OA576: Election Laws and Lies, with Lawrence Lessig

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 576, and we all definitely just heard that new intro, Andrew. How was it for you?

0:01:26 Andrew: Oh, ah, it's, was it as good for you as it was for me because it was good for me. So I

0:01:31 Thomas: Definitely. That Simpsons and or Futurama quote was amazing. We haven't heard it, but I'm sure it's great. All right. Can't wait for today's show. Lawrence Lessig back on the show. I can't wait to talk to him. And he's right in the middle of this thing with the Eastman documents.

0:01:35 Andrew: Like as always, yeah, we have no idea, we don't know. Well, yeah, I am not letting this go. So I really think that it's important to keep this out in the public consciousness. And has really changed my perspective on whether it's possible to hold Donald Trump accountable for his actions on the one six insurrection. I want to say this because I thought I was pretty clear on 574, but buddy Randall Eliason messaged me afterwards and said, You know, you should be clear on the difference between the standards for conducting an in-camera review of potentially attorney client privilege documents versus, you the beyond a reasonable doubt standard to convict the president of 18 U.S.C. 371. I thought We were.

But I want to be clear. Right. I don't think a prosecutor could go forward and a jury and jury would would would issue an indictment. Right. But I don't think a prosecution would take the case against Donald Trump right this second. There's still, in terms of bridging that gap between showing, you know, corruptly intended to obstruct an official proceeding, eating, right, there's some language right from Mike Pence's lawyer, um, it's damning language, um, my point is, uh, not that that case is fully formed right now, uh, but that that, uh, case is in such a position, uh, that, uh, what happened on Tuesday was going to happen, which is a court is is now reviewing 111 separate

0:02:39 Thomas: Hmm.

0:03:24 Andrew: Documents created between January 3rd and January 7th. Right. This is this is in a short period of time, while the Capitol was under siege, by John Eastman, the president, you know, then President Trump's lawyer in connection with the insurrection. And, they you all turn out to be duds, then, you know, we we got to, you his conduct to date right and we are going to talk with Lawrence Lessig about, you know, the the big lie that

0:03:30 Thomas: Yeah. Yeah, he's sure not eager for us to see what those documents are.

0:03:56 Andrew: Is true, his counsel, uh, if you didn't follow, uh, us on Twitter, it's at Open Args, I live tweeted, uh, the entire hearing, we'll link that in, uh, the show notes, um, I had a good time doing that. And I think a lot of folks enjoyed a sort of real-time translation. I linked some of the cases that were cited in that hearing. There was an interesting dynamic that occurred behind the scenes there. And that was in his pre-written portion of his speech, John Eastman's lawyer said, you know, we're totally comfortable having the judge review this in camera.

0:04:32 Thomas: Hmm.

0:04:33 Andrew: And I kind of looked at this and was like, well, then, let's you let's pack our bags and go home. Right. Like we that's that's what are we doing here? Right. And in his closing argument, my belief is that John Eastman called up his lawyer and, you know, took him to the woodshed. And in his closing argument Chapman, the lawyer said, well Well, Your Honor, what I meant was if you were to review these documents in camera, we would be confident that you would discover that they're attorney-client privilege, but we still think you ought not to review them, which is a weird walk back. Um,

0:04:38 Thomas: Yeah. Ah, yes. Yes, slightly different.

0:05:10 Andrew: Yeah, I'd

0:05:10 Thomas: I'd like to amend my previous statement to say not what I just said.

0:05:12 Andrew: Yeah, um, You know, I should be clear, uh, that what happened at that hearing, less than 24 hours later, we got a written order from the court. I, I thought we would get it, uh, at the conclusion of the hearing, but this is a judge who was being incredibly thorough, and, and I think, wanted to, you is aware of the potential constitutional, you know, earth shaking significance that this opinion may set up. And, and I think he wanted to, to make, you know, to take that extra 24 hours to dot all the I's and cross all the T's. But but here was the ruling. It said, look, Dr. Eastman has claimed privilege over in two ways with respect to these 111 documents, of those six are attorney-client communications. That tends to be what we think of as typically privileged documents, right, that is a client, let's call him Eli Bosnick, emails me with a certain hypothetical and says, hey, Andrew, is it legal if I do X? And then when I write back to Eli and say, no, this would not be remotely legal, that remains attorney-client privileged because he's asked me for legal advice

0:05:49 Thomas: Mm-hmm. Right.

0:06:30 Andrew: And I have rendered it. That's standard Attorney-client communication. That assertion is made with respect to only six of these 111 documents. The other 105 are documents over which Professor Eastman asserts the attorney work product privilege. And that's a little different. And the reason that it's a little different is that courts have recognized that sometimes attorneys do stuff that is privileged in connection with representing a client that the client might not specifically ask for. And that this occurs when you are in the middle of litigation or in anticipation of litigation. Right. So, for example, Thomas, you hire me to sue somebody for a breach of contract.

0:06:32 Thomas: Makes perfect sense.

0:07:16 Thomas: Okay.

0:07:16 Andrew: Right, and uh, we draft up the complaint, uh, our initial discussions, "Hey, can I sue, you XYZ Machinery Company for breach of contract?" I say, "Yeah, yeah, okay." That becomes attorney-client privilege. You've asked for legal advice, I've rendered it. Then after we sue them, I go through and I draft up a bunch of deposition notices, right, and I do all of the work on setting up those questions, right? I say, "Look, I want XYZ Corp to produce a corporate witness who is competent to testify as to the following things, one, two, three, four." I may not ask you for your advice on that, right, and you may not have asked me specifically like, "Hey, what can you tell me about the corporate structure? No, I'm doing work.

0:07:59 Thomas: Right. I don't micromanage everything my lawyer is going to do because I'm not a lawyer.

0:08:06 Andrew: That's exactly right. So that second area is called attorney work product, right, and the key aspect of work product is it does not have to be communication by and between a client and an attorney, but it does have to be work that the attorney has done either in connection with litigation or in anticipation of litigation, litigation. Does that make sense?

0:08:32 Thomas: Absolutely. But can it be work done trying to commit a crime, like planning an insurrection? Is that?

0:08:38 Andrew: That's It. So crimes aren't litigation. Uh, but because one, one of the things that Judge Carter did in ruling that he was going to review these documents in camera for review of privilege is explicitly sidestepped the crime fraud arguments. Right. And notice that what the court said was the that the court is going to review, first determine if a privilege existed before reaching waiver or exceptions, and by the way, the court reserves the right to apply any of the additional exceptions that were raised in the one six committee's brief, even though those were not the basis for this particular order, right? So, for example, Judge Carter's order said the court's future analysis will not be limited to its discussion of whether review of the emails was warranted, right?

So So reserve the right to say, I'm going to look through here and find that there was all sorts of criming and that therefore the attorney client privilege doesn't apply. But to get there, Judge Carter didn't want to wade into those sorts of thorny issues. Instead, court ruled, I think, quite sensibly and in a way that's going to be very, very difficult to impeach that says, hey, with respect to the attorney-client privilege matters, that protects confidential communications between attorneys and clients for the purpose of rendering legal advice. There's no confidentiality where a third party receives or generates the documents. In the privilege logs, Dr. Eastman lists several senders or recipients as attorneys or consultants. But at the hearing, I asked and you heard Eastman's lawyers say, we did not specifically provide, we do not have retainer agreements or affidavits or anything else showing that these third parties who received these communications were also hired.

0:08:42 Thomas: Yeah. Yeah.

0:10:35 Andrew: Right, that's the test. Like, if I hire an expert witness for you in connection with our lawsuit against XYZ Corp, right, I will be able to demonstrate that the existence of that agreement, right, and I will say, yeah, okay, and so then I can send around a communication that is between you and I to the expert witness. Witness, asterisk, there are certain rules and certain procedures that you follow in connection with expert witnesses, because things are discoverable that are provided to them in connection with the preparation of their report. So you would actually be careful about violating the privilege here. I just know that some of the lawyers are going to chime in with that if I don't mention that asterisks, but the principle is it doesn't violate attorney-client confidentiality for me to share privileged communications with third parties that we have engaged in connection with that litigation, right, but I can't just take your stuff and like, you share it out in the opening arguments community and be like, well, you know, we got a lot of lawyers in that community, right?

0:11:37 Andrew: And They're they're consulting on stuff. No, that, that, that officiates The privilege.

0:11:13 Thomas: Yeah. Yeah. Yeah. Okay. Yeah, yeah. Can I pause you and take a step back? I mean, he still doesn't even have a signed document saying he was representing Trump, right? So does

0:11:42 Andrew: Uh, Correct. And that came up that it

0:11:51 Thomas: That not just negate all of this?

0:11:53 Andrew: Could. Right. And remember, the court only needed to rule on Tuesday that it had sufficient reason and sufficient evidence before it to look at the documents. It reserved the right to come back and say, yeah, all of this seems to be, political you stuff on behalf of Trump. And, you Know, you haven't given us a signed engagement letter. And that engagement letter doesn't specify the full terms of the engagement. So, for example, the engagement letter that is unsigned says in connection with federal litigation, federal election litigation. So one of the questions that Judge Carter asked of Eastman's attorney was, would this cover state lawsuits and meeting with state legislators? And Eastman said, yes, it would. And the one six committee lawyer said, no, no, it definitely would not.

0:12:45 Thomas: Eastman's like, well, I can print up another one real quick that says that because just an unsigned document. Yeah.

0:12:47 Andrew: Right. Yeah. Yeah. It's all unsigned anyway.

0:12:51 Thomas: What judge? What do you want it to say? Just tell me dictate. I'll make it say that.

0:12:52 Andrew: We just Found a new and superseding engagement letter that is also unsigned. It I have wondered this out loud, and on Twitter, and to you, the way in which you would fix this is by getting an affidavit from Donald Trump. And the fact that they can't should speak volumes of the fact that nobody in court has said, "Well, Dr. Eastman, if this is your client, why not just call him up?"

0:13:08 Thomas: Yeah. Yeah.

0:13:18 Andrew: Right? We can fix this. I get that he's the former president, but he's a little less busy than he was a year ago. Get this cleared up.

0:13:27 Thomas: Wouldn't surprise me. Not not that I'd ever defend any of these people, but it wouldn't surprised me if Trump in his screwing over subcontractors kind of mindset, maybe Eastman did genuinely represent him. And now Trump is just like, well, what is in it for me to to say that now there's nothing in it for Trump.

0:13:44 Andrew: To say that you did? Yeah,

0:13:46 Thomas: So what would happen in that case if he might have a legitimate defense of like, yeah, I did. But, you know, now this guy isn't backing it up. Now, it's still dumb that he didn't get a signed engagement letter ahead of time. Right. Or

0:13:46 Andrew: Absolutely.

0:13:58 Andrew: What I would do, so yes, and again, look, people lose signed documents or people You know, whatever. If that were to happen to me, then I would an affidavit myself that says I, Andrew Torrez, represented Donald Trump. I have these are the three times I have tried to contact him. And, the response I've gotten is, you know, yeah, yeah.

0:14:22 Thomas: He's He's busy coding for his new Twitter clone that he's doing. You know, he's really a hard hat on building that thing.

0:14:27 Andrew: Not, it's not as good. But, you know look, if it, if it ultimately came down to it, and I would say, look, the client fired me, they're not talking to me anymore, they won't write an affidavit, but, you know, I can at least tell you, you know, yeah,

0:14:30 Thomas: Yeah, yeah, yeah. Yeah, Scout's Honor, I did represent him. Yeah, no, that makes sense.

0:14:44 Andrew: The scope is the real question there, right? Like, I think the court will take as conceded, right, on the basis of the conduct of the parties, Trump engaged Eastman and that there was an attorney client relationship. And I think the fact that there was a question early on in the hearing made of the One Six Committee lawyer that said, "You know, you referred to Dr. Eastman as Trump's lawyer in November, and now are you saying he he might not have even been Trump's lawyer at all?" And the One Six Committee lawyer, name is Doug Letter, sensibly said, "Well, your honor, the question is, what's the scope of that engagement, right? We're not we're not saying, you know, John Eastman didn't know the president, right? We know he was there in the war room. He was there in the Oval Office. The question is, in in what area was he engaged, and how far did that go?" And this document doesn't tell us. And also, it's not signed.

0:14:56 Thomas: Mm-hmm.

0:15:35 Thomas: Yeah, and it's written on a cocktail napkin. And it still says guilty.

0:15:35 Andrew: Yeah. And it still says guilty. Now, the second aspect is with respect to the hundred and five remaining documents that are ostensibly protected by attorney work product. Right here. The court says that the select committee argues that those documents are not protected by work product because they aimed to persuade Vice President Pence to act as opposed to advising how to pursue litigation with respect to the Electoral Count Act. And they point to the public January 3 memorandum from Dr. Eastman, and this is, this came up in the hearing, and this is just one of those, "Oh yeah, he did put that in writing," which states, this is Eastman's advice, right, the main thing here is that Pence should do this without asking for permission either from a vote of the joint session or of Congress or from the court.

0:16:01 Thomas: Yeah.

0:16:28 Thomas: Right. Yeah, I saw you tweet this one.

0:16:28 Andrew: Yep. Yep. And so, if, if what you're saying is, yeah, we want Mike Pence to do this without asking for permission from the court, yeah, then we think there's not going to be any litigation.

0:16:36 Thomas: Courts won't be involved. Yeah.

0:16:41 Andrew: We think he's going to do the stuff first, and then maybe there will be litigation afterwards. But that's not a document prepared in anticipation of litigation,

0:16:47 Thomas: Okay, yeah... Devil's Advocate, do you... I mean, is there still stuff where you're like counseling your client on how to avoid being in court at all? And so, therefore, that's still privileged or something?

0:17:00 Andrew: Absolutely, That is right? One possible grounds. And so the additional ground that Judge Carter advances here is the select committee also suggests that these emails could relate to Dr. Eastman's non-litigation activities on behalf of President Trump, such as meeting with state legislators about certifying electors. Dr. Eastman's privilege logs do not indicate what litigation was anticipated. The log entries simply state that emails were made considering possible litigation or contemplating litigation. This evidence sufficiently supports a reasonable belief that the emails may reveal that they were not created in anticipation of litigation. And remember, once you look at them, then you can say, oh, these were created in anticipation of litigation, but there were instructions on how to commit crimes. So they are definitely not covered by the attorney-client privilege.

0:17:14 Thomas: Right. Yeah. It just seems like we've got 1100 belts and suspenders on it. Like this is they're going to see this, right? Did they already rule that way?

0:17:53 Andrew: Oh, yeah. And so the judge is looking at these documents now. There are only 111 of them. That doesn't take that long to read. So I think by the time this comes out, probably early next week, we will see further further developments in terms of the court having gone through there. As we said in 574, there will not be a taint team. This is an in-camera inspection and the judge gets to just read over all these documents and hopefully be as horrified as we are.

0:18:01 Thomas: Yeah.

0:18:23 Thomas: All right. Right. Well, in case that wasn't enough on Eastman, we've got Professor Lawrence Lessig, who, again, had Eastman on his podcast. Lots to talk to him about. Let's get over to it.

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0:21:50 Clip: Because people have got to know whether or not their president's a crook. So you're not aware of any contacts during the course of the election? How many times do I have to answer this question? Can you just say yes or Russia is a ruse. I know you have to get up and ask a question so important. Russia is a ruse. Well, I'm not a crook.

0:22:08 Thomas: And we're now joined by Professor Lawrence Lessig. How are you doing? Welcome back to the show.

0:22:14 Lawrence: I m so glad to be here. Thanks for having me.

0:22:15 Thomas: We're delighted to have you. So this is interesting circumstances. We played a few clips from your podcast, Another Way. Everybody should check it out and subscribe, of course. And I just want to lead off with the non-lawyer type question. As the non- lawyer, I'm just wondering, how did this happen? How'd you end up with Eastman on your show? And was your goal in interviewing John Eastman on your show.

0:22:39 Lawrence: Well, first, weirdly, John Eastman, Liz Cheney, were both in my first year teaching at University of Chicago. So Eastman was an older student. I think he was the oldest student I've had. That. I knew him well then and had been on and off in touch with him since. So I knew him and I was able to reach out to him. And I just said to him, like, let's talk about this, because we had my, my colleague Matt Seligman and I had spent the fall doing a regular podcast about everything that could go wrong in the presidential election. And we, we went through a lot of things. But, you know, frankly, we didn't come up with Eastman's scheme.

0:23:22 Thomas: Wow.

0:23:22 Lawrence: So that's the one we didn' talk through.

0:23:22 Thomas: Yeah.

0:23:27 Andrew: Well, in light of, so at the time, and we talked about this on last week's episode, the At time, the way in which John Eastman went on your show and a bunch of other media outlets, including, you know, an obviously overly fawning interview that he gave at the National Review, was I interpreted that as sort of damage control from the Bob Woodward release of his initial January 3rd memorandum. The two pager that said, you tell Pence to just, you know, throw out the votes. And the crucial thing is, make sure you act before the courts get involved.

0:24:02 Lawrence: Yes.

0:24:02 Andrew: And the key aspect of the damage control that I intuited at the time, was pretty obvious was, he then released what he called the longer memorandum, the six pager, and said, "Look, like it says, I know it says here's what, what we're gonna do," uh, "but if you look at the longer memorandum that's, it says war gaming, right, it's got nine different scenarios," and uh, that was the the real memorandum that I sent around, uh, and by the way, and this is, I infer to be just now, and, and we know to be an outright lie, um, my advice was, in light of all of these war gaming scenarios, the option of having vice president Pence unilaterally make a decision, right, just make sure you do it without involving the courts, uh, was something that I think the language he used both on your show and elsewhere was, it would be foolish to do that, right, that I advised my client, the president of the United States, uh, this is a possible option, but you know, you definitely shouldn't do that, I'm just going to include it in the war gaming alternatives

0:25:04 Lawrence: Yeah,

0:25:05 Thomas: Do you, As a lawyer, do you often include, like, rob a bank as options for your client to, I don't know, get some money or something? Just say, but don't do that.

0:25:13 Lawrence: I don't like to write the long memos. I do the short ones. So I leave out the illegal stuff.

0:25:20 Thomas: Just to save ink, I guess. Okay.

0:25:22 Lawrence: Yeah.

0:25:20 Andrew: Well you know people are paying you by the hour that's good, that's that's that's responsible client management there, um, so I guess the first thing that I'm really curious about is, um, are you going to be a material witness in connection with this, right, are there, are there things that uh John has maybe said to you, you pre-recording, post-recoding, uh, that sort of backed up that that track, or did we, did we get all of it on the on the show? Yeah.

0:25:24 Thomas: Yeah.

0:25:24 Lawrence: That' right. It' only fair.

0:25:46 Lawrence: You know, I've not looked at the email exchange that I had with him prior to us recording, but I think everything was on that show. We didn't talk before, we didn't talk after. So we just turned on the recording, we started talking. So I don't think I need to worry about being subpoenaed if they want to understand it. It's for everybody to hear. But you've made the point. The critical point is that he's been trying to hide all of his advice under attorney-client privilege. And he was pretty clear that his client had authorized him to talk about it, at least on our podcast. And there was nothing he wasn't talking about on the podcast. So I think he's basically got to fess up to what he said and why he said it and can't hide behind privilege.

0:25:53 Andrew: Okay okay was the very next question I wanted to ask you, which is, uh, in connection with the California litigation, right, in which, uh, the ongoing question is whether, uh, these 111 documents are protected by privilege, there is a threshold question of, uh, is there an attorney-client relationship at all. And this, this is weird because, you, the debate keeps going back and forth over, you, there's an engagement letter, but it's unsigned. But, you know, what I've said on this show, and I'm sure will strike you as not surprising, is if I ever had, look, like lawyers lose documents, but, you know, you have unsigned documents all the time in your file because it just happens. But if I represented you, you know, Professor, I would, I would call you up and get an affidavit from you that says, you know, "Yes, I engaged Andrew Torrez on, you know, such and such a date and such and such a capacity."

0:27:19 Andrew: And that, that does not seem to be forthcoming from former President Trump in connection with having engaged Eastman. There is also an argument that is made. I don't know if you've seen it. It was made in the, um, reply brief in support of, uh, the request for Brady and Giglio material, which we we could have fun down that rabbit trail, but since it was denied, I think there's no need to pile on. Um, that basically said, um, it was not a waiver to go on Professor Lessig podcast, uh, because, because the, says is, 457 on your, four minutes, 57 seconds on your show, says, "I've done this show in consultation with the former president of the United States as my client, and he has authorized me to come on and talk about these things." And here's how Eastman's lawyer puts that spin in his pleadings.

0:28:07 Andrew: He says that talk about these things statement made during a podcast with Harvard Law Professor Lawrence Lessig quite explicitly referenced the constitutional authority of the vice president under Article two and the 12th Amendment that was discussed in the scenarios memos, not election litigation or electoral college disputes more broadly. I heard you chuckle, so I set it up. Go ahead. You respond.

0:28:32 Lawrence: Well, You know, we talked about not just the theory of the Constitution, but the theory of what they were doing. And there was no moment in the exchange where John pulled back and said, "Well, wait a minute, it, I can only talk about this in a kind of professorial, academic sense. I can't talk about it in the sense of this is what we were actually thinking and trying to get done." So I understand the distinction, and I'm sure it's high-priced lawyer who made that distinction or discovered it, but I can't believe in good faith anybody's going to think that this is anything other than just a willingness to talk about what the decision and discussions were with with the president. And, you know, I'm not an expert in waiver, but it would feel to me like that's a waiver.

0:29:15 Andrew: Struck me that way, too. So I was I think that's kind of some important color that, you know, there was no there was was no point in which, I would say it's similar to Professor Eastman's assertion of the Fifth Amendment when he testified before the 1-6 Committee, right? Like, he knows how to engage in nuance versus how to, you know, just sort Of, you know, there was a blanket assertion over everything that could possibly be connected up with, you know, potential liability. So curious how you evaluate this, a couple of different arguments, right? Because if we're going to ultimately, and should say, I think we're at the initial stages here, right, like we are at gathering information that could potentially hold the former president of the United States responsible for criminal activities in connection with the 1-6 insurrection. And something that I thought that door was shut up until a week ago. Right. And I think this is kind of opened the door on that possibility. It certainly depends on what the Eastman documents say. They are presently under review.

0:29:31 Lawrence: Yeah. Yes. I

0:30:26 Andrew: You. One of the things that really struck me was Greg Jacobs' testimony. That's Vice President Pence's chief lawyer. And he said essentially that he spent the day, January 5th, right, the day before the insurrection, in what he calls Socratic dialogue with Eastman, something with which you are well familiar, right? And that basically he got Eastman to admit that his his arguments were pretextual, that they lacked serious legal merit and, you know, that there would be not even a single vote on the Supreme Court for any of the positions that he was taking. I guess my first question is, is there nevertheless still a distinction to be made between an argument that you concede after a day of Socratic dialogue is still out there, but is nevertheless not, you corrupt or in bad faith or, you know, potential of giving rise to, you know, kind of criminal center in this case?

0:31:24 Lawrence: Think you've got to believe in good faith that it's a plausible argument that could be accepted as true. And if you believe that it is not a plausible argument and that nobody would accept it as true, it's not good faith to be making that argument, Especially in the context of a presidential election. So this is not a trick that's going to get your client out of a debt obligation. This is choosing the next president of the United States. And we saw how terrible members of Congress were in Interpreting subtle legal arguments, even the Yale-educated former law professor Josh Hawley, whose behavior was as reprehensible as anybody from a legal perspective. Perspective. So I think that when you're playing with fire like this in the middle of such an extraordinarily important If you don't believe the argument, you shouldn't be making it. If you don't believe it's plausibly true, you shouldn't be making I. And this argument, I think he understood by the end. I didn't realize it was January 5th he understood this, but certainly by the time we were talking about it, he understood that it was just not true.

0:31:58 Andrew: Yeah.

0:32:33 Andrew: Agree with that. I think kind of the linchpin of this defense is going to come down to the question of whether this is a good faith interpretation of the Constitution. In support of that, you get thrown under the bus on page 20 of that reply memorandum. I don't know if you've read this one or not.

0:32:52 Lawrence: I haven't, no.

0:32:53 Andrew: But it says, even if Mr. Jacobs' characterizations of those conversations are assumed arguendo, they do not create a criminal issue when the advice was grounded on a good faith interpretation of the Constitution. In contrast, the effort undertaken by Harvard law professors Tribe and Lessig in 2016 to encourage Trump electors to not vote for Trump was more problematic to the extent that effort encouraged conduct, which would have been contrary to state laws against faithless electors that exist in 33 states, one of which was upheld by the Supreme Court in Chiafalo versus Washington. Now, we had you on the show to discuss that lawsuit. I don't think Eastman's lawyers know that you litigated that case. But I thought I would give you a chance to just say how that strikes. You know, I'm not the insurrectionist. Professor Lessig, you're the insurrectionist.

0:33:44 Lawrence: Well, you know, first of all, we should be clear. In 2016, role in running what we call the Elector's Trust was simply to secure legal advice to any elector that was thinking about casting a vote contrary to their pledge. And remember, the objective of that effort, which was, you know, run by, you know, eventually my client, Chiafalo and others, the objective of the effort was not to flip the results from Trump to Hillary Clinton, but to shift The process into the House of Representatives so the House of Representatives could consider the fact that the winner of the popular vote was not going to be the winner in the Electoral College. And then the House of Representatives could decide what person should win. But anyway, my role was not in persuading anybody in 2016 to do anything. My role was simply to secure lawyers for people who were thinking about that.

And we set up this really elaborate structure where I would not, the people who are actually funding and directing it, would not actually know who the lawyers were talking to. So we hired lawyers.

They spoke to electors, but there was a complete wall separating us from those electors because we wanted them to believe, and it was true, that they could get legal advice on the basis of without fearing that they were going to be used or the information would be used in a way other than as their lawyer would advise them.

0:34:17 Andrew: Mm-hmm.

0:35:07 Lawrence: So I didn't advise people in 2016, but I certainly had the view in 2016 and in 17 and 18 and 19 and 20 and 21 that the Constitution, as written, certainly gave, quote unquote, electors the right to choose how to cast their vote. Now, the Supreme Court disagreed. And when the Supreme Court disagreeds, one of the most edifying, from my perspective, articles that was written was written by one of the leading originalists in scholarship, Mike Rappaport, who teaches at the University of San Diego. And Rappaport has an article titled The Disaster of Chiafalo, and basically Goes through and demonstrates how this this is completely inconsistent with the framing intent.

But, you know, the reality is the court often bends its conclusion in light of what it kind of expects the political reality demands. And I think, you know, when we were arguing that case, all of us had a sense that the last thing this court wanted to do was to acknowledge that these electors could not be locked up and put in boxes, and that they were free to move however they wanted, because I think everybody was terrified in this election in particular about the consequence of that. So when I brought the case, we raised money to bring the case. And we brought the case under the theory that this

0:35:26 Thomas: Right.

0:35:49 Andrew: Yeah.

0:36:34 Lawrence: Question should be resolved before it could decide a presidential election. And So we architected it so we could get that resolution done. And and we got it done. And what I think was interesting in that case is that the way the court decided our case actually helps you see why all of this craziness about the fact that legislatures should have the power to change the results after the election is just not plausible under the Constitution as the Supreme Court has interpreted. If electors don't have the the right to cast a vote as they see fit, then the legislatures, whose job is only to pick electors, the legislators don't have the right. To change the vote as the people see fit. So in the end, I think that Chiafalo will be authority to resist this kind of crazy independent state legislature doctrine,

0:36:40 Andrew: That

0:37:26 Lawrence: Which is developing now to demand that state legislatures are free to be hacked, however the party in power wants them to be.

0:37:34 Andrew: I hadn't thought about Ciafalo as essentially creating recognizing that there is some sort of a reliance interest in an election once conducted, right. But I but I think that argument makes makes a lot of sense and I do hope that it's read that way. And again, yeah, we talked about the Chiafalo case at great length. You were very, very clear at the time. We talked about it in 2019 that the idea was to map out the rules of the road. And you succeeded in doing that. We got in early 2020, we got the holding of that case. You guys should go back and listen if you if you hadn't heard the original episode. But but the holding in Chiafalo is that states' faithless elector laws are constitutional so that the states can bind that electors for Trump must cast Trump ballots. It seemed a little different than inciting an insurrection to me. But that's why I wanted to get

0:37:43 Lawrence: Yeah. Yeah. But

0:38:25 Andrew: Your opinion on it.

0:38:25 Lawrence: It's interesting, you know, I'm in the process of working on a book with Matt Seligman. But we have a chapter about faithless electors. And, you before 2020, before January 6, in particular of 2020, but even before the election in 2020, I think everybody was worried about the idea of electors being bribed. Always And thought that was a crazy, crazy idea because it's completely obvious you've been bribED. Like if you're a Biden elector and you vote for Trump, everyone's going to be, why the hell did you do that?

0:38:55 Thomas: Right.

0:38:55 Andrew: Right.

0:38:56 Lawrence: And you're not going to say, oh, because I finally saw the light. It's going be easy to look at your financial records and to see that, in fact, you have committed this crime and so therefore you'd be convicted of bribery. But the 2020 election and And January 6, in particular, signaled that, know, there's a lot of confidence we're placing in these people doing the right thing. In fact, you know, you can imagine a kind of lynch mob, like committee around the electors who are like, if you don't vote the way we tell you to vote, you're those are going to be consequences. And you can imagine an elector, you Know, saying, geez, this is not worth It's not worth it. So in a contested election, there's an argument. Did Trump win? Did Biden win?

0:39:41 Lawrence: The courts are still flipped. But anyway, there is a claim the election was stolen. And then the electors go to vote and they're asking themselves the question, who should they vote for? The critical hole in the Ciafalo decision is that all the court holds is that a state can direct how an elector shall vote. It doesn't say the state must.

0:40:01 Andrew: Not that they must, yeah.

0:40:02 Lawrence: And even, you know, Washington only had a fine. Colorado had an automatic replacement provision. So it still is the case that for the vast majority of electors, they could be flipped without any limitation at all. All. And whereas I was not ever fearful they would be bribed, I am actually a little bit anxious now that they could be coerced, you know, at least through a threat. And so in our book, we're actually arguing that states ought to pass right now the kind of laws that I was challenging in Colorado, because it's the only way to make sure that you can't get an elector, you know, that's basically coerce into voting contrary to how they're supposed to vote.

0:40:43 Andrew: So essentially like transferring an, I mean an 18 U.S.C. 1512 witness tampering to elector tampering. Right. That recognizing that, you know, you could intimidate or interfere or otherwise, you now.

0:40:58 Lawrence: Well, I actually think the law right now already governs that. And indeed, in 2016, Trump was threatening electors. For example, the Texas elector who declared that he was not going to vote for Trump, Trump threatened him. And that was a clear violation of the law.

0:41:02 Andrew: Okay. Sure.

0:41:15 Thomas: Oh, another crime that he did that he's not going to get punished for? Great. Fantastic. Yeah. Add it to the pile.

0:41:17 Lawrence: That, yeah, one more, because we have these cowardly chicken shit prosecutors all across the country. But anyway, when I'm talking about it, it's like Colorado's law basically says that if you vote contrary to how you're pledged, your vote is discarded and you're substituted immediately. So this is a way to make it so that the elector can't vote contrary to the pledge. Now, there's a really important hole in that, which was kind of terrifying in the lead up to this last election, which is that law in some states is not contingent on whether the candidate is still alive.

So if Joe Biden had died between election day and the day that the Electoral College voted and the Eldred and the Ciafalo decision was in force, then you would have a whole bunch of electors who would have had to vote for Joe Biden, even though Joe Biden's not around anymore. So those votes would have been discarded, easily could have gone into the House of Representatives. And indeed, I remember talking to the people in the Biden campaign about this because didn't realize this at first, but I was like, you really need to be careful here because Because this is the one window that survives to actually flip the result. And I was going to write an article about it, but I was like, no, this is not the

0:41:36 Andrew: Right. Oh, I see.

0:42:34 Lawrence: Sort of thing to write an article.

0:42:34 Thomas: Yeah.

0:42:34 Andrew: Let's not let's not give them an idea. I imagine that, practically, what would happen if the candidate, you know, were were to die between the election and the count, you know, is that those electors would just vote for Kamala Harris, would vote for the vice president. But there doesn't seem to be a constitutional infirmity with just voting for the deceased candidate and then immediately invoking the 25th Amendment. Right.

0:42:35 Lawrence: Well,

0:42:35 Thomas: But

0:43:00 Lawrence: The problem is vote for the deceased candidate is not a valid vote. That was determined in the Greeley election. So those votes are basically lost. And so then you can not get to 270. and if you don't get to 270, it throws it into the house. So this was a path to throw it into the house and we actually did the calculation. It was a clear path to throw it in the house, and then after the election, I wrote an article that was, you know, we tried to actually publish, a student and I, in every single state where this problem exists to say, look, you guys have got to fix this, but of course, nobody's going to fix it because, you now, they've got other important things, wokeness to worry about.

0:43:09 Andrew: I See, I Right. Okay. Well, we we could have you back on for another couple hours to talk about what's going on in Florida and Georgia and, uh, yeah, but, uh, no, that's that's interesting. I was thinking that the the problem would be that some of the states would be, you know, would vote Biden, and and some would, uh, and some would vote Harris, and then you you get thrown into the the House that way. But I hadn't realized that the the Greeley decision means that the Biden votes are invalid.

Okay, I want you to evaluate this argument for me, because I'm having a little bit of difficulty with it, and again, keeping in mind, you know, my transparent goal is, uh, you know, how do we work around the ultimate Trump defense of, "No, I believed, you know, that I won," by the that that 300 million people voted for me, and that, you know, Dominion sent votes out to Venezuela to be converted into whatever. And Right. I think that the argument of the guy who had your ear knew that this was nonsense is a decent argument. Right. It doesn't get us all the way there,

0:44:20 Lawrence: Mm-hmm. Mm-hm. Mm-hmm.

0:44:38 Andrew: But it's a decent agreement. Greg Jacob makes a more subtle argument. And I'm curious your thoughts. So Greg Jacob describes in his deposition what he calls the pivot in Eastman's approach. Right. And he says, look, on the morning of January 5th, Eastman is still coming. He's written the first memorandum. It says, here's what we should do. And here's what we shouldn't do is throw, you know, have Pence throw out the votes in seven states that reduces the electors down to 220 and then Trump wins 232 to 220.

0:45:17 Lawrence: But nobody wins because it goes to the House, right? You have to get 270.

0:45:19 Andrew: Well, That's his, there are two sub war games under that. One is is uh among the valid votes there is now a majority right because if they're invalid votes, yeah.

0:45:24 Lawrence: I see. Oh, I see, right. Now the majority, right, right-right-right. Sorry.

0:45:31 Andrew: No, no, no, it's I, it took me a while to get through, um, but yes, he says, as a backup, if, if they are still considered a pool of valid votes, that puts us in the House. And hey, you know, we control 26 uh state legislatures in the House, so uh, which you know they did at the, they do at the time. So system. So then describes a pivot over the course of that day of January 5th. He says, look, I had Socratic dialogue. I spent hours arguing with Eastman. I got him to admit that this was all nonsense. And so by the morning of January 6th, the day of the insurrection, Eastman's argument had pivoted to, well, don't throw out the electors, but just this was the position Ted Cruz staked

0:45:31 Lawrence: No, you're right. Yep. No, no, no.

0:45:43 Lawrence: Mm-hm. Mmh. Mmhm.

0:46:17 Lawrence: Right. Right, yep.

0:46:18 Andrew: From the Senate floor. Just say, hey, we need a 10 day break here. We need a pause to go back and, you know, maybe the cow will sing or whatever. Let's let's rule it that way. And Jacob's argument is the pivot has no legal significance. Right. And Eastman was clear. This is a lesser option only because it seems less extreme. But from a legal perspective, it still is contingent on Mike Pence gets to decide if slates of electors are valid or not. How do you evaluate that in terms of the the pivot, whether it is a lesser option, whether it provides kind of a, you know, a safe harbor for, you know, or something for for for Trump to scurry under? What are your thoughts?

0:46:59 Lawrence: Well, we have to unpack the status of the Electoral Count Act first. So if the Electoral Contact is constitutional, which I think it is, but if it is, then this is just as illegal a move as deciding to break up into groups of 10 and have each of the groups of 10 decide who the president should be. Because the Electoral Count Act has no such procedure. I mean, it has a procedure for governing these electors. And we should be clear about the clarity of the act as to this precise scenario. There was only one slate of electors that had been certified under Section 6 by the governor of each state for all 51 jurisdictions.

There's only one slate of selectors, which under the Electoral Count Act means that Congress has no right to reject that elect slate, period. The Electoral Contact doesn't have any qualification about unless you think there's some problem with what happened in the election. The only qualification is so long as the votes are regularly given. But this is the idiocy that Hawley and Cruz engaged in multiple times. By votes, the Electoral Count Act is not referring to the voter. The Electoral Contact is referring to The Electors. So there's no doubt that The Elector's vote was regularly given because all of them were Biden electors and they all voted for Biden. What could be more regular than that? I mean,

0:47:19 Andrew: Right. Right.

0:48:25 Lawrence: You know, they gave the vote on the right day.

0:48:25 Thomas: There were bags of electoral votes that they found in the garbage.

0:48:29 Lawrence: That's right. The electoral votes that were stuffed. Right. So the point is, there was literally no legal basis at all, even to object. I mean this is the part that I tried to get Holly to have a conversation about this because it's just crazy. There's no basis to object if there's one slate that has been certified by the governor and there is no ground to believe the votes were not regularly given.

And there certainly is no basis to say, and, oh, by the way, we're going to take a 10-day recess now so that the states can decide whether, in fact, what they had already certified they want to continue to certify. So that whole process is outside the realm of the law if the Electoral Count Act is constitutional. Now, Hawley and Cruz and the president at this point was not arguing the Ele electoral Count Act as unconstitutional. Unconstitutional. Gohmert did in his—they weren't. But if the electoral count is unconstitutional, then I think it's a harder question? So the Electoral Count Act is unconstitutional. That means they've just got to, don't mean harder, I mean more complicated question.

So the Electoral Count Act is unconstitutional. So Mike Ludd, yeah, so Mike Luttig, Judge Luttig has, you know, written a piece now saying the Ele electoral Count Act is un constitutional, kind of astonishing to me, because, you know, he was the hero on the right, that convinced the vice president that this was just crazy talk. But he's written a peace that says it's unconstitutional, that Congress has no right to do anything other than just accept what the electors votes are. And if there's a contest about it, it's for the courts to resolve. That's it, which is kind of an extraordinary grab of power by the judicial branch,

0:49:35 Andrew: OK. Yeah. Yeah. Then then we're in 12th Amendment territory. Right.

0:50:12 Andrew: Yeah.

0:50:12 Lawrence: But whatever. If that's the process, okay, once again, there were no alternative slates that any court was going to recognize over the slates that in fact were counted. So even then, they had said, well, okay, we're going to take 10 days and have the courts look at it, the Pennsylvania courts had looked at it again and again. The same in Arizona, the same in Georgia. There was no plausible basis for thinking that there would have been judicial recognition of something outside of the one that was recognized. Even if you could have gotten the courts to say, oh yeah, this law that has been governing elections for 140 years turns out it's unconstitutional. And right now, at the last minute, we are going going to develop a whole new made up procedure for how we're going to evaluate whether the election is legal or not.

0:50:54 Thomas: So like no one was really president for that whole time, maybe. Throw them all out.

0:50:55 Lawrence: Yeah, Right. I these people advancing the argument that the Electoral Count Act is unconstitutional are some of the most irresponsible constitutional lawyers that I have ever heard speak, because there's such a fundamental principle in constitutional law that if something has been practiced and and lived with, and understood, and argued over for a long period of time, we're not going to unsettle it and just flip it out and throw it out unless there's a clear constitutional textual basis for throwing it out. Now, from the first contested presidential election, Congress has presumed that it has the power to look at the electoral votes and decide whether the certifications and the votes are valid.

It. The first contested election appointed tellers. The tellers were four tellers, two from each party. They received the electoral votes that the vice president opened. He handed them to them. They looked at them. They recorded them. From the very beginning, it's been understood Congress has a role here. So to now conclude that electoral contact is unconstitutional because the Congress has no role would be the most astonishing decision in the history of the Supreme Court. And I just don't think they're going to get there.

0:52:12 Andrew: Well, I want to, I don't want to go too far down the rabbit trail, but I mean, it seems to me we have, we're gearing up to have at least five votes for the Clarence Thomas view of stare decisis, uh you know, which we saw in full force with the Janus versus AFSCME decision, right, which is, oh, if I don't like the way that a case came out in the past, uh that means that it was wrongfully decided and, uh therefore, of no precedential value. I agree with you, that's astonishing. I mean, like, you know, it makes me, me wonder why I went to law school, but but I'm I'm certainly concerned that the Supreme Court is uh gearing up for a period of right-wing activism that, uh you know, is gonna is gonna make the uh the early 1910s and 20s blush, but uh I

0:52:54 Lawrence: Yeah. I mean, Earl Warren is just going to become the most conservative justice in the history of the Supreme Court compared to these guys.

0:53:00 Andrew: He really is Yeah, I I'm with you. Let me ask you one more sort of rabbit-traily question, but I would feel remiss if we left it hanging out there. Talked about not writing the law review article on faithless electors and deceased candidates. How worried are you that pinning that this argument on lack of competing slates of electors is giving the opponents of democracy kind of a roadmap of what to do in 2024? Right. In states that have gerrymandered Republican state legislatures, I'm thinking Wisconsin, North Carolina, where, you know, it's likely that, it's at least possible that we'll have, you, a Democratic uh presidential victory, but but red control of both the governorship and and the state legislature, um, do we do about Republicans, uh just you know, the state legislature meeting and certifying an alternate slate of electors

0:53:57 Lawrence: Yeah. So the book that Seligman and I are working on is basically a blueprint for a red takeover. And it's like every single one of these arguments and like, yeah, well, I mean I, you know, there's a lot of people who said, please don't write this. But our view is let's just make sure everybody understands what the threat here is so you you can do something about it. But there are a couple of ways. And there are two things that I think are the plausible way they could actually flip a result. And There are a bunch of ways, which I think are not plausible.

So if, if, you know, let's take an election like this election, Georgia goes for Biden. And then after election day, the Georgia legislature gets together and says, hell no, we have the authority to say the manner by which electors are selected, and so we're going to select a different slate of electors, and they're going to be for Donald Trump. I think there are nine votes in the Supreme Court that says, hell no. Because though the Constitution gives the state legislatures the power to select the manner by Which electors Are Selected, it gives to Congress the power to say when the electors shall be selected.

0:54:03 Andrew: Good. Well.

0:54:05 Thomas: Can you not?

0:55:02 Lawrence: Elected. And Congress has exercised that power by saying on election day. So on election day, we select electors. And that means after election day, the states have no power to select another slate of electors because Congress has said when the slate is selected, that is election day." So that scenario, I think, is 9-0, they lose. There's a version of this, which is the law says Section 2 of what we think of as the Electoral Count Act wasn't the original act, but it's a combination of everything. Section two says that if on the day selected for election, election is failed or you fail to select electors, then the legislature can prescribe how the electores are going to be selected. That provision was originally crafted for the scenario where a state, like with the Georgia Senate election, had a rule that said you needed a majority vote to win.

0:55:55 Lawrence: And so in those states, like New Hampshire was an example of a state like that at the time, 1845, when this was considered, those states said that if you have this one-day election rule, then we're going to be thrown out if the candidate doesn't get a majority vote. So what they said is, okay, for you guys, you can have a runoff afterwards if you want. You can decide it however you want. But what we'll say is if the election fails on that day, then you have another way of selecting. There's one state, North Carolina, that has tried to implement that power after the 2000 election. And they've done it in a really terrifying way. What they've said is, the election has not yet been determined by the time the safe harbor kicks in, then the legislature gets to pick who the electors are.

0:56:44 Lawrence: And if it's not determined by the time they're supposed to vote, then the governor gets to select who the electors are. Or I might have it backwards. But the point is, they've picked these two other operators who, under Section 2, purportedly have the power to select whom the electors are. And the law says, you're supposed pick the people you think the people actually support. And that judgment is not reviewable by any court. So this is a basic way to hack the election in North Carolina.

And before the election, we were talking about the fact that maybe tit for tat, people ought to be gearing up the lawsuits to slow the process down in North Carolina, because slowing it down means you would have to select it either by the legislature or the governor. And the legislature was a session, they could not come into session unless two-thirds of the legislature so voted. So then it would have been the governor, it would've been a Democratic governor who selected it. So that whole mess, Section 2, I think is a real mess. But the really most dangerous path that exists under the existing law is this. So imagine again, in Georgia, Kemp is running against Perdue. Perdue said that Kemp made a mistake and that he would have certified the electors for Trump.

So imagine, it doesn't look like he's going to win, but imagine Perdue does win. Win. And so we're looking at 2024 and Perdue as governor in Georgia. And imagine Georgia once again goes for Biden. But Perdue says, no, that's not right. The Russians have interfered, or maybe the Russians haven't interfered or whatever. The Ukrainians have interfered. And I'm going to certify this election for Trump. So he certifies the election and it goes to the archivist. Under the rules the archivist adopted in 2020, the only slate that the vice president got to present was the slate that had been certified by the governor. So at that moment, you know, the Biden slate will be like, hey, wait a minute, we actually won this election.

And they will furiously try to get a court to order Perdue to do something differently, or they'll try to Get a court To order the secretary of state to send in another slate. But there's first of all, an issue whether the vice President could even present that alternative slate to Congress. But let's say she does present, obviously Kamala Harris does present the alternative slate of Congress.

0:58:18 Thomas: The Ukrainians.

0:59:08 Lawrence: So now there are two slates. One is for Biden and one is for Trump. The Electoral Count Act, Section 15, says that if there's a contest here, then Congress has the right to overrule the governor's certification, but only if both houses agree. So if both houses don't agree to overrule Perdue's certification for Trump, under the Electoral Count Act, Perdue's certification is the one that counts and Trump wins votes and presumptively, if this is mattering, Trump wins the election. So this is what we call the rogue rogue governor's scenario, where the governor can actually just decide to go rogue. And if he does, the law actually cements his rogue decision as a decision of Congress, unless both houses overrule him.

0:59:57 Lawrence: And obviously, in a split Congress, both houses are not going to overrule them. This is the dangerous scenario. And this is why I think so many people are worried about Congress screwing it up. I don't think the problem is people like Congress voting to throw out the legitimate electors. The problem is the default can be changed by the governor. And if the governor flips the default, then it takes extraordinary action to overcome that. And you can easily see political forces interfering with doing what the right thing would be, which in the scenario I gave you would be for Perdue to be overruled by Congress. So that's the thing we ought to be worried about.

1:00:33 Andrew: That's terrifying, terrifying.

1:00:36 Thomas: Yeah. And I'm sure there's no other things we have to be worried about. Just that one thing.

1:00:39 Andrew: Yeah. Good. Good, good reason for for Democrats to get out and vote in 2022, make sure we don't have a split A split Congress in uh in 2024, um, well, Professor Lissinger, I hope no one listens to this interview and no one buys your book, um, I'm gonna burn this, I

1:00:47 Thomas: Oh, yeah. Yeah.

1:00:58 Thomas: I got a final question. One time, Professor Lessig, percentage of your students do you think have tried to overthrow the government? I'm just curious. Lessig than 10%, I hope?

1:01:07 Lawrence: Well, I figure between, you know, we had Liz Cheney on the right side and we had Eastman on the wrong side.

1:01:12 Thomas: Yeah, that's true.

1:01:13 Lawrence: So, you Know, I think I'm, I'm probably average for, you know, the professor is sitting.

1:01:16 Thomas: So you don't think it reflects on you?

1:01:18 Lawrence: No, I don't, I don't. But, you know, if I did inspire somebody to be bold, I would be happy to take that credit. But you know I think there's not a lot of bold lawyers that are trying to overthrow the government. Eastman was kind of an exception here. And, you You know, the thing to hear in his interview, think he's deeply conflicted because he deeply believes that there was fraud. I don't think anybody possibly could believe that, but he continually wants to believe this in his head. And we know the way brains work. You can convince yourself of the most crazy thing in the world. And the part that he just will never accept is, even if you prove that there is fraud, at some point, it does not matter under our law, right? At some point, the question is, who certified and what did they certify? And so this is the part I just could never get him to see. And if you saw it, it's like this whole thing was completely for nothing.

1:02:09 Thomas: Woke professor, admits there may have been fraud.

1:02:13 Andrew: It But I, thought you did, uh, as good a job as anyone could, right? Because Eastman repeats the, like, internet Throckmorton meme of, you know, fraud vitiates everything, which again is terrifying to hear come out of the mouth of a law professor, right? But as you point out, you pointed right, out the line between, look, almost everything that you're describing, even if true. And by the way, you know, 61 courts have said not true, but almost everything that you'RE describing doesn't rise to the level of fraud in the first place.

1:02:29 Lawrence: I know. Yeah. Yeah. Right.

1:02:47 Andrew: Right. Like like accidentally running the ballots twice Or, you whatever, like that, that amounts to yeah I don't think you could have made that argument any more clear, and I think it just, you bounced off the armor, um, ah.

1:02:50 Lawrence: Right. That's not fraud. Right. Because I don't think that they'd actually focused on it. It was really astonishing. I mean, John's a smart guy, but amateur hour running the White House was just astonishing. And to read and to hear what happened in the vice president's office is actually quite edifying. I mean the seriousness with which they took this question and the willingness to actually try to figure out what the right answer is and getting the right answer. I think what Judge Luddick did was really important, and we should have confidence in the system because of people like that. But the idea that people like Josh Hawley, I mean, he's the one for all of this attention and anger. The person who we should be most furious with is Ted Cruz and Josh Hawley.

1:03:46 Lawrence: Those are the two people who created the idea, that there was something to do here when there is under the law nothing for them to have done, given there was one slate of electors that the governor had certified and there was no argument about whether their votes were regularly given. Nothing could be clearer in the law, yet here they were pretending they had the right to object to these electoral votes being counted. This is a violation of the law and a violation of federalism, for God's sake. I mean, the whole point of this system is to say that the states get to select the manner of setting electors. They get to select the electors and they get to send their votes in and count our votes. And the idea that Congress, through Josh Hawley and Ted Cruz, would stand up and say, oh, well, we don't actually trust what you've said.

1:04:34 Lawrence: And so we're going to evaluate whether we're gonna count your votes is really just insulting to the states that were processing this. So these are the people that should be getting the hate. And, and so I kind of look at this like, okay, John Eastman, everybody's hating John Eastmen. I get it. All the people hating on the electors who went through the process of like certifying their vote in case it turned out they would be counted. These are the people getting the hate. I'm like, their people should be getting the hate are in Congress. And they are the people we should be focusing our anger on because they are the person that destabilized January 6th.

1:05:09 Thomas: Don't think me, Andrew, or anyone listening, uh, needs more inspiration to hate Ted Cruz, but we'll do our best, we'll Be there for best for you, Professor Lawrence Lessig. Thank you so much, it's pleasure as always, uh, another shout out to Another Way, uh, your podcast, anything else you want to shout out while you're here?

1:05:16 Andrew: Fantastic.

1:05:26 Lawrence: No, thanks so much for having me.

1:05:27 Thomas: Oh, thank you. It's our pleasure.

1:05:29 Clip: And thank you, Let's go!

1:05:31 Thomas: And now it's time to thank our new patrons at patreon.com/law uh lots of goodies, another Law'd Awful Movies coming at you pretty soon and we've got a amazing special guest planned. Until it's recorded and I'm going to promote it, but it's going to be amazing. So all good reasons to pledge at patreon.com/law. In addition to the ad free shows, the early episodes, all the good stuff. And Andrew, it's your turn to go first.

1:05:55 Andrew: Thank you to Jason Knight, Liz Ard, like that, Connor Huntington, Chris ONeil, Sarah Hohman, Ariel Blocker, Richard Fitzgerald, Gordon Fuller, Owen Kieffer-Jones, Eric Schmidt, and Greg Daley. Take it away, Thomas, whoo!

1:06:12 Thomas: And thank you to Jessica Akers, Liberal Atheist in Small Town Kansas. Good luck. Ian Fay, Brandon Talbot @ sponsormycasket.com. That's interesting. Rue, Jon Lingrey, 19CapsFan08, Ryan Hiles, Pro-bono barracks lawyer mob boss. Don't take legal advice from the E-4 mafia. Hmm, I don't think I get that. Yeah, sorry. Reid Sanders and Lily, thank you so much.

1:06:35 Andrew: Sure.

1:06:41 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:06:48 Thomas: Now it's time for T3BE. Thomas tries to be ethical. Before that, though, surprise announcement. While recording, Andrew, baseball is back. We don't have time to talk about it, but there's an agreement. Just wanted to get your woohoo reaction to it.

1:06:59 Andrew: Woohoo!

1:07:06 Thomas: So I'm sure more on that later, but I saw just a little news update that It was like tentative agreement or something like that. So it seems like baseball is going to be back. So on that note, why don't I ace another? I'm too confident. Why don't we ace another ethics question?

1:07:23 Andrew: All right, Thomas, an attorney represented the wife in yet another acrimonious divorce Proceeding, proceeding involving issues of property division and child custody. I think they use that to set up so that, you know, you're kind of like sympathetic with the lawyer. Anyway, you go.

1:07:30 Thomas: Yeah, I just want an amicable divorce being a question, you know?

1:07:42 Andrew: After one day of trial, the husband, through his lawyer, made a settlement offer. The proposed settlement required that the wife's attorney agree not to represent the wife in any subsequent proceeding brought by either party to modify or enforce the provisions of the decree. The wife wanted to accept the offer, and her attorney reasonably believed that it was in the wife's best interest to do so because the wife resulting from the case going to judgment. Consequently, the attorney recommended to the wife that she accept the offer. Was it proper for the wife's attorney to recommend that the wife accept the settlement offer? A, No, because the attorney did not obtain the wife's informed consent to the conflict of interest created by the proposed settlement. B, no because the proposed settlement restricted the attorney's right to represent the wife in the future. C, yes, because the restriction on the attorney was limited to subsequent proceedings in the same matter. Or D, yes because the attorney reasonably believed that it was in the wife's best interest to accept the proposed settlement.

1:08:44 Thomas: Could be my first miss on this one. I who interesting question. It's not immediately jumping out to me. OK, let's see. I'm really curious what about this attorney would make the husband be like okay offer her her a settlement, but I just don't want to see her attorney ever again. Like I just get her attorney out of the proceeding. That's very, I don't know what that would be, why that would be for. I'm having trouble thinking of like what the reasoning would be. Weird. This seems like it must be an obscure thingy, like a weird rule because how often would this come up? But I don't know. So the settlement involves saying this lawyer can't represent the wife anymore after this. I brought by either party, any of that. And the wife wants to accept.

1:09:31 Thomas: Attorney reasonably believes that it's the wife's best interest because the settlement is better than potential award to the wife resulting from the case. I mean, that all seems fine, I guess. I don't know. So consequently, the attorney recommended to thewife that she accept the offer. Was it proper for the wife attorney to recommend that the wife accept the settlement offer? Hmm. I can't think Think of why it's not really. I have a hard time thinking about that. So let's see.

A, no, because the attorney did not obtain the wife's informed consent to the conflict of interest created by the proposed settlement. What is the conflict? What interests? I feel like if it was the other way, if it were like, this will require the wifeís attorney does have to represent her, then it seems like a conflict of interested because youíre getting more business later. Like you might be motivated to the wife accept because it's good for, I don't know, the lawyer as well. But this, I mean, we have in the question, the wife already wants to do so and that the lawyer believes it's in her best interest. You know, there could still be a conflict of interest. I guess that doesn't mean there can't be, but I'm having trouble knowing what it even is. Okay.

B, no, because the proposed settlement restricted the attorney's right to represent the wife in the future. So B would probably be my no answer if there's like some rule that says you can't do this. Like there might just be some rule. That's like, you can use that as a bargaining chip. Like it's not ethical. Attorneys aren't allowed to kind of do that. Maybe that's so B would be a no answer under a rule that I've never heard of.

1:11:07 Thomas: So that might be the answer. C, yes, because the restriction on the attorney was limited to subsequent proceedings in the same manner? That's possible. D, yes, because the attorney believed that it was in the wife's best interest to accept the proposed settlement. So D, oh, this is hard. I think it's B or D. I mean, D is just like, yeah, it's in the best interest and there's no problem here. I just have no, I have no basis for choosing an answer here. I think this is just a shot in the dark. I can't really, I'm trying to think of anything that would lean me one way or the other. I Think it really depends on, is there some weird rule about this? So B would be no, because the proposed settlement restricted the attorney's right to represent the wife. Is there some rule that says, don't, you know, recommend that there might be.

1:11:54 Thomas: I don't, I can't, I don't know why that would be. Like, I, I don t, I can' think of what the problem is. If anything, it's like you' being more on, you' having less of a conflict of interest because you' losing business, essentially. You' losing a client. So the fact that he would rep, recommend that, don't know. That leads me to D, I really don't know. So I think this is going to be my first ethical laugh. Wait, can I call that hotline that Andrew Seidel recommended? I should call the hotline and just, yeah, just read the question, But pretend I'm involved in it, I guess.

That would be funny. I D feels really weird because it's like, then what are we doing here? Why did we come up with all this? Like, there must be some weird rule that this is referencing, referencing. So maybe on that logic, C is like, at least something that references that rule, so that makes more sense. Think I'm gonna go with D, I, you know, when in doubt, I'm going to pick what I think is the straightforward one. Attorney reasonably believes it's the vice best interest, so I I think D is fine, probably is my second chance ethics exam, second chance ethicist, so D,

1:12:16 Andrew: Phone Phone A friend, so long as that friend is not Andrew Seidel.

1:13:00 Andrew: It sounds

1:13:00 Thomas: Final answer.

1:13:01 Andrew: Weirder. That way, doesn't It all, and if you want to play along with Thomas, you know how to do that, just share this episode on social media, include the hashtag T3BE, include your guests, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune, even fortune not guaranteed, and

1:13:01 Thomas: Yeah. Yeah.

1:13:17 Thomas: Second chance ethnicist is guaranteed to get your trolley problem correct in two guesses, in two polls of the one track or the other, they will get the ethics right. And that's our show. Another big thank you to Professor Lawrence Lessig for coming on. That was a lot of fun, very, and we will see you on Tuesday.

1:13:34 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.