OA676: Kel McClanahan on the Biden Docs

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 676. I'm Thomas. That's Andrew Torres. How you doing, Andrew?

0:01:23 Andrew: Am fantastic, Thomas. How are you?

0:01:25 Thomas: I mean, I am not great. I feel like we're in for a lot of whataboutery and, you know, fake double standard, nonsense, whatever with these Biden documents. So, what can we do about that? How can we help illuminate what's going on there? What

0:01:31 Andrew: Yeah, I think maybe we should bring in an expert, like, I don't know, at random, Kel McClanahan, the National Security Counselor's law firm, you know, expert on these sorts of issues, if, if...if

0:01:52 Thomas: A hell of a coincidence because he's already in this call right now, so how you doing, Kel?

0:01:58 Kel: Doing good. I was just surfing through the phone lines and I found this number.

0:01:59 Thomas: Awesome.

0:02:01 Andrew: Way to be way to make both of us feel young. I appreciate that. That was that was a great boomer moment there. OK, so news. You and I were actually talking about this the previous night. So we're recording this on a Thursday and the night before, you know, we were sort of going back and forth as to really not whether but when Merrick Garland would name a special counsel to handle the Biden documents case. And of course, the day we record. So why I mean, let's just kind of start with the facts, the lay of the land. And then, you you with the law questions as as that develops.

0:02:38 Kel: All So what we know now is that Garland had a presentation today, a press conference, where he said that he had appointed a special counsel by the name of Richard Herr, who was the former U.S. attorney for Maryland and a Gibson Dunn partner, and that he did so at the recommendation recommendation of a U.S. attorney, Lausch, out in Illinois, who he had tasked with doing the preliminary investigation.

0:03:05 Andrew: Just to be clear, Lausch was a Trump appointee. And Herr is a Trump appointee? Right. Herb. Sorry. Her.

0:03:12 Kel: Both Trump appointees, although Lausch stayed on and did not resign. He was one of two U. S. attorneys that did not resign when Biden took over and her resigned and went to the private sector.

0:03:26 Thomas: So already, I want to ask you guys, uh, did you think it was a certainty that he would appoint a counsel? Because, I, my non -lawyer perspective, perspective, I thinking it could just be like a, oh, there's a document, it's a nothing issue, it's done. Why, why were you both sure that this would happen? Yeah.

0:03:44 Kel: I actually wasn't So sure. Yeah, took a little bit of a wait and see approach in our conversation last night with Andrew, because to me, in my experience, the special counsel generally comes in at the end of an investigation to say, okay, it looks like there might be a crime here. Now we need someone who is unbiased to go and do the decision making for whether or not we prosecute and who we prosecue. And then someone turned me around, a guy by the name of Bo of the Fifth Column on YouTube, gave this great presentation, basically laying out, well, yeah, here's what Jack Smith has been doing. He's convening new grand juries. He's dragging people in and making them testify again.

Again, he's avidly going through an investigation, and that seems to be the new norm. And yeah, that seems To be the New norm now. So it makes sense that her would be appointed this early as opposed to waiting until the end of the investigation. And I think that Laos retiring to the private sector didn't help matters. I think that if they're going to hand it off to anybody, they might as well just pull the trigger and do the special counsel.

0:03:59 Thomas: Yeah.

0:04:52 Andrew: And I would say something similar. I mean, my my thought process is just from the beginning. This we're in unprecedented territory and the attorney general is appointed by the president. And so, you a normal political atmosphere, you would want to say, oh, yeah, I I'm going to bring in a third party who is, you know, was not appointed by the guy that I'm ostensibly investigating. So, you that falsely elevate? I mean, in my view, that falsly elevates from what we know right now, the significance of the Biden document. And again, we're going to get into this. It's not so much the documents, it's how you respond to discovering that you have them that, you Know, that the criminal code cares about. And so, does it create the potential for that false equivalence? It does. Does. But I think that, you Smith appointment, for example, clearly shows that the foremost consideration is, hey, I want everybody to know, you I'm know, not meddling. I I don't have my, you know, thumb on the scale one way or the other. And so, you was why I was perhaps the most strongly in favor of it.

I to ask because I don't, I don't want us to pause lightly over a fact I did not know. Herr appointed U.S. attorney for the District of Maryland and resigned when, when, when Trump's term was over. Again, that fairly typical. Do you read anything into that? This is not, you know, I mean, our last foray into Maryland Republicans in the Trump administration was Rod Rosenstein, uh, somebody

0:05:34 Thomas: Yeah.

0:05:35 Kel: Yeah. Yeah.

0:06:24 Andrew: I know really, really well, um, I suspect you know fairly well, um, Richard Hurt.

0:06:26 Kel: I've heard the name.

0:06:30 Andrew: Oh, Not someone I know at all, um, so you read the prior association, do you know anything about the background and, or does the fact that, uh, that he resigned when Trump resigned, Trump was going to leave, in that visual verbal error, words, is this guy a Trump hack, right?

0:06:30 Kel: We would like that, wouldn't we? Yeah. I think that's why, well, that's not why he was picked. I think that is part of the calculus for why he was picked, is he definitely has his conservative bona fides. You know, he clerked for Rehnquist. He was a partner at Gibson Dunn. He was appointed by Trump to be the U.S. attorney.

0:07:08 Andrew: And just want to jump in and say Gibson done a huge coat factory firm. But Gene Scalia's firm. Right. You know, and well known as being connected conservative political circles in Maryland and D.C. Anyway,

0:07:14 Kel: Yeah, right. And he did that. He was appointed by Trump. And if I recall correctly, he just flew through the Senate like unanimous consent for his appointment. And he's very he's a he's A bird dog. He does go and aggressively pursue things, but he is generally well respected in legal circles, whether you're a Republican or not. And so they did that to say, look, the Republicans are going to want to paint him as a partisan hack, and he clearly isn't. He's one of them. The Democrats, if he doesn't go the other way, if if he he does does go to prosecution, prosecution or going to want to paint him as a partisan hack. And he's not that either, because a whole bunch of Democratic senators voted for him and he has got all these accolades to his name.

0:08:13 Kel: So he is truly the Raymond Deary approach to someone who is universally respected on on both sides who, when he makes a call, nobody's going to say, oh, it's because he's just carrying water for somebody. It's because that's the call he thought was a legitimate call.

0:08:19 Andrew: Oh, OK.

0:08:31 Andrew: I once said that about Bill Barr on this show. So I but but

0:08:36 Kel: Was that an Andrew was wrong?

0:08:38 Thomas: Yeah.

0:08:36 Andrew: Yeah, that was a though. That's the biggest one of my career.

0:08:39 Thomas: That's The Andrew Was wrong.

0:08:40 Andrew: Yeah. But I, let me ask it directly. You can have qualifications and and fides, but nevertheless have a motivation, right? That comes from spending a significant chunk of your adult life in conservative circles. So, you know, I mean, how do we know? Seem pretty confident that this isn't another Ken Starr situation, right? Do we know that this is not going to be somebody who will take the mandate from the appointment of special counsel and kind of track Biden to the ends of the earth with every QAnon theory that, you know, anybody can come up with?

0:08:40 Thomas: Yeah.

0:09:20 Kel: I don't. And that is a very fair comparison. The only thing that I would say as sort of a mitigation of that is that the more conservative you are as a jurist, as a lawyer, the more you tend to go with the protection of the executive branch and unitary executive type model. And so if were a perfect case and the facts were identical and Biden did exactly what Trump did, the report would come out and it would say, because of DOJ policy and the OLC opinion, we Are not going to prosecute because DOJ has not changed its mind on that. And so in that way, him being a conservative sort of cuts against him tracking Biden to the ends of the earth.

0:09:20 Andrew: Right.

0:10:15 Andrew: Can Is an excellent point, and I and I want to emphasize it just to make sure that it doesn't get lost. Could could we, you know, maybe send a letter to her and recommend that you in that event that that that her uses the the report language. Right. Like, on the other hand, if this report does not exonerate him.

0:10:31 Thomas: Well, We We gotta back up, we gotta get the basics. Because I don't even know, would Biden necessarily be guilty of anything here? Would it be a lawyer? Would it Be somebody else? What are the basics for the folks who just had a baby?

0:10:38 Kel: So,

0:10:44 Andrew: Yep.

0:10:47 Thomas: I mean,

0:10:46 Kel: So, Yeah, Why? I said, if it were the same, It's, it's clearly not the same. And as Andrew said at the beginning, the the key here is what happened after the discovery. And when I was talking to a reporter the other day and they asked me what are the similarities and differences, and I said, well, the similarity is that someone took classified documents out of the White House to somewhere else. During there, endeth the similarities.

0:10:49 Andrew: Yep.

0:11:12 Thomas: Yeah.

0:11:12 Kel: No, the differences are everything else. From who found them, you know, Biden's team found them as opposed to the National Archives going, "Hey, we're missing something," to what they did when they were found. Biden team did exactly what everyone would want you to do. Not what we learned today is even more. They went above and beyond. They found them. They called the White House. The White House counsel called NARA. NARA referred it to DOJ. DOJ investigated it. And while DOJ was doing their thing, Biden's personal lawyers, who are not government employees, went on their own initiative and searched everywhere else to see if they had gotten anything else. And they found it and they turned it over in December. The second they found me, I think they found another document this week, but, They're still searching. They are on alert that something happened during the transition that created a spillage, and they are doing everything they can to make sure that the harm is mitigated and all the documents get back to where they belong. Then you have Trump, who did not. And I think we can just leave it at That. I

0:12:24 Thomas: I like the idea of spillage. So there's like a barrel of documents and there's somebody poked a hole in it. It was, ah, dang it. We're leaking documents as we went.

0:12:32 Andrew: So want to try and front line all of the remarks that I'm hearing from conservative circles And anticipate, you to the contrary. Start kind of chronologically. My understanding is that the first notification from the National Archives to the Department of Justice. And this came from Merrick Garland's press conference today was on November 4th. Right. And so sometime earlier than that, probably the day before that, the White House had called NARA and said, oh, we found documents bearing classification markings. What do you want us with to that?

0:13:14 Kel: Think it Was the Second. What I Read was something like on the 2nd, the lawyers called the White House, and then the White House called NARA that day, and the records were turned over the very next day, which was around the 3rd.

0:13:15 Andrew: OK, got it. Got it. OK. And so then on the. So, yeah, yeah. There's... there's not much to squeeze in between November 2 and November 4. So November 2 documents discovered. Runs around sort of with their hair on fire trying to figure out who to contact. They contact NARA and then NARA contacts gets the documents on the third contacts the Department of Justice on the fourth. Um, is, of course, uh, the appointment of Jack Smith. And so the first kind of area that I've seen the Fox News type sort of try and throw up smoke bombs is, well, doesn't this impugn in some way, uh. Announcement of the special prosecutor, Jack Smith, in connection with the Trump -Naralago documents, when Garland, General Merrick Garland knew at the time that, oh, by the way, we're also taking a look at Biden documents that were,

0:13:31 Kel: Could be wrong on that, but it was within a day.

0:14:26 Andrew: You know, not in a secure location that classification markings. What do you make of that?

0:14:31 Kel: Predicated on this assumption that the two are related. And really, they're not. And today, you'll probably hear me sight to this guy, Bo, a few times because he did a lot this week. And one of the things that he pointed out was a great analogy. He said, when the FBI is investigating a bank robbery and they go and they zero in on the bank robber and they're ready to prosecute him, and then someone else robs a bank, they don't go, "Oh, well, we're not going to investigate the first bank robbery," they investigate both. And because the two are unrelated, if you discover that someone else has committed the crime, you don't not prosecute the first guy, you prosecute both guys and you investigate both guys.

0:15:09 Andrew: Yeah, And you don't Have to prosecute them both together, right?

0:15:21 Kel: And so I think it is a mark of, I'm not going to say goodwill. It credence to the idea that the DOJ is doing something right. If when they talked about Jack Smith, they only talked about Trump because they were only supposed to be talking about Trump. If they had at all factored in some other investigation into the decision to appoint someone to go after Trump, think about the hell that would have been raised over that. You're not even judging Mr. Trump fairly. You're talking about other people and impugning guilt on him. So, They Did it right. They kept it siloed. Yeah.

0:15:22 Thomas: Yeah,

0:15:59 Andrew: Yeah, Uh, It, that's great point. I agree with that. Okay, so we have heard Garland say on multiple occasions, right, you know, this Department of Justice speaks through its official filings. Right.

0:16:12 Kel: He said that publicly a few times, which is sort of ironic, But yeah.

0:16:14 Andrew: Know

0:16:15 Thomas: They should have issued a filing saying, we speak through our filings. Yeah. Yeah. Oh,

0:16:20 Andrew: OK. The number that I have seen, I just want to verify that that we're correct on that is on the order of 10 classified documents. Is still accurate?

0:16:30 Kel: Heard 10, I've read 12, but it's 10 and a, you know, margin of error. You

0:16:34 Andrew: Yeah. Yeah, by comparison, you we've had boxes and boxes of material. We know that there are hundreds of documents in connection with the Trump search warrant that bore classification markings. The other the thing that of all a sudden I, from the right wing lexicon, that strikes me as rather you convenient. Convenient came up with this crazy idea, and his lawyers, uh know, including uh Evan the cork, and and Alina Haba, and I know Haba wasn't involved in this, Christina Bob was, um, throwing around this this notion, huh, Yeah, that he'd secretly declassified the documents with his mind before taking them. And And that therefore, right, and again, maybe because we spent so much time kind of litigating that in public, I just want to point out that that if that were a thing, that's a thing that that would actually be available to Joe Biden. Right.

0:17:09 Kel: Mental declassification, yeah, with

0:17:31 Andrew: He he is the president.

0:17:31 Thomas: But can Donald Trump reclassify Biden's documents mentally?

0:17:37 Kel: His mind.

0:17:37 Thomas: Yeah. They can make each other commit crimes.

0:17:39 Andrew: But just just

0:17:38 Kel: Yeah. He takes care of Biden's documents at 500 yards with his mine bullets. So, you know, this is something that they actually have been gearing up for this. You're going to see this resurface. Right now, they're building the stage for this, because if you look, you have the House Republicans, the Conservatives, conservatives that They Ever since I'll say Wednesday, oh, that's way back, Wednesday, that was yesterday. Uh, ever since I'll say Tuesday or Wednesday, they have been talking about, you know, the vice president does not have the authority to declassify

0:17:45 Andrew: Yeah. Right now, who's who's building the stage? Oh, House Republicans. OK. Really?

0:17:46 Thomas: Oh.

0:18:19 Kel: Only

0:18:19 Thomas: He doesn't have the same mind bullets.

0:18:20 Kel: The President and So they keep saying that. Now, first of all, that is completely and hilariously wrong, but the setting the stage there so that when they mount this again, when someone says, "But why couldn't Biden do that?" They go, "But see, last week, we said that the vice president couldn't do that. That's why only Trump can do that, only the president can do that."

0:18:21 Thomas: Ah. Yeah. Literal when the president does it, it's not illegal thing. But when the vice president does it it is still legal yeah

0:18:50 Kel: And Yeah. And I mean, I haven't double checked this, like the executive order itself says that the Vice vice president is what's called an original classification authority. And I think you talked about this a lot when we were talking about the original classified documents.

0:19:07 Kel: The executive order is silent on whether or not the vice president can declassify records. So I actually went and called up a senior classification guy that I work with and I teach with. And I asked him, I was like, "No, how do you treat this?" And he says, "As long as I've been practicing in the CA and the intelligence community, the everyone treats the vice president as having all the authority of the president in this matter, uh, and left the president," says otherwise, like, as a matter of practice, they consider their vice president basically have delegated authority from the president to declassify things, and

0:19:39 Andrew: Huh. Did not know that. I would add, like, just I mean, a Biden is the president now. So he could actively declassify under that theory. And and I just want you to think about for a moment if he were to have done so. Just Right. Think about that. It's discovered. And then Biden says, oh, well, you know, whatever those documents are, I now declassify them. Be calling for Biden's impeachment. Right.

0:19:54 Thomas: Well

0:20:11 Andrew: Like that, that would be gravely irresponsible as a matter of national security. Right?

0:19:55 Kel: Oh, yeah. Oh yeah. Yeah. I mean, right now I'm supporting Biden in this because, but only sort of with a little asterisk on it, because there is no evidence that I've seen that any of this was conscious and he was trying to pull a Trump. If that changes, then, you know, come back to me, but

0:20:34 Thomas: Again you keep saying he like do we know again is this a movers thing is this somebody else okay I

0:20:34 Andrew: Yeah.

0:20:34 Kel: Yeah. Or his staff or whoever. Yeah, right. Yeah. Now the fun, the fun part is though, that if you go back to Trump's little mental mind bullets of declassification then, and I'm gonna get Wonder Boy in here as many times as I can't discuss it and

0:20:53 Thomas: Know I thought you were referencing that and I wasn't 100 sure but now I'm glad you you said it that's

0:20:58 Kel: The way he phrased it, and he said, like, there was a standing order that things get, that got removed from the White, from the executive office, were declassified. Well, then that would include Biden's documents. And so, So, because he could not keep his story straight, you know, he didn't say things that I removed. He said things that were removed.

0:21:14 Andrew: Oh, yeah. Yeah. Oh, gosh.

0:21:22 Thomas: You see the

0:21:22 Andrew: Yeah, good. Good point.

0:21:23 Kel: And so, yeah.

0:21:23 Thomas: Standing psychic order only applied as long as enough magi were creating it mentally I don't know how this is supposed to work

0:21:23 Andrew: Yeah.

0:21:32 Andrew: And, mean, that really transitions to the 18 USC 793 offenses. Right. That we began talking about way back in 2016 with Hillary Clinton's emails. Right, and that are independent of a document's classification. Right, so we've talked about this with Trump numerous times. It is clear these documents qualify. Right, they are any document Yeah.

0:21:58 Kel: NDI. Yeah.

0:21:59 Andrew: Relating to the national defense, and you say they're NDI, like, yeah, that's that's familiar to you in your practice. National defense information, that's Different, right? And so something can relate to that the national defense and bear any, all, or no classification markings, could be declassified, it still triggers the statute. The

0:22:08 Kel: Yeah.

0:22:19 Kel: As long as it's closely held. There's been a judicial gloss thrown over the Espionage Act to say the NDI, you can only prosecute someone for doing something with it if it's been closely held. Because that's to say, you know, you cannot indict under the Espio Act for sharing the menu at the cafeteria at the military base. Because it's not a closely held document, even though it clearly relates to national defense. They did that to get around First Amendment concerns.

0:22:41 Thomas: Yeah

0:22:48 Andrew: Sense, and, and I, I had to pause for a second because I'm asking, how does it relate to the national defense? And the answer is, right, because it's being served to defense officers. So I Yep.

0:22:58 Kel: Yeah.

0:22:58 Thomas: Because how much heartburn they have that day could be strategic information we only attack on sloppy joe night the third the enemy

0:23:00 Andrew: Yeah. No. That's Not It Our All our soldiers are logi, but so, uh, so we're talking about NDI. We're talking about it has to be closely held. I would infer, and correct me if I'm wrong, in the civil litigation context. Right. Like we talk about, you know, commercial secrets, and the old cases are basically lock and key cases. Right. And obviously, you Know, we've tried to update that in the post typewriter world and our courts are coming along rather slowly to that. But but basically that there's some indicia that you meant to keep somebody out. It's in a locked filing cabinet. It''s under lock and key. It ''s password protected. That sort of thing.

0:23:31 Kel: Yeah.

0:23:49 Kel: That's where the classification generally comes in. See, since under the Espionage Act, unless you get to 798, which is about the SIGINT stuff, you don't have classification as a factor. What happens is if it was classified, that is circumstantial evidence that it was closely held. And That's how they get to that, that but- And I think that's probably also why they're doing the special counsel thing, because we only know about the classified documents. There may be other documents we don't know about that are in the eye, and that are in these same boxes, and so they're probably wanting to make sure that everybody doesn't sort of do the hey, shiny classified thing and focus on that and miss the the actual scope of the element of the crime.

0:24:09 Andrew: Got it. Yeah.

0:24:20 Thomas: Hmm interesting oh

0:24:23 Andrew: Right. Right?

0:24:39 Andrew: Excellent point. So now as far as I know, the only offenses that could potentially overlap again on the facts of what we know right now between the Trump -Naralago documents and these Biden documents would be Espionage Act, right? That's 18 U.S.C. 793 and specifically subsections E and F, right. We talked about F with response. So 18 793F with a response to Hillary Clinton. That is, through gross negligence, whoever, being entrusted with any document related to the national defense, through gross negligence, permits it to be removed from its proper place of custody, or delivered to anyone else, or to be lost, stolen, or abstracted, or destroyed, shall be fined under this title or imprisoned not more than 10 years, or both. That's, that's, f- so the key phrase there is "gross negligence." E, the keyphrase is, uh, has a document and, uh, willfully retains the same, name, and fails to deliver it to the officer or the employee of the United States entitled to receive it.

0:24:55 Kel: Yeah. Gross negligence. Yeah.

0:25:44 Kel: F doesn't even apply here. Forget about the whole growth negligence factor, because that's not, you know, I explained it to someone as that's such a high bar. It's like, would a five-year-old do it with a five year old's understanding of national security policy? But

0:25:59 Andrew: I we we went through this was this was I think. Yeah. Oh you.

0:25:59 Kel: Yeah, I remember. Yeah. Yeah.

0:26:03 Andrew: So, you know, the dumpster cases and all that. So yeah.

0:26:05 Kel: Yeah. But That applies to authorized holders, and that's why it never works in these situations not at the time, because it was the transition. Now, if it, and so it becomes arguable, like... Like, you know, we don't know if he was an authorized holder. It's that sliver of time. When was it moved? Was it moved out at noon? Was it moving out at 11:30? Was it at 12:30? That makes all the difference for whether or not 793F was.

0:26:10 Andrew: Right. But wasn't the vice president an authorized holder at the time do Okay.

0:26:35 Thomas: Wow yeah

0:26:36 Andrew: Now that's bonkers, because how can the law be... How can the law offer greater protection for the spy than it does to the bumbling civil servant? Right, you're saying this criminal offense apply, and you're, are, certainly correct that 18 USC 793 f is "whoever, being entrusted with lawful possession or control, uh, gross negligence permits it to be destroyed." Why, you have unlawful possession, right? Unauthorized possession, that puts you under 793 e which requires specific intent, which requires that you... You willfully retain the information or refuse to to turn it over to someone that you've intended. How can the criminal system offer greater protection to the spy than it does to the bumbling civil servant?

0:27:05 Kel: Yes.

0:27:23 Kel: There's a few reasons for that. And that's sort of why you also get into the idea of the scienter requirement, which is, for the listeners, just weird, almost Mendre, greater than Mendre, what you should have known thinking of a factor. And in a lot of the espionage act, you don't have, they knew it was wrong, but they should have known that it was raw. You know, you had reason to believe that it was protected or that it wasn't prohibited or something like that. And so the reason you have that, and the reason that you have the greater protections for non-governmental people, is because they are, are non-governmental people. And so the Congress, way back in 1917, when they were writing this horribly written law, decided to say, "Look, there's going to be a hell of a vagueness, overbreadth, First Amendment effect here if we hold a random guy who picks up a folder marked top secret that he finds on the sidewalk to the same standards as a guy whose job it is to carry around boulders marked top secret." And so they did that.

0:27:25 Andrew: OK. OK, fair. Fair. Is why, I I, having you on, because I can, I I analyze these sections sort of in isolation, and I've done that. And you know, because, because this is your day-to-day job, you're able to sort of put it in contextually. And I I just never compared those two directly, directly, um, the basis of, uh, know, sort of imputed responsibility. But, uh, you put it that way, that that makes sense. Right?

0:29:06 Kel: This doesn't mean that everybody on the team gets off scot -free, because if you think about 793F and you say it has two parts, it has the gross negligence, allows it to be taken or destroyed through gross negligance, or knows that something has been taken and does not report it. So that means that if anybody at the White House that was still at the White House after it was taken knew that it was taken, they're guilty of 793F for not reporting it to someone.

0:29:09 Andrew: Oh, make sense, and that would apply to any Trump holdovers in the Biden administration, and also any Obama-Biden holdovers in the Trump administration, and certainly there were

0:29:40 Kel: Yep. As long as they were entrusted with it. Like if it was a janitor who noticed it, then no, because that wasn't his job. But

0:29:47 Andrew: Yeah yeah yeah okay Um, that makes sense. And so we're not going to wind up conducting the inquiry as to, you know, where these moved out at, you know, 11:30 a.m., or, you know, were they moved out afternoon, uh, because... Because for either purpose. Right. Some point, Biden was, you know, had lawful possession of those documents. Well, no, I guess if I, the order didn't come down until January 20th, 2017 at 12:30, then 793F would never apply to Biden. Yeah.

0:29:53 Kel: Yeah. Yeah.

0:30:27 Kel: Or it might be a staff. I mean, we don't know when we talk about Biden, and we, I think one of you, I remember who was, made this point earlier, that we say Biden, Biden, Biden, and we're really talking about Biden and the pyramid of people under him that were involved in this, the there are staff, you know, and if some of the 793 G or F thing that I just talked about where I said, you you know, if somebody knew afterwards, doesn't mean they had to be there at the time. It may not have been a holdover. If there was someone who discovered it in February, who started work on January 21st and discovered its absence on February 1st and did not report it, that person is guilty of 793F.

0:30:28 Andrew: OK. Yeah. Yeah, yeah. Oh, yeah, well,

0:31:14 Kel: And so you have this sort of, that's why they're looking so hard, I think. And And I think that's why they will continue to look into how this happened. Now, I don't think they're going to be pursuing a bunch of guys for 793F, but it's there. It's a possibility. Right now, I think their concern is more security related. Find out how did this happen? Make sure it doesn't happen again.

0:31:15 Andrew: Yeah.

0:31:38 Andrew: Yeah, so let's unpack both of those, the, you were, that again, correct, 793 F2 says, "Whoever, having knowledge that the same, that those NDI documents has been illegally, illegally removed from its proper place of custody, or delivered to anyone in violation of its trust, or lost, stolen, Stolen, abstracted, or destroyed." Right. So, so any of those three categories. Right, removed. That that seems to me to be a very high bar. Right? Delivered to anyone in violation of its trust, that requires you to know where it is. But the third, lost, stolen, abstracted or destroyed. Well, that seems not only.

0:32:00 Kel: Yeah.

0:32:10 Kel: Or lost. If it's not here, it's been lost, stolen, abstracted, or destroyed.

0:32:18 Andrew: I was just going to ask you that. I mean, that that seems like a negative inference that you draw. And so hasn't the National Archives, for example, already drawn that inference about the Trump documents?

0:32:19 Thomas: Hey

0:32:31 Kel: They knew that. That was why they started the whole thing. They said, hey, you wouldn't shut up about this love letter from Kim Jong-un, we don't see any love letters from Kim Jong-un here, you know, and so they, they knew that things were Missing.

0:32:33 Andrew: Yeah.

0:32:43 Thomas: There's this empty picture frame where the inscription says says kim jong -un xoxoxo what what should be here

0:32:51 Andrew: No, that that's that's exactly right. And so, you know, we have that. That's another issue that you raised that, you know, you've kind of elided over. You know, we've made the joke on the show that, you know Trump didn't move these boxes out to Mar-a-Lago himself.

0:33:07 Kel: Neither did Biden.

0:33:07 Andrew: You know, That will, right. And and so when it comes to Biden, we talk about the team associated with the vice president, um, folks who helped Donald Trump secret away these documents, uh, alone, there are folk, you know, Bob, who signed a certification, who cooperated with Trump in refusing to turn them back over on multiple occasions, and it, it seems like that ought to be a pretty solid prima facie case under 793F2, right?

0:33:08 Kel: Yeah.

0:33:40 Kel: If They were entrusted with it, and that, that's where you get into the problem of, like, Christina, Bob was not entrusted with these documents, you know. And so it does not require that if you, Andrew Torres, discover that a classified document has been removed, you don't have to report it, or else you'll be violating 793F. The first clause, someone entrusted with protecting documents and dealing with documents, has to be the person that both the first part and second part happened to.

0:34:16 Andrew: Through right Right, right, that makes total sense. So if I, let's say, let's put me in the dumpster case, right? So I am carrying bags of trash out to the dumpster, I lift up the lid, I look down, and I see the bright red security markings, the potential Espionage Act liability that I would face would be 793E, because I would have unauthorized possession of that document, uh, then if I have reason to believe it could be used to the injury of the United States on to it and fail to deliver to the National Archives or the employee of the United States authorized to receive it, then I could be charged.

0:34:44 Kel: Yeah. Retain it.

0:35:02 Kel: Or give it to someone else. I mean, there's still that willingly transmits part where if you turn around and give it to Charlie Savage at the New York Times, then you're guilty of 793E. I

0:35:04 Andrew: Yeah, right. Right, right, right? Yeah. Right. Okay. Sense, and how long are we talking about a special counsel, her, you know, doing his job and investigating into these Biden documents?

0:35:28 Kel: Think that we're probably looking at something much faster than the Smith investigation, if only because Smith was tasked not only at looking at tomorrow lago but also the whole January 6th, the insurrection kerfuffle, insanity, and that takes a lot of time to investigate. Uh Mar-a-Lago stuff, the document stuff, is sort of really easy to get the bottom of compared to soliciting insurrection. Her does not have that mandate, at least as far as I know. We haven't seen the mandate yet But I have

0:36:01 Andrew: Have we seen have we seen the mandate? OK, that that was going to be my next question.

0:36:04 Kel: Not, if it came out this afternoon, I haven't seen it yet. As of taping, the mandate has not been read by anyone talking about it here. And, but it's still going to be, logic can dictate that, you know, Lausch suggested the special counsel. Lausch was only looking at spillage of classified NDI documents. And so his recommendation would have logically been about the stuff that he was looking into. And so when Garland goes and follows LaRouche's recommendation and expressly cites to it, it logically follows that it's still the same universe of potential counts, potential crimes, potential liabilities.

0:36:54 Kel: And so you're not going to look at this wide ranging investigation that has to be carried out. You're going to look at finding out how documents got from point A to point B, who was involved, why it happened. And once you nail down all of that, see if there's any way to blame. And if there is not anybody to blame, then propose ways to fix it that are not legal, that are practical and security related.

0:37:20 Andrew: You say that are not legal. I tell me what you mean by that.

0:37:23 Kel: So I, you, I was going to be talking about Bo again, in. So Bo put up this idea of maybe we need a counterintelligence filter team as part of the transition team, somebody who, that's their entire job to look through all of the personal documents that are taken home by the president and vice president and look for classification markings, just to make sure that things don't accidentally get tossed in there, the way that this happened, the way that if we give the Trump team the benefit of the doubt, I'm sure some of those documents that they found in Mar-a-Lago were not intentionally put there.

0:38:00 Andrew: Uh-huh. Yeah.

0:38:02 Kel: And so that, as I said, giving them the benefit without. And so finding out, A, the people who tried to sneak him away, and B, the people who just got stuck to the bottom of the folders, something. And that's a security thing, that's not a legal requirement, that's not a illegal remedy, it is a practical solution to a counterintelligence nightmare. Yeah.

0:38:01 Thomas: Yeah

0:38:26 Andrew: And that would remain consistent with the Presidential Records Act, right? It would not interfere with the president's authority to designate materials as, you know, personal versus official records, but it would provide kind of just a second layer of information of, oh, hey, we're, we're reporting. You're, you're saying this is a personal document. It bears a classification marking. You take another look. Make sure.

0:38:31 Kel: Yeah.

0:38:54 Kel: And way I would build this out, and to be fair, some of this analysis I'm doing sort of on the fly as we talk, but I would say, you know, that the procedure would be that if you're on the filter team and you find something stamped confidential or SCI or SAP or whatever code you want to put on it, then you take it to the person, you take to Biden or his agent, you take it Obama or his agents or Trump or whomever, and say, this was identified, was Was it put there intentionally? Not, we're going to take it back. If yes, then that triggers your responsibility to give us a good reason that you have it.

0:38:55 Andrew: Yeah.

0:39:41 Andrew: And also that would make the criminal prosecution of a Trump like case in the future a lot easier.

0:39:47 Kel: Much easier.

0:39:48 Andrew: Right. Right. Because, yeah, you would have have prima you facie evidence of, you willfully refusing to turn it over. Although, I mean, we have very good evidence in this case. So I to ask kind of the terminal political question, and I guess I'll frame it this way, which is if it turns out that Biden did something wrong, documents, right, was trying to secrete something away. If are things that rise to to the level of a potential uh espionage act 18 USC 793 e offense I think we're all on board with great then prosecute by right is zero evidence of that right now this looks like you variety oh there was a mistake and the second there was a mistake we fully and uh complied went you know above and beyond the call of duty to You know, kind of make sure that that the proper procedures were followed. Suppose that's the case. Right. So, again, knowing that if it's not, we all want justice to be done.

0:39:48 Kel: Yeah. Yeah.

0:40:42 Andrew: We all want the rule of law to be run even against a Democratic president. Isn't it? Then suppose that again, I think this is not a huge supposition that, you you know, we have the evidence is what it is from the Trump Nara Lago case. Right. Stonewalling, lying to Nara, refusing to turn over documents, having your lackey sign a false certification that all the documents have been returned when they haven't. And having dozens of boxes recovered as a result of a search warrant as last resort, because we've exhausted the asking you nicely part. I think the concern that Thomas articulated at the start of the show was this this is certainly going to be run through Fox News as well. You know, see, they both do it. And that's why Biden is worse than Trump. Right. Like that's the Fox News playbook. We do to kind that distinction to say? And something that can be made clear to your Joe Manchin voter, the rapidly swing voters in the suburbs that will ostensibly determine the 2024 presidential election? How much is this going to work as a smokescreen? Yeah.

0:41:24 Kel: Yeah. I They're definitely going to use it. I think the job of the people who are, you know, the ones in the middle, the one to like, you know, y'all are and presumably a lot of the reporters are who are not working for Fox News are to inform and make sure that the public is informed and knows all the facts is to say, you know, at best, they both suck. You know, at worst, they are both criminals who did these things. And again I'm presupposing that everything you say is right and the evidence is there, you know, that every that Biden did everything wrong here, then it's only fair.

Like, I, I think that I would be intellectually dishonest if I came out and said no, no, no, Biden should get off, I can still say Trump was much worse. That's like saying that, you know, someone who kills 10 people is much worse than someone who kills two people, you know, but they're still guilty of a crime. And so you have to put that out there and just sort of deal with, you know, if Biden runs again and happens to run against Trump, then and both of them get the nods from their respective committees,

0:43:09 Kel: Then yeah, you're gonna have to go with which one is less of a crook, but

0:43:14 Andrew: I but I want to ask the reverse situation, right, which is the special counsel appears to exonerate Biden. Right. Like what what happened was pure carelessness by ex staffer that nobody knew about and inculpates Donald Trump. Confident are you that that message can be made since since, you know, the thing they both have in common are national security documents turning up in stupid places. Right. And and today it is, you Know, also in a garage right

0:43:16 Kel: Well, Yeah.

0:43:49 Kel: Yeah.

0:43:49 Andrew: Next to a Biden sports car or something like that. Right. Like I going to have some persuasive power. How is there a clean kind of legal way to make it clear that, between those two cases, or it just I going to be two different special counsel reports, and if one says yes and one says no, that, you know, we're just kind of relying on that uh at which point, you know, the special counsel turns out to be a good thing after all.

0:44:13 Kel: Yeah. I mean, I think that the question that you're not asking, you know, that is sort of at the core of this is, you how do you inoculate against bad faith? The answer is you can't. You can't completely protect against. If he's guilty, then don't elect him, and if he's innocent, don't elect him. Best you can do is say, look, make sure that her does a thorough job and sort of checks all the boxes and follows all the geese, and make sure that Smith does the same, and say, look, have them stand behind findings and show, show the public, just like you would show a jury, if the evidence supports nothing happened here, then it would be wrong for us to indict someone. Would you want to be indicted if the evident showed you didn't do anything wrong? Well, then why should Biden?

0:44:21 Andrew: Oh. Answer that one too, definitely yes. Oh. Yeah.

0:45:26 Kel: Basically make it about that. Say, we got, trust the evidence, and you can read the evidence on your own. Here's a big report, you can do your own research, read it, reach your own conclusions, here's what we reached, yeah.

0:45:40 Andrew: I Like it, uh, any anything else you want to ask, okay.

0:45:41 Thomas: Well other than we got a real hers on first situation with this special prosecutor I've been confused several times uh but um I just as I always do maybe uh ask for predictions here from our expert you is it too early to know you just need to see kind of the facts of what happened or do you have any predictions for what went on and what might happen as a result of this is

0:45:47 Kel: H.

0:46:03 Kel: Not, it entry first, I

0:46:06 Andrew: Know what that's that's fine I to say that an early special counsel report, that report comes out before the Smith report, and that it exonerates Biden of any wrongdoing under the Espionage Act. That's prime for you right there.

0:46:24 Kel: That I largely, I largely agree with you. I think that it will be couched in a little bit of sort of lawyerly, weasley language. Like, it'll say, we looked into all the evidence to the extent that we could look into a sitting president. And they're going to even even.

0:46:44 Andrew: Yep. I

0:46:43 Thomas: Yeah or will be a james comey -esque speech of like it was extremely careless what he did you know that can all

0:46:46 Kel: Yeah. Yeah, yeah. And I think that, you know, even if there was no evidence, even if they were allowed carte blanche to go through and investigate everything, this is where I think the potential bias that you talked about by having someone who was conservative for so long might come in, where just like the The little subtle dig, the implication that there was something less because it was a sitting president. Even

0:47:17 Andrew: I want to I want to endorse that, you that's not inconsistent, but is puts a gloss on my prediction that I I want to I want to endorse and I want to say that what Republicans will do would be the exact opposite of the Mueller report, like they will cherry pick the worst sounding bits from that and that will hang like a cloud even though the top line will say, you know, to the extent that we could do that, that, you know, that we find, you basis if this were a traditional charging decision to, you the vice president, you have a former vice president and now sitting president. Although we note that such decision would not be within the scope of our authority and then. And cite back to the OLC memo. So I that little to maintain some pessimism in this world of optimism. That you'd like to plug that we can give you a shout out for? Thanks for coming on the show to help break this down.

0:47:35 Kel: Yeah, should leave Twitter and the hellscape that it is and come to Mastodon with me.

0:48:24 Thomas: Your tusk or what I don't know what mastodon what's what's your handle boy

0:48:27 Kel: So the same N -A -T -L -S -E -C -C N -S L -R -S at M -S T -D -N dot social and come see me on Mastadon.

0:48:35 Thomas: That's so user -friendly and easy to

0:48:39 Kel: Oh, I know, right?

0:48:39 Thomas: Uh why don't you send me that and I will put it in the show notes I don't know mastodon I don'T KNOW IF MASTODON'S THE FUTURE BECAUSE I ARE JUST FROM THAT PLUG I ALREADY AM SO CONFUSED ABOUT WHAT TO DO NO I'M JUST TEASING 'LL I PUT IN THE SHOW NOTES FOR EVERYBODY

0:48:44 Kel: Will do that liking liking Spoutable the thing that Bot Sentinel the Christopher Bowsie is putting together called Spoutabel is looking very promising because it's basically all the best parts of Twitter without all the so I

0:49:06 Andrew: Nazis? Yeah.

0:49:06 Thomas: ALL RIGHT WELL THANKS SO MUCH AGAIN KEL FOR THAT BREAKDOWN AND I IMAGINE THIS COULD BE ONGOING WE 'LL SEE WHO KNOWS WE MAY SEE YOU BACK SOON ABOUT about this all

0:49:15 Kel: Don't think anyone will ever talk about this ever again you for having me y'all have a good day you

0:49:19 Thomas: Righty

0:49:19 Andrew: All right. Thank you so much.

0:49:25 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:49:31 Thomas: Now it's time for thomas or something uh me the guy just the guy and all the wealth of knowledge of the entire human race will attempt to take a bar exam and so far I'm beating the other thing so I feel pretty good about that

0:49:46 Andrew: Yeah. So far, you are smarter than the singularity. So hard to do better than that.

0:49:52 Thomas: May want to just retire right now uh let's hear it let's see if I can keep up this impossible possible task I'm like what's that old thing with the guy and the train and the the what is that you know the train he's laying down the track as fast as the machine and he's you know what is that old old thing no

0:49:55 Andrew: Yep. Yeah. I have no idea. This unstoppable force immovable object or?

0:50:13 Thomas: The guy it's man versus machine he outworks the machine to play the train track this is an ancient old thing that everybody what is that the that's me I'm

0:50:14 Andrew: Oh. Yeah. Enough, that's You way to go. All right, Thomas. City College ist funded by th county government of State X. City College issues an email directive that all employees disclose all social club memberships at the start of every school year. Yes, the bar will often have the same fact pattern for multiple questions. So here we go. The purpose of the directive is unclear. Most employees make the disclosure for fear of losing their jobs. But a college accountant challenges the directive as non -mandatory. New question for today. Can the college accountant call one of her fellow employees to testify that the directive was distributed only by email? A. No, because email is not a proper forum for college instruction.

0:51:09 Andrew: B. Yes, because it is relevant. C. Yes. Because it is irrelevant to the issue of state action. Or D. Yes because it is relevant to whether it was advisory or mandatory.

0:51:08 Thomas: The oh god oh boy uh of all I was thinking of john henry is that story famous uh very famous story exactly I don't know why why that was so hard to communicate but it's john and then he and his heart gives out right he wins but then he then he dies of exhaustion that's gonna be so the end of t3be I'm going to be like I bested the robot I'll just pass away. That'll be how it goes. So we got the same fact pattern, which was, you know, last week was the whole government -y infringement on freedoms thing. And then we take a zag and it's like an evidence question. Seems It to me. Let's see. So, man, these are so hard. I'm going to try to be precise in what this testimony would do. Do. So I think that's usually the tough part of these evidence questions or hearsay or whatever it is. It's the same fact pattern, the email directive, and it's asking, can the college accountant call one of her fellow employees to testify that the directive was distributed only by email?

0:51:23 Andrew: Yeah, he's a steam driving man. Yeah, that's right. Exactly. All

0:52:21 Thomas: Trying to think what this would matter for. Like, I guess if, I don't know, you're trying to counter the claim that like, oh yeah, there was an email, but also there was a, a some it was clarified uh verbally that it wasn't mandatory, I don't know, could maybe that's what you're trying to do, uh, counter. And then, you know, you're saying no, it was only email. So that's what, I'm, yeah, I have a hard time, what, figuring out what this even is. But is there a reason you wouldn't be able to do that? Well, let's see, best evidence rule. I don't know, here's, uh, the accountant, seems like the college accountant could just say that, but maybe you want, do you want to have more, more than one person say that? Maybe the college accountant could be, maybe power numbers kind of thing. I don't know. Why, why wouldn't, I don't know. Okay. Can you call your fellow employee to testify that the directive was just, was distributed only by email? Okay. A, no, because email is not a proper forum for college instruction.

0:53:11 Thomas: That can'T be right. So A seems like nonsense. I'm, I'm moving on. And so the answer is a yes answer. So we know that much because the the last three are yeses. B, yes, because it is relevant. That's, I mean, that's a very, very, very broad standard. So, that would be under the idea that, yes. This is just like very basic evidence -y stuff. Like, yeah. Relevance is like the bare requirement for just testifying about something. I don't know. Just getting testimony about anything. Could be B under like a, yeah, obviously. That's kind of how I felt about this. It's like, like, yeah, why couldn't you do this? C, yes, because it is relevant to the issue of state action. Now that's, that's a little bit of a curve ball there. Is a little tricky because on one hand, I don't like that answer because whether or not the directive was distributed only by email, to me, doesn't speak to the question of state action because either way it's state action.

0:54:04 Thomas: Like whether they said something or whether they emailed that you've That question, that fact is not at issue in this testimony. So I don't like C for that reason. But on the other hand, I'm worried that this one of those things where it's like, yeah, but it's kind of related. It could be related to that in a very basic, bare bones way. Like if the fellow employee is saying, yes, the school emailed me this, then yeah, it's kind of relevant to state action. So I'm a little worried about that. Because like I said, logically speaking, whether or not it was distributed only by email doesn't seem to me to matter one way or the other on state action. So I could go either way on that. I'm a little 50 -50 on C.

0:54:50 Thomas: D, yes, because it is relevant to whether it was advisory or mandatory. Be. I mean, the facts as stated, I don't think it is. The facts as dated, it's like, no, it is not. It's, you know, the emails, the email. It's pretty obvious that it's mandatory, but I guess I could postulate some, I could hypo some facts where it's like, well, the school, the college is insisting that they verbally told people, no, it's not mandatory or something. And therefore saying that it was only distributed by email is a way of defending against that, is away of saying, no it was mandatory because this is the only communication we got on it. So, I mean, I could kind of backdoor that in. So I'm really unsure how to go with this.

0:55:35 Thomas: Know, I think I'm between B, C, and D. I think I'm leaning away from B now because I feel like, I think that's just too broad. I think it is relevant. It's kind of, it's not really, I don't know, it just seems really broad to me, like too broad. Could be wrong. That could be like the default catch-all answer. So I'm between C and D, and I think I'm going to go with D because I could, I could imagine this being relevant to whether it's advisory or mandatory because, you know, maybe there were some other directives verbally, I don't know. Whereas C, it just doesn't seem relevant to state action because either way it's state action no matter what. So, I'm, I'm between, honestly, I'm between either B and D and C and D. I'm not sure, but one way or the other I'm going with D, and I guess for second chance purposes I'll say I'm in between C and no, I think I'm gonna say I am between B and D.

0:56:27 Thomas: I'm choosing D. Now, let's type it into the robot. See what the robot says. Right. Here's GPT's answer. And again, I do think we should get GPT explanation in here because that's what, if I was taking it with any human, we would get that. You know, we wouldn't make the human wait to explain their reasoning. And now that we've already proven that GPT is very fallible, it doesn't mean that this is the answer key. You know. So I don't think it's spoilers in anything. So here is Chat GPT answer B. They went with B. Yes, because it is relevant. Relevant. Reasoning is the college accountant can call one of her fellow employees to testify that the directive was distributed only by email because it is relevant to the issue at hand. The fact that the directive was distributed only by email is important in understanding the nature of the directive and whether it is mandatory, advisory.

0:57:14 Thomas: So that is my answer. That's interesting because that kind of happened last time too, where it had a sentence in there that kind of said it was my answer, but it still went with B. Anyway, Chat GPT continues. Additionally, additionally, the fact that the directive was distributed only by email may also be important in understanding the intent of the directive and whether it was truly intended to be mandatory or not. Therefore, it is relevant and the accountant can call a fellow employee to testify about it. Boy, it sure feels like that's an explanation for why D is the correct answer. But they went with B. So weird. We'll see how that goes.

0:57:44 Andrew: All Right, and if you, you want to play along with Thomas and the chat bot, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore. We will pick a winner and share that winner with never-ending fortune, fame, fame and fortune not guaranteed. I

0:58:02 Clip: And thank you, Let's go!

0:58:04 Thomas: Now it's time to thank our new patrons at patreon.com/law. And I'm going to start us off this time. And of course, ad -free episodes, a huge benefit. Most, off. Thank you to Ex-Garden Gnome, Matthew Maxson. Oh, Matthew Maxim. And long time no see.

0:58:17 Andrew: Matthew, Max, and welcome back.

0:58:19 Thomas: Jill Manion, Brycipoo, Eli Richardson, JT Crews, Nathan Gundlach, Annie B, Andy Costco, Sheri, Pudding Pouch, Read Worm By Wildbow, or I don't know if that's how you pronounce it, but Wurm. Interesting.

0:58:33 Andrew: All right.

0:58:35 Thomas: Okay. Your turn, Andrew.

0:58:36 Andrew: And welcome aboard Klytaimnestra Tyndarides. I hope I got that right. Lexi Holtzer, Scott Riegel, Christine Ingleton, Ryan Williams, Hochachot Chotchcot means Conclusive Evidence in Hebrew. Schatzi Olsen, Kathleen Ellis, Traditional Elven Greetings. John E Helmer, Dany Schwarz and Kevin Day. Thank you all so much for supporting the show over patreon.com/law. We really appreciate it. Couldn't do the show without you.

0:59:09 Thomas: More quick note here. Um, posting a bit of a want ad or whatever. Um, I think I'm getting to the point where it's, I may need some help with the editing. Uh, can't really relinquish control of that anymore, I've decided that. But it could be very helpful to have someone to help me do a first pass. Uh, so I'm, I'm asking for, uh, to email Thomas at SeriousPod with the subject, uh, editing or something like that to indicate it. And I, one of those things where because I'm already overwhelmed, there can't be much of a process of doing this. So I basically need somebody who is willing to work within Ableton already and is familiar with it and knows how to do it. And bonus, if you also are familiar with iZotope or have iZotope software, that would make it easier as well.

0:59:55 Thomas: So shoot me an email if you're interested in helping out. And of course that's a paid position, Not an thing, but help the show and help me maintain my sanity in these trying times. So shoot me an email. Thomas at SeriousPod. And thank you for considering that. So much for listening everybody we'll see you I

1:00:13 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.

1:00:46 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.

1:01:29 Andrew: Enough that's