OA564: The Reteyerment; At-Will Employees Forced to Stay? and Avenatti vs Stormy Daniels!

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 564. I'm Thomas Smith, not a lawyer. That's Andrew Torrez, the lawyer. How you doing?

0:01:27 Andrew: Well, my entire existence has been shortened to one word, but I'm still fantastic. I'm gonna, I'm sticking with it.

0:01:33 Thomas: Well, my entire existence is that I'm not that one word, so we're even.

0:01:37 Andrew: Fair enough. How you doing today, Thomas?

0:01:41 Thomas: Well, I'm a bit edited out, which is great because right after this I get to go edit more. But that's okay, that's my job. And the reason I'm edited out that I need to tell you all about is LotawfulMovies56. We did And Justice for All. Not the Metallica album, though. If you want to pump that real quick before you watch it, you could. No, it's the famous... Is the movie famous or is just that monologue famous? Because, yeah,

0:01:57 Andrew: This was so much fun. Yeah. It's Just I think it's just the monologue, so This is the 1979 Al Pacino, uh, that culminates with the very famous and, uh, I think completely misunderstood in pop culture. Yeah, you're out of order, you're right, of order, the whole system's out of ordered.

0:02:12 Thomas: I agree.

0:02:24 Thomas: I agree. If You want to find out how that's misunderstood, understood, and other things about this fairly weird movie, go check out Law'd Awful Movies, that's for two dollar patrons and up over on patreon.com/law. Just finished editing it for hours, so I hope you enjoy it, uh, it was a lot of fun. Also, while I'm plugging things I've edited, the other reason I was editing so much, and, and thanks Andrew for letting me plug this, Serious Inquiries Only came back. We were off for a while, uh, but we came back actually last week. And And I want to strongly recommend last week's episode because I think a lot of people who listen to the show will really get a lot out of it. What we like to do on that show most of the time is there's some sort of study or science thingy, you know, that's been portrayed in the media as proving certain things.

And Lindsay usually takes us through sort of like the Andrew to this show, you know, taking us through what the media misses and what the study, the underlying science, actually says, says. And there was a really interesting one last week that I really think everybody should check out. It was a political science study that claimed to show that like the will of the people actually has very little influence on law that gets made.

0:02:53 Andrew: Whoo.

0:03:36 Andrew: Yeah,

0:03:37 Thomas: You may have seen it near zero.

0:03:37 Andrew: Near zero is what the, uh,

0:03:40 Thomas: Yeah. And you may have seen that it is actually older, but it went viral like a month ago or something, you know, like stuff does apparently. And Lindsay took us through it. It's really interesting. I'm not going going to give it away, but. But if you'D like to Hear the Expert Breakdown of It, go check out Serious Inquiries Only. That's last week's episode. I just did another one yesterday about the Reddit, subreddit anti-work, which had a whole thingy. It was really interesting, but definitely check out last week's episode. Oh, thank

0:04:06 Andrew: I, have heard last week's episode, which is excellent. I, uh, as, as befitting, if she's the intro of that, I love Lindsey, and, you know, that, how that could you not, um, I have not yet heard yesterday's because, you know, prepping for this show, but, but last week was, was really, really good and is definitely worth a, uh, worth a listen.

0:04:22 Thomas: All right, now let's plug stuff we we won't have time to cover because my God, Andrew, what a news week. Holy moly. But in a kind of a good way, mostly, I think, right?

0:04:29 Andrew: Yeah, I, I think that's great. So, all right, we talked about, lab, you have probably seen the viral story about the challenge to Madison Cawthorn, representative from North Carolina, and insurrectionist, and we will be breaking that down all of next week. Um, uh, head of the Oath Keepers, the guy who I described as Sleazardo from the Transformers, that's a deep cut, uh, Stuart Rhodes, uh, he, goes by Stuart, Stu, to his friends, uh, he's got the eye patch and everything. He has been held without bail, uh, so, uh, good news on that front. And I, I do want to clarify, we don't have an Andrew Was Wrong segment, on clean up on all 45, so I'll, uh, I'll take the heat here.

0:04:47 Thomas: Yeah. Wow.

0:05:13 Andrew: Um, Yeah, It's, it's, that's, well, you know, Allison is never wrong, so you know it'sit would literally just be, uh, me every week. And, you know, no, I, said something that, that, that came out misleading, and so, uh, I just want to own up to it here, and I'll own up there as well. Um, I said that, uh, Stewart Roads was not at the Capital on one six, uh, that's not true. Right, he was one of the agitators, it, he's, isn't that he wasn't there agitating, it's that he was not one of those folks who breached the Capital, right?

0:05:13 Thomas: No, no consequences over there, huh? Wow. Party. Oh, sure.

0:05:44 Thomas: Right. So he was at the rally.

0:05:46 Andrew: And Yes, exactly right. And there are plenty of, you know, and folks have, uh, uh, tweeted, you know, him saying dumb Slizzardo things, all of this, and so happy to be corrected, the point of all of this was that, remember that prior to the Rhodes indictment, the bright line was, hey, if you pled guilty and you were outside and you didn't breach the Capitol, you got probation, right? And, and now, I mean, just as a sort of an illustration of how far things have gone in terms of going up the chain, here is somebody who, you have plausibly tried to take advantage of that situation a year ago, and is now receiving the most serious charge that the DOJ has handed down yet. I do not think that Merrick Garland would have authorized pleading out the head of the Oath Keepers without, you know, sort of real cooperation up the line to, you know, to probation just because he wasn't physically present.

0:06:45 Andrew: But, but again, we should be clear that that physical presence was, he didn't cross over into the Capitol, Capital, uh, he was there on one six coordinating, on, so all the stuff that we talked about on the show that he did, right? So, yeah.

0:06:57 Thomas: Yeah. But I do think that that's somewhat of a substantive correction, because if the overall message message was, hey, look, people who weren't even there are getting charged. You know, we have to, you know, pare that back a little bit.

0:07:05 Andrew: Yep. Yep. Absolutely, we do. And that's why I'm saying it. So I

0:07:12 Thomas: But maybe the next set of charges will be people who weren't Even there. Wait, there's nothing that says no rule in the rulebook that says that won't be true.

0:07:16 Andrew: I again, I sincerely hope that it will be. So,

0:07:23 Thomas: Also note on Stuart Rhodes. Yes, he has an eye patch. But also, yes, it's from a hilariously right wing way of injuring yourself. So I think it's okay. He dropped a loaded handgun. And you shot himself in the face, so it, that's, I'm just giving you the information, I'm not saying ethically one way or the other if it's okay to laugh at him and make fun of him for it. I'm just, I want you to be informed about it, is all.

0:07:24 Andrew: Yeah. Yeah, It If you laugh at Seb Gorka, and you should, you need to laugh at Stuart Rhodes. So that's, I will fight and die on that hill. Also, a little bit of an update to the story we covered in Episode 560 involving the fake electors. Right. These wannabes who signed, who provided the DOJ.

0:07:46 Thomas: Yeah. Who turned in a note saying, I did a crime. Here's my name, signed Me.

0:08:07 Andrew: Here is here is my perjury. Yes. And Uh, we now have confirmation, um, Deputy Attorney General Lisa Monaco said our prosecutors are looking at those, and I can't say anything more with respect to ongoing investigations, uh, so, uh, absolutely, uh, DOJ is looking at these folks. We know that the the Michigan State Attorney General, Dana Nessel, a year-long study into just the Michigan fake electors, and turned that entire folder over to prosecutors. This is to federal prosecutors. And what she said was, if the feds won't go after this, we definitely will in Michigan. But we think that this is better as a federal case because the evidence shows that there are connections between the fraud in Michigan and the fraud in other states. Right.

0:08:10 Thomas: Yeah, huh. Hmm.

0:09:02 Thomas: We

0:09:02 Andrew: So, quoting from Nestle, if it became clear to me that there was not going to be any accountability federally, I think it would be incumbent upon my department to move forward. These are incredibly serious charges. Just the gravity of the situation, I don't think could possibly be overstated as to what it means for our system of elections. We know how close we came to this, the insurrection being successful, uh, and, and then she said, um, the evidence points to a conspiracy between GOP officials across the country to undermine election results and prevent, uh, Biden's electoral college votes from being counted on January 6th. Um, and, uh, they don't have jurisdiction, right, like you would have to to seek comedy from other states, and it would just be a mess to try and do this at the state level. So the fact that she is satisfied, or at least seems satisfied at the moment, seems a pretty strong indication that indictments are coming. We could talk a lot more on that, but we have a huge show.

0:09:59 Thomas: Do we? Do I will bite my tongue, and, and we'll talk more, more about that another time. And one more quick announcement. It's that time of the month again, Andrew, where we have a live YouTube Q&A. As always, the questions come from patrons only, but everybody can come join. It is a lot of fun. You hang out in the chat. We interact with you and we answer. Andrew answers an hour's worth of bonus questions. So much fun. That is going to be Wednesday the 2nd, Groundhog Day. I think we are going to have to watch Groundhog, somehow incorporate Groundhog day into it. And that will be Groundhog Day, Wednesday the 2nd at 4 p.m. Pacific, 7 p.n. Eastern. Be there, be square. You don't want to miss it.

0:10:31 Andrew: Oh uh see

0:10:43 Clip: Down the law, down the law.

0:10:46 Thomas: Time for the good news, Andrew. Breyer is retiring. I am so glad this is it's one of those like, OK, it doesn't mean anything particularly good is happening, although I think it'll be awesome for, some you new blood in that Supreme Court. Biden made the very awkward promise to nominate a black woman during the the campaign, but also I'll take it. That's awesome. It's kind of weird that he did that, and it's kind I don't know if that was the best way to do it. However, let's all take him up on that. That sounds great. So we should get somebody really cool, but it's also more of a celebration of something really bad not happening.

0:11:23 Andrew: Yeah.

0:11:24 Thomas: But that's kind where we are in this country.

0:11:26 Andrew: Hey, I did the the old O.A. truism like it sucks fighting holding actions, but it sucks worse to lose them. So like the idea that possibly Stephen Breyer was trolling us all along. Right. We we have a high level patron who's got to change their screen name now. Right. That their their name is, you we wish a happy all Stephen Breyers retire now. Right.

0:11:52 Andrew: And you're going to get your wish. Oh, by the way, you're not only going to get your wish but but the resignation letter is, I intend this decision to resign to take effect when the court recesses, uh, for the summer this year, which is typically in late June or early July, assuming that by then my successor has been nominated and confirmed, right?

0:11:31 Thomas: Yep. Yeah. Mm-hmm. I

0:12:14 Andrew: Yeah.

0:12:14 Thomas: Like it. Okay. So we're not stuck in case of some shenanigans, you something crazy happens in the Senate. We're not, he's not committed to having to retire. Smart.

0:12:23 Andrew: So. Yeah, that's that's right. I I want to tell you that those shenanigans, like, I cannot come up with what those shenanigans would be. I'm going to talk about how

0:12:32 Thomas: Well, I could. One of the either mansion or cinema changing parties and being horrible. I mean, it's not likely. I'm just saying it's inconceivable.

0:12:32 Andrew: Uh I wouldn't call that. I'm sorry, I wouldn't call that shenanigans. I would call that, you know, well, No, and the reason I say that is I'm gonna talk about two potential shenanigans that were instantly floated, uh, one in Time magazine, and and the other just sort of on the internet, and uh, there

0:12:42 Thomas: Oh, okay. Yeah. No, you're right. Right, right. Once again, Andrew, I'll save you all a lot of work. If there was anything the Republicans could do, we would have done it when the Republicans were doing this. But with Amy Coney Barrett and, don't you all of them, I guess.

0:13:06 Andrew: You go. So. So. So, first, part of this coming as a super pleasant surprise is that Stephen Breyer just wrote a book called The Authority of the Court, meaning the Supreme Court, and the Peril of Politics. In that book, he says proposals have been made to increase the number of Supreme Court justices. I aim to make those whose reflective instincts may favor significant structural or other similar institutional changes, such as forms of court packing, think long and hard before embodying those changes in law.

0:13:41 Andrew: And yeah, yeah. I changed my view on this. I literally have done that thing.

0:13:23 Thomas: Yeah. Oh, we have actually. Yeah, took Andrew like six years. Yeah. He's

0:13:48 Andrew: Yeah. You can hear me on the David Pakman Show making the case for not packing the court uh in 2017 um so Mr. Justice, I have done so, and then if the public comes to see judges as merely politicians in robes, its confidence in the courts and the rule of law itself can only decline uh

0:14:08 Thomas: Just describing what already exists, but as a cautionary tale, you're like, we're already there, man, we did it, it's done, yeah.

0:14:09 Andrew: Right. Yeah. Yeah. It would be right, Steven Brown, it would be really terrible if we had some kind of incompetent president maybe a game show host uh who took ideological rubes in their 30s, yeah.

0:14:21 Thomas: Did is this the book he intended to send back in a time machine but the time machine failed, because that would explain a lot, like if he meant to send it back to 10 years ago, you'd be like, oh wow, what a prescient book. Book

0:14:26 Andrew: Yeah. It if You sent the time machine back to 1965, maybe, right? Like, I mean, seriously, the the right wing has been complaining about the court not being political enough, um, for, uh, through my parents' lifetimes, right? Like the the criticisms of, uh, Richard Nixon for basically failing to do, uh, what subsequent Republican presidents would do, uh, still read criticisms in print from George H.W. Bush nominating David Souter to the the bench in 1991. And when I say that, I mean, one of the things that was a topic of discussion at my debate with Justin Walker was Justin Walker's constant reassurances when he was in conservative media outlets on Fox News and speaking to fellow conservatives that, quote, quote, Brett Kavanaugh will not go wobbly, end of quote.

0:14:41 Thomas: Yeah, oh.

0:15:33 Andrew: And so, yes, these folks have. By the way, I mean, Justin Walker was like in kindergarten when David Souter was nominated to the court, which is a terrifying thought. There is a long institutional right wing memory of, hey, thinking of the language that Rod Blagojevich used in describing Barack Obama's Senate seat. Right. Like I got this effing thing here and it's effing golden and I'm going to effing take advantage of it. Right. And that's what Republican right wing orchestrators have been agitating their presidents to do since time immemorial, at least since Richard Nixon. So wrote this kind of book and said, I'm definitely not going to retire. And here we are looking at,

0:15:43 Thomas: Yeah. Yeah. Well.

0:16:16 Thomas: I don't know if

0:16:17 Andrew: Oh, he absolutely answered questions in such a way as to suggest that he would not retire as part of a political process, us and and here the Democrats are staring down the barrel of of possibly uh losing one or both houses of of Congress uh in the midterm elections, and and Stephen Breyer has just done the right thing.

0:16:17 Thomas: He said that, he just was really mad. Hmm.

0:16:36 Thomas: But yeah. I I think that was him trying to, sanitize the whole, he's trying to make his whole, his whole book tour and all this bullshit he's been doing, that's been really tiresome, the last, I don't know, year, is him trying to make the claim that something we all know is true isn't true, that the Supreme Court isn't just a political thingy, and that it's actually healthy and it's all fine. And I just think as part of that, he did a bunch of, and I'm not retiring, as a political thinky.

0:16:46 Andrew: Yep.

0:17:02 Thomas: That wasn't exactly the same as him saying, I'm never retiring. You're going to have to pry the whatever, yeah, the gavel from.

0:17:02 Andrew: The court for my cold dead fingers Yeah, right, yep.

0:17:10 Thomas: But yes, anyway, good news. I'm so glad he made the right decision. Are are you gonna go like four for four in predicting the next uh Supreme Court justices?

0:17:12 Andrew: Yep. So, yeah, a lot of folks have asked. It was super easy to predict the Trump nominees because I would just ask myself, who would Leonard Leo nominate? And that was it.

0:17:18 Thomas: Oh. Good point. Yeah. Although, I gotta take credit, because there was one that I got right that you didn't, because I was like, no, he'll do the most evil thing, and you're like, I think he'll do the second most evil things, and I think you, I think I was right, is that Amy Coney, or no?

0:17:35 Andrew: Yeah, that it was Amy Coney Barrett. A hundred percent.

0:17:38 Thomas: Yeah. Yeah. But as a show, we're really good at these predictions, so let's nail it, oh.

0:17:39 Andrew: Um. So as you point out um on the campaign trail uh Biden promised uh to nominate an African-American woman uh to the Supreme Court um by the way, like, that has brought the racists out in force um with respect to that, and uh, you know, it's doubly galling when they uh quote Martin Luther King, you know, why aren't we judging them by the content of it. Yeah. And I have already gone over the numbers, I, I will tell you, um, as part of the, you comings and goings segment that I do on Clean Up on All 45, the degree to which Joe Biden's nominees have been genuinely diverse up and down the judiciary, up and down the executive branch, is, it's really inspiring, it's, and it's inspiring in a way that I would not have expected from, you know, a president who's a 512 year old white guy. Right.

0:17:55 Thomas: Yeah.

0:18:21 Thomas: Add Add to that

0:18:34 Andrew: Not.

0:18:35 Thomas: The record-breaking speed, too. It finally feels like we're fighting fire with fire in terms of the federal judiciary, doesn't it? It finally feel like we are late to the party, we brought the knife to the gunfight, we got shot several times, but we sort of are alive and now we have a gun. Now we also have a gut.

0:18:36 Andrew: Yeah. Yep.

0:18:53 Andrew: Who who Would have thought that our secret weapon would have been Joe Biden? Um, all right. But I'm gonna go through what, uh, and this is not this a, uh, a hot take based on that. Um, my instant reaction was, uh, Judge Katanji Brown Jackson, uh, who was elevated to the D.C. circuit, uh, just last year. Um, a rock star, uh, unimpeachably talented, uh, no doubt about it, well-qualified, uh, we, you know, we'll earn a well-qualified rating from the ABA. Um,

0:18:59 Thomas: But does she know what a motion in lemonade is, if I were to ask that?

0:19:26 Andrew: Not a Justin or a Cory, I will say that. Um, that, just sort of feels like, uh, the front runner choice. Um, I think it will come down to either Katanji Brown Jackson or the youngest person who has been floated on the rumored lists, Leandra Kruger, uh, who is 45, she has been on the, I know, it should be Morgan, Morgan Stringer, right.

0:19:28 Thomas: Yeah, Ooh, I like it. I already like it already. Not young enough for me on this court. Yeah. Can we do like the Gattaca thing where we genetically know how long they're going to live? That'll be the next of this battle as we start genetically determining who's actually going to live to be 105.

0:20:02 Andrew: I want three clones of Ruth Badger Ginsberg in constant rotation, yeah, right, exactly, on the Supreme Court at all time. Um, so, I'm gonna make two predictions here, so I think, uh, Brown Jackson, uh, and, uh, Leandra Kruger, to talk a little bit about her in a minute, it, um, but I want to frame, so I think it will come down to those two, and I think, uh, if, as it appears to be leaning Kruger, what you will see is criticism on the left of her not being the leftmost candidate.

0:20:04 Thomas: Oh, yeah? An old one, a middle one, and a young one. Yeah, totally.

0:20:34 Andrew: Based

0:20:33 Thomas: Hmm. Based on what? What is that based on?

0:20:35 Andrew: On, um, the, position that she has occupied, preoccupied, on the California State Supreme Court. Right, so if she is in fact the nominee, or it looks like she's going to be, then I, you could, you know, we will do a deep dive on her jurisprudence. Um, but I will tell you, uh, expect that it will be classified as sort of a, well, do you want the most liberal of the two picks, which would be Jackson, or do you want the younger of the, the two picks, which would be Kruger, uh, either way, right, I mean, you cannot measure the distance apart that even, uh, the swing vote on the California Supreme Court, which by the way is a very, very liberal court, Uh, is from the, you know, current composition of the Supreme Court.

So, I, I don't think, I think both would be eminently qualified, I think I both will be fine in terms of, you know, Democrats. Now, here I'm assuring, you know, my fellow liberals that Leandra Kruger will not go wobbly. Think that both are eminently qualified. Both will not disappoint as Supreme Court nominees. But, you know, liberals, we love to eat our own. So,

0:20:41 Thomas: Ah, yeah. Yeah. Well,

0:21:45 Andrew: No.

0:21:46 Thomas: Here's what I'll say about that. I don't know what calculation will be made with, you know, Manchin, or if anybody wants to be a troublemaker here, Manchin, or Sinema. It seems that they have not at all done that with the federal judiciary, but also people don't pay attention to that as much. So, you know, I could imagine that this will be a way more headline grabbing thingy, and someone like Sinema or Manchin could want to make hay with that, or whatever.

0:22:10 Andrew: Manchin and Sinema both voted were were the key votes to advance Ketanji Brown Jackson to the D.C. circuit. So be a real time again. Yeah. Never underestimate the Kirsten Sinema of Kirstjen Sinema. Right.

0:22:18 Thomas: Yep. Yep, but again, Sinema also voted to get to bypass the filribuster when it came to raising the debt ceiling, but not voting rights on Martin Luther King Day. So just, just have, No, I hear you. I think the odds are pretty good that they'll go with it. But the point I was going to make is as liberals, as people on the left, as Democrats, I really don't think we ought to fuss too much about a couple points left, you know, or center on the third justice. You know what I mean? If this were the swing justice, it would make a big difference how left they are. This is somebody who's going to write either a normal dissent or a slightly more inflammatory dissent is what their role is. So I'm just saying we shouldn't ourselves too much over that decision. Now, maybe decades from now, this person could be a swing justice of some kind and then it would make a difference. But who knows?

0:22:52 Andrew: Yep. Yeah.

0:23:14 Andrew: When we heard when we are back to having a sane Supreme Court. Yeah. No, I agree with all of that. And the way to think about it is right. Right. From and again, and I just want to emphasize, I have read three or four of her opinions so far. Right. So, you know, it is incredibly superficial that not that the notice came last night. I texted you. You were super excited. You I was prepping for the show. When we do a deep dive, I will feel more confident that I have a full handle on her jurisprudence. But think I have a good snapshot. And the way to think about it is, is she more of an Elena Kagan than a Ruth Bader Ginsburg, right? If you think about what we've been getting on the Supreme Court as of late, right, that's like choosing between two exquisite desserts after having, you know, a meal of dog shit for the last you

0:23:45 Thomas: Yeah.

0:24:04 Thomas: And again, just because of the numbers, the marginal, we'll say, increase in leftism or something will function not at all in any way, shape or form for at least decades. You know, Like it literally will not make it. I mean, maybe you could get some weird alignment at some point where this there would be a 5-4 and it would, I can't, it's hard to fathom what that decision would be, though. You know, I just really don't see this mattering that much.

0:24:07 Andrew: Yeah. Yep.

0:24:32 Thomas: And if anything, maybe You invest in the longer potential, you tenure that. I think it's highly likely the longer tenure possibility would make more of a difference than whatever this marginal difference in leftism would be.

0:24:31 Andrew: It is it is I I agree Yep.

0:24:45 Andrew: And, and let's go back to, uh, notwithstanding what racist bigots are saying, um, having the perspective of a woman of color on the court, uh, is a thing that the Supreme Court needs. Right. The Supreme Court desperately needs the perspective of somebody who's LGBTQ. Like, it is. These are the kind of background and lived experiences that you bring to understanding cases, the kinds of cases the court hears. It's really astonishing that, we are hitting that point now in twenty twenty twenty two.

0:25:17 Thomas: I mean, that's why if Biden calls me to do it, I'm going to say no. I think I'm gonna say no, sir. Thank you, Mr. President. But I think you'd be better off with somebody else on the Supreme Court. That's my official position.

0:25:17 Andrew: Yeah, I will join you. I will join you in that pledge. If asked, I shall decline. If nominated, I shall abdicate.

0:25:34 Thomas: Yeah, I mean I'll take a federal spot. Don't get me wrong, Joe, if you're listening.

0:25:35 Andrew: Yeah. Yeah, oh yeah, DC Circuit, yeah, you and me, there we go. Really quickly, I want to talk about bad, right, because everybody wanted to write the Republicans can block this, including, guy you writing for Time, who So hopefully we'll learn the perils of trying to be first as opposed to trying to be right there. There have been two things that have been circulated and both are just wrong as a matter of procedure. So, number one, what was circulated was the Republicans can just refuse to have a quorum and block it that way. No, they can't.

0:25:48 Thomas: Yeah. Yeah.

0:26:08 Thomas: Weird that we didn't do that last time then.

0:26:12 Andrew: And here's why they can't, because you believe it is correct that the vice president does not cast a vote for a quorum. In other words, you need 51 senators to constitute a quorum. So OK, that's, I think, the gravamen for where the initial argument comes down. But it's, it's ignoring the fact that a quorm is presumed under the Senate rules unless someone makes an objection. Objection, so Republicans have two choices, they can either all hold out, at which point no one will make an objection and a quorum will be presumed and things will be fine, or they can send somebody to go show up and make an rejection, but then there will be 51 people in the room, so, uh, uh, yeah, yeah. Uh, that, uh, no, because what you would just say is, point uh of order to the chair. What was that last piece of business?

0:26:58 Thomas: What about opening the door, shouting, is there a quorum? And then running out the door? No, but seriously, what would that work? Said that? Yeah. Yeah.

0:27:16 Andrew: Right. Yeah. And the chair would then say, uh yeah, we we didn't quite hear that. Uh, who, who was it who rose to make that point and then you know, Ted Cruz from somewhere in the hallway

0:27:20 Thomas: I didn't hear anything. Okay. Leave a tape recorder. Do the old like sitcom thing where they're pretending to be in bed, you know, like Ted Cruz pretends to be on his his chair with like a, it's a dummy with a tape record.

0:27:36 Andrew: It's a Ferris Bueller's Day Off yeah right so we're

0:27:37 Thomas: Yeah, there you go. So no shenanigans like that are possible.

0:27:41 Andrew: Okay no shenanigans on the quorum, and then the truly dumb time piece said, uh, well, here's the thing, that the Judiciary Committee could stall because they have an equal number of Republicans and Democrats because we're split 50-50, and then that would deadlock, uh, and that would it all be true if not for the power sharing arrangement that we explained as prescient and smart even while left-wingers were criticizing it way back in January of 2021. So, uh, send a big thank you note

0:28:00 Thomas: The deal. Yeah.

0:28:13 Thomas: Boy, Andrew, it is almost like we cover things really well and are not just trying to make ideological points in our analysis. It's almost like that.

0:28:16 Andrew: It it it you so send a

0:28:22 Thomas: We

0:28:22 Andrew: A big, big thank you note to Majority Leader Chuck Schumer for having the prescience in 2021 to sit down with Mitch McConnell and negotiate an agreement on the same terms as the Republicans got in 2001 that allows us to advance stuff out of deadlock committees. So, so we're going to be fine and it's going to be fine. And I am really, really looking forward to being able to do a happy, wonderful deep dive on the jurisprudence of whomever our next Supreme Court nominee will be.

0:28:55 Thomas: Hadn't worked so hard, I know I say it all the Time, but it's worth repeating because all we do these days is just feel crappy for how we can't get everything we want done. And you know, I get that. I feel crappy for that too. But imagine if we had one Georgia and this show, this audience raised so much money for those elections. And maybe it was the difference. Honestly, listeners to this show could be the difference in us getting the Supreme Court seat or not. It's really important that we did that. Please take that as a sign of how much that effort mattered and to keep at it.

0:29:31 Andrew: But absolutely. Absolutely.

0:29:34 Thomas: Show is brought you by Athletic Green. Look, I am not very good at breakfast the that nobody. You know, you get the like sizzling eggs and all the stuff takes an hour. I'm terrible at that. I don't have time. And I'll be honest, what I said to you just then was a lie. I probably do have time, I just don't do it. So instead, if you're like me and you either don't have time or you just don'T do it in the morning, why don't you try Athletic Greens? I started taking Athletic Green because like I said, I just eat like a bowl of cereal in the moring. I just DON'T. I don't have the energy in the morning to do it. So adding athletic greens adds a whole bunch of stuff that might do my body some good takes zero time and taste great. Doesn't taste like a gross health thing. Tastes nice. Mild tropical taste. So what is athletic greens? Well, in one scoop of athletic greens, you're getting 75 high quality vitamins, minerals, minerals, probiotics, and adaptogens.

0:30:26 Thomas: I don't even know what those are, but they sound good. I want to adapt, I think, in general. So that's good. The special blend of ingredients supports gut health, your nervous system, your immune system, you're energy, recovery, focus, all that stuff. You know, tons of people take some sort of multivitamin, and it's important to choose one with high quality ingredients that your body will actually absorb. Athletic Greens is far cheaper than getting all the different supplements yourself. In fact, interesting, this Athletic Greens was created when the founder experienced a lot of gut health issues shoes and ended up on a complicated supplement routine to recover. It cost him $100 a day. So, he created Athletic Greens after experiencing how difficult it was to create routine on optimal his own. So, right now, it's time to reclaim your health and arm your immune system with convenient daily nutrition, especially heading into the flu and cold season.

0:31:15 Thomas: It's just one scoop in a cup of water every day. That's it. No need for a million different pills and supplements to look out for your health. To make it easy, Athletic Greens is going to give you a free one-year supply of immune-supporting vitamin D and five free travel packs with your first purchase. All you have to do is visit visit athleticgreens.com slash opening. Again, that's athleticgrees.com slash opening to take ownership your over health and pick up the ultimate daily nutritional insurance. That's athleticgears.com slash opening it. All right, next story. I love this. Of crap. Another media story that was just very, very interesting that people wanted to hear about. There's a case where at-will employees were being forced to nicht quit, even though you would think at-well, it's right there in the name. They were being prevented from quitting.

0:32:04 Andrew: How can you have a guilty bystander?

0:32:06 Thomas: A guilty fantastic Seinfeld. And a lot of people asked us about this. So what happened here?

0:32:12 Andrew: This is an astonishing story to me. I think we may have gotten more emails, social media requests to cover the story that maybe anything in recent memory. Ton of hysteria, news articles using words like slavery, people talking about the judge. So, going to explain everything that happened, but I want to start by challenging the premise. OK, is the idea that you could not imagine a circumstance under which an at will employee would be required by the court via injunction to do things, even though technically speaking, they're free to leave their job. This Right. Hypothetical is super easy to imagine.

0:32:57 Andrew: Right. Imagine, I don't know, Citibank hires, you know, Dustin over here to run their IT department. Dustin Right? Runs the IT department and whatever, and it's fine, but it kind of sucks working for Citibink. And eventually, like Google approaches him, and they're going to offer him, three you times his salary. And, you know, one day Dustin is just gets up and leaves and is like, OK, I'm an Atwell employee. Citibank, this has been great, but peace, I'm out of here, I'm going to go work for Google. And then let's suppose Citibink discovers that the only person who knows how to turn on the computer software that enables people to access their bank accounts is Dustin. Right Well, Citibank is going to go into court, and they are 100 percent going to get an injunction. Dustin is like, screw you guys.

0:33:43 Andrew: I'm out of here, uh oh, I'm the only one with the password, oh well, that's too bad, I'm, I'm sure you'll figure it out eventually, right? No, Citibink will go into court and get an injection that will force Dustin to give them the password, turn on the computer software, and maybe even train like the new guy they've hired how to bring up that particular piece of software. Well

0:34:04 Thomas: That's interesting because, you know, it sort of strikes me as like the cruel door of unfettered capitalism, I guess, only swings one way. Like if you're going to screw over an employee, that's fine. It's capitalism. It's at will. But if the company might have a problem, then all of a sudden it's not just letter of the law. All of a suddenly it's just like, well, the contract specifies it's a, you get to be like, yeah, but we're a big company and we hate this. So come work over here. It's interesting.

0:34:28 Andrew: So I don't disagree with I

0:34:31 Thomas: I'm not saying it's wrong. It's just, you know, we're

0:34:32 Andrew: Donno I I I don't disagree with that take, uh, in in one sense in terms of how power is allocated, uh, but I but I oh I would push back in in another sense, which is the injunctive relief standards that we're talking about here are the interests of the public. Right, like the the justification here would not be, oh, City Bank would have to pay, you know, right, like that justification would be millions of consumers would be unable to access their bank accounts

0:34:56 Thomas: Going be short staffed. Yeah. Okay. Fair enough. So if you if you presented the court with the argument like, you know, this is just sucks for us at Citibank. We're, you Know, we have to put some weekends in that's not going to get you the injunction.

0:35:04 Andrew: Yeah. No.

0:35:14 Thomas: Okay, that's fair enough.

0:35:13 Andrew: Um, and and and in fact, Okay, this is, and I want to be very, very clear, this injunction was handed down on a Friday and reversed on a Monday. Um, and

0:35:24 Thomas: Yeah. And in that tiny amount of time, we had more emails than anything. That's interesting.

0:35:25 Andrew: Yep. Uh, and I and can explain exactly how that happened, um, but so first I want to characterize it in the terms most favorable to Theta Care. Okay, and Theta Care is the evil operator in all of this. They're the ones who went to court and they got the TRO, and it got got reversed on Monday. Um, Data Care's argument on Friday was this: we are a level two trauma center, and this other company called Ascension that owns a hospital called Saint Elizabeth Hospital, that's seven miles away, uh, went and poached our radiology team. Saint Elisabeth's is a level three trauma. And so the problem is, well, the lower levels are worse.

0:36:10 Thomas: I need some more experience points. Sorry. I gotta go. Yeah.

0:36:16 Andrew: The lower levels are better, right? So, yeah, Yeah. So, right. So the idea is that potential patients now, having lost our radiology team, we might be in danger of losing our level two certification. And that means that the kind of patients that need level two trauma centers and not a level three center would now have to travel much greater distances. And that would be super bad for those

0:36:17 Thomas: Oh, oh, they're better. Oh, okay.

0:36:48 Thomas: Mm

0:36:48 Andrew: Patients, right? Because they're undergoing severe trauma. And so what we want is a temporary restraining order that says, hey, radiology team, don't leave while we figure this out. And that's what they got on Friday. And again, I'm going to explain how that got unwound, uh, but but I want to make the case that that that it was not an unreasonable request, and maybe not even an unreasonable grant, right? Like, the whole purpose of a temporary restraining order is to preserve the status quo, is to say, okay, you know what, you're right, this seems like a situation in which severely ill people might suffer a, an undue harm. And we think that outweighs a day's worth of employees getting to go where they want to go.

0:36:49 Thomas: Hmm. Right. Mm hmm, right.

0:37:34 Andrew: Now, over the weekend, a bunch of information, additional information was adduced. And the other company, Ascension, went back into court on Monday and successfully got the TRO dissolved and said there's not going to be any preliminary injunction because they introduced some additional facts. Okay, biggest fact that I saw in exactly zero of the articles that were full of outrage from Friday, uh, is that, uh, this covered seven people. Like, the headlines I was, I was reading, I was thinking hundreds, thousands of people were, you know, being held to their contract, right? No. So what happened was, um, and again, Ascension denies that they secretly poached these folks. I think they're probably lying, right.

0:38:07 Thomas: Yeah. Yeah.

0:38:21 Andrew: They're they're possibly lying, right. The idea is they say, look, we posted these jobs publicly, uh, the first person who came in worked for ThetaCare, they said,

0:38:30 Thomas: Oh, and then they kind of tell their friends sort of thing. Yeah, you know, it happens. I've worked working in the state. Actually, that happens all the time. We have these different teams and different, you know, units and somebody leaves and like, yeah, I know. I know some good workers who we could also get. And then he poached everybody.

0:38:31 Andrew: Yeah. And they said, and then eventually, right, the whole team exactly, right, yeah, yeah, and And so I think they probably did poach, right? But it doesn't, again, shouldn't matter at W-2 employees. We're talking about four radiology techs and three nurses, right? So no doctors. We're taking about the supporting team, the radiology team. And then point out that not only are they going to a facility that is less than seven miles away, they're both in the, what I'm sure is the sprawling metropolis of, Neenah, Wisconsin. But in addition to that, there are level two trauma centers that are a 20 minute drive or five minute helicopter ride away in Green Bay. Right.

So the the St. Elizabeth's argument was, hey, we're right around the corner, the same team that works with the same doctors will now be doing that work with us, as opposed to with them, so that doesn't really matter. The level two versus level three trauma distinction comes into play after they've done their radiology work, and it's not clear that ThetaCare is going to lose its certification. And by the way, even if they did, the patients, you could drive them in an ambulance to Green Bay if somehow they were overstocked, or, uh, airlift them, a five minute helicopter run. Um, and so, on the basis of all of that evidence, the court said, well, you know what, now we think probably the public's interest is not sufficient to, uh, override the free market, market concerns of these

0:38:52 Thomas: Yeah right right.

0:40:20 Andrew: Seven people to switch and quit their jobs at ThetaCare and start up their their new jobs at St. Elizabeth. And they were supposed to do that on Monday. I guess they lost that Monday's worth of being in on. It's my first day. I mean, you know, they were probably just going to, you know, get the employee handbook and, you you know, do some, do some training. Maybe they now have to had to do that on Tuesday. But they lost at most part of a day in the scope of doing that. So that that's how that happened. But an awful lot didn't make it into the stories. So.

0:40:56 Thomas: Yeah yeah it's it must you never know with these things with, with how huge the news ecosystem is. It's weird when one of these things gets shared with a spin on it, you know, and you or I don't necessarily follow whoever that person on Twitter is or who, you Know, whoever the like purveyor of that thing is. And then we hear from a bunch of people who are seeing it with a slant and it's, it's interesting. It'S just, it'S just an interesting phenomenon. You know,

0:41:22 Andrew: Well, and what happened was people said, you know. On Friday, on Saturday, you weigh in, comment, describe. And and I could not find I can pull up the case number Because this is a state court in Wisconsin. I can pull up the case number. I can see the documents, the title of the documents that are filed. But when I click on it, it doesn't pull up The underlying document itself. Right. So I could not find the initial temporary restraining order that was entered. Ultimately, what happened was because of the tempest, there were folks covering covering the Monday hearing in the news, who then, you know, made photographic copies of the filings. I have uploaded the Ascension's brief, that's who owns St.

0:42:11 Andrew: Elizabeth Hospital, to our, it's going to be linked in the show notes, but it's now part of our document collection. So, you know, once I finally got the document, I could piece I could piece together what was going on. But this is why, you know, we we try not to have an opinion until I can figure out exactly what the legal documents are. Love them.

0:42:29 Thomas: Documents, people, he needs documents, Andrew documents.

0:42:35 Andrew: That's a perfect transition to a story in which there are no documents.

0:42:39 Thomas: Uh, great. So we're done with it then. There's no, nothing to cover. No, this is something we, have we to talk about. I re I Requested this. I'm sad. There aren't documents. I'M SAD. There doesn't seem to be any transcript, just some amount of reporting. This is Avenatti versus Stormy Daniels, uh, Avenatti, Michael Avenatti hopeful, who I this show called Avenatti as a scumbag quite early. We're proud of that. And in continuing that coverage, this is the case of Stormy Daniels suing Avenatti, right, to try to get some of the money back that he built her out of. And because Avenatti is representing himself because he's a lawyer, we get some personal Avenatti cross-examining Stormy Daniels, and I just wish we had the tape. I'm curious how this went, but what can you tell us? Oh.

0:42:44 Andrew: Documents. Yeah.

0:43:26 Andrew: So. A couple of things, the, the first is this is actually a criminal case against Avenatti in New York and then

0:43:33 Thomas: I thought it was her civil case. Oh, I'm sorry.

0:43:33 Andrew: Oh No.

0:43:35 Thomas: Gotcha.

0:43:35 Andrew: No, and and and not only, uh, which case is this, but which criminal Avenatti case alleging fraud against his former clients is Is this there? There are at least three that, that I know of, and potentially more. So let's unpack that. Two years ago, Avenatti was indicted in New York for shaking down Nike, and he got two and a half years for that. Although given COVID, he served most of that under house arrest, home detention. And may infer that this was not a particularly onerous, it kind of reminds me of the little trial that we talk about in the recent Lamb, where Al Pacino and Craig T. Nelson are arguing, and then there's a farcical trial taking place below them. Seemed a little unfair. But anyway, like, that was super bad, what Avenatti did. Right. Like, that was Avenatti

0:43:36 Thomas: Yeah. Yeah. It's very Trumpian. Yeah yeah right

0:44:30 Andrew: Met with Nike under the pretense of representing an amateur high school basketball team that Nike pulled its seventy two thousand dollar sponsorship from. Right. And Avenatti said the coach has information that will make you look real, real bad, Nike. And presumably that was, you paying college athletes right in violation of the various NCAA restrictions. And so Avenatti goes in and says, you agree to settle with my client, I'm going to take $10 billion off your market cap releasing all of these details. And I will tell you, leveraging bad documents against a client is a time-honored plaintiff's tactic, right?

That's not in and of itself the reason that Avenatti was subject to criminal prosecution here. Um, it was rather the, the terms of the deal that he proposed were the real problem, right? It was, hey, Nike, you pay the basketball team one and a half million dollars, and then I also want you to have me, and I am not making this up, Mark Garagos, celebrity lawyer, Mark Garragos, uh, come in, and we're going to do, uh, an internal investigation to make sure this never happens again. By the way, we estimate that that internal investigation is going to cost 25 million

0:44:53 Thomas: Yeah or My name isn't defendant number. Yeah.

0:45:58 Andrew: Dollars, uh, and, and again, this is on the record, um, 12.5 million, half of it is to be paid up front and deemed, quote, earned when paid, right? So, uh, yeah, this investigation was, I want me and Mark Garagos, you know, for you to write us a check for

0:46:14 Thomas: I mean, it's a shakedown, as you said. It is curious. I didn't realize that the first part of that was somehow okay. It was okay to say like, okay.

0:46:14 Andrew: Yeah right, I don't want, want to say that it's okay. I want to say that, that it occupies a gray territory, to say, right? I've done this a lot, to say, okay, this document has come up in discovery, and I think you want to think about whether you want to go to trial and have this document be released to the world, right.

0:46:27 Thomas: Yeah.

0:46:41 Thomas: Fair.

0:46:41 Andrew: So that's what I mean by gray area, right? So, to, to just say, we have a lot of witness testimony that we would put on if we went to trial that would show that Nike is paying money to college athletes, and that would be terrible for you and terrible for them, so why not, don't make us do that? Not.

0:47:00 Thomas: So you can do that to try to get a settlement Yeah, okay, but that's the part where you're like, "and also I am" going to personally benefit from this.

0:47:02 Andrew: Yes, exactly right. Right. Yeah. And also, I'm going to head an internal investigation to make sure this doesn't happen again. And then, and I haven't gotten to the, the true capper on that. Um, when Nike's lawyers said, I don't know that we need an internal investigation, Havanati on tape said, well, you could just pay me the 22 and a half million. So, uh, that's a real

0:47:09 Thomas: Yeah oh all right future president. Michael, we need a Trump to fight check out. It was so dumb. Oh, it was so dumb. I'm glad we didn't fall for that.

0:47:31 Andrew: Yeah. Yeah. So that's not that is not this case. He was convicted, served two and a half years, again, mostly home detention. It is also not the California embezzlement case. This was also in federal court, and the allegations there were that he took settlements meant for clients and spent them on himself. Um, that And in that case, Avenatti represented himself from the very beginning, and, and this is the, the connection here on the Stormy Daniels part. Um, and the key witness in the California case, uh, was a former office manager for his law firm, Judy, uh, Regnier, okay, I'm sure I'm mispronouncing like that, but r-e-g-n-i-e r um, maybe Renoir, I don't

0:47:53 Thomas: This guy sucks.

0:48:19 Andrew: Know, there

0:48:19 Thomas: I've I've known a Regnier, and it's all how the family decides to, you know, could be Renier, yeah, who knows.

0:48:24 Andrew: So, uh, Judy, right, was there to testify about payments coming in, payments going out, right? Again, remember, this is the allegation, was settlements came in, particularly for, like, old people, and Michael Avenatti, uh, skimmed money off the top, told old people that, oh, the settlements haven't come in yet, just really scumbaggery stuff. Avenatti represented himself, his opening statement was, this case is about math, this is about how you calculate what a client is due after their settlement is received, um, and, uh, the, key issue that Michael Avenatti, again, um, apparently not without some, some talent as an actual lawyer, was able to elicit on cross-examination from Judy was that the firm used a particular piece of software called Tax and Bookkeeping Solutions.

I don't know if you've ever seen that before. Tabs was what they called it. Yep. And prosecutors had not given him the tabs data, the prosecutor said, look, this is really the first time you've asked about it, and he said, right, well, you know, it came up in cross-examination, how am I going to impeach a witness that says the tabs data says, uh, I held on to all of this money, if you haven't given it to me.

And, uh, and the judge in that case declared a mistrial, uh, and ordered, uh, the prosecutors to, to turn that information over to Michael Avenatti, which, um, they, uh, are in the process of doing. And, and that, that case will be retried. Right. So Avenatti, now, he's feeling like, hey, man, I, I got myself a mistrial, I'm, I'm king of the world. And that brings us back to New York, where Avenatti has been indicted for defrauding his clients, including Stormy Daniels.

0:48:25 Thomas: Uh nope yeah

0:50:09 Andrew: And here, the principal allegations with respect to Stormy Daniels are that he was funneling everything through his office, and she got several advances for her book. And Avenatti would say to her things like, oh, no, that hasn't come in yet, they're just super slow with giving you your advances. And he had, in fact, taken the money and spent it already, right? Um, and so, uh, stole hundreds of thousands of dollars from her book advance without her knowledge, while pretending it hadn't gotten paid. Um, Stormy, as up through and including when we were recording this show, very sadly, uh, Stormy Daniels was still testifying on direct, it went two days longer than people expected, and she is a spectacularly good witness.

Again, again, this is federal court, so no audio, so I'm relying on transcripts, but the transcripts are fantastic, right? Like set up questions like, didn't you have Michael Avenatti sign the contract on your behalf? You know, he was your lawyer, he Was your agent, you know, why didn't You have him sign it on your behalf, it's just like, because I know how to sign my own name, and I sign all my own stuff, and right. What that does. So you laugh about it. But there are subsequent fake contracts that Michael Avenatti ostensibly signed on

0:50:28 Thomas: Yeah she's great.

0:51:22 Thomas: Oh gotcha

0:51:31 Andrew: Her behalf. And you just remember Stormy Daniels saying, I don't need my lawyer to sign my stuff for I sign my own stuff. And you're like, yep. Yes, she does. Like it's.

0:51:32 Thomas: Yeah so He's trying to claim, like, "oh no, she had me do these things" for her. Yeah.

0:51:44 Andrew: Yeah, right. That just, you know, and and you can see in Avenatti's mind, right? Yeah. You know, right, the story I'm going to be is not a sophisticated porn star. Like, of course, the lawyer signs everything for her. Then they went through her text messages. So, you this concerned an instant where, yet again, Avenatti had set up crowdfunding ostensibly for her legal fees, right, using her name. And, you know, leveraging the goodwill that he enjoyed at the time from from the left of, you know, being the guy who was going to bring down Donald Trump. And so Stormy texted him to say, I'm tired of finding shit out on Twitter, which, by the way, really good complaint about your lawyer. Right.

0:51:45 Thomas: Right right yeah right

0:52:26 Andrew: And then he texted back, "look, I get it, but we should figure out a soft landing, because if you attack me publicly, it'll look bad for you" to which Stormy Daniels texted back, "is that a threat?" Um, and just, you know, so sadly, yeah

0:52:36 Thomas: Can I ask you a legal question, how much does that matter, you know, you always see that, like, "is that a threat," and then the person will always be like, "no, no, it's not a threat," it's just a, you know, does that all have any legal impact in this trial, like whether that question and his answer to it

0:53:01 Andrew: So It, in my view, it the effect that it has is in evaluating the witness testimony, right? So when you're trying to figure out, like like, who's telling the truth about which part here? You know, when somebody has behaved, when someone's communications are perfectly consistent with somebody who, you know, feels like they're being shaken down, right? It's harder to, you know, come back and say, oh, no, no, like, you now, I'm going to credit this, you know, this additional, you the opposing view, you're like, well, it sure didn't seem that way at the time, you know, so that's how I would evaluate that. So, uh, sadly, uh, the news gods conspired to dump a bunch of great stories on us this week. Um, we will have to wait until after this record to know, uh, the uh breakdown between uh Avenatti cross-examining Stormy Daniels. I thought that that background would help. Like, I'm not sure that it was even the Stormy Daniels part that was the motivator here, because I will tell you, the witness he did get to cross- examine in this trial was Judy Regnier, right?

And that was—the moment that he fired his public defenders and said, no, I want to represent present myself, was not as uh the prosecutors were about to call Stormy Daniels, it was one witness before, it was when they were aboutto call Judy. So I think, right, he probably also wants a shot at Stormy.

0:53:22 Thomas: Yeah mm-hmm gotcha

0:54:31 Andrew: But uh I think it was, hey, I I was able to run circles around Judy last time, I bet I can do it again.

0:54:37 Thomas: But are you saying we do, we will get get transcripts?

0:54:40 Andrew: No. We will get, uh, because it's federal court, well, oh.

0:54:44 Thomas: This it? Sounds, it seemed like you had something from before.

0:54:47 Andrew: Yeah. No, what I have is people there watching the trial. Reporting.

0:54:47 Thomas: Ah. Okay. I I thought. You had. Said. There were, okay, my mistake. So we.

0:54:52 Andrew: On. It. Yeah. We.

0:54:54 Thomas: Won't probably get transcript, but we will get some reporting.

0:54:57 Andrew: We will get reporting. There will be a federal transcript that's going to take you know forever to get, uh, to get ordered. Uh, and what I was saying is there is no, unlike many state courts, right, this is not televised. So, yeah.

0:55:09 Thomas: Yeah. Couldn't. Happen to a nicer guy. I.

0:55:10 Andrew: Yeah. Uh. Me.

0:55:13 Thomas: Hope he loses his, you all seven of the cases against him.

0:55:17 Clip: And thank you, Let's go!

0:55:18 Thomas: Now it's time to thank our new patrons at patreon.com/law. Hopefully they're enjoying that Law'd Awful Movies as we speak, uh, it's a lot of fun, don't miss it. Uh, why don't you start us off, Andrew?

0:55:28 Andrew: New patrons are the best patrons, right? So, thank, thank you to Robert Pixley. I'm fast at sex.

0:55:38 Andrew: That's so good. Cake Meister, Margaret D. John, Jill, Jill Tomkins, to we're no stranger to love, you know the rules and so do I, to Lauren Brown, Patrick Goulding, Ronald Rumbaugh, welcome back to Brian Beccia, and thank you to Canadian James in Idaho. Well, that, that is a Nice confluence Of of Stuff

0:55:56 Thomas: God, what happened? Did you fall down the map a little bit? Get, get back up and get out of there.

0:55:58 Andrew: Yeah. Uh, Welcome aboard, all of you. Thank you so much.

0:56:04 Thomas: The And thank you to the, the CDC says take legal advice for a podcast, not sure if that's a repeat or someone else had the same joke. Could be either, really. Heather Tipton, Karis Ford, the Quantum Cueball, Nic Duhamel, get legal advice from a podcast, you're not the boss of me, Jon Langdon, advice, you got to fight for your right to ex parte. That's funny. At Left In TN on the Twitters, Bill Gates no longer has any connection to Microsoft at all. Yeah, no, that's kind of a, Andrew was wrong in in new patron form, Thomas is right about that, and Sammi Scoop, thank you new patrons,

0:56:28 Andrew: Is Good, Bill Gates has no Microsoft stock, wow, that would So That Would surprise Me So, uh

0:56:47 Thomas: Would Surprise Me any Connection But kind, I haven't checked that, but like I don't think he's working on their behalf at all. You know what I mean? Like any, any more than, yeah.

0:56:54 Andrew: No, I I Don't Think that's what I said, I think I said that, uh, it's probably still in his financial interest for Microsoft to do well. But in

0:57:02 Thomas: Owns 1.3% of Microsoft. That's interesting. That is low percent. I mean, it is still, I think it still adds up to a lot of money, but

0:57:09 Andrew: I Will take 1.3% of Microsoft. I just want to make known. That If we have a listener, yeah, there yeah, bonus clarification.

0:57:13 Thomas: Yeah. Yeah. If he wants to hand it to me. Right. Well, a little bonus. I won't say Andrew is wrong, but some clarifications notifications in the uh in the in the patron things

0:57:25 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:57:31 Thomas: Now it's time for an exam that Avenatti would not pass. Thomas takes the ethics exam.

0:57:37 Andrew: Somebody wrote in and suggested Thomas tries to be ethical as still being at TTTB. So I love it.

0:57:44 Thomas: Oh, T3BE. Oh, I love it. Thomas tries to be ethical. Yeah, T2BE. Be. I guess this is question number three, and we're kind of going to play this by ear in terms of how many of these things I need to answer. But here it goes. Let's see if I can outdo Michael Avenatti by a landslide.

0:58:01 Andrew: An attorney represented a company that produces chemical products. Some of the waste products of the company's manufacturing processes are highly toxic and are reasonably certain to cause substantial bodily harm if disposed of improperly. The president of the company recently informed the attorney that a new employee had mistakenly disposed of the waste products in the ground behind the company plant, an area that is part of the source of the city's water supply. The attorney advised the president that the company could be civilly and criminally liable for negligence in lawsuits brought by persons harmed by the waste products. All right, that sounds good. The attorney revised the president to immediately report the problem to city authorities. Fearful of adverse publicity, the president declined to do so.

0:58:44 Thomas: Oh, geez.

0:58:45 Andrew: The attorney further advised the President that she believed the president's decision was immoral. The president continued to decline to report the matter. The attorney then informed the president that she was withdrawing from the representation and would inform the authorities herself. Immediately after withdrawing, the attorney reported the company's conduct to the authorities. Is the attorney subject to discipline?

0:59:06 Andrew: A. Yes, because the attorney received the information in confidence and was not permitted to reveal the information without the company's consent. B. Yes, because the company conduct was not intentional. C. No, because the attorney reasonably believed that the president was pursuing an imprudent and immoral course of conduct. Or D. No because the attorney reasonably believed the company disposal of the waste products was reasonably certain to cause substantial bodily harm.

0:59:35 Thomas: Interesting. This feels to me like a slightly harder question than the past three. Let's see if I can keep my streak alive. So I think some key facts here is that it seems to be like a PR decision. I think that might come into play. Let us see. So the president informed the attorney that they made this mistake and the waste products are going to the groundwater. Attorney advises the president that the company would be civilly and criminally liable for negligence in lawsuits brought by any persons harmed by the waste products. Okay, sure. The attorney advises the president to immediately report the problem to city authorities. Fearful of adverse publicity, the president declined to do so.

1:00:22 Thomas: And then the attorney further advised the president that she believed the president's decision was immoral. That I don't, that's the part that I'm a little worried about. I'm not, I don'T remember. We've talked about these issues used before. And I don't remember if that's enough, you know, like I think it has to be something illegal, uh, merely immoral. I don, I don't know. We'll see. That could be interesting. President continued to decline the report the matter. So then the attorney informs the president that she's withdrawing from representation would inform the authority authorities herself. And then immediately after withdrawing attorney reports the conduct to the authorities. Okay. Okay. So, subject to discipline, yes, because the attorney received the information in confidence and was not permitted to reveal the information without the company's consent. That's a weird confidence.

1:01:08 Thomas: Is that like attorney-client privilege? It weirdly sounds slightly different than attorney-client privilege. It's not like, oh, I told you as a friend in confidence, it's like, no, you're my attorney. It doesn't sound quite right. B, yes, because the company's conduct was not intentional. I think that can't possibly be the answer there. C, no, because The Attorney reasonably believed that the President was pursuing an imprudent and immoral course of conduct. Tempting. Tempted. Imprudent and immorality. Immoral, though. That's the thing. It just doesn't, doesn't seem, also, might be justification for her leaving. Like she may be able to justify leaving, but I don't know that that justifies the actual revealing of, you breaking of attorney-client privilege.

1:01:59 Thomas: I think that's a solid elimination. I think C is attractive distractor. I think the answer is D, no, because the attorney reasonably believed that the company's disposal of the waste products was reasonably certain to cause substantial bodily harm. Harm, I think that's what we're talking about here when it comes to revealing attorney, you know, breaking attorney-client privilege. I think that's the standard, bodily harm, I believe, but I, I'm a little worried about this one. I think that there's a possibility it's a, I think, because I'm two for two with the obvious ethical answer, I'm gonna stick with D, D, but I think there's a chance this is A and that it's because don't know. I still think it's probably D because the waste product is going to cause harm to people.

1:02:46 Thomas: I think it is okay to break attorney-client privilege for that, but not. I mean, there is so much language around like, oh, it is immoral and imprudent and that I don't think is enough of an excuse to break Attorney-Client Privilege. So that's why I think A is a strong second option, more so than in the past questions. But I'm going to still go with D, but second chance ethics, my Second Chance Ethics firm would take a stab at A if I need a second guess there.

1:03:17 Andrew: I'm just trying to picture what the motto for Thomas's Second Chance Ethics firm is like, yeah, you're probably all right.

1:03:21 Thomas: Again if you Give me two tries, I will do the ethical thing in one of those two tries, that's the and

1:03:30 Andrew: We'll get there sooner or later. All right, 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 your guests and your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. Yeah.

1:03:45 Thomas: And that's our show. Go check out Law'd Awful Movies, get on the Patreon, it's, it's so much fun, it's a, it's an nice bonus thingy. And because it was late, we'll have another one in like a couple weeks. Oh, and one more quick reminder for our Q&A, Groundhog Day the 2nd, that's 4 pm on YouTube, 4 pm Pacific, seven p.m. Eastern. We can't wait, and get your questions in on that question thread, patrons, we love to see them. And also, of course, vote for the questions you like, and we'll see you for that live Q&A on Wednesday.

1:04:16 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.

1:04:49 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.