OA528: Disgraced Ex-President Sues Niece Mary Trump

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 528. I'm Thomas. That's the lawyer Andrew. How you doing, Lawyer Andrew?

0:01:25 Andrew: Well, speaking as a lawyer, I am acceptable. Speaking as Andrew, I'm fantastic. How are you, Thomas?

0:01:31 Thomas: Oh, interesting. I'll have to figure out the difference there. Is it just that lawyers are typically not as gotcha?

0:01:36 Andrew: I'd have to be measured, and I would not want to overly color with an inappropriate opinion into my factual testimony.

0:01:41 Thomas: Yeah. Hmm. Okay. I like it. You're a pro. That,

0:01:49 Andrew: Of course.

0:01:49 Thomas: That's great. But Andrew's fantastic, as always. Uh, well, couple little announcements before we get going today to

0:01:54 Andrew: I So let's get the newsy one out of the way. We have been telling you that the case that the Supreme Court granted certiorari in over the summer that we flagged as being their vehicle to overturn Roe v. Wade is a case called Dobbs v. Jackson Women's Health Center. That challenges the Mississippi abortion ban, which kicks in after 16 weeks that law is stayed. And we have been telling you that that that case was on the Supreme Court's docket, fully briefed, but not yet calendared for oral argument. The news dropped this week that it will, in fact, be scheduled for oral agreement on December 1st. A bunch of outlets were sort of reporting this as like, you know, as if this were a new cert grant or whatever.

0:02:48 Andrew: So if you have seen abortion case to be heard on December 1, that is the Dobbs case. It's the one we've been telling you about. We were just waiting for it to go on the calendar, and now it has.

0:03:00 Thomas: Clarify, the only reason for all the delay in this is just the court and Roberts' timing when they're going to take away, you reproductive health rights, right? Isn't that is there any reason it's been that they just decide, like, okay, now, I woke up today, is the strategically the time that I think we, we should take away abortion rights?

0:03:11 Andrew: Correct. And yeah, And let's layer another strategic consideration on top of that. John Roberts, institutionalist, he knows this decision is not going to be popular, is not going to reflect well on his court. And so he has scheduled it to be among the latest oral arguments that the Supreme Court will hear this term. It means that, you then spend several months kind of hand wringing and, polling among the justices before assigning someone to write the majority opinion and going back and forth. So what this means is this pushes out kind of as long as possible to until the end of the term when we're going to get the Supreme Court's ruling in this case, but doesn't change in, in my view, in the slightest, you know, what we're looking at, right, which is we're looking at a 6-3 majority that is going to overturn Roe versus Wade. You know, John Roberts will write a solemn concurrence, but I don't think, I will be shocked.

0:04:08 Thomas: Yeah.

0:04:19 Thomas: Or what if he dissented? Because his

0:04:23 Andrew: Go ahead.

0:04:23 Thomas: Whole plan was to just slowly chip away at it without hopefully anybody noticing, but effectively taking away abortion rights and by these states already having the most restrictive laws, but not technically having overturned Roe. So what if He would take the opportunity to be like, like, you know, well, it's not going to make a difference anyway. I'm going to dissent on this one. I don't know.

0:04:46 Andrew: You could, although remember that in Dobbs, the question is whether all restrictions on pre-viability abortions are unconstitutional. That's Planned Parenthood versus Casey. It says any effort to ban abortion pre-viability, which is about 24 weeks now, is unconstitutional. And so the sole question that is teed up is 16 is before 24. We can do math. Is that still the rule? And so if you wanted to preserve kind of the Roberts right, which I think you I think you have correctly described, which would be to say, well, you know, when we said X in Planned Parenthood versus Casey, we didn't really mean X. We meant the opposite of that. Right.

Like you would say and and this is what I predict will happen. You will write a short concurrence to say uh Roberts, CJ, concurring in the in the judgment, uh, it is my view that uh the statute here, which prohibits abortions uh after 16 weeks, uh, does not constitute an undue burden uh as that uh was set forth in Planned Parenthood versus Casey for that right yeah yeah well, because of all the reasons they've chipped away at already, right like the the the burden can be weighed against the benefit and right. All of that kind of nonsense. And so, you know, we'll say for for those reasons. You I join in, in the judgment, uh, but not the court's majority opinion.

0:05:16 Thomas: Yeah. Yeah, Because nothing is an undue burden according to us. Yeah yeah.

0:06:16 Thomas: Gotcha. Yeah that makes sense. Oh boy. Well, that's that sucks. So it's

0:06:21 Andrew: That was a bad piece of news, but yeah, but it's this is not a new case that's come in. So, So, uh,

0:06:23 Thomas: It's if we're going to. Yeah, no, good to know. We've been, I mean, you've, you've had your eye on this for a long time, you said December 1st, so I, when do we start putting on the, you know, the friggin Handmaid's Tale outfits, you know, like when does the decision come in?

0:06:38 Andrew: Probably summer 2022, but again, if you, you live in Texas, you better have them on now. Right.

0:06:42 Thomas: Right yeah, but that's another thing, but that they can, they can that time the however they want strategically, right? There's no, there's not like mandated calendar of anything, is there? Okay.

0:06:55 Andrew: Absolutely correct. That, that, that there is no mandated calendar. In very rare cases, You can actually hold over from term to term. And the way in which you would do that is, you know, if, uh. The justices are, are still unsettled. Right. Right. And, you know, this is this is going to be a big challenge for Roberts to see how long he can delay it. Right. Because you have five howler monkeys who want to rule on this opinion right away. Right. The folks who, you refused to grant an injunction to stop the obviously unconstitutional SB8 from going into effect.

They appear to firmly believe that a fertilized zygote is a full human being and every day that they fail to act, that murder, bloody murder is occurring across the country. And so, yeah, they're going to be pushing to get it out as quickly as possible. How long Roberts gets to push them back is kind of a test of, you his influence among the conservative wing. So I will be watching that as a law geek because I'm a law geek. But as a human being, as somebody who cares about reproductive rights, you know, yeah it's it's a foregone conclusion.

0:06:56 Thomas: Yeah oh Boy, well, that all sucks, Andrew, um, glad we got that out of the way yeah, let's, geez, uh, in other news, yes, we will feature a full-length Weird Al episode so that we, we could give this issue the time it deserves, nerves.

0:08:17 Andrew: Yeah, well here's something that doesn't suck.

0:08:30 Andrew: I I have never seen, because, you know, I mean, this was just an off-the-cuff moment. We were kind of riffing about parody. You mentioned and I said, I think incorrectly, that you were not a big Weird Al fan. Then you said, I think there should just be a mandatory system in place that requires a apparatus to split the any revenues with the original artist, um, and, oh, my

0:08:45 Thomas: Yeah, that's fine.

0:08:59 Thomas: Tune in Tuesday to find out because we got so many comments. Lots of people saying that's already how it works. Other people saying it's not how it looks. Other people saying, but he gets permission, which has nothing to do with anything, which we said, yeah, which we also already said on the show. So that was that was fun. But anyway, all that and more. I'm actually really excited to learn. Andrew has done a deep dive, which I think involved more than than just putting on your favorite Weird Al album, right?

0:09:01 Andrew: Gosh, yeah, which we said on the show by the way it'll be fun oh

0:09:26 Thomas: Well, that'll be fun. And now it's time for a bunch of Trump news. What a blast from the past.

0:09:26 Andrew: Yeah, although

0:09:33 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or no? I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:09:51 Andrew: We never, we're never going to be free of this guy. But this was, this was a pretty big week in Trump news. So we got a couple of stories under here. The first is the just-filed lawsuit by Donald Trump against his niece, Mary Trump, against the New York Times and against their reporters and against John Doe corporations, corporations.

0:10:15 Thomas: Prediction time, Andrew. If I know Donald J. Trump, who we covered for all that time, what felt like an attorney. This is a well-written lawsuit by an expert attorney in the field, which you'll end up saying has a strong chance of success, right?

0:10:28 Andrew: Let's see. All right. As you know, so This lawsuit is in connection with the New York Times story that used his niece, Mary Trump, as a source regarding the valuation of Trump real estate. Right. Yeah. This is the big one.

0:10:33 Thomas: Okay. Oh yeah. Bombshell story. Yeah.

0:10:49 Andrew: Yeah. And this directly led to, as far as we can tell, the Manhattan D.A.'s office investigation, criminal indictment into Allen Weisselberg and the Trump org and likely future criminal indictments into Donald Trump himself regarding real estate fraud. Right.

0:11:06 Thomas: Really? Are we still holding out hope for something like that?

0:11:08 Andrew: I'm still holding out hope for that. That grand jury is impaneled all the way through till either November or December. There was no point in I don't want to say no point in going after Alan Weisselberg, the way you did, but everything they did with respect to Weisselberg, right, the CFO, the guy who knows where all the bodies are buried, everything they did in connection with Weisselberg, to me, suggests a squeeze, right?

0:11:10 Thomas: All right. All

0:11:33 Andrew: Suggests, an yep, effort to, and we actually talk about updates in the Weisselberg case on Wednesday's, yesterday's cleanup on aisle 45. that. So you can double down on Trump-Weisselberg real estate-y goodness. This lawsuit, going to do our reading it backwards, I but am going to skip to the punchline first, which is in a lawsuit that requests $100 million of relief that lays out seven separate causes of action, all of which is in connection with the New York Times reporting on real estate. I want to tell you 27 page complaint, 152 paragraphs, does not contain a single paragraph that even alleges that any part of that story was false. So, you know, to me, that's what I would be leading with.

0:11:33 Thomas: Right, wow. Yeah,

0:12:27 Andrew: News coverage kind of hasn't gone there yet. Yet. So this is why you listen to opening arguments. But as always, we read these complaints backwards. So let's let's start at the end. Who's representing Donald Trump now?

0:12:27 Thomas: Yeah. All Right. Roll the wheel.

0:12:41 Andrew: Oh, the wheel of lawyers. So it is a woman named Alina Habba of the law firm Habba, Madeo and Associates in Bedminster, New Jersey.

0:12:53 Thomas: So just a golfing buddy, I guess, I, somebody chatted him up on the uh, the ninth hole, was. And I, I sometimes wonder, and I, this will be the question I have in mind as you go through it, do these lawyers know better and are just draining Trump of money, you or are the lawyers as dumb as Trump? That's what I want to know, I

0:12:55 Andrew: Could be.

0:13:09 Andrew: So in this case, I think that this is a lawyer who probably knows better. Right. Right. So Habba Madeo and Associates is a business dispute commercial litigation firm. But it's a really, really small firm. Alina Habba is admitted in New York. Do commercial litigation. They also do insurance defense. They do real estate, residential and commercial and entertainment structure litigation and counseling. Again, slightly bigger than my firm, uh, but only slightly. And you asked me, you would I represent, yeah, if Barack Obama needed to sue Fox news and came to me, I would say with all due respect, Mr. President, uh I would, uh I'd be happy to remain, uh a co-counsel in in this case, but we're going to need more resources. We're going to need a bigger boat.

0:13:51 Thomas: Think Morgan would be, are you kidding me, I'll take it, we'll take the case

0:14:07 Andrew: Yeah. Yeah, Morgan, on the other hand, it all depends on who answers the phone first. Alina Habba appears to be a perfectly qualified attorney for what she does. She was on the Rising Stars super lawyers list. That's a list that I've been on, She handles business dispute cases. She's a member of the American Bar Association. This isn't Sidney Powell, right? This is not a lunatic. She serves on the board of what what appears to be a moderate pro-life organization called Birth Haven, right? Birth Haven is, uh, self-described as we provide a safe and nurturing environment in which to carry an unexpected pregnancy to term. So, all right, probably a pro-life organization. Um, but the, the very first thing you see on their about page is Birth Haven isn't independent non-sectarian, non-profit organization that provides shelter, support, and education for homeless pregnant women and girls.

0:14:13 Thomas: Yeah

0:15:08 Andrew: Established in 1985, Birth Haven is a 501c3 that supports pregnant girls and young women throughout the state of New Jersey and the surrounding tri-state area. It operates a transitional living facility in Newton, New Jersey can house nine mothers and their babies at any given time. Most residents are between the ages of 17 and 21 and represent the fullest diversity in race, ethnicity, religious beliefs, and life circumstances.

0:15:32 Thomas: That's all pro-life. Was if that was all the pro-lifemovement was, was, hey, if you don't want to get an abortion, we'll help you. Like, well, if you, if you feel like you've been pressured by life circumstances to get an abortion that you wouldn't otherwise want to get, will help you. If that was all pro life was, I'd be like, yeah, okay, sure, yeah, all right. But, but unfortunately that's not all it is.

0:15:52 Andrew: If you've been pressured by us, right, is the way most of them work. So if, you know, more about this outfit, please feel free to write in. You understand if you listen to the show that we We are 100 percent pro choice. So I'm not I'm not white. I'm not suggesting that we listen to this organization or, you know, God forbid that you give them any money or anything like that. What I am saying is the very first thing I did when I read the lawsuit was look up Alina Haba and say, is this a crack and want to be right? Is this somebody that we just haven't heard of before? Like a Stephanie Juntilla, who nevertheless has drunk Drunk the Kool-Aid. And it doesn't seem like it. Right? This does not seem like a crazy person. So if you're not a crazy person, what are you? Well, you're somebody who is willing to cash a check.

0:15:54 Thomas: Yeah, exactly. Hmm.

0:16:38 Thomas: Interesting. Yeah.

0:16:47 Andrew: Congratulations. So these

0:16:47 Thomas: Those are the two types of people in the world who represent

0:16:51 Andrew: Are the two types of people that represent Donald Trump.

0:16:53 Thomas: Trump. Yeah?

0:16:54 Andrew: Yeah. Crazy person or willing to cash a check. So now we look up and we go through the respective causes of action. And again, this is being described in the press as a lawsuit against the New York Times and Mary Trump. It's actually the other way around. This is a lawsuit against Mary Trump that then implicates the New York Times. To And make that clear, I'm actually going to break with our usual backwards because there is one predicate fact that you need to understand, and that is set forth in in paragraph two of the complaint. So we're going to go, I know, a break from usual course of events, but we're gonna go back and establish that predicate allegation, which is a group of journalists with the New York Times in the middle of an extensive crusade to obtain Donald J.

0:16:56 Thomas: Yeah.

0:17:49 Andrew: Trump's confidential tax records, relentlessly sought out his niece, Mary L. Trump, and convinced her to smuggle the records out of her attorney's office and turn them over to the Times. All the while, the parties knew full well that their actions were wrongful, as evidenced by their insistence on communicating through burner phones and the Times' initial claims that the records were obtained from an anonymous source. So the allegation is in 1981, a condition of the disposition of the Fred Trump estate, right, which was probated in 1999, the parties signed a settlement agreement. Right. Because that's what Trump does. And that, of course, that settlement agreement contained a confidentiality and sealing of records clause, which and again, I have to read paragraph 26 to you here says the settlement agreement contains a section called confidentiality and sealing of records, which spans five pages in length and sets forth in detail the confidentiality and nondisclosure obligations that the parties thereto are bound by. And boy, isn't that just Trump in a nutshell, right? Like it, I, I have written, contracts with, with nonddisclosure clauses in them. Um, that's a paragraph, right.

0:19:10 Thomas: Geez.

0:19:12 Andrew: Uh, five pages is, you know, a stormy Daniels level, like, no, you cannot do this and you cannot do that. And if you do, we will go immediately to sealed arbitration, right? Which is what he tried to put into place in the Stormy Daniels NDA, right. I fell, I fell prey to the, to the very thing we corrected on the air in the Stormy Daniels settlement agreement, which contained an NDA. So is the gravamen of each and every one of these causes of action. It was, hey, when our dad died, we went to probate. There was a lawsuit that got settled. We all agreed.

0:19:17 Thomas: Yeah yeah.

0:19:52 Thomas: To not talk about the crime that we did. Yeah I

0:19:52 Andrew: And yeah, and you're immediately discovering the linchpin of why this particular lawsuit, I think, is not really headed towards the winner's circle. We'll get there in a minute.

0:20:06 Thomas: Mean is this a usual thing like when your parent dies and and you divide out the thing, you're like, sworn to secrecy of what went on today. Like, is that normally a secretive procedure? Or would it just be like, oh yeah, we divided up the stuff, or however the will said, I don't know.

0:20:21 Andrew: As someone who does not practice trust in estates law, but as somebody who has had family members die, I've never seen this.

0:20:30 Thomas: Seems weird.

0:20:31 Andrew: Seems a little weird. You could have limited NDAs for things like, confidential you work secrets, right. Confidential business practices and information, right, like every time, you Kentucky fried chicken orders some more spices from McCormick's, right like you know you have a little NDA that says now you can't tell anyone what the 11 herbs and spices are, Right. Sure. OK. But that's not what these are. These are global gag orders in perpetuity throughout the universe that are not connected to the kinds of reasons that you otherwise think justify, you "OK, nobody can talk about this." Right. And usually you effectuate even those kinds of purposes through more limited devices. Right. Like through something like a non disparagement clause. Right. So when you ask me, "How common is this in, you know, disposing of, you know, your father's estate?" Of course, that's not common at all. But but nothing about the way Donald Trump uses NDAs is a pro- is inherently appropriate.

0:20:50 Thomas: Yeah.

0:21:35 Andrew: He's a crime boss. That is exactly right. OK. So, um, all of this lawsuit is about the NDA and we can cut to the, to the punchline, the two punchlines, um. Which are number one, um this lawsuit does not attach the contract to which it refers and quotes at great length. Uh, yeah, that's exactly right. And there is a rule in pleading that is called the four corners rule. And it goes something like this. It says, when you move to dismiss, as opposed to moving for summary judgment, you are confined to the allegations that are contained within the four quarters of the complaint. And the idea was that the corners of the page that it's written on.

0:21:52 Thomas: That doesn't seem good. How would we evaluate that.

0:22:23 Thomas: I'm going to use hexagonal paper and just blow their whole system to shreds.

0:22:24 Andrew: Yeah, everyone take out a circle of paper and your safety pencil. Is a well-established body of case law that says, yeah. When you sue on a contract and you make repeated references to the contract, that contract is considered incorporated into the four corners of The Complaint. And I would add because they are obviously like that. That is sort of the next step is, you if I were Mary Trump in The New York Times, I'd be like, all right, we are moving to dismiss and we are attaching the the actual document. Right. The complaint.

And we're not going to file it under seal. We're going to fill it publicly so that everyone can see what this document is. And by the way, Donald Trump, you've waived your right to argue that the document itself should be kept confidential because you quote extensively from it in the document. How can we possibly respond without revealing that public? So you know it's a good point. But if you Know what it is, right, then the courts do not look favorably on, you know, when you pretend like, well, this could be any document I signed on April 12 1981. 81. They're like, come

0:22:30 Thomas: Yeah.

0:23:20 Thomas: Do you even need to do that? Couldn't you just say, Hey, this is not supported by, you don't, you no.

0:23:33 Thomas: Oh, okay. Well, I just, no, I mean in in a motion to dismiss if if you're saying they're this four corners rule couldn't they just be like we're motion dismissed because they didn't follow even follow that rule or do you have to produce the document that they didn, okay

0:23:51 Andrew: On. No, yeah. What it is is it is not that you are required to attach it as an affirmative pleading obligation. It is in moving to dismiss. You are entitled as the party moving to to rely on it, even though it is Not technically within those four corners. Yeah. So so now there may be if if I were representing Mary Trump, I think we would probably a motion with with respect to how to file that document. Right. Preliminarily, just for a caution, right, for utmost caution. But he'd be on pretty solid ground to just attach it. Right. And then, you know, oops, I'll go back and redact it after. Oh, I'm sorry. Well, you look like you refer you quoted it all the time. You know, we thought obviously, you So we'll see. That would be the more hardball litigation technique would be to just attach it to your motion to dismiss. So as I've said, this is really a lawsuit against Mary Trump.

0:24:07 Thomas: Gotcha

0:24:53 Andrew: So first cause of action is breach of contract. Can we evaluate that breach of contact? Contract, not without looking at the contract. So second cause of action, breach of the implied covenant of good faith and fair dealing. Right. And it says, well,

0:24:58 Thomas: Yeah yeah Trump Trump's just a victim of other people uh breaking the just good faith feeling of law, just poor Trump. He's just trying to make an honest buck in this world and other people are screwing him over.

0:25:19 Andrew: It, it kind of does say that it says right. It says, okay, under New York law, every contract has an impaired, has an implied covenant of, of a duty of good faithfulness. Fair dealing that's true by the way. Right? Like Like, again, usually we're talking about that in the commercial context, right? And that's to cover things like, you a, oh, I'm sorry, the card says the moops kind of Interpretation, you a hyper literal way, right. Like, you into appliance store and say, "Do you have a lawnmower that I can look at?" And the salesman says, "No, we do not have a lawnmower," you know, meaning we have seven lawnmowers back there, right. Like, no, come on. And so it says, yeah, you've got an implied duty of good faith and fair dealing.

In accordance, Mary Trump was obligated to refrain from engaging in any conduct that would destroy or injure plaintiff's right to the benefit of the settlement agreement, including the confidentiality provisions contained in paragraph two. Mary Trump failed to deal with plaintiff in a good faith, and instead conducted herself so as to intentionally and maliciously breach her confidentiality and non-disclosure obligations owed to plaintiff through her unauthorized disclosure of confidential information protected under the settlement agreement,

0:25:34 Thomas: Yeah.

0:25:43 Thomas: The moops. Yeah,

0:26:29 Andrew: Including but not limited to the confidential records, and seeks $100 million in damages for that.

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0:30:15 Andrew: Third cause of action is unjust enrichment. This is a very weird, this is a totally normal cause of action to plead in connection with a breach of contract, right? But typically, and we've talked about this before, you plead that as an alternative to the breach itself, right? Yeah. You say, I hired you to paint my house. I gave you the money. You never painted my house, you breached the contract. In the alternative, even if there's some irregularity and the contract is going to be void for some technical reason, I still gave you money and you didn't paint my damn house, that's not money you were entitled to.

0:30:32 Thomas: Yeah, yeah. Right.

0:30:54 Andrew: You were unjustly enriched. Give it back.

0:30:57 Thomas: Yeah? How is that going to apply here?

0:31:00 Andrew: I'm going to read it to you because it seems very plainly to me that it does not. So, allegations. Paragraph 109. This begins at page 19. Mary Trump intentionally and blatantly breached the clear and unambiguous confidentiality terms by causing her book to be published. The book contains numerous unauthorized disclosures of protected confidential information. In addition, the book contains a detailed account of Mary Trump's unauthorized disclosure of the confidential records to The Times. The above stated breaches were marketed as one of the main selling points of the book. Her actions were intentional, calculated, motivated by desire to acquire fame, attention, notoriety, and wealth. Displayed a wanton disregard for plaintiff's rights under the settlement agreement, Mary Trump received substantial compensation, advances, proceeds, and or profits as a direct result of her role in the publication, promotion, and or sale of the book.

0:31:52 Andrew: As a result, she was unjustly enriched at plaintiff's expense by virtue of her own wrongful actions. So yeah, it's that connection over, right? So you're sort of following along and you're like, all right, if she didn't have the right, you know, take the complaint at face value, which is false, but take it at face value. She wasn't entitled to breach the confidentiality provisions. OK, maybe you shouldn't have been able to write a write a book about it. But the the idea that she wrote the book, it's it's not like the case that she didn't leave the house.

0:32:10 Thomas: Yeah, yeah, So let me ask an analogy to see how this would apply, like, what if I worked at Kentucky Fried Chicken and I grabbed the secret formula and someone gave me a large book advance that, then I wrote the book called "Here's Secret Formula," what would, what would you plead there? Like, what would be the complaint if you're KFC?

0:32:27 Andrew: Yeah.

0:32:41 Andrew: I like that analogy. And then the question would be, were you unjustly enriched is that as we'll see in the next count, is that a tortious interference? Right. Like is because the difference between taking the formula and writing the book, here's the secret formula for KFC. Right. Is that that's already an ongoing business. Right. That has a set market value that we can figure out, you know, that you were that you're feeling.

0:33:07 Thomas: Yeah is that less So it's less about what you get paid to write a book and more about what economic losses KFC might suffer. Is that okay?

0:33:20 Andrew: That's exactly what that's exactly right. Right. Like that's what they're that's What the focus is on in unjust enrichment, right? Like the unjust enrichment from me to you for, you you you not painting my fence, right. Is the amount that I paid you when you didn't do something. It, to me, it doesn't make a whole lot of sense. Uh, is, it, really kind of outside, uh, the mainstream. The reason is because the thing that is being commercialized here is a thing that had zero commercial value until Mary Trump published Right. And so it just seems like that that's more, you know, a direct damages claim.

You're like, hey, you should have been able to steal my stuff. It's why it seems odd. OK, now we finally get into four or five, six and seven are the counts that apply as against the Times and the reporters. And the first is tortious interference with contract. And again, this somebody who litigates these kinds of cases, a tortious of the classic tortious interference with contract claims is I represent Torres Co., you, Smith Co., have a supplier agreement with Jones Co., right? And I meet with you and I'm like, hey, man, if you break that contract with JonesCo. And sell your stuff to me, I'll give you an extra 5%, right?

0:33:33 Thomas: Right. So it doesn't make a whole lot of sense in this case.

0:34:01 Thomas: Yeah.

0:34:49 Thomas: Gotcha.

0:34:50 Andrew: And and we do that secretly, you terminate the agreement with Jones Co. And start selling it to me. Well, then Jones Co., they can sue you for breach of contract. But suppose you abide by the terms of the contract, right? They can, regardless of whether that breach itself was justified, they can Sue me for inducing you to breach that contract, that is tortious interference. You would have otherwise continued doing business with them, but I came along.

0:35:18 Thomas: Here.

0:35:18 Andrew: I'll say it this way. I have never seen a claim for tortious interference with respect to two individuals not transacting business who have an NDA. Right. I'll say it that way. Right. Because the measure and the reason for this, what I'm what I'M about to explain is tortious interference can apply both to existing contracts, but also in most jurisdictions to future earnings. Right? And you might imagine, boy, every prospective business thinks it's the next Microsoft. Trust me, I represent a lot of startups. And so they will say, well, look, if we had gotten that deal, then we would have been able to get this deal. And then that would have meant we could have gotten X and Y and Z down the line, and we would Have been huge. And the courts will say, OK, but, you know, we need something that is reasonably foreseeable in order to measure damages.

0:35:33 Thomas: Yeah, yeah.

0:36:22 Andrew: Right. So you have a contract in hand. Right? Or you have they're about to sign the contract and somebody comes along and induce, you Know, and sweeps them away through, you know, malicious or unfair activity.

0:36:33 Thomas: Oh, that sounded more like romantic means sweeps them off their feet.

0:36:36 Andrew: Yeah. Well, that's why, again, it still has to be the underlying conduct has to beat tortious, right? If it's just fair competition, then, you know. That's fine, right.

0:36:46 Thomas: What if I buy you a dinner? So good. It's tortious.

0:36:51 Andrew: They bring out, they shave the extra truffles over the top.

0:36:55 Thomas: Yeah. The guy, the server's like, I'm warning you, we're getting into tortuous territory with this if I go any further with his truffles.

0:36:55 Andrew: Yeah, I have break that out next time, um, so uh, yeah, right, like the underlying conduct has to be wrong, uh, but you can also get damages that kind of go into the future. And so as a result, the law around tortious interference tends to focus on what was, what was the economic value of the the contract that you broke. Right. And the economic value of the contract that between, to the extent that there was one, right, they were both parties to a settlement agreement. But like, don't even begin to know how one would calculate what the economic volume would be. I to Donald Trump of not disclosing the crimes contained contained in, in that distribution.

0:37:43 Thomas: Yeah. Especially With My first argument would be, your honor, there are no consequences to Donald Trump's crimes being exposed, so what are we doing here? There's Zero cost To him, it doesn't Matter what it, will. Oh, I'll pay him back all the, nothing that it cost him to have his crimes exposed, I suppose.

0:37:53 Andrew: Yeah. Yeah, yeah, yeah. Would make that argument. I absolutely would claim in court like that. There is that they have not alleged that, that these things are, you know, uh, harmful per se. Uh, and the history of Donald Trump to here shows that, in fact, he has suffered no economic consequences, no negative economic consequences, and probably a whole boatload of economic benefits as a result of this. So agree with you on that point. Count four is the tortious interference. Count five is aiding and abetting tortious inference. Count six is unjust enrichment against the times, And that's the same kind of questionable theory. You know, you you wouldn't have been able to publish that blockbuster story without Mary Trump having violated the NDA. And the seventh is a cause of action I haven't seen before.

I have no reason to believe it is not a New Jersey or New York cause of action, negligence, supervision, or retention. And it says That the, this is pretty funny, so I am going to read it. It says the three named reporters, Craig, Barstow and Buechner, are, and or at all relevant times were, were employees, officers, directors, and or agents of The Times. They were reporters. The Times knew or should have known of the tortious propensities of Craig, Barstow, and Buechner. For example, The Times was aware that Craig, Barstow, Buechner had a vendetta against plaintiff, that is Donald Trump, and were willing to commit tortious acts in furtherance of their desire to harm plaintiff as evidenced by their wrongful and improper publication of plaintiff's personal and confidential tax returns in their 2016 article. By the way, that has not been adjudicated as a matter of law.

0:38:19 Thomas: Yeah.

0:39:01 Thomas: Of course.

0:39:47 Andrew: So, you know, it is the Times had these loose cannon reporters and it negligently supervised or failed to retain control over them. And so because of that, they have injured Donald Trump to the tune of $100 million. So there you go. That is the Trump lawsuit against Mary Trump and secondarily the news outfits. It does not dispute.

0:39:57 Thomas: Yeah, makes no sense. Yeah.

0:40:19 Andrew: Yeah. Case nonsense. Is that a thing?

0:40:19 Thomas: Yeah. Yeah. I mean, is that your prediction here? I mean, what's your, if you're the other side, what's how are you motioning to dismiss of

0:40:29 Andrew: Yeah, absolutely. You move to dismiss, as I've said, like each and every one of these causes of action minus the breach of contract claim are potentially improperly pled, even the breach-of-contract claim, it is—again, I have to speculate here. Look, it has five—it goes on for five pages for the NDA, so it probably has a liquidated damages clause, right? Right. So you will be able to say like, oh, this actually is presumed to have caused some harm. I doubt that liquidated damages clause for an NDA is one hundred million dollars. That would

0:40:32 Thomas: Course. Yeah.

0:41:09 Thomas: Yeah.

0:41:09 Andrew: Be especially since it was signed in 1981. That was like all the wealth in the universe at the time. But but whatever, it's it's going to be something in there. Um, so, you know, that you might have an allegation that the breach of contract, uh, claim states the minimum elements, but the others, right, major elements of those torts seem to be missing. And Um, I would, I would wrap the whole thing up because, uh. On the breach Of contract, you, you have, you Have a couple of answers, right? You've got, didn't, they Didn't attach the contract. So here it is. The the nondisclosure language is void as against public policy because she was releasing evidence of potential crimes. And the proof of that is the Manhattan District Attorney's Office is investigating the president for future crimes.

0:41:56 Andrew: So at minimum, right, I would say you dismiss out that first claim and that this court independently rule that it is an invalid NDA and that attempts to conceal evidence of a crime. But at minimum, you would say we hold this case in abeyance, right? Let's not get out in front of the Manhattan DA's office. If they determine that this is criminal behavior, then for sure. I like I could not possibly have been compelled not to release it. Yeah.

0:42:21 Thomas: Okay. Yeah. I was actually going to ask, I was like, oh, will we get a determination in this court as to whether or not all that stuff is criminal, but it's, you, you wouldn't do that. You would, you would hold it in abeyance until, okay.

0:42:39 Andrew: Yeah, that's right. You would say, yeah, exactly. We're going to we're going to wait because that may be determined in a court.

0:42:46 Thomas: Well, I know we're on bullet point one here. I, whatever, whatever time management enhancing drugs you took last week have worn off, I think, but I'm Also partially to blame because my next question, and I can't remember if we've, it feels like I've asked you something like this before, but it just occurred to me, how would you evaluate this if let's say there was like a prosecutorial discretion type decision, like, oh, we're not gonna go after Trump for these things, would you be able to say in court like, okay, they were crimes, but like the statute of limitations or for practical reasons they just weren't determined by another court to be crimes necessarily, how would that work, all

0:42:56 Andrew: They.

0:43:30 Andrew: Yeah it could because for something to be Notice that I use the precise language of void as against public policy, right? And so you can say there are strong reasons that it would be in the public's interest not to enforce this provision, notwithstanding the fact that prosecutor on the specific facts declined to indict someone, right. Right. So in other words, the standard for invalidating the NDA is more broad than just a determination of, you know, you are concealing the existence of an actual already committed crime. That that would be, by the way, the counter argument.

0:44:15 Andrew: That's why I said I would argue first to dismiss it and then say, but at minimum, judge, like, you know, don't rule against us on this at minimum reserve judgment, because even if you think, OK, this was probably not criminal behavior, case isn't before you. And the case may well be before, you know, another judge in this jurisdiction in the Southern District of New York in the state courts in New York. I should say this is in Dutchess County in Newark. So I this is also a state law lawsuit. So, know, you would say it would be before another another state judge in the state of New York. And again, you don't want to get into a territorial match with that other judge.

0:45:00 Andrew: We just let them make that determination. Let's not make a ruling in this court that could potentially be used in those proceedings. And judges are generally very, very receptive to those kinds of motions, right? Because they don't want to, you know, they want to say, oh yeah, man, I just thought I was ruling on a contract term. I absolutely was not making a reasoned determination that no crime took place here. So let's do, we'll do bullet points two and Yeah, yeah. Super quickly here.

So because these were also big Trump pieces of news that came out, first in connection with Eric Coomer's lawsuit in Colorado that we have covered arising out of Eric Coomer was the former executive at Dominion who has been, you know, relentlessly attacked by right wing sources. And he sued in Colorado for defamation. In addition, this is in addition to the Dominion lawsuits against Sidney Powell, Rudy Giuliani, et cetera. And in in discovery in that case, we found a memorandum that I'm going to link in the show notes. It is 14 pages long and it was produced by the Donald Trump campaign connection with questions regarding the big lie.

0:45:27 Thomas: Right. Well, well, uh, there's bullet point one, I guess, uh try to rush through the other ones. Yeah. Yeah, wow

0:46:29 Andrew: So this was Zach Parkinson, the Trump campaign's deputy director of communication. He said on November 13th, he sent out instructions asking other campaign officials to substantiate or debunk several matters concerning Dominion. Turns out they debunked them, and they debunked them in ways that are surprisingly candid, or maybe not, you know, but if you never think this is going to become public, but again, illustrates what a service, you Know, God help me, you know, the conservative leaning internal, you know, multinational corporation Dominion voting systems, but you know what a service they have done to our democracy.

0:47:16 Andrew: So you go through, this is a 14-page document, and I'm just going to read some of the headings. All of these are substantiated by additional bullet-pointed evidence. So, Dominion has no direct ties to Venezuela. There is no evidence that Dominion's CEO or any other leader of the group has ties to Antifa. Company profile. And then there's all of this stuff about who they are. Smartmatic is privately owned. Then there's political ties and donations that says Smartmatic donated $256 to political candidates. 85% did go to Democrats, but two Smartmatic employees, on the other hand, donated $90 to President Trump.

0:48:05 Andrew: So, you know, exactly what you would consider a far-left internal company. Dominion Voting Systems does not own Smartmatic. That's one of the crack-in allegations. Dominion and Smartmatic terminated their agreement in 2012 over a non-competition agreement in Puerto Rico. Dominion has no company ties to Venezuela. Dominion's leadership has no ties to Antifa. The rules are fueled because of now deleted anti-police Facebook posts. And then they go and they show, uh, a Facebook post by Eric Coomer, again, the, the Dominion executive, right? However, there was no evidence that Eric Coomer is a supporter of Antifa in any way. In June, Eric Coomer did post a Facebook message in which he attacked president Trump's characterization of Antifa as an organization, but did not endorse or indicate membership in the group.

Right. And then this is just a Facebook post that's like Antifa isn't an organization. You idiot. There's no members, no meetings, no dues, no rules, no leaders, no structure. It's an idea. Right. So, which, you know, is all true. That surfaced that, that is again, with both of these memoranda, you know, sort of the question is how far up the chain did it go? You know, maybe Zach here is going to say, oh, I I definitely never showed this thing that disputes what our our campaign was putting out on a daily basis to anybody else. That's going to be hard to believe in terms of testimony. So this is the proverbial, you know, smoking

0:48:44 Thomas: Yeah, yeah, yeah Is

0:49:49 Andrew: Gun diet.

0:49:49 Thomas: This a bad document?

0:49:50 Andrew: This is a real bad document thingy. We could go through it in more detail. But and I was prepared to because it's a lot of fun. But but there you go.

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0:53:31 Thomas: So, from one document to another, uh, we've got another document to talk about, the Eastman memo.

0:53:37 Andrew: This came about again because apparently the Trump administration, like, bothered to cover its tracks around Bob Woodward, right? Right. But Bob Woodward and Robert Costa, ex National Review conservative journalist Robert Costa to, by the way, put out a book called Peril. And the idea is that by promoting the big lie, Donald Trump got Lindsey Graham and Mike Lee to invest, you actual governmental resources in investigating election fraud. Broad. They turned up a memorandum, a truly terrifying memorandum from Federalist Society asshole John Eastman that we talked about in our very last episode, one that is being allowed back into polite society, despite the fact that he is a demonstrable racist, birther, conspiracy theorist, lunatic, one sick supporter. I had no idea it went this deep.

0:53:49 Thomas: Yeah.

0:54:36 Andrew: So it says this. The memorandum is entitled January 6th Scenario, and it begins with a falsehood. It says seven states have transmitted dual slates of electors to the president of the Senate. That is not true. Zero states transmitted dual slates of electors. All 50 states had their electors submitted under the Election Act at the appropriate time in accordance with the safe harbor Deadlines. Lines, and then subsequently, in a bunch of states, like, idiot Trump supporters off the street called themselves, like, You know, the rump coalition of Trump delegates, or whatever, and sent them in. That's not a thing, okay.

0:54:43 Thomas: Huh. Yeah. Yeah. So, You're telling me I can't just type up my own, like, electoral tallies and send, like, mail them in. And I'm then a Californian, so that's two slates of electors from California.

0:55:30 Thomas: Well, gold fringe on the flag, you see,

0:55:29 Andrew: But, That That That is their logic in this memo. That is John Eastman's logic in this demo, if you did that would say California has, has two slates Of electors, and that's preposterous. So it begins with what he thinks is the law. The 12th Amendment merely provides, this is really telling, merely provides that the president of the Senate shall, in the presence of the Senate and the House of Representatives, open all certificates and the votes there shall be counted. There is very solid legal authority and historical precedent, he continues, for the view that the president of the Senator does the counting, including the resolution of disputed electoral votes, and all the members of Congress can do is watch. That's the thesis. And then after a bit of quoting the Electoral Count Act, they say, we think the Ele Electoral Count Act is unconstitutional. And here is the scenario we propose. Again, this scenario, I want to tell you, is a crime, right?

0:55:38 Thomas: Wow.

0:56:28 Andrew: Is very clearly outlining an attempt to, at insurrection, an attempt to, yeah, to overthrow the legitimate government of the United States. So this is what they propose. One, Vice President Pence presiding over the joint session, or Senate pro-Tempore Grassley if Pence recuses himself, right? So again, John Eastman, he has no idea if Pence is on board, if Chuck Grassley is on, but he's just like, well, you know, we'll get somebody to do this.

0:56:33 Thomas: Trump better form an NDA around it, that's how criminal it is, Mm hmm.

0:56:59 Andrew: You will we'll see this repeated in you, begins to open and counts the ballots, starting with Alabama, without conceding that the procedure as specified by the Electoral Count Act of going through the states alphabetically is required. Two, when he gets to Arizona, he announces that he has multiple slates of electors, and so is going to defer decision on that until finishing the other states. This would be the first break with the procedure set out in the act. And by the way, would not go forward for precisely that reason. At the end, he announces that because of the ongoing disputes in seven states, there are no electors that can be deemed validly appointed in those states. That means the total number of electors appointed, in the language of the 12th Amendment, is 454.

0:57:44 Andrew: This reading of the 12th Amendment has been advanced by Harvard Law Professor Lawrence Tribe. Sidebar, no, it hasn't. The parenthetical, right, that links to an article we have discussed on the show, which was an article written by Neil Buchanan, Michael Dorf, and Lawrence Tribe right back when, and I brought your attention to Neil Buchanan when we were talking about redshifting, because he was at the forefront of talking about the problems of, of, uh, you know, Donald Trump potentially stealing the election. He flagged that long before it was on anyone else's radar and caused me to do an "Andrew was wrong." And, you know, but I was, I was glad I was wrong before I was right. Right. Like, in, uh, I kept dismissing the idea that, that Trump would try and steal the election, um, and uh, and it was Neil Buchanan who took that seriously. So, yeah, you might think, uh, to a, linking to an article entitled, "No, Republicans cannot throw the presidential election into the House so that Trump wins," probably doesn't support their memo in which they suggest doing exactly that.

0:57:52 Thomas: Hmm.

0:58:46 Andrew: And you would be right. And again, key the there is that the tribe has endorsed the view that no electors are appointed if a state actually certify, you know, fails to certify by a particular deadline. Right. That didn't happen. All the states certified the electors.

0:59:02 Thomas: But that didn't happen. It's

0:59:06 Andrew: So this is a complete lie. Yes. So then a majority of the electors appointed would be 228 because those seven states were all Biden states. There are at this point 232 votes for Trump, 222 votes for Biden. Pence then gavels President Trump as reelected. Bullet point number four, howls, of course, from the Democrats who now claim, contrary to Tribe's prior position, that 270 is required. So Pence says, fine. That's actually what this memo says.

0:59:06 Thomas: Almost like it doesn't apply here. OK.

0:59:41 Thomas: Yeah,

0:59:42 Andrew: Pursuant to the 12th Amendment, no candidate has achieved the necessary majority. That sends the matter to the House, where the vote shall be taken by states, the representation from each state having one vote. Republicans currently control 26 of the state delegations, have the bare majority needed to win that vote. President Trump is reelected there as well. So the point that you you know, right, your previous argument is legally wrong. And you're like, oh, so then we'll do that. This will show them, right? That shows you.

1:00:07 Thomas: Fine. I picture Pence looking at his script says here. Fine. OK, say that.

1:00:13 Andrew: One last piece. By the way, this is number five out of six. So there's a last one after this last one. But one last piece, assuming the electoral count act process is followed and upon getting the objections to Arizona slates, the two houses break into their separate chambers, which by the way is what would happen. And we know that because it did happen in this case. Right. Pence got to Arizona, was about to to certify Arizona for Biden. And there was an objection. And at that point, you immediately break. Right? You don't do this like we count up all the states and then, oh, look, we've we've thrown out enough of the Biden votes that now we happen to have a majority. No, that's that's not the way the law works. Anyway, should not allow the Electoral Count Act constraint on debate to control. That would mean that a prior legislator was determining the rules of the present one, a constitutional no-no, as Tribe has forcefully argued.

1:01:06 Andrew: There's not even a citation for that one. So someone, and again, I love this, Ted Cruz, Rand Paul, et cetera, because again, this guy's just like, eh, Ted Cruise will do whatever the hell you tell him to do, right? Right, should demand normal rules which involve the filibuster. That creates a stalemate that would give the state legislatures more time to weigh in to formally support the alternate slate of electors if they have not already done so. Again, all of that is in the extreme, the Electoral Count Act applied here. We broke up into separate sections. There was no, no filibuster procedure. They did not, you know, stall indefinitely in the Senate. Now, part of the reason was because John Eastman was encouraging people to storm the Capitol at this point in time. But in any event, that creates a stalemate. And then we get the state legislatures to support these lunatics who say, and none of that happened either. Right. And none of that was ever going to happen.

1:01:13 Thomas: Yeah. Doesn't matter. Yeah well What's the message here? None of that was ever going to happen. I mean, this is a tangible plan that somebody had to steal the election. Was it fantastical? Was it so uh, out of the realm of possibility that we shouldn't have been worried about this? What, what do you think? Yeah.

1:02:14 Andrew: Sorry. You say that was never going to happen. I am reacting to this document as a lawyer. I'm not reacting to this document from the perspective of somebody who engineered folks to come out to the Capitol and storm the Capitol with, mace and weapons and shout, you I mean, from a legal perspective, these arguments are nonsense. Do I mean in any way that they were not dangerous as hell? Absolutely not. Right. This is terrifying to read this. And the reason we're doing this is I don't know how far up the chain this got. Got.

1:03:00 Thomas: No.

1:03:00 Andrew: But is disqualifying. And John Eastman should be disbarred, tarred, feathered.

1:03:07 Thomas: Kidding, geez.

1:03:07 Andrew: I mean, yeah, this is as mad as I am at Sidney Powell, like that this is, you know, I guess they're roughly.

1:03:16 Thomas: It's Pretty equal, but this is a handbook to take over a government, like to steal The presidency, I mean, that's, that should be serious, especially among lawyers.

1:03:20 Andrew: Yes. And to underscore that, let me read the last paragraph. The main thing here is that Pence should do this without asking for permission, either from a vote of the joint session or from the court. Let the other side challenge his actions in court, where Tribe, who in 2001 conceded the president of the Senate, might be in charge of counting the votes, and others would press a lawsuit, would have their past position, these are non-justiciable political questions, thrown back at them and get the lawsuit dismissed. The fact is that the The Constitution assigns this power to the vice president as the ultimate arbiter. We should take all of our actions with that in mind.

1:04:03 Thomas: Oh, wow.

1:04:04 Andrew: This is speculation. But we saw public break between Mike Pence and Donald Trump right around this time, last week of December, beginning of January. Can can I do anything more than surmise that somebody went to Mike Pence and was like, hey, what do you think about the whole doing a coup thing? And Mike Pence was like, for this guy?

1:04:14 Thomas: Hmm. Yeah. Nah. Yeah.

1:04:27 Andrew: Are you kidding me? All I'm saying is it would certainly explain a lot of contemporaneous activity. So you

1:04:32 Thomas: Yeah. So then I want to ask how close, I know these legal arguments are ridiculous, but so is the abortion stuff going on right now. Like, how close were we to this? Would you needed pence plus how many others? What would it have taken?

1:04:49 Andrew: Would have needed Pence. We already had you. We already had 11 senators, right, engage in the sham process of objecting to the Arizona electors, right? We already had multiple members of both the House and the Senate vote against certifying that slate of electors. Now, they were overwhelmed by the number of their colleagues on the other side. But if if you insert here Mike Pence and in the, you Ted Cruz, Rand Paul, et

1:04:52 Thomas: That's it? Oh my God.

1:05:26 Thomas: Yeah.

1:05:26 Andrew: Cetera, put in Josh Hawley. Right. Somebody who and Ted Cruz, I think, also has no shame. Have one member of the Senate. You probably need one member of Congress. That's not going to be Mark Meadows.

1:05:39 Thomas: That's not going to be

1:05:40 Andrew: There you go.

1:05:40 Thomas: Hard. Yeah.

1:05:40 Andrew: Right. To just monkey with the procedures and following Paragraph six, the vice president, just do this without asking for permission. You could have put this into action.

1:05:50 Thomas: Jeez. That's chilling.

1:05:53 Andrew: Now, I like to believe that our institutions are more robust than that. The past five years have taught me a lot about my assumptions about institutions.

1:06:02 Thomas: But that Almost makes me think that from their perspective the big lie Trump people are like kind of right, and that Pence could have done something. But like, I thought they were kind of just wrong about that, but I guess from their prospective, Pence maybe did have the power to at least making a decent attempt at trying to steal this presidency, presidency. Is that right?

1:06:24 Andrew: Given his prominence, given the way in which it would have been an immediate, would have taken everybody on on the side of goodness and decency by surprise, you Know, and when I, when I add that, right, I am adding, and feel free to hold this against me for the rest of my natural life, Mitch McConnell, right, like like let us not forget, uh, no,

1:06:36 Thomas: Knows Yeah.

1:06:47 Thomas: He didn't want to steal the presidency for Trump. I don't think, like, he's now he's like gone back on everything

1:06:52 Andrew: It, he forcefully condemned uh one six at the time, right? Again, you know, now that it's back, right, now we're, we're engaged in the gaslighting because he's Mitch Macconnell, he's still pure evil. I

1:06:59 Thomas: Yeah, yeah, that's his Favorite. I think that's how he sustains himself, like vampires suck blood, Mitch McConnell gaslights, you the people on the left. I think that's Howie, that's his life force. I'm pretty sure, when he, remember when he's all bruised up, I think he just hadn't gaslit anybody for too long. He's, oh, I gotta gaslight people about my beliefs. Okay.

1:07:13 Andrew: Entirely Entirely Possible, but what I'm saying is if this coup attempt had taken place, place, Mitch McConnell would have been on our side, right? It would have been an immediate scramble for, all right, what procedural shenanigans can we pull in order to stop this from going forth? And, you know, we would have had the master of procedural shenanigans on our site. So if you're asking me, Andrew, does your evaluation of this, the likelihood of this coup succeeding, on, on the, the beneficence depend on the view of democracy of Mitch McConnell?

1:07:30 Thomas: I hope so. Jeez. Yeah.

1:07:55 Andrew: My answer to that has to be yes, uh, and that should be terrifying in and of itself. It

1:08:00 Thomas: Wow. You know, I'm not going to crown Pence king of the resistance or anything, and he is an awful Handmaid's Tale person himself. However, if you had to choose between an enemy of everything you believe in who at least respects the institutions of your democracy somewhat and one who doesn't, I'll take the one who respects the institutions of your democracy somewhat. I, it makes me appreciate that component of some people on the right more, I guess. And now time for T3B, everybody.

1:08:32 Andrew: Sorry.

1:08:33 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:08:39 Thomas: All Well, this, this new test is very difficult. Not sure when I'll get one of these ones right, uh, we'll see how it goes.

1:08:47 Andrew: OK, Thomas, the local police department was trying to solve a recent series of murders, possessing reasonable suspicion that the perpetrator resided in a neighborhood on the west side of the city. The police decided to search through the garbage of all of the residents on garbage day. One of the houses of the police visited belonged to the local tailor. The tailor had recently left two bags of garbage at the end of his driveway. They were both tied tightly and sealed well. Well, while going through the bags, the police found evidence that placed the tailor at the scene of many of the murders.

The tailor was subsequently charged, and the evidence found in the garbage bags was offered at trial. The tailor moved to suppress the evidence, arguing that the search violated the Fourth Amendment's protection against unreasonable searches and seizures. Should the evidence be suppressed? A. Yes, because the search does not fall into any of the exceptions to the warrant requirement. B. Yes, because the officers were basing their search on a mere reasonable suspicion. C. No, because the plain view exception justifies the search. Or D. No because the Fourth Amendment does not apply to the search

1:08:48 Thomas: Hmm. Huh. Oh.

1:09:34 Thomas: Man. Oh.

1:10:00 Thomas: Man, oh, this is so hard. I'm trying to remember trash law. I know we've talked about this, I I, so my first memory was trash is fair game. And then I was thinking, like, isn't there something about, like, weirdly, the fact that it's like tightly sealed and all that. Like, I feel like that actually factors in somehow. They're at the end of the driveway. We've talked about, like, the, fourth, the amendment. Oh my God. This is fiendish. I wish I remembered this. But the Fourth Amendment, I think it applies down to the, through your driveway. I think tight, tightly and sealed. Well, does this violate attorney dumpster? Confidentiality is the key here.

1:10:46 Thomas: Oh So should the evidence be suppressed? God, this is so close. I am so 50, 50 on this. I can't remember. I feel like garbage, you know, this is silly, but I actually feel like it matters that it's tied tightly and sealed well. Like it's just like, it's not in plain view. Somehow that meant I feel Like we've talked about this is a stupid rule, but like, or maybe it's not, I don't know. And I also feel like we've talking about the driveway thing. All right, I'm just gonna see what speaks to me and then change my mind. That works. A yet so it should Should be suppressed, yes, because the search does not fall into any of the exceptions to the warrant requirement. Yes answer. So we're going to keep A, alive, because it's just kind of general language that would suggest that it isn't okay.

1:11:33 Thomas: B, yes, because the officers were basing their search on mere reasonable suspicion. Suspicion, so that I, don't, I, so I think I can eliminate B, um, for my purposes anyway, who knows if it's a good elimination, but in my mind I think that doesn't matter because I think this is more about, like, is the trash fair game to just search through regardless of your suspicion or not, I think that's more the question and it doesn't really matter if it was a reasonable suspicion, I think. So I'm eliminating B. I'll go with that assumption. C, no, because the plain view exception justifies the search. Plain view. I don't think you could argue that trash that is sealed, tied tightly and sealed well is in plain view. I just don't think you can.

1:12:22 Thomas: I think plain view is like you knock on the door. Hey, Taylor, I just want my suit fixed or something. And then you shine your flashlight in the window. You see the bloody knife or something. And then you're like, it's in plain view. And now I can go arrest him. I think is that how that works. I don't think you could possibly argue that this is in plain view or D no, because the fourth amendment does not apply to this search. Now, is that the answer? That's like, It's at the end of the driveway. So therefore it's not a search of your home. And that's a strong, God, that's a strong contender for me. Now that I, now that I say that out loud, I can't remember what we talked. Maybe, maybe the fact that it's at the end of the driveway was the key.

1:13:09 Thomas: I think we've talked about something like this before. I think if you went, if you like hopped his fence, search through his garbage, Fourth Amendment probably applies, but it's at the end of the driveway. And I think the being tied tightly just tells you that it is not plain view, because maybe if it was just an open garbage can, maybe you wouldn't even ask that question. So I am between A and D, and I'm actually, oh God, I'm going with D. I think, I think the, the, the logic of the, the thing is going to be, the Fourth Amendment is to protect you and your home from being searched unreasonably. If you put garbage at the end of your driveway, there's no violation of your, like, like, you know, autonomy happening there or whatever. I think that's the reasoning.

1:13:55 Thomas: I'm between A and D and I'm going to go with D on that reasoning. And boy, I, God, I hope I remembered that right. I, I'm pretty sure we've had something just like this. I'M FLIPPING A COIN. The coin disagrees. Wow. This hasn't happened in a while. So the coin is going with A. The COIN may gain one on me. Um, I'M BETWEEN A AND D. I' going with D. COIN'S going with a final answer.

1:14:09 Andrew: Alright, And here is your chance to play along. You could pick up ground maybe on both Thomas and the coin, who knows, uh, but uh, but you know how to play, you know how to, this game, just share out this episode on social media, include to the hashtag T3BE, include your guests, your reasons, therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortunate not guaranteed. Why?

1:14:23 Thomas: That's, that's highly likely and now

1:14:38 Clip: And thank you, Let's go!

1:14:40 Thomas: It's time to thank our new patrons at patreon.com/law, uh, and Andrew, why don't you, uh, start us off first?

1:14:46 Andrew: And thank you to The Apostate's Playground, to Erin Hutton, to Liz 410, to Buck-oh-five Freedom Menu, nice, Andrew Burke, to Dontcallmeheather ImAVeronica, to Chance Mixon, and Cactus Hatrack. I like that name, Cactus Hatracks.

1:15:09 Thomas: That's Cool. And Thank you to Courtnerd Alan Johnson Eli's thing that I can't say on children's program, uh, weird Cats m Dogs, Thrawn, a new live action Star Wars fan film is raising funds on Indiegogo, and they need your support. Interesting. James Guenther, Yaaaaaas, Queen!, oh, I love, uh, Broad City, if that's what you're referencing, I think that's where I first heard that anyway, but I love that show. Good times. Carol Stopa, and Kelly Burke is finally becoming a patron to defend Doctor Who! Oh, good, good, we have Defend away. We welcome you. Thanks so much, patrons. And that's our show. Wow, that was a lot of meat on the bone there, Andrew. But that's, you know, we're covering some Trump crap for the first time in a while. So there you have it. Thanks for the deep dive.

1:15:13 Andrew: Oh, I like it.

1:15:59 Andrew: And can't wait for next week can't wait for the next week

1:16:00 Thomas: Oh, Weird Al Law, you want to hear it? Don't send me any more emails before you listen to this damn episode. Tune in Tuesday, everybody, or Sunday night for patrons.

1:16:10 Andrew: Until then

1:16:11 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.

1:16:45 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.