OA182: Paul Manafort is Going to Prison

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments! This is episode 182, I'm your host, Thomas Smith, and uh... That over there is your other host, Andrew Torrez, who can now hear himself in his own headphones. How's it going, Andrew?

0:01:34 Andrew: Superior audio, Andrew Torrez. We have heard your questions and complaints and we take those seriously. We believe we have resolved all of the audio difficulties that have cropped up.

0:01:46 Thomas: Well, we'll see. I think we've resolved enough for now, but I never, ever in my life would have imagined that you were recording 181 episodes without monitoring yourself through your own headphones That is, it's one of those things, like, I'm trying to think of the equivalent. It's like if you were using a golf club upside down and, and I was trying to like fix the mechanics of your swing. I'm like, well, how, how far apart are your legs? Like, how's your backswing? How's your whatever? And then 181 rounds later, you're like, wait, well I'm using this end of the club. You Oh, you know, it's like that. Like I can't, I don't, I don't know. I never would have thought to even ask that. But I like that, so. So, yeah,

0:02:24 Andrew: That is in fact how I play golf too, by the way.

0:02:27 Thomas: I just love this image, though, of working on all this other stuff. Like, no, that's what will keep you on the mic and keep you recording well. So I apologize, dear listeners. I had no way of knowing that you were not hearing yourself in the mic, and it makes an immense difference. It's just how it's done. So I hope that that will keep Andrew on the mike and keep him able to monitor when he's off center and stuff like that. So we'll hope that fixes a lot of the problems. And then I think random computer glitches were other stuff. But one way or the other, it'll be better. Sorry about that.

0:02:31 Andrew: See this is how much we love our listeners. But I learned how to record properly just for you.

0:03:00 Thomas: Yeah, I never would have imagined that. Are you sitting? I'm trying to think. Are there any other basic things that like, are you doing a handstand? Are you anything else I need to ask just to check?

0:03:17 Andrew: I think someone asked in the previous episode if I had like a Vuvuzela going or something.

0:03:21 Thomas: Oh, yeah. Yeah. And in other news, Brian is on vacation. So I'm editing today's episode. So we are going to call it an episode. We're done. Uh, good stuff. That was good. Just maybe five, 10 minutes. No, I also thought it would be really funny if in this one, we did the most yelling at Brian, like Brian cut that, you know, just lecturing him like crazy. And then I forget that I actually have to edit it.

0:03:24 Andrew: There you go. Right.

0:03:44 Andrew: And then we can leave it in. And, you know, I'm not I'm not suggesting that Brian doesn't deserve payback for the blackmail folder of out-of-context audio that he maintains for both of us. But thank

0:03:48 Thomas: Yeah, I told, I, I had to message Brian when I found out you weren't monitoring yourself. Self. I was like, you need to, I told him cause he was leaving for vacation. I said, Brian, I'm going to tell you something and then you're going to drive off a cliff with your entire family. Hold on. And then I told her and he, indeed, I'm pretty sure he did. So rest in peace, Brian. Uh, it was, he's a good guy.

0:04:13 Andrew: You for your service. Brian's Egan Hagan.

0:04:15 Thomas: Yes. All right. Well, now that we've got that all figured out until the next thing that somehow you're doing, um, we have so much today. I mean, we really do. So we got to get right to it. Yodel Mountain, there's been a lot in the news. New York State indictment of Trump. I just saw that like this morning. We've got a slight Andrew was wrong. I always love those. And some other Yodel Mountain stuff. We're going to get to it, we've got Cohen, all that stuff. And then finally, a little update on that AT&T Time Warner merger in the C-segment. Onion headline for that one was, I think it was like AT&t begins merger with the entire universe or something. It just had a picture of like, instead of a galaxy, it was the AT&T logo. And it was merging with all of existence. So that, I thought that covered it well.

0:05:05 Andrew: They're not as usual. The Onion is not is not far wrong. So but we'll we'll get there when we get there.

0:05:09 Thomas: No, there. All right. Well, let's get to it.

0:05:14 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or no on it? Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:05:32 Thomas: Okay. Andrew, we are here on Yodel Mountain. It's a, it's a nice early visit. We are, it's morning Yodel Mount. I think when it's the A segment, it is more of a morning hike, you know, and then C segment is more a sunset on Yodel Mountain. So this indictment of the the Trump Foundation. What is going on there?

0:05:40 Andrew: Yeah. Yeah. This broke about 10 minutes before we were scheduled to record. Cord. So, you know, so this is this is a very, very quick hot take. But but I feel I feel reasonably good about it. So here's here's what you need to know. This is a state civil lawsuit brought by New York Attorney General Barbara Underwood. It concerns behavior as a result of a two-year investigation from the New York State Attorney General's office into the Trump Foundation. There are some really, really interesting things in it, but it is tangential to Yodel Mountain, right? It is almost everything that is described while terrible and disqualifying of any president of any party not named Donald Trump has almost nothing to do with the presidential campaign.

0:06:42 Andrew: And certainly because the investigation was begun in 2016, it has nothing to to do with Donald Trump's conduct in office. A lot of this is stuff we knew, but a lot of it really is disturbing in the details. So let's talk about the one relationship to the campaign and the significance from that. During the Republican primaries, Donald Trump skipped a debate after he was performing Trump like in the debates and decided that instead of participating in the debate, he was going to have a fundraiser for veterans in Iowa. I don't know if you remember that.

0:07:23 Thomas: Yes. Yeah. I do remember that. And then I think there's a check was never... Wasn't that the whole issue?

0:07:25 Andrew: Yeah. Yeah, Yeah well Well, and and and so here's here's the issue. Some of those checks got cashed. OK, some of them actually did. Go

0:07:37 Thomas: Okay. Yeah, I think it was... And it's hard to keep track, but I do Remember one where it's like once a journalist started looking into it and was like, where's any of this money? He's like, well, okay, here's a cheque since if you're going to be a jerk about it, then, okay, I'll give some of the money.

0:07:53 Andrew: Yeah, no, that that's that's exactly right. So here's what this this lawsuit sort of ties those ends together. Right. So, OK, end of January, right before the Iowa caucuses, Donald Trump decides he's not going to the debate. He's instead going to have a fundraiser and raise money for veterans instead. Debt. Um, that fundraiser was planned, organized, financed, and directed entirely by the campaign, but was run through the Donald J. Trump foundation. Um. And. So the allegations in this complaint from a factual basis could support an an argument that the Trump Foundation gave illegal campaign contributions to the Trump campaign.

0:08:39 Andrew: And the reason is all of the same analysis that we've talked about with everything to date, right? Like the entire fundraiser was clearly organized as a political stunt. There was coordination between the Trump Foundation and the Trump campaign that, as you point out, right, the journalists started asking questions. And so the director, the accountant for the Trump foundation, a guy named Allen Weisselberg, wrote to Corey Lewandowski, who was then Trump's campaign manager, and said, you know, we should start thinking about how you want to distribute the funds collected for the vets. In other words, that at all times, the foundation was deferring to the campaign for how those funds should be sent out to veterans.

0:09:30 Andrew: And you could you could dig into it. Now, this is not pled. Right. This is pled as a civil complaint. And some of the other allegations that there's one that I think qualifies as a smoking gun. I'm going to talk about that in a second. It's not pled as a violation of campaign law. And the reason for that is because the federal election laws apply to illegal campaign contributions to a presidential campaign. And obviously, this is something that there is a vested interest, given all of our talk about whether Donald Trump can pardon himself or others. There's a vested interest in bringing a state law case as opposed to bringing this as a violation of federal election law.

0:10:17 Andrew: But as we talked about in our previous episode, there exists in the law the concept of collateral estoppel and of res judicata, which is when a court of competent jurisdiction has determined a fact with finality, you're prohibited from relitigating that fact. So that's what you want to keep your eye on. Again, remember, this is a complaint that was filed today. So we have no idea of the factual basis. We have no idea what Donald Trump is going to say in response to this. We have no idea if they're going to try and stay the litigation. That's a potential strategy. There's a lot that's out there. But the only connection to the campaign is, I want to be super clear about this, is a a very very tenuous connection to that stunt in uh late January of of 2016 yeah the charity is a fraud it it is it's it's 100% obvious right so it goes through and again

0:10:40 Thomas: Yeah.

0:11:06 Thomas: So it's, it's more that the charity is, possibly guilty of some, yeah, the chair. Okay, good here. I was trying, I'm the non-lawyer. I Was like, I try to be careful. I WAS like, ah, potentially there. And then Andrew's like, no, they're a fraud.

0:11:15 Andrew: Yeah right they are, I'm totally comfortable saying that, like the the report, uh, again, the two-year investigation upon which this is based details that the charity had no oversight, that its board of directors hasn't met since 1999, that Donald Trump just makes all of the decisions on behalf of the charity, that they have no conflict of interest policy. Now, again, you know, it's possible that those allegations will be uh shown to be false, uh but but

0:11:47 Thomas: But I just, I mean, it'S, it's I'm having such, you know I'll spend five seconds on this. Cause it's so it's a side topic and I don't want to to take up time, but like, I'm getting really, uh, genuinely troubled and don't know what to do about how bad the hypocrisy and all that is. I've, I've been trying to like, you know, because this is the equivalent of the Clinton foundation, which, you know, which we know again, that wouldn't have been under president Clinton. It's not as though that would have been Yodel mountain stuff. You know, that would've been still separate from her presidency, but Fox news did hours and hours and hours and the nothing that they found on the Clinton Foundation all day, every day.

0:11:49 Andrew: Yeah yeah right oh yeah

0:12:25 Thomas: And then this foundation, yeah, yeah.

0:12:25 Andrew: And and and let's and let's be a hundred percent clear about that, right? Like, you you you are exactly right from a political perspective. And again, I think this would be true for anyone not named Donald Trump. It would be be true if Mitt Romney, right, who has legitimate charitable foundations, right? If it were discovered that Mitt Romney used his charitable foundation to prop up a campaign event, that absolutely would have been front page news and would have be devastating for the Romney campaign. The stories about, well, gosh, it sure looks fishy about the Clinton Foundation, you know, people donate to the Clinton Foundation and then they get invited, you now, to the White House as campaign, like, the this is so much worse than that, and there was a history of of how much worse. So, you know, your outrage is still directed in the right place, um and

0:13:12 Thomas: Yeah, but it's just so hard because it's like, all we can do is point out, you know, and there's another viral video about how Hannity and, well, all of Fox News just blasted Obama for even hinting that he might meet with Kim Jong-il, or was it Kim Jong Un back then? I think it was Kim Jong Il, wasn't it?

0:13:21 Andrew: Right I thought it was Kim Jong-il, but it but yeah in 2008 right and

0:13:31 Thomas: Yeah. But either way, blasted him for that. And then the same people are just trumpeting. But, you know, it's like, I don't even know what to do, you know, because it doesn't seem to make any sort of impact to point out that there's this double standard. Does it just mean somehow in the future, we just have to know that it doesn't matter? Like their criticism just does not matter because it's not actually based on anything.

0:13:54 Andrew: I mean, look, it's obviously beyond the scope of this one Yodo Mountain segment to try and figure out how to how to fix the fake news problem but But but But no, no, but but look, it's always worth pointing out. And what I want to direct you and our listeners to is page 26 of this complaint.

0:13:58 Thomas: Yeah, no, sorry. It's just something I don'T. Anyway, all right, we can move on. It's fine. We can move On.

0:14:14 Andrew: Right. Obviously, you can link it in show notes.

0:14:13 Thomas: Everyone turn to page 26. Yeah.

0:14:15 Andrew: Page 26. So what you need to know is Mar-a-Lago, right, the private golf club in Palm Beach, Florida, that's, I think, doubled and doubled again their fees since Donald Trump has been president. Right. And upon which he makes, you know, countless money. Was located in a district that is zoned residential. So the town of Palm Beach issued a citation to Mar-a-Lago for a violation of local ordinances related to the height and location of flagpoles on their properties. In response, Donald Trump, as he always does, sued the town of Palm Beach. It was so baseless that even though Donald Trump was the plaintiff and was the person who was suing, the lawsuit was settled by Donald Trump agreeing to pay $100,000 to various charities that were agreed to by the city of Palm Beach, Florida. Um, so you know that generally speaking, when you bring a meritorious lawsuit and you, and you settle it, that settlement doesn't require you to also pay money.

0:14:29 Thomas: Yep.

0:15:17 Andrew: So that, that helps you get a sense of the litigation tactics that were employed here. Uh, but as you're probably guessing the fact that, uh, the settlement required the payment of $100,000 to charities means that Donald Trump funneled those payments through the Donald J. Trump Foundation, which again, let's be 100% clear about this. This is a federally registered 501c3 charitable organization. Individual contributions to the Donald J. Trump Foundation are tax exempt, okay, and tax deductible, meaning that we are, that you and I as taxpayers, Anybody who is a taxpayer has subsidized anybody who has given money to the Donald J. Trump Foundation. So keep that one in mind. There is a handwritten note. It is not attached as an exhibit.

0:16:03 Andrew: It has photocopied in directly under paragraph 76, and it is in Donald Trump's handwriting, right, with his big, thick, fat pens that he always uses. And it says Alan W. DJT Foundation, one hundred thousand dollars to Fisher House, parenthesis, settlement of flag issue in Palm Beach and parenthesis. OK. And then his little signature. So let's Unpack that. Donald J. Trump. I mean, this is this is why I've said that, you know, this, in my view, is a smoking gun on the charity. This is Donald Trump's handwriting, an order from 2007 directing the Donald J. Trump Foundation to pay $100,000 to settle a lawsuit against the Mar-a-Lago Golf Club, right, and using taxpayer-subsidized funds to do that. So, you know, does that, again, you know, is that Yodel Mountain in the sense that that's a high crime and misdemeanor while in office or getting into office? No, it is. Uh, but you know, if, if, if

0:16:29 Thomas: Right.

0:17:06 Thomas: I think it's an indication of just how likely it is Trump and co are guilty of other stuff. Because he just, it really seems he has no regard. But, you know, he just, if it really feels to me like he just thinks, well, this is my charity, I'll just do whatever. This doesn't matter. Yeah.

0:17:09 Andrew: Yeah. Yeah. Yeah. And, and the charity has no right. I mean, it, look, I, I didn't want to go into the, you know, It's funny you, you, uh, you immediately jumped there. Uh, I wasn't going to go into this because it is, as somebody who has done, uh, and and continues to do work on behalf of some non-profits and organizing charities, right, it's common to register a business, even a not-for-profit business, with the broadest possible purpose, right? Um, so there's a little bit of making fun of, of, of Donald Trump on this, but on the other hand, this is pretty bare bones, even, even for a, a lawyer, right? So the foundation's mission statement is, quote, "to receive and maintain a fund to be used exclusively for charitable, religious, scientific, literary, or educational purposes, either directly or by contributions to organizations that qualify as exempt organizations under section 501 c3 of the Internal Revenue Code."

0:17:27 Thomas: What what's the mission statement of the charity. Ah.

0:18:24 Thomas: I see, so it's the do-good-things charity or something like, be a, yeah, for

0:18:27 Andrew: It's this, it's the be-a-slush-fund charity, right. Like, I mean, it literally, it's, you know, usually if you set up a charity, I've got a couple charitable clients, right, Now, right,

0:18:36 Thomas: The, for the Arrested Development fans, it's the TBA charity, right,

0:18:37 Andrew: Yeah. It is. So, yeah, there you go, that's item number one. It is not directly Yodel Mountain worthy. It is, you, you kind of cut ahead to the punch line, though, which is, right, if Trump has a, uh, an established history of just casually writing, yeah, pay this guy to settle that lawsuit for this other thing, then one can only imagine the, the treasure trove of, of documents that will be out there if Michael Cohen or Paul Manafort flip on Donald Trump. I think that's a fair inference to be drawn from this.

0:19:14 Thomas: Well, it is time then, I think, for item number two, we're already almost 20 minutes in, so, what were you wrong about potentially,

0:19:24 Andrew: Yeah. So in our last Rapid Response Friday, I, I, talked about the government's request to revoke Paul Manafort's conditions of his pre-trial release. And I opined at the end of that segment that I did not think that Paul Manafort would be indicted on those witness tampering charges. But I thought that he was going back to jail. So let's break down kind of each component of that. As this show drops, we will know if Paul Manafort is indeed going to prison. That hearing is scheduled for Friday. So it's scheduled for after this record, after this show drops. But Andrew was wrong in the sense that there was another superseding indictment that was handed out by Mueller's team, and it adds the counts of witness tampering to the lengthy list of charges against Paul Manafort.

0:20:19 Andrew: And after that superseding indictment was issued, we also have Manafort's response to the motion to revoke his, uh, pre-trial release. Um, I want to make this prediction again. Uh, this prediction is going to be obsolete by the time most people are listening to this, we will know, uh, but I think on the basis of this response, uh, that Manafort's pre-trial release is going to be revoked, and, uh, and it's on the, it is on the grounds that this response is one of the worst legal documents I, I have ever read, it prepared by otherwise competent lawyers. Right. Like, it is, I've read worse document. I'm certainly, you know, pro se documents that are worse, or, you know, incompetent lawyers that don't know how to cite case law.

0:21:07 Andrew: But this one is really, really bad. And let me cut to the punch line. Right. Remember, I told you that under the federal statute, the requirement is that the government demonstrate that there is probable cause that the person released has committed a federal, state, or local crime, right? Right. So the standard is probable cause, and it might surprise you then that the two words that are not uttered in this response are the words "probable cause."

0:21:36 Thomas: Yodel Mountain. Oh, sorry.

0:21:37 Andrew: Yeah. Yodel Mountain also not in there. That is like Cliff Clavin, who are three people who have never been in my basement response. Look, there is a vast difference between, between the government being able to prove that Paul Manafort engaged in witness tampering, right, or otherwise obstructive justice. I agree with Manafort's lawyers on that. It's why I thought they wouldn't indict him on this charge. But the entirety of their response is devoted to the proposition that there's insufficient evidence to convict Manafort of witness tampering, and that's not the standard, right, the standard is just, is there probable cause to believe that a guy has committed a crime while he's been out?

And, and again, the way in which this statute is used, right, in 999 out of a thousand cases, are first-time offenders who are released, and whom, during the period of their pre-trial release, the government suspects that they're using drugs, right? And think about that level of, all they have to do is meet the same standard of probable cause to revoke pretrial release, right, that you would need to get a search warrant, right. To get a research warrant, you don't have to say, well, I can definitely, right

0:21:41 Thomas: Really? Jeez. Yeah.

0:22:59 Andrew: Like that's why you get the search warrant. So their arguments are misplaced in the extreme and then on top of it, I thought this would be kind of, you know, kind of an interesting mini dive into the Manaforts lawyers really illustrate how you don't pick a case in your motion in this. So it again is kind of like a little law school lesson. Their primary case they cite is U.S. versus Edlind. Get into it in a second.

0:23:00 Thomas: Right. Hmm.

0:23:29 Andrew: But typically, when you're a lawyer and you want to persuade the government that they can't do something, you want persuade a court that the government can't doing something here, you wanna cite your main case. You want it to have two things as it, right? You want to have two attributes. The first is, ideally, you'd like it to be from the circuit court of appeal that sits above your current court, right? So here, that would be the U.S. Court of Appeals for the D.C. Circuit, right, because this is in the for the District of Columbia and federal court, or the Supreme Court, right. Either one of those is good because those are the, you're sending the message to the judge, if you come out the other way, you will get reversed. And then the second thing, ideally, what you'd want to show is a decision from one of those courts reversing a trial court who just did what the other side wants this judge to do.

0:24:27 Andrew: Right. That's an on point case that is directly relevant, that is highly persuasive to a judge. This Edlind case is a Fourth Circuit case. Right now, look, it's it's from a neighboring circuit. And there is some case law that suggests and again, again, and I do this all the time, citing the Fourth Circuit in a DDC hearing has persuasive authority, but it's not binding, right? And secondly, and far more critically, this case involves affirming a lower court's conviction for witness tampering, right, and then says, but, you know, they had lots more evidence in that case that we don't have here.

0:24:40 Thomas: Mm-hmm.

0:25:09 Thomas: Interesting.

0:25:10 Andrew: Um, yeah. And so I'm going to unpack that a little bit, but, but again, think of how weak that makes your, your case, right? You're saying the best case I can find to say, right, that's exactly right.

0:25:19 Thomas: Yeah, because that doesn't disprove anything. That doesn't... All it does is say, well, more evidence than this was good for this one.

0:25:23 Andrew: Yeah. Right. Right was sufficient to convict. Yeah, so Yeah, that that's that's exactly right. It leaves open the possibility of what you might call a type two error, right. But let's kind of delve into just a tiny bit on the case. The Edlin court talks about what the underlying offense of witness tampering is, right, and it says persuasion, as the Supreme Court has explained, is by is by itself innocuous and not inherently maligned. Right, and that I think is the language that they wanted to seize on from this decision, right? Right. And then that court says, consider, for instance, a mother who suggests to her son that he might invoke his right against compelled self-incrimination, or a wife who persuades her husband not to disclose marital confidences. Right. So in other words, just because you want to persuade a witness to do something that might take an adverse position to the government, that doesn't make it witness tampering.

0:25:31 Thomas: Right. Yeah. Hmm.

0:26:20 Andrew: You can persuade a weakness without committing a crime. But as the court immediately got, this is the next paragraph, right, the the question is, uh, for witness tampering, whether you have corruptly persuaded someone, and here's what, and again, remember this is Yeah, this is Manafort's own case. This is the central case they cite in their response brief.

0:26:33 Thomas: So how's... Yeah, how's that defined? This is The kind of thing where they excited one part of it and then just cut it off conveniently, you're saying? Hmm.

0:26:45 Andrew: It Says there is general agreement that to corruptly persuade does not require acts, threats, emotional appeals, or or persistent pleading. But it does require that the government prove that a defendant's action was done voluntarily and intentionally to bring about false or misleading testimony with the hope or expectation of some benefit to the defendant. And then they go on to say, a defendant is directive to a witness to lie to investigators or at trial always suffices. So in the Edlind case, anyways, Edlind was not the she she was a co-conspirator after the fact, right. She was friends with the person who was in prison, a guy named Truejoy. She met with him, and then Truejoy told Edlind, hey, I want you to go meet with this other witness and make him see reason.

0:27:32 Andrew: Right. And that's what she did. She went, she met with them. And then essentially what she said to the witness was, hey. You know that Truejoy always with the jokes. He definitely didn't mean the stuff when he confessed crimes to you. And then at the end, and I want to be clear on this, like the record is, in my view, pretty ambiguous. Right. At the end she says, I mean, obviously you tell the truth. Just tell the proof. You let the lawyers deal with it. If there's any bad stuff, it's the lawyer's job to fix it. Right. And Edlind's argument was that that argument at the N, the bit about tell the truth means that you couldn't infer that she was trying to corruptly persuade the witness.

0:27:57 Thomas: Oh.

0:28:08 Thomas: Corrupt intent yeah Interesting.

0:28:11 Andrew: And both the trial court and the Fourth Circuit said, yeah, you know what? That's a a matter of fact for the jury, right, like this is an ambiguous statement uh, and we want to figure out, uh, if if if the jury thinks that, uh, that she was encouraging the witness to lie, that's witness tampering, and they affirmed her conviction. The jury said, yeah, we think the the whole sum and totality, like the whole, like, wink wink nod nod always with the jokes, uh, outweighed that bit about always tell the truth at the end.

0:28:17 Thomas: That's Interesting that they would come to that. So it sounds like even when you can't even protect yourself necessarily if you're trying to do some, you now, casual witness tampering, which I don't I'm not saying everyone should do that, but if you ever find yourself just engaging in a little light witness tampering, you can't just say like, "Oh, et cetera, dah, dah, dah, you know, something, something," and then, but obviously tell the truth.

0:29:05 Andrew: Yeah.

0:29:06 Thomas: And that doesn't.

0:29:06 Andrew: No, that that's exactly and for that reason, right, like we what we don't want to have happen, remember, that trial courts are the finder of fact, right, before a jury, or if you've waived your right to a jury, before the judge. And what we do want to do is on appeal, second guess, unless there's, you know, some reversible error, the jurors' ability to look at the witnesses and go, yeah, OK, we know what they meant. Right. Right. When she said, don't vote truth. Right. Like that doesn't show up in the transcript in italics. Right.

That that's how we defer to the jury's judgment of the credibility of a witness. So, yeah. And and Manafort's argument that he makes and again, remember, citing this case is that all his communications that are discussed as the basis for the superseding indictment were just reinforcing to a potential witness, hey, remember we always said the Habsburg group only operates in Europe, doesn't operate in the United States, uh, and and again, for the same reason, right, that I feel very, very confident that the that the court is going to say, yeah, but the guy that you said it to told Muller's team, oh,

0:29:36 Thomas: Yeah.

0:30:22 Andrew: I I totally understood that as an instruction to lie, uh, I got that as the wink wink nod. Now remember, our story here is, um, and and and this case stands for the proposition that, uh, you're entitled to take that kind of inference to the jury. There's a second argument that's going to go into our next yodeling segment in which Manafort also says, I couldn't have tampered with any witnesses because I don't even know who the government intends to call as a witness against me, it

0:30:53 Thomas: That doesn't seem like a strong is that strikes me as I couldn't have obstructed the investigation because I didn't know there was an investigation it kind of strikes me is that, well okay, but before we this was one of those good Andrew was wrongs. Like, you were kind of taking the, a little bit of the pessimistic, like he wouldn't be indicted for this. And then he was. So I just want to point out to everybody, this is one of the good ones of the Andrew was wrong. So, hmm.

0:31:15 Andrew: And You know, know, the way in which it could be a bad one is that Manafort is trying to craft a narrative that says Mueller is rogue and, you know, he's just out to get him, and and he's adding in all these baseless charges, um, that's a tough narrative to sell because Manafort is such an unsympathetic I mean, he's so obviously a criminal, so, you know, it it that's that's the way in which they're going to try and spin this, and they're gonna try and argue it, but, uh, but yeah.

0:31:34 Thomas: Yeah.

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0:32:33 Thomas: I have started delving into this and I'm hoping maybe I can learn a few things that even Andrew doesn't know. So that's what I'm trying to do. Given that we're stuck covering Trump pretty much every week, you can go to The Great Courses Plus and learn about the deep and rich history of the Supreme Court. It is incredibly fascinating how much it has changed since it began over 200 years ago. And I want to tell you guys, there's a special offer right now. If you sign on right now, you get a full month free of unlimited access. Think how much learning you can do in a month. Free. I love The Great Courses Plus. I will tell you, I was already a customer. I really like that you can sign up there and then you are free to stream away any course you might like. It's not as though you have to buy like one course or something like that. You sign on, you can watch anything you want. Here's the thing though. You need to go to thegreatcoursesplus.com slash OA.

0:33:22 Thomas: That's OA for opening arguments. That way you can start that free month trial. Go to the greatcoursesplus.com slash OA Give it a try. There's so much there. I know you'll love it.

0:33:34 Andrew: Right. There was pending. And at the time in which this opposition was written, Paul Manafort had requested a bill of particulars from the government that the court issue what's known as a bill of particulars pursuant to Rule 7F of the Federal Rules of Criminal Procedure, and Manafort's previous pleading that we just discussed refers to that pending bill of particulars, right? I don't even know who the witnesses are against me. So immediately after Manafort's submitted the opposition to the government's effort to revoke his release, in which he said, by the way, you still have my pending bill of particulars. Judge Jackson also ruled against in almost its entirety Manafort's request for a bill of particulars.

0:34:23 Andrew: So you said that didn't seem like a good argument to you. I think that is probably a pretty good reading of the tea leaves because Judge Jackson was not overly impressed with with the request. What is a bill of particulars? A bill of particulars is a procedural motion that allows you to say, hey, look, I've been indicted, but I need to know more about what exactly it is the government intends to prove so that I can do three things, right? Number one, well, right, right, uh, no way, you know, in, in the legitimate reasons to have it are, number one, so that I can adequately prepare my defense, right?

If everything is constantly changing, then I don't know what to tell my lawyers to focus on to protect my innocence. If they could just change, you know, what they're going to charge me me with, right? Um, number two, uh, and this will not surprise you, it may surprise some of our newer listeners, but, but it is to minimize surprise at trial, right? Like, if, if, if you're not a routine OA listener and you know you've gotten all of your law from, uh, having Matlock on in the bar with the sound off, right?

Like, you, you might think that the law is about a series of surprise witnesses, each more surprising than the last, um, but it's actually the opposite of that, right? Like, we're trying to get at the truth. And the idea is the more you disclose in advance where possible, the more you have in an adversarial system, the ability to really get at the truth. And then the third, and this is a constitutional requirement,

0:34:59 Thomas: Witness tamper. Oh, all right.

0:36:05 Andrew: Is you need to know precisely what offense you're being charged with for purposes of double jeopardy, right? Because you cannot be charged with the same offense twice. So we got to know exactly what that is in order to be able to apply the the double jeopardy bar. And and that three part test is the test. It varies state by state. But generally speaking, that's what a court's going to look at to say, has the government told you enough to enable you to do those three things? Right. Because the flip side of it is that what the law does not require is it does not acquire the government to a turnover, it's strategy, right? You don't have to disclose. We're going to put on this witness to say this thing about you and trap you in this particular way, right, like that's a key part of the adversarial process is separating facts from strategy, and that's typically how bill of particulars battles are fought.

0:36:14 Thomas: Ah,

0:37:05 Andrew: The defense will ask for a bill of particulars setting forth with, with greater specificity, exactly what are you charging me with? When, okay, I'm charged with making a false statement. What are the false statements? And when are you contending I first made them? And who are you going to put on to prove that I made these false statements? And courts have to balance out the need to provide the defendant with sufficient particulars to meet those criteria versus the need for the government to be able to not have to like, you know, sit down with defense counsel and map out their strategy. Yeah. Yeah,

0:37:36 Thomas: So, right. So, but it sounded like you said they denied doing a bill of particular, so they just, denied the whole thing. I don't get it.

0:37:48 Andrew: They they did. There were multiple specific requests. The the ruling denied that bill of particulars in every area except for one that was called minor by the court itself. And that has to do with count three of the prior indictment, which challenges.

0:38:07 Thomas: So is it like for each count, there would be a bill of particulars that someone would request?

0:38:11 Andrew: Yeah, yeah, that's exactly right. And so they narrowed down all the issues. And ultimately, Judge Jackson said, OK, count three charges that Manafort aided and abetted three companies, quote, and others, including former senior foreign politicians to act as agents of a foreign principal to wit the government of Ukraine, the Party of Regions and Yanukovych without registering as agents under the Foreign Agents Registration Act. Right. And what Judge Act, what Judge Berman says is not required that I force you to disclose who the others are, but it is within the discretion of the court. And I'm going to order you to disclose who those others are. Right. Who else? And give a full and exhaustive list of everybody you think that Paul Manafort aided and abetted as agents on behalf of Ukraine in without registering under the Foreign Agents Registration Act.

0:38:12 Thomas: Okay.

0:39:12 Andrew: And then in a footnote, she adds, oh, and by the way, you haven't asked for this, but I am also going to require that the government release the names of anybody who is redacted in the superseding indictment. And all of that information is due, of course, tomorrow when when this episode comes out. This is a way of we've talked about this before of Judge Jackson bulletproofing her opinion of her saying, hey, look, you don't have a right, Paul Manafort, to to the specificity of this. But I'm going to give it to you anyway, and I'm gonna require the government to produce those names. And and we're going to know who that is tomorrow. The fact that that's the sole relief that was granted, in my mind, answers with definitive with definitive the previous question that you had asked at the end of the last segment. Right. Like if there is no chance that that Judge Jackson is going to say that there was no probable cause to suspect witness tampering because Paul Manafort didn't know who all the witnesses were. So that's the significance of that.

0:39:51 Thomas: Hmm.

0:40:22 Thomas: Yeah. I do not think you can just be like, look, I tamper with everybody. It has nothing to do with witnesses.

0:40:25 Andrew: Right. Yeah. Next up is the only thing that Bob Mueller and Paul Manafort's lawyers agree on, which is that we should not release the documents that are related to the Manafort investigation. So latest Yodel Mountain News, the media filed their response. You may recall last week I said I was reasonably persuaded by Manafort's argument. And having read through the media's response to that, I remain persuaded by that argument. I think that the court is not going to unseal the Manafort documents while his trial is pending. And the reason for that is one of the things you look for as a lawyer in an opposition brief is, OK, what was the best argument made in the other side's brief and what's their response to that best argument? And the best argument that Manafort made was, hey, look, I'm subject to a gag order. And so if you have this one sided release of documents,

0:40:37 Thomas: Oh, that's right.

0:41:26 Andrew: You're going to dump a whole bunch of stuff that makes me look bad. And I can't say anything to defend myself. And that's going to further taint the jury pool. Right. Here's what the press says to that. And it's funny. But here's what they say. The press is these are these are the lawyers on behalf of a coalition that includes ABC, CNN, Politico. Right. This is.

0:41:35 Thomas: Right. Who's the pre- Oh, I'm sorry. That's actual the people who are trying to get the record. I was just thinking you were generically talking about the media covering this. I was like, what? Okay.

0:41:51 Andrew: Yeah. Yeah, No. Yeah, this is the filing on behalf of the news organizations for the release of the documents and and They say, "As the court knows, the cases arising from the Russia investigation are rightfully the subject of the most intense public interest and discussion of any criminal actions in living memory. With all due respect to Manafort, that pre-existing publicity is such that he cannot plausibly contend that the release of the warrant materials would tip the balance against him in the mind of even one member of" that is the jury pool, either here or in the Eastern District of Virginia. "The Supreme Court has recognized that while the Sixth Amendment right to a fair trial is important, the First Amendment right of access cannot be overcome by the conclusory assertion that publicity might" define, might deprive the defendant of that right. And there's some other fun gigs at Manafort in there about how, you know, he's released certain information on the and he's brought it on himself, that sort of thing.

0:42:01 Thomas: Right. Okay. What did they say?

0:42:53 Andrew: In my view, that does not really respond to the core issue. And if I were writing Manafort's reply brief, I would say, look, if if there is a material risk that you're tainting the jury pool, you ought to hold off on disclosure until the trial is concluded. Included, um, and I think that's a I I really do, I mean, again, you know, I I'm no friend of Paul Manafort. It says this section shows I am a friend of

0:43:18 Thomas: Sure. Sure. I learned from the YouTube comments that because you think Trump can pardon himself, you're a secret Trump shill, uh, but uh so Yeah, definitely, listeners know how pro-Trump we are, that man they got us. We're playing the we're paying the long long long extra long game on being pro-Trump somehow.

0:43:26 Andrew: That's that's true. Right. Right. This is Yeah, this Is this is the worst, what is that, what is the trope on that, the Xanatos gambit, or like like one of those Batman schemes that are like, you know, see if he does that. Right. Yeah. It's like it's it's yeah, it is definitely more intricate than the than Heath Ledger's The Joker's plan. And in the Dark Knight.

0:43:45 Thomas: Yeah. Like 7,000 steps. Yeah, it's to the point where if you were pro Trump and somehow this all fit into your plan, I'd be like, OK, I'll be actually happy. But it's one of the things like I'm not even mad kind of things. I'm just like amazed. But yeah.

0:44:09 Andrew: Well, so there we go. So think and again, there's other stuff in there, but I think at the end of the day that the press is is going to lose on the Manafort documents. Documents and then finally I just want to let our listeners know again we're recording on Thursday, there are a bunch of things that are out there that are uh as of now uh not available for us to evaluate. Those include the report on Comey, McCabe, and whether the FBI had its thumb on the scale for Hillary Clinton. That's going to be released sometime on Thursday. We're going to review it. We're gonna look at it. Maybe we'll do something about it. We can't do anything in this episode. There are also rumors that Michael Cohen may flip. Flip it now seems to be confirmed that he has fired his defense team, whom I have have

0:44:54 Thomas: That is that is crazy I'm really wondering what you have to say about that but I guess we're, we have to wait, huh?

0:44:58 Andrew: Yeah, I mean, well, all we know, and I want to be very, very clear on this, all we know at the moment is that he has fired his defense team, whom I have described as as very fine lawyers. I'm not surprised he's fired the defense team because they're also very, very expensive lawyers. And so there are lots of reasons why you You might decide to stop paying a multinational high end Covington and Burling style white shoe criminal defense firm. Flipping is one of them, but I don't know that yet. And so we're going to wait. We're going to find out, obviously, if Michael Cohen flips. I don't think I'm giving away the game to say we'll we'll file a we'll be we'll be out there with a special episode. So, yeah, file a brief.

0:45:43 Thomas: We'll file, file, uh, file an episode out for you guys. I love that. We are so lawyerly

0:45:47 Andrew: Yeah. Sorry. You can't take the lawyer out of the show.

0:45:51 Thomas: Here. Yeah, I know. And I also wanted to add that I feel like we should be a white shoe legal podcast. Can we, do we just buy white shoes? Is that all? What does it take?

0:45:58 Andrew: I. Yeah, let's buy some white shoes. We've already

0:46:01 Thomas: What does the take?

0:46:01 Andrew: Got the belt and suspenders, so we'll be a.

0:46:02 Thomas: True. White shoes, belt suspenders. There should be be an official OA uniform that we company uniform. I love it.

0:46:05 Andrew: Yeah. Get on it. Get out of people. Get into the way. Oh, a community on Facebook and make up. Make up the official O.A. uniform.

0:46:14 Thomas: Yeah. Yeah, and we'll wear it and record every time. And then well, I don't know if there's a separate like Yodel Mountain, you get up though we got to, you Know, because you can't you don't do spelunking in your white shoe legal outfit.

0:46:19 Andrew: There we go. In your white shoes? No, no.

0:46:28 Thomas: Yeah? No.

0:46:29 Andrew: Right. You got to have you got to waiters on for that. So there we go.

0:46:32 Thomas: Okay, well, wow.

0:46:33 Andrew: That's our brief trip to Yodel Mountain to start off the show.

0:46:37 Thomas: Yeah I really wish they would start coordinating with us though, in terms of the release of this kind of stuff, you know, like just so, I mean, can't they, is that too much to ask that the government work with the FBI, everybody work with us so that it's timed well, you Know, for our show.

0:46:51 Andrew: I in my position as a Trump shill, you would think that I would be able to get that. But I

0:46:54 Thomas: Yeah. Talk to your people. Would you talk to, uh, all right. Well, that's Yodel mountain. I mean what's the, if you had to sum up like what I, there's a lot of disparate kind of there. What, what has the most Yodel implications as my my new favorite phrase that has never been used until the show, the most yodeling implications that you're keeping an eye on there.

0:46:56 Andrew: Will. I will talk to my people. If Manafort goes to jail. I think that materially tips the likelihood that he's going to flip on on Trump, right? Having to having to sit.

0:47:20 Thomas: Hmm. But you would think Cohen has more though, right? You, you would thank.

0:47:30 Andrew: Yeah. And again, that's Cohen. You know, we're just going to have to wait and see on that. But but I firmly because we just don't know. But I firmly believe that Manafort's release is going to be revoked. And the difference between wearing an ankle bracelet and being in your home and having access to WhatsApp and even being in a country club prison is a big distinction. And and I think that's when all of a sudden, you know, what whatever the balance of scales is in Polly M's head, that that that's going to put a pretty big chunk on the side of of encouraging him to to cooperate. So,

0:47:37 Thomas: Right, right, right. Yeah.

0:47:52 Thomas: The latest in witness tampering technology.

0:48:15 Clip: The law breaking down

0:48:22 Thomas: All right, so as you may have heard, AT&T has merged with the visible universe. I don't know if they've hit dark matter yet, we'll find out. But but what happened with that merger? Hmm.

0:48:35 Andrew: So we covered the proposed AT&T Time Warner merger back in episode 128. I would encourage everybody go back and listen to it, it's pretty good episode. And just got the ruling from the trial court judge, and there are some interesting aspects to the ruling that I think are worth talking about. So the the judge rejects the government's request to block the merger, and here's why we're covering it now, this week, on Friday, because the merger is set to close on or before June 21st, right, one week from today, from when you're listening to this. So this merger is going through.

You might ask, well, don't you get the right of appeal? And we're going to talk about that in a second. But first, you know, briefly, we talk about in 128 that this was a vertical monopoly case, and this judge was just ultimately skeptical of vertical monopolies as being anti-competitive. And he notes throughout that he believes there's going to be cost savings to the consumer, and somewhat disingenuously that, you know, the court has not struck down a vertical monopoly in 40 years. That's true, but that's true only because there was a settlement regarding, again, AT&T back in the 1980s.

0:49:14 Thomas: How

0:50:04 Andrew: But to understand all that, you've got to go back to OA 128. Go back to the show. Hold, but then, um, you get to the end of this case and, um, and this is where it's it's interesting to me, it really goes off the rail. This is Judge Richard Leon, uh, he is a U.S. district judge for the District of Columbia, um, he is 70, uh, a George W. Bush appointee, and uh is famously cranky. If you, you do a search for Richard J. Leon, you will find sites like Above the Law that have quoted from his sarcastic rulings. It's weird, right? Like he uses more exclamation points per page than, you know, your average 14-year-old YouTuber, let alone your average federal judge.

0:50:51 Andrew: In fact, as we're going through the conclusion here, there are multiple exclamation points on this page. Like, I don't need to tell you, right, like judges typically don't don't speak with exclamation points, but uh, but he does, um.

0:51:05 Thomas: Many emojis does he use? Yeah.

0:51:06 Andrew: Right. There none, yet, but I think if he were not 70, this would be littered with emoji, right? It would have the little poop icon on there

0:51:07 Thomas: Okay. Just Like just a bunch of poop emojis yeah are we gonna get to that point where the, I know we did emoji law, but yeah, when the decisions are like that, this Supreme Court, it came out with a decision today, five poop emojis to four, uh, thumbs up. Yeah.

0:51:13 Andrew: Right, um if for For flaming, uh, uh, you know, asparagus or whatever, um, okay.

0:51:33 Thomas: And one And there was a two eggplant concurrence on that decision as well. Wow.

0:51:39 Andrew: Judge Leon also famously took to task the federal government under Obama with respect to two separate cases. One was the Hillary Clinton documents investigation related to Benghazi and their failure to produce documents in what Judge Leon thought was an appropriate period of time. And the second were FOIA requests, right, in a private libel lawsuit brought against Breitbart. And and again, even though the government wasn't a party to that, you know, he issued a ruling that was like, just produced the damn documents already, right. And, you know, to the extent you want to read the tea leaves, he seems like a right wing guy. So anyway, after deciding that there was no anti-competitive harm to the AT&T Time Warner merger, he then issues this under conclusion.

0:52:32 Andrew: And Judge Leon says, "The parties have waged an epic battle to litigate and try this historic vertical merger case. It has been a Herculean task for all the parties, and each side has had its proverbial day in court. But the court has now spoken, and defendants have won, but the process is not over yet." And then there's another exclamation point. "There's a grave and understandable fear on the part of the defendants that the government will now seek to do indirectly what it couldn't accomplish directly by seeking a stay of this court's order pending an appeal to our circuit court. The consequences of receiving such a stay would cause irreparable harm to defendants in general and AT&T in specific." And then it goes through that, that. The government has had this merger on hold since October of 2016 when it launched its investigation. In that 18-plus month period, the companies have twice extended the break-up date to accommodate the government's litigation of this case.

0:53:25 Andrew: During that period, the video programming and distribution industry has continued to evolve at a breakneck pace. The cost to defendants and to the government to investigate, litigate, and try this case has been staggering in the tens of millions of dollars. If the government were to ask me to stay this this court's ruling, I would under law have to weigh whether they have a strong likelihood of success on the merits and suffer irreparable harm. Well, suffice it to say, as my 170 page opinion makes clear, I do not believe that the government has a likelihood of success on the merits. And in my judgment, given that our circuit court has never hesitated to unwind an unblocked merger, if the law and facts weren't doing so, there would be no irreparable harm to the government, only to the defendants if my ruling were stayed. As such, I could not and would not grant such a stay in the first instance. Now, that's not to suggest that the government should not consider seeking appellate review.

0:54:13 Andrew: That is by its any standard fair game. But the temptation to view this decision as being something more than a resolution of this specific case should be resisted by one and all. And another exclamation point. So, again, I'm not kidding about this. That's two on one page. Right. The government has taken its best shot to try and block this merger based on the law. And and they've lost. And the court has spoken to. And again, the words to use a state to accomplish indirectly what could not be done directly simply would be unjust.

I trust that the government will have the good judgment, wisdom and courage to avoid such a manifest injustice to do otherwise, I fear, would undermine the faith in our system of justice, not only the defendants, but their millions of shareholders and the business community at large. Charge, it should strike you as an extraordinary thing for a judge to say. The underlying legal merits are correct. And I've said this on the show. When you lose on the merits and then ask the government to stay your own order pending appeal, ask the court to stay its own order pending appeal.

0:54:25 Thomas: Yeah.

0:55:12 Andrew: You don't have a real good chance of that. Because as Judge Leon points out, he said, I don't think you have a likelihood of success on the merits because I just ruled that you lost, um. But but but these, and and that's true, and every lawyer knows that to have made this explicit, right, to have essentially taken a shot at the at the government and said, uh, you can try and appeal this, but this merger's going through, and uh, I think if you appeal, that's going to look like you're taking an end run around this court. I've never seen a judge do that. Not left, not right, not center. The judges, could you imagine, again, I just, I just want to put that out there, if if any of the judges in Hawaii, California, or Maryland blocking the travel ban. Yeah.

0:55:22 Thomas: Oh.

0:55:55 Thomas: On the travel ban, we're like, hey, don't don't even try to do this again and stay out. So that's what he's essentially doing, like he's the judge is saying, like, don't even I, I feel like it shouldn't be, maybe this is the non-lawyer in me speaking, I feel like it wouldn't really be the judge's job to tell you what the future thing should, like, don't file another thing or don't do that, you know, it shouldn't just be, you're deciding whatever the case is that you're working on.

0:56:01 Andrew: Yeah. You're you're you're undertaking an end run. Yeah. I completely agree. And again, remember, when you unpack the reasoning, the reasoning here is something every single lawyer involved in cases like this knows. Right. There's no question if the government decided to appeal this, they would know they would move for the court to stay the order. They would lose on precisely those same reasons. And then they would appeal and the merger would go through on appeal. And and again, keep in mind the economic reality of that. I mean, notwithstanding Judge Leon's rather blithe assertion that courts will unwind a merger. Right. Like it's really, really difficult to to get a court to the point where it's going to, you know, solomonically cut the baby in half after, you know, when the when the merger goes through and and the merits of the case are on appeal.

0:56:26 Thomas: Oh,

0:57:15 Andrew: Right. It is significantly more disruptive to the economy to break up a company that has started integrating than it is to stop them from integrating in the first

0:57:24 Thomas: Boo hoo to the big old corporation you you might have to break up. I'm so sad.

0:57:30 Andrew: But but you have to take into account that the D.C. Circuit, that's where this is going, will take that reality into account. Right. They may they may not say that in their opinions, or they may say it expressly in their opinion. Right. Like we have seen cases like that that say, you know, well, we know that there isn't going to be a direct time because this has gone through for the past 18 months. And, you knows, average consumer bills have gone down by four percent or whatever, right, like that, that, that may come out either directly or indirectly, it puts the government in a materially different position in terms of challenging this merger. So that

0:57:39 Thomas: Oh, and now it is time to thank our Hall of Famers, our all-time greats. And before we do, we've made just a very minor adjustment to this, which I think we should have done a while ago, which is we're going to start the Hall of Famer shout-outs reach a month of contributions, just so that we're not going to double count. This segment is getting a little long, which we love, But also, there's no reason to do a double shout out when they're getting their new patron shout out that same week. So just to cut down on a little bit of time, we are going to do the Hall of Famer shout out Only only for people who have been at that level for one month. I think it's just probably the best thing for everybody involved. Cut down on a little bit of the time and there's no reason to double up when we'll be hitting those fine, fine patrons in the new patron segment anyway. What do you think, Andrew?

0:59:00 Andrew: That sounds good, and we will still get the back and forth, you know, once you've, once you've hit your month, you can continue to change your name every week, please. We love that, that's what makes the segment fun, uh, it's just about having a right, because we we just noticed the the past couple of weeks we've, we've read a lot of people twice, and so, you know, the joke is, uh, super funny the first time we read it, and we don't, we want you to, we want you to leave on a high note every time. We region In.

0:59:08 Thomas: Yep. Yeah, we Want you to George Costanza this thing for the Seinfeld fans. Um, so those fine patrons, those hall of famers, those all-time greats for this week include Ivan and Gorge P Ness, uh, I love it, uh, join the pen 15 club over here on the Europe. Yeah, um, origins.org, let's run it up the flagpole and see if the cat licks it up. Anonymous, the one thing you cannot afford to have is a sense of proportion, portion. Real property lawyers are literal dark wizards.

0:59:49 Andrew: Heather

1:00:02 Thomas: Nice. Yeah, Jeets. Yeah Jeets this week in news with Kevin and Benedict, Mike, the intactivist. And how come Heather Leverage is always first? That's a great name, especially because the next name is Heather Loverage. I have no idea why it's sorted differently this particular time. I swear I didn't, don't know what I've been doing. Maybe I did something different on the sorting, maybe because I filtered for the lifetime contribution, but yeah, that's odd. Someone Someone finally points out how come Heather Leverage is always first and then she wasn't first this time, but that's okay. Aaron Grady, I'll also vote that Thomas is not hot enough for podcasting. Okay.

1:00:17 Andrew: Leverage, I think You're hot enough for podcasting.

1:00:45 Thomas: Thank you. I have a face for not podcasting? Is that, I don't even, anyway. Pavelski to Seattle 2020, how dare you? Whoever said that, although who knows, maybe he'll be washed up by them. Maybe it'll be a good, but I, for one, welcome our new Russian overlords. Yeah. Brian Upshaw's last chance for profit prison. Soggy Pants. Yodel Mountain Sherpas Inc. We don't stop till you're over the top.

1:01:12 Thomas: It's good. It's good business to get into right about now. Sam Donow. Eli Bosnick. Okay. What do we need to do to get Andrew to get a tramp stamp?

1:01:11 Andrew: Obviously

1:01:23 Thomas: It might be easier than getting him to fix his audio. Oh, no, we'll We'll see. Hopefully, hopefully we have that all fixed. Yeah. Paul Manafort's Good Time Board Game Emporium.

1:01:23 Andrew: Not

1:01:36 Thomas: Yasuki Urameshi. Ian and Allie. President Thomas Smith will pardon the right people within two tries. Dave rooting for the St. Cole Nichols. Jim Grove. James English. Hung over like a horse after crawfish boil. What? Hung. Kevin Graham, soul, Maleka Chandler, masterpiece crapshoot.

1:01:32 Andrew: A Crawfish

1:01:58 Thomas: And finally for me, I don't know what you mean. I think my audio sounds fine.

1:02:05 Thomas: I guess that was supposed to be read by you, but we'll, yeah.

1:02:03 Andrew: There You go, you Guessed Yeah I, yeah You guessed wrong, but maybe, Maybe next week we'll read it in the right order. So thank you to Bigglesby, that time machine's got probable cause written all over it. The opening argument's limited use TARDIS. Impeachment in 24 weeks. Hope Giuliani helps Trump with self-pardon. Legalize the purge. Time is an illusion. Lunchtime doubly so. Campquest.org, Campquest, Campfest.org. Tricicular manslaughter. Buttercup's legal services. Actual legal advice from an actual cat.

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1:03:02 Thomas: I love that reference.

1:03:49 Andrew: That is a fantastic name, spoliaded milk, and our top patron as always, Conrad Michaels. Thank you all so much, we really, really appreciate it, uh, and this is what makes the show possible. So if you want to join their ranks, head on over patreon.com/law, pledge five dollars or more an episode, and, uh, and we will read out whatever you tell us to once a week, every week, on Friday.

1:04:12 Thomas: So good, thank you guys for those references, as always they're so funny. All

1:04:16 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:04:22 Thomas: It's time for TTTBE, and I'm on a one question streak, I believe. So let's see.

1:04:28 Andrew: That's an, that's important streak to keep going, so let's, uh, let's see how it works out. All right, Thomas. A car owner washed her car while it was parked on a public street in violation of a local ordinance that prohibits the washing of vehicles on public streets during specified hours. The statute was enacted only to expedite the flow of automobile traffic. Due to sudden and unexpected cold weather, the car owner's wastewater formed a puzzle, a puzzle.

The car owner wastewater formed, a puddle that froze in a crosswalk. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner's admission that she had violated the ordinance. At the conclusion of the evidence, both parties moved for a directed verdict. Judge proceed? A, deny both motions and submit the case to the jury, because on the facts, the jury may infer that the car owner was negligent. B, deny both motions and submit the case to the jury because the jury May consider the ordinance violation as evidence that the car owner Was negligent C grant the car owners motion because the pedestrian has failed to offer adequate evidence that The car owner Was negligence or D grant the pedestrians motion because the car Owners admitted ordinance violation

1:05:11 Thomas: Interesting. Oh Man. I expected it to be just a question about, about the fact that this car owner violated an ordinance that has nothing to do with frozen water, enough to prove negligence, but then also we've got this issue of, should the trial judge let this go to jury or whatever, versus, um, for just ruling, uh, his or herself I suppose is the question, so like, for Example, B says deny both motions and submit the case to the jury because the jury may consider the ordinance violation's evidence the car owner negligent, um, and then the other answer is, so like, C is grant the car owner's motion because A and B are submitted to the jury, C and D are essentially directed verdict either way. So this is interesting because I do really feel like a lot of times in these questions, you've got an issue and then you've got like a distraction.

But unless I'm wrong, I feel like this one, it's kind of both issues that, that you need to figure out, unless I'm wrong. Let's see. Okay. So my intuition here is, I, not confident, but I feel you want a jury involved in this because A, I don't think that violating an ordinance that has nothing to do with the accident

1:06:15 Andrew: Yeah,

1:07:04 Thomas: Know makes you negligent, uh, per se, is that, the no, uh, is that right, no negligent by default, whatever that would be, is that per se, but oh, okay, I mean, like if you're walking your dog in a place where there's a local ordinance that says you shouldn't walk your dog, and you also, you know, are eating a banana and throw a banana peel on the ground and someone slips on it, like, I don't think that the ordinance really has anything to do with the banana peel. Like, that's kind of how I feel like it's this one. I feel it's the question of whether your negligent is separate is what I think. So, so my intuition here is A, deny both motions and the case to the jury because on the facts, the jury may infer that the car owner was negligent. That's my intuition. But B, it's interesting because B is similar, but it says because the jury may consider the ordinance violation as evidence that the current owner was negligent, so there's a slight difference there.

1:07:13 Andrew: Is.

1:08:01 Thomas: So I'm just now seeing here upon reading it again, it's saying at trial, the only evidence the pedestrian offered as to negligence was the car owner's admission that she had violated the ordinance. So Now I'm thinking, actually leaning towards C, grant the car owner's motion because the pedestrian has failed to offer adequate evidence that the carowner was negligent. Because if my intuition that the ordinance has nothing to do with what actually happened here, if that intuition is correct, then I think C is the best answer. Because if the pedestrian offered no evidence, like zero evidence to negligence, uh, except for the ordinance, then I think the judge would say, well, that has nothing to do with that. So therefore I'm gonna grant the motion.

1:08:46 Thomas: I Second chance law firm. This is one of those guess ones where I'm just going to go to eliminate, I don't go with C. Those are my intuitions. Final answer. C finally done analyzing this question. There you go. Back to you, Andrew Torrez. All

1:09:03 Andrew: All Right. And as always, if you want to play along with Thomas us on Tttb, you know how to do that, just share out this episode on social media, include the hashtag TTTBE, include your guests, your reasons therefore, and we will pick a winner and shower that person with never-ending fame and fortune, fame and fortunate not guaranteed.

1:09:19 Thomas: Right, thank you so much for listening. That's our episode. Thank you so much, Andrew, for Andrewing. And I, no thank you whatsoever to the powers that be who refuse to schedule along with us because there may be major breaking news tomorrow. And we will see you on Tuesday for a bunch of of things that Andrew is never able to get to because he takes too long to explain. We'll see you then.

1:09:42 Andrew: Do See Ya

1:09:52 Clip: This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time, this podcast is a production of Opening Arguments Media LLC, all rights reserved.

1:10:49 Andrew: Opening Arguments is produced with the help of our editor, Brian Ziegenhagen, production assistant, Natalie Newell, and our unofficial researcher, Magpie. A special thanks to the moderators of the Opening Argument's Facebook community, Natalie, Alicia Cook, Eric Brewer, and Emily Waters. And also thanks to Thomas Smith, who wrote and produced all of the amazing music you hear, which is used with his permission.