OA 106: Elections Have Consequences! Donald Trump, Bernie Sanders & the DNC Lawsuit

Transcript

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

0:00:00 Thomas: Today's episode is brought to you by Bombfell. For $25 off your first purchase, visit bombfell.com

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[0:00:10] Is that why you hit your wife? Withdrawn? Is that why you drink and pop pills? Withdrawn? Are you a virgin? Withdrawn!

[0:00:27] Ben's here, you robbed a hospital Why'd you do that? Yeah, I'm not guilty That's not what the other lawyer said

[0:00:38] 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.

[0:00:53] The jury is instructed to disregard its own testimony. Your Honor, the prosecution rests. 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. Advices is not intended as legal advice and does not form an attorney-client relationship. Don't take legal advice from a podcast.

0:01:25 Thomas: Hello and welcome to Opening Arguments. This is episode 106. I'm your host, Thomas Smith. That over there is your other host, Andrew Torrez. How are you doing,

[0:01:31] Andrew?

0:01:32 Andrew: Hi, Thomas. I am great, other than apparently there is a clip of me from the previous episode

[0:01:38] that's being taken somewhat out of context. So, uh, yeah. I know, perfectly in context. Yeah.

0:01:48 Andrew: I try and run, you know, a PG-13 podcast here, but, uh, I guess it's

[0:01:54] still PG-13, but okay, I have no complaints. It's not like an X-rated thing, it's just expressing your preferences in a way. Nothing, yeah, it's beautiful, it's beautiful. So this is, it's a little Easter egg for, for, you know, people who don't listen all the way to the end of the show. So how are you? Oh, I'm doing great. Um, I can't wait. How's that? How's baby Opening Arguments? She is, uh, she's pot, she's got a podcast, it's

0:02:19 Thomas: On Patreon. It's uh, patreon.com. No, I'm just kidding, she has a few months

[0:02:25] before she's podcasting, but uh, yeah, no, doing, we could definitely launch a little baby Opening Arguments podcast. There's no doubt in, right now it will be a lot of weird grunting and gurgling sounds, that's, it's like that.

0:02:38 Andrew: That would still put it in the upper half of podcasts. I didn't know that, yeah.

0:02:42 Thomas: Because the audio quality will still be good, but I, I didn't know that babies, that's a lot of what they do is they're just grunting.

[0:02:49] They look like, they sound like they're lifting something for just their whole day, just all day. It's weird, I don't know what they're working on. But anyway, it is time today, I think, to finally put the nail in the, the final

[0:03:01] nail in the coffin of Bernie supporters that will still listen to our show. Yeah.

0:03:08 Thomas: This is where I have to emphasize that I voted for Bernie in the primary, I, I'm actually, if I had it to do over again, I probably wouldn't have, but I did. So I just want to just throw that out there before we talk about uh some stuff, so.

0:03:20 Andrew: Yeah, if you are, if you are a supporter of the show and you're a Hillary Clinton voter from 2016, now

[0:03:26] might be a great time to go on over to patreon.com/law and throw us a buck, because I got a feeling we're gonna lose some uh patron support after this episode. Yeah, this is, this is gonna be fun. First we're gonna

0:03:38 Thomas: Talk about, well, I mean, we got some announcements first off, so we're gonna do, I've been wanting Andrew to cover ever since we started this show a year ago, I've wanted Andrew to go listen to Serial and then give us his view, you know, not because he's a criminal lawyer or an expert on like that, but because

[0:03:57] we all want to know what you think. And so that is going to happen on Tuesday. So it's, it's a little late. I know, know, hopefully the next one of these we do can be actually, you know, sometime

[0:04:09] in the same decade as whatever the show or podcast that came out. But no, we're- Yeah, wait for my hot take on Ally McBeal that's coming in a couple of episodes. Yeah, on the thrilling Ally McBeal finale that, Yeah. So we're going to do, and you know, it's not the whole show, but we're going to cover Andrew's thoughts on Serial. Maybe we'll see if we agree or disagree. I don't know. We'll have to see. Yeah. No spoilers. And then also we've got our monthly Q&A. It's already that time because time goes way too fast and my child has already grown and graduated high school and driving and all that. No, it's already time for another Patron Q&A. That'll be Thursday, 9-26, September 26. That'll be at 7 p.m. Eastern or 4 p.m. Pacific. So that's always really fun. We want to try to announce that as much ahead of time as we can. And there you go. Next Thursday, the 26th at 7 p.m. Eastern.

0:05:05 Andrew: Yeah, that's a video Q&A. So if you've ever wanted to see Tom, you sometimes get to see, we got to see little baby Opening Arguments during the last one. Sometimes Mr. Kitty walks by. It's

[0:05:17] all the thrill of video that you don't get from our regular podcast. And that will be when you

0:05:23 Thomas: Guys can ask Andrew all your Serial questions about, you know, what this and that. Oh, I'm not going to give it away, but

[0:05:30] you can, that'll be, people will be grilling you, give it, you know, cross-examining you on, on this. Yeah, Adnan Syed stuff, so that's what's coming up uh for today's episode. We've got a little bit of Yodel Mountain, which is, I mean, no week of our Opening Arguments is complete without a a short visit, a little stroll on Yodel Mountain, because you may have found out, everybody, that Trump was 100 right when he said that Obama was, wire, was in quotes, tapping his wires or whatever the phrase was. And then in the main segment we're going to talk about a DNC lawsuit. Andrew, did the court admit that the DNC rigged the primary against Bernie Sanders? A lot of people are saying, a lot of people have been saying it, I

[0:06:12] don't know. Yeah, you might discover that the press coverage of that DNC lawsuit has been a tiny

0:06:19 Andrew: Bit skewed, and we are going to get into not only the actual truth of the situation but we are You're going to talk about the full court press that was undertaken to characterize this in the media, and

[0:06:32] you might be surprised. Yeah, and then finally, we've got a great listener question about Congress

0:06:39 Thomas: And the Supreme Court and kind of the separation of powers there. Really interesting question for the

[0:06:45] C-segment. So that's what we're looking forward to today. So, Andrew, we better get to it. Yeah. 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 do I 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. All right, you hear the yodeling, that's, you know, where we are, that is. That is still my favorite intro. I didn't think anything

0:07:17 Andrew: Was going to top Judas Priest with you disinterestingly saying down over it.

[0:07:23] But this is, no, that is definitely my favorite intro. We're in our lederhosen or whatever we're. So yes,

0:07:29 Thomas: Trump was right. According to, oh, who's the guy? According to Dinesh D'Souza, who's, you

[0:07:35] know, I get all my information from Dinesh D'Souza. He's not really. Trump was right when he said Obama had tapped his wires, right? So what's going on? What is happening with wiretapping

[0:07:48] and Manafort and all this stuff? So two things. Number one, I believe you were required to refer to him as convicted felon Dinesh D'Souza.

0:07:57 Andrew: It's true. He actually, he served, I think, eight months in a like, quote, halfway house.

[0:08:03] He like gave too much money to a campaign or something, didn't he? Yeah, it was he violated a campaign law that you truly have to be almost trying to get caught to violate because, you know, there's so many ways around direct contribution limits. But no, he managed to violate that. So they sent him to a halfway house. Halfway houses are, you know, initially, right, the idea it's halfway between prison and being reintegrated into society. So, you know, they're supposed to be a vehicle for, you know, helping reintegrate prisoners back into society. How that works with right-wing pundits who break campaign finance laws, like, I don't know, right? Like, I'm just sort of picturing sponsors being like, were you tempted to illegally donate money today, Dinesh? Like, I know we just got to take it one day at a time

[0:08:53] and call your sponsor. And, you know, when you think about writing a check, give us a, I don't know. Yeah, no, that's a good bit, I

0:08:59 Thomas: Like it. Anyway, we have to be a room in a circle of guys in like suits, like Republicans in suits.

[0:09:05] So, quick, quick bit on the facts here. In 2014, so

0:09:11 Andrew: Well in advance of the 2016 election, before anybody except, I think, Hillary Clinton had declared, uh, her candidacy, and certainly well before Donald Trump announced his

[0:09:24] candidacy, uh, and or hired Paul Manafort. The The FBI had applied for and received a warrant in the Foreign Intelligence Surveillance Act, FISA court, to conduct an investigation into Paul Manafort. And the allegations were illegal ties between Manafort's firm and the former ruling party in Ukraine. Crane, so that's when this began, utterly unrelated to the election, directly related to Manafort. You have covered this really well on Serious Inquiries Only, that because the entire Republican establishment hated

[0:10:08] Donald Trump, he did not have a lot of folks from which to choose, right. You didn't have a deep pool from which to choose in terms of advisors, right? Like, that's how we get Kellyanne Conway. You know, third rate pollster running a campaign. And so a lot of the folks that were available that had experience were people who were, if not blacklisted, sort of not working for other Republican campaigns due to their ties to Russia. And we've talked about how the way in which, right, like, you know, there's a scale, but, but if you want to assume that somebody isn't a Russian stooge or mole, or you

[0:10:45] know, what is it, Yuri, from No Way Out, Kevin Costner, uh, is that, I don't know if you've seen that, that's a little old for you, it's A Kevin Costner, Sean Young, uh, political thriller from the early 1980s. But yeah, like, look, you don't- that somebody is a stooge of the KGB to say, oh, this person is utterly amoral in the conduct of their business. They don't care about the good of humanity as a whole or patriotism, support for their country. So they're happy to traffic with our enemies. And that's how, in my view, that's the Manafort connection, right? I've yet to see anything that suggests that he is, you know, a a secret, you know, KGB operative. It's just he wants to make money.

0:11:31 Andrew: Russia is a market in which you can make money if you have connections and you don't care about the fact that you're, you know, undermining the national security of the United States. So that's- that's where it began. Uh, apparently that investigation was dropped

[0:11:48] or put on hold at some point, and then and then there was a a reapplication to resume the wiretapping. So let me talk a little bit about what a FISA court warrant is, uh, because this is an area, again, you know, we're all on Yodel Mountain, uh, and this is- these are real steps up Yodel Mountain, right? Like, like having the FBI independently corroborate that Donald Trump's uh campaign manager throughout

[0:12:14] most of the presidential campaign had- that the FBI had reasons to believe that his consulting firm had illegal ties to Russia. Like, that- that is real news. Yeah real yodeling

[0:12:26] everybody. Yeah. But let's talk about how you get a FISA court warrant. Okay. The The application is made, it is 50 U.S.C.

0:12:35 Thomas: 1805, which- And by the way, this is why even at the time when Trump made that insane tweet, everybody said, like, dude,

[0:12:41] either you're lying about this and it's wrong, or that means there was reason to get a FISA warrant. Like, who's the joke on here? But anyway, okay, go. But I do, I want to caution, here's how a FISA court

0:12:55 Andrew: Warrant works. Works. The government agency, in this case, the FBI, makes an application that is ex parte. That is, it is only the government and the FISA court judge that are in the room. It is also a secret proceeding, which is to say that FISA courts are not open to the public. There are no publicly recorded transcripts of what goes on. In an ordinary trial, those are open to the public. And even when, you know, journalists are kicked out for whatever reason, at the end of the day, there are transcripts, the records are part of the public record.

And so you can serve Federal Freedom of Information Act requests and get trial transcripts and exhibits and all sorts of stuff, unless there's been an explicit motion to seal for certain parts, right? Right. So that happens sometimes when you have extremely confidential information that all the parties agree shouldn't be released to the public. And the classic example that we always used to use in law school that seems really antiquated today was the- like the formula for Coca-Cola, or, you know, the 11 secret herbs and spices at Kentucky Fried Chicken, or whatever, that- that all the part- you know, if you had a copyright infringement suit over that formula, you would want to introduce it into evidence.

0:14:15 Andrew: But you would also then have a protective order that means that it doesn't become part of- the doesn't become part of the public record. But generally, trials are public. The records are public. You can access them through the Freedom of Information Act. Not so in a FISA court. And so what happens is government goes in, makes an application for a FISA warrant. Third parties can submit briefs of amicus curiae. And then there's also a provision that allows the attorney general to determine that an emergency exists. So, yeah, I really want Jeff Sessions being able to do this and authorize emergency electronic surveillance before getting the warrant, if the attorney general notifies a judge at the time and then applies for the warrant retroactively as soon as possible, but not more than seven days after the surveillance begins. Right. So, and and again, I took the crack at Jeff Sessions, but you can understand the law enforcement reason for that, right? Like, that is the FBI

[0:15:12] says, all of a sudden an informant says, look, the secret meeting between the Russians is taking place now in the hotel. We've got to get- we've got to record that. And we don't want to have that not be admissible at a trial. There's no time to even write up a document, right? Like, we just got to get this out

[0:15:30] the door. So call the attorney general, tell him we need to act on an emergency basis, and and, uh, get his approval. And then we'll retro- sometime in the year, I don't know, 2030, Andrew will watch

0:15:43 Thomas: The wire, and we can get his thoughts on that. Show about it's really good. Yeah. And, uh, it involves a lot of this- this

[0:15:49] kind of stuff. Yeah. And again, as somebody who, I think I've mentioned this before, but had a nationwide

0:15:55 Andrew: Practice, and I'm trying all of these insurance coverage cases with 60, 70 insurers

[0:16:01] all on my side of the table, and from- from, you know, who had hired lawyers from all over the country, when I would go to hearings or otherwise meet up with everybody who was on, quote, my side uh, of the litigation, the first thing people would say is, oh, yeah, you practice in Baltimore. What do you think of The Wire? Yeah. And I had to do the- yeah, I haven't seen it. Still true. Anyway, back to, uh, 50 USC 1805. So that's how- how you go about getting a warrant. That has been heavily criticized by the sort of weird alliance of far-left liberals and libertarian Republicans, right? And rightfully so. Like, look, I think they have an argument to be said. Uh, and the best piece of evidence in their favor is the authorizing statute, 50 USC 1805, was passed in 1979. Since 1979, there have been 35,529 applications. This is a Wall Street Journal report, and it is only through 2013, so it doesn't include the last three and a half years. But from 1979 to 2013, 35,529 applications for warrants,

[0:17:13] 35,434 of those were granted outright. 533 were modified in some way. So- oh, so the statute requires you- yeah, we would say, like, okay, you can- why, you know, you can record this, but you can't, you know, also go into this location or whatever. You know, in other words, minimizing the scope, because the statute requires you to minimize the intrusiveness. Right. So, 533 modified, and 12

[0:17:43] denied. Wow, I didn't know that. Okay. Yeah, so when- again, you got to feel pretty crappy if you're the one who got to deny. Yeah. If you're one of those 12, right? Or who applies for it? Again, is it an op, and, like, an individual? It's a government official. Yeah. So FBI, right? Must be like the total incompetent

0:18:02 Thomas: Dude in the office. Just like, man, come on, this is like one out of a 10,000 of these gets you

[0:18:08] know, gets denied. What are you doing? Don't let Colin write that. So the

0:18:15 Andrew: Criticism of, you know, I mean, you've- you've heard, uh, you know, some of the kind of legal

[0:18:21] bantering of, you know, a grand jury will indict a ham sandwich. Um, the unless the hand sandwich shot a black man. By the way, but yeah. Yeah, 99.99% is clearly in, I think it is fair to say, rubber stamp territory.

0:18:40 Andrew: This is more than just indicting a ham sandwich. This is, if you make an application,

[0:18:46] that application is overwhelmingly likely to be granted. And that should raise some concerns. And it has. They remain legitimate. We don't know anything else, right? Like, I'm going to link the CNN story, because it was CNN who, through a confidential informant, broke the story in the first place through a leak from the government that the warrant had been reissued sometime earlier in the year in connection with Manafort. We don't have the details because it's a secret proceeding. We should have that level of caution about what it means that a warrant was issued because, you know, as we just pointed out, it would have been truly historic for the warrant not to issue. But there's absolutely no connection between the initial issuance of the warrant and the campaign, and nor is there any connection between the resumption and the campaign, right? Like it was not wiretapped during the campaign. It was, if the accounting is to be believed, the warrant was reissued in 2017 after Trump had won. Oh, okay. So, you know,

[0:19:55] That- So Obama snuck back into power just to, oh no. Yeah, that- well, his- he and I share the same time machine, so, um, but apparently we're, yeah, we're apparently we're both- both equally incompetent at using it because, you know, there are a couple points we could have stopped off at in the 1940s that would have made the world a better place. You mean when Trump was born? No, I'm just kidding.

0:20:19 Andrew: So, yeah. So that's the factual pattern. I would caution against reading too much into the issuance of the warrant. But nevertheless, the fact that that investigation is on the threshold for the FBI beginning an investigation into Paul Manafort long before his connection to Donald Trump is is real and should be troubling to the to the Trump folks, folks. And again, it's it's why, you know, I- I continue to say this, that there's, uh, every couple of weeks a new piece will come out. Lawrence Tribe actually, uh, retweeted a, uh, an article that said, you know, the Russia investigation could come to a head more, you know, quicker than anyone realized, and I'm going to continue to take the over on that. Yeah, I think that, uh, you have, by by all accounts, independent career patriotic professionals, even if I disagree with them politically, who are conducting a thorough legal investigation using the standards that I have come to expect. I will stand by. I think it's going to take a while.

[0:21:23] So there you go. Is there anything that's, is this all federal crimes that Manafort might allegedly

0:21:29 Thomas: Have violated? Because the reason I ask is I'm still worried that they, because they're putting- putting pressure on Manafort, and I think it's Flynn, right? And I believe the latest word on the street is they are trying to get them to kind of flip or scare them into maybe giving more information. But then I was thinking, like, wait, wouldn't they just think Trump will pardon them in the back of their mind? So I'm wondering what's going on there. Yeah,

[0:21:54] they are- good thinking. These are all federal crimes. That's all the FBI has the- the power to investigate, um, and, uh, they- and so therefore they are crimes for which, uh, Donald Trump, uh, could indeed, uh, pardon these folks. I've got to hope that he pardons one of these guys. That's got to be enough politically bad to to finally have consequences, right? Maybe I would hope so, but but let me- let me

0:22:19 Andrew: Also add two other kind of you know addenda to that which is number Number one, when you've pardoned somebody, that means they're now – that has two more implications. A, they can be subpoenaed and required to testify under penalty of contempt of court and being jailed because they can't plead the fifth, right? There's no possibility of self-incrimination. So you can get these people on the stand. And relatedly, once they have been pardoned in connection with those crimes,

[0:22:51] they might remain loyal, right? OK, yeah. But but but but by the same token, they can say they are also free to tell the truth at that point. Right. Right. Because they have been pardoned. There is- there is nothing. So they can say, like, oh, yeah, like, I did X with the Russians and Donald Trump told me to. You can't revoke the presidential pardon. Yeah. So there's no ongoing hook that's going to require them to stay loyal. Oil- now, again, you know, that the right- the definition of, you know, a good accomplice is somebody who stays bought, so you know, maybe they will. But then, you know, the the additional consideration is all I can say is this: if what I had to go by right now, if I were facing severe criminal charges, and what I had to go by was Donald Trump's assurances that he was

[0:23:41] going to to take care of me, I don't know how confident I would be with that. Yeah, that's true. Good point.

0:23:48 Andrew: Look, like Joe Arpaio, like we understand why Joe Arpaio's pardon went through, because among the 38 percent that support Trump, that was a huge way of holding on to that, because libtards are

[0:24:00] so triggered, that's why. Right, exactly. But I don't know that there is going to be a separate and vocal block of folks who are like waiting for Trump to to pardon Paul Manafort or Michael Flynn. I- I don't know that there won't be, right? Like, it's getting my head around the Pepe the Frog head contingent is a challenge, but yeah, but, you know, I will point out that that

[0:24:25] there are there are pressure points there that that can be brought to bear, but you- you are absolutely right to point out that this is still a situation where the president can try

[0:24:38] and sweep stuff under the rug. All right. Well, we'll keep an eye on it. But in the meantime, we're

0:24:44 Thomas: Still perched on some part of Yodel Mountain. Unclear how far we have to go.

0:24:52 Thomas: Okay, Andrew. Andrew, so the court officially recognizes that everything Bernie supporters say is right about the primary. The court has said it,

[0:25:05] so it's so.

0:25:06 Andrew: Yeah. So you will not be surprised to learn that that's not remotely the case. And I want to say this at the outset, because we are going to go through and I'm going to talk

[0:25:19] a lot about the coverage of this of this case and the actors. I am not alleging that there is a right wing conspiracy to promote this. What I am going to say is that the people who stand the most to gain from sowing dissension in the Democratic ranks, that is the Trump administration and the Russians, have their fingerprints all over

[0:25:45] this lawsuit and the subsequent coverage. Okay. Um, so what happened in 2016, uh, the, in, in June 28th of 2016, uh, a class action lawsuit was brought, uh, against the democratic national committee and, uh,

[0:26:04] it's then-chair Debbie Wasserman Schultz. Uh, that complaint, uh, had six causes of action. Uh, we're going to talk about five of them, uh, in in this, for for the

[0:26:17] reasons that I'm about to explain. So the first four complaints were fraud, misrepresentation, a consumer fraud statute, and unjust enrichment. It's basically four different ways of pleading the central theory. And and this is something, again, I have found most people covering this case don't understand and haven't recorded on- the central allegation here was that the DNC misrepresented how it was going to conduct the 2016 election and thereby fraudulently induced or negligently misrepresented or in breach of a consumer protection statute, whatever theory, but but

[0:26:55] caused donors to give money to either the DNC or to the Sanders campaign, thinking that the DNC was going to run a fair election when in fact they had no intention of running a fair election. Okay, so those first four clauses of action and the gravamen of the lawsuit is about money. It's about people who donated the DNC and or to Bernie Sanders under the allegedly mistaken belief that the DNC would be neutral between the candidates

[0:27:26] and I should say, this is a cognizable complaint, right? Like, so the way to think about it is we encourage people uh for hurricane relief to donate to the red cross and to and to habitat for humanity we're going to give away some t-shirts in connection with that if we discovered that say the red cross was taking hurricane donation funds which it promised to use quote for hurricane relief and was buying a fleet of luxury vehicles for executives of the red cross you would be able to bring a fraud suit right you would say hey I gave you the money to you to spend on hurricane relief, and you spent it on automobiles, so I want my money back.

Whether you'd be able to bring it as a class action, I think would be very, very difficult. But you recognize that outside of the, I mean, that's the kind of, you know, the proverbial bag of money with the dollar sign on it, right? Outside of that case, it would be very, very difficult, right? If you donate money to the Red Cross and they say, we're going to use this for hurricane relief, and you find out that of your donations, most of that batch that came in went to TV advertisements

[0:28:35] or sending out mailers soliciting other funds or whatever, you wouldn't have a good cause of action, right? Because they would say, look, we promised to use it on hurricane relief. Part of our overall strategy for hurricane relief is to raise as much money as possible. Somebody's got to pay the bills for licking envelopes and stamps, and that's what your donations went to. In this case, the analogy to the hurricane relief is Article 5, Section 4 of the DNC's Charter and Bylaws. Now, that section is called National Chairperson, and it describes the duties of the national chair, in this case, Debbie Wasserman

[0:29:19] Schultz. And it says, the national chairperson shall serve full time and shall receive such compensation as may be determined by agreement between the chairperson and the DNC. In the conduct and management of the affairs and procedures of the DNC, particularly as they apply to the preparation and conduct of the presidential nomination process, the chairperson shall exercise impartiality and even handedness as between the presidential candidates and campaigns. The chairperson shall be responsible for ensuring that the national officers and staff of the DNC maintain

[0:29:51] impartiality and even handedness during the Democratic Party presidential nominating process. Okay, so that's the promise that the lawsuit alleges the DNC broke, thereby fraudulently inducing people to give money either to the DNC or to the Sanders campaign. That's causes of action one through four. Cause of action number five is a breach of fiduciary duty complaint, that is a duty allegedly owed to the entire Democratic Party to run the campaign in a fair and

[0:30:23] unhand- and and even-handed way, so that doesn't involve money, but it's also kind of the more vague of the allegations and cause of action number six was negligence in permitting the hack. Since that's unrelated, it was dismissed out for other reasons. I'm just not going to talk about it because that's not what, but, you know, I mean, that's not what we're talking about here. So what happened? Let's cut to the bottom line. The DNC moved to dismiss this complaint for failure to state a cause of action. As you know, and as our loyal listeners know, a motion to dismiss is the earliest stage at which you can throw out a lawsuit. It's the best for the defendant. It says even if the allegations, the factual allegations in the complaint are true, they don't rise to the level of a legal cause of action. So, therefore, you should dismiss this case. There's no need to go through the expensive discovery and deposing witnesses and exchanging documents because even

[0:31:19] if they could prove what they said, that's not breaking the law. Aha, they admitted it. That was granted the day that that was granted, the most widely circulated news story was by the Observer. We're going to link this in the the show notes, but I would caution you, I had to click on this in a uh in an incognito window. It It demands that you pause your ad block and

[0:31:44] it just, the Observer is Jared Kushner's paper, that that's, uh, you know, in which he's supposedly divested himself in order to advise Donald Trump. And, uh, it just, I don't, I don't trust their data collection, so click on it at your own peril is is what I'm saying. The Observer's headline was, "Court Concedes DNC Had the Right to Rig Rigged Primaries Against Sanders." That's a lie. It's not just a misrepresentation. It's not just, it could be. It is an out and out lie as to what the court said, as we'll see. Virtually every media outlet, and they were the first past the post,

[0:32:21] right? The Observer was waiting at the trial, at the hearing. And as soon as the result came down, they were the first online with a canned story about what this quote meant. And so not only was it picked up in the usual right-wing sources, Fox News, World Net Daily, Newsmax, the Washington Examiner, an outfit called cnsnews.com, which is a

[0:32:46] kind of minor league alt-right paper, but it even influenced the mainstream media, right? So there is a May 15th, 2017 Newsweek article that only quotes the Observer piece. And then there's a May 24th, 2017 Esquire article that quotes the Newsweek article quoting the Observer. So it was massively influential. Almost everything you've seen from Bernie bros is passing on this observer headline, which, again, right wing outlet formerly owned by Jared Kushner stands the most to gain from sowing dissension among the Democratic ranks. The description is wildly is is is a lie. I am comfortable saying Jared Kushner, you're welcome to sue me. I am comfortable saying this is a lie. So now there's a little bit of kind of interesting backstory. This motion to dismiss was filed and then the court granted oral argument. That was on April

[0:33:49] 25th, 2017. 17.

0:33:51 Andrew: This was pending in the United States District Court for the Southern District of Florida, in federal court, right? This is typically where I practice. I can tell you I have filed two dozen motions to dismiss in federal court, maybe more. I have never had oral argument granted on a motion to dismiss. It is incredibly rare. And usually the reason that that happens is because the judge is inclined in a particular direction and just wants to make absolutely sure she's heard absolutely everything, uh, before issuing the ruling. But, um, but it is, it is incredibly rare. So I'm going to link the oral arguments and this is where the first major misconception in reporting gets started. We talked about this because it's a motion to dismiss, the one thing

[0:34:41] you don't want to say if you are arguing on behalf of the DNC is that we didn't violate our provision on neutrality, right? Like, because that admits that you have a contested issue of material fact, right? But even then, in this oral argument, the DNC lays the groundwork for saying, you know, look, if this goes to trial, we will of course contest the notion that, uh, that we violated this provision. They would deny that there's any coordination at the state level. But in order to win a motion to dismiss, as OA listeners know, you have to phrase your argument of the form, even if these allegations are true, there isn't a cause of action here. And here's how this comes out in the oral argument. The court says, so are you suggesting that this is just part of the business, so to speak, that it's not unusual for, let's say, the DNC, the RNC to take sides with respect to any particular candidate and to support one candidate over another? And here's

[0:35:38] what the lawyer for the DNC does? He gives kind of an Andrew Torrez answer, right? He wanders for about two pages. He starts discussing a case called WIMS versus Republican State Executive Committee of Florida, WYMBS. We'll link that in the show notes. And basically that case talks about how the parties themselves have substantial discretion in how they implement the party's internal rules, right? And then ultimately, he realizes he's gone on talking about this case for two pages, is the judge is probably, uh, you know, rolling her eyes at him a little bit, and and he looks up and and ultimately answers the judge's question. And you can see how this could create a little bit mischief. He says, "Here you have something far more inchoate, Your Honor, which is this purported, this claim that the party acted without even-handedness and impartiality, that

[0:36:28] even to define what constitutes evenness and impartiality would already drag the court well into a political question and a question of how the party runs its own affairs. The party could have favored a candidate, I'll put it that way, maybe that's a better way of answering Your Honor's original question. Even if it were true, that's the business of the party and

[0:36:47] it's not justiciable." Okay, so you can see how that looks bad. Yeah, right, again, you got to go through the context, you got to understand, every lawyer representing the DNC would have said something

[0:36:59] like that in that context, text because you have to, because that's the formulation, you're all assuming that the facts are all true. Right, even if it were true, that's the business of the party and it's not justicial. And I should be clear, the lawyer for the DNC very clearly lays the foundation and tells the court, hey, if you don't grant this motion to dismiss, we we will dispute the facts, right? So the the record is replete with the lawyer for the DNC, Mr. Spiva, saying no, the DNC does not take sides in the state presidential primaries.

Well, and then the court says the plaintiff is alleging that the DNC basically favored Hillary Clinton over Bernie Sanders. And and the lawyer says, well, I mean, our position, Your Honor, is that there was no such preference, and there certainly was no, the Democratic National Committee did not, you know, tell the state parties that it supported one candidate over the other. Okay, this is replete in the brief, the argument is clearly preserved. Served. Any fair reading is the DNC did not admit, much less the court admitting, which is obviously a ridiculous construction of granting a

[0:38:01] motion to dismiss. But if you want to take that one bit out of context, that's how it works. Now, what did the plaintiffs argue? There are a couple interesting things that the plaintiffs argued here. First, just as color, you should know that there were Bernie bros in the audience, uh, who were disrupting the proceedings, who were cheering on, uh, the lawyer in this case, uh, Jared Beck. So, uh, if you turn to page 13 of the transcript, there is this exchange where the court says, uh, Mr. Beck is, uh, is delivering his, his argument. And the court says, let me just interrupt you. Mr. Beck says, Oh, sure. And the court says, and I apologize. This is not your problem. But for those of you who are here as spectators, and there's at least one individual, maybe two, you are distracting the court with your show of of exuberance in support of counsel's arguments.

0:38:47 Andrew: You might as well be doing somersaults or back flips in support of counsel's argument. You are distracting me. So if you want to help the side that you're here to support, let me listen to

[0:38:56] the lawyer and please stop distracting. Objection. Go. Oh, no, that's a call. Call ahead, can't do that. That's kind of amazing to me that you have that level of of disruption in the courtroom, uh,

[0:39:08] that is certainly not common to see in in transfer. Wow. Wow. So you don't normally have a cheering section. I just picture when you're making your arguments. But hold on, you definitely have the inspirational music going behind you when you do your speech. Well, I always play the Scorpions when I walk into the courtroom. I rotate through their catalog, but I come into the Scorpions. I tend to favor Rocky Like a Hurricane. I know it's a little trite, but it's what's about to happen. So what was Beck's argument? Again, this is page 58 of the transcript.

Here's what he says in court on, I should point out, April 25th, 2017, quote, "I think those allegations going to what exactly the DNC was doing for the Hillary Clinton campaign behind the scenes, how it was working with the Hillary Clinton campaign. This was all part of a preset strategy that was set down in various internal documents that have come to light through Guccifer," which obviously that's the basis for our complaint. There have been leaks that have come out since the complaint was put out, was put on file, but I think they all show the same thing, which is an intentional predetermined strategy to advance Hillary Clinton's candidacy to the nomination. And then I could quote

[0:40:23] the WikiLeaks passage. It is astonishing to me, April 25th, 2017, that a lawyer would stand up in open court, rely on WikiLeaks, their agent, Guccifer 2.0, that we know not just have ties to Russian intelligence, but the best understanding right now is that Guccifer was a Russian intelligence agent. We certainly knew this on April 25th of 2017. So, and that is, I read it to you word for word. That's

[0:40:55] the basis for our complaint.

0:40:57 Andrew: WikiLeaks through Guccifer. What did Jared Beck do after oral argument? In June of 2017, he went on Alex Jones's InfoWars. I'm going to link the clip in the show notes. In that interview, Beck suggested that the deaths of potential witnesses, the process server who delivered documents to the DNC, and care

[0:41:15] to guess? Oh, uh, what's his name? Yeah, his name, DNC IT staffer Seth Rich, all raised troubling questions, quote, this is direct quote from Jared Beck on Alex Jones, "To even question the Seth Rich murder investigation, which is ongoing, to even ask questions about it, you

[0:41:34] are branded a conspiracy theorist." Oh, that's because you're a conspiracy theorist. At the same time, Jared Beck is on Info Wars, his wife, Elizabeth Lee Beck, and and I should point out, this is not guilt by association, she's the co-managing partner of his law firm, she's a Yale Law grad, um, Jared Beck is a Harvard Law grad, Harvard Law Review, honors, big firms, you know, basically has my bio, so Elizabeth Lee Beck, Yale Law Review, she gives an interview to World Net Daily, she alleges the same thing, geez, and here's, here's what she says in WND, they, the media, are not covering the story because they were really, quite possibly, a part of the apparatus that tried to propel Secretary Clinton into office. Instead of just reporting, they seem to have been really invested in the outcome. Really invested, she said.

[0:42:17] Quote, how do I know that they're invested? Beck continued, quote, because the New York Times interviewed me over a lawsuit in which President Trump was the adverse party, and they were all over that story. And then when I started contacting the reporter, Michael Barbaro, my contact at the New York Times, to cover the lawsuit against the DNC, he basically lost his head and blocked me on Twitter. Fragile New York Times temperaments. They can't handle it, obviously, it's a topic they really don't want to touch with a 10-foot pole.

And again, I'm going to link that in the show notes, you can read that word for word. After that, May 29th, Jared Beck took to Twitter to write, "If DNC fraud lawsuit proceeds, Seth Rich would have been a potential witness. One reason why I'm so concerned what happened to him." So again, I put that out there, I am not suggesting that this was orchestrated by the Trump campaign or the Russians. I am telling, I'm telling you that the folks that have the most to gain from sowing dissension in the Democratic ranks were all over this. You had the lawyer for the plaintiffs citing favorably to WikiLeaks in oral argument, and then going to the alt-right, the worst of the worst sources, immediately after the argument, to perpetuate stories that are frankly ridiculous, and that play into the

[0:43:31] right-wing narrative about Hillary Clinton. You should think about that if you were, a yeah, and you know why, because they're

0:43:38 Thomas: Setting up to do the same thing in 2020, where we're all gonna have, their candidate for the Democrats won't be the perfect candidate, that's all, the candidate of your dreams probably, and so they'll do this all the same crap again, and they'll do that, they're both just as bad as each other stuff, just don't, don't do it, don't

[0:43:56] buy into it, worked, yeah, I mean, look, until we can show them that, and by

0:44:02 Andrew: Them, I mean the Russians, who are interfering with our elections, until liberals can show the Russians we are smart enough not to fall for this, they will continue to do this. It's been a valid, look, it worked. So now let's go to the order. I'm going to link that in the show notes as well. This came out August 25th

[0:44:21] and the court says, and again, I think it's crucial to show just how grotesque of a misconstrual it is. Obviously granted the motion to dismiss, but here's what the court said. Page eight of the order of dismissal, this order does not concern who should have been the Democratic Party's candidate for the 2016 presidential election. It does not concern whether the DNC or Wasserman Schultz generally acted unfairly towards Senator Sanders or his supporters. Indeed, it does not even concern whether the DNC was in fact biased in favor of Hillary Clinton in the Democratic primaries. At this stage, the court is required to construe the first amended complaint in the light most favorable to plaintiffs and accept its well-pleaded allegations as true. So the court ruled on two different grounds here. The first is that there was no complete diversity in federal court.

0:45:08 Andrew: And this is kind of shocking to me, but we've talked about how you get into federal court if the plaintiffs, all of the plaintiffs and all of the defendants are from different states and the amount in controversy exceeds $75,000. Here, there were plaintiffs who were members of the class who were from the District of Columbia, And the DNC is domiciled in the District of Columbia,

[0:45:30] so you didn't have complete diversity. That's the kind of thing, you know, usually you put a first year lawyer on to make sure, you know, at a big firm to make sure that you don't accidentally name somebody in your plaintiff class who is of the same, a citizen of the same state as any defendant. And then the court says, okay, look, even if you could cure the diversity issue, because obviously the court didn't want to just throw it out on diversity grounds, have them amend the complaint, knock out the D.C. defendants, and then have to do it all over again. The court says, there's no standing here.

And the reason there's no standing, again, I'm going to read, this is just a one paragraph. It's a lengthy order, but the meat is in this one paragraph on page 13. As to the fraud type claims in counts one, two, three, and four, plaintiffs fail to allege any causal connection between their injuries and defendant's statements. The plaintiffs asserting each of these causes of action specifically allege that they donated to the DNC or to Bernie Sanders' campaign, right? But not one of them alleges that they ever read the DNC's charter or heard the statements that they now claim are false before making their donations.

And not one of them alleges that they took action in reliance on the DNC's charter or the statements identified in the first amended complaint. Absent such allegations, these plaintiffs lack standing. And so, again, think back to the Red Cross analogy, right? Like, if I were to say, yeah, the reason I donated to the Red Cross was because I went, I looked it up, you had a specific

0:46:57 Andrew: Hurricane relief page and I gave you my money for that, then that's what I need to allege in order to maintain the fraud claim if you misuse my money. But if I don't even allege that, right, if I say, oh yeah, no, I just gave to the Red Cross because I've heard of the Red Cross and, you know, I thought there, were then I, you can't come back later on and say I relied on X, Y, or Z. And and and in my view, this is a very, very sensible outcome, right? People who donated money to the DNC, and especially people who donated money to Bernie Sanders' campaign, I think it would be hard, you would be hard pressed to say that those folks donated money in reliance on Article Five, Section Four of the DNC charter, which requires Debbie Wasserman Schultz to to practice even-handedness as among the candidates. Maybe somebody

[0:47:48] could make that allegation, but they, did that strikes me, yeah, wow, that's a hard one. No, but you're saying, yeah, this plaintiff didn't even, they didn't, right, they wanted to cast as wide a net as possible, and in doing so they neglected to get the causal element. The same thing holds true for count five, uh, we're, we're going kind of long, so I'm not going to read the the section, it's on page 15 to 16, but basically the idea of extending the right of a fiduciary duty between the DNC and all Democrats, the court said look, there's not a particularized injury here, in fact a dozen of the state primaries have open primaries, right, in which Republicans went in and voted, right, so, you know, how are the voters suffering a uniquely particularized injury as a result of what the DNC promised to do if you are an independent or Republican who voted for Bernie Sanders or voted for Hillary Clinton, um, and I look, I think even

[0:48:44] the, there's a reason that was count five, yeah, uh, so, uh, and then the court noted that there was no for count five, there was no effective way to craft relief, right? Like, how can you issue an injunction telling

[0:48:56] the DNC, stop being mean to Bernie Sanders, you know, like, you can, you can tell them, hey, keep the polls open and do this concrete thing, do that concrete thing? And the court said that this strikes me as a really difficult

[0:49:09] uh, an uphill challenge, this is, so yeah, it's nonsense, and it's being used in like, I

0:49:15 Thomas: I, you, I guarantee you guys have friends out there who shared this crap too, it was like, the DNC admits it, uh, did

[0:49:22] what, I had friends share it with me, right, yeah, so this is nonsense, point him to the show, if you find someone posting this, say, hey, this, Andrew Torrez, smart guy, Andrew Torrez broke down why this is nonsense, and we need to know the people

0:49:34 Andrew: Supporting this who are paying to boost those posts on Facebook are, I presume, right, like, we have evidence of prior conduct of that, I don't have specific evidence in this case, but it stands to reason that the the people who are promoting this in media outlets are extreme right-wing sources with ties to Russian intelligence, intelligence. And if you want to be a part of that, then,

[0:49:59] you know, I don't have anything to say. Yep. There you have it. Mic drop for Andrew.

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[0:51:52] it a try he who questions training only trains himself at asking questions

[0:51:59] what Okay.

0:52:01 Thomas: Listener question from Patrick Hager. Why does my civics textbook say that, well, Well, why do you have your civics

[0:52:07] textbook is what I want to know. Just did you steal it from your... I believe he's a student, but keep going. It's okay. Oh, he's like a high school student? Some people do that and listen to the show anyway.

0:52:17 Thomas: I've never... I had like those kind of classes in like eighth grade. That's why I wonder why. Okay. Why does my civics textbook say that Congress can overrule the Supreme Court? I thought it took a constitutional amendment to do that. What gives?

[0:52:33] Interesting. Yeah, really great question because this isn't a distinction I've made on the show before. So

0:52:40 Andrew: Here's the distinction. The bulk of what the Supreme Court does is interpret legislation

[0:52:49] and not interpret provisions of the Supreme Court. Now, sometimes—sorry, scratch all that—the bulk of what the Supreme Court does is interpret legislation that's passed by Congress and not interpret provisions of the Constitution. Now, sometimes they do interpret provisions of the Constitution, right? Right. So, for example, in the Obergefell versus Hodges decision, the Supreme Court said, we believe under the Fifth and Fourteenth Amendments to the Constitution that marriage is protected regardless of sexual orientation.

[0:53:25] And that's what makes that a landmark decision. Right. Oh, I see. Yes.

0:53:31 Thomas: But a lot of time they're like kind of interpreting laws that the Congress has made. Right. And so if they do it a certain way, if they make some assumptions, Congress can turn around and say, well, no, no, no, that's not what we

[0:53:43] meant. Right. And I'm about to give you an example of that. But so in the Obergefell case, whenever the Supreme Court is interpreting what

0:53:51 Andrew: The Constitution means, the Supreme Court is supreme, right? Their word stands.

[0:53:57] That's why you can't pass a law now prohibiting gay marriage. Otherwise you know the Trump administration will be trying to do that, right? Because we've now decided that, as a matter of the the core text of the Constitution as amended over time, that protects the fundamental right of people to marry regardless of their sexual orientation. And to change that, you need the constitutional amendment, that's the understanding that Patrick Hager has. But we've talked about lots of cases, and it is, again, the bulk of what the Supreme Court does, where they They are interpreting potentially ambiguous phrases in laws passed by Congress. So, really good example, something we've done a number of times, we've talked about Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex. And so these cases, they haven't come up to the Supreme Court yet. We've talked about the Hively decision in the Seventh Circuit. We've talked about other pending cases. They're doing the same thing. They're saying, what does prohibit on the basis of sex

[0:54:59] mean in light of the background rules and in light of Congress's intent in passing this law, right? And so whenever the Supreme Court is opining as to what a law means,

[0:55:18] Congress is free to come back and go, no, no, no, that's not what we meant, right? So if the Supreme Court, for example, were to rule that sex in Title VII meant and included sexual orientation and gender identity, you absolutely could go to Congress to amend the Civil Rights Act of 1964 and put in language that says, in the definition section, that says, you know, sex as used in this title is meant to refer to biological sex only and does not include claims for sexual orientation and or gender identity. So, you that's a situation, situation, it isn't Congress overruling the Supreme Court, it is the Supreme Court said, hey, we think Congress meant to include this when it used this phrase, and Congress is always free

[0:56:15] to come back and go, no, no, that's not what we meant, we meant this. So that's how, how does that work, like,

0:56:21 Thomas: Just procedurally, because the, so the Supreme Court has ruled on it, what is, yeah, that does, is that technically

[0:56:27] another law that Congress is, yeah, no, what you do is, yeah, you just amend the law. Oh, they amend it. And then that, once you've amended it, that sort of throws away all the court precedent about it? Correct. Yeah. And in fact,

0:56:40 Andrew: You will often see, so to take something that is, it's not a matter of statutory interpretation, but the Federal RFRA Act, right? You will see that Congress will sometimes explicitly state in the whereas clauses of the resolution or in the purpose section of a bill, will say, you know, the Supreme Court reached X result, we disagree with that result, the purpose of this legislation is to return us to the state of the law before that Supreme Court decision. So, with RFRA – and again, RFRA is a different situation because Congress is basically enacting greater First Amendment protections by statute, which they're sort of free to expand to say we want legislatively to provide for this.

Because the Supreme Court has said in Employment Division v. Smith that the free exercise right does not extend to here. And so the preamble to the Religious Freedom Restoration Act specifically says, we don't like Employment Division v. Smith. We want to go back to the old Sherbert v. Werner standards. So that's what this legislation is intended to do. And that is often what Congress will do when it is clarifying what a law meant because they didn't like the way the Supreme Court ruled. So I know that seems

0:58:00 Andrew: Kind of weird to have, and I totally get Patrick's question, right? Like you're taught in Thomas's eighth grade civics class, right? The Supreme Court, right? Congress makes the law, the president enforces the law, the Supreme Court interprets the law, right? Like that's the formulation that we use. So how can Congress overrule

[0:58:19] the Supreme Court? But that's how it works. Wow. Well, there you go. Interesting question. And yeah,

0:58:25 Thomas: Yeah, thanks for asking it, Patrick Hager. All right, Andrew, it is time for our co-favorite segment of the week, and that is thanking our top, all-time, great, Hall of Fame, master expert, amazing patrons. I just tried to throw as many adjectives in as I could. And that begins with Heather Loveridge, Sakashite Fukasumi, Eats Podcasters for Breakfast, Kaylee Reiser, Violet Page Hall, a bunch of symbols that I can't read, Danny Baker at Combat Nonsense, Torsten Piel of NoSeaBoneMart.com with Paranoia Pills, Steve Sigmund, Greg Sullivan, C6, Sarah Sammy, Time Magazine's 2006 Person of the Year, Roger Metcalf, Rhonda the Dork, Rebecca Smizer, Dan Irizarry, Adopt a Homeless Pet and Oppose Declawing and Ear Docking The Wayward Willis Podcast Philip Stromberg, Tricicular Manslaughter CampQuest.org CampQuest.org

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[1:01:00] slash law and give us a buck, you won't regret it. Yeah. And And you'll hear us on that Q&A, which is one of the most

1:01:06 Thomas: – that's quickly becoming my favorite thing we do is that video Q&A for patrons only, interact with them. It's so fun.

[1:01:12] So we'll see you then. Thanks for patronizing us. Oh, no associate of this firm has ever failed the bar exam. No kidding. All right. And now it's time for that really easy – gosh, the bar, I guess. This is the easy test you have to just pass real quick in order to become a lawyer. Not a big deal. Yeah. More paperwork than anything.

1:01:36 Andrew: We are going to give more advice to criminals in this TTTBE. So if you're ready,

[1:01:42] put on your criminal defense hat. I am a criminal lawyer. Yeah. Yeah. So, Thomas, a man who was reportedly a renowned art thief was on trial for stealing several Picassos

[1:01:55] from a museum. I was going to have that be the... That's awesome. Who was that goofball artist, Kandinsky, from Double Jeopardy? Anyway, oh, yeah, the paintings, yeah, had been recovered and were in the courtroom. The prosecution presented a professor of art history to authenticate each piece. The defense objected on the basis that the museum curator where the paintings were housed had to identify if these were in fact the paintings that were stolen. Assuming that others will testify to the fact of the burglary, is the court likely to reject this witness, meaning the

[1:02:28] expert witness, as being qualified to authenticate the paintings in question, and why or why not? Okay, so, uh, so the argument is you can't use an expert witness to authenticate these famous Picasso's, you have to bring in, yeah, well, technically whether or not they're authentic doesn't necessarily mean they were in the court, the uh, museum, I guess, interesting. See, so here are your choices. A.

1:02:58 Andrew: Yes, because artworks and other physical evidence must be authenticated by their official custodian. B. Yes, because an outside person may be able to partially authenticate the painting, but he can't say whether it was the one that was in the museum or that was stolen.

1:03:16 Andrew: C. No, granting the objection will simply waste the court's time if the court has to bring in

[1:03:22] the museum curator and go through hoops to authenticate the paintings. Things I tried not to read the final answer, that's a, that's a ridiculous answer, I will give you that one. Uh, D. No, because the authentication can be accomplished in several different ways that will verify it is the genuine piece of

[1:03:40] art in question. I mean, it doesn't talk about where they were recovered from, like, if that's crucial, like, if they're in his

1:03:47 Thomas: Living room just hanging out. All right, so I'm going to eliminate two, and I'm not going to be so bold as to eliminate two

[1:03:53] of the same answer, that's only when I'm feeling extra, extra, uh, confident. I mean, obviously C is nonsense, but I love it's one of my favorite answers so far, like that's a waste of time. I can't wait to

[1:04:05] hear the judge, like, why should, should we go through these hoops. Objection, going through hoops. Yeah, oh, that's going into our movie, objection hoops. Oh, you're right, sustained. Yeah, we can't go through hoops here. So, yeah, eliminating C for sure. And then I Guess I'll eliminate A, yes, because artworks and other physical evidence must be authenticated by their official custodian. I mean, that, I, uh, other physical evidence, like, like, I don't think there's an official custodian for all physical evidence. I don't know. I'm hoping that's wrong. That's going to be really crazy to me if that's right. So it leaves B, yes, because an outside person may be able to partially authenticate the painting, but he can't say whether it's the one that was in the museum or that was stolen. Or D, no, because the authentication can be accomplished in several different ways that will verify that is the genuine piece of art in question.

1:05:00 Thomas: Oh, man, that's, yeah, that's hard. You know, I'm going to go with B, yes, because an outside person may be able to partially authenticate the painting, but he can't say whether it's the one that was in the museum or that was stolen because, yeah, I mean, it actually, I think it's not as uncommon as you might think that it turns out that this piece of art in a museum was a fake all along. I'm pretty sure I've read stories of that happening and like in a court of law, I think that would be reasonable to say like, you know, well, how do we know the original paintings were, the paintings in the museum were originals? Maybe they were knockoffs. Maybe they were some black market purchases down the line. Who knows? So I think I'm going to go with B. Yes, because an outside person may be able to partially authenticate the painting, but he can't say whether it's the one that was stolen. So it's close. I think D is maybe reasonable, like maybe you can use it as part of the way that you authenticate it in some way, so it could

[1:05:56] be D, but I'm going with B on this one. All right, and if you get this right, that will be 10 in a row, man. So for those of you who want to play along at home, and, uh, and I think there has been, as, as you have done better, there has been a resurgence of interest in TTTBE, and here I'm going to try to throw people off even more, because the easy answer is just go with me because I get every one of of these right, but further evidence that I think that if the answer is B, then it's not, this isn't really a law question. You know, like that's, that's the only thing that gives me pause, because if the answer is B, then it's sort of just a little bit of a logic question. There's not really any law, you know, the D answer is the more law-y one. Like, oh yeah, if we go to Andrew will tell me, well, it's the rules of

[1:06:40] evidence.

1:06:41 Thomas: And he'll tell me some rule of evidence, and then it'll be that you can have several different ways that you verify something, something, so I'm still going

[1:06:47] with B, but like I don't know, might be D, or it could, could be C, if you want to get sure. Yeah, definitely, I suppose

1:06:55 Andrew: It could be A, uh, no, but the way to play along, as you all know, we, uh, announce the episodes on Twitter and on Facebook, simply, uh, retweet or share the post on Facebook, include your guests, the reasons therefore, and, uh,

[1:07:12] the hashtag TTTBE, and every week we pick a winner and announce them on Tuesday, and shower them with fame, fortune, uh, and never-ending, uh, surprises, and, uh, we, objection, your honor, we're going through hoops here, that's my new favorite objection, that'll be for everything, that's excellent, so, um, so yeah, do you think, do you think Thomas has, uh, gotten it 10 in a row? Do you disagree? Play along, send us your answer, tweet, Facebook, and we'll pick a winner next week. All righty. That's it for today's show. Thanks so much for Andrewing. Thanks so much for patronizing and

1:07:50 Thomas: For listening. You guys are the best. Looking forward to the serial episode coming up next episode. And of course, another reminder about the patron live Q a it is so much fun seriously you don't want to miss out patreon.com/law uh just keep an eye on it the notification will go up with the

[1:08:08] link and all that. So with that said, we'll have to see you guys next week. Stop breaking the law, asshole!

[1:08:18] 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.

[1:09:06] this podcast is a production of opening arguments media llc all rights reserved

[1:09:15] objection going through hoops