OA448: Secret Expert Witness "Spyder" is Dude Named Josh

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 448. I am Thomas. That's Andrew's dog. And here, Andrew's also there, I think. How's it going,

0:01:29 Andrew: I believe I am also here, so yeah, you know, it's a little holiday, we're all at home, and no one's going anywhere ambiance, so.

0:01:31 Thomas: Andrew and dog? Yeah. Yeah, normally the dogs at work, but not today. You know, also 448, nice, nice good number. 448 feels like it's divisible by all kinds of stuff. Just one of those good, yeah, I feel better when it's a good number like that. I don't know what it is, just mentally, completely irrational.

0:01:56 Andrew: So you're an even guy, is what you're saying.

0:02:00 Thomas: I just like, you know, larger numbers that are divisible by lots of stuff, just, you

0:02:06 Andrew: You're anti-prime, I can dig it.

0:02:09 Thomas: Well, no, a prime is also cool. You know, it's the middle.

0:02:11 Andrew: Yeah, okay, all right. As long as we're, you know, as Optimist Prime, I have to, you now.

0:02:13 Thomas: Yeah. Oh, yeah, yeah. Good way to go.

0:02:20 Andrew: I'm first among the Primes, so there we go.

0:02:20 Thomas: Good transition. Speaking of Optimus Prime, Andrew has set a very lofty goal for us for our fundraiser on Sunday. I can't wait. Guess what it's called? It's called Grab'em by the Gavel because we got to wrench that last horcrux from Mitch McConnell's decrepit hand. And then I think Ash after that, pretty sure. He'll just...

0:02:24 Andrew: All right. Yep. Has anyone ever tried spilling a small quantity of water on Mitch McConnell? But, yeah.

0:02:50 Thomas: I think he turned, we take the gavel, he turns to dust and then, but I think legally they still have to like have him vote on stuff. You know what I mean? Like they'll like, what's your vote? Mitch McConnell's pile of dust. And then I don't know how the voting, we all have to tell, you know what? You're the lawyer. I don't why I'm trying to do the law part. You're, lawyer, you tell me how the vampire law works.

0:03:08 Andrew: Well, you know, unintended transition, but I have... On our whiteboard, it's not going to be next Tuesday's show because that's going to part two of our ongoing debate with Professor Randall Eisen. Part two is even better than part one. It's really, really good. That's the way sequels go. It is the Empire Strikes Back of friendly debates with professors of law. So it's next Tuesday. It's not going to be the Tuesday after that. We have a fantastic show. But I think the Tuesday, after that, right, the first Tuesday in January, everybody has been sending me this, like, article of, you know, how Kamala Harris can wrest power from Mitch McConnell. And it

0:03:27 Thomas: Yeah, not usually, but sure. Yeah. Ooh, good.

0:04:05 Thomas: Oh,

0:04:05 Andrew: I have been I'm not kidding. I've read. 289 separate cases interpreting the rules of the Senate. I have read every published case on what being president of the senate means. It's a huge undertaking. I am really, really excited. Believe me, that research is not going to waste. Another one of those one weird tricky things is coming up. It's coming up soon.

0:04:31 Thomas: Okay.

0:04:38 Andrew: A lot of people have asked about it, and there we go. Kind

0:04:38 Thomas: I mean, just without knowing anything about it, seems weird that the party with fewer votes would be able to take control of the Senate. Doesn't make any sense to me, but okay. Yeah, probably not how that works, but that's okay. Can't wait for that deep dive. Anyway, fundraiser Sunday, the 20th, coming up. Grab 'em by the Gavel. The lineup is finalized. The link is out. It's in the show notes. It shared on social media. It is going to be so much fun. I can't believe the lineup we were able to get, Andrew.

0:04:46 Andrew: Of seems weird, doesn't it? Yeah, so... Yep.

0:05:07 Thomas: It's an important

0:05:07 Andrew: Yeah, no, we have a fantastic lineup of podcasters. And, you know, some folks have said, well, you there were people who aren't there from the first time. It's scheduling and it's opportunity for some folks who didn't get invited the first-time around to participate. But here's what we're doing. First, We're going to lead it off at four o'clock and we are going to be joined by Jamil Favors out of the Warnock campaign. He's one of their campaign surrogates. He is the voter protection director for the Democratic Senate Campaign Committee. So we're going talk to him. Yeah, yeah.

0:05:42 Thomas: Job, I'd say. Pretty important job.

0:05:45 Andrew: We're going to talk to him about what he's seeing on the ground, about historical voter suppression efforts in Georgia, about voting in numbers too big to manipulate. I'm really, really excited. I love the fact for this fundraiser. I just can't emphasize strongly enough. I've been talking to the Warnock campaign every day. And as you might imagine, they're real busy right now. But they they saw.

0:06:13 Thomas: They've been super professional and kind and helpful and amazing.

0:06:16 Andrew: Oh, yeah. They saw what we did, and they have been working with us to make sure that our voices are heard in their campaign and to do what they can to support us. So we're going to have that guest. We're going have a bunch of surprises. We going lead off at 4 o'clock. And if you listen to the show, you know it's all about bragging rights. Now, I think all. I think the entire total really belongs to us.

0:06:43 Thomas: Yeah.

0:06:44 Andrew: But particularly that first half an hour, again, same thing we said last time.

0:06:47 Thomas: Yeah, if we win, we'll say that's our half hour. If we don't win, then that was for our guest. Yeah I don't know.

0:06:50 Andrew: Oh, it was just, yeah, warming up. Right. Yeah. You know,

0:06:59 Thomas: We're not competing, it's fine. Unless we win.

0:06:59 Andrew: It it it. So it's going to be it. It's going be a three hour live broadcast. I'm to get through our other guests. But even if you can't, this is what I want to say. We have lost students. We have people who have lost their jobs due to COVID. This is the same pitch that I give in talking about supporting us on Patreon. If you're hurting right now, take care of yourself, take care of your family, and show up for the live stream. You're going to get basically an hour, you're going get an episode of OA to lead off, and then you're gonna get two and a half hours with some of your favorite podcasters and some of the best podcassters who are out there. So just come to the party. This is the rare political fundraiser where you can come and mingle with all the guests and no one's gonna shake you down Before you Leave.

0:07:51 Thomas: Well, I'm going to try to sell you on a timeshare, but other than that. No, but also you can always phone bank, folks. If you don't feel like you have the resources to donate or anything, that's totally understandable. But if you happen to have spare time and can squeeze it in, you can phone bank. Every little bit helps.

0:07:54 Andrew: Well, that too. It is question number two that I intend to ask Jamil is how folks can help who maybe can't a donation during this. So we're going to hear it straight from the campaign. It's going to be a lot of fun.

0:08:22 Thomas: Oh, by the way, I want to throw out a quick shout out. We have a few matching donors. And we sent out a call on the Patreon feed. Just in case there's anybody listening here who wants to be a matching donor, either anonymous or with credit, however you want, contact us and email us. We would love to take you up on that. So thanks so much to the individuals who have already done that. We're really excited to have you.

0:08:48 Andrew: Yeah, we are already almost at $10,000 in matching donations, which is just incredible. Yeah, uh, we can do it anonymously. We can shower you with praise. Both are really, really good options. And send that to, uh... Send me an email, patorrez at patorrez.com. So, we're gonna lead it off. We're going to be followed by OhNoRossandCarrie. I love that. We teamed up with Carrie Poppy for our LA live show, and I'm super excited to get them on and have them be a part of this little fundraiser. Five o'clock. I got to tell you, I'm a little bit worried about this one in terms of winning the contest.

0:08:51 Thomas: Wow. Sure.

0:09:29 Thomas: No competition. Yeah.

0:09:30 Andrew: Yeah, we got Mueller, she wrote.

0:09:32 Thomas: That's going to be juggernaut.

0:09:35 Andrew: AG's been talking a lot of smack online, so yeah, so they're gonna be on at five o'clock, hopefully, we'll have some technical difficulties.

0:09:39 Thomas: Wow. I feel like she can back it up, you know? That's a person who, when she talks crap, I'd be like, yeah, believe you. You know? Like,

0:09:51 Andrew: Yeah, we're going to give her some good competition, though, because immediately after that, 5:30, we have the guys from Ice Cream Social, our buddy Matt Donnelly and Mattingly, his partner, and we've had Matt on the show a couple of times, and I think he's going to sit in and do a lot of movies with us. Really, really funny guy and talented magician, just all around good guy. And if you're not listening to Ice Cream Social, a funny you show. They do good stuff. So that's the 5:30 block. 6 o'clock, I'm a little worried about this one too. We got our buddy Devin Stone, the Legal Eagle, off of YouTube, you A little hurtful. You know, we're not out there hijacking his YouTube channel, but, you know, it's all for a good cause.

0:10:41 Thomas: Well, in fairness, we're doing this on YouTube, so... We're kind of going to his turf, really.

0:10:44 Andrew: Oh, oh, okay. Well, then I guess we are. Then I... All right. Well then I take back half those things that I said.

0:10:54 Andrew: And then the cleanup batter, even though it's sixth in the roster, but the batting last and always a formidable juggernaut, our friends, Noah, Heath, and Eli over at Puzzle in a Thunderstorm are on at 6.30 PM. And they just narrowly squeaked past us last time by a two to one margin.

0:11:21 Thomas: Yeah, two is not a big number, so that sounds close. Yeah. Two to one margin.

0:11:23 Andrew: Two is the smallest whole integer that could have possibly beaten us. So, you know, that's not that impressive.

0:11:29 Thomas: Yeah, there's no way they can repeat their performance though. That's impossible.

0:11:34 Andrew: No, obviously, obviously. So, um, so there we go. And, and look, if you can't be, so this is Sunday, this Sunday, the 20th from four to seven Eastern, you can figure it out from your time zone. If you can be there during that time, um. You can still head over the links in the show notes. It's secure.actblue.com right? Slash donate slash opening arguments. Couldn't be easier. You see the official campaign logos on the right.

0:11:50 Thomas: Ooh, yeah, it's all through ActBlue, mind you. This is all, all the money is split between the two campaigns.

0:12:05 Andrew: Yeah. Yep. I love that. Like literally zero overhead. 100% of what we're doing is going directly to the campaigns. That's the best kind of percent. So, yeah, and as of recording this, right, we're a couple of days out, we've already had $1,425 in donations on that link. We are, it's live.

0:12:33 Thomas: Wait, what? Oh, I didn't even notice

0:12:36 Andrew: You can, yeah.

0:12:36 Thomas: That. It's not even, okay. Well,

0:12:38 Andrew: You could ship in already.

0:12:39 Thomas: So that counts for us, right? That goes obviously for our hour.

0:12:41 Andrew: Obviously, everything counts for us, so.

0:12:46 Thomas: We're going to find some, you know, I was an accountant. I will find a way to make sure we win.

0:12:52 Andrew: There you go.

0:12:53 Thomas: Sorry, I shouldn't have said that on air. I'm going to cut that out.

0:12:53 Andrew: You heard it here first. Yeah, right. You said the quiet part loud.

0:12:57 Thomas: Yeah, sorry about that.

0:12:58 Andrew: No, I am super duper excited about that. And, it's you a theme that we've said, I said a lot right before the 2018 elections. And we said it again right before 2020 elections. I look back at what we did in 2016. And you know we had a really big episode that was shared out in a number of places on Hillary Clinton's damned emails. That was episode 13. there was some more that we could have done to have tried to have elected Hillary Clinton in 2016. I really, really regret that. I know folks have kind of asked, like, well, it seems like you're, you know, hitting on this a lot. We are because it

0:13:39 Thomas: Oh, it's so important. It is so important to grab the gavel.

0:13:41 Andrew: Got to do everything we can. So,

0:13:44 Thomas: Yeah. I mean, it just, if we haven't made that point already, I mean this, these two runoffs are immensely important. I I mean it's as important as the, as the election was. So let's do it, everybody.

0:13:44 Andrew: Yeah.

0:13:54 Andrew: And I couldn't have said it better myself.

0:13:57 Thomas: All right, well, after that extended pitch, do we have time for an episode? Let's find out.

0:14:01 Andrew: Nope, that's it. All right. T3BE. Here we go.

0:14:04 Clip: Joe Biden will become the 46th president of the United States. This election is not over. It's over, beast. This is a major fraud in our nation. If you count the legal votes, I easily win. You lose. It's Over Beast.

0:14:30 Thomas: So, Andrew, some people of possibly bad faith, we'll see, have been wondering if there's a difference between the lawsuits that Stacey Abrams might have filed in the wake of her very questionable loss in 2018 in Georgia and the ones that Trump is filing. Some people might say, well, hey, isn't this a double standard? If those lawsuits were valid then, if challenging that election was valid then... Why is it not valid to challenge the election the way Trump is doing? I hope I set that up with the straightest faces I could manage. So what is your answer to that?

0:15:05 Andrew: Yeah, so I thought we might dive into an anatomy of how you file election lawsuits and maybe let our listeners draw their own conclusions. Although, you know, I think we'll point them in the right direction.

0:15:25 Andrew: This is a story that broke this week that is delightful, that involves the key expert witness put forth by Sidney Powell in four separate lawsuits in four states challenging, quote, voter fraud in the presidential election. And that was a witness called Spider, sometimes spelled with a Y, sometimes with an I. I got a sense of how that happened as we go through this. So you may or may not have seen that Spider was unmasked by the Washington Post.

0:16:04 Andrew: I will cut ahead to how that unmasking happened.

0:16:03 Thomas: What a thrilling news event. I can't wait to find out who it was.

0:16:11 Andrew: A guy named Joshua Merritt. The way in which the Washington Post was able to break this story, the incredible sleuthing that they did, and really, this is something we could have done, and I'm sad that we weren't the first ones onto the docket. Here's what happened, okay? When you file electronically, You title the document whatever you want, but you actually have to upload the PDF into the system, right? So Spider's affidavit was entitled Expert Affidavits of Witness, quote, Spider. And then there was the justification for why he was kept anonymous, which was, quote to protect him from an established pattern of witness and attorney harassment and coercion, right.

0:16:59 Thomas: Yeah, right. We all know it was because he wanted to use a cool name like Spider.

0:17:03 Andrew: Yeah. Spider with a Y and maybe a silent X on the end of it.

0:17:08 Thomas: Spider sounds so much better as a witness than Joshua. Well, Josh told me that it was all rigged. No, Spider told me.

0:17:11 Andrew: Then Josh, yeah. Right. So here's the thing. You also have to upload the PDF file, right? And so it was all, everything was redacted and he was Spider and it was entitled, but the PDF. File was saved, declarationofjoshuamerritt.pdf. And so the Washington Post called him up and he said, yeah, okay, that's me. So I

0:17:42 Thomas: Wow. Amazing that that plot was foiled. I can't even believe it.

0:17:50 Andrew: Want to explain the significance of what's going on here because in all four lawsuits, The defendant states moved. They filed a motion in limine to exclude Spider's testimony as expert witness testimony. And I'm going to explain why. And this kind of got some pushback among right wing sources of like, oh, yeah, you can't handle the truth. Right. But but here's what it was based on. And we're about to see 100 percent why it was correct to move to exclude Joshua Merritt. Spider's testimony. So first, ordinarily, as show listeners know, a witness cannot testify as to their opinion.

0:18:37 Andrew: They can testify as their facts. And I know, before the pettants start coming after me with Rule 701 lay opinion, that has to do with the fact that there are observable facts that are arguably opinion, right? Like, oh, it was hot outside that day, right, stuff like that. But in general, you can't say, yeah, I looked at those scratch marks and it definitely looked like a burglar had been hacking at it with a crowbar, right? If you want to introduce that testimony, what you do is you put on a fact witness to say, I observed that the safe had scratch marks on it. You put up a photo. They say, were these the scratch marks? And your fact witness says, yes, they were. And then you say no further questions and then you put on Dr. Thomas Smith. You are.

0:19:25 Thomas: Scratch doctor.

0:19:26 Andrew: Yeah, you're you are an expert. You've been.

0:19:28 Thomas: Dr. Thomas.

0:19:30 Andrew: Nice. Yeah. Back to 1985. That's outstanding. So, yeah, then we put on Thomas Smith. What are you? I am a locksmith. I have been working with safes for 30 years. And do you recognize this safe? I do indeed. It's the Lockmaster 5000.

0:19:50 Andrew: In your experience, in your expert opinion, how do people try and break into Lockmaster 500? Well, you know, they use a crowbar. And what happens if you use a Crowbar? It produces long running scratches. Scratches like this? Yes. So in your Expert Opinion then, Dr. Smith, or Mr. Smith. This safe looks like somebody tried to break into it with a crow bar. Yes. Right. So that's how you get in expert testimony. And as you might imagine, because the expert is drawing a conclusion for the jury, the Supreme Court has said that the law has a, quote, gatekeeping function, right? You don't want to let just anybody come in and offer expert testimony because that would get super duper confusing.

0:20:34 Thomas: Yeah.

0:20:34 Andrew: And And the gatekeeping function is defined by Rule 702 of the Federal Rules of Evidence. It says, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if A, their scientific, technical, or other specialized knowledge will help the trier of fact understand evidence or determine a fact and issue. B, the testimony is based on sufficient facts or data. C, the testimonies the product of reliable principles and methods. And D, the expert has reliably applied the principles and method to the facts of this case. And the reason I made you a safe-cracking expert is because that specialized knowledge is really important, right?

0:21:20 Andrew: Like, an expert witness doesn't just have to be a PhD in their field, right, you can be, yeah, I've been working on safes for 30 years, right. Yeah, I started in high school. Do you have a high school degree? No, I don't, but I know everything there is to know about safes.

0:21:36 Thomas: Could they call in, like, the character that's like the best thief, like the cat burglar who's like, yeah, I break into all this. Been doing it since I was a kid. Could they grab him from prison, by the way, like he comes in in the chains? He's doing time for they finally nabbed him, but he's gonna testify as an expert witness, but then it's all a con. It's heist because he somehow used. Anyway, no, no, I'll write the movie on my own time.

0:21:41 Andrew: Yeah. Yeah! This Yeah, you could do all that. Well, look, I think this scene has already been done to perfection in My Cousin Vinny. This is Marisa Tomei in as the automobile expert to talk about the trends.

0:22:02 Thomas: Probably.

0:22:13 Andrew: Notice, however, and we could talk a little bit about the Daubert standard and how the scientific method is kind of built into prong C and some of the other touchstones that courts use, but none of that was coming into play in the case of Spider here. What came into play was we can't evaluate the credentials of an anonymous expert witness. And, right, no kidding. And you know why it's important to evaluate the credentials of an anonymous witness? Because somebody like Sidney Powell might in fact lie about the credentials an expert witness. So, when we look at Spider's Affidavit, Spider's affidavits in paragraph 2 says, I was an electronic intelligence analyst. Under the 305th military intelligence with experience gathering SAM, surface to air missile, missile system electronic intelligence.

0:22:39 Thomas: Yeah no friggin kidding.

0:23:18 Thomas: Oh,

0:23:19 Andrew: Well, but that sounds super impressive with respect to gathering intelligence, right? And as you point out, yeah.

0:23:19 Thomas: That sounds really applicable to voting, I guess. But like, do they think that Biden stole the election via missiles? What's the... So,

0:23:34 Andrew: Well, here's what they do think. Here's what Spider's opinion says. That's a great question. Paragraph 21 says, in my professional opinion, this affidavit, meaning his testimony, presents unambiguous evidence that Dominion Voter Systems and Edison Research have been accessible and were certainly compromised by rogue actors such as Iran and China. That's a very weird description, but by using servers and employees connected with rogue actors and hostile foreign influences combined with numerous easily discoverable leaked credentials, these organizations neglectfully allowed foreign adversaries to access data and intentionally provided access to their infrastructure in order to So his

0:24:36 Thomas: You know, let me practice and I'll try the impeachment stuff of impeaching the witness, you be the witness. So You're a military intelligence expert, right? What did you name the PDF of the thing that you submitted?

0:24:40 Andrew: Correct. Yes.

0:24:51 Thomas: I rest my case. I don't even, that's it. End of questioning.

0:24:54 Andrew: Right, so reasonable inference. I am an expert in collecting military intelligence, and I have used that expertise to ascertain the fingerprints of foreign influence on these voting machines and systems. Except... Spider is not an electronic intelligence analyst. He's auto mechanic.

0:25:20 Andrew: Records show that Merritt is an Army veteran and that he enrolled in a training program at the 305th Military Intelligence Battalion, the unit he cites in his declaration. But he never completed the entry-level training course, according to Meredith Mingledorf, a spokeswoman for the U.S. Army Intelligence Center of Excellence, which includes the battalion. He kept washing out of courses, said Mingledorf. He's not an intelligence analyst.

0:25:53 Andrew: Merritt maintained that he graduated from the intelligence training program, but even by his own account, he was only a trainee with the 305th at Fort Huachuca in Arizona and for just seven months more than 15 years ago. His separation papers make no mention of intelligence training. They show that he spent the bulk of his decade in the army as a wheeled vehicle mechanic, an auto mechanic. He deployed to the wars in Iraq and Afghanistan where he worked in security and route clearance. And so not cyber security, right? Like where he kept the roads safe. And look. I want to cut away here. We have lots of veteran listeners. If you served in Iraq and Afghanistan, you were exposed to the kind of dangers that I as a podcaster have.

0:26:41 Andrew: Thank you for your service. I'm not downplaying the role of mechanics in Kabul.

0:26:51 Andrew: That was seriously dangerous. Those are really, really important. It does not qualify you as an intelligence analyst. That's what I'm making fun of. So, honorably discharged in 2013, and then just apparently started lying.

0:27:04 Thomas: That's the line on his resume? Like, from here I did lying, I

0:27:07 Andrew: Well, Kind of. Merritt, quote, acknowledged that the Declaration's description of his work as an electronic intelligence analyst under 305th Military Intelligence is misleading. He said it should have made clear that his time in the 305 was as a student, not as a working intelligence expert. He blamed clerks for Sidney Powell's legal team, who he said wrote the sentence. Of course, you are required to read and sign under penalties of perjury that your affidavit is true. And he said, "Well, I had not read it carefully before signing my name." That's a real legal issue sometimes, but it is, it's really, really important, you know, as somebody that your lawyer typically will write out your affidae for you because the lawyer wants you to express the facts and opinions in the way that is most helpful for the case.

0:28:03 Andrew: But It is your lawyer's job to communicate with you regarding that affidavit, and it is your job as a potential witness to read it over and push back and say, hey, the line, because literally the line above your signature says, I solemnly swear and affirm under penalties of perjury that the foregoing is true and correct. In my experience, my witnesses take that seriously, and I take it seriously before I have them stick their names on stuff. So, in any event, more? Can I talk about the 305th Military Intelligence Battalion at Fort Huachuca?

0:28:41 Thomas: Well, you're the one who's in the A segment, so you tell me.

0:28:44 Andrew: Okay, well then, good. Then I will. QAnon supporters believe that the unit has determined that China and Iran manipulated the U.S. vote. In late November, Thomas McInerney, retired Lieutenant General in the Air Force, Force, said that President Trump and Sidney Powell have, quote, got the 305th Military Intelligence Battalion working with them. And that quote, the Kraken is the 301 military intelligence battalion.

0:28:47 Thomas: The

0:29:16 Andrew: Right. Well, remember Sidney Paul saying, oh, oh yeah.

0:29:14 Thomas: Kraken? Hold on. Do you pronounce it Kraken? Now, this is big news. Stop the show. Kraken.

0:29:21 Andrew: All right. Fine.

0:29:23 Thomas: Release the Kraken?! Am I... Am I wrong, everybody?

0:29:25 Andrew: I read a lot of mythology before Release the Kraken became a big thing. Will, I don't know. I'm not willing to die on the Hill of Kraken, but for

0:29:34 Thomas: Okay. Look, I took a lot. I took A LOT of crap for my pronunciation of thesaurus, which I agree I deserve, but this feels worse, and I'm just gonna leave that there.

0:29:40 Andrew: Thesaurus. All Okay. Well, we'll see. We'll see that right into the show.

0:29:48 Thomas: Although it would be a good Godzilla, like Thesaurus versus Kraken. Like that would be good. You know, they have a big battle on the streets or whatever.

0:29:56 Andrew: Yep. All. So in any event, the Kraken is the 305th Military Intelligence Battalion. Here's what the Army representative told the Post, quote, So, uh...

0:30:27 Thomas: Wow. That's what you call impeaching a witness.

0:30:29 Andrew: That's pretty brutal. And the question that folks have asked is, what can be done about this? And the answer, really an actual true answer, right? Sidney Powell is not going to be disbarred over this, but I think she will.

0:30:46 Thomas: What? How? What? Hold on. Don't bury the lead. What do you mean? How could you not be disbarred over this? What is the point of the bar? God. Sorry, but like what?

0:30:58 Andrew: We'll pick that up later. Look,

0:30:59 Thomas: Come on.

0:30:59 Andrew: She's going to blame associates and clerks.

0:31:04 Thomas: Jesus.

0:31:05 Andrew: It's garbage. She will be held. I believe courts will enter Rule 11 sanctions against her. They have already been filed in the Michigan litigation. And let me explain kind of briefly what that is. I've talked about it before, but when you're a lawyer and you sign pleadings, you are responsible for saying that those pleadings are true and that they accurately state either the law or a good faith basis for changing the law, right? And you have to have that last part because otherwise, you know, you never would have had Gideon versus Wainwright. You never would've had landmark Supreme Court cases that say, I agree the law is X, but we're asking the courts to make the monument a step of overturning that. Become less monumentous in recent years with the Roberts Court.

0:31:57 Andrew: But that's the standard. I'm a lawyer. I've signed these pleadings. I take affirmative responsibility for what's in them. The buck stops here.

0:32:10 Andrew: The process of filing Rule 11 sanctions requires, so these have not been filed yet, requires you to send a letter to the other side and give them 21 days to withdraw their pleading, right? So when you go to the judge, right, you go them and you say, hey, look, we sent them a copy of our motion. We gave them three weeks to say, all right, our bad. We're going to withdraw. And they still haven't. And now, Judge, we want you to award sanctions because this is ridiculous. And again, I told you I have an active case right now in which we secured sanctions against the opposing party and opposing counsel.

0:32:55 Andrew: And we did not. We did it pursuant to the court's inherent powers. But I counseled my client that I wanted to follow the Rule 11 procedures, and we did that. We sent them a copy of our pleading and we said, look, this is what we're going to file in three weeks if you don't remove it. They didn't. And we filed it and ultimately the court agreed with us. So in about two and a half weeks time for us to talk on this show about the federal district court in Michigan imposing sanctions, Rule 11 sanctions on Sidney Powell for deliberately lying about a witness's credentials in the way that we just described.

0:33:37 Thomas: Well, Andrew, I have to say, I'm not sure you answered my initial question, but that's okay because we have a B segment. Where I think maybe we will actually cover these Georgia lawsuits. So, now that we've covered that Spider is not the intelligence expert that we all... I'm just, I'm flabbergasted. I've never been... I haven't been this surprised since I learned that trickle-down economics doesn't actually trickle down the other day. That article that people are sharing. Haven't been that surprised in a long time. So anyway, let's talk about these Georgia... lawsuits.

0:33:46 Andrew: Yeah, Yeah.

0:34:07 Andrew: Yeah, so these are four lawsuits that have been filed on behalf of the New Georgia Project. That's Stacey Abrams' outfit. They are represented by a team of expert lawyers, including Mark Elias, who you may recognize from Twitter. He's the one who's sort of keeping the election scorecard, which I think has Trump at 1 in 65 at this point. This is what an election lawsuit looks like, right? So these were filed yesterday, and a competent elections lawsuit will say, here's the provision of state law that we think you're violating. Here's the relief we want, and here's evidence that supports it, right. Weird.

0:34:47 Thomas: Yeah. I know this should go without saying, but a real lawsuit says, here's the law that's broken, and here's why.

0:34:52 Andrew: Yeah, it should. Yeah. So here's I think the range of, you know, zero is completely innocent and 100 is absolutely sinister. Right. These lawsuits allege conduct that is probably like in the 30s. Right? Like this is not deliberate voter suppression. This The fourth one And Houston County, right? And that's Houston County Georgia, not Houston County Texas, which is somewhat larger. So these four rural counties are implementing Georgia's early voting law, which Statute Section 21-2-385. And here's where some level of complicity comes in, right? That statewide law sets up the minimum requirements that counties must abide by in order to have early voting, right, in order comply with the state's election law.

0:34:59 Thomas: Oh, man.

0:36:21 Andrew: But counties are free to supplement, to go beyond that, right? To offer more than the bare minimum. And these counties were trying to just do the bare minimum, and they missed out on an actual part of that minimum, as I'm about to explain. So here's the floor that Section 2-385 sets. Subsection D1 says there shall be a period of advance voting that shall commence, and then sub-subsection C applies here, on the fourth Monday immediately prior to a runoff from a general election in which there are candidates for a federal office on the ballot in the runoff. Okay, so had to begin four Mondays before the runoff election. That was this past Monday, December 14th.

0:37:08 Andrew: And then the statute goes on and says, and shall end on the Friday immediately prior to each primary election or runoff. Put a pin in that one. Voting shall be, early voting here, shall be conducted during normal business hours on weekdays during such period. Okay, It's Monday through Friday, 9 to 4, right? But then they add in, and also you got to open for at least one Saturday, right. And so here's the provision in the law that governs the Saturday. It says, and shall be conducted on the second Saturday prior to the election during the hours of 9 through 4, provided that such second Saturday Does not follow a public legal holiday occurring on the Thursday or Friday immediately preceding. Right. And you might say, well, that seems like they they baked in kind of an extra specific thing. No, it has to do with the realities of. When general elections occur, you would think runoff elections as you start counting backwards are very likely to interfere with.

0:38:21 Andrew: Christmas or Thanksgiving, right? And as it so happens, the second Saturday here would be the 26th. The 26th immediately follows the 25th, which is Christmas Day, which a federal holiday. In that case, if the second saturday were to fall on a holiday, the statute then says, such advanced voting shall not be held on the second Saturday, but shall be held the third Saturday prior to such primary election.

0:38:48 Thomas: Calendar law is so riveting.

0:38:50 Andrew: I know it is, right? But this is the kind of hard work that real lawyers do on both sides in real elections, right. You look at this and you go, okay, so what happened in these counties? They wanted to do the bare minimum. So they opened up on the 14th. They're like, yeah, we're going to have weekday voting for four weeks, right, starting on the fourteenth, or for three full weeks, starting Friday, January 1, and we're going to give you Saturday, December 26. And the New Georgia Project said, no, you're going give us everything we're entitled to under the law.

We're entitled two more things. Number one, we're in title to a real Saturday, right? Not the day after Christmas. The statute says we're entitle to an actual Saturday. And so want that, right. And you're not going to end on Friday, New Year's Day, right? There's a second section of the law. I'm not going read it to you because of the rivetingness of the past, but it's section 21-2-14, which says that for the entire elections code, if one of the days shall fall on a Saturday, Sunday, or legal holiday, you go forward to the next business day, right. And so the next

0:38:57 Thomas: Yeah.

0:40:13 Andrew: Monday the 4th, not Friday the 1st. Now, is this a tremendous amount of relief that this seeks? No, it isn't. It's very, very modest. It says open on the right Saturday, right? And stay open for one extra day, Monday, January 4th. That is the day before Tuesday, January 5th, the actual election day. I think this is really, really important for A lot of people, right?

0:40:45 Andrew: Not everybody, most people, do not get off on Election Day. Should be a national holiday, should be state holidays. It isn't. The likelihood that you might have off that Monday, right, but not have off on that Tuesday is significant. The likely hood that you can get out and be able to vote in person at the polls, and again, safely, but the idea that you could And so.

0:41:37 Andrew: This is the real work that that real lawyers do on both sides. Looking at the statutes saying, hey, us as citizens, we got together and we said we want people to have expanded access to the polls and... You might not be evil. You might be malicious. But you're denying us a couple of days, and we want those days. And I think this lawsuit is why I'm featuring it in our B-segment. I think these lawsuits have a very, very high chance. They seek, like I said, that minimal amount of relief. It's injunctive. It is our favorite, a writ of mandamus, writ of Matt Damon. And, I think they're probably going to get this by the time you listen to the show.

0:42:22 Thomas: So, that's how it's done, folks. That's a real law suit.

0:42:25 Andrew: That's how it's done.

0:42:26 Thomas: Ah, refreshing. That is nice. It's like watching a real movie after we have to watch a lot awful movie. It like, oh, yeah, that how they're done. I forgot.

0:42:26 Andrew: Yeah.

0:42:35 Andrew: Yeah, and critically, notice, we think that this is going to benefit the Warnock and Ossoff campaigns, but we don't know, right? These are for super rural counties.

0:42:46 Thomas: But who knows? Voting. It's for voting, is what it's for, right? I mean, democracy.

0:42:50 Andrew: Yeah! Yeah, that's exactly right.

0:42:54 Thomas: A thing that, remember when we used to believe in that? A lot of us? Some people don't anymore, but that's okay.

0:42:54 Andrew: Yep. Yep, and I will be very, very sad if the reason why our candidates lose has to do with early in-person voting in these four counties. But you know what? Like, I will still have been proud to have been on the side.

0:43:15 Thomas: But if I ever argue, like two years from now, or whenever the next time this matters, if you ever see me arguing, well, we can't allow in-person early voting, just punch me in the face. I give you permission. I wouldn't, it's just not how it works.

0:43:26 Andrew: Yeah. Two votes. Punch me too. Yeah, two votes for punching Thomas, yeah. Yeah. I'll cheer you on.

0:43:39 Thomas: Well, I can't

0:43:45 Clip: Andrew Torrez is correct. The best kind of correct. Andrew Torrez. You were right. Tell your sister. You were right.

0:44:01 Thomas: Can't believe it, Andrew, but I think you might have left time for the C segment, for the wild card. That's amazing. Oh, this one should be quick. I think I can handle this one. So we got a question from Jeff here, and I kind of already posted about this in the group. Jeff says, On your December 14, 2020 show, Randall Eliason claimed multiple times that Trump was not impeached. This was not a mistake nor a slip of the tongue as he was laying out his points from a written editorial, and you let him do it without interruption or challenge. I am more than disappointed. I trusted OA to not spread fascist lies.

0:44:33 Thomas: So post about this co-host, as a non-lawyer, it's possible, you know, I should take extra care to try to rephrase stuff for people who, you know, are just tuning in or people who are not lawyers. So I didn't... I don't want this clarification, and none of us did, but I just want to say you'd have to have a pretty low opinion of all three of us, especially Andrew and Randall experts, legal experts, to think that we all just forgot Trump was impeached. People who covered it the entire...

0:45:06 Andrew: No, it's fascist lies. We are trying to gaslight our audience.

0:45:10 Thomas: I mean, you'd have to really think we're either the most evil people in the world or just complete idiots. And I would just encourage you, this is a good tip for life, too. Maybe take a second to think that there could be a reason that, you know, that you're wrong if your hypothesis is that we're fascist liars or... The stupidest people in the world. I'm just saying, you might get further. The whole argument was about whether or not Trump was impeached specifically on Mueller report grounds. And again, I will take some blame for the fact that maybe I should have been, as the layperson, I should've been realizing that some people might not catch that. Maybe I should rephrase that, yes, he was impeach on the Ukraine thing. But not, you know, they were talking about him not being impeached specifically on Mueller Report grounds and on those obstruction arguments kind of thing.

0:46:00 Thomas: So, come on, like, I'll take 15% of the blame, but the other 85% goes for realize we're not idiots and there might be more to the thing that you're thinking about.

0:46:12 Andrew: Yeah, and and I may have I I'm usually pretty pedantic. So, you know, I don't think I made the high school civics mistake of equating not convicted with not impeached, right? Like that's that's I don't think so either. Yeah, the the the point that Professor Eliason was making, which

0:46:27 Thomas: No, I don't think you did.

0:46:55 Thomas: Yeah.

0:46:59 Andrew: The Democratic House of Representatives decided not to impeach over those particular crimes.

0:47:07 Thomas: So obviously all the non-patrons haven't heard the full debate. But this took place in part one, I believe, I'm hoping. Otherwise, that was a patron who emailed us, but I don't think it was. So that will help clarify going forward for part two on Tuesday that that's what was meant. So we'll talk about the arguments then. And if you're a patron, you've already heard both parts one and two. So maybe another reason to hop on to Patreon. But if not, you know, it's a thrilling conclusion of the debate on Tuesday.

0:47:33 Andrew: Was very smooth, I like that.

0:47:40 Clip: And thank you, Let's go!

0:47:41 Thomas: And now it's time to thank our new patrons at patreon.com/law. I think you should definitely join their ranks for all the goodies. Law'd Awful Movies, by the way, dropped earlier this week. We have been busy, Andrew. Very busy. Lots to do. We want to thank our new patrons. I'll start us off. Thank you to Joseph Lenox, Xenoglossicist, Rose, Liam Shy, Jeff Hill, Mike Buiocchi... Oh, that's a tough one. Baki? Sorry. There's a lot of vowels in a row there that I don't know how they work. Brandon Crofoot and Alex Dunn. Your turn, Andrew.

0:48:16 Andrew: Yeah. Thank you to Eric, to Gib Azevedo. To CrypticWit, thank you to Derrick Kolpanen, to Sean Harmon, Kyle Low, to, I love this, to Keeley with a C. Just, yeah, absurdism. And Anthony Emberton, thank you all so much. We really, really appreciate your support. That's patreon.com/law. But you know what? If you're thinking about it this week, show up for our fundraiser instead on the 20th.

0:48:32 Thomas: But it's with a K. Yeah.

0:48:50 Thomas: Right.

0:48:50 Andrew: And yeah, we can hack it. Let's make

0:48:54 Thomas: And by the way, share it out.

0:48:56 Andrew: A difference.

0:48:56 Thomas: Share it far and wide. Everybody should come.

0:48:56 Andrew: Yeah, please do.

0:48:58 Thomas: What a lineup it is, Andrew. I can't wait. It's going to be so much fun.

0:49:01 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:49:07 Thomas: And now it's time for T3BE, hashtag pork the streak. Dear God, Andrew, I am on a bad streak that needs porking. Desperate need of porking, all right, everybody. Pork the streak by everybody chant while I'm doing it in your car, wherever you're listening. Pork da streak. Okay, here we go.

0:49:19 Andrew: Alright. Yeah. Oh my gosh, if this were like an 80s movie, we could feature like a montage of people pulling over and around the world, people chanting Pork the Streak, you know. Oh yeah, on the streets of Czechoslovakia, yeah.

0:49:28 Thomas: Oh, if this were... Yeah, different languages. Yeah. No, if this were, I'll tell you this. If this were a live show, we would get a good Pork the Streak chant going among the crowd. It would be glorious.

0:49:45 Andrew: I can't wait for live shows again. All right, Thomas, To Pork the Street, here you go. A, a restaurant owner sued a city official who condemned her building, arguing that the official wanted the land for his own personal profit. The restaurant owner filed a request for a preliminary injunction to prevent the destruction of her building until the case could be resolved at trial. The court granted this request. The city official asserted a claim of immunity, arguing he did not have to stand trial. He also filed a motion to dismiss for failure to state a claim upon which relief could be granted. The court denied both of the city officials' requests. The official wanted to immediately appeal all three decisions before

0:49:47 Thomas: Ah, me too.

0:50:29 Thomas: Jeez.

0:50:29 Andrew: Trial and sought the advice of his attorney. Which of the following is the best and most accurate piece of advice the attorney could give?

0:50:30 Thomas: Oh my God. This, okay. Here's the thing. Ever since we started the new bar source, I can't get them. So I think that what's happened is we found either the real bar, and so these are actually, or this is even harder than the real one or the other. But these questions, my God. Did you find a book that was like the most impossible bar questions to make Thomas feel like he couldn't be a lawyer, Andrew? Is that the book you found? Is it what it's called?

0:51:00 Andrew: Do you want the answer of what I actually found? You might not want to know. But no, these are actual real MBE questions that have been used in the past.

0:51:11 Thomas: It's like remedial entry level bar questions. Questions that you better be able to answer before you consider starting a locked study.

0:51:21 Andrew: Well, All I will tell you, Thomas, is that the book that these are from is shaped in a circle and each page is like a one inch thick piece of cardboard.

0:51:26 Thomas: I feel like Phoebe could do it. Yeah.

0:51:30 Andrew: You can bite down on it when you're teething. It's really...

0:51:31 Thomas: Oh, God. So anyway, which of the following impossible answers is Thomas not going to get? Here we go.

0:51:39 Andrew: I think you can get this. So what's the best and most accurate piece of advice that the attorney could give to the city official? A. None of these decisions are appealable until the case is completed to the end.

0:51:49 Thomas: Hmm. Interesting.

0:51:51 Andrew: B. All three of these decision are immediately appealable as they are all either of grave importance or could resolve the case then and there. C, only the granting of the preliminary injunction is immediately appealable as an interlocutory order. Or D, both the granting the preliminary and the denial of immunity are immediately appealble. So, different rulings, you could appeal 0, 3, 1, or 2.

0:52:20 Thomas: Yeah, gotcha. So here's the thing about this. This is going to be an interesting question in light of the fact that I'm pretty sure there was that lawsuit that we talked about earlier where it was like, okay, you need to wait. What was the Trump lawsuit where it's like, yeah, you shouldn't be able to appeal this, but then they just asked the court like, can you just do this now? And the court was like sure, because you're an old friend or something.

And so I don't know how that complicates this question. Like, I think the answer is actually E, if you control the Supreme Court, then you can appeal anything at any time for any reason. So that's my actual answer. But here, let me consider the real question. Okay, so I'll try for the benefit of the listeners. I'll break down what the claims are. We've got the first thing is that... Okay, city official, condemned building. The person wants to say, you did this for corrupting.

The first thing that went off in my mind was, if he has discretion, then there can be no mandamus, but that didn't end up being part of the question, which sucks.

0:53:16 Thomas: Let's see, or at least I think it isn't. So, file a request for preliminary injunction, prevent the destruction of building. That makes sense. I mean, that's a pretty undoable thing. It's a permanent thing if they destroy her building, so it makes sense that they would want to check that. Court granted the request. So then, okay, so here's the things, the decisions. So that would be the first one, I guess. The first thing that he wants to appeal is just the preliminary injunction, I gues. And then the city official asserted a claim of immunity, arguing that he did not have to stand trial. And they also filed, so that's the second thing. And he also filed a motion to dismiss for failure to state a claim upon which relief could be granted. So the court denies both of those. And then the official wants to immediately appeal them.

0:54:05 Thomas: Oh my god, this is the kind of crap, it's just so hard as a non-lawyer to know how it works. Like, when can you appeal something and when you can't? I guess that's the very nature of this question. A, none are appealable until the case is completed to the end. Okay. That could be something. I feel like... Forgetting about the ruling that was weird that we talked about with the Trump thing that I don't remember, I feel like you can't appeal the preliminary injunction. I feel that should be finalized. That should be good to go until they actually decided on the merits. I'm going to eliminate A. I think at least one of them is. I've gotten somewhere. B. All three of the decisions are immediately appealable as they are all either of grave importance or could resolve the case then and there.

0:54:53 Thomas: That's not a terrible answer. I like the grounds that they are of grave importance and could resolve the case, but one of the decisions is the preliminary injunction, they've already... I think I'm going to eliminate B. I'm gonna go with either C or D. I have no confidence in this. C, only the granting of the preliminary injection is immediately appealable as an interlocutory order. What? Oh, that's the opposite of what I thought. I thought that was the one that... Wouldn't be immediately appealable. Oh, great. Okay, D, both the granting of the preliminary injunction and the denial of immunity are immediately appeal. Okay. So, I'm going to have to rethink my process here because both C and D involve granting the preliminary junction appeal.

0:55:40 Thomas: I'm going to go back on what I said because when I think about, and I don't know if this is exactly equal, but when I about how some of the Trump cases went, some judge in Hawaii grants a stay or whatever, grants a preliminary injunction, and then that did get appealed up. So I'm gonna say that can be appealed. So then I would eliminate A, and I've kind of said the opposite of what I was gonna say earlier, but that's okay. And then so that would leave B, C, or D. So the preliminary injunction I think is is appealable there. So, then there's the claim of immunity arguing that he did not have to stand trial. Well, you know, again that also sounds like that does seem like something that you would want to resolve first.

0:56:28 Thomas: And then motion to dismiss to... You know what? Screw it. They all sound like you could appeal them. B. All three of these decisions are immediately appealable as they are all either of grave importance or could resolve the case then in their final answer.

0:56:40 Andrew: All right. And if you'd like to play along with Thomas, you know how to do that. Just share out this episode on social media. Include the hashtag T3BE, include the hashtag Pork the Streak, and then include your guests, your reasons. Therefore, we will pick a winner and shower that winner with never ending fame and fortune. Fame and fortune not guaranteed.

0:56:59 Thomas: We will see you Sunday, everybody.

0:57:00 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.

0:57:34 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.