OA605: GEICO to Pay $5.2m for Car Sex?! and MORE Jan 6 Bombshells!

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 605. I'm Thomas. That's Andrew Torres. How you doing?

0:01:24 Andrew: I'm going to say fantastic. It's been a January 6th committee hearing kind of morning. And so that's put me in a good mood, even though, you know, still doing the long climb back up from COVID. Still, you know, kind of stuck in my house and all that. But I am excited. I am cautiously optimistic about the future of the country. How are you doing?

0:01:39 Thomas: Oh, yeah. Um, I have been put into a mental coma by the sloth from Zootopia. And I'm so mad about it.

0:01:55 Andrew: Let's, let's talk about that.

0:01:56 Thomas: I can't even Yeah, we're. We're on the third of these hearings. And the second one was on Monday. We haven't gotten to talk about that one. So we We should also talk about that, although I believe you did cover it on the wonderful podcast cleanup on L45. And then the third one is today. We've gotten through, what, 75% of it until we had to record because we put it out the same day.

0:01:56 Andrew: Yeah. Yeah. Of course.

0:02:20 Thomas: So we've got, yeah, we only got to watch the magic sleep spell that someone was trying to cast on us as a nation. The weirdest thing I've ever seen in my life, Andrew. They have a witness here. Sorry, I just can't handle this. I'm crawling out of my skin, Andrew, well,

0:02:21 Andrew: All the good stuff is going on right now. I had to So so so, Let's, let's jump ahead, let me set the stage, and by, and the way, again, not a, not a prediction that I'm happy to have had come true, but, let me set the stage. So you are talking about, um, federal appellate court judge, uh, J. Michael Luttig. Uh, this is one of the most, most doctrinaire conservatives in the federal judiciary. He is Ted Cruz's personal mentor. He is the person that Ted Cruz has singled out and said, yeah, if you, know when asked in 2016, who would you appoint to the Supreme Court, he said Michael Luttig and judges like Michael Luttig, right? So that, there, is a close personal relationship there. John Eastman clerked for Michael Luttig.

0:03:17 Thomas: There's only been time in the geological record for about three sentences of mentoring from this guy. Like if he started mentoring at the dawn of time, he will have said, when you need, and then that's about it. That's all he would have said.

0:03:24 Andrew: So we'll get there In a second. So Ludig plays a historical role, as listeners to Opening Arguments know from episode 574. That was the judge that Greg Jacob brought in to the White House when Eastman was spreading his toxic, Pence can just like send stuff back to the states or declare electoral votes invalid or do whatever the hell we ask him to do. Ludig was the guy they brought in, ago. OK, that's nonsense. And right, you can understand how that would be powerful and persuasive to the gang of hard right conservative conservative activists that were surrounding the president at the time. And right, I have no doubt that it was a really smart decision in the face of John Eastman spreading his bullshit. And again, we can say that now because that's on the congressional record.

0:04:20 Andrew: The problem is, and I again, I said this 90 seconds before they began interviewing Luttig as a witness. This is not somebody that I think wants to help the January 6th committee in any way. His direct clerks are responsible. John Eastman is the architect of the legal theory behind the insurrection. Ted Cruz was a willing participant who spouted talking points that were identical to the ones that we saw being workshopped right here. Those are two of his most important former clerks, and I don't think he wants to see them in handcuffs. And what I predicted, what I said on on Twitter before the testimony began, was that I think he's going to tell the truth, but I think he's doing to tell it in the least helpful manner possible. And boy, did we get that. And I want to tell you, I, I have googled to determine whether Michael Luttig has a speech impediment or disability, uh, stammer, stutter, whatever. I have found zero evidence of that.

0:05:19 Andrew: I have watched him give speeches. I have watched Him give off the cuff interviews with conservative media outlets. He's a sitting judge.

0:05:28 Thomas: He's retired judge, right?

0:05:29 Andrew: He retired now?

0:05:30 Thomas: It said retired in the hearing. So what you're getting at is this is an act? You think this is all an act, this sloth speaking?

0:05:30 Andrew: Okay. Okay. Yeah. Well, I believe I believe that the sloth speaking was designed because if you, if you read, because it is more than just the absolute nonsense of speaking one word every eight seconds, right, in a measured way that goes far beyond what I have seen efforts for other folks in public life who have a speech impediment or who have other disabilities to, if you look at Luttig's testimony, if you read the words, you will see everything he said was was helpful in a long sense but designed to be delivered as unhelpfully as possible, so for example, in answer to the question, is does the 12th Amendment permit the vice president to exercise any discretion in rejecting or accepting electoral votes, the answer answer he gives is no, without ever using the word no in his answer, you go back, it was remarkable, I tried to transcribe it in real time, which which is pretty easily

0:06:39 Thomas: Was just going to make the joke that the transcriptionist, yeah, normally they have those fancy keyboards with like the weird shortcut keys. Transcriptionist must have been like, I think I'm going to do calligraphy for this one. I'm actually going to just, yeah I'm just going to write out every letter, take five or ten minutes on each one and I'll be ahead of where he is.

0:06:41 Andrew: Yeah yeah I illuminate the manuscript, yes and he is a powerfully intelligent person, okay, OK, this is not an accident. In my view, it is not an accident. The reason you do that is the same reason, but on steroids, that, you know, Robert Mueller never said it is my belief we should impeach President Trump, it was clearly his belief that we should impeachment Trump, but it was also his belief he did not want to be quoted saying that, and so every time when Mueller testified before the Senate Judiciary Committee, he was asked a question, hey man, isn't it your belief that we should impeach President Trump, he would launch into some answer that would not enable you to take the soundbite of of him saying yes, and that's what Ludig did in the first hour of testament, and you watched the January 6th Committee, a know in advance that this was going to happen because the only people they allowed to ask questions of Luttig were Liz Cheney and uh uh Wood, the attorney on staff, who was a former Luttig clerk, right?

0:07:57 Andrew: So, again, babied they him. They put him up with ideologues who are, you on his side with somebody that he knows well.

0:08:06 Thomas: But for the love of God, couldn't they have just, I mean, five minutes into it, they'd just been like, okay, this isn't, you're not a real person. Okay. Um, can we get an actual human to talk or just start completing his sentences or just like anything? This is just intolerable. I seriously, I jumped out a window.

0:08:23 Andrew: You saw that.

0:08:23 Thomas: I'm now Dead. I'm a ghost in, I was going to say heaven. I don't believe in that. I'm floating around and I'm doing the podcast still somehow, but I have died from watching this man. It was the worst thing I've ever seen in my life. Could it was comical, this troll. He starts listing vice presidents and he starts listening them to say, you know, well when this vice president, or when this vise president, or with like, yeah, vice president, I get it, you said vice president, already said it, you already said, I get, I get the concept of vice presidents. He goes through like 17 of them and says, like, if any of them had blah, blah, blah, it's, you just cut them off. You know, you have to, right? Is there some rule against saying, okay, we get it, vice president, move on.

0:08:24 Andrew: Yeah.

0:09:03 Andrew: Is no rule. But I will tell you, as a lawyer, when you put on a witness that you think is crucial to your case and you know that they sort of fall in that gray territory, that, right, you need to get specific pieces of information out of them, but they're not enthusiastically on your side. They're not yet a hostile witness, they're right? Not yet trying to undermine you, but you have this sense of like, yeah, no, I know, like Mike's gonna be bad, make these kinds of choices, right, and you will adjust on the fly, and like if you think that you're about to do something that's going to piss them off, you'll back away from right it, rather than have the prospect of watching watching your own witness sort of fall apart in front of a jury, which looks really bad to a jury.

0:09:52 Andrew: So I will tell you, I think I do not understand the decision to call him as a witness in the first place. Just Right. Have Greg Jacob up there. Greg Jacob was knocked It out of the goddamn park. And the reason is he was there on one six. He was with Mike Pence, he was afraid for his life, and he was also the guy who had to debunk Eastman's bullshit, right.

0:10:17 Andrew: He was the guy went to Bring in Luttig

0:10:01 Thomas: Yeah. Yeah, this is my favorite guy. This is my, oh, let's get dinner sometime, you insurrectionist. I love this guy. I mean, I hate everything he stands for, but he's been great at this.

0:10:18 Andrew: Yeah, Right, Yeah, Right, Yes, Yes, Exactly right, they, should you have never tried to call Luttig as a witness. Um, once they did, I, I think they handled it as well, well, as any lawyer possibly could, but I don't understand why they called him.

0:10:36 Thomas: I mean at least we found someone who's worse at lightning round than you, Andrew. I guess Yes, that's just teasing, but we're

0:10:41 Andrew: Well, Thank you in history, If We look at lightning rounds, the

0:10:49 Thomas: Going to have content for the rest of the century.

0:10:51 Andrew: Problem with lightning is as initially understood by Ben Franklin, All Right, yeah, Okay, You

0:10:55 Thomas: All right. Next episode. That was a 605 and now we'll to 606. Yeah. But couldn't you at least just kindly say for we're on a tight schedule here. Could you get yes or no question? Could you just answer yes or No to the question? Could you answer yes? Or no?

0:11:08 Andrew: Could You Could Try But I think it was very, very clear, you saw the one time, uh, that Wood tried to summarize his testimony, testimony, and Luttig's response was, "I wouldn't want that to be my testimony," and then he asked a follow-up question that was like, "To be clear, your testimony is that the 12th Amendment cannot be so interpreted," and finally, you Got a yes, right, and that, I think, was the last question they asked of him. I, I just think they knew that he, uh, was going to filibuster and Uh, and drag down on the hearings if it continued. I would bet any amount of money, if you could see the preparation, uh, that they scratched a bunch of questions for Luttig off, off their notes. I, I Think they, they adjusted On The fly, It's What I Would Have done, Yeah, So

0:11:09 Thomas: Oh, my God.

0:11:41 Thomas: Unbelievable.

0:11:54 Thomas: Yeah. I just wanted someone to be like, arrest this man. Whatever. This is unacceptable. Whatever this, you're in contempt right now. No, I get it. All right. Well, that guy sucked. We could, yeah.

0:12:03 Andrew: So But But, and we're moving backwards, so this is the third, the third day, I, I don't think, at the end of, you know, look, the reason you and I are focusing in on Luttig, and it will make the rounds on the comedy, late night comedy shows, Right, Um, but, part of the reason we're focused in on this is just how much of a rehash of Opening Arguments episodes 574 and 602 that this is, we, right, pieced this together from the documents and laid it out to you already, the average Opening Arguments listener didn't hear a lot of new stuff. The average person heard way huge amounts of new stuff.

0:12:17 Thomas: Yeah. Yeah.

0:12:40 Thomas: You mean before they turned it off because this guy was unwatchable. Okay.

0:12:42 Andrew: Yes. And terms of clips from the third hearing, everything in after the break, I thought was incredibly effective. I think those are the clips you're going to see on CNN and MSNBC, which is matching up what the president was being told from inside the White House during the afternoon of January 6th with his public words. With right? People saying, hey, you've got to stop this. And then 2:24 him tweeting out Mike Pence didn't have the courage to do what it was. And then smash cutting over to the Proud Boys going, yeah, well, if we find Mike Pence, we are going to kill him. That's really damning.

0:13:08 Thomas: Right.

0:13:22 Thomas: And the guy saying like, Everybody told him Mike Pence isn't going to do this. The vice president can't do this, and then they smash cut with Trump saying, oh, talk, know, in public. I talked to Mike Pence. We're on the same page. It's like, wow, that's incredible.

0:13:33 Andrew: And I don't think you saw, because, again, this was after the break. After the break, they came back and they played clips of a dozen people, including Ivanka, saying, "Oh yeah, no, I was there when my dad had that call with Mike Pence, and that did not go well." Like, and and and again, the cumulative effect, I think, is really, really damning. Um, I want to go very, very briefly back. So that's the third hearing. The second hearing was on Monday, so we haven't had a chance to talk about it on this show, and the principal effect of the second hearing, which we learned really, really new pieces of information.

We learned that Rudy Giuliani was absolutely completely smashed on election night, that that that he was a drunken idiot, and and again, the net effect of Tuesday's hearing was, here are 50 people around President Trump saying, look, the the idea that there's fraud is nonsense, the idea that you could just declare a victory here on election night is insane, everything that you're being told by this is just absolutely ridiculous. Uh, and Trump instead decides to go with the one drunken idiot that's telling him what he wants to hear. And again, the language that I would use here is not specific intent from the standpoint of proving a statutory offense, but is what we call willful blindness, right? At some point you can manifest, and a jury can can infer

0:14:19 Thomas: That was new to you.

0:15:06 Thomas: Okay, I

0:15:06 Andrew: And does all the time. Yeah, okay, you intended to do that when you were like, "No, no, I I was just playing with this gun and I had no idea what it would do." Well, you hadn't you dropped it seven times and it went off all seven times? Yes, well, and then didn't that occur to you that it was full of bullets? Well, you, no, I still didn't know, right?

0:15:28 Thomas: I got to ask you some questions about this. I've been stewing all week on this because about how there's always the play dumb defense. I'm too dumb to crime. I didn't know, whatever. And, am I just in disbelief that this matters, Andrew. And I would like to go through this one more quick time if if you can.

0:15:45 Andrew: I I want to do that. Can I, can I give, because I actually took down, this was Kit Atkins on Twitter, who I think gives voice to the too dumb to crime in a way that kind of steelbots the argument. So as we take it apart, let me, let me read what Kit said. "We are talking about a narcissistic game show host turned president here. He loves worship more than anything. If the drunk guy is the only guy telling him what he wants to hear, I can absolutely believe that that's what he chose to believe." Okay.

0:16:13 Thomas: Sure. Me too. I don't care. How does that matter? I guess I was under the impression maybe, and this is me wishfully thinking, that this is just kind of icing on the cake and trying to make the best case you can, that don't you have to prove that this guy absolutely knew. The But more people are talking about it, the more this has developed, and some of what you said on aisle 45, it's genuinely sounding to me that like the legal concern is, unless we can prove that he took in the information to his noggin that the election wasn't stolen, then no crime. And I'm in disbelief. Could you read me once again the statute we're dealing with?

0:16:15 Andrew: Yep.

0:16:50 Andrew: There are lesser statutes and any, the one I'm focused on, the biggie, is 18 U.S.C. Section 2384. That is seditious conspiracy. And that reads, in relevant part, if two or more persons conspire to, by force, to prevent, hinder, or delay the execution of any law of the United States, they shall each be fined under this title or imprisoned not more than 20 years or both. There's right? Lots more other stuff around it. But notice the crucial elements there are by force to prevent, hinder or delay the execution of any law of the United States. That is the Electoral Count Act.

0:16:52 Thomas: The one we're mainly talking about.

0:17:31 Thomas: Yes.

0:17:31 Andrew: So Right. A valid defense right to this statute is, oh, I was not trying to delay the execution of the Electoral Count Act, I legitimately thought the Electoral Count Act allowed me to call up the vice president and go, hey, don't don't bother with that electoral count act thing, just send it back to the states. OK, now that's an unbelievably.

0:17:50 Thomas: But that's not all of what we're talking about, though. We're also talking, right? Because that's Not even any of what Jan 6 was.

0:17:58 Andrew: That's absolutely what Jan 6 was. The Right. Reason it was January 6th is because that's when the electors were being counted. Right, that's why it was the drop dead deadline.

0:18:03 Thomas: I sorry, are you telling me that that's the crime that matters and not the fact that he led an insurrection on the Capitol?

0:18:10 Andrew: So you could say, right, by force to seize, take or possess any property of the United States, that right would also fit within that. You could say conspire to overthrow, put down or destroy by force the government of the the United States, right? But in my view, right, having read, uh, the case law, and again the case law here is pretty sparse, those are even harder to prove. Like, I think the easiest one to prove is there was a lawful proceeding, right? There, that is, there was a meeting of Congress, uh, chaired by the Vice President to count the electoral votes, and Donald Trump whipped up a frenzy, conspired with the Proud Boys, planned for months, uh, planned for at least a month, uh, that we know of right now, to hinder, delay or prevent that from taking place, yes. That's exactly right.

0:18:51 Thomas: Yeah, precisely. And nowhere in that,

0:18:56 Andrew: And,

0:18:57 Thomas: In my mind, you're the lawyer, I get it. You're the expert. I don't understand why he has to believe that it's a valid thingy or not. I'm trying to think of equivalent an type of intent crime. If I run in with a gun to like, like, I don't know, some federal court proceeding or something that would also be under the statute and I disrupt it and stop everything and whatever. I just don't see how in the world a defense could be.

Well, aliens told me this wasn't actually a federal court preceding. They told me that it was the basement of a pizza parlor where kids were being trafficked. Oh, you're free to go because you didn't actually think. Now, and again, assume the hypothetical that genuinely they truly truly believed that something in reality wasn't what it actually was in reality. Why does that have any bearing on what they did? It seems to me what matters in the element of the crime there is you interrupted a lawful thingy. Does. And nowhere in there is you are the determiner whether or of not this was a lawable thing. We already know it was, like, here's what I want to say, let's say there was election fraud on let's say some of the whatever, just for hypothetical, the ballot dumping, whatever bullshit thing you want to say, even if so, that wouldn't have made this legal, right?

The process for that is through the courts, the process for challenging that is also at the state level, to the states have certified their electors, if you have arguments with how the states have done that, that does not give you license to undertake a coup to stop the Count Act from happening. I just don't understand, why does it even matter at all what he believed was going on? We objectively know what was going and we know that he was trying to stop that, which seems to me to be the elements of the crime.

0:20:33 Andrew: You're asking me to argue the opposite side, I'm giving you the arguments.

0:20:36 Thomas: No, I'm not. I'm asking you to argue what you've said. I don't understand why this is that important.

0:20:43 Andrew: So here's why it's important. Some criminal offenses are strict liability offenses. All right, you have to prove is that the person did the act. That's right? Why, when you get the speeding ticket for driving 85 and the cop says, "Did you know how fast you were going?" You're an idiot if you answer that question, because, right, it doesn't matter how fast you thought you were going, what matters is how fast were you going, did you intend to speed, no, don't know, don't care, right? So that some criminal actions fit within that, activity, that and it's why I have talked about, uh, the, about Fannie Willis's, uh, convened grand jury that is still, by the way, hearing testimony as we speak, that I believe will deliver an indictment, uh, under Georgia law for violation of the Georgian statute, which is a strict liability offense, right, which, which says, "Whoever shall cause or attempt to cause an incorrect figure to be entered in connection with any election is guilty of election fraud," and even then, there's still a little bit of what you have to prove.

You have to proof that you know the figure is incorrect. But fortunately, we have that level of proof in that case, right? We know that Trump says, if you take him by his word, "I won by 8 million votes in Georgia, I just want you to find, find me 11,700." There, right, you go. That's why that's a slam dunk offense in general, and particularly in connection with federal criminal statutes.

0:21:10 Thomas: Yeah.

0:22:02 Andrew: Everything else requires you to demonstrate. You heard this on our Law'd Awful Movies, what we call mens rea. Latin for the criminal mind, the guilty mind. That Right, is, you have to know at some level that you are committed. Committing a crime, that you are committing the crime of which you're being charged in order to be charged with that crime, That right? Is different from the, you know, ignorance of the law is no excuse. And I realize there are a lot of sort of competing aphorisms here, but the idea is if you are going to take away someone's liberty, right, in a way that is, right. Permanent and irreversible. One of the safeguards that had been, Know, sort of you built into the criminal process from from not just our nation's founding, but 13th century Saxony, is the idea that you really should be going after the people who know that they're criming. And so I get it. I think there's plenty here.

0:22:56 Thomas: So that's not written into the statute. You're just saying this is a thing that applies all the time to, because I think the problem that I'm still not hearing an answer to, and I'm not saying, you know, I don't know that I am right on this or anything. I just cannot, I need to understand it in my mind is he intended to interrupt this proceeding. So which intent matters? Is it the intent that he intended to interrupt this thingy to stop this process or what, what it sounds like you and other people are talking about that he in tended it and knew that he, his underlying reasoning was wrong or something, which that strikes me as not mattering.

0:23:01 Andrew: I'm saying in general, sort of layered on the top of no. So so so the answer is it's more gray than that. This Right. Is always the answer. Right? And we've talked about how, for example, think about murder. Right, if you had, an ambient sleepwalking defense, like right, I got up in the middle of the night, I walked down the hallway and, you know, you're in my guest bedroom and I stabbed you to death. Right. That would meet the criminal act of murder. If I introduce as a defense that literally I had no idea. Right. Like this was all done that Ambien, you know, causes people to sleepwalk and do things that they don't remember. And I was never conscious for any of it. That would negate the criminal mindset. I never intended to murder you in my guests bedroom. Okay. What about something in the middle? We've talked about this before, Instead right? Of being on Ambien, you and I stay up drinking scotch and I get blackout drunk.

0:24:20 Andrew: And in the the middle of the night, while blackout drunk, I stab you to death. I then can't raise that as a defense, right? Because I intended to get drunk, and the law says that, uh, everything that I've done while drunk is a logical consequence of, of the extension of my intention in which to do in the first place.

0:24:28 Thomas: Know the equivalent doesn't seem to me to be either of those things you mentioned, getting drunk or any of those Things. The equivalent to me seems, oh, Easter Bunny told me that it wasn't you. Andrew is actually Adolf Hitler who was in my bedroom. And for that reason, I killed Adolf Hitler. Is that a defense? Cause there, there must be a limit at which you're like, well, this no reasonable person could believe this. This is, this is not real like

0:25:02 Andrew: Now I think you've come around to my side, right? Because that's what the point of going through all of this testimony is, is to put this justification in the realm of the Easter Bunny and Hitler.

0:25:14 Thomas: Slight clarification though, because what I'm seeing is a lot of focus on, but did he really believe that the the, Easter bunny, that, that the guy was Hitler. And what I'M saying is no, no, no, that I don't give a shit if you believe that or not. What it should be is that's so ridiculous. It doesn't matter.

0:25:14 Andrew: Okay. Right.

0:25:31 Andrew: And That's right. And that's exactly what, what I'm pushing back on. At the far extreme, that prosecutors that do infer intent all the time, like, it is rare when you get, you, somebody calling somebody, Trump calling Brad Raffensperger and allocuting to the elements of the crime on the phone, right?

Like it is very rare to have someone say, I know I won by eight million votes, but I'm just asking you to find 11,700, I don't give a shit what that number is, just put any old number that will allow me to win. Right? Like you don't often get, you know, I would like to exchange goods and services for sexual favors. Right? Like it just, it, it doesn't happen.

So juries are required, when, when you are, when you ask, has this person met the mens rea intent requirement to commit the crime, to make assessments about people's mental states. And as I point out, um, one of those assessments can be a willful disregard of the truth. And, right, so the entire second hearing was meant to demonstrate, hey, look, everybody with two functioning brain cells around the president said this argument is terrible and stupid and wrong, and anybody telling you to do it is a traitor to the country and does not have your best interests at heart, and the people saying do it were drunken idiots. Right? And you have the attorney general, I, I cannot wait to get all of Bill Barr's testimony. Uh, they still have not released those transcripts, but I'm, uh, looking forward

0:25:32 Thomas: Okay. Yeah.

0:26:55 Andrew: To it, yeah.

0:26:55 Thomas: It's every time he's on there, it's so weird because I'm wanting to see Bill Barr, the most evil person perhaps in the administration, but he's best the case against Trump so far.

0:26:59 Andrew: Yeah. Quote if he believes this stuff, stuff, and it took every bit of decorum and restraint that Bill Barr has to not say shit. Right? If he believes this stuff, he's become detached from reality. Okay, that's a great piece of evidence if you were trying to establish the mental state. Right, you know, if I'm the prosecutor and I'm giving an opening argument and I'm preparing my summation, I'm gonna say, in, in my opening, in statements, you're going to hear testimony from multiple witnesses that time and time again, they advised the president that that these arguments were, quote, nonsense, were, unquote, bullshit, held no legal weight, would lose nine to nothing in front of the Supreme Court. Now, the president's lawyers will get up here and tell you he honestly believe these theories. But at the end of the day, his arguments for that are designed to be pretextual, to evade liability. You must decide whether the president honestly believe that or whether this seems to be a case of selective memory

0:27:21 Thomas: Yeah, yeah.

0:28:04 Thomas: That's so weird. And I'm so sorry. I hope this is, I hope there are enough people who are like me that this is useful to the audience, but it has been driving me nuts. But I think we've at least established maybe that the people I've seen social around media talking about, well, this is not going to work unless we can literally do a brain scan and see that he didn't really believe that the Easter Bunny told him that I was Hitler. That seems to not matter as much. Go But back to that jury instruction thingy or whatever, the opening statement you were just saying. Because to my mind, this ist why I asked you the hypothetical that I think got buried in this you that didn't answer yet, which is, wouldn'T you instead say, it doesn't matter whether Trump believed this or not, because the proper channels, the proper way to deal with this, even if the claims of ballot dumping or jump, a truck truck driver, blah, blah.

Even if those were true, proper way to go, but the legal way to go about that is through the courts, which they did and it didn't work. And this. Let's say that was true. Let'S say there's some state, I don't know, Pennsylvania, and there, let'S say, there was a truck of ballots of blah, blah, but Pennsylvania, for whatever reason, and reason, they still certified the results. Would that make there be no crime here? Would that makes it so, actually, yeah, Trump is allowed to try to get

0:28:04 Andrew: Right okay yeah

0:29:17 Thomas: A bunch of people to hang Mike Pence because, you know what, there was fraud somewhere. That can't be how it works.

0:29:23 Andrew: That's not how it works but that's not the fact that they're trying to disprove here okay you can accept and indeed the one one six committee I don't know the first hearing I thought pretty devastatingly debunked uh all of the claims of fraud but I don'T THINK THEY'RE GOING TO TO FOCUS ON THAT AND THEY DON'T HAVE TO BECAUSE THAT'S NOT THE MENTAL STATE THAT THEY NEED TO DISPROOF BECAUse AS YOU POINT OUT YOU CAN BELIEVE THAT THE ELECTION WAS FRAUDULENTLY STOLEN FROM YOU BUT ALSO BELieve THAT THE REMEDY YOU WERE trying to pursue. That is, having Mike Pence just declare electors in your favor is not constitutionally sound.

But it is that second fact that you have to disprove. Because if you honestly believe that Mike Pence has the power to go in and declare electeurs invalid and or send it back to the states, then everything Trump did is in service of something that he believes is an actual legitimate application of the law. Now, committee has done a good job to date of showing that no reasonable person could actually believe that that's the law, okay? But if you ask me, is there still some level of doubt? There's still some level of doubt and and I think I think that the January 6th committee is engaged in storytelling here. I I hope that that's the case.

0:29:57 Thomas: Yeah.

0:30:35 Thomas: There we go.

0:30:48 Thomas: Hmm.

0:30:48 Andrew: Because I will tell you the one piece of evidence, the one category of evidence that they have not introduced yet is they've they've introduced, let me give it by uh negative implication, we've gotten a lot of testimony of, and then I told the president this, and then I told the President that those people are insane, and then I told the president that that person is drunk. And then I told him, you know, that if you believe this, you have to be, you out of touch with reality. What we have not gotten is any testimony of, and then the president said, a little bit today. Yep. That's right.

0:31:20 Thomas: We got a little bit of it with the guy, yeah where he was, and this I thought was really really interesting and useful, which is. It's he President Gish gallop or whatever, you know, where every time the president would ask about, oh, well, what about this dumpster full ballots? And he would say, well that's nonsense. Here it is. And this guy testified that Trump would just not address that at all and just move on to the next example. So that's the closest we've got to like what Trump actually said. Mm hmm.

0:31:28 Andrew: Yep. Yeah. That, that was, that Was, that, Richard Donahue, the, uh, acting assistant attorney general, uh, whose videotaped testimony, I think, was was very, very effective. I think that's exactly right. We have not gotten a kind of a clear statement, right? We got it today about Eastman, right? And they know how to put this together. Uh, Greg Jacob was like, "Yeah, I told Eastman you're full of shit and you'd lose nine nothing." And what did Eastman say to that? Well, he started off by saying, "Maybe it's seven to two," and we talked about Clarence Thomas, but eventually he, he came around to my point of view and agreed with me that this position is meritless? You have yet to have somebody say that about Trump. And I don't think that's an accident, right. I don't think that it is because the January 6th committee doesn't have a document or a witness willing to testify that. I think it's because they're waiting to put that all together.

0:31:58 Thomas: Hmm.

0:32:09 Thomas: Eight one. Hmm, really? I think it's because that's just how Trump pathologically is. He will never admit that he's wrong about anything like that. There's no there. I don't believe there exists in the universe. If you had all of this recorded on tape ever, Trump saying, oh, yeah, you're right.

0:32:38 Andrew: Oh, no, I agree with that. But I think that it would shock me if the know, there isn't a terminal question to Richard Donahue during his deposition of. And so in your opinion, Mr. Donahue, after you presented these arguments to the president, do you think the president truly continued to believe in X? Or do you think that he was merely holding on to that for political gain? You'd be irresponsible not to ask him that question.

0:33:16 Andrew: And I think some of those witnesses have got to to have said, yeah, now he never said anything to me, but it was clear because he just kept moving on to different and stupider ones. And then when we would track those down, he would go back to the ones I'd previously debunked, right? It's like hard for me to believe that that doesn't end with a particular conclusion, but but we'll see, yeah.

0:33:15 Thomas: Mm hmm, OK, absolutely. Absolutely. And thanks for doing this. We've gone more than we intended to on this. I guess the statement to summarize that I was trying to get at is I hadn't heard anybody say what I said earlier. And I think you echoed, which is the reasonable person standard. All I have heard in the in the discourse is, yeah, but they can't prove that Trump didn't know. No, think that it blah. And not once until this very recording, have I heard anyone say, all I have to prove is that any reasonable person would know that this was bullshit. Is that not the standard? There's got to be a reasonable person standard. Otherwise, if you have a superpower, which is you're such a narcissist that you never believe that you're wrong or that you lost, you are immune. You'd get to commit any crime. As long as you're so stupid. An asshole that you always believe that you're right, you can commit any crime. That can't be the standard.

0:34:25 Andrew: So for for fear of continuing, uh, down the rabbit trail, I I want to push back a little bit. The standard is still a subjective standard, right? It is still what was the mindset of Donald Trump where I am pushing back on is the notion that in order to for a jury to convict someone of possessing the requisite criminal intent, they have to allocute to that element of the crime and say, yes, at the time I I intended to kill Thomas Smith. And what I'm pointing out is that juries, in fact, reach a conclusion about a criminal mindset from observing individual defendants' behaviors all the time. This is, in effect, the primary duty of the jury, is to is to look and go, based on what this guy did, here's what we thought about what his mindset evidenced. And right, that can be tricky when you were talking about did Donald Trump sincerely believe that he had the right to tell Mike Pence to not count certain electors or send them back to the states?

0:34:37 Thomas: Wow.

0:35:27 Andrew: And did he further have the right to bring as much pressure as he possibly could on Mike Pence to do that? Was that consistent with his overall behavior? And I think we have gone a long way towards establishing a set of facts that would enable a jury to go, oh, if he was still articulating in public that he believed this theory, it's only because that served his self-interest. He couldn't possibly have really believed this, you can't have 50 people tell tell you it's bullshit, and then go, well, you know, drunky McDrunkerson over here says it's not, so I'm good with that.

0:36:02 Thomas: So Saying is it is actually true that if you have a personality disorder that makes it so you always believe that you are right in this way, that you can actually commit any federal crime that requires this mens rea. It's just that you might get snagged if a jury is like, well, no, a reasonable person could think that maybe. But aren't? But what What if you literally always think that what you're doing is legal? It sounds like it is a get out of jail free card in this way.

0:36:26 Andrew: So That's where we would parse out what actual intent means. And if you want to tell me that the criminal justice system does not handle neurodivergent personalities, well, I got zero argument for you on that score. I don't think it's quite as bleak you as paint it, but hopefully we've broken down what the mens rea requirement is and how the January 6th committee is systematically going after it. And I think additionally, you, right, and I are on the forefront of the J6 committee. The end of this is the Department of Justice bringing a criminal indictment under 18 U.S.C. Section 2384 against Donald Trump. You and I think there's enough evidence for that already. The right. Question is, how do you persuade, you know, Lawrence Lessig's chicken shit prosecutors? How right.

Do you persuade a prosecutor who is reasonably, and again, you know, let's let's give voice to Randall Eliason, who, you poke fun at that on on Twitter a little bit, how do you give voice to a reasonable prosecutor that says, look, I believe in my heart of hearts that, uh, Donald Trump is a criminal. I want to bring criminal charges against him. The one thing I will not risk is having a jury declare him not guilty. And I believe that that would be an even worse outcome. Now, we could disagree with you

0:36:45 Thomas: Yeah,

0:37:45 Andrew: Know, is it better to try and lose or whatever? But I could certainly see, right, a well-meaning prosecutor going, as bad as things are right now, how could we possibly explain if Trump gets to wander around with a not guilty verdict? Much more damage would it do? Well, I I agree with you on that. But I also would say that I could respect somebody who, and I could easily construct an argument as to why that would be worse. So, right, that in mind, to right, me, that's why I'm continuing to sort of steel bot the opposition, because I want to to end this month of hearings with, OK, there is no excuse not to indict right now. And right, in my mind right now that there are, I have given voice to those excuses.

Do I, do I know, I don't. If I were a prosecutor, would I bring charges? Yes, I would. Right. The question is, can we lock it up in such a position that you and I can call out Merrick Garland as attorney general and the Department of Justice and every sitting prosecutor for not indicting Donald Trump on the publicly available evidence.

0:38:00 Thomas: That's not worse than just not trying personally. Yeah, totally.

0:38:51 Andrew: And that's where I'd like to be, I am. And I, 85% of the way there now? Yeah, right. I think I am. But that's the goal that I have in mind. Not to persuade you, you, you were persuaded on January 20th, 2017. Uh, my goal is to persuade the reluctant district attorney. My goal was to persuade you, the few remaining, like, well, I just vote Republican because, you know, I like lower taxes.

Well, you know, that's that's what I'm thinking of right now, um, and that's sort of my approach. And I think with that as the goal, I've been really really pleased with what the January 6th Committee has done to date. I think there's still work to be done. So in light of that. But breaking news, as we are recording, this is the one piece of information that was completely new even to OA listeners, and that is an email. This is the consequence of the Eastman litigation that we have been following, but this is an unreleased document that was turned over to the committee from Eastman to Giuliani. I think I even know the number of this, the Bates number of this based

0:39:36 Thomas: Oh, Oh, I love it.

0:39:54 Andrew: On the court's ruling. Couple of days after January 6th, John Eastman emailed Rudy Giuliani and said, quote, I've decided that I should be on the pardon list if that's still in the works. End of quote.

0:39:54 Thomas: Oh boy. Wow. I love the casual. That list still going around?

0:40:15 Andrew: By the way, you remember the thing of the people who are committing crimes, yeah, uh, having said in print a bunch of times that I am committing crimes, uh, maybe I should be on that list, yeah.

0:40:18 Thomas: Yeah. Wow. I think, and that's an email. So that's in black and white for all to see.

0:40:27 Andrew: Yeah, Eastman. Eastman is the anti-Donald Trump, right? Like, Donald Trump makes sure never says anything directly, doesn't use email, doesn't leave a documentary. Eastman writes, "Hey, just, just to be clear, since since we've already engaged in one minor violation of the Electoral Count Act, what's a little more light criming between friends, right?" Like, we published that episode 574, so I said at the time it would not shock me if there were even more damaging Eastman emails, and uh, this appears to be one of them. Um, when you say, "I want a pardon because I have committed crimes," uh, that's, um,

0:40:33 Thomas: Yeah. He's been like, I know I told you this verbally, but just following up.

0:41:09 Thomas: Yeah, it's hard to argue that you wanted a pardon for nothing.

0:41:13 Andrew: Do I, don't I, have not asked the president for pardon? You know why? Because I haven't committed any crimes, times. So, yeah, um, at that point, it is very, very difficult. I mean, again, you know, we've talked about what the goal is here, but, but now for, for Donald Trump to say, well, no, I really believe there was fraud and I really believed that I could just tell the vice president to overturn the election, why? Because I'm an idiot, that, that's right, that's the argument. You, is now the counter argument is, okay, you can take the president at his word when he testifies that he believed in this crazy theory. The two people who promulgated this theory to the president were A, intoxicated, and B, admitted to every other person that the theory was nonsense, right? That it held no water, that it was dead on arrival, that Het would lose 9-0 in the Supreme Court.

0:41:59 Andrew: Oh, and by the way, that et was probably criminal behavior. This is how you build the case, so I'm excited, I, I think that this means that, the big takeaway is not going to be sleepy Michael Ludig, uh, acting as the sloth from Zootopia, it, it, uh, means that this, we're gonna be three for three in terms of these committee hearings really landing serious punches, and I'm excited about it.

0:42:12 Thomas: I can't wait to watch the rest of that. Thanks for indulging all that. And we got, I got a lot out of that. I think I understand a lot better. When's the next hearing?

0:42:31 Andrew: The next hearing is Tuesday, June 21st.

0:42:34 Thomas: Can't wait to see what that one holds for us. 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. There's a huge diversity of guests on the show. People from every walk of life, honestly, every part of the political spectrum, which I think is kind of rare nowadays. Got folks from a hostage negotiator with the FBI who offers techniques on how to get people to like and trust you, which the way to a cinematographer who discovered a lost city in the jungle and made one of the most important finds archaeological of the century. With the Jordan Harbinger Show, I recommend going to the starter packs.

0:42:37 Andrew: Me too all

0:43:32 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.

0:44:00 Thomas: And I guess we are doing a wild card that everybody, I can't believe this is a wildcard. We're going see if Andrew can squeeze it in. You know, that's why I was saying that we found the only one person worse at, lightning rounds than you, Andrew, I trying to inspire you. Let's see if you can cover this Geico payout. This is everywhere. I can't wait to hear what the actual details are. It says, the headlines you're seeing that I'm seeing that we're all sharing, Geico pays out $5.2 million for car sex.

0:43:56 Clip: WOAH-

0:44:15 Andrew: Right That is an exact transcript of the CNN headline, Geico ordered to pay Missouri woman 5.2 million after she contracted STD in a car. Now, it should be STI, is that preferred, the but that headline is not true. I'm going to explain why it's not true, and I'm gonna say that this comes, comes along with our general rule, going all the way back to episode 29, in which we discovered, discussed the McDonald's hot coffee litigation. Here's the rule. If you see something in the news that's designed to generate sympathy for a multi-billion dollar, multi-state, or multinational corporation, you're almost certainly being misled. And you're being mislead here.

0:45:11 Thomas: You're saying we have a McDonald's coffee on our hands? Almost. I can't Wait for Eli to not accept the argument that you're making.

0:45:16 Andrew: We're close oh yeah So, so, Thomas, I'll say that a crucial component of buying insurance is, is that you are also buying the insurer's duty to defend you against litigation, right? So So think about this car wreck situation. You right? Are involved in an automobile accident. The person involved in the accident threatens to sue you. Then you don't have to pay for your lawyer to come in and defend against that litigation. The insurance company pays for your defense. That is called the duty to defend. And here's how it works, You timely right. Report a covered claim against you, and the insurer then must either appoint defense counsel for you and pay for it, or if the policy permits it, allow you to select your own lawyer and then pay for that. And the insure can, this is oftentimes in the policy, they will get the obligation or the right to direct the defense. So in other words, since they're going to be the ones paying, they're the ones who get to call the shots.

0:45:45 Thomas: Wow. Right.

0:46:21 Andrew: Now you might be saying, okay, under what circumstances does the insurance company have to defend you? And the answer is pretty much all the time, We, right? We wanted to make this as expansive as possible. And the rule in insurance litigation is called the eight corners rule. Okay. And it's called the Eight Corners because there are four corners to the complaint and there are Four Corners to your policy. Policy.

0:46:44 Thomas: Oh, I thought we were getting in the octagon. I thought We're Going to Do Some Jiu Jitsu.

0:46:47 Andrew: It does make an octagon. And this the majority rule there, a couple of jurisdictions to the contrary, but we're not going to focus on that. It says the insurer can look at the policy and they can look AT the complaints in the lawsuit. And as long as any allegation is even potentially covered by the policy, they have a duty to defend. So that's what eight corners means you don't get to go off and go, well, this one is really kind of nonsense because the witness here was a drunken Rudy Giuliani or whatever. You don't get to do that. It is, what does the policy say? What is the plaintiff alleging if it's potentially covered? Even if it winds up not being covered, you still have the right a to defense provided by the insurance company. That's what you pay for in your policy.

0:47:35 Andrew: So when you present a claim to the the insurance company, they can do one of three things. Number one, they can accept their duty to defend and just defend you, pay for your defense. Number two, they kann agree to begin paying for your defense subject to a reservation of rights, right? They can say, look, you've said we have a duty to defend without waiving our right to say that we don't. We're going to cover your defense right now, but we want to reserve the idea that this is all just nonsense and maybe we'll, you know, claw this back from you later on. Now, I will tell you, reservations of rights are typically the thing you do and typically valid when you're talking about complex that are held by other large corporations under general liability policies that are held by large corporations. That's when you would say, yeah, okay, we're going to reserve our rights because, you it would make sense to try and claw back if you're insured is ExxonMobil, right? Well, you may get back those defense fees. If you're ensured as Thomas Smith, they're coming after you to get back their defense fees.

0:48:00 Thomas: Okay. Okay. Yeah. But

0:48:40 Andrew: It's just such a, right.

0:48:41 Thomas: It's Like One Of Those Good Faith Things Like, All Right, We Think This Is BS, But but we'll start, you know, we'll cover you for now.

0:48:48 Andrew: Or three, they can decline to defend you. They can say, yeah, this is not arguably within your policy terms, no one in good faith could sue you for this claim and think that the policy would cover it, and so therefore you're on your own. Okay, now, as you think through those possibilities and you think about the relationship of, in this case, Geico, or any big insurance company, to the policy holder, you can instantly discover a massive imbalance in power, right?

0:49:17 Thomas: Yeah, and they just pick number three every time.

0:49:18 Andrew: Yeah. They would, without, without, without litigation, without legislation, yeah, they would just be like, oh, great. Oh, no, no one could possibly hold that against you. And then you lose. And now you have to go back and sue Geico.

0:49:34 Thomas: Yeah, they have high power to Mr. Burns's closet full of a bunch of attorneys.

0:49:36 Andrew: Yeah, they have they have coat factory lawyers. Absolutely. So one of the things that states have done to level the playing field is to pass statutory laws that disincentivize making those declination decisions. And that's key to understanding this case. This is the revised Missouri Statute 537.065. And it says, any person having an unliquidated claim for damages, that's the plaintiff, that means you have a claim against somebody who's potentially covered by insurance, against a tortfeasor, right? That's the defendant, somebody who has committed a tort against you, on account of personal injuries, bodily injuries, or death, right, and if it's death, obviously that's your estate maintaining it on your behalf, may enter into a contract with the tortfeaser if the insurer has refused to withdraw a reservation of rights or declined coverage, right, so if they do anything other than defend you, whereby the person asserting the claim agrees that in the event of a judgment against the tortfeasor, neither such person nor any other person, except as against those specific assets listed in the contract and except against any insurer which insures the legal liability of the tortfeasor.

0:49:40 Thomas: Yeah.

0:49:54 Thomas: They

0:50:53 Andrew: Now, I've read part of that statute. Let me kind of translate that into English. It says, if you have an insurance company and they refuse to cover you, they refuse, the second or the third option, right? They reserve the rights and you come back and go, hey, have you figured out that reservation of rights yet? And they're like, like no we still haven't, or they've said outright we're not paying for your defense. Then what you can do as the defendant is enter into a contract under this particular law, 537.065, with the plaintiff, and you can say hey, we're going to have an expedited trial on the merits of this underlying claim, and here's the key part, the damages that you as the plaintiff are allowed to recover in in this expedited trial, or in this case, it went to arbitration, you could agree that way too, we'll be limited to the value of the assets that we describe here, the value of the potential insurance coverage. So you can say, hey, yeah, yeah.

0:51:06 Thomas: Do that third option. Okay, sure.

0:51:55 Andrew: We have $5 million of insurance coverage and we're just going to litigate out whether I owe you for this. And and if I owe you $20 million, that's going to get reduced down to $5.2 million, which happens to be the amount of coverage here. The right? Provision also has a provision at subsection four that says any insurer who receives notice shall have the unconditional right to intervene within 30 days, but nothing in the section shall reduce the intervening insurer's obligation to any other insurance, including any co-insurance, right? So in other words, the insurer can then participate in the litigation if they want to. In this case they decided not to, they were like yeah coverage, we decline, we're not going to defend you, uh, and we're not going to participate in the litigation. So hold on to that one, right. So here's the net effect of that law, it says, oh insurance company, you've said there's no chance, remember eight corners, right, you've said there's no chance you're going to have to cover the claims raised in this lawsuit, so you're not going to defend our policyholder at all, cool, cool, cool, cool.

0:52:52 Andrew: So here's what we're going to do. We're going to cut you out of this. We'll just let the plaintiff and the defendant litigate without any other questions regarding the underlying liability. And here's the big thing, they cap their damages at the amount of the insurance. And, you know, by the way, if you change your mind and you want to get involved in the litigation, feel free to intervene, right. And there's still one more piece of evidence that is very positive for the insurance company, and that is you can still raise, and Geico has still raised in this case, that the agreement between the plaintiff and the defendant does not establish a claim that's covered by the policy, right? Can So, you know, if that decision to decline, uh, to extend your duty to defend the the policy holder is meritorious, the insurance company's got nothing to worry about, right? Um, it just says, oh okay fine, like you guys litigate it out, and then, uh, whatever happens we will easily prove in court if we have to that this is not a claim that's covered by the policy. Okay, but think about the opposite.

0:53:49 Andrew: If the insurance company should have covered it, right? If there's any chance that this is a meritorious claim, then what the statute says is, like, you know what, next time get in and defend the damn thing. Now, would have a bad situation, which is a liquidated damages claim by the plaintiff against the defendant for the exact value of the insurance policy. And now all you have to do is litigate whether it meets the terms of the policy or not. That's going to be cheaper and easier on the plaintiff. So that brings us to this case. The facts of the case are not in dispute. It is M.O. and M.B. M.A. and and MB were, uh, regularly having sex in MB's Hyundai Genesis, so uh.

0:54:31 Thomas: Sweet, sweet.

0:54:32 Andrew: Unprotected. It

0:54:33 Thomas: So like there wasn't a condom over the car or.

0:54:34 Andrew: Was apparently not a condom anywhere. MB, uh, did not disclose that he was HPV positive, uh, from cancer, actually, you know. Sort of yeah, and right

0:54:43 Thomas: Oh, wow. Was going to say, because most of the time you don't even know if you're a dude, right?

0:54:47 Andrew: Right. Yeah. And so three and a half years later, Emo got HPV. And so February 25th, and this is where the timeline starts to matter. February 25 to 2021, Emo submits to Geico? That's MB's Hyundai Genesis policy provider, Geico, the petition, the complaint, that she was going to file against Emo, and made a final settlement offer and said, hey, I'm going to follow this lawsuit you don't. And obviously this is by and through her plaintiff's attorneys, but, um, the petition says that during November and early December of 2017, insured and MO engaged in unprotected sexual activities in insured's vehicle, and during those sexual encounters insured negligently caused or contributed to cause MO to be infected with HPV by not taking proper precautions, and neglected to inform and or disclose his diagnosis despite having knowledge of his condition. MO alleged that as a result of the negligence she incurred and will incur past and future medical expenses, as well as past and future mental and physical pain and suffering. Okay, Geico, uh, rejected the settlement offer and not only denied coverage but denied their duty to defend, right?

0:54:47 Thomas: Okay.

0:55:48 Thomas: Sounds reasonable

0:55:49 Andrew: They also initiated a declaratory judgment in federal court, uh, that says, look, man, we don't have to pay for you getting an STI in a car, Okay. Right? So then MO says, yeah, 25th, March 11th. She and MB an agreement under 537-065, okay? Geico said they're not going to defend you, MB, so let's arbitrate this. You're talking about being very quickly, they go to arbitration and get a result in two months, May 17th, 2021. Now, you could not get a result, from a a courtin a year, right, like

0:55:56 Thomas: To me. Yeah. See you in sex court. I'll Right,

0:56:25 Andrew: It would just, this this absolutely expedited things, and the the award, and I want to say Geico's argument here, and they're probably correct, is arbitration was a sham. M.O., right, and M.B., they're on good enough terms that they're having sex in the backseat of a Hyundai,

0:56:26 Thomas: Yeah.

0:56:41 Thomas: Well, back then, end well.

0:56:43 Andrew: They're suing, but they, you know, if she gets a verdict, she's not going after M.D. They're only coming after us, And so right. This arbitration was really a sham. It was designed to get liability.

0:56:55 Thomas: On, let me clarify because I thought there's different layers. It's one thing to be like, well yeah the guy is liable for the thing he did, but is the arbitration, was that decision saying, and Geico should pay for it?

0:57:08 Andrew: There's the wrinkle. We're going to get to that in a second. But first you have to determine, was there negligence on the part of MB to MO? And so,

0:57:11 Thomas: Yeah well that's why I'm confused because that strikes me as totally plausible, and I wouldn't necessarily think this is a sham arbitration because of that result.

0:57:26 Andrew: But let me also say that procedurally, it appeared to meet the minimum of, not a complete sham, Right. Right? So the court notes that, one. The insured set out a defense. Two, Right. Both parties presented opening statements. Three, the ensured cross-examined the plaintiff's witnesses and elicited testimony on in his defense. Four, that the insured submitted as exhibits articles

0:57:33 Thomas: Okay.

0:57:49 Thomas: Call the Hyundai Genesis to the stand and drives on up. Do you swear to tell the truth? Honk.

0:57:56 Andrew: Five, that M.O., the plaintiff, requested an award of nine point nine million dollars in damages. Number six, in his closing argument, the defendant disputed that he was aware that he could transmit HPV to the plaintif, that the plaintiffs got HPV from him, that he had a duty to disclose his positive diagnosis to her and the amount of damages. So there appears to be some contestation. Geico says, yeah, but you guys were in codes. And then the arbitrator determines as a matter of law that one, there was sexual activity in the defendant's car during months of November, December 2017, which occurred in Missouri. Zuri. Two, the sexual activity directly caused or contributed to cause plaintiff to be infected with HPV. Three, that the insured knew that he had been told that his throat cancer tumor was diagnosed as HPV positive.

0:57:56 Thomas: Yeah.

0:58:47 Andrew: Four, that he has been told by the he disclose that diagnosis to the plaintiff prior to the sexual activity that occurred but didn't. And five, that he was negligent and is liable to causing the plaintif to contract HPV, the amount that would fully and justly compensate plaintiff for all of her damages and injuries is 5.2 million dollars and entered that award in the amount in favor of plaintiff and against the defendant insured. Okay, so not as against Geico. That is the first major hurdle here. What this establishes now is that the defendant owes the plaintiff 5. 2 million dollars for negligently giving her HPV. So on May 25th, the plaintiff took that judgment to state court in Missouri to confirm it, which is what you do with an arbitration award.

You can go to state board, you can get a federal court, you can go to any court of competent jurisdiction and go, I got an arbitral award, I want you to confirm this. And state statutes mirror the Federal Arbitration Act. They are incredibly pro-confirming arbitration awards, right? We've talked about that on the show. Don't have time to go through it. Um, so, uh, on that May 25th, goes to confirm the award. Geico moves to intervene in the confirmation hearings on June 18th, so 20-odd days later. Plaintiff opposes. On July 2nd, the court, A, grants Geico the right to intervene, and then B, confirms the judgment. All right, a little bit of cheekiness us there. We are reaching the final conclusion as we are admitting your right to intervene in the case.

0:59:51 Thomas: Yeah, yep. Huh?

1:00:20 Andrew: So within the 30-day period on July 30th, Geico files a motion for leave to conduct discovery, a motion to vacate the arbitration award. So basically, hey, judge, you should reconsider all of this. You should give us a new trial. You shouldn't throw out the arbitration award. You should let us conduct discovery. We're going to prove that the arbitration was procured by collusion, fraud, and undue means, okay? And then was a lot of briefing on that. September 8th, the trial court denied all of those motions, entered in a judgment, and said the Arbitration Award is confirmed. And then Geico appeals that to the Intermediate appellate court in Missouri, which is the decision that came down a couple of days ago that has everyone losing their minds.

1:01:05 Thomas: Uh-huh.

1:01:06 Andrew: And what the Missouri Intermediate Appellate Court did was resolve three arguments by Geico that said, hey, you shouldn't confirm this underlying arbitration award. You it, number one, because we had a statutory right to participate in the case. And the court said, yeah, that's true. But you participated in the the case as an as an intervener and uh, this is from a previous case called Knight. Quote, it is well established that an intervenor must accept the action pending as he finds it at the time of intervention. Okay, so yeah yeah you don't get that, that's exactly right, you don't get more rights for being an intervening

1:01:35 Thomas: You You don't get like a reset just for coming. Okay it's my first day. Let's start over. Go

1:01:40 Andrew: Yep you DON'T get to intervene after the facts and then go, let's redo the fact. You could have been here, right? You had a right to intervene from the beginning. You weren't, tough, tough noogies, right? That's the way it goes. Number two, uh, is that we also have a statutory right to challenge the arbitration award as collusion, right, as the product of collusion between MO and MB. And, uh, again, I think there probably was some of that going on.

1:02:02 Thomas: Hmm. Is Why do you think that?

1:02:02 Andrew: Uh, right Just because, in any situation here, it's, it's reasonable to think, uh, that, you, you are going through this process because you want an arbitration award that conforms to the total value of the insurance asset, and you probably don't have any intention of pursuing it against the actual defendant, right?

1:02:23 Thomas: I could still imagine that. Absolutely. If someone gave me HPV, I might sue them and get them for money for giving me.

1:02:30 Andrew: Sure sure So I, I'm saying even if you grant that argument, the right. Court says, yeah, look, again, you weren't a party at the time that they sought to confirm the award. That's not our fault. You became right? An intervener the day we confirmed it.

1:02:31 Thomas: Yeah. Right. Oh, so like if you thought this was going to be colluding, you could have intervened and been the other side of it. Right.

1:02:45 Andrew: And yep, that is exactly. And that and that comes out more clearly in point three, which is, by the way, OK, statutes. The law says what the law says. We have a constitutional due process. Right there going in here. And they're getting a judgment that is potentially applicable to us and we don't have the ability to challenge liability of damages, And right? The court says, what are you talking about? Let's read from it directly. Geico did have the opportunity to participate and defend its interests, including the ability to challenge liability and damages by entering a defense of the insured.

To the extent that Geico claims it should have been able to litigate any of the the purported findings of fact and conclusions of law in the arbitration award, we would note that it had every opportunity to enter a defense of its insured without a reservation of rights and litigate such matters, but it chose not to do so. Geico chose not to take advantage of this opportunity, instead denied coverage, refused to defend insured, instituted a declaratory judgment action in a federal court seeking a determination of its obligations under the insurance policy, and that federal action provides yet another forum in which Geico may defend its interests.

1:02:51 Thomas: OK. Yeah.

1:03:52 Thomas: OK, so I understand Geico still should have the opportunity to say we shouldn't have to cover this. Right. So is this is just the argument of Geico trying to get in there and at and the last second after not having done this before, trying to gets in there, trying to nip this in the bud and be like, ah, this judgment doesn't make any sense, but in that legal question that the arbitration was on was, and Geico has to pay this 5.2 million, right? Okay.

1:03:59 Andrew: That's right.

1:04:18 Andrew: Right, that and the question there is, is this a covered claim? Now, I need to tell you, because I, this is state court, I tried, I cannot find the the language of the actual insurance policy here, but I have a pretty good idea what it says, right? Typically, a policy here would say something like, the insurer agrees to pays all claims for bodily injury arising out of or in connection with the covered automobile. And so then the question is, is contracting HPV in the backseat a covered claim, right? Is that bodily injury? Does it arise out of the specific coverage of the automobile? And again, it seems to me that there's one of two answers here, right? Either the answer is yes, right, under could be a covered claim because you haven't written your policy

1:04:19 Thomas: No.

1:05:04 Andrew: Language in such a way as to prevent this, and if that's the case, well, you shouldn't have denied coverage, right?

1:05:09 Thomas: Kidding.

1:05:09 Andrew: You pay coverage. Lawyers to look at the language before saying, get out of here, this argument is nonsense, and it's worth pointing out, Geico controls the language of its policy, right, they can write exceptions, they, and they do write exceptions all the time, they can right exclusions from coverage. They write that sort of stuff all the time. So, you know, if the language is arguably broad enough, screw like, that. That's Geico's fault because it wrote the language in the first place.

1:05:10 Thomas: Yeah. Yeah. Yeah. Interesting. Wow. Huh.

1:05:34 Andrew: And it should have known, right, it should've had a lawyer like me, I did this 15 for years, reviewing the language and going, man, we should tender a defense here, Geico. Like your policy language could potentially be interpreted in such a way as to include this. And if it could be, remember, eight corners rule, you must defend. And if they had defended, then they would have been able to participate in the whole process and challenge the facts and all that good stuff.

1:05:58 Thomas: Then maybe and Challenge facts, and maybe either they would have won just on the liability of the the dude, you're saying, or maybe they would have gotten a lower amount, but because they didn't do any of that, it just defaults to like the whole amount.

1:06:05 Andrew: Yep. Yeah. No Yeah, one was there trying to, you really, I mean, you know, again, we have the defendant did, uh, in their, uh, closing statement, try to argue down the liability, but but right. And

1:06:12 Thomas: Okay.

1:06:22 Thomas: That is so interesting because I totally thought you were going to say, yeah, the real story here is they won't have to pay it because there's still this later thing where they can be like, all right, we're not whatever. But you're setting that actually they may have to play this because the wording of their policy didn't an exception for this kind of thing.

1:06:38 Andrew: If it, if is arguable under the policy, then it is bad faith to refuse to defend a policy holder who makes that, who has that claim litigated against them, that's right, one of the things you paid for when you buy insurance. Now, the second possibility is it's a slam dunk in federal court, their policy language clearly excludes it, says something like, while while the automobile is in motion, right, could say that, right?

1:06:45 Thomas: Right.

1:07:00 Andrew: Because then you, I am sure Geico has litigated, like, a tree falls into a car when it's parked, right, is that covered by your policy is it it not covered by right so Yeah.

1:07:07 Thomas: That should be. Yeah, I think it is. Yeah and

1:07:09 Andrew: So so the question is, right, if it's such a no-brainer that you could deny coverage, then you're going to win in your declaratory judgment lawsuit, and then this claim

1:07:18 Thomas: You wouldn't even bother doing this part of it, right? You wouldn't have intervened.

1:07:19 Andrew: Right. That's exactly right. Yeah.

1:07:23 Thomas: You would have been like, all right, yeah, yeah. Blah, blah, blah. You got your fake 5.2 million thing. Now, knock down argument that, right, right.

1:07:24 Andrew: But we're a hundred percent certain we're going win that this isn't a covered claim, right, the fact they're bothered by this underlying underlying liability indicates that they're not a hundred percent certain. And if you're not a hundred percent certain tender a duty to defend, and if you tendered duty to defend you wouldn't be in this problem right right.

1:07:35 Thomas: Yeah. Oh, boy. That's an, interesting wrinkle that I wasn't expecting, so wow, I see why. You weren't saying it's exactly McDonald's coffee, it kind of is, but also, yeah, it's twists and turns, they should have intervened and fought it at the time, and also they may have to pay this, that's crazy, all and no, it's time for a T3BE, each week I attempt to answer a bar exam question using nothing but my ability to talk so slowly that Andrew will forget what answer I even gave. And then I can say that I got it right. So let's hear it. Bar exam question.

1:08:00 Andrew: Yeah, there you go.

1:08:01 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:08:18 Andrew: All right. And a sports ball question. Thomas, a soccer player brought a battery action against a player on

1:08:24 Thomas: Oh, I love it. No, now I don't love it No. Oh my God. That's the worst thing I've ever heard.

1:08:37 Andrew: The opposing soccer team. The soccer player presented evidence that the opposing player kicked the soccer player in the shin when the soccer player was trying to score a goal. The opposing player presented evidence that he was merely trying to get the ball from the soccer player and the kick to the shin was an accident. Further, the opposing player testified that the game was played rough in their city and that the soccer player consented to being kicked regardless. The opposing player also presented a witness who testified that several players are injured over the course of a typical soccer game in that city and that games have been played that way for several years in that particular area. You. The soccer player did not cross-examine the witness.

1:09:14 Thomas: Oh.

1:09:14 Andrew: After resting its case, the opposing player moved for judgment as a matter of law. Should the court grant the motion? A, yes, because the soccer player didn't cross-examine the witness who testified regarding custom in the city. B, yes because the judge can, as a manner of law, decide cases when the judge believes the evidence substantially favors one party. C, no, because whether the kick was an accident and whether the soccer player consented to it are questions of fact for the jury. Or D, no because a motion for judgment as a matter of law must first be made at the close of the plaintiff's case in chief rather than for the first time after trial.

1:09:19 Thomas: Oh man. Okay. Oh Oh, oh, that. Oh, wow. Wow, wow, wow interesting interesting. So this obviously seems like a BS lawsuit to me. I mean, you're you're playing soccer. You get kicked in the shin. That's of course, that's something you accept, but it's an interesting wrinkle in that we got to figure out the judgment as a matter of law thing, which historically I've struggled with, but I'm wondering if I finally gotten this concept through my thick noggin. We'll see. Flopper, we'll call it flopper and regular soccer player. Well, no, that's redundant. That's the same thing. Flopper and hockey player. So the flopper just presented evidence that said, this player kicked me. That's all they did. They said this player kicked me when I was trying to score a goal. That's the only evidence. Now I'm not reading through this. And then the opposing player presents all this really, really good evidence of like, yeah, but I was try to kick the ball and also the game is played rough.

1:10:48 Thomas: All that stuff that you heard. And the soccer player didn't cross-examine. So the flopper just did that one thing, didn't across-examined, didn' anything else. After resting the case, the opposing players moves for judgment as a matter of law. Should the court grant the motion? Holy moly. Okay. A, yes, because the soccer player did not cross-examine the witness who testified regarding custom in the city. Think that could be right. A way in which this matters.

And I think we've had a question like this at some point, but I don't think it matters in this case. And if, let's pretend, replace it with, with you know the player uh hit the soccer player in the shin with a crowbar and then he brings in this evidence of like yeah but we play rough here just because the guy doesn't cross-examine that guy I feel like that you don't forfeit your ability to have the jury evaluate well like yeah but how rough kind of thing it may be so but I'm I'm leaving A as a possibility but I don't think it's a B, yes because the judge can as a matter of law decide cases when the judge believes the evidence substantially favors one party.

1:11:46 Thomas: I think that's wrong. I think that you only decided as a matter of law when there's just no, like when the jury, there's no jury, no reasonable jury could or should ever, you rule in favor. I, I think substantially favors is not good enough for that. So I'm eliminating B. C, no, because whether the kick was an accident and whether the soccer player consented to it are questions of fact for the jury. C is a solid one, but now here's here's the wild card.

D, no, because a motion for judgment as a matter of law must first be made at the close of the plaintiff's case in chief rather than for the first time at the end of trial. And by golly, I think that could be it. Gosh dang it. I'm a little worried about this. It's weird to have two trick questions in a row, but I think this makes a lot of sense because if you are telling the judge, hey, a matter of law, the allegations don't even make enough sense for to have the jury evaluate it. I think you do have to make that at the close of the plaintiff's case. I think it makes sense because if it's weird to be like, let's go through this, you I don't know, six week trial of calling soccer player after soccer player to defend myself and to like testify to all this stuff.

And then at the end, you're like, but your honor, just dismiss all this stuff. Cause this is nonsense. I feel like you should have to do that at the close of the plaintiff's case. And you do it because I think the reasoning is, your honor, don't even have to evaluate if this crap is true.

Like his case is so weak that we don't even have, we shouldn't even have to like provide a defense here because we could grant everything he's saying and it still should go my way, which this sounds like, because the defense could get up there and say yeah, no, I kicked the soccer play on the shin when he was trying to score a goal, totally, I don't even need to dispute that. It's soccer.

1:13:34 Thomas: This happens in soccer. And so, God, for that reason, I'm worried that I think you've mentioned something about this before. But what I'm worrying about is whether or not you mentioned this is an actual rule to the extent that you couldn't even do it now or if it was just like a general thing you do. And that's what I worry. But I I'm going to go with D. It's weird. I hope I'm not just looking for too many trick questions in a row, but I do think you have to do this at the close of the plaintiff's case in chief. And I think it makes sense in this case too, because the jury should not even have to look at whether or not it was an accident because it's soccer. You could have intentionally kicked him in soccer and still, I don't think you would have a case here because that happens all the time. That's part of the risk soccer. Of so but I'm going D. I think it's trying to trick me one more time again. I think it's D, final answer, and my other best answer is C.

1:14:23 Andrew: All right. And if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag T3BE, include your orchestral reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:14:35 Clip: And thank you, Let's go!

1:14:37 Thomas: And now it's time to thank our new patrons at patreon.com/law. And Andrew, I think you are in good form to get back to using your voice to thank our patrons. So why don't you have at it? Take the first half here.

1:14:48 Andrew: A big thank you to Nathan Tate, who I call the big one Bitey, to Cameron Walton, A Founding Fathers Fan Fiction Writer aka An Originalist, Gary Henderson, Crystal Watkins, Sammy Sews That, Justis Beauregard, and matthew bowser. Take it away, Thomas. Wow.

1:15:10 Thomas: And thank you to Janet Kosta, JA John, Stephen Reimers, The Gas Powered Sharp Thing, Lynnette DeBell, Nathan Gall, Mike Groff, and Arnold Wulf. Thank you, new patrons. We hope you enjoy all the goodies. And that's our show. Thanks so much for listening. Can't wait for more hearings. Are bombshells. Get I why all the hype, because these hearings are amazing. Would go And so far as to say, Andrew, that I'm maybe feeling almost fantastic about it. That's how far I'd go.

1:15:37 Andrew: All right.

1:15:38 Thomas: So great breakdown. Looking forward to more hearings. See you next time.

1:15:43 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.

1:16:16 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/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.