OA432: Trump Accidentally Declassifies Russia Docs?!

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 432. I'm Thomas. Sorry, just tucking in my shirt. How you doing, Andrew?

0:01:32 Andrew: Well, better than Rudy Giuliani, that's for damn sure, so, I'm fantastic, Thomas, how are you?

0:01:37 Thomas: I don't know what you're talking about. It just seemed like a totally reasonable explanation for the camera stills that I've seen. Definitely, definitely, uh, what a what a disgrace that guy is, I I just can't, I mean, unbelievable. Anyway, we have so much to talk about, what we really want to get to is the announcements, I know that's the best part of the show, and today especially, yeah, why don't you give us some great announcements, Andrew, these are good ones, yeah.

0:01:50 Andrew: Ah, couldn't happen to a nicer hobgoblin, so there we go. Yep, that is, it's my favorite part of the show. These are good ones. So, uh, boy, where, where to start? Uh, how about, uh, at, I don't know that anybody made a specific request, but you know, folks will sometimes, you know, reach out to us and say, hey, we love the show, uh, but, uh, everything's horrible and, um, it's sometimes hard to listen. And when it's all about, you know, terrible things Donald Trump is doing all the time, and I always say to them what I'm about to say now, which is we try and cover some non-Trump stuff. I mean, it's tough, right? Like, you know, we have a criminally insane game show host as president. So next week, not only no Trump on the Tuesday episode, but I'm going to tell you a good thing that Bill Barr is doing. I have

0:03:05 Thomas: Okay, this is, folks, this is part of an elaborate prank that I am not privy to, I, yeah

0:03:07 Andrew: Broken Thomas, that is coming up next week.

0:03:12 Thomas: Well, if you weren't Mr. Fantastic himself, I would assume this was some evil plot. But since you're always fantastic, since you are not a mean person, I'll just assume. Okay. I guess that's what's happening Tuesday, guys. I'm excited. Alright. The one I was really excited about is our second announcement.

0:03:30 Andrew: Um, our amicus brief, but that is the thing that belongs to all of us that we filed, uh, before Judge Sullivan in connection with the government's Rule 48a motion to, just to, uh, dismiss the the charges against Michael Flynn, that, uh, our motion for leave to file that has been granted, signed by Judge Sullivan, um, it, it means that the court is free to cite our brief in its rulings. So, I, I just

0:03:59 Thomas: Think I'm going to play some Chariots of Fire right here. You deserve it. You earned the Chariot of Fire, Andrew. Here we go. Wow. You are correct. The best kind of Correct. I, I'm so happy for, uh, you and Morgan and just everybody, the whole show. Our amicus was accepted. I'm still, so is mine? Mine in there, or okay.

0:04:08 Clip: You are correct the best kind of correct

0:04:13 Andrew: Uh, Yours Yours is pending, uh, still.

0:04:26 Thomas: So should I should I wait by the phone or I just do

0:04:26 Andrew: But, uh, it could be Yeah, uh you'll get, a you'll get a little notice from CME ECF if it gets a Well,

0:04:33 Thomas: They do they usually accept them in like a staggered, you know, like it takes a while between amicus's that they accept. Is that normal court procedure?

0:04:41 Andrew: Mine came Friday night and then a bunch more were granted over the weekend. But I'm sure Judge Sullivan is getting around to yours any any day now. Yeah, a

0:04:42 Thomas: Hmm. Okay. Just gotta just gotta go over mine the fine-tooth comb a few more times. Okay, well, all right, I look forward to that, but, but yeah, but but yours too, though, is what's awesome, that yours is accepted, it's so cool. Who would have thought, Andrew, Opening Arguments amicus brief, we're in the courts, we're, we're a, a part of history. Amazing.

0:04:54 Andrew: Little bit. Yep. Yep. Yep. I it made my weekend last week. So, yeah, we're real party that Judge Sullivan has decided has interests in the litigation. And our interest is, as specified out, yeah. Is restoring public faith and confidence in the rule of law. So I just, I couldn't be happier. Again, you know, you, I was, I was going to say this, but as you, as you pointed out, I owe a huge debt of gratitude to Morgan Stringer, our ace associate, and and Rich Gilliland, who was our summer intern, both of whom contributed around the clock work for about two weeks to to get it done. And, um, I

0:05:23 Thomas: Justice.

0:05:56 Thomas: I love that you use the royal hour for associate. So does that mean I could could have Morgan do some some some homework, some some research? I didn't know I was part of this firm. Awesome. OK. The announcements don't end in the amazing announcements down in there. One more. Here we go. I'll do this one. We're having an election night live stream.

0:05:57 Andrew: Just yeah yeah yeah She's

0:06:17 Thomas: This is either going to be really awesome or really, really, really, bad.

0:06:25 Thomas: No, it should be really awesome. We are going to stream on election night as is most everybody who has a show of any kind. We're going to stream at 5 my time. That's 8 East Coast time. And we're going to stream for a couple hours. So 5 to 7, 8 to 10. was excited, and now I'm instantly scared. There may be just mysterious technical difficulties if things aren't going well election-wise. It may just cut.

0:06:51 Andrew: I, I share, I share that, being scared. So, so we're going to do that in lieu of our monthly Q&A. And what we're gonna do is, I am going to release, prior to election night, for patrons, patrons at all levels, um, my, um, map, my, what you know, the, the, the things that I will be looking for on both the state and, uh, even in some cases down to the county level, um,

0:07:17 Thomas: Do like a bracket, like a map prediction? Oh, okay. We'll do a map projection.

0:07:17 Andrew: Yeah, Yeah. We'll do it, we'll do a Patreon yeah, uh, bracket competition.

0:07:26 Thomas: No, like you. Yeah, yeah, you and I. We'll see who wins. Although we'll have to live stream for like two weeks to get the final result. But I

0:07:26 Andrew: Yeah. Yeah I I do think it will be, it will, will be a while before we get the final confirmation on the numbers, and yep,

0:07:39 Thomas: And while we're at it, uh, for patrons, you got a Law'd Awful Movies the other day, tons of fun, very interesting one, unique Law'd Awful Movies, and then it took a month to do, but, uh, there, there's a good reason for that, as you'll hear. All

0:07:52 Andrew: Oh, and patrons will get, I've got, uh, another eight page memo of stories and court docs and things that that didn't quite make the show, that, um, you know, I'm trying to do this every week because we, we compile a lot of research, and, you know, it all gets wadded up into a ball and thrown into the trash on Thursday morning. So, uh, so I'm going to share that, uh, I'm gonna share that, that with, with you guys, if you're patron at any level, you'll get, you'll get that document in your Patreon feed.

0:08:19 Thomas: Right, well, now we're done with the exciting part of the show, which is the announcements, what everybody comes here for, and now let's get to the substance of the show. So Andrew, there's a development in the E. Jean Carroll case. This is the one, listeners should should remember where Trump is doing his presidential duty by denying that he sexually assaulted someone, according to the Justice Department. What's the update?

0:08:21 Andrew: Yeah yeah

0:08:29 Clip: The law breaking down

0:08:51 Andrew: We covered this case initially back in OA Episode 420, and the sort of Cliff Notes version of that, that is, notwithstanding the correct ickiness with which you described what the DOJ is doing, that in my view, there was a legitimate, quote unquote, argument under the Federal Tort Claims Act to invoke transferring this case from being a case personally against the president to one being defended by the Department of Justice. But as I articulated a couple of weeks ago, I thought the strongest argument was a waiver argument, right, was the fact that prior to invoking the FTCA and seeking to substitute the Department of Justice for himself, President Trump litigated this case in state court in New York for a year.

So we have now, since that episode came out, we have now had the opposition filed by E. Jean Carroll's lawyers. And again, I want to emphasize this. Roberta Kaplan is a better lawyer than I am. She is smarter than me. But I'm a little bit befuddled by this opposition. Also want to tell the story because there's a a hilarious story that goes along with this. So do you want to talk about the law first, or do you wanna talk about The Hilarious Story first?

0:09:48 Thomas: Right.

0:10:20 Thomas: Oh, I get to choose my own adventure, huh? Let's see.

0:10:22 Andrew: Yeah, yeah, it is.

0:10:23 Thomas: Let's talk about the law first and save the wackiness for after.

0:10:24 Andrew: Let's skip ahead to the end. Okay. Okay, I think it makes sense that way, but I wanna give you a chance to cut to the end.

0:10:33 Thomas: So turn to page 237. Here

0:10:36 Andrew: Yeah.

0:10:37 Thomas: We go. Yeah.

0:10:38 Andrew: So the government's initial motion to substitute was four pages long. E. Jean Carroll's opposition was 45 pages long. We're going to talk about that in a second. And then the government filed a 15 and a half page reply. And so there has been just put a pin in this. There has been some grumbling back and forth that the government, you know, sandbagged its arguments. Right. Like generally speaking, it's not kosher in court to file a four page motion and then a 15 page reply brief that cites 50 new cases, which is, in fact, what the government has done. E. Jean Carroll's argument is not what I expected. Now, again, let me be perfectly clear about this. This may be due to intel on the particular judge in this case. Hilariously enough, Judge Kaplan, but but no relation, as you might imagine, that the rules would prohibit you from, you know, sitting where the judge is your, you know, father or brother or son or something like that.

0:11:49 Andrew: But so, look, they may have a particular read on this judge. I don't know. All I know is that I was shocked. Shocked is the wrong word. I was surprised by the argument. So here are the arguments that are being made. They are an argument that the Federal Tort Claims Act does not include the president. And this is kind of a mirror image of the argument that Seth Barrett Tillman has been making on our show dating back to 2016, right, that the FTCA covers an officer or employee of an executive department. And that that does not include the president and that he is also not an officer or employee of an independent establishment of the United States.

0:12:41 Andrew: As you might imagine, the president, this particular issue has not been litigated with specificity in the courts before either way. Right. And so Trump's opposition says, and I think somewhat persuasively in my view, to Judge Kaplan, do you really want to be the first court that says this statute does not apply to the president? Um, and that's, that's a particularly good argument, you know, usually, uh, to a sitting U.S. district court judge, right? To say, look, you'd like to be on the circuit court of appeals and maybe the Supreme court someday, and you don't want to get overruled by the, in this case, it would be the second circuit.

0:13:34 Andrew: So, you Know, why, why should you go way out on a limb and, you know, kind of break new ground on what the law means. More so than that, there is also the argument that any employee of the government, historically, the word any carries an expansive meaning and that that would apply to all federal employeees. And the president is, in fact, actually a federal employee. And there's a lot of case law that has said that the president counts as a federal employe. Now, is that dispositive of the definition section, which is 28 U.S.C. Section 2671, which says employee of the government means only employees or officers or officers of any federal agency.

0:14:27 Andrew: And the federal agency includes the executive departments, the judicial and legislative branches, the military and independent establishments of the United States, which the president would not fall under any of those, right? Like the president is not an employee of an executive department, right. He's the head of all of the executive departments. So I don't know. I will tell you, in my view, this is kind of an uphill argument, Right. It's it's one that would require Judge Kaplan to say, no, I think that these interpretive principles do apply. And so as a matter of first impression, the FTCA does does not cover the president. That's their first argument. Their second argument is that Trump was not acting within the scope of his employment as president. And here I will tell you.

0:14:44 Thomas: Yeah.

0:15:20 Thomas: We'll have to take a look at the employment contract, the expectations, the job duties.

0:15:22 Andrew: Yeah. Sadly that. Yeah, there's an NDA covering that. But no, here I think the president has the better of this argument. I mean, I hate to say that, but you might recall in episode 420, I walked us through the Ballinger decision.

0:15:25 Thomas: Yeah. I was so high, man. I don't recall.

0:15:43 Andrew: Decision. I need a call back to episode 69. Too, as long as we're doing this, but no.

0:15:48 Thomas: I know you really should have just shoehorned one in like,

0:15:52 Andrew: Um, in in episode 420, when we talked about what counts as the scope of employment, we talked about the Ballinger decision, right, which involved the congressman who decided to slander the Council on American Islamic Relations and then gave as an explanation for that, like, oh, you know, this has to do with their relationship with my wife and everything, and all of that, right? Right. Like the lying about slandering care was was all held to be within the scope of the employment of a member of Congress. Could you distinguish it as not being the president?

0:16:38 Andrew: You could distinguish it is not being a president, I suppose. But I don't think that that's that that that a great argument. And I will tell you, the opposition brief, effort to differentiate, to distinguish the Ballinger decision is, well, here, why don't I read it to you, right? Right. All five of the cases cited by the Justice Department involve statements by members of Congress on pending legislative matters or public events of widespread political interest. And then including CAIR. None of these cases involved statements remotely analogous to Trump's personal attacks on Carol. Carol, there is a world of difference between members of Congress making controversial comments on affairs of state and the president repeatedly slandering a private citizen to punish her for revealing that he sexually assaulted her.

0:17:30 Andrew: That's particularly true in light of the comprehensive allegations in the complaint concerning Trump's motives for defaming Carol. So weigh that as you will. In my view, the underlying holding of the Ballinger decision is not that we have a public interest in and Islamic cultural relations, right? Right. That the underlying principle is running for reelection is part of the job of Congress. And I think it is a very, very short step from that to say running for re-election is part of job of the president.

0:18:11 Thomas: But what are the limits? Is this just because we're talking about speech? You know, because like it's not as though you can kill a guy because you're trying to run, you know, like I'm trying to run for re-election and this person's in my way, so I'm gonna run over them with my car. It's just because we're talking free speech kind of thing, okay, but could you Okay, so if in your quest for relection, you, I, was about to create a uh hypothetical that I I realize is not that, uh, far-fetched. Could you make a false claim about a drug you're selling? You know, like other plate, like our last bar question, you know, can you violate other, other things just because you're running for reelection?

0:18:27 Andrew: Yeah, yeah, yeah. That's right. And so they're related. I think That's a really, really good argument. Right. And the argument is essentially that the principle that is established in Ballinger and a couple of other cases is must have some limits to it. Right? And those limits are, you know, certainly somewhere south of, well, I killed a guy because he was about to reveal something that would be hostile to my reelection prospects. And they're probably south of lying in public about the efficacy of a drug that your company manufactures, right, to kind of take that hypothetical.

0:19:39 Andrew: And so you would say, like, so by implication, then, right, that the wide ranging statements in these cases must have some limit. And if they must have some limit, right, you would argue that this is as disconnected, right? Like the only injury to the public interest here is having the electorate find out true information which would cause them not to vote for you, right, right. Right. Like there is not a public debate here about, you know, should we increase the safety in changing rooms in upscale New York departments? Right. This is this is utterly unconnected to any public issue, which is the argument that Carol was making. So it I'm glad you kind of took up the mantle there. I will tell you, I don't think that I don't expect this to be particularly persuasive. But, you know, I could be wrong on that. I found sort of most troubling is that the that the Carroll brief really reduces never explicitly makes the waiver argument, which, again, in my view, is by far the strongest argument.

0:20:11 Thomas: Oh,

0:21:00 Andrew: Argument. Instead, it's kind of reduced to one of a laundry list of things that are cited as this is kind of weird, it is, right. And they say, you know, seventh, in addition to everything else, government has been litigating this for more than a year in state state court, is true. But like I said, I would have featured that argument far more front and center in. Instead, what they say is this conclusion, which has to do with the last argument, which was about a choice of law issue, is bolstered by at least seven additional considerations. And this is starting on page 29. We'll provide the link in the show notes, which are basically here are some seven weird things that should make you think that this is much more like the I killed a guy to, you know, prevent him from leaking stuff that would hurt my reelection.

0:21:54 Thomas: They did a Buzzfeed list

0:21:56 Andrew: Yeah, it was kind Of a listicle sort of thing. Right. So, so starting on page 29, it says, "First, the substance of Trump's statements reeks of personal animus. It is inconceivable that Trump aimed to do his job as president by implying that Carroll is too unattractive for him to sexually assault her. The same is true of the rest of his defamatory statements. Second, Trump's statements concern allegations of sexual assault, which New York law recognizes as especially likely to engender personal motives. Third, Trump was under no presidential obligation to make those statements." I don't think that's a great argument for the reason we've talked about. "Fourth, Trump's attacks on Carroll do not reflect anything unique to his current position or involve any presidential prerogative, but rather track a modus operandi of purely private conduct stretching back decades. Fifth, since Trump took office, his administration has referred nearly all questions about his sexual misconduct to private lawyers or campaign counsel, treating these matters as personal in nature."

0:21:56 Thomas: And they're, uh. Wow.

0:22:51 Andrew: I actually think that's a good argument. "Sixth, the context in which Trump made some of his defamatory statements, those irregular procedures, appears to have been hurriedly, hurriedly dictated by Trump and conveyed to a reporter who tweeted the image of his statement on the on a page lacking any official markings. And then seventh, the conduct here is far more obviously based on personal motives and unrelated to his job as president than conduct he has elsewhere described as president.

Trump views his commercial dealings with Russia and China as personal, not presidential. His views blocking people on a platform which he's fired cabinet secretaries as personal, not presidential. Only in a world gone mad could it somehow be presidential and not personal for Trump to slander a woman who he sexually, who he sexually assaulted." Think that gives you a flavor for how this brief reads, right? In my view, and again, subject to what I've said, Roberta Kaplan is smarter than I am and a better lawyer than I am. This brief, in my view, is intended to, I shouldn't say intended, I don't know what the intent was, reads like a brief that was designed to be litigated in the press, right? As opposed to a legal document, right. I said it was 45 pages long. The fact section, right, is nine pages of those 45 pages and is interwoven pretty strongly throughout the argumentative section, right. The rhetoric is, you know, I just, I just read some of it to you. And again, I think all of that is perfectly appropriate. It's just, I'm sort of trying to decipher the the legal strategy.

0:24:28 Andrew: The last argument, and the one that I think is the most interesting, is a state law argument. And requires a little bit of OA unpacking, so we'll do that. When you are in federal court because of diversity jurisdiction, oftentimes, right, so if you're in federal court because of a federal law, then the federal court just applies that law, right? But if you're in federal court because of diversity jurisdiction, and the underlying claims are state law claims, we've talked about this before, the federal court has to go through an analysis called choice of laws to figure out what state's law to apply in that court.

0:25:15 Andrew: And interestingly enough, right, there is nothing to prohibit a federal court in one jurisdiction, in jurisdiction A, with litigants in jurisdictions B and C from From applying the substantive law of state D. Right. So, yeah, let me.

0:25:36 Thomas: What? Yeah.

0:25:38 Andrew: Yeah, right. Let me let me put actual names on that. I live in Maryland. Thomas, you live in California. Suppose we sign a contract that says any dispute between us relating to opening arguments will be decided under Omaha, under the under.

0:25:39 Thomas: North Dakota law.

0:25:58 Andrew: Yeah. North Dakota law with such trial, we consent to to be conducted in Omaha, Nebraska. Right. So so then, yeah, use it.

0:26:07 Thomas: Weird. Weird. Couldn't the court just be like, you guys are being pains in the ass. That's a stupid contract.

0:26:16 Andrew: They could tell us that it is a stupid contract. But in fact, if we are in federal court in Nebraska, the District of Nebraska, a court would then apply North Dakota law to a dispute between a California citizen and a Maryland citizen. And there would be nothing improper about that. I mean, you know, it would be weird. But that's how choice of laws work. So E. Jean Carroll's lawyers are arguing that the substantive law that this court needs to apply is the law of New York, right? Right. And the reason for that is because all of the predicate conduct that is alleged took place in New York.

0:27:06 Andrew: Right. Even though the interview that Trump gave was in Washington, D.C. And so there are lots of different tests to kind of figure out what you particular law applies. Right. Where the contract or the allegedly tortious conduct occurred is the sort of the first step that you look at in undertaking that analysis. But there are lots of right. What state has the closest connection? You know, there are a bunch of different sub criteria. But here's the important part.

If New York state law applies, then the principle that is well established in New York law that says an employer may be held vicariously liable for torts committed by employees acting within the scope of their employment could Could sit on top of the Federal Tort Claims Act. Here. Right. And say, and so, in other words, under New York law, it is clear that when a person is acting for personal reasons to obtain a personal benefit, they are outside the scope of their employment. So this is, I think, and then that, that would be the argument, right, that like, this is not about Donald Trump trying to win election and you, you would, or reelection. Right? Right.

And you would have a number of good statements from Donald Trump to that effect. Right. I could shoot somebody on Fifth Avenue, it wouldn't cost me any votes. This is about Donald Trump trying to shield himself from personal liability for a personal decision that he made involving personal acts that he allegedly undertook 20 years ago.

0:28:57 Andrew: And that's a really clever argument. So that's kind of how it breaks down. Now, Trump's argument to the contrary, again, I think has some teeth here. And that is it's a version of the Dershowitz argument. Right. It is it is that we heard during impeachment. It is very difficult to prove that the president ever acts outside of their employment. Right.

0:29:25 Thomas: Yeah.

0:29:25 Andrew: That that things that are personal to the president are also affect the country as a whole. And, you know, that's you know as you as you noted. Right. That's a pretty tough argument. And we will see sooner than I might otherwise have thought because now if you pull that pin out. Here's the fun part of the story. Yeah.

0:29:48 Thomas: Oh yeah, that pin. I was like, there's a pin? There's always so many pins. Yeah, okay. Zany time. Here we go.

0:29:52 Andrew: Yep. So Carroll's opposition was filed on October 5th. Trump's reply brief was filed on October 19th. The parties kind of went back and forth about the impropriety of the government's reply brief. And the court scheduled oral argument on this for two days after that, However, the United States of America, by and through the assistant U.S. attorney that it sent over from the Department of Justice Civil Division to argue on behalf of the motion to substitute the United United States for Donald Trump, was precluded from entering the courthouse because he traveled from his home in Virginia. And the state of New York requires that if you're coming from Virginia, that you quarantine yourself before you go into the courTHouse.

So and I uploaded this to the webpage. This will be linked in the show notes. So on the day of the hearing, that AUSA, Stephen Terrell, filed a letter motion electronically, right? So sat on the courthouse steps, took out his laptop, connected to the free Wi-Fi, and filed a motion that said, the United States of America hereby respectfully moves the court for a continuance of the argument On the pending motion to substitute the United States for President Donald Trump in the above captioned action, which currently is scheduled to be argued today at 3.30 as grounds, the United states respectfully submits that this morning when the attorney for the U.S.

0:30:50 Thomas: Quarantine? Oh wow.

0:31:38 Andrew: Who was designated to present argument was denied access to the courthouse on the grounds that he had traveled from his place of residence in the Commonwealth of Virginia, which yesterday apparently was added to the jurisdictions from which the state of New York bans travel. Now, that would just be funny in and of itself, except that Judge Kaplan then decided to deny the motion, and denied the motion in part because the the Commonwealth of Virginia and state of Virginia was on the list of prohibited travel for more than a week. Right. That this. Oh, yesterday it was added to the jurisdiction and it was sprung on us. And Judge Kaplan was like, what the hell are you talking about? It's it's been on the banned list for, you know, on the quarantine list for at least a week.

0:32:25 Andrew: See this citation. So either you get somebody else here to argue this case, or I'm going to decide this case without oral argument. And I do not know. I can guess. But like, right, the U.S. attorney's office in the Southern District of New York had lawyers who could have shown up at the courthouse. Uh, but uh you'd

0:32:48 Thomas: Yeah I was gonna ask if this was some sort of ploy, but when you talked about how it was just added to the ban list, maybe it was a mistake. But I thought this would be like a nice way to buy two weeks, I guess, hypothetically.

0:33:02 Andrew: You'd think, but if, they had gotten two weeks, right, would have pushed it potentially, uh, beyond election day, uh, so Uh, no, so the court was like, yeah, either you get somebody here to argue this, or I'm going to decide it on the pleadings. So we may get a ruling on this in the next couple of days from Judge Kaplan. And again, I've said, I think that the government has made non-trivial arguments here, but it sure seems as though Judge Kaplin is not having any of it. So we'll see what happens.

0:33:07 Thomas: Yeah. Holy crap. We're less than two weeks to election day, folks. Wow.

0:33:43 Thomas: There's our A segment. Time to get to the main segment and the wild card. Okay. Here we go. Here we Go, Andrew. Let's see.

0:33:48 Andrew: Yeah, well, we'll blast this out.

0:33:51 Thomas: Yeah. Okay. Oh, I remember this. So, Trump recently tweeted out that he was declassifying, what, everything involving Russia? I'm sure you'll tell us. And then I saw a lot of people wondering, like, wait, so does this mean a bunch of stuff will be redacted? So. So, why don't you break that down for us?

0:33:52 Andrew: All right.

0:34:10 Andrew: Yeah. So as you as you point out, on October 6th, while high as a kite on steroids, Donald Trump tweeted out, I have fully authorized the total declassification of any and all documents pertaining to the single greatest political crime in American history, the Russia hoax. Likewise, the Hillary Clinton email scandal. No redactions. And then about an hour after that, Trump tweeted again, presumably having been advised that maybe you should do a takesies-backsies, instead said, all Russia hoax scandal information was declassified by me a long time ago. Unfortunately for our country, people have acted very slowly, especially since it is perhaps the biggest political crime in the history of our country. Act with three exclamation points. And I, I've tried not to, you know, this, this contains the usual Trump spelling, random capitalization, everything else, um, and uh,

0:35:00 Thomas: Yeah. I like to picture he's a director setting up a scene or something. Act! Like, that's your premise. Or like it's a, yeah, it's like an improv class, like, okay, you're Russian, the hoax, you're the act. Anyway.

0:35:21 Andrew: All right. Freeze and replace. There we go. Yeah. And and so, yeah. So a lot of us said, is this right that the president has absolute authority to declassify documents? And we take it as such? And fortunately, Jason Leopold of BuzzFeed decided to file three separate emergency motions on October 8th. So this is October 6th in the evening while high on steroids. Then they spent a day drafting the emergency motions and filed them in the morning on October 8th. And they were filed in the U.S. District Court for the District of Columbia before Judge Reggie Walton, who has heard a number of these ancillary Mueller report related cases.

0:35:23 Thomas: Yeah. Huh.

0:36:14 Andrew: And so basically what BuzzFeed said was, look, we've we've filed a bunch of FOIA lawsuits to try and get the underlying materials from the Mueller investigation. Right. What we want are we want the 302s. Right. Those are the interview transcripts. We want the the fully unredacted report and we want ancillary documents relied upon in connection with with the Mueller Investigation. And the Department of Justice has said, oh, like, and literally, I am not exaggerating. They said that would be 18 billion pages and take hundreds of years to declassify.

0:36:55 Andrew: Yeah, right. Like, look, I've worked on some big cases. There was no way that it was 18 billion pages.

0:37:06 Andrew: Like, billion with a B. That's a huge number. That was not.

0:37:05 Thomas: I like the idea that like, it's that many pages, it would have taken 100 years to declassify, but it only, it didn't. How long did it take to produce all those pages? Like, it would have to take longer to produce pages than to decllassify them, wouldn't you think?

0:37:09 Andrew: Yeah. Yeah, you that number is like filing a lawsuit and my asking for a million billion dollars in damages. Right. Like it's it's just it's a preposterous number. Number, have estimated that there are probably 4,000 pages of 302s, right, of witness summaries, which would take, like, the Department of Justice, you know, the better part of a week to comb through, right? Assuming that it did not, you don't have a couple of lawyers on it working part time.

So Judge Walton ordered that the that the Department of Justice respond and and held a telephonic hearing on October 16th related to whether this was an order to declassify And as part of that, after that hearing where the lawyers for the Department of Justice basically gave equivocal answers, Judge Walton said, OK, guys, if if you're not going to answer my question, I'm going to rule on this without your input. Unless the president issues a response by or before 20th. Right. So Tuesday and chief of staff, Mark Meadows, put together a declaration. I will include it in the show notes because it is bizarre, but it is his declaration on behalf of Donald Trump. And it says, no, no. No, he definitely didn't mean to do that.

0:39:07 Andrew: Of course, it says that. Right. It says, yeah, it says the president indicated to me. Right. So. So a declaration is it's an affidavit. Right. It's Mark Meadows saying, I'm chief of staff. I talked to the president. The president told me his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents, Including the 302, the FD 302 reports of witness interviews prepared by the FBI in connection with the investigation conducted by special counsel Robert Mueller, the third. Then we have what they are. OK, so definitely wasn't that. Then Mark Meadows says, instead, the president's statements related to the authorization he had provided the attorney general to declassify documents as part of his ongoing review of intelligence activities related to the 2016 presidential election and certain related matters.

0:39:07 Thomas: Is this a federal takesies backsies, you

0:40:05 Andrew: The president's statements do not require altering any redactions to any record at issue in these or any other cases, including but not limited to any redaction taken pursuant to any discretionary FOIA exemptions. I swear I'm not lying under penalty of perjury, which, you know, I'll leave that to you to decide. That makes no No sense. The the idea that this was an instruction to Bill Barr regarding the 2016 presidential election is just not given Trump's tweets. And yeah,

0:40:41 Thomas: Think Trump might have been, might be lying here, or wow.

0:40:45 Andrew: I think also it shows the difficulty of being the lawyer because you're then left with, well, then what the hell did that mean? Right. And so, in fact, Leopold's counsel replied, Meadows Declaration filed today, that is October 20th, confirms that Trump's recent tweets announcing that he had fully authorized the total declassification of any and all documents were the president's unambiguous instructions for the declassification of all materials related to the Mueller investigation. This new declaration attests that a year and a half ago, when the president ordered Attorney General Barr to begin the declassification process, his order meant that the order should complete the total declassication of all records with no redactions. And then it goes and quotes some more Trump tweets. That's super clever, but that's also not present. Like it's just one of these, like, I kind of feel like the president had Mark Meadows issue a declaration in French and then, like, Leopold's counsel replied in German.

0:40:56 Thomas: So

0:41:53 Andrew: And we're like, well, obviously it means X. And I'm just sitting here as somebody who speaks neither of those languages going, trying to puzzle through what the English might be. But yeah, so, so that was the position that that BuzzFeed took. We are, and I will tell you that all we know is forthcoming, as of this morning, is that the emergency requests are going to be denied. Now, that is a high standard. The court, it says, will issue a written opinion forthwith. But sadly, that's going to come after we've recorded this show. But it means we are not going to get the 302s as a result of Trump's tweets. But, but I want to point out. So. Right. So that's bad.

0:42:39 Andrew: That's a loss. But by the same token, I want to point out, and and because I think it's, it's part of the pattern, particularly going forward. Right. Once our long national nightmare is hopefully over in 2021, it's people sort of doing the hard legwork on the ground of all of these different threads of where the Trump administration has just trampled over the law that build up. Right. Like that. This is, this is part of the resistance strategy. And, you know, yeah. So maybe we didn't get the unredacted Mueller report as a result of Trump's tweets. But we, we, we made a strong argument.

0:43:24 Andrew: And who knows sort of what the next development will be. Right. I wouldn't have thought that just responding to Trump's, you know, crazy coked out tweets would, you Know, would have gotten us this far. But but a federal judge required

0:43:43 Thomas: We're not gonna get this is not gonna work. Then, uh, and

0:43:45 Andrew: That certainly doesn't look like again, what we know is that the the emergency motions to immediately declassify are not going to be granted. That's not to say that that Judge Walton isn't teeing up, you know, further evidentiary hearings. And and and look, the real issue here is. On January 23rd, 2021, President Joe Biden will have the authority to declassify all of those materials. Right. That is unquestioned. Um, and then and then we will have significantly more evidence in an environment in which Republicans are, you know, you already see them running from the exits and trying to pretend, you know, Ben Sasse giving his little press conference and saying, well, you Know, I have always held the president accountable, except when it comes to voting against him, you know.

0:44:17 Thomas: Then we'll finally be able to impeach Donald Trump, yeah.

0:44:44 Andrew: Yeah.

0:44:39 Thomas: God so brave so brave yeah.

0:44:45 Andrew: But if but Republicans get wiped out in two weeks, you can damn well bet that they will be dying to engage in activities to prove that they were all secretly never Trumpers. So, you know.

0:44:59 Thomas: Gosh. Yes. I think so. I still think that a lot of their base, a lot of the same pressures will apply, like their base is still, you know, a consideration and the voters that are going to vote for them in a primary next time. Who knows? But yeah, no, I feel like there's not, there's no, well, I'll tell you this, there is zero actual loyalty to Trump among Republican lawmakers. I don't know. I mean, there are probably a few obscure ones. It's all convenience, and it will stop being convenient if we vote him out, the heck out, to To put it strongly.

0:45:32 Andrew: Yeah, absolutely. Yes. Mitt Romney and I are on separate fainting couches with your strident use of the word heck. But I think so.

0:45:44 Thomas: Actually accomplish this in time to get to some of these?

0:45:47 Andrew: Yeah. Let's talk super quickly about our wildcard segment. That

0:45:48 Thomas: Oh, my gosh. Wow. So We just saw this, was like, as we're going to record, you know, I think Democrats, tell me what you think here, but I think Democrats really did put their heads together and come up with a coherent, like, strategy that they all stuck to. I think they, because we got a bit of everything, we got the, like, you questioning in in a certain way, and then today we got the boycotting thing. I think they found a way to do a few different things that showed resistance, and today they boycotted. So why don't you tell us what happened there?

0:45:51 Andrew: Yeah.

0:46:22 Andrew: And I think this strategy was exactly correct, and I, I, I want to explain what it is and what happened and why it fits in with what I have been saying along, right? Which is, look, Republicans can cram through Amy Coney Barrett, but the more we win the narrative that all they've done is exercise naked political power, the easier it is to respond to the very troubled and concerned Republicans that we're going to hear from in February of 2021 when Joe Biden is considering expanding the federal judiciary.

0:47:04 Thomas: Yeah.

0:47:07 Andrew: You've got the president on tape, question one, answer one at debate one. Why is it that you can nominate and get through Amy Coney Barrett? Because I'm the president and we have a Republican Senate. So So what happened today? The Senate judiciary committee has standing rules. Those are adopted by the full Senate and require a two-thirds vote to change, right? Rule three governs quorums. And I'm going to read it to you. I'm going to the first two sentences of rule three, subsection one to you because super duper clear. So rule three one says seven members of the committee actually present shall constitute a quorum for the purpose of discussing business.

0:47:53 Thomas: Mm-hmm.

0:47:53 Andrew: So you only need seven members on the committee to talk about stuff. Nine members of the committee, including at least two members of the minority, shall constitute a quorum for the purpose of transacting business. In other words, if you want to do a thing, and by the way, advancing a nominee out of the Committee to the full Senate for approval for a vote up or down from the entire Senate is transacting business. That's doing a thing. You can't do that unless the committee is sitting in a quorum, which means there must be nine members present and two of them must be Democrats. There were zero Democrats present today. Now, next step, right?

0:48:40 Andrew: People were saying, well, does that mean that the Barrett nomination is void ab initio and we're going to... No, it doesn't mean any of that. It means that as soon as Mitch McConnell brings up Barrett for a vote, which could be as early as tomorrow as by the time you're hearing this, it certainly will be early next week, that there will be an objection made by Chuck Schumer that the nominee is not properly before us because it was not advanced out of the Senate Judiciary Committee by a quorum of those present. And then there will be an appeal to the decision of the chair, which requires a vote. 51 people. No, that's where we don't win. Right.

0:49:18 Thomas: And That's Where we win Now Now Okay. Dang.

0:49:22 Andrew: That's where 51 plus Republicans will all line up to say that two members of the minority does not mean two members Right. That the that the party of umpiring just calling balls and strikes plain language is going to read out a an obvious, plain, unambiguous requirement that you can't transact business entirely absent the minority party. And they're going to say, well, unless, you know, blah, blah. In an election season with a Supreme Court justice and there's a full moon and it's the end of October and right that they will lord on some, you know, Mitch McConnell isms to to draw an artificial distinction here. And again, we can't stop this now, but we're less than two weeks away from an election in which we can. And so the more that, you know, and I.

0:49:22 Thomas: Yeah. Yeah. Right. Mm hmm.

0:49:52 Thomas: Unless we feel like it. Yeah.

0:50:19 Thomas: Well, we can't still can't stop it. I mean, we can just expand the court behind her.

0:50:22 Andrew: Yeah, but. Right. We can build like this question will come up at the debate again tonight. And when Uncle Frank says, well, I won't show Biden answer about packing the court, be like, well. Well, why did Lindsey Graham advance a nominee out without following the rules? And the answer is because they could. So stop talking to me about norms. Start talking to be about power. You guys are cramming through as many judges as you can. And you know what? Joe Biden's going to cram through as much as he can in retaliation. You guys shouldn't have started this fight if you didn't want somebody to finish it. And that that's my answer to to Uncle Frank. And again, I have gotten, since reversing my position on constitutional hardball, a number of folks who liked calm Marquis of Queensberry rules, Andrew Torrez from 2017, have written in to say, you know, isn't this an endless escalation? Yeah, this is an endless escalation. This is we're absolutely going to have to fix this problem in the medium term. But we won't get there if if if we're not willing to to to blow up the rules. Right.

Because let's be explicit about this. Somebody asked me this question on on social media fairly recently. Every piece of legislation that a Biden administration is somehow able to pass will instantly be challenged in federal court where it now has, and I want to emphasize this to you,

0:50:24 Thomas: Right?

0:50:59 Thomas: Stern words.

0:51:55 Andrew: A 40% chance of being heard by somebody appointed by Donald Trump. Right. Not a 40% chance of being heard by a Republican, a 40% chance of being heard By a Trump appointee with an ultimate destination before a Supreme Court that is about to have five hardcore judicial activists on it and a rather conservative but pragmatically minded sixth vote. So, yeah, that's that's what's at stake is literally all of the legislation. And if you think about the signature legislative legislative accomplishments of the Obama administration, it's hard to get legislation passed. That's that's what I'll say. And unless you want that gutted by the Supreme Court, we've got to do something to fix this. And want to add one more scary thing to sort of walk us out, and that is that there are numerous election cases going up to the Supreme Court right now.

0:52:05 Thomas: Jeez.

0:53:01 Andrew: And the Supreme Court, it presently exists, is operating under the shame John Roberts rules. Right. And so where that has worked. Right, for example.

0:53:15 Thomas: Well that's meant to 4-4. Right? We saw that with Pennsylvania and it's a horrible sign.

0:53:16 Andrew: Yeah. Right. And so it it it means that if you've won at the state court level and you persuade John Roberts not to get involved, then maybe you can get a narrow 4-4 in which the lower decision stands. However, just today or just yesterday, the Supreme Court granted a stay 5-3 in a case called Merrill versus People First of Alabama that, yep, yep.

0:53:52 Thomas: Yeah, about drive-in voting or whatever. Drive by, drive through voting.

0:53:58 Andrew: Curbside pickup of ballots. Yep. And so, well, well worse than that. Right. Right. The district court. Right. And remember, one of the things we always say on Opening Arguments, trial courts decide the facts. Right. So, again, reading from Sotomayor's dissent here, following a lengthy trial and resting on an extensive record, the district court found, among other things, that the Alabama Secretary of State's decision to ban curbside voting violates the Americans with Disabilities Act by forcing voters with disabilities, for whom COVID-19 is disproportionately likely to be fatal, to risk unnecessary exposure to the virus if they wish to vote in person. The district court thus enjoined the secretary's ban, thus allowing counties that are ready to adopt curbside voting to do so. And then

0:53:59 Thomas: Curbside. Yeah? Yeah. 'Cause it definitely makes sense to not allow that during a pandemic. It's great. Job court. Awesome. Oh.

0:54:52 Andrew: With the kind of restraint that has made Justice Sotomayor your and my favorite sitting Supreme Court justice.

0:54:58 Thomas: No.

0:54:58 Andrew: She says, she

0:54:58 Thomas: For me, it's not the restraint. I get rid of the restraint for me. It's just that she has the best positions on everything. Nope.

0:55:04 Andrew: I would not upset the district court's record based reasoned, and narrowly tailored judgment, which the Court of Appeals for the 11th Circuit lets stand. So there's a lot packed into that that little sentence. Right. And two major and things that are packed into it are John Roberts could have helped us here. Right? Right. This is the Supreme Court specifically granted a stay of that district court's injunction in order to allow Alabama to to to prevent counties from allowing you to vote curbside. And the Supreme Court substituted, in in in doing so, effectively substituted its judgment over the facts to above a trial court's judgment on the facts.

0:55:52 Andrew: And aren't you guys enormous clown horning hypocrites? And yes, yes, they are. So, look, are narrowly winning a handful of the most egregious cases, but we lost Alabama in a situation where all John Roberts would have had to have done was to say, yeah, I'm not joining an application to stay a district court's well-considered injunction entered on the merits after a lengthy trial in which the district court viewed the evidence. We're going to defer to the discretion of the court. Nope. The Supreme Court said, no, no, we're we're we're going to grant, we're going to stay that, effect, you know, pending disposition of the appeal.

0:56:39 Andrew: Right. Which, you know, the elections in less than two weeks, pending disposition of the repeal means the case will be mooted because the election will occur long before this appeal is resolved. So that's that's what we're. And as early as, I don't know, a week from now, that may, that may now be all of those cases, maybe five for the other way or six, three the other way. No way to sugarcoat that.

0:57:08 Thomas: There's only one course of action, as we've said so many times.

0:57:13 Andrew: In numbers too big for them to manipulate, because they are manipulating them. And we see it right now that

0:57:19 Thomas: And We have to win by a margin in the Senate high enough to, you know, like what if Joe Mansion just decides we're not going to do any court packing? Like, I don't, I'm, I'm worried, but we have have to do. All we can do right now is vote. Get out the vote. Remind your friends to vote. Do everything you can. Volunteer, call, text and vote.

0:57:30 Andrew: Yeah. And show up to the Opening Arguments live stream.

0:57:40 Thomas: Oh, that's the number one thing that will definitely help. Now we can at least all cope together. That will be a drinking live stream. There's no no ifs, ands or buts around that. I'll be. Yeah. OK, so that's that you got through it all, Andrew. Congratulations. Nice job.

0:57:45 Andrew: Oh. Yeah. Oh. Yeah. Thank you.

0:57:58 Clip: And thank you, Let's go!

0:57:59 Thomas: And now it's time to thank our new patrons on patreon.com/law and they're enjoying all the goodies we already told you about in beginning of the show and the early episodes all that stuff Andrew why don't you start us off all

0:57:59 Andrew: Why thank you to Robert Franklin, Bradley Adams, Jerry Stephens, Matt Carl, Jennifer Hunt, Courtney Hummel, Eric Nelson, Emil Sauer Lynge, Zachary Lindon Thomas. Thank you too. What the heck is up with the moon? Love that. And Ana Cecilia Cano. Thomas, take it away.

0:58:28 Thomas: That almost was like the Will Ferrell Harry Carey thing what the heck is up with the moon Is the moon made out of cheese?

0:58:41 Andrew: Well. If you were a hot dog, would you eat yourself? I sure would. Slather myself in mustard. I'd be delicious. Oh.

0:58:41 Thomas: Yeah. Such a funny thing.

0:58:52 Andrew: It's such, that's such a good bit.

0:58:53 Thomas: I love this. What's your favorite planet? Mine's the sun.

0:58:57 Andrew: Because it's so hot.

0:58:58 Thomas: It's like the king of planets. All right. Mike S., Joe Magestro, ivan elsa, Randi Cox. And now, a pause while I caress Andrew's face. Oh, I would if I could. Cynthia Montgomery, David Leedle, Sun, Ben Parsonage, and John Carney. Thank you so much, new patrons. We love you so very much.

0:58:58 Andrew: Yeah. Oh. God. God.

0:59:21 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:27 Thomas: It is time for T3BE, uh, the easiest quiz that ever existed. Apparently just can't stop nailing these. I'm just gonna get more and more arrogant until I get one wrong, and then I'll I'll go the other way.

0:59:40 Andrew: Look uh it ain't bragging if you can back it up right Right. So. So let's do it, Thomas.

0:59:44 Thomas: I'm sure I can. Okay.

0:59:45 Andrew: By the way, this is question 199 overall. So a retailer brought a federal diversity action against a wholesaler alleging breach of contract and fraudulent misrepresentation. After the parties presented their evidence at trial, the court instructed the jury on the law. Law. Neither party filed a motion for judgment as a matter of law before the case went to the jury. The jury found for the retailer on both claims. After the court entered judgment on the verdict, the wholesaler moved for a new trial and for judgment is a matter-of-law, arguing that the evidence was insufficient to support the jury verdict on either claim.

The court acknowledged that there had been problems with some of the evidence but denied the motions. The wholesaler appealed challenging the sufficiency of the evidence. Should the appellate court consider the wholesaler's challenge? A. No, because a determination of the sufficiency of the evidence is solely within the jury's province. B. No, because the wholesaler did not raise the sufficiency-of-the-evidence issue in a motion for judgment as a matter of law before the case went to the jury. C. Yes, because the challenge was raised and ruled on by the trial court before the wholesaler filed the appeal. Or D, yes, because, as the trial court acknowledged, the wholesaler has strong arguments on the challenge.

0:59:57 Thomas: Huh. Wow.

1:01:08 Thomas: Okay, well, this will will be a good one for me to get wrong and ruin my confidence. I thought this was going to be like, you know, diversity jurisdiction, you know what? I, this is okay, this is really interesting. Lots going on here. Oh, there's a lot in here that I don't think matters, like a lot of stuff that I thought was going to matter. This is one of those ones that's trying to set, diligent law students like myself off in multi directions, you know, like I've ever did on a, on a wild goose chase. Okay, so here's, here's what happened. Retailer brought federal, doesn't even matter, I don't think, uh, action against a wholesaler and a breach of contract. They don't, nobody filed for a motion for judgment, which they always do. I, all the questions always involve that, but nobody filed a motion. Before the case went to the jury. So that's one aspect there. Like, did the party need to file this before the case went to jury the first time?

1:02:02 Thomas: I think that's going to be one of the possible answers, I'm guessing. So the jury found for the retailer. And then after that, the wholesaler moved for a new trial and for judgment as a matter of law, arguing that the evidence was insufficient to support the jury verdict. And then we get this. This is interesting. Court acknowledged that there had been problems with some of the evidence, but it denied the motion.

So then the wholesaler appeals again, I guess, the appeal challenging the sufficiency of the evidence. That's interesting. So what level, how many appeals do you get? I thought you only got one. Moved. So, oh, this is a motion, I think. So the wholesale moved. Okay. So that's within the first trial. The wholesaler moves for a new trial after the judgment, I think. Denied the motion. So that judge is like, no, sorry, there were problems, but no, deny the motion, and then we get the appeal challenging sufficiency of the evidence. Is that something you can appeal? Sufficiency of evidence? Like, what? That doesn't, maybe I'm wrong, but that seems like not a thing that you could even appeal. So there we get to the question. Should the appellate court consider the wholesaler's challenge? A, no, because determination of sufficiency of the evidence is solely within the jury's providence. That's what I would think. Like I said, providence, province. That's What I Would Think would be A. That's like the no-nonsense answer. It really feels like appeal because the evidence wasn't good enough is just, that's something the jury would decide, I would Think.

1:03:37 Thomas: Sufficiency of the Evidence, I don't know about that. That. B, no, because the wholesaler did not raise the sufficiency of the evidence issue in a motion for judgment as a matter of law before the case went to jury. That also seems like a possibility. So that would be the first thing that I mentioned. And so I guess another trick of this question would be like, if I'm hypothetically between these two, no answers, which would be the better no answer. And I still, I still think it would be A. I could see some weird, you know, if it's a really trick question, I guess maybe B is a possibility, but I don't know. It still seems like A is just so clear. Like, no, you can't challenge. You can't appeal based on the sufficiency of the evidence. That seems crazy to me. Okay. C, yes, because the challenge was raised and ruled on by a trial court before the wholesaler filed the appeal.

1:04:24 Thomas: That's interesting. So there's that saying, because they brought the motion during that trial and it was ruled on. Oh, um, evidence was insufficient. Gosh, that that's a possibility. See, yes, because the challenge was raised and ruled on by the trial court before the wholesaler filed. So it's saying, should the appellate court consider the wholesaler's challenge? So it's not even, that's interesting. So it's not even saying like should the appellant court agree with it or grant it or whatever. It's just saying should it even consider it. Oh, now I, I could see a strong argument for C, maybe, because of that. And D, yes, because as the trial court acknowledged, the wholesaler has strong arguments on the challenge.

1:05:13 Thomas: Gosh, I've twisted myself into a pretzel on this one. This is really hard. So my first instinct was A, because it doesn't make make any sense. Like sufficiency of evidence seems like whatever, but I see a strong, I think I'm between A and C, um, because C was yes, because the challenge was raised and ruled on by the trial court, that that just something about that, the fact that like they did raise it and the and it was ruled on in the first trial, I feel like that does give you the right to appeal that. And the question, question isn't, as I pointed out, it doesn't seem to be like, should should he, should the wholesaler win or anything. It's just, should the appellate court consider the wholesaler's challenge, which you would think would be a pretty low bar. Oh my gosh. So my, my gut answer was A and, and now I'm almost twisted into C, but good.

1:06:03 Thomas: You know, I'm going to, I'm to dance with the horse that brung me. I don't know. I'm going to, whatever the phrase is, I think there's, it could be maybe C, I think I'm gonna go with the strategy that I've used this whole time, and maybe it'll be wrong one out of however many times, but I'm gonna go with A, it's the obvious answer. I just don't, I don't see how you can appeal based on sufficiency of evidence. I feel like that's, that's our, that's already done. The jury did it, I, it just seems like it's solely within the jury's province as the question, as the answer states. So that's A, final answer, and between A and C, maybe this will be the one that I blow, but I'm going go with the obvious straightforward answer and play the odds.

1:06:42 Andrew: Right, and if you want to play the odds along with Thomas, you know how to do that. Just share it this episode on social media. Include the hashtag T3BE. Include your answer, your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:06:56 Thomas: And that's our show. We got through it all, Andrew. Oddly enough, the bar question took the longest of anything. That was a hard one. But thanks so much for listening. We'll see you Monday.

1:07:07 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.

1:07:41 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.