OA572: Ukraine and International Law; Gov. Abbott's Despicable Attack on Trans Kids

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 572. I'm Thomas, that's Andrew. I am going to go ahead and say, not fantastic, Andrew, I am just going to make that executive decision for you.

0:01:26 Andrew: Fair. Decision. Rough 24 hours. We are recording this, finding out, I guess, about 12, 13 hours ago, as of the time of recording, that Russia has begun its full invasion of Ukraine. We are going to talk about the operative legal standards, what it means to commit war crime, to violate international law. But have friends in Ukraine at the moment, you know, communicating via WhatsApp and talking about hearing bombs in close in the distance. Um, we have, for the last show, we have 38 listeners in Ukraine, those are real people, right there, so um, if this is, if this is affecting you, um, get, safe, write to us, talk about it, we're trying to do everything we can.

0:02:14 Thomas: Yeah, it's, I mean, this day and age, it is just so weird and horrifying that you can browse social media and see everybody's first hand accounts of getting essentially bombed. I mean, I don't, I, what a world we live in. Everything that anyone's doing just seems so inadequate, you know, so at least we can learn about some of the law involved and maybe see internationally what the world can do about it. I don't know

0:02:24 Andrew: Yeah.

0:02:37 Andrew: Our job is to educate and hope we do that today.

0:02:40 Thomas: In uh less bad news uh yesterday we recorded a really fine Law'd Awful Movies and we are uh I'm working to get that we keep doing it on this like right when I record this show as well and editing both is hard uh yeah

0:02:55 Andrew: Here, have have a two hour lamb plus, you know, I don't want to go out on a huge limb, but it's possible that this episode might run a little long, you knows, today. Day yeah I mean you know you

0:02:58 Thomas: Uh yeah okay so you'll have a lot of a movie sometime in April yeah But in the meantime, if you'd like to watch the movie that we watched, it is Presumed Innocent, a Harrison Ford movie. Great cast from 1990 that neither of us had ever heard of, but nonetheless was a lot of fun. So if you want to watch that while waiting for me to finish 10 hours of editing, PresumedInnocent. You can watch it on Amazon, I think was the place that we did.

0:03:09 Andrew: Will Polarizing movie among the two of us. So you'll have to you have to wait. One of us thought it was, you Know, mostly rotten, but got fresher after having discussed it over the course of doing a lot of movies. And the other thought the exact opposite. It

0:03:33 Thomas: Ooh, yeah. Yeah. And one more announcement on the content front for us. The Q&H, it's the end of another month. What do you know? Well, it is a short one, so it came quickly. But month. Yeah. So we have our monthly Q&H that we do each and every month for patrons where they get to ask the questions. However, everybody can come join. It's lot of fun. Come hang out. Come interact on the chat. But patrons get to have a questions on the Q&E thread. And of course, please help me out by voting on the questions that you want to hear answered that just hit that little heart button. That's a good indicator to me of what you guys want to here the answer to. So patrons, make sure to do that. And the Q&A itself will be March 1st, Tuesday, March 1rd, 4 p.m. Pacific, 7 p.n. Eastern. Going to be a ton of fun. Please come follow the YouTube account if you want us to see when we go live. We also throw out the link on all the Patreon and the social media. So looking forward to that to that in on Tuesday.

0:03:54 Andrew: February's yeah And one more piece of news. Breaking today, the North Carolina court has confirmed a set of maps in connection with the dispute over North Carolina's gerrymandered political maps. That has implications for the Madison Cawthorn challenge. And we'll be talking about that next week. We too much to cover today, but that is on our radar. We will tell you what that means. We will get to that next week.

0:05:08 Clip: Down the law, down the law.

0:05:12 Thomas: Our first segment today, Andrew, is sort of a holding Trump accountable segment. What's the news on? I think the Supreme Court just slapped down again an attempt for the one six documents to be, not shared out. Didn't this already happen? What am I thinking of?

0:05:20 Andrew: So, What you're thinking is that we covered the Supreme Court's refusal to grant an injunction stopping the National Archives from turning over the tranches of documents, but they were still considering separately Trump's petition for certiorari on the merits. And because

0:05:34 Thomas: Hmm.

0:05:44 Thomas: OK, that is what I was thinking of.

0:05:46 Andrew: I love reading Supreme Court orders, particularly like pages and pages that say things like, "21-932, Trump v. Thompson, the petition for writ of certiorari is denied." That's all it says, but I happen to know what that means, and I happen to be able to share that with you, which is, that's, uh, it, that's the end. That is Donald Trump's challenge to the 1-6 committee saying that they don't have the authority to subpoena the National Archives for presidential records that the subsequent administration has validly said uh are not covered by executive privilege, and they've lost, they've lost, lost, lost, last, lost, uh, the National Archive is going to be turning over everything that it has been authorized to turn over by the Biden administration. Unambiguous good news and a good, good way to start this show, I guess.

0:06:05 Thomas: That's all, folks.

0:06:34 Thomas: Yeah, we could use it. We could use the good news. Should we, do we have any more good news, or does it turn to the bad news now?

0:06:39 Andrew: Well, so also in connection with the one six committee, we have private litigation by other, uh, potential witnesses, including the architect of the insurrection, John Eastman. We've talked about that. He's the guy who wrote the legal memo that said, you know, here's how Mike Pence can use ambiguities in the Electoral Count Act to subvert the democratic will of the people. And he has challenged the production of his documents, saying that they are attorney client privilege, that has been opposed by the one six committee on multiple grounds, including, uh, crime fraud exception, bro, uh, but, but also, right, you have multiple non-lawyers in the room that vitiates the privilege, right, this is yeah This is all over a privilege law, right?

So in other words, Eastman produced the documents that, I guess, don't make him look that bad, I don't know, uh, but has held back on about 140 documents. And what you do is you produce privilege log. It's an Excel sheet, and it says the subject of the memorandum, the authors, the recipients, the nature of the privilege. And he has turned that, as well as the documents themselves, over to the court. They are litigating it right now. I mentioned this because I keep calling out Foley and Lardner on our Twitter account. I'm going to do so every day until I hear back from them, or until my firm has got to spend its resources filing another amicus brief.

0:07:25 Thomas: Even I know that oh

0:08:15 Andrew: But Johnny Smith is lying in open court. He is co-counseled with Cleta Mitchell. You might remember her as showing up on the Brad Raffensperger call representing Donald Trump. That was a real surprise to her law firm at the time, Foley and Lardner, a, you code factory kind of firm, right, that said, "We've, uh, looked through our client list, and Donald Trump is not one of them." And, uh, Cleta Mitchell was like, "Oh, did I forget to," did yeah

0:08:25 Thomas: Yeah I just, yeah, just picked up some uh, some side yard work, you know, make a few bucks in my spare time?

0:08:42 Andrew: Yeah no that is, that is a violation of the ethics rules, it's violation of firm policy, and they fired her ass. Um, Eastman and Mitchel are now claiming that, of course, that it's, the it's The Woke Mob, and they're conservatives. And she was actually fired because, once, I guess this is technically correct, but not the best kind of technically correct. It says she was she was pressured to resign once news came out that she represented Donald Trump. Yeah. Well, yeah, because the firm was not informed of that. So, uh, that's, uh, super terrible, and, um, and they're lying in court, and nobody has the incentive to correct it. Uh, Foley and Lardner could send a letter to the court, which is what I keep tweeting at them to do, uh, if you're on Twitter, uh, amplify that tweet back at Foley & Larder. They've got a person monitoring that Twitter account, and, uh, that somebody is looking at it, so, uh, they, you know, they only have ninety-five hundred followers, like, we can, we can make a difference with respect

0:08:44 Thomas: Huh yeah that is what happened yeah for, somebody like me who has a hard time following all these names you're throwing around, the, who's Foley and Lardner specifically? I thought it was a different law firm at first that you were talking about that fired, what's her name?

0:09:54 Andrew: To that. Nope. Yeah. Foley and Lardner is Cleta Mitchell's former firm. They had to fire Cleta Michelle because of the lie. She is now saying, oh, I wasn't fired for lying. I was fired because the woke mob, you know, came after me for representing Trump. And that is a load of, you know, that's a load of horse shit. You could you could bleep it or not.

0:09:59 Thomas: Okay. Okay, yeah,

0:10:14 Andrew: I don't care. Right.

0:10:13 Thomas: No, that's fine. No, that stays in.

0:10:15 Andrew: Yeah, exactly. And it is galling. And Foley and Lardner have every reason to want to correct the record. I don't know, hold their feet to the fire.

0:10:23 Thomas: Well, then why haven't they? I was going to ask if it's the opposite and they don't really have incentive to do that because it's kind of like they, brush off their hands and they're kind of done with the situation.

0:10:35 Andrew: Let's that there is. Look, factory style law firms are inherently conservative. Right. You want to bring on the highest number of ultra wealthy clients, institutional corporate clients that you can. And so you're incentivized to kind of mumble as much as possible because, you know, who knows when it turns out that one of your potential clients is, you know, very, very liberal or very, very conservative. And you want to just chameleon your way to be like, oh, yeah, we've always liked pillows. So Like, I get that they want to have a low profile. But this but is a case in which they are being misrepresented by the architect, the legal architect of the insurrection. And I get it. Fact they'd rather just kind of be like let's pretend like this isn't happening. But they need to correct this. And if they don't, we will. Oh, we will file an amicus brief in this case. So absolutely.

0:11:23 Thomas: Yeah, yeah. Darn right we will. I'll get right on that. Yeah, I'm going to start working on it.

0:11:35 Andrew: You should. You should, absolutely.

0:11:37 Thomas: Well, that is something you would see if you followed opening arguments at OpenArgs on Twitter. There's another story here that you also tweeted about. This seems just like total bad news. These resignations Manhattan DA. What's going on here? Why did these people resign? Is this a bad sign for getting any sort of justice on Trump?

0:11:45 Andrew: Yeah, it is. This is a terrible, terrible sign. I do not want to sugarcoat it. I know I'm Optimist Prime. This is hopefully us earning our cred with you as telling it like it is So New York Times broke a story yesterday, Wednesday, that Carey Dunne and Mark Pomerantz, Those are the two line prosecutors on the Manhattan district attorney's investigation into Donald Trump for criminal tax fraud related to his real estate. The Right. New York Times is saying, right, we can't confirm this with any other source. The New York times is saying that they resigned because the incoming D.A., Alvin Bragg, quote, has doubts about moving forward with the criminal fraud case against Trump. So people are reading that and going, well, does this mean, look, even if we didn't have that bit of reporting, discount that, right?

Because we don't have a second source. That would be what I would infer from, if it just came through, Dunn and Pomerantz resign. Your line prosecutors don't just resign so that somebody who's not familiar with the case after two years of investigation can come in and take over. This means a decision, what we call a declination decision, is coming. The office is going to say, we decline to indict Donald J. Trump in connection with real estate fraud. You should be disappointed. That's a terrible decision. My best guess from behind the scenes, if you want to know, we storm right, Alvin Bragg's office, right? But my best guess is that they just couldn't flip Alan Weisselberg,

0:12:34 Thomas: Hmm. Yeah.

0:13:29 Thomas: Do you have to?

0:13:30 Andrew: That's

0:13:30 Thomas: I mean, this all, all this, these crimes seem so obvious to everybody. Looking like he exaggerates the values of stuff when he's trying to secure loans. And when, you know, when tax time comes, then all of sudden is worthless, is nothing.

0:13:45 Andrew: The argument Dunn and Pomerantz are making. So if you want to envision this like a, you know, season one Law and Order episode. Dunn Right. In Pomerance are in Bragg's office and they're saying, look, we can do this. We can authenticate these. We can go forward. It's a straightforward story. I know it's a financial crime. And, to picture, you and order is Adam Schiff, as Brad going, do you got Weisselberg? Is he going to authenticate the documents? And they're like, well, no. And he's like, all right, well then, you know, make the deal or dismiss the case. And and that would be my best estimate of of what's going on is that from the top down. You can understand from a managerial perspective the idea that financial cases are super complex to take before a jury in the first place. That's why they brought in Mark Pomerantz, right?

0:14:32 Andrew: He was not a member of the Manhattan DA's team. He was in private practice. They brought him in because of his experience in prosecuting financial cases. And can see, like, sort of of the skepticism. Of This is really, really hard to do. And and it is, right, as as somebody who has had, uh, some involvement in these kinds of cases, a challenge to do that before a jury, to right, start talking about numbers and accounting and X and Y and Z. And if you have to go to a hostile witness to authenticate 800 different documents, I, I agree, it's going to be, it's going to be a hard case to do. It seems very clear to me that Dunn and Pomerantz were like, yeah, this is going to be really, really hard, but to do it, we're up for the challenge. And, right, I think Bragg said, again, you want to be most fair to Bragg.

0:15:20 Andrew: What I would envision is him saying, right, but if we bring the case and you lose, that would be way worse than just not bringing the case at all.

0:15:27 Thomas: I'm. Tire of that being the excuse every single time with everything related to Donald Trump,

0:15:32 Andrew: It I don't agree with that decision, okay? Not, I don't defend what happened. I, I just want to tell you, right, you need to know, right. Is this the sign that Donald Trump is not going to get criminally indicted in New York? Yes, yes it is. Anybody saying otherwise, wise, is, uh, is even more Optimist Prime than I am, um. Where you want to set your sights now is Fulton County, Fulton County, Georgia, DA Fani Willis, uh, let's see what, what happens there. That is a slam dunk case, as I've said from the very beginning. So, uh, that's where I'm holding out hope. Uh, close the door in Manhattan, folks.

Have asked about, uh, the cooperation with with Tish James and the New York attorney general's office. That's a civil case. So, you know, yes, that's going to go forward. Tish James is not going to take over this investigation for a lot of reasons too complicated to kind of get into right here. And Trump is going to come out way ahead on fraud, right? Like, you know, even if they get a ton of civil penalties, it's still going to be a net benefit to him. So, you know, it's, it's kind of hard for me to get worked up over, maybe he will face some penalties in connection with that civil proceeding. If that, you, motivates you, great, uh, but no, you have a right to be disappointed here.

0:15:53 Thomas: Georgia.

0:16:12 Thomas: Hmm. Hmm.

0:16:45 Thomas: OK. Andrew, main story here. Well, co-main story, I suppose. What's going on with this Abbott letter?

0:16:51 Andrew: Texas Governor Greg Abbott sent a one-page letter to the Texans Department of Family and Protective Services that once again explains how Republicans are using trans people as a political football for cheap gain in that state. Obviously, our hearts go out to our trans listeners, to trans people everywhere. I want to tell you that this is largely political stunt. It does not mean that it's not horrible and that the people behind it are not awful human beings. It doesn't mean that from a practical perspective, I do not think that things are likely to get materially worse, other than, you know, if you're a trans person in Texas, you're already the political football, and I, and can't emphasize how angry and upset we are over that, um.

So let's explain. The letter says, in light of a recent determination by OAG opinion KP-0401, I am instructing you, the Texans Department of Family and Protective Services, as the governor, to review all of your records, to point out where gender reassignment surgery is now definitively child abuse in the state of Texas, and report that to me. The very first question you would ask is what the hell is O.A.G. opinion K.P. dash zero four zero one. And the answer is it's letter. It's a writer. It written by an idiot. That idiot is

0:17:32 Thomas: Hmm. Huh. Oh, oh,

0:18:17 Andrew: Attorney General Ken Paxton. And and so here's what happened. Under Right. Texas law, a subset of people are allowed to ask questions of the attorney general. One of them is sitting members of Congress. So right wing monster and fellow idiot Matt Krause is in the Texas state legislature. He is running for district attorney. And of course, he's doing so by demonizing trans people. Yeah, no need to mention that. So Right. He wrote to Ken Paxton and said, hey, don't you think gender reassignment surgery is child abuse? And Ken Paxton basically replied, do I ever?

0:18:20 Thomas: God. Yeah.

0:18:53 Andrew: Right. But except that even Paxton being Paxton, right, being a lying, horrible human being, the most he could do in this letter is say, well, under, it, looking at it X, Y, Z way, such treatments. Right. Quote, could be determined by a court to constitute child abuse under the quoting here broad definition of Texas's child abuse statute. Right. So basically what he says is our child abuse statue has to be construed broadly under the law and it is possible. And I'm not going to go into the odious, bigoted reasons. They're terrible. We don't you don't need to know that. Right. And so if you construe it super broadly, yes, gender reassignment surgery could constitute child abusers. What has people concerned, and I understand that, is the last page of the opinion.

0:19:41 Andrew: It is chilling. It is terrible. It talks about mandatory reporters, which would include things like school counselors, anybody who has a mandatory duty to report child abuse. That standard under Texas law, that is the Texas Family Code Section 261.101A, is, quote, quote, "If you have a reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person, then you shall immediately make a report as described in the law." Take legal advice from a podcast. You know that I am not representing you as your lawyer, but I am going to say what I believe any lawyer in Texas would tell you.

If you are a mandatory reporter and you are a pro trans, that is to say a decent human being, as a social worker, a school counselor, a mandatory reporter, for whatever reason, you do not know that any trans person has been affected by abuse. Right, that is not what 0401 says. Right, it does not say that. Uses the language sex change, but I'm going to continue to use gender reassignment surgery. Right, it doesn't say that gender, gender reassignment surgery per se constitutes child abuse. It says a court may find that. Until a court does find that, you do not know that it constitutes, quote, "has that a child's physical or mental health or welfare," quote, "has been adversely affected by abuse." End of quote.

0:20:31 Thomas: Mm hmm. OK, but also not the lawyer here. So, you know, don't you can take advice from me, even if a court did find that you I mean, come on, is this a thing that, ethically, people should be following this mandatory reporting on merely being trans.

0:21:19 Andrew: It don't I think you know where I stand on the ethics of this. I want to tell you on the legality of mandatory reporting. So I take your point, which is that even if there was a court decision, this might be an instance, this ought to be an incidence in which you would exercise civil disobedience and say, hey, not complying with that decision. There will not be court decisions that hold this. Ken Paxton is a moron. No court would so hold the reasoning in his letter is as as dumb as anything. Ken Pat and a bigoted and awful as anything Ken Paxton has ever written. OK, the question is, are you going to lose your job as a school counselor if you don't report that the trans kid that's in your class?

And the answer to that, again, I'm not your lawyer. If if you remain terrified after this, talk to a lawyer. The answer tothat is no, you will not lose yourjob over a failure to mandatory report, even under the worst possible application of this. Now, I need to say, attorney general opinion letters are binding on the interpretation of executive agencies in the state of Texas. So the reasoning, right, that gender reassignment surgery could constitute child abuse is now something that if you work in the Texas Department of Family and Protective Services, you have to do your job in light of this stupid thing that Ken Paxton has written. And again,

0:21:40 Thomas: Mm hmm. Mm hmm, well,

0:22:49 Andrew: All I can say with respect to that is, let's right, organize and turn Texas blue, Let's make right? Sure that bigots like this don't hold office anymore.

0:22:56 Thomas: Beto is running to replace him. So I feel like he's the front runner. Uh regardless whoever whoever's the uh democratic front front runner we got to get behind them

0:22:58 Andrew: Yep, yep. So I feel like that, too. Yep. Get to work. So, but in terms of, is this going to result in an immediate change? My view is that this is not going to resolve in an immediate change. I I wish I could say, you that that would remove our trans listeners, our trans friends from being the target of gross and disgusting political attacks. Nothing I can say is going to do that. But but but I do not think that we are going to have regime that penalizes you as a school counselor, as a social worker.

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0:25:42 Clip: The Russian military has begun a brutal assault on the people of Ukraine without provocation, without justification, without necessity. This is a premeditated attack.

0:25:51 Thomas: Okay, on to the main news, the invasion of Ukraine. Can you tell us about this? What's the opening arguments angle explainer on what's going on?

0:25:59 Andrew: Here's my opening arguments explainer. The principle of national sovereignty is the cornerstone of international law. And so when you say that Russia has committed war crimes and violated international law, that's the basis for saying so. When When I said that late last night on social media, I get pushback from some Of our listeners. And I get at one level, the argument that they're making, which is, boy, the US seems to have unclean hands with respect to this.

0:26:33 Thomas: Sure.

0:26:34 Andrew: We are a colonial, monstrous nation? And who are we to start talking about sovereignty? And so I want to weave together a story about one of the very worst things the United States has ever done, and bring you around to the point where that activity requires recognizing the principle that I stated at the outset, right, which is that the bedrock of international law is sovereignty. And so regardless of how dirty you think our hands are, and they are super dirt, wait till you hear the story, uh, you still need to be firmly on the side of, uh, this is naked aggression and this needs to be resisted with, uh, whatever practically we can organize, um.

0:26:34 Thomas: Sure.

0:27:16 Thomas: It's a complete non sequitur argument. I can't wait for the story of explainer. But like just logically speaking, before even getting to that, because we did bad things, therefore, there's no everybody gets to do it like we we started it. So anybody gets out? Yeah, I guess it's free for all no more sovereignty because we got away with some terrible crap. And one also, I, I think it matters who we're talking about. You know, it's one thing to say, America as a unit did all these bad things throughout the centuries. But I mean, I think that can be a little bit unfair. For one thing. Many people out there didn't support the previous, the Iraq war, other invasions, never supported it and are on perfectly fine ethical ground, wanting there to be consequences for this invasion of Ukraine. That's not, if it would be one thing if George W. Bush was like, hey, man, come on.

0:27:16 Andrew: Yeah. Yeah.

0:28:04 Andrew: Bill

0:28:05 Thomas: Then you could be like, yeah, that's a little hypocritical, George W., and maybe he is doing that. I don't know. But it's different.

0:28:10 Andrew: Crystal, Bill Crystal is doing it. He's huge hypocrite. And we have called him out as a monster, you know, throughout the duration of opening arguments. Right. We we preface that with God help me. I agree with Bill Crystal on the rare occasions where I have. So, yeah, excellent point.

0:28:18 Thomas: Yeah. It's not the George W. Bush administration anymore. It's a new administration. And furthermore, you for there to be any help for the people who desperately need it in this world unfortunately it's going to have to come from people with unclean hands because honestly who has perfectly clean hands internationally in any of this. So that's the only way. Oh, sorry, the last point I was going to make on that is that's directly Putin's argument as well. Well, his speech, his insane speech, was a precursor to this, yeah, was a litany of, and honestly, it's genius in an evil way. I mean, all he did was list the U.S.'s sins, you know, in the past and honestly is right about a lot of that. But he's relying on that in order to commit atrocities. So don't let it don't don't help them with that is all I'm saying.

0:28:41 Andrew: Yep. Oh, yeah. Yeah. The troops stormed across the border. Yeah.

0:29:14 Andrew: Me amplify that a little bit because we always get misunderstood when I make this point. I am engaging with the argument being made by some of our listeners as a good faith argument, I Right. Do get it. When So I say this, I am not dismissing everyone whose initial reaction is, well, OK, like this is bad, but like the U.S. has been bad. I don't really see why we should get involved. I am NOT immediately dismissing that as Russian propaganda. Propaganda. OK, I am taking your argument at face value. But I want to tell you this.

We know from the Senate intelligence reports that Russian troll farms right now are flooding Facebook and other social media outlets with Russian bots and individuals who are repeating these kinds of arguments. And so I'm not saying you are being disingenuous by making the argument. You may You may firmly believe it, but you are repeating the same arguments that are being employed by troll farms. And let's not give aid and comfort to our international rival that has just committed a war crime. So what do I mean by has committed a war crimes? What does it mean to violate international law? As it turns out, there's a relatively straightforward answer to what that that means.

0:29:25 Thomas: Hmm. Sure.

0:30:28 Andrew: The UN Charter, Chapter 14, describes how we know what international law is. And the answer actually kind of genius in its simplicity. Article 92, the International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed, that means attached, statute, right, which is its principles of how it works, which is based upon the previous entity, which was called the Permanent Court of International Justice in a rather amusing, like the permanent court lasted a very short period of time. But so basically, international law is whatever the International Court of Justice says that it is. OK, so how does that work? Article 93, all members of the United Nations are ipso facto parties to the statute of the International Court Of Justice.

0:31:16 Andrew: So in joining the U.N., you say we are parties to the ICJ. Article 94, each member of the United Nations undertakes to comply with the decision of the ICG in any case to which it is a party. So the ICB has jurisdiction over every member of that party. Put a pin in that one. Article 95 says nothing in the present charter shall prevent members of United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existed, which may be concluded in the future. Okay, that is just, you can find other ways to solve disagreements, right? And then Article 96, the General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal question. So that's it. There are a couple other sentences, but basically, that's how the UN says we determine what international law is.

0:32:06 Andrew: So remember that annexed statute, The right? Statute of the International Court of Justice, in turn, describes how the ICJ makes that determination, right. So, OK, the UN says international law's whatever the ICG says it is. How does the ICD determine what's international law? Well, Article 38 of the ICA says basically there are five sources that the ICJ can look at to determine what international law is. Article 38, the court whose function it is to decide in accordance with international law such disputes as are submitted to it shall apply, A, international conventions, whether general or particular, establishing rules expressly recognized by the contesting states. OK, so that is you might expect international law consists of treaties, actual agreements made by and between nations, you know, that have been properly ratified by those countries and to which they have agreed. That's sort of the equivalent of statutory law. You agreed to the Paris Accords.

The Paris Accord said you're going to reduce CO2 emissions by five percent. You didn't. You increased CO2 admissions by a billion percent. Right? You violated the express terms of that treaty. There are four other sources. B, international custom as evidence of a general practice accepted

0:32:32 Thomas: The Magna Carta. No.

0:33:23 Thomas: Hmm,

0:33:23 Andrew: As law. C, the general principles of law recognized by civilized nations. Or D, subject to the provisions of Article 59, we're not going to go into those, judicial decisions and the teachings of the most highly qualified publicists of the various nations as subsidiary means for the determination of rules of law. In other words, what do the smartest lawyers in your jurisdiction think international law means? We can use that as a secondary source. And you put B, C, and D together, and it forms a body that is called CIL, customary international law. And the important thing to recognize here is that customary international law is every bit as binding as a treaty, it is the equivalent.

0:33:24 Thomas: Yeah.

0:34:10 Andrew: It is just as valid a source of legal determination. Oh, the fifth source. I love this one. I just want to do a little sidebar on it. It says this provision shall not prejudice the power of the court to decide a case ex aquo et bono if the parties agree there to. And that's just because I love hitting you with some Latin ex aequo. I think it's aequio. A-E-Q-U-O. It's been a long time since I took my semester of Latin in high school.

But so ex aequo et bono means according to the right and good, so in other words, if the parties agree to it, they can come before the ICJ and say, yeah, do do the thing that you think makes the most sense here, which is, you know, long-standing OA principle from, uh, way back in at the, at the dawn of recorded time, 2016, August of 2016, those halcyon days. So, um, what is customary international law? The first principle of customary international law is the sovereignty of nations, right? That is, nation states stand in in relationship to each other under the United Nations in the same way that individuals stand in relationship with which other under their national governments, right?

0:35:23 Thomas: Okay. But determined by who, you is Taiwan a nation? How does the the law recognize, you and let's use a different example. Let's say, you one of the MOST red states of the U.S. decides and say they even have majority support within the state that they want to be independent. How does does international law treat that? How do they, evaluate how that?

0:35:46 Andrew: And the answer is that it is a function of how the membership views the sovereignty claims of the actor making them. So Taiwan, for example, has been the subject of litigation before the ICJ. And ultimately, the General Assembly voted to not recognize Taiwan as the legitimate government of China and to recognize the People's Republic of China instead over massive objections by not just the Taiwanese, but by other nation states, states, um, and that is a, if, you want to argue that that is a weakness of the sovereignty system, I, I'm with you, that's a weakness of the sovereign system. There is, notwithstanding Russian propaganda, there is no dispute regarding Ukraine's status as a sovereign nation, none, zero.

The United Nations has recognized Ukraine as a southern member nation, has never, never had grounds to challenge that. So that's the background. And now the story. Our story begins in 1912. The pro-U.S. president of Nicaragua, Juan Jose Estrada, resigned under pressure. That pressure being that he was basically a U.S. puppet, right? He was bankrupting, bankrupting the country by taking on all of these U.N. loans that they couldn't repay. The United States had wanted to build a canal in Nicaragua and continued to to want to do that at this time. And the populace was like, hey, man, you don't seem to be acting in our national interests. You seem to be acting in the U.S. national interest. So he resigned.

0:36:14 Thomas: Yeah. Hmm. The I'm not a historian, Andrew, but my impression of learning more about the history over the years is this same story happened in basically every single country south of us. Is that almost every in South America?

0:37:31 Andrew: This is a pretty, there's a reason I'm telling this story. Is, It you know, tale as old as time, right?

0:37:36 Thomas: Yeah, Lest anybody think this is like a one-off is all I'm saying, okay, to,

0:37:40 Andrew: Oh, no. But wait till we get to some of the details. So Estrada resigned, but his even Even more conservative and pro-U.S. Vice President Adolfo Diaz then took over. And then the Nicaraguan Congress was like, all right, fine. It's 1912. Your term expires in 1913. And under their constitution, they had the right to vote for the successor. And Right. So they picked the liberal candidate, Luis Mena. Right. The United States said, yeah, yeah. We don't recognize that decision. Why? That was not explained.

0:38:12 Thomas: Which the citizens of Nicaragua, the, must have been like, what, okay, why do we give a shit, like, what, it,

0:38:15 Andrew: Right right yeah um and uh, turned out to not be the, the greatest kind of snap decision by the U.S. because uh, Luis Mayna was also general of the army and minister of war, so, you know, he could do more than just send sternly worded crunch wraps. At the time, Diaz, right, then uh, sent a, a telegram to the United States and was like, um, hey, uh, you announced that this was illegitimate, and now uh, the general of the army is massing troops outside, and I'm pretty sure that I'm gonna get overthrown and killed. Um, and in response, the U.S. sent warships, thousands of marines. We crushed Diaz, uh, Mayna's forces, and basically ran the country for four years. Yep by the end of 1916 we managed to install a pro-us puppet uh chamorro emiliano chamorro vargas chamorro is the family name they're going to hear a lot of the the family named because of subsequent history and and I am oversimplifying here so um feel free to Feel free to write in, we got to

0:38:29 Thomas: Jeez. Sure. Andrew,

0:39:20 Andrew: Tell the story, you know, so

0:39:20 Thomas: I need you to tell word for word the last hundred years of this history in 40 minutes.

0:39:25 Andrew: Chamorro, pro-U.S. Um, shockingly, things did not stay stable during Chamorro's regime, the U.S. set more troops down in 1927, Diaz came back into power, and and and around this time, 1927, there arose a true national hero, and when I say true national, I don't mean Andrew Torrez inspired, I mean, there are statues of this guy across the country, he is the George Washington of Nicaragua, his name is Augusto Cesar Sandino. Sandino organized the resistance to the U.S. occupation, was, which a pretty significant challenge, as you might imagine.

0:39:26 Thomas: Yeah. Yeah. Wow.

0:40:03 Andrew: Um, he declared war on the United States, uh, which again, pretty impressive for a guy with an army that ranged from several hundred to several thousand, right, and so, uh, was early, uh, guerrilla campaign tactics in the 1920s, 1930s, and uh, he cast that in broader anti-imperialist terms, he brought in a uh, Honduran diplomat to be basically his secretary of state, this right is at a time in which, you know, part of our U.S. colonialist strategy was pitting these Latin American nations against one another.

0:40:06 Thomas: Right. Wow.

0:40:33 Andrew: And Sandino was also, again, outspokenly pro American. Right, never. There was zero evidence that he ever took American hostages. He vowed never to harm American citizens who were in Nicaragua. Right like he was just, you know, hey, U.S. should get out. In fact, his demands in 1927 were the resignation of the pro-U.S.-stooge President Diaz, the withdrawal of U.S. troops, and new elections to be supervised by a community of Latin American nations. Also abrogating the Chamorro agreement with William Jennings Bryan to build the canal in Nicaragua. OK, very, very important at the time was a huge giveaway to the United States.

It was terrible for the Nicaraguan people wound up not being necessary because U.S. due to the instabilities decided not to proceed with the Nicaraguan Canal but that was still a live issue 1927 guerrilla war campaign wages for six years now it's 1933 and Sandino he's now General Sandino managed to force the United States to withdraw their military from Nicaragua now he was aided by you know the Great Depression in the United States he was, was aided by the election of FDR, right, who was probably thinking about the Great Depression when cutting back on our military adventurism.

FDR implemented what was known as the Good Neighbor Policy, which officially said that we were going to be non-interventionist in the internal affairs of Latin American nations. Again, feel free to write in, I am not suggesting that FDR fulfilled that promise to the letter, I'm suggesting it marked a public shift away from, we're going to treat these as client states, right, and uh, oversaw a free and fair election, uh, that resulted in a market change from everything to date, in somebody else being named president, right, like, that's part of why Sandino was considered a national hero, right, never seized power for himself.

0:41:38 Thomas: Right. Right. Wow.

0:42:27 Andrew: Um, the person who was elected was, uh, liberal Juan Bautista Sacasa. Now, uh, U.S. is getting out, 1933, 1934, but they've been running things for two decades, and one of the things they've been running was the, the National Guard, the Guardia Nacional, which was organized, trained by the U.S. Marines. It

0:42:47 Thomas: This really feels a lot like Afghanistan in some ways, right?

0:42:50 Andrew: Really yeah the more things change so one One of the last acts of our outgoing ambassador, Matthew Hanna, was to ensure that Antonio Somoza Garcia would be appointed the director of the Guardia Nacional. He was a politically connected member of the National Guard at the time. That was 1933. In 1934, Sandino, the hero, with met incoming President Sacasa. Right. And Sagasa said, look, we'd like to consolidate power. You have a guerrilla army. It seems like you've accomplished your objectives. So you want to stand those guys down. Right. And those talks went great. Right. Sandino said, yep, I pledge loyalty to this government. Give me three months. I'm going to disarm all of the forces. And the major concession he got was squatters rights in an uninhabited.

0:42:53 Thomas: Yeah.

0:43:42 Andrew: I don't say uninhabitant, but a sparsely inhabited area of Nicaragua called the Coco River Valley, right? So, look, yeah, I've got all these, militia types here in the field, um, they're ready to, you know, roll up their sleeves and become, you farmers and homesteaders. Give them some land, uh, and we will disband the the paramilitary, uh, revolutionary forces. They were leaving those talks. It's February 21, 1934. Samosa, the U.S. appointed head of the National Guard, had six, six handpicked thugs drag Sandino and his brother and two other generals out of the car and shot them in the back of the head.

Legend has it that the assassins took Sandino's head to the U.S. government, to the CIA, as a trophy. That is not confirmed, but that is part of, how the you story is told. Somoza then sent out the orders and murdered the rest of Sandino's forces. They never got a chance to go settle in the Cocoa River Valley. And over the next two years, basically eliminated all of the military opposition, forced President Sacasa to resign. And in the 1936 election, somehow that that wound up being a nip and tuck race that Somoza won one hundred and seven thousand two hundred and one to one hundred.

0:44:16 Thomas: God.

0:44:59 Thomas: Yeah, that sounds realistic.

0:45:00 Andrew: So, yeah, right. So so Somoza then took power on January 1st, 1937. He immediately amended the constitution to centralize power in himself, and he and his corrupt family would rule as autocratic strongmen for four decades. He is the kind of corrupt monster that Donald Trump would have loved, right? And probably did. So, yeah, about this one, in World War II, Nicaragua declared on behalf of the Allies, okay, that's good, right, uh, they sent zero troops to to Europe, uh, they did get lend lease military equipment from the United States, which they use to repress their own people, uh, and and here's the real Trumpian part, Samosa was already, like Trump, astonishingly wealthy as the heir to a coffee plantation. During World War II, he had the government seize all German-owned properties in Nicaragua and sold them to himself. So by 1944, he was the single largest landowner in all of Nicaragua.

He owned 51 cattle ranges, 46 coffee, coffee plantations, basically everything of value in the country. When I tell you the percentage of the country's wealth that his family owned slightly later in the story, you will not believe the number. I had to look at multiple sources to confirm this.

0:45:14 Thomas: Wow. Oh yeah. Hmm, wow.

0:46:11 Andrew: So Somoza named himself the director of the country's largest state-owned railroad, the Pacific Railroad, and then ordered the railroad to move his coffee and beef from uh, yeah, across the country for free. Yeah, what couldn't, what's left is a great question, because what he couldn't personally steal from the land, he gave away to U.S. corporations to come mine gold, to slash and burn timber, to, uh, harvest rubber trees. Right, you know, he lacked the infrastructure to be able to, like, develop those factories. Right, you know, you can, you can seize a coffee plantation and run it with essentially slave labor, or, uh, peonies labor, uh, but you can't, build you up the infrastructure to do so. Instead, gave those away to U.S. companies who paid him personally in what were called presidential commissions. Um, he would make imports of certain goods illegal and then fund and develop the, uh, illegal entity that would then sell those goods nationally and then not prosecute them. He would take bribes from organized crime. So by 1950, yeah,

0:46:23 Thomas: Yeah. Boy, what's left? This guy's running everything. He gave everything to himself.

0:47:14 Thomas: He's like the Michael Jordan of corruption. Oh,

0:47:17 Andrew: He was one of the richest men in the world, can't last forever on that, so he, uh, was assassinated in 1956, uh, succeeded by his son, Donald Trump Jr. Um, no, his son Luis Somoza, Luis Somoza, was slightly more, slightly less, less autocratic, no less corrupt. He provided the launch point for the Bay of Pigs, for example. So the CIA called up their buddy, Somoza, trained those operatives in Nicaragua before launching towards Cuba. Luis Somoza managed to orchestrate kind of a handful of Somoza-friendly puppet rulers before being succeeded by his brother, Anastasio Somoza, a good friend to Richard Nixon. And I, think this summarizes him, his most famous quote is, "I don't want an educated population, I want oxen." Sole authoritarian, authoritarian ruler of Nicaragua. So the Somozas, is part that told you a lot, they owned a company called Plasma, plasmapheresis, plasmapheresis, true to its name, collected blood plasma from the poorest of Nicaraguan citizens and sold abroad to the United States and Europe. Half a liter of blood would sell for 35 Nicaraguan cordobas, uh, which is about five dollars at the time. The

0:48:07 Thomas: Boy.

0:48:32 Thomas: Literally bleeding their own people dry money. This is, wow.

0:48:33 Andrew: Yeah, Managua, the capital of Nicaragua, was hit by one of the most powerful earthquakes of the 20th century, a 6.3 magnitude earthquake in 1972, killed 10,000 people, injured tens of thousands more, left 300,000 homeless. There are areas of Managua today that haven't been rebuilt 50 years later, and that's largely because Somoza embezzled the funds that were sent internationally to rebuild the city, plasmapheresis continued to export Nicaraguan blood to Europe in the wake of the earthquake.

0:49:09 Thomas: Jeez.

0:49:10 Andrew: It is, I mean, literally, I cannot imagine worse villainy than this, right? So by 1975, Somoza's family controlled 60% of the economy of Nicaragua. That's a number that you cannot not imagine. Three quarters of the population could not read or write, and the handful of autocrats owned literally all of the wealth, of a majority, I shouldn't say literally all, but owned 60 of thewealth of this nation. It probably not be too surprising that in 1979, uh, they were finally overthrown by the socialist party, FSLN, the Sandinista National Front. That was named after our hero, Sandino, right? The Sandinistas. That lasted for about a year and a half.

0:49:57 Andrew: And then in the United States, we elected Ronald Reagan. Ronald Reagan's CIA immediately organized and began training revolutionaries to overthrow the democratically elected FSLN. These were the Contras. Contra meaning against, right. And this, again, I cannot not tell you strongly enough was pure imperialism right the fsln Held an election in 1984, they won, the U.S. did not care, we sent guns, we sent money, we sent training, we sent officers. That training included explicit instructions to the Contras as to how to carry out targeted assassinations against judges, police, governmental officials. It is as corrupt, as terrible, as bad as you can think. And then we hooked up the Contras with a well-known drug trafficker working for the CIA, and Contra run drug gangs sold crack in the United States in order to fund their efforts in Nicaragua. I'm not going to talk about the Iran Contra scandal, because this is already going so long. Addition to all of that, from January to March of 1984, the CIA secretly mined three harbors in Nicaragua.

0:50:16 Thomas: Yeah.

0:51:04 Andrew: These are the three largest ports in the country. Those mines disrupted Nicaraguan shipping. They had no idea where they were, right? So the country couldn't export goods. Goods, seven, um, vessels, uh, were damaged. Um, Nicaraguan fishing boats would blow, would up when they would hit the mine, you know, so we just killed, you know, Nicaraguan fishermen out there. Yeah, you want a tiny bit of nostalgia, um, The mining was actually opposed by some Republicans, including Senator Barry Goldwater, who very famously went to the floor of the Senate. He was the chair of the Synod Intelligence Committee at the time. When he read the report, he went tothe floor ofthe Senate and said, "I am pissed off." Back back when things would matter.

0:51:40 Thomas: Wow, but it didn't matter. I mean, they all got away with it. Reagan still revered to this day.

0:51:47 Andrew: Thought and talked about appointing a special prosecutor under the old special prosecutor statute to determine that violated U.S. law. That went nowhere once Ronald Reagan won 49 states in reelection in the 1984 election. Finally after 72 years nicaragua went to the united nations They got a ruling, the UN ruled against the U.S. on 15 counts, ordered the U.S. to pay reparations.

0:51:59 Thomas: Yep. Hmm. Yeah.

0:52:15 Andrew: And the basis of that ruling was that the United States breached customary international law by violating the sovereignty of Nicaragua, and then those 15 counts were the multiple ways, right, that we violated their sovereignty of

0:52:28 Thomas: Did it just cap out on 15. They're like, we max, there's plenty more, but we're just, it's, there's a cap. Wow.

0:52:33 Andrew: Of course, right, training the Contras, laying the mines, uh, the sub activities, uh, that relate to that. Um, it was, uh, extensive and damning. And the United States under Ronald Reagan responded by saying, yeah, we're not sure that the ICJ has jurisdiction over us. And the ICG said, oh, yeah, no, we definitely do, like, that's, that's, that's question for us to decide, uh, and we decide what we do. And we were like, okay, well, agree to disagree. Uh, then the UN Security Council passed multiple measures, uh, enforcing the judgment that the U.S. vetoed. Finally, it went to the floor of the United Nations itself, right, and that vote was, 94 to three.

0:53:19 Thomas: Yeah.

0:53:19 Andrew: The three votes to the contrary were the United States, Israel and El Salvador, which had a right wing puppet dictatorship that we had successfully managed to prop up. In an illustration, like, I could tell the El Salvadoran story and it would be similarly horrible. Right. So 94 to 3, you know, so not not exactly a great spot for the U.S. to be in. To this day, we have declined to recognize the authority of that judgment by the ICJ. So I take principles away from that. The first is hard lesson.

And that is it is very, very difficult to hold a member of the U.N. Security Council accountable under international law. Right. What we did in Nicaragua was indefensible and horrible and wrong. And if I were president, I would immediately order reparation. Right, that we comply with with that rule. Um, going to be tough, it is going to be unbelievably hard to hold Russia accountable for their naked aggression in Ukraine. But if you think what the U.S. did in Nicaragua was wrong, the legal grounds for that was the violation of the sovereignty of Nicaragua, right, nothing else. There's... there's no other violation of international

0:53:32 Thomas: Wow. Sure.

0:54:33 Andrew: Law upon which you can hang your hat. And if you think that nations are sovereign, that deserve not to have an imperialist power come in and say we don't like this government, we want to put in this guy instead, and we want, if you think that there is any ground for that, you have to, you have to be on the side of humanity in opposition to what Russia is doing. Here, there's no amount of, like, what about is a more like, this is bad, I agree, like, that the invasion of Iraq was, you would not find somebody more opposed to to our efforts to conflate post 9-11 and go into Iraq. It's terrible and it's awful. But one of the reasons why it's terrible is the principle of sovereignty. And that's what I just want to encourage folks to recognize and stand up for and standup for unambiguously.

0:55:23 Andrew: Are there problems with it? Hell yes, there are problems with it. You know, you asked the right question, let's right? Talk about, you know, Taiwan versus the People's Republic of China. Absolutely. OK, it is not a perfect system, but it is the system, the bare minimum that we've come into agreement that is meant to stop 70 years of atrocities like this. And, yep, go ahead.

0:55:43 Thomas: I hate to be the negatron as always, but the

0:55:46 Andrew: Negatronus.

0:55:46 Thomas: Story you told me is about how nothing happened and we just were like, uh, no, we don't recognize that judgment. Um, that's a pretty dismal picture.

0:55:55 Andrew: I'm called upon to Optimist Prime myself here a little bit. Um, decision, while we've never paid the reparations, that decision did have consequences in the way in which the United States saw itself and related to the world, right? We have not subsequently mined harbors where, where we could have, where we did, we, right, have not subsequently engaged in, uh, the same level, you know, you want to talk about, uh, the The invasion of Iraq, 100 percent agree that that was monstrous and awful.

But notice that there was zero justification given, that that at least involved I can't believe this is going to get taken terribly out of context here it involved Colin Powell committing war crimes to the U.N. Security Council. Forward, going and identifying fake maps where a baby formula factory was displayed as a known chemical weapons factory. It involved manufacturing of evidence. The fact that they had to present and manufacture that evidence, in my view, is a step forward. In Nicaragua, Right. It was just no, we don't like the the Sandinista, the ruling Sandinist government is pro-Soviet. So we're going to set up and train guerrilla warriors to overturn that, despite the fact that they keep getting reelected.

Um, again, maybe I'm too much of an international realist, uh, but to me that represents a real difference to me. That represents a, a consequence of a type, right? Not, not enforcing the judgment, uh. But, uh but changing in, in, in the recognition, uh of, of what constitutes appropriate national conduct at the kind of, yeah, okay.

0:56:38 Thomas: Do

0:57:30 Andrew: We're not going to talk about that anymore. And that is at least some progress. And so I DON'T I donT know that I endorse the idea that that it did nothing. Certainly I believe it should do more. But I But don't know that. I endorse that it's nothing. You

0:57:42 Thomas: How do you think this will be applied here, what, what do you think will happen? I, my, the questions I was going to ask you heading into this about the, uh, international law, the UN, that the framework we're laying out is okay, that's all well and good to have, uh, this law that that you described, where it comes from, how is it enforced, who enforces it, and? I know, and the veto is always a problem. There's, like, if there's enough countries, like, one or two, I know there's a problem with Israel, you know, it's always like, well, what Israel is doing is horrible to the Palestinians, but there's just the U.S., it's just a permanent veto on any consequences. How does that function here?

0:58:17 Andrew: Could kick Russia off the Security Council, for example, right. They

0:58:20 Thomas: How the hell are they on the Security Council? Oh,

0:58:23 Andrew: Possess, uh, the seat formerly held by the Soviet Union, established with the founding of, uh, the United Nations. Um, and there is a real, there's an ICJ case waiting to be had that says, um, no, the Soviet Union, that thing's gone, like, that broke up in the early 1990s. And, uh, you, we don't just transfer that out, you, like, now have, you know, the Soviet Union is a bunch of, uh, independent sovereign nations, each of which have a vote in the General Assembly. Um, in my view, represents a, a valid, uh, move forward. At the end of the day, um, establishing what the consensus of the international national community is, um, is significant, um, and I think that, uh, that remains one option. And again, if that were to go forward, you will hear the what-about-ism, right, shouldn't we also kick the U.S. off for what they didn't, yeah, like, yeah, it's not to say that anybody has clean hand. Shouldn't kick China off forwhat they're doing to the Uyghurs. Yeah, yeah.

0:58:31 Thomas: Wow. Yeah. Sure. Yes. Yeah.

0:59:20 Andrew: Yeah, it it isn't that anyone has clean hands, it is, this is a clear violation of principle number one, uh, and if we can't mobilize the entirety of the world unanimously to say we stand up to this, right, then what are we doing here, in international law, and and look, getting every nation to stand up to it, right, like Germany absolutely needs, you know, their economy is dependent, uh, upon the Ukrainian national gas pipeline. And they've said they will not purchase if Russia seizes the natural gas reserves in Ukraine. They won't buy that on the open market from Russia. Sometimes international agreements, sometimes the consensus of world nations actually does matter, sometimes. And it matters before going to World War III.

1:00:07 Andrew: I don't know, I don't mean to suggest that I have easy answers for this, but but but I do, I have the law, that's the best we can do here.

1:00:14 Thomas: Of this would have applied for Crimea as well, right, and that seemed to just happen, and then the time passed, and it's like, all right, well, I guess, I guess Russia just owns Crimea now.

1:00:25 Andrew: It's part of what I feel so urgent about that now, right, what happened in Crimea, and again, you want to talk about U.S. complicity, we've talked about this in connection, uh, that Paul Manafort, uh, and Tad Divine, U.S. political, went over to Ukraine to help elect a pro-Soviet stooge as president of Ukraine. And that complicated the issue with Crimea. It complicated the issue given the over 50% majority of of Russian origin, right, nationality in Crimea. I do not mean to suggest that these are good, but I mean to suggest that these are reasons why it was treated differently than we ought to treat the outright invasion and bombing of Kiev today. Those, those, right, fig leaf arguments. Right, there aren't even figs anymore with respect to this.

1:01:12 Andrew: And so, you know, you can't you cannot fix every historical grievance. You cannot ensure right conduct by horrible imperialist nations that include the United States. But we can fix this. Right. We can identify and go, all right, we at least agree that that this is an unambiguous violation of the bedrock, the first principle of customary international law. And and if I can get people out there to say like, yeah, look, I want to hear all the arguments we want to talk about X and Y and Z. But at the end of the day, right, this is a thing we can do something about. That's how I want To use my voice on this.

1:01:48 Thomas: Right, right, well, quite a deep dive, interesting, uh, history in there, a lot to learn, um, and yeah, well, once again, I guess, put out a call, if, if you're in Ukraine and you want to write in and let us know, uh, anything like that, you know, email us, our inbox is always open, um, and hearts go out to you right now. That is a very scary situation. Do

1:02:04 Andrew: Absolutely. You

1:02:06 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:02:12 Thomas: Now it's time for T3B. Thomas tries to be ethical, taking the ethics exam. Now and acing it. Uh, today's question is, should you invade a neighboring sovereign nation if, as an attorney, I think I'll just answer no. A no. Did I pass it?

1:02:26 Andrew: You did.

1:02:26 Thomas: Okay. All.

1:02:27 Andrew: You absolutely passed it.

1:02:28 Thomas: Right. What's our real question?

1:02:30 Andrew: Thomas, an attorney in a five-lawyer firm learned that one of her partners had charged personal expenses to a client and had fraudulently represented that the expenses were related to the client's representation. After being confronted with evidence of the fraud, the partner resigned. The attorney disclosed the fraud to the client, directed the law firm's billing department to refund the fraudulent charges to the client, and the attorney then asked the Cliant whether the the client wanted to disclose the partner's conduct to the disciplinary authority. The client did not object to the disclosure, but left the decision up to the attorney. Is the attorney required to report the partner, the partner's conduct to the disciplinarian authority? A, yes, because lawyers must report all violations of the rules of professional conduct to disciplinary authorities. B, yes, because the conduct raised a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer.

1:03:19 Andrew: C, no, because the attorney acted promptly to rectify any damage to the client caused by the partner's conduct, or D, no, because the attorney owes a continuing fiduciary duty to the partner with respect to matters that occurred during the course of their partnership.

1:03:35 Thomas: Tough one, this feels like a specific rule I need to know. I'm going to go ahead and eliminate the no answers. I think you probably do have to report the partner's conduct. I would hope that's the rule, because otherwise, you know, they just go out there, essentially the Catholic Church, the whole thing. They just go find another person to defraud. I would hope that that's not how the system is supposed to work. I think with this serious of a violation, I would hope that you're supposed to report it. So I'm gonna just eliminate the no answers and I'm gonna guess between the the yes answers. A, yes, because lawyers must report all violations of the rules of professional conduct to disciplinary authorities. That's very universal language. Could be true, but also, I don't know, maybe, so how would that not be true? Maybe if something's very minor and it's remedied really quickly, maybe you don't have to report that.

1:04:26 Thomas: I could imagine that being a way that that sort of the absolute language of A is wrong? Or B, yes, because the conduct raised a substantial question as to the partner's honesty, trustworthiness, or fitness as a lawyer. I'm going to go with B. I think that with A, there's probably some tiny, you know, there's some reasonable circumstances where it's like, all right, you brought a pen home accidentally, and so you stole a pen. I don't know, stuff like that, where it is like, okay, OK, I don't have to report this because it's it's you know, it's not substantial. But with B, it'S like, yeah, this is bad enough to where it's really raising a substantial question as to whether this person can even be a lawyer. So I'm going to go with B final answer.

1:05:05 Andrew: Right, and if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your guests and your reasons therefore, we will pick a winner and shower that winner with never ending fame and fortune. Fame and fortunate not guaranteed. Indeed.

1:05:17 Clip: And thank you, Let's go!

1:05:18 Thomas: And now it's time to thank our new patrons at Patreon dot com slash law. Hope you're enjoying the ad free shows. New patrons, the lot of movies will be coming to you within a few days as soon as I can edit all of this. And also the Q&A thread read, make sure to check that out. New patrons, uh, utilize your perks. Uh, so why don't I go first in thanking our new patrons at patreon.com/law. Thank you to Proctologists United for Kirsten's Enema. Okay.

1:05:45 Andrew: Bread.

1:05:46 Thomas: Liz Leard, Steve Proper, Jack McCann, Molly Jane Cyr, and BREAD ALERT! Okay, your turn.

1:05:57 Andrew: Alert, I like it. Thank you to Crystal M Siegel, to Alex, the trans girl who spent 37 years in denial. Well, our heart goes out to you, Alex. Uh, to Cheryl, to Sam Karch, Edward Hardy, probably not that Ed Hardy, and name, I like, I like that's, uh, that's what you have. So thanks.

1:06:06 Thomas: Wow.

1:06:17 Thomas: Sorry.

1:06:17 Andrew: Thanks. Oh.

1:06:18 Thomas: I just sent you accidentally the heading of the column. So that's not.

1:06:21 Andrew: I thought maybe somebody. Oh.

1:06:23 Thomas: We'll leave it in. I actually. Well, let's thank Name. Name absolutely could have been a patron name. It's like the Washington football team, which it should still be called, you know.

1:06:25 Andrew: I know, we're such fans.

1:06:32 Thomas: Name. Yeah. Or patron name would have been an excellent one. So thank you, Name, for being the heading of the colon that I accidentally sent Andrew.

1:06:33 Andrew: Yeah. That's that's like our tomb of the unknown soldier, right? To all of our unknown patrons. Thank you to name. Oh, and that reminds me, I, I wanted to give a special shout out, long-standing, uh, hall of fame patron, uh, Salty Seattle Driver on YouTube, uh, they had a credit card, I don't, whatever, they reached out to us, they've been a patron for a long time, so they didn't get read in their quartile, and thank you, Salty Seattle Driver on YouTube.

1:06:41 Thomas: Yeah. And that's our show. Joe, thank you so much for listening again. Oh, God, wish we for safety the in Ukraine thank you så much for listen. Great deep dive, Andrew, and we'll see you on Monday.

1:07:14 Andrew: You then.

1:07:14 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:07:48 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.