OA20: What Happened With Ammon Bundy? SPECIAL EDITION

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 20, take 2. How you doing, Andrew?

0:01:23 Andrew: I am I am, I'm great, Thomas. We are actually recording the episode on Friday, October 28th, just as the Ammon Bundy trial news has broken. This is going to slot into our schedule a little differently, but we thought it was breaking news and we thought it was worth doing a special record for you guys.

0:01:42 Thomas: Yes, this is an emergency meeting of the Opening Argument's staff. We got so many requests to talk about this. Thank you guys. I think it's really cool. I mean, my first request was just personally to Andrew, like, hey, let's cover this. Us. And then everybody else was thinking the same thing, which was, hey, you guys cover this. And yeah, we appreciate that you're thinking of Andrew when you think who's a legal expert who can explain something to me, because that's how I think of Andrew. So, yeah, well, hopefully coming at you a bit early. We wanted to just get this out as soon as we possibly could.

0:02:13 Andrew: What we've decided to do is record this special episode, release it as soon as possible so that it's as timely as possible. And then on our normal Wednesday drop date, what we are going to do as a special for all of you is we are going to take part one of my appearance on Atheistically Speaking to discuss the Second Amendment Masterclass. And we're going to release that on Wednesday. That is going to be a free episode for patrons. We're not going to charge you. Some of you have heard it before. Someof you have not. It's something that I think Thomas and I are really, really proud of. And there's some fun storytelling and quizzes in it. So we think you'll enjoy it. So you're going to get a bonus episode whenever you get this, and you're going to get a regular episode on Wednesday as well. That is just part of how how excited we are at the support that we've gotten from everybody who listens to the show.

0:02:52 Thomas: Yeah, we even though it was on my show, it was the first kind of opening arguments of recordings. And we wanted To get them in this feed because the show is growing beyond the original audience. And We want to make sure that everybody knows about it and has access to it. I'd say even if you have heard it before, I I could listen to it again. I've heard it two or three times in editing. I still probably have a lot I could learn from it. So hope you enjoy that. And with that said, let's get to our listener question.

0:03:34 Clip: He who questions training, only trains himself at asking questions. What?

0:03:42 Thomas: All right. Thomas S. asks, what is a Wiener probe? Describe it in great detail. Go. I want to know everything about a Wieler probe.

0:03:51 Andrew: So So, so today, in addition to this being the first full business day after the Ammon Bundy story broke early in the afternoon, FBI Director James Comey sent a letter to Congress. It is not clear to me if that letter was intended to be confidential and was leaked or if that was a public letter. It went to Utah Congressman Chaffetz, who has been sort of a notorious thorn in the side of the Clinton campaign.

0:04:25 Andrew: And, you know, that guy, he's right. He's flip-flopped back and forth on, well, I endorse Trump. Well, I don't endorse him, but I'm going to vote for him and you can't vote for Hillary. And, that's the guy who leaked the letter, whether he was allowed to leak the letter or not. I don't know. But the Comey letter says that there are, as we now know, on the order of a thousand emails that were produced in litigation in a separate investigation, In the investigation of former New York Congressman Anthony Weiner's investigation, not related to allegations that Weiner engaged in inappropriate conduct over the Internet with

0:04:24 Thomas: Oh, that guy.

0:04:35 Thomas: All right, for

0:05:03 Andrew: A 15-year-old girl.

0:05:03 Thomas: About the 10th or 15th time that he's done this.

0:05:05 Andrew: Yeah, but right.

0:05:07 Thomas: It's pretty amazing.

0:05:08 Andrew: But, you know, all the rest of it, you Know, falls under the category of he's talking to adult women. And, you know, that's a little different. So the FBI is investigating that case. His ex wife is Huma Abedin, who is Hillary Hillary Clinton's one of her top and closest, most trusted advisers. So there are a thousand emails that I believe we don't know a whole lot at this point, but I believe are from our buy in between Clinton and Abedin that were produced in this litigation that FBI Director Comey has said might be relevant to the ostensibly now ongoing FBI investigation of Hillary Clinton. And, um, sort of the first question you might ask there to which I don't have an answer is, uh, didn't Comey say in July case closed? Uh, and that, andthat's certainly how I interpreted it.

0:06:00 Thomas: Well, I, I'm worried. I don't know about you, but I'm a little worried that, uh, things are going to, facts are going to change pretty quickly. Uh, so by the time you hear this, it might be different because I'm already seeing things. The first thing I saw was, and maybe you can correct me on this. The First thing I was, Oh, it's open again. It is going to blow the lid right off of all this stuff. And finally we're going to arrest Hillary and probably put her to to death. I think that's what I saw. And then after that, yeah,

0:06:22 Andrew: Right. Yeah. So you, so clearly you've seen the same Kellyanne Conway interviews that I've seen.

0:06:26 Thomas: I go to DonaldTrump.com for all my news. Is that not what you're using? Are we on different? Well, we might be on different sources. But anyway, and then I saw something somewhat recently that said, oh, it turns out this is all BS. The emails weren't even from her server. They're like totally unrelated to that. And someone was making a huge deal out of nothing. So that was the last thing I saw, I don't know. That could be the, you know, left equivalent of the DonaldJTrump.com news of it. So I don'T know. But so I would at least but I'd be a little worried in case, you know, time has passed since you're now hearing this and some more facts have come out. But what I want to know is what is a wiener probe? How long does it take? Is it invasive? And I keep seeing all these headlines with the wienER probe and it's my favorite. It's my favourite Thing. Yeah.

0:06:55 Andrew: Right, right.

0:07:15 Andrew: So, I realized after my bout of swearing in OA-19 that this may be a recurring bit of how many.

0:07:22 Thomas: And I want to know, can you say wiener probe in court, or do you have to say like phallus probe or anything? Yeah, well,

0:07:31 Andrew: But no, so two things. So, number one, the factual background that I gave came from a Washington Post article. So the facts may be changing, but that's my source for that, not a Yik Yak or anything like that. And then number two, what I think is sort of the marker that I would lay down is to reiterate the conclusion that we came to in Opening Arguments, Episode 13, which discussed the Clinton email scandal on the facts that were then available to us. That is before these emails, which is to say the only thing that would be relevant at this point would be if there were email communications from Hillary Clinton to Huma Abedin that overturn Director Comey's previous finding of a lack of intent to confidential information out of the chain of custody.

0:08:25 Andrew: Right. I mean, that was that was the critical part of the the the findings, was that these emails were either retroactively classified, or in the case of nine email chains that number less than 100 emails, that they had a partial marking. They lacked the header, but had a little C in the text. Sure.

0:08:43 Thomas: Let me, uh, Trump's advocate for you for a sec, could it, what if these emails were just confidential emails that she sent out to, you know, like, what if it was discovered that, uh, the emails that were, know, on, in this lengthy wiener's probe, uh, it turns out they, they were just something that was confidential that she sent out. So that would essentially establish intent for her to spread information that she shouldn't be.

0:08:45 Andrew: Sure, sure, sure. Right. Yes. No, that that right. And that's that that was where I was going. So in so order for it to be relevant, it has to be relevant to that question of intent. So, in other words, if it is more of the same, then, you that would not disturb those findings. So the two kinds of things that I think would be interesting would be if there are emails that contain the confidential header, as well as the confidential designation within the body of the emails, or, and this obviously would be the real smoking gun, You know, if there's an email from Hillary Clinton to Huma Abedin that says, oh, hey, look, go out and destroy, you know, these 800 emails. We just got a subpoena. Right. Like that would be that that's that that'S the kind of email that the Donald Trump supporters already think we have.

0:09:06 Thomas: Oh, Okay. Yeah. Yeah. Yeah.

0:09:47 Andrew: Right? And it's and it's worth. Worth.

0:09:48 Thomas: And also while you're at it, please murder, uh what's his name? That one.

0:09:50 Andrew: Yeah. Please murder Vince Foster and go, you know, travel back in time. And, you know, yeah.

0:09:54 Thomas: Hey. Did you murder Vince Foster yet? Can you get on that? I've been wait, just let me know when you're done. Yeah, they finally found it.

0:09:54 Andrew: Yeah, use, use the time machine. Go back to 1996. Murder Vince Foster. Yeah, yeah. So I mean, it's worth it's worthy. It's worth noting that that's the type of evidence that Trump supporters overwhelmingly overwhelmingly think we have, and we do not, right? We have zero evidence. We have hard conclusion from FBI Director Comey that said there was absolutely not intent for Hillary Clinton to remove classified information.

0:10:03 Thomas: Right.

0:10:24 Thomas: Do you think we'll have another hard conclusion on this Wiener probe, or I'm sorry, I can't care, it's it's I promised everybody I would say wiener probe or get you to say wiener probe near 40 times. I'm just gonna have to, I have to stick to it, I'm sorry. I have to stay.

0:10:29 Andrew: I think collectively We have said wiener probe near 40 times, um, I

0:10:41 Thomas: Okay. So go on about the hard conclusion to the, now my goal is to make Andrew not have any idea what he can can or cannot say, and not be

0:10:43 Andrew: Have right I think this, I think that brings this segment to a close, um, what would b interesting would be if there is truly the smoking gun document, uh, or, and, and, and I would define a smoking gun document as a clear instruction to defy the congressional subpoena, or a, what's, what's in between a smoking gun and nothing, right? A warm gun document, a warm gun document would be if any of those emails contain any department emails that have that have the full header plus the C designation Within the text, because that, that would change the facts. Now, again, if there's one email out of a thousand that has the header on it, you I've, I'd made this point before, anybody who has ever worked in the law in any capacity knows that in a large scale litigation you often have, there's a body of law called inadvertent production.

0:11:15 Thomas: Sort Okay, hmm, not

0:11:47 Andrew: And what, what happens is and this has happened And to me, I have been on both sides of it. Fortunately, I've never been the person who's actually sent the document. But, you know, so what you do is in a standard civil litigation case, the other side will ask you, you produce the following categories of documents and you review all the documents and And you produce everything that's responsive, but you get to pull out, you know, communications that are between you and your client, right, that are attorney-client privileged. And every once in a while, particularly the larger the cases and the more documents you're going through, like, you're just looking at this box, it's 9 o'clock at night, you've reviewed 25,000 pages, you flip over two pages, stick together, whatever, and you produce a document that has, you now, a privileged and confidential heading on it.

0:12:34 Andrew: Uh, and then at some point you figure out, oh man, we gave them a privilege document by mistake. And you send a letter and you say, Hey, that's inadvertent production of privilege. We didn't mean it. Please destroy it. Uh, and The Parties typically do that. You know, so I would, I would apply the same thing, right? Like if we're talking about intent, um, it Would demonstrate intent if, if there were multiple documents that bore the full confidential header and the designation of the text. And you can clearly infer that somebody has understood that these were confidential and moved them anyway. But even if only one slipped through, that could still be consistent with the FBI's former finding of extremely careless but not willful.

0:13:20 Thomas: Criminal. Okay yeah. All right, Well, I suppose that answers all my wiener probe questions that I can think of. So I don't know. I guess I guess all just I guess we're done with that. I don'T get to say that anymore. We have to move on to something else. Sad.

0:13:20 Andrew: Yes, exactly.

0:13:32 Andrew: I, I promise this will not be the last time that we look at the Wiener probe.

0:13:42 Thomas: Let's get to our main topic for the day. Ammon Bundy, one of the Bundy's many exploits. They're busy, those Bundy. I don't know if you know this, they they tend to be engaged with law enforcement quite a bit and standoffs, uh, with that, so people will likely remember this National Wildlife Refuge thing they took over. I've heard it called different things, by the way, I don't know how much of it is just trying to exaggerate for the sake of comedy, but I've read it, because they just took over, like, an abandoned, like, bird watching station or something like that, but. But it's a National Wildlife Refuge, and it was in Harney County, Oregon, they took over it, guns, with weapons. They did stuff that, you know, it was a little scary for a minute when I was hearing it on the news. I didn't really know whether it was going to end up being something really serious, like some horrible hostage situation where a bunch of people die, whatever, at the time.

0:14:35 Thomas: Well, it turned out to sort of fizzle in a lot of ways, as you'll remember. I mean, they, they took over and then they realized they needed food to live. And so they sent a bunch of requests for like food and people were sending them all kinds of stuff for fun. I think there was a campaign to send them dildos at one point.

0:14:55 Andrew: My my, my favorite, uh, part of that is the co-founder of your favorite party game, Cards Against Humanity, uh, sent, I believe, a 50 gallon drum of lube.

0:15:07 Thomas: Oh yeah, yeah, I want to note, you know, we do have a lot of new listeners. I just need to note for the record that that was ironic and I hate the game Cards Against Humanity. I just can't have our new listeners think I like the game Cards Against Humanity. So I'm just putting that in there as a, as a legal kind of footnote.

0:15:25 Andrew: Disclaimer, no, right, you should, you should say it in the disclaimer voice.

0:15:27 Thomas: Yeah. Yeah. Disclaimer. Thomas Smith actually hates that game and finds it incredibly boring. Back to our regular programming. So anyway, but it was really funny, that those people are funny. I actually think they, they, they've done a few things like that, and, and that, that is one of those things that I thought was particular. I laughed, I laughed, uh, and it sort of fizzled out, although I do remember, um, one person was actually killed, and it's weird because I don't know if people think it was maybe like a sort of a suicide by cop situation, people are unsure, but, uh, eventually, despite that, one person reaching into their pocket or whatever and and being, being shot and killed, everybody else eventually withdrew peacefully after some period of time, like in January and February. And the news that, of course, broke, and that we're recording on as soon as we possibly could, because we wanted to bring Andrew's legal expertise to bear as soon as we could, was that they were charged with several charges, of course, that you might think that would go with something like this, taking over a federal building.

0:15:35 Andrew: Right, yeah.

0:16:34 Thomas: I would hope they would be charged with things, and they, they were not convicted for a lot of these. I do, I do want to note, maybe you're going to talk about this, Andrew, that some of them already pled guilty to charges, so that it wasn't like everybody was declared, you're off, scott free for everything, but there was, uh, you can go into more of the details, the headlines have been, and the sort of, and they're sort of liberal outrage headlines, and we'll find out if these are, uh, appropriate liberal outrage, uh, headlines, have I've been, that they've gotten off free for what they did?

0:17:03 Andrew: That's right, the only thing I would add to that is that, uh, Amman, and I believe Ryan Bundy, are both, uh, still charged in the, uh, their father Cliven Bundy's, uh, standoff with the ranchers, uh, which um, is that, I believe, trial for that is pending, uh, and is scheduled for 2017, so although the other defendants who were acquitted were released, uh, those two remain under, um, under police custody, so yeah

0:17:19 Thomas: Yeah. Oh, I see. Can I ask you a couple quick things on that? Trial scheduled out so far and this one already happening? Does it just have to do with where it is or what, you know, what the docket is like or something?

0:17:36 Andrew: It it can be, um, and in some, in some cases, uh, I, I don't know that what I'm about to say is the case with Clive and Bundy. But in some cases, all of the parties that are involved, the prosecutor, the individual defendant, and the court will agree, hey, look, the outcome of this case could be determined by this pending case. So let's let this other case go first, and we'll pick up once this other case comes to a resolution. Now, again, a civil context, that happens all the time for me, right?

So, for example, I spent more than 15 years and still do some insurance coverage litigation. So we're allocating losses among insurers. And so, for example, I handled some of of the largest lead paint cases, one in Ohio, that was nearly a billion dollars in liability. And there was a pending case in Rhode Island that was brought on similar facts. And all of us agreed if the Rhode Island Supreme Court comes out a particular way, then this case goes away, right? And so we agreed and we stayed the proceedings for three and a half years while while we waited for Rhode Island to reach a conclusion.

0:17:58 Thomas: Uh-huh. Oh, okay. Hmm.

0:19:04 Thomas: So they were scheduling the Clive and Bundy trial and Ammon was like, you you know what? We're going to actually go do another bullshit, crazy thing. So why don't you hold off on that and we'll do our crazy takeover and then we'll do that trial first.

0:19:18 Andrew: Um, I, Let, let me say very, very clearly, there are, uh, I don't know that that was the case in, in this case. And you have a constitutional right. You have a sixth amendment right to a speedy trial. So in other words, you have to affirmatively say, uh you know, I consent, uh to, you know move my trial out an an extra year, especially, you know, because it's extending your incarceration. So, so I don't know that that happened here. I just know that, that that happens in litigation. So I, I offered that as a potential exclusion.

0:19:23 Thomas: Right. Okay. Nope. Yeah. No problem. Just wondering. Got it. So this one, but this one happened first for some reason or another could be related to that.

0:19:51 Andrew: Yeah. Okay. So with that as, as the facts, we have the actual indictment and the indictment that was prepared against Ammon Bundy and his co-defendants. There There are, I don't know, like 21 of them, and I believe seven pled out. So 14 went to trial.

0:19:54 Thomas: Okay.

0:20:12 Thomas: Quick question On that. Do you think that has more to do with the roles they played, or could that be they've got different lawyers and this guy's lawyers like, "Yeah, just go ahead and plead, whatever," and this guy is lawyers like, "Now we can fight this." What, or is there no way for you to know?

0:20:13 Andrew: Yes.

0:20:27 Andrew: Yeah, no, that's a great question. And the answer is, I think it is sort of the risk tolerance of the lawyers that were involved.

0:20:34 Thomas: Sure. That makes sense.

0:20:36 Andrew: Because the major statute under under which all of them are charged is a conspiracy statute. And a conspiracy runs yet to all the members of the conspiracy. That's exactly right. So it doesn't matter. You oftentimes, again, you know, not a criminal lawyer, but but I have had colleagues and close friends who are criminal defense lawyers. And so So if you were the most junior person and you get a pretty good deal, you might look at it and say, well, I'm going to plead guilty, you know, with respect to my junior person.

0:20:42 Thomas: Uh huh. I'll cover everybody.

0:21:09 Andrew: The government doesn't really care, right? Like if you Were the guy who was in charge of taking out the drum of lube and throwing it in the trash can, you Know, right, like it, they

0:21:16 Thomas: I was going to say they had a dildo guy who just the all he did was dildos disposal.

0:21:20 Andrew: Did. And so, you Now, that's guy number 21, right. And, you know, you go to you go to the prosecutor and you say to the prosecutor, look, my guy was in charge of emptying the dumpsters and throwing away all the gags that people sent us. He

0:21:34 Thomas: And then the prosecutor was like, bring out the bags of how many dildos he, uh, ended up throwing away.

0:21:39 Andrew: It's exactly like Miracle on 34th Street. They keep bringing out bags and bags and bags and putting them up on the on the bench. No. So I could certainly see, you know. The lead defendants want And in fact, changed lawyers to bring in more grandstanding lawyers. At one point, one of the Bundy, I think it was Ryan, you know, wanted to represent himself. I mean, the right.

0:21:41 Thomas: Yeah. And they bring, uh.

0:22:00 Thomas: Oh, I love when they do that.

0:22:02 Andrew: He was not. Eventually, a public defender was it was appointed. But, you Know, it was. Remember that these folks are Evolved. Well, they're at the fringes of the sovereign citizen movement. And so, you know, which we did in 0812. And if you listen to that, you Know that those people are nuts.

0:22:10 Thomas: They're incredibly anti-government, right? I mean, they're legal term. Yeah, the legal opinion, considered legal opinion. Yeah yeah.

0:22:34 Andrew: And In fact, Ammon Bundy filed a motion which was denied to appear in court in cowboy uniform, which I have to say, I wish I looked for the copy of this filing because, again, we've talked about legendary lawyer and judge humor, but I have think motion to appear as a cowboy. I've never filed one of those, and would like to see what form that takes. It was denied by the judge. He was not allowed to appear as a cowboy.

0:22:49 Thomas: I'll just try to find.

0:23:06 Thomas: So now the the fact that you said they were charged with conspiracy, now I'm even more puzzled as to how they could be found innocent. Cause it seems like, you know, no matter what there is a conspiracy going on, but now I am really anxious to hear the legal details of it.

0:23:18 Andrew: But so, right. So there's six counts that were filed against, that were brought in this indictment. And we're going to talk about how those narrow out. Count one is where we're gonna focus most of our energy on this episode. It's 18 U.S.C. 372. It is conspiracy to impede officers of the United States. I'm gonna read the statute in full later. So we're gonna skip it right now. Count two is possession of firearms and dangerous weapons in federal facilities. And what you need to know about count two and all of the subsequent counts is that this firearm count is the, technical requirements of the statute is that you knowingly possess or cause to be present a firearm or dangerous weapon, blah, blah. Blah, blah, uh, with the intent that the firearm or dangerous weapon be used in the commission of a crime. And so count two says, yes, withthe intent to be usedin the conspiracy. That's in count one, 18 USC 372.

0:24:13 Thomas: Hmm. Oh, are they all dependent on

0:24:21 Andrew: Yeah, that's Exactly right. So the, the first firearm count is dependent upon count one. Uh, count three is use of a, or carry of a firearm in relation to a crime of violence, to wit, 18 USC 372, um, Count four is theft of government property, uh, which is, uh, that someone named Kenneth Medenbach did knowingly steal, convert, purloin, and convert for his own use a 2012 Ford F-350 truck, um, which is the property of the United States government, so apparently, apparently this guy's was charged with using, conversion is just when you take something that belongs to someone else and you use it as your own. So

0:24:35 Thomas: That? Uh-huh. Right.

0:25:04 Andrew: It can it can.

0:25:04 Thomas: He's like, I Got to haul those dildos out with something. Think it's the same guy now

0:25:08 Andrew: That's probably what he did. Yeah. And then there is count five related to John Ritzheimer and Ryan Bundy on stealing a camera. Um, and then count six is depredation of government property, which is, uh, Sean Anderson and a defendant whose name has been blocked out,

0:25:27 Thomas: Why is that? I noticed that actually. Uh-huh.

0:25:29 Andrew: Yeah. The reason, uh. That somebody's name would be blocked out in the indictment would be, um. If that person has, uh cooperated with the government as a witness and was granted immunity and so is no longer a part of the indict. Indictment. Or alternatively, um, if that person is under the age of 18 and given that this person is still listed in the caption, I think that it is that person has been blocked out because, uh, they are under the edge of 18. I don't know, but. But that's what I think that, you know, there was a tag along teenager.

0:25:49 Thomas: Oh, okay. Makes sense.

0:26:01 Andrew: And so they, uh injured and committed a depredation against the property, specifically an archeological site considered sacred to the the Burns Paiute tribe resulting in damage in an amount exceeding $1,000. Okay. So those are our counts, right? And the first thing to notice here, and this is the thing that so far everyone who has commented on this case has missed, is that the firearms charges, those are counts two and three, are themselves contingent on count one, on the conspiracy count. And so one of the things Thomas and I were talking about this. You know, if you look at the Wikipedia article and you go to the article for Ammon Bundy and then you scroll down to the most recent stuff, there is a linked article to, yeah, yeah.

0:26:50 Thomas: Tell you what, we'll probably just link the occupation of the mall. I don't know how you pronounce it. Mall her? How

0:26:54 Andrew: Yeah, it is Occupation of the Malheur National Wildlife Refuge on Wikipedia. We will link it in the show notes. When you go there, in the introduction to that article, in paragraph five, it says,

0:27:08 Thomas: About. I read it, so I, you're the one who gets to read everything because you're the lawyer here.

0:27:09 Andrew: Oh, yeah, yeah. Go right ahead. Yeah. Right. Yeah.

0:27:12 Thomas: I'll read. I'm the Wikipedia expert on this show, considering that the undisputed facts presented at trial seemingly established their guilt, multiple legal scholars have speculated that this case is an example of jury nullification. I'm really excited to see who these multiple legal scholars are, because I could tell you, I know a legal scholar on the show who maybe has a different opinion.

0:27:14 Andrew: There you go.

0:27:38 Andrew: So if you click through and that is supported by a footnote 37, uh, if you click to that footnote 37, what does it say? Where is that, a link to like a Supreme Court case, or, you know, is, is Lawrence tribe?

0:27:47 Thomas: It's a link to a collection of a large covenant of lawyers who are like, we all unanimously declare. No, it's a link to an article in the New York Daily News dated, I think that's today. Yes. The 28th of October. It's which called Two Things About the Acquittal of Ammon Bundy and His Armed Followers Should Scare All Americans. It is by Lane Crothers. And when you go to it, I don't know about you, Andrew. I don t, after it plays an annoying video without your permission, I do n t see anywhere where a bunch of lawyers have concluded anything. But that s just me.

0:27:49 Andrew: Oh, No, this this Yeah, this journalist says, uh, this was a clear case of jury nullification, um, have, and I've seen that in other news in articles, but again, not from legal scholars. I am going to answer that in the... But 30 seconds before I answer that, I'm going to say that the jury nullification argument is being advanced on the fact that there was no contest at the trial that these people had lots and lots of weapons, right? Right. And so the, just keep that in mind that the that the main.

0:28:36 Thomas: Listener Thomas S. asks, What is jury nullification exactly? Oh, okay.

0:29:00 Thomas: I see. So, what you mean by that is everyone agrees they had lots and lots lots of weapons. Therefore, people are thinking, how on earth could they not be convicted of these weapons charges?

0:29:05 Andrew: Right. And so they're saying, right, because they obviously had lots of weapons and they were somewhere they weren't supposed to be. But those counts and we're going to talk about count three in particular in a minute. But those firearm counts are not just did you have lots and lots of guns and were you somewhere you weren't exposed to be, but rather, did you You have lots and lots of weapons that you used in furtherance of a crime.

And so once the jury determined that that the defendants were not guilty of the conspiracy charge, they had no you can't. By law, they could not find them guilty on the firearms charges. So we need to evaluate why were they found not guilty on The Conspiracy Charge? Charge. Uh, but, but to use as evidence for a theory of jury nullification, the fact that there was no contest that they had lots and lots of weapons is a non sequitur, right? At the point, because because of those two counts in the indictment, uh were contingent on count one, uh there was no way to find, uh the, uh the defendants guilty of the firearms charges if you didn't find them guilty of

0:29:57 Thomas: Oh, man,

0:30:11 Andrew: Of the conspiracy charges.

0:30:11 Thomas: It's all coming together. I'm really glad that we're doing this because I could imagine making that mistake. I could reimagine wondering as a non-lawyer, like, they had weapons. Everyone knows they had guns. But yeah, that makes sense when you explain it that way.

0:30:21 Andrew: Right. So what is jury nullification? Jury nullification is when you, uh, as a, as counsel for the defendant or as a defendant representing yourself, uh, argue to the jury, even if I have committed this offense, uh, you ought not to find me guilty of this offense. Uh, you as jurors are entitled to exercise your conscience. No one can tell you how to vote. And even though you get a charge that describes how you are to weigh the evidence, at the end of the day, your vote is your own and nobody can tell you otherwise. So I'm telling you jurors, when you go back and deliberate, I want you to find me not guilty because you disagree agree with this law and send a message. And even if you, even if you think I've, I'm guilty of the law, go ahead and find me not guilty.

0:31:11 Thomas: Let me ask you a clarifying question. Are you saying jury nullification is merely merely making that argument as a, as a defendant or is it, if that actually happens?

0:31:21 Andrew: Uh-huh.

0:31:31 Andrew: Yeah. Well, that is, that is the appeal to jury nullification. And then it is said, the jury is said to have nullified the law when they deliver a verdict in response to an argument like that.

0:31:34 Thomas: Uh-huh.

0:31:43 Thomas: Stupid question. What happens then? I mean, does that, is there like a retrial or is that, is there anything the legal system can do about that or no?

0:31:43 Andrew: Um. No, I mean, in those, in those cases where the defendant has been allowed to make that kind of a plea. Now, certainly there are cases in which you have had mistrials and in which you have had instructions from the bench on the extent to which you can make that kind of argument. But by and large, you know, as a defense attorney, you are entitled to fairly wide latitude in your closing argument. Um, the one thing you can't do, this is a total side, side note, but, um, it, it's something that's going to come up when we do our Law at Awful Movies. Uh, it happens all the time.

0:31:51 Thomas: Oh, wow. Oh, I cannot wait.

0:32:29 Andrew: Like as a, as a defense attorney, you cannot personally advocate on, on behalf of your client, right? You cannot say, look, I have lots of people come in. I represent lots of People all the Time. And I'm telling you, Thomas is not guilty. I know it. That we've chatted. And the reason you can't make that personal plea, well, why don't you take a stab at it?

0:32:50 Thomas: Well, I remember, does it relate? Cause I remember a long time ago, we talked about the fact that like, you don't want to even ask if the person is guilty, like who you're defending is guilty or not, because then if you know that they're guilty, you're actually not allowed to say certain things, right? Yeah.

0:33:05 Andrew: To suborn perjury? Yeah.

0:33:06 Thomas: Yeah. Does that have to do with that?

0:33:07 Andrew: No, good thing to remember, but no. No. The reason is, I think you were overthinking it.

0:33:08 Thomas: Oh, okay. Oh, sorry.

0:33:14 Andrew: It's really, really simple. I have a duty of zealous advocacy to all of my clients. And so, right.

0:33:19 Thomas: Oh. So if you go out there for one guy, you got to do it for everybody. Buddy.

0:33:21 Andrew: Yeah. Right. I've got to do it every single time. And the implication is like, well, I represent a lot of guilty defendants who get up. So in, in, you

0:33:28 Thomas: Yeah. He's like, judge, are you going to be with the other trial I'm at later today? Okay. Yeah. That guy, he's guilty. He did it. I'll let you guys in on a little secret. He is guilty. This guy, not guilty.

0:33:31 Andrew: Know, definitely not. Yeah. So they didn't want lawyers to be in that spot. They didn't want you to have that, that, you know, kind of extra uh, I zealous.

0:33:47 Thomas: It makes sense.

0:33:48 Andrew: I zealously advocate for all of my clients, but this guy, I really like, you know, um, so, so you're prohibited from doing that, um,

0:33:52 Thomas: Normally, it's a job to try to get in here and defend somebody. This is a privilege.

0:33:57 Andrew: Um, having, having extricated ourselves from from that rabbit trail, uh, So that's jury nullification, uh, obviously we could do a lot more on jury nullication, but that's sort of the general principle of it. There was zero indication that these trials were public. They were covered in the press. There's zero indication that those arguments were made at trial. Certainly, there is a strong indication that the Bundy and everybody involved were making some sort of, you know, dipshit sovereign citizen, you, you know, protester arguments, right? So I don't mean to suggest that there was not an overtone to the trial of, um, you know boy, if you hate the government, uh, you know, come out this way, right.

0:34:01 Thomas: All right.

0:34:34 Thomas: All right, well, but Can I, but, but

0:34:46 Andrew: Go right ahead.

0:34:46 Thomas: Would There have been a reasonable attempt, I'm guessing, by the prosecution to weed out jury members who have expressed any of those kind of views, I'm guessing, right, or yeah, right,

0:34:57 Andrew: Yes, that would be, that would be one of your primary, uh questions that was on the, the, the juror questionnaire. So, so absolutely, uh you would not, well, who Who knows?

0:35:06 Thomas: But how effective is that, I mean, I, I, we can, we shouldn't get too much into it, but someday, Oh, we should talk about jury selection, something like how that, how the, from the strategy of it, have you ever gotten to be involved in that, or is it because you're not, not really the work you do?

0:35:11 Andrew: Yeah, no, no. Look. Yeah, there are civil juries. So, yes, I have been.

0:35:21 Thomas: Oh, yeah, okay, Oh, I want to hear about that someday. Okay, topic for another show.

0:35:25 Andrew: OK, topic for another show. I hope that's a bingo for someone. Want to say I encourage if we have listeners who edit Wikipedia and we've got we've got to have somebody out there who edits Wikipedia. Go on, edit Wikipedia and amend this last sentence in paragraph five on the page of the occupation of the Malheur National Wildlife Refuge with a link to the show that other lawyers have disputed that the jury nullification took place, uh, yeah,

0:35:29 Thomas: Yeah, yeah, one lawyer and one, Thomas Smith, Esquire, have disputed that

0:36:02 Andrew: They, hey, collectively, we have one more lawyer than the quote, multiple legal scholars, that are already present. Um, yeah, word, I mean, word, that, however you want, but, but I think no, it, I, does a disservice to discussing the legal and ethical issue of jury nullification to call this, then. Yeah.

0:36:03 Thomas: Yeah, yeah, look out, Lane Crothers, watch your ass, we're coming after you.

0:36:23 Andrew: Right. So what happened? What happened in this case? Before we get to the trial, there are two motions to dismiss. The first motion was decided on June 3rd. The trial was in September, by the way. So on June third, the defendants moved to dismiss count one, that's the conspiracy count, as unconstitutionally vague or overbroad. Okay. And we discussed this in our Hillary Clinton email episode. So now let's take a look at what the statute says and take a look at that argument. Okay.

So 18 USC 372 says if two or more persons conspire to prevent by force, intimidation, or threat, any person from accepting or holding any the office, trust, or place of confidence in the U.S., or from discharging any duties thereof, which is, by the way, what happened here, or to introduce by like means of any officer to the United States to leave the place where his duties as an officer are required to be performed, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned and not more than six years or both, okay? And

0:37:29 Andrew: This law, yeah,

0:37:29 Thomas: I imagine these were a lot of, of, like, mafia trials or something, where was it, I would, the actual case law that involved Ah, man. Because I feel like there would be a lot of them, they're like, hey, uh, why don't you, you know, go police, mr. police officer, why don't you go take a walk for a second? Well, You know, I feel that's what it was, I'm disappointed, I'm dissapointed.

0:37:36 Andrew: Actually not at all. No, I like

0:37:51 Thomas: Case law, there's

0:37:46 Andrew: It, I will tell you this particular statute was enacted in 1861. So if you ask me, I mean, 1861 is, you know, the Civil

0:38:03 Thomas: Nothing really going on around then that I can think of. Yeah.

0:38:04 Andrew: War. Sure. So, you know, is it in connection with efforts, you know, sort of the initial reconstruction efforts? I don't know. But the statute was enacted in 1861 and has remained essentially unchanged for 155 years. Here's what the defendants said. They said, look, we've got a case case in Nevada, uh, in which a Nevada district court said that this law was unconstitutionally vague. Okay. So not, not the 18 USC 372, but this Nevada state law that I'm about to read. Okay, that law prohibited directly or indirectly addressing any threat or intimidation to a public officer, public employee, juror, referee, arbitrator, appraiser, assessor of any person authorized by law to hear or determine any controversy or matter with the intent to induce him, contrary to his duty to do, make, omit, or delay any act decision or determination, right?

0:38:06 Thomas: Huh?

0:38:57 Andrew: So basically, you can't bribe a judge, prosecutor, arbitrator, whatever. And the court said that case, that statute was unconstitutionally vague. And and the reason that it was, was because of the lack of a definition of what the word threat meant. Andso, the court said, in this case, Chafee versus Rogers, it would be doubtful that the law provides persons of ordinary intelligence a reasonable opportunity to understand the conduct prescribed and that the prohibition of threats and intimidations meant to induce a public official's non-compliance with his duties potentially covers a host of constitutionally protected conduct. And the Chafee court then applied that such a statute could criminalize threats of legitimate lawful action, like threatening to oppose the district attorney in an upcoming election, okay? So essentially, they said, you remember our constitutional vagueness doctrine, that's the price-fixing for sugar, right, war profiteering. You can't just say, you can't charge too much for stuff during wartime because it doesn't

0:39:15 Thomas: Gotcha.

0:40:00 Thomas: Yeah,

0:40:00 Andrew: Tell you what to do, right? You have to know what the conduct is to which you can conform your behavior. And so the courts in this Chafee decision district court said, you know what, this law seems unconstitutionally vague because stuff that seems to be clearly protected, right, which is, you tell the district, this is your mafia case, right, like you tell, tell the district attorney, you go after me and I will run against you for district attorney and I will find the best guy to run against you and I'm going to fund his coffers and he's going to kick you out of office. That's a constitutionally protected form of behavior. That's not the same as bribery or intimidation. It is okay to say to a public official, you suck at your job and I'm doing to fund your opponent or I'm going to run again or vote against you or whatever.

0:40:01 Thomas: I remember all

0:40:51 Andrew: The court said, because this statute seems like it would include that kind of behavior, can't be enforced. It's unconstitutional. So the Bundy said, well, look, 372 is kind of like that. Right. It, it also, it says, you know, if two or more persons conspire to prevent by force, intimidation, or threat, and it doesn't define threat either. Right. So the court denied that motion. The court said, you know what, 372 is not vague. The conduct that is prohibited is sufficiently well defined to be understandable by individuals of common intelligence and provides a sufficiently clear standard for enforcement. And the concern expressed that it could apply to legitimate threats to take lawful action are, quote, unavailing. That means they don't persuade the court because only the illegitimate nature of a threat brings it within the scope of 372.

0:41:43 Andrew: And they cite to another case, which says that would have to, in order to come within this statute, you would have to file a false document or issue an illegitimate arrest warrant in order to fall within the ambit of the statute. So the court says, nice try, but we're going to go ahead on the conspiracy charge. Then a week later, defendants moved to dismiss count three, which is one of the two firearms charges, right, and count three in particular is 18 USC 924 C1, little A, and that prohibits the use of a firearm during and in relation to a crime of violence, and the argument in this motion was that the conspiracy charge is not a crime of violence. And without sort of delving into it, the court agreed with them on that. And so they dismissed count three in June. So this again goes back to our jury nullification argument. By the time that the trial took place, there was only one firearms charge pending against the defendants.

0:42:04 Thomas: Right, Oh,

0:42:55 Andrew: That was count two. Count three was already dismissed out because 372 was not inherently a crime of violence. And you can see that, right? Like intimidation doesn't have to be violence. Um, you know, obviously force, uh, is violence, but you could prevent somebody without, uh, inflicting violence on them. And the court said, yeah, no, you're right. Um. It's not a crime of violence, badly worded indictment. And the other, immediate question that, that you should ask here is, why didn't this indictment have standard, uh. Illegal possession of firearms charges, right? In other words, why didn't it have standalone offenses that were, uh, that applied to the fact that these guys had stockpiles of weapons?

0:43:36 Thomas: I, I just assumed it was okay. And in Oregon or something, huh?

0:43:36 Andrew: Um, yeah, Yeah. I, I don't, I don't know. Um, but I know that, that that wasn't pursued in this case. And typically, you uh—when you look these statutes, right, the, the one that survives, the 18 USC 930B in count two, is possessing a firearm with the intent that the firearm or dangerous weapon be used in the commission of a crime, to wit, 18 USC 372, right? And as we know from our Hillary episode, right, proving intent is kind of a challenge, right. And so you not only have to, you know, have the crime, but you also have to establish intent. I'm not a prosecutor, so I don't want to overly second guess what happened here.

0:44:25 Andrew: But if I were a prosecutor, knowing what I know about the law, I would look for, you something, a criminal offense that doesn't require me to establish intent. And most firearm statutes are what we call strict liability crimes, right? Like it is, you know, if it's, if, for example, you're using a if you possess a prohibited firearm, right, it is the fact that you possess the firearm is sufficient to establish your guilt.

0:44:34 Thomas: Require intent. Yeah.

0:44:50 Thomas: Yeah, it doesn't really matter what

0:44:51 Andrew: It doesn't matter why. Right.

0:44:51 Thomas: You're doing with it. Why?

0:44:53 Andrew: Exactly. Right. So maybe there was no problem. But again, if we're operating on our assumption that, you know, the blocked out name represents a defendant who's under the age of 18, it does not require much imagination to say, I'm pretty sure that 17-year-old dude was not entitled to the firearms that he was holding. So I don't know, but it's not there.

0:44:55 Thomas: Wow.

0:45:15 Thomas: So do you, so basically They, you think that they likely their defense was, well, we didn't intend to hurt anybody. You know, we, we just kind of were doing what we're doing as a a protest. And it sounds to me, unless you have further to go with this, it sounds like that combined with the fact that maybe the prosecutor didn't drop the right charges, maybe the indictment was bad to begin with. And so those two things combined led to this happening. Does that sound sound accurate to You, oh

0:45:47 Andrew: Yeah, the one thing I would do to sort of connect up all the dots is talk about what it takes to prove a conspiracy, okay? OK. To prove a conspiracy, what the government has to prove is really got to show four separate things. OK. So first, they have to show that the conspiracy that's described in the indictment was willfully formed and existed at or about the time that it was alleged in the indicted. Second, they have to show that the defendant willfully became a member of the conspiracy. They have to show that one of the conspirators therefore committed, knowingly committed at least one overt act charged in the indictment at or about the time alleged. And this is this is the overt act requirement. It's what differentiates us sitting around in the basement talking about something from actually being a conspiracy. So to use a movie reference, like right, like an Office Space, you know, when they All sit around and talk about like we should use the Superman three

0:45:54 Thomas: Okay. Yeah. You.

0:46:44 Andrew: Method of stealing all the like you can sit there and plan that out in your basement and say, oh, that'd be great. Like we should do the Superman 3 thing at work. But the moment that you undertake an overt act, right, which is you go into the office with a computer disc in your hand.

0:47:02 Thomas: Rent. Superman. 3, oh.

0:47:03 Andrew: Right.

0:47:04 Thomas: No.

0:47:04 Andrew: Yeah. Yeah. No. But the minute you, you know, develop the virus, the minute that you take it, you know, whatever. Right. All the government has to do is prove you did one thing in furtherance of your conspiracy, but you actually physically did it. I think now is also a good time for me to add. I am not. Please do not take legal advice from a podcast. And I am NOT recommending that you sit around in your basement and plan cool crimes.

0:47:04 Thomas: Okay. Okay.

0:47:28 Andrew: I AM just saying that that that to prove the element of conspiracy requires this overt act, then the fourth prong that's related is that the overt act was knowingly done in furtherance of the conspiracy's object, okay? The objective of the controversy. So when you look at those four elements, you right, see a lot of willfully and knowingly's in there. And ultimately, right? This is part of of what makes conspiracy a challenge for prosecutors to prove, because you are judging the subjective intent of individuals and you are you are judging, you for what purpose did you undertake this action? Now, that being said, there

0:47:34 Thomas: Makes sense. I was gonna say this seems like a conspiracy though, okay.

0:48:12 Andrew: Are no, it certainly does to me. So and now I want to give the other side of the argument. Right. So I did the same thing that I did for the Hillary Clinton case, which is to say I looked up 18 USC 372. There are 150 cases. Many of them are not relevant. But I read or skimmed through those 150 cases to try and determine what sort of patterns come about. And I've got a bunch that I can talk about, but I think the closest case to this case that I that I can come up with is a case called United States versus Gerhardt 615 F 37. It's a 2010 case from the First Circuit. It involves Edward and Elaine Brown. I don't remember this as being a media issue. But in 2007, Mr.

0:48:15 Thomas: Yeah.

0:49:02 Andrew: And Mrs. Brown were tax protesters. So, yay, another call out who decided not to pay their taxes. It escalated to the point where were summoned to the house and they decided to turn their house into an armed compound and hold out. And eventually, you know, the siege was broken and they were arrested. And the facts are really the facts are really, really close to this case. There are some other cases in 2013, the 11th Circuit in United States versus Myers that an individual was part of a conspiracy under 372 when he, when this individual who was serving as a, quote, militia volunteer and a constitutional common law enforcement officer sent multiple letters to judges, U.S. marshals and other public officials in an effort to intimidate the judicial officers from discharging their official duties, which were, can you guess?

0:49:24 Thomas: Collecting Tax, yeah.

0:50:03 Andrew: Yes, yes. Seeking the release of two defendants during a 1994 tax fraud case. He also mailed letters to the U.S. attorney's office, which purported to be arrest warrants for the jurors at that trial, which is my favorite thing ever.

0:50:03 Thomas: Okay. Okay, oh. Okay. Oh. That's so stupid.

0:50:17 Andrew: And in a separate incident, signed letters, quote, indicting judges and threatening to arrest judges and other public officials in Florida. So, you know, these two cases, Gerhardt and Myers, involve the same sort of collection of lunatics, uh, for the same, you know, reason, uh engaged in pretty similar behavior. Uh, they were found guilty and their convictions were upheld on appeal.

0:50:37 Thomas: And They were found guilty right, hmm. Yeah.

0:50:42 Andrew: Um, so, you, raises the question of, you what happened in that courtroom. Uh but I I flag that because I think that the discussion that that's taken place so far that that, you know, that says, right, it's impossible. And, you Know, the jury must all be racist or, you KNOW, that that there must be jury nullification. I would add, I know that there was one juror that was dismissed right at the end of trial. But the initial jury composition was eight women and four men. So, if the alternate was a man and the one who was replaced was a woman, it could be seven to five. But you're not talking about a jury of 12 Trump-supporting, gun-toting rednecks. You're talking about an seemingly diverse jury pool.

Um, let me also uh jump to the end. I am sure that the prosecutor spent very little time on the like did Ryan Bundy steal that camera stuff, right, like it just that you know you've got you've got people filing motions to be cowboys in court. Like it doesn't surprise me that, that that might've not been buttoned up again. If I were a prosecutor, I certainly would have buttoned those up because they're no brainer, no doubt about it. Uh. But it doesn't surprise me that, um, you might make a strategic decision that says, I I don't want to bring the jury's attention to this because you know, that carries a fine. And what I really want them to to do is put these people in jail.

0:51:01 Thomas: Yeah. Oh. Okay.

0:52:09 Andrew: Yeah. You know, I mean, that's why I look, think about it. If you're a prosecutor, right. You only have two times that you speak to the jury, right? You speak in your opening argument and you speak in your closing argument. And in between you put witnesses on to establish the facts and that's it. Like you don't get to testify. So, you know, if you want to put a witness on to say, okay, and here's where M and Bundy or here's Where, you Know, Ryan Bundy steals this camera, know, you're risking, you've got to spend a couple of hours doing that and you're risk the jury being like, wait a second, why are we talking about him stealing a camera? I thought this case was about taking guns. You know what I mean? And so, you have to make strategic decisions. And that's something that's true. When I try civil cases, it's true true for prosecutors.

0:52:50 Thomas: Yeah. So wait Were they they found not guilty of that the camera thing?

0:52:59 Andrew: It's true Yeah, they were.

0:53:01 Thomas: Wow, not spending the time on it?

0:53:02 Andrew: I know it seems kind of strange. I think that what explains that is, you know, the prosecutor's sort of failure to go for it. One thing that I really don't understand is count six, which is the depredation of government property. Because prior to the trial, the Oregonian newspaper actually conducted a study. And this study said that the occupation by the Bundy, quote, cost taxpayers at least $3.3 million. And that covers, you know, the police response, the fact that kids were kept Kept home from school for a week the supplies that were expended during, you know, the standoff from from from food to flashlight batteries. And I should add standoff is kind of weird, like my part of what I never could figure out about this. I don't know if you know was I mean, it seemed like people sort of came and went from the wild life station

0:53:11 Thomas: Okay. Yeah. I saw

0:53:58 Andrew: All the time.

0:53:59 Thomas: Some of that too.

0:53:59 Andrew: Yeah, I don't know that police spent one point two million dollars on wages, overtime, lodging, fuel around the clock work. And an additional seven hundred and eighty eight thousand five hundred dollars was paid for help from other police and government agencies from outside of the county in which this took place. The schools spent a half a million dollars you know, all of these people spent a lot of money. And I. It's very, very easy to establish that this resulted in, serious harm. And the depredation of government property that's charged here is not depredated to the wildlife refuge, but is willfully by means of excavation and the use of heavy equipment depredating against the archaeological site considered sacred to this Paiute Burns Paiote tribe. And I don't know what they did. I mean, I guess apparently they dug up some Indian relics or something.

Um, uh, but again, that's kind of not a core part of the case. Uh, it goes back to, um, you know, our questions about, you know, how was this indictment procured and did they really sort of button up something in a way that allows you to tell a coherent story in front of the jury?

0:53:59 Thomas: All Right, so yeah, a lot of people spent a lot lot of money. Yeah.

0:55:08 Andrew: Uh, I would say this from reconstructing everything from the ground up as you and I have done. I don't think you have to go to jury nullification or conspiracy or racism or whatever to say maybe there was just sort of multiple failures of, you know, how the case was indicted and how the prosecution chose to bring the case and how the jurors saw the evidence. And yeah, yeah.

0:55:30 Thomas: Because I'm a little confused, I mean, do you in your opinion a crime was committed here? Right, I mean, yeah.

0:55:37 Andrew: Oh, sure. No, multiple crimes were committed.

0:55:40 Thomas: Like that's

0:55:40 Andrew: There's... there's no doubt about it. Right. But but there's nothing in the event. Right? Like if if if you and I were to take over a federal building and cause $3 million worth of damages. Right, you would expect that there would be a count in the indictment that says you came in and caused $3 million worth of damages to this government facility, right? And there's nothing. There's conspiracy to prevent government officials from doing their jobs, which is certainly part of it, but there's nothing that says, right, and in

0:56:09 Thomas: Really odd, so it really sounds like the the brunt of the problem is in the original indictment to me, oh.

0:56:14 Andrew: The indictment, and it would not have been difficult to get a grand jury indictment. There is a standard, again, not a prosecutor. My prosecutor friends will tell you there is a long-standing joke in the prosecutorial community of, I can get a grand jury to indict a ham sandwich. That logic, I am sure you could have gotten the grand jury to indict on the kinds of causes of action, but, you know, related to the damage to the actual facility and the expenses incurred in evicting them from the facility and to sort of pin everything on a conspiracy count. You know, again, not a prosecutor. That seems like that seems like a risky strategy. And it looks like it backfired here. Yeah.

0:56:31 Thomas: Right.

0:56:58 Thomas: Whether or not it's incompetence or maybe you, I guess that's where you could allege, I don't know if you want to, I don't know if racism answers into it, but that's where you could allege sort of a blind spot maybe or sort of who knows, could be one it could be either incompetence or some sort of motive but but it seems like it's more

0:57:09 Andrew: Yeah, I am. I am saying, I guess here's sort of the conclusion that I come to the the hot take on this case, and I have not seen anything to the contrary in the last 24 hours, is that is inconceivable that the jury could have reached this verdict. And it must be a combination of either jury nullification or, you know, crazy sovereign citizens. I mean, there are two versions of the same argument, but crazy sovereign citizen citizens who are just disregarding the plain law. Right. We read that initial article from Footnote 37 from Wikipedia. I think that that the facts don't fit that conclusion. I thinkthat there's sufficient reason to say, hey, maybe it's not just, you wacky sovereign citizens and racists who say, yeah, right on, dude. We don't know. From kind of piecing it together from the ground up, I can see how it could happen. Requires a lot of things to go wrong.

0:57:15 Thomas: Okay maybe

0:58:09 Andrew: And as we point out, several of the cases that deal with this conspiracy statute are the same kinds of behavior. Behavior. So I, I don't mean to suggest that there's no room for outrage here. Uh, but I do mean to suggests that I think, uh, maybe it's a little bit more nuanced than than, we're seeing in the news and right, right.

0:58:27 Thomas: Less outrage at the jury than maybe we're seeing in the news, interesting, all

0:58:31 Andrew: Hopefully that's right in the spirit of opening arguments, right? We've, we, we've been accused of being liberal shills and I think this whole episode we have, uh sort of tried to, uh tried to go outside side that, uh, that preconceived bias and challenge some folks.

0:58:31 Thomas: Yeah. Yeah. That's certainly not anything that I've seen covered as of yet. And that's really interesting. I'm really glad to learn more of, I don't know, more of a detailed angle on it that I think is missing.

0:58:53 Andrew: Yeah. Spread it around, edit Wikipedia, tell folks on, on Twitter who say, uh. You the jurors were all racist, uh, goons that, uh., maybe not.

0:58:57 Thomas: I still. I Still want to Know What's Going On With The Indictment and the, and the prosecutor, but right.

0:59:03 Andrew: Yeah. If the prosecutor in Oregon is an opening arguments listener, please. Could be. Drop us an email, openingarguments at gmail.com.

0:59:11 Thomas: I hope not. Cause then I feel like that would be, they haven't learned from opening art because I feel like they did a bad job here, but it could be, who knows?

0:59:20 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:59:30 Thomas: Oh, here's my one of my favorite segments. Closed arguments. This is where we discuss something that should be. Well, it's like it sounds. It shouldn't really be a question. It's sometimes people think it's a question, sometimes maybe a news publication thinks it's an open legal question. But then Andrew tells us, nope, case closed. They're wrong, maybe, sometimes. So one of my favorite segments. Case closed, closed arguments, whatever it is, one of those. Kansas cites the Dred Scott decision. Now, you guys might have seen this. Some people shared it sort of in disgust, particularly Eli Bosnick, I believe. We'd like to credit him whenever we can, patron of the show and podcaster extraordinaire. So tell tell us about this. Why is this a closed argument?

1:00:15 Andrew: Okay. So, uh, it's closed in two ways. So the first is the, the story was initially, uh, posted to us from the Huffington post and our friend Eli shared it as did a number of other listeners. Um, and it was an outrage story and the story Was in a brief defending it's harsh, abortion law. The state of Kansas actually had the gall to cite to Dred Scott.

1:00:41 Thomas: Right.

1:00:41 Andrew: And, you know, as most of our listeners probably know, Dred Scot v. Sanford was the United States Supreme Court decision prior to the Civil War that essentially sparked the Civil Work that said upheld the legality of the Fugitive Slave Act, that said that African-Americans held in bondage in slave states were property and not persons. Pushes all the good liberal buttons to say, can you believe that the state of Kansas is citing this opinion in defense of its abortion case? So number one, yes, the stateofKansas did indeed cite to the Dred Scott decision in its brief.

1:01:17 Thomas: All right.

1:01:17 Andrew: But number two, the outrage is totally unwarranted. Let me tell you what What happened here in the brief? And if you've played along with our you be the Supreme Court, you will understand the significance of in opening section on page four, the Kansas Solicitor General the preliminary argument that the Declaration of Independence does not convey any right or cause of action to U.S. citizens. And loyal OA listeners know that's a true statement.

1:01:48 Thomas: Yep.

1:01:48 Andrew: Independence is a letter. It's a political stunt. It has zero legal force. It may be useful as a tool in American history to illustrate some of our underlying principles, which I think it is, but it's not a legal document. And citing it is of no force. And so this section of the brief, I am 100% positive, was farmed out to some associates in the Solicitor General's office. And they were looking for cases that support the proposition that the Declaration of Independence does not convey legal rights. And one technique that lawyers often use is a technique called the string site.

1:02:34 Andrew: Right. And so when I want to say that a proposition is very, very obvious, I will say, you know, something like it is well established that, you mere negligence cannot give rise to punitive damages, right? And then I'll say C, and I'll cite about 15 cases, right, and the reason, none

1:02:54 Thomas: Yeah. And always Dred Scott. You will always cite Dred Scot.

1:02:57 Andrew: Of them would be Dred Scott, but I would put in a lot of cases, just an overwhelming number, and the reasons you do that is because we've talked about how if I cite to one case, you you know, the other side is going to look to distinguish that case on the facts. But when I want to say, look, courts just time and time again, every time they look at this question, they say, yeah, yeah. You're right. You know, if you just.

1:03:04 Thomas: Sure.

1:03:20 Thomas: And the more different cases you have, the more different facts so that they're not going to be able to just distinguish their case from all of of them. Is that what you're saying? Kind of, okay. And

1:03:29 Andrew: Exactly, exactly. And so by creating a string site, you leave the impression, usually a correct one, that this proposition is really, really well established and the other site ought to take it as true. And it's going going to take a lot to really disturb my belief upon reading this in a brief that this is a solid legal point. So that's what happened here. Some unlucky associate was tasked with come up with a good string site for a proposition that we all know is true, right? The Declaration of Independence does not convey rights to you as an individual. And there's, I don't want to say there's good language in Dred Scott uh because again I

1:04:06 Thomas: We just lost all our listeners. All right, podcast folding. Sorry, see you guys.

1:04:08 Andrew: Right. Yeah, Right. Because I have loyal listeners here and I still practice law and you know uh I dream of that quote uh along with uh some of the things I've said on scathing being uh you know played in open court someday um but but no like

1:04:12 Thomas: Yeah.

1:04:22 Thomas: Wiener Probe is going to be the least of our problems.

1:04:24 Andrew: Right, Correct. Correct. Was language in Dred Scott that very clearly says what they want to say. And so somebody just kind of larded it in. And literally, it's the last case in the string site. And, you know, is that a dumb thing for the poor associate in the Solicitor General's office to have done? It's kind of a dumb things to have been. Is it sort of an equally dumb thing that nobody in the Solicitor General's office has caught that at the end of the string site? Yeah, it probably is.

1:04:31 Thomas: Sure.

1:04:51 Thomas: But it's not some like racist master plan. Kind of, yeah.

1:04:52 Andrew: It's not, it is absolutely, it'S not cited, it's not cited for its holding. It's not cited in the main argumentative sections. And the proposition for which it's cited is a proposition that, I mean, Kansas is wrong about an awful lot of stuff, but they're right about that, right? That the Declaration of Independence has no legal force. This So is a case of misplaced uh liberal outrage and uh I'm always happy to to call out that whenever possible. I know you are.

1:04:55 Thomas: Yeah. Oh, me too. Yeah. Because We're We're so we're especially this election is brought out in both of us. I think the very we've been very just normal run of the mill pro liberal. But it's it's nice to be able to check and balance our own side from time to time. So that's cool. So outrage piece wasn't necessarily and it sounds like was completely basis. It sounds like it's just kind of a sort of an error, not really an outrageous master Nazi plan or something like that.

1:05:19 Andrew: So so correct.

1:05:47 Andrew: Case closed.

1:05:48 Thomas: Case closed. All right. Well, here's where we got a thank our amazing patrons. Can't thank them enough. We've got some new ones. Jason Wait, Fredrik Alstromer, who pledged $20. Thank you, Fredrik, Kevin Triplett, Ognjen Nastic, Hein-Pieter van Braam, Matthew Johnson, and Corpsey the Ewok. Thank you guys so much for being our new patrons this week.

1:06:18 Andrew: As always, we have to thank our Hall of Fame top patrons. This list is really growing, this is just fantastic, we we really appreciate it. And thanks go to Dan Irazari, to Eli Bosnick, to Dave Nichols of the Positively Doubtful podcast, to Dale, Steve Sigman, Jim Grove, Desecrator, Patrick Fussell, Amanda Lipnack, La Bibliotecatrice, Heather Loveridge, Leon Heartly, to Geeker 41, who just increased his uh patron support, we really appreciate that, Kicker 41, uh to Hunter Ash, Michael Kylie Riser, Jeff S Sakashite Fukusumi, Pro Panic, and to our top patrons, the Inciting Incident podcast, Zabby, and new top patron Fredrik Alstromer. Uh again, words cannot express uh how much we sincerely appreciate this.

1:07:07 Andrew: We we really do, uh it's exciting uh to see our podcast uh growing and the support that we get from listeners, uh it is really amazing and

1:07:16 Thomas: Just discussing our first Lot Awful movie today. We promise it will be, I would say no later than November for sure. Like that's going to be the month that we get that because it's going be a monthly thing. So So we'll definitely get it in for November and then every month thereafter. And I also have to say, Corpsey the Ewok just sent us a message saying it was great to meet you guys briefly in Milwaukee. So we don't know who you are, Corpsey the Ewak, or should we? Did anybody introduce... Did any Ewok-looking person introduce themselves?

1:07:18 Andrew: Yeah.

1:07:45 Thomas: Or is this just a nickname?

1:07:44 Andrew: There was the there was the ram-headed man with the axe, but uh there was no Corpsey the Ewok as far as I could tell, but uh And

1:07:48 Thomas: That's true. Yeah. Well, we don'T know who YOU are, but we met you and that was awesome because everybody we met was great. So thank you for that. That's if for the show today. As we said, you'll see an episode on Wednesday, but it will be, it will one you maybe have heard, or if you haven't, I highly, highly recommend checking it out. And even if you have, you probably should check it out again. In.

1:07:56 Andrew: Yes.

1:08:10 Andrew: Yeah. Please do download it for us.

1:08:12 Thomas: Yeah. Yeah, why not? And if you also haven't filled out that survey, survey.libson.com slash open args, we'd really appreciate it. For Libsyn advertising. We didn't make the survey. That is just how it is, but it will take 12 seconds. I got a quote. It literally took 12 seconds for somebody. So, we really appreciate that if you can do it. That being said, I guess stop breaking the law, assholes, and maybe we could change that to stop taking over Federal Land Bundies or something. Let's get Jim Carrey to record that.

1:08:40 Andrew: I agree. I agree with that.

1:08:51 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time. This podcast is a production of Opening Arguments Media, LLC. All rights reserved.