OA602: New Eastman Docs Set Stage for Jan 6 Hearings

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:16 Thomas: Hello, and welcome to Opening Arguments. This is episode 602. I'm Thomas. That's Andrew Torres. How are you doing, Andrew?

0:01:22 Andrew: I'm fantastic, Thomas, how are you?

0:01:24 Thomas: Doing great. We are getting very, very close to some January 6th hearings. Am looking forward to it. I I'm sure you have a major event planned. Are you doing like a midnight screening of the January 6th hearings in your Chewbacca suit or something, you know, got your lightsaber and you're not just, you know, other men, like my Gandalf staff and my whatever.

0:01:41 Andrew: My Chewbacca's? No, no, right, yeah. I've stayed out all night for, you know, front row tickets for this event. No, I have learned not to get my hopes up for government hearings. The past six years have been rough on that. But as I've said, I've said this to you directly. I've sent this to our listeners that there is a certain quality of of, you know, Charlie Brown with the football. And I cannot blame you if you are cynical about the January 6th committee. On the other hand, this is a committee that is tasked with and has spent a year and a half compiling evidence with respect to the insurrection. And their job is to communicate that to the public. And so if you have been frustrated that efforts to hold Trump accountable seem to have fallen short, I'm right there with you. This represents a good opportunity. Again, I can't tell you not to be cynical about that.

0:01:56 Thomas: Yeah, true.

0:02:43 Andrew: I can say, and this is going to be the theme of this episode, every time I look at the tiny subset of documents that the January 6th committee has released ahead of schedule in order to accomplish particular objectives, it, as a lawyer, it indicates the stuff that they must have is likely to blow your mind. So it, again, uh, may have come down with a case of, of severe optimism, but I want to share with you some of what we've learned going on behind the scenes at the January 6th committee.

0:03:19 Thomas: Yeah. Starting with, I think a lot of this is centered around a major bombshell back right after we recorded the other week. Excited to finally cover this. You were very excited about these documents, these drops, as you say, these little, not really breadcrumbs, the committee's leaving, sort of like full loaves of bread they're leaving, or maybe like several loaves. More than crumbs, I would say.

0:03:28 Andrew: It always happens.

0:03:43 Andrew: So here's what I learned to do last time, right? This is in connection with the John Eastman civil litigation, where John Eastman is the plaintiff in a federal case in the Central District of California. Despite the fact that John Eastman is the plaintiff, the lawyers he hired to represent himself are not civil lawyers, they are white collar criminal defense lawyers, and that's part of why they've sucked so bad at this civil process. I mean, they've done inexplicably stupid things, and I'm gonna dive into that a little bit here. I infer whatever you want to, me, when somebody says, hey, I really, really want to bring, bring this civil lawsuit to compel my employer, Chapman University, not to turn over documents to a congressional subpoena.

0:04:32 Andrew: And when you ask them, so who have you selected? And you say, well, the people who will keep me out of jail. That seems to me to be telling. Um, it may strike you differently, and every person is entitled to their own opinion, opinion. Last time I learned a very, very important thing. We, right? Covered in depth the first hearing that took place in that case regarding several hundred emails that were exchanged by and between John Eastman, the president of the United States, and various, from January 3rd to January 6th, right, and that's where we got the smoking gun document of John Eastman telling counsel for Mike Pence, hey, um, since you've already committed some crimes how about we commit some more crimes

0:05:23 Thomas: I will never forget it because of whoever Mike Pence is, the lawyer guy was having to maintain the like civil relationship to like, oh yeah, not sure on the insurrection stuff, but when, you know, Hey, next time you're in town, let's grab dinner. Let's grab a, let's grab a bottle of wine dinner, you know, like really weird, bizarre universe stuff of like trying to maybe casually say no as though it's like an invitation to a movie. You don't want to see now. Ah, I can't make that insurrection, but let's grab dinner, okay?

0:05:27 Andrew: Yeah yeah so that, that is uh Greg Jacob, unlikely hero and cooperating witness with the, with the January 6th committee. We actually have the opportunity for John Eastman to serve in that role in connection with this latest trove of documents, so buckle up for that one because that is a wild ride. But, but what I learned in connection with that first hearing was download the exhibits, right?

Because the January six committee has a ton of documents, they have taken a ton of depositions, they have received a lot of testimony, and what they have done is publicly released just enough to accomplish their objective, which the last time around was to, to persuade a court, which they did, right, the judge in this case has determined as a matter of law, and again, in a civil case it's not directly transferable because the standards of proof are different, but has, has determined that it is more likely than not that Donald Trump and John Eastman committed crimes, including obstructing an official government proceeding to whip the counting of the electoral votes on January 6th, and that they were engaged in a conspiracy to defraud the United States. That's a pretty significant finding to convince

0:07:16 Thomas: Yeah.

0:07:16 Andrew: A court to put on the record. So, after right? That hearing, court turned over a bunch of documents to the 1-6 committee and then said, OK, since I have made this determination, it's also important to go through all the rest of your emails and let's find out what other evidence of criming there was that took place. Because we know you didn't invent this on January 3rd, that we just received the end of the briefing on May 31st with Eastman's reply brief. But at the end of May, so last week we got the complete briefing from all sides with respect to, should, does John Eastman have legitimate attorney client privilege here, or spoilers, does he not?

0:08:01 Andrew: Because it's more evidence of criming. And I went and directly downloaded the 20 exhibits that are attached to the brief. The brief itself filed by the January 6th committee is great. It really. And look, again, I know it's, you know, it's our side. We're rooting for the good guys. We'RE rooting to put the bad guys in jail. Um, it the text is fantastic, such as, for example, the point in which in his initial brief, John Eastman says, well, some of these documents are documents involving potential clients, Right. That right? Is people who have who called me up and were seeking representation because, you know, they wanted to hire me as a lawyer. And the fact that, Know, you that didn't go through doesn't mean that I don't have attorney client privilege.

0:08:52 Andrew: And by the way, that's true. If somebody calls me up and says, hey, I just killed a guy and I need you to represent me. And I listen to opening arguments all the time. I would then tell that person, hey sorry, not a criminal lawyer and would hang up. But that conversation would be attorney client privileged. Right. Though we don' have the whole attorney client relationship. We have the initiation, right? We have a client seeking it out. Yeah. Potential representation. Right. So Eastman says, hey, look, some of these documents are protected by potential representation. The 1-6 committee responded to that one by saying, you didn't provide the documentation that the court ordered you to do so.

But moreover, quote, for instance, of the first three people whom Dr. Eastman claims to have spoken about potential representation, the third has been in contact with the select committee through separate counsel. This separate counsel informed the Select Committee that this third person, quote, never retained nor considered retaining Dr. John Eastman. Rather, the person contacted Dr. Eastman merely to correct Eastman's incorrect publicly stated position on the Pennsylvania Constitution and never had any attorney-client privilege communications with Dr. Eastman. In fact, this third-person has produced to the Select Community documents that appear to be those described in Dr. Easman's Consolidated privilege log as, quote, come with agent and potential clients where a follow up from conference call on possible legal consultation, end of quote. So, yeah. So the brief is really good.

But I you know me where right I have loved digging in is seeing what you can't just say that to a court, right? Like you have to show documentary proof for all of this. And oh And, boy, the documents are, I mean, on the one hand, they are very, very revealing as to what the January 6th committee knows. On the other hand, it is terrifying how much deeper,

0:09:17 Thomas: Yeah. Oh, yeah.

0:10:51 Andrew: How much earlier these conversations were taking place and with how many different folks these were taking place, how coordinated and widespread this effort was from the very beginning. And when I say from the very beginning, we have emails, conversations dating to the day after the election, two days after the election. In fact, why don't we start with this one? Because it's again, all of this is terrifying. But this is This Exhibit I, this was sent Thursday, November the 5th. OK, so two days after the election, before it has been called for Joe Biden.

0:11:39 Andrew: OK, the result is still up in the air. This was sent by Cleta Mitchell from Foley and Lardner before she was fired. This is while ostensibly representing the president without having told her partnership committee, which is about as big an offense as you can have. As a law firm partner, you might remember Cleta Mitchell from such transcripts as Donald Trump's call with Brad Raffensperger in Georgia. Yeah, she is a dyed in the wool, Trumper, insurrectionist, true believer, big lie participant. She writes to Eastman, John, what would you think of producing a legal memo outlining the constitutional role of state legislators in designating electors? Rather than governors, comma, the U.S.

0:12:25 Andrew: Constitution vests that responsibility with state legislators where state executive branch officials have rewritten or ignored state election law. Why couldn't legislators reclaim that constitutional duty and designate the electors rather than delegating to governors? The U.S. statute may be unconstitutional as the government as the governor has no authority under the Constitution to designate electors. Am I crazy? Redacted.

0:12:49 Thomas: Yes.

0:12:50 Andrew: Yeah, that's always a good rhetorical one to put in there. Redacting called me about this. And if that is not the president or someone in the president's inner circle, this email makes no sense. Right. I said a legal memo would be required and you would be the person to write it and maybe get others to sign it. What about that? A movement is stirring, but need constitutional support. Would you be willing to discuss it with redacted? What about them? So that's Thursday. And from there, we have two separate things. The first thing we have is John Eastman producing a memo that was then later released as an op ed. And that memo says the the constitutional authority of state legislators to choose electors. Now, that was released at the American Mind, a production of the Claremont Institute, a right wing think tank, on December 1st, 2020.

0:13:01 Thomas: Yeah, ah,

0:13:51 Andrew: But it was written on November 9, 2020, and it was disseminated to the president from an EOP.gov address, WHO.EOP.GOV. That is the Executive Office of the President. Now, do I know that that's Jared Kushner? I do not know that that's Jared Kushner, but that is somebody from the Executive Office of President inside the White House with the label for POTUS, and that was disseminated in November of 2020. So again, prior to the certification deadline, and it was very, very, very clear that what is going on behind the scenes here is the Trump administration's efforts to convince state legislators, Republican state legislatures in states won by Joe Biden, to nevertheless designate alternate slates of electors.

0:14:50 Andrew: One of the things we learned about that was, again, I don't want to give a lot of credit to Republican state legislators. Many of whom were way too eager to cooperate with treason, but ultimately that didn't go anywhere. Ultimately, they could not so corrupt the process as to get Republican legislatures to say, "Yeah, notwithstanding the fact that we had an election and our voters went the other way, we are going to designate either two slates of electors and let Congress the decide, or we're just going to throw" Throw out the Biden electors and replace them with Trump electors.

0:14:58 Thomas: Yeah, well, it didn't work this time, but I feel like next time they've set the groundwork for something like this, don't you think?

0:15:35 Andrew: I that certainly is what they are. They're trying to and write the groundwork was I don't I'm pushing back on groundwork because they laid a lot of groundwork this time, too. So so I think that's right.

0:15:44 Thomas: Yeah, true, true. Yeah, not that they were. I think that groundwork in terms of the election subsequently that will have changed, you some of the people who are in those positions, right?

0:15:53 Andrew: Yep. So that didn't happen. And the extent that there were alternate slates of electors, these were the Republican insurrectionists who met in the Denny's parking lot and lied, and many of whom are under indictment, many more of whom are under investigation for filing with the National Archives, things that look like official certifications that are perjury, right, that are saying, hey, we were the duly appointed electors and we met at the Rotunda, if you define Rotunda as the you Denny's parking lot.

After that, we've been focused previously on the January 3rd to January 6th emails and communications and efforts by John Eastman which which were which included uh the publicly released memoranda that we talked about the last time that that we visited this in which he said, look, notwithstanding the fact that there aren't alternate slates of electors, the vice president has plenary power to decide whether electoral votes are valid or not, and and we showed you that probably that was a pretextual position. But one of the lingering questions that you had for me, to which I had to answer, we don't have great evidence right now, is from a criminal perspective, you have right? To know that the legal position you are taking is untenable in order for it to be a crime under 18 U.S.C. 371, if right, you don't have dishonest or corrupt intent that doesn't count.

0:17:28 Thomas: Therefore, let's play as dumb as we possibly can so that I could never have intent.

0:17:32 Andrew: That's right that's right, yeah. Yeah. So then the question is, is there evidence that John Eastman knew that he was making up this position on January 3rd, and we introduced some of that.

0:17:45 Thomas: Yeah, it was like the only maybe Clarence Thomas one where like this will get 9-0 or maybe 8-1.

0:17:45 Andrew: Right yeah. The yeah. That's right, that this would lose 9-0, that sort of thing, and and I think you and I, I walked away from that going, if that's all the evidence there is, then it's probably not a slam dunk against John Eastman. It may not even be more likely than not against John Eastman. And Trump is going to skate, right? Trump will say, I just totally believe that. Right. So then the question is, that all there is? And the answer is it's never all there. So now let's jump to Exhibit D from this filing. There's a lot going on here. I want to start with the legal significance of this document. And I'm going to describe who it is and the background and boy, is it amazing. But this I think provides evidence of where the 1-6 committee is going. So this is an email from someone uh at poarc.com, their address is redacted, you so I just typed poarc.com into the Google machine, right, and it takes you to the Property Owners Association of Riverside County, right, California non-profit.

0:18:01 Thomas: Yeah, right.

0:19:04 Andrew: And I went to the uh contact us, about us page, and it lists four people as being a member of this organization. Tax exempt 501c6 non-profit public policy research, education, educational and advocacy organization to promote free enterprise and economic growth and protect the interests and private property rights of landowners and businesses in the formation of implementation of public policies. All right, so, you know, your your typical kind of right-wing civic organization. Fine, executive director Bruce Colbert, I typed him into Google with Trump. No connection. A board of directors, Damian Gerard Curran, no connection to Trump. Jonathan Mate, no connection, correct, to Trump. Ray Haynes. Oh, look, former executive director of Alec, the American Legislative Exchange Council.

0:19:52 Andrew: They write all the right wing model bills. Regular contributor at townhall.com. Huge prominent Trump supporter, defender, member of Trump's inner circle. This is an email from Ray Hayes. And Ray Haynes is and I don't know that we need to bring out the clown horn for this bat shit. Crazy. OK, so crazy.

0:20:12 Thomas: That shit was ruled by the high council as okay and

0:20:14 Andrew: Yeah. So crazy that John Eastman does a double take. It is like I'm not sure I'm down for that one, my friend.

0:20:23 Thomas: I'll tell you why. It's because we ruled that chicken shit was okay and so if we didn't allow bat shit, there's going to be a whole discrimination allegation between chickens and bats, exactly.

0:20:26 Andrew: Oh, yeah. Yeah, it's speciesism. Absolutely. Absolutely.

0:20:33 Thomas: Yeah, that's why we went with that.

0:20:35 Andrew: OK, in arguing with Ray Haynes, and I'm going to tell you what Ray Hayes wants in a minute, but it's not important, for this email, which was sent Saturday, December 19th, 2020, from John Eastman to Ray Haymes, and it is arguing against the more extreme things that Ray Haynes wants to do. And Eastman says, as for the legislatures, right, it's the state legislatures, the the folks with whom John Eastman has been point, the man, not a one has acted, electors did in seven states, and he's got electors in italics, but unless those electors get a certification from their state legislators, which did not happen, they will be dead on arrival in Congress.

With such a certification, we will have a deadline that will invoke Section 15, but the textual claim that the executive certification would prevail in such an instance over the legislature certified slate is contrary to Article two. And at that point, we might well have the opportunity for a Supreme Court resolution without the need to trigger the Pelosi scenario. Right. And the Pelosi's scenario is no one is elected president. And so as of January 20th, you go to, there's no president, there's no vice president. The Speaker of the House becomes president. We've talked about that. This is a really significant admission that John Eastman, in December, knew that without certification by the state legislature, right, that it would be, quote,

0:22:11 Andrew: Dead on arrival in Congress, that this is not a basis for rejecting a slate of electors in favor of another.

0:22:18 Thomas: It was the subject line of that one, mens rea, my mens reа.

0:22:24 Andrew: Yeah, this is, the subject line is "Latest Draft." But

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0:25:46 Andrew: Now I want to work backwards because I think it is important to know how the story that the January 6th committee is going to tell, because this is not just about how do lawyers parse this out and how do we make sort of the minimum case against these folks, but also how do we persuade a country where a lot of non-Trump voters have moved on, I have right? Those conversations all the time where people will say, I know, I get it, I was not a fan of Donald Trump, but, you know, let's move on, it's over, it's in the past. And the January 6th committee, their job is to is to make this salient in the way that we made Watergate salient to the public in the 1970s. Again that same Saturday from Ray Haynes to John Eastman talking about his despair at their having lost the election losing in all of their lawsuits that they had filed to date.

0:26:55 Thomas: Well they got that one where they could stand a little closer to the

0:26:55 Andrew: Right. Sneeze on people. Right. Exactly. I'm going to cut through the first like six pages of meandering nonsense. But the the U.S. it's it's seven paragraphs.

0:27:08 Thomas: Yikes wait this isn't is this an email someone

0:27:12 Andrew: This is an email. There's a huge email chain. It's not really six. But it's but it's, it's three. I mean, it is, it is two, in single spaced. Based Uh, yeah, it's it's a huge, huge email, and it is a deeply disturbed and unhinged individual who has written this. The right Supreme Court has rejected or ignored the previous election challenges cases, sending a message that it will not get involved in this election. If the court does get involved and overturns and remedies the election, then my recommendations are not necessary. And I'm skip a paragraph. "As a result of the Supreme Court's non-involvement, electoral Electoral disputes in the joint session of Congress will remain unclarified and unresolved. An irreconcilable stalemate could develop that would result in the failure to choose a president-elect or a vice president-elect. Disruption, procedural uncertainties, and delay favor Democrats. Forty objections from Democrats would run out the clock until January 20th in the event that no person receives a majority of the electoral votes. Unresolved electoral disputes within Congress would preclude a vote in the House by state."

0:27:14 Thomas: Wrote a oh my god oh I was gonna say oh yeah

0:28:12 Andrew: "Unresolved disputes would result than the Democrat Speaker of House being appointed acting president," by default that's the Pelosi scenario, "the acting president would nominate a vice president who would take office upon confirmation by majority vote at both houses of Congress under the 25th Amendment. The procedural status quo ensures that President Trump will be denied re-election and that a Democrat will be chosen or appointed president," lost an election, but If, "if the Supreme Court does not remediate this election, than the present strategy of having states send competing slates of electors to the president of the Senate and challenging the electoral votes received by Joe Biden ends up relying upon the procedural quagmire of the joint session. Congressman Mo Brooks displays courage in his plan to challenge the votes of various states with flawed election systems.

Yet any challenge would be voted on by both houses of Congress, and it is unlikely that Representative Brooks would persuade the Democrat House to join him. Attempts to challenge votes in recent past elections have failed." Senate, Senate Majority Leader Mitch McConnell recently said, "but our system of government has processes to determine who will be sworn in on January the 20th. The Electoral College has spoken. So today I want to congratulate President-elect Joe Biden. Our nation needs us to add another bipartisan chapter to this record of achievement."

0:28:34 Thomas: Yeah.

0:29:23 Andrew: Right. So this is where Mitch McConnell being a traitor starts, right? "Mitch McConnell warned Republican senators Tuesday during a private caucus not to object to the election results on January 6th. Even like if electoral votes could be removed from Joe Biden, a stalemate could develop as noted above. The Trump team continues to argue they are right. Yet they forget Voltaire's famous statement, 'it is dangerous to be right in matters where established men are wrong.' Legal scholar redacted wisely and recently said, understood the likelihood of the outcome, don't be expecting things that are unlikely to happen. The leadership and the the procedural quagmire would lend to President Trump's electoral defeat.

His defeat and the consequent social upheaval are not acceptable outcomes. President Trump is correct at saying, 'we're at war, these people are sick, they're sick, America has been attacked by enemies foreign and domestic.' Attorney blank is correct in his tweet, 'our country is headed to civil war. 46 percent of Americans believe there was election and voter fraud,' according to McLaughlin and Associates poll. "The majority of Americans will find it intolerable to witness this election stolen from them by leftists who seek to demolish America's freedom, heritage and faith in order to fundamentally transform America from capitalism to socialism." Slight check, how's that working out for you? Enjoying the transition to socialism that that Joe Biden ushered

0:30:45 Andrew: In over the past two years? Yeah.

0:30:45 Thomas: As The tweeters constantly say, I wish we had this version of Joe Biden that the Republicans keep telling us about, yeah.

0:30:49 Andrew: Yeah. The By the way, simultaneously, you sleepy Joe Biden who's senile and doesn't do it, but he's also evil, calculating, socialist

0:30:59 Thomas: Yeah. Well, You see, he's a puppet for AOC. Who's behind this, I don't know.

0:31:03 Andrew: Yeah, right. "The imposed transformation of America from capitalism to socialism is such an enormity of change that it would likely result in the same same social upheaval has occurred when America faced the choice between freedom and slavery during the Civil War." All of that is a setup for this line. "A national revote," side note, that's not a thing, is clearly a better choice than President Trump's defeat or a civil war. A Democrat victory would institutionalize election fraud and socialism with outcomes like those in Venezuela. There would not be another free and fair election in America." Cut, this is a person wrote this, okay, not even going to read the rest of this unhinged rant because I want to get to, all of that is to set up the remedy that he wants Eastman to impose, right? Eastman is the point person on this, he's writing to Eastman and saying, this is a direct quote, this is Exhibit D, page three, "the most reasonable, realistic and workable path to victory is a national revote for all federal candidates supervised by the military through

0:31:24 Thomas: Re-vote. A national Oh.

0:32:12 Andrew: The use of the insurrection act and limited martial law." So yes, this is Ray Haynes calling for America to forcibly revote at gunpoint under the Insurrection Act.

0:32:12 Thomas: My God. Yeah.

0:32:24 Thomas: You See, we're gonna need everybody who cast their normal votes to redo it with a gun pointed at them, uh, it's supervisory, uh, to redo their election, to redo, do the whole vote, otherwise we're gonna have really bad elections like Venezuela, yeah.

0:32:38 Andrew: The the, yeah. Yeah, this is calling for the incumbent president, having lost a fair election, to then declare martial law and at gunpoint ask you, are you sure about that vote you cast in November? Wouldn't you really rather cast one for the person who controls the person with the gun to your head?

0:32:58 Thomas: Andrew. Does Article, Article Two have a best two out of three provision for

0:33:04 Andrew: And no, that's not the way any of this works. And I'm about to utter an introductory phrase that I never thought I would utter. I kind of feel like we should call up Larry Lessig and commemorate this moment give credit to John Eastman, comma. Response is.

0:33:19 Thomas: This fucking guy, am I

0:33:23 Andrew: His response is that the salutation is blocked up. And again, I'm positive this is right. I'm not going to sign on or support anything that calls for the use of the Insurrection Act. If we cannot provide enough proof of fraud to convince state legislatures or the Republican majority in the Senate, then even contemplating the Insurrection Act as a non-starter, he writes non-started, but that's a typo. I suspect it would lead to a constitutional crisis of the military ignoring such an order. Please, I beg you, desist from this path. So, by the way, John Eastman knows what it feels like to be that guy, right? This is

0:33:23 Thomas: Right? Wow. Yeah. Yeah. He's

0:34:04 Andrew: What Greg Jacob was saying to him.

0:34:05 Thomas: Like shit. Is that what I look like, geez.

0:34:06 Andrew: Yeah, that's what I look like. And then you get another unhinged page-long rant that says, Dr. Eastman, would the limited use of martial law without the use of the Insurrection Act be applicable? Have you

0:34:07 Thomas: Jeez. Just some light martial law. Can we just do a little bit of martial law to do a re-vote on this election?

0:34:19 Andrew: Yeah And that's what led to where I started it, which begins with, I have read through it, no to martial law as well. I will not be associated with any such effort, and again, I implore you not to advance it either. I

0:34:37 Thomas: Not sure if this was important, but who is that legal scholar that was like unnamed legal scholar? I'm just curious. Do you have it? I imagine.

0:34:44 Andrew: Do Not I Do Not know, yeah.

0:34:45 Thomas: Oh, no guesses. Oh Oh, okay. It's Randall Eliason, isn't it?

0:34:48 Andrew: Yeah I'll ask our buddy Randall Eliza. That it could be, uh, I mean, you know, it could, it, we don't, we have no evidence that it. It is not Randall Eliason. How about we say it that way? OK, so it seems to give some evidence that John Eastman knew when, as early as December 19th, when dealing with the people that to him were lunatics, that unless the states, the state legislatures certified alternate slates of electors, there's no constitutional basis to throw out the electors. Do we have better evidence of that? And the answer is, we do, in fact, have significantly better evidence than that.

0:35:42 Andrew: And where that comes from is this comes from. And I am trying to figure out what member of the Pennsylvania state legislature wrote to John Eastman. You people are suggesting that it is the Republican gubernatorial nominee. But, you know, we just don't know. What we do know is concurrently with and in fact, two weeks before this email went out, a member of the Pennsylvania State House of Representatives wrote to Eastman after Eastman went down to Georgia to try and plead with the Georgia legislature to replace their slates of electors. And he writes, Professor Eastman, I found your testimony before the Georgia Senate to be compelling.

0:36:28 Andrew: Here in Pennsylvania, numerous other frustrated colleagues and I are searching for legislative solutions to our current national predicament. And again, current national predicament, interesting euphemism for losing a fucking election. Forgive me, as I'm not an attorney, but my takeaway from your testimony was the following. Please review and let me know if it's an accurate assessment of what you said. And then it says, Because the U.S. Constitution vests the authority to create election law in the state legislatures, and because Pennsylvania's judicial and executive branches issued decisions and guidance which contravene the election law the Pennsylvania state legislature created, resulting in an unlawful election, the state legislature can exercise its plenary authority to appoint presidential electors regardless of restraints existing within Pennsylvania's constitution and statutes because of the supremacy clause of the U.S.

0:37:15 Andrew: Constitution and because the act of appointing presidential electors is a function of the U.S. Constitution. I'm working on this premise, right? So that's what he writes to Eastman, and Eastman says, your summary is spot on. And then he talks about having drafted the resolutions in Florida in 2000, which were used in Bush v. Gore, and says, what happened in Florid is both the House and the Senate had drafted identical resolutions, and those had passed out of committee on a party line vote. Floor votes in both chambers were scheduled for the Tuesday and Wednesday following, but the Supreme Court's decision in Bush v. Gore mooted the issue. Hope that helps, feel free to send any follow-up questions you have or call me at, and then they very kindly redact his phone number, which is a shame because otherwise I certainly would have read it as a matter of public interest here.

0:38:01 Andrew: He writes a PS, and this, I think, is again from a legal perspective what I would call another smoking gun. Here's the PS. PS, I do not think the letter to members of your state congressional delegation was helpful. Our side can object to the slate of electors all they want. One, an objection signed in writing by at least one member of the House and one member of the Senate results in the two houses breaking into their separate chambers to resolve the objection. Okay, this is his earliest December 4th analysis of the Electoral Count Act? We've heard the position that he articulates to Greg Jacob on January 3rd. The question is, was he lying to Greg Jacobs?

0:38:47 Andrew: Did he, was that pretextual? Did he know that argument was nonsense on January 3rd? Well, here's how he describes it a month earlier, when there was still time to get state legislatures to appoint an alternate slate of electors. Continuing, if that's in capital letters, and then in italics, both houses then agree to the objection, is the slate deemed invalid. If the house doesn't agree to the objection, as is almost certain, the vote here being by majority rather than by state, then the objection is not sustained and the slate is counted. 3 U.S.C. Section 15, that is the Electoral Count Act. So don't let your colleagues rest on that letter.

0:39:34 Andrew: I understand that it's legalese, and I understand you have to do some parsing before the American public. But that is, in my view, as good a proof as you can get that on December 4th, John Eastman's opinion of the Electoral Count Act was not that the vice president had plenary authority to just like pick them, but rather that you had to have a valid objection agreed to by both the House and the Senate in order to throw out a state's electoral votes, unless you have an alternate slate of electors that has been certified by the legislature. And you put that plus Exhibit D together, those things didn't happen. And so John Eastman knew, as of the end of December, knew as he was preparing the Wargaming memorandum, that they didn't have a viable argument under the Electoral Count Act, and it was time to come up with something else.

0:40:31 Andrew: It was time to create a new story that was outcome determinative, that was a veneer of constitutional respectability to keep him, to keep Donald Trump in office. Us aided by, this is another new thing that we learned thanks to the one six committee's documents, and that is the John Eastman war gaming memorandum, right? The two memos that we go through that outline the scenarios, written by John Easton, was actually written by a guy named Kenneth cheese bro Bro, he's a Chesebro, and unlike John Eastman, Kenneth Chesebro has been cooperating with the one six committee from the very beginning.

0:41:04 Thomas: Chesebro.

0:41:19 Thomas: Cheese bro? So this is why we haven't heard of this Chesebro. Because I think I would remember. I never forget a Chesebro. Is that why we have cheese hurt him? Because if he's cooperating, then he's kind of in the background. His name's not coming out on stuff. Is that it? Oh,

0:41:23 Andrew: I Yeah That's Right, he shows up on the Un-American Bar list. I, I think I've mentioned this one before, this is a great resource, it is Un-American Bar.com, uh, and they keep tabs on everybody who has appeared in any of the Kraken lawsuits, so Ken Chesebro is a Texas lawyer, and his entire, his entire blurb is, Ken Chesebro went to Harvard but does not belong to a law firm and has a thin legal resume. He joined Trump late in the failed effort to steal the 2020 election, adding his name to a case intended to disenfranchise Wisconsin voters. And then it has his email address and his office phone number, which I, I guess I could read, that's public information, 617-895-6196.

0:41:49 Thomas: Yeah.

0:42:17 Thomas: So you can call that if You're like, get me Cheese bro, there's only one man for this insurrection, and it's Cheese bro, get him on the line

0:42:19 Andrew: You You Could But You know, only if you absolutely needed, needed to have, the, the legal talents of Kenneth, uh, Chesebro on your team. March 1st, 2022, uh, Ken Chesebro was sent a letter from the January 6th committee and said, pursuant to House Resolution 503, we are issuing a subpoena that compels you to produce the documents set forth by March 15th and appear for a deposition on March 22nd, which we have every evidence, uh, uh, that Chesebro did and produced these documents. And so from Chesebro's documents, we have the fact that he, he emailed John Eastman a lot, and unlike, uh, Ray Haynes, Chesebro's legal arguments were workshopped back and forth, uh, by and between him and Eastman in order to come up with the draft that was then released as the Eastman memorandum, but as far as I can tell, this really kind of ought to be the Chesebro memorandum.

Um, he, uh, compiled things from a bunch of sources, sources, including Chesebro went to a guy named Judge James R. Troupis. And if you're wondering who the hell is Judge James R. Troupis, he also shows up on the Un-American Bar. He is a former judge in the Dane County Circuit Court before he turned to the business of trying and failing to throw out ballots. His meritless lawsuits were tossed out of court and Joe Biden was awarded Wisconsin's 10 electoral votes. So he worked on multiple Wisconsin lawsuits, including Trump versus Evers and Feehan versus the Wisconsin Election Commission.

0:42:26 Thomas: Yeah

0:44:06 Andrew: One was a state, one was a federal lawsuit. And the judge in that case said, plaintiff seems to have made up the quote in his brief that purports to be from a Wisconsin case. This court has read that Wisconsin case three times and cannot find these words. The plaintiff wants Donald Donald Trump certified as the winner of the Wisconsin election as a result of the plaintiff's vote. But what he asked for is for Donald J. Trump to be certified the winner as a result of judicial fiat. This court is stymied by the plaintiff's assertion that his interest and injury are identical to that of President Trump. If his interest is solely in getting President Trump reelected, as opposed to having his vote be counted, the court is aware of no constitutional provision that gives him the right to have his candidate of choice be declared the victor. I could, go on.

0:44:20 Thomas: My god.

0:44:46 Thomas: That would produce a lot of lawsuits each election. I'm glad we have this list of absolute horrible insurrectionist lawyers. Is anything gonna happen to these people? Can they all be disbarred at once? Can we control just X cut.

0:44:49 Andrew: Sure was. So I Look, We've actually had considerably more success on disciplining the lawyers that are involved in this than we have on, you know, holding the political candidates available. So, you know, the the bar associations of various states are not doing too bad here, in any event.

0:45:09 Thomas: Yeah. So Yeah. I was just gonna say Can you have everything in front of you, you're a brilliant legal mind, you can keep track of all this and you've got the documents. Can we set the the cork board with the the yarn for everybody? We got a cheese bro we got an Eastman, we got to everything. Where do we sit here in this uh conspiracy, right?

0:45:18 Andrew: Yeah. Yep.

0:45:34 Andrew: That's excellent. Here's how I put it all together. Limited evidence that we have that the January 6th committee introduced in in connection with the argument in a civil court in the Central District in California as to the privilege that attaches to John Eastman's emails, right? That's what this case, this specific case is about, which by the way, they're going to win, that's abundantly clear, we started off with that, but that evidence tells us a slightly richer story than just what we already knew, what that court has already determined, and what the court is likely to have ruled by the time this episode airs, which is that the crime fraud exception applies here, reiterating its findings that Eastman and the president conspired to break the law, which it has already found, and that therefore those documents should be produced to the 1-6 Committee. All of that's going to happen. And that's a very good thing. In addition, this gives us a richer picture of what was actually happening in Trump world, because these are documents from the November and December time frame.

0:45:55 Thomas: Cheese.

0:46:43 Andrew: And what we've learned is this. We have learned that even before the election took place, Donald Trump was securing assets within the Republican Party and within the larger kind of Republican think tank world to begin building the case for overturning the results of the election. We learned that after the election, but before the votes were finally counted and before Joe Biden was certified the winner. But when it was the writing, the handwriting was getting close to being on the wall. Not to Right. Say we weren't still panicking And in a level of uncertainty. But, you know, the day of the election, the Day After, two days after that folks in Trump world immediately began a pivot to, well, we can just have the state legislatures take over and appoint their own electors and throw out this whole democracy thing to start with.

0:47:38 Andrew: And then we know that John Eastman was the, was the point person to do that. He circulated internally the memo of November 9th, which is just, again, just a couple of days after the election, came up with an article that was then publicly released on the constitutional authority of state legislatures to choose electors. He went to the seven states that Republicans had targeted to flip, Arizona, Georgia, Pennsylvania, Michigan, Wisconsin, and the like, and tried to convince the Republican legislatures in those states to appoint an alternate slate of electors and failed, went, went 0 for 7, a Kraken-like 0 for 7.

0:48:21 Andrew: And we have evidence that when that happened, John Eastman knew with 100% certainty that his candidate not only, he knew, he already knew that he had lost, but that now, that any arguably legal measure, Any debatable point, point was, uh, passed right There was no, there are gonna be objections, but, you know, as he said, object all you want, the House and the Senate are not going to agree, they're going to get thrown out and those votes will be valid, right? That's what Exhibit N says. And so they began to concoct an alternate theory. They workshopped it, they outsourced it to cheese bro cheese bro outsourged it to this judge, Troopers.

0:49:08 Thomas: Bro and Troopas. Classic insurrection duo, the hijinks they get up to, cheese bro troopis. Yeah.

0:49:15 Andrew: They circulated to multiple drafts of what would become that one-third memorandum that was then, uh, taken to Mike Pence's council, Greg Jacob, and I think these documents, and I, I think the one six, if I can tell that story with the tiny limited fragments that we've passed out, I think the one sixth committee will not have a problem telling the story that said these were desperate folks in panic mode to keep their guy in office. And they workshopped everything.

They listened to the lunatic who was like, well, why don't we just declare the Insurrection Act and have limited martial law and have a national revote at gunpoint? They planned this, they thought of this. John Eastman's response to that was, no, I'm not going to do the insurrection thing, but he kept talking to this guy, right? He didn't scream, you know, like I'm thinking about, you know, we get pitched all the time, uh, hey, would you like to have this Republican candidate come on your show as a podcast guest, and I come up with increasingly creative ways to, tell, uh, the the uh PR firms, you know, go F yourself. John, yourself, Eastman didn't say go F yourself, right? He didn't say you're a dangerously unhinged lunatic, I never want to talk to you. He said, come up with something that isn't the Insurrection Act. And then he came back and he was like, well, what about the light insurrection, you know, some, some light, not using

0:50:36 Thomas: Closer.

0:50:36 Andrew: The Insurrection Act, but, you know, declaring a modest form of martial law. And John Easton's like, all right, no, no martial law either. But, you didn't cut him out of the loop, continued to chat, continued to workshop. And after they hit the certification deadline, concocted the theory that they knew to be nonsense and tried to peddle it to Greg Jacob. Greg Jacob turned out to be A, of reasonable intelligence and B, of reasonable integrity. And looked at this and was like, you do realize that this is complete nonsense, right? And Eastman was like it's complete nonsense. Clarence Thomas might vote for it. And then they workshopped he was like all right I would lose nine to nothing in the Supreme Court. It completes up the end of that story. And then we had the insurrection. And then you see John Eastman at the direction of the president of the United States on one six after the Capitol has been breached.

0:50:41 Thomas: Warmer. Yeah. And

0:51:37 Andrew: After the insurrectionists have been cleared, while the Congress is reassembling, take one last desperate ploy of, hey, um, since we've already, you know, departed and done some criming, well, what's a little more criming? Uh, and Greg Jacob says, yeah, good night, John, I'll talk to you some other time, we'll have a bottle of wine, I'll talked to you sometime, we're going to do any more. And, well,

0:52:01 Thomas: Nowhere in there, did I hear Trump, but it is it just assumed that we could possibly get him to, because of, you know, or is he going to get off, as I always say, by the, you know, by the Mafioso, never actually putting it on paper and always implying stuff and always doing verbal conversations.

0:52:19 Andrew: What I will say is the connection to Trump here. And again, remember, this is the subset that the one six committee has released that is relevant to Eastman. So you don't have to prove Trump in order to get Eastman stocks. Right? Right. So I hope I will say what I said to you two months ago about Eastman. Which turned out to be true, which I believe will be the case. I think there needs to be more to connect up Trump. I believe that there is more. But what we have that connects up—don't forget, I did mention this—is we have the EOP email, WHOEOP.gov. I'm inferring Jared Kushner, could be someone else, transmitting the November Eastman memo. The actual memo that says, hey, state legislatures can choose their electors so long as they are properly certified and they cast an alternate slate, was circulated to the president in November.

0:52:27 Thomas: Mm-hmm. Right. True, true.

0:53:19 Andrew: And so when you want to demonstrate that everything Eastman knew is something the president knew, you have a high ranking White House executive office of the president official, possibly Jared Kushner, sending to Donald Trump in November the article that is consistent with the views that Eastman expresses. Right. Which is, hey, we need to get state legislatures to certify alternate slates of electors. And oh, look, what didn't happen? Those states didn't do that. Would I like more? I would like more. Do I believe that there's more? I believe that there's more. And again, remember, ultimately, the question is that juries infer criminal intent all the time. It's a bigger ask to ask them to do that of a former president.

0:54:05 Andrew: But at some point, you know, you put it together and you have to weigh the testimony of somebody who says, you well, I never said I agree. But in fact, I agreed with all of that. Well, did you see this? Did you see that? Did you say this? Did you do this? Did at some point, know, that that you evidence becomes sufficiently cumulative for a jury to go, yeah, OK, some at point, you you you knew that these were bad arguments, but you didn't care because if the bad arguments were true, they would allow you to stay in office. And that is the ultimate goal of the January 6th committees, to lay out the case in clear and compelling language to the American people of, hey, this is a White House that looked at its electoral loss and had an all hands on deck moment that said, this This is a national emergency.

0:54:55 Andrew: This is a constitutional crisis. We lost. What can we do to undo the results of that? And the evidence here, I could go on and on, I've read some of it to you, is overwhelming that that's the view. It talks at great length about, there's a long discussion about faithless electors and it's like, oh, you know, we got a lot of never Trumpers in those states, right? Like it is the fascist overtones. I say the fascist overtones. We have a guy calling for a redo of the national election at gunpoint. Right. That is the definition.

0:55:23 Thomas: Yeah. It's more like the tone.

0:55:27 Andrew: Yeah. The fascism is strong with all of these folks. I don't want to—there's a reason we didn't do this as a bonus episode, not the least of which is we've done a lot of bonus episodes lately. But I think this document is a smoking gun document from a legal perspective. Is it the smoking gun document that will have Donald Trump in an orange jumpsuit? Not by itself. No, it isn't.

0:55:30 Thomas: Yeah, the chorus.

0:55:52 Thomas: Well, As you say, I mean, this, correct me if I'm wrong, is all this stuff that you have currently seen only to serve the purpose of whatever they need to accomplish in that civil trial against Eastman.

0:56:03 Andrew: To, to convince a court that has already ruled that John Eastman has committed a crime to release additional emails relevant to that crime that the court has already concluded. Yes.

0:56:09 Thomas: Yeah. Okay. So it's not as though this is like, here's all the stuff the committee had on trying to prove Trump's guilt or something. It's not, it's, do you think we can expect with these, hearings coming up, when's the time when you're going to stop telling us we don't even, who knows what else they have? Like when's going to be the final, all right, right, this is what they have. Do you think it's going to be the culmination of these hearings?

0:56:18 Andrew: I I think it will be the end of June. We're not talking about, oh, keep waiting. Oh, keep reading. Yeah. Yeah, I Think I Think at the end there are two public hearing dates, June 9th and June 23rd. And if that has not if that has not moved the needle, right, then I'm with you, right, then I will say, okay, um, me eight times shame on me no oh

0:56:41 Thomas: And all the way, oh, wow, they're doing hearings all month? Wow, a lot of space between them, huh? Oh, yeah, no, I just want to know when, yeah. I'm not saying, I'm just saying, doubting, I would just want know when there's no longer going to be the, for lack of a better word, the excuse of, well, there's so much more that we, you know, I just wanna know when we get to see that. When will we be done with that? There's so so much more we haven't seen. And I'm not blaming you for that. I just curious when, when that will be.

0:57:15 Andrew: No no no I did I want to admit the possibility to myself, the rather large possibility, given, you know, the strange new world in which we inhabit, in which truth and crime doesn't matter anymore to a huge segment of the population so long as their god king continues to be their god king. Um, that was not a variable that I took into account in 2017. Right, we talked about Yodel Mountain. And so, is there a possibility that Jamie Raskin, that the one six committee, that Liz Cheney, of all people, go out and make their case, and it is damning, and it is horrible, and it lands with a thud? That's right, possible. I want to steel myself for that.

There are a lot of negative potential outcomes, but, but I also want to focus on, with all that as a caveat, right, this committee is full of very, very talented, brilliant people who have spent pretty much the entirety of the last 18 months of their legislative careers doing nothing but working on this and have taken it as seriously as you possibly can, as comprehensively as you possibly can. And their job is to make the case to the American public that the Trump administration engineered a coup to steal an election. And I think they can do it. I think there is, you know, what they have released out of the hundreds of thousands that they have, that are, you know, eye-opening—put the police siren graphic up on Twitter and share them out. If you want to join me on Team Optimist Prime, I think June is going to be a significant month.

0:59:01 Andrew: And that is the opportunity, you for us to go out and make our case. And, echo a you little of Larry Lessig here, we make our case to the public and the answer is, you well, we don't care because gas prices, Amber heard what, know, at some point you've done your job, you know, like at some point you got to do the, I don't know, the Kent Brockman, right, like I've said And democracy just doesn't work. Right. Like I hit it. If you can't persuade the public to care about this, don't know what you can do. And so, you know, I'm going to continue to do my tiny part here of convincing the public that you really ought to care about this. You Know, and this is this this is, where that case gets made. So buckle up.

0:59:45 Thomas: Right. Well, we I can't wait for the, uh, the hearings. That's going to be, I'm sure we'll have content related to that. Stay tuned. Thanks for the breakdown, Andrew. Looking forward to it.

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1:03:43 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,

1:03:52 Thomas: Now it's time to thank our top patrons, our Hall of Famers, our all-time greats. And, uh, you know, I, uh, I put my finger to the wind and I felt like this is a quintile month, you know. I just felt it, I felt it in my bones, that it was like a harvest moon, it's kind of a quintile months, wouldn't you know it, we're dividing into five. And, uh, reading our hallof Famers that we can thank them every single month for being our top patrons, at patreon.com/law. And Andrew, it's your turn first.

1:04:19 Andrew: You... oh, first, I, I need to tell you, my son, who plays Magic the Gathering, in light of last Friday's patrons, messaged me to say Colossal Dreadmaw is from Magic the Gathering. So Colossal Dreadmaw is what you're looking for. Anyway, LC, Voodoo Magic Swamp Lawyer, you can literally just drunk dial senators. Well, that is true. I became a Patron to give a Shout out to Kelli, Hi Kelli, Alex Boyer, lenbogan, Moderate Moss, Heather Paek, our forefathers sacrificed for our freedom. When COVID hit, it became our turn to sacrifice them. Everything important, I love this one, you gotta fight for your right to ex parte, the CDC says, take legal, legal advice from a podcast.

1:05:05 Andrew: I'm fast at sex and finish listening to the backlog to hear my name read organically, we still love your name at six, it's so good. Michael Grosnicklaus, it is pronounced amicus, not amicus. Lawyers suck at Latin. Purplecouch.com, that is P-U-R-P-L-E-C-O-U-C-H dot com. Are you supporting a friend through a divorce, or going through a divorce, listen to Assembled Experts at purplecouch.com. Loaf of orange, and the best of all possible dogs, although, oh, I got to pet some sled dogs, oh, it was great. But thank you, MarionTheCorgi, and, uh, take it away, Thomas.

1:05:10 Thomas: Think Visit Trans Vin Vin Diesel at his new lair, the Trans Guild Promenade, I think that's also a magic card, actually, but I could be wrong, Jamie, OA live show, Mardi Gras in 2022 in New Orleans, I don't think that, didn't that already happen, don't demand legal advice from a courthouse filing clerk training at the front desk, politics from a different but enlightening angle, the novel Vortexes is being considered for an option and screenplay, yay, LT, salty Seattle driver asks that you and your friends help me get to 1,000 subscribers on YouTube so I can make a few dollars, Inspired Zombie, my gimmick was listening to the archives, now there's a lot of pressure on their name, yeah, Inspired Zombie, not bad, two toads totally tired, trying to trot to Tewksbury. Andrew will start by reading this legal briefing backwards, which is how we summon our Dark Lord Lucifer.

1:06:30 Thomas: No ducks given this month, at AtomicPenguin7 on Twitter. James Heath, Joseph Vigiano, Dr. Scooplittle, Doug and Heather, Mr. and Mrs. Pusher, I passed my Transgender Health Communication Thesis Defense with distinction, congrats. Hand-woven sustainable textiles for your home and body at KellyWovett.com, and abortion access saves lives, absolutely true. Thank you, top patrons, and

1:06:57 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:07:02 Thomas: And now it's time for T3BE. We were promised that this was the hard, perhaps the hardest question in T3BE history. I think that means I have to have gotten it wrong unless maybe I got lucky. Let's find out.

1:07:13 Andrew: Yeah, so this is a classic, super hard CivPro question. I love it. Our listeners loved it. Fact pattern, restaurant in State A is the subject of multiple lawsuits based from a spill that was on the floor. Plaintiff number one sues the restaurant in state court, in State A, and gets a judgment. Full litigation. The employees were aware of the spill on the floor and did have a duty to warn. Plaintiff 1 then goes to trial and wins, and then the restaurant files an appeal. Now we have another lawsuit arising out of the same common nucleus of operative facts, that is, slip and fall because of the spill on the floor.

1:08:01 Andrew: So Plaintiff 2, who lives presumably in State B, files against the restaurant in federal court in State A. We are told, and you correctly analyzed this, assume jurisdiction and venue are proper, then the question is, can the restaurant re-litigate an adverse filing that that has been made against it, So, right, a state has already determined that the restaurant has a duty to warn its customers of the spill. The question is, is the fact that that was with a different plaintiff in a different state, in a difference court, under a different law, does that change the rules any? And we get a lot of different true things about federal court. And what I love about this question is all four of these answers are very, very plausible answers, okay? So let's go through them one by one, A right?

1:08:14 Thomas: Right,

1:09:00 Andrew: Says, allow the restaurant to litigate the issue of duty to warn because the federal court will apply the law of the state in which it sits. That is 100% true as a background rule. Federal courts apply the law of the state in which they sit, absent a reason to do otherwise. That is the default rule. That's how you can have a state law trial in a federal court. The federal court sits in Maryland. They're like, yeah, we can apply Maryland law. We're good at that. B, evaluate whether justice would allow the use of non-mutual collateral estoppel because the federal law will apply its own law on procedural issues. That was your answer, by the way.

That's also true, that sitting on top of and superseding the kind of general principle of federal courts apply the law of the state in which they sit, are other principles that can apply. One of them is, when it comes to procedural rules, there's no reason to think that a state should care about its procedures the way it cares about its substantive laws, right? So, when a state passes a substantive law, it is presumed to have a very strong interest in that substantive law, think about states like

1:09:16 Thomas: Right. I

1:10:06 Andrew: That prohibit non-compete clauses, like California, for example, um, that is expressing something about the character of the state of California, right, saying, hey, we think these kinds of actions should not go forward. And so you give force and effect to California law when you're a court sitting in California, the idea is, presumably, hey, states care about this. But suppose California gives you, you know, 37 days to answer a motion, right? The federal court can be like, you know what, we don't really think that that expresses something about the character of the state of California. It's a rule of procedure. The federal courts can follow federal law when it comes to procedure. Answer right, C, says, prohibit the restaurant from litigating the issue of its duty to warn because the federal court will apply the law of State A.

1:10:55 Thomas: Am very curious to hear how that could make sense.

1:10:58 Andrew: A. So here's how that would make sense? Because state A has reached a final judgment on the merits, right? And so under the full faith and credit clause of the Constitution, a court must give the same effect to a judgment that a court issued, a that foreign court issued that would have in that jurisdiction,

1:11:15 Thomas: Ah Shit When It says the law of State A It's not talking about the law that we already were talking about, about whether or not you can use non-mutual collateral estoppel, it's just saying when there's a verdict in a state, that is called applying the law of that state. I Just Wouldn't Think About It like That

1:11:33 Andrew: Right. So I'm going to work through. And D is delay the case until the appeal is decided. And that, even that is plausible. We've talked about various abstention doctrines, and a key aspect of Younger v. Harris, a substantial one, is that federal courts will not intervene to make a decision on constitutional grounds if there are adequate and independent state law grounds that support reaching a result? And so, in other words, you can tell a federal court, hey, the state court is about to reach a decision of this on state law, and and that will resolve the case with finality. Why would we we need for the federal courts to get involved? You should sit back and do nothing so that we don't have the situation of mutual courts coming to different conclusions.

1:12:26 Andrew: And that gets us to collateral estoppel. The point of collateral estoppel is to prevent a party from forum shopping, from taking a factual issue that has been decided with finality and shopping it around to see if it can do better in other jurisdictions. So when State A reaches a final decision, it has determined, as a matter of law, that the company has a duty to warn its customers of the spill. So then the only question is, right, for adjudicating whether C is correct, is to see if all of the elements of non-mutual offensive collateral estoppel are met here.

1:13:14 Andrew: By the way, you figured out that lengthy stuff exactly correctly? It's offensive because it is a plaintiff litigating collateral estoppel and saying, hey, I shouldn't have to prove that they had a duty to warn. I want to take this other state court that's already said they had a duty to warn, and I want to apply it in my case. That's what makes it offensive. It is non-mutual. You're like, because they don't agree. The other reason that it's non- mutual here is because the parties are different. This is not plaintiff one suing in state B. It's a different plaintiff.

But the issue that was adjudicated would apply to all of the plaintiffs. So the legal concept here is they are in privity. They are entitled to the same benefit of the judgment of plaintiff 1, even though they're a different plaintiff, right? Even though the court only adjudicated that rule with respect to Thomas and Lydia Smith in state A. Well, Andrew and Terry Torres come in in state B, and you would say, right, but the same duty to warn would apply. It was not like the state didn't determine you have a duty to warn everybody named Smith.

1:13:51 Thomas: Interesting What

1:14:26 Andrew: It was you have a duty to warn your customers.

1:14:28 Thomas: If Would be mutual then

1:14:30 Andrew: Mutual collateral estoppel is when the parties are the same.

1:14:33 Thomas: How would they be the same? You see the same exact thing, and I thought you couldn't do that.

1:14:38 Andrew: You can't, but imagine that it were reversed, that right? You sue the restaurant for negligence in state A, and the restaurant is suing you for some other reason in state B.

1:14:49 Thomas: Oh, like the, like it went the other way, and so the restaurant is like, yeah, I want to get this in both those cases, like You're saying if it went away of restaurant, okay, that makes sense, you've

1:14:56 Andrew: Yeah, exactly. Right. So that's how it becomes mutual collateral estoppel. All the parties are the same. So then the last question is, is this a decision with finality on the merits that was central to the adjudication of the judgment in first case? And that last, the law in all three jurisdictions states that a judgment is final until reversed, unless otherwise modified, tells you that it is adjudicated with finality. That is not, not the rule, I think, a majority, in maybe even a super majority of jurisdictions. Typically, a decision has not been reached with finility until you have exhausted all of your appeals.

1:15:39 Andrew: Yep. Feel free to correct me if I'm swinging out of my shoes on that one. I know our listeners will do that, but this is a little extemporizing, but I think I'm right on that. But the question specifies that it is, so this becomes a final judgment on the merits, and is duty to warn an essential element of the law of negligence? It is. So there's a final judgment, all of the elements of non-mutual offensive collateral estoppel have been met. And thus, in order to not, you know, this is coming on the heels of our Friday episode talking about, you Know, the system of dual sovereigns. This really is an example of where it would be offensive to the determination of the courts of state A to say, yeah, we know in your crazy state A, you might think that restaurants restaurants have a duty to warn their customers who walk in the door that they might slip.

1:15:37 Thomas: Exhausted appeals. Oh Interesting, for

1:16:32 Andrew: But here in State B, we'd like to try that all over again. We're not just going to take your damn word for it. And State A would be like, this is not why the federal court system was created, it does not exist so that you can take a state court's judgment, run to a different state, and get a contrary result. No, you don't get to relitigate all that. You should give full faith and credit to the judgment that was reached by the State A courts, because they're just as good as anybody else's courts, even you stuck-up State B residents, that's the thought process. So I love the question, because all four of these are plausible answers, they require you to sort of sort between at what level of abstraction, abstraction the, the federal court is applying different law and for what reasons, um, I'm sorry, you got it wrong, uh, this is, lots of folks are going to get this one wrong, so, uh

1:17:22 Thomas: For those not listening closely, I believe it was answer C, correct yeah. You You know what's sad about this is the entirety of it comes down to just me not getting the right connotation of very simple words that are used in a specialized way, and it's kind of interesting because it is why you need to be an expert in things, because I assume sometime in law school I would have knocked it into my noggin that when you're saying apply the law of state A, that also refers to a ruling in a case, like this.

Like I don't know why, but I would have thought that like a civil case like this, if I sue you for some civil thing, I don't know why in my non-lawyer brain a court deciding something on that is nothing, is not the law, you know what I mean? Like in my brain that's just like, oh, they ruled that way on a thing.

I, it's it's sort of like, you know, OJ being not guilty of murder is not the law about murder, like it's just like a ruling that would a different way, but I think if I were a lawyer and I had more experience with all this stuff, I think that would, the language would have struck me the complete opposite way, and I think I would have gotten this right.

1:17:25 Andrew: Yes, correct, yes I

1:18:26 Thomas: That this was fun, though, because I felt like I really understood a lot of it but just fumbled on one little tiny phrase that I took the wrong way. Oh, that's fun. All right, let's find out who the super genius that got this question right this week is. And it's time for T3BE answer time. Boy, all over the place on this one. This truly was the hardest question. Wow. I saw a lot of people agree with me. A lot of people picked like answer E because they're like, I just don't even understand, so I can't even pick one of the answers. So it was a tough one. I got to read two. Here is the first one. Corbin Neuhauser says, according to you, Dinobots can't talk well because dinosaurs have small brains, but Autobots can talk fine because cars have normal brains.

1:18:35 Andrew: And

1:19:12 Thomas: I love that. But then they say, P.S. Thomas is right, but I picked B. So that's what I'm confused about. But I guess, Corbyn, you also got the right answer. I thought you got the wrong answer for a sec because you said Thomas was right, but, uh, nope, you got the right answer, and you were wrong about me being right. However, here's the actual winner on substance, because I think this person got it and explained it well. Russell at One True Russ says, answer is C, just finished Civ Pro 2 and was worried about an issue preclusion or Erie question, but this is a matter of full faith and credit. State A court's verdict has as much preclusive effect as that state would give it. So the court must apply the law of state A. And you understood what the words meant in the question.

1:19:59 Thomas: And I didn't. I got so close, but failed on that one thing. But you weren't fooled, At One True Russ. So you are the winner. And Corbin is second place for pointing out that Autobots shouldn't be able to talk at all if Dinobots can't talk, as dinosaurs at small brains. I'm sure we'll get a very persnickety answer from Andrew about why it all still makes sense, or he'll never hear this, but either way it's funny. Thank you so much, congratulations, follow At One True Russ, and you're the winner, never ending fame and fortune to everybody, actually to Corbin, to Russ, to basically everybody. You answer, I, there's no rules, if Andrew's not here I can give out as much fame and fortunes I want, infinite fame and fortunate for everybody. Our show, still enough time if you're hearing this on the day to come attend our live Q&A on YouTube, that is Tuesday, possibly today for you, Tuesday the 7th, at 5 p.m. Pacific, 8 p.m. Eastern. We'll see you there. Thanks for listening.

1:20:55 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.

1:21:28 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.