OA122: Moore is Less

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 Withdrawn.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 Withdrawn.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 Withdrawn.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.

0:01:18 Thomas: Hello, and welcome to Opening Arguments. This is episode 120. Well, I think it's episode 122. I

[0:01:25] suppose I haven't really been around for the last few, but we decided that we could know, we could not wait, despite the fact that Andrew should be on some sort of vacation right now, kind of, we decided it's just too long without an up-to-date rapid response opening argument. So, Andrew, everybody, recording from New Zealand.

0:01:48 Andrew: Yeah, I am upside down right now. Uh, the toilets are flowing uh counterclockwise. Uh,

[0:01:54] and you can hear it, yeah, yeah, yeah. And, I, he's in a hobbit house right now. I, I am with someone who, and I'm not making this up, has threatened to punch a wallaby in the testicles. So, um, so there you go. Uh, no, I, I really, I want to, I want to give a a special thanks to uh to Natalie Newell and Aaron Rabi for uh recording the shows uh that aired 120 and 121. I thought those were uh those were great episodes, not because I'm a great interviewer, but because they are uh great guests. And in fact, I've already gotten criticisms on, hey, you know, dude, like, you need to talk less when you have

[0:02:31] guests on your show, and I'm like, yeah, that's that's probably a fair criticism. So, so we were going to try to get an interview with

0:02:37 Thomas: A wallaby or a hobbit or some some middle earth but but yeah live from middle earth studios uh is is Andrew. I'm so glad that we're able to do this. Didn't want to go another week without a rapid response. And speaking of rapid response, we're going to talk Roy Moore. Pretty big story going on. Lots to talk about, different questions. We're going to look at, but we wanted to tease, lots of people have asked about this Cards Against Humanity gimmick that they're doing. And people have noted- Your favorite party game. Exactly. People have noted that I hate Cards Against Humanity, but I just hate it because it's a crappy game. I don't hate their ability to do legal gimmicks.

So I'm excited. I'm actually very excited to talk about the Cards Against Humanity thing on the next episode. Just wanted to give a little teaser. Often when people are expecting to hear a story, it's good to let them know it's coming. It's coming. But that's going to be interesting. But in this episode, we're going to talk about Roy Moore's defamation lawsuit. We really ought to put that in quotes because who knows if that's actually happening. And then we're going to talk about what we can do about him on the ballot or what Republicans can do, I guess. Can he be replaced? What happens if he withdraws? Some election law stuff going on. And then finally, can the Senate expel him if he

0:03:57 Thomas: Wins? What are the rules around that? So it's a Roy Moore heavy episode, but I think it's an important issue with lots of legal questions about it. So what do you think, Andrew? Andrew, want to get going on it? Yeah,

[0:04:09] Let's dig in. Agolas, watch your elf eye see. The Uruks turn northeast.

[0:04:18] They're taking Roy Moore to Isengard. For those of you who don't know or blocked it out or blacked out, we'll hide forever.

0:04:28 Thomas: All right. Position yourself on your hobbit sofa and make sure your big

[0:04:34] round door is closed. Closed, and with the circular door with the knob in the middle, just make sure that's all nice. It's all hobbit area in New Zealand, right? I mean, I have that. It's all, it's all about

[0:04:46] forced perspective. Yeah, so yeah, uh, yeah. Do you feel really officially the tallest person in this hemisphere? It's great. All right, so Roy Moore, I, I don't know. And now I suppose you would know because you're, you've done the research. But I, I thought he's just threatened a lawsuit. Has

[0:05:04] he, he actually gone about suing for defamation? Do we know? No, he has not filed a lawsuit yet. What he has

0:05:11 Andrew: Sent to the Alabama newspaper, um, which is, I just get

[0:05:17] it from AL.com, so I don't know. Oh, I'm subscribed, I get it delivered to me uh every day.

0:05:25 Andrew: AL.com. It's like the Alabama News Sentinel or what have you, and we will link this in the show notes. It is, the parent company is Alabama Media Group. And uh, and so Roy Moore hired a lawyer in Alabama named Trenton Garmon to send what is called a litigation hold letter. And this

[0:05:43] is, um, you know, look, we've talked about lawyer humor in the past, and this has gone viral for uh sort of all the wrong reasons, because it's, this lawyer is incredible. He is, have you seen him? You've seen him, right? Oh yeah, oh yeah, there's so

0:06:02 Thomas: Much we could talk about, and I'm glad, because I haven't, I heard that this letter was amazing, and I haven't actually read it, but I have seen

[0:06:08] his other interviews. Uh, he is incredible. So I am excited, I'm buckled in, let's hear it. Well,

0:06:15 Andrew: You know, so the first thing, right, you, you read a letter uh the same way you read a complaint, right, which is, uh, you scroll down to the bottom and you see whose name is attached. Uh, and then you look to see, you know, what level of expertise that person has, uh, in the field in which they are writing to you about, right? So this is a four page, line, three and a half page letter. Uh, you look to the end, and it is signed, respectfully, Trenton R. Garmon, G-A-R-M-O-N, J.D., M.A. Um, which is, which is kind of of the first, um, that's sort of weird. Um, and it's, it's sort of weird in a couple of ways. Right, number one, I don't know any lawyer that signs their name with a J.D. after it, right? J.D. just means juris doctorate. It means that you have graduated from law

[0:07:04] school. Uh, doesn't mean, doesn't mean that you've passed the bar, doesn't mean that you're admitted to practice law anywhere. Yeah, um, when I I write legal letters, I sign it Thomas Smith, TTTBE.

[0:07:17] That's the way to do it, right? Look, it wouldn't be weird to sign it Trenton R. Garmon Esquire, right? Right. It wouldn't be weird to sign it Trenton R. Garmon and then on the next line, you know, counsel for Roy Moore. And we're going to get into who he represents and everything else. Signing it J.D. and M.A., by the way, that is a master's in arts. He's got a master. He's got a, he's got a theology degree, which,

[0:07:43] you know, really, that's super relevant when you send out litigation hold letters. So so then I looked up I looked up Mr. Garmon.

0:07:54 Andrew: There's a uniform. There are a bunch of different uniform rating services. The easiest one to find online is

[0:08:00] Avvo and Avvo rates lawyers on a scale of one to ten and so you know with with with my traditional lack of modesty, right? Like I'm a, I'm a 10, right? Like, you know, well, that's

[0:08:13] the rating that they've assigned to me. Mr. Garmon is a 2.2.

0:08:18 Andrew: I've never seen that before, right? Like, you know, when I started off my own firm, I think I started at like an eight and a half, and then you have to, you know, you get an eight and a half for, for some credentials, and, and for responding, and, and

[0:08:31] for not having any disciplinary actions taken against you and for being in good standing. Well, plus there's the swimwear portion of the competition. Yeah, right. Um, that, that, that's what brought me down at first, but eventually they came around to my uh my unique charm in that, in the talent, I, I

[0:08:49] can juggle. So, that I can't juggle, but yeah, but no, I, at 2.2, right, he has been, um, he's been uh disciplined by the State Bar of Alabama. 2.2 is, um, the Equivalent, you remember when we talked about in the post-mortem to the Travis Wester episode about how when you log on to Lexis or to Westlaw and you're about to look at a case that's been overturned and it puts a big red stop sign on it. 2.2

[0:09:20] is the equivalent of Avvo putting a big red stop sign. Well, not only that, this guy's face when he talks is also

0:09:26 Thomas: A stop sign, but that's a separate issue.

[0:09:30] you. So, uh, it's a 2.2 rating. Uh, and you know, he practices in the field of personal injury. Um, your favorite kind of lawyer. Yeah, my, you know, look, like, that's, that's, I have, I have friends who do personal injury law who are, you know, perfectly uh uh competent

0:09:48 Andrew: Uh lawyers who are, who are, in fact, I mean, if I were ever in an accident, that I would go to a PI lawyer if I needed to sue somebody.

[0:09:55] I wouldn't go to a PI lawyer for, to threaten defamation against a newspaper.

0:10:01 Andrew: So, you know, it's just a, just another one of those where I do think, right, like there are very few specializations in the law that, that carry through. So, so people tend to think kind of rightly so, you know, a lawyer can, can do X and can do Y and can do Z. But, but most lawyers, you know, will have a career in which they specialize in, in a particular area, right? I represent startups and small businesses. That's pretty

[0:10:26] much all I do. Every once in a while, I do a favor for a different client, but that's my area of expertise. If you represent people who get hit by cars and

[0:10:38] that's your area of expertise, then maybe you shouldn't be opining about defamation. Okay, so that's Trenton Garman. What is this letter? The whole point of this letter is it's what we call a litigation hold letter.

[0:10:58] And the reason that you issue a letter like this is that when somebody is on notice that a lawsuit has been filed against them or is being threatened to be filed against them, then they have certain obligations to preserve documents that could be used as evidence in that upcoming trial, right?

[0:11:23] And so that's what it means to, those are the breakdown of those two words. So there must be pending or threatened litigation. And then hold means hold onto

[0:11:35] your documents, So, you know, you think about most businesses will have a routine document destruction policy, right? We delete emails after a certain period of time. We store documents for this long but no longer.

[0:11:54] And so a litigation hold letter says, hey, you've got to go through your documents and preserve them because now you you know, uh, that this lawsuit is coming up. And so we don't want to hear, we don't want to get to the lawsuit and, and have you say, Oh yeah, sorry. We, we scrub our emails every 30 days. And those got, those got deleted. I mean, from this point forward, once you get the notice,

[0:12:21] um, that, that, that puts you on notice that it's up to you, uh, as the potential defendant to preserve And failure to preserve that evidence is a separate tort called spoliation. And what spoliation means is just destruction of evidence. So that's why you issue this.

[0:12:46] This is hilarious. Yeah, how does that apply right now to this? Does

0:12:52 Thomas: That apply to, to when women are coming out against Roy Moore and then it's like, hey, hang

[0:12:58] on to your emails, women? Well, and again, it is, it is addressed to, uh, counsel for the Alabama Media Group that runs the AL.com, oh okay, online newspaper, right? Right. So

0:13:11 Andrew: It's not addressed to the accusers. It's addressed to the newspaper, right? And so there are certain things that are common practice that I put in all of my

[0:13:23] litigation hold letters that aren't present in this letter. And then there's all sorts of amazing stuff that is present that, you know, you would just sort of never do, right? So the idea is, in a litigation hold letter, typically what you do is you say, hey, look,

[0:13:41] we are thinking about or we are about to sue you. Because we're about to sue you, you have to hold on to your documents, and you can't destroy them, and you are hereby directed to do that. And by the way, we reserve all of our rights to do, you know, whatever it is that we think is best in consultation with counsel. And

[0:14:06] this letter should not be construed as illustrating all or setting forth all of the possible claims that my client may have against you. Right. That's how I send out a litigation hold letter. This letter doesn't contain a disclaimer that sets forth

[0:14:25] all or some of the potential claims that Roy Moore, and it's also brought on behalf of Kayla Moore, his wife, and their foundation, which is called the Foundation for Moral Law.

[0:14:41] That's a real weird thing to do. Well, first off, I mean, the foundation for moral law, I can't, anyway, you should have led with that, but okay, yeah, go ahead.

[0:14:52] Well, there's, look, this is a goldmine. Yeah, that's true, that's true. The reason that's weird and the reason that's problematic is one of the first things that anybody who represents institutional clients will face is the question when you purport to represent more than one party at a time, right? Right. And that's this

[0:15:19] is part of why I think the Garmon's background in personal injury law, you know, is coming out and is really sort of showing his inexperience here. Because, look, like typically if

[0:15:31] you represent people who get hit by cars, right, it's really, really easy to figure out when you have a conflict of interest. Right. You can't represent both the person who's been hit by the car and the driver, right? But those are the people who were in conflict. But when you typically, like I do, when you represent businesses, when you represent

[0:15:53] institutions, you need to look at that as the lawyer and say, okay, who is my client? Because there may be conflicts of interest by and among if you represent multiple

[0:16:05] parties. And so for here, there are a great many potential conflicts, right? Between Kayla Moore and her husband Roy Moore are a pretty obvious set of potential conflicts. And there are independent allegations that Roy Moore has, as uh, embezzled money uh from the charity, um, really, and yeah, uh, from the foundation for moral law. I'll I'll give a link to that in in the show notes, um, and the foundation for moral law has not been named, as far as I know, in any of the al.com stories, right? So in other words, if the primary allegation here is you have to hold on to your documents because we're going to sue you for for defamation, which it sort

[0:16:57] of is, but I'm going to get to that in a minute, like this is a really weirdly written letter, leading with this firm has been retained to represent the foundation for moral law, comma, it's President Kayla Moore, comma, and Chief Justice

[0:17:09] Roy Moore, that to me as a lawyer, I look at that and I say, okay, you represent the institution, you represent the foundation, you shouldn't also represent the individuals involved. Because the interest of the foundation is very, very separate from

[0:17:28] Roy Moore's interest personally, right? That Roy Moore is interested in controlling negative media about him with respect to child rape allegations. The foundation may have an entirely different view, right? Like Like the foundation may say, as long, we just want, we want the reporting to be very, very clear that, you know, none of this happened.

[0:17:54] The foundation is different than, yeah, or something. Yeah, right. Yeah, that, yeah, that, that, that Roy Moore was not active in the charity, that we weren't, you know, procuring high school girls. So it's not as though, yeah, yeah, the, the newspaper

0:18:06 Thomas: Didn't say this charity committed these acts or something. So it's a little weird to be

[0:18:12] representing them and Roy Moore. Is that what you're saying? That's exactly right. So, um, next, then we have, what are the allegations that are made in this letter? Um, the allegations are, this is page three, uh, of the letter, are

0:18:31 Andrew: Defamation, libel and slander, fraud, malice, suppression, wantonness, conspiracy

[0:18:37] and wantonness. Oh, I like the wantonness. Yeah, that's a ridiculous thing to to do. Right? Like, what what you should say is, again, you have reservation of rights language, you say this letter is not a full and complete, uh, list of all the claims that, uh, we

[0:18:57] intend to make against you, but we intend to file a lawsuit for defamation against you. That's all you need to do. You

0:19:03 Thomas: Know, there's no need, that's all. They're trying to throw the kitchen sink at them, like you're going to intimidate them or something.

[0:19:09] Yeah, and it's not intimidating. I mean, when you send this letter to AL.com, a media company, right, they have lawyers. They've gone through this before.

0:19:25 Andrew: Yeah. And again, I think this is, you know, maybe you get some of the history of, you know, the personal injury. Right? Like when the average person who doesn't otherwise have an interaction with the legal system gets a threatening letter on lawyer stationery in their mail, like the longer and the more, you know, maybe that there's some, you know, kind of additional, this is more scary. But when you know that this is going to a lawyer, it's ridiculous, ridiculous. And I know this not only because it's common sense that AL.com is represented

[0:20:01] by lawyers, but the whole point of issuing a litigation hold letter is to send it to their lawyers to make sure that they don't destroy the documents. Right. So, yeah, so there's this page long, uh, that is just, um, it's just crazy, uh, and it contains, there is one case referred to in this four-page letter, Richard Jewel v. New York Post, and there's no citation on it. Right? Like, I mean, you, you know, our listeners know this. Right? Like when I, when I talk, I

[0:20:33] feel like our listeners could have written a better version of this letter. Oh, there is no doubt whatsoever, this guy needs to listen to our show. I think Trenton, Trenton, come on, buddy, listen to the show. You're welcome, welcome. You know, we, you're welcome to come listen to the show, and maybe we can talk you out of this foundation for moral law stuff.

[0:20:51] Uh, and then in the middle of page three, and And I know we've we've kind of gone through this a lot, but but I feel like I can't pass

[0:21:03] this one over, is the discussion of the merits of why they're going to sue for defamation. Right. And again, if you represented Roy Moore, I would tell you what, you know, to write the letter that I described earlier. Right. We are still investigating subject to reservation of all rights. And this letter does not constitute a full and complete list of all the claims which my client may have against you. Roy Moore intends to sue you for defamation because you have and then you cite to the correct New

[0:21:40] York Times v. Sullivan standard. Right. You say you have either with actual malice or with, you know, knowing falsity or reckless disregard for the truth, published statements about my client that are untrue, period. You are hereby directed to retain all documents that

[0:21:59] is like sounds like a paragraph. Like, you know, you don't need do you need a four page letter for this? You do not.

0:22:07 Andrew: This is the merits. OK, this is what they're saying in this letter are the merits of their defamation claim. And because of the way this letter is structured, this document is now

[0:22:20] admissible in the event that Roy Moore ever sues. OK, really? And will be used to impeach Roy Moore's testimony. Right. Like there are there are things when a lawyer writes a letter on your behalf. So, for example, Thomas, if somebody were to sue you and I write a letter on your behalf

[0:22:39] offering to settle that lawsuit, I would put at the top, if it's in federal court, I would say this letter is an offer to compromise. It is subject to Rule 408 of the Federal Rules of Evidence and is not admissible in court. And it would mean anything I say as part of that effort to compromise could not be used against you later on if we don't reach an agreement. Right? Now,

[0:23:04] certainly there are things... And so the purpose of that is so you can discuss it and kind of say, well, maybe he did this, but

0:23:10 Thomas: Maybe, you know, like you can kind of, is that what it is? Like you can actually make concessions in order to get some sort of

[0:23:16] settlement? Yeah, right. And you would say, okay, let's assume for the sake of argument, you're going to win on X claim, right? Even so, you know, that we are only going to pay you $10,000. And now I should should be clear that those kinds of letters are inadmissible to prove

0:23:35 Andrew: The amounts that are the subject or the substance of the discussions relating to the offer to compromise. If I say something else in the letter, you can introduce that letter for the unrelated aspect. So let me give you a real life example of a client. I'm going to modify it a little bit. The client was allegedly terminated and given a buyout. He owned stock in the company and made a buyout offer in the same letter. They said, hey, we're going to fire you and we want to buy back. You own 20% of the company. We want to buy it back for a

[0:24:19] million dollars. I can't introduce the letter to show that they value his stock at a million dollars. That's part of the offer to compromise. But I can, And indeed, in our lawsuit, I attached the letter as an exhibit. I can introduce that letter to prove that they fired him, right? So in other words, like a lot of attorney-client privilege,

[0:24:44] the fact that it is privilege doesn't have a complete shielding effect. So it's not as though it doesn't exist. It's that you could reference it for certain things but not others? Yeah, that's exactly right. This letter. So that's that's that's if you've done everything right. Right. Yeah. This letter has no such right. This is just a legal holds hold letter. It's everything in there is now a statement that has been made by your lawyer, right, an agent on your behalf. And as we know from all of the TTTBE questions involving admissions by a party opponent, in civil litigation, this is an admissible exception to the

[0:25:28] hearsay rule. So you don't have to call his lawyer to the stand. You can pull up this letter and say, "Yeah, yeah, your lawyer said X." So here's what his lawyer says. And by the way, this sentence begins with the word "meaning," which is interesting. Interesting, meaning, "your client has used terms in reports maliciously or carelessly which has falsely

[0:25:50] portraying our client's," period. Okay, so that's that's that's some neat grammar. How can you know that's how he got around it being admissible? As he made it just incomprehensible? Yeah, try admitting this. Yeah, but now, now we get into the the substance. Specifically, "your," your client's reports have indicated that there are five, bracket five, women accusing Chief Justice Roy Moore of sexual misconduct, when in fact only two women have made accusations of sexual misconduct, period. Next sentence. "And both of those women have made false statements which your client has yet to publish," period. "The other ladies, which were rounded up in the witch hunt, merely allege that they perceived him to have made advances, but

[0:26:41] do not accuse him of any sexual misconduct." The other ladies, which were rounded up in the witch hunt.

[0:26:49] Oh, man. If I hired a lawyer, well, so A, right, this is, and this is a criticism that needs to be directed at AL.com, which has used the phrase sexual misconduct. What Ryan Moore is accused of is not sexual misconduct, right? He's accused of rape. He is accused of

[0:27:08] child rape of girls who are multiple years, 14 years old, right? But not within the realm of being able to consent to sexual behavior. For his lawyer in print to say, well, you know, right, there are two women

[0:27:27] who have alleged that Roy Moore raped them when they were young teenagers, but not five women, and you haven't printed essentially a full and complete cross-examination of their statements. That does not serve

[0:27:47] your client well. Let's say it that way. And by the way, this is the center, paragraph three, it's in the middle.

0:27:56 Andrew: This is the central allegation underlying the

[0:28:00] ostensible defamation claim here. Not these statements are false, but that these statements were exaggerated and you failed to put them in proper context, that level of a concession is, it would make, like, there's no lawyer on earth who would now take this case on

[0:28:19] behalf of Roy Moore, because your client has conceded that the core of the reporting is accurate within the standards of New York Times v. Sullivan, right? I mean, it, the

[0:28:32] idea that- Case closed. Yeah. Yeah. It's amazing. So this is a really good example of be careful before you hire a lawyer to write stupid letters on your behalf. How about we leave it?

0:28:49 Thomas: I think it, but for me anyway, it's an encouraging sign that I probably could get a job as a lawyer. I mean, I just have to defend like the worst people, but it sounds like, basic grammar, for one, is something that

[0:29:07] I have that this guy doesn't. Yeah. You're not you're not innumerate. Right. Like the number of lawyers who

0:29:13 Andrew: Are sort of constitutionally afraid of discussing numbers is really, really high. Yeah, that used to be like one of my, and obviously, you

[0:29:26] know, I'm an amateur when it comes to high level economics or, you know, advanced statistics, that sort of thing. But I had a case in which our firm was representing – it was a white-collar criminal defense case in which we – the firm was representing a hedge fund manager who was accused of various economic crimes. And the government put on a professor from the University of Maryland as their witness to sort of discuss the government's economic theory of the case. Case, and I was brought into the case to cross-examine that witness because I had a, like, I knew nothing about the case. I'm obviously not a criminal lawyer, that sort of thing, but, but just because I was comfortable with dealing with the numbers. So, and if I could do that, then, you know, clearly, clearly you could do that. So I'm

[0:30:24] in. Yeah, I think you're in. So you say that you have that there's no better man than Roy Moore. You've said that you still stand by that comment. From who I, I know, and Roy Moore, I know no better 14-year-old child. I know a lot of good 14-year-old women. But from who I know and Roy Moore, I know no better 14-year-old child. Okay, so that, that letter is nonsense. So we've covered that. Now what about the, uh, the, the election ramifications

0:30:48 Thomas: For this? Can they replace him on the ballot? Does the, now what is the sore

[0:30:55] loser law, what is, is that real? It is real. So let's kind of walk through this. Okay.

0:31:01 Andrew: As of the day that we're recording this, and I should say the day that we're recording, I am a day in the future because I'm in New Zealand. It's actually Friday morning at eight in the morning where I am, but it's Thursday in California. We have had some polling, including a very prominent internal Republican poll that shows Roy Moore down, trailing his Democratic opponent, Doug Jones, by 12 percentage points, 51 to 39 in

[0:31:33] Alabama in the special Senate election to replace Attorney General Jeff Sessions, which is going to be, that election date is December 12th, right? So there's a full month out before the election. And again, this is political analysis, not legal analysis. I think it is important to understand the context of why the Republican internal polling organization would release and publicize that poll, right? It's the first time in

[0:32:05] history that that a political party has deliberately released a poll showing their candidate getting crushed. And so I urge some real caution with that, right? One of the, like all of the reasons that I can think of why you would do that if you were the Republican polling organization are, number one, to try and encourage the Republican Party to replace the candidate. It, number two, uh, to try and uh, drum up uh, the support from the base that that still supports Roy More. And number three, you know, sort of the Hillary Clinton 2016 Nate Silver effect, right? Like, to encourage uh, Democrats to be uh, overly confident and be like, oh yeah, that's right, like, yeah, this guy's getting crushed, now so uh, good for us. And and it's not important. If if you are are a Democrat in Alabama, it is going to be very, very difficult institutionally to beat Roy Moore, even if the next month

[0:33:05] of news continues to be, you know, has new allegations and more details and just, you know, fully confirms the allegation. Like, it's still going to be very, very difficult to be Roy Moore. And I think it's important to highlight that and to talk about the fact that I think the reason you're seeing some really bad polling data coming out is to try and salvage, that there's political motivations behind that. Neutral polls show Roy Moore ahead or within a couple of percentage points. And this is really the critical part. They tend not to show the Democrat Doug Jones with 50% or more of the vote, right?

0:33:52 Andrew: Which is, you know, so you know, you can say if you have a poll that is Jones 42,

[0:33:59] more 38 and 20% undecided, right? That's still I mean, look, that's a better poll than most Democrats. Yeah, you're in Alabama, it's still gonna, yeah, probably be a Republican victory, right? So that's the political landscape.

0:34:16 Andrew: What rule, different law, when we asked this question about the National Republican Party replacing Donald Trump back in September of 2016, which is to say this is Alabama Code 17-6-21, which says a nomination for a candidate in a primary or general election shall be finalized by the respective state executive committees not later than 76 days before that election. It is 26 days before the election. And so the ballots have been finalized

[0:34:48] and Roy Moore cannot be replaced on the ballot by law. So then the questions become, what can the Republican Party do if they are convinced that Roy Moore is going to lose? And the first is Alabama does have what's called a sore loser law. It's 17-6-28. And what that law is meant to do is to prevent the Joe Lieberman situation in Connecticut

[0:35:20] in 2006, you might recall. I don't remember that. What was it? Oh, Joe Lieberman was ousted in the Democratic primary by Ned Lamont, who was a popular Netroots candidate on the left. Won in the primary, defeated Joe Lieberman, and then Lieberman

[0:35:40] ran, got enough signatures to be officially on the ballot as an independent. I think the party he formed was called the Lieberman for Connecticut Party, right? I mean, it was, you know, clear. Yeah. He was not a member of any actual organized party, but basically then turned around and ran in the general election and won. And that's why, yeah, Lieberman is still an independent today, even though he caucuses with the Democrats. And the Democrats uh, restored uh, his seniority, even though, you know, he should have been

[0:36:11] and even though he ruined uh, Obama. Yeah, yeah, yeah, yeah, ruined the single pair. We could do, we could do a Joe Lieberman is terrible episode of Opening Arguments if it would be, it would be appropriate. So they made a law to prevent that. Yeah, oh, just Alabama does, right? Um, and the, and the, line a bunch of other states do, um, and and and and and it is, it's a sore loser law. It says if you were a candidate in the primary and you lost, you can't appear on the ballot in the general election. And the last candidate who tried to do that was a Democrat. I'm going to link the case in the show notes. There's a case called De La Fuente versus Merrill. And it was a Democratic candidate named Rocky De La Fuente

[0:36:52] who lost in the primaries and then petitioned to be on the the ballot as an independent, I think, as the Libertarian candidate, uh, and uh, and the court said nope, uh, 17-6-28, sore loser law, you can't appear on the ballot. Wow. So what that means, but that that that I go through that, uh, because there's been a fair amount of reporting that says because of that, uh, if there were orchestrated write-in votes for uh, State Senator Luther Strange, who was the person who lost to Roy Moore in the primary, uh, that that wouldn't count. And And as far as I can tell, that's not true. That's not the proper reading of the law. It prevents Strange from being on the ballot, but it doesn't prevent him from organizing a write-in candidacy. And we've already said 17-6-21 prevents the Republican Party from doing anything about the ballot, right? So the ballots are going to say Roy Moore.

0:37:49 Thomas: So they'll have to do some sort of grassroots, kind of like everybody write in this person if they want to at least get Luther Strange in. But exactly. They, and oh, wait, so they can't change the ballot at all. But could somebody, they could have somebody still enter as long as it's not Luther Strange, as a third party, though, is it too late for that?

0:38:12 Andrew: That it's it's too late for that as well, because, oh, OK, the nominations have to be finalized 76 days before the general election. So it's too late to get him on the ballot as a third party candidate. Well,

[0:38:25] it would violate the sore loser law to get Strange on the ballot. They can't get anybody on the ballot at this point in time because we're within that 76 day safe harbor. So the only thing you can do is orchestrate a write-in candidacy. Yeah. Now, that seems kind of crazy. But but Lisa Murkowski, the sitting senator from Alaska, won her seat in 2010. She was then reelected in 2016 the normal way. But she won her seat in 20 in 2010 after losing

[0:39:05] the primary to a Tea Party candidate. Really yeah she narrowly lost in the primary to Tea Party candidate Joe Miller Joe Miller was getting was being beaten in Alaska which is a very deep red state by Democrat Scott McAdams and so what the what the Alaskan Republican Party did was organized a write-in candidacy for Murkowski and she won in In a three-way race, she got 102,234 votes, which is 40%. Joe Miller got 90,839, which is 35.5%. And Scott McAdams, the Democrat, got 23.5%. Wow, that's sad. 60,045

[0:39:50] votes.

0:39:51 Andrew: And now keep in mind, the Democratic Party looked at that. And once there was an orchestrated, you know, well-organized write-in candidacy behind Murkowski, a lot of, uh, a lot of democratic operatives in that 2010 race encouraged encouraged Democrats to vote for

[0:40:10] Murkowski. Right. Oh, OK. Viewing that, you know, that that that was, you know, likely to give us the lesser of two evils, which indeed it did. Right. It did. Yeah. Cast

[0:40:22] several important votes where she's broken with the Republican Party. So. So it's not impossible to to have a write in campaign work. Yeah, that that that's right. Now, I read the the exact vote totals because Alaska's weird, right? Like it's a giant frozen wasteland. And there were 250,000 total votes in this election. That's a pretty small total in an era in which, you know, presumably the Democrats in Alabama, you know,

[0:40:54] I certainly hope they are mobilized right now. It's why I began with the political implications. It's going to be harder to do in a state, it seems kind of weird to say, in a state that is more compact like Alabama, but nevertheless, right, like Alabama is much more, it's much easier to organize nationally in Alabama than it is in Alaska. So there's a disanalogy, but I do think, right, as they are talking about potentially organizing a write-in campaign. It's worth pointing out that that may succeed, right? And there's still a month to get... Yeah,

[0:41:38] it probably would. I mean, they're really Republican down there. It's Alabama way. So, okay. It is... The problem, What makes it difficult is if there was an organized effort, effort by the Republican Party in Alabama and nationally, and Roy Moore stays in, that there are going to be lots

[0:42:02] and lots of people that still vote for Moore, right? Like that's the real- Is that why they're talking about

0:42:09 Thomas: Doing a write-in for Sessions? How does that work? So he would have to resign or-

[0:42:15] Yeah, the idea, so the strategy behind the write-in for Sessions is twofold. Number one, he has a hundred percent name recognition in the state, so it's easier to communicate that out, right? That they know their old races well, that's exactly right, they all have Jeff Sessions's trading card, which has him in the clan hood on the back. No, well, you know, look, Luther Strange

0:42:41 Andrew: Is one of the things that will happen is if the, if the organized write-in is

[0:42:47] is for Strange, then you will have a number of people who write in Louis String, who write in that Republican guy.

0:43:00 Andrew: And then the election canvassers, which will have representatives from both parties, will sit down in a room and will have to determine. We talked about this way back in OA one through four, will have

[0:43:12] to determine, is a vote for Louis String, S-T-R-I-N-G. Makes the Lisa Murkowski one even more incredible. Yeah. But again, Lisa Murkowski had a really, really... I mean, she is... Murkowski's a longstanding political family in Alaska. I mean, she had a fair amount of name recognition. Sorry, I'm not up to date on my Alaska politics. I didn't know.

0:43:34 Andrew: So that's number one is Jeff Sessions. Everybody knows Jeff Sessions. Number two, Sessions has no desire to be senator from Alabama, uh, he already was senator from Alabama, uh, the, the

[0:43:47] idea is Sessions would win and then immediately resign again and it would trigger a brand new special election in which they would be able to field a different candidate because this special election is

[0:43:59] going to run, uh, until the, uh, the question, I know this is, this

0:44:05 Thomas: Might be stupid, but, but it might not be, because in order to do that, does he have to temporarily resign from being attorney general and would he have to be reconfirmed as attorney general, or is he

[0:44:17] able to, like, step into that role as senator, resign and still be attorney general? Yeah. Here's the answer

0:44:24 Andrew: To that. Article 1, Section 6 of the Constitution says that

[0:44:30] a member of Congress is not eligible to hold an office established by the federal government, which would include the position of attorney general. So, yes, he would have to resign as attorney general, take

[0:44:43] the seat as senator from Alabama, resign as senator from Alabama, and be reconfirmed as attorney general, which would be an incredibly risky strategy. Yeah, we could

[0:44:55] block that confirmation, maybe. Yeah, maybe. Probably not. Oh, that's right. He only needs 50 these days. He only needs the 50 votes these days because of the nuclear option. Um, but yeah, so, um, so, so that's, that's where we are with respect to the election. Um, there's one more thing that, that I want to point out, which is, um, we don't fully know, right? I've cited Alabama Code 17-6-21.

[0:45:23] That says in relevant part, in the event that a candidate submits a notification of withdrawal after the applicable deadline, that is after that 76 days, the name of the candidate shall remain on the ballot and the appropriate canvassing

[0:45:42] board may not certify any votes for the candidate. It. So what does that mean if Roy Moore drops out voluntarily, right? There are two prevailing theories of thought. And I will tell you where I come out based on plain language, but I will tell you there is no case law interpreting Either way, so the first theory, theory that has been offered is if Roy Moore drops out, then votes for Roy Moore do not count, and the election is null and void. That is the position that has been taken by the Republican governor of Alabama and

[0:46:25] by the Alabama Secretary of State. Well, how does that work? It's not just whoever got the second most votes wins? That's the other argument, right? Is, no, no, the law says the candidate remains on the ballot but the canvassing board may not certify any votes

0:46:45 Thomas: Yeah, what would be the point of that language saying they remain on the on the ballot if if it's null and void? I mean, wouldn't it just say it's null and void, there's no ballots, don't don't print the ballot, don't stop printing ballots, that's what it would say there

[0:46:58] you go. Um, don't, you're wasting paper, don't print any more ballots, this election's over, that's what the law would, let's say. I get it. Yeah, no, I think that, right, that that's the answer, right? We have Thomas's second chance law firm. You're damn right, I'm going to draft a letter, Thomas Smith, TTTBE, JDM, MDMA.

[0:47:22] MDMA, yeah, that's good. MDMA.

[0:47:25] No, look, I agree with you. I agree with you, right? In the absence of controlling case

0:47:31 Andrew: Case law that says what that specific language means, you use various canons of statutory interpretation. And certainly the plain language guides us. The fact that the language

[0:47:44] that I read was specifically added to 17621, there's a canon of statutory interpretation that says you don't read words as surplusage, right? If the legislature puts in specific words, all other things being equal, they have to mean something. And I agree with you for the exact reasons that you just said.

[0:48:07] There you go, everyone. Bonus points on the bar exam. Anyway, go on. Yeah. No. So look, what really counts there is what the secretary of state does. Right. Right. Because it's always better to be certified. Right. If the secretary of state says this election is void, then what you have to do is move for an injunction and for declaratory judgment saying, no, no, no, the election is not void. The appropriate remedy is to not certify the Roy Moore votes and to have Doug Jones win, even if he got the second most amount of votes, because the Roy Moore votes would be set to zero.

[0:48:46] But that, you know, we're sort of looking down the line for that. I do not think, and that was sort of the point of going through all of this, Roy Moore's public statements are that he's not going to drop out, and him dropping out would create this potentially confusing fusing scenario.

[0:49:03] So, uh, I don't, I don't anticipate that that's going to change. And I don't anticipate that, uh, that this is going to be, you know, a slam dunk. And I would be very, very skeptical of, of polls, uh, because, uh, there, there are political motivations behind it, but there you go. That's, uh, that's the legal

[0:49:22] status of Roy Moore on the ballot. Hope that I'll be able to give you the name, Don. Easy peasy lemon squeezer, right? Gonna make, take it easy

0:49:28 Thomas: On me, all right. Final question, can the Senate expel Roy Moore if he wins, I think they can. I

[0:49:34] don't know if they will but how does that process work yeah uh we go back again this is uh language this is that thing where I've heard it hasn't happened since the civil war right it it that's right so article 1 section

0:49:46 Andrew: 5 of the Constitution says each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member, right? So, explicitly permitted by the Constitution. Um, in our nation's history, since 1789, uh, this provision has been invoked 30 times, uh, and uh,

[0:50:11] the vote, the two-thirds vote, has, uh, has, has passed 15 of those 30

0:50:17 Thomas: Times. Oh, wait, you're telling me this whole time we've been able to just expel Ted Cruz? Yeah. And yeah, I, I mean, because that is, they would have two thirds support if they needed it, I mean, it would be, it would be 99 to 1, and then the vice president would come in and try to vote, be 100 to 1, he'd be like, I know it's not a tie, but I'm voting anyway, who wouldn't want to get rid of Ted Cruz, we could have done this a long

[0:50:42] time ago. Anyway, go on. Yeah, yeah. And there's some interesting reporting on expulsion

0:50:48 Andrew: From the Senate. So it is true. So 30 times the provision has been invoked. 15 senators have been expelled. 14 of those 15 were senators who supported the Confederacy during the Civil War. And the last senator to have been expelled under this provision was indeed expelled in 1862.

[0:51:11] So you will hear all of that. That's kind of lazy reporting because this provision has been invoked significantly since 1862. And in those cases, right, I mean, sort of like, you know, Nixon was not successfully impeached, right? He didn't have to be because at the time that it was clear that the votes were there for impeachment, he resigned the presidency, um, this provision was invoked against Oregon senator Bob Packwood in 1995, uh, and he resigned, right, rather than go through it, once it was clear, uh, and there, uh, Packwood was, uh, was alleged to have, uh, groped, uh, interns, uh, and uh, and some

[0:51:55] other bad stuff, stuff, um, and so, uh, fairly, uh, again, in my view, talk about, I feel like Roy Moore would be the kind a guy who would make them vote. So if we want this to be the first successful expulsion since the Civil War, I think it could happen. Yeah. And look, we don't know politically. Can he call Trenton to the floor to make an impassioned speech on his behalf? God, I hope they do. I'm dreaming of it. Yeah. And so the incentive for national Republicans to expel Roy Moore is that would vacate the seat in Alabama. It would start the special election election process all over again. And the Republican governor of Alabama could appoint an interim senator to fill Roy Moore's seat. So that would be the incentive for the Republicans to do that. And then, you know, it would put the Democrats in kind of a difficult position, right, of, you know, do you give the Republicans the vote? Because they don't have two-thirds, obviously. Obviously, you've got to get them to 67.

[0:53:02] Yeah, that is interesting. Yeah. Could you withhold your support on a political basis?

0:53:08 Andrew: I think we're going to have to reserve those questions until we see what happens on December 12th. But yes, if Roy Moore wins, the Senate can, with a two-thirds vote, expel him from their ranks, even though that hasn't been done in 150 years. There

[0:53:27] you go.

0:53:28 Thomas: Yeah. Yeah. Interesting. All right. Well, that's got to be most, pretty much all your Roy Moore questions. And it's more than you'd ever want to know about Roy Moore, but there you go. There's the legal ramifications and consequences. It sounds to me like the expelling thing. I kind of got my money on that. I don't know. I mean, maybe the write-in, what would you put your money on? Let's get into the prediction business. What do you think? From

[0:53:53] down there in New Zealand, now you're a day in the future, so you have an unfair advantage. But, well, that's, that's, that's a fair point. Um, uh, it, I, I think I am going to go with orchestrated write-in campaign, uh, and, um, and I did, why not, I'm, I'm here, I'm in

0:54:12 Andrew: I'm in the land of of milk and hobbits and um and I'm gonna say the orchestrated write-in campaign

[0:54:19] winds up with, uh, Democrat Chuck Norris, senator Chuck Norris. Yeah, exactly. I'm going to go with Democrat Doug Jones winning that seat. But I'm picking that happy outcome, knowing that it is going to require a tremendous amount of organizing and diligence and effort. And hopefully our listeners in Alabama are

[0:54:44] up to that task.

0:54:46 Thomas: Here's my prediction. You ready for this? I was going to go. I know I led you a certain way. I predict Senator Roy Moore and then nothing happens. Yeah. That's what I predict.

[0:54:55] We live in the age of Trump. We do. Senator Roy Moore, everybody. Yeah. What he'll do is he'll agree, you know, he'll like make a deal with Republicans and give them the vote, you know, that they need on stuff and in

[0:55:08] order to not be expelled. That's my prediction. All right. Yeah. Yeah, it is time for our favorite event of the week. And that is thanking our all time Hall of Famer patrons. And

[0:55:20] They are Heather Loveridge, Sakashite Fukasumi predicted all this years ago. Wow. Kevin and Benedict. Chrissy offers job coaching at blueprintgreen.us. Use code OA17 and save. Violet Page Hall. And finally, thank you. Thank you. Thank you. The Grand Duke Nihil. Danny Baker at Combat Nonsense. Greg Sullivan, C6Sara, Roger Metcalf, and the Hired Goons, Rhonda the Dork, Rebecca Smelser, our first patron, Dan Irizarry, Adopt a Homeless Pet and Oppose Decloning and Ear Docking, The Wayward Willis, Philip Stromberg, Tricicular Manslaughter, CampQuest.org, SquickThinger, Legalize the Purge Hospital via JT Matthew Vernon in Soviet Russia, fake news supports POTUS, Maleka Chandler, Jesse Stud is my favorite lawyer, Andrew is a close second, Jog, a co-host of the Shifty Bastards Transformation Podcast,

[0:56:17] and Keith Davies. Thank you guys so much. Yeah, and thank you to Jeffrey Maynor, to Jared, only drinks Yodel Mountain Brewing Company Russian Imperial Collusion, Jim Grove,

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[0:57:10] Zabby, Cthulhu is the real master of all our tentacles, and Conrad Michaels. Thank you all so much for being our Hall of Fame patrons. Absolutely. Really, you make the show happen. Hope you're enjoying the

0:57:22 Thomas: Bonus stuff. Already coming up on another month of that. So, so another iteration of Law'd Awful Movies

[0:57:28] and such. So looking forward to that. Yeah, I have a great idea for Law'd Awful Movies 12. So I think you're going to look forward to that. Well, I think we already did Law'd Awful Movies 12. Well, I had a great idea for Law'd Awful Movies 12, and I have an even better one for Law'd Awful Movies 13. Patreon.com/law. Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:57:50 Thomas: It is time for the easiest segment of the week, and that is nailing this super easy bar exam. I am just so

[0:57:56] close to practicing law with Trenton. Yep. So here we go. Special thanks, by the way, to our friend Charone Frankel of the delightful podcast, Habeas Humor. I found

0:58:09 Andrew: Myself in New Zealand and did not have the cookie in place for question number 50. And rather than filter through 49 bar exam questions to find the one, one, 11, I love that she sent me a bar exam question. So thank you, Charone. A little bit of a curveball

[0:58:28] for Thomas. Yeah, I'm very used to the other source. I think I've finally gotten that one figured out. So I cry foul. And this, by the way, this is for the D-minus, Thomas. You are 29 of 49. For the D-minus. Yeah. That will take you to 30 of 50, which I think is... uh, uh, I seriously think that's, that's great. Like, um, that, that, that's a, that's a tremendous accomplishment. It's a tremendous accomplishment either way. All right, let's get into it. Cruiser and Flash were driving down Main Street in their distinctively painted, carefully restored old American automobiles. When Cruiser's vehicle bumped lightly into Flash's car, scraping away some paint. Cruiser and Flash both got out of their cars and examined the damage. After which Flash made some disparaging remarks about

[0:59:17] Cruiser's car.

0:59:19 Andrew: Cruiser slapped Flash in the face. Flash punched Cruiser in the nose. Cruiser seized Flash and a half nelson and threatened and started to ram Flash's head into the side of Flash's car. At this moment, Flash's brother, Glitter, Gary Glitter maybe, uh, who had just driven by, leaped from

[0:59:37] his car, pulled a knife, held it to Cruiser's throat, saying, "Let him go or I'll cut you." I love, love it. Sure, this is fantastic. Like, she's the West Side. Make this one up. Yeah, yeah, the Sharks and the Jets are really going at it in this question. Cruiser released Flash but subsequently sued Glitter for assault. What is the result? A, Cruiser wins because Glitter, Glitter threatened him with deadly force. B, Cruiser wins. Unless ramming Flashes head into a car is considered a deadly attack. See, Glitter wins because Cruiser started the fight by slapping Flash, or D, Glitter wins because he and Flash are relatives.

[1:00:22] This is the same legal system of the other questions. Exactly. This is a different

1:00:28 Thomas: Who's in charge of the bar. Is there, because this is a totally different language and everything, uh,

[1:00:35] and I will say, this is, I, I think this, this is more, in any event, this

1:00:41 Andrew: Seems more like the questions that, uh, that I use, really answer on the bar. Yeah, oh, okay, up to and including the, uh, the answers that, that may or may not be valid answers, but

[1:00:54] nevertheless sound ridiculous. Yeah, I won't characterize, but, uh, I think that there's a tough one. Question is ridiculous, but 50 is 50, is a 50 is a benchmark, it's the final boss, yeah, I gotta, I gotta beat Cruiser, Flash, and Glitter, yeah, defeat them all, it's a three-headed monster of

1:01:12 Thomas: A boss here to get to the my coveted 60. Well, all right, I'm going to eliminate this,

[1:01:19] is a little, this is a little weird, but I'm going to eliminate C, Glitter wins because Cruiser started the fight by slapping Flash, um, because I don't think that justified. I don't think you can go back to like whatever the first event was and say that, you know, if it was the other person, then it's okay to to you know threaten

[1:01:44] someone with a knife. Okay, doesn't seem right to me. Strong, strong stance that the elementary school principal rule does not apply to, uh, suing for assault. Okay, and I'm, I'm going to eliminate D, Glitter wins because he and Flash are relatives. I guess the logic of... Now, will that be one of those ridiculous questions, you know, answers that is true? I hope not. But it sounds like the logic is, okay, if you're related to someone and they're in danger, then it's okay or something. I don't know, what otherwise what the logic would be. So I'm getting rid of C and D. So that leaves us with A, Cruiser wins because Glitter threatened him with deadly force, that seems very straightforward. And B, Cruiser wins unless ramming

[1:02:29] Flash's head into a car is considered a deadly attack. You know what? Call me crazy, I think I'm going to go with B because I think that the only justification for using a weapon in that way is if someone is in, you know, like deadly peril, if they're actually... So as weird as it is, but this is such a weird, weird question. I think I'm going to go with B because if you're ramming someone's head into a wall or to a car, you know, I, I think maybe that could

[1:03:01] be justification for someone using a weapon to try to stop you. So I'm going to go with B. Awesome. And, uh, if

1:03:07 Andrew: You are anyone other than Charone Frankel and you want to play along with Thomas, Thomas takes the bargain. You know how to do this by now. Just, uh, share out, uh, our announcement tweet or, uh, on Facebook, our posting

[1:03:20] of the episode, include the hashtag TTTBE, give us your answer, give us the reasons therefore, and, uh, we will select a winner, announce that person on next Tuesday's show and shower that person with never-ending fame and fortune. Fame and fortune not guaranteed. All right, well, thanks so much for listening. Thanks so much, most of all, for patronizing

1:03:38 Thomas: Us. You make the show happen. And Andrew, thanks for taking time out of Hobbit land to, uh, to record

[1:03:44] Accord. That's much appreciated. Vital, rapid response. So thanks for doing that. Fantastic. It's been one of the highlights of

1:03:50 Andrew: My trip. So thanks for scheduling around to make sure we can get these shows

[1:03:57] out. All right. We'll see you on Tuesday. Stop breaking the law, asshole!

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