OA67: Trump's Executive Order on Religious Freedom

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 67. I'm your host, Thomas Smith. That over there is your other host, Andrew Torrez. How you doing, Andrew?

0:01:25 Andrew: I'm great, Thomas. How are you?

0:01:26 Thomas: I'm doing great. We got a lot of good questions that are going to be answered in this episode. I am, like, every episode is great. Don't get me wrong. This one, like every single segment, I'm like, gosh, I cannot wait to know what Andrew thinks about this. So I'm really excited.

0:01:40 Andrew: Oh, me too.

0:01:41 Thomas: Know, today's episode is brought to you by patrons.

0:01:46 Thomas: So we just quick two second thing. We actually had a sponsor for this episode offered to us, and then we were kind of doing our research on it, and it just looked like something where every single complaint online was that they were were selling people's information, phone numbers, and then harassing with salesman calls and all that. So we took a look at it, and we balanced, on one hand, sure, it's sponsorship money. On the other hand, we really did not want to lose our credibility and risk, for a product for you guys, that's going to do something like that, like sell your information and put you guys in any sort of jeopardy of that kind of thing. So it was, uh, in the end, it ended up being a pretty easy decision of just, like, we're not going to mess with that in any way.

0:02:35 Andrew: Yeah. Yeah. And let me be direct about that. Most people know, Thomas, this is your job. You no longer have employment with the state of California. We're both super happy with that. This is half of my job, too. I mean, most people know that, I put in, you know, probably about 15 to 20 hours a week doing the show. There are, you clients that I turn down as a result of it. I don't in any way regret that. I love my job. And, you know, we talked about ReasonCon and everything. I'm like, I love the fact that we can both do this. But it is, you know, I've had a couple patrons say, oh, well, you know, you're a lawyer, you, you know, you must be making bank and everything is good. Like the show is the primary employment for one, Mr.

0:03:23 Thomas: Oh.

0:03:23 Andrew: Thomas Smith. So, you we try and keep our begging to a minimum. Hopefully we do a good job in giving you all sorts of fantastic patron appreciation like Law'd Awful Movies. And we

0:03:35 Thomas: Speaking of Law'd Awful Movies number six, get it. Go get it. It's great.

0:03:38 Andrew: Had a lot of fun. We had great fun with Callie doing Double Jeopardy, which was a patron, a patron suggestion. Oh, yeah. But I'm going to make, I'm gonna make an explicit plea, turn down income to do this because, you know, that's our commitment, right? We're only going to do ads where we're comfortable with the product or service being sold. You appreciate that and can toss us a buck, we would love to have the buck. So please consider that. Go to patreon.com/law. And just, hey, look, if you can't, we always say this too, right, we have a lot of students, we have a lot of, uh, people who are between jobs. We have a lot of people who, uh know, sort of partially employed. We know times are tough for a lot people. So, you know we, we will always do the show for free. Uh, but uh, but if you can, if you, if love the show and you've been on the fence about, uh about kicking us a buck, uh A, we think you won't regret it. Um, the, the patron discussions are fun and our patron benefits are fun.

0:03:44 Thomas: Highly requested, highly requested.

0:04:34 Andrew: Uh, and B, uh, this would be a really good time to say, "Hey, we approve of your decision not to, not to stick us with with crap advertisers who are going to potentially scam us and steal our money.

0:04:39 Thomas: Yeah. And just one last thing on it. Patrons, of course, no matter how many advertisers we don't have right now, but that patrons will always get an ad free version of the show. So just so everybody knows.

0:04:54 Andrew: Yeah. And When we get, when we gets good deal, because sometimes our advertisers give us special deals, the way we handle that is we cut a special patron only Q&A episode and and release at the end the deal for patrons who want to hear it. You can skip over the ad if you want. But you also get, you know, one or sometimes a couple questions extra per month. So hope that our advertising policy is something that that our fans and listeners agree with. If you disagree, if this annoyed you, let us know. We are really trying to hit that balance. And with that in mind, I'll stop the plea right now.

0:05:10 Thomas: Yeah, Get off your soapbox. No, I'm just kidding. All right. Get on a different soapbox where you answer legal questions because Because we've got, I am picturing a series of different soapboxes that you have during this recording, like you've got to step to your, ah, this is your breaking down the law soapbox. Let's go to our first listener question.

0:05:47 Andrew: For free, twice a week.

0:06:00 Clip: He who questions training, only trains himself at asking questions. What?

0:06:08 Thomas: Guess whose question it is? Dan Dan, the conservative man, one. One of my favorite patrons. Are, uh, only one of our few known conservative listeners considering. Dan Dan the conservative man has a question regarding the sanctuary cities, uh, segment we did, I guess most, most recent episode, if you're listening to this in order, and he wanted to know, considering this case Utah versus Strieff, is stopped legally? If the police find an outstanding warrant during an illegal search, any evidence they find is still, still admissible, he says, according to this case, I think. Along the same line, illegal immigrant status be prosecutable? Is enforcement optional or obligatory once they know?

0:06:14 Andrew: So, Um, uh, there's a great question, there's a ton of stuff to unpack here obviously, we can't do it all in a single listener question segment. Um, I will add parenthetically, you know, we, we give Dan Dan a shout out all the time. If you are a conservative, uh, or a libertarian listener, uh, you know, get involved, uh, particularly on the, on the Patreon discussion boards, uh, challenge us, uh, and, you know, we enjoy that kind of, of dialogue back and forth. Um, it, it's a, it's good way to get noticed. So if you're, if you, out there thinking, uh, you know, what's a good way to get my question, uh, what's a good way to get my question heard, uh, being contrarian, uh, is, is a great way, right, like, we're both skeptics. The whole.

0:07:34 Thomas: Yeah, I'm pretty sure every listener of ours now knows the name, Dan Dan the Conservative Man.

0:07:39 Andrew: Right. But, you know, we're skeptics. The whole point of the show is to help you differentiate fake news from real news. We try and be skeptical of our own side, and nothing is, is, and nothing makes that easier than having somebody who sincerely disagrees with us. So with that as preface, there are a couple of things that I want to do here. So in answering this question, number one, uh, I want to refer, I know he was a patron, I know he's probably heard OA 52, uh, we plugged that at the end of last week's episode, I'm going to plug it again, uh, the, the C segment, right, right after our, our main discussion, which was, I think, a fabulously entertaining, uh, effort of, uh, of Thomas to define legal terms that were suggested by our patrons, uh, yeah, this is that one.

0:08:21 Thomas: This was that one? Oh, man. Yeah, That was fun. Everyone can listen to me being embarrassed for not being able to find anything.

0:08:28 Andrew: But in, in the segment that immediately follows that, about 40 minutes in, we read and critiqued to some extent, but a mostly accurate Facebook post from an immigration lawyer that correctly summarized, in my view, again, I'm not an expert in this area, the status of various immigration laws. And we learned a lot. In particular, the term illegal immigrant, right, is only defined once in the U.S. code. And it has a very specific, narrow definition. So the end part of the question about, you know, aren't they here illegally and can't you move forward and prosecute that? The answer to that question is, political term illegal immigrant lumps together a lot of different categories of individuals, and it's not that simple and straightforward.

0:09:18 Andrew: And not just because of, you know, hippie, liberal, lefty tree huggers, but but because of the actual status of the law as modified, you know, in conservative presidencies with Republican Congress, that there are a number of different ways in which somebody can be out of legal status in this country. Members of the legislature of both political parties have voted repeatedly to keep those distinctions in place, right? So that is the distinction between a student who overstays her education visa, an employee who overstay his work visa, and sort of the classic person who sneaks across the border from Nogales, right, like so So all of those things get.

0:10:04 Thomas: Those are very different things, so yeah,

0:10:07 Andrew: Yeah. So they get lumped together.

0:10:07 Thomas: Definitely definitely check out that episode for more, more full explanation of that, for sure. Mm-hmm.

0:10:09 Andrew: Right. Right, but I also wanted to answer the Utah versus Streef question, right? And so this is not an immigration-related case, okay? This is a case, But this is a place about the principle to which Dan Dan alludes here, which, I, I think, I think he's gotten the message from some of the more conservative decisions that have come out of circuit courts of appeal and the Supreme Court, uh, but, but the law is a little bit wrong, so, I, I do want to clarify that. So, what is Utah v. Strief? Utah, Strief was, uh, Strief, uh, had an outstanding arrest warrant, uh, for a traffic violation, okay.

Um, based on various police identifications, the police detained him and then lacked probable cause and also a search warrant. Searched him illegally, found meth and drug paraphernalia. Uh, and, so at trial, uh, Strief moved to suppress that evidence, uh, pursuant to a principle that I'm, I'm about to discuss, uh, and, uh, this case, this was a Utah state case, it worked all the way up to the Utah Supreme Court, uh, the Utahr Supreme Court ordered that evidence suppressed. They appealed to the U.S. Supreme Court because you can appeal a state supreme court decision that touches on the interpretation of the Constitution to the U.S.

0:10:16 Thomas: Really? Mm-hm.

0:10:40 Thomas: Kagan,

0:11:35 Andrew: Supreme Court for authoritative and final guidance. And the U.S. Supreme Court in 2016, this was a 5-3 decision. And so this was the conservative bloc joined by Anthony Kennedy. And then the dissent were the Kagan, Ginsburg, and Sotomayor, and notably Stephen Breyer cited with the majority here. So Roberts, Kennedy, Breyer, Alito, and Thomas. And a little bit of an, yeah, I mean, a little bit of unusual alignment. And I'm going to talk about that in a second, too. And they reversed the Utah Supreme Court, and they said that it was perfectly reasonable to admit the evidence, uh, even though it was the result of an illegal search and seizure. So, uh, yeah,

0:11:50 Thomas: Sotomayor, oh, boy. We don't hear much about Breyer. Wait, all of it? Oh, I thought

0:12:23 Andrew: Yep,

0:12:23 Thomas: You were gonna say they just, they allowed him to be like arrested for an outstanding warrant or whatever it was, but they're saying all of that, like, even stuff they found with an illegal search, I thought that was like a pillar of our legal system that you can't

0:12:33 Andrew: Yep. Exactly. So now you would think it, you would Think it would be right. So that, so you and Dan, Dan have, uh.

0:12:40 Thomas: Wow. Oh, but the original wording of No, I'm just, I can't wait to get cut to that, so

0:12:44 Andrew: Right. Have the exact opposite, right. Have the exact opposite view of the fourth amendment. Uh, and I understand why both of you have those, have those beliefs. And And so the reality is much Closer to Dan dan's position Than it is to yours, but neither one of you have it kind of exactly right. So it's worth it's worth going through.

0:13:03 Thomas: We both fail the bar, not just me, and

0:13:05 Andrew: So what's the principle that's at stake here? The Fourth Amendment to the the U.S. Constitution says that the officers of the state may not search your premises without a search warrant. And the principle that developed in enforcing this provision of the Fourth Amendment, the Search and Seizure Clause, was a principle known as the exclusionary rule. This was a rule developed by the court in the 1960s, right? So this is not a longstanding provision in our law. We have only had the exclusionary rule for 50 or 60 years. And the exclusionARY rule basically says this, that if you have primary evidence that is obtained as a direct result of an illegal search or seizure, that evidence is excluded from trial, right?

0:13:58 Andrew: The state may not introduce it as part of the prosecution in a criminal proceeding. They have to pretend like they didn't find it. And the reason for that is there is no other constitutional remedy that would avoid the The problem of that would avoid this problem, right, which is to say any other rule then would strongly incentivize local police to violate the Fourth Amendment, go in, illegally search the homes of people that they think are criminals.

0:14:29 Thomas: Then when they find something, it's cool.

0:14:35 Andrew: Right. And then when they find something, charge them with it. And then whatever your alternative remedy is, right, like, well, should you sue the police? You know, none of that matters, right? Like, yeah, yeah. Good luck doing that right as an impoverished defendant in jail with a criminal conviction on your record, because then you're just talking about testimonially. Yeah, right. So so the court said we get that this isn't ideal to you know, you you you don't have a search warrant. You're going through someone's house and you find the bloody knife. That bloody knife is not going to be admissible at trial subject to what I'm about to explain. And so We get that that may result in the murderer going free. But the original idea behind the exclusionary rule is it's better for that murderer to go free than for us to eviscerate the protections of the Fourth Amendment. And

0:14:36 Thomas: Yeah, yeah, good luck doing that when you're in jail. Yeah.

0:15:12 Thomas: All Right, yeah.

0:15:26 Thomas: Get

0:15:26 Andrew: By having, yeah, by having a bright line rule that says get a warrant that disincentivize, that provides a massive deterrent to the police violating your rights because, you know, presumably.

0:15:27 Thomas: A warrant boy, I I never realized that that was only 50 years old or so. I'm very curious to hear about this. Okay, boy.

0:15:39 Andrew: Yep. Yeah. Yep. Immediately upon sort of that creation of that judicial rule, subsequent decisions started to eat away at it. So there are numerous exceptions. I'm going to briefly mention two, and then I'm gonna talk a little bit about the third one that was at issue in the Utah v. Strief case. But let me say this. The exclusionary rule, yeah, he really is, right? The exclusionARY rule is still a valid rule, right. It is still a valid interpretation of the Fourth Amendment. So Thomas's position applies, but the exceptions to it in many cases kind of swallow the general principle. So I'm not surprised that Dan Dan has the view that there's no such thing as the exclusionary rule anymore. There is.

0:16:06 Thomas: Dan Dan's getting his money's worth with this question, okay. Yeah, it's been, been, it's been whittled down to like one obscure, like crime is the only thing that's excluded.

0:16:33 Andrew: Yeah, it's been whittled away. So well, here's here's how it gets whittles away. Right. So, number one, there is right there's an exception for exigent circumstances, right, and again, you can understand that, right, and that is, uh, you know, you hear, uh, kidnapped victim's screams inside the house, right?

0:16:41 Thomas: If it's a Tuesday, if it's, oh, no.

0:16:55 Andrew: Well you know well Yes, but you don't have to get a warrant, right? And the reason is, right If we have to leave the scene and go get the warrant, even if we've got a judge on speed speed dial, right, that's going to take us a couple of hours. And if.

0:16:54 Thomas: Yeah, but isn't that probable cause anyway? Right, right. Oh, so you're saying the problem, the whole probable cause thing that I probably have in my mind anyway is all, that is an exception to this. Like we need to frame it that way.

0:17:10 Andrew: Yeah. Yes. If you have if you have probable cause, then what you do is that the Fourth Amendment says is you take probable cause. You go to a judge and the judge will issue a search warrant. This is the text of the Fourth Amendment that describes with specificity the places to be searched and the things to be seized. Right. So that's how it's supposed to work under the Constitution. Right? But correct.

0:17:15 Thomas: Okay. Okay. Okay. Hmm. Okay, okay. So, even under the Constitution, we wouldn't have been allowed to do this, like, kidnapper-victim scenario. Wow. How do, how do, uh, how did originalists feel about that?

0:17:42 Andrew: Correct. Correct. Yeah. Right. Right? I don't know. That's a really good question.

0:17:48 Thomas: Hmm. Interesting.

0:17:49 Andrew: And so yeah, so the idea is the exigent circumstances exception says, yeah, you've got the kidnap victim screaming from the basement, you can kind of see through the window, do we really want to wait three hours? And you know, maybe she's dead? Or do you want to break the window and rescue the woman out of it? Right? And that's, that's what you see in cop shows all the time.

0:18:08 Thomas: Mm-hmm.

0:18:09 Andrew: You know, the reason why they can break into?

0:18:10 Thomas: Virtually every episode of every cop show.

0:18:12 Andrew: Yeah, right, exactly. And what they're what they are relying on is the exigent circumstances doctrine. Right. So exigent circumstances don't need a warrant. And I know. Feel free to send me the emails. I realize I'm covering this at a at a pretty shallow level. If you think I if you're one of our lawyers, particularly one of Our criminal lawyers who who listen to the show, you think I get something wrong, please let me know. But I think I'm doing justice here. The second and by far the most most common exception to the exclusionary rule is something called the independent discovery doctrine, right? And what you do is, if you are the prosecution working with the investigators, you essentially come up with an alternate history version of events, okay? And you say, yes, we got this bloody knife as the results of an illegal search, but here's how we would have have discovered this knife legally, even if we hadn't.

0:18:26 Thomas: Right. Oh, I know this. Yeah. Yeah.

0:19:08 Andrew: And so if you can connect that up and depending on which jurisdiction you're in, more and more judges, moreand more circuits are very lenient about the inevitable discovery doctrine. You connect it up and then the court says, yep, that's right. You would have discoveredthis without the illegal search, and therefore we're going to allow that evidence to be admissible. And the Fourth Circuit, we've talked about how, you know, that's what governs Maryland, Pennsylvania. It's a pretty, West Virginia, it's a pretty liberal circuit on a lot of issues. It is very conservative on criminal issues, and in particular on Fourth Amendment search and seizure cases. So, you now, it, it it's another example of how judges don't necessarily line up with, you know, political beliefs.

You know, you can be sort of very socially liberal, but still, you Know, kind of, quote, tough on crime, and the Fourth Circuit is a good example of that. And then the third example that is at issue in Utah versus Strieff is something called the attenuation doctrine. Okay.

And So, and the attenuation doctrine is kind of exactly what It sounds like which is To say, If the connection between the unconstitutional police conduct, and The evident is either a sufficiently remote, or B has been interrupted by some intervening circumstance, then Sorry.

0:19:31 Thomas: Yeah.

0:20:28 Andrew: Then that insulates that evidence from being excluded under the exclusionary rule. And so it's another way of introducing the evidence, even where there has been, even where it is, you know, the result of tainted police conduct. You one way is to say, look, we would have found this anyway. And another way is to say, look, this is not the evidence that they were trying to get at. And so therefore, there's no illegal police conduct to deter. And therefore, you should allow us to introduce this piece of evidence. In my view, again, I'm not a criminal lawyer, but in my review of cases, it seems to be a much narrower and frequently invoked doctrine. And Utah v.

0:21:13 Andrew: Streif basically expanded that out to the facts of those cases and said, yes, we're going to apply attenuation here. And it certainly seems like, you know, if I were a prosecutor, I would be citing this case quite a bit in terms of introducing evidence. So don't blame Dan Dan for his reading on it. I do think It's important to sort of clarify, you know, what those illegal searches and seizures, what the remedy is.

0:21:27 Thomas: Okay.

0:21:38 Thomas: So, Yeah. So, As far as the immigration part of his question goes, You're saying that that has more to do, I wit the segment from OAA 52, which talks about whether or not someone is actually like deportable, which is not the same necessarily as you know being here. Because, go back and listen, there's more clarification on, there are different terms. So, you're saying that answers that question more than this Utah versus Streef does?

0:21:39 Andrew: Yeah. Right. Yeah. Right, right, right. Right? Right. Yeah. And the first predicate to the to the first part of the question was, well, if we find evidence of, you you know, uh, illegality, that's going to be admissible, whether the stop, you know whether the stop or the search was legal in the first place. And I wanted to clarify that's not necessarily the case. Yes. Uh, in a lot of these cases, if

0:22:24 Thomas: If it falls under one of these exceptions you've highlighted.

0:22:26 Andrew: It falls under one of the exceptions, it is. Uh. But the general principle of the exclusionary rule, we still had, we still do have a fourth amendment in this country. Uh it has been, it has has been eroded away. And again, it never fails to amuse me that the people on Twitter most likely to have strong defender of the Constitution in their profile are the people who want to read the Fourth Amendment into nonexistence.

0:22:49 Thomas: Yeah.

0:22:50 Andrew: But, you know, because it is people on your side, Dan, Dan, sorry, I have to call you out on this, who want zu read the Fourth amendment into meaninglessness, who have taken us, you kno, nine tenths of the way there. But they haven't yet, they have not yet succeeded in, in making it completely irrelevant. Uh, it does still matter and all evidence of quote illegal status is not the same. So that's how those two answers tie together. I thought this was a fun question and, uh, and please keep, uh. Keep, keep them coming.

0:23:20 Thomas: Yeah. Yeah. All right. Well, there is a lot more you could talk about there, I know, but that was a long answer to one short, what should be a short listener question, so we'll have to plow ahead. Thanks, Andrew. Thanks, Dan Dan. Good job. Good job, Dan. All right, Andrews. On to our main segment of the day and All right, Andrew, this is a, this is one I really, this was, you know, I have a little bit of pull around here around this podcast. And I said, I really want to know about this religious liberty executive order because it sounds really stupid, but I don't know. I haven't had time to really analyze it. Like in an Andrew way, I haven't yet had time to get a legal degree and then analyze it. So Andrew, what's going on with Trump's executive order on religious freedom?

0:24:05 Andrew: So this executive order is five parts bully pulpit. Right. Right. We in in OA 66, we talked about how the administrations.

0:24:13 Thomas: Yeah. Yeah. That's A good, should this be a memo? That would be my first question.

0:24:19 Andrew: Yeah, five parts of it should be a memo and they should be an angrifying memo. But it is pretty clear that those parts do nothing other than emphasize that we have a president whose view of the First Amendment is at odds with history, with many religious groups, and not just liberal religious groups. And obviously, with, you know, sort of the overwhelming weight of the legal evidence, and that is to say, they have an accommodationist view that says notwithstanding the First Amendment's prohibition on establishment of religion, that that should not be interpreted as creating a wall of separation between church. It instead should provide for the, quote, accommodation of religious and public life.

0:25:09 Andrew: So there's no problem with all sorts of things from, you know, from kind of the de minimis. You know, there's a battle going back and forth over the National Day of Prayer and National Prayer Breakfast and stuff like that. And, you know, and typically the way in which administrations have defended that in the past is to say, well, you Know, that's, it's not a lot of religious stuff. And, and courts and courts buy that argument, right? We get into that on another episode.

0:25:36 Andrew: But, but they do buy that argument, they buy the argument that under God in the Pledge of Allegiance is a kind of a de minimis ceremonial, like, you don't call that in God, we trust on the money is just, you You know, come on, you're not handing out a Chick tract or whatever,

0:25:35 Thomas: Yeah. I Don't Really see, yeah, we gotta talk about this another time, but especially with the, like, the pledge and all that, like, come on, kids are saying this crap every day and they're like, that's not de minimis, but anyway, all right.

0:26:01 Andrew: So let me kind of go briefly through that. So Section 1, obviously, we'll we'll link the EO in the show notes. Section 1 says it shall be the policy of the executive branch to vigorously enforce federal laws, robust protections for religious freedom. Right. So they're saying that the law has robust protections for religious free to minute. The founders envisioned a nation in which religious voices and views were integral to a vibrant public square.

0:26:23 Thomas: Hold On Right away, that's Already Feeling A little stupid, like, okay. It should be our policy that if there's a law we're gonna get, we're going to enforce that law, it's Like did this Is a, we needed an executive order for this, surely? There's A different Better way, okay.

0:26:27 Andrew: Yeah. Yeah, yeah. Well, like I said, This is definitely the memo portion. The founders envision a nation in which religious voices and views were integral to a vibrant public square and in which religion, religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the federal government. That is a spin and a gloss I wouldn't necessarily put on it, but I would point out strict separationists, right? And I would define strict separationist as John F. Kennedy's 1960 campaign speech, right, I envision an America in which the separation of church and state is absolute and no pope in Rome can Tell a President What to Do.

0:27:11 Thomas: Yeah, people were worried about him being

0:27:13 Andrew: Right, yeah, that is, In my view, that is strict separationism. And even on that view, there is no advocate of separation of church and state that is a public voice who thinks that you shouldn't be able to speak your mind for religious reasons.

0:27:13 Thomas: Catholic, right? So he had to go hard on that .

0:27:30 Thomas: . ."

0:27:31 Andrew: Right. Right. Like and it's just that level of straw mannery is just is infuriating to me. Like I get I get this all the time of the, you know.

0:27:36 Thomas: Yeah, yeah, the idea that this executive order is finally going to be the thing that allows that . ,"

0:27:42 Andrew: Right. Like liberals love Martin Luther King's letter from a Birmingham jail, right? Like, and that is suffused with religious ideology. And look, like that was an important element of his character and his reasons for fighting for civil rights, right. Nobody thinks you can't make religious arguments in favor of legislation where you can't speak out in the public square just because you are religious. That is an idiotic interpretation.

You know, you want to tweet at us and find a couple of like nutball atheists who don't understand the law, like, I'm sure you can find somebody. But there is no organized activity on the strict separationist side that thinks that, you know, you shouldn't be able to speak out in public if you are religious. This is just a persecution fantasy of the Christian right, right. Then we get to, for that reason, the United States Constitution, yeah, enshrines and protects the fundamental right to religious liberty as Americans first freedom. That's that's just dumb. That was absolutely not reason for its inclusion in the First Amendment.

Federal law protects the freedom of Americans and their organizations and their organization's. Organizations. That's not a historical view, by the way, to exercise religion and participate fully in civic life without undue interference by the federal government. The executive branch will honor and enforce those protections. So that is a, you know, a rewrite of history, a bully pulpit. It's annoying and infuriating, but it has no effect. We're going to skip section two for a minute. Section three, conscience protections with respect to the preventative care mandate. The Secretary of Treasury, Labor, and Health and Human Services shall consider issuing

0:28:32 Thomas: Yeah, I was going to say, is Section 2 going to restore Christmas to the nation? Good.

0:29:24 Thomas: Yeah.

0:29:24 Andrew: Amended regulations consistent with applicable law to address conscience-based objections to the preventative care mandate promulgated under Section 300GG-13A4 of Title 42 of the U.S. Code. Those are the exceptions to Obamacare. Since, as we speak, the bill to repeal all of Obamaca is pending. That's where I'd like to devote our energy. So this this provision may become moot. And it is a I would like these people to consider making objection, you know, consider making.

0:29:54 Thomas: Yeah, yeah. I declare that these people should think about this a little. Weird.

0:29:56 Andrew: Right. Right, That does nothing. Thing section for religious liberty guidance in order to guide all agencies in complying with relevant federal law, the attorney general, and again, remember that is Jeff Sessions, one of the dumbest human beings on the planet and also a flaming racist, uh, shall issue as appropriate guidance interpreting religious liberty protections in federal law. That's horrible and awful, but that was going to happen, right?

0:30:00 Thomas: Mm-hmm.

0:30:21 Thomas: Mm-mm.

0:30:21 Andrew: Like we highlighted, uh, you know, Obama's Department of Justice issued memos directing various organizations and directing, uh, the DOJ in prosecutions, like how to interpret, uh, when, you know, Title Seven cases came up in cases of gender equality, uh, and, and you know, transgender issues and interpreting, uh, the provisions of, uh, the Title Seven of the Civil Rights Act of 1964, like, you know, you, you made fun of me on Twitter, like I have said it before, I will say it again, elections have consequences and uh, this was going to happen, it is a bad thing, but it is going to happened now

0:30:54 Thomas: No, I just made fun of you because, not you, I made, because it's a pretty infamous Obama Obama quote, and now you're, you're known as the guy who said, oh, okay, oh okay, so I just, I just wanted to start saying, yeah, and Andrew, it's, it'S, you know, itS not what your country can do for you, it's what you can do for your country, so, I'm the guy, who says that, so just, yeah yeah, we'll just be the guy ,who says that okay, I

0:31:00 Andrew: It's mine yeah it's it was mine, Obama stole it from me, so, uh, that's that's how it happened so all right yeah we, we can each be the guy who says different things, so yeah uh Section five is a severability provision, and this, I am telling you right now why this provision is in here. Number one, because finally Donald Trump has actual lawyers looking stuff over. This is a standard form provision in contracts. It was in that contract I drafted for you, right? It says, if any provision of this order or the application of any provision to any individual circumstance is held to be invalid, the remainder of this order and the application to its other provisions or to other individuals or circumstances shall shall not be affected thereby.

0:31:41 Thomas: See, oh

0:31:59 Andrew: That is good practice.

0:31:58 Thomas: My gosh, is this the first time you've seen him do this, yeah,

0:32:01 Andrew: Yeah, it is the first time I have seen this in an executive order. And again, that is that says that he is listening to at least somebody who knows how to practice law somewhere near the White House.

0:32:09 Thomas: Well, it's by now, finally, it's not their first rodeo with getting their executive, their pathetic executive orders overturned time and time again, so yeah, I guess they will have to develop a real know-how for how to get some of this stuff through.

0:32:17 Andrew: Yeah, right, right. Right. And you notice we've skipped over Section Two. That is the provision that is likely to be held unconstitutional, which we'll get there. Uh, and then Section Six, general provisions, nothing in this order shall be construed to impair or otherwise affect the authority granted by law to an executive department or agency or the head thereof, or to the functions of the director of Office Management and Budget relating to budgetary, administrative, or legislative proposals shall be, this order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Um, and there's another provision at the end that, that not worth reading. This is in direct result and response to the order of the on sanctuary cities that we talked about in 0866. Right. And so, again, there's some evolution at the White House because they, they are seeing these orders go down in flames in court for perfectly understandable and legal reasons that have nothing to do with the political implementation. And again, if you did your homework and played along with us in 0866, you will see, you know, Trump's White House did not attempt to defend the substance of the sanctuary cities

0:33:02 Thomas: Sanctuary city yeah yeah I

0:33:31 Andrew: Order, did not attempting to defend.

0:33:30 Thomas: Wonder if they'll try that one again, maybe

0:33:33 Andrew: Yeah. Who knows?

0:33:33 Thomas: They'll get to the point, we're like, hey, let's try, uh, you know, an actual defense of our order this time, okay, we guys, we try, we last tried the whole, this order does not, think of its fake defense, didn't go over well, let's uh, maybe, maybe try a different tactic this time.

0:33:37 Andrew: Yeah. Right. Right. So what's the unconstitutional part of this order? That is section two, respecting religious and political speech. And here's what it says. All executive departments and agencies, parenthesis, agencies. I have no idea what that's supposed to mean.

0:34:00 Thomas: What huh yeah, I just noticed that too, weird, wow.

0:34:04 Andrew: Shall to the greatest extent practicable and to the extent permitted by law respect and protect the freedom of persons and organizations to engage in religious and political speech. Again, I want to parenthetically point out organizations did not have religious free speech until 2014. The idea that our founding fathers thought that a corporation would have a religious belief is, yeah, Neil

0:34:20 Thomas: Well, some of our founding fathers were alive in 2014, right, some some of them surely had

0:34:29 Andrew: Gorsuch channeling the long dead spirits through seance of Alexander Hamilton. But no, like that is a preposterous right wing expansion via the judiciary. The notion that a corporation has a religious belief has no basis in law, has no thesis in philosophy, is just unbelievable. Anyway, in particular, the Secretary of the Treasury shall ensure to the extent permitted by law that the Department of the Treasury does not take any adverse action against any individual house of worship or other religious organization on the basis that such individual organization speaks or has spoken about moral or political issues from a religious perspective, where such speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of or in opposition to a candidate for public office by the Department of the Treasury. We talked about this, is saying we are attempting to take the lax enforcement of the Johnson Amendment, which we talked about in a previous episode of Opening Arguments, which is in Section 501C3 of the IRS code.

0:34:33 Thomas: Yeah, yeah, yeah, are they trying to make it even laxer, doesn't

0:35:45 Andrew: They are saying we now construe the fact that the IRS has not typically prosecuted churches under the Johnson Amendment now as it will be the directive that the secretary of the Treasury shall ensure that the Department of the Treasury does not take any future action. In other words, we have taken prosecutorial discretion, right, which admittedly has been very, very lax. We've talked about how it typically hasn't been enforced and now said we will make this a directive to essentially render the Johnson Amendment a nullity. Uh, and then it says, as, as used in this section

0:36:21 Thomas: Seem like something that the president could do. But I guess we'll see, yeah. Just

0:36:23 Andrew: Yeah no the president cannot effectively say, uh, because think about the implication of this, right, if this executive order is allowed to stand, it will not, my prediction is this Section two will be enjoined by a court, probably in the Ninth Circuit, you know, to that, that uh, a U.S. district judge that reports to the ninth Ninth Circuit.

0:36:43 Thomas: To rub it in the other circuits will be like, hey, who wants to do this, who's got a knife, oh yeah, yeah, Ninth, do it again, that'll be funny.

0:36:48 Andrew: If I am the ACLU, I am filing right now in the Northern District of California and in Hawaii and probably in Washington and Oregon lawsuits seeking declaratory relief, declaring that this section is unconstitutional. I'm deliberately doing it in a court where the appeals goes to the Ninth circuit, A, for strategic reasons. And look, we talked about this. It is not not for the for the right to pretend that they didn't do this for the eight years during the Obama administration. Right. We talked about all of the courts out of the Western District of Texas that, you know, for which the appeals goes to the Fifth Circuit where they cherry picked and got relief. Like, you Know, this is this is something that both sides do equally. But but but to rub it in, I would definitely because I think Trump has a little mini aneurysm every time something comes up from the West Coast and it's going to the Ninth Circuit.

0:37:33 Thomas: Yeah, yeah, I got a call coming in from Hawaii. I wonder what it's about, yeah.

0:37:42 Andrew: Yeah. Yeah. So this this provision will be struck down if it were not. Right. The next step in an executive order is I issue my Department of Justice to say don't enforce the Civil Rights Act of 1964. Right? Like you can seriously like you cannot issue an executive order that says we're not going to enforce this law. Right. We are essentially going to read this law off the books.

0:38:10 Thomas: Of course you can't, I mean, god, yeah.

0:38:13 Andrew: Right for the next for the next four years. And again, I would love for, you know, the those folks who have, you know, Trump loving constitutionalist in their social media feeds to tell us why, you know, you love separation of powers so much. You know, one of the bedrock principles of of our Constitution, why it should be possible for a president to effectively overturn a law without going to Congress, right? Like, you've got both houses of Congress and a Republican president. You know, if you can't get this overturned through the proper channels, you know, that's pretty much on you. Like, sorry about that, but do not use an executive order to read a provision out of the United States tax code.

0:38:58 Andrew: Now, again, on a practical basis, the IRS isn't enforcing these things. We've talked about that. It is important to not have executive order on top of it that directs the Department of the Treasury to behave in an unconstitutional matter.

0:39:12 Thomas: Well, because of the principle of it, as you've said, I mean, you can't just decide, I'm going to issue an order for you to just ignore this law, of course, like it doesn't matter, the fact that, you know, it hasn't been enforced too much in the past and

0:39:12 Andrew: Right. Yeah. Right.

0:39:24 Andrew: From a practical perspective, we will see in 2018, you will see megachurches hold Pulpit Freedom Sunday and record themselves giving speeches that endorse various Senate and House candidates.

0:39:41 Thomas: Just as a reminder, it's the most pathetic thing in the world, because it's all, it has to do is whether like how much of their, what is it, their donations or like tax write-offs. It's not even, it's not even as though the rule stopping them from doing this that nobody's enforcing. It's not even as though it's, it's all that bad of a rule. It's just like, you can't, what is it, you can't get tax-free donations. If you do it both

0:39:42 Andrew: Yep. Yep.

0:40:05 Andrew: It is. Yeah. Churches and other 501c3 organizations get preferential treatment both ways. Right. Their income is tax exempt and donations to that organization are tax deductible.

0:40:13 Thomas: Ways. Yeah, our write-off for for the people. Yeah for who do who for the don't donors.

0:40:21 Andrew: Right? Right. And the only restriction is 501c3s cannot engage in, participate or intervene in a political campaign on behalf of or in opposition to a candidate for public office. Those are the rules you have to play by to get doubly preferential treatment. If you only want singly preferencial treatment, you may register, we talked about this in our previous episode, as a 501C4. Or be a tax-exempt organization. This is what Planned Parenthood action does, right? This is why there's a difference between Planned Parenthood and Planned Parenthood Action.

0:40:41 Thomas: Yeah. Yeah Yeah. Yep. So it's, it's already a pathetic complaint anyway. Like it's the most pathetic complaint. And then this is, this is absurd. I don't even know. Yeah. I'm really glad this is this will be struck down immediately.

0:40:57 Andrew: Yeah. Yep. Yep. Yep. Yep. So there we go. I will tell you, and I'm going to link in the show notes, many, many people on the right are angry About this religious executive order as not going far enough. Right. And and this is the sort of push and pull. So there's a lovely National Review, stages the of which current Supreme Court Justice Neil Gorsuch wrote his lovely, snotty little liberals in lawsuits editorial right wing rag has a huge article on, you know, how this just is a breach of the promise from. Donald Trump to millions of decent religious Americans. And, you know, if you're on some sort of purgatory diet and need to bring up your lunch, I will link it in the show notes.

This is from David French, the guy whom Bill Kristol, who literally is right about nothing, wanted to run for president. And this is the amazing wisdom of David French. So the right is really angry that that this order doesn't go far enough. We broke it down. Most of it does not go far enough. But the central provision that attempts to do something is, in my view, blatantly unconstitutional, will be enjoined, preferably by a court on the West Coast of the United States of America. So we'll revisit this in two weeks when the court issues, well, probably take a month, but when the Court issues such an order. And if I'm wrong, God God help us all, because that's what

0:41:20 Thomas: Yeah, of course. Yeah yeah.

0:42:36 Andrew: Will be next, right? If they sneak this provision through, it says we can direct various agencies in charge with enforcing the law not to enforce the law on a blanket level, and that is truly terrifying in my view.

0:42:52 Thomas: It absolutely is. All right. Thanks for covering that. I was very curious. I know a lot of our listeners, I'm sure we're very curious about that one. So great stuff as always, Andrew. Thanks. All right. Andrew, another question, Shane Argo. This is something I have totally thought before, and I guess I haven't asked you before, but I've... but I said the same thing. Is there a reason, legally or philosophically, to have lesser, lesser punishments for attempted crimes compared to the crime itself? Example, attempted murder versus murder. The way I see it, if your intention is to kill someone, it shouldn't matter if you successfully do so. I totally agree.

I mean, maybe you'll explain some reason for this, but there are those scenarios where, or at least there are in movies, now I can't remember if I'm blending movies with reality, but where it's like, it matters whether or not the person is in a coma in the hospital that was your intended victim. And somehow what happens to you is going to be determined by whether if miraculously a doctor can save their lives or not. It seems to be very arbitrary to me. Overview of that. What's going on there?

0:43:03 Clip: The law breaking down

0:43:09 Andrew: Yeah. Um, I, I, I love the question, uh, and let me give you a practical answer to start with, right, which is to say, uh, attempted first or second degree murder still carries with it a very, very hefty prison term, right? Like, it's not, you know, it's the case of like, "oh, you know, phew, the guy is just in a coma, therefore I'm going to spend six months at a minimum security rehab," you know, like, they still carry, you know, significant prison sentences. So, you know, if you are concerned that people, that murderers are getting off scot-free, that's... that's not really the case. The reason for having the distinction between the two crimes, as far as I can tell, and again, this distinction goes back centuries, right? It goes back beyond, you know, British common law to, again, to our proverbial, like, like, 13th century Anglo-Saxon countryside that we have talked about.

0:44:59 Andrew: And it has to do with the criminal requirement of mens rea, right? Having a criminal intent, right. So the question even even has that that predicate in it, right, Shane says, the way I see it, if your intention is to kill someone, right. So now I want you to think about you're a prosecutor, right.? Put yourself in those shoes. How do you prove that somebody that a defendant had the criminal intent to kill someone? Right. And the answer is, right. Yeah. You know, can't get inside their head.

0:45:14 Thomas: Sometimes You Probably can, but sometimes it's Got to Be kind Of

0:45:31 Andrew: Yeah, well, but it's really, really hard. I mean, particularly, you know, if we're not dealing with the.

0:45:32 Thomas: Yeah. Well, The They write in their diary that Day, uh, Tuesday May

0:45:37 Andrew: Yep. Yeah. Yeah, the right- Well, Columbine Is a Great example, right? Yeah, if you keep a, if you keep a diary that says, "One day I'm going to go into into school and shoot all these people," right?

0:45:40 Thomas: Yeah. Yeah. You You Uncover Their Daily Planner It Says, like, you know, groceries, school, Uh, you know, murder, that

0:45:49 Andrew: Yeah. Yeah. Murder, death spree, exactly. Um, keep in mine, those obviously, uh, those cases are incredibly rare, so usually what, what you're doing is inferring intent from the physical evidence that's there, right? And again, that can be easier or harder, right? Like, if you've, you know, if you have the proverbial, like, lying in wait and killing someone, you know, you show, OK, here's where he went and bought camouflage, you know, uniform three days earlier, and here's where he specifically bought the firearm two days earlier, and, you You know, and so that shows that, know, that this person was lying in wait and and planning to murder somebody. But the way in which people get charged, and we've talked about this before, but, but look for it when you're reading criminal indictments, the internet, right? When you read a story about a particularly vicious crime, one of the pieces of advice we give on our civil cases, equally true on criminal cases.

0:45:52 Thomas: Yeah, sure. Yeah.

0:46:47 Andrew: Look for an article, the Chicago Tribune is usually really good about this, that hyperlinks to the actual, if it's a civil case, the actual complaint. If it'sa criminal case, they will hyperlink to theactual indictment itself. And read the original indictment. They're not hard to read. If you're an OA listener, you'll get through it. And you will see that when someone is charged with, you know, first or second degree murder, theywill be charged with what we have described previously as lesser included offenses, right?

0:47:15 Andrew: Right. So you charge them with first degree murder. You also charge them a second degree murder, you charge him with attempted murder.

0:47:15 Thomas: So, If You can't Quite Establish, establish the highest charge, there's still something left over.

0:47:21 Andrew: That is exactly right. And and and you don't know. It is sort of the equivalent of, you know, when you sue somebody, you Know, you sue them for everything you can think of and you sue everybody you can think of. And, you know, you figure out what's left standing at the end of discovery. When when you are indicting a criminal defendant, you want to include by and large, you you want to include the lesser included offenses because, you know, based on how the trial develops, you you don't want to be left there at the end of the day. And if you have, you know, a mens rea requirement for the top line offense and there is substantial doubt about whether the person ever really intended to kill the victim or not, you want to To be able to go back to the jury and say, OK, you know, and sometimes in cases, you know, they will drop, you know, prior to the

0:47:36 Thomas: But

0:48:16 Andrew: Jury verdict, you Know, a a top line.

0:48:17 Thomas: You're, you're talking about intent, like, as though that's going to be the difference between attempted and murder. Like, isn't the, those both require intent, don't they?

0:48:19 Andrew: Right. They they they both Require intent, But they may Require a different Threshold in terms of Intent to do what? Right. Like so.

0:48:33 Thomas: So you're so it's not just the difference between, you know, the doctor can't save this guy. He's dead. That's murder. Huh? Can you get it attempted murder when the guy dies, still, like, or you can't? Okay, so I see.

0:48:37 Andrew: Yeah. Yeah, right. Right. So, for example, if you show you can. Yeah, absolutely. You can. Right? So, yeah. Particularly if there are intervening circumstances. Right. So if there is a time period, this is another trope that comes up in cop shows, right? Like, but if there's a six month, there's a coma and there's six months and we're at trial and maybe he's going to die and the defense wants to introduce that, you know, there might have been medical incompetence or whatever. Now, again, again, criminal act was still set in motion, but it's, you know, it's sort of up to the jury to convict, right? And so, yeah.

0:48:49 Thomas: Okay. Okay. But Hold on, but that's a little different than I was thinking, uh, because I wanted to know, just to logically sort this through in my head, what the distinction was. You can't. Let's Say you, the the victim, let's say we established that the victim dies because of what, you know, the the defendant did, like there's no medical incompetence or any any other external factors, would then you're getting murder, right? Or is there still some logical set of circumstances where you, something's not quite there, so you get attempted murder or whatever, yeah, yeah,

0:49:25 Andrew: Right. So, right.

0:49:48 Andrew: Well, no, in that situation, you would probably get manslaughter as opposed to murder, right, if there was a problem with establishing the full level of mens rea to support intent to murder.

0:49:58 Thomas: See, that's what I thought. So, I guess I'm just struggling to understand why intent is mattering so much in attempted murder versus murder, sure.

0:50:00 Andrew: Yeah. Right. So in a practical sense, the reason stems with the historical difficulties on proving every element of the crime. So it was another way of having a catch all of that you couldn't necessarily prove from a philosophical sense. Right. Which is where I think this is kind of crossing over into you. You could certainly see, you know, a utilitarian based argument that says, you know, we are going to meet out. Right. Like the the premise of this question is, you know, kind of a Kantian retributivism. What we are judging is what's going on in your head. But but there may be good.

0:50:43 Thomas: Well, or it's or, or like, how much of a threat this person is to society. Like if they intended to kill somebody and they completely failed, but they still were like, I mean, they still could be a murderer. We're not the, you know, some, some part of their Rube Goldberg contraption that they intended, to use, you I know,

0:50:45 Andrew: Yeah. Is to society. Right, right, right. But from a from a strictly utilitarian or I shouldn't say from a strict utilitarian using some models of utilitarianism. Right? An incompetent would-be murderer is less of a threat to society than a competent murderer, right? So I could come up with, I could very easily come up with sort of Benthamite justifications that say, yeah, even if your intent is the same, your impact on society is different if you're really good at it, as opposed to if you'RE not good at IT. I think that we tend to have a view, particularly on on the most serious criminal offenses that is more retributivist than sort of strictly utilitarian. But we haven't always had that throughout history.

0:51:15 Thomas: Guess, I guess to, to, for my part, I don't, we can't, you know, Shane's not here to, to clarify what he wants to know, but I guess for my part, the thing I would be concerned about is maybe what you said in the beginning, which is, you you know, how serious are these sentences? Are people, because I would want it to be that for a crime where by some miracle of medical science, they saved the victim, I would want the punishment to still be virtually the same as if the victim would have died because, you know. It's totally contingent some, I don't know, medical breakthrough or how close they were to a hospital or, you know? A bunch of stuff that has nothing to do with the fact that the person just was a murderer.

0:52:23 Andrew: Well, so let me push back on that a little bit. Suppose you have a very, very angry person who has never used a firearm before. And it's me, right? And I'm really mad at you and I want to to kill you. Uh, and I point the gun at you and I pulled the trigger intending to shoot you through the heart. But, uh, because I've never used a gun before, like it kicks in my hand and it shoots, you know, five feet above your head, right? Like it, and then embeds in the wall behind you, right? So does no harm to anyone else. Uh. It scares you. My intent was to kill you, but like, there's not a scratch on you, right. Like it is, it, it doesn't remotely come come close.

0:53:01 Thomas: Right. So are you going to say that in that case, it's going to be difficult in trial to know like, well, were you trying to actually kill me or were you giving me a warning shot?

0:53:09 Andrew: That's exactly right.

0:53:10 Thomas: I get that.

0:53:11 Andrew: Like, you know, because of the state of the evidence, I'm going to go to trial and I'm gonna say, no, no. Look, I, my client that now I'm representing myself.

0:53:16 Thomas: No, I getthat. Now, I would say, now let's say we have some truth machine where we knew you actually, just type for the philosophy side of it. We knew you fully were trying to shoot me in the head. You were willing to commit this murder. I've done so poorly on the bar questions. You're just like, I need a new co-host. In that case, if we somehow knew that, like I would want the punishment to be virtually the same. I mean, you could go a little bit less for, as you said, incompetence. But I mean that's not a great reason to get less of a sentence just because you messed something up.

0:53:18 Andrew: Yeah. Yep.

0:53:47 Andrew: Well, and, and there the counter argument would be, uh, you still have from a prosecutorial perspective, right? And this is why the penalties are set where they are, that you are dealing with a diverse jury pool in this case. And if you set the, the punishment punishment equal, uh, you know, or, or nearly equal you.

0:54:00 Thomas: Well, let me, hold on. Let me clarify so we don't go down on a, is there the flexibility in these sentences to sometimes have the punishment be virtually the same as murder versus, because I know know, I know these sentences aren't like, there's no standard one thing. So like, if we, if we paint the scenario back more my direction, which was the exact same crime only in one instance, they were right next to a hospital. So somehow the person was saved. In the other instance, there were five miles away and just that tiny amount was enough to, to be the difference. Like, is there the flexibility for the sentence to be, you know, virtually close to they're going away for a long, long time is what I would want to know.

0:54:06 Andrew: Sure, sure, sure. Yeah. Yeah. Yeah, yeah. Yes and no. Um, uh we could do and should do an entire episode on, uh state versus federal sentencing. Um the the the multi-part answer to that is you have more discretion at the state level than you do at the federal level, but sentencing phase comes after the guilt or or innocence phase. And so I am still going to argue as the defense attorney, hey, look, this crime carries with it the death penalty. Are you willing to give the death penalty to somebody who did not come close to killing somebody and for whom, you know, even with your truth machine, right? Yes, he may have intended, no murder was committed here. Do you really want to extract a life for a life when no life was taken? And that that second part. Right. Again, we also don't have the truth telling

0:54:48 Thomas: Hmm. Right. Mm-hmm. Right. Well,

0:55:29 Andrew: Machine.

0:55:29 Thomas: Yeah, we went back to your scenario. I was talking about my scenario, but yeah.

0:55:30 Andrew: Right? But even in even in your scenario with the truth, telling machine, I could see juries.

0:55:36 Thomas: No, my scenario was that we're right next to a hospital, so the guy survives miraculously, even though he's been mangled.

0:55:39 Andrew: Right, right. Yes, and and so right. So the answer is the intent crimes have to cover all of those circumstances, right? Right. Like they have to cover the guy next to the hospital, you know, who happens to be next to the best hospital with the best, you Know, heart surgeon in the country who miraculously saves him or whatever. Yeah, I agree. In that case, it probably wouldn't be hard to get a conviction. That's obviously not the majority of intent based cases. So you have to, you have come up with the Best rule you can that covers as many circumstances as you can.

And The ultimate reason there is on on both sides, like you don't want as the prosecution to have to go in front of a jury and have the mandatory punishment be equal or nearly equal to if the murder, you know, if the victim had actually died and have have the jury say, well, if it's a bind, if it's an up or down, we don't think that, not we're not ready to convict because we don't want this guy to get the same punishment for murder as if the victim had died.

And that certainly is, you know, the other the kind of perverse incentive that's that's built in, right? The prosecution would rather take a lesser verdict or would rather take a lesser sentence in that situation than risk risk uh having the jury this is this is a a light form of jury nullification right that we talked

0:55:58 Thomas: Right. Yeah. Right. Yeah.

0:57:03 Andrew: About a couple episodes ago then have the jury say you on balance we're going to find uh you know a not guilty verdict here because one of the things we're taking into consideration is you know there is the death penalty or life imprisonment without parole at stake here.

0:57:18 Thomas: All Right. Well, we Uh, we're running out of time. I think there's a lot more again that you could talk about There, but thanks for that answer, that's good stuff, and thanks as always for the questions, Shane Argo, and now it's one of our co-favorite times of the week, and that that is New Patron Tuesday. All. So let's start. Raul Francisco. Thank you, Larry. Zach Aletheia. A different Zach.

0:57:19 Andrew: So. Yep. Absolutely.

0:57:43 Thomas: Jesse Kent. Nick Cuskey. Brandon Ballard. Daragh. Oh, man, so hard. Thomas's Missing Feet. Okay. All right! Okay. Thank you. You, Zach Stillwell, Mark Holmquist, and Sabrina Jacks, thank you guys so much,

0:58:01 Andrew: Yeah. And thank you to Dale Bryant, Shane Phillips, Dinosaur Repair Man, Jack Coffison, David Agland, Art H4. No idea what that is, but thank you, Art. It, uh, Neil at www.campquest.org, uh, again, we uh always free to use your pledge as an advertising line, and uh, and both Thomas and I are familiar with camp quest, a good Organization, uh, Chapin Bryce, Bill Runzer, Danie, and sorry, and johangrus, uh, thank. Thank you. Thank you very much for your patronage.

0:58:23 Thomas: Excellent, yeah, Dinosaur Repair Man really cornered the market on that one, I think, so, excellent, yes, thank You guys so Much, co-favorite time, and now it's time for my co-unfavorITE time, I'm worried about this one, and I think the answer might be C, I guest be? Let's find out. Time for the answer to last week's bar question. Here we go. Lay it on me.

0:58:41 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:00 Andrew: And this question, If you recall, was a yard sale seller finds an old etching in his basement, labels it with a price tag of ten dollars. Buyer comes by, knows that it is a world famous Kandinsky etching worth at least a hundred thousand dollars.

0:59:19 Thomas: Wait, are you sure it's not from Blue Period?

0:59:21 Andrew: Could be Picasso. From the Blue Period. Uh, and uh, when the seller finds out that he made the awful mistake and the buyer knew, he sues to get the ten thousand dollars back. And uh, the question says, under the Restatement of Contracts and the majority rule in case law, will the court grant the buyer's motion to dismiss? Uh, and our answers were, A, yes, the seller should have had the items appraised before selling them. The seller always must know the value of being what's offered for sale. That's- I don't think anyone guessed that. If you did, you should feel bad, but you should keep listening to the show so you don't make those mistakes.

0:59:23 Thomas: Yeah. Yeah, you really need

0:59:54 Andrew: Not A. B. Yes, the seller cannot rescind a contract because he later regrets it. Either party may end up with a superior deal depending on luck, knowledge, and a variety of factors. That's the answer Thomas chose and is a reasonable choice. C. No, because in some unilateral mistakes, rescission is allowed if there has been an unconscionably unequal exchange of values and there is no substantial hardship to The other party. That's answer C. That was Thomas's second choice and also a very reasonable answer. And D, no, because a party always has a right to rescind a contract where the value of the product or services does not live up to his reasonable expectation. Come on, you got to know that's not the right answer. The giveaways there are the "it" word, "always." And just think about that, what that would do to contract law, right? The whole idea in contract law is to put the party's expectations into practice and to say, I could, you know, sort of reasonably be unhappy with something that I knew I was getting into.

0:59:54 Thomas: To listen.

1:00:18 Thomas: Yeah. Yeah,

1:00:54 Andrew: You can write a satisfaction clause into your contracts, but it's not going to be written in for you by law. So the question is, is it B or is it C? And the answer, as Thomas sadly suspects, is, it is C. And this is, yeah.

1:00:55 Thomas: Yeah. Yeah, I every time it sucks because I don't, I have to do these on the spot and then every time I'm editing and I hear the question again, I pretty much always know. It's like, oh crap, it was- I guess the wrong thing, yeah. It just sounded so reasonable. On editing I was like, oh yeah, that makes more sense, yeah.

1:01:19 Andrew: And yeah, the Provision is Restatement of Contracts, Section 153A, in a unilateral mistake, right? Unilateral, one party makes a mistake. If enforcing the contract is, one, grossly unfair, oppressive, or at least would result in an unconscionably unequal exchange of values, and two, there is no substantial hardship to the other party, there may be a rescission. That is, the contract is undone.

1:01:24 Thomas: Yeah.

1:01:50 Thomas: And that was what- I- what occurred to me when we were, when- I went through it again was like, okay, maybe in trial or something, or or in discovery, you would make your case for why it's, you know, it's a hardship or whatever, but get- That rule made sense for like why you wouldn't just dismiss this case outright, right, to- me. So yeah.

1:01:50 Andrew: Yep. Yeah. Yeah. That- That, that's- you've, you've got the analysis correct, so it is, uh- I, I- think we're gonna see it, we're going to see an upswing and- you're gonna put those principles in place.

1:02:11 Thomas: All right. Next time. But if anyone like, is there, do you think there's room in the market for a law practice where I get the question, like if someone comes at me with a legal problem, I'm like, well, my first or second guess will probably be right. I don't know how much, how much can I bill per hour for that? Like, okay, I'll tell you, I want to give you two guesses. One of them's right. And I don'T know if it's the one I think or not, but, but, one of them is right, like I'm not, I'm not gonna give you a but, like, four guesses, you know, I can narrow it to two. That's, there's some legal value there. Come on. Mm-hmm.

1:02:28 Andrew: I like the idea. I, I, well, and I, and I think given, I like the idea, I want to, when we get off, we're going to copyright this before this airs of Thomas's second chance law firm, right? Like literally ask him twice and do the second second thing. Um, and, uh, and you would be, you would be at 90%.

1:02:52 Thomas: Yeah man that's what I'm headed for All right, so what am I, gosh, a let, or am I 50% now. Oh, shit.

1:03:05 Andrew: You are 11 for 22. You are at 50%, but you know, we're not going to fall below. I, I feel really, uh, I felt really good about that. Uh, and let's, uh let's kick it over to, to future me for, uh the week's winner.

1:03:08 Thomas: No, okay. Okay. Absolutely. I love future Andrew.

1:03:19 Andrew: Me too. He's, he's He's my he's my favorite, Andrew.

1:03:20 Thomas: Andrew is, yeah, taller, better, better looking. Sorry, Andrew. Between current Andrew and future Andrew, I'm always going to choose future Andrew. He's the one for me. I'm sorry.

1:03:30 Andrew: Yeah. Yeah, I get that a lot. So, yeah. Yeah, Thomas, this week, we are going to go with one of these incorrect but hilarious answers. This comes from our pal Bad Ombre Kyle, which is at Kyle Heil on Twitter, K-Y-L-E, H-YLE, not Heil as in Hitler. We would not give him a shout out. Kyle Heil writes, definitely answer B, which is wrong. It's the no backseas clause of the Constitution, which is wrong, ironically written on the back of the document, which is also wrong. And then he says, prove me wrong, which I think we also did wrong because I'm going to make him the winner. But no, I laughed. It was good. We haven't picked a wrong answer in a while. And out of solidarity with you, who also picked B, we're We're going to pass on the probably 60-40, 75, somewhere between 60- 40 and 75-25 in favor of C on the list.

1:03:36 Thomas: All

1:04:29 Andrew: But we got some other answers. We got A from a couple of folks. I don't know if anybody gave us a D. This was kind of all over the map. Kind of a tough question. Interesting when the law gives us what seems like the equitable outcome and not just the technical So thanks to Kyle Heil, bad hombre Kyle, and keep playing.

1:04:49 Thomas: And that's it for today's show. Thanks so much for listening. Thanks so mucho for patronizing us. And thanks so much, Andrew, for androizing us with knowledge. And we will see you on Friday for another rousing episode of of opening arguments.

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