OA459: Trump's 143 Pardons - the Good, the Bad, the WTF?

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 459, hey, Biden's still present, how about that, well, you know, we do record this a little early, so I guess I shouldn't be, I hope he's still present,

0:01:25 Andrew: Oh yeah. Right, I There's There's gonna be a super neat, right, paper looking at the like, uh, underlying sociology of all these QAnon supporters, right, and I just can't wait to read that academic literature, right, like I've, we've all read the like, you know, the ways that like people who were a member of, who was the guy who was like, well, the world is definitely gonna end on January 3rd, 2015, and Then Like

0:01:54 Thomas: Oh, there's 2012 was the big thing, I mean, that happens every, you know, that's every Christian cult leader every so many years, they all think the the world is going to end any second.

0:01:55 Andrew: Yeah. Yeah. Yeah. But there was, what, there was the guy who like took out the billboards and was like, you Know, convinced, had this like crazy numerological theory, was like definitely like January 3rd, 2015, and then, like, on January 4th, he was like, no, oh, sorry, Math Error, definitely no Later than October 2015, and Then October 2015 came and went, and he was, was like, oh, sorry, my bad, Harold Camping, that was the guy's name, um, And And the people who like have had to like reconcile, like, with like, what do I do when I have firmly believed in something, and now, like, it, it's

0:02:09 Thomas: Yeah. Yeah, whoops, yeah. Oh yeah, that name sounds very familiar.

0:02:45 Thomas: Yeah

0:02:45 Andrew: Clear That like, that's not the case, And these like QAnon supporters, oh,

0:02:45 Thomas: Well it's once again apologies but I talked about this on the last series inquiries only. I was curious my whole curiosity and the point I made was will they abandon Trump? Here's what I here's what I don't think. I'm not wasting a minute thinking they're going to change their their minds and reform, you know, like, oh, it turns out I was full of crap the whole time. They don't do that. Cult believers don't doing that. I mean, you know, in tiny numbers, they might. There may be a few of them who do. By and large, though, they always find a way to readjust their beliefs to conform to, you know, to whatever the new information is. So my curiosity was, will they keep Trump in that or not? Will it be, oh no, Trump is actually still president. He's secret president

0:02:54 Andrew: Man, And

0:03:30 Thomas: In Florida. Or will they throw, are, they're still going to believe the bullshit either way. But the point is, will it include Trump or not? That's something I'm not sure about. Will they, will they go, well, it turns out Trump wasn't a true believer. He wasn't an actual, uh, they got to him, you know, like, ah, the deep state that he's one of the lizard people now, you Know, or something. So I'm curious if that's which, which direction it goes. I I'm, I'm actually going to be tuned in to see.

0:03:53 Andrew: I love SIO, can't wait to go, uh, to go listen to that, I think I just think it's such an interesting question, and You Know, it's, it's kind of right on the edge of, um, you know, what you and I have sort of identified as the like the biggest social issue of our time, like, how do we reform a society with, with people who are disconnected from reality, I mean, Did you see that

0:03:58 Thomas: Yeah, well yes. And, and you might say, yeah.

0:04:16 Andrew: On inauguration Day there were protests outside Comet Ping Pong, I, oh,

0:04:20 Thomas: And look, the, The QAnon people, this is an interesting way to start the show, but it's, you know, it's just a it's a weird time we're in the QAnons people. You might say, oh, well, that's just a super crazy small subset. And it's not that small. There believers are in our Congress right now. But even if you want to say, OK, you Know, not all Republicans are that level. It is true that basically a vast majority of Republicans are at least to the level of of the, Joe Biden stole the election that's, a level of misinformation we're going to have to deal with for forever. I mean, this doesn't solve, I don't know what solves that probably nothing, but like being, I think having power will do a unbelievable amount of good, you Know, like having Democrats be in control of some stuff will do a lot of good. I don't think it will solve that issue. I I'm not sure that, you know, that's a decades long problem now and it seems to only get worse. So we'll see.

0:04:20 Andrew: Yeah. Yeah.

0:05:16 Andrew: I'm with you, I, I just think it's worth us sort of calling it out whenever we can. So I know I didn't mean to derail us, but I'm definitely soon as we're done this record, I'm going to go check out SIO 275 because that's that's what I want to talk about, man.

0:05:23 Thomas: No, that is. I don't know if you listen to The Daily, but they played some interviews. It's a constant back and forth with The New York Times, because on one hand, we're always mad, and rightfully so, that in the wake of Trump being elected, we're going to go interview some coal miners in a diner. That's always, it's always coal miners and a diners.

Coal miners, you know, we gotta hear from the heartland, America, and there's a very, very valid criticism that is, hey, it sure seems that your idea of heartland, true America people you need to hear about every time, is really white, and has a certain, you know, like, turns out the working class is not white really, actually, when you look at the numbers, like, we should hear from, you know, people that aren't, aren't, don't fit into this like white coal miner archetype that you think, think is so important.

But at the same time, given And the listenership to the podcast is already going to be super liberal, given the underlying factors we're talking about right now, which is the division in our media and all that, maybe it is valuable to keep an eye on those people, because all this is to say, they interviewed a bunch of Republicans or Trumpers, I don't even know if they're going to to be Republicans anymore, it might be Patriot Party people, we'll see.

In the wake of the inauguration, and almost every single one of them said, this is, this is theft. Like, they, they weren't like, OK, well, I want to do an armed insurrection, you know, but they were like, well, I don't blame the people for doing the armed insurrections, because the presidency was stolen. And that's like mainstream Republican belief.

0:06:53 Andrew: Is. And I wish I had an answer because, you know, somebody posted in the in the opening arguments Facebook group, a rant from their like, you know, crazy Uncle Frank. Right. And it was like, do you honestly think more people voted for Joe Biden than Donald Trump? I mean, I like, literally, like that's what it was. Right.

0:07:11 Thomas: Yes, I know. They're so obsessed

0:07:14 Andrew: It was just like, yeah, yeah.

0:07:14 Thomas: With the crowd sizes. Oh, Oh, the crowd – they're so obsessed with that, Andrew. It drives me crazy. You mean the group of people who recognizes there's a pandemic did not show up for Biden's inauguration? Wow. That must mean a conspiracy.

0:07:30 Andrew: It's all part of the same seamless web of nonsense. Since, I, I don't know, I, I despair, but we don't we definitely do

0:07:36 Thomas: Well, we need to get on to our show. Yeah, I just – it is a problem we're to have to keep an eye on this entire time, though. It is something to be aware of. The misinformation is not going anywhere. It really isn't. Uh, but what, what we can do

0:07:40 Andrew: Yep at least it will not be coming out of the White House for the next four years, yeah.

0:07:52 Thomas: Exactly, they said that there's that headline that was like misinformation dropped on Twitter 70% when they, when they blocked Trump, when they banned just one guy, unbelievable.

0:08:00 Andrew: Just by banning Trump, like yeah Yeah, yeah,

0:08:05 Thomas: So it does have an effect, but anyway, let's talk about, let'S get to our episode. Uh, I don't even know what I'm playing for the, there's no yodeling anymore. There's no, I'm, I'M all out of sorts. I have to make all new bumpers for stuff, Andrew. Let'S see what I made for this.

0:08:17 Andrew: Yeah.

0:08:48 Thomas: Speaking of the person responsible for apparently 70 percent of the misinformation on all of Twitter, Donald Trump, Andrew, with his document fetish, went through every single pardon of the how many was it? It 143. Wow.

0:09:02 Andrew: 143, yeah?

0:09:03 Thomas: So what

0:09:04 Andrew: No problem. I could do that. I could be sitting on my head, standing on my hand, right?

0:09:05 Thomas: What kind of just, you I'm, I'm expecting Bond villains, you did what did you find in there? Oh, wow, yeah.

0:09:14 Andrew: Worse than you thought. But first, I want to answer a couple threshold questions, And the right, two that I want to answer that we just see time and time again, we hinted at it last week, that the first one is, well, even our buddy Devin Stone, the Legal Eagle, made a like 50 second video on can pardons be revoked? Right.

0:09:33 Thomas: Finally.

0:09:33 Andrew: And and the answer is no, pardons can't be revoked. What people are looking to there, there are two historical events that are incredibly oddball corner cases. I'm going to talk about both of them that have led to a pardon being rescinded. But they are an extension of this doctrine. Right. And that is as follows. Joe Biden says, hey, I'm going to pardon Thomas Smith for all of his crimes against America.

0:10:05 Andrew: Right, and starts writing it down, gets halfway through and is like, no, wait a minute, it uh, clown horn, that guy uh, and and stops writing the pardon, lifts it up, crumples up the pardon into a piece of paper, uh, and throws it in the trash can, right?

0:10:04 Thomas: And I like dig it out of the trash can, yeah.

0:10:22 Andrew: We all yeah Yeah, we all agree, right? Like, even if he's completely written the entire pardon and signed his name right, at some point, like, in the process, uh, President Biden gets to say, yeah, you know what, I've, I've had second second thoughts about that. Not given that pardon to Thomas Smith after all. OK. That is the principle upon which people are trying to extrapolate to say, is there some basis for overturning any of Trump's pardons? And I and I just I want to tell you, the answer is no, definitely not zero.

0:10:37 Thomas: Uh-huh oh and you should want it to be no. Imagine a world in which every, every time the presidency changed parties, a bunch of black people who were convicted of minor drug offenses would have to go check back into prison, you know, like, I'm mad, they'd be free, and then, oh great, a Republican was elected, all right, grab my things, let's check back in prison, and then maybe a Democrat goes, oh, I'm out again for a little bit. That would be not a good course of events.

0:10:57 Andrew: Yeah. Yeah.

0:11:18 Andrew: It would be crazy. Right. So let's talk about the two cases that have actually happened. The first was Ulysses S. Grant is said to have revoked two pardons that were issued by Andrew Johnson. This comes from, and again, Ulysses S. Grant, right? This comes form a case in 1869. It does not come from a Supreme Court case in 1869. It comes from a Southern District of New York, the United States District Court for the Southern District in New York trial court decision in 1869. That's it. And here's what happened. Grant, Jackson had issued the pardon to three different people.

Them, the pardons were delivered to the warden at the prison where these prisoners were located and were still sitting on the wardens desk, had not yet been delivered to to the actual person. The third, they had, right? And so the rule, this case is called In re Dupuy, and it is 7 Federal Case 3814. And like I said, a trial court case from 1869. And it says a pardon becomes effective upon delivery to the recipient. Here, let me quote from the decision. The marshal was in this case no more the messenger than the messenger of the president. If the president can arrest the mission of the messenger when the messenger has departed but 10 feet from the door

0:11:19 Thomas: Yeah Yeah. Yeah. Right.

0:12:45 Andrew: Of the presidential mansion, he can arrest such mission at any time before the messenger delivers the pardon to the warden of the prison, right. So that's all that it stands for. Right. So so the question then becomes in 2021, what would constitute delivery of a pardon? Right. And I will tell you, publishing it on the Internet, there are a billion cases. Right. You would not want to say like delivery doesn't count until it's in someone's hand, particularly in a COVID-19 pandemic in which we're trying not to put anything into anybody's hands. Right? Right. Like it's just it's crystal clear that saying you've issued a pardon would 100 percent constitute delivery in the 21st century. It.

0:12:53 Thomas: Sure. Yeah, well, it strikes me that all of this stems from the difficulty in, you working out the logistics of a very straightforward part of the Constitution, right? It just says the president has the right to pardon. I mean, there's not a lot of language, right, so it's trying to figure out, well, well, what exactly does that mean? Does it mean that once the president has written it down or something, you know, and that's, but but it seems pretty obvious that one way or the other, while there might be some delay in the messenger reaching the person, it wouldn't be a good idea and it wouldn't make any sense to have future presidents be able to revoke old pardons going back however long.

0:13:48 Andrew: Yeah. Yeah, exactly. Right. That gets to the second of these cases, which is actually a recent case. I don't remember when this happened, but this was during George W. Bush's lame duck session. So December 23rd. I mean, you want to say lame duck, right? This is two days before Christmas on December 23rd, 2008. George W Bush went to pardon Isaac Toussie, T-O-U-S-S-I-E. He was a scumbag real estate developer who secured fraudulent mortgages in the 90s. And Bush in the lame duck was like, yeah, I'm going to give that guy a pardon. And if you want to think about the way in which the world has changed, despite this now being Christmas Eve, we learned Toussie's father had given $28,500 to the RNC and donated $2,300 to the McCain presidential campaign, and the political pressure was so great on George W. Bush in the lame duck session after having already lost, right? Well, it was a second term, but after the Republican Party already lost.

0:15:21 Thomas: Yeah. Yeah, he didn'T win that third term.

0:15:24 Andrew: Yeah, well, you know, Obama's coming in. Yeah. That Bush rescinded the pardon on the grounds that it was never delivered. Why was it never delivered? Because, again, right, he announces it publicly on December 23rd. But, you know, even George W. Bush isn't doing that much work, you Know, the the the day before Christmas Eve. Right. And so he hadn't written it down yet. He'd not effectively delivered it to Toussie. And because of the way in which pardons are presented. Right, there was no litigation about this because there was No way to prove. Right? Like, because Toussie was not in prison at the time. It would have made a really incredibly interesting case. Right. And I and I could have seen court saying, yeah, we depart from the rule of In re Dupuy. Right, we declined to follow a hundred and fifty year old district court decision from Southern District of New York, you know, in the 21st century, if Toussie had still been in prison.

0:15:26 Thomas: Thank God. Yeah.

0:16:21 Andrew: But, and this is a foreshadowing to so many of Trump's pardons, was not about getting Toosey out of jail. This was, he was long since no longer in prison. The question was, could he hold a real estate license again and go back to swindling people, right? Right. Because if you've got a full pardon, you're no longer a felon. Right. And now you can go back to, we've talked about how that denial of privileges based on the conviction go away once the pardon is issued. So, a pin in that one, because the overwhelming plurality of Trump pardonees fall into that kind of 2C category.

0:17:06 Andrew: They are white collar scumbags who have long since been out of prison. But it's about, quote, clearing their names, end of quote. But yeah, so those are the two cases that people are throwing around when they say pardons can be revoked. And you see what crazy edge cases they are. And they are just a derivation of the principle of the president can change his mind, but not you can come in and undo what the previous president did.

0:17:36 Thomas: Yeah, it's it's basically the difference between like, is the move done when you've stopped touching the chess piece or when you know, it'S like just that argument.

0:17:41 Andrew: Mm hmm. Yeah. Yeah, technically, nothing ever touches anything. Right. Because it's all the the strong nuclear force. So, yeah. Yeah, right.

0:17:50 Thomas: Yeah, right. Yeah. But nobody is saying it would be a good idea to undo a chess move from earlier in the game like that would mess up the whole thing.

0:17:56 Andrew: Yeah, correct. Exactly right. So that's your answer to question number one. Can can pardons be reversed? They cannot and

0:18:05 Thomas: All right. So next question. And this is one I've really I even teased on on my last episode that you were going to answer this because I'm very curious. You had mentioned before that pardons could be, you know, like secret sort of like he could have already pardoned himself. And we wouldn't necessarily know. There's nothing in the rules that say a dog can't have a secret pardon. Um, so what about all the people wondering right now, myself included, has Donald Trump secret pardoned himself, but it's still in his pocket, you know, he has like a get out of jail free, like an actual literal get out a jail free card that he, you know, wouldn't have publicized? It seems a little far-fetched, but not impossible. What say you? Oh

0:18:44 Andrew: Here's why I think it's impossible. OK, so first answer. And this is an application of the principle you summarized from from the A segment, right, which is the Constitution doesn't set down rules on pardons. Right. So there certainly is no rule that says a pardon has to be published on the White House website. Right? So when we say, could a pardon be secret? Right. The answer to that in a limited sense is it could be secret in terms of not being broadcast to the public generally. Right.

0:18:47 Thomas: Okay. Yeah.

0:19:20 Andrew: But it could not be secret as between only the president and the pardonee. And the reason for that has to do with the Presidential Records Act, right? 44 U.S.C. Section 2201 Subsection 2 defines as presidential records any documentary materials relating to the political activities of the president or members of the President's staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the president. And issuing a pardon is a constitutional official duty of the President.

0:20:05 Andrew: So every pardon becomes a presidential record. And then at 2203, 44 U.S.C. Section 2203. The minute a president's term ends, then the archivist becomes in charge of all presidential records. Right. So the president is directed to preserve, maintain and preserve presidential records during their term. And then upon the expiration of their term, the archivist gets custody of all of those presidential records I mention this because now we talk about the secret pardon. And Right. I want to talk to you about how that would play out in the real world. And remember, right, that what you do is you present the pardon in a criminal indictment.

0:20:53 Andrew: Exactly. Right? Like the way Michael Flynn had Sidney Powell attach his pardon with a little seal on it and everything, certificate suitable for framing, to as an exhibit to the pleading. So you say, I move to dismiss this case on the ground that the court no longer has personal jurisdiction over me on the grounds that I have been pardoned in full for the offenses to which I would otherwise be subject. And then Judge Sullivan in the Michael Flynn case looks at it and is like, yep, this is an authentic pardon. It covers the offense, for which the offenses for which you are before me. So therefore, because it is an authentic, Invalid pardon, because it covers those offenses, I'm granting the motion to dismiss. But notice the role of the court in that, right?

0:21:41 Andrew: And you might be tempted to sort of pause lightly on, we have to figure out if this is an authentic pardon or not, right. But you do, right, like obviously a forged pardon, right, is invalid, that that that works to no uh benefit.

0:21:58 Thomas: Lionel Hutz, this pardon is written on on a cocktail napkin and it still says, no, it still says guilty. Yeah.

0:21:58 Andrew: Right yeah right so Now, like, look, it's pretty easy to tell if I, Andrew Torrez, have a forged pardon from Donald Trump, but the court is going to impose extra scrutiny when it's Donald Trump Jr. yeah or Donald Trump himself, right, like, yeah.

0:22:13 Thomas: Donald Trump Yeah, like yeah, or Donald Trump, it yeah So

0:22:23 Andrew: Yeah, because they'll be like, well, Mr. President, with all due respect, how do we know you didn't write that yesterday? How do we know you wrote that pardon during your term of office? And the answer would be the Presidential Records Act that I just described. Right. So it.

0:22:42 Thomas: He can't just have like taken a Polaroid at the time with the with the day's paper, uh, well, yeah, at the tie, like last minute of January 20th, 11:50, you know, am saying, and and wrote, he wrote himself a little note, Donald Trump, Donnie's secret pardon, pardon, and then he busts that photo out with the pardon at the time, that wouldn't work?

0:22:46 Andrew: Yeah, it it it. I am confident that that would not work because if I were the prosecutor, I would say as between. Well, now you have to adjudicate. Is that photo right? Has it been photoshopped? Has it been altered? Is it inauthentic? And as between, oh, the archivist lost the record of this pardon or come on, Mr. President, didn't you just make this photo up yourself? Right. Like I think a court would very highly err on the side of like, yeah, no, that this This is in order to ascertain the validity of of an official presidential action. There's got to be some record of that action having taken place.

0:23:53 Andrew: So so I want to be clear. When Right. You first asked me, could is there the idea that there could be a secret pardon? Right. Is that plausible? It's plausible in the sense that there is no affirmative obligation to broadcast your pardon to the world. Particularly as you get closer and closer to the the presidency, to the president and his immediate family of friends and cronies, a court will be called upon to to evaluate. Right. Is this a real pardon or not? And if you want to add on top of it, right, like I've I've expressed, I continue to have confidence in the idea that that Trump cannot self pardon. I think that Trump can self-pardon. But as we pointed out on the show, right, like on the other side of that is Lawrence Tribe, who, you know, has forgotten more about constitutional law than I'll ever know. Yeah, there's a valid argument that self-pardons are not legitimate anyway. And so now what you're saying is Donald Trump is going to have this like wadded up napkin in his pocket.

0:24:07 Thomas: Mm-hmm.

0:24:54 Andrew: And then when he gets indicted for federal offenses, he's going to come into court with a self-pardon on a napkin that no one knew about. Um, Trump may be dumb enough to do that. I guess it's possible. Um, but we know he, he, uh, extensively sought the advice of Pat Cipollone and other White House lawyers, um, in his last weeks in office. And even Jay Sekulow, I think, would would tap him on the shoulder and be like, that's not a great idea, Mr. President. So I think we can be relatively confident that neither Donald Trump nor any of his immediate family, friends, Jared Kushner, whatever that counts as. Like, think pardons were not issued. I know everybody's afraid. Yeah.

0:25:39 Thomas: Well, that is really weird. Yeah, like I genuinely expected proactive pardons with Rudy, not to mention a lot awful Rudy. You know, like what do you make of that? I mean, I know we're going to go through the actual pardons in the last segment here, but I'm, I'm actually really surprised at this, that he, you know, the pardoning himself thing was, was iffy, you know? I could see maybe not doing that, but like, why didn't he just pardon everybody on the way out just in case?

0:25:47 Andrew: Yep. Yep. Yeah. I I think. 100% speculation here. I think we owe Mitch McConnell on this one. I really do. The day before, the

0:26:16 Thomas: Well, why don't we put it on the tab where the other side of the ledger is everything else in the world?

0:26:20 Andrew: Right of offset still applies. Mitch McConnell is still expiating an infinite debt. Don't get me wrong on this. But I think when Mitch McConnell publicly said that the mob that engaged in the insurrection on January 6th was spurred on, was motivated by Donald Trump and other powerful people, words were very carefully chosen by Mitch McConnell to be able to either a vote to convict right in the Trump impeachment or be give himself some weasel way out. Right. And the way in which Mitch McConnell will weasEL out of that and not convict is, well, I said motivated by Trump and other popular people. By that, I mean, you know, Alex Jones and QAnon and OAN.

0:26:25 Thomas: Yeah.

0:27:11 Andrew: And I'm convinced that the president sincerely believed these these demented conspiracy theories. I think it's a terrible thing, but I'm not going to hold him responsible. I'm that to me, I'm going to convict on somebody who sincerely believed nonsense. That's right. How you back out of to convict Donald Trump if you're Mitch McConnell. And then I think Mitch McConnell or representatives called up Donald Trump and representatives and basically said, if you pardon yourself or your family, I'm voting to convict. That's that's my read. That's again, 100 percent speculation. But but that's what I think,

0:27:48 Thomas: Why would he, why? Why? I still don't. I get that it's speculation. I don't know that that's not it. And I don'T you know, but like I. But why? Why would he do that? Why? Why? Would that matter so much to McConnell that he would? I don't know. That does something doesn' t make sense to me.

0:28:05 Andrew: Because I think you saw that that the insurrection fractured the Republican Party, and it made it impossible to defend the dance that they've been doing for the past two months. And I think McConnell said, "Yeah, this is, this is now a bridge too far."

0:28:23 Thomas: Yeah, but they don't need to defend it. You know, like Trump from Trump's point of view. What? Yeah, I don't' understand. And also not just I'm not talking about just pardons based on the insurrection. Section pardons on all this stuff, on anything that Don Jr. might still be. It's just amazing to me. I don't see, I still, well, maybe you're right, but maybe we'll find out someday. Or I don't know if there's any reporting on it yet, but I'm very curious why he didn't pardon anyone. And I guess that's one theory, but I think we should finally get to it, Andrew. Let's get to who he actually did pardon.

0:28:38 Andrew: Yeah. Yeah.

0:28:56 Andrew: Who he did pardon. OK, so one hundred and forty three pardons and commutations, actual text in the show notes of those for the very first time. I mean, literally not counting five or six cases, um, half are comprised of good pardons, right? 18 of the, so 70, right. Um, 18 of those 70 are cases recommended by the pardon attorney, right,

0:29:26 Thomas: I didn't know he still had one of those. I thought he got rid of It. One

0:29:27 Andrew: Yeah, we do. Somebody that is literally, uh. Trump has not relied upon his entire.

0:29:31 Thomas: Of The most Useless jobs yet To do nothing Job. Yeah.

0:29:33 Andrew: Yeah, yeah, Yeah. Yeah. And related to those 18 that came from the Office of the Pardon Attorney that were recommended are 40 plus that are nonviolent drug offenders. Right. So the kinds of pardons that we want to turn around and say, yeah, this is exactly what the power should be used for. Now, if you are cynical as well, you should be about Donald Trump. You can say, yeah, he threw he threw it. And you can see where they are. There are chunks of these in the big overall list that are included to, like, distract you so that, You know, you're not just reading down like, oh, my gosh, this is like a who's who of monsters, protesters, um. So, for example, it includes, um, Sarita Steib Martin. This is somebody who, uh, was convicted at the age of 19 and sentenced to 10 years in prison. Now, she, as a child, as a 19 year old, uh, was part of a gang that engaged in car theft and burned down an auto dealership to try to cover up their tracks, right?

Like, so. So like that bad crime. But after her release from prison, she became really a tireless advocate for, for criminal justice reform. And she convinced, she was, she was not admitted to college, and so convinced Tulane to ban the box, essentially, right, to not ask the question of what's your criminal justice history in admitting new students, which, you know, is really, really crucial, because if you're ever going to be reintegrated into society,

0:29:54 Thomas: Yeah. Huh.

0:31:06 Andrew: Like having access to education and employment are really keys to making sure you don't have to go back to crime. Right. So this is something somebody who in a bipartisan way, like everybody agrees, made a real mistake, served 10 years in prison. Right. Like, you know, not didn't get to get away with it. Scott Free and then has spent the rest of her life doing good things. Right. Scott Conner Crosby. Don't worry, there aren't too many of these. There are, in fact, only.

0:31:32 Thomas: Aren't Too many? The, yeah.

0:31:35 Andrew: Yeah. But Scott Conner Crosbie stole seven dollars when he was 20. Yeah, so yeah, Ed had the book thrown at him. Again, he's been out his his state civil rights.

0:31:35 Thomas: Oh. Wow, throw The book at him. Gosh. What Was That like a

0:31:51 Andrew: Rights.

0:31:51 Thomas: Third strike thing, or Okay. Almost like the Three strikes law was crap and we Should Never have Done It

0:31:53 Andrew: Yeah. Exactly. Yep. Um. Oh. Right. Yeah. That Was Overwhelmingly Pushed in by Republicans. Yes, exactly. Um, so he had his state civil rights restored, uh, in 2003 in Arizona, and then this restores his federal civil rights by, uh, by expunging the, the, uh, the conviction by getting, getting a full pardon. Okay, so, um, it, and again, I'm not going to go through, I will tell you, I, I stopped researching one by one anybody who was convicted of a non-violent drug offense, right, I just Assumed that was a good part

0:31:58 Thomas: Yeah, hmm.

0:32:29 Thomas: So What, we'll give him 70 good ones Is what. Okay.

0:32:32 Andrew: 70 Good ones, right. Now, next category, we're moving from A, you You know, non to, yeah, to more severity. So now we have one case, and five, uh, criminal defendants of arguably defensible pardons to five white collar criminals. And these folks were executives of an HMO. They are Todd Farha, Thaddeus Bereday, William Kale, Paul Behrens, and Peter Clay. They were prosecuted for regulatory violations. And so if you want the pro-prosecutory side, it was they interpreted the regulations in a way that was self-serving and inflated the value of their company. And determined that that interpretation ran afoul of the law.

0:32:38 Thomas: Well, cool. Uh, severity. Yeah.

0:33:26 Andrew: Law. If you want the pro-pardon side, they got a lawyer's advice and the lawyer said, yeah, your interpretation is reasonable under the law. Self-serving, but it's reasonable. Now, unlike the people in category one, these five people, OK, one of them served three years imprisonment. Most of them got probation. And, you know, it's a white collar criminal offense. But but nevertheless, if you want the best argument, you could say and these folks, pro business institutes like the Cato Institute have been arguing for years that these folks should be pardoned. And I'll give you the link in the show notes. Let's say that that's right.

0:34:12 Andrew: OK, let's say that, were they were maximizers, but they, they actually did solicit an attorney's advice that said that their interpretation of the regulation, while self-serving, is, is reasonable, shouldn't be criminal. OK. We got rid of their convictions. That's five more, we're done with the good ones, the Next category, there are 36 of these people, and if you're a patron, by the way, you will get my entire 50 page notes. Patron at any level, I Have 50 pages of notes, individual by individual, for each one of these, so, uh, you can look up your, your favorite scumbag. I want to tell you, all of these people fall into the category of, these are hideous white collar criminal offenses, right? Defrauding people out of their money, crimes in connection with the collapse of the financial sector in 2008.

0:34:32 Thomas: Oh my God.

0:35:06 Thomas: I'm surprised Bernie Madoff didn't, uh, didn't get a pardon.

0:35:08 Andrew: Yeah. Is right, these Are Bernie Madoff's, right. And I'm gonna highlight a couple of them, um, and and and you need to know, and I want to tell you just how duplicitous the Trump administration is in describing these people. So they they fit into the category of right, white, White, white collar criminal defendants who already got sweetheart deals and small sentences. They're all already out for the most part. They're already out of prison. And the reason to pardon them is to expunge the felony conviction so that they can get back in And go

0:35:12 Thomas: Wow. Yeah fleece

0:35:47 Andrew: Back to defrauding people. Right.

0:35:48 Thomas: More people out of their money. Awesome. Cool yeah

0:35:49 Andrew: Yep. So so let me give you an example. This is from the last guy on the list. But literally, like almost all of them fit this category. There's guy called Ed Henry. He's described by the Trump press release as Mr. Henry was sentenced to two years probation for aiding and abetting the theft of government property and paid a four thousand dollar fine. And you look at that and you're like, OK, right.

So guy who had two years probation and then it goes on to say he's shown super remorse and blah, blah, bla. Law. And you're like, OK, well, he's not a serious criminal because he was only assigned two years probation. Right. He never stepped foot in prison. Well, yeah, that's because white guys who fleece people out of their money get amazing sweetheart deals. What he actually did was defrauded Medicare out of two hundred thousand dollars under the statute. He could have faced 10 years in prison And a two hundred and fifty thousand dollar fine. So he got the tiny, tiny end of that already. And then, you know, now that's like, well, look, this is such a mild crime. Like, why not just pretend like he never crimed altogether? Right. It's just each one is more awful than the next. Right. Right. So we have Todd Boulanger, who was Jack Abramoff's right hand man. We got Carl Andrew Boggs, who pled guilty to defrauding the South Carolina Department of Transportation from $88 million.

0:36:33 Thomas: Not only

0:37:20 Andrew: Adrianne Sciotta, who counterfeited the Five Hour Energy drink. I mean, seriously, she she mislabeled.

0:37:30 Thomas: Is should that be a crime just making the normal five energy fire hour should be a prime under in biden's america oh Opening Arguments is brought to you by Paint Your Life. I love Paint Your life. I talk about this every time. The painting that I have of Lydia and our beautiful daughter Phoebe on the beach. It's one of my favorite things that we have in our house. It will be on any wall wherever we live as long as we are alive. It is that beautiful and it's that meaningful. And if you have somebody, wife, grandparent, maybe your parents, if you are somebody you're shopping for the perfect birthday, wedding gift, anniversary gift, by the way, Valentine's Day gift coming up very soon, I highly recommend Paint Your Life. Here's how it works. You get a professional hand-painted portrait created from any photo at a truly affordable price. You choose from a team of world-class artists and work with them until every detail is perfect.

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0:39:20 Andrew: A guy named Michael Liberty, who's been described as Trump with a Maine accent, who bilked investors out of $55 million. Named Michael Ashley, who was the CEO of Lend America, which issued a billion dollars in fraudulent loans, was convicted in 2019. And this is a commutation, so it may or may not implicate his restitution of $50 million that he still owes. Like I said, he may still have to pay that. It's not clear. Uh, believe me, Mr. Ashley will be in court arguing that he does not have to, um, Kyle Kimoto, who, uh, had to pay $30 million in reparations for assay, total burn and free money from the government schemes.

I mean, these people, Chalana McFarland, it Is these are folks who, are, we can't directly draw a line to Trump. In some cases, we can draw aline to people close to Trump, and right? Then it's Trump doing a political favor for people close too, right. Right. So Eliyahu Weinstein had a Ponzi scheme in which he was supposedly allowing investors to buy into an IPO for Facebook. He did not have the authority to to to purchase the IPO from Facebook. It was just a Ponzie scheme. Right. So later in that right, later, investors paid off the first investors and then eventually he absconded with two hundred million dollars. Um, Barr, Republican from California, supported, and Jeff Van Drew,

0:39:27 Thomas: My god.

0:40:12 Thomas: Is it just a list of Trump's personal heroes? Yeah.

0:41:04 Andrew: Republican, uh, from New Jersey, uh, supported pardoning this guy, commuting a sentence, um, and so they prevailed upon Donald Trump to do so. So each and every one of these 36 scumbags are people who are rich and powerful and politically connected, and one of these would be a terrible, disastrous, you know, nightmare to try and defend. You know, Ken Ford, the coal executive who lied to federal safety inspectors. Right. It the the former CEO of SunWest who laundered $130 million. Right. David Tammen, a guy who was on two separate occasions, obstructed, convicted for obstruction of justice for investigation into his $22 million Ponzi scheme.

0:41:27 Thomas: Okay.

0:41:53 Andrew: Faustino Bernadette, who got 15 months in prison, 15 months of prison for the largest Medicare kickback scheme in American history, which swindled the government out of nine hundred million dollars. Um, it's just over and over again. And again, you know, I haven't even gotten into the, uh, former politicos. Um, so, you know, Republicans like Duke Cunningham, but weirdly, like super corrupt Democrats like Kwame Kilpatrick, the former mayor of of Detroit. Um, again, just Google Kwame Kilpatrick, like read his Wikipedia entry. Um, that that commutation was supported by, and I'm not making this up, Diamond and Silk. So, you know, it's just like these are politically well-connected scumbags, we're not at the worst yet. Go ahead.

0:42:48 Thomas: I have a question. I will hold it for after. The

0:42:51 Andrew: No, no. No.

0:42:51 Thomas: Worst No.

0:42:51 Andrew: Go, go. For it

0:42:52 Thomas: I know. It's better after you're done.

0:42:53 Andrew: We have 21 that fall into the category of obviously repaying political. Right.

0:43:00 Thomas: Can't wait till we get to the super villain category, like these fall into the category of like assemble the Avengers because this person is on the loose, turns

0:43:03 Andrew: Yep. So Kenneth Curson, who was the editor in chief of Jared Kushner's newspaper, the New York Observer. Yeah. Wonder why he gets a full pardon. Why does Tommaso Beauty, who settled $15 million worth of lawsuits for $350,000, why does he get a full pardon for his financial crimes? Because he started a modeling agency with Donald Trump that brought in Melania Trump. Trump. How about Elliot Broidy? You know who Elliot Broidy is. Steve Bannon. You know who Steve Bannon is. These are people who directly did a favor for Donald Trump and And are now getting paid back or.

0:43:56 Thomas: Out, drain the swamp meant let all the swamp creatures out of prison, I guess. The swamp was prison, and now he's draining it of all the bad people who should be in there. Okay. So

0:44:08 Andrew: Yeah, exactly. And some of them are truly inexplicable. Right. Like the favor that Trump did for Lindsey Graham. So Lindsey Graham went to him and lobbied for a full pardon for a guy named David Rowland. OK, not the former head of Equitas of the London market. And I had to look that up. I was like, oh, my gosh, David Rowland committed a crime. No, no, no. This was a guy who was an asbestos remediator. His license expired. And then he took money from an elementary school anyway, even though he was no longer licensed to remove asbestos. Right. That could have killed children. But, you know, Lindsey Graham wants him to be pardoned. So there you go. He gets pardoned." Um, what about the, uh, the doctor who's, uh bribed a county administrator to get a government contract, um, served no time in prison, got three years supervised release, but now by getting a full pardon, he can get his Medicare license restored.

0:45:09 Andrew: So I think I'll leave with this last one here. Hillel Heli-Namad, who was a gambler, he was an art dealer, right? And he opened up an illegal gambling ring. Um, a, again, sweetheart deal, served, uh, one year and one day, which, as we've talked about, uh, is better than serving a year, because you get good time credits if it's over a year, right? Um, so, uh, was sentenced to a year and a day, got out in like seven or eight months. Um, and you might say, well, well, why would we want this, you know, illegal gambler to have a full pardon? Oh, because he owns an entire floor at Trump Towers.

0:45:50 Thomas: That was the one I saw, something that was like Phil Mickelson denies he had anything to do with the gambler. Yeah. Uh, Can't

0:45:57 Andrew: Exactly. That is exactly Right. It's the, it's the art dealer that used his sports connections to run the illegal gambling ring. There were three rappers. I don't begin to understand Trump's fascination with rappers, but uh, Kodak Black, Lil Wayne, uh, and uh, Michael Harris, who has a uh, a nickname, but um, I forgot to write it down Yeah He He was the founder of Death Row Records, right? So I guess Trump's a big fan of West Coast rappers, so there you go, um

0:46:18 Thomas: Be uttered on the Oh, Yeah, I don't know what that's about. It's all just somebody speaking in his ear, I'm guessing, whether it's Diamond and Silk or Pamela Anderson was involved. I saw a Fox News interview with Pamela Henderson about pardons. It's weird.

0:46:29 Andrew: Yeah.

0:46:43 Andrew: You This leaves, and this is how I want to kind of bring this segment to an end, because there are eight people that I do not understand how they got pardoned. Um, I, I mean, they're kind of connected in some way to some semi-famous people in a few cases, but it's weird, and I just don't get it.

0:47:02 Thomas: Can't figure. I can't finger out most of these, but okay. Extra can't figger out these eight ppl.

0:47:03 Andrew: Well, So All right, first is Casey Urlacher. And if you're, going, last name sounds. Yes, he is the brother of Bears great Brian Urlacher, right? Again, ran an illegal gambling ring, spent seven years as a Republican mayor of a small town in Illinois, right. Brian Urlacher visited the White House in March of 2020. 20. Uh, but it just seems weird, right? It's like, okay, maybe he did a friend, maybe did a favor for Brian Urlacher. Uh.

0:47:13 Thomas: Yeah. Brian Early, that's funny. Uh, Yeah, Oh, I'm sure that's what it is. That's

0:47:37 Andrew: Okay. How about this one? Jamie Davidson, uh, Jamie Davidson, in 1983, was convicted and sentenced to life in prison, imprisonment, um, for shooting an undercover cop, right. He was a drug kingpin. He gave the gun to a subordinate and was told him to shoot a cop in the head, uh, during a botched robbery. There's no, I, he, unlike a lot of the other ones, right, like this, it's not like, oh, non-violent drug affair, I mean this is, this is a cop killer and drug kingpin, I can't figure it out. That's all I can find.

0:48:10 Thomas: All you have, there's nothing else there, so just a cop murderer. Wow.

0:48:16 Andrew: Yeah, as I look through, so as people have said, there have been intimations that pardons may have been for sale, right? These are the ones that maybe fall into that category of, do I think a drug kingpin might have some money lying around? Yeah, good, good. Um, James E. Johnson Jr., um, who beat a guy with a metal folding chair and then was, uh, pled guilty to charges related, quote, charges related to migratory birds, end of quote.

0:48:17 Thomas: Yeah.

0:48:26 Thomas: Well, We know Trump's Uh, friends with the Vince McMahon or whatever, so Maybe, just anyone who committed a folding chair related crime, like the the pro wrestling angle. Yeah.

0:48:51 Andrew: He was maybe Maybe. It seems super weird. It could be. Glenn Moss. So Glenn Moss was part of a criminal health care overbilling scheme. He claimed two thousand dollars in income when he earned five hundred thousand dollars in income. So, you know, I almost moved him to the just the scumbag category, but, you know, that's a minor league scumbag, right, like It said, that's not somebody

0:49:20 Thomas: Relative to the, yeah, relative to what else is going on here. Oh,

0:49:22 Andrew: Yeah. Yeah. Relative to everybody else I have, I have no idea there. Um, how about this one? Um, and again, this is, I, it makes sense in that, um, other, like, prominent scumbags like this guy, so maybe it's, it makes sense, but Anthony Levandowski, um, no, no relation to Cory Lewandowski, uh, this was the guy who worked at Google in the the self-driving cars division, um, stole, uh, All Their stuff, uh, and then, you know, uh, brought them to the company that would become Uber. Right. They the the pardon notes that his his sentencing judge called him a brilliant groundbreaking engineer that our country needs. End of quote. Why the ex Google self-driving car guy? I don't know.

0:49:51 Thomas: Yeah, I

0:50:13 Andrew: Kind of weird. I'm to skip over the name here because it's really was hard to find the information on a guy who was a another drug trafficker. Right. Like not just a simple possession, but somebody who was serving a 40 year prison sentence for trafficking in, you know, way more. Right. Cocaine. It just seemed weird. This one was super hard to Google. Lou Hobbs, because, you know, not that Lou Hobbs, not

0:50:13 Thomas: Yeah, Lou Dobbs, not

0:50:44 Andrew: Lou Dobbs. This this guy seems to be a Brooklyn drug dealer and a friend of Mike Tyson. But I don't know that Mike Tyson is friends with Donald Trump.

0:50:44 Thomas: Lou Dobb. Yeah, I would, it wouldn't surprise me, though, if they were was

0:50:55 Andrew: Wouldn't surprise me. It's kind of weird. How about I leave you with the biggest question mark then? This is number eight of eight. A guy named Robert Zangrio. He was sentenced in the Varsity Blues, right? To to pay folks to take standardized tests on behalf of celebrities. Kids. That's Yeah. It. Right. Like it. He's just right. He'S not a guy that anyone has ever really heard of. Right.

0:51:16 Thomas: I Just imagine, Trump has no attention span, he's trying to golf slash be depressed about losing because he's a loser. And he probably just was like, yeah, whatever. Okay, fine. Add it. Yeah, sure. Sure. Or, you know, like, I imagine there wasn't that much process to this. So who knows?

0:51:39 Andrew: I it just seems weird because, you know, the Varsity Blues investigation, that's the one that brought down Lori Loughlin from Full House and, you know, a couple of other kind of C-list actors. That was a Trump DOJ achievement. Right. It it's so.

0:51:55 Thomas: Yeah. Yeah. So it just seems like somebody in his circle or him is friends with somebody. That's what I would guess about this. Or this leads to the question we're running out of time. But the question I want to ask is, we know that, again, he hasn't pardoned himself or anybody else. Can we pursue? Is there going to be any sort of investigation? Can we look into kickbacks, bribes? What went into these pardons? And, you know, what level of evidence would we need for there to be a crime there?

0:52:02 Andrew: Yeah. Yeah.

0:52:26 Andrew: Yeah. That's a great question. This falls under the federal bribery statute. Those allegations would follow. Let me be clear. They would be allegations. Right. And that's 18 U.S.C. 201. Right? Remember, we've talked about this. This is the McDonald case. Right, and and where the Supreme Court really narrowed Bob McDonald was demonstrating that he had not engaged in in, quote, an official act. Right. Like there was no question that Bob McDonald and his wife got like the, you know, use of the Ferrari and folk and fur coats and, you know, literal bags full of money. But their defense at the Supreme Court that that ruled 9-0 and overturned the conviction was all McDonald did was provide entree.

0:53:14 Andrew: Right. Like introduce these people around and say like, hey, you should you should listen to Thomas Smith over here. He's got a good idea about a bill that would be useful The official act would be the issuance of the part. Right. Right, right. So the idea that because it's an official act, like you're immune from any prosecution, like, no, it's the opposite. Right. That's what helps establish the thing that you're not allowed to do. And that is at the core, right? Like when the federal bribery statutes were passed, right, like the core of that was we do not want to have the quid pro quo, right. We do not wants to have, you know, somebody come in, bag full of money, hand it to a legislator and say, okay, so you're going to vote yes on the bill tomorrow, right This is no different, right They're both official acts, things that you're right Right. A legislator. Could you imagine a legislator saying, well, yeah, I took their money, but like voting on legislation is a power that I'm that I have as a legislate.

0:53:41 Thomas: Yeah.

0:54:13 Thomas: Well, That was essentially Dingus McGee's argument, you know, your your Harvard professor, wasn't it? I mean, what an idiot. What a terrible lawyer. Or perhaps he had reasons to try to defend horrible people. Yeah.

0:54:13 Andrew: Oh, yeah. Yeah. But no, no pardon for Alan Dershowitz in this. Yeah, which me quite a bit. So, yes, 100 percent investigations, even if if Trump had pardoned himself. Right. He you would still be able to investigate any ongoing conspiracy. Right, like unless he was paid in full for issuing the pardon and then wrote a pardon, pardoning himself for being bribed to issue. Right. Like it would have had to have been at that level of specificity. Or again, he could have issued a generic pardon for all offenses in being, you know, as of eleven fifty nine a.m. on January 20th, twenty twenty one. And I I remain surprised that we didn't see that.

0:54:31 Thomas: Wow.

0:55:16 Andrew: And that's Right. Why, you know, kind of to come full circle that that's that's where my McConnell supposition comes from. But but I think we'll find out. But. But the important part is, yeah, unleash the dogs of war at the DOJ, baby. Maybe we

0:55:29 Thomas: Is anybody looking into this? Are they? I mean, there's so many things to do. I just hope somebody is looking into this and figuring out what, if if anything illegal was done here.

0:55:40 Andrew: We do not know because those proceedings would be secret until a grand jury returns an indictment. I would be shocked if people are not looking into it.

0:55:50 Thomas: And that might be a way, it's not just to get Trump. Wouldn't we maybe be able to get these people back in prison where they belong? Oh, what a disaster. Hey, that's the last thing Trump did that we have to cover as news. We can cover stuff historically, but I think we covered it. That's the Last Bit of Trump Presidential News, right? Eminent domain, Maine, here we come.

0:55:50 Andrew: Right. Yeah. So we're

0:56:16 Thomas: So that's the end of the part and stuff. We'll keep an eye on, you know, we'll keep an eyes on any of any news related to investigations on that, but that sounds corrupt as F and I hope there are consequences.

0:56:09 Andrew: We're done. Yeah. I was

0:56:27 Thomas: These are horrible. Trump is not the law and order president. This is, I wish facts mattered in the world because this is just absolutely atrocious, but we'll have to leave it there for now.

0:56:25 Andrew: Yeah me too too.

0:56:39 Clip: And thank you, let's go!

0:56:40 Thomas: And now it's time for For thanking our Hall of Famers, our all-time greats over at patreon.com/law. And your turn to go first, Andrew.

0:56:49 Andrew: The only thing I love better than going first is going second, so you to tell Morgan G. tom son I I Don't know, but I'm glad we have friends, of you know, fans of Morgan. She's great. Um, the Smith's Patreon account, are we grammatically correct now? Biden borked the streak, October 23rd, 1987. Jake and Moss, Richard Scott, all Adderall, the president's men, Jacob Daniel Daniel Murphy, Daniel Lennon, former Federal Reserve attorney. Sorry, pause this list while I blow a kiss to my co-host. Sure. But but let me first say you are 100 percent correct when you say Sparkle Donkey is the world's best tequila in the world.

0:56:58 Thomas: Man, I don't know.

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0:58:18 Andrew: That means now. So order now. I just want to find 11,780 Doritos® Locos Tacos. Oh, that's great. I like my pork streaks paired with at Casa Agria and at Emperor's Brewery Beer. Check out Bradford, Dallas on OnlyFans.com for the most risque legal briefs you've ever seen in a men's hockey locker room. G.D. Tree says 50 kilograms of potatoes is 1764 ounces, 110 pounds, 7.87 stones, roughly 111.6 cups of coffee or 1298.7 Twinkies.

0:58:24 Thomas: Yeah.

0:58:55 Thomas: Yeah, but how many potatoes is it?

0:58:55 Andrew: All right. Yeah. 110 pounds of potatoes.

0:59:00 Thomas: Yeah. How many? You put it in terms of coffee or Twinkies. How many potatoes would that be is what I kept. Anyway.

0:59:08 Andrew: That'd probably be what, like, 300 potatoes, three, three, or three to 400 potatoes. Yeah. Thomas

0:59:13 Thomas: So as long as I drive around with 298 potatoes, I'm fine. Okay. Okay.

0:59:15 Andrew: Thomas Kleberg. Big docket energy. Rent of Mandalorian is granted when there is no discretion. This is the way. The GOP is a domestic terrorist organization. No quarter should be given to them. Ocarina of Time is still my favorite Legend of Zelda game. I, I gotta say, I love that you were playing the the OG Legend of Zealot game. It's, it's so good. Um, Lee Sharp buddy, freaking Guyerson one is first, but two is a close second. Idea for a screenplay: Air Bud Man's Best Amicus. Hadron, who knew a butt could be clenched for four years straight? Yeah, and I think we're all kind of, I'm just feeling that relaxation right now. It's so good. I'm happy to see Biden inaugurated, but in 2024, I'll cast my two fabulous votes, one primary and one general, to elect two fabulous lesbians who got a puppy.

0:59:32 Thomas: Ah, so good.

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1:04:27 Thomas: Unionize Brooklyn Friends The Criming Crimers and the Crimes They Crimed Sedate the Seditionists CivilPoliticsRadio.com Fridays at 7pm Eastern on Valley View Radio Good job on the voting for Joe Biden Please continue with the hand washing John Bilderbeck, Stephen Balticaday-Sandoval Two Lotawful Rudies is textbook IIED My lawyer, Sidney Powell will be reaching out shortly Philip Kizer Andrea the Arbitrary Capricious, you tell me the definition of a sandwich and I'll tell you if it's a crunch, if a crunch wrap is a sandwich. Sonic and Knuckles, can we all at least unite behind calling the guy in Furs and Horns Q Baka?

1:05:05 Andrew: Nice.

1:05:06 Thomas: Absion, Payne's Trumpet, Trambolus, let me be slightly more explicit because I like being slightly more implicit. Jonathan, the hair sued for tortoise interference. Trump wanted Four Seasons, got Doubletree. Can we charge the Trumpers with capital T treason yet? Motion to add Stan Ding, As a party. Stop. Ask a question a karaoke legend would ask. Milo Meadsong, Esquire. Halfling Bard, an attorney at law. Join your labor union. Together we bargain. Alone we beg. Antifa LLC, a wholly owned subsidiary of BLM Industries. Convict Trump. James K. Polling my support, but first suggest new crunch wraps. The Supreme is too left test. What? Sorry, I don't know.

1:05:51 Thomas: Chad T. Anonymous. Till all are one. Therese Chan, wordorigins.org, your source for legal terms from 13th century Saxony. Notus, Latin, known, notire, Middle English. Okay. RIP Notorious RBG. Ba weep grana weep nini bong. Okay. Jobu's Rum Your Yodel Mountain Fantasy Football League Champions. Yep. They said I could be anything, so I became two fabulous lesbians. Derek, Trump pardoned three turkeys this week. Congrats, Korn, Cobb, and Michael Flynn. Oh, you're so far behind. Just barely outrunning being pecked to death by lame ducks. A string of unpronounceable characters. RhondaTheDork.com. AG is my favorite Andrew co-host. Thomas is a close second.

1:06:37 Thomas: Hurtful. Malaika Chandler. Tricicular manslaughter. Adam Costa. Soggy Pants. Jay Aldenwalt. Buttercup's Legal Services. Actual legal advice from an actual cat. Matthew Vernon. Georgia runoff elections. Optimist Prime tested. Negatron approved. Sakashite Fukasumi is still migrating my DB schema for presence.impeached from Boolean to Integer, I guess. Boolean. Adopt a homeless pet and oppose declawing and ear docking. Dejuri Belli at Pachis at Last Baby. Heather L. Jeremiah's Fancy Microwave Emporium. Ian and Ali. Dan Irizarry. Eli Bosnick. David in Brooklyn. Monster Bait. To Gomes with a great Sirius NES reference there.

1:07:25 Thomas: Sam Denao, Mitchell, no commute, so behind on podcasts. Marjorie Taylor Greene is the Matt Gaetz of Louie Gohmert's. Natasha Crunchwrap wants you to support Justice Policy Institute. I agree with that 100%. Sam Buck and Conrad Michaels, still champion after all these years. Thank you, top patrons. You're the best.

1:07:44 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:07:50 Thomas: All right, Andrew, it's time for T3BE. Hoping I didn't pork the streak. I've always been against streak porking. You know that. Everybody knows that. This one, I have no confidence in this one. How did I do?

1:07:59 Andrew: You Yeah. I'm going to cut to the chase.

1:08:05 Thomas: Already doesn't sound good.

1:08:06 Andrew: Yeah, no, it's not good. You lost. Here's why, right? So this was a question. And again, you applied a lot of good principles to the question, but I'm gonna sort of tell you where you went astray. So the lawsuit is is a federal statutory claim, right? And the question is, do we admit as evidence a statement that is covered by physician-patient privilege under state law and indeterminate if federal law applies? So the first question is does state or federal law apply? And then the second Second half of the question is, under the appropriate standard, does that law recognize a privilege for physician patient?

1:08:09 Thomas: Oh, makes

1:08:57 Andrew: And right out of the box, federal law applies when you're in court on a federal statute, right? So the first sentence was, woman sued a man for physical damages based on a Federal Statutory Claim. And you talked about how federal courts will apply state law. That that is absolutely true. But but the main reason in which that occurs is that you often the overwhelming majority of federal court cases are diversity cases. Right. So our cases where citizen of state a citizen of State B and you're in federal court, but you're in federal court for state law claims. And so that the federal court applies the substantive law of that state in diversity cases, but not in federal statutory cases. Then you just apply federal law. State common law does not apply. Federal law does apply, which it

1:09:51 Thomas: Sense. Now I'm hoping the answer was D, so there was no chance I'd get it. If it was B, I should have gotten it.

1:10:00 Andrew: And in And in fact, it was D. Right. And And and Federal Federal law does not recognize physician-patient privilege To Because it's a thing that lawyers have to memorize when They're prepping For The bar. It, that Was

1:10:04 Thomas: Okay, so I wouldn't have gotten this. Why in the world is that? See, this is impossible. I will grant that I it, I blew could've at least gotten to B. But how would I have known that federal law doesn't protect physician-patient privilege?

1:10:18 Andrew: Yeah.

1:10:27 Andrew: The the way you could test prep your way into that would be to say, "Hmm, they've specifically told us that state A recognizes All the privileges of common law, but they haven't told us What the federal Government Recognizes

1:10:36 Thomas: Yeah. Yeah, but that doesn't mean anything in this test, Andrew. No, no, for real. Like, that could go, absolutely could go either way based on, yeah.

1:10:43 Andrew: No, You're Probably Right It Could look I'm doing my best to defend the bar, are I, should not, it was It's an unfair Question And

1:10:52 Thomas: No, it's not defending the bar. I mean, it is, I don't blame the bar for requiring people be lawyers to, or have legal knowledge to pass it. This is just further evidence that you have porked the test and this test is impossible. There is no way I could have gotten this. End of T3B. Be.

1:11:09 Andrew: There, there we go. But let's let us pass the torch to a new generation of T3BE questions. Yeah.

1:11:16 Thomas: Yeah, I'm two for eight in this new test.

1:11:19 Andrew: It's, uh, it's not, it's not a great number So far So That Is random chance.

1:11:21 Thomas: You would notice that's roughly random. Yeah.

1:11:25 Andrew: Yeah, that is, so, um, I

1:11:26 Thomas: So that's where that's what we're looking at in this day and age with this test. It's impossible. It's all the hardest questions I could possibly have. So that is what the bar is. Then I can't do it.

1:11:35 Andrew: Not, the bar is not all just the hardest questions, and I, and I agree, this was, this was a tough one, uh, and this was not one that I think you could reason to from kind of common sense. You really would have had to have thought about, uh, the kind of double Xanatos gambit that You know Half the time doesn't pay off anyway, but um, no.

1:11:50 Thomas: Yeah yeah. Is there is there there's no rhyme or reason to why federal law wouldn't recognize physician-patient privilege, is there? Like what? Well,

1:12:01 Andrew: I mean, Just, again, because, you know, that was, it's not a 13th century Saxony thing, right? If you start thinking about the additional privileges that, um, have, have subsequently developed, like the, the corp, and now, here, I'll, I'll illustrate my Own

1:12:17 Thomas: No, but it says state A recognizes all of the privileges recognized at common law. So that would suggest that the physician privilege is one of those at common love.

1:12:17 Andrew: Yeah Um, Yep, yep, but, but it's not, a it's not a federal law privilege, uh, and, and I can give you no justification for That whatsoever

1:12:33 Thomas: All right. Well, this was impossible. Let's see who's an actual lawyer who somehow guessed this one right. Who's the big winner?

1:12:35 Andrew: Yeah I Well, Thomas, once again, nobody on Twitter managed to get this question correct. And as always, we look to our patrons over at patreon.com/law, whatever that happens. And we had a lively discussion about whether HIPAA was going to come into play here. It doesn't. That's that's unrelated. So the winner is going to be patron Biden Borked the Streak, October 23rd, 1987, who says, "I'm going to guess that HIPAA only protects in due course. I think when a federal lawsuit is filed, the HIPPA protection goes away due to the discovery process. D, federal law reject the privilege should a suit in state court." Absolutely correct. And congratulations on being this week's winner.

1:13:28 Thomas: And that's our show. Thanks so much for listening. And we're looking forward to Eminent Domain sometime in the future. We'll see you next time.

1:13:36 Andrew: Bye-bye.

1:13:37 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.

1:14:10 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.