OA545: The 1/6 Commission Continues To Do Work

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 545. I'm Thomas and that's Andrew. How are you doing?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:26 Thomas: Great. I just am looking forward to the show as always. All right. Well, lots more to talk about. We've got essentially a 1-6 commission show today. Big news out of the 1-6 commission. Bannon, and we've got a good explainer on the Trump documents thing that you may have noticed Andrew's addendum a few episodes ago as that was breaking. And of course, the QAnon shaman sentenced. I love that we just call him the QAnon shaman, like that's his official position. Maybe that will be an official like position within the Church of QAnon soon. I don't know. All kinds of stuff to talk about. But but first, couple of announcements. Reminder that VulgarITY for Charity is happening, um, we've already hit you with a number of these, but it's another reminder, get those, donate to Modest Needs. You just search for VulgarTY for Charity and look at the page that comes up, uh, that'll tell you the instructions. It's a great, great cause.

0:02:20 Thomas: We're happy to be in part of it and we can't wait to do some roasts. So just another reminder about that very good cause put on by Scathing Atheist and Cognitive Dissonance people. It's so fun to be a part of, breathtaking and like how much they have raised for charity that been a part of, and it is helping real people. So check that out.

0:02:39 Andrew: Absolutely. Yes.

0:02:40 Thomas: Once again, before we get into it, we've got to thank, uh, I'm not gonna, what's octiles, we did eighths, right? What do you got? A word for that that.

0:02:48 Andrew: I'm Gonna say, say octiles, it's a tile With octopus arms, yep.

0:02:52 Thomas: It's definitely not octiles, but we're going with octiles. We're going to think our, you know, what we, I think we're on the fifth octile of new patrons that you have. And then I'll get the sixth octile because we had so many new patrons. Why don't you go ahead and start us off?

0:03:10 Andrew: And thank you to Tijmen, to Alan Jewel, David Carr, Heather Horn, Trent Voigt, Pete Geoffrion, Richard Cope, Andrew Fratepietro, Clark, John Ewing, Ken Goydan, Pamela Grim, Graeme Kostich, Jacob Neiman, Irish wrist watch, Nice Try Capable Ape. I love that we're all, we're all basically capable apes. Kathryn Mannion, Katie Hanson, Brian Brondel, Elizabeth Norman, Brian Yardman-Frank, jon riederer, Michael Dempsey, Nicholas Walvoord, Chris Crigler, Subpoena butter jelly time, that's excellent, Colt Jesse, and Frances the Mute. Take it away, Thomas. You

0:03:55 Thomas: All right. Thank you to Kelli Walsh, Jose Juarez, RealSquigglyGUnited6969. Okay. Tony Molloy, Alenka, PatriotQuokka, Kyle Ragsdale, Janet Tait, Diego, Stacey Coleman, Sufganiyot are objectively better than Latke's according to Zippy the Feral Hanukkah Witch. Okay. Sorry. I probably didn't pronounce some of those.

0:04:23 Andrew: This Is Zippy The Feral Hanukkah Witch Is an A-plus embedded Name.

0:04:26 Thomas: Yeah. I don't know what's happening there at all, but I love it. Thomas Battelle, Michael Knowles, Christopher Reed, Paul Todd, Indiana, and Marion the Corgis. Oh, well, there you go. Chef Cori. I almost thought that was Chef Corgi and it was going to be a Corgi theme inadvertently. And. Nathan Hacker, Christopher Anderson, MaxOtt, James Hilton, Nick Zadrozny, Kate, Francis Rodriguez, Kyle, Ben Martin, Lucca Enkler, and Andrew Sovine or Sovine or Sovine or something like that. Thank you so much, new patrons. Hope you enjoy the goodies the uh Rittenhouse coverage the the uh Q&A that'll be coming up the next Law'd Awful Movies all kinds of good stuff thanks for pledging All right, let's start off with some... Oh, this is a good... Oh, I can't wait. This is a good Thomas was wrong. This is my favorite kind of Thomas was wrong because I correctly remembered information that was good that I took in from what I thought was a good source, but I'm wrong because cops are liars. So that's, so I don't mind like I'm

0:04:28 Andrew: Oh. Yeah. Your

0:05:36 Thomas: Not. All right. I'll, yeah, I'll take that.

0:05:36 Andrew: Favorite kind of Thomas was wrong.

0:05:38 Thomas: This was a, I saw this in a serious curious documentary, like something where I would have, you know, taken it at face value, like I watched a documentary about the the opioid crisis, and in it were a number of police officers who swore that like they were touched with fentanyl and they passed out because of it, and you know what, like, drugs are crazy, I don't know, like, and I don't mean just just like drugs, like drugs like criminals do, just in general, chemicals, drugs, things, like that's a believable thing to me that could happen because it's a powerful drug. I don't know. I'm not a scientist. Turns out that's probably just police lying about that and having panic attacks because they're so scared of fentanyl. So, yeah, Thomas was wrong on that one. It appears that that isn't really, now it's dangerous chemical. Don't don't get me wrong. We've had people write in and be like, yeah, it is very dangerous, but it's, that was, I guess, a bit far-fetched. So I was wrong about that, because cops are liars.

0:06:26 Andrew: I, I, I love it. Yeah.

0:06:30 Clip: Down the law, down the law.

0:06:34 Thomas: So, some 1-6 commission updates. We but first off, Andrew, I think you've got a, Andrew was right about Bannon, correct?

0:06:37 Andrew: I I do As always happens when there's significant news, Steve Bannon was indicted on Friday, the day after I predicted that he would be indicted when we recorded on Thursday. I covered it briefly with Eli on Clean Up on Aisle 45. I'm going to explain that a little bit. That this is a really significant development. It is so big that one of the stories, right, which is buried in the attorney grievance complaint filed against John Eastman, you know, the guy who drew up the blueprints for how Pence could steal the election. We're going to talk about that because on that is just a treasure trove of new information that we didn't have before that I'm going to do kind of line by line. But actual judicial developments this week. So Steve Bannon is indicted. We're going to link the indictment in the show notes. I don't want to mislead you. The only criminal charge, you have to be indicted on a federal offense. The only criminal charge that applies is to 18 U.S.C. 192.

0:06:49 Thomas: Yeah. Wow.

0:07:39 Andrew: That's a misdemeanor. OK, it carries a fine. It carries potential jail time. But nobody has ever done jail time for this statute. But if you're if you'RE outraged as a result of that, you should not be right. Like that. That's the only law that applies. Like you can't indict Steve Bannon for being a jerk. Right.

0:07:54 Thomas: Yeah, I saw a lot of people who like, oh yeah, Andrew. He's, he's not even in jail right now. So you're wrong.

0:08:00 Andrew: He has voluntarily surrendered uh to the FBI uh and waived the uh reading of the indictment, so we will be spared, um, or he will be spared. Uh, we will not get the glory of watching a uh a Steve Bannon perp walk, which is kind of sad, um, but that also expedites the process, uh, which, could. So these charges are, every person having been summoned by a witness by Congress to give testimony or to produce papers who refuses to do so shall be punishable by a fine of not more than $1,000 nor less than $100, and imprisonment in a common jail for not less than one month, not, not more, more than 12 months.

0:08:40 Thomas: Boy, he's gotta be in prison with the commoners, huh?

0:08:41 Andrew: Yeah. He did.

0:08:43 Thomas: Not going to be with like Bernie Madoff.

0:08:44 Andrew: That, yeah. Right, that common jail language lets you know that this was a 1938 law, right? So, um, pretty, yeah, pretty sparsely applied, um, we talked very briefly about the only three cases in the last 30 years in which folks have been prosecuted under this statute, and all three of them served probation before being pardoned. I want to go into what we didn't talk about on cleanup, and is super appropriate here, is of two things. The right? First is the distinction between this case and all the other cases. And in particular, the distinction entre this case, and the last time, and this is an Uncle Frank argument you're going to hear, okay? The last time that we had a recalcitrant Democratic witness who was Attorney General Eric Holder. And so I promise you, if you still have MAGA hat-wearing idiots in your family, on your Facebook thread, whatever, they're going to be like, oh yeah, well, Steve Bannon, blah, blah.

0:08:54 Thomas: Oh, wow. I would have thought 1797.

0:09:49 Andrew: Eric Holder, Eric right? Holder was in fact held in contempt of Congress in connection with Operation Fast and Furious, which was another one of the... Boy, I don't have time to explain Operation Fast or Furious.

0:10:00 Thomas: Yeah. Okay. So there's two people who, they drive cars. Yeah, family isn't, man, where do I I start? Where do I begin?

0:10:05 Andrew: So Vin Diesel, yeah. Look, it was a botched executive branch operation that wound up with Mexican drug cartels getting a bunch of firearms, right? So Yeah, it's a thing that went bad. Um, and so then of course Daryl Issa decided to turn it into his personal crusade, the way Republicans do with everything, right? The reason we had 9,700 hearings on Benghazi, right?

0:10:18 Thomas: Yeah.

0:10:32 Thomas: Know we don't have time, but like Like. Like, I'm not going to be sitting here on the side of, like, the ATF who's, you doing these really irresponsible things with guns and the, you know, like I don't, I don't, with Benghazi, that's clear, like they're full of crap and whatever. With this, it actually was a scandal, right?

0:10:48 Andrew: So yes, with an asterisk, I agree with what you're saying. We, so maybe we'll do a deep dive on it at some point. It's totally irrelevant at this point in time, but, uh, but

0:10:50 Thomas: Okay. We don't have time, but yeah. Ooh, that' good idea though. Historical deep dive. Once we run out of current things happening.

0:10:57 Andrew: Yeah, yeah, right, yeah, once. So there are five major points of difference between Eric Holder and Steve Bannon. And I will tell you, if we got all five, Democrats would be over the moon. Right. If we get one of the five, like, I think a lot of us will be really, really happy. So here's the way to set your record straight with Uncle Frank with respect to Eric Holder. Point number one, Eric Holder previously voluntarily complied with the subpoena and testified at length and truthfully before the House Judiciary Committee. So he actually showed up the first time. And then what happened was in October of 2011, the Justice Department released 7,600 pages of additional documents to the same House Judiciary Committee investigating Fast and Furious.

0:11:48 Andrew: Republicans, as they do, lied about those documents and said, "Well, it looks like these documents show that Eric Holder knew about Operation Fast and Furious way before he told us, so we want him to produce a bunch of his documents and come back and sit for more testimony." By the way, an independent IG investigation, Inspector General investigation, later showed, showed that that was complete nonsense, right? That Eric Holder, in fact, testified truthfully. But nevertheless, so that was the gravamen. The idea was, "Hey, Eric Holder, we want you to come back and answer more questions and produce more documents because these documents show that you were not truthful the first time around." Put a pin in that IG investigation, by the way. So then in April 2012, Daryl Issa announced that he was drafting a contempt of Congress resolution because Eric Holder would not come back, allegedly saying that he was stonewalling the Justice Department.

0:12:47 Andrew: Point number two, Eric Holder, in fact, made numerous efforts to compromise and reconcile here, including offering the the committee 100% of the documents that they wanted if they would just agree that that would stop. June 19th, 2012, Holder met with Issa in person to discuss the requested documents. He said, "I will give you all of them if you provide your assurance that doing so would then satisfy the subpoenas and you would withdraw the subpenas and not issue new ones." And Issa said, "Are you kidding? Like, I'm going to harass you until the end of time. No deal.

0:13:24 Thomas: Yeah. What don't you understand about this, man? This isn't about facts. I just want to be angry and make a show of it,

0:13:30 Andrew: Right. And then the oversight committee the next day, June 20th, voted 23 to 17 along party lines to hold Holder in contempt of Congress for not releasing the additional documents that they had requested. Point number three, then the sitting president issued a claim of executive privilege that day, unlike here, where the sitting President has not done so. Now, you want to argue that's the weakest point of distinction? Fine. Obama said, yep, those documents that you want are executive privileged anyway, and I'm now directing Eric Holder not to release them. By the way, put a pin in this, when a court came to review those documents, the court wound up waiving the executive privilege because those documents had already been released to the the public, but went out of their way.

0:14:18 Andrew: This was Judge Amy Berman Jackson, who went out of her way to say, we are not saying, and this court's ruling should not be interpreted as saying that those executive privilege claims were not meritorious. So in other words, plausible. We don't have a judicial determination that they were meritorius, but no indication that that these were fraudulent or overly broad or pretextual claims of privilege. So point number three, plausible claims of executive privilege by the then sitting president. Point number four, Eric Holder didn't just say, OK, well, president says it's executive privilege. That's it. We're done. Time to dust my hands a la Monty Burns. No, he said, look, I'm going to turn all of these died. 100% of the documents were turned over to the aforementioned inspector general investigation, right?

0:15:07 Andrew: So independent, because back then we didn't have a president who fired inspectors general that he didn't like. There was a 19-month review by the DOJ office of the inspector general that cleared Eric Holder of any wrongdoing in connection with Fast and Furious, found no evidence that Holder knew about the operation before 2011, which was exactly what he testified to Congress. By the way, that same investigation found various ethical lapses by 14 lower-ranking officials and recommended various forms of disciplinary action. So again, not a rubber stamp by a pro-Obama hack. Independent IG investigation looked at 100% of the documents and wound up releasing almost all of them to Congress, in turn released almost all them to the public.

0:15:57 Andrew: So point four. And point five, again, that investigation published those documents. Congress got them. And so over the remaining documents, that was the lawsuit that I told you to put a pin in, they went to Amy Berman Jackson and said, hey, there's no more a valid claim of executive privilege here. Judge Jackson agreed, said, yeah, the production of most of these documents waives the privilege, so Congress deserves all the rest of the documents. But there is absolutely no basis to continue to hold Eric Holder in contempt of court. That is, is, quote, entirely unnecessary, end of quote. Quoting from her opinion. We get that from Bannon, I will be over the moon, right?

0:16:43 Thomas: Yeah.

0:16:45 Andrew: We're not going to get that for Bannon.

0:16:46 Thomas: So it does, now that I know we weren't doing our deep dive, but it does sound now a bit Benghazi-esque where it's like, okay, maybe, yeah, something happened. Like, yeah. Something happened in Benghzi and there may have been problems with security or something, but like Like the just trying to tie it to somebody forever, like, and essentially Republicans using that as a fake scandal to try to tie it to something. To they're trying to take down who's like, I don't know what to tell you. I've given you everything. Like, that's the similarity, I guess. Right.

0:17:14 Andrew: That's right. And I think if you look at folks who were close to Eric Holder, and oh, gosh, I should have said this. Eric Holder was a partner at Covington and Burling when I was an associate there. Between post-Clinton, uh, he rejoined the firm in 2001. Um, so I, I do know Eric Holder. Can't recall if I ever did work for him. I should have announced that, folks.

0:17:24 Thomas: Ah,

0:17:33 Andrew: Close to Eric Holder's, say that this kind of, um, politicized Eric Holder at the end of Obama's second term. Became, right? Sort of much more and involved that the right wing was sort of not fighting in good faith as a result of this. So I think there's a really fascinating story there of, like, you, you created part of the monster that you thought you, you had. We would be remiss not to point out, I remember it at the time, the tremendous amount of, again, continued, not very coded racism in an African-American attorney general and an African American president. So are some of the similarities that I think are there with, uh, with Benghazi, I think Daryl Isa, no doubt, in

0:17:33 Thomas: Well,

0:18:22 Andrew: My mind, wanted to bring down Eric Holder, uh, and, you know, sort of ran with this crusade until he found another crusade to try and bring someone else down because Daryl Issa is a piece of human garbage, so official opinion of Opening Arguments. So my way of saying all of this is, um, people who are, so let me bring down, this is not just to arm you about why your Uncle Frank is wrong when he said, well, you know, Eric Holder got up. It is to tell you that bringing contempt charges that were referred out by Congress to the DOJ against a recalcitrant witness is, in fact, a pretty significant process. And everybody who has previously been subjected to this process, you can say, oh, they didn't have to bust rocks or press license plates or whatever. But in every case that I've seen, they had to turn over information, right. And at some point you can keep issuing subpoenas to Steve Bannon, and, right, if he keeps defying them, right, you, you keep going back to

0:18:33 Thomas: Official opinion of opening arguments.

0:19:24 Andrew: Court, and the court's like, wait, are you ever going to comply with these? Uh, and he can either say, you know, yes, or something that isn't yes. And if he tells a court something that isn't yes, then all of a sudden, I think you'll break the mold, and I think the court will say, well, okay, nothing but going to jail is going to do this for you, huh? It

0:19:42 Thomas: Okay. That's what I was going to ask. I mean, it's, that's what it gets up to, because it sounds like, so that's the common jail, we'll get the common jail at that point

0:19:49 Andrew: Again, I think it's, on I think Bannon, and I talked about this a little bit with Eli on cleanup, um, we forget Bannon cooperated with the Mueller investigation, right, like, I, I Think Again, probably lied a lot.

0:20:01 Thomas: Yeah. That Was in his younger hippie days.

0:20:05 Andrew: Yeah, right. Think Bannon, some point, be persuaded to give them the things that they want. And, we now know a little bit more about what they want, and we know a lot more more than they want thanks to a bar complaint against John Eastman. I love it.

0:20:17 Thomas: Okay. Well, I will be the negatron to your positron, or whatever, the optimist prime, and assert that I think Bannon has realized this is good politically for him, and the whole line is that this is a persecution, against a political persecution against a, you know, whatever. So I don't anticipate him, I think he'll fight it as long as possible because he thinks it's good for him, he'll just fight it forever, so we'll see. All

0:20:45 Andrew: I, I don't think that that's an unreasonable position to take, but his guy is not in power anymore, so you, there are limits to, uh, to how much you can fight. But, but we will see. It's

0:20:57 Thomas: Okay, and then a little bit more on, you, you snuck in an uh addendum last week because this happened just after we were recording, the stay of the Chutkan verdict, um, this was something you, well, I think you didn't predict it, but you said it was still a possibility, right? Right. Oh,

0:21:15 Andrew: So what this is, and this was also interesting because, uh, the, the D.C. Circuit, so let's take a step back, Judge Chutkan, uh, U.S. District Court for the District of Columbia, issued an injunction that prevented the president of the United States, ex-pres, former president of United States, from asserting executive privilege, and ruled that, in fact, the National Archives could begin to turn over documents to the 1-6 Committee. The former guy, Donald Trump, then appealed that to the D.C. Circuit and also requested, and we've talked about this, an administrative stay pending that appeal. And the reason to enter the administrative stay is, if they turn over the documents, that moots the case, right?

0:22:01 Andrew: And so appellate courts will very often say, yeah, yeah. Okay. Okay, we'll grant you a stay for a very short period of time so that we can actually consider the merits of your appeal. And that's what they have done here. The briefing schedule is that Trump's brief was due two on the 16th. Response, the opposition by the DOJ will be due on the 22nd, the reply brief due on the 24th, and oral arguments heard November 30th, right? Right. So the entirety of this matter is now teed up before the D.C. Circuit, before a panel of not just smart judges, because remember, on the D.C. Circuit, you can now get Naomi Rao. You can now give Justin Walker.

0:22:46 Andrew: You could get both of them on the same panel. But this is judges Millett, Wilkins and Jackson. That is Ketanji Brown Jackson, just elevated by by President Biden a couple of months ago. Fantastic panel. Millette was on the panel in the Mazars case, right, in the Trump subpoena of Trump taxes. We now have Trump's brief. And if I tell you it is written by seditionist grifter Kraken lawyer Jesse Binnall, that tells you that it is stupid. I want to tell you, for Jesse Binnall, this is amazingly stupid.

0:23:23 Thomas: Wow. So, not his best work.

0:23:26 Andrew: You're right. But yeah, this may be try harder next time. Can't you find some terpsichors, to go quote. Yeah. And this begins right on page one in the caption. And some folks have made fun of this, but I don't think they've made fun of it enough, right? The caption says, Donald Trump, in his capacity as the 45th president of the United States. Do not want to skip lightly over this. This is sovereign citizen levels of insanity. And I mean that in a very specific way, because it is copying off of a real legal thing to do a thing that is not the law, will never be the law, and nobody with a functioning brain cell would think would be the long. Very next line will say, Benny G. Thompson, in his official capacity as chairman of the House Select Committee to investigate 1-6, right? They're sort of copying that and being like, "Oh, well, if you're in your official capacity, we can be here in a capacity too." But the problem is that it doesn't understand what those words mean in court, right. When you're an elected

0:23:33 Thomas: Yikes. Oh. Okay. Here we go.

0:24:33 Thomas: Oh.

0:24:33 Andrew: Official, you can you can do one of two things, sometimes both. So Right. Imagine that Ted Cruz comes over and kicks you in the shins. Right, When, when you sue Ted Cruz, you will be suing him in his personal capacity because kicking you is not part of his job duties as a member of the Senate. On the other hand, if Ted Cruz defames us on the floor of the Senate, we would have some immunity problems, but we would sue him in his official capacity as senator for the state of Texas.

0:25:03 Thomas: Yeah. Don't think you picked a great example for the first one. You should have said, imagine if he committed a string of murders that still haven't been solved to this day.

0:25:12 Andrew: Exactly right. You're right. And so when somebody is a sitting government official, you have to specify. It's a pleading requirement. The case can be thrown out if you don't, or if you get it wrong. You have to say, am I suing this person in their official capacity or in their personal capacity, or both? Is this a thing that they're doing as part of their job as a public servant, or is this a that they do because they're just a human being? Was no such, there's no such work.

I, like, just copying that over and being like, "Well, I have a capacity" is it's mind-blowing, and it shows, right, the level of, I, I'm reminded of, like, the, uh, the one of the promo clips for the, for the movie Moneyball, which, by the way, read the book, you know, I, I recommend reading, uh, anything that Michael Lewis ever wrote, but, uh, it's Brad Pitt going, uh, "Here's, here's everybody else, then there's 50," you know, "there's 50 feet of crap, and then there is us," right? And, like, that's where Trump's lawyers are right now, right, like find the worst lawyer you've ever found, go 50 feet a crap below

0:25:43 Thomas: Yeah. Yeah, you

0:26:18 Andrew: That, at and then you start with the people who have started to be disbarred, and, and I don't even know where you dig through to find a Jesse Binnall

0:26:27 Thomas: Go through 50 feet of people who have watched an episode of Perry Mason who would be better than this guy, and then you get to this guy.

0:26:32 Andrew: Yeah yeah yeah So what about the arguments on the marriage? They are terrible. Make only one argument that I would rate as a coherent legal argument. It was also the argument that lost in Mazars. That argument was, you can't use a congressional subpoena to investigate criminal wrongdoing. A congressional subpoena is the legislative branch. They only have subpoena power to find information to help them craft new laws. If you want to prosecute somebody for criminal wrongdoing, you need the DOJ to issue the subpoenas.

0:27:08 Thomas: But what if somebody's committing a crime that the Congress would like to know details about so that they could write legislation to try to prevent that?

0:27:17 Andrew: Exactly right. Right. And so in Mazars, right, I said, look, like there is a little bit of intuitive appeal to this. Right. Like it is clear Democrats would like to find, you impeachable criminal activity in Trump's in Trumps taxes. But it's also clear that if they are to pass legislation on emoluments, on, you know, requiring presidential disclosures, on requiring presidents to divest themselves of their ownership in corporation, right? Like all of that. It's clear that Trump's tax returns would aid them pursuit of that legislation. And as you point out, those arguments, A, those arguments won in Mazars, right. So we already know where the line is.

0:28:03 Andrew: And they're much, much stronger. The counter arguments are much, mucho stronger here, right. The, the counter argument is, um, the Electoral Records Act uh is unbelievably vague, like everybody agrees that it's super vague, uh, it was written in, you know, 1805, um, we'd like to find out ways to make sure that it is bulletproof from a future administration trying to hijack the, this election, so that we can write a better statute. And there isn't a judge on earth that isn't going to look at that and go, "Oh, yeah, that's a really good argument," except, of course, for some members of the U.S. Supreme Court, which we'll get to.

0:28:45 Thomas: Me make sure, sure I understand, but by this argument, would they have not been able to do, like, the 9-11 Commission, because you can't subpoena people related to the crime committed on 9-11?

0:28:56 Andrew: Is certainly one good counter-argument to, and by the way, again, this is their best argument, It goes downhill hill from here. But yes, right. They are arguing your real motivation is finding criminal behavior. And that's beyond the purview of the legislative branch. And the response back is, no, it isn't right. We are. And I kept mumbling over the the proper terms. We can leave it in. But but it is the Electoral Count Act. Right. It is. We're trying to fix the Ele electoral Count Act and And knowing all the ways that you thought it was broken are a really, really good starting point for how we can fix it against an administration, a corrupt administration like yours, trying to hijack it again, right? I think they're not going to have any problems over the only good argument.

0:29:45 Andrew: It's also a grab bag. That good argument is made on page 20 of their 68-page brief. Brief. The rest of it is a collection of terrible arguments, right? Like on page 19, it says you have to have existing legislation. And that's just false. That just misstates the law.

And again, I'm kind of happy that one of the judges on this panel was on the Mazars panel on the way up, because Judge Millett can say, I seem to recall that there was not pending legislation in the the Mazars case, how do you explain yourself, Mr. Idiot? And that's going to be a lot of fun when they dress him down. Repeat that when they are trying to meet the Mazors factors, right?

And the Mazars factors is an O'Connor-like four-part test that says, you know, whether the legislative purpose warrants the significant step of involving the president, requires the courts do insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective, that courts should look at the nature of the evidence, and fourth, that they should assess the burdens imposed by the request, because there might be, you know, intra-branch fighting. None of those are a good argument here, and their efforts to say that are unbelievably weak. I also have to say, then they have a whole bunch of arguments about privilege, in which they say one of the truly dumbest things that Jesse Benall has ever said. And again, I know this is sounding like hyperbole piled on top of hyperboly, but

0:31:16 Andrew: This page 35, quote, executive privilege can only be invalidated pursuant to a demonstrated and specific showing of need, end of quote. We just did a whole segment about how, no, it can be invalided when you waive it. And How do you waive it? By deciding to waive it, by releasing documents to the public, right? Like, it is just, they have taken bits of court hearings, you know, bits of prior cases, uh, and they're just, like, packing with these bad citations, uh, and, and kind of throwing everything at the wall. This is not sanctionable. I should I should be clear on that, these are, right, bad legal arguments, uh, made by a bad lawyer, but that's different, that's different than lying

0:31:16 Thomas: Yeah Is this sanctionable yeah they're just, like, "God, you suck at your job," but not to the point where like we can, you know, do anything about it you're just really bad at your work, you're

0:32:04 Andrew: Yeah yeah And so, look, the end game is for the D.C. Circuit to rule on the merits of this objection in such a way that the inevitable immediate reply of "let's go to the Supreme Court" is either met with a shadow docket ruling in our favor that says, "Hey, we're going to deny this request for an injunction to block the D.C. Circuit's ruling from going into effect because, um, you know, they're really, this is just relitigating factual statements, uh, and the D.C. Circuit, uh, appropriately set them out, uh, and got the law right, and there's just no need, uh, for us to, to take this up," or if they granted administrative stay and hear it for, to embarrass, uh, know, Neil Gorsuch or Brett Kavanaugh, such that they, they look at it and go, "Yeah, I definitely do not want a future Democratic president to be able to make arguments this bad and win."

Now, mind you, that's not the standard we should be looking at for this. And it goes to show, this sort of brings the whole episode together, it goes to show just how far our Supreme Court has been degraded. Because I will tell you, you give me the, the 2016, right, the pre-Anthony Kennedy retiring Supreme Court, and this is a slam dunk? This is an eight to one, nine to nothing opinion. The reason for that is, as, you know, more and more radical howler monkeys have been appointed to the court, right, that's emboldened Alito and Clarence Thomas to sort of let their inner howler monkeys out.

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0:37:04 Thomas: Go to xchairoa.com and save up to $500. One more time, that's xchairoa.com. right. All right. Next item. We Boy, probably all saw that the QAnon shaman in quotes was sentenced and sentenced pretty severely. I think the most severe of anything yet. Right.

0:37:24 Andrew: Exactly the same sentence that Scott Fairlamb got, 41 months, from exactly the the same judge, and this is exactly what I predicted he would get on the show. Uh, once, uh, Judge Lamberth kind of set the benchmark, so now we know what those who used violence on one six will get from court when they plead guilty.

0:37:44 Thomas: Did he use violence? What did he do?

0:37:44 Andrew: Yep. He was not charged with, you know, hitting a cop in the same way that that Fairlamb was. He did two things. Number one, he was carrying that flag like a spear. Right. And running through. And we recall kind of those iconic shots. And also he left a note on the Senate dais. Right. Right. Where Mike Pence was standing that said, "It's only a matter of time. Justice is coming." And so you put that together, and and the court said, "Look, yeah, that is, we're going to construe that as a threat, and we are going to constru, you know, you marching around with the flag like it's a battle lance as as carrying a weapon." So, you know, that means anybody who has any kind of plausible connection to violence is going to get 41 months on a plea deal, which means if you go to trial, you're looking at lots more than that. Um, so there we go.

0:38:39 Thomas: Right, just as you predicted. And, uh, yeah, just take two seconds to say, I don't know why we have to use this as an opportunity to like make fun of his diet and say that people should be deprived of their dietary needs in prison, but that seems to be what people like to do with this guy. I don't know why, but anyway, moving on from that, yet another line item on the, uh, we Covered This Eastman, um, gosh, what would you, what would call that, a, uh, memo? I Don't, yeah.

0:39:01 Andrew: Yeah. That. The The, the handbook for, uh, for how to steal an election. Uh, six page memorandum written by, uh, racist, uh, fringe Federalist Society, of course, uh, professor John Eastman, who has, uh, completely gone over, uh, that, to the pro-insurrectionist side. A result, States United for Democracy Project has filed an initial bar complaint back when that first memo came out with the State Bar of California, and they have since been asked to provide supplemental information, which they have, and this supplemental information super interesting in terms of helping to parse through what the 1-6 Commission is doing. So I'm going to link their memorandum in the show notes.

0:39:56 Andrew: But it begins with, since we filed our initial complaint six weeks ago, a great deal of new information has emerged that strongly confirms the allegation of unethical conduct in the complaint and underscores the need to investigate them. These revelations highlight the need for the bar to undertake a thorough review. View. Perhaps the most striking piece of new information comes from a former staffer to Mike Pence, a guy named Greg Jacob. And that is where a lot of this evidence has come from. Jacob served extensively in government under Republican presidents and is now a partner in a private law firm. Pence was the target of Trump and Eastman's campaign to hijack or disrupt the the electoral count. And Jacob was an eyewitness to Eastman's role in it. Jacob's words, as an eyewitness that Eastman and Rudy Giuliani's conduct involved a web of lies and disinformation and, quote, "snake oil wrapped in the guise of a lawyer's advice."

0:40:55 Andrew: Yeah. So what is this new information? Here's what we find out. Number one, and this kind of flew under the radar. The information was public about this, but I didn't know until I read parts of the idiotic puff piece that the National Review allowed Eastman to do when he was in damage control mode. There were two legal memoranda that were sent out. There was a two page memorandum sent out on Christmas Eve that was basically like, hey, we shouldn't give this, you know, we should give up the fight. We're going to use the Electoral Count Act and, you know, that cheater Biden from taking office. The significance of that being on Christmas Eve is that's after all of the slates of electors were reported.

0:41:43 Andrew: It is two weeks after the Safe Harbor deadline, in which there were no competing slates from any of this, right, like it was, it was two weeks after they knew their position had zero merit. Okay. Um, Eastman cited several instances of alleged statistical anomalies in the vote totals in support of his argument, but the sources for his claim, and I'm reading this word for word, included an anonymous author and a suspended Twitter user named Duck Diver 1919. Um, so yeah, yeah.

0:41:53 Thomas: Yeah. Oh.

0:42:11 Thomas: Yeah, it's Great sources. There. Yeah.

0:42:13 Andrew: Duck diver 19. Number All two, did you know there was an insurrection war room?

0:42:18 Thomas: Did not know. There There was an insurrection. War.

0:42:20 Andrew: I did not Know this either. So to implement that strategy, the Trump campaign established a war room at the Willard Hotel in Washington, DC, very well-known hotel in downtown Washington, interestingly not at the Trump Tower Washington, DC, but, you know.

0:42:34 Thomas: Well, he was still in the White House at this point, right? So couldn't have he he literally could have been down where they in the basement where they watched Bin Laden get killed, right.

0:42:37 Andrew: It Could have been anywhere, but it was deliberately not on the premises, right. Uh, the, the war room sought to make the case to Pence and to ramp up pressure to take the actions that Eastman was recommending in his memo. The war room's activities included, quote, "finding and publicizing alleged evidence of fraud, urging members of state legislatures to challenge Biden's victory, and calling on the Trump-supporting public to press Republican officials in key states." From January 3rd to January 8th, that is two days after the insurrection, Mr. Eastman stayed at the Willard Hotel and was actively involved in the war room. Other participants in the war room include Giuliani, former White House strategist Steve Bannon, former New York Police Commissioner Bernie Carrick, which helps explain why he's on that list of subpoenas.

0:43:34 Andrew: A retired Army colonel that I have never heard of, and I need to do the deep research on this, named Phil Waldron. I don't know if you've heard of that.

0:43:42 Thomas: No, I just it fits, though.

0:43:44 Andrew: Yeah. And a Tea Party activist known for submitting baseless fraud claims in court, Russell Ramsland. And if you're remembering that name, that's the dude that filed the affidavit in all of the crack-in litigation about how the ballots were sent overseas to Europe and just, you know, an out and out fraudster. In total, the Trump campaign spent more than $50,000 on rooms and suites in the Willard Hotel in early January. So, yeah, we need to do some deep dives, figure out who Phil Waldron is. But that's your core of the group of folks who led the White House planning on the the insurrection. Number three, Eastland was involved in pressuring Pence's staff, including Jacobs.

0:44:30 Andrew: Again, I want to point out here, this information is coming partially from a draft op-ed that Greg Jacob wrote, but then never published. And also, this guy stayed working for Pence all the way through to the end of the administration. So, you know, let's not hang a superhero code on him yet. Right, like He's still a coward, uh, but you know, this was a bridge too far for him, so

0:44:47 Thomas: Right. Yeah. Well, I mean, they almost killed the guy who was working for. So, wow.

0:44:56 Andrew: Right. Yeah, after the Secret Service escorted Pence out of the Senate because of the incoming violent insurrectionist mob, Jacob uh emailed Mr. Eastman to criticize him for pushing the vice president to stop the proper certification of those votes. Jacob wrote to Eastman, "Thanks to your bullshit, we are now under siege." Eastman responded, "The siege is because," all caps, "you and your boss did not do what was necessary to allow this to be aired in a public way so that the American people can see for themselves what happened," apparently referring to former President Trump's false claims of voter fraud. After the insurrectionists were cleared from the Capitol building and Pence and the joint session of Congress returned to the House chamber, Eastman still did not relent.

0:45:43 Andrew: Instead, he kept up his pressure campaign, writing another email to Jacobs saying that Pence should still not certify the result and, in fact, should use the insurrection as a new justification. This is astonishing to me. Eastman said, "Look, you're already in violation of the Electoral Count Act because you allowed debate to extend past the allotted two hours and you did not reconvene," quote, "immediately," end quote, "as the statute requires." Wires So you should now use that as a basis to say the Electoral Count Act doesn't matter, like, since we're in violation of it anyway, I just get to decide. Astonishing and terrifying. And next, uh, that that Eastman then, of course, lied about all of this in public. I already mentioned, uh, he did a little tour of Fox News and he there was a puff piece in the National Review, interview, uh, that was, uh, repugnant, that they allowed that that interview to go to go forward, um.

0:46:42 Andrew: Then says basically, like, "Well, you know, I, I was just kind of kicking around some ideas, uh, and, you know, it would be crazy to actually do them." Uh, the evidence is overwhelming, uh, that that, was not the case. He was not just, like, you know, sort of throwing out, you know, "Well, somebody might argue X, but" was in fact actively attempting to persuade Mike Pence to, you know, lead a coup. The arguments were that he advised that it was, quote, a fact that the Constitution assigned to the vice president exclusive and unreviewable authority. And that's the whole point of kicking out the Electoral Count Act, right? Right. The idea is, OK, you get rid of this law that Congress passed and who knows what that means.

The vice president has the inherent power, one, to violate the Electoral Count Act of 1887 and the concurrent resolution of Congress incorporating it. By two, receiving certificates from governors of states that Biden had carried, even if there were no competing slates of electors from that states. And three, adjourning the joint session, number four, over the objection of both houses of Congress and without subsequent judicial review.

0:47:00 Thomas: Yeah.

0:47:50 Andrew: All four points of those are wrong as a matter of law, objectively wrong on the order of saying the president could be 12 years old. They are not found or they are directly contradicted by the plain text of the Constitution. In his public statements, and this is a really good illustration we've talked about, like how you can argue conditionally, Eastman has offered three defenses to these charges. First, that the memoranda do not accurately reflect the advice he actually gave, and I'm going to speak to that in a minute. Second, the advice he gave was accurate, and third, that he gave the advice in good faith.

0:48:31 Andrew: So I didn't say it, but if I did, I was right. And in any event, I did so in good faith. These are all, and again, it's okay that they're contradictory. The argument he's saying is, well, I put this down on paper, but what I said to people was, this represents represents an extreme, almost crazy. And I keep using the word crazy because that's the word he used in the national review. Okay. Um, that, that was his description of his own memoranda. And he's like, look, lawyers like kind of outline stuff all the time and you weren't there to.

0:48:53 Thomas: Yeah. Yeah. Do you do this, Andrew? Where you're like, oh, we could like kill a guy. I'm just that's what I said in the in the memo. But what I said is don't kill a guy.

0:49:14 Andrew: Yeah. Not even with Eli. Okay? Um, it, it is. And, and, and the, the, The Memo to Bar Counsel accurately cites cases and points out that, look, a responsible lawyer does not put advice into writing that they then undercut and contradict, you know, in in in terms of rendering verbal advice.

0:49:36 Thomas: That's the opposite of what you would do. You'd be like, here's what I'll put in my memo. Follow the law judiciously. Do nothing wrong. Biden is actually the president. And then what you'd say is let's insurrection, right?

0:49:38 Andrew: Right. Yeah. Yeah, yeah. Well, I don't know if I would call you a responsible lawyer at that point. You'd be better than John Eastman, though.

0:49:49 Thomas: Right? Yeah. You'd at least be a believable bad lawyer, like a believable evil lawyer. This is a not believable evil lawyer so far, right?

0:50:01 Andrew: Yeah? Yeah. Yeah. So so there you go. That all of that I learned from reading a bar complaint, stuff that really has not been synthesized in the public. These are sources that are otherwise available, including Greg Jacobs. But this also, I think, helped me understand, like, why was Bernie Carrick in that first round of subpoenas? I mean, other than, you know, he's a Giuliani henchman. But no, it's more than that. It was, he was there in the war room and they had a war room for an insurrection. Okay. All right. I'll, I'll bring myself

0:50:10 Thomas: Wow. Yeah. Who

0:50:41 Andrew: Back under control.

0:50:41 Thomas: Can get in trouble for this and how? Are you allowed to... Did anybody break by the having a war room for an insurrection? I don't know. Who's liable for what? Anything? Civil stuff? Something?

0:50:53 Andrew: I look, are sedition and treason statutes. And, you know, we don't have enough information to, you Know, for me to confidently say, you can make a case against Eastman for sedition. But it sure looks like right, I absolutely would refer that over to the DOJ, uh, to investigate, um, if

0:51:10 Thomas: Wow. At the very least, is he going to be disbarred? Do you see this?

0:51:18 Andrew: He is not disbarred. You know, again, these things move slowly, but, you know, we have seen, uh, and again, it has to do with This is the community of people that that are your peers, right? And and you hear the instinctive, it's not just the partisan aspect, you hear the the revulsion and the anger that I have, that that, you know, people can say, like, when I, when I introduce myself to somebody at a party and I say, like, yeah, I'm a lawyer, and they're like, oh, like Sydney Powell, like, I, like, that's that's offensive to my core, and that is offensive to the core of the of people who are in charge of rendering out this kind of discipline.

0:51:48 Thomas: Yeah.

0:51:58 Thomas: That's like when I say I'm a podcaster and they're like, oh, you mean like every single white dude? And I'm like, yeah, yeah, actually.

0:51:59 Andrew: So, I'm yeah, like Joe, Rogan, yeah.

0:52:04 Thomas: No, that does fit.

0:52:04 Andrew: Exactly, I do get that. When I, when I lead with the podcast, I do, you get, like, 50 of the time, like, oh, like Joe Rogan, and I'll be like, of like the opposite of that, interesting,

0:52:13 Thomas: I do everything I can to desperately not tell people that I do a podcast, actually. Because I don't want to talk about it. I don't want to hear their politics. You know what I mean? I just don't want to get into it.

0:52:26 Andrew: I lead mitzvah because leading with, uh, I'm a lawyer is even worse, so I know.

0:52:31 Thomas: Who would have thought? Who would have thought the day would come where you're like, should I tell them I'm a Harvard-educated lawyer, or should I Tell them I am a podcaster? And they're like Harvard-Educated lawyer? Or you mean like Alan Dershowitz, you mean like Ted Cruz, you mean, yeah, no, you're right, I see, I see your point, Andrew.

0:52:38 Andrew: Nope. Nope I talk into a microphone It's bad. It's bad. But there you go. A glimmer of optimism on disbarring Eastman and more information about the vital job that the 1-6 Commission is doing. Let's not forget that that they are putting together that information and it looks bad.

0:53:07 Clip: And thank you, Let's go!

0:53:08 Thomas: And now it's time for our patron thanks. However, again, we're doing stuff a little bit differently. We are first going to thank the final grouping of our new patrons from this week, or essentially last week at this point, because there were a lot. And we want to make sure we do each and every one of them, because that's our express warranty that we, I don't know, I still don't understand.

0:53:32 Thomas: Might be our express guarantee or it might be our implied warranty. I'm not sure, but why don't you start us off once again?

0:53:36 Andrew: It's a warranty though that's that's what counts All right. Octile number Seven. Here goes. Fallen_Panic. Adonijah Redlin. Hilary. Easy score. The Death Star was just a job. I love that. Not a last week tonight producer. Honest. Yeah, I don't believe you at all. That's so good. Geir-Arne Roos. Linzillard. Hungry, hungry hippo sized corgi. Oh my gosh, that would be so adorable. Drew Newshoes. Margaret Harris. Aaron Taylor. MeissShmeiss. Nathan Lawrence. Adam Buckmaster. Maren Fraley. Duncan Klassen. Timmy B. Mary, sorry, Mary Beth Buffum. Nicole Ebat. Brandon Bean. Fancy Tuesday. unkemptTomato. I wonder what a kempt tomato would look like. Bailey

0:53:37 Thomas: Yeah. And thank

0:54:27 Andrew: Coleman. Megan Hostetter. To learn why you appeal from and not to the decision of the chair, and that is 100% correct. It's a great way to get an Andrew Was Wrong, a Mini Andrew Is Wrong, into your uh Patreon name. You got the touch. You got a little power of attorney. That will make me happy for the entire weekend. Thank you so much. And Sean O'Neal

0:54:53 Thomas: You to Sam Walters, Shawn Lierow, Johnny B, shay joshi, Laura Balke, Ian Campbell, Captain Joe, Angelo Sarto, David Elsea, Izik Renehan, sam walsh, NrwgnSpaceWolf. Well, is it a space wolf or is it Norwegian? Okay. I guess they sent one.

0:55:12 Andrew: Maybe It's A Norwegian Wolf in space.

0:55:16 Thomas: Yeah, they sent ones. Okay. Shad Riley, Jen Jen Nippenberg. Melissa, I am a potted plant and a better lawyer than Donald Campbell. A Canadian 3L with a disproportionate amount of knowledge about U.S. law solely due to OA. Love you guys. Oh, that's awesome. Laura Rubel. I live by the FOMA, die by the FOMO. A night from a fairy tale. Kennedy J. Confusing in part and dissenting in part. Brian Davis. Swedish legal nerd. Claudia Trahan, and Dave. Oh, we finally got Dave. I'm so glad.

0:55:17 Andrew: Yeah, exactly. Oh God, great.

0:55:55 Thomas: I've been waiting.

0:55:57 Andrew: Great movie, by the way.

0:55:58 Thomas: 540. Oh, that is a good movie. I like that movie. Those are the days. All right. Thank you so much, new patrons. And now, enough of this octile business. We got to get back to our quartiles, right? And we got to thank our Hall of Famers.

0:55:58 Andrew: Oh My gosh, yes, yes we do.

0:56:13 Thomas: All And this time I'll go first. So thank you to Hall of Famer Christopher Brown. Philly Live Show 2022. I'll bring the cheesesteaks and Beyond Meat to the fully stocked basement bar Platinum Night. I mean, I'm sold. That sounds fantastic. A Philly cheesestake with Beyond Meat and a basement bar. I cannot. That is going to be incredible. We got to make that happen. Laughalcopter says, hello and thanks for all the fish. OA Live Show in Sydney, Australia, please. I won't be vaccinated till October at the earliest. Well, guess what? It's November now. Let's get an update. Thanks, government, by the way. Can we get an update on that, patron, if you're actually... I'm curious how well the timeline prediction, you know, lined up in Australia. I don't know how that went. The coin is rigging T3B with a Chinese thermostat controlled by an Italian satellite. When the moon hits your eye like a big pizza pie, that's assault.

0:56:31 Andrew: Ooh, a little

0:57:05 Thomas: Judicial review is the original inhabitant of the constitutional penumbra. How do do originalists justify that doctrine? Robert M. Liu, thick penumbras make you the legal reason. Thick ponumbras. That's a T-H-I-C-C, by the way. You make the illegal reasoning sound, yes, you do.

0:57:25 Andrew: Queen reference there. I like it.

0:57:27 Thomas: Finally, the thick ponumbra. I've been waiting for somebody to do a thick ponumbra patron. Bob Loblaw's Law Podcast. Ball Arena Live Show. Bolly Hernandez. These are just simple farmers, people of the land, the common clay of the new west, you know, morons. Exhausted by this timeline, feels headed for a grim, dark finale. Crime or no criming. Murderous crows. The impossible hamburger. Jason Kopas. Hey, Arizona, support Aaron Lieberman for governor. Jurisprudence fetishist gets off on a technicality. That will never not be funny to me. It's just such a great pun or whatever. Ian Hamilton, stop calling him Uncle Frank. Nate Drex has to call him Dad. And your turn, Andrew.

0:57:57 Andrew: Yeah. Yeah. Thank you to Chris Waltrip, to Jingle Bells, Seidl's Butt Spills, the FFRF won the day, OA increased its patronage, but the Kraken got away. That's beautiful. Thank you so much for that. Another Minneapolis, waiting for our live show in Minneapolis. Metacon seven, definitely not an MSNBC spy. My fully stocked basement bar is your fully stock basement bar. For a Philly live show, platinum event, you pick what's on tap, we have so much good. Oh, man. Civil politics radio.com Fridays at 7 p.m. Eastern on Valley Free Radio. Milk comes in quartiles, liquor and quintiles. Jennifer Cratch, my name is a joke from another podcast from like, like, three weeks ago. I kind of feel like that's for other podcasts.

0:58:17 Thomas: I hope

0:58:49 Andrew: So this is the, yeah, Yeah. John Bilderbeck, my stepdaughter is a fabulous lesbian, and all I got was this Patreon name. Well, not true, you also got to shout it out, so there you go. My friend's cousin mixed Coke with Cop Rocks, he died. Stephen Balticate Sandoval, a caravan of cocaine hippos. Philip Kizer, Andrea the Arbitrarian Capricious, Payne's Trumpet, Gere Sergith, lawyers for you too, all work pro bono. Give to modestneeds.org, then visit deepfakestop.com. Abscion and be very afraid. Trump lost by the slimmest of margins, not seven and a half million votes, stupid system that

0:58:50 Thomas: So. Yeah, that's true. That's

0:59:28 Andrew: Is that is all of that is true, yeah, 40, I think 40,000 across, yeah, but still stupid system.

0:59:29 Thomas: Absolutely true. What is it? $30,000? I think. Or $40,000. Yeah. That right. $40.000. Yes. Gosh. Oh, boy. Not looking forward to 2024.

0:59:39 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:59:45 Thomas: Now it's time for T3BE answer time. Oh, this is, this could be so embarrassing. This is gonna be, if I got this wrong, this is diabolical. Yeah.

0:59:53 Andrew: Yeah, that would be really, really well crafted by me, huh? No, this is just randomly what comes up. So in almost a, I mean, even the same theme, But in almost a word for word redo of the,

1:00:06 Thomas: The great snowmobile question of 2021. All

1:00:10 Andrew: Yeah, we have a man purchases swimming goggles from a dive shop in the winter. You don't go swimming until late spring or summer, so, you know, it's a couple of months later. He uses the goggles, gets in, discovers there's a defect in the lens, causes water to flood in. That's totally useless. So he goes back to the shop and says, "Hey, I want my money back." Um, what's his best argument? And, uh, we went through four potential answers. Uh, you eliminated A, the swimming goggles are defective, so he is rejecting them. Good elimination. He did not reject them, he accepted, uh, the store's tender of the goggles to him, albeit with incomplete information.

So, uh, not a, um, And you eliminated D, the harm suffered by the man was a foreseeable result of the dive shop's negligence. Uh, great, uh, elimination, uh, that is the worst answer on the, ball on the board. Um, and in fact, the, you know, the manual is like, um, this is trying to give a torts answer to a breach of contract question, which is, I thought, the best way to put it, uh, but, but yeah, and, and it's like, look out, be on the lookout for that, right? Like, if, if you've properly assessed that this is a, a breach of contracts question, and you have, um, you can exclude, don't get distracted, exclude, right,

1:00:56 Thomas: Right, yeah. Yeah. Yeah.

1:01:32 Andrew: Off the bat, things that are talking about foreseeability.

1:01:32 Thomas: I eliminated That one so hard, I don't even think I read it. Like, I was, my brain was like, this is wrong. That's how good of a lawyer I am. Oh,

1:01:42 Andrew: Nice job. So, is it B, your initial response, which you wound up going back to, uh, or is it C? Uh, and Thomas, I'm not going to leave you in the dark anymore, it's B, you got it. Right, your Your initial impulse was correct.

1:01:56 Thomas: Thank God. Oh, That was close, I almost switched fitness.

1:02:00 Andrew: No, this is not about the implied warranty of merchantability for a couple of reasons. The first is, unlike the snowmobile question, which made it closer, to breach a duty of warranty of the implied guarantee of merchant ability.

1:02:18 Thomas: It's warranty of fitness, is that just is that a synonym

1:02:20 Andrew: Oh, yes, yes. Sorry. Sorry, fitness for a particular purpose, right? And so in order to establish that, you have to show that the buyer relied on the seller's representations, right, so in other words, if you said, yeah, these goggles are great, they're going to, you know, 100% keep out all the water, you can dive as deep as you want, well, then, you would have that, you have no such evidence here. Um, that's not to suggest an

1:02:21 Thomas: Oh, okay, yeah, but then it wouldn't be implied. I'm, help me understand what an implied warranty of fitness exactly is, this will be great for swimming

1:02:47 Andrew: Express warranty is, uh, I, you sign a piece of paper. Yeah, you, no, no. You sign a peace of paper that says we warrant, and again, it could be done orally, but it is, we warrant that the following, you know, the X, Y, Z will all happen.

1:02:56 Thomas: Oh, really? Oh, does it count, what if it's on the box?

1:03:06 Andrew: That would be an interesting question, um, in terms of whether that would count as an express warranty, that would be sort of akin to the click wrap versus browse wrap type agreements, right? You would have to show that they read the box and that you assented to the box, right, in order for it to be a contract.

1:03:20 Thomas: Okay. And that's some, that's express warranty we're

1:03:30 Andrew: Right. But implied warranty of fitness, yeah, Yeah, you need to show, did the buyer rely on it? And since there was no testimony as to reliance, that makes that. And remember, this question was, what's the best argument to get your money back?

1:03:30 Thomas: Talking about, okay, yeah, yeah, no, I'm still trying to get out what, get like, what, what is an example of an implied warranty of fitness? Like, I'm sorry, I'm still not getting it. Like the goggles are on a mannequin of a swimmer or something.

1:03:52 Andrew: So, um, So if, uh, you know, if, if, if

1:03:59 Thomas: That was a serious question.

1:03:59 Andrew: The fact pattern no, no, no, it's a good one. If the fact pattern had asked a colloquy back and forth of, hey, uh, the, the buyer asked, uh, are these goggles suitable for diving? And the salesperson said yes, right? Right.

1:04:14 Thomas: Okay. So it's not really implied then. It's just not written down.

1:04:19 Andrew: Yes, it's not. It's it's implied as a warranty, because remember that, you know, and you have an awful lot of, 13th century Saxony law here, you know, that that began with caveat emptor, right? Like, let the buyer beware. And there's a lot of law about puffery, right. And And puffery is when you lie about your product in a legally defensible way, right? So if I say, yeah, Diet Coke is the best soda on the market, that's puffery. Diet Coke will make you grow big and strong and double your muscles and increase the length of your, right, like all of that is, I can say that when I'm marketing Diet Coke and and the courts will, yes, exactly.

1:04:19 Thomas: Okay. Yeah. Yeah.

1:05:01 Thomas: The length of your long jump, by the way, was what he's going to say. He's going say that.

1:05:04 Andrew: Um, and, and the courts will say, yeah, well, nobody takes that. That's just puffery. Nobody takes that seriously. So there is, I mean, I, I feel like you're thinking anything a salesperson says with respect to a product becomes converted into a warranty at law. And the answer is no, it does not. Right. Like the answer is salesman, right? We know a salesman will say Say whatever the hell they think they can to get you to buy it.

1:05:11 Thomas: Hmm.

1:05:29 Thomas: So it is written into the code that salesmen are kind of full of crap. And okay.

1:05:33 Andrew: Yes, exactly. But there are some things they can't cross the line, right? Like if I tell you, yeah, this snowmobile definitely will carry heavy weights and you buy it for the purposes of carrying heavy weight, then you might have a very good argument on fitness for a particular purpose, right.

1:05:34 Thomas: Okay. All right. Ah, okay. Yeah. But somehow that wasn't implied warranty and I don't remember why.

1:05:54 Andrew: We'd have to go back and look at the precise question again. But Thomas is like, no, no we would not.

1:05:55 Thomas: Yeah, that's all right. So the answer, I'm trying to be able to answer the third one of these that I apparently will get. I um, don't know. I think I've learned a little, I still a little confused on that, but, uh, fortunately I I'm not going to say I wasn't confused, but I did get this one right. All Right. Well, a future Andrew, why don't you hop in your time machine and tell us who this week's big winner is. I hope a bunch of people doubted me and went with C. That'll make me feel good. But who's our big winner?

1:06:11 Andrew: And Well, Thomas, this week's winner is Chad H. on Twitter, who writes, T3B, got to agree with Thomas on B. D is a nonsense answer. That's correct. A is rejecting the specific item. That can be remedied with replacing it. C seems similar. Only B seems to unwind the contracts, which would force a refund. A really interesting kind of non-legal, technical technical way of going about figuring out how to answer this question and got to exactly the right answer. So congratulations, Chad H. Everyone, let's give them a follow. That is at Agent C1983. Hopefully that is your favorite year for music. At A-G-E-N-T-C-1983, Chad H., congratulations on being this week's winner.

1:07:09 Thomas: All right. And that is our show. Thank you so much for listening. Thank Thank you so much to all our new patrons. We got through. We thanked every single one of those new patrons and our Hall of Famers. We did it, Andrew. We held up our end of the bargain. We won't be the subject of a future bar question where we violated our implied or express warranty. I don't know. But thanks for listening, everybody. We'll see you next time.

1:07:31 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.

1:08:05 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash 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.