OA405: SCOTUS OKs Execution of Prisoner with Alzheimer's

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 405. Well, this episode is found. Andrew, that's good. So we got past that particular error. How are you doing, Andrew?

0:01:24 Andrew: That's good. Whoo. Yeah. Well, I am fantastic. Thomas. How are you?

0:01:31 Thomas: Fine. Yeah. We can't get into it. No time. So doing well, we've got more bad news to talk about, I think, unfortunately. But, you know, I'm sure as always, Andrew will be here to Optimist Prime us into feeling a little better. I think that's why a lot of us listen to the show. So we're going to talk about uh Trump versus Bob Vance Advanced Refrigeration. I don't know why I made that reference. There was no way Andrew was getting it, but uh it's an Office reference for anyone who doesn't remember, and then we're also going to talk about an awful John Roberts thing that's that resulted in, you killing someone who didn't know what was going, and then. So that's cool. And right? Then I just see in all caps, bar exams. I don't know what that means.

0:01:55 Andrew: Yeah, Yeah.

0:02:12 Thomas: Just the status of them under COVID? Is that? Okay.

0:02:12 Andrew: Well, correct. Correct.

0:02:17 Thomas: I shouldn't read into the all caps. That just seemed exciting, more exciting. We'll see. Well, maybe it is exciting.

0:02:22 Andrew: Bar exams.

0:02:24 Thomas: Woo, bar exam. I don't think I have any announcements. How about you?

0:02:28 Andrew: No, let's get it rolling.

0:02:30 Thomas: Well, shoot. Let's just get right to it then.

0:02:34 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any context during the course of the election? How many times do I have to answer this question? To a large extent, it's corrupt and it's fake. Ask the president of Finland a question, please.

0:02:52 Thomas: You were feeling optimistic about this whole Vance situation. So let's hear it. Let's let's get more into your optimism.

0:02:58 Andrew: Yeah. So I want to break down the briefing and the status conference that occurred last week, last Thursday. And in Trump versus Vance. And again, right, this is in light of the remand ordered by the Supreme Court. This is the case that went back to the Southern District of New York. And the question is, how quickly is Cyrus Vance going to get Trump's taxes from Mazars? And, you know, we dealt with, I don't even know that we dealt with this on the show. I certainly felt like a bunch bunch of people raised in social media in emails to us on the right on the OA Facebook community in Twitter there is a non-lawyer wrote a book about Cyrus Vance dropping certain investigations in New York, um, seven or eight years ago, yeah.

0:03:54 Thomas: Yeah.

0:03:55 Andrew: Yeah.

0:03:55 Thomas: I'm curious because that didn't seem great, but I know it doesn't sound like you subscribe to any sort of conspiracy theory stuff about it. But do you do you not think there is? Well, why don't you explain it a little more? And then I'm curious your opinion on if you think there was some corruption going on.

0:04:11 Andrew: My My opinion is that it is virtually impossible to second guess declination decisions unless you have really, really good evidence. And in those circumstances, what I want is I want evidence from an impartial lawyer, right? Because look, I know I've never been a prosecutor. I know a lot of prosecutors. I've worked with current and former prosecutors and you can always second guess a decision not to prosecute a case and and so that to me like that just doesn't rise to the level of being a a red flag particularly as I pointed out like the converse of this right like you know and And people, you know, sort of were like, well, you know, you thought Bill Barr was going to be fine too, right? To which I would say, you know, okay, good one, right, fair, right. In fact, I did reply fair, I think, to just one.

0:05:12 Thomas: Fair, yeah. One of your, probably your biggest blunder.

0:05:17 Andrew: It is a big one. But remember, the context around Bill Barr that I said was, this seems like an institutional, like, good old boy, George H.W. Bush era Republican, right now, look, some of those people were monsters, right? Right. Like Dick Cheney was in the George H.W. Bush White House. That's not to suggest you're not going to be a monster. It is to suggest your probably not going to be Trump co-conspirator. So I was totally wrong on that. He turned out to be and has turned out to be the primary Trump croak co-conspirator at this point. Right. Like this, again, I've now said this on multiple occasions, but like this disaster master of a criminal enterprise that is the Trump

0:05:17 Thomas: That's okay.

0:06:04 Andrew: Administration would look very different if Jeff Sessions were still attorney general. So, you know, let that one sink in.

0:06:11 Thomas: Yeah, what a world we live

0:06:13 Andrew: What a world we live in.

0:06:13 Thomas: In where Jeff Sessions is not right wing enough for the Republicans of Alabama anymore.

0:06:18 Andrew: Yeah. Is too, is too ethical. Well, yeah, I, I love that too. Can we, can we rabbit trail that that for a second? I, oh, god, I love it.

0:06:24 Thomas: Lost his prime, is the weirdest. What a story, that whole thing. I mean, obviously no one can or should or is or anything shed a tear for Jeff Sessions. Never. But like also what a Shakespearean story. It's incredible. Racist, first one to embrace Trump, first senator, I think, to embrace Trump, right? Goes in there, makes the critical error of having just a modicum of, I won't say decency because it's not that, of, I don't know, of an instinct to, of ethics sort

0:06:30 Andrew: It's so great, no, Yeah, yeah, um, yep, Absolutely, first sitting center, yep, ethics, ethics, yeah, Yeah,

0:07:01 Thomas: Of, like an instinct to go with the rules as they've always existed, you know, like he just kind of, Jeff Sessions just kind of flinched, like, oh yeah, I'll go with how the rules are supposed to be for a second, and that cost him everything. He's not, he lost his primary to somebody with a made-up name who's a football coach, Tommy, Tommy, Tubbs, Tubers, something, I don't even, Timmy Timmy is Shakespearean it is unbelievable.

0:07:06 Andrew: Yeah, Tommy Tuberville, the uh, I, I love everything thing about this story yeah, So,

0:07:26 Thomas: It

0:07:27 Andrew: Not only is it great to see Jeff Sessions, who exactly the way you described, right, um, out, and then because it's a Republican primary in Alabama, basically had to do the Ted Cruz, right, like, get on his back, put all fours up in the air, and, you know, roll over on his, like, you know, and and say, uh, oh, well, I still love the president in every conceivable. I mean, it was, it was so transparent and so demeaning to to watch Jeff Sessions kind of trade whatever shred of dignity he had remaining for a chance to get back in the Senate, and then for Trump to endorse Tuberville and and to wipe the floor with Jeff Session's two to one. On yeah, it was, it was 60 it

0:08:14 Thomas: Was not close, but before but the other part of it is, though, before we, everybody's like cheering, yeah, it's like, no, he lost to someone more Trumpy, like, he, it's work, like, I don't know if it's worse, it's, I think it's better, yeah.

0:08:26 Andrew: It it's, It's not, here's, here's the thing, from political considerations, right, like, it's, this is the inverse of the 2016 presidential election, right, which is to say when the underlying demographics favor your opponent, uh, you want the highest variance candidate that you can, that you get, right? So if you're Doug Jones, you have a huge uphill battle, uh, to win re-election in Alabama. Jeff Sessions would have won 55-45, right, because notwithstanding notwithstanding the fact that, like, Trump, you know, didn't endorse him, like, Trump would have endorsed him in the general election over, right? Like, and all of those Republicans would have voted for Sessions, and Sessions enjoys huge statewide popularity because Alabamba, you know, is a garbage state. Uh, go ahead, write us in if you live in Alibama, we'll we'll take it, um, no, lots of I

0:08:55 Thomas: Yeah, that's true, yeah, yeah, garbage state and by that we don't mean every individual living in these states are garbage, just they're states that are are under Republican control, you know, like, like Georgia, which is now currently they're banning bands. That's a garbage state. Not because of the people in it per se. There are a lot of good people, which I mean, under the control of garbage people is all I'm saying. I

0:09:28 Andrew: Yeah. Yeah, it yeah, it's yeah, exactly right. So look, already out of the gate. So so here's what we do know. Jeff Sessions would have been a very low variance candidate. He's been in the Senate forever. He held statewide office in Alabama for 25 years. He is known and he's a Republican. And I think he would have beaten Doug Jones even in a what I anticipate will be a blue wave election year this year. Tommy Tuberville may turn out to be a disaster of a statewide. He's never run statewide before. And already, if you don't follow Alabama Democrats on Twitter, you should follow them. They are amazing.

0:10:23 Thomas: Know I saw pretty great. Yeah.

0:10:27 Andrew: And again, none of it may matter, right? But you want, right, it's just like when, and I can back this up, when the Republican primary was down to Ted Cruz and Donald Trump, I said very explicitly, I want Ted Cruz to be the Republican nominee. Because Ted Cruz is a way lower variance candidate and the underlying demographics favored Hillary Clinton. Right. Like and there was no doubt in my mind Ted Cruz could not have won Pennsylvania, Michigan and Wisconsin. Right? And there are no other states that he would have picked up that Trump won. Right, so Trump won because of his high variance status. And and it is possible that like most this is still an underdog race for Doug Jones. But I feel a better about his political chances today than I did, you know, two weeks ago. And B, I love the as you put it, the Shakespearean quality to that.

0:10:29 Thomas: Yeah. Yeah.

0:11:26 Andrew: That. So, well,

0:11:26 Thomas: Well, while we're on the topic of your biggest blunder, which was Barr, I will say this because Because I'm very much a fan of trying to be accurate and not misrepresent anything. I believe that when the Republican primary was first going, you know, in like 2015, early 2016, that kind of time, I think I was saying that Cruz is such a known evil that he might be worse than Trump. You know, whereas Trump, I don't, I didn't know like what he stood for because it was all BS. And I truly underestimated just how deranged he would be at first. I think, you know, I think I quickly changed that view as the campaigning went on. But I think Know, I want to own up to the fact that I think for a while I thought Ted Cruz would be worse than Trump. But anyway, what a weird thing.

0:12:12 Thomas: So, but what I wonder too, oh, the last point I was going to make is maybe it's better for Democrats, you Now, assuming this Timmy, two-toed Tuberville is going to win, whoever it is, um, assuming he wins, maybe it's better to have someone who's likely going to be completely incompetent in the Senate, not, maybe not true for the presidency, as we've learned, you might want a competent Republican to be president over an incompetent one, just because of how important the position actually is, but in the Senate, like, you know, like, what, what's an incompetant Republican, it would be better to having an incompetente Republican maybe than to Jeff Sessions, but I don't know, maybe it is all the same because McConnell controls everything anyway, so

0:12:50 Andrew: That was our kind of sidebar on the fitting end of Jeff Sessions' national political career. You know, let's have a Viking funeral. And and now we can talk about the specifics of Trump versus Vance. We got off on that that sidebar by the question being raised in liberal conspiracy theorist circles of, well, maybe, you know, Cy Vance isn't going to be aggressive in prosecuting these crimes. Times. And, and, and I now have three, I did have two answers to that. Uh, I now have three. Right. My first answer was you're misreading the Supreme court's opinion. If you think it only applies to Cyrus Vance district attorney of the state of New York, right?

0:13:36 Andrew: Like the, the opinion applies to law enforcement generally and is a great opinion. So there's no like secret, Roberts did this because he knew Vance was going to go, that's, that's just, that is fillings in your teeth broadcasting secret messages to the Illuminati leveled nonsense, right. The second was that Cyrus Vance is a lifelong Democrat with political and with, with obvious political ambitions, and so, so notwithstanding whatever decisions he made on declination in the mid 2010s, if he, he would be dead as a Democrat, right? Like his, his political career would be over as a democrat in New York if he failed vigorously to pursue the Trump criminal real estate charges.

0:14:31 Thomas: Right. Well, that's the other thing I was thinking, like, even in a worst case scenario, which is Bob Vance, Vance Refrigeration is totally I'll never not think of that. It's such a funny part of the office. But anyway, even if Vance was just totally corrupt back when this first happened and he got a donation in exchange for declining, whatever, like if that were true, that obviously be awful and it would be awful. But people are very self-interested and it could entirely be true that while hypothetically, again, which you seem to think is unlikely, but hypothetically if there was corruption initially in this decision back, what, seven, eight years ago, that things are different now. Now that it might be like, well, the entire world is watching this right now. Like it's literally his name is in the case, you know, that it wouldn't, the circumstances are not the same.

0:14:32 Andrew: And yeah,

0:15:19 Thomas: I wouldn't find this, uh, like even if the worst case story were true about eight years ago, I wouldn't even think that would mean the same thing would happen again here.

0:15:28 Andrew: That's that's exactly right. And now you can add a third argument to it, which is that this at this routine scheduling conference, I will tell you that Vance's office. Now, this was argued by an assistant prosecutor, Kerry Dunn, this was as aggressively litigated as any status conference that I have ever seen. OK, and let me explain why that is. Right. So we all know the game on the Republican side is to delay as much as possible. That was on full display during the status conference. Take a step back. The point of a status conference is to set deadlines. Right.

0:16:13 Andrew: So the court, the Southern District of New York, sent a request to the parties and said, "Hey, by the 15th of July, submit a joint status report on setting scheduling deadlines." And the parties did that. And they came to an agreement on the expedited schedule that I described last, at the beginning of the Friday episode. Right. And that expedited scheduled, again, is Trump to file an amended complaint by July 27th. That's this coming Monday. Vance's motion to dismiss would be due a week after that, on August 3rd. Uh, Trump's opposition would be due a week after that, on August 10th, and then Vance's reply would be due four days after that, one August 14th. That is a blazingly fast schedule, um, in legal terms.

And, and again, you know, as even with the resources of, uh, Vance, his office in the, uh, the, the district attorney's office in New York, like, that that's fast, Okay? And the parties agreed to that schedule. And then the, the judge scheduled a hearing to discuss how to set all of the deadlines. And I'm gonna cut to the chase, right, which I did last Friday. Ultimately, he agreed to the party schedule, but not before saying on the record, "I don't know why you gave me a schedule that took more than six days from start to finish." Right. That is Judge Victor Marrero of the Southern District of New York, keenly aware of what the government strategy is.

0:17:50 Thomas: Yeah.

0:17:50 Andrew: And then I will tell you, Carey Dunn replied to that and said, Your Honor, we are open to a shorter schedule than what's contained in the status report, which delightfully set off Bill Consovoy, the president's, I think I can say, incompetent and ill-prepared lawyer on this. So the point of the hearing was to set those deadlines. It very quickly turned into a debate on the merits because the Trump administration's desire to delay was on full display. Right. So the judge kind of went through and was like, hey, what do you need time to do here? Right. What is it you say you do around here? Right. And and Consovoy was was gave as bad an answer as, you know, Bob gave or who is at the jump to conclusions.

0:17:50 Thomas: Yeah,

0:18:42 Andrew: Matt got right. Like, yeah, Like he gave as bad an answer as you got in Office Space. Right. He was like repeatedly said the president has not yet determined which arguments that he wants to make. So Judge Marrero said, look, the way I see it, you've got three different kinds of arguments here. Right? The first is the breadth of the subpoena. I think I've already ruled on that. The second is, was there bad faith and harassment? And is there a specific standard here as to how that would interplay with the fact that you're the president? Right. Is that is that retaliation against the president or their Article Two separation of power concerns? Concerns and Consovoy's answers were basically, uh, I don't know and

0:18:44 Thomas: We never

0:19:31 Andrew: And I'm not, I'm not kidding, right? He said the president is still reviewing the subpoena and has not decided which arguments he'll raise upon remand. He said that on multiple occasions.

0:19:43 Andrew: Meanwhile, Vance's office answered those questions super cleanly. Said, uh, your honor, you're going to need to see new arguments in order to determine overbreadth, and you've already made a determination that the subpoena is not overbroad, and that the Supreme Court very clearly stated. And this is 100 percent correct. This is part of why we said it was a victory that the standard for review of a subpoena directed at the president in this particular case is the same as any other American citizen. Right. That is to say there was no unique defenses available to the president because he's the president. That's what this whole case was about at the Supreme Court.

0:20:29 Andrew: And that's what the Supreme Court rejected. Want to add, because I love this, Judge Marrero asked the following hypothetical. And by the way, a shout out to Jen Taub who managed to transcribe this word for word in her Twitter feed. So here's the hypothetical question. Suppose a hypothetical district attorney possesses documentary or testimonial evidence showing that entities or people associated with a hypothetical president engaged in criminal transactions that could impact the hypothetical president. And suppose the hypothetical district authority believed this could provide sufficient grounds for an indictment or an exculpation. How should the DA, the hypothetical district attorney, proceed in bringing this information to the court's attention?

0:21:18 Andrew: So I love that. And Consovoy gave the only answer you can give to that hypothetical, which is review, right? The DA should turn all of that evidence over to the judge and the judge gets to look at it, and essentially like Dungate, that's it's the only question that's sort of hard for Vance's office to to to answer, because Constable is going to say all of this stuff needs to be shielded. And Vance would love for all of these to be part of the public record. Right. So Dunn's answer was, know, your honor, if those if those pleadings needed to be filed under seal, then we would be willing to file them under seal. But, you Know, that that that's the best answer you can give on the other side.

0:22:05 Andrew: Right. So ultimately, that's what will happen is that that the subsequent pleadings will be filed under seal to the extent that they reveal information about the president. Right. Like the turning over of the actual records. But I listened to this hearing, and I will tell you the D.A.'s office is taking this very seriously. They fronted the argument for the district attorney's office right in front of the court on multiple times that said, hey, let's not let delay kill this case. Justice delayed is justice denied. And and his concluding statement was, our office's position, your honor, is bring it on.

0:22:51 Andrew: Let's, again, let me discuss how that interacts with the conspiracy theory argument. Argument. If you are Cyrus Vance and you are prepared sneakily to drop this case in exchange for the brick loads of money that Trump is going to give you, or whatever the theory is saying,

0:23:08 Thomas: Would have even been to this point, right?

0:23:09 Andrew: Of course not. Right. There have been a billion opportunities for you to drop this. And right now, all you would be doing is saying like, well, your honor, there is there, we understand that there are important concern. Right? Like you would just agree to delay because because that would be a far better outcome for you, right? Like you could still pretend, it's like, it's like the fighter type taking a dive, right?

Like you, you, you don't come out when you, when you're the boxer taking a dive, you don't come out in round one, walk up and then like, you know, you get one hit in the stomach and you roll to the ground theatrically. Like it's a soccer match, right? Like, you know, yeah, you got to punch back. You got to make it look like a real fight.

And the ideal solution would be to say, yeah, no, we're totally fighting, you know, we're going to come out, but, oh sorry, time just ran out. Right? Like that's what you would do. And the fact that they're not doing that should give you confidence that this case is aggressively moving forward. I'm a hundred percent convinced of that now.

0:24:06 Thomas: You know what? I'm as optimistic as you are on that point. But it also sounds like the court is having none of this delay tactic stuff.

0:24:10 Andrew: None. Yeah.

0:24:14 Thomas: So, you know, all right.

0:24:14 Andrew: It. It. Final briefs to August 14th. The court gets to rule immediately thereafter, and I suspect this judge will be ruling within a week. Right, so end of August. And then the subpoena, 30 days to comply. Mazars will turn over those documents. You know, if there is an effort to litigate up a stay, the time to gather the documents will still run while they're litigating out the stay. And those will be heard by the like because those will be emergency motions. So those will being heard by first the Second Circuit and then then the Supreme Court, and neither court is going to come in and issue a stay here, right? And again, you're thinking the Supreme, but like, look, this was a 7-2 decision at the Supreme Court, right, like, they are not going to stay when they've said that this is a fact-specific inquiry, that would be, that's clearly too far for John Roberts, curious. So,

0:24:43 Thomas: Right, right, right. Yeah, I'll be curious if the like Mazars or whoever it is, if it's the Deutsche Bank or whatever, like, are they going to use that full 30 days? I'm just curious. They just be like, no, we're ready. Here you go. Or it sounds I mean, it doesn't seem like they've been making that much effort to try to give up their prized clients documents. But

0:25:32 Andrew: Yeah, they no, could do so in a way that was confined to this case to say, yeah, man, like, look, usually you get the 30 days because you have to talk to your client and gather documents together. Right. Like, that's the hard part. And they could say, like, well, yeah, we've we've we've known this for a year right, yeah, exactly, we know the documents, they're all in a file, and the only question is, are we legally required to turn them over or not

0:25:48 Thomas: You've had a century to gather these friggin documents. Yeah. Yeah. It should be in a draft email ready to just hit send with the attachment on it or something. You know, I wish the judge would be like, you don't need 30 days. You need three days. You don't needs time for this. Okay.

0:25:58 Andrew: Yeah, Is entirely possible that because counsel for Mazars was present, um, counsel for Mazars I should say, uh, added nothing, right? Right. Said counsel for Mazars takes no position on the joint status statement. Right. And was also present at the scheduling conference and had nothing to say. Right. So, but, but, but, absolutely. Judge Marrero could interrogate counsel for Mazars and say, you know, when he issues his ruling, and say, all right, does Mazars need 30 days to comply with the subpoena? Why? Well, how come you haven't been gathering the documents over the last year and a half? Um, I'm gonna give you five days, I'm going to give you a week, absolutely within the the court's discretion to do that, and um

0:26:54 Thomas: But next question was, maybe last question, all of this result, like, say okay, your timeline's right, and somewhere in August, September, whatever it is, this, the the documents go to Bob Vance, Vance Refrigeration, what do we just see a sealed indictment, and then end of story, and then Trump says, what, a corrupt guy, sealed indictments, nothing, and then it makes no, no difference? Or am I being too negatron?

0:26:54 Andrew: No No, no, like, look, you, there, there, two options, sealed indictment that is then executed when Trump leaves office, on yeah, um, oh, yep,

0:27:26 Thomas: Which is still great. Don't get me wrong. That's still good. But in terms of affecting the election, hold on.

0:27:32 Andrew: Well, that would absolutely affect the election. The other way around, it is to have to

0:27:37 Thomas: Do you think it would affect the election for real?

0:27:39 Andrew: If the Southern District of New York has, has indicted the president in a sealed indictment? Absolutely.

0:27:45 Thomas: I'm pretty sure the Southern District of New York has told, was it just Don Jr.? But I thought Donald Trump as well, that they can't run a charity anymore because they stole from kids. And that makes no difference to anyone. So part of the complicated, part of this question is that already his chances are really, really, really bad, so I mean, it's one thing to talk about now, like, I don't, it may be that this won't affect the election because already he's lost the people that this would lose him, so that's one answer to this, maybe.

0:28:15 Andrew: That. Well, that's right. And so we're talking about right. The overwhelming The evidence has already brought the kinds of people to whom, oh, know, Trump misused a charity. Like, I think that's different than conduct that we may discover has extended through being in office as the president of the United States. I could be wrong on that. And also the evidence might not support that, right? Like,I don't know, right. Right. This could all be, you know, 2000s level conduct. Certainly, the New York Times article was talking about conduct that, you know, goes back to the 1970s. So it maybe I shouldn't have been so cavalier as to say I absolutely think it'll make a difference.

0:29:01 Andrew: But, but, but, I also think, like, we saw from 2016 that that attention is right, like, like, what's being discussed is also a powerful influence. And if, like, in the weeks before the election, what we're discussing is, you know, is, is Donald Trump guilty of real estate fraud, like that? I would rather that be the discussion than, you know, whatever garbage they're going to be leveling at Joe Biden. Right. Right. Like, and look, we are going to have weeks where the discussion is, you know, is Joe Biden senile? Is Joe Biden, you know, a secret pedophile? Right. Like, I mean, like, we're going to have those weeks.

0:29:48 Andrew: And so having that not be one of those weeks, I think, is, You know, Is is good in terms of what the focus is. So that's

0:29:57 Thomas: Right, did you go through all the possibilities? I'm sorry if I stopped you, so we could have sealed indictment, was there another thing that could maybe happen, is there any way we get our eyes on this? Right?

0:30:06 Andrew: Yes. And the other possibility is public indictment with an unindicted co-conspirator, a John Doe. And that John Dole is listed as president dash one. Right. Like, yeah, yeah.

0:30:13 Thomas: Right, listed as uh, yeah, unknown person, uh, 300 pounds with tiny hands, uh, vague description, spray tan, wears a toupee, just tiny hands, stuff like that, you put it together yeah, it's friggin' Jimmy Carter, I knew, knew it.

0:30:26 Andrew: Yeah, a John Doe whose description is, I hear to unknown president of the United States of America. Yeah.

0:30:46 Thomas: Finally, we're going to get him.

0:30:46 Andrew: But but there you go. Yeah. Get him for that peanut farm. So. But yeah, those are those are your options. Good.

0:30:53 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:31:02 Thomas: All Time for our main segment, Andrew, why is John Roberts still the worst?

0:31:07 Andrew: Roberts is still the worst, right? We did episode 400, "John Roberts Is Not Your Friend," that both responded to and anticipated the wave of truly terrible takes about the Supreme Court's term in which it's like people are falling for just the most obviously bad. So if our thesis is John Roberts is a conservative activist who is concerned about the institutional legacy of the Supreme Court, therefore he can be shamed when the activism would be so naked and so transparent as to cause the public to lose faith in the Supreme Court as an institution, and therefore is inclined to depart with the howler monkey contingent that does not care in those cases and only in those cases.

0:32:00 Andrew: All of our available evidence supports that thesis. And yet all of the journalistic hot takes are like, oh, look at how liberal John Roberts has become with extended cluster of exceptions. Right. And that extended cluster is Professor Leah Litwin, who I am trying to get on the show. She hosts her own podcast. She is amazing. And she was quoted as a source for a a FiveThirtyEight article that backs up her analysis with data. I'm going to link it in the show notes. That was brought to my attention. By the way, shout out to Jeremy Riffle at JemRiffster on Twitter. It's the best piece FiveThirtyeight has written in a year. And I say that not just because it supports my thesis, but because it's the kind of stuff that FiveThiryEight was supposed to do. Right. It's like, oh, the conventional wisdom is X. So let's look at the numbers. And I recommend everybody.

0:32:55 Thomas: Yeah. So we looked at the data. Yeah.

0:33:01 Andrew: And I recommend everybody read it. I'm going to give you the top line takeaways. Right? So the one I retweeted out with the article, quote, "the vast majority of cases, Roberts appears to be basically as conservative as he's ever been." End of quote. Right? Yeah.

0:33:19 Thomas: Shocker.

0:33:20 Andrew: It Except

0:33:20 Thomas: Shockers. No one here at this podcast could have told you that except both of us here on this podcast. Oh,

0:33:25 Andrew: Right, both of us, all the time. So what about all the things that, like, show how John Roberts is moving to the middle? And basically what they say is, okay, couple things you need to know. Number one, whenever you have a data set of nine, somebody's gonna be in the middle, right? And being in the middle of a data set of nine does not equate to averaging out, right? Like, like, being being the median does not equate to being the mean. Right. And And then they talk about like Roberts breaking with the howler monkey contingency, and they contrast it with Anthony Kennedy. And I thought this was also where they interviewed and quoted Leah Littman.

0:34:12 Andrew: Letman points out that with Anthony Kennedy, he truly had some iconoclastic beliefs, right? There were a few areas in which Kennedy, by the way, fairly doctrinaire conservative, but liberal on gay rights and moderate on abortion. And so, in other words, when you looked at political issues, you would expect to see the Roberts, Alito, Scalia, Thomas, then conservative bloc hand down doctrinaire conservative positions on gay rights and abortion, which they did. Right. Again, we've mentioned Roberts's strident dissent in Obergefell, but Anthony Kennedy was liberal on gay marriage and sided with the court's liberal bloc to then swing the court over into issuing a liberal decision in Oberkefell.

0:35:06 Andrew: So here I'm going to read directly from the FiveThirtyEight article, quoting Littman. Roberts swings, on the other hand, are driven by more strategic and even political considerations. Quoting Littmann, quote, He's concerned about maintaining his own power and the power of the court, said LittMAN. It was perhaps a biggest sign of Roberts' success that some of the biggest conservative victories this term mostly flew under the radar, are, such as when conservatives continued to expand the circumstances under which religious schools can qualify for public funding, which we talked about in episode 403.

0:35:40 Thomas: Yeah. That sounds familiar.

0:35:41 Andrew: Lippman and others said that Roberts could follow a similar blueprint for eroding something like abortion rights in the future. Rather than overturning precedents outright, He might prefer to whittle away at abortion access by allowing states to pass a patchwork of restrictions until landmark precedents on abortion eventually became functionally hollow, which, by the way, we've been telling you is the game plan since 2017. So glad to see 538, glad to see Professor Lippman on board. There, go get the numbers. And, and, and final line, he's not really a wild card, especially compared to Kennedy, who was genuinely unpredictable on a handful of issues. A better description for Roberts might be the, the pivotal justice, the person with the power to broker compromises between left and right. But there is no support for the thesis that John Roberts is more liberal than John Roberts has ever been.

0:36:36 Andrew: He isn't. And the game plan should still be to shame John Roberts. And to illustrate that, I want to talk a little bit more, this truly angers me, about the Perky decision, Barr versus Perky. As we pointed out, this was, uh, a grant of a stay in the middle of the night. And when you see, when you hear a grant to the state, you're like, well, wait a minute, like, don't you have to stay the execution? Um, here's what happened. Okay, Wesley Perky, 68, suffering from, from Alzheimer's, filed a petition for the U.S. District Court for the District of Columbia. He is incarcerated in Indiana, but he is incarcerated for a federal crime.

0:37:25 Andrew: And so he will be executed in Washington, D.C. So, filed a, a petition in U. S. District Court for the District of Columbia pursuant to a Supreme Court decision. That Supreme Court decision is called Ford versus Wainwright, and it's a 1986 case which says that what you have to do is you have establish a threshold of factual circumstances, circumstances, to entitle you to an evidentiary hearing to show that you are mentally incompetent to be executed. Went to, to DDC, and the court held that he met that threshold and so said, okay, we're going to stay his execution and we're gonna hold a, a hearing to determine his competence.

0:38:21 Andrew: That's what this is about, right? This is not about letting him go. That is about should we investigate whether this person is mentally incompetent to be executed by the United States government. The government then appealed that directly to the Supreme Court because this is one of those rare procedural things with death where you get to do that. And in a 5-4 decision, per curiam, so no majority opinion, only dissents, right? And I'm going to talk about both sets of dissents in a minute.

0:38:58 Thomas: Does that mean they didn't have the guts to sign their friggin names to this thing and actually write about Why they want to kill a person who doesn't, yeah? All

0:39:02 Andrew: No just Stayed the effect of the district court's decision, which then allowed allowed the execution to be carried out. So that moots all the rest of the stuff on the merits because, you know, now Perky has been executed as of as of the time that the show was recorded.

0:39:24 Andrew: So, let me first talk a little bit about the evidence. Right, psychiatric evaluation, late 2019, that he lacks a true understanding or rationality that the murder is the basis for his execution. There is extensive evidence that Perkey earnestly and steadfastly believes that the government plans to execute him not as punishment for murder, but in retaliation for his, quote, "protracted jailhouse lawyering to expose prison abuses." That's in the psychiatric report. Mr. Perkey has a fixed belief that he is going to be executed in retaliation for his legal work to prevent him from being a hassle for the government. Consistent with such evidence, individuals have described Perky's, quote, "history of delusions, hallucinations, and paranoia." Of This is not to Say he definitely can't be executed, but is to say maybe a court ought to have the power to hear evidence from both sides as to whether this is somebody who truly understands why he is about to be executed.

0:40:24 Thomas: Right. And, and, you know, before, I'm sure some people out there are thinking, ah, what if this is flimsy, what if he's faking it, whatever, this correct me if I'm wrong, but this decision would have been handed down by the Supreme Court as though they're taking for granted that he has no idea what's going on, right? Like, that they didn't, weren't The, the facts, not under dispute?

0:40:42 Thomas: This Bad Decision would apply if literally someone, you know, like aliens come down and wipe someone's memory, like, that Would, that would still fit under this decision Because it's like we don't even care, we're not even gonna have a hearing about It

0:40:24 Andrew: Yeah. Correct. Correct, that is, that is exactly Correct. And, yep.

0:40:49 Andrew: It Again And again, that's the answer, right? Like, if you think he's faking or malingering, then prove it, right, in, at a competency hearing.

0:41:02 Thomas: Let him Prove that he's not, I guess? Right. That's

0:41:02 Andrew: Right. Well That's The thing, right, at a comp, I was just about to say that, at a competency hearing, the burden of proof is preponderance of the evidence, right? It's, which side gets to 50.1, right? It is not, right, the burden of proof is not beyond a reasonable doubt that you understand the reason why you are about to be executed, right? So there is no presumption of innocence at this point. All it is is what does the judge think is more likely, that this guy understands why he's going to be executed, or that he doesn't understand why he going to executed. And if you can't reach that level, right, and again, ties go to killing him. Right. Like

0:41:39 Thomas: That's America's new catchphrase. Ties go to killing him, that's again, that's That's pretty much America in a nutshell.

0:41:41 Andrew: Yeah. Yeah, and the Supreme Court said said no. And bad and as all that is. And that's really, really bad. It gets worse because and here I'm quoting from the dissent, but I have reviewed the pleadings on the application for stay. And this is a correct summary of the argumentation. I'm just going to read to you from the Sotomayor dissent. This is the the the four person dissent. Importantly, the government does not appear to dispute that Perkey may advance his competency claims in a proceeding in the Southern District of Indiana. Indiana. Now let me give a sidebar. So, yes, the government's primary argument here was, oh, you filed this in the wrong court. I wish I were lying about that. Okay.

0:42:36 Thomas: Uh, you're dead right.

0:42:38 Andrew: Continuing, it identifies no procedural barriers to such a suit. Indeed, the government proposed below that the district court transfer the case to the Southern District of Indiana because in the government's view, that is, quote, the appropriate forum for Perky's habeas action, end of quote. It is thus undisputed that there is a district court in which Perky may properly pursue his Ford claim. And again, it's called the Ford claim because the Supreme Court case was Ford versus Wainwright, 477 U.S. 399 from 1986 and his request for a competency hearing. So let me unpack that for just a second. And again, I want to describe the actual strategic considerations on both sides, right?

0:43:23 Andrew: For Perky's lawyers, they looked at the situation and they said, well, he's incarcerated in Indiana. He's going to be executed in the District of Columbia. We probably stand a better chance at getting a more sympathetic judge in D.C. than in Indiana, 100% that that calculus entered the room for him, right? It would be, I do not want to pretend otherwise. But I also want to tell you, like, lawyers do that kind of stuff all the time, right, like Lawyers on, like, you figure out if you could bring a case in multiple fora, you figure out the best possible place in which you can bring it, and you bring it there. And they brought it, and they got a stay, they got a stay of the execution, and an order that a competency hearing be held.

Now, had the Supreme Court decided to uphold the stay but transfer the case to Indiana, I wouldn't have any arguments here, right, and and I would be taking the headlines and saying, no, right, I'm sticking up for John Roberts here, right? Uh, this, this is, this is actually procedurally fine. It's, it's probably true that the better forum for raising a habeas petition is in the, the jurisdiction encompassing where he's currently incarcerated. That, I want to be honest with you, that's probably the better procedural argument. If John Roberts were the secret moderate that people are pretending he is, that's what he would have done. That is not what John Robert's and the conservative majority in this court did, because this majority does not want to afford future criminal defendants additional procedural rights.

0:43:55 Thomas: Right.

0:44:22 Thomas: Ever

0:45:11 Andrew: That is the only reason for the result in this case, which is on a procedural argument saying, oh, well, you know, sorry, too bad you didn't file it in the right court. Oh, well. Better luck next time. Oh wait, this guy's going to be executed. That's not flippancy coming out there. That is anger with the result. Right. Like, this is an indefensible result. The idea that this would get Alito and Thomas. Yeah. Right, Alito. And Thomas are, you know, prepared.

0:45:43 Thomas: Met a defendant They didn't want, want to kill or something, or a convict They didn't want to kill

0:45:44 Andrew: Right? Right. Yeah Right. I expect pure evil from that segment. But this is the majority of the court's ruling. And again, overturning the district court, so saying that the government's argument is so strong as to be indisputable, let me not be hyperbolic, saying that, that the government has met the standards, right, for substantial likelihood of success on the merits to overturn the district court's decision in this case, which, um, that, that's just not true, right? Like, that there is, it is not true that the law is, is that strong, uh, and that, uh, and that the appropriate remedy here is making sure nobody ever gets to make that determination, because that's what's happened. Now, that's, that's the end result, nobody is going to make the, the determination as to whether Mr.

0:45:47 Thomas: Yeah.

0:46:42 Andrew: Perky understood why it was that this country wanted to kill him. And I have to think, we have listeners, some, we have a liberal audience, we have to make, we have some who are pro-death penalty. You and I have been very staunchly anti-death penalty, of where you are on the political spectrum. If, if you don't want that bare minimum of protection, if you don't want a criminal defendant to at least have to understand why he's being executed, um, I, I can't understand how a thinking human being gets to that perspective. Right, like, there is no justification for punishment, right? Uh, deontological, conti, and lex talionis, utilitarian, right, like none of them can support executing somebody who doesn't understand why he's about to be killed.

0:47:35 Thomas: They didn't even say like, okay, we get that you tried to forum shop a little bit, we're gonna put a stop to that and try again. They just said you tried that and now he dies because he tried that. We didn't agree with it. I mean, I, I don't know.

0:47:49 Andrew: Have to infer because, again, the majority gave no written opinion. They just right.

0:47:54 Thomas: Oh, right. Yeah. They didn't even tell us what they think.

0:47:56 Andrew: They didn't tell us.

0:47:58 Thomas: Wow. Not a fan of John Roberts. Not a fan.

0:48:01 Andrew: Yeah, yeah. That's right. Don't tell me John Roberts is a secret moderate or a secret liberal.

0:48:05 Thomas: Well, this is a really frustrating one. That's a shame. This is real bad. And I really hope we can do something to fix the court in in a few months here. Hmm oh

0:48:14 Andrew: Yeah, I I have a plan for that. So we'll we'll roll that out. So I guess we're to wildcard the bar exam segment. Here's what I want to say in five seconds about that. I'm going to include the NCBE, the National Council of Bar Examiners link in the show notes, just like I did last Friday. If you are planning on taking the bar, check it out. Lots of jurisdictions and it doesn't necessarily track, you know, red states, blue states. Lots of jurisdictions have gone either to online bar testing in the fall or alternative arrangements. We're going to do a show on this in the future. Didn't get a chance to do it today. Sorry. Sorry, but but most people who are taking the bar are, you know, busily studying the summer or get you get you.

0:49:08 Andrew: You do get a stay, a reprieve probably until until September or October. So I want to talk about the story, but not today.

0:49:21 Clip: And thank you, Let's go!

0:49:22 Thomas: Right, and now it is time to thank our top patrons, our Hall of Famers, our all-time greats on patreon.com/law. Hope they're enjoying the benefits. Yeah, again, A Law'd Awful Movies, if you haven't listened to it, go catch it, it was a lot of fun. Legal Action, which contained almost no action, maybe none. And We are thanking this week the great Dooku Tree, awesome, I assume general, general Zelda reference, but specifically, I think, Ocarina of Time, my favorite game, like ever. Thomas Kleberg, Bradford Keating, Mary Perez, Anne Schmeckel, Proceed on Your Way to Oblivion, Amicus Flinch, Dan from Deerfield, No Shortage of Dicta in My Briefs.

0:49:39 Andrew: Yeah

0:50:09 Thomas: We firmly stand for the proposition here on Opening Arguments that we are 12th, and we'll always laugh at things like that. My Intro to Law Cases Are Real Property 2020 Just Keeps Giving. Well, I can help you out with that, um, need any tutoring, let me know.

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0:53:46 Andrew: Yes all right

0:54:34 Thomas: Republicans are fascists, and hotspear.com grants six impossible certs before breakfast. Take it away, Andrew Torrez. Well,

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0:56:13 Andrew: That's excellent, that's so funny, Superior May Be Going Too Far, But I'd Like a Show Comparing Civil Law and Common Law Systems, that's on the whiteboard, man, Eric Holtzman, Me Fail Presidenting? That's Impossible, The Landmark Supreme Court Case of Kramer Versus Kramer, Dustin Hoffman Classic, Abseon, Therese Chan, Pain Strumpet, Trambolus, Napoleon the Wandering Gambler, that one more time, Akata Brawa, Japan, Oxygen Dependency Is a Liberal Hoax, Milo Mead Song Stands in Solidarity with the UW Nurses and Their Union, Gay Frogs Murder Hornets and Karaoke, Join Your Labor Union, Together We Bargain Alone We Beg, wait, wrong list, these are the people who sent us Crunchwraps, oh my gosh, that would be so great, um, I, we do need, we never publicly gave a shout-out for the uh homemade Crunchwraps that Teresa posted the pictures of I didn't get mine either. Mine was sent to Iacon, so oh

0:56:59 Thomas: I never actually got mine, Teresa. Well, mine was sent to the right address, but I mean, sorry, Sorry, mine was clearly addressed correctly based on the picture, but I never got it. So, yeah, maybe there wasn't a stamp. What's the equivalent of a Crunchwrap stamp you put on it? Some hot sauce or something?

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0:57:21 Thomas: Yeah.

0:58:31 Thomas: So good.

0:59:00 Andrew: Don't take legal advice from laser beam monstrosity attorney at law, Heather L., Jeremiah's fancy microwave emporium, Ian and Allie, Danny Rosari, Eli Bosnick, Sam Donow. This was such a great episode covering eminent domain. I'm so glad you finally got around to it. Yeah, me too.

0:59:15 Andrew: Sam Buck, Mitchell, no commute, so behind on podcasts, staying in the William Howard Taft hotel room of life, uh, great, great reference to our Law'd Awful Movies, Alexandra Chalupa aka Natasha Crunch Rap, Michael Conrad's, and of course our all-time great Conrad Michaels.

0:59:33 Thomas: Good times. That was fun. That put me in a better mood. Thanks for that, top patrons. You're the best.

0:59:36 Andrew: Thank you you are, yeah.

0:59:40 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:46 Thomas: T3BE answer time, let's hear it. I'm

0:59:49 Andrew: Right. So this was, you know, a totally straightforward and simple real property. No.

0:59:57 Thomas: Yeah, I'm gonna feel like an idiot, I'm sure, after this all

0:59:59 Andrew: This was a completely incomprehensible real property question that that no, no layperson could could possibly get correct. And therefore it pleases me to tell you, Thomas, I'm going to spoil everything in in advance, you got this question exactly right, picking B. So um

1:00:21 Thomas: Right how was my analysis I felt like I got into it a little bit and there was a chance that I got, but did I, I luck into it or did I actually analyze it right? Holy crap What is happening I'm a lawyer sorry

1:00:29 Andrew: It, you analyzed this uh almost entirely exactly correctly. Yep. It was fantastic, yeah. So here's So here's the question, right, this is a man decides to give his farm to his nephew. And and this is the first trick here, because the bar question uses testate and intestate, whatever. But remember that the initial question is not about a bequest, right, is not about a will, but is, in fact, just about a simple contract. Right. Right. And in fact, that simple contract is, it appears in the answers, what we call a death escrow. OK. And a death escrow is exactly what it sounds like. Right. A death escrow is, hey, I'm going to give this thing to you. And when I die, I want you to give it to somebody else.

1:01:27 Andrew: Right. That's what the man has, has, then, um, it says, uh, right

1:01:33 Thomas: He but he still has the farm, what do you mean he's going to give it to somebody else

1:01:36 Andrew: So So the man says, uh, hey, um, I, this is the deed to my farm, I'm giving it to my lawyer.

1:01:43 Thomas: Yeah, so the attorney has it in escrow essentially

1:01:45 Andrew: Yeah. Right. Exactly, exactly right, uh, gonna continue to live on and, you know, utilize my farm and all that good stuff, uh, but when I die I want you to give it to my nephew. And then he adds, oh, by the way, um, if I change my mind, you know, I ever asked for it back, you're gonna give it back to me, right? Um, and then, uh, next, totally nonsensical, totally bogus distractor, none of the instructions to the attorney were in writing, utterly irrelevant to the question, you almost went with A, and I was just sitting there like biting down hard because, because, again, you are correct that when you're talking about wills and and deeds and and those sorts of things that there are often writing requirements. But remember, the contract here is the contract to deliver the the deed. Right. So you're really using what is almost ordinary contract principles with respect to can you instruct your lawyer to give somebody something after you die? Then next big distractor. Shortly thereafter, the nephew died testate, right, and by

1:01:46 Thomas: Okay.

1:02:16 Thomas: Interesting yeah

1:02:56 Andrew: The way, 100% correct. Died testate means died with a will. Right? Right. Yeah. In his will, he devised the farm to his daughter. All of this totally irrelevant to the question. Doesn't matter. Yeah.

1:02:59 Thomas: Yeah yeah I don't know if that's irrelevant to the question given that the very question is must the attorney deliver the deed to the daughter, I mean, it's relevant but

1:03:14 Andrew: OK, well, it but but not relevant to the outcome, because what you need to know here and what you sort of piece together by intuition is that a death escrow is a valid contract. It doesn't have to be in writing. It can be oral. But for a death escrow to be valid, it must be unconditional. I

1:03:16 Thomas: Yeah that's kind of what I was getting at, like I don't feel like he could will something to his daughter that's not really, he didn't really have, yeah yeah

1:03:43 Andrew: Yeah. Yeah, well, that's the thing is, the question is, does he have it? And so if I, if I go to my lawyer and I say, Hey, um, you know, give the deed to my house to Thomas when I die. And that's all I say. And then I tell you about it. Like you, you have that, like you, you own that future possessory interest in my home and you own it and fee simple. Right.

1:04:08 Thomas: Yeah I friggin nailed this question, everybody feels good to get one

1:04:16 Andrew: But if I go to him, I, I'm going to give this to Thomas unless I change my mind. Well, then I haven't done anything. Right. That well there's like cool, uh, and yeah

1:04:20 Thomas: The lawyer's like okay, all right fine lawyers like I can bill you for this, right? Yep, yeah.

1:04:28 Andrew: Exactly, uh, and and and it has no legal effect because I haven't done it, because I hasn't placed it into escrow, I've placed it into non-crow, right? Like I've places that I can get this back anytime I want, well then you haven't done anything, and that's that's all the question was asking, there's a perfect example of the kind, question super complicated, all sorts of crazy conditions, and just if you stop and think about it and apply common sense, you can work your way through it, and you did, and I couldn't be more proud of you.

1:04:40 Thomas: Yeah.

1:05:01 Thomas: Well, way to belittle my accomplishment by saying it's actually easy, as long as you just think about it for two seconds and apply good old-fashioned horse sense.

1:05:03 Andrew: No it's not, it's super, it's Súper duper

1:05:09 Thomas: I think you needed to be an expert attorney in the field of real property to get this one right. So why don't you hop in your time machine and tell us who else was an expert in real property and is a brilliant lawyer and got this one, right?

1:05:09 Andrew: Hard oh man Well, Thomas, you'll be pleased to know that we got A, B, C, and D answers from our fans. But the first winning answer, I believe, belongs to Joseph Couch, who is running for the state legislature in Nebraska. Anyway, he writes, are they just making up words now? It would be cheating if I looked these up, right? I'm guessing B. It has the fewest words that I don't know, and the nephew died first, so the whole plan is crap. There's no way it, it was legally delivered and it needs to be in writing, question mark, well, not sure that the mechanism is correct, but, uh, Joseph managed to guess B, that's correct, and everyone give Josep a follow on Twitter, that is at JOSEF4NE, j-o-s-e-p-h-f-o r-n-e and congratulations Joseph on being this week's winner, and best of luck to you. Yeah until

1:06:17 Thomas: Well, that's our show. We Thanks will see you on Friday

1:06:20 Andrew: Then

1:06:21 Clip: He's not even a lawyer and he's kicking your ass.

1:06:53 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.