OA43: Explaining the 9th Circuit's Ruling on Trump's Muslim Ban

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 number 43. I'm your host, Thomas Smith, and that over there is your other host, Andrew Torrez. How Doing great. Being the legal expert here and you being the comic relief, I thought I'd give you the chance to do something funny there, so go! Go.

0:01:25 Andrew: Hi, Thomas. How are you doing? I appreciate that. No, that was it. You don't get a lot of comic relief on this podcast, but what you do is high quality. So

0:01:34 Thomas: Yeah. Yeah. Yeah. We got featured in some sort of uh, article that's said we were number two pot legal podcast to listen to, and they, they switched our names, so now I have to do the uh, the legal expertise and Andrew has to make all the jokes. So that's what we're gonna do, sorry, we don't

0:01:56 Andrew: Yeah, so let us know how you like the new format and send all complaints to legalproductivity.com.

0:01:57 Thomas: Yeah look we don't want to be rude, yeah, we don't want to be rude and prove them wrong or anything, like, like, we want to, you know, facilitate what they've said. So no, but thanks to that website for that. I don't know what that is, but then I feel like they could have emailed us and we would have promoted it or something. But anyway, so you're listening to the number two best legal podcast out there, according to experts.

0:02:07 Andrew: Yep.

0:02:21 Andrew: Number two with a bullet, I would like to say.

0:02:23 Thomas: So yeah, yeah. Andrew, you've got a little bit of an announcement, right?

0:02:27 Andrew: Yeah, I am going to be on the David Pakman Show on Wednesday, uh, February 15th, that, um, is a nationwide, uh, radio show with a YouTube channel. And, um, I'm, really excited about it. If you are already a listener of the show, then you'll see a guest whom you recognize. And if you aren't, uh, give it a listen and, and let me know what you think. Yeah.

0:02:47 Thomas: Yeah. Awesome. Well, that's, that should be, if you're hearing this on 10, that Should Be Tomorrow. So don't miss it. Okay. Okay, well, let's get to our first segment of the day, breaking down the law. All right, Andrew, what is this Johnson Amendment?

0:02:52 Andrew: Yeah.

0:03:00 Clip: The law breaking down

0:03:09 Andrew: So the Johnson Amendment was an amendment to the tax code, and it was passed by, uh, then Senator, uh, Lyndon Johnson in 1954. And what it does is, uh, there are different provisions of the tax code, which, which is, uh, begins at 26 U.S.C. 1. If you've heard of 501 c3 corporations, for example, um, Those are, that, that refers to the provision of 26 U.S.C., right? So it is 26 U.S.C. section 501c3 allows certain organizations to apply to become tax exempt. And those are charitable, educational, religious organizations. And the specific value of being exempt as a 501c3 organization is that not only is your income tax exempt, but donations to a 501c3 are tax deductible as well, right? So it's a double bonus.

0:03:34 Thomas: Right. Yeah.

0:04:15 Andrew: All the other provisions, there are other ways to be a tax exempt organization, right, like you can be a 501c4 tax exempt. You can be 26 U.S.C. 527 tax exempt organization. You can a 501c5, right. Right. So there are other provisions in the law, but none of them are such that the organization that that donations to that organization are tax deductible as well. Right.

0:04:41 Thomas: For the people who donated?

0:04:43 Andrew: For the people who donate.

0:04:44 Thomas: Right. So it's the best one. Of all the 501Cs, it's the best.

0:04:47 Andrew: Yes. Right. Right, right. And there are, you know, look, there are others. Like I said, there's a there's 26 U.S.C. 527. We don't need to get into what all the different tax exempt organizations are. So what the Johnson Amendment did was say, OK, if you're going to qualify for this special category where not only is your income tax exempt, but all donations to you are tax deductible, then what you have to do in exchange for that is not try and influence the political system. Right. You're getting a free pass. You'RE completely separate from the political system. Therefore, don't get to influence the political system.

And here's what the restriction is. So the Johnson Amendment added this language to the end of 26 USC, uh, section 501, subsection C, sub, sub section three. And it added this language. No substantial part of the activities of which is carrying on propaganda or otherwise attempting to influence legislation, except as otherwise provided in subsection H, and which does not participate in or intervene in, including the publishing or distribution of statements, any political campaign on behalf of or in opposition to any candidate for public office. Okay. So what's the practical implication of that language? There are two things, and there's a tremendous amount of misconception about this. So it's

0:04:58 Thomas: Hmm.

0:06:12 Andrew: Why I wanted this.

0:06:11 Thomas: I was going to say, yeah,

0:06:13 Andrew: Yeah, go ahead.

0:06:13 Thomas: Isn't this just just what requires churches to not be political or I guess any organization, any 501c3 to not, you know, advocate for specific candidates and stuff like that.

0:06:25 Andrew: Yeah. That is exactly, exactly right. And so you have anticipated kind of the first misconception, which is everybody will point out that for approximately 20 years, the number of IRS prosecutions under 501c3 or revocations of tax status, which is a, you know, obviously a lesser, uh, uh, sanction, or, uh, or audits or anything like that, like, the IRS has literally done nothing to any church under 501c3, uh, in the past 20 years. Okay, that's correct. Okay, so that, and that's a bad thing, right, but, but so, but you, you are hearing a lot of liberals right now talk about like, well, you know, what does this provision matter then, because you know, the the churches and and, yeah.

0:06:55 Thomas: Yeah. Yeah. Yeah. Okay. So I was totally going to ask you this because I saw a Facebook status. We mentioned scathing atheist, no illusions from time to time. He's allegedly like tied with me on the bar exam or something like that, He posted a status that I thought was interesting where he said that the Johnson Amendment, everybody shouldn't be freaking out about Trump saying he was going to get rid of it because, in effect, it already doesn't exist. And so it sounds like that's maybe what you're going to address. So I'm curious to hear. I was goingto ask you, like, is that right? Is that true? I don't know much about that.

0:07:13 Andrew: Yeah. Yeah.

0:07:45 Andrew: And I actually talked to Noah about this. Um, because, yeah, uh, because that's not right. Okay, and, and, uh, I'm the first part of it.

0:07:46 Thomas: Ooh. Well, we should probably mark off one on the bar for him, like just to penalize him.

0:07:56 Andrew: If I would say this, if you come out tied at the end of 200 questions, that'd be a good tiebreaker. Um, no, it, because, look, like that, it is, that part is technically correct, but the idea then that, um, that there's no benefit to the provision, is that, that's the erroneous conclusion. And the reason is because yes, churches are mobilized, and many, many churches are engaged in blatantly political activities. And there is, you know, there are particularly organized by the religious right. There are these lobbying days where they say, churches, we want you to come out and openly be political, and then tape record that and send copies to the IRS. And churches do that. Right.

0:07:59 Thomas: Okay, there's a tiebreaker.

0:08:15 Thomas: Okay. Wow.

0:08:40 Thomas: Well,

0:08:40 Andrew: And it is from in terms of predicting left right. Let me be very, very clear. A great many, particularly inner city, predominantly African-American churches do similar sorts of things on behalf of Democratic candidates. Right. So this is not it is not solely a partisan issue. It's a problem on both sides.

0:09:03 Thomas: But but you just blew my mind. What is this stuff you're talking about, sending in tapes to the IRS? Like, first, I gotta ask you, why do they not do anything about this? Do you have any idea? I mean, is it just politically no one wants to be mean to a church or something? Is it that? I mean, what so

0:09:04 Andrew: Yeah, no, it's two things, right? So it is that, but it's also that the guy at the IRS who was in charge of compliance with this particular provision was fired and never replaced. So literally, right, like they let the office lapse.

0:09:36 Thomas: It turns out, you need people and

0:09:37 Andrew: Yeah, that's kind of an interesting thing. And I actually believe that office was filled in the past couple of years as a result of a lawsuit. But nevertheless, that's got to be the easiest job on earth because there have been zero prosecutions. There've been zero denials of tax exempt status, zero audits. Um, and the, the event to which I was alluding, uh, you can Google this. It's called Pulpit Freedom Sunday. Um. And that is organized among these conservative megachurches because in our weird Orwellian universe, being able to speak your mind from the pulpit about a political opinion and receive double the tax benefits is

0:09:38 Thomas: Jobs to do things like this. Okay, yeah. Yeah.

0:10:24 Thomas: Yeah.

0:10:24 Andrew: Somehow, you know, a core right for reasons that I can't begin to fathom. Right. Because let's be very, very clear. Under the Johnson Amendment, you are free to run a church and and spend every, you know, you could run the the Republican Church of Ted Cruz.

0:10:30 Thomas: Yeah. Church

0:10:41 Andrew: Right.

0:10:41 Thomas: Church of Ronald Reagan. Oh, okay.

0:10:42 Andrew: Yeah.

0:10:42 Thomas: Yeah, well.

0:10:43 Andrew: Yeah, yeah. Reagan is even better. Right?

0:10:46 Thomas: Yeah, you need a dead, usually you need like a dead savior. Right, you can't have current. Yeah, well.

0:10:48 Andrew: Yeah. Modern day prophet, though, Ted Cruz?

0:10:51 Thomas: Okay. Okay, let's say Ted Cruz, yeah, Zodiac Killer Ted Cruze, and his satanic, no, that's I'm crying, mixing our metaphors here.

0:10:55 Andrew: Yeah. Right. Now Let's let's not let's not let's not insult our, our good friends at the Satanic Temple, they are long-standing supporters of the show. So there's nothing to stop you if you wanted to have a blatantly political church and have a blatantly political message, right, there's absolutely nothing to help you from doing that, right, you could, you could, and you could be tax-exempt, no, you would still, still, you would still be tax exempt. You could register as a 501c4.

0:10:59 Thomas: Yeah. That's true, yeah.

0:11:16 Thomas: Just don't get tax exempt status for everything. You just

0:11:24 Andrew: And the only thing is right.

0:11:24 Thomas: Wouldn't donations would just not be, yeah.

0:11:26 Andrew: People would not be able to write off the amount that they put in the offering plate. So the idea that there is some sort of pulpit freedom is just, you know, that's, that, that that's the biggest misuse of the word freedom since freedom fries. But anyway so so, so that's the status, right? So that's the status of, uh, where the Johnson Amendment isn't effective. But where is it effective? Okay, and where it is effective is with, um, parachurch and

0:11:26 Thomas: Oh, my gosh, all right, Stalin, well, hold on, let me pause you. It should be effective there, like, it, it, I mean, there's no reason it shouldn't be, it just for some reason isn't. I don't, I still don't get that. But even through, I, I would get it if it was like, like, okay, when Bush was president and then about now when Trump is president, no one's going to enforce it. But why not during the Obama years? They just didn't feel like doing it?

0:11:53 Andrew: Oh, okay. Yep. Right. Yeah.

0:12:14 Andrew: For well, for the reason that I think, uh, dovetails with, um, why it's important to keep this law in the books, even if it's not. With respect, well, there are two reasons, so let me, let me talk about this one. Okay. And that is, even if it's not being enforced now, the difference between having it on the books such that it could hypothetically be enforced in the future is very, very different from repealing it, right, amending the tax code, and then having to get the political will of getting a majority of Congress to reauthorize, right? Because this is not like going back and forth over the Mexico City Policy or, you know, something that that can be done via an executive order. This requires, if you amend the law, this is going to require passing an affirmative amendment. And, know, 80 percent of this country is religious and ninety nine point nine percent of our elected representatives are religious.

0:12:19 Thomas: Okay. Yeah.

0:13:07 Andrew: So, you now, there's... there's not going to be, I mean, we'll get Jamie Raskin and maybe Kristen Sinema. And, you know, Andre Saleh is successful with the Atheist Candidate Project, maybe we'll get, you know, a couple of other, folks, but there will be tremendous pressure against anyone bringing like this under anything resembling the current political climate. So that's kind of the first thing is, yes, hasn't been much political will to go after churches flaunting the law now, but it's easier to imagine a directive from the president to the IRS to enforce this provision than it is to imagine reamending the law and reauthorizing it under a subsequent Democratic administration, right? So that's the first one.

0:13:54 Andrew: It's kind of prophylactic. That's a minor benefit. And if that's all there was, then I would say the position of this is not a big deal is more valid. But here's where it is a big deal. And that is, in addition to churches themselves, there are a tremendous number of parachurch organizations and religiously sponsored public interest groups that are very, very active that are out there. So let me give you a really obvious example. Focus on on the family, right? Focus on the Family isn't a church. They are a 501c3 organization. And the IRS has gone after non-church religious organizations for violating that provision of 501C3. And let's be fair, right, let's talk about on both sides of the aisle, this 501c3 restriction applies to Planned Parenthood, right. You probably know where Planned parenthood stands with respect to certain It's just like, you know, where focus on the family stands with respect to certain candidates. But what both groups do is they have 501c4 parallel organizations, They're actually the, yeah, the best practice is including the word action in the name. So there's Planned Parenthood action and there's focus on the family action.

0:14:47 Thomas: Sure. Right.

0:15:04 Thomas: You referenced this I think last week. Yeah.

0:15:13 Andrew: And all of these other groups, they have separate 501c4s. And when they put out candidate guides, those candidate guides are put out by Planned Parenthood Action. And so your tax deductible contributions to Planned Parenthood for women's health, or your tax deductible distributions to Focus on the Family for whatever it is they do, are not used directly on political lobbying. And, like, that's the way it should be. And so the, in my view, the much bigger harm is not all the harm in repealing the legal structure, but the much bigger harm is that you're essentially eliminating the necessity for a 501c4 action group associated with educational institutions or religious organizations that are non-church, to whom this law has applied and for whom there is significant scrutiny, right?

I have helped out many organizations, I shouldn't say many, I've helped out a half dozen organizations get 501c3 status, and if you're an ordinary 501c3, if you are not a church, if you don't have a little cross on the front of your building, the IRS takes that very seriously, and I will distribute along with, you know, your application, a memorandum for that organization to distribute to all of its employees to say, hey, look, like, if, you know, our social media coordinator gets on Twitter and says,

0:15:39 Thomas: Yeah.

0:16:37 Andrew: You know, LOL, Trump, what a dummy, two days before the election, that could jeopardize your 501c3 status, right? Like, the IRS does crack down and takes compliance with, for every other organization, very, very seriously. So it's bad that the provision isn't being applied against churches right now. But it is being applied against religious institutions that that are non-churches, and getting rid of it would be a terrible, terrible thing that is almost certainly going to happen, so Yeah. I mean, look at it I did

0:17:03 Thomas: Oh, man. Really? I was hoping this was just rhetoric that maybe, you know, Trump would forget a few minutes later.

0:17:13 Andrew: Because, you know, that that that's happened, I mean, it's, he's, he's demonstrated an amazing memory for off-the-cuff promises made on the campaign trail of like, nope. Uh, I said I was gonna do that. And, uh, I mean, I would not be be surprised.

0:17:23 Thomas: Yeah, you're right. I don't know if it's him. I don't know if it's just the people around him, but yeah, one way or the other.

0:17:28 Andrew: Yeah. It could be, I mean, I would not be surprised if there is, if, like, the top 10 feet of the border wall are painted a different color, right? I mean, like, that it comes through, and he was like, no, no, no, remember in that debate, like, I said the wall just got 10 feet higher, like, I, it it, it, yeah.

0:17:40 Thomas: Just got 10 feet higher, yeah. Oh, man. He paints it like bonus 10 feet. Like, yeah, there's just everywhere. That would be amazing. You know what? That would have been amazing. Actually, that would be so funny, I would have to be like, all right, that 10 feet, kind of funny. The rest of the wall, a disaster. At least that was funny. But, thank you for educating us on this Johnson Amendment. All I can thinking about is what a persecution complex we've got going here. Oh, I can't, I'm being silenced on the pulpit. I'm getting silent, even though you could still be tax exempt. It's just that donations won't be tax-exempt. Oh my gosh, that is unbelievable to me. I mean, like it's, it's so true that when you have privilege in one way or another, as Christians have in this country, um, anything that, that is, should be just normal, like equal, that feels like oppressive.

0:18:10 Andrew: Yeah. Yep. Right.

0:18:37 Andrew: Right, to me, what's the most interesting about it is that, that the, the disanalogy is so obvious and should be so readily apparent to anybody shouting it, right, where you're like, my pastor needs the freedom to endorse Donald Trump from the pulpit, and you would just look at him and be like, um, you, you have the freedom to do that, and to tell me, I'm like, you're, yeah, yeah, yeah, and, and don't, don't you pay taxes, like, I mean, I mean, it's not a hard, you know, some of the arguments that we talk about on the show, you readily concede require a little bit of nuance to understand. Um, but this one is not, yeah, is not a hardware to follow in my view. So anyway, I'm

0:18:59 Thomas: Yeah.

0:19:10 Thomas: Seems like a slam dunk. Yeah. All right. All right, for our main topic today, Andrew, we're doing another one of those impromptu emergency recordings because the Ninth Circuit, that little three-judge panel, struck down, or sorry, what did they do? Let's see. I'll see if I get this right and then you can correct me. They refused to overrule the previous stay that had been in place on Trump's Muslim ban or not Muslim ban, as A troll on Facebook was was arguing with you, so is that roughly a good description of what happened?

0:19:47 Andrew: Yeah, That's, that's, uh, that's pretty good. Um, I, want to distinguish, um, procedurally where we are because you know, as usual, you know, our theme here is right, even news sources that you trust like the New York Times, right, like I mean they don't have a lawyer on staff.

0:20:01 Thomas: Yeah, Well, Even news sources Like

0:20:09 Andrew: So So, yeah,

0:20:09 Thomas: Serious inquiries only where I Said this would likely, uh, be ruled constitutional, so I've seen a lot of people say, and a lot, liberals tweeting and all this, and I don't blame them, because, like you just said, I mean, trusted news sources are even kind of getting this wrong because it's a very, very precise legal thing that's happening. I've seen people say, "Ah, congratulations, Trump's immigration ban found unconstitutional." Now, is that what happened?

0:20:32 Andrew: Not remotely. So let's talk about what what actually did happen. OK, and we have talked about the the underlying order. This is Judge Robart's order, which was he's a sitting judge, as as we have described. Any federal judge can enjoin a law or executive action from going into effect. And he was a he is a judge in the United States District Court for the Western District of Washington that covers Seattle. And he issued a TRO blocking Trump's executive order, the Muslim ban, which we will talk about the substance of that this episode, I'm sure. But I continue to think that's a perfectly accurate way to describe what

0:20:36 Thomas: Okay. Yeah. I just can't not

0:21:18 Andrew: The what the

0:21:18 Thomas: Think of The first Melissa McCarthy, Sean Spicer skit. They just did a second one, but it's pretty much just a repeat. The first one where she's like, "No, I didn't." You called it a Muslim ban. Those are your words. You said Muslim pan every time, yeah.

0:21:19 Andrew: Right. Yeah. Right. Yeah, you Trump and Giuliani have all you. But so so we'll talk a little bit about the merits of the underlying TRO. But so here's what happens. That judge issued a TRO, a temporary restraining order, blocking the executive order, the Muslim ban, from going into effect. Government then immediately appealed that TRO to the Ninth Circuit Court of Appeals, which covers the West Coast plus Idaho. We've talked about that before. And the Ninth Circuit is the most liberal circuit in the country,

0:21:38 Thomas: Once again, referencing the thing that Runaway Jury got stupidly wrong, which was you pick the place where you're going to, you have your case be heard

0:22:15 Andrew: You're going to succeed on appeal. Well, look, like that's why we're here. Right. Like the in. We have talked about, you in our FLSA episode, we talked about how the business interests went to a variety of different district courts trying to seek an injunction to block the implementation of Obama's Department of Labor standards that the threshold on exempt employees, under the FLSA, until they found the one judge in the Eastern District of Texas who was willing to do that. This is the flip side of to that, be politically fair here. And it is not a coincidence that the areas where judges have blocked portions of the executive order in the Southern District of New York and in the District of Massachusetts, or the entirety of the order, as

0:22:15 Thomas: Yeah. On both

0:23:05 Andrew: In in the Western District of Washington tend to be where you have, you know, liberal judges in liberal areas, right? So, it it would do well to kind of acknowledge that that sort of forum shopping goes, uh, takes place by both sides.

0:23:18 Thomas: Sides.

0:23:18 Andrew: Right. Like, yeah. People are cognizant of, you know, where judges are and what their bias is, so so

0:23:18 Thomas: Yeah. And Because of how fairly you covered that, I had been saying on my show, and we've said here, that I, you know, I I think the prediction, and your prediction, if I have you right, was you thought this would kind of go the other way. Now, I know you're going to correct and clarify some things, but I was thinking this three-judge panel was going to lift the stay.

0:23:42 Andrew: So here's what what happens, okay? And, and, and I will say, I stand by my prediction that I think the Ninth Circuit is eventually going to overturn the TRO on its merits. They haven't, I know it's weird, and if you've read the news, you might not get this, they haven't ruled on the merits of that question yet, okay? Here's what they have done, okay, so the judge in the Western District of Washington enters in the TRL. The government immediately appeals to the Ninth Circuit. Um, but they also, the government also had to do something procedurally in connection with their appeal, uh, which is to move for a stay of the enforcement of the judgment of the lower court. Okay. And so what that means is, typically when you win in court, right, you then get a judgment and you can, uh.

0:24:29 Andrew: If it's a monetary judgment, for example, you can go execute on that and you can get the money which you were entitled. In order to stop that judgment from taking effect, you have to stay the enforcement of that judgment, right? So if you get, say, a million dollars, then the way in which you stay the reinforcement of giving the other side a million dollar while you appeal the issues is you post a bond, right? It's called a supersedeus bond.

We've talked about this in a previous episode. And you post that money with the court. And then the court says, "See, look, we have the money, and now we'll listen to the legal arguments on appeal. And at the end of the day, if you persuade us that that's wrong, we'll give you back your money. But we need to have this money on hand so that the party that won below is assured that if they win on appeal, the money is still there to satisfy their judgment. And if you know, it bears a lot of similarities. But but what the government. So I was giving the example from a monetary perspective, which is because it's easier to understand if you can't post that bond. That I just talked about. Then if you lose at trial, even if you appeal, you have to give the other side the money. Right? Does

0:25:26 Thomas: So, is it correct to say this was sort of an initial kind of fast, a fast-tracked kind of attempt at it, to quickly, no? Okay.

0:25:51 Thomas: Right.

0:25:51 Andrew: Does that make sense? Because what the court doesn't want to have happen is I take you to court. I win a million dollars. You appeal. And then by the time I win on appeal, you've spent that million bucks. Right. And I now can't get the money to which I am entitled. So if you can't post that bond, then the judgment of the of the trial court goes into effect, even though there's an appeal. So now think about that when you're talking about staying a law or an executive order, as in this instance. Plaintiffs won an emergency TRO. The government thinks, as I do, that that TRO was probably improvidently decided, that the balance of the law goes the other way. But the question is, while they argue about that, does the judge's order go into effect or not? Right. And so the default is the judge is order goes into effect unless and until you win on appeal. What the government wanted to do was stay the application of the TRO.

0:25:52 Thomas: Okay. Okay, okay, okay.

0:26:55 Andrew: In other words, prevent it from going into effect while they briefed and argued the case on the merits, which, by the way, is on there on an expedited appeal. Yeah, it

0:27:01 Thomas: But this is why this was a three-judge panel, right? Because will the actual main question of the merits and all that, will that be more judges or is it still just a random three judges?

0:27:13 Andrew: Will still be a three judge panel, right? That's how that's how you sit in the US Court of Appeals. There are a pool of judges and they assign three. In rare cases, you will get an en banc, which is all the judges. But no, typically you. Yeah.

0:27:14 Thomas: Oh, okay man. Okay. Oh, I had a misunderstanding. I thought that was normal that you would get all the judges. So that makes sense.

0:27:30 Andrew: Nope. Right.

0:27:31 Thomas: It's always going to, for the most part, always going to be a three judge panel.

0:27:33 Andrew: Right, right. And so what the government just lost on was the government lost on their motion to stay the or the TRO of the Western District of Washington pending the same Ninth Circuit, the same panels evaluation of the merits of that TRO.

0:27:55 Thomas: That was going to be my next question. Is it literally the same three Judges.

0:27:56 Andrew: OK, it is same Three judges, same panel. OK, so you know, there may be some tea leaves that you want to read and we and we will talk about. But the most important thing to know about that going forward is at this stage of the proceedings, the burden of proof was on the government to Demonstrate that the balance of hardships favored not letting the TRO go into effect for any period of time While the merits were under review. You.

0:27:59 Thomas: Okay. Yeah. Yeah So That So it's kind of a meta question, and so then now I'm now I'm wondering how, what word should, like, assume, okay, Andrew Torrez, you now work for the Trump administration, sorry, you're in there, the, whatever, the Justice Department or whoever that that lawyer was, that attorney, what should he have been trying to prove in this particular question? Because it's not really, is it, about the merits, because that's, you're saying that's like a later question still to be decided. Was this, should he just have been trying to prove, look, you want make sure I speak precisely. You need to lift the stay on this EO because of the danger.

0:28:27 Andrew: Okay. Yes.

0:29:02 Andrew: No, no, you need to, you need to you need to impose a stay on the temporary restraining order, preventing the executive order from going into effect. And I, I, real, I know, right? I mean, it's, it's a meta question, but yeah.

0:29:10 Thomas: Okay. Oh, geez. Yeah. No, no. Yeah, so now it makes a little more sense to me, I guess, why there were more questions about the dangers and all that. Because the way I had understood it from you, it was weird to me that he wasn't just saying, yeah, we have the right to do this. It's in this such and such law. It spelled out. But that kind of answers that question now, unless I'm still misunderstanding.

0:29:39 Andrew: Good. No. No no. I think, I think I think you're

0:29:41 Thomas: So is that right? So that's why I wasn't like, yeah, here, section this, this, this, because this three-judge panel wasn't trying to decide that. They were trying to to decide, do we need to impose a stay on the previous judge's restraining order restricting the executive order? Is that right?

0:29:41 Andrew: Right.

0:29:57 Andrew: That is a hundred percent Um, So then the question becomes, is the government entitled to a stay to prevent the TRO from going into effect? And that, uh, has a specific legal standard. Okay. And this is page 18 to 19 of the ninth circuit's opinion. Obviously, we're going to link both the Washington, the Western District of Washington order imposing the TRO and the Ninth Circuit's denial of the stay application in the show notes. But a very this this language will be similar to what you've heard previously when we're talking about injunctive relief. Here's here's what the NinTH Circuit says. A stay is not a matter of right, even if a reparable injury might otherwise result. It is instead an exercise of judicial discretion, and the propriety of its issue is dependent upon the circumstances of the particular case.

0:29:58 Thomas: Okay. Finally.

0:30:50 Andrew: The party requesting the stay, and keep in mind here, that's the government bearing the burden of proof on this initial procedure right here, bears the burden of showing that the circumstances justify an exerciseof that discretion. Our decision is guided by four questions. One, whether the stay applicant has made a strong showing that he is likely to succeed on the merits. Two, whether the applicant will be irreparably injured absent the stay. Three, whether the issuance of the stay will substantially injure the other parties interested in the proceeding. And four, where the public lies. So as you hear that, you'll realize that's the same kind of four-part test that is required to issue an injunction in the first place. And the only difference here is we've now shifted from, the trial court level, The plaintiffs, in this case, the states of Washington and Minnesota, bore the burden of proof to show that they were substantially likely to succeed on the merits.

0:30:57 Thomas: Right.

0:31:48 Andrew: And here, the government bore the burthen of proof, to show they were substantialy likely to suceed on the merits. And I agree, so take a step back, I think I said this, you and I were talking about watching the oral arguments on Wednesday or Thursday. And I said to you, I thought it was very, very strange what the government was doing in oral argument and the arguments that they were emphasizing. What I would have done would have been to attack the Western District of Washington's order as really circumventing the ordinary four-part standard for granting injunctive relief, putting their thumb on the scale and me—and not requiring—not meeting their burden of proving that their view of the law was correct,

0:32:32 Thomas: Okay. So that's how you think it's circumvented. So the part of the test that you think the original judge who issued the stay of the executive ordered circumventing was the part where they prove that they're likely to win on the merits.

0:32:49 Andrew: Yeah. No. And in fact, Judge Robart basically admits this. Right. So this is this is the original order.

0:32:49 Thomas: Okay. Yeah. Didn't he say like, well, but it's such an important, uh, you know, it's a restrictive thing that we just need to make absolutely sure. So I'm going to issue a stay for now. It wasn't essentially that kind of language.

0:33:04 Andrew: It kind of does. Right? So he Says he gives the same four part test. Right, this is the bottom of page three going on to page four of Judge Robart's order. This is in the district court below. And he says, as an alternative to this test, a preliminary injunction is appropriate if serious questions going to the merits were raised and the balance of the hardships tips sharply in the plaintiff's favor, right? So you can see how that says, you know, ordinarily you have to show a substantial likelihood of success on the merits. But if you can win that the balanceof hardships is so strongly in your favor, we'll grant an injunction even if youcan't necessarily meet the substantial likelihood of prevailing on the meritstest. And and a valid citation. There have been courts that have undertaken that application.

0:33:07 Thomas: Yeah, yeah,

0:33:56 Andrew: But but certainly where it is clear. Right. My argument, if I had been briefing this for the Trump administration, would have been that 8 U.S.C. 1182(f) is so clear and there is no authority to the contrary that, It would would be essentially tossing out uh that first factor uh in order to, you know, to stretch it to to uh to implement a TRO here. Um, so I expected that what the Trump administration did instead was they threw a whole lot of arguments at the wall, um, And and yeah,

0:34:11 Thomas: Yeah.

0:34:29 Thomas: Yeah well, I was going to say, let me, let stop you there. Cause I was just thinking, uh you and I, and I think a lot of people listening and a lot people that we're following because you know basically basically, if you're someone who is against this order in general, you're against the Muslim ban in general. I could see this initial judge being somewhat of a hero and making a lot of sense. However, when you put it that way, you did. And now that I understand it a little more, I could easily imagine a set of facts where that same ruling would be, we would look at it as ridiculous. Like if you, if let's say there was in place some sort of a new executive order that was going to stop a bunch of discrimination. I don't know, maybe somewhere they're discriminating against black people or something like that.

0:34:32 Andrew: Yeah, I

0:35:12 Thomas: They're doing awful things. They are restricting them from using common services or using whatever it is. And if a judge said, well, I'm, it's unlikely that this law is going to be accurate on the the merits, but there's going to be so much hardship involved in striking down this discrimination. I mean, imagine these poor businesses and what they're going to have to go through, that we're going go ahead and issue a stay just because there's the balance of hardship is so much. I mean, that would be roughly speaking the same kind of logic, or you could tweak a better example than the one I just tried to think of off the top of my head, but that doesn't sound very convincing to me just because it's going to be really hard. But but if it's totally, you know, legal, I don't see the logic of issuing that stay in the first Place. Mm-hmm.

0:36:01 Andrew: I think that's, a I think that's a really good way of putting it. Right, so if you have a, you have this four-part test, imagine each part of the test you could numerically reduce to, you know, zero to 100 as being in your favor. Then the the ideal way in which these tests operate is if you have 51 or more on all four parts. Right. Then you would say, OK, we'll issue the injunction. We'll issue that. And then the harder questions become, well, what if you have, you know, 70, 70 70 and 45? Well, yeah, you know, um, but the likelihood of success on the merits is has always been in every jurisdiction.

0:36:16 Thomas: Right.

0:36:37 Thomas: That Should be like the most important One. I would think.

0:36:44 Andrew: It it and there is substantial case law in every jurisdiction that says it's the most important one. But

0:36:49 Thomas: Yeah. So that the the argument you would have made if you were working for the Trump administration, you would have said, you know, this is the most important part of the test and this judge completely kind Of ignored it.

0:37:00 Andrew: I think that's right. Yeah.

0:37:01 Thomas: Right, well, that, if there's one thing I want to know your official legal opinion, as we've already said, regardless of how this all turns out, it's, I think it seems to me in my non-professional opinion inarguable that there's been a ton of incompetence in the Trump administration, and no one has known quite what argument to make when and how to and who to run these things by and how to do these things, these executive orders, in a way that's going to be successful regardless of whether or not you agree with the content.

0:37:33 Andrew: Yeah I agree with that. And I would I would point out that when you look at the merits of the arguments that were offered in rejecting the stay. Right. Right. So ultimately, the Ninth Circuit said, we don't think the government has met its burden of proving overwhelming Likelihood of success on the merits on their side. Right. And they said, in, we think that there are two arguments that are serious arguments that the government has now not shown an overwhelming likelihood of success on the merits for. So notice how that, you know, there's that shift, right?

You know, you don't even have to Say, we think these are 51% likely, right? You just have to say, we think these are decent arguments. And the two arguments that they give are due process and First Amendment religious discrimination. So I think it's important to look at those and see how these are arguments that have been given force before the Ninth Circuit due solely to the incompetence of the Trump administration and their lawyers. So first, first, likelihood of success on due process. I made a statement in our first Muslim ban episode, not OA 16, but the first one in which we analyzed the actual order that said non-citizens, non-aliens, those

0:37:51 Thomas: Yeah, yeah, yeah.

0:38:56 Andrew: Who have never been in this country do not have due process rights to invoke under the Constitution until you get to this country. Right. That's still true. But do have a case where you can have due process rights with respect to the United States and not being and not be in the United states. And there's a really good example that we talked about this in the ACLU in talking about the ACL lawsuit in York. If you are somebody with a valid immigration visa who's out of the country, you right, have a right to return. So due process attaches to you, but it doesn't attach to any, you know, like it doesn't attach to Somali refugees. It doesn't attach to the refugees from Saudi Arabia who have never been given any sort of rights in connection with this country. So here's what the Ninth Circuit said about due process rights. This is from page 20 to 21. We say the procedural protections provided by the Fifth Amendment's due process clause are not limited to citizens.

0:39:05 Thomas: Right.

0:39:57 Andrew: Rather, they apply to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary or permanent. These rights also apply to certain aliens attempting to reenter the United States from traveling abroad. The government has provided no affirmative argument showing that the state's procedural due process claims fail as to these categories of aliens. For example, the government has failed to establish that the lawful permanent residents have no due process rights when seeking to re-enter the United States. OK, so this entire first argument applies only to the section of the executive order that applies indiscriminately and fails to exclude returning lawful permanent residents of this country.

0:40:43 Andrew: Right. And at oral argument, the solicitor general basically said, hey, look, after the and this is the reason, by the way, that the ACLU's habeas corpus lawsuit was able to prevail. Right. Like it applied only to a very, very narrow class of people. Those are the same people we're talking about here. People who have a preexisting Right to be in this country that the executive order just sort of stomped all over. At oral argument, the government's lawyer said, hey, look, after we lost the ACLU lawsuit, the office, the White House Office of Legal Counsel said we were no longer going to enforce the sections of the Muslim ban against permanent residents who were traveling abroad and seeking reentry. So, um, so that should make it okay, and what the Ninth

0:41:01 Thomas: Yeah. I remember now this was where the three judge panel kind of laid a bit of a smackdown on on on the administration. Is that right?

0:41:30 Andrew: Yeah. No, that's exactly right, and what and what they said was, um, nor has the government established that the White House Council's interpretation of the executive order is binding on all executive branch officials, officials responsible for enforcing the order. The White House counsel is not the president and he is not known to be in the chain of command for any of the executive departments. Moreover, in light of the government shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House Counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. Okay, so you, it's, I love the fact that you have now been talking to me long enough doing the show that you're chuckling at legal humor the way I I chuckled at legal humor Back In August, right?

0:42:16 Thomas: Yeah, yeah, I get it now. I get it. No, I still needed help. I still need to read a few articles that pointed that out because it's still not funny. That's the thing I'm trying to say.

0:42:18 Andrew: Yeah, that's hilarious for lawyers. Yeah, well, I get that. But

0:42:30 Thomas: I can't Believe this didn't occur to me a long time ago, but this is now becoming clear, what they might do. Why don't they just scrap the whole thing and rewrite an executive order? And furthermore, they could just do that a million times, right? Like, what stops them from just, "Oh, that one wasn't quite right, cancel that one, there's a legal challenge, let's just rewrite it." You know, it seems kind of weird. Is there any limit to to them being able to just keep trying until they find something that's legal? Yeah.

0:42:39 Andrew: Exactly.

0:42:56 Andrew: Well, so with respect to your second question, if you continue to issue a series of slightly different executive orders in the hopes of mooting the judicial process, I could see a court saying, no, hey, look, like we're not going to be fooled by this. Uh, and um, You know, and saying, like, minor differences in executive orders are not sufficient to cure, and, you know, an issue, you know, a more broadly worded TRO that that would apply to the current executive order and any substantially similar executive order.

And I've never seen anything like that in practice, um, would it would cause a neat argument as to whether that's a constitutional order or not, right? Like, I I don't know, it Would would be a fun law school hypothetical, um, but here, you look, you don't have to go to that far, right? Like the Ninth Circuit has essentially told the Trump administration how to evade Their due process argument, right, and the way in which they, you, they say, here's how you can evade the due process argument by crafting an executive order that on its face only applies to individuals without a pre-existing right to be in this country, right?

0:43:13 Thomas: Yeah. Yep. Yeah. Right.

0:44:04 Andrew: That excludes lawful permanent aliens. That excludes current residents within the United States, and that excludes those people who have been approved as a part of the refugee program. It would not stop in any way what Donald Trump wants to do to scrap the current EO and issue a new one that included those those restrictions. And, you know, this is an example. We sort of have debated the, you know, who's more dangerous. And this is an area where I think Trump's lack of experience, his obstinacy, and his arrogance is making him less dangerous to the country in the long run. Because

0:44:44 Thomas: Well, I Would say in the the short run. I mean, in the long run, I feel like he's going to figure it out or he'll, you know, the council will, will, uh, we'll tell him, Hey, uh. Here's how you be horrible in a legal way. And I'll be like, Oh, okay.

0:44:45 Andrew: Yeah, right. Yeah. Fair enough. Yeah, Right. Right.

0:44:57 Thomas: I was trying to see, I was to be horrible and illegal way. And that, that wasn't as effective. Let me just recalibrate.

0:45:01 Andrew: Right. Right. And, But, he won't, right? Like, he, he's His

0:45:05 Thomas: Yeah, you're right. It's possible. I mean he tweeted in all caps. I'll see you in court. So yeah.

0:45:05 Andrew: Right. Yeah, which I was just thinking of that Saturday Night Live routine of "I'll see you in hell," but, uh, um, yeah, it, it's fear the of losing has caused him to dig in his heels in such a way that any, any administration, you know, if this were President George W. Bush again, they would simply drop this executive order and issue a new one and moot this major argument, which, as I've been flagging all along, this is a good argument, individuals, right, who are lawful permanent residents who are traveling abroad and seeking reentry into this constitution into this country have certain constitutional protections.

They don't have the full panoply of constitutional rights, but they are entitled to due process and they didn't get it with this executive order. Obviously, you could craft the order in such a way as it only applied to people who do not have U.S. constitutional due process rights. And, you know, the fact that they haven't done that means that, you know, there's... there's more of an opening for the entirety to be struck down, even though, you know, ninety nine percent of it applies to people without without those rights.

0:45:41 Thomas: Yeah.

0:46:15 Thomas: So Let's assume he doesn't recraft that executive order. We're still, because another thing that I've seen in the news, it has sounded like from the news coverage, the next step is the Supreme Court. But from what you said in the beginning of this, that seems like it's skipping a step, right? Because doesn't this three-judge panel still have to evaluate the actual merits?

0:46:31 Andrew: Have to rule on the merits. Yeah. The next step is another is another decision from the Ninth Circuit, not the Supreme Court.

0:46:33 Thomas: Okay. Interesting.

0:46:39 Andrew: So that's another area where where they've gotten it wrong. Well,

0:46:41 Thomas: So is There anything Trump has has to lose, I guess, by by just hearing that out and then if that doesn't go his way, then recrafting an executive order? Oh

0:46:51 Andrew: Here's where he may have had something to lose, and that is the second grounds that the Ninth Circuit gave in denying the stay. And this was something that I ascribed almost no likelihood of success to previously for reasons that I'm about to explain. Um, but before I do that, let me say parenthetically, um, you may have seen Trump, uh, retweeting a, like, Lawfare article or something that said Yeah.

0:47:17 Thomas: Yeah. Yeah.

0:47:18 Andrew: That said, uh, the Ninth, the Ninth Circuit's ruling didn't cite, uh, 1182F, uh, 8 USC 1182F at all, and, like, that's true, right? Right. And it didn't cite the Immigration and Nationality Act, which is 1152A. Right. So there was no, the main conflict was not discussed in this at all. And I think, because, you know, my view on that, and I think the mainstream judicial view on that really hasn't changed, that that, that the interplay between those statues is really clear, that 1182F gives Trump the authority to do at least 99% of what this executive order does, and that the immigration visa portion in 1152A does not invalidate the larger rule. So that's not there. But what the Ninth Circuit did highlight was the religious discrimination test under the First Amendment.

0:47:24 Thomas: Yeah.

0:48:12 Andrew: And the reason that I had not given any likelihood of success on this argument is because to show a discriminatory intent typically requires the legislature, or in this case, the legislature in passing a law, or, in in this case, the president in promulgating an executive order, to be so stupid and transparent in describing what they want to do as as to give away the game, right? And you may recall when we did the episode on Scalia talking about religious discrimination, we talked about the, the Santeria and the ordinance banning chicken sacrifice, sacrifice, right, and the, and one of the only ways in which you get that is when, you know, the legislature says, "Be it resolved that we find Santeria icky and disgusting, and therefore we don't want these religious freaks to be sacrificing chickens," uh, that's really the only way in which you get those kinds of laws overturned.

Um, and all you have to do is repass the law as, you know, the City of Hialeah Safety in Poultry Act, in neutral terms, don't mention, oh, we find those Santeria people icky. And then if it disproportionately, you know, oh well, turns out only people who practice voodoo tend to sacrifice chickens are bad. But it goes through anyway. Anyway, what the Ninth Circuit did was put on as a matter of public record the administration's statements about this being a Muslim ban and to

0:48:45 Thomas: Right. Yeah. Yeah.

0:49:42 Andrew: Show a discriminatory animus. And so, so I wanted to read that section, really, this is page 25. Uh, they say, uh, "In support of the equal protection, uh, and establishment clause argument, the states have offered evidence of numerous statements by the president about his intent to implement a Muslim ban, as well as evidence they claim suggests that the executive order was intended to be that ban. It is well established that evidence of purpose beyond the face of the law may be considered in evaluating these kinds of claims," and then they cite my santa ria case that I talked about. Uh, then they say, the state's claims, and all this is, this is all the Ninth Circuit says, "The state claims raise serious allegations and present significant constitutional questions. In light of the sensitive issues involved, the pace of the current emergency proceedings, and our conclusion that the government has not met its burden of showing the likelihood of success on appeal of its arguments with respect to the due process claim,"

0:49:41 Thomas: I

0:50:36 Andrew: We reserve consideration of these claims until the merits of this appeal have been fully briefed. OK, so this is an area where because there was such I mean, it's not even dog whistling, right? Because Trump went to Giuliani and said, you know, hey, Rudy, how do you craft a Muslim ban? Right. This is what Rudy Giuliani said. He said, so when Trump first announced it, he said Muslim ban. He called me up. He says, put a commission together. Show me the right way to do it legally. Um, and because, you know, they have been so, yeah,

0:50:48 Thomas: Yeah. Yeah. And They couldn't Even do that? By the way, geez, they put it through a commission together to do it and they can't even doing It right.

0:51:11 Andrew: No, they had to do it in the first, you know, 15 days. And that's, and that's why we are, we are where we are. Um, so all of that, uh, one of the things that, folks you have been getting on me lately about, uh is, you know, describing a situation and saying, well, you know, the law doesn't give you a whole lot here. This is a situation where the administration's pandering to certain groups, right, to the racist elements of their base is coming back to bite them on this, right?

I don't want to overstate the importance of what the Ninth Circuit said there, right. They didn't even say the government has failed to show a substantial likelihood of success on its Establishment Clause argument. They just said there are serious questions. They have been raised. And because they didn't win on due process, we're also going to hold open this argument. But that argument wouldn't be there. It would not be an argument were it not for what the administration has said publicly and in semi-private. So if you want a bit of a silver lining, I think there's that kind of bit of silver lining there.

0:51:40 Thomas: Yeah. Yeah, yeah, yeah. Well, geez, thanks for explaining that because I really, even I who have been trying to like keep, you know, Andrew's advice and Andrew's wisdom in mind, still, it sounds like I had a lot of misconceptions there and I'm sure others did as well. So thanks for clearing those up. So I guess if we could, could you give a quick 20, 30 second summary of where does that leave us? That leaves us with, or maybe I'll try and you can just correct me. That leaves Us with the same three-judge panel yet to make a decision on the merits, so that could really go either way. But you're thinking now it's been muddied up enough by the fact that this order applied to current green card holders, which is the part that may be unconstitutional, that that's in doubt, too. Or would you still predict that that three-judge panel will find it constitutional on the merits? Yeah.

0:52:47 Andrew: Yeah.

0:53:14 Andrew: Ultimately, I think on the merits, the TRO is going to be reversed. But I am more optimistic. Two weeks ago, well, a week ago, I would have said 90 to 10, 85 to 15. There was a very, very strong likelihood. And now maybe I'm 70-30, right? Like, I think there's a crack out there that, overbreadth and the discriminatory statements that are now a part of the record, are, right, in my mind, those are better arguments, right. Right. I mean, I stand by my initial assessment that the 1152A argument that was put forth by David Boies, that's still a bad argument. That's still ninety-five-five the other way, as far as I'm concerned. But taken together, I think there's...

There's some reason for optimism. And I would point out there that there's more things. Number one, because of the way in which this is moved procedurally, the TRO will be in effect while the merits are being considered. So the executive order has Has stopped right Now. And That's a Good Thing. And the second thing is, you know, that it is the same panel who is considering the merits that considered the government's arguments on the stay motion. And, you Know, once one of the hardest things to do, I mean, this is this kind of gets back into practical tips. Of one the hardest things to do before a judge is regain credibility when you've

0:53:47 Thomas: Right. Yeah. Yeah.

0:54:42 Andrew: Lost it. It's 100% true. It's one of things I try and do all the time. And I argue before the appeals courts in the state of Maryland. I've argued before the Fourth Circuit. You have to balance out. You want to make your arguments as strongly as possible. Uh, but you have to, you always have to do it in a way that is, um, fair, uh, and transparent. And, and I will often say in court, you know, when the judges will say, you know, "Well, what's your argument here?" And I will say, "Well, your honor, let me be honest with you. Uh, there are two courts, there're two cases, two courts that go the other way. And I address those in my brief, but the overwhelming weight of the law is in X direction." And the reason that you do that is to let the judges know that they can trust what you're saying and that you're a zealous advocate, but you're not an advocate who's willing to stretch the truth.

0:55:35 Andrew: And I believe that really firmly. And I think that government lost a lot of credibility in the oral argument, and that it be wrong looking at the process to say that that's not going to have an effect going forward. It very well could.

0:55:50 Thomas: Well, thanks for that breakdown, as usual, Andrew. I, I think I really understand a lot better now.

0:55:54 Andrew: Yeah, and I actually talked about some additional issues relating to executive orders on episode 103 of the Gatheist Manifesto podcast with our friends Callie Wright and Ari Stillman that I will link that show in the show notes. So if you've enjoyed this discussion, would like to hear a little more. They do a great show anyway, you should be listening. But check out episode 103. three of the Gathius Manifesto.

0:56:22 Clip: He who questions training, only trains himself at asking questions. What?

0:56:30 Thomas: Time for our listener question for the day. Schofield, uh, Miller asks, "I was wondering what was the point of sentencing someone to multiple life sentences, 10 life sentences plus 45 years. What do they have to die 10 times and then serve 45 years?" Great question. I'm sure there's a very simple answer to this. What is it?

0:56:48 Andrew: Yeah. Yeah, the very simple answer, and it varies state by state, but a life sentence without further criteria on it nevertheless makes one eligible for parole. And so sometimes you become eligible for payroll from a life sentencing after 25 years. Sometimes it's 20. I think in a few states it's as little as 15 years. So by handing down multiple life sentences, you push back the possibility of parole. And not all states have a life, a whole life imprisonment without the possibility of parole, some states do. But not all States do. So, so you can do that. And there is a fairly famous case, I don't recall the name in which, you know, someone someone received, I think a thousand year sentence, right?

0:57:39 Andrew: Like, and, and the idea there is that you have just made sure that mathematically that that case never comes up, uh, for parole and, and, um, and parole, you know, you sort of think about it as, um. You get, released if there's, you know, if you're sufficiently good enough or if you are sufficiently rehabilitated, um Again, you know, I'm not a criminal lawyer, but the primary purpose of the parole system is just that our prisons are dangerously overcrowded.

0:58:04 Thomas: Overcrowded.

0:58:04 Andrew: And So the evaluation, from my understanding, is not, you know, have you been sufficiently rehabilitated? Have you, you've done enough time, you're paid enough of your debt. But really, it's just kind of a simple calculation of, "Okay, we need that space. And is this going to cause a manifest danger to the folks around us or not?" So, you there are crimes for which have decided as part of the process that we just, we don't, we don't want to even funnel anybody into that process. So that's why you would have the multiple life sentences. Yeah.

0:58:05 Thomas: Yeah.

0:58:39 Thomas: Good question, but a straightforward forward answer. So all right, it's that time of the show where we've got to thank our new patrons. It is our pleasure to thank those who went over to patreon.com/law, pledged us a buck or two, or maybe even more.

0:58:54 Andrew: So thank you to Leslie Hagler, to Lisa Hodges, Ian Ryan, Neal Stanifer, Rebecca Oxford, Kelvin Hanson, Butch, Mark Bysfield, to Ashley Torlone, Garry Myers, and thank you to Laura Mason.

0:59:10 Thomas: And thank you, Christian Jeffery, John Roberts, Some Indian Guy, Bruce Chapman, Aaron. Oh, Aaron Grady, with a pledge at $5. Thank you, Aaron, very much. Will Anthony, Please take legal advice from this podcast. Yeah.

0:59:26 Andrew: Notice, notice that I did not read that new patron, so it doesn't do any good.

0:59:28 Thomas: Yeah. People Are Really Trying To mess with us. Um, Wordorigins.org, Marissa Alexa McCool and her fabulous snarky publishy stuff, thanks for that. Thomas Assunto, bongobot, Caz Bailey, Marie Smith, Angela Adcock, Lisa, Kris Van Pelt, Clifton Stuckey, Kyler Wayant, Spencer, bythelake23, Zorin Dobson, SANDY COLBY CARR, Brian Hukee, Nathan Fry, Matthew Haberlie, Jayme, and Plague of Hats.

1:00:11 Thomas: Plague Of Hats, that's an interesting one. Thank you guys so much for pledging. You know, we've gotten such great support here that I was thinking we were talking about before the show, we have got to add another Patreon goal. So what do you think, Andrew? Should we unveil our idea for a Patreon goal here?

1:00:12 Andrew: These are great.

1:00:28 Andrew: Yeah, I think we should.

1:00:30 Thomas: So we get so many questions, way too many. And I say, wait, Andrew gets so many questions. Sometimes one time somebody emailed me and was like, Hey, where's Andrew? But that's the only question I get. So, so We get so many great questions and, and it's, it's really, I feel bad for Andrew Drew, because it's far more than you could, a human, a single human, much less one with, you know, full-time work and a podcast could ever answer. But we appreciate them. We love them. We use plenty of them. But, we're thinking a good idea would be to do a monthly patron-only Q&A show. So, that would be, you know, another benefit for our fine, fine patrons. It would be you know it's going to be what maybe 25-30 minutes. Answer all the questions that we can't get to for patrons only over on patreon.com/law so I think we're going to add that goal at 1750.

1:00:43 Andrew: Andrew's right over there.

1:01:26 Andrew: Yeah.

1:01:27 Thomas: So get us there, friends, and we will, uh, we will have that bonus content for you.

1:01:32 Andrew: Yeah. And let's, and let's be clear that that show will be, we'll do that once a month going forward and we'll do that at every patron level, right? Then we'll do that for our dollar patrons.

1:01:39 Thomas: Yeah. Everybody.

1:01:40 Andrew: Um, but we need to get our overall total to $1,750. Um. So I just wanted to be clear. I know some folks have asked me questions about the difference between a goal and a pledge. We're not saying you've got to, we've got, we're going to get somebody willing to pledge that amount. Um Though that'd be a lot. Um, although we won't turn that down if you happen, eccentric billionaire, who loves opening arguments, or you have a friend who is an eccentric billionaire who loves reopening arguments Yeah.

1:01:40 Thomas: Hmm. Yeah. Yeah. We're always looking for eccentric billionaires

1:02:08 Andrew: Yeah. I I I totally agree, and we, we would, we would be remiss if we did not, speaking of eccentric billionaires, uh, if we didn't give a very special shout out to, uh, one of our, uh, top patrons of all time, uh, Zabby, uh, you hear him every week, uh, he's been such a, a great supporter of the show, uh, and he sent us a, um, a special Yeah.

1:02:09 Thomas: In general, just if you know any, duffel bag full of money.

1:02:32 Andrew: Literally, it had a, it had a dollar sign on the front of it, no, it was just, um, we are both, uh, humbled and a little bit at a loss for words, uh, for your kindness, and we wanted to take a little bit of extra time to, uh, to say a special thanks. Yeah.

1:02:47 Thomas: Absolutely, thank you Zabby, we really appreciate that, and thanks for all the pledges, and so 1750 will be that Q&A, and then after that it's a short hop, skip, and a jump to our two thousand dollar live show goal, so we're really looking forward to that, that's, it's going to happen someday.

1:02:50 Andrew: Yep. Oh, Yeah, and Yeah, No, and, and soon, I think, um so.

1:03:04 Thomas: Yeah. I hope So.

1:03:05 Andrew: And, while we're on that, it, uh, is my bad that, um, I had ordered, uh, Hall of Fame patron shirts for our Hall of Fame patrons, uh, who, uh, were our top, uh, 20 patrons for 2016, um, and I finally sent those out, out today, um, so I've been, yeah.

1:03:22 Thomas: Was gonna say 2016, you mean that year that ended quite quite a few months ago.

1:03:25 Andrew: That year that ended right?

1:03:26 Thomas: Yeah. I

1:03:26 Andrew: I had it ready to go at the end of the year, and it's been, uh, the move to twice a week, uh, in January, plus I'm opening up a new law office, um, so it's, it's ben a challenge to, to do all of the fulfillment, we, we really do, we, we get those, uh, we get those goals out and done, so I'm going to post some pictures, uh, you may have seen it on social media by the time you hear this show, hopefully, uh, those shirts will be in your hands, um, we're, really proud and excited, I'm actually wearing my non-Hall of fame

1:03:55 Thomas: Was gonna say I'm looking forward to getting mine right, I figure that do I need to pledge the show to get my shirt, or can I yeah

1:03:56 Andrew: Yeah shirt right now, um and that's that is the case yeah You, you do, you are, you're a, you're what we call a freeloader, uh, just downloading the show for nothing, uh, but also, if you are interested in a regular Opening Argument shirt, um, drop us an email, we're, we're trying to set up a storefront to make it simple, but right now, uh, we definitely have, uh, shirts that we would be, uh, willing to sell you over the email, they are, uh, they're beautiful, and you can, uh, run around, and it's got, uh, "Don't take legal advice from a podcast" on the back, they're, they're good shirts, man, so yeah

1:04:31 Thomas: Yeah, we will literally sell you the shirt off our back. No, all right, thank you guys so much, and thanks Andrew for getting those shirts out, that'll be really exciting to see once we get to, to our live show, I'm sure everyone's gonna wear them to the live show. All

1:04:35 Andrew: Unworn, unworn for these, so, oh, my gosh, yeah, yeah.

1:04:49 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:04:55 Thomas: Well, now is where we find out if I really am the legal expert and Andrew really is the comedian, because I, I want to know, question 10 to "Thomas Takes the Bar Exam," whoo, here we go, did I, get am I going seven for ten or six for ten, big difference there. All

1:05:10 Andrew: So this question, uh, as you may recall, uh, involved a roommate who filed a false claim, uh, that, uh, his roommate came in and stole his home theater equipment, right? And so the police investigation determined, uh, that this guy was vengeful and that he'd been arguing with his roommate and that he was not necessarily trustworthy and that he never had any video equipment. So the police dropped the prosecution, and then the roommate filed a civil case against, against his crazy lying roommate for, for malicious prosecution. And then the question was, will, will the evidence of defendant's reputation for dishonesty be admissible? And this was.

1:05:22 Thomas: Right, oh, They were all four yes

1:05:53 Andrew: Yeah, this is my favorite question so far, because all four answers were yes. And the only issue was what was the reason? So we had a yes, because dishonesty at any time in the past is always relevant to malicious prosecution. B, yes, porque even though character evidence is too collateral to be admitted for circumstantial evidence, it is admissible if it is directly at issue in the case. C, yes, because reputation evidence, just like most character evidence, is virtually always admissible. And D, yes because while most character evidenced is not admissible, some is, and reputation evidence is always admissible." And Thomas, you want to insert the drumroll?

1:05:53 Thomas: Answers, oh, man, uh, We'll see, uh,

1:06:36 Andrew: You guessed A, and the answer, I'm sorry to say is B.

1:06:43 Andrew: B, that character evidence is too collateral to be admitted for circumstantial evidence, but it is admissible if it is directly at issue in the case. And that is Federal Rule of Evidence 405B, which is that character evidenced may be offered when it is relevant to the material facts of the case, so the original person who filed the police report is now, uh, the defendant in an action of malicious, of malicious prosecution, which is tough, tough cause of action to say, I should point out, um, his state of mind, uh, goes to, uh, the gravamen of the lawsuit, so since the character is directly at issue, it can be proven by, this is the language from, uh, Rule 405B, reputation, opinion, or past acts evidence, evidence.

1:06:38 Thomas: So What was, a what did I say?

1:07:32 Andrew: You? Said dishonesty at any time in the past is always relevant to a malicious prosecution complaint, um, that's not the case, right, it's, it's a really, really close one, um, I will tell you, I, uh, have not been, been playing along with Thomas Takes the Bar Exam, uh, you can take this for whatever it's worth, this is the first question that I have gotten to where, uh, I looked at the four answers and I said, boy, I'm not entirely sure how I would answer that. Um, is a tough one. So all of these answers had things that sort of threw me off, right? A is a rough one because it's got the word always relevant in it. Right. And, uh it, so that's a difficult one. Uh, B, uh is, is correct, but seems duplicative of a right.

1:07:48 Thomas: Oh, wow yeah yeah yeah exactly

1:08:19 Andrew: Like, Like, yeah, C says reputation evidence is virtually always admissible. That's not true, there is reputation evidence is frequently admissible, and so, you and then D was yes, while most character evidence is not admissible some is, and reputation evidence has always been. That's the one I could, is sort of least likely, but choosing between A, B, and C is tough. I don't know that I would have guessed, uh, be, I would have been guessing. So in scoring this for myself, uh I would give myself, Uh, the incorrect on this one as well. Uh, so it's yeah, it's a tough one. It's a tough one

1:08:31 Thomas: Oh man, yeah well I, thanks for that pity, uh, incorrect that you're giving yourself at least I got the yes part right, right?

1:09:02 Andrew: Yeah, there you go And but we do You, you are six for ten. You were still skating along the line of passing, so it's not, uh, uh, getting question 11 right would be crucial. How about that? How about we stick with that um

1:09:04 Thomas: Boy, that sucks. So I'm six for 10. Yeah, sure. I'm hoping nobody got this right, but Andrew, who was our lucky winner who I'm sure cheated and there's no way they knew this.

1:09:17 Andrew: Yeah Yeah, this week's winner is Carl A. Earl Jr., who goes by at Kith Cannon, K-I-T-H-K-A-N-N A-N on Twitter, who writes in his entirety, poor Thomas, the answer is B. If I sue P.A. Torres' law for being a vindictive lying bastard, I get to provide evidence that he is a lying liar. That's 100% correct on a very difficult question. Plus, it insults me and it's pithy. Uh, so congratulations to Carl A. Earl Jr., this week's winner. Uh, keep it up, although I can't promise in the future that insulting me is the way to go, but dang, one this week.

1:10:02 Thomas: Well, it just goes to show that question 11 is going to be a critical question as every single one has been. All right. Well Well, that's all we've got for you today. Thank you so much for listening. Thank you to our fine, fine patrons over at patreon.com/law. And thank you to Andrew for being the best expert that there is. So we will see you on Friday.

1:10:34 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.