 Welcome to the Reason Livestream, which today is prerecorded for scheduling purposes. I am Zach Weismiller joined by my colleague, Nick Gillespie. Hey, Nick. Hello, from the past. And our guest today is Clark Neely, a constitutional lawyer and senior vice president for legal studies at the Cato Institute. Thank you for joining us, Clark. Great to be here, thanks. Today, we're talking about the indictment of Donald Trump on 37 criminal counts of mishandling classified documents and obstructing the investigation into that mishandling. We'll briefly sift through the details of the indictment and the specific charges, and then talk more broadly about the political implications and how those of us who are interested in shrinking the size and scope of government should think about what transpired here. Clark, in a tweet thread referencing the movie Tombstone, you describe this indictment as a bombshell and a magnum opus. What is so epic about this 49-page document? Well, I think there are a few things. First, the quality of the allegations in terms of the level of detail and the source of the information. We don't have to guess whether DOJ has the goods, so to speak. I've written hundreds, dozens if not hundreds of complaints in my career, and I've read plenty of others. Sometimes you get the sense from a document like that, that the person who wrote it has a sense of what may have happened, but maybe they don't have all the evidence yet and they're kind of probing away in the dark. This is the opposite of that. You get the very clear impression from reading this indictment that the federal prosecutors know exactly who did what and at what time and with whom, and not only do they know it, they're gonna be able to prove it from at least three different highly credible sources. One is an audio recording that Trump seems to have made when he was speaking with a ghost writer and a producer at the Bedminster Golf Club where he says in effect that he shows them a document that he knows to be highly classified. He says he could have declassified it when he was president, but he didn't and now he doesn't have the power anymore, which completely destroys what seemed to have been his sort of primary defense before. The prosecutors also appear to have video evidence from Mar-a-Lago from the security system there of various staff members moving boxes around, including at a time when they were under a grand jury subpoena and in effect hiding those boxes so that they can't be reviewed in response to that grand jury subpoena. And then also, they're almost certainly going to have the testimony of multiple Trump lawyers and staffers who were, he essentially appears to have attempted to recruit into a conspiracy to hide documents and to only make a partial response to the grand jury subpoena. That's a lot of really difficult evidence to run away from, as I've said elsewhere, a recording almost always beats a serial liar in court. And so the conduct is detailed, it's devastating and DOJ is almost certainly going to be able to prove it in court. Now, could Trump have some kind of mitigating evidence or exculpatory evidence? I suppose he could. I'm not holding my breath. Could you just very quickly explain what are the limits of lawyer or client privilege and all of this kind of stuff? Because that's part of the gotcha here. It seems to be that like his lawyers are tripping over themselves to be like, yeah, you know what, he really did everything that you think he did. Right, yeah. So there is a lawyer-client privilege that is robust and can be asserted to prevent the disclosure of communications between a lawyer and client. And even to prevent the lawyer from having to even talk about those at all. But there's an exception, it's called the crime fraud exception. And so if the client tries to involve the lawyer in some sort of a crime, for example, if I have a lawyer and I say, hey, I'm gonna need you to pick me up right in front of this bank on a certain day at a certain time. And maybe there'll be a lot of police there. And if I come running out with a gun in my hand, I still need you to drive us away. That's not going to be protected by attorney-client privilege. And that's the argument here is that that's what Trump tried to do with his lawyers is to involve them in a conspiracy. And it's already, Judge Beryl Howell here in Washington, DC has already required at least one of his lawyers to testify about communications that the lawyer had with Trump under the crime fraud exception. I think that's gonna stand up. Let's look at some details of the indictment here, pulling it up right now. The first 31 counts, counts one through 31 are willful retention of national defense information. So that's actually holding on to the documents. The remaining charges are basically some form of obstruction or lying to investigators. It says that without authorization, he retained at Mar-a-Lago documents relating to national defense. And here are some of the types of documents. There's a sick in his office. He had six top secret documents, which is the highest level of classification supposed to be for documents that would present a grave threat to national security if they were exposed. We can talk a little bit more about classification and what should and shouldn't be classified in a minute, but just going through the numbers here, then in the storage room he had 11 top secret, 36 secret, 28 confidential documents according to the indictments. Just some examples I have highlighted of the types of documents. An intelligence briefing related to military activities and planning of foreign countries. Another one concerning nuclear capabilities of a foreign country. So, this is fairly high level stuff and then these are some pictures that have floated around the internet of how these documents were being stored on a kind of stage in Mar-a-Lago. There's a bunch crammed into a bathroom and then there's a bunch of newspapers, clippings mixed in with redacted documents on the floor. So, not a lot of care being taken and the interesting thing about this picture to me is that it shows the degree to which it was like a bunch of his personal stuff just mixed together with classified documents kind of opening the door for then the FBI to come in and sift through all of his stuff to look for classified documents. You know, you get me one hoarder on that jury and Trump is gonna walk. So, and all of this is happening under, all of these charges are happening under the espionage act. So, and we as libertarians earlier on the reason roundtable this week, there was a lot of discussion about should the espionage act even be a law at all but putting that aside for a second, what do these pictures and this evidence say to you, Clark about the kind of strength of the case against Trump? Well, it's horrifying. It's horrifying. So, two things are true. We do have a problem with over-classification. No serious person disputes that but that doesn't mean that every document that has been classified was improperly classified. When I clerked for a judge here in Washington DC in the mid-90s, there was a case involving terrorism that was in that judge's court. So, my co-clarke Bob Levy and I both had to get top secret SCI, especially compartment and information clearances. That's a really sobering process. And it culminates in a meeting in a secure room inside the Department of Justice where it's explained to you what the handling procedures will be and the consequences if you fail to observe those procedures. They do not mess around with that level of classification and for a good reason. There are plenty of documents that the US government produces, the disclosure of which would result in the loss of human lives. It would result in people being killed who are working for our intelligence agencies in hostile countries. It would result in people being killed because a military operation that was supposed to be secret was not. So, this is not open to discussion. There are documents that not only have to not be turned over directly to agents of a foreign power, they have to not be stored in an insecure location because foreign powers are aggressively working to penetrate any facility where they think there might be useful intelligence. And you can absolutely bet that includes Mar-a-Lago. So, the careless handling of these documents is inexcusable. We don't know, at least we in the public don't know whether discernible damage was already done from the sloppy handling of these documents. But it's something you don't mess around with. Or if you're a responsible person, I should say, you don't mess around with it, obviously Trump did. And so I just, we can talk about whether other people should have been prosecuted or prosecuted more aggressively for their sloppy document handling practices that probably should have been. But to simply wave your hands at this and say, well, everybody does it and therefore Trump should get a free pass, I think is untenable. For the espionage aspect of that, the criticism that a lot of libertarians and civil libertarians have of that law in particular, the Espionage Act of 1917, a World War I era law, World War I era law is that it has a real chilling effect on whistleblowers, for instance. That's how it's been used kind of in modern times against people like Daniel Ellsberg, Edward Snowden, it's being hung over the head of Julian Assange right now. And Julian Assange is not even a government employee, he's a publisher. And so that opens up questions about like, if you're a journalist publishing classified documents, are you then potentially subject to this law? So I think there's some serious concerns about the Espionage Act that should be taken seriously. And this is something that I would ultimately like to see repealed in the long or short run. On the other hand, I see your and acknowledge your point, Clark, that some level of classification seems completely necessary and valid for like legitimate state secrets. So is there a way, now that we're talking about all these issues of classification and the Espionage Act, that we could more sensibly think about classification so that people who should not be tripping over these kind of laws keep getting entrapped in them? Right, no, I think those concerns are absolutely valid and there's no question that the Espionage Act and other similar laws have been abused by the government in order to cover up things that they would rather the public not know about, even when there's no sort of legitimate kind of operational or security reason for doing that. And part of the challenge here, of course, is that this is an area where public scrutiny is difficult because there are some things that members of the public just can't know because of the sensitivity of that information. Some new technique that we have, for example, for collecting information or the fact that we have or have not managed to penetrate a particular foreign government, these are things that ordinary members of the public just cannot know or else again, lives could be at risk or people could die and incredibly important operations could just be torpedoed through the disclosure of this information. So it's a challenge, right, because we just don't have the ability to have the kind of public oversight that we know is generally required to bring the disinfecting power of sunlight. Now, the other hand, there is a huge problem which is that we're talking about the exercise of power by government officials in the dark and I can guarantee you, man, there are prosecutors within the Department of Justice that if you made them into a school crossing guard tomorrow they would figure out a way to abuse the amount of power they had as a school crossing guard. So it's a very difficult and challenging. And I would say, I think we almost have to resign ourselves to the fact that there's no, we're not gonna find any kind of perfect equilibrium here but we can certainly do better and we should do better. Well, and it's also worth pointing. Well, here, a question for you, Clark. Do you have any sense of out of the, what percentage of documents that are actually classified top secret really don't deserve that? Because over classification, this is one of the greatest bloated government programs over the past 30 years or so. Because when you step outside of the partisanship of this and oh, is this bad for Trump or good for the Democrats or something like that? It doesn't really put people at risk, overseas agents, people in the military and stuff like that. It is kind of mind boggling to think, okay, so there are these top secret documents that have been hanging out in Trump's toilet for months. We don't know what they are. Does the government know what they are? And are they like, yeah, we're gonna send a group down there and they're gonna go get them eventually, et cetera. We are entering this moment after decades of losing trust and confidence for good reason in the way the government talks about stuff. Is this, ultimately, is this very serious? Oh, there's no- The actual information that's there. Yes, absolutely. I mean, we don't know, but it has been represented, for example, that some of the FBI agents and DOJ prosecutors who were themselves, members of the National Security Squad, were not sufficiently clear to see some of the documents that they seized and had to go and get additional clearances in order to handle those documents. And that's, again, yes, we have a problem with overclassification and in answer to your question, nobody could possibly know how many top secret documents should have been classified at a lower level. Surely there are some, but reasonable view can differ about how many. But I take seriously the representations that have been made that some of these documents were so sensitive that even members of the national security division of the Department of Justice who have very high clearances were not clear to see some of the documents. And I'll add one more thing. This is something that hasn't gotten widely reported, but is, I think, somewhat ominous. And that is that there's a discrepancy between the documents that are listed in the FBI's receipt in terms of what it finally managed to get when it executed the search warrant at Mar-a-Lago in August of last year and what documents have been charged in the indictment that came down last week. It's about 13 top secret documents that show up on the FBI's, that are generically described in the return from the search warrant that are not charged in the indictment. And one speculation, and let's emphasize that it is just a speculation, is that those documents are so sensitive that the originating agency, whichever agency it was that produced them could have been the CIA, the National Security Agency, the National Reconnaissance Office, NRO, said to the Justice Department that those documents are so sensitive that we can't even risk the possibility they could ever get out in the public and we do not authorize you to include them in that indictment because they just can never see the light of day. I'm not saying I know that happened, but it has been speculated that there are documents in the mix that are at that level of sensitivity. So yeah, I found it was just good. No, I was just gonna say, it sounds like that might be why the UFO story is getting spiked as we speak. Right, go ahead, Jack. Well, yeah, let's go through the second component to this, which are the obstruction charges, which in a way are really the reason this is happening because as we'll get into others have taken home classified documents with them, but because they cooperated more or less in some cases more than others, the FBI and the Justice Department has gone easy on them, but Trump has been accused of doing everything he could to hold on to the boxes. And our colleague, CJ Chiromila's theory for this is the My Boxes theory that he just believed these are My Boxes. I'm entitled to them My Boxes hands off, but we can dig a little bit into his motivations, but first let's understand what exactly is alleged, he's alleged to have done. This is Count 32, conspiracy to obstruct justice. It names Donald Trump and his kind of body man, Waltine Nata, who are accused of knowingly conspiring or confederating to conceal a record document or other object from an official proceeding. There are some of these conversations that are recorded that this kind of validates the My Boxes theory somewhat. I don't want anybody looking. I don't want anybody looking through My Boxes. What happens if we don't respond at all? These are all statements Trump allegedly made. Wouldn't it be better if we just told them we don't have anything here? And then here's a conversation between Trump and a staffer. And I guess this is where the ghost writer is present and they're looking through one of these boxes. There are allegedly classified materials in there. Trump is trying to decide, can I, can I not show this guy or girl my document? I don't know. He says, I think we can probably write. The staffer says, yeah, we'll have to try to, and then Trump interjects, declassify it. And he says, see, as president, I could have declassified it. Now I can't, you know, but this is still a secret. So that indicates Trump was well aware that this was classified material. And it also kind of gets to a weird thing where so much of this case seems like it might hinge on, you know, did he declassify it? Like that's his defense so far. It seems like as president declassified all this stuff and I have that power, that is kind of weird that like, could he technically, while he was still in office, have just kind of announced I hereby declassify all of these documents and then this would not be an issue whatsoever? Yes, stranger that may seem. The president does have that power. The president has the power to declassify documents or also to in effect grant security clearances and show classified documents to whomever he wants. And he's, you know, he's the commander in chief. He's a chief executive. He has those powers. What has not really been worked out or kind of litigated is whether there's some sort of a procedure that would need to be invoked in order to validly do that just doesn't really come up. And so we don't know, but again, that exchange that you put up on the screen just a moment ago where he says in a recording to an ordinary citizen who doesn't apparently hold any security clearance, you know, that this is a very sensitive document. I'm not supposed to show it to you. I could have declassified it, but I didn't and now I don't have the power. I mean, it's pretty damning. And I don't know how you walk that back. I suppose, you know, Trump being Trump, he'll say something like, well, you know, that was literally the only document in my possession that I didn't declassify. I declassified all the other ones. I don't know, you know, I think I was, let me add this. One gets the impression that, you know, Trump kind of came up through a certain culture and it was the culture of the New York real estate market of the 1980s. And I get the impression that Trump's overseas the world is kind of a big game. It's a game, it's a contest and only chumps follow the rules because, you know, in the New York real estate market, you don't follow the rules. You bribe government officials, you take advantage, you rip people off, et cetera. And that's how you win. And I really kind of get the feeling that that's how he has approached the whole rest of his life, including his political career, that essentially, you know, rules and norms are for chumps and it's all about winning. And so, you know, if you get caught, for example, you know, possessing some documents that you're really not supposed to, then that's a new game. And the game is how do you get out of it? The way you get out of it is you, you know, you would list your staff in helping you figure out, you know, where do we need to hide the boxes, which documents need to get shredded so they never get found. And so I find it completely plausible that he did that in response to the grand jury's opinion. And I'll add one more thing as a, you know, career lawyer and somebody who's clerk for the federal judiciary, man, if you want to make absolutely certain that the DOJ decides to nail your skin to the wall, jerk them around in the course of an investigation, lie to FBI agents and or prosecutors while they're investigating the case and see what happens. Can I, as somebody who was both born in New York City and is, you know, phoning in from here, or I agree with you, you know, what I see, what I see that is not necessarily anything specific to New York or real estate, but rather it's a CEO who runs an organization like a petty fiefdom or a grand fiefdom at that point. But also, and I think this is really important because this gets to not only the question about Trump's behavior, but also I think a sinking feeling among an increasing number of Americans, what you're describing is politics, particularly in DC and everything that has come out of, you know, Washington realistically over the past 50 years, but out of presidencies and you can look at people like, you know, Bill Clinton and the way that he acted behind the scenes, George Bush in plain view and the way that we, you know, got into things like the Iraq war or the way we paid for the war, the way that Dick Cheney talked about how, you know, we don't need norms, we can just basically do whatever we want. We have a theory of the presidency that allows us to do this. We're gonna be talking about Edward Snowden a little bit, but, you know, when Barack Obama was saying, you know, we have the most transparent administration ever. And then when Snowden reveals the fact that you're a liar about that, you know, Obama isn't like, oh yeah, you caught me. He's like, oh, you know, we should have a conversation about, you know, ubiquitous surveillance so that this is really important, I think, to take it out of partisanship. And it doesn't, you know, mean any of that, but we are, we're in the fourth act of five acts, maybe. Maybe it's a four act play of the degradation of the way that the government works and in plain view. And this is both the blessing and the curse, I think, of the era of force transparency that most came into focus with WikiLeaks and the stuff that Chelsea Manning leaked and the things that Julian Assange did and he has sacrificed his life effectively for revealing the way the government does business, which is very much at odds with the idea that there are rules and that the people involved in this system are the ones who are maintaining the rules when nobody's looking. You know, there are the equivalent of medieval craftsmen who, you know, put full faces on gargoyles that were, you know, in the eaves of Notre Dame, you know, that nobody would ever see. They're so dedicated to process. And we know that that's horseshit and it is terrifying to see Donald Trump act like that. But I think it's also important to recognize that we got a bigger problem here and it's not simply Donald Trump. Isn't it? Yeah, I think with- Yeah, go ahead, sorry. So I think with characteristic perspicacity, Nick, you really put your finger on the heart of the matter. An image occurred to me earlier today that, you know, if you've ever been whitewater-wrapping, that your guide will kind of try to scout the river and what they're looking for is sort of what the currents are doing and where they should be on the river. And you can tell a lot about what's underneath the surface of a river by what you can see on the surface in terms of, you know, boils of water and swirls and things. And I think that's really a good metaphor for what's happening here. There's so much energy going on beneath the surface. And I think the energy boils down to this and I tweeted about it this morning. We are told that no one is above the law in this country and that is aspirational and completely false. If you're a sufficiently high-ranking politician, you are absolutely above the law, practically speaking. And we've never really had a kind of an explicit conversation about, well, just how far above the law? Like if Donald Trump beats somebody to death on the front lawn of the White House while he was president, would he have gotten a free pass or that? Probably not. But do politicians routinely get free passes for messing around with classified documents and showing them to people who don't have a clearance? Yeah, absolutely they do. So there are two questions we've never really had an explicit discussion about is just how far above the law are high-ranking politicians. And I think that's a function, frankly, of your status in the organization. And under what circumstances can your free pass be revoked? And I see Trump in some ways as essentially kind of the oaf at a catillion. He's this awkward guy that doesn't know the rhythms of DC politics and he comes blundering in. He's got his invitation, but he's dressed wrong. He doesn't speak right. He's drinking out of his flask and he's embarrassing everybody because there's a way that you're supposed to take advantage of that free pass and it's the way that the Clintons do it. You lie in a certain way. You push the envelope in some ways, but not otherwise. And then when you get caught, you hire the right lawyers. You hire the white shoe lawyers who used to work at the Department of Justice and they still have relationships there so they can pick up the phone and say, you know, you really don't want to prosecute Hillary just in general and also because she might be president one day. So let's work this out. Trump just doesn't know how to speak that language. He doesn't know how to move in that milieu. And I think that's one of the reasons why there's so much, you know, more, you know, sternment drying over this, that he's not so much what he did, although that's part of it. But a lot of it is that the way he went about it, he's embarrassed the establishment by taking advantage of his free pass and not doing it according to the customary norms, if that makes sense. So do you think that is more an argument for revoking that free pass from everyone and saying, well, moving forward, presidents are not going to be so far above the law or is it kind of the opposite where we say, look, Trump could have declassified this. He could have waved the magic wand and this wouldn't have been a problem at all. So let's just recognize the political reality that presidents are kind of above the law and that all has to be resolved at the ballot box and through the political process. Yeah, I think there's just not one answer, right? So certainly more even-handed treatment would be important. I mean, in my opinion, Hillary Clinton not only violated the laws about mishandling classified documents or national intelligence information as the technical term, but I think she also obstructed justice. I think, for example, destroying, applying that bleach bit or whatever it was to her server while some of those documents were under subpoena. But again, she did it in a particular way, right? She had the right kind of lawyers representing her. And so that's one point. I think that more even-handed treatment is vitally important, but also, and I think this is gonna be maybe even more difficult, is dialing back some of these laws. We talked about already how the espionage is overbroad in some ways and so are many other, countless other federal laws. And so if we're gonna give high-ranking political officials a free pass for violating certain laws, then that suggests that perhaps those laws shouldn't be on the books at all and we'd be better off if we just dial all that back. Whether that's even feasible. In other words, I've been doing criminal justice reform for a long time and what I see is essentially a ratchet here. I'm not saying that you could never repeal a criminal law but it is extraordinarily unusual and these laws tend to be very, very sticky. And so I think the essentially the giving out of free passes to people whose job almost not requires, but invites them to violate some of these laws is just the accommodation that we've reached there. We've got these overbroad laws on the books. They're virtually impossible to repeal, but we've got people in positions of power where they're probably going to commit some violations. I mean, good luck running, by the way, for federal office without committing some kind of a violation of campaign finance laws. I don't think it can be done. So we create a situation where a certain amount of free passes have to be handed out just to make sure that the machine continues to operate. If there's a path out of that morass, I don't see it. I hope we can get to that. I just want to throw one more kind of log on the fire here. And again, there's a partisan version of this, but also just a structural one, which is it's kind of laughable when the FBI says, somebody was obstructing an investigation. In every article I would hazard, since Reason was founded in 1968, we would be arguing that, of course, you obstructed justice because that is how the FBI operates. The minute you talk to them, they have figured out a way to get you on perjury or obstruction of justice or doing something. I mean, that's ultimately what Martha Stewart was found guilty of, for God's sake. And that took the form of her defending her companies when she was being attacked in the press for insider trading, which she was never charged with nor convicted of. But so we have an organization, and it's not like the FBI, oh, they were bad back in Jake or Hoover's day, during the third FDR administration. It's like we had a report that came out, what, like a couple of months ago, that damned the FBI and the way that the chief, investigative organization for federal crimes within Washington, et cetera, is an absolute, either it's a joke or it's incompetent or it's overreaching constantly and all the time and shielding certain people and screwing over other people. So this thing is, I don't know what the right metaphor is, but it's like every aspect of this operation shines a light on a different part of the government, which is thickly and deeply corrupt. And I don't take any pleasure in that because I do think like, the nihilism that is becoming evident in America because we don't, for good reasons, trust our political and even our business institutions, that way madness lies. That's becoming a low trust society where nothing gets done, but so. No, listen, I agree with everything that you said and I would throw one more log on the fire, which is to say- Which is now an inferno for sure. Yes, no, unfortunately, right. I yield to no one in my willingness to throw rocks at the FBI, but it's not just the FBI. The FBI is a component of the Department of Justice. The Department of Justice itself is rotten to the core and rotten to the top on this front. And what I mean by that is that the Department of Justice routinely hands out three passes to members of the Department of Justice when they engage in criminal activity. I'll just give you a few examples really quickly. Rachel Rollins, who was a progressive prosecutor up in Boston and then was appointed as the US Attorney for Massachusetts, was recently pressured to resign and ultimately will resign or did resign for engaging in some of the most breathtaking Hatch Act violations that have ever been documented. Essentially what that means is engaging in politics while you are holding a political office. In effect, what she did was she tried to help her preferred candidate get elected into the position that she had left when she became a federal prosecutor. And this included, for example, sharing non-public Department of Justice information with her preferred candidate and information derogatory to her unpreferred candidate. And when they investigated, when they looked into this, she serially lied to representatives of the Office of Inspector General, which is a crime. And instead of being prosecuted like any of us would have been, she was allowed to simply resign from that job. And this is not an isolated incident. They had a mid-level manager at the DOJ a few years ago who was investigated for sexual harassment. And that investigation determined not only that he harassed, serially harassed employees, but he committed at least one sexual assault. And they determined that his interview had lacked candor, which is DOJ's way of saying that he lied when you are a DOJ person. They let him off the hook as well. And finally, you may recall the 2000, I believe 12 prosecution of Senator Ted Stevens from Alaska, the DOG team, DOJ prosecutors in that case cheated their way through that case. It only came to light because of a whistleblower and not one of them received any meaningful, not only not punishment, but any meaningful career consequences. So DOJ is an organization that is just absolutely rotten when it comes to keeping its own house in order and holding its own members to the same standard as the rest of us. And the FBI as a component of the Department of Justice, I would say reflects that cultural milieu, that cultural mindset of lack of accountability and double standards. So there was a tweet put out by Edward Snowden that kind of bolsters or agrees largely with the point, I think you're making, Clark, Edward Snowden, someone who knows a little something about the Espionage Act says, it's not wrong to say that the indictment of Donald Trump for mishandling classified documents is a case of selective prosecution. Spilled secrets are very much the currency of Washington and Trump was not alone in splashing them around. He was just the least graceful. So that's kind of in accordance with the, he's the ogre at the cocktail party or whatever that's embarrassing everybody. And when he's talking about spilled secrets being the currency of Washington, we saw a lot of classified information leaking out during the Trump administration. Comey even leaked out some documents that were technically classified and was reprimanded by the inspector general but never charged. And then what we've kind of been circling around a little bit and what everyone brings up as an analogy is Hillary Clinton is what Hillary Clinton did the same or worse or not as bad as what Trump did. Let's take a quick look back at what Comey had to say at that famous press conference where he dropped the charges and then dig into that question a little bit more deeply. Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive highly classified information. For example, seven email chains concern matters that were classified at the top secret special access program at the time they were sent and received. None of these emails should have been on any kind of unclassified system, but their presence is especially concerning because all of these emails were housed on unclassified personal servers, not even supported by full-time security staff. Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of information exposed in such a way as to support an inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice. We do not see those things here. So the obvious rejoinder here would be that, he mentions obstruction of justice as one of the components that he, judge, was not present in the Hillary Clinton case. You mentioned earlier the kind of acid wash of her servers that could be certainly interpreted as some obstruction of justice, but what do you think more generally about the Clinton-Trump comparison, should she have been handed a free pass or should Trump, because she was kind of handed a free pass, also be handed a free pass? Well, let's be clear, what Hillary did was jaw-droppingly irresponsible and criminal. If you are the Secretary of State and you are housing emails on an unsecured Betty Crocker easy-bake server at your home, which she was, you might as well set up every email that comes into that server to forward to Putin and Xi Jinping and Kim Jong-un, because they're gonna be reading them. And so the level of irresponsibility and cynicism on her part and criminality is difficult to express. Now, she is a high-ranking politician and everybody knew she would be a candidate for office and presumably thought that she would be president. And so according to the norms of Washington DC, she had to be let off the hook. And everything you just saw from Comey there sort of a retcon or a retroactive attempt to rationalize the preordained conclusion that Hillary Clinton would be let off the hook. And that was preordained. So then the question is, well, why doesn't Trump get the same consideration? And I mean, look, there's a tweet, former federal judge Michael Lutig had a tweet on Twitter where he said, if Donald Trump at any time during the back and forth with the National Archives organization that had been asking him to give back the box, has it just done it? Then he wouldn't have been prosecuted. And I think that's almost certainly right, but I'm not sure if Judge Lutig really understands kind of what he's just acknowledged, which is that some pigs are in fact more equal than other pigs because the rest of us certainly would have been prosecuted. There's an Air Force Lieutenant Colonel who just had maybe a few dozen classified documents in a storage pod and in his personal quarters who just got three years in federal prison for that. So we know for a fact that if it had been anybody else, we would have been prosecuted. But again, if you're a sufficiently high ranking politician, you're going to get a free pass. The question I think is, was Trump's alleged, and I'm confident that he did it, but whatever plays out, shenanigans with the attempt to obstruct justice lying to the FBI and so forth, was that sort of materially sufficiently worse than what Clinton did, where she went about obstructing justice in a way that's sort of more in keeping with DC norms. Again, hiring the right law firm, having your lawyers do some of the dirty work instead of you. Trump just went right to the source and said, okay, well, let's just, grand jury wants these documents. I don't want to give it to him. Let's have a conspiracy to make sure that they don't get them. I'm not, I don't feel like I'm in a position to really have an intelligent opinion about whether Donald Trump's behavior was or wasn't worse than Hillary Clinton's. I will say this, he was stupider. Hillary knew that she was in the circle of trust, so to speak, in that circle of special treatment and that she could get away with it. Donald Trump should have known absolutely that whether it's fair or unfair, he was no longer in the circle of trust and he no longer had the kind of all access free pass that the Clintons possessed. Which do you think, and this might be beyond your pay grade or expertise, but hell, why not ask it? Which one do you, which behavior set of behaviors do you think poses more of an actual threat to national security? Because, you know, he said, you know, when Hillary Clinton, you know, hired Geek Squad or something like that to come and put in her personal server, you know, and everything from Chelsea, you know, confirmation pictures to whatever was going on in the State Department, nothing important. I'm sure, you know, it was passing through that. Trump hiding, you know, his redacted documents among fake covers of Time magazine, you know, where he's listed as men of the year or something like that in the toilet. You know, there's no doubt, like I'm sure North Korea is prowling, you know, North Korean agents are prowling Mar-a-Lago, they're dressed up as illegal Mexicans who are working there, you know, without visas and without the proper documentation. But ultimately, you know, which of these examples do you think is actually worse for national security? I think it's impossible to say because we don't know exactly what was on Hillary's server versus what was in Trump's boxes. I think in terms of which one sets a worse example for others to emulate, it's definitely Hillary. The idea of just, you know, having all official email go through an unsecured server in your home is, you know, just, it's hard to imagine a more irresponsible, you know, sort of course of conduct to set. Well, a couple of things we don't know is, you know, did people who would otherwise have been sending, or did people who would be sending Hillary Clinton sensitive emails when she was Secretary of State pick up on the fact that they were going to a private server and maybe they hand delivered some things that they would otherwise have emailed if she were on a secure government server. Maybe they use oblique language or, you know, otherwise tried to sort of, you know, mitigate the exposure of that information knowing that, A, it was going on to a private server and, B, you certainly can't take that up with Hillary and try to get her to stop using that private server. Now, the other thing we don't know is what exactly were in these boxes that, you know, we don't even know how many boxes at this point. There's probably close to 100 boxes. One thing we don't even know is like, did Trump curate this information or were the people just running around the old office just stuffing stuff into boxes and so whatever was in there was by happenstance. I guess is some of each, but there are certainly things that if Trump had gone out of his way, for example, to really curate, like the, you know, the attack plan on Iran that was supposedly the document that he waved about in front of these unclear people up in New Jersey, it's difficult to imagine a worse document to be out in the open. And so I don't know, it really depends on the mix of information on the Hillary server versus in the Trump bathroom. You know, given the merger of the Saudi Arabian, LIV, you know, golf concern and PGA, you know, which, and they were having events at Bedminster at Trump's golf course in New Jersey. Who knows maybe, you know, a shake or two is like, hey, I gotta take a leak. I'm just gonna go wander around a little bit, you know. Well, you know, speaking of Bedminster, Trump had some thoughts from Bedminster yesterday on the indictments. So let's get the Trump version of events now and react to that. This is called election interference and yet another attempt to rig and steal a presidential election. More importantly, it's a political persecution like something straight out of a fascist or communist nation. Don't forget this persecution is being done by the same weaponized agencies that for seven years have been running illegal psychological warfare campaigns against the American people. From the Russia, Russia, Russia hoax to the no collusion, Mueller witch hunt to impeachment hoax number one, impeachment hoax number two, the fake dossier paid for by the Democrats. How about the fake dossier? Remember that one? The FBI, Twitter files and so much more. So, I mean, that's an example of the, it's just the frustration of kind of pulling apart a Trump speech where there are certain components there that are valid, like aspects of the Russian investigation as we've covered on the screen before were pretty bogus and a lot of wasted. We're completely bogus. Yeah, and we dissected the Durham report with Eli Lake a few weeks ago and I'm getting to the like, it's time to just dismantle the FBI position but we can talk about what to do about the FBI in a minute. But then it's also mixed in there with every single impeachment, which I think is definitely debatable. I think he did engage in impeachable behavior, especially in the Ukraine situation. But I guess my question out of that is like the fact that the FBI and the Justice Department as we've already talked about have been sloppy at times, seemingly politicized or unfair, seems to have opened up the opportunity for this kind of obfuscation from somebody like Trump. And I don't know if you have any thoughts as to how we move forward from this spot because it's one thing to say, we got to stop handing out the free passes, but then how do you do that in a way where you're not just acknowledging the political reality and seeing that you're going to inflame a large segment of the country over this perceived unfairness? Yeah, look, it's a tall order. I mean, the Department of Justice is an utterly rotten and compromised agency. I know I've been throwing a lot of stink at him, but look, I mean, this is the agency that gave Jeffrey Epstein a slap on the wrist. They caught the most prolific child molester in the history of this country and gave him a slap on the wrist. And the plea agreement that they reached with him, the non-prosecution agreement was one of the most corrupt documents that I have ever seen in my life. And they handed that out, you know, why? Because, well, he just knows a bunch of famous people and some of them are on his plane to his private island. So can you redeem an agency like that? I'm not sure. My friend, Scott Thompson, who was former chief of the Camden County Police Department, which was understood to be one of the most corrupt police departments in the country, he was promoted to chief and what he did was he fired everybody and then made everybody reapply for their jobs. He only took the ones that he had confidence on and he turned that police department around from being one of the most corrupt in the country to being one of the most laudable and honorable and respectable departments in the country. Is that possible with the FBI and the Department of Justice? Could you fire everybody, in effect, fire everybody in both of those organizations and force people to reapply for their jobs? No, you could not. Would it require that level, you know, an effort of that magnitude in order to sufficiently clean house? Yeah, probably would. So there's a thing you could do and it probably cannot be done. I think it's worth adding watching, you know, Trump, you go through his list of grievances, his Festivus list there for a minute. He's absolutely right about all of that and of course it's larded in with a bunch of bullshit and things like that. I'm looking at that and the one thing I want to say, Zach and Clark is, you know what? At least we can say libertarians are not to blame for this. Libertarians routinely get blamed for, you know, moral breakdown because, you know, people smoke weed now instead of drinking themselves to cirrhosis, you know, where we don't care about kids, we don't do this or we're irrelevant, blah, blah, blah. But it's like the one thing that is good to say is that a libertarian perspective on the size, scope and spending of government, the role of it and whatnot, you would not lead to this kind of outcome where you have two equal and opposite forces, you know, that command fewer and fewer adherents from the American population of Republicans and Democrats. These are two parties that have been around since the before the Civil War and they are locked, you know, like Professor Moriarty and Sherlock Holmes in a death embrace constantly falling over Reichenbach's falls and neither of them can get to that place that I think Clark is talking about where you say, you know what, in the interest of the country, in the interest of something other than the most base and banal and vulgar self-interest that I need to win the next news cycle or the next election, I am actually gonna do the right thing and start to reform a government, you know, that has single digit ratings and increasing aspects of it, you know, Congress, you know, however much we hate the president, you know, Congress is lucky when it gets out of, it gets into double digits and approval ratings and it's because of this self-interested self-dealing where it's like the other person does worse or if you think, I'm bad, wait until the next person gets elected. That is, you know, in a way, I think we might be able to use this indictment drama and I, you know, I think Trump is guilty. I think he's wrong the way he acted is wrong and that should be changed, but what we need to take away from this is a way to actually create a different system and a different framework that does not just say, you know what, you know, it puts the American electorate in the role of, you know, of little kids watching their parents beat each other. There are no cops that are coming like this. We need to be removed from this kind of spectacle and put into a different situation altogether or create that situation. The problem, one of the problems is how to get there because right now we, it seems to be that, it seems like we're caught in a vicious cycle to some degree and you see this in kind of- It's a dialectic with no possibility of synthesis. Exactly, and you see this in countries that have high levels of corruption where all, if all the top officials are constantly either breaking the law or at least kind of pushing the boundaries of legal behavior, then their political opponents come in and they kind of with some justification take them down legally and then it flips back the other way. And we're, you know, we've seen it, the pendulum kind of already swinging back and forth from Clinton to Trump. And now in the Republic, in the just yesterday, the Republicans in the Senate have announced that they're, you know, they have these documents that may or may not prove that Biden was involved with Ukraine and some sort of bribery scheme. And so you can see this back and forth pendulum swing in motion and what, you know, I'd like to see libertarians somehow disrupt that, but I'm not sure, you know, what the next steps are in order to stop that pendulum swing. Can we run the Vivek Ramaswamy clip? He has an idea. This is my commitment on January 20th, 2025. If I'm elected the next US president to pardon Donald J. Trump for these offenses in this federal case, and I have challenged, I have demanded that every other candidate in this race either sign this commitment to pardon on January 20th, 2025 or else to explain why they are not. So yeah, pardon, so obviously played a role in presidential crimes in the past. What role do you think they will play, if any, in this situation? Well, this is now we're really in the out beyond what anybody can predict here in the Twilight Zone. So there are two possibilities besides, I would say that, you know, Vivek, pardoning a president is outside the realm of possibility since he won't be president, but I would not rule out the possibility that Biden pardons Trump. I don't think it's likely. Maybe it's something on the order of one in 10 or one in 20. But you could imagine Biden essentially treating this as an act of statesmanship, the way Nixon, Ford did with Nixon. And then there will be the subtext, right? Because everybody knows that the preferred candidate for the Democrats in the next election is Trump. They want Trump to run. And if they thought that this would enable him to stay in the race and get the nomination, you could see that sort of checking a couple of boxes for them. Again, I don't think it's likely, but I think I wouldn't rule it out. The other, even more sort of a science fiction question is could Trump pardon himself if he were to somehow be elected? If he's not yet been convicted by the time he gets to be elected president and inaugurated, if that were to happen, he could just order the Department of Justice to terminate the investigation. But if he had been convicted, but somehow still manages to win the presidency, then the question is, can he pardon himself? And guess what? We don't know the answer to that question. Thank goodness it's never come up in real life, but having kind of poured over the relevant language just the other day, I think it's within the realm of possibility and not a completely preposterous reading of the relevant constitutional language. And I don't even know what's gonna happen if we get to that point. And I just think we're gonna, well, we'll be tapping the strategic cynicism reserves of the entire country at that point. So hopefully it won't come to that. And to clarify, if Trump is under indictment or is even found guilty, there is no reason to believe that would mean he can't run for president. No, no, there's no disability, running for president or holding the office. There are some crimes and there's a provision in the 14th amendment that says, you know, committed a rebellion against the United States or treason, then you can be ineligible. But even that, there's a loophole there because it says you're ineligible for any office under the United States. And one argument is that the president is not under the United States. The president is at the apex of the United States and not subject to that language. So I don't think there's any short of being impeached and removed from office if he manages to win the election. I don't think there's any legal mechanism for preventing Trump from both either running or holding office. As a matter of kind of historical analysis, Gerald Ford, you mentioned, and it's always widely been question, did he agree as a condition of becoming Nixon's vice president, did he agree to pardon him if that became necessary or not? But beyond that, Gerald Ford famously pardoned Nixon and said, our long national nightmare is over, which was this idea of having a president who might be a criminal at the highest level of trying to kind of run a secret government. Do you think that Ford's pardon of Nixon had that effect of ending a national nightmare? On balance, did it help us get to the next stage or was it actually the type of bad papering over of something without actually dealing with the root causes? It kind of like scabbed over an infection that was going to erupt later. What a great question. I'm not enough of a historian to know. I was very young at the time and I don't really have any contemporaneous recollection. So what makes me, the first thing that popped into my head was the stimulus payments after the 2008 downturn. Some people think that saved the economy. Some people think that it was unnecessary and simply propped up a rotten banking system and set the stage for the inflation that we have now. I don't know if the answer to that either. My gut, I suppose tells me that it would be easy to minimize the magnitude of what was happening at the time when Ford was presenting with this question of whether to pardon Nixon and sort of project backwards that we would have made it through if he hadn't done it. I think the best of all possible worlds would be if he hadn't done it. It had not established this norm of essentially giving presidents who commit serious crimes in office a free pass. But it's also possible that the alternative would have been worse. I just don't know. Can we look at the Spiro Agnew clip, Zach? Because this is another variation on this theme of like, we, you know, and I think it's attractive on some level, like this is a dark moment and a dangerous moment. We need to figure out a way to get past it. One of the things that is funny about this clip, which was Rachel Maddow talking to Laurence O'Donnell on MSNBC, kind of just sky larking or, you know, floating a trial balloon of a way where, hey, maybe we can get around this. And, you know, we will, you know, that's all in ironic quotes and stuff. But let's watch this clip and then discuss it. With Spiro Agnew, you get a 40-count federal indictment that is brought against him, not related to Watergate, but because of crimes that he was committing in his own office in the White House. And in that case, what the Justice Department bravely and nimbly and controversially brokered with him is that that indictment would essentially go poof in exchange for him agreeing to get out of the White House. And so that delicate balance between needing a political solution to the criminal in the White House and needing a criminal solution, a criminal law solution to the criminal in the White House is one that 50 years ago, this year, in 1973, we dealt with, in 1972, we dealt with with Spiro Agnew. You have to wonder if the Justice Department is considering whether there is some political solution to this criminal problem, whether part of the issue here is not just that Trump has committed crimes, but that Trump has committed crimes and plans on being back in the White House. Do they consider, as part of a potential plea offer, something that would proscribe him from running for office again? I don't know. I would imagine, if anything like that happened, that it would have to come from the defense side of the negotiation, that the Trump team would say, oh, by the way, and with this, we will also drop out of the race for president. Otherwise, it would put the Justice Department in this position that Donald Trump claims they're in. He claims they're trying to stop him, simply trying to stop him from becoming president again, and that's the only reason they're doing this. And I'll just, to give a quick recap of people, Spiro Agnew was Richard Nixon's laughable vice president, a former governor of Maryland, who it was found out after he was a vice president that he had been taking bribes as governor of Maryland, which he continued while vice president. He was a Greek American. He was famously the first big Greek politician, and perhaps most memorably, his name is a palindrome for grower penis, but he left office, which is one of the reasons why Gerald Ford was in the mix to become vice president who effectively pardon Nixon. But what do you think of that? Because people, one of the things that is happening now, and I think rightly, and certainly Donald Trump says this, is that we're entering a banana republic phase where each success of president can threaten their predecessor with being put in jail or having all kinds of conditions put on their continued citizenship and whatnot. You have now, people on MSNBC, particularly people like Rachel Maddow, we're saying the problem with Trump is that he is the destroyer of norms. He has his steak cooked well, and he eats it with ketchup. He's like a horrible human being. He's an oaf, an ogre, a bull in a china shop, et cetera. But there you have people like that actually floating an idea where, if you read about this in Chile after Pinochet, you would be like, what the fuck is going on here? This is the quintessence of like a banana republic, and it's being talked about seriously on major media. Yeah, the problem as I see it is that to go back to something we discussed before, excuse me, we just, we haven't had a conversation. We haven't had an explicit conversation about the nature of the free pass that high ranking politicians are going to get. They're definitely going to get some kind of a free pass. We haven't really had a candid discussion about sort of what it looks like. We just know that they get one. And so that leaves a room for somebody like Trump to say, well, wait a minute, Hillary Clinton is a corrupt criminal flaunter of norms who put national security at significant risk by setting up this Betty Crocker server in her house. Like why am I getting prosecuted? That's not a completely unreasonable position to take. Now, part of what I think would come up if we had this very sort of unseemly discussion about why high ranking politicians get a free pass that the rest of us don't. And what the shape of that pass is, for example, Hillary, I don't think Hillary Clinton is any less corrupt than Donald Trump is. She might even be more corrupt, but I think she's less dangerous. I think she's less irresponsible. I think she sort of understands institutional norms and the importance of things like cozying up, not cozying up to dictators like Kim Jong-un. So in some sense, you could make a case that she should get a bigger and more durable free pass than Donald Trump. And you wouldn't be crazy, but like, can you imagine? I can't imagine ever having that discussion explicitly. And so this heuristic, this formula is just out there somewhere in the ether. We've never really tried to work it through or conflictize it, and yet it's there. And the sort of seeming inexplicability of why Hillary Clinton gets a free pass but Donald Trump doesn't get a free pass is going to be a source of conflict and grievance because we can't have an honest discussion about who gets free passes and why. Are there any structural or institutional reforms that would help with this problem? I mean, we had your Kato colleague, Ian Vasquez on here a while ago talking about the decline in human freedom around the world, particularly post pandemic. And a lot of that has to do with institutional decline and rise in corruption specifically here in the United States. Are there, is there anything, that's where I think, libertarians tend to bring a stronger analysis is looking at the institutions and the structures. Is there anything there that could help stop this slide towards the Banana Republic, if that's how we're putting it? Or is this really ultimately a political problem? So the answer can't be saved. Can we redeem the institutions? I don't know, but yes, there is something that can be done and Nick kind of alluded to it earlier. Put a fire in the belly libertarian in charge of the Department of Justice and give them, in effect, a free, give them full authority to enforce all the laws against whoever breaks them. And you will see a rapid change in behavior because if I, for example, were that Attorney General, I would create a whole new unit within the Department of Justice to make sure that we have completely revoked the free passes that high-ranking politicians currently enjoy and make sure that they understand that those free passes have been revoked and that they themselves will receive at least as much attention from the Department of Justice as for example, intercity drug dealers have been receiving. And for however long, I don't know how long it would be before that Attorney General will be impeached, probably a matter of weeks instead of months. I think we're talking minutes, but yes. Hopefully they get weeks, yeah. But I sort of fantasize about the idea of maybe bringing a Jason Voorhees hockey mask into the office on the first day of the job, the way that Elon Musk brought whatever it was, a toilet, just to convey to the people. The kitchen sink, kitchen sink. Right, yeah, it must be. Later used as a toilet, I'm sure. So I'm being a little bit flippant, but I do think that if it were possible to have the Attorney General of the United States not be a member of either tribe, neither team blue nor team red, but somebody who does not have that political affiliation and has a commitment to even handedly enforcing the law, not just sort of saying that, which they all understand they're supposed to say it, but actually doing it and revoking the kinds of free passes that we saw handed out to Hillary Clinton and arguably Mike Pence and at least so far Hunter Biden and just saying, look, I don't care, I don't care what office you hold or who you're related to, you're gonna be held to the same standard as all the muggles out there. I think that would be progress. It might burn the whole thing down, but at least it would I think sort of lance the boil of this cynicism, this anger and frustration that people have that it's only people on my team who are getting singled out for bad treatment and not people on the other team. That's not true, but you're not crazy if you have that impression. Yeah, and I want to stress that a lot of people are now are not a lot of people in the commentary that are like, oh, Americans are too cynical, they're nihilistic, et cetera. We have every reason to be. We have been incredibly patient and diligent in hoping for the best over the entire time. I'm turning 60 in August. My entire life, conscious years from starting in the early 70s through the current moment, it has been an unrelieved landscape of government lying to you and then saying, yeah, we got it, we got it, we're gonna fix it and then lying some more. And whether it was Watergate, first Vietnam, then Watergate, then the church commission talking about how the NSA and the CIA and the FBI were just surveilling everybody regardless of the law. Okay, that's good. I ran contrary, it goes on and on and on and finally with between Chelsea Manning and people like Edward Snowden and even people like Reality Winner and whatnot. We have been fed lies, we give politicians every opportunity to act well and they don't. So we are right to be chasen by this and to be very cynical. I guess a question for you guys that I have as libertarians, so you're already skeptical of government power, but you're not, you are idealist as well. You're not like hardcore cynics and you're not looking for a way to work the scam to your own advantage. Is there a generational component to this? And the one thing that is good is that gerontocracy is looking worse and worse with every passing year that 80 year olds keep holding power and exercising more and more power. Is there anything in the millennial or Gen Z generational kind of cast of characters that is rising that gives you hope that the next generation which is starting to ascend into positions of power in terms of political power, economic power, cultural power, are they working from a different script or have they learned the lesson of the past 50 years which is that, do unto others then split kind of applied to politics. Zach, do you wanna go first? Yeah, I guess as the elder millennial on the show, I'll say that I think that millennial politics I think were largely, and I'll just speaking for myself here shaped by the post 9-11 experience and that engendered a lot of skepticism of the national security state and kind of overseas commitments. And to that regard, Trump was kind of a new sort of candidate he's a boomer but he called out the mistakes of the Iraq war on stage in South Carolina in front of the GOP audience. And so, but then if you look at the younger generation whether they're on the right or the left, they also tend to be in that mold more skeptical of intervention. There's also a skepticism of, I think Wall Street given that we're going out into the job market during the first financial collapse. So I think that is the, those are some of the defining features of like that next generation of politicians on the left and right and perhaps that skepticism could be leveraged to restrain power. My worry is that it is going, that some of the ire and some of that energy is just gonna be harnessed to go after the wrong targets, whether on the left that is demonizing actually left and populist left and right kind of demonizing corporations now rather than the state machinery that is the real problem. That sounds right to me. I guess I would add one more thing that gives me sort of a sort of an unsettling sense of optimism which is that the two major political parties seem to be engaged in a contest to see which one can destroy their brand first. They're both taking a wrecking ball to the edifice of sort of their own political power by just demonstrating over and over and over again why they don't merit the trust, confidence or support of anybody and competing with one another to sort of be the most preposterous caricature of themselves that they can. And so to the extent they're successful and I'm talking about the Democratic Party and the Republican Party of actually self-sabotaging and burning to the ground the edifice that they have constructed over the last however many generations, then that could open up some space for new alliances and new organizations of power that wouldn't have been possible before. It's almost the extension of the dinosaurs may enable a new ecological niche for the unaffiliated mammals of the political life. And do I know that's gonna happen? No, but it certainly seems as if we could be headed in that direction, which I think is a silver lining for the culture wars that we see unfolding today. Yeah, I hope you guys are right. I mean, what worries me is that and obviously Matt Welch and I wrote a book about the decline in belief in or even identification with the Republican and Democratic parties, the Declaration of Independence a decade ago. It's kind of like, so Ford and GM built shittier and shittier cars, and by the 70s they had to compete against new brands that were coming in from overseas that were smaller, lighter, better at getting people around safely and at a good price point. It's almost as if though we're in the 1970s and Ford and GM are still putting out the Pinto and the Vega but they've managed to completely protect themselves from any imports. It seems so hard in the political arena for that third term whether it's the libertarian party and whatever they're up to or the green party or anything else like the ability for new entrance to seriously enter the marketplace of politics seems very difficult. But more to the point and Zach I, you know I think we're going a little bit off script here but I'm curious if, you know are the younger kind of rising members of Congress and I don't know that they'll be around for the long haul but you take somebody like a Marjorie Taylor Greene on the one hand who seems to have she's grown up in a world of failed government and conspiracies and she just wants to control it to her own weird ends on the one hand from a kind of conservative right wing position and then you have people like AOC, Alexandria Ocasio-Cortez who is like we can get the right people in place and shove our version of the good life down everybody's throat, you know in the economy, in the culture, you know in foreign policy, whatever that means and I worry that generational change is not enough. I mean it's coming whether, you know boomers like me like it or not it is absolutely coming but it might not be sufficient to to actually change things it might just make it, you know people with more vitality doing this. Oh, I definitely agree that it's not sufficient what needs to happen is that someone, you know harness the energy and focus it on the right problems these structural problems that we're talking about whether it's corruption in government or just out of control police powers that are completely unaccountable these are, to this point there has not been that kind of transformative figure or beacon who, you know clearly articulates that on the political stage at least, you know maybe that type of figure will emerge at some point but yeah, I agree it there it's a change in the demographics is not going to be enough it's got to be a change in the vision and hopefully it happens before the slide is to goes too deep. Yeah, where I mean we're starting to look more I could bring it back to Banana Republic we're looking more and more like Venezuela or Cuba where, you know, you meet the same boss or meet the new boss a little bit younger but pretty much like the old boss, right? These regimes keep going. Clark, can I ask you and what would it take to get you to leave, you know, Cato and become the independent attorney general of the United States? Is it free parking? Is it, you know, is it a better vacation policy? I think it would just be a matter of leave of absence for however long was necessary for me to appear at my confirmation hearing which I would hope would be kind of a pay-per-view event because let me tell you, it would be fun and funny for probably about 20 minutes until the big shepherd's crook came out and I got pulled off the chair there's not the slightest possibility that I could be confirmed to any, you know, position like that at this point but the confirmation hearing would be a barrel of laughs Can I ask, you cast the kind of dark shadow on criminal justice reform which is something that the libertarian movement more broadly, I know reason and it's very early issues was talking about how the fact that we are overpoliced in terms of there are just too many laws covering too many activities that should not be illegal Cato has been doing that for decades, you yourself you kind of were arguing or hinting that there really isn't much progress being made or, you know, or that can be made. Is it really that dark or is, you know, is that kind of an overstatement? Aren't we in a better place even if our politics are kind of a shambles and things like that? Are we in a better place in terms of the number of people who are being subjected either to the carceral state or just the kind of judicial legal surveillance state? No, I don't think we're in a better place. Some of the numbers look better but the culture of American criminal justice is just absolutely horrifying in the sense that you may remember this famous quote where Leverenty Beria, who is Stalin's chief of secret police said to Stalin you show me the man and I will show you the crime. We absolutely have that now. We have a plea driven system of mass adjudication where we have really basically a point and convict approach to criminal adjudication because of the high tolerance for nakedly coercive plea bargaining that the judiciary tolerates and that prosecutors embrace. And so the only real limit on the government's ability to put people in prison is kind of a combination of resources. And I would say some high level kind of political sense that some people can go in and some can't. If you're selling drugs at the dormitories of Harvard you're probably pretty safe but not if you're on the streets of Baltimore. So no, I don't think we're better off. Unfortunately, I think it's a very, I've written a piece that I say that our criminal justice system is rotten to the core. I believe that to be true. It has three basic pathologies, over criminalization, plea driven mass adjudication and near zero accountability for members of law enforcement and no system that features all three of those pathologies. I think merits the trust, confidence and support of people. Now it can be redeemed. What you have to do is this. You have to stop treating those pathologies as the metaphorical equivalent of a bad case of the flu or perhaps pneumonia and prescribing things like Advil and antibiotics metaphorically. You have to face it and treat it for what it is which is an incredibly aggressive metastasizing cancer that can only be treated with a very aggressive course of chemotherapy and other fairly toxic therapies. But if you try anything less, then you will fail. And that's basically why we haven't made meaningful progress on criminal justice reform because everybody treats the pathologies and criminal justice as something along the lines of a flu when in fact it's a stage four cancer. What are the types of policy reforms that would take us from Advil to an anti-cancer drug? Well, one would be we call it the trial lottery. And so what we could do is we could take some random sample of cases where a plea agreement has been reached but not yet entered and send those cases to trial just to see what the outcome would be. Right now prosecutors will tell you and judges seem to believe that virtually everybody who pleads guilty is in fact guilty and would have been convicted having gone to trial. There is a compelling empirical evidence to suggest that's not true and most criminal offense attorneys that I've spoken with estimate that somewhere between 20 and 50% of cases would result in either an outright acquittal or at least a home jury if they went to trial. If we were to undertake that simple experiment which we could do tomorrow, that would significantly undermine both the rationale and the edifice of what I've called the plea-driven system of mass adjudication that is the very lifeblood and motor oil of the American criminal justice system. And I think a lot of things would just fall apart at that point we would go back to having constitutionally prescribed jury trials as the default mechanism for adjudicating charges and the landscape would look completely differently. Among other things, the government wouldn't have the resources to pursue as many prosecutions as it does now. And so it would start leaving some people alone. 80% of arrests these days are for misdemeanors. 12 million arrests a year, 80% for misdemeanors at the same time that we have 50% of homicides go unsolved and more than 50% of other violent crimes. What if the whole law enforcement apparatus refocused itself on actual criminals like murderers and armed robbers and left people alone for things like drug possession? I think something like what I just described could actually be the key for getting to that new reality. Can I ask very quickly, I mean, part of the discourse on crime and this is both totally consistent with how we started this conversation and drifting far afield. But one of the arguments about the decline and kind of social order in cities, places like DC, New York, Philadelphia, San Francisco, LA is that the cops are now treating many lower level crimes as if they don't matter shoplifting, for instance, public vagrancy, intoxication and things like that. How does that play into your idea that what the cops really need to be do is focusing on dangerous criminals? Yeah, so it's important not to look at that in sort of through blinders, right? Because police are not only unserious about quality of life crimes like vagrancy and sort of public urination and defecation. They're unserious about other crimes as well. They don't want you to think that, but they are. That's why we have thousands of untested rape kits on the shelves in many police departments. That's why nearly half of all murderers go unsolved. And so the problem I think is not that police have singled out the subset of crimes to be unserious about. It's just a further signal that they are unserious and ill-equipped for enforcing laws that actually protect the fabric of civil society. Most of the behavior that you just described with the possible exception of shoplifting or at least actual professional shoplifting rings are probably better addressed through other mechanisms than the criminal justice system. Vagrancy, open-air drug use, things like that. You're not going to stamp that out just by increasing the aggressiveness of enforcement. And we don't know for sure, but I think the facts tend to bear this out. Chesa Boudin, who's a famous progressive prosecutor in San Francisco, was ousted more than a year ago and a law and order prosecutor was put in his place. And guess what? Violent crime has gone up in San Francisco. So whatever the code is, we haven't cracked it, but just throwing monikers around and condemning people for being progressive prosecutors, that's not really where the action is. I think the pathologies and the social disintegration goes much deeper. And look, the criminal justice system is not a Swiss army knife. We use it like one, but it's not. And it has a very narrow and specific function or it should. And using it for anything, and which is by the way to remove genuinely anti-social people from society and discourage others from behaving likewise, but to use it for all the things that we use it for, for issues of poverty and mental illness and substance abuse, et cetera. It's a mismatch between the tool, which is only good for a couple of things and the problems which are myriad. And we try to use the wrong tool for all those problems. So that's why it's been a disaster in my estimation. Before we turn it back to Zach for a final question, can I just very quickly, Clark, ask you, what's your theory of social change? Is it, you know, because a lot of the work that you do and a lot of the work that Cato does and other people, I mean, it's to bring, you know, kind of the way that things are to public light. I mean, is the theory of social change that you unveil, expose, reveal how things are and why they're bad and then the people rise up and demand better, you know, through elected officials, through social change, things like that. Or is it more of you, you know, what we really need to do is to be speaking to people who are elite positions, particularly in political power or economic power to change the laws. Could you talk a little bit about that as it relates particularly to things like criminal justice reform? Yeah, yeah. I mean, I feel like I might be about to step outside my lane a little bit. I appreciate you indulging me, but let me just say like I am not, that's not my thing. I'm a constitutional lawyer with a strong interest in criminal justice reform, but I will say this. I do think that the evidence is quite compelling that individuals who grow up in what we used to call a broken home. So, you know, maybe a single, somewhat dysfunctional parent, for example, they only have access to schools that, you know, clearly are not getting the job done, et cetera. Their prospects of kind of, you know, integrating into society and being a productive member of society are fairly low. And so I think ultimately the problem starts, and this may seem like a cliche, but the problem is at home. Children need to grow up in a loving and supportive environment at home and also within the context of a community that has norms and that has healthy norms where they are inculcated into people at a relatively early age. And so they don't steal, not because they're afraid of being punished, they don't steal because it's wrong, for example. And I don't know how to accomplish that, but my gut is that if we don't fix that, if we don't create a situation where most children grow up in a loving and supportive home, in a community that has the right kind of norms that are instilled at a young age, everything else is just a band-aid. Maybe I'm right, maybe I'm wrong, that's my gut. To wrap this up, let's talk about Trump's, how Trump is likely to fare and how he should fare, ideally, in this criminal justice system that you've described as pathological. This is a list of some of the potential prison terms that he could face, the maximum term of imprisonment, 10 years, 20 years, 20 years. There is no mandatory minimum of imprisonment for any of these listed charges. How likely is it that Trump will go to prison and as a follow-up, after that, should Trump go to prison? Well, the most important thing to keep in mind about that graphic that you just showed is that no one, not even Justice Department prosecutors, think that those are appropriate punishments for those crimes. No one goes to prison for 20 years for conspiracy to obstruct justice. Those are there in order to help prosecutors coerce people into pleading guilty. So they're essentially trying to jack up the possible max punishment so that they can offer you a generous discount from there. Just to give you an example, you may recall the Varsity Blues prosecution involving the Hollywood celebrities who got their kids in the schools. The standard plea offer in those cases was two months and then they were threatened that if they didn't take the two month plea offer, then they would get a superseding indictment that included a conspiracy to commit fraud charge with a 20 year max. Those figures are just there to coerce people into pleading guilty. That's the function they play in our system and everybody knows it. Not everybody admits it, but everybody knows it. Trump has been treated with kid gloves by and large so far in the system and you'll continue to be treated with kid gloves. Most defendants in his position would not have been released pre-trial. They would have been locked up. Most federal defendants are denied bail and locked up pre-trial. Again, largely for the unstated purpose of making them more amenable to pleading guilty. But Trump was allowed to go on his own reconnaissance. He wasn't even required to turn in any firearms, which is standard or have any, you don't have to report to a PO or anything like that. So he's been treated with kid gloves, even if he doesn't know it, he will continue to be treated with kid gloves throughout the process. He will get very careful attention, both at the trial court and the appellate court level for any motion that he makes and there will be a bunch. And the judge in his case, Eileen Cannon, who he appointed, that's not, there's nothing, I mean, that happens. You know, whatever we never had a president who's actually gone to trial in front of a judge that he's appointed. She actually has the power under rule 29 of the federal rules of criminal procedure to grant an acquittal at any time in the case. And if she does it after a jury has been impaneled, it will be unreviewable and unappealable. It will stand. Now, there's some chatter that the Department of Justice might have something in its back pocket, which is that Trump was not actually charged with the misconduct that occurred at Bedminster in New Jersey when he was, you know, handing around that document. So maybe they could get a second bite at the apple by bringing the charges there. The one thing I feel confident of is that anybody who thinks they know how this case is gonna play out is a fool. And I would love to be on the other side of that bet because there are a lot of dynamics of play that have never been seen before. Our system is complex, both as a sort of on paper, but also in terms of its norms. And there are just simply too many possibilities and too many forks in the road for anybody to predict how this case is going to unfold, except for, I would say, two things. Trump will continue to be treated with kid gloves by the Department of Justice and the judiciary so that we ordinary people don't get a good look at what it looks like when they really go after somebody and they really put the boots to a defendant, which is what they do in most cases. They wanna preserve the illusion that they wear the white hat, so they're not gonna do things like threaten his family members, which is perfectly permissible when you're trying to induce a plea, threaten to indict a family member, happens all the time. And the second thing I think is entirely predictable is that this case will not unfold the way that an ordinary case would. There are simply too many twists and turns. But it'll be incredibly entertaining, incredibly entertaining, whether that's good or bad, I don't know, but it's going to be on the level of sort of Greek tragedy in terms of its cultural significance. I'm thinking it's more like a mix of arrested development and VEEP at this point. Everything in politics is veering into a long-running series of... Maybe with a little bit of South Park. Maybe with a little bit of South Park. Hopefully, one can help. Do you think he can get a fair jury trial? Like selecting... I don't even know what the process for selecting a jury to put the president on trial would look like. Yeah, so yes and no. I think he can get people on the jury who will in fact do their best to render an appropriate verdict. In other words, they won't try to sneak on knowing that they already have a strong pre-conviction. What he won't get is a fair jury trial in the sense that juries today are carefully curated and the courts and prosecutors go to considerable lengths to exclude people from juries who understand what we call jury independence, which includes but is not limited to jury nullification. The idea, for example, that you may acquit a factually guilty defendant if, for example, you don't think they should have been prosecuted for that particular crime or the circumstances or there's been some kind of law enforcement abuse or for whatever, or they're being threatened with a massive trial penalty. Jury independence also includes things like, for example, not accepting as binding the judge's interpretation of the law. That's a relatively new feature of the American jury process and it's not something that goes back throughout antiquity. So will he get an impartial jury in the sense that it may include people who have some concept of jury independence? No, he will not because those people are assiduously identified and excluded from the process so that instead what you end up with is a jury of kind of trained circus seals who will embrace the false conception of the modern criminal jury as one that is only permitted to engage in fact-finding and then apply those facts to the law as given by the judge. That is a very new development in our system. It's a pathological development and it's nothing like the role of the jury throughout centuries of Anglo-American history, but it's the one that prosecutors and judges prefer because those kinds of juries, they would rather a kind of a pliant and obedient jury than one that thinks for itself. So that's the kind of jury Trump will get. Not an independent jury, but a sort of a circus seal jury, but in that regard, it's not likely to be singled out. That's what every dependent gets in the system. So call it what you want, but yes, he can get what now, put it this way. Can he get what passes for a fair trial by modern terms? Yes, he can. Yes, he can. Last question, what is the best outcome for people like us or people watching this who care about limited government, care about rule of law, care about the fidelity of our institutions? Is it Trump ending up behind bars? Is it some sort of plea deal being reached, him getting fined? Are there any good outcomes here for those of us who care about these things? No, but I think there are better and worse outcomes. So I think that the optimal outcome, as far as I can see, is that Trump gets as fair a process as is currently available under existing norms and it plays out and all of the relevant actors, including the prosecutors, the judge and Trump's defense team play it straight and Trump ends up convicted of at least some of the charges. If the evidence in court turns out to be as powerful as it looks like it will be. And then Trump, I don't think it would be helpful to see him go behind bar, but maybe he gets confined to the squalid environs of Mar-a-Lago for a year or something like that and he has to wear an ankle monitor and then you can just recede into obscurity for the rest of his life. I think that's probably an optimal outcome. Mark Neely, thank you very much for taking the time to speak with us today. And Nick, thank you for joining as always. Thank you to all who watched and we will be back in a couple of weeks, same time, Thursday, 1 p.m. See you then.