Transcript of OA360: The Tuesday Afternoon Massacre

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[Show Intro]

Thomas:         Hello and welcome to Opening Arguments, this is episode 360.  Oh!  Nice number.  Good old 360. 

Andrew:         Yeah, the Babylonian year, right?

Thomas:         Sure. Yeah.

Andrew:         [Laughs]

Thomas:         I was just gonna say it’s like when I was a kid and you’d just try to jump and spin around in a full circle and be like “360!”  But yeah, you’re-

Andrew:         Oh, yeah!

Thomas:         Your reference too, exactly!

Andrew:         [Laughs]

Thomas:         How’s it going, Andrew?

Andrew:         It’s going! Personally I’m great.  The republic is in shambles and on fire, but me, I’m great!  How’re you?

Thomas:         Yeah, just dodging our crumbling democracy, dodging the pieces of it just falling all the time.  I don’t wanna get clocked in the head.  I will say this, I’m feeling super great because we started YouTube videos last week!

Andrew:         Oh, man!  That was so good!

Thomas:         So much fun!

Andrew:         Why don’t you tell people about it?

Thomas:         Okay, so we’re gonna do – it’s called “Opening Arguments The Briefs,” you might’ve already heard a sneak peak, the numbers are saying maybe you haven’t.  [Laughs] So go check out our YouTube channel, the link will be in the show notes.  On YouTube you can just search Opening Arguments or, like I said, find the link.  It’s so much fun!  Andrew, I’m loving this format. 

The goal is to try to take a story from our Friday show, usually, and add a little humor and entertainment, turn it a little John Oliver and use it as a way to try to grab more people to listen to the show because, ultimately, I just think this podcast does so much good in informing people and we thought this would be a great way to attract more listeners and also be a fun little thing in and of itself. 

I really hope you’ll go check it out and if you don’t mind right now, go in that YouTube app, find the video and subscribe to our channel, Opening Arguments because the algorithm gods decide if people subscribe and if they click that little bell alert thing I guess that makes your channel more noticeable or something.  We’re all just, you know, slaves to the algorithm.

Andrew:         [Laughs]

Thomas:         That’s what it says to do, so please, please, please do that.  Andrew and I have put so much work into this and we’re really proud of it.  The more people who like and share it the more chance it has of more people seeing it.  That’s my pitch, there you have it.

Andrew:         Yeah!

Thomas:         And tune in this week because it’s gonna be another fun one!  Hopefully tomorrow or the next day.

Andrew:         Yeah, I am really really excited about this.  We’re gonna have the link directly to the video in the show notes.  You don’t have to do any work beyond just clicking on that link.  It’s a YouTube length, it’s under 15 minutes in length, that’s why it’s called Opening Arguments The Briefs, which is a fantastic title.  Please do share it around, it’s a good way if you’ve got folks who still aren’t sure what a podcast is and you’d like to introduce them to the show this is a good way, it’s why we do it to help introduce the show to people who might not otherwise know. 

I’m really happy with what we did last week and really excited about what we’re gonna do this week.

Thomas:         Yeah!  Alright, with that said we’ve got to get to the exciting news of our crumbling norms in democracy.  Here we go!  Andrew, you wanted to title this segment “I’m sure he learned his lesson!”

I’m Sure He Learned His Lesson

[Segment Intro]

Thomas:         Alright well that’s fantastic, some good sound work there.  So maybe we’ll examine that proposition by the esteemed Senator Collins.  Andrew, do you think Trump learned his lesson?

Andrew:         You know, this could be our new Yodel Mountain.  You’re either lying or you’re stupid.  Let me – I’m always in a good mood after hearing Transformers but I maybe shouldn’t be laughing about this.  Donald Trump was acquitted eight days ago.  Since then, here are just a small smattering of the things that have happened, most of which we can’t even cover on today’s episode. I’ll briefly go through, but here we go:

Number one, Donald Trump, the day of his acquittal, announced that Bill Barr will personally review (quote) “certain sensitive investigations.”  I’m gonna include that memorandum that Bill Barr sent to the entire Department of Justice.  Here’s what it says, it says “any investigation involving a Presidential or Vice Presidential candidate has to be run through me.”  Now you might think well okay, sure, let’s have a fair and neutral and balanced process.  This is Bill Barr so … we are doing none of that. 

What that means is any investigation into Donald Trump or his campaign or any of his associates or anything like that will now get to be run through Barr’s office where he will put it at the bottom of a locked file cabinet and dismantle the stairs, but at the same time here, let me actually quote from Lindsey Graham directly.  (Quote) “The Department of Justice is receiving information coming out of the Ukraine from Rudy to see.  He told me that they have created a process that Rudy,” and by the way that’s Rudy Giuliani in case you didn’t know, “could give information and they would see if it’s verified.”

So yeah, the neutral, fair, and impartial process that Bill Barr has decided to put into place to protect us from partisan investigations in the 2020 election is special conduit for Rudy Giuliani to feed nonsense to the Department of Justice involving Hunter Biden, but no investigations of any wrongdoing by Donald Trump whatsoever.

Thomas:         So, A, I’m glad you clarified because I was thinking it was gonna be Sean Astin for a second, not Rudy Giuliani.

Andrew:         [Laughs] Nice!

Thomas:         But B, how just absolutely out of the ordinary is this?  What level – we should’ve come up with a scale a long time ago, the problem is you keep breaking the scale! 

Andrew:         Yeah!

Thomas:         You’re like on a scale of one to Nixon, no, we’re way past that.  It’s like going from Celsius to Fahrenheit and Centigrade and all that nonsense.  So how outraged should we be by this?

Andrew:         Do you remember in math when you first learned scientific notation for really really large numbers?

Thomas:         [Laughs]

Andrew:         It’s like 1.02 times 10 to the E.  That’s where we are.  The words that Lindsey Graham just said, Bill Barr told him they are (quote) “creating a process” (end of quote).

Thomas:         Yeah.

Andrew:         You create a process because the Department of Justice has never done this before.  We’re gonna talk about that more in the main segment when we discuss exactly what the role of the Attorney General historically is supposed to have been and how Bill Barr has morphed that unethically in violation of the canons of ethics into being Donald Trump’s personal lawyer, but no.  To answer your question directly, no, in our nation’s history we have never had an incumbent President send out his personal lawyer acting in a personal capacity to funnel disinformation and Russian propaganda to the Department of Justice.  No, that’s not a thing. 

You might think that this would be a violation of federal election laws, you would be correct, but you would then also have to deal with the fact that Donald Trump has deliberately left the Federal Elections Commission unstaffed such that they cannot reach a quorum.

Thomas:         Wow.

Andrew:         Never minding that he could appoint, at his own discretion he could appoint members of the Federalist Society, he could appoint Jared Kushner.  He could fill these roles with sympathetic hacks, but it is far better for Donald Trump to cut off the FEC entirely at the knees.  They don’t have a quorum, they can’t start a new investigation into election fraud period.

Thomas:         You know I haven’t really heard anyone else talk about that.  Wow!  There’s just so much to keep track of!

Andrew:         Yeah!  Yeah!

Thomas:         So does that mean all the Democrats running should just not even bother about election law, or?

Andrew:         Stop! Because there are certain – way to provide unsolicited advice to the Tulsi Gabbard campaign there.  [Laughs]

Thomas:         I said Democrat. 

Andrew:         Yeah, right.  [Laughs] And a shoutout to Duran Sinclair who emailed us to scream into the void about that.  You are correct and it’s a disaster.  But look, we don’t have time to discuss that.

Thomas:         Oh, okay.

Andrew:         Here’s another thing that we don’t have time to discuss that is in fact a crime, and that is that the President has fired Lt. Col. Alexander Vindman, his brother because I guess blood-guilt runs through the family, Ambassador Gordan Sondland, has withdrawn – I can’t give an exhaustive list because the purging of disloyal individuals from the government will continue.  If you’re asking is firing Vindman a crime?

Thomas:         I was gonna ask that.

Andrew:         Uh, clownhorn yes!

Thomas:         Really?  Okay.

Andrew:         Firing Vindman is a crime.  Absolutely violates-

Thomas:         They’re doing this thing where they’re like “he’s just being transferred back to the …. Grave.”  No! [Laughs] He’s just being transferred back to the military and they’re gonna do whatever, that’s been the line.  Why is this a crime?

Andrew:         Have you ever seen Stripes?

Thomas:         Oh a long time ago.

Andrew:         Where they reassign John Larroquette to run arctic command in Nome, Alaska?  Yeah, here’s the crime.  It’s 18 U.S.C. § 1513(e). It says “whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing a law enforcement officer or any truthful information relating to the commission or possible commission of any federal offense shall be fined under this title or imprisoned not more than 10 years or both.” 

100%, retaliating against people that provide truthful information to the government regarding your crimes is, in and of itself, a crime.  We don’t even have time to discuss that.

Thomas:         But then nothing will happen because he hasn’t staffed the federal retribution … [Laughs]

Andrew:         Nothing will happen because those crimes will be prosecuted by the Department of Justice and-

Thomas:         Aaah.

Andrew:         Any investigation into the President-

Thomas:         Bill Barr just eats it.  He just eats the paper! [Monster Nomming Noises]  More investigations please!

Andrew:         Cookie Monster style?  Yes!

Thomas:         [Laughs]

Andrew:         In fact I didn’t read the Barr memo, but I’m gonna read it now because it is outrageous and keep in mind that this was [Sighs] promulgated the day that Donald Trump was acquitted. 

So it says “No investigation (including any preliminary investigation) may be opened or initiated by the Department or any of its law enforcement agencies of a declared candidate for president or vice president, a presidential campaign, or a senior presidential campaign staff member or advisor absent prior (i) written notification and consultation with the Assistant Attorney(s) General and U.S. Attorney(s) with jurisdiction over the matter and (ii) written approval of the Attorney General.”

Thomas:         Jeez.  Is this anything that like-

Andrew:         Preliminary investigation.

Thomas:         -lower level people could just ignore or something?

Andrew:         No!  That’s their boss!  If you’re a prosecutor, the Attorney General is your boss.  You don’t have any direct – we’re gonna talk about this in the main segment.  I know a lot of folks who are in the U.S. attorney’s office who are good, hardworking, diligent prosecutors and it is very, very important that these people not resign en masse and quit because that will help Donald Trump.  He will then be able to fill their spots with sycophants and graduates from Liberty University’s Regent School of Law and other people with cargo cult law degrees.

It is important that the government function and people who are working in this environment, my heart goes out to you because you’re trying to do your job to serve the country, to make the United States a better place, and your immediate boss is probably a nice person.  Her supervisor is probably a nice – but the person at the top of the chain is Bill Barr and at some point you can’t just say “I don’t care what my boss does.”  That will get you fired.  I should point out-

Thomas:         We need a rogue agent, dammit!  We need one rogue agent with the taint team!

Andrew:         Well, we’ll talk about that in the B section.  [Laughs]

Thomas:         Can the taint team get the van going and?

Andrew:         [Laughs] Yeah, they’re gonna build a tank out of sheet metal.

Thomas:         There’s probably a taint in the White House they could take care of.

Andrew:         Yeah, yeah.  Preliminary investigation is supported by a footnote.  I’m gonna read that footnote to you because it says “Upon opening an assessment of, or taking exploratory investigative steps relating to, any person or campaign covered by this memorandum, law enforcement agencies shall promptly notify in writing the Assistant Attorney(s) General and U.S. Attorney(s) with jurisdiction over the matter.”

In other words it promotes this culture of spying, too.  It says hey look, if anybody has written anything that seems like it might be critical of the President you’ve gotta report that up the chain.  This is scary and terrifying and awful.

Thomas:         Does he end it with “under his eye” or?

Andrew:         Yeah.  [Laughs] Bill Barr has submitted a supplemental memorandum to change the DOJ logo to just the Sauron’s unblinking eye.  But no, this is unprecedented.  We’re gonna talk more about the corruption at Department of Justice, but yeah.  Absolutely no investigation of the fact that Donald Trump illegally fired Gordan Sondland can be had.

Thomas:         Wow.

Andrew:         And we don’t have time to discuss that!  [Sighs] Other stuff we don’t have time to discuss in detail, this morning, an hour before our record, the President complained about the jury foreperson in the Paul Manafort trial.

Thomas:         Oh yeah!

Andrew:         That’s unconscionable. 

Thomas:         [Sighs] Okay, this is something that particularly frustrates me because it reminds me of the FBI text thing.  So the whole thing is … sorry.  These people are so arrogant and so privileged that they look at anyone who has a liberal view and they say “that’s disqualifying.  Yeah, they can’t be on a jury, they’re a liberal.”  But if you have conservative views you’re just the norm.  You’re just default objective. 

When they found all those texts between the two FBI agents, they’re still making stuff out of that on Fox News.  They still will forever!  And yet, come to find out there’s equal or more texts uncovered in that whole thing that were pro-Trump and hated Hillary, and that doesn’t matter!  Somehow that has no effect, only the other way!  It drives me crazy!  Gosh!

Andrew:         Let me drill down on that in a couple of different ways.  Number one, by far the most important thing to remember.  The average jury involves an African American being sentenced for small possessions, the average criminal jury in this country, statistically speaking, is an African American defendant being sentenced for a small amount of possession of illegal drugs with a jury that is, while not 100% white, likely overwhelmingly white and anecdotally the argument that well, the white dude on the jury who was the foreman is a law and order type who wants to see people go away to jail-

Thomas:         Yeah!

Andrew:         -when they have drugs, that’s not an argument!  I mean, it’s an argument you can raise but it’s not a winning argument.  If you reverse this for even a tenth of a second it would invalidate 2 million convictions in this country.  Absolutely not is a jury of your peers means a jury of your politically aligned peers who want to see the very best for you happen.  That’s astonishing as a position to take. 

Point number two:  investigating into and questioning jurors as to their impartiality is your lawyer’s job!

Thomas:         Hmm.

Andrew:         That’s why you get peremptory challenges, that’s why you get challenges for cause.

Thomas:         Is that something you do during … [dramatically] voir dire?

Andrew:         [Laughing] That is in fact something you do.

Thomas:         I’m a law!  I did a lawyer, everybody!  I’m a law man!  Voir dire.

Andrew:         Voir dire! 

Thomas:         [Laughs]

Andrew:         [Laughs] No, that’s exactly right!  The failure to uncover that kind of information and the failure to dismiss out a potentially biased juror is not a failure on the part of the judge.  That’s not her goddamn job!  It’s Paul Manafort’s lawyer’s jobs to raise potential conflicts of interest.

Thomas:         Is this about Stone?

Andrew:         Well it will be about Stone.

Thomas:         Both, okay.

Andrew:         This was, in particular – oh god, no, sorry.  This is about Stone, I take that back.  So let’s be clear on this: this is in response to the decision that came down by Judge Jackson yesterday involving Roger Stone’s motion for a new trial, which Judge Jackson denied, and Roger Stone said hey, this one juror failed to be impartial in the case.

Thomas:         Do we know the count, though, of – ‘cuz it’s gotta be like a 9-0 juror decision.  Oh that one juror was biased!  It wouldn’t have mattered.  Do we know?

Andrew:         We do.  The jury on Roger Stone was unanimous on seven counts.

Thomas:         [Laughs]

Andrew:         So, no, it would not have mattered.

Thomas:         Wouldn’t have mattered.

Andrew:         But they’re saying-

Thomas:         But you see, the anti-Trump foreman-

Andrew:         You’ve seen Twelve Angry Men!

Thomas:         -has mind control and hypnotized the rest of the jury, otherwise they totally would’ve let him off, right?

Andrew:         I’m gonna post Judge Jackson’s ruling denying Roger Stone’s motion for a new trial.  It is straightforward and comprehensive.  The jurors questionnaire, because this juror in particular works for the IRS, and the IRS sometimes refers cases over to the government.  So then the question was asked, “have you ever been directly involved in that prosecution?”  Answer, “no.”

In fact, I’m going to read the entire colloquy between Roger Stone’s lawyers and the prospective juror.  This is pages 9-10 of Judge Jackson’s ruling. 

Defense counsel: “Good morning.  You’re a lawyer at the IRS?”

Prospective juror: “Yes.”

“Do you supervise any other lawyers?”

“I review their work.”

“And do these lawyers that you supervise, do they participate in criminal prosecutions?”


“Can you just tell us what your job function is at the IRS?”

Prospective juror: “It’s civil tax administration work.  I’m in” and then the office is redacted.

Thomas:         Redacted?  Yeah.

Andrew:         Redacted, right.

“So it’s large and international business companies mostly.”

Defense counsel, Stone’s lawyer: “Do you ever have the job of referring any cases to the Department of Justice?” 


“Any of the attorneys that you oversee?”

Prospective juror: “No, it’s not the process, how it’s done.”

Defense counsel: “Very good, thank you judge.”

Defendant then moved to strike that juror for cause and because allegedly that juror did not adhere to the court’s instruction not to review information about the case.  Court denied that ruling and then was seated on the jury.  The memorandum here and the order does not specify that this person was the foreperson, but I think we can infer that given the public discussion.

Here’s the legal standard.  Bias is implied amongst a jury only (quote) “in extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his or her deliberations under the circumstances, including when the juror is an actual employee of the prosecuting agency.”  That’s the standard.

The judge gets to determine, with judicial discretion, whether somebody meets that standard and this person obviously did not meet that standard.

Thomas:         Right.

Andrew:         Okay, fine.  So I wanna be 100% clear about this, I’ve got nothing against zealous advocacy on behalf of Roger Stone.

Thomas:         Yeah, takin’ a swing, givin’ it a try.

Andrew:         That’s right.  You make your arguments.

Thomas:         You know, he was just that juror plus eight other jurors away from being innocent.  But look, you try to do what you can.

Andrew:         I want criminal defense attorneys to do their job of zealously advocating and representing their clients.

Thomas:         Right.

Andrew:         And I think it is reasonable to say, hey, after a conviction we want the judge to revisit and reconsider-

Thomas:         Sure.

Andrew:         -whether this juror was biased against us and maybe that tainted the whole trial.  Not hard to imagine how that could play out. It is beyond inappropriate for the President of the United States to attack a private citizen personally via Twitter and for his propaganda outlet on Fox News to do so on cable news.  This is just … you can hear how mad I am about this, but our system of justice depends upon individual citizen civic participation and you cannot have people afraid for their lives to go serve on a jury. 

If you don’t think that this put somebody in legitimate fear for their life, I remind you that an armed goddamn lunatic (and Brian, don’t clownhorn that) went out into Comet Ping Pong in the District of Columbia with an assault rifle strapped to his back and said “I wanna see the basement and I demand to know where you’re holding the kids.”  The people who follow this President are lunatics, they are armed, and they will do whatever he winks and nods between the scenes.  It is outrageous.  It would be outrageous in any situation to target somebody who sits on a jury and we need to make sure on our side that this kind of conduct does not become normalized. 

I don’t care if there’s some kind of horrible prosecution where somebody is railroaded and steamrollered.  You. Don’t. Go. After. The. Jury.  It is as strong a bright line as any code of ethics can be in our judicial system.

Thomas:         Yeah.

Andrew:         I’m mad.

Thomas:         This is as mad as I’ve ever heard you.

Andrew:         This is my job.

Thomas:         It’s not like either of us would say our criminal justice system is great, but it sure as hell could get worse!  [Laughs] Definitely could take a turn for the fascist or whatever, the Banana Republic style.  This is not to defend all of the justice system, but it could always be worse as we’ve discovered in this era.

Andrew:         I just want you to think about every high profile criminal verdict with which you have disagreed in your lifetime.  Maybe it’s the O.J. verdict, I don’t know, and I want you to think back to when those verdicts have come out and whether the press or any elected official has ever gone after the people who sat on that jury.  Nobody did that with O.J.  There was a ton of outrage and backlash, and we could have that discussion, but let’s have that discussion on another show.

Thomas:         There might’ve been some, kinda, really bad media outlets that tried to out them and stuff like that?  I actually think that has happened from time to time and, by the way, the results are terrible!  It’s not good.  I’m trying to think, I know I’ve watched a crime doc where jury members had to go into hiding and stuff, it’s definitely not good, but the President certainly [yelling] has never done it!  Gosh.

Andrew:         Yeah.

Thomas:         The President!  Sorry.  [Laughing] The President is supposed to be… the President!

Andrew:         He’s the President.  Yeah.

Thomas:         [Sighs]

Andrew:         So we’ve got that, and then – I think I may have said Manafort when I meant Stone.

Thomas:         It is hard to keep these criminals straight.

Andrew:         Yeah.  [Sighs] Because today the President complained about Manafort’s sentencing over Twitter.

Thomas:         Mm-hmm.

Andrew:         Said, “Oh, yeah, Judge Jackson is in the Stone case, she’s the one that put Manafort in solitary confinement and she’s a terrible judge.”  That’s a flat out lie!

Thomas:         I’m not a lawyer, but even I am like wait, judges don’t put people in solitary confinement.

Andrew:         Judges don’t put people in solitary confinement!  Good work Thomas, case closed!

Thomas:         Thank you, yeah, that’s not how that … works.

Andrew:         Yeah, we can go the hell home!

Thomas:         Yeah.

Andrew:         Yeah, so here’s what actually happened. 

Thomas:         [Laughs]

Andrew:         When sent to Rikers, Paul Manafort was placed into segregated confinement because he was deemed not fit to put in gen-pop, in the general population-

Thomas:         Yeah, because he’s an A-list criminal, he’s one of the celebrity criminals.

Andrew:         Right.  In order to protect his safety.  That decision was not made by the judge or by the prosecutors, that decision is made by the Warden at Rikers Island.  I’m gonna quote from the Law & Crime Magazine here, which was talking about the case which says, in quoting the prosecutor, says “it’s not unusual when a celebrity or well-known individual is incarcerated in a federal facility to be put into this type of confinement.  We’re concerned for the individual’s safety, ie, that another inmate might go after Manafort to make a name for themselves in the jail.” 

Thomas:         Have these people never seen Shawshank Redemption?

Andrew:         Yeah.

Thomas:         It’s the evil warden that puts people in the SHU.

Andrew:         Yeah! [Sighs]

Thomas:         It’s not the judge!

Andrew:         And then, and I wanna do 60 seconds on solitary confinement.

Thomas:         Yeah.

Andrew:         As is practiced against tens of thousands of street criminal defendants, is monstrous and shocking to the conscience.

Thomas:         Yeah. 

Andrew:         I’m gonna read you from the government’s filing on pages 3-4 describing what poor Paul Manafort actually went through. 

Thomas:         [Laughs]

Andrew:         Specifically, “contrary to Manafort’s assertions about his jail conditions, Manafort is in a private unit in which he can review materials and prepare for trial.  Moreover he’s not confined to a cell.  Between the hours of 8:30 am and 10:00pm-

Thomas:         [Laughs]

Andrew:         -Manafort has access to a separate work room at the jail to meet with his attorneys and his legal team.  Visitor logs from the prison indicate that each week Manafort has had multiple visits with his legal team.”  Then there’s footnote 3: “Among the unique privileges Manafort enjoys at the jail are a private, self-contained living unit, larger than the other inmate’s units, his own bathroom and shower facility, his own personal telephone, his own workspace to prepare for trial.  Manafort is also not required to wear a prison uniform-

Thomas:         Wow.

Andrew:         -on monitored prison phone calls Manafort has mentioned that he is being treated like a (quote) ‘V.I.P.’ (end of quote).

Thomas:         [Laughs]

Andrew:         Back to the-

Thomas:         Talk about a bad document, because didn’t he try to complain about this and that was part of his appeal or something?

Andrew:         Yeah.

Thomas:         Talk about a bad document!  Oh, let me check this transcript where it says you said you’re being treated like V.I.P.

Andrew:         And let me point out, those are calls between Manafort and his family. 

Thomas:         [Laughs]

Andrew:         No, seriously, because calls between him and his lawyers are not monitored.

Thomas:         They’re protected, yeah.

Andrew:         For attorney-client privilege.  Back to the text:  “Manafort also has a personal telephone unit which he can use over 12 hours a day to speak with his attorneys.  According to prison telephone logs in the past 3 weeks Manafort has had over 100 phone calls with his attorneys.”

Thomas:         This guy has a better social life in prison than I do!

Andrew:         Yeah!  And another 200 phone calls with other persons!  Yeah.

Thomas:         Yeah, can I go to…

Andrew:         And one unreturned call from Heath Enwright.

Thomas:         [Laughs]

Andrew:         He called me last night, it was great!

Thomas:         That would’ve been my government legal brief.  This guy has several a minute failed phone calls to Heath Enwright.  But other than that it’s great.

Andrew:         Those telephone logs indicate that Manafort has spoken to his attorneys every day, often multiple times a day.  He also – and again, I just want you to realize, this is a person who is supposedly in a maximum security facility for committing multiple federal felonies.  He also has access to a personal laptop that he’s permitted to use in his unit to review materials, prepare for trial.

Thomas:         100% this is better than my actual life.

Andrew:         Yeah, yeah!  He can sit there, is there anything to stop him from, I dunno, playing video games on the laptop?  Who the hell knows?

Thomas:         Sounds awesome.  You know what I bet also isn’t part of his imprisonment?  Seeing Frozen seven times a day.  I’ll bet that isn’t part of it!

Andrew:         [Laughs]

Thomas:         Andrew, what level of crime do I need to do to get this setup? 

Andrew:         Yeah.

Thomas:         Is there a lighter crime that I could – I’m not talking for life, maybe like a month or two, just a nice little break from it all.  Just saying.

Andrew:         I know what else you want to be asking.  So you don’t wanna watch Frozen, but the question you’re really asking is, can Paul Manafort download porn on his laptop and watch it from his solitary confinement?

Thomas:         I was gonna say the Sharks, but yeah, okay.  Sure.  Equal.

Andrew:         The answer to that is (quote) “the jail has made extra accommodations for Manafort’s use of the laptop including providing him an extension cord to ensure that the laptop can be used in his unit,” by the way, that’s supposed to be his cell, “and not just in the separate workroom.” 

Now again, he can stay in the workroom until 10 pm, so I dunno what Paul Manafort is doing on his laptop after 10 at night in his private jail cell.

Thomas:         Working really hard on his defense.

Andrew:         That requires an extension cord so that he can continue to use his laptop, but Paul Manafort is looking at porn on his laptop after 10 o’clock at night.

Thomas:         Well is there like a prison wifi, you think?

Andrew:         Sort of.

Thomas:         [Laughs]  

Andrew:         There’s a note on that! 

Thomas:         Really? [Laughs]  

Andrew:         This is footnote 5.  No, no no!  Footnote 5: “although the jail does not allow prisoners to send or receive emails, Manafort appears to have developed a workaround.  Manafort has revealed on the monitored phone calls that in order to exchange emails he reads and composes emails on a second laptop that is shuttled in and out of the facility by his team.  When the team takes the laptop from the jail it reconnects to the internet and Manafort’s emails are transmitted.”

Thomas:         Wow.

Andrew:         Yeah!

Thomas:         [Sighs] Okay.

Andrew:         So that’s the solitary confinement of which, which Judge Amy Berman Jackson had nothing to do with, of which the President of the United States has complained is unfair to poor ostrich suit wearing Paul Manafort.

Thomas:         Did you even read- Sorry.  Did you read the part of his tweet where he said “not even Al Capone was given this treatment?”

Andrew:         Well that’s true.  Al Capone did not get to watch internet porn while he was in prison.

Thomas:         Yeah, he didn’t have his laptop.

Andrew:         Yup.  I wanna say, picking up the pin from before, solitary confinement is a horrible thing and I am going to include a link in the show notes.  New York, for example, has pending a law called HALT, which is designed to stop putting prisoners in solitary confinement.

Thomas:         Yeah.

Andrew:         Yeah.  Look, solitary confinement-

Thomas:         And there’s these cases where they put ‘em in there for just, like, 40 years.  What was that one?

Andrew:         Yeah.

Thomas:         The guy died recently that was in SHU forever.  I don’t understand it.

Andrew:         Yeah.  The psychological evidence, this is from an advocacy organization called The Appeal.  (Quote) “Solitary confinement causes extreme suffering, particularly over prolonged periods.  Anxiety, panic, rage, paranoia, hallucination, and in some cases suicide.”  It’s a terrible, awful thing and no one should be going through it.  Paul Manafort is not going through it, and that’s preposterous.

Thomas:         We shouldn’t want – that’s not a-

Andrew:         Correct, correct.

Thomas:         We shouldn’t be rooting for psychological torture of our-

Andrew:         Correct, absolutely 100%.  100%.  Solitary confinement is super bad, but A, it’s not imposed by the judge and B, it’s not what Paul Manafort is going through.

Thomas:         Well we solved all that.  It’s time to finally get to our main segment, right?

Andrew:         Yes.

Thomas:         Okay, at long last.  But first we’re gonna take a quick break.

[Commercial –]

Andrew:         Hey, this is Andrew.  Throughout this segment I mistakenly looked at the wrong line on the sentencing table and I described Roger Stone as having an offense level of 28, when in reality the offense level is 29, so you should – every time you hear me say “28” you should mentally replace that with 29, I apologize for the error.

Roger Stone Sentencing

[Segment Intro]

Thomas:         Alright, we’re all on the edges of our seats, it’s time to get to our main segment.  I want to give you a little congratulations, you got through a lot of bullet points there, I was worried.

Andrew:         [Laughs]  

Thomas:         But now here’s the main bullet point.  Wow.  This is probably the biggest whopper of all of them, right?

Andrew:         It is and I just want us to be as clear as we can about how unprecedented and what a blow to democracy this is.  So the story you’ve all been following is that the Department of Justice, by and through Bill Barr, directly intervened in the Roger Stone sentencing and directed that the attorneys on that case file a supplemental sentencing memorandum recanting their original position, and then all four of those lawyers resigned.  Three resigned their careers in their entirety.  This is every bit as bad as everybody is saying, if not worse, and I want to go through all of that.

I thought I would start, because I’ve gotten this question from a bunch of folks, I guess at its broadest to sort of, who is the Attorney General?  What’s his job?

Thomas:         Yeah.

Andrew:         Is it so bad that Bill Barr is Donald Trump’s handpicked guy?  I thought the President got to pick the Attorney General?

Thomas:         Right.

Andrew:         Look, there’s a tiny kernel of truth to that so I think it’s really, really important to go through.  So the Attorney General, not a position created in the constitution.

Thomas:         Huh.

Andrew:         The Attorney General was created by the Judiciary Act of 1789. 

Thomas:         Oh.

Andrew:         Remember, Article 3 just says the judicial power of the United States shall be vested in one Supreme Court and such lower courts-

Thomas:         As they see fit, basically.

Andrew:         Congress may, yeah, time to time create.  The Judiciary Act of 1789 created those inferior courts.  This is a little sidebar, our next President can create new courts if she has a Democratic Congress.

Thomas:         Uh-huh.

Andrew:         So the Congress created-

Thomas:         Wink, wink. 

Andrew:         Yeah!

Thomas:         [Laughs]  

Andrew:         The Congress created a whole bunch of courts and along with it the executive position of Attorney General.  In 1789 the job of the Attorney General was (quote) “to prosecute and conduct all suits in the Supreme Court in which the U.S. shall be concerned.”  From 1789 to 1870 the federal government grew rather massively.

Thomas:         Hmm.

Andrew:         Nothing compared to today.

Thomas:         Yeah.

Andrew:         In 1870 the position was reorganized a little bit, so that job description representing the U.S. before the Supreme Court was handed over to a new position called the Solicitor General, who is now the 4th highest ranking official in the Department of Justice, who still appoints – appoints, who still reports to the Attorney General.  In other words, it’s still part of the Attorney General’s overall powers, it’s just going into court. 

By 1870 what Congress realized was that you might have somebody who’s a really, really good trial lawyer who you would want to go into court, but that would be different from the person who’s going to oversee the entire Department of Justice.  That’s what the Attorney General does.  So the Attorney General is the nation’s chief law enforcement officer, he oversees all prosecutions for all federal crimes.

Now there’s some weirdness here, because the Attorney General is also in the President’s cabinet.  The Attorney General also advises the President, so I want to be clear that there is not a responsibility for the Attorney General to be independent of or hostile to the President, that is not the law.

Thomas:         Right.

Andrew:         There is, however, a very, very easy and straightforward responsibility that every lawyer understands.  That is that the Attorney General’s client is the United States of America.  Even if your contact to that client is the President of the United States.  Let me give you a really clear, crystal clear analogy from my profession as a private lawyer who primarily represents small businesses. 

If I represent a business that has 50 employees, that would be on the large scale of my clients, but suppose I represent a decent-sized, medium-sized business and I got hired by the CEO.  If I am hired to represent SmithCo Incorporated, I have a fiduciary, legal responsibility to act in the best interests of SmithCo even if that’s not in the best interests of Thomas Smith who hired me.

Thomas:         Hmm.

Andrew:         This is something every single lawyer understands.  It is Rule 1.13 of the Ethics Rules.

Thomas:         That sounds like an early rule.

Andrew:         Yeah!

Thomas:         [Laughs]  

Andrew:         It says “if a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in an action that is a violation of a legal obligation to the organization and that is likely to result in substantial injury to the organization, then the lawyer shall proceed in the best interests of the organization.”

Thomas:         So let me try to – I’m gonna try to say this and keep a straight face.  What you’re saying is Bill Barr works for [Laughs]  Sorry!  Hold on, hold on!  [Laughing] Bill Barr works [Laughs]  for us?  [Laughs]  I can’t!  I can’t do it.  Bill Barr is supposed to work for us, is what you’re saying.  Is that?  I can’t get through that sentence!

Andrew:         Bill Barr is supposed to work for us, and every lawyer that I know of understands this conflict well and has had to make tough conversations.  I’ve got a tough conversation that I have to make with one of my clients when we’re done recording!

Thomas:         Ooh, yikes!  I hope it’s not me!

Andrew:         [Laughs]  Fortunately not you.  But that person sent me an email while I was prepping for the show that said something that could be construed as not working in the best interests of the company, even though this is a very, very small company. 

Thomas:         Uh-huh.

Andrew:         This is not a 50 person, this is a 5 person company, and this is the guy who hired me.  It’s not a close call, it’s not even an option.  I’ve got to call that person up and say “hey, this would be really, really good for you to do this, and really, really bad for the company and I can’t help you do it.”  That’s my job!  That’s the job of any lawyer who’s ever represented more than one person at any time.  It’s not a question mark, it’s not a “well maybe,” it’s not a dilemma, it’s 100% obvious.  Okay.

On top of that the Attorney General of the United States, as we pointed out, is a creation of Congress.  So it’s an executive branch appointee, they serve at the pleasure of the President, they can be hired and fired by the President, but the case law, super clear going back what is now almost 100 years.  This case is called McGrain v. Daugherty, gonna link it in the show notes. 

I’m just gonna read you the sentence: “The functions of the Department of Justice, the powers and duties of the Attorney General, and the duties of his assistants are all subject to regulation by Congressional legislation and that the department is maintained and its activities are carried on under such appropriations as in the judgment of Congress are needed from year to year.” 

So point number one, Bill Barr represents us and not the President.  Point number two, Bill Barr’s duties are circumscribed by Congress, and not by the President.  I would like for you to keep that in mind when it comes to this case. 

Can I give you one more piece of background that I think is meaningful here?

Thomas:         Um, yes?

Andrew:         Yeah, okay.  On May 10th, 2017, uhh, our g-good friend? Question mark?  Then Attorney General Jeff Sessions sent out a memorandum throughout the entire Department of Justice.  It was entitled ‘Memorandum for All Federal Prosecutors.”  So it went to everybody. 

Here’s what that says: “I’m giving you directions on how to bring cases, how to charge people. The directives are simple but important.  They place great confidence in our prosecutors and supervisors to apply them in a thoughtful and disciplined manner with the goal of achieving just and consistent results in federal cases. 

First, it is a core principle that prosecutors should charge and pursue the most serious readily provable offense.  This policy affirms our responsibility to enforce the law, is moral, is just, and produces consistency.  It fully utilizes the tools that Congress has given us.  By definition, the most serious offenses are those that carry the most substantial guidelines sentences.

Second, prosecutors must disclose to the sentencing court all facts that impact the sentencing guidelines or mandatory minimum sentences and should, in all cases, seek a reasonable sentence under the factors in the law” which is 18 U.S.C. § 3553. “In most cases, recommending a sentence within the advisory guideline range will be appropriate.  Recommending for departures or variances,” that is, sentences outside the guidelines range, “requires supervisory approval and the reasoning must be documented in the file.”

There’s more stuff, but those two principles are, I think Jeff Sessions was correct here, pretty darn clear.  Charge the highest offense you can, seek the highest possible sentence under the sentencing guideline, the sentencing guidelines are to guide what you tell the Court, a criminal defendant should be sentenced, and if you want to depart from that in any way or vary from that, if you want the court to issue something outside the guidelines range, you’ve got to get approval from your supervisor and you’ve gotta write a detailed memorandum to the file.

Pretty clear, right?

Thomas:         Yeah.  Sounds like it all works normally.  So did that happen?

Andrew:         Um, kind of!  Yeah!  On November 15th, you might recall some important things were goin’ on in November in the House of Representatives relating to investigating the President, so he didn’t say anything at the time.  November 15th was when Roger Stone was found guilty of 7 counts, 7 different federal felonies.  One count of obstructing a congressional investigation, five counts of making false statements to Congress, and one count of witness tampering – that was threatening to kill Randy Credico’s dog if he testified in connection with the Mueller investigation.  That was November 15th.

So on Monday, February the 10th, both sides filed their sentencing memoranda simultaneously with Judge Jackson in the case.  I’m not even gonna talk about Stone’s memoranda because, again, it’s what you would expect a criminal defense lawyer to do.  It says you should go outside the sentencing guidelines, you shouldn’t apply them because of all these additional reasons, but we’re gonna talk about what the federal government did.

Here I wanna share something, I haven’t seen this from any other source.  This is, I think, really, really important to understand as part of the process.  Typically, the way in which the prosecutor will develop their sentencing recommendation if it is a guideline sentence, and let’s sidebar on that.

We’ve talked about the sentencing guidelines a lot, we’re gonna talk more in this section, but essentially what you do for a guideline sentence is you follow the sentencing memorandum and it’s a matrix.  You start adding up, okay, what number is assigned to the offense?  Bigger numbers are worse.  What modifications are there that go up or down within the sentencing?  For example, if you accept your guilt you get a two-level reduction.

Thomas:         Hmm.

Andrew:         So your 19 becomes a 17.

Thomas:         Something tells me Roger Stone will maybe not be doing that.

Andrew:         Yeah, shocker!  Roger Stone didn’t do any of that and Roger Stone, in connection with making false statements to Congress, intimidated a witness and so-

Thomas:         Look, even the second most corrupt President of all time, that Roger Stone has tattooed on his back, accepted his guilt more than Roger Stone accepted his guilt.  Nixon [Laughs]  

Andrew:         Correct.

Thomas:         At least resigned!

Andrew:         Yeah!  No, that’s absolutely correct!  So what you do is you start adding, you start with the base offense level, you add up the enhancements, you subtract off any reduction for acceptance of guilt or other factors.  Providing assistance, we’ve talked about that before.  Then you get a number and then you look at it on the table and you go to, that’s a row, and then you go to the column that corresponds to the individual’s criminal history and then it spits out a range.  In this case, plugging in all those number spit out a range between 82 and 108 months.  Roughly 7-9 years in prison. 

The way in which you get to that number, this is the point that I haven’t seen elsewhere that I really, really want to emphasize, is by working with the parole officer that is assigned to this case.  So an employee of the government, completely independent to the prosecution, will prepare what is called a pre-sentencing report or PSR.  What happens is the probation officer, independent of the prosecution, meets with the criminal defendant and prepares a report, does extensive interviews, gathers information, will ask about your education, your financial status, your employment history, your health, your military record, your past and present history of substance abuse, alcohol use, your personal history, your family history, your prior criminal record. 

They do all of that work and then, not the prosecutor, not the person who was instructed by Jeff Sessions to get the highest possible sentence under the law, but this person will then prepare a PSR that says hey, I’ve reviewed the situation and here’s how I calculate the number on the sentencing table.  Let me say this, in these terms, I have never seen a case in which the government has sought a sentencing recommendation within the guidelines that does not follow the number that was computed by the PSR. 

So in my experience, when the government files a sentencing memorandum and they say “Your Honor, you should impose a sentence within the guidelines range and we have computed the offense level to be [29] with offense category 1, that means 82-108 months.”  When they report that [29], 100% of the time in my experience – and again, I am sure if you are a public defender maybe you have a different experience.

Thomas:         Mm-hmm.

Andrew:         Maybe you’ve seen a thousand of these cases, I don’t want to say that it must be the case.  I want to say that in my experience working with criminal defense lawyers and knowing a half-dozen prosecutors in Maryland and the District of Columbia, I have never seen a case in which that number is not the number that’s on the PSR. 

I cannot imagine, if it were to vary, that Stone’s memoranda would not point that out.  That would be a super easy basis to challenge the calculation.  You would say look, the government had a corrections official work with my client and they said the level was 21 and now they wanna make it a [29], that’s obviously unfair and not supported by a rational calculation.  And you’re on much better grounds to go to the court and say yeah, feel free to impose a sentence within the guidelines, Your Honor, but get the calculation right.

Thomas:         Hmm.

Andrew:         Don’t accept this inflated number, take the number that’s in the PSR.  That’s the way it works.  Now the PSR is confidential, it is not attached to the filings here, I can’t get access to it.

Thomas:         Oh.

Andrew:         Unless a party attaches it to the filings, so I am making what I consider to be an informed supposition, which is the fact that it was not cited in Roger Stone’s motion, in Roger Stone’s sentencing memorandum, but written by his lawyers on his behalf, leads me to believe with as much confidence of anything for a document that I have not seen that the PSR recommended the same offense level that the government adopted here.

Thomas:         Right.

Andrew:         That’s really – I’m not just sort of trying to impart legal arcane knowledge to you here! [Laughs]  Although I am!

Thomas:         Yeah.  I know that’s your kink!

Andrew:         Well, yeah.

Thomas:         [Laughs]  

Andrew:         It’s really important to know that this is what an unbiased observer, tasked with talking to Roger Stone, gathering all of his personal information, gathering all of the relevant factors under the law, said yeah, here’s the number.  The number’s [29].  So let’s talk about what happened.

Thomas:         I was gonna say, now they’re saying the number’s like zero, right?  We’re at zero?

Andrew:         [Laughs]  So here’s what they’re saying.  Government files that sentencing memorandum on Monday, February 10th.  Monday evening, our President tweets out [Impersonation] “very unfair, how could they possibly ask for 7-9 years for Roger Stone who did nothing wrong, witch hunt.”  In the morning, February 11th, Tuesday, the next day, the prosecutor’s in the case informed Judge Jackson that they will be filing a supplemental sentencing memorandum.

Thomas:         Uh-huh.

Andrew:         That they will be replacing their recommendations from the day before.

Thomas:         Just gonna make some corrections, huh?

Andrew:         Yeah.  Corrections is the right word, okay?  I have had [Laughs] more often than I’d like!  Lawyers have to do this, where you will file a pleading and then you’ll have to file some kind of alternative pleading to say oh yeah, the document that I just filed had this typographical error in it.

Thomas:         Yeah, there’s a page that’s just a copy of my butt in there, sorry Your Honor.

Andrew:         [Laughs]  

Thomas:         It’s just an … accident.

Andrew:         That’s only happened to me twice! 

Thomas:         [Laughs]  

Andrew:         Don’t bring that up!  [Laughs]  No, in federal court your filings are all online and, you know, lawyers – we’re real good at a lot of things but-

Thomas:         Well, you’re gonna make typos, mistakes happen, I mean-

Andrew:         Yeah!  And a lot of us suck at converting to PDF and then attaching the right documents.

Thomas:         Yeah! [Laughs]  

Andrew:         It happens.

Thomas:         So what you’re saying is “Ok Boomer?”  It’s one big OK Boomer.

Andrew:         [Laughing] It’s one big OK Boomer, yeah!

Thomas:         Okay, so I get it.  What typo were they correcting in this case?  Were there some lower case letters should’ve been upper case?  Some commas, maybe a clause they left incomplete?  What do we got, what’re they correcting?

Andrew:         Uh, what they are correcting is the substance of their analysis that they had made the day before.

Thomas:         So correction, everything we said the day before was wrong? [Laughs]  

Andrew:         Everything we just said to you was wrong.

Thomas:         Minor correction!  [Laughs]  Completely disregard the whole sentencing memoranda.  Is that it?

Andrew:         That is it.  I’m gonna go through, they make four arguments.  It is really, really important, but before we delve into just how bad these arguments are, and I don’t mean that the arguments are indefensible.  The arguments are potentially defensible but deployed with selective, these kinds of arguments are the kinds of arguments that literally every criminal defendant can and now will raise.  Now the government has taken a position that is going to hamstring future prosecutors who are trying to really put away bad guys like [Laughing] Roger Stone.  It’s bad.

But before we get there, to say on Monday yeah, you should sentence this guy according to the guidelines and then to come back on Tuesday and say welll, if you wanna depart from the guidelines this is a good case to do it in is an unprecedented-

Thomas:         It’s just bananas. 

Andrew:         An absolutely bananas thing to do.  And let me do – gosh.  I wish I could do more on this! [Laughs]  

Thomas:         I know, we’re already-

Andrew:         In terms of talking about the guidelines, I know, I know.  The sentencing guidelines were declared advisory in 2005 by the U.S. Supreme Court in two cases called Booker and Fanfan.  Prior to that you, as a judge, could not sentence someone outside the guidelines.  After 2005 the guidelines are advisory but presumptive.

Thomas:         Right.

Andrew:         So to go outside the guidelines the judge has to file an explicit memorandum explaining why that judge did not apply the sentencing guidelines, because the sentencing guidelines are meant to take into account all of the factors that are crucial to sentencing someone.

Thomas:         And we’ve talked about this before, isn’t this somewhat an effort to make sure judges are putting away people way too long?  Or actually is that wrong?

Andrew:         It’s both!  Yeah. 

Thomas:         I guess it’s also-

Andrew:         It’s actually both.

Thomas:         Okay, gotcha. 

Andrew:         Yup.  So it says, and this was the section, the law still says this but this is what the Booker and Fanfan cases had to modify, that says “the court shall impose a sentence of the kind and within the range” referred to in subsection (a)(4), “unless the Court finds” and (a)(4) is what the guidelines say.  “Unless the Court finds that there exists an aggravating or mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission in formulating the guidelines that should result in a sentence different from that described.”  Then provides a whole list of instructions about how the court can go about doing that.

So, in other words, courts start with the guidelines in very, very, very, very rare cases courts will issue a sentence that departs from or varies from the guidelines.  We’ll do more of a deep dive in that as we go on, but that’s what you need to know.  For the government to say “you know, this might not be a bad time to go outside the guidelines” is unprecedented after they have said “you should follow the guidelines,” and the reasons here are really, really bad reasons.

There are only four of them, I wanna hit them super quickly.  First is that the most serious sentencing enhancement in this case was that Roger Stone got 8 additional levels for threatening to cause physical injury.  Those were the physical threats carried out against Randy Credico.  “I’m gonna beat the crap outta you and murder your dog.”  The government’s memo says that has been disputed by the victim of that threat, Randy Credico, who asserts that he did not perceive a genuine threat from the defendant but rather state (quote) “I never felt in any way that Stone himself posed a direct physical threat to me or my dog” (end of quote). 

The memo itself then says, gives its own refutation!  You don’t need me here other than to read this to you.  “While Mr. Credico’s subjective beliefs are not dispositive as to this enhancement,” I’m not gonna read the second half of that sentence ‘cuz that shouldn’t begin with a “while!”  That should say, [Laughing] Mr. Credico’s subjective beliefs are not dispositive as to this enhancement.

Thomas:         Okay, we don’t have time but I was gonna ask, does that matter with this charge?  That he felt it was real, or whatever?

Andrew:         No!  It is an objective standard.

Thomas:         Okay.

Andrew:         And we have talked about this in T3BE all the time.  The question is did Roger Stone threaten a witness with violence?  And the answer is yes!

Thomas:         Yeah.

Andrew:         The fact that Credico is Stone’s friend, that doesn’t matter!  If I threaten you with violence and then later we make up, that’s still, I’ve threatened you with violence.  So that’s argument number one.

Argument number two says that the 2-level enhancement for obstruction of justice overlaps to a degree with the offense conduct in this case, because he was also charged with obstruction of justice.  I spoke with three separate prosecutors and they told me, the specific section in the manual here, this is §3C. 1.1, is that you do not get that enhancement, you don’t get those extra two levels when you obstruct justice when you’re only convicted of obstruction of justice.

Thomas:         Mm-hmm.

Andrew:         So that they don’t double dip, but if you’re convicted, as Roger Stone was, of making a false statement, witness tampering, and obstruction of justice you absolutely get the enhancement because remember that the way in which the sentencing guidelines work is you get the highest top level offense is your base starting number, so you’re not being sentenced for the obstruction of justice, you’re being sentenced for whatever offense gets you the top line. 

It is 100% appropriate in all of those cases to add two levels for obstruction of justice and they expressed real concern to me.  They’re like, yeah, look, we seek a §3C. 1.1, those two levels, all the time, and now we’re gonna have in black and white, a position that contradicts the normal practice of this office.

Third, the Court must avoid warranted sentencing disparities.  There they say Paul Manafort only got 13 months … (in his first conviction).

Thomas:         [Laughs]  

Andrew:         Then a bunch of other folks got lesser time.  “While these cases involve lesser offense conduct” [Laughs] “the sentences imposed constituted a fraction of the penalty suggested by the advisory guidelines in this case.”

Thomas:         Yeah and also this guy got a speeding ticket and he just had to pay a couple hundred dollar ticket!

Andrew:         It’s preposterous, right?  That is such a stupid argument we don’t need to say anything more about that. 

The last argument is “finally, the Court should consider the defendant’s advanced age, health, personal circumstances, and lack of criminal history in fashioning an appropriate sentence.”  This may be the very worst sentence in this document to prosecutors, because that’s what the guidelines are supposed to do.

Thomas:         Right. 

Andrew:         Now, again, we can have a debate, and it’d be a really good debate, about whether mandatory minimums and statutory guidelines are a good idea.  I think there’s strong evidence that they’re horrible in a great many cases, but the question is, do we get to junk them for the President’s pal, Roger Stone-

Thomas:         Yeah.

Andrew:         While still imposing them on 2 million predominantly African American individuals in this country.  You cannot have it both ways.

Thomas:         Yeah, weird that all of a sudden now the justice system is too harsh for these people.

Andrew:         Well, and you may be thinking oh, well, Andrew-leftie wants to bring in racism.  Nope!  This is within their own memorandum.  “As noted above, a sentence of 87-108 months more typically has been imposed for defendants who have higher criminal history categories or who obstructed justice as part of a violent criminal organization.  See e.g. U.S. v. Bender, affirming 8-level enhancement for defendant involved in a gang war. And See U.S. v. Denim, affirming 8-level enhancement for defendant who threated to rape and kill the wife of a cooperating witness in a drug distribution conspiracy prosecution.”

Let’s take a look at both of those.  The first one is just like look, come on, Roger Stone’s not a gang, he’s not one of those people.  The Salazar citation, he threatened to murder and kill someone’s dog!  That’s literally the exact same enhancement, the only difference that the government adds in as well-

Thomas:         The law views dogs the same as people?

Andrew:         [Laughs]  But that one is a drug distribution conspiracy.  So you see, again, the bias with which this was written.  Stone wasn’t a gang banger, come on!

Thomas:         He wasn’t doing something violent like selling drugs he was just trying to help Trump undermine our entire country!

Andrew:         Yeah.

Thomas:         Just normal white people stuff.

Andrew:         Yup.  So this brief is monstrous and, has been reported – so when the government filed its supplemental memorandum it did so under a new person just assigned to this case, Thomas Crabb – excuse me, John Crabb Jr.  All four lawyers who were on the original memorandum resigned.  Filed motions to withdraw from the case. 

Let’s be 100% clear why they did that.  They did that because they know it is a violation of the code of ethics, the ABA code of ethics, and potentially the law for them to lie in a pleading.  That is the only reason you would say “I can’t sign this and I’ve gotta move to withdraw.”

Thomas:         Well… and wouldn’t you be like clownhorn this clownhorn.  This is stupid! [Laughs]  

Andrew:         Yeah.  That happened.  So again, I talked to two separate prosecutors in the D.C. office who told me that, of the folks who were involved, that these are top notch individuals and, in particular, that Jonathan Kravis, he appears as the lead signature, is (quote) “a clownhorning rock star in the office” (end of quote).  Is just somebody who is universally respected in the U.S. attorney’s office, a topnotch lawyer, the kind of person about whom they say “gosh, we’re sure lucky to have this person being willing to work in government law and not out there earning millions of dollars in private practice.”

Thomas:         Right. 

Andrew:         He resigned entirely.

Thomas:         Wow.

Andrew:         They are now no longer lucky to have him.  It is, as we said at the beginning of the show, I understand that reaction, I commend the four individuals who tried to draw their line in the sand.  But this is a no-win situation, we need people like this on the inside making government function.  This is a nightmare and the only positives that I can add on the end of this is that we have not heard the last of this cover up.  There are two things that I believe – I believe Judge Jackson will do at least one of these, but there are two things she can do in order to gain additional information in this case.

Let me set out what both of those are.  The first is, as a lawyer, you don’t just get to quit a case.  You have to move to withdraw.

Thomas:         Yeah.

Andrew:         Now, let me say, the D.C. rules on moving to withdraw are about as liberal as you get.  Of course they are!  Because lawyers quit, they change firms, they move out of State, they start selling track lighting.  Lawyers do a lot of things where you would say hey, I’m no longer a lawyer anymore so you should let me out of this case.

Thomas:         Right.

Andrew:         Which, by the way, is what Kravis’ motion to withdraw says!  It says “I don’t…”

Thomas:         He’s not messing around!

Andrew:         “I don’t work for the Department of Justice so you should probably let me out.”  But, and this is D.C. local Criminal Rule 44.5(d).  It says you’ve gotta move to withdraw and then it says (quote) “the Court may deny a motion to withdraw if the attorneys withdrawal would” (and then it lists a couple of other things, but) “would not be in the interests of justice.”

Judge Jackson can say “I wanna rule on this motion to withdraw but I’m gonna need some additional information from you folks first.”  That’s kind of item number one.  I don’t know if Judge Jackson will do that, and part of that is because she may have sympathy for the lawyers who have done the right thing in this case.  She may say yeah, I’m not gonna make you carry the laboring oar here, you did everything you could.”

Here’s the second thing she can do, she’s gotta rule on these proposed sentencing memoranda and she can request that the Department of Justice turn over all of their recommendations in every case in the past two years.  She can say hey, I wanna know if you’ve taken any position to the contrary that you did in this revised sentencing memorandum within any prosecution in the last two years.  She has broad powers to make the government tell the truth.  We’ll see. 

So if I were Judge Jackson I would go both avenues.  I have been told that Crabb is a civil servant, he’s not a hack.  We know, the lead U.S. attorney who took over this case is Timothy Shay.  He is a Barr hack, he is a Barr deputy, he is the person whose fingerprints are all over doing the dirty work in cases where Bill Barr is trying to put his thumb on the scale.  Tim Shay I wouldn’t trust to walk my dog.  (Because I love my dog).  But, you know, you can’t do everything.  He’s got deputies working for him and everything I’ve been able to dig up suggests that there’s no reason to think that Crabb is part of the conspiracy, part of the cover-up, part of the inner circle.

Judge Jackson is gonna have to figure out where she’s gonna get her information from, but she’s got sources, she has powers.  This will not go away. 

Thomas:         Well, until Trump just pardons Stone, right?

Andrew:         Well, that’s an excellent – we’ve gotta bring this segment to a close-

Thomas:         Yeah, about 20 minutes ago.

Andrew:         -half an hour ago?

Thomas:         Yeah.

Andrew:         Yeah.  But that’s – this is the scariest part of all of that, which is Donald Trump just wrecked the careers of four prosecutors for show.  For nothing.  Because the point of this, if this hasn’t been made perfectly clear, what Donald Trump is doing is creating a narrative, laying the groundwork so that when he pardons Roger Stone and when he pardons Paul Manafort he will be able to say “I’m not just pardoning them because they’ve covered up my criminal enterprises, I’m pardoning them because of blah blah blah and blah.”

There’s no doubt in my mind Judge Jackson is gonna award a guideline sentence.  Judge Jackson is going to sentence Roger Stone to 7-9 years in jail.  She’s probably gonna pick the smallest possible end, and it’s not gonna matter.  Trump will then say see?  She went above what- and there is, it really smacks of the mafia-esque tendencies of this President.  The one that we saw on the July 25th call saying to a foreign leader “yeah yeah yeah, that’s all great, we’ll get you your money, but first you gotta do us a favor.” 

Bringing prosecutors into his office and saying no, no, you’ve gotta make this position.  You’ve gotta advance this argument in black and white, which by the way it doesn’t really matter what you’re gonna do because I’m gonna pardon the guy anyway.  It’s a test of loyalty, it is a mob-boss-like exercise of power.  It’s gross.

Thomas:         I mean the fact is that even if we beat Trump in November, which is still an “if,” everybody.

Andrew:         [Sighs] Yeah.

Thomas:         In the lame duck isn’t he just gonna pardon all of these people that he cares about?

Andrew:         Why would you think it would take until the lame duck?  Alex used to say that to me, and I agreed with him prior to February 5th.

Thomas:         [Groans] I don’t know.

Andrew:         We’re 8 days in, we’re already here.  The remedy for this is impeachment-

Thomas:         Yeah.

Andrew:         And the Republicans in the Senate have said yeah, well-

Thomas:         Well, I get that, but I could see Trump thinking maybe this isn’t the best optics for my reelection.  [Laughing] He’s not worried about getting impeached!  Please.  It’s just that he might consider waiting until after the election for electoral purposes.

Andrew:         For what?  I just want you to imagine, so you’re a swing voter right now and right now you’re on the fence about whether to reelect Donald Trump.

Thomas:         Yeah.

Andrew:         Which one of these process crimes is gonna push you over the fence?

Thomas:         No, I think the optics of pardoning Roger Stone would affect some people, I honestly do.  It’s so weird because you’re right to point out that it’s very hard to get into the minds of these people who are swaying, [Laughs]  who are dithering on Trump, it’s very difficult to imagine who that is.

Andrew:         On the one hand, the trains run on time.

Thomas:         [Laughs] But we need to go 30 minutes ago, so we’ll have to leave this for another time.  So, yeah, this is horrible.  Pretty much … the worst?

Andrew:         Yeah.  Look, this goes back to one of the things we have been saying since February of 2017, which is we have to do our best to fight our holding actions right now.  We’re a week and a day past Trump’s acquittal and he’s done everything we’ve described in this show and more.  That will not stop, the pace will not stop, and we just have to make sure we are documenting, that we are bringing pressure where we can and we’re trying to make the case.

I’ve used this analogy before.  There is no more Yodel Mountain.  We ascended and went off the cliff on Yodel Mountain, and for some reason the climber-

Thomas:         It’s just never ending.  Just goes forever.

Andrew:         It just hovers, yeah.

Thomas:         We did the thing in like Mario where you go off the screen and then you come back on the other side of the screen.

Andrew:         Yeah!  We just did that with Yodel Mountain.  He’s warped to another world, that’s right.

Thomas:         Not what I was saying, that’s okay.  [Laughs]  

Andrew:         Okay, well that’s what I thought you were saying.

Thomas:         No, when you run on the screen and then you just come out to the left.  Like you run right and you’re just still on one screen, it doesn’t warp.  You know?

Andrew:         Oh I thought how you were talking about how in the original you could jump up and then run along the top and then go to the secret warp area.

Thomas:         [Laughs]  

Andrew:         Okay, anyway, this is not a video game podcast, the analogy still holds for both of us I think.  It’s going to be real bad and I get that.  We are trying to make sure everything is not a funereal death march on this show, we try to bring you some uplifting stories, some baseball law stories.  But you, if you’re listening to this show and you care about the rule of law and you care about the future of the republic, you have to not let them grind you down.  They are counting on that, they are counting on you saying “I’m sick of fighting so I’m just gonna give up.”

Let me tell you, if you get sick of fighting and you give up it will get worse.  You have the power to make it less worse.  I know that’s not super inspiring, but that’s where we are, so that’s where we are.

Thomas:         Less worse is better than worst worse, everybody.  That’s how it goes.

Andrew:         Exactly.

Thomas:         Alright, we need to thank our new patrons from First Timer Friday on!  Andrew, why don’t you start us off!

[Patron Shout Outs]

Thomas:         Alright, it is time for T3BE, 90 minutes into the show.  Here we go!

T3BE – Question

[Segment Intro]

Andrew:         Alright Thomas, a plaintiff sued a defendant, alleging she that was seriously injured when the defendant ran a red light and struck her while she was walking in the crosswalk.

Thomas:         Hmm.

Andrew:         During defendant’s case, a witness testified that the plaintiff had told him that she was (quote) “barely touched” by the defendant’s car.

Thomas:         [Sighs]

Andrew:         On cross examination, should the court allow the plaintiff to elicit from the witness the fact the he is an adjuster for the defendant’s insurance company?

Thomas:         [Laughing] Oh, wow!

Andrew:         [Laughs] A) No, because testimony about liability insurance is barred by the rules of evidence.

Thomas:         Oooh.

Andrew:         B) No, because the reference to insurance raises a collateral issue. 

Thomas:         Geez.

Andrew:         C) Yes, for both substantive and impeachment purposes; or D) C) Yes, for impeachment purposes only.

Thomas:         This is brutal!  Here I thought it was gonna be hearsay!

Andrew:         [Laughs] Yup! 

Thomas:         And then when I was like-

Andrew:         Oh!  Curveball low and away?

Thomas:         Oh!  Thank god it’s not hearsay, and then we get to what the actual questions are and I’m like dangit!  I wish it was hearsay! [Laughs]  

Andrew:         [Laughs]  

Thomas:         Uhh, okay.

Andrew:         This would be an easy hearsay question.

Thomas:         Sure, assuming I can ever remember the stupid hearsay rules, which I can’t.  Umm, so okay.  Plaintiff sued a defendant, alleging seriously injured and then a witness– so the defendant is trying to defend themselves and a witness says that the plaintiff had told him – and this is apparently being allowed under hearsay somehow.  I guess against interest or whatever?  Statement against interest?

Andrew:         That’s exactly, since it’s not germane to the main question at all-

Thomas:         No, no, don’t help me at all.

Andrew:         Yeah, not that’s exactly-

Thomas:         A witness testified that the plaintiff had told him that she was “barely touched” by the defendant’s car.  Cross examination, should the court allow the plaintiff to elicit from the witness the fact the he is an adjuster for the defenders insurance company?  So you would think that would be allowed, because this seems sketchy to have an adjustor [Laughs]  the defendant’s insurance company, that seems like a conflict of interest, I’m amazed that we’ve even gotten this far in this process.

So, no because testimony about liability insurance is barred by the rules of evidence.  Now that actually sounds like something you’ve said, that you’re not allowed to talk about – now what is it?  You’re not allowed to talk about … something.  Damages?  It sounds like something you’ve told me before but I don’t think that’s gonna be the answer.  I mean maybe it will be, but if that’s the answer I’m not getting it. 

B, no because the reference to insurance raises a collateral issue?  [Sighs] I don’t know how it would be that.

C yes for both substantive and impeachment purposes, and D yes for impeachment purposes.  I’m gonna make a bold move that Andrew always loves when I do, and I’m sure I’ll be gone.  I’m gonna eliminate the “no’s” because I don’t get it.  If it’s one of the “no” answers, I’ve got nothing.  So I’m eliminating the “no’s,” hard elimination, I’m narrowing it down to C or D.

Now is it gonna be for substantive?  Impeachment feels good, that feels like something you’re doing.  Substantive purposes?  Substantive purposes.  What would that mean?  I can’t really call to mind what that precisely would entail.  I’m gonna go with D for impeachment purposes only, you know, I don’t feel that confident in this one but I just don’t know what substantive would be.  It seems like the only purpose I can imagine for bringing this up is to try to impeach the witness.  Um… Yeah, I dunno.

But I’m not lovin’ this one.  I wouldn’t be surprised if I’m totally wrong and it’s one of the “no” answers because I’m not really in love with the wording of any of these, but I’ll go D, final answer, and my streak may be over.

Andrew:         Yeah.  Since now you’ve actually answered I will point out you have a 6 question winning streak on the line with this one!

Thomas:         Yeah.

Andrew:         I didn’t wanna say that up front because no pressure or anything.

Thomas:         Oh please, as if I don’t already know!

Andrew:         [Laughs] And folks, if you’re listening and you wanna play along with Thomas you know how to do that!  Just share out this episode on social media, include the hashtag #T3BE, include your answers, your reasons therefore.  We will pick a winner, identify that person, name them on the show and shower them with never ending fame and fortune!  Fame and fortune not guaranteed.

Thomas:         Thank you so much for listening, go check out the YouTube, please please please!  Like and subscribe and do the little bell thingy, it will really help us and hopefully you’ll enjoy what we’re doing over there as well.  Please do it!  For me.  Just personally, personal favor.  Okay, thanks for listening, we’ll see you on Tuesday.

[Show Outro]

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