Is It Windbreaker Time, Yet?

Also, a tribute to "the lawyer we couldn't imagine."

By and

Following Sarah’s personal tribute to the incomparable Will Consovoy, Sarah and David wade through the news about Biden’s mishandling of classified documents and wonder about its implications on the Mar-a-Lago case. Then, David checks in the Georgia grand jury about Trump’s alleged election interference, and a Sarah reviews two SCOTUS arguments, one concerning attorney-client privilege and union strikes. Finally, Sarah and David joyfully examine the true value of noncompete clauses.

Show Notes:

In Memory: Will Consovoy

NYT: Biden Lawyers Find Classified Material At His Former Office

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Comments (73)
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  1. Sean Smith

    I cannot hear the word "windbreaker" without suppressing a chuckle given what it means to break wind. Is it just me? I'm nearly 50, but my sense of humor stopped developing around the age of 15. Sorry.

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    Hawks Law Office

    Sarah was still in her teens, but David may remember an article that came out during the Clinton impeachment by U. of Chicago Law Professor Joseph Isenbergh (an early advocate of originalism) called "Impeachment and Presidential Immunity from Judicial Process" (https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1146&context=public_law_and_legal_theory).

    The article caused quite a stir because it concluded both that (1) a President could be impeached for lesser offenses than "Treason, Bribery, or other High Crimes and Misdemeanors;" and (2) that if convicted of a lesser offense, the Senate could impose a penalty other than removal from office, such as censure or disqualification from future office, which I've always this was the best solution to Clinton's misconduct.

    I mention this because it is similar to a recent proposal by Jonathan Rauch to the difficulty of how to handle Trump's January 6th misconduct and subsequent mishandling of classified information, which is to prosecute him like anyone else but take prison off the table (https://www.persuasion.community/p/how-to-prosecute-a-former-president).

    In both cases, the goal would be to obtain a conviction but impose a lesser penalty that would be acceptable to most of the country (thereby making prosecution and conviction itself more palatable), although whereas the Constitution would take removal from office (according to Isenbergh) off the table, Biden would have to make a preemptive promise of commutation to do so in Trump's case. The same standard of course would have to apply to Biden's mishandling of classified information once he left office.

    One last related point re: the "official acts" conundrum: Assuming that Trump's January 6th misconduct is prosecutable under the federal or a state criminal code, I would adopt a bright line test that former Presidents can still be prosecuted for such conduct even if they were "official acts," as long as they were impeached by the House and convicted by the Senate of such acts, provided that Isenbergh's two standards are applied to make impeachment and conviction easier in the case of "lesser offenses."

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  3. Cfleury1217

    Sorry to change the subject, but I am eager to hear your legal perspective on this topic, in light of yet another impending debt ceiling circus. The debt ceiling law itself seems unconstitutional. It is, oddly, Congress impeding the ability of the executive branch to do what Congress has legislated it must do (i.e. disburse funds that have been appropriated under Congress's spending power).

    Rather than the Democrats scrambling to raise the debt ceiling in Congress, or the administration cooking the books to stretch it a bit, could/should the Treasury seek an injunction against enforcing it and ask SCOTUS to review the debt ceiling law?

    I am not saying that is necessarily good politics or a step toward fiscal responsibility, but it seems to me an obvious constitutional angle that I never hear talked about.

    Thanks -- eager to hear what you two think

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  4. Tom Johnson

    Although I wasn't acquainted with Will Consovoy, I'm sorry to hear of his passing. He sounds like a remarkable person.

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  5. Mr.Tylergaston

    This was the first podcast I’ve cried to while listening. Your friend sounds like the cream of the crop. I am touched and saddened by your wrenching loss.

    As far as indictments are concerned, I am hoping for them to come down on both parties. Granted, this is the longest of shots, but how interesting would that be? And blow 2024 to smithereens, as well as, showing the country and the world we take this seriously. Maybe Biden and Trump could be cellmates. #justiceforall

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  6. Lovell.Eugene

    Beautiful tribute to Mr. Consovoy. I really appreciate your mispronunciation problems here, as I have the same difficulty. (I have also been accused of making up words. Probably true.) On the matter of handling classified documents, this is nuts! It seems the appropriate action would be to prosecute Trump and impeach Biden. It is not going to happen, but…. When is this ever going to end? One misdeed leads to, and indeed encourages, more misdeeds.

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    Ben Connelly

    Sarah, so very sorry for your loss. I’ll pray for Will’s family and friends - including you.

    On a lighter note, David, you said that Hamline University should start spelling their name the way it’s pronounced. I have a funny story about that. My best friend’s legal name is Christopher. When we were in first grade (incidentally, the last and only year we were allowed to be in the same class), we had a substitute teacher who told him his name was Cristopher. He responded that he should think he knew how to spell his own name, but since we were six she assumed he didn’t. I can’t remember how he managed to produce proof that his parents spelled it the way he did, but I do remember it was in front of the entire class. Then again, maybe that isn’t so crazy: a nun at my dad’s high school tried to convince my grandparents that they were pronouncing my uncle’s name (Stephen) incorrectly (she said it was Steff-En and wouldn’t listen to their objections).

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  8. Aaron H Frank

    Is it just me or does David look like Chris Elliot?

    https://en.wikipedia.org/wiki/Chris_Elliott

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  9. James Bennett

    I have to agree with David. When I was in the Guard we had soldiers who were threatened with Article 15s merely for using their personal e-mail accounts to send completely unclassified training schedules. Any issues with classified documents resulted in investigations immediately, even mishandling within the SCIF.

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    Mickey

    With regard to mishandling of classified documents as a military member: As a retired officer, I can say that I have never seen anyone jailed for mishandling of classified unless it was an "add on" charge for something else (e.g. theft, espionage, etc.).

    What I have seen is Non-Judicial Ppunishment (NJP) and adminstrative actions for said misconduct. So loss of one's security clearance, reprimand, forfiture of pay, extra duty, even adminstrative discharge.

    So, under my authority as a commander, and assuming (1) there was an acceptance of NJP rather than Courts-Martial, and (2) proof of guilt, here's how I'd have likely handled those cases:

    "Airman Clinton": if I found her guilty, I'd likely revoke her clearance and issue a reprimand, demotion, loss of pay and allowances ("max fine"), and also likely process her for administrative discharge. All this assuming (a) she willfully and knowing mishandled classified documents, and (b) attempted to cover it up by destroying the records that proved her responsibility ("wiping the servers"). I doubt that I'd have gone through the trouble of referring her to the General Courts-Martial (C-M) Convening Authority (usually first general officer in the chain of command) unless there were accompanying crimes like espionage (which there wasn't in this case).

    "Airman Biden's" case is slightly less serious in that "he" found the documents and returned them immediately. I likely would've issued a reprimand and temporarily revoked his clearance, probably extra duty, and reassigned him to other duties with a "less than stellar" performance report. Odds are that absent a significant and sustained improvement in duty performance, that would've effectively ended his career. If there were other negative duty performance indicators (and there almost always are), then an administrative discharge for "failure to adapt to military life" is also an option. However, if his duty performance was otherwise good, then he could recover although it might be a long, long time before anyone let him around classified again.

    "Airman Trump's" case is slightly more serious, given the back and forth and attestations that the classified documents were turned in, at least the appearance of deception / obstruction, and the after-the-fact assertions that he had done nothing wrong. Also, according to press reports some of the material in question appears to include Critical Nuclear Weapon Design Information (CNWDI) which may *never* be declassified by *anyone* (even POTUS). That is a case that I might consider referring to the Convening Authority with the hope that a C-M would find him guilty and issue a punative discharge (i.e. Dishonorable or Bad Conduct Discharge) rather than an administrative one. If the JAG didn't feel he/she could make the case stick in court, then assuming he accepted NJP, then I'd probably issue a reprimand, demotion by at least one grade and maybe two, extra duty, fine, and process for adminstrative discharge with a characterization of Other Than Honorable. If he was an officer, then I'd recommend Dismissal from the Service.

    These are just hypo's of course, because I don't know all the facts of the case(s) in question, and I never judged a case without knowing all the facts and each case on its merits - and there might be mitigating factors and if there were the Area Defense Council would hopefully point those out in the Airman's response to my offer of NJP. However, those consequences seem consistent with actions I've witnessed other commanders give for similar bad conduct.

    Bottom Line on Bottom - no handcuffs for mishandling classifed unless there are other factors involved, but definitely career ending and serious repricussions.

    PS - might be really fun on the podcast to have occasional discussions of the Military Justice System!Show less

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