OA103: We Defend Trump, Part 2!

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 Withdrawn.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 Withdrawn.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 Withdrawn.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] Hey, this is a quick update on our efforts to support hurricane relief. Irma has made landfall in Florida. It is slamming the West Coast. It is scheduled to go straight through the city where my parents live, which is Fort Myers. My parents are safe. They have evacuated to Alabama, but we know we also have listeners who are in the path of the storm. Please continue to let us know that you've made it to safety. So, another little thing that Thomas and I decided to do to try and help over the weekend is that we are donating a bunch of Opening Arguments t-shirts to [0:01:57] anyone who supports hurricane relief. You can find the details of that on the Opening Arguments Facebook page. The link is pinned to the top

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0:03:02 Thomas: To Opening Arguments. This is episode 103. I'm your host, Opening Thomas. That over there is Andrew

[0:03:08] Torres. How are you doing? I'm great, Thomas. How are you? Doing well.

0:03:12 Thomas: Excited for today's episode. I cannot wait to find out if I managed to get that streak, continue my bar exam streak. I don't think I did. I'm having regrets. I feel like maybe I should have chosen the other answer, but I'll be in suspense for like an hour here. Here. But other than that, we've got some great questions. We've got a question about Trump's agenda and whether or not there's anything we agree with or any good accomplishments that he's had. We've got the Kevin Folta lawsuit. Kevin Folta is someone I've talked to on my show, Serious Inquiries Only. He's a scientist and GMO advocate, as we really all should be. And I don't know the details of this lawsuit, so I'm excited to learn about it from Andrew. Andrew.

0:03:52 Thomas: And finally, we'll be talking about the budget and debt ceiling deal. I think that really easily could have been on Friday's episode as sort of a newsworthy topic. But as you heard, Friday's episode was already jam-packed

[0:04:04] with a bunch of very newsworthy topics. So sometimes the goodness has to be delayed to the next episode because there's too much good stuff to fit into one episode. So that's our agenda for today. How

[0:04:18] about it, Andrew? Let's get to it. All right. He who questions training only trains himself at asking questions.

[0:04:26] What?

0:04:27 Thomas: Okay. David Cartwright asks, as a British expat living in China, I may have, I have noted a subtle antagonism toward Mr. Trump.

[0:04:39] A classic, classic British understatement there. My question is, is there any legislation, no matter how small, that has been carried out by his administration? So the answer is no already there, right? Because there's, I mean, maybe you'll tell me, but I don't

[0:04:55] know of any legislation that he's really done, which you would support. This is because across the world's media, I've not heard any real positive comments about Mr. Trump's administration. And I'm hoping behind the hype, there are actually some reasonable policies being carried out, which have not been reported because they're not controversial. Perhaps he's going to outlaw the practice of ear docking and declawing of pets.

0:05:19 Thomas: Yeah. I still don't think there's been any actual legislation, right? There's been any bills that we don't know about. And certainly even if there have, they have not been by Trump. Like Trump hasn't done anything. It's been, if there is anything, it will be because Congress was kind of going on its own. Trump hasn't done any

[0:05:37] kind of good job at all of working with Congress, to my knowledge. What do you think? So yeah, I love this

0:05:43 Andrew: Question for a whole lot lot of reasons, and whenever we get the opportunity, however oblique, to uh, to defend

[0:05:49] Trump, uh, I want to take it. There are, I'm going to link in the show notes, this is just a link to whitehouse.gov. There have been 54 bills that uh have been signed into law since President Trump has taken office. Okay. He, uh, President Trump made a uh, a much publicized comment a couple weeks ago that, that he'd signed more legislation than any president in history in the first six months, which is, you know, as it's more preposterous than the,

[0:06:20] I had the largest inauguration crowds claim. I mean, it's just such a crazy thing to say. Yeah. And, and yeah. You don't think people could check that, dummy? Like, come on. Yeah. You know, I don't think it matters.

0:06:32 Andrew: But, you know, look, we want to avoid falling into the liberal trap of saying that nothing is getting done. Things are getting done at roughly the pace that they were under the Obama and George W. Bush administrations. So I looked through each and every one of these 54 bills that have been signed into law because that's

[0:06:58] just what I do for our listeners. A lot of them are of the form of bills that passed unanimously with consent, right? So again, a good example of that is there was a bill that was authored

[0:07:11] by Republican Congressman James Sensenbrenner from Wisconsin that provides for local law enforcement agencies to use rapid DNA check, right? Right. And then that passed on a voice vote in the House without opposition, you know, with with unanimous

[0:07:30] Consent. Right. So, you know, there have been, there have been bills to rename, you know, X Highway in favor of, you know, this disabled veteran. Right. So, so things that would pass any administration at any time on a bipartisan basis, because, you know, if you had a robot or like

0:07:48 Thomas: The Simpsons joke, a brick tied to a pin, I guess. Yeah, exactly. The Simpsons, Homer is replaced by a brick that's just tied to a lever.

[0:08:00] There's another episode in which he's replaced by the bird that drinks the water that pecks the keyboard. I like that one. Yeah. And, of course, the joke we used in our show graphic when we discussed the Rod Rosenstein memo,

0:08:12 Andrew: The in Rod we trust of inanimate carbon rod.

[0:08:17] But, yeah, so you exclude all of those. And then we do have some actual substantive stuff. So let's get out of the way because I'm going to end with an area where I think liberals have treated Trump unfairly. So that's the best that I can do and an overall thing that I support.

0:08:42 Andrew: But before we get there, I want to point out that of those 54 bills, 13 are joint resolutions of disapproval. And the reason that they have gotten through is because we discussed this on Opening Arguments episode number 61 when we went into the history of the Congressional Review Act, little known, little used until now tool from the Newt Gingrich Contract with America era of the late 90s that allows the Senate to avoid a filibuster on a straight majority vote and disapprove of agency findings within the last six months. And there have been 13 of those that have legislatively overturned administrative findings. So when you want to talk about things the Trump administration is doing, I think we actually have planned in the works an episode that I am tentatively tongue-in-cheek entitling, you know, The Case for Re-electing Donald Trump. But that talks about – look, we say elections

[0:09:44] have consequences. This election did have consequences and those consequences were If you disagree with many of these policies, the things we see being enacted not just through the promulgation of executive orders, which can be undone in much the same way that Donald Trump has undone a number of Obama's executive orders. But also it's sort of a one-way ratchet of the use of this Congressional Review Act to legislatively undo agency presumptions, which then you can't just turn around and have the agency reissue those original findings, because that faces the issue that we talked about with respect to DACA in last Friday's episode number 102, which is agencies can only make findings that

[0:10:35] are consistent with the authority that has been delegated to them by congress so once Congress says you don't have the authority to do X, the agency can't come back and say, no, yes, we do, because it's, it's now established as a matter of law that that you don't. And so that's something that that can't be undone without legislation. And And so, not just without replacing the president, but getting a filibuster-proof 60-vote majority of Democrats in the United States Senate, or, as I suspect will happen in 2021, having the Democrats blow up the filibuster, which I don't think is smart political strategy. We can talk about this once Elizabeth Warren is elected in November of 2020, but I think ultimately that's probably where we're headed. All of that as prologue. Here's something that I think has been Donald Trump has been unfairly maligned. And this is Senate Bill 442, which is the 2017 budget for NASA. And

[0:11:38] if you Google Trump budget NASA, you will get a ton of stories. And basically the narrative is Donald Trump's NASA budget eliminates the education office, reduces the budget as it applies to climate change. The ones that are that try their their best to sort of have a semblance of bipartisanship, will concede that Trump's budget increases funds for space exploration, but will immediately add the caveat of more money for exploration,

[0:12:16] but less money for the aspects of NASA that govern climate change. And that fits in with our narrative of Donald Trump. His base right now is entirely non-college educated white male evangelical Christians with, right, like, that's it, right, that's those are the people that support him. And those people overwhelmingly tend to believe that climate change is a myth and or that the earth is 6,000 years old and that, uh, you know, Jesus is coming back immediately. And so it doesn't matter what happened, right? Like, it fits into our very comfortable narrative. I'm here to tell you, the budget that was signed into law by President Trump is 19.5 billion dollar budget for NASA. That exceeds the 2016 budget by $200 million, and it exceeds the last Obama-NASA requested budget by $1 billion. Obama requested $18.5 billion in his final budget, which it's the most that's ever been allocated to NASA. And there are nine key areas in which NASA receives funds for space exploration, operations, science, aeronautics, space technology, education, safety, security, mission services, construction, environmental compliance, and for the inspector general, which is a $37.4

[0:13:38] million charge. It's barely a rounding error. Of those nine areas, the Trump-NASA budget is a 7.4% increase, $300 million increase in space exploration and a $90 million decrease to the general science fund from 5.589. So $5,589 ,400,000 to $5,500,000,000 even. That's a 1.6% decrease. Every other category was left the same with the exception of the education budget, which was increased from $37 million to $115 million, which is to say by $80 million. So almost entirely the exact amount that was cut from the science category was increased into education. And then $300 million was put into space exploration. So it is certainly, this is not a budget I would expect, a NASA budget I would expect from a President Pence. So our listener David Cartwright asked, is there anything legislatively that Donald Trump has accomplished that I agree with? Yeah, I agree with this NASA budget. I think it is a better budget than we would have gotten from other Republican candidates. It's better than we would have gotten from most of the Republican candidates and certainly from Vice President Pence. And it's one that I

[0:15:07] think, despite the fact that liberals should be on board with it, has been unfairly characterized in the press. So with that in mind, I need to go pour myself an enormous glass of scotch to

[0:15:19] Get the pro-Trump taste out of my mouth. But you asked for it. There it is. Wow, yeah, so is that and I guess it is fair to call that legislative because they yeah, all right, all right, fair enough. It's a it's an actual bill signed into law, originated in the Senate. Fair enough, so he's done okay on NASA.

0:15:38 Thomas: There you have it that's it though that's pretty much

[0:15:41] Yeah, that's pretty much it. So more subtle antagonism, I'm sure, coming uh Trump's way.

0:15:53 Thomas: All right, Andrew, Kevin Folta. Yeah, what's going on with this lawsuit? I saw something about this. I didn't get a chance to look into it yet. I know the guy gets harassed a lot by different groups who are against GMOs, and they accuses him often of just being like a Monsanto paid voice, that kind of thing. What's going

[0:16:12] on with Kevin Folta? Yeah. And so first, I would recommend the episode of Serious Inquiries

0:16:18 Andrew: Only, in which you had Kevin Folta on as a guest. I think it's safe to say you and I are in sort of general agreement with Kevin Folta's public pronouncements, which is to say that that much of the public debate over GMOs is misleading and non-scientific and is an example of kind of hysteria on the left. This is shaping

[0:16:43] up to be a theme of this episode of us going after Democrats, right? Yeah, this one's somewhat bipartisan though, but yeah, it definitely exists on the left. So he has filed a lawsuit against the New York Times for calling him a Paige Schill of Monsanto. And as we're going to link the lawsuit in the show notes, as always, we're going to read the lawsuit the way I have taught all Opening Arguments listeners to read a lawsuit, which is first scroll down to the signature line. The signature line is James J. Evangelista of Bush Ross from Tampa, Florida. Bush Ross is a 45-person law firm in Florida that is a full service law firm with a good reputation. James Evangelista is the managing partner of that firm. So you look at his bio, his picture doesn't really match up with somebody who got a J.D. in 1985.

[0:17:43] He looks like he's about 42 years old in that picture, and he should probably be in his late 60s. It's all that genetic modification. It could be.

0:17:52 Andrew: Now, Mr. Evangelista that does not have practice. He does not list among his practice defamation, but he has a wide ranging civil trial practice. His honors

[0:18:05] are the kinds of things you'll see in some ways a little better than some of the awards that I've received if you were to get onto my website. But Super Lawyer by Florida Super Lawyers, AV rated by Martindale Hubble, Best Lawyers in America for for the past 12 years,

[0:18:25] requisite affiliations. This is a competent lawyer at minimum. Yeah, this doesn't sound like Lionel Hutz to me. Yeah, not a crank. But look, when you talk about a defamation lawsuit, and that's what this is, that's the first thing you look. Is it being brought by competent lawyers? Well, because we've seen a lot of bad examples of specifically defamation lawsuits in the show. And to sort of take the mystery out of this, I don't think this lawsuit has a high level of success for the reasons that we're going to say, but it's not one of these that I think you immediately look at and go, crank or nuisance lawsuit.

Then you scroll up to the causes of action. We're going to dismiss out the second cause of action right away, because that is a cause of action for intentional infliction of emotional distress. Thomas, as I think you recall, one of the threshold elements for an IED claim is that the conduct has to be extreme and outrageous. I know of zero cases in which publishing an article, yeah, has been held to be extreme and outrageous conduct. I cannot imagine that a court will, yeah, so find. You know, IED,

[0:19:36] intentional infliction of emotional distress, those kinds of claims, those are, you know, you you had a sample bar question about it, was like a gruesome, you know, the victim hiding under the bed while the perpetrator murdered her family, right? Like that's the kind of thing that that's extreme and outrageous conduct. Writing an article about somebody, yeah, yeah.

[0:19:54] So, but are we going to talk about the article? Because I'm I, it's weird to me that the New York Times would have done this.

0:20:01 Andrew: Yep. And we're going to talk about each and every one of the allegations because that leaves the first cause of action, which is styled as defamation and false light. False light is an invasion of privacy claim, and it is only available to private figures, right? And so false light, we've talked about this in a previous episode. False light is what happens when you say true things about somebody that nevertheless

[0:20:29] paints them in a false light. I don't think that's appropriate here because for purposes of debate over GMOs, Kevin Fulta is a limited purpose public figure. He's not a public figure in the way Beyonce is, but when it comes to the GMO debate, he's clearly a public figure. So now we're talking about defamation under the New York Times versus Sullivan Standard. That's what's left out of this lawsuit. Let's

[0:20:53] go through the allegations from this complaint. Now we go back to the facts. And so starting with – and before we get into the facts, I would encourage all of our listeners to read the lawsuit because we have talked about the question of temperament in filing a lawsuit before, in filing legal pleadings. And this is an example of where I think

[0:21:19] the temperament and editorialization is not helpful. If you read this, you will see language being employed that is very similar to the kind of language that, quite frankly, we laughed about and made fun of in the Ann Coulter lawsuit. So there are discussions of how the New York Times is creating, quote, an anti-GMO platform. So I'm going to read just a couple paragraphs. This is page five of the complaint, starting at paragraph 25, 26. The defendants ignored the anti-GMO platform, subjectively advanced by these defendants in this article, in spite of being well aware that the organic food industry was actively funding particular research and paying academic scientists' salaries to further their own marketing goals. 26. These anti-GMO activists began submitting FOIA requests for emails from over 40 scientists working in biotechnology at public universities whose research did not support the organic industry's goal, fear of GMOs, in hopes of finding some semblance of the same organic industry-funded research. Defendants latched onto this group and obtained the materials from these FOIA requests

[0:22:21] as part of the article at issue in this lawsuit. That is, I could read 50 paragraphs that have that similar sort of tone of the New York Times as part of this anti-GMO conspiracy. I

[0:22:34] don't think that's helpful. It's not, it certainly is not. How I would have, yeah, let me ask you this, why would that

0:22:40 Thomas: Do, are they not allowed to do that? Like, I mean, I, I don't know that they are, like, regardless of that, I don't, is it a tort to to be anti-GMO as a newspaper or what, what

[0:22:53] am I? No. No, no. I mean, the whole thing, in my view, we talked

0:22:59 Andrew: About the ACLU of West Virginia's amicus brief as the greatest sarcastic legal brief ever written. And the reason that that was the greatest sarcastic legal brief ever written is because regardless of where you are politically, regardless of where you come out on the case, as you read

[0:23:18] it, you can't help but go, yeah, no, that, that, they're right on that too. And those are the cases, the very, very rare cases where that level of sarcasm can work, where it is indisputable that this particular argument is correct. So for example, it's indisputable that making somebody sad as a result of – making a public figure sad as a result of your coverage of that public figure is not actionable and is

[0:23:49] in fact a core First Amendment protection, right? So making fun of Bob because he's asked for damages in a case where not only you can't ask for – but the First Amendment core protection, both left, right and center, everybody agrees, is public commentary and ridicule of public figures, right? Right. That's a good time for the use of the sarcasm. Talking about the New York Times being part of an anti

[0:24:14] -GMO agenda, you know, it's just, it's, that's not, it's not analogous. Right. And, and you run the risk, right. You run the risk of a judge who is anti -GMO, right. Like, like there's a reason that's a political position that has been co-opted because, because lots of people are sympathetic to that sort of core argument. Right. Like I thought when Kevin Fulton was on your show, you did a very good job in your interview with him of sort of teasing out the like, well, what's the harm of just labeling? Right. Like shouldn't consumers get to know whether they are eating something that has genetically modified organisms in it? Right. And that's not an intuitive position. And so starting with the position of ridicule, again, why I wouldn't do it. This relates to a single September 6th, 2015 New York Times article and note the date on that.

0:25:07 Andrew: We have talked about the statute of limitations previously. This is a clear example of this. This was filed September 1st, 2017. So it was filed five days before the statute of limitations was set to expire. Buyer, this is not a new article, this is two-year-old. Now again, that in no way should be construed against Kevin Folta, in in context of the logic you've got two years and he's within the time limit. But part of the background and

[0:25:37] and so the first set of allegations talk about the characterization says headlines, bylines, and photographs, talks about how Kevin is pictured with a bunch of science-y stuff around him in his photo. And then he's displayed opposite the anti-GMO advocate, Charles Benbrook, who's shown outside, you know, with kind of the rugged outdoors behind him. And the quote attributed to Benbrook is, "If you spend enough time with skunks, you start to smell like one." And the quote attributed to Folta is, "Nobody tells me what to say and nobody tells me what to think." The description of Kevin Fulta is an aggressive biotech proponent with financial ties to Monsanto. The description of Benbrook is a proponent of label on GMO foods backed by the organic industry. So there's certainly, all of that is, if the charge is that the New York Times article is slanted with respect to its coverage of GMO proponents like Kevin Fulta versus anti-GMO advocates like Charles Benbrook, they've proven their case. But as you point out, that's not a tort. The New York Times having an editorial slant is not a tort. That's not

[0:26:54] a tort. So there are pages and pages. There's a new Crocodile Dundee that's just, that's not a tort. This is a nice, nice, oh, we have some cartoonists, yeah, in our listenership, I would love a, "That's not a tort, this is a tort," perhaps, you know, Crocodile Dundee, Thomas's, Thomas's Crocodile Dundee with a giant knife stabbing through a piece of paper and then a tiny little cake off to the side, you know, "That's not a tort, this is a tort." So that's, that's my Australian accent, people, this is why, this is, I don't know if it was better or worse than mine, I actually have no idea, might have been better, who knows, we'll let the audience decide.

[0:27:34] So there are six pages of the setup and the backdrop, and, you know, and things like the difference in language, which at

[0:27:46] the end of the day is not relevant to a defamation lawsuit, which you could consider, then we finally get to the a section labeled malicious and defamatory falsehoods. That's section C, beginning at paragraph number 52 on page 10. So I'm not kidding when I say there's a whole lot of setup. The false statements are, allegedly false statements are, begin with paragraph 52. What the article says is, it begins by quoting a Monsanto executive. It says, quote, this is a great third-party approach to developing the advocacy that we've been looking to develop. Michael Lohius, director of crop biometrics at Monsanto, wrote last year in an email as the company considered giving Dr. Folta an unrestricted grant.

[0:28:30] Now, the lawsuit then says there's no such thing as an unrestricted grant. And this is paragraph 56. Dr. Folta has never received an unrestricted grant, and these defendants misrepresented what an unrestricted grant is. These defendants knew that the supposed unrestricted grant to Dr. Folta was in fact an unrestricted gift in italics to the university, also in italics, meaning that the funds provided to the university go into a fund to support the training of scientists and students in science. These defendants knew that Dr. Folta is incapable of receiving an unrestricted grant. In fact, there is no such thing as an unrestricted grant. Paragraphs 56 to 58. So now, so that's

[0:29:09] the statement and the argument. As a judge looking at this, I would say the distinction between if the facts are that Monsanto gave an unrestricted grant to the university at which Dr. Fultz teaches, and Dr. Fultz has access to university funds, which he does, characterizing that the way they did in that sentence, in my view, is not a demonstrably false statement, right? As the company considered giving Dr. Fulta an

[0:29:40] unrestricted grant. If the article had said Monsanto has given X million dollars to Kevin Fulta, that would be a factual statement that is apparently false. But that characterization, I don't know. And in fact, I think there's sort of an own goal here if you look at paragraph 61, which says that the defendants spun a, quote, unrestricted gift, which means that it goes to the university foundation and has no expected deliverables, and changed the wording to unrestricted grant to Dr. Folta to maliciously imply that there was a bottomless pit of funds with

[0:30:19] which to bribe Dr. Folta to do Monsanto's bidding. Again, I'll go back to the tone, but leave aside the tone of bottomless pit of funds. That characterization may not be accurate. But remember, we are talking about New York Times standard of knowing falsity or reckless disregard for the truth. And to say, hey, look, we got awfully close to the truth here. We described an unrestricted grant to the school at which he practices, which has no conditions on it, as considering an unrestricted grant to the professor himself. That's pretty close. So that is the first.

Oh, I should add, there's an additional claim regarding the sentence in the article that says, in August 2014, Monsanto decided to approve Dr. Fulta's grant for $25,000 to allow him to travel more extensively to give talks on the genetically modified food industry's products. And then they say, Dr. Fulta did not give talks on the genetically modified food industry's products. He teaches scientists and students about how the technology works, its strengths, limitations, risks, benefits, and the public evidence. And again, I would say, I think that's a fair characterization. If you listen to Kevin Fulta, and again, I agree with him, you agree with him, right? If you listen to what Kevin Fulta said on your show, I learned about the food industry, the genetically modified food industry's products, right? Like he was talking about which fruits and vegetables are genetically

0:31:46 Andrew: Modified and how they're modified. So I think that's

[0:31:49] An accurate statement. Yeah, so that's kind of statement number one. Statement number two criticizes, I'm not going to read the statement because, uh, it, this is paragraph 74, you can go read it for yourself.

0:32:01 Andrew: It says, the defendants clearly imply that Dr. Folta's research is slanted, inaccurate and otherwise suspect.

[0:32:07] And again, I would say that's not actionable. Yeah, implying that someone's research is suspect or slanted is precisely the kind of protected opinion for which you can't sue for defamation.

[0:32:20] Right, if, if, if it were not, then every story the, the New York Times has done on on climate change denialists would, would, would be actionable, right? Like, you have to be able to say, yeah, like these guys, right, like Bjorn Lomborg puts together research and And that research is slanted, biased, and ridiculous. And that's a key part of the argument against the false equivalency

[0:32:45] of climate change denialists versus legitimate climate change scientists is that you have pseudoscientists on the other end. Again, in Lomborg's case, people who are paid by the energy industry to put out fake research to compete with the real research, that you have to be able to protect

[0:33:03] that as protected opinion. The third allegation is that Monsanto paid for Dr. Folta's travel to support its agenda. But again, the actual statement isn't quite as black and white. What the article says is, by the middle of 2014, Dr. Folta and Monsanto had taken steps to formalize their relationship with Dr. Folta planning a trip at the company's expense to its headquarters and the company considering a grant to Dr. Folta for helping to promote GMO technologies. Technologies. Again, that doesn't say there was a quid pro quo. It says in 2014, they were starting to get closer together. Folta was planning a trip and the company was planning to give him some money. That's not the same as saying he did take the trip. Yeah.

0:33:46 Thomas: Weirdly, they're mischaracterizing the New York Times more than the New York Times is mischaracterizing

[0:33:53] what's actually happening. It seems like this is, I'm very surprised to hear all this. Yeah. Argument Number four is

0:33:59 Andrew: That defendants falsely claim that Dr. Fulta has motivations to defend Monsanto. I'm not going to go through it because, again, speculating as to somebody's motivations, again, is sort of clear opinion, right? Like it cannot be – like by definition when I say I think your motivation for doing opening arguments is to

[0:34:18] get Democrats elected to office, right? Yeah. You know, you can speculate as much as you want. Like that's by definition opinion. Yep. And then the last argument is that they said that Dr. Folta lobbied for the industry and

[0:34:37] they say he is not a lobbyist. But again, what the New York Times said was, Dr. Folta, email show. And there were email conversations. Part of Dr. Folta's argument here and part of the reason he's angry is because he conducted an extensive email discussion with the reporter who wrote the story. And he feels like his emails were taken out of context and then they wrote a hit piece on him. That's all true. His emails were taken out of context and the New York Times wrote a hit piece on him. It is unfortunately part and parcel of being in the public eye that

[0:35:14] unfriendly news outlets will. Yeah, I mean, this is, if, you know, this is the same thing we get

0:35:20 Thomas: Mad at trump for doing you know like saying ah they're out to get me they're unfair they're unfair it's like well

[0:35:26] that's kind of journalism in a way. Here's the quoted allegation, right, this is quoted in the body of the complaint, right, this

0:35:32 Andrew: Is not, you know, it's not hard to piece back and forth. Dr. Folta, the email show, this is again quoting from the New York Times article, soon became part of an inner circle of industry consultants, lobbyists, and executives who devised strategy on how to block state efforts to mandate GMO labeling and most recently on how to get Congress to pass legislation that would preempt any state from taking such a step. And what they say is, Dr. Folta has never, quote, devised strategy to block state efforts. And again, I think that is an unreasonably narrow interpretation of what that sentence means. Because I think it's fair to characterize when Kevin Folta came on your show and said, you asked him a question that was kind of like, look, there's a lot of this hysteria about anti-GMA, like what can we do, and the kinds of things that he said is that they quote in the article, he said, we can't fight emotion with lists of scientists. Dr. Folta wrote to Lisa Drake, the Monsanto lobbyist, it needs a connection to farming mothers.

[0:36:29] End quote. And that's consistent with the kinds of things he said on your show, right? Like, Like it, it is, it is not the article, in my view, the New York Times article does not accuse him of being a formal lobbyist. It accuses

[0:36:41] him of small L lobbying, the kind of lobbying that you and I do on the show, right?

0:36:47 Andrew: We talk about how to motivate people, how to change the dialogue, how to get people involved. And I don't think that's fairly characterizable

[0:36:54] as a, as, as liable. So, well, I, yeah, this is really sad. I, I don't mean to say when I said earlier,

0:37:00 Thomas: I don't mean to say Kevin Fulta is equal to Donald Trump or anything. I think there are some ways that the New York Times is getting things wrong here. I don't mean to say they're 100% right, but I

[0:37:13] just, man, this lawsuit does not seem like it has a leg to stand on at all. I want to go a step further and

0:37:19 Andrew: Say, I agree with the thrust of the allegations made in this lawsuit, right?

[0:37:25] I think the New York Times did a hit piece on Kevin Fulta. I think if you and I and Kevin Fulta sat down and had a couple of beers, like I think, you know, I enjoyed his appearance on your show. I think we need to do more to have voices like his that are active in the larger political community. I understand why

[0:37:44] He's mad. Yeah, definitely. But but I, but I don't think this is actionable defamation, and and I wouldn't want it to be. Yeah, right. I would be just as mad in his shoes. But but if I were his lawyer, I, I, I don't think I would have advised him to to file this. Yeah, all right, well, thanks for covering that. Interesting stuff. I wonder if, yeah, I don't know, I wonder if I should try to reach out to him again, because this is a

0:38:08 Thomas: Weird thing sometimes uh opening arguments we we have to cover lawsuits that don't end up being good, and this isn't a good lawsuit, but there you go. You have to call it like you see it.

[0:38:21] Down. Down.

[0:38:24] Down. Down. All right, Andrew, breaking down the law. What happened with this budget and debt ceiling deal? I've seen headlines that Trump kind of worked with Democrats on this one. The great dealmaker Trump, I saw one tweet that said this is the first deal he's made thus far and nine months into his presidency, which is weird for a dealmaker. But is that a fair characterization? What's going on here? Yeah, it's

[0:38:51] a pretty fair characterization. So let's talk about what this is and what it means

0:38:57 Andrew: And why. As it turns out, you hear debt limit of the United States.

[0:39:04] And I don't know what the average person thinks of that, but I sort of envisioned kind of of Byzantine interconnectedness of a whole bunch of different rules and regulations

[0:39:16] and policies that came up with this sort of arcane... Nope. As it turns out... I was going to say, you're smarter than me because I thought it would just be like someone came up with a number and was like, all right, no more than that. Well, this is a case where had we been betting in advance, you would have won and I wouldn't have won, because as it turns out... Sometimes you got to think like a simpleton, uh, congressperson, is that, as it turns out, there's...

There's a law, it's 31 USC Section 3101, uh, called Public Debt Limit, and what that was, it is a, it is a three paragraph section, right, that says Section A, in this section, the current redemption value of an obligation issued on a discount basis and redeemable before maturity at the option of its holder is deemed to be the face amount of the obligation. That's just an accounting thing, which you could probably explain better than I could. The bulk of the regulation is in B, which says the face amount of obligations issued under this chapter and the face amount of obligations whose principle and interest are guaranteed by the United States government, except guaranteed obligations held by the Secretary of the Treasury, which refers to Social Security Fund, may not be more than $14,294,000,000 outstanding at one time, subject to changes periodically made

0:40:30 Andrew: In that amount as provided by law through the congressional budget process described herein, or the rules of the House of the Representatives have provided by Section 3101A, or otherwise. So it literally

[0:40:40] is just a number. Yeah, and just quickly, I mean, I'm sure most people could figure this out, but it did, the face

0:40:46 Thomas: Value thing that you said, I could explain. That's a a finance thing that's pretty common. You have the face value of of a bond or whatever, and and it's, it might, the market value might change, but the face value is always going to be the face value. That's how much they issued, uh, that's how how much money they got for that bond at the time. So it's just saying that's the the basis they're using to come up with the total limit. They're not gonna, it's not like subject to market fluctuation. So, like, if the if the actual, like, market value of the U.S. debt goes down

[0:41:16] it's that we're not going to be able to borrow more because of that, I think, is is what I'm making out from that. That is exactly right, and that

0:41:22 Andrew: Is a much pithier explanation than I would have given, so that's why I was, I was happy to defer to, uh, to your expertise on that one. I think, I think you did a great job explaining that. Implied in your statement is another fact that folks might not realize, which is – there are really two relevant facts here to the law, which is that 75% of the United States national debt is held by – is held domestically by US citizens through government bonds

[0:41:53] and other instruments, okay? Okay. Only 25% is foreign debt borrowed from other countries, and 3101 and the debt ceiling is only about domestic debt. Oh, really? It is not about the foreign component, right? That, that $14 trillion number is a number that applies only that, that only covers the domestic component. Wow. I had

0:42:18 Thomas: No idea. What is the point of that? So that, so that's got to be a reason, unless I'm totally wrong, why, you know, China is just buying up all our, because, so I would imagine then we're, we're increasing our ratio

[0:42:31] there of foreign debt to uh domestic right it is increasing but within any one administration

0:42:37 Andrew: The the notion that it's not growing at the rate that you, okay, that you might expect or that you implied with that question. And most importantly, all of the, the rhetoric that you hear politically on this is about the debt ceiling and is immediately tied to China owns the United States. It doesn't, in no way apply. This is strictly – this is an area where, God help me for saying this, where the Ron Paul wing of the Republican Party has it right. The debt ceiling is entirely about the operation of the United States Federal Reserve System and our, to borrow their phrase, fiat money system. Again, I don't

[0:43:18] agree with the Ron Paul wing. Politically, we talked in episode 101 about their absolute lunacy on the Interstate Compact Act, but they're the only ones on the right correctly describing the application of the debt ceiling. Why is the debt ceiling important? The debt ceiling is important because when you – well, the debt ceiling is important first from a constitutional perspective. So let's go all the way back to Article 1, Section 8 of the Constitution. That enumerates the powers that are reserved to Congress with – that are coterminous with the founding of this country. It says the Congress shall have the power

[0:44:03] to borrow money on United States. So only Congress can do this. And prior to 2013, and again, I want to state this very, very carefully. If you are a Ron Paul libertarian, you might say it was a great thing that in 2013, for the very first time, the Republican Party decided that they were not going to agree to routine increases of the debt ceiling. You're free to hold that belief politically, but the predicate fact to holding that political belief is prior to 2013, this was routine. It was done by both parties, regardless of which party was in charge of the Congress and which party was in charge of the presidency. It was done throughout the George W. Bush presidency, Throughout Bill Clinton's presidency, this was as bipartisan as bipartisan gets in 2013 for

[0:45:05] the first time ever. And it's kind of interesting that Obama has a lot of these statements that begin for the first time, isn't it? But for the first time ever in 2013, the congressional Republicans said, we're not going to vote. We're not going to pass this routine vote to increase the debt ceiling. We are only going to vote

[0:45:23] to increase the debt ceiling if it is accompanied by spending cuts. So they were trying to leverage that to get what they want. Exactly. And Democrats did not give in. And as a result, for the first time ever, the failure to increase the debt ceiling, which was reached on December 31st of 2012,

[0:45:48] resulted in the United States credit rating being downgraded. It truly had tremendous ramifications for the United States. And the significance of the United States credit rating being downgraded affects the U.S. ability to borrow from international banks. So that's

[0:46:07] a really, really objectively bad thing. Again, whether you think if you're a small government libertarian or not, you nevertheless, when the government borrows money, you don't want the government to have to borrow under financially worse conditions, right? You might say, I want us to borrow less money, and that's a valid political argument, but nobody says, I want us to pay more interest or have to incur worse conditions to borrow that money. And so there was a congressional fight, which largely resulted in the Republicans backing down, but has resulted in us not, and by us, I mean the country, not passing a budget since then. So you can say the Democrats, quote, "won"

[0:46:58] that fight, but they lost the war in the sense that we've now moved into an era in which the president no longer proposes and has a chance of getting omnibus budgets passed

[0:47:10] anymore. That's the legal background. If the debt ceiling is not raised, the Treasury Department has some, a very, very tiny amount of wiggle room to engage in what they call extraordinary measures. And that's what the Treasury Department did on January 1st of 2013 during the last debt ceiling crisis. But once that's over, and that is a really, I mean, no one fully knows what the outside limits are of that wiggle room, but it's clear it's just a small amount, right? Then we get to the point where we have a constitutional crisis. We have the only authority to borrow money for the country under the Constitution. It's 100% clear. Every lawyer on earth would agree on this is Congress. Nobody else can do that. And then the government will. We'll start defaulting on its debt payments and we'll start defaulting on international and domestic payments, which I can't tell you what the consequences of that would be because catastrophic doesn't begin to cover it, right? Like it would mean, I mean, obviously it would mean that government employees no longer

[0:48:25] get paid. It would mean that government services shut down immediately. It would mean – but it would also mean that the government is defaulting on its loan obligations. So,

[0:48:38] you know, how – could there be international claims where foreign banks get a foreign judgment of default against the United States? I don't

[0:48:51] even know, right? Because no sane person would put us there, right? So this is truly – and again, I say that from all sides. This is truly kind of the mutually assured destruction of the Cold War. Or obviously since – and that was the theory was since no sane person would cause a nuclear war, if we threaten nuclear war, then mutually assured destruction will assure that we don't actually get there. That same sort of reasoning is what made increasing the debt ceiling a

[0:49:29] routine matter up until 2013. All of that in the background, the debt ceiling was set to expire again this year. And what Donald Trump did that has many, many Republicans angry and that has led to the description of Trump as a dealmaker and led to a press conference in which Donald Trump referred to Chuck and Nancy, meaning Senator

[0:49:58] Chuck Schumer and Democratic Congresswoman Nancy Pelosi. Was reached a deal largely with the support of Democrats, well, entirely with the support of Democrats, and obviously with with the appropriate

[0:50:10] number of Republicans that, uh, that Donald Trump could, could strong arm to increase the debt ceiling for three months. Okay. Previous agreements have increased it for several years. And

[0:50:23] the political takeaway is, uh, what this does is funds the government of, you know, avoids the catastrophe until December, when it reopens the debate again, and

[0:50:36] just kicks the can down the road. Yeah, but but you might want to ask yourself, why wouldn't you want to kick the can down the road in debt for a couple of years? And and the answer is, uh, because Democrats think that this would be a politically viable issue for them if you think about where we're going to be in mid-December of this year, that is gearing up for the 2018 midterm elections. That's when primary campaigns start in earnest in potentially contested

[0:51:07] districts. And so the notion here is that if Trump had just agreed to a two-year debt debt ceiling increase, it would have taken this notion of fighting back and forth over the ability of the government to reach an agreement off the table entirely. It would not have been an issue for the midterm elections. Now

[0:51:33] it's going to be an issue again. Why is that significant? Because there have been multiple times in our nation's recent history where the the Republicans have engineered a shutdown of the government, not related to failure to increase the debt ceiling, but in

[0:51:52] other ways. And in both of those cases, that period of time was disastrous for you can, you can look at, you can plot the maps on Gallup approval ratings, the average person, Democrat, Republican, or other, otherwise immediately hates is angry about, and tanks their their reaction of the party that they think is responsible for shutting down the government. And so my, my political read on the situation, again, I'm a lawyer, I'm not a political scientist, but my political read on the situation is that Democrats think that that they can either force Republicans to compromise, at which point they will present themselves as, look, we're the ones standing up to the Republicans getting stuff done, or kind of force

[0:52:43] Republicans who have this sort of very hard right libertarian constituencies to face a hard vote leading into the 2018 primaries, right? So if you are a Paul Ryan, for example, who you've got to balance two constituencies, you've got to balance your core supporters who think that you are a principled small market conservative who does not want to increase the debt ceiling, and Paul Ryan has made statements to that effect, versus your constituents who think of you as an effective speaker and somebody who gets stuff done, who is going to increase the debt ceiling in order to make sure catastrophic stuff doesn't happen. And Paul Ryan has of course made statements to that effect, right? So he's, he's got to walk that tightrope, and by signing, uh, only a three-month extension, it means, it means we're going to face this fight again in December, and it's something that that Democrats think that they're going to use for political advantage. So

0:53:45 Thomas: There you go. You made it sound like Democrats, like, were the reason they just didn't extend it indefinitely. Or, or do we know the

[0:53:55] details of that meeting, of that agreement? I mean, we we do not. Those were closed door meetings. What we know we know it could have been Trump thinking that was like the thing. It certainly could have been. What leads people to suspect that it was not is that in

0:54:14 Andrew: Every, you know, in the 2013 battle, for example, Democrats wanted a lengthier

[0:54:20] extent. They wanted as, as much of an extension as, as you could. And in fact, it was why I went through the history. Democrats were objecting to the politicization of the

[0:54:32] debt ceiling issue, right? They pointed out, hey, look, we have routinely increased the debt limit throughout our nation's history. And this is the first time it's been, you know, you've, quote, you know, you Republicans have, quote, held the nation hostage and, quote, by refusing to vote

[0:54:51] this, you know, routine procedural issue. Um, so, you know, again, that's what I'm saying, I thought

0:54:57 Thomas: So hold on, I've maybe I misunderstood I thought you were saying Democrats kept it at three

[0:55:04] months so that they could use it as an issue again in three months. Isn't that what you said? Yeah, yeah. And I'm saying that that represents a reversal of what was asked for. As evidence for that claim, you just said that they did the opposite in the past, so I wasn't sure how that was supporting that. Yeah, because what we so, so what

0:55:22 Andrew: We know is that Democrats went into that negotiation asking for three months and came out of it with

[0:55:28] three months. Oh, we do know that. Okay. So something, yeah. So, because of public statements by Chuck Schumer. Okay. So something changed between 2013 and 2017. Yeah.

[0:55:41] And the most obvious thing that changed is, yeah, yeah, the inhabitant of the White House. So, you know, if this is another area, maybe the theme for this episode is, you know, sort of, you know, calling

[0:55:53] out calling out Democrats. If you were outraged over politicizing the debt, the debt limit in in 2013 you should take a hard look at yeah well the only reason I I was wondering,

0:56:06 Thomas: For sure, is because it does fit Trump's pattern. He keeps doing this with everything. Well, DACA, you know, we'll look at it again in six months. And, you know, like the Muslim ban, we just need 120 days to figure it out. Like he consistently does this as some sort of half measure or some way of making it I don't know why he does it all the time. So I wouldn't have been surprised if it was something Trump engineered as a way to kind of look like he he wasn't fully giving in to Democrats. But if you think the evidence is sufficient to show that it's

0:56:36 Andrew: Democrats. I will say it is – it was very clear. You can find and I will try and find an article and link it in the show notes, incredibly negative statements by Paul

[0:56:49] Ryan and Mitch McConnell about the deal. The Republicans said even McConnell, to whatever extent you want to consider him a dealmaker, basically took the position of, hey, if you're going to cut a deal, at least cut a multiple-year deal, right? Don't cut a three-month deal and

[0:57:09] force us to go through this and litigate it again. Because we now know that litigating the debt ceiling is something that Republicans thought would be politically in their advantage in 2013, and it was not. And it turned out not to be the case. So

0:57:28 Thomas: That's sort of the basis. So then the reason they haven't just done it because they control Congress, right? Or is this a 60-voter thing, or is this a – well, you'd get Democrats anyway, wouldn't you? So the reason

[0:57:40] they haven't done it is because of the far, far right, the Tea Party-er kind of people? Okay. Correct. And again,

0:57:47 Andrew: It's a weird amalgamation, right? Like, I don't want to say that the Ron Paul

[0:57:53] libertarians fall under the Tea Party rubric, right? Yeah, that's true. Yeah so there's some like uh, there's some Tea Party members that I feel like they overlap with the the libertarian factor, because the faction, because they're, they're almost anarchists, right? Like, they're yeah, they're sort of opposed to everything the government does. You

[0:58:12] know oftentimes for reasons that can't be articulated right okay but yeah so maybe

0:58:18 Thomas: Possibly, uh, sounds like Democrats playing political games with the debt ceilings. Not, not the greatest thing. Yep. And

0:58:25 Andrew: And you could come back and say, you know, you could make utilitarian arguments. You can say, you know, we got to do whatever it takes to win the 2018 midterms or whatever. But again, you know, we want to call

[0:58:37] things out, you know, like we see them. And I think that is absolutely my takeaway. Somebody wants to dispute that, write in or post about it on the Opening Arguments Facebook community page. But I think the case is pretty clear. Yeah. All right. Well, there you have it. Thanks for breaking that down. And it's time for

0:58:56 Thomas: Our co-favorite day of the week. That is new patron Tuesday, new patron Tuesday. And of course these are new patrons from, you know, the past week. This wasn't, uh, because we we instructed people to donate to hurricane and slash super storm relief, so, uh, these are before

[0:59:14] that but but they're new patrons and thank you for the pledges nonetheless yeah thank you to ReddBombur To cecilia tacchi, PolarAtheist, Dennis, Scott Schlaefli,

0:59:27 Andrew: Ryan Jackson, Erica Schiff, bleftbart.

[0:59:32] I think that's a pun on Breitbart. And Taylor Hempel.

0:59:38 Thomas: Thank you, Katarina Jovanov, Jeff Miller, Brent Rensink, Kaitlynn Pecha, and Melissa Butler. Thank you guys so much. And reminder, we're not going to shill this particular week. Donate to Hurricane Relief if you're feeling like you have a few bucks to spare.

[0:59:57] Definitely a good cause. It's really needed right now. Uh, we'll be back to shilling soon. Oh, very, very soon. Thanks for the support, everybody. Oh, no associate this firm has ever failed the bar exam. No kidding. And now it's time for my co-favorite it's still gonna be my favorite because I'm over 50 percent uh day of the week this was a tough

[1:00:22] bar question, Andrew. Yeah, I, I thought this was a tough bar question, and and I want to admit something which

1:00:29 Andrew: Is so I, I want to admit a couple of things, right? Well, there's only one thing that's an admission. I think you know where that's coming

[1:00:35] let's let's walk through this. Okay, this is a question about a judicial instruction as to presumption. So the trial judge instructed the jury that the law presumes that a person intends the ordinary consequences of his voluntary acts. That is a

[1:00:54] correct statement of the law? Okay, so the predicate question is I feel like I got this one wrong. Had to do with whether or not somebody who was on a a two-day drinking binge had the requisite level of intent for depraved heart murder. And so first and foremost, Thomas's second chance law firm, you eliminated, so A, B, C, D, you eliminated B, which was yes, because the wording in effect caused the defendant to be a witness against himself by having him intend everything that he did. You correctly spotted that as nonsense, right? Right? That is utterly unrelated to the issues. You pretty much called it out as that. And this is, I think, the first time that there's been something where, you know, I as a lawyer have looked at the answers and

[1:01:45] been like, well, B is just a garble of words that don't have anything to do, right? And the fact that, but to know that, right, requires knowledge of the underlying legal vocabulary.

1:01:58 Andrew: And you had that, which was awesome. It was a great elimination, not a correct answer, nonsense answer. You also eliminated D, which was no, because the instruction was only a presumption that the jury did not have to consider in its deliberations. That's a nonsense answer for a different reason. A presumption is something that the jury must consider. And what makes something a presumption, we've talked about rebuttable versus irrebuttable

[1:02:23] presumptions in the past. So this is an incorrect statement of the law. So good eliminations. Okay. Well, Thomas' last chance bar exam, second chance bar exam is always just so reliable. That left A and C. One yes answer. Yes, the court will reverse the conviction because the instruction was inappropriate.

1:02:44 Andrew: Or C, no, because the defendant could raise an argument to rebut the permissible inference created by the

[1:02:50] Jury instruction. And I have to concede that's the answer I would have gone with if I were taking the bar exam. As I read through, I was certain that that was the answer. That C was the answer? Answer, but that C was the answer you chose. A, and A is in fact the correct answer. No way! I want to- so, so not only did you get it right, but you got it right, uh, above my counsel, or or my would have been counseled, uh, and I want to, I want to read the- yeah, what, I am blown away. Yeah, I really thought it, it was C on considering it. Okay, let's hear this. So did I?

[1:03:30] So the answer says this presumption conflicts with the overriding presumption of innocence with which the law endows the accused, and which extends to every element of the crime. The state cannot create intent through a presumption and thus take away the prosecution's need to prove the intent element. The prosecution would be relieved of proving affirmatively the guilt of the defendant beyond a reasonable doubt. There is- was no way to tell if the jurors were swayed by the instruction. With no way to know if the finding of intent was an independent one, the verdict is tainted and must be reversed. See Sandstrom versus Montana, 442 U.S. 510.

[1:04:05] Wow. Wow.

1:04:06 Thomas: Well, that's the problem. See, I know the case law and you just, I mean, it's not your fault, but you just didn't happen to know this case law. So, you know, that's why I got it right. And you got it wrong. Just study up, buddy. You'll, you'll be, you'll be doing as well as I am on this bar exam soon enough.

[1:04:23] Um, and Sandstrom versus Montana, 1979 opinion, uh, that uh, involved an instruction, uh, that the law presumes that the person intends the ordinary consequences of his voluntary acts. Um, and uh, it's the exact fact

1:04:42 Andrew: Pattern that was asked by the question required you to know the Sandstrom versus Montana decision

[1:04:48] which I certainly did not know off the top of my head. Hey, you know, we can't all be uh legal experts. I am- I am, oh my gosh, great job. I really, really think that this should make this your favorite segment. Oh yeah. I need

1:05:08 Thomas: To quit. I need to retire. I'm never going- this is, this is the- I mean, it's when Michael Jordan should have retired after one of the game-winning shots he made, and then, you know, played a few years and sucked. I- I really, I- I I'm

[1:05:21] done. I gotta quit. I gotta- somebody take over for me. I was gonna try and make a hockey analogy. I realized I don't know enough about hockey to, uh, yeah, let's see, did anybody retire at the- tafter did- Dread now, hockey's a little, a little different, but uh, yeah, I- wow. The only thing I will say is, and I don't remember if I said this or not, but the thing I was thinking was I did think, like, well- well, if that were true, intent would be in every case, like you would, you know, like by that definition. And the weird part is, the part that I got wrong was, you're saying this is a good legal assumption, a presumption, I guess. You're saying that is valid. But my thinking, because I didn't know that, my thinking was, well, if that sort of takes out the intent question from every single crime, because like, yeah, everybody, unless- unless they're acting under a mind ray, you know, like they intend their voluntary actions. So that was the only reason I sort of went toward A.

[1:06:17] Well, and and and let me be clear, it is a correct assessment of the law, right, which is to say if I- if I get drunk and then while I'm drunk I do

1:06:29 Andrew: Something horrible, the law- it is not a defense to that crime that I didn't specifically intend the crime, because as a matter of law I specifically, specifically intended to

[1:06:42] get drunk, and then when I was drunk I did the crime. Yeah, so, and the case law is abundantly clear on that. It's one of the things that that is really drilled into you, I think, because lawyers have such a high incidence of

[1:06:54] alcoholism. Yeah, I'm 100% sincere on that, like lawyers have one of the highest alcoholism rates of any profession, uh, accountants are way up there too. So, but not podcast- yeah, I was gonna say podcasters probably blow them out of the water.

1:07:09 Thomas: They don't have the stats on that yet, but once they do, it will be a whole new bar chart.

[1:07:15] So it is a correct description of the law, but the argument here was that by phrasing it as a presumption that

1:07:22 Andrew: Conflicted with your right as a defendant to put the prosecution to its burden of proving each and every element of the crime beyond a reasonable doubt. And we have previously talked about on the show how beyond a reasonable doubt itself is not susceptible to a particularly precise mechanical

[1:07:41] analysis. Analysis. Yeah, it did seem like, honestly, I was not sure at all. And I kind of thought I got C. Yeah, I think I thought it was C after the fact. But I have to say that is kind of what I was thinking. Like it does, it did seem weird

1:07:53 Thomas: That the judge would say something, and then the, you know, it would sort of take the trial away from the jury in a way. They'd be like, oh, okay, well, intent is definitely there because he voluntarily did whatever. And I- I don't know. That was why I went with it. And I really got lucky. And slash, you know, it turns out I'm the real legal mind behind the show. As we see week in, week out. I think you are, yeah. When Andrew explains everything to me the entire show. Oh, wow. That is unbelievable. I really did not expect. This improbable win streak just got impossible. This is the most improbable win streak

[1:08:30] of all time. What is my score now? So, Thomas, you are on an eight-question win streak. And you are now 23 out of 40, which is 57 and a half percent. Oh, my God. Top of my class. Top five. Yeah. I'm not the top 5%. I'm the top five of my class. Top five at Hartford Law School. Great work. Unbelievable. I've got nothing else to say. It was a hard. Andrew was wrong, everyone. You deserve.

1:08:55 Andrew: Yeah. We could have played that segment. Yeah. You deserve. It's why I started off with you analyze the question correctly. You got rid of the two garbage answers.

[1:09:05] Uh, and uh and and you got it right, great work. Hey, you know, and how's that, there's been a little bit of a down episode, a little bit of a beating up on Democrats episodes, so let's all go out on a hike. Yeah, yeah, Democrat-

1:09:17 Thomas: Thomas Smith got the bar question right. No, uh, yeah, so, uh, amazing, uh, thanks for everyone who played, we've got to throw it over to future Andrew, whose time machine, I'm told, is now functional. He's got the, uh, yeah, got all the ingredients he needed. Future Andrew, who is our winner. It- I'm going to be amazed if someone else is as brilliant as I am and got this right, uh, but who's our big winner this week? Yeah, and

1:09:42 Andrew: I am going to have tremendous amounts of fun picking the winner, uh, so if patrons, if you're getting this episode a little early, you're also going to love the uh the patron-only post, uh, where you get the answer early. Oh yeah, definitely. Uh,

[1:09:55] it's going to be fun. Awesome. Well, Thomas, lots of people played along this week, and reflecting the difficulty of of the question, there were lots of different answers. The only one I didn't see from anyone was B, which was another good elimination.

[1:10:07] Of the A answers, a lot of people just guessed A to try and piggyback onto your coattails. I didn't see anyone kind of work through the issue as well as you did. A lot of folks guessed C along with me. So I'm going to pick from the the best of the A answers. Uh Arch Stanton, that's at it's Arch Stanton, I-T-S-A-R-C-H-S-T-A-N-T-O-N, on Twitter, who says, I'm

[1:10:33] going with A because it's the end of the first week of school and I can't focus on anything. Uh, good enough reason, we talked about gambler's fallacy, we talk about riding Thomas's hot streak, uh, so Arch is the winner this week.

[1:10:45] Everybody should give him a follow on Twitter at it's Arch Stanton. Thanks to everyone for playing. All right, well, that's

1:10:51 Thomas: Our show for for today. Man, I am just, I'm on top of the world right now. I really, I need

[1:10:57] to retire. I really do. I can't, there's no, I'm never beating this. Only 160 more questions to go.

[1:11:06] There'll be plenty of opportunity for me to come off the scene in the movie where, you know, the protagonist is climbing

1:11:12 Andrew: Like K2, and he gets to the little peak and plants his flag, and then the- the camera zooms out and you see that it's just level one base camp.

1:11:23 Thomas: Oh, man. Good times. Thanks for listening, everybody. And we'll see you on Friday for a breaking news episode, as

[1:11:30] always. Stop breaking the law, asshole!

[1:11:37] 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.

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