Law Talk: Little Green Corvette

>> John Yoo: You want me to turn it off?

>> Richard Epstein: Yes, we can't tan your face.

>> Troy Senik: Welcome back to the Law Talk podcast from the Hoover Institution, coming to you, as we always do, from the faculty lounge of the Epstein and U School of Law. The one institution that actually did grant a degree to George Santos.

I'm your host, Troy Senik, former White House speechwriter, co-founder of Kite and Key Media, and owner of a series of rest stop Sbarros. And I am joined, as always, by the Page and Plant of the conservative legal movement, that's mostly a reference to Richard always performing with his shirt entirely unbuttoned.

They are Richard Epstein, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. The Lawrence A Tisch, professor of law at NYU and senior lecturer at the University of Chicago. And John Yoo, visiting fellow at the Hoover Institution, the Emmanuel S Heller, professor of law at the University of California, Berkeley, and former deputy assistant attorney general in the Bush administration.

Fellows, we haven't talked for a while. We did this Federalist Society event together in DC a couple of months ago. Haven't been much in touch since then. And all of a sudden I look up and everyone's in the wrong place all of a sudden. Richard is in California, John is in Arizona.

 

>> Richard Epstein: No, Richard is in New York.

>> Troy Senik: I thought you had already gone to California.

>> Richard Epstein: Not yet.

>> Troy Senik: Okay, well, cuz I was assuming that was a production deal with HBO. And then John, I'm assuming an attempt to ferry something illicit across the border. What are you guys actually up to?

 

>> Richard Epstein: Well, I mean, in terms of things, I'm in grandfather land at this point, so I had two new grandchildren born, one in New York, and we duly saw Annie there. Then we went out to.

>> Troy Senik: Congratulations, Richard.

>> Richard Epstein: And we saw Ione there. They were born, respectively, on September 12th, and October 23rd of last year.

So they're hardy veterans, along with older sister Naomi for Annie. And my grandson Noah is having his bar mitzvah in ten days. And so, I mean, we'd be preoccupied with that. And then there's the question of trying to finish exams, which I've done. And now write a series of articles about all the things that have gone wrong in the world.

But the list is too long to take the whole show up to talk about it. And the other thing I do is I sit as a spectator, sitting in my office at NYU, watching New York state self destruct.

>> Troy Senik: I feel like you and John can go nose to nose on that.

The Californian can make just as strong a case.

>> Richard Epstein: Well, I mean, I live in three states, California, New York, and Illinois, right?

>> Troy Senik: Well, chosen, Richard.

>> Richard Epstein: And you wanna find three states that are losing population, try those things on for size.

>> Troy Senik: Just anyone who needed to learn or needed proof that economists don't obey incentives themselves is that Richard is impervious to economic incentives and competition between states.

But I'm-

>> Richard Epstein: No, he's not impervious.

>> Troy Senik: I'm in-

>> Richard Epstein: He has too many grandchildren.

>> John Yoo: Well, I was gonna say I'm in Arizona, which also seems to be grandparents land, but not me being grandparents. Everyone here seems to be a grandparent. I mean, I really love it here, it's very nice and warm and sunny.

I'm here for a meeting of the Pacific Legal foundation, which just got its third cert grant for this term. I mean, it's incredible there. Richard,

>> Troy Senik: congratulations to you. These are like your grandchildren, John, the cert grants for PLM.

>> John Yoo: No, they're not, they're definitely not. But this is a group that litigates on behalf of property rights primarily, but is expanding into other libertarian issues like free speech and colorblindness.

And, yeah, I was trying to think, when was the last time a group had three Supreme Court arguments? I was thinking, maybe the ACLU and the NAACP back in the 60s. But I think this is quite a sign of where things are going, that a property rights group has three oral arguments of the Supreme Court in one term.

 

>> Troy Senik: That is a real FedSoc pub trivia question that you just posed, when was the last time?

>> John Yoo: Yeah, that's, yeah, that's- Yeah, First reader commenter who gets it in gets a free signed copy of Richard's latest book.

>> Richard Epstein: Give him a copy of my oldest.

>> Troy Senik: I was going to say, there'll probably be another one by the time we're done with this episode.

All right, guys, I'll start you with the issue du jour, which is this steady stream of revelations that President Biden had mishandled classified documents in his post vice presidency. It's a phrase I don't think I've ever used. Some of them turning up at this think tank office he had in Washington, some of them turning up his home in Delaware.

And obviously, this has added political salience because Donald Trump's been ranked over the coals for the last several months over his mishandling of classified information. But because that's the lens through which everyone is looking this story, I'd actually like to start by just bracketing the Trump comparisons for a moment.

We can get to them, but I just want to consider what Biden did, to the extent we know, in isolation. So, John, I will start with you. How bad is what Biden has done here, and is it worse politically or legally?

>> John Yoo: Well, I think it's worse politically than legally, but there are people working in the federal government who had classified access, who have been fired or prosecuted for cases that are not all that different than this.

There are cases of people who've taken documents home to work on them, who've taken just notes of classified meetings home or carried them in unsecured ways, who've been punished. So it's a serious thing. One thing we still haven't learned yet, actually, in either case, is what's called the damage assessment.

What is the potential damage that was done to the national security of the United States, which involves what kind of information was in the documents? A, but also, b, what's the likelihood that a foreign government or hostile power or just someone unauthorized could have seen them, could have grabbed them and looked at them?

So that's also serious, too, because I don't know about you guys, but my corvette is pretty easily accessible. Just to say, I put them in a box, locked, and my box in a locked garage next to my corvette. And then online, there are pictures of hunter Biden driving the corvette with young women.

I mean, come on. I mean, that's almost by definition, I'm sure in the next generalized government security briefing, they're gonna have pictures of that as things not to do with your classified information. But not to make light of it, it could be very serious, it depends what the documents are.

The second thing, and then see what Richard thinks is, I think it will depend on his recklessness. So the, you know, the law at issue here, there is a federal law. It's called the Espionage act. It doesn't talk about classified information specifically, it talks about unauthorized taking, unauthorized storage, unauthorized transmission of what's called national defense information.

Of which classified most classified information is such. It doesn't sound to me yet like Biden intentionally took these. But maybe he did. We don't know that yet either. Maybe he took them cuz he wanted to use them for his memoirs. But if he didn't take them, then it's a question of how reckless was he?

I don't know. The facts adding up now, three different places unsecured, that sounds pretty reckless. So I think if he weren't president, he would be in legal trouble.

>> Richard Epstein: John is a most legal astute legal analyst. I'm going to go back and sort of talk about this question of mens rea.

What's the mental state that you need in order to get yourself in trouble? Under this act. And the first thing about it is with a crime like this, when you're talking about professionals, you do not have to have an intention to violate the statute that's involved. Now, that means you don't even have to have knowledge that the documents that you were taking are, in fact, privileged.

So might help that. But even if you knew that, the only thing you have to show is that he had the intention to take those documents, which turned out to be documents that were covered by the national security statute that John referred to. So if you're simply looking at that, there is guilt.

And the point about this kind of a statute is it's a prophylactic statute. There are, of course, gonna be penalties for stuff that's gonna be released and discovered or compromised. But you put this very broad statute in place so that people have a very clear guideline of what they can and cannot do.

You educate them at this in the government from the day they start. And if it turns out you get compliance with this statute, you have no down the road problems, the sort that John mentioned, figuring out the severity of the offense and everything else. So I think, in effect, that the brutal situation about this is he should be in trouble legally.

If you just John Doe, by virtue of the fact that he took those documents home with him, wholly independent of what was done with him, by him or by anybody else, the way the Biden defenses work is very instructive. They have it the following ways that Joe Biden is a very hard working individual.

And what we know about hard working individuals is when they're in transition, in and out of the White House, they're gonna make mistakes. And so what they do is they kind of say, given all the pressures that were on him, the delegation that he made to other kinds of people in order to handle this stuff.

We should praise him for his candor when he turns the stuff up and not consider him to be wrong. I think any of those documents in a political environment or arguments, in a political environment will work pretty well, but none of them are legal defenses. If, in fact, he took the document, let's assume knowing that they were classified documents, even if he didn't know that taking the classified documents home were in violation of the law.

And the second thing that they point to is what he did is he promptly returned the documents the moment the things were identified. Well, the promptly isn't quite the case. The identifications took place, I think, just before the 2022 election, and the return was sometimes later. Then there were the other discoveries which he didn't quite make to begin with.

But even that is at most mitigation of the particular offense under the sliding scale calculus that John referred to in saying how we start to deal with this thing. But this is a political case. So what happens is I've seen a number of commentators take the following kind of line.

This is absolutely reprehensible, but we can't run a nation if, in fact, we're gonna indict our president for something, unless we can show that there's palpable harm. It seems to me that the Republicans in the House of Representatives are not particularly warm towards Biden, but I don't believe, and I haven't heard any talk of the fact as to whether or not they would say that this breach is a sufficient offense, that they should try to impeach him.

Remember, you don't have to show that it's a high crime and misdemeanor to impeach. You only have to show it's an offense that the House of Representatives wants to punish the high crimes and misdemeanor kicks in if you're trying to expel a president from particular office. But lesser sanctions could be done on lesser stuff.

So what I think is going to happen is there's going to be a special prosecutor. Nothing's going to take place in this case in terms of the criminal stuff. But I think, in effect, that the political rhetoric will turn slowly against him because it is very severe. And that what we have to worry about is if there's Biden one, documents, Biden two, Biden three, is there gonna be Biden number four?

So that another revelation might create things that make them even worse? So I think, in effect, it's gonna be a political hit. I don't want to mention that other guy. I think standing on its own, the president is surely politically wounded.

>> Troy Senik: I am going to mention that other guy.

Actually, I wanted you to do it in isolation, but I am interested in the comparison.

>> Richard Epstein: See how virtuous we are?

>> Troy Senik: John, I'll give you this first. The Biden apologists here have been making roughly the following argument. Look, you can't compare this to Trump. Biden's team finds a few documents.

They immediately turn them over immediately in quotation marks and cooperate with the government. Trump, by contrast, has to have the government come to him. And then there are still documents that can't get back, despite the fact that the Trump team is claiming that they fully cooperated. In other words, the problem in this telling is less the precipitating offense than the belligerence and the deception with the government in the aftermath.

Is that persuasive to you?

>> John Yoo: So I would say no, because that makes whether the government chooses to prosecute people based on not whether they violate the law, but how nice you are to the government, and that can't be the way our system works. Criminal defendants often put up a belligerent defense to investigations.

I mean, look at Hillary Clinton. If you wanna talk about someone who should be prosecuted, if we make the standard how much they fight with the government, then Hillary Clinton is way beyond either Trump or Biden, right? Recall, Hillary Clinton purposefully set up an alternate computer network through which she coursed all her government email, including all the classified ones which was unsecured, right?

Anybody, if they knew the right ip address of that server, could go into it if they'd wanted to. She was emailing with high government officials. And then when there was an investigation, her lawyers went through the emails and destroyed most of them before they turned over any relevant ones to the government, right?

Did they effectively destroy the evidence? So that goes well beyond anything Biden or Trump have done here, right? It's as if what Trump did was to personally go down to that little room in Mar-a-Lago, where all the documents were and just set them all on fire and then said, what classified documents?

I don't have any classified documents. But that can't be the way we decide who to prosecute or not. Now, the reason that the Trump resistance does get him into trouble is because putting aside the classified, yeah, obstruction of justice, refusal to obey a subpoena, lying to federal officials.

Those are all independent and separate, what we think of as process crimes. And you could go after Trump or his employees for that, regardless of whether the classified information was improperly stored or not. So that's the main difference. But on the other hand, what I would say is this, Trump was president when these documents were created or when he had them.

At least Trump is making the argument, which is correct, that presidents have the right to instantly declassify anything. All the classification power in the government actually just flows down from the president. Anyone who classifies anything is only doing it because they're exercising power delegated from the president. So Trump's making this claim.

Well, I declassified these documents. If he could show that he actually had done that, he would actually be in the clear. He just can't show that he ever did that. Biden can't make that argument. Biden was vice president. Most of these documents sound like they were classified by other people.

Biden can't claim, I had them because they were declassified, so it's okay. They're still classified as far as everyone knows. So even though Trump involves many more documents, Trump as far as we know, so far, Biden might have more we don't know. Even though Trump's is a story of fighting with the government and refusing to hand back government property, he also has defenses available to him that Biden doesn't have.

 

>> Richard Epstein: Look, I think John has done it just about right. The obstruction issues. Been effectively negated by prompt legal action. They turn things over as quickly as they can, unless there's some portion of this particular event that we don't know about which indicated someone toward delay. Trump was always his own worst enemy in the way in which he does these things and he get himself caught on collateral offenses.

I think the one, well, note of caution that I would ask, cuz I think John has covered this well, is we still do not know what other information is gonna come up in the course of the investigation. And we know what Merrick Garland did is he picked a very aggressive investigator to deal with the situation that was coming out of Trump.

It's not sure that he's picked the same kind of investigator to deal with the Biden stuff. It's also the case on the Biden side of this situation. Independence from the White House is really very, very important, even more important than it is on the other side. And one of the things that's constantly hanging over this is the conviction of a large number of people, which I think is quite reasonable that Merrick Garland is not an independent actor, but is some sense of political agent responsive to the demands of the White House.

He just doesn't seem to have a strong enough personality to project the notion he's going to follow the evidence where it leads, instead of saying he's going to follow his lead from people elsewhere inside the administration. So we'll watch this story play out. And my guess is that unless there's some major change, Biden will weather the storm with a little bit of unhappiness.

But if it turns out there is a major change, it could turn into a crisis.

>> Troy Senik: Let me pick up on something you said there, because this was something that I wanted to ask you about. So we now have a special counsel looking at Biden's handling of classified documents.

We have, as you mentioned, a special counsel looking at Trump's handling of classified documents. He's wrapping things up, but John Durham is still around as special counsel looking into the origins of the Russia investigation. And the Republicans in Congress have been asking Attorney General Garland to give special counsel designation to the US attorney in Delaware who's investigating Hunter Biden.

This is a pace of having special counsels that we have not really seen in the history of the Justice Department. I mean, how should we think about this? Is this proliferation of special counsels a necessary evil?

>> Richard Epstein: I think the Hunter Biden investigation is in many ways the most important because there, you're not talking about a slip of documents.

You're talking about a conscious potential course of dealing involving both the Ukraine and in China and perhaps somewhere else, where it is alleged that the big guy was Biden, who's getting money shunted to him one way or another from somebody else. And in fact, that's one of the things, by the way, which I think is actually relevant to the Biden investigation here, which is not cut in his favor.

Was there any Chinese support for the Biden administration Penn Center? And we know that the chinese government gave large graphs to Penn. They were not designated as graphs to the Biden Center. But there has been no accounting on the part of the University of Pennsylvania as to which of their general sources were done.

Money is fungible. And so what happens is the money is put into a fund that is spent on Chinese affairs or ancient texts, and then a fraction of that sum from other source is now gonna be devoted for the Biden Penn Center. One can say doesn't matter where the money comes from, so long as there was an understanding that if money comes in for one purpose, some money from somewhere else is gonna help fund Biden.

Then you have the additional complication that there may well be a serious political compromise of interest which would carry over past the time at which he becomes president. And so I don't think he's out of the woods in any particular event. I just hope the worst doesn't come to pass with respect to this man.

And one reason is I think he does have a life insurance policy as president. Her name is Kamala Harris. His numbers are never positive, but her numbers are even worse. And there's nobody that I'm aware of who actually thinks that she's competent enough to become president of the United States.

And I think that really complicates the question of how far you're prepared to push the investigation.

>> Troy Senik: There's one last thing I want to ask you guys on this topic. John, as a guy who's handled sensitive paperwork like this in a government job, I want to get your take on this.

CNN ran a story the other day which felt in many ways like just running interference for Biden, in which they quoted a lot of people from the national security world saying things like, you know, this kind of stuff happens all the time. It's mostly by accident, people inadvertently taking home material they're not supposed to.

But there was an interesting point embedded in that, which was several of the people quoted saying, it's sort of inevitable because of the sheer volume of classified material. This piece cited a government report from 2017 that showed 50 million times information was marked as classified in that fiscal year.

There is this criticism that the government over-classifies, that a lot of stuff is sort of hidden away inappropriately. Are you sympathetic to that argument?

>> John Yoo: Well, regardless of whether there's over-classification or not, I don't remember anyone saying this when Trump was under investigation for Mar-a-Lago. But putting that to one side.

Yeah, someone who handled the same kind of documents of level of classification that we're talking about with Trump and Biden regularly. I mean, there are all kinds of procedures for handling this, and you have to be very careful about them. They're secured facilities, secured rooms. And when you go work in the government, you are told and instructed exactly how to handle them.

And you're told you could go to jail if you mishandle them. And people do go to jail for mishandling them. So this is a law that's going to really only apply to the little guy who works for the government, because this is the thing that makes me dubious about this argument when it's applied to people like Trump or Biden, is that they trying to memorize the combination to the safe and double wrapping the documents and putting them in the safe.

They have people who do that for them. So when you're the president or you're the attorney general, who I work for, it's my job as the aide to bring the document to the attorney general. And then he reviews it, he may sign it or do whatever he wants to with it.

And then I make sure that it gets to the right place. There's all kinds of people whose only job in the White House is to make sure that classified documents are in the right place. And so if Biden has them or if Trump has them, to me, the idea that, it's just simple inadvertence and a mistake.

I believe that less because there's so many staff around those two people, in particular, the president and the vice president, who are responsible for this. If it was like one document or two documents, yes, but hundreds of documents or three different locations, I tend to believe less that's a mistake.

I tend to believe less that it's the result of just over classification. And I tend not to agree with people who raise defenses only for Biden that apply just as well to Trump, right?

>> Troy Senik: All right, guys, there's a bunch of different storylines from the Supreme Court that I want to get your reaction to.

First and foremost, we got a report yesterday from the marshall on the Supreme Court on the investigation into the leak of the draft opinion in the Dobbs case, and they've got nothing. It is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico.

That's the quote. There is a suggestion here, too, that it most likely came from inside the building, that they don't think it was a hack. John, are you surprised by this?

>> John Yoo: I really actually recommend people read this. It's actually very short. It's 20 pages, and yeah, it's very interesting.

It's worth reading just for the historical precedence of it, and this has never happened before. There's never been a leak of a full opinion before. There's never been an investigation before. Of the court and its employees for a leak. So, I mean, just reading about how they did it and how the court works, people are interested in how the court works.

We'll learn a lot about how the court works. And after you read about how the court works, you wonder, maybe they should go back to the old mimeograph machines, where you would put one side with blue ink, and then you would spin the little ball or the barrel around and put paper on it to make copies.

Because we were just talking about all the measures you go through to make sure there's secured information in the executive branch. And having worked at the court, too, I contest this is the case. The place is utterly unsecured. So just to give you some interesting tidbits from the report, first, I'm not surprised they didn't catch anybody because they didn't have subpoena power.

And so if they don't have subpoena power, the people doing the investigation were not criminal investigators. They could not, right, force people to testify. It sounds like they did reduce the number of people who had access to the draft to something around 80 people, I believe. So what they tried to do to get around this was to say, at the end of the interview, of course, all 80, they say, said they didn't leak it.

So it must have been Tom Cruise came down through the roof on a trapeze wire act and got it. But they say, all 80 said they didn't leak it. So they had them sign forms at the end with a notary public under oath saying they didn't leak it.

And so then their claim is, well, it's kind of like a subpoena, cuz now, you could be violating the federal law that says you can't lie to federal investigators. So I'm not sure I'm convinced by that. So another tidbit, they seem to have firmly ruled out that it was an external hack.

They seem to have ruled out that any kinda tampering with the court's information technology occurred. So they seem to suggest most of the investigation was on the people who had the ability to print it out or who had physical access to the opinion. And then the last thing you get, and this is where the investigation fell apart, is the court clearly had no system to figure out who made copies, who printed it out.

For example, there's some computers, there are network printers, but some printers, they're called local printers, they're just attached to the computer. You can print all kinds of stuff out of those, and no one knows what you printed out or not. They apparently don't have a system to tell how many people printed out the file or not.

Now, one last thing I'll say is I also think that the court martial, it was not as aggressive as they could have been. Because the last thing I'll ask, I think this will spark Richard's interest, since he loves burdens of proof-

>> Richard Epstein: Now, you're talking, guy.

>> John Yoo: Is they said that they couldn't figure out by a preponderance of the evidence who had done that.

Now, any of our listeners and friends who've worked in the criminal justice system know that that is not the standard for getting a search warrant. That is not the standard for starting a criminal investigation. The standard is probable cause, which to me is a lower standard than preponderance of the evidence.

So I think if you'd handed this off to the Justice Department or even to a state DA, they would have gone farther and spread the net wider and then been even more intrusive. Because the court set a burden of proof on itself that was so high that I don't know if they could really get the investigation off the ground and as broad as it should have been.

 

>> Troy Senik: Richard, can I ask you to add one thing to your response to, I'm sure everything John, just said for the dumb lay people like me out there?

>> Richard Epstein: Sure.

>> Troy Senik: Obviously, if you're found to be the leaker in this case, that's career-ending, at least current career, maybe it makes you a hero in some-.

 

>> Richard Epstein: It may make you a celebrity, yes.

>> Troy Senik: But does it cross any criminal line to leak an unpublished Supreme Court opinion?

>> Richard Epstein: Well, I mean, the answer is I'd have to look at the statute book. The presumption would be you have to find a statutory crime articulated in advance that covers the particular situation.

I'm not sure whether one such exists. It's interesting, in the discussions that we've had so far, nobody has pointed to that particular statute. The second point that you want to do is it may well be that this is not just a single person who was engaged in the leak of the statute.

It could have been somebody who took the document out of a file, gave it to a friend who was outside the office, had it leaked from there, put the thing back into the file, and wear gloves on the whole time. So that any investigation that you made of the premises would not yield the kinds of gaps that you find with the Biden library and the Trump library.

And then that other person is doing it. At that point, it may well be that you get a conspiracy to commit something. But again, the conspiracy has to be to admit some kind of a criminal offense, and it's not clear what has happened there. I think the basic assumption was that whoever did this was gonna find their careers were ruined and that that would be enough of a sanction.

But at this particular point, we don't know exactly how this thing went. Was it done only by the Supreme Court? That seems to be what John suggested to me, and I'm not in a position to deny that or anything else. The question is, would you bring in some kind of independent experts, the FBI, well, they're compromised in some way, or somebody else to sort of help them with this?

And so what you really are worried about whether or not the internal search that the Supreme Court did was done by people actually know this stuff well enough to be able to take advantage of God knows what kind of subtle tells that point to one person or another.

So I think what's gonna happen is that this thing is going to leave a kind of a miserable taste in everybody's mouth. And it's going to tie into another topic that we're about to talk about at some point, the polarization of the Supreme Court, because it's easier to say, aha, this was a Republican who leaked it to make sure that Justice Alito would not go back on his position.

Or, aha, this was a Democrat who leaked it to make sure that the opposition to the document was sought early and often even before it comes out. You have two theories, both of which are plausible, neither of which approved. And so I think, in fact, what's going to happen with this current situation is that sort of the speculation will start to continue.

This is not like the JFK assassination, where by the time you got to the third iteration, some years later, everybody knew that there was not an independent bullet because the sound technology had advanced on the tape. So that you could say it was, whatever his name is, Lee Harvey Oswald, acting alone, and that was it.

In this particular situation, you don't got one guy and you don't know whether you're supposed to be looking for one or many. So it's gonna leave, I think, a kind of nervous uneasiness about the situation, about the ineffectiveness of the whole thing.

>> Troy Senik: I guarantee you that we are going to get more comments on this episode about you defending the Oswald acted alone theory than any of the substantive-

 

>> Richard Epstein: I don't think it's even regarded as controversial today. I mean, back when I was at Oxford-

>> Troy Senik: Richard, you're the single magic bullet.

>> Richard Epstein: I'm not. Though there were several bullets, I think. I remember when I was at Oxford and John Sparrow tried to defend himself against some guy who was running on the other side.

The defenders of the orthodox theories had it very, very tough. I'm saying what happened is that the evidence that came out later was technological advances which seemed to get rid of some of the ambiguities that were early there. I do know that Earl Warren always thought that this was an open-and-shut case.

How do I know that? Because I was friends with somebody who had actually participated in that investigation, and that's what he had said about Warren, and that's what Warren himself said about the whole kind of thing. But in this case, if you don't have a solution that's credible and evidence, what it does is it leads to a proliferation of kinda conspiracy theories on every side.

And we already have a very highly fractured Supreme Court. Culture that's going around, and the inability to solve this case definitively is going to put greater strains on an already stressed system. That's the only point I'm trying to make now,

>> Troy Senik: John, a lot of journalists I've noticed in the reporting are sort of fixated on the fact that this report seems to indicate that the justices themselves were not interviewed as part of this investigation.

And it's never explicit, but this coverage feels like a callback to this rumor that the New York Times printed a few months ago, suggesting that either Justice Alito or his wife had leaked the decision in the hobby lobby case several years ago to some activists. I actually like to get your take on those rumors because we haven't talked about them on the show before.

But does it matter to you in this case if the justices themselves weren't interviewed here?

>> John Yoo: Well, if they were, I don't see any proof of it in the report. That just doesn't actually name all the people who are interviewed. It just says about 80 and how they came up with it.

So it could be the case that no justices were interviewed. I think that I'm not surprised that Chief Justice Roberts, who wants to maintain collegiality on the court, and the important thing is for the court to secure itself going forward and to also maintain the sort of candor and openness they need to function.

I'm not surprised Chief Justice Roberts would not order an intrusive investigation. And the worst way you could poison relations amongst the nine justices would be to treat them all as criminal suspects. But look, a justice wouldn't need to ever do it, that would be crazy. If a justice wanted to leak an opinion, they would just give it to one of their clerks and have them leak in.

I'm sure a lot of the justices don't even know how the word processing system at the court works. And emails, when I clerked at the court, there were justices there didn't know how email worked. Okay, so I am sure there were justices who didn't know how to type, so I can't imagine a justice would actually do something like that.

Just, it would be so stupid. Now, the other point, though, is I do think in the speculation before this report, and nothing in the report changes my mind on this. I agree with those speculations. That's most likely a law clerk who did it. And one thing, the report, by the way, has all these recommendations for securing computer printers, basically.

And, by the way, the other interesting thing is they gave the report and the investigation to Michael Chertoff, a friend of mine, to review externally. And he kind of blessed the whole thing and said he couldn't think of anything they could have done more in the investigation. But the reason I think it's law clerks, and I think that what it will prompt should be a re-examination of whether they should continue to use law clerks in the same way, as law clerks are temporary one-year employees.

There's four of them per justice. If there's anyone who's going to leak, it's going to be them, because they're not around. They don't suffer the long term consequences to the institution for a leak. They're all gonna go off. In fact, after the end of June of last year, they were outside the jurisdiction of the court.

They weren't employees anymore because they only worked there for a year. So they're the ones who have every incentive, and they're also, because they're only 26 or 27 years old, they're the ones who get so wrapped up in the cases of that year, they don't think about the long-term harm-

 

>> Troy Senik: John, were they interviewed?

>> John Yoo: To the institution of the court? Yes, I mean, it just says they interviewed everybody who had access to

>> Richard Epstein: but that wouldn't include the clerks. But I have the following kind of just concern, what's the probability of something like this happening again?

And deterrence is always-

>> Troy Senik: Wasn't it a lot higher? Isn't it a lot higher now?

>> Richard Epstein: So my view is-

>> John Yoo: The most important case of the last 50 years, and they didn't get caught.

>> Richard Epstein: Well, that's true, but on the other hand, is anybody gonna be willing to do this with a single opinion on a case which is not that important, where you don't think that the outcome of the 2022 fall election may turn on the response to the opinion?

My view about it is that what you just said cuts in the opposite direction. That for a case of ordinary concern, the scope of 2, section 30, for example, which 230 coming up under the Communications Decency act, the stakes are not just high enough for somebody to want to do that.

So I don't think it's going to happen again. And I think that's one of the reasons why the investigation did not go that one extra step to interview justices and so forth. And then here's another prediction. If it does happen a second time, even on a lesser matter, that I think will precipitate much more powerful interventions.

Because at that point, we now say that the U hypothesis, done once, not caught, done twice, not caught, is going to provoke a very severe kind of reaction. But at least my first approximation about this is I do not see a repetition. And one of the reasons why I think they could live with this verdict is they don't think it will occur at a far and on case.

This is a probabilistic judgment, not a certain judgment, but that would be my read on the probabilities.

>> John Yoo: Richard, let me ask you this.

>> Richard Epstein: Ask me anything.

>> John Yoo: We're focusing on cases where there's a political importance or jurisprudential importance, again, something a young clerk would think was so important.

Remember the other thing, the reason I think it's a clerk is anyone else who leaks in Washington would just leak the executive summary. Only a law clerk would think everyone would want to read 75 pages. That so shows it's a clerk who leaked the damn thing. But anyway, but your point is about things that are politically, constitutionally significant.

Here's what's worrying me, worries me, a lot of the cases at the court involve billions and billions of dollars. What if some hedge fund guy goes to one of the clerks, says, I'll figure out a way to give you $100 million if you leak an opinion to me.

 

>> Richard Epstein: Okay, now, look, I mean, I think that's-

>> John Yoo: That's the thing that actually worries me more, becasue if you read this report, and there's no way they'd be able to catch someone for doing that. No one would even know it was ever leaked.

>> Richard Epstein: John, let's go back to the history of trade secret law, because you raise a very interesting question.

 

>> Troy Senik: Here we go, this is what people are tuning in for, the history of trade secrets.

>> Richard Epstein: No, because, John, you're John, you're an intuitive genius. I'm trying to praise you for your astuteness of the subject. The standard situation in trade secrets is the doctrine that is stolen stays stolen, but is never disclosed publicly.

So the usual situation is, I know something about how you're designing a part for your convertible roof, and I can incorporate it in my technology. If I disclose this stuff publicly, then I'm sharing the secret with the rest of the world. And that means that I could create what would be a duopoly into a competitive market, and so that the typical situation and the general codes on trade secrets don't even worry about the problem of the stuff being public.

But when it becomes political and it becomes public at that particular point, the situation becomes very, very different, because the issue is how are you going to start to deal with the reputational damage to the firm? So assume that there is a firm that is leaked about stuff saying, their environmental protocols are not up to snuff and huge regulation is gonna come back down on that.

The question that then one would want to ask is whether or not you want to go after the public leaker. And I was involved in several of these cases about 20 odd years ago. And the reaction of both CEO's was as follows, I'll give it to you. If I, in fact, catch this particular guy, what's gonna happen is there'll be some modest fine that will be imposed and then there will be another repetition of the story that happened.

And I said, I'll be damned if I want to conduct an investigation that will allow some reporter on some prominent network to highlight the terrible event in the history of my firm. And so what they did is in both cases they shut it down. I was involved in one of these cases, I won't mention which one.

And I'm sitting in the room and we're planning our question how we're gonna work on appeal in one of these situations. And the phone comes up and it turned out the CEO said, what can you do to improve my product sales with this investigation? Shut it down. And so help me, gone.

The phone call came at, say, 02:03 in the afternoon. Ten seconds later, we were all sent packing. So I think what you're talking about here is the private situation is much more dangerous because you'll never discover that it's been stolen. And if that's the case, it can happen multiple times.

The publicity situation is for one for which you could get a really powerful upset. And most trade secret theft, it turns out, are done for industrial espionage purpose, at which point further disclosure is irrelevant. So that's why you're such a wise young man, Mr Wu.

>> Troy Senik: Okay, I want to get you guys to one other sort of inside detail.

This is what Richard was foreshadowing when he was talking about polarization. There was this very strange piece that ran a few days ago in the Atlantic with the title, Do Supreme Court Justices Do Not Seem to be Getting Along. Strange because in my judgment, it doesn't really deliver on that headline.

You get a few examples of justices being modestly combative in the course of oral arguments, and one sort of awkward exchange between Justice Alito and Justice Kagan. But then in the same piece, you get accounts of Alito and Kagan joking together and descriptions of the fact that everyone's actually pretty collegial on the non-hot button cases.

But here's what interests me about this. There is an implicit assumption in this piece that a non-collegial court is a dysfunctional court. Now, obviously, all things being equal, you'd prefer civility to the alternative, but there are lots and lots of places in the government that don't operate that way.

I mean, the executive branch is famously prone to rivalry. It's rare to find a secretary of state and a secretary of defense, for instance, who don't wanna kill each other. So, John, I'll start with you. Having clerked at the court, how important is it to the functioning of the court that the justices actually get along?

 

>> John Yoo: I don't think they have to get along to do their job. It might be the case they don't have to get along to do their job. Well, there are great stories. Richard is familiar with them, maybe more than I am of the Warren court, and how they were often at odds and quite nasty to each other.

I remember, I think, there's an apocryphal story. So, as you know, after oral argument, the justices get together in what's called conference, where they talk about the case, and they decide how they're going to vote and announce how they're going to vote. And there's some famous apocryphal story where Justice Douglas, I believe, just stormed out and left because Felix Frankfurter was going on, on some long tear.

And I think Douglas said, when Professor Frankfurter's done with his lecture, please tell me and I'll come back. Something like that's unheard of. I mean, some part of me actually wishes that went on more often, but, you know, that kind of antagonistic behavior is unheard of. But that just goes to show that this current era of politeness at the court and era of good feelings isn't the norm and necessarily and doesn't really have to be the case.

You could say there are a lot of appellate courts where there are a lot of judges who can't stand each other personally, but they do a good job because the job is to be tough on each other, to improve each other's work by writing dissents or getting them to change their opinions.

You don't have to be nice guys. Look at law faculties. Look at law faculties. Part of the job of being on a law faculty is going to workshops and critiquing each other's work. And you may be great friends and still critique them hard, or you could hate each other and still critique each other well.

So I don't actually see why, you know, they have to be buddies. They're not like they're three amigos driving around in their little mariachi outfits along in Mexico to do their job well.

>> Richard Epstein: Let me give a counter version of this. It's not a story from the Warren court.

It's from the Vincent court. Right. And the case was one generally of some import, it was called Brown v Board of Education. And what happened under the standard accounts is that the justices got to bickering. And to the extent that they got to bickering, they could not agree on who would write the opinion and how many other opinions would start to be written.

And the whole thing was essentially carried over to the next term. He dies, Earl Warren starts to come into the court, and what he does is he plays the master role, and he figures out what the winning strategy is. Write an insipid opinion, which essentially gets the right result done, but don't do anything that's gonna step on somebody's pet peeve of one kind or another.

And so you get an opinion which says, famously, everybody knows that segregation has no place under the equal protection clause, full stop. And then some empirical studies about how black and white children work. And what happened is the academics had a field day in criticizing all of this stuff.

But that was not the market that Warren was after. He got the people to work together. He got the division, to some extent, to go through. And then it was a set of hard slogging through the rest of the 50s, given massive resistance and everything else. But I think if, in fact, that opinion had been written in a way that had been too contentious, or if it had been written in a way that would have provoked the dissent by somebody who wasn't happy with the way the conference had gone, it would have been a very, very different world.

Another illustration, and I don't know how this one played out. I think this is closer to John's story, is that Professor Felix Frankfurter not only lectured to Justice Douglas on the court, but he lectured in the classroom to Justice Brennan when he was a student at the Harvard Law School.

And this carried over to the whole thing having to do with Baker and Carr and the question of one person, one vote, and all the rest of that stuff. And it was really amazing to see the level of real unhappiness that Brennan had with respect to Frankfurt. And I now tell you my inside story about this.

I had a great teacher from Minnesota named Hal Chase who taught government at Columbia, and he managed to inveigle us an invitation to go down and watch the court and then talk to Justice Brennan afterwards. And so Justice Brennan is going on, and this guy can charm the pants off an alligator.

I mean, he is just the smoothest, happiest talker you could ever have.

>> John Yoo: That's where Richard learned all his social skills.

>> Richard Epstein: All my social skills. And I was sitting in the back of the room being highly diffident under the circumstances. But there was some guy sitting in the middle of this long table to my right and to his left, and the question comes out like this, say, Mr Justice Brennan, don't you think that Justice Frankfurer was correct in Colegrove and Green when he said we were getting into a political thicket, right?

And what happened is Mr Congeniality disappeared. And this tough cop came up and Justice Brennan gave that guy a dressing down the likes of which I've rarely seen everywhere else, and what was going on? It was obviously projecting his unhappiness with Felix Frankfurter on this poor junior at Columbia College and let him have what for.

And so I do think that these things do come out in strange kinds of ways. I don't think either of them persuaded the other. The only reason why that conflict stopped was that Brand stayed on the court. And Phillips Frankfurter now close to 80, resigned.

>> Troy Senik: Right.

>> Richard Epstein: How do you like my stories?

 

>> Troy Senik: That was a pretty good one, Richard. I'm going to take you guys in a very different direction for your final question, because the two of you may be focused on the future of the country, but I assure you that the hottest legal news for most Americans this week comes out of New Mexico.

We just got word, I think it was yesterday, that both Alec Baldwin and the armorer on the film he was working on, which was called Rust, they're both going to be charged. With involuntary manslaughter for this accident where Baldwin fired what turned out to be a loaded gun, accidentally killed a cinematographer on the film.

So again, let's start with my layman's confusion and go from there. Richard, I completely understand the charge against the armorer, because the armorer yells, cold gun before they start this, meaning the gun isn't loaded. What I'm a little confused by is how you then charge Baldwin, who is relying on the assurance of this person who is on set precisely to provide him information about whether or not what he's doing here is safe.

What am I missing here?

>> Richard Epstein: You're missing a lot of things, all of which are not fully understood. The first thing to note is involuntary manslaughter is sort of a kind of a charge of negligence of some kind of another, but if it's simple negligence, then it should just be a tort, because there would be no mens rea.

So what you have to do is you got to pump this stuff up in some way in order to make sure that it's, quote, more than simple negligence involved in the death, which is the standard way to put it. And so then when you start thinking, well, what did they do?

And, well, the first thing you start to say is that this was a chronic problem, and what do we mean by a chronic problem? Well, you say that this was not just inadvertent negligence, there was a structural issue going on because there was a great deal of unhappiness at the work site and some of the workers left.

And then you get a statement which could either be devastatingly true or devastatingly irrelevant, which is and they hired non union labor. Normally, those words are music to my ears, but in this particular case, the clear situation was the union guys were professional, these are guns, and you're hiring guys who escaped.

So at this point, it's not just simple negligence, what it is, it's making a conscious decision that is so careless, which you only know can increase the way in which this particular situation is. So when you have anything like that, what you have to do is to be aware of the fact that the question of involuntary manslaughter, how much did you know that there was, in fact, a potential bonfire out there which would be lit with a spark?

And so then you come with the second question, and, of course, it's the usual kind of Troy SeneC naivete, which I love you for. Which is you assume that it's one of the other.

>> Troy Senik: Set you up?

>> Richard Epstein: One of the other guys who are going to be responsible for all of this.

What happens is what you have done is made an argument that maybe the armorer should be primary. Because in terms of the industrial organization of this firm, he's the one who's supposed to make sure that the gun is cold. But if you're a prosecutor, what you always do is you tie, not always, but often tie the big hard case to the more suspect case.

And you're saying, well, Alex Baldwin was in fact, somebody who was responsible because he knew about all the antecedent changes in the operation and should not have had the same kind of confidence in the armorer who did this. Ad so therefore, he becomes a co conspirator in this particular kind of situation.

Now, there's also a political element here, which is extremely complicated, which is nobody knows who the armorer is, and everybody's heard of Alec Baldwin. And so somebody's gonna come along and say, this is not a serious criminal charge, this is an effort of a prosecutor to get fame and fortune in one of these cases in the hope to advance his kind of career.

For me to make a kind of final, definitive judgment on this thing would require, I think, a pretty intensive review of what the record turned out to be, rather than taking some of the newspaper stories which sort of indicate the high points in the situation. Let's put it you this way, this is not a simple, ordinary negligence case, there's much more that's going on here.

Whether it's enough to tip it over the criminal line is hard, the next question we're going to have to ask is, how is Baldwin going to respond and the armor going to respond? Baldwin may well plead not guilty, forcing this guy to his proof, and then what he will do is testify to his own knowledge of everything that he did in order to avoid this, or will he take the Fifth Amendment?

I mean, it's a hard call to make if you're not gonna plead guilty. And it may well be that he hopes when they try to convict the armor, that they'll be so powerful in the attack on him that the secondary response of Baldwin shrinks in insignificance in comparison.

I think he will probably plead not guilty to this, and I think it's about even money as to whether or not the prosecutor will win. I think Senec is an astute predictor of the future when he says that the guy who's running the armory has got the greater exposure.

But in criminal law cases where collective responsibility turns out to be the norm, 10 distributions of culpability amongst people involved in a common scheme, even in asymmetrical roles is a relative rarity.

>> Troy Senik: John, I'll give you the final word, do you have any position on this beyond wanting to see Alec Baldwin go to jail for any reason whatsoever?

 

>> John Yoo: You just took away my line.

>> Troy Senik: I knew it.

>> John Yoo: What Alec Bald should be punished for is making bad movies

>> Troy Senik: Now he's made a lot of good ones too.

>> Richard Epstein: He's got a great voice, he's got a great voice.

>> Troy Senik: There is no way I say this with absolute certainty, though I do not know this, there's no way that John Yu is not a hunt for Red October fan.

 

>> John Yoo: No, I was gonna say, isn't that his best movie, Hunter Red October?

>> Troy Senik: It's up there, the edge is pretty good too, if you've ever seen that with him and Anthony Hopkins.

>> John Yoo: I don't watch porn.

>> Richard Epstein: Which of his romantic, what's his most famous romantic comedy?

 

>> Troy Senik: I don't know if it's his most famous, but he was in the movie, the Nancy Myers movie with Diane Keaton, the name of which is eluding me. It's complicated.

>> Richard Epstein: It's complicated. Yeah, that's a very complicated story. Look, I happen to think

>> John Yoo: he's also. He was in one of the mission impossible movies

 

>> Richard Epstein: and wasn't he on Saturday Night Live?

>> Troy Senik: Hosted at tons of times, was on 30 rock? He's very funny too.

>> Richard Epstein: Yeah, I mean, he's a very gifted actor.

>> Troy Senik: yeah.

>> John Yoo: Wait, who was that?

>> Richard Epstein: That was a voice of Christmas past. Scott being frustrated with our collective ignorance.

 

>> Troy Senik: Correctly pointing out the fact that we excluded probably the most famous monologue by anyone ever delivered by Alec Baldwin, it's a pretty good.

>> John Yoo: So I would just say, you know, I'm like you Troy, I mean, is it really the job of Alec Baldwin to check or any actor who's handed a gun that's been right prepared and been worked on by someone who's hired by this, the production company to handle fake guns?

And they tell him it's right, it's loaded, not with blanks. And that he's right, it's the actor's job to check the ammunition in the gun, I bet a lot of actors wouldn't, right? If the the blank looks similar to a real round, how's the actor supposed to take this?

He supposed to have a scale and then weigh, a live round against the fake? I don't see how, you know what the duty of care of the actor should be beyond what, Alec Baldwin did, given all the other people whose job it is to make sure not occurs.

 

>> Troy Senik: Do you see this, Richard? My level of naivete is enough to get you tenured at UC Berkeley.

>> Richard Epstein: Well, it's not only that.

>> Troy Senik: You drove. You would have gotten tenure 15 years.

>> Richard Epstein: No, but you're missing a very salient distinction. Your argument is much more powerful as a defense if the case is charged, and it's not gonna loom as large in the eyes of an ambitious prosecutor on the question of whether or not to bring the charge.

Because one of the possibilities that you have is you look at the range of punishments and you work out a settlement in which he pays a fine and go to jail. But admits some degree of criminal responsibility less than that normally associated with involuntary murders. So basically, the power of the arguments that you need to make to get a conviction is stronger than that which you need to make a charging decision, and so that could be something that plays a role.

My attitude is, if I were the jury now, based upon what I had seen, I would acquit Baldwin for the same reasons I think that you guys are saying. That's why it is in cases like this, the prosecution in one of these involuntary manslaughter more than negligence cases, you have to have a very powerful incremental improvement.

A construction of the case, so as to make it clear that the obvious response I could confidently rely on, this guy, is not there. Which is one of the reasons why they said, all the uneasiness on this set beforehand leading to a change in personnel, may well lead to a requirement for increased caution.

Even by somebody who's normally entitled to rely on the better judgment of people more skilled in a particular craft. It's gonna be hard on the criminal side, that's why these guys get paid the big bucks and we don't.

>> Troy Senik: You do pretty well for yourself. All right, fellas, that's our time, my thanks to you both, as always, to our producer, Scott Immergut, and to all our wonderful listeners.

Remember to do us a favor and rank the show wherever you get your podcast, we'll be back with you soon, until then, the faculty lounge is officially closed.