OA69: The Tuesday Massacre - Trump Sacks FBI Director James Comey

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 69. No jokes, no jokes, no jokes.

0:01:25 Thomas: I'm Thomas. How's it going over there, Andrew?

0:01:27 Andrew: Am substantially better than I was 30 seconds ago. How are you?

0:01:33 Thomas: Great. I am excited to talk about Comey. Everybody is asking about Come. And they ask me and I'm like, what do I know? I'm not the lawyer. And so I have referred people to this episode. And hopefully you are hearing me now, people from the past. So we are going to talk all about it and some other stuff. Ooh, got a great question for the C segment as well. Excited to hear Andrew's answer to it. So with that said, let's it looks like we have a little, little, pre segment thing here to talk about.

0:02:03 Andrew: A bunch of folks have linked me over the past couple of days to the complaint filed in the United States District Court for the District of Arizona in the case of Dr. Andrew Snelling. That doctor is not in quotation marks, but I think it should be, who is a young earth creationist geologist in the employ of Ken Ham's Answers in Genesis against the United States Department of the Interior National Park Service for not allowing him to, I don't know, do something crazy at the Grand Canyon. Creationists have this weird belief that the Grand Canyon supports literal biblical flood geology, um, which is kind of amazing because you know it's right, like when you think about somebody did the calculations of like what it would take for flood rains to have, you know, carved the Grand Canyon over the course of, you know, six

0:02:18 Thomas: Hmm. 40 days.

0:03:00 Andrew: Months, or right, yeah however the however long it's supposed to be raining and, like, you know, essentially it requires like you know a moon laser aimed at the earth full of rain to do this. But nevertheless, you know, they think, I don't, I have to admit I am not sufficiently versed in crazy creationist land to know that. So creationists love going out to the Grand Canyon. Dr. Andrew Snelling was restricted in some way. And our favorite friends, the Alliance Defending Freedom, have, of course, filed on his behalf. He is the the plaintiff, he is suing the government. This is what ADF does, by the way, like when you want to talk about, you know, persecuted groups, they are the plaintiffs in 99.9%

0:03:01 Thomas: Oh yeah. Yeah. Well, you haven't studied. You're just not educated. Yeah. Oh yeah.

0:03:48 Andrew: Of their cases. So no one's out there suing people. So, you now, there's a fun between, they like to portray themselves as the victims, but, and look, like, as a lawyer, like go sue people if you have have reasonable courses you know reasonable causes of action, right? Like, I am in no way suggesting it's bad to be a plaintiff, uh, and I'm in no ways suggesting that because I'm primarily defense lawyer and people tend to call me when they get sued, uh, yeah, right.

0:04:04 Thomas: Yeah, yeah.

0:04:15 Thomas: I know, I know your game. I know your game, Andrew Torrez.

0:04:17 Andrew: Um. So we will cover the AIG Snelling lawsuit, uh, we're not going to do it, it, this week, for reasons that you will find out, uh, but, um, but we will cover the lawsuit.

0:04:28 Thomas: All right. And with that said, we've got to get to what's probably my favorite intro for a segment. And yeah, there's going to be, uh, there's, I sent some yodeling in your future, everybody.

0:04:34 Andrew: Mine too.

0:04:42 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or no on it? Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:05:00 Thomas: All Right. Was I right? I think I I was right. There was yodeling. Uh, Andrew, a billion people, including one Kevin Hicks to give him credit ask, did Trump commit felony witness intimidation with his tweets about Sally Yates before her congressional testimony? Hmm. Interesting. So just before and maybe some of his tweets might have been during her testimony, he tweeted, ask Sally Yates under oath if she knows how classified information got into the newspapers soon after she explained it to White House counsel. So that's his tip for any, what, senators listening? How to get her. But yeah, so is this kind of thing in general if you're the president, which, you know, it's funny to ask this in a hypothetical sense because we have one literal in all our history, one example of this. But if you're a president and you are issuing some sort of media of some kind, you're issuing some sort of proclamations of some type, and you're doing it in what could be perceived as an intimidating way toward somebody who's a witness currently, how does that work? Is that against the law?

0:05:20 Andrew: Yep. Uh, Yeah, so my yes is, I understand the question, not, not yes. It is, uh, what we turn to here is, uh, the relevant section of the United States Code, which is, uh, Title 18, which is Crimes and Criminal Procedure, procedure, Section 1512, which is obstruction of justice, tampering with a witness, victim, or an informant, right? So this is the relevant federal crime. And here's the law. Subsection A says, whoever kills or attempts to kill another person with intent to you know, testifies. Okay, so that probably doesn't apply, right? Subsection B, whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct towards another person with intent to, and then I'm going to talk about the subsections. This is the only section that could arguably apply to what Trump did, right?

0:06:45 Thomas: Not that. Yeah.

0:07:09 Thomas: Okay. Yeah, yeah.

0:07:11 Andrew: Engages in misleading conduct towards another person, or attempts to, and then the sub sections are, one, one, influence the testimony of any person in an official proceeding. Clearly doesn't apply. Number two, cause or induce any person to, A, withhold testimony or withhold a record, document, or other object from an official preceding.

B, alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding, C, evade legal process summoning that person to appear as a witness or to produce a record, document, or other object in an official proceeding, or D, be absent from an official proceeding to which that person has been summoned by legal process, or number three, hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information related to the commission or possible commission of a federal offense or violation of conditions of probation, supervised release, parole, or release pending judicial proceedings, shall be fined under this title or in prison, not more than 20 years, or both. OK, the so subsection B, I suppose you could make an argument about B to A, but but none of those were a clear fit. Subsection C is about destroying evidence, that doesn't apply.

And then subsection D, this is where I think the argument is coming from, uh, whoever intentionally harasses another person and thereby hinders, delays, prevents, or dissuades any person from one, attending or testifying in an official proceeding, two, reporting to a law enforcement officer regarding the commission of crime, three, arresting or seeking the arrest of another person in connection with a federal offense, or

0:08:49 Andrew: Four, causing a criminal prosecution, parole, or probation revocation proceeding to be sought or instituted, blah, blah, blah, um,

0:08:55 Thomas: So, from all this I'm hearing, doesn't sound like Like somehow miraculously and, and through probably through no fault of his own, like through no, through no legal acumen of hisown, somehow Trump just kind of tiptoed through that minefield. It seems like there's a lot of ways he could have been potentially, uh, breaking the law there, but it doesn't sound like what he tweeted did any of the things that you just said to me.

0:08:55 Andrew: Yeah. Yeah. Yeah. Yeah.

0:09:17 Andrew: You would have to prove intentional harassment of Sally Yates, OK, to thereby delay or dissuade her from one attending or testifying in the proceeding.

0:09:29 Thomas: Yeah. Cause it really, he's almost encouraging her to go test.

0:09:33 Andrew: Well, you know, to to to say, hey, you know, she's about to testify. And here's this embarrassing thing I want you to ask her about it.

0:09:33 Thomas: He's like, Hey, get on the stand. Go. Yeah, that's true. OK, OK.

0:09:44 Andrew: But but keep in mind, in order for that to be in order to make that allegation, you would have to contend that this would be dissuading to Sally Yates, right? Like you would be dissuaded to make that the allegation itself, right?

0:09:56 Thomas: Right. Yeah. Do you have to prove that she was dissuaded? I mean, if she how does that crime work in general? If she still testifies, would they still like I guess we'd have to pull some other hypothetical. But if someone tries to intimidate a witness, but they don't succeed, is there still room to prosecute the person who tried to intimidate them?

0:10:02 Andrew: So under this particular provision, unless it falls into the previous categories that I've described, no, right. So in other words, right, that subsection D, I looked at D1 cases. So 18 USC, 1512 D1 Cases. There are two components to this provision of the statute. So the first is you have to prove that the defendant intentionally harasses another person. And as we're going to talk about in this episode, as a callback to our Hillary Clinton emails episode, right, proving intent is a tough thing. Right. And so proving that Donald Trump intended to harass Sally Yates as opposed to intended to embarrass Sally Yate's intended to beat his chest on Twitter, intended to score political points.

Right. Like, I mean, it there's... there's a huge range of permissible First Amendment conduct that that cannot be criminalized. And for which, if I were Donald Trump's lawyers, I would say, yeah, no, like that, this, you want to, you need to prove that this tweet was made to intentionally harass Sally Yates. And, you know, and that's going to be, that's gonna be a tough, I mean, I'm not convinced that it was right. Right. Like think he wanted to embarrass her. I think you wanted to, you know, say something provocative and have the news switch to coverage of him because our president is a narcissist. I don't know if

0:10:28 Thomas: Okay. Hmm. Yeah. Yeah.

0:11:42 Andrew: If I were his lawyer, if he would allow me to make that argument. But but I would try and convince him to make the narcissist defense. So, yeah.

0:11:42 Thomas: And You know, I think you might have said it last week, you know, who doesn't need our protection from from this kind of thing, Sally Yates, because I didn't, I wasn't as familiar, but then after I saw some of the the her testimony in video, it's like, holy wow. Okay. I don't she's doing fine?

0:11:54 Andrew: Yeah, right. Yeah. Yeah she's good, isn't she? Yeah.

0:12:04 Thomas: Yeah, she's, she can hold her own, man. She mopped the floor with Ted Cruz. It was it was a delight, yeah.

0:12:07 Andrew: Right. Oh, it was glorious. And then, and then anyway that the second half of subsection D is, and thereby hinders delays prevents or dissuades. And so that means that it has to have some effect, right? An impotent threat does not fall under D1. Now, you know, again, if there's violence attached to it and you testify anyway, the sort of classic, I mean, you think about the statute is meant to apply to, you know, we have the mob informant who, you know, or the Futurama, like you you get get the cell phone call while you're on the stand that says, you know, if you testify, your organs will be pureed into a paste or whatever. Yeah. Like that falls under, you know, the the the other sections involving the threatened use of force.

0:12:47 Thomas: Right. Right, yeah.

0:12:59 Andrew: So. So, no. Right. There was a lot. And I read the question, A, because I think it's fun to sort of go through. And B, there were a fair number of the, you know, Occupy Democrats level sources, people tweeting out saying, you You know, Trump just intimidated a witness before. We're better than this, guys. Right. This is a running theme of the show. But you know, we're better Than this.

0:13:11 Thomas: Yeah.

0:13:21 Thomas: You know, we got a related question too. I just reminded me of it because of the Sally Yates, Ted Cruz thing. Someone asked, like, are are you embarrassed by the fact that you went to the same school as Ted Cruz, and like, are you, is he going to bring down the reputation of Harvard Law, can it recover. And and I didn't answer, but my answer would be, I think one Andrew Torrez is restoring simultaneously the reputation of Harvard Law every day here on Opening Arguments. What's your answer?

0:13:47 Andrew: I who who who would have thought that pontificating into a microphone and making inappropriate jokes is restoring the integrity of Harvard Law School. I think they're doing OK. But no, I mean, I want to jump in there like. But what made Sally Yates so effective in disemboweling Ted Cruz is when you reach that point where somebody who is very, very smart, and Ted Cruz isn't very smart. And the issue is he knows that in a hearing, he's got to say something that is politically correct. I'm not using that in the capital P, capital C.

0:14:24 Andrew: Right. Something that is right to his benefit politically, but wrong as a matter of law. And when you have somebody else who's opposite you, who's very smart, they can exploit that tension. Right.

0:14:23 Thomas: Yeah. Yeah. The kind of the opposite way. Yeah,

0:14:36 Andrew: Because you get to the point where you either have to say, well, you know what? And like that is kind of coming back in. Like, that's one of the fun parts about doing the show is, you misstated, you know, something I can come back and be like, yeah, right. It's a show. And, you know, we glossed over and we do this all the time. Like, I try very, very hard when I'm giving an oversimplification to say, hey, look, like, there are three other provisions of the statute here. This is an oversimplefication. If you disagree, you send us an email. It is a little harder to do that when you are the champion of the conservative generation or whatever Ted Cruz Cruz fancies that he is, but yeah, no, that, like, that, that was able to take place because he's a smart person, and that, you know, I, that's another one of these, we're better than this guys, right? Like, we, we do not have to, know, reduce to caricatures those with whom we disagree politically, and I think You, yeah.

0:14:36 Thomas: Yeah, yeah. Yeah Ted Cruz does it himself. He just, yeah well,

0:15:32 Andrew: Right. But You Underestimate, you know, Ted Cruz at your own peril and, like, Like, the last thing I would want to see is, you know, us, somebody on our side, you know, get painted into a corner because you've, you've failed to consider that. I mean, look, like, Ted Cruz is a smart guy.

0:15:51 Thomas: I look, he's not, yeah. Okay. He's not an idiot. I'll grant you that. But when he's cynically saying things that are inaccurate, it sure does make it look like his Harvard education was worthless, even though, you know, maybe you know that that's not what's happening. He's just lying. But, you know. We don't know that. Like, how do... So, I think...

0:16:10 Andrew: Yeah. Well, I keep it, look. Keep in mind, like his, when he next runs for president, right, his natural base are are going to be people for whom, uh, standing up and saying, Hey, I was on the law review and graduated with honors from Harvard law school is not a badge of honor. So

0:16:13 Thomas: Yeah. Oh, yeah. He needs to just say, ladies and gentlemen, I'm just a caveman. My favorite quote.

0:16:32 Andrew: Yeah, I was born in a cave in Canada and, uh. Yeah.

0:16:41 Thomas: All right, so yeah, interesting stuff. By the way, I don't know when he's next running for president, because we're going to take him out in 2018, everybody. But anyway, so

0:16:50 Andrew: That didn't, that didn't stop Rick Santorum from, from running.

0:16:51 Thomas: Yeah, That's a good point. So he'll But, but I mean, he's not running in 2020, so we have until, well, let's see, no, yeah, even if Trump gets impeached, I mean, it's, do you think Ted Cruz will run in 2020? I think we have, have until 2024 till we have to see his stupid face running for president again.

0:17:10 Andrew: So I like the idea that we are goingto take back that seat in 2018. So let's, Let's Stick With that. Well,

0:17:14 Thomas: Yeah, let's do it. All right. Well, so sorry, yodelers. Sorry, yodle fans. I know we've got a bunch of huge yodeling fans.

0:17:21 Andrew: We Don't We Don' T. We don''t Have to apologize To the yodel fan. We gave them What they wanted, Sadly.

0:17:25 Thomas: That's true. Well but the yodeler won't be yodling more. Like there's no, the yodelling ends here. He's not any further up the hill. So, yep, sounds like this didn't do it, but boy, do we have a lot of stuff to talk about in potential yodeling-worthy offenses. So we'll keep that in mind.

0:17:48 Thomas: Okay, Andrew, it is time to talk about the elephant that's not in the room. My new favorite, my new favorite way to introduce every Donald Trump topic, Trump's sacking of FBI director, James Comey. First off, I can answer this one because I think a lot of people even work in, maybe not anymore, but initially people were like, is that even legal? Yeah, it's legal. I mean, I mean, he can definitely fire the FBI director. It's within his power as president. So just to clear that up.

0:17:53 Andrew: Yes. Yes. It is within his power as president. It is within his to appoint a new FBI director that will be subject to the appointments clause, uh, and, uh, subject to approval by the Senate, due to a change in the rules that was promulgated during the Obama administration, uh, that only requires 51 votes to get a new, uh, FBI director. It's not Filibusterable.

0:18:39 Thomas: Well, let me think about this. Is there anything? There's no appointment that requires 60 votes anymore, right? That was the last. Wasn't the Supreme Court the last bastion of? Yeah, yeah.

0:18:41 Andrew: Correct. Correct. Correct. So Yeah.

0:18:51 Thomas: So any appointment. So It's interesting. And some facts I discovered, because, you know, for my show, I've done a little bit of research on this, too. And let me know if I have anything wrong here. But it's interesting looking at this, because the FBI director is not like a lot of these appointments we've talked about. It's not like all of these positions where it's like, well, sure, each new president kind of brings in their guy. The FBI director has a 10-year term, and I think the reasoning behind it is it's supposed to be kind of a nonpartisan thing. You would hope that the FBI Director would be a little more independent, might serve under multiple presidents of multiple different parties, you know, depending. So even though the president has the right legally to do this, it's only been done once, and it wasn't Nixon, which Is interesting, it was, it was Clinton, the Only Person To Fire

0:18:52 Andrew: Yeah.

0:19:32 Andrew: I'm Okay. I Think I'm Gonna get a T-shirt. I'm going to do a new, new Patreon goal, at an opening arguments t-shirt, Opening Arguments logo on the front, instead of, uh, "Don't take legal advice from a podcast" on the back, it will say, "It wasn't even Nixon," on the back.

0:19:37 Thomas: Yeah.

0:19:50 Thomas: It's only been down once. And I love this about Trump, and in, in a depressing way, in a sort of a dark humor way, everything we talk about with him, as well, not since Nixon, has, you know, like every single thing. Well, I guess you could do this, let's see, who's the last person? Oh, Nixon did this. Wow, what do you know? Or the other hand of it is, well, this is illegal because ever since Nixon, we made it law, that whatever. And it's interesting because I think a lot of people thought, well, Nixon must've been the last to do this, or this is so Nixonian, but it was actually Bill Clinton who fired another Sessions, not the Jeff Sessions, but because of severe ethics violations. Is so, it's only been done once. So that's to put it in perspective.

0:20:35 Thomas: It's not something that every president cleans house and fires the FBI director. So that's a little bit of background for you. What what do we want to look at specifically here, Andrew? What are people asking?

0:20:45 Andrew: Yeah. So what I want to look at is the, uh, memorandum that led to the firing of, of Jim Comey. I want to do this for a number of reasons, because it came out of Jeff Sessions' office. We have remarked less than favorably on Jeff Session's intelligence and devotion to the equality of the races, which I stand by, those slurs. He's not smart, and he appears to be a racist. The memo to Attorney General Jeff Sessions was written by Deputy Attorney General Rod Rosenstein, who I have to say is, I can't call him a friend because that overplays our relationship. He is certainly a colleague of mine.

0:21:32 Andrew: He is someone I know fairly well with whom I have served on various boards. We did a moot court. We were on the bench together as a mock. So yeah, at the University of Maryland Law School every year, they have a competition and then I volunteer to judge in the semifinals and finals. And so they do a mock oral argument and you get get together a three judge panel that is, you know, sort of pretending to be the Fourth Circuit, you know, sitting on these on these cases. And so so he and I were on a panel together a couple of years ago. So he's somebody that I know.

0:21:45 Thomas: What is that?

0:22:15 Andrew: Yeah, I know him. And I will I want to say this. He is someone who is universally held in the highest esteem, I think I can say, by the Maryland Maryland legal community, when you are asked to name someone who's well known as a staunch Republican. And when, you know, us liberal lawyers get together in Maryland, there are a lot of us. And, you Know, you're sort of asked to namely, okay, well, you You know, who are the lawyers who are, you know, Republican, but, you know, you'd want in your corner. And Rod Rosenstein's name is number one on that list, right? Like he is somebody who has that level of respect in

0:22:14 Thomas: You know him.

0:22:25 Thomas: Hmm. OK.

0:22:56 Andrew: Our legal community. Also somebody who is unimpeachably intelligent, right. I would love to get Rod drunk and ask him what it's like having Jeff Sessions as a boss. Uh, I don't, I Don't know that I could get a straight answer from him. And I know if I could, that I Could not.

0:23:02 Thomas: Sure. Yeah.

0:23:12 Thomas: That would be the ultimate,

0:23:14 Andrew: Yeah, that would be a great score. But yeah, Maryland, Maryland unfortunately is a two party consent to be recorded state. So So.

0:23:14 Thomas: Yeah, opening arguments bonus content right there. Well, I'm in California. Let's see. Can we, it doesn't matter more where he is or where we are. Separate legal question. We'll figure it out later.

0:23:30 Andrew: Yeah, right. We'll do it. We will tackle that question in the next episode. So I so I want to say with with with all of that as background that I find I find this memo really deeply troubling because the recommendation is follows. This, I want to read a little bit of it. Okay.

0:23:34 Thomas: Yeah.

0:23:50 Thomas: Well, can you, I am sorry. Can you, and apologies if I missed something, but this is a memo he wrote. Why? Like, how did this come up? Is this a normal part of his job or? I'm

0:23:59 Andrew: As far as I can tell, this is unsolicited advice being sent up the channels by the Deputy Attorney General to the Attorney General. And the subject line of the memo is restoring public confidence in the FBI. So this is a recommendation being made by the number two official in the Department of Justice attorney general that says, hey, I think we ought to do X. And this is the difference between somebody, well, of course not. But there is no No, there is no predicate. In other words, you've you've asked the question and implicit in that is sometimes what you have is the president will say, you know, like like George W. Bush did to John Yoo. He said, write me a memo that opines on whether it's legal to torture people. And then John, you went off and wrote a memo that said it is the opinion of the Department of Justice that it's perfectly OK to torture people, which was preposterous and wrong in every respect. This was not written in response to a request. And when you read it, it is pitched as unsolicited advice.

0:24:31 Thomas: Highly skeptical that this just happened organically.

0:24:58 Thomas: Yeah. Hmm.

0:25:18 Andrew: And that's kind of the first question that I would have, Rod would be, the genesis of this memo? You know, did you decide to write this on your own? What did anybody talk to you separately? You know, and I'd know the answer to that because, you know, certainly I think the obvious inference is that a request was made. And I think it is not coincidental that the request was mad of the highest ranking lawyer in the Trump administration with unimpeachable credentials, right? Right. Like if, you know, when Jeff Sessions writes a memo, you know, yeah,

0:25:34 Thomas: Yeah. Yeah. Well, and could it, I mean, do you think it's more that or more of the fact that Jeff Sessions was supposed to recuse himself from the Russia thing? Is it? So it's like, okay, next, next in line.

0:26:07 Andrew: No, that's a that's a good that's a good point, too. But I think even even if not, it might be overdetermined. Right. Like, I think even if not, there is sort of widespread recognition that, you know, Jeff Sessions is as dumb as a box of hammers.

0:26:13 Thomas: Okay. Jeff Sessions is a moron. On.

0:26:21 Andrew: And so, you know, his his memo. Oh, sure. You can fire whoever you want. Right. You know. Right. So Rod Rosenstein is not Like I said, incredibly intelligent reputation for fairness. I

0:26:34 Thomas: Now, is this the kind of thing where it's his job at stake here? Somebody in this position may find themselves in a tough call where they need to say or do something that they maybe don't necessarily agree with in order to keep their job. Is that what we're looking at here, potentially, true?

0:26:52 Andrew: Would say this. If Rod Rosenstein were fired by Donald Trump tomorrow, he would instantly have a considerably more lucrative private practice than he has. Right. Right. Like, I don't know what the motivation is, but I can say, right, he would be he would certainly be welcomed back in the state of Maryland in a prosecutorial capacity. He could go to any I mean, every major firm with a presence in Baltimore. Yeah, yeah, yeah. But but what I'm saying is this is not this is not the case where on.

0:27:24 Thomas: Well, But I Mean that applies Now Too, though, like I mean, He's Not, he's not, he're not, like, worried about feeding his kids Or something, but But

0:27:33 Andrew: Yeah. And and and more so than that. Right. So, you know, you always hold somebody's job over his head? Yes. Right? You could. There is, you know, if his ambition is to be attorney general and then, you know, potentially to be, you know, senator or vice president or president. Right that I I don't know. I mean, I can tell you I usually have a pretty good feel for when somebody has political ambitions. My former partner, Greg Bernstein at at at Zuckerman Spader, had the office next door to mine and came into my office, And said, I'm gonna run for state's attorney for For the city of Baltimore. And I said, yeah, that doesn't surprise me at all, Greg. And we looked at it and Greg is great. Like, I hope he listens to the show. He's he's one of the best natural campaigners that I've ever met.

0:27:35 Thomas: Yeah, Right.

0:28:24 Andrew: Like he's at these interminably awful cocktail parties like he's out there glad handing people and he loves it. Right. And, you know, I'm like, can I get a.

0:28:29 Thomas: Yeah. You're Not meant for That you're meant for Podcasting, Let's face it, but Okay. So So All That About

0:28:34 Andrew: Yeah, right. Right. Yeah, I like I like meeting our face. So so all of that is to say, I have certainly never gotten the sense that Rod Rosenstein has higher political ambitions for which he would be willing to sell his soul to Donald Trump. I don't know that being deputy attorney general is much to his resume. I mean, it adds it certainly adds something to your resume, but I don'T know that it adds much given where he was previously. Uh, and I don't see him as being somebody over whom you can say like, well, you're either going to do this or I'm going to fire you. Because to be honest, if he were fired, he would make 10 times as much money literally tomorrow, uh, if He were fired today. So hard for me to figure it out. It re it really is. It's a, it's

0:28:39 Thomas: Yeah, Yeah, Okay. Well,

0:29:18 Andrew: A tough one. So

0:29:19 Thomas: Let's Talk About it, what's, what's in this memo? Okay.

0:29:21 Andrew: Memo says, this is the only predicate that's in there. I'm skipping down after some introductory paragraphs. It says, as you and I have discussed, however, I cannot defend the director's handling of the conclusion of the investigation of Secretary Clinton's emails. And I do not understand his refusal to accept the nearly universal judgment that he was mistaken. Almost everyone agrees that the director is referring to Comey made serious mistakes. It is one of the few issues that unite people of diverse perspectives. OK, so that's the thesis statement. The thesis statement is and the interesting is the as you and I have discussed that.

0:29:54 Thomas: And Again, sorry, sorry, this is to Trump, not Sessions.

0:30:00 Andrew: No, this is two sessions.

0:30:02 Thomas: This is to Sessions, okay, okay.

0:30:02 Andrew: It is a memorandum for the attorney

0:30:04 Thomas: Gotcha.

0:30:04 Andrew: General published to the file. Uh, so it says that Sessions has previously talked about this with Ron, but, uh, but Not that he's directed him to, to produce this. Um, and then the entirety of the email is directed to criticizing how Comey handled the Clinton email investigation. Um, and I want to say a couple of things with respect to that. And the first is I want to pat you. I want to pat us on the back. You know, liberals have vacillated kind of wildly in their appreciation, approbation and hatred of FBI Director Comey. And we encouraged of calmness and sanity on that front at this time last year. And in particular, you know, we pointed out we in Opening Arguments episode 13, which you should go back and listen. I, like, I'm I think we're both pretty proud of that episode. It's, uh, it's one of our, it's

0:30:12 Thomas: Yeah. I Oh, yeah.

0:31:01 Andrew: One of our most downloaded episodes. We go through all 240.

0:31:05 Thomas: It crashed our site. It's why I had to get us on some great hosting. Now, Sam Harris, we're on better hosting. Please retweet our episode now. Okay.

0:31:06 Andrew: Yeah. Right. And one of the things that we said was, look, Director Comey had the discretion because we're talking about a subjective standard like intent. If he had wanted to destroy, if he were a partisan hack looking to destroy Hillary Clinton, then at the time when the FBI, when he testified before Congress, he could have said it is the conclusion of the FBI that Hillary Clinton intentionally destroyed or relocated confidential information. And if he had done that, Hillary Clinton would have been from the Democratic. I mean, she she did. She could not have been elected president uh if he had done that and so you know when yes

0:31:45 Thomas: Yeah, Yeah, but to say that because he didn't go that far, you know, I so I thought a lot about this and I don't remember if what I said at the time, I don't don't recall. But I mean, my current attitude is I think he's he did something unprecedented, though. That's the thing about how he handled the conclusion of the investigation. As people have said, normally when an FBI investigation concludes with no charges, you just don't hear about it. Like they investigated. They didn't find anything. End of story. He had a press conference where he announced it and decided to, you know, morally kind of reprimand her in a public way. And that's unprecedented. And do do with that information what you what you will. So, sure, it's not as far as he could have gone to one side. He's not a Republican hack trying to push a Trump agenda or something or a Trump election. But he he did something like he had an effect for sure.

0:32:12 Andrew: Yes. I I agree with that, and in fact, that is the next paragraph in Rod Rosenstein's letter. He says, "The director was wrong to usurp the attorney general's authority on July 5th, 2016, and announce his conclusion that the case should be closed without prosecution." That's stronger than I would put it, but but this the next two Two sentences I agree with. "It is not the function of the director to make such an announcement. At most, the director should have said the FBI had completed its investigation and presented its findings to federal prosecutors." And I agree that that's what you just said. Right.

0:33:24 Andrew: So and then, you know, there's... there's some more on that. The statements that are made and I will add after after criticizing Comey's handling of the press conference in July of 2016, Rosenstein goes on to criticize Comey's letter to Congress dated October 28th, 2016.

0:32:56 Thomas: OK. Yeah. Yeah, yeah, Boy, these Republicans are so concerned with with. Yeah!

0:33:44 Andrew: Yeah, they really are. It's amazing that

0:33:48 Thomas: It's nice of them.

0:33:48 Andrew: They have such concern now about how the FBI potentially politicized the election. And then there are citations from liberal authorities and from Lawrence Silberman and Jamie Gorelick and Eric Holder that all criticized what Comey did in October, which, again, this is tough for me, but that's a lot of crocodile tears at this point. Right. Like to say, oh, we are so concerned about the fact that, you know, Comey released a letter that materially affected the election. And I think I agree with you. You made this point on Facebook. I don't think Comey was trying to hand the election to Donald Trump.

0:33:52 Thomas: Yeah yeah. Mm-hmm. Right.

0:34:38 Andrew: I think he was trying too sort of CYA expecting that that we would have a president, Hillary Clinton.

0:34:38 Thomas: Right. Expecting a Hillary. Yeah. President Hillary in a Republican Congress. So he has to answer to Congress. So he was kind of positioning himself so that the Republicans in Congress wouldn't try, you know, get him fired or something or get him in trouble for not pursuing it enough. But at the same time, you Know, he hasn't gone over too far on to that side. Like you said, he isn't gone overboard in recommending charges and all that. So he walked a line that he saw, but still just to have Republicans be citing this as like such a travesty, the way he handled this. And they're so concerned about that. And that's why he needs to be fired is crocodile tears, I think is a good way to put it.

0:34:44 Andrew: Yeah.

0:35:23 Andrew: The letter ends with, "We should reject this departure and return to the traditions. Although the president has the power to remove an FBI director, the decision should not be taken lightly. I agree with the nearly unanimous opinions of former department officials. The way the director handled the conclusion of the email investigation was wrong. As a result, the FBI is unlikely to regain public and congressional trust until it has a director who understands the gravity of the mistakes and pledges never to repeat them. Having refused to admit his errors, the director cannot be expected to implement the necessary corrective actions." So that's the justification. I said, I, I, I have real difficulty reading this letter because kind of been a few intervening things from between October 28th, 2016.

0:36:16 Andrew: And today, most notably, the fact that we know the FBI has an open investigation into the Trump campaign and potentially the Trump administration's connection at the highest levels to Russian officials, to known Russian spies, to Russian banks. That's a serious and real investigation, and that's what's going on right now. And there is zero chance, as somebody who has been in political positions, who has had the ear of both Republican and Democratic governors in the state of Maryland, and as somebody who is a human being of extraordinary intelligence, there is 0 chance that Rod Rosenstein doesn't know that fact. Like there is there is no chance that he is not aware that the intervening event of, by the way, you are counseling the president to sack the director of the FBI while there is a pending investigation against the president who is doing the sacking, is that don't I don't understand the context. I certainly do not understand the lack of acknowledgement of that, even in a single line. And so it's troubling

0:36:15 Thomas: Yeah, yeah, yeah. Yeah, that's a difficult one.

0:37:38 Andrew: To me. But I want us, you know, the whole, the point of going through this is not for me to be, you know, saddened by somebody who, in whom I hold a significant regard, the point is for those of us who look at this situation and look at This Firing as, you know, replicating Richard Nixon's firing of Archibald Cox, which it's as close an analog as you can possibly get, right? Archibold Cox was a special prosecutor, not director of the FBI, but nevertheless, this This is a far analogous case than Bill Clinton firing William Sessions back in, I think, 1995. remember the grounds, and repeat during the new FBI director's confirmation hearings, to repeat that the grounds advanced by the attorney general's office and endorsed by by the president for firing Director Comey was to restore public trust in the FBI, given their handling of the Clinton email investigation. And I think it is important that, um, yeah, yeah.

0:38:06 Thomas: Sure. Sure.

0:38:43 Thomas: Again, one thing I tried to point out is that Obama didn't even fire him for the handling of the like, it's so weird that there's no way anyone's going to buy this. I don't think anyone buys this. I think this is a this is just a thing to give people to talk about as a distraction. Does any do you think, Andrew, that anyone really thinks that these Republicans are so sad about how he stepped over the line and handling?

0:39:11 Thomas: And by the way, enter into the record.

0:38:51 Andrew: Yeah. Yep. Yeah. I think, I think I think I've made my position on that clear there.

0:39:14 Thomas: I know, I know, this isn't going to come up in the way that, you know, the the EO Muslim ban will come up. But enter into the record with, with judicial notice, Trump's previous tweets about his congratulations on Comey, like, "Oh, thank you for how you handled this uh matter, is excellent," he specifically endorsed Comey's handling of the Hillary email thing, so

0:39:33 Andrew: The Republican National Convention was a three-day festival of people screaming, lock her up. Okay. So let's, you know, it is, yeah. And I don't believe Rod Rosenstein was in attendance at that. I want to read a quote from Alabama Congressman Congressman Mo Brooks. He went on the Chris Hayes show and Chris Hayes asked him, "OK, assume hypothetically that that Trump fired Comey because he's leading an investigation into my administration's ties to Russia, and not because of delayed anger over something we were giddy about six months ago." And here's what Brooks said, quote, As the case may be.

0:39:46 Thomas: Yeah.

0:40:12 Thomas: Dream.

0:40:43 Thomas: On hippie.

0:40:44 Andrew: I I Mo Brooks has a an ACU rating of a hundred, right? American Conservative Union rating of 100. He is uh he is, he is out there. Now, we've talked about this

0:40:45 Thomas: That's not happening. Well, Here. Let's just ask Mitch McConnell. Real quick. Oh, nope. Denied. Request denied. What do you know?

0:40:58 Andrew: Yeah, Right. Well, the House of Representatives gets to appoint a special prosecutor.

0:41:04 Thomas: Well, okay.

0:41:05 Andrew: So, yeah, Paul Ryan, Paul, Ryan profiling courage. Yeah.

0:41:05 Thomas: Let's just ask. I didn't see if he specifically said no already, but Mitch McConnell already came out and said that's not necessary. So did you see if Ryan did too yet?

0:41:11 Andrew: Yeah, right. I did. I haven't seen Ryan having been asked about this, but no, but but look like there are two options here in interpreting Congressman Brooks's statement. Right. The first is this is sincerely held belief and good on him. The second is, in addition or to whatever extent that this is a sincerely held belief, we've talked about how the the path to undoing the Trump administration begins in the 2018 midterm elections. Donald Trump,

0:41:20 Thomas: Okay. Well, we'll hold our breath for that.

0:41:35 Thomas: Yeah. Yep. Yep.

0:41:51 Andrew: The latest poll, he's at 36 percent, right? Like he is hovering somewhere in between Ebola and root canal surgery. Right. And at the point in which all of a sudden you are looking at a D plus 10, D plus 15 swing, even in these deeply gerrymandered districts. Now, Mo Brooks has no chance of losing his seat. He's in a D plus 35. He is in an R plus 35 district. But even Republicans in a very, very safe, you know, R plus 10, I said D earlier, but R plus 15 kind of districts, if there is a Tea Party 2010 wave type year for the Democrats are in danger of losing their seats. And the way in which that happens is you are tied like an anchor to a deeply unpopular Republican president.

0:42:42 Andrew: It's why we have the yodeler, right? Like the question is, the question ist how far, you know, can Trump continue to sink and alienate folks and be deeply unpopular before he's jeopardizing safe seats?

0:42:55 Thomas: Yeah. The top of Yodel Mountain, the top of Yodel Mount is either we retake control of the House and Senate or Republicans grow some courage somehow. That's the top of Yodle Mountain.

0:42:59 Andrew: Right. Right. And both of those, look, both of those are good outcomes, right? Like when you have, it's why we did our episode on gerrymandering. It's why I said I think gerrymandering is the problem that I want to fix in the electoral system before we start talking about other stuff. That's my stock answer to do we need to abolish the electoral college? Let's fix gerrymandering first and then we can chat about it. No matter how bad and I get like, you know, we got some bad results from the electoral I'm with you on that. But the problem with with gerrymandering is that, you know, the House of Representatives is supposed to be sensitive to changes in the political climate. Right. That's why we have it. That'S why we HAVE checks and balances against it. And because of the way gerrymandering has drawn safe districts, it's insulated the House from ordinary shifts in politics of the kind that used to happen, you know, 20, 25 years ago. But you can't insulate House districts from a tsunami. Right. And and this may be,

0:43:11 Thomas: Yeah, yeah, yeah. Yeah That's

0:44:09 Andrew: You Know, right.

0:44:09 Thomas: The thing like no matter how bad gerrymandering might be, voting can fix it, like we can overcome it if we get the numbers. So all right. Well Well, it's

0:44:14 Andrew: Yeah, absolutely. Yep. Yep. So let's let's we're keep we keep beating that drum. Make sure, you know, that you are registered to vote and you go out and vote in the 2018 midterms. We will be.

0:44:27 Thomas: Huge and any, by the way, and any pay attention for special elections. If there's a special election where you are, I, I have, but, uh, but yeah, sure. I'll do it again.

0:44:27 Andrew: Yeah. Yep. We should cover those in more in more detail on the show. Yeah. Oh, I don't

0:44:37 Thomas: It's worth it. We should listen to that crap. Yeah.

0:44:37 Andrew: Listen to I don'T listen to your other shows. I

0:44:41 Thomas: Uh, no, I would, we honestly, honestly, if no, I'll keep it in. Honestly, if we put it in the like intro music of our show, I wouldn't be, that wouldn't be too much.

0:44:41 Andrew: Love you're going to you're gonna edit that out. Right. Because I love your shows. Yeah.

0:44:51 Thomas: Like if we Put like, here's the next election, like instead of ladies and gentlemen, which which is my favorite quote of all time, if we put in here's the next election that you can have an impact on for getting Trump the hell out of office, that would be worthwhile to me. That's how much I think we could do at every show.

0:45:08 Thomas: But anyway, we're out of time. So thanks for breaking that down for us. Really, yeah, I don't know how to interpret that either. That is a conundrum. We're going to have to see how this goes. We are not to the top of Yodel Mountain mountain yet, but who knows? We're yodeling. There's some yodelling happening in this particular segment, I think.

0:45:06 Andrew: Let's Do That Yeah. Let's Do That I Agree.

0:45:28 Clip: He who questions training, only trains himself at asking questions. What?

0:45:36 Thomas: All right, let's go to a patron question. I think this is a great question, good clarifying question that'll help a lot OF people out. Patron Ben Hatcher asks, "While doing my assigned homework, it occurred to me that in this and the immigration ban orders, the court used Trump's public statements and and op-eds as evidence. SCOTUS is mentioned as using the federal's papers and congressional minutes, yet you've mentioned several times that in appeals cases, only the facts presented in the earlier cases can be used. Now it's clear I have no idea what is permissible as finding a fact or finding of law. Help." So someone, this is an SOS call for one Andrew Torrez to swoop in and tell us all how this works It's

0:46:17 Andrew: I I Love this question, and it was, yeah, It was one of these that, um, you know, I Thomas, I think you do like five to ten of these per episode where, uh, it never would have occurred to me that I was, you know, eliding over something that, um, that could could be potentially confusing. So let's let's parse all this together. It is correct. It is a correct statement that I made as a matter of law that the factual record on appeal is generally confined to the facts that were developed at trial. Right. Because the jury, or if it's a bench trial before a judge, is the finder of fact, and you are limited to that record on repeal. The standard to introduce new evidence is a clearly erroneous standard, which means kind of what it sounds like, which is to

0:46:21 Thomas: A great question, right?

0:47:05 Thomas: And

0:47:05 Andrew: Say that the trial court has to have gotten it clearly wrong. Right. Which is to saying, yeah.

0:47:11 Thomas: And I Think back to the Slants, right? Because Even though they, what, what was it that they said, the singer of the band was like something Else, or they said the Creator Of the band was The singer of the band, Which was just demonstrably not true, Even That for some reason wasn't able to be corrected, or they, yeah,

0:47:13 Andrew: Yep. Yeah. Perfect example. Yeah, right. Right, yeah, yeah Yeah. And I have had cases where the factual record, just because the judge or that judge's clerk in writing the opinion will have gotten something wrong, once it was the name of one of my clients, one of the collateral parties. And what we did was, you know, in the pleadings, we just dropped a footnote that said the record refers to this client as X. The client's actual name is Y. You know, since it's not material to the appeal, we will continue to refer to the client as X, you know, as set forth in the record below. But yeah, no, really.

0:47:28 Thomas: Yeah, Yeah. Wow. Really? Oh, it's like the movie Brazil, one of my favorite movies. Are you familiar with that? That sounds like it.

0:48:09 Andrew: I have, I have. Yeah.

0:48:11 Thomas: Oh, It's a great movie. I got to watch that again. It's been years, but when the, the, whoever the, I don't know, the leader or something calls the guy's wife, the wrong name. He just, they, they just go with it. Like he just, the husband's just like, that's your name now. Like it doesn't, I think he does it like two different times. So it's like that where if the, if the record gets your name wrong and it goes all the way through and And it's like unfixable. It's just that's your name now. We'll just refer to you as that.

0:48:13 Andrew: Yeah, right. Yeah right.

0:48:35 Andrew: And, and that helps illustrate that the, that the standard, Right. By textual definition. So if Seth Barrett Tillman is still listening to the show, which which he is, by the way, that's a that's a call forward. We're going to do we're going to revisit Seth Barrett Tillman in a couple of episodes. He's got to be pleased that we're gonna say textually, if the standard is clearly erroneous, that means that if something is is unclearly erroneous. There are a realm of errors that the trial court can make that you are powerless to redress on appeal. So general principle, you're limited to the facts adduced to trial on appeal unless clearly erroneous. We've said that before. So now, what about the two instances, the two categories of instances that are raised in this question?

0:49:22 Andrew: It's Ben says first, what about like the Supreme Court citing to the Federalist Papers or, you know, I quoted John Locke a couple of episodes ago. You know, what About that? And the answer is those sorts of things are persuasive legal authorities. Right. Like you would say, I get that the Federalists Papers is not a binding interpretation of how, you know, X provision of the law means, it's not the same as citing a case. It's not dispositive. But nevertheless, it falls under the same category of the court is free to use whatever external persuasive authorities in interpreting the meaning of words that they see fit.

0:49:39 Thomas: Yeah.

0:50:02 Thomas: Well, that's what I was going to say. But because these additional things that Ben, I think, is wondering, like, how, you know, where's the limit here of what you can use? Everything he brought up that I'm seeing is how to interpret the law, like how to interpret the question behind the law. Not like increasing the fact background.

0:50:03 Andrew: Yeah.

0:50:22 Thomas: You know what I mean? Is that right or not?

0:50:22 Andrew: Well, I want to draw a line because I think the other half of Ben's question is indeed indeed introducing new facts into the equation, which is to say Trump's public statements and op-eds that were introduced as evidence.

0:50:34 Thomas: But when you're interpreting, well, OK, but when you'RE interpreting an executive order, isn't that just used to interpret what the actual meaning behind that order is? I mean, executive order is essentially, when I say interpreting law, I guess, does that not fall into that?

0:50:49 Andrew: Yeah, no, interpreting the law is interpreting the provision of the 14th Amendment to which the executive order applies. This is the factual background behind the executive ordered. These are new facts that we are introducing into evidence. So this is great. This is an even better question than I thought. So yes, what the judge has done there is introduced new facts into evidence. And this in this case, this would only apply to the Ninth Circuit's review of the U.S. District Court of Hawaii's initial injunction restraining the the Muslim ban, because the others were introduced, you know, by the trial court. So we're not talking about an appellate court. But the Ninth Circuit, remember, went back and introduced all sorts of evidence relating to Trump's public statements. And the general principle that governs that is a rule, an example of the rule, not necessarily binding in all circumstances, binding at the U.S.

0:50:56 Thomas: OK, OK.

0:52:00 Andrew: District Court level, is Rule 201 of the Federal Rules of Evidence. But every state also has rules governing when a court may take judicial notice of a fact. So, so here's what Federal Rules of Evidence 201 says. It says, A, scope this rule governs judicial notice of an adjudicative fact only, not a legislative fact. So that's part of the distinction that that we were just talking about. Legislative fact would be in interpreting, you aspect of how the law got passed.

0:52:30 Thomas: OK.

0:52:30 Andrew: Right. B, kinds of facts that may be judicially noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it, one, is generally known within the trial court's territorial jurisdiction, or two, can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned, okay? And then C, the court may take judicial notice on its own or must take judicial notice if a party requests it and the court is supplied with the necessary information. So, in fact, in every trial in which I have participated, I have asked the court to take judicial notice of a fact. And I think in every trial in which I have participated, the court has said, you know, this court will take judicial notice of X particular fact.

0:53:16 Andrew: And in many cases, it is, you know, something totally straightforward, like a witness will be testifying that, saw this this person, you walk down the street and turn the corner. And then opposing counsel will object and say, objection, that's speculation. She didn't see the witness actually turn the corner. And, you know, either I or the judge will say this court can take judicial notice of the fact that the horizon is a vanishing point to the human eye or something like, you know, and I'm 100 percent serious that is that is a near direct quotation from something that actually transpired. So you're.

0:53:55 Thomas: Yeah, I'm thinking of the case in a callback to Miracle on 34th Street, Law'd Awful movies where they're talking about what? What? Like it's like the post office, like the court will notice that the post office is, I don't know, something like that. Somehow they take notice of a fact there. I forget what it is, but

0:54:01 Andrew: Yes, yeah, yes. Yes. Yeah, you can say it was this court. I asked this court to take judicial notice of the fact that the post office is a federal agency. Right. Like, yeah. Right, so, yeah, so

0:54:12 Thomas: Right. Okay. So basic stuff. So how does that apply to this question though? Cause that sounds is, is yeah, go ahead.

0:54:23 Andrew: When Trump so What you want to do is if you want to introduce the fact that Donald Trump in a public debate said, yeah yeah we're still doing the Muslim ban we're just going to call it extreme vetting, extreme vetting is the Muslim band, right, it is not subject to reasonable dispute, right?

0:54:25 Thomas: Oh, so you're saying it because it's such an easily demonstrated fact. It's not. So it's right. So it's not, so it's, so no one would. Okay, okay. I see. So because because it's like, here's a tape. He said this like that. No one's going to, I mean, could they make the arguments that something's doctored? Could they fight it on that grounds? Or is it just because it'S so easily demonstrable that it was on the news? You know, like, okay.

0:54:49 Andrew: Yeah.

0:54:59 Andrew: You you Could, right. Like, I read B2, right? It has to be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. So, um, I have never had a dispute over a fact of judicial notice, uh, but you could write, like, you, you could, as a lawyer, argue it, right, if somebody were to say, I want this court to take judicial notice of the fact that Hillary Clinton has literally murdered babies and chopped them up.

0:55:00 Thomas: Okay. Hmm. Right. Right, right. I was going to say, you get Lionel Hutz trying to say like, take judicial notice of the fact that defended is guilty. And that's like a guy when win. They

0:55:27 Andrew: And then. Right. Yeah. Right, right. But but now, I mean, I use the reason I use The Alex Jones quote, right, that that is a literal quote. He said, you know, Hillary Clinton and has literally chopped up babies and murdered them, you know, if you were to introduce that and you'd be like, yeah, no, the source is InfoWars, here it is, right?

0:55:50 Andrew: I would imagine if I were on the opposite side of that, yeah, I would say that is not a source whose accuracy cannot reasonably be questioned. So that provision is there. But I do want to say, and again, maybe it's because I have not tried a case in the post-alternative facts era. I have not had that come up as an issue. Like usually, you know, you ask what you've, what you do is, you know, when you have a witness on direct.

0:55:49 Thomas: Cannot tell a lie. Yeah.

0:56:10 Thomas: Yeah, so when you've made that vanishing point argument, you weren't arguing against a flat earther, sounds like. They weren't like, whoa, what's all this vanishing-point-horizon stuff?

0:56:24 Andrew: Exactly. Right. Yeah. Everything just extends out to it. Yeah. Until there's a barrier of ice around the Edge of the world. Yeah. No, so usually what happens is, uh, when you have a party witness that you were introducing on direct, everything that is a factual predicate to what, uh, to that witness's testimony, you would want to introduce, right? And and you would introduce either by that witness, his own testimony, or by documents, or or that sort of thing. And so judicial additional notice allows you to, when you have not, you've not introduced a particular document that establishes a certain fact, or if it would be testimony that doesn't fit into the definition of witness testimony. Right. Like, so, you know, the fact that the earth is round. Right. Is.

0:56:34 Thomas: Yeah. Yeah. You don't need to call in a witness to that.

0:57:16 Andrew: Yeah, exactly. You don't need to put that in your witness's mouth. And if you need to sort of connect that up for an argument, you would say, I asked the court to take judicial notice of the fact that the earth is round. And yeah,

0:57:18 Thomas: Yeah, right.

0:57:28 Thomas: Until the day. You're so naive, because a few years from now we will be teaching the controversy on flat earth and there will be a court case. Yeah, teach the controversy. All right, that is a great question, great explanation. So it sounds like ultimately it is a little confusing. But But all the facts that they brought in, you know, like you mentioned, Trump's public comments and that kind of stuff, all that stuff was so easily determined to be, like, there's no controversy about the fact that he said these things. So that's why they can just kind of get it in.

0:57:31 Andrew: I'm, I am all for that.

0:58:01 Thomas: Cool. All right. Thanks, Ben, for the question. Great stuff. Is time for our co-favorite day of the week, I

0:58:00 Andrew: That is exactly right. Oh, Patren Tuesday. I love new patron Tuesday.

0:58:12 Thomas: Love it. I could, I could feel it in the air that it was new patron Tuesday, and it's, it's funny because I always feel I get such a positive feeling from new patron Tuesday, and then consistently I get so excited about it, such a negative feeling from whatever our next segment tends to be. It's just such an interesting kind of bipolar, uh, experience for me. But we've got to thank our lovely new patrons over at patreon.com/law. Yeah,

0:58:34 Andrew: Yep. And those patrons are Taylor Briggs, Millicent J. Allen, Brad Kalmanson, Austin, Matthew Phillips, Andrew English, the Magic Tapeworm and Eli Youngs. Thank you all very much.

0:58:50 Thomas: I want to bring back Millicent as a name that's a great one.

0:58:52 Andrew: Oh, wait. Wait, we had the magic tapeworm and you decided to focus on Millicent. Interesting.

0:58:56 Thomas: Well, I want, I don't want to ring back the magic tapeworm. I have had enough of the magic tapeworm. Alanna Phillips, Jon Grayson, Kevin Phillippi, David Rutherford, Ian Todd, Justin Wilder, Kim Spence, and Stacy LoSchiavo. Interesting. So thank you guys so much for pledging. We appreciate, we hope you enjoyed Law'd Awful Movies number six. It was great. I enjoyed it. And we got, we got great plans coming up too for a Lot Awful Movies, some really good stuff.

0:59:26 Andrew: Oh, yeah, we have good we have good guests lined up for a Law'd Awful Movies, seven and eight. And oh, yeah. They're going to be great. So get in while the getting's good. And thank you. And thankyouverymuch. A sincere thankyou to everyone who responded. We we won't revisit, but we did talk a little bit last week about Patreon. And you guys responded in a really positive way that that was great. And and we we really appreciate it.

0:59:29 Thomas: And good movies, so good stuff. Yeah, Thank you, you guys.

0:59:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:00:01 Thomas: Boy, I feel like I was so happy a moment ago, but now it's time for the answer to Thomas takes the bar exam. This is critical. Now I know we say this a lot. This is crucial because if I get got this one wrong, I am below 50% for the first time in a long time.

1:00:16 Andrew: So here's our question. This is a young woman joined a social media service that provided networking with other business persons and entities nationwide. She discovered that that social media services selling off personal information. She brings a class action breach of contract case and sues for alleging two theories of damages. First, she contended that she and the other class members suffered embarrassment and humiliation from the disclosure. And second, that she She and the others must be compensated for the market value of the information seized. The question was, will the court recognize these allegations as sufficient to state a claim for breach of contract? So our our proposed answer was, as usual, to yes, to no. A, yes, because the service breached the duty of good faith inherent in every contract.

1:01:05 Andrew: That's a reasonable sounding answer. Answer. B, yes, because these are common types of damages that are authorized in breach of contract cases. Also a reasonable seeming answer. That's what Thomas chose. C, no, because internet laws protect absolutely all communications and downloads of this nature as part of the service's guaranteed scope of free speech rights. If that doesn't scream ridiculous answer to you, go back and listen to more opening arguments. So we will see and we will mock anybody who answered C on Thomas takes the bar exam. You should know better than that. Or of damages in a breach of contract case and the unauthorized collection of personal data does not establish an economic loss. So Thomas, you guessed B and I am sad to tell you that the correct answer is D. I think you were, yeah, Yeah.

1:01:29 Thomas: Yeah. Gosh, you gotta be kidding me. Yeah,

1:01:58 Andrew: I think you were waiting heavily between the two. Here's the way to approach it. And let me say, yeah, yeah.

1:01:58 Thomas: It was B or D. It's the same thing. It was so close because the problem was I thought one of them was a legitimate contracty thing and and the other wasn't, so I was kind of trapped between, yeah, yeah

1:02:10 Andrew: Right. In that case, yeah you should go with the not. And the reason is it is I would not have known if the question were, can you recover in breach of contract for the market value of seizing your personal information. I'm with you on that in that that strikes me as not a facially invalid claim, right? Like that you can make a Good argument. I want to talk about a couple of cases that I pulled up because I was a little bit surprised by the framing of the question. It's clear that you cannot recover for embarrassment and humiliation in a breach of contract case, right?

So I knew that one was A no, because remember, the whole idea on breach of contract is to put the parties In the position that they would be in had there been no breach, right, and breach of contract is not meant to carry with it moral approbation. Like, for example, we want, if you, if I'm locked into a contract with you, you know, selling you goods at a certain price and I can get twice as much from somebody else, we want under ordinary principles of economics for me to break my contract with you, get twice as much and then pay you your damages, right?

Like, that's how we have an efficient marketplace. So we don't want to put any additional disincentives to breaking a contract. On the other hand, you know, you don't want to encourage people to break contracts all the time. So looking at that, the two yes answers were yes, because the service breached the duty of good.

1:02:35 Thomas: Yeah, you're right, you

1:03:49 Andrew: That doesn't really apply to the embarrassment and humiliation. And B, yes, porque these are common types of damages, which is what you guessed. And embarrassment and humiliation are not common types of damages in breach of contract cases.

1:04:01 Thomas: Know, I've got to say, after the last, gosh, it's probably been like three in a row, or at least two, where this has happened, I have to say I've taken a new outlook, I feel a little better, I've gotten a little zen with this, here, let me explain, I've looked at now my duty on the the bar exam, ever since I came up with Thomas's second chance law firm, whatever, I look at my duty as just eliminating two of the answers. Like if I, so like, yes, I want to get above 50%, of course, but if I eliminate two ofthe answers every time, and then just, you know, because of the luck of flipping a coin, sometimes you don't get exactly five heads and exactly five tails. If, uh, you Know, if I fall below 50% because I happened to guess the wrong out of two every time. I'm going to live with that. So I'm trying to cope with the just the sheer emotional distress that I'm feeling from being below 50%.

1:04:54 Thomas: But that's how I'm doing it. I look at my new job. Thomas eliminates two answers in the bar exam. And you know what? I am aces at that. I don't know that I've gotten any of them wrong. I'm almost always eliminating two answers.

1:05:04 Andrew: I like. So this is Thomas. Thomas Zen takes the bar exam. You got it. That's you're not. There you go.

1:05:11 Thomas: Yeah, yeah. Thomas eliminates half the answers on the bar. And

1:05:15 Andrew: All right. So

1:05:15 Thomas: Then the other two. Hey, if I flip a coin 20 times, I'm not guaranteed to get 10 of each, you know? Like, sometimes maybe you get 5 heads and 15 tails. Who knows? I can't be faulted for that.

1:05:28 Andrew: I found two cases, InRay JetBlue Airways Corp. Privacy Litigation, 379 F. Sub. Second 299, in which the airline's disclosure of passenger private information to a third party in violation of the airline's privacy policy had no compensable value, you uh and uh an earlier case, In Ray Double Click uh Inc. Privacy Litigation, I don't know what that company is, I know jet blue obviously, um, in which uh same thing, unauthorized collection of personal information was not held to be an economic loss. Um, suspect that that view of the world is probably changing. So I, that's my way, I know you're zen about this, but it's my way of saying it's

1:06:12 Thomas: Yeah, I think it's pretty frustrating, too, because every one of these... And by the way, thanks to Charone Frankel for being lockstep with me, like, every time. She's, like... She's adjudicating the case. Somehow she picks the same one as me, and then she's like, I can'T believe this is wrong. Like, almost every time, so... I'm not alone. It's not as though I'm, you know, there are lawyers who agree with my interpretation of the bar exam, Andrew. So there you go.

1:06:14 Andrew: A tough part.

1:06:37 Andrew: Get a big shout out to Sharon, who has issue issue with some of my rulings on bar exam questions. Yes, yes.

1:06:42 Thomas: Yeah. She is applied on my, she's appealed on my behalf several times. She's written amicus briefs on like why, why Thomas is actually right on this. It was good.

1:06:48 Andrew: It's good. No. And And we should say the Hall of Fame patron Charone is a terrific practicing lawyer in her own right. She runs a podcast called Habeas Humor, which you should, uh, download and, and, uh, and give a listen to if you you like this show. So all right.

1:07:04 Thomas: Yeah, Well, 11 for 23. I'm a failure. So let's see who else is a failure or who is not a failure, I suppose. So future Andrew, who is not a Failure this week.

1:07:05 Andrew: Oh, This week's winner is N. Boerke, N-B-O-E-R-K-E, whose rather confusing Twitter handle is actually at Boerke underscore N, at B-O‑E‑R‑K‑E underscore N, who sent us this delightful picture of what I assume is his infant son in a powdered wig holding a gavel who says, "Fine, we can't boot Gorsuch. There's only one logical path for revenge," which presumably means putting this baby on the Supreme Court. And N says, he says 0868's TTTBE is D, which is correct.

1:08:01 Andrew: And then there's a challenge of tell him he's not ready for SCOTUS. I can't because he got the answer right, even though he appears to be about three months old. He's got delightful little Ben Franklin glasses. He has a baby. It's adorable. You should follow Boerke underscore N at B-O-E-R-K-E underscore N, who is this week's winner. Thank you very much, N, for your delightful graphic and your incredibly cute little baby there. And you are this week's winner. Okay

1:08:37 Thomas: All right. Well, on that note, I'm going to go study up. And by that, I mean, edit and listen to this show a lot. So thanks so much for listening, everybody. We appreciate it more than we can even say. And thanks so Much even more to even those to those who patronize us over at Patreon.com/law. And thanks to Andrew, most of all, for being our expert. We'll see you on Friday.

1:09:09 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.