OA124: Happy Thanksgiving!

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 Withdrawn.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 Withdrawn.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 Withdrawn.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 124. I'm your host, Thomas Smith. Out over there is

[0:01:24] your now Australian host, Andrew Torrez. Good eye, mate. I am not going to attempt an accent. If I wouldn't do one in Sydney, I'm not doing one on the air. So you haven't converted.

0:01:37 Thomas: You're back to, yeah, did you have any legal system conversions? Did you have anything over there that you

[0:01:43] saw that you're bringing back to bring back their wisdom and apply it to the US system? Yeah, so two things. I mean, first, I was there, I was at Australian Skepticon, I gave my talk on skepticism in

0:01:55 Andrew: The law, and I talked about the Australian Sovereign Citizens Movement, which is awesome. It is imported from the US, so it is one of our high quality exports out there to the other side of the world. And then as far as I can tell, Australia doesn't have tort law. And I based this on

[0:02:13] my trip to the zoo where we wandered into this encampment That has, you know, it was there were no fences. There were like animals kind of hopping around. And we were on a tour with a zookeeper who was able to like bribe a wallaby with treats long enough for those of us in our party to pet it. And then immediately when

[0:02:40] you stop giving the treats, he was like, oh, yeah, if you try and touch it now, it will bite you. And we're in there with like children who are watching this. And so then we wandered away and then another couple came up and started to pet the wallaby and the zookeeper turned around and was like, oh no, don't do that because it'll bite you. And there's no doubt in my mind that after we left that they tried to pet the wallaby and probably got bitten. Uh, the other zookeeper said he had three jobs at the zoo. He was, he had a zookeeping job, he was in charge of the big cat enclosure, he did tour guides, and also he was head of the first aid team. And so I asked him, like, how, how much first aid do you do? And he was like, oh, I've had 47, uh, people who've been bitten or seriously injured at the zoo this year. And, uh, I just bit down hard on the inside of my mouth and I'm like, well,

[0:03:30] all right, apparently tort laws don't exist in Australia. Well, I think they just, everything kills you in Australia, so just

0:03:36 Thomas: You, they go to the zoo to merely be bitten, like they're, the zoo is a nice, like, oh, I can get, be bitten and then I don't die, that's nice, but outside of the zoo everything that bites you is instant death, I think that's how it

[0:03:49] goes. It could, you know, yeah, they have like 40 of the top 10 poisonous snakes, they've got everything there, it's crazy. Oh yeah, no, I was seriously reading up, uh, one of our, our mutual friend, no illusions,

0:04:01 Andrew: Spent, uh, three or four days in the Australian outback, and I was thinking about joining him on, on, on part of that, and then my flight got delayed and all sorts of bad stuff happened, but I was reading, like, what to do if you, know, like, how to recognize which snakes are poisonous and, you know, how to avoid

[0:04:19] and like the guy, there's a mnemonic, it's, if you see a snake just run, that's all. Yeah, exactly, I mean, that's what the guide said, the guide was like, you will not be able to determine if it's poisonous, or I should say venomous, before the, uh, the pedants come after us, uh, you will not be able to determine if it's venomous or not. And if you're

[0:04:38] in the outback, like, you won't be able to get, no one can hear you, back to a hotel in time, so literally the advice was, don't get bitten by a snake, so

[0:04:49] so that's fun. Yeah, yeah, but I'll say this, uh, I don't think, I think you were on a continent on which there were no mass shootings for the entire time you were there. So, yeah, because Australia had one like 20 years ago and then they got together and banned all, we don't like that. Yeah, I don't know why they don't do the same thing with snakes, but that's okay.

0:05:09 Thomas: All right, so in terms of it, so that was your Australia trip, glad we covered it. A couple, let's see, announcements. We've got to redo the intro, and you know what that means. That means a patron thread where you get to submit your quotes. And remember, submit a video or audio file and give me the timestamp. I get literally

[0:05:28] hundreds of them, and I can't go through your 90 minute movie to find the the quote you're talking about. But, uh, but there's always, don't you remember the thing in that episode of that show that once aired, Futurama, one time Bender says this, like, I can't, sorry, I love Futurama, that part is good, and I love Bender, uh, so yeah, send them in, it's, we always have way more than we can even use, so I'm not worried about that, but your favorite ones you want to keep trying to get them in, resubmit, definitely, because each, each time this

[0:05:58] comes, we pretend as though it never happened before, so make sure to resubmit. And you can also favorite the ones that you like on Patreon, you know, you can hit the little heart. And I do tend to look at how many hearts something has to determine, you know, maybe I ought to use that. So that's exciting. And then also we've got to talk about net neutrality, but we are going to do that on the next show. We do have to record a little bit early because of Thanksgiving. And Andrew, we're still waiting on some pending

[0:06:29] uh, stuff for net neutrality, is that right? Yeah, the FCC is supposed to release its

0:06:35 Andrew: Order today, and as of our record, they have not. So I'm going to continue to give up part of my Thanksgiving plans to refresh the fcc.com website, because you know that's a long

[0:06:48] -standing story, that's how the pilgrims did it, I think. Yeah, right, pretty sure. Yeah, we are going to consider what, uh, the The FCC has called the policy to preserve the future of Internet freedom, which is apparently going to be released today. There have been some advance stories suggesting that it's going to be pretty extensive. But, but I'd like to have that, those specific details. And as of the time of our record, they have not yet been released by the FCC. So we're waiting, we're watching, and we're going to get you breaking news on that on a Breaking News

[0:07:25] Tuesday. Ooh, Breaking News Day. All right, well, with those exciting announcements aside, let's get to today's episode. Torky, torky, torky. Torky, torky, torky. Torky, torky, torky, torky, torky, torky, torky. Andrew, what's the real meaning of Thanksgiving? I thought many of our listeners may know that when I worked for my old firm, Zuckerman Spader, I was one of the founders and frequent authors of the firm blog,

[0:07:57] Suits by Suits. I did not have the freedom I enjoy today to be, but I still did a couple subversive things. I started the very first year that we did the blog, I did a post on the real meaning of Christmas, and I snuck in some subversive pro-atheist stuff on the firm blog. And then after that, that kind of started a pattern of doing the real meaning of X holiday, and I got some of the other co-authors involved with stuff. So I wrote a piece on the real meaning of Thanksgiving, and I'm going to link that in the show notes. And I thought I would share that with, uh, with our listeners, because hopefully you're gonna get this, you're gonna be hanging out with family, you're gonna be in a post-turkey coma, and rather than talking politic, right, this is the show that preps you for arguing with your Uncle Frank, now you can sit down, watch some, uh, football games, and just share some delightful bar trivia, so we're bringing, we're really bringing families together.

[0:09:00] that's that's what I'm well this is so So let's see, people have this Friday, so this will be like the next day you're

0:09:06 Thomas: Trying to repair those relationships that you ruined on Thursday by bringing... Because there was that poll that went around that said everybody was worried about Trump ruining their Thanksgiving. Did you see that? It was like... I did. Yeah, it was astronomically up. Like Obama was... You thought Obama was divisive. Well, no, Trump is the most divisive thing that could happen on the holiday. So So this is, I suppose this will go some length to maybe repair the divide.

[0:09:34] Right. So Thomas, when was the first Thanksgiving? Oh, the first Thanksgiving. Well, I feel like this is trivia, so it's got to be either 30,000 BC or it'll be the year zero. No. No, I'm going to take a guess that it was like something crazy, like in like the 50s or something.

[0:10:00] No, no, it's probably older than that. Let's say, so I mean, allegedly the real one would have been what, like in the 1500s? I'm terrible at history. I didn't, I never actually had a history course in my high school. It was just so you know, I've had to try to learn all my history from since then. There you go. So opening

[0:10:20] arguments slanders the California high school system. Yeah, yeah. I never had a history. I had, it was terrible. Well, actually, one year I had a teacher that was just like perpetually ill. And so we had like substitute teachers for an entire year of history. And so it was always like not right. Like

[0:10:38] nobody had their lesson together and I learned nothing. But anyway. Did you have dittos by the time you were in high school, or were you past the age of dittos? Oh, were you just like a worksheet or something or yeah, yeah.

0:10:50 Thomas: I think we were, they were phased, the dittos were being phased out, I was in, as some old teachers would still have dittos, but we didn't, I don't know, they were a little, little rare. Um, I'm gonna go, okay, I'm filibustered.

[0:11:03] Enough, I'm gonna take a funny guess, and I'll guess it was like 1927. Um, well, so you might be right in our later segment, but I was thinking about the, the actual, the right, the, the, the, the historical legend, right? So, oh, okay, it is typically associated, as as you point out, with

0:11:22 Andrew: The 1621 feast at the pilgrims at Plymouth Rock in Massachusetts.

[0:11:28] Right, and that is, that's the, the pilgrim sitting down with the, I thought you were trying to trick me, so I went, I went, I went with an extreme funny one, but But okay, you weren't trying to trick me. I am trying to trick you, right? Okay, okay.

0:11:40 Andrew: Because that's, so that's the answer I expected you to give, right? Which was 1621, Pilgrim's Plymouth Rock, Swanton.

[0:11:46] You expected me to remember the- Yeah, I did. Because you have an encyclopedic knowledge of 17th century American history. You know, I expected it. I think this maybe reinforces that we

0:11:59 Thomas: Don't prep the bar exam question, like this is all on the fly, when I answer, the first Thanksgiving was in the 1920s.

[0:12:06] that stays like there's no No, I don't Google it like that. Just that's my answer. Official final answer, Regis. Right. So that story, as it turns out, is almost certainly fake news.

0:12:19 Andrew: All right. There is a there is a book called The History of Plymouth Plantation. It was written by William Bradford, and there was a letter from Edward Winslow to William Bradford that is talking about this supposed first Thanksgiving, but pretty clear that that's all made up. And as it turns out, there are three. So that was the 17th century. That was 1621. There are three separate 16th

[0:12:44] century claims that are all vying for the title of First Thanksgiving. Okay. The first is from the Texas Society of Daughters of the American Colonists, and they allege that the Spanish conquistador Francisco Vazquez de Coronado celebrated the first Thanksgiving

[0:13:03] in Palo Duro Canyon in Texas in May of 1541. uh-huh and so in 1959 the society of daughters got, uh, the town of Palo Duro Canyon to erect a little plaque that reads, "Feast of the First Thanksgiving, 1541." The only problem with this claim is that almost everybody who's investigated it believes that this was a mass, it was a celebration of the Catholic Feast of the Ascension, I don't know what that is, but it's a thing, and not a Thanksgiving, but you know, there you go, Texas Society Daughters of the American Colonists says, "First Thanksgiving, 1541." The real problem with it being a Feast of the Ascension is that what we think of as a traditional

[0:13:41] element of Thanksgiving is bringing together people of two diverse groups, right? So, I quote from an article analyzing it that says, "If Thanksgiving had been about religion, the pilgrims would never have invited the Indians to join them. Besides, the pilgrims would have never tolerated festivities at a true religious event." Indeed, what we think of as Thanksgiving was really a harvest festival, so Thanksgiving, not a religious festival, definitely not the

[0:14:05] Catholic Feast of the Ascension, sorry Texas. All right, second claim comes from Saint Augustine, Florida, and ostensibly dates back to 1565, by Spanish conquistador Pedro Menendez de Avila, and that Thanksgiving is involved, uh, said to have involved sharing the feast with local Native Americans, in in this case, members of the Timucua tribe that are indigenous to northern Florida. And then, and finally, there's another Texas claim. This is a city called San Elizario in Texas, outside of El Paso, who claim that the first Thanksgiving celebration took place in 1598 with Spanish conquistador Juan de Onate. And again, I apologize for

[0:14:56] my, uh, Spanish pronunciation, those, uh, doing my best here, your last name's Torah, so there you go, pretend you're doing it right and everybody else is wrong, just, yeah, I'm assuming we have at least one Hispanic listener, so, you know, um, and I know my my extended family listens to the show, so, uh, so there we go. Not the pilgrims, three separate, separate stories about Spanish conquistadores having festivals with local Native American tribes, all of which predate Plymouth Rock by 30 to 70 years. Now, how do we then transition that to today, right? So, okay, we're sort of going back into what's the first of these crazy 16th century feasts. We want to know about today, right? We want to know about the turkey and the uniquely American holiday of gluttony.

0:15:53 Thomas: It really is amazing. Yeah, because with so many of these things, when you look in the history, like Christmas or something, or Easter, and you're like, how do we get to the chocolate in the in the baskets and all that, and

[0:16:06] then you try to look into, and people are like, we have no idea. We have absolutely no clue. Like there's a couple of guesses maybe here. It's amazing how these things evolve, but maybe you'll give us a better answer. Let's see. Well, no,

0:16:18 Andrew: No. There are a great many things that we just don't know about. But we do know the first person who really agitated for Thanksgiving. And her name is Sarah Josepha Buell Hale. She

[0:16:31] wrote the poem, Mary Had a Little Lamb. Oh. And she also wrote five separate presidents over 20 years trying to get Thanksgiving recognized as a national holiday. So she started in the 1840s where Thanksgiving was a regional holiday. It was celebrated in New England as part of the whole sort of Puritan myth, but it wasn't celebrated elsewhere in the country. So

[0:16:56] Ms. Hale would write editorials for a book that was delightfully called Godey's Lady Book that was accompanied by recipes for turkey, stuffing, pumpkin pie, and all of the other traditional

[0:17:09] foods that we now think of as Thanksgiving foods. Um, so those, all, I should, I should add as a digression, I, most people know this one already, right, that that all of the Thanksgiving foods were definitely not at any of these 16th and 17th century Thanksgiving feasts, right, like that the Native Americans didn't eat

[0:17:28] potatoes, they didn't have a can of cranberries that's shaped like the can, like that comes out in the exact shape of the can, you're telling, no they had that, you're just saying they didn't have the other stuff, right? National Geographic recommends, there's a link in my article that will be linked in the show notes, National Geographic says, if you're going to recreate the Wampanoag, uh, Thanksgiving, that you should serve skunk blood pudding and boiled bread. Way

[0:17:53] ahead of you, so that's already, so we, so we are doing it right, okay, yeah, yeah, so you've confirmed we are doing, so there is a basis of what skunk, skunk sirloin is, that's that's always been my family's, uh, meal on Thanksgiving. So so Hale came up with all the Thanksgiving foods. Um, and then, and this is what I find most amazing, in 1863 she convinced President Abraham Lincoln to recognize Thanksgiving as a national holiday. And I, it, wow, what I write in the article was, Lincoln, who, as it might be pointed out, had an awful

[0:18:31] lot, lot on his mind at the time. Yeah, but so yeah, he was a little busy, but not too busy to set aside what was then the fourth Tuesday in

[0:18:43] November as Thanksgiving. I really wish we had, like, a Lincoln letter that was like, "Hey,

0:18:49 Thomas: Um crazy lady who keeps uh writing me about some nonsense holiday that didn't happen I I

[0:18:56] got, I'm a, I got a little on my mind right now, I don't know if you follow all the news, but things are tense. I don't even know why I'm taking the time to write this. I wish we had that. But in Lincoln's famously amazing

[0:19:09] writing skills. Yeah, right. That would be great. We don't have that. So what we do have is

0:19:15 Andrew: Her finally wearing him down. He declares Thanksgiving as the fourth Tuesday in November, and then it was not moved until Thursday until 1939 by FDR. And you want to take a guess as to why FDR moved Thanksgiving from the

[0:19:33] fourth Tuesday to the fourth Thursday in November? Yeah, I don't know. Let's see. I'll

0:19:40 Thomas: Eliminate B and C, but I'll stay. No, I don't know.

[0:19:44] Tuesday instead of a Thursday. Doesn't have anything to do with elections, does it? No, I don't know what it would be. I'm not sure. No, turns

0:19:51 Andrew: Out same reason as today. We were coming out of the Great Depression and FDR wanted to lengthen the holiday shopping season. So he wanted Thanksgiving on a Thursday so that we could have what is now known as Black Friday, and

[0:20:03] people would be out buying Christmas gifts. Um, so, uh, as a result, there was a brief period in which, uh, the, uh, the members of the Federalist Society, right? Those people who believe that, uh, state, state law should trump federal law, um, continued to celebrate Thanksgiving on, uh, the last Thursday in November. Uh, and others then celebrated it on the second to the last Thursday in November. And so in 1941,

[0:20:34] in Texas, uh, they celebrated two Thanksgivings. I think that should come back, we should have, oh yeah, we should have back to back to back weeks of of Thanksgiving. Uh, and today's polarized climate, I don't think our families would survive it. And and, uh, you know, Congress may not be able to pass laws today, but in 1942 they could still pass laws. So again, Congress, you might recall, 1942, Congress again is a little bit busy, right, we're fighting World

[0:21:05] War II. Yeah, but Congress saw that Texas celebrated two separate Thanksgivings, and then passed a law, a law that said, yeah, Thanksgiving would be the fourth Thursday in November. By the way, they saw all this like racial injustice, and and, you know, they've, they, they hadn't, they waited a while for, like, the Voting

0:21:24 Thomas: Rights Act and Civil Rights Act. But they saw Texas, was so they took a gander over toward Texas in 1942, and we're like, what's the only thing wrong with Tech? Oh, it's Thanksgiving. There's two Thanksgivings. We need to immediately remedy

[0:21:37] that. Yep. So Texas, because of Texas, Congress passed a law saying that Thanksgiving

0:21:43 Andrew: Would always be the fourth Thursday in November. So sometimes it's the last Thursday of the month, sometimes, like this year, it's the second to the last Thursday of the month. And once every 150 years, just happened four years ago, the Thanksgiving coincides with the first day of Hanukkah, because of the way the Jewish calendar works. So it

[0:22:01] creates this bizarre Thanksgiving where you have both Thanksgiving and Hanukkah on the same day. And Hanukkah I know is eight nights, but the first day of Hanukkah would fall on Thanksgiving or the first night of Hanukkah I guess would fall on Thanksgiving. I have no idea how that works. I suppose some of our Hanukkah-celebrating Jewish listeners can write in and solve that problem. But that's the way it's been ever since. 1942, Congress passed a law because Texas wanted to have two Thanksgivings,

[0:22:33] and by God, we can't have that. States' rights. Yep. So last question. I could do a couple more trivia, but last question. Who do you think was the first U.S. president to ceremonially pardon a turkey? Yeah, either Obama or, no, uh man, who would that be? Who do you think that would be? Let's see, well, you just, I'll go with, uh, Dwight D. Eisenhower. I don't know. All right. I, no, is that your actual final answer? Abraham Lincoln. No, uh, Taft. I don't know, I'm just guessing president sound. Calvin Coolidge, final

[0:23:13] answer, Calvin Coolidge, final answer. I thought, thought you were going with Taft because he is famously the nation's fattest president. Yeah, no, he ate the turkey, there was no pardon, he was like, why would I do this, I declined to pardon. And also I think the best ceremonial turkey pardoning is uh, there's, there are clips on YouTube of then Alaska governor Sarah

[0:23:38] Palin ceremonially pardoning a turkey at a turkey, turkey slaughtering facility, so there's like literally five feet behind her are turkeys being shoved into this machine that looks like the wood chipper

[0:23:50] from Fargo, um, and uh, it's just, it's just delightful and hilarious and and cruel, but you know, all of those things. Um, no, turns out your first instinct was was closer to being correct. Um, the first U.S. president to ceremonially partner turkey was President George H.W. Bush in 1989. Yeah, so totally recent, you know, in in legal terms, 1989 is recent. By, yeah, by the Alley McBeal rule, uh, uh it's relatively recent. Uh, not a long-standing tradition, doesn't go back to Eisenhower, doesn't go back to Taft, doesn't go back to Coolidge, doesn't go back to Lincoln, goes back to

[0:24:27] poppy Bush, 1989. So there you go. Well, there you have it. Yeah, they, all the other turkeys before then were guilty and not, not deserving of a pardon. But we will do a segment on turkey, I've never understood

0:24:39 Thomas: The turkey pardon, here we're going to slaughter infinite of you, but one or two of you, you're good, if one or two of you, you're not, guilty enough of whatever turkey crime the other ones are guilty of, just being the crime of being a turk, legal question, Andrew, what, what crime are they being pardoned

[0:24:58] of, like, what were, what were they convicted of? It might be a federal one, it is intended to be a turkey, right? Yeah.

0:25:04 Thomas: Yeah, we know it's not a state crime. All right, well, that is the true meaning, I just realized

[0:25:10] Donald Trump is going to pardon a turkey ceremonially, and yeah, I've already seen all the jokes, they're pretty good, though, just like Flynn dressed as a turkey, like, goes, there's some good turkey pardon humor going around the internet, pretty good, pretty good. Yeah, um, all right, well, thank, thank you for giving us that. I did not expect that lawyer Andrew Torrez Esquire would be teaching us the true

[0:25:35] meaning of Thanksgiving this holiday season, but he has. There you go. I want Linus to stumble through here and clutching the blanket and reciting some passage from Corinthians. No, I think I am very restrained and I talk about important things. I'm going to do very restrained if I use it at all. I'm going to do very restrained. I find it tremendous. It's a modern form of communication. There should be nothing you should be ashamed of. It's where it's at. All right. Trump's tweets in court. Andrew, we've talked about this a little bit, how much Trump's tweets are admissible. And he's definitely hurt his own interests there a few times. But we've got some news here. Judge considers Trump tweets in a FOIA request. And also, uh, the injunction, there was a permanent injunction issued on the sanctuary cities case, I, I saw that recently, so what are we talking about here today, more of Trump's uh tweeting against his own interest? Yeah.

[0:26:35] So, I, I wanted this to be a happy Thanksgiving episode, so I figured this would be another happy

0:26:42 Andrew: Moment where Donald Trump is undermining his own efforts because he just can't stay

[0:26:48] off Twitter, um, so, uh, so here's, here's the background, um, the background starts with the Freedom of Information Act, which is 5 USC section 551 at sec, that allows ordinary individuals, and it is most frequently used by reporters and by lawyers, to file a request with federal government agencies that requires them to

[0:27:13] produce agency documents so you can conduct, conduct investigations. Now, there are a bunch of exceptions to the FOIA, which allow government agencies to refuse to turn over documents, right? And one of them is section 552, and it contains all the list of exceptions. And one of those exceptions are matters that are properly, quote, kept secret in the interest of national defense or foreign policy. So, you know, look, that makes sense, but you would also think there's going to be some overbreadth. And that was

[0:27:44] tested in the 1970s, in 1975, by a reporter from the Los Angeles Times. And what he was investigating was a crazy, a truly insane Cold War project, um, in which the United States engaged a company called the Global Marine Company to build a ship to go out and try and salvage

[0:28:10] a sunken Soviet nuclear submarine. And so that doesn't sound that crazy, what is, I thought you were gonna tell me it was like the men. Yeah, well, you know, it, it, right, it was not one of these, like, you know, we've spread toxic waste over our own people or whatever, but it was, yeah, yeah, we've rolled around in it to try to gain superpowers,

0:28:28 Thomas: Or like taking a bunch of, uh,

[0:28:31] hallucinogenic, uh, stuff, to LSD, yeah, yeah, yeah, fainting goats, and so all

0:28:37 Andrew: Right, I will rescind the adjective crazy, because in the Cold War, this is probably one of, one of the most sane things. Yeah. But, but so nevertheless, rumors were abounding that the U.S. government was going out to try and recover this sunken Soviet nuclear submarine. And the thought was that was going to drastically increase tensions

[0:28:58] with the Soviet Union. And so what the L.A. Times wanted to do was to force the government's hand. Right. So they requested documents about the ship. Now, they knew that the government wasn't actually going to release any of the documents related to the ship, right? But what they wanted to do was to create a kind of a catch-22 type situation. They figured, okay, we'll file the request, and either the government will grant the request, and then we'll have all the documents about this salvage ship, and it'll be great. We'll run the story. Or they'll refuse to grant the request on the basis of national security, which will at least confirm

[0:29:36] the fact that there is this secret ship out there, right? Interesting. So yeah, so pretty clever journalist, uh, but unfortunately, uh, the lawyers at, at the CIA, uh, were even more clever than the journalist, and so they came up with the following response, and what they said was, we can neither confirm nor deny the existence of the information requested, but hypothetically, if such information were to

[0:30:08] exist, the subject matter would be classified and could not be disclosed. Is this the origin of neither confirm nor deny?

0:30:14 Thomas: And it's, that's indefinitely in the lexicon of every spy TV show and everything, is that where this

[0:30:21] comes from? This is the origin of neither, neither confirm nor deny. That's so cool. Two lawyers

0:30:27 Andrew: In court, this is now called the Glomar response, G-L-O-M-A-R. And that is the, you know, contracted form of Global Marine Company. So their ship was called the Glomar

[0:30:39] Explorer.

0:30:40 Andrew: And nowadays when you answer, we can neither confirm nor deny, it's a Glomar answer,

[0:30:47] right? Some more trivia for you. Yeah, yeah, yeah. This is a trivia-laden episode. So the last really landmark case to consider the Glomar defense was ACLU versus the CIA, 7-10, F-3rd, 4-22, 2013. This is a court of appeals for the D.C. Circuit case. It is a Merrick Garland opinion.

[0:31:10] Merrick Garland, who should be on the Supreme Court. Supreme Court Justice Merrick Garland, yeah. Yeah, Supreme Court Justice Merrick Garland in an alternate universe. Um, and, uh, and that case was about, uh, FOIA requests regarding Obama's drone strike program. Okay. And the Garland opinion goes through and basically limits the way in which a federal government agency can file a Glomar response. Right. Right. So I should say the Glomar response. I didn't I didn't add this part. It worked. Right. Like that was taken to court. And and the Supreme Court said, yeah, fine. Right. Like in order to keep national security interests, you can then say we refuse to disclose whether

[0:31:54] there is a document or not.

0:31:56 Andrew: But that's been limited. And I'm going to just read from page five of the ACLU versus CIA, from the Garland opinion. He says, "In the Glomar context, the specific information at issue is not the contents of a particular record, but rather their existence at all." Right? So, accordingly, the plaintiff can overcome a Glomar response by showing that the agency has already disclosed the fact of the existence or nonexistence of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect. And, more importantly, under FOIA, the burden is on the agency to sustain its action. Right. And so, and the court can review that agency's Glomar response, what they call de novo, which means each new court is not they're not bound by the fact

[0:32:46] finding of the prior court. So so essentially the test that that opinion sets forth is, quote, ultimately, an agency's justification for invoking a FOIA exemption, whether directly or in the form of a Glomar response, is sufficient if it appears logical or plausible.

[0:33:04] So that's the test. Right. And now what does this have to do with Trump tweets? You might be putting it together. Yeah. We yeah, we fast forward to today. And this case actually involves a friend of mine, former Zuckerman Spader partner, Amit Mehta, who is now a judge on the United States District Court for the District of Columbia.

[0:33:22] He had a case before him that was brought by Josh Gerstein, who's a reporter for Politico. And what he, and what Gerstein asked for, was he asked the FBI for information about the Russia dossier. Right. The two page document that has various salacious details about Donald Trump and that, you know, involved being in a hotel room and, you know, all sorts of stuff. We've covered this. Um, the government gave, because all government agencies now basically give the Glomar

[0:33:55] response when you're sort of treading for anything. Yeah, exactly. Right. So he said, well, you know, so the government said, so the FBI said, "Yeah, we can neither confirm nor deny the existence of the Russia dossier, but if it were to exist, the subject matter would be classified, could not be disclosed." Um, and Gerstein said, no,

[0:34:13] wait, like, you can't do that, because Donald Trump has tweeted out, and I'm going to read the Trump quote. Workers of firm involved with the discredited and fake dossier and fake

[0:34:26] dossiers, and capital letters, "Take the Fifth." Who paid for it? Russia, the FBI, or the Dems, or all. Right, um, now this is an oral, got in a big room and colluded against Trump together, that's right. So, but, but think about how this implicates the Glomar response. Right? The question is that, and this is what Judge Mayda now has to figure out, uh, is the fact that Donald Trump has tweeted about the Russia

[0:34:56] dossier an acknowledgement that the government has received the Russia dossier, and thus, uh, an invalidation of the Glomar response. Right, like you can't say "yeah, we don't know." Right. So, and, and, uh, this, the oral argument was yesterday, so, uh, we're going to keep our eyes on this, uh, but, uh,

[0:35:16] but it was, it was, uh, brought to my attention. And, um, wow, and the judge is, is a friend of mine, I'm not going to try and influence his, his decision. Give him a call, get Get him on the show. Make the arguments. Yeah, I'll give him a call, but somehow I think he's going to decline.

[0:35:34] But what you're saying is it's almost like there's maybe a reason past presidents didn't just tweet random garbage and the first thing that comes to their mind, like there's some reason for that, maybe, is what you're saying. Yeah, that is exactly right. Right. And so, so Judge Maida must consider now whether Trump's tweets count as the government, quote, "officially acknowledging," and quote, the existence of the records. And I should point out that the The

[0:36:06] Merrick Garland opinion that I talked about that really set the stage for this involved were FOIA requests served on the CIA, and the argument was not that the CIA had previously disclosed and officially acknowledged the existence of the

[0:36:24] drone program, but in fact that Barack Obama in public statements had talked about the drone strike program. Well, that's funny because I was going to ask, like, is there

0:36:30 Thomas: Any case history of just, you know, somebody or president or whoever just spouting off and saying stuff? Because it really seems like that's the same thing. Like if it, if it applied back then to the president, you know, Obama actually

[0:36:43] acknowledging that something existed. I cannot see how this would be any different. It seems pretty

0:36:49 Andrew: Clear to me. And I should add that the Garland opinion, ACLU versus CIA,

[0:36:55] is the Court of Appeals for the DC Circuit. So it is directly controlling and binding the US District Court for the District of Columbia in which Judge Mehta sits. So I want to do another Andrew prediction. I predict that Trump's tweets are going to count as an official disclosure for purpose of invalidating the Glomar response. Now, look, the government can still go back and assert reasons not to disclose. But unlike the drone strike program,

[0:37:27] look like, you know, again, I think you and I are both on the, you know, on the other side of the Obama drone strike program, you know, are, we're in favor of of limiting that program. But you can at least see the national security interest that's at stake with not disclosing, with that assertion, right? Like it's a facially plausible assertion. The Russia dossier is embarrassing details about the sexual

[0:37:58] behavior of Donald Trump. And it is really, really tough. To it, by the way, than that, yeah, there's other stuff that's been confirmed in the dossier, right? And, and, and so the question is, the what, what, uh, Gerstein was, was requesting in his FOIA request was the CIA's analysis of that document, right? And so you could block out, and this is how, I, if I were Gerstein's lawyer, uh, I would say, yeah, look, you could redact anything that's national security. Right. If there's something in there that is very clearly, you know, tied to national

[0:38:35] security, go ahead and redact it. But if the CIA has opined on, right, the evidence regarding the details, you know, the detailed allegations about Donald Trump, that's not, that's not national security. That doesn't, very, that doesn't clearly seem to me to fall into any of the exceptions. So

[0:38:54] um, this would be a pretty critical ruling, and I think we might get a chance to see what the internal documents are on that dossier, you know, so, so there's, uh, there's where I am.

0:39:06 Thomas: Wow, I love it. Wow. So, and also I want to point out that, uh, you know, in my research, I uncovered that dossier, you know, they were pursuing it, they were, they continued, the CIA, or is the FBI, now I'm blanking, one of them continued to pay the guy because it was valid information they were getting, until that became public, and then they stopped. So I, I would be very curious to, to, uh, get some, some FOIA action on that dossier.

0:39:32 Andrew: Yeah, me, me too. So, um, and, and I want to also add, uh, we highlighted this at the beginning of the segment, um, the same kind of analysis, it's not a FOIA request, so we don't have a Glomar response, uh, but it's the same, uh, utilization of Trump's own words against him in the order that was just issued yesterday in the United States District Court for the Northern District of California, which permanently enjoins the Trump executive order entitled 13768, "Enhancing Public Safety in the Interior of the United States," uh, which is Trump's anti-sanctuary city's order. We talked about that in OA 65, we talked about it in, in, in pretty extensive detail. The argument that was being made in opposition to the entry of a preliminary injunction was that, that the order was really

[0:40:30] not going to do anything. And so until the cities actually had funds withheld, they lacked standing, and couldn't bring their case. And so, therefore, the court shouldn't enjoin the executive order. And the judge preliminarily said, "Now, you know what? Like, the president and the attorney general are grandstanding about sanctuary cities." And they are saying, and this is a direct quote from the opinion, "The president has called his executive order, quote, 'a weapon,' end quote, to use against jurisdictions that disagree with his preferred policies of immigration enforcement. And his press secretary reiterated that the president intends to ensure that counties and other institutions that remain sanctuary cities don't get federal government funding, in compliance with the executive order," end of quote.

So this was an example where, that's what the president is saying on the bully pulpit. But then he sent his lawyers into court to go, well, we're not really going to take away any funding for any of the sanctuary cities. So you don't really get to issue an injunction. And the court said, "Yeah, you know what? Like, that's not good enough." Right? Right. It is a live case or controversy to know that the president is saying that he intends to use this executive order to punish San Francisco and other counties in California that are not complying

[0:41:51] with the terms of the executive order. And so the preliminary injunction was issued. There were subsequent hearings. The government's lawyers responded and continued to argue that San Francisco and the other counties lacked standing. And, and just

[0:42:10] yesterday, the court said no. And and one of the bases for saying that there was a live case or controversy is that the president has publicly, in his press conferences and on Twitter, said, no, we're going to

[0:42:29] we're going to use this executive order to punish Sanctuary City. Yeah. So what you're telling me, just on the record,

0:42:35 Thomas: Andrew Torrez, Esquire, is maybe Trump isn't a secret genius tweeting things that solve all his policy problems. Like when he said, "On mic," referring to microphone, and

[0:42:47] he spelled it capital M-I-K-E and put it in quotes, on mic. God, that was the best. Our president, everybody. Yeah. On mic. Um, no, look, if you want to make, and, and I, this is, this is a great, uh, hidden plug

0:43:06 Andrew: That I'm going to make explicit for, uh, for Serious Inquiries Only, which has, uh, delved into the, uh, claim being advanced by cartoonist, uh, Scott Adams. He's the guy who writes Dilbert, who has said that Donald Trump is a secret genius. And you have at least a three part series on, on, Donald Trump, Not So Secret Genius, that

[0:43:32] I strongly recommend that that all our listeners check out. Out the only way you could be, so look, if you want to be a double secret probation genius here, the way in which you could do that would

[0:43:44] Be Donald Trump is secretly doesn't want to have any of these policies go through. I bet you that's what- Yeah, but he just wants to pander to the base. I mean, the problem with that is that about 50 are going through, right? Yeah, right, because there are plenty of courts that are like, well, he's terrible, but he's not that terrible, so it's not going to count, right? Yeah. Um, and so, so you would now have to say Donald Trump wants a coin flip to determine whether his policies

[0:44:16] actually go into effect or not. That's a real genius, genius presidential move. Never be sure what's actually. Grand democracy at its best.

0:44:23 Thomas: Oh, man. Well, a bit of good news there for your holiday cheer. There you go. Yeah. Permanent injunction, though, in the sanctuary cities case. So is that done? We're just done with that? Yeah. Yeah. I

[0:44:35] mean, that this this case will be appealed. But but until a superior court, which would be either the United States Court of Appeal for the Ninth Circuit or the U.S. Supreme Court, until

0:44:47 Andrew: They overturn this decision, the the executive order is permanently enjoined. Despite

[0:44:53] the political alignment on the Supreme Court, I think this decision is correct, right? It is very clearly a violation of separation of powers for the president to claim I'm going to withhold federal funding to states and localities, right? Like that is the purview of Congress. That's why Trump lawyers went in and argued standing, right? Because the only way you can go forward with this executive order is if it doesn't do anything. And I think it's going to be really, really difficult for

[0:45:25] an appellate court or the U.S. Supreme Court to turn around and say – and overturn the holding on standing and say, no, no, despite – yeah, go ahead.

0:45:36 Thomas: Can I put you on the spot for a minute here? Because another tie-in to SIO, you know, there was an argument made when Obama wrote the trans bathroom executive order where, you know, the kind of, the Republicans always have a, you know, Democrats did this, so therefore we're doing it. And in actuality, it turns out to be we did something that wasn't really that, and then we're going to do it way worse. You know, Republicans are going to do it way worse. And so Obama, they sort of threatened to withhold federal funding to any schools that didn't allow people to use the bathroom of their choice. And what's the distinction there? Was that just as wrong? Or the only thing I saw was, well, because that's a violation of what, Title IX or whatever, like that allows them to do so? So was there a, yeah, I know I'm putting you on the spot, but is there a good distinction there or is that a

[0:46:32] case of, well, no, it was wrong when Obama did it too? So, so here's the distinction. I'm not, I'm not

0:46:39 Andrew: Looking at the text of that. I'm not going to cheat by going and looking at the text of it.

[0:46:43] So in the spirit of the game, because I'm, I've asked you some questions and I'm going to continue to do that. Yeah, my revenge.

0:46:49 Andrew: It's only, it's only fair. Um, if Title IX explicitly has congressional authorization to spend funds in accordance with the enforcement of Title

[0:47:01] IX. I believe that it does. Yeah, then the argument for its constitutionality would be, yeah, right, Congress expressly delegated to the Department of Justice, right, the authority to spend these funds, and they approved it. Congress can, right, they can and repeal Title IX if they want to, if they want to take away

0:47:20 Thomas: Our ability to do that. Yeah, well, because, and the thing I thought of at the time, I just didn't have time to ask you about it at the time, but the thing I thought of too is like, what if some school was just totally discriminating against a given class in some other way? It's not as though we would argue it's unconstitutional to take away federal funding. I think it just got, right? Because in order to get federal funding, you have to comply with federal law. And I think that's That's where they were coming from. So the distinction is because it's written into the law that they can withhold funding. It's not a separation of powers. Whereas you're saying Trump, what Trump was trying to do with the sanctuary cities is take away funding where there is no such provision. Like there is no such condition that these cities have to

[0:48:02] meet in order to get this funding. Yeah. And what, when, what Trump has explicitly said is we will cut off

0:48:08 Andrew: All federal funding to any sanctuary city, to any jurisdiction that doesn't comply with the requirements of that. And so that, that's very clearly on the non-authorized side of the line. Line, that's, that's not to say that the, that the Obama uh trans argument is without its merits, right? Like, we could say, we could, we could go back and forth, and I don't know, you know, because I'm not looking at it right now, on the spot I'm inclined to say it's a valid distinction, but even if you were to say, well, Obama overstepped his authority in, in authoring that particular provision,

[0:48:45] this is so far over the line, right? It's not remotely comparable, uh, and and I don't think even a, a politically activist conservative Supreme Court that we have, uh, is, is going to reach down and say, no, you know, that's, that's totally fine. So the only

[0:49:04] real hope, and that's why, uh, because if there was a chance of that happening, then Trump's lawyers presumably would have teed up the argument that way, right? Like they would have said, oh, yeah, no, we have the authority to suspend federal funds in enforcement of immigration law. They didn't make that argument. They went into open court and said, no, no, no, this is just posturing. It doesn't do anything. And because it doesn't do anything, you don't have any standing,

[0:49:29] because they thought that was their best path to victory. Yeah. All right. Well, it's a bit of a good news segment there. So thanks for covering that. And we'll have to go on to our listener question here. Oh, I can't wait for this one. He who questions training only trains himself at asking questions.

[0:49:47] What? All right, listener question from Matt Yellen. Thomas talks a lot about what he doesn't like.

0:49:53 Thomas: I would like to hear a little about what he does like. Is that true? Is that what I've become? Well, it's time for some reflections. Yeah? Yeah, well.

[0:50:04] Cream-colored ponies and crisp apple strudels. I just don't like Cards Against Humanity.

0:50:11 Thomas: I like not liking Cards Against Humanity. Does that count? Boy, we really got it. I've never, I seriously probably, we can, legal question from listener Thomas S. If Thomas S.'s Cards Against Humanity preferences lose us half our listener base, is Andrew Torrez able to sue me? I think I should.

[0:50:33] I think that's, maybe we should handle that one off air. Just in case. Yeah, let's, we'll talk about that one off the air. Unhappy with it, but also a lot of people, uh, you know, a lot of people agree with me. People on both sides of this one, I've, I have noted, and I think I talked about it on my other podcast, Comedy Shoeshine, that one time when I was forced to play this game, Cards Against Humanity, for the 50th time at a party, because for a while there's a while there's a good two-year stretch where it was just assumed that if you were having a gathering, then Cards

[0:51:05] Against Humanity was the purpose of that gathering. Like, it was just, it was just assumed. People just bring it to my house. Like, first you play, first you play Guitar Hero, and then you settle down and do Cards Against. That would be fun. I don't, I don't play Guitar Hero, but I could, at least, you know, that would be fun. Um, and so I got so tired of this because it's, it's just one joke over and over. The joke is just that the words are extreme, and then you put them together. It's just one joke, so I get the joke after the first one, uh, and then so what I did was I just, um, shuffled my cards face down, and I just submitted a face down card every time, and I won just as often as I had been, and it was

[0:51:42] just as funny, and you literally, and that's when I, I wanted to do a little experiment just to see, and you could try this, everybody, it's your next Cards Against Humanity gathering where you're all yucking it up and you just, you're just, oh, this is such a funny game, I'm so smart for this edgy comedy that I'm doing right now with these cards, just do face down, don't even look at them, turn them in, and just note how easily it works. Like, you don't have to put any thought into it. The card game does all your thinking for you. It's just as funny. You'll win just as many times. It's remarkable. If not more, I actually think I won more times when I wasn't trying

[0:52:18] that way. So what was the question? I just want to point out, Matt Yellen's question was,

0:52:25 Andrew: And I want to read this again. And I love this. He posted this in the opening arguments community. The question was,

[0:52:31] Thomas talks a lot about what he doesn't like. Like, I would like to hear a little bit about what he does like. I think my answer speaks for itself. What you do like is not liking Cards Against Humanity.

0:52:44 Thomas: I love complaining about things that other people find funny that I don't. That's probably my favorite thing.

0:52:53 Thomas: No, I like a lot of things. I like this show. You know, I like Andrew Torrez over here. I feel like you hear about that. I like the bar exam, exam, that's like my favorite thing, contractually, ever since I went above 50, I'm obligated, we signed something that I have to be positive on the bar exam until I drop below 50, then I can be negative on

[0:53:14] it. No, you know, and I like my baby, she's great. Oh, your baby is adorable, that's a good thing to like. I, I love my baby, that she's, she's uh, she's awesome. I, I like all kinds of things, but uh, you know, you know what, what comedy, uh, is is better when you're, when you, when, when you're negative, you know, it

[0:53:33] doesn't, it doesn't work to go on a comedy show and be like, you know what I like, uh, the outdoors, you know, a good hike. Everyone's, I don't know, I, I, I kind of feel like we're looking for the next new edgy line in comedy, and I think the, I like everything, mildly pleased by things, you know what I like, uh, the coffee in the morning, yeah, that's everybody, you know what's awesome, just, just a warm blanket at night when it's cold outside. You're saying like that's the new Gallagher smashing the watermelons. Like that's the new weird, like, cause comedy, you have to zig when everyone's zagging or zag when everyone's zigging, or one or the other. Right. So maybe, yeah, okay. Could be onto something. I'll just go gently talk about things

[0:54:17] that I like. All right. I feel like that's enough of that. So join Thomas on his new show, Stuff Thomas Kind of Enjoys, premiering every Sunday morning. All right. Most excellent. Well, thank you, Matt Yellen. I hope I answered that question. We had a nice, happy show today. I wanted to end with happy things. So there we go. I like my mom's Thanksgiving. That's for sure. It's incredible. Can't wait. Can't wait. It's incredible. I love it. I'm really excited. I guess it's already happened as you're hearing this.

0:54:46 Thomas: So just that answers that. Okay. And you know what my family won't be playing is Because, God, it's getting too many. All

[0:54:52] right. So it is time for our co-favorite time of the week. And that is thanking our all-time greats, our Hall of Fame patrons. And we begin with Heather Loveridge. Sakashite Fukasumi does not get podcasts delivered by vehicle. This Week in News with Kevin and Benedict. Chrissy offers job coaching at blueprintgreen.us. Use code OA17 and save. Violet Page Hall. Call. And finally, thank you, thank you, thank you to the Grand Duke Nile, gets us every time, Danny Baker, at Combat Nonsense, Greg Sullivan, C6 Era, Sammy Roger Metcalf,

[0:55:29] and the international waters Ronda the Dork, Rebecca Smelzer, our first patron Dan Irazari, true story, Adopt a Homeless Pet and Oppose Declawing and Ear Docking, the Wayward Willis Podcast, Philip Stromberg, Tricycular Manslaughter, CampQuest.org, CampQuest.org, CampQuest.org, SquickThinger, Legalize the Purge Hospital via JT, Matthew Vernon, A Small Furry Creature from Alpha Centauri, Maleka Chandler, Jesse Stutt is my favorite lawyer, Andrew is a close second, Jaga, co-host of the Shifty Bastards Transformation Podcast, and Keith Davies. Thank you guys so much for being our top Hall of Famer patrons at patreon.com/law. I hope you got your votes in for the new intro, and I hope you enjoy all the bonus content. Yeah,

[0:56:15] and thank you to Jeffrey Maynor, Jared Only Drinks, Yodel Mountain Brewing Company, Russian Imperial Collusion Stout, Jim Grove, Dave, co-founder of the Florida chapter of Thomas's Goon Squad, Nichols,

0:56:27 Andrew: Ian and Allie, Hunter Ash, help, poor emailing is destroying my last few freight ends of sanity. That

[0:56:34] could be a uh just a public service message for yeah also patron teresa gomez eli bosnick Sam Donow, Soggy Pants Adam, Linda, Aaron Graddy, Frederick Alstromer, Cody Bond, the Reasonable Risk Podcast is not above begging for five-star iTunes reviews, Mitchell, Stop Breaking the Law Asshole, Eric Johnson, Netsec Dan, if Dan Irazari is our first patron, then Michael Rops is our best. Oh, that that sounds like shots are fired. I think patrons ought

[0:57:05] to want to get in on that. There's a little friendly rivalry going on. Yeah.

0:57:09 Andrew: I don't know. And if you're a patron not at the Hall of Fame level, Anna, you might want to get in and stake your claim

[0:57:15] to being our best patron. Yeah.

[0:57:19] Flancrest Enterprises.

0:57:21 Andrew: I love that we have a recurring Simpsons gag in our Hall of Fame patrons every week.

[0:57:27] Zabby, Cthulhu is the real master of all our tentacles, and Conrad Michaels. Thank you all so much. I, we, we really mean it. Have a happy Thanksgiving. Our Thanksgiving is a little bit happier because

[0:57:39] of your continued support for the show. We really mean it. Thank you so much. You're the reason we're doing this show on a holiday weekend

0:57:46 Thomas: Because, you know, what I, I am a podcast fan too. I hate when my podcasts are off, and I decide, I said, you know, we're

[0:57:52] not going, we're not doing it, people need us, they need to know, okay, you kick us a couple of bucks and

0:57:58 Andrew: I am sitting here while the rest of my family, I'm not making this up, the rest of my family is, uh, upstairs gathering

[0:58:04] together, prepping holiday foods and drinking delicious beverages, and uh, and I'm not. Well, yeah, I think you've really rubbed it in for everybody there, so thank you, patrons. Oh, no associate this firm has ever failed the bar exam, no kidding, and now, now, what you definitely

0:58:25 Thomas: Cannot miss during this Thanksgiving holiday weekend is the bar exam. So we're on the new weird iteration of the bar exam, which you said last time is actually closer to the actual bar exam, right?

[0:58:37] right? Yeah. Yeah. These, these are, uh, we are, uh, we're using one more question

0:58:44 Andrew: From friend of the show, Charone Frankel. And then, uh, I am going to buy a new bar exam book because the first 50 questions were a rousing success. You've got 30 of them,

[0:58:56] right? Which is, you know, yeah, it should be really, really, uh, confidence inspiring for our law student listeners. Um, so you ready for question 51? I feel

[0:59:08] like I am All right, here we go. A law of the state of Tentucky. And yes, the bar, they do stuff like that, like they think this is really, really clever. Anyway, a law of the state of Tentucky provides that all persons who have been residents of Tentucky for more than three years shall be entitled to free tuition at state-supported institutions of higher education, right? So there's a Bernie Sanders of Tentucky apparently. It further provides that persons who have resided in Tentucky for three years or less shall pay the non-resident tuition rate, which is $4,000 per year. Okay, that should tell you how long ago Charone Frankel took the bar exam.

[0:59:47] Yeah, that's like the book to me now. Yeah, the book is written on golden plates. And anyway, um, Sebastian was a student at Tentucky State University and a

[1:00:00] resident of Tentucky for a little more than two years. Okay, Sebastian was annoyed that he was required to pay tuition and filed a class action suit on behalf of himself and other university students with less than three years residency in federal district court for a declaratory judgment as to the constitutionality

[1:00:19] of the Tentucky statute.

1:00:22 Andrew: In eight months when the case actually came to trial, Sebastian had been a resident of Tentucky for more than three years and was not required to pay tuition at the state university. However, however, Sebastian's case generated a great deal of interest and a number of amicus curiae briefs were filed with the court, some of them supporting and some of them opposing

[1:00:40] Sebastian's position. Should the state's motion to dismiss the case be granted? So I like this question because this is we've talked about a lot of these issues on the show. Yeah, we have. Tentucky specifically. I remember a unit that you did on Tentucky. Thinking back.

1:00:58 Andrew: So here are your possible answers, or should the state's motion to dismiss the case being brought by Sebastian

[1:01:05] be granted? A, yes, because Sebastian is now a three-year resident. B, yes, because Sebastian lacks standing. C, no, because amicus curiae briefs have been filed. Or D, no, because there is a live controversy. Okay, um,

1:01:24 Thomas: Interesting I was expecting something different because I picked out of there that it's a class class action suit. So I thought there would be some answer that was like, well, it's not just Sebastian. There's a, you know, it's a class action suit. So I don't know if we've, if you and I have talked about that specific question, like if one, if one party in a class action suit, you know, becomes no longer, no longer has standing, there's got to be some way that the rest of the class, you know, still can have that. But it doesn't seem as though any of the answers are specifically geared toward that. So let's see, we've got, well, I think the hardest question is when I'm trying to eliminate an answer, we've got A, yes, because Sebastian is now a three-year resident, and B, yes, because Sebastian lacks standing.

Those are the same thing, kind of, but maybe they're not. So I'm not sure which one to eliminate between those. I think I'm going to definitely eliminate C, no, because amicus curiae briefs have been filed. I hope this is a good elimination, but it's a risky one. But I'm pretty sure amicus briefs don't, I mean, they don't matter in that way, I don't think. I'm pretty sure they're just, you know, you file them on behalf of, you know, you're a friend of the court or whatever the heck it means. And I don't think that that alone would keep a case going. Now, really the hard part, I know what the answer I want is, I don't know which one to eliminate between

[1:02:50] A and B.

1:02:51 Thomas: So I'm going to go with D, D, no, because there's a live controversy, because I just think that's the only one that makes sense in this. Again, it wasn't what I was expecting. I was expecting there would be something involving the rest of the class, but I'm probably forgetting something from my extensive law school training there. So I'm going to say D, no, because there's a live controversy. I think you've mentioned that before when there is a case, it might have been the abortion ones, maybe, where it's like, you know, abortion cases that you've talked about very quickly, they become not, pregnant people only have so long that they're pregnant.

So with these abortion cases, I know that, you know, pregnant people can, they're not pregnant for very long. That's a temporary condition. And I know, I know you've talked about that before, like, well, if the case takes long enough, do they just abandon it? And I believe the answer was, well, we are never going going to be able to get a case that's processed in time for this to work where the plaintiff is pregnant the entire time, you know, for years or whatever.

So it strikes me as that kind of thing where it's got to be similar. So anyway, I'm going with D, no, because there's live controversy. I'll eliminate A and C, but A and B to me are kind of the same. I guess B is is just more technical, so I'll eliminate A and C, leaves us with B and D, and I'll go with D. There we go. Long, long answer short, there

1:04:12 Thomas: We go. All

[1:04:13] right, and as always, if you want to play along with Thomas with Thomas Takes the Bar Exam, you know what to do. Simply

1:04:20 Andrew: Retweet out, uh, or share on Facebook our announcement post that, uh, share out this episode,

[1:04:26] use the hashtag TTTBE. You have 280 characters on Twitter now, so you can put in your answer, you can put in a lengthy explanation, and we will choose among those and shower one winner next Tuesday with endless

[1:04:39] fame and fortune. Fame and fortune not guaranteed. All right, not guaranteed, but, you know, a virtual certainty. Yeah, yeah, oh yeah, no, a virtual certainty, but not guaranteed. All right, thanks for a very, uh, rousing

1:04:51 Thomas: And Thanksgiving-spirited episode, Andrew. Thanks everyone for listening. Thanks most of all to our patrons. And we hope you've enjoyed some of whatever you like to eat on the holidays. You know, I'm sure we probably have a lot of like vegetarian and vegan listeners. Yeah, I'm sure they have. There's some great, you know, Lydia's got this dairy allergy thing because of the baby. And yeah, there's some good vegan stuff out there. We had a good vegan cake and a good, you know, I got to experience some vegan. All of this is to say that no matter who you are and how you like to celebrate or not celebrate Thanksgiving, we hope you had a great time. And we'll see you on Tuesday, where we will talk about net neutrality, and we'll answer all the questions. And by we, I mean Andrew. Stop breaking

[1:05:34] the law, asshole!

[1:05:41] 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. all. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

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