was designed to be executed before michaelcohen could start deleting files, right? And, again, with a lack of communication beforehand, and I think it's that lack of communication that, in my mind, determines where we should sit in terms of the words that we use. So let's, let's take a step all the way back. Let's do this on the basics. The reason we have a search warrant here is the Fourth Amendment to the Constitution. And I want to read the whole Fourth Amendment because there's a rabbit trail.

0:08:12 Andrew: I'm not going to go down comparing this to the Second Amendment. But I want you to think about, as we've built our overall case sort of against originalism and the hyper-textualist reading of the Constitution, let's read the Fourth Amendment for a second, shall we? The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated. Okay, that's the first. Clause.

0:08:42 Thomas: Makes sense.

0:08:42 Andrew: Comma, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. Now, when you read that, you have a structure, it's almost the inverse grammatical structure of the Second Amendment. The right first says you will be secure in your person's houses, papers, and effects against unreasonable searches and seizures, and then the second half describes what transforms an unreasonable search into.

0:09:12 Thomas: Right.

0:09:13 Andrew: A reasonable one. If, right, you were to just cut off that first part, right, you would be left with a very misleading understanding of what the Fourth Amendment means. So I'm just going to leave that one hanging out. That's obviously way too long for us to go. But I want you to be. This was an opportunity, as as we talk about what I have defended as the ordinary model of jurisprudence, and the way in which our founding fathers wrote in broad sweeping principles, and then, you know, clarified them a little bit, but intentionally left this as sort of vague to fill it, right, what counts is reasonable, right, what, what, what makes cause probable, and how, right, like all of that are, I think, the kinds of questions that are issued by, by looking at constitutional texts. So what does a search warrant have to do? Okay, number one, you can only get it upon a showing of probable cause, right?

0:10:05 Andrew: What's probable cause? Probable cause is less than certainty, right, less than 50.1%, but more than just articulable suspicion, more than just, which is another legal term, right. That's, that's what the police need to pull you over. Are a couple of other sort of standards when we're talking about the interaction between you and the police on the streets, like to, to pull you over and ask you a couple of questions requires articulable suspicion, and then if you escalate to something, right, if in the course of them pulling you over you run, well, now you have escalated to probable cause, right? And generally speaking, when you, when you put numbers on things, as, as we're sort of want to do, if, uh, more probable than not, right? Right. If preponderance of the evidence is 50.1, if clear and convincing is a 75, I have probable cause is a 30, a 25. That's how I was taught to think about it. Right.

0:10:58 Thomas: Huh. Interesting.

0:10:59 Andrew: So, you know, not a not a 10, not one. But, you you could say, well, I don't know that I think a crime was committed, But I think there was probable cause to believe that if I issue this search warrant, it would lead to the discovery of evidence that would help us understand and evaluate a particular crime. It would be evidence of a crime. Right. So that's the first part. Probable cause that goes to a magistrate judge. The second is supported by oath or affirmation. And again, Right. You will see that that is there is an affidavit attached to every search warrant application by a law enforcement official that says, here's what I saw.

0:11:45 Andrew: And I personally affirm, under penalties of perjury, that this is what I saw. And

0:11:51 Thomas: Signed Donald Trump's toilet. Toilet. I've seen a lot. I'm seeing a lot in my day.

0:11:53 Andrew: Right. Fair, but That's the second component, and right, then the last part, particularly describing the place to be searched and the person or things to be seized, and we could talk a lot about that particularity requirement as it applies to both the locus of the search warrant and the items to be seized. Uh I will tell you the overwhelming trend since the nation's inception, certainly in the 20 the 20th and 21st centuries, has been towards crafting exceptions to those rules, right? One obvious example is the plain sight rule, right? So I say I want to search your residence for evidence that was used in the commission of this financial crime, including but not limited to books, records, computers, blah, blah, blah, and I do that, and next to your computer is a knife dripping with blood. Blood. Well, guess what, we're, the police are also going to seize the knife dripping with blood. Oh,

0:13:01 Thomas: Really? Even if I'm like, yeah, no, I was just picking out a splinter. Went a little haywire.

0:13:02 Andrew: Yeah. Yeah. You're free to make that argument, but now let's suppose that it is, right, and that they, they do that, and then they discover, they take, they take the knife, they, they match up the, the DNA, they connect it to a murder, and now, in in addition to investigating Thomas Smith for the economic crime that was described in the search warrant, now they're investigating you for an entirely different crime, murder, that they didn't know anything at all about.

0:13:30 Thomas: Okay. So I should put my bloody knife in a drawer in general. Okay, gotcha.

0:13:32 Andrew: Yeah, that would be, don't take legal advice from a podcast, but no, This actually has developed through case law, and it's called the plain sight rule. And basically, think about how this would play out, what you would do. The police, you say, hey, this search warrant doesn't give you the right to take bloody knives, but cops go, yeah, all right, feel free to litigate that one, counselor. And they, they put it in an evidence bag, they take it, you hire the best lawyer you can, your lawyer moves to suppress the bloody knife as evidence and offers as an argument, hey, the search warrant said instrumentalities of a financial crime, and last I knew, uh, stabbing somebody was not a financial cry, right? This, the Supreme Court has said, well, that's true, but anything that's out in the open, anything that's in plain sight, is not something to which you, you are manifesting unintentive privacy.

0:13:36 Thomas: Oh, I am. No, I'm definitely.

0:14:29 Andrew: So therefore, the police can, if they see it in good faith, they don't have to pretend like they didn't see a bloody knife next to your computer. They're allowed to take that and then connect it up and, you then use that so long as they obtained it in good faith and so long as it was in plain sight in the execution of the warrant. Now, as you might imagine, there have been 30 to 40 plus years of cases, probably more by now, that are like, well, you you know, I, I saw blood dripping out from between these two blankets. So, you know how play it was, what was it? Plain sight. Once I lifted this blanket, right. And we could go through all of that.

0:14:51 Thomas: Yeah. Yeah, yeah. And a court that is really a big fan of locking more people away and protecting police's ability to just do whatever they want, right? I mean, definitely these rights have been eroded over time.

0:15:12 Andrew: Yeah, absolutely. Absolutely. So with that in mind, as the constitutional requirement, what Trump's lawyer, and when I said she is an OAN talking head, that that's um, that's legitimately entirely all she is. This is a lawyer named Christina Bob. She does not even show up at unamericanbar.com. So she's not even a Kraken lawyer, right? Like has, has, as far as I could, yeah,

0:15:40 Thomas: Not even a Kraken lawyer is, that's, well, that's devastating. Greater I insult to a lawyer, I'm not sure has been uttered than not even a kraken lawyer.

0:15:50 Andrew: That's, that's who's left, right. So, so Christina Bob was there, and she was handed a copy of, and I'm going to put a link to a sample search warrant in the show notes. This is for the U.S. District Court for the District of Alaska, but it's a model form, so, right, it looks the same everywhere. You have the caption, it says "Search and Seizure Warrant," and here's what it would tell you. This is an application by a federal law enforcement officer. The government requests the search of the following persons or property located in the district in which you get the warrant, and then this one says "C. Attachment A incorporated herein by reference," and you might think, why would you have to do that, right? And the answer is, remember that constitutional requirement of, you have to list with specificity the, the places to be searched, and

0:15:52 Thomas: I

0:16:44 Andrew: Think about that there, right? Are, are cases that involve, right, searching the house, but what about a detached garage, right? Is that part of the house, is it not part of the house?

0:16:53 Thomas: Didn't want to bog you down, but I was going to ask in the bloody knife scenario, like, okay, you can search for financial stuff. If I put my bloody knife in a bathroom drawer, do you think it would have been reasonable for the police to be like, Like, well, maybe you put a financial piece of paper in the bathroom. Let's go search these drawers.

0:16:53 Andrew: Right. Yeah. And There the question would be, what was authorized by the search warrant, right, in terms of the premises to be searched? And then what came up as a result of that diligent search? So you might say, for example, if you go to the court and say, yeah, we've been monitoring, the reason we want a search warrant now is because this court has previously issued a phone tap, right, a search warranty to record the audio communications of this guy. And here's the last like five conversations, suggest that he knows, right, that something is up, right, that he's suspicious. So we think he may be moving to destroy evidence. So what we want to do is search the entire premises, top to bottom, for any evidence that he might be hiding or that we suspect may be spoliated or destroyed.

0:18:03 Andrew: Right. And Right? So in that case, it would indeed be reasonable to come in and search your yeah, Search your bathroom, right? Search your hidden safe, everywhere. But you're absolutely correct. And this issue gets litigated in white collar crimes all the time, that if there's no notice and it says what we want to do is search for evidence of the crime, and the police come in, and of a financial crime, and it specifies, including, you know, the computer, the online accounts, the, um, you know, personal phone or any personal data assistance, that used to be more of a big thing back, back, occasionally when I helped on some criminal cases as an associate in the early uh 2000s, you know, PDAs would get listed in there, now nobody knows what a PDA is anymore. But, but, but, but yeah, if it's, if the warrant is describing an economic crime conducted online, you would have a good argument of.

0:18:08 Thomas: Search my spoliation room.

0:18:58 Andrew: And then they went in and took a crowbar to the vanity in the bathroom and cracked it open. And, unrelated you evidence of an unrelated crime fell out. That would be a pretty good argument to suppress. Right. Like, no, you're not hiding the online data in the sink. Right? So good point with respect to that.

0:19:13 Thomas: Yeah. No one ever says this, Andrew, but I think this is too much foreplay. We got to get to the actual trumping. Trump, trump.

0:19:24 Andrew: Sorry. OK, Christina Bob gets a description of where we're searching, Mar-a-Lago. Right. Then the next thing she gets is, what are we looking for? And again, this will likely be listed on a separate affidavit. But it right, would say something like, we are looking for the evidence of a crime. Right. The basis for the search under federal rules of criminal procedure 41C is evidence of a crime, and then it would say the search is related to a violation of, and it would specify the crime or crimes that that you are believed to have committed or to have to be harboring evidence about. So right, for example, as an attorney could go to a federal magistrate judge and get a search warrant, Thomas, for your house for criminal evidence related to criminal conduct by somebody else else it, yeah, uh, so in other words, it doesn't have to be your crime.

Now you're searching Mar-a-Lago, it is unlikely that the, press the former president has evidence related to somebody else's crimes that are not also his crimes, but I, but do want to point that out. So the next thing you will get is an identification of that crime with specificity. And here I want to pull that pin out that you talked about from the beginning. We're going to talk about the way that Trump world has been characterizing this investigation, right? As well, it's a violation of the Presidential Records Act, and you know, if they had just asked for and, we would have given it to them, and you know, it's the greatest intrusion on a blah, blah,

0:20:15 Thomas: Shit. Han, throw away the evidence. Oh, mute. Hold on. Sorry. Well,

0:20:57 Andrew: Blah in American history, but

0:20:58 Thomas: And and and also most the daily, the Washington Post, like that's I got that not from Trump world, just specifying. Just I got dat from actual mainstream coverage like this is likely just related to the

0:21:07 Andrew: But but actual mainstream coverage, got that from Trump world when you, when you dig back, because here's what happens, sealed at the moment. I can't get it. Believe me, I have tried. However, a copy of it was handed to Christina Bob. That's the definition of serving the search warrant. Right so she has a copy of the search warrant and she has a copy of the receipt of everything that the FBI took and so Christina Bob then went on Dinesh D'Souza's podcast and a bunch of other crazy-ass right-wing sources and said hey this is what they said they were looking for okay and I point this out because if the search weren't if all the search search warrant said were violation of X code involving record keeping under the Presidential Records Act. They

0:21:11 Thomas: Really right. Yeah, has to be. Yeah.

0:22:06 Thomas: You think

0:22:07 Andrew: 100 percent could show could show us the search warrant. OK, now that there may be other reasons not to. OK. I am not suggesting that it definitely says other things. What I am suggesting is that all of the information has been controlled from Trump Trump world at this point. And Trump has been, you know, as we've seen in the past, when there are documents that he perceives helps him, he has immediately moved to try and put those documents out to the public, even when that judgment is suspect. So, for example, right. Trump released that the one three call with Brad Raffensperger. Why? Because he foolishly thought it.

0:22:07 Thomas: They would have showed us to us? Yeah, he that was from Trump.

0:22:48 Andrew: Oh, yeah. Right. Same thing. The call with Zelensky, you might recall, in connection with the impeachment. President Trump declassified that call immediately because he erroneously thought that it helped him.

0:22:50 Thomas: Oh, my God. God.

0:23:02 Thomas: Well, and also he I again, Trump is very smart in certain evil ways. And I think she has caught on to the fact that I've said it before, that if you present something out in the open, the American public is like, oh, it's out in the open. So it can't be a crime. It wasn't secret.

0:23:16 Andrew: So it can't be a

0:23:17 Thomas: Yeah, I think honestly, it is probably because of that. He knows it is nothing to see here. And then everyone's like, Oh, well, it wasn't Squidward and Birdstein or whoever the heck. It was not them getting a secret thing. So it must not be a crime. That's how dumb we are as a public, I think.

0:23:17 Andrew: Crime. That's right. I I think there's much to commend in that analysis. And so I would point out Trump world has released excuses and rallied their most sycophantic base right now, but has released no documents. Right, and you might want to ask why that is. Okay, um, so that's what's in that warrant that they could give us: we're going to search X property, we're looking for Y information which will reveal evidence of Z, A, B, C crimes, and that's supported by the accompanying affidavit. Um, they don't have to release the affidavat, right? They could just release the warrant. They could juste release the list of uh documents that were seized, right? We know that from, for example, uh, when uh John Eastman's phone was seized pursuant to a search warrant, he then went to court to compel to get it back and lost, and attached to that the receipt, right? This is what they gave me.

0:24:21 Thomas: Is somebody doing that like live on the scene? Like, okay, we got this, we've this. We've got those quick. Cause it's like, I thought, I mean in the movies, they just are, you know, putting crap into boxes just as fast as can be. Is it, I assume it takes a while for someone to go through all that and then like list out, itemize what they have.

0:24:38 Andrew: That's a really great question. In terms of when you get that receipt, I, I don't, having not defended somebody who was the subject of a search warrants, I don't know, but you do get one.

0:24:46 Thomas: Hmm. Well, and another part of the question is like, I don't know how detailed that receipt is, you know, is it just like documents, a billion of them? Or is it like this related to this and this looks like this and you know?

0:24:51 Andrew: Yeah. And And Again, here I, I can go by what I have seen in litigation matters, right? Like, for example, the Eastman receipt is sort of in between the two of those, right, is like it would say one phone, 12 boxes of documents, 13 folders, including one labeled X, right. So there is there is some level of specificity, but but a level that is consistent with like you might get from, you Know, U-Haul, right like, Yeah, we loaded 12 boxes of stuff onto the truck, one was marked confidential. Yeah.

0:25:17 Thomas: Okay. Yeah. Well, and And the only reason I bring it up is, you, so that sounds like it's the kind of thing Trump world could have released and it wouldn't be incriminating. It wouldn't say like one file that has the, you know, illegal such and such in it. It would be vague enough that they could have released that and and it wouldn't, you don't think it would have been detailed enough to like incriminate them to the public.

0:25:47 Andrew: Absolutely, absolutely, it would not have that level of specificity. It would be generic to the point of 12 boxes, it might just say, or to the extent that it conveys information, it would convey information at a high level, not a legal level.

0:25:48 Thomas: Okay, yeah, So if we had a left-wing Trump, which we shouldn't, but but in certain ways, it wouldn't be bad. They'd be doing the same thing of the, like, release the 30,000 deleted emails, release these receipts, Trump. You know. If it's really nothing wrong, release these, you could do right now, we could see what they took, Russia.

0:26:13 Andrew: Yep. Yep. Absolutely.

0:26:21 Thomas: If you're listening, sorry, no, not that, we don't want someone to do that, no. Bam.

0:26:25 Andrew: No, I, Had a session on the baseline rule of knock and announce, which is 18 USC 3109, and and I'm gonna read that one to you, that says the officer may break open any outer, inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant if, after notice of his authority and purpose, he is refused admittance, or when necessary to liberate himself or a person aiding him in the execution of a warrant.

That, that is interpreted as the knock and announce rule, but notice how it, it is written in such a way as to immunize the police from breaking the crap out of your stuff, right? So uh, in in other words, the, the baseline rule is, you know what you see on TV all the time, right, knock on the door, we got a search warrant, open up, five seconds later, okay, well, they haven't opened up, bring in the uh battering ram and you know, dive in through, that's the norm, that's, that's giving you notice. So what's a no-knock warrant?

Well, it's exactly what it sounds like, and that is governed in part by 18 USC 3013 a subsection B, which is called delay, and it says, with respect to the issuance of any warrant or any court order under the section to search for and seize any property or material that constitutes evidence of a crime, any notice required or that may be required to be given may be delayed if, and then there are a couple subsections, the court finds reasonable cause to believe that providing immediate notification of the execution of the warrant may have an adverse result, right?

That is, uh, right, I answer the door, you say, hey, I've got a search warrant, and uh, know, upstairs is Jesse flushing the drugs down the toilet, and I'm, I'm right.

0:27:14 Thomas: Battering ram, yeah yeah

0:28:06 Andrew: Stalling, you, you want to catch before something that's easily destroyed is destroyed, that's the, the most obvious basis of a no-knock warrant, uh, and by the way, uh, if you do that, the warrant must prohibit the seizure of any tangible property, uh, any wire electronic communication, or uh, with a minor exception, any stored wire electronic information, except where the court finds reasonable necessity for the seizure, and the warrant provides for the giving of such notice within a reasonable period, not to exceed 30 days after the date of its execution. So more realistic example would be, I own 12 warehouses, and what you want to do is raid one of my warehouses in the middle of the night, steal all the stuff, sorry, that's, that's a little editorializing there, um, seize all of the stuff that is permitted by via the warrant, and then serve the warrant on me in the morning.

0:29:02 Andrew: So you would go to the court, you would describe with particularity the things that you want to seize, it would prohibit taking anything that is not specified by that, right? So in that kind of example, right, you would have to then litigate, uh, above and beyond, if I, if I want to to do that, you plain sight rule, the best practice there, and I can't tell you the frequency with which best practice is used versus you try and get a judicial exception, is I go, you want to seize all the drugs in my warehouse, you go, you also discover the bloody knife, well, what you do is at 2:30 in the morning, you get a separate warrant for the bloody knife. Right.

0:29:37 Thomas: Yeah and Can I poke in here to say I think it's important, not in this case, because, you know, it's Trump, and so I'm sure people bent over backwards to honor all his rights and everything, which is what they should do in every case. But there's a whole podcast series, I think he was called No Knock, I can't remember, it might have been the name of it. And one thing that's really disturbing about this process to me is they interviewed a bunch of people involved in these no knock raids, and what became what pretty obvious early on is the judges are like, well, I assume the police have done their due diligence here and they're accurately representing everything, so they basically just rubber stamp it. And then the police on the other end were like, well, we assume if a judge is approving it, that the judge must have done a thorough analysis and is going to approve it because they're in charge of enforcing the constitutional rights and everything. And so both sides just think the other side is doing something and they're not. And that's how these things really get out of hand.

0:29:49 Andrew: Absolutely.

0:30:36 Thomas: And so it's hard to say with any specific case, but I just I thought it was important to note, like, that's why this goes horribly wrong, I think, in cases like Breonna Taylor and so forth, where it's like they effectively, I wonder, Andrew, like how much of a check this is on police power at all.

0:30:50 Andrew: I think both of those points are excellent. I'm

0:30:53 Thomas: Back to Trump. I'm getting the indication from what I've heard that they specifically waited for when Trump was not there. Is that true? True. And then also I saw that at the I don't know if it was the exact same time, but it also seemed like he was in deposition about the the taxes. Was that coordinated? Am I reading way too much into that?

0:31:14 Andrew: I don't know how to verify either of those, again, Trump had representatives who were there, including legal representatives, and so the, the search warrant was appropriately executed.

0:31:25 Thomas: Right. Right. Yeah. I guess it wouldn't really mattered, huh?

0:31:25 Andrew: Right um Might, you say, uh, as a matter of effective law enforcement that you would not want Trump there, I could understand, I could, I could absolutely see that.

0:31:37 Thomas: Yeah. He'd make a spectacle of it maybe. And yeah.

0:31:37 Andrew: Right Yeah. He's recording you on truth dot gab dot whatever, right, um, all could be the case, so I, I could see that. I, I had a segment on, on Trump taking the fifth before, uh, the New York Attorney General civil investigation into his finances, um, that is exactly what you would expect, uh, you can, we've talked about this multiple times on the show, you can plead the fifth in any governmental proceeding. The question is whether the finder of fact can be directed to draw an adverse inference. Right. They

0:32:04 Thomas: Mm hmm. And if it's civil, I thought they could. Right topic

0:32:13 Andrew: Absolutely can be directed, under particular circumstances, to draw an adverse inference to the fact that somebody said, declined, hey, to answer that question on the grounds that it might incriminate me. How that interacts with civil penalties that are asserted by the Attorney General by statute require some unpacking. So, you know, we're going to we're gonna kick that one down the road to, if there are civil penalties that are levied against Trump in connection with the valuation of his New York properties, which I think is is approaching a certainty. Right. It's less interesting to me because, again, he's very clearly stolen more money than we're going to claw back. But clawing back some of it will be a good day. Anyway, but box that aside. So Trump's representative, Christina Bob, went on Dinesh D'Souza's podcast, which, you know, who, and said, yeah, they were trying to seize presidential records or any possibly classified record. They were looking for classified information that they think should have not been removed from the White House, as well as presidential records. And the first line of defense that was rolled out was, well, classified information is

0:32:35 Thomas: For another day. God.

0:33:22 Andrew: The president gets to declassify whatever he wants. So, you the old version of the Nixon response, you Know, when the president does it, it's not illegal. Legal

0:33:29 Thomas: Yeah, I mean, that is true when he's in office. Right, right.

0:33:33 Andrew: Is sort of true when he's in office. Okay, we, we talked about this. This is actually a good example of, a couple of episodes ago, when we talked about the notion of plenary power. This is another example of plenary power, right? The president is commander-in-chief, okay, and that means, this case is a fairly recent one, actually, Department of the Navy versus Egan, 1988, and if you're thinking about the power of the president to classify or declassify documents, I, I might have thought this was litigated prior than, you know, 35 years ago, but here you have it. Uh, the president is the commander-in-chief of the Army and Navy of United States. His authority to classify and control access to information bearing on national security and determine whether an individual is sufficiently trustworthy to occupy a position in the executive branch that will give a person access to such information flows from this constitutional investment of power in the, the president, and exists quite apart from any explicit congressional grant.

The authority to protect such information falls on the president as head of the executive branch and as commander in chief. So yeah, the president can instantly declassify things. The problem is this is like the pocket pardons, right, argument we talked about, how pardens are another one of those things that, you know, the power is plenary, or virtually plenary, in the hands of the president, but you You still have to do it.

0:34:04 Thomas: Yeah.

0:34:52 Andrew: You still have to follow the procedures. And here, the procedure that's been set forth is an executive order. It's EO 12958. And again, think of the counter-argument here. The president could change an executive order whenever the hell he wants, right? So the idea, you did not declassify this according to the standards set forth in your own executive order, and you could have promulgated an executive order that says, whenever I say so, you know, becomes it. But none of that happened.

0:35:06 Thomas: Yeah. Right.

0:35:23 Andrew: And so that leads us to believe if the question is right, just like pocket pardons. Did Trump do this while he was the president and had plenary power to do so? Or did he do it at a time afterwards? Right. It's not a good argument to say, well, you could have just done whatever you want. Yeah, but if he had done it while president, there would be these indicia that the procedures were followed and there's none of that evidence.

0:35:49 Thomas: And if he had, I imagine They they wouldn't be executing a warrant on Mar-a-Lago to go get these things. If he had declared them not secret when he was president. Right?

0:35:50 Andrew: That is exactly right. And there's a second component to this, right, which is information can be classified or declassified at will. And there are statutes related to the dissemination of information, transmitting confidential secrets to the enemy. There's also significant amounts of law regarding the documentation of that process itself, right, and that gets us to the Presidential Records Act. And here is the story, as, as much as I can piece together, of what happened, and it starts off with the former archivist of NARA, right, of the National Association of Records Archives. David Guys, right, Ferrero. He was appointed by Obama, he just resigned uh April 30th of this year, Biden has nominated his successor Deborah Steidel Wall, but know, because of the Senate and Mitch McConnell, uh, she has not yet been confirmed, so right now there isn't a presidential archivist, there's an acting archivists, but

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0:39:53 Andrew: As far as I can tell, David has the archivest noticed on January 20th of 2021 that Trump and his staff seemed to be, like, taking a whole lot of boxes out of the Oval Office on his last day in office, right, and, you know, this is not like loading up the U-Haul, uh, with your personal belongings on the move out day at the end of your lease, right, like all that stuff had been taken care of already. This was, you know, as As we're, you know, exactly right. This was, hey, this looks fishy. Lots of people are taking boxes out of the White House and sticking them in Marine One.

I'm the archivist. Those documents belong to me. Put a pin in it because they do. And so he sent a whole bunch of sternly worded letters and then crunch wraps. And that actually led to a cooperative investigation. And I went back and I pulled up reports from the Washington Post in February of 2022. OK, so I'm going to read this from The Washington Post, February 7th, 2022, 15 boxes of documents containing important records from Trump's presidency, such as communications, gifts and letters from world leaders had been recovered from Trumps Mar-a-Lago residence by the National Archives the previous month.

0:40:23 Thomas: He's like, get everything. We'll have to play the cleaning deposit on the white house.

0:41:20 Andrew: Month, right? So sometime in January, this suggests that Trump used his Florida home to retain possession of presidential documents, impossible violation of the Presidential Records Act. Some of the recovered documents were marked as classified, including some at the top secret level. Okay, now how did NARA get those records back in late January of 2022? And the answer is that that NARA, by and through the Department of Justice, contacted Donald Trump by and through his attorneys and said, hey, have reason to believe that you may have taken stuff out of the Oval Office on your last day in office, and we'd like to get that stuff back. And Trump's lawyers said, definitely didn't. But, you know, if we did, we will go, we will take a look and we'll turn over anything to you.

0:42:07 Andrew: And then after some back and forth, remember, this is a year later. After, right, some back and forth and tussling and this and that, they said, hey, OK, we're going to give you these 15 boxes of documents. OK, that is the voluntary disclosure. So when you hear Christina Bob and Dinesh D'Souza and, you know, other idiots in Trump world going, well, they could have just asked us for it. They did.

This is what you gave them, and so when we are trying to figure out how did probable cause issue for the issuance of a search warrant here, well, really obvious example is you're looking at the boxes and they're labeled boxes one, two, three, four, seven, eight, nine, right? Like, yeah, you could infer and go to a judge and say, um, that didn't give us boxes five and six, right, and, that would probably, you know, some, some other stuff rise to the level of, yeah, you ask them voluntarily to produce stuff and they very clearly did not produce everything that was responsive that they claimed that they were giving you.

Now you can also do that at the file level, right, like, or even at the document level, you go through it, you look through, and you go, this is, this is not a hard thing to do, particularly if you're a lawyer used to doing this. You're looking within a box, and you're like, oh, there was clearly a file between here and here, right? Like, boxes get numbered, people use the little manila file folders, and you use, right, the tab that is directly to the left, right?

And, and so, seriously, like, if you're flipping through and it goes from, like, or it's like a tab all the way to the right, tab an inch to the, tab two inches to the right, tab five inches to the right, you're like, okay, well, there probably was a couple of file folders is in here. Um, if you have

0:43:49 Andrew: Emails, right, and it is an email chain, and all of a sudden you notice that every copy of that document is missing an internal page that covers a particular date, right? Like, it's an email train from uh December 20th through January 6th, let's just pick those dates at random, and then, right, you notice that none of them have the January 3rd email, but in the text it says, in response to your January third email, I'm not sure I agree with that approach. Right, well, then you might infer that they've gone back and, like, torn out the pages. Right.

All of that is to say, my best guess, again, want to be as crystal clear as possible here, is that there is serious, significant evidence of that type over and over again that led the Department of Justice, upon review of this matter referred to them by NARA, to conclude that the voluntary production excluded certain documents. And that's when you go get a search warrant. You right. Say, hey, we asked him to turn over everything. They very clearly did not give us this, this, this, this and this. So we need to go get that. That's when, when you go to court, that's how this process works. Could it, could it be other, it could be, but now right, interpret that in light of Trump's defense of, you, this is just a sort of bare violation

0:45:22 Andrew: Of the Presidential Records Act that, you know, he's keeping like the buffalo horns that were granted to him and you gifts and this and that, no, he's already returned all of that stuff, right? This is the stuff he refused voluntarily to return despite having promised to do so. And the idea that this is just, you technical, well, the easiest way, I think, to defeat that argument was, um, you cared about this a lot when it was Hillary Clinton's emails, right? And and want to explore that category for a little bit, because there are some myths, misconceptions. But may recall that we did not treat that allegation the way that we do now. We did not to treat that initial allegation as this is a joke when it was made against Hillary Clinton, we evaluated that allegation.

0:45:27 Thomas: Yeah, yeah, yeah.

0:46:12 Andrew: We went through, looked at that was episode uh 13, and said, um, and I read all 240 cases related to, uh, one of the many statutes, uh, that criminalize mishandling of official documents. So let's get to those, because, uh... there's one that, again, I think is being used as a wham line, there's good reasons for it, but there are also significant reasons to doubt it. So, so the Presidential Records Act is a big hairy deal, I get that, it sounds like, you, the Dewey Decimal System, I put the book back on the wrong shelf, and, you know, I've got an overdue library book, and so I'm going to pay the 30 cents a day penalty, but this was a post-Nixon statute Right.

0:46:58 Thomas: Right, yeah. All.

0:46:59 Andrew: That was designed, right, so it's 44 USC 2201, uh, at sec, and it says the United States shall reserve and retain complete ownership, possession, and control of presidential records, and such records shall be administered in accordance with the provisions of this chapter. So those provisions include things like destruction, which is 2203 C to E, which says, during the president's term of office — we have reason to believe he violated this all the time — the president may dispose of those presidential records, such president that no longer have administrative, historical, infinite, informational, or evidentiary value, if the president obtains the views in writing of the archivist concerning the proposed disposal of such records, and the archivist states that the archivist does not intend to take any action under subsection e of, of section, right, in the event that the archivist notifies the president that they do intend to take action, the president may dispose of such records if copies of the disposal schedule are submitted to the appropriate congressional committees at least 60 days of a continuous session of Congress in advance of the proposed disposal date.

For purposes, the section continuity is broken only by an adjournment of Congress, uh, and the days on which the House is not in session, because we're in a, blah blah blah, right, and then the archivist shall request the advice of the Committee on Rules of Administration and the Committee on Governmental Affairs of the Senate and the Committee on the House Oversight and Committee on Government Operation of the House of Representatives with respect to any proposed disposal of presidential records whenever the archivist considers that these records may be of special interest to the Congress, or in consultation with the Congress regarding the disposal of these records is in the

0:48:36 Andrew: Public interest. All of that legally is meaning that you can't just rip something up if you're the president.

0:48:42 Thomas: Right, I know you can't, and you said, oh, this is actually a big deal, even though it kind of sounds like, oh, you took the stapler from work or whatever, whatever, you're saying there's a big deal, you are saying he's violated this all the time, and Maggie Haberman's book, I think, has a bunch of examples, like, obviously, definitely violated this the whole time, then if it's such a big deal, why has nothing happened? Like, what's the teeth of this thing?

0:49:04 Andrew: That's the ultimate question, and the answer is it depends on the kind of records, right, because I don't want to take Trump's, let's take Trump side for a second here, right, suppose in a fit of anger President Biden, like, was drafting up a memo and, like, you handwriting, uh, a particular, uh, memorandum to, I dunno, Joe Manchin, right, and he starts it off, you know, "Dear scumbag," and he's like, all right.

0:49:30 Thomas: Dear asshole.

0:49:31 Andrew: Right. And then and then tears it up, right, and throws it in the trash can, yeah, are we going to impeach President Biden for "dear scum bag"? Now, I know Donald Trump, the answer will be lock him up, right, but but, an actual as a matter of fact, you would want to calibrate the penalty that you're thinking about to the effect of the actual record, or records that you're talking about

0:49:31 Thomas: Yeah.

0:49:54 Thomas: Well, right. That's why I asked what the teeth is. Because if you're talking just impeachment, then it doesn't, this thing's worthless piece of paper. It doesn't a matter.

0:49:56 Andrew: Yeah oh yeah and I am not, what I'm saying is that the PRA, the Presidential Records act does does not, in and of itself, in that section of the law, contain the criminal penalties for violating that law. Instead, that is left to a series of interlocking criminal statutes that govern what do you do when somebody intentionally and willfully mishandles things that belong to the public.

What the Presidential Records Act does, and the reason that it is so critically important, is to define that everything the president does belongs to the public, and the day the second that the president's term of office is over, control passes to the Archivist of the United States, right, that is 2203 g1, that says the second you're not in office, the person that gets gets to control all of these records is the archivist, not you, not Congress, not anybody else. The Archivists of the United States, who is then directed to maintain custody, control, and preservation of and access to the presidential records of that president.

The Archivists shall have an affirmative duty to make such records available to the public as rapidly and completely as possible. Okay, so PRA explains these aren't your records, Mr. Trump, these belong to the American people, and then it is left to other criminal sections to say what do we do when somebody, including a president, disposes of records that they shouldn't be disposing of, and the answer is it depends on what those records are. So I love this one, uh, because this does directly apply, and, you know, I would give it a partially true.

0:50:02 Thomas: Okay.

0:51:48 Andrew: There is a also circulating in the rounds is didn't Trump make it a felony to do the thing that he's now done? Right.

0:51:57 Thomas: Oh, I saw it was like, didn't he increase the penalty from one year to five years because of Hillary or something?

0:51:58 Andrew: It it I'm glad you did because it's the exact same question. Increasing from one year to five years is how you make something a felony under federal law. Right. Right. If the penalty is up to one year, it is a misdemeanor. And then if the penalty is from more than one year up, that becomes a felony. So this is 18 U.S.C. section 1924. And it says, whoever being an officer, employee, contractor, consultant of the United States, and by virtue of his office becomes possessed of documents or materials containing classified information of the United States, knowingly remove such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title and it used to say or imprisoned for not more than one year or both, which made it a misdemeanor. In 2018, as part of Trump's tantrum over extending FISA warrants, uh, the Republican Congress agreed to strike out, uh, this was, uh, HR 4478. So, so this bit of

0:52:09 Thomas: Oh, interesting.

0:53:06 Andrew: Trivia is true, uh, they agreed to strike out the not more than a year and replace it with not more than five years, and by making the maximum penalty up to five years, it makes it a felony. Um, but that being said, there are lots of other statutes at issue here, right? So but that one applies to classified information. But a hundred percent.

0:53:24 Thomas: Wow. But could that apply to Trump here? Okay, cool. So that could be real. I mean, that's, yeah, interesting

0:53:26 Andrew: Right, yep. Yep. Um, So could, and I'm not going to go through it, I will refer you back to our episode 13, and I wrote a fantastic, I reviewed it here, I'm not trying to just pat myself on the back, a fantastic memorandum about Hillary Clinton's emails, uh, but that is 18 U.S.C. sections 793 e and f, so I will just refer you back to that episode and to my memorandum, which will link in the show notes.

Um, the one that's really making the rounds is 18 U.S.C. 2071. And you will see the overlap here, which says, whoever willfully and unlawfully, and then here's the phrase, conceals, removes, mutilates, obliterates, or destroys, or attempts to do so with intent to do so, and carries away any record, proceeding, map, book, paper, document, or other thing filed or deposited with any clerk or officer of any court of the United States or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years or both. Okay, so this is a felony that predates the Trump amendment, right? So, uh, he, could have been hoist on any number of petards.

0:54:29 Thomas: Of his own making or Republicans on making, right?

0:54:31 Andrew: Of Right. But But this is, you know, this, this predates uh, but this contains this section that, again, uh, Mark Elias tweeted out, and I'm going to tell you I don't think applies, says, whoever having the custody, so that was subsection a, that's the crime, three years in prison for for concealing, removing, mutilating, obliterating a record, right? Subsection b says, whoever having the custody, willfully and unlawfully conceals, removes, obliterates, blah blah blah, shall be fined under this title, imprisoned not more than 3 years or both, and and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term office does not include the office held by a person as a retired officer of the armed forces of the United States. So Mark Elias was like, look, is the president, right?

0:54:33 Thomas: Yeah. Okay, hmm.

0:55:19 Thomas: Checkmate. We got him.

0:55:20 Andrew: He shall forfeit his office, and be disqualified from holding any office under the United States. Now, immediately when I read that, I thought about our good friend Seth Barrett Tillman, right? Does the presidency count as an office under the United States? And we went back and forth on this. But as it turns out, there's an even better argument as to why this particular provision does not apply. And it was written by our good friend Seth Barrett Tillman in 2015, long before Donald Trump entered the race. What happened was, this was the breaking of the Hillary Clinton emails news thing. So, 2015, and Michael Mukasey, former attorney general, went on Morning Joe and said Hillary Clinton is not eligible to be president.

0:56:08 Andrew: So here's what Mukasey said. I think the more dangerous part of this, from Hillary's standpoint, is not so much the placement of the material on her server as wiping the server, because there are other statutes that deal with what happens if you're a custodian of public records and you, among other things, alter them or obliterate them. Number one, that's a felony. But that statute makes you unqualified, disqualifies you from holding any further office in the United States.

And she's running for a further office under the United States, right? Joe says, you're saying there's that statute on the book right now? Yes, that would prohibit that. He says yes, 18 U.S.C. 2071. Okay, so referring to exactly this provision, and Seth Barrett Tillman wrote an an article, uh, that was entitled, "Secretary Clinton Can Relax Because Section 2071 Disqualification Does Not Apply to the Presidency," a response to which, by the way, got Mukasey to withdraw that charge. Okay. He then subsequently was like, yeah, no, I think that's the better reading. And here's what that reading is, right? Independent of the, is is the residency a further office under the United States? So reserve on that question, as we have with Professor Tillman, here's what he says. It is widely accepted that the Supreme Court's decision in Powell versus McCormack and U.S. Term Limits Inc. versus Thornton have come to stand for the proposition that neither Congress nor the individual states can add to the express textual qualifications for the House and Senate in Article One. Importantly,

0:57:31 Thomas: Right.

0:57:32 Andrew: The rationale of U.S. Term Limits, i.e., the primacy of the written constitution's express provisions setting fixed textual qualifications, expressly and equally applies to the qualifications for the presidency and vice presidency in Article Two. This extension of Powell in U.S. Term Limits appears uncontroversial, for example, and then quotes from another case. So in other words, the Constitution says who is eligible to be president and who is not. So the fact that Congress said you can't hold any other federal office prevents you from going back to the executive branch, right? Yeah. Hell yeah. That's the dude who destroyed all the documents. Yeah. Cannot be back in the executive branch. But Congress can't say we're going to prohibit you from being eligible to be president. That makes manifest sense as a balance of powers issue.

0:58:21 Thomas: Don't they they do that when they impeach and convict? It's expressly written into the constitution.

0:58:23 Andrew: So But that's because the the Constitution says, right,

0:58:28 Thomas: Interesting. Okay.

0:58:28 Andrew: Upon impeachment, uh, can have the penalty of, uh, no longer being eligible for president. So the the way to read that statute, right, because again, remember, this applies to any custodian, anybody who gets government documents. It's to say, yeah, if you're an average government employee and you're convicted under 18 U.S.C. 2071 of having destroyed or mutilated or obliterated documents on purpose, you're prohibited from working in the civil service again. But can it prohibit you from running for Congress? No, it can't prohibit me from running. From for congress.

0:58:39 Thomas: Yeah. Yeah, yeah. So that little gotcha doesn't work, but I mean, interestingly, the felony one, I mean those could, could that play into this, we'll see. Well,

0:59:06 Andrew: Absolutely think all of these could. And the biggest thing is to push back on the talking points of, you know, you're, you know, this is just filing a book in the wrong place, and why didn't you ask us the evidence? The undisputed evidence, right, from the Washington Post, from media accounts from February of 2022, is, yeah, we did ask you, and you gave us a record that was so obviously incomplete that the DOJ was was had no choice but to go to a U.S. magistrate judge and get a search warrant to get those documents. And again, and to kind of bring the last thing to a close, remember, we discussed that that the Attorney General Merrick Garland extended the Bill Barr memoranda regarding sensitive political inquiries. So good. Let's just leave that out there. And then I'll come back and get it.

0:59:57 Thomas: I have a galaxy brain theory that that could be why Trump was talking about announcing for president early.

1:00:03 Andrew: A lot of people have said that. Yeah.

1:00:05 Thomas: Well, I thought of that on my own, damn it, but yeah, that's okay because He's got the every incentive to not do that because of the financial stuff, but if he's trying to like dodge this investigation and the point of all this is, seems to be that this is not none of this, rate quote unquote, raid none of these warrants or none of this was a surprise to anybody. Trump is making a big deal about it, right? I mean, they've been going back and forth. They were notified. This is not a surprise, no knock anything. Trump knew this was coming, or Trump's lawyers or whatever, right. And so the point is that could have been informing the decision to announce that he's a candidate for president. That's really interesting. So bottom line question, Andrew, did we get him? Is this what you think Is this what you think is going to be the first thing that gets Trump down? We've got this rock solid, obvious, no-nonsense case that you violated the following provisions of the law regarding these records and we gave you ample opportunity to return them. You didn't.

You didn't give us everything to the extent we had to go serve the warrant to go get this stuff. Kind of punishment would he be likely to get? I mean, do these counts add up? Can he get, you know, a bunch of counts of this for 20 years or something or what?

1:00:08 Andrew: No, absolutely.

1:01:15 Andrew: So you could. But but again, remember that generally speaking, federal counts of the same crime are served concurrently rather than consecutively. Right. So you're not going to take 30 instances of disposal, mutilation of records or what have you, and get zero to three years times 30 and, you know, wind up putting them away for 75 years on These this. Are all felonies. A Right. Lot rich coming from the party of law and order to say, well, you know, right.

1:01:45 Thomas: Yeah. And the party of Locker up for emails too.

1:01:48 Andrew: Right. Yeah. These are the exact same statutes that would have applied to Hillary Clinton. But he actually broke the law. And again, remember that this kind of scenario, if it is what I surmise, is the easiest way to prove the willful intent component of all of these statutes. How do you, prove willful intent? We, we asked you to turn back everything

1:01:48 Thomas: Yeah. But he actually broke them in a clear way. Yeah. Yeah.

1:02:09 Thomas: Yep. Yep. Yeah. For two years or whatever. Yeah.

1:02:13 Andrew: Yeah and you gave us boxes one, two, three, five, and six. Why didn't you give us box four? I didn't know. I mean, you know, and again, you're asking a jury to infer, but over and over again

1:02:25 Thomas: Was just going to ask you, this is, this is the kind of thing we need to get a jury to convict on though. I guess that's everything. Yeah.

1:02:26 Andrew: Yeah yeah Yep. Crime.

1:02:31 Thomas: I mean. Yeah. Crime.

1:02:32 Andrew: You know, you gotta you gotta, for crimes you get, you get a jury of your peers I

1:02:36 Thomas: That could. Yeah. Yeah. And it's the kind of thing. Well, it's also it seems to me crucially important whether or not that will have to be a unanimous jury, because I just in this day and age, I don't it's going to be so impossible to get a unanimious jury to do anything against Trump. I think that makes a huge difference.

1:02:53 Andrew: I just want to put a pin in what you've said, because, maybe I'm a little bit more optimistic than you are, but the fact that you gave voice to that sentiment, I, I think is the justification that, you know, what our friend Lawrence Lessig would call our, our chicken shit prosecutors, that, that's what they're saying when, right, they're kicking back and forth, all right, is it time to bring charges yet I I

1:03:13 Thomas: Oh, they should not be using that as a criteria. I'm talking about jury nullification by one Trump a-hole that would apply to any crime, no matter what the evidence is. That should not be what the prosecutors are using to make their decision.

1:03:28 Andrew: I agree with you that it shouldn't, but I will tell you, that, that, that absolutely is playing into the judgment, and part of it is because that's the response the response back to nullification is okay. I, and it's why I wanted to flag it, because here's my answer to you, right, the response back to nullification is, okay, I trust voir dire to remove, uh, Paul Manafort from being on the jury, right? So could you have people who are pro-Trump on the juror? Yes. What that means is, right, the way to ward off a nullification kind of verdict is to make the case so overwhelmingly clear that regardless of your political convictions, convictions, you nevertheless vote guilty because, because of the facts. Yep.

1:03:35 Thomas: Now, that's outrageous. It really shouldn't be. All Okay. But if that's what they're basing the decision on, in my opinion, they should resign. That's because if you're doing your job such that it's person gets to be held to a different standard because they have a cult like following and you may have to get somebody who, you know, has served in the cult to convict. If that's how you're making the decision, whether or not crime applies to them, whether or not they have to follow the law. That's borderline misconduct. That that's absolutely ridiculous. That should not be what they're making their decision on.

1:04:35 Andrew: Let's let's pick that up Let's picked that up at another point in time, because I think that's a discussion worth having.

1:04:40 Thomas: Ridiculous. All right. Andrew, as we're recording major breaking news, and uh, even though we're going way long, we love you so much, and even though I have to try to return this around a few hours, um, we just have to get to this because this was the topic of show. And Merrick Garland made a statement. It seems to me, based on what I can gather, and you can, you can let me know what you think. It seems like he was loathe to do this. Like, Merrick Garland doesn't like saying anything publicly about this stuff for good reason. And but the sort of the attacks on his people and the attacks on Justice were so bad that he wanted to speak about that and, you know, kind of make clear what was going on here. He made about a, you know, just shy of four minute statement. We've watched it. What did you gather from that statement?

1:04:46 Andrew: Yeah so topline, number one, it is consistent with everything we say in this episode in terms of my suppositions, and in fact gives us some evidence. Merrick Garland, the very first thing he said in the 'there are some things I want you to know' section, right, was about two minutes in, uh, after describing exactly what happened, uh, Attorney General Garland says there, I can't talk about the circumstances of the underlying case, but there are three things I really, really want you to know. The first thing was that he personally approved the decision to execute the search warrant. Right. So again,

1:05:57 Thomas: I would have thought that anyway, yeah

1:05:58 Andrew: I we surmise that anyway, we talked about Merrick Garland reincorporating the William Barr memorandum. This means this is not, rogue you prosecutor. This was carefully considered at the highest level. I mean, you don't get higher than the attorney general. Number two, consistent with that, the DOJ does not take a decision of this magnitude particularly lightly and emphasized we would have taken less intrusive means if they were available. If there was a way to get this evidence without having to execute a search warrant, we would have done it. There was not such a way. In connection with the facts that, again, confirming this was not a no-knock, that the DOJ made no public statements on the day of the search, copies of the warrant and the receipt were provided to Christina Bobb, the president's lawyer, who was on site during the search to watch what's happening.

1:06:55 Andrew: And that the said warrant was authorized by federal court on probable cause and answered the question you asked me in, which is that federal law requires that the law enforcement agents leave that receipt with the property owner. So, in other words, that the description of what they take is, you know, like loading the moving van. Right. They give it to you before they leave. And it says, you Know, we've taken one cell phone and six boxes and 12 files and a puppy. And, you you get that itemized statement before they go. The other thing that we learned in this that I just love is that, OK, Donald Trump says DOJ should make a statement. DOJ says, yeah, here's our statement.

1:07:40 Andrew: We talk through our court filings. We will not prejudice any individuals, right, by generating adverse publicity. We have filed a motion in federal court to unseal that search warrant and the receipt of the property in connection with the execution of the search warrant at Mar-a-Lago. We have done so on the basis that the president himself confirmed that the The search happened. And then what Merrick Garland described as, quote, surrounding circumstances and the public's interest, end quote, in that search.

So in other words, right, to combat the nonsense that's out there, they've said, hey, what we said, which is, OK, you, want, want to go off on Dinesh D'Souza's show and say that, you we've planted evidence and, uh, we will unseal, we'll we will have a court order us to reveal to the public exactly what we were looking for and exactly what we took. We will call your bluff. So, uh, I thought, that was great, and then obviously there's a, there's a minute at the end, you standing up for the FBI agents that, you are now, you know, again, Christopher Ray, director of the FBI, appointed by Donald Trump, but, you know, now they're all pedophiles shielding whatever's

1:08:54 Andrew: Because you know

1:08:54 Thomas: They'll say whatever, it doesn't matter, they have no, yeah it means nothing okay so didn't really change anything that you thought, you know, but also, I mean, I I imagine, yeah you're a big fan of him making this statement so we could get the unsealed record soon

1:08:55 Andrew: Yep yep yep Confirmed. A bunch of things, yeah, I am I we absolutely could at minimum we will get, the president must take a position on the motion to unseal, so it will be amazing yeah, if the president files a an opposition yeah definitely don't unseel that, yeah, okay, great, all

1:09:10 Thomas: Right, okay interesting. Yeah. Don't unseal these. Yeah, that'll be bad enough that I think that hypocrisy will make its way into the mainstream, you know, because that's pretty silly. All right. Well, that's what a great, I started fantastic. I'm ending fantastic. Still pessimistic, but you've persuaded me that this could be something. So I'm really looking forward to it.

1:09:41 Andrew: Right

1:09:42 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:09:48 Thomas: And now it's time for T3BE. Each, each week, I try to answer a bar question nothing but vaguely remembering a bunch of other questions that I don't quite remember correctly and getting it right some of the time. So here we go.

1:10:01 Andrew: I like the idea that somewhere out there is a first-time listener to the show. So Thomas, knowing that the owner of a house, it's a weird way to begin a sentence, but knowing that the owner of a house owned a large collection of valuable jewelry, a man decided to break into the house to steal some. During the day, when he thought the owner was at work, the man broke the lock on the door and entered. The owner was actually upstairs at the time, and the man could hear footsteps. Getting nervous, the men grabbed a necklace he saw lying on the coffee table. When he started to hear the owner coming down the stairs, the man panicked and smashed a window to escape quicker. Theowner had actually started coming Coming downstairs just after the man entering the house witnessing both his grabbing the necklace and smashing the window, the latter action scared the owner immensely and the police were called. In

1:10:22 Thomas: Let

1:10:57 Andrew: A common law jurisdiction you must, yeah, in a commonlaw jurisdiction what crimes could the man be guilty of? A. Larceny. B. Robbery.

1:10:57 Thomas: Me guess. I got to know precisely which torts, which crimes. Yeah.

1:11:10 Andrew: C, larceny and burglary, or D, robbery and burgery.

1:11:15 Thomas: One thing I do forget is the like, would you do the lesser included? Like, would You say larceny and like, if it's a burglary, is it always also a larcenY? I can't remember. I think no, actually, because think they contradict. I think larceny, if you larce, I think it's like they don't ever you didn't break in. You just walked off. Yeah. OK, so I don't. Well, I mean, but maybe this fact pattern is meant to, like, try to try to hit both of them. We'll see. All right. So let's see the important things he did. He knew he was his intent is there. He's going to steal jewelry. He's gonna break in and steal definitely burglary no matter what. Like, that's what he's doing for sure. I think what the key is, is it is it also robbery because the guy ended up so close to it that he was affected by. I imagine robbery.

1:12:00 Thomas: Actually, don't I don't think this has come up, but I'm just imagining that robbery has to be like from a person, I guess. I mean, I guest that must be the distinction here that it's like burglary is just like you break into a home, you steal stuff. Robbery must be, hey, stick them up and then, you know, you rob a guy. I think that must Be what we're trying to test here.

And I imagine there's some court case where this, you know, very close fact, marginal fact pattern where it's like, well, it wasn't, the necklace wasn't on the guy, but, you know, he was close enough to where it was, it scared him. And, you know, so it'll be, we'll see if Andrew Seidel was on the case, you know, knows about the case where, where this happened. Um, so I guess I'll have to guess what this, what this case found. The owner was there and the owner comes down the stairs, man smashes the window to escape. The owner had actually started coming downstairs just after the man entered the house, witnessing both his grabbing the necklace and smashing the window. The latter action scared the owner immensely. And I imagine that's important here in the police report. Okay. Common law jurisdiction. What crimes could the man be guilty of? A, larceny.

I'm eliminating A. It's definitely not that. B, robbery. That's going to be interesting because now I have to determine would you do robbery and burglary, which is answer D apparently. Okay. So C, larceny and burillery. I'm going to eliminate A and C. I think larcenies out the window.

1:12:36 Andrew: All.

1:13:22 Thomas: I think once you're doing all these violent actions and the breaking windows and all, I think you're no longer larced. So I'm gonna eliminate A&C and I'mma say it's B, B, robbery, or D, robbery and burglary? So the critical question is, can you get them for both robbery and burglar? If I've analyzed this correctly, or is it one or the other? Well, there is no just burglory option. So is it robbery and purgatory? I Yeah, there is no just burglary option.

So robbery is a given unless I think there's larceny going on. So I think robbery is given here. So I guess robbery must be, yeah, it must be the key is the person's close enough to be affected by it kind of thing. You know, like if you steal stuff and they're not there, that's burglury. If they're there, it's robbery, I suppose. Or if you have some sort of rules like that. But would we also get the burglery in there? There. That's what I don't know. Would you also charge them with burglary? A And common law. I think I'm going to go under the theory that robbery is undeniably happening based on my analysis. And if robbery is defined as like the person is there kind of thing, then I don'T see anything in here that he did when the person wasn't there or that. So I'm actually going to go B, Robbery. I have no idea. This is a weird one. But I'm between B and D, and I'm going to go B. Final answer.

1:14:35 Andrew: Right. And if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. I will tell you, we have had some fantastic T3b entries. Like people have up to their T3BE game. So, uh, I enjoy picking that winner every week. And, and you do not disappoint, listeners.

1:14:57 Thomas: But not me, though. My game is exactly the same. I have the same steady, possibly.

1:15:00 Andrew: Your game is your game has on a slow, steady incline since question number one.

1:15:05 Thomas: The moral arc of the T3BE is long, but bends towards 58%.

1:15:06 Andrew: Something. Yeah, exactly.

1:15:13 Clip: And thank you, Let's go!

1:15:14 Thomas: And now it's time to thank our new patrons at patreon.com/law. Hope you're enjoying all the goodies. By the way, I should throw this in because normies might not know. No, for for patrons, I gave two edits of that interview that was last episode. I gave the long unedited version, completely unfiltered. And. Patrons got the opportunity to either because I released the full episode for both. So you didn't have to like skip around. You could just pick or choose. So that is another perk. First time I've done that. I think it's pretty cool, though. I think people liked it. So maybe I'll do that in the future if it comes up. So that's another perk on patreon.com/law. And there's always the Q&A. There's a lot of movies should be coming at you pretty soon. And I'll start us off thanking the new patrons. Thank you to Make Racist Ashamed Again, Voting Blue in South Carolina, and you should too. Yeah, totally. Laura LaCombe, Matt Wold, DJSpouseMouse, Allie Awesome, Scott Seligman, Telani Lasoleille, sorry, Tyler Koloski, Jay, Mr.

1:16:11 Thomas: Bitey the Honey Badger. I call that one Bitey. Isn't that a snake? But yeah, Jennifer M Douglas, Andrew Berson, Alexis Allen and AJ Dick, your turn.

1:16:17 Andrew: Those are some great names, but, uh, joining them are Geoff Yost, Chandler Frontero, Dinah, Testator bequeaths this Patreon pledge to your youngest child when they turn 22, that is outstanding, uh, sorry, Lisa Nelsen, John Keiser, sinkingpoint, Sujeet Akula, Eva Raschke, Robert Whiteman, Nondescript Dan, Locke Lamora, ClarenceThomasIsTheAntichrist, and Ray Kosby. And if you want to get the same shadow, you know how to do that. Just head on over, patreon.com/law, sign up for as little as a buck an episode, we'll read out your name. What? One more perk you didn't talk about. This is, uh, episode 621. It is just about time to suggest new show openings. Yeah. We a lot a lot coming that I think are going to be taken from the Alex Jones trial. But there, uh, will be an all patrons and all patrons, patrons only post, uh, which you can post your clips. That is also a plea. Folks have been sending in clips to our email. We just it's good to have them in one place.

1:17:07 Thomas: Oh, coming up soon. Yeah. A couple of weeks. Yeah.

1:17:25 Thomas: Yeah. Sorry. We don't we don't. It's too. Yeah, it's it's too much. So the only place I accept the suggestions is on the Patreon. Apologies. That's how it has to work. There's just too too many emails, too much, too many stuff. And that's our show. Thanks so much for listening. Oh my gosh, Andrew, I am looking forward to Monday when we're going to have to talk about Alex Jones' damages and all that. So much fun. And I'm looking forwardto seeing how this develops with the unsealing of the documents. Lots to look forward to. What a great episode and breakdown. We'll see you next time, everyone.

1:17:27 Andrew: Yeah. Yeah. Yep.

1:17:55 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.

1:18:28 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.