OA101: DreamHost and Free Speech

Transcript

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

[0:00:02] Is that why you hit your wife? Withdrawn. Is that why you drink and pop pills? Withdrawn. Are you a virgin? Withdrawn. [0:00:19] It says here you robbed a hospital. Why'd you do that? Yeah, I'm not guilty. That's not what the other lawyer said. [0:00:30] Actually, I was going to stay in my office tonight and work on my law blog. Of course, the Bob Loblaw Law Blog. Wow. You, sir, are a mouthful. [0:00:45] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast. [0:01:17] Hello, and welcome to Opening Arguments. This is episode 101. And if I did all my work that I needed to

0:01:23 Thomas: Do, you just heard a new intro. Thanks to everyone. Oh, such a good intro. Yeah, it was great. Wasn't it great? It was so great. Man.

[0:01:29] I miss the Sharkticon stuff. I especially love the Simpsons and Futurama quote.

[0:01:36] That's always going to be applicable.

0:01:38 Thomas: Are we going to get even better? I love the Phil Hartman quote. There's always going to be a Phil Hartman. Thanks to everyone who submitted about 400,000 million bazillion jillion quotes for me to use. It's really hard to choose from, but that's awesome. I love having way more participation rather than way less. So thank you guys so much. Much. And if you didn't, if your quote didn't get put in there, well, you'll just have to keep trying for next time.

[0:02:03] And with that said, how are you doing, Andrew Torrez? I am great. How are you? How's little baby opening arguments? Doing Great. Still a tiny baby, TM. She's, someday she'll, I don't, I think she'll just be a tiny person at this point. She might just be, you know, maybe she'll be like a foot

[0:02:17] tall when she's grown up because she's just tiny at all times. No, fine with me. All right Today's episode we got a lot of good stuff for you, Andrew. We're going to answer, and I say "we" in the royal sense, uh, did the U.S. Congress just abolish the Fourth Amendment, something that's making the rounds there, and this is a big one. I can't wait to tackle this in our main segment, the dream host search warrant. A lot of people have been talking about this, the Trump administration asking for the user data of everybody who visited a certain website. So So we're going to find out what's going on there. And then finally, we're going to take a trip to Yodel Mountain. It's long overdue, it feels like. This is going to address the conspiracy issues with the Russia stuff that you've seen. Meetings taking place, promises possibly made. So we're going to tackle that. I'm excited. You ready?

[0:03:10] I am ready. Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh no, I thought that was just a figure of speech. Case closed.

0:03:20 Thomas: Closed arguments. Ah, we don't get to do this one that often, but it's a good segment. Andrew, did the U.S. Congress just abolish the Fourth Amendment by creating the Washington Metro Rail Safety Commission? What?

0:03:34 Andrew: Yes, obviously. Oh, of course not. No, I'm sorry. We have gotten a ton of people who have asked

[0:03:40] us about this, apparently in the, like, Ron Paul nutbag community. Like, uh, and I'm going to link to an article, uh, Lyman Smith pointed it out to us. Uh, it's a site called zero hedge.com. And in the, uh, in the great tradition, uh, not to reopen old wounds they have a manifesto on their site and the zero hedge manifesto says our mission is this is their number one bullet point, to widen the scope of financial, economic, and political information available to the professional investing public, to skeptically examine

[0:04:18] and, where necessary, attack the flaccid institution that financial journalism has become. So that's ZeroHedge.com. Here's what they have to say about a bill that just passed. And maybe I should give the background first on what this bill is.

0:04:38 Andrew: And then I'm going to read what Zero Hedge claims about it, which is very, very, there are a bunch of different sources that are this, but this was the first one that Lyman sent to me. So that's why I'm using it. And they look

[0:04:50] to be the source of the consternation, but I could be wrong. So in the DC suburbs and Washington, D.C. itself, we have a subway. It's called the Metro system. It's Metro Rail. That subway runs from Southern Maryland. In fact, I used to live by one of the metro stops, the Layhill metro stop, which is at the far end of the red line, uh, through into downtown Washington, D.C., uh, and then into Virginia, and commuters use it to get from the suburbs into the city. Metro, because

[0:05:21] it goes across two states in the District of Columbia, you need a body to then regulate all of Metro, right? Like, you wouldn't want the state of Maryland to only be able to regulate the part of Metro that's in the state of Maryland, right? Like, you need some kind of larger regulatory body. But what do you do when you have a regulatory body that crosses multiple states? And the answer is you form what is called an interstate compact.

[0:05:52] Like when two states kind of manage a bridge or like a port or something? Yep. Right. The George Washington Bridge, the Port Authority of New York and New Jersey is perhaps the most famous interstate compact that came

[0:06:05] to prominence during the Chris Christie Bridgegate scandal. So that's what you have to, and in order to get an interstate compact, you have to go to Congress, right? That makes perfect sense, right? You can't just, you know, That's been the structure. It's one of the longest standing aspects that are still practiced today, day the way law was practiced 250 years ago, right. So, so that's that's what they did, and they went and, uh, and what was passed was House Joint Resolution 76. It has been signed into law by the president as of, uh, August 22nd, so last week. And it is the granting consent and approval of Congress for the Commonwealth of Virginia, the state of Maryland, and the District of Columbia to enter into a compact relating to the establishment of the Washington Metro Rail Safety

[0:06:55] commission. Right, so that all seems pretty straightforward. Now let's see what does zero hedge dot com have to say about this. They say, oh, this may sound logical when its power includes things such as to adopt, revise, and distribute a written safety oversight program and to review, approve, oversee, and enforce the adoption and implementation of WMATA, that's the Washington

[0:07:20] Metro Area Transit Authorities, public transportation agency safety. However, there was one major red flag buried within the text of the bill that stems from a list of powers given to the Washington Metro

[0:07:32] Rail Safety Commission, and it violates one of the basic tenets of the Constitution. And here's their quote. In performing its duties, the commission, through its board or designated employees or agents, may enter upon the WMATA rail system and, upon reasonable notice and finding by by the Chief Executive Officer that a need exists, upon any lands, waters, and premises adjacent to the WMATA rail system, including without limitation property owned or occupied by the federal government, for the purpose of making inspections, investigations, examinations, and testing as the commission may deem necessary to carry out the purposes of this MSC compact. And such entry shall not be deemed a trespass. Now that still seems

[0:08:15] kind of straightforward. So, Fourth Amendment, gone? Yeah, this text gives the commission the authority to enter property near the metro rail system, quote, "without limitation," end quote, and without a warrant for the purpose of making taking inspections, investigations, examinations, and testing. This clearly goes against the Fourth Amendment, which states that Americans' rights to be secure in their person's house's papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause. When the bill was brought to a vote in the House of Representatives, there were only five congressmen who voted against it. Justin Amash, Republican from Michigan, Walter Jones, Republican from North Carolina, Thomas Massey, Republican from Kentucky, Alex Mooney, Republican from West Virginia, and Mark Sanford, Mr. Appalachian Trail himself, a Republican from South Carolina.

Amash called out the hypocrisy surrounding the fact, even though the legislation is now a clear violation of the Constitution, only five of us voted against bill allowing government to enter, search private property in parts of Virginia, Maryland, and D.C. without a warrant. And then it ends with, "This is not the first time Congress has quietly passed away a bill that will take away some of the most basic rights from law-abiding citizens, and it won't be the last. This could be laying the blueprint for future legislation across the country." And this was written by Tyler Durden over at ZeroHedge.com. So, you know, with all of the sober and reflective analysis that

[0:09:41] you would expect from the fictional character within a fictional movie. Yeah, now what does this bill actually, you mean that's not what it actually, guys? Uh, shockingly, so this creates the Metro Safety Commission. The reason it creates the Metro Safety Commission is because over the years, as, uh, we have entered a period of inability to govern and austerity, uh, the amount of money that has been earmarked from the federal government to the District of Columbia to pay for the Metro has been on a rather steady decline, and

[0:10:19] so, and so. So it's been difficult to make needed improvements. There have been long outages. There have been problems with upgrading trains. There have been several public train

[0:10:31] derailments and accidents. And this is in Washington, D.C. And this is, it's a commuter train, right? Like people who are government employees take this

[0:10:43] train and people have been killed and hurt and inconvenienced. So, safety commission. Purpose of the safety commission is to have safety regulatory and enforcement authority over the Metro system and shall be the oversight authority under the federal statute that authorizes it. It shall be subject to the commission's rules, regulations, actions, and orders. So that already we're talking about, that's all of the powers that this commission has to begin with. And then we go to Article 4, which is the section.

0:11:20 Andrew: Section 30 begins with, in carrying out its purposes, the commission shall,

[0:11:26] consistent with federal law, adopt, revise, distribute an oversight program, Review, approve, oversee, and enforce the adoption of that program. Review, approve, oversee the adoption, implementation of any corrective action plans. Implement and enforce relevant federal and state laws and regulations relating to safety and audit the compliance. Okay, that's what, that's what they're allowed to do. And then we get to the section 31, which says, in performing its duties, the commission through the board or designated employees

[0:11:58] or agents, may conduct investigations regarding testing testing of the WMATA personnel and contractors, property, equipment, facilities, rolling stock, and operations, including without limitations, electronic information and databases, through reasonable means, which may include the issuance of subpoenas. And then here's where the enter clause comes in. It's section 31B. And what it says is, it says the part that I read before. It may enter on lands that are adjacent to the rail system, right? Because when the federal government seizes by eminent domain and purchases

[0:12:36] land in order to build the metro rail system, they buy everything that it sits on. But you could imagine that in order to access a certain part, you know, in order to see whether a beam is falling down or, you know, the bolts have been properly tightened or whatever, you might have to stand on land that is next to the land that the Metro is on, right? And that's literally what it says. Premises, lands, waters, and premises adjacent to, that is, next to the rail system. System um The without limitation language is, uh, totally misused by Zero Hedge, because it says they may enter upon lands, waters, and premises, including without limitation, property owned or occupied by the federal government.

Okay, and what that means in that, in that list, the reason, as a lawyer, I use without limitation, I've done that in contracts I've written for you to us, right? Like Like, the reason you use without limitation in a list is to say this following list is illustrative but not exhaustive, right? So if they didn't say without limitation, if it just said, and premises adjacent to the WMATA rail system, including property owned or occupied by the federal government, it would not be as clear that it would also include other property, right? So without limitation doesn't mean I can get on the land and

0:14:03 Andrew: Do whatever the hell I want. It is without limitation applies to the list of lands upon which they can enter. And what it means is federal government lands, state government lands, private property.

[0:14:16] And conduct the testing. And it does end, the sentence correctly quoted ends with, and such entry shall not be deemed a trespass. Zero heads left off the next sentence, which says, the commission shall make reasonable reimbursement for any actual damage resulting to any adjacent lands, waters, and premises

[0:14:34] as a result of such activities, right? So there's nothing here, in sort of getting everything all together, everything that is described as inspection, investigation, examination, and testing is investigation, examination, inspection, and testing

[0:14:54] within the context of the safety of the metro system, right? On lands that abut the metro system because people have been killed by rail car derailments. So did they, did they

0:15:07 Thomas: Really try to make it like this gave them authority to go anywhere and do anything? 'Cause "without limitation," it

0:15:14 Andrew: Is the, they, "without limitation" is the only phrase that is in bold italics

[0:15:20] in this article.

0:15:23 Andrew: And it, and it quotes, "for the purposes of making inspections, investigations, examinations, and testing," but it's not inspecting, investigating, examining, or testing your property, it's examining and testing the Metro Rail system. And the fact that they may have to enter on your property in order to access, like, if you live next door to the Metro, you understand, right? Like, there, there is, there's a positive benefit to that, which is you get to walk to the Metro from your house. There's a negative benefit to that, which is a negative detriment, which is great, it's noisy, and people come out to service the Metro Rail system and they got to walk across your property to get there. If they cause any damage, the statute says they have to pay you for any damage that they, that they cause. If they take your

[0:16:06] property, right? That would be a Fifth Amendment taking, uh, and you would, and they would have to, uh, recompense you for the value of your property. So, you know, if in order to repair the Metro they had to put a support brace up, and that abutted your property because your property is next to the Metro lands, then they would have to pay you for that as well. This doesn't in any way affect that, and they can't, it, right, there's nothing in there that allows

[0:16:32] them to conduct inspections of like your house or like, I, I just, other than the classic sovereign citizen, we're taking words out of context, and it says, "without limitation," and we want to scare you. The fact that there are five Republican members of Congress playing along with this, either too stupid to know what this means, or in some cases,

[0:16:58] I'm sure it is, knowing full well, akin to Steve King talking about death panels in Obamacare.

0:17:04 Andrew: Right, like he knew full well there were no death panels in Obamacare, he was using it to rile up his base. And, uh, and this is something that is being used to rile up, uh, libertarians, Ron Paul supporters, people who are on this, uh, Zero Hedge, which, like, this site has a whole bunch of stuff about, like,

[0:17:23] uh, you know, the classic Fox News, like, you need to buy gold, uh, convert your money to gold, supplements, supplements, it's survival kits. We gotta start selling those. I haven't, I haven't seen any, I haven't seen any baker buckets or, you know, survivalist stuff. Speaking of the show that always rips us off, Last Week Tonight,

0:17:41 Thomas: When he covered, um, Alex Jones's, like, supplements he sells and everything he shills, it was so great, we need to start doing that, Andrew, we gotta come up with a good storyline, the Elections Have Consequences Product Starter

[0:17:54] Pack, which is, yeah, our Opening Argument survival kit. I, we really could, yeah, that, oh, did the, old, have you read most of

0:18:07 Andrew: It, the old, uh, there was a, there was an Infocom text computer game of the Hitchhiker's Guide to the Galaxy that was released for dinosaur computers back in the 1980s when I, I was a kid, and uh, and

[0:18:19] the box came with, used to, like, used to come with all this fun stuff, uh, in addition to the game, and one of the things that came with was a pair of peril sensitive sunglasses,

[0:18:31] and the idea was you were supposed to put them on, and whenever there was something really, really dangerous, they would immediately go opaque and, uh, shield you from having to look at it, and they were just, of course, so we're

0:18:43 Thomas: Taking submissions for our, what should be included in our opening, Opening Arguments, Elections Have Consequences, Survival Pack.

[0:18:49] Opening Arguments survival cap, I like it. So, closed arguments, but there you go.

0:18:56 Thomas: Case closed. Case closed. Nonsense. All right, on with the rest of the show.

[0:19:03] All right, Andrew, this has been Making the Rounds. It's something that I really am glad to have you clarify because I haven't had the time to look into it myself, and it's something that I feel like we could be very alarmed about, or it could be fake news, I'm not, it's hard to know these days without investigating into stuff, so I

[0:19:22] tend to remain agnostic on a lot of this stuff. This DreamHost thing, is it, is it really true that the, the government, the Trump administration, is kind of trying to hunt down, in a way, the people who were on this anti-Trump

[0:19:34] website? Yeah, Thomas, it is absolutely true that the Department of Justice issued a search warrant

0:19:40 Andrew: That was served upon DreamHost, which is a web hosting company, seeking information

[0:19:47] about the website DisruptJ20.org. J20. And that, yeah, I don't know what the J20 is supposed to mean, and I did not click on the link for reasons that I'm about to explain to you, right? Right. It is described by DreamHost as a website that organized participants of political protest against the Trump administration. What

[0:20:13] the search warrant initially requested was all of the information about every visitor to that website. Right. So that's part of why I didn't click on it.

0:20:25 Andrew: Right. 1.3 million visitor IP addresses, in addition to contact information,

[0:20:31] email content, and photos of thousands of people who visited. Photos, yeah, oh, like they have a profile or something, I guess, there were email lists that were maintained on there, and so you might have had like a profile to sign in. I, again, I can only speculate, because, yeah, as I've said, I did not click on this website, uh, out of an abundance of caution. So that search warrant was filed, filed, DreamHost sent back, uh, some requests that they narrow the scope of the search warrant. And, uh, what the DOJ did instead was file a motion to compel in a superior court in Washington, DC that says, Hey, look, this is a valid search warrant. And then dream host, uh, filed a

[0:21:14] motion to, uh, quash the search warrant. And then the hearing was delayed by a week, and during that, that delay period, it was delayed from the 17th through the 24th. Uh, during that delay period, the government greatly restricted the scope of the information that they were seeking, and in particular, they dropped their demand for information about the visitors to the website. Um, they dropped their demand for certain unpublished data, uh, and they limited the time frame on the requests to information before the

[0:21:53] inauguration. Oh, this has got to be the J20, January, right? There you go, you figured it out. Yeah, so it was, an in connection with that, dream host then filed a sir reply and said, we

[0:22:05] greatly appreciate, uh, that you, that the federal government has narrowed the scope, but we still have some problems with it. Right, so for example, they say in their, in their reply, "Much has changed since the government filed its motion to compel. DreamHost's opposition to the initial search warrant was because of the danger that it posed to First Amendment interests. And so in its reply, the government has moved to excise entirely from the search warrant the warrant's unlawful and highly problematic requests for data relating to visitors to the website, and Be, any unpublished data subject to the Privacy Protection Act. The government has also requested a time limit ending on January 20th, 2017 to be imposed on the information requested, and that a new section will be added explaining what the government will do with non-relevant data that it collects." And then they say, we greatly appreciate that the government has done that, but it still lacks sufficient particularity, because it still wants us to produce email discussion

[0:23:05] lists that were hosted on the website. Site. I didn't know that those were still being used.

0:23:11 Andrew: I was on a Baltimore Orioles email discussion list back in the early nineties, it's what led to my first book contract. So then there was a hearing that was on the 22nd, there was a hearing on the 24th, and the court largely ruled in favor of the government on the modified search warrant, on the greatly restricted search warrant that does, does not require visitors to be disclosed. But the court also imposed additional protections on the collection of data, of the email lists, of the data about the site itself. And those restrictions include that they are going to be produced for an in-camera inspection, which means by the court, before it's turned over to the Department of Justice, that the Department of Justice is required to produce a, quote, minimization plan that will include the names of all the government investigators who have access to the data and list all of

[0:24:14] the methods that will be used to search through the data for relevant evidence. Okay, hold on. Maybe I've

0:24:21 Thomas: Missed something because of newborn baby brain. What the hell is the purpose of getting this data? What

[0:24:27] are they alleging? Why do they need it? I don't get it. So the search warrant itself requests

0:24:34 Andrew: All information that constitutes fruits, evidence, and instrumentalities of the violation of the DC Code 22-1322, which I'm going to get to in a second, involving the individuals who participated, planned, organized, or incited the January 20th riot relating to the development, publishing, advertisement, access, use, administration, or maintenance of any website enumerated in Attachment A, including DisruptJ20.com. Now, what is DC Code 22-1322? That is rioting or inciting to riot, and it is defined as a riot in the District of Columbia is a public disturbance involving an assemblage of five or more persons, which by tumultuous and violent conduct or the threat thereof creates grave danger of damage or injury to property or

[0:25:24] persons. So did this happen or did they explicitly call for a riot? It is alleged that that's what happened, right? Like, that's that's what DisruptJ20 was supposed to be, probably, "we're going to go down and we are going to disrupt the inauguration."

0:25:36 Thomas: Is there any, like, plausible deniability if they just meant protest, or, they, you know, it is, or that is, that something

[0:25:42] that has to be determined in the facts? Yeah, well, right, there certainly is that defense, but remember

0:25:49 Andrew: That for a search warrant, you don't have to prove the crime first, okay? You just have have to say that it is likely to produce evidence that relates to a potential crime. This report of the disrupt j20 this, is I will include this in the, uh, in the show notes, uh, there's a link to a Washington Post article which says, "Inauguration protesters vandalize, set fires, try to disrupt Trump's oath as police

[0:26:14] arrest more than 200." Okay, so, um, that was, I, you know, it was sort of of overshadowed by, by everything else that was going on with the inauguration, but, but apparently there were, uh, demonstrators that, uh, that violate the law, at or at least, uh, for which there were, there were probable cause to, to arrest. Okay, so that's the underlying kind of criminal factual, actual situation, um, in

[0:26:45] the scope of trying to find out. Okay, so, so now, you know, let's play that out. Suppose there is, uh, organized riots that are, that are a crime, right, that there was vandal-, vandalism, destruction of property, you've now planned this on a website, is it legitimate to ask the host of the website, "Hey, look, we think this is where the crime was planned,

[0:27:09] turn over the information"? Yeah, every visitor, certainly, well, that was their objection.

0:27:16 Andrew: Right, they said, "Look, if you want to narrow this down and you want the information of the person who took out the disrupt j20 website, yeah, we'll give you that. Right If you want narrowly tailored information that is likely to give you evidence about the commission, coordination, planning, conspiracy to, to undertake a crime, yeah, we'll give you that. But we're not going to give you 1.3 million people visited this website, right? We're not going to give you the data of everybody who visited." And, because, and remember, that was in the original search warrant, because dream host was willing to fight this in court, the government was willing to back down and remove that request, right? So, you know, absolutely, I think a victory for, you know, free speech on the internet. This is another one of those, you know, we've, we've continued to talk. Like, you know, while there's all of this discussion about, you know, does inviting ex-professor to speak in Y Hall constantly, like, we have real free speech issues

[0:28:19] that are going on here. At the highest damn level. I think, yeah, I think at the core of that would be, can the government start combing through records simply because you visited a website? And look, like, there are real world consequences to that. Like, as I've described in this, I didn't want to click on the damn website, right?

[0:28:37] Like, I do. This is a news show. We do in-depth, long-form journalism. I believe we serve the public. I take that very, very seriously. And I was chilled into fully researching. Yeah, because I didn't want to show up on the list. And so good on DreamHost for resisting this. So now it is not certain that the last press release from DreamHost was a

[0:29:04] week ago, a little more than a week ago now, August 24th. And they said, we might appeal this rule, or we might comply with it. We're not sure. And as far as I know, it seems likely to me that they're going to comply with the rule. The main victory was getting out the request for the visitor's information. The additional protections that were on it, like I said, there's going to be an in-camera inspection. In addition to the in-camera inspection, it also, the judge's order requires the government to seal any information that is acquired as part of the warrant but deemed not responsive to that specific criminal investigation that I just read for you.

Right. So any information that they get that does not relate to the violent riot protest and vandalism, they have to seal that. They can't use that to search for other criminal activity. And that really is significant because one of the things that is still sort of up in the air, this is I'm deviating a little from the dream host here, but I want to talk about this as a general principle. One of the things that the police can

[0:30:13] do when they have a search warrant and they're searching physical space is they can say, we have reason to believe, right? Like, you run into your house

[0:30:25] with, you know, you're observed by a police officer fleeing the scene of a murder, right? And they think you've run into the house with the murder weapon. Right. Right. And they post officers front and back of the house, and they're observing you while somebody runs to a judge to get a

[0:30:45] search warrant, right? That's probable cause. Oh, he wouldn't be able to just barge in? You can't if there are not exigent circumstances. I just would have thought that would be. So if they think you're about to stab somebody in the house, yes. Oh, let's say it's an empty house. So they run, they get a search warrant, and then you execute the search warrant and you say, I am searching for any evidence instrumentality of a crime associated with the murder that just occurred down the street. And so

[0:31:11] then they can look through your house, but there is another principle at play, which is called the plain evidence rule. So they come into the house, they can overturn the house, right? They can look through everything in your safe, under your bed, in your, you know,

[0:31:29] Between your sheets, they can knock down the walls to try and find the knife that was used at the murder. But suppose you also have a portable meth lab sitting on the table in the basement. Sure, as I do. I mean, don't. Yes. Well, that is called the plain view doctrine, right? Which is to say the meth lab is in plain view and the government is- In plain view once you are already executing the warrant, you're saying?

Because it's not in plain view of- Yeah, but if the meth lab is hidden in the wall, then they cannot use, I'm going to put an asterisk around "cannot" because there are a bunch of exceptions that undermine that, but but the- the general principle of a search warrant is that a search warrant has to describe with particularity the persons and places to be seized and the crime to which they respond, right? So I can break down the wall looking for the murder weapon. And if the search warrant says I'm authorized to look for and find the murder weapon, I break down the wall and I find drug money and the meth lab hidden in the wall, then I can't, again, asterisk, I can't use that evidence because that's not what the search warrant

[0:32:38] empowered me to look for. Okay. Does that make sense? I just want, all I was asking about was the plain view of where you already are from the warrant, not like plain view of the, you know, the street or something. Yes, yes, yes, that's right. Right. And so, yeah, if you're in with the warrant and then you look down and see the meth lab on the table, that's where plain view comes in. You're right to make that distinction. It's going to be beyond the scope of this particular

[0:33:03] episode. But as you might imagine, there are a number of cases involving the plain view doctrine that involve common space in dorm rooms or, you know, one room is rented out and I give consent for the police to come into this room, but you never gave consent. I look forward to failing

0:33:21 Thomas: These questions on the bar exam. Yeah.

[0:33:24] Well, you know, look, they're, they're, they're complicated. Yeah. They're complicated situations for bar exam purposes. If you want to

0:33:31 Andrew: Interpret them in the light, most favorable to the police, being able to search through stuff that will probably get you 85% of the way there said, you know, sad to say, but, and that, and that also is the asterisk around the, they can't use the meth lab found in the wall because there is a huge exception to the doctrine, which a huge set of interlocking exceptions. We've talked about as long as

[0:33:56] the police officers are acting in good faith and as long as they can show inevitable discovery, they could come back and say, oh, yeah, well, like eventually we would have also gotten a warrant to find out that this guy Is a drug dealer. And then we would have come back and searched the same way. And oh, look, we would have done the same search and we would have found the meth lab in the wall. And pretty much every court is going to allow the police to then charge you with the drug crime for finding the meth lab in the wall too. So, you know, it's a bit of a, it's a bit of a paper protection, but, but it's worth going through that to understand the operative principle. So, so that's plain view doctrine. Now ask yourself what constitutes plain view when you're talking about electronic records,

[0:34:40] right? And that's really, I think, what was at the heart of the DreamHost's refusal to turn over the information in the first place regarding visitors to the site. Now, look, obviously, there's a business decision related to that, too. And good on them. I would use DreamHost for hosting

[0:35:00] after doing this. I believe they should be rewarded for being civically responsible, and they should be rewarded in a business sense. But in addition to all of that, you have the question of what can the government do? They're in the equivalent of rooting through the house, right? But the house is an intangible web server maintained by a web hosting company,

[0:35:25] and the data they've asked for is millions and millions. Yeah, right. Exactly. So could the government have compiled all that data and stuck it in a database and then started sifting through it and looking to see, okay, what's in, quote, plain view? What does this show? Because I believe when you go from one website to another, that it shows the last site that you've been to. So, you know, if you went to disruptj20.org and your previous website was, you know, an illegal website, you know, could they then claim that that was evidence quote, in plain view, right? I don't know that That would be a fairly novel theory, but it doesn't strike me as implausible. And once an investigation begins, it's really difficult to stop. Stop. So the fact that that scope was narrowed and that all of the data collection stuff is going to be marked and then sealed is, I think, the court's way of responding back to that argument and saying, hey, look, we're not going to let this turn into a

[0:36:36] massive data collection and fishing expedition. And good on the court and good on DreamHost. So we don't always do happy happy ending stories here, but this has, as far as I can tell, a pretty happy ending. That's good, but I mean, there's still, I guess, the question

0:36:48 Thomas: Of will anyone be prosecuted, you know, for this riot, which, I mean, I guess if people started a riot, then they deserve to be prosecuted, but how, how far is that going to extend, you know,

[0:37:00] like, I, I don't know, I don't know, but I want to, I mean, look, like, just because I oppose Donald Trump, like, I want

0:37:06 Andrew: To reverse that. If right-wing sites had said, we want you to show up and disrupt the inauguration of Hillary Clinton, and those people showing up had used violence, had committed vandalism, yeah, yeah, like

[0:37:19] that, I think I agree. Say, yeah, maybe, maybe not. So I'm, wow, gosh, I don't, I didn't, I didn't want to come down on, on in favor of the Department of Justice, but I think I am. Well, not, no, yeah, but, but of course, uh, the heavily modified version of the request. Yeah. Well, yeah, right, look, we still have to be vigilant, but, uh, all right, well, thanks for taking us through that because people have got to know whether or not their president's a crook.

So you're not aware of any context during the course of the election. How many times you have to answer this question? Can you just, 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.

[0:38:02] Andrew, we're back at Yodel Mountain. Ah, smell the crisp Yodel Mountain air, the cool, uh, biting breeze of Yodel Mountain. Yeah, I feel like we've been climbing, way, yeah, what's the elevation on Yodel now? It's got to be, there's only so much mountain, right? Hopefully. So I'll try to read this. I feel like we've been yodeling for a while. I'll try to read this question. It's a little complex, but Carl Kitt

0:38:27 Thomas: Asks, say you have three people, A, B, and C. Persons A and B have a proven relationship, and persons B and C have a proven relationship. If person A has publicly made statements that he thinks person B should commit a crime, and persons B and C meet to discuss things that may be related to that crime, and person and C actually does commit the crime, are all three guilty of conspiracy even though A never meets C?

[0:38:51] Yeah, and Carl obviously is asking this question on Yodel Mountain in the context of, uh, we're all here on Yodel Mountain. We know that, what this is about, this is, there's no, this isn't, we know there's more to it than this. We're standing atop Yodel

[0:39:04] Mountain. Person A's name may rhyme with Modeled Mom. And the, the answer to this is, is really straightforward.

0:39:10 Andrew: Yes, that's still conspiracy. Right. So what conspiracy requires is that all of the members of the conspiracy share the common intent of the conspiracy to commit the crime. OK. But not that each individual mutually agrees with each other individual. And in fact, the two most common – I talked to a prosecutor friend of mine for this. The two most common kinds of conspiracies are what he described to me as wheel conspiracies and chain conspiracies, right? And this is obviously an audio medium. But a wheel conspiracy, you think about the wheel has a ringleader who is the central hub and then little spokes going out to all of the co-conspirators, right? Like, this is often how we suspect that the mob works. Right, like the mob boss is the ringleader, and then there are all of his agents, and they may

[0:40:08] But they all know the mob boss, and they're all working in concert, right? So you could imagine there, A is the ringleader of the conspiracy, B and C are two hubs, B might not necessarily know C, but as long as they both know A, all three can share the requisite intent on the conspiracy. Conspiracy. Another type of conspiracy that is fairly common, even in the organized crime context, is the chain conspiracy, which is, again, exactly what it sounds. So A tells some things to B, who tells some things to C, who tells some things to D, and so on, right? And this is very often the case when you have people who are trying to get as much distance as possible from

[0:40:51] the actual hitman at the end of the chain or whatever. You don't want your hands dirty, so the mafia boss tells the underling, hey, go tell so-and-so to handle this problem. And then B tells C, hey, you need to get your best guy on this work because, you know, this is a real problem and Mr. A is not happy about it. And then C goes out and

[0:41:16] hires the actual hitman, or, you know, plumber, or, you know, whatever. Never, uh, A may never know D, uh, but A, B, C, and D are all part of the same conspiracy. They all share the same intent, uh, and remember that, uh, what you have to have, uh, for a conspiracy is you have to have, uh, agreement among all the members, and then you have to have one overt act in furtherance of the conspiracy, but it doesn't have to be the ultimate act.

[0:41:47] Right, like, so in other words, if if you and I plan in a conspiracy to break into a bank, and we say, yeah, we're going to have to hire, like, you and I both picked out the bank that has the weakest security, but,

[0:42:00] you know, I'm a lawyer, you're an accountant, we're both podcasters, neither of us have bank safe-cracking skills, so we're going to have to go hire a safe-cracker. And I say, Thomas, go hire a safe. I don't even want to know who he is. Go hire a safe cracker.

[0:42:12] And you go out and hire the safecracker. Or you go out and you go onto the deep web and post a search for, hey, anybody have safecracking skills? Write to openargumentsatgmail.com. But sadly, your communication is intercepted for reasons that we discussed on the previous show, and the federal government shows up with a warrant. Your act of writing that post, right, your

[0:42:37] act of soliciting the safecracker on the deep web is probably sufficient to count as an overt act in furtherance of the conspiracy, right? In other words, you don't have to actually hire the safecracker, and he doesn't

[0:42:50] actually have to crack the safe for all of us to be killed. But then what's your – how are you implicated in that? I'm implicated because I agreed with you that we should do that, right? So we are all equally responsible. It gets better or worse depending on your view of the law. Suppose we hire the safecracker, and the safecracker goes into the bank, and despite the fact that it's three in the morning, and we've cased the joint a lot, and we realized there was never going to be anybody there, happens to be a security guard who came back, left his cell phone at his desk. So he comes back two hours later, and the safecracker sees the security guard come back into the building, hides behind the wall. When the security guard comes back in, our safecracker jumps him from behind and kills him,

[0:43:33] okay? Now we're all guilty of felony murder, you and I, because that was within the foreseeable scope of the conspiracy because burglary is a crime

[0:43:45] of violence. We sent a safecracker there. Is there any way to hedge against that? Just hypothetically, if I'm going to be a criminal,

0:43:51 Thomas: What if you like draw up a conspiracy charter and you're like, Okay, we are doing this conspiracy, but we have no, we absolutely don't want anyone to die, we all agree that we're just trying to steal some money, uh, no violence, and then, you know, something goes wrong, can you protect, protect yourself against the liability.

[0:44:10] You cannot contract around the liability. If you have engaged

0:44:16 Andrew: In a violent crime, you are responsible for the reasonably foreseeable consequences of that crime, which case law is abundantly clear because lots of people have thought of stuff like this, right? It is abundantly

[0:44:29] clear that unrelated violence is a foreseeable consequence of a violent crime. There are cases involving third-party witnesses have a heart attack. And again, the court's like, look, it's a burglary. People die in a burglary. And the defendants were like, well, but they didn't die in the burglary. They died because they had a heart attack watching my guy commit the burglary. And the courts are like, yep, too bad. So no, you can't do that. But what you can do, there is an interesting doctrine in conspiracy law called renunciation. So the conspiracy starts, goes into effect. You get scared and you go running to the

[0:45:13] police and everybody you can find, go, I renounced this conspiracy, I didn't want to be a part of it, nobody told me that we're going to be killing anybody. Um, and under some circumstances, renunciation is an affirmative defense that says

[0:45:25] you didn't actually agree to the, I could imagine, like, if somebody calls an Uber

0:45:31 Thomas: To, like, you know, drive away from the crime, I mean, that maybe that person would be like, I had no idea what was going on, you know, that kind of thing, are there times when it's like you can make a defense that you really didn't

[0:45:44] mean to be part of this conspiracy. Yeah, but what you have to do is your renunciation has to take part before the crime takes place, right, uh, you know, before the, the, the, uh, the actual incident, uh, takes place, and this is the key part, uh, to a renunciation defense.

0:46:02 Andrew: You have to try and thwart the success of the conspiracy, right? In other words,

[0:46:08] it's not sufficient for you to just, like, I just envisioned the Willy Wonka. No, don't stop, please. Right, exactly. Yeah. So you can't like write in a journal like, I really, I renounce this conspiracy in all of its wicked ways. No, you have to completely renounce the conspiracy, and you have to do something to undermine, to thwart the success of the conspiracy. And usually what that means is going

[0:46:35] to law enforcement while the conspiracy is still taking place. Yeah, they don't require you to be like a vigilante. No, but you do have to do something that shows that you've withdrawn and hindered the conspiracy in some way.

[0:46:48] And yeah, so that's none of this applies to Trump, but it is interesting just for, like yeah, no, no, you know, you were, we were exploring, so I thought it was worth, definitely worth going, but we're here on Yodel Mountain, Andrew. We are sitting atop, or

0:47:01 Thomas: Somewhere in the indeterminable peak of Yodel Mountain. What's going on with the Russia?

[0:47:07] So the - so the argument was, if Donald Trump doesn't know that Donald Trump Jr. is meeting with the Russians, can nevertheless Donald Trump be guilty of conspiracy to violate the U.S. election laws? And the answer is, absolutely,

0:47:26 Andrew: If they are all part of the common conspiracy to violate the U.S. - which is to facilitate Donald Trump receiving information through subordinates from a foreign government that influences our elections. And they all share that common purpose. And there is at least one overt act, which, to wit, Russians meeting with Donald Trump, then yes, Donald Trump can be responsible, even if Donald Trump doesn't know that the Russians exist. And even if Donald Trump

[0:47:57] never meets with the Russians. So long way to get to that point. I think it was worth going through because we've, you know, we had a couple of questions relating to the thing of value in the elections. There can be some - there can be some trickiness when we're talking about, you know, establishing chains here, and there's - and look, there is some surface plausibility of, well, hey, look, like, if you know, you're gonna have to prove that, you know, Donald Trump knew that his son went to meet with the - right? No, no, you're not gonna have to prove that. All you're gonna have to prove is that there was a common

[0:48:27] purpose and at least one overdact wow all right well so it's over we We caught him. It's done, right? Yodel-ay-dee-yoo. Oh, man.

0:48:36 Thomas: Someday, someday, there could be consequences for anything, but not yet. You might think, right? Let me just ask you this. Straight up, man-to-man, Yodel Mountain, we're here, we're standing here. How many impeachable things, just ballpark me, do you think that we really have? Like, if there was a - it just, the platonic ideal of a, like, objective Congress, just - just hypothetically, like, just assume we've got a bunch of just the most objective, rational Congress people in there. Do you think, Andrew, that Trump has committed several impeachable offenses, or are

[0:49:14] we not quite there yet? We don't know enough yet. I mean, I think probably yes. But I would encourage sort

0:49:21 Andrew: Of caution, because not because I think the answer is going to be zero, but because I think following the Mueller investigation is very, very likely to tell us things that are not even on the public radar at this point. Right. So something that was working, a little bit of a current news item, that Mueller has been cooperating with New York's Attorney General Eric Schneiderman, a Democrat, very anti-Trump Democrat, that news came about, which, you know, again, I think is - is

[0:49:52] really, really encouraging from the standpoint of, you know, those of us who, you know, have the naive view that that in the long run, the system does tend to work. Right.

0:50:05 Andrew: Like, you know, I continue to keep coming back to that. I know that it's frustrating that in all these situations,

[0:50:11] you know, the answer is, yeah, you got to impeach. And Paul Ryan is a jellyfish. But ultimately, like, I do have have faith in our justice system. And I think you see you see some of that. And so the way I would answer the

[0:50:23] question is, remember that all of this stems from something Donald Trump did in his first week in office, right? Like, I mean, we are talking about – and something that was not high on my list of things that I'm worried about Donald Trump doing. I mean, remember the first, you know, couple of episodes that we did post inauguration, you know, our focus was much more

[0:50:48] on the emoluments side, right? If you were to ask me in December, what do I think Donald Trump will be impeached for? My answer would be bribery, Emoluments, corrupt foreign contributions to his business enterprises, not trying to fix the US elections. Right, like, that just wasn't, uh, it wasn't on my radar.

[0:51:14] The fact that you know, he, he pulled Kobe into his office and had The like, "I'm gonna need your absolute loyalty, son" conversation is, uh

[0:51:27] Yeah, I mean, look, that was week one, so, you know, we're, we're what, 25 weeks in? And what happened in weeks two through 25? Like, it, I think we're a lot more than that, aren't we? The time is, it's not likely to me that, you know, we're further along, there aren't we, isn't it's been we're almost in the ninth month of this year. Yeah, well, January 20th, so that's, I guess that's eight months in office, so That's 32 weeks, so, but yeah, 30, 33 weeks, something like that. Yeah. So, so again, is it

[0:51:58] Is it possible that, you know, we, we just had the bad luck that he committed his one bad thing on the first week? I suppose there's likely a lot more to come, we just need unfortunately, we have to wait for I would think, I mean, like, there's there's no reporting on, I mean, we saw the emoluments lawsuits, but, like, I, I mean, we know that the facts on the ground are that foreign governments are funneling money at overpriced rates into Trump's properties. Right, we know that Mar-a-Lago, you know, what did they double? Yeah, their fees, triple their fees, whatever. And they were already six figures. The things that we consider like sort of now garden variety corruption, because they are compared to letting the Russians influence our elections, makes letting the Russians bribe our president seem sort of quaint by comparison. But oftentimes, it's the financial cases that wind up being easier to prove just because

[0:53:02] we have – there are transaction records. Records, uh, so, you know that's that's where my gut says is that, I think, I think there is going to be, uh, financial records

[0:53:14] that, uh, but of course, ultimately, are the vital part of my hypothetical was a rational, objective Congress, which, who knows if we'll ever get. So we'll see. Get out, rock the vote again, get out and vote in 2018, and do not like, seriously, we will come to your homes individually and punch you in the face when your preferred candidate

[0:53:34] loses in the primary and and you're like, "I don't know if it's worth turning out for this corporatist." It's worth turning out to not have a Republican Congress. Remember that. Tell your friends, punch them in the face if they disagree.

[0:53:46] Not literal. Don't take punching advice for this podcast. All right. Well, there you have it. And now it's

0:53:52 Thomas: Time for our favorite part. And boy, since we missed a week, we've got a lot of people to thank. We've got a lot of, you know, as they say, good problem to have, but we've got a lot of new patrons to

[0:54:05] thank today, and I hope you enjoy that's the bonus Law'd Awful Movies,, we even, I think we forgot to plug it a lot of movies should be out as we speak. A lot of movies, number 10, The Chamber, an amazing

[0:54:17] oh, oh man, it's bad, it's, it's a bad movie. This causes me to remember when we began the Law'd Awful Movies project, I said, I think the phone is the the wrong, you were, all the time, how wrong that was. It is not even the worst John Grisham movie. So that, that is a true statement. Yeah, we watched The Chamber, it is

0:54:41 Andrew: Truly Law'd Awful. It marks the triumphant return of Sam to Laud Awful Movies. We had a great time, you should listen to it. And we would love to have a patron list this large to read next week, so don't, don't rest on your laurels, man. That if these people can throw us a buck, you

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0:57:49 Thomas: All right, Andrew, I'm, you know, I'm, I'm contractually obligated to still have a positive attitude about TTTTBE, but I don't, I didn't feel very good about this question. I don't know if it's, if it's the newborn or what, but I just, I didn't

[0:58:01] quite do the issue spotting, I don't think. So, or did I? Or did I? We'll find out the answer to last week's TTTTBE. Be yeah, and I, I really wanted to to reach out and help you because the, the, the thing that you missed on the issue spotting, which is not to say you got the answer wrong, the thing that you missed on the issue spotting is that the statement is here. Yeah, that's what I thought. Yeah, so the prosecutor called a witness to testify that the defendant told that witness, "I am looking forward to visiting the child in his luxurious home that I'm going to be staying in." Right, so when the witness testifies

0:58:39 Andrew: As to that, he's testifying as to hearsay. So that's what makes it ordinarily inadmissible. And then you're looking for the reasons why you might otherwise admit that. So then the defense objects to it. Will the court sustain that objection? You eliminated A and D. So let's start with, first you eliminated D. "Yes, the statement is irrelevant to the issue of guilt or innocence." Really good elimination there, um, you know, no question about that, the statement is obviously relevant. Uh And, as you pointed out, the answers, and again I think it's, you know, to avoid, you know, sort of having an ambiguous set of answers, which I'm not sure why they would do that because the bar has a ton of ambiguous answers all the time, I think they left out, "Yes, because the statement is hearsay," uh which in my view would have been a really really good attractive distractor. So good elimination on D. You also eliminated A. "No, the statement is admissible to impeach the accused and establish he is lying on cross if

[0:59:41] he takes the stand. That's also a good elimination for reasons I think I lucked into that one, probably. Uh, that leaves B and C. Uh, the C answer was yes, the prejudice of the statement will greatly outweigh its probative value. You didn't go go with that one. You went with B instead, and nice job, you got the answer correct. I know there's a little bit bit of a circuitous way to get there. I feel like this is- You're getting some karmic payback. Yeah, that's true. I I deserved a lucky one because I really analyzed it. Okay, I want to hear about that. I can't wait to hear you explain this one. So this is- this is governed by, uh, Federal Rule of Evidence 801D. Okay, which we have addressed before. This

[1:00:27] is exceptions to the hearsay, and and D2A and B define an opposing party's out-of-court statement as non-hearsay. Impeachment is allowed for material issues of the case, and everything that was described there is obviously material to the case. So the statement then becomes non-hearsay because the perpetrator

[1:00:52] said it, so it's a party admission. Yeah, okay. Okay? Okay. So the reason why B is correct is B includes all of A, right? That you could use it to impeach, but he doesn't have to take the stand. Yeah. So if he doesn't take the stand, then this is the best evidence for it, isn't it? That's exactly right. Out of court statements by a party are admissible if the statements are are being offered against the party who made them. Yeah, okay.

[1:01:24] That is a federal rule of evidence, 801D2A. And so you got to the right result. I think you analyzed a lot of things correctly in there. It was just sort of within

[1:01:36] - I think you're right that- That analysis should have took place within the- It didn't, I thought it was like a hearsay thing. I think I mentioned that too. I was like, it

1:01:42 Thomas: Seems like a hearsay thing, but normally the answers give you some indication, like, oh, no, it's hearsay, or no, it's not hearsay. But they kind of pulled one out, you know, they try to pull a fast one by talking more about

[1:01:55] impeachment, and I guess it also was related to that, though, right? Or yeah, I don't I don't view this as an impeachment. That's why I was a little confused. You're not. And I also was a little confused as to like, do I know whether or not he's taking the stand, you know, like, I thought if he takes the stand, then it, you know, well, but if he takes the stand, it's still fine because it's used to

[1:02:14] try to contradict what he's saying, so I guess either way it would have been fine. So, so yeah, I think that was, you know, 50% analysis, 50% dumb luck, you know, something like that. Maybe, maybe either way. Hey, every, every standardized test has some component of that. So I am glad to see you get credit for it. Wow, seven in a row. And yeah, that's an improbable streak. Thanks. So I can't, no, no, no, no, I don't mean just for you, I mean for anybody, seven in a row. What's my total now? Now your total is 22 of 39, that is 56 percent. Yeah, rocketing towards D

[1:02:54] -minus. Barreling down. Yeah, uh, that's cool. Well, future Andrew, I'm excited for this one, because this was a confusing one, and people might have been thrown off by my obviously intentional, you know, attempt to to uh persuade people to choose a different answer. Future Andrew, who was our our lucky winner this

[1:03:15] week? This is Optimist Andrew, filling in for Future Andrew. I needed to step in and choose a winner that would boost Thomas' ego to prevent the darkest timeline from continuing. The winner and wrong person this week was Eric Brewer, who went with D, because it's interesting to hear what the witness has to say, but I don't see what it has to do with whether or not the defendant kidnapped anybody. Irrelevant. Yes, Eric. Irrelevant indeed. Back to you, Thomas.

1:03:50 Thomas: Well, that does it for today's episode. Thank you so much to The Bar Exam for somehow being good to me

[1:03:56] this week.

1:03:57 Thomas: Thank you for listening. Thank you for pledging, most of all, and thank you, Andrew, for taking us through that. Here we stand on Yodel Mountain. I think, I feel like someone could write a poem about that someday. Day and I can

[1:04:09] do no other. All right, see you guys on Friday. Stop breaking the law. 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

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