OA594: Impeach Clarence Thomas

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 594. I'm Thomas, not a lawyer, but energized. That's Andrew Torrez, lawyer. How you feeling? You feeling energized?

0:01:27 Andrew: I'm feeling energized. I'm coming back with a double dose of energy, activism, things you can do today.

0:01:34 Thomas: Love it. Well, I'll tell you, this might have been a good one to bring back the fantastic, just because I'm not, it's not fantastic news, but I'm so glad we are finally doing this episode. This is one that, it hasn't been on the whiteboard nearly as long as Eminent Domain was. Nothing will ever break that record. That is the Wayne Gretzky's points record of records.

0:01:55 Andrew: Cal Ripken's consecutive game streak, yeah.

0:01:56 Thomas: Yeah. Yes. Uh, but this is one that's, in the short ish time that it's been on the whiteboard. I have wanted it more than anything, which is as you've seen in the episode title listeners impeach Clarence Thomas. This is wow. This Is an OA that I've been waiting for. So I am fantastic that we're finally getting to it, even though this is the worst and he's the worst and Ginny is the worse, but I'm glad we're finally getting this OA deep dive.

0:02:23 Andrew: Yeah, me too.

0:02:24 Thomas: Impeach and Clarence Thomas, OA deep dive. Here we go.

0:02:26 Andrew: Yeah, so let me stake my position up front. I am not going to hide the ball here. I believe that the House should convene a subcommittee of the Judiciary Committee dedicated to investigating and impeaching Clarence Thomas. And I want to answer the two objections that you might have, that anybody listening to that might have. And in my view, those two objections would be, number one, has Clarence Thomas committed crimes? Are they high crimes and misdemeanor? Does it meet the legal standard for impeaching a Supreme Court justice?

0:02:57 Thomas: This again. Yeah.

0:03:02 Andrew: Yeah. And number two, does it matter?

0:03:05 Thomas: Will it work?

0:03:06 Andrew: Like, who cares, right? All of that. So let me hit the defeatism one first, right. Here's why you should care. If you have a House committee to investigate and undertake if the evidence supports it, which I believe the publicly available evidence already supports it. The impeachment of Clarence Thomas. That committee can do everything the 1-6 committee is doing, It right? Can subpoena witnesses. It can subpoena documents. We can find out all of the stuff that we do not presently know, because my my guess is if we know what we know, there's probably way more that we don't

0:03:06 Thomas: Yeah, blah, blah. Yeah.

0:03:47 Thomas: Yeah.

0:03:47 Andrew: Know. So benefit number one is obtaining additional information about what the most corrupt member of the Supreme Court is doing. Benefit number two is I would argue not just as kind of staking a legal principle, not just standing up for right and wrong, but I would agree that the the two impeachments of Donald Trump did practical good, right? They didn't do enough good because, right, we impeached Trump but we didn't convict him, you he's a blot on American history, um, the first impeachment persuaded Justin Amash, right? Absolutely, you know, is he no longer in Congress? He's no longer Congress. The second impeachment persuaded Adam Kitzinger and Liz Cheney, right?

0:04:33 Andrew: And that's having a real effect right now. They are, you cannot say, oh, Liz Chleney isn't a real Republican. I mean, like, you can try and say that. They have tried to say that, that's a joke.

0:04:44 Thomas: Yeah. Well, Republicans aren't real Republicans anymore. They are culture warriors for Trump. And so by that logic, she really isn't. But I see your point.

0:04:47 Andrew: Yep. Yeah. She's not a member of the, you know, uh, Trump acolytes that, you know, all gather together at the temple of doom. That's true, um.

0:05:01 Thomas: And I totally agree.

0:05:02 Andrew: I

0:05:02 Thomas: I wanted to jump on in agreement with this because talked about this with the Trump impeachments, as you brought up. Get caught trying, for one, the work for them. That was another big argument that I made in the Trump impeachment. Don't do the work of, well, he's going to get away with this. So let's preemptively not do the part where we try to make them not get away with it. That doesn't make sense. That's not how anything works. You know, like then you're, then you're complicit.

Like if you're constantly anticipating what the other side is going to do, that's basically criminal and then cowing to that, then you are part of it. And also think historically, take some of the history's worst, you know, most egregious things or presidents, you know, like if you read that, there was a impeachment drawn up because of, you let's say for example, this is definitely not true but just for example, if you had read that, like when we did the internment camps, in World War II, if there had been like an impeachment committee of that, even though it failed, completely failed, they didn't get a conviction, what would you think historically? Would you be like, oh well, they, they, that helped.

You know, you'd be like, wow, those people took a stand and history showed that they were right to be against this, and they did what they could but they didn't have the support they needed, there are too many people who let this happen.

You know, like take a historical view, get caught trying, do what is morally right, and if it doesn't work out because our system sucks and we're hostage to this partisan thing where we need 66 senators or whatever it is, 67, we're never going to get it, that's, we can't control that, like, do what, what you can with what you can control.

0:06:37 Andrew: I agree with that a hundred percent, I don't, I think that could be better stated, so I won't state anything more on it I

0:06:43 Thomas: Now I'm curious, why haven't they done this? The house is pretty progressive, right? I mean, I'm surprised this hasn't already been drawn up.

0:06:51 Andrew: I think that's right, so when I talked about this subject to other progressives, I, right, did get a kind of a pushback of, okay, uh, but really, like, you know, is there, I, and I get high crimes and misdemeanors can mean anything, and you know, but is there, really, is this the kind of thing that you ought to impeach uh a Supreme Court justice for, and and that's what I want to devote, vote the rest of the show, the rest of this segment at least, too, and that is yes.

0:07:21 Andrew: So let's talk about the three kind of areas of conduct, why they are attributable to Clarence Thomas in sort of precisely what way, and then how that fits into the overarching legal regime. So first, what are we mad at? Now, there's a lot.

0:07:39 Thomas: Oh God. Do you have time?

0:07:41 Andrew: Yeah, it's big list, but let me make sure that I'm hitting on all the things that we should be mad at, because maybe I've even forgotten stuff. But I think I've got it. I think the turning point was, of course, the discovery of text messages released by the 1-6 Committee during that brief interval in which Trump's former chief of staff, Mark Meadows, was cooperating with the 1-6 Committee and turned over 2,600 text messages. And some of them were from Ginny Thomas. And all of the ones from Ginny Tomas were super disturbing.

0:07:41 Thomas: Yeah. Yeah.

0:08:17 Andrew: So let's describe a few of those. On November 19th, so two weeks after the election, Thomas wrote to Meadows, quote, sounds like Sidney and her team, that's Sidney Powell, this is the wife of a sitting Supreme Supreme Court justice who cannot recognize, yeah, yeah.

0:08:31 Thomas: Yep. First name basis with Sidney Powell. Well, geez.

0:08:37 Andrew: Uh, and cannot recognize that Sidney Powell is a liar and a lunatic. So sounds like Sidney and her team are getting inundated with evidence of fraud, with evidence, of fraud, make a plan, release the Kraken and save us from the left taking America down. Okay. Speaks for itself, right? That is, I am buying into the claim that the election was stolen. I want America's dumbest lawyer, well, I want somebody who is in the running in the Venn diagram intersection of America's dummest lawyer and America's least ethical lawyer to, you know, get released to file all these lawsuits. And the reason I want to do that is because the left is going to take America down if we don't, By, right? You know what, passing a modest infrastructure bill.

0:09:30 Thomas: Yeah.

0:09:31 Andrew: That is sure how Joe Biden has ruined America, standing up for Ukraine and passing a modestly infrastructure bill,

0:09:32 Thomas: Yeah, exactly. It was definitely disturbing. As low of an opinion as I had of Clarence Thomas, like it is disturbing to learn that he's married to a chain email from the 2000s come to life. Like about, you know, like the just the worst conservative family member that you don't even talk to his Facebook feed, you know, like that, that, that level of, I, that's, that's surprised. That was surprising. Even to me, divism

0:09:52 Andrew: Yeah. I did not know the extent of her activism until this, so I'm with you. So I'm going to share the three text messages in total. This is the second one.

0:10:14 Thomas: Is doing a lot of work there. Conspiracy tinfoil hat in this, you know? Just, it's crazy.

0:10:16 Andrew: That's true. This is the evolution, right? So tinfoil hat here. This is now November 24th, right, so a week after that, five days later. I can't see Americans swallowing the obvious fraud, just going with one more thing with no frickin' consequences. Right. Yes, we got it. We're evangelical Christians. We can't say the F word. The whole coup, the whole coup. That's what it says. The whole coup and now this. We just just cave to people wanting Biden to be anointed. Many of us can't continue the GOP charade.

0:10:42 Thomas: Oh boy. Yeah.

0:11:00 Andrew: Yeah. I mean, how do you begin to break that down?

0:10:59 Thomas: I, and this is to Mark Meadows. You said, that's

0:11:03 Andrew: This is to Mark Meadows.

0:11:05 Thomas: What's amazing too is the way that they're talking to each other like when I talk to you andrew like we're on the same page but I don't just parrot TEXT YOU OCCUPY DEMOCRATS TALKING POINT ANDREW THE RADICAL RIGHT IT LIKE IT'S WHAT A WEIRD WAY TO INTERACT Like, this is just, this person's brain is just rotten with these conspiracies and stuff to the point where this is how they're talking.

0:11:09 Andrew: Yeah. Yeah, yeah. This is how they talk to people.

0:11:32 Thomas: This is not public facing. This is like not meant to be. This is a text message.

0:11:32 Andrew: Yeah Yeah. Oh, no, no. Was sent on January 10th. And this is, well, this was sent on January 1st. Quote, we are living through what feels like the end of America. Now, mind you, this is four days after the insurrection, after the riot at the Capitol, after the well of the Senate was breached with a guy in goat horns and, you know, an army of red hat maggot idiots looking to hang Mike Pence, kill Nancy Pelosi and stop the certification and peaceful transfer power. What bothers Virginia Thomas is we're living through what feels like the end of America. Most of us are disgusted with the VP that is are upset at Mike Pence for not stealing an election, right, are in a listening mode to see where to fight with our teams. Now, those who attack the Capitol are not representative of our great teams of patriots for DJT, exclamation point, exclamation point, amazing times, the end of liberty.

0:11:50 Thomas: Okay.

0:12:21 Thomas: Yeah. My God. I can't even handle this. I can't handle it.

0:12:48 Andrew: Yeah. Yeah. Not handling it is an appropriate response.

0:12:52 Thomas: But Andrew, someone might say, OK, this is a Supreme Court justice with a mentally highly disturbed wife who has gone down the rabbit hole of God knows what. We can't punish somebody for being married to somebody like that. Like that doesn't strike me as grounds for impeachment. The

0:13:12 Andrew: That's on the surface. But I think there are two answers to that. The first is a case called Trump versus Thompson. That's Benny Thompson. This was Donald Trump's declaratory judgment lawsuit seeking to block, among others, the National Archives from turning over records that had been declared by the Trump administration to be executive privilege, But declared by the next administration to not be executive privileged and rather trying to hide facts from the 1-6 Commission. Donald Trump sued to block the transmission of those records. We covered it on the show. That went all the way up to the Supreme Court on the shadow docket because, again, this is a request for emergency relief.

0:13:57 Andrew: And the Supreme Court, eight to one, in an opinion, in a not a per curiam opinion, an opinion authored and signed by Brett Kavanaugh to emphasize this, right? As Trumpy a justice as you can find, Supreme Courts said, yeah, that's an insane position that you have taken, Donald Trump. Executive privilege belongs to the office. And the fact that you labeled all the crimes, oh, and also this is crimes our lawyers talked about, so don't turn them over. Like the factthat you labeled those executive privilege is not determinative. What is determinative is the executive branch, because that's how this thing works. And the lone dissenting justice, Clarence Thomas.

0:14:41 Thomas: The audacity, the audacity of Clarence Thomas to be the lone dissenting justice in this case. I mean, even getting into the mind of this person, like you're not going to win. It's Eight to one. One. The only thing you are doing is signaling loud and clear, "I don't want my wife's texts to get out," or whatever. You know, like, what, just just go with the majority, be like, "Yeah, no, definitely." You're, it doesn't do anything anyway. This is crazy. This is signing your name on your crime, essentially, it seems to me. The reason that outrages

0:14:42 Andrew: Yeah. Yeah. Right. That's the thing.

0:15:17 Andrew: Uh-huh.

0:15:17 Thomas: Me so much, Andrew, is because it shows how little regard these justices can have for public opinion, for anything. And it's directly related to the ability to lie, flat out lie and gaslight about Roe v. Wade and about the history and about the law there. It's exactly related to that. The fact that Clarence Thomas can sit there and be the lone dissent on an obvious knockdown case that even the other Trumpers on the court are like, yeah, no, this is obvious, obvious, but because he's so obviously ruling and to try to protect his wife in a corrupt way, the fact that he could do that and not expect to face any consequences for that is is the same reason why Alito can write all that bullshit and we just have no choice. We just have to, okay, cool, you took away Roe v. Wade on completely bullshit grounds, there's nothing we could do about it. It's the same thing.

0:16:08 Andrew: I think that's, I think that's really insightful. I, I agree with that. So, um, where I was going to go next, uh, is in addition to, to intervene in what looks like, uh, a doomed effort to protect his wife's texts and, uh, related conspiracy theory texts from getting out to the one-sixth committee, there is also Clarence Thomas handing over judicial resources to his wife, Jenny Thomas. The first story that broke was that Ginny Thomas was there on the day of the, the One six insurrection, that started being picked up in the press, um, and she gave, you know, the Bill Clinton list of, clint, of answers, which was, you know, I went to the one-six rally but, but I didn't inhale any insurrection.

0:16:44 Thomas: She didn't inhale the insurrection yeah yeah Yeah.

0:16:49 Andrew: I didn't like it, and I left. And, you know, and literally, she was like, oh, I was cold and I left, and you know, I, okay, right, the the The, my, biggest problem with the insurrection was, you, the ambient temperature.

0:16:55 Thomas: This insurrection left me cold, let this reviewer cold, yeah. No heat. Yeah.

0:17:05 Andrew: Yeah. Right. Now

0:17:05 Thomas: They, you know, the restaurants and the outdoor seating, they got those, uh, gas powered heaters. Why didn't they have those at the inspection? Weird. She's, oh,

0:17:09 Andrew: Yeah. Ginny Thomas, to send an email to all of Clarence Thomas' past clerks. And so, again, this is an internal email list to Clarence Thomas' former clerks? They get, right, together. I don't know if it's an email list or, it was reported as an email list in Politico, which is to say it could be a Discord server. It could be, you know, any number of things. But it's way of reaching out to a curated list derives from a direct relationship to Clarence Thomas, that is, his former clerks. And she, she writes, "I owe you all an apology.

I have likely imposed on you my lifetime passions. My passions and beliefs are likely shared with the bulk of you, but certainly not all. And sometimes the smallest matters can divide loved ones for too long. Let's pledge to not let politics divide this family and learn to speak more gently and knowingly across the divide." So that was the apology that she sent out to former Clarence Thomas clerks when it got kind of bubbled back to her of, like, "Hey, not a fantastic look that you're at the insurrection." And she wrote back, and was like, yeah, OK, sure, that was my bad.

0:18:33 Thomas: Yeah.

0:18:33 Andrew: I'm real sorry about that. And between Friends, that's exactly right. And again, the important thing here is using a judicial resource for cleaning up that mess. Yes. And then the third category of stuff that, again, I've relegated this to an afterthought because there's sort of almost too much of this to mention. Jenny Thomas is on the board of a group called the Council for National Policy. The Council for National Policy has been advocating conservative stuff for two decades, but they went 100% full on QAnon in in election this past cycle and were behind a deliberate but non-public effort to reach out and ask their members to contact,

0:18:34 Thomas: What's an insurrection between friends?

0:19:22 Andrew: If they knew certain legislators in various states, to right, contact, to support the fraudulent appointment of additional alternative slates of electors after Trump lost the 2020 election. So I would say partners in insurrection, Center right? For National Policy, Jenny Thomas serves on that board. Clarence Thomas goes and speaks before them all the time. He's been a keynote speaker, right, he endorses what they do, And, you we have, again, a list that is just too long to mention on this front, right? And I wanted to parse it. The reason I want to talk about groups like the Council for National Policy and the truly extreme groups are because, you I sense that there is maybe some discomfort for just a Federalist society hack.

0:20:14 Andrew: But I would tell you, as we get into the specific standards, I think showing up and giving rah-rah speeches for the Federalist Society is also a violation of the judicial canon of ethics that we're going to get to in fact, the very next segment. So these are the three things that I think, and I'm going to persuade you by giving you the evidence in the next segment, Thomas has done that violate the judicial canons of ethics. They are, one, the failure to recuse himself in obvious conflicts of interest situation where his wife is an activist on the other side.

Number two, giving his wife, who is a political activist, access to court resources. And number three, giving fawning keynote speeches to those same activist groups where his life works, who are engaged in partisan politics on one side of an issue and in an extreme way. So what about the ethics rules? And we've alluded to this before. The ethics rules exist. They apply to all federal judges. That includes the Supreme Court. The problem is that there's no one to enforce against the Supreme Court, but it defines what constitutes ethical or unethical conduct by a federal judge, including a Supreme Court justice.

You don't have to take my word for it. At the end, right, go to uscourts.gov, I'll link it in the show notes, at the end of the Code of Conduct of United States Judges, it says, compliance with the Code Of Conduct. Anyone who is an officer of the federal judicial system authorized to perform judicial functions is a judge for the purpose of this code, subject to, and the exceptions are things like part-time judges and, you retired judges who are specially assigned and stuff like that. So that includes Supreme Court justices, right? Supreme Court justices are officers of the federal judicial system who perform judicial functions.

0:20:43 Thomas: Yeah. Jeez.

0:21:15 Thomas: No one can enforce them. Yeah,

0:22:03 Andrew: They perform the highest judicial functions, Thomas's conduct, right. Conduct, were it performed by any sitting federal judge not on the Supreme Court, would be enough to get that judge sanctioned. Absolutely, 100%. I can prove it to you. We're going to go through those canons right now. We begin, and there's only five, right? And Thomas has violated at least three of them. There's a catch-all, canon one. "A judge should uphold the integrity and independence of the judiciary." Here's how that reads. "An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved."

0:22:50 Andrew: "The provisions of this code should be construed and applied to further that objective." That's the end of it. But, like many of these ethics codes, it has a commentary section that's like, okay, man, that's a great, high-sounding, high-falutin principle. What does that mean? And the commentary says, "The canons are rules of reason. They should be applied consistently with constitutional requirements, statutes, other court rules, decisional law, and in the context of all relevant circumstances. The code is to be construed so it does not impinge on the essential independence of judges in making judicial decisions. Not every violation of the code should lead to disciplinary action. Whether it is appropriate, and the degree of discipline, should be determined through a reasonable application, and should depend on such factors as the seriousness of the improper activity, the intent of the judge, whether there is a pattern of improper activity, and the effect of that improper activity on others or on the judicial system."

0:23:48 Andrew: Okay, so that's kind of the general principle, and it says, let's read it broadly. Let's think about how often these conflicts come up. Let's think about the intent of the judge in doing so and the effect that it has. I would argue Clarence Thomas is not going to fare well by those metrics, But let's look at the specifics, okay? So canon two says, "A judge should avoid impropriety and the appearance of impropriity in all activities." Then there are sub-canons here. A, respect for law. "A judge should respect and comply with the law, and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." And B, outside influence, "A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interest of the judge or others, nor convey or permit others to convey the impression that they are in a special position to influence the judge."

0:24:05 Thomas: Yeah,

0:24:57 Andrew: Okay, that sounds bad, but maybe the commentary will exclude. No, no, no. But it's totally fine to have, if you really have strong political beliefs. No, actually, way worse than that. The commentary says, an appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired. This prohibition applies to both professional and personal conduct. The judge must expect to be the subject of constant public scrutiny and accept and willingly restrictions. I know that grammar is messed up, but accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen. So instantly, what does that mean? That means you get to be on the Supreme Court. That's super cool. You know what that means? It means you can't show up at the...

0:25:05 Thomas: Right.

0:25:55 Thomas: You don't get to spout off, do whatever you want.

0:25:56 Andrew: Yeah, I know that would... If I got have to be on the Supreme Court, it means I wouldn't be able to do the show anymore. It means I probably wouldn't able to speak at the American Atheist Convention anymore. And you know what? That's okay. That's what comes along with being on the Supreme Court. I'm sorry, Thomas. Don't worry.

0:26:10 Thomas: Yeah I know I'll be sad about it,

0:26:15 Andrew: There's zero chance I'm ever going to be of the Supreme Court.

0:26:15 Thomas: But, but at least I'll be able to exert influence on your decisions on the court not

0:26:19 Andrew: Yeah, right. There is no chance I am going to be on Supreme Court but if I did, you know that that's what that means, right?

0:26:26 Thomas: With that attitude Yeah.

0:26:28 Andrew: Yeah. Because it is not practicable to list all prohibited acts, the prohibition is necessarily cast in general terms that extend to conduct by judges that is harmful enough, although not specifically mentioned in the code. And okay. Then more on 2b, a judge should avoid lending the prestige of his office to advance the private interests of the judge or others. For example, a judge should not use the judge's judicial position or title to gain advantage in litigation involving a friend or member of the judge's family. In contracts for publication of a judge's writings, a judge should retain control over the advertising to avoid exploitation of the judge's office. And here's where I think that the giving over your list of clerks, right? All of a sudden, like, you know, a message from your wife, you're the wife of your judge, comes through like that. That seems to me like using the prestige of your office to advance Ginny Thomas's ability to offer an apology.

0:27:21 Thomas: So I I took that as like she's just trying to make nice with people she would be friends with or associated with through Clarence Thomas, does that gain her some, some sort of something? I don't know.

0:27:33 Andrew: I think saying, hey, I feel comfortable, taking this back channel communication that is by and between Thomas Clerks Justice and Thomas and turning it over as an outlet for my wife to, issue a statement. Again, you get the sense, If you want to say that one feels like maybe that's a push, I can accept that argument, I want right? Us push to back. Want it I to be clear that way in which, as you read these canons of judicial ethics, so much of the conduct is so far over the line that, you you want a quibble with that one.

Let's take that one off the table, right. This is also the section that prohibits judges from belonging to, you know, racially restrictive country clubs and the like. So there's an entire canon C2C on membership in organizations that have discriminatory policies. And it led to this note, which I thought was interesting, which is, although canon 2C relates only to membership in organisations that invidiously discriminate on the basis of race, sex, religion, or national origin. And again, it means those country clubs. A judge's membership in an organization that engages in any invidiously discriminatory membership practice prohibited by applicable law violates the larger canons, 2 right?

0:28:04 Thomas: Mm-hmm.

0:28:50 Andrew: And 2A, and gives the appearance of impropriety. And so again, that means the more Or you're pussyfooting around with these white supremacist groups like the Proud Boys, these groups that have the potential to appear on like a Southern Poverty Law Center hate group. It doesn't necessarily, but if they have practices, right, that, again, I know it seems weird when we're talking about an African-American justice on the Supreme Court. We should add that, Virginia you Thomas is white. I don't know that that matters. What matters is that both both she groups, and her husband, give aid and comfort to white supremacist groups. Know, how does Clarence Thomas square that circle? I could begin to speculate, but I don't know that that's important to me, Those right? Groups, I think, you hear the broadness of the language, right, that if you belong to an organization that officially has discriminatory policy, that violates the specific Canon 2C.

0:29:43 Andrew: As far as we know, Clarence Thomas does not, because that would be weird. But the larger principle, if you're part of any group that engages in discriminatory behavior, that per se gives the appearance of impropriety. Of course it does, right? And you should be staying away from groups that are one one degree of separation away from Stephen Miller, right? Should use better discretion than that, right?

0:29:57 Thomas: Yeah.

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0:31:38 Thomas: This show is brought to you by Wondery and their Will Be Wild" podcast. On January 6th, thousands stormed the U.S. Capitol on Trump's urging. Yeah, Ginny Thomas was possibly one of them. He had tweeted, "Be there, we'll be wild." From the critically acclaimed podcast studios Pineapple Street and Wondery comes series called "We'll Be Wild." "We'll Be Wild" shines a light on the human stories left out of the January 6 headlines and goes deep into the lives of people who took part in the day, the people who saw it coming, and the people who fear that the insurrection was just the beginning. You'll hear from former U.S. intelligence members who warned about the incredible rise of extremists in America, a former soldier charged with seditious conspiracy, and a son who turned his father into the FBI.

0:32:24 Thomas: That story is, wow, it's nuts. It's so cool. You should listen to the show. It's really good. Should. Will Be Wild is a close-up look at effort to bring autocracy to America and what the insurrection could mean for the future Follow Will Be Wild wherever you get your podcasts. You can listen early on Amazon Music or early and ad-free by subscribing to Wondery Plus in the Apple Podcasts or the Wondery app.

0:32:52 Andrew: Canon three, a judge should perform the duties of the office fairly, impartially, and diligently. The duties of judicial office take precedent over all other activities. The judge should form those duties with respect for others, should not engage in behavior that is harassing, abusive, prejudiced, or biased, and should adhere to the following standards. I thought but this subsection A6 kind of hit me. A judge should not make public comment on the merits of a matter pending or impending in any court. A judge would require similar restraint by court personnel subject to the judge's discretion and control. The prohibition on public content on the merits does not extend to public statements made in the course of the judge official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education. And it is that last kind of loophole that, you know, Clarence Thomas drives a truck through.

0:33:40 Andrew: The way a normal person would read that description is, yeah, you don't talk about outcomes of upcoming cases. However, if you're in front of a legal conference of practitioners, you could use a pending case, right, as a description of, you certain aspects of legal procedure, so long as you're not intending to violate this rule. But what you shouldn't be doing is going to the Federalist Society and saying, you know, I feel real good about the fact that, like, in our next term, we're probably going to overturn the right to abortion. And Clarence Thomas does that sort of stuff all the time. Are literally too many instances to list. Subsection C on disqualification, I think this is the knockdown argument.

0:34:27 Andrew: A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. That's the standard from which you need to recuse yourself. Could a reasonable person looking at the situation say, I'm not sure you're all the way impartial here? And if the answer to that question is yes, your job is to recuse yourself, right? And other justices take that seriously, right. Elena Kagan was solicitor general and everything that comes close to a case that passed her desk when she was arguing before the Supreme Court, she recuses herself on, right, even in cases, you now it's just, okay, well well, that makes the dissent, you know, six to two instead of six to three. But even in, you the 2013 to 2019 period where she had the potential to be a deciding vote, you recuse yourself because, yeah, you don't want a reasonable person to think your impartiality might be questioned.

And just to be clear, it goes on to state, this is in the text, not the the commentary, but not limited to instances in which, A, the judge has a personal bias or prejudice concerning a party or personal knowledge of disputed evidentiary facts concerning the proceeding. Judge, there's a financial or fiduciary interest, that's not important.

Or the judge or the judge's spouse or a person related to either, is right, known by the judge to have an interest that could be substantially affected by the outcome of the proceeding, Yeah.

0:34:47 Thomas: Yeah. Yeah.

0:36:00 Thomas: Tick that

0:36:00 Andrew: Yeah, Exactly right. And so I could continue to go on. I think I'm just going to end with, I'm going to skip over Canon 4. Canon 5 says, says, a judge should refrain from political activity. General prohibitions, a judge should not, one, act as a leader or hold any office in a political organization, two, make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office, solicit funds, pay an assessment to or make a contribution to a political organization or a candidate, or attend or purchase a ticket for dinner at other events sponsored by a political organization or candidate. And a judge, and then, okay, you might be like, all right, I've navigated all of that, I'd, I've never

0:36:00 Thomas: Checkbox.

0:36:46 Andrew: Paid to go to a Trump event. And yeah, and then you get C, all other political activity. A judge should not engage in any other political activity. It just couldn't be more clear. And the term, in the commentary, the term "political organization" refers to a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public service. Okay, I think I have demonstrated to sufficient degree that Clarence Thomas has violated the canons of ethics. Now, is that a high crime or misdemeanor? And the answer is, it doesn't have to be.

And here's why. Article 3, Section 1 says, the judicial power of the United States, of the Constitution, says the judicial power of United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

0:36:57 Thomas: Right.

0:37:54 Andrew: That's the end of what the Constitution says says about judges, but it says they hold their office during good behavior. You combine that with Article 2, Section 4, which says that the president, vice president, and all civil officers of the United States shall be removed from office on impeachment. Now, that continues to say for and conviction of treason, bribery, or other high crimes and misdemeanors, but you have to put that together and say, okay, judges serve during good behaviour. Judges are civil officers of the the United States. Therefore, judges can be removed via impeachment for failure to demonstrate good behavior. And I want to tell you that if you're asking, is this deeply steeped in our nation's history and traditions. The answer to that is yes.

0:38:45 Thomas: Yeah. Well, I remember when we, we were yeah, talking about impeachment of Trump, there was often like a judge that came up as the example of impeachment, right?

0:38:56 Andrew: The very first judge to be impeached was John Pickering of the United States District Court of the District of New Hampshire in 1803, and he was impeached for being drunk on the bench. And not only was he impeached, he was convicted by the Senate. He was removed from office on March 12th, 1804. So

0:39:19 Thomas: But Andrew, is being drunk a high crime?

0:39:22 Andrew: It might get you, I don't think it even counts as being high. It's not a crime. He was not guilty of public intoxication in a criminal sense. He was a drunk. And they added the charges of mental instability to that, by the way. Not exactly the most enlightened language from 1803. But yeah, the idea was, yeah, this guy's drunk and does dumb stuff on the bench, and therefore we want him out. And I want to tell you, 15 times the Congress has impeached sitting Article III judges, including one Supreme Court justice, and only four were acquitted. Eight were convicted, three more resigned because they were about to be convicted. That's pretty great ratio of success.

0:39:33 Thomas: Yeah, yeah. Right.

0:40:12 Andrew: And again, it is littered throughout this. Some of these folks committed crimes, but some of them, Judge Delahaye in 1873, also removed for being drunk. Now, you knows, Judge West Hughes Humphreys of Tennessee was impeached in 1862 for insurrection, right? So the charges were refusing to hold court and waging war against the United States government. Okay, so, you you can also be removed for, you actual crimes and for insurrection and for treason, you can be removed because you are not demonstrating good behavior. Now, I have left the last kind issue here, and that was the only Supreme Court Court Justice to have been impeached was Samuel Chase.

0:40:57 Andrew: And again, this was 1804. And although he was a sitting Supreme Court Justice, you have to remember the way in which the judiciary has changed since 1804? Well, first, in some ways, the more things change, the More Things Remain the Same, The name, reason why you have a lot, you have these two impeachments in 1803 and 1804 has to do with the perceived and actual court packing by the Federalists, right, so George Washington was a Federalist, he was elected, was president when the first Judiciary Act was passed, and so he got to name all the judges, and And by the third, yeah, right, by the third presidency, right? We just go through Washington, Adams, Jefferson, right. It's 1800 and the Federalist Party is dead, but they are the entirety of the federal bench.

0:41:38 Thomas: Talk about court packing, yeah, oh.

0:41:55 Andrew: Yeah.

0:41:54 Thomas: Wow, minority rule, yeah.

0:41:56 Andrew: Yeah. And so Jefferson and the Democratic Republicans were like, all right, what can we do against, you this ridiculously ridiculously packed judiciary. And one of the people that they kind of took aim at Samuel Chase. Look, again, they could have picked the entire Supreme Court, but Chase was the most egregious and ridiculous the bunch. It stemmed from the fact, again... So that's the the way in which the more things change, the more they remain the same. At the time, Supreme Court justices not only rode circuits, but when the Supreme Court was not in session, which was almost all the time—it was frequently not in section, right? The Supreme Court had not a lot to do back then. So they would try cases. And

0:41:56 Thomas: Get him drunk and impeach him? No, oh, wow.

0:42:46 Thomas: Yeah.

0:42:46 Andrew: Almost all of the aspects for which Samuel Chase Chase was impeached had to do with his conduct during trials, right? In which, well, let's go through. There were eight articles of impeachment that were approved by the House. Article one was, while presiding over a treason trial in Philadelphia, Chase conducted himself in his judicial capacity in a manner highly arbitrary, oppressive, and unjust by, among other things, delivering an opinion on the law before the defense had presented its case, thus prejudicing the jury, unjustly restriction the restricting the legal authorities the defense could cite, and depriving the defendant of his constitutional right to present a legal as well as a factual argument, all of which deprived the defendant of his rights under the Eighth Amendment. Okay, that seems bad.

0:43:34 Andrew: Two, while presiding over the trial of, uh, at Richmond, of Democratic Republican publisher James Thompson Callender for libel against President John Adams, a Federalist, Chase refused to dismiss a juror who asked to be excused because he had made up his mind in advance. And so the judge is like, right, but are you for, against my guy? And he was like, well, I'm for your guy, and you stay. Article three in the Calendar trial, Chase excluded the exculpatory evidence of a witness for the defense, John Taylor, because, quote, he could not prove the truth of the whole of one of the charges contained in the indictment. Although the said charge embraced more than one fact, this was done with intent to oppress and procure the conviction of Callender, right?

0:44:20 Andrew: So in other words, these are ways in which he had his thumb on the scale of this guy who, you know, defamed his buddy, President John Adams. Again, Article 4, that he was unjust, impartial, and intemperate during the Callender trial. Article 5, that he detained Callender in violation of federal law. Article 6, that he rushed the trial of Callender. Then we get into, okay, we're outside of that one. Article 7 is, while presiding over a grand jury in Delaware, quote, disregarding the duties of his office, did descend from the dignity of a judge and stoop to the level of an informer and refused to discharge the grand jury, even though they found no cause for indictment, telling them of a seditious printer in Wilmington whose works might furnish some cause for indictement.

0:45:04 Thomas: Yeah.

0:45:04 Andrew: So yes, that is, Samuel Chase went to a grand jury and said, okay, I know you didn't come back with an indictment here, but do you know there is also this printer out in Wilmington who would have good evidence, and so does that change your mind any? And this is a sitting Supreme Court justice doing And this, then finally, and I thought that this was significant, perverted his official right and duty to address the grand jury over which he presided in Maryland by delivering opinions which, even if the judicial authority were competent to their expression on a suitable occasion and in a proper manner, were, at the time and as delivered by him, highly indecent, extrajudicial, and tending to prostitute the high judicial character with which he was invested to the low purpose of an electioneering partisan.

In other words, he made political arguments in front of the grand jury. Now, Chase was acquitted by the Congress, but Article 8 got the most votes, right? In fact, got a majority of the Senate to say, yeah, we think electioneering in front of a grand jury is probably not a great use of judge's, of a sitting Supreme Court justice's authority.

0:45:22 Thomas: So

0:46:20 Andrew: You ought to conduct yourself with more dignity than that, that you ought not to come out in favor of a particular political position. So the failed impeachment. I mean, you know, successfully impeached, failed to convict Samuel Chase. He served on the Supreme Court for another seven years. But I think if you look at the history, they were impeached. They were impeach, but not convicted. And again, I don't expect that Clarence Thomas will be convicted.

0:46:42 Thomas: Your big example is one where they weren't, well, I guess they, at least we're impeached, just not convicted. Yeah, of course. Yeah. No, true.

0:46:54 Andrew: Not what I want to get out of this. What I want to get of this is a vindication that this is not how you're supposed to conduct yourself as a Supreme Court justice. And hopefully I've convinced someone, but there you go. That is the impeachment of Clarence Thomas.

0:47:04 Thomas: Yeah so there's not any new revelations we should know about beyond these text messages. It sounds like as, as of yet.

0:47:16 Andrew: I don't know of any, but I know if we were to convene a committee, they would be able to subpoena documents.

0:47:19 Thomas: Yeah true. And there may be more coming from one Six committee, right? Yeah.

0:47:27 Andrew: Indeed. Absolutely.

0:47:28 Thomas: Yeah, no.

0:47:29 Andrew: If this is what Ginny Thomas is firing off to Mark Meadows, I mean Maybe.

0:47:33 Thomas: Kidding? Yeah.

0:47:34 Andrew: That's her only bff, but I doubt it.

0:47:37 Thomas: My only other follow-up was, the Supreme Court really just tried cases, who Which Case I might Which Cases Do They're just Like, hey, uh Step aside Here, they just, they want, I picture them wandering into towns in like a carriage together and they're like, move aside, uh, court, whatever's going on here.

0:47:41 Andrew: I don't I Don'T There's There's So Much Crazy Stuff Yeah. Yeah. Side, tackling judges and being like, Supreme Court in the house, yeah.

0:47:58 Thomas: Yeah. Like, An NBA player taking over like a pickup game, you know, on a court somewhere, like, here's how justice is really done. No, but for real, which were, what, these special cases that were not in some other court? How did they just try cases? Wow.

0:48:06 Andrew: Oh. No. They They just got randomly assigned, uh, in those courts, right? But yeah, and you could just just have, sitting, yeah, Supreme Court justice, try your, you know, traffic accident. I mean, you know. It's 1804, your horse got, you know, yeah.

0:48:17 Thomas: That's so funny. Yeah, your horse ran into someone else's cow. I don't know. Yeah, I love it. All right. Impeach Clarence Thomas. This should already be happening in the house. And I don't know why it's not. Really, I actually don't. Why haven't we done this? We got a tweet of people or something. I don't know what. How do we make them do this? Who Yell do we need to talk to? Who's it?

0:48:40 Andrew: Yeah. Let's yell at the house.

0:48:42 Thomas: Okay. Everybody yell at the help. There's a lot to yell about these days.

0:48:42 Andrew: That's right. That is true.

0:48:46 Thomas: That's probably why it hasn't happened. There's too much to yell about.

0:48:49 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:48:59 Thomas: Now it's time to thank our Hall of Famers, our all-time greats, at patreon.com/law, and we're at the start of another month, we're on the quartile system this month, and why don't you start us off? Oh.

0:49:10 Andrew: All right. Thank you to lenbogan, Heather Paek, Republican sorry, Republican Congressman Mike Ropinas.

0:49:18 Andrew: Nice, I suppose I should try and say it better, but you know, you get the point. Everything important, you got to fight for your right to ex parte, which is great, Caris Ford, the CDC says take legal advice from a podcast, I'm fast at sex and at listening to the backlog to hear my name read organically.

0:49:37 Thomas: Man.

0:49:37 Andrew: Well good, Michael Grosnick, loss, it is pronounced amicus, not amicus, lawyers, lawyers, suck Latin, shots fired, purplecouch.com, p-u-r-p-l-c-o-u-c-h.com, are you supporting a friend through a divorce or going, going through a divorce, listen to Assembled Experts at purplecouch.com, loaf of orange, Indiana and Marion the corgis got split up in the divorce, oh no, so now. It's just Marion. Transvin Diesel asks, can we get Chase Strangio on the pod to talk about anti-trans bills? We'll take a look. Jamie OA live show, Mardi Gras 2022 in New Orleans, I think we've missed that, but we could uh we could, could definitely do, uh, 2023, that's, that would be uh high on my list, yeah employed again, again, so patronizing again, again, well, excellent, thank you, politics from a different but enlightening angle, the novel Vortexes is being considered for an option in a screenplay, yay, all right, a streetcar named these nuts, I will never not laugh at that that's so good, last month was Balefire Dragon dragon 2C 2U 2B 2R, flying, an opponent damaged by this card must discard the entire hand, ignore this effect if something

0:50:04 Thomas: Yeah.

0:50:18 Thomas: I think we did yeah once we're more comfortable with large gatherings of people cool always funny oh yes we no, I also don't know that one, 2C is interesting, so it's colorless mana, or is that just how they do it now, anyway, cool, sounds like another cool creature that I don't, but awesome, well

0:51:07 Andrew: LT Salty, Salty Seattledriver asks thatyouandyourfriendshelpmetogettto1000 subscribers on YouTube so that I can make a few dollars, okay, inspired zombie, all caught up, missing, missing eight hours a day of Andrew whispering sweet nothings in my ear, well, great work, and you

0:51:24 Thomas: This past week you had about eight hours a day of OA all

0:51:26 Andrew: Sure did. And take it away, Thomas.

0:51:30 Thomas: Right, Suzy's sister sewed socks for soldiers, Andrew will start by reading this legal briefing backwards, this is, is how we summon our dark lord Lucifer, Ian, Ian says invagenate, but also oubliette too, yeah, there's some good code, uh, names references there and also, uh, Andrew's trivia references, hashtag invagicate, no ducks given this month, at Atomic Penguin Seven on Twitter, Joseph Vigiano, Dr. Scoop, Little Doug and Heather, Mr. and Mrs. Pusher, I passed my transgender health communication thesis defense with distinction, oh cool, hand woven sustainable textiles for your home and body at kellywoveit.com, Abigail, Abigail Bartlett, I wish I, don't think Thomas will get this joke, is that uh what's a face reference, the show, isn't there like a President Bartlett, isn't that that guy, he's the show that everybody West Wing, yeah, isn't it?

I don't know. I'm putting two and two together, the things I won't get and the name that I think I remember. Abortion access saves lives. For a fun fantasy story, read The King's Own by W. Marshall, now on Amazon. That thing in the attic. Sean McGovern. Liberals own guns, too. Support root cause mitigation, not ineffective gun control. I support effective gun control, though. OA Chicago live show. You bring the law-talking guys. I'll bring the Al's beef dipped with peppers. My God, that sounds so good. The Fat Jedi Eating Cake and Drinking Brewery Beer in the Death Star Canteen. Zach Bloom, Ignoring My PhD, Inconstitutionally Vogue.

0:52:22 Andrew: West Wing? Could be.

0:53:04 Thomas: I like that one. Inconstitutionally Vague is a great one. Tell Morgan Gattam's Son. Ray, Pizza School of Corgi says, F Alito, F Amy Coney Barrett, F Clarence Thomas, F Kavanaugh, F Gorsuch, F. Roberts. That's good ordering, too. I like that ordering of the F's. That is pretty good. Good stuff. That all our Hall of Famers. Join their ranks. Go to patreon.com/law, I. Pledge and become a Hall of Famer. Get that monthly shout out. It's so much fun. Thanks to our Hall of Famer's. And

0:53:22 Andrew: Yeah.

0:53:36 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:53:42 Thomas: Now it's time for T3BE answer time. I barely feel like I participated in this question. I'm just here to get, I want to hear about what this question even was. I don't know.

0:53:52 Andrew: Well, this was exploring the contours of hearsay and extrinsic evidence. It was a defendant Defendant charged with homicide. At the trial, the prosecution calls in a shop owner who says, yeah, immediately after the accident, some dude ran into my store and said, whoa, can I use your phone? That blue car just ran a red light and hit somebody. And you asked, isn't that hearsay? The answer to that is, yeah, that is absolutely hearsay, but it's admissible hearsay under Rule 803, right? That contains all of the exceptions to the rule against hearsay.

0:54:09 Thomas: Right. Yeah.

0:54:27 Andrew: It becomes admissible as an excited utterance, a statement relating to a startling event or condition made while the declarant was under the stress of excitement that it caused. And the idea is, yeah.

0:54:38 Thomas: I Love that. Because of The whoa, you turned him into auto from the sense, whoa, whoa, can I use your phone?

0:54:43 Andrew: But the idea, and this is an actual bar exam tip, but this is what the bar exam will do, is when you study for it, they will tell you, like, look for things like an exclamation point to determine if it's an excited utterance, right? The use of multiple exclamations, whoa, that blue car just ran a red light and hit someone.

0:55:07 Andrew: Okay, so excited utterances, that's how that gets in, okay? The witness is not testifying at trial and is not present. So then it says, with the sole objective –

0:54:58 Thomas: Oh, right, right. Yeah. Yeah, no, true. I should have remembered that. Yeah but okay, so That matters. I could never get this straight. So if the witness were available, don't you still need to just have him come up and say like, hey, yeah, no I didn't say say that but I was wrong, yeah.

0:55:25 Andrew: Yeah, well, that changes. So what you can do is you can eliminate as you're evaluating – I'd like you to go to auto again for that. As you're evaluating the hearsay branches, you can illuminate all of the exceptions where the declarant is is available, right? So there are certain of the rule that apply only when the declarant is unavailable. It does not matter at all for purposes of this question,

0:55:49 Thomas: Right. So I I guess I never remember, I'm just trying to, you know, gain information for next year, say that I'm gonna fail. I can never remember like which takes precedence there if you've got an excited utterance, that that's fine, despite the fact that this witness might be available and and all that.

0:56:09 Andrew: 803, right, which is the long list of exceptions, says the following are not excluded by the rule against hearsay regardless of whether the declarante is available as a witness. So you you get to choose, right?

0:56:18 Thomas: Okay. That answers that question, yeah.

0:56:22 Andrew: Yeah, if you're thinking, oh, you know, because believe me, if need a witness for one sentence and the witness is terrible, you might rather say, "Well, look, I'm going to have my good witness also get in that statement so that the jury isn't misled," by like an hour of cross-examination of Otto on the court, right, and that was clearly the a strategic decision that was made here. Then the defense wants to discredit that testimony. And it, right, is an important fact of with the sole objective of discrediting this testimony, because that's what makes what the defense is doing not hearsay. Remember, something is hearsay when you seek to have it admitted to establish the truth of the proposition, right? When you You're just saying, look, we're not saying that his statement, we want you to believe that this impeaching statement is true. We just want youto throw out this witness, right?

0:56:32 Thomas: Yeah.

0:57:08 Thomas: Ah, the truth of this. Yeah. Oh, right.

0:57:21 Andrew: We want you to think this witness is unreliable.

0:57:22 Thomas: Maybe he misremembered what the hearsay that he heard. That's okay. Yeah.

0:57:24 Andrew: Right. Yeah, exactly right. So then they want to introduce the recording. The recording is, did you see a blue car run a red light? No, the blue car did not run a red light. The light was green when it drove through the intersection. So the question question is, can you introduce that testimony to impeach the prior accepted hearsay? And the answer is that this is just standard impeachment rules, right, regarding prior inconsistent statements. So ordinarily, there

0:57:27 Thomas: Oh, okay.

0:57:56 Thomas: Standard impeachment rules. So did the statement have a wife that participated in an insurrection? If so, we can impeach it. Yes.

0:58:01 Andrew: You go. Extrinsic evidence can come in when the witness is given an opportunity to explain or deny the statement at some point. But here, the witness is not testifying at all, right? So now we just have a non-testifying witness.

0:58:19 Thomas: So I nailed this one. Sweet.

0:58:21 Andrew: And so you picked the answer D, no, because extrinsic evidence is admissible in this situation. And that is exactly correct.

0:58:23 Thomas: Yeah. Sweet.

0:58:31 Andrew: You eliminated C, that it constitutes admissible hearsay under the a recorded recollection exemption, which makes no sense whatsoever. Recorded recollection is exactly what it sounds like. It is, you put a witness up on the stand, and you're like, hey, so do you remember what you did the morning of September 13th, 2014? And they start to talk about it, and they're like... I really wrote a lot down on my calendar, And then the lawyer will say, Honor, we move to admit the calendar under a recorded recollection exception, right? So a recorded recollection is when a witness once knew about but cannot now recall well enough to testify fully and accurately. It was made or adopted by the witness when the matter was fresh in the witness's memory, right, contemporaneously, and accurately reflects the witness's knowledge. So calendars, notes.

0:59:24 Thomas: So a calendar, that says, "Beach week and boofing and squee and all that," yeah, yeah.

0:59:27 Andrew: Yeah, yeah, yeah. Exactly right. You would use, well, I was pretty drunk, but back then I wrote down immediately everything that I was doing.

0:59:35 Thomas: I used to write all my sexual assaults on a calendar, either, not like a mark, like, didn't sexual assault or did sexual assault, on a given day of a calendar. Yeah, iron ironclad proof. Yeah.

0:59:44 Andrew: Yep, exactly right. So so recorded recollection exception makes absolutely no sense. The person whose recollection it is is not even testifying. So you were between B and D for your one yes and your one no answer. And that correctly identified this as not a hearsay question, but an extrinsic evidence question. And then you got it exactly Exactly right. So I think it's...

1:00:02 Thomas: Got a bit but Yeah, yeah. Yeah, I got lucky in it being an extrinsic evidence because so if it was to refute the statement, then then what would the case be? I'm just curious, like if it Was like, oh, no, we want to refut that hearsay statement that they're testifying with. Are they not allowed to bring in this tape recording that that contradicts it?

1:00:27 Andrew: So You would have to look for a different exception to the rule against hearsay If they wanted to introduce it for its truth value? And remember that the exceptions... So the idea of... And you've gotten this exactly correct. The idea of hearsay is, let's not have a secondary reference. Let's bring in the declarant. Let'S bring in the person themselves, because they're the ones that you can then cross-examine and kind of figure it out.

1:00:33 Thomas: Hmm. Mm hmm. Right. And the Recording is the declarant themselves. But I guess you can't cross examine a recording. Is that the idea? Idea, yeah.

1:01:01 Andrew: That is exactly right. And so when you're looking at bringing in something like that, you would want to say, all right, that's hearsay. Are there indicia that tend to make that reliable, right? Like, is there a reason to think that that would be more reliable than just, you Thomas says, Sandy said X, right.

1:01:25 Thomas: Well, It's a tape recording when they're talking to an officer, so You Would think

1:01:29 Andrew: Yeah, you could say, yeah, you Could say, right, is that a statement against interest? Right? It certainly certainly sounds like it could be, if an right? Officer, if there's more, you know, sort of to that there of, you Know, the officer is like, well, you do know, you said yesterday you were screaming X, Y, Z, and, you Now, and you were like, right, but I was, you Know, hysterical and, not in my right mind at that time. You would that be a potentially embarrassing or, You something like that? It could be. It could also potentially, well, again, the declarant themselves are not on the stand, that makes it a bit of a challenge. That's But the analysis you would sort of go through, is you would say, okay, if I want to prove for the truth value, I now have to affirmatively find an exception to the hearsay rules. And there's not a great one in in this, you know, there's not a knockdown one in fact pattern.

1:01:30 Thomas: Yes, Right, Not

1:02:25 Andrew: The question is, we don't know if the witness is unavailable, right?

1:02:25 Thomas: Even just The witness is unavailable. So what might happen is you're like, uh, denied, go find the witness, or Something, okay.

1:02:34 Andrew: Right, exactly right. And so this just says the witness isn't testifying. That, to me, right, yeah, the criteria for me, and that's where you would get, you knows, sort of the statement the statement against interest only applies if the declarant is unavailable, and that is defined as somebody who is exempted from testifying, refuses to testify despite a court order, testifies as to not remembering, cannot be present to testify because of death or a then-existing

1:02:35 Thomas: Okay. Ah, You're Right, not Present in court. Yeah. Yeah. Okay.

1:03:06 Thomas: Yeah. Sorry.

1:03:06 Andrew: Infirmity, any physical illness or mental illness, or you can't find them because they've fled the jurisdiction.

1:03:07 Thomas: I got this death that I have. Yeah, I got a ethics question back to that quiz. If I tattoo the whole rules of hearsay on me, can I take the bar exam with that? It's a tattoo. That would up my score by a good 20%. Like

1:03:20 Andrew: Sure.

1:03:31 Andrew: I think it would, and I think you're to have to call the hotline on that one.

1:03:36 Thomas: A calf tattoo or something. I'm just taking the test with my leg, like, "Oh, it's 803, okay." Ah, it's so confusing to me yeah I need to just memorize those bad boys if I actually want to want to do well, but hey, got it right. It's quite a bit of luck, a little bit of skill, quite a lot of luck involved here. Let's find out if anybody else was lucky or just knew the answer because they know yeah, exactly, they know things. Who's our big winner this week? All right, my turn to pick the winner, and I am so glad because I got to see that hearsay is not just impossible for me, it is impossible for all the lawyers listening as well. Nobody got this right. I mean, almost nobody. There are two correct answers, and one is right for the wrong reasons, so congrats on getting the right answer. That's kind of like what I did, so no judgment.

It's just I don't want to pick you as a winner because if I read the explanation that's wrong, it's going to mislead people. So really there's one person who got it right and they are not a lawyer. So all the lawyers got this wrong that I saw. They were, I think, distracted by the hearsay question. And not only is hearsay an impossible question, but it's also an impossible word to spell.

1:03:37 Andrew: Yeah. Hearsay exceptions are one of the things that lawyers spend a lot of time trying trying to memorize before taking the bar. Yeah. Yeah, or good or good.

1:04:48 Thomas: I see like seven or eight different spellings of hearsay on Twitter, which I love. No judgment there as well. It takes me an hour to remember how to spell it every time. So it's that difficult of a topic. It can't even be be spelled properly. There's a lot of H-E-R-E, S-A-Y. There is a lot of heresy. Could be autocorrect, I thought that was funny that it's that hard and it's spelled incorrectly all over the place. It's just you can't grasp the topic. It's impossible, or at least I can't. I'm going to talk about our winner, at Jenny Jen Jen on Twitter, who again is a non-lawyer but looks like they did pretty extensive research to get to the answer of this this one. They sort of cheated in that they took a picture of a very long note and that's their tweet. And that's, you know, it's against the spirit of the contest a little bit because you're supposed to answer it in a tweet, but that's okay.

1:05:35 Thomas: You're the only winner. So I have to read it, but I'm not going to read the whole thing. It's too long. They successfully determined that this was not really about hearsay and that it was about extrinsic evidence and impeachment of the witness. And they, I'll just skip to the bottom part here, but the court may on cross-examination and they're quoting the law, them to be inquired into if they are probative of the character for truthfulness or untruthfulness of one, the witness or two, another witness whose character the The witness being cross examined has testified about Jen Jen says, this does not sound like extrinsic evidence must be excluded, but that we must evaluate if it is probative. And therefore, I believe that the answer is D. However, I am simply a humble newbie moderator and not a lawyer. Well, I'll tell you what, I'll telling you what Jenny Jenny Jen, Jen, simply humble, newbie, moderator, and not a lawyer, you got it right.

1:06:21 Thomas: And almost everybody else got this wrong. Most people pick B that I saw, Jenny Jen. Jen, you and I got it, right? We are the big winners. I'm including me in this for some reason. Congratulations. Congratulations and thank you everybody for making me feel better about hearsay being incredibly hard, almost sneakily harder than real property, I might say. So thanks for playing. Keep it up. I love seeing all the answers. You You folks are the best. And congratulations to at Jenny Jen Jen for being our winner. Oh, I forgot to award infinite fame and fortune forever because there's no Andrew here to stop me. And that's our show. Thanks for listening, everybody. Hey, we'll see you if you're listening to this patrons. You got a couple days. The Q&A on on YouTube. Join us Tuesday, at the 10th, 5 p.m. Pacific, 8 p.n. Eastern.

1:07:06 Thomas: If you're a normie, you've got less time, but you still can join us because this episode is out in time. It's Tuesday. Join Us. Okay. We'll see 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.