OA281: Follow the Money! (Analyzing Judge Mehta's Order)

Transcript

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

[0:00:03] So I hold myself in contempt if you try to pull me up here to court with that attorney. [0:00:19] I'll ask the questions here, carjacker Willie. Objection! I'm going to allow it. It characterizes the defendant as a carjacker. [0:00:30] You didn't kill Thompson, but you did, Mr. Wells. Yes! Yes, I killed Ned Thompson! I killed him! I killed him! I killed him! I killed him! [0:00:45] You're out of order! You're out of order! The whole trial is out of order! They're out of order! [0:00:54] Welcome to Opening Arguments, the podcast that pairs an inquisitive interviewer with a real-life lawyer. This podcast is sponsored by the Law Offices of P. Andrew Torrez, LLC, for entertainment purposes, is not intended as legal advice, and does not form an attorney-client relationship. Don't take legal advice from a podcast. [0:01:17] Hello, and welcome to Opening Arguments. This is episode 281. I'm your host, Thomas Smith. That over there is Andrew Torrez, Florida man. How's it going, Florida man? How are you doing, Thomas? Shuffle any boards lately? I, I am bringing you this

0:01:32 Andrew: Show live from the state of the sport of kings, shuffleboard, uh, where I can safely report that I have lost, uh, the only game I played, uh, to my son, who, uh, apparently has a, a long and prosperous career as shuffleboard hustler ahead

[0:01:51] of him. So, yeah, wow, he was born to be a king of shuffleboarding apparently. Yep, uh, you got your, your all-white suit on, you're, uh, it's a, y'all Florida, I, I will tell you, I, I never have owned an all-white suit. I totally would. I had a white sport coat in the late 80s that, god, go get it, that was so fantastic. Dust it off. Well, I'm sure the sport coat that fit me when I was 15 will look great right now. Yeah, definitely. I can, if I want to reenact some Hulk scenes or something, I could be like, this would, would we be, like, if, uh, let's say Don Johnson had been exposed to massive amounts of gamma

[0:02:31] radiation. Nice. Well, it might be

0:02:34 Thomas: The best way to win shuffleboard. You gotta, when you're going for that key, and what do you call it, a put, a shot, a

[0:02:40] shuffle. Yeah. All right, well, we were on some other podcasts that we should tell people about. I was on God Awful Movies, which, which I think is a rip-off of a lot of awful movies, I'm told. They saw what we were doing on A Lot of Awful Movies, and they're like, we should do that, but with religious movies. So this was an insane movie that we covered. I don't even know if I want to spoil it, but it's Christianity meets alien abductions. So have fun with that. It's what it

[0:03:12] sounds like. It's what it sounds like. It was a really, really funny appearance by you and by, uh, mutual friend of the show,

0:03:20 Andrew: Aaron Rabbi, uh, and who, uh, I thought also did a fantastic job, but slightly, he's

[0:03:26] the 1b to your 1a, your 1a, 1a to your 1, if you're both right, I like it, it's a little, little co-host loyalty there. Thank you, I appreciate it. And I was on the most recent episode of the Pod Therapy podcast.

0:03:39 Andrew: Uh, May is National Mental Health Month, and I went on to challenge the host, Dr. Jim, about the Goldwater rule and whether qualified mental health professionals should opine as

[0:03:52] to the mental health of their, of individuals who are not their patients, and that might have some relevance to the current political climate. It was a really, really fun discussion. And as a bonus, you guys should head on over to Pod Therapy and check it out. But as a bonus, we have the unedited audio, which we're going to release on our Patreon feed with their permission. So if you're a patron of the show at any level,

[0:04:21] we will give you that audio. It'll just show up in your feed. So it should be fun. A little bonus. Are you going to plan to find that out? We're trying to find out who wrote the memo, where it came from, when it was, and why it wasn't distributed. Yes. I will take a look at it. Who's on first? What's on second? I don't know who's on third. That's what I want to find out.

I want you to tell me the names of the fellas on the St. Louis team. I'm telling you. Who's on first? What's on second? I don't know who's on third. Do you know the fellas' names? Yes. Well, then who's playing first? Yes. I mean the fellas' name on first base. Who? The fella playing first base for St. Louis. Who? The guy on first base. Who is on first? What are you asking me for? I'm not asking you. I'm telling you. Who is on first? I'm asking you who's on first. That's the man's

[0:05:01] name. That's who's name. That's awesome. All right. Well, it is time for Andrew. Andrew, get your jogging, white

0:05:07 Thomas: Suit, jogging pants on. It's all got to be, you're in Florida, so it's all got to be white. But because you've got to take some several well-earned victory laps in a row here. I think just, and get your yeah arm going, you know, like after, who was the Dodger, you know, who hit the home run in the 80s? That celebration?

[0:05:27] Get that ready. Kirk Gibson. Get your Kirk Gibson and your white jogging suit because Elizabeth Warren listens to the show. We think, I, I, I have to believe that, that she listens to the show, um, not because the evidence supports, no, just because we need to believe that, I need to believe it. No, um, this morning I woke up to, uh, see that both

0:05:52 Andrew: Elizabeth Warren and AOC were trending on my Twitter deck, um, which, you know, that's, that's not an uncommon occurrence. They released a joint video statement that accompanied a joint letter, which I will link in the show notes, to Treasury Secretary Stephen Mnuchin, asking him a series of questions about, uh, his activities while being on the board of directors at Sears. And this exactly tracks the lawsuit and the allegations that we told you about in detail on OA episode 273. So, uh, number one, if you see this out there, go ahead and share 273 with folks, right? It's, it's a direct guide to what they're talking about, because, you know, I mean,

[0:06:40] that took us almost an hour and a half. Like the, the, the financial crimes that are alleged there are kind of difficult to unpack, right, and this is an area where, you know, Trumpers and Mnuchin supporters are going to be able to obfuscate. And we hope that by giving you the info a month in advance, that kind of helps you navigate through it. Here's the information that Senator Warren and Representative Ocasio-Cortez,

[0:07:13] here's what they're seeking from Mnuchin. So three questions, each with some subparts. Number one, while you served on the board of directors for Sears, how did you advise your college buddy, Eddie Lampert, and other Sears leaders on, A, the decision to buy back nearly $6 billion worth of Sears stock between 2005 and 2010 and take an ax to the company's operating expenses and capital expenses in the process? We talked about that, right? And we talked about the various plans that

[0:07:44] were in place to try and first to renovate Kmart, which those funds were used to acquire Sears instead, and then how Sears was sort of bled dry of its operating assets. Sets um lampert's decision to load up Sears with large amounts of debts, leaving the company with a net debt-to-equity ratio of 1.48 by 2013. I skipped over that allegation because

[0:08:08] we were already at 90 minutes. Well, you're already doing, yeah, a 90-minute lightning round, so it's tough for you.

0:08:16 Andrew: Lampritz's decision repeatedly to spin off major assets to shareholders. We talked about that, the very weird situation of Sears selling off its profitable brands like like Land's End and the Craftsman line of tools.

[0:08:30] Typically, you don't sell off the good chunks of your business when you're trying to turn it around.

0:08:35 Andrew: And similarly, D, Lampert's decision to split off 235 of Sears' most profitable stores and 31 other real estate holdings, selling it to a publicly traded REIT, Real Estate Investment Trust, for $2.7

[0:08:48] billion.

0:08:50 Andrew: Again, we covered that without sort of going into what a real estate investment trust is. Which is on the whiteboard, by the way. Maryland is to REITs what Delaware is to corporations. So it's kind of an interesting deep dive that we'll get to at some point, but not in this

[0:09:09] segment. Other cost-cutting decisions. Two, as a board member, did you, Mnuchin, participate in any discussions or decisions regarding the Sears pension plans? Did any member of the leadership communicate with you or attempt to communicate with you about the PBGC decision? If so, please provide copies of that communication. And then in your ethics agreement, when you joined the Trump White House, this is question number three, you stated that for one year, I love that, right? Right? Once I've been in the job for a year, I can start looting things. But for one year, you would not participate personally and substantially in any particular matter involving specific parties. You knew that Sears is a party or represents a party.

[0:09:50] Have you, A, sought or received any waivers? B, sought any advice from the Treasury Department's designated agency ethics official regarding decisions related to Sears? And if so, have you followed it? Or C, since the one-year deadline has passed, have you been involved in any Treasury or PBGC actions related to Sears or Lampert? If so, please describe those actions. And and so, we will see, but this is, again, we told you that when the Democrats retook the House that the primary advantage was going to be using the House's oversight and investigatory powers, and that continues, and

[0:10:29] Well, okay, but this is a YouTube video, right? Like, no, no, this is a formal, formal letter. From a letter, look, in order, we're gonna get back as a bunch of written-down walrus denials, just like, and then that'll be the end? Or what happens? So, look, I don't believe that that will be the end. This is a voluntary letter, but a voluntary letter is the first step before you then go to the House of Representatives and say, hey, look, a sitting member of Congress and a sitting senator have requested relevant information to the governance

[0:11:07] of the United States and have been stonewalled in that, um, it's time to issue a formal request. Right, oh, everybody look, buckle your seat belts. Yeah, formal request, I, I get, I get your, uh, in three to five business years, uh, there may be, uh, like a stern request, and then after that, we're gonna talk about, we are gonna talk about, in the main segment uh, related to exactly how those requests, okay, uh, which evolved into subpoenas over Donald Trump's financial records, are proceeding at what could fairly be described, for the law, a breakneck

[0:11:45] pace, as Andrew Torrez lightning round pace. So, yeah, exactly, fast for the law, other lawyers

0:11:52 Thomas: Are like, I can't even, this is so fast, I couldn't even see it. And, and you and I, are non-lawyers, are sitting here like, I meant you and I, the listeners, and I, uh, are sitting here like, this is taking several years, and Andrew's like, that's fast, new world record, this is Usain Bolt of, uh, of legal, uh, proceedings. Well, is there, is there more on, uh, Warren and, and, uh, AOC, or did we, is that enough victory, lies

[0:12:16] your arm, do you throw your shoulder out from doing all this? Yeah, that, that the, the pumping of my elbow as I, uh, one-leggedly

0:12:23 Andrew: Jog around the bases, um, still, by the way, like, I, I'm not a Dodgers fan, but, uh, in, in my view, I think still the most dramatic home run World Series history in my lifetime, um, so I will not, uh, I will not compare it to, you know, I know we have some, uh, I know we

[0:12:42] have some listeners who are in a different demographic, who are probably going to talk about, you know, uh, baseball from a, from a time gone by, in my lifetime, most dramatic baseball moment ever, um, yeah. You Did you want to pause briefly on the total nonsense hit piece in the Washington Post on Elizabeth Warren charging $675 an hour to her law firm clients? Yeah, I

0:13:07 Thomas: Started to, you know, compose a, a, uh, is what Twitter is for, a sarcastic tweet about this

[0:13:14] this thing, and then I was like, well, it, it is just a headline, it wasn't really a hit piece, or is it the kind of thing where they know that it's going to be taken as a hit piece, but they're just stating, like, yeah, she's a lawyer, she's charging what is probably a modest and underpaid amount for how good of a lawyer she likely was. But was it really a hit piece, do you think? Or is it, do they know what they're doing?

[0:13:37] I think they know what they're doing. Right, so this is an article by Elise Vibeck and Ann Linsky of the Washington Post, it is in the politics section, the headline is

0:13:49 Andrew: "While Teaching, Elizabeth Warren Worked on More Than 50 Legal Matters, Charging as Much as $675 an Hour." I think the net effect of that headline is to induce skepticism about Elizabeth Warren, is to say, say, oh, look, she's a, you know, corporatist, right? That's a huge dollar

[0:14:08] value, and also, is there some conflict of interest, blah, blah, blah, blah, blah. So let's Start with all of that. I don't know what Alan Dershowitz charged the OJ legal defense team, of which he was a full-time member while being my criminal law professor, okay? But Harvard Law professors working on cases and consulting to cases while teaching at Harvard Law is 100% within the scope of their employment, within history and tradition of the practice. There is no doubt in my

[0:14:45] mind that whatever Alan Dershowitz charges, it is higher, probably twice Elizabeth Warren charging $6.75 an hour. Um so uh, so there's absolutely no conflict of interest, and number two, uh, with respect

[0:15:04] to that dollar value amount um that is not all right I, I, I get that it's a sticker shock, I don't charge $675 an hour now, uh, but when I was at a big law firm, I did, um, and we've talked about how, I mean, if I had a state at Covington and Burling, my bill rate, uh, would be over a thousand dollars an hour. If I'd have stayed at Zuckerman Spader, my bill rate would be well over

[0:15:29] $675 an hour now. So it is a market rate for a brilliant lawyer advising clients. And anybody that

[0:15:42] is sort of trying to throw shade on that just has no idea what they're doing, in the same way, by the way, that, that, you know, the fact that Bernie Sanders got a million dollar advance

[0:15:54] for writing his memoirs, again, if, if that, how you evaluate that politically is up to you, but to me, that is a classic example of

[0:16:07] you know, sort of the left trying to eat itself, that. Well, yeah, and people playing into that, and people I know, yeah, 100, right? I mean, let me not suggest that that's organic, we know that it is not organic, right? We covered the Bernie Sanders quote lawsuit against the DNC, which was bankrolled, planned, and funded by right-wing operatives with the help of the Russians, you can go back and check that out in our archives. So, uh, yeah, I, I don't mean to suggest that it is organic, I do mean to suggest that, uh, it is something that, that has been, uh, exploited by the other side

[0:16:44] and, um, I, I can't, I can't begin to, to know what was going through the heads of, uh, these uh, two reporters writing the article, but, um, but that's, there is no adverse inference to be drawn from that

0:17:02 Thomas: Yeah, yeah, well, now that we know, uh, Elizabeth Warren is listening to the show, I just want to say, you might, in that episode, that was the birth of the brilliant, uh, Proven Innocent candle line, and I just want to say, you might, you might have thought, like, oh, I've, you know, I'm a senator, I'm running for president, I have a good shot, but I'm going to give it all up to pursue this line of business. I just want to tell you, it's our, it's my idea, it's already taken, so you can't, I, with all due respect, I mean, I'll, we can talk, I'll work with you, maybe as an investor, Senator Warren, but

[0:17:34] you can't, my, it's taken, right, Andrew, we got the rights to that, it's all, yes, yes, absolutely, just want to make sure you, just never know, yeah, yeah, okay it is time to talk about, well, you you already teased it, we're gonna, we're gonna maybe talk about the slow wheels of justice turning, maybe in our lifetimes we'll see, or in the next few years, uh, because we've got some decisions, some, you'll have to, you'll have to spell it out for us, which level of uh orders

[0:18:06] these are, but we've got some, I think Trump is maybe not getting away with certain things, at least for now. Yeah, I, I think that's right, so exactly one week ago today, our

0:18:19 Andrew: Deutsche one alone episode, we talked about, uh, the congressional subpoenas to Deutsche Bank, which had indicated, as we discussed in in 279, hey, look, you've asked us to produce records, um, we don't know, we've been instructed by our client not to produce those records, and we just don't know what to do. Trump then sued Deutsche Bank and said, seeking an injunction to prevent them from releasing the records, arguing that Congress had no right to obtain them. Congress intervened, and we made certain predictions about what would happen, and, and Deutsche Bank said, uh, look, you know, to the court, hey, if you tell us to produce the records, we'll produce the records, like, we're not, we're not, we're not taking the fall for this guy, um

0:19:08 Thomas: Well, okay, I just want to, uh, there's a Daily podcast episode today about

[0:19:15] the Deutsche Bank Trump history, and it is bat s bat clown horn, uh, insane. It is, it is, wow, yeah. He, uh, that, okay, no, I just want to say, if you want to check that out, but the, but, but it, the reason I brought it up is because I would echo the, the idea that I doubt they feel a ton of like customer loyalty towards one, Mr. Donald Trump, because they, they apparently, you know, he got so much money out of them and they did this huge loan.

And then because it was, it was, I think it was to build the Chicago tower, which, uh, yeah, we were in Chicago last year and we saw that tower with a stupid name on it, and it was right around the time of the, uh, the financial crisis in 2008. So, like, everything, it was all just not working out because Trump is not a good businessman, but also, you know, the, the financial crash and stuff like that.

And so he and his lawyers decided, like, when the $40 million, like, guarantee that he had to pay was came due, and he had his lawyers, like, look over the contract for any possible way to get out of it, because that's his entire business model, is how can I get out of paying somebody what they're due? And, uh, and, and they're like, well, it's so funny, I, I mean, you maybe you should listen to it, but they, they took the force majeure clause or whatever, and

[0:20:36] Alan Greenspan, do you hear any of this? Do you know? No, no, this is new to me. Yeah, they took, you know, like the act of God, that kind of thing, and the clause in the, uh, in the contract, and because Alan Greenspan that day or something had said, oh, there was just a tsunami of debt, uh, crisis or whatever, I'm not even, I'm not making this up, they're like, we'll say that's an act of God.

And and so they, as the $40 million, dollars just picture this, like, for, you've loaned this guy a zillion dollars, you know, and so, and he personally guaranteed, I think, $40 million of it or something, and so that, that is the day it's fine, it's due, because it's finally due, and of course, because he's an absolute con artist, he doesn't have that money, and he's gonna try not to pay it, uh, and so the day it's due, he just sues the bank like proactively sues them to get out of the contract because of this force majeure thing. It's, it's, uh, it's amazing. So yeah, there might not be a ton of loyalty in that relationship

[0:21:35] is all I'm saying. Well, and, and I hadn't, or maybe there is, I don't know, maybe they're so corrupt that they're like, well, now he's president, that, I, yeah, I don't know, I guess I can't, here's, here. Here are my thoughts. I haven't heard that podcast episode. I read the New York Times article that

0:21:51 Andrew: I'm going to link in the show notes about Tammy McFadden, who was the whistleblower at Deutsche Bank, who pointed out that the bank had received several SARS reports. We talked about this with my sister-in-law, Carla McAdden, way back in episode 174, but essentially when you're a banker, certain transactions raise red flags and the bank is then required

[0:22:16] to report uh those flags to the government right and deutsche bank uh had multiple activities transactions that triggered SARS reports, uh, compliance officers reviewed them and said, oh, well, we need to tell the Treasury Department about this, and senior executives at Deutsche Bank were like, let's not do that for Trump. They pointed out that Deutsche Bank has, has loaned to, New York Times, has, uh, more than $10 billion dollars to Trump and Kushner companies, so, uh, yeah, they are strongly intertwined, uh, with, uh, yeah, with

[0:22:59] with donald trump but But, and this, I was going to say this for the end of the piece, but I think it's a good, this is a good point to do it, and then we'll talk about the legal aspects of the ruling. We also learned yesterday that subpoenas were issued to TD Bank and to Wells Fargo and a bunch of other financial institutions. But TD Bank and Wells Fargo have already provided financial information regarding Donald Trump's transactions with those lending institutions to the House Oversight Committee. And the reason that they have, I mean, we have to speculate, but we

[0:23:35] talked about the penalties that Wells Fargo got hit with by outgoing Consumer Financial Protection Bureau Chair Janet Yellen back in episodes 146 and 169. And the way in which I would interpret that is, look, these are multinational,

[0:23:55] multibillion-dollar banking entities. Their profit motive extends way beyond Donald Trump, way beyond the president of, of the United States, um, and, you know, if

[0:24:08] if, if their ability to continue to do business is subject to, uh, you know, potential, uh, sanctions from, uh, from the government

[0:24:20] then I think they're gonna, I think they're gonna roll. So, so there you go, there are outstanding subpoenas to city group Morgan Stanley, the Royal Bank of Canada, Toronto Dominion Bank, and JP Morgan Chase, and a recent report says that the Royal Bank of Canada is already in the process of complying with the subpoena, um, so, uh, yeah, so these, you know, this is part of the theme, these financial institutions are not, you know, they're not going to defy the law for Donald Trump. Look, we know Bill Barr will, right, we know that, uh, Sarah Huckabee Sanders will, right, we, we know that the, that the spineless sycophants and criminals that support Donald Trump will do that, um, once

[0:25:04] you've brought in these huge banking entities, you know, it's, you can't Donald Trump cannot leverage city group So, so there we go, but

0:25:16 Thomas: Is it, I mean, are they able to slow this down, you know, I, I don't, I don't see how executive privilege could possibly make any sense. However, that hasn't seemed to stop anybody from just shouting executive privilege, like you're playing a game of freeze tag as a kid or whatever, and you're shouting, safe, or whatever. So is that a possibility? Is he going

[0:25:41] to slow this down somehow? Yeah, you've got two questions there, right? The first is, can Donald

0:25:47 Andrew: Trump assert executive privilege with respect to these records? And the answer to that is absolutely, positive not. All of these are personal financial records and corporate financial records of Trump, his no-talent kids, and the Trump Organization and banking entities. Now, those are records to which ordinary human beings have some expectation of privacy and some legal expectation of privacy. But again, that expectation of privacy is overridden when there is a legitimate congressional legislative purpose. In 279, we talked about what that is.

0:26:28 Andrew: We're going to talk a little bit more about that today because of Judge Maeda's ruling. The second question you ask is, can they slow it down? And the answer is not much, right? So let's talk about the ruling that came in and what that does for the timeframe, right? So, this ruling, and I should say, this is Judge Amit

[0:26:49] Mehta of the United States District Court for the District of Columbia. He is a friend of mine.

0:26:56 Andrew: He is an ex-partner of mine from Zuckerman Spader. So, I want to, as I'm about to heap praise on his decision, I want to disclose that conflict of interest. I don't know how you would describe it, but I do want to disclose that he's somebody that's a friend of mine. This decision, he's also, I should add, as long as I'm going to do that, he is not a wild

[0:27:21] -eyed lefty, right? He was an Obama appointee, somebody that I would describe as a centrist Democrat, not a lefty, not an extreme partisan, just a very, very smart guy. And his ruling came in, we discussed in 279, the status of the subpoena against Deutsche Bank. There was a parallel lawsuit against the firm Mazars USA LLP, that is an accounting firm, and they prepared, uh, Donald Trump's taxes and other documents. They were Trump's accountants. When Michael

[0:28:05] Cohen testified to Congress, he said that the financial statements prepared by Trump's accountants falsely represented the president's assets and liabilities. Specifically, Cohen said Trump inflated his total assets when it served his purposes and deflated his assets to reduce his

[0:28:23] real estate taxes.

0:28:25 Andrew: And then Trump gave documents from 2011 to 2013, which were signed by Mazars. And so then Elijah Cummings turned around and served a subpoena. First,

[0:28:37] again, and let me go to the decision. This starts at the middle of page nine in the decision, because it directly kind of plays into the skepticism you had in the

[0:28:50] A segment, right? Right.

0:28:52 Andrew: I'm just going to read from the opinion. Following Cohen's testimony, Chairman Cummings wrote to Mazars on March 20th, 2019. The letter first summarized aspects of Cohen's testimonies. It then identified a half dozen questions about assets

[0:29:05] and liabilities.

0:29:06 Andrew: And Cummings said that these financial statements raise questions about the president's representations. The letter concluding by asking Mazars to produce four categories of documents with respect to the president and affiliated organizations and entities, including Trump Org. The records requested included statements of financial conditions, financial statements, documents relied upon,

[0:29:25] etc, etc. A week later, March 27th, Mazars responded that it cannot voluntarily turn over documents sought in the request. Mazars cited federal and state regulations and professional codes

[0:29:37] of conduct that prevented it from doing so. So, again, you right use that analog. Liz Warren and AOC have sent a letter to, uh, Stephen Mnuchin, and he's got to respond to that letter, and that, that's how the subpoena got started in this process.

[0:29:56] And again, it got started. Letter written on March 20th, they wrote back and said, uh, no, can't do that. April 12th, there was an internal memorandum, and the, the Republicans that

[0:30:09] was circulated to the Congressional Oversight Committee that said, "Hey, need for subpoena," right? So this is, again, less than two weeks after being told by Mazars, "Sorry, we can't give you what you want." Elijah Cummings went to the committee and said, "Hey, they just told us to go pound sand. We need a subpoena." The Republicans said, "No, that's not good enough." It's noted as notwithstanding the ranking member's objection, and that's Jim Jordan, who's been delightfully played by Jim Brewer on Saturday Night Live, that Jim Jordan said the action would be, quote, "an unprecedented abuse of the committee's subpoena authority to target and expose the private financial information of the president of the United States." And then, as the court notes, notwithstanding his objection, on April 15th, so three days later, the Oversight Committee issued the subpoena to Mazars that is the subject of the lawsuit, modified it to reduce the scope a little bit. And then, you know, that was five weeks ago. So we have five weeks from the issuance of the subpoena to the issuance of an order by a United States District Court judge that

[0:31:25] says, "Yes, you do have to comply with the subpoena." Um, the, the, so I, you know, I don't, I find that to be a pretty remarkable spread of time, uh, in terms of how quickly the, uh, the wheels of justice have have churned.

0:31:43 Thomas: Here, what do you think? Yeah, well, do they, can they appeal that, or do you know, do they do the whole, what, Trump, Trump says, and they go the Supreme Court, and the Supreme Court's gonna say yeah, like that, so they do that process, so they

0:31:55 Andrew: Can. But here's the genius of what's happened. Okay, Judge Meta did

[0:32:01] two things, and, and so, you know, let me, let me talk about a couple things here. Number one, I'm gonna link the ruling in the show notes, you should read it. It's super well written, historically it's easy to read, uh, it opens with a quote from James Buchanan, and, you know, who's, you know, widely considered one of the worst presidents in history, and then says, uh, you know, who tried to eliminate, uh, congressional investigation, and then says, uh, you know, uh, Donald Trump has picked up the mantle of James Buchanan, and it's, so it's a well-written opinion, but, but here are the important aspects to know legally.

Number one, it's a ruling on both the injunction and on the merits, right? So unlike when we talked about this over, for example, the executive order on the Muslim ban, this is not a case where the challenge to the injunction is going to be separate from the underlying merits. This is a case where, as Judge Mehta notes, the legal issues presented here, this is page 15 and note 21, do not require the court to resolve any facts because the material facts are not in dispute.

0:33:08 Andrew: So it is a ruling on the merits. It is also a ruling that is exactly what we predicted, which is that Congress has broad investigatory power, so long as it's over an area that they could legislate, and that the courts will not second-guess the motives of the legislature.

[0:33:27] Right, um, that, that, uh, it, it doesn't, we're not going to try and figure out does Elijah Cummings want these documents to embarrass Donald Trump or not, uh, to, to, to read from the holding, "To be a valid legislative inquiry, there need be no predictable end result. The critical inquiry is not legislative certainty, but legislative potential. If the subject matter of the investigation is one on which investigation could be had, then

[0:33:52] Congress acts within its legislative function," right? Um, so, was not difficult then to apply those standards to the law, right, we, we walked through those the last time, um, there, there was then no likelihood of success on the merits. This was another, I

[0:34:11] think genius move by, by Meta. Remember in 279 we talked about how the ordinary standard for whether you get injunctive relief was that you had to prove likelihood of success on the merits, but that the Second Circuit used this slightly variant approach of "serious questions," right? And that even though the Supreme Court had said likelihood of success, that there was subsequent case law that interpreted various questions as just being a, a more flexible form of that.

[0:34:43] Well, uh, Maida wrote his opinion using that standard, right?

0:34:49 Andrew: He says, "As to the first factor, plaintiffs have not shown that their challenge to the Mazar's subpoena presents serious legal questions going to the merits," so serious, substantial, difficult as to make them a fair ground of litigation, and thus for more deliberative investigation. He deliberately cited from a 1985 DC Circuit case on that, uh, in order to have this order be applicable in the Deutsche Bank case, which, by the way, this order came out on Monday, uh, was transferred to the Southern District on Tuesday, which then ruled in favor of the House Oversight Committee on Wednesday, right? So it had exactly the, uh the effect that that they expected. Um, I, I want to to get to

[0:35:33] the timing, I know I said that, uh, but, but I also want to do, uh, one teeny tiny little rabbit trail, because I, I love this. Um, the opinion also protects future litigants against efforts by nut jobs to escalate this, right?

[0:35:52] Because we, we, you know, the, the, the court has now said, okay, if it's, if it's a legitimate legislative inquiry, right? If the subject matter of the investigation is one on which legislation could be had, then you can issue the subpoenas. Well, what happens the next time the howler monkeys are in charge of Congress, right? Can they, can they

[0:36:11] start serving frivolous litigation on Elizabeth Warren, and, and here's, yeah, like imagine if they try to investigate, you know, Hillary Clinton for, like, forever. Something like, something like that, right? Yeah, something that, I begin a half pure hypothetical, but, uh, yeah, I don't know why I came up with that, but just hypothetically, first thing, this is page 19, and this is really well written, and I think it, it shows an understanding of of the underlying political dynamics. Here's what the opinion says. Although Congress's motives are off-limits, courts can consider what Congress has said publicly to decide whether it has succeeded its authority. And then there's a citation. Relevant evidence includes the resolution authorizing the investigation, statements by committee members, and questions posed during hearings. At the same time, the mere absence of public statements identifying the investigation's purpose or subject matter is not by itself conclusive proof of an invalid purpose. So think

[0:37:08] about what that says there, right? That, that says, yeah, we, we get it, the, the howler monkey contingent, they cannot help themselves, right? We've seen this all the way back to, you know, the, the the bar, right? Um, these folks will not be able to say, to avoid saying to their constituents and on Fox News, "Yeah, yeah, yeah, we're gonna go get Elizabeth Warren or Hillary Clinton," and this opinion leaves it open that if they are dumb enough to say, yeah, the point of this is to lock her up, uh, then courts can consider that, and

[0:37:44] can inquire into it. And, and by the way, like, good for them, right? Like, if, if this were just, I I, I want to be totally clear about this, if this were just designed to attack, attack Donald Trump, like maybe you and I would have a difference of opinion on the show. Um, I

[0:38:03] don't think that the congressional oversight purposes should be used solely to harass a president, even a president as, uh, as evil and monstrous and, uh,

[0:38:16] you know, lacking in respect for the rule of law, of Donald Trump, right? The fact is this is a totally legitimate. Does that change,

0:38:22 Thomas: Change, if we're, if, if we're doing an impeachment proceeding, I mean, does that isn't

[0:38:28] that kind of their whole purpose? What do you, I'm not, I'm not sure I understand the question, I'm asking, like, I, I don't know under what, you know, uh, subcommittee authority they're doing this now, I'm not sure, but like if so, they they um officially begin some sort of impeachment proceedings, then why wouldn't it be under the, I mean, Congress's job is to do this, right? I don't understand what's the distinction between attacking Trump that I guess you're hypothetically making versus exercising the congressional authority of

[0:39:06] possibly looking into whether or not he needs to be impeached. Yeah, and and that's

0:39:13 Andrew: A really really good question, and and here is the distinction and here is what this opinion covers, right? This

[0:39:19] opinion says it is a legitimate function of the Congress of the United States to conduct oversight and investigations that will aid them in crafting legislation, okay? And the argument that was raised by the Trump administration was, No, really what you're looking into is whether we committed crimes and investigating and prosecuting crimes is an executive branch function. That's not

[0:39:51] a legislative function.

0:39:52 Andrew: These two opinions do not answer that question. Right. So they do not answer the a proposition, if information is solely useful in conducting an impeachment, then is it a legitimate congressional purpose? They've reserved

[0:40:12] that question for another day. But what they've said is that with respect to taxes, and this is why I don't think it matters, right? Because with respect to taxes, with respect to corruption, with

[0:40:25] respect to collusion with Russia, all of those things are also the subject of legitimate legislative inquiry. They are the subject of bills that will be promoted and proposed in the Congress, right? To require candidates to disclose their tax returns, to tighten

[0:40:44] up the rules on money laundering, and to heighten disclosure requirements and clarify the law with respect to contributions from foreign entities and governments, right? So I

[0:40:57] don't think – it's a really interesting academic question of if Congress were to say all we care about is finding this so we can impeach Trump, would that – is that still a valid legislative purpose? That argument gets reserved for another day, and I don't think a court is going to have to get – I don't even understand what the

0:41:19 Thomas: Argument is. So, hypothetically, if he's guilty of a whole bunch of stuff and it's impeachable, I

[0:41:26] don't understand. Of course they should be able to look into it. What would the alternative be? I'm saying they don't need to meet that standard. No, I get it. But, like, you bring it up. Like, it's all, that's an illegal question that they can answer later. What is even the question? It seems like, of course, that's Congress's job. Is it because if it's an executive thing, then, then that means the president can never, you know, like the the executive

[0:41:51] branch would have to investigate itself in order to lead yes and those are the those are the arguments

0:41:57 Andrew: And I would add, uh, some additional arguments on on top of that, right, which is the the fact that the standard for impeachment is different than the standard, standard for conviction of criminal offenses, right? The fact that high crimes and misdemeanors include things that are not in the United States criminal code, as we've long discussed on the show. All of those are the arguments why I think that position is

[0:42:22] right, right? I don't disagree with you that as a legal principle that that should be the case. What I'm saying is that's an unsettled legal question because this court decided it more narrowly, and everything we want, and everything so far that are the subject of outstanding congressional subpoenas, falls within the more narrow legal grounds, so it deprives Trump of the opportunity to say, oh, I'm going to raise this other

[0:42:53] argument that's unsettled does that make sense um okay yeah yeah Yeah, no, it's just the way you were talking about it. It's confusing to me. I didn't mean to be confusing. In my view, the significance of this is the more you can say that this is a novel legal question, right? That's precisely the kind of thing you put in a Supreme Court cert petition, right? Right? That's the way in which you get to come up and give an activist pro-Trump right

[0:43:24] -wing court the opportunity to make a very, very narrow ruling. I see. Yeah. So, you're

0:43:30 Thomas: Talking more in terms of like legal strategy. You're just sidestepping this, not even opening up the opportunity. Yeah. No, I get it. Okay. That makes sense. Opening Arguments is brought to you by Vistaprint. Listeners, you may not know this about me, but I host a podcast. And one of the the challenges of telling people, hey, yeah, I host the podcast, is people don't know if I'm literally Sarah

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[0:45:52] slash OA. One last time, vistaprint.com slash OA. So that's this order. So now let's go back. The order then says, okay, and you don't get a stay, and we're

0:46:05 Andrew: Going to stay the enforcement of this judgment for seven days for you to appeal to the

[0:46:11] D.C. Circuit. Circuit, um, and and by the way, I want to do a sidebar here because I think it's really, really important and even people that I really like and respect have kind of tweeted

[0:46:23] out the, oh, hey, the appeal of this order is going to the D.C. Circuit, which is headed by Merrick Garland you know, haha, yeah, and I really don't, like, I mean, you don't, don't share that out, don't be a part of that for for two reasons. Number one, we don't know that Merrick Garland is on the panel, right? I just checked as

[0:46:42] of this morning, the three judge panel has not been issued, and it wouldn't matter if if he was. Right, like, this prior to Donald Trump, you could use who appointed a judge as a rough guide to their political affiliation to try and get some sense, but but there was never a sense that, you know, political orientation was going to affect the merits of the case, right? I know, know effect is too broad, right? You would never say, oh, an Obama appointee is going to exonerate Obama because that's who appointed, like, it

[0:47:20] and the idea that Merrick Garland would affirm this or because this is a no -brainer, this is going to be unanimously upheld 3-0 by the panel of the D.C. Circuit. Yeah.

0:47:33 Thomas: And so it almost taints it to, like, try to present it as, like, oh, it's revenge on, yeah, and it is

[0:47:39] not, it is just a faithful application of the law. So on that, on that sidebar, this case has

0:47:45 Andrew: Already been appealed up to the D.C. Circuit, and the parties, right, that is Trump and the congressional oversight committee, have agreed to expedite, to jointly move to expedite the appeal and for the briefing schedule

[0:47:57] to be. Trump's brief due June 12th. Appellee's response brief, the congressional opposition, due July 3rd, two weeks later. Appellant's reply brief, two weeks after that, or excuse me, appellant's reply brief, nine days after that, July 12th. So a one month briefing period, uh, five total weeks, five, five and a half total weeks from today, uh, and then the court hold oral argument as soon as the court deems practicable, uh, which if the court grants an expedited schedule will be within a week of that July 12th date. And I, in I anticipate, uh, that the D.C. Circuit will either rule on that date at the hearing itself or, um,

[0:48:41] you know, within a day or two, uh, thereafter, so mid-July, right? And again, I get it, uh, but but seven weeks from today, we're going to get a ruling from the D.C. Circuit, circuit, that affirms Judge Maeda's ruling in this

[0:48:59] case.

[0:49:01] That's a pretty rapid development. Again, as soon as there is- And then it's sternly worded letter time. No, and then Deutsche Bank has already said in print, the moment that it is required by law to do so, it will produce documents. And by the way, that applies to Deutsche Bank. It also applies specifically here, Mazars. In the joint motion, it says during the pendency of this appeal, Mazars agrees to continue collecting and preparing responsive documents, but not to produce any documents responsive to the subpoena during that period,

[0:49:39] do you worry though that if any of these banks are also

0:49:45 Thomas: Kind of guilty of some, you know, weird behavior? I do. You think this is going

[0:49:51] to to be just, oh, sure, here's all this evidence for you, we'll give you everything? I mean, I am not at all worried about that, and

0:49:57 Andrew: I will tell you for exactly the same reason that we talked about way back in Law'd Awful Movies number, I think, four, right, which was Runaway Jury, right, in which you had, uh, all of a sudden, Gene Hackman worked, you know, for Murder Firm Inc., right, like, and, uh, you know, same, same thing as the firm in, uh, which is also Gene Hackman in in in Law'd Awful Movies number one, um, lawyers

[0:50:22] move jobs all the time, right? Now these banks, these parties are represented by folks like me in in corporate jobs, right? And there is zero chance, uh, that somebody in that position is going to be willing to lie or shred documents. I shouldn't say zero chance, it does happen, but, you know, for example, the law firm representing Mazars is Blank Rome, right? Blank Rome is, you know, they're another Covington and Burling, they're another Zuckerman Spader, they are a well, well-respected, mid-sized city law

[0:51:07] firm that has, you know, thousands of clients, and whose lawyers leave all the time, and these folks are absolutely not going to get themselves disbarred or put themselves in a position to to be, uh, held guilt, you know, criminally liable for, uh, you know, to fall on their sword to protect an accounting firm. Like, they're not going to do that. So greed

[0:51:33] will will save us, free market. There you go, liberal, over here, Andrew Torrez, uh, okay, so the Deutsche Bank, their order came out yesterday, no appeal has been filed as of yet, it probably will get filed to the Second Circuit, uh, while We're recording the show, uh, but they're gonna, it's gonna follow the same path. Right, there, if it, because it's constantly, you know, William Conceval, it's the same set of lawyers represent Trump, it's the same intervenors, right? Right. The House Oversight Committee. And so, if they reached an agreement in the Mazars case, they're going to reach the same agreement in the Deutsche Bank case. And notice that what that provision says is they

[0:52:17] still have to produce the documents in the meantime, right? I mean, not produce, I'm sorry. They still have to gather the documents in the meantime. Right. So, they can't like stall and then be, oh, okay, we'll get to work on these right away. Yeah, that's exactly right. Yeah. So, when we get a ruling in mid-July that says, no, no, you got to turn it over. It's going to follow the same form, right? It will be stayed for seven days. They will make an emergency appeal to the

[0:52:43] Supreme Court. And I think, go ahead, Teresa, mark it down as a prediction.

0:52:49 Andrew: I think the Supreme Court will deny cert. I really do, for the reasons that we've talked about

[0:52:55] before. I think they're going to want to stay out of it. I could be wrong. Wrong, well, plus it should be a no-brainer of a right decision. And by, by denying cert, right, that does not handcuff them later on, right, that it does not, it does not put them in a position where they have to write an opinion that affirms, right? Because that, that would be really, really bad if they, if they grant cert and

[0:53:21] you don't think John Roberts, right? I mean, you know, let's, let's, let's take the the evil thesis, right? Let's say, and I'm not convinced of this, but let's say Neil Gorsuch, Brett Kavanaugh are William Barr clones, right? Let's say that they are personally loyal to Donald Trump and willing to destroy the judiciary to protect him. I don't believe that. I want to be a hundred percent clear. I do not believe we have evidence to support

[0:53:46] that. Let's say that they are.

0:53:48 Andrew: If they are, then you have to think that you can convince Clarence Thomas and Samuel Alito, who have no connection to Donald Trump other than they're just interested in furthering an activist conservative political agenda. You have to convince them that this is in their interest. And you have to think that you can convince institutionalist John Roberts, whom we know cares at least somewhat about the public perception of the Supreme Court, um,

[0:54:19] now, does this mean, I, I don't, I don't want to overstate the institutionalist thesis, right? We have a Supreme Court that gave us Bush v. Gore, right? You know, when it came down to, do we put this guy in office or not, uh, the five partisan Republicans said yes and don't cite anybody, and the three Democrats and one One non-partisan Republican who followed the law were like, no, this opinion is nonsense. So I don't mean to suggest

[0:54:51] that there won't be some big Bush v. Gore moment. What I do mean to suggest is that the brilliance of the disaggregation strategy of having lots of these things is

[0:55:03] it would be very, very hard to pull aside somebody and go, this, this is the hill you need to die on. Make sure an accounting firm doesn't turn over tax information, right? Like, that, that's not quite, that's not the same big moment as Bush v. Gore, right? That's not the same, hey, our decision decides who the president is. This is, our decision decides, you know, if more bad stuff comes out about a guy for whom there's a never-ending treasure trove of bad stuff.

[0:55:34] Um, so, I, I think the Supreme Court is going to deny cert, um, I could be wrong, I hope I'm not, but either way, we're gonna know in seven weeks. Well, mark it down, prediction, Andrew Torrez prediction, uh, cool. Okay, well, we don't have time for anything else, what a shocker, what a shocker, we have no time for anything else, all right, well,

0:56:00 Thomas: Since Andrew Torrez's special ability is super slow lightning rounds, with the speed of a very slow lightning bolt, he gave, delivers us his wisdom, which is great, that's fine, it's good, but, uh, we are going to push the yodeling a little bit, we're going to give you a special Loaded Tuesday yodel, uh, look forward to that, there's going to be yodeling, there's going to be a little bit, a little

[0:56:26] bit of a new segment going on, that, that should be fun, so, uh, so much, so much this week,

0:56:33 Andrew: Right, Justin Amash, Republican congressman, comes out in favor of impeachment, uh, Stephen Caulk indicted, I mean, just so much to do, uh, I, I don't think we could do it justice by trying to cram it

[0:56:45] in, in, in, uh, in 10 or 20 or even 30 minutes here, so, uh, if you like to yodel and you're feeling good about this episode, uh, tune in on Tuesday, all right, well then

0:56:57 Thomas: It is time to to thank our top patrons over at patreon.com/law. I think everybody enjoyed the Sovereign Nonsense 2: Secret of the Ooze. That was super fun. It was good times. So check that out if you are on

[0:57:15] Patreon, if you are so inclined. Oh, and let me jump in. As we post this show, it's getting to be that time again. The months go by so fast, Thomas. They really do. Do, it's time for us to schedule

0:57:27 Andrew: Our, uh, our All Access Ask Me Anything monthly q and a's and patrons at any level get to participate on the thread, that, uh, you get to be the agenda setters, you get to ask and vote for the questions you want to see asked. So, um, yeah, that's another perk of patronage, you get to go on over, ask those questions, upvote with the heart the ones you like.

[0:57:52] Awesome, well, hop on that, and in the meantime, let's thank our Hall of Famers, our all-time greats, and we begin with Increasing

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[0:58:41] cure for ultra virus. Cut maps.

0:58:45 Thomas: We are going to build a Death Star and make Alderaan pay for it. Rapid Offensive Unit Graveman of the Argument.

[0:58:52] Okay.

0:58:53 Thomas: Two Finger Joe's Parole Officer and Arm Wrestling Coach. Stephen Balticatai

[0:59:00] Sandoval.

0:59:02 Thomas: Impeach Bill Barr. The Muller Files. I want to believe the truth is redacted. Milkshake America Great Again.

[0:59:08] Yeah. Detective Pikachu.

0:59:11 Thomas: Investigating obstruction for you. Boutros Boutros Scully, G. Zachary Terwilliger, John Bilderbeck. Hi, I'm Deckard Cain, you may remember me from such games as Diablo. CivilPoliticsRadio.com, Fridays at 7pm Eastern on Valley Free Radio. The Registry Matters Podcast. ClownHornVoting.com has Clown Horning May results available. Oh, cool, ClownHornVoting.com, apparently there's some results available. Check it out, everybody. Buddy, incorrectly pronouncing Latin to avoid accidental summoning of demons. Yes, honey buns, this is one that seems to be incomplete, I just didn't work. Take it, EV podcast.

[0:59:51] Where we talk about sustainable transportation. I don't know, I just, that, that disaster, I don't know, sorry, that one didn't work out. Dataheck.com, business automation, making the menial automatic. Hodas and the Taint Team 2020, Eric Elsman, Thomas Smith is my favorite attorney, Andrew's a close second, Michael C. Samson, Pain Strumpet, Tram Bella Trambolus, Kiwa Valley Exports for Australian Red Meat and Craft Beer, Michael Cohen is a no-talent ass clown, let me be totally clear, I like being totally clear. The Getting Off Podcast, Chris Rowden, Milo Mead Song the Halfling Bard, and SIU Law

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1:00:53 Andrew: Oppose speed limits and seat belt laws, it's a great Unsafe at Any Speed reference, I am very, very

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[1:01:40] a two, redacted, an anagram of Banach Tarski is Banach Tarski, Banach Tarski. All right, GSV Unfortunate Conflict of Evidence, WordOrigins.org, your source for legal terms for 13th century Saxony.

[1:01:55] Effing Robots at the Portland Main Fringe Festival. We need to talk about Bill Barr's sharpie huffing addiction, Derrick George Michael Jackson Brown, Mark Clayton, Richard Simmons Mattresses, listen to Hands-Free Football episode 100 featuring Alexi Lawless, Barack Obama wrote about ChangeOfView.com on Facebook, yeah, I know, I would still be excited about that if I were you. You, Liz, is Franzia

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[1:03:11] glugs, nerds, glug, first squid on the moon, year 2,973 ,004,412.

[1:03:20] We can do it before then.

1:03:22 Andrew: Thomas Explains the Patreon Names is my new favorite segment.

[1:03:27] Zabby, Habeas Corpus Uteri, Adopt a Homeless Pet and Oppose Declawing an Ear Docking. Aaron Grady, Heather L., Jeremiah's Fancy Microwave Emporium, Sakashite, Milkshake a Fascist Today, don't listen to Andrew, just do it, listen to Andrew, Ian and Ally, a human being, Neil Korsuch is a Clown Horning Monster, Eli Bosnick, Mitchell Aaron is pro-cloning so he can cannibalize himself, yeah, he believes in voluntary uh cannibalism, right, this ain't no party, this ain't no disco, this ain't no fooling around, an anagram of Lindsey Graham is Angrily Shamed, and of course our all-time great, our number one, he who shall never be dethroned but use your birth certificate and try anyway, Conrad Michael

1:04:10 Thomas: If you haven't listened to the Law'd Awful Movies that will be very confusing, uh, it's actually, even if you have it will still be confusing because it makes no sense, uh, okay, well, it's time for the bar exam, here

[1:04:23] we go. Uh, am I anywhere near 60? I know, I'm always, yeah, gunning for it. You are, you are, still, you are still very, very near, uh, 60, so keep it up. Oh, no associate this firm has ever failed the bar exam, no kidding, all right, as long as it's not a real property question, I'm sure I can do just that. All right, so question 127 is a real property question, uh, all right, I quit, good night. When a homeowner became ill, he properly executed a deed sufficient to convey his home to his nephew who was then serving overseas

1:05:02 Andrew: In the military, two persons signed as witnesses to qualify the deed for recording under an applicable statute. The homeowner handed the deed to his nephew's friend and said, "I want the nephew to have my home. Please

[1:05:15] take this deed for him."

1:05:17 Andrew: Shortly thereafter, the nephew's friend learned that the homeowner's death was imminent. One day before the homeowner's death, the nephew's friend recorded the deed. The nephew then returned home shortly after the homeowner's death, learned about the deed, and took possession of the home. The homeowner had died intestate, leaving a daughter as his sole heir. When she asserted ownership of the home, the nephew brought an appropriate action against her to determine title. The law of the jurisdiction only requires two witnesses for

[1:05:46] a will to be properly executed.

1:05:48 Andrew: If the court rules for the nephew and against the daughter, what will be the most likely

[1:05:54] explanation. Nation A, the deed was delivered when the homeowner handed it to the nephew's friend, okay. B, the delivery of the deed was accomplished by the recording of the deed.

1:06:08 Andrew: C, the homeowner's death consummated a valid gift causa mortis to the nephew. There you go, causa mortis, 13th century Saxony, alive and well, uh, that is not an endorsement or non

[1:06:21] -endorsement of C, by the way, just a, just a, just a joke. Uh, D, the homeowner's properly executed deed was effective as a testamentary document. So, uh, this is a, a standard kind of bar question that, um, seems like it's going to be an easy one to answer, you're like, when I get it right, like, seems like, but, but then the curveball is, why is

[1:06:46] the easy answer correct. So, oh yeah, definitely. Definitely is exactly my thoughts, it's too easy, I

1:06:52 Thomas: Was thinking. As I was reading this, I was like, I don't even want to think about it. Why do I even try? It's too easy. Never mind. Pass. No, that wasn't at all what I was thinking. This is very confusing, confusing. So, it's weird because, okay, so we're talking about a will. It sounds like he died without a will, I think is what intestate means, right? But I don't know why the will even matters. It's sort of like, what I gather happened is the guy didn't have a will and he realized, oh, I'm going to convey the home to my nephew. And then the daughter is like, oh, no will.

So the daughter is the sole heir, so she should get everything. And so she tries to claim ownership of the home, but it seems like he already gave it to the nephew. So I don't know why the will even matters. It doesn't seem like it does. So then I guess the question is, like, when, when it sounds like the most, it says if the court rules for the nephew what will be the most likely explanation, so I gotta track down the best reason that the house doesn't belong, or I guess the best reason that it belongs to the nephew. So, he properly executed a deed sufficient to convey is home to the nephew, two persons signed as a witness to

1:08:13 Thomas: Qualify the deed for recording under an applicable statute.

1:08:22 Thomas: What's confusing to me is then at the end of the question, it says the law of the jurisdiction requires only two witnesses for a will to be properly executed. But I don't see that that happened. Like, why does this need to be a will? It sounds like it's just a deed.

Like, it sounds like he could, even if he didn't die, you know, maybe he lived on for another 10 years, that he, he still would have deeded, once he delivered the deed and all that, it sounds like it still would have gone. I don't know, I don't understand, it's real property, it's impossible, I don't get it. All right, so yeah, the difficulty here is I don't really understand the difference, like why the will. So, like, if all had gone according to plan and the nephew weren't abroad, abroad, which that seems to be part of this question. Like, can people witness that he did this rather than the actual nephew? I don't understand why this would be a will versus just a deed, or if that matters. But let's look at the answers. A, the deed was delivered when the homeowner handed it to the nephew's friend.

[1:09:23] Could be, I don't know. B, the delivery of the deed was accomplished by the recording of the deed. See, that seems right to me, but it's real property, So it doesn't matter what seems right. But I'm leaning toward B. C, the homeowner's death consummated a valid gift causa mortis to the nephew. That doesn't seem right to me. D, the homeowner's properly executed deed was effective as a testamentary document.

1:09:51 Thomas: So I'm really between B and D. So, yeah, okay. Maybe I understand now. So, is it that the nephew will own it because the friend recorded the deed, the nephew's friend recorded the deed, or will it be that the homeowner's properly executed deed, like before it was recorded, I guess, was effective to say, like, when he died, even though he didn't have a will, we can use this to say he intended to do this, and therefore it shouldn't just go to the daughter. And the answer to that is I have no clownhorning idea because I don't know what trumps what or what's more important.

[1:10:33] I think I'm going to go with B because while it makes sense that the deed would be effective as a testamentary document, I'm between B and D and I'm going to go with B and I have 0.0% confidence in it. So final

[1:10:52] answer, B. There you go. All right. And Thomas, while you were puzzling that over, I

1:10:58 Andrew: Looked up your record, which is 73 for 126, which rounds up to 58%.

[1:11:04] So really, really close to getting over that 60% threshold. And if you want to see Thomas do that, or if you think he botched this one, I don't know. I love it when folks play along with the real property questions. 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

[1:11:29] with never-ending fame and fortune. Fame and fortune not guaranteed. All right, yeah, I wouldn't, uh, I wouldn't bet that I got that one right. I'm always flirting with that 60, but I just can't get over the hump. It's almost like I'm not, not a lawyer and shouldn't be, shouldn't be able to do this. All right. Thanks for

1:11:47 Thomas: Listening. Look forward to massive amounts of yodeling on Tuesday and the yodel forecast. We got the five day yodel forecast says heavy yodel showers on Tuesday. So we'll see you then. And yeah, that's it. Thanks for listening. See you on Tuesday.

[1:12:10] This has been Opening Arguments with Andrew and Thomas. If you love the show and want to support future episodes, please visit our Patreon page at patreon.com/law. If you can't support us financially, it'd be a big help if you could leave us a five-star review on iTunes, Stitcher, or whatever podcast delivery vehicle you use. And be sure to tell all your friends about us. For questions, suggestions, and complaints, email us at openarguments@gmail.com. The show notes and links are on our website at www.openargs.com. Be sure to like our page on Facebook and follow us on Twitter at OpenArgs. Until next time.

[1:12:58] This podcast is a production of Opening Arguments Media, LLC. All rights reserved.

[1:13:06] Opening Arguments is produced with the assistance of our editor, Brian Ziegenhagen, our production assistant, Ashley Smith, and our researcher, Deborah Smith. Special thanks to Theresa Gomez and the entire OAWiki team. Follow them at at @OAWiki and

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