Advisory Opinions - Rod Rosenstein Talks Special Counsels

Episode Date: January 24, 2023

If somebody understands the challenges of appointing special counsels, it's Deputy Attorney General Rod Rosenstein. He joins Advisory Opinions to talk (and reminisce) about DOJ drama. Also: Sarah and David have some tepid SCOTUS updates. Show Notes: -NYT: Investigators Seize More Classified Documents From Biden's Home -The Dispatch Podcast: The Biden Files Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker and with a special guest. Opinions Podcast. I'm David French with Sarah Isker and with a special guest. We were talking last week with all of the special counsel news. Is there a guest we could find who would have some knowledge, some brief fleeting experience with special counsels to share with our listeners? And Sarah had an idea. So Sarah, do you want to introduce our guest? Well, you know, there aren't too many people who have actually had special council experience in that sort of post-independent council world. And so we really just were

racking our brains, David, to see if we could come up with anyone. But I found someone. Thankfully, he went to Harvard Law School, clerked on the D.C. Circuit for Judge Doug Ginsburg, has been in the Department of Justice forever. I don't think there was a time when he didn't work at DOJ. He then became the United States Attorney for Maryland. Is this starting to sound familiar to anyone? Then he stayed on as U.S. Attorney. He was appointed by President Bush, stayed on during President Obama's time. And, drumroll, he became Deputy Attorney General in the Trump administration. And after a

little bit of a recusal, la la la, he became Acting Attorney General over certain matters that were being investigated by the Department of Justice. And during his time, he actually appointed a special counsel named Robert Mueller. Rod, thanks for being on the show. Well, thank you, Sarah and David. I enjoy listening to your podcast. I'm glad to be on it. And you're a regular, you've left the department.

You're a lawyer lawyer now. I'm a private practice lawyer. That's right. After having spent 27 years in the Department of Justice. As I said, the Department of Justice didn't exist before you worked there. I actually do think it's worth running through a little bit of your career background at DOJ because you do have a different, I think, background than a lot of, you know, white-collar partners, obviously, at law firms.

But even at the Department of Justice. I mean, frankly, for instance, most people coming out of appellate clerkships don't go into the tax division. They don't work for Ken Starr. I don't know. How did you make some of these career decisions? I don't want to take all your time, Sarah, with my biography, but when I graduated law school, I clerked for Douglas Ginsburg in the D.C. Circuit. I then joined the Department of Justice Public Integrity Section in 1990. And the significance of that is the Public Integrity Section was the locus of independent counsel activity. When independent counsels were appointed under that regime, which ended in 1999,

the Public Integrity Section was responsible for the preliminary investigation that resulted in the appointment of independent counsel. So I saw it from that perspective. I then, the next significant job that I had was working on the Whitewater Independent Counsel investigation. So I actually had the experience of being inside an independent counsel investigation. I was on that investigation from 1995 to 1997. I then became an assistant U.S. attorney in Maryland, a supervisor in the tax division, the Justice Department, and ultimately, as you mentioned, United States attorney. Well, not ultimately. You had some jobs after that. We don't talk about that one. Okay. So let's fast forward to acting Attorney General Rod Rosenstein, you're overseeing the Russia investigation,

obviously the independent counsel statute is gone. Walk through just the statutory, like how does one in the Department of Justice think about appointing a special counsel, of course, with an eye towards what's happening right now? Yeah, I think, Sarah, there are a lot of misconceptions about that, and it's worthwhile to just go through some of the history. Special counsels, that is, attorneys appointed from outside the department for the purpose of taking over sensitive investigations, have been around for a long time. The first one was appointed, I believe, in 1875. There was the Teapot Dome Special Counsel in 1923. And of course, most famously, the Watergate Special Prosecutor, who was a former special counsel. 1923. And of course, most famously, the Watergate special prosecutor,

who was a former special counsel. After that, Congress adopted the independent counsel statute. And that was significant because under the independent counsel statute, there was a mandatory appointment of an independent counsel, number one. And then number two, of course, that independent counsel was not subject to day-to-day supervision, really to any supervision by the Department of Justice. So that was a very different beast. It was appointed by the court, not by the attorney general, was accountable to the court, not to the attorney general. And that resulted in a fair amount of controversy. And ultimately, following the Iran-Contra investigation, which was conducted by an independent counsel, and then the Whitewater independent counsel, which dragged on for many years and wound up

encompassing a variety of different allegations, Congress allowed that independent counsel statute to lapse in 1999. So it was in 1999 that Janet Reno adopted a formal regulation for appointment of special counsels. Again, a concept that had been around for a long time, but it had not been codified in the DOJ regulation. So what are, if you could list the differences between special counsel and independent counsel, just very basic differences, and how do they play out? How do those differences play out practically? In other words, is there a day-to-day substantial difference between special counsel, independent counsel? What's the most consequential aspect of the differences? One of the most significant differences is that the threshold of the

appointment process and the rationale for the appointment. Again, under the independent counsel statute, there was a preliminary investigation done by the Department of Justice, but the appointment was mandatory for people who were in high-level executive branch positions, cabinet members, for example, in addition to the president, members of the president's campaign team. Under the statute, if during that preliminary investigation, the attorney general was not able to determine that a further investigation was not warranted, then the appointment would be made. So it was really a hair trigger, and that resulted in a number of appointments. I think we had about a half dozen special counsels during Janet Reno's

tenure in office in the Clinton administration, most of which did not result in prosecutions, but because they satisfied that hair trigger, they resulted in appointments. Under the special counsel statute, appointment is not mandatory. And there's some confusion about this when Attorney General Garland announces the appointment. He often says, or in the two occasions when he's done it, he has said that he felt the appointment was required by the regulations. That's not technically true. The regulations say that the attorney general will appoint a special counsel

if three conditions pertain. Number one, criminal investigation is warranted. Number two, there's a conflict of interest or other extraordinary circumstances. But number three, if the attorney general believes it's in the public interest, which means that's really a discretionary decision by the attorney general. So that's one of the key differences. And then, of course, once the appointment is made, a special counsel remains accountable to the attorney general. And so a special counsel is not fully independent of the Department of Justice. And unlike under the independent counsel regime, it's the attorney general. And so a special counsel is not fully independent of the Department of Justice. And unlike under the independent counsel regime, it's the attorney general who takes responsibility for any prosecution decisions made by a special counsel.

Do you feel that we are seeing this surplus of special counsels in the last few years because there's, you know, punting of the ball by attorneys general. I'm guessing you're going to say no to that one. Because we're just, it's just unique because two of them have involved Donald Trump. One involves the sitting president. And so we shouldn't think much about it.

Or is the Department of Justice over-reliant on the special counsel reg? What's happening? You know, it's hard to judge from the outside, Sarah. I think that if there's an allegation, a credible allegation against the president, as there appears to be with regard to the Biden documents case,

you could certainly argue that that's a, that there's a need for a special counsel in that kind of case. The Trump appointment, I think, was more in a gray area. It's a situation that had never arisen before. The attorney general obviously felt that it was important to appoint a special counsel, but I think that one falls into a gray area. So too does the appointment of John Durham by Bill Barr really fall into a gray area as to what was the justification, the need for a special counsel, as opposed to, again, the alternative is not no

investigation. The alternative is investigation by an ordinary Department of Justice prosecutor. And I think it warrants some thought about, you know, when to pull that trigger because there have been different approaches adopted by different attorneys general. You're generally against is the wrong word. I mean, you're still probably the appointor of the most famous special counsel in DOJ history, but you're not in favor of a bunch of special counsels running around. You really like work to be done inside the department, within the department's chain of command. I do. In the independent counsel area, there was a famous case that's, I think, still studied by con law students, Morrison v. Olson, which was about the constitutionality of independent

counsel statute. And the statute was upheld in that opinion, I believe it was seven to one, but there was one dissent by Justice Scalia who wrote, I thought, a very perceptive analysis of what the problems are, the potential problems that are raised when you have a prosecutor devoted to purely one subject or one person, I think it's suboptimal. So I think that the independent counsel, the special counsel or independent counsel ought to be reserved for really extraordinary cases. And generally speaking, we ought to leave these investigations to the ordinary prosecutors in the department who have to balance their work with other matters and who have an array of different considerations and different pressures and are not free to investigate to the end of the earth in one case. Now, I think that Bob Mueller did a superb job,

whatever you think of the outcome or his final conclusion, of wrapping it up quickly. You know, that was an extraordinary amount of work to do in just two years. You know, often independent counsels took longer than two years, even for simple matters. You know, there was a minor one at the end of the Bush 41 presidency where Bill Barr, back in 1992, appointed a special counsel to investigate what was known as Passportgate. It was an allegation, somewhat frivolous, that the State Department employees had inappropriately accessed Bill Clinton's passport information. And that one took more than two years for the independent counsel to decide not to prosecute at all. So I think what Bob Mueller accomplished in a limited

period of time was pretty significant. But you really do hope, particularly when it's an investigation involving the president, that it can be resolved quickly and ideally before the next presidential election. So one thing that was an issue during the Mueller investigation, continues to be an issue, is what is the nature of the supervision that the attorney general or the acting attorney general for this purpose exercises over a special counsel? Would you sign off on each and every prosecution, for example, brought through the special counsel's office? Or the budget, how many attorneys that the special counsel can hire? What is the degree of supervision that is typically exercised, both as a matter of prosecutorial discretion when charges will be filed, or even as basic as how big can you make your office? How much can you bulk up and staff up

to pursue the mission? Yeah, I think, David, that if the special counsel hired an excessive number of people or carried on for an extraordinary length of time that the attorney general or acting attorney general might get involved in that sort of thing. But typically, I think they do not. You know, they leave that kind of operational decision in the special counsel. And the oversight is really just a significant, really significant decision. So, for example, in the Russia special counsel investigation, there were a number of guilty pleas. They were relatively routine guilty pleas. You know, people came in with their lawyers, wanted to plead guilty. There was no need to elevate that. But then occasionally there would be issues that were controversial. At one point, the president's lawyers actually came in to

complain about a particular step taken by the special counsel. And so we gave them an audience. My view was that you ought to run it just like you would run an ordinary DOJ investigation by a United States attorney. The United States attorney has a fair degree of discretion, but on really significant matters or matters where somebody is aggrieved, they have the right to seek review. I thought that was very important. There was a lot of criticism of my appointment from certain people on the right who thought it was like an independent counsel, and it wasn't. There was appropriate oversight. who thought it was like an independent council, and it wasn't. There was appropriate oversight.

It was actually analogous to those many special councils who have been appointed over the last century and a half without much controversy. And so I thought it was really important to have that kind of oversight. And so we did get regular reports from the special council. We were never in a position where we had to overrule them, but it was a theoretical possibility. One of the most important people on your team overseeing the special counsel was a guy named Rob Herr, who served as your pay dag, which we've talked

about on this show, principal associate deputy attorney general. And Rob has a new job as of last week. He is now the special counsel overseeing the Biden documents investigation. I'm wondering if you have any advice for him. I mean, Rob worked for you a lot, by the way. He worked for you when you were U.S. attorney. He worked for you when you were deputy attorney general. He then went on to be U.S. attorney in Maryland. So there's a lot of like Rod and Rob career overlap. Right. Well, that's a credit to Rob Herr, Sarah. He's an extraordinary lawyer. He was hired as an assistant U.S. attorney on my watch

in Maryland, I think around 2007 and served in that job for seven years. When I became deputy AG, I reached out to Rob and encouraged him to apply for that position. And as you know, Sarah, in the Department of Justice, the more adjectives you have, the more important you are. So Rob is the principal associate deputy attorney general,

which is three or arguably four adjectives, depending upon how you construe it. I know that's a topic you've talked about before, but Rob is an extraordinary lawyer, well-respected by all. He subsequently, after serving as pay dag for about 11 months, he then became United States attorney, did a superb job there. So, you know, Rob has the ideal profile for this sort of appointment. That doesn't insulate you against criticism. I mean, you know, people like Ken Starr and Bob Mueller had the ideal profile for the appointment too. I think it's just inevitable you're going to get criticized either from the left or the right or both when you're in this sort of job. But Rob is certainly

as well prepared as anybody to handle it. So just going back in history a little bit, you talked about Morrison v. Olson and the Scalia dissent, which was a very powerful dissent. But what do you think was more influential than letting the special counsel regulation lapse? Was it that Scalia's just incredibly powerful reasoning reached Congress and pricked its constitutional conscience? Or was it that both parties had been subjected to enormously lengthy, expensive, and intrusive independent counsel investigations? And they were more than willing to let this thing go. It's certainly the latter, David. You know, Ken Starr, who ran the Whitewater investigation, not for the entire period, which I think wound up close to a decade, but for much of that time, he was not a fan of the independent council regime.

And he advocated against reenacting the independent council statute in 1999. But he did the job to the best of his ability. But I think everybody recognized the vulnerabilities. Everybody recognized the vulnerabilities. And I think ultimately, if you go back and read that Scalia dissent and Morrison v. Olson, it was really perceptive and really predicting the kind of problems that would arise under the independent counsel statute. And so now that you've overseen a special counsel, and I mean, it's really hard to compare them in some ways, because I feel like the Russia investigation and the Robert Mueller special counsel team was under just so much more media and partisan scrutiny than the two special counsels now are. It's not good or bad.

It's just a sort of factual statement, but I'm curious what you feel like you learned through those two years, what you think should be changed, what lessons you would pass on to the Department of Justice from that, anything you wish had been done differently under your watch as you look back on it, whatever that may look like. You know, Sarah, when Ken Starr was appointed, there was a lot of controversy. There was a lot of criticism that Ken Starr was appointed, there was a lot of controversy. There was a lot of criticism that Ken Starr came under. He was attacked in the media. There were attacks that were launched by White House aides. But it was a remarkably different era, you know, the early to mid 1990s. The Internet was in its infancy. There were, you know, three or four

national media networks, and that was really it. So, you know, the volume of criticism that people in public office come under today, not just special counsels, but anybody in prominent positions, is really just extraordinary and overwhelming. And I think you really need to be prepared to withstand that. As I think Bob Mueller was, he just ignored it. And I think Rob Herr will be as well. You know, he recognizes what kind of criticism he's going to face, and he understands the need just to do the job. And I think at the end of the day, you know, you recognize that you're going to be criticized for this kind of work, but you need to be confident that the work that you do

and your conclusions will withstand the test of time. And I think that that, you know, that's the challenge that Rob Herr and Jack Smith face right now. Just on a, I know this is speculations, and so all necessary caveats apply. It's, you know, you're talking about the Mueller investigation with a two-year time horizon as being relatively short. It strikes me as the current Trump special counsel, with him actively running, a two-year time horizon sounds a little long.

Right. Do you have any, again, I know this is speculation, but I'm sure the special counsel is looking at the clock and cognizant of the circumstances of the appointment. Are you anticipating that he'll wind down, that there would be, well, at least feel intense pressure to wind down in the 2023 calendar year or before the voting starts?

How do you think that's going to play? I would hope, David, that the attorney general has encouraged both special counsels to expedite their investigations. You know, there are different postures. With regard to the Trump investigations, which, of course, on the January 6th investigation is probably much more complicated than the document investigation. But it had been ongoing for some time.

So the special counsel is not inheriting a blank slate. A lot of the investigative work has already been done. Now, with regard to the Biden matter, it seems relatively discreet. I mean, you never know where the leads may take you, but it seems relatively discreet. where the leads may take you, but it seems relatively discreet. I mean, the issue is who packed the boxes and did Joe Biden at any time in the past six years, you know, realize that he had classified information or even longer if some of those documents predate his vice presidency. But that's a relatively discreet matter. So, you know, ideally for a special counsel focused on that particular matter, you'd be able to resolve it

expeditiously. The challenge that Ken Starr faced was that his investigation expanded over time. And it wasn't his fault. I mean, Attorney General Reno kept adding more and more matters to his portfolio. I thought it was important with regard to the Mueller investigation to keep focused on what the investigation was really about, which is, was there Russian interference with the election? Yes. Was there evidence that the Trump campaign was conspiring with the Russians? No. Those were the primary issues. Obviously, the obstruction issue occupied and continues to occupy a lot of public attention. But that investigation remained focused on the issues that mattered. And I think that Attorney General Garland, hopefully having had the experience and the knowledge of all these past investigations, will keep those special counsel focused.

the knowledge of all these past investigations will keep those special counsel focused. And yes, you know, encourage them to wrap up matters in 2023 if they can. And obviously, you know, issues arise and it's unpredictable if you find other people who special counsel determines need to be prosecuted. That can occupy additional time. But I hope, and one of the benefits of having the special counsel engage full-time in this is that you provide additional time. But I hope, and one of the benefits of having the special counsel engage full-time in this is that you provide additional time and resources and incentive to wrap it up quickly. Ken Starr, when he started Whitewater, was only doing it part-time. Merrick Garland, I think to his credit, has insisted that Jack Smith and Rob Hurd give up all their other responsibilities and focus just on this matter. One of the many, many things that I learned from you

at the Department of Justice, and that we, you know, debate's a strong term because that implies that at any point we were on equal footing, but nevertheless. I always encourage debates. You did. But when I try to explain what goes on at the Department of Justice, I think this is such a important point that you've made before, which is the department doesn't just bring cases against people they believe are guilty. It brings cases against people they believe they can win a guilty verdict against at trial. And that distinction becomes important and it's not in the statute anywhere.

And at the same sort of token of this, of like beyond the statute of the crimes, you have, as David has pointed out many times, Jim Comey giving the press conference in 2016 where he says, the statute says this about Hillary Clinton and like, well, maybe, maybe, but I looked back at all the other cases that the department has brought where he says, the statute says this about Hillary Clinton. And like, well, maybe, maybe.

But I looked back at all the other cases that the department has brought and these other non-statutory factors were present in all of them. And they're not present here. And as I think through some of these extra statutory Department of Justice norms, I'm curious how you see these cases, what you think that people are missing when they talk about it publicly, what sort of roles in your brain that you're like,

aha, only a dag would know this. Well, you know, that kind of analysis that Jim Comey went through is appropriate. Now, it's not the job of the FBI to do that analysis. It's the job of the Department of Justice, the federal prosecutor. But yes, and that's something that lay people often don't understand is that in order to prosecute somebody for a crime, number one, you have to personally, as the prosecutor, have to personally believe the person's guilty, which is a condition that doesn't exist in the private sector. In the private sector, you advance your client's interests, whether you personally believe in them or not, as long as you have a good faith basis. But for federal prosecutors, number one, you have to, as an ethical matter, personally believe in the guilt of the defendant.

But then the analysis that you do under department policy is, number one, is the evidence sufficient to obtain and sustain a conviction? Can you get a jury to convict a defendant beyond a reasonable doubt, which is a lot harder than it sounds to get 12 random citizens all to agree. When they're instructed by the judge, you have to believe beyond any reasonable doubt. You have to be extremely confident that the defendant is guilty of this crime. So we have to believe that we can get that conviction. We can sustain it on appeal against any legal challenge that may arise to the interpretation of the statute that we're using. But that's just the threshold consideration. You then have to evaluate whether there are any adequate alternatives to criminal prosecution. Sometimes a civil penalty is a sufficient alternative to a criminal prosecution. At the end of the Whitewater investigation, for example, Bill Clinton agreed to forfeit his law license and he was not prosecuted.

And that's an alternative to criminal prosecution. Or do you believe the person is subject to prosecution in another jurisdiction? And so we often defer to state prosecutors in the Department of Justice. But then the Department of Justice guidelines encourage prosecutors to consider whether there is a sufficient federal interest to warrant prosecution. And that's a very broad category that allows you to evaluate the significance of the case, how it fits with federal priorities, what the deterrent impact will be. So as a result of that, Sarah, right, as you say, there's a lot more than just determining that you believe the person committed the crime. You have to determine prosecution is warranted. And there are some crimes that public officials commit that are

analogous to crimes that people commit in the public, in the private sector, but there are some that aren't. And this is one, you know, this possession of the documents, the question of whether the president bears responsibility for people acting on his political rhetoric on January 6th. Now, these are issues for which there's not any direct analogy in the private sector. People often will point to some of the cases I prosecuted because Maryland houses a lot of federal agencies, and we had a number of cases involving theft or misappropriation of classified documents, but it's not analogous. You have to look at what the motive was of the person who took the documents and what their state of knowledge was and what the potential damage is to national security. All those factors play into a prosecution decision.

You know, it also strikes me that when we're talking about classified documents, my history with classified documents is in the military. And the suite of options available to the commander, if you mishandle classified information in the military, is much larger than the suite of options available in the civilian world. might sound mild, but can end careers to administrative separation, to nonjudicial punishment, to the actual court martial process itself, which people are familiar with from television. But it's really only kind of a tip of the iceberg of what military justice looks like. especially for people in the position of a Hillary Clinton or a Donald Trump or a Joe Biden, the suite of options available to the government in responding to something like this is much, much more limited

than it is to say a military, a commander of a brigade dealing with a staff officer. And I think that that difference, and I'm just kind of more making a comment that you can react to than a question. It really does play into this notion that, wait, in the civilian world, is it easier to mishandle classified information

and get away with it than it is in the military world. At the same time, let me just add to that. You've got a hammer and nail problem with federal prosecutors as well, though, because they don't have all these options. They're a hammer and there's a nail over there. And this idea that, you know, for instance, someone leaves their job at Gibson Dunn or, you know, puts away all their other work if you're Jack Smith and wants to take on this case just so they can find a way to not prosecute, it just goes against the ethos of every federal prosecutor I've ever met. They like to hunt.

Well, I think, Sarah, with regard to protection of classified information, one point, I guess, David, is that there's a reason that they put classified documents in those cool folders that President Trump described. And the point is, it's a reminder not to take the document out of the office. And of course, ordinary civilian employees and military employees, as you pointed out, David, are trained in that and that they understand that if it's got a classified cover sheet on it, you don't take it out of your office. You don't take it out in some cases of a secure compartment information facility or SCIF, as we call it in government. That's a bright line. And so most federal employees would tell you that under no circumstances would they ever take those documents home.

And then if you find those documents in the home of an ordinary federal employee, you generally know that there's something fishy going on. employee, you generally know that there's something fishy going on. I don't know to what extent presidents and vice presidents and senators and congressmen and congressional staffers are trained that way. And that was one of the concerns that we had when I was deputy attorney general, you know, that there is a legitimate need for members of Congress and for their staffers to oversee Department of Justice operations. But you're taking information from a forum in which everybody who has it understands the rules and generally follows the rules. And you're giving it over to congressional staffers who talk to reporters on a daily, if not hourly basis. Right.

And I think one of the things we may find, and perhaps one of the constructive things that will come out of this, is to formally instruct presidents and vice presidents and legislators about their responsibilities in handling classified documents so this sort of thing doesn't happen again. And with that, what's the best thing about being in private practice after nearly three decades in the public sector? Yeah, you know, Sarah, I enjoyed my time in government and there are many aspects of it I miss. I do not miss the media scrutinies. The best part of being in private practice is being able to regain some degree of anonymity, which I appreciate. But I enjoyed my work in government. As you know, Sarah, because you were there, government is much maligned because legitimately, there are mistakes that people make that have significant consequences. But the majority of the work is done by people who are doing extraordinary public service day to day.

David, you've been there as well, I know. And I think we don't emphasize that enough, you know, how much good work is done by so many good people who are working in the government. So that part I very much miss. All right. We've taken up way too many billable increments here. Thank you, Rod Rosenstein, for joining us. You're welcome. Good to be with you. All right. So, Sarah, that was interesting. That was interesting. So you told me in the green room you have a funny story. of the Department of Justice. He cares so deeply about all of this. And I'm confident that that came through. But what I don't think comes through

is all the other sort of rodness of the whole thing. And I just, when he talks about the public scrutiny, I remember at one point just thinking, we need to humanize this guy. I need to let people understand who the rod is that I work with every day. And so I found a you know, a magazine that wanted to profile him.

We were going to have a photographer out. And I was like, this is going to be great. And I was like, Rod, you've mentioned you have a dog before. Why don't we like go on a walk with your dog? It's like a big dog, right? Sparkle is a five pound white piece of fluff that loves, loves Rod so much. My understanding is that she oftentimes can be found sleeping on his chest.

And I was like, okay, can we rent a dog? Like a golden retriever, something else. Not Sparkle, the white fluff. Is Sparkle a boy or rent a dog? Like a golden retriever, something else, not Sparkle, the white fluff. Is Sparkle a boy or a girl dog? Sparkle is a girl. She goes by Sparky. Okay. But that's her formal name is Sparkle. Okay.

And Rod, of course, has two daughters, you know, wife. He's in a house of all women, the dog's female. So it's just that is actually more who rod is is the father of daughters and the dog sparkle um that it just it you can't possibly get it across unless you get to work with him every day so anyway that was a real treat so that was fun for me and the one to take away i think is important is you know again you talk to anyone who's handled classified information, or I would say this, I've talked to anyone I've ever talked to who's handled classified information and they're gobsmacked by all of this, that this is just not how things are done. But you know, he talked about the folder the same thing i did like how do you

accidentally take something out of that big marked white folder exactly exactly but he talked about i talked to i have talked a long for a long time about a military and civilian um culture and are there differences he raised sort of the third category or a subcategory of the civilian category, which is the political civilians, the your political, your cabinet officials, your congressional staffers, your president, your vice presidents. And that is, you know, that is the arena where we have seen the biggest set of problems. And one does wonder how well-trained people are in that world, how well-supervised they are in that world. And I wonder about that. I don't think that that excuses anything to sort of say that, well, mishandling is endemic just because we've kind of dropped the ball on that culturally in American politics. I don't think that's an excuse. I don't know.

No one's actually watching this, but you're moving your head in this skeptical way. Well, because I agree and I disagree. Okay. So I'm thinking back to my own experience, obviously. And on the one hand, I was thinking about the training that I got. So I was a very senior person in the Department of Justice in the U.S. government, basically. So I had a one-on-one training. It wasn't some big conference room it was me and various people there to teach me how to

appropriately use travel with store classified information how to use safes you know if you take classified information home you need a safe at home all of this stuff so on the one hand I'm like nope we all went through that training so even like very senior people go through it on the other hand, I guess, as you kept talking, I was thinking like, yep. And there were times, I guess, I will admit when I was considered senior enough that I'm not sure that the people in the room would have pushed back hard enough if I had tried to do something that I wasn't supposed to, not intentionally, like if I were unintentionally trying to do something, but doing it with enough sort of force of personality, um, yeah, I guess that, that can be a problem. You know, you're sort of in a hurry, you're

waltzing into a room, grabbing something and walking out. You know, there were times where I felt like probably, and forget the classified environment, I just mean in sort of a general sense. Yeah. And in that sense, you're right. The political civilians, if you will, who are political appointees or electeds, et cetera, are treated differently. You're right. Yeah.

Yeah. And which strikes me as a real problem because the law has no carve outs for them. Correct. Nor should it. Nor should it. Nor should it. And so it was interesting to me, and it just flags perhaps a real hole in our security, a real vulnerability in our security,

because it's not like, as we know from George Santos, you don't have to pass a background check to get elected. Right? Now, that would be an interesting, what about a party? Now, this is different from the class. This is only tangentially related to classified information. But a party, political party sets a rule. You have to pass a background check to be on our ballot.

It's funny because I would have said before this, no need. The system is actually sort of perfectly in equipoise on this. You know, you run oppo on people in the primary from your own side and the other side does opposition research. And so enough sort of even more in-depth background checks get done on any given candidate. And then here comes George Santos. And I'll admit, I remain at a real loss for how the incentives built into the system failed here. The Democrats claimed that they did have opposition research on him. But digging in a little further, it turns out it was actually just fairly complicated financial oppo stuff on this idea that, you know, his money wasn't quite what he said it was. Like that's not what makes the George Santos thing crazy. No. No, this is not a financial impropriety story. So yeah, so now I'm like reevaluating,

but in part, I sort of want to get everyone who was involved in the New York 3rd, it was the 3rd district, right? I want to get everyone involved in the New York 3rd from the primaries and the general, just get everyone in a room and say like WTF, like what, W-T-A-F, friends. Yeah, exactly. All right, well, let's move on from the abstract and get more concrete.

As we all know, and probably every single listener of Advisory Opinions knows because you are up on the news cycle, the DOJ, FBI agents, searched Biden's home. And guess what? Found, and I think it is at six documents, it's six items of classified information. And we don't know exactly what that is. Apparently some of them date back, perhaps even to his senatorial days. Yeah, this is something that is,

it's almost, if it didn't involve the president of the United States in the current context, it would be almost comical at this point, sort of. There is some George Santos-esque stuff around this, honestly.

It's just, oh, it's in the think tank. No, it's in the garage. No, it's in the think tank and it's in the garage and it's in what other place? No, whoops, no, it's in the house. What the... And I think what's more galling about the whole thing is the perpetual efforts from people

to try to distinguish it from the Donald Trump situation. Here's why that's galling to me. Not that there aren't differences, by the way, because we've talked about there are plenty of differences. A, Donald Trump isn't the standard, something you are fond of saying. So just because it's better than Donald Trump doesn't even mean it's not criminal,

let alone acceptable. But two, beyond that, the facts keep getting worse. So every time you try to make a distinguishing point between Trump and Biden, you end up looking foolish. And so, for instance, the one that I'm hearing now, and again, I do understand it, but it sure is a fine distinction to me. This idea that, well, this was a voluntary search that the FBI conducted and the Trump one was the execution of a search warrant. Okay, yep, I agree that that is a factual distinction. But the question is not whether it's a factual distinction. The question is whether it's a relevant distinction. So for instance, at the point that Biden's lawyer said, we have found all the classified documents and we assure you that we have searched every document in the place. That being said, if you would like to do

another search, you are welcome to do so. Okay. I don't think that that's that much better. Now I've heard a version where, well, no, the lawyers didn't want to keep searching because they didn't have appropriate classification authority. What? No, that doesn't even make sense to me. I mean, the document shouldn't be there in the first place. The idea that the lawyers can't go find them, it's weird to me. Also, and this is getting into some factual stuff that we don't totally know, but the FBI determining from the outside that a party is unlikely to cooperate or simply that it would,

there's a risk that they might not cooperate and therefore they go get a search warrant. First of all, that's not actually an implication of like that the FBI is sure this person's committing obstruction or is going to commit obstruction. The FBI gets search warrants for things all the time where the people might consent to the search. It's sometimes easier. It's sometimes you, as I said, like you take away any risk that the person says no, and then you have to go get the search warrant. So the idea that they didn't get a

search warrant for Biden, to me, isn't nearly as meaningful as everyone else thinks it is. What it says to me is that the Biden people wanted to try very, very hard not to have a search warrant executed at the residence and reached out very early to say, if you want to come here, we will consent to a search. Please don't get a search warrant. Please just come knock on the door any day you want, at any time, we will let you search. And that the Trump team probably did not get or avail themselves of that opportunity doesn't, again, it's factually relevant maybe, but it's not legally relevant to me. Yeah, in this constant comparison to Trump, I've been trying to look for a good analogy as to why it's kind of laughable after a while. It's imagine you're accused of robbing a bank and your defense is

another bank robber stole more money than you. And that's your defense. And then not only is- Or a murderer saying, I'm not Jeffrey Dahmer. I didn't eat anyone. I mean, I killed them. Yeah, but I didn't eat them. And I think we're missing that and talking about my murders. Jeffrey Dahmer ate his victim. What? Or, you know, or in my analogy, my analogy is, well,

bank robber Trump stole a million dollars and you've only found $100,000 for me, but then you keep finding more bags of cash. Here's 50K more. Oh, well, I've only stole one 50K. Oh, here's another quarter mil. No, well, see, I'm still at half his total. Like, it's just, and you know, here's the interesting thing about partisanship, Sarah. Not, I don't think there's a Republican alive who's shocked at this, that this is happening with Joe Biden. And there are a lot of Democrats who are shocked. And part of the problem is that what I have found in partisanship is that if you're a partisan of

your party, it's often that you, in an interesting way way often know more about the opposing team's politicians than their fans do because you've seen them interact on camera and you've seen all the stuff that everybody sees but you also consume all the critique that a lot of the say democratic partisans would never have seen and never consume about Joe Biden. So if you're a Republican, you have on top of mind with Joe Biden, that this is a guy

who literally made up chunks of his life story and like keeps making them up, like to this day, keeps making up really big stuff about his life and has a reputation of being sort of, on a personal level, with an awful lot of folks, really genuinely warm and compassionate, but also with a real cutthroat streak to him as well in politics. And so the Republicans are not at all shocked by this. Democrats are, seem to be really, a lot of them seem to be really taken by surprise.

And I just find that as a constant disease of partisanship. You're so used to defending or thinking highly of the people who have that, the letter you like by their name, that you often, in a weird way, don't know them as well as their opponents do, if that makes sense. That's interesting. And obviously, we still don't know what's in any of these classified documents. And to some extent, we never will. But they've said that at least one of the documents goes back to a Senate time. Again, and I talked about this before, it will make a big difference whether these documents were ever accessed since they were moved out of their classified location because that goes to the knowledge question. Yes. And the statutory element here is about knowledge.

And by the way, just to answer, speaking of sort of partisanship and lawyers on Twitter, man, it can be really quite annoying to see things that you're like, that is not, you're a lawyer, you know better than this. Oh, gosh. So Kyle Griffin tweeted, NBC News confirms the White House asked for the DOJ search of Biden's home. The search was not requested by the department and there was no search warrant executed, which caused a legal commentator, NBC, MSNBC legal commentator to say, although Biden has to deal with the politics of the situation, this is legally significant.

It shows that Biden lacked willfulness essential to criminal charges. That's a sharp contrast to Trump's effort to retain classified material. He knew he had and his obstruction. I've got some problems with that analysis, Sarah. But I know you did as well. Yeah, so a Twitter follower asked us

for our thoughts on this and asked us to cover it on advisory opinions. And we've talked about the statute before. The statute on removing classified documents only requires knowledge, which is different than willfulness. And whether Joe Biden consented to or requested a search of his property is irrelevant to willfulness and knowledge. I mean, think of all the times that some dum-dum consents to a

search of their trunk and then they find guns and Coke. I mean, right? Right. The fact that you consented to the search doesn't help you one bit at trial. I am not saying that's the situation here. All I'm saying is that it's legally irrelevant to that willfulness or knowledge standard about whether you consent to a search. Right.

And I think, you know, where she's getting this willful comment or this willful statement is the Comey standard regarding Hillary Clinton, where she said all the cases prosecuted involve some combination of clearly intentional and willful mishandling of classified information or vast quantities of materials exposed to support an inference of intentional misconduct or indications of disloyalty or efforts to obstruct justice. So there are a lot of ors in there. But you're absolutely correct. Consenting to a search does not mean that there is a lack of willfulness. The willfulness is an element

that can occur well before, well before the search. And maybe Joe Biden- Well, and that gets to a different question, by the way, that I also got on statute of limitations. So almost every federal crime, unless it specifically states otherwise, and this is shorthand, so bear with me, but it's five years. And so there's a very interesting question on statute of limitations around any of this when it comes to Joe Biden and the Senate documents, for instance. Because by definition, the Senate documents are certainly more than five years old. And while this actually hasn't been particularly well litigated certainly the supreme court hasn't

weighed in for instance the question is does the statute start running at the point that you removed at the point that you first committed the crime for instance by removing the documents or is the retention of the documents basically a new crime every day, so that until they are returned, they remain in an unsecured location and therefore basically the statute of limitations started running whatever that was now a week ago. Right, right. So it's essentially a constant tolling

of the statute of limitations or- Maybe. Tolling a legal term of art, meaning sort of a delay of the start of the running of the statute of limitations, maybe. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day

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That's A-U-R-A frames.com. Use code advisory at checkout to save. Terms and conditions apply. Okay. Well, we've got more stuff to talk about and time's a wasting. So one thing that we definitely need to talk about is the Supreme Court SCOTUS leak update. Oh, yes. We have lots of SCOTUS things to talk about. Yeah. So by way of some housekeeping, we had talked about how the two tech social media bill cases were up at conference on Friday. Everyone was looking for orders list Friday afternoon. That had happened the week before when those eight cases got cert granted. That orders list came out at about 430.

Nothing came out on Friday. Monday morning, orders list, drum roll, they CVSG'd it. And remember, that's asking for the views of the Solicitor General's office. That punts this definitely to next term at this point. So the Texas and Florida social media bill case is not happening this term, which I'm a little disappointed about, David, only in the sense that we had like maybe said this was going to be the tech term. And I think that would have solidified this as the tech term if those had been scheduled for this,

you know, for April oral argument. But still a big tech term. We still have those Section 230 ones on, you know, moderation decisions versus promotion decisions of content. So still have plenty of fun tech cases. Two, we got our first opinion of the year, David. Yes.

Of the term. Yes. And drum roll. Equitable tolling at the VA. Oh, okay. Move on. Move on. Congratulations to whoever won.

I'm sorry to whoever lost. The VA won. Yeah, whoever won. I'm sorry to whoever lost. The VA won. Yeah, the veteran lost. It was a unanimous decision written by Justice Barrett picking up that Justice Ginsburg flag on first opinion out for the term. Unanimous affirming the lower court. So, you know, yeah.

Yeah. Okay. So, one quick thing on the tech cases. I'm genuinely curious about what the views of the Solicitor General are going to be here. Because... Because there's a lot of different iterations.

There's not only whether, like whose side they're on. Yes. But also, do they tell the court, do they suggest to the court to take both cases, consolidated?

To take Florida? To take Texas only? I mean, there's a lot of different ways this could go. There is a lot of agreement right and left that the government should be regulating social media moderation. There's not a lot of agreement right and left on what that moderation should look like. And so it is going to be very interesting to me to see what the Solicitor general's views are on these statutes because does the solicitor general want to erode that liberty the liberty of these private corporations to select to set their own rules and just run the risk that red states are

going to do one thing and blue states are going to do another or and and or hope that congress does something that overrides it all? Or are they going to circle the wagons around the liberty of these private corporations, which is not traditionally what, you know, the Democratic Party's attitude towards the autonomy of private organizations, especially from, you know, from federal regulation.

I'm genuinely curious where they're going to come down on this. But that's all on the merits. This is just asking the Solicitor General's Office whether they should take the case. There's a circuit split between the 11th and the 5th Circuit. Of course you have to take the case. I don't understand why we're asking the SG for this at all, except to simply delay it until next term, which frankly they could have done by punting it one week on conference. Yeah. delay it until next term, which frankly they could have done by punting it one week on conference. Yeah.

But by the way, punchline of all of this is that those eight cases that we mentioned in the last episode will be the last cert grants to get argument this term barring something moving from the emergency docket. So that's exciting. So we've got, you know, all of our cases for the term have been flagged. Yeah. We've got the universe of cases. All right, this leak investigation. Ends with a whimper, not with a bang. No, very much ends with a whimper. And I think the thing that, so to make a long story short,

they don't know who did it. They can't establish to a preponderance of the evidence who did it. They can't establish to a preponderance of the evidence who did it. So there are some interesting tidbits beyond that. And here's a segment that was highlighted on Twitter that I thought was interesting and disturbing. And here it goes. Some individuals admitted to investigators that they told their spouse or partner about the draft Dobbs opinion and the vote count in violation of the court's confidentiality rules. Several personnel told investigators they had shared confidential details about their work more generally with their spouses, and some indicated

they thought it permissible to provide such information to their spouses. Some personnel handled the Dobbs draft in ways that deviated from their standard process for handling draft opinions. Your thoughts? How interesting. Look, spousal relationships are hard and complicated and, you know, this is a life tenure job. Let people's marriages be happy.

What about with clerks? No, different. Different. Yeah. It's one year. Shut up. Yeah. Right. Right. Absolutely. And that, so, you know, part of me wonders whether, because it doesn't seem to be any indication that anyone actually gave a copy of the opinion to their spouse. So that wouldn't necessarily be a source of the leak. Not a lot of details about the improper handling of the draft opinion

or the unconventional handling of the draft opinion. But it's pretty darn clear, it seems, that the draft opinion created enough of a stir that it disrupted the operations of confidentiality in the court more than just the leak indicated. I even hate to use the word just attached to that leak. But it does give an indication of a bit more drama behind the scenes, even than the leak, if that makes sense. Yeah, I still think that we will, I think this will be a deep throat situation, but it's not going to take as long. Yeah, I agree with you. In five years, do we know? but it's not going to take as long. Yeah, I agree with you.

In five years, do we know? Yes. By the way, did you know that I was like very into who Deep Throat was as a child? No, I did not know that. I had a weird, like as soon as my dad told me that there was this like historical mystery out there that was so important to, you know, the turning of American history

around Nixon's resignation. I just became really obsessed with this idea that we didn't know who Deep Throat was. And then when Mark felt, you know, made his deathbed confession or whatever you want to call it, I was like, oh, well, that was really disappointing. Yeah, and for those who don't remember,

Deep Throat was the key source, the key source for the during the Watergate scandal for the Washington Post. And yeah. And when it was the speculation, I remember growing up and the speculation, even, you know, I was born in 69. Nixon resigned when I was five. I wasn't tracking Deep Throat then. But well into the 70s and into the 80s, the speculation just ran wild. I mean, it was everywhere, right? That it was anyone, right? White House chief of staff, the vice president. Yeah, yeah, absolutely. All right. A couple of other things real quick before as we as we run out of time here. But it looks like Trump has taken another sanctions hit. This time he had filed a case, filed suit in Florida against Hillary Clinton and a number of other individuals around making allegations surrounding the 2016 election.

And not only was the case tossed, but almost a million dollars in sanctions were imposed on Trump and the Trump legal team. I mean, we're starting to get to the point where some of the sanctions awards are truly significant, going back to the Stop the Steal effort and continuing forward. And Sarah, the more each one of these things, each one of these case progresses, the more each one of these legal sanctions are imposed on Trump, the Trump team, Trump himself, his legal team or his allies' legal teams. Trump himself, his legal team, or his allies' legal teams.

The more I think about a comment you made shortly after the 2022 election cycle when everyone said, wow, look, we made it through this election cycle without any serious, really serious contest of the validity of the election returns outside of Cary Lake in Arizona. And you made a comment that, you know, a lot of the sanctions and defamation lawsuits might have actually had a deterrent effect here. That it is, people are realizing that it is not cost-free to just make the wildest possible claims in federal court.

That there are real costs that can be imposed if you abuse the legal process for political purposes. So each one of these new sanctions, and especially the latest because it also falls on the lawyers themselves. So in other words, this is not Trump, this is not just a billionaire bearing the burden

of his own vexatious litigiousness. This is also starting to fall on lawyers themselves. Feels to me like the legal system is doing a pretty good job of policing itself here. I don't know. What are your thoughts? Nature is healing. Nature is healing. Yeah, I mean, here's the problem. Nature is healing.

Yeah, I mean, here's the problem. Sanctions don't take you back to square one, right? They don't give you your time back. They don't give you your reputation back. So I think they can be a good deterrent. But of course, you'd prefer that it not happen in the first place. Right, right, of course. I mean, yeah. And I do think, but I do think you've made a point that not enough people have made. And that is, I do think there is a deterrent effect that is actually working. Yeah, I hope so. Yeah. I mean, the fact that the other case then got

voluntarily dismissed by Trump and his team, that was the same. At least says that they understand how economic incentives work, I suppose. Yes. Well, we are now over an hour. So should we table? Well, I've got two quick ones. Okay, go. David, you're going to want this one

because you were right. Oh, right. Yes. Calibri. Calibri. Yes. Also, some people were upset that I said sans serif instead of sans serif. Really?

Not sure. Yeah. Maybe it's sans. Maybe it's sans. I'm not really sure. In general, we had a lot of people with feelings about serifs. But I thought this was actually a little fun bit here. Serifs supposedly, remember serifs are the feety ones. Yeah. So the ones we're moving away from now. Serifs supposedly allowed your eye to travel faster across letters and thus make it easier to read faster.

But there's a decent body of research that suggests that that only holds true in print. When rendered on a digital screen, that advantage not only disappears, but is reversed. The going theory is that the level of resolution on most computer screens doesn't render the delicate little serify bits sharply enough, but the mostly squared off corners

of sans serif fonts bear better. The research is pretty old, early 2010s, and display resolutions have gotten much higher since then, though still not to the resolution of ink on paper. So could be outdated but it's what we graphic designers told ourselves a decade ago hey that's fun yeah that's interesting well and one thing to you in your corner you pronounced mauritius oh yes mauritius yes which sounds like um something negative you say about someone like avaricious you know like like he's deeply Mauritius. Yeah.

Like it's a real negative attribute of someone. But it is also the correct pronunciation of the country. We were both one for two. Yeah. I got Calibri, but I missed Mauritius. So it really is interesting, I think, when you do encounter words almost exclusively through writing, you've never heard them pronounced, how much that can lead you astray. Or if you grow up next to a

town called Versailles. My dad just used to make fun of me. I remember when he drove me up to Boston and I was trying to pronounce all these new town names and street names. And he was like, you pronounce every single word as a Texan. And there's something to that, right? There's, you know, regions have certain ways of which syllables are more likely to get emphasis that you subconsciously adopt. Yeah. I'm sure a lot of folks have seen that New York Times quiz, which asks you not just about pronunciations, but about the words and terms that you use. Garden hose, swim trunks, you know, median, like all these different words. Theater road always gives me away as being from exactly Houston, Texas. Yeah, it put me just north of Chattanooga.

It literally put me in a place just north of Chattanooga, which is funny because that's where my wife's family is from. And so I do wonder if like 26, 27 years of marriage actually like started to influence the way I talked about certain, you know, the terms that I used, but. Well, we know who wears the verbal pants in the family. But I'm also living not too far north of Chattanooga. So it nailed me pretty, pretty well. All right. Last thing, we did get a lot of insight and thoughts

on the 93-year-old woman and her excessive fines case. But I want to save all of those for the actual oral argument, which I think will be really interesting. So I'm not going to update folks on that. We did have a Gorsuch dissent in a different excessive fines case, a denial of cert,

where the IRS fines a woman roughly two-thirds of the amount in her bank account for not filing properly that bank account with the IRS. First Circuit held, basically, no, that doesn't violate the excessive fines part of the Constitution. And Gorsuch is like, wait, what? Yeah. So excessive fines. Really sexy right now. Always. What do you mean right now? Always.

Always. All right. Well, thank you guys as always for listening. And we will be back on Thursday and we've already got a list of interesting cases to talk about. We tabled them for Rod and special counsel, but we've got some really interesting stuff to talk about. I won't even tease it. I'm just going to tell you, it's just

interesting and you'll want to tune in. So please rate us, please subscribe, please check out thedispatch.com and we'll be back on Thursday. Oh, oh, oh Oh, oh, oh