OA627: How To Convict Donald Trump

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 627 and it's a yodel special. We're yodeling. All yodels, all day. I'm Thomas. That's Andrew Torres. How you doing?

0:01:26 Andrew: I am fantastic, Thomas. How are you?

0:01:32 Thomas: I mean, I'm just pumped. This episode, the things I'm seeing in the spreadsheet for this episode, Andrew, I don't believe it. It's possible I've died. So if you're all hearing this, you're in my afterlife where we get to talk about fun consequences for Trump. But either way, we're all, we'll, you know, I don't know. Is this the matrix or is this real? Either way, we're all here together. Let's enjoy it.

0:01:40 Andrew: Clear the whiteboard, my friend.

0:01:56 Andrew: The steak tastes as good to me, so, you know.

0:01:59 Thomas: Excellent. Before we get into all the fun, there's a hearing right now, and gosh, we've got Judge Barrel Howell, and Judge Cannon. What is with these- yeah, I think I'm dead. This is actually a simulation. They're all going to be weird judge names. Judge Cannon, and what's going on with that one? Cool.

0:02:15 Andrew: Yeah, Well, this is Judge Eileen Cannon. We've talked about her on this show and other shows. She's a Federalist Society weirdo. And despite the fact that she gave Trump's lawyers the blueprint of, "Hey, guys, you should argue this in front of me to win," and Trump's employers were like, "Well, yeah, we're not going to do that." Like, we're not going to talk at all about anomalous jurisdiction. So there's no basis you have. No one has argued in front of you that this court has jurisdiction. Nevertheless, all signs seem to point towards her, in the process as we record this, to appoint a special master to review the review that's already been done. I- it's- I- I- don't know, so I- we have to mention it because that order is going to come out when this show drops, and we will discuss it on Tuesday's show. I want to tell you, uh probably, I'm going to anticipate two things about it. Number one, it's going to be ridiculous, and number two, at the end of the day, it is not going to derail this train. So that's really what I want to get to for today's

0:02:57 Thomas: So it's the kind of thing where they're just like this

0:03:23 Andrew: Episode. Yeah.

0:03:23 Thomas: Is stupid but also low stakes, and who cares, so we're just kind of entertaining Trump on this. Yeah.

0:03:27 Andrew: Look, here's what the stakes are. Appointing a special master, and Trump has teed up and has asked for unlimited ex parte requests to be able to be sent to the special master. So, you know, look, like, if you're an ordinary criminal defendant, you don't get to go to a judge that you put on the bench, who will then appoint someone who can ferry back- backchannel to you documents that have been seized by the FBI, uh, and are being teed up for use in the criminal case against you. Like, no, ordinarily you don't get to, you know, hack your- the own prosecution from the inside. But, but at the end of the day, I- I don't think it's gonna matter, and that's that's my view.

0:04:11 Thomas: Yikes. He's So, porked, it doesn't matter. Well, But, Andrew, I'm also seeing that we learned a thing or two in the pleadings for the Canon hearing that you just mentioned. What did we learn?

0:04:23 Andrew: We had a an opposition filed by the DOD, which I posted out on social media. And for the first time ever, you know, I tell you, you read the complaint backwards, and, you know, don't- don't worry, let's get to the meat, and don't- don't get bogged down in the fact section. Um, get boged down in the fact session on this, because it really did two things. Number one, this was the DOJ, for the first time in a filing, that they knew they were submitting an unredacted form, right? So this is not us having to, you know, piece together a timeline in between three pages of blacked material.

This is what they want to tell the public in light of the information that has been out there. Number one, it really confirmed a lot of the speculation that we went through on Tuesday's episode. I was really, really proud of that. That- I'm going to give you a very- a specific example in a minute. But basically what this does is fills in the meat that we thought was probably hiding there, uh, underneath the redacted materials, and this is what the DOJ wants to tell us. It also did tell us several new pieces of information, so I want to highlight a couple of those right now. Starting kind of chronologically, you know, just working straight through the document, on page two, footnote one, we learn that plaintiff, that Donald Trump, sought a more detailed receipt for the property seized during the execution of the search warrant on his premises. We know that the government then was ordered by Judge Cannon to file under seal, quote, "A more detailed receipt for the property specifying all property seized pursuant to the search warrant."

0:04:31 Thomas: Mm-hmm.

0:06:03 Andrew: The government confirms that they did that. And then they say, although already provided to plaintiff at the time of the- the search, uh, is sufficient under Federal Rule 41 of Criminal Procedure, the government is prepared, given the extraordinary circumstances, to unseal the more detailed receipt and provide it immediately to plaintiff. So, yeah, that's a uh- we're happy to call your bluff. Yeah, uh, that I- and am sure that is part of the relief that Judge Cannon is awarding as we are recording this, and by our next episode we will have seen that more detailed accounting of everything that was taken away from Mar-a-Lago. As I- the fact section confirms our speculations in a number of ways. So, for example, subsection C says the former president delayed the FBI's access- access to the 15 boxes, right, and absolutely- this pleading is written from the perspective of a- you know, the Department of Justice, of somebody that knows they are going to have to prove obstructive conduct. Uh, and uh, that section- I'm not going to read page five, but it, uh, details, "Hey, look, we tried to get this information back, and

0:06:26 Thomas: So they brought receipts.

0:07:17 Andrew: You deliberately stonewalled us for a very, very long time, and that's obstructive conduct."

0:07:23 Thomas: Here's what you don't understand, Andrew. Trump declassified the obstruction of justice that he was doing. Before I have made a good legal point.

0:07:25 Andrew: Yeah. That will not be the worst legal argument made on behalf of Donald Trump that we cover on this show. Just- that's a- put a pin in that. That's a- that's a flash forward for the future.

0:07:41 Thomas: I've been following this amazing Twitter account called, uh, maybe you've heard of it, at OpenArgs, and, uh, was this where we found out that the passports were like mixed in with the documents? Oh, okay.

0:07:45 Andrew: Indeed, we're going to get to that. So,

0:07:51 Thomas: Sorry oh yeah, I can't wait.

0:07:51 Andrew: Yeah. Subsection E says, "After obtaining evidence indicating that additional classified records remained at the premises, DOJ initially sought their return through the issuance of a grand jury subpoena," and that is actually- I've also downloaded the exhibits, made them public, uploaded it to our website, and and tweeted that out, because it's fairly easy to find the pleading, but it's been harder to find the exhibits online. Uh, we have a copy of that subpoena and the letter accompanying that subpoena, which just laid the perfect trap. It's- it's really, really delightful, so we're- we're going gonna to get to that, and then some new facts in subsection F, and I want to- I want to actually read this to you, because we did not know what was turned over in request to the subpoena. Remember, one of the grab bag of arguments that have been flung against the wall is, "You didn't have to do a search warrant.

0:08:43 Andrew: We were cooperating. We were we were giving you our stuff. So so here is the stuff. So here's where we are on the timeline? That is, in January of 2022, Trump gives back 15 boxes of documents to NARA, to the National Archives. The National Archives opens it, looks inside, says, holy crap, we have to call the Department of Justice right now.

0:09:07 Thomas: Bunch of passports and an old sandwich and a plate of ketchup and a diet coke. What is this? This is a mess.

0:09:13 Andrew: Yeah, no, highly, you know, the top secrets, SCI information contained in the stuff he gave us. Wow, we're not, we can't even look at this. Let's bring someone in who can. And right, at that point, then, we still don't know why there was a delay between February and May. But we now know that in May, the DOJ issued out a subpoena that said- and I'm going to read what they requested, it's pretty interesting. And then we did not know how Trump responded to that- that subpoena. We now know how he did, the DOJ has told us, and it is, on June 3rd- this is page eight of the opposition- on June 3, 2022, three FBI agents and a DOJ attorney arrived at Mar-a-Lago to accept receipt of the materials that were responsive to the subpoenas. President, another as the custodian of records for the former president's

0:09:25 Thomas: Yeah yeah where

0:10:12 Andrew: Post-presidential office, and we believe this to be Christina Bobb, the lawyer and ex-OAN talking head.

0:10:21 Thomas: Did she come from- I hadn't- hadn't heard of her, and now she's in- she's Forrest Gump in the middle of all of this.

0:10:25 Andrew: She was in the war room on January 5th. She's just an OAN sycophant, like, I- apparently that's all it takes to waltz into Trump's inner circle, um, that

0:10:37 Thomas: I mean, let's be real. We knew that was all talk to us. You have to say four nice things about him on one of his horrible TV shows he likes. And then you're actually Secretary of State if you do that in

0:10:37 Andrew: Yeah yeah I help us if he wins another term yeah no I did, I you are, you are- almost not, that is correct. The DOJ continues, when producing the documents, neither council nor the custodian- asserted that the former president had declassified the documents, or asserted any claim of executive privilege. Shocker, that we're finding that out now that all of this was pretextual you after the fact okay that's

0:10:50 Thomas: Barely joking. I am barely, barely That's interesting. Thing. Well, but if they said That, that's interesting that they made a point to say that when I thought what we were doing before is we were just kind of zagging. Like we were just like, all right, that is a freebie. Who cares? Right? Because weren't they going to just kind sidestep the whole issue of whether or not he declassified it? But it sounds like here they are actually saying, but also he didn't.

0:11:31 Andrew: Right. Yeah. And and so backing that up, the next sentence, instead council handled them in a manner that suggested council believed that the documents were classified, the production, and let's listen to the volume of this, the, the production included a single red weld envelope. Okay, that's the kind of brownish old-timey envelope that you can put like about 200 documents in and then you fold it over the top and like wrap the little rubber band around the thing to close it up. That's a red Well, okay.

0:12:04 Andrew: Yeah. A single red weld, so about 200 pages, double wrapped in tape, containing the documents, so

0:12:04 Thomas: Oh, okay, okay. Double wrapped in tape, what would that mean?

0:12:12 Andrew: Yeah. So Now let me, I mean, seriously, like wrapped around twice with tape, right? So let me interject my commentary here. To me, this suggests, and again, I think this is part of the trap that the TOJ was setting, and when I say trap, I mean perfectly reasonable trap, right? Like not entrapment. But like, you know, this is how law enforcement works. When you have a criminal, you're like, hey, would you, would you like to come forward, right?

0:12:14 Thomas: Oh, Yeah. Yeah.

0:12:39 Thomas: I remember all the discussion of when we were trapping Trump by just giving an opportunity to like talk, like, because he would lie and break the law. Ah.

0:12:40 Andrew: And Yeah. It's a perjury trap.

0:12:47 Thomas: It's perjury trap.

0:12:47 Andrew: You know You know. I'm gonna lie, so that's that's a yeah

0:12:50 Thomas: So You're not allowed to ask me anything, that's how it works.

0:12:52 Andrew: Yeah. That's exactly right. So as a part of that, I think the DOJ was attempting, tempting to lead Donald Trump to believe that, you know, if he just sort of claimed the, like, I, my bad, sorry, I, I grabbed a bunch of stuff when I was heading out the door, and uh, you know, I'm gonna turn this all over to you, and it's no harm no foul, and we're gonna look at the specific certification that the, the custodian, again we believe to be Christina Bobb, signed. So this behavior, right, the, okay, we're meeting you, my lawyer is here, we've got this certification, we've, oh yeah, no, uh, yeah, we absolutely agree, we put this in an envelope, we double sealed it, we, you know, marked it beware of the leopard, Like we're just, you know, it's all going to be fine, right? Not

0:13:36 Thomas: This Look, I. This is a double wrap with the tape. Nobody's getting through this thing.

0:13:44 Andrew: The Russians do not have scissor technology yet.

0:13:45 Thomas: Yeah. They don't get through two. They check one. If it's two wraps, they can't get through it. That's how the Russians work.

0:13:47 Andrew: Yeah. Yeah. So the DOJ continues, after producing the red weld, counsel for the former president represented that all the records that had come from the White House were stored in one location, a storage room at the premises, Mar-a-Lago here, and after the storage room and that the boxes of records in the storage room were the remaining repository of records from the White House. Council further represented that there were no other records stored in any private office space or any other location in the premises, and that all available boxes were searched. As the president's filing indicates, FBI agents and DOJ attorney were permitted to visit the storage room. Critically, however, the former president's council explicitly prohibited government personnel from opening or looking inside any of the boxes that remained in the storage room, giving no opportunity for the government to confirm that no documents with classification rankings remain. Okay, so that's an important detail in the story, right?

0:14:51 Andrew: They show up, they're marched into the room, they're like, hey look, okay, uh, all the other kind of records and stuff, the only place they're kept is here in this storage office, uh, can we look at the boxes? No, you may not. All right, so and again, they're there pursuant to a voluntary agreement at that point, mean, so they Don't, right. But, by the way, like that doesn't mean that DOJ just, like, goes home and it's like, well, we asked to see the boxes and he said no, so, um, you know, we're we're out on this one. Now, no.

0:14:50 Thomas: Yeah, but I But I want make sure, I thought I heard something in there that was interesting and just want to make sure I heard it right. It sounded like a kind of interesting Catch-22 happened. And maybe it was this, the trap you're referencing, which is they go over there. And if, you OAN newscaster that for some reason is the, the custodian of all these secret documents, she, if she acts like, oh yeah, we're doing a good job protecting these totally classified documents, then that takes away the ability to to say he declassified him, right? Or had they just acted like, oh, these documents, there's the, everybody hand them out to golfers because it doesn't matter because he decllassified him, right? Is that what happened? Like they, they kind of acted like they were taking a good, good care of these in in a way that protects them because they're classified, but then that takes away the ability to say she had declassify them, did?

0:15:53 Andrew: This You have got that exactly right, and I'm just going to jump ahead, I was going to do this chronologically, but I'm going to to jump ahead to the text of the actual subpoena. So this is attachment C, right, which again is also, I'll link it in the show notes, it's available, we published these exhibits on our web page. The right subpoena itself says, and I thought that's really really interesting as a glimpse into the DOJ strategy. So May 11th, attachment C says, hey, give us, quote, "any and all documents or writing in the custody or control of Donald J. Trump and or the office of Donald J. Trump bearing classification markings, including but not limited to the following: top secret, secret, confidential." And then there's like 50 different letterings.

0:16:52 Thomas: A more than normal amount of tape around them, I

0:16:54 Andrew: Yeah. Yeah. Right. So the important thing is the subpoena said, give us the classified documents, documents, that's what enabled them to make this representation of, hey, um, you may have, give us the classified documents now, and you we get it, you may have also accidentally taken some other stuff, uh, so there could be other things kind of hanging out behind, but you know, this is really really important, you turn those over to us. And uh, attachment D, right, the letter, the cover letter, letter that went with that subpoena said, yeah, we're not going to make you show up and testify. It said, quote, "Dear Mr. Corcoran," that's Evan the Cork, that's, that's Trump's lead lawyer, "Thank you for agreeing to accept service of the grand jury subpoenas on behalf of the custodian of records. As we discussed, in lieu of personally appearing, the custodian may comply with the subpoena by providing any responsive documents to the FBI at the place of their location."

0:17:48 Andrew: The FBI will ensure that the agents retrieving the documents have the proper clearances and will handle the materials in the appropriate manner. The custodian would also provide a sworn certification that the documents represent all responsive records. If there are no responsive documents, the custodian would provide a sworn certificate to that effect. So that that was, I think, the last chance to voluntarily get out of this, right?

And it would be really really interesting, and again, completely out of Trump's character, right, if he had said, all right, well then I'm gonna give it all back, right, you got, you got me, right, I can feel the walls closing in. And if he'd given it all back, then we might not be here right now.

But, right, of course, he's Donald Trump, he didn't give it all back, he put a hundred, two hundred documents in an envelope and made a reporter from OAN sign it that says Uh, I certify, and again this is Attachment E, uh, signed under penalties of perjury. "Right, I've been designated as custodian of records. Based on information that has been provided to me, I am authorized to certify on behalf of the office of Donald J. Trump the following: A, a diligent search was conducted of the boxes that were removed from the White House to Florida. B, this search was conducted after receipt of the subpoena in order to locate any and all documents responsive to the subpoena.

C, any and all documents responsive accompany the certification. And D, no copy, written notation, or reproduction of any kind was retained as to any responsive documents." So, and remember, gave them one envelope, um, that's the, the, the trap having been sprung. Look, okay, right, maybe we had kind of

0:19:29 Andrew: An accident and some stuff behind, but now we've definitely given you everything. And uh, the DOJ, this, we're gonna, you know, now go back to page 10 of their opposition, they say, you know, you can cue the Morgan Freeman voiceover going, as it turns out, they did not give them everything, right?

0:19:46 Thomas: Think you're thinking the Arrested Development, uh, I think that's the proper meme for this. They didn't Yeah, It's Ron Ron Howard, yeah.

0:19:51 Andrew: Is it? OK. Yeah, I could do that. I could deal with that, too. G says, after further investigation indicated that the response to the subpoena was incomplete, obstructive conduct occurred in connection with the response to the subpoena, and classified information remained at the premises. So DOJ obtained a court-authorized search warrant. And again, I just want to read you one paragraph out of there that says, through further, further investigation, the FBI uncovered multiple sources of evidence indicating that the response to the May 11th grand jury subpoena was incomplete and classified documents remained at the premises, notwithstanding the sworn certification made to the government on June 3rd. In particular, the government developed evidence that a search limited to the storage room would not have uncovered all the classified documents at the premise.

0:19:55 Thomas: And

0:20:43 Andrew: Says the government also developed evidence that government records were likely concealed and removed from the storage room, and that efforts were likely taken to obstruct the government's investigation. This included evidence indicating that boxes formerly in the storage room were not returned prior to council's review. Now, I speculated on last Tuesday's show, maybe they had a surveillance warrant, maybe they have, uh, witness testimony from, you know, cooks and groundskeepers at Mar-a-Lago, I don't know. What I do know is that the DOJ has now said in print, you gave us this certification, and we have multiple sources of evidence that you lied in the certification, and that's not real good, no,

0:21:25 Thomas: Just checking. You're not allowed to just do that, right? I They even gave you the chance to plead oopsie daisies, they could they could have issued a writ of oopsie daysies and but they didn't, and they said, all right, we've got, we've, scouts honor, we've given you absolutely everything, and uh, then Ron Howard came on and said, they didn't, in the background, and

0:21:29 Andrew: Right. Multiple multiple opportunities opportunities. Yep.

0:21:47 Andrew: Yep. We can pull out your pin on the passport that shows up on page 12 in footnote 6, and this is just, you chef's kiss level. Plaintiff, that's Trump, repeatedly claims that his passports were outside the scope of the warrant and improperly seized, and that the government, in returning them, has admitted as much, and we've talked about that. These claims are, are incorrect. Consistent with Attachment B to the search warrant, the government sees the contents of a desk drawer that contained classified documents and governmental records commingled with other documents. The other documents included his passports. The location of the passports relevant to evidence in an investigation of unauthorized retention and mishandling of national defense information, nonetheless the government decided to return those passports in its discretion. We're going to talk about that in the law section of this, right?

0:22:43 Andrew: Like, but yes, that is, Donald Trump has now said, they even came in and they stole my passports. And, DOJ has now says, no, we came in, you had a drawer full of stuff that included confidential national defense info, and your passports were in the drawer. We could have, have kept them if you were Donald J. Smith and not Donald J. Trump, we would still have them, but nevertheless, made a big deal about it, so we gave them back.

0:22:41 Thomas: Incredible. Oh, okay.

0:23:09 Andrew: Yeah, your

0:23:08 Thomas: It's incredible. I loved it. I saw this from the aforementioned amazing Twitter account, at OpenArcs, because this strikes me as such a whammy. It went from like the whole right-wing, you know, Trump and everybody in that sphere being like, and look, as evidence of them overstepping, they stole an innocent man's passport and he can't go anywhere. And instead it's like, no, man, actually, we ended up with those because you so badly mishandled these secret documents that your passports ended up in them.

0:23:39 Andrew: Passports were the cheese in between like two slices of confidential bread. Like

0:23:44 Thomas: Yeah. Along with your like subway loyalty card and like his health insurance. It's like that's not evidence that they were stealing from you. That's evidence that you're keeping this in your junk drawer, apparently.

0:23:54 Andrew: Me Yeah. Yep, so what all did we get? Well, now the DOJ is also so happy to report, and again this is why I don't understand why Judge Cannon is even entertaining arguments, because the, the search has been done, the team, team has done its work. Remember, Trump waited almost three weeks before trying to do something. And so, uh, like the stuff they took, the privilege team has been through it, the lawyers have been through, what have they found, the investigative team, this is page 12 to 13, has reviewed all the materials in the containers that, but the privilege review team did not segregate as potentially attorney-client privileged. Of the seized evidence, 13 boxes or containers contained documents with classification markings. In all, over 100 unique documents with specification markings, that is more than twice the amount produced on June 3rd in response to the grand jury subpoena, were seized.

0:24:50 Andrew: Certain of the documents had colored cover sheets indicating their classification status. Us, and again, we tweeted out that picture, you've seen that, that one's been kind of all over the internet, but and these are the bright yellow, bright orange cover sheets that say top secret, secret slash SCI, uh, or the orange one says secret slash SCI, like this is designed to show you, you don't accidentally wind up with these, right?

0:25:17 Thomas: Yeah.

0:25:18 Andrew: It, it has a huge cover sheet attached.

0:25:21 Thomas: Let me ask a really dumb question, Andrew.

0:25:23 Andrew: I love it.

0:25:25 Thomas: Had President Trump declassified these documents, would someone have taken these bright yellow stickers off of them?

0:25:25 Andrew: Yes. That's what you do, yeah. So, excellent question. Now, what kind of documents did they recover? The classification levels ranged from confidential to top secret. Certain documents contained additional sensitive compartments that signify very limited distribution. In some instances, even the FBI counterintelligence personnel and DOJ attorneys conducting the review required additional clearances before they were allowed to review certain documents. Notwithstanding counsel's representation on June 3rd that materials from the White House were only located in the storage room, classified documents were found in the storage room and the former president's office.

The search cast serious doubt on the claim in the certification, and now in the motion, that there had been a quote, diligent search, for records responsive to the grand jury subpoena. In the storage room alone, FBI agents found 76 documents bearing classification markings. All of the classified documents seized in the August 8th search have been segregated from the rest of the seized documents and are being separately maintained and stored in accordance with appropriate procedures for handling and storing classified information. That the FBI, in a matter of hours, recovered twice as many documents with classification markings as the quote, diligent search, end quote, and you gotta love when the DOJ

0:26:52 Andrew: Starts using sarcastic quotes right Yeah, that the former president's council and other representatives had weeks to perform, calls into serious questions, the representations made in the certification and cast doubt on the extent of cooperation in this matter. We learned a little bit of stuff from the exhibits. We've known that the members of Congress have known about this for a long time. NARA answered questions back in February, right, that were sent by the House Committee on Oversight and Reform. That's Carolyn Maloney. And in mid-February said, yep, we found confidential information at the search of the White House. NARA has identified certain social media records that were not captured and preserved by the Trump administration, and learned that some White House staff conducted official business using non-official electronic messaging accounts that were not copied or forwarded into their official electronic messaging counts as required by the Presidential Records Act.

0:26:52 Thomas: Your own words against you? Yeah.

0:27:51 Andrew: NARA is already obtained or is in the process of obtaining some of those records. So, again, you want to think about pieces in motion. That's a piece that's in motion that nobody has talked about yet. We've talked about what the subpoena and the accompanying records and the certification said. So those are the things that we learned, and now I told you in the last episode, uh, as we are, uh, outfitting our base camp at the uh apex of Yodel Mountain, uh, said in the last episode I thought it was more likely than not that Trump would be indicted. Thomas, what I'd like to do is give you the step-by-step playbook for how Donald Trump could be convicted. And I'm going to use the same process that we used back in episode 13 of the show, right?

0:28:42 Thomas: Moly.

0:28:42 Andrew: Lock her up. We evaluated

0:28:43 Thomas: It's coming full Circle, everybody. Buddy cannot this whole time you were talking about this nonsense that they've done, all that was ringing in my ears and my brain, Andrew, was James Comey doing a press conference saying Hillary was extremely careless in having that, you know, like just juxtapose that and what Hillary was doing, which was sending some, you know, some recipes over an email server with, with all this, I mean, it's just, it's just maddening.

0:29:11 Andrew: I think the government has already signaled it does not intend, uh, to proceed under what would now be, I, I don't know, I guess too much of a slam dunk, I, I don't know, but that is the very statute that we, we analyzed with respect to Hillary Clinton, 18 USC 793 F, that is mishandling national defense information. And so subsection F makes it a crime, makes a crime up to 10 years in prison for whoever, being entrusted with any document relating to the national defense, through gross negligence, permits the same to be removed from, or two, having knowledge that the same has been illegally removed from its proper place of custody, shall be fined under this title or imprisoned not more than 10 years or both.

0:30:03 Andrew: And I elided over some gloss in the statute, but the question we asked, the sole question that we looked at with respect to Hillary Clinton, was look, does passing documents through a private email server that could be hacked, does that constitute gross, gross negligence, as this statute has been prosecuted, right? And in reviewing every single case under 793 F at the time, we came to a conclusion of no, not even close, right? There

0:30:31 Thomas: Love when you Had we in there, yeah, no, I reviewed some of those cases. How many do you remember? It's been a while, Andrew, did I? Read I must have read, probably, probably not quite half of them, but, you know, like we split them up.

0:30:40 Andrew: There was a division of labor there. But The very first case we reviewed, these facts will come kind of roaring back to you.

0:30:41 Thomas: Yeah. By Yeah.

0:30:49 Andrew: Because there were some great ones, was a case called, yeah, the dumpster case is the most fun, but this was the first one was United States versus Gonzalez. That was Air Force Staff Sergeant Arthur Gonzalez, who was stationed at Elmendorf Air Base in Alaska, and he left one night to go visit a civilian friend who worked for likely one one of the major oil companies up in Prudhoe Bay, Alaska. That was 725 miles away, Prudho right? Bay, northern terminus of the Trans-Alaska Pipeline system. So, you know, he goes off to visit his buddy, brought along some personal mail for his friend, whose name is Mr. Garrett. And as purely an

0:30:51 Thomas: It's like a dumpster case. There's a... Yeah.

0:31:28 Thomas: What

0:31:28 Andrew: Accident, accident

0:31:28 Thomas: Is this, fourth grade teacher or something? Why is his name Mr. Garrett?

0:31:30 Andrew: Accidentally sorry, accidentally commigled two classified documents in with that pile of milk two, right, upon reaching Prudhoe Bay, he discovered the error, but, and again, at this point, I just, like Donald Trump, if he had gotten there and called the Air Force and been like, "guys, I really screwed up, I accidentally took along two documents with a security classification, send the security van here to Prudhoe Bay, tell me what to do." That would have been fine,

0:31:39 Thomas: Yeah. Yeah. Yeah. I'll wait here with him.

0:32:02 Andrew: Instead, what he did was put the two classified documents in a desk drawer in Mr. Garrett's room, intending to retrieve them on the way out. And then it doesn't say they had a raging bender over the weekend, but it does say that Sergeant Gonzalez forgot to get the documents out of the drawer and returned back to base once the weekend was over. So, from that, I, I infer it's pretty fun weekend. It turns out the court has, to this moment, in, in kind of fine, uh, storytelling fashion, been describing as Mr. Garrett's desk. It's not exactly Mr. Garlett's desk, um, rather Mr. Garret worked one One week on and one week off at Prudhoe Bay. And there was another oil company employee.

0:32:45 Thomas: Shared cubicle situation.

0:32:46 Andrew: Yeah, Mr. Nicholas Scales, who also used the desk. So Scales gets to work, opens his desk drawer, and is like, "why the hell is there a bright yellow cover sheet on these two documents in my desk?" Immediately notified his superiors, who in turn immediately notified the Air Force. Course, Gonzalez was convicted under 793F, upheld on appeal, sentenced to 43 days in jail, discharged and reduced all the way down to the lowest rank, which is airman basic. Now, I would like for Trump to do more than 43 years, and 43 years, that's, I'm gonna leave, leave that uh balapropa's a bit.

I would like for Trump to do more than 43 days in jail, but I want to point out, right, already the admitted facts, there was nothing you could dispute, right? Now, if you're Trump, or, you know, set send this to your Trump or friends, this, right, is classified documents, two of them, accidentally stuck in a desk and forgot about. Donald Trump has already done a thousand times that, and case closed, right? He is already engaged in the kind of behavior that the statute defines as gross negligence over national defense information. So we got him, we're done, want,

0:33:25 Thomas: Yeah. Okay. We got him.

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0:37:14 Andrew: Way, remember I told you, back when we did Hillary Clinton, that gross, that negligence is not really the way that most people get convicted under the Espionage Act, right?

That, okay, if it's, the I go on a bender in Alaska and forget to bring the documents back, or I, instead of shredding them, I throw them in the dumpster, like a couple of these guys have been, uh, you know, kicked out of the Air Force for today, but by and large, we don't tend to prosecute that.

And if you are, you know, Uncle Frank, if you're a Trump apologist, you're gonna say, "look, like, we didn't prosecute Hillary Clinton for, uh, what could have been arguably gross negligence in treating confidential," you're really gonna prosecute, but that one of the only cases you're going to take, and you're to prosecue the former president for having classified documents, documents that he could have declassified at any time, right, because that would be then the next sophisticated level of the argument would be, "okay, obviously he didn't declassify these documents, we know there's no evidence of that, but he could have, so this is really kind of harmless," there, you're really going to make an example out of a former president, I don't think so, and let's, let's steal bought that argument, so let's now prosecute Donald Trump under the statute that everybody gets prosecuted for, uh, who violates the Espionage Act, that's the immediately previous subsection,

0:38:39 Andrew: 793E. Here's what this requires. This says, "whoever, having unauthorized possession of any document relating to the national defense, or information relating to the national defense, which information the possessor has reason to believe could be used to the injury of the United States, or the, the advantage of any foreign nation, willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it, shall be fined under this title or imprisoned not more than 10 years, or both." So could you prosecute Donald Trump under subsection E?

And the answer is absolutely, and it's still not that hard. So this is the statute that Trump's defenders are lining up, the, the, the less stupid ones, right, are lining up to try and build a set of responses, and I want to knock them down now because you are going to see these all over Fox News in the next couple of weeks, and I want to tell you that they are based on absolute nonsense. Let's start off with the first one that I've seen. This came from an article in the American Conservative by a guy named Peter Van Buren. He's not a lawyer, but again, like, look, he's been kicked off of Twitter for life for harassment, like, so not

0:40:04 Thomas: Really?

0:40:04 Andrew: The greatest source, yeah, not the biggest source, but, but this is not Q Anon, right, this is not just like some goofball, this is, you know, the American Conservative, this is supposedly, supposedly conservative's intellectual, you one of their intellectual outlets, and here's what he says, uh, that is just not true at all, not in the slightest. He says, quote, "on the first charge, the Espionage Act prosecutors would need to show that he kept classified or other national security related information at Mar-a-Lago with the intent to cause injury to the United States."

Now, this is a dangerous argument to come up against because I read you that and you're like, "well, wait a minute, wasn't there a thingy about, you know, believed could be used to the injury of the United States," and isn't there amends raya, and look, here's a guy in a tie in a magazine saying that that means in order to prove that you willfully retains it, you you have to think that you're doing it to the inquiry of the United States, and Donald Trump didn't think he was doing it to the injury of United States. Just, you know, I don't know, he's he kind of likes to collect stuff with his name on, but it, that's the argument that they're going to tee up. And the the problem with this argument, uh, is that the statute 793e, 18 USC 793 e, uses the word "or," so let's go back and read those terms right.

0:40:09 Thomas: Yeah. Yeah.

0:41:25 Andrew: It says whoever having unauthorized possession of any document related to the national defense or information related to the national defense, which information the possessor has reason to believe could be used to the injury of the U.S. or to the advantage of any foreign nation, and willfully retains it, you know, can be pressing. So the case law, and I want to tell you this is crystal clear, this is clear as Kushner, the caselaw says, okay, so under 793e there are are document cases and there are information cases. What's the difference between a document and information? A document is you got a tangible copy. Information is, oh, I read it on the screen and now I'm going to go call my Russian informants, right?

0:42:12 Andrew: So tangible versus intangible. Here there are tangible copies. So it's a document case. And in a documentcase, I am going to quote from United States v. Hitzelberger. This is one of the cases that comes up again and again. So a prominent case, U.S. v. Hitzelberger, 991 F. Subsec. 101 from the District Court for the District of Columbia, 2013. The Hitzelberger case, summarizing all of the authority on this issue, says the document clause criminalizes a defendant's willful retention of tangible items relating to the national defense, while the information clause criminalizes a defendant's willful communication of intangible information.

Essence, the information clause imposes an additional mens rea requirement on the defendant, requiring that the defendant know that the information could be used to injure the United States or advantage a foreign nation. Because Trump has documents, that additional mens rea requirement does not come into play. Prosecutors do not have to show that Trump knew or thought the documents could be used to injure the United States. So all prosecutors will have to shows that objectively the documents relate to the national defense, and historically that's been construed incredibly broadly. This will not surprise you, it right, is not unconstitutionally vague, and the court will presume that anything, anything secret classification or higher, is presumed that, quote, "if compromised would cause serious damage to the United States," end of quote.

0:43:50 Andrew: Even if some classifications are inaccurate, sometimes it's overbroad, there are a whole bunch of cases, and these cases go back, like, like the inaccuracy cases, a case called U.S. versus Dadeon from the Fourth Circuit in 1978, '78, right, for decades and decades, it is no no no no no. If you take, if you steal documents that are marked secret or higher, right, even if they get subsequently declassified, even if that classification should be declass, no, like, you know, those are documents related to national security, we're not going to listen to any argument about, like, well, you know, it's it's only like, like, all this is, is the troop movements from, you know, whatever. And that's, you those have long since changed. Doesn't matter.

0:44:30 Thomas: Yeah. Yeah. Well, that's interesting, because when you're reading it, I kind of took it a different way. I thought it was the expanding it to, what if somebody took some information, or you're mentioning, like, seeing something on a screen and they don't know what it is, but they're like, well, this might be helpful to somebody. And they tell to somebody, it doesn't require that it actually was some secret thing. They could still charge somebody for seeing something. It turns out to not be anything helpful to the Russians, but like they thought like, Oh, maybe this will be helpful to the Russians. Like that's kind of how I took that. Is that

0:44:37 Andrew: Right. Yeah, it would

0:45:09 Thomas: Both

0:45:09 Andrew: It would have both it would have both components to that. Right?

0:45:11 Thomas: Components? Cool.

0:45:12 Andrew: So in other words, if you took objectively useless information, but you thought it might help the Russians, you would probably have a defense to an 18 U.S.C. 793e charger if either, if, if uh it was either documents or information you saw on a screen and it turned out that it was worth, let's say it was the, like, lorem ipsum, right, of the uh you know yeah who knows, yeah, right, like, now it's hard again, let me tell you that, it's why I read the bit that, that says relating to the national defense is construed incredibly broadly, like we know, particularly now, like Al Qaeda's data mining techniques are really, really sophisticated. And so, you know, something can undermine the national defense because it confirms a bit

0:45:24 Thomas: If it was documents. Oh, okay.

0:45:37 Thomas: Yeah. It was just somebody's email signature or something.

0:45:51 Thomas: Yeah, yeah. Right. Right.

0:46:05 Andrew: From something else that they've cracked through code breakers. Right. So so the law is just above and beyond clear here. This is, if, if the question comes into play, well, it's not really national defense information, that that is not a subject on which Donald Trump will win. The classification, current classification status, not relevant. What matters is, is does it relate to the national defense, and almost everything does. So, okay, throw that defense out of the water. Um, second thing that I've seen come up, I couldn't find a scholarly or or semi-scholarly article on this, but I have seen people ask. Right. But this is espionage. So you have to show that he intended to sell it to the Russia or whoever. Right.

0:46:09 Thomas: Good point.

0:46:39 Thomas: Yeah. Yeah,

0:46:50 Andrew: Or was about to, or he sold it to the Russians, or there's got to be some kind of transmittal. And that just misreads the statute, that the transmittals section is subsection D. Um, people often do get charged with both uh D and E uh together, right, but there is nothing inherent, you can, you can prove that the retention was unlawful. It's also in E that says willfully communicates, delivers, transmits, or caused to be communicated, delivered, or transmitted, or attempts to communicate, deliver, or transmitted, but again there's an or, and the last part of E says or, or willfully retains the same and fails to deliver it to the officer or the employee of the United States entitled to receive it. And again, think about this logically for a second, right?

0:46:50 Thomas: Right.

0:47:38 Andrew: Like you want espionage to cover both, right, the spy that comes in and steals everything to go report back to his masters, right. And also the spy THAT comes in AND steals everything and, you know, wants to Hans Gruber it, right is like, OK, well, Well, now I have all of this valuable defense information. I will sell it to the highest bidder, right? You do not have to show that there was an intent to sell or deliver or give to anybody. This is valuable information related to the national defense and willful refusal to give it back is enough. So scratch that one off.

0:48:15 Thomas: So it sounds like these people who are making these arguments are not very good at reading the entire sentence. They're I've seen enough. I don't need to keep reading. And they skip the or the thing that Trump did part of it.

0:48:21 Andrew: Yeah. And the worst is about to come. And again, I want to call this out. We're not shy about calling out lawyers on the show. These lying lawyers are David A. Rivkin Jr. and Lee A. Casey. They work for Baker and Hostetler, which is a coat factory level firm. Right. Like they are prominent, respected lawyers. They are Federalist Society weirdos, of course. They know they are lying they have gone to the pages of the editorial page of the wall street journal so again right this is not this is not even the American Conservative, this is the Wall Street, I read the Wall Street Journal right

0:48:54 Thomas: Wow. Really? Because they've always been really conservative as long as I remember.

0:49:06 Andrew: Yeah right that the editorial page is absolutely

0:49:08 Thomas: Yeah that's garbage. Yeah

0:49:09 Andrew: Garbage but but this is something that is taken in by tens of millions of Americans. And this argument is, well, you can't prosecute under 793E. This article was entitled, The Trump Warrant Had No Legal Basis, which is amazing. But the argument is that because of the Presidential Records Act, Donald Trump is the rightful owner of these documents, or at least the law is ambiguous so you couldn't execute a search warrant

0:49:24 Thomas: Wow. Isn't This when the president does it, it's not illegal, but with a few more steps.

0:49:44 Andrew: It it involves just lying about what the Presidential Records Act is, right? So they go through, they talk about the history, that before the Presidential Records Act, yeah, um, presidential records were often considered the property of the president. That was changed in 1980. Right. And have to deliberately obfuscate between particularized legal terms in order to get to this point. And I need to call it out. Yeah.

Their core argument is that the Presidential Records Act gives presidents and former presidents some kind of an ownership interest in the presidential records, and that the Presidential Records Act supersedes all of the potentially applicable criminal statutes, and it doesn't criminalize taking some stuff with you when you go, like, you know, you just you just clean out your desk and you grab the stapler and uh, you, some an extra pack of printer paper, and, you know, some sticky notes and a couple of bright yellow documents labeled top secret.

A hundred percent of that is a lie. It is also a pointless lie. It is a, it is a pointless lie on the level of the that the president can declassify anything because of the footnote five that I read you earlier.

0:49:59 Thomas: Yeah.

0:50:58 Andrew: That, right, is that Trump has stolen more than just presidential records. So, again, in its brief, yeah, the DOJ says these accusations are belied by the statutes cited in the government search warrant, which make clear that this investigation is not simply about efforts to recover improperly retained presidential records. And by the way, 18 U.S.C. 2072 criminalizes the concealment of government records, including presidential records, right? So entirely nonsense. But even if presidential records were get out of jail free, other confidential documents that are not presidential records are the subject of the search and the subject of the government's assertions of criminal behavior.

0:51:43 Andrew: What are those? Those, well, presidential records are materials created or received by the president, the president's immediate staff, or a unit or individual of the executive office of the president whose function it is to advise or assist the president. So anything not specifically created for the president or his immediate staff is not a presidential record during that administration. What could that be? Well, like, for example, the capabilities of our trident nuclear subs. Right. Are not a Donald Trump presidential record. They might be a Ronald Reagan presidential record, Right, exactly. Right? But now, again, just to knock this down, suppose it was only presidential records, right. Right. Suppose Rifkin and Casey say, OK, look, he's completely off the hook here.

0:52:28 Andrew: Here is their argument word for word. And I'm going to show you, in these two sentences, there are at least three lies that any Opening Arguments listener can verify, not just listening to the show, but by pulling up the statute yourself. Okay, so they say the Presidential Records Act lays out detailed requirements for how the archivist is to administer the records, handle privilege claims, make the records public, and impose restrictions on access. That sentence is 100% true. This is the next sentence, and this is the one that contains three lies in less than 40 words. Notably, it doesn't address the, the process by which a former president's records are physically to be turned over to the archivist or set any deadline, leaving this matter to be negotiated between the archrivist and the former president.

0:53:22 Andrew: Now, if that were true, that would absolutely make it difficult to prosecute Donald Trump. Not a word of that is true. It's a stunning lie because the code is really pretty simple to understand once you take a look at it. So the Presidential Records Act begins at 44 USC 2201 et sec, right? Then et sec means that it follows. Section 2201 is the definition section, I just read part of that to you. Section 2202 is the purposes section, and I want to read that one to you word for word in its entirety. It says, quote, "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." That's it. That seems pretty unambiguous to me, right? This says, hey, look, there's no balancing of this or that. This is the Presidential Records Act says presidential records belong to the people.

0:53:32 Thomas: Huh.

0:54:18 Andrew: And we're going to specify exactly how they belong to people and And that specification comes into play in the very very next section, which is 2203. Now that section is there because presidents create and use presidential records while they're in office, right? Like you couldn't have a rule that says all presidential records must be immediately, you know, deposited with the archivist because then you'd be like, okay, draft one of my executive order.

0:54:37 Thomas: Yeah. Oh. Do you have that speech? Oh no. The argument's got it, damn, okay.

0:54:48 Andrew: No, no, the archIVist has it, right? Like, so the first six subsections of 2203, A, B, C, D, E, F, are about what sitting presidents can and can't do with their presidential records. Notably, it contains the requirement that, you know, you can't doing what Trump did with his records as sitting president, namely get part of the way through the draft of an executive order and then rip it up into a million pieces and throw it in your fireplace. Instead, subsection C says if you want to destroy something, you have to get permission from the archivist and get his views on, uh, uh, whether that record can be destroyed or not. So, uh, this is not a great section to be, uh, wandering around in if you're a Trump defender. Anyway, um, but but but that's what those first provisions are about, what happens when you're the sitting president, and they begin with D, C, and and E and F begin with the, uh, statement, "During a president's term of office," comma, right? Subsection G is what happens next.

0:54:49 Thomas: Yeah. Okay.

0:55:51 Andrew: It is the part of the Presidential Records Act that the liars Rivkin and Casey pretend do not exist, and they don't want you to look it up for yourself. So again, this is 44 USC 2203G. I will link it in show notes. You can look it up for yourself, you type it into the Google machine, you will get it, and it begins, G1, "Upon the conclusion of a president's term of office." Okay, so that tells us we're now transitioning, right? We've talked about what can you do when you're in office. Now, what happens the second your term ends, January, right? 20th. "If a president serves consecutive terms, upon the conclusion of the last term," right, that's just another way of saying upon the completion of your term of office, while being crystal clear, you are leaving. You no longer have need to use presidential records in doing your job because you're not the president anymore.

0:56:40 Andrew: Continuing from the statute, "The archivist of the United States shall assume responsibility for the custody, control, and preservation of and access to the presidential records of that president. The archivist shall have an affirmative duty to make such records available to the public as rapidly and completely as possible consistent with the provisions of this chapter." So that's not ambiguous, right? That says the second year term is over and you don't need to use them, those become the possession of the archivist of the United States, who shall, right, that's a mandatory, you can get mandamus on this, assume responsibility for their custody, that is where they are permanently located, their control, and the preservation of and access to those records.

Subsection two says archivists shall deposit such records in a presidential archival depository or another other archival facility operated by the United States, not the goddamn golf club, the right? Archivist is authorized to designate, after consultation with the former president, a director at each depository or facility who shall be responsible for the care and preservation of such records. So now let's go back to that sentence. Remember I told you there were three lies in 40 words? Here's what they say, right?

Notably, the PRA does not address the process by which a former president's records are physically to be turned over to the archivist. That's not true, we just read that to you, it specifically says they shall be physically deposited in an archival facility operated by the United States, not the former president. Okay, so that's lie number one. They continue, "or set any deadline," burnt lie number two. It says

0:58:24 Andrew: Immediately upon conclusion of the president's term, the archivist shall assume responsibility for the the custody and control of the records. Okay, they continue, uh, "leaving this matter to be negotiated between the archivist," negotiated between the archivist and the former president, that's not true either, that's lie number three. One sentence, there are no negotiations, there's a shall, like I said, like they know shall is not, well, you know, if you like, shall is the kind of thing that you can go get a rid of mandamus over. Lawyers who know better are deliberately obscuring terms like ownership and control with words like access, and so if you read the rest of their article they will say things like, well, see, presidential records are the kinds of things that they, you know, the former president gets access to. Sure, he gets access to it, okay, but he does not have control or custody. I have access over the Constitution, I can go down to the National Archives and look at the original, I've done this with my son, right, like super cool, like, yeah, it's actually a really fun trip, um it

0:59:12 Thomas: Yeah. Huh. Anything surprising in there that's not how you actually learned it in law school? You're like, damn it, actually. It's misprint. This is completely different.

0:59:34 Andrew: Doesn't say anything about guns at all in here. No, so I have access to the Constitution, if I attempt to walk off with it and put it in my golf Course, then I promise you, guys with guns will stop me because I do not have custody or control over the Constitution. It would be fun if I did, but I don't. We're here, and we should, because these people go out in Washington, D.C. and eat in polite society and pretend like they're real lawyers and they know better than this. But Trump made basically the same argument in his brief. He cited to a case called Armstrong versus Bush, which was a D.S. Circuit case from 1991, for the proposition that he has, quote, "virtually complete control" over the presidential records, without pointing out that that is yeah, you have virtually complete control over presidential records during your term of office.

0:59:36 Thomas: Yeah. Does

1:00:29 Andrew: And if you look at the authority cited in that Armstrong case, right, citing the creation of the Presidential Records Act. Those sources make it clear that that control ends the minute your term in office is up, and that specific section has been cited in case law is standing for the proposition that the Presidential Records Act provides for presidential control of records creation, management, and disposal during the president's term of office, and public ownership and access to the records after the expiration of the president's term. I don't think we could be any more clear than that. There is no defense here under the Presidential Records Act that says, "Well, they're my records," right?

1:01:10 Thomas: This mean the next level of the argument might be, well, since the election was stolen from me, my term didn't actually end.

1:01:19 Andrew: That is, you would have to make that argument, and I will point out and and I will point out you say "and they will," I will point out the reply brief filed yesterday, late last night, by the president, in in front of Judge Cannon, says, identifies him as a "prospective 2024 candidate against the chief executive," end of quote. It will not say Donald Trump cannot bring himself to have his lawyers write that Joe Biden is president of the United States in pleadings filed in federal court. So you you are absolutely 100 percent correct that that's all they have left, is is the big lie. I'm still really the president, I still get to do whatever I want with the records. I'm going to leave out I got a longer discussion here, but we've got way long already. Ready? Uh, so, if you get if you're

1:01:23 Thomas: And they will.

1:02:11 Andrew: A, uh, a Show listener who gets the, uh, newsletter tier, you get my unredacted, uh, notes and research materials for this, which is 13 pages long, which you will love. So I I want to summarize, and then I wantto tell you the result of my case research. And to summarize, eyes 18 U.S.C. 793E requires that, number one, the records be objectively related to the national defense. And every piece of information we have indicates that there were lots of those such records segregated away to Mar-a-Lago. Number two, it provides, in conjunction with the Presidential Records Act, that those records were not turned over to their rightful owner, which, upon the the expiration of Donald Trump's term, is the public, under the custody of the archivist. They were not they were sent to Mar-a-Lago. That fact is admitted. Okay, leaves the sole thing left to prove: were they willfully retained?

1:03:07 Andrew: And I guess kind of the the the steel bot argument I get, not that not that Donald Trump would be capable of authorizing his lawyers to make the best argument, uh, but suppose he did, right the best argument I could make if I were Donald Trump's lawyers would be, look, he's a narcissist, but he's not a Russian stooge, okay? He took documents that made him feel good, right, like that frame Time magazine cover, right, you saw that.

He didn't have any intent to sell them to anybody or or hurt anybody. He wasn't he wasn't willfully retaining the records, he was just kind of hanging on to him because, you know, he liked having them around. And so then the question is, does taking classified information that relates to the national defense to your house count as willful retainer under 793 e and the answer is, again and again, unmistakably yes. There are 64 cases in west law from the past 50 years that deal with with prosecutions under the section.

About half of them involve delivering them to somebody else, but that's because, again, cases, yeah, are often commingled, right? But there are more than half, right, so 33 of those 64 cases just involve people who take the documents, take them to their home, and don't return them, including, for example, U.S. v. McGinnis. The The appellant retained 311 classified items acquired during previous assignments. He was an operations specialist. He handled classified materials. He took them home and didn't properly safeguard them. That's it. That was sufficient to uphold a conviction under 793E. We talked about Hitzelberger. Hitzleberger was a linguist who was translating documents in Arabic, Farsi, Russian.

On April 11th, 2012, two of his supervisors observed him checking his email in a restricted access area, then printing multiple pages clearly marked secret from a secret printer, and then attempting to leave the building with the documents where he was stopped by his supervisor.

1:04:14 Thomas: That's what most people do. Yeah. Yeah.

1:05:16 Andrew: The documents contained the availability of improvised explosive devices in Bahrain, the schedule for the monthly travel of a high-ranking commander in Bahraine, and information about the location of U.S. Armed Forces in the region and their activities. He was trying to walk out of the building. He was stopped, did not make it to his car and was convicted. Conviction upheld under 793. The last thing I will add is the case law is just crystal clear. There's a case called U.S. versus McGinnis that summarizing the authority says we are aware of no case that creates a requirement of a bad faith purpose. And a reading of the legislative history reveals that Congress specifically did not intend to have such requirement in 793. In other

1:06:08 Thomas: I mean, why would they ever have written a law such that, hey guys, that what if somebody just like really likes snuggling with the secret defense material? Though, like, should we just, why would they never write that in? Yeah.

1:06:16 Andrew: Yep. I don't know why, but I will tell you that when you examine the history and you examine courts applying the case law from the inception of the amendments to the Espionage Act, they're just clear again and again. Again, like willful means, yeah, I know these things belong to the government. I am on notice of the fact that the government would like to have them, but I'd like to have them instead. That's all you have to prove. And Trump has admitted to that. So think that's right. I think so.

1:06:50 Thomas: I don't think his brain can fathom the fact that he can't just do that with anything he wants. Wow, like, All Yodel Mountain, uh, achieved. Well, okay, we have a firm map, detailed map of the top of Yodel Fountain, let's actually get there and then Sparta, kick the yodeler, Trump, off the top of it and

1:07:04 Andrew: Yeah. I am

1:07:09 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:07:15 Thomas: Now it's time for T3BE. Each week I attempt to answer a bar question, uh, and try to do better than one of Trump's lawyers could do. And I think I I do that, but

1:07:23 Andrew: A Local resident arrived at his favorite fast food restaurant intending to purchase lunch. When The resident entered the building, he accidentally bumped into another patron, causing some of the patron's drink to spill on the floor. The collision was not observed by any restaurant employees. The later, another customer entered, slipped on the wet floor, sustained a broken wrist from the fall, which necessitated a surgical operation. Arguing that the restaurant was negligent in protecting patrons from dangers, the customer sued the restaurant in tort. Will the customer succeed in his cause of action? So, A, yes, because the restaurant breached its duty to inspect the premises and warn of the dangerous condition or make it safe. B, yes, because the restaurant is vicariously liable for the torts of its patrons. C,

1:07:27 Thomas: It's me, isn't it? Okay.

1:07:46 Thomas: Oh, here we go. Oh, oh, wow. I

1:08:16 Andrew: No, because the customer's true claim is against the resident that caused the drink to spill. Or D, no, because the restaurant did not breach any duty owed to the customer. All

1:08:29 Thomas: Don't know. None of those quite fits what I would want the answer to be, I don't think. Because, like, looking at the details, a local Thomas arrives to his favorite Taco Bell, just, just pumped, ready to go, so excited to be there because it's truly the greatest restaurant ever conceived, and I accidentally bump into somebody. Silly me, I would, I would have bought him another drink, but whatever, uh, they spill on the floor and it says nobody saw it, and also one minute later, later another customer entered.

One minute's pretty, I mean, we've, we've handled questions like this in the past where it's like, well, you have a duty to put up a sign, mop the thing, whatever, but, like, come on, one minute, I mean, somebody, what's the, what'sthe line here? Could somebody just, like, put a banana peel on the floor and the minute it lands, someone slips on the banana peel, and it'slike well, the store should have known to clean that up. It's like, all right, a minute. That's, that strikes me as, this strikes me is not unreasonable. Although I, sometimes I get thrown off by negligent is not like evil or whatever.

1:08:40 Andrew: Right.

1:09:30 Thomas: Like, I could, perhaps it's negligent in that you just, you know, you neglected to discover that and neglected to fix it or whatever, and maybe negligent, it's not like a, like criminally negligent, or yeah, I'm not sure. So, let's make sure: arguing that the restaurant was negligent and protecting patrons from dangers, the customer sued the restaurant in tort. Will the customer succeed?

Well, A is a straightforward answer, yes, because the restaurant breached its duty to inspect the premises and warn of the dangerous condition or make it safe. I feel like that's, uh, that's a very plausible, no-nonsense. Yeah, even though it was only a minute, you know, you kind of have the, that's your job, you know, it's no one else's fault.

That's the thing that worries me about trying to get the restaurant off the hook for this, is I don't know who else's fault it is then, it's not really the, I mean, could you say it was the, the patron's fault? The, the, the happy-go-lucky Taco Bell eating patron just got a little too excited about eating his favorite Taco Bell, are we really gonna blame him? Uh, so that's A, is definitely plausible. B, yes, because the restaurant is vicariously liable for the torts of its patrons, I feel like that's gonna be the trick question answer, like if we're just doing full-on trick question bar, somehow that'll be it.

Uh, but that's stupid, I don't know, that seems weird to me. C, no, because the customer's true claim is against the resident that caused the drink to spill. So, the more reasonable, so A and C are the kind of the reasonable, no-nonsense yes and no answers. So because it happens so within a minute, you're not getting to the point where it's like, yeah, the restaurant has to have cleaned it up.

1:11:03 Thomas: It's like, no, I mean, the customer did it, you know. D, no, because the restaurant did not breach any duty owed to the customer, that's also very plausible, I'm not sure. So I think I actually like D better than C, if it was a no answer, because I don't really think the customer that bumped somebody and they spilled their drink is guilty of negligence, really, I don't think you have a claim, that's just, you know. Now, like, I think for all that person knows, he's like, oh, there's a little spill, well, it's not my job to clean it up, I don't work here. So, all right, I don't know that they would be guilty of some sort of tort, because it says the customer's true claim is against the resident. So, for that reason, I like, if it's a no answer, I'd like D a little better. So, I'm between A and D, and I'm just going to disregard the fact that it's obviously B because it's stupid trick question, and these bar exam questions have been impossible.

1:11:53 Thomas: I'm sure it'll be B in some weird way, is too easy. I'm worried that I'm getting too into the mind of this test, which, it's just been killing me lately, and last, last week I got it right by just saying, well, here's the dumbest answer, that it's, that's that the bar is true, and it was right. Maybe we're back to a no-nonsense one, I'm between A and D, I'm just going to go with A. Like, I get that one minute is pretty quick, pretty unreasonable to think that you're always going to clean everything up within a minute, but I don't know who else is to blame. Like, the restaurant is the, that should have done that, if it had been five minutes, 10 minutes, and the restaurant neglected to do so. So I'm going with A.

1:12:31 Andrew: 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 guests, your reasons therefore, we'll pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. Yeah.

1:12:42 Clip: And thank you, Let's go!

1:12:44 Thomas: Now it's time to thank our new patrons at patreon.com/law. Enjoying the goodies, the ad-free episodes, the early episodes, the extra notes you reference, you know, the stuff that they get to see that we didn't have time for. It's really cool. Become a patron. patreon.com/law. Andrew, thank our new patrons. You start us off.

1:13:01 Andrew: All right, thank you to Aderemi Artis, S Geist, tropetweeter, Michelle Higgins, Aaron Murray, Elisa, Avi Physics, Nick DeRosa, CHRISTINE WILLIAMS, Kevin Hurt, Bob Ryder, and GermansHateTrumpToo. Well, you know, nobody who speaks German could possibly be bad. Yeah.

1:13:24 Thomas: Yeah, I didn't really think they didn't. I mean, I just assume everybody does, really.

1:13:27 Andrew: Good. To know, though, good to no all.

1:13:29 Thomas: And thank you, too.

1:13:53 Thomas: Well, that's our show. I'm going to take the step-by-step guide that you gave us, Andrew, and I'm going to go lock Trump up right now. I'll be back. I'll you know how it goes.

1:14:02 Andrew: Right, good to know, y'all.

1:14:04 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.

1:14:37 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.