Spies, Shredders, and Mistaken Identities

Looks at documents. Glances at shredder. Looks at documents.

By and

Honor, thy name is the Pence staffer who found classified documents and resisted the urge to accidentally let them slip into a shredder. In addition to covering the latest in the Trump-Biden-Pence-Carter documents drama, David and Sarah discuss what’s shaping up to be one of the most egregious cases of spy corruption in American history.

Plus:

-A Georgia grand jury update
-A head-scratcher case of wrongful arrest
-Some thoughts on Florida’s crackdown of the College Board’s African American Studies AP curriculum

Show Notes:

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  1. Joe1776

    Speaking of classified information are we to believe all the leaks that have happened in the fbi and mueller investigation were not intentional? Was anyone prosecuted? That and plenty of other corruption that has happened in our doj for at least 6 years make this news very unsurprising.

    It’s not with glee, I have been sick to my stomach this whole time hearing about FBI lawyers intentionally altering documents, the fbi launching investigations based on what they know is oppo research, the fbi getting fisa warrants based on false information and never letting the court know after they found out it was false and never taking action against Steele who lied to them. Instead doubling down on oppo research conspiracy theories. Then the barriers to make it difficult to ever find any of this out. 50 former intelligence officials signing something in order to promote misinformation (that could skew the election) about hunters laptop. Then the leaks from the mueller investigation was atrocious it was like every week the press would get half truth to run with to stir up speculation and ill will toward trump. And mueller ran the fbi for over a decade. How can anyone be surprised?

    Ok somehow you guys seem surprised there is corruption at the fbi. Will you finally agree there should be more transparency and oversight? Director of fbi only appointed for 2 years tops so he or she knows fresh eyes will be on what is happening soon? Will this mean the fbi may not be able to do as much? Possibly but do we really need an entire wing of the fbi telling companies what American citizens should have their political speech censored? It seems the fbi is doing too much as it is.

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  2. Grandymitchell

    A few thoughts on the Black Studies AP kerfuffle. 1) David and Sarah kept calling this a Black history AP topic. Black studies is different from Black history, IMO. Similarly, women's history ≠ women's studies. A quick Google of "Black studies" will yield any number of descriptions. Here's a Missions statement from Providence College: "Our program is committed to promoting and encouraging scholarship that challenges multiple forms of oppression within the U.S. and globally. The program engages in activities that encourage students to critically think of knowledge production and to arm them with the necessary tools to critique such production." 2) The purpose of AP exams is "Advanced Placement": allowing students to get college credit for all or part of the introductory course in the given subject. I suspect that the College Board AP Black Studies program is structured around what is generally covered in college-level Black studies programs around the country and so reflect the perspectives (and biases) of those programs. If the College Board wants colleges to accept AP exams, it probably needs to hew to what those colleges teach. Personally, I think Black studies is too much a boutique and trendy area to warrant a high school emphasis.

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    Bill Dyer (aka Beldar)

    I respectfully suggest & request that the next AO include among its topics the pending jury trial of the shareholder class action against Elon Musk for his false statements on Twitter regarding the status of financing to take Tesla private. I think this is newsworthy, and perhaps worth recruiting a guest with deep knowledge (more current than my own) of the federal securities laws.

    My take:

    In 1987, as an associate at Baker Botts, I helped trial department partner Phil John brief, and prepare for the oral argument on, this Ninth Circuit appeal on behalf of the firm's regular client, T. Boone Pickens, Jr. and his Mesa Petroleum Company: Newmont Mining Corp. v. Pickens, 831 F.2d 1448 (9th Cir. 1987).


    It involved a challenge by a takeover target, Newmont Mining, to Mesa's and its partners' mandatory disclosures, under the federal Williams Act governing takeover bids of publicly traded companies, regarding the source of our group's proposed funding.

    Specifically at issue was whether or not the presentation for market scrutiny of a "highly confident" letter from an investment banking firm, when fully disclosed, was indeed a satisfactory disclosure by our clients. "Where are you getting the money?" in short, is often THE key issue in the information wars over a hostile takeover attempt, and the inevitable litigation about whether adequate disclosures have been made.

    We won: https://scholar.google.com/scholar_case?case=8618462795917772385&hl=en&as_sdt=644

    Among our arguments was that our disclosures included on their face all of the contingencies and risks that the "highly confident" letter might fail to pan out, and that the investment banking firm couldn't actually sell the junk bonds that would have financed an acquisition. The purpose of the federal securities laws isn't to prevent the sale of risky securities, but rather, securities that have been LIED ABOUT. And when you truthfully disclose the risks, you satisfy the law; the market actors can make their own well-informed decisions, which may (and often does) include taking risks!

    This is going to be the problem for Mr. Musk in his current trial, about which this article is very revealing. I take with a grain of salt the article's characterization of Musk from the witness stand; it's what I'd expect from him, but I haven't seen any video of his testimony and would reserve judgment on how good or bad a witness he was.

    But what a recent AP article about the trial particularly highlights is that the district judge has already concluded, as a matter of law (specifically, statutory interpretation and application of the Williams Act), what Musk DID tell the market was unquestionably false:

    ===begin quote===

    ... He hadn’t locked up the financing for his proposed deal or even pinned down down how much would be needed to pull it off, based on testimony from Musk, other witnesses and other evidence.

    "That is one reason U.S. District Judge Edward Chen had decided last year that Musk’s 2018 tweets were false and has instructed the jury to view them that way."

    ===end quote===

    Link: https://apnews.com/article/elon-musk-spacex-technology-business-c65b26faff5af1a9016d44dcb677c2dd?utm_source=homepage&utm_medium=TopNews&utm_campaign=position_05

    Friends and neighbors, winning a case in which that sort of jury instruction has been given before the jury ever retires to deliberate — well, that would be quite extraordinary.

    And I'm pretty sure the instruction itself was and is quite proper under the existing law, including the Newmont Mining Co. v. Pickens case. I therefore rate Mr. Musk's chances of winning this trial to be very poor indeed — at least, they should be.

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    1. Brendan Bossard

      Given Musk's verbal diarrhea, is it possible that he can claim that he did not knowingly speak falsely? If so, could this make a difference in the case's outcome?

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        Bill Dyer (aka Beldar)

        He is so claiming, and if believed by the jury may escape financial liability to those who acted upon his tweet. On this question of intention, the jury's conclusions will be given great, indeed near total, deference. But it would be a rare, rare jury who is likely to agree with him, in my own estimation.

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    Hawks Law Office

    David, just a gentle reminder that what comes after "Due" in the Due Process Clause is not just "Process" but "Process OF LAW." It is this concept of "law" that provides the substance of the Due Process Clause, which fundamentally prohibits the Federal and State Governments from exercising arbitrary power. In my view, this means that, regardless of process, the Federal Government must act within one of the enumerated powers of Congress (including those incidental powers granted by the Necessary and Proper Clause), while states must act within its so-called “police powers.”

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  5. Paviroti

    Am I the only one who thinks their take on Mike Pence was pretty partisan? I mean why did he get a pass and his “team handled it beautifully”. I am sorry but to me it appeared self righteous. He said last year when Trump’s stuff was going down that he didn’t take any documents and like a lawyer… ahem added “to the best of my knowledge”. Now all of a sudden he decides to search ? Why is that story accepted at face value and not Biden and Trump’s? Let’s be clear I am not defending Biden or Trump. But it appears Sarah and David like Pence personally and decided to give him a pass.

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    1. Brendan Bossard

      I think they were referring to how his team handled the PR aspect of it, not the substance of the matter itself. I think they would agree with you about the fact that he should not have had those documents.

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  6. McScott

    David and Sarah.

    First of all, fan of the POD. Second, apologies for the length of this, but my comments are both in response to this particular episode and reflective of comments I’ve heard from time to time over the last year when you’ve talked about schooling/education. So here we go: (1) long-time educators (and I am approaching two decades in the field) are familiar with the frustration of the educated parent fallacy. Simply put, this is when a parent (let’s say with a masters or MD or law degree) assumes that because they spent a long time in school, they have expertise in curriculum and pedagogy and thus are at parity with their children’s educators. This is perhaps akin to someone who has been in the criminal justice system for 8 different offenses believing that they are on par with their lawyers. No doubt that defendant has important knowledge of the process, but really? Enough said there. This leads me to (2) On today’s episode you discussed the AP African American studies controversy in Florida. But you did not do so from a legal perspective. Rather you took upon yourself the punditry of educators. I humbly suggest it did not fit well. (3) I appreciated Sarah pointing out that College Board is a private organization that has managed to gain incredible influence in the public school system. Most parents don’t know this. But (4) I think, Sarah that I’d like to flip your understanding of AP from a ceiling or goal to reach for to that of a floor or baseline. If you check out the private schools in northern VA or New England, etc, you will see that most of them have forsaken the AP regime. Why? Because they can do so much better. So, what function does AP play? An important one – in the public-school sector. AP Calculus in Podunk, OK, is going to be very similar to the AP Calculus in Fairfax. This is of value. But it is a floor, a baseline of consistency across disparate school districts and, arguably, plays an important role in that sense(at this point I’d want to point out that I have taught AP Calculus AB and BC, AP Physics and AP Environmental Science). And finally, (5) in today’s episode Sarah confidently declared that the purpose of education is to get kids to be ‘critical thinkers.’ See point 1 above. But content matters. There is no thinking without content. It is fallacious to hold that the education of the young is the transmission of some sort of divorced-from-the-content-of-human-history skill of ‘critical thinking.’ I get it, from outside the enterprise of education it is easy to assert that. It is not true. Anyway, ya'll are still great, even when your wrong!

    Cheers,

    Scott Mc

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  7. Sean O

    With the AP course, if the goal really is indoctrination, isn't that better left to colleges where students would learn from actual critical theorists, rather than some teacher who really doesn't know what they are doing? If indoctrination is the goal, why would they want students to test out of a course that would do a much better job at it than what can happen in a high school?

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    Ben Connelly

    A single waterfall is a “falls.” “Fall River” or “Fall Creek,” is the name of the waterway. “Fall Creek Falls” isn’t redundant.

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    Kimbaukusfitzgibbon

    About AP classes. As a retired mathematics teacher and administrator, I would say that the primary purpose of AP classes to students and their parents is in college admissions, as colleges and universities want data external to students grades because of grade inflation. This is why in my mind the AP exams have become so popular.Yes, Sarah building reasoning skills as well as an intrinsic love of mathematics :) was always my goal as an AP teacher of AB and BC calculus as well as statistics. The College Board’s concern in my my mind was getting courses built that colleges and universities accepted.

    State K-12 curriculum. Individual states do not have very much control over curriculum because publishers of curriculum largely listen to California and Texas in terms of curriculum because of their population size. I think De Santis is trying to take advantage of his state’s rank 3 population size. It doesn’t matter if he wins all of these lawsuits, he’s going to be able to turn curriculum for every state because of his state’s size and the noise that he’s making.

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    1. Aaron H Frank

      That might have been true up until 2020. But then all scores - SAT, ACT, and AP, became optional for many elite universities. It would be interesting to see how many students who did not submit any test scores were admitted to top schools.

      For my oldest who is my first in college, he and several of his friends had so many AP tests accepted that they had a full year of credit at the colleges before they even started.

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      Tmdutton11

      I am happy to find another Dispatch member who has taught AP Calculus!
      I teach AB and BC currently, and will likely teach another brand new AP course next year—AP Precalculus. Why is this one not getting as much press??

      And I agree about the purpose of the AP program. I received an email this week from College Board about how this curriculum was developed, and of course it mentioned consulting hundreds of universities and professors. So, for better or for worse, whatever merits or downfalls this curriculum has is likely more a result of what universities will count as a valuable credit and less what College Board wants kids to know. Also, Sarah’s point about the teaching vs the curriculum is huge—wherever this course is taught, whether it sparks critical thinking or feels like political messaging will depend almost entirely upon the teacher.

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        Kimbaukusfitzgibbon

        So very good to hear that there’s an AP Pre-Calc course. I have no idea about why this class is not getting public attention other than mathematics tends to not get public attention unless it’s connected to “new methods.”You are most likely a great mathematics teacher because you clearly display a passion for the topic, understanding of students, program issues, and must have the content knowledge because you’ve taught BC Calc. My best wishes and Jewish prayers are with for many successful academic years.

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          Tmdutton11

          Thank you! I appreciate that.

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  10. Paulkempf

    Singular of "waterfalls" is "waterfall."

    But the singular of "falls" is "falls." (English, sheeesh!)

    Source:
    https://thegrammarexchange.infopop.cc/topic/falls-singular-or-plural

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