OA623: This Week in High Treason

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 623, I'm Thomas, that's Andrew Torres, Esquire, Harvard attorney, qualified person, just drawing the contrast, how you doing Andrew?

0:01:28 Andrew: Just just in case, right? I'm fantastic, Thomas. How are you? I

0:01:29 Thomas: Yeah, I am good, know, still I'm excited about this consequences possibility, I know it's a small thing to be excited about consequences, like any form of consequences, but I am.

0:01:36 Andrew: I'm Excited as well. And I think there are reasons to feel optimistic. There are reasons. To feel like the national dialogue and landscape are changing. And, we've said this from the very beginning. Once that change starts, right, that can snowball. Ball, so I, I share that sense of optimism, but then again, it's always easy to get me on team optimism.

0:02:02 Thomas: Yeah. It's always easy to get me on Team Negatron. And I'm I'm a little worried. I'm but I remain I optimistic. I think that I'm not ready to say, you know, Merrick Garland was right and doing a great job all along. But I am fully open to that being the eventual outcome of this. How do you feel about that?

0:02:05 Andrew: So that's True. That's Such a great question, and I, I, think I agree with you on, I, I, that thank right you for subject to the constraints that we were given in the running were Merrick Garland and Doug Jones not in The running, you Know, uh, Morgan Stringer, right? You, right, like, I would have loved if I were president, would have made Morgan Stinger, you know, my attorney general, and I would have said, "Hey, I want you staying up 20 hours a day, and I don't want you to rest until, you know, the one-eyed man is brought to justice." The one right armed man, I guess I should, and by say that, I mean, Donald Trump.

0:02:29 Thomas: Hmm. Me, the

0:02:52 Andrew: Right. Like that.

0:02:52 Thomas: Tiny handed man.

0:02:53 Andrew: Yeah. The tiny handed man is brought to justice. There we go. That was clearly not the operating instructions that were given to Merrick Garland. So, you within the constraints of what we've had, the question has then become, you does he take the cases as they develop in front of him or, you as people have alleged to varying degrees, is he, you Lawrence Lessig's chicken shit? Well, we're to talk about somebody who's chicken shit on this. He's not chicken shit, right? Is does he have his thumb on the scale for the higher you go up? Know? Is he afraid to go after Trump? I don't think any of those things.

0:02:53 Thomas: Yeah.

0:03:28 Andrew: I don't think we have the reason to believe those things are

0:03:29 Thomas: Well, yeah. No, the we've We've argued about this before, but I do worry that he might be too scared of going after Trump when he would have gone after any normal citizen that he's given. You know, that's, that's the only thing I'm worried. I'm not worried about him being corrupt or whatever. Yeah.

0:03:31 Andrew: True.

0:03:42 Andrew: That's a hard one. Yeah.

0:03:44 Thomas: But well, that's good. I mean, so still optimistic and will say this, that press conference was pretty amazing. I liked that a lot and hope there are more things to come. All right. So much show. I know you wanted to make a little announcement before we get going about next week's show.

0:03:49 Andrew: Yep. Yep.

0:03:58 Andrew: Next week, we have an unambiguous good new show from start to finish. So if you've got friends who, you they're sometimes along for the ride, but, you know, sometimes it requires a little bit of a breather. We get that. We're going to talk about a fantastic decision and we're going to layer on top of that a really, really great interview that we did. Um, if, you ever wanted to to bring folks back into the Opening Arguments fold, next, next Tuesday is going to be a great opportunity to do that.

0:04:28 Thomas: No one's left the opening arguments fold. I've seen the fold numbers, Andrew. Fold numbers are good.

0:04:30 Andrew: That's true. All right, good, good. But good news next week. Yeah.

0:04:36 Thomas: Love it. Um, What's the Trump news?

0:04:37 Clip: Treason is treason.

0:04:43 Thomas: I'm

0:04:43 Andrew: There's a lot of stuff that I want to cover. There's an area where I disagree with a prominent former FBI lawyer, and I hope that I'm wrong on that. Yeah, here, so are the Trump updates. And I want to begin with a couple of legitimate Andrew-was-wrongs. Then I want to defend myself against some charges that have been brought listeners. Listeners, but um, let's start off with breaking news today with respect to a motion by both Judicial Watch, yes, that's the former Larry Clayman outfit that he was ousted from, and news organizations to unsell the affidavit supporting the search warrant. As of the time we went to broadcast, it looks like the resolution there is that that judge wants to see what a redacted version of that affidavit would look like before ruling.

0:05:07 Thomas: Now What's in that affidavit? Is that an FBI agent affirming, affidating, affianting, or is it whoever their source might, might've been on, like, this someone telling the authorities that there might be a weird situation going on in Trump's document basement.

0:05:50 Andrew: So Again, it can, both an affidavit in support of a search warrant can rely upon information that might not be admissible at trial, right? Like hearsay. You don't run it through the rules of evidence. It just has to be sufficient evidence to establish probable cause in the mind of the magistrate judge. But it will be signed by a single affiant, or if you have more than one, right, multiple affiants.

And those will be the FBI agents that are working the case, that are handling the surveillance, that our doing the day-to-day stuff. So it will recount not only what they have seen, but if people have told them stuff, it will recount what they have told them. At, that, obviously I watched the coverage of that motions hearing today, and at that hearing the Department of Justice said, this warrant lays out in detail, we are, in quote, the early stages of a significant investigation that is politically sensitive, that is incredibly important, right. It basically did two things. It said, this is kind of the playbook for our case against Trump, which is still in the early stages. That's how I read it between the lines. So, look, we, we knew, right, it was not hard to decode from, from the face of the warrant itself, that the DOJ is considering filing charges against the former president. It's kind of nice to hear them admit that in open court. And, was surprised that if you had asked me to wager, I, I'll would have bet the wrong way.

0:07:26 Andrew: If my wager would have been that the judge would have just flatly denied this request from the beginning. Would have said, nope, there is, you know, yeah, there's significant public interest, but public interest is outweighed by the need for prosecutors to build their case. So, uh, denied. And here, what the judge said was, we want to see, right, what, you would propose to release, uh, in redacted form. And, you know, that puts the DOJ in a tough spot, right? If they, if they do a catch-22 style redaction, redact, right, everything but the salutation and the signature, uh, then that

0:08:04 Thomas: Yeah. That's going to politically look like, oh, they did this based on nothing.

0:08:04 Andrew: Yeah, well, and also that's going to push the judge to release an unredacted version. Right. So, yeah. On the other hand, if they're you able to kind of cut a fine line and protect their witnesses, their confidential sources, that sort of thing, then the judge might say, well, OK, well, this looks pretty good, good, right, you've done a good job on this, so congratulations, you lose, right? So it's a tough spot to put, to put lawyers in. The off-the-cuff statement I made that I want to own up to, we didn't do a lot of follow-up on it, but I said Trump's lawyer would have a copy of that affidavit, and that's not true, okay.

0:08:13 Thomas: Oh, I see. Yeah, yeah. Oh really?

0:08:46 Andrew: Yeah. And and they they get the word. I was thinking about cases again. I, I want to take responsibility first and explain second, right. I was thinking about cases in which search warrant is accompanied by an arrest warrant, right, which often happens, and in that case, when they have decided to arrest you, you will get the whole packet, right.

0:08:46 Thomas: Okay. They just get like the warrant.

0:09:05 Andrew: When, when when they bring the charges against you, uh, yeah, now you get to know. But when the investigation is still open, when there are still witnesses that could be identified and coerced for example, and you know, it's not like, like, that's not within the Donald Trump playbook than in, in their discretion. Because remember, what you're entitled to know is you're entitled to no that a judge, a magistrate judge, found probable cause to believe there would be evidence or instrumentality of a crime here. You're not entitled to know all of the things that went into that magistrate judge's decision.

0:09:05 Thomas: Oh okay. Right, right, right.

0:09:40 Thomas: Right. Until

0:09:41 Andrew: Right.

0:09:41 Thomas: You're actually charged.

0:09:42 Andrew: Until you're charged. And then when you're. Charged at

0:09:43 Thomas: And then you have that whatever amendment right to like face your accuser kind of thing. Is that where that comes from? Eighth amendment? What is it?

0:09:48 Andrew: Exactly right. Plus, even a Sixth Amendment, but but even that's right.

0:09:53 Thomas: Look, my error bars of plus or minus three amendments, is, I'll take it. I'm

0:09:57 Andrew: Yeah. That is great. That's

0:09:57 Thomas: I can get Thomas's second chance bar exam, can get within three amendments of the right amendment, I think. Don't even try.

0:10:05 Andrew: Outstanding. T2 all right. Yeah.

0:10:08 Thomas: It's impossible.

0:10:08 Andrew: I will not. Okay, it would also fall within your rights of discovery, and particularly within, uh, the broader rights set forth in Brady versus Maryland, right, for the, to require the government to turn over all potentially exculpatory material, right. You would want to know, okay, what, did you tell the magistrate to find this evidence, because are, are you still defending that kind of, is there an inconsistency, right?

So there are lots of reasons that you would be entitled to get it once you have been formally charged. Uh, but, uh, but I had said offhandedly that that they have it now, and they, they don't have it now, and want, uh, to own up to that one. The second thing that I want to hold up to, that, that's a little bit, it's a, it's the acronym from, uh, SCI, which again, tried to do off the cuff in our bonus episode, uh, that's not, not an excuse, uh, but, uh, it is, SCI is sensitive, sensitive compartmented information, and I believe I said segregated. So, you in any event, uh, we got a fair amount of kind of gentle we got mostly gentle emails, but I want to read this one from, from listener Paul, and because I thought the best ones were the ones that explained kind of the importance of that compartmented portion of it classified, here's what Paul says. Classified is an umbrella term for anything that needs to be protected. Under that umbrella, there are many subsets.

There is for official use only, for example, that pertains to things that need to be protective but are not necessarily governed by a specific set of rules. This could be administrative things like the plan of the day, the names of crew members, etc. Going up the scale, you get to confidential, which is the lowest classification that is governed by fixed rules.

Going from there, you have secret, then And top secret, beyond each classification term, there can be additional qualifiers like no foreign, N-O-F-O R-N, which would mean it can't ever be released to foreign nationals, For right?

0:10:53 Thomas: We got a lot a lot of emails. It's All right, but

0:11:59 Andrew: Example, NATO countries, right? So even our allies, you would say, all right, this is top secret and no foreign. Behind top secret, there can also be S-C-I, sensitive compartmented information, which is almost always followed by a letter. And I've seen other folks say code word, right, letter or code word designating the compartment, right, that that information was gathered under. And then the way to think about it is, you need top secret to be able to access it, to, have clearance, right, to be eligible.

But then the question is, do you, despite being entitled to look at this kind of information, do you need access to this particular information? And so, when something is top secret and SCI, not everybody with a top secret clearance gets to see it. You, right? Have to have both the clearance and the need to know. The need to know is necessary to then give an access. So, and I've, I've extempt a little bit from Paul's letter. I'll go back to his terms. So the classification authority has to balance the need-to-know with the protection of the information, at the same time allowing people that could use the info access to it for their work. After your need to know is done, you are read out of the program and sworn to keep those secrets for life. There is no waiver for the lifetime commitment to secrecy. So, uh, I thought that was helpful to understand the hierarchy, and yeah, I, biff the name, so I gotta, I gotta own up to that one. So there

0:13:22 Thomas: None of this is as serious as, like, you recipe that was shared in an email to, to a friend on a server that wasn't necessarily the official server, right? None of it is like that sensitive. That's code word top double secret recipe emails.

0:13:31 Andrew: You go, that's, that's code word Toll House. Yeah, um, here is one that is definitely not an Andrew was wrong, and I thought we had flagged it out in advance on the show. I'd even identified the piece in the Atlantic, which is called, not even the president can declassify nuclear secrets. And a hey, have you read this piece in The Atlantic?

0:13:52 Thomas: Yeah,

0:13:59 Andrew: Not even the president can do it, right? So I want to read to you the second to the last paragraph of that article, because this is what's wrong, wrong unambiguously clearly wrong bordering on nonsense. That's not to say I don't love the Atlantic. It is to say when you read it, you will see, other than the parenthetical reference to the Atomic Energy Acts of 1946 and 1954, zero citations, zero analysis, zero evidence, and it's just a mismatch of stuff of, that's not correct. So here's what the article says. There are certain materials that presidents cannot classify and declassify at will. One such category of materials is nuclear secrets. Anything related to the production or use of nuclear weapons and nuclear power is inherently classified, and Trump could utter whatever words he pleased, yet still be in possession of classified material.

0:13:59 Thomas: I know. Yeah.

0:14:50 Andrew: Where are nuclear warheads? What tricks have we developed to make sure they work? This information is born secret, no matter who produces it. The restrictions on documents of this type are incredibly tight. In the unlikely event that Trump came up with a new way to enrich uranium and scribbled on a cocktail napkin poolside at Mar-a-Lago, that napkin would instantly have become a classified document subject to various controls and procedures, and possibly illegal for the former president to possess. None of that is true.

0:15:17 Thomas: Wow.

0:15:18 Andrew: So before we go any further, um, want to, I just want to reinforce, classification status is not relevant to the crimes that are listed in the search warrant, right? So this is a purely academic discussion that we're having right now, but I like purely academic discussions, that

0:15:36 Thomas: I think this is important to emphasize because I don't think I gathered this until I listened to cleanup yesterday. I'm not sure if maybe our recording was like too early in this. This hadn't been developed. But it seems as though just to reiterate, in case anyone else was like me and kind of missed this, it seems As though the way they're charging it or sorry, I shouldn't say charging the way there. They drew up the, you know, the warrant, all It didn't rely on, it only used the statutes that don't rely upon the documents being secret still or whatever classification they are. Is that correct?

0:15:43 Andrew: Is Exactly right. And we mentioned on cleanup, for example, that it did not cite 18 USC Section 1924, right, which depends upon the information being classified. It also did not cite, there was only one criminal statute that relates to the Atomic Energy Acts, and that is 42 USC 2274, communication of restricted data. Now, put put a pin in the words "restricted data," but this is the criminal offense for people who violate the Atomic Energy Acts. And again, not listed in the search warrant.

0:16:42 Thomas: But just to make clear then, that means even the nonsense excuse of, well, we have a standing policy that just whatever I, whenever the president does it, it's not against the law. Sorry, I just cracked myself up in real time. Cause that really is, you might as well say that? Oh, you don't understand, everybody. We had a standing policy that anything I do is fine. That So should clear it up. Yeah. But that excuse of like any time he took anything at home in dedicated work life, you know, because he's just he is just burning the midnight oil that Trump he's going over documents. He's got like a magnifying glass. You know, I'm just I imagine he's juste really.

0:16:51 Andrew: Right. Yeah.

0:17:16 Andrew: It's like it's like my office. Yeah, absolutely zero relevance.

0:17:20 Thomas: Butthat excuse of whenever he took it out, we had astanding policy. That has has zero relevance now, right?

0:17:27 Thomas: Even if it were true, even though it's obviously not and no one can produce that thing and obviously, but it's like, it's funny that their excuse isn't even in the ballpark of relevant.

0:17:36 Andrew: Correct. So let's look at, for example, the Espionage Act provision that is mentioned in the search warrant and that we talked about, and that I think, you know, right now forms kind of the nucleus of what you would want to charge this, the former president in the United States with. It says whoever, having unauthorized possession of, access to, or control over any document and then there's 15 different synonyms for document relating to the national defense, or information relating tothe national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any any foreign nation, willfully, and then communicates, delivers, transmits, or attempts to do so to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to perceive it.

0:18:30 Andrew: OK, that's that's the predicate offense is guilty of espionage. And Right. Subject to fine or to be in prison for more than 10 years or not more than 10 years for both. So notice that the operative phrase there is relating to the national defense. So a document relates to the National Defense, whether it's classified or not, the classification status not relevant. So all of this is really an academic question as to whether the president can declassify nuclear secrets. And let me add at the outset, because none of those things are charged, he's not charged with violating 42 USC 2274. It's not listed in the search warrant, right? Me also add that there is another sense in which this argument is trivially true, right? And that is the sense of that, as you just pointed out, as I emphasized on our bonus episode, it's clear he hasn't done this.

0:18:48 Thomas: Yeah. Yeah.

0:19:29 Andrew: Right. Like when they say, you know, well, you Know, he declassified all of the stuff that he just happened to take. Like, are procedural requirements. We mentioned those. I actually did not mention the most recent executive order, which is EO 13526. Those are the up-to-date regulations for how classified material gets declassified, right? Right. And it says information shall be declassified or downgraded by the official who authorized the original classification. If he's still serving in the same position and has the same classification authority, their successor in function. If they have the authority, a supervisory official, if they have The Authority or officials delegated declassification authority in writing by the agency head or senior agency official of the originating agency. So, look, none of that procedure specifically says, hey, Trump can just, kind you of wave his hand and declare something declassified.

0:20:31 Thomas: There's no. Yeah, I didn't hear any language of like, it's also fine as long as you all just agree that it happened verbally in some unnamed date retroactively. That's not that. So that's not in the language of the law. OK.

0:20:39 Andrew: Right, right. So if you're trying to prove if you'RE using the Atomic Energy Act to prove that the president didn't do what those regs say, right? Right. Those regulations are 10 CFR. That's the Code of Federal Regulations Part 1045. And yeah, that requires that the various levels of this, this is a subset of classification. Right. And this is that term restricted data. And I'll define what it means. But basically, atomic energy, nuclear secrets, have their own set of classifications, and you they're broken up into what the Department of Energy calls categories, and the decision to move things among the categories is handled procedurally in a different way than declassifying just garden variety classified information.

0:21:39 Andrew: It's handled by either a joint agreement between the Department of Energy and the Department of Defense or a joint disagreement between the Department of Energy and the Director of National Intelligence. But the importance of all of that is it's all executive branch agencies that are making all of those decisions. And so the question comes, what happens if the president takes a confidential document into a meeting with a foreign national, right, and as they are walking into the meeting, uh, the White House council says, uh, Mr. President, that's a classified document, it says no foreign on It

0:22:20 Thomas: Oh, I thought you were going to do the like they turn the corner, they bump into each other. The folder flies all the documents. Oh, you got I got my documents. You got your documents kind of thing, like with the foreign official.

0:22:23 Andrew: Where do they bury the survivors Diversia. No, I was going to say, what happens if the president short circuits the procedures? Right. And the answer with declassification of documents is I can't say the president does this all the time. The president does this a lot, right. And in kind of the scenario that I've described, right, like you are, you have a sensitive meeting with Angela Merkel and you want to show her a document, document, and the document says no foreign on the top. Well, you know, all right, the president is just like, all right, I hereby declassify this document for the purposes of doing X, right? That's not a crime. That's yeah, exactly, the

0:22:35 Thomas: Ah, yeah. And you're

0:23:06 Andrew: President can do that, that's

0:23:06 Thomas: Saying that could even be by just like implication, like if you just did it, you'd just be like, or is it just a matter of like, well, we're not going to charge that. That's silly. That.

0:23:14 Andrew: Exactly there's zero cases about implication, and the reason is, uh, the the case that I relied on in that episode, Department of the Navy versus Egan. That was that 1988 case that says that the president is the commander in chief and all decisions bearing on national security, and to determine whether an individual is sufficiently trustworthy to have access to such information, rest in the discretion flow from the constitutional investment of power in the president and quite apart from any explicit congressional grant. OK, that's really, really strong language that

0:23:14 Thomas: Yeah. Yeah, that's

0:23:49 Andrew: Says classified information is the kind of thing that is left to the discretion of the president under Article Two, and for which separation of powers would say Congress can't pass laws that would constrain the president's ability to do that. And I'm going to get into the specific application of that in a minute. We do not have examples of presidents just kind of willy-nilly taking that are nuclear secrets and pushing them down the line. But that's because we haven't had a president who Was a Russian asset before, right? Like, so it is under the Atomic Energy Act. Restricted data is defined as all data concerning design, manufacturer, utilization of atomic weapons, love that archaic language, production of special nuclear material and/or use of special nuclear material in the production of energy. So that's RD, it's defined that way. It can become FRD, formerly restricted data, that's still classified, classified information, but it has been removed from the RD category after the joint meeting between the DOE and the DOD.

And by the way, if they disagree, the president gets to cast the tie-breaking vote, right? So again, at every level here, you see a ton of discretion invested in the president. And they must determine that that information relates to the military use of atomic weapons and can be adequately safeguarded through the ordinary national security information process.

0:24:05 Thomas: Pretty persuasive to me.

0:24:22 Thomas: Yeah yeah.

0:25:19 Andrew: The step down from FRD is trans-classified foreign nuclear information, gets removed from the RD category after a joint determination from the DOE and the Director of National Intelligence that it concerns the atomic energy programs of other nations and can be protected like national security information. So that's how the atomic energy process works. Yes, it requires all of this procedural stuff that obviously didn't happen here, but the question is, what, what would happen if the president declassified nuclear secrets without going through the process? Would that be a crime, as the Atlantic suggests? Would that be impossible? Could you get a court judgment? And, and again, I go back to the Egan case, right, the the Egan case, I read you the justification, right?

0:26:06 Andrew: This is a core Article 2 power over national security information, and it's independent of any grant from Congress. That case was about giving someone a security clearance, right, a guy named Tom Egan. And the question was, and so he had prior problems with alcohol, he had two gun convictions, assault convictions, and that he listed on his application, but left off two other ones. And was like, well, I didn't think I needed to do that. Like and so he was hired as a civilian contractor to the Navy to to work on repairing trident submarines. And so during the interim period, like he was not allowed access to the submarines. Then all of a sudden, you know, the Navy was like Like, yeah, upon review of your file, we are not giving you a security clearance.

0:26:51 Andrew: So we're going to fire you because, you know, you can't be on board the thing we hired you to fix. Now, if you are a member of the civil service generally, right, if you are a civilian contractor to the U.S. government, you have the right to appeal to the Merit Systems Protection Board, right? Right, which is an independent board that reviews your termination and says the government agency may only fire you only for such cause as will promote the efficiency of the service, end of quote. In other words, right, you have to be fired because you suck at your job, not for other reasons, right? And the question in this case was, could, did the Merit Systems Protection Board have the authority to look at this case at all?

0:27:37 Andrew: And the Supreme Court said no, notwithstanding the fact that this was a law created by Congress, right? That the determination of the classification of nuclear, sorry, that the determination of the classification of information rests entirely in the executive branch, right, right. So I'll break down some of the detailed discussion. For reasons too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the executive agency responsible, and this must include the broad discussion to determine who may have access to it. As noted above, this must be a judgment call. The court has recognized the generally accepted view that foreign policy was the province and responsibility of the Executive. As to these areas of Article II duties, the courts have traditionally shown the utmost deference to presidential responsibilities.

0:28:27 Andrew: Responsibilities. So, yeah, notwithstanding the fact that Congress created this general law that says you have the right to an appeal to the Merit Systems Protection Board if you get fired, if you get fired because you can't have clearance, you don't get that, because we don't want anybody, even a congressionally authorized separate agency, to then second guess how, the, here in this case, the, the Navy made their classification decisions, and we don't want to second guess that because that power flows from the president. So, I, to me, that's as much of a, like, that's his case closed as you get, uh.

0:29:03 Thomas: Yeah.

0:29:03 Andrew: And, and I think if a president were charged, I think one of the reasons that it's not listed, uh, 42 USC 2274, I think, of a president we're charged with violating that, that he would have a very good argument that he's immune from prosecution under that statute, in the same, same way that we talked about, that he would have a very good argument, uh, that the provision of 1924 that says you can't run for office again doesn't apply to him, which, you know, we went through. So that's the last I'm gonna say on the, you want to take a different view, feel free to take a difference, for you, it obviously. Has never been litigated before, yeah.

0:29:37 Thomas: Well, hold on, though, Andrew. I read this Atlantic article, though. That disagrees with you. So could you address that? No, that's we'll consider that case closed on that for now, unless less some something develops. So then we really shouldn't worry about that component of this, especially because it looks like they're not going to pursue that for exactly probably this reason, right? They're not gonna worry about that. It's just all the other stuff like, you know, having documents related to defense in a very precarious, unsafe place and all that stuff. So, yeah.

0:29:42 Andrew: Thanks all case closed yep yeah It's a much better, like, our system is way better than that. It says, we don't care what label got stuck on this, if you have things that could benefit our geostrategic enemies, that's espionage, and that's a mucho better system, we don' have to figure this out. Uh, but it, does, you know, gnaw at me to see, uh, what I think of as a pretty major misconception, conception, in print, and I, uh, wanted to address it.

0:30:41 Thomas: Combines in-depth interviews with some of the world's most fascinating minds, Feedback Friday episodes to respond to listener questions about everything from conventional conundrums, like asking for a raise at work, to doozies like helping a family member escape a cult, still have to recommend his recent episode with Dallas Taylor, of one of my favorite podcasts, 20,000 Hertz, I am biased because I am an audio person. So that's what I like. That's what I'm going to recommend. Check that one out.

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0:34:52 Thomas: Now on to the breaking news on Weisselberg. We haven't talked as much on this but and I feel like this has been more of a cleanup topic. And it seems as though and slash a Twitter topic, by the way, if you follow OpenArgs on Twitter, it seems like this was kind of a disappointing thing to you or something was was amiss here. Why don't you clarify what happened with Alan Weisselberg.

0:35:13 Andrew: This is a massive miss for me. This is the Manhattan District Attorney's investigation into Trump, the Trump Org. You might recall we we talked about it on this show at the end of the year 2021, uh, because sy Cy Vance was leaving on January 1st, 2022, which he did, and he was supposed to make a decision up or down before leaving. That didn't happen. It got passed on to his successor, Alvin Bragg. And we went through all the reasons why a Democratic prosecutor would probably want the opportunity to, you bring a case against Donald Trump. And then there were rumors that this was sort of being left for dead. And in my view, this deal absolutely 100 percent confirms that that Alvin Bragg is one of Lawrence Lessig's chicken shit prosecutors.

0:35:16 Thomas: Yeah,

0:36:04 Andrew: And and here's why. Alan Weisselberg is the CFO of the Trump organization. He is the guy who literally knows where the bodies are buried. He has signed off on or, you countersigned opposite that stupid Trump signature with his Sharpie on every major fraudulent decision that Donald Trump made pre presidency. Right. So that included the like crazy deal in Florida where he had Mar-a-Lago buy a picture of himself to satisfy an outstanding deal with the local officials in Palm Springs. I mean, it's just like nonsense. Right. This guy has been a close Trump confidant. And that means willing to lie to protect Donald Trump for as long as Donald Trump has been around.

0:36:54 Andrew: So right? And he's 75. And the idea was to squeeze him. Right. Let's see if a flip. And so Vance, again, somebody who's subject to a significant amount of criticism on the left as as being not particularly diligent in going after folks like Trump, up, Vance set up a pretty good set of 15 counts against Weisselberg, right, uh, that are knock down charges for tax evasion, right. And they extended, you remember when this came out, it extends to, right, Weiscelberg got a rent-free Manhattan apartment, never declared and paid taxes on that. He got his kids and his grandkids into private schools, all totaled, it amounted to avoiding $1.87 million in taxes.

0:37:44 Andrew: Right. So the benefits were way larger than that. And the idea was, OK, so you've been super loyal to Trump, but this is going to be 15 years in jail, man. And maybe you'd like to flip right now. And then things went silent. And then the deal, and I have read the plea agreement, the right plea agreement, uh, involves pleading guilty to those 15 charges in exchange for five months in prison, with time served, uh, news outlets are reporting that as 100 days, and uh, Rikers Island, so I had, at least I had said previously, I think, you know, country club prison, Rikers is not a country club. So So fair enough. He does have to go to Rikers for three months and a week. The biggest thing is it does not contain a cooperation agreement as part of the plea deal. In other words, he does not have to and will

0:37:59 Thomas: He's not

0:38:36 Andrew: Not cooperate With the prosecutors. What it requires him to do is testify at the October 24th trial against the Trump Work. And some folks, including folks I really, really respect, right, Andrew Weissman, uh, you know, former chief counsel over at the FBI, super smart guy, on our side, I respect him, I think he is reading, I think he's looking for a reason to read this optimistically, um, and I'll give you what I think is the best uh steel botting of his position in a minute, but but I want to get out the negatron first, right, and that is requiring somebody to testify who is a serial liar is almost no requirement at all right and so folks have, well, you know, you could try

0:38:36 Thomas: Flipping, right?

0:39:23 Andrew: Him for perjury, and it's like, this DA didn't want to try him four fifteen knock down super easy, anybody you could could try this case, Thomas, uh.

0:39:34 Thomas: Oh, I can? Awesome.

0:39:35 Andrew: I wish you would right, if you weren't going to take him to

0:39:36 Thomas: I'll get on it. Briefcase spills open, jelly beans fall out.

0:39:39 Andrew: Right, yeah, but if you were gonna take Weisselberg to trial over 15 heavily documented tax fraud crimes, you're not gonna take him to trial for perjury, right? This is a guy who's been lying for 75 years, he knows how to couch the lie, right, like he's just gonna say, they're gonna say, like, you know, if they ask him any Trump questions at all, which by the way they may not, right, like this is a trial solely of the Trump Org, and the highest ranking non-Trump member, the highest ranking day-to-day person at Trump Org is Alan Weisselberg, right? So you know what he'll testify is, yes, I, uh, at the Trump Organization, uh, conspired with the Trump Organisation to make make sure that I got an apartment rent free. Did anybody else assist you in that? Well, not really that I can recall. What about Donald Trump? No, I don't think he.

0:40:12 Thomas: Yeah.

0:40:30 Thomas: Dude doesn't even know what goes on here.

0:40:32 Andrew: Yeah, he's he's kind of checked out. I mean, I feel bad about that. Like, how the hell are you going to prove? Yeah, I mean. I don't know. Was I think he knew later on that that maybe I had my hands in the cookie jar. But but and I think that probably disappointed him. And I'm ashamed of that. But he probably let it go in light of my years of service. I'm making that the top off of my head. The Right. Excuses you can give for giving a dishonest answer when you're not backstopped by a cooperation agreement are almost infinite. And it is virtually impossible to prove that that's perjury. How are you going to prove that Alan Weisselberg didn't think that Donald Trump was disappointed in him or didn't? Oh, yeah. You show me. OK, you're right. I hadn't recalled that when you asked me that question the first time around. You're right, OK.

0:40:32 Thomas: Yeah in all of this, we've talked about perjury a lot and it just seems like it's kind of a zero every time. Like it's just, oh,

0:41:21 Andrew: That's right. Yeah. Look, that's what I've been saying to people on Twitter is, OK, show me perjury prosecutions. Show me perjorate convictions. You know, from the past 10 years, you can't find them. Right. Right. But what you find, not

0:41:38 Thomas: I was just going to ask you in all All of this Trump stuff and everything, January 6th even, off the top of your head, has anyone been successfully charged and found guilty of perjury in this?

0:41:48 Andrew: That I know of.

0:41:49 Thomas: In all of that, of all the liars and all the everything, that's a pretty convincing argument to me.

0:41:49 Andrew: Because, yeah, yeah. And on and the other hand, when you put cooperation in the agreement, that's super easy to have, right? Like, because that's at the subjective control of the Department of Justice, and they just have to say, "Oh, yeah, this guy's been cooperating," versus, "Oh, yeah, no, this guy, the second he signed that deal, stopped cooperating with us and, you fed us misinformation, and so we're blowing up his deal," right? And you see that happen all the time, that's what happened with Paul Manafort, right? Remember, like, way back.

0:42:24 Thomas: Yeah?

0:42:24 Andrew: At the beginning, you know, people thought, "Oh, yeah, Paul Manaford signed a deal." Well, the reason they took him to trial was because his deal required cooperation, he obviously didn't cooperate, and they're like, "Well, congratulations, you've lost your deal." Right. And to me, omitting a cooperation agreement is such a red flag that, you anything else to the contrary, it just pales by comparison. Now, Weissman's argument, and I know Andrew Weissmann, Alan Weisselberg, we got to keep it. Weissman's argument is that it is significant that the plea agreement does not contain a complete coverage charge. Okay.

0:42:53 Thomas: Yeah.

0:43:02 Thomas: By the way, before we go into this, can I just make sure, we didn't really frame the basics of this argument. Is the very broad strokes you're, you know, you're saying this sucks and someone else is the dog in the room on fire saying this is fine? Is that kind of what the argument is?

0:43:15 Andrew: No, it's than that, has right? Said this is bad for Trump. And this means that Weisselberg is going to go and testify about all the crimes that the Trump org committed and will testify truthfully. And it will be virtually impossible for him to give testimony that does not also implicate Donald Trump. That is, I watched him on MSNBC.

0:43:38 Thomas: So someone is out optimist priming you. You're the negatron here.

0:43:40 Andrew: Yeah. Yes. Yes, that's right. I am the negatron in this.

0:43:43 Thomas: I think it's important note to that that's not just an act like this is, you Know, yeah, you are like you genuinely you go where you think the evidence is and this is your negatronic this one.

0:43:47 Andrew: Yeah, yes, that Is right. And I will tell you, Weissman's piece of evidence, and it must be credited as a ledger on his side, is that the deal does not contain a complete coverage clause.

Now, you see that a lot, where right, when you agree to a plea deal, it says the government agrees not to prosecute you for the crimes listed, you know, the 15 crimes to which you're pleading, and also, you know, any related crime, you know, blah, blah, blah, would give you some protection against being reindicted for a similar, a related offense that is not covered by the deal. He's right that it doesn't have that in there.

He's right that the lawyers for Weisselberg would have asked for that. My explanation is really, really simple. That that that was the, you know, Saul Goodman step too far, right, like, I don't want to give spoilers for the, for the finale of of a Better Call Saul, but you know, you've seen it, you'll get the reference, um, that you and, know, Alvin Bragg said, "No, man, you're, we're not giving us cooperation, we're not going to give you complete coverage, that's it, take it or leave it," and they went back and were like, uh, three months and a week. Yeah, we'll take it. My right argument here is, if there was absolutely any reason that you had any desire to go after Donald Trump, you would take Weisselberg to court rather than settle for five months. Right. You have 15 well-documented, absolute knockdown charges that that that show tax evasion and fraud.

0:45:30 Andrew: And, you know, you have the potential to get a guy for 15 years. Fine. You hit on you a couple and you get three years. That is way better. You lose, like, it's it's almost the same as this, right, because he's at least got to be, you know, he's got to stay in trial.

I was vert, there was no visible upside other than, in my view, the DA's office says, "Okay, well, if we're not going after Trump anymore, then, because this guy's not going to flip, then why am I gonna, why am I going to squeeze and go to a trial and like put my time and effort into to securing a conviction of a guy who's 75, uh, and we know what happened here, right, like, that he's, you, the the instrumentality by which Trump, Trump Org, ran fraudulently, ran the" Trump Org. And, you know, if you're not interested in going after the king, what do you care about this guy?

That that's my view of it, I could be wrong, I would like to be wrong, I would like this to be some kind of, you know, crazy triple Xanatos gambit, what, it doesn't seem the most parsimonious explanation to me, seems to be there's no appetite at the Manhattan DA for taking on Trump in connection with real estate, and some of that may be, yeah, well, let's let Fanny Willis in in Georgia, you indict Trump on those state crimes, let's let Merrick Garland indict him on federal crimes. This isn't the best case. I don't know.

0:46:53 Andrew: Right there.

0:46:53 Thomas: Well, is this still the same office where the two guys like resigned and were like, this thing sucks? Yeah.

0:46:58 Andrew: Yes, that's exactly right.

0:47:00 Thomas: So it sounds like this thing sucks.

0:47:00 Andrew: Yeah, it Feels like, and again, remember, the case is against the Trump org in connection with real estate fraud. Now, that parallel case, the civil investigation, right, we know is being pursued diligently. But at the end of the day, right, there are only civil consequences. There are only damages that that are going to be extracted in that case. Could you somebody from the Trump or they could, but I don't think that's going to happen. I think you're going to get an adjudication. You're going going to get a fine against the Trump org, maybe it will be dissolved, who the hell cares, it's a family held LLC, this is not like dissolving the National Rifle Association, right, like Eric Trump and Ivanka can start, the the EI Trump, or, you know, who cares, um, I do not see justice for the former president of the United States coming out of these developments. And I'm pretty negatrony on it.

0:47:36 Thomas: Yeah.

0:47:53 Thomas: Is it just that Weisselburg? You know, he's a million years old, has made his millions from this scam, doesn't particularly want to turn on Trump, and the consequences for what he's done aren't bad enough to force him to do that? Is that what's going on?

0:48:09 Andrew: If, and this is 100 percent speculation, and I am not a criminal lawyer, so, you place this in the asterisky of asterisky categories, I suspect that Weisselberg looked at Alvin Bragg, Manhattan D.A. Alvin Bragg, in, said, "I really don't want to do 15 years in jail, but I'm going to do 15 years in jail before I would flip on Donald Trump." You you do with that what you will, that's what I believe he said. I think that would be consistent with the kind of game of chicken we've had for the past six months, uh, with the unbelievable sweetheart deal that's come out of it, and I think it explains the lack of cooperation, right? If if a witness has told you I'm going to lie to you, then you don't want their cooperation, and I I think think that explains all of it, um, but right.

0:49:00 Andrew: You, I am open to other interpretations, but so far I have not heard a better, more plausible explanation than that. Know. No.

0:49:06 Thomas: Yeah. Darn. That doesn't sound great.

0:49:08 Andrew: It's not great. I look, lots of great news in this episode, so you know, that that's a not great, but I feel like we need to be honest about it

0:49:13 Thomas: Yeah. Will we ever know? I know we got a lot of other stuff to talk about still, and the episode is growing long in the tooth, but will we ever know what happened here? I mean, with that whole prosecutors resigning and all that stuff, I mean, will we ever know for sure? Because it's kind of like if you don't prosecute, then you don't really unless you're, unless Hillary is the person in question, you DON'T do a press conference telling everybody why you didn't prosecute.

0:49:36 Andrew: Yeah. Prosecutorial discretion covers a lot of sins. I I don't know that we will ever know. And, you know, it falls into that bucket. You know, we talked about the inverse of the Nixon question. I get the feeling, and I think it is a justified feeling, that that a lot people, particularly a lot a people, you now, in their 30s and younger, have of, "Oh, it doesn't matter political party. It doesn't matter offense." You know, rich, powerful, white, politically connected folks never ever pay the the price, are never held accountable. Um, don't think that's true, but I get why you feel that way, and and this certainly doesn't help in my view.

0:50:17 Thomas: Yeah, I guess maybe technically not never, but feels it like close to that.

0:50:20 Andrew: I I get that feeling, I do, I really do.

0:50:23 Thomas: Let's talk about the passport thing. This was a quick thing. It was a tweet that was so weird that I thought it might be fake, or not a tweet, a truth, you know, know. Um, but they seized Trump's passports, and everyone made a big deal about, like, oh, that's a big deal, I don't want him to be able to flee. I don't think we have time to talk about the, like, you know, the fact that he had two or three of them. I don't think that turns out, yeah, that's pretty normal, doesn't matter, is the answer to that, but but now we've heard they've returned his passport, so what would that have all been about? We

0:50:51 Andrew: It's so, yeah, the the The Trump Truth, I don't know what the verb is for his little nonsense platform, was, in the raid of the FBI of Mar-a-Lago, "They stole my three passports along with everything else. This is an assault on a political opponent at a level never before seen in our country. Third world," which, way to you get in a little, like, you know, racist remark at the end as well. I love that. Um, and uh, then the as it completely turns out, um, the uh, Jay Bratt.

0:51:20 Thomas: See. Another truth, that's like, oh, never mind, they're in this box of nuclear secrets I accidentally left them there, that they took so

0:51:20 Andrew: Yeah. Yeah. I I this happens all the time, right? When law enforcement executes a search warrant, this is why, right, they give you the receipt of the stuff they've taken as they're taking it out. But then they're going through in detail and they're like, "Oh, man, yeah, OK, maybe we shouldn't have taken that." Right. And they higher likelihood if you are a rich white defendant, they'll return the stuff that they shouldn't have taken to you, right? And so this, because of the nuclear secrets that were present, the execution of the search warrant was attended by Jay Bratt, who was the chief of the Counterintelligence an Expert Control Section at the National Security Division, right, an email and said, with the subject line passports, and, right, says, "Oh, hey, we are returning them. They will be ready for pickup at 2 p.m. today."

0:52:17 Andrew: It was an absolute nothing. So nothing on both sides. Like, you those of us on the left were like, hey if they if they've seized his passports, that means he's a flight risk. And, you know, and then on the

0:52:16 Thomas: That's an all big nothing, yeah.

0:52:26 Thomas: That would have been nice if it was that reason and that serious, but no, alas, uh

0:52:29 Andrew: Right. Yeah. Usually, I mean, the key hint on that is usually you would have a separate court order that orders the seizure of passports, right, that should have been the clue to those of us who were excited about it on Monday, that that maybe this was not a court order, or maybe this was a mistake, but you also the, this is the worst, they're planting evidence which I want back, and right, Trump, yeah, has his passports back, he has confirmed that he's gotten them back, and uh, this was never a story, don't let Uncle Frank tell you it was, yeah.

0:52:41 Thomas: Well Final bullet point, Liz Cheney. This is, I don't know how to feel about this. I mean, I guess bad. She lost her primary by a lot because she went up against Trump. And I don't really think that's good that she lost, you

0:53:20 Andrew: I I agree with that. I I have said, uh, you know, I think that this represented actual political courage, and, you know, folks have sometimes pushed back on that. Um, I think that the significant thing here is that the number, right, she lost by 30 points to an idiot, it, after winning with 75 percent of the vote, you two years ago, right, and uh, you know, Liz Cheney herself released a statement, she was like, "I won with 73 last time, I could have won with 73 this time, all I had to do," all I would have had to have done is what Kevin McCarthy did, right? Not not even come out and be, you know, she didn't say come out in b you know, a Lauren and Boebert, Marjorie Taylor. No, no, no. But all I would have had to have done is not confronted the president of the United States, the former president of United States, on the fact that he's lying about the election. And if I hadn't done that, I would've coasted to reelection. She's 100% right.

0:53:37 Thomas: Yeah. Yep. Yeah.

0:54:18 Andrew: So whatever you think that was a real political cost, we've gotten a couple couple questions as a result of her loss that I want to cover. Number one, she remains a member of Congress until January 2nd, 2023. So she will not depart from the January 6th committee. She will not deport from the Congress. She's got work to do. And assuming that Republicans do not take the House, if they do, they will disband the January six committee, right? They will begin investigations into impeaching Merrick Garland and Joe Biden, and it will be a nightmare. So if, you know, again, you're not fully sold on, you know, your local Democratic House candidate, that's what's coming if you decide to vote for the Green Party candidate in your district or stay home.

0:55:03 Andrew: Get out there and vote for your Democratic representative because the numbers are real bad right now. We're hoping to turn them around. But if the Democrats lose the House, Republicans will disband the 1-6 committee and begin sham investigations and Impeachment. Impeachment, um, if that does not happen, if we somehow manage to hold on to the House, then the January 6th committee can hire Liz Cheney as counsel. She's a lawyer, so absolutely, I hope they do that, um, and uh, you know, we have seen uh some of the video testimony of some of the lawyers working for the one six committee, so um, yeah, I just wanted to uh answer kind kind of that that question. The two questions I got were, does this derail the the January 6th committee? No, it does not. And can she still be involved? Yes, she still can. So there you go.

0:55:15 Thomas: Yeah, That's interesting. All right, well, mixed bag. Some good, some bad. But overall, excited to keep Keep on paying attention to the story and keep getting the good OA breakdowns.

0:56:00 Andrew: Indeed, hey.

0:56:06 Thomas: And we don't really have time for a wildcard, Andrew, but we love our audience so much. We'll do a wild card anyway. Wild card! Woo! So, Alex Jones, what is our quick wild card update on that lizard person?

0:56:01 Clip: WOAH-

0:56:14 Andrew: Whoo. Yep. Alex Jones jury selection continues today as we are recording, which means that the the docket has been restricted. So fortunately, the dozen pleadings that I pulled down last night, I was able to get my hands on. And I want to update you in this way. So the judge, no nonsense, is not monkeying around, not going to move the trial date. The case has been remanded back from bankruptcy court. I had an entire long discussion on core versus non-core and remand. And, you know, well, if you get the show notes, you can read all about that, but but here's what you need to know. The bankruptcy ploy to stall this case failed. The court is having parallel proceedings of potential disciplinary proceedings against two of Alex Jones's lawyers, Norm Pettis, who is an InfoWars, a regular InfoWars contributor, and a psychopath.

0:56:21 Thomas: Oh,

0:57:18 Andrew: Psychopath, um, and McMollet, the lawyer from the Texas case, Andino Reynal, right, and this is in connection with the bombshell moment in Texas where uh plaintiff's counsel counsel revealed that they had given him, yeah, two and a half years worth of Alex's phone.

0:57:32 Thomas: Oh, yeah. I remember that. It's only featured on our show a lot and was a segment bumper and all that, yeah.

0:57:38 Andrew: Yep. Yeah, it was fantastic. And the court, the Connecticut court, was rightfully troubled that the one thing that plaintiff's counsel deleted as soon as they saw it were in-depth medical psychological evaluations of the plaintiffs, the Sandy Hook plaintiffs in Connecticut. Which, in addition to being gross and illegal, like to share them is a violation of HIPAA laws. Plus, you know, God knows what else. So the court, the second they found out about it, Judge Judge Bellis, she entered two orders requiring that Norm Pettis and Andino Reynald show cause as to why they should not be referred to disciplinary authorities or sanctioned by the court directly in connection with the purported release of medical records by the plaintiffs. Norm Pettis moved to dismiss, which is kind of a weird thing, I don't think that's the proper motion, but uh moved to dismissed that show cause order and also uh filed a motion to require Judge Bellis to recuse herself because, you know, she's such a meanie pants, um, yesterday the court issued orders with respect to both of those, uh, which I

0:57:56 Thomas: Let

0:58:46 Andrew: Have in my notes as yes, I have them in my notes as lol, so yeah, basically the same thing, uh, said uh Yeah Uh, that uh the the first part was, you can't sanction us for stuff you don't see. I am not kidding, that was their argument, like the kind of Jurassic Park T-Rex theory of, like, if we don't, if we don't do the crime in front of you, judge, you can't sanction us.

0:58:47 Thomas: Me guess are they, nah Yeah Lol, no Yeah, like Like As in the having the medical records, or the what's the thing Wait

0:59:12 Andrew: Yeah Like They Have to actually pass it in the court, who knows, right? Like, you have to, you have to catch them, uh, and the court was like, what are talking about, like, the, I know that you're taking the phrase like uh that it sanctions conduct occurring, you in the courthouse, right? But that means in the case, right? Like, that that absolutely can occur when you email stuff at night that you're not supposed supposed to have, um, the the delightful part of that, and, and uh, I have tweeted it out, we will link it in the show notes, uh, is the exhibit A to that motion to dismiss uh contains a lengthy affidavit uh from uh Kyung S Lee, who is Alex Jones's uh counsel in the bankruptcy proceeding, describes, he's the reason he's, the he's the first domino in the comedy of errors that resulted in that hard drive, which it was a white separate hard drive, and so, so,

1:00:13 Thomas: Sorry, what heart, I thought it was a phone.

1:00:15 Andrew: The phone was downloaded to a hard drive, right, because Again, 300 gigs worth of stuff. So, so Norm Patters has a white hard drive, external hard drive, and and Lee, the bankruptcy attorney, sends an email to Norm Pattis that says, hey, man, I'm trying up to, deal with this bankruptcy. Any evidence that you can give me that will help me understand this case would be really, really helpful. And Norm Pattис is like, sure, boy, do I have evidence for you, and sends off the entire hard drive. While the hard drive is in transit, the plaintiffs drop their case against the first set of InfoWars debtors that declare bankruptcy to, because remember, it was a stunt. So they had these like minor companies that were named as part of the complaint, go to bankruptcy.

1:00:18 Thomas: Gotcha.

1:01:03 Andrew: And so then the plaintiffs were like, OK, great, well, we don't have any claims against, you these tiny companies that are now in bankruptcy, so uh we're done here, and and so then as a result of that, Kim says, so I never looked at the drive, and then eventually I went down to Texas and I handed it over to Reynald, and I know that I handed het over to Renald prior to June 15th because on June 15th Norm Pattis emailed me and said, hey man, can I get that drive back, and I said, oh yeah, I'm sorry, I gave it to the mullet dude down in Texas, um, so that's the beginning of the comedy of errors of uh Alex Jones's lawyers, not anybody, not Norm Pattis didn't bother looking at this thing, um, and maybe you should before he starts sending it all around, so important part is yeah those sanctions proceedings will continue continue, uh, they will be parallel next Thursday and Friday because of course they will be, because the court does not want us to be able to cover it on opening arguments but um it does not look good if you, if you want to know, uh, our uh our Pattis and Reynald, uh, facing you a 20 piece bucket of trouble, like uh they they

1:01:52 Thomas: Mistakes were made, yeah

1:02:19 Andrew: Appear to be, nope

1:02:19 Thomas: Well And Yeah And just to clarify, they're they're not in trouble for just being really shitty lawyers, for Alex Jones, that apparently is fine, you can be as bad as you want, it's just the the sensitive materials that they, okay, gotcha

1:02:25 Andrew: Nope. Yeah. Yeah, it's the transmitting medical information because you're an officer of the court. That's not a thing you should be doing as a lawyer.

1:02:34 Thomas: All right Yeah All right. Well, a little wild card for you on Alex Jones. And I can't wait for the next case. It's to be so fun. Lots of good news these days. And even more on Tuesday.

1:02:48 Andrew: Indeed.

1:02:50 Clip: And thank you, Let's go!

1:02:52 Thomas: And now it's time to thank our new patrons at patreon.com/law and join all the goodies, ad-free episodes, the early shows, the Q&A, the Law'd Awful Movies that should be coming at you real soon. Lots of stuff. Andrew, why don't you start us off.

1:03:05 Andrew: Big thank you to Tyrrell Prosser, Lara Morneau, Melanie, Eliot Nest, Molly S Kirsch, Patrick, Geoffrey Waldmiller, Lachlan Donald, Jeanenne Morphis, Pew pew pew. Finger guns are my second amendment right they sure are tell a 3L how to find a job in government nine to five um yeah that's that's great question uh show up at one of our uh q and a's because I could talk about that SG, briefly, Briefly Amici Ujiorum, hope I've said that correctly, I have no idea what that last Latin word means, so Philip, Xenxabar, Andrea Levine, Caleb Benningfield, Danny Cavalier, Netero H, Brie Coger, FlagrantSystemError, I want to see Andrew play Phoenix Wright Ace Attorney, yeah, I'll give that a shot, Lenior Simmons, and Samuel Sachs thank you you all so much. Take it away, Thomas.

1:03:20 Thomas: And Thank you to Lucien Blakemore, Josh Payne, I took legal advice from a podcast and all I got were these shiny silver bracelets, Rich fancy-man Lord Willford Snibble-Snabble of the Gribble-Pibble, Chee wizzle, Justin Bruchey, Isaak, James Martin, Pulver, Sarah Wolf, Greetings from a former Towsonite, David Wintz, literally literally, Kaitlin Carleton, Travis J Payson, Andrew Dodd, Arianna Meeres, Patti B, Lisa Richter, I Argued With Bub In AP Gov Prior To His Progressive Awakening, that's absolutely true.

1:04:37 Thomas: I recognize the patron. You for becoming a patron. Nice to see your name reflected there. And yeah, that's totally true. The worst, most awful conservative in high school, as I've said many a time. Reina, Matt Jenkins, and Jamie L Frederick. Thank You So Much, New Patrons.

1:04:37 Andrew: Oh, wow.

1:04:54 Andrew: Woo.

1:04:56 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:05:03 Thomas: And now it's time for T3BE. Thomas gets totally tricked by a trick question. That was fun last week. Boy, that really got me.

1:05:11 Andrew: Sorry.

1:05:11 Thomas: Nice prank, Andrew. But let's see if there's a not prank question this time, or maybe it will be.

1:05:14 Andrew: Yeah. Let's see how you feel about this question, Thomas. A man was was taking to a police station for questioning after his girlfriend disappeared. The man was not given Miranda warnings. After a few minutes of questioning by a police officer, the man confessed to murdering his his girlfriend, and told the police officer that he threw the gun that he used to shoot his girlfriend in a swamp, which was then located several miles from the city. After an intensive search of the swamp over a period of several weeks, the police found the gun. The man is charged with first-degree murder. The prosecutor plans to use the gun as evidence against the man at trial.

1:05:53 Thomas: Fruits of the poisonous tree, perhaps.

1:05:54 Andrew: The Man argues that the gun should be suppressed at trial will he prevail. A. Yes, Yes, because the man was not given Miranda warnings. B, yes, because the interrogation violated the man's due process rights. C, no, because the exclusionary rule will not serve to exclude the gun from evidence. Or D, no pursuant to the inevitable discovery exception to the exclusionary.

1:06:12 Thomas: Yeah, we were inevitably going to find this gun in this swamp. Is a tough one. So So I think there's a little bit of blurry whatever in the, like, police just asking questions. Hey, man, I'm just asking you a I'm but like into the police station feels like enough to where you would need to Mirandize him. Hmm, a few minutes of questioning. As all these questions are, it feels pretty close to me. Like, I'm pretty sure if a police officer is just on the street, you know, for whatever reason, and sees you or like you're on the scene and the officer is like, hey, yeah, what do you know about this? What's going on? And then you're like, I did it. I killed Ned Johnson. I don't think they needed to Mirandize you for that. I think there's some blurry gray area. And that's why the like, am I under arrest is actually a valid question, I think, because you need to clarify all that, Ithink, is This feels taken here's my problem.

1:07:12 Thomas: I think in terms of what's fair, if you are taken to a police nation and questioned, you should be Mirandized. But like in terms of this Supreme Court has said, or even like a Supreme Court going back a few decades of just being really pro- police. I worry, but I think I'm going to go with with what feels right. It feels like you needed to be Mirandized here. Okay. So confession Miranda warning should go away. Told them where the gun was. Now, is that the fruit of the poisonous? Whatever. Is that the, you know, so he told him where the thing is searched in the swamp after intensive search. They found the gun. This is really tough. Okay, does the Miranda Miranda warning, cancel all that out. They never would have known about the gun and all that. Or is it just going to be that you can't get his confession into the trial, but you still get the gun in there, even though it's going to be like, well, how did you find it?

1:08:03 Thomas: I can't say. I don't know. Will the gun be suppressed? A, yes, because the man was not given Miranda warnings. That's certainly plausible. B, yes. Because the interrogation violated the man's due process rights. That's an interesting one, because it's sort of like the same answer, but without Miranda. I think I like A over B if I'm doing a yes. I think Miranda's the issue. I'm not sure what other thing in the interrogation violated due process, really. If not, it's just Miranda, I think. So I'm going to go A over A, but let's check the no answers. See, no, because the exclusionary rule will not serve to exclude the gun from evidence. So that's a solid one. I can't remember if that's the right wording because I'm not a lawyer, but that would be along the lines of like, yeah, okay, we don't let the confession in, but like, come on, we found the gun kind of thing.

1:08:57 Thomas: We're not going to just like not have the murder weapon. Or D, no, pursuant to the inevitable discovery exception to the exclusionary rule. That feels not right. So that feels like they were going, I think this has come up. It's like, okay. We're going to find this anyway. Way. It was in a place, you know, we would have discovered anyway. Being in a swamp after an intensive search that took several weeks, there's no way it's D. So I think it's solidly between A or C. And I think I'm going to go with what's fair and not with what the court has done. I think the court is going eroded this right that a criminal defendant has. And so it could be C. It could could really be C. But I'm going to go with A on the logic that this is something you have to do because otherwise you're encouraging people to violate, you're engaging police to violate Miranda rights.

1:09:47 Thomas: If all that happens is, okay, well, all right, we can't bring in his confession, but we found the murder weapon. We got all this other stuff by violating his rights. That would encourage police to be a badly. So I'm gonna go, I'm gong be very hopeful. I'm to be an optimist prime and say A, even though it's between A and C and it might really be B. So A, final answer.

1:10:04 Andrew: All right. And if you want to play along with Optimist Prime here, you know how to do that. Just share 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 fame fortune fame and fortune not guaranteed and

1:10:19 Thomas: And that's our show. Thanks so much for listening. And again, Andrew teased a good new show on Tuesday. So looking forward to that myself as well. Can't wait till then. And I'm a patron, so I get it early. All right. Thanks, everybody. We'll see you next time.

1:10:33 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.

1:11:07 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.