OA611: Cipollone to Testify! Andrew Called It! Here's What To Expect.

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 611. I'm Thomas. That's Andrew. How are you doing?

0:01:24 Andrew: I am fantastic, Thomas. How are you?

0:01:27 Thomas: I am fantastic as well because we are together at last. However, we are not in the same room because I value audio quality over friendship. So, I wish

0:01:37 Andrew: Indeed, that that describes you to a tee.

0:01:42 Thomas: I were joking. Sorry, I'm not. But you know what? The people in my life, I hope, accept me for how I am.

0:01:49 Andrew: The show is better because of it. So there we go.

0:01:52 Thomas: In honor of James Kahn, who apparently just died. Just got the notification on my phone. Andrew has gone to the mattresses or whatever they say in them. What do they say?

0:01:54 Andrew: Ah, yeah, Yeah, got go to the mattress, right? Yeah.

0:02:01 Thomas: Yeah. Fun podcasting tip. If you have no fancy setup, stick a mattress in front of you. Helps with the echo a little bit, as you can probably hear. All right, enough about that. I'm so excited for today. Uh, we're having a great time here with the puzzle and the thunderstorms crew, but the uh show must go on. Andrew, we we get to record together here and we get to talk about one of the largest... Andrew was rights, that I can remember. You were calling the entire time that we've been watching these hearings, you pretty much from day one, I think. Hearing one, almost, you were saying, I think they're trying to get Cipollone or Cipolone. I don't know how he pronounces it, but one of the two pronunciations, Cipallone.

0:02:37 Andrew: Patsy, Patsie Bologna, if Meryl Markle was to be believed.

0:02:42 Thomas: You're like, I think they're trying to get him. I think I think they're going to said over and over. And I I wasn't sure what to make of it. You know, I don't have enough information in my head because I'm not an expert to know if that was a, you how probable that was. But oh, my God, did you nail it? I can't believe how well you nailed that. And so I think right now the listeners are probably just here. I'm going play the Andrew was right music the whole show just under the entire thing. The whole time will be the Andrew was right song.

0:03:06 Andrew: Well, I thought that the testimony of Cassidy Hutchinson, if anything, was going to push Pat Cipollone over the line to testify and cooperate with the January 6th committee, it would be her testimony. Simone. She was asked by Liz Cheney, we know White House counsel Pat Cipollone was concerned about the legal implications of the president taking a trip down Pennsylvania Avenue to the Capitol. And he agreed with the Secret Service 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? Cassidy Hutchinson says, on January 3rd, Mr. Cipollone had approached me knowing that Mark, her boss Mark Meadows, had raised the prospect of going up to the Capitol on January 6th.

0:03:52 Andrew: Mr. Cipollone and I had a brief conversation where he said to me, "We need to make sure this doesn't happen. This would be legally a terrible idea for us, where we have serious legal concerns if we go up to the Capitol that day." And then he urged me to continue relaying that to Mr. Meadows, because it's my understanding that Mr. Cipollone, and I keep alternating between these two pronunciations, as well, so there we go. Thought that Mr. Meadows was indeed pushing this, right, her boss, along with the president. Okay, and I could read more, but but that's sort of the dynamic, right? You have White House counsel going to the chief of staff's head staffer and saying, "Your your boss is out of his gourd. What can we do to make sure that he..." He doesn't do legally a bad thing for us. And by the way, I'm the lawyer. And obviously her testimony was moving. You heard the coercion attempts that were made against the president, her.

0:04:16 Thomas: Yeah. Oh

0:04:54 Andrew: Provided her with a lawyer and said, well, you know, I mean, I'll not say and you just got to do us a favor. But, you know, the president reads those transcripts, right, which is the very obvious threat of, yeah, your lawyer is actually a spy for us. And the reason we have access to sealed transcripts is because you as the witness get to review them and so does your lawyer. And they might just happen to wind their way into the possession of the president who, you Know, likes to read these things to make sure you're staying loyal. You how gross. And love the fact that Cipollone has now decided to cooperate. I want to break down all of what that means.

0:04:54 Thomas: God.

0:05:32 Thomas: Well, first let me ask you this though. I, you've explained a little bit of it, but for the lay people and for the me, can you answer both a, why you think this happened and why you were able to predict it and be what you think the committee did and, you know, Liz Cheney and others to that helped this goal. Like what are the ways that they might've gone about this, that ultimately achieved this goal of getting him to be a witness.

0:05:33 Andrew: Yeah, yeah, yeah.

0:06:00 Andrew: Yeah, great, great questions. So the first part, again, remember, there are not a lot of people that we have crowned with the adjective "hero" in this situation, right? Right. I went out of my way to tell you just how much a monster Steve Engel was before we discussed the significance of his testimony. Right. This is not somebody who's a good guy. All the approbation that that is being lauded on Mike Pence. Right. Like Mike Pence is a monster to this day. He could be here cooperating with the January 6th committee and he's not.

0:06:34 Thomas: Oh, here on our trip? Oh, sweet. No, I'm just kidding. I wouldn't actually, he would ruin our trip. I don't want Mike Pence on it.

0:06:35 Andrew: Yeah. Uh, No, I mean, well, You know, he, he couldn't be alone in a room with you know, half the people who are here, uh,

0:06:42 Thomas: That's true. That must get really cumbersome. Like just walking back and forth. Like we're playing a game in this room. He walks in. Ah, my wife isn't here. Mother, mother, you need to follow me to this room Yeah, that would be. Yeah, nevermind.

0:06:52 Andrew: Uh, yeah, No, but Yeah.

0:06:55 Thomas: Let's not invite him.

0:06:56 Andrew: Could be cooperating with the January 6th Committee. He's not because he's still pussyfooting around with the, with the group of idiots that wanted him dead. Bad you want to say about Mike Pence, I'm there. I'm with you on. And Cassidy, it. Hutchinson, as moving as her testimony was, let's remember, this is a 25-year-old in Trump world who wanted to work for Donald Trump in January of 2021. So I

0:06:59 Thomas: Because he's going to be president.

0:07:22 Thomas: Her, and we should give, I think, all people maybe in this day and age a little bit of grace. I think it would help our situation, but, you that she got into this job at the age of 22. Let's go ahead and not assign people as permanently evil for their entire lives for things they believe in 22. Signed a podcaster who used to be conservative. Like, that would be really nice if, you know, like, it would be good to be open and welcoming to people who are going to do better or might do better, trying to do better. So,

0:07:44 Andrew: Look, I think that that is a great plea for grace. So how does that tie into the second half of your question and what, and where Pat Cipollone falls sort of on the monster scale,

0:08:05 Thomas: Between Vecna and the Demogorgons,

0:08:07 Andrew: Right. He's Pat Cipollone succeeded Don McGahn as White House counsel, he, right? Was on Donald Trump's impeachment defense team. Wikipedia entry describes objectively as, quote, "During the Senate's impeachment trial, Cipollone misled Congress on a number of issues, including falsely claiming Republican congressional members were not allowed into the secure facility where classified information about the impeachment inquiry was being stored." You remember that. That was the skip, right? The skiff, right. And so this is not somebody we think of as good guy, not somebody who has been on our side, you know, being described as the cause of believing in justice and the rule of law from the very beginning. However, want I want to be 100 percent clear about this, because this is going to be the theme of the the beginning of this part of the of the show.

0:08:59 Andrew: Every piece of available evidence we have is that not only did Pat Cipollone commit zero crimes, right, but that committed nothing like there's no inference that he committed any crimes. And his role throughout this entire process was every time Donald Trump said, hey, well, you know, maybe I could launch Mike Pence into the sun and that would cause what? And Pat's going to be like, no, Mr. President, you cannot launch the vice president into the son.

0:09:07 Thomas: Yeah.

0:09:25 Thomas: There's this thing called orbital velocity. There is escape velocity. I

0:09:28 Andrew: Right. Yeah. And we're going to get into the nuts and bolts of this. But, as per the recurring Eli joke, when we want a system in which people are free to go to their lawyers and say, hey, if I put out an elaborate song which incentivizes people to murder a sitting Supreme Court justice, is that a crime? Right.

0:09:47 Thomas: Don't know why you thought of that example, but yeah, just purely hypothetical.

0:09:48 Andrew: Yeah. Right. Purely hypothetical example, not revealing any attorney claim privilege. And you want me to be able to say, yes, Eli, that would be a crime.

0:09:56 Thomas: Yes, definitely. Oh, I thought you were going say yes, absolutely do that. It's fine. We'll do the time.

0:10:00 Andrew: Time. And we're going to get into the specifics of that. Be clear. My reason for predicting that this would happen was looking at the evidence and looking at the way that evidence was being unrolled. And the way That evidence was Being unrolled was was the strongest witnesses that were testifying before the January 6th committee were testifying unequivocally. There's no that that Pat Cipollone was on their side, that from the very beginning he was a member of the group saying, "Yeah, these fraud claims are nonsense. Sense They're bogus, they're terrible. Yeah, the things you want to do in bringing in Jeff Clark to be attorney general, I would resign if you did that. Yeah, uh if you send out this letter to the states saying that the DOJ has found irregularities that they haven't found in the election, right, that would not be legal." And so as that's all being teed up, you realize that this is somebody who, who has committed zero crimes, has not even been subpoenaed by the committee.

0:11:17 Andrew: Right. So he hasn't even committed that crime of like having received a subpoENA from the January from 6th committee and ignored it. Right. No. Like they asked him to show up. And so far until now, he had not been willing to show up again. Let's think about the people who did show up right. Right. Like he could show up and say, I declined to answer and assert executive privilege to every single question. Right. And he there would be nothing you could do about that. So their role has always been kind of a supplicant role. Like, "Hey, we want you to show up. We know you have useful information because you were in the room while all of these things happened." Um, please. And it took until now for him to say, "All right, I'm gonna be there."

0:11:42 Thomas: Yeah, that is interesting.

0:12:02 Andrew: No.

0:12:03 Thomas: There There's a lot there because, for one, I imagine a lot of people, actually, I know for certain a lot of people listening, thought that the key was, ah, they've got something on him. Ah, he's committed to crime. They're going to give him a deal. But it sounds like not at all any of that.

0:12:12 Andrew: Not Not at all any of that. There is zero evidence that he has committed a crime. I can't come up with a theory whereby he's committed a prime. And, and I think among our listeners, and it's something that I want to tease out, that misimpression has probably come sort of from the whiplash of just how criminal John Eastman is, right? Because, you know, we said, look, it's totally obvious that these emails are crime fraud exception. I want to go over that and spend a little bit of time explaining just how narrow that crime fraud exemption is. So when I said I was convinced, and by the way, right on that one as well, not trying to pat myself on the back, But when I told people,

0:12:39 Thomas: No, no, do it. Here, I'll walk up to you. Hold on. I'm going to pat you on the back.

0:12:59 Andrew: I appreciate it, yeah.

0:13:01 Thomas: We'll cut. We'LL

0:13:04 Andrew: Oh, that was great. Was that confident about Eastman, it is not because it's easy to prove the crime fraud exception. It's very, very hard to prove a crime fraud exemption. It's just that John Eastman was a criminal fraud. Broad. Folks maybe got the wrong impression with respect to that. So don't I kind of go a little bit down that avenue, and then that'll help sort of back out to what I think Cipollone is doing. So remember, Pat Cipollone is counsel to the president, succeeded Don McGahn. He's not one of the president's personal lawyers, right? He'snot Rudy Giuliani. He's not Jay Sekulow. He's not Sidney Powell. This is a public executive branch taxpayer-funded gig? And the job is to advise the president of the legal consequences of doing his job, and specifically to answer things like ethical conflicts, when you have to make affirmative disclosures, when you can undertake political activities at taxpayer expense, dispense, conflicts of interest.

0:13:19 Thomas: Exceptional at crime and fraud.

0:14:11 Andrew: I already mentioned that, those sorts of things, And right? So let's go back to day one, right, clear as Kushner, okay? Let's assume that Pat Cipollone had been on the job and that the clear as Kushner questions had gone this way. Hey, Pat, Yeah, yeah, president talking, uh,

0:14:27 Thomas: Yep. Uh-huh. Pat, Chip, or Cipollone here, yes?

0:14:29 Andrew: Yeah. Uh, under the anti-nepotism law, is it legal for me to make Jared Kushner a senior White House advisor? Yeah?

0:14:38 Thomas: Absolutely not.

0:14:38 Andrew: Okay, but what if I do it anyway? What are the penalties? What can they do to me? And

0:14:43 Thomas: Nothing. Well, if enough Congressmen and women got up the courage of their convictions and united together across the aisle, they could impeach you, Mr. President. And then cut

0:14:53 Andrew: I'll Impeach Me then. I'm gonna effing

0:14:54 Thomas: Out 20 minutes of laughter and then so nothing? So nothing then?

0:14:55 Andrew: Yeah. Then I gotta Then I gonna eff and impeach me. Yeah, right, exactly.

0:14:58 Thomas: So so nothing. Yeah, exactly.

0:15:00 Andrew: That conversation, imagine we had that conversation. I want to tell you right now, A, I think that would be grounds to impeach Donald Trump, right? As I said at the time, that's what clear as Kushner means. But B, 100% of the conversation we just had would be legitimate, protected executive privilege. Asking, hey, if I do this thing, is it a crime? Crime. That's why his office exists.

0:15:18 Thomas: Yeah. Right.

0:15:27 Andrew: And telling you, here's the consequences of committing such crime is why his Office exists. That would be true for any lawyer at any point in time. It's true for me in capacity of advising my clients, right? I can tell you, yeah, that's illegal, and here's the penalty if you decide to do it anyway. At no point does any of that violate attorney-client privilege. At no point does that bring me in as part of a crime fraud exception.

0:15:55 Thomas: But what if I say, okay, I'm going to do that even though you told me it's illegal. Does that implicate you at all?

0:16:00 Andrew: Yeah. And let me explain. The answer to that question is it depends. OK. And the reason that it depends is that the crime fraud exemption, in addition to a common law privilege that goes back to 13th century Saxony, is cobbled together today from a couple of different places in the Model Rules of Professional Conduct. And yes, I'm oversimplifying. Don't at me, ethics lawyers here. I'm trying to answer the questions quickly. But it starts off with Rule 1.2a, which sets the baseline, which is, with the exception of a couple couple of things. A lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. Okay? So the client runs the show and they own the privilege.

0:16:48 Andrew: And that language is shall. No discretion. A lawyer must do that. And one of the things they must do is Rule 1.6a. 1.7 says a lawyer shall not reveal information related to the representation of a client unless the client gives informed consent or unless the disclosure is permitted by paragraph B. Okay, so again, mandatory language. You as a lawyer are ethically bound to keep your mouth shut and not tell anybody what your clients tell you unless Rule 1.6b kicks in, which says a lawyer may, so this is permissive, this is still not mandatory, reveal information related to the representation of a client to the extent that the lawyer reasonably believes it's necessary, either, one, to prevent reasonably certain death or substantial bodily harm, So that is, you're in my office, and you say, yeah, minute—so, no, reasonably certain death or essential bodily harm.

Okay? So when you say—yeah, and these are the classic yeah, as soon as I leave your office, oh, my wife hired a private investigator. As soon as I leave her office, Andrew, I am going home to murder her, right? That's what that provision means. And those are the times in which I may call the police to save your wife's life. I do not

0:17:47 Thomas: I'm gonna lead a crowd of Nazis to the Capitol.

0:18:18 Thomas: Sorry,

0:18:18 Andrew: Believe, having reviewed the cases, I may, I do Not have to at that point, right.

0:18:19 Thomas: You don't have to okay let's change that one even

0:18:24 Andrew: Yeah, I agree with that. This But is how narrow this exception is, I right? Have read a bunch of 1.6B cases because as soon as I saw subsection, that one, I thought, you and I don't think any of them would cover violent protest, right. I think there's enough uncertainty that you could not say it was reasonably certain that death or substantial bodily harm would ensue, right? You could say it was reasonably certain that property damage would ensrue, right, but I don't know that you can say it's reasonably certain that lives would have been lost or people would have severely maimed and injured that day. So So that's 1.6b1. 1.7b2, this is one the that is dead on, to prevent the client from committing a crime that to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services, okay?

OK, so, yeah, you've got to be connected in this way somehow. And by the way, I think that would fit. Right. Obstructing an official proceeding is under law considered to be damaging the intellectual property of the government. So so it does fit those standards. Remember, this is as you point out, this may provision, we go back to one point to D. This is the only mandatory disclosure provision, 1.2D. A lawyer shall not, and here are the two things that you shall not do. One, counsel a client to engage, or two, assist a client in conduct that the lawyer knows is criminal or fraudulent, OK, so that's it.

0:20:07 Andrew: If I know that you are committing a crime, I may not say, yeah, yeah, do that. And I may not help you do that. This is immediately followed by a but, right, which says, but the lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Right. So there's your super narrow crime fraud exception.

I have to know that it is criminal or fraudulent. So when I told you I was very, very confident that John Eastman had engaged in criminal fraudulent behavior, that's why. Because his conduct was so outrageous, not because it is so easy to get there. Okay, when you put all of that together, you get to the crime fraud exception when a client consults an attorney for advice that will serve them in the commission of a fraud or crime and the communications are sufficiently related to and were made in furtherance of that crime. And as far as I can tell, everything that was run through Cipollone um does not come close to to meeting those exceptions. He right? Was asked about bringing in Jeff Clark? Well, I think that'd be a disaster, right.

What about out the National, are you out of your mind? What about not delaying under the Electoral Count Act? No, I don't think we should do that. What about if I go down to the Capitol and, you know, just see how things are working out? No, no, don't do that. None of that conduct is or could ever be potentially criminal.

0:21:42 Thomas: If he will, he won't get it. No, don't stop, please. Yeah.

0:21:45 Andrew: Like that question. Again, notice the high level of burden that you have to show. Right? You have to show that the lawyer engaged, assisted, or counseled someone to engage in conduct that they knew to be criminal. High bar.

0:21:51 Thomas: Yeah, okay, so not so no crimes, we're not zero crimes, that makes sense, nothing that we know of.

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0:24:31 Andrew: Now, right, OK, I've given you this broad scope of executive privilege. You might be asking, OK. So what's to stop him from from just coming in and answering, I assert executive privilege for everything.

0:24:44 Thomas: Was that executive privilege? I thought that was just what applies to normal lawyers.

0:24:47 Andrew: Yeah, well, that is what applies to normal lawyers, but you layer on top of it now that their relationship is not just attorney-client, but also protecting.

0:24:59 Thomas: It's a sacred bond between two. Yeah, no. Okay. So I I guess. Then I'm wandering why now, you know, like if, if I'm, if I'm out there and I'm, uh, not necessarily a negatron, but you know I've, my I've heart's been broken before by, these proceedings and other person. Um, if I am out there, and I am a skeptical listener thinking like, okay, but he's really going to cooperate, if he's really going to be valuable to us, if the theory is that he's going to come in and be like, yes, he did it. I killed Ned Johnson or Trump whatever. Killed Ned Johnston. Then why wouldn't he have just done this before? They're not squeezing him. Why wouldn't he have already done a video deposition? Or why wasn't he among those that we already saw? Why now? And isn't that reason to be skeptical that he is going to helpful at all?

0:25:01 Andrew: Yeah, yeah, yeah.

0:25:12 Andrew: Me too, me too.

0:25:45 Andrew: I would offer as a plausible alternative hypothesis, this that this is somebody who remains again, like all, like many of the folks that we have described, right, these are not never Trumpers, these are hardcore inner circle Trump advocates and allies, right? Even Richard Donahue is somebody who was sent to the Senate to be confirmed by Donald Trump personally, so some of them have fallen faster and harder than others, right? Richard Donahue seems to be a pretty good example of someone who's pretty damn disillusioned at what he saw going on around him. Greg Jacob, another, right, career conservative politician, chief counsel to Mike Pence, and he's watching stuff go around him and be like, like, oh, wait, I didn't realize I was a member of the leopards ate my face party. And Right. So what do I think happened? I think Pat Cipollone was in the job for two and a half years working in the Oval Office with the president. And I think he liked the job. I think she liked Donald Trump. I think you doesn't like the members of the January 6th.

0:26:53 Thomas: It's a cush gig I just send a form letter that's like, no, Mr. President, that would obviously be illegal. It's just, it's his auto reply.

0:26:55 Andrew: Yeah. It's not it's not a hard job to do. Yeah. No, Mr. President, that's not legal. Yes, I'm aware you're going to do it anyway. No. But like, yeah. Just think it it took a while and it took the sort of moving testimony of, you look, here's a real face of somebody who really got hurt. And by the way, you know that this happened because this is somebody you tried in a moment of desperation to lean on as well, right? You went to Cassidy Hutchinson and said, hey, is there any way you can intervene with your boss so that this doesn't go horrible? So, yeah, I think we finally got to somebody that he cared

0:27:00 Thomas: Yeah. And also I, let's say under the theory that he was just gonna come and be a totally unhelpful turd he could well, or just, why bother, why can't, why do it at all?

0:27:47 Andrew: About in He could have done that already. Right.

0:27:52 Thomas: It seemed, it's hard to imagine him being like, I've seen all this, uh, and and now I feel compelled to go not help, to go, to but not help. You'd have to be pretty evil to do that. And maybe that's possible, but, oh

0:28:05 Andrew: He could be that evil. Again, as far as we know, he is sitting with the committee right now as we're recording this, right? So, you know, this isn't one of these where like, oh, they called next Tuesday's live hearings and Pat Cipollone is going to be on it. Of the January 6th committee are not idiots. And whatever documents he brings them before we get to seeing any of it. So I cannot come up with a downside for this. This is not somebody who's being squeezed. This is somebody who is being entreated and who has finally said he's going to show up. The worst case scenario is he shows up and he's not a great witness. But one of the things we've shown in dissecting the hearings at some length is that you don't know who's going be a great witness until you hear from them? And you here's somebody who, there are reasons to believe he could be a very, very good witness.

0:28:14 Thomas: Yeah, true, So yeah, what might he bring to the table, Andrew?

0:29:06 Andrew: Yeah. So first, again, for those people who are negatrons or who are skeptics, there will be areas in which privilege Cipollone uh legitimately invokes executive privilege, attorney client privilege, right? And we want him to do that, and he is not being obstructionist and not defending Trump. Again, if you ask him, so did the president ever come to you and ask for advice as to whether abrogating the Electoral Count Act was constitutional, he should say, "I, I declined to answer that on the grounds that it would require revealing attorney-client privilege." He should say that.

0:29:40 Thomas: Right. And that probably builds credibility too,

0:29:43 Andrew: Yeah, it absolutely does. So what things do not violate attorney-klient privilege? There's a lot, okay? So first, anything that is a strictly personal matter, Anything that is outside of a legal analysis at all is now not attorney- klient privileged. And so the entire strategic strategic discussion of replacing Jeff Rosen with Jeff Clark. Pat Cipollone was in that January 3rd conversation from beginning to end. The, yeah, if you replace that guy with that guy, a hundred of us at DOJ are going to walk out tomorrow. You'll be left with nobody.

0:29:43 Thomas: Because that's not like a legal decision.

0:30:23 Andrew: Yeah, that's not ask him for legal advice. That was asking.

0:30:23 Thomas: Oh, okay. It's like a strategy decision

0:30:26 Andrew: Yeah. That is exactly right. Strategic matters, personal matters. How will this reflect on your administration? All of that.

0:30:26 Thomas: Yeah. If You ever came in and was like, "Hey, Pat, do you think I should get my ties lengthened? They feel not long enough. Should I get a longer tie?"

0:30:41 Andrew: When I'm throwing a plate full of ketchup, you know, should I overhand it? Should I kind of like try and underhand it like I'm duck pin bowling? What do I Also, do? I love of this one, it does not apply. And these restrictions, by the way, these are Nixon-era court cases, right, relating to John Dean. How right? Much could John Dean talk about Watergate? Well, he could talk about Nixon's tape recordings, right?, because that was not an area where he was seeking legal advice. He knew that it was illegal to secretly record people in the White House. It did not apply to legislative proceedings in Congress against the president due to allegations of misconduct while in office. So that seems awfully close to me to be efforts made to undermine the January 6th committee, right? And it will be up to Pat Cipollone to decide, for example, if he has firsthand evidence of efforts to intimidate Cassidy Hutchinson or any other witness as to whether that is within the scope of his duties or not.

0:30:59 Thomas: Yeah. Right.

0:31:48 Andrew: That's an ambiguous area. It's a gray area. He may give us testimony in that area. Um, it doesn't apply to formal censures, impeachment proceedings, meetings, which we don't have. And that's why the president gets his own personal counsel in those cases. And again, Pat Cipollone, public-funded gig, which can make you your own shade of angry. So where was Cipollone? Well, Cipollone was absolutely everywhere from all of the documents that we have. So in his deposition before the January 6th committee, just the portions we have, Acting Attorney General Jeff Rosen mentions him twice. First, he mentions him, as we've talked about, in that January 3rd meeting to replace Rosen with Clark.

0:32:36 Andrew: Again, not privilege, political advice. Cipollone is one of those people who said there will be mass resignations if you replace Rosen with Clark. Donahue confirms this. Donohue tells us, and this is a related, this is the question of whether to send out that DOJ letter to Georgia and other states saying, yeah, we found massive election fraud, you know, that Clark was going going to sign his name onto. And Cipollone was the person who called that letter a murder-suicide pact. Something is not legitimate legal advice, there was no attorney-client privilege with respect to? It, So he can say, yeah, there Was this letter. It did not convey legitimate legal advice. I looked at it.

0:33:21 Andrew: I was not asked to render a legal opinion by the president. I was told that the president was going to put in place an attorney general who was going to issue this letter. Did you say anything publicly? Yeah, I told everybody who would listen to me that this letter is a murder-suicide pact. That's going to be, you testimony. And by the way, all of this is corroborated by extrinsic evidence. I actually went and searched. We had a report, you know, you and I sort of skipped over it at the time, January 22nd, because it almost, the way it was written kind of seemed to exonerate Trump. And it was talking about the internal efforts, folks had apparently leaked to the Post some of the details of that January 3rd meeting.

0:34:08 Andrew: Here's what the Washington Post said on January 22nd, quote, Clark conveyed that he felt fraud had impacted the election results. Then Clark began pressuring Rosen and others to do more on voter fraud, such as holding a news conference to announce that they were investigating serious allegations or taking particular steps in Georgia, though Rosen refused. At some point, Rosen was informed Clark would replace him, and he pushed for a meeting with Trump in person. This is the 1-3 meeting, At right? This meeting were Trump, Clark, Rosen, along with Richard Donahue, the acting deputy attorney general, Stephen A. Engel, the head of the Office of Legal Counsel, and Pat Cipollone, the White House counsel, the people familiar with the matter said. Said.

The people said Rosen, Donahue, Engel, and Cipollone pushed against the idea of replacing Rosen and warned of a mass resignation. So all of that corroborates their testimony. That's out there. I'll link to the article in the show notes. You can see that we knew three weeks later people were trying to leak it to the outside. It's part of just how valuable this January 6th commission is because you read that by itself and it's almost a pro-Trump, right? It is, oh yeah, look, Look, yeah, there was this one lunatic who was kind of rogue in the Trump administration. But, you know, the good, hardworking Trumpers were able to to hold him back. And the president ultimately decided not to. So, you Know, yay, the system works.

0:35:33 Thomas: We had one naysayer who was like, "No, this is illegal and a complete blunder and a terrible idea, and it's going to collapse our democracy." But we silenced that person and triumphed.

0:35:40 Andrew: Yeah. Yeah. And the last line before that of the article is Pat Cipollone pretty much saved Rosen's job that day, said one senior Trump White House official. So OK, again, you've got the folks in the room. This adds another voice who was in the room who will be able to corroborate that testimony. And when you're thinking about how you prosecute somebody, I think everybody else who was In the room, you one misfortune. That's plausible, right? Like, you Know, when you get multiple interlocking, reinforcing testimony from witnesses that have no reason to lie, to corroborate one another, that's pretty persuasive with the jury. What about that letter, right? Well, that letter to send to the state, that's not legal advice, so he can testify as to that.

0:36:30 Andrew: He can also testify, and this is another area that comes out in the Rosen deposition, that he was consistently Instantly, one of the people telling the president that these claims were that the claims of voter fraud were nonsense. And Right. So, again, we're not talking about evaluating the legal implications. We're talking about, you over and over again. Again, Pat Cipollone was in the room when Trump would say, well, see, they're they're digging votes out of a suitcase. And, you know, Rosen says, no, that's just the box that they keep the votes in. Yeah, but then they're feeding them into a machine. Right. Because that's what counts the votes. But they're doing it without any people watching them. Well, sir, you're watching them right now. Right.

0:36:49 Thomas: Right. So

0:37:13 Andrew: You know,

0:37:13 Thomas: You're That seems huge to me. If we're getting testimony, and again, you know, you and I have gone back and forth on this, don't want to open that argument again, but in terms of the mens rea and the Trump's, you know, mindset and all that, if you get his personal attorney being like, "Yeah, I told him this was bullshit," that's it's pretty hard to be like, "Yeah, but did Trump really know it was bullshit?" Like, you come on, right?

0:37:36 Andrew: I agree with that. That is the willful blindness argument. When Right. Your White House counsel says to you, these claims are nonsense and they look the American people in the eye and say, yeah, I told the president these claims were nonsense every single day. Yes, absolutely. I think that that is the principal effect that this is going to have. The cumulative weight of everybody around the president told him, you if you want to continue with this, fine, but what you the grownups think about this, right?

0:38:08 Thomas: This episode is brought to you by ZipRecruiter. I am excited to travel this summer. In fact, we are just about to leave to meet up with a Puzzle and a Thunderstorm crew, and I can't wait. It's one of most fun things that I get to do. And finally, Lydia gets to come with me for the first time. So we're super excited. Have ever thought about all the people that make vacation this truly great?

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0:39:41 Andrew: Here's how Rosen put it again in his deposition testimony, the segment from which we have a copy. Miss Cheney. And did Pat Cipollone ever tell you what he thought about the president's claims about election fraud? Rosen. So the way you've stated that, I'm not sure, because the way the conversations with him went more was that he was supportive of the department's position. You know, that the department should do what you think is right. I agree that the department should proceed the way you think best. I would be surprised if he didn't agree on the department's posture that there had not been widespread fraud. But I don't know if I can specifically remember that or not. But, have more of this big picture recollection that he was very supportive of the department and of me. And maybe, I'm not sure if he assumed or agreed or said he agreed.

0:40:30 Andrew: And then, Liz Cheney. And, then my last question in the meeting on the 3rd, did he speak out and say, I also will resign Rosen? Yes. I think Pat Cipollone recited that lots of people were going to resign and that it would include him. Pat Cepollone was one of the people who said there would be lots of resignations. So think about that and now think of how Pat CipOLLONE can fill in those details, Rosen right? Will not say CipOLONE said, yeah, these claims were nonsense, right.

He supported us. He's on board. His testimony is going to dovetail with he threatened to resign if you brought in Jeff Clark. But do I remember him telling me these claims are nonsense? I don't know that I remember that specifically. Well, now you get to fill that in, And right? So all of this is taking a potential prosecutor, right, you, who's throwing up objections. Well what if the defense raises this? What if, you know, what if they don't? And you say, okay, well now we're going to add one more witness to the list. Because right. The minute, by the way, that Cipollone agrees to give this testimony to the January 6th committee is the minute that he agrees to give that testimony, if subpoenaed, even if he's a hostile witness in any prosecution of Donald

0:41:12 Thomas: Right.

0:41:39 Andrew: Trump.

0:41:39 Thomas: Well, that's, I was going to ask you that, by the way, let's pretend that this all happens and results in some sort of criminal process. And I was wondering, like, if any number of these witnesses perhaps Perhaps we're like, well, I was willing to testify to Congress, but I'm not really willing to go, you know, try to put this guy in jail or for whatever reason, would, would they be able to use all this testimony in court if the, if the people who gave it were unwilling to go to court?

0:41:40 Andrew: Right.

0:42:07 Andrew: Absolutely correct. That is declarant, unavailable hearsay.

0:42:08 Thomas: Oh, nice. So that, that means whatever we're getting here, pretty much we're Getting in, in trial, no matter what.

0:42:15 Andrew: We're getting a trial. Yep.

0:42:18 Thomas: That's awesome. Okay. That seems huge.

0:42:19 Andrew: Exactly right. So, yeah, that's that. That's a real part of the game. I also uncovered the transcripts of both Rosen's and Donahue's testimony before the Senate Judiciary Committee in August of 2021. And it confirms, yeah, I link it in the show notes. Will not explain how I got there. This dovetails with a lot of what we know, but I learned a lot lot of very interesting things in reading these deposition transcripts. It helps give a little more character. So I'm going to read again from Jeff Rosen's August 2021. So this is a couple of months before his testimony to the January 6th committee. Do I recall a meeting at the White House? Yes. I had lunch with Pat Cipollone, who was White House counsel, who is a longtime social social friend, as well as a one-time colleague. So Rosen and Cipollini worked together at some big law firm somewhere. So we met in December during the holidays.

0:42:41 Thomas: Senate. Oh, okay.

0:43:29 Andrew: But at that time, I did fill him in on something odd that was going on with Jeff Clark. And I told him a few of the things that we talked about, that Jeff Clark apparently is some kind of meeting with the president shortly before Christmas. And these proposals that he's making, I said, you know, no, this is odd. And I think it's then that I asked Pat Cipollone, are you aware that the head of the Civil Division, that's Jeff Clark, met with the President of the United States, and he was not? Question. And just so I am clear, this a one-on-one conversation between you and Pat Cippolone, or was it part of a meeting that also included Rich Donahue, Stephen Engel, Mark Meadows? Answer. I think what happened was part of, I think Pat Cilippolone and I had lunch. It was alone, or possibly Pat Philbin, his deputy chief, was someone I also knew for a long time.

0:44:15 Andrew: But there was a meeting subsequently scheduled for the same day that afternoon because Mr. Meadows, chief of staff Meadows wanted to talk to us about some oversight requests that Congress had been asking for. And at least as Mr. Medows communicated it, Attorney General Barr had said that the accommodation he worked out was done, but members of Congress representatives were contacting Mr. Mr. Meadows, and saying it's not resolved. So he wanted to have a discussion about what are you guys doing to address this. It kind of trails off. Think about the first part of the substance of that. Pat Cipollone's conversations with who are not his client are not attorney-client privileged.

0:44:50 Thomas: Right.

0:44:50 Andrew: Learning that he's good friends, or at least is social friends, is how Jeff Rosen describes it, with Rosen is pretty damn useful. I certainly didn't know that Rosen went to Pat Cipollone and was like, hey, man, this guy who's like an underling three spots under me and an environmental lawyer is meeting privately with the president? That seems weird to me.

0:45:14 Thomas: Yeah. Is there an oil spill I don't know about?

0:45:16 Andrew: Yeah, right. Like, that seems weird. That shouldn't be that way, right? Then CipOLLONE was like yeah, yeah, that does kind of seem weird. And then, you know, later there were multiple meetings. I like this one. This was, I thought, great color. Question. Okay. So when the president ultimately decided to reject sending the draft Clark letter and decided to keep you on as acting attorney general, that's the January 3rd meeting we now know, you went into this a little bit in the previous hour. The meeting adjourns. The decisions have been made. Everybody knows what needs to be done. Did you talk with Cipollone afterwards? I don't just mean immediately, maybe a day or two later, or it simply literally understood at that point the president made his decision there was nothing to talk about? Answer. So the meeting ended and we were heading out. Pat Cipollone invited Pat Philbin, that's his deputy, and Rich Donahue and me to just walk up to his office for a couple of minutes.

0:46:05 Andrew: I remember seeing Jeff Clark as we were leaving, and he said something odd like, "Can I join you," or "best wishes to all," or something like that. And then again, again, I love the dry humor here. And we did not invite him to join us. And he headed out. But then I spoke briefly afterwards to the two from White House counsel, that's Cipollone and Philbin, and Rich Donahue and me. And we all had the same thought, which is, "Well, this is now resolved.

It's done." And I think I did not get called by the president in the next few days. Question, when you say White House council, you mean Cipollone and Philbin, right? Answer, yes. Question, and there was a sense of relief among you that it was finally decided? Answer, I'm sorry, say it again. Question, there was a sense of relief among the four of you that it was finally decided. Answer, I suppose, I mean, we were pleased that the president had made what I regarded as the correct decision. Okay, even though, as I said, he opened the meeting by saying, "One thing we know is Jeff Rosen, leading the Justice Department, nothing is going to get done in trying to overturn the election." Question, sorry. Answer, I am

0:47:11 Andrew: Saying, of course, I was pleased because, because it's my position, I acknowledged that he, the president, had said early in that meeting, "One thing we know is you, Rosen, aren't going to do anything to overturn the election," end of quote. That seemed like pretty good information at all. And then I found this, and it reminded me of another area, and this is, if I'm going to move my chips all in on an area where I predict if we see Pat Cipollone's testimony publicly before the January 6th committee, here's where I think it will be. Do you recall Donahue and Rosen talking about, and I made fun of this a little bit in our law grade hearing, the president getting an outside lawyer to draft up a complaint and deliver it over to the Department of Justice and is like, hey man, can you file this on our behalf, and it was like, "What the hell." And I surmise that it might have been Sydney

0:47:10 Thomas: Oh yeah. Sidney

0:48:10 Andrew: Powell who drafted this thing. I now know who drafted this thing. I, found this out 10 minutes before we started recording, so I will know more as this show is airing, but I'm sharing news that's breaking to us from an investigatory capacity. And, I've never seen anybody talk about it's a lawyer named Kurt Olsen, K-U-R-T-O-L-S-E-N. And here is the Senate testimony, the, I think, sealed Senate testimony that I've found access to, of what was asked of Jeff Rosen regarding this complaint. Question, are you aware of the draft complaint, United States of America versus the states of Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, and Nevada? The answer is, you, um, know there was a discussion about this, and while I was waiting, telling the president not to do it, Kurt Olsen calls again, outside lawyer.

0:48:10 Thomas: Powell. Yeah. Ooh.

0:49:03 Andrew: I don't remember how he got me. It was kind Of uh, you know the same thing he would leave messages Uh, but to my surprise he's super aggressive. He says the president wants you to file this brief by noon today I said, oh, yeah, he didn't tell me that. Olson says, I had sent you some of the authorities that show there is standing because I'm eliding over. There's multiple pages in which Kurt Olson keeps calling and he's like, you're the dumbest human being I've ever met. I'm not filing this thing. It's just crap. You don't have standing.

0:49:31 Thomas: Yeah. We talked about the standing

0:49:32 Andrew: Yeah, right.

0:49:32 Thomas: Is silly. Yeah, yeah.

0:49:34 Andrew: And I Yeah. Said, well, I're not discussing the substance of this with you. If the president has something he he wants, he and I will discuss it with him. You're no longer in this conversation.

0:49:43 Thomas: You don't work here.

0:49:44 Andrew: And he got sort of aggravated by that. He said, you're to force me to call the president and tell him that you're recalcitrant or whatever it is. And I said, this conversation's over. And so that told me, I think I challenged him on that. I said, how do I know you've ever spoken with the president, because you're saying it. He didn't like that. He said, I've told you who I represent, so I figured this needs to get called up to the president, I'm not talking to outsiders. I rejected further discussion with him.

0:49:54 Thomas: Yeah Yeah. Yeah.

0:50:13 Thomas: This is wow.

0:50:14 Andrew: To the, to the best of my recollection, that episode was the only time, and it's the last time I spoke to someone on the outside about these things. I tried not to engage, but I did make it, even a day, I think it's a proper thing to do. Although I did tell him, I told him, I, I will tell the president DOJ's position, not you. So at that point, I'm trying to sort out, did the president call me or did I call him? I think he called me, or maybe I called him. It was because I got a message that he wanted to talk to me. And what is the exact date for the record? This is Wednesday afternoon, the 30th of December. And I know I didn't initiate calls to the president to talk about election stuff, but it's possible I got word he wants to call you, or he wants to hear from you. You know, he's in Mar-a-Lago, be at this number at 3 o'clock, or something like that.

0:50:59 Andrew: I don't think that's very material, but I just can't say who actually placed the call, but I spoke to him that afternoon and I told him this idea of filing the Supreme Court case was a bad idea, doesn't work, the Department of Justice can't do it, and I had taken the outline that Steve Engel had given me. I didn't use it literally, I relied on it, but I sort of said there's five different reasons, and we talked about this from Engel's testimony on this lawsuit.

You don't have standing, and it still says guilty, and guilty is spelled wrong, and all of that. Which is why I think in the earlier conversation I had with your colleague about that meeting, I think the discussion about the Supreme Court brief had already been resolved. I can't say definitively if it came back the next day, I don't think so. I think it was resolved in that phone call. Things came up and we just said we're not doing it, and that was it.

Question: So the president, yet again, took your advice. Answer: Well, he accepted that the department's position was that we weren't going to do that. He didn't resist it or deliver an ultimatum or try to overrule us. And then I would add, until four days later, when he tried to bring in Jeff Clark to be attorney general, who presumably would have filed this thing. So, um, I saved the best for last. Um, a draft complaint that somebody else writes and sticks on the DOJ's desk and says, hey, will you file that, is also not attorney-client privilege.

0:52:17 Andrew: And not attorney work product because you didn't work on it. Right. So I think if there's going to be if I'm Liz Cheney, if I're looking at this guy, yes, you I'm some in ways, I'm going to portray him as the Forrest Gump of this process. He's in every meeting. He is there constantly. I'm going to get his testimony on the record. All of that is going to be great, like the first 40 minutes of the show. Then my wham, my hammer is going to be, did the president ever try and get somebody else, somebody from outside the the administration to draft a complaint to be filed in the Supreme Court to overturn the election. Yes, he did. Who was that? Kurt Olson.

0:52:17 Thomas: Yeah, yeah.

0:53:02 Andrew: What was that like? And the American public is going to hear, yeah,

0:53:07 Thomas: Who the hell is Kurt Olson would be my next question.

0:53:10 Andrew: Word for word, what this guy did. I have not heard of him before today. Day the American public will hear that the president went to yet another outside lawyer, this was a task too low for Sydney Powell, right, and something Rudy Giuliani wouldn't do. He had to find a different guy, and he found this guy, and this guy tried to pressure the acting attorney general into filing it, and the acting attorney general was like, who the hell even are you? Hug up on him, and then the president tried to replace him. You put all of that in order and those pieces, and you're telling a pretty compelling story from the intent perspective, right? Remembering that the backstop of all of this is willful blindness, is right?

0:53:58 Andrew: This somebody who just wants the result they want to get to and the legal reasoning be damned, yep.

0:54:04 Thomas: Yeah, you know, Andrew, I think I was getting ahead of myself. Is he just testifying behind closed doors? I think because of Cassidy Hutchinson I was, I was assuming it was another surprise witness, more surprising than the last. But do you have any idea if we're just getting behind closed-door testimony or if we'll get video or if he'll actually testify on TV? Do we know any of that?

0:54:27 Andrew: Now it is just closed door, and again, we will evaluate. I mean, what that, what the January 6th committee will do is evaluate how that testimony goes in terms of, uh, whether to, to put him on in front of the general public. Remember, Cassidy Hutchinson gave four separate detailed interviews, uh, with the committee before they, they put her up, and, uh, her position changed as she conveyed, hey, I think they're, they're trying to step on Me here.

0:54:40 Thomas: Mm-hmm. Yeah.

0:54:54 Thomas: So worst case is if he's a total dud, it's like, well, we just won't pursue this. We'll just kind of move on. Like worst case scenario. Okay. All right. Well, looking forward to that. Andrew, when's the next hearing? And this hasn't changed the hearing schedule itself, right? It's still, as far as we know, kind of how it was. Oh, can't wait.

0:55:01 Andrew: Yeah. Yeah.

0:55:12 Andrew: Next hearing, next Tuesday, July 12th, at 1 p.m. uh it's become uh you Know Must See TV so

0:55:19 Thomas: Absolutely. All right, well, looking forward to that. And since this was pretty much a celebration of how right you were, Andrew, we're going to throw in Andrew was wrong, just so it doesn't all go to your head, you know?

0:55:29 Andrew: Absolutely yeah no I loved getting this letter. This came from Amy Freed, who teaches political science at the University of Maine, who writes in to say, during your discussion of Carson versus Macon, that's the case on religion in Maine public schools, you suggested this mostly concerns students in very rural areas. I did. While it would apply to them, some of the school districts with no public high schools are not very rural. There are several in the Bangor area, and one is the Glenburn School District, which is the case where the plaintiffs come from. I don't know how well you know Maine. That's very generous of you.

0:56:08 Andrew: So I thought I'd mention that while Bangor only has about 33,000 residents, it is the third largest city of the state. That and centers the second largest metro area. I bet that most of the students who go to to the Bangor Christian School don't live in the real boonies. I have a friend who brought a house in Glenburn, which is basically a suburb of Bangor, so that her kid could get into a private high school for free, the prep school John Bapst, B-A-P-S-T, in Bangor. A pin in that for a second. Another school district nearby without a high school is the Vesey School District, located between Bangor and Orono. The University of Maine is in Orono, and Vesee has numerous professors, university staff, other professionals. They've had numerous free choices before this case, including John Bapst, Bangor High, Arono High, and Old Town High, none that far away. And then classic thank yous from Amy. The lesson here is, and boy, Andrew Seidel has driven this home time and time again,

0:56:06 Thomas: Not well. Yeah. Yeah, no

0:57:03 Andrew: Never believe the recitation of facts in any case involving church-state separation. That's all I read. I to pull that pin out because I wanted to look up this John Bapst school. From 1928 to 1980, John Baps was a Catholic school. In 1980, they shuttered their doors. They reopened later that year as John Bapst Memorial? A fact that they emphasize on their website, right, so not named after the guy, named to honor Hunter the guy, and that made them not just non-Catholic and non-sectarian, but entirely non-religious, right? Co-ed, independent, college prep school, routinely named the best school in Maine, the best high school in Maine. Reading off their mission statement located in Bangor, Maine, the third largest city in the state, John Vapst prepares students in grades 9 through 12 for college and university placement by offering challenging programs in academics, athletics, athletics, and the arts.

0:57:09 Thomas: Kidding.

0:57:58 Andrew: Accredited by the New England Association of Colleges and Schools, John Bapst is a member of National Association of Independent Schools, the Association of Boarding Schools, The Independent Schools Association of Northern New England, and the Maine Association of Independence Schools. John Bapst students and faculty have won four Siemens Awards for Advanced Placement in State Championships in everything from football, girls' tracks, to cyber defense and chess. The school is ranked number one in Maine by by the Washington Post, and has received a grade of A from the state of Maine. So lesson here is, while the Supreme Court was saying, you know, this is about these tiny rural areas, this is extending to the third largest city in the state of Maine, you had a system that was working just fine And by the way, would work just fine under the Andrew Seidel rule, John right?

0:58:46 Andrew: Bapst, no longer a Catholic school, has been non-religious for 40 years, and is the best damn school in the state. And so you could absolutely—I pushed back on Andrew a little bit, and I said, you know, you have to bite the bullet because, you know, maybe some of these kids in very rural areas, you aren't going to have access to a school if you deprive them of access to all religious schools. The better point seems to be, no, this looks more like a ploy to get on the same table as these actual schools, the nonsense Christian academies that we listed at some length in that episode. So more evidence that it's church-state school case, don't believe the facts.

0:59:20 Thomas: Yeah, the fact pattern is all lies. But yeah, geez.

0:59:33 Andrew: Yeah, that's a shame. So thank you so much for that clarification. My apologies for implying that, like, you know, seven people lived in Maine. I uh, I am

0:59:40 Thomas: Yeah, it's like nine.

0:59:42 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:59:48 Thomas: And now it's time for T3BE. Even though I'm on vacation, there's no vacation from the bar exam. So got to try again.

0:59:54 Andrew: Right, Thomas, a seller entered into a contract to convey Blackacre to a buyer. The contract stated that the closing was to occur, quote, "on May 1." The buyer was prepared to perform on May 1, but the seller was not. On June 1, the seller was ready to close on Blackacre. The buyer does not want to follow through, though, with the closing and claims the seller has breached the contract. Must the buyer follow through with the closing? A. Yes, unless the buyor can show the delay of closing cause the buyr to suffer undue harm. B. B, Yes, unless the contract or the circumstances indicate the time is of the essence. C. No, because the closing date is an express term of the contract that must be complied with exactly. Or D. No, because one month is not a reasonable time

1:00:00 Thomas: Black Acre. Hmm.

1:00:46 Thomas: Black

1:00:47 Andrew: After the initial closing date.

1:00:49 Thomas: Acre, again, did you see that tweet? Someone tagged us, me or somebody, in that, was like, "Hey," "Hey, if your buying or you're selling Black Acre, I'm gonna need you to timely file your deed of whatever." I don't know, it's just some random Black Acre reference. Convey.

1:01:03 Andrew: Love it.

1:01:03 Thomas: All right, so let's see. This seems tough, but seller is going to convey Black Acre to a buyer. So we're in real property or a house or something. I don't know, something like that. So he says, I'm going to sell this to you. Closing date, May 1st. The buyer was ready on May 1st, but the seller was not ready. And then June 1st, he's like, all right, I am ready now. And the buyer is like, hey, no, too late. Must the buyer follow through with the closing? Um, so, and just bursting into the scene is Eli Bosnick, he's coming, he's taking over, the okay time to answer this question with. What do think, it's talking to the mic. It's C. Okay, he says it's C, and his compelling reason is nothing. He's supposed to point it to the floor.

1:01:47 Thomas: He's always telling me I need to point the mic to the floor. I pointed the wrong way. No, you're talking to this end. Wait, Right, so Eli says C, so I'll just go with no, and I'm not going gonna go with C. See, kidding. This is a real exam. So this seems reasonable that if I, like, if I entered in contract to buy a house and then I get to the closing date and the seller is like, no, then I feel like, OK, I might move on and buy another house. You know, it seems weird to be like, oh, hey, now we're ready.

Although, I mean, maybe there's some procedure I need to take to get out of that contract. I don't know. Let's see. So must the buyer follow through? A, yes, unless the buyer can show the delay of closing caused the buyer to suffer undue harm. Okay, I could see that as a... So that would be like, oh, I got to show that I already bought a house, you know, and be like... No, I can't. Eh, maybe. B, yes, unless the contractor circumstances indicate that time is of the essence. I mean, that's possible.

1:02:41 Thomas: Maybe it's the kind of thing you need to account for. Like, I don't know. It seems like a closing date is a pretty solid contract term to begin with. It would be weird if it's like, you've got a closing day, but unless you specify the closing date is like, meh, doesn't really mean anything. So I'm pretty heavily leaning toward no. Let's see. See, no, because the closing date isn't express term of the contract that must be complied with exactly. Oh, I like that. D no, because one month is not a reasonable time after the initial closing date. Okay. So that's, so D would work in the like, okay, but maybe there's a reasonable. Time. So D could be plausible under the idea that closing date, you get a plus or minus like five minutes. Like, Oh, what if it was five minutes after the closing date? It's like, Oh, that's a reasonable Time. And then D would be like, no, this was beyond that. It was not even reasonable.

1:03:27 Thomas: You know, I think I'm going to know nonsense. This one, I th I think a closing closing date is an express term. And I think it would kind of not really work very well to have an express terms of a contract be also like not a big deal and you don't have to do it. I feel like that would mess up contracts quite a bit. So I'm actually going to go with C. Wait, that's what Eli said. It is C. So Eli just came in and said C, and now I need to guess a different one. No, I think he happened to be right. I'm going with C, and my second choice answer would probably, probably B. I mean, I think I'm C or D. I don't think you can just not be ready and then be like, okay, now I'm ready. I think I'll between C and A, just in case you do need to some sort of harm. I'm going between C or A, but I think it's C.

1:04:16 Andrew: All right, and if you'd like to play along along with Thomas and Eli. You know how to do that. Just share this episode on social media. Include the hashtag T3BE. Include your guess or reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:04:30 Clip: And thank you, Let's go!

1:04:31 Thomas: Now it's time to thank our new patrons at patreon.com/law. I hope you're enjoying all the goodies, the ad-free episodes, the early episodes, all that fun stuff, Andrew's notes, uh, miscellaneous bonuses, all kinds of fun stuff, uh, and I will start us and thank your amazing new patrons, and they are: you to Kirraness, Tomin Tollefsen, Jason Culey, Camryn, jeff creech, CORY JACKSON, Rudolph, William, Louis, Giuliani. Oh, we got Rudy Giuliani, everybody, finally, it's about time. Samvimesbootstheory, Nicholas Andrew, geoff burns, Michael Shannon, Jeff Carr, Nate Platt, Traci Dunn, We had nothing to do with this, Q Collective, what, Alex Gray, Alexandra S, mr me, Herr Doktor Professor Soldering Iron, oh, that's interesting.

1:04:58 Andrew: Ah! Nice.

1:05:21 Thomas: John Otto, Jason Young, Brendan Luster, Michael Arbeed, Byron Smith. My name is Andrew, and I love the Boston Red Sox. That was a double miss. Jon C., Andrew Dubin, and Daniel Gwozdz. Your turn, Andrew.

1:05:30 Andrew: Oh. All And a big thank you to Stephen Smith, Elizabeth Pinedo, Annette Balgord, Jeff Mayse, thecloudedgamer, pdseebart. Zoe, the puppy pug's best friend. That sounds adorable. A Pediatrician in Alabama, Michael Lewis. God, I hope it is that Michael Lewis, Sarah, Tracee Barton, DonQuixote42, Janerad, Communist Revolution In The Sheets. All right. Do they teach the establishment clause in con law or did Supreme court justices all just oversleep that day? Yeah. I did six Supreme Court justices all just oversleep that day. TheTiredKid, ActuarialHero. Now I'm picturing an insurance-based superhero. That would be great fun. Laurel Starling, Fearsome Kitty. They're all fearsome in some ways. Alexandria Kovarik, Royce Simmons, Nate White, The King of Games. Ooh, that would be a title in heavy dispute here in

1:05:57 Thomas: Oh, man.

1:06:38 Thomas: Yeah.

1:06:38 Andrew: This house. Non-denominational space lasers, Caden Ringling, Skylar Young, Ian C., and Lyle Begiebing. Thank you all so much for supporting the show. You know how to do that, Patreon.com/law. Send us as little as a buck an episode. You get all the great goodies, and we will read your name, even if your name makes absolutely no sense.

1:06:59 Thomas: And that's our show. Thanks so much for listening. And once again, a big hearty Andrew was right. Nailed this prediction. I'm looking forward to the fruits deposition, of this closed-door interview. Hopefully it turns into Star Witness, but who knows? Maybe it won't. Anyway, either way, we'll be watching that hearing, and we will see you for an episode on Monday.

1:07:18 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.

1:07:52 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.