OA536: The Tennessee Judge Who Keeps Jailing Kids

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: This is episode 536. I'm Thomas. That's Andrew, perpetually on a boat, Torres. How you doing, sir?

0:01:26 Andrew: This is my last day on a boat. I'm so sad, but

0:01:30 Thomas: So much going on, Andrew. You were referenced in yet another article, this time the Washington Post, about your, uh, what it was, kind of an unexpected news breaking that you did with Activision versus Blizzard. I never would have known that that story, when we covered it, I don't know, a month ago, would lead to so many follow-ups and major news sources interviewing you. It's amazing. Another congrats.

0:01:51 Andrew: Well, thank you. Didn't know either. And we can't turn Opening Arguments into the Activision Blizzard podcast. Podcast, uh, but I, I have new news to break. I want to break it here first, um, and it might do kind a lot of of wrapping up a lot of these loose ends. So, um, so yeah, uh, incentive for me, I put this as a wild card segment, so, you know, you run the clock on me, and if I don't get to Activision, I don't get to tell you all this great stuff let

0:02:15 Thomas: Yeah. And if when we don't get to Activision, it'll be because of the just so much other stuff we need to cover. We've been trying to do an explainer on this awful Tennessee judge who's jailing kids. That's been a big requested one. I saw the headline. I saw that story. I don't know the details. I'm really curious to hear the legal breakdown on what sounds like just an awful thing. And then we've also got Bannon being voted in contempt January 6th. I mean, there's so much to talk about. And I think we had to move a thing or two off the whiteboard because of all that. So we'd better go ahead and get to it.

0:02:54 Thomas: Well, psych, I'm sorry. I can't help it. I have to say one quick thing. You know, I was listening to the Daily Podcast today, as. And I'm just so mad about a thing that Andrew, I'm giving you full veto rights on this segment. But if you're hearing this, that means Andrew, let it go ahead. So blame him. But look, it's been a while since George Floyd and the many iterations of the Black Lives Matter protests that we've gone through in this country. And we do the thing that I think is inevitable just as a people, which is we can't keep everything in our heads at once. And when there hasn't been a high-profile protest and shooting, you know, I think a society just kind of moves on because that's a privilege we have to just sort of move on from those issues. So I hear this daily podcast where they're talking about the Chicago police

0:02:54 Andrew: S get to it

0:03:41 Thomas: Are on strike because of the COVID vaccine mandate. Did you hear about this?

0:03:47 Andrew: I did.

0:03:48 Thomas: Look, I'm going to be as brief as I can here, but it is blowing my mind. I just want to get all the facts straight because the, when we had these George Floyd talks and any of these iterations of police reform talks, there are a number of people who might be, by the way, I think are reachable and maybe even on the left, but people who are like, well, you know what? Being an officer is a dangerous job. It's a dangerous job out there, that what choice do they have but to be really aggressive with their policing and just guns a-blazing and all that crap. Like, genuinely, that's an argument that I think appeals to people who maybe have a police officer in their family, what have you. When we're talking about the lives of mostly young black men, all of sudden, no cost is too high for the police to protect their lives, to protect police safety.

0:03:48 Andrew: Indeed.

0:04:35 Thomas: You know? Oh, I might not come home today. I better have, you gotta have your gun out. You gotta be, be really aggressive with it. You know, all that when it comes to someone else's life, when it come to an unarmed black man's life. You risk, No, whatever. It doesn't matter. Shoot first, ask questions later. When it comes what is actually the number one killer of police in America, which is COVID-19. Oh, they can't get a shot, Andrew. They can't, it's too far. They can't get a couple owie shots. They can't do it. They're on strike because of a vaccine mandate. It's unbelievable. Again, when it comes to their, it's not even their lives. When it comes that them not wanting to get a little shot in their arms, they can do it, they will go on strike, they'll quit their job. They are quitting, Andrew, they're quitting their jobs. But when it come to other people's lives, when comes to the citizens lives, mainly young young black men's citizens lives, then there's no cost is too high though.

0:05:28 Thomas: Oh, whatever, you got to shoot, you know, because it might be a danger to us. It's unbelievable. I can't even, I can't cope with the hypocrisy and how hollow these arguments now sound. These arguments about police safety, police officer safety. Well, apparently it's not about that. Apparently has nothing the F to do with that because the number one killer of police right now is COVID and they won't get the shot, Andrew. They're protesting the shot. They're quitting.

0:05:53 Andrew: I don't think I have anything to add to that. I mean, other than I thought White House Press Secretary Jen Psaki rather masterfully handled that question from Peter Doocy when, basically it was the same punchline, right? She asked him, do you know what the number one killer of cops is in America in 2020, 2021? And, you know, and he just sort of looked up with those puppy dog eyes and she said, it's COVID. So

0:06:18 Thomas: Yeah. Unbelievable. I'm so sorry, audience. Now programming, the it's got me so mad. And I bring it up mainly because, again, I think it's impossible to keep focus on all these issues we need to. And just a reminder that Black Lives Matter and police reform is still a thing we need be working on, along with 11 billion other things. I know it's a lot, but it's, boy, it's outrageous. It really is. All

0:06:43 Andrew: Maybe I can turn this into a happier segment. You may see the hashtag or the phrase raise striketober going around to describe October. And in fact, right now we now have our 175th documented strike with the John Deere worker strike. That's more than 10,000 workers who have gone on strike. Union power has never been lower in the United States than it is today. You have an openly hostile Supreme Court.

0:07:19 Thomas: Yeah.

0:07:20 Andrew: We have talked about the Janus versus Ask Me decision at great length.

0:07:20 Thomas: But I have the right to work though, Andrew. I've been given the right-to-work, so that's surely got to be worth it.

0:07:29 Andrew: We don't have time, I am going to recommend, I'm going to have you link in the show notes. It's a piece from Teen Vogue magazine. I want to tell you, it is terrifying to me. Teen Vogue, the reason that they show up on my list is because they have published outstanding pieces on abortion rights in the past. This is an exceptional piece explaining the history of the right to strike in the United States, explaining the numbers, explaining explaining the background. I'm going to see if you're as astonished as I was. Right now, striketober, we have nine major strikes in nine different states in 2021.

0:08:16 Andrew: A major strike being defined as that which involves 1,000 workers or more. Prior to 1982, do you want to take a guess at how many major strikes there were in this country every year on average?

0:08:27 Thomas: Oh, So the way you're setting up the question, it sounds like the Reagan years are going to kill the unions, which will lead to fewer strikes, I think. So, So, yeah, so I guess it's going to be a higher number. I'm going to say, I'm gonna say, I don't know, 30.

0:08:36 Andrew: Are going to kill the unions? Yeah. Shockingly enough, we calculating the data in 1947, and it was triple digits every year from 1947 to 1982.

0:08:55 Thomas: No way.

0:08:56 Andrew: At least 100 major strikes per year. It was seen not as like, those oh, greedy workers or whatever. It was seeing as a fixture of the landscape, right? Like that's how you exercise your muscle in collective bargaining. It was not thought of as inappropriate or wrong. It was thought of this is a part of negotiations. Sometimes you have to strike in order to show management that you're serious. And then Reagan, you know, very famously broke the backs of the Air Traffic Controllers Union, fired 11,000 air traffic controllers who were striking. And that en masse sea change at the governmental level the wind out of the sails of striking and

0:09:01 Thomas: Jeez. Well, wow.

0:09:43 Thomas: Counterpoint, counterpoint. Maybe workers got all

0:09:46 Andrew: Oh, entirely possible.

0:09:46 Thomas: Their rights in 1982 and they didn't need to strike. They got them all. Well, that's incredible. Triple digits every single year and This Striketober, which again, we support all strikes except the police who are striking over crybabies over not getting a shot in there, yeah Um But Like you're Saying Nine, we're seeing this is like a huge number, right? That now in this, and in this day and age, I guess it does seem like a lot, but historically it's minuscule.

0:09:55 Andrew: Except the police strike yes right yes yes right correct there you go. I really, really encourage reading this uh, uh, Teen Vogue article. It's it's exceptionally well done so all

0:10:18 Thomas: Yeah That's not the First time that Teen Vogue has been referenced as like there's a a great article in this Teen Vogue that you need to read. That's funny.

0:10:27 Clip: Down the law, down the law.

0:10:30 Thomas: So Steve Bannon, is he behind bars? Just what's going on?

0:10:36 Andrew: Want to say that we will continue to be vigilant about the job Merrick Garland is doing or not doing over at the Department of Justice. Continue to Be somewhat surprised that Donald Trump has not been indicted in Georgia yet for election fraud. That case, we've laid that out on the show. So you're a liberal. You wanted to see them all locked up. What's going on? This is an example of where we have made real progress and things are going to continue. It's the difference between Trump being in office and not being in office. And that has to do with the House January 6th commission. It has produced two very noteworthy things which are happening today. The first is Steve Bannon has refused the House subpoena to testify.

0:11:26 Andrew: And so that vote, likely taking place as we are recording the show, is going to the full House of Representatives to hold him in contempt. Unlike when Donald Trump is in office and Bill Barr was the attorney general, this is not just a sternly worded letter. The full House votes to hold Steve Bannon in contempt, that will send a criminal referral over to the Department of Justice. And let me tell you, if Merrick Garland does not act on that criminal referral, referral, will be the first place you hear about that. We will be the first group to call him out. And I think we will have, don't just mean opening arguments, listeners, but I think that we on the left will have a real voice in making that happen.

0:12:13 Andrew: Because this is a crime. You cannot just say, eh, you know, my former boss used to be the president, So I'm not going to listen when Congress tells me to show up. That's not how any of this works, Steve.

0:12:20 Thomas: Yeah. Boy, I it has been how all of this has worked four or five years. Am I wrong? I mean, this feels like the first time.

0:12:32 Andrew: You wrong, but you are not right for two salient points that are no longer in effect. Fact. The first is ongoing executive privilege. We never before saw assertions of executive privilege on behalf of somebody other than the witness. It was a ridiculous position, and the Trump White House papered over that by issuing some Office of Legal Counsel memoranda that said that that was appropriate when it isn't. Those assertions are gone now. There is no ongoing executive privileged, and I'm to talk a little bit about that in kind of the second at some point under this.

But the other issue is we no longer have a criminal mastermind seeking to protect his patron in Bill Barr running the Department of Justice, We have right? A career lawyer, right, we have, again, my biggest complaint about Merrick Garland was, you know, sort of age and temperament. And, you know, does this guy really have, you what it takes to kind of go root out the corrupt Trump crime family? I'm still not convinced that he does. But I think he's going to have no problem when the House of Representatives sends over a criminal referral and says, hey, we subpoenaed X person and they didn't show up and told us to go F ourselves.

The normal response response of the Department of Justice to that is, excellent, we're going to get some guys with guns on that right away. And that should be the response here. I believe it will be the response here, if it is not, then, you you know we'll start calling for Merrick Garland to resign, because, and I mean that very, very very seriously.

0:14:11 Andrew: That's how confident I am that I think there will be criminal proceedings brought against Steve Bannon. It is your job. It violates the law to just not show up because you used to be connected to the rich and powerful. Sorry, you got to show up.

0:14:26 Thomas: All right. So you are giving us a prediction?

0:14:28 Andrew: My prediction is that the House of Representatives votes a criminal referral to the Department of Justice and the Department of Justice will swear out an information against Steve Bannon, begin initiate criminal contempt proceedings against Steve Bannon. So it's a good thing I'm going to be back on terra firma because we're going to have a lot to follow next week. In addition to requesting testimony from Steve Bannon, the January 6th commission also requested a whole bunch of documents from the presidential archives, from the archivist. And this is a perfect example of where we've drawn the line. We talked about how the of Justice took an arguably pro-Trump position with respect to the E.

0:15:18 Andrew: Jean Carroll case, under the idea that it is important institutionally to preserve for the office of president the idea that you're on duty when you're the president 24-7. And that, you know, that wasn't surprising. It didn't mean that they were in cahoots with Trump. It was just kind of the way the office worked. Here's a good illustration of the limits to that. And that is, when you subpoena the archivist, the existing federal regulations go to the current president to say, hey, are these valid requests for documents, or do these unfairly seek documents that belong within the purview of executive privilege, right? Is this overreach?

0:16:04 Andrew: And you can imagine, right, I gave you the E. Jean Carroll setup, presidents have a very, very high incentive to interpret that as broadly as possible. Well, good news, when the January 6th subpoena hit the presidential archivist, the Biden administration's view was, nope, you can have each and every one of these things. There's no privilege here whatsoever. Have at it. As a result, Donald Trump has now filed a lawsuit seeking declaratory and injunctive relief, saying that current president just is too bound up in politics to actually protect presidential privilege. We do not have time to go through this complaint.

0:16:50 Andrew: I will link it in the show notes. I will tell you everything you need to know about the complaint, which is, number one, when you start reading it the opening arguments way, which is let's turn to page 26 and see who represents the president in this monumentous lawsuit? That's right. Jesse R. Binal, Sidney Powell's lawyer. So, Yeah, you have a crackerjack lawyer on, and that's it. It's just Jesse. Non-serious grifter idiot who is literally, his entire career right now is representing Sidney Powell and Defend the Republic public and you know that the the the klein handlers and and kraken, it's just, it's just, I, I am positive, I'll say this, I'm positive that Jesse got his money up front, uh, from from Donald Trump in filing this lawsuit.

0:17:10 Thomas: Wow.

0:17:42 Thomas: Yeah. I imagine representing the former president and being like, I'm going to need you to do a deposit here to make sure it cleared. Can you give me, can I check your credit history? You know, like, isn't that amazing? It's such a deadbeat. You can't even rely on getting paid by.

0:17:46 Andrew: Yeah.

0:17:56 Andrew: Think we have every reason to think that uh people didn't get paid while he was the president But um, uh, but, but yes, these arguments are terrible and meritless. The notable thing about this lawsuit, and by the way, if you've got you Q Anon members that are through the looking glass, that that are part for some reason of your circle of friends or family or whatever, um, we're going to link to the complaint in the show notes, uh, do control F in in this document for the word "former," and you will see it describe Donald Trump as the former president of the United States on nine separate occasions. So, uh, thinking if you have somebody that that is holding out the end, and Trump has been very, very cagey about this, right, not, um, conceding that he's not still secretly the president, under blah blah blah, like, look, I agree, I shouldn't have to be making a big deal out of this.

0:18:01 Thomas: It's amazing.

0:18:51 Andrew: He lost he was removed from office nine months ago. This shouldn't be news. But if you have people who are drinking the Kool-Aid about how he's still secretly the shadow president, how about paragraph 20? This is the first paragraph describing the parties. This is written by Donald Trump's lawyer, and it it says, quote, by Jesse Bennell, quote plaintiff, Donald J. Trump is the 45th president of the United States. President Trump brings the suit solely in his official capacity. By the way, there is not an official capacity as a former president under the presidential record keeping act associated regulations, the executive order, the declaratory judgment act on the constitution of the United States, um, uh, so that's not a thing. Uh, but he does identify himself as the former president, in fact, he is.

0:19:40 Andrew: So we can look forward to this lawsuit going a big fat nowhere. Select Committee to investigate the 1-6 insurrection is going to move to dismiss, and I think that motion to dismiss will be granted. I think it It won't matter because this court is not going to grant injunctive relief. And so those records are going to get turned over by the archivist in the next couple of weeks. So, again, more stuff that it's a good thing I'll be on the ground and ready to parse through and read some documents.

0:20:17 Thomas: And then while we're in, I guess, the kind of updates, breaking news section here, Andrew, Drew. I know there was some just hot off the presses updates on SB8.

0:20:26 Andrew: Yeah. So the Texas law that effectively bans abortion after six weeks did exactly what we told you was going to happen on the show. It went to the Fifth Circuit. The Fifth Circuit, very, very conservative, heavily anti-abortion circuit, 2-1 decision decided to stay the lower court's injunction, which means that SB8 went back into effect after having been enjoined for all of a couple of days. And as we predicted, that means that the Department of Justice has moved on the Supreme Court shadow docket for relief from the Supreme court of the United States. We have, and again, I've already assessed Supreme court is so partisan and it's the shadow docket.

0:21:12 Andrew: They can very easily just issue a one-line per curiam opinion, and I think that that's what they're going to do. I think what is telling here is, as of, it was about 20 minutes before we were scheduled to record this, we got a copy of the state of Texas's opposition to that application to vacate the Fifth Circuit stay and reinstate the injunction. And what's really interesting, the bit you need, none of the rest, it's 50 pages of, you right-wing garbage. What is very interesting is the position that the state of Texas, so this is in the name of Attorney General Ken Paxton, right? The position that the state of Texas has now articulated in a brief to the Supreme Court is as follows, and to set this up, I need to tell you that part of the relief that the Department of Justice asked for was, hey, the Fifth Circuit, vacate the stay, put the lower court's injunction back in place.

0:22:09 Andrew: But if you don't do that, Supreme Court, what you should do is immediately take this case up on the merits, bypassing the lower Court's opinion. And you may recall that the Trump administration used this procedure, very, very rare procedure, but used that procedure multiple multiple times throughout the past four years. And the Supreme Court, in fact, granted it with more frequency in the Trump administration than in the past 50 years. So the DOJ, don't know, you're going to lose anyway, so you might as well try everything you can, also requested bypass certiorari. In opposing that, the state of Texas says as follows, and this is page 48 to 49 of the the brief.

0:22:54 Andrew: It says, "We oppose bypass certiorari. You should let the Fifth Circuit weigh in. You should give this all the time in the world while the law takes effect." And then it says, "The federal government criticized Texas for not forthrightly asking the court to revisit its decisions," according to the appellate brief. "Texas has done so now, despite the court's hope that its decision in Casey would call the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution, abortion remains a divisive issue. There will always be those who deem abortion nothing short of an act of violence against human life. Consequently, there will always be states who seek to protect unborn life through their laws," blah, blah.

0:23:42 Andrew: So here's the punchline. "If the court decides to construe the federal government's application as a cert petition, it may also construe this response as a conditional cross petition on the question of whether the Constitution recognizes and protects a right to abortion and whether the court should reconsider its decisions in Roe v. Wade and Planned Parenthood v. Casey." So I think you got that, but let me put that in English. What they're saying is, don't take this case on bypass. But if you do, we are, this is what a conditional, right? That's the if-then. We are then cross-petitioning for cert.

And we think the question should be, and this is the first time this would be put before the court this starkly, "Should this court overrule Roe v. Wade and Planned Parenthood v. Casey?" So there you have it. I don't know how, if this were a functioning Supreme Court, this is the kind of own goal error that gets you reversed nine to nothing, right? Because seriously, think of what they have just presented in their brief. They have said to the Supreme Court of the United States, there was absolutely no conflict with the existing precedents that this court has set down and the existing law and interpretation

0:24:19 Thomas: Yeah.

0:25:04 Andrew: Of the Constitution that protects the right to an abortion and enforcing Texas SBA. But also, if you do take this case up on the merits, we would like to reverse Planned Parenthood v. Casey and Roe.

0:25:15 Thomas: Yeah, unrelated, you know, just while you're at it, unrelated to the case here, but just, you know overturned Roe.

0:25:20 Andrew: Is as stark an admission that your position, I mean, they said in black and white, oh, you've accused us of hiding the ball. Okay, fine. We're not hiding the ball any longer. We are opposed to Roe v. Wade, period.

0:25:36 Thomas: Well, can I play Handmaid's Advocate? Not really, but in the terms of what this means, you've given us many examples of pleading in the alternative or whatever. And so is this not the same as that where you're like, I didn't do it, but if I did it, then also, you know, this other thing. And it seems to me that learning, you know, from you on the show that that seems to be a common practice. Like it's not a, it's not a huge own goal to be like, no, I didn't, it. But also here's, if I, you know, if you're going to say that I did, then here's what, you know, that kind of thing. Is this different than that?

0:25:38 Andrew: Sure, Love that you bring that up, and I think that that is a fair sort of surface-level argument to say, like, no, wait, like you can request different kinds of relief. That's why I read the previous passage, right, because this is not a question about the particular – this is we've now moved past the request for relief, right? Right. That is, are you going to reverse the Fifth Circuit and lift the stay and permit the injunction to go forward or not? This is a question about what does the appeal mean?

And on the question of it, again, you can also plead in the alternative in terms of certified questions, questions, but you can't when something is a a certified question in your petition, you must answer that question, you must actually take a stand, right? So that's that's it, that's the thing that I think makes this different than just ordinary pleading in the alternative, because when you say to the Supreme Court, right, so for example, the case that is pending for which oral arguments will be heard on December 1st, that is Dobbs versus Jackson Women's Health. The certified question in that case is whether the Constitution prohibits all pre-viability abortions, right? Because remember, the Alabama law that is the subject of that case prohibits abortions after 16 weeks, and 16 weeks is pre- viability, right.

0:27:38 Andrew: So you had to take, and the the parties did take a position on that certified question, Alabama right? Said, no, it doesn't. Jackson Women's Health said, yes, it does. So when you put, as your certified question whether the Supreme Court should overrule Roe v. Wade and Planned Parenthood versus Casey, you're saying, yeah, we're taking a yes. That's not a maybe. That is our position as the state is X, that's not good law. And I don't know how you can say as a state, we don't think that's part of the constitution, but by the way, you can trust us to respect that part of the constitution in connection with our law that completely contravenes that section of the Constitution.

0:28:16 Thomas: Yeah. Gotcha. So I see the distinction there. So it's a little bit different than simply pleading in the alternative. Yeah.

0:28:22 Andrew: So yeah, yeah. But I love it. Again, paint right? The most robust picture we can. Yeah.

0:28:30 Thomas: Does this then become an opportunity for the court to overturn Roe even earlier than we thought they might?

0:28:32 Andrew: Know If, if the Supreme Court were to grant bypass cert, they would consolidate the cases. October 21. you would say, let's get expedited briefing and we'll hear you at the same time that we hear Jackson. Which, by the way, actually a reasonably smart thing, right, assuming you had a Supreme Court that was interested in doing its job rather than a Supreme Court that's interested in, you making abortion illegal as quickly as possible, would say, yeah, look, this seems to be the exact same question that we're about to hear from. Prediction, you're going to get a one-line per curiam opinion that says, "It is the judgment of this court that the judgment, judgment of the Fifth Circuit, staying the injunction issued by the U.S.

0:29:25 Andrew: District Court for the Central Division of Texas is hereby affirmed, period. And then you're going to get four dissents, right? You're going get a moderate dissent from Roberts, joined by the other three liberals, and then you are going to a dissent, probably from Sotomayor, joined by the other two serious voices on the court, but probably not joined by Roberts on the merits. So that's, that's what we're going to say.

0:29:49 Thomas: Yeah. This show is brought to you by Roman. Squeaky doors, clog sinks, finicky engines. When things break around the house, you take care of it. But when something's off in the bedroom, most people just try to not think about it. What are you waiting Take care of it. getroman.com Go opening now. With Roman, you can get a free online evaluation and ongoing care for ED all from the comfort and privacy of your home. US licensed healthcare professional will work with you and find the best treatment plan. If medication is appropriate, you for it free with two-day shipping. The The whole process is straightforward and discrete. Those are two very nice things when it comes to treatment for something like this. And getting started is simple. Just go to GetRoman.com slash opening and complete an online visit. Take care of your ED without leaving your home. Complete an online visit today to connect with a healthcare professional and take care of it. Go to GetROMAN.com opening now and you'll get $15 off your first month. It's really time to take care of your E.D.

0:30:57 Thomas: And remember, get started today and you will save $15 on your first order of of ED treatment. One more time, that's getroman.com slash opening. This show is brought to you by Green Chef. And you might be sitting there thinking of Green Chef, wait a minute, you've advertised HelloFresh in the past. Well, Chef is owned by HelloFlesh. And with a wider array of meals to choose from, there's something for everybody.

Personally, I like to switch between both of them because you can kind of gauge maybe what's available one week on one versus the other. And now you can enjoy both with a discount with opening arguments. Here's what Green Chef is all about. They have a meal plan for every healthy lifestyle, keto, paleo, plant powered, or even if you just want to have delicious but balanced dishes.

And now that I'm vegetarian, Green Chef offers a little bit more flexibility and it's difficult to find good, varied vegetarian vegetarian meals. Sometimes. It's not the easiest thing in the world, but Green Chef makes it incredibly easy. They're expert chefs, curate every recipe and with over 30 meal choices each week and the flexibility to switch plans, you'll never have to sacrifice taste for nutrition. You can enjoy restaurant quality dishes in the comfort of your own home. I love Green Chef. I I absolutely Love not having to think about not having a meal plan. And I know my wife, Lydia loves that as well.

It just does it for you and it gives you the ingredients in the quantities you need and the directions you need. It's fantastic. Take homemade plant-based meals to the next level with Green Chef's plant-powered options or this. Try Try Green Chef. It's a great way to start introducing plant-based meals into your diet, even if you're not going 100%. I highly recommend it. And with pre-portioned, easy-to-follow recipes delivered right to you, eating well has never been simpler.

0:32:41 Thomas: Never worry about having to plan or shop for dinner again. And that is honestly our favorite part of especially it. With the two kids, just taking something off the mental agenda for us has been the biggest help with Green Chefs. Go to greenchef.com slash oa125 and use oa 125 to get 125 off including free shipping wow once again greencheff.com slash o8125 oa125 is that code that you want to put in to get 125 off off, including free shipping. Go get a try, check it out and see why Green Chef is the number one mealkit for eating. Well.

0:33:19 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:33:29 Thomas: I think it's time we get to our main story that you may have seen. From ProPublica. The headline that you may have seen making the rounds was black children were jailed for a crime that doesn't exist. Almost nothing happened to the adults in charge. Already pretty grim reading just on the title alone. Andrew, you looked into this and you've got the explainer for us, right?

0:33:52 Andrew: I do. And it is with a lot of these stories, it gets worse, the more you dig into it. Will tell you that there are a couple of very, very positive things, right? So the first is, the reason we know about this, the ProPublica articles talk about a series of events from 2016. The reason we knew about this was because investigative journalism is on this at all. It has to do with a civil lawsuit that was brought in 2017. And, by the way, which remains subject to to potential settlement. The parties have reached a settlement. It needs to be approved by the court. There is a class of persons that are involved. So I'm going to give you that link in the show notes.

0:34:38 Andrew: So if you or someone you know victimized by the Tennessee police as a child. And by the way, our best estimate is that there are hundreds of these incidents. There is a pending class action settlement, and you can join that. It is rutherfordjuvenilesettlement.com, all one word. So R-U-T-H-E-R-F-O-R D-J-U V-E N-I-L-E S-E T-T L-E M-E E N T.com. Uh, there's a proposed class and a proposed settlement. Go sign up, um, and make sure that, you get, um what's coming to you. So so look, this is an example of where, you know, we, we talk about the wheels of justice churning slowly. We talk about civil lawsuits versus, uh criminal investigations. This is where civil lawsuits drove investigative journalism. I has also produced significant backlash against the single person, as far as we can tell, who really was the primary driver of all of these atrocities. That is an elected judge named Donna Scott Davenport, yeah, this is the Karen of the boss level.

0:35:41 Thomas: Oh.

0:35:53 Thomas: Not Karen, I was gonna say, this is a mega Karen, this is the boss Karen.

0:36:03 Andrew: That is correct. But no, This is somebody who identifies herself as the mother of the county, County. That's why this is Rutherfurd Settlement. So this is Hutherford, Tennessee, created the position of elected juvenile court judge in 2000. Donna Scott Davenport ran and won, ran for reelection and won. Ran for ree election and won intends to run again when her term expires. So hopefully her name will be poisoned by then. But yeah, no, she believes in discipline from the police when and she's white woman. I didn't say that, but it should

0:36:03 Thomas: We

0:36:48 Andrew: Go without saying.

0:36:48 Thomas: All Knew Already It's fine, you

0:36:50 Andrew: Story here from 2016, and again, I want to tell you, there are potentially hundreds of these incidents. This occurred at a middle school, okay? The middle school there were a couple of kids on the playground who were fighting, by the way, kids in ages as young as eight. Oldest was in sixth grade, And ultimately, the decision was made not just to break up the fight, to have police officers come and break up the fight.

0:37:34 Thomas: Gotta Be Kidding me.

0:37:35 Andrew: And, no, I am not kidding, but to arrest each and every one of the children who were involved, including the children who were there who were arrested for failing to break up the fight. So one of them was a fourth grader, identified by the initials EJ, who in the video shouting, stop Tay-Tay, stop Taylor. So now considered to be involved in the fight and She, along with uh these other kids, again, children as young as eight, children crying, vomiting, being pulled off of school buses, were not only forcibly separated by the police, they were taken to the the police station and they were arrested. By the way, these children were then held in prison, were detained, Right, pending the entering of their pleas. So you might might say, um, were the arrest warrants for

0:38:11 Thomas: My God.

0:38:37 Thomas: What? I The first thing I'd say, sorry, is What the f, I, this, is eight Year old? You don't, if an eight-year-old's fighting, you just separate the eight-year-old, you know, okay, there might've been a 10-year old too or whatever, 11, I don't know, whatever, forget sixth grade, but like, come on, this is not, anybody any school could handle this. You put them in the principal's office and you talk it through, you figure out what's going on. Like, how did we even get to this point?

0:38:49 Andrew: Yeah, We Got to this point because of Donna Scott Davenport, because the office that is intended to serve as the clearinghouse for let us apply differential standards, standards to juveniles than you would apply to adults, is occupied by somebody who believes in lock them up.

0:39:38 Thomas: But how is this even getting to a judge, Andrew? I'm sorry, just like, I know part of this makes any sense. You're at a school.

0:39:40 Andrew: Be No, because you have to go to the judge to get an arrest warrant. She signed off on the arrest warrants for eight-year-olds, 10-year olds, 12-year old. Yep.

0:39:54 Thomas: Okay, but who was seeking an arrest warrant too? Too. I mean, not to take the blame off her, but like there's also whoever that is, who in the world is like, you know what the solution is here as school administrator, a principal, a teacher or who do kiss. I have a relationship you're saying with the police or it's campus police situation or something.

0:40:02 Andrew: That that is the school in conjunction with the Hobgood Police Department.

0:40:16 Andrew: Yep. Yep, And this was Hobgood Elementary School. So, yeah.

0:40:20 Thomas: It's an elementary school. What do you need? Yeah, heartbreaking. I don't know what's going on here.

0:40:24 Andrew: Know. Know, so it is beyond heartbreaking again, the reason you stick a judge in that line of decision here is, okay, fine. The school says, well, these kids are out of control. We've got to call in the cops. The cops, and it goes back and forth, and there it basically plays kind of, I can't say good cop, bad cop. I can say medium cop, worse cop, right? Right? Like there is, you know, the one who has second thoughts about whether he should arrest an eight-year-old and the other one who's like, all right, guys, get in there. Oh, by the way, handcuffed, I should add, An eight- year-old was handcuffed.

0:41:01 Thomas: Yeah, I Don't want to hear about your second thoughts if you still went through with it. Like, cool. Congrats. Great. You had Second thoughts, oh.

0:41:06 Andrew: Yeah. Here's the thing. In order to issue an arrest warrant, you have to get the sign off from the judge. Judge. The judge, of course, would you like to hear some of the quotes, right? Children lack respect. It's worse now than I've ever seen. It is just the worst I've seen. I'm here on a mission. It's not a job. It's God's mission. I' seeing a lot of aggression in my nine- and ten-year-olds. She encourages kids. This is quoting directly from the ProPublica article, which is where her quotes are listed. She encourages children troubled by their children's behavior to use over-the-counter kits to test them for drugs. Quote, don't buy them at the Dollar Tree. The best ones are your reputable drug stores.

0:41:26 Thomas: God, what?

0:41:45 Andrew: I'm not going to go through. I mean, yeah. So she's a monster. But again, you would think when the question comes in, how can you arrest the kids who were standing around nearby an elementary school fight? Has to do with, police officer investigating this process, thought that, uh. Maybe an appropriate charge would be conspiracy to commit assault. So then she that police officer met with two judicial commissioners that were authorized to issue arrest warrants. And the judicial commissionings went in and did a Westlaw search. They came up with the following on Westlaw, Tennessee Criminal Code Code 39-11-402, and it says this, and person is criminally responsible for an offense committed by the conduct of another if,

0:41:45 Thomas: I'm

0:42:43 Andrew: One, acting with the culpability required of the offense, the person causes or aids an innocent or irresponsible person to engage in conduct prohibited by the definition of the offense. Two, acting with intent to promote or assist the commission of the defense or to benefit in the proceeds or result of the expense, the person solicits, directs, aids, or attempts to aid another person to commit the offense, or three, having a duty imposed by law or voluntarily undertaken to prevent commission of defense and acting with intent to benefit the proceeds of result of defense or a promoter assistance commission, the person fails to make a reasonable effort to prevent the commission of offense. Offense.

0:43:18 Thomas: But Is there an asterisk or a footnote that's like, obviously we're not talking about eight-year-olds, you dip shit, like, is there that, or is that an an implied addendum to every law In the in the books, yeah.

0:43:30 Andrew: You actually don't even get to that because what is missing, what got you and what got these two commissioners was, oh, the criminal law says you can be responsible for the conduct of someone else. And it does say that. It says that in the same section that it defines, for for example, what criminal mens rea is, right? Like, this is a background statute that explains what you need to prove in order to hold somebody responsible.

0:44:01 Andrew: But you might notice that what is, think you're wrong. But also, it uses the words, the offense, right, like, in other words, you have to pair this up with an actual offense, with actual conduct that is prohibited by law in Tennessee, and they didn't do that. Right, right, right. But assault would not fit, right? Like, you would not say that somebody saying, stop, Tay-Tay, is acting with the culpability required for the offense of assault.

0:44:00 Thomas: I would think not being eight is critical to mens rea, am I wrong?

0:44:14 Thomas: An actual crime yeah, well, assault and battery or something yeah

0:44:33 Andrew: They're acting with opposite of the culpability required, right? They're saying, stop, right? Stop is the opposite of, why don't you assault that person? Part Yeah. Of the story is in fact true. These children were arrested, taken into custody for a criminal offense that is not an independent criminal offense. Like It saying, I mean, is as direct an analogy as I could possibly make it. It would be like saying, oh, Thomas Smith hates Donald Trump, so therefore, right, the mens rea for murder is a desire to see somebody dead or a depraved heart indifference to whether that person lives or dies, and me to be like, okay, well, look, you know, you saw it. You have indifferences to whether Donald Trump lives or ties, so, therefore, we're arresting you,

0:44:40 Thomas: You would think you would thank even though no one's

0:45:25 Andrew: Might though no one's killed Donald Trump. That's exactly right.

0:45:25 Thomas: Killed Donald Trump, oh. That's the analogy to this, that is wow. That's

0:45:30 Andrew: Yeah. Yeah, gets worse. This is something that ProPublica that did not report on. And so I think that it is really, really important to point out. And that is that Tennessee's rules of criminal procedure strongly, they do not outright prohibit taking minors into custody. But what they do is they, you do that in incredibly rare circumstances, right?

In specific, Rule 203B1, if a child is taken into custody without an order, and that child is alleged to be delinquent and held in secure detention, a probable cause determination that an offense has been committed by the child shall be made by a magistrate within 48 hours of the child being taken into to custody, or the child is alleged to be delinquent and detained under the special circumstances exception pursuant to TCA 37-1-114C3, a probable cause determination that an offense has been committed by the child and a finding of special circumstances shall be made by the magistrate within 24 hours, excluding nonjudicial days, but no later than 48 hours of the child being taken into custody. So in other words, I'm about to tell you what all these special circumstances are first, but the law is super clear. Ordinarily, if you take a child into custody, he is a danger to himself or others. You nevertheless have to make a decision whether to charge or release that child within 48 hours.

0:46:57 Andrew: If you're intending to keep him in detention, then you have to make the finding of special circumstances within 24 hours, half the time, right? Why? Because the law recognizes, even in Tennessee, that maybe we shouldn't be holding kids in criminal custody.

0:47:09 Thomas: It's a kid yeah also I gotta imagine that, you know, even even as you say all that, I gotta imagine that that's designed, or or written with, in mind, for, you know, 17-year-olds, right, or I mean this is this is ridiculous

0:47:25 Andrew: Of course it is. And Read to you the exceptions from Section 114, and that will come clear. The exceptions are, probable cause to believe the child has committed any other delinquent offense involving the likelihood of serious physical injury or death or an offense constituting a felony, violation of probation, violation of aftercare, and, so you have to have all of that, right? You have to have a serious felony, physical injury, or death, and the child, A, is currently on probation, B, is currently awaiting court action on a previous alleged delinquin offense that fits those categories, stories. C, is alleged to be an escapee or absconder from a juvenile facility institution or other court-ordered placement.

0:48:16 Andrew: Or D, has, within the past 12 months, willfully failed to appear at any juvenile court hearing, engaged in violent conduct resulting in serious injury to another person, or involving the likelihood of serious injury or adult, or been adjudicated delinquent by the virtue of an offense constituting a felony if committed by an adult. If so, So, right, and there are a couple of others? Escapee from a secure juvenile facility or institution. The child is wanted in another jurisdiction for an offense that, if committed by an adult, would be a felony in that jurisdiction.

0:48:47 Thomas: An eight-year-old wanted in every state.

0:48:50 Andrew: I mean, you know, yeah. If you're an eight-year-old Billy the Kid, right. Right. Like but yeah, I mean, this is that the Tennessee law is clear. We do not want to see children locked up if we can help it. And if we could help, it means, yeah, you previously shot somebody. OK, well, maybe. Right. That's fair. None of those procedures were followed. And so this is terrible, terrible. ProPublica is continuing to run the articles and good on them. But I want to say the reason that there are these ProPubblica articles, the reason we know about the story has to do with that civil lawsuit from three years ago. It's Section 1983 lawsuit. That's how you vindicate these claims, right?

When state police officers violate your constitutional rights, you sue them and courts take that very very seriously, um, we're not wading back into how the police interact with, uh, particularly with Black people in in this country. I do not right want to be heard as saying things are fantastic if you're African-American and 25, uh, and you run afoul of the police in this county. That is not the case. Said that time and time again. None of us can really sort of know what that's like.

0:48:54 Thomas: Yeah. Sure.

0:50:04 Andrew: But I do want to say that this is an example of the system, if not working 100%, having the right corrective mechanisms, right? It is lawyers bringing a civil lawsuit for damages, of which, again, there is a settlement, rutherfordjuvenilesettlement.com, if you were involved in this in any way whatsoever. That drove investigative journalism. That drove the writing of these articles. That drove public attention. That drew Opening Arguments to this. So, this is an area where I feel proud of my profession and I feel pride of the job that lawyers are out there doing. Doesn't make it not horrible.

0:50:39 Thomas: Well, I mean, so some people might get some money, that is their tax dollars that they paid into the police and judges in the first place. What about the police and the judge and the Karen involved in this? I mean, are they fired? Are they, what, what's, what's, what's going on there?

0:50:54 Andrew: As of right now, what's happened is there has been significant public backlash against Donna Scott Davenport, including her university cutting ties with her. That is not an uncommon thing to do when you are a judge. You can also be a teacher at local law school, a win-win for everybody. You get paid to teach. People in your classes get to have a real life judge tell you what the law is like. She was an instructor at Middle Tennessee State University, and she's been fired by Middle Tennessee state university. So good on them. They fired her four days after the story broke. Is that enough punishment for? No, like absolutely, absolutely not.

0:51:38 Thomas: I I feel like maybe she should be arrested for conspiring to commit a crime against a minor. You, like that code that you read maybe applies to her and the officers.

0:51:46 Andrew: I, I certainly would be, uh, would be in favor of, of looking into that. This is an elected position. She should be drummed out of office. Whoever runs for that position in a landslide. This starts that discussion of, again, you, all of the reasons why creating elected judicial officials tends to be a terrible idea, um,

0:52:08 Thomas: Why would this be any better? We would have less recourse to get rid of her if she wasn't elected, I

0:52:10 Andrew: Yeah. I mean, you know, you always have impeachment of of judicial officials, but no, I, um, think that the election part is what encourages the, you public grandstanding, but but you know if you want to make the counterpoint of Clarence Thomas, uh, fair, fair, fair counterpoint, uh, I have no good, I have good argument against that.

0:52:24 Thomas: Yeah. Sure. Well, It's more that it's just time and time again we look at the difference in consequences, you know, it's on one hand kids' lives were possibly ruined, you know, traumatized, arrested, held, kids, eight-year-olds. You know, and then on the other hand it's like, wow, you know, the punishment is she might not win re-election to this. It's, know, like pathetic, but I get it, you know. It's kind of, it's the system, I guess.

0:52:44 Andrew: Yeah.

0:52:57 Thomas: Episode's brought to by Aura. Folks, the way we use the internet has changed dramatically over the last decade, but security tools have mostly stayed the same. Aura provides complete digital security to help protect your online accounts, finances, and devices, and more, all in one easy-to-use app. You know, the other day I was trying to create an account for and I went to put in a password, and it said that this password's been part of a hack. It's like been leaked. That was unsettling. That's just one of the million examples of dangerous it can be online. Stuff gets hacked and leaked all the time. Most credit card companies do a good job of protecting you against fraudulent purchases. But what if a scammer files for unemployment in your name or if your social media accounts are hacked? Or his protection goes well beyond just your credit card? You got so much online these days.

0:53:42 Thomas: You get your photos, your finances, devices, connections. It's all online. Have a security system for your home in real life, but what about your online life? Security protection to keep your online finances, personal information, and tech safe threats. From, it's an all-in-one protection from identity theft, financial fraud, malware, scam sites, and so much more. With Aura, you'll get alerted to fraud and threats fast, like, like, if accounts or password were leaked or if someone tries to open a bank account in your name. And Aura is easy to set up. All plans come with $1 million in identity theft insurance to help recover your stolen funds and experienced US-based customer support that's got your back. For a limited time, Aura offers our listeners up to 40% off plans when you visit aura.com opening. Opening. Go to aura.com slash opening to get complete protection and savings of up to 40%. That's A-U-R-A dot com slash opening. Andrew, we don't have enough time, but you, we're doing it anyway. Wild card segment, Activision versus Blizzard. What's the latest update, yeah?

0:54:42 Clip: WOAH-

0:54:53 Andrew: So a thing that I told you was coming, uh has in fact happened, and that is, um, on October 8th, when, uh there was a dust-up between the EEOC and and DFEH, the the California Department of Fair Employment and Housing. I said that undoubtedly would give Activision grounds to go to the state lawsuit by DEFA against it and request some sort of relief. And two days ago, that is in fact what they did. They went for an ex parte motion to stay proceedings. And the the argument was, a federal governmental agency has alleged that the state investigation into us, you know, this lawsuit, was inappropriate and in violation of the professional rules of ethics.

0:55:43 Andrew: So what you should do, judge, is you should stop these proceedings, allow us to conduct some limited discovery and figure out, was or not? And if there was, what the appropriate remedy is. And we should not otherwise be going forward with this lawsuit. And I need to tell you, in an ordinary situation, that's a pretty strong argument, right? This is not an ordinary solution. So Tuesday, Activision filed that request and demanded that the judge stay the proceedings. On Wednesday, the California Department of Fair Employment and Housing responded. And their response is fascinating. Their response is basically to say as follows.

0:56:29 Andrew: Number one, to deny that the two lawyers that we talked about, lawyer one and lawyer two, and by the way, I now know who those are. So we're going to break that news in about five minutes. To deny that those two lawyers actively and substantially participated in the DFEH investigation. Well, if that's the case, then that Rule 1.11 doesn't apply, and I'm to talk about that. To produce affidavits from both of those lawyers and their supervisor that said, we did not actively and substantially participate in the investigation of Activision while we worked at the EEOC. That is backed up by an assertion that said they worked in the law department, which I can confirm that's true, and that this was a part of the enforcement department at that time, right? So in other words, internal policy at the EEOC before there is a case, that investigation is assigned to the enforcement division and not to the law division. And both of these two lawyers were assigned to the law division. So if they didn't do any active and substantial work on behalf of the EEOC, there's no screening you have to do.

0:56:50 Thomas: Yeah.

0:57:42 Andrew: The rule doesn't apply. DFEH made two more arguments. They also pointed out that the minute this issue was raised, they did screen them off, and right, again, that might be somewhat pretextual in an ordinary case. Also, as we talked about, that there was a sharing agreement, a joint investigatory agreement to share information between the EEOC and the DFEH concerning its investigation of Activision.

0:58:09 Thomas: You kind of think that nullifies

0:58:11 Andrew: And therefore, it could not possibly have prejudiced Activision, even if any of this were true.

0:58:11 Thomas: All this BS, right? Are we even doing here, Andrew, this is weird

0:58:21 Andrew: I'm going to say the same thing I said 30 seconds ago. If this were any other case, that would be the end of it, right? Like when a government agency, and in fact, it's pled this way, it is really, really good legal writing, right, it says, if Activision chooses to disbelieve a sworn officer of the court's affidavits under penalty of perjury, it is free to pursue whatever remedies it sees fit, right? Which is strong language by an attorney to say, hey, man, we're the government. We got somebody to sign under penalties of perjury saying they had no involvement in this. That's it, we're done. We're going home here. The reason that that doesn't make us done and we're not going home here, there are a couple of things. The first is the EEOC has still said the opposite, right? The EEOP has

0:58:28 Thomas: Man

0:59:11 Andrew: Said in pleadings in a federal case, yes, these two lawyers were actively and personally substantially involved in our investigation of Activision Blizzard. Why you would do that, I cannot.

0:59:26 Thomas: So Weird, yeah.

0:59:27 Andrew: Somebody's lying. Yeah. I will point out, this pleading shows, and again, documents, because these affidavits are dated October the 5th, that the instant that the EEOC said, hey, we think you have an ethics issue, the DFEH sent the affidavits of these two lawyers over to the EEOC and said, no, we don't. Here's the two lawyers you're talking about. Here is them under oath saying they didn't have anything to do with it. Here's their supervisor saying they didn't have anything to do with it, aren't we done here? And the EEOC did not disclose that in its October 8th filing.

0:59:29 Thomas: This This is no longer Trump's EEOC. What in the world is happening here, yeah?

1:00:07 Andrew: It is absolutely not Trump's EEOC. And that gets to, that's an outstanding segue. Who are the players here? On the EOC side, it is Los Angeles regional attorney, Anna Park. Now, you hear regional attorney. You might not know. The EEOC is divided into 15 regions, each identified by its headquarters. The LA region is responsible for litigation in Southern and Central California, Nevada, Hawaii, the Pacific region, which encompasses Guam, the Northern Marianas Islands, Wake Islands, and American Samoa. So basically like a judicial circuit.

1:00:46 Thomas: Yeah.

1:00:46 Andrew: And as you might imagine, there's a hell of a lot of employment in Southern and Central California. So this is a high level official. She has been in her job for 20 years. She is a career public civil servant who I have looked up her records. She has prosecuted numerous cases of employment discrimination, particularly on the basis of sex. She's an outstanding public servant. I don't know. She is not a Trump hack. The flip side, the two lawyers who left the EEOC, remember, I told you in the first EEOP pleadings, it was like, oh, they packed up and went, kind of immediately to DEFA, and maybe that that was a, you know, an indication that, something was fishy and not how it happened at all.

1:00:46 Thomas: I was thinking that

1:01:36 Andrew: One of them spent eight years at the EEOC, left in July of 2019, did not go to DEFA until August of 2020. other one left in January of 2020 and went to DEIFA in July. Of 2020. They both came in at the position of assistant chief counsel. By the way, that person worked for the EEOC for 19 years. And now I'm going to put names on this. The names are Rumi Vuong, R-U-M-I-E V-U O-N-G, and Sue Ngo, S-U-E N-G-O. Don't have time to tell you how I was able to investigate and figure out all of it.

1:02:23 Andrew: It had to do with one name that was unredacted in a pleading and then a hell of a lot of time on LinkedIn. But I am 100% confident that these are the lawyers. I need to tell you, Sue Ngo and Anna Park worked a major case together, right? That case had to do with Republic Services, Inc., Republic Silver State Disposal, Inc. and it had to do with systematic discrimination against older workers. This is a waste disposal company. Basically they'd implemented this kind of head count. They were like, well, it's time to fire the, like, you know, old people who were supervisors, and everybody who was fired on that day was over 40, average age of, uh, of 55, um, and then they ran ads in the newspaper to refill all of those jobs Yeah, yeah, finding, uh, workers in their 20s and 30s.

So then they reached a settlement, right? The person who ran that trial was Sue Ngo, and the person to whom she reported was Anna Park. And so I, it's just, it is my, I, I just don't understand what happened. Now there's one other piece of information that, that I need to share with you, because it is about to go public. And it, and it undercuts the, the argument that I've just made. And it is this: Rumi Vuong, she was working, so there was no dispute, just so we're clear, Vuong and Ngo played some role in the DEFA investigation. Again,

1:02:29 Thomas: Huh. Oh.

1:03:13 Thomas: Yeah, that cannot do that, yeah

1:04:01 Andrew: That's fine if they played no role in investigation for the EEOC or no substantive role. And it's also fine if there was an agreement for them to do so, right? So I don't mean to suggest there was anything inappropriate about them working the case for Dethon. Right, it's double fine. This is not a good fine, okay?

1:04:11 Thomas: Sounds Like It's double fine. Oh Man

1:04:19 Andrew: I don't know if this triggers the ethics laws. I'm going to tell you them in a second. Vuong sent an email to an unknown number of Activision employees that says, "Hi all, we also wanted to follow up and alert you that you may be contacted by private attorneys seeking to become your attorney for this case. It is unnecessary and may be misleading or confusing. A private attorney would have to file suit in your name or get the court's permission for you to intervene as a named plaintiff in this matter. Please let us know if any attorney attempts to solicit your business for this."

Don't do that because because California Rule 4.3 prohibits you, as a lawyer who are adverse to unrepresented persons and you have interests that are adverse to them, from giving legal advice. Other than the one thing that the rule permits is you may advise the person to secure counsel, right? So in other words, if I sued Thomas Smith Company Enterprises and one of your employees sends me an email and is like, "Yeah, I'm glad you're suing Thomas Smith. Like, that guy is the biggest jerk I've ever had as a boss, blah, blah." I can't communicate with him and offer him legal advice. What I could say to him, and the only thing I would ethically say to him is, "Thank you for contacting me.

1:04:53 Thomas: What Why not Uh-huh

1:05:47 Andrew: As you know, I am adverse to your employer. I recommend that you procure your own counsel in connection with this matter. For me to say, hey, yeah, that's right. Absolutely. We'll take care of you. Don't, you know. By the way, let me know if anybody tries to to become your lawyer. I am not convinced that it violates the technical terms of Rule 4.3 because you could argue don't get a lawyer is not legal advice, right? This is what people argue about our disclaimer on the show all the time. But I certainly wouldn't do it. And so that's sort of where we come now, which is I'm out of hypotheses on anything other than personality conflicts, right?

I mean, there's some stuff that shouldn't have happened on both sides, you know, revealing privileged information, failure to disclose, failure to disclose that you didn't disclose. But at the end of the day, it certainly looks like Like, the EEOC and DEFA had an agreement to share information, working hand in glove, and then something happened, and it fell apart. And it feels like these lawyers are being picked at as pretext to sort of blow everything up. I can't give you any better than it feels Like, right? I mean, I've shared everything I've been able to find. Behind, certainly this is incredibly strange behavior.

1:06:14 Thomas: Huh Yeah

1:07:13 Andrew: So I'm I am talking to The Washington Post, I'm talking to reporters, as lots of people are trying to figure out what's going on here. Um, I can't tell you I figured it out yet, but I promise you, Thomas, when, when I do, uh, I'll, share it here first. So I

1:07:27 Thomas: I This is just bizarre. I mean, the only thing, I'm trying to think of what anyone's incentive is here, and I don't know that I have the complete understanding to do so, but, the no, for some reason the EEOC seems to want to help Blizzard out, because I don't understand why you would go through any of this. You know, I get the professional whatever, personality, something, but the, the end result of this is giving them a settlement that is much lower than at least DFEH thinks it should be, and sticking to your guns and trying to make legal arguments to undermine DFEH's attempt to intervene, right? Do I have all that right?

1:08:09 Andrew: I think you have it exactly right, Thomas. It doesn't make any sense. And, right, that's why, that's what I thought. It was very, very important to eliminate the, the fix was in from, you know, Trump hacks. None of these people are Trump hacks, right? They're all, and I, you know, know, and I praised Anna Park, but I want to praise the other two as well, Sue Ngo and Rumi Vuong. These are dedicated career public servants working in the field of anti-discrimination. I mean, Rumi Vuong has never had another job other than that, right? She came out, she spent two years as a clerk in federal court, then went to the EEOC, then went to DEFA, right, like this is this is a lifelong passion. So I, I don't know, I, I wish I had more than that, but, um, at least, you know, I'm bringing all of you along with me on our, on trying to figure this out

1:08:21 Thomas: Yeah. Huh.

1:09:01 Thomas: Wow. Well, Andrew, that was so much stuff packed into one episode. I don't think we have time for T3BE, for Thomas Takes a Bar Exam. I think I'll have to take a week off, you know, to, to reflect, to study, asterisk, there will be no studying done

1:09:01 Andrew: Okay This is this is the end exam too, so and

1:09:18 Thomas: Uh, but really fascinating. I am curious to to find out if we'll ever learn why, why the, why question of why all this with Activision Blizzard, but, uh, it's the story that keeps on giving. It keeps, who knows what we'll find out next. So we'll keep an eye on it.

1:09:34 Clip: And thank you, Let's go!

1:09:36 Thomas: Just time to thank our new patrons on patreon.com/law. Hope you're enjoying all the goodies, the ad-free content, you know, the Andrew's notes that has extra stuff in it, the, uh, early episodes, you get Tuesday's episode on Sunday, which, you know, that's that's amazing, I work really hard to make that happen. Enjoy all that stuff on patreon.com/law. And here are new patrons. I will start us off. Thank you to An Action Lion With A Commercial Driver's License. KangarooBeStoned. El Podcast Blanco de la Nueva Ultraderecha. Unidentified Flying Objection.

1:10:15 Thomas: And Left at the Valley. All right. Your turn, Andrew.

1:10:18 Andrew: Thank you to kybail, to Rebecca Cooper, to Dawid Sulejewski, to Daniel Hill Made Me Do This. Well, Daniel, thank you very much for whomever you made do that. And of course, to Charles Bacon.

1:10:35 Thomas: And that's our show. Thanks so much for listening, Andrew. Uh looking forward to seeing you on dry land. Hopefully you'll be able to still walk. I don't know if it's like an astronaut coming back from space. You'll not used to the ground being stable underneath you. Uh and we'll, we'll see you on on Tuesday's show. Don't miss it. Again, patrons get that early. So sign up on patreon.com. We'll see you then.

1:10:48 Andrew: Yeah.

1:11:01 Andrew: Until then.

1:11:02 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.

1:11:35 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.