Advisory Opinions - Mar-a-Lago Search Part of Espionage Act Investigation

Episode Date: August 16, 2022

Ed O'Callaghan, partner at WilmerHale and former principal associate deputy attorney general, joins David and Sarah to discuss the news that the FBI’s search of former President Donald Trump’s home is part of an investigation into possible violations of the Espionage Act. What does that mean? How does this all work?   Show Notes: -French Press: Apply the Hillary Clinton Rule to Donald Trump Learn more about your ad choices. Visit megaphone.fm/adchoices

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one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we're going to talk Trump's search warrant. We're going to talk about the statute, the warrant was released, the exhibits to the warrant released. We have statutes that are applicable, laws that were applicable to the warrant. And to help us sort of talk through all of this in as much specificity as we reasonably can. Sarah, we've got a pretty incredible guest. I mean, it's such an incredible guest that it's just a reaffirmation

that this is in all ways the flagship podcast of the Dispatch Podcast Network. There is literally no one on the planet better to talk about the Espionage Act than Ed O'Callaghan. Let me just give you the briefest of bios of Ed. So Ed is the Senior Partner of Strategic Response and Investigations in Criminal Litigation at WilmerHale, which if for our Legal Eagle listeners, they'll know that WilmerHale is sort of that preeminent place for whenever you did commit crime or are accused of doing crime. He, though, worked on the McCain-Palin race, was at the Southern District of New York U.S. Attorney's Office, where he was the chief of the Terrorism and National Security folks, and then came to Maine Justice, headed up the National Security Division while I was there, and became the PADAG.

I know, I know, lots of acronyms. But PADAG, we've talked about it before on this podcast, sort of like the COO of the Department of Justice. There are no trains that move, let alone run, without that person knowing what's going on. It's the principal associate deputy attorney general. So it's P-A-D-A-G. And for some reason, that is pronounced pay dag. And so that means that Ed oversaw a lot of the Mueller investigation. I mean, Ed is the center of everything. And there was not an hour that went by when I was a DOJ that I was not texting Ed, calling Ed, going to Ed's office, asking Ed

for things. So I owe Ed quite a bit, but instead I'm going to force him to be on this podcast. Ed, thanks for being here. Good morning. Thank you, Sarah. Always a pleasure to speak with you. And good morning, David. Thanks for having me. I will just clarify one point on the bio. WilmerHale, being the firm that I'm at now, we represent people who find themselves in trouble. You don't come to WilmerHale. Oh, got it. You come here for representation. Yes. Allow us to help you out with that. Yes. So in any event, that's the only clarification I you out with that. Yes. Good clarification. That's the only clarification I would make on that. Good morning, everyone.

David, where do you want to start? You know, that's a really good question. And I thought I might start with the statutes involved in the Trump warrant might be a good place because I've seen a lot of confusion about that. And if you're looking at the warrant, what you see is that attachment B to the warrant says all physical property to be seized, all physical documents and records constituting evidence contraband, fruits of crime, or other items illegally possessed in violation of 18 U.S.C. Section 793, 2071, or 1519. And I thought we would sort of go through these one by one. And Ed, if you could explain to us sort of what is Section 793? Why, and with a specific question that I have, why would you talk about 793,

which is involving national information pertaining to the national defense, when there is also this 18 U.S.C. Section 1924, unauthorized removal and retention of classified documents or material? Why would one be there and not the other? And so just that's the launching question. And I know it's a lot of speculation. Yeah, well, look, I mean, part of this is we are, of course, hampered because we don't know exactly what the prosecutors who worked with the agents and got the authority to do the search know and how they're framing their investigation.

But, you know, 793 is somewhat it's called the Espionage Act, which, of course, everyone immediately goes to kind of a spying type of considerations. But it is typically kind of the go-to statute, broadly speaking, when you are investigating the potential unauthorized possession or dissemination of what's referred to as national defense information, the NDI, that's the first acronym I'll use, that may be contained in classified documents. And, you know, it doesn't, the fact that they've articulated 793 in the search warrant doesn't preclude them from pursuing

investigations if they uncover evidence from the fruits of the search, which points to violations of other statutes. But it does basically, that statute citation is what the prosecutors will use to go to the court to say, look, we are investigating, among other things, a 793 violation. I would suspect here it's this unauthorized possession or dissemination of national defense information. And we believe that, in fact, we're going to articulate to you in an affidavit that agents can swear, we believe that on these premises, there will be evidence, probable cause for this evidence of a violation of that statute or the other statutes that are cited.

But that doesn't mean, you know, at the end of the day, if they are pursuing charges, that they are restricted in pursuing charges on those statutes. that they are restricted in pursuing charges under the statutes. And what is national defense information? So that can be classified and it can also be unclassified, correct? Typically classified, you know, for sure. And national defense information is information that the kind of owner of the classified nature of the documents or the information has determined that the unauthorized release of that national defense information would cause some level of harm to the national security of the United States, right? So if you have an intel agency who owns, quote-unquote, owns the equity in the information, they will become the classifying authority

and determine where on the classification scale, confidential, secret, top secret, the national defense information that's contained in any data should be put on what level of confidential scheme, a classified scheme of documents. There's people complaining that the Espionage Act is just way overbroad, sort of a Rico-style complaint, that it's a catch-all that any federal prosecutor can basically storm your castle under the Espionage Act, and that it violates the First Amendment, it's overbroad, that this thing is a bad law to begin with. I'm wondering if we can actually take just a little bit of a walk

down memory lane. Maybe you can hit some of the Espionage Act greatest hits or lowest hits and a little bit about the Reality Winner case, which you were there for, obviously. Well, I mean, look, first of all, and it has to be stated that the Espionage Act is not used as a routine federal criminal charge. It is reserved for serious cases. And the spectrum, I would say, is broad. But you can go from the Rosenbergs who were charged under espionage act violation, found guilty and ultimately sentenced to death. Will you remind people just a little bit about the Rosenbergs? The Rosenbergs is old. It's actually a New York case where a couple was found spying. And I think it was in the 50s. Is that right? I'm going back a ways there,

and they were prosecuted for providing, really, information to a foreign power that was determined to be of a critical nature. And so, again, it didn't get to the treason level, but it was espionage, kind of what everyone thinks of typical espionage use of the statute. On the other side of it is, you know, a list of cases. Typically, cases are reserved for when government agents or former government agents or government contractors, which in reality when it was, which is one of the cases from 2017, 2018. But government contractors or government agents who disclose classified information typically to a foreign power, to some agent of a foreign power. And, you know, there's a, there are a line of cases in which that is, that has been charged over the years. But typically it is, it is for one information, like for example, a government agent is compromised.

A U.S. government agent is compromised by an agent of a foreign intelligence service and they provide classified documents to that. That is one. Sometimes, you know, it gets tricky. I was involved in the Jonathan Pollard investigation, which was a pretty it was high profile. It was very difficult because he was convicted of providing information to the Israelis. It was sensitive information, typically, you know, thought to be an ally of the United States for sure. But it just shows how important these are that it's not just kind of the Russians or others that we're concerned about. It's a protection of information, of the national defense information.

Sorry, will you walk through the reality winner facts a little? Because it feels like we're very used to, yeah, if you steal U.S. secrets and give them to a foreign government, ally or not, we're coming for you. The Rosenbergs are, I just double-checked your dates, they're convicted in 51, they're put to death in 53, they're giving info to the Soviet Union. That's like an obvious, yep, no, no. But that's not what anyone thinks, at least at this point, that Trump has done, that he was somehow stealing national security info and giving it to someone. And this is where the Reality Winner case becomes more interesting to me, because similarly, she was not accused of working with a foreign power. Right. And I was going to get to that point foreign power, but, for example, a media organization.

And there has been some writings that there's been an uptick in that. I'm not so sure I ascribe to that general position. But the fact is the cases are brought when the folks that are investigating can actually identify a person who is the one who took without being authorized the information and then, you know, sent it out. And typically, some of the stats I've seen is that there are over a million U.S. government contractors or employees, over a million that have top secret clearance at this point. So oftentimes finding a pool of individuals who may have been the ones that leaked information on the authorized fashion is what prevents an actual successful investigation. In the reality

winner case, that was not the case. She was a former Air Force linguist who, when she left service, was hired as an NSA contractor and was working at an NSA facility in Georgia. And in 2017, it came out in an online publication called The Intercept. appeared in one of their publication was of a classified report, top secret report that described the U.S. intelligence community's analysis of Russian hacking and interference in the 2016 election. And while now looking at that, it seems like everyone knows about that. And that's a common knowledge fact. When it happened in 2017, although there was a lot of speculation about it, obviously none of it had been confirmed at that point. And what was important about that, that there were a number of things things the national defense information in that uh report

uh but what was important was that um as i recall i think it's been published um the report actually indicated that the gru uh which is one of the russian intelligence services were actually was actually behind the hacking so it wasn't some you know r know, Russian non-government hacking organization was something that actually was directed by a Russian intel agency. after reality winner is arrested on a 793 charge, unauthorized possession and dissemination of classified information. And if you look at the affidavit and the information that came out, she ultimately pleaded guilty to the charge in 2018, I believe. But if you look at the affidavit, it was one of the more direct identifications of someone who held clearances, unauthorized receipt of a classified document, printed it out on a printer, which they were able to quickly identify where it was. She sent the document to the intercept by anonymously in the mail. The intercept just like I think they just tried to confirm with the NSA that it was an authentic document.

And in that confirmation, it was kind of clear. They narrowed it down to one of six people. And then they found out the timing and off the printer and everything. So it was an easy identification, and the evidence was overwhelming that she had done this. And so, again, at the time, so one thing is she holds this clearance, right? She's an NSA contractor working in one of their surveillance facilities in Georgia. And she goes into, as I understand it, into a database that she wasn't authorized to go into, downloads this report, prints it out, puts it in the mail,

sends it to the intercept. And then there's a whole host of, you know, social media rants and such things that she had had. But anyway, she's prosecuted under the Espionage Act for this unauthorized possession and dissemination of classified material. I believe it was at a top secret level. So the national defense information contained in there is determined by the holder of the equity and the classified information here in the NSA that it would cause grave harm to the national security of the United States if it was disseminated without the proper authority. So one lesson here is definitely do not send classified information to media outlets.

Another lesson is, and definitely do not send classified information to media outlets. Another lesson is, and definitely do not do it to The Intercept because they will burn you. A lot of media organizations learned quite a bit from that and how to do better source protection when your source doesn't protect themselves. Right. For better or worse. This ad for Fizz is only 25 seconds long, but we had to pay for 30. Those leftover five seconds shouldn't just disappear, right? It's kind of like what happens to your unused mobile data at the end of each month. Except at Fizz, your unused data from the end of the month rolls over so you can use it the next month. Hey, you paid for it, so keep it. Try the other side. Get started at fizz.ca.

If you need some time to think keep it. Try the other side. Get started at fizz.ca. If you need some time to think it over, here's five seconds. Certain conditions apply. Details at fizz.ca. So I've got a question, and this is something, maybe this is, I think that this is something that's really important for people to understand. And then a lot of people who've had security clearances, it just becomes a part of who you are that you begin to understand the differences in dealing with unclassified and classified information.

and classified information. But a lot of people, I think, just don't realize what kind of precautions are taken to deal with classified information. And so if you've got a top-secret security clearance, even a secret security clearance, and you're exposed to classified information during your job. And when I had a security clearance, and when I was in Iraq, one of the things we had was thumb drives. And you had a classified thumb drive and you would have an unclassified thumb drive. And one thing you absolutely could not do is take the classified thumb drive home with you, even if you promised to put it in like a safe or locked drawer. What kind of precautions, if you are an employee of the Department of Defense, Department of Justice, Department of State, wherever it is, and you're a civilian employee, what kind of precautions are taken to safeguard classified information? How are you supposed to

treat classified information? Sure. So there are varying levels of the matter in which classified information is treated. The most sensitive, top secret SCI, which is sensitive compartmentalized information, that's even above the kind of top secret because there are specific compartments that people are read into and only those people, which is definitely less than a million people, I said before, have SCI clearance and it's for particular programs. The basis of all clearances is a need to know, right? First of all, you have to have the background checks and everything, but then you have to have a need to know in your job function for the U.S. government, the particular piece of information that's contained in the classified information.

So TSSEI material, which is the highest, that's maintained in what's, sorry for the acronym, it's called the SCIF, it's the Sensitive Complementalized Information Facility. And, you know, the offices that routinely handle classified information at that level have these facilities, which literally have to be certified by, you know, intelligence community folks because the vast majority of TSSEI information comes out of the intelligence community and it's shared on a very strict basis, on a need-to-know basis, with various functions of the government, typically executive branch, but also Congress and also sometimes the judiciary. And so it's handled very carefully by folks who have the training to handle it. And frankly, when you get a clearance at that level, it's something that's in your mind all the time. And you just want to make sure, you know, that you don't quote-unquote scrooge and leave something

where it's not supposed to be. And so that's kind of where it is. And then there are, as I said, lower gradations of that. It might not be a SCIF. There are some of the agencies that you talked about, there are whole floors or whole buildings that are literally certified as SCIFs so that the documents can be maintained. And within the SCIF, of course, they're maintained in safes. And these are talking like hard copy documents. The other situation is, you know, obviously because everything, data is all electronic these days, you know, there are also different levels of certification of computer and electronic data transmissions. And so, you know, it is also typically maintained in a SCIF. You will have a, you know, a classified computer system, depending on what level.

classified computer system, depending on what level. And then, you know, you're not allowed to remove, print out, take documents that should be in the SCIF outside of that. Secret and sometimes top secret can be maintained at a lower level, not in the SCIF, but in, again, not in a SCIF, but in, again, kind of a certified classified information container, typically some type of safe that has limited access and only people who have the clearance at the level, you know, of which the materials contained can gain access to it. All right. I've got a couple of procedural questions for you. You represent clients now. All right. I've got a couple of procedural questions for you. You represent clients now. The Department of Justice sends your client a subpoena for document X and your client says, no, thank you. I do not want to turn that over. What are your options? What are the department's options short of a search warrant? First of all, even prior to subpoena, you would try to gain the information that you're seeking by way short of compulsion.

A subpoena is issued when efforts to get documents, get testimony, cannot be arranged by way of a negotiation or what have you. And so you basically are saying when you go get a grand jury subpoena that you are going to, you as the prosecutor, along with your agent, but you as the prosecutor are going to use the power to compel an individual to produce information or testimony to the grand jury because you believe that that would be helpful to the grand jury's investigation. That's something you have to go to the grand jury to get. You know, the USA's, this is the United States Attorney's and various U.S. Attorney's Office and the attorneys at the Department of Justice act on behalf of the grand jury, they can issue the subpoenas on behalf of the grand jury. So if you issue the subpoena and the person who receives the subpoena does not comply, you have a few options. One, again, negotiate. But really, the main thing is to go try to enforce the subpoena, which means giving them, the recipient, a date in court where they are ordered to appear

in court so that, you know, the government attorney can articulate why the information that they have, they believe it's possessed by the recipient of the subpoena, is important to the grand jury investigation. And the defense lawyer can make their arguments. Typically, frankly, in my experience, it doesn't come to that. And if it does come to that, just the fact that you're going to haul them before the judge is the step that then, you know, shockingly, boxes start showing up. Right. But the other thing that, you know, has been done, I know, and I have experience with, is issuance of what's called a forthwith subpoenas give the recipient a, what's called a return date, right, a date that's on a subpoena by which either documents need to be produced or the individual has to testify. A fourth-width subpoena, which needs to be approved by the U.S. attorney or a head of the division, typically the

criminal division in the Department of Justice. Fourth, it says, give me the stuff now. This is not a, you know, I'm going to give you time to figure out this is, you have to give it to me now. And those are issued in very rare circumstances. But, you know, I have I did it in a case in the Southern District where, you know, I knew that there were, you know, classified documents in the possession of an individual. They were not at the time. They were they were somewhat dated. I'm going to get into further. There were some dated documents but they still were classified i knew the individual had them um and uh she was just unwilling uh to part with them uh because um they were like her dad's documents or something it was there was some you know family ancestry uh with the documents um but nonetheless there was still classified documents that were not being maintained properly so i issued a fourth with subpoena um and the response was she really doesn't want to. I'm like, OK, we're going before the district court judge this afternoon because, you know, they're there.

And and this is what we need to do. And so we did. And the district, we went, we argued. And the district, we went, we argued. The judge heard both sides. And she said, OK, Mr. So-and-so, those documents need to be delivered to Mr. O'Callaghan now. And that's what happened. So we got the documents by issuance of a fourth-wood subpoena. But one objective of doing that would be, OK, he's going to haul me into court. I don't want to go to court. I'll give him the documents. Right. They didn't do that. We had to go to court. I got the documents by going before a judge.

But you have to go before a judge. Right. That's the thing. Because the grand jury doesn't technically report the U.S. Attorney's Office or the Department of Justice actually report to the court in the jurisdiction in which they sit. So the court ordered them to do that. And so to get enforcement of a subpoena, even a fourth with one, you'd have to be, as the government attorney, prepared to go to court to argue for that. So you go to court, and if they then ignore it, the court would hold them in contempt. So, Annette, you could go to jail for being held in contempt of court, of course. I guess I'm wondering. Most extreme.

Yeah, I'm just running this out to like, if you just keep saying no, how then do you hypothesize getting from a subpoena to a search warrant? Why would you skip the forthwith? Why would you skip going the contempt of court route? So, and then obviously the last thing I was going to say is you can do a search warrant, right? And go before a judge and say, these are all the reasons why we need to go there. The difference, frankly, between a subpoena and the search warrant is that the subpoena, they're both still in the investigative stage. Right. But a subpoena, you don't really you don't need to articulate probable cause to believe that there is evidence of a crime. It is evidence that would be helpful for the ongoing grand jury investigation. right? And either forthwith or otherwise.

Now, you know, some would say that, well, if you're issuing a grand jury subpoena, even a forthwith one, for the sole purpose of retrieving documents, you're not really using it, right, to investigate a crime. I mean, it's one step in an investigation, and then you can decide how far you want to go with the evidence. You're you're saying I have a reasonable belief that there's evidence there. But but I don't know how it matches up with other evidence. I have all that fair use of it on a search warrant. You're saying I have probable cause to believe that there's evidence of a crime in the premises. that there's evidence of a crime in the premises. So I think it actually elevates it a notch to say kind of a further along judge in my representations to you that because,

because, frankly, probable cause, while it's kind of the lowest level criminal burden, it's still all that really needs to be shown to get an indictment before the grand jury. really needs to be shown to get an indictment before the grand jury. So by saying I need to get the search warrant, I'm investigating further that a crime has been committed on a probable cause basis, and I need that. What has happened between why you would go search warrant and not forthwith subpoena? why you would go search warrant and not forthwith subpoena. I'm, again, not entirely sure, but one thing that comes to mind is you don't want it to play out in court. You don't want the disagreement on it to go to court, either because you would just anticipate that that would generate kind of more, quote unquote, notoriety than what you're hoping for.

You frankly don't know how the other side will respond to a court date. There's also this problem with the lawyer for Trump signing a letter saying there was no more classified material at Mar-a-Lago to the Department of Justice. And I wonder if because the subpoena, they kind of get to pick what they're turning over, that at some point you're like, I don't mean pick like they get to decline, but rather if you don't know every piece of paper that's already there, and they're saying there's no pieces of paper there, and you know that there are, at some point you're like, the subpoena is pointless. They're going to turn over five pieces of paper at most when I saying there's no pieces of paper there. And you know that there are. At some point, you're like, the subpoena is pointless. They're going to turn over five pieces of paper at most when I know there's 50.

And then we're just going to keep doing this every couple months together. I give you a subpoena. You find another piece of paper. And we're running up against the possibility that this guy's about to announce for president. Yeah, that's fair. I don't know. I mean, this is what I think. I don't know. I mean, if there is I would this is what I think. Right. It has come out over the last week that there were discussions, you know, with with NSD and representations.

I don't know anything about it. Representatives of Trump. And and that, you know, something something broke down in those discussions where I mean, to your point, Sarah, the DOJ just got to the point where they didn't think it would be productive or fruitful. And they still obviously had sufficient information to convince a judge that there was probable cause for the belief, there was still evidence of crimes in that premises. So, you know, again, we haven't seen the affidavit, so we don't know what the articulation of that probable cause was. But, you know, one could imagine, Sarah, that there's actually some type of discussion like that in the affidavit because, you know, a search warrant, you do have to show that you have, you know, pursued all of avenues to gain the information that you have reached the determination that kind of the intrusive resort to the search warrant is merited. Yeah, it feels to me like there is a substantial difference between give us your documents, answer no, and give us your documents, here you go, and you lie.

You say, here's all the documents, and then you later learn, no, in fact, that's not all the documents. So one of the questions that I had was when you're talking about, and this is a process point that Sarah and I have talked about, but when you're thinking about getting a search warrant here in this circumstance, getting a search warrant here in this circumstance. What actually is the process? You're an FBI agent and you're investigating the misplacing or retention of classified information that a person as prominent as Donald Trump shouldn't have. What's the step? And you think, I need to get this. How many hoops do you jump through before you're getting to the point of a search warrant executed against a former

president of the United States? Yeah, certainly many hoops. And I mean, again, the public available open source information, it sounds as if there was like a meeting in June where this topic was discussed. The documents and the search warrant isn't executed until August. So I would say, you know, two months worth of hoops, at least. say, you know, two months worth of hoops at least. But, I mean, to walk through the process, it is, you know, this, again, based on what I've seen, is something that is being driven out of the National Security Division, obviously, which makes sense. The National Security Division, which within DOJ ultimately has charging authority for 793 violations for sure. Working with the U.S. Attorney, the U.S. Attorney's Office, that's appropriate, but this needs to be run through the National Security Division. And so there would be division. And so there would be some discussion among the leadership with the National Security Division and whatever U.S. Attorney's Office is investigating this, likely the D.C. U.S.

Attorney's Office, to say, look, we've tried every way we can., we're just not, we still have, probably, possibly there are more documents in this premise. So this would go to the Assistant Attorney General for the National Security Division, who would have to approve it, and then to the Deputy Attorney General's office, the office where I was, quote, unquote, paid ag. Quote, unquote, what? Wait, this is news to me. If you weren't paid ag, we have a problem here. I was only paid ag when I set out.

No. It goes to the Deputy Attorney General's office because they have, again, kind of supervisory authority over criminal related decisions within the department. And then, you know, something of this magnitude would go to the attorney general. As H.G. Garland said, he specifically approved it. He specifically approved it. Now, on the FBI side, you know, while it wouldn't kind of require the concurrence of the FBI director, because the FBI director does report to the attorney general, I suspect that there was. To the deputy attorney general. There was that concurrence to the deputy Attorney General and then the Attorney General. I would expect that there was concurrence, that this was the necessary investigative step to take.

So FBI and DOJ aligned to go to the court in Florida to present the affidavit. to present the affidavit. And the affidavit, so it's, they work with the attorneys at DOJ, but the affiant, the person who actually swears to the facts that are articulated in the affidavit to show probable cause, that will be an FBI agent who has been working on the case. And ultimately, they're the ones that sign off on the facts as articulated in the affidavit in support of the search warrant. I think it's weird that all the hate has been directed toward the FBI, these catchphrases of defund the FBI and stuff, when in fact, this was driven by prosecutors at DOJ. The FBI agents are signing these affidavits. They're part of the investigation, but this idea that somehow this is FBI driven, it's very bizarre to me that somehow if we just defund the FBI, then it'll be

fine. Then there's no more search for us. That's not even who went to the judge. But okay, Ed. Well, you, so, I mean, you would go to the judge with your agents link in case they had some questions. Yes, but the agents aren't going alone. It's, yeah, I agree. It's DOJ and FBI, for sure. Last question. If a lawyer signed a letter to you that said that there were no more classified documents on the premises, can you play out two scenarios for me? A, you have some evidence that the lawyer knows that what they just signed was not truthful. What happens to that lawyer? And B, that the lawyer was believing their client and perhaps didn't do a lot of due diligence, but does not personally know what they are signing to be false. What happens to the lawyer in that scenario? personally know what they are signing to be false, what happens to the lawyer in that scenario? Yeah. So that's a difficult, the second one's easier, right? The second one is, you know, there is a ethical duties on lawyers to make sure before they make representations on behalf of their clients that they have done due diligence so that the representations that they make can be supported with a good faith, but kind of even a little bit more than good faith, that they've done a diligent

inquiry on that. And so if you don't do that and you have proof that the lawyer didn't do that and just took his client's word for it. There are definitely ethical violations that can be brought against a lawyer in their bar where they're registered. Obviously, it means that that lawyer can't represent anything to this particular DOJ team ever again because that's just professional courtesy and professionalism. And if they're not representing properly, then you just won't deal with them anymore. The first scenario was when the lawyer knew that there were more documents, you know, that obviously is more troubling and harder to prove, and harder to prove, but clearly, obviously, all the ethical violations and what you can do or that's, that's one thing. And then the question becomes, you know, whether, you know, there,

And the question becomes, you know, whether there's some type of potential conspiracy that the lawyer can be considered to have participated in. If you're saying either conspiracy or, you know, an accomplice type of scenario. If you're saying that the lawyer knew that there were documents there, knew that the government was saying, you need to give us those documents, and you can show that there was an agreement between the lawyer and his client that the lawyer would make these false representations to the government, you know, there's an argument there that that lawyer could become a target of the investigation as well. Very difficult to prove. You know, the lawyer would clearly say, I'm just going based on what my client told me.

But, you know, in your hypothetical, there was some evidence that you had the lawyer knowledge about that, which makes it a little bit more difficult. Now, real last question. Okay, one more. We've taken up several billable increments, David. I know, I know, I know. This last one should be pretty short.

Okay, so what about a possibility that I have seen expressed, which is stop talking about some sort of ultimate criminal prosecution of Trump. Really what's happening is they knew he had documents. They just wanted to go get their documents. And that's that. In other words, the real issue here is rather than trying to explore whether or

not we're going to actually prosecute a former president for all of this, we just know he had documents, we want to go get them, and make sure he doesn't have any more, end of matter. So let me, I'm just going to approach this as a very, very lying prosecutor viewpoint, and not anything on the politics of it, because there are certainly policy issues about why you would never want to bring a case of that nature. Right. And I just just to leave that to the side from from from the answer is it's it's I would think I would suspect that the answer is that it's it's it's too it's too soon to tell that because whatever documents that they did get, they just got them last week. And, you know, it doesn't seem like it's a massive cache of documents.

But, you know, you do you do need to basically go through it and see as both an agent and a prosecutor, you know, where things lie. You know, what what is the evidence there that we can put together to see whether anyone that not not any particular individual, but anyone involved in this may may be subject to possible criminal violation charges, right? And again, here, what you're doing as a line prosecutor is applying what's called the principles of federal prosecution, which are in the justice manual, which guides all prosecution considerations, which is I get all of my evidence before I go to seek a charge. And there's all of the evidence in total convinced me and convinced all these other supervisors who will be looking at it, convinced us that there is evidence now beyond a reasonable doubt that I have

been able to assemble in the course of my investigation, which may include the take from this search warrant, do I have evidence beyond a reasonable doubt that I'm going to convince 12 jurors that a crime was committed by this individual, and that this evidence was part of that. That's a process that takes a while, and there are a lot of layers of approval to something like that. But, you know, if I'm looking at it from a line prosecutor's perspective, you know, that's what I would expect the analysis that's transpiring right now is, that's what I expect is transpiring now. One last note on the warrant seeking. Would you look up who the duty judge was before you went to get a warrant?

And by duty judge, let me just define that. So magistrate judges, you know, have to sign warrants all the time and at all times of day and night potentially. And so the judge that you get, you don't get to pick that judge. There is a duty judge who's on at that time. But of course, you can pick what time you go get the warrant. Not always. I mean, that's the answer, right? So it depends on, frankly, the hand you're dealt and the timing and circumstances of it.

Just practically speaking, there's not judge shopping. But, you know, there are circumstances where a prosecutor can say, you know, and it's not really that far ahead. It might be a day or two, you know, a judge is on duty and and there might be opportunity to go before a judge who either, you know, you know, they think you think they have the right experience because they've handled a number of cases. because they've handled a number of cases. Or frankly, you just kind of know that they have a law enforcement background and will get it kind of more so than maybe other judges will. But mostly it's based on the judge's experience if you're going to do that. I mean, I don't know how much urgency there was in the one that you're talking about here.

Typically, if there's like, I have problem causally in this classified information in this premises and I can't get it otherwise, it's pretty urgent. So you're just going to go into the judge when you get the approval to do it from the supervisors and go to the judge to make sure you can get that as quickly as possible. All right. That is an awesome place to end with such insider knowledge from former pay dag, Ed O'Callaghan,

now senior partner at WilmerHale. If you are doing crimes or thinking of doing crimes or have been accused of doing crimes, I highly recommend Ed as your counsel. Okay. If you have sent secret documents

to The Intercept, call Ed. Yes. And also, y'all can't see the beard, but as you may remember when the end of the Mueller investigation was announced, Ed was standing there on the podium, and late-night hosts across the spectrum referred to him in various versions of Beardy McBeardface.

It's a fantastic beard. It's worth a Google image search. Ed O'Callaghan beard. It's the best beard I've ever seen. Wow. Thank you. Thank you. I have to step up my game even more now. David, your beard is nice too because I can see David's beard. It's very refined. We don't have to highlight that Sarah sees mine every week and went out of her way to say best she's ever seen. So we don't have to highlight this. I mean, you don't know Ed's beard routine the way that I do. I've asked about this.

I know about the oils and the manicuring that goes into maintaining a beard that looks like that, David. It is a great beard. It's a fantastic beard. Sarah, unauthorized disclosure of classified information right there. Fantastic. Sarah, Sarah, unauthorized disclosure of classified information. It also is worth noting that Katie Barlow, who's been a guest on this podcast, is your wife. So perhaps privilege was broken and your wife told me some of those details. OK, well, that's OK.

Well, thanks so much, Ed. We really appreciate it. Thanks very much for having me. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today. Even better, with unlimited storage and an easy-to-use app, you can keep updating mom's frame with new photos. So it's the gift that keeps on giving. And to be clear, every mom in my life has this frame. Every mom I've ever heard of has this frame. This is my go to gift. My parents love it. I upload photos all the time. I'm just like bored watching TV at the end of the night. I'll hop on the app and put up the photos from the day.

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So Sarah, that was awesome. Thanks for bringing Ed. I'm telling you, we have some of the best guests on this podcast. Knowledgeable, knowledgeable people. What are some of your exit thoughts from that interview? I mean, it's just worth noting that at the Department of Justice, the person who has overseen this entire process with the retrieval of these classified documents is the person who currently holds Ed's job.

So there's almost literally no one who knows more except for that one person currently in the job about what goes into that job, what that person does, then Ed. And just to reiterate, Ed was my day-to-day personal savior and friend. So it was really fun to have him on the podcast finally. Ed has babysat Nate. He makes the best Aperol Spritz. So that's just fun. On the substance, I think a lot of that was just worthwhile to walk through how some of the more,

they're not even conspiracy theories, actually. I don't want to call them that. It's very smart people saying like, aha, what about this idea of how this could have happened? Like, oh, it doesn't quite work that way. Actually, it's this large bureaucratic process, and here's what needs to happen. Again, I come back to the three questions that we don't know the answers to. One, what actual documents were seized and how important were they? We're frankly not going to know the answer to that, but I'm going to keep

raising it because it is relevant. It's not legally relevant, but it is relevant to the prudential question. Two, who had access to those documents when they were at Mar-a-Lago? This is the biggest question to me. It's not even a close call. It's why they see surveillance footage, no doubt. The idea behind this being this whole argument about whether Trump declassified documents, why he wanted the documents, all of that, to me might be entirely beside the point. I can easily envision a scenario where former Trump aides, when he was president, and now current Trump, whatever you want to call them, people who are close to him, wanted those documents for their own reasons, have been accessing those documents. And so it's not really about a former president. It's about, you know, Kash Patel has

been a name mentioned. He at one point was working at the White House, then the Department of Defense. And he's someone very close to Donald Trump right now. If Kash Patel is going in and out of that room on the surveillance footage footage looking at those documents, that's going to be a very different thing to DOJ than the former president. And number three, and something we got into with Ed obviously, is what happened in between the June meeting,

the subpoena, the lawyer signs a letter that we don't have any more documents, and the search warrant being executed? I think that the Occam's razor explanation is that they felt like they had, that the lawyer didn't know, maybe Trump didn't even know what they had, so the subpoena was just pointless at some point.

They wouldn't know where to go get these documents to begin with, right? Remember, they searched Melania's closet at some point. So it's not like it's all in one place or it's a stapled piece of packet that they're just going to pick up. Or that for some reason, they had information

that some of what they wanted was about to be destroyed or something else. Or that they believed because of the media reports that because Donald Trump was about to announce for president, they would not be able to take any public investigative steps once he was a candidate for office.

That's not a legal thing. That's a prudential DOJ policy about not taking public investigative steps in the run up to a campaign. Normally, that means after Labor Day for a congressional campaign or something like that. But when you're dealing with a presidential campaign, DOJ has kind of learned that it's just very messy. So I think we will find over time that it was one of those three things. A, they didn't know where it was or what it was. They couldn't really, the subpoena process just wasn't going to work if your client doesn't know what you're really asking for. Two, they thought something was going to be destroyed. Or three, that they felt like they were running up against an unknown deadline when Donald Trump could announce for president. Yeah, one thing that's interesting to me, because if we go all the way back to our first discussion

of this early last week in the emergency pod, you mentioned, why not a subpoena? Why not a subpoena? And then after you mentioned the subpoena, we found out there was a subpoena. not a subpoena and then after you mentioned the subpoena we found out there was a subpoena and i think the really interesting question to me is uh if they lost confidence that a subpoena would produce truthful disclosure that changes the equation that's what i was trying to get out with some of the questions with ed now let me let me say to be clear at the point they issue the subpoena and then the lawyer says, we don't have anything more. At some point you, you have exhausted the subpoena route, right? Like they're telling you they don't have anything more. Either they truly believe that, in which case the subpoena route's stupid, or they don't truly believe it, in which case the

subpoena route's pointless too. Yeah, exactly. Exactly. To me, that really was an interesting additional factor in the calculus that said this was not the FBI running in on any pretext into Mar-a-Lago. They had been through a process that included a subpoena, and the subpoena response was not complete. At some point, you're thinking, well, what can they do at this point? All right, so I have a question for you, Sarah. In response to some comments, I wrote about, for my Sunday newsletter, I did something a little different. Didn't deal with sort of religious, cultural, moral-type issues. I dealt with this. And there were two responses because I was talking about comparing the Hillary Clinton situation to the Donald Trump situation. And I was saying whatever standard that was applied to Hillary should be applied to Trump.

And I had two major response to this. One from Democrats saying, how dare you compare Hillary Clinton to Donald Trump? And then the other one from Republicans saying, how dare you compare Hillary Clinton to Donald Trump? With very different emphases on the how dare you. Can I tell you that when I tweeted out your news article with my own, like these are,

they're not perfectly the same thing. I'm not saying that they are, but Democrats should have taken the Hillary mishandling of classified information more seriously. And Republicans shouldn't pretend that this is such a difference in kind. And all the differences they're trying to point out

aren't nearly as black and white as they say. There were so many comments where I couldn't tell which side the person was on as they were telling me how wrong I was. They're like, how can you think these are the same? Obviously, a former president is different. Wait, is a former president different because you're saying it's worse or better? I can't tell. I can't tell. I can't tell.

So here is a question that I want to get your thought on. Because the point that I made was, look, I'm not saying they're a one-to-one comparison, but I'm saying that what happened is, as a result of Hillary's conduct, James Comey announced a standard. He announced factors to consider when determining whether to recommend prosecution. And I said, if those were the factors to consider for Hillary, they should be the factors to consider for Trump. Now, those factors may be more, you know, the facts may be more egregious with Trump or maybe not. We don't, there's a lot we don't know. And a lot of people said to me this, Sarah, and I want your assessment. Well, if your position is that the FBI should have recommended prosecution for Hillary,

then you have to recommend, you have to believe that the FBI should recommend prosecution for Trump because two wrongs don't make a right. You don't take the wrong standard for Hillary and apply it again for Donald Trump. And there's, you know, a lot to be said for that point of view. But I'm very curious as to what you think about that. But I still, if you're going to articulate a legal standard that applied to the Democratic nominee, and then you're going to say, whoops, our bad. We're not going to apply that anymore. The Republican nominee gets an indictment. I don't know. I see problems. But I'm very curious about your position. So a few things. One, I don't know that I see problems. But I'm very curious about your position. So a few things.

One, I don't know that I buy into the we screwed up that time, so we have to continue the screw up for the other side at least one time before we can fix the problem. And let me give you an example, and it's the Bill Clinton Me Too example. This idea that like, well, we gave Bill Clinton a pass on a bunch of Me Too stuff and rape allegations that were credible,

so we're going to have to give at least one Clinton a pass on a bunch of Me Too stuff and rape allegations that were credible. Right. So we're going to have to give at least one Republican a pass on Me Too allegations and credible rape allegations or something. No, I think we should just say we were wrong about Bill Clinton and fix the problem. Right. And this comes up in the DOJ context plenty. You know, Jim Comey gave a press conference about Hillary Clinton that sort of morally indicted her and then legally acquitted her. Should we do that for Republicans too? No, that was a really bad thing to do. And surely we've learned from that. So let's never do it again. It's not that each team gets one of these, whether you think it was a good thing or a

bad thing that Comey did it for Hillary Clinton or Donald Trump or whatever else. Like, nope, we're just not going to do it again because it turned out to be really bad. So if we all agree that not indicting Hillary Clinton was a bad idea, and I'm not saying we do all agree on that, I don't know that it necessarily follows that we have to follow the same thing for Donald Trump

from that prudential standpoint. I will say that there is a legal argument that Jim Comey articulated a new legal standard under 793 that is legally relevant. So there's that. I also think it's worth discussing why, if you feel strongly that one or the other of these is better or worse, that perhaps you have trouble seeing why someone might have the exact opposite opinion of you. So I wanted to run through some of the ways in which you could argue the Hillary episode was worse and some ways in which you could argue the Trump episode was worse. Yeah, that's super helpful.

And these are just my own opinions of how you could argue that. One, because Hillary Clinton was conducting these classified conversations on her server, a private server, it was actually far more hackable by foreign governments. So the risk to our national security was simply higher than putting documents behind even a crappy bike lock in Mar-a-Lago. Once that was attached to the internet, I mean, as we saw, the Russians hacked the DNC server. She opened up all of those conversations to be read by really any foreign government ally or not. And I think you could argue that that had the potential for more damage, too, that the reason that she opened it up, you know, on her private server was doing all of this was so venal. I don't know what the right word is.

Like she was doing it for her own personal political benefits so that Republicans couldn't FOIA her emails and make hay out of innocuous stuff. And so why not just move them all into a private server? Or she just thought it would be more convenient. Either way, not a great reason to open up those conversations to potential foreign governments to read. And then, of course, there's the wiping the server aspect to it, which people have made a big deal out of, where it looks like there is some willful desire to get rid of evidence about what she actually did. Now, people can argue that's not why she wiped the server. That was sort of standard after she left state. Of course, she'd wipe the server just in case. You don't know what's on there. Just get rid of it for the very reason that private servers aren't always that secure. And she was going to have

less security on that server moving forward. But another version is she wiped the server because they were looking into it. And again, DOJ, for what it's worth, did recover, if not all of those emails, the vast majority of them is my understanding. So it was all kind of pointless anyway. So that's why the Hillary thing might be worse, at least some of the reasons. On the Donald Trump version, I think saying that the former president did it makes it worse and better. On the one hand, you can say he was president. We elected him. He has a lot more freedom in what he can do than Hillary Clinton as secretary of state.

Okay. On the other hand, he's the former president. He should know even better. He should be so protective of our national security secrets, and we should hold them to a higher standard than the Secretary of State. So that one cuts both ways for me. The sheer mass of what appears to have been at Mar-a-Lago, and that it's not all in one place, that it's kind of all over in different rooms, et cetera, not great. It appears that, again, these are specific documents that are marked with high classification levels. Nothing in Hillary's conversations was actually marked top secret.

It was that the content of the conversations was a top secret conversation, which is different. As in, Hillary Clinton should have known she was discussing something she knew to be top secret information. But literally on the page in Donald Trump's basement, it says, knew to be top secret information. But literally on the page in Donald Trump's basement, it says, you know, top secret. Also, and of course, this is the big, the money shot, if you will, David, DOJ asked for the documents back. Yeah. And he said, some version of no. Either I don't have them, no, go pound sand, whatever. So depending on which side you're on, I just thought it was worth explaining

how the other side may view this, which kind of washes out for me, David, frankly. Yep, they're pretty different situations in some respects. Both of them, though, had classification and declassification authority to some extent. Both of them knew better. And I mean, these are the people we trust. It's so frustrating. Yeah. So number one on the two wrongs make a right, don't make a right. I'm with you 100%.

So my view was not, as I have articulated 10,000 times, well, the Democrats gave Bill Clinton a pass for sexual assault and sexual harassment. Therefore, we get a freebie in Donald Trump. No, my argument has been forever. Wait a minute. We were outraged at Bill Clinton. We should be outraged at Donald Trump. That's a political decision, political slash moral decision about what do you do when somebody manifests behavior on, quote unquote, your side that you have condemned vociferously on the other side. factors that were raised here and that Comey purported to go through all of the DOJ Espionage Act prosecutions and said, historically, this is when we prosecute. And so since it doesn't rise to the level of when we have historically prosecuted, then we're not going to recommend prosecution. To me, while I disagreed with the legal analysis, he was articulating what he described as an existing standard at the DOJ. So it was literally not exactly two wrongs make a right in the sense that,

in the way we talk about it with comparing, say, Bill Clinton's sexual harassment and Donald Trump's sexual harassment, it was we have a DOJ standard that we're going to apply to Hillary. And that standard, even if it doesn't exactly match the statute, is still the way we have determined we're going to prosecute crimes. well if that's the standard move it over and apply it to donald trump and if that doj practice is contrary to the will of congress you know congress should act on that it sort of is my fundamental argument now when it comes to hillary it is simply remarkable to me even now years later well maybe it's not remarkable the extent to which a lot of Democrats don't want to look squarely and clearly at what she did. This sort of, but her emails kind of throwaway line, it's just insulting our intelligence at this point. There wasn't any justification for what she did. And it is not the case.

Everyone said, well, she completely cooperated. Well, if I'm handing those over servers that have already been wiped, yay. You know, like, or phones have been destroyed by hammers. It's not necessarily the case that you can sit there and there's a lot of trust that has to be applied. And the DOJ had to do a lot of backtracking to find all of the people who Hillary emailed to get their copy of the email. So this is not exactly, oh, our bad. Here you go. Here's everything. It was much more like, oh, well, here's everything except that which we deleted, which trust us, what we deleted was an official business. Would you buy that from Trump? Would you? No, doubt it. Would you buy it from anybody that you didn't like politically? You would not. So, I mean, think of it like, this is the thing that gets me, is there's just still this inability to sort of stare into the reality of that scandal. And to this day, people have big feels about it.

David, there was another thing that happened over the weekend where Donald Trump said that a lot of the documents they collected could be subject to attorney-client privilege and executive privilege. And I thought I would just mention some of how this will work at DOJ. So first of all, let's divide up attorney- client privilege. I think most people know, right? It's conversations with your attorney. And we've talked a lot about what is privilege and what isn't privileged in other conversations. But not everything you talk to your attorney about is privilege necessarily. But let's assume for the sake of argument, there are real privilege conversations there. Executive privilege is the concept that we want the president to be able to get advice and deliberative conversations from people without everything having to be turned over publicly or else people aren't going to offer their candid advice.

The privilege belongs to the executive, i.e. the president. It does not belong to the former president, as we've discussed, although, again, the purpose of executive privilege would certainly apply retroactively to conversations that the president had. But the most important thing here is that there is nothing that could be privileged under executive privilege that would not, therefore, belong under the Presidential Records Act. Because if it's work and it's privileged because it was deliberative work conversation, then it definitely is a Presidential Records Act, which means that it definitely shouldn't be in Mar-a-Lago. It's owned by us, the people, which is held in trust by the National Archives.

So he basically just said that he knew he had documents that shouldn't have been in Mar-a-Lago. Of course, as one person put it, I thought, quite succinctly, executive privilege by definition means that it's owned by the executive and you, sir, are not the executive anymore. And then on the attorney-client privilege documents, David, this is really normal. Anytime the Department of Justice executes a search warrant on BP or any major corporation, they're going to sweep up tons of documents that could fall under executive privilege. So what do they do? They have something called a filter team or a taint team, which some people thought was a funny name.

So I'll just definitely keep using- It is objectively a funny name. I'll keep using taint team. And basically, before the investigative team, those FBI agents and prosecutors who went and got the search warrant, for instance, actually get to review any of what's swept up in the search, a totally separate group of FBI agents, or potentially DOJ attorneys now, are going to look through those documents and filter out anything that's attorney-client privileged. And then once all of those documents have been removed, then they hand the remaining set of documents over to the investigative team, who then will not be tainted by the privileged documents.

Yeah, thanks. That's all extremely helpful. And one other thing to clarify, and I don't think we've got time to talk about the Roy Moore defamation verdict. We'll just save that. Roy Moore defamation verdict. We'll just save that. One other thing to clarify is a number of people said, okay, David, let's just grant for a moment that we should apply the same standard that the DOJ applied to Hillary, but didn't Trump change the law? Didn't Trump come in and make mishandling classified information a felony? So he himself said, hey, we didn't handle the Clinton thing right. We need to really ratchet up our scrutiny of classified information or mishandling of classified information and ramp up prosecution. Yeah, so that is 18 U.S. Code 1924. This is something that I talked about with Ed, unauthorized removal and retention of classified documents or material. And in 2018, the length of imprisonment was raised to five years. So yes, Trump did beef up the law.

He signed into law a bill that beefed up the penalties for mishandling classified information. Now, what's interesting, though, is that the actual warrant doesn't mention 18 U.S.C. 1924. It mentions 18 U.S.C. 793, along with an obstruction statute and a record retention statute. But Section 793, which was the key statute applicable to Hillary, which was the standard that Comey articulated, was the same statute that was on the search warrant for Trump, and that sucker hadn't been amended since 1996. So it's the exact same statute with the exact same wording. And so the 1924 analysis doesn't even come in yet.

We haven't seen that. And the other thing is, I mentioned in the piece that it could very well be the case that when it comes to actually possessing the classified information, that what you have is something that is really in a lot of ways quite similar to the Hillary situation. And if the DOJ legal standard applied in the Hillary situation, it should apply in the Trump situation under the same statute that has not been changed. But there's some obstruction elements that were added in this search warrant. So it could be one of those situations where it's not the crime, it's the cover-up. But again, all of that is speculation. But my basic thesis was pretty simple.

If there was an existing legal standard articulated under 793 that mitigated against prosecuting Hillary Clinton, and there has been no clear policy change by the DOJ, then that standard needs to be applied to Trump. And I'm not saying that he's exonerated under it. I'm just saying apply it. That's my basic point. I like that point. Thank you, Sarah.

So anything else? I think we've covered a lot today. You know, we do Nerd August because it's usually a slow legal month. Most people are on vacation, even lawyers. The Supreme Court obviously isn't in session, but leave it to Donald Trump, man. I remember the one time I tried to take a mini vacation at the Department of Justice.

It was in August. I tried to go floating down the river near Harper's Ferry. Punchline- Which that's a beautiful area, by the way. I'm sure it would be if I had actually seen it. Instead, I am in an inner tube. Graphic content ahead. I'm in an inner tube with my work cell phone and my personal cell phone, both in little Ziploc bags shoved into the top of my bathing suit in the places you can imagine to try to keep them dry. And then finding every rock that we float by, I would get out, take out the cell phones and have calls with the deputy attorney general or the attorney general.

And that, I then like paddled the rest of the way down the river and had to drive back very quickly. So that was like five hours of my Sunday that was actually very stressful and miserable. And I realized that just staying home would have been way better. And so I never went on vacation again. Yeah. No, I, there's a lot of people who their story is Trump came down the escalator and then I never went on vacation again. Yeah. Yeah. Attempted vacation fail.

Exactly. Oh my gosh. All right. Well, listeners, thank you for hanging with us for a slightly longer than normal advisory opinion. Worth it. But lots, worth it. Lots of good content, incredible guest. So we appreciate it. And if you appreciate us, please go rate us, please subscribe, and please check out thedispatch.com.