OA565: How Madison Cawthorn Could Be Kept off the Ballot

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 565. I'm Thomas and that's Andrew Torrez. How you doing?

0:01:23 Andrew: I'm fantastic Thomas, how are you?

0:01:25 Thomas: Great, excited to remind people of our Q&A coming up on Wednesday. Live Q&A again, patrons get to ask the questions on the Patreon thread, so, you know, good time to join patreon.com/law. Not to mention, it's two for one, join up and you get the Law'd Awful Movies as well, so you can do that, but everybody can come hang out on your YouTube in the chat, we'll interact with you. It's a lot of fun, and that is Wednesday at 4 p.m. Pacific, 7 p.m. Eastern, on our YouTube channel. We'll, you know, we'll send out the links and all that, so make sure to join us a good time, and let's, you wanted see, what, to throw out a plug

0:01:43 Andrew: Absolutely, those are, it's always so much fun, Oh yeah, I wanted to throw out a plug for our friends over at Knowledge Fight. As it turns out, Dan was invited, engaged as a consulting expert witness by the Sandy Hook plaintiffs in connection with that lawsuit. They have. So the status is they won liability on default. Right. And now they get to depose Alex Jones and a corporate representative for the damages phase of the trial. Right? So it's already been adjudicated that Alex Jones is liable to the Sandy Hook families for the grotesque misrepresentations that that show. Yeah, no, and now the question is how much money can they get out of Alex Jones, uh, and um, they, they did a four-hour episode in which they play bits from the depositions It's a, it's log, even by Knowledge Fight standards.

0:02:42 Thomas: Good geez. I think that's par for the course for those guys Yeah.

0:02:58 Andrew: Anyway, It is called, uh, Formulaic Objections Part Four, um, I've, co-hosted over on Knowledge Fight, we've had them on, on this show, that's, it's a good show. They're good guys. And if you want to hear actual depositions of actual bad people, is, this is a great place to go. And I will say, having, having listened to the entire episode, that it really is an illustration of good lawyering.

0:02:59 Thomas: Well, mean we covered it too, we did the lot awful, uh, depositions where Alex Jones ran circles around the attorney back in, in that one, yeah.

0:03:27 Andrew: A Yeah, it absolutely. And this is he is a tough witness. And so, you know, a lot of People are kind of noting, oh, man, you Know, dunking on him. And I'm telling you, there is a time In my career in which Alex Jones would have thrown me as a Lawyer,

0:03:47 Thomas: I mean, in the same way that, like, I don't think it's very easy to win a debate against Trump, not because he has a single true thing to say or like a good point to make, but because you're in a different fight, you know, and I think that's very similar to how Alex Jones acts in a deposition. You're not, it's maybe a young Andrew Torrez would have thought that they could like formal debate, debate me, you Know, kind of thing. Yeah, But

0:03:56 Andrew: Yep. Yeah? Well, and this is no secret, I have long said the goal in a deposition is to discover information. Therefore, your job as the lawyer taking the deposition is to get the witness talking as much as possible, and so I am very, very conciliatory, very friendly, uh, in my depots, I think that's the right approach, and Alex Jones would, I mean, you know, I think that's the right approach in 95% of cases, Alex Jones would have stomped on my skull, I mean, you know, that's what he does, uh, metaphorically. You, but yeah, so good, good, up, worth, a listen.

0:04:51 Thomas: Just clarifying legally, if he lost on default, what was this deposition for? Is it another case?

0:04:56 Andrew: This is over, so he, he lost on liability, right, by default, and then this is the, uh, depositions to determine the appropriate amount of damages, right.

0:05:05 Thomas: Oh, I didn't know that's how that worked. You have a separate depo. Is that just because he never did it to begin with? Like, if they had done depo and he didn't default, would they do it again for damages?

0:05:07 Andrew: Yeah. So You can, like, it is common in large cases like this, and by large I mean with a, a significant amount of discovery, anticipated discovery being exchanged between the parties, to bifurcate, um, liability from damages, right. I used to request that all the time. Uh, when I represented, usually defendants, in these kinds of liability cases. And the argument is, if you try everything together, then that's going to make that phase significantly longer, and you will produce a lot of redundant information that won't be useful, right? Like, if there's no liability, there's no damages, right. So the idea of, why don't you prove up, make the plaintiffs prove up their whole case, right, no, let's streamline it, let's, let's cut the case in half, uh, you prove liability first, and then if you prove reliability, then you prove up the damages portion.

0:05:36 Thomas: Hmm.

0:06:13 Thomas: Interesting. I just didn't know you had a separate thingy. Thanks for answering. All right. We've covered another show, let'S get to Our Show.

0:06:14 Andrew: Yeah. It's called bifurcation, so and

0:06:24 Clip: Down the law, down the law.

0:06:27 Andrew: I want to start off with a, uh, an accusation of "Andrew was wrong." I don't think that this quite meets that category, but it's nevertheless a really, really good email that we got from listener Logan Wilkie, who is a current law student, budding antitrust lawyer, and talking about last Tuesday's episode on Microsoft Activision. Particularly, mean, I think I said this on the show, but I think it's super clear if you look at the show notes, by the way, that's another patron perk, will upload all of my research notes. So you get a chance to see what's going through my head when I'm doing these episodes. And we began with the section labeled Relevant Market, right? Because that's how you ascertain whether a particular business has monopoly power.

0:07:18 Andrew: And that, as we said, that that default is 60% to 65%-ish, right? If you control 60% to 65% of a market, you are presumed to have monopoly power within that market. And then Logan notes something we did explicitly say near the beginning. If the market is just video games, Microsoft does not have market power, right? And that's true, right, even if they are the third largest video game manufacturer. But what we then went on, I thought, a pretty lengthy discussion about was, uh, you know, by reference to, uh, the pending, uh, antitrust case against Facebook with respect to, uh, WhatsApp, um, is you can define that market more precisely, and I had thrown around, uh, some ideas, particularly, particularly market for console and home computer game streaming services.

0:08:15 Andrew: In any event, I thought this was valuable to once again highlight that key, the inquiry taking place is an inquiry into what is the relevant market over which Microsoft might potentially have the ability to exercise monopolistic power. Hour. Then we laid out the Sherman Act claims, right? Because I find those really, really interesting. And so Logan points out, and he's right to do this, and here I'm going to read from his email. "Monopolization claims under the Sherman Act are, of course, the sexy ones." That's so, so true.

"Tying," right, that is, you have to buy this crappy product in order to get the product you really want, is truly chef's kiss classic bad boy behavior, "but mergers are typically not evaluated under Sherman," certainly though they can be. "The antitrust challenge against Facebook alleges that the acquisitions of Instagram and WhatsApp as a buy and bury strategy to preserve their, to preserve their monopoly, and Microsoft's case with Quicken are examples of that," right, that's why I wanted to focus on those, um, and then he says, "but Microsoft doesn't have substantial market power in video," you mentioned, "they're the third largest player, certainly not the 60 to 70% required for a Sherman 2 claim.

Fortunately, Clayton Act Section 7 exists for precisely government enforcers to evaluate any mergers that may, quote, substantially lessen competition or tend to create a monopoly. That's how they can block or attempt to block all these non-monopolistic acquisitions." He's absolutely correct, this is another avenue, we didn't do this as part of our deep dive, so, uh, I'm, I'm glad to revisit a little bit here.

0:09:50 Andrew: Um, this is 15 USC 12 at sec, uh, and in fact we are going to talk about that if we get to the wild card segment today, so, um, I do not mean to suggest that the, uh, Clayton Act is not, uh, an important vehicle for, uh, evaluating mergers. And, and think about that. If you could only bring Sherman Antitrust Act claims, you would have to have monopolistic power to start, right?

And then that would be an act in restraint of trade for Section one, or furtherance of that monopoly, Section two. It would prevent, like, two companies, each with half the market, right, from coming together. You would say, well, neither one has monopolistic power now, uh, but they will have monopolistic power once they combine, and uh, absolutely, the Clayton Act falls into that category of, is this going to create a monopoly, or is this going to, quote, substantially lessen competition. Um, Logan continues, uh, "The interesting question will still be the relevant market in which market is competition lessened by the acquisition. The analysis will come out differently depending on whether it's considered a vertical or horizontal acquisition. To be horizontal, is the market all video games? Probably not, but maybe. Video game consoles versus video game games? Maybe. And that would make it a vertical acquisition,"

0:11:09 Thomas: Right.

0:11:09 Andrew: Which would most certainly go through. All good stuff. Stuff, interestingly, um, in the FTC/DOJ's joint press conference on merger guidelines, they mentioned that they were considering eliminating this distinction in light of growing difficulties in distinguishing between the two. That makes sense, but we have to wait to see how that looks. So that's it for me. This doesn't change much of the analysis you did, which I enjoyed hearing, but I did think it's worth calling out. Well, thank you so much, Logan, we uh, we agree, that's why I wanted to read your letter. Um, I always struggle sort of where to uh, to to stop the deep dive and

0:11:09 Thomas: Yeah. Right. Yeah. It's really hard to know, like, what level. Because you could go forever.

0:11:46 Andrew: But, Logan is correct that the majority of mergers that are reviewed are reviewed under the Clayton Act standard, because it's a lesser standard, right, because it's easier, you don't have to start with uh, monopoly power, um, I just picked from experience and the story of Microsoft, I I wanted to talk about, the you what he, as he calls it, the sexy claims, but uh, I I love that you're out there listening, and and wanted even more so thank you so much

0:11:59 Thomas: Hmm.

0:12:12 Thomas: Just picturing the sexy Monopoly man. That'll be the next Tucker Carlson segment. They stopped making the Monopoly Man sexy. Gosh, you've seen the M&M's thing, I suppose.

0:12:19 Andrew: Oh gosh I this would be great if I had not, and I would just be like Like, well, folks, my co-host Thomas has gone insane mid-episode.

0:12:23 Thomas: Yeah, you'd be very confused. What kind of smut has Thomas got himself into?

0:12:30 Andrew: Look, kink shame here, but,

0:12:32 Thomas: Yeah. All right. Time for some Madison Cawthorn content. This is an effort to get him expelled from Congress for being an insurrectionist. Right.

0:12:40 Andrew: Is an effort to deny him the opportunity to be eligible to be on the ballot. But yes, that is the central argument, and I want to say, because there is folks could easily go back and hear my skepticism of these kinds of approaches generally. Right. In general, I think I still feel this way, but I'm Madison Cawthorn is just such an evil person that I'm happy to be called out for being inconsistent. Consistent. I think I have said each of the following, right? Like that Ted Cruz, I think there's a really good argument that he is not a natural born citizen of the United States. He's Canadian citizen, right. He has renounced his Canadian citizenship. But in terms of the qualification for the presidency, I Think there is a much stronger argument applying those specific provisions as against Ted Cruz than certainly against, you know, as against Obama or John McCain or whatever. But I've

0:12:46 Thomas: Oh, OK. Gotcha.

0:13:05 Thomas: Mm hmm.

0:13:41 Andrew: Also said, right, yeah, Kamala Harris, who was born in Oakland, yeah, John Eastman has already teed up a racist screed about how she's not eligible to be vice president. It's disgusting and wrong. But I've ultimately kind of come down to on the position that if Ted Cruz were the Republican nominee, I would not want Democrats to raise a court suit challenging his eligibility. I would Not want us to be waiting on pins and needles from the Supreme Court to say whether Ted, if, if that's who Republicans want to nominate. I mean, it's sort of I compared it to I think, in you know, if the Democrats had nominated AOC in 2020, right, Right. She would have been 31. Right. Like you have to be 35 to be president. I kind of feel like don't know why we put those restrictions in the Constitution.

0:13:42 Thomas: I mean, mainly because Obama was born in the United States. Yeah, well,

0:14:36 Andrew: I'm not a huge fan of it. So with that out of the way, as kind of a background, like I think the people should get to. If we if we had a 2020 election of AOC versus Ted Cruz, I would not want the Supreme Court to be able to pick who was the president. Right. I would I would say, let's just count up the votes and,

0:14:54 Thomas: Into that, but just in case people don't remember those episodes. You're not saying that it's okay to just ignore the constitution when we don't feel like doing it. It's that this is one of those genuinely non-justiciable questions, right? Where it's like you shouldn't be having the Supreme Court decide, even though it's right there in the text, this is something that in your view should be a non-judiciable issue for the Supreme court.

0:15:07 Andrew: Right that they don't have the power to award the relief that you're seeking, because the relief that you are seeking is to undo a democratic election. To Right. Say, oh, right. We voted in Ted Cruz. Well, now let's go to, you let's go to the Supreme Court and, you kick him out and I think that that does exceed the powers of the judiciary. Happily, and I love that you do that clarification because that is not the case here. This is an, It is super duper justiciable, okay.

0:15:44 Thomas: Very justiciable. Oh, Let's just dish all over it. I

0:15:49 Andrew: It's So Will link the complaint in our in our show notes, but basically, you have the right as a citizen living in any particular jurisdiction by state law to, when you live in a particular jurisdiction, to challenge with the state election board the validity of candidates who are running and for whom you are eligible to vote. You can challenge whether they can appear on the ballot or not. This type of mechanism is employed all the time. OK.

This is not a special or unique circumstance, typically the two challenges, the two kinds of challenges that are brought on the basis of ballot eligibility are brought, uh, number one, alleging whether somebody actually lives in the district in which they're running, right, or number two, uh, alleging uh that they have failed to collect the the proper number of signatures that you need to be eligible to be placed on the ballot. And every election in every state, there are candidates who get challenged by this process and get kicked off the ballot because they're not eligible to be on the bullet, two reasons, again, tend to be the two largest ones, but there are are others, right? All you have to say is, under state law, this person is not eligible to be on the ballot.

0:17:25 Andrew: Well, the argument for Madison Cawthorn is, he is not elegible to be on the ballot because he participated in the insurrection on 1-6. And as it turns out, the little-known Section 3 of the 14th Amendment to the Constitution, which is also known as the The disqualification clause says no person shall be a representative in Congress who, having previously taken an oath as a member of Congress to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.

0:18:00 Thomas: It's right there, huh? Yeah.

0:18:01 Andrew: Yeah. You know, it's almost like, you know, if you if you go by the plain meaning of amendments to the Constitution, it says, yeah. Yeah, if you took an oath to support the Constitution and then you went out and did the opposite of that thing, we can't seat you again. And so how that apply? Well, I'm going to talk a little bit about of Congress who were not seated post-Reconstruction, right, immediately after the Civil War. But here with what we care about is with respect to Madison Cawthorn, is North Carolina General Statutes Section 162-127, and in particular subsection B, which says the challenge to any person, in any candidate appearing on the ballot, must be made in a verified affidavit by a challenger based on a reasonable suspicion or belief of the facts stated. Grounds for filing a challenge are that the candidate does not meet the constitutional or statutory qualifications for the office, including residency. So, uh, what we have, and again, we have uploaded it because it is delightful.

0:18:19 Thomas: Wow. Oh.

0:19:16 Andrew: The affidavit from residents in Madison Cawthorn's district have said, we believe we have reasonable suspicion that he does not meet the constitutional qualification for the office because of what I just read about that there, 14th Amendment thing. Right, and I need to tell you, um, this 100% will survive a motion to dismiss, right?

0:19:41 Thomas: Yeah, I mean, it just sounds so straightforward to me. Yeah.

0:19:42 Andrew: Yeah. It, and by that what I mean is that, um, it will go to, uh, the elections board to investigate, right, and we're to talk a little bit about the procedure, um, Section 127.5, then you're going to love this, is the burden of proof.

0:19:58 Thomas: I am I'm very interested in how, do you, what's the the standard of like, Okay, what's an insurrection, what's participating in it mean, uh, and whether or not that all will be where this ultimately falls short.

0:20:11 Andrew: I'm going to talk about several potential defects, but let me cut to the punchline and say, when I first saw this, voters right, challenge Cawthorn's eligibility, right. I kind of put that into the one weird trick category.

0:20:26 Thomas: No. Me too, literally, I thought this whole time until you explained it that that's what this was gonna be. Wow.

0:20:28 Andrew: Yeah. So I do not think so. I think that this is a meritorious challenge for the reasons that I set forth. Now, at the end of the day, right, don't say that I don't think that, I'm going to say that it is more likely than not that Cawthorne is kept off the ballot.

0:20:35 Thomas: Oh. This is great oh Can't you let us have a nice thing, Andrew.

0:20:50 Andrew: It, um I would like to, but but it's not, I want to say like, you know, 60-40, 70-30, right, like it's it's a I'm saying there's a chance.

0:20:57 Thomas: You're saying there's a chance. Yeah.

0:21:00 Andrew: And part of the reason that there's the way that this works, right, so you, you make the verified affidavit, it must be based on reasonable suspicion that the candidate does not meet the constitutional qualifications for the office. Well, that the folks who have filed this, right, registered voters in the 13th congressional district, have reasonable suspicion that Madison Cawthorn participated in one six. And, right, they filed this notice of candidacy challenge. Then what happens? This is the key part. Section 127.5 says burden of proof. The burden of truth shall be on the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the the office, right? So a tie goes to the challengers, right, them off.

0:21:46 Andrew: So how do they evaluate this? This will go to an administrative hearing before the North Carolina State Board of Elections, okay? Cawthorn's district, the 13th district, like everything in North Carolina is ridiculously gerrymandered, so it encompasses multiple counties. So the Board of Elections must appoint a panel five members from each of various counties the that his district crosses over. And I need to tell you that both the State Board of Elections and those respective county boards are currently controlled by Democrats.

0:22:19 Thomas: Oh my. God, yeah.

0:22:20 Andrew: The panel will then hear evidence, call witnesses, and the statutory requirement is, quote, with information concerning the subject of the challenge, and can issue subpoenas, may require them to testify under oath. And then the panel will determine whether Cawthorn engaged in insurrection for purposes of Section 3 of the 14th Amendment. And that decision can then be appealed to the North Carolina courts. And I know what you're asking, right? And the North Carolinian courts, by the way, not a super liberal judiciary.

0:22:54 Andrew: Judiciary. Um, if, uh, it goes all the way up to the North Carolina Supreme Court, yes, since they are interpreting the constitutional requirement, uh, my reading is that Madison Cawthorne, if he, even if he lost at every stage, would have the right to file a challenge with the U.S. Supreme Court and say, hey, look, who are you going to allow to have the final word on what the 14th Amendment to the Constitution means, some, you know, yahoo's in my home state, or, you know, this August Supreme Court, um, uh, and the Supreme Court is going to say, yeah, no, we, we, we get the final words on, uh, on what the 14th Amendment means. So what that means is it must be an unimpeachably good interpretation of the 14th Amendment that, right, means you need to convince Roberts and somebody. Right.

0:22:53 Thomas: You wouldn't think But I think it's worth talking about, I mean, I, I didn't know this was why it was gonna fail in your odds that you were giving us, like, that's, I mean, effectively maybe it doesn't matter, but I think it's very interesting to note that it won't be possibly due to the actual facts and the law, it will be due to the Supreme Court just, deciding to overrule it, those are two very different things.

0:24:01 Andrew: I should, I should bracket that a little bit. Um, you could have a narrow factual decision that says, uh, Madison Cawthorn did not participate in the insurrection, right, that seems to be false. Uh, but, you know, you could say, uh, just him publicly endorsing, uh, the things that people did, um, is not sufficient, uh, to qualify as as participating in the insurrection, um, where I think the factual allegations really come into play here.

0:24:36 Thomas: I don't know if this counts as insurrection, but he was part of trying to get different slates of electors in and all that crap, it would, that be something you could bring in there as part of the total insurrection kind of package?

0:24:36 Andrew: Right.

0:24:48 Andrew: And is, uh, a part of that so, uh, this, this, this objection is 34 pages long, beginning on at paragraph 36. So 11 pages in, it starts to draw this kind of web together and says, there's a scheme to engage in insurrection to overthrow legally elected president, replace him with Donald Trump, who was not legally elected. A key participant in this scheme was Mark Meadows, then President Trump's chief of staff. Becoming chief of staff, Meadows had served as U.S. Representative for the North Carolina's 11th Congressional District, the seat that Cawthorn now occupies. During this time, Cawthorn forged or strengthened connections with Meadows. Cawthorn was nominated by Meadows to the Naval Academy in 2014 and worked as a staffer in Meadows' North Carolina office.

0:25:37 Andrew: I did not know that. Right. So intimately connected with Mark Meadows. OK, that's probably not enough. But then it says the organizers planned a Save America demonstration, right, on January 6th, to block, to encourage people to rally to block the certification of electoral votes. At this demonstration, they plan to push false claims of massive voter fraud and pressure Vice President Pence to refuse to count slates of electors from states with close contests. Organizers of that Save America demonstration were in close contact with several members of Congress or their staff at this time, including Representative Cawthorn. All right, seems like a pretty good connection.

0:26:22 Thomas: What's the power of this, whatever body is making this decision, to, you investigate, subpoena documents, do that kind of thing, do they, are they, what are they limited to? Can

0:26:32 Andrew: They absolutely may subpoena both documents and witnesses and compel them to testify. So I

0:26:38 Thomas: They can they work with the 1-6 committee, or

0:26:41 Andrew: I don't know, I'm gonna, I'm to talk a little bit about the procedural aspect, but it, I certainly would if I were on this state board of elections, that's, I certainly would reach out, because evaluating these claims is part of their factual mandate, right? Right. So we have this statement, this paragraph 42, on December 21st, 2020, Representative Elec Cawthorn encouraged supporters to, quote, call your congressman and feel free, you can lightly threaten them, say if you don't support election integrity, I'm coming after you, Madison Cawthorn is coming after everybody's coming after, you know, guess we will hear from Madison Cawthorn himself what lightly threatened means. December 31st, Cawthorn announced that he would oppose the certification of Biden's victory on the basis that the 2020 election was marred by fraud, uh, and that he planned to object to results. Um, that, I think I want to say here, as we kind of go through Madison Cawthon's primary defense on the facts, is going to be, um, legislative immunity, right?

0:26:41 Thomas: Yeah. Yeah. Oh.

0:27:44 Andrew: Right. That that he's allowed to say and come to his conclusions about this stuff in the performance of his job as a member of Congress. It's complicated a little bit by the fact that in the pre-January 6th period, he's not a member of Congress yet. Right. He's elected. But he's not, uh, not actually a sitting member of Congress at that point in time. So let's be super clear about the timeline here. Madison Cawthorne was elected in November, right? But until January 3rd, he is not yet a sitting member of Congress. Um, so the, a different standard applies to his statements made pre-January 3nd as opposed to post january 3rd.

0:28:25 Thomas: He then also wouldn't have taken the oath, and therefore the whole reason he would be disqualified is if you took the oath, then did insurrection stuff.

0:28:36 Andrew: So He takes the oath on January third and

0:28:36 Thomas: Right, yeah. I know, but you're talking about the stuff in December, so so anything, he could have, just devil's advocate here, he could have led 10 insurrections before breakfast on on January 2nd. And it wouldn't violate the thing to get them on the ballot, because it wasn't the language, you have to have first taken the oath of office and then done any insurrection-y stuff. Wasn't that the language of it?

0:28:40 Andrew: Yep right right on Is exactly the language of the 14th, of Section 3 of the 14th Amendment, that is exactly correct, so yes, right, the 14th Amendment is based around, and you can imagine, you know, kind of post-Civil War old-timey, like, well, it's not so much the treason that gets us as the breaking your promise. Like we're very disappointed in you I think

0:29:17 Thomas: Yeah. It's too bad that, that now that I think about it, that really didn't need to be in there. I don't need the like, okay, if you, as long as you hadn't promised not to do an insurrection, it's okay that you did it you know like just it should just be nobody who's ever done an insurrection against the United States government

0:29:33 Andrew: That's how we would write it today, uh, but not how, uh, it was written, uh, back in the 19th century, sadly, um.

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0:32:26 Andrew: For some reason the copy keeps making me mention that Moink was founded by an eighth generation farmer who was featured on Shark Tank. Host Kevin O'Leary said it's the best bacon he's ever tasted. I do not know who that guy is, but he's definitely right. Look, here's what you're gonna do, you're going sign up Moinkbox.com slash OA to get a year of filet mignon for free, and then you can pick whatever meat you want delivered with your first box, change what you want each month, change what you have delivered, cancel anytime. That's m-o-i-n-k-b-o x.com slash O-A, Moinkbox.com slash OA. Right here it is, their meat is seriously so good that I'm gonna say oink oink, I'm just so happy I got moinked, I mean, so long as they keep sending me meat. So, uh, what we have are, uh, and and again I could go through this forever, we've read, um, again, it It begins on page 11.

0:33:22 Andrew: Cawthorn's post one, six statements. Again, many of these made not in connection with, you know, things he said in the U.S. House, right, on the floor. These are, you know, calling into Charlie Kirk's radio show and saying no, all the violence was done by Antifa, right, like, you know, those statements begin on page 21, starting at paragraph 60. Um, and they are, um, super gross. Uh, on February 5th, Cawthorne said he did not regret speaking at the, uh, Save America demonstration.

Uh, on August 29th, he said he, he sympathized with the insurrectionists as political hostages and political prisoners, and said, uh, if he knew where they were incarcerated, he would like to bust them out, um, that was at a Macon County Republican Party appearance, for which you can click down a link and watch his revolting ass say this on YouTube. We've, but, put together here, is sort of the the statements before the insurrection, the participating in the organizing and being at the rally, and then than statements post-election that are more than just sympathizing, that seem to be ideologically aligning oneself with an effort to overthrow the duly elected government of the United States.

0:33:54 Thomas: Yeah

0:34:44 Andrew: Um, we typically call that sedition, right, we call, we call that participating in an insurrection, but I could see a very narrow factual, and that was my point of going through all of that, I could see a board not wanting to take up the fight, going all of this is not the same, right, this not Stewart Rhodes coming up with the plan to ship in the guns, right, if you could show me a way in in which Madison Cawthorn actually, you know, quote, actually aided and abetted the insurrection with something other than words, we would do it.

But words are kind of the unique province of members of Congress. And we're not going to, you now, we're going to hold him responsible just for words. I could see that. It would require disregarding an awful lot of sedition law, right? Like sedition is about the words you use, right? It's, it's about like, again, you go back to your point regarding the text. Is this a, this somebody who publicly made an oath to support and defend the Constitution of the United States of America and then went out and did the opposite? So, will be interesting. It will be very, very interesting to see what they do. Um, I will say it's probably not a surprise that there is no Supreme Court case that I know of that talks about what counts as an insurrection for purposes of, um, ineligibility, because the last insurrection we had, there was not a lot of debate about, what I like, you know, either you

0:35:29 Thomas: Yeah

0:36:11 Andrew: Supported, uh, the South during the Civil War, or or or you, you didn't. Like it was a, it was a pretty binary question. And so, you know, there was not, there's not a lot of litigation of like, well, you know, I mean, being a Confederate isn't really being a whatever. So there's no Supreme Court case interpreting this. There are a lot of cases that talk about the deference that that the Supreme Court owes to a state's legitimate interest in policing its ballot. So, for example, there's a 1986 case called Munro versus the Socialist Workers Party. It's 479 U.S. 189. And in that, the Supreme Court upheld a state restriction that said you had to get one percent of the vote in order to appear on the next ballot.

0:36:11 Thomas: We

0:37:03 Andrew: And as you might imagine, Socialist Workers Party said, look, we got zero point eight percent of the vote. We'd like to still appear. And yeah, no, but I love rounding Law. But but the Supreme Court said a state's legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office. This right, so one percent vote requirement, there's also a case called Bullock versus Carter from 1972, that's 405 US 134, uh, in which the Supreme Court upheld uh states that have super high filing fees, right?

0:37:10 Thomas: Do we get some rounding law I always love rounding law yeah was this Carter Carter or some other Carter

0:37:44 Andrew: No. Yes, this is Jimmy Carter, as governor of the state of Georgia. Right. And it was upholding the filing fees for Georgia elective office. Right. To say, hey, it is perfectly valid to set the filing fees at a level that excludes people from office. States get to control who has access to their own ballots. So that's in the background. Would you like to know what what Madison Cawthorne's argument has been?

0:37:49 Thomas: Sure.

0:38:14 Thomas: God, I just hate this guy so much. He really is the worst. Everything about him sucks.

0:38:17 Andrew: Really is the worst Yeah Um, his lawyer is right-wing firebrand James Bopp Jr., uh, who has said publicly that

0:38:26 Thomas: All right. Well, that name rules. Okay. That's one thing about Madison Cawthorn that's cool. He has a lawyer with a cool name. It's the only thing.

0:38:33 Andrew: Has said, oh no, Congress already took care of this in 1872 when they passed the Amnesty Act, Yeah, I'm to, I'm going to put a link here to Gerard Magliocca, who has written what I think is the key law review article on this topic. It is called Amnesty and Section 3 of the 14th Amendment. And it was written to analyze the question of whether participating in 1-6 was, under the original public meaning of Section 3 of the 14th Amendment, an insurrection that would preclude you from your seat. And one of the things that Magliocca points out is that, indeed, right after the conclusion of the Civil War, the U.S. Congress

0:38:41 Thomas: Wait, what?

0:39:27 Andrew: Refused to seat a bunch of people who were elected, it uh, who, uh, had been Confederate officials who had sided with the Confederacy, um, and that continued, uh, until Reconstruction fizzled out uh and in 1872

0:39:32 Thomas: Yeah. Yeah. And then And they're all let back in.

0:39:43 Andrew: Yeah Well, in 1872, Congress passed the Amnesty Act, and it reads in full, quote, that all political disabilities imposed by the third section of the 14th article of amendments to the Constitution of the United States are hereby removed from all persons whomsoever, except senators and representatives of the 36th and 37th Congress, okay, that those are the people that they previously kicked out, officers in the judicial, military, and naval service of the United States, heads of department, and foreign ministers of the United States. So entered May 22nd, 1872. James Bopp's argument is, well, see, they, that means all persons whomsoever, Madison Cawthorne is a person, that's debatable, but uh, so he falls under it, right?

0:40:31 Thomas: I have a real hard time believing that something from 1872 would be like, so all insurrectionists are cool forever. For all time.

0:40:35 Andrew: For All Time, of course You have a hard time believing that because that is the dumbest possible interpretation of the 1872 Amnesty Act that you could possibly imagine, and the way to understand how dumb that is, is if true, would have the effect of allowing an act of Congress to overrule an amendment to the Constitution. And like, your high school brain should be, you know, civics class should be like, wait, wait, wait, that that's not a thing that can happen, no.

0:41:02 Thomas: Right.

0:41:10 Andrew: What I'm

0:41:09 Thomas: I'm surprised they even made this dumb argument. I expected a bunch of like, what are you talking about? It was a tourist, you incident. It was not an insurrection. It was all fine. Nothing happened. I just expected a lot of that crap.

0:41:22 Andrew: Sure, we're going to get that as well. This was, this was Bop talking about, uh, how they're going to respond. I need to tell you that because North Carolina's gerrymandered congressional maps are also the subject of dispute. All of these proceedings have been stayed pending the resolution of who's in what district.

0:41:23 Thomas: Okay. Oh, good point.

0:41:46 Andrew: Yeah. So we do not have pleadings. We do not yet have a response from Representative Cawthorne. We do not yet have a decision to to go forward and constitute the the State Board of Elections panel. And we won't until they've adjudicated what's going on with those congressional districts. But this was his lawyer speaking, saying, you yeah, we we think we're good because of the Insurrection Act. And if this is the quality of representation that Madison Cawthorn has, maybe I should go back and up my percentages. I am sure they will make all those other arguments. Right. The the tourists. And again, look, he has a non frivolous argument of we on face of we don't generally um impose sanctions on members of Congress for things they say, uh, but like, but insurrection is a, you know, it's a hard argument. Like Magliuca's argument to the contrary is kind of like, but that's exactly what we did from from 1865 to 1872. Right, like

0:42:45 Thomas: Yeah, did they only punish members of Congress who physically took up arms in the Civil War? No. Yeah.

0:42:46 Andrew: No No If you supported the Confederate government, uh, you were kicked out of Congress Until they

0:42:59 Thomas: Sure seems like speech to me.

0:43:00 Andrew: Yep So, um This started off as kind of a one weird trick, and it it it took a direction that I didn't anticipate, so trick

0:43:03 Thomas: Wow, it might be a one very legitimate try, at least. Yeah, that's not really a trick. Yeah, I think that's super cool. I love when we get those. So glad for the analysis. We'll keep watching. Watching your prediction at what, okay. I want, I want your prediction. At least at what point do you think this might fail? How far do you Think this will get?

0:43:15 Andrew: Yeah So we'll Keep Watching, yeah So I think we will get a ruling from the State Board of Elections. So in other words, they're going to try and move to dismiss. I think it survives that. And I think the State Board of Elections convenes a panel, evidence, and that we get a decision from that State Board of Elections. And I, I'm going to, you want a bold prediction, I will say this, I think the initial administrative decision will be from the State Board of Elections that Madison Cawthorn is not qualified to appear on the ballot. And then all of the legal challenges begin.

0:44:12 Thomas: Yeah.

0:44:21 Thomas: And assuming that, well, I think probably sooner than that. I mean, assuming you would want someone else to have the ability to run, you know, you'd want to give enough time, right. To have a meaningful election.

0:44:34 Andrew: And absolutely, so uh, it's it's stayed right now pending a resolution of the map, but uh, I expect that to be resolved rather quickly, and then, um, you know, again, all of these are, uh, are going to be a race against the clock, do

0:44:47 Thomas: Wow. Very interesting. And I think have just enough time for a wild card. Uh, okay. You, you teased it already. Antitrust related at the very least. What's our wild card? I don't even know. So that's how wild it is.

0:45:05 Andrew: Yeah, so this is two senators you would think of necessarily being united in a particular goal. This is a bill that has been drafted by Amy Klobuchar and Tom Cotton, and it's an antitrust bill. And it is combining the right wing's hostility to mainstream social media with the left wing's hostility, to giant corporations. And resulting legislation is good legislation. So here's what it says. It says it shall be unlawful for a covered platform, put a pin in that, uh, for a covered platform operator to acquire directly or indirectly the whole or any part of the stock or other share of capital of another person engaged in commerce or in any activity affecting commerce, the whole, or any part of the assets of another person engaged in commerce or an activity affecting commerce. Right? So, so here's what that means. Okay. The default rule is if you are are a covered platform operator, we're going to define what that is, but if you're a giant, uh, online, uh, multimedia company, right, then, um, it

0:45:19 Thomas: Huh? Oh, there you go.

0:46:20 Andrew: Says is that by default you cannot buy another company. Right now, that's the default rule.

0:46:27 Thomas: That's pretty restrictive.

0:46:28 Andrew: Yeah. Totally restrictive, so what are the exclusions? The exclusions are that the covered platform operator demonstrates by clear and convincing evidence. Right. That's the like 75 percent standard. So not just more likely than not, but clear and convincing evidence, that then here are the full list of the exceptions. Okay. That the acquired stock are valued at less than $50 million. Right. So there's the first one right off the bat. If you're going, oh gosh, like, you know, they can't do anything. No, no, no. First 50 million is on you. Right?

0:46:29 Thomas: Yeah. Yeah, man.

0:47:01 Andrew: To paraphrase Liz Warren. Yeah. Yeah.

0:47:01 Thomas: To quote, yeah, Elizabeth Warren.

0:47:03 Andrew: Or that the acquired assets or the issuer of the acquired stock do not compete with the covered platform or covered platform operator for the sale or provision of any product or service. Okay. That's a constitute nascent or potential competition to the covered platform or cover platform operator, for the sail or provision of any product service. C, enhance or increase the covered platform's or cover platform operator's market position with respect to the sail or provision of any product or service and D, enhance or increase the covered platforms or covered platform's ability to maintain its market position with respect to the sale or provision of any product or surface offered on or directly related to the covered platform. Right. So the idea is, yeah, we're seeing right, Facebook, uh, buy up competitors, uh, in the classic monopolistic sense, right?

0:47:53 Andrew: To buy those customers, acquire the technology, and then bury it, right, to buy out competition. And so what we want is a presumptive rule that says, if you're in this social media space, this gigantic social media space, that you can't buy up your competitors in order to To further cement that monopolistic position. So I've been using the phrase covered platform operator. The term covered platform is defined as an online platform. And then does the thing where it delegates to the FTC and the DOJ the right to put people on the list. Right. So it says, yep.

0:48:38 Thomas: Gives it some Chevron deference.

0:48:41 Andrew: Yep. So it says it's a covered platform that's on the list, right, that has been designated as a covered platform by the FTC or DOJ, or that at any point preceding a designation during those 12 months has at least 50 million U.S.-based monthly active users, or at least 100,000 monthly active business users, was owned or controlled by a person. And again, person here can mean corporation, right? Corporations are people, my friend. With a United States net annual sales of $600 billion in the prior calendar year or a market capitalization of greater than $600 billion and is a critical trading partner for the sale or provision of any product or service offered or directly related to the online platform.

0:49:28 Andrew: And then the guidance to the FTC DOJ is apply all of those same factors. So the list is going to be, right, Facebook, Twitter, Google. It is the major online players, right? That have a market cap of $600 billion or more and 50 million or more users. And it says, hey, you guys are huge, um, and we're not entirely sure what's going on, uh, but, uh, we think maybe you shouldn't be buying up a whole bunch of little companies.

0:49:38 Thomas: Hmm.

0:50:01 Andrew: Right. Now, yeah.

0:50:01 Thomas: That basically is Congress's approach to tech in a nutshell. We don't know what this is really? But we don't like it.

0:50:05 Andrew: Yeah. If, but that's right, and so, uh, again, um, this is the, the difference between Democrats and Republicans, right? Like, I, I hate Tom Cotton as much as all of our listeners hate Tom Gotten, but right, I don't mind granting the right wing a victory here. And, you know, that we sure showed that, you know, big tech, uh, Twitter, who's boss, because we're still mad because you won't platform any Nazis, um, if the effect is, right, to start, uh, exercising some, some antitrust muscle here, right, and to say, uh, yeah, we, we think presumptively when Twitter goes out and buys a tiny little startup, uh, that, um, and again, I shouldn't say tiny little start-up, got to be over 50 million dollars, right? So, you, the, again, first 50.

0:50:54 Andrew: Millions on you, um, when Twitter goes out and buyers a much smaller rival, right? Or let's use a real example, right? When Facebook buys Instagram, when Facebook buys WhatsApp, they're probably not thinking of the best way to, to use those services. They're probably thinking of how can we use that to leverage our position over your data and and quash, potential competition. And so I thought this was an interesting approach.

0:51:04 Thomas: Yeah, do you think, what's your overall opinion on this bill? Do you think it's a good bill, well-written?

0:51:27 Andrew: I think it's good bill. It's always interesting to me to see these things that come up that are, you that feel like a throwback to 30 years ago, you know, and that's what this feels like. This feels like Amy Klobuchar and Tom Cotton were talking for some reason and, we're you like man um it is crazy the way uh gigantic social media companies are out there um treating this like the new Wild West and uh just snowballing their monopolistic positions and and I think they know you kinda looked at each other and were like yeah we agree on that let's let's see if we can't put something together so

0:51:28 Thomas: Okay, yeah.

0:52:03 Thomas: Like, if only there was a body that did, did like deliberating and then did think, wait a minute, holy crap. We can do that together. Weird. All right. Well, we squeezed it in. Well done.

0:52:12 Andrew: So I,

0:52:18 Clip: And thank you, Let's go!

0:52:19 Thomas: And now it's time to thank our Hall of Famers, our all-time greats. And guess what? We're on the final quartile. Pretty cool. It's already somehow another month has gone by. So we're on the final quartile and we always say that's the best one so Andrew, why don't you start us off and I'm going to start looking up next month so I can tell people what to expect for next month 1,

0:52:41 Andrew: Thank you to pull Chris Waltrip to snowmobiles are less edible than you think abscion give to modestneeds.org and then visit it deepfakestop.com yes absolutely Jonathan new year new patron name same great karaoke legend thank you to Milo Mead Song takes full and sole credit for the retirement of Stephen Breyer well hey uh we said it you snuck it you got it in I'm very pleased

0:53:07 Thomas: They snuck it in I'm so glad that was short notice I'm very proud of you Milo good job

0:53:11 Andrew: Yeah yep join your labor union together we bargain alone we beg I don't talk to the sort of people John Brown would have shot well Well, good for you. Not that Chris Wallace. Life still hasn't heard me screaming my safe word. Justice for Sergeant Javi Escada indicted for felonies in retaliation for whistleblowing police misconduct. We're going to have to take a look at that. Alfred Wallace. Word origins dot org has a new book from from bar flies to Bitcoin. How words map our modern era. That sounds super fascinating. That's

0:53:14 Thomas: Hmm wow I

0:53:46 Andrew: Available on Amazon. I'm going to check that out. My witty names aren't original and my original names aren't witty false anonymous dude r.i.p. Notorious RBG that can never say that too much right Liz puffy coats are violence W Derrick Malcolm the dragon the precious variant is sympathy for the bevel the all woodworker Rolling Stones tribute band that's a that's an A plus dad joke big easy blasphemy uh and then uh the the folks who says who say they don't need to call out um but we're uh still thankful we're calling out that you don't mean to tell only the true messiah would deny his own divinity taking

0:54:11 Thomas: That's awesome we're calling out that you don't need a call out looking ahead you would have figured as much February is another quartile month it's a short one but we've got quartiles so adjust your names accordingly it'll be the same as we just did roughly thank you to a string of unpronounceable characters Ronda the dork.com Moleka Chandler they said I could be anything so I became Two Princes Who Adore You soggy pants Therese Chan adopt a homeless pet and oppose declawing and ear docking Day Jury Belly at Patchy's at last baby Heather L Matthew Vernon Butterscotch the Cat Jeremiah's fancy microwave emporium in an alley Danny Erzari Eli Bosnick gets to change his patron name because Patreon gave up on his blog too Adam Costa the shenanigans coordinator David in Brooklyn Sam Denow Mitchell anything Thomas dislikes is automatically part of the MCU that's funny Michael Robs I agree with that 100 Sam Buck and Conrad Michael still on top well Uh, thank you so much, Hall of Famers.

I want to remind everybody to come join us for the Patreon Q&A this Wednesday. It's coming up a couple days, Wednesday, 4pm Pacific, 7pm Eastern, so much fun. Go check out the question thread, vote on the questions you want to hear, all that good stuff, and they will obviously mostly be Stormy Decisive Questions, because Stormy is incredible at question asking. I mean, I think we can all agree, tip our caps to Stormy.

0:55:23 Andrew: Vote

0:55:49 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:55:55 Thomas: And now it's time for T3BE. Thomas takes the best ethics.

0:55:59 Andrew: Thomas tries to be ethical.

0:56:01 Thomas: Yeah, that's what it is. Thomas tries to be ethical. That works. All Right. Did I go for three for three or did I miss one? Let's find out.

0:56:07 Andrew: All right. This was an attorney represents a company, uh that produces chemical products. The waste, highly toxic. The president tells the attorney that, Emily Newman, it's her first day. She mistakenly disposed of the waste products right next to the city water supply. The attorney says that's super bad. You could be civilly and criminally liable for negligence in lawsuits because people are going to drink the water and get sick and die. And I think you should immediately report this problem to the city authorities. The president's like, yeah, I'm not going to do that.

0:56:32 Thomas: Civilly. But what if I didn't do that? All

0:56:49 Andrew: So then the attorney says, "Well, I think this is immoral and I'm resigning." Um, and then uh, the attorney told the president she was withdrawing from representing them and would inform the authorities herself. Immediately after withdrawing, the attorney reported uh the company's conduct to the authority, so she did in fact make good on the threat. Can she be disciplined? You went with no, because the attorney reasonably believed that the company disposal of the waste products was reasonably certain to cause substantial bodily harm. Thomas, Thomas, you are three for three on ethics.

0:57:20 Thomas: Right.

0:57:20 Andrew: You're acing this.

0:57:21 Thomas: I was almost rooting against myself to make this exam a little more interesting.

0:57:27 Andrew: What this is testing is we have always described the exception to attorney-client privilege of, you know, sort of imminent future crime, right? Your client can say I was the second shooter on the grassy knoll and I'm forbidden from ever telling anybody that.

0:57:41 Thomas: Yeah. By the way, listen to Lamb for Andrew's very expansive views of what you're allowed to not tell the authorities if your client says it. But yeah.

0:57:50 Andrew: Yep. Yeah. But actually talk about this rule, rule one point six that lamb. Sam, your client and the classic example is always if your client says, hey, I'm about to leave your office and I'm going to go shoot somebody, you can then report that the language in the model rules of professional conduct is reasonably certain to cause death or substantial bodily harm. And so you always think of that as committing future crimes. What this question is testing is, well, what if it's negligence, Right. Like they didn't the company didn't set out to murder anybody. They just, you know, Emily dumped the stuff in the wrong place and now they don't want to tell anybody. And the standard is, yeah, if it if if your non-crimey negligence would have the same implications, right, would cause the same certainty of causing death or substantial bodily harm.

0:58:53 Andrew: We don't care if it's a crime or not, um, we want the attorney to be free, uh, to report that conduct. The whole "I think this is immoral" was a red herring that you saw right through. Super proud of you, good, good work.

0:59:01 Thomas: Yeah. Okay. Thanks. Yeah, I flagged it, but ultimately it did seem like this was going to cause some people some bodily harm. So yeah. Okay. All right. Three for three. I'm the most ethical person in the world. All right, well, I'm ethical. Let's find out who is also ethical among our listeners. Who's this week's big winner? At Michael underscore Avenatti says.

0:59:05 Andrew: Uh, Right. Yeah. Yeah.

0:59:27 Thomas: Tai, another great OA episode. If you care about US law and politics, you should be listening to this show. Now a limerick. And let's face it, if someone goes to the trouble of writing a limmerick, I'm gonna probably pick it. Then again, I not a huge fan of limericks, so now I don't want to see like 900 limerics. But okay, just do something clever in your answer and you have a good chance of being chosen. Here's the limerick. This is my answer for T3BE. I agree with Thomas, it's D. He can raise the alarm to avoid bodily harm. Corporate lawyers need morality. The uh, the meter gets a little messed up there, but I think, I think it works. Corporate lawyers needs morality. All right, that was fun. Thanks, Matthew. Uh, congratulations, infinite fame and fortune forever, 100% guaranteed fame and fortune.

1:00:18 Thomas: Absolutely guaranteed. Personally, by Andrew Torrez, I can say that because he's not here. Good job. Follow at Matthew Tai on Twitter. And that that's out show, thanks so much for listening everybody, we'll see you at that Q&A be there, see you then

1:00:31 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:01:05 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.