Ep. 3: Elinor Colbourn - The Mckittrick memo

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If you want to learn more about the topics of

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today's episode, visit the podcast website at

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naturessecretservice .com. Thanks for listening.

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Okay, people, listen up. Here we go. This is

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Nature's Secret Service, the podcast that puts

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you in the room with the men and women of wildlife

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law enforcement. I'm Ed Newcomer, your host,

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and this is episode three of season three. where

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we're doing our deep dives on wolf reintroduction

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and the cases related to wolves. Last week, we

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heard from special agent Tim Eicher, who told

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us the fascinating case about the first wolf

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that was poached outside Yellowstone National

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Park after wolf reintroduction, with the poacher

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being a guy named Chad McKittrick. And today,

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I'm really happy to welcome one of my long time...

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collaborators and colleagues and friends from

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while I was a special agent. We are super lucky

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to have Eleanor Colborne with us. She is a former

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prosecutor for the U .S. Department of Justice.

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She was assigned for many years to the Environment

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and Natural Resources Division, ENRD, which handles

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a lot of fish and wildlife cases nationally.

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She is retired now, but she currently is an assistant

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attorney general for the state of Vermont. So

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now she's doing what I used to do. We even have

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more in common than we used to. Just as a little

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bit of background before I let Eleanor introduce

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herself and say hello, she was a huge help to

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me on a really annoying case I did that involved

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about 10 years of my work trying to chase this

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massive fish trafficker down. He ended up becoming

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a fugitive and honestly, I could not have caught

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him without Eleanor's help in pushing DOJ to

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move forward on the getting the warrants done

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and working on the extradition. I still owe her

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a Coke. I'm pretty sure I owe her a Coke. Anyway,

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Eleanor, welcome to the podcast. Thank you so

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much for being on. I really appreciate it. Thanks

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for having me. Yeah, it's good to see you again.

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We're going to have a good discussion today.

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I think you said your dogs might come in the

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room. That's fine. We love dogs on this podcast.

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I think they're out on the ground. Out in the

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woods. Okay, very good. The cat, however, is

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behind me. No, no, he left. He wasn't there.

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Okay, well, we love cats here too, so the cats

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are welcome. Hey, to refresh my memory, how long

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were you with the U .S. Department of Justice?

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About 34 years. 34 years. That is a huge milestone

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for public service. You know, that's a lot. That's

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your professional life, really. A long time.

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That's a long time. Were you with ENRD the whole

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time? I was. I started in the wildlife section

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on the civil side doing defensive work mostly.

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Okay. And then I did a detail in the appellate

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section for a while, which was fascinating. But

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I was not prepared to like spend the rest of

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my career mostly in the stacks of a library.

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No. Yeah, I like to interact with people and

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I like to argue in court. And I got to do some

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appellate arguments, but I was given a choice

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then of some different options. And I elected

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to ruin my career by accepting the position on

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the criminal side, then of the wildlife section.

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And then they moved three prosecutors and a supervisor

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from the wildlife section to the environmental

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crime section so that all the criminal prosecutors

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would be. together. But yeah, a friend and I

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were both sort of contemplating our next steps

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and we were both offered the opportunity to do

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the criminal work. And we had a discussion and

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we both assessed it the same way that moving

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to the criminal side was kind of a career planning

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ender because there isn't really, it doesn't

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translate. You can't really take that anywhere.

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It doesn't really build you up very well for

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the private sector except doing defense work,

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which you weren't really interested in. So he,

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for those reasons, he elected to stay on the

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civil side. And I decided I was tired of checking

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boxes and keeping my options open. It just sounded

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like so much fun. So I jumped and did not regret

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it. So it didn't ruin your career. You're just

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being sarcastic. It was my entire career. Yeah,

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I'd say just so my listeners who aren't lawyers

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know, when we talk about appellate work, we're

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talking about lawyers who primarily handle appeals

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to either state or federal courts of appeal,

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maybe the Supreme Court in the state or the US

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Supreme Court. And it is brutal because it's

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really all about a lot of legal research, a lot

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of legal writing and then maybe you get to do

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some oral arguments in front of a court. But

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that is not fun either, because it's not like

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you're doing a trial where you're presenting

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evidence and things can, you know, things are

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kind of on the move. It's you speaking in front

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of a bunch of very well -educated judges who

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think they're very smart, too, and they grill

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you. It's not fun. I never, I hated appellate

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work. It can be fun. Sort of like a Rubik's Cube,

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like you turn the arguments over and I remember

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one appeal that a friend of both of ours, John

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Webb, had handled the trial and gotten a conviction.

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And I started working on the appeal that she

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took from this conviction. And I went and was

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like, OK, so the evidence, John. And it was difficult.

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But I realized that the issue that she was talking

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about kind of wasn't wasn't the right one. And

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then if we looked at it a different way, we absolutely

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would win hands down, which we did. But it was

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it was one of those sort of aha moments where

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the theory had gone on down below. As an appellate

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attorney, you have more time to really figure

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it out, to really play with the arguments and

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twist that Rubik's Cube until everything clicks

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into place. And you turn it around and you see

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that there is no angle a judge can come at you,

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no question they can ask that you can't answer,

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that your argument isn't rock solid. It's the

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only possible outcome. And that's kind of a nice

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feeling when you get there. But there's so much

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grunt work that goes into that endpoint. Yeah.

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And okay, so this is actually the key point as

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to how we know that you are a much smarter lawyer

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than I was, Eleanor, because I can't do Rubik's

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Cubes. Neither can I. It's just a great example.

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It's what I imagine and feel like. Yeah. I'm

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telling you, man. It's not work I enjoyed. I

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didn't super enjoy being a prosecutor either,

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but I liked action and doing things and having

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to wing it sometimes. And appellate court is

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not like that. So I don't think you ruined your

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career at all by coming over to the criminal

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side, criminal prosecution side. So you enjoyed

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being an agent part the most. 100%. Once I made

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the transition from being a prosecutor to an

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agent where I'm the one who has to solve the

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crime and bring you something good, that's where

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I thrived. But like you, I moved to something

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I loved and I stopped worrying about my career.

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I stopped worrying about that. I just started

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worrying about what's going to be fun and what

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am I going to enjoy and what am I good at? Do

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something you enjoy and that you're good at.

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Yeah, yeah where you feel like you did anyway,

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right or you tried tried your best. I always

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tell people, you know You know, even if you think

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we're losing the fight to protect our planet

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I'd rather fight a worthy cause even if it's

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a lost cause right? So don't don't worry about

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just be positive we can win But if we can't win

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they still fought the good fight, right? Yeah,

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and you'd get those those moments like a lot

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of times it felt like playing whack -a -mole

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Yes, I know exactly I've described it that exact

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way But every once in a while, changes in the

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law came about because of a particular case,

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changes in the way things, something was regulated.

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And you could see kind of a whole industry shift.

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It was rare, like maybe two or three times in

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my whole career. And the rest of it was largely

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whack -a -mole. But those little things you cling

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to and you're like, it's possible to make a little

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difference. It's not a huge difference. You haven't

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changed the world, but you've changed one small

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piece of it. It is and with you know when it

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comes to wildlife and even you know One of the

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we haven't talked about this yet, but one of

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the things ENRD does is not just prosecute wildlife

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traffickers, but you deal with polluters and

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you know people that Degrade our waterways and

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oil oil spills all that kind of stuff But you

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know the whack -a -mole thing Eleanor think of

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it this way. This is how I thought of it when

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I was an agent. Yeah A lot of times it is whack

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-a -mole. Let's just say you go after parrot

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traffickers and you take out some of the major

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players and parrot traffic goes away for a while,

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but it comes back. Eventually somebody else will

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get into that niche. But the key is what you

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and I do in that interim, once we've whacked

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those key moles down and they're hidden, We give

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the animals, we give parrots that breathing space

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to breed in the wild and kind of recover their

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numbers. They're not under the pressure. And

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that's our job is, you know, we're not we're

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never going to eliminate poaching and trafficking

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and polluters and all of that. We just need to

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whack those, you know, violators down long enough

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and hard enough that we give wildlife a chance

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to recover and and, you know, thrive. And that's

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if we're doing that, we're doing our job. Think

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of it that way, right? I like that. I like that.

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Yeah, exactly. So briefly, last season we had

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three Assistant U .S. Attorneys on on the same

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episode. You know them all. We had Mark Williams,

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Dennis Mitchell, and Matt O 'Brien from the L

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.A. office. They described it a little bit. I

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think sometimes people might get confused about,

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they hear about DOJ prosecutors in Washington

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D .C. and then they hear about Assistant United

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States Attorneys. Can you describe like what's

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the difference and how do you guys work together?

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It's basically sort of jurisdiction so that Assistant

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U .S. Attorneys are based geographically. There's

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I think 93, 92, 93 U .S. Attorney's offices nationwide

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and they have jurisdiction basically over every

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crime that happens. in their geographic region.

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They are generalists, kind of geographic specialists,

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legal generalists for their work. They will split

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into criminal, civil, people who specialize in

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forfeiture, that kind of thing. But they handle

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it all within that geographic space. For DOJ,

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we are subject matter specialists. So I could

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go anywhere in the country to prosecute a wildlife

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crime. I wasn't restricted geographically the

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way an assistant U .S. attorney is, but I had

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to be prosecuting, well, for the environmental

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crime section, something that came within our

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portfolio, some type of environmental crime.

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For me, I did only fish, wildlife, and plants

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my entire career. But I could do it anywhere.

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And the perfect relationship between the two

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offices is a partnership. And most of the U .S.

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attorneys would welcome us. and partner with

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us. In some cases, they just didn't. They were

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so stretched thin with other priorities. And

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this was all we did. So when an agent couldn't

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get the attention of a US attorney because they

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were so busy with other things and they just

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didn't have the staff, they could come to us.

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Or if it was a particularly difficult case that

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a US attorney might think, I don't know those

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statutes. That sounds really tricky to me. Either

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they wanted a partner or they wanted somebody

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else to just take it off their hands and run

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with it who actually knew the statutes and could

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therefore do it much more efficiently. That would

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be where we came in. Also, if it was multi -jurisdictional.

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So if the crime happened in more than one district,

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those cases would typically come to us. A lot

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of the long -term undercover investigations,

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because often when those started, you didn't

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know where the venue was going to be. or how

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many different venues you would have. So we tended

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to get either sort of the orphaned homeless cases

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or the really complicated cases. Right. Those

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were our bread and butter. Yeah, I think so,

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you know, it's an interesting relationship because

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it's DOJ prosecutors work closely often with,

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you know, the local or the, you know, the the

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district US attorneys. And then like you said,

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and like Mark said, when he was on the show,

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you know, LA is lucky it has an environmental

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crimes unit, but a lot of US attorney's offices

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do not have a dedicated unit. So they don't necessarily

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have the expertise or they don't have the time.

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So ENRD can come in and work on those cases.

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I'm not sure there's more than two districts

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now that have one. I was trying to think of that.

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LA, Miami still? I don't know. I'm actually not

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sure. The person who headed that group has retired.

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I'm not sure that LA's, have they kept theirs?

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Yeah, they did keep theirs. They always end up

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like changing the name a little bit. So they

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do other things. Like I think right now it's

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environmental crimes and consumer protection

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or something odd like that. But yeah, they still

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have dedicated people to do that work, which

00:14:29.620 --> 00:14:32.779

is great. Um, did you ever, when you were working

00:14:32.779 --> 00:14:36.700

for ENRD, did you ever work on a Wolf case? Well,

00:14:36.700 --> 00:14:39.259

here's the thing. We've talked about that. I

00:14:39.259 --> 00:14:42.080

think so. I think so. I think so. Here's the

00:14:42.080 --> 00:14:45.480

answer. Um, yeah, I have a distinct recollection

00:14:45.480 --> 00:14:49.779

of being out West. I don't, not at the, not at

00:14:49.779 --> 00:14:52.759

the initial court level for the McKittrick case,

00:14:52.960 --> 00:14:56.700

but maybe on appeal. Okay. I know I touched it,

00:14:56.820 --> 00:14:58.159

but honest to God, I can't remember. It's been

00:14:58.159 --> 00:15:02.159

so long now. I can't remember. Yeah, that's okay

00:15:02.159 --> 00:15:05.259

in the episode before years We talked to special

00:15:05.259 --> 00:15:07.860

agent Tim Iker and he told us about his investigation

00:15:07.860 --> 00:15:10.620

of Chad McKittrick that first wolf that was poached

00:15:10.620 --> 00:15:13.440

but what we really didn't get into with Tim was

00:15:13.440 --> 00:15:16.379

detail about what happened after Chad McKittrick

00:15:16.379 --> 00:15:19.460

was convicted and he appealed his conviction

00:15:19.460 --> 00:15:25.340

on a number of Causes or number of reasons he

00:15:25.340 --> 00:15:28.500

appealed But one of those was he claimed that

00:15:28.500 --> 00:15:31.299

the jury instruction that was given in the case

00:15:31.299 --> 00:15:34.259

Which basically told the jury and between you

00:15:34.259 --> 00:15:36.000

and me we're gonna give a little bit of a legal

00:15:36.000 --> 00:15:38.919

background on the on the appeal Whatever between

00:15:38.919 --> 00:15:41.960

the two of us we can remember but basically he

00:15:41.960 --> 00:15:44.860

appealed claiming among other things But one

00:15:44.860 --> 00:15:47.179

of the things was that the jury instruction?

00:15:47.740 --> 00:15:50.500

Given by the judge to the jury which said that

00:15:50.500 --> 00:15:54.600

the jury did not need to conclude that he knew

00:15:54.600 --> 00:15:57.399

he was shooting a wolf when he shot an animal.

00:15:57.899 --> 00:16:01.019

That's basically just that he intentionally took

00:16:01.019 --> 00:16:03.659

a shot at an animal and the animal turned out

00:16:03.659 --> 00:16:05.419

to be a wolf. That's all the jury would need

00:16:05.419 --> 00:16:09.980

to conclude. Interestingly, in the trial, there

00:16:09.980 --> 00:16:12.059

was evidence presented that he did know it was

00:16:12.059 --> 00:16:14.720

a wolf. He talked to the guy next to him and

00:16:14.720 --> 00:16:17.620

said, hey, there's a wolf and he shot it. There

00:16:17.620 --> 00:16:19.399

was a lot of evidence that he did know he was

00:16:19.399 --> 00:16:22.210

shooting a wolf when he pulled the trigger. That

00:16:22.210 --> 00:16:25.649

issue made its way up through appeals, went to

00:16:25.649 --> 00:16:28.070

the, I believe, Ninth Circuit Court of Appeals.

00:16:28.190 --> 00:16:31.950

He lost. The Ninth Circuit said that, no, that's

00:16:31.950 --> 00:16:33.309

a correct jury instruction. You don't have to

00:16:33.309 --> 00:16:35.669

prove that. And then he appealed to the US Supreme

00:16:35.669 --> 00:16:38.250

Court, and that's where things got a little weird.

00:16:39.870 --> 00:16:42.009

Do you want to take it from there, what happened

00:16:42.009 --> 00:16:46.570

at the Supreme Court level? Well, so he was convicted

00:16:46.570 --> 00:16:49.669

on three different misdemeanor counts. Right.

00:16:50.269 --> 00:16:54.330

Only one of those three raised the issue that

00:16:54.330 --> 00:16:57.690

we're talking about, which is what kind of knowledge

00:16:57.690 --> 00:17:00.610

did he need to have about what it was that he

00:17:00.610 --> 00:17:04.970

was shooting? The Ninth Circuit followed other

00:17:04.970 --> 00:17:08.470

circuits and said, yeah, it was just good enough

00:17:08.470 --> 00:17:10.390

that you shot something and it turned out to

00:17:10.390 --> 00:17:13.430

be a wolf. When it got to the Supreme Court,

00:17:13.670 --> 00:17:16.269

the social general's office full of very, very

00:17:16.269 --> 00:17:20.140

smart people. They looked at that jury instruction

00:17:20.140 --> 00:17:24.299

and they looked at relatively recent Supreme

00:17:24.299 --> 00:17:27.940

Court cases at that time and thought, we're not

00:17:27.940 --> 00:17:30.380

going to win on that one because the way where

00:17:30.380 --> 00:17:34.619

the Supreme Court was headed was really following

00:17:34.619 --> 00:17:39.759

a theory that a defendant in a criminal case,

00:17:41.180 --> 00:17:43.839

all of the presumptions of what the elements

00:17:43.839 --> 00:17:49.420

need to be, have to come out to a culpable state

00:17:49.420 --> 00:17:54.259

of mind. So the Supreme Court was moving in the

00:17:54.259 --> 00:17:59.079

direction of the defendant has to know every

00:17:59.079 --> 00:18:07.259

fact that makes it criminal conduct. And so they

00:18:07.259 --> 00:18:12.069

were trying to avoid situations where Conduct

00:18:12.069 --> 00:18:15.289

that would otherwise be regarded by society as

00:18:15.289 --> 00:18:18.829

innocent, unless this one little factoid was

00:18:18.829 --> 00:18:22.789

tweaked, you needed to know as a defendant to

00:18:22.789 --> 00:18:27.710

be a criminal, you needed to know that fact that

00:18:27.710 --> 00:18:30.769

tweaks it into the criminal realm and out of

00:18:30.769 --> 00:18:33.569

innocent conduct realm. So the Solicitor General's

00:18:33.569 --> 00:18:36.329

office looked at that, looked at that jury instruction

00:18:36.329 --> 00:18:40.170

and dropped a footnote in their brief. opposing

00:18:40.170 --> 00:18:44.309

the Supreme Court taking cert saying, you don't

00:18:44.309 --> 00:18:47.069

need to look at all this because we're not going

00:18:47.069 --> 00:18:49.769

to ever do that jury instruction again, court.

00:18:50.309 --> 00:18:54.009

We don't think it matches this court's jurisprudence

00:18:54.009 --> 00:18:58.269

at this point. And so we're not no longer going

00:18:58.269 --> 00:19:02.069

to be arguing that it is good enough to know

00:19:02.069 --> 00:19:04.210

that you shot an animal and the animal turned

00:19:04.210 --> 00:19:07.450

out to be a wolf. Now it doesn't go all the way

00:19:07.450 --> 00:19:10.769

to specific intent. So what they what they're

00:19:10.769 --> 00:19:13.950

saying is When you pull the trigger, you need

00:19:13.950 --> 00:19:17.589

to know it's a wolf because that's a fact That

00:19:17.589 --> 00:19:20.730

makes it criminal conduct if it was in fact a

00:19:20.730 --> 00:19:24.789

feral dog that would be considered maybe innocent

00:19:24.789 --> 00:19:29.490

conduct Or otherwise legal conduct they're not

00:19:29.490 --> 00:19:31.950

requiring that the person pull the trigger knowing

00:19:31.950 --> 00:19:35.029

that it was a wolf and knowing that it was listed

00:19:35.029 --> 00:19:37.589

as an endangered species. They don't have to

00:19:37.589 --> 00:19:40.109

know the state of the law regarding that animal.

00:19:40.390 --> 00:19:42.630

They just have to know the biology. They just

00:19:42.630 --> 00:19:45.890

have to know the identity. Yeah, that's a very

00:19:45.890 --> 00:19:50.049

good distinction. And according to the Solicitor

00:19:50.049 --> 00:19:52.130

General, then this is what's interesting. This

00:19:52.130 --> 00:19:53.690

is where we're going to back up just a little

00:19:53.690 --> 00:19:56.940

bit to talk about this because According to the

00:19:56.940 --> 00:19:59.680

Solicitor General, their interpretation of where

00:19:59.680 --> 00:20:01.099

kind of the Supreme Court was headed and what

00:20:01.099 --> 00:20:05.240

the law is in their mind is that a person who

00:20:05.240 --> 00:20:08.220

shoots at an animal in order to be guilty of

00:20:08.220 --> 00:20:10.480

taking an endangered or threatened species would

00:20:10.480 --> 00:20:13.700

have to know or believe they were shooting at

00:20:13.700 --> 00:20:18.289

a threatened or endangered species. Yes, they

00:20:18.289 --> 00:20:19.809

have to, they have to, well, they have to know

00:20:19.809 --> 00:20:21.809

the identity of the animal. That's it. They have

00:20:21.809 --> 00:20:23.329

to know what the species is. They don't have

00:20:23.329 --> 00:20:25.509

to know these are threatened species. Exactly.

00:20:25.730 --> 00:20:28.430

Okay. Right. Right. And that, yeah, that is the

00:20:28.430 --> 00:20:30.450

key distinction, right? Okay. So you have to

00:20:30.450 --> 00:20:32.670

know you're shooting at a wolf or you think you

00:20:32.670 --> 00:20:35.329

believe you're shooting at a wolf, but it doesn't

00:20:35.329 --> 00:20:37.369

matter whether or not you know that wolves are

00:20:37.369 --> 00:20:41.809

endangered or threatened. Yes. Okay. Right. And,

00:20:41.869 --> 00:20:47.220

um, before I get into a full disclosure, Me and

00:20:47.220 --> 00:20:49.059

a whole lot of other special agents and a lot

00:20:49.059 --> 00:20:53.460

of prosecutors don't agree with that. But before

00:20:53.460 --> 00:20:57.539

we get into that, let's explain what the Solicitor

00:20:57.539 --> 00:20:59.619

General's office is, because we just talked about

00:20:59.619 --> 00:21:03.619

DOJ and ENRD and US Attorney's office. Who the

00:21:03.619 --> 00:21:05.660

heck is the Solicitor General and why are they

00:21:05.660 --> 00:21:10.220

involved in this? They are sort of the highest

00:21:10.220 --> 00:21:17.559

attorney within the department. They do the litigating

00:21:17.559 --> 00:21:19.759

in front of the Supreme Court. So the appellate

00:21:19.759 --> 00:21:22.220

division would handle the appellate cases. The

00:21:22.220 --> 00:21:24.539

Solicitor General handles the Supreme Court cases.

00:21:26.539 --> 00:21:28.460

Right. And like you mentioned, these are very

00:21:28.460 --> 00:21:30.880

smart people who argue in front of the Supreme

00:21:30.880 --> 00:21:35.240

Court a lot. These are like the cream of the

00:21:35.240 --> 00:21:39.039

crop of the appellate attorneys, right? Right.

00:21:39.259 --> 00:21:42.299

Very smart people who spend their lives in front

00:21:42.299 --> 00:21:44.680

of the Supreme Court and they know the justices

00:21:44.680 --> 00:21:48.380

inside and out. and they know how they're likely

00:21:48.380 --> 00:22:00.980

to roll. They have a long history of maintaining

00:22:00.980 --> 00:22:04.640

their credibility in front of that court, which

00:22:04.640 --> 00:22:07.900

I think really helped them have a very strong

00:22:07.900 --> 00:22:12.119

record of wins. They knew where the court was

00:22:12.119 --> 00:22:13.680

headed. They knew what the court was thinking.

00:22:13.799 --> 00:22:16.079

They knew what arguments would appeal to which

00:22:16.079 --> 00:22:19.880

judge. And if they thought a case wasn't going

00:22:19.880 --> 00:22:21.559

to get anywhere, they weren't going to pursue

00:22:21.559 --> 00:22:23.319

it because they didn't want their credibility

00:22:23.319 --> 00:22:25.460

to be damaged with the court, which is understandable.

00:22:25.579 --> 00:22:28.099

They don't want to waste the court's time. Right.

00:22:28.299 --> 00:22:32.039

Yeah. Yeah. OK. So I think this is where kind

00:22:32.039 --> 00:22:36.400

of it creates a problem from people who are opposed

00:22:36.400 --> 00:22:40.029

to what happened next. That creates a problem

00:22:40.029 --> 00:22:45.329

for us because basically what the U .S. Solicitor

00:22:45.329 --> 00:22:49.970

decided to do in this case was, granted, using

00:22:49.970 --> 00:22:52.410

their knowledge of where the Supreme Court was

00:22:52.410 --> 00:22:55.509

going, what kind of rulings had been coming out

00:22:55.509 --> 00:23:00.430

of the Supreme Court up to that time, what the

00:23:00.430 --> 00:23:03.089

personalities of the justices were, they believed

00:23:03.089 --> 00:23:07.000

that they wouldn't win on this. Anyway, so they

00:23:07.000 --> 00:23:08.819

just decided we're not we're not going to use

00:23:08.819 --> 00:23:10.799

that jury instruction anymore. So don't even

00:23:10.799 --> 00:23:16.440

address the question. That I get it, but it creates

00:23:16.440 --> 00:23:19.460

an issue because what happened next was the U

00:23:19.460 --> 00:23:23.400

.S. Department of Justice issued a memo to prosecutors

00:23:23.400 --> 00:23:26.519

basically telling them not to use that jury instruction

00:23:26.519 --> 00:23:29.119

that was used in McKittrick. Right. And that's

00:23:29.119 --> 00:23:33.279

what's. Yeah, exactly. And that's what we call

00:23:33.279 --> 00:23:36.920

the McKittrick memo. Sometimes agents have mistakenly

00:23:36.920 --> 00:23:39.680

referred to it as the McKittrick decision. But

00:23:39.680 --> 00:23:43.940

I think it's McKittrick policy, McKittrick memo.

00:23:44.839 --> 00:23:46.920

But where it comes down to for me, these are

00:23:46.920 --> 00:23:51.140

the problems for me. And I wrote, you know, co

00:23:51.140 --> 00:23:53.140

-wrote a law review article about this issue

00:23:53.140 --> 00:23:54.779

if anybody wants to read it. It's a little dated

00:23:54.779 --> 00:23:57.400

now, 2011, but I think nothing's really changed

00:23:57.400 --> 00:24:05.279

since then much. But my problem is that if Any

00:24:05.279 --> 00:24:08.420

lawyer in this country or any citizen who did

00:24:08.420 --> 00:24:11.920

a little bit of legal research? And they looked

00:24:11.920 --> 00:24:15.799

at the highest ruling in the country. It's going

00:24:15.799 --> 00:24:18.519

to be the courts of appeal because the Supreme

00:24:18.519 --> 00:24:21.880

Court never looked at the issue. And those all

00:24:21.880 --> 00:24:25.859

of those courts agree that this this jury instruction

00:24:25.859 --> 00:24:28.140

was correct under the Endangered Species Act

00:24:28.140 --> 00:24:31.119

pursuant to congressional intent. This is what

00:24:31.119 --> 00:24:35.130

Congress intended. And so anybody who does diligent

00:24:35.130 --> 00:24:37.730

legal research will conclude that the law is

00:24:37.730 --> 00:24:40.950

very different than how it's being applied. And

00:24:40.950 --> 00:24:45.329

the way it's being applied is is the result of

00:24:45.329 --> 00:24:49.569

a decision. Somebody who is not elected, who

00:24:49.569 --> 00:24:51.970

just made this decision based on their legal

00:24:51.970 --> 00:24:55.690

experience and locked it down with a memo. It

00:24:55.690 --> 00:24:58.750

is never going to come up for appeal again. The

00:24:58.750 --> 00:25:03.380

only way this could be. changed, presumably would

00:25:03.380 --> 00:25:06.619

be Congress has to change the Endangered Species

00:25:06.619 --> 00:25:11.400

Act to be much more specific on take, or a political

00:25:11.400 --> 00:25:13.359

decision has to be made to rescind the memo.

00:25:13.880 --> 00:25:16.299

There's no opportunity for appeal. Nobody, this

00:25:16.299 --> 00:25:18.839

is never going to come up on appeal again. And

00:25:18.839 --> 00:25:20.960

any lawyer doing research on it is going to conclude

00:25:20.960 --> 00:25:22.900

that the law is very different than how it's

00:25:22.900 --> 00:25:25.099

being applied. That's what bugs me about it.

00:25:25.299 --> 00:25:28.319

But, but it's, the position being applied is

00:25:28.319 --> 00:25:32.460

a criminal statute. That is the job of DOJ to

00:25:32.460 --> 00:25:34.519

make sure all the criminal prosecutors who would

00:25:34.519 --> 00:25:37.579

use the statute are aware of the Supreme Court

00:25:37.579 --> 00:25:40.819

case law, of the footnote in the McCutcher brief,

00:25:41.039 --> 00:25:45.559

of the U .S. position on a matter of law. Like,

00:25:45.559 --> 00:25:48.680

this is not a policy. I think that's an important

00:25:48.680 --> 00:25:55.140

distinction that I don't disagree that there

00:25:55.140 --> 00:25:58.400

are probably some cases. I may disagree on that.

00:25:58.720 --> 00:26:01.779

degree to which this has really impacted prosecutions,

00:26:02.619 --> 00:26:07.279

and we should talk about that in a second. But

00:26:07.279 --> 00:26:11.480

I think that it is the Solicitor General's job

00:26:11.480 --> 00:26:15.960

to interpret the law as best they can. And yes,

00:26:16.259 --> 00:26:18.000

somebody could come, a different Solicitor General

00:26:18.000 --> 00:26:20.880

could come in place and say, yeah, I think the

00:26:20.880 --> 00:26:23.599

law is moved. I don't think that's the right

00:26:23.599 --> 00:26:25.819

decision and we're going to rescind the memo

00:26:25.819 --> 00:26:30.759

or make it more nuanced or whatever. But it is

00:26:30.759 --> 00:26:33.960

their job to interpret the law. They aren't setting

00:26:33.960 --> 00:26:38.279

policy. They're not saying it's good or bad to

00:26:38.279 --> 00:26:40.460

require certain things. They're saying that this

00:26:40.460 --> 00:26:44.400

statute, as it's written, in good faith, looking

00:26:44.400 --> 00:26:47.000

at Supreme Court case law, we believe this is

00:26:47.000 --> 00:26:49.259

how the Supreme Court would rule on it. It's

00:26:49.259 --> 00:26:52.500

not how the Ninth Circuit ruled on it. But looking

00:26:52.500 --> 00:26:54.900

at the direction of the jurisprudence at the

00:26:54.900 --> 00:26:57.160

Supreme Court, That's how we believe the Supreme

00:26:57.160 --> 00:27:00.519

Court would rule on it. We are bound by Supreme

00:27:00.519 --> 00:27:03.799

Court precedent. We're not going to set ourselves

00:27:03.799 --> 00:27:07.559

up for failure. We think this is the right interpretation

00:27:07.559 --> 00:27:10.880

of the law based on everything we have to refer

00:27:10.880 --> 00:27:15.240

to in order to interpret a law. So I think it

00:27:15.240 --> 00:27:18.380

is a legislative question at this point. Well,

00:27:18.559 --> 00:27:21.619

see, I'm not sure because I agree with you that

00:27:21.619 --> 00:27:25.150

it is their job to evaluate cases. whether or

00:27:25.150 --> 00:27:26.589

not to argue them in front of the Supreme Court.

00:27:26.730 --> 00:27:29.509

There's lots of times when we decide we're not

00:27:29.509 --> 00:27:32.190

going to go forward with that. This isn't that.

00:27:32.289 --> 00:27:35.529

This isn't evaluating the facts of a case and

00:27:35.529 --> 00:27:37.910

the law. Is it a strong enough case? Can we prove

00:27:37.910 --> 00:27:41.630

the case? This is a question of does the law

00:27:41.630 --> 00:27:44.990

prohibit this conduct? And they're saying that

00:27:44.990 --> 00:27:50.210

the law does not prohibit that particular conduct.

00:27:50.730 --> 00:27:54.869

So there's a difference between situations which

00:27:54.869 --> 00:27:58.609

do exist where parts of government will illegally

00:27:58.609 --> 00:28:02.049

say, we don't like that part of the law right

00:28:02.049 --> 00:28:03.710

now. We're just we're not going to prioritize

00:28:03.710 --> 00:28:06.450

it. We're not going to enforce it. And if and

00:28:06.450 --> 00:28:09.009

if they make a statement saying essentially categorically,

00:28:09.009 --> 00:28:13.930

we're not going to enforce a law, not that not

00:28:13.930 --> 00:28:15.690

that there's a difference on what the law means.

00:28:16.170 --> 00:28:17.769

But here's what the law means. We're not going

00:28:17.769 --> 00:28:21.289

to enforce it. That's illegal. That's a policy

00:28:21.289 --> 00:28:23.589

call and that's not allowed. Congress has said

00:28:23.589 --> 00:28:26.349

what the conduct is and you're supposed to enforce

00:28:26.349 --> 00:28:28.289

it. There are instances where you just don't

00:28:28.289 --> 00:28:30.309

have the resources, right? You have to make priority

00:28:30.309 --> 00:28:33.390

choices. But for the most part, you can't simply

00:28:33.390 --> 00:28:35.069

categorically say we're not going to enforce

00:28:35.069 --> 00:28:38.069

the law as Congress has laid it out. That's different

00:28:38.069 --> 00:28:41.069

from saying, here's the law that Congress laid

00:28:41.069 --> 00:28:44.029

out. We don't think it prohibits this type of

00:28:44.029 --> 00:28:47.759

conduct. We think this is what it applies to

00:28:47.759 --> 00:28:49.619

and we will enforce what we think it applies

00:28:49.619 --> 00:28:54.180

to but we just don't think the law does What

00:28:54.180 --> 00:28:58.299

you would like it to do? Yeah, I mean I understand

00:28:58.299 --> 00:29:01.900

how the solicitor You know got to where they

00:29:01.900 --> 00:29:05.900

were And and I don't agree with their evaluation

00:29:05.900 --> 00:29:08.579

or analysis of it but I didn't either at the

00:29:08.579 --> 00:29:11.259

time but I'm a little yeah you've changed okay

00:29:11.259 --> 00:29:13.440

well we talk about that a little bit too but

00:29:13.440 --> 00:29:15.559

you know I do think when they put out the memo

00:29:15.559 --> 00:29:18.019

they did turn it into policy it became policy

00:29:18.019 --> 00:29:20.680

of the Department of Justice not to use that

00:29:20.680 --> 00:29:24.000

that um that jury instruction Department's interpretation

00:29:24.000 --> 00:29:29.279

of law that's different than policy um yes but

00:29:29.279 --> 00:29:31.740

their interpretation of law is their opinion

00:29:31.740 --> 00:29:34.359

right so that's like officer discretion that's

00:29:34.359 --> 00:29:41.460

like That's just their opinion But but It is

00:29:41.460 --> 00:29:43.319

but once you turn out a memo that says don't

00:29:43.319 --> 00:29:45.819

do it that's policy. They're turning on them

00:29:45.819 --> 00:29:49.740

and said this is what the law is I don't know.

00:29:49.799 --> 00:29:52.579

I'll put the memo up on the website Therefore

00:29:52.579 --> 00:29:55.000

you can't give a jury instruction that says X

00:29:55.000 --> 00:29:57.339

because it would be wrong because the law does

00:29:57.339 --> 00:30:04.150

not say X Well Yes, it is an opinion of the Solicitor's

00:30:04.150 --> 00:30:07.430

Office, but a lot of legal minds have disagreed

00:30:07.430 --> 00:30:10.069

with the Solicitor's Office on that issue. I

00:30:10.069 --> 00:30:12.109

think one of the things that we pointed out in

00:30:12.109 --> 00:30:15.049

the Law Review article is that in the congressional

00:30:15.049 --> 00:30:17.269

record, when the amendments were made to the

00:30:17.269 --> 00:30:20.869

ESA on the criminal provisions, there was some

00:30:20.869 --> 00:30:24.170

discussion in Congress that they did not want

00:30:24.170 --> 00:30:26.950

it to be required that somebody have that level

00:30:26.950 --> 00:30:32.109

of mens rea. So, aside from some of the other

00:30:32.109 --> 00:30:35.549

Supreme Court cases that have been cited justifying

00:30:35.549 --> 00:30:38.690

the solicitor's interpretation, those things

00:30:38.690 --> 00:30:41.789

are not there in those Supreme Court cases. Those

00:30:41.789 --> 00:30:44.950

Supreme Court cases talk specifically about how

00:30:44.950 --> 00:30:47.250

there was nothing from Congress indicating what

00:30:47.250 --> 00:30:49.930

their intent was. Well, in the ESA, there is

00:30:49.930 --> 00:30:52.589

some record of what Congress intended, and it's

00:30:52.589 --> 00:30:56.529

just kind of ignored. Well, Supreme Court's gone

00:30:56.529 --> 00:31:00.140

beyond that now. In more recent cases, yeah,

00:31:00.200 --> 00:31:04.200

the earlier cases were all about, it can't be

00:31:04.200 --> 00:31:07.480

sort of otherwise innocent looking conduct. And

00:31:07.480 --> 00:31:10.579

they were cases that were dealing often with

00:31:10.579 --> 00:31:12.980

strict liability types of situations, which the

00:31:12.980 --> 00:31:18.160

court has always hated. But some more recent

00:31:18.160 --> 00:31:23.200

cases deal with knowledge and willfulness. And

00:31:23.200 --> 00:31:26.519

they are still coming down on saying, Knowledge

00:31:26.519 --> 00:31:31.400

can't be because there's sort of a specific knowledge

00:31:31.400 --> 00:31:36.779

or almost a negligence knowledge like And more

00:31:36.779 --> 00:31:39.460

recent cases have gone kind of the one step further

00:31:39.460 --> 00:31:43.339

and said It can't be kind of negligent knowledge.

00:31:43.539 --> 00:31:46.779

It has to be absolute knowledge. I knew and I

00:31:46.779 --> 00:31:50.599

did X anyway But what does this do to there's

00:31:50.599 --> 00:31:54.400

a specific federal statute criminal statute title

00:31:54.400 --> 00:32:00.359

18 I think it's a manslaughter statute, and it

00:32:00.359 --> 00:32:04.460

talks specifically about lack of due regard for

00:32:04.460 --> 00:32:07.859

what you're doing. Not that you intended to kill

00:32:07.859 --> 00:32:10.819

somebody, but that lack of due regard caused

00:32:10.819 --> 00:32:13.460

you to kill someone. And if the ESA was written

00:32:13.460 --> 00:32:15.660

to include that kind of a negligent standard

00:32:15.660 --> 00:32:18.259

explicitly, absolutely it would be applied, but

00:32:18.259 --> 00:32:20.380

it's not written that way. It's written for knowledge.

00:32:21.250 --> 00:32:23.4