Roman Storm Verdict: A Turning Point for DeFi | Jake Chervinsky & Amanda Tuminelli

David:
[0:03] Bankless nation i'm joined by amanda tuminelli and jake shervinsky two of my favorite lawyers in the crypto space and i'll say individually they are both great but really when you bring them together there is a greater than the sum of the parts moment i think when you guys uh come together on the podcast because you guys have just worked together for for so long amanda jake welcome back to bankless awesome

Amanda:
[0:22] Back thanks for having me

David:
[0:24] Okay so we are of course on the heels of the Roman storm fallout,

David:
[0:28] which we thought was going to be end of the story. It seems that we are actually in the middle of that story because there is seemingly going to be an appeal.

David:
[0:36] At least that's the words that we hear from Roman as he walked out of the court case. Jake, maybe I'll kind of just start with you. What's your first reaction about the verdict and where we have landed at the end of the Roman storm case?

Jake:
[0:49] Well, so my first instinctual reaction is to be pretty devastated by the news that Roman was convicted on literally any account whatsoever. I do not think that any DeFi developer in the United States who did what Roman was accused of doing and what the government showed that he did in court, which was basically nothing more than build a non-custodial protocol that bad guys happened to use without his control and without his ability to slap them. It's insane to me that someone who has done that would be prosecuted and potentially incarcerated by the government. So my initial reaction is just to be sad for the state of affairs and sad for DeFi. I will say that this is a really good outcome for Roman himself individually. So he was charged with three different counts, money laundering, sanctions violations, and Section 1960 operating an unlicensed money transmitting business. The jury was hung on the first two of those charges. And those were frankly the two much more serious charges from the perspective of what Roman's sentence could be. And it's a great victory that the government was not able to prove its burden on both of those counts. So a great victory for Roman that he does not have a conviction on those two counts. What it means is instead of him facing potentially decades in prison, his statutory maximum sentence is five years. That still sounds like a really long time, but the judge...

David:
[2:11] Compared to 35, yeah.

Jake:
[2:13] Yeah, much better than that. And there's a good chance that in sentencing, the defense will make strong arguments that allow the judge to give him a sentence much less than five years.

Jake:
[2:22] It's even possible in theory that he can end up just on probation. So for Roman, this is a really great result. For the industry, it's a really devastating result to see someone convicted, and especially on this theory of money transmission that the government has been pushing that Amanda and I have been explaining is absolutely wrong and existential for a DeFi for such a long time.

David:
[2:41] Yeah. Amanda, what was your thoughts and takeaways?

Amanda:
[2:43] I think Jake really covered it. I would just add that I've heard, you know, I was once a criminal defense lawyer, and I've heard people say that a hung jury is a success, even if not a victory. And I think that is how it feels to me. It is absolutely a success that the jury did not convict Roman on money laundering and sanctions evasion, which are very serious charges. And also really what the government's theory was in this case, right? Like what they wanted, and if they were compelling would have succeeded in doing was proving that Roman laundered money or assisted people in laundering money in a knowing and intentional way. And the government clearly couldn't do that. And I think that that is a success. That is a success for Roman and his team and the excellent lawyering that occurred at the trial. And sanctions evasion charges are really serious as well. And as Jake said, of course, like Section 1960 is the biggest issue you've heard us talk about for a long time. But that is a more technical, legally nuanced charge. It's not litigated that much. Like we did a review of all the 1960 cases that exist. There just aren't that many, especially not ones that went to trial.

Amanda:
[3:52] So I think that if I had to guess what went on in the jury room is the jury probably thought this was like a compromise verdict. Like they probably thought, well, oh, he did something wrong, right? There's like vibes here that something bad happened because other people did stuff wrong and we have to hold someone responsible. So let's go for this charge that doesn't sound as serious as money laundering and sanctions evasion to like the outside person.

David:
[4:19] I do want to double down on the great victory for Roman. I know that that doesn't really set any hard precedent, but I made up this word when we, this term when we talked to Peter from Coin Center last Friday. It's like a soft precedent that the fact that a developer is not going to jail for writing code. And so, yeah, maybe I'm just trying to really find out the silver lining here. But the soft precedent that a software developer, United States software developer,

David:
[4:48] is going to go home and hang out with his daughter and he's not going to go to jail feels good to me. Maybe we can't really lay any legal foundation on that. But maybe, Jake, I can just get you to react to that. Maybe I'm just trying to make lemonade out of lemons here.

Amanda:
[5:02] I fully support you being positive.

Jake:
[5:04] That just doesn't make a lot of sense to me because he was convicted on a charge that applies to him for having written code and he is facing jail time. He's going to sentencing. So I think it's hard to cast it as that much of a victory. I also, I think Amanda's absolutely right to differentiate between a victory and a success. Victory implies some finality. And this is not final, right? As we are discussing this now, we are waiting to find out if the government is going to retry those two counts. Now, we certainly hope that they won't. And my impression is if they felt that they had good evidence or if they did have good evidence showing that Roman had actually done something bad, right, that he had been colluding with some bad guys to launder money or to evade sanctions, we would have heard that in the first trial. And I find it hard to believe that they would want to go to another trial without having any kind of smoking gun evidence, which so many people figured they would spring on us during trial. That said, this is in some ways a political decision more than it is a legal decision. And you never know what a jury will decide. And the government may decide that they want to take those two counts back to trial and try to convict him of all three of the original charges. So I do think it's a success that this jury did not find that the government

Jake:
[6:14] had met its burden on those two counts. That doesn't mean that we're done with this issue or that we should, you know, rest easy feeling like this is over.

David:
[6:21] If the government does decide to go and recharge Roman on those two hung accounts, it's because of what you're saying, because there's no smoking gun, there's no thing out there that the prosecution feels like they didn't really give their time of day in the first court case because of that, because they're just trying, if they did that, they would just be trying to re-roll the same dice again, right, just to get better odds, get a better jury. There's nothing net new that would come from a second trial. Is that correct?

Amanda:
[6:51] And partially yes, partially no, because they can bring new witnesses. Like they can call a totally different bank of witnesses. And so in this trial, we saw them make a pretty devastating error in calling a witness that they were alleging that her hacked funds went to Tornado Cash and that was disproved by many people, right? And her hacked funds, there's actually no reliable evidence that they went to Tornado Cash. I imagine they would not make that mistake in the second trial and would not call her. I also think they might call better expert witnesses who were able to do a better tracing analysis than the witnesses that we saw at this trial. So they get a full redo if they want to do that. I don't, I personally don't think that they're going to retry those charges. I think they should be scared.

David:
[7:37] You think this is set?

Amanda:
[7:38] Well, it's not set because now Roman gets to make two different motions called a Rule 29 and a Rule 33 motion. So even before we get to the appeal, we still have more arguments that Roman can make, even on the count of conviction, Section 1960. And the judge herself said the stability of the verdict is in play, if not before her, then before an appellate court. So she's even acknowledging that this verdict is still in. On shaky grounds, right? And she said the Section 1960 issue is the most interesting issue, which I think is a judgely way of saying, maybe I might have got that wrong and maybe the arguments against this are actually pretty good. So I think there's a lot more ground to cover before this is final and before we're even talking about a redo. Like the government's not going to, I mean, there's really no set rule on when the government has to make that decision, but...

David:
[8:29] Oh, really? They have an open window to recharge Roman on those two accounts for as long as they like?

Amanda:
[8:33] I've looked. I can't find a rule that says like the day by which they have to make that decision. But what but I if I had to guess, right, they're not going to make that decision before these motions. They're going to want to see how these motions come out, because if they win or lose on those motions, right, either that conviction stands or doesn't. So I think it would it would probably bear on their decision on whether to bring the rebring the other charges.

Jake:
[8:56] Yeah, I also have looked and have not found any deadline for the government. In typical cases, It takes them a few days to a few weeks to make a decision. This is not a typical case, so who knows what will happen. They can't wait forever. Just to say the Speedy Trial Act does apply. This is a statute that basically requires the government to bring a prosecution to trial within a set period of time in every case. The Speedy Trial Act applies to retrying a case. It gives them, I think, 70 days to go to trial after the last trial ended. But that's a very fuzzy deadline. Judges delay it all the time for any number of different reasons. doesn't mean they're actually going to go to a second

Jake:
[9:33] trial in that time, but there's at least some statutory pressure for them to make a decision. We're not going to be waiting around months and months and months to figure out what's going to happen next.

David:
[9:41] Let's dive into the 1960 issue specifically. Jake, you said that that was just a devastating outcome. And I mean, we've had you on Bankless five, six times. I think the topic, the word money transmitter has come up in all of those times. Same with Amanda. That's been the overarching fight, I would say, that we have been fighting as a crypto industry is to make sure that our software developers, our smart contract developers, and even surrounding infrastructure, like running a node, doesn't require being a money transmitter. And this is something that is just inherent to the nature of our industry. Blockchains are asset ledgers. If you touch a blockchain, you are touching an asset ledger. If touching a blockchain or in any sort of way means that you are a money transmitter, that means our whole industry is illegal and everyone needs to file as a money transmitter, which from out from the This ethos of what we're all doing here just is untenable. And, you know, one of the reasons why you're saying I believe, Jake, you're so devastated is because this is exactly what happened to Roman. He uploaded code to Ethereum and then he just got charged with being a money transmitter. And that's why you're saying that this is like such a devastating outcome here.

Jake:
[10:48] Yeah, well, and I don't want to get out ahead of you, but I do just for folks who haven't been paying close enough attention to the Section 1960 issue, I think this is the moment for folks to wake up and start paying attention. So let me just explain in brief what this issue is and why it is so unjust in the specific case of Roman Storm.

Jake:
[11:06] There has always been on the books this law that requires folks to register with FinCEN and do anti-money laundering compliance if they are a money transmitter. Being a money transmitter means having control of customer funds. Amanda and I wrote 40 pages of in-depth legal analysis along with one of my colleagues, Dan Barabander, explaining exactly why that is the case. It is also what FinCEN, the Treasury Department that enforces this law, said to all of us in DeFi explicitly back in 2019. At the time I was a lawyer at Compound, this was the instruction from the government that every single company in the DeFi space decided to follow for years and years and years. The Department of Justice even put out an enforcement framework in 2020 referencing this FinCEN guidance, not taking any issue with it, and seeming to agree with FinCEN's interpretation that money transmission requires control of funds. Roman did exactly this, exactly what he was told to do by the government. Then the Biden administration decided to sanction the Tornado Cash Protocol and to prosecute the developers of Tornado Cash, not honestly because of some legal issue or some change in policy, but at a moment where the administration was looking to seem tough on crypto and to seem tough on North Korea. This was a political prosecution from day one.

Jake:
[12:30] And the Department of Justice, in order to justify this 180, this total reversal on the definition of money transmission, came out with a brand new definition that no one had ever heard before, that they stuck into a reply brief or an opposition brief on motion to dismiss, saying, we actually don't think that money transmission requires control. We think it's enough to be a money transmitter if you facilitate transactions rather than control user funds in those transactions. And the government pushed this theory forward saying that either Roman should have known that this was the law all the time, or if he didn't know, that's his problem. He's liable even without having any mens rea, any intent or knowledge that he needed to get a money transmission license, despite the fact that FinCEN said he did not need one. This is why this is so unjust. It's also why it is a threat to literally every single software developer in the United States of America who wants to build a non-custodial protocol. So to see the jury convict Roman on this theory is very devastating. The last thing I'll say, and then I'll stop rambling, and I'm sure Amanda has more to add on Section 1960, is that the jury was bound by the law as the judge described it to them.

Jake:
[13:45] So there were jury instructions before the jury deliberates, and Judge Thala, the trial judge, accepted the government's theory of money transmission, that control is not required. The jury is bound by that. The jury does not decide law. It applies the law as given to it by the judge to the facts as the facts are shown through trial.

Jake:
[14:05] And this is why I think that the judge's ruling is so susceptible to appeal. In addition to all the other reasons that Amanda was saying, it's also susceptible to being reversed through a post-trial motion. So I'll stop there.

David:
[14:17] Amanda, want to add anything there?

Amanda:
[14:19] I think Jake covered it. I'll just highlight the end of what he said, which is when Judge Fela instructed the jury. So after closing arguments, there's a very long jury charge where the judge tells the jury what the elements are of each of the counts that they have to decide. When she gave that jury charge, she did not include a custody or control requirement for Section 1960. So that wasn't even a question that the jury would have known to consider, right? They've never heard of most of them, I'm sure, have never heard of money transmission or Section 1960. So that will be ripe for appeal and for challenge her jury charge, like the way she has described it to them, in addition to the way that the government argued this in the motion to dismiss the indictment. So I think there's just a lot of ground here to challenge the way that the jury was given the case and the way that the government argued it.

David:
[15:12] Yeah, Jake, you know, I have talked in DMs and you've also articulated it here that like you are devastated that this is the outcome. And like this is a very bad outcome for DeFi because we had one of our software developers charged for money transition. It's literally our worst fear. But also, you know, both of you and Amanda are talking about there's so much grounds for appeal. And then also Roman has said, I'm going to appeal.

David:
[15:36] And so my takeaway, and I'm not a lawyer, so I'm the most naive person on this panel here. But like my foundation has been like, I am kind of stoked because of the strength of the grounds for appeal that we have. In addition to the fact that we have Roman, who's like, yes, I'm totally going to appeal this. He didn't even seem to have blinked. He's walking out of the courthouse.

David:
[16:00] He talked to that one reporter, Eleanor, and he said, oh yeah, I'm going to fight this for sure. And so even when he realizes that he's in the middle of this game, not at the end of the game, and he was charged, he is still of a mental readiness to take this appeal to where it needs to be. And when I have both of you guys telling me that the grounds for appeal is so strong here, I'm kind of stoked. So maybe temper my position here. Tell me why I'm wrong. Tell me why I'm being naive. But I agree that we're in a bad equilibrium in the present moment. But you know things will move forward and i'm kind of optimistic for what could become based off the situation that we found ourselves in today jake what do you think about that well

Jake:
[16:43] First of all i'll say this is a good moment for my usual disclaimer i am not your lawyer i don't represent anyone listening so i don't want anyone to take what i'm about to say as legal advice or an interpretation of the law as applied to their conduct if you need a lawyer get your own lawyer all that said i do agree i think there are really strong grounds for appeal the first one is the one I mentioned the issue we've been talking about for all of these months and now years, which is that Judge Fela was just wrong on the core question that goes to the heart of the one count on which Roman was convicted, whether he could be operating a money transmitting business, even though the protocol that he developed was non-custodial. I would love for the Second Circuit Court of Appeals to get its hands on that issue. We don't have clear circuit court precedent on this issue. And to have the Second Circuit say, Judge Fela got this wrong, here is the proper definition of money transmission, would not only be great for Roman, it would be amazing for the whole industry, it would give us some amount of clarity, although not as much as we would get from legislation, which we should talk about in a little bit. So I would love to see that happen. That said, that's not the only ground for appeal. And it's maybe not even the one that's most likely to succeed. Amanda followed the trial a lot more closely than I did and was a much better and more experienced litigator than I was before I became a crypto lawyer. So maybe I'll let her talk a little bit more about what the issues were that came up in trial that might lead to this getting overturned.

Amanda:
[18:05] So I think what Jake is alluding to is one of the major issues that I see being ripe for appeal, ripe for challenge on these motions is venue. So the government can't just bring a charge against you wherever they want, right? They have to bring a charge against you in a place where the venue is appropriate. There has to be some connection geographically to where the crime supposedly occurred and where you are and where they bring the case. And in this case, there's really just not much evidence that anything happened in Manhattan. the Southern District of New York. It's really thin. It's like Roman was texting with people who said they were in Manhattan. Like it's really thin evidence of venue. And the defense challenged that multiple times. They challenged it at the motion to dismiss the indictment. They challenged it in the week before trial. They challenged it during trial. So that has been well preserved. I think that is actually one of the best grounds

Amanda:
[18:58] to get the verdict overturned. And then I will David, I'll just go back to something that you said. What matters most here is how Roman is feeling. As a lawyer of any kind, your client is the person you're advocating for. That is the person who matters more than anybody else to you in your advocacy work. So the fact that Roman came out of this case feeling like he was well-represented and he had real advocates on his side is the thing that matters the most. And if he is comfortable with the outcome of this case, that is what controls.

Amanda:
[19:30] And the fact that he feels fired up and he feels the support, which all of us have contributed to, that is what matters. So I just wanted to echo that. I know Jake agrees with that too. Like it's Roman's feelings that matter the most and we're all going to help him support him in whatever way he wants to challenge this.

David:
[19:46] Yeah. Yeah. As Roman leans into what is going to be another battle, I think that is going to be a call to arms to the broad Ethereum crypto community to once again put more support because we have this one man. It's like the United States government, Department of Justice on one side, Ethereum on the other, but it's really Roman Storm that is at that single point between those two positions. And he is the fighter pushing against that force with our support, but he was going to ultimately need our support. Amanda, as I understand it, there's different ways to get precedent. And the precedent that is established in this court case with Roman and the whole money transmitter 1960 thing is like kind of weak precedent. And then if we appeal it, it can go to the second circuit court and there's like a different level of precedent. Can you talk about, illuminate that conversation of where, how, like where precedent is established, how strong that precedent is. And I'm, I'm so naive about this. I'm not even sure I'm asking the right question. I'm kind of just pushing you in a direction. Maybe you can kind of pick up that ball and talk about how we can get the precedent that we want to establish and where that needs to happen.

Amanda:
[20:48] No, your question's exactly right. There are different levels of precedent and some precedent is binding, meaning that everyone after that in that court has to follow it. And then there's precedent that is persuasive, meaning it's just like great reasoning that people should take into account when they're deciding things. The most binding precedent that exists is the Supreme Court, right? That's the highest court in the country. You have to listen to what the Supreme Court decides. And then the lowest level of precedent is that persuasive precedent at the district court level. And that's what we have here.

David:
[21:18] So that's the outcome of the Roman Sorum case is persuasive precedent.

Amanda:
[21:22] And OK, which means in other other courts in the Southern District of New York, so other courts in Manhattan federal court can look at this verdict, can look at the decision on the motion to dismiss the indictment and be persuaded by the reasoning of the judge in that in the in this case. And I would say that even in this case, Judge Vela did not issue a written decision on the motion to dismiss the indictment, which means it's actually even harder to rely on her reasoning. You can order the transcript and look at it. But I think there was, I mean, this is total speculation, but I think that she didn't write an opinion on the motion to dismiss the decision because she didn't want to be cited with the decision she came to. But anyway, other courts in the Southern District of New York can follow this reasoning, but they can also disagree with the reasoning in this case. If it goes to the Second Circuit, which is the Court of Appeal, the Federal Court of Appeal above the Southern District of New York, and the Second Circuit were defined, in order to be a money transmitter, you need custody and control. That becomes binding precedent on the Southern District of New York and other

Amanda:
[22:27] district courts in the Second Circuit's geographical location. So it's just like each level you go up, you like level up to a higher level of precedent for the courts below that level.

David:
[22:38] Is that why they're called circuits? It feels like, you know, you go one next higher circuit and all of a sudden your precedent is like one more level higher.

Jake:
[22:45] The lore that you hear in law school is that the judges used to ride a circuit because they covered such a big geographic location. They will like get on their horses and ride the circuit from one courthouse to another to hear these appeals. That's true. I'm not sure, but that's the story. Okay.

David:
[22:59] All right.

Amanda:
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David:
[26:08] What happens next? And then what are we hopeful? What are we hoping is the fallout of that if he like wins? And then also maybe perhaps with some more balanced, reasonable outcome taking into how things can just go in any direction. Amanda, I'll start with you.

Amanda:
[26:23] So just procedurally, like what will happen next is the judge will set a deadline for this Rule 29 and Rule 33 motion. A Rule 29 motion is a motion for a judgment of acquittal. It's basically saying from the judge, set aside the jury verdict and acquit Roman Storm. And then a Rule 33 motion is for a new trial. So those motions will get filed soon. I don't think she set a date, but like in the next few weeks to months. And then there will be a decision on that. like the government will oppose, Roman will get to reply, there will be a decision. Then after that, there will be sentencing, assuming the conviction stands. If it doesn't stand, obviously the case may be over. If the conviction stands, then they're sentencing on that one count, and then there will be an appeal to the Second Circuit. So that's the procedure going forward. What I want to happen is for them to win on the Rule 29 and Rule 33 motion and overturn this conviction.

David:
[27:20] And Roman has said that he believes that if he appealed the case, this was even before the guilty verdicts came in, that he believes that he has a 99.9% chance of that appeal getting accepted. Would you agree with that sentiment?

Amanda:
[27:31] 99% is high. I think anything in criminal court, there is no such thing as a 99%. Just because people sometimes have crazy interpretations of things. But I think it is high. It is greater than 50%. I'll go with that. And I think it is more likely than not that this appeal is successful. Okay. That is where I am.

Jake:
[27:53] Yeah, I was just going to add, maybe on the more idealistic side, like, what do we want? Like, what are our, you know, biggest dreams and hopes here? And I think for me, there are three things that we want. The first is we want the government to tell us that they are not retrying the money laundering and the sanctions charges, right? They need to get with the program and understand that the Department of Justice, by its own statement from the Deputy Attorney General's office, is not a digital assets regulator, and they should not continue prosecuting Roman for what is essentially a regulatory issue that they should never have gotten into in the first place.

Jake:
[28:26] The second is either the government should dismiss the Section 1960 charge, which they still can do even after conviction, or the president should pardon Roman. And again, this is not the same as winning on a post-trial motion or winning on an appeal. This is a recognition that the prosecution was faulty from the start. And the fact that a jury was confused by a judge's jury instruction about a legal issue that the judge misunderstood and then the jury convicted Roman does not change the fact that he should not have been prosecuted and there is still time for the government to undo this damage they have done or for the president to recognize that his own U.S. Attorney's office in New York is essentially going rogue and he can fix this by pardoning Roman. So that would be the second thing we want to see. The third isn't just about justice for Roman. It's about protecting the rest of the industry from something like this happening again. What we need is for Congress to amend Section 1960 to clarify that money transmission requires control of funds. And this would stop the Department of Justice from ever doing anything like this ever again. And that is absolutely critical. There are other things that the DOJ might try to offer the industry or the White House might try to offer the industry to make us feel better about the fact that this prosecution happened, but there is nothing that this administration or this DOJ can do that a future administration cannot undo.

Jake:
[29:53] And so in order for this industry to be protected from this type of prosecution in the future, Congress must take action and we must speak with one voice in demanding that Congress do so in any crypto legislation that moves forward from this point on.

David:
[30:07] Now, with all three of those things, how far-fetched do you feel like they all are? I feel like there's different, there's varying degrees of how aspirational those are. I mean, I think, again, you're going to have more context than me, but The pardoning of Roman Storm by Donald Trump, while we've seen him pardon Ross Ulbricht, and that was great. Roman Storm is a little bit different, especially when it comes to the fact that the opposing side of Donald Trump would be able to just look at who and what Donald Trump is pardoning. It's a money laundering service that North Korea used. Optically, it's just a harder pill to swallow, I think, than Ross Ulbricht. And that's just my interpretation. But maybe, Jake, you could go through those three things again and talk about how realistic or unrealistic they are.

Jake:
[30:52] Well, so I totally take your point, but I'm actually going to resist the urge to throw probabilities onto each point. There's nothing that we as an industry cannot accomplish if we set our mind to it. We have a president who says this is supposed to be the crypto capital of the world. I think that he means it when he says that. And most of the actions that his agencies have taken have been directly in line with that. And week by week, month by month, there is more progress in the agencies and also in Congress, which is passing pro-crypto legislation with bipartisan supermajorities to ensure that crypto can thrive in this country. So to me, this isn't a matter of what are the probabilities of success. This is a matter of all of us putting our mind to achieving a result that we know is necessary in order to accomplish what the president of the United States says he wants to accomplish, which is to make sure crypto thrives here in the United States.

David:
[31:43] Well, I can definitely get behind that sentiment because my sentiment coming out of the Roman Storm case in the first place was, oh, this goes back into the crypto industries, like that ball is back in our court and we can just do things. And, you know, what we've learned is we have concerted political firepower as an industry and we can change the outcomes of things if we so want. Amanda, you're nodding your head. What are your thoughts?

Amanda:
[32:08] Yeah, to the point of we can just do things like we can all just call our senators and tell them that if they are interested in being a friend to the industry, they need to make sure that there are developer protections in the market structure bill that the Senate is writing right now.

Amanda:
[32:24] So the DeFi Education Fund, along with many other members of the industry, have come together to propose developer protections to make their way into market structure. Clarity did some of this, but I think we can do even better and include the Section 1960 fix that Jake was alluding to. So there is the Blockchain Regulatory Certainty Act, which I'm sure Peter talked about on your pod last week, which would define money transmitting in a way that is appropriate, meaning that you need to have custody or control in order to be a money transmitter. But we need a more fulsome fix to make sure this doesn't happen again, which is why we need to amend Section 1960. And we are proposing that amendment. So the industry can make it clear that we won't We won't settle for a market structure bill that doesn't have those fixes in it. And that's what, like, if I had one wish coming out of this,

Amanda:
[33:14] it would be that everybody would align on that and making sure that developers are protected. These are people building neutral tools. This is not, like, the protection of people creating illicit finance, which is how some members of Congress would like to describe it. Like, that's not what anybody is talking about. We are talking about people who are building infrastructure, blockchain technology, whatever it may be. And we should all be on the same page about those protections.

David:
[33:40] Let's get into that regulatory conversation. There's the Clarity Act, and then there's the RFIA, the Responsible Finance Innovation Act. Maybe, Amanda, if you just give us the sit-rep of those two things, where are those two things in their lifespan?

Amanda:
[33:54] Sure. So Clarity was the House version of market structure that passed out of the House, meaning the House got enough votes to say this version of market structure has passed the House. It then goes to the Senate. The Senate just released a discussion draft, which is titled differently. It's the RFIA. And that is now the Senate's version of market structure. It looks a little different from clarity, but it's still being worked on. Right now, the Senate is working on that draft and lots of people have had the opportunity to comment on it. we put in, there was an RFIA request for information from the Senate. Lots of people in the industry responded to that. So they are seeking input and considering that input. We will probably see another draft and then there will be a markup at the end of September, which will look more final than the draft that we last saw. So there was lots of time between now and then for people to make their voices heard.

Amanda:
[34:47] One thing that the RFIA and Clarity both had was the Blockchain Regulatory Certainty Act, which would protect developers from being considered money transmitters inappropriately. But one thing that I was a little disappointed to not see in the Senate version of market structure were the developer protections that Clarity actually did include. And there was some back and forth on these developer protections in Clarity, but ultimately there were what they call decentralized finance activities. There were two sections that would have protected developers just for building blockchain technology, for developing and publishing code, for creating a front end, all of that. And that's not right now in the Senate bill. And it's really important that that make its way into the Senate bill for us to be able to support it.

David:
[35:29] Why do you think that those things got removed? Who advocated for that? How did that happen?

Amanda:
[35:34] So I don't know that they were removed. What I have been told is that the Senate released a skinny version of the bill, meaning they didn't put out the most comprehensive version of the bill they could. They wanted to gather more information before including everything they were going to include eventually. I don't know the reality of the situation, but I would say that we have all made ourselves very clear that we expect to see the developer protections back in the bill if the industry is going to support it.

David:
[36:05] Okay. So the sausage is just being made. And in this one present moment, the developer protectionist just happens to not be in the sausage. There's no grand conspiracy here. Elizabeth Warren and the banks didn't come and strip it out. And so we were just, you know, patiently waiting for, of course, the developer protections are totally going to make it into the bill. And as an industry, we are going to push those, we are going to help with that part of the bill being put back into the bill. That's my understanding.

Jake:
[36:33] That's hopeful. And I think we should be hopeful and we should assume good intent. Obviously, like nothing is real until you see it in text. But I do think the reason for this is because the two bills just started from

Jake:
[36:46] a different foundation. Clarity was based on FIT 21, which you may remember from last Congress. The RFIA is based on the previous RFIA, which is the Lemmis-Jillibrand bill. So, you know, it just so happens that the Senate did not take up the draft that went through the House. But I do think that we have folks in the Senate who deeply understand these issues and hopefully they'll see fit to make sure that DeFi gets protected in whatever bill ends up moving forward.

David:
[37:09] Okay, so assuming that these bills go through with the developer protections, and so we get what we want out of Congress. Yay. But this is a separate path from, speaking from Robin, this is a parallel path to getting developer protections where even if this does go through, this doesn't mean that Roman Storm's guilty verdict is invalidated. He's still guilty. So he still has to appeal that case for him to be not guilty of the money transmission. And so since Roman has said he's going to fight it, that's also going to happen. So we're having two paths towards a barrier of defense against our open source developers. Maybe Jake, you could just put a little bit more clarity on this.

Jake:
[37:49] Yeah, so I'm going to be a little out of my depth because I haven't dealt with this issue in a long time. Generally speaking, you are right. Congress cannot overturn a conviction by passing new law. That said, there are cases where new legislation is retroactive. And typically, this is when an amendment to a law is viewed as a clarification rather than a new substantive change to the law. And so it could be, again, not legal advice for anyone that if Congress clarifies Section in 1960, then on an appeal, the appeals court looking at Roman's case would say, well, what Congress originally meant when they defined money transmission was that control was required, therefore the original conviction was defective. So it is possibly a way that Roman would still be able to benefit, but it's definitely not the most direct path. And of course, Roman can't sit around waiting for Congress to pass legislation because it's a really hard and arduous process. So, you know, we fully support him in every way pursuing his post-trial motions and his appeal.

Amanda:
[38:48] But just to echo, there is one more thing that can also happen, which is the Department of Justice could decide to dismiss this conviction and say they're not going to retry those other two charges. That is something that this administration could do through the Department of Justice. The Department of Justice can also release updated guidance and update. There was that Blanche memo, I don't know if you remember hearing about that, but like the Blanche memo touched on Section 1960, but did not fully answer this question. And they could do the same thing. They could release another memo that says they are no longer going to go after software developers for money transmission and actually define money transmission appropriately. That is a thing that this administration could do.

David:
[39:29] Why would they do that, though? Because isn't it the Department of Justice that's going after Roman Sorm in the first place? So why would they just all of a sudden have a change of heart?

Amanda:
[39:35] Well, this administration has been saying it was the Biden DOJ that indicted Roman Storm and it was the Biden DOJ that indicted the Samurai Wallet developers. So if they want to draw a line in the sand between what the Biden DOJ was doing and what this DOJ is doing, they could disavow the Biden DOJ's decision to bring these two cases. I think that that could, like politically, it would make sense for this administration to do that. And also because people are asking for it, right? The industry is asking for this guidance. It's asking for this clarity. And this issue arose in via criminal indictment, not via some other announcement. So they could correct the record and make it clearer going forward what the basis will be for future criminal prosecutions.

David:
[40:20] So the Roman Storm case had some momentum just based on the fact that it got started during the Biden administration. And then maybe the Trump administration comes in and they kind of just let that momentum roll. They don't really, they kind of are hands off because the case had already started. But now that there's like an actual circuit breaker in the case where now they have to actually restart this thing, now it's actually the ball is back into actually Trump appointed DOJ members to decide whether or not they want to continue to pursue or back off Roman. And as they've said, they want to make crypto the capital of the United States or the United States the crypto capital of the world. And so there's actually like reasoning for them to actually...

David:
[40:59] Pick up and move in a different direction. And that's one way to make sure that

David:
[41:03] Roman doesn't get convicted of the 1960 charge, the money transmission charge. And there's Congress, and there's Roman's appeal. And so we have like three different ways to all kind of arrive at the same, not the same outcome, because it would be cool if Roman appealed and won, because that's precedent. It would also be cool if we got legislations passed through Congress, because that's another very strong layer of armor. And those two things, I think, is a very strong foundation for this to never happen again. And so that's that outcome where there's two layers of precedent being set. One is literal legislation and one is Roman winning the appeal is like the happy outcome that is kind of firing me up where I'm like, oh, that is such a strong level of clarity and precedent that I don't know how we could be any happier than that. And then the DOJ just changing his mind and backing off is just kind of like a cherry on top in my mind. I agree with that.

Jake:
[42:00] I think that there are many different ways that we can move forward from here and achieve an actual victory. I want to emphasize one thing that Amanda said, though, about the likelihood that the Trump administration would change its mind even at this point. I think one of two things must be true. Either the Trump administration genuinely is okay with this prosecution at the highest levels, right? that there is not enough willpower within the administration to undo what has been done here. That is certainly possible. The other possibility is just that our outrage as an industry or our explanation of the issues and how existential they are did not reach high up enough in the administration in order to get a reversal of what the Biden administration and Attorney General Garland authorized.

Jake:
[42:46] And I think that that is pretty likely. It's not clear to me that the folks who are handling this in the administration understood, for example, the extraordinary lack of real evidence the government was going to have. There were so many people, as Amanda and I were talking with various folks in government and outside of it, even in the industry, who believed that there was some smoking gun, right? Like Roman texting with the Lazarus Group as they are performing a hack, explaining to them how they can wander all this. Right. And like, that is not what the government showed us in court. And simultaneously, I do think that the industry's focus on this case has become much more significant as we saw the trial play out and as people got educated on these issues. And I also think just looking at the decision-making structure within the government, how you move the right levers to get a case like this to go away, well, in part, it goes through the Southern District of New York, not just main justice here in DC. That means engaging with Jay Clayton, who is currently in charge at STNY. You know, he may have his own views about crypto and he may not have been getting enough pressure from folks in the White House or elsewhere in the administration to change perspective. And I do think that if we bring all of our force to bear on the administration right now, we can achieve that result. So we shouldn't give up on that as one of many different strategies, as you said, to achieve justice for Roman and also for the industry.

David:
[44:07] Maybe we can zoom out and close this episode's focus on Roman and talk about Congress and politics specifically and the Trump administration. How far are we? We are like eight months into the Donald Trump administration and its leadership towards crypto. How would you evaluate their follow through on their promise towards crypto? Would you say it's met your expectations, it's exceeded your expectations, any arena that they have been weak on? Amanda, care to comment on that?

Amanda:
[44:38] I would say, generally speaking, the administration has delivered on many of its promises, right? There have been a number of executive orders. There is the most recent, the President's Working Group report. There has been a lot of attention paid to digital assets. We passed Stablecoin, right? We passed the Genius Act. That is huge. That is the first ever crypto law that is actually the law of the land in the United States. Like, I do think that there has been as much focus as I expected there to be. I would like us to have made more progress in market structure, in these kinds of protections, in the way that this administration and members of Congress think about digital assets. Like as we do a lot of education, like we do demos, we go into members of Congress's offices and show them like this is what DeFi is. and I'm still getting a lot of feedback that people think DeFi is just crime. Like they just, like we have not moved beyond this initial assumption that if you are doing DeFi, you are somehow facilitating crime. So I would like to see more progress on that and that's education, right? That's on us to keep doing all of that but it's also on members of Congress to educate themselves and understand this technology. So I guess like,

Amanda:
[45:54] Generally, I think that they're doing a really good job and that even more can be done. And to get the durable win that we need to get market structure passed and get

Amanda:
[46:03] durable protections is what is most important in this next phase. Because if we do have a different administration with a different view in three years, all of this like good guidance, good agency stuff could go away very quickly. So that's why we need there to be legislation that is not easy to undo, right? that is going to probably be in place for 100 years. So that's why our focus is really making sure that those developer productions get into market structure and pass.

David:
[46:31] Right.

Jake:
[46:32] So I totally agree with that. I think Amanda totally nailed it. I think the administration has done a huge amount for crypto. The way that we feel right now talking about crypto, even after the storm trial, is just so different from how we felt a year ago as Gary Gensler was trying to destroy our industry. So I think there's been massive progress. A huge amount of that has come from direction from the White House, but also specifically from folks at the agencies, right? In a way, it's been a decentralized pro-crypto movement in the government where, you know, Paul Atkins at the SEC gave his speech about Project Crypto. We're going to upgrade the entire financial system to be on-chain and the SEC is going to make it happen. So things like that are totally awesome. And the White House has been involved at key points, such as President Trump, at least based on the reports, personally getting involved to make sure that the Genius Act passed through Congress. That said, where the White House has not focused, there has not been as much progress. And this is one of those examples, the issue around money transmission, where it seems the administration has just not gotten what appears to be a rogue unit of the DOJ in line with the administration's goals. So I think we want to see that happen. And then just to say the same thing that Amanda said, but slightly differently, I guess.

Jake:
[47:47] Nothing that the administration has done protects us from the next administration. And if we're really going to be the crypto capital of the world, then we need to do more of that and not just depend on, you know, Republicans in the Trump style to maintain power forever, because that's not how this happens. And so I think folks are in the industry are really excited about how things are going under this administration, but also forgetting a little bit how bad it was a year ago and how bad it could be three or four years from now if we don't make this happen. So I think we can't just get complacent and trust that the Trump administration is going to take care of us. We've got to keep working as hard as we possibly can to score these wins that will keep us going forever.

David:
[48:30] Yeah, Trump's got three more years, which seems like a pretty good amount of time for crypto, the industry to rack up some more wins. And I hope we do. But then also, let's kind of play out what might happen if the Democrats come back in in 2028. And in addition to them just coming back into power, they are unchanged on their stance towards crypto. So we're kind of going back into a crypto dark ages, anti-crypto hostility in politics. Maybe we go back into that era, that kind of phase, that environment. What likelihood? How would you describe whether you think that's likely or not? Is there any indication that if the Democrats win, they will be hostile? What can we say about a potential Democrat leadership in 2028 as it would relate to crypto? Or is it just too far away? Amanda, maybe I'll start with you.

Amanda:
[49:19] My fear is that it's not 2028 that we're talking about. We're talking about a year and a half from now when the when members of Congress could shift. Right. There will be an election year next year and people will start to think about what the House and Senate look like. And like, yes, 2028 is a huge year. But I'm just saying there are times before that that we also need to be worried about in terms of the makeup of Congress.

Amanda:
[49:42] We have done a lot of work to educate members. We are nonpartisan. We talk to everyone. I am still seeing a lot of concerns from Dems, but not just Dems. There are also plenty of Republicans who have the same concerns that they put under the umbrella of illicit finance. What I have noticed is that there is a real confusion between cybersecurity issues and true illicit finance issues. So members of Congress hear that there is a hack or they hear that there has been some breach of some kind and they just think like that's a problem with the base code like they cannot differentiate bitcoin was hacked right like there was a hack we can't prevent these things there's nothing we can do right and there is not an understanding of what it means for there to be a cyber security issue that exists in every industry where there is technology and this industry so that's been something we've been really focused on is trying to differentiate that And then also to explain, like, there is this outsized focus on illicit finance in DeFi and in any decentralized system. I'm sure you know all the statistics, right? This is actually, like, a very small part of the overall picture for illicit finance. But there is this outsized focus on it, along with, like, questions about privacy and questions about self-custody and the BSA. So we are working really hard to try to address all these things at once. But it is tough.

Amanda:
[51:00] Like, it's still an uphill battle, even though we do have great allies. Especially on self-custody, especially on privacy. But I think that we just have more ways to go.

Jake:
[51:09] So I agree with that. And I think if Democrats retake the House, which people speculate will, might happen anyway in the midterms next year, and they have these ongoing concerns that Amanda described, it will make it very difficult for us to get market structure or legislation done in the next Congress. This will leave us without legislative protection for the next administration. Then the question becomes, what are the views of the next administration?

Jake:
[51:35] And I think it's impossible to say with any certainty now, because it depends so much on who the president is. And there are Democrats who are very pro-crypto, and then there are some on the progressive left who are very anti-crypto. So just having a Democratic president, if one were to win the 2028 election, doesn't mean that crypto is done for. It just depends on what that individual person's views are, what I will say is most likely to affect those person's views or that person's views.

Jake:
[52:06] Is how much the industry accomplishes in the next few years, not from a policy perspective, but from the perspective of building useful products. And I guess I'll put my venture capital hat on since I spend most of my days at Variant working with founders who are trying to build products and offer services that are going to be fundamentally world-changing, that people will use on a day-to-day basis. And I think if we can accomplish that, if all members of Congress are using crypto on a day-to-day basis, even if they don't really know that they're doing it, but it's just become so mainstream and so powerful, that's going to be our best protection. But if three and a half years from now, it's still mostly Bitcoin as a hedge against global reserve currency risk and stable coins as a better payment rail and meme coin trading in the speculative casino online and nothing else has found product market fit in crypto, I think we have a lot to worry about. So this is as much a challenge for the builders and the developers as it is for any of us working in policy.

David:
[53:07] Well, Jake, I'll echo that sentiment because if the future of crypto is Bitcoin, stable coins and meme coins, I think many of us in crypto have a lot to worry about because we are building our careers, our livelihoods, our futures on the fact that crypto is much more than merely Bitcoin, meme coins and stable coins. So there's double reasons to be concerned about that. So if there is so much at stake with the midterms, let's go back into that we can just do things mentality. What things can we just do to tilt the midterms and just the future of our industry,

David:
[53:40] both in the midterms and later? What things can we do? I know, Amanda, I think you said call our local congressmen, our congresspeople, senators, but anything else, any advice that we can give our listeners or just the industry, in addition to building cool world-changing applications that our congressmen and women and senators use, what things can we do as an industry to tilt things in our favor?

Amanda:
[54:01] So you can vote for pro-crypto candidates in the next year, and you can support pro-crypto candidates. In addition to just like calling and saying, I care about this, if you are building in the United States, you should go talk to your representative for the district in which you are building and say, hey, I am contributing to the economy here. I am a voter. I employ voters in your district, and we really care about this. Like you can go meet and ask for those meetings. You can come talk to us at the DeFi Education Fund. You can join trade associations like the Blockchain Association and Crypto Council for Innovation and the Digital Chamber. There are so many ways to get involved. And if you don't know, like if you're not sure what the next step is, come talk to us and we're happy to help you figure that out. But it's really, really important. We are in a really critical time period as we consider market structure and before this next midterm election season. So if you've even thought to yourself, maybe I should get involved, I would say like use this as your as your call to action to start.

David:
[54:56] Jake, anything you want to add to that?

Jake:
[54:58] I'll just add support the DeFi Education Fund, follow their work, go to their events, make donations. I think DEF is doing the best work of any organization on this issue. I'm biased as a member of the board. Also fund Roman's defense. We have to make sure that he is well-funded and can pursue all of these appeals, post-rural motions, et cetera, without having any issues with funding. So the industry and community have been amazing at making sure that Roman is well-funded. We should absolutely continue doing that. And then I would just say follow Amanda and me on X just to stay informed and keep up to date. There will be moments where it is very important for everyone to, you know, act as one and really pour calls into Congress or, you know, take other actions. And we want to make sure that everyone is aware of that. So please stay plugged in. And I think the best way to do that is by following the two of us.

Amanda:
[55:44] And can I just add one more thing? Romans, another developer in Tornado Cash is Alex Pertsev. He is also on appeal in the Netherlands. I understand like that's outside of the U.S., but I just want to like remind everybody that Alex exists. He also needs funding. He also needs support. And in the Netherlands, the appeal there is a total redo. Like they get to redo all the facts there too. So he really does need support. And I would just say, please don't forget him when you are considering funding anyone associated with open source software development.

David:
[56:15] We will get all of those links into the show notes so listeners can go reference them. Amanda, Jake, thank you for coming on and giving us all the clarity that is so desperately needed in times like this. Really appreciate it.

Jake:
[56:24] Thank you.

Amanda:
[56:25] Thanks for having us.

David:
[56:26] Bankless Nation, you guys know the deal. Crypto is risky. You can lose what you put in, but nonetheless, we are headed west. This is Frontier. It's not for everyone, but we are glad you are with us on the Bankless journey. Thanks a lot.

Music:
[56:40] Music