OA604: The Jan 6 Hearings

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 604, and we did a little switcheroo, this is kind of the Friday episode, but that was because there's a rather important hearing that happened, uh, after we record on a regular time. So anyway, I'm Thomas, that's Andrew Torres, lawyer extraordinaire, how you doing? Hmm.

0:01:36 Andrew: I am cautiously optimistic and that I think should be a good theme for this entire episode. How are you doing, Thomas?

0:01:39 Thomas: Well, I'm, I'm doing better because you sound already way better, it's been like two days since we recorded and you sound 50% at least better. So are you feeling better? Or that just audio?

0:01:46 Andrew: Oh, I am feeling a little better. Still, you wiped out from COVID. This stuff sucks. But feeling like maybe things are going to improve and I got a good night's sleep. Like, God, the first four days were like I would sleep an hour at a time and then like cough myself awake. Oh, yeah. It was just the worst. Fingers crossed, cautiously optimistic about the direction of myself, COVID and the country.

0:02:12 Thomas: Yeah. Wow. That's a cool. Okay. How are you going to back that up? I can't wait. I, you know what, Andrew, I didn't even look at the whiteboard because I know we're just talking about the hearing that we all watched. So unless you're going to tell me this is actually a deep dive on like, I law. Frogs fish, fish are bees, bees are ketchup.

0:02:36 Andrew: I do want to do a quick Andrew was wrong. I don't know if it was a full sentence or an out of context, but two separate people said, hey, you know, those regs have been superseded since 1982. And I was like, well, yeah, of course. Right. We've had Democratic presidents since then. But to be clear, on the portion control components that was superseded. The most recent one was Obama in 2010.

0:03:00 Andrew: We didn't ask, but I think it gave a misleading impression.

0:03:03 Thomas: I'll be honest. I think, think I that might be an Andrew's round. Cause I asked you specifically like, Oh, even today. And I'm pretty sure you said even today, so I was given the impression that those were still in place.

0:03:03 Andrew: Yeah. Oh, well, blame covid.

0:03:13 Thomas: So sure.

0:03:14 Andrew: I'm glad we said it.

0:03:14 Thomas: Yeah. Andrew, you have like two, three free Andrew was wrongs that you can pocket those. And even like three months from now, just be like, ah, COVID. Remember COVID that one time?

0:03:16 Andrew: Here's now. If if if I off the cuff said something that was incorrect, I would own up to What it. I meant to say, right, is that this remains a live issue. Right. Particularly the economic pressures in terms of getting school districts and kids to drop out of the school lunch program, program, particularly the funding questions and the questions about how to push back on costs on the local level, continues to be a live issue. Look, we just know so much more about nutrition now than we did 40 years ago. Even if you have a Republican president, you know, it's sort of tough to do. They're like, those kids can take 42 grams of protein for over the course of the day. So, culpa. If if I gave the impression, looked it up. The Obama era guidelines are 750 calories at the high school level, which is way better than 440. So still a live issue, which is what I meant to say. It is not still the exact same regulations. I think the deep dive was important. Important anyway worth worth owning up to it so

0:03:34 Thomas: Yeah, if Yeah, of course. Yeah. All right. Well, after that quick Andrew was COVID, let's get to these hearings.

0:04:29 Andrew: Awc there we go

0:04:31 Thomas: Yeah. Yeah.

0:04:40 Clip: In our first hearing, you will see evidence of each element of this plan.

0:04:48 Thomas: What is it that has you optimistic and is there something new in there that even YOU are excited about that, is going to make the case even better?

0:04:55 Andrew: I think there absolutely is new information. And I want to go over that. I am excited about this. And I think the the Lucy with the football is the right framing for our audience to could who could rightfully say, hey, look, you promised us Yodel Mountain. We went four years without pretty much anybody suffering pretty much any consequences. OK, like, you Manafort went to jail briefly and lost that like ostrich coat or whatever. But like, by and large, you know, Trump is still running around, largely consequence free. And, you know, you promised us it would be different. That's fair. So right before, again, with zero knowledge of what was coming out of the January 6th committee primetime hearing Thursday at 8, at 7:55 I tweeted out, Okay, here's what I'm looking for to make this different than the Muller report, because right when I ask myself what happened with the Muller report, right, here is two volumes, 500 pages, nine specific crimes that the president committed that landed with a thud, right, and why did that happen, and

0:06:08 Thomas: Oh, is this a Barr question, T3B?

0:06:09 Andrew: Yeah. Go ahead.

0:06:10 Thomas: Um, cause Bill Barr, oh, Barr question. Speaking of Barr question, Bill Barr got away with writing a summary that completely negated everything, releasing it about a week, if I remember right, ahead of time that took over the news. And then everyone just didn't read the report like Andrew and two other and AG and a couple other people, mainly Democrats, read it and Justin and Justin Amash and no one else read it. So is that is that the answer? Did I get it?

0:06:29 Andrew: And Justin Amash and that was it, you, you nailed that, was my number one, right? Like, and, and so the the very first thing to think about, if you're going, oh no, I'm not going to have Lucy pull the football away again, is Donald Trump does not control the mechanisms of power right now. And he was not able to get access to this document, to get excess to their information and flood the airwaves with disinformation in advance. And you see that based on how bad we were just one day after hearing now. And, like, the Fox News right wing talking points are ridiculous. Like, they, right, do not pass the straight face test. They are not backed up by, you know, hey, look, like, that, the Dallas Post said, you no, no crime, no collusion, what are talking about?

0:07:22 Thomas: Yeah.

0:07:23 Andrew: Understanding that kind of point one of there's no systematic bill bar level of disinformation campaign out to discredit this in advance. They're reacting and they're reacting in terrified piecemeal fashion. Right. I pulled up. This is, you just a bit from from the raw story. Again, not my usual place to go. I had clicked on it because Elizabeth Warren had tweeted out a link to the, you Democrats still want to expand the Supreme Court. So I went to read the article, the typical raw story, fluff, nothing in it.

But then I clicked or scrolled down to the next one, which was Ivanka Trump's testimony appears to have triggered an emotional outburst from her father. Right. And so this is, if you want to think about, compare this with Bill Barr going on national television three weeks in advance, sending a memorandum out to every news outlet in the country that got picked up at face value. You know, that's that omitted the words "not," right, from the various criminal charges. Instead, we have Bill Barr was a weak and frightened attorney general who was always being played and threatened by the Democrats and was scared stiff of being impeached. How do you not get impeached?

Do nothing or say nothing, especially about the obviously rigged and stolen election, or to put it another way, the crime of the century. I'm not reading where it's caps, you know, every other word is caps here. The Democrats hit pay dirt with Bar, he was stupid, ridiculously said there was no problem with the election, and they left him alone. It worked for him, but not for our

0:08:00 Thomas: Oh yeah. It worked

0:08:53 Andrew: Country.

0:08:54 Thomas: For him. I love that theory. What did he get out of it? He resigned.

0:08:56 Andrew: Well, he got fired, yeah.

0:08:58 Thomas: Yeah. Was he fired or did he, I thought he resigned.

0:09:00 Andrew: Well, we don't know, he he resigned at a time in which you know, yeah.

0:09:02 Thomas: Oh, whatever. He got voluntold to, yeah. He might've

0:09:05 Andrew: Donald Trump didn't want him to be general anymore.

0:09:06 Thomas: Been fired otherwise. Yeah, so, and then step three, profit. And then I had to go through depositions and, you know, like, what is the part where it it worked well for him. I don't understand.

0:09:13 Andrew: Yeah, yeah. I don't know. I mean, I'm sure he'll have a book that sells like eight copies, but yeah, yeah, so

0:09:19 Thomas: Lifelong Republican. One of the worst Republicans, one of the most effective bad guys of the administration. But if you don't, the one criteria now is sign on to the big lie or else. That's all that matters. Crazy.

0:09:33 Andrew: That was my sort of point one, but then I had two things that I really hoped to see from the January 6th committee that, again, I drew a contrast with the Mueller report. And the first was, is there going to be unambiguous criminal framing here? The problem with the Miller report is that it says, while if we thought the president wasn't committing crimes, we would have said like it's there is not one sentence in the Mueller report, or, and this is the really damning part, Right. Like if you if you want to say, you know, I regret tattooing Robert Mueller on my arm, For example, it would be in his testimony before the Senate, not looking into the eye of the camera and saying, I wrote a blueprint for impeachment. The president committed crimes. The DOJ cannot. My view is, again, we've talked at great length why this is wrong.

But, know, it you was clearly his belief that the DOJ could not issue a charging document. So say that, say these are crimes you should impeach. But the Mueller report doesn't say that. So my first question was going to be, is this going to being caught up in like the storytelling X, Y, Z, or is this is going to say these were crimes that Donald Trump committed?

0:09:53 Thomas: Yeah. Yeah, stupid.

0:10:53 Andrew: Well, we got our answer on that first one. Absolutely. Right. The January 6th committee unambiguously. They are using their seven hearings to lay out the seven step process by which Donald Trump engaged in criminal conspiracy to overthrow the election. That should make you feel good because our position was always a position without a clear argument with respect to the Muller report stuff. Right, the bar report stuff was just, well, here's what happened. And then Republicans were like, well, that's fake news, blah, blah. And you, we got screwed out of it

0:11:25 Thomas: Well, in the end, correct me if I'm wrong, but all that matter is out of these hearings is, because will the DOJ file charges, right?

0:11:33 Andrew: Yes and no, mostly yes, in the sense that if the DOJ does not file charges after this, uh, I would label these hearings a failure. Okay. So I think that that is the important gateway question that we ask ourselves, uh, at the end of June. Right? Do we believe that the Department of Justice is going to feel sufficiently emboldened to go out, convene grand jury and indict Donald Trump in connection with the January 6th insurrection? I think I, that feeling and what Democratic politicians say and where they spend their energy in a midterm election cycle is also going to be driven by how people respond to this.

0:12:19 Andrew: Right. If there is no interest and everyone's feeling is, And don't care, whatever, then politicians will do the thing that, you know, Democrats do. Do, right, which is to say, well, you know, yes, this is important, but I really want to talk about like how to lower inflation and gas prices and like it it

0:12:35 Thomas: Yeah. And that stuff is important is one big challenge.

0:12:39 Andrew: Sure but but but you have to decide as a candidate for office what you think is going to be salient in terms of delivering votes. And so I can't stress it highly enough that watching, like, paying attention and telling the people around you who, you know, maybe are kind of middle of the road and maybe are suffering from a little bit of Trump fatigue, to do the like, like, no, hey, look, like, I'm sorry, I stuck around through you guys complaining about critical race theory, for, like, we can, you can watch a couple of hearings on whether we had an armed insurrection in this country. OK, like there's enough attention to to to go around and and just push back on folks who say, well, you know, this is, you have already seen the trial balloon, there's right? Nothing new here, which, you

0:12:41 Thomas: Yeah. Yeah. I

0:13:28 Andrew: Know, which we're going to get to. But yeah, so so that first point, I think, have a committee that is determined to make a case for the criminal indictment of Donald Trump and they are laying it out systematically. This was what Liz Cheney did on Thursday was a textbook opening statement, right? I, had to look up if she was ever a prosecutor. She was a lawyer, but as far far as I can tell not a prosecutor, yeah uh

0:13:50 Thomas: Was thinking that too. Yeah. Definitely a lawyer though. Okay. She did seem to really be making the legal case more so than anyone else I heard.

0:13:57 Andrew: Absolutely and and did so in the, you will hear evidence that shows this, then you will hear evidence that shows why Yeah, that's exactly what you do with an opening statement. And this show sadly is going to drop Tuesday morning. The next hearing is Monday. And the thing, from a legal perspective, right, you're threading this impossible needle. The right? Audience is the American public that let, like, me just leave it at that. Right. Like, not great at following legal proceedings. And so you have to make this very, very specific point that we have talked about on Opening Arguments the show began. And that is with Donald Trump, you have, whenever anybody asks, is he going to be held criminally responsible? The answer is, well, he's going to fall back on the I'm too stupid to crime exception.

0:14:05 Thomas: Yeah.

0:14:47 Thomas: Well, if we ever get that far, because again, I think that at what phase would that be? Would that be if there's actually something charged to him? Because now it's just none of this happened and it's nothing. That's the main Georgia.

0:14:47 Andrew: Right. Right, But but remember, the reason, right, that I have said thought the criminal proceedings against Trump that had the greatest chance of success, I still believe this to be the case, are Fannie, Funny Willis in Georgia in connection with clear statutes where the only thing you have to prove is that the figure itself was fictitious. Right.

And there we can do that because we have the Raffensperger call and we have Trump saying, "Yeah, I won by millions of votes, but I just want you to find me eleven thousand seven hundred and twenty." Right, well, you you tend not to get evidence that good with with respect to everything else, so the question has been, how do we demonstrate corrupt intent? Right.

This is, what, in last Tuesday's episode, right, a week ago, when we were pouring through the Eastman documents, the the question we've asked over and over again is did Donald Trump no and go ahead with this anyway, or is he going to be able to fall back on the position he's made in public of, "No, I I really did think I won by 12 million votes," and that, like, the guy who runs the pillow empire secretly decoded the plan to send the ballots to Venezuela to get marked by Antifa, like, that's a real problem, because if you didn't have corrupt intent, right, if you didn't corruptly intend to interfere with a government proceeding, the fact that we all know he interfered with the government proceeding, it right, is proving that corrupt intent that is going to deter a prosecutor from bringing charges and is going to be a challenge for the primary, challenge at trial. And so I am beyond heartened that the first thing, and Liz Cheney knows this too, right.

0:16:38 Andrew: Right. And it's hard to explain to somebody who's not an opening arguments listener. Because if you just talk into an average person, the average person is going to be like, well, did he do the thing? And we all know he did the thing. And that's why he kind of has this, you charade mentality about it of like, well, you Know, yeah, we all Know he sort of did the Thing. But the question is, did He do the Thing knowing that He lost? Did He do The Thing?

0:17:00 Thomas: Which we also by the way, already all know. It's just do we have enough depositions that might suggest he knew?

0:17:07 Andrew: Yes, that's exactly right. And so I hearing number two is is supposed to be about proving that the president knew that Donald Trump knew that he had lost and that he knew that the, that the plans, the contingencies he was putting into place were not legal, were not backed even by the paperist thin veneer of legitimacy, legitimacy. It was all outcome determinative to keep him in office. And again, we've talked about this in connection with the Eastman docs. We've talked about the breadcrumbs that are left when, when Eastman says, well, you know, now that we've already done some light criming, how about some more criming. Okay, like if that document exists, probably more documents exist. Was I will tell you, and I don't know how anybody can say, you oh, there was, there was nothing, nothing new here.

0:17:54 Andrew: When the first bit of testimony out of Liz Cheney's mouth is here's Bill Barr telling the president saying, I told the president over and over again that claims of election fraud were bullshit. Right. Then having her say we have not seen this deposition testimony yet. This was foreshadowing that his supporters in the room will testify that when Donald Trump heard the crowd chanting hang Mike Pence, Donald Trump's response was maybe our supporters have the right idea. Maybe Mike Pence deserves it. OK, so imagine being the Republican Party and going, no, nothing new here. The president wanted the vice president killed. Yeah. Oh, you didn't know that. We knew that. Well, no. No, I didn't know that.

0:18:42 Andrew: And so, You so that then kind of gets to this, this idea of how much was new on the Thursday hearing versus how much was finally piecing it together for a larger audience. Look, I have to type. You know, I sort of tweeted out, not entirely jokingly, jokingly, okay, uh you know, Liz Cheney is a Show listener, um, a lot of what the Thursday hearing did seemed old news to OA listeners because of the work that you and I have done piecing together not just pleadings but the documents attached to those pleadings in connection with the Eastman case, right, because that's been our sole connection to the January 6th committee, which otherwise has has not leaked, nothing they've done has come out. And so one of the things that we were able to do is look at, okay, what's the minimum amount of information they put out in order to compel the production of more documents in connection with, you one of the chief collaborators. And as you start to look at it, you're like, oh, okay. This is what they're looking at, right.

You know, so let me give you a perfect piece of example, you right, and I have read the Enrique Tarrio Proud Boys, uh, indictment, so we know, and we have talked about on this show, right, the Proud Boys and the Oath Keepers and their secret strike team seven. And their G.I. Joe code names. And, you know, we knew that they were the militarized arm of the January 6th insurrection. We knew that there had a secret Slack channel that planned things out in advance.

0:18:28 Thomas: Yeah, God. Yeah, true. Yeah. True.

0:20:14 Andrew: We know that at some level they were coordinated up through the president, probably through Roger Stone. We still don't entirely know. A while, all right, of this is available if you've been reading the indictments and reading the documents, which 0.01% of the public has done, right, like nobody has, but even I didn't know what was put together incredibly effectively on video, which was the Proud Boys showed up and left the ellipse before Donald Trump began speaking on January 6th, went down to the Capitol in advance, cleared barricades and cased the area, a pretty damning piece of information to have would

0:20:30 Thomas: Yeah interesting.

0:20:54 Thomas: Is it I devil's advocate. I know I'm and I mean this because when we are talking criminal charges, this somebody will be arguing for Trump and they might say, well, that's evidence that Trump wasn't in in charge of this wasn't the the one responsible one for this happening. They they did this before he even made the speech where, you he allegedly might have goaded the crowd into doing this. So isn't that doesn't that cut the other way?

0:21:17 Andrew: It would cut the way if that wasn't exactly what then happened, because remember that the story, in order to exonerate Donald Trump, the story has to be, well, we were engaged in political expression. We didn't like the fact that there was fraud in the voting and we wanted to bring a lot of people together and we just wanted to show our disappointment and express that, this is you our political view. Notice, right, how difficult it is even to try and steal, bought this position. Right. Oh, and and why are you here on the day in which Congress is certifying the electors? Well, because that's the day that the schedulers picked. And Donald Trump said, come down to the to the Capitol.

0:22:02 Andrew: It will be wild. So, right, in order to maintain that story, this has to be a spontaneous event that then just overflowed. And why did it overflow? I don't know. You got a lot of dumbass Trumpers hanging out in the same place. I'm like, whatever. Who knows? But it wasn't coordinated. It wasn't intended to blow up into a riot. It, well, the problem is when you case the joint three hours earlier, it's very, very difficult to argue that this was a spontaneous thing.

0:22:31 Thomas: Yeah. No, I'm sorry. I'm not saying that This was a spontaneous thing is the argument. I'm saying this. Yeah. OK, these Proud Boys, these domestic terrorists. Yeah, no, they had a plan. They went and did it, but it them doing their plan before Trump started had his speech, to to me I would worry about that evidence kind of almost cuts against the idea that he's in control of this, or they did it on his word or any of that kind of stuff. That's what I'm worried About.

0:22:31 Andrew: Yeah. I See. So two, two responses to that. The first is that would still be a significant shift from where the Trump defending right wing is right now, right, if they would concede, oh, this is an insurrection, but it was just, you know, Stuart Rhodes came up with the whole thing, like That.

0:23:13 Thomas: Well, OK, but that's you. I think you've shifted perhaps the goalpost a little bit. I'm we're talking about what if Liz Cheney is right and all of us, what we're rooting for is right. Trump is guilty of crimes. And I'm saying in Trump's criminal defense, this would play, I think, maybe the opposite of good evidence. This would be, well, look, this means these domestic terrorists were doing it on their own. They had a plan. Trump wasn't responsible. It wasn't because of his speech. They did it before his speech

0:23:15 Andrew: OK, right.

0:23:42 Andrew: So, so let me say the two specific things that I think respond to that. The first is you do have to test potential exculpatory evidence and stories in light of the overall story you were trying to tell. And what I'm saying is that right now, the story that Trump is trying to tell is not, oh, hey, I don't know who the hell the Proud Boys are, and like, maybe they instigated this thing, but I had nothing to do with it. Right. That's not the story he's telling. The story he's telling is, no, no, no, no, this was just a peaceful demonstration that got out Of hand, right.

0:24:12 Thomas: Yeah, but okay. I'm so Sorry to be a pain in the butt. That Doesn't Matter, because legally, we, people are already arrested For this insurrection, people are already charged in In the context in which this matters. It's one thing if you're talking politically. I'm not talking politically, I'm trying to emphasize, in Trump's criminal defense, Nowhere in there will there be, I mean, I, it would be insane if the defense was there wasn't actually an insurrection. People are already in jail for the insurrection, so that's not a concern here.

0:24:14 Andrew: So No. No, no, I'd Love, but Right.

0:24:38 Andrew: But the question is, people are in jail for obstructing an official proceeding, right, people are not in jail yet. Enrique Tarrio is charged with seditious conspiracy, right. So I'm saying that that your position is already a move to seditious conspiracy by the Oath Keepers and the Proud Boys, which is a step in the right direction. Now, the second part, I still haven't got to. The second. No, no, no. I love it.

0:25:03 Thomas: Yes, sorry, but thanks for being a good sport. Now keep going.

0:25:06 Andrew: But but no, No, No.

0:25:07 Thomas: I want to hear your response.

0:25:07 Andrew: This is a if something doesn't pass the straight face test with Thomas Smith, it's not going to pass the street face test. With uncle Frank, so I you hammer me until what I say sounds good. The right second point is that argument only works if there's no communications and no back and forth, no channels between the proud boys, Oath Keepers, and the highest uh Trump officials, and I feel reasonably confident uh that they've got good evidence right now uh that that shows those channels.

0:25:23 Thomas: Right, of course. Yeah, totally.

0:25:34 Thomas: But not between, not with Trump himself. There's no, they would have led off with that.

0:25:36 Andrew: Of course, Trump, Trump wouldn't talk to Stuart Rhodes on a dare. I mean, you know, no, you just imagine like, yeah, right.

0:25:38 Thomas: Yeah, yeah. We got Trump's DMs.

0:25:46 Andrew: No. But was it run through Roger Stone? It feels like it was run through. Roger Stone, Roger Stone stayed at a different hotel and brought Proud Boys as personal security on January 3rd. We've heard, right. We don't know yet. And these are the kinds of things that we will be looking to the one six committee to introduce to that evidence, because, yeah, as skeptical as you are, every prosecutor at the DOJ is going through the same thing, is going Hey, man, want I to indict Donald Trump. This would be a very good move for me as a prosecutor. This is the kind of thing that you build a resume on. Right. Convicted former president of treason. That's a pretty good resume.

But losing would be really, really bad. And so you've got to get over their questions of, all right, but yeah, I'm going to do that. And then they're just going to be like, it was off the MC's Proud Boys. Who can control what they do? Well, that's why I think an hour was spent on Thursday night showing over and over again the connections between the Proud boys all the way Donald Trump.

0:25:59 Thomas: Yeah,

0:26:49 Andrew: To the... don't, I think it was enough. I think, right, you can say, I still want to see how this was operationalized on one six. If they don't have better information than that, if they don't have, "Here's Roger Stone saying come out at this particular time," then this, will not lead to a criminal indictment. That's right, absolutely an area that that they have to shore up in terms of it. Sure, up is the wrong word. This was the, this was the opening statement.

That's absolutely right, the area in which their evidence has to match what they promised it would say. But right, they promised, they, they showed, right, us, they juxtaposed Donald Trump at the debate saying, you know, "Proud boys, stand back and stand by," they said, "We are going to prove to you," uh, that they were Trump's conduit to violence on one six, that's a piece of evidence we're going to be looking to see.

Now, let's take a little bit of a step of kind, back the, to the main, to track, um, this which second hearing is going to to feature testimony from Jason Miller, it is going to feature other key presidential advisors.

This was, and I still think it's the takeaway of of the night, if you're a lawyer watching these one six hearings, the, there's no there there, right, that the data folks, the attorney general, Jason Miller and an unnamed staffer, right, went to the president and said, "You've lost, it's going to take a while because of the blue shifting, but the, but results are going to come in and you will have lost it." And so then everything that happens after that point becomes pretext, right? And so we focused in last week on the Cleta Mitchell writing to John Eastman two days after the election and saying, "Hey, know, state legislators are plenary."

0:28:32 Andrew: They can, you know, appoint their own electors and we can get like and how terrifying that was, because this this was at a time this was 36 hours before the presidential election was formally called. Right. The election desks did not say Trump lost. But here we have Cleta Mitchell, inner circle insurrectionist saying, yeah, OK, like we know we've lost. But, John, like, you Know, we can come up with something here. Right? This is how you begin to build a case of criminal intent. It's something we've said on the show over and over again. That is a cumulative discussion, right? It is, how do you prove that somebody said a thing that they don't believe to be the case? Well, you show lots and lots of other statements that are inconsistent with that. Like any good mob boss, Donald Trump does not leave a a long paper trail, right?

0:29:21 Andrew: He does not use emails. He does not write documents, right. He signs things with his little crayon of his, and then talks to people. Um, and he's done that his entire life. Uh, and we know he's, he's, he, that his entire lifetime, how effective it's been, uh, at keeping him out of jail for, you Lord knows the crimes he's committed over his entire life, right.

This is, is always going to be the uphill battle, so the question is, how many people do they have, how many witnesses, how damning are the witnesses, um, I thought, five minutes out of the box, finding out, "Hey, we have deposition testimony from Bill Barr," you're gonna hear that, we have, we have deposition ceremony from Ivanka, from Jared Kushner, like, and again, and maybe some of this is the, is lawyer perspective, but like, to me, that Jared Kushner, like, that was the most, the Ivanka as well, like, that's the most effective, because you could see how little Jared Kushnar wanted to be there, right? Like, you could see his body language of like, "I hate you guys," uh, and that can be incredibly effective from a witness perspective of, and Jared Kushner was like, "I was really concerned on getting pardons for my criminal crony friends, so I wasn't really looking into this."

0:29:59 Thomas: Yeah. And Jared, oh Yeah, and then, well, then we asked him, like, hey, what did you think when all these people quit in protest of what was obviously a coup going on? Oh, we just thought they were kind of complainers, you know, they're just the office complainers, they're just too lazy This episode is brought to you by the Jordan Harbinger Show. It's Jordan's show, which Apple named one of its best in 2018, is aimed at making you a better informed, more critical thinker so you can get a sense of how the world actually works and come to your own conclusions about what's happening, even inside your own brain. Each episode is a conversation with a different, fascinating guest. And when I say there's something for everyone here, that's absolutely true.

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0:30:47 Andrew: Well,

0:31:44 Thomas: And right at the top, there's a bunch of shows on Putin and disinformation, like episode three with Bill Browder or episode 360 with Garry Kasparov, from, but those are a couple I might start with. With. Make sure to search for the Jordan Harbinger Show. That's Jordan, H-A-R, binge, and an R, in Apple Podcasts, Spotify, or wherever you're listening now.

0:32:09 Andrew: Live tweeted this out and it's like, you opening arguments, listeners, I hope you felt privileged rather than disappointed that we had sort of laid out a lot of these issues. But like, remember, you were not the audience for this first hearing, the audience was somebody that voted for Joe Biden in 2020 and has kind of been disconnected ever since, that right. Moment we talked about this back in March. We talked about the deposition testimony that was released in connection with the effort to replace the attorney general with Jeff Clark. That is for OA listeners. That's the environmental lawyer.

0:32:23 Thomas: Yeah I

0:32:48 Andrew: Remember? Yeah. One for whom Richard Donahue was like, yeah, look, man, if we have, you know, a cleanup problem, like we'll call you. But otherwise, get the. Yeah.

0:32:46 Thomas: Don't even remember that yeah oh right yeah Yeah.

0:32:56 Andrew: Right. And And introduce to that, the point there was to say, "Just say the election was corrupt and leave the rest to me and the Republican congressman." Um, that's going to be in the third hearing, that able to tell that story, we've seen only that part of it, the right extreme reaction from inside the DOJ of Richard Donahue and others saying, um, "If you do this, if you put that asshole right like any points across the room and I'm in charge to say this, you will have a hundred people resign tomorrow in en masse, the entire department will give up on you. This will be the end of everything right at the very end." That argument was sufficient enough to persuade Donald Trump not to do it.

0:32:58 Thomas: I

0:33:45 Andrew: Right. So, for whatever you might be thinking, like, oh, well, you know, that's a sternly worded crunch wrap. It was a crunch wrap that landed. He Right. Didn't replace.

0:33:52 Thomas: Think every crunch wrap lands, but that's just me.

0:33:55 Andrew: He did not replace the attorney general. And hearing that story on why. And Right. Think about that in the context, you know, we've talked about like Saturday the Night Massacre and and there have been lines. I know this seems weird and it seems weird coming from the show. But there have had lines that Donald Trump was not willing to cross. Donald Right, Trump. Trump was not willing to fire Rod Rosenstein. He was not unwilling to fire Robert Mueller.

0:33:56 Thomas: Yeah.

0:34:20 Thomas: It's more someone was able to talk him out of it.

0:34:22 Andrew: Wouldn't. Yeah, right.

0:34:24 Thomas: Barely.

0:34:24 Andrew: Not willing to make an executive decision that resulted in that. Yes. Right. Like, did he want to do that? Yeah. He mused openly on Twitter. Like, yeah.

0:34:32 Thomas: Yeah, well, and he asked about it and people were like, you can't do this, especially with Rosenstein.

0:34:36 Andrew: Right. Yep. And so yep, airing that process, right, airing the, yeah, no, this was something where we had to talk him out of taking somebody with zero qualification, an environmental lawyer with zero qualifications, installing him as its head of the attorney general, sending out a fraudulent letter. This was also news, right, even to Opening Arguments listeners, that there was a draft memorandum set to go out to six states to be signed by Attorney General Jeff Clark that says we have significant concerns that could impact the outcome of the election. Um, that would have been a huge, had that happened, right, that would, have made an enormity of difference, uh, in terms of the ratcheting up the levels to convince state legislatures to designate an alternate slate of electors, um, and those, those walls inside the DOJ held. Again, you know, nope, nope.

0:35:37 Thomas: So what so what does that help? I mean, does that and again, I mean I'm not trying to undermine what you're saying. So So that argument of there were lines he wasn't willing to cross, does that make it a stronger criminal case or have we, right?

0:35:50 Andrew: I think the way you reframed it actually is what makes it the stronger criminal case, right? It's not that Trump wasn't willing to cross it. It's that he had to be restrained by the entire force of the Department of Justice from doing it and almost did it anyway. Anyway,

0:36:02 Thomas: Yeah. This is where I have to ask, and confident that you have told me this before, but what I we do normally on this show, when it comes to any crime, any law, any whatever whatever we're talking about, is you tell, all right, here's the law, section, something, blah, blah, U.S. Code one, something, something. And then you say, here are the elements. Here's a crime. Here are element. Here of the crime. And then usually like, here're some other cases in which this was proven. I get that this time that's a little tough, but I guess I don't remember what that is. So when Liz Cheney, who we've established as a lawyer and a Republican, and you may recognize her name as, you know, daughter of the worst Republican before, yeah.

0:36:45 Andrew: Daughter of a war criminal. Yes, I

0:36:48 Thomas: Exactly. Uh, not exactly. AOC is confident that he committed crime. Can you remind us all, what is the crime? What are the elements? Because right now it's it comes across to as well, these are all really crappy things that he should be impeached for and that he shouldn't be allowed to hold office for, where, what's the crime? What's the actual statute? What's the, what are the elements? Yeah.

0:37:09 Andrew: Love it. There are. And I think this is a great way to kind of wrap up the storytelling and what we need to do. And I will say the fact that these particular statutory citations did not come out on day one, in my view, is a strength. Right. Right. Like because, yeah, you need to tell the story first and then match it up with the elements of the crime later. There are two crimes, in my view, that we are looking towards charging Donald Trump. And the first is 18 U.S.C. 371. These, by the way, these are the charges that are brought against everybody else in connection with one sex. Right. So 18 U.S.C. 371 is conspiracy to commit offense or to defraud the United States. And it reads simply as this, if two or more persons conspire either to commit any offense against the United States or to defraud the United States or any agency thereof in any manner for any purpose, and one or more person do any act to affect the object of the conspiracy,

0:37:26 Thomas: I Agree. Interesting.

0:38:13 Andrew: Each shall be be fined under this title or imprisoned not more than five years or both. And what does it mean to defraud the United States? To prevent it from doing a thing with which it was legally entitled to do.

0:38:25 Thomas: So that, this sounds kind of like catch-all-y. It sounds like maybe there was some a-hole that did something really bad, but they didn't really have a specific statute to charge him under, maybe. And they're like, all right, we need a law that's like, if you're being an a-holes, like if you just, if you're just screwing over the government in some way, is that it? Or like, what are the kinds of crimes that people have been charged for this, besides, obviously, the other insurrectionists.

0:38:46 Andrew: So So, Put a pin in that, right, that you are, you are a hundred percent correct that that is the catch-all provision, and that has covered a wide variety, right? Like if you defraud the government out of a government contract, right? Like if, if you had the Superman three, like stealing all the half cents, right, like all of that. Absolutely. That's why I started with that. Now, I will point out, in my view, any criminal conviction of Donald Trump is a victory, And a five-year penalty, again, you know, I will

0:38:48 Thomas: Yeah.

0:39:15 Thomas: I'll Take it. I'll take one. Year, I will take anything.

0:39:22 Andrew: Take mugshot is really what I will take for Donald Trump. But next step up, where the committee is aiming and where I think this kind of rises or falls with the judgment of history is 18 U.S.C. Section 2384. That is seditious conspiracy, conspiracy, and you'll notice it reads the same way, only with more detail, so it answers that question, the that you've brought up. If two or more persons, any state or territory, or in any place subject to the jurisdiction of the United States, that's important, conspire to overthrow, put down, or destroy by force the government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or, by force, to seize, take, or possess any property of the United States contrary to the authority thereof, shall each be fined under this title or imprisoned not more than 20 years or both.

0:39:22 Thomas: Yeah. Oh.

0:40:22 Andrew: I will tell you the statute is incredibly rarely applied. We can can go through, uh, if we move towards charges, I will absolutely do a history of every person ever charged with seditious conspiracy in the history of the United States. That's a thing we can do on the show, that tells you how rare it is. But, but, I want to tell you, there is a reason, in my view, that the DOJ has brought these charges against Enrique Tarrio and four others of the the Proud Boys, against Stuart Rhodes and the top cadre of the Oath Keepers, because they want to get practice prosecuting these kinds of crimes that, have you been prosecuted, once a decade for the past 100 years.

0:41:02 Thomas: I thought your Gonna say that, like, if they convict them, does it make the case easier? You know, if it's like, if you're trying to say two people are in a conspiracy to rob a bank, and then you, the, you First you do some of them, and then they're like, well, they weren't found guilty of bank robbery, it's gonna be really hard for the second one to be like, but he was also in a consistency to not rob them, you know? Like, so is, does that help to have That first Condition, okay.

0:41:10 Andrew: Yes, it also Does. Now, the standards here, you are thinking back to your Thomas takes the bar exam and offensive non-mutual collateral estoppel. The standards are a little higher when you're talking about a criminal offense, because you cannot presume one of the elements of the offense against a criminal defendant. Right, like they have the right, then think about, you would want that right.

0:41:29 Thomas: Uh. Yeah. Right.

0:41:42 Andrew: Like the right to maintain their innocence and demand a trial by jury on that point. Um, but, yes, right, absolutely. Uh, what will either be a witness or will be an unavailable witness, uh, at any trial of Donald Trump, will be Tario and Rhodes and the Proud Boy and the upper leadership of the Proud Boys and the Oath Keepers, uh, because that establishes, right, the by force component of this, right. And it also shows you could you convict somebody of a conspiracy without thinking. So in other words, could convict Rhodes and Tarrio of that conspiracy without connecting them up with Donald Trump. They, could have had, this is, this goes back to the very first question you asked me. Right, they could have just had the conspiracy amongst themselves. They could have believed that they were authorized by Trump Or believe not, they could have believed erroneously.

0:42:25 Thomas: Right.

0:42:34 Thomas: Yeah, like we don't convict Jodie Foster of conspiring to kill Reagan, I guess it was.

0:42:38 Andrew: Right, exactly right. Exactly right. So it remains an open question. But but yes, right, is, we've heard alternative reports about Tarrio and Rhodes cooperating. Um, all of those reports, you know, I, I, we heard lots of reports about lots of people cooperating during the Muller investigation. Some of it turned out to be true, some of them turned out to be Michael Flynn. So, you, I reserve judgment on that, but to me, uh, I love kind of coming back to that, this 18 USC 2384, to me, is, you all the marbles. And that is, can we show that Donald Trump, with one or more other persons, conspired by force to prevent, hinder, or delay the execution of any law of the United States? And in particular here, the Electoral Count Act, 3 U.S.C. 15, that would have opened the electoral votes and declared that Joe Biden was the rightful winner of the 2020 election. Now, think we have at least the framework of how you put together that case. How right? Do you show that you are preventing, hindering, or delaying the execution of any law of the United States?

0:42:39 Thomas: Yeah. Yeah,

0:43:52 Andrew: You have to show, you know, what this law is going to do. You know that your arguments against it completely lack merit and you don't care. And for that reason, you have decided, and we've talked about this last Tuesday, to bypass going to the courts. You went to the courts on all the election fraud stuff and you went one for 63. We know what your threshold for going to court is.

0:44:17 Andrew: That is, can we find somebody named Terpsichore to write an affidavit that says, there was no bar to them filing lawsuits. They deliberately chose not to file lawsuits because they did not want the ruling they knew a court would give, which is this view of the 12th Amendment and the Electoral Count Act is idiotic. It would, quote, lose nine-oh at the Supreme Court, end of quote. Right. Like over and over again, if you can show. Hey, this is, I think, how I'm thinking about, you if I were Liz Cheney and look, I shouldn't be. Let Liz Cheney continue to do this.

She's been amazing at this so far. Right. I think if I were Liz Chaney, I I think, think the angle is the president has every right to legitimately challenge to the fullest extent of the law by filing valid lawsuits, by seeking recounts, by arguing for fraud, by putting out evidence. And they did all of that. Nothing we are talking about from the committee's perspective is about that level of activity, some of which, by the way, was so bad that, you know, she got out her quip, like, you know, Rudy Giuliani not only lost the case, but lost his license to practice law.

0:44:16 Thomas: Yeah, yeah.

0:45:25 Thomas: Wait,

0:45:25 Andrew: You know, um, great quip. So put, aside legal challenges, this is the stuff they knew, that we saw, the stuff. They were willing to go to court over, and they went one in 63. This is the stuff they weren't willing to go to Court over. They knew they were going to lose.

0:45:36 Thomas: Yeah yeah they're like dang this is no Terpsichore, we better not try it. This

0:45:44 Andrew: Right. Yeah, we we can't find somebody to say that.

0:45:47 Thomas: Is no ironclad terpsichore uh testimony.

0:45:50 Andrew: Yeah, think about what we saw and then realize these are the arguments they thought were worse than that, so um, that's why I put all of that together, I, I suspect if you're a show listener, you probably still have that Lucy with the football feeling, I, I get it, uh, but hopefully, you know, we've walked you through sort of what the commission needs to to do, we got a month of this, so you know, it's, it's gonna be a slow burn, we learned a lot, um, one last thing I'm gonna say, like, we've a couple of, I, I think probably most of these are Russian bots, but like a couple people who are like, well, you know, Liz Cheney is still a terrible person, yes, we know, Liz Cheney, like,

0:45:56 Thomas: All yeah, yeah.

0:46:20 Thomas: Yeah, fine, whatever, yeah,

0:46:27 Andrew: Her dad's a war criminal, right, like, it's, she's awful, she's never been on the right side of anything. She's on the Right Side of This. Great. Right. Like, you know, if Mitch McConnell.

0:46:35 Thomas: And and she's helping in this moment it is important to have her right now, yeah, it's just, I know they're, you're right, I don't know, know if it's Russian bots, are just truly, uh, useful idiots on the far Twitter left who'd love to do, oh, now liberals are worshiping this, no, no, what please, come, she is doing one good thing, just let her do the good thing, what, what, what are we supposed to say, no, sorry, don't want your help with trying to bring, like, the worst criminal to justice ever, sorry, we don't want your help to make this bipartisan and and maybe have a slightly better chance of appealing, get out of here with this, Liz Cheney, what, a what a dumb thing to

0:46:37 Andrew: Yes. Yeah. If Mitch McConnell came out tomorrow. Yeah. I'd be like, OK, Mitch McConnell wrong on everything in his entire life. But, I know.

0:47:17 Thomas: Think, I don't understand.

0:47:19 Andrew: So she's been great. This was a textbook opening argument. I would, if I were teaching legal advocacy, I would use, you her 20 minute statement as, that, that's how you begin, by prosecuting a case, right, you say, here's what we're to prove to, and, you, and again, at the end of opening statements, you, the jury doesn't go out and deliberate, go, okay, well, that was a great opening statement, let's be like, guilty, right, like, no, that it tells you what to look for, and what she was telling the American people is here's What to Look For, and tomorrow, What to Look For is, what is the evidence. If you don't come away from tomorrow's hearing believing that Donald Trump absolutely knew that all of this was bullshit, right, capable of proving it in open court, then I think it's time to despair, right.

0:47:40 Thomas: Yeah, give them the chair, yeah, then it's a failure. Okay.

0:48:05 Andrew: Yeah, absolutely. That's my, yeah.

0:48:06 Thomas: Well, that gives us a good thing to watch for, I mean, is that for sure what the second hearing is about?

0:48:11 Andrew: The opening statement said that that's what you're going to hear in the second hearing. And then the third hearing is when you're going to hear about all the Jeff Clark stuff and the corrupt machinations to try and, sort of you even more. The fourth hearing is When You're Going to Hear About the Efforts to Pressure Mike Pence. And that's when Liz Cheney is going to call out our friend John Eastman on national television. And, oh, I'm going to be watching that with frosty a beverage in hand, let me tell you. And then a

0:48:14 Thomas: All right, well, there's our standard.

0:48:35 Thomas: That's what they're calling it these days.

0:48:38 Andrew: So, uh, there we go. Uh, but yeah, so tomorrow's hearing, why Trump knew this was bullshit.

0:48:43 Thomas: All right. That really helps to give the context for something to watch for. I can't wait. And I'm sure we'll be talking about this on our next episode.

0:48:52 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,

0:49:02 Thomas: And now it's time to thank our Hall of Famers, our all-time greats on patreon.com/law. You folks are the best. We love you so much. Here's the thing, once again, I'm going to read all these because Andrew has COVID and is, you might think, "But Thomas, Andrew has sounded fine this entire episode. Barely sounds like he's sick." Well, that's thanks to the magic of editing, my friend, because you don't hear the five minute coughing session every 10 minutes that's happening because of the magic.

So, I'm, so I'm gonna spare Andrew a little bit of reading here and thank our second and quintile. Oh, thank you so much. Too, for a fun fantasy story read The King's Own by W. Marshall, now on Amazon. That thing in the attic, this is not our all-time great Conrad Michaels, no, this is just a tribute. Oh, so good, love that song. Liberals own guns to support root cause mitigation, not ineffective gun control. Boy, not a, couldn't be a worse time for that. Patron name, sorry. Yeah, I support just all gun control, I don't give a crap about your guns. Oh, a Chicago live show, Joe, you bring the law talking, guys, I'll bring the worst parking meter deal in

0:50:03 Andrew: Wow.

0:50:03 Thomas: History. What? Oh, man, we do need to get over there. The Fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star Canteen. Zach Bloom, tell Morgan Gattam's son, Ray, Pizza School the Corgi says you need more corgis in your life. Follow at Pizza School, the corgi on Instagram. I'll never get over that name. That is the funniest name for anything ever. Legal Eagle is so handsome. Is there an update on dissolving the NRA? No kidding. Kidding. I was very surprised that that NRA convention, it was still Wayne LaPierre. How has he not run out on a rail? We'll get, at some point, we'll get an update, I'm sure. The Smiths. Crazy animal lady has given up on changing her Patreon name. Just take my money. Hey, works for us. Praise be unto Hamilton. Budget botanist is pausing Fiverr because of PhD workload.

0:50:51 Thomas: Last week, reach out on Twitter for plant help and I'll try to get to you. We love you, Budget Botanist. Good luck. Please offer any suggestions for a podcast that would read my Patreon name weekly asking for a friend. Conrad Michaels' loved Sparkle Donkey tequila isn't hearsay because it's an excited utterance. How could that not be exciting? Matt Morrison, listener Thomas F., one smart cookie scent cutters. At what point do we just throw our hands in the air and leave? Profusely apologizing for accidentally triggering Thomas while drinking at Emperor's Brewery. Spread love, not gate. Boy, I don't know what that's about, but okay. I'm sure it's something that I've forgotten, so don't worry about it. GDT says, everyone knows that the police can't arrest you without, page 202, your consent.

0:51:37 Thomas: Maritime laws, freedom menu. Benghazi and the buttery males. Les deux, les biens fabuleuses. Not a Last Week Tonight producer, Jennifer Tchaikovsky. Supreme Court justices should have 18 year term limits, and so should Conrad Michaels. Unicycles, Sabrina Sturgeon is unicycling around the world, check out her Patreon at patreon.com/unicycletheworld Here's for Edgy Veggie, Torsten, Two Waffles, Peel, Evie Huntington, Harvard alum, no hood. Fred from Colorado, keep Colorado an abortion, abortion access haven with LGBTQ legal protection, support Colorado State House Dems. Absolutely. Suck my D from the back, Clarence. Fair enough. John Brown did nothing wrong. Thank you so much, Hall of Famers, we love you, you make the show happen. I hope you enjoy all those perks and those benefits and join their ranks at patreon.com/law.

0:52:28 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:52:33 Thomas: And now it's time for T3BE answer time. I don't feel great about this unless I happen to get the trick question right. I dunno. What's going on in this question, Andrew?

0:52:44 Andrew: Right, Thomas, this was an incredibly intricate SUV pro question that wanted to test a whole bunch of different things. Let's, um, break down the fact pattern. So, State A resident man and a State B resident woman get in a car accident in State B. Mann files a lawsuit in federal court in State A, alleging that the woman was negligent. Mann decided to serve the woman at her parents' house, which is just a few miles from the woman's home, but what was across the border in State A. Sidebar, the reason you do that is because you're now serving her in state, right? Right. And you have a shorter answer period if you serve someone in the state as opposed to serving them out of state. He, OK, knew that, you know, she goes to see her parents all the time, but she's not there.

0:53:32 Andrew: Her parents accept service of process, notify her. This is the single most important fact that is buried in this one line where it says the woman timely filed an answer denying the allegations against her. And then a couple weeks later, she files a motion to dismiss the case. Then it says, as these lengthy questions often do, "Assume that the state's rules of civil procedure are identical to the Federal Rules of Civil Procedure." That's how you know it's the multi-state, right? So, if the motion to dismiss is granted, what is the most likely reason? Why? You said, seem to recall that diversity jurisdiction is amount in controversy greater than $75,000. B just says the man was asking for $75,000 in damages.

0:54:20 Andrew: That's not greater than $75000. So therefore, I'm going with that. And if it's some other answer, I wasn't going to get any weight. Well, Thomas, that is in fact the correct answer. This is a great example of the bar exam trying to F with you and you rising above it. And

0:54:29 Thomas: Oh, yes. Oh, man. Not today, Bar Exam, for once. Usually you win the first several hundred of these, but I won this one.

0:54:46 Andrew: And here's why, because this question is masquerading as a question about federal jurisdiction. Else A, C, and D right has to do with aspects of of jurisdiction in federal court that, that do not challenge the court's subject matter jurisdiction, right? So subject matter jurisdiction is a thing you can raise at any time, right? You can say, hey, um, you, court do not have jurisdiction over this case, you've got to give up. And remember, because federal courts are courts of limited jurisdiction, if you're right, they do. And so it doesn't matter if you've never raised it before or anything like that. So me contrast with the answer that I bet we get everybody.

0:55:34 Andrew: I bet it goes 80 to 20 in favor of answer A, because the service was clearly improper here. It is not proper to give something to someone's mom and dad and have them be like, oh yeah, we'll make sure Thomas gets that, right? Like I I thought you might even do a dear old dad there, right? Like if, if I sued, and you know, it was back when your dad was alive, like, and I gave your dad the lawsuit against you, and he was like, I promise I'll give it to Thomas, and then I went into court, right? Like, think of how outraged you would be by that. But right, the issue is, although you would have a very, very good argument that that was not proper service of process, you are required to raise the defense of insufficient efficient service of process in your first pleading.

0:55:49 Thomas: Yeah, yeah. Yeah. Right. Right, Yeah. I sort of remember that because it's sort of like, yeah, you answered it though. You timely answered it and you denied the allegations. That means honestly the process, who cares?

0:56:21 Andrew: Yep. It's waived. Right. That's exactly right. Because again, you want to balance between actually incentivizing, making sure that people are fairly made aware of the lawsuit. But they're answering it anyway, if they've got got the copy. What are we doing here,

0:56:26 Thomas: Yeah.

0:56:43 Thomas: And I remembered this last time that we talked about this, the remedy would be like, okay, here's your service. You're in court now with a, here, I'll just serve you right here. Okay. Now we're back. And that would be kind of redundant and pointless wait

0:56:56 Andrew: Exactly right. Exactly right, so similarly, C and D, although not quite as obvious, are challenges to personal jurisdiction over you that the court would have, but they're not challenges to the court's inherent jurisdiction to hear the dispute, and in the same way, they must be raised in your initial pleadings, right, Right. So it's possible the woman didn't have sufficient minimum contacts with state. And we've talked about that all the time, like in connection with, you know, the emerging rules on interstate commerce. Do you and I have personal connections now, you Know, to being sued in Idaho?

0:57:32 Thomas: What about diversity though? Wouldn't you need her to not have some presence in state A? Uh-huh.

0:57:37 Andrew: So here's the thing. She's a state B resident and she's in a car accident in state B.

0:57:44 Andrew: So the question is, does she ever go into state A for purposes of being sued in state A?

0:57:41 Thomas: And Did, but her house was there, we know she goes there, her parents house, yeah

0:57:52 Andrew: Her parents house is in state. So she probably does pass the minimum contacts. Right. Like that.

0:57:53 Thomas: Yeah That That The the parents house thing was why, yeah, that's why I kind of didn't go see, but I also was a little confused about. So there's difference between the diversity of she is in state B and he's in state A versus, if he's suing in federal court, it's still met. So he would have to sue in federal court in state B is the problem.

0:58:15 Andrew: That's right. This is a good opportunity to kind of break down. There are two sets of jurisdictional questions that you face in federal court. The first is subject matter jurisdiction. Right. Can the court handle this dispute in the first place? Right. And the second is personal jurisdiction. Assuming that the court can handle it, do they, does that court have authority over all the people that you've sued? And the way in which a federal court determines if it has a jurisdiction over somebody that's not within its geographic jurisdiction is called a long-arm statute, right? And it literally is meant at the long arm of the law, right. Right. And the test that there a lot are of things going on. But but essentially the test is, did you intentionally avail yourself of and subject yourself to the laws of the state in which the court encompasses that jurisdiction, such as to put yourself in the court on notice of like, OK, yeah, hey, I can be hailed into court here.

0:59:12 Thomas: Okay. Here's why I'm so confused about this. Cause we've talked all the time, the federal court can just apply the laws of state So why would that be functionally different? It's just the Homer thing of like, you want, even though it's federal, I don't know, for some reason in my mind, federal means like, yeah, it doesn't really matter what state it's in. But just because that federal court sits in state B, if she had never even touched state B or sorry, state A, if She had never even done anything in state A and had answered this first before the other stuff, then maybe that would have been successful because he would have to move it to state B federal court.

0:59:16 Andrew: Right. Right.

0:59:54 Andrew: That's exactly right. Imagine now. So now let's replace states A and B. And here clearly the fact pattern is like, you California, Nevada. Right. Like you've you've just crossed over the board. Rightly. But let's workplace this fact pattern with

0:59:56 Thomas: Okay. Yeah. Oh, I see. Just making physically making someone go to court in an, in the, I See. So it's like, OK, yeah, you know, it's funny. These things get so complicated that sometimes I lose sight of the obvious part of it.

1:00:11 Andrew: Exactly right here. Yeah. If if state A is Rhode Island and state B is Florida and you delete the bit about her having the.

1:00:24 Thomas: Also, I'm such a millennial that like I'm like, yeah. Just online court. It doesn't matter. You just New York and I'm in California. We do online court who cares.

1:00:37 Andrew: So so that's the personal jurisdiction question, the court can hear the dispute. But now the question is, is it fair to bring you up from Florida to Rhode Island? Well, you know, again, if Florida borders Rhode Island and you go to Rhode island all the time and your parents have a house in Rhode Island, probably. If Right. It does, as is the case, if if it's not and you've never set foot in Rhode Island, then maybe the courts of the state of Rhode Island should not bring you all the way up to Rhode Island. That's it.

1:00:38 Thomas: Right.

1:01:05 Thomas: That's so obvious. I you know what boomers in the audience, feel free to OK millennial me on this one, Because I think this was clearly like, I just think of everything as online now. Like, I don't even, especially after COVID, I'm like, yeah, you wouldn't physically go anywhere anyway. You get in your car and you dial into the court and you do a fake backdrop so that the judge doesn't know you're driving. That's how court is done.

1:01:10 Andrew: So I am not a cat.

1:01:27 Thomas: Okay. So that, I I'm so glad you explained that. So that's C. Now, what about D?

1:01:33 Andrew: D is a subspecific application of of C. It is also personal jurisdiction. And generally speaking, the converse of this is true. Right. When you were figuring out if somebody has minimum contacts with a jurisdiction, having a car accident in that jurisdiction is per se sufficient minimum contacts. So Right. In other words, let's again kind of modify this all the time. I live in Maryland. I never ever. Right, for the love of God, do not stop in Delaware. Right? This is this is not true. I have friends from Delaware. Delaware is a perfectly fine state.

1:02:09 Andrew: But, yeah, let's imagine just for this. I say I have never wanted to set foot in the state of Delaware. I don't subject myself to its laws. I want to do business there. I. But I do drive to to New York. And to drive to New Jersey, I've got to drive through Delaware to get there along I-95. And then if I have a car accident in Delaware, I could make all of those same minimum contacts. And the court's going to be like, doesn't matter, man. You were in Delaware at the time you had the accident. That is sufficiently manifesting

1:01:40 Thomas: Right, right, right. Yeah. She hates Joe Biden. Yeah. Yeah.

1:02:38 Thomas: Hmm.

1:02:39 Andrew: A desire to avail yourself of the laws of the state of Delaware. You don't like it. Drive the long way around Delaware. And

1:02:46 Thomas: Right. So to be a little hard on myself, I think D was a bad second choice because, and correct me if I'm wrong, just logically speaking, D sounds like one of those where if the accident were in state A, that would be a surefire way for this to be fine. But it not being in state a is not necessarily the best reason that it would be fine, you know, like,

1:03:08 Andrew: That is the exact perfect way to put it. Yes.

1:03:10 Thomas: Yeah. So it's like the fact that it did not occur in there would not disqualify you. So D was not the second best answer if we're keeping track. But since I nailed it B, in sometimes the second chance bar exam, it doesn't, you know that's another way to get it is to just get it in one. And that doesn't matter what your second choice was.

1:03:28 Andrew: I'm just gonna, I'm just gonna hit a hole in one every time, that's the, yeah, you.

1:03:31 Thomas: Yeah, that's easy. Why don't I do that? All right. Well, I frigging nailed it. This is so funny. It actually was a a trick question. And I feel like there aren't a lot of these really letter of the law, 75,001 type questions, but I'm glad that when there was, I happened to get it. That's nice.

1:03:47 Andrew: I love that you picked up on that because absolutely the bar does just enough of those to to mess with you, and uh, and and the fact that, you the fact that you're not taking this in a six hour period, but instead over a six year period might help. But uh, you know, we gotta, we gotta give you a thumb on your side of the scale too, so great job. Yeah.

1:03:54 Thomas: Yeah. Right. Awesome. All right. Well, let's find out who this week's big winner is. I am curious to see what people picked. Right, my turn to pick the winner. Once again, I don't know how long Andrew's going to milk this COVID stuff. Just kidding. It's fine. Andrew predicted that everyone would get this wrong, and Andrew was wrong. And I think the reason for that is, there's a trick question. Once you hear me say, oh, maybe it's greater than 75K.

I feel like everybody is primed to see the trick or Google it. So one way or the other, basically everybody got it. Here's one. Cream Cheese or Creme Chez, I'm not sure which because it's K-R-E-M-C-H-EZ at N-E M-M A-S I-55 says, Thomas and I had the same thought process, which is concerning to me as a July bar taker. But Hey look, I'm doing okay. All right. This is why I picked this one. I think that's funny. I'm going fine. Just do, you know, like 10% better than me and you're guaranteed to pass, I think.

But I also think the amount in controversy must be over 75 K. So choice B is my guess. Well, you and virtually everybody else got it. Congratulations to all the winners. Make sure to follow at Congratulations. Unlimited fame and fortune absolutely guaranteed. And That's Our Show. Thanks so much for watching. I cannot these hearings. Hopefully, Hopefully, if you're hearing this, I got this out way early for everybody in time to prep everybody for these hearings. Otherwise, it's less fun. So let's look forward to another opening arguments at open args on Twitter. Live tweeting of some good hearings. See you then.

1:05:40 Andrew: Absolutely. All...

1:05:41 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.

1:06:15 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.