WEBVTT - Biden's Growing Classified Documents Dilemma 0:00:03.200 --> 0:00:07.960 This is Bloombird Law with June Brusso from Bloomberg Radio. 0:00:11.520 --> 0:00:14.640 I was briefed about this discovery and surprise and learned 0:00:14.960 --> 0:00:18.240 that there are any government records that were taken there 0:00:18.760 --> 0:00:22.400 to that office, but I don't know what's in the documents. 0:00:23.680 --> 0:00:27.520 The extraordinary circumstances here require the appointment of a special 0:00:27.520 --> 0:00:32.519 council for this matter. Those extraordinary circumstances began with President 0:00:32.560 --> 0:00:36.960 Biden's lawyers finding classified documents in his former office at 0:00:36.960 --> 0:00:41.120 a Washington think tank on November, two documents that should 0:00:41.120 --> 0:00:44.159 have been turned over to the National Archives. A second 0:00:44.159 --> 0:00:47.440 set of classified documents was found in the garage of 0:00:47.520 --> 0:00:52.680 his Wilmington's home on December and Biden's response was rather glib. 0:00:52.920 --> 0:00:55.880 But by the way, my corvette in the lack karage, Okay, 0:00:55.960 --> 0:00:57.600 so it's not like you're sitting out in the street. 0:00:57.760 --> 0:01:01.040 And as late as this Thursday, yet an another classified 0:01:01.080 --> 0:01:04.040 document was found in the library of his home. The 0:01:04.080 --> 0:01:08.080 initial investigation by the Justice Department has been ongoing since 0:01:08.120 --> 0:01:12.440 early November, when Attorney General Merrick Garland assigned John Laosch, 0:01:12.720 --> 0:01:15.720 the U S Attorney from Chicago and a Trump appointee, 0:01:15.959 --> 0:01:19.959 and laosh determined that further investigation by a special counsel 0:01:20.080 --> 0:01:23.480 was warranted, so, for the second time in two months, 0:01:23.800 --> 0:01:28.240 Garland appointed a special counsel to investigate the possible criminal 0:01:28.319 --> 0:01:33.240 mishandling of classified documents by a president. The document authorizes 0:01:33.319 --> 0:01:36.760 him to investigate whether any person or entity violated the 0:01:36.840 --> 0:01:39.880 law and connection with this matter. John her the former 0:01:39.959 --> 0:01:43.040 U S. Attorney from Maryland and also at Trump appointee, 0:01:43.360 --> 0:01:46.720 is the new special council. But White House Press Secretary 0:01:46.840 --> 0:01:50.560 Kareem Jean Pierre says his investigation will show that no 0:01:50.800 --> 0:01:55.200 crime was committed. We are confident that a thorough review 0:01:55.240 --> 0:01:59.920 will show that these documents were inadvertently misplaced, and the 0:02:00.040 --> 0:02:05.200 president and his lawyers acted promptly upon discovering of this mistake. 0:02:05.680 --> 0:02:09.120 My guess is national security expert Brad Moss, a partner 0:02:09.200 --> 0:02:13.120 Mark Zad Brad, what does the appointment of a special 0:02:13.160 --> 0:02:16.480 council here tell you about what the U S. Attorney 0:02:16.520 --> 0:02:20.920 for Chicago found in his investigation. So it's difficult to 0:02:21.440 --> 0:02:24.480 take too much from it, other than to say it 0:02:24.560 --> 0:02:27.800 appears more than likely there was a least enough evidence 0:02:27.960 --> 0:02:30.239 to raise concerns for the U. S. Attorney North The 0:02:30.320 --> 0:02:35.519 District of Illinois, regarding how the documents were originally stored 0:02:35.680 --> 0:02:39.560 in these different locations, and the extent to which efforts 0:02:39.560 --> 0:02:43.240 were never made to ensure that any government records in general, 0:02:43.280 --> 0:02:48.160 and particularly classified records, had been returned to the National Archives. 0:02:48.320 --> 0:02:52.200 That doesn't necessarily mean there is sufficient evidence to charge 0:02:52.200 --> 0:02:56.120 anyone with a crime. But given the political sensitivities of 0:02:56.160 --> 0:02:59.280 the issue, given that involves the current president and his 0:02:59.360 --> 0:03:02.720 staff of the ongoing Special Council probe in the former 0:03:02.720 --> 0:03:07.120 President Trump, it's not surprising that Attorney General Garland decided 0:03:07.160 --> 0:03:10.280 to appoint this new special Council specific to this issue. 0:03:10.520 --> 0:03:14.200 But this is a criminal investigation, and for criminal charges 0:03:14.560 --> 0:03:17.360 there has to be an intentional or a willful act. 0:03:17.440 --> 0:03:21.960 It's not just accidental mishandling of classified documents, you know, 0:03:22.360 --> 0:03:26.400 like sloppy housekeeping. So does that say that they're looking 0:03:26.440 --> 0:03:31.280 at something that was intentional rather than just inadvertent. It's 0:03:31.280 --> 0:03:33.520 tough to say. It makes me think there might be 0:03:33.560 --> 0:03:37.640 more to this than just accidental mishandling. I don't know 0:03:37.920 --> 0:03:41.280 who it would be by. I don't see any necessarily 0:03:41.320 --> 0:03:46.000 any indication that if there was intentional mishandling, or if 0:03:46.000 --> 0:03:49.320 there was any instruction that was done by Mr Biden 0:03:49.400 --> 0:03:51.840 as opposed to one of the staffers. We'll have to 0:03:51.920 --> 0:03:54.400 let the facts play out on that one, but I 0:03:54.440 --> 0:03:57.680 think this is a just parmament, particularly Attorney General Garland, 0:03:57.880 --> 0:04:02.720 just playing it extremely safe, recognizing the politics of the moment, 0:04:02.960 --> 0:04:06.480 recognizing that Donald Trump has already filed for a third 0:04:06.520 --> 0:04:09.120 bit for the White House, that President Biden is likely 0:04:09.160 --> 0:04:13.520 to file for his reelection, and that the nature of 0:04:13.560 --> 0:04:16.880 the moment requires pulling out all the stops, for lack 0:04:16.920 --> 0:04:19.760 of a better phrase, to protect the institutional integrity of 0:04:19.800 --> 0:04:23.600 the Justice Department. By no. He says he takes security seriously. 0:04:23.839 --> 0:04:27.640 But they've discovered documents in his old office, in his garage, 0:04:27.920 --> 0:04:31.719 and in the library, and that was just discovered on Thursday. 0:04:32.000 --> 0:04:34.000 I think it speaks to how even those who we 0:04:34.040 --> 0:04:37.920 assume are the more careful among us will make mistakes. 0:04:37.920 --> 0:04:40.120 And that's what needs to be discovered here is once 0:04:40.200 --> 0:04:43.359 this a set of mistake, was this loppiness by the 0:04:43.440 --> 0:04:47.280 staffers to put this together or was there something more nefarious? 0:04:47.400 --> 0:04:50.159 Was there a more deliberate intent by someone to remove 0:04:50.240 --> 0:04:53.560 these records to these locations, and was there any effort 0:04:53.640 --> 0:04:57.000 to conceal that from the government. That's what I think 0:04:57.000 --> 0:05:00.600 will be the distinguishing point between this simply being administrative 0:05:00.640 --> 0:05:03.880 flap on the wrist to somebody, as opposed to criminal charges. 0:05:04.000 --> 0:05:07.240 And that's what got Donald Trump in trouble was not 0:05:07.360 --> 0:05:10.680 the original mistake of the relocation of the records, but 0:05:10.800 --> 0:05:14.640 the obstruction and the concealment of those records. How are 0:05:14.800 --> 0:05:18.839 classified documents supposed to be handled should they even have 0:05:19.000 --> 0:05:22.200 been in the Vice President's office for any length of time? 0:05:22.680 --> 0:05:24.400 I mean, aren't they supposed to be handled in a 0:05:24.480 --> 0:05:29.040 special place? So yeah, so depending on the level of classification, 0:05:29.120 --> 0:05:32.040 there may be particular locations they're never supposed to be 0:05:32.040 --> 0:05:34.560 removed from. But let's be clear, Wow, Joe Biden was 0:05:34.720 --> 0:05:37.200 vice president, these materials would have no doubt been brought 0:05:37.240 --> 0:05:41.160 in by the relevant security officials as part of briefing materials, 0:05:41.200 --> 0:05:44.200 as part of information that they need to review in 0:05:44.279 --> 0:05:46.880 advance of certain meetings. That happens all the time. The 0:05:46.960 --> 0:05:49.600 question is who brought them there and why were they 0:05:49.680 --> 0:05:52.279 left behind? That can be done so long as it 0:05:52.360 --> 0:05:55.120 was in the proper location at the Vice President's residents 0:05:55.160 --> 0:05:57.360 But the issue of how did they wind up at 0:05:57.400 --> 0:06:00.960 the think tank is the unresolved question. It should never 0:06:01.000 --> 0:06:04.040 have gotten there in the first place. That is a problem. 0:06:04.040 --> 0:06:07.080 That is a breach of security. Whether or not there's 0:06:07.120 --> 0:06:09.800 any criminal liability is what does not appear to be 0:06:09.839 --> 0:06:12.440 lining up at the moment with respect to President buying 0:06:12.480 --> 0:06:15.640 because of the proper actions to it. Turning, this happened 0:06:15.640 --> 0:06:19.200 November two, so right before the mid terms. Shouldn't have 0:06:19.240 --> 0:06:22.400 been disclosed to the public at that point. There was 0:06:22.560 --> 0:06:25.840 no legal requirement for anyone to notify the public. Just 0:06:26.000 --> 0:06:29.880 Department certainly doesn't comment on ongoing investigation, so they weren't 0:06:29.920 --> 0:06:32.839 going to tell anybody. The National Archives didn't have any 0:06:32.880 --> 0:06:35.080 need to at the time because they had already referred 0:06:35.080 --> 0:06:37.240 things over the JUST Department, and the White House had 0:06:37.320 --> 0:06:40.080 no obvious desire to do so, nor were they required 0:06:40.120 --> 0:06:44.000 to do. And let's remember the ongoing saga at mar 0:06:44.160 --> 0:06:47.520 Lago went on for months and months behind the scenes, 0:06:47.880 --> 0:06:49.920 and no one in the public knew about it, because 0:06:49.920 --> 0:06:52.640 they're not supposed to be talking about that stuff publicly. 0:06:52.960 --> 0:06:56.040 We didn't know about the extended negotiations back and forth 0:06:56.279 --> 0:06:58.520 to get the initial back of documents or the grand 0:06:58.560 --> 0:07:02.200 jury subpoena that was enforced in June, there was a 0:07:02.279 --> 0:07:04.400 sworn declaration given. At the time, we didn't know anything 0:07:04.400 --> 0:07:07.240 about that until August, once there was finally a search 0:07:07.279 --> 0:07:11.360 warrant executed. That's when we learned all the details. And 0:07:11.400 --> 0:07:13.800 so there was no indications for the Just Department, who 0:07:13.800 --> 0:07:16.440 have publicly acknowledged that this was going on in the 0:07:16.520 --> 0:07:20.200 days leading up to mid terms, would have been political 0:07:20.200 --> 0:07:22.920 of interference by the d o J on behalf of 0:07:22.960 --> 0:07:26.080 the Republicans at that point. Do these incidents show that 0:07:26.120 --> 0:07:30.080 there needs to be some reckoning about how classified documents 0:07:30.080 --> 0:07:34.880 are being handled in general? So mishandling, the pure mishandling 0:07:34.880 --> 0:07:39.880 of classified documents happens sadly a lot. The question always 0:07:39.880 --> 0:07:43.240 from a criminal standpoint, and what the Just Department always 0:07:43.240 --> 0:07:47.760 considers is was this accidental or was this something with 0:07:47.840 --> 0:07:51.600 a measure of intent and or obstruction that would warrant 0:07:51.760 --> 0:07:56.080 actually pursuing a criminal prosecution. So for most people, the 0:07:56.120 --> 0:07:59.480 Just Department is happy to just let the administrative process 0:07:59.720 --> 0:08:02.680 play up. Security clearance gets a vote, person gets fired, 0:08:02.840 --> 0:08:06.040 something along those lines. Those aren't options obviously with someone 0:08:06.080 --> 0:08:08.520 like a Donald Trump or Joe Biden, because in their 0:08:08.600 --> 0:08:12.360 roles as constitutional officers their exempt from it. Donald Trump 0:08:12.480 --> 0:08:15.240 is now no longer even working for the federal government 0:08:15.280 --> 0:08:18.119 as president. He's a private citizen, so there's no administrative 0:08:18.120 --> 0:08:21.720 steps to take. It's either criminal or nothing. But by 0:08:21.760 --> 0:08:24.960 and large, with very rare exception, the Justice Departments does 0:08:25.000 --> 0:08:29.480 not prosecute accidental mishandling of class fan information. They prosecute 0:08:29.480 --> 0:08:31.920 if you're looking to sell it, if you're looking to 0:08:31.960 --> 0:08:34.880 actually use it as more forms of espionage. If you 0:08:35.040 --> 0:08:37.840 deliberately took documents and you're storing them for whatever purpose 0:08:37.880 --> 0:08:40.800 you want at home, those are reasons they would pursue 0:08:40.880 --> 0:08:44.120 a criminal prosecution, as well as if you obstructed any 0:08:44.160 --> 0:08:47.760 effort to recover them. So right now, the job of 0:08:47.840 --> 0:08:50.280 their special counsel pro to determine if there was any 0:08:50.360 --> 0:08:54.480 crime committed beyond the breach of security itself, if there's 0:08:54.480 --> 0:08:58.480 any particular criminal liability for anyone up to including obviously 0:08:58.559 --> 0:09:02.040 Joe Biden, though given that the current president, it's obviously 0:09:02.120 --> 0:09:04.840 d o J policy not to bring in indictment anyways. 0:09:04.920 --> 0:09:07.960 But were any of the stafforts that anybody commit a 0:09:08.040 --> 0:09:11.440 crime that needs to be prosecuted at this point, so 0:09:11.559 --> 0:09:15.640 what possible criminal liability is there? What statutes are involved. 0:09:16.000 --> 0:09:18.440 So you're gonna have some of the same legal provisions 0:09:18.480 --> 0:09:21.240 that are in play in the Marlagua saga. You're gonna 0:09:21.280 --> 0:09:25.240 have the Espionage Act provisions concerning the unauthorized retention of 0:09:25.360 --> 0:09:29.040 national defense information. You're gonna have issues of potential obstruction 0:09:29.200 --> 0:09:32.120 if there were efforts by whether it was Mr Biden 0:09:32.200 --> 0:09:35.640 or any of the staffers to conceal or obstruct efforts 0:09:35.720 --> 0:09:38.960 to recover these various records over the last six or 0:09:38.960 --> 0:09:41.400 seven years. We have seen no evidence of that yet, 0:09:41.440 --> 0:09:43.880 but that would be the type of statutory provision that 0:09:43.920 --> 0:09:47.520 would come into play if evidence along those lines is developed. 0:09:48.080 --> 0:09:52.680 Does taking this from an in house Justice Department investigation 0:09:53.200 --> 0:09:58.520 to a special council investigation escalate the inquiry? Special counsel 0:09:58.679 --> 0:10:03.240 don't always, but often do bring criminal charges. So what 0:10:03.400 --> 0:10:06.800 making it into a special council changes more than anything, 0:10:06.840 --> 0:10:10.800 in my view, is increases the likelihood of transparency, where 0:10:11.200 --> 0:10:14.000 usually if the U. S. Attorney is simply investigating it, 0:10:14.080 --> 0:10:17.160 if they choose not to bring charges, that's the end 0:10:17.160 --> 0:10:20.200 of it. There's no public report, there's nothing, They just 0:10:20.480 --> 0:10:22.760 end the investigation. A lot of times they won't even 0:10:22.800 --> 0:10:24.720 make much of a comment, if any, to the public 0:10:24.760 --> 0:10:29.600 about it with a special council. The regulations specifically anticipates 0:10:29.720 --> 0:10:33.240 that a report outlining the entire to the investigation will 0:10:33.280 --> 0:10:36.440 be compiled the presented to the Attorney General, and most 0:10:36.480 --> 0:10:41.240 likely Attorney General Garland would make that public for American 0:10:41.360 --> 0:10:44.680 voters to review and to take any consideration. So it 0:10:44.720 --> 0:10:46.880 doesn't change anything, is my view, in terms of the 0:10:46.960 --> 0:10:49.640 power of the Justice Department to bring charges. It doesn't 0:10:49.679 --> 0:10:52.040 make it necessarily more likely charges are going to be brought, 0:10:52.080 --> 0:10:56.760 but it ensures more transparently. Former President Trump, who has 0:10:56.800 --> 0:10:59.560 claimed that he declassified all the records found his home 0:11:00.040 --> 0:11:03.079 that providing any proof of that, said on his truth 0:11:03.160 --> 0:11:06.280 social account quote, when is the FBI going to raid 0:11:06.320 --> 0:11:09.480 the many homes of Joe Biden, perhaps even the White House? 0:11:09.840 --> 0:11:14.960 These documents were definitely not declassified. Donald Trump is making 0:11:15.000 --> 0:11:18.640 another rant, Like Donald Trump does, it means nothing. Look, 0:11:18.840 --> 0:11:22.600 if Joe Biden starts obstructing the investigation and submitting false 0:11:22.600 --> 0:11:25.600 statements to his lawyers, and the Just Department develops evidence 0:11:25.640 --> 0:11:29.520 that Joe Biden's team is concealing other records with classification 0:11:29.559 --> 0:11:32.400 markings at other facilities, then they can go to the 0:11:32.400 --> 0:11:34.400 magistrate and get a search warrant, just like they had 0:11:34.440 --> 0:11:36.960 to do with Marlaco. But that was an eighteen month 0:11:37.080 --> 0:11:41.640 process and the Trump team constantly obstructed that inquiry. There's 0:11:41.679 --> 0:11:44.720 no indication the Biden team has done anything similar. Not 0:11:44.840 --> 0:11:46.760 to mention this idea, are you going to raid the 0:11:46.800 --> 0:11:50.080 White House? The White House is a government facility authorized 0:11:50.120 --> 0:11:53.880 to hold those records, and Joe Biden, as the current president, 0:11:53.960 --> 0:11:56.400 can do whatever he wants with them, just like Donald 0:11:56.400 --> 0:11:59.400 Trump could do when he was the president. Does this 0:11:59.600 --> 0:12:07.000 second special counsel investigation complicate the investigation of Special Counsel 0:12:07.120 --> 0:12:11.440 Jack Smith of former President Trump and the decision by 0:12:11.480 --> 0:12:15.280 Smith and Garland whether to prosecute. I don't think it 0:12:15.280 --> 0:12:20.439 instily changes their legal calculus. It might alter their political 0:12:20.600 --> 0:12:24.040 calculus of it. If you're Jack Smith and you're compiling 0:12:24.520 --> 0:12:28.520 a potential indictment against the former president, you were already 0:12:28.559 --> 0:12:30.840 on high alert to make sure your case was tight 0:12:30.920 --> 0:12:34.600 in your facts were clean. Now you're gonna be even 0:12:34.679 --> 0:12:37.040 more so worried to make sure that there are no 0:12:37.160 --> 0:12:40.920 gaps in the evidence, that there are no witnesses whose 0:12:40.920 --> 0:12:44.080 credibility you can't be sure of. You're gonna be even 0:12:44.120 --> 0:12:46.720 more sensitive to that idea, because if you choose to 0:12:46.760 --> 0:12:50.160 bring an indictment and the special counsel inted Biden mess 0:12:50.240 --> 0:12:54.480 does not, there will be obvious political implications. And less 0:12:54.559 --> 0:12:58.360 we forget there are actually three special counsels at the 0:12:58.400 --> 0:13:02.640 same time. John d has been investigating potential misconduct in 0:13:02.640 --> 0:13:05.880 the Trump Russia probe for about four years, So the 0:13:06.000 --> 0:13:09.880 special counsel investigations can take on a life of their own. 0:13:10.280 --> 0:13:13.199 Thanks so much, Brad. That's Brad Moss of mark Z 0:13:13.800 --> 0:13:17.320 coming up next. The Supreme Court considers the attorney client 0:13:17.400 --> 0:13:20.920 privilege in a case with special importance for in house counsel. 0:13:21.160 --> 0:13:26.040 You're listening to Bloomberg, I'm wondering if you would just 0:13:26.080 --> 0:13:28.880 comment on, you know, the ancient legal principle of if 0:13:28.920 --> 0:13:32.160 if it ain't broke, don't fix it. There was laughter 0:13:32.240 --> 0:13:35.920 in the courtroom, as just as Elina Kagan suggested, there's 0:13:35.960 --> 0:13:39.480 no need to change the scope of the attorney client privilege, 0:13:39.559 --> 0:13:44.400 which protects the confidentiality of communications. The question that jostices 0:13:44.440 --> 0:13:48.640 are deciding is what tests should courts use when communications 0:13:48.640 --> 0:13:51.720 between a lawyer and a client involve both business and 0:13:51.880 --> 0:13:54.840 legal advice. I mean, we've had the attorney client privilege 0:13:54.880 --> 0:14:00.160 for a long time and until nobody ever uh and 0:14:00.200 --> 0:14:04.520 suggested that the test that you're proposing is the right one. 0:14:04.880 --> 0:14:09.480 Everybody instead used the primary purpose test. Should communications be 0:14:09.600 --> 0:14:13.520 protected only if the primary purpose was to obtain legal advice, 0:14:13.840 --> 0:14:17.559 or also if a significant purpose was to obtain legal advice. 0:14:17.920 --> 0:14:21.320 It sounds like semantics, and many of the justices seemed 0:14:21.360 --> 0:14:24.200 to agree with Justice Kagan that there's no need to 0:14:24.240 --> 0:14:27.800 fix what ain't broke. Here's Chief Justice John Roberts and 0:14:27.880 --> 0:14:31.200 Justice Ainy Coney Barrett to a certain extent. You know, 0:14:31.240 --> 0:14:36.800 I think we're talking about labels rather than analysis, because 0:14:36.840 --> 0:14:38.760 we can't really say tigeres to the runner right when 0:14:38.760 --> 0:14:41.520 the burden is on the person invoking the privilege. We 0:14:41.600 --> 0:14:44.040 can't get into this whole put a percentage on it 0:14:44.120 --> 0:14:46.080 for the reasons that we've already talked about, So maybe 0:14:46.080 --> 0:14:49.479 it's best to say nothing. Joining me is M. C. Sungaila, 0:14:49.680 --> 0:14:52.960 head of the appellate practice at buck Alter. This case 0:14:53.000 --> 0:14:56.560 involves a grand jury subpoena in connection with a criminal 0:14:56.600 --> 0:14:59.760 tax investigation, and the law firm and the client in 0:15:00.200 --> 0:15:04.040 the attorney client privileged to withhold documents, and the case 0:15:04.160 --> 0:15:06.560 is shrouded in mystery in a lot of ways. The 0:15:06.600 --> 0:15:10.080 petitioner isn't even named. Oh gosh, yes, Well, there's the 0:15:10.200 --> 0:15:13.000 mystery having to do with the parties and the fact 0:15:13.040 --> 0:15:16.360 what things are under seal and you know which law 0:15:16.440 --> 0:15:19.640 firms involved, in which companies involved. I think there was 0:15:19.720 --> 0:15:23.360 some reference in the government's briefs of the company involved 0:15:23.480 --> 0:15:28.280 with the privileges involved in the cryptocurrency or something like that. 0:15:28.440 --> 0:15:30.800 But yeah, there's a little bit of mysterious to the 0:15:30.840 --> 0:15:34.640 individual participants, but the larger she's not a mystery, and 0:15:34.720 --> 0:15:38.320 it's definitely one that is of interest, I would say, 0:15:38.400 --> 0:15:42.360 particularly to in house council who often are in the 0:15:42.400 --> 0:15:46.880 position where their communication could be seen as dual purpose. 0:15:47.120 --> 0:15:49.360 So the question here is what is the test to 0:15:49.440 --> 0:15:53.640 apply to communications that have both a legal purpose and 0:15:53.680 --> 0:15:57.800 a business purpose. And is the test the single primary 0:15:57.840 --> 0:16:01.360 purpose is legal and therefore it's subject to attorney client 0:16:01.920 --> 0:16:08.640 privilege or is it sufficient that a significant purpose is enough? 0:16:08.680 --> 0:16:11.920 So that's the question, I think, particularly given that there 0:16:11.960 --> 0:16:14.800 are so many circumstances, especially when you're talking about in 0:16:14.880 --> 0:16:20.240 house counsel in companies, they're often asked business strategy questions 0:16:20.240 --> 0:16:23.840 and legal strategy questions what are really Internet? And so 0:16:23.880 --> 0:16:26.280 they're paying a lot of attention to this case. So 0:16:26.480 --> 0:16:28.800 M see you filed an amigest brief on behalf of 0:16:28.800 --> 0:16:33.160 the Federation of Defense and Corporate Counsel supporting a broad 0:16:33.400 --> 0:16:37.240 application of the privilege. Is the concern that a narrower 0:16:37.320 --> 0:16:42.640 test might chill a client's communications with their attorney. Yeah, 0:16:42.680 --> 0:16:45.320 I mean you want people to be forthcoming so that 0:16:45.360 --> 0:16:47.800 you can give the best legal advice. You also, in 0:16:47.880 --> 0:16:51.080 the course of providing legal advice sometimes to me to 0:16:51.320 --> 0:16:55.240 get a lot of other personal information. So one of 0:16:55.280 --> 0:16:58.400 the examples that came up in the argument was, well, 0:16:58.920 --> 0:17:03.200 if you're asking for advice about property or the family 0:17:03.240 --> 0:17:06.280 home or something like that, and you need to get 0:17:06.400 --> 0:17:10.560 some evaluation information or factual information about the property in 0:17:10.680 --> 0:17:14.000 order to offer google advice about it, you want as 0:17:14.080 --> 0:17:16.959 much information as possible, and you want it as broad 0:17:17.080 --> 0:17:19.840 as possible in doing that, so you can get the 0:17:19.920 --> 0:17:22.560 full information you need to offer the best advice, and 0:17:22.640 --> 0:17:26.399 also can ask a lot of different factual questions that 0:17:26.480 --> 0:17:29.280 you need to render that advice. And sometimes two clients 0:17:29.320 --> 0:17:31.639 don't know they think there might be a legal issue, 0:17:31.680 --> 0:17:33.720 but they don't know, and they think they're asking a 0:17:33.760 --> 0:17:37.000 business question, but it's really also a legal question. So 0:17:37.040 --> 0:17:40.080 if you had this test of a single primary purpose 0:17:40.160 --> 0:17:43.960 being seeking legal advice that they might say, as a client, well, 0:17:43.960 --> 0:17:47.040 we didn't really know at the time we were asking questions, 0:17:47.040 --> 0:17:49.600 but it was actually legal advice that we really should 0:17:49.640 --> 0:17:53.400 be asking about. On the other side, the government argues 0:17:54.080 --> 0:17:58.120 that having that kind of a broad test would allow 0:17:58.760 --> 0:18:04.240 companies to shield documents about accounting and business development without 0:18:04.280 --> 0:18:08.480 a compelling justification. And in this case, the government says, 0:18:08.520 --> 0:18:12.600 the vast majority of the documents in dispute our communications 0:18:12.680 --> 0:18:16.200 between the client and a non lawyer accountant that was 0:18:16.280 --> 0:18:19.800 employed by the law firm to prepare tax returns. So 0:18:19.840 --> 0:18:23.800 the government says that the broader test the significant purpose 0:18:23.960 --> 0:18:27.240 is too broad. It's really interesting. There was a lot 0:18:27.280 --> 0:18:30.440 of stock and forth about what each side position was, 0:18:30.960 --> 0:18:35.000 whether there really was some, you know, significant disagreement by 0:18:35.000 --> 0:18:37.639 the parties about what the tests should in fact be. 0:18:38.280 --> 0:18:40.720 At one point Justice course that said, oh, I think 0:18:40.800 --> 0:18:45.760 both of you might be adjusting your definition of the 0:18:45.800 --> 0:18:49.439 test and might actually be coming to the same test, 0:18:49.560 --> 0:18:53.440 which is not primary purpose but a significant purpose. And 0:18:53.680 --> 0:18:56.240 you know, the government submurdered at one point somethw that 0:18:56.240 --> 0:18:58.440 that's not exactly what we're saying, but it didn't start 0:18:58.480 --> 0:19:00.760 to sound like it. But there were moved and goalposts 0:19:00.760 --> 0:19:04.040 from what you described as you know, the government's positions 0:19:04.080 --> 0:19:07.199 seemed to be moving a little bit scaring arguments. But 0:19:07.280 --> 0:19:10.320 they did state that concerned that, I guess, the improper 0:19:10.359 --> 0:19:13.400 invocation of the privilege or an effort to have everything 0:19:13.440 --> 0:19:16.199 covered by the privilege when it really shouldn't be. And 0:19:16.240 --> 0:19:19.080 they also talked about the specifics of this case, and 0:19:19.080 --> 0:19:21.440 so I think that's really two things at play here. 0:19:21.560 --> 0:19:24.240 One is the overall test which would apply while beyond 0:19:24.440 --> 0:19:27.320 this case, and that's of course at the free court level, 0:19:27.359 --> 0:19:30.120 with the justice is always remind everyone of. And they 0:19:30.160 --> 0:19:32.760 did an argument which was, yeah, yeah, we're very interested 0:19:33.080 --> 0:19:35.359 how this comes out in the particular case, but we're 0:19:35.359 --> 0:19:38.960 most interested in what's the test and why we should 0:19:39.359 --> 0:19:41.760 adopt a certain test, because that's the test is going 0:19:41.800 --> 0:19:44.439 to be applied across multiple cases, so we want to 0:19:44.480 --> 0:19:47.679 make sure it's workable. It seems pretty clear that the 0:19:47.760 --> 0:19:51.320 government was on one side and all the aniquest briefs 0:19:51.600 --> 0:19:54.320 were on the opposite side. From our perspective, from the 0:19:54.359 --> 0:19:57.440 perspective of the bar associations and the business organizations that 0:19:57.640 --> 0:20:00.399 files aniquest PAS in the case there's their cheene of 0:20:00.480 --> 0:20:04.159 those rates. You know, all of those amagists are aligned 0:20:04.280 --> 0:20:07.720 in having a concern about the test that the government 0:20:07.800 --> 0:20:11.280 is avocating for a single primary purpose test, because we 0:20:11.359 --> 0:20:14.800 want a practical, workable test that gives us some sense 0:20:14.960 --> 0:20:17.640 in advance of what would be subject to the privilege, 0:20:17.680 --> 0:20:21.000 and something that in retrospect also is more workable in 0:20:21.119 --> 0:20:25.439 terms of analyzing whether the privilege attaches, and something that 0:20:25.560 --> 0:20:29.880 also just reflects the practical realities of how legal advice 0:20:30.000 --> 0:20:33.040 is given, the circumstances under which is given, and just 0:20:33.320 --> 0:20:37.080 how things operate in the real world. And you know, frankly, 0:20:37.240 --> 0:20:40.000 it's really nice to be on the Supreme Court and 0:20:40.040 --> 0:20:42.359 to be in the position they're in. They don't have 0:20:42.400 --> 0:20:45.120 to deal with those realities. So, you know, we hope 0:20:45.160 --> 0:20:48.359 that the amagas greeps will help illuminate the practicalities of 0:20:48.400 --> 0:20:51.399 that and how the test will be applied. So it 0:20:51.440 --> 0:20:56.320 seems to be semantics the words significant and primary. It 0:20:56.359 --> 0:21:00.880 doesn't seem like there's that much difference between those. Yeah, 0:21:01.040 --> 0:21:03.600 not only some of the questions too, was how do 0:21:03.680 --> 0:21:06.959 you define these terms? So, assuming we adopt a significant 0:21:06.960 --> 0:21:10.040 purpose test, counsel, we do that mean to you? If 0:21:10.040 --> 0:21:11.840 we weren't to define it, we don't have to, But 0:21:11.920 --> 0:21:15.160 if we were, what would we say? And some of 0:21:15.200 --> 0:21:18.480 those answers seemed to really dug tail between the government 0:21:18.720 --> 0:21:23.320 and counsel seeking a broader privilege. So you say, hmmm. Ultimately, 0:21:23.640 --> 0:21:26.480 as discourse is pointed out, I wonder how much light 0:21:26.600 --> 0:21:30.640 there really is between the standards as applied that each 0:21:30.680 --> 0:21:34.120 side's arguing for. So it really was kind of interesting, 0:21:34.160 --> 0:21:35.840 and it did have you maybe stetching your head a 0:21:35.880 --> 0:21:38.600 little bit after argument. But maybe Justine course has had 0:21:38.640 --> 0:21:43.000 something There really isn't a significant you know, divide. So 0:21:43.000 --> 0:21:45.560 where do you think will come out? I mean, if 0:21:45.560 --> 0:21:49.560 you're just listening to the arguments and assuming that folks 0:21:49.600 --> 0:21:52.480 are gonna kind of stick to their guns, and where 0:21:52.480 --> 0:21:55.320 they seem to be mean during arguments, I would say, 0:21:55.640 --> 0:21:59.160 just this course, it's Justice Roberts and Justice Kavanaugh seemed, 0:21:59.480 --> 0:22:02.560 you know, more predisposed to the argument for a significant 0:22:02.560 --> 0:22:06.160 purpose test and something that gave more protection. The rest 0:22:06.200 --> 0:22:10.680 of the court had various degrees of concern or consternation 0:22:11.000 --> 0:22:14.520 about a test that was something different from the primary 0:22:14.560 --> 0:22:18.480 purpose test. So, yeah, it's looking like not great for 0:22:18.600 --> 0:22:22.440 this for the in house council. Is it possible to 0:22:22.520 --> 0:22:27.159 come out with a test that's really clear in this area? 0:22:27.320 --> 0:22:29.560 Is it possible that they come back and they don't 0:22:29.600 --> 0:22:33.720 have a clear test? Yeah? I mean that was one 0:22:33.720 --> 0:22:35.440 of the That was one of the things I thought 0:22:35.480 --> 0:22:39.760 that Justice very kind of floated at one point during argument, 0:22:39.800 --> 0:22:43.040 which was, well, if we can't really reach some kind 0:22:43.080 --> 0:22:46.240 of consensus on the court itself about how do we 0:22:46.359 --> 0:22:50.600 define a test and giving guidance about how to apply it, 0:22:51.320 --> 0:22:55.359 one suggestion she made was well, if we just basically 0:22:55.400 --> 0:22:58.520 say we adopt test X and then let it work 0:22:58.520 --> 0:23:01.960 out afterwards through the system, that might be one way, 0:23:02.040 --> 0:23:04.959 because I think she was reacting to the fact that 0:23:05.280 --> 0:23:07.879 they probably weren't going to get certain people, you know, 0:23:08.000 --> 0:23:12.080 on the court to agree to a particular outcome, so 0:23:12.200 --> 0:23:14.760 she was maybe testing the waters or what if we 0:23:14.840 --> 0:23:19.240 just said something very broad about which testfully adopt and 0:23:19.400 --> 0:23:21.920 that would define and I think, you know, the suggestion 0:23:22.000 --> 0:23:25.199 was if we adopt the primary purpose tests, then we 0:23:25.200 --> 0:23:28.760 wouldn't need to flush it out too much because there 0:23:28.760 --> 0:23:32.600 are state cases that interpret that and everybody could look 0:23:32.600 --> 0:23:36.000