OA411: Trump Guilty of Bribery? with Randall Eliason

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 411. I'm Thomas, that's Andrew. How are doing, Andrew?

0:01:23 Andrew: I'm fantastic Thomas, how are you?

0:01:25 Thomas: I am fantastic as well. I am excited for the return of Randall Eliason. It's been way too long. He's mentioned all the time on this show.

0:01:33 Andrew: No, we call him friend of the show, but lately he's been, you know, frenemy of the show, so we've got to, well, maybe not, so but yes, I am even more fantastic than usual awaiting the the illustrious return of our friend Randall Eliason.

0:01:38 Thomas: Oh, oh, okay.

0:01:50 Thomas: Are- Well, before we get to that, we're going to talk about something that got wiped off the whiteboard last week because of the huge news over the NRA. So I'm glad we have this time now to that. It We talked a lot in the SIO you did, as I mentioned the other week, we talked about you know how Trump might steal the election, uh, how he might try to limit voting by mail and all that stuff. And I, there's just always more questions on this, and I, I know you have, you have an update on this, and people are worried about what he might do still to jeopardize voting by male, so what's your update?

0:02:05 Clip: The law breaking down

0:02:36 Andrew: Yeah. So this, I think, fits nicely into that discussion. And it is a look at a bipartisan bill just passed in Nevada and looking at Trump's response to that Nevada bill, which, by the way, was to sue for an injunction to block this particular piece of legislation from going into place. And as always, right, with Donald Trump, you know, there is a tweet for that. Right.

0:03:04 Thomas: Uh-huh.

0:03:04 Andrew: Maybe we should start with that, because I think it reinforces a key point that you made on SIO that I think is not getting airtime in, you, you know, our circles, in left wing circles. And it is this: voting by mail in and of itself is not necessarily going to advantage one particular party or another. Right. It is entirely conceivable to construct a vote by mail system that would help Republicans. Americans, here's really good intuitive proof of that: on the same day Trump sent two different tweets, this was last week, Trump said, "Absentee voting is great, it works, like in Florida, they'll do absentees, it really works. But universal mail-in ballots is going to be a great embarrassment to our country."

0:04:05 Andrew: And on the same day, he writes, "Nevada has zero infrastructure for mail-in voting. It will be a corrupt disaster if not ended by the courts. It will take months or years to figure out. Florida has a great infrastructure over years with two great Republican governors. Florida, send in your ballots." So, um, that's kind of a tell, isn't it, that, uh, that Trump is in favor of voting by mail in Florida and opposed to voting by mail in Nevada, and it's really, really easy

0:04:05 Thomas: I- Wonder

0:04:39 Andrew: To see why.

0:04:39 Thomas: Yeah. There's no way we can decode this one, Andrew. Oh,

0:04:43 Andrew: Yeah, um, it's super easy to decode, and that is because Nevada's, uh, recently passed, this is AB4 is the code on it, Assembly Bill 4. It is now law in the state of Nevada. And it, following sort of the breakdown that we did on SIO, establishes a second category of voting within the state, right? And that category is now mail ballot, as opposed to an absentee ballot, right? Right. And we talked about how voting by mail in most states is a subset of the absentee balloting process. And then the question becomes, does the state require you to give an explanation or an excuse for why you cast an absentee ballot?

0:05:35 Andrew: Do they say that covid is presumptively an excuse or that or, you know, do they require you to jump through some other kind of hoop, right? That's why Trump likes absentee ballots, particularly in a state like Florida, which says, hey, you have to cast an absenteeing ballot. You have to give an excuse. And by the way, being over 65 is a presumptively valid excuse, right. That has to do with the demographics of people who are Trump supporters. Nevada tried to and and succeeded. And I think that Trump's lawsuit has zero chance of success. We're going to break it down. Um, What Nevada did was create a separate class of mail ballots. And they provided that, uh, every registered voter is going to get a mail ballot.

0:06:26 Andrew: That, that ballot will come with self-addressed stamped return envelope and a special little envelope to ensure that your vote is secret, right? Like, in other words, this is providing real infrastructure to get mail-in ballots in the hands of individuals well in advance of the election, and to treat it as a process separate from the absentee balloting process, right? So, to try and expand the electorate, as I pointed out, this bill was widely bipartisan in Nevada. It was passed 29 to 12 in the Assembly, and 13 to 8 in the Senate, and

0:07:10 Thomas: You're got a pretty sparse numbers in their Congress. Okay, is anybody here? We're going to do a bill. There's a couple. I see a few over there. Okay, let's pass a bill like 20 people. How

0:07:13 Andrew: Exactly. Exactly.

0:07:24 Andrew: Is interesting is that the lawsuit that Trump has filed is predicated on a on exactly one provision. Vision. I'm going to talk about that in a minute. But the provision that it's predicated on is not the thing that bothers Donald Trump from a political standpoint, right? What bothers Donald Trump is that Nevada got together and said, we're going to create a new mail-in voting system. It's not going to require you to give an excuse. And we're gonna put those ballots in the hands of every registered voter in the state. Keeping in mind, by the way, that Nevada is one one of the places where Trump can play offense in 2020. There are not a lot of these. The map strongly favors Joe Biden at the moment, right?

0:08:12 Andrew: In the sense that if you take just Hillary Clinton's results and swing Pennsylvania, Wisconsin, and Michigan, all of which have shown very healthy leads for Joe Biden at current polling time, then that reverses the result of the election. And also, Democrats have pulled well and have made serious inroads in states like North Carolina, Florida and Arizona. So places to go on the offense. However, there are places that Donald Trump can go on The Offense. Right. So Nevada is one of those states. Minnesota is one one of those states. New Hampshire is one of those states so in those areas right the idea is to implement the Republican playbook to make it as hard as possible for Democrats to vote and as easy as possible for Republicans to vote.

0:09:09 Andrew: That's what they want to do. So it makes sense that Trump has sued for an injunction blocking a before from going into effect, and that hearing will be any day now.

0:09:18 Thomas: In the world? Sorry, if I'm Missing something obvious, what even would be the grounds for the president to sue a state for a bill that they're doing to make their election a little better in the time of COVID?

0:09:21 Andrew: Yeah Yeah. Yep. So. So let's go through it. And as always, let's use the O.A. method of reading the complaint, starting at the caption and then reading backwards. Yep.

0:09:35 Thomas: Oh, okay. Yeah. Larry Klayman Oh, No, right.

0:09:43 Andrew: Close. So first we look at the capture and they have sued Barbara Segavosky in her official capacities, the Nevada secretary of state. The plaintiffs are the Republican National Committee, the Nevada Republican Party, and Donald J. Trump for President Incorporated. Right. That is the president's reelection campaign, but not the president himself. Right. And why is the the president'S reelection campAIN the one bringing this lawsuit? Because that way he can pay his lawyer, Bill Consovoy. We're going to skip to the signature block in a minute out of campaign contributions. So, yes, that's Right. Your dumb ass uncle in the MAGA hat who just sent 10 bucks to keep America great again or whatever, all of that money could be sent to Donald Trump's personal lawyer, Bill Consovoy, because he also represents the Trump campaign. Um,

0:10:25 Thomas: Right. Right. Look, There's a real theme of, don't know if you'd call it embezzlement, what would you call this, just Yeah, grift. Yeah, thank you, there's real grift theme to the show lately. I, could it be that this lawyer is just feeding Trump all kinds of nonsense about the kind of cases that he might be able to win if he does it just so he can bilk money out of the campaign to tooth, yeah?

0:10:47 Andrew: Yeah. Yeah. Yeah, It That would be, again, let us be perfectly clear, so that Bill Consovoy does not sue us. Um, number one, uh, Bill Conzovoy is a terrible lawyer, okay, sue us, sue us on that one. Big boy, bring it on. Opening arguments he Is he? Oh, um, I cannot prove, prove that he is, that he has a super wealthy client who has found an unlimited pot of money that he doesn't care about paying people out of, and is inducing Donald Trump to file idiotic lawsuits out of that giant pot of money. But I can say that his conduct is consistent with somebody who has done that.

0:11:12 Thomas: Hey, I bet she's making more than you, Andrew, yeah.

0:11:38 Thomas: So What can I say, as someone who doesn't care about getting disbarred or something, seems fishy

0:11:42 Andrew: You can say that, uh, Consovoy's oral arguments have been, um, uh, as, as underwhelming as anybody not named Larry Clayman that you have ever seen. Um, so, yeah, so we, like I said, we, uh, we page down to the caption, this is Bill Consoboy, who again, it cannot be overstated how terrible a lawyer he is. Right. Like, I I, he's not in Jay Sekulow territory, but like he's in that next pile of crap up, of like, just incompetence. Right. And and has been repeatedly ill prepared in in every case in which I have seen him argue or draft pleadings. And and this is another good example of that. Right. So so this lawsuit, 25 pages long. Now we get to go to the five counts. And I am not going to talk about counts two through five, because counts two through five are garbage.

0:11:55 Thomas: Yeah.

0:12:46 Andrew: They're so bad that I don't think William Consovoy expects to win on them. Right. So you've asked what are the grounds for the Trump campaign to sue a state for making its voting easier? Year, um, counts two through five are various allegations that the law violates the equal protection clause. And as you know, from our extensive discussion on equal protection clause jurisprudence, uh, With the exception. Of cases involving gender, which. Fall under intermediate immediate scrutiny. In general, equal protection clause cases fall on one of two polar extremes, right? Either you are litigating on behalf of discrimination against a protected class or for a fundamental right, And that gets strict scrutiny, and the law is almost certainly struck down, because it must be narrowly tailored to achieve a compelling governmental interest, interest in the least restrictive means possible.

Those are typically classifications on the basis of race, for example, right? Or the law draws classifications on the base of a non-protected class and not a fundamental right, at which point you get rational basis scrutiny, and the law is upheld, right? So, good example of that, state were to pass a law that said, you know, no shirt, no shoes, no service law, right? Like, well, that would discriminate against a class of people, right, it would discriminate against the class of people who go into the 7-Eleven without a shirt on, but,

0:14:23 Andrew: Yeah, but It would, it absolutely would, a prima facie case of discriminating between two classes. But we don't think shirt wearing is the kind of class that deserves heightened protection. So you would just have to show a rational basis. That rational basis would be, you know, hygiene, for example, right? Like, it's kind of gross to go into the 7-Eleven without your shirt on, put a damn shirt on. That Right. Would be it. Right? Right. So Equal Protection Clause, and I know before you write in, I'm oversimplifying, but, you know, it can be oversimuplified in this case. That's Your Quick and Dirty Guide to Equal protection clause violations. Right. So count two alleges that it's violating the right of rural voters in the state of Nevada. Well, you Know what? Living in rural areas is not a protected class under the Constitution. Right. And all of these counts are going to be resolved on a rational basis standard. And Trump has not a shot in hell of winning any of them. So that leaves count one and count one is interesting.

0:14:22 Thomas: Shoe haters, I guess. Yeah, yeah.

0:14:44 Thomas: Yeah.

0:15:30 Andrew: It's interesting because it says that there is a violation of 3 U.S.C. 1, 2 U.S.C. 7, 2 U.S.C. 1, together with the Federal Elections Act. And the Elections Clause, the Electors Clause and the Supremacy Clause. What does all of that mean? That is a bad lawyer's way of pleading for a declaratory judgment on one incredibly narrow provision of Nevada AB4. And I'm going to read that provision to you first, and then let you guess as to what you think the argument being raised by Bill Consovoy is. Yeah.

0:15:52 Thomas: Okay.

0:16:14 Thomas: You're really good, it's gonna be hard for me to get into the mind of a bad lawyer, but I'll try, I

0:16:20 Andrew: Section 20 of the bill is the eligibility of a mail ballot, right? 1A says, uh, if the ballot is, before the time set for the closing of the polls, delivered by hand to the county or city clerk, as applicable, or at any ballot drop box established in the county or city, as applicable, right? So that makes total sense, right, during Election Day, if you drop it off at the appropriate office or in one of the drop boxes, the ballot counts. Section B, if it's mailed to the county or city clerk, and it's either postmarked on or before the day of the elections, November 3rd, and received by the clerk not later than 5 p.m. on the seventh day following the election.

Okay, mail's super slow for all of the reasons that we may have discussed on SIO. Long as it's postmarked the day of the election, it gets in, it's fine. Trump does not challenge either of those two provisions. Here's what he does challenge, 20 subsection 2. If a mail ballot is received by mail not later than 5 p.m. on the third day following the election and the date of the postmark cannot be determined, the mail ballot shall be deemed to have been postmarked on or before the day of the election. That seems totally straightforward, right?

0:17:45 Thomas: Yeah.

0:17:45 Andrew: You can completely understand why that, right, like it's rain. I mean, it doesn't rain much in Nevada, but, you know, it's dust storming. And, you know, or there's a guy with a sweaty hand and, you you know, that little stamp that says postmark November 3rd, you're looking at and you're like, is that a three or a two or an eight? I don't know. Whatever. You need to have some kind of process for determining, OK, well, where's our cutoff? How are we going to how are we going to figure out if this is a valid ballot or not? And that is, OK. It's either got the right postmark or we can't tell what the postmark is, but we got it within three days of the the election,

0:17:53 Thomas: Seems Straightforward.

0:18:26 Andrew: Right? Seems straightforward. That is, I want to, I want to tell you this and I want to be perfectly clear about it. That is the only provision of this law, which is 54 pages long. This is one, one sentence that is the only provision that count one of Trump's lawsuit challenges. Any ideas why?

0:18:28 Thomas: I Honestly, no, I cannot think of what the problem with that very straightforward, reasonable provision of this law would be, I

0:18:55 Andrew: Here's the argument and and then Then I'll give you my assessment. The argument is that the Federal Elections Act requires that every state hold the election for the president on the first the next Tuesday after the first Monday in November in every fourth year succeeding every election of a president and vice president. Right. So that is November 3rd. It is possible under Section 20.2 for a ballot to be cast after Election Day, then stuck in the mail, the postmark get obscured and show up at what what. Want to I want to describe the legal basis for this first, because, look, the legal basis is not super strong, put an asterisk by it.

0:19:37 Thomas: If, what a fantastical conspiracy, wow, the Practical basis is even stupider.

0:19:51 Andrew: The practical basis. Let's let's talk about that one first is insane. OK, you have to posit a conspiracy whereby Trump wins. Trump wins Nevada. And now everybody who doesn't want Trump to win Nevada, goes out, fills out these ballots after the election, obscures the postmark and arranges for them to be delivered. Like like what even is that? Right. Like it is if you have that level of organization, just vote on Election Day.

0:20:01 Thomas: To Yeah.

0:20:23 Andrew: Right.

0:20:22 Thomas: They could just vote on the day

0:20:23 Andrew: Yeah. Yeah, you gain No advantage other than, like, OK, well, I don't have to write, like, why would I, why would I do that? Why would I vote if I'm gonna win anyway? Like, it is, it is bonkers, and and again you have to figure out some way, because Section 20-2 only applies if the postmark is obscured, right, like if you can't determine what it is and you have to hope that they not only screw up your postmark but get it there in two days or less, right, like if your mail carrier is slow, oh great, scheme, you know, thwarted by dude in a car with no wind, with no doors, yep.

0:20:25 Thomas: Yeah. Yeah yeah You can't like pre wet the envelope like, it, they have to obscure it, right, it goes through the machine, I'm guessing, right? Right. What's this is, this is so stupid people

0:21:09 Andrew: Yep, that's exactly right, it is the, it is the dumbest thing imaginable. It, it, on a practical level, on a legal basis, the argument passes the straight face test, I mean, just barely, but it, it, it comes from a case called Foster versus Love, 1997 case involving the Louisiana open primary system. Right. And that Supreme Court case basically said, look, the, the way the Louisiana open primary system works is everybody's on the ballot. And if there is not an outright winner, if nobody gets a majority of votes, then you have the runoff. And so the way in which the system was working was it was possible that the primary would determine the winner before Election Day, right, under the old system.

0:22:07 Andrew: Andso that was challenged, right by the political parties that said, No, no, no. Election Day has to be on the first Tuesday after the first Monday in November. So, Louisiana, you can't be picking your senators and representatives in October. And the Supreme Court said yes. Right. The Supreme Court says that the Federal Elections Act requires that that election be held on that day. Now, think there's a huge, and this was in about 20% of cases, right? There was no runoff. And so there was a clear winner. So I think that is manifestly distinguishable, right.

0:22:52 Andrew: I think the difference between, yeah, we regularly schedule this runoff election that is going to be before election day. Like that that clearly violates the Federal Election Act, you know, this crazy Rube Goldberg scheme of hypothetical obscured ballots coming in that then swings the like that that seems beyond speculative. But now let me say this. If I were a district court judge, I would issue a preliminary injunction only as to Section 20-2. Never minding the fact that this is incredibly thin. I would dismiss on the other. Right. The other the other counts are garbage. No court, no matter how partisan, is going to enter any relief on the other counts.

0:23:39 Andrew: If you grant the stay, you now take the power out of the hands of the appellate courts and the Supreme Court of the United States to come back and say you should have issued a stay. Right? This is the only potentially winning argument they have. And issuing a stay now has zero effect on what Trump really doesn't want to have happen. Right. What Trump doesn't wants to have happened is to have statewide vote by mail with with everybody getting the ballots.

0:24:08 Thomas: Actually just vote, yeah oh so they so they would do a stay just for the smeared, uh, postmark cases, oh yeah, fine, have at it, yeah yeah

0:24:15 Andrew: And you yeah, you would say this is this is severable. Look, this doesn't even come into play for months. Right. Like you would have plenty of opportunity. The legislature could amend it. Right, like we could promulgate new regs. We could have a case on the merits. Right like there's so many ways to resolve this. But but but if I were the judge, I would be like, yep, OK, congratulations. You got your relief. Here you go.

0:24:38 Andrew: Injunction blocking 20 dash two from going. We agree with you in your entire. You are. You have a substantial likelihood of success on the merits.

0:24:32 Thomas: Good point yeah yeah tell you what

0:24:45 Andrew: The 20 dash two.

0:24:45 Thomas: We'll send you the one ballot that this applies to and you can frame it, wow it's some strategy talk there, I liked it, you, you, I wasn't I wasn's totally sure when you were going into that, but after you broke it down, makes perfect sense, yeah And we are now joined by Randall Eliason, how you doing, Randall?

0:24:48 Andrew: Yep. Yep, And and that is it. That's that's my advice. So

0:25:08 Randall: I'm great. How are you guys?

0:25:09 Thomas: Just so happy to have you back it's been far too long it's

0:25:12 Randall: Thank you. Thrilled to be back.

0:25:13 Andrew: Let's why don't we start with issue that I think is is nearest and dearest to our hearts right now, where we have filed an amicus brief, the status of what's going on with Michael Flynn, Judge Sullivan. Um this is the craziest I mean I I'm not wrong that this is the craziest federal criminal prosecution in history right

0:25:35 Randall: Think that's probably right. I've never seen anything like it. It really has become almost a circus. It's gotten so far away from the underlying merits of what Flynn did and what sentence he deserves at this point.

0:25:47 Andrew: Yeah, let's go back to that, right? Because I, I think it was your first appearance on the show, in which, um, you know, we invited you to, uh, speculate a little bit about what, what seemed to be a, uh, a pretty fantastic sweetheart deal for, for Michael Flynn. And, and as, as befitting your calm and cautious demeanor, you, you did not take the bait of saying, "Well, this is definitely a sign that he's going to roll on somebody higher up the food chain." But, but, but I think, I think you did, I think you were at least, you know, sort of 70 or 80 percent on board with, um, from a prosecutorial standpoint, you know, taking somebody who has multiple different violations, giving them a total walk on the Forest stuff and something that, you know, wound up being a, uh, a zero to six month sentencing recommendation on the false statement stuff, um, seemed pretty good, right? Like, in your experience, that seemed like a pretty good deal.

0:26:52 Randall: Of course, it turns out now, according to William Barr, he should never have been prosecuted at all, so even I was being too harsh, right? I mean, I'm always reluctant. I mean we're looking back to the the original plea deal, but I'm always a little reluctant to second guess things like that from the outside, having been the prosecutor and seeing things that I've done in investigations sort of misrepresented in the press or misunderstood because, you know, the public doesn't have nearly all of the information that goes into making those kinds of decisions. It's all protected by grand jury secrecy. And there are a lot of things that we probably don't know. So I wasn't, you know, outraged or surprised or anything by the plea deal at the time, especially since it involved involves cooperation. And he did, you know, cooperate for some time before he sort of changed course.

0:27:34 Andrew: Before, before he stopped? Yeah, I, I wanted I want to do a quick sidebar on that. I'm really glad you said that we we made a similar point, you know, right after the favorable Supreme Court ruling in In Trump v. Vance, there was a hit piece going around, we don't need to mention it, that, you know, was second guessing Cy Vance's non-prosecution decision, you know, from eight years ago with respect to Trump. And I made a similar point, right,

0:27:35 Thomas: He got wise yeah for sure

0:27:36 Randall: Before he stopped. All right. Yeah.

0:28:07 Randall: Yeah,

0:28:07 Andrew: That that, um, I think that's right, that there is, I think it's worth emphasizing, you there are a lot of irregularities, there There are a lot of reasons to be more suspicious in this administration than in past administrations. But we do have kind of a dark veil over a lot of the evidence when it comes to prosecution and non-prosecution decisions.

0:28:07 Randall: I remember that.

0:28:26 Thomas: As the Lone lay person here, um, it gets a little, I guess, overwhelming to see stuff like what happened with the Jeffrey Epstein, you know, with that, that he could be not behind bars for so long because of what seemed like perhaps way too good of a deal. I mean, there's... there's got to be a line where it's like, okay, this, this can't be above board, right? Yeah.

0:28:49 Randall: Sure. I, it's perfectly fair to ask questions, don't get me wrong, to question what prosecutors do. And, you know, to look back on things that they've done and critique them and things like that. I'm just, I'm always try, try to be a little bit about second guessing without having all the facts right. And, um, and each case is different, but again, like in Flint, in the Flint case, at the time that deal was done, that didn't strike me as crazy or unusual or anything. I mean, it's not the crime of the century, you know, lying during an FBI interview, um, and uh.

0:29:17 Andrew: Can I take that as legal advice?

0:29:18 Randall: Yes it's Well, you know, it does happen with some frequency, um, you know, so the guidelines were not very high and the the chance to get his cooperation, and exchange at the times seemed like, like, you know, to me, a perfectly reasonable step for Mueller to take. But of course, then Flynn changed course, you know, I guess it was last summer when he hired Sidney Powell. Changed course, probably putting it mildly.

0:29:20 Thomas: It'd

0:29:41 Andrew: Be clear on that, right? Part of the cooperation on the FARA stuff was that government anticipated that he would be the star witness in the Bijan Khan case. And he wound up intervening on behalf of the defendant. Right. And his, and Sidney Powell's behavior was so bewildering that, Flynn's behavior was criticized by both the uh Bijan Kian prosecutors and Kian's lawyers, right, like which is, which is a pretty rare occurrence that you know you've

0:30:14 Randall: Yeah. Yeah. That's when things really went south, I guess, is when the government thought that he had changed up on them in anticipation of his testimony in that trial. And then everything went downhill from there.

0:30:15 Andrew: Yeah yeah yeah um so that's sort of revisiting let's let's talk about uh rule 48a motions um general, how frequently does the government file a 48A motion requesting leave of court to dismiss charges against a criminal defendant?

0:30:28 Randall: Yeah.

0:30:39 Randall: I'm trying to remember if I ever did one in 12 years. I don't recall it. I mean, I think it's pretty rare, but there can certainly be reasonable grounds to do it, right? You can certainly discover new information post-indictment leads you to decide the case should not be pursued or that there's some material you didn't know about at the time and that the charges are, in fact, not appropriate. And so you need, in the interest of justice, to drop them. And that's perfectly appropriate.

0:31:03 Andrew: Hmm.

0:31:03 Randall: In fact, we want prosecutors to have that kind of a vehicle, right? So there can be legitimate reasons for dismissing a case once it's filed. What was, I think, unprecedented with the Flynn case, at least I haven't seen any other prosecutors on Twitter or anywhere else come up with other examples. We've all, we're trying to think of one, after a guilty plea where the defendant has pleaded guilty twice and admitted under oath that he committed the offense for the government and then to come in and drop it, um, so that's what's one of the many things that's pretty remarkable about this particular Rule 48 emotion.

0:31:36 Andrew: We represented in in our amicus brief that there are zero cases in which the the government has moved under Rule 48A to dismiss all charges against a criminal defendant who has already pled guilty. There are a handful of edge cases that we talked about that appear that All of those, I think, are our Ninth Circuit cases. Never happened in D.C. and and never happened where the Government is is saying you've pled guilty. But now will hear none of it, sir.

0:31:52 Randall: Yeah and of course What made this one particularly was not just the fact that they did that, but then the grounds that they gave were so bogus. I mean, this, the, the, the out, the arguments about why he didn't really commit a thousand and one violation at all and how there was no legitimate investigative reason to interview with him. I mean, they're just nonsense. And the legal arguments contradict DOJ's consistent position in false statements cases for years in terms of materiality and what the statute requires. And so it was just such a transparent, bogus motion. So it's not just the fact that he'd already pleaded guilty, but then the grounds they supposedly gave for taking these extraordinary steps were just nonsense.

0:32:51 Andrew: The plain language of 48 says requires leave of court. Right. That that seems to be, as as we would say, you know, case closed. Right, yeah.

0:33:00 Randall: Something, right?

0:33:01 Andrew: Yeah. And and so it was bewildering to me when the D.C. Circuit on a on a two one Naomi Rao opinion mandamus relief to Michael Flynn because mandamus, you know, as as we've discussed on the show, is that's what you get when an governmental official has zero. Zero discretion. Right. And leave is defined as described. Right? I mean, it just, it just seems so completely clear to, to be inappropriate.

0:33:34 Randall: Get mandamus, your right to relief has to be clear and indisputable. That's the standard. And you have to have no alternative remedy. And Flynn fails both those prongs because the Supreme Court's never decided whether a trial judge can deny or a Rule 48A motion when both sides agree. And there are some lower court cases that suggest that the court can consider whether the dismissal, even though both sides agree, might be contrary to the public interest before granting leave of court. And that's what you've got here. And how does the judge make that determination if the judge can't even hold a hearing, right? But at the bare minimum, I mean, you've gotta say it's not clear and indisputable that Sullivan had to grant this motion. At least there's an issue there. And in in terms of no alternative remedy, his remedy is what every litigant's remedy is. You get the judge to decide and then you appeal.

0:33:34 Andrew: Right, right.

0:34:28 Andrew: So, so, so let me ask you a question that, that I can't figure out, right? Cause I, I agree a hundred percent with what you've said. I,I thought that was the stronger argument. And so, you know, now we're going to we're going to talk a little bit procedurally, right? After that opinion came out, we waited till the very last day. None of the the judges on the D.C. Circuit requested mandamus review. But then Judge Sullivan, by and through his attorney, Beth Wilkinson, arguably as a party, we could do a sidebar on that.

I'm sure like I thought I thought there was a potential standing issue pursuant to FRAP 35. That that panel opinion be reviewed by the full D.C. circuit en banc en banc relief was granted on July 30th, Unlike a grant of certiorari, which only requires four out of nine Supreme Court justices, rehearing en banc requires a majority of the court to say, yeah, we want to take another look at that one. And in my practice, you can't read the tea leaves on granting a writ of cert necessarily. But I think granting en banc is a pretty strong indication that a majority of the court says, yeah, we're not so certain about that panel opinion. So,

0:35:42 Andrew: Yeah.

0:35:42 Thomas: Be weird for them to be like we also want to agree with the decision that already do

0:35:46 Andrew: Right. First embedded question, I think it was a good sign. Let me know if you disagree. Agree, uh, second, um, that I thought was strange was that that uh the the hearing, which will will will have been yesterday by the time this airs, um, directs the parties to address the "no other adequate means to obtain the relief required" standard, which again you you and I both agree is is kind of a slam dunk in that the the other means of obtaining the relief acquired is uh let Judge Sullivan rule on the 48A motion. And if he denies it, appeal in the ordinary course.

0:36:20 Randall: Right.

0:36:20 Andrew: Right. Like that seems to be a pretty strong argument. But but I thought the clear and indisputable right to relief was was even stronger. Right, like because then you don't have to speculate on the relief awarded. You know, you don'T entertain these, you know, sort of, well, it's the equivalent. Why not just have comedy and address that? Like you would just say, yeah, you don't get mandamus if there's discretion and 48A says that there's discretion. So you don'T have an indisputable right to obtain that relief. Do you read anything into the fact that the court didn't want to hear about that prong of the argument?

0:36:55 Randall: Yeah, I'm not sure about that. I mean, I agree with you that it's a good sign that they took it. I wasn't surprised that they take it because I think that panel opinion is pretty clearly wrong for the reasons we've talked about. And I'm not surprised the D.C. Circuit doesn't want that staying on their books as precedent you know, concerning the law of mandamus, because it's just contrary to everything that mandamus is supposed to be about.

0:36:59 Andrew: Yeah, me too.

0:37:21 Randall: But in terms of what they limited the argument to, I'm not sure what to read into that. I mean, the other thing that I thought was interesting is you said they mentioned the recusal statute, and they want a

0:37:31 Andrew: I was going to tee that up as the next question. So go ahead.

0:37:33 Randall: Briefing on how the statute that requires judges to recuse themselves in certain cases, how that factors into Sullivan's petition. And I'm Not sure what to make of that either. But it sounds like they, I think Sidney Powell has argued in the past that Sullivan should be recused, whatever else happens in the case. And it may be that they're willing to consider that at this point, they think Sullivan has gotten so deeply and sort of personally involved in this that he's almost become a party effect, even if not strictly strictly speaking, that the recusal rules would require him to let another judge handle it. So may be coming too.

0:38:07 Andrew: It glad you flagged that. So, a couple of days ago, D.C. Circuit issued a supplemental order with respect to oral argument that said the party should be prepared to address that oral argument. The effect, if any, of the recusal statute, which is 28 U.S.C. 455. And in particular, they flag subsection B5.1, which is that a judge shall disqualify himself in any proceeding in which his impartiality might be questioned. Right. That's a that's the catch all. And B5 one is the degree to which he is a party to the proceeding.

0:38:45 Randall: Right.

0:38:45 Andrew: Right. Right. And

0:38:46 Randall: Pretty interesting because I'm sure you recall when he first petitioned, there were people arguing back and forth, well, Sullivan doesn't have standing to ask for en banc review because he's not a party. And then people were arguing about, well he's kind of in effect a party, even if he's now strictly a party and how the DC circuit seems to be suggesting maybe they think he has sort of become a party at this point at least to the degree where his impartiality could be questioned and it would be appropriate for him to be recused so I

0:39:13 Andrew: Is that a way of sort of insulating themselves on the procedural question of saying, yeah, we treated Judge Sullivan as a party for purposes of standing under FRAP 35 to request reconsideration, rehearing on bank. It's too late to raise the standing question. We can't put the genie back in the bottle. So the relief we might craft would be to remand the case back to the U.S. District Court for the District of Columbia, but to reassign it to another judge.

0:39:46 Randall: Guess they they could be looking for sort of cover like that, like you're suggesting, although I'm not sure why they would need to because the court can take it on bonk on its own, right? So if they look at the fact that Sullivan filed the petition and they think, well, we don't really think that's quite right, he doesn't really have the power to do that, they can just say, but we're going to take it, right? So it becomes almost a meaningless question whether Sullivan technically had the right to petition or not.

0:39:54 Andrew: Yeah. Yeah, kind of a harmless error.

0:40:09 Randall: Yeah, yeah. So I don't know why they'd really be worried about that, but it's hard to say where they're going. You know, on the no alternative remedy thing that you mentioned earlier, I mean, the one thing that was pretty interesting in the panel opinion is the fact that the harm, you know, so the panel opinions opinion's decision was basically, well, there's no alternative remedy because if this motion goes forward, the government might have to explain why it did what it did. And that would improperly interfere with, you know, prosecutorial discretion. And, and that could not, that bill could not be unwrung, right? But the two things crazy about that is, first of all, it's, it'S a little crazy to say you can never ask the government to explain its prosecutorial decisions. I mean, that happens all the time. You know, what if there were allegations that the government was only prosecuting certain minority groups or something like that.

0:40:57 Randall: And I mean, it's not unheard of to have a judge ask the government to about why it made certain prosecutorial decisions. That doesn't inherently violate some executive branch prerogative. But even more importantly, the government didn't seek mandamus, right? Only Flynn sought mandamus. And so the panel opinion opinion, took the harm to the government as the irreparable harm with no alternative remedy and let Flynn kind of piggyback on it, which is error I think that maybe the panel will point out. Even if you think the government is harmed by having to explain why it did what it did, which I don't think is a legitimate harm, but even if you Think that's the case, that's not a harm to Flynn, right? And Flynn's the only one who sought mandamus. Flynn's got an alternative remedy. Let the judge rule and then appeal.

0:41:13 Andrew: So How do you think that argument will factor into, uh, the the DC Circuit's opinion? Where do you think they're going to come out? I'm, I'm pinning you down on a prediction here.

0:41:57 Randall: Well, yeah, I think they're going to reverse it, send it back to Sullivan. Kind of looks like they might then, you know, order Sullivan to recuse himself.

0:42:05 Thomas: We Have any idea what effect that would have? Is it just a shot in the dark of what judge would take over, kind of thing? Well

0:42:05 Randall: Yeah. I think it's a random, it would be like just another random assignment. I think that panel decision was pretty clearly wrong and they're going to say, look, the judge gets to rule on this in the first instance, and then you can appeal. I, this case, it's now we're talking about process, right? We've moved away from the substance, and lawyers like to get all excited about process. But, you know, the point that it's really important to remember that, you know, just because this goes back to Sullivan, even if Sullivan keeps it, he might ultimately grant the motion.

0:42:39 Randall: In fact, I think there's a better than 50-50 chance that he would, at the end of the day, decide. Yeah you know, uh, that uh, that he would ultimately conclude, yeah, I don't really have the discretion here to deny it, but he'd only do that after a hearing and, you know, creating a record about why the government did what it did. And that alone would be a great benefit to the public, right? That's cast some sunlight on what exactly happened here.

0:42:38 Andrew: Sure oh that's a that's that's

0:42:45 Thomas: Disappointing this

0:43:05 Randall: Yeah

0:43:05 Andrew: That is exactly the position that we took in our amicus brief, which is that the court has the power to look behind the 48-a motion, that the... The court is the only party that that would then have any kind of interest in trying to detect, you know, any kind of of of of unfair manipulation or abuse of the process. And that, and that, at minimum, Judge Sullivan ought to inquire, for example, why the line prosecutor, Brandon Van Graak, withdrew from the case the day the government filed its 48-day motion. Right. And I think it's it's pretty clear from the case law that that at minimum, Judge Sullivan can say, I'd like to learn a little bit more about this.

0:43:54 Randall: I mean, I think even the panel suggested, well, there could be extreme cases where, for example, the motion was filed as a result of a a bribe, you know, where it would be inappropriate. Well, how do you find that out? You know, how do, how'd you find out if that, unless, unless you hold a hearing and have the government demonstrate why it did what it did. Right. But I saw somebody commented right after the panel ruling came out was the effect of this decision was, you Know, somebody walks up to the prosecutor in court, gives him a suitcase full of cash. Prosecutor says, okay, your honor, we moved to dismiss the case. And the judge isn't allowed to say, Hey, what's up with that suitcase?

0:44:02 Andrew: Yeah. Right. Yeah. Right.

0:44:30 Randall: I mean, I

0:44:31 Andrew: Right, right. Yeah,

0:44:31 Thomas: Sounds a lot like the arguments about the pardon power from the other week, Andrew. Doesn't it? No.

0:44:35 Andrew: It it does. And that is that is sort of a perfect segue. As you may know, we had Judge Sugarman on a week ago to discuss the Roger Stone case and the commutation of Roger Stone's sentencing. Again, because Jed had filed a petition to file an amicus brief before Judge Jackson. And I am.

0:44:58 Randall: Thought it was amicus.

0:45:00 Thomas: Great. Here it goes.

0:45:03 Andrew: All right. This is this is why you don't get invited back.

0:45:06 Thomas: No.

0:45:06 Andrew: See.

0:45:07 Thomas: That hasn't disqualified many. Get look. If we stop inviting everyone who says amicus instead of amicus, we're not gonna have any guests, Andrew. I

0:45:09 Andrew: Oh, no. That's true. Good point. So I thought the argument was really interesting and I thought sort of fitting into the larger framework of, you know, do we look behind the commutation power? So I felt it was a good discussion. You also have a very, very interesting take on the Roger Stone commutation. And why don't you articulate that?

0:45:33 Randall: Yeah. I've argued that could look at the commutation or if he ultimately gets a pardon and analyze it under federal bribery law. So back at the time, two years ago or so during Mueller, when there were these reports about floating the idea of pardons to Paul Manafort, and I think Michael Flynn, I think it was John Dowd, there were press reports that his lawyer might have talked to them about the president might pardon you. You know, there's a lot of speculation about, well, is that obstruction of justice? You know? Could that be obstruction? And there were all these counter arguments by people who say, well the president can't obstruct justice, you know, in an official capacity.

But everybody agrees the president can commit bribery. Granting a pardon in exchange for agreeing not to testify against the president or a commutation to me falls squarely within federal bribery law. And even William Barr said at his confirmation hearing that that would be a crime for a president to agree to pardon someone in exchange for a promise not to testify against him. So it's, uh, you can call it bribery of a witness, where the president is giving a thing of value, the commutation, to a witness to influence their testimony. And the argument here would be that, you know, he gave it to Stone

0:46:14 Andrew: Right.

0:46:50 Andrew: To influence the testimony to zero?

0:46:53 Randall: To and so yeah, yeah, and or or encourage him not to testify, and I forget the exact wording of the statute, but they're, you know, to absent themselves from the proceeding or refuse to provide information or influence their testimony. And, you know, Stone, you know, was pretty public about saying, I'm never going to testify against the president, you know. And Trump was pretty public about calling him a stand-up guy, and he had guts, and then he grants the commutation after Stolen repeatedly refuses to testify. And you know On its face, that looks like a suspicious case for the president bribing a witness, basically.

0:47:29 Andrew: So let's push it at the edges that in a couple of ways.

0:47:33 Andrew: First, we cite to you and we point people to your sidebars blog article from, I think, three years ago now on the Supreme Court's McDonald decision. Right. Involving former Virginia Governor Bob McDonald, who very clearly, you know, accepted, you know, fur coats for his wife and riding around in a Ferrari and and, you know, I mean, the actual suitcase full of cash, right. All sorts of stuff. And the Supreme Court 9-0 said, well, that's not bribery. Right. Aren't you the authority for the federal bribery statute is essentially toothless and impossible to prove.

0:48:12 Randall: Well, it wouldn't go quite that far, but it's certainly been narrowed. The

0:48:15 Andrew: I might have poisoned the well a little bit on that, but I am

0:48:18 Randall: Issue of McDonald's is not a problem here, because the issue in McDonald's was a very narrow statutory question of what's an official act. And so he didn't dispute that he got all those gifts, but he argued that the things he did in exchange, which were pretty minor, just sending some emails, trying to set up some meetings, things like that, did not rise to the level of a quote-unquote official act as defined in the statute, which has a very precise definition, and the court agreed with him. So that would not be an issue here because or for two reasons. First of all, even if you the bribery statute around the other way, which I think you could also do, you could say Stone is is Trump.

0:48:57 Thomas: Was actually going to ask if that if his defense could be, "Well, I've been consistent that I was never going to testify against Trump, there has never been any question of my, you know, behavior." But then when you put it the other way, that that's almost offering ahead of time a bribe to trump

0:48:59 Randall: Yeah. Yeah. Yes. And when I wrote the blog about this bribery issue a couple of years ago, there's two different scenarios. The first one I mentioned earlier is Trump bribING a witness. Bribery of witness is prohibited by the statute. Statute. But the other option is you could say the witness is bribing Trump, that the witness is providing Trump with a thing of value, which is my promise not to testify, because thing of value is construed very broadly. It doesn't have to be cash, anything of, including intangibles that are of value to the public official. And then exchanged, the official act that Trump is doing is granting the pardon or the commutation. But there is no question under McDonald that granting a commutation would qualify as an official act. That is a formal exercise of government power, unlike the things that McDonald did, which was just send an email, set up a meeting. Mean, Trump is taking a formal government decision and making it. And so even under McDonald, I don't think that's problem. Absolutely.

0:50:01 Andrew: Persuaded that it is an official act. And I think that was a great clarification. I mean, in evaluating it, in about how I would try that case, I think the The characterization of Stone bribing Trump may actually be the stronger argument, because that it's going to be easier to prove intent. Right. Like that. I mean, that it seems to me that that's the hardest part of of any of these statutes is, you know, is is meeting the intent requirement. You

0:50:37 Randall: Absolutely. I mean, the thing is this can look really smelly and a lot of stuff can look really smellly, but jumping from there to saying you can prove bribery beyond a reasonable doubt to an honest jury of 12 people in a contested trial, that's a big jump, you know, and there's a lot of stuff that looks really sleazy and slimy in politics in particular that you could never actually make a provable criminal case. And I'm not saying this would be an easy case, you'd have to develop some additional evidence, I think, to back up the fact that they really had an understanding, um, but you're right, it's Well.

0:50:47 Andrew: Well, give give me give me an example of of what you might look for as additional evidence to to to support that inference, train

0:51:15 Randall: I mean, for an ideal world, you know, you find some kind of communication, uh, you know, emails between them or or some meeting that another witness was at where they discussed it or, you know, some other evidence demonstrating that there was in fact a deal, because that's what you've got to prove beyond reasonable doubt. And so, you know, if you have just timing, you take a different kind of example, you know, XYZ gives massive contributions to a politician, and the politician goes out and votes in favor of some bill that the company wants passed. Well, it certainly looks suspicious, you know, and it certainly raises a lot of concerns about money influencing politics and things like that. But unless you've got really concrete evidence that there was a specific deal made, that's not going to be a bribe. That's like politics as usual in Washington. Yeah, exactly.

0:52:05 Andrew: The swamp. Anyway, sorry.

0:52:07 Randall: Exactly. So I think, you know, there's a pretty strong facie case, you know, of, you know, it looks like Stone and Trump are operating with the same understanding. And they were pretty blatant about being public about it with Twitter and everything else. But I don't know that you've got enough yet where you could take that to a jury. I mean, I think you'd have to try to do some additional investigation and try to find something more concrete, whether it was a phone call between them or an email exchange or a conversation someone else overheard that they could testify about. Um, Stone flips and testifies, but he'd such an incredible witness, I don't think you'd ever base a case on him.

0:52:40 Andrew: Let me parse what you just said and ask it back to you this way. You're rehired as a prosecutor and you bring this case. And I inexplicably am hired by Roger Stone to be his defense counsel. It seems to me that you're saying that I could argue, I, Roger Stone, very publicly made it be known that he was loyal to this president. He absolutely hoped that the president would reward him for this loyalty, but the state will never be able to prove, because it did not happen, that there was an explicit quid pro quo, that that there was an agreement, that there was an email, that it was a document, that there was a phone call in which the president said, "Hey, I need you to be quiet," and my client said yes.

0:53:26 Andrew: And so at the end of the day, what you have is a very loyal political follower and a president that rewarded that loyalty, but that does not rise to the crime of bribery. I can make that argument?

0:53:42 Randall: Think you could do even better um all

0:53:44 Andrew: This is why Stone is not going to hire me, so go ahead.

0:53:46 Randall: You got to do all you gotta do is raise a reasonable doubt as you know right I mean prosecutors got all you've got to doing is raise the doubt in the mind of one juror and your client gets off. So Stone's defense is, if you look back at my tweets, what I was saying all the time was I won't lie against the president. They want me to lie and, you know, make up stories against him to get him in trouble. I won't turn on him. In fact, there was nothing there. There was nothing for me to give them about the president, but they wanted me to Lie.

0:53:49 Andrew: Yeah.

0:54:16 Randall: And you know, I was not altering my testimony or or um, doing anything to benefit Trump other than telling the truth and refusing to lie when the prosecutors pressured me to. And Trump would say not that he was actually rewarding Stone, but that because this entire Muller witch hunt was so outrageous, uh, as has been, you know, and he'd point to other things that allegedly documented all the outrages by the FBI and things like that, that he thought was terrible that the prosecutors were trying to pressure Stone to make him lie, and it was appropriate for him to commute the sentence in the interest of justice. But there was never any kind of a deal for Stone not to testify against him because there was nothing to testify about. Was, yeah, it was all the Russia hoax, right?

0:54:56 Thomas: Yeah

0:54:53 Andrew: Now I'm depressed. Ah, this seems like we could add maybe amend the bribery laws to our growing list of things that the incoming administration should do in 2021.

0:55:09 Randall: Well, you know, it's interesting. There's a bill, I think it was Adam Schiff actually introduced it just um recently to amend the bribery statute to specifically say that granting a pardon or act of clemency you know would be an official act would be in exchange for you know refusing to testify or something would be unofficial act and I've argued you know that there's nothing wrong with adding that to the statute as a clarification but I think it's already covered.

0:55:31 Andrew: Yeah.

0:55:31 Randall: I think already already in there yeah

0:55:32 Thomas: You would think yeah

0:55:31 Andrew: Yeah. Think I agree with you on that. We when

0:55:34 Randall: They're also trying to make uh self self-pardons are illegal yeah

0:55:39 Thomas: Like

0:55:40 Andrew: I want to do a symposium on self-pardon, because I I think it is within the president's power. Jed certainly argued to the contrary and sounds like you have kind of a nuanced position. So so let's get you back on and we'll do we'll doing. Do self-pardoning. We will

0:55:40 Randall: Right um

0:56:02 Thomas: We'll do it or well I'll self-pardon

0:56:05 Andrew: Well, Randall, thank you so much for coming on. We've plugged Sidebar's blog and obviously you write not infrequently for the Washington Post. Anything you want folks to go take a look at?

0:56:16 Randall: Actually, there's one thing I'm kind of excited about in in a couple of months. If are you familiar with the Great Courses company? Uh you know, produce video courses of, uh, classes by different professors. So I have completed a course with them on White Collar Criminal Law Explained, and it's uh, 24 lectures, um, it's been about a two-year project, but it's going to come out in a couple of months, and, uh, if people want to look for that, I'm, I'm pretty excited about it.

0:56:21 Andrew: Oh, yeah, we Oh,

0:56:41 Randall: Thank

0:56:41 Andrew: That sounds amazing. And obviously you are an incredible legal communicator. And And when that comes out, we will have you back on specifically to refresh and remind everyone that that's out there. I can't wait. I mean, I'm going to buy that when that come out and listen to it. That's going to be awesome.

0:56:58 Thomas: Super cool yeah

0:57:01 Randall: You always

0:57:01 Thomas: Thanks so much for coming on the show we really appreciate it thanks again to Professor Randall Eliason and Andrew, I know you wanted to say a word or two about that interview.

0:57:04 Randall: A pleasure take care

0:57:12 Andrew: I think that we have staked out really kind of a unique opinion, right? So this, you will be getting this episode as the DC Circuit is conducting oral arguments. So in real time, and our prediction, you know, in advance, is that what the DC circuit is going to do is reverse, remand, back to the district court for the District of Columbia to conduct some level of oversight as to whether the court is going to grant the government's Rule 48A motion. And I think to insulate from charges of bias that they're going to either require, I'm going to say require, Let's go out on that limb. Either require or strongly suggest that Judge Sullivan recuse himself. And let me point out that this would be a great result, right?

It would be, yeah, it would be great result because case would be assigned to another judge. The facts remain the facts. And as we've argued in our amicus brief, right, all we're we're not even arguing that Judge Sullivan should not grant the motion to dismiss. What we're saying is that Judge Solomon should have a hearing, should bring in the parties, should require the government to produce line prosecutor Brandon Van Grack, who resigned the day the government filed withdrew from the case the day. The government filed its motion to dismiss. And if this is reassigned to a clean judge, right, that judge has, right, like has every reason in the world to look over at Sidney Powell and say, OK, you asked that Judge Sullivan recuse himself.

0:58:01 Thomas: Geez. Really? Hmm.

0:58:57 Andrew: He did so. You've got a fresh judge with no preconceived notion. But I don't know anything about this case, right?

0:59:03 Thomas: Yeah. Who is this Trump person you keep?

0:59:06 Andrew: Who's this individual one on, who is president of the United States. No, but it is 100% a justification, an ironclad justification that nobody can argue against that says, yeah, okay, well, but now we're going to have a hearing, right? Now I'm going to listen to the reasons why the government is moving to dismiss this case. And I'm gonna ask questions and I'm to develop a full record so that I can do what the U.S. Court of Appeals for the D.C. Circuit instructed me to do. It would be an absolute win. It Would Be Great. And lots of liberal sources would, I think, jump to sort of despair if the D.C.

0:59:08 Thomas: Yeah.

0:59:55 Andrew: Circuit orders that Judge Sullivan recuse himself. But I don't think that's the right read. I don't think it's the right read from an outcome standpoint. And I think it is a pretty decent argument that if we are basing the grant of review en banc on Judge Sullivan as a party petitioning for en banc review, well, then the disqualification will seem pretty clear, right? He is a party. Okay, you can petition, you got it. But now let's give the case to somebody else. I am OK with that.

1:00:29 Thomas: Well, I for one, I'm gonna miss him. I've written him so much. Yeah, so I'm worried that it could just be replaced with a way less good judge, but we'll see. So prediction down and

1:00:39 Andrew: It could be, but it could be it could it could be replaced with a great judge. Right. We could get Amy Berman Jackson. Right? Like, you know, there are lots of really good judges in DDC. So we'll see.

1:00:41 Thomas: We'll, we'll se how that goes. Okay. All right. Well, everybody take note of the prediction. We, uh, we like to be held accountable here. And mostly that means I could say Andrew was wrong about something. I'm never held accountable. It's easy. It'S nice job. Uh, no, just kidding. I, I, we got, you know, like the bar exam this week, we're, uh we're ride or die together, Andrew.

1:01:07 Andrew: All right.

1:01:08 Clip: And thank you, Let's go!

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"Can we get cert to appeal all of Thomas' incorrect T3B answers?" "Start a co-op," Brad in Texas, "There's a goat, why is there a goat?" Rob M., "Andrew Seidel's butt wears a mask and social distances to avoid ultra-virus exposure."

1:05:13 Thomas: Zirkle, "Podcasters' lives matter too, I'm pledging $250 a month for Patreon creators, just don't tell my wife," Odin, "Wants to defund the Paw Patrol," Roll, "I want more briefs," Polly Hernandez, "The previous patron name is true, the next patron name is false," Caveman Tampers, a Norm Now, "Really is an anagram of person, women, man, camera, TV," okay All right, Emily Rainbow. Spence, stocking up on lung injectable bleach. Gratuitous Death Escrow is my laser beam monstrosity cover band. Terry Cannon. Jason Copas, ensure your mail-in vote isn't rejected. Check for requirements such as witnesses, correct color pen, or exact signature. By the way, I in my mind I read, misread witnesses as whiteness, and I, Republicans, was like, yeah, would have that be a requirement for voting. Punching fascists is not enough, get into good trouble. Hot Spear asks if we're invading our own country now because of travel restrictions. Take donation advice from a podcast, FFRF, EFF, ACLU, Modest Needs, and our damn Patreon. Your turn, Andrew.

1:05:36 Andrew: Wow thank you to japanese caravan synchronized swim team destination portland Nate Drex, a string of unfathomable Trump quotes. Now that Big Brother has started, we can all stay in quarantine until it's all over. Okay. 13th century Saxony gravel truck lawyer. Save the USPS. They are essential for small businesses and our democracy. Yeah. Volunteer for your candidate today and take back your government. Jennifer Kratch, Jay Cheever, Leupold. Diogenes the Cynic was right. Jeff Gelbach. Back.

1:06:51 Andrew: I'm going to say the amicus shall inherit the earth, but I love the amicus shall inherit the earth. Wash your hands, then vote for Joe Biden. Stephen Balticate Sandoval. Welcome back to the full name, Stephen. CivilPoliticsRadio.com. Fridays at 7 p.m. Eastern on Valley Free Radio. John Bilderbach. Sunday was the 46th anniversary of Nixon resigning. Time for the 46rd president. Oh, I like that. Antifa assistant to the regional manager for Southern Ohio, Philip Kizer, Andrea the Arbitrary and Capricious. You'll have to speak up. I'm wearing a towel. Fantastic. Eric Halsman, Superior may be going too far, but I'd like a show comparing civil law versus common law systems. Yeah, me too. Me fail presidenting. That's impossible. If I were Susan Collins looking at main polls, I'd be very concerned.

1:07:38 Andrew: Yeah, I think so, too. I don't know if they're bluffing or what, but, you know, we talked about that on SAO. Moot would be my favorite word if it weren't so redundant.

1:07:49 Andrew: Absion, Therese Chan, pain, strumpet, trambolus, holy clown horn, my baby slept six straight hours last night. Best night of my life. The Wandering Gambler, Akitarawa, Japan. I say this at least twice a week. I say THIS AT LEAST TWICE A WEEK. Milo Meadsong stands in solidarity with the UW nurses and their union. Guy Chapman, death escrow karaoke only songs by dead artists. Oh, I didn't do that. Join your labor union. Together we bargain, alone we beg. Wait, wrong list. These are the people who signed Kanye's petition. James K., lawyer, comedian, guest, microphone, podcast. That is excellent.

1:08:29 Andrew: Ah, breath. Ah. I, Chad T., Anonymous, "Siege Megatron's overly elastic lip animations," yeah, that is true, "Hope you are all safe and well, have a good week," WordOrigins.org, "Your source for legal terms from 13th century Saxony," "Impeach Thomas's penguin," oh wow, those are fighting words, Closing Concessions, Airbud, 435 Barker of the House, "Maybe the real Conrad Michaels is the friends we made along the way," Liz Weeks, May Weasel Stronghold, "To Major Tom," "Request new varmint hammer, we're giving him hell, sir," Adam Costa, J. Aldenwald, "Okay, fine, I'll vote for Joe Biden, would you quit bothering me already? Geez," "Well, see, it works," Amicus Braille, "Braille F's," "Yeah, that's, that's right."

1:09:19 Andrew: That's that'S consistent vowel usage there. Amicus Braille F's big, easy blasphemy. The yodeler is preparing for a fiery reentry. If a lawsuit has no briefs, it is going commando. Ronda 2020 because WTF not R.A.P. Cobalt, the best pitbull ever. He stopped Stop suffering. August 3rd, 2020. Well, I'm glad he stopped suffering. We're sorry for your loss. Malika Chandler, Poot, Quackentush, Soggy Pants, Matthew Vernon, Adopt a Homeless Pet and Oppose Declangoneer Docking. Sakashite Fukasumi, donate to the Lebanese Red Cross at support LRC dot app APP. Don't take legal advice from Laserbeam Monstrosity Attorney at Law. Heather L. David in Brooklyn. Jeremiah's Fancy Microwave Emporium. Ian and Allie. Danny Kenny Rosari, Eli Bosnick, Sam Donow, Humpity Pumpity, Mitchell, No Commute, So Behind on Podcasts, You Can Tune a Piano But You Can't Tune A Fish. Great album. Good.

1:10:10 Thomas: Just still can't get over Humpity Pumpity. I can't even explain it. You would have to hear the Godawful Movies bonus thing that I did. It's just mind-blowing that that phrase exists.

1:10:22 Andrew: Sam Buck, Natasha Crunchwrap wants you to support the Justice Policy Institute. Okay, I agree with that 100%. And of course, our all-time great, he who shall never be dethroned, Conrad Michaels. Thank you all so much for supporting the show over patreon.com/law. And you know, you're the best. We love each and every one of you and we love you more than anyone else.

1:10:46 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:10:52 Thomas: And now it's time for T3BE. It's the answer. Uh, Andrew, how did we do? All

1:10:59 Andrew: All right. Well, since we've already made bold predictions in this episode, I'm going to cut right to the chase. You and I got this This one, right, Thomas, it's that seemed like the right answer to me, but but I was not 100 percent sure.

1:11:07 Thomas: Right, yeah. Maybe.

1:11:15 Andrew: So, so let's look in, in this case, I'm going to go and read directly from the answer key, which says answer D is correct. The farmer was privileged to use reasonable force to prevent or end a trespasser's intrusion upon his land. OK, that makes sense. Or to protect his property. But he was not privileged to use force that threatened serious bodily injury unless he himself was in danger of serious bodily harm. Again, makes total sense. So that's why the excessive force is the key inquiry there. It makes sense out of the 10 year old. Right. Like it, because presumably, like, you don't feel like you're in danger for your life when a 10-year-old is on your property. Property, um, it, I, I also I

1:11:59 Thomas: The farmer was eight years old. We don't know. Yeah.

1:12:02 Andrew: Think that it would have been required to tell us that in the, uh, in, in the fact pattern. Um, I also want to read the, uh, answer option C is incorrect. The farmer was not required to have posted a warning in order to have had a privilege to protect his property by the use of reasonable force, although the absence of a warning sign may become a factor in determining whether the steps he took were, in fact, reasonable, in evaluating whether his actions were reasonable as a defense of his property. The court will ask whether the force he used was excessive. So I don't, I'm not sure I understand that. Although, comma, because I am with you, like, signs that describe what your common law duty is are, like, are meaningless. Right. It uh, you know it, it's like posting a big sign that says don't break the law, stop breaking the law, asshole.

1:12:48 Thomas: Oh thank God Yeah. Like do I have to put a sticky note on all my possessions that says don't steal me is that. Well, There's no sticky note on his watch, your honor, so damn, you're right. I, right. Well, we're victorious, uh, and not only that, you got a bunch of stooges to guess other answers by telling them that was kind of a dirty trick, but you know, I like it. Hop in your time machine and, and maybe there will be a nice answer to read that will either be the wrong one or somehow be funny or something.

1:12:58 Andrew: Right I did. No Yeah, we did. Great. So oh, well I I I

1:14:09 Thomas: Thanks so much for listening. Thanks again to Professor Randall Eliason for coming on. I'm really excited about his class coming up, his great courses coming up. That's going to be amazing. I'm sure we'll have him back on to talk about it. And we will see you all on Friday.

1:14:18 Andrew: Yeah, yeah. Until then.

1:14:24 Clip: He's not even a lawyer and he's kicking your ass.

1:14:57 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.