OA464: Impeachment 2 Secret of the Ooze

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 464. I'm, I'm Thomas and That is Andrew, how are you, sir?

0:01:22 Andrew: Sucked too. I am prepared to go forward with it. I am here live and I am not a cap.

0:01:28 Thomas: We Got that posted at us a few times, I'll Say yeah.

0:01:33 Andrew: Yeah. A few. Yeah. So we saw it. You can, you can stop sending it to us now.

0:01:36 Thomas: Exactly. That was funny, let's go. Uh, oh man, we got some, not only a great episode today, Andrew, a Trump free episode on Tuesday.

0:01:46 Andrew: I, somebody said this, uh, I think during one of our Q&A's, or it's basically like, hey, um, you know, Trump's no longer in office, so, uh, we can, we look forward to things that aren't, you know, that don't even remotely deal with Donald Trump. And absolutely. So I'm going to bring you the story of how one union is trying to unionize the second largest employer in the United States that has been entirely union free for its entire history, despite the fact that internationally all of its employees are unionized. So super cool story. I'm really, really excited. I did a lot of work on it. You'll learn about the National Labor Relations Act. It is a classic O.A. style deep dive. And and I can't wait to bring that to you.

0:02:38 Thomas: Yeah, we just, the problem is we got to clean all the Trump off the ceilings and the crevices. You know, there's a lot of Trump. We got to just get going to, there's a lot to deal with. And then eventually, once we scrub all that out, we won't have Trump anymore and stuff, hopefully, maybe. Murkowsky thinks that there's no reason Trump would ever be elected again, Andrew. So I think we're fine. We don't need to do anything else.

0:03:01 Thomas: Someone who has learned zero lessons from the past five years.

0:02:42 Andrew: Yeah. Yeah. Well I Just I I, you know, at least it isn't Susan Collins saying, uh, I, I think he's chastened and has learned his lesson, uh,

0:03:14 Thomas: Yeah. I wonder if Susan Collins was like, man, she's really creeping in on my lane, I gotta find, come up with something even more historically ignorant to say, like, well, anyway, Trump Fee Tuesday, I can't wait. Uh, what's going on in Aisle 45 this week?

0:03:22 Andrew: Management We broke down, uh, the initial brief that was filed by, uh, Donald Trump and talked about, uh, where we thought that might go on Tuesday, which, um, kind of turned out to be correct. And, um, so if you would like to hear me making fun of the Trump legal team's unbelievably terrible, terrible arguments on, on the process, then again, I'll go ahead, listen to, to this week's All 45. What's up, what's up at SIO?

0:04:00 Thomas: Had very special someone rescheduled, so, but that episode is going to be great next week, but I'll take this opportunity to say, uh, check out Philosophers in Space. We're doing, I think We're on q and a's uh, this, it's a little weird because we do, the patrons are a few weeks ahead, but anyway. Anyway, it's a fun show. Philosophy, fun hypotheticals, all that stuff. Check it out.

0:04:20 Andrew: I that. I really do love that show. It is, it is so much fun. It is very different than a than lot of what we do here. And and that's part of what's great about it.

0:04:29 Thomas: Thanks very much. We've gotta get going. There's too much, Andrew. There's to much to talk about. We're gonna try to cover it all. Here we go.

0:04:35 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.

0:05:01 Thomas: Okay, Trump, Georgia, update. Andrew, I gotta admit, sometimes, some days, here's what I want to, I know you're gonna cover this, but I also, broadly speaking, my question for you, and is, are we QAnon?

0:05:15 Thomas: No, let me explain. No, sometimes when I think about the fact that I really would have bet that Trump would be in prison or be on his way to prison by now, I start to wonder, you know, did we get too carried away? Like with all the New York stuff, let alone the Georgia stuff. And the other, you know, there is so much that it felt like Trump would be facing the minute he left office. Where is that? And, uh, today's story I'm hoping is part of that.

0:05:45 Andrew: Yeah, no, that is a very fair point. And I want to go back and kind of pick up all of the things that we have highlighted as being very, very significant. And, you know, where that is still an aspect of something that we can hold the Biden administration's feet to the fire to do that and and where we got it wrong to to analyze that and say, yeah, boy, this was just, you you know, a whiff on Andrew's part. I believe so. Opening Arguments for 55 titled me maybe a little bit of, you know. Attention grabbing headline. But Donald Trump is going to prison in Georgia. I still feel very, very good about that headline, about that episode.

0:06:33 Andrew: And I want to tell you that that in the intervening couple of weeks, here's what happened. Monday this week, Georgia Secretary of State Brad Raffensperger announced that his office was starting an internal investigation. Now, this is not a criminal investigation, but an internal Investigation into Trump's attempts to overturn the state's election results. And what that does is that sends down the instruction to all of your state agencies of, hey, if you've got evidence, if You've got emails, if you have anything that relates to this, we're going to be gathering them and putting them in one place.

0:07:21 Andrew: And what What that often does is that emboldens prosecutors to know that they don't have to undertake the the resources of trying to to piece together everything they need to make their case on their own. Right. They've got additional help from other state agencies. Right. And sure enough, yesterday, Wednesday, February 10th, Fannie T. Willis, that is the newly elected Democratic district attorney in Atlanta, sent a document preservation letter out to, well, here, let's take a look at this. This was a letter sent to Brian Kemp to distribute to every executive agency in the state of Georgia that says, "This letter is noticed that the Fulton County district attorney has opened an investigation."

0:08:18 Andrew: And now let me say when you open an investigation as the district attorney, that's a criminal investigation. OK, this is there is a person of interest who is described as not a Georgia resident. So you can you can infer that this is, you know, President Dash one from our from our previous. Right. Yeah. Not a non Georgia resident, though.

0:08:39 Thomas: Yeah. Damn it. Jimmy Carter. Ah, what's that guy gotten to this time? Oh,

0:08:47 Andrew: So, yeah.

0:08:48 Thomas: Oh shoot. You're right.

0:08:49 Andrew: Right. You wait.

0:08:49 Thomas: Oh yeah. Messed my own joke, but yeah.

0:08:51 Andrew: I don't wait to pick the only president who is a Georgia president. Anyway, Ms. Willis notes this investigation includes but is not limited to potential violations of Georgia law prohibiting the solicitation of election fraud, the making of false statements to state and local governmental bodies, conspiracy, racketeering, violation of oath of office, and any involvement in violence or threats related to the elections administration, administration, with the exception of that last category, which seems expansive, but hey, good, go for it. Those are all the things that we described on episode 08455, and we have given them a pretty solid roadmap of how you go about parsing the conversation between Trump and Raffensperger that demonstrates

0:08:55 Thomas: Well,

0:09:41 Andrew: That that Donald Trump was fully aware, whether he thinks he won the election or not, that he was encouraging an elected official to enter knowingly false numbers as election returns, so I find that incredibly encouraging. Um, the letter says, uh, you need to make sure, so this is the equivalent of a litigation hold letter, right? It says, um, "Please remind your staff it is a crime under Georgia law to destroy records created or received in the performance of government duty, other than through operation of an approved retention schedule. Should any retention schedule in your office dictate that relevant records be destroyed before being provided to my office, please suspend that schedule regarding such records immediately." So, um, yeah, this is, uh, hey, we have an open criminal investigation of Donald Trump and, uh, it concerns election fraud, please preserve every record and every document that you have. I would say that's not, that's not bad. Return on your investment, three weeks after my saying we would get that.

0:10:49 Thomas: Yeah.

0:10:50 Andrew: So, and one more incredibly weird thing. OK, remember when I talked about how BJay Pak, the longstanding prosecutor, federal prosecutor. Right. So he is the he was the U.S. attorney for the Northern District of Georgia. The day after the Raffensperger call became public, he resigned. And then the day after that, Trump moved a guy, and I can't say this without, like, thinking of Cannonball Run. But, you know, he moved a gun, and Bobby Christine, from the Southern District of Georgia, to become the acting, a USA, for the acting U.S. attorney for the Northern District of Georgia, right? Instead of just letting, just letting Pak's number two become the acting U.S. attorney, which is what you would think. Well, right, last week, Bobby Christine resigned as acting U S attorney for the Northern District of Georgia. And yesterday he resigned from the DOJ altogether to return to private practice in Georgia. Um, I do not know, I've been trying to find out if that is part of Joe Biden's efforts to root out

0:10:50 Thomas: Yeah, I'm excited.

0:11:12 Thomas: Yeah yeah.

0:12:06 Andrew: Trump officials that are political agents, uh, that are, you know, uh, occupying places within the federal bureaucracy, or if there's something, you know, more specific going on there, but that looked weird from the beginning, right? And it, it looked like the way in which you might make that sort of maneuvering is to, you, last-ditch effort by Donald Trump to try and indict Raffensperger, or maybe to begin a federal investigation of the same set of activities to try and preempt the state investigation. You know, all of that would be speculation, but, you know, it's coming from Donald Trump, so it would be probably fairly well-informed speculation. That guy, Bobby Christine, is, is gone now. So that

0:12:54 Thomas: I just imagine him after the, you know, obviously Biden takes office and Bobby Christine's like, I should probably move back. Move back? Yeah, I'll move back. Yeah, it's fine.

0:13:00 Andrew: I so there's your history on on Trump potentially being indicted in in Georgia.

0:13:10 Thomas: All right. Well, I will look forward to that. As far as, you New York goes, nothing. We got no movement.

0:13:17 Andrew: We got we got nothing. We got nothing coming out of New York. I understand. Again, I would say two things. Right. Number one, I think that anybody, particularly if you felt like you were close to a criminal indictment of Donald Trump, you're going to wait until the end of the impeachment hearings.

0:13:40 Thomas: I mean, I don't entirely, I've heard you say that and I don'T really know why. Like, they're two totally different things, right? Like, if Trump robbed a liquor store tomorrow, you know, the cops aren't going to be like, Oh, let's wait until this impeachment thing ends.

0:13:54 Andrew: Well, you're going to hear more about that in the main segment, but I think part of the Republican argument is going to be this is the wrong remedy, right? We've already seen Ted Cruz and Marco Rubio sort of throw up some trial balloons on that. Now, you know, their initial efforts were kind of hilariously transparent when they were like, well, the Senate should just go back to its business of, you know, trying to pass laws that will then vote against.

I mean, you know, that was pretty bad. But I think what we're going to see is, you Now, if Donald Trump committed a crime, he's now a private citizen, and go ahead and, you know, and arrest him, but, uh, but let's not use, you know, the sacred power of impeachment in connection with, uh, you know, someone who's no longer in office. It's a terrible argument, but don't, um, feed the other side a terrible agreement, uh, is, I think, part of what's going on. And I also think that there is a sense of not wanting to steal the spotlight, right? If Tish James were to announce tomorrow that they have indicted Donald Trump, that that might provoke some

0:15:09 Andrew: Calls from Jamie Raskin going like, hey, hey. You know, I just put together this like presentation, spent a lot of money, had a law firm like, you know, that was pretty good. And yeah,

0:15:08 Thomas: Yeah, that's True. Yeah. There's Look, there's enough justice to be doled out to Trump that each of you and every one of you can get a time in the spotlight. I agree, you're right. Take everybody one by one. Every prosecutor who's going to indict Trump for something, feel free, don't, you know, you each get your moment in the sun. I agree.

0:15:37 Andrew: Yeah. Take a take a number like it's at the deli. So that's that's my thought.

0:15:38 Thomas: What, If They have a shared Google calendar, they're like, like, but I want to, ah, like, fine, but I got the kids that weekend, so you need, ah, you know, just battling it out.

0:15:46 Andrew: Yeah. All right, Fraud prosecutions are in purple. Um, yeah.

0:15:51 Clip: Ask the president of Finland a question, please.

0:15:56 Thomas: Okay, impeachment. Andrew, I was I like, initially, you know, I was a little too, I don't know what the word is, but it was just couldn't manage getting invested into this because I'm so sad from the last time, several times, you know, the Lucy football, whatever, you know. But then when we talked on the stereo Q&A last night. I don't know. You got me excited. You made me want to go check it out. So I actually went and watched all of yesterday's impeachment stuff, it's a hell of a case. I haven't felt this compelled by an argument in court since Atticus Finch, and I expect this to go similarly to that.

0:16:33 Andrew: You know, you can, you can, um, you can lead Negatron to water, but you can't, whatever, don't I don' want to say the exact same thing we said on our, our Stereo Q&A. But I, it cannot be overemphasized that on Tuesday, we had. So basically, the way in which impeachment proceeds is at each phase, the Senate has to pass a new resolution clarifying kind of exactly the schedule and how the rules are going to apply. So, right, when they received the articles of impeachment from the House, they passed Senate Resolution 16. And that set the schedule that we saw this week. And it said, hey, they're going to get a week to prepare their briefs. And then Tuesday, the 9th, will be set aside for an argument on jurisdiction.

0:16:40 Thomas: Yeah.

0:17:27 Andrew: Now, this was super duper weird because the Senate already voted on jurisdiction on January 26th, Right. They voted whether to officially formally receive the articles of impeachment from the House. And this was the vote that Rand Paul went on the Sunday shows to crow about. Right. Where it it passed fifty five to forty five. And Rand Paul said, you know, in addition to our usual sources, Murkowski, Collins and Romney, we also got. Pat Toomey from Pennsylvania and Ben Sasse from Nebraska. Right. Thought, right, already we're starting with a better margin than last time. And right.

0:18:07 Thomas: There you go. It's the it's the supermajority half empty versus half full that that divides you and I, because I'm thinking, Well, that's... I you look at that as a number that could grow. I look at that as actually the vote to merely hear the case will include more Republicans than the vote you actually convict, just because you'd get some that are like, "Well, yeah, I'll hear the case. Okay. I heard the case. It sucked," or something.

0:18:13 Andrew: Fair. Fair.

0:18:31 Andrew: So I don't interpret it that way. I interpret the vote to hear the case in the same way as I interpret the vote day to have heard witnesses in in the first impeachment. Right. Which is to say, it is Republicans who have already made up their mind. Yeah, I'm done. I don't need to hear anything. I'm going to vote to defend Donald Trump. Nothing can persuade me. They want this over as quickly as possible. They want as few votes as possible. They want to assuage their QAnon supporting idiot base. Oh, yeah, yeah. No, I still support Donald Trump, but have as little a record as possible for when this entire edifice comes crumbling down, which will happen. Right. Guess we can debate that.

0:19:17 Andrew: And certainly we can we could debate historical, you know, inflection points or what have you. But that's my read on what the Republicans want. They want this done, taken care of. And if if you had if Republicans had a 51 vote majority, do not know if we would have gotten even Murkowski and Collins and maybe Romney. I mean, Romney is sort of now pitched, you know, fixed his star, pitched his brand to I am the face of the anti-Trump Republican Party. So, you knows, who knows? Maybe we would we would've gotten it anyway. But but that's how I read that January 26th vote. And then SR 16 said, we're going to do the same thing. We're going To give you four hours to to each side.

0:20:06 Andrew: And you can present four hours total, split between the two sides. And, and you guys will will make a presentation as to whether it is constitutional for this Senate to hear an impeachment regarding somebody who is no longer in office. This. And we've talked about this on the show. This is a while a constitutionally intricate question because of sort of the lack of precedent. It's not a hard question. And we talked about Brian Colt and the seminal law review article on late impeachment. I have to say, as a sidebar, I thought Jamie Raskin's characterization of, reframing of, late impeachment as the January exception, I thought was super brilliant. Right. Like that was just really a good way to say like, oh, so what you're doing is you're saying if the president crimes in January, then there's nothing we can do about it. Yeah.

0:20:58 Thomas: Yeah, it's the purge. It's fine. You get one free month of crime.

0:21:02 Andrew: Right, right. And and I thought that was super smart.

0:21:05 Clip: YOU BETRAYED THE LAW!

0:21:07 Thomas: Exciting announcement. Every week, we're doing an extra Opening Arguments. You know how? We're going to be on the Stereo app Wednesdays at 5 p.m. Pacific, 8 p.n. Eastern. We're gonna be on The Stereo app answering your questions, and you're gonna be a part of the show. I am so excited for it.

0:21:23 Andrew: This this is going to be a lot of fun, um, the Stereo app is really cool. What you do is you you download the app, you sign up, look for me, I am at Torrez, T-O-R-R easy, Thomas is at Serious Pod, and you'll get the little notifications of when we're about to go live and you can talk to us live and ask us questions. So you know, we're looking for ways to increase that interactivity with you. This is not replace our monthly Q&A's, we're going to continue to do that, uh, but this is just uh us being able to get out, bring you more of the show, uh, bring you that content and and have you interact with us uh live.

0:22:00 Thomas: But this is exclusive to The Stero app, so you gotta get on that. Go find that at your app store, whatever app store you use. I am excited to hear from you. You guys get to be a part of the show and ask us whatever. There are so many issues. There's even more stuff to cover now than ever. You know, it's in a weird way, you know, people were worried what we talked about after Trump, but without that clown horn clogging up the Twitterverse, there's even more cool stuff to talk about.

0:22:26 Andrew: Absolutely. So make sure you join us over on Stereo, that is every Wednesday, day 8 p.m. Eastern, 5 p. m Pacific on the Stereo app. Look for me, I'm at Torrez. Look for Thomas at Serious Pod, or just start searching for Opening Arguments, you will come across it, and and we'd love to see you there. As our listeners know, the vote on constitutionality was 56 to 44. And it it was those same 55. And then they picked off Senator Bill Cassidy, old white Republican from Louisiana. No prior indication that he was listening or cared about this, thinking about this in lawyer terms. And and I had something similarly great happened to me this week, which was I had a party file a motion for summary judgment that was ridiculously premature, and I filed my opposition, and with attorney, ace associate Morgan Stringer's help, of course.

0:23:25 Andrew: And then two and a half days later, the court issued a ruling denying the motion for summary judgment before the other side had a chance to file their reply brief, which has never happened to me in the 24 years that I've been practicing law. Like where the court's like, yeah, yeah. Yeah. Like stop. Stop beating it with a stick. It's already dead. I felt fantastic about it. The idea that you would have a procedural motion. Can the Senate hear this case? And on the basis of just legal argument made by the House impeachment managers versus, you know, Bruce and Dave, the president's two guys, and that you would shake loose a Republican senator from a deeply red state, you know, a Trump plus 25 state unbelievably encouraging to me.

0:24:14 Andrew: So I felt great about it. I still feel really good going forward. Word, right. I've cracked the joke of, you know, at this pace, we only need the impeachment to last 11 days and we'll get, and we're going to conviction. But yeah, I thought I that was good. And I think what you saw over what will have been the past two days laying out the opening statement now of the House impeachment managers is really, really smart in terms of denying, denying the president's lawyers any kind of functional ground to really make an affirmative case. Right. Now, could approach this as a criminal trial, right? And you could say, want to put the government to its burden. But this sort of harkens back to maybe our most controversial episode, the serial episode.

0:25:04 Andrew: Right. In which I said a good defense tells a story as well. Right. You don't just say, oh, if you're 85 percent sure and it's probably my guy, but, you know, you have a reasonable doubt, you have to acquit. You can do that. But really, really good defense, even when the evidence is not on your side, contains an element of a story that jurors will find compelling. And the obvious example of that is the O.J. Simpson trial. Right.

I think most people watching that probably think O.G. Simpson was guilty, um, but as they're watching the defense and figuring how you weighed it, would go, yeah, um, boy, some of that evidence seems really weird and rather than just kind of putting it in the context of, like, well, this is unexplained evidence, so, you know, but putting in the context of, and you know what, like, racist cops try to gild the lily and fake evidence all the time, that became a part of a compelling narrative. Right. And how compelling it was to you. I, you leave each individual, but but note that the defense had that kind of undertone of, is the story that we want to, I want you to ask yourself, Thomas, if if you were defending, and look, based on Bruce's opening argument on Tuesday, like, I think you could be swapped in

0:26:33 Andrew: To defend the president and that would be an improvement.

0:26:32 Thomas: I know I had a bad last 10 questions of the bar because it was a pork test, but I could do better than that guy, but I like my theory that I said on the Stereo Q&A, which you should definitely not miss every week on Wednesdays at 5 p.m. Pacific. I like the idea that this guy is purely cashing a check. He goes from zero to hero in my book because he gets up there clearly winging it, put no effort into research, or he doesn't have Ace Associate, Morgan Stringer.

He's just up there like, yeah, sure, I'll take that check. Yeah, oh, I have a great defense, great defense. And furthermore, he could even be like, it doesn't matter because they're not voting to uh you know because Negatron is always right and they're not voting to uh convict anyway so it doesn't matter, I'll get up there, I'll beep bop boop, I'll you know just you know off the cuff. And that's what he did, I was trying to scat there, I realized I didn't realize how to scab, you know, that kind of thing, and uh, and so he does it, doesn't matter. So that, so I could do better than that or the same as that. I've

0:27:19 Andrew: Yeah, no, that was it was good. You you would do better because you would not wax rhapsodically about the state of Nebraska. I know you well enough to predict that or

0:27:37 Thomas: Never even heard of the state of Nebraska. So yeah, telling if this guy announces, this is what he was doing after it's all said and done. I mean, it'll probably be disbarred or something. That'll be the one thing you can't, the second thing you can't do, but he would go seriously from zero to hero in my book. He'd be a folk legend. He's like, yeah, I just cashed check.

0:27:39 Andrew: Start reading poetry. So Yeah,

0:27:55 Thomas: I didn't even, I did no work.

0:27:55 Andrew: You could be disbarred, but more likely you would just get censured or sanctioned. Right. Like, you know, he might lose his license for a year or something Something like that. Hundred percent, it would be an outstanding application of the principle of, you know, passive resistance of of civil disobedience.

0:28:14 Thomas: Yeah. Well, how much is he getting paid? Your vacation, baby. This works perfectly.

0:28:19 Andrew: I love that. So dovetails rather nicely with the Trump defense brief. And me explain why this is still relevant. Them, this, OK, is meant to be the legal handbook to the jurors. And, right, again, most of these senators are lawyers. Right, a majority of them are lawyers and some of them are accomplished and smart lawyers. Right. Even if they're evil, like, our buddy Ted Cruz. This is meant to be, these are the legal arguments that we will, around which we will frame our case during the impeachment trial. The first thing that I want to tell you is more than half of the president's brief talked about how badly written it is and quotes Brian called out of context and all sorts sorts of other stuff.

0:29:11 Andrew: More than half of the brief is devoted to process arguments that say the Senate does not have jurisdiction to consider the impeachment. In other words, of the 78 pages of this brief, more than half, more than 40 pages are devoted to an issue that was resolved three days ago by the time you will have heard this. I cannot stress to you how bad a strategy that is. Like, look, I have had, and here's why it's a bad, I mean, it's a bad strategy for exactly what happened. Right. I have had cases where I've briefed a standing issue or a mootness issue or something else that is dispositive off the bat. And what you do is you make that argument number one and it's three or four pages and you give, you put your best into it.

0:30:01 Andrew: And if the court is really, really interested in that particular issue, they will either order supplemental briefing or they'll spend a lot of time at your oral argument on it. Right. And has happened, what usually happens is you get up. My last argument before the Fourth Circuit went exactly this way. I said, may it please the court, I'd like to begin with argument one and briefly review our arguments as as to why this court lacks standing, that this is not alive. And one of the judges on the three-judge panel would jump in with, counsel, we've read the brief. Assume for the sake of argument that we're going to rule against you on standing.

0:30:43 Thomas: Yeah, yeah.

0:30:43 Andrew: What's your next argument?

0:30:44 Thomas: All right, Bozo. Come on. You tried. Let's uh, let's hear the real arguments.

0:30:46 Andrew: Right. And they will say that, yeah. And look, and at that moment, if you don't immediately pivot to, thank you, your honor, on the merits, right, like then you might as well go home, right? Right. Like then you're you're about to lose it.

0:31:00 Thomas: Yeah. But like, what if you really care? That's an interesting position you're in. Cause what if you really believe in that argument? Like you don't want to, on one hand, you don't want to waste all the time and pages on the, on the argument that might fail, but also you don't want to signal to the judges that you're like, yeah, not really. My heart's not in this one. You know, that must be tough. How do balance that?

0:31:19 Andrew: It it it is tough. It's especially tough because unlike the impeachment briefs, your typical appellate briefs are page limited. Right. You you only have so many pages, so many words. And, yeah, you've got to divide them between your best, you know, your best arguments, your your second best arguments. And then, you know, your your long shot arguments. And it's tough. And I will tell you, usually, I guess, right as to what the main issue is. But I have both won and lost on arguments that I thought were tangential. Right. Where where a court would say, no, I I, really bought into, you know, this application of this particular

0:31:30 Thomas: Oh, even Harder. Or yeah.

0:32:04 Thomas: You're like, oh, good. Because I meant it. Yeah, no, uh, definitely. Thought that would work. That's

0:32:04 Andrew: Yeah. Right. Yep. So yeah, that that that's a, I mean, I don't have a, I don't a straightforward answer for you.

0:32:12 Thomas: Cool. That's a little inside lawyer-y stuff that people like me wouldn't think of. That's that's interesting. But this guy spent a way too many pages on this, you're saying.

0:32:13 Andrew: Yeah, yeah. Yeah. Cool. It's been half the brief on an issue that is irrelevant that if that if it is mentioned at any time In the next two days. Right. Friday and Saturday is when you're going to hear from Trump's team, from Bruce and Dave again. It will cause Fox News to to to roll their eyes and say, OK, well, we've we've covered that issue already.

0:32:22 Thomas: Yeah.

0:32:43 Thomas: Switching over from the Dallas Mavericks uh, anthem controversy for just a quick minute to check in with this, that's what they'll do.

0:32:44 Andrew: Yeah, yeah, So here's what's going to happen. Friday and Saturday, you are going to get the opening arguments from Bruce and Dave, the president's lawyers. It is 16 hours over those days to eight hour days. You can end early. I suspect they will end early I suspect they will not come anywhere near using 16 hours worth of time. And then yeah

0:33:12 Thomas: It's like I only know so many poems about Nebraska or whatever the hell I did in the There's only like one, it's their official state motto. And that's it, that's all we got.

0:33:17 Andrew: Right exactly. Exactly. A if their brief is to be believed and if they're if their grief is not to be be believed, then everyone will say, you're just making up arguments that you know you didn't even bother to write down, given an infinite amount of space in which to put them. Right, you used 78 pages. If you really wanted to make this argument, you could have made it, uh, and you chose not to, and now we're getting it. So, uh, so, you know, really is kind of a double bind. Um, if their brief is to be be believed, there are only four arguments that they are going to raise in defense of Donald Trump. And as I walk through these, it makes particularly yesterday's presentation, I think, make perfect sense, right?

0:34:13 Andrew: Because you realize why the House managers spent all that time rebutting in advance arguments that they anticipate that Trump's team will make. And the first one, the big one, that right, will be featured front and center is we have the First Amendment in this country and you can't punish somebody for having a political difference of opinion. Here's how that's going to come out. And think about how flat this sounds, having watched yesterday's proceedings. So this is this beginning of page 42. So, you know, I told you it's late in the brief already. A difference of political opinion expressed in speech on an issue of voting irregularity, that's Bruce's words, cannot be punishable where all that was done to encourage investigation of voting regularities and peaceful political speech.

0:35:04 Andrew: Beach, and then there's a site to footnote 108, and that is quoting from Donald Trump, you will hear this quote again and again, even though it has already been put into context multiple times by the House managers. Quote, I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard, end of quote. That is quoted six times in the president's brief, and the word peaceful or peacefully is quoted another 12 times. Right. So in other words, every couple of pages, Bruce and Dave say, what he said, peaceful. Right, but rather than being able to show multiple instances, it is the same quote over and over again. It. And that's because I thought the house managers did a brilliant job yesterday of putting up the full words in context, right? They played the peaceful bit, but they played it while playing it in the context of saying, I love you. This election was stolen from us.

0:35:42 Thomas: Yeah.

0:36:05 Andrew: This This is what happens when very bad people take away our landslide and be peaceful. Right. And yeah.

0:36:12 Thomas: Well, actually, importantly, if that one, when he's saying you're very special, be a very beautiful, special baby boy, you know, all that weird one, they said he, he said stay peaceful after already hours of violence, you know, that he knew about, you know, so, like, stay peaceful, who? And I thought it was a great point that they made at the, on the, on the floor of this, the Senate or whatever, which is like, yeah, who are you telling to stay peaceful, who was, who was being peaceful?

0:36:38 Andrew: I think that's a really, really good point. Will flag something AG texted to me earlier today that we'll see, that I think could be a clever kind of opening during today's proceedings. The House managers played, and there was some of this yesterday as well, but but played Donald Trump endorsing and speaking on behalf of Greg Gianforte. That was the Montana congressional candidate who body slammed a journalist from The Guardian, and the long played, you know, clips of Trump saying, knock the crap out of him, at his rallies and that sort of thing. And and there is kind of an argument there to be made that says when Donald Trump wants direct violence, he knows how to say it right. He knows how To say go knock the crap out of them.

0:37:31 Andrew: And so I look like this is how bad they're.

0:37:27 Thomas: Boy that's a heck of an argument, yeah, no. It's actually not a bad argument. Like, it's it's gonna be a heck of a thing to say, look, Trump has directed people to do violence in his name before, and here's what it sounds like when he does that.

0:37:42 Andrew: Yeah. Yeah, and and so I think and again, we have to record this in the middle of the second day's worth of testimony. I think would not surprise me if to kind of shore that up, if the House managers do not also show that alongside, hey, go knock the crap out of them, you will see Trump give these little asides of, I mean, you know, don't don't you know don't nobody get arrested or nothing. Right. Like the kinds of things that that are part of his speech patterns of like, oh, you know, obviously, I mean, peacefully whack the guy. Right. Right. Like it again, it's mob language of people who know that that their words could come back and and and be used against them. And so they'll throw in these asides and juries have to sort through that in real time, in real trials all the time. Right.

But that's going to be the first argument is going to be you can't punish a president for a thing that he said. Right. And the brief ends with, you know, a reference to the Andrew Johnson impeachment. We've actually talked about this, that the 10th article of impeachment for Andrew Johnson was his use of intemperate and scandalous

0:38:13 Thomas: Yeah. Yeah.

0:39:01 Andrew: Harangues. Right. Right. And it said, look, as a matter of history, don't impeach a president over stuff that he says. There was also a lengthy segment on how this does not amount to incitement to riot. And this is I think it's going to be really, really important that the House managers are are clear about this. That's not the standard for high crimes and misdemeanors. Right. We we saw this argument played out during the first impeachment. If I were a prosecutor trying trying to prosecute the case against Donald Trump for 18 U.S.C. 2102 incitement to riot, I don't know that this would be a great case. I feel better about it, you know, now having watched yesterday's presentations. But but there is not, it doesn't rise to the the Brandenburg versus Ohio standard of, you know, yeah.

0:39:51 Thomas: Well, And but but You know, be clear, like, that's just because it's hard, it's difficult to prove mens rea, right? It's difficulty, you know, we both, you and I both, know that Trump wanted this to happen and egg this on, and it happened, but it's a question of like, how do you absolutely prove beyond a shadow of a doubt that somebody, know, because he's able to put in all this language that makes it sound like, oh, maybe there's some plausible deniability in there. But as you say, that's not what we have to prove in an impeachment conviction.

0:40:20 Andrew: It. That, is exactly right, and the idea that you would not use a president's words against him, uh, as the basis for impeachment, um, laughable, right? The example I gave that you heard on, uh, on, on, on cleanup, was right, if the president were to swear undying fealty to the Netherlands, right, or, I, you know, you would say, okay, um, that's a thing, perfectly reasonable for Andrew Torrez to say, not reasonable for somebody who has taken an oath of office, uh, you know, to defend the United States and its constitution against all enemies foreign and domestic.

0:40:56 Thomas: Yeah. The president was like, Big Bang Theory is my favorite show. OK, let's impeach the guy. This is not fit for office. And we all agree on that.

0:40:57 Andrew: Right. Yeah, yeah. Clearly not fit For us. Yeah. Yeah, it. And so what you see is this sort of typical bad early young associate level writing where they've taken a bunch of cases about can you sue an official for, you know, public official for defamation? Or more critically, right, can you ban a public official for, you know, from saying X kinds of categories? Can you get injunctive relief against him? And they've put it under the category of you can't, quote, punish or prohibit elected officials from engaging in speech. And at the end of the day, like, that's not what the impeachment is about, right?

0:41:51 Andrew: The impeachment is not a criminal punishment and it's not a prohibition, right? Like they're not saying Trump can't say, I think the election was stolen from me, right. What they're saying is when a president says something so unbelievably irresponsible and that's coupled with his followers storming the Capitol and killing people that maybe that guy shouldn't ever be president again. That's not a hard argument to make. And think the free speech aspect of this is really going to fall flat for the reasons that we've tried to describe. Once you take that out of the way, you are left with way worse arguments than that. And again, I'm going to read directly from their brief because um, that's it. So next argument, well, you know, the word fight is a metaphor, right? So when Donald Trump said you'd have to fight like hell, he meant, um, fight with your words. He meant, he meant advocate, um, he didn't really mean fight.

0:42:55 Thomas: Well, I hear your tone, but this is a word that politicians use all the time. So like, this is, I'm not saying that they're, they're right in their defense of Trump, but I am saying this is probably the best argument. Like you could, you could play a super cut of like John Kerry saying fight over and over. Cause that was his main, you know, message in 2000, whatever.

0:42:58 Andrew: Yeah, well, their campaign slogan was, I will fight for you.

0:43:17 Thomas: Yeah, exactly. So I feel like this could be, I mean, I would have have wasted less time on the other stupid crap in this brief if it were me. Again, I wouldn't have done it, but I could have done a better job than this guy. But anyway, yeah, this strikes me as not a terrible argument. This would be the best defense is to say, look, this wasn't the intention at all. There are plenty of examples of politicians saying, fight like hell, we're going to fight, blah, blah. Do you evaluate that argument?

0:43:19 Andrew: So you so I I evaluated in two ways. Right. The first is I think, again, the House managers yesterday did a really good job of putting not just if you don't fight like hell, you're not going to have a country anymore, but putting Trump's entire speeches, entire tweets, entire paragraphs up there in context on a a timeline to say, yeah, because, look, it in any kind of, uh, criminal prosecution, you have ambiguity over what speech means, and this is how you show, right, this is, we got, I think, really a master class yesterday in

0:44:03 Thomas: Yeah. Yeah. Apologies, but can I, I just, uh, say something here that just occurred to me, um, I do encourage people to watch this, uh, if you haven't, because was a really excellent way to fight back against the gaslighting that's gone on for four years, you know, because when, when I watched that presentation yesterday, you saw a lot of stuff that we've all normalized in some way, even though we don't agree with it, even though we, you know, we all hate Trump, I get it, you know, but, like, stuff that we've gone through the process of hearing this asshole say these things and it being normalized and nothing happening, you know, like no consequences. It was so refreshing for this, for, well, I guess multiple people yesterday to go up there and say, hey, remember when the president said in July, July, that the election was rigged and was a fake thing in July before it even

0:44:24 Andrew: Yeah. I

0:45:12 Thomas: Happened, remember that, hey, remember this, remember when he said that, and just, it's all stuff we've heard, but, like, get being able to reclaim it and and be able to, like, okay, we get that nothing happened then and there haven't been consequences, but here's chance for consequences, let's re-sum up the case and and kind of rephrase where we've been and put it in a light that's like, actually, this isn't okay, and actually it isn't normal, and actually these things are all, uh, criminal and absolutely, uh, irrational and unreasonable, and it was so refreshing to see that, I found myself multiple times saying, oh, yeah, like, I remember, I was there when that happened, but, like, now I get to be like, oh, yeah, that is awful, you know, we almost couldn't keep up with how awful it all was in the moment because it's so overwhelming, and so, just we're beat over the head with it, you know, like, like the gaslighting.

0:46:02 Thomas: So it was really refreshing to see all those things recast as like, yeah, actually this isn't okay.

0:46:08 Andrew: I agree with that 100%. I really, really do. I think that it's an outstanding point, and it's part of what I'm talking about in the larger context of, yeah, do you know what somebody means when they say, you're going to have to fight like hell, but, you know, we love you and go and be peaceful, right? Right. Like people communicate in ways that are contradictory and capable of of multiple understandings. And if it were the case that every time you said something ambiguous, you could not prosecute or you could not convince a jury to convict, then we would never have convicted anybody of anything ever.

0:46:50 Andrew: Right. Like when the mob boss says, you know, I want you to go peacefully whack that guy. Right. The jury knows he doesn't mean peacefully. He's saying peacefully, like the way that that Trump is stupid enough to do this. Right. We know Trump believes if a lawyer is in the room, it's covered by privilege. Right. Like, you know, the way people will say, well, in my opinion, you're a pedophile. Right. Guess what? Adding the phrase, in My Opinion, doesn't protect you from libel either. Right. Like it is just it's transparent that the that those words, I think, when you watch are being added on as as insurance and and juries can say, like, yeah, we didn't think he meant that part of it. And they do that all the time.

0:46:48 Thomas: Yeah. Yeah, yeah.

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0:50:01 Andrew: So I want to talk about since you think the the fight analogy is the best argument. Let me see if you could do.

0:50:06 Thomas: I want emphasizing that I don't buy it. I'm just saying that would be the best defense, I think.

0:50:09 Andrew: Yeah, yeah, yeah. Yeah. So let me see if you can do a better job than Bruce and Dave on explaining how the president means "fight" with your words. Right. "A closer examination of the text of Mr. Trump's speech reveals that his references to fighting were made in a plainly figurative sense. For example, the metaphor of boxing racing permeated Mr. Trump's speech. He expressly referred to the sport in his speech, associating it with the word fighting. Republicans are constantly fighting like a boxer with his hands tied behind his back." It's like a boxer's. By the way, I want to point out the fact that this brief has to quote extensively from Donald Trump and that even they have to make extensive use of ellipses and brackets because, like, you know, we had a subliterate moron as president it for four years. But anyway, there we go. There's your first argument. He would say, you know, it's like a boxer and a boxer fights with his punches, but like a boxers. How how does that argument strike you?

0:50:55 Thomas: Yeah I don-

0:51:13 Andrew: It's a simile.

0:51:13 Thomas: Yeah I- I Mean that's a weird way of putting it. Like, wouldn't you just be like, "Yeah, it doesn't mean literally fi-" I- my strategy, if I, I were them, as I already said, I would just find every clip I could of liberal politicians using the word "fight," and it wouldn't, it would be bs and I'm surprised they haven't already done this. And maybe they have, yeah.

0:51:30 Andrew: Yeah, I'm sure. I think they will. I think they well, I think that's

0:51:33 Thomas: Like that would be my, that's that's how I would do it. I'm just saying, yeah.

0:51:33 Andrew: Right. Yeah Yeah. So that was argument number one. That's page 52 of their brief. Argument number two is, well, look, he said Jim Jordan was fighting. And then they quote this sentence about Jim Jordan. Quote, there's so many weak. This is Trump talking about Jordan. There's so Many weak Republicans. We have great ones. Jim Jordan and some of these guys, they're out there fighting the House. Guys are fighting, but it's incredible.

0:51:59 Thomas: I think that's, that's not a terrible argument. It's like, yeah, he didn't think Jim Jordan was literally storming the capitol.

0:52:02 Andrew: Yep. Was literally Jim Jordan Was not punching any of his fellow representatives. Okay. All right. Right. Well, that gets Thomas's seal of approval. Trump used the word fight in the sense of forceful argument and combined it with a plainly nonviolent request. He sought to change in the occupants of Congress through future primary elections, not through violence.

0:52:05 Thomas: Yeah. Nah,

0:52:27 Andrew: I

0:52:26 Thomas: Yeah, see, like, I, so I, on one hand, again, we're playing chess, us against ourselves, or like checkers. But on one hand, yeah, I think that is the best argument to say, you know, he's, Jim Jordan's not literally fighting, so it's a metaphor. The other side of it, I would think. And what do you think is the best response? I would say, look, he is talking to a crowd of people gathered before January 6th in which there is nothing left to do. It's not like you're saying fight, oh, I just mean metaphorically fight. There's no metaphorical fight left in in in this argument. Like, he's lost, and the only logical interpretation is combine it with the the evidence of Trump undermining this election for six months before it even happened, uh, the onlyological conclusion that many of these rioters came to and terrorists came to was, uh, we have to fight right now, this is our last chance to stop this, the stealing of our country.

0:53:20 Andrew: Bifurcate it even more so. Right. Because this is January 6th. This is the certification of the electoral votes. And so it makes perfect sense that Trump would say to people who have the ability to stop it because they're in government, to Mike Pence, to Tommy Tuberville, hey, I want you to stop them from counting the electoral votes, you know, with procedures and motions and stuff. But when you deliver the same argument to a crowd, the only or the only thing that they can do is go is do what they did. Go out.

0:53:51 Thomas: Yeah. Yeah. Right. Yeah, I was trying to make... Yeah, there's nothing... There's no fight to be had for them. There's nothing they can do other than literally go storm the Capitol.

0:54:00 Andrew: Yeah. Yeah, you so you could say, right. Trump means Trump is a complex person, scarily enough. And he means one thing when he says fight to Tommy Tuberville. He means, yeah, Tommy Tuperville isn't going to, you know, take a flag and impale somebody with it. Probably he means you make a dumb procedural motion. Right. And but when he means, you know, in front of a crowd of other people he, by definition, right, if he is seeking some kind, like, take their words, right, their words is he is using "fight" in the sense of forceful argument combined with a non-violent request, right.

0:54:22 Thomas: Yeah, not yet. We'll see.

0:54:44 Thomas: Yeah.

0:54:44 Andrew: He sought a change in the occupants of Congress through future primary elections, the there is no other request that he is making of of this crowd, right, he's saying if you don't fight like hell you won't have a country anymore. Well, what else could they do? And um and and I think that that's

0:54:51 Thomas: Yeah. Yep. And you know how I know that that's the only logical conclusion is a bunch of people went and did a riot and stormed the Capitol and did it, buncha stuff like right after... Directly after that. Uh,

0:55:09 Andrew: Yeah yeah, that is that is exactly right, you get past fight, there are some process arguments and you're going to hear these right. Right. We've talked, that we flagged this already. Right. That it isn't a crime. So, you know, if you think he's done a crime, then go arrest him, because he's a private, you know, that kind of crap. But the only other argument that's in here is on page fifty five. And that is the. Oh, come on. I mean, it's not like it's Trump's fault that his followers are crazy. Right? And and and and here's.

0:55:39 Thomas: I mean it is but yeah

0:55:42 Andrew: Well, it is right. I mean, that's the thing. Here's what it says. What matters is the objective meaning of the words. Courts do not deem speech unprotected based on how it could possibly be contorted or misunderstood by an unreasonable listener. Rather, they engage in an objective inquiry to determine how a reasonable person would understand the words. Otherwise, speakers at public events would be put at the mercy of unhinged reactions of their most unreasonable audience members. That is not entirely a true restatement of the law. It it certainly is true when you are talking about that that contains mixed messages and and the principle here gets Jacob Elise versus Ohio. Ohio. But but but the idea is if

0:55:43 Thomas: Well it's like we don't hold Jody Foster accountable for that one guy who tried to kill Reagan, right, like stuff like that check

0:56:35 Andrew: Yeah. Yeah, yes, exactly right. You must be aligned in order to be held criminally liable for incitement to riot. You most be intellectually aligned with your audience. Right. That is you. You you intend to have the right. That's the the thing, right, it it is you you you use the objective meaning of words to ascertain where there is a where there is amiss a potential for misunderstanding, but this is again why the Democrats spent so much time on Wednesday's presentation detailing Donald Trump's association with the Proud Boys and with, you know, all of these other crazy right-wing neo-Nazi organizations. To To know that this is not just like, oh, well, who could have possibly known that unhinged white nationalist conspiracy theorists had gathered outside the White House? Well, Donald Trump knew that

0:56:51 Thomas: Check check got it yeah yeah

0:57:35 Andrew: Uninged conspiracy theorist white nationalists had scattered outside the white house. And so you look at how was the message intended to its audience and how would a reasonable member of that audience? And boy, don't ask me how I would figure out a reasonable QAnon supporter. Right. But but how would a reasonable member of that audience interpret those words?

0:57:50 Thomas: That's a boy Boy. Well, OK. That's actually interesting. And I, we don't have time. But, like, yeah, if I walk into an asylum and I say, you know, it's, and I say a bunch of stuff, you know, it's hard to be like, well, come on, those people, you know, they're there, they're not all there, like, yeah. But also you you were, that you gathered them there, like you, you're kind of, so there's a different standard depending on who, it's not just an average rational person in the world, it's based on an average rational person of the group you're talking to, which is really interesting. That makes a lot of sense to me. Do I have that right?

0:58:33 Andrew: Yeah, you have that exactly right. And look, not a lot of cases draw that distinction because usually politicians are talking to America. Right, they're talking to a cross-section, and so you would just say, like, how would, in order, but but but absolutely, 100%, in the context of narrow speech directed at a particular audience, you ask how would a hypothetical reasonable member of that audience have interpreted that speech, and and Thomas, like, that's it, these are the arguments we're gonna get, over this, this drops Friday morning, Friday and Saturday, we're gonna get free speech, you know, my freedoms, uh, he said peaceful and, fight can be a metaphor, and, uh, and these people were just crazy, and then everything else we get is going to be hand-waving, um, I know that we're going to get, well, you you know, Antifa was out here, but but everything that doesn't have to do with Donald Trump is going going to fall into those categories, free speech, he said peaceful, fight is just a metaphor, and, you know, that guy with the bullhorns, like, how crazy is that, um, and that's it, and so when you ask me, uh, how do I think it's going, and where I don't, maybe we don't get to a conviction, but I think the people thinking that, um, you're gonna hold the line on arguments that bad, right, like... Like, look, we covered Ukraine.

0:58:38 Thomas: Yeah. Yeah.

0:59:04 Thomas: That's it.

0:59:58 Andrew: We covered the first impeachment. We covered how those arguments were not good, but they were several orders of magnitude better than these arguments, in my view.

1:00:10 Thomas: All right. Well, there you have it. Again, I do encourage you watching at least the brilliant for conviction. I don't know if I'm going to watch the defense. That is that's something only Andrew could love but but

1:00:22 Andrew: I watch it, so you don't have to.

1:00:25 Thomas: The way shout out to Stacey Plaskett who I believe is the representative from the Virgin Islands. Is that, do I have that right? That's an interesting way that our government works. Like they're not a state, but they get to have rep. Well, it's good. They get to have reps, but Hey, let's make them a state.

1:00:31 Andrew: Yep. Yep, you do. But but again, non non non voting in the same way that.

1:00:41 Thomas: Right, right, right. It's kind of interesting thing, but anyway, she nailed it. She was amazing. Shout out there. That was worth the price of admission right there alone. If you're going to watch it. All right, I will just close that by saying I still will take any odds Andrew will give me that he will not be convicted, but that's okay. We'll leave, I'm a negatron, he's positron, whatever the other guy is, and we'll live it there.

1:00:42 Andrew: Yeah.

1:01:04 Clip: And thank you, Let's go!

1:01:06 Andrew: Thank

1:01:06 Thomas: Alright, and now it's time to thank our new patrons, patreon.com/law, uh, and I will start us off. Thank you so much, Game Jumper X, Donna A. I know I said I would read all patreon names last Q&A, but I refuse to read this one. Chris Gordon, uh, some weird symbols, Jacob Culver, MB, Cassandra Zeemer, and Chris Ruddles. Your turn, and Andrew.

1:01:30 Andrew: You To, I lost the game, sorry about that, R Mortimer, David Heath, Daniel Belusi, Paul Suggett, the Reverend Lloyd, with special guests James, Tom, and Alex. Well, great. King Torm and Andrew inspired me to go into law, and Ted Cruz taught me it. Can't be that hard. Well, well, those are two good lessons to learn. Thank you all so much for supporting the show over at patreon.com/law. A little as a buck an episode, you get all sorts of great goodies.

1:02:01 Thomas: Nice. And A lot of movies coming right at you very Soon.

1:02:05 Andrew: Can't wait.

1:02:05 Thomas: Well, then we got to schedule that. In fact, so.

1:02:07 Andrew: We do indeed.

1:02:08 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:02:14 Thomas: Right, Andrew, it is time for T3BE, not pork test, well, uh, to be determined whether this is a pork test. We finished that pork selection of 10 hardest prank bar questions to prank your poor co-host who's just trying to to, you like, find his way in the law world. Well, we've got a new source. Let's see how this one goes.

1:02:33 Andrew: All Right, Thomas. A father lived with his son, who was an alcoholic. When drunk, the son often became violent and physically abused his Father. Yeah.

1:02:43 Thomas: Okay. Still dark as hell though. Okay, all right. But that's the bar for you.

1:02:45 Andrew: As A result, the father always lived in fear. One night, the father heard his son on the front stoop making loud, obscene remarks. The father was certain that the son was drunk, and he was terrified that he would be physically beaten again. Again, I know, but

1:03:01 Thomas: Jesus Christ, man. What the hell? All right. I suppose we have laws for a lot of very bad things, so you got to quiz people on those things. Got it.

1:03:08 Andrew: Yeah, yeah. Yep. All right. The father was certain that the son was drunk and was terrified he would be physically beaten again. In his fear, he bolted the front door and took out a revolver. When the son discovered that the door was bolted, he kicked it down. As the son burst through the front door, the father shot him four times in the chest, killing him. In fact, the son was not under the influence of alcohol or any drug and did not intend to harm his father. At trial, the Father presented on the above facts and asked the judge to instruct the jury on self-defense. How should the judge instruct the judge with respect to self-defence? Yep.

1:03:52 Andrew: A. Give the self-defense instruction because it expresses the defense's theory of the case. B. Give the self defense instruction because the evidence is sufficient to raise the defense. C. Deny the self- defense instruction, because the father was not in imminent danger of the son from his son. Or D. Denied the self defence instruction because of father used excessive force.

1:03:50 Thomas: Boy, that's interesting. This is a tough question, but I like it. It's an interesting one. So it seems to be, and these are always the hardest this once. I, you know, we've had a few of these that are like, how, how should the jury instruction go? You know? And it's, it's sort of a meta law question. You know, I already don't know the law, but now I have to know like how the judge should instruct the jury on a thing. So it's like a rulesy thing, federal rules of something or other, whatever. I don't Know. Anyway. Case to make, I guess the issue you're getting down to is, even though it sounds like in point of fact, I don't know how they know this, but in fact, the son was not under the influence. Well, that I get, but the did not intend harm to his father. I don't how you know that. I mean, the sun is dead. So how do anyway, but taking that for granted, can you still make an argument of self-defense and how will the judge actually, how is the judge allowed to instruct them?

1:05:08 Thomas: Like, is the judge allowed to butt in there and be like, well, sorry, that's already such a bad argument that I'm not even going to instruct the jury on self-defense. I feel like, okay, so just intuition time. I feel this is the kind of thing where you want to give as much leeway as you can, but also sometimes there's these weird rules where it's like, yeah, this will prejudice them too much if you blah, blah, bla. But I think if we're talking about a judge giving instructions, I feel you would want to leave that as open as possible because you don't want to prejudice a a case, you know, like I, man, this is hard. I can see an argument for every answer. Um, the judge, how, so the question is how should the judge instruct the jury with respect to self-defense. A is give the self-defence instruction because it expresses the defense's theory of the case. Very plausible answer.

1:05:53 Thomas: You know, that's like the judge is not there to like stop the defense before you give it. The judge can say, here's, you Know, the theory on self-defeat or whatever. Here's how self-defense is supposed to go. Uh, because it's their theory of the case that that's totally plausible. B give the self-defence instruction because the evidence is sufficient to raise the defense. Now that's interesting. So that's sort of making, that's like making a decision on it. That's decided. That means the judge can only do it because he's decided that the, the, that you're allowed to, I don't know if I would like that one as much. Match. Um, maybe, but I, I don't, oh God, so hard. I don'T think I like it. So that would, that would tell you that, you know, if you're trying to argue self-defense in a case where it's like a guy just walked up and shot a guy, you Know, for no reason, can the, can the defense be like, well, we're going to make a case for self-defence judge.

1:06:47 Thomas: Can you instruct the jury? And then the judge is like, nah, man, I'm not even, we'Re not even close close to self-defense. I'm not doing it. Maybe that's how it goes. I don't know. See, deny the self- defense instruction because the father was not in imminent danger from his son. Yeah, maybe, but I feel like you would want to leave room to make that argument, or at least you would want to make the argument that the father believed, you know, had a reasonable belief that he was in imminent dangerous. That's how I think you would defend the father's actions. Like he He had a reasonable. So I think I'm leaning away from C because I don't you know, I don'T think the judge should be making that call. Yeah, I think that should be the jury deciding. Maybe D denied the self-defense instruction because the father used excessive force.

1:07:33 Thomas: That maybe maybe D because like if you know you just shoot a guy four times in the chat. Well, I know the sun burst through the door. Or, definitely it is excessive force, but still, is this within the realm of, like, you can make the argument a trial, maybe?

1:07:53 Thomas: So, I could see an argument for D. I think I'm between A and D. It's kind of a weird division, but I think it's either, yeah, give the self-defense instruction because it expresses the defense's theory, sure. Or D, like... No, you're too far... You know, you've used excessive force so you don't even get to make that argument. You don't even get to have the judge instruct. And this is where I don't know, like this is, if it's the pork test, I think it's D. If it's not a pork test then I think this could just be an A, like, yeah, fine, give the self-defense instruction because that's what they're going to try to argue. Or if it is really porked, it's one of the other ones. Okay. Well, I like this question at least even though I'm going to get it wrong. I think think there's some amount of argument or some room to be able to argue that this wasn't excessive force if he was really scared for his life because of this past stuff.

1:08:45 Thomas: I'm going to go with A, but I'm not happy about it. I think it could be another answer, but I am going to go with A, final answer.

1:08:51 Andrew: All right. Right, and if you want to play along with Thomas, you know how to do that. A brand new test, uh, possibly not porked, so, uh.

1:08:59 Thomas: Porkage.

1:08:59 Andrew: Get.

1:08:59 Thomas: To be determined.

1:09:00 Andrew: Out there. Porkage TBD. Uh, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your answer, your reasons therefore, we will pick a winner and shower that person with never-ending fame and fortune. Fame and fortune not guaranteed.

1:09:15 Thomas: Right, that's our show. Thanks so much for listening. And reminder, hey, come hang out on that Stereo app every Wednesday at 5 p.m. Pacific, 8 Eastern. It's a lot of fun. Uh, we had even more, yet we had moderation, so we had a real, only real questions this time, and uh, we'll only get better and better at that. Come join us every week. Thanks for listening. And we'll see you for, Trump a free Tuesday. Can't wait.

1:09:37 Andrew: Can't wait!

1:09:38 Clip: He's not even a lawyer and he's kicking your ass.

1:10:11 Clip: This podcast is a production of Opening Arguments Media, LLC. All rights reserved. It is produced with the assistance of transcriptionist Heather Loveridge, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Deborah Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki. Follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Argiments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.