OA609: Surprise Jan. 6 Hearing – Bombshells Within Smocking Guns Within More 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 609 and don't adjust that dial, that phone dial that you have. I'm Thomas. That's Andrew Torres. How are doing?

0:01:27 Andrew: I am fantastic, legitimately fantastic today. How are you doing?

0:01:32 Thomas: Oh, me too. We... You are releasing early this week, which. We don't normally do this. We moved heaven and earth to release early because we want to give people plenty of notice to join this fundraiser on Friday. You and I have just been working our asses off to get this going because we've got an exciting announcement.

0:01:52 Andrew: Yeah, let's jump into it. So we have spoken to you at some length over the past couple of months about the Opening Arguments Foundation. I am pleased to announce that we are going live this Friday with a fundraiser with our friends over at Cognitive Dissonance. I want to talk a little bit about the foundation and what our vision of the foundation is, and then specifically what Friday's fundraiser is going to be about. So, over at dissonancepod.com is the location, the live stream is going to start at 8 p.m. Eastern time, 5 p.m. California time, Pacific time.

Thomas, you and I came up with this vision for the Opening Arguments Foundation probably a couple of years ago, and it right? Required us to be in a position where we could make a substantial donation to make this happen, which we're going to do. And it involves combining legal, beginning with one, but then fund legal scholarships to law school for nontraditional students who need it, for people who share the values and the mission of opening arguments. And that is to increase the public understanding of the law, what we do on the show, to have respect for the rule of law, fundamental American principles.

0:03:13 Thomas: To actively Not give a shit about what Clarence Thomas thinks the founding fathers thought while they did... Maybe don't put that in the copy for the scholarship, um, or maybe Do I Don't, we'll

0:03:22 Andrew: OK, maybe we're to we're not we're gonna walk a line. We're going we're to talk the 501C3 stuff.

0:03:26 Thomas: Work it out Like With our Amicus brief, well, you Know, the combination of the two, I think will be the sweet spot, so

0:03:29 Andrew: Yes, I, that's possibly correct. But there's also real work to be done fighting the holding actions of this right wing activist Supreme Court. And last term was brutal. This term was a gut punch for all of us. And so that we have always said is bottom up grassroots activism. And right now, I think we all agree there's no grassroots activism more important than boots on the ground organizations that are delivering abortion services to patients who need it, who are in areas where laws have already sprung into effect or are about to. And we are vetting how, sort best to target the organizations that are doing the most good, whether that is a combination of organizations that are mailing Mifeprestone to pregnant patients, providing, right, medication abortions through the mail, whether whether that is organizations that are paying to drive people across state lines. We're looking at that. And the idea is we want to partner with those people who are truly boots on the ground helping folks out.

0:04:42 Thomas: Let me, brass tax it for People, we've done these fundraisers before, we raised about a bazillion dollars for Georgia elections, we might have, you listening here may have been the one that swung that, uh, election. And when we fundraise for Georgia, we we went on Dissonance Pod. We also did our own. We're probably going to do that again. And we had you donate at a link. So what happened then was we got thousands of you to send a small donation. And that was amazing. I can't, to this day, it's one of the greatest accomplishments of this show and of you guys and everything. Raised we so much for those elections. But in the, the end, all those small donations don't get to say anything to our elected officials about our values as a group here, because they just saw a bunch of individual donors.

0:05:27 Andrew: In supporting organizations on the ground, when we give our gift reflecting this community, all of our voices coming together, what comes with that with writing a five or a six-figure check is, oh, wow, you are really committed into this. How do we continue to earn that respect and that commitment and stay partners with you? It means being able to listen and direct being able to partner with those organizations at that level, to right, oh, this is not just 10,000 people who happened to donate to you a couple of bucks. This is one community speaking with one voice that has one set of principles upon which we're not going to compromise, helps us make sure that those organizations remain aligned with our values. And we're making all of this public. Our Right.

Value statement will be up there. It will be something if you're a show listener that you will find familiar. Right? It is the mission of the show. I just couldn't be happier, more excited to do something. I know our community, our larger community working with the cognitive dissonance folks, working with the Puzzle and Thunderstone folks, you have just answered the call again and again ways that never cease to amaze me and I

0:05:52 Thomas: Right.

0:06:46 Thomas: At Dissonancepod.com, we'll be on the live stream. It'll be a ton of fun. We're doing the competition again. Where we see which podcast can raise the most money. And your donation link this time, instead of being something we have no influence over, your donation length this time is oafund.org.

0:07:04 Thomas: OAfund.org, that's where you're gonna go. And I wanna say this, and I wanna make this extremely clear. For this drive, drive, this is to try to help the people who really, really need it right now. Now, for this fun drive that we're doing on Friday, 100% of your contribution is, is Going to boots on the ground organizations delivering abortion services that have been vetted by us as a group and by our organization to make sure the money is going into places where it will really help, 100%. I know we're talking about what the goals of the OA Foundation is, and that's because we're super excited about it.

Now, what you can also do and what we hope you will do on Friday on OAfund.org is, is you will also have an option to invest a buck to in the OA Foundation itself and the things we're trying to do with that are what Andrew already talked about. The scholarship. I'm so excited for that idea. That is an idea. I'm sorry, Andrew. I got to take credit for this.

It is one of my favorite ideas I've ever had because we're going to really make someone's school dreams come true. And hopefully we can do it with a lot potential of students. Of fun. I'm so excited for that.

0:08:07 Thomas: So you will have the option to make a donation to the OA Foundation itself. And we hope you will. We absolutely do. But we also recognize maybe you don't give a shit about that right now. Maybe you just want to help the people who need it right now, 1 million percent we are behind you. So 100% of your donation at oafund.org for this fundraiser is going to boots on the ground that are helping people get access to abortions. I just want to make this 1 billion percent clear. Our biggest goal, we like being perfectly, oh, can that be an official OA Foundation tagline?

0:08:42 Andrew: Yeah.

0:08:42 Thomas: We like being perfect. Perfectly clear. That's our mission with this thing. Hey

0:08:44 Andrew: And We But right now, you you and I have worked an extra full-time job, and, and we'll continue to do that over the course of the year, and, our other Tom Curry from Cognitive Dissonance has been incredibly active in this, other folks behind the scene. Not taking a dime for that. And you will be able to match that up and you will able to look. We will post our 990s. And we are, by the way, let's be clear, we're a progressive organization, but we are abiding by the standards of 26 U.S.C. 501c3. That is, we will not engage in propaganda. We will not engaged in lobbying on behalf of or in support of particular legislation. And, we'll not engage political electioneering on, on behalf of or in support, in support of or an opposition to any political candidate. If we do that, right, uh, we will follow best practices, that is Start a parallel action group, right, that's what, like, Planned Parenthood Action, there would be a 501 c4

0:09:37 Thomas: So, for anyone ears glazed over for some of that, here's the bottom line. Attention, listen to this part. Friday, 9.30 Eastern, 6.30 Pacific time. That's our time slot on dissonancepod.com for the live stream for the fundraiser and the place you're going to donate. This will all be there for you at the time, but the place you're gonna donate is oafund.org and help us beat the competition. Help us raise the most money to aid and abet abortion. I'm happy to aid in a bet abortion. Can't, I I've talked to my lawyer and I think this is fine, right? We're not all going to be arrested for this, Andrew.

0:10:08 Andrew: Probably not.

0:10:10 Thomas: Talk to your Andrews and figure out. So anyway that's what it is. That's where to go we're super excited. We can't wait to help some people uh

0:10:18 Andrew: And we know this is a short turnaround. Things are just moving so quickly. We are trying to be as responsive as we can and get out there. If you are someone who the great fortune to be one of our high-level donors in the past, and you'd like to be a matching donor for Friday's episode, please let us know. Send us an email. You can send it to theshow openarguments@gmail.com. I'm going to read out my personal email here. It's not hard to find anyway.

Andrew.Torres@gmail.com. T-O-R-R-E-Z. You, drop me a note and say, hey, I'd like to match X dollars in this particular fundraiser. Or you'd like the money, separately to the Opening Arguments Foundation, that's fine. We know we have folks who are philanthropists who are fortunate to be in a position where they can be big donors, and Every dollar obviously helps, to the extent that you'd like to be a part of that, and we can announce that, we can maybe incentivize some additional folks into giving. Uh, I think that would be fantastic, and the way to do that is just shoot me an email or send it over to the show, and put in the subject line, you know, matching gift. And again, remember, for the game portion, we go off at 9:30 p.m. Eastern, 6:30 p.m. Pacific, and can't wait to see you there.

0:11:37 Thomas: And another reason I'm fantastic, Andrew, is because I've been interviewed. I put out the call to our patrons and to some other people to some interviews. And by interview, I mean, they just talked and I listened because what the overturn of Roe means to them, about their experience with abortion, about what's going to happen to them. Whatever they wanted to say, I, and it was the most compelling thing I've ever ever done, Andrew. And I cannot wait. I ended up with four hours of interviews and it's going to take me some time to work with that, but I cannot wait to play that for everybody. I'm figuring out what to do with it. It's, it really good, Andrew, and I want to thank everybody who participated, and it is going to take me sometime, but that will be part of future OA, maybe future SIO. There's so much good stuff. Wow. I was blown away. But on with the show, I cannot wait to hear Andrew's breakdown of this hearing.

0:12:27 Clip: Treason is treason.

0:12:32 Thomas: Andrew, we got a surprise witness, each more surprising than the last, uh, wow, how cool was this, this was after we recorded last, it was announced that there was a surprise hearing, and there's a lot of speculation about who the witness was, turned out to be somebody we had already seen in the video depositions, Cassidy Hutchinson, I cannot wait to hear your breakdown. This seemed huge to me. This seemed like bombshell after smoking gun after bombshell.

0:12:57 Andrew: Agree with that as a top line assessment. And in particular, if you're going to veer off from your schedule, We've pushed right? All our hearings back into July and we mentioned right last week that we thought that made sense. Some of this analysis came out in the Law'd fantastic hearing, Law'd great hearing. That you've got it again, remember, you need us you to hook you up with that, send us an. Email. We know a guy. We said, yeah, seems like a good idea. Let's take a break. It seemed like a great idea when on Friday, the Dobbs decision came down.

0:13:29 Andrew: And and, there's ton a of despair. The committee decided to hold an emergency hearing yesterday and then announced. Right. Then people were thinking, oh, did you get Pat Cipollone? Did you get Mike Pence? Is it going to be a blockbuster, you Know, superstar witness? And then it's, Mark Meadows you is assistant like this. This is somebody who's seen before. If that's who you're going to stop the presses for, then it better be good. And tell you, Thomas,

0:13:16 Thomas: Yep. Yeah well,

0:13:57 Andrew: It was good.

0:13:58 Thomas: Yeah I mean on paper I guess you're like, yeah, 25-year-old assistant of somebody, but she was in all the effing rooms, everybody. She was in the room. She Was in every room. It doesn't matter if there was like a, you know, a doorman or something. You'd like, what? A doorman? That can't be your star witness. Well, what if he was in every single room and could tell you everything that happened? That would be a pretty good witness.

0:14:15 Andrew: It she she is the Forrest Gump of this administration. Absolutely. One hundred percent. So and on top of that, you might recall at the end of our law grade hearing, I said in that wrap up that in looking to the July hearings, the areas where if I may, if I'm steel botting are, you chicken shit prosecutors to use Larry Lessig's phrase. What right am I still worried about? What right do I still need the committee to show me via evidence that will get me over the line where I'm willing to charge Donald Trump with one of these top line felonies, right? 371, 15 12 C, or 23 84? Yeah, okay.

0:14:21 Thomas: Yeah.

0:14:59 Thomas: 865309. Yeah, all that. I agree.

0:15:00 Andrew: Exactly. Right, and I said there are really two areas that are are underdeveloped at this point. The first is there's been a lot of, well, I told the president X, but there hasn't been very much in the way of, and he said Y? There's been a lot, well, he'd have to be willfully blind to have everyone around him saying over and over again, this argument is stupid. But there wasn't anybody who testified that said, yeah, and the president finally agreed with me that this was a stupid argument. So number one, one, there wasn't a lot of what did Trump actually say or do? And number two, that notwithstanding, I thought the good documentary evidence that was introduced in the first hearing, you could still, it was a challenge, I believe, more evidence needed to be developed to connect up the president of the United States with the violence being conducted by the Oath Keepers and the Proud Boys at the Capitol. Two areas, I think, addition to additional testimony, were where Hutchinson really shored up the January 6th committee's case. And

0:16:06 Thomas: What I did want to ask, Is there a statute that's like conspiring to apply catch up to a government wall? And then if that's true, she was a star witness for that. I mean, yeah,

0:16:12 Andrew: Yes, yeah. Defacing the the White House fireplace. So I think, and we're going to go through the specific testimony, really shorn up a lot in those areas. I also think one of the things that you and I were talking about in the law'd great hearing is evaluating. Yeah, Richard Donahue was going to be the star witness, and he came up again in this. All right. He's just everywhere. But different witnesses can be effective in different ways. Cassidy Hutchinson was meek and terrified and young, and so part of what they did right was had, and I, this is a little bit corny, but I thought when Benny Thompson kind of had that computer graphic that showed, you know, where her office was, right, and it's like, oh yeah, no, no, she's sitting right basically in between the chief of staff and the president while they yell at each other.

0:16:41 Thomas: Yeah.

0:17:07 Thomas: I wish there would have been a 3D rendition of like the trajectory of the catch up plate and all that. That would have Been, you know, that next next hearing. I'm sure they can get the ballistics.

0:17:15 Andrew: Yeah, we'll get James Cameron on that right away. Yeah. Industrial light and magic can put that together for us. Trump world has already I have I had to shower after worlds, but I have already done that.

0:17:24 Thomas: Oh, he wasn't happy. He was on uh truth Social. The thriving uh competitor to Twitter, yeah.

0:17:31 Andrew: Swiping right or doing whatever you do on Truth Social. They are out to discredit her as a gopher and a nothing burger. And also she's lying, right? Because, you know, here is proof of how, you know, you couldn't possibly lunge forward in the beast, the big SUV that was used to transport the president, except that, you know, right on their graphic, it says the president can control that little windshield that prevents you from, you know, getting into the front seat. So we I, know what they're going to do. Look, And what idiots do on Twitter is is usually not reflective, necessarily reflective of your legal strategy, except when from when when your client is the idiot. And Right. So we we know that if Trump is indicted and Cassidy Hutchinson is called as a witness against him that, you know, they will try and portray her as, you you know, just as somebody who fetched coffee and was out of the loop.

0:18:25 Andrew: And so you preempt that and you show, oh, no, like she is the loop, right? She's the person that all the requests got funneled through because she's the person doing the work for the president's chief of staff. And the president's Chief of Staff is the contact point when you want to disseminate something out to of the president. So yeah, I think that's gonna be, that's not, that's not a problem. And then, right, with all of these witnesses, you just have to ask what's their motive for lying, right? Why, why would she say this, if if it weren't true? There isn't a, when you're evaluating a witness, witness who is reticent and just kind of look at that, and they have to ask, all right, does this seem like a horrible, vindictive monster? For example, swap me out with Cassidy Hutchinson. If I was giving her exact same testimony, I would be a much less credible witness, right? Because I have an ideological point of view.

I have ax to grind, right, it would be super easy to impeach me and to say, can't, why would Andrew Torres lie here? Well, because he wants to bring down Donald Trump. You can't fill in that blank with Cassidy Hutchinson. So that makes her an effective witness in a different way. The right exact opposite demeanor wise from a Richard

0:18:31 Thomas: Yeah. Yep.

0:19:42 Andrew: Donahue, uh, but I think somebody who can be effective. Again, knocking it out of the park. If you want to queue up, this is 1750.

0:19:47 Thomas: Lordy, there are tapes, I love it when we've got clips, Andrew, that's my favorite.

0:19:52 Clip: On January 2nd, four days before the attack on our Capitol, President Trump's lead lawyer, Mr. Giuliani, was meeting with White House Chief of Staff Mark Meadows and others. Ms. Hutchinson, do you remember Mr. Giuliani meeting with Mr. Meadows on January 2nd, 2021? I do. He met with Mr. Meadows in the evening of January 2nd, 2021. And we understand that you walked Mr. Giuliani out of the White House that night. And he talks to you about January 6th, what you remember him saying. As Mr. Giuliani and I were walking to his vehicles that evening, he looked at me and said something to the effect of, cast, are you excited for the sixth? It's going to be a great day." I remember looking at him, saying, "Rudy, could you explain what's, what's happening on the six?" He had responded something to the effect of, "We're going to the Capitol, it's going to be great, the president's going to be there, he's going to look powerful, he's, he's going to be with the members, he's going to be with the senators. Talk to the chief about it, talk to the chief about it, he knows about it."

0:20:56 Andrew: That's this is question one out of Liz Cheney's mouth. Establishes that on January 2nd, Rudy Giuliani told Cassidy Hutchinson. Yeah, we got this.

0:21:09 Andrew: Winky face, winky face. But maybe talk to your boss about it. Would you prosecute a case based on just that statement? Hell no, right? But as you were compiling cumulative evidence that the person who we established in the last hearing had the soul, the drunken idiot who had the sole ear of the president, then goes off to the chief, chief of staff and his support staff, and is like, yeah man, January 6th is going to be amazing, it's up to jurors to draw the inference. I know where my inference would be drawn on that.

0:21:40 Thomas: Oh.

0:21:40 Andrew: So right, establishing a direct link, and again this is an indirect link, but establishing a very very short chain to the president with foreknowledge that the events of January 6th were going to happen, is part of how you build the background picture of this conspiracy. Um, then I think we did kind of one better in terms of the connection with the Oath Keepers and the Proud Boys, this is to illustrate the link to of violence, so 2257, I

0:22:10 Clip: The screen, you will see an email received by Acting Deputy Attorney General Donahue on January 4th from the National Security Division of the Department of Justice. Mr. Donahue testified in our hearings last week. The email identifies apparent planning by those coming to Washington on January 6th to quote, "occupy federal buildings" and discussions of quote, "invading the Capitol building." Here's what Mr. Donahue said to us. We knew that if you have tens of thousands of very upset people showing up in Washington D.C., that there was potential for violence. U.S. Secret Service was looking at similar information and watching the planned demonstrations. In fact, their intelligence division sent several emails to White House personnel like Deputy Chief of Staff Tony Ornato and the head of the President's Protective Detail, Robert Engel, including certain materials listing events like those on the screen.

0:23:06 Clip: The White House continued to receive updates about planned demonstrations, including information regarding the Proud Boys organizing and planning to attend events on January 6th. Although Ms. Hutchinson has no detailed knowledge of any planning involving the Proud Boys for January 6th, she did note this. I recall hearing the word Oathkeeper and hearing the word Proud Boys closer to the planning of the January 6th rally when Mr. Giuliani would be around.

0:23:35 Andrew: Things there. Number one, again, man is just everywhere. Isn't he

0:23:38 Thomas: Okay This guy, best witness of all time. I imagine there were conversation like someone would call somebody and then he'd like bump in. "The front, uh, hello, uh, Donny, you here? I just, I want to be a a really good witness. Can I sit in on this conversation?" "Oh yeah, sure." He's everywhere.

0:23:51 Andrew: And the second part of that is, again, that Hutchinson's connection here is through Giuliani. And, right, so one of the cumulative effects of her testimony here yesterday, I think, was to solidify that kind of pipeline of, hey, you heard how Giuliani has the ear of the president, how he's the one feeding the nonsense. And, or yesterday, what we heard was how Giuliano was also the one coordinating with the violent elements. Right? So you can believe that Rudy Giuliani acted alone, and I, but you know, that that is always the risk when you're talking about, you know, prosecuting a mob boss, and you would have to ask yourself, does does it make sense? You, you know, I'm thinking of the, you, the Simpsons trial where they put Bart Simpson as the head of the Springfield Mafia. Right? Like, I is Rudy Giuliano really the head of this criminal conspiracy? I mean, you, you know, we report, you decide.

0:24:48 Thomas: Would like to enter into evidence this picture of Thomas's background during the Q and A's of Four Seasons Total Landscaping. I think that speaks for itself.

0:24:55 Andrew: Or how about this one of him melting yeah a little bit more in terms of the violence, uh, we learned about intelligence reports, uh, that these protesters showing up would be armed. This is 2706.

0:24:57 Thomas: Yeah.

0:25:10 Clip: You, and you also described a brief meeting between Mr. Ornato and Mr. Meadows on the potential for violence. The meeting was on January 4th, they were talking about the potential for violence on January 6th. Let's listen to a clip of that testimony. Mr. Ornato had talked to him about intelligence reports. I remember Mr. Arnotto coming in and saying that we had intel reports saying that there could potentially be violence on this, on the sixth. You also told us about reports of violence and weapons that the Secret Service were receiving on the night of January 5th and throughout the day on January 6th, is that correct? That's correct, there are reports that in Washington D.C. had arrested several people with firearms or ammunition following a separate pro-Trump rally in Freedom Plaza on the evening of January 5th. Are those some of the reports that you recall hearing about? They are.

0:26:06 Andrew: Multiple sources here about that, that those advisers closest to the president, right, including those approximately right physically closest to the president had multiple independent credible reports, people being arrested all before January 6. You can't say, you we thought this was going to be a peaceful protest, you knew these folks were showing up with combat gear already. The right wing of sphere, I, to, I want to get to this next bit because it, knocking down a Marjorie Taylor Green is, you know, super easy. The right-wing of sphere has said, "Oh yeah, you, you were just saying people were there with AR-15s because you want gun control. Prove to me anybody, anybody was there with an AR-15." Yep.

0:26:14 Thomas: God.

0:26:46 Andrew: So how about we go to 2858, this is the Capitol Police, this is live foot, what was then live footage on January 6th of the Capital Police responding to threats. 2858.

0:27:00 Clip: Near

0:27:00 Thomas: So I guess what we should hear in this clip, I'm about to play, Andrew, is no guns anywhere, everybody completely peaceful, we're not worried at all because this is nothing. Let's see if that's what they said, yeah.

0:27:09 Andrew: Am a little bit worried about Antifa though, so yeah

0:27:11 Thomas: Oh I, Antifa thugs. Oh, I saw someone putting on a disguise, guys. Yeah. Let's see.

0:27:17 Clip: The Select Committee has learned about reports from outside the magnetometers and has obtained police radio transmissions identifying individuals with firearms, including AR-15s, near the Ellipse on the morning of January 6th. Let's listen.

0:27:36 Clip: In a tree, give me a white male, about 50 feet tall, 10 bills, brown cowboy boots. He's got blue jeans and a blue jean jacket, and underneath the blue jacket, the complainants both saw stock with AR-15. He's be with the group of individuals, about five to eight, five to uh eight other individuals, who's in that group at the base of the tree near the border, bodies, we're wearing green fatigues. Green, all dressed up, about 5'8, 5'9, skinny, skinny white males, brown cowboy boots. They had Glock-style pistols in their waistband. 87-36 with the message, that subject, weapon on his right hip. Copy that, he's in the tree.

0:28:22 Clip: Motor 1, make sure BPD knows they have an elevated threat in the tree, south side of Constitution Avenue. Look for the Don't Tread on Me flag, American flag face mask, cowboy boots, weapon on the right side hip. We've got three men walking down the street in fatigues carrying AR-15s, copied at 4 feet for independence.

0:28:44 Thomas: I chuckled because this is exactly the same as if, I don't know, me and Eli were just improvising what we would think the people there would be. Yeah, it's a thin blue line. Don't tread on me truck nuts with an AR-15 and a cowboy, but white, white male, white, male, white male climbing a tree for some reason. Thick cowboy boo. Yeah it's just okay. That's exactly what I thought it would be.

0:29:06 Andrew: Yeah I know, all undercover Antifa, um, and and there you go. So if you have an Uncle Frank saying that, you know, this is Alex Jones, uh, they're they're using the, that's the Capital Police, man, like those are your people, so. Uh, so we've we've kind of strengthened the link to violence. Uh, I continue to believe, and and I I don't want to build it up so much, you could make the criminal case without Pat Cipollone. The way in which witnesses have testified, the way in which the January 6th Committee has phrased their questions, leads me to believe that they are very close to having some kind of a cooperation agreement with Pat Cippolone, right, right? The president's lawyer. And you hear him as routinely the voice of reason and being portrayed that way.

0:29:24 Thomas: Yeah.

0:29:49 Thomas: Interesting.

0:30:01 Thomas: Huh.

0:30:01 Andrew: And I don't think you would put so much on him if you weren't about to get him. We'll see.

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0:31:45 Andrew: But just because of how good the food is, I'll say it. Oink, oink. I'm just so happy I got moinked.

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0:33:35 Andrew: This is 47-24. Really hard to discredit this, but it'd be kind of nice if this were coming out of Pat Cipollone's mouth instead of, you Cassidy Hutchinson's.

0:33:43 Clip: And he agreed with the Secret Service that it shouldn't happen. Ms. Hutchinson, did you have any conversations with Pat Cipollone about his concerns about the president going to the Capitol on January 6th? On January 3rd, Mr. Cipollone had approached me, knowing that Mark had raised the prospect of going up to the Capitol on January 6th. Mr. Cipollone and I had a brief private conversation where he said to me, we need to make sure that this doesn't happen. This would be legally a terrible idea for us. We have serious legal concerns if we go up to the Capitol that day. And he then urged me to continue relaying that to Mr. Meadows, because it's my understanding that Mr. Cipollone thought that Mr. Meadows was indeed pushing this along with the president.

0:33:45 Thomas: No offense to Cassidy.

0:34:36 Andrew: It is hard, I I keep trying to steel bot, uh, the, you know, hypothetical, uh, chicken shit prosecutor, and you know, how do you say, well, you know, they're gonna pick apart our witness that way, that that's tough one.

0:34:52 Thomas: Well, how about I offer this, Andrew? I know people listening probably saw this and would love to get your reaction. I think it was House GOP account on Twitter said, that's all hearsay. Pathetic.

0:35:07 Thomas: This hearing, the entire hearing, Andrew, was all hearsay evidence. What say you to that that legal, finely worded legal opinion. Good luck.

0:35:15 Andrew: So number one, remember that a public hearing is about explaining the facts to the public, right? If Arlo comes up to you and says, uh, Mommy ate the cookies, not me, right, like that, that's hearsay, okay, uh, but you could go investigate and figure it out. You wouldn't just be like, Arlo, that's here say, and we don't deal with hearsay in this household, like. No like

0:35:39 Thomas: Get out of my house. You're in jail now.

0:35:41 Andrew: Hearsay is the, the idea is, in an adversarial system, ideally you would like to cross-examine the person who made the statement, but that doesn't mean that we think that all hearsay statements are inherently unreliable. And

0:35:58 Thomas: Well, can I asked you this again? And this is Law One-on-One stuff that I think we need to be reminded of from time to time. What if I am walking home from work and I pass by a shadowy alleyway, and I see two people making a drug deal or something, you, I mean, if I go testify or to what I heard, which was, I, I heard don jr. Say, give me the drug. And then I hear someone else say, man, you're killing me. I'm all out. Like he just, I I'll get some, I, okay. I have a little bit more here, but you're really taxing my mustache over here. You got to slow down. And dann jr said, nah, I can't, I just, I just, I gotta give me it right now into my nose, just directly apply it right now. If is that hearsay? I mean like what, what other evidence would you get if

0:35:59 Andrew: Yep. Right Right. Yep. So,

0:36:42 Thomas: You were doing the trial of the drug deal here?

0:36:43 Andrew: Yeah, Absolutely. So, if so, you were to testify as to that, that fits precisely into the category in which we think hearsay, which when you testify as to what was said, uh, is likely to be reliable, right? Like, you have no motive to lie other than your hatred of Don Jr. You right, made a second point that I didn't make, which is including observations are not hearsay, right, what, what you witnessed, right?

0:36:57 Thomas: Yeah. Yeah.

0:37:09 Andrew: How How You would, how you would describe what you observed is eyewitness testimony that's not hearsay at all. And there is a component of that, right? Like, I watched this person reach into his pocket and pull out $600. Well, that's not hearsay.

0:37:10 Thomas: It's... say. Ooh, not hearsay. I watched an adult, a throw a plate and catch up dripping down the floor. None of that was hearsay interesting. Good distinction there. I didn't think of that as a non-lawyer.

0:37:30 Andrew: Yep. Right. Yep, yeah. No, you made that. I didn't either. You made that distinction. And then the third point, which I think is kind of the nail in the coffin for this desperate argument, and I really thought you were going to quote the House GOP committee that was like, you know, reruns of I Love Lucy are also on it at One. On, please don't watch this, because no, whatever, but no, the third part is all of our law students listening to this episode, listening to the show, know that one of the things that is the hardest part of preparing for the multi-state bar exam is memorizing all the hearsay

0:37:36 Thomas: Sure. We'll say that.

0:37:50 Thomas: Oh my God. Yep.

0:38:09 Andrew: Exceptions, right? Because we have moved away from that rule that says, nope, up, sorry, bring the witness in himself. And it's like, well, OK, what if the witness is the defendant, right, and decides to take the fifth, at that point, they become an unavailable declarant.

0:38:20 Thomas: Is a badger. Yeah. Right.

0:38:25 Andrew: And guess what? One of the exceptions to the hearsay rule is statement against interest. So when you say, you the president said, I don't care about that. I think Mike Pence deserves it.

0:38:26 Thomas: Right. Would

0:38:42 Andrew: I Interest, that is a classic example of where hearsay testimony is perfectly admissible at trial, and to exclude it would, you know, Not only Make, yeah.

0:38:52 Thomas: Be idiotic. I mean, what if take take my example of the drug deal in the alley? What if prosecutors were like, well, unless you get the criminals to testify that they did it, then sorry, no can do. Everything else is hearsay. Well,

0:38:54 Andrew: Yeah. Yeah.

0:39:06 Andrew: It, I would Love to see some polling, but I, but just can't believe, because, you know, look, you asked me what my view on it is. I mean, you know, I've been crusading against Donald Trump for six years now. Right.

0:39:16 Thomas: If your idiot Uncle Frank asks this, everybody, why don't you tell them, hey, remember Watergate? What was all that? If not hearsay, like what? It's the same thing. And I got to ask you, Andrew, did anybody associated with this investigation and this committee plead the fifth? Is that something that happened?

0:39:21 Andrew: Yeah. Yeah, that they've reminded us of over and over again. Yeah I haven't I haven'T shown those clips because it

0:39:38 Thomas: Yeah. It's pretty repetitive. It's just a guy saying fifth, fifth, sixth.

0:39:41 Andrew: Yeah Michael Flynn. Yeah it Morgan messaged me in the middle of that and it's like, boy, our amicus brief in the Michael Flynn case is aging like a fine wine, which I appreciated. Appreciated. Um, so that that is just uh desperation. I have to think that if you are uh the average person and you've watched this, that you know it's it's not hard to draw judgment. Um, let's get to some of the specifics. You've flagged them in advance. How about 55 58.

0:39:47 Thomas: Oh, my God.

0:40:11 Clip: Let's turn now to what happened in the president's vehicle when the Secret Service told him he would not be going to the Capitol after his speech. First, here is the president's motorcade leaving the Ellipse after his speech on January 6th.

0:40:24 Thomas: This doesn't really work on a podcast. It's footage of a motorcade.

0:40:28 Andrew: Sorry.

0:40:28 Clip: When you returned to the White House in the motorcade after the President's speech, where did you go? When I returned to the White House, I walked upstairs towards the Chief of Staff's office and I noticed Mr. Ornato lingering outside of the office. Once we had made eye contact, he quickly waved me to go into his office, which was just across the hall from mine. When I went in, he shut the door and I noticed Bobby Angle, who is the head of Mr. Trump's security detail, sitting in a chair looking somewhat discombobulated and a little lost. I looked at Tony and he had said, did you effing hear what happened in the Beast? I said, no Tony, I just got back. What happened? Tony proceeded to tell me that when the president got in the Beast, he was under the impression from Mr.

0:41:15 Clip: Meadows that the off-the-record movement to the Capitol was still possible and likely to happen, but that Bobby had more information. So once the president had gotten into the vehicle with Bobby, he thought that they were going up to the Capitol. And when Bobby had relayed to him, we're not, you don't have the assets to do it, it's not secure, we're going back to the West Wing, the president had very strong, a very angry response to that. Tony described him as being irate.

0:41:48 Clip: The president said something to the effect of, I'm the effing president, take me up to the Capitol now. To which Bobby responded, sir we have to go back to the West Wing. The president reached up towards the front of the vehicle to grab at the steering wheel.

0:42:08 Clip: Mr. Engel grabbed his arm, said sir you need to take your hand off the steering wheel. We're going back to the West Wing. We're not going to the Capitol. Mr. Trump then used his free hand to lunge towards Bobby Engel and when Mr. Ornato had recounted this story to me, he had motioned towards his clavicles.

0:42:28 Andrew: Yeah, I think hashtag grab grabbing by the clavicle is now trending.

0:42:31 Thomas: Yeah. Yeah. Also, somebody whipped up an amazing drawing in record time that I'm sure you saw of just Trump's tiny hands on the neck of a Secret Service agent. I don't know how they did that because that is impressive artwork. I kind of want that framed in my house somehow.

0:42:48 Andrew: Why don't we combine this. Go ahead and fast forward to 1:02 30. I

0:42:51 Thomas: Oh, is it my favorite one?

0:42:55 Clip: So Mark went down to the dining room, came back to the office a few minutes later. After Mark had returned, I left the office and went down to the dining room and I noticed that the door was propped open and the valet was inside the dining changing the tablecloth off of the dining room table. He motioned for me to come in and then pointed towards the front of the room near the fireplace mantel and the TV where I first noticed there was ketchup dripping down the wall and there's a shattered porcelain plate on the floor. The valet had articulated that the president was extremely angry at the Attorney General's AP interview and had thrown his lunch against the wall, was causing them to have to clean up, so I grabbed a towel and started wiping the catch-up off the wall to help the valet out. And he said something to the effect of, he's really ticked off about this. I would stay clear of him for right now. He's really, really ticked off about this right now. Let

0:44:00 Andrew: I like how the efforts to discredit this in Republican circles right now are like, really, you think that the uh chief assistant to Mark Meadows was down there scrubbing ketchup off the walls, like that's not her job. And it's like, uh, this is just an own goal on yourself, that like you would never deign to help the help clean something up, but like uh normal people when they see a big mess and like someone who, it's nobody's job, nobody's job is professional ketchup wiper to the president

0:44:00 Thomas: God. Yeah right nobody's job I don't think anybody's resume in the White House. Now, I make clear, when we hire you, I just want to make absolutely clear, this one of your duties is cleaning condiments off the walls. It's in, it's the top line actually on the statement. No, it's no one's job, you're totally right. And of course, any adult uh with an ounce of compassion for humans would see another adult person having to clean up after an adult baby's tantrum be, and have some sympathy. I mean, I would like

0:44:58 Andrew: Of course, so yeah, I I like that bit of discrediting look

0:45:01 Thomas: I just love the image that when the Biden's checked into the white house, there's just red stains on every wall, just ketchup, stain, mustard, stain, just different condiments and

0:45:11 Andrew: So I'm going to skip over the 120 uh time stamp. I'll refer people, it's an hour 20 minutes and seven seconds in, that's when uh Roger Stone, Roger Stone, and Michael Flynn are connected up to the Proud Boys and the Oath Keepers. That's an important link to keep in mind. Remember, the Oath Keepers were either the Oath Keepers, the Proud Boys, I can't keep these cosplaying idiots straight. But one but of them were, you know, hired as Roger Stone's bodyguards on January 5th. And, you know, these again are folks with uh demonstrable access to the president that the president's relying on. Um, then we we have uh I'm going to summarize a couple more, um, the uh Hutchinson's testimony, that that that Pat Cipollone tried to intervene at two o'clock.

Right, this is where they're surging into the Capital now, right, and Meadows, her boss, says, look, the president doesn't want to do anything. That's that's not great testimony. The the White House Chief of Staff said, yeah, the president's watching this, he's aware, you want him to intervene, he doesn't wants to to do everything. And then we get to, I wanted to keep this moment because this has uh been circulating around

0:45:29 Thomas: Yeah

0:46:20 Andrew: It's not individually evidence of every, of anything. But think about it in combination with the last two clips that I summarized. This is one thirty two twenty two.

0:46:28 Clip: Me pause here on this point. As rioters chanted hang Mike Pence, the President of the United States, Donald Trump, said that quote, Mike deserves it, and that those rioters were not doing anything wrong. This is a sentiment that he has expressed at other times as well. In an interview with ABC News correspondent Jonathan Karl, President Trump was asked about the supporters chanting hang Mike Pence last year. Instead of condemning them, the former president defended them, because it's it's common sense, it's common sense that you're supposed to protect. How can you, if you know a vote is fraudulent, right, how can you pass on a fraudulent vote to Congress.

0:47:18 Clip: Trump's view that the rioters were not doing anything wrong, and that quote, Mike deserved it, helps us to understand why the president did not ask the rioters to leave the Capitol for multiple hours. In fact, he put this tweet out at 2:24 p.m.

0:47:36 Andrew: It's on the screen. This isthe tweet that says Mike Pence didn't have the courage to do what should have been done to protect our country and our Constitution. Blah, blah, blah. USA demands the truth. This is and I remember when the news coverage switched to this this tweet while I was watching storm the Capitol, break down the barricades, charge forward with flagpoles being used like spears. It was a horrifying moment. And then and then and then to see the president say, yeah, well, you know, it's all Mike Pence's fault was just, you know, a punch in the gut.

0:47:52 Thomas: Boy What A Day Unbelievable

0:48:13 Andrew: Yeah, I want to point out this is another thing prosecutors are very good at doing, putting right, together a timeline, bringing together all of the disparate elements. So maybe, you that the 2/24 tweet, maybe it wasn't as big a punch to the gut as you as as it was to me, but when you say, when you combine that with the testimony you just heard, right, multiple people saying, you know, the the I heard my boss tell me that the president doesn't want to do anything and then as proof of that, four minutes later, he doesn't, you know, he didn't do anything, it's really hard to impeach that testimony, you know.

0:48:13 Thomas: Yeah I Mean

0:48:48 Andrew: Oh, well. Obviously. He cared, right.

0:48:49 Thomas: We're In Yeah Yeah We're In Austin Powers Territory At That Point It's It's not my penis us in larger like

0:48:53 Andrew: Right. And then, uh, I'm gonna skip over the moment, but really, uh, smartly, uh, they play this, is at 1:40, about about minute 140, uh, and 40 seconds, where they dovetail, uh, Hutchinson's testimony with Ivanka's testimony, right, and again, it's just one of those things that helps show that the interlocking story you're telling is is true, right, you you cannot use other witnesses to impeach, in fact they corroborate.

There is also a lengthy segment, and and let's talk about this in another episode, on January 7th, this was the lead-up, well, I'm calling this the cover speech, right, in which, uh, Donald Trump came out and, you know, condemned the violence from the day before and think the committee did a fantastic job of showing the pressure from all sources, from Sean Hannity, of all people, that says, if you don't come out and condemn this violence and make a public statement, then we're going to get the entire cabinet and we're to invoke the 25th Amendment and we're going to remove you from office for the next two weeks, um, if you had told me that in January, I would have said, January of 2021, I would have said, yeah, I don't think so, right.

0:49:40 Thomas: Yeah well it is incredible how how successful republicans have been at normalizing this even sean hannity when this happened because it was so outrageous it wasso disgraceful what happened on january 6th sean effing hannady said said no like the too much don't do you you can't do this he

0:50:08 Andrew: Yeah. Yep. Yeah.

0:50:29 Andrew: Well. Laura. Ingram. The coked up Donald Trump Jr, I right.

0:50:34 Thomas: Was like oh I just got back from an alleyway what's going on that would

0:50:37 Andrew: Um, so I think the idea that, uh, that threat was real, I have dismissed that from the very beginning, but if you tell the story of Richard Donahue and the threat to get the entire DOJ to resign, finally convincing Trump not to name Jeff Clark as Attorney General, all of a sudden the the idea, the, that the entirety of the president's staff got together and said, hey, we've talked to the cabinet and to they're invoke the 25th Amendment and remove you from office if you don't do X, all of a sudden, that seems really, really plausible to me. So I just want to end with this is one fifty two oh nine is about a minute and a half. This is the aftermath of that January 7th cover speech of, you sure, I condemn the violence.

0:51:08 Thomas: Effective yeah yeah

0:51:25 Clip: Even then, on January 7th, 2021, the day after the attack on the US Capitol, the president still could not bring himself to say, quote, "But this election is now over." One other point about the speech, Miss Hutchinson, did you hear that Mr. Trump at one point wanted to add language about pardoning those who took part in the January 6 riot? I did hear that, and I understand that mr that Mr. Meadows was encouraging that language as well. Thank you. And here's what you told us previously about that. You said he was instructed not to include it. Who was instructing him not to include language about the pardon in that January 7th? I understood from White House Counsel's office coming into our office that morning that they didn't think that it was a good idea to include that in the speech. That being Pat Cipollone?

0:52:11 Clip: That's correct. And Eric Hirschman? Ms. Hutchinson, did Rudy Giuliani ever suggest that he was interested in receiving a presidential pardon related to January 6th? He did. Ms. Hutchinson, did White House Chief of Staff Mark Meadows ever indicate that he was interested in receiving a presidential pardon related to January 6th? Ms. Meadows did seek that pardon yes ma'am

0:52:37 Andrew: So not a bad place to end our, uh, discussion of the Tuesday hearing, uh, by the January 6th committee. Very hard, not a lot of filler, you know, we, we, Played, I think, 40 minutes of it here for you. Effective, uh, terrified witness testifying about things that it is plausible that she observed, observed. We've the run through the counter arguments, um, the testimony is unequivocal. You are there, right? Did anybody ask for it? Yeah. Rudy Giuliani. What about Mark Meadows? I, I watched him make that up, right?

0:52:49 Thomas: Yeah

0:53:11 Andrew: Like this was basically what she said. I

0:53:11 Thomas: But andrew we didn't even get you have to say a word about I just remembered you mentioned terrified witness I don't know if I'd say terrified but whatever um the witness tampering efforts that they showed on the screen

0:53:25 Andrew: I've got kind of a separate breakdown just because I wanted to match up those witness, this tampering with 1512C. But, but we have talked about that, and when, right, I went over the 1512C allegations, I told you that that's 18 U.S. Code 1512. That is the witness tampering statute. And so the question is, do Donald Trump's activities fit within kind of the broader context, text of, and, and here's, you know, what this makes a felony, this is again, fined or imprisoned not more than 20 years, right, whoever Corruptly alters, alters, destroys, mutulates, or conceales a record, document, or other object, or attempts to do so with the intent to impair the object's integrity or availability for use in an official proceeding, or otherwise obstructs, influences, or impedes any official proceeding or attempts to do so.

And we could now add on to that that maybe, uh, we certainly seem to have evidence for those around Donald Trump for a, a 1512D, which is whoever intentionally harasses another person and thereby delay, that that's all you have to prove, intent to harass, and the consequence of that is that you have hindered, delayed, prevented, or dissuaded any person from attending or testifying, an official

0:54:02 Thomas: Well

0:54:51 Andrew: Proceeding, reporting to a law enforcement officer or judge, uh, arresting or seeking the arrest of another person, or causing a criminal prosecution or parole or probation revocation proceeding to be sought or instituted, or assisting in such prosecution proceeding, obviously that one's not gonna hit, but, but was, um, there active and ongoing evidence of, of, uh, witness tampering, um, did it rise to and, and that's all you need, now that's a, that's a three-year offense, um, yeah, think I, you have, I was initially looking only at the 18 USC 371 and the 18 UFC 2384 offenses. But I absolutely have added this witness tampering section onto the list.

0:55:32 Thomas: Mean wow those those statements were like hey just a reminder we saw your uh testifying today just a reminder um the president reads transcript what does that even mean by the way could he get the transcripts before we have the transcript how's he reading the transcripts

0:55:33 Andrew: Yeah. The the president reads these transcripts. Yeah, absolutely. Yeah. No, no, they're not that. That is that is a lie in addition to everything else. Yeah. Believe me, if we could get the transcripts, I would have the transcript.

0:55:50 Thomas: Oh it's a lie oh wow Wow. Yeah, that's what I was wondering. I was like, how is he getting is that because of the president still gets access to stuff, you know, even after they're gone. But no.

0:56:05 Andrew: No.

0:56:05 Thomas: OK, so this seems, I know I said this during a lot of great hearings, Andrew. I mean, there's clear as Kushner, but this is like the clearest of clearest of Kushner. I mean, this is, look at that message. Look at those messages they posted. I mean, I imagine what you could do is you have to get who said the message and then they could be like, "No, I just did that myself." You know, but are they gonna do that? Does that make any sense?

0:56:26 Andrew: Some point. Right. Whenever you are looking for is, is John Eastman going to be the fall guy? Right. Is it all going to get pinned on somebody? Not Trump. The question is, is the House of Cards going to tumble? Have you you pulled I'm going through different analogies but but the but analogies are apt in the sense that what you're doing is swinging various witnesses to your side right are they going to get pat cipollone they it they seems to me like they are right they already have richard donahue you know they already have again shaken loose and gotten definitive testimony somebody from Ivanka right from from the president's son like at these some point you know the prosecutor can come to you and say all right you know you can continue to be the last holdout and you can think that this is going to stay in place but you the room man you know take a take a look around and not a not whole lot of you know it's going to to be you and rudy giuliani left standing here and uh you know maybe john eastman

0:57:23 Thomas: And Do You really want to be standing next to Rudy Giuliani I wouldn't exactly All

0:57:24 Andrew: Uh the idea standing in between rudy guiliani and john easton is yeah I cannot imagine a place on earth I would least rather be so

0:57:33 Clip: And thank you, Let's go!

0:57:35 Thomas: And now it's time to thank our new patrons, Andrew. And we've got a lot of new patrons. Yeah. We've got to of patrons to thank. Let's try to read these. We got, we signed a contract with ourselves and our patrons that we would always do this. This might take a minute, but maybe we can do radio announcer fast talk, but we need to name each and every one of these brilliant people who Signed on on to patreon.com/law. Hope you enjoyed all the goodies. Take it away, Andrew.

0:57:40 Andrew: A couple absolutely yeah thank you to spherical cow wow Stoy Johanna Clark An attorney, not YOUR attorney love that Cycloneblaze Dustin K Crap I've gottathink ofsomething clever it's not incest porn it's.... Ryan Paull Steven Buss Charles Loupee this field intentionally left blank Lydia maybe not that Lydia Filthylucca Jess Holly Kennedy Laurel H. Mike Lapinsky Ryan Rutley Krista Park Jessie I want to get off Justice Thomas's Wild Ride yeah you and me both Zachary Bratton Tamara Woodcock Benjamin Ficker Jared Sexton Charles K David Hogue Bobby of the Eastwood Unlocking Her of Worlds Ryan Smith Gregory Priest Colleen Martin Alan Fluck Michael McKee D Jonathan Fail Brett Senders John Gesse Nicole Dagonat that nine-fingered lesbian hey we love everyone here no matter how how many fingers you have Carlos Gutierrez Robin Brown Michael Mitchell Poncho man randy savage I think that's a world series

0:58:03 Thomas: Nope.

0:58:22 Thomas: Oh

0:59:08 Andrew: Of poker reference but Meenage Tutant Needle Teedles Dr Toby Pool Time with Swim Allen Call me at 1-800-18UsC when there's an oil spill oh outstanding jeff clark reference Ignominiously anonymous Jonathan Bringewatt switchfencer Darren G Cop Rock couldn't make me a patron but Lawed Great Hearings sure did oh wow the Travelers' Warden Anna Kramer Tax the church, fix inflation, no representation without taxation, Justin Tang, James Ruelas, Andrew Sienkiewicz, Purple-Mett, and Anne W Doss. Take it away, Thomas.

0:59:33 Thomas: Wow High Praise, wow That's the most successful lightning round you've ever done. Nicely done, Andrew. Thank you to Claire Bear, Mike Graves, Mark Roberts, Hawke, Carrie White, Matthew Shaltes, Celia Here for the Lawd Great Hearings, Elliot Kroo, Anna Brunson, Richard Alexander Hubbard, Anomaly Peterkin, Vote Twice a Year, Every Year, Paverick Nicolas, Kyle Bade, Jonathan Kizer, MegaTrain, not a Transformers reference.

1:00:14 Thomas: ALJK8, Bas van Ginkel, Callum, Jared Bradley, Antonio Pierce, Michael Gulla. Platner wrote, Christopher Bell, Rebecca, Gareth Reece. I got my local paper to print. Gaslighting, and all you get is this lousy dollar. Peter Harris, John Otto, Graham Elliott, Brenny's Music, Laurie Artz, Mr. Wilt, Patrick Summers, William Yeske, starting a conspiracy theory that Gavin Newsom has metal bones, GavinNewsomMetalBonesTruth, okay, AdvocateOfDeath Ian Robertson, Morning Twozie, Naomi Atkinson, Mitchell Murphy, Darrell McGrath, Tom Paris did nothing wrong, Jessamy Els, Sydney Troost, Bill Jefferson, Elisa Graybill, SquishyBish.

1:01:23 Andrew: What was that Gavin Newsom metal bones site? I want to go there.

1:01:34 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:01:40 Thomas: Now it's time for T3BE. Uh, let's see, um, if I can answer what the law used to be. All right, here we, we go?

1:01:49 Andrew: By the way you you cracked the joke but no uh joke is too good for this current supreme court the The Council of Bar Examiners has announced that students, prospective lawyers sitting for the bar exam this summer, that they should answer the constitutional law section, not counting the 2022 Supreme Court term. This right wing activist Supreme Court has broken the bar example. So

1:02:07 Thomas: Oh my God. That's wow. That is unreal. Do you think anything like that's ever happened before?

1:02:20 Andrew: I not not to my knowledge.

1:02:22 Thomas: Wow. Hey, law students, go ahead and answer this as though the entire Supreme Court session didn't happen. Wow. Okay. Well, I'll do that too.

1:02:32 Andrew: Thomas, a city enacted an ordinance banning all flyers consisting of wholly commercial advertisements on utility poles on public sidewalks. The reason for the ordinance was to prevent litter on public streets and sidewalks. However, the city continued to allow other kinds of flyers to be displayed on utility polls on public sidewalks. As a result of the ordinance ordinance, approximately 50 of the 500 flyers were removed from the utility polls since they consisted of wholly commercial advertisements. Is the ordinance constitutional? A, Yes, because it is commercial speech and subject to a lesser scrutiny than other kinds of speech. B, yes because prohibiting litter is a substantial government interest and the ordinance is necessary to effectuate that interest. C, no, because prohibitting litter is not a compelling government from an interest, or D, no because there is not a reasonable fit between the law and the outcome desired by the city. All

1:03:04 Thomas: Interesting.

1:03:28 Thomas: That's a hard hard question. This strikes me as very difficult. Okay. First reaction was essentially a like commercial speech is usually, you know, we can regulate commercial speech a little more than other kinds of speech. Where I'm leaning. But as I work through it, I am not not sure what I'm going to go with. Okay. So the reason is to prevent litter. So they say, all right, we want to prevent glitter. We're not going to cut all flyers. We are just going to say no commercial flyers seems reasonable to me be like, yeah, I mean, if it's like your dog is lost We see that as like more inherently valuable, you than commercial bullcrap.

1:04:14 Thomas: And so we're going to let that go, but we're not going to like commercial stuff. I don't know if legally that's OK. It seems OK to my moral code, but I don't No. And then it says 50 to 500 flyers are removed. Is the ordinance constitutional? Okay. A, yes, because it is commercial speech and subject to a lesser scrutiny than other kinds of speech. That's definitely going to be in my second chance, but I'm not sure I fully love it. There's something about it don't like, and I'm Not sure what it is. My brain is telling me it's not quite a fit, but that I could just just be wrong. B, yes, because prohibiting litter is a substantial government interest and the ordinance is necessary to effectuate this interest. I don't like that at all. I think not B, a substantial governmental interest.

1:05:00 Thomas: Yeah, I don't know. And the ordinance also, it' a little bit weird. Like, we don' ve the information on the percentages here. Like what if 1% of the litter was caused by commercial stuff and 99% was not commercial? It seems like going be weird to be like, yep, we have to do this to prevent litter. You doesn't, but it doesn't give us that information. I mean, it does say 50 to 500 flyers. Oh, Oh, I misread that. Oh. Okay. Hold on. I thought it said 50 to five. I don't know why I thought that 50 of the 500 flyers, so that's 10%. Oh, little bit. This is only 10%. So this strikes me as not remotely, uh, the right justification here. If 10% of it is commercial speech and you're like, yep, got to prevent litter. Well, okay. 90% of the crap is still there. That doesn't make sense. So I'd definitely not be, I could still be A, possibly, definitely not B.

1:05:48 Thomas: C, no, because prohibiting litter is not a compelling government interest. No way on C. Or D, no because there's not a reasonable fit between the law and the outcome desired by the city. I think I'm going to go with D. I I think I'm between D and A. I could get totally ruined again like I did last week with this, but it's definitely D and A, RNA or DNA, one or the other. No, it's between D&A and I am going with D because I just don't think there's a reasonable fit at all. And it kind of, you know, this reminds me of something. I think we've talked about this, either this case or something that used this reasoning because this sounds real familiar to me and I can't wait for Andrew to break down the answer and say, "Yes, Thomas, we talked about this case in episode blah, blah, blah." We'll see. So that's my answer, D, final answer.

1:06:34 Andrew: Right, 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 guess, your reasons therefore. We will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:06:46 Thomas: And that's our show. Thanks so much for listening. What a doozy of a show. Make sure to catch us on the live stream, raise some money to for aid and abet abortion, dissonancepod.com. Friday, Our slot is 8.30 Eastern, 5.30 Pacific, and you know, tune into the whole thing, but only donate during our time, our half hour, because we want to beat everybody else. And that donation link is oafund.org. And we are so excited to get that going. Thank you so much for all the support. We can't wait to try to do some good and try to help some people. By the way, aid and abet some people getting abortions. Can't wait. We'll see you then.

1:07:04 Andrew: Yeah. Absolutely.

1:07:21 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:07:55 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.