OA569: Cawthorn Is as Bad at Picking Lawyers as He Is at Not Doing Insurrections

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 569. Nice. I'm Thomas. That's Andrew Torrez. How are you doing? And we're 12.

0:01:22 Andrew: Nice. Yeah, well, you know, I am always pleased when I get a chance to be 12. No, I'm fantastic. How are you doing?

0:01:31 Thomas: Doing great. I am. I don't know if I should sell people on the wild card in case we don't get to it, but there's a little wild card that I hope We get to. That is incentive for us to try to get to, to uh, but as always, great deep dives as well. Any announcements? Are we just going all

0:01:40 Andrew: There you go. Me too. Now, let's do it.

0:01:51 Clip: Down the law, down the law.

0:01:55 Thomas: So Andrew, we've got an update on asylum law, and I believe, uh, this is kind of like an OA was right, uh, about this is, wow. I You refresh us all on the situation here.

0:01:55 Andrew: Yeah. Okay. So we told you how bad Trump was in terms of going after changes to the asylum rules at the Department of Homeland Security, right, and that these were could prove motivated by naked cruelty, right? Like, this is not just changing immigration. This is changing the rules and the way that asylum seekers are treated in this country, a specific narrow subset of most victimized and poorly treated folks who come here. We told you, in general, number one, that the worst of the rules were unlikely to survive even this Supreme Court. That turned out to be correct. The Supreme Court, by 7-2 ruling, prevented the expedited removal orders from going into effect.

0:02:57 Andrew: But Trump managed to promulgate a lot of rules through his lackey, Chad Wolf, at Department of Homeland Security, that made it harder for those who seek asylum to maintain a living in this country while we adjudicate their asylum cases. We're going to talk about those rules, but I want to tell you this is good news. This is another OA was right, where we told you that this was a case where the procedural issues that we talked about were more than just a sternly worded Crunch rap, that, that because because Chad Wolf was not confirmed by the Senate to be director of Homeland Security, because the Trump administration did an end run around the process, that that was going to make everything he ever did void ab initio, from the beginning.

0:03:46 Andrew: And that's the case. We now have six court opinions, including one that came out a couple of days ago, all of which say the same thing, which is, well, let's delve into it. These two trump era rules have to do with EADs, Employment Authorization Documents, and the application is Form I-765. The document itself is an I-766. Basically, here's how that operates: if you are in this country, you need to show proof to your employer that you're allowed to work in this country. If you are a citizen, you fill out Form I-9, right? If you are one class of resident aliens, you fill out a green card.

The right. EAD is a third way in which you can demonstrate that you are allowed to work in the United States, even though you don't have a social security number, for example. So you apply for the EAD if you are authorized to work in the U.S. because of your immigration status, right. And that includes those who are here as asylum seekers. It includes refugees. And you need to demonstrate proof of that authorization to your would-be employer, and bunch of other specific criteria, right. So this is an alternative way in which you can go and get a job.

0:04:20 Thomas: The

0:05:08 Andrew: You do not need to apply if you are a lawful permanent resident or which in which case you will have a green card. But you will also apply for the EAD if you are here on, for example, an M1 or F1 student work visa. Right. So thinking about you're here for graduate school. Right? And then the school wants to hire you to continue your research as a postdoc. Right, well, you can do that, that but you have to to apply, right, that would be consistent With the terms of your visa

0:05:35 Thomas: So You're a foreigner stealing Americans' jobs. I get it. Not

0:05:38 Andrew: Yeah right, the those are the conditions under which you're applying for an EAD. Trump did two things. The first he did was called the EAD bar rule, and that restricted the number of individuals who were eligible to apply for the E AD in the first place. So barred ability the to apply for an AD for asylum seekers who entered without inspection, those who were deemed to have have delayed their asylum applications, right.

So doesn't matter if you are fleeing persecution, right, that's the criterion for asylum seeking in the United States. If the Trump administration adjudicated that, you know, you took too long, they would say now you're not eligible to apply to get a job. Now you might ask, why would you want someone who is legally in this country pending an asylum decision to not be able to get a job yeah uh, naked cruelty is, I mean, like, because seriously, if you are a small government conservative, you should want them working rather than living on public assistance or worse, right? Because if you're here, you're ineligible for public assistance and you're ineligible to get a job, um, there aren't too many ways that you can feed yourself that are are then not, you know, criminal externalities, right? That EAD bar rule also more than doubled the amount of time you had to wait to apply for a work permit after you filed for asylum, from 150 days, don't ask me why that's was the baseline rule, to one year. I'm happy to tell you that the Biden Department of Homeland Security rescinded that rule on day one.

0:06:27 Thomas: Be able to get a job Yeah. We'll

0:07:15 Andrew: But I am not happy to tell you, and if you're on team, you guys at OA are just Biden apologists and you never criticize, here's the legitimate criticism of the Biden administration. They did not rescind the timeline repeal rule. That's the second thing. And here's what it says. The timeline repeal rule eliminated the government's 30 day deadline to decide initial asylum seeker work permit applications, right. So in other words, you had to wait 150 days, and then the government was required to rule on that within 30 days, right, up or down, yes or no, can you work, can you not. You Right. Would think that that makes sense, the Trump administration that requirement. So, again, if you are looking to appease a base that does that wants nothing more than to be as cruel to attempting to enter this country as possible, you would say not only do you have to wait a year before you can apply to work here, but then the government can take as long as it wants to adjudicate that request. Yeah.

0:08:17 Andrew: That was finalized at 8 CFR Part 208. Not only did Biden not eliminate that rule, but they defended that rule in court. DHS Secretary Alejandro Mayorkas, that's Biden's DHS secretary, adopted it for clarity. We'll include that link in the show notes. And it says out of an abundance of caution. Right. And that's those are legal words you use when you say, I think that this is I don't have to say this. I think the law is clear that this rule still applies. But out of An abundance of Caution, sometimes the other phrase you use is for avoidance of doubt. Right. I want to be clear, because I like being clear, that this rule is hereby, and the exact language is,

0:08:15 Thomas: Just never Decide what

0:09:02 Andrew: Pursuant to my authority as Secretary of Homeland Security, which he has, and based on my review of the actions and decisions listed above, I hereby affirm and ratify the above actions and decisions regarding the timeline repeal NPRM, that is notice of proposed rulemaking, and the timeline repeals final rule. So if you want to criticize the Biden administration, this is really good grounds for doing it. They adopted, specifically ratified and said, yeah, we want the flexibility to take as long as we want to decide these apps.

0:09:31 Thomas: Do You think They're thinking Just That we don't have enough judges to do so. Similar story to other other things like this.

0:09:37 Andrew: I think in general, if you asked, I think what happened is that at a high level, Biden asked the secretary and then Secretary Mayorkas asked his staffers, hey, do you think of the 30 day rule? And they said, we are so backed up. It is terrible. Like we would like to have that flexibility if we have to adjudicate this entire backlog of Trump not acting on asylees, that's going to be really, really hard for us. So that would be my good faith argument. Um, I think it is a totally fair response to, for a a pro-equality, uh, Secretary of DHS to say, well, you know what, we're going to put in some overtime and and deal with it. Um, so fair criticism, they defended it in court. So a bunch of interest groups, including Asylum Works, uh, challenged that rule in court, and now our friend Chief Judge Beryl Howell of the uh United United States District Court of the District of Columbia has said, nope, those rules are no good. This is now the sixth court unanimously, right? No courts have ruled that Chad Wolf was lawfully the acting secretary of DHS.

0:09:59 Thomas: Yeah. So

0:10:47 Andrew: All six have said no, this guy was, you tried to do an end round around it. It's obvious that you did not comply with the statutory requirements. He's just a guy in there. And so every single thing he has done is void ab initio, from the beginning. And this is 100 percent what we told you two years ago would happen. I know this is a wheels of justice churn slowly, but we said, hey, this is an example of where the system does work, it's going to undo all the horrible stuff that he has done, uh, and to to illustrate the extent of that, Mayorkas is a real secretary, he was actually confirmed by the Senate, that guy deserves to be there, but he can't he lacks the power to ratify a thing that shouldn't have existed in the first place.

0:11:35 Andrew: Here's what Judge Howell says. This is beginning on page 17. The court thus agrees with plaintiffs, that is Asylum Works, the public interest group, that Secretary Mayorkas's May 2021 ratification, that's what I read to you, that's the, you for avoidance of doubt of the timeline, repeal rule did not cure that rule's approval and issuance by Wolf, who was never lawfully designated as acting secretary. So no, you can't, you can't come in and do anything. You have to, if you want want to do that, you have to start over from the beginning. And And here is where, you know, I would probably scale back the criticism of the Biden administration. There is no likelihood that they are going to separately pursue, uh, reinstating this right, like, and begin the notice and comment and say, no, we affirmatively want to adopt it, right? You can see them saying, all right, we're not going to disturb it, uh, but they're not going to go back and put this into place. It

0:12:29 Thomas: Wait, is there a bunch of other stuff that should come tumbling down because this guy was illegitimate, or was? Hmm.

0:12:34 Andrew: Will come tumbling down eventually as it gets challenged in court. And again, uh, lots of those previous rules, uh, have now been challenged. You have to have proper standing, right? That's why it's coming out piecemeal, uh, but again, we're six for six on challenging horrible stuff, uh, that that Chad Wolf did.

0:12:52 Thomas: Well, Plus I imagine So Reminding me, the, um, reason that it's better to do this rather than the new guy just reversing everything is that it takes time to go through all the notice and comment period Is that what it is? Okay. So

0:13:03 Andrew: Yep, that's exactly right. Under the Administrative Procedure Act to promulgate new policies that supersede existing ones, you have to have you have to actually conduct fact finding. And we have seen lots of Trump era administrative rules struck down because, right, they just concluded they didn't they didn't do a modicum of fact finding. That That was critical, by the way, to The Supreme Court ruling in The Citizenship question. They said, look, the Department of Commerce predetermined that they were going to add a question based on Thomas Hofeller saying this will benefit white people. You didn't doing any real fact finding? So there is a modicum of actual honest research that you have to do, and then you have to make a notice and comment period available, you have to propose the rule, it has to go back and forth, and all of that could then be challenged in court by Republicans. So much better.

0:13:56 Thomas: As long as this process is, this court, the churning process, says this is a real slow, slow churned ice cream of law, uh, this is faster than still than just trying to reverse it

0:14:05 Andrew: Yep. And it makes a real difference for asylees because the immigration courts, we have talked They backlogged to begin with. And then, you know, Donald Trump broke the process over four years. And getting a work permit is not only crucial to being able to pay to feed and house yourself. Right. But other aspects of being a part of of day to day life, like applying for a driver's license, require you to demonstrate that you have the ability to get employment. So all of those things are also contingent on your demonstrated employment eligibility. And and this will make a real difference as our courts process these asylum applications.

0:14:07 Thomas: Okay. Yeah, great.

0:14:58 Andrew: So you're sitting here. You're an asylum seeker. You are waiting for the courts to say whether you get to stay here permanently or not. The question is, can you get a job? And as a result of this litigation, it's now back to where it was before Donald Trump came into office and tried to wreck things. So unambiguously good news.

0:15:20 Thomas: News. Oh, I was right, uh, which is also good news. Yeah.

0:15:23 Andrew: That's the best news.

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0:18:48 Clip: Treason is treason.

0:18:53 Thomas: Madison Cawthorne update, uh, I was about to hope for what the update was, but I, I worry I could get into trouble for saying what I was going to say, so, uh, what's the, the update? Oh, good

0:19:02 Andrew: Again. So look, we told you in episode 565 just a couple of weeks ago that we took that seriously. Right. The challenge on the ballot to Madison Cawthorn's eligibility.

0:19:03 Thomas: Right not a one weird trick, a one legitimate challenge

0:19:15 Andrew: Right to. Yep. Yep. And so huddle up my my lefty friends. OK. I sometimes get emails that say, hey, we're all on the same team. Why do you go after Occupy Democrats and the Krasensteins and the Jacobin bag and write these terrible sources? I do this not because we're not, you know, just stick to going after, you know, Trump and the right. I get that. I go after them for a couple of reasons. One is many times they ask for your money, like Jill Stein. And I want to tell you, do not send these grifters money. Slightly more important than that is you are reading wing sources that that have a mistaken view of the law that can sap your activism. And Thomas, I know you remember this, but some of our more recent listeners may not remember the like halcyon days of early 2017, right? In which a great many of folks on the left thought, you know, the court's going to check against the worst of the stuff that Donald Trump is going to do.

0:19:18 Thomas: Oh, all right, you get

0:20:20 Andrew: Are going to be fine, this will accelerate the revolution, you know, what's the big deal. And, and one really good example of that that we took on early on was Trump's Muslim ban, right? And we said, as it was phrased, uh, there were a lot of problems, uh, but that eventually those idiots were going to get it right, uh, and that the Supreme Court, that, as you look at the the statute

0:20:41 Thomas: Enough right-wing fascist monkeys at the typewriter, they will type a immigration ban that works yeah

0:20:41 Andrew: Yeah and that that the statute delegated that level of authority to the president, I wish we didn't have laws that did that, uh, but we accurately told you that was going to get through. Now, it took Donald Trump three revisions and two years, but ultimately that practice went into effect. And I, I remember early on, like, we criticized, it, it did me no favors as a card carrying member of the ACLU. We criticized an ACLU headline that was like, Supreme Court strikes down Trump's Muslim ban, because, yeah,

0:20:50 Thomas: Because it didn't, right?

0:21:22 Andrew: That implied, OK, it's all good, nothing to do here. And our lesson, and it's one I hope people have taken away, is this is still on you, right? Like the fascist cosplayers with eye patches who want to overthrow the government are working their asses off, right? They are stockpiling guns in hotel rooms. They're putting in the work. And if we don't put in the work in return, if we don't outwork them, they're gonna take back this government. And it is terrifying.

So that, that's, that's a reason I don't want to give you false hope and say, this is a, you know, you're, you've read this meme, and it says that this is unconstitutional, so it's all going to be fine. It's important to tell you when you got to do the work. And the third reason, and this is the happier one, and it dovetails with with what we're doing here today, is if everything is one weird trick, then you can't evaluate the things that seem like they're what a weird trick that actually do have a chance. And, and this is, as we said in episode 565, and I'm going to emphasize again here today, this is something you should take seriously. It is something the election board is taking seriously, and I am going to tell you how we know. So every election cycle, cycle, candidates are kept off the ballot. They are disqualified as a result of state law.

Now, it is true that usually that is for one of two things, either failure to get the requisite number of signatures that are required on the petition, right? You challenge the petition because you go back and look through these. And if it takes 50,000 signatures on a petition to run for Senate, you look through, and some percentage are going to be Donald D.

0:22:54 Andrew: Duck, 123 Fake Street, right? Like people lie when they sign up for on petitions, and a certain number are going to get challenged. It's why, uh, best practices in politics are to to blow through those numbers, right? If you need 50,000 signatures, you get 70. Um, other way in which, uh, candidates are kept off the ballot is they don't live in the district, right? And you prove, yeah, I know you said you You rented this apartment, but actually you haven't paid rent there in eight months. You don't really live there. You've never been there. The landlord doesn't know who you are. Candidates get kicked off the ballot. So is the latest filing by the North Carolina Board of Elections. Why do they have a filing? Because, as we told you, the challenge itself is stayed pending the results of redistricting in North Carolina.

0:23:45 Andrew: Right. We read that North Carolina Supreme Court opinion. But that didn't stop Madison Cawthorn from preemptively going to federal court and moving for an injunction. He did that on January 31st. And the NCBOE said, OK, we oppose that. Right. Right. So all of this comes from that state board answer. And I just want to say, at the outset, right, the state board says, "In the past four years alone, the State Board has decided 12 candidate challenge appeals involving all types of races, meaning electoral races, including candidates for the judiciary, state legislature, sheriffs, and county and municipal offices. In contrast with postal election protests" wonder why they had to say this "these pre-election challenges serve the critical purpose of ensuring that only qualified candidates appear on the ballot and are voted on by the electorate, while promoting public confidence in the electoral system."

0:24:40 Andrew: Um, I love that little, uh, implicit dig of, wait, aren't you the party of we want to stop voter fraud? Um, this Would, this is potentially, this is how we actually police voter fraud, right? Having candidates who are not eligible to, uh, to run for office. Well

0:24:47 Thomas: Yeah, yeah.

0:24:57 Thomas: Is That voter fraud, or is that like candidate fraud? Election Election Fraud.

0:25:00 Andrew: Yeah. Electoral. Election fraud. Let's say that, right? Um, so top level, if the board was not interested in evaluating the claims against Madison Cawthorne, they could have just not replied. Yep. They're taking it seriously, and there are numerous signs in the brief that they're taken it seriously. I want to go through their four-step argument. Uh, step four, by the way, is the evaluation of likelihood of success on the merits. So that's their fallback, fallback, fallback argument. If you're thinking, wow, usually that's front and center, that will tell you how bad Madison Cawthorn's effort to get an injunction to stop this from going forward is. And I have zero doubts, and neither will you, when we're done this segment, that the court is just going to toss out Cawthon's verified complaint seeking seeking injunctive relief. So what are the arguments that say, no, you're going to have to go through this process, Madison Cawthorn?

0:25:01 Thomas: Yeah, yep. Yep. Yeah.

0:26:01 Andrew: Number one, the federal court has no jurisdiction to adjudicate any of Madison Cawthorn's claims yet, He right? Hasn't suffered anything that is a cognizable injury, Yeah, because the board hasn't ruled. Now, you know, no, we've talked about this. You can get declaratory relief, right? Even injunctive relief for an injury that is actual or threatened, right. So I, I have talked about, for example, my case in which, uh, you know, my client said, yeah, we'd like to cancel this contract. Before we do that, we are going to get a declaratory judgment that the contract is, that we have a right to do that, and we're going to continue to abide by the terms of the contract until this court tells us whether we can or we can't. Um, but that's threatened injury, right? That is, hey, we would like to cancel this contract rather than us canceling, and then you suing us for damages. We're going to go to the court and have them adjudicate, are we allowed to do this, right? Um, but here nobody has threatened Madison, Madison Cawthorne, with any damages. And, right, this is page seven of the board's motion to dismiss.

0:26:13 Thomas: Yeah.

0:27:05 Andrew: They say here, "Plaintiff has not alleged an actual injury, and instead cites his concern that he may suffer the future harm that he may not be able to run for office. These alleged injuries are entirely speculative at this early stage, where the state board has not even had the opportunity to name the panel to consider the underlying matter." Indeed, that

0:27:25 Thomas: That would Be like pretty inefficient, or talk about like clogging up the courts. You're gonna get a federal court to like decide a thing that a state-level organization hasn't even impaneled somebody to decide yet. That doesn't seem right. Yeah.

0:27:41 Andrew: Is exactly, boy, put a pin in what you just said, because that is incredibly prescient with respect to argument number three. So we'll get there in about 30 seconds, because these arguments are really easy to understand. But the federal court, I love that you jumped on that because it illustrates something that I think is hopefully an OA lesson. All right. So argument number one, we don't have an injury in fact here. We have no idea what's going to happen. And as the board points out, there remains a question of whether the district will change under the redistricting, whether plaintiff will have to refile in a new congressional district. That could happen, right? Right. Whether the challengers would still be eligible to challenge his candidacy or and whether they will actually do that.

0:28:29 Andrew: Right. So all of those are things that we don't even know yet. It's just way too early. It's way too speculative. One hundred percent. That is, in my view, an almost entirely knocked-down argument. They pair that with a second related argument on ripeness, and ripeness is related to standing. Um, and it basically asks the question, um, is going to hurt you, uh, if we wait, right? If we do nothing at this stage, and the answer is nothing. Right? Yeah.

0:28:59 Thomas: Yeah.

0:28:59 Andrew: Um. Will you suffer any harm if the court does nothing? And the answer's just no. So wait until their proceedings, then file your answer and appeal if you lose. Right? That's the way this whole process works. You don't need an injunction, you just just go through the system. Oh, I, I also meant to add, with respect to both of these threshold arguments, uh, there is a footnote, and by the way, this is 100% how you handle it. Uh, Madison Cawthorn and his dingus attorney apparently failed to actually serve the defendants properly. So, you know, that is, give them the copies of the papers, uh, and so, you know, they've reserved their right to also raise service of process issues, but you don't need to clog it, because they're like, a "Fine, look, like we have so many great arguments here, we're not even going to get into the you didn't actually give us the lawsuit," because the reason for that is, these are reasons to dismiss with prejudice. Failure to serve, you dismiss without prejudice. Right.

0:28:59 Thomas: Yeah.

0:29:56 Andrew: And then you just, yeah, you refile it and then they actually put piece of paper in your hand. So so

0:29:56 Thomas: You Give Them another Chance. Wait, So this Is with prejudice, as in, then what if the decision happens and he doesn't like it, can he not refile then if it's Dismissed with prejudice? Yeah.

0:30:08 Andrew: It lets so let's talk about that. Right. That is going to overlap with the third argument here, which covers the fact that he is seeking an injunction. He's brought this case in federal court and you seized upon something that we try and emphasize here on a way. And that is, while your state trial courts are courts of general jurisdiction, they can hear literally anything they want. Federal Right. Courts are Courts of Limited Jurisdiction. You get into federal court if you have if you fall, if you are authorized to do so by the Constitution. The two basic ways in which that happens are either you are seeking to vindicate a statutory right, right? You have been given the right to be in court by virtue of a federal law, or you have diversity jurisdiction.

0:31:01 Andrew: We've talked about both of those. And there are other scenarios, but those are the two principal ways in which you get into federal court. Because federal courts are courts of limited jurisdiction, there are a bunch of ancillary doctrines that say, essentially, litigation in federal courts, even when there is personal and subject matter jurisdiction, is disfavored. And one of them is a doctrine called abstention. We've talked about this before, but I don't know that I've ever done a deep dive explainer, so I'll do a medium kind of explainer here. And abstention doctrines are ways of saying, hey, the federal court should hold off. And usually you hold off because something else is going to happen in the interim.

0:31:47 Andrew: In this case, this is called Younger abstention. It's from a Supreme Court case from 1971. So, you know, not pre-Ali McBeal, but not, you know, powdered wig era, that says, if you have pending state court proceeding, then there are good reasons to ask if the federal court should get involved, or if the the federal court should just hold up and say, we're going to let the state court sort this out. And if they screw it up, yeah, come back later. Right. And again, that case is is Younger versus Harris. That involved a California statute. But you want to talk about everything old is new again.

0:32:33 Andrew: The Criminal Syndicalism Act, which says any doctrine or precept advocating, teaching, or aiding and abetting the commission of crime, sabotage, or unlawful acts of force and violence, or unlawsful methods of terrorism as a means of accomplishing a change in industrial ownership or control, or affecting any political change, was against the law. And as you might imagine, in the late 60s, a bunch of socialists, communist radicals were arrested under this Criminal Syndicalism Act, and their crime was distributing socialist leaflets. Right. And that's what happened to Harris. And so Harris is charged with violating the California Criminal Syndicialism Act. And he goes to federal court and files for an injunction to stop his prosecution.

0:33:23 Andrew: He's joined by a bunch of other like law professors and and college professors who were not charged and who were like, I also distribute socialist literature. And I would like not. So I have a real interest. I would Like not to get arrested.

0:33:37 Thomas: Well.

0:33:38 Andrew: Right. And right, so two steps. First, the Supreme Court, in the exact same analysis that we just went through for Madison Cawthorne, said, yeah, that other professors, sorry, you're not properly a party to this case. Right. It's too speculative. Let me know when you get arrested. If you get arrest it, then you have an injury. But right now, what you have is, maybe we'll get arrested. So all of those got knocked out. Um, and then the Supreme Court said, okay, Harris, you do have standing, you have been arrested, um, we we could grant relief, we have subject matter jurisdiction to grant you an injunction, but we're not going to, we're going to abstain, we're not going to entertain this request right now. Come back here if you lose in state court, but right now, every argument you're making in this court is an argument you could raise in state court.

0:34:25 Andrew: And if that happens, and if you win, then we wouldn't have to have this federal proceeding. And we should encourage state proceedings over federal proceedings because state courts are courts of general jurisdiction and we're courts of limited jurisdiction. And by the way, the state of California is like super interested, way more than we care about whether its law is constitutional or not. Okay. So that set forth the general principle, which is federal courts should abstain from deciding cases whenever federal claims are or could have been presented in ongoing state judicial proceedings that concern important state interests. So you see kind of all the elements there, right? Like you have to have a federal claim. It has to either have been or could be presented. There has to be an ongoing state judicial proceeding, and that state judicial preceding must concern important state interests. If all those elements are met, then the federal court can say, you know what, we're going to exercise our discretion to abstain in this case and just hang out, right? Just hang back and say, let's see what happens.

0:35:28 Thomas: That's interesting, because you know, in a case like that, it does strike me as fair for someone to be like, hey, I need to know if I'm gonna get arrested for my political activities, right?

0:35:38 Andrew: I agree with that, which is why I wanted to go into the merits of the underlying case, that is the way these had contrasted with our current right wing activist Supreme Court.

0:35:43 Thomas: Yeah. Yeah. That was not at all In defense of that argument.

0:35:50 Andrew: Yeah. No, no, no. No. And that's that's and why I want to point out again, this is 1971. This is the heyday of the most liberal period in the Supreme Court's, that it's the beginning of the end of the the most liberal period in the Supreme Court's history, but it is still a very, very left-leaning Supreme Court. Um, and they they sort of struck that balance of? They said, we are happy to weigh in in favor of individual rights when we take these cases, but at the same time, we still want kind of a proper distribution of the role of the courts, right?

Like, it it's why, if there's one thing that I have pushed back on since day one of OA, it is the slander that it is is left wing courts that are activists. Right. Like, you can see the restraint coming from this. Right. So the Supreme Court going, look, if we don't have to get involved, we'd rather not get involved. Right? Could you imagine this court exercising that doctrine on something they care about?

You can't, because they actively want to overturn not just left wing decisions by the Supreme Court, insufficiently right wing decisions, by that Supreme Court, democratically elected laws, laws, right, as in the case of Michigan, right?

0:35:52 Thomas: Yeah.

0:36:03 Thomas: Hey.

0:37:03 Andrew: It is just, kind of throws it into bold relief. So yeah, look, there is an argument, and Younger drew, it was an 8-1 decision, there were a couple of concurrences, and there was a dissent from Thurgood Marshall, and it drew a dissent that basically said, is an unconstitutional statute, and the additional law professors ought to have the right, and like, essentially what you said, right, that um Yeah.

0:37:26 Thomas: Okay. Yeah.

0:37:27 Andrew: That they ought to have the right to know if they're going to be, uh, hauled off in the middle of the night, uh, where, you know, there's... there's no good faith basis in law for, uh, arresting somebody for being a socialist. So so keep that in mind, that's the Younger Abstention Doctrine.

It says essentially, and again, remember, this is at the discretion of the federal court, but it says, says, look, you want to pause and hang out and let things play out in the state court, that's a reasonable thing to do. Right. And they're good separation of powers and constitutional reasons to think we'd rather have the state court decide issues that are important to it, and also ancillary federal issues.

And, you know, we're, like I said, we'll have here if they get it wrong, then to have us preemptively get involved. Now, Madison Cawthorn's lawyers knew this argument was coming. It is amazing how terrible a job they did in trying to preempt this Younger argument. It is such nonsense. I'm going to read it to you. Now that you understand what Younger abstention is, this is the entirety of the argument against it in his verified complaint, paragraph 63 to 65, right, three, three paragraphs, uh, on pages 11 to 12, uh, here. Younger does not apply because there is no ongoing state judicial proceeding as all candidacy challenges have been stayed. And if you're thinking that's not what those words mean, you are smarter than Madison Cothran's lawyer, right? Like, the definition of pending proceeding includes that the proceedings have been stayed, right? Like, you you would say proceedings are pending before, right?

0:38:17 Thomas: Oh. And This is because of the redistricting, right? Stayed for the redistrict, okay, yeah. I was like, was he assuming that his stay went through? No, okay, they were already stayed for the redistricting, but that doesn't mean they don't exist anymore Yeah.

0:39:00 Andrew: Exactly. Yeah. That doesn't mean there isn't an ongoing proceeding. It means it is not being adjudicated at the moment, right?

0:39:15 Thomas: And If that were true, wouldn't that also be like, well, then what are you challenging if it doesn't exist? It's not not around anymore. What what is it that you're challenging, yeah.

0:39:22 Andrew: Exactly right. Yeah. Yeah. We want you to enjoy this proceeding that doesn't exist, yeah, that, exactly right, dumb statement, gets better 64, most importantly, now let me give a side, side note, because I know Ace Associate Morgan Stringer is listening here. This is not a mistake that she would make. But we have a lot of younger lawyers, law students who listen. Never, ever use the transition, most importantly, or something similar, because that signals to the court, well, yeah, that last paragraph, that was total bullshit.

0:39:24 Thomas: Yeah. So the first thing's nothing, yeah. That sucked

0:39:55 Andrew: But, you know, my real argument is, right, yeah. So anyway, most important, Younger does not apply because the state board has no authority to decide the constitutional issues before this court the judicial power of North Carolina is fully vested in the judicial branch of the state government. An administrative agency, and then this is a quote from a case, has no power to promulgate rules and regulations which alter or add to the law it was set up to administer, or which have the effect of substantive law. That's a case called Hall versus Toreros, from an intermediate appellate decision of the North Carolina intermediate appellate court. Right. Then you have to combine that up with paragraph 65, because they haven't completed the argument yet. If the NCSBE, the state board, determined all or a portion of the challenge statute was unconstitutional, that's the argument that Cawthorne is making, the statute it is set up to administer would be altered by definition. The NCSP does not

0:39:55 Thomas: Yeah I don't

0:40:53 Andrew: Have that authority under law, and so Younger does not apply. Is that is. Well, you shouldn't, because that is legal nonsense, right? That is, um, the the equivalent of having the little, like, law poetry magnets on your fridge and just throwing them up in random order. Administrative agencies hear constitutional, constitutional challenges all the time. I know, because of do-ad-law, right? So let me give you a perfect example of where I've litigated these kinds of cases. For example, I've talked about zoning cases. One, right, of the primary arguments that a petitioner will make in a zoning administrative case is, hey, you rezoned X piece of property into Y zone. That deprived me of all economically viable use of the property and therefore constitutes a regulatory taking and therefore is in violation of the Fifth Amendment.

0:40:58 Thomas: Even understand that that's

0:41:50 Andrew: That is a stock argument you make in every single case. And the administrative agency has to say, did this zoning violate the Fifth Amendment or not? Now, Cawthorn might say, right, right, but here we're arguing that the statute itself in whole or in part is unconstitutional. And I would say, yeah, I've made those arguments too. Happens is the administrative agency's determination that a statute is partially or entirely unconstitutional is just not binding outside of that particular hearing, right? So it doesn't alter the statute by definition. Either one of two things happens, right? The administrative agency says, yeah, we think that this statute probably doesn't give you the right to do the thing that you're trying to do, and therefore we're, you know, dismissing this matter or, you know, granting X kind of relief. One of two things can happen. Either the parties can agree to it, and if they agree to it, then you have an administrative opinion that is persuasive but not binding on future courts, right?

You don't, it doesn't declare the statute unconstitutional, it doesn't bind the courts in any way, but the courts could look at it and go, yeah, we adopt the reasoning of the administrative agency, or they can say, you know, you know, administrative agencies ought to stay in their own lane because you suck at adjudicating the Constitution. But either way, that does nothing to violate separation of powers, or, and I cannot stress this highly enough, administrative agencies, their findings, you can appeal to the judiciary.

0:43:24 Andrew: And once you're in the judiciary, all of a sudden, They have the right to look back and do that exact evaluation that I just described, only not in a subsequent case in the same case. And while the on appeal, the fact findings of the administrative agency are due deference, the legal conclusions are due no deference. Right. Because they're outside their lane. So, in other words, this is a lawyer that does not know the very, very basics of administrative law.

0:43:58 Thomas: What I expect. Yeah.

0:43:59 Andrew: Yeah, it's Terrible. So, those are your three arguments in order, right? Right. Throw this case out because there's no standing. Throw this case up because it's not ripe, the alternative. Abstain while we let the state court practice run its course, in the alternative to that alternative. By the way, their arguments are nonsense. Right. We remember the the standard. This is now on the merits. Right, is on the merits of whether to grant injunctive relief, right, like not on the merits of whether Madison Cawthorne is eligible to be on the ballot, but in

0:43:59 Thomas: From from Medicine Conference lawyer.

0:44:36 Thomas: Yeah.

0:44:36 Andrew: Determining whether he gets an injunction, we know our standards, right? He's got to to prove likelihood of success on the merits, he's got to prove that the balance of harms favors him, he's got to prove irreparable harm. This brief gives like a paragraph and a half to irreparable harm and balance of equities, because the time you get to that, if you're not persuaded by the first seven arguments, they're like, well, I guess our subjective evaluation that there was no irreparable harm here probably isn't going to carry the day. Madison Cawthorn raises four arguments, and this brief says your arguments are bad and you should feel bad.

0:44:37 Thomas: Yeah. Oh.

0:45:15 Andrew: Remember, Remember, we talked about I'm going to only talk in depth on this one. Remember that the the capstone argument that Madison Cawthorn advanced and his lawyer articulated in public was, no, we were that the Amnesty Act of 1872 said that Congress was going to. Yeah, Just, you know, blanket amnesty for anybody who participated in insurrection that covers us 150 years later. Um, and as we pointed out, and this is a great time to plug, I went back and got uh the original episode in which we discussed this, this was episode 456, Insurrections Have Consequences, as we covered on the show.

Um, the Amnesty Act of 1872 very clearly did not apply prospectively, because the House used that same provision, section 3 of the 14th Amendment, to unseat socialist Victor Berger in 1920, and we talked about Victor Burger's story at great length.

Well, look, if Madison Cawthorne, is, you cannot come up with a theory of reading the Amnesty Act of 1872 that's like, well, you know, it skips about uh 50 years or so, uh, and then comes back into play if you're a right winger trying to overthrow the government. That's not how it works. So, uh, you're an idiot was essentially what the board said.

0:45:33 Thomas: Wow. Oh.

0:46:33 Andrew: The other arguments were so bad. Madison Cawthorn said, I have a First Amendment right to run for public office. The response back to that is no, no.

0:46:40 Thomas: Yeah. Sure. So I can get on the ballot. Then, well,

0:46:43 Andrew: Yeah, No, you don't. To the extent that courts have ever said you have one, it's an associational right. Right. It is. You cannot say socialists are prohibited from the ballot because the group of socialists as voters has a right to associate and promulgate socialist ideas. And you can't, per se, keep their candidates off the ballot. So I guess if Madison Cawthorn wants to say insurrectionists have an associational right.

0:47:08 Thomas: But, but again, you don't have a First Amendment right to, as you kind of highlighted, not get enough signatures for something, live in the wrong district. You don't even have the right to run for office in any way or office you so choose. You know, like, that's not how it works.

0:47:08 Andrew: Right, yeah. Yep. Yep. Nope. And uh and the board points that out, they say if the operative uh legal constitutional standard is, if you impose a modest burden on someone running for office, the law is clear that that is not a First Amendment violation, right? You have to say, like, categorically, you know, no socialists can run for office or something like that. All right, that, that was not, that's count one, that wasn't good. What about count two? Um, by switching the burden, right? Right. By having a burden shifting, which we talked about in episode five sixty five. Right. That means Madison Cawthorn will have to prove a negative, and you can't prove a negative. So, something, something, that's a violation of due process.

0:47:42 Thomas: Mm-hmm.

0:48:01 Thomas: You can't prove a negative. You canít prove that you werenít an insurrectionist. But the other side can't prove that you're not not an insurrectionist, so neither side could prove anything, dang.

0:48:05 Andrew: I can't proof that I wasn't an insurrectionist. Exactly right. The board.

0:48:16 Thomas: Can't

0:48:16 Andrew: Yeah, the board had no problem. They didn't even address the like kind of silliness of phrasing this as proving a negative.

0:48:24 Thomas: Proven.

0:48:24 Andrew: They said lots of states, lots of the Supreme Court has routinely upheld burden shifting in electoral challenge cases. And that's all this is. Count three. The last argument. Right. So now, I mean, we've gone through a series of Of increasingly bad arguments How about count

0:48:25 Thomas: Decreasingly.

0:48:41 Thomas: I can't wait to what we're gonna get to next. Oh.

0:48:43 Andrew: Three is because the House has the right to expel its members, that means only the House gets to judge who's properly its members or not. Right. They're the judge, not you.

0:48:52 Thomas: Weird, because when you're running, you're not yet a member, I get that, he, he is an incumbent, but like this would apply to anybody for

0:49:01 Andrew: That's exactly right. Right. And they say, look, every state has age and residency requirements. The implication of this argument is that any restriction is per se unconstitutional and that can't be right. I want to point this last part out because as I go through the brief, there is a citation to one good case for them. It is a 1968 case from the Supreme Court of New Mexico called Chavez versus Evans. It is distinguishable on the facts, but basically that was a per curiam opinion, right, unsigned by the state Supreme Court that said various disqualified candidates should have been certified, should have Been allowed to appear on the ballot. How do you think the North Carolina State Board dealt with that New Mexico Supreme Court opinion?

0:49:48 Thomas: One, it's a state board, so the, the state of New Mexico, does that apply to them? But for, also for two, I don't know why they were not allowed, you know, and do the facts matter of why they weren't allowed a

0:49:58 Andrew: Not Doesn't at all, doesn't at all.

0:50:00 Thomas: Dozen.

0:50:00 Andrew: It Well, because your first instinct there is correct, right, which is when you have a case that is relatively close on the facts, and you are crushing it in the rest of your brief, you handle it exactly the way the North Carolina board did here, which was, we think this case is distinguishable, but in any event, we think the New Mexico State Supreme Court got it wrong 54 years ago for all the reasons that we we set forth in the rest of our brief. And being will, like, knowing sort of where that line is, right, where you've built up enough credibility with the judge to be like, yeah, you know, they're probably, I'm not going to, I'm not going to lie to you, judge, um, found, they managed, uh, in looking through uh 250 years of legal history at the federal and state level to find one case uh from 54 years ago uh from across the country uh that that sort of says what they want to say, and what we'll say is that, um, court was wrong, and we're happy, and this court should not adopt uh a state Supreme, right.

0:50:00 Thomas: How do the facts not matter? Oh.

0:50:59 Andrew: This is what persuasive authority means. You're not bound by it, right? The State Supreme Court of New Mexico has no control over North Carolina substantive law. If this court is truly troubled, you know, will you want us to distinguish it on the facts? We could go back and do that. But but if you're thinking that this constrains your authority in some way, it doesn't. Don't worry about it.

And and so I wanted to highlight that because, you know, as we're sort of going through and talking about drafting tips and the like, that's a weapon that's in your arsenal as a lawyer, is to say, yeah, maybe, maybe this guy's got it wrong, wrong. Now, you know, if what you say is, we think these 17 courts have all gotten it wrong, that's a much harder argument to write, right? Like, we've talked about that before.

Um, that will often come up in federal court where you have a a split between the circuits, and you will say, this circuit is undecided, I want this court to adopt the majority rule, it's been adopted in the first 1st, 3rd, 4th, 7th, 9th, and 11th circuits, give the explanation, we think that's reasonable, the minority rule from, you know, the 4th, 5th, and 8th circuits is X, we think those cases are distinguishable and are not the better rule because of Y, Z, and A. You do see that you have to treat it differently when a bunch of courts have have come to the opposite conclusion, you can't just say like, look, man,

0:52:22 Andrew: I don't know what the heck was going on in New Mexico in 1968, like, you have to take that seriously, but when they have one really good case and all of the law seems to be on your side, uh, you can take the position of, yeah, I get it, they found their one good case, good on them, but I think they got it wrong.

0:52:37 Thomas: We're By the time we get to count seven, I assume it was Madison Cothorn just saying, also my next argument is, I'm, I'm a very special boy, please let me on the ballot. It, they keep getting worse and worse. Yeah.

0:52:45 Andrew: Might as well have been. So, I delightfully, Madison Cawthorn will have the right to file a reply brief. You can bet I'm going to be reading that. That might make its make its way into a short segment in the future, because they're not going to have good responses to most of this. And I'm eagerly awaiting what they do decide to jump in on. But I predict, could be pretty fearless about this, that the federal court will at minimum decide to abstain and say, we're going to hang back. We're We gonna reserve the questions Questions on actual injury for the time being, because we're going to we're going to stay all proceedings in this case under the younger abstention doctrine and and see what happens. That's And my fearless prediction. And again, all of this is meant to say what that means is the state board will do its job.

0:52:58 Thomas: I just

0:53:45 Andrew: And that's all you can ask. That Right. Is, they will compile the evidence. They will hear testimony. They will subpoena witnesses and they will make a determination up or down as to whether Madison Cawthorn is eligible to appear on the ballot because he's an insurrectionist, because he tried to overthrow the lawful government of the United States. Um, you know, where I come out on that, uh, if, the board comes out the other way, well, at least, uh, we know they took the argument seriously. Uh, and that's all you can ask for, so.

0:54:13 Thomas: Love.

0:54:13 Andrew: Great.

0:54:14 Thomas: That, where did.

0:54:14 Andrew: News.

0:54:14 Thomas: They get that you can't prove a negative one in that context, I can't proof, I'm not the Zodiac Killer, I can prove it, no, actually you can, I wasn't born then, you know, like, there are ways to prove negative, what are they even talking, okay.

0:54:28 Andrew: Do just to disprove the, uh.

0:54:32 Thomas: Can.

0:54:32 Andrew: Negative of, I am, uh, maligning Madison Cawthorn. Count this is page 14, count two. The provision of the, the challenge statute, which shifts the burden of proving a negative to the candidate, as applied to any challenge under Section 3 of the 14th Amendment, violates the due process clause of the 14th Amendment. So I am not just making fun of him. Here, Representative Cawthorn is required to produce countervailing evidence to prove a negative, i.e. he did not engage in an insurrection, based on nothing more than the challenger's reasonable suspicion. Such a burden shifting requirement as applied to Representative Cawthorn here violates his constitutional rights to due process clause. That's not a sentence, under the 14th Amendment.

0:55:19 Andrew: And if that seems ridiculous, it seemed ridiculous to the, to the North Carolina board as well. I.

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0:57:33 Clip: WOAH-

0:57:40 Andrew: Ah.

0:57:42 Thomas: Card, Andrew, but I don't care, let's do it anyway, word.

0:57:45 Andrew: Let's do. It.

0:57:45 Thomas: Of. Law. There.

0:57:46 Andrew: All. Right, so, uh, as you might have heard, uh, the New York Times has bought Wordle, and so a bunch of folks have asked, uh, the, the series of questions of, okay, does this mean Wordle is going to go behind a paywall, if it goes behind a payroll, is there going to be some free copycat version that comes out that we can all play instead. I.

0:58:09 Thomas: Already is.

0:58:09 Andrew: I would.

0:58:09 Thomas: Again.

0:58:10 Andrew: Say, you know, you're not giving the New York Times a buck, you know, give them a buck, they're, they're worth it, uh, but, um, I thought it would be worth talking about, um, what copyright exists in Wordle, and here I am guided by, I just want to say this is another plug for the Opening Arguments Facebook community, uh, for Pete LaMonica, who is, um, an IT developer, not a lawyer, and so I'm leaning on him from the programming side, uh, but his, his answer I thought was really, uh, kind of right on in terms of, uh, framing the questions, and I'm going to talk about a case in the middle of it. So, question, is there anything to prevent someone from cloning the game and putting up another free version on another web page? And Pete says, I'm not a lawyer, I'm a programmer who gets to live in a world full of IP laws.

0:58:55 Andrew: It depends on how they clone it, but essentially not really. So first of all, the reason that app stores take down clones is because the app stores have policies against cloning existing apps. That's to keep their ecosystems clean of duplicate content. It's not because clones are illegal or anything. That is 100% true. As for doing a web version, there's two options. One, because Wordle is entirely client-side, i.e. it does not talk to the server for game logic, it can essentially be copy-pasted by anyone with a moderate knowledge of web development. Now, that is a violation of the creator's copyright. Pete is 100% correct here. You can copyright code the way in which you implement a process. That has been well-established for 50-plus years.

0:59:41 Andrew: So the cloner would be subject to DMCA takedowns sent to their host, and or lawsuits by the copyright holder, 100% correct. However, as you might have noticed, the internet is full of copyright violations, so chances are, if the clone isn't. Popular, nothing.

0:59:55 Thomas: It's. Already.

0:59:56 Andrew: Will.

0:59:56 Thomas: Full.

0:59:56 Andrew: Happen.

0:59:56 Thomas: Of. Wordle clones, like it. Already is, huh?

0:59:56 Andrew: Yeah. Right. Don't do this, it's both illegal and unethical, right, and again, I think part of the spirit of the question is, a, having everyone, right, that the same level of kind of community, everyone posting their Wordle, right, to go over to, you know, Squirtle or whatever, you, the clone would be, if something is obscure enough as to evade copyright owners looking to prosecute violations, it's then prop, it's probably too obscure to have that same kind of sense of community and sharing, you know, your Wordles, right. So that was point one. Point two, Wordle is a really simple game, creating a clone is so easy that it's reasonable project for a new programmer to do in about a week or so, an experienced dev could probably churn out a clone in an afternoon, as long as they don't go too far in copying the interface, doing stuff like making the keyboard.

1:00:46 Andrew: Use round buttons or something, they're probably in the clear, with one notable caveat, the word list, and again, this analysis is 100% dead on, you can reverse engineer a program, right, program it in a slightly different way, and so long as you've rebuilt it from the ground up, that is not a copyright violation. So, just an excellent summary of the law. Now, the word list, in general, game mechanics are not subject to copyright, for instance, you can't copyright hangman or tic-tac-toe, however, in addition to a list of, a an open source word list, Wordle has curated a list of about 2,500 words that constitute the solutions, right, that's so, 13,000 viable guesses, 2, 500 words that they draw from, uh, and Pete says, again, I'm not a lawyer, not lawyer, but, but my instinct on this is that copying the curated word list would be problematic. It's fairly.

1:01:41 Thomas: Yeah.

1:01:41 Andrew: Large and somewhat essential to the game. Now, let me jump in here with the Supreme Court case. This case, we've talked about it on the show before, is governed by Feist Publications versus Rural Telephone Service Company, 499 US 340 from 1991. And that had to do, we have talked about this before, with phone books copying each other. And one of the, the things that phone books would do in order to prove, uh, copying is they would put fake names in their phone book, they would be distributed throughout, and then, yeah, if a competitor comes along, and all of a sudden you see, like, wait a minute, like, you know, if, why.

1:02:21 Thomas: One of Bart Simpson's names, Amanda.

1:02:23 Andrew: Can't.

1:02:24 Thomas: Hug.

1:02:24 Andrew: Why.

1:02:24 Thomas: And kiss.

1:02:24 Andrew: Can. I find Amanda Hug.

1:02:24 Thomas: Yeah. The.

1:02:26 Andrew: And kiss, right? Yeah, uh, you say, "Here are all the fake names we put in, they all appear in this phone book, they've definitely copied us." And uh, that was practice uh right up until phone books became kind of obsolete.

Anyway, um, and the Supreme Court said, "You know what, um, this does prove that they copied, um, but that uh does not prove copyright, uh, because just listing data in alphabetical order is not the kind of thing that you can copyright in the first place." So the Supreme Court said, this was again, Rural Telephone Service Company, which made their own little white pages, "The selection, coordination, and arrangement of Rural's white pages do not satisfy the minimum constitutional standards for copyright protection.

As mentioned at the outset, Rural's White Pages are entirely typical. Persons desiring telephone service in rural service area fill out an application, Rural issues them a telephone number. In preparing its White Pagers, they simply take the data provided by its subscribers, listed alphabetically by surname. The end product is a garden variety white pages directory devoid of even the slightest trace of creativity. Rural selection of listings could not be more obvious; it publishes the most basic information, name, town, and telephone number, about each person who applies to it for telephone service.

This is a selection of a sort, but it lacks the modem... modicum of creativity necessary to to transform mere selection into copyrightable expression. Rural expended sufficient effort to make the white pages directory useful, but insufficient creativity to make it original." So, totally okay for Feist Publications to copy their phone book and market their own phone book.

1:04:01 Andrew: Neither one, right, is copyrightable because there is no, quote, modicum of creativity. Now, the Wordle list clearly passes that test, right? Phone book is just everybody who applies listed in alphabetical order. Wordle is making a judgment about which one of these would be fun, right? Like because you can guess Wordle like anything, 13,000 different five-letter words. You can guess totally obscure words and Wordle.

1:04:28 Thomas: Somebody The programmer, I think the programmer's girlfriend, I can't remember the story, one of them did the work of curating that 13,000 down to a 25-ish-hundred list of words that would actually be good to be the clues. That seems like work that's copyrightable. Come up with your own word list

1:04:39 Andrew: Yep. Yep. So if you're a cloner, what you want to do is curate your own word list, right. Right. Yeah. Not going to take that long. And if you do that now, there is nothing left. Right. You have reverse engineered the code. You Have come up with your own word list. You're not going to call it Wordle or Squirtle or whatever. But you could absolutely have a legal duplicate that everybody could jump ship to. So long as, you you're not using the code, you'RE NOT copying the interface, and you'RE not using their curated word list. So that's, that's the future of if New York Times tries too heavy handedly, you to they put a whole bunch of onerous restrictions on Wordle. Yeah, then, then you Know, Wordle will find a way.

1:04:47 Thomas: Huh Yeah Oh, how fun. Well

1:05:28 Clip: And thank you, Let's go!

1:05:29 Thomas: Now it's time to thank our Hall of Famers, our all-time greats, on patreon.com/law. We are on the second quartile. It's, yeah of course the second quarter is the best. Yeah, no, totally. Uh, and it is your turn first, Andrew

1:05:36 Andrew: The best, objectively the best quartile You to Crazy Animal Lady has given up on changing her Patreon name, just take my money. Well, we will take your money, but you might want to consider, keep changing, what if a lie couldn't be repeated, the Canonical Debate could make that possible, check out at Canonical Debate. Oh, that, you've, you have intrigued me, my friend. Budget Botnist, yay, on Fiverr suspect, you all killed your pandemic plant purchases, I forgive you. Please offer any suggestions for a podcast that would read my Patreon name weekly, asking for a friend. All, hey, you know, once a month is still, is still pretty good. Academic Dispute, R instant target creature must block this turn if able, you may have it, gain reach, learn, Thomas

1:06:28 Thomas: Already said last time, I didn't know it, change your card or tell me the solution, or something

1:06:31 Andrew: Yep. Fred Gruthius, Sparkle Donkey feels epistemologically modest in suggesting that deontologically more than a tertile quantile is retributive, I love you Sparkle Donkey Tequila. Oh, Ranis, Smart Cookie Cutters listener, Thomas F, is anyone else concerned that in about a year Republicans could permanently take control? Yeah, we are, that's the whole point of the show. I like my pork streaks paired with at Casa Agria and at Emperor's Brewery Beer. GDT says everyone knows that the police can't arrest you without, page two of two, your consent, Maritime Laws Freedom Menu, Bengazi and the Buttery Males Storm the Fort, teaser for Hall of Fame shout-outs, Les Deux Lesbiennes Fabulo, Supreme Court Justices should have 18 year term limits, and so should, Conrad Michaels, Jennifer Tchaikovsky, for April Fool's Day I propose switching the order of the quartiles, beats the hell out of your My Cousin Vinnie joke. Anyway, yet we still get Occasional Yeah.

1:06:32 Thomas: Uh Yeah Right That's

1:07:32 Andrew: That was beautiful. No. We Still do get occasional, like, complaints and one person who angrily who quit Patreon because they thought we were depriving them of My Cousin Vinny Content. My Cousin Vinnie, just to reiterate it here, My Cousin Vinnie is almost the perfect movie. We will never, ever do it for real on Lawed Awful Movies.

1:07:33 Thomas: An unbeatable Joke, yeah Yeah Perfect Movie Yeah It's Not called Laud Perfect Movies, it's called Laud Awful Movies, all

1:07:53 Andrew: Yeah. Edgy Veggie, we have legal advice. If ye have coin, do not take legal advice from a coin. And Evie Huntington, Harvard alum, no hood, take it away, Thomas. Hummus I

1:08:03 Thomas: Right, thank you. Too, John Brown did nothing wrong, Elect Thomas Smith President, American Honkytonk Bar Association, Don Quicks, oh don't laugh, Half Donkey Hardy may deliver you a swift kick in the ass, I learned the name in a book, okay, Alpha Kenny Body, Dog-Haired Shirts, Peel Brian K, the Books That Burn podcast, currently reading River of Teeth by Sarah Gailey, interesting, Angry Mac Face, Pablo Escargot's Heroines Nails, but now it is Glad Sydney got sanctioned for Terpsichore, this is not the greatest patron name reading system in the world, no, this is just a quartile, uh, April Poff, Reptilian Cotillion, what do you get when you put Cardi B in a 90s police musical, rap rock, I love it, they said you know, I mixed, missed Coke with rap Rocks one time, uh, they said I couldn't be anything, so I became someone who remembers to change their Patreon name once a month, nice It's already the second quartile, and I don't have a Patreon name, wow, two opposites there, uh, Learned Handjob, the Dows Dallas Da, John Cruzo Owes Justice to Diamond Ross, wishing my wife a happy birthday and my friend's daughter a happy just-birthday, oh, congrats, Jake and Big Gabe Owner

1:08:52 Andrew: I would watch that oh good work nice

1:09:25 Thomas: Right, thanks So much, second quartile, and

1:09:26 Andrew: And

1:09:29 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:09:35 Thomas: Now it's time for T3B, Thomas Tries to Be Ethical, answer time, and uh, you know, I had some help, I had Andrew Seidel backing me, me up on this one, uh, Andrew, thank you for joining us again that's

1:09:44 Seidel: I mean I listen I didn't help I didn't you did it all on your own moral

1:09:46 Thomas: True that's morally I just mean like yeah for my own like what yeah exactly let's find out maybe we're both completely unethical lawyers we don't know uh we'll have to get the answer here all

1:09:51 Seidel: Support ethical support ethical support yeah yeah

1:09:50 Clip: Ethical. Support. There. We go so. Uh, this was uh, the case of uh, one party is represented by council but the opposing party is not, right? Here Here, it's a child custody dispute. It does not matter, that's all irrelevant to the question. The question is, can an attorney go communicate with a party that is not represented by counsel? And if so, what can that attorney say, right? Here, the attorney representing the mother met with the unrepresented father, presented a proposed arrangement and said, "Hey, we'd like you to agree to this." The father, the opposing party, not represented by counsel, says, "Is this a fair deal for me?" And the lawyer says, "Hey, look, I can't answer that. That's a legal question. Go hire a lawyer if you want an answer," and did not offer any other advice.

1:10:46 Clip: The father hired a lawyer and that whole matter blows up. But now, you know, rather than just having an easy arrangement wound up being antagonistic, went to court. Is the attorney subject to discipline? I'm going to cut to the chase. You guys went with C. No, because the attorney offered the father no advice other than to hire his own lawyer. And that is exactly right.

1:11:09 Thomas: Right There.

1:11:09 Clip: This is an example of rule 4.3 of the model rules of professional conduct. Right. There are restrictions on what a lawyer can do when the other side is not represented by counsel. And the reason for that is because there are people who say, oh, you're the lawyer. You must be dealing with you must be accurately describing the law. Boy, I wish there were more people that had Had that view, uh, but, but the idea is, right, you don't want to, you don' want to apply your trade in such a way that, implies that you are giving impartial legal advice to somebody who doesn't have a lawyer. So the rule says, um, the lawyer, uh, dealing with a person not represented by counsel shall not state or imply that they are disinterested, right?

Should, should state, and and this is my practice all the time, this comes up and I will say, hey, you should know I represent the corporation in connection with this, we're right? Going to ask you to sign this contract. You should feel free to consult a lawyer before signing this contract. And then it says that the lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel if

1:11:36 Thomas: You

1:11:09 Seidel: My

1:12:21 Thomas: Go.

1:12:21 Clip: The Lawyer knows or reasonably should know that the interests of such a person, person, are or have a reasonable possibility of being in conflict with the interests of the clients. So direct, carve out, hey, talk to a lawyer, which is the...

1:12:30 Seidel: Pleasure

1:12:35 Thomas: This. Was the question our Show was designed for me to know it's all coming together. Our show is born to answer. Answer this question. I love it. Andrew Seidel, congrats. We're both so ethical. Thanks again for joining us for both last episode and this T3BE answer. We did it.

1:12:36 Clip: Exactly.

1:12:53 Clip: Thanks for coming back.

1:12:54 Thomas: Right. Well, let's find out who our big winner this week is.

1:12:52 Seidel: Gents it's always fun

1:12:58 Andrew: Well, Andrew and Thomas, this week's winner is Low Hanging Keyboards on Twitter, who writes, T3BE, I've got to agree with Thomas. Answer C, go seek your own lawyer is not legal advice, and representing both sides without both of their approvals, bad idea, is unethical. Well, that is exactly correct. Everyone, let's give Low Hanging Keyboards a follow on Twitter. That is is at LKeyboards, L-K-E-Y-B-O-A-R-D-S. And congratulations on being this week's winner.

1:13:30 Thomas: That's our show thank you so much for listening and we'll see you next time

1:13:35 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.

1:14:08 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.