OA560: Supreme Court Just Plain Making Sh*t Up In Vaccine Ruling

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 560. I'm Thomas. That's Andrew. How you doing?

0:01:23 Andrew: I'm sort of fantastic, Thomas. I'm, yeah. We

0:01:27 Thomas: Swimming in a bunch of papers that were dropped from a hatch above you. That was the new Supreme Court decision, I'm guessing. I'm glad we rigged up that contraption.

0:01:37 Andrew: Have a lot of of breaking stuff Yeah, have you seen Indiana Jones and the Temple of Doom? It's kind of like that, um. Yeah, lots of breaking staff, you know, right as we record, always fun. So we'll get some, uh, some lightning reaction here, uh, with all the disclaimers that apply to, uh, lightning takes. How are you doing, Thomas? Well

0:01:46 Thomas: Oh, man, doing Okay, um, there's a lot of news, I, the first thing I see when I wake up this morning is Kirsten Cinema ruining our lives, so, like, not great, you know. I guess not too fun, she's never going to win another election. Like, does she not care? Maybe she, she doesn't care. Does she want to just go do private sector stuff, be a consultant? Maybe that's her end game. Otherwise she's not winning another election. I, I, well, I'm personally going to guarantee it. I'm going to go down there. I've been a rally. I, I'm gonna, you know, get, get out the vote. I can't believe it on voting rights. She's not

0:02:10 Andrew: Will we will deal with Senator, uh, Cinema's remarks and the overarching strategy in our, uh, our main deep dive no yeah

0:02:42 Thomas: Going to. Okay.

0:02:43 Andrew: No, there was some kind of broad overarching strategy in rapidly blue-ifying Arizona, uh, I don't know what it is and I don't think anyone else does either. Right, like Joe Mansion, it's super easy to figure it out, right? Like, he's old, he's a millionaire, he owns a coal company, he's, you know, a senator from a state that's pro-Trump by 900 points, like, you can figure all that all of that out cinema, uh, makes no sense, so, uh, but we'll get there. Why don't we, uh, why don' take a crack at some, uh, some breaking news

0:03:07 Thomas: Yeah, no, Some like, yeah. Breaking news episode. Apparently Oath Keepers leader Stuart Rhodes arrested in connection with one six. What can you tell us about this?

0:03:15 Andrew: Yeah literally, this indictment dropped, uh, five minutes before we were scheduled to record. Um, here's the important thing that you need to know. Number one, um, this makes good on, uh, our breakdown in episode 558 of the Merrick Garland, uh, speech that he gave on, on January 5th regarding the January 6th insurrections, uh, uh, in which he said, uh, as one of the lines that I said, you know, this is not just a throwaway line, right, when, when Merrick Garland says, um, we are going after folks whether you were there or not um leader of the Oath Keepers, this is a big deal, um, so a big detail because he was not physically present, but, um, presumably they have good evidence that he organized and coordinated and fundraised and, and everything.

And, and secondly, these are really big deal because these are the first defendants charged with seditious conspiracy. That's 18 USC Section 2384. That is, if two or more persons conspire to overthrow, put down or destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by forced to seize, take, or possess any property of the United States, uh, they shall

0:03:55 Thomas: They're not yeah yeah this

0:04:46 Andrew: Be fined under this title, imprisoned not more than 20 years, or both. Um, it is significant that, uh, the Department of Justice considers the events of, of one six to be, uh, an insurrection, to be sedition against the United States, um, and I will tell you, um, the reason that this is an aggressive charge is because there is a non-trivial argument. I think it is by far a losing argument. But you don't have to be a pro-Trumper to say, kind of feels like the statute that I just read you, right, 18 U.S.C. 2384, is maybe a bit overbroad and maybe overlaps with the First Amendment, right?

Like, you know, conspiring to overthrow, I mean, throughout our nation's history, you know, things like the Alien and Sedition Acts and the like, you know, have been used to restrict what we would now think of as free speech, And right? So when you say we're going to charge somebody with seditious conspiracy, you know that in addition to everything you're going to have to prove at trial, you're going to have to prove on appeal that those convictions are valid and constitutional. I think they will, right? Again, you as we're sort of reading the tea leaves, think this is really important. And I think it's important to set the groundwork as you go up the chain, right?

Because the more you're looking at folks who were not physically present, physically storming the a Capitol, um, the more you are looking to coordination, right. And you can, uh, you know, you can charge them with conspiracy to breach the Capitol or, you Know, conspiracy to interfere with an ongoing, uh a session of the Senate or that sort of thing. But really what you want to charge these people with is

0:05:30 Thomas: Yeah. Right.

0:06:31 Andrew: Yeah, what they did a conspiracy.

0:06:31 Thomas: What they did. Trying to take over.

0:06:35 Andrew: Yeah. Yeah, by to force to to prevent, hinder, or delay the execution of any law of the United States, here being the Electoral Count Act. So I'm very excited about that, and I think, you know, if you've been on team like, Merrick Garland, it's been a year, it's time to make things happen, which, you Know, we've been one, is a really good sign. So more in-depth, obviously, to come, but, well,

0:06:35 Thomas: Yeah exactly.

0:06:58 Thomas: Well I just want to give you A pat on the back, you know, for those tea leaves you read us. I mean, that was that didn't seem like much in that speech that Merrick Garland gave us, but I think you were proven completely correct there to highlight that language. You know, that it's nice, I guess, to make a prediction and be proven right so quickly, I guess. Congrats, my friend.

0:07:21 Andrew: A, thank you, and B, to have it not be a disastrous prediction. A lot of those have been coming true lately.

0:07:25 Thomas: Yeah, that's true. We don't count those as, yeah, it's a good point, you know, to be good scientists here, we got to count your disaster predictions when they come right immediately, but somehow they're less fun, so they feel, you know, like they don't count as much.

0:07:37 Andrew: Right. I don't think they should.

0:07:42 Thomas: All Right, well, as I alluded to, you you are swinging in a pile of documents because they just handed down this decision right as we're going to record, I saw the headline, uh, I'm sure you've already had time to read it three or four times, read the whole decision, uh, no, I heard Andrew live reacting a little bit as As he just, you know, we're about to hit record, the decision comes down and I hear, oh, so they're just lying about it.

0:08:04 Andrew: I did. That was literally my reaction. So that

0:08:08 Thomas: So this is about the vaccine mandate. I saw the top line was it's struck down for large employers, but going to be okay for healthcare workers. Is that accurate?

0:08:19 Andrew: That is accurate. Remember that these are administrative proceedings. Right. These are on applications to stay or enjoin lower court judgments. I'm Right, not going to spend any time on Biden versus Missouri. Missouri. That is the the decision upholding the vaccine mandate for health care workers. That was five four. We know that because although the majority opinion was per curiam, we have a dissent of idiots from Thomas Alito, Gorsuch and Barrett. Brett Kavanaugh and and and Chief Justice Roberts were persuaded that the Secretary of Health and Human Services has the authority to regulate the health of health and human service workers. Yeah, sitting Supreme Court justices were not.

0:08:43 Thomas: Wow.

0:09:05 Thomas: This Of human services. Yeah. Yeah. Yeah.

0:09:12 Andrew: And yeah, my blood pressure is high enough, so I have not yet read that dissent. I'm sure we'll do that next week, and I'm sure that it is preposterous. That gives you some clue as to the alignment in the decision in NFIB. That was the same National Federation of Independent Businesses that challenged the various mandates within Obamacare. I mean, it's just a conservative front group challenging the OSHA ruling for large businesses. This is, again, per curiam, very clearly a 6-3 opinion the other way with all of the court's conservative wing in support and only a dissent from Breyer, Sotomayor, and Kagan.

0:09:12 Thomas: Oh

0:10:00 Andrew: And as little cherry on top, a Gorsuch-Thomas-Alito extra stupid concurrence? Yeah, that's fun.

0:10:06 Thomas: My God. Wow. Wow, we're getting different varietals of conservative, uh, stupid. Yeah, yeah.

0:10:09 Andrew: Yeah, Yeah, exactly. Yeah. They they are the opus one of conservative stupidity. Right. Like, you know, individually cultivated and picked at the height of freshness. Look, we break down the Sixth Circuit's consolidated opinion in this case. And we talked about the delegation of powers from Congress to OSHA to carry out its mandate, which is safety in the workplace. We pointed out that the Fifth Circuit opinion that that Sixth Circuit overruled, effectively overruling, read into that delegation of power to OSHA, a requirement that the harms be unique to the workplace. Place. That's not, that's just a hundred percent made up. And

0:10:15 Thomas: Double could

0:10:58 Andrew: Once you get past that, the facts are such that it seemed like this had, you know, maybe a glimmer of hope of convincing, you know, I guess Roberts and Kavanaugh, right? The two conservative justices on our current Supreme Court who least want to, who least share the enthusiasm of their howler monkey colleagues of wanting affirmatively to kill Americans. Will just tell you, this is, as I was reading through that I gave you the live reactive, they're just going to lie now.

0:11:33 Thomas: Have been talking about anything but clarify what that was about. Yeah.

0:11:36 Andrew: Yeah. So start at the bottom of page six, the uh, Solicitor General, right, arguing on behalf of the OSHA rule, does not dispute that OSHA is limited to regulating work-related dangers. And again, right, because as we explained from the Sixth Circuit, um, a danger can be magnified due to the context of the working environment. In my house, I don't sit in a cube farm with 30 other people who sneeze on me.

0:12:01 Thomas: It's a joke.

0:12:01 Andrew: Yeah, it's ridiculous.

0:12:02 Thomas: This is a joke. I, wow, Jesus.

0:12:05 Andrew: And so the court's ruling here, again, remember, this is administrative relief. This is staying the Sixth Circuit's opinion. So this is saying we think that the challengers have a substantial likelihood of success on the merits of this argument. Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

0:12:43 Thomas: Christ, no.

0:12:43 Andrew: Just factually false, right? And so, you know, if the Supreme Court is going to reinvent reality, I mean, you knows, it's going to be a challenge for us to do this show. And it says, says, you know, permitting OSHA to regulate the hazards of daily life simply because most Americans have jobs and face those same risks. No, again, they're not the same risks, sorry. They're not the same interests. While on the clock would significantly expand OSHA's regulatory authority without clear congressional authorization, no, it would not.

0:13:06 Thomas: Let it all out, Andrew, you're not mad enough, I want to hear more.

0:13:16 Andrew: I could not be angrier. Yeah and

0:13:22 Thomas: It's insulting to our intelligence as a country. This, this decision. I mean, this is a joke.

0:13:27 Andrew: And then, I mean, what I thought was, you know, really a knockdown argument, if, uh, you know, if, if you're an honest, uh, interlocutor, um, bottom of page seven, in looking for legislative support for the vaccine mandate, the dissent turns to the American Rescue Plan Act of 2021, that legislation signed into law on March 11th, 2021, of course, said nothing about OSHA's vaccine mandate, which was not announced until six months later.

In fact, the most noteworthy action concerning the vaccine mandate by either house of Congress has been a majority vote of the Senate disapproving of the regulation on December 8th, 2021. Um, that's just not the way delegation works, right, when a congressional act gives an agency power to administer and specifically gives OSHA power to administer money in connection with COVID-19 to then say COVID-19 is not the kind of thing that Congress gives OSHA the power to regulate is just nonsense, right? We're not interpreting legislation here, right. The only question is, is regulation of COVID-19 within the express authority delegated to OSHA or not. And it has been demonstrated time and time again, we already broke this down in the Sixth Circuit's opinion, that health risks, that health risks like AIDS were absolutely within the uncontested suggested mandate of OSHA, explicitly delegated to it by Congress.

0:15:01 Andrew: And when Congress says, hey, hey, OSHA, here's some billions of dollars that you can spend on COVID, well, how the hell is to spend that billions of hours if not promulgating regulations? Stunningly dishonest. But then you get the capper, and I'm going to read this and then move on to the next segment unless you have a question, because I can't do it.

0:15:22 Andrew: I can' do it, I have to. Just see if you're with me on this, it is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind, addressing a threat that is untethered in any causal sense from the workplace. This lack of historical precedent, coupled with the breadth of authority that the Secretary now claims, is a telling indication that the mandate extends beyond the agency's legitimate reach. Flu was the century, the reason to pick, in its half century of existence, oh shocker, we didn't

0:15:22 Thomas: You're tapping out. Yeah.

0:15:58 Andrew: Have a lot of pro-consumer oversight I What everyone who is non-QAnon agrees is the Relevant Locus of Comparison, right, is Spanish flu of the early 20th century, right? That's where the 1908 Jacobson decision, which, by the way, permitted Massachusetts to have mandatory vaccinations.

0:15:59 Thomas: I'm surprised they even put that in there. Yeah.

0:16:22 Andrew: That's The level of just, this is the kind of dishonesty that you have to write it with like the Joker level smirk on your face of going like, oh, this will really trigger those libs. And I'm serious about that, right? Like this is, this isthe kind of thing that goes beyond like ordinary dishonesty and into like, you know, cartoon supervillainy dishonesty. But yeah, so there you go. I'm sure we will break down this as well in next week's episode. But are my instant reactions. Glad to know at least that, you federal employees, that there was some hope of sanity.

0:17:08 Andrew: But, yeah, large employers, mandate because why would an organization tasked with making you safe at work have the authority to make you safe? At work. Um,

0:17:22 Thomas: Unbelievable. I means, is there nothing to be done? When does this stuff break down? Maybe not with this decision, but like what's going to happen And when it gets so bad that, you know, enough people are like, no, we're not. We don't want to follow this idiotic decision. But I mean, when does that?

0:17:37 Andrew: Well, yeah, so, so two things. Number one, um, remember that if you're a private business, uh, you can voluntarily impose mask and vaccine requirements. Um. And, and, and look, we, we've seen this across the country in responsible States.

0:17:46 Thomas: Right. Until the next Supreme Court decision.

0:17:55 Andrew: Yep. Uh, and number two, if, if explode as they very well may could, then the solution, I realize it's kind of a long term, but, you know, the solution is for the Democrats to run as they did in 2020 on, we're the party of vaccines and mask mandates and keeping you alive and and and packing the court and to elect enough Democrats to pass legislation because all of that. I mean, this is what is so galling. Again, I hope I've made this clear, right? The question, at least for now, on the extent of the scope of an agency's authority to promulgate regulations is, were they given that authority by Congress? They plainly were, right, and I just read you the pretzel that the conservative wing of the Supreme Court has to tie itself into to say that it wasn't. But again, that is super duper easily overturned by having an express congressional authorization.

0:18:18 Thomas: And packing the court.

0:19:01 Thomas: Yeah.

0:19:01 Andrew: Right. And you just drafted the bill. I'll draft the bill for Congress right now. We have several members of Congress that listen to this program. You know, call me.

0:19:08 Thomas: I just called Kyrsten Sinema. She says no for some reason. I don't know.

0:19:11 Andrew: Yeah, it you know, you just say, you. This reaffirms that X grant, Y grant, and Z grant throughout history were intended to give, yeah,

0:19:21 Thomas: Obviously. Yeah. Can we get a lot of that language in there? Can we write the most sarcastic bill in the history of Congress? Obviously.

0:19:23 Andrew: I'm on it.

0:19:29 Thomas: Obviously, for any brain donors out there who don't understand this concept, obviously, OSHA can regulate safety of the workplace. COVID is definitely a workplace safety issue. We hereby in Congress authorize that, you know, like that would be fun. I would love that.

0:19:45 Andrew: Would kind of love that too. I it I, I just want to emphasize this, that, that, that again, in the entirety of the NFIB decision, when you control F for AIDS, right, we spent a lot of time on that Sixth Circuit opinion explaining, hey, look, AIDS, not the kind of thing that originates in the workplace, depending on your workplace, um, but absolutely the kind a workplace may present unique challenges, right? And particularly like at the early outset when there was a terrifying amount of disinformation coming out regarding AIDS and its transmissibility, this opinion does not, control F, A-I-D-S, not in the opinion. To just say like, yeah, we get that what OSHA

0:19:48 Thomas: You

0:20:35 Andrew: Did for a decade would contravene the argument we're making right now, but we don't deign to answer that argument, um

0:20:43 Thomas: Know, we lost those pages of history, so we don't know that. Well, that's it for announcements.

0:20:46 Andrew: Yeah, so all right, what else you got for me? Yeah, democracy

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0:24:07 Clip: Thank you, Dr. Hibbert. I rest my case. You rest your case? What? Oh, no. I thought that was just a figure of speech. Case closed.

0:24:16 Thomas: So, this was a weird one. Something kind of made the viral rounds via, Via Democracy Docket, a Twitter account. I don't know if that's a publication or just a viral kind of Twitter thingy on the left. But it was essentially a one weird trick to beat the filibuster. And so, I guess I'll just ask you, Andrew. Drew. Did somebody stumble upon one weird trick to beat the filibuster?

0:24:21 Andrew: No

0:24:41 Thomas: I didn't even get my hopes up.

0:24:40 Andrew: No, no, they did not. And look, like it was not just Yeah

0:24:43 Thomas: I don't have any hopes left to get up.

0:24:43 Andrew: You should Um MSNBC ran an article that said Chuck Schumer's filibuster dodge for voting rights just may work. Now, I want to be fair, because again, like, MSNBC, I like Democracy Docket, if you actually read those full articles, right, do concede, right, you get to the full story. And and there is, right, there's a level of strategy here, um, that, a I I think, is is pretty interesting, and I and I want to cover sort of what that is. And B is, um, the kind of hard cardball that, you know, people have been saying, "Oh, I want Joe Biden, I want Chuck Schumer to, you know, do everything in their power to stick it to to Kyrsten Sinema and Joe Manchin." Well, this is one of those, everything in there in their power.

0:25:32 Andrew: Right. And I'm going to talk about, like, the limited effect that it does, but it does us absolutely no favors to run headlines that suggest that this may make the vote on the filibuster irrelevant, because it, it for, for ultimate passage, because it does not, um, and that's a real shame, because when it doesn't, right, then

0:25:56 Thomas: Yeah, now people think that it should have or

0:25:57 Andrew: Yeah People Will Say like, "I can't believe Joe Biden didn't use the messages between the Senate to overwrite" and, okay no

0:25:59 Thomas: Yeah. Yeah. And if you do that, by the way, that dynamic you just described times 10,000, that's the information bubble a lot of people on our side live in. And it's frustrating. Like, there's all these things that they think he could have done, or somebody could have done, that are magic bullets, and it's hard because it's such a tangled web for Andrew Torrez here to explain each one, and, and, you know, so it's like, it's just this permanent feeling that people have that Democrats are constantly failing them in ways that don't even exist

0:26:37 Andrew: And like using reconciliation to pass the American Recovery Act, right, and the initial thought process, which was, "Hey, can we get $15 an hour minimum wage in on that bill," right, and then the Senate parliamentarian said, "No, no, you can't," right, and then, all of a sudden, instead of everyone being like, "Hey, well, I guess Joe Biden really, really is serious about that $15 an hour minimum wage thing." It was all, "I can't believe the Democrats won't just fire the Senate parliamentarian and force it through." And anyway, um, you are correct. And I think, like, this is one of those things where we should be commending Chuck Schumer for being creative and playing hardball and hoping that it has the effect that Chuck Schemer hopes that it will have, which is not to beat the filibuster on final passage.

0:27:25 Andrew: So, all right, enough preliminaries. How do we get there? I'm going to tell you, strap in for the story because it's going to include 80s cartoons. It's going to include a literal desk full of candy. There's good stuff along the way. So, Thomas, want to first talk about a general way in which the House and the Senate at work, and that is oftentimes it happens that a bill will pass the House and the Senate and will be different, and then we'll have to be reconciled.

0:27:56 Andrew: So as it turns out, like we're all used to the reconciliation process, right, separate from the budget reconciliation process. Yep. But kind of the modern way, with big bills where there's a lot of differences, is you convene a joint conference committee with representatives from both the House and the Senate. They lock themselves in a room and they basically hammer out the final language of the bills, right, and then there's some procedural stuff where you get the House to conform its language and the Senate to conform its language, and then it can go to the president and get signed. And, when you're talking about bills that are a thousand pages long, like, yeah it is. But that's how you fix it. As it turns out, a process you don't really hear about very often that used to be the only way they did it, right, back in old-timey days, and is still the way they do it on little tiny bills, right? Right. Because, because your bills have to be word-for-word identical.

0:27:39 Thomas: Right sure, right different things, yeah yeah it's cumbersome process, right? Right?

0:28:53 Thomas: Mm-hmm.

0:28:53 Andrew: Right. Like they can't you know, there's a typo in the Senate version, you got to fix that thing. And so Right. That old timey way was called messages between the houses. And that's what you're going to see in the headlines talking about this one weird trick. So what happens is you send the House version to the Senate the other way around. Say House passes it first. They send their version tothe Senate. The Senate marks it up and then they send the Senate amendments back to the House and the House amends the Senate amendments and sends them back to The Senate and back and forth. And Right. Ultimately, right. The idea is if you keep exchanging enough crunch wraps, you'll get to you'll get to the one. Right? Yeah.

0:29:26 Thomas: The one true Crunchwrap.

0:29:28 Andrew: Yeah, that's right. And if you're asking yourself, what does this have to do?

0:29:31 Thomas: Do they need like a taste tester for the Crunchwraps to see if I'm available?

0:29:33 Andrew: Yeah, yeah. Yeah. If you're asking yourself, what does this have to do with the filibuster? It doesn't. So it's OK.

0:29:41 Thomas: I was wondering that. How do we get to there? Okay.

0:29:42 Andrew: Yeah, we'll get there. We'll get there. It's just got to go through. But first, what you need to know is in that ordinary process in the Senate, amendments from the House get assigned to this thing called the desk in capital letters. And if you're wondering what the hell that means, it's good thing you listen to the show because this is not something you can find out on Google. I know I tried.

Um, and first I'm going to explain why you can't find this answer on Google because it's hilarious. Um. The reason is because the Senate maintains a secret candy desk. I swear to God, I'm not making this up. You may have heard about this, right? Um, because it'S, you know, it'S secret, uh, in the way that like, you Know, the in and out secret menu is secret, right. Which is to say, like, it's not not at all secret. It's a literal desk. It is filled with candy. For a while, when Rick Santorum was in the Senate, Rick Santorum sat at the desk, and he got Hershey to send hundreds of dollars of Hershey bars and stuff that he put in the desk. The reason that the desk is a big deal is because it's against the rules to eat on the Senate floor, so this is how the Senate proves that they're badasses and like we

0:30:54 Andrew: We scoff at rules. We have a secret desk full of candy, right? Like, beat, beat that, you law-abiding goody two-shoes. So people love this fact. So whenever you Google Senate desk in any combination, what you get are like 10 000 articles about like, did you know there's a secret Senate desk fullofcandy Um, and you cannot find out the thing that I'm about to tell you, which is the desk in capital letters means the Office of the Secretary of the Senate.

0:30:25 Thomas: Right. Oh, wow.

0:31:26 Thomas: Just to clarify, the candy desk has nothing to do with this thing, right? You're just saying you, you, that was all the results you got.

0:31:30 Andrew: The candy desk right. That candy

0:31:34 Thomas: I was, my

0:31:34 Andrew: Desk is what will happen when you go searching for the desk

0:31:35 Thomas: Mind was trying to tie it into whatever we eventually get to on the filibuster. If you send a message via AIM, AOL somehow no filibustering. I don't know.

0:31:39 Andrew: In candy. Yeah. Yeah, no, no. So, so Here's what happens. Come in and they are assigned to the desk, and the desk means, uh, it's the Office of the Secretary of the Senate, and that person, rather like the Senate parliamentarian, right? Not elected, elected but aids the Senate in their duties. And one of the things that the desk does is assign bills to committee. But again, because the Secretary of the Senate is not an elected position, right, you can't just say, right, it would be super duper powerful in a way that our elected members of the Senate would not appreciate if the desk was the final word in where bills go, go, right? So the desk says, "Oh, hey, this looks like it belongs in judiciary." And then I recommend that we assign that to the Judiciary Committee, and then that comes up for a vote, right, because the rest of the Senate could be like, yeah, we get that you recommended it go to the judiciary, but we're sending it to somewhere else.

0:32:40 Thomas: To the candy desks. No, sorry. I'll get it out of my head.

0:32:41 Andrew: Right, yeah. And because that comes up for vote, that gets to get debated, and because it can be debated, it can can be filibustered right so now imagine that it's 1798 and you serve in the House of Representatives and um you know you're literally sending out, I don't know, like ravens with the messages like attached to their little legs, right, um, and and the Senate every time they get one of your little scrolls can just uh it comes to the desk, they can assign it to the sub sub basement right and and literally be like, oh, yeah, we'll get to that. Wink, wink, nod, nod. Right. Now you're in the House. You're already feeling inferior because it's 1798 and you're, you know, one of those dirty members of the House that is actually elected by the people instead of being

0:32:48 Thomas: Yeah. Here we go. Okay.

0:33:29 Thomas: Right.

0:33:29 Andrew: Appointed by the beneficent state legislatures. Right. So you already feel second class. You got guys with powdered wigs looking down their nose at you. You. And so are you just going to sit there and take it that when you send back your bills with amendments on it, then some unelected desk can just send it off to the basement? And the answer to that is no, you're not just going sit there. You're it. And this is where 80s cartoons comes in, I

0:33:29 Thomas: Appointed By This In the Senate, yeah. Oh.

0:33:58 Thomas: Geez, why? This is a journey. I love it. Are You gonna tie in Transformers toys?

0:34:01 Andrew: You again? Uh, I wish. If you grew up in the uh time of of watching cartoons uh on Saturday morning, you would remember that um, that was also a time that was overloaded with public safety messages, right? PSA's.

0:34:05 Thomas: Right.

0:34:18 Thomas: Like There's the GI Joes, right? They do their thing.

0:34:19 Andrew: Right. Right, yep, they they did that, but but also, like, stations were mandated to run a certain amount of public interest programming, and they were like, "All right, well, the only, you know, we could, we could sell toy ads, during the Saturday morning block. But, you know, we can't, this is not like, we can't run Miller Lite ads, right?

There are truly, know, monetizable advertisers are really looking for, you know, people 25 to 40 with disposable income, not eight." So they ran a lot of the PSAs that they had to run would get run on Saturday mornings. And one of them was a PSA, I know people are nodding along with this, for Pueblo, Colorado. Colorado. And as it turns out, Pueblo, Colorado was the physical location of the U.S. government publishing office. And what they did was and still do is produce all sorts of government manuals, including, like, you know, how to get, like, various grants in English, right. And so you would write away, and they would just say, like, "Hey, you need X, like, just send away to of Pueblo, Colorado." So if you're a kid of a certain age, you remember ads promoting Pueblo, Colorado. Well, U.S. Government Publishing Office is now entirely online, uh, I mean, they still do some physical publishing, but, like, they've, they've made nine billion documents available, uh, via their online portal. These are really, really cool. Yeah.

0:35:48 Thomas: Nine billion Huh.

0:35:49 Andrew: Nine billion. That's that's a, they just did a press release on it. Um, one of the things that they do is they publish a book written by the House parliamentarian called House Practice, a guide to the rules, precedents and procedures of the House, and the most recent one is for the 115th Congress from 2017 to 2019, but I will tell you this has not changed in at least 30 years, that explains the process of messages between the houses. Basically, it says, uh, representatives, Representatives, House of Representatives and the Senate communicate and coordinate their activities by sending formal messages to each other. These messages between the houses constitute the sole source of official information regarding actions taken by the other house, right? And then it lists a couple things they do.

0:35:51 Thomas: Okay.

0:36:36 Andrew: Here's what transmitting messages between the houses does to get around the you-go-to-the-basement problem. And that is, if you've sent something three times and the Senate has filibustered, not acted, sent it back, whatever, that the next time you send that message, it is considered highly privileged, and highly privileged means that it triggers Senate Rule nine. Okay, and Senate Rule 9 says messages from the house House of Representatives may be received at any stage of proceedings, except while the Senate is in the literal middle of a vote, or ascertaining the presence of a quorum, or while the journal is being read, or while a question of order or a motion to adjourn is pending.

0:37:23 Andrew: And then it has this line, this is the entirety of what Chuck Schumer is thinking. Messages shall be sent to to the house of representatives by the secretary. And then the, house corresponding rule has the same shall rule, right? Messages shall be sent to the floor of the Senate. So put all of that together and here's what it means. If you use messages between the houses, it skips the desk, not the candy desk, but it skips the desk of the office of the, of of the, the secretary of the Senate.

0:37:52 Thomas: And It Goes To Colorado. Where

0:37:58 Andrew: Yeah, that's right. Yeah. To Pueblo. Uh, it, it doesn't get assigned to a committee. It isn't subject to debate. It goes straight to the floor.

0:37:58 Thomas: Uh, yeah. Okay. You've sent a message to the floor. But hold on one sec. Did this all have to be based on reconciling two bills? Or this is just any free messaging service?

0:38:08 Andrew: Exactly And so, nope, it all has to be done based on reconciling two bills. You were exactly right. So here's what, here's, what Chuck Schumer is, is proposing to do. Well, as I described what he's proposing to do, let me explain the narrow problem that it's meant to solve. And that is the House and various members of the Senate have tried on multiple occasions to introduce the legislation on the floor of the Senate. The legislation being the Freedom to Vote Act, which we discussed at great length in episode 552, and the John Lewis Voting Rights Act. And each time Mitch McConnell has said, well, I think we need to debate whether that should be introduced or sent to committee and by doing that has said – by the way, if we begin that process – I'm not going to try and do more McConnell – that would then – to cut off that debate would require 60 votes.

0:38:18 Thomas: Okay.

0:39:12 Andrew: So they've filibustered the introduction of that – of those bills to the floor of the Senate. It. So with that as a problem, here's what Chuck Schumer is proposing to do. They're going to take a bill that has already gone back and forth three times. Now, I told you from the beginning, like big bills don't do that. Don't use this messaging from the House process. Why? Because they're big, right? And so you want to sit people down in a room and actually hammer it out. But little bills, this was a new thing that I learned, apparently do use this process. And there's some bill relating to something about NASA that has gone back and forth three separate times. I cannot even find the text of the bill that this is, but it's got to be like a paragraph long, right? It's got to be declaring something like Neil Armstrong Day or something. Because our Senate is populated by 50% monsters, they've sent it back for amendments and sent it down to committees these three separate times right

0:40:09 Thomas: We need to represent the people who don't believe we landed on the moon contingent, probably.

0:40:12 Andrew: Dear God, you're probably correct. So so here is what Schumer is going to do. He's going to take the Freedom to Vote Act, he's going to, which again, listen episode 552, he's going to append on to that the John Lewis Voting Rights Act, that among other things restores the section two preclearance of the uh 1965 Voting Rights Act that was struck down by the Supreme Court in Shelby County versus Holder. So it would restore that Southern states need to seek preclearance for passing legislation that infringes on the right to vote. Again, very, very good thing. We've told you how great the Freedom to Vote Act is. So he's going to combine that into one long bill and then a that is called an amendment in the nature of the substitute. OK, what they're going to do is strike every word of the NASA bill and replace it with all the words from this brand new omnibus voting bill. And then they're gonna send it as a message to the Senate.

0:40:15 Thomas: Wow.

0:41:05 Thomas: This is really getting elaborate. Nice. There we go. Okay.

0:41:23 Andrew: The House Rules Committee already met yesterday as we're recording this. They met on Wednesday in the evening to get that process started. Here's what that will do. That will then bypass the Mitch McConnell, let's send this off to a committee to study it until the end of time. It will bring it to the floor, and then that will then immediately—it has super priority, right? As long as they're not, you know, voting for a quorum, then we will have debate on that bill, And the question will be at that point in time, right, it comes time to pass, it will still be subject to the same filibuster rules, right.

0:42:02 Andrew: Right. So it does not, this is just to discuss it. So, all so, of the headlines that are like, it can bypass the filibuster. Yeah. It can bypass the super duper evil filibbuster you didn't even know was happening.

0:41:45 Thomas: Yeah yeah yeah this is just to discuss it, you're saying yeah wow yeah

0:42:16 Andrew: Right. But it will not bypass the real important filibustering that you need to take before you take a vote on this thing.

0:42:16 Thomas: That we all already knew about that, we're still not getting past, okay yeah

0:42:23 Andrew: Right now, I want to say a couple of things here, right? Number one, why would you do this? Well, you would do this, A, to embarrass the hell out of Joe Manchin, right? Joe Man Chin is a co-sponsor of the Freedom to Vote Act. He is not going to stand up in opposition to the Freedom to Vote act. Instead, Democrat after Democrat are going to get up and say, I would like to hear from Senator Manchin on the merits of the Freedom to vote act, which he has co-Sponsored, right. And I think the idea is that if you have front and center, a discussion of how important and significant this legislation is, then maybe that will shame Manchin. I honestly think they feel like if they get Manchin, then somebody will pull Kirsten Sinema aside and be like, no, you're not going to be the last surviving holdup.

0:42:34 Thomas: Oh no this is, maybe this is why we're seeing just things about her today you know this

0:43:21 Andrew: Who knows? Yeah, look, there are lots of ways for this to fail, I right? Do not, I mean, it's why I went through the whole process, right, I do not want to suggest that, it doesn't have all those paths of failure in it. But I want to say that this is the kind of, like when you have been saying, yeah, let's play constitutional hardball, all right, we're going to take a bill, we are going to strike out every single word we're going to insert the bill that we want you to pass and then we're going to send it over as a priority message, yeah that makes you debate this and not send it off to a committee

0:43:37 Thomas: Is hardball wipe it off just yeah, send a raven yeah trying their asses off over there, I appreciate it

0:43:54 Andrew: Um yeah that, I do, um, and I will add, uh, it has led, I, I shared this out, I usually have a policy of not sharing Fox News, uh, even when it makes my point, because, look uh but I shared it out on, yeah, I know, I shared it out on social media, I will include it in the show notes, Mitch, um, McConnell is freaking out about this, right, like, he is, he's, he's like, well, you know, if, if, if you circumvent the filibuster, then we'll do everything we can to delay and it's like oh go, oh no, Mitch McConnell threatens to delay more

0:44:07 Thomas: Good policy huh oh wow yeah yeah he's been holding back you know, he's being nice so far we know he, he's nuclear at all times, you know, there's there's no lesser gear of McConnell but

0:44:30 Andrew: Yeah yeah yeah I exactly right. So who cares? That's exactly right and the fact that he's saying that to rally, you know, his supporters on Fox News that tells me that that he is at least worried about it. And, um, you know, if he's worried about it, that's, that'S all I need to be for it.

0:44:57 Thomas: I think the important point there is really, I'm glad you went through that. That is super interesting to that, you know, they're using that elaborate a procedure to try to. But the important point seems to be, this is only, again, to reiterate, to get around the double secret evil filibuster that's even more evil that we didn't even know about.

0:45:14 Andrew: Yes. Look like we've talked about this before, right? Like that something that is a real challenge for people like you and I who live this every day, right. Explaining procedural stuff to an audience where, you you know, 75 percent cannot name more than three sitting members of Congress. Right. Like, I mean, you know it's it's That's a real challenge. And so, you know, being able to draw attention to, hey, we had to do this wacky thing because they were using the filibuster to not even let us talk about whether we should do things to protect the rights of the American people to vote, you know, maybe maybe that helps break the log jam of lies of right, like, because Mitch McConnell in his statements, and you will hear this, uh, we have, we have long debunked these, that you know, we'll say, well, you know, the, the framers gave the Senate the power of the filibuster to stop stuff like that, and Every word in that sentence is wrong.

0:45:34 Thomas: Yeah. Yeah.

0:46:10 Thomas: Nope. Yeah. I need that Luke Skywalker. It's one good thing to come out of the new Star Wars. This is amazing. Every single thing he said is wrong. Whatever that quote was. I only watched it once.

0:46:12 Andrew: Right. I I was thinking of my cousin Vinny. Everything that guy just said is bullshit.

0:46:24 Thomas: Oh, there's that too. Yeah, no, good, good call.

0:46:27 Andrew: But yeah. So, you know, look, it we don't know what the result will be of bringing this to a floor and having public discussion and debate focused on voting rights for for a week or for longer. Longer, um, but, uh, it can't hurt, um, and these are these are great bills that that a super majority of the American public support when you drill it out right. When you ask questions like, you should you be allowed to give water to people waiting in line, should people be allowed to vote by mail without having to come up with, you know, ridiculous excuses, uh, you know, all of of those are very, very popular. And if it, if, um, it works, um, know that's that's great, but it is not a solution to the filibuster. That's a question that we still have to tackle head on. And the game now is embarrass Joe Mansion, embarrass Kirsten Cinema, and and that will continue to be the game. If there was a procedural way around it, I promise we will tell you what that is here on Opening Arguments.

0:46:40 Thomas: Yeah? Yeah. Well, it's you still need 50 people. So even if you did some some one weird trick. I could imagine either one of those senators being like, well, you did shenanigans, so we're actually going to vote against it because of shenanigans. You still need 50 votes to pass something, even shenanigan.

0:47:18 Andrew: Right.

0:47:31 Andrew: It, exactly. Right. Right. And it, and totally fits within the, you know, Joe Mansion uh school of communication to say, yeah, yeah, I know this is a vote to adjourn as the committee of the whole, but really what they're doing is getting rid of the filibuster. And I've said I'm gonna vote to keep it, right. And that's always easier to, you know, answer these kinds of procedural objections than it is to make them. But, you see, so this is about bringing the resolution to the floor and rallying public support, and is what we've asked for. This is hardball. Let's try it.

0:47:45 Thomas: Yeah. Yep. Yep, yep.

0:48:08 Thomas: All right. Well, Well, I'm glad that, again, they're working their asses off over there. We haven't given the Senate enough Democrats who believe what we believe. That's the key. We haven'T elected enough of them. We elected 48-ish, maybe fewer, some decimal points in there. It's gotten us a record number of federal judges, by the way. Incredibly important, but we didn't get enough to do the things we need. We really need to remedy that as fast as possible. And shenanigans, although I'm glad they're trying, is not the way out of this. The permanent solution.

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0:50:21 Thomas: So go to HelloFresh.com slash opening16 and use code opening16 for up to 16 free meals and three free gifts. HelloFresh.com slash opening16 and use that code opening16 for up to 16 free meals and free gifts. It's HelloFresh, I America's number one meal kit for a reason. Just enough time for a quick wildcard here, Andrew. This one I think is a lot of fun. I saw some posts about this. Basically, we've uncovered some people who signed their names to the crimes they committed, I believe. Is this as juicy as it looked like on social media with the fake electors?

0:50:44 Clip: WOAH-

0:51:05 Andrew: Yeah, Thomas, I think this is exactly as juicy as it sounds. This is a FOIA request made of the National Archives by the watchdog group American Oversight. And what they asked for was copies of all certificates and papers purporting to be certificates of electoral votes for the 2020 presidential and vice presidential election, except those that the National Archives has already published on its website entitled 2020 Electoral College Results. Right. So these are all of the fake certifications conducted by bad faith political operatives, Republican political operitives to say, "Oh, yeah, no, we were the real elector committee." And these all got sent to the National Archives.

0:51:50 Andrew: Right. They were transmitted as if they were real certifications ostensible compliance with the Electoral Count Act. And the reason you do this, as has been made clear by the John Eastman treason memo, is if you have multiple slates of electors, then under the Electoral Count Act, you can break that joint session of the House and Senate to adjourn to decide which slate of electors that they're going to validate. Right. So let's be super clear what happened here. If you've been listening to the show, you probably know. But but it is worth stating it directly. Republicans, high ranking Republicans in various states, Arizona, Pennsylvania, Wisconsin, Michigan, that were lost by Donald Trump and and contested as part of the Kraken lawsuits, um, got together and held a fake gathering of the electoral college, wrote up certificate of the votes of the 2020 electors from their particular state, uh, and then signed it with their name, um, these statements are fraud and perjury, um, and, uh, and by the way, evidence, uh, potentially evidence of, uh, conspiracy with, uh, in in connection with the larger one six committee.

It is important to note, um, that these are not just yahoos who have signed this. Right, like, these are, as as I said, high-ranking officials, David Schaefer, chairman of the Georgia Republican Party, Andrew Hitt, the former chair of the Wisconsin Republican Party, uh, Bill Bockenberg, who's an NRA board member and very, very active in, in conservative Pennsylvania politics.

0:53:34 Andrew: And they have signed things that say, because this is the form that has to be in, we, the undersigned being the duly elected and qualified electors for president and vice president of the United States of America from the state of, here I'm reading from Arizona, but they all say it, do hereby certify the following. Can't do that. If you are not the duly elected and qualified elector, You can't sign a piece of paper that says you are. And these folks did this over and over again.

0:54:01 Thomas: Yeah. Is there some kind of like federal document? I don't know. What kind of can't-do-this are we talking?

0:54:08 Andrew: It violates multiple federal statutes. Right. It is fraud. You are lying in a written document. You are interfering with ongoing operations of the U.S. government. You're submitting a document purporting to have a particular political authority that you do not have, right, purported to be duly elected electors when you know you're not. You're just a group of guys who got together in a coffee shop and said, "Oh, hey, well, we're going to, you know, let's let's submit some Trump." I mean, like this is literal. I mean, that is literally what happened. They were not authorized. None of these bear the signature of the governor. Some of them were sent to their respective state governors. Um, but mean, it again, uh, it is no different than, you know, Thomas, you and I go into Texas, uh, and saying, "All right, well, you know, let's let's convene, let's get together, you know, 25 Democrats in Texas, uh, and say, uh, that they are the official electors of the state of Texas, uh, and uh, and send it off

0:54:15 Thomas: But

0:55:09 Andrew: And be like, "Oh, well, I don't understand, Elizabeth Warren won Texas, I don't know where you people came from." Um, that's crime. Um, and these people have, um, affixed their signatures there too Yeah, so, uh, we now have, it's only it is Yeah is only 47 pages long, so I'm going to include the link in the show notes. I have a copy of the of the documents, if for whatever reason they go off, but it is Arizona, Georgia, Michigan, New Mexico, Pennsylvania, Nevada, and Wisconsin. So in particular, if you're from one of those states, and we have listeners, we have lots of listeners in all of those states. We have listeners who who have run for office in some of those states, through. Because some of these names I was able to recognize immediately, if you're from this state, you will recognize these people as longstanding Republican operatives. And if you are a longstanding Republican operative, that means you have interest in running for office, helping people run for office, being continued to be active in politics.

0:55:17 Thomas: How are we going to know who did it? Yeah. I think I can Sherlock this one. All right.

0:56:19 Andrew: And we need to name and shame and and get the information out that this, that these people sign false documents, and, we may not see, you the Department of Justice indict these folks. This is something that they've, you had for a long time, and they're pretty busy. So, you, they may not face a criminal indictment, um, but they might if we make a big enough stink about it, and uh, it is certainly the kind of thing that uh, in your communities, that at, um, you know, public, uh, gatherings and party meetings and that sort of things, uh, that you can and should raise because uh, it it is, um, it's unconscionable what these people did.

0:56:58 Clip: And thank you, Let's go!

0:56:59 Thomas: And now it's time to thank our new patrons at patreon.com/law. And Ooh, we have a Law'd Awful Movies coming at you very soon. So jump on on for that. You're not going to want to miss it. As always, the ad-free episodes, the early Tuesday episodes, all the good stuff. And so Andrew, why don't you start us off?

0:56:59 Andrew: Oh, Yeah, Thank you to Brandon Smith, Matthew Matterson, Lisa, and Simon

0:57:23 Thomas: And thank you to Paige Kohn, Katie Larimer, Jay Sones or Sonus or something. I'm not sure. How much hog would a groundhog grind if a groundhog could grind. And James Francel, thank you so much, new patrons.

0:57:38 Andrew: Remember

0:57:42 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:57:48 Thomas: And now it's time for Thomas takes the bar exam T3 BE.

0:57:51 Andrew: Thomas, we're going to change it up a little bit for the next couple of questions at the suggestion of a couple of our listeners who point out that, in addition to the multi-state bar examination, lawyers are also required to pass the multi state professional professional responsibility exam, just based on the, uh, model rules of professional conduct. And again, same for, you know, multiple choice, uh, but these will all be legal ethics questions, so, you know, I I thought would be a uh, a nice break, and let's give it a try because I, I don't just want to teach you the law.

0:58:31 Thomas: So how does this go when you pass the bar? Is this a separate test?

0:58:35 Andrew: It's just a separate 50-question test you also have to sit for. So it's a companion. You cannot be admitted. I think there's like one or two jurisdictions that don't require their lawyers to be ethical. But Thomas, it's important to me that I not only teach you substantive law, but that I teach you legal ethics as well. So going to give it a try and see how it works.

0:58:36 Thomas: Okay.

0:58:58 Thomas: Well Well, I think I've learned all I need to know. I just think, what would Sidney Powell not do? And then that's the answer.

0:59:05 Andrew: That's pretty, pretty good guideline, I think. All right, Thomas, an attorney was representing a non-profit organization in merger negotiations with another non-profit entity. During a review of the client organization's financial records, the attorney discovered that the organization had engaged in activities that jeopardized its its nonprofit status. The attorney reasonably concluded that the organization's failure to report these activities to the other nonprofit entity would constitute a fraud. The attorney had not represented the organization at the time of the activities and had not made any false representations to the nonprofit entity during the negotiations. The attorney met with the organization, his client's board of directors, and informed it he would withdraw from representing the organization in the merger negotiations unless it disclosed to the other nonprofit the activities that jeopardized the organization's nonprofit status.

1:00:01 Andrew: The board refused to disclose those activities and insisted that the attorney continue to represent the organization. The attorney declined and properly withdrew the representation without without making any disclosures to the other non-profit entity or to the state tax authorities? Is the attorney subject to discipline for his conduct in this representation? A. Yes, because the attorney did not inform the other nonprofit entity that the organization had failed to report the activities that jeopardized the organization's nonprofit status. B. Yes, because the attorney withdrew from representing the organization in the merger negotiations without the board's permission. C, no, because the attorney withdrew from the representation after informing the board of directors about the need to disclose the activities to the other nonprofit entity, or D, no, because the attorney was permitted to withdraw regardless of whether he informed the board of directors of the need to disclose the activities to the other nonprofit entity.

1:00:24 Thomas: Huh.

1:01:01 Thomas: So this is interesting because I don'T what the psychology of this test is. Because on one hand, you'd want it. Usually whenever there's an ethics anything that, you know, if you've had to take a little quiz at your workplace or something like that, usually they're easy AF, you know, like they're really easy. And I think you would want them to be because like if it was truly challenging, if it was like everybody fails the ethics exam because it's impossible, you'd be like, well, then how's anybody going to be ethical if it's that hard to be ethical? You know what I mean? It's on some sense it should be like yeah, it's pretty easy to do the right thing, you know, to at least know what that is if not to do the right thing. On the other hand, this seems pretty complicated and it feels pretty pretty much like a bar question. So maybe it's as hard as the bar exam. I don't know. Maybe, maybe they focus in on the, on the tricky aspects of legal ethics.

1:01:54 Thomas: Let's see. So what would Sidney Powell do? Sidney Power would just go through with the deal and continue to lie. So we know that's not the right answer.

1:02:03 Thomas: Key is that, like, the attorney's representing one non-profit, and they're merging, they're merging with another, attorney discovers stuff in the past, so not under their watch, I guess, but stuff in the past that would, you know, jeopardize their non-profit status. And if you, you don't tell the other organization you're merging within, that that constitutes fraud. It does feel like the attorney cannot go through with the deal because then they, that then, then they're participating in fraud. You know what I mean? Like, so that, that feels pretty certain that they can't go forward with it. So question is, what do they have to do, I guess? Do they have to report it to the IRS or something? So let's see, what the attorney does is tell the board, can't go through with the merger unless disclose this stuff to the other nonprofit.

1:02:51 Thomas: Board refuses and they say, you have to continue to represent us. That's going to play a part. We've talked about like, can an attorney just quit? And I think that it's going going to be way different. I would think that it would be different depending on the subject. So if you're in the middle of a criminal trial, there's got to be a very high burden for your attorney to just quit because that's such a, you like that's, that's an important time that will throw things off. There's lot at stake there. If you're just doing some sort of business deal, I don't know that there's going to Be that same level of like, yes, you must go through with the whatever until you clear it with a judge kind of thing. So the attorney declines and and withdraws from representation. So is that attorney subject to discipline? You would think not. Let's see. So a yes answer, first yes answer A, is because they didn't inform the other nonprofit.

1:03:38 Thomas: So does the attorney have a duty to, like, go tell the other non-profit that the organization had failed to report the activities that jeopardize the organization's nonprofit status? This, and I think that's an attractive distractor. It's, it's plausible, but I'm not sure that you would have to go tell the other organization, because you could also just not do the merger. You could, You know what I mean? Like, it doesn't, I'm, I'm sure that makes sense. Like the rule would be like, you have to go tell some outside entity of the wrongdoing. Maybe the rule would be like, you got to not try to do this merger, but I'm not. So, I think A might be an attractive distractor, but we'll see. B, yes, because the attorney withdrew from representing the organization in the merger negotiations without the board's permission. Again, I think that might be a problem in a criminal context, maybe, but I don't know that that would be true for this context.

1:04:29 Thomas: Maybe. Gosh, B is also plausible. I guess it's impossible to be ethical. We can't, there's no way to know the right answer. C, no, because the attorney withdrew from the representation after informing the board of directors about the need to disclose the activities to the... So that C is just like the obvious, we're restating what happened and like, yes, that's the right thing to do. So I would lean towards C, knowing nothing else about how these tests go, just because it's an ethics test, so you'd want it to be pretty straightforward, but I don't know. D, no because the Attorney was permitted to withdraw regardless of whether he informed the board of directors of the need to disclose the activity. So that's, so D is also true. So all four answers are actually plausible. This is very hard because I could see a D answer of just like, no, you can leave no matter what.

1:05:17 Thomas: It's fine. I think because this feels so tricky to me and because we're on a new test and I don't, I haven't gotten my feet wet and I know what's going on here. So I'm going to go with the obvious answer for this one. C, no, because the attorney withdrew after informing the board about the need to disclose. I think that's the obvious answer. I'm not convinced it's the right answer. I think there's a lot of argument. I mean, I think there's plenty of argument for answers, but I'm going to go with C. I're going to keep it simple. So we test the waters, you know, simple answer, C, final answer. And then my second best, I guess, for the sake of Thomas's second chance ethics, my yeah, my, my firm has a 50, 50 shot at being ethical, everybody.

1:05:54 Andrew: That sounds worse.

1:06:01 Thomas: I would say D, I would Say it's between C and D for me. How about that? I'll go between C&D. I'm going with C.

1:06:07 Andrew: Right, well, you know, I always like it when you commit to a particular outcome. Um, that that is, of course, has no merits on whether you're correct on either of those, but uh, if you'd like to play along with Thomas, you know how to do that, and and if you've been waiting to play along, right, the start of ethics, I think is a great, great time to get involved. Just share out this episode on social media, include the hashtag T3BE, include your answer, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:06:37 Thomas: And that's our show. Remember to do everything in your power along with me to make sure Kirsten Sinema never holds elected office again. And we'll keep an eye out. We had to move.

1:06:46 Andrew: To name and shame these people who signed fraudulent affidavits. Yeah.

1:06:50 Thomas: Yeah, also we had to remove our good news. I believe we have some good news next episode that we had to move, so look forward to that. So we'll see you all for Tuesday Deep Dive with some good Good news.

1:06:58 Andrew: Indeed.

1:07:02 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:07:36 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.