On today's McCarthy Report, Andy explains why the Hunter Biden plea deal fell through, and why it suggests cynicism and corruption with the DOJ.
This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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Are they are born podcast, we're irish larry, discuss with an mccarthy the latest legal and national security issues this week? What else the hunter plea bargain
implosion by the way, for some reason: you're not already following us on a streaming service. You can find us everywhere from spotify to itunes, and please give
I cast an mccarthy the glowing indeed gushing fudged our views. They
serve on itunes. Now without further ado, I welcome to this very part.
Through the miracle riverside none other than any mccarthy wretch you
I got an error. You I'm doing fine, I'm still in a sort of state of stunned them over what we're going to talk about today, but just to divert for a second yeah, the mets and the yankees played the last two days: no juice at all, just no juice at all in it. I hate to see it because you thought you had
which expectations for yeah the season, but I just er the yankees- are unsold the possession of last place, not necessarily for the duration. I would think, but that the mets mets aren't in last rate, his who's, the metrical a lot closer to the nationals than they are to the braves, to your yeah, yeah and and snowball games under under five hundred alright, so megan
stop skipping. Now you can't kill me
you talk about this. This plea bargain.
and Andy, as I mentioned before, or sometimes most of time provided
vida outline of what he wants to hit? I didn't have time
Let me just sent me his notes, which blew up any ambition. I ever had to be a prosecutor or any modest thoughts. I might have that through this podcast have become a such a legal aspect. I could keep up with the prosecutor.
Typing way, madly about a complex legal matter so area. I think I have the the broad
his gauge understanding? What what happened here? But it's it's important
It's outrageous and we need you to workers through that. Indeed,
but first well what happened said it? The the
just as the broadest gauge. The the judge rejects this deal because there there were hidden elements of it that a pathway
the hunter defence team and the department of adjust
if there is a difference between those two things came up with in the
in the part of that having to do with the gun charge and in probation, that would have
actively just put off the table, any sort of future proof.
occasions for hunter for any any future cross.
Any other crimes. He might be no four in the future. What's that
three minute version, then we'll go deeper. I think the easiest way to look at this rich is that they did a political act, that they tried to masquerade as a legal plea proceeding and they got caught and as a result, when the judge asked them probing questions about exactly what they had agreed to. The deal fell apart. Not because- and this is the this- is the deceptive element in a in a sea of deception. But this is the main deceptive element it. It fell apart, not because they failed to have a meeting of the mind.
They had a complete meeting of the minds. This is a situation where it's like I compare to worm. You know blue city, municipal union negotiations, where you have both the you know, the union and the Democrats, or at the at the quota, unquote, bargaining table and a year. The objective is: how much are we gonna screw the public out of collectively so that we can give we? The Democrats can give you the union's money and then you the union's, can give us back the money, and this support its that kind.
we'll deal it's not. We talk a lot about the failure of merit garland to appoint a special council. The idea behind the rule that requires that is that criminal proceedings is supposed to be adversarial and what we mean by that is that the defence, the defence lawyers there only interest is the defendants interest and the prosecutors. Only interest is the public interest which includes aggressively prosecuting
People who break the law, so the theory of our system hinges on it being adversarial, because that's what that's? What does crystallizes did the disputed issues and gets us to a point where we can make deals with people.
In all their head up about. So the underlying assumption of the whole system is that it's supposed to be adversarial here, you go
Both sides are playing on the same team.
The elderly of that is that this is political. You know you can imagine and other kinds of situations. I suppose, where parties negotiating some.
A deal, but it's not really adversarial, but in in this
duration. It's a political
on adversarial conk contacts and what they're trying to accomplish is political and what I would suggest to people.
is that if your underlying assumption is as mine is that the objective here is to protect president Biden and that's more of an objective than to get a particular result for hunter, then everything falls into place and everything makes total sense. So when I say that even though it appeared to break down be
They didn't have a meeting of the mines. In point of fact, they did have a meeting of the mines, but as a matter of politics, the Biden, justice, deportment couldn't admit to it, and what I mean by that is a plea. Agreement is a contract like any other contract and the law school definition of what is a contract. Is it's just an agreement? It's a meeting of minds. So in order to have an enforceable contract at a minimum, you have to have agreement on the main terms. Everybody has to have their eyes open about what the main I
the other, that you try to accomplish in that, you agree on r and that's why it's always preferable to have a writing so that everybody knows you know it's not your interpreted
of what we are really discussed or my interpretation there's a writing that says you know we're both looked at this, and this is what we agree to so in a plea agreement. The main understanding is what is the defendant going to plead guilty to that is examined,
what charges are he are at stake and secondly- and this is the most important- what is the immunity provision? In other words, defendants plead guilty
rather than rolling the dice in going to trial, because what they're going to get out of it
is a shield from being prosecuted for any.
Else related to the transaction at stake and anything else they can wrangle in the agreement. So what a plea agreement is supposed to be crystal clear about is: what is the government expect the defendant to plead guilty to and what has to defend and agreed to plead guilty to, and what do they both agree is the scope of immunity that flows out of the exchange for that guilty plea. So what have
here was the objective of the parties was to give hunter the maximum amount of immunity in exchange for
minimum amount that they thought they could get away with of him admitting wrong doing so. The descent
part of that equations. Easy enough. We got a guy who's guilty of serious tax violations and other things who is given
A plea deal to two misdemeanor tax charges, in violation of all kinds of joy,
his department and I ira standards for what you would do in connection with the plea bargains which we can we can talk about, but the immunity provision is the judge looking
the agreement, couldn't really understand because of the funky way that they they pull this off. What the immunity agreement was
and as a result, she asked probing questions and what happened here? Is the parties banked on the idea that the judge would look at this as a regular plea agreement and now
ask any questions and then just move on to ask hunter what he did to be guilty of the charges and we all go home instead, because the judge couldn't understand the deal. She asked questions which judges, ordinarily, don't and I can get into- why that's true, but at that
wait. Hunter said our understanding is. We have immunity for everything that arises out of these tax years from two thousand and fourteen to twenty nineteen, not just tax, but everything, everything that factually arises out of the transactions that are described and the factual narrative that is described in the statement of facts that that's appended to the agreement, and at that point the judge says to the government. Did you really give him immunity for everything for five years seriously,
and at that point politically, even though that's exactly what the prosecutors did do the bite administration, which has been telling the house of representatives and the american people that there is a continuing investigation in this case they couldn't at that point say well, yes, as a matter of fact, we ve given one of the main subjects in the investigation, immunity for everything in our continuing investigation in exchange for two misdemeanor tax. Please they couldn't say that because it would have been politically catastrophic, so they had to pretend
that. No, no, no he's got limited immunity and there is a continuing investigation and its conceivable. He could be charge again at which point the hunter defence lawyers. What work? That's network, which greek to that's, not what we agreed to it all and to the extent that you can glean from the cockamamie documents that they find
in connection with this plea, the hunter lawyers are the ones who have the better of the argument. It seems pretty clear that that the justice to part with the whole point of this was to make the case go away and they even have a net.
for you know why he got the money and all that that jazz, but the idea was to make the hunter
please go away and then the whole thing then seeps into the great black hole, and it no longer has a problem over time for Joe Biden, which was the main objective, but because the judge called them on it. The government had to the bite and justice department
switch its position and say instead of giving hunter immunity for everything that his immunity was limited, and that was how the thing blew up search. Just just just being clear.
We thought this deal was a sweetheart deal. Those independent
prior to knowing about this correct
new horizons, new information, this isn't sire media, so it and
wood. Is there any chance that the justice department, lawyers there
We are fully aware of the importance of these.
regions until the the judge, pull the strain on them or their just thinking fast on their feet. Knowing that this this
so indefensible we gotta say no. No. We never agreed grid to that about the view that let me out a second question: getting biscuit
point, or is there some chance that that the justice department and hunters,
had just different understandings of what this was an and when the, when the judge pull the string there like ok, what no we did. We, we actually didn
at this point: kneel down, there's no chance that they, they were under misunderstanding- that the two sides had a different understanding. Now, let's take a step back risk, as I think these are that these are the key questions. But let me try to explain why it was not unreasonable for for them to all think they could get away with this, because it sounds great.
right. So what we need to talk about, first, is what happens in a normal plea, proceeding right in a normal plea preceding the justice department rights, the play agreement
and the great thing I always say the grey thing when I was a prosecutor was defence lawyers would ask you, could you tweet this term? Could you tweet that term and it was great to be able tell them? No, we never tweak the terms,
because this is the way number one. You make sure that everybody gets equal justice under the law. It's the same kind of with the provisions of pro forma. Every single agreement has the same kind of provisions in it, which answer the things that have to be done under the law at a plea proceedings, and the second thing is the provisions in the government's plea standard plea. Agreement are developed over time on the basis of,
I've only experience, but the rulings of the supreme court and the court of appeal. So the only time we have a change to the agreements in the justice department is if the court makes a ruling. That call calls one the provisions into question. Then you have to change all of the agreements in order to conform with what the law is according to the courts, but otherwise you always tell the defence lawyers. That's the deal, take it or leave it. This is not that agreement that the government clearly did not write this agreement, it's a collaborative effort between the government and the burdens, and it doesn't resemble the normal play agreement. Now. Here's why that's important the normal plea agreement
is very exacting in terms of what the defendant is bleeding guilty to and what the immunity he's getting out of pleading is, and for that reason judges typically do not ask the parties in the plea proceeding. What's the scope of the immunity, because it so clear in the document, you would be asking for trouble to ask them to get up, and
orally explain what their, what their understanding of the immunity is, because you can only create a problem if their oral description of it doesn't match with the written document says so this heavy reliance on the writing in the normal case and as a result,
It would be reasonable for experience defence lawyers and experienced prosecutors to hope that the court would not asked questions about what the scope of the immunity was. She would just see that it was a play agreement. Both sides at signed it and move on to the part where she s hunter. What did you do that makes you guilty of these charges?
what they were hoping for, so they needed a rubber stamp and it was not unreasonable for them to think they'd get a rubber stamp. I'm not saying that they had any scouting report on this particular judge, but you know: look the the Biden think they have delaware, pretty wired right. I mean we're talking here about a: u s: attorney and judges who been appointed by trump but they're kind of biden friendly. You know because they ve been
Oh by the two democrat senators. There and Biden was a senator there for ever the biden- families very powerful in delaware, so I think they had reason to think that they would go in and the judge
it simply treat this like a normal? It is lost
Writing that was called a plea agreement that she tree
like a normal play agreement, not ask a lot of questions and let puppet let onto plead guilty and rich. I think it was their expect. The it's! It's so clearly that so clear that
was the expectation that they had a podium set up outside the courthouse cause. The expectation was there, we're gonna, do the plea and then
We're gonna come out and address the media, which you would never ever do if the case was
genuine or if you seriously thought there was a continuing investigation which you could ultimately get charge. So that's what they expect. It was going to happen. The problem they ran into is that this judge did her job. So she looked at this thing and said you know: look it's not clear here. What the scope of the immunity is and the reason that she was that she was taken aback by this is in a normal plea agreement. Everything is in the play
agreement in fact, is always a clause at the end of the plea agreement that says this is the comprehensive agreement between the parties? There were no other side deals. Does no understandings, there's no promises does know nothing except what's written here,
this. This is illegal nicely. I'm going to take away from this conversation a plea remit. Usually everything is in the plea agreement oddly enough well, except that in this way
agreement. When you flip down to the last page, they don't have that provision which is unusual
and it's not the only agreement. It's not all that altogether that
unusual, to have a plea agreement that a pen.
Statement of facts that the parties have agreed to that happens a good deal. It usually is the government
rights that, in its obvious to me in this instance that hunters lawyers are the ones who wrote the a statement of facts
but what you don't usually have is a sec,
the agreement that is added into the mix with the first agreement. So what hunters lawyers did in
and the government did in a nutshell here- is the tax plea agreement doesn't contain any immunity provision.
at all, and then there is a second agreement which is called the diversion agreement and that relates to the gun charge. That hunter was not pleading guilty to. So it's not a plea agreement, which is why they have to call it a diversion agreement and they call it a diversion agreement as literally a diversion, because what you're supposed to think is
this. This is just about the gun that he's going into a diversion programme instead of being prosecuted for and instead
What I'm saying is that the whole thing was a sham too, to basically distract attention from the deficiencies that were obvious of the play agreement, its in the diversion agreement, where he's not pleading guilty that they took in the clause that says it's the intention of the parties that he never gets prosecuted for anything that's described in the statement of facts that we ve
and so they top the immunity in the other agreement to which he's not pleading guilty, and there is no immunity provision in the agreement to which he is pleading guilty. So the judge said what's going on here and she told them by the way: I'm not a rubber stamp me the judge, the court, you know, I'm not I'm a I'm, not what you evidently expected and so
She asked the questions that they were hoping and expecting that she wasn't going to ask and the problem they had is. There is no explaining this. They needed.
Have her be a rubber stamp and just rely on the writing and move on and the minute she said this is
One of those situations which was she had to ask you know exacting probing questions. What
the scope of the immunity is like the main provision in the ukraine, and that was the question. They could never win your craving.
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the council, what would have been a consequence and giving him that immunity, but
is establishing immunity for him? Is it a way of saying? Well you you can't or shouldn't investigate this, because there's no way you can prosecute him for it such a way and the reason is the reason,
Can tell that it's a sham is the government claims that they have
continuing investigation and when the judge asked this question these questions about the immunity provision led to you now the next obvious questions which
was do you have a continuing investigation and is a possible. He could be charge again and the prosecutors
point said: hammer home have yes, yes, we have a continuing investigation and he could conceivably be charged, get because politically that's what they had to say. But the thing is on the planet: earth. You would never. If you are a prosecutor who is running a continuing investigation into serious.
Crime, you would never, in the middle of your ongoing investigation, give a sweetheart plea agreement to the main subject of the investigation, a play agreement which, by the way, commits you to make a recommendation to the court of a no jail sentence. Now, if you're, here
in the middle of investigating this guy, for like millions of dollars of bribery and you're, saying that's a continuing investigation? We don't know how that's going to turn out and he might be charge if you're, the judge. Is it your first question? Will? Why are you giving him a plea agreement at this point and the other cutesy pie thing here? That's important to note. This is all spoken of rich, except for the the bit about the gun which we can talk about. But this is all spoken about.
In the language of tax and tax enforcement right and the plea agreement is all about tax and it's a calculation of the sentencing guidelines of the of the amount you not the amount of of
criminal exposure he has based on the amount of taxes, unpaid paid nor that stuff, so it all its tax tax tax. Then they have this sweeping narrative. You know several pages, long, oven of a statement of facts, obviously authored by hunters lawyers, which described his activities, purportedly from twenty sixteen to twenty nineteen, which are the years that he has exposure for because they ve what god the earlier years lapse. The statue limitation has lapsed ana twenty fourteen and twenty fifteen stuff, and then let's put that aside, because we should talk about that for a few minutes for other reasons, but so there's this narrative all his
but he's including his foreign business dealings, some twenty sixteen to twenty nighty right now you gotta diversion agreement and you look at the immunity provision and what it says is not that he's getting immunity from any tax crimes intact years. Twenty sixteen through twenty nineteen he's getting immunity from anything that can be derived out of the statement of facts which, even though it doesn't talk about other crimes, it doesn't say money laundering or bribery or foreign agent registration violations. What he what this was design was that so he could say for that series of factual transactions that took place on twenty sixteen to twenty nineteen. Once I enter these two misdemeanour
or tax, please. I can never be charged with anything at all that arrives at that derives or arises out of those facts, so it was to cover him not just for tax, but for everything. So so how high does this go?
did, did to assume the mirror grown is aware of this and approved it. I think every
thing that merit garland has done in connection with Biden puts it
We, including not appointing a special council, was so that the Biden justice department, which he runs could keep control of this, because an independent, scrupulous prosecutor would never agree to a deal like this
What here's here's a good example of that rich one. The things I was asked yesterday, while we were doing coverage of the stuff, is
well now that this is blown up. Does that mean he goes to trial, and my answer was goes to trial on water, because you may have noticed this. No one type, but in this case the only thing that, in the way of charges that has ever
I'm out of this case is now a criminal intimate information which means it's written by a prosecutor threatened by the u s, attack
not by its not a grand, jury and diamond, and it's a bare bones description of these two misdemeanor tax. Georgia's. There is no indict
so you don't remember the mahler investigation of trump right, where we saw indictment after indictment after indictment and what they typically did was. You know twenty pages
thirty pages, where they went on in a very narrative way, talking about collusion, collusion, collusion and you'd flip to the end and just be a bunch of false statements charges, but in lurid detail they would. They would lay out all the terrible things that the evidence show to have been done. They had never done that in the hunter Biden investigation, for the same reason that the justice department didn't describe as you normally wouldn't a plea agreement, what crimes he was being given immunity for, because if you had a description like that publicly, you would not be able to justify giving him a plea deal to to.
Misdemeanor counts, so they can afford to have anything out there that describes what this guy has done and the only reason they ve been able to pull. That off is because Merrick garland kept this investigation in the Biden, justice department,
as I have been saying in our in our pockets for a long time now, this has been a. This has been something that I really
should it got more coverage, but hasn't the fact that they cut carried this as a tax investigation.
Even though there may be more serious crimes in it, even though you may have money laundering and and fairer
relations and all the other stuff, maybe even bribery conspiracy, but they ve always carried as as attacks violation. Why? Because under justice department rules, unlike almost any other kind of crime, you're not allowed to indict attacks crime without approval from tax division at main justice? So with respect to all
any other crime, a district? U s attorney! Can you can file an indictment without having to get any permission from main justice from washington from the justice department, but with tax you have to get tax division text. Division is run by political appointees of the
by the administration. So, even though, all this time garlands been saying that wise is in charge and he's a trump appointee and he's got independence as far as suggested support was concerned, they were run, and this is a tax investigation, which means he couldn't have short. He couldn't charge. Anything without permission from
de oh jake. So this is like a long winded way of saying it goes to the very top, because Merrick garland is the one who would have had to appoint a special council.
Spin blindingly clear from the moment he got confirmed that the Biden justice department has a profound conflict of interest and can't ethically investigate the Biden son for conduct. That Biden himself is implicated in. It's been his duty from the start to appoint a special council. He hasn't because he needs to keep control of it and that's exactly what we saw yesterday.
This is what his control of the of the case was designed to produce, and this word as presently provided in insurance round turbine incase, republicans elected and
before and justice apartments, not doesn't house
before giving attitude yeah immunity is another way of saying double jeopardy. Right I mean when she got it, you got it, which means you have it forever on everything,
so so what happens now, while two good question so that, at the time when this all collapsed, the judge said that they have thirty days to file legal briefs to try to persuade her that this was a legal agreement, because it's got some funky provisions in it that are designed to give hunter. You know, suspender
protection after the belt protection and already that she thought were completely unconstitutional and wanted them to brief. But I think
lay the reason she gave a thirty day window is is in order.
Obviously everyone needs a breather here to figure out what what happens next again rich. It shouldn't be hard to figure out what happens next, because in a normal case there would already be an indictment. So when a put one plea, negotiation sale, you go to trial,
go back to the drawing board and try to do. You know another agreement that the court will accept, but here there's no indictment
Whole reason rich, that we ve lost counts, including the charisma counts, is because the they haven't indicted. It's it's indictment that stops the clock, and on that note, I have to observe you know which the counts that everybody keeps saying. Oh, we lost a twenty fourteen. Twenty fifteen tax counts there, not just a twenty fourteen. Twenty fifteen tax counts. Those are the beryllium years years, but are now hearing based on all the regulations that we had in the last couple of weeks is those of the years in which number one hunter Biden was was implanted on the beryllium aboard at at like eighty something thousand dollars a month as part of a bribe to Joe Biden to use his power, as vice president, which he was at the time to protect bourgeois from enforcement action by the new ukrainian government that the above
administration was backing. That was the reason hunter got put on the board in the first place, and now what we hearing is in addition to that, this guy's or chaskey, who runs charisma, paid a five million dollar bribed a hunter and a five billion dollar bore bribed to Joe now. Obviously, that has to be investigated
knows how hard there trying to investigate it. But my point is the most startling element of the testimony that we got from the two.
What iris whistle blowers was that, in the interests of getting a global plea agreement, the Biden lawyers were willing to waive the statute of limitations so that they could get an agreement that covered everything, and it was the justice department that let the twenty fourteen and twenty fifteen years lapse. It wasn't the defence lawyers defence lawyers were willing to stipulate that they wouldn't they wouldn't move on the basis of the of the statute of limitations. It was the justice department that let it go and I think the reason they let it go is because, if those cancer and an indictment, then you have to explain why the income came from the incomes of.
Bribe. You know so I mean that they're, not it it's not like they're idly letting counts, go! Oh, you know it's too bad, those those those years that kind of stale. Now anyway, twenty fourteen twenty fifteen so long time. No, no! No! It's about prisma! That's the reason they didn't want. Those counts to survive,
So it's a lasting forego spit speaking of
relations last couple weeks,
one of the major ones we've had since we spoke last
he is the miranda divine column this week in the post
Stop saying that the debt devon archers testimony is: can we explosive and alleged that sir hunter puts his
add on the phone with bereavement prisoner officials, while he was vice president. So what what do you? What do you make of the credibility of this and how would it change your understanding of things or advance or understanding things, while two things, I think number one it matches up with? What we already knew I mean we've had
it's a witness, testimony and other documentation that shows that hunter put his father in touch with a lot of his business partners. Tony bubble, linsky testified in connection with the sea at sea, stuff that he had to face to face meetings with Biden. We ve had pictures of him
her with his business partners and his father. We know that he introduces when he flew on air force, to with Biden too to china,
the first thing they did when they landed was he introduced. Jonathan lie? Who was his partner in this big bo high harvest arrest, he investment vehicle and in china, so for archer to come?
and say yeah, two dozen times at least he remembers hunter pudding, Joe Biden on the phone with their business associates. That just confirms, I mean it's, it's good.
nation to have, but it just confirms what we already know. What I would say about this so rich- and this is what I'd like to leave people with,
is everything we now know about the hunt about the devon archer thing to end. The events of yesterday tells me that the continuing investigation is a sham
and that the only way that wherever gonna get more information is if the house of representatives continues to investigate
there were a serious investigation and you were the prosecutor on it and Devon. Archer was a big witness in your investigation, which everybody has regarding them as right and for good reason. You would never let him testify in front of cops,
Because you would be anticipating that, eventually, you gonna have a big trial and you don't want to
create more stuff for them to cross, examine him on so never ever. Would you allow that to happen? The other thing is, as we've just seen, the hunter Biden Jr defense is in cahoots with the Biden. Justice department. Garland has not appointed a special counsel, there's no independent investigation here. So what else have we heard about devon archer? Besides, the fact that he's going to talk to the house committee
we ve heard that he's already testified in the grand jury. So do you think they put him in the grand jury to further their investigation? I
think they put him in the grand jury to find out what he's gonna say so that they would have
least some heads up an ability to do damage control, but they did
is no serious continuing investigation here there is no intention to to get to the bottom, at least on the justice department, sport of what of what the president Biden's role in all of this is enrich. The best. Tell of that is that the thing I started to get into before I cut myself work, which is the statement of facts that was obviously written not by the justice department, but by the Biden, lawyers that the justice department stipulated two that they filed with these two agreements because
the statement of fact says that hunter Biden was a working very sophisticated lawyer with a lot of high end clients domestically and and foreign, and that the reason that he got all of this
any and not now mind you. The government is stipulating to this right. The justice department, that's supposedly investigating the bribery conspiracy is stipulating to this court document. They say
the reason hunter got all this money is because he wrote and executed contracts and did consulting for major clients, oversee
these, including in china, romania, ukraine and elsewhere. So that's their version of why he got all this money.
and the reason that he didn't pay his taxes they say is because hunter was drug addled. So the idea is, if you get
to run monday. One say in friday he's a sophistical.
it is high in lawyer, whose just a with doing deals but get em tuesday, thursday and saturday, which must be taxed days. Those are the days he's at the crack house and an you know he can't function. So that's that's the depiction of hunter that the government agree to the Biden. Justice department agree to and now tell me how it conceivable that they are going to come back after agreeing to them
and say you know on second thought, I think what happened here is hunter got all this money, because these-
The foreign elements were trying to pay Joe Biden and the reason he didn't pay. His taxes is probably like the same reason that they cut the big payments into small payments and shot them through twenty different accounts and then paid nine different biden's, which is they were trying to hide the source of the money. If that's, what your investigation shows, which is everything that we know about the evidence that we're seeing from the house you never in a million years, agree to that statement of facts that they filed in court yesterday, but that's according to
Biden, justice department, that's the version of what happened between two thousand and fourteen and two thousand and nineteen all right. Well, that's all the time we have thanks
one for listing, and thank you anyway thanks for it,
Transcript generated on 2023-08-10.