OA558: One Year Since 1/6 - What Merrick Garland Said (and Didn't Say)

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 558. And I think more importantly, this is one year to the day for us as we're recording now since the January 6th tourism incident. According to Republicans, anyway.

0:01:31 Andrew: Yeah, yeah. The of gaslighting going on is amazing. Yeah, you and I were messaging like crazy, uh, this was a Wednesday, last year, was the day before we recorded, and we were like, uh, well, we

0:01:39 Thomas: Yeah. Well, I think we had a live something, didn't we? I think think we had either a Patreon Q&A or something.

0:01:51 Andrew: Yeah, No, we did, we, we had our end of the year Q&A, which again, uh, is, uh, yeah, a reminder, uh, you're probably listening to this on a Friday and, uh, we are gonna be live, uh, 3 p.m. Pacific, 6 p. m Eastern tonight. Night. Along for that if you can. Obviously, we're going to be talking about 1-6 here on the show. Attorney General Merrick Garland gave a wide-ranging speech yesterday. I want to pull out some of the highlights of that and kind of translate it from Merrick Garland legalese into Human sorts of other stuff.

0:01:57 Thomas: Yeah. Reminder.

0:02:25 Thomas: Yeah, I there's so much on one six. I don't even know where to begin. I just was remembering I've consumed a lot of the kind of retrospective stuff so far. And I think there's my wife sent me a link of like there's going to be one with Mandy Patinkin doing the voiceover. I was like, well, OK, I'm definitely watching that. I mean, I don't, I've actually, it's kind of, ah, it's hard to, I haven't, I haven't built up the guts to watch the one that was already on HBO. I don't know. It's, it's jarring. I don't really, it's unpleasant, you know, but like, if Manny Patinkin's going to do the voiceover, it was such a weird combination of things. I was like, I guess, ah, yes, I can't wait to watch it. I'm a big fan of his. But yeah,

0:02:35 Andrew: Oh, yeah. Oh, man, he's fantastic. Yeah, no, I want to relive all the trauma I felt that day. But still,

0:03:09 Thomas: Yeah.

0:03:09 Andrew: No.

0:03:11 Thomas: But anyway, it's just what really I'd kind of forgotten about, not permanently, but just, you know, hadn't been forefront in my mind, was just that image of seeing the Confederate flag displayed and just how, like, truly as just a punch in the gut that was that day. That was truly I'm hoping people aren't getting away with this. And with that said, maybe we transition over to our first topic. What do you think?

0:03:28 Andrew: Yeah. Yeah, let's do that.

0:03:35 Thomas: So Mayor Garland, press conference report stuff. Well, give us the details.

0:03:39 Andrew: Yeah. I think it is important to recognize and state up front what you and I have said on the show, we've said in public, we'll continue to say. And to give voice to lots of our listeners, which is, hey, we're a year out and it does not seem as though the orchestrators, funders, organizers, perpetrators of this insurrection are being held accountable. And in particular, all the way up to folks like Donald Trump, John Eastman, Josh Hawley, Ted Cruz. Where is the activity and is this going to be yet another example of, you evil people committing crimes and getting away with it?

0:04:27 Thomas: Yeah. There's a feeling of how many times are we going to Lucy this football? I mean, I, I try to, you know, you're, you're ever the, the optimist prime and I'm ever the negatron. I try to find a balance. I don't try to just be negative for the sake of being negative, but the world, the world has been pretty negative these last several years. So it's on one hand, it's like, you know, Mueller is coming and all that stuff. Yeah. A lot, lot didn't pan out. Now we've covered why, and I get it, but, but also I can't, there's, there's a tension there between, you know, Mueller's coming or, you know, the Georgia, the devil's going down and Trump's going down in Georgia, all that stuff. And then also nothing that we see is really happening with those people. And I wonder how much are you worried that there aren't actually going to be consequences? Or is it just truly the case that as we've looked at in, you know, in looking back on Watergate and stuff, it did take years in some cases for justice to happen.

0:04:40 Andrew: No.

0:05:22 Andrew: Yeah, I think I want to echo your comments, right? I've been optimist prime. I am a believer in the system, although that belief has been pushed sometimes to its breaking point over the past five years. I think the reality of the situation is this. Neither you nor I nor anybody knows what Merrick Garland ultimately is going to do, if right? See nothing that is different in kind from what we have seen to date. In other words, so far what we have seen are folks involved in the insurrection and those who were sort of standing milling about but didn't make it onto the Senate floor and didn't cause any damage and didn't hurt anybody are getting misdemeanor plea deals, right? And those who breached the Capitol, who threatened or used violence, right, who, you know, brandished a flag like it was a lance, right.

0:06:14 Andrew: Like those people are getting serious jail time, but no efforts to, no public efforts to go up the food chain, to Right, find, right, the people who funded this, who arranged for there to be water bottles, who coordinate, right? Like you don't get this number of people in a spot without logistics, at minimum, right. We need to go that step up the food chain, ideally. And I think it will be a failure if this doesn't happen. You want to go to the top of that pyramid, right. You want to find the planners, the organizers, right? How much did Trump know? How much did Trump plan? How much did Eastman know and did Eastmen plan? How much did Josh Hawley know? How much was he told to stand by, right? Like those are real questions, and I will tell you that if this ends, right, if, if, you know, we, if the Justice Department hangs a mission accomplished banner without getting to the bottom of of how this was orchestrated and coordinated and carried out.

0:06:22 Thomas: Yeah.

0:07:18 Andrew: Will be right there with you. We will call for Merrick Garland's resignation. We will criticize him on this show. I'm not interested, just like you're not interested in negatroning for the sake of being negative, I'm interested in defending a system that does not deliver on the things that it can do. And the primary difference, we were hobbled with a criminal attorney general when Trump was in office in Bill Barr. We're not hobbled by that, right? Joe Biden got his man, and if his man is not up to the task of prosecuting the gravest crime in my lifetime, right, and arguably in American history, then he should go.

Now, Now let's look to his remarks. That's not a bad segue, right? So Okay. This was a Merrick Garland speech, right there. Ongoing investigations. I expected, we're not going to talk to you about the substance of ongoing investigations. That is how prosecutors work. I think if you believe the way we do, there are several things that are really, really significant in this speech that stand out. So kind of working through it, and I'll give you a link to the transcript in the show notes. But beginning, you know, sort of after a moment of silence for Officer Sicknick, Liebengood, Smith, and Hashida, and Freitag, the folks who were

0:08:04 Thomas: Sure. Yeah,

0:08:40 Andrew: Or injured in connection with 1-6, we've got those involved must be held accountable, and there is no higher priority at the Department of Justice. We're going to put some numbers on that in a minute, because Garland gave us numbers, and I thought this was pretty useful. So in the aftermath of the attack, DOJ began its work on what has become one of the largest, most complex, and most resource-intensive investigations in our history. Only a small number of perpetrators were arrested in the tumult of 1-6 itself. Every day since, we have worked to identify, investigate, and apprehend defendants from across the country. And we've done so at record speed and scale in the midst of a pandemic during which some grand juries and courtrooms were not able to operate.

0:09:26 Thomas: Good point.

0:09:26 Andrew: Yep. Led by the U.S. Attorney's Office for the District of Columbia and the FBI's Washington Field Office, DOJ personnel across the department, in nearly all 56 field offices, in nearly all 94 U.S. attorneys' offices, and many in the main justice have worked countless hours. Approximately 70 prosecutors from D.C. and another 70 from USAO and DOJ divisions have participated in this investigation. Okay, 140 prosecutors is a lot of resources. I

0:09:26 Thomas: Yeah. Yeah. Not

0:10:00 Andrew: Should not have to tell you that. But also, I mean, we're going to get there, 725 defendants right now, which a significant chunk of those have pled guilty. I would say this, you do not need 140 top-line prosecutors to handle 725 cases, right? Of which, you know, a huge chunk are pleading out. And the trials that we've had so far, you know, have been two day, right? Like the of the QAnon shaman, right? This is a two day affair, right. These are not, you and I have been covering super complicated cases, right, like, you know, the Rittenhouse trial that went two weeks, right, cases are not in that category.

0:10:45 Andrew: So that does give us some indication that there is more in the works. The one thing that...

0:10:51 Thomas: A Lot of gloves Being tried on and too small, I guess. They could have done that. Oh, try. Have them try on the shaman outfit, see if it fits.

0:10:52 Andrew: Yeah. If the hat does... All right.

0:11:01 Thomas: Yeah. If The horns don't fit, you must acquit. God.

0:11:05 Andrew: So far, we've issued over 5,000 subpoenas and search warrants, searched approximately 2,000 devices, poured through 20,000 hours of video footage, searched an estimated 15 terabytes of data.

0:11:18 Thomas: Can you imagine all the terrible Right wing memes they had to go Through on all those phones? Oh.

0:11:19 Andrew: Oh, I, I would not again, you know, when, when you're a first year associate, right? Like document review is what you do. Uh, and the idea that, uh, I could be a, like reading the QAnon shaman's text messages. Uh. That would have been enough. I would have gotten out a big law, you know, 20 years earlier than I did.

0:11:25 Thomas: Oh.

0:11:44 Thomas: It's Like, I get it. Biden's old. Gosh, that's to every one of Your meetings. That's all you have.

0:11:47 Andrew: You We've received over 300,000 tips from ordinary citizens and the FBI's website continues to post photos of persons in connection with the events. As of today, we have arrested and charged more than 725 defendants for their roles in the January 6th attack. So those are the numbers. Then we dig into some some of the thought process here. In charging the perpetrators, we have followed well-worn prosecutorial practices. Those who assaulted officers or damaged the Capitol face greater charges. Those who conspired with others to obstruct the vote count, we have not seen any of those cases yet, by the way, also face greater charges, those who did not undertake such conduct have been charged with lesser offenses, particularly if they accepted their responsibility early and cooperated with the investigation.

In the first months of the investigation, approximately 145 defendants pled guilty to misdemeanors, mostly defendants who did not cause injury or damage. So we covered that, right? If you were there, if you were swept up with the crowd, if you did not breach the Senate floor and you pled guilty, you got that misdemeanor probation deal. Such pleas reflect the facts of those cases and the defendant's acceptance of responsibility, and they help conserve both judicial and prosecutorial resources so that our attention can properly focus on the the more serious perpetrators. So caused

0:12:21 Thomas: Hmm. Yeah.

0:13:03 Andrew: My ears to perk up. Yeah.

0:13:05 Thomas: And that seems fair. I mean, if you were in the crowd, you know, we do still have a first amendment. If you were in the cloud, you got swept up in the ground. You went, you didn't do anything, but like you went in a door. I get it. You know, you plead guilty. You, you know, I understand. I, maybe some people won't be fans of that, but that, that seems kind of reasonable to me.

0:13:22 Andrew: Yeah, and we talked about that. And again, the QAnon shaman, right, this is three-and-a-half years in jail, right. Like this is... That dividing line is a pretty sharp line. So in complex cases, this back to Garland again, initial charges are often less severe than later charge defenses. This is purposeful as investigators methodically collect and sift through more evidence. By now, though, we have charged over 325 defendants with felonies, many for assaulting officers and many for corruptly obstructing or attempting to obstruct an official proceeding. We've seen those. 20 defendants charged with felonies have already pled guilty. Approximately 40 have been charged with conspiracy conspiracy to obstruct a congressional proceeding and or obstruct law enforcement. In the months ahead, 17 defendants are scheduled to go to trial for their role in felony conspiracies.

0:13:28 Thomas: Yeah, felony conspiracies. That is interesting. So would that be more more than just, I went in there with the crowd and I punched a cop. That's not a conspiracy, right?

0:14:12 Andrew: Yeah. Yep. Nope. A conspiracy means carried out, planned in advance, and at least one overt act in furtherance of the conspiracy. Yeah, that's exactly right.

0:14:27 Thomas: Interesting. But do they, I guess I'm wondering like, how would the law in this case, how's Merrick Garland, how are they viewing a conspiracy? Is it like, okay, we're all gathered here. Someone says, Hey, let's go. You know, is like, is that a conspiracy or is it like in order to be a conspiracy it would have had to be, there's... there's a Zoom meeting. You know, there's emails.

0:14:29 Andrew: Right.

0:14:47 Andrew: Yeah. I mean, it's tempting. You said there's a Zoom meeting. There probably was, right? It's tempting to laugh about that. But no, it has to be the latter, right? To charge and prove a conspiracy, you must show, as one of the elements of the crime, agreement among the members, right? So in other words, it is not sufficient to just say, you and I are going to conspire to commit a crime, and you know which one I'm talking about, it would

0:14:57 Thomas: Really? Wow.

0:15:16 Thomas: I thought we weren't talking. Oh, yeah. Hypothetical one. Yes.

0:15:20 Andrew: Not be... If I roll on you, right, and I tell the prosecutors like, oh yeah, no, I told Thomas we were definitely going to do X, Y, Z crime, that's not enough to charge you with conspiracy. They have to have some evidence that you agreed, right, that you accepted. Now, they will have my testimony. Oh, yeah, he totally agreed with me, right? But think about, right—he said, he said kind of cases. Situations in which there is no more evidence than just Andrew says, oh, yeah, I pitched a crime to Thomas and Thomas totally agreed. And Thomas says, I never agreed. That's a tough, right? Like that, how, how do you go to a jury and prove that beyond a reasonable doubt, right. You can't.

0:15:36 Thomas: Right. Yeah. What I'm getting at is I think you know this because, you know, you're the expert. But to a non-lawyer, I'm not sure, like I'm trying to figure out, is this a sign that, you know, there is some backroom, whatever, conspiring that we're going to get revealed here? Because I'm not sure, just as a non lawyer, again, if we're all there at the at the scene of the crime, essentially, or even we're all at the first place where where Trump obviously incited the crowd and 100% should be guilty of that. But I don't know. Who knows if we'll ever get that that but if we're there and I say there's I don't know two or three of us and I say, yeah, let's go storm the Capital, and then you, you know, two other people are like yeah, and let's say that's on video or something, would that be something that they would charge with conspiracy, or does it have to be like pre-planned, is that is that, what's the threshold of like pre-planning that that is a conspiracy, there,

0:16:53 Andrew: That's an excellent question. That could potentially fit the facts, right, because there is agreement, right? The degree, in other words, I think what you're exposing is that that there is a perceptual difference between advanced planning and agreement, right? And I think that that's correct, but I think I'm really glad you expressed it that way because I think that really highlights the significance of what Garland says next. Here's what he says. The actions we have taken thus far will not be our last. The Justice Department remains committed to holding all January 6th perpetrators at any level accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy.

0:17:40 Andrew: Yep. So look, that's a very clear statement. This is one of the things that I was looking for of, yeah, no, we're, we are not just confined to people who are storming into the Capitol on one-six, right? Like

0:17:21 Thomas: Okay. Okay. And he's like people who made

0:17:53 Andrew: Yeah,

0:17:53 Thomas: A, you know, a Word document, or perhaps an Excel spreadsheet, or PowerPoint, or any Microsoft Office package pre-planning?

0:18:01 Andrew: Yep, That is exactly right. So you're looking for bits of optimist prime poking through. That was certainly one of them, right? Then there's an explanation of, know, look, I'm not going to comment on our ongoing investigation. It takes what it takes. These things are complex. I'll read a little bit. We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases. Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may have been involved, and that evidence can serve as the foundation for further investigative leads and techniques. Again, not a thing he had to say, right?

0:18:45 Thomas: Yeah.

0:18:45 Andrew: To say, you should be, and again, this is not, we're not reading between the lines here. This is the line, right, like, yeah, you've seen the easy cases because that that helps us build the hard cases, is a way of saying hard cases are coming, right? Will not just be us on the far left. You an attorney general says publicly hard cases are coming if they're not right, if you get three hard cases you know, we get one like, you know proud boy, oath keeper, 3% or whatever ever. That does not make good this promise. Back to Garland. To ensure that those criminally responsible are held accountable, we must collect the evidence. We follow the physical evidence. We follow the digital evidence. We follow the money. Again, that's an easy, it's kind of a throwaway line. That's something prosecutors always say.

0:19:31 Andrew: But remember here, every indication of following the money is it was funneled through those groups that I just mentioned, right?

0:19:39 Thomas: Well, yeah, you say follow the money is something prosecutors always say, but not every type of prosecution. You know, like if there's like a fight in a bar and a prosecutor is like, we're going to follow the Money, that does suggest like, okay, something weird is going on there. That's more than just, you know, a typical fight, typical rally gone wrong, a tourism incident.

0:19:45 Andrew: Right. Right. Yeah. We're the money. Right, right. The facts tell us where to go next. And then, we're picking through crumbs here, but I think they're significant crumbs. Then Garland brings up, over 40 years ago, in the wake of the Watergate scandal, the Justice Department concluded that the best way to ensure the department's independence, integrity, and fair application of our laws, and therefore, the best way to ensure the health of our democracy, is to have a set of norms to govern our work. Again, that independently say, I'm going to indict Donald Trump? It certainly does not. Um, but I think there are lots of, you know, if you wanted to draw the lesson of, Hey, the DOJ sets principles and follows them. There are lots of examples you could draw upon that are not Watergate, right?

0:20:25 Thomas: Hmm. Yeah, yeah.

0:20:42 Andrew: I think bringing up Watergate is intended to be a signal. Um, and then I, I kind of want, and so that, and that's it with respect to the investigations, right? So if you want more, you weren't going to get more. I was shocked we got that much.

0:20:50 Thomas: Hmm. You'll have to pledge to Merrick Garland's Patreon, I guess.

0:20:55 Andrew: Yeah. Could you, how great would that be? Like Merrick Merrick Garland is like if you're at the two dollar level, yeah, yeah, right, but

0:20:58 Thomas: That would be bad. That'd be the opposite of, yeah, the oppositeof what he's going for there with his norms. Once the country does collapse, I do think it's possible justice will be doled out on a Patreon tier level, like it would if you're a top level Hall of Famer to the Justice Department, you might get some justice, yeah.

0:21:14 Andrew: So So Conrad Michaels will survive the apocalypse. There we go.

0:21:22 Thomas: He'll be the judge dread of, yeah, yeah.

0:21:25 Andrew: All right. Also found it very, very significant how Merrick Garland ended this speech. And I think it gives us some hint as to the administration's agenda and next steps in 2022. So he ended with, the Voting Rights Act of 1965 sought to make that promise of democracy real. To do so, it gave the Justice Department valuable tools to protect the right to vote. In recent years, however, the protections of the Voting Rights Act have been drastically weakened. The Supreme Court's 2013 decision in Shelby County effectively eliminated the preclearance protections of Section 5, which had been the department's most effective tool for protecting voting rights over the past half century. Um, I need to tell you, attorneys general, I could, you imagine, let me not craft a hypothetical, I'll just say it this way, attorneys general rarely come out and go, boy, the Supreme Court completely got this wrong, and it's up to you, uh, to reinstate this legislatively, this is, is really, really important to our work.

0:21:56 Thomas: Yeah.

0:22:24 Thomas: It goes to show just how

0:22:33 Andrew: Well, very much So, yeah, again, I would say the political significance of this is you do not go out on a limb and say this without clearing it with your boss first, right? And this suggests to me, with

0:22:33 Thomas: Wrong those a-holes got it on the Supreme Court when it comes to this, sorry.

0:22:50 Thomas: Merrick Garland's clearing it with, really interesting I

0:22:52 Andrew: The President of the United States. As political matter, I would be willing to make a rather large waiver.

0:22:57 Thomas: Guess I've lost track on what the healthy relationship is there. I mean, wouldn't, wouldn't, if you had said before, that uh, Bar was clearing his statements with Trump, wouldn't we have all been like, that seems fishy.

0:23:10 Andrew: I would say, and I would draw the line on prosecutions, reporting on prosecitions versus public statements, right? So when you are announcing administration policy, right, Right. So remember that the attorney general serves in those multiple roles. Right. Like the attorney General is in charge of of law enforcement, in charge of prosecution. And those decisions need to not be made in consultation with the president. The attorney general also sets policy with respect to the administration and represents it in federal court, right? And so with respect to those functions, it, in my view, is perfectly appropriate, right.

And so, you know, so let's give it, let's give, let's give a Bill Barr example, when right, Bill Barr said that the resources of the Department of Justice for the Civil Rights Division are going to be used to find Christian victims of of their civil liberties and fight for them in court, which was a real thing that he really announced, despite the fact that all of that is imaginary. Our reaction to that was, well, this is what happens when you elect Donald Trump and he appoints a right-wing stooge as attorney general. They divert resources that should be used for protecting civil rights into protecting the right of Christians to proselytize in public schools. We did not, however, and I would not have said it would be inappropriate for Bill Barr to have talked to Donald Trump before announcing those policy guidelines. In fact, I suspect that they did, right? That kind

0:23:10 Thomas: Hmm hmm okay okay

0:24:59 Andrew: Of focus of resources would be something you would expect in consultation between the attorney general and the president. So it's not like it's improper for the attorney general to talk to the president in setting priorities. It would be improper to talk about pending criminal investigations, which I imagine were probably all of the conversations that Bill Barr and Donald Trump had. So I'm glad we got a chance to kind of do that.

0:25:22 Thomas: Fair enough sorry for the, uh for the diversion, just was, was curious

0:25:26 Andrew: No, no. I love the diversion. So I think that gives us, you know, we talked about the administration in light of the Joe Manchin backstabbing, wanting to pivot towards voting rights. And I think that this is full indication of how successful it's going to be. We will find out. But I think it is an indication that that's where they're going. And I thank all of us think that that is a really important battle to fight, including Merrick Garland. So then continued subsequent Supreme Court decisions have narrowed the reach of Section 2 as well. Since those decisions, there have been a dramatic increase in legislative enactments, and here he means at the state level, that make it harder for millions of eligible voters to vote and to elect representatives of their own choosing.

0:25:29 Thomas: Yeah

0:26:16 Andrew: They range from practices and procedures that make voting more difficult, to redistricting maps that disadvantage both minorities and citizens of opposing political parties, to abnormal post-election audits that put the integrity of the voting process at risk, to changes in voting administration meant to diminish the authority of locally elected or nonpartisan election administrators. As I noted in an address to the Civil Rights Division last June, many of these enactments have been justified by unfounded claim of material vote fraud in the 2020 election. Those claims, which have corroded people's faith in the legitimacy of our elections, have been repeatedly refuted by law enforcement intelligence agencies of both the last administration in this one, as well as by every court, federal and state, that has considered them. But as with violence and threats of violence, the Justice Department and even the Congress cannot alone defend the right to vote.

0:27:06 Andrew: The responsibility to preserve democracy and to maintain faith in the legitimacy of its essential processes lies with every elected official and every American. That's a significant statement. I get that there's a lot of rhetoric in there, and it's sort of easy to hand wave, but that a call to action. That is saying head, right, the Attorney General, the head of the Department of Justice, recognizes that the big lie is a lie, is loudly and often saying it in public, and believes that that big lie is a threat to our central democratic institutions. One would anticipate that that would then lead to activity based on those public statements. Again, I go back to what we said at the outset. None of us know what Merrick Garland is going to do.

0:27:05 Thomas: Well

0:27:53 Andrew: And we're prepared to stand by if that winds up being a disappointing level of future activity. I think some big promises were made in the speech. And that gives me some hope. And it will make me twice as angry if they don't come to fruition. So there you go. Those are mining the nuggets out of Merrick Garland's public address about 1-6.

0:28:18 Thomas: As usual, you've made me slightly more optimistic, but, uh, yeah, as you say, breadcrumbs, but significant, some sourdough breadcrumb, some delicious yummy breadcrubs, not just your typical, Wonder Bread. All Opening Arguments is brought to you by Blinkist. Hey, in 2022, which I'm told is the current year, maybe one of your goals is to read more or to be better, more knowledgeable, smarter, more informed. If, and so, listening to this podcast is a great start. But I got another one for you. Blinkest. I read a lot, actually. I listen to a lot of books. But there's always more books is the thing. I this is mathematically provable. The number of books that you have time for is always going to be less than the number of books that are worth reading. That's just, that's just a fact. There are a lot of books in the world. And so one great way to squeeze in a few more, and maybe many more, is Blinkist. Blinkest is a great way to take a book that you want to get the key insights from and deliver those insights in a short dose.

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0:30:31 Clip: Down the law, down the law.

0:30:35 Thomas: I hear Chief Justice Roberts has a very crucial report on the ethics of the Supreme Court that I'm just dying to, I don't know if the sarcasm is coming through, but he's really shined a black light on that Supreme Court.

0:30:47 Andrew: It's coming through a little bit. I would say insofar as you're feeling good, good about Merrick Garland's remarks. These are ominous remarks from John Roberts. The only good thing, so spoiler, the only good thing about Roberts's remarks is that he is very obviously acutely aware of the perceptual problem that exists with respect to the Supreme Court, which means that the tactics that have been used over the past couple of years, the shame, John Roberts, uh, will continue to be effective. Sadly, that only gets us to four votes. Um, so you, that's all real bad. Um, and Roberts, you, you've used the example of the meme of the, you know, the little dog in the house that's on fire with the, this is fine, fine.

0:31:38 Thomas: Yeah.

0:31:39 Andrew: That's John Roberts' view of the Supreme Court, right? Of him in his little chief justice chair.

0:31:42 Thomas: Well, and his is like, this is fine. And also, I kind of like fire.

0:31:46 Andrew: Yeah, yeah. I've decided to make friends with the fire. That is right.

0:31:50 Thomas: Yeah. He's part of the fire, but

0:31:52 Andrew: Right, yeah, we are pushing the meme to its breaking point, so I am not going to go there. So every year, the chief justice, as the head of the judiciary branch, issues a year-end report on what is important to the judiciary, what's in that report is often as significant or more significant than what the report actually says. So this year's report touched on three subjects. Also is woven together with the tale of the history of the court and former chief justice and former president, William Howard Taft.

0:31:55 Thomas: Yeah. Hmm.

0:32:31 Andrew: I'll quote a little bit from that at the end, it indicates, right, it is kind of a tiptoeing of the, hey, we get it, people lack confidence in the Supreme Court and in the federal judiciary as a whole. Here's why I think they do, and here's what we're doing about it. Mind you, none of this is the reason why people have lost confidence in the Supreme Court and the federal judiciary. And I suspect that this is true even for folks who are conservative leaning, right? Like you were my age and a non-Trump Republican, you probably look at the Supreme Court and kind of wistfully look back at the past and say, I do miss the days in which it was not a foregone conclusion what the answer would be based on the political ideology of the judges hearing the case, right?

0:33:23 Andrew: Because that didn't used to be the case. And I'd like for it not to be that case going forward, even if you are, you comfortably in the majority as conservatives are. So not even an elephant in the room, right? It's like everybody's elephants, right, like it's the court that has been taken out to the savannah and like you're looking around and it's nothing but, you're the only non-elephant there. Anyway, suspect that that metaphor is about to go up in smoke too.

0:33:41 Thomas: Yeah. My absurd metaphor ability is rubbing off on you. Oh,

0:33:51 Andrew: Him. So the first issue that Roberts wanted to address is something near and dear to our buddy Gabe over at Fix the Court, and that is judicial ethics. So a little bit of background. Last year, Wall Street Journal published an investigation, Gabe alluded to this when he came on the show, that revealed that over a seven-year period, 131 different federal judges participated in 685 cases, so multiple violations on average, five on average for each judge, involving companies in which either the judge or their family members owned stock.

0:34:30 Thomas: Yeah.

0:34:30 Andrew: Now, that is plainly prohibited by federal law and by the Judicial Conflict of Interest Rules. And in response to that report, the House of Representatives, again, too late for Gabe to comment on it, passed by a vote of 422 to 4 the Courthouse Ethics and Transparency Act.

0:34:52 Thomas: Who are those four votes? No, I'm against ethics and transparency.

0:34:54 Andrew: Yeah, right. That bill would require federal judges, but not Supreme Court justices, to disclose stock sale and purchases of more than $1,000, right, so above the de minimis level, within 45 days of the transaction. And those financial disclosure reports would have to be posted online, searchable, easily available. So, that's kind of the background. Sure are participating in cases in which they have a financial stake in the outcome, despite the fact that that violates federal law and a whole bunch of ethics. Roberts's response will not surprise you. He says, bad whenever judges have ethical lapses, but we want to, quote, put these ethical lapses in context. The judiciary takes this matter seriously. We expect judges to be held to the highest standards, but the 685 instances identified in the Wall Street Journal's reporting amount to a very small fraction, less than three hundredths of one percent, of the two and a half million civil cases filed in the district cases in the nine years included in the study. And there's no indication that any of the judges benefited personally from any of the violations.

0:35:38 Thomas: Yeah.

0:36:13 Andrew: That's an unbelievably disingenuous answer? I mean, to take the entirety of civil litigation and go, wow, yeah, there's only 685 cases, to inflate the denominator, all of those cases will not have presented an opportunity for financial wrongdoing. To have the opportunity, you're talking about publicly traded companies, and you're talking about publically traded companies in which judges have an interest. So a relevant denominator, I don't know what it is, but John Roberts doesn't give it to us, would be what percentage of cases are those 685 of publicly traded companies that have come before the court? Or a much more relevant number would be, what's the ratio of those 685 cases to the number of recusals, right? That's the direct decision you want, right, which is, hey, A, Justice Smith, you own stock in Coca-Cola. Coca-cola is a litigant in your court.

0:36:34 Thomas: Yeah,

0:37:22 Andrew: Did you recuse yourself, yes or no? Judges file letters when they recuse themselves. So this is a knowable number. I tried to find it and I couldn't find it. I did a fair amount of research looking for it. But I would be shocked if the number of recusals, I suspect it is a four-figure number, right? I suspect that it is in the thousands. It may be in the hundreds. It is unlikely that it in the 10,000s. And if that's the case, right, if it's in the 1000s, we're talking about a significant percentage of conflicts of interest. Gabe's probably listening, and he might have that information. So if you do, write in and let us know.

0:38:07 Andrew: So Roberts says, look, we know that we need to do better. We need to have more rigorous ethics training, better conflicts checks, and we need to, quote, pay greater attention to promoting a culture of compliance, end of quote. But, this is a matter for the judiciary to address internally. We're getting better. Better, and he notes that the Administrative Office of the U.S. Courts is already working with the judicial conference committees with jurisdiction to address these problems. So, you know, don't use this as an opportunity to try and pass that legislation and regulate us. We don't need to do that. We're already, we're on it.

0:38:48 Thomas: Policing ourselves always works. It's always a good idea.

0:38:52 Andrew: Well, as long as we're talking about policing ourselves, how about the second category, which is sexual harassment within the judicial branch? Not a surprise that this was the topic of Roberts' 2018 end-of-the-year report, also not a surprise that it did not mention the outstanding ethics complaints against Brett Kavanaugh that all Went by the wayside once he was elevated to the Supreme Court. That's something that has been on folks' minds. Brett Kavanaugh is kind of a lightning rod, but in 2021, support for the Judicial Accountability Act of 2021, which had as one of its provisions that employees of the judicial branch have the same protection against sexual discrimination as other government employees and private sector employees. On August 25th of last year, Judge Moscoff, who is the director of that, remember I mentioned the Administrative Office of the U.S. Courts? She's the director of that, and she sent a letter to the House Judiciary Committee indicating that the Judicial Conference opposes that bill.

0:39:13 Thomas: Yeah? Yeah.

0:40:00 Andrew: So, you sure that judicial branch appointees have the same protections against sexual discrimination that other executive branch appointees have, judiciary has said, no, we'd rather not have that. We'd rather that be taken care of internally. Unsurprisingly, the Roberts 2021 report takes the same line. Notes that a panel of judges and judicial administrators concluded in 2018 that although there had been several serious high-profile incidents, inappropriate workplace conduct is not pervasive within the judiciary. That's a quote from the finding. The judicial conference had adopted recommendations to, quote, ensure that every court employee enjoys a workplace free from incivility and disrespect.

0:40:48 Andrew: So although I appreciate that members of Congress have expressed ongoing concerns on this important matter, want to assure you that the judicial conference and its committees remain fully engaged, end of quote. So that's that. That's how John Roberts would like the judicial branch to handle concerns about sexual harassment? Not great.

0:41:09 Thomas: Okay. On one hand with the conflict of interest stuff, it feels to me like there's just no consequences for that. Feel free to optimist prime me if that is wrong. But it feels yeah, it feels like you just do it. And then and that's again, that's not to get all social justicey all the time. But our view of crime in the society, you know, if if a Black kid steals the thing of Skittles or something, whatever that's viewed as a crime, they need punishment. If a wealthy white judge makes decisions that he should have recused himself on that might make him gazillions of dollars, well, we might have a committee about it. And it's frustrating. Now, I guess on the sexual harassment front, does apply there too? Or I would hope that judges could be disciplined and or criminally prosecuted for sexual harassment if it reached that level. Is that true? I mean, or what level of consequences can we expect for those kinds of infractions on the judiciary?

0:41:20 Andrew: Don't think you're wrong. So in a couple of different ways. The first is, as a general principle, the judiciary is responsible for policing itself. So are judges immune from criminal indictment? They are not, okay? So they don't have criminal immunity for that kind of conduct. But criminal behavior is an incredibly high bar, right? Lots of things constitute workplace sexual harassment that would not rise to the level of crimes, right. And there were, when we say high profile incidents, we mean, for example, Judge Alex Kaczynski in the the Seventh Circuit, right? Once somebody who was thought of as a potential Supreme Court nominee, somebody who Was incredibly well connected within the legal community, incredibly well respected on both sides of the aisle. Kaczynski would have been one of those names of, you know, non-originalist conservative judges who drew respect for their jurisprudence from liberal judges and commentators.

0:42:33 Thomas: Yeah.

0:43:20 Andrew: I think, because I know I can't do it justice in a short answer to the question, what I'm going to recommend and put in the show notes, votes. Professor Leah Littman, we've talked about her on the show. She's fantastic. She co-wrote probably the single most important law review article on this topic. It is called On Sexual Harassment in the Judiciary. I will, it was a Northwestern University law review.

0:43:46 Thomas: We got to get Leah Lippman on the show. That would be incredible. We're big fans here.

0:43:46 Andrew: Oh, yeah. It would be great. So, yeah, so she's she's written, you know, the the proverbial book on how this this operates. And as whitewashing as John Roberts' comments are, law review article paints the exact opposite picture. It is that it is an interconnected environment that the power disparity that judges enjoy over their clerks just makes it, petri you dish for exploding sexual harassment and inappropriate conduct in the workforce. Force. So I highly, highly recommend that. We've reached out to her before. We're going to reach out to him again. But I would defer to that. I would say, look, I am not an expert and she 100% is. But, but, but I also don't want to just say, go read the law review. The picture she paints is bleak, And right? It is, and the analogy, I don't know if she uses this in the law review article, uh, the one that comes to mind is sort of the like, you maybe still in effect, but certainly, like, you know, pre-body camera, like, thin blue line kind of, uh, situation, right?

0:44:13 Thomas: Yeah. Okay. Yeah, equivalent.

0:44:57 Thomas: Yeah

0:44:58 Andrew: Yeah. Exactly.

0:44:58 Thomas: Okay, gotcha.

0:44:58 Andrew: Right, and that, that just the way in which, and, you know, and I've chimed in on this, right, like, like, the expecting subordinates to a federal judge to turn on that judge, a high level to expect to begin with, it's you not a thing that happens. It's a relationship that is, power disparity doesn't begin to cover it. Everybody You I know who clerked, you has the like, I would take a bullet for my judge, you it

0:45:13 Thomas: Yeah that's not a healthy like employment relationship I don't think.

0:45:31 Andrew: Is a no.

0:45:31 Thomas: Unless you work for the Secret Service, I'll give you that one. Other than that, you shouldn't really need to take a bullet or express the desire to to take a bullet for your boss.

0:45:34 Andrew: Right, right. Exactly. Zero argument there. So look, this remains a significant and serious problem. We have passed legislation. Um, it has passed the house. Uh, and I think that is the beginning, certainly by far not the end. And then the third area and Thomas, I know you've been waiting for this one. This is the third most important thing, uh to the federal judiciary for the year year 2021. And that is the procedures used to assign patent cases in federal trial courts.

0:46:00 Thomas: Ah.

0:46:11 Thomas: Yeah, for sure, that was on the tip of my tongue. Yep.

0:46:14 Andrew: Yeah. Roberts describing this as a, quote, "arcane but important matter of judicial administration." And it is. And part of the reason for it is that I don't think anybody has the answer to this. So here's what happened. On November 2nd, Leahy, Democratic senator from Vermont, pretty liberal dude, Tom Tillis, pretty conservative Republican from North Carolina, wrote a joint letter uh to John Roberts, and in that letter they pointed out that one judd, one guy in the Western District of Texas, gets assigned 25 percent of all of the patent litigation cases currently pending in the United States.

0:46:57 Andrew: In the entire United States, yeah. So no One knows. So Leahy and Tillis asked John Roberts, quote, "to direct the judicial conference to conduct a study of actual and potential abuses that the present system of assigning cases has enabled and to complete this report by no later than May 1st, 2022." Roberts' response, months. "Two important and sometimes competing values are at issue here, the random assignment of cases and the idea of district judges as generalists, and Congress's intentional creation of districts and divisions so that litigants are served by federal judges tied to their communities. The issue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve and to work in in partnership with Congress, in the event that a change in the law is necessary."

0:46:54 Thomas: Wow. In the whole United States? Oh. Wow. How is that possible? Yeah.

0:47:50 Andrew: That's it. So why is this one guy getting 25% of patent cases? I don't know. You don't know. But the best people to figure it out is probably us judges. And we'll tell you if we think there's a problem.

0:47:56 Thomas: Yeah. Well, it just seems like... like, you know, I don't know how much, to say if this would happen, but anything like that where you have a good 25% chance of knowing who you're getting for your care, it just seems like it would be potential for abuse, potential for corruption, you know? Yeah.

0:48:17 Andrew: Absolutely. Absolutely. And you should not know, right, that you have a one in four chance.

0:48:20 Thomas: Yeah. In the whole United States.

0:48:25 Andrew: Yeah, it's mind boggling to me to be subjected to the whims of one particular judge. So thanks to Leahy and Tillis noting for that issue. And no thanks to John Roberts for saying you'll probably fix it. Roberts ends, I was going to read his conclusion, which again again, goes back and draws inspiration from William Howard Taft, basically says, you know, the judiciary, in order to maintain its independence, needs to manage its own internal affairs.

0:48:25 Thomas: Wow. Yeah. Oh,

0:48:59 Andrew: That's the primary lesson. And again, it Is so mind-boggling to me, ought to be, I think, to to anybody who's completed, you know, AP US History, right? Like the the idea of checks and balances, right? Like they will say it in the same sentence, they'll be like, well, you know, in order for us to be an independent branch, you know, we have to have a unitary executive theory. Like, no, that, right, that's the opposite of checks and balances. Like, Checks and balances are, you don't get to do whatever you want to minimize your powers, you have to go somewhere else for permission or oversight or looking at something, um, and you, I don't want to say it's equally true if the judiciary is the executive, because we have seen the dangers of unitary executive theory in a way that, um, you know, sort of the the unmodified judiciary has, you know, yet to to approach, um, but it applies with with equal force, right?

Like, it is, the way in which you maintain co-equal branches is by limiting their powers, not expanding their powers. This is a plea to expand judicial power, which, you, we have been flagging here on the show. We have called this playbook, you know, since 2017, that what Republicans are trying to do is what the original Federalists did back at the turn of the 19th century, in the early 1800s.

0:48:59 Thomas: Yeah, sure. You and the Catholic Church. Yeah, definitely.

0:49:25 Thomas: Yeah.

0:50:23 Andrew: And that is, despite being reduced to political irrelevance, controlling one of the branches of government through having judicial appointments for life, and then expanding the power of that judiciary to do whatever it wants. I hadn't quite meant to deliver a counter state of the union on the state of judiciary, but my fellow Americans, the stateofthejudiciary is terrifying.

0:50:47 Thomas: Crap.

0:50:47 Andrew: Terrifying, uh, And We'll continue To get worse, yeah, So, Uh, So there you go.

0:50:47 Thomas: Yeah, so many reasons on almost every level. Yeah, not great. One last thing here about oral arguments in the COVID rulings. You want to update us?

0:50:58 Andrew: Um, so in a way, uh, this is already a victory for us. We obviously have no idea what's going to happen, because, uh, those are taking place Friday, as you're listening to the show, uh, but we're recording this on a Thursday, as you well all know. So we don't know what's taking place in those arguments. This is the consolidated appeals from the Sixth Circuit. Remember that judicial lottery we talked about in episode 554, on the Biden administration's rulings requiring vaccination in the workplace? The way in which this is already a victory is the Supreme Court scheduled expedited oral arguments on the the merits of these cases, rather than just employing the shadow docket, right?

Rather than treating it separately and separately adjudicating the request to stay, said, "Look, let's have this out in the open and rule on the merits." And the only reason that happened is because, and again, not us, I mean, we know the Supreme Court listens to us, but it has been because all of us collectively on the left have been pointing out the open and notorious abuses of the shadow docket that the Supreme Court has engaged in. So when you're feeling down and when you're like the way you felt at the end of this last segment, remember that publicly talking about what they're doing does have an effect. And this is an illustration of that effect. This was taken off the shadow docket, off of adjudication by stay.

0:51:39 Thomas: Hmm. Okay.

0:52:32 Andrew: They reached a sensible agreement, right? Like the court said that they were not going to administratively stay the Six Circuits ruling, right? Which put the vaccine mandate back. And OSHA agreed that it would not issue citations to any business for failure to comply with that rule until Monday, January 10th, right, which gave the court enough time to schedule a January 7th oral argument. So really, this is the system working. And we've kind of given a, like, you know, is the System Working bookends compliment sandwich? But there you go.

0:53:02 Thomas: Okay. System working. All right. Okay. Yeah.

0:53:11 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:53:11 Thomas: Yeah. And now it's time for T3B. Thomas takes the bar exam each and every week. I attempt to answer a bar exam question using luck.

0:53:28 Thomas: No, not true. Using all the skills acquired in the last five years or whatever. Uh, let's have it.

0:53:34 Andrew: So Thomas, a Man got divorced from his wife. Wife. The judgment of divorce granted their marital home to the man's ex-wife. The man rented an apartment nearby. The man was upset that his ex-wife had kept their dog. The man believed that the dog belonged to him, as he had paid for the dog and it was his before the man and his ex-wife were married. The ex-wife refused to give the dog to the... one night the man was looking at pictures of his dog. I swear this isn't the question, and got very upset that that his ex-wife would not return the dog to him. The man drove to his ex wife's house and knocked on the door. Nobody answered the door, the man could hear the dog barking. He decided to take the dog back to his house. To his surprise, the door was unlocked. He opened the door and the dog greeted him. At that moment, he felt bad for his ex-wife and decided to leave without taking the dog. The men was later charged with burglary.

0:53:35 Thomas: Oh. Geez. Huh. Huh.

0:54:31 Andrew: What's the best argument that the man did not commit burglary? A, he did not have the requisite intent to commit burlary. B, he was not armed with a dangerous weapon. C, he didn't commit a crime. D, he abandoned the crime.

0:54:48 Thomas: That's... wow, what a weird question, this is very different. The first off, I, you know, I can't remember us getting a divorce law question, but I guess this ends up not really being divorce law, but, uh, yeah, weird one. Okay, does all this, and going reading back through the info, I'm not sure how much of this matters, really. So the dog, it doesn't tell us what, you know, if the dog was specifically decided on in the divorce. It's just she ends up with it. Because it does say judgment of divorce granted their marital home to the man. So that's important in establishing the ex-wife owns the home. So it's her home that he's potentially burgling. It says he believed the the dog belonged to him. It's interesting. So there's some mens rea, dogs rea.

0:55:36 Thomas: Okay, so burglary is the crime here. We've talked about larceny. Larceny is when you just walk away with stuff, I think. And burglary, I think is when you break in, or is there also an element of violence. I don't know. I think it's when you break in. I'm already just glancing at the answers and having heard them. I think the breaking in would be more important than being armed. I don't know, that's what I think, but we'll see. This is weird though. He hears the dog barking. Nobody answers the door. He That's saying he decided to take the dog back to his house. The facts are kind of weird. I'm just going to read this. He goes to ex-wife's house, knocked on the door. Nobody answered.

0:56:21 Thomas: The man could hear the dog barking. He decided to take the dogs back to the house. So he's decided, I guess, to commit some sort of crime. Maybe To his surprise, the door was unlocked. He opened the door. Dog greeted him. At that moment, he felt bad for his ex-wife and decided to leave without taking the dog. He was charged with burglary. Already, I didn't know you could be charged with burglary when you don't take anything.

I guess, is that just breaking and entering or not breaking? What's the crime here, actually? I don't even get how this would be any kind of crime, possibly like a trespassing type thing, but he didn't take him. He didn't the dog. I don't get it. Okay. What is the best argument that the man did not commit burglary? He did not have the requisite intent. So, that would be like he believed the dog belonged to him. I mean, that's possible. If he believed, like if I... let's see, he borrows my Battletoads NES game, and I'm like, dude, that's mine. Give it back, and he's like, no, I'm not giving it back.

I'm pretty sure I can't just break into his house and take it, so I still think even if I believe that you own something of mine, I feel like that still would would be burglary, well, would it, it'd still be something, it would definitely be the breaking in part, is that burglary, maybe, if I believe it's my Battletoads NES cartridge, better not blow on that thing, I'll be mad at you, gonna only use proper cleaning solutions, B, he was not armed with a dangerous weapon, okay I don't think that matters, I'm gonna eliminate B, I think burglary is more about the breaking in part I think, so I'm going to go with that, Because I think, okay, hypothetically, if he had been armed with a dangerous weapon and broken down the door and taken the dog, never using the weapon, is that somehow more burglary than if he is armed with crowbar and just pries open a door and takes the...

I think they're both burglaries. I don't like that. See, he did not break into the dwelling. That's definitely a plausible element there. If you just open a door. That's more like larceny. So could your defense against burglary be, no, no, I'm not a burglar.

0:57:49 Andrew: No?

0:58:36 Thomas: I'm a larcener. I don't... I'm no burglar, I'm larcener. Or there, D, he abandoned the crime. Layers here. Here. Lots of layers here. I don't know that burglary is an intent crime, is it? I mean, if I break into a house, like burglary, it's hard to imagine committing burglary, but for the intent, you know, like if you do all this stuff, because burglars, maybe larceny would be a different story. You accidentally, you go into a grocery store, you put something in your bag and you forget and you essentially stole, but I think that's larceny because there's no force divorce. I could see that being like an intent thing, like, oh, literally just whoopsie daisy, I plead whoopsies daisies, no intent there. But even then, I guess you still committed larceny. I don't think you need intent. I, that doesn't seem right to me. I'm going to eliminate A and B, and I think I'm either he did not break into the dwelling, which is a strong contender, or he abandoned the the crime.

0:59:34 Thomas: So I guess the key difference there is, had he not changed his mind, would we still say it's burglary? So had he opened the door and taken the dog back? So he didn't break in, keep that fact the same, but he took the dog Back to his house. Would we say that's burglary? If the door's open, isn't that just larceny? Isn't that the kind of the difference there? If you don't break, well, let's see, you do enter in without permission, essentially. Maybe that's the key. Like larceny is more like, okay, you go into a jewelry store and you just kind of pocket something. But the difference is you were allowed in the building versus a house or something. You can't go into somebody's house for no reason. Is that the difference? But he also didn't even, it doesn't even seem like he went in the house.

1:00:22 Thomas: It just seems like he opened the door and the dog's like, hey, I think I'm going to go with C. This is a tough one. But I think that it's more about not having broken in to anything, I think. Is real tough. I'm between C and D. I think there's also something to be said about if you abandon a crime, you still kind of committed it. So maybe that's another reason to go against D. going with C final answer

1:00:49 Andrew: All right. And if you want to play along with Thomas, you know how to do that. Just share out this episode on social media. Include the hashtag T3BE. Include a guess, your reasons. Therefore, we will find a winner, shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:01:02 Clip: And thank you, Let's go!

1:01:04 Thomas: Now it's time to thank our new patrons at patreon.com/law. Hope you're enjoying the goodies, the no ads, the bonus stuff, the Lamb coming at you in about another week or so, week and a half, the Q&A that I hope you are attending, maybe right after this. Those new patrons, I'll start us off, are Bettina Knuelle, Daniel Chasin, James Gonsiewski, Andrew M., amanda sevareid, Rhoseph Sovia, Jim Schnabel, and Greg L. Your turn.

1:01:35 Andrew: Thank you to Jordan Wages, James Miller, BlackEyedGhost, Parge Lenis, Taylor Sparkman, Simon Crowley, Taylor Williams, and The Rule Against Poopiturdities. Yes, yes, we will read your 12 year old humor and giggle at it, yep.

1:01:56 Thomas: Yep. And thoroughly enjoy it.

1:01:58 Andrew: Over at patreon.com/law. Oh.

1:02:01 Thomas: Tell you, I would enjoy that joke for free. Yeah, that's it. It.

1:02:04 Andrew: Yeah. Yeah, but I mean, Let's not, let's not give it away for nothing. I mean, you know, poop eternities.

1:02:09 Thomas: And that's our show. Another last minute reminder. If you're listening to this on Friday, January 7th, we've got our Q&A. It's today at 3 p.m. Pacific, 6 p.m. Eastern. Come hang out. There's still time. So if this isn't in the, yeah, if this is in time, make sure you make sure you join us on YouTube. But thanks so much for listening. We'll see you next time.

1:02:10 Andrew: Huh, yeah.

1:02:26 Andrew: Get out there

1:02:33 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.

1:03:07 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.