OA422: Road to Sedition aka Bill Barr, Evil POS

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 422. I'm Thomas Smith. That's Andrew Torrez. How you doing, sir?

0:01:25 Andrew: I am fantastic, Thomas. How are you?

0:01:27 Thomas: You know, I'm glad you're fantastic. We all need that. But I'm looking at the agenda for today here on the spreadsheet that you call the whiteboard.

0:01:36 Andrew: I mean, we live in a dystopian hellscape, but you know, yeah,

0:01:36 Thomas: Oh. My god. Yeah. I was just gonna say, like, this is, if, if going into, like, you know, October 2016, someone had been like, "Oh, this will be the podcast agenda when Trump is president," I'd be like, okay, that's a little much, like, I'm not sure it's, we got sedition, we got forced hysterectomies, a little, um, that we can't do, don't have time for the eugenics deep dive, everybody, but we'll, uh, we'll kind of preview that one. Bill Barr saying charging protesters with sedition and, like, subversion. I mean, this is just, we. So yeah, let's, let's get into the hellscape. Shall we, Andrew? Let's. Into it before We get to our main segment, uh, we did want to, I guess, sort of preview the, and eugenics and just awful, this is, ah, all right, tell us, um, give us the preview there, the upcoming deep dive.

0:02:17 Andrew: Um this story is incredibly disturbing and as I started to vet it I right so here is the report. The story is that ICE is engaging in forced hysterectomies, that is, sterilizing women who have been detained at the border. Now, I saw that break in the news and I thought, OK, you know, even for as bad as Trump is and everything else that, yeah, I thought It was going to be, I sort of pegged it for an A segment of, OK, OK, like, there's bad stuff and there's terrible conditions. That's not the case. There is a 27 page complaint filed by Project South, the Institution for the Elimination of Poverty and Genocide. It is, these are real lawyers from a real organization. The allegations are serious and disturbing and it needs a deep dive and a, and a full analysis, which we will do. It, that was filed a couple of days ago, this Monday, September 14th, and I promise you that we will break it down. So far, ICE has issued blanket denials, but, like, not super encouraging blanket denials.

0:03:00 Thomas: I would really like this to not be real, that would be nice. If it wasn't fake news. Yeah.

0:03:56 Andrew: And the allegations, like I said, are incredibly specific and

0:04:02 Thomas: Is this like a whistle, was this a whistleblower situation? Okay.

0:04:03 Andrew: It Is, yeah, there is a whistleblower nurse, her name is Dawn Wooten, and she was employed at one of the detention centers in Georgia, which of course is operated by a private prison company. And this, so she is now cooperating with outside counsel. And And the allegations that she makes are terrifying and disturbing, right? That the center uses an outside gynecologist and that everybody, or almost everybody he sees, here, let me quote Wooten from the complaint, quote, everybody he sees has a hysterectomy, just about everybody, everybody's uterus cannot be that bad.

0:04:54 Andrew: We've questioned among ourselves, like, goodness, he's taking everybody's stuff out, that's his specialty, he's the uterus collector, I know that's ugly, is he collecting these things or something, everybody he sees, he's taken all their uteruses out, or he's taken their tubes out, what in the world? Is literally everything I just said is a direct quote from the Complaint, and, um, yeah, so it is, like I said, the allegations are, are terrible and disturbing, and I, I promise you, we will go over them in detail, it just, it needs more than an A segment. Yeah.

0:05:13 Thomas: Oh. Yeah.

0:05:28 Thomas: Yeah, definitely, for sure, um, also good on this whistleblower, thank you for, uh, not, uh, waiting and making this your upcoming book that you're gonna sell In six months, I appreciate you, you know, being a good whistleblowner, we, we need, we need more brave people like this nurse, um, wow, wow. Okay. Well, that's, that doesn't get much worse. We have to do a show and all that, but wow, this is hard. I don't, there's no, I'm not going to joke. There's no spin. Let's just move on, I guess.

0:05:37 Andrew: Yeah.

0:06:01 Thomas: Okay, so we're on to the E. Jean Carroll topic. This is, and Andrew was right, and Andrew was wrong, update us.

0:06:09 Andrew: But really this is just doing a further dive into that story, because I am happy with the analysis we did on the story last week, and I've now had a chance, thanks to the crowdsourcing we did, to follow up on some of the threads that are out there, a, right, couple of questions that we left in the air. The first was our position that we took that said, you know, now, the subject matter argument is probably correct, right, that the President answering questions from reporters and denying that he had ever raped a woman is probably within the scope of his duties. The subject matter of answering reporters' questions about non-governmental conduct, i.e., did you rape this woman in a department store, probably are going to be considered within the scope of his authority. And an anonymous listener pointed me to the case of Kerr versus Ballinger, which is a case from the U.S. Court of Appeals for the D.C. Circuit. And it involved a North Carolina representative named Cass Ballinger. And the local newspaper, the Charlotte Observer, was doing it.

0:06:42 Thomas: Right. Appreciate

0:07:34 Andrew: Right. And so then the journalist got a letter, and the reader said, hey, you did this puff piece on Camp Ballinger, why didn't you point out that he's separated from his wife? Right. And the reporter, Tim Funk, said, OK, all right, I'll go, I'll come check it out. So then he called Ballinger's office and said, hey, I just want to follow up on our piece, got a, you know, tough follow up question to ask you. And in that follow up, Ballinger said the following.

He said, I wanted to reach out to clarify some and give some answers with respect to the question of whether I am separated from my wife, I am, uh, it was like, this was like a 15 minute call according to the lawsuit, um, and he said, look, my wife is really unhappy that My apartment in Washington, D.C., right, because, you know, you maintain your own residence back in North Carolina, and then you say, oh, I'm gonna keep, you know, an apartment in Washington, C., to, to live down there. His His apartment was across the street from the headquarters of CAIR, C-A-I-R, the Council on American Islamic Relations. Now, Council on

0:08:53 Andrew: African Islamic Relations is, yeah, well, here's what it has to do. We're getting there, I promise, right? So CAIR is a nonprofit, and their goal is to promote positive images of Islam in the United States.

0:08:53 Thomas: Is that what does that have to do with any of this story? Okay. Okay. Yeah. I'm just gonna Yeah.

0:09:11 Thomas: Oh.

0:09:12 Andrew: I totally, you know, nor you might agree or disagree with some of the stuff they have to say. Ballinger said CAIR is, quote, the fundraising arm for Hezbollah. That's not true. Obviously, Hezbollah is a foreign terrorist organization. It has been so designated by the U.S. Department of State. And Kerr sued Ballinger, and rightly so, for defaming them, for calling them the fundraising arm of Hezbollah. So the lawsuit was about whether Ballinger's statement regarding Kerr fell under the protections. Yeah, exactly, exactly.

0:09:24 Thomas: God, yeah.

0:09:54 Thomas: I guess. I missed, so what was the connection between the separation in the marriage, like

0:09:54 Andrew: Um, yeah. He said, I separated from my wife because she was unhappy with the fact that my, hat, my apartment in Washington, D.C. is across the street from the headquarters for Care. Yeah, exactly. I know.

0:09:59 Thomas: Yeah.

0:10:12 Thomas: That that sounds plausible.

0:10:14 Andrew: Yeah. Like I

0:10:15 Thomas: That's that's what I would say too. Well, she just is so anti-Islam or something, she's such an Islamophobe that, uh, that's that's why I had nothing to do with likely all the affairs he was having or something. Okay.

0:10:22 Andrew: I like Yeah. I, I it, again, we

0:10:31 Thomas: I don't want to defame him, that's a joke.

0:10:31 Andrew: Should we should mention Yeah. Yeah.

0:10:32 Thomas: Just kidding. Oh.

0:10:34 Andrew: But but yeah, like it, the idea that being separated from his wife would be a terrible, you know, would be a story that has to be corrected. But, you Know, being being a racist idiot would not be a story that needs to be

0:10:51 Thomas: Yeah, well that part I find believable, it's his story about what happened. So, okay, so is, uh, this awful, uh, racism and defamatory speech part of his political, uh, job, I guess, is that the legal question they

0:10:52 Andrew: Correct. Yep. Yep, right. And so the question is, right, this is the Westfall Act that we discussed last week. And so the question is, is saying racist stuff about Kerr part of his job? And the D.C. Circuit said, yes, yes it is. Because Kerr said, look.

0:11:17 Thomas: Said sorry you're a Republican. Yeah, okay, yeah, it's part of your job in

0:11:22 Andrew: And Kerr made the argument under exactly the same standards that I predicted they would make the argument under. So I feel good, good about this, that Ballinger's statement was, quote, not actuated even in part to serve the master, end of quote, right? So they used, if you recall, that's the same restatement provision that I said. Do you know, this is probably what we're going to talk about, being in the scope of your employment. We're going have to look at, you know, is it intended to serve the master, which in the case of an elected official means serve the voting public? And And the D.C. Circuit said yes. Right. Ballinger followed up with the journalist to, quote, diffuse an issues that could effect his representational abilities to his district and or inhibit his long term ability to continue advancing his legislative agenda in Congress.

0:12:16 Andrew: We agree with the district court that this conduct was motivated by a legitimate desire to discharge his duty as a congressman, as a member of Congress. And then the court analytically says a member's ability to do his job as a legislator effectively is tied, as in this case, to the member's relationship with the public and in particular his constituents and colleagues in Congress. So I think that makes it abundantly clear that on subject matter grounds, right, the president hostile questions from a journalist about having raped a woman in a and I don't want to get too much into the details, obviously, you know, we talked about that last week and it probably is within the scope of his employment. So then the question becomes, were we right on the waiver stuff?

0:13:04 Andrew: And here, this is where there is, again, spoiler alert, I think we're 100% correct on the waver grounds. I'm going to explain that in a minute. I said the default rule. I know I didn't know of a reason why the default rule on removal would not apply. There is a reason why the default rule on removal would not apply. And a couple.

0:13:30 Thomas: Are we we're talking about the timing issue now right, okay, and this was where where you had said, seems like the judge is going to say, no way, way too late for this. You're, you're, you're kind of double dipping sort of thing. Like you, you tried it once and now you're going to try to remove it to federal court. And you're saying, you said originally you didn't think that would fly.

0:13:32 Andrew: The timing issue. Yes, exactly. And yep. Yes. Yeah, that there was a that there's a clear 30-day deadline in the removal Statute. Statute, um, the statute is a presumptive 30-day deadline. And I described my experiences with that deadline and that the courts are very, very strict about that. Well, I'm not surprised that subsection D2 of the law, again, as I pointed out, there are not a lot of cases that analyze this, says any civil action shall be removed without bond at any time before trial by the attorney general to the district court of the U.S. states for the district and division, embracing the place and the action which the proceeding is pending. So the question is, does that supersede, right? Does that general, you can remove this at any time, supersede the more specific requirements of the removal statute generally?

0:13:52 Thomas: Uh huh.

0:14:43 Andrew: And after looking at the case law, I'm convinced that it does, but I'm convinced that it does for a particular reason, right? And that particular reason is this entire act, the Westfall Act, is triggered by the Attorney General looking at a case, Right. You send the case to the attorney general and the attorney general looks at it and goes, oh, yeah. Right. You're a federal employee, particularly if you're a low level federal employee. And we think this is definitely the kind of lawsuit that Congress intended to immunize in the Westfall Act. And you could imagine, you know, with a busy attorney general who's not who's not busy spending all his days thinking about how to jail protesters. Spoiler for the next segment. Right, that that that could take, right?

0:15:31 Andrew: You wouldn't want to, you wouldn't want to say you've waived your right because the attorney general took too long to review this case, right, if you were a low-level government employee. So all of the cases that I have found that have allowed the timeliness to extend beyond 30 days are still governed. So that's the part we asked, I flagged, I said, seems like there's a hard 30-day cap. App, anonymous listeners pointed me to this provision, 28 U.S.C. 2679 D.2, and I went, researched, found that the application of that does indeed supersede the more general application of the 30-day timeline. But in literally all of the cases that I saw, which again, only four or five, but there aren't a lot of cases on this, they all involved cases in which the action was was removed.

0:16:27 Andrew: You example, the one that I'm about to discuss, the the Roskin versus Morgan Stanley case, that the case was filed in November and then removed in February. Right. And presumably the attorney general was probably busy in the months, you know, in the month of December, right over the holidays. So all of it are examples where remember, the Westfall Act doesn't just protect the president. It protects low-level executive branch employees, right? It's designed to ensure that when you're actually doing your job, you don't wind up getting sued for that. And you wouldn't want them to lose their right just because the attorney general took a long Christmas break. So that makes total sense. But the larger question of, notwithstanding the clear, okay, you had 30 days, all right, maybe you get two months.

0:17:18 Andrew: Maybe you get a reasonable period of time, which could include at any time before trial, right? But the question is, can you waive as a private litigant your right under the Westfall Act to have the government step in and take over the case? And that, I still think, is a very clear and unambiguous yes, right. And the way in which that happens is what we said last week, right, which is when you act in a way that that is inconsistent with your right to insist that this case be litigated in federal court, you can waive your right-to-remove-the-case to federal court.

0:18:03 Andrew: And the key case on this is a case called Fain v. Biltmore Securities, 166 FRD 39. Unfortunately, there's no publicly available version of the case, but it's 1996 decision from the Middle District of Alabama. And it is the clearest articulation of the principles, which is, OK, if there's some kind of activity on the docket at the state court level, is that inconsistent with your right to litigate? Right. Because in that case, what happened was a party was sued and they first filed a motion to stay the case pending arbitration and then they removed the case to federal district court and in federal district district court, the plaintiffs argued the same thing that I said E.

0:18:55 Andrew: Jean Carroll is going to argue here. Like, hey, wait a minute. You asked this court to stay pending arbitration. You can't then turn around and ask a federal court to do the same thing. And as it turns out, the Fain case, the court said, no, this is okay, right? Filing a motion to stay, pending arbitation, was not inconsistent with the right to litigate in federal court because they did that just sort of as a matter of course, without investigating the jurisdictional issues, and they didn't get a ruling from the state court. And so here's how the federal court analyzed the issue. They said, when you litigated in state court and then removed to federal court, Is that removal, removal designed to preserve the status quo, that is to protect your existing rights, or are you litigating on the merits? Do you have something you didn't like about what the state court did and now you want another bite at the apple in federal court? That's the test. It is, did you manifest an intent to litigate in state court?

And the Fane case was distinguishing an earlier case that kicked back to state court, said this is an improper removal because you already litigated a whole bunch of stuff in state court. And I will tell you, having being very, very familiar with those cases more generally, I think, like I said, there are 117 docket entries, including a year and a half back back and forth litigating a motion to stay pending the summer Zervos outcome,

0:20:34 Andrew: Which, unlike kind of the technical motion that was at issue in the Fain case, was deeply tied into the facts of the case, had numerous supporting exhibits on both sides. And most damningly, the Trump administration waited until they lost in state court and then came up with this theory and then removed. So, I stand by everything I said in in the episode, um, the the the, at the hard 30 days, right, is going to be superseded by that subsection D2. So, and I, and I flagged that, I said, you know, it's possible that there's a reason to supersede. That turns out there is, uh, but I, you know, I, I was wrong in saying that it's a hard 30 days.

0:20:55 Thomas: Yeah. Well. Good. Sure.

0:21:17 Andrew: I, I own up to that, um I

0:21:16 Thomas: Sure. But you think the judge could still say no because of it's unreasonable what we're doing here

0:21:22 Andrew: Go ahead. Yeah, I think absolutely that is what will happen. So procedurally, now, this is not, I'm not just trying to rehab my image on the 30-day thing.

0:21:26 Thomas: Nice. Oh.

0:21:35 Andrew: Procedurally, there is another 30-day window, and that is the statute that governs what happens next is 28 U.S.C. Section 1447. Again, I know this as somebody who sometimes moves to remand cases back down to state court. And subsection C says a motion to reman the case on the basis of any defect other than the lack of subject matter jurisdiction must be made within 30 days after the filing of notice removal. So, E. Jean Carroll and her lawyers, who are exceptional lawyers, they're on top of this. I've actually tweeted at them. They haven't responded yet, but, you know, we'll see. They know they've got 30 days to object to this notice of removal and their waiver claim is super duper strong here.

0:22:23 Andrew: And I would be shocked and delightfully. Right. You didn't ask this question. You might have. I'm anticipating heading it off. Subsection D says an order remanding a state, remanding the case to the state court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding these pursuant to sections that aren't appropriate here shall be reviewable by appeal. So,

0:22:42 Thomas: Does I mean, does that cut both ways though? If we get the wrong outcome here, it's like we don't have any recourse. Oh.

0:22:55 Andrew: No, it only cuts again. Right. It says an order remanding the case from which it was removed. So if this federal judge who has already stricken USA from the caption and seems super skeptical of this case, if this judge says, yeah. Yeah, that remand, that removal. And remember, you remove from federal, from state court to federal court. You remand from federal court back to state court. Remand is going back. Removal is what you do as the litigant. So if the judge says that removal was improper and remands it back to the state court, there is nothing Trump can do at that point. I mean, he can try and file for, petition for mandamus or whatever. But you don't get more clear than

0:23:01 Thomas: I See. Okay. Okay. Cool. Cool.

0:23:24 Thomas: Right. Yeah.

0:23:43 Andrew: X is not reviewable on appeal or otherwise. Total eclair, exactly. So

0:23:46 Thomas: Total eclair. So a quick question. I know we likely have to get to other things, but just to clarify, if, you know, let's say worst case scenario, somehow you're wrong on this. Does that that doesn't mean that Trump just gets off free, right? Right. It's just that the the government handles his defense. Or is it really true that like if if this is determined that it's part of his job, then he's just can do whatever.

0:24:16 Andrew: It is the latter to that, right? If the Westfall Act applies, then Trump was acting in an official capacity when he allegedly defamed E. Jean Carroll. And then the party defending that is now the United States of America. And E. Jean Carroll's remedies run to the United states of America and not to Donald Trump personally. So I it, it, but, but let's be clear on that on a, on a couple of things. Yes.

0:24:17 Thomas: Oh, geez.

0:24:40 Thomas: So like, does that mean taxpayers could potentially be paying her a settlement or something?

0:24:43 Andrew: Yes. Correct. And as you point out, that is exactly what would happen. The Westfall Act empowers the attorney general to settle these cases and the case would settle that the you and I, the taxpayers would pay a ton of money to E. Jean Carroll to her claims for defamation because there's no way you would litigate it. Right.

0:24:46 Thomas: Huh? Yeah.

0:25:08 Andrew: And, you know, you might want to ask Uncle Frank how he feels about tax debt. Like, OK, maybe he's fine with Donald Trump paying $130,000 to silence Stormy Daniels. Is he fine with himself paying to silence Eugene Carroll? Because that's what's going to happen. So, yeah. So literally everything hinges on the question of whether the court remands or not. Like I said, I still think the argument is exceptionally good on waiver. And and there are there is case law that says you can waive your right to remove to federal court. I cited it. It's the exact standard that we discussed last week. So there you go.

0:25:32 Thomas: OK.

0:25:53 Thomas: All right. Well, here's hoping for a good court thingy because that's that's some BS. Yes. That, you know, I'm going to go ahead and say that was our slightly good news for the day, at least slightly optimistic story. Now we we get to the not that uh which is what in the world Bill Barr is just an unhinged uh Fox News I guess Kool-Aid drinker or whatever because it seems as though he went on some rant about charging protesters with sedition. Okay, give us the breakdown, Andrew. What's happening? Do we need to be worried about this? Is there any realistic chance of this happening? All those questions and more. Yeah.

0:25:58 Andrew: Yeah. Yes. Um, Ultimately we're going to do an OA style deep dive here, uh, and there's going to be a lot of terrifying stuff along the way. Ultimately, I think we get to a happy ending, but, uh, but I want to flag some real landmines. And And I want to start with, first, yes, Bill Barr said this. And it is absolutely terrible. I'm going to link the Wall Street Journal story in the show notes. It is absolutely terrifying that William Barr has said federal prosecutors should be looking to charge protesters. Keep in mind, he said two things, right? Right. He said, I want you to bypass charges of vandalism or curfew violation and go straightforward, attempting to overthrow the government, which is the charge of sedition, potentially also the charge of subversion. I'm going to talk about the history of those two laws in this country in the 20th century forward. Right. Like, I'm not going to go. There's not a hardcore history, man. I'm not going go all the way back to like the alien and sedition acts. And it.

0:27:46 Thomas: You better be glad it's not Hardcore History otherwise we'd put out a five-hour episode once every nine months or so

0:27:56 Andrew: Yeah. Yeah. Instead, what we do is we put out five hours of content pretty much every week. But, you know. OK, so first, Barr said this. And even though his prosecutors are going to tell him to go clown horn himself for for the reasons that I described, and nobody is ever going to get charged, and certainly no one will ever be convicted, saying things as an official government policy has a chilling effect, right? This is one of the most well-established First Amendment doctrines in our nation's history, right? When the government says they're going to come after you, it is very little comfort to somebody to say, well, you know, if they do and you fight them in court, like, you're probably Probably going to win. Like people will just say, I'm super not interested in fighting this in court. Right. You know.

0:27:59 Thomas: Yeah. Yeah.

0:28:50 Thomas: Going Against the U.S. government where the stakes are pretty high. Yeah.

0:28:56 Andrew: Yeah, exactly. Right? So that's the first point. He said it. Now, let's look at those two charges. First, subversion and subversion is recognized as a crime in many European nations. In the United States, it is engaging in subversive activities and the history of modern charges.

0:29:21 Thomas: Well, I was just gonna say, I mean, I'm sure we can look back if we're looking at history, we can look back to the Tea Party movement in uh early Obama years because I'm sure we would have done the same thing to the white protesters that we do. So is there a case law history of this back then?

0:29:21 Andrew: Yeah.

0:29:38 Andrew: Shockingly, no.

0:29:39 Thomas: No? Oh, wow. What is the difference, I wonder?

0:29:41 Andrew: So. So, Yeah, difference is this is something in our nation's history that has always. And, and again, you and I are, you know, left of center. I want to be 100 percent clear about this. The history of efforts to criminalize subversive activities in the past century in this country have exclusively been directed at left wing voices and have never been directed did at right-wing voices. And you are correct to point out that as actual right-wing terrorists commit actual crimes against the government, when Barack Obama instructed the FBI to take a look at, you know, actual terrorists committing actual crimes, that was considered a scandal by Fox News and has been ignored and encouraged by the current administration. So we're going to start off with Harry Bridges, um, Racehorse Harry, as he was, I love, I love like old-timey nicknames.

0:30:13 Thomas: Huh. Yeah.

0:30:46 Thomas: I know. I hope there's no, like, racist connotation behind it, though. Is it just...

0:30:46 Andrew: Um, was a no. He liked, he was, he was an Australian guy and he liked going to the track, and there were lots of labor unions.

0:30:51 Thomas: Okay. Ah. Oh, man.

0:30:57 Andrew: Uh, there were lots of labor union leaders named Harry at the time.

0:31:00 Thomas: Just reminds me, is it the Simpsons boxing episode where everyone's named Boxcar, like every opponent? Opening Argument is brought you by better help. Folks, is there something interfering with your happiness or is preventing you from achieving your goals? I just can't even ask that with a straight face. Uh, things are rough lately and it's, there's no sense in hiding the fact that things are ruff and that a lot of people are not doing well. But here's the thing, BetterHelp will assess your needs and match you with your own licensed professional therapist. I cannot recommend this enough. You can start communicating in under 48 hours. Now, this is not a crisis line. It's not self-help. It is professional counseling done securely online. There is a broad range of expertise available, which may not be locally available in many areas. The service is available for clients worldwide.

0:31:01 Andrew: Yes. Exactly, yeah, where

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0:33:17 Andrew: Yeah, yeah, so there were lots of guys named Harry. So, and this guy was, you know, he was sometimes called Limey Harry because Americans in the 1930s and 1940s couldn't differentiate between British and Australians, but the non-racist nickname he got was was Racehorse Harry, because he liked going to the racetrack. He was an Australian born immigrant. He was ultimately naturalized in 1945. And he is a hero. He was he led massive strikes in the 1930s, 1940s. He's also a member of the Communist Party and spent his entire active adult life in the United States agitating for workers rights and right wingers wanted to deport him. And so in 1940, they passed a law called the Smith Act, which was also called the Alien Registration Act of 1940. I will point out, A, that is before World War II, and B, that this was signed into law by, you know, liberal U.S. President Franklin Delano Roosevelt. It was then codified at 8 U.S.C. 10 and it criminalized subversive activities with fines or imprisonment for up to 20 years, denial of federal employment for five years and deportation for immigrants.

0:33:36 Thomas: Right, huh.

0:33:46 Thomas: Moved

0:34:40 Andrew: Right. So the idea was that you would get, Bridges would violate this law, you'd arrest him and then you would deport him, get him out of the United States, away from causing trouble. And it says, in relevant part, it shall be unlawful for any person to knowingly or willfully advocate, abet, advise desirability, or propriety of overthrowing or destroying any government of the United States by force or violence or by the assassination of any officer of such government.

Right, there's other stuff, you might be thinking, all right, so I, I get it, that's kind of, you know, 1940 law, um, you know, what, wasn't it repealed, um, it was moved to a different, yeah, it was repealed because it was removed to a section of of the United States court. It is still on the books today as 18 USC section 2385, with the same language. So you might be thinking, criminalizing advocating, advocating overthrowing the U.S. government, that seems like that would violate the First Amendment, like I'll say right here on the air, like I don't believe this. I'm a fan of democracy. But like suppose I were to say on the Air, like, I've said it before and I'll say it again. Democracy just doesn't work. We need

0:35:32 Thomas: Wait, Would think so, yeah. Yeah.

0:36:03 Thomas: Sure.

0:36:03 Andrew: To abolish democratic elections in this country and replace it with a philosopher king selected from a tripartite panel consisting of you. You.

0:36:11 Thomas: Selecting from Uh, selected from any of the people in the philosophers in space Facebook group, I think.

0:36:15 Andrew: I was going to say you, me and Aaron Rabinowitz, we get to whoever gets the vote of two or more becomes our hereditary philosopher king. I.

0:36:17 Thomas: Yeah. Well, shoot. I think you're going to the, uh, you're gonna to the prison for life here, man.

0:36:25 Andrew: Yeah. I and I have now advocated. Right. So this violates the plain text of 18 U.S.C. Section 2385. I have knowingly and willfully advocated overthrowing and destroying the United States government. It. Why am I so confident that I can do that? First, let me tell you why I'm not confident. Okay. I'm Not Confident for two reasons.

0:36:49 Thomas: Oh, okay. Am I cutting that last part?

0:36:53 Andrew: No, no, you're going to leave it on.

0:36:57 Andrew: One, I'm going to give the link in the show notes. You can go to 18 USC 2385 and the law is still on the books, right? And two, there was a 1950 Supreme Court decision that said that law law did not violate the First Amendment. And this is a callback to, I think it's OA episode number six, in which I said, please do not. And so I know we've had a lot of new listeners, maybe haven't listened to OA number six. Please do not use the phrase clear in present danger. Please do not us the illustration of you can't shout fire in a crowded movie theater. Those come from a case called Schenck v. U.S. which is about the suppression of socialist literature and this case, Dennis v. US, is squarely in line with the Schenick line of past precedents, which although they have not been overruled, they have been had their validity quote cast strong doubt upon, right? Right. They get a red flag in Westlaw and Lexis anyway. Yeah, exactly. Because nobody would cite these cases in a brief today as being good law.

0:37:29 Thomas: Right. Right. Yeah, in Lexus. Oh yeah. Except Bill

0:38:07 Andrew: So, yeah, except maybe Bill Barr. So what happened in the Dennis case? I'll go I'll get super quickly. This is a fun story.

0:38:07 Thomas: Barr. Yeah well, I wanted to,

0:38:15 Andrew: Well, yeah.

0:38:15 Thomas: So I wanted, to interject there. Like one of, one of of the things that really opened my eyes uh from from doing this show with you was just I've said before but how many of our, what we think of as these are our constitutional rights, like our right of free speech, our right to an attorney if we're arrested, or you know, all that kind of stuff, really are like, originate yesterday in historical terms. I mean, like to to be an originalist, and then I, because I was just um thinking as you were saying this, if I remember right, Eugene Debs was was imprisoned for like just being a socialist. So this idea that like we, this country has always had this first amendment right where so much freedom. No, that's like yesterday that we decided to actually, you know, give a certain amount of rights and freedoms to people.

0:38:51 Andrew: Yeah.

0:39:03 Andrew: Let me let me affirm 100 percent of what you've said. Right. Right. I'm about to read you a horrifying decision from 1951. That is the Dennis V. U.S. case. And it was not effectively overruled until a case called Brandenburg versus Ohio from 1969. By the way, from the height of the Warren court that people like Bill Barr and five ninths of our current Supreme Court dismiss as crazy left wing activist Supreme Court. Right. So in other words, the rights you enjoy today are 100 percent due to having a liberal Supreme Court.

0:39:29 Thomas: Yeah. Yeah.

0:39:44 Andrew: And if you think the right has forgotten that you haven't been listening to opening arguments. So, yeah, let's go back to the Dennis case, because this will make you mad. Had.

0:39:52 Thomas: Oh good. I need to be mad. I don't have enough currently making me mad.

0:39:54 Andrew: Case, yeah, the Dennis case was about rounding up and arresting the officers of the Communist Party USA, right? A total, right, a political organization existing within this country. So 11 people, including their, they were modeled after the Soviet Union, so their their their president was called the general secretary. Look, like I'm not a communist, but like I think you should be allowed to be a communist in this country, including one of the 11 people who was arrested was a bona fide war hero, Robert G. Thompson. You could look him up on Wikipedia. I'll give a link in the show notes.

But like, seriously, he received the Distinguished Service Cross during World War Two. He is a war hero. There was no specific allegation that they were, you know, plotting. It right, right, I mean, they, they didn't, there's the Communist Party USA, they were talking about like, well, first we're to have a leaf lettering campaign and then we're gonna send, you know, what will eventually be known as sternly worded crunch wraps, like these were not, you, this is the 1940s, right, they, they, it was just political speech and they were arrested for being communists. They were sentenced to five years in jail. Thompson, by the way, was only sentenced to three years in jail in light of his heroism in saving the world from the Nazis. The lawyers representing the defendants were cited for contempt of court and given prison sentences. I

0:40:04 Thomas: Yeah. Wow. Yeah.

0:41:33 Andrew: Was unable to determine the lawyers repeatedly were cited for contempt of court for engaging in the same advocacy because they were all, you know, left-wing lawyers sympathetic to the causes. Um, I was unable to determine whether they ever served those sentences. Um, everybody was convicted. It went up to the Supreme Court, and the Supreme Court, I am happy to tell you, said, uh, that if this were a case where those, those who claimed protection under the First Amendment, were teaching the techniques of sabotage, the assassination of the president, the filching of documents from public files, the planting of bombs, the art of street warfare, and the like, I would have no doubts that it's criminal activity. The freedom of speech is not absolute. The teaching of methods of terror and other seditious conduct should be beyond the pale.

0:41:33 Thomas: The lawyers.

0:42:20 Andrew: This case is argued as if those were the facts. The argument imported much seditious contact into the record that is easy and has popular appeal, heel. For the activities of communists in plotting and scheming against the free world are common knowledge. But the fact is that no such evidence was introduced at trial. There is a statute that makes seditious conspiracy unlawful. Petitioners, however, were not charged with a conspiracy to overthrow the government. They were charged with the conspiracy to form a party and groups and assemblies of people who teach and advocate the overthrow of our government by force or violence and with a conspiracy to advocate and teach its overthrow by force and violence. It may well be that indoctrination and the techniques of terror to destroy the government would be indictable under either statute, but the teaching which is condemned here is of a different character. So great, right?

0:43:09 Thomas: Maybe.

0:43:09 Andrew: Except that I'm reading from the dissent. Case went 6-2 the other way. That was Harry O. Douglas saying, what are you talking about? Yeah, it you want to criminalize people who plan out terrorist attacks in the United States. Go for it. But they're just teaching communism like you can't do that. And and that's I'd lost. And that remained the law for 18 years until Brandenburg versus Ohio, which, by the way, Brandenberg was KKK leader.

0:43:11 Thomas: Oh, my God. Wow. Yeah.

0:43:44 Andrew: And he a march that we want to send African-Americans back to Africa. That was not the word he used. And the Jews back to Israel, quote, we're not a revengeant organization. I love making up a word there. But if our president, our Congress, our Supreme Court continues to suppress the white Caucasian race, it's possible there might have to be some revengeance taken.

0:43:44 Thomas: Yeah.

0:44:15 Thomas: And then the court was like, wait, these people need freedom. So It takes the KKK. So if it's lefty, you know, communist types, you're going to jail for even teaching this. But then when the KKK, the KKK wants to spout, you know, their garbage, uh, you know, "What? We have a First Amendment. Never mind, let's give these people rights." It's, uh, fascinating how that works to me.

0:44:18 Andrew: Yeah. And that that well, Yep, So, holding of the court: "We are confronted here with the statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and 14th Amendment." So is Brandenburg versus Ohio. Thank, thanks the KKK for, uh, establishing our rights. So even though, and and it's why I went through the history, uh, on this sort of conduct, uh, because I have seen, and and and you may see, people on either side citing 18 U.S.C. 2385. It is still on the books, right?

Because Brandenburg was not about, it was about a specific Ohio state law, and so not about that federal statute. The court lacks the power to prospectively say, "Oh, by the way, we're going to strike down this part of the statute." It is still on the books. So you don't have any way of knowing when you look at it that it's not good law for mere advocacy, but it's Not Good Law for Mere Advocacy. And that's why I felt comfortable.

0:45:01 Thomas: Yeah. Right not Yet, not until, you know, maybe the Supreme Court takes another crack at it.

0:45:52 Andrew: So that leaves then the other half, right, the part of the Douglas Dissent on sedition that I I read, which I want to tell you is still valid law in this country, and is the immediately prior section, 18 U.S.C. 2384. Right, we were talking about 2385, is subversive, uh, advocacy. 2384 is sedition. It is very narrow. It prohibits, quote, "If two or more persons subject to the jurisdiction of the United States conspire to overthrow, put down, or destroy by force the government of the United States, or levy war against them, or oppose by force the authority thereof, they shall be subject to the same criminal penalties."

0:46:41 Andrew: That is, fines, imprisoned not more than 20 years, or both. And it is constitutional. We know that it is constitutional because it has been litigated recently in a case called U.S. v. Rahman, involving Sheikh Omar Abdel Rahman, who was involved in the World Trade Center bombing. He was the co-founder of one of the groups that was a predecessor to various organizations that were, then he was partners with Bin Laden. Right, like, look, he's a terrorist.

0:47:17 Thomas: Yeah, yeah.

0:47:18 Andrew: Yeah.

0:47:18 Thomas: Fair.

0:47:18 Andrew: And and he was arrested in connection with plotting the World Trade Center bombing and other terrorist acts. And yep. And one of the things he was charged with was sedition. Right. Under this precise statute, 18 U.S.C. 2384. And he argued in court that the statute violated the Constitution, that it criminalized free speech and that it was overbroad and unconstitutionally vague. And and the Second Circuit said no.

0:47:26 Thomas: Like, Dude, you bought, you tried to bomb the World Trade Center, it's not really speech, bombs aren't speech.

0:47:51 Andrew: Right. Yeah. And it's yeah. And that's right. It says, that "These cases make clear a line exists between expressions of belief, which are protected by the First Amendment, and threatened or actual uses of force, which are not," right? Right, that's the line. It's also not vague or overly broad. The court says, "We recognize that laws targeting sedition must be scrutinized with care to assure that the threat of prosecution will not deter expression of unpopular viewpoints by persons ideologically opposed to the government. But Section 2384 is drawn sufficiently narrowly that we perceive no unacceptable risk of such abuse."

Want to make the strongest case for what your uncle Frank might be able to say, right, in the Rachman case, the court says, "The government possessed evidence of conspiratorial planning need not wait until buildings and tunnels have been bombed and people killed before arresting the conspirators. Accordingly, it is well established that the government may criminalize certain preparatory steps towards criminal action," even when the crime consists of the use of conspiratorial or exhortatory words. So, yes, there is a very, very narrow category of speech in which you get together your cellmates and say, here's how we're going to plant bombs at the Capitol,

0:47:55 Thomas: Yeah. Right

0:49:19 Andrew: Right? Here's how мы're goingto engage in terrorist activities. And then if they've wiretapped you for other, right, the government can arrest you for that. But have looked through. I can't say that there are 210 cases that cite Section 2384. I've read 30 of them. And I can tell you, with one weird exception involving a guy who is a drug dealer that I can't find anything about. It's a case called U.S. versus Ennis, E-N-N-I-S, from the District of Massachusetts in 2006. So I'll crowdsource that out to OA listeners. And it's guy named Stephen Nicholson. And I can't, there was another Stephen Nicholsons. And I've been, I spent like two hours down this rabbit trail trying

0:49:18 Thomas: You friended

0:49:59 Andrew: To figure out.

0:50:00 Thomas: Him on Facebook. But it was the wrong one tried

0:50:00 Andrew: Yeah. Well, Yeah. I would not friend this guy on Facebook, book. That, OK, so that's the one exception. This guy, Stephen Nicholson, from 2006. Other than that, the only time this statute has been deployed in modern history has been against terrorists, has been the 9-11 hijackers and co-conspirators, including Abdallah Higazi, right, has been against the World Trade Center co-conspirators. In the 1980s, it was against a group called the United Freedom Front, also called the Ohio 7, which was a left-wing organization that would rob banks and then take the money from robbing the banks to buy bombs to then bomb, like, ExxonMobil, it wasn't, it was just Exxon headquarters back then, federal buildings.

0:50:51 Andrew: It was mostly property damage that they did, but they did like blow up a federal building with people inside that wounded like 22 people. And some of their officers like killed a police officer at a traffic stop. Right. So, again, right. We are talking about activities that are an order of magnitude removed and and and all of the intent removed from protesting. Right. Even if you're at a protest where somebody, you know, lit a garbage can on fire or graffitied a wall. But again, we've been clear on this podcast, don't do that. Those are crimes. Sometimes that is not the kind of thing, I mean, I read you the decisions here.

That is not the kind of thing that remotely rises to the level of conspiratorial planning of the sort that you need to charge somebody with a violation of 18 USC 2384. So all of that, right, I wanted to go through because it is terrifying that we have an attorney general that is invoking the, the specter of these things. The invocation is a deterrent, it has a chilling effect, but at the end of the day there are no district attorneys, no matter how loyal they are to Trump and Bar, that are going to try and bring charges.

0:51:19 Thomas: Well, So could they go after people, um, you know, aggressively for, uh, say they they, they, they, they allege that they, or they have some indication or text or proof, that they want to go and do things like, you know, light a garbage can on fire. I mean, we saw, I brought up in my excellent brief, amicus brief, the, the fact that there's, you know, people in prison serving long sentences for doing almost nothing during protests back in, I, yeah, I think he was during the Ferguson protests. The guy, like, you now, lit some trash on fire and is serving a, what, was it like an eight year sentence? I mean, stuff like that. So there is every chance of that kind of prosecution happening, right? Yeah.

0:52:49 Andrew: Yes, but this is actually the silver lining, if there is one, in Barr overreaching. Remember, I quoted you his statements that were reported in The Wall Street Journal. Barr was saying, don't go after protesters on things like destruction of property and violating curfew," which, again, those are super, sadly, those, those are super easy slam dunk cases to make, right? The law prohibits the kind of conduct.

0:53:16 Thomas: I didn't catch that he was saying don't do that, huh?

0:53:17 Andrew: Yeah. He was saying, don't go after that, but instead go straight for attempting to overthrow the government.

0:53:26 Thomas: Well uh, that is very weird, I mean yeah Normally he's the like competent evil guy, but maybe this time his, uh, his overreach will, uh, will be a benefit to to protesters.

0:53:27 Andrew: Yeah. It's totally bizarre.

0:53:39 Andrew: Yeah, now, I mean, if you want to know why, Why, if you want to know the evil motive for doing that, that is you've now given prosecutors a much bigger stick. And so if you are attempting, and this gets into the, this is a side effect of the chilling effect deterrence that we've talked about. Remember, right, 99.5% of all criminal cases plead out, right? So what you're doing is if the prosecutor comes in with a straight face and says, "We've charged you with 18 U.S.C. 2384, violent sedition and overthrow of the United States government, that carries a 20-year prison sentence."

0:53:40 Thomas: Yeah. Yeah. True Yeah.

0:54:18 Andrew: We want you to plead guilty to X it

0:54:21 Thomas: It's such an old crap law that, I think we can firing squad you if you're guilty of it, yeah.

0:54:24 Andrew: It It, increasing the severity of the penalties and not including the lesser charges, right, because if you include the lesser charges, then the lawyers will say, "Yeah, you don't have a shot in hell on winning on sedition, sedition," uh, and, you know, you've included, uh, know, lighting a mailbox on fire, which carries a $500 penalty or whatever, "Well, we'll plead to that one," right?

Um, the there is a tactic, uh, of overcharging defendants and then saying, "Yeah, we're not, we're not charging you with lighting the mailbox on fire, we're going for that," so, uh, "You want to roll the dice in court with 20 years on sedition, or do you want to plead to a year in jail on, you know, this heightened, this charge that otherwise we wouldn't be able to prove?" So, um, if I wanted to put myself in the dark and terrifying mind of Bill Barr, um, that, that's what I would think.

But, but, but let me emphasize, right, understanding that prosecutorial overcharging happens, the ethics rules, right, these people who are line prosecutors who work for the Department of Justice are bound and required not to bring false charges, right?

0:54:43 Thomas: Mm-hmm

0:55:42 Andrew: Not to bring unsupportable charges, charges for which they either know they cannot prove the elements of the crime or lack an articulable basis to say, a good faith basis to say that we should bring these charges. So I I I'm I'm putting our faith in people. I've I've. I would say there are a lot of reasons to think that that's well found. Right. And and we've talked about that on the show a lot. Right? Like we have talked about, know, Brandon Van Graak resigning from the Flynn case when the government said, we want you to file this rule 48 a motion and dismiss everything. And him saying, uh, no. Right now, you know, we can talk about how much more, you know, how much More courage do you know? Like we can debate all that back and forth. But I, I feel like highlighted the dangers of Barr making this advocacy. I do not think that it will stick for the reasons that that I've described.

0:56:00 Thomas: Silly silly Andrew, okay.

0:56:41 Thomas: Well, we'll try for some optimism there. Appreciate the uh, the deep dive. Uh, just a reminder again, maybe, um, when you recognize how much liberal Supreme Courts have done for our rights, maybe we ought to ensure that we get a liberal Supreme Court sometime in the next, you, dozen years or so. We'll see. Wow.

0:56:59 Andrew: Seems like a really great idea. If only there were something we could do. Yeah. Yeah, yeah. No, I'll repeat Eli Bosnick here. We know that you were tired of hearing us say, go vote for Biden and Harris. We're tired of having to say it.

0:57:01 Thomas: I know, there's alas yeah

0:57:18 Andrew: But by God, we're going to continue to say and um and and uh wish it wasn't necessary yeah it really is we

0:57:18 Thomas: It's just vitally important, it really is. It just it just is, we have to put an end to this madness, uh, and then we'll deal with what comes after that. That doesn't mean everything's solved. You have to, putting an end, you, to the, to the bleeding. I mean, it's just awful.

0:57:39 Clip: And thank you, Let's go!

0:57:40 Thomas: Right, and now it's time to thank our new patrons at patreon.com/law, and I'll handle these this time around. Thank you to Brian Coulter, Badal Patel. Well, William Patterson, the flat tyres of justice are wobbly. Tires with a Y.

0:57:58 Andrew: British listener.

0:57:58 Thomas: Yeah. Dario Estrabao, two Gary Johnson voters for Biden because Trump is a threat to the Republic. Well, you know, congrats.

0:58:09 Thomas: Thanks for coming around. Yeah. Jamie Barnett, Brian Farrington, Godpuncher, Angus Watt, and Carol. Thank you so much, new patrons. Patrons we Hope you enjoy, by the way, a lot of movies we had to reschedule. It should have been out, but it'll be, it'll be out very soon, within a day or two. And we've got a fun one for you. We've got a Keanu Reeves movie, uh, that, uh, spoiler, was produced by Dershowitz's son, uh, it, this is, it's gonna be fun. So that's coming at you, patrons, real soon.

0:58:07 Andrew: There you go. Hey, we're making a difference.

0:58:19 Andrew: Yeah.

0:58:39 Andrew: We are not doing the law of Bill and Ted, which would be fun. But yeah, I

0:58:39 Thomas: Um, No, No, That, I've, that movie has gotten really good reviews. I forgot, I meant to watch that. So people are loving that that new Bill and and Ted, uh, but anyway, we

0:58:51 Andrew: Did. I did see it, so we can talk about that during our review.

0:58:52 Thomas: Oh, Nice. We Will, um, we will have that lot off of movies do you find, patrons, very soon. Thanks so much for pledging. All

0:59:01 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:06 Thomas: It is time for T3BE. Uh, I think, I think it might be two in a row. I don't know, I'm doing, oh, that's right, now I remember, because the music, yeah, we've gotten good music two times in a row. We'll see if I get to, uh, you know, play some bad music. Do have any, uh, do you have any ideas, any Andrew opinions, on what the opposite of Chariots of Fire is, like, any, any crappy 80s hair metal that's like really dramatic and Negative.

0:59:27 Andrew: The Uh, I was, thematically, I was thinking the opposite of Chariots of Fire is probably AC/DC's Highway to Hell, right? Um, but Uh, Oh, no, it's still a great song. Yeah, no, you want, oh, maybe like, I don't know, something by The Cure, like, uh, You Know A Truly Like Depressing, uh, you know, everything is awful, uh, yes.

0:59:38 Thomas: That's Still Upbeat, though. Oh, yeah. Okay, I'll look Into That, I'll Look into that. Oh, So you mean my, um, preferred music? Okay, so Just look at Any of my Preferred Artists. Got It, okay.

0:59:58 Andrew: Exactly. Yeah. Anything From Right, I Was Trying to

1:00:01 Thomas: Play Some

1:00:01 Andrew: Think of actual songs That are still good, but yeah, no, if you just want, like, depressing Music that makes you want to kill yourself, like, pretty much everything released From 1993 to, you know, 2004.

1:00:05 Thomas: Uh-huh. Oh, No, That's not at all True, but it's definitely my taste, uh, or how about this, I'll just never get one wrong again, we'll never have to worry

1:00:10 Andrew: Yeah. Absolutely. Perfect, hoping for more Chariots of Fire. A Man and a woman, both purse snatchers, independently entered a grocery store, each with the intent to steal purses from unsuspecting shoppers.

1:00:34 Andrew: So, this, this Is, yeah, already like a, uh, Dirty Rotten Scoundrels kind of

1:00:34 Thomas: Are They Gonna, this Something, you know, like a rom-com, I'm thinking, no,

1:00:40 Andrew: Well, I was thinking Dirty Rotten Scroundrels, which is an amazing Steve Martin Comedy.

1:00:44 Thomas: I, I'm Thinking They ended up stealing each other's Hearts, see.

1:00:46 Andrew: Oh, I like it now. So the man approached a victim, grabbed the strap of the purse that was hanging from her shoulder, and pulled. The victim screamed and tried to hold on to the purse, but the man knocked her down, causing her to lose her grip on the purse. The man then escaped the purse during the commotion that arose when the man's victim screamed, the woman approached the shopping cart of a shopper who had turned towards the noise and wandered away from her cart. The woman reached into the now unattended shopping cart, grabbed the shopper's purse, and quickly walked away, also escaping with a purse.

1:01:20 Thomas: She's A better, better purse snatcher. That's a,

1:01:21 Andrew: Yeah. Both purse snatchers were apprehended a short while later, so They Both suck at their jobs. Which of the two purse snatchers could properly be convicted of robbery? A, Both the man and the woman. B, only the man. C, only the woman. Or D, neither the man nor the woman.

1:01:28 Thomas: Oh, okay. Yeah.

1:01:46 Thomas: So This is going to be one of those, you know, robbery v. larceny, uh, questions. I mean, I think just right off the bat, if I remember correctly, there's no guarantee of that. Um, I, I'm the opposite of the Princess Bride quote, unless I'm wrong, and I'm always, he's wrong. Uh, so I, you know, I think the argument here would be robbery requires some sort of physical altercation type thing or threat of violence or whatever. Whereas the, the woman in this situation just, you absconded with the purse, you knows, a very peaceful operation. And so is that just larceny? Ah, man, I, I don't know. I, so from what I remember, definitionally, it seems like, you know, the man committed robbery, the woman Committed larceny.

From what I remember, it still feels weird, it's still, and maybe it's just because in common parlance we use the wrong words, but it's still, you know, if someone said like, I was robbed in the store, someone, you know, no, One Would be Like, yeah, you were larced. Yeah, what, what, LARPed? No, LARCed. Yeah, it Would take a really big, like, well, actually guy, bold, well, actually reply guy to be like, no, you weren't robbed, you were LARCed. That would be, but I don't know. Okay. So that's my instinct. That's my memory. I think maybe I should just trust my memory of these definitions and say that only the man can be charged with, with robbery, or convicted, properly be convicted of robbery.

I think, I mean, maybe there's going to be some, so if I'm trying to narrow down answers, as I always do, and I'm usually pretty good at narrowing down to two, I would say that there's no chance it's only the woman, C, only the women. I, I think there's pretty much no chance of D, neither the man nor the woman. Well, let me, letme take a quick check just to make sure.

1:02:48 Andrew: You were Lursed. All

1:03:43 Thomas: So the man approached a victim, victim, grabbed the strap of the purse, pulled, victim screamed and tried to hold on, but the man knocked her down. Yeah, that's a robbery. So no chance it's D, uh, no chance it's C, like, that just seems impossible. The definitely could be a, somehow, like, I wonder if there's some, I don't know, some exception, some, some way that, that just reaching into a non-attended shopping cart becomes robbery, if, under certain circumstances, or maybe I'm misremembering the, the definition, but I'm gonna, I'm going to trust what I remember, I'm gonna go with Be, only the man, final answer, yeah.

1:04:20 Andrew: Right. I love it when Thomas is super confident. So that should not guide your guesses. But if you in the listening audience would like to play along, you know how to do that. Just share it this episode on social media. Include the hashtag T3BE. Include your guess, your reasons. Therefore, we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortune, not guaranteed.

1:04:41 Thomas: You could boldly go against the guy, the, the, the guy on a two question streak, that's, uh, that takes

1:04:49 Andrew: I don't know that anybody will take that level of risk.

1:04:51 Thomas: Real Courage. All, all right, that's our show, uh, thanks for listening, I know that was a bit of a bummer, and, uh, but that is, wow, we live in a hellscape, we, uh, we live in a parody of what people thought Trump's America could be, it's even worse, honestly, but, uh, that's why we need to stay strong and vote to end the madness in a few short months here, so thanks for, for listening. We'll see you next time.

1:05:15 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:05:49 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra 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 Arguments 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.