OA614: The FEC Is Corrupt and Broken. Biden Has Inexplicably Neglected to Fix It.

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

0:01:23 Andrew: I'm fantastic, Thomas, how are you

0:01:24 Thomas: Oh, I'm doing great. I've been waiting for the explanation on Elon Musk because we've had so many people will email us about that. Can't wait to clarify all that. I don't think we have any announcements or anything, so I suppose we should just get to it.

0:01:37 Andrew: Yeah, let's dive in.

0:01:38 Clip: Andrew Torrez is correct, the best kind of correct, Andrew Torrez, you were right, tell your sister, you are right.

0:01:54 Andrew: I don't want to, uh, pull a muscle patting myself on the back here, but feels I appreciate that. Feels really good to do episode 610, uh, and predict that the Elon Musk deal will fall apart. I think I gave a good lawyerly prediction sometime before October of 2022, and uh, three days later that was was when that actually, uh, came to pass, and yeah

0:01:59 Thomas: Let me spot you. I can help you.

0:02:18 Thomas: Yeah. I've been way more bearish, I guess, on the deal happening. But I can't take credit because it's all just based on the information you've given me. But this

0:02:25 Andrew: Yeah And I, I didn't want to be engaged in motivational reasoning, right, like I think it would be a disaster to have an entitled man baby like Elon Musk take Twitter private such that it no longer has any minimal obligations to anyone, right, that would be a disaster, so I think that was part of hedging my bet on that. But from the beginning, right, this looked like somebody who wanted to flex his muscle, right, tried to get added to the Twitter board, bought up a whole bunch of stock, they realized, oh man, like we, we, we cannot work with you, uh, that fell through, and he was like, all right, fine, I'm the richest man in the world, I'm gonna buy the whole damn company, and, and I, I guess if you're the richest men in the word, you know, you, you throw, you know, fits of peak like that.

0:02:33 Thomas: Right. Yeah.

0:03:18 Andrew: But really, uh, didn't think this through it all, uh, and you know, when we were hitting a point where this was going to mean real money, uh, a real hit to his real net worth, um, I think the writing was on the wall.

0:03:32 Thomas: We address a bunch of the conspiracy theories of he's actually a secret genius forever? Because I think what dudes on the Internet like to do is just assign someone to be a genius of some kind. And then every every single thing they do just gets explained through that lens, which is easy to do. You can do that with it. You can Do that with Trump. They, people do that with Trump. They just same, some of same people actually. But,

0:03:38 Andrew: Yes. Yes. They do, and Parenthetically, Elon Musk's description of the plan for Tesla, right, I think really is genius,, right, and that plan was basically, I'm oversimplifying here, he was like, I'm gonna do a three-step process, right, so the first is proof of concept, super luxury car, two hundred thousand dollars, right, and each step funds the next step. We, right, know there are people who buy two hundred thousand dollar cars, right, they do that all the time, so I will have a market for that, that will then fund the luxury car project, eighty thousand dollars, that's a much bigger market, right, and then that will snowball and fund the thirty to a $40,000 car project and

0:04:16 Thomas: Right.

0:04:29 Thomas: That worked out. Smart plan. He didn't invent Tesla. He didn't build a car. He did none of that. But yeah, good plan for that. That worked out well.

0:04:31 Andrew: Yep. Yeah. Yeah. So So what I say, Elon Musk is not a genius, it does not refute that argument to say, well, he's had really, or to say, you know, where's your 200 billion dollars, Torres, that's, that's a pretty good argument, uh, but, no, like, that does not mean he hasn't had smart business ideas, right, that's how I would frame it.

0:04:57 Thomas: Yeah. No, it's just that this was clearly it's one thing to say he's had good ideas. That's fine. And he has. But it's another thing to take what was clearly a terrible effing idea and then retcon it into a good idea no matter what. That's just not the truth.

0:05:04 Andrew: Now, Yep. Exactly. Right. Twitter.

0:05:13 Thomas: I pretty much agree with you. I think he genuinely wanted to buy Twitter. And tech stocks took a complete dump and he realized he got into it at the highest possible price, because like he didn't time it very well and and like you say once it came to real money uh he's trying to get out of it any way he can but he really I I believe he really wanted to buy it and I think a lot of people are out there trying to make it into some four-dimensional chess thing where he didn was never gonna buy it, it just crashed the price of something to do something else, you're like, no, that's no, who pumped and who dumped?

0:05:33 Andrew: It was a right like people saying this is this was a pump and dump, and you're like, wait, the pump and dub whereby yeah whereby you crater your major asset by 35, oh, and by the way, you've pumped up, because it's hard to know exactly, Twitter went

0:05:46 Thomas: Yeah. Yeah, Andrew, it's pump and dump. He pumped up the price of the thing he was trying to buy and down the money he had and then couldn't buy it. And then it all went to crap.

0:06:05 Andrew: So Yeah, I would just say if you're sitting there thinking that he's playing the long con, uh, do the math, and and that, I think, we'll, we'll answer that, yep, oh

0:06:11 Thomas: Yeah. However, question for you, because I saw this and I know we did this exact segment and you've been right all along, but I think what I gathered from our most recent episode was, it's unlikely that they're going to make Elon Musk buy Twitter, like a court will make. We did a whole segment and you're like, yeah, there's a lot involved in that. Yes, it is theoretically possible. However, there's so much, when so many people would be affected by that decision that Elon Musk would be forced to make. Courts are reticent to make someone do that. And then all the headlines are now Twitter is going to make Elon Musk buy it. And I think that's still compatible with what you said. I just would like maybe to give you the opportunity to clarify because I think a lot of people are like, wait a minute, you said that wouldn't happen.

0:06:55 Andrew: I hope I'm, please, please go back and listen to Episode 610, because I feel like this is a clear, like, center of the bullseye hit. Right. And I'm not just trying to, you know, we do a segment recurring segment called Andrew was wrong. I'm happy to tell you if if I if I screwed it up.

0:07:03 Thomas: Yeah. I am happy to tell you when you are wrong.

0:07:11 Andrew: Yeah, exactly. You're extra happy. Yeah. So what we did was sort of both polls in Episode 610. I said, hey, let's talk about the can Twitter bots prove a basis for Elon Musk backing out of the deal. And I explained to you that that was pretextual, that it doesn't line up with the disclosure requirements that are in the merger agreement. And that, yes, Elon Musk is putting his eggs in that basket. But that is just what you do when the alternative is write a billion dollar check. Right. And so then I said, well, then let's look at something that has been making the way in.

More respectable for it. Right. Like, like, business journals were starting to interview mergers and acquisitions lawyers. Right? And say, oh, well, okay, Torres is right here. Like Elon Musk is jerking you around. All of this has been pretextual. It's been ridiculous. Can they sue and get specific performance? Performance, and what I described was, uh, I don't know that I ever said this sentence, which I wish I had, that absolutely, I expected, uh, and has happened, that that Twitter would sue Elon Musk in Delaware for specific performance. Okay, I think I said there will be a lawsuit in

0:07:41 Thomas: Yeah. Right.

0:08:26 Andrew: Delaware and I, I really wish I had been clear about that yeah, yeah, I really, really wish I had said Twitter would be the plaintiff, because then, you know, it would have been easier to kind of, uh, line that up, um. As I explained in Episode 610, the contract says that that Twitter has the right to seek specific performance, and specific performance is, you promise to buy the painting, I give you the money, you abscond with the money, instead of, uh, getting just getting the money back, I get the painting, I make you follow through with the specific terms of the contract. And as I explained in that episode, that is an incredibly rare form of relief, right. It's not a thing that the courts like to do. What the courts like to is reduce everybody's complaints to money and then figure out who owes who what money, right, that's what courts are really good at, and that's what our

0:08:28 Thomas: You literally said Delaware. Yeah.

0:09:19 Andrew: That's what our civil legal system is meant to do when things aren't money, right, that's when they fall into the category of irreparable harm, we've talked about that all the time, sometimes money can't make something go, you know, they're, they're about to put your child in a cage, okay, well, that's irreparable harm. They can't say well you know something happens like I'm sure the government will yeah exactly right, and so I went through the leading case in Delaware, which is a case called In ray IBP Inc. versus Tyson Foods from 2001, this will feature prominently in Twitter's lawsuit right because everybody agrees, like, this is the, uh, the main Delaware court that said, hey, we're going to force Tyson Food to buy IBP Inc. right, as specific performance as a function of the merger agreement. But I pointed out that in that case you really had two things that aren't the case here.

Number one, that the deal itself was capable of being consummated without any outside help, right, Tyson Foods paid cash plus there was a stock, a cap option, right, so if you owned IBP you could say, yeah, I want the equivalent value of my stock in Tyson Food stock, right, that's not on the table here, right, there is no option under this deal for Twitter, Twitter shareholders to get Tesla stock, right, they, they are to get money and that's it.

0:09:37 Thomas: Yeah. How much is that worth to you? Yeah.

0:09:54 Thomas: Well, there was just because we'll get the email. There was the thing where he was possibly going to work with some people and give them stock in the equivalent new company of Twitter, right?

0:10:41 Andrew: Yes uh, that that was in the gap financing phase right to raise more

0:10:52 Thomas: Right. But still, that wouldn't really solve the problem. Yeah, yeah.

0:10:54 Andrew: Yeah, it would give Jack Dorsey some Tesla stock, not the average Twitter shareholder. And what that means is a Delaware court, I said this in Episode 610, 100% can order Elon Musk to sell Tesla stock. They absolutely can do that. They can say, yep, you promised to pay $33, you got to come up with the $33 million, I don't care how you do it. But the deal does not require Elon Musk to turn over $44.5 billion of his own money. That additional 11 and a half, 12 billion dollars comes from the financing groups.

And I think when you combine, I think, I think that so the first major salient feature is that courts are going to look at objections of the financiers, right, right. We're going to say, yeah, we don't, we don't want to loan money in THIS CONDITION ANYMORE. Right. This is this deal's gone south. These the parties hate each other. And by the way, the the valuation is now materially different. We'd like out. And, you know, OK, JPMorgan Chase isn't maybe the most sympathetic third party. But I think you're also going to hear from members of the Tesla board of directors. Right.

Who are going to say, hey, we enacted good governance restrictions that prevent any shareholder, including Elon Musk himself, from selling off huge tranches of Tesla stock at any one time because we know that drives the price down. And in Right. Order to sell quickly all at once, you have to cater to folks who would rather be holding that stock right now. So it drives the stock price down. That's not good for our shareholders.

0:10:58 Thomas: Yeah lots

0:12:37 Andrew: We have specific instructions in our bylaws that prevent you from doing that. And the effect of your court decision requiring Musk to buy Twitter is going to hurt lots and lots of people that have Tesla in their 401ks. Case.

0:12:52 Thomas: Of people who weren't billionaire playboys trying to buy a company for way too much money

0:12:53 Andrew: Yeah. And I think, I think that that first argument in terms of the, because this is all equitable relief, I think is going to weigh very, very heavily on the court. And I think the second element is this question of irreparable harm. And it's why I went through in Episode 610 showing that Tyson Foods had really, you leapfrogged over and driven a competitor, Smithfield Ham, uh, out of the market for buying IBP.

And so, there sense, so the argument was made that it was almost impossible to determine the damages that IBP had suffered from, then Tyson Food saying, oh, now we're gonna back out, and you got nobody who's interested in, you know, you used to have two bidders, going back, now you have zero. And and the court said, yeah, no, it's going to be really hard to figure out what payment would make IBP whole. And here again, understanding that there are arguments to the contrary. That's why I said I think this case is going to take a decade. Right. Like if it's clear as Kushner case closed, you don't take a decade. Right. They will muster every argument imaginable. And you could make an argument that says when the parties have agreed to a billion dollar liquidated damages clause, that doesn't mean all of the damages are rightfully. But in this case, it kind of feels like that's what you guys agreed to, right? You said, if this falls through, our lawyer time, the PR hit, the

0:13:45 Thomas: Right it

0:14:25 Andrew: Lack of opportunity to talk, we're going to call that a billion dollars. And we're gonna say that that's bilateral, if we, right, Twitter can't convince our board, and we have to back out, we'll pay you, Elon Musk, a billion, if you, Elon Musk, back out, uh, you, pay us a billion dollars, right.

0:14:41 Thomas: Just reminds me, sorry, we always do the references, but it's the Seinfeld, early one, Kramer's does the levels, he's like, "Levels, Jerry, I'm gonna try and get all my furniture, I'm just gonna make my apartment different levels," and Jerry's like, "No, no, you're not." And he bets him that he won't do it. Later in the episode, Kramer's like, "Oh no, it's not that I just decided not to do it, it' not that I couldn't do it, I just didn't want to." He's like, that was the bet that you wouldn't do it. It's exactly that. You can't, Elon Musk can't just be like, okay, but now, but I don't want to though. That's the thing. It's not that I can't buy it, it's that I just don't want to. So let me get out of it.

0:15:06 Andrew: Right Yeah, and, and, I want to be clear, because we've gotten a couple questions on this, and you know, this is this is tough uh mna law, to to understand. I am not saying, saying that Elon Musk has acted in accordance with the termination provisions of the merger agreement and therefore can just pay the billion and get out. I am not saying that he has violated the contract, in my view, and Twitter is by calling off the deal.

0:15:38 Thomas: Hmm. Oh, so that's, oh, I'm sorry. So So that's different than just executing that billion dollar, not going to do it, not putting levels in my apartment. Oh, question? Why wouldn't he have just done that? Because he thinks he can save the billion dollars.

0:15:53 Andrew: That's right, that's no because because that is covered by Article 8, which is the termination section of the agreement, right, these are the conditions under which a party may terminate, that is, voluntarily walk away from the agreement. So the agreement may be terminated at any time prior to the effective time, that is, the closing date, whether before or after company stockholder approval is obtained, as follows, A, by mutual written agreement of both parties, right, each of parent and the company, okay, that didn't happen, by either parent or the company, if the merger has not been consummated by the closing date, right, well that

0:15:58 Thomas: No, Okay.

0:16:39 Andrew: Didn't happen right and you there was not an extension, if any governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced, or entered any law or order or taken any other action permanently restraining and joining rendering illegal, right, yeah, not, not that, uh, or uh, if the company stockholder approval shall not have been obtained, right, that didn't happen yet, but that's not the reason, okay, so none of those happen.

0:16:40 Thomas: Not there yet. Yeah, sure.

0:16:53 Thomas: Okay. Not that.

0:17:03 Thomas: Could he have gotten the mutual one? I know none of those happen, but I guess my question is why wouldn't you have just gone onto Twitter and be like, Hey, I don't want to do this. Let me pay you a billion dollars. Or maybe they just didn't agree to that.

0:17:03 Andrew: Right I, I do not know if that offer was made, I suspect that this is the classic, this is a problem of large numbers, right, let's take it, you and I have this, uh, but it's five orders of magnitude smaller, right, so instead of a billion dollar penalty it's a hundred dollar penalty, right, and suppose I think I can probably, if we were to go to court, get that knocked down to about 70 bucks, and you think if you go to court you could probably get 200 bucks out of me, we're still highly incentivized for me to just pay you the damn am hundred dollars, right, because I really, you're going to go to court over the difference between 270 dollars, like, no one would do that, that would be insane, but when you scale those back up to billions, right, if Musk thinks that he can effectively pay 700 million uh at the conclusion of some sort of binding mediation after you know throwing away another hundred million on legal fees or something like that and Twitter thinks that not only can they get the full billion but you know probably some additional damages and maybe make him sweat about uh because again the arguments for specific performance here are not frivolous right I just think they're not likely right so I would say you know 10 percent right well you know ten percent of you have to pay us 44 billion dollars now you just see it and you're like yeah okay well I don't see why we we would compromise on the difference between 700

0:17:18 Thomas: Okay. Yeah mm-hmm yeah yeah mm

0:18:41 Andrew: Million and 2 billion right now. And that's yet another reason why, you I've said virtually all of the harms of the U.S. legal system can be traced to one megacorporation suing another one. So. The answer to your question is he could have gone to Twitter and said, hey, why don't I just pay you the billion dollars? We tear this all up. And that would have been perfectly valid. There's one more section right so we went through termination by mutual consent by either party by the company we skipped over because they didn't terminate it and then here is word for word the only grounds under which Elon Musk can terminate the deal. One, if the company shall have breached or failed to perform any of the representations, warranties, covenants, or other agreements set forth in the agreement, right? So he's saying that's my ground, you didn't give me the twitter Twitter bot information. Listen to 610 for why that's bullshit, right?

Where such breach or failure to perform would give rise to the failure of any condition set forth in this agreement, 7A, 7.2, and is not capable of being cured or is not cured by the company on or before the earlier of the termination date. And then, you know, some additional boilerplate at the end of that. Or prior to the receipt of company stockholder approval, if the company board shall have shall have made an adverse board recommendation change, right?

That is, if the board of directors of Twitter says, hey, um, we know we're going to put this up for a vote, but we encourage you to vote against it because, right,

0:19:13 Thomas: Right

0:20:10 Andrew: We've got a better deal coming down the pike. Well, then Elon Musk can say, yep, you know what, taking my ball and going home. And by the way, if either of those conditions hit, he would be owed the billion dollars. Right so of that is there was never sometimes you have in a contract you know you have a no fault termination fee you're just like hey if this goes you south then uh you can just walk away and you pay an x dollar amount

0:20:21 Thomas: Yeah I I think for whatever reason I had just assumed that's what it was and I think that's where I keep getting confused and maybe others are like me so there never was just an f off for a billion dollars clause for, for anybody. It's, it's, there's the billion dollars, but that was tied to very specific, you enumerated circumstances.

0:20:36 Andrew: Yep correct correct exactly right but the significance is if you were trying to argue that there's just no way to calculate damages here and therefore it must be irreparable harm, a really good counter argument is, well, the the party's kind of agreed to liquidate a damage. Yes. In different circumstances but like can you say that this isn't a fair measure of damages and I think I think you put those two things together, right? And again, I want to be clear, would not be impossible. I will tell you, you know, when I think a ruling is completely contrary to law,

0:20:54 Thomas: Okay. Right.

0:21:29 Thomas: I'm to say, for example, the past month of the Supreme Court.

0:21:30 Andrew: Yeah, exactly right. So, it would not been impossible for a Delaware court to order Musk to buy Twitter, to Order specific performance. But I judge it very, very unlikely. Unlikely. And I bet you if you could get a hold of Twitter's lawyers and hook them up to the, you know, hypothetical truth machine, right, because sodium pentothal doesn't work, and get them to, they would tell, yeah, we don't think this is a high likelihood probability event.

0:21:31 Thomas: Yeah.

0:21:57 Thomas: I'm Yeah, mm-hmm.

0:21:59 Andrew: It's a right we have, and you know, by golly, we're gonna use it. And that's what I think's going on.

0:22:05 Thomas: So, bonus, uh, uh... Elon Musk, half an episode there for you, but, uh. Yeah! No, that still tracks with everything thing you said. So everybody, uh, emailing us and commenting, saying they didn't think this, you know, they thought Andrew said this wasn't going to happen. Yeah, he did. It's just that, you know, Twitter goes through with that legal option they have, and and it's not impossible that it would happen, but it's it's unlikely, according to, uh, to your analysis. So cool.

0:22:29 Andrew: Yeah.

0:22:29 Thomas: I think I've, uh, they've got it all, all.

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0:24:05 Clip: Down the law, down the law.

0:24:09 Thomas: All right, Andrew, in our next segment, you have it listed on the white board here as the FEC is broken. Uh, great. Another thing's broken. Awesome. Let's, uh, hear about how another thing is broken and hopefully in the end we can hear about what, how we can fix it. Maybe.

0:24:17 Andrew: Yeah. Yeah, and and there are things that can be done to fix it. This is something that, uh, the Biden administration has not acted on, not done a good job with. I don't know why. And I want to call their attention to it. Obviously, you know, there is sort of the general Republican delays in holding hearings. But this is something that is pretty crucial and is going to have enabled the Trump campaign to have gotten away with even more fraud. So, um, let's do a little bit of a primer on the Federal Election Commission, established 1974 by various amendments to prior election laws, now codified 52 U.S.C. Section 30101 et seq, Section 30106, gives rise to the structure. And as soon as I explain the structure, you're gonna go, oh, okay, I get how Donald Trump was able to break this. And you're going to be partially

0:24:25 Thomas: Oh, good. Hmm.

0:25:15 Andrew: Right. Okay. So the commissioners serve staggered six-year terms, right? No more than three members may be affiliated with the same political party. And the vote of four members are required in order to take basically any action whatsoever. So what

0:25:20 Thomas: Hmm.

0:25:31 Thomas: This really sounds like what our Supreme court should be almost.

0:25:33 Andrew: Actions can they take? Well, that's 30107, 52 U.S.C. 30107. So the first, five A, one through five, are, they can hold hearings, they can subpoena witnesses, they can make you testify, all of the things that make this, you know, a valid proceeding. But But what are they holding them for? Well, for a couple of different things. Uh, subsection six, uh, to initiate through civil actions, or for injunctive relief, to enforce the provisions of the act, right. So the FEC, if they, they get a tip that a campaign is violating the law during their campaign, they can go into court and sue to stop you from doing that. They can render advisory opinions. This is actually a surprisingly robust function of the FEC.

0:26:23 Andrew: And that is campaigns will write in and will say, we know a campaign. Call it the Schmillery-Schmitten campaign. No, they actually write in with their own names. And they say, hey, can we do this? Right. So, for example, Jill Stein wrote in and was like, hey. Can we use she

0:26:36 Thomas: Hmm. Can I defraud a bunch of idiots who think, sorry.

0:26:43 Andrew: Wrote it to say, Hey, can we use ordinary campaign contributions to pay FEC fines? And the FEC was like no, of course not. You nitwits. So and that's an advisory opinion. When you ask for that, you haven't done it yet, presumably. And And so, you know, you are entitled to them say, this is what we think is the legal course of action. And then if you rely on that, you've got a pretty good defense if it turns out to be not legal. They can also rulemaking. That's typical agency stuff.

Or, and finally, this ist the important one, They can conduct investigations and hearings expeditiously to encourage voluntary compliance and to report apparent violations to the appropriate law enforcement authorities. So violations of what? Well, this is set out earlier, and I will tell you, most of our election laws now are about reporting or about disclosure. And if you want to argue that they are woefully insufficient, I'm right there on the line with you. But the question is, can we enforce the woefully insufficient ones we have? And that's kind of the point of the story. So what do have to report if you're a campaign?

0:27:07 Thomas: Yeah. Hmm,

0:27:54 Andrew: Well, you have to report quarterly the amount of cash you have on hand. That's why that turns into such a big story right during the primaries. If you recall when it's like, ooh, Elizabeth Warren has $7 million cash on hand and raised $12 million, right? They get that from FEC reporting requirements. So amount of cash on hand, the total amount of all of the receipts, that is what you've spent the total amount of contributions, right? From persons, from the candidate, from political action committees, from other political committees, transfers, loans, rebates, dividends, interest, other forms of receipt. And because apparently you can transfer dividend earning stock over to a campaign.

0:28:05 Thomas: Yeah, yeah.

0:28:34 Thomas: Dividends? Contributions? Stock is Like a Oh. Interesting.

0:28:40 Andrew: Yeah. So this is a leftover for an authorized committee of a candidate for the office of president. Federal funds received under Chapter 95 and 96 of Title 26. You may or may not remember this, but throughout most of the nation's modern history, presidential elections were publicly financed. The presidential candidates could take matching funds and that limited the amount they could spend. And Barack Obama blew that up in 2008. And that is never coming back. But if you were thinking about a good model for having elections that are publicly financed, we've had them in the past. There's no bar to us doing that again. And have that vestige in The, the

0:28:41 Thomas: Yeah.

0:29:19 Thomas: It still Asks you in your taxes if you want to Donate to that, right? Isn't it still possible? It's just nobody does because they wouldn't get enough money.

0:29:21 Andrew: Yep. Yep. Yeah. Well, No. It's actually worse than that, uh, and I have gone from pre-2008 always checking the box because it doesn't increase your taxes, that's how it's allocated, pre-2008 always checking the box, to post-2008 never checking the box because the parties that get matching presidential funds now are third fourth Yeah. Just The minor parties, yeah.

0:29:26 Thomas: Oh. Oh.

0:29:44 Thomas: Just Yeah. The Okay. Good to know.

0:29:47 Andrew: You do whatever on your taxes, do not take tax and law advice from, uh, from a podcast, but that's why I stopped checking the box.

0:29:55 Thomas: Always Thought it, that's funny. I never read it that closely, I always though it added a contribution, like, you know, the children's hospital at the supermarket or something, oh well, I would have been doing that, but I never had. And now I'm glad I'm not.

0:29:55 Andrew: Yeah. Nope. Nope. Just diverts and Now, now it's a good thing, so, okay, uh, you also have to identify each person whose contribution has an aggregate value in excess of 200, each political committee that makes a contribution, together with the date and amount of any such contribution Yeah, any person who makes a loan to the reporting committee, and then you have to identify during each reporting period, this is quarterly, the total amount of all your disbursements, right, your operating expenses, transfers to other committees authorized by the same candidate, transfers to affiliated committees, repayment of loans, refunds, other disbursement, right, and the refunds, that's a real thing, right, like if you give two hundred dollars to the Elizabeth Warren campaign. And then you write and go, man, I misclicked on that. They have to give you your money back and they have to file out, you know, they have to list you on like seven different reports now because you could imagine otherwise you could launder money that way. Right. And so all money in, all money out has to be logged on your FEC reports.

0:30:21 Thomas: Boy, that's so many people.

0:31:12 Andrew: And finally, the name and address of each person to whom an expenditure and an aggregate amount or value in excess of $200 is made, each authorized committee, each person who receives a loan repayment or person who received a contribution refund or other offset, so, um, and then there are rules for Packs, again, not the greatest rules on earth, but, but, you put all this together and you get some information, right, and it's enough to trip up, uh, felons like Dinesh D'Souza, right, con artists like Jill Stein, uh, and

0:31:42 Thomas: People like Ted Cruz who get away with it because the court changes his mind to help him.

0:31:45 Andrew: Well, Let's talk about that, so how could this work in practice, let's use a real world example from 2016 and let's not pick on Jill Stein anymore, let's pick on the candidate you and I voted for, Hillary Clinton.

0:31:58 Thomas: Ted Cruz.

0:31:59 Andrew: Bombshell announcement on opening arguments, yeah, um And this is in connection with the Steel dossier, right? So here's here's what happened in 2016. Perkins Coie, that's a law firm, engaged Fusion GPS to provide opposition research for Hillary for the Hillary Clinton campaign. There is nothing wrong with that. Perkins Coie paid $1,024,407.97 to Fusion GPS. Nothing wrong with that. On Hillary's FEC disclosures it shows a payment from HFA, Hillary for America, to Perkins Coie of $849,407 and 97 cents that's exactly to the penny $175,000 less than Perkins, Perkins Coie's payment to Fusion GPS, right? So it looks kind of suspicious, and of that $782,907 and 97 cents that's a minus another $66,500 was described as legal and compliance consulting. Now, after investigation, it's pretty obvious what happened here, Hillary for America reimbursed Perkins Coie for the $850,000,

0:32:00 Thomas: Sorry. Yeah, that would be big news. Yeah.

0:32:20 Thomas: Yeah,

0:33:19 Andrew: For $850,000 of that little over a million that was paid for Fusion GPS. And the other amounts, right, were very likely distributed to Perkins Coie under other disbursements, right? Because Perkins Coie was also doing law firm work, right? They were actually doing legal and compliance consulting for the Hillary for America campaign. Be clear here, again, as a Hillary Clinton supporter, legal and compliance consulting is not oppo research, okay? The Hillary for America campaign was hiding about a million dollars that they spent.

Andso even if you voted for Hillary Clinton, I would like, you know, you have a right to know how the campaign spent your campaign contributions, contributions, right? So various complaints got filed with the FEC once, you know, the Steel dossier came out and was public knowledge, you know, people went back and looked through and were like, hey, did, uh, Hillary tell us that, you know, they were hiring Fusion GPS to to do this, and the answer was no, they didn't. So after about a year of preliminary investigations, the commission opened up what they they call a matter under review, okay, so this is that subsection nine, this is the most serious thing they do, uh, two of them in fact, 7291, 7449, because there were two separate complaints, and then about two years later they concluded that investigation and the commission found probable cause of a violation of the election laws, namely failure to disclose the person that you you were spending money on, and the reason you were spending money. Now, that point, here's what almost always happens.

0:34:58 Andrew: And that is the campaign will come back and will negotiate a settlement. Okay, that is called a conciliation. If they don't, right, then you go forward to a formal decision. Because this is an administrative agency, you have the right to appeal that to the courts, right. So you know, If it's something that you truly disagree with, you have due process here. But by and large, campaigns are like, all right, fine, you caught us. What do we have to cough up? And so here, Hillary for America had to pay $105,000. So that's somewhere between, what, an eighth to one-tenth of the amount that was directed to the Steele dossier, right? The amount that they misrepresented. They had to agree not to do it again. And and by do it again, that means any violation of disclosing your vendors.

0:35:49 Andrew: Right. So if if they'd had a subsequent hiding, then the FEC could, should and likely would say, oh, by the way, this also violates your consent decree, your conciliation in this prior matter. So we can reopen that. Right. And we can increase the penalties. You know, it's kind of like you commit a crime when you're on probation. Right? Why

0:36:05 Thomas: So why Did they do this? Are my Fox News watching family correct? I mean, Why, why is why Did they

0:36:12 Andrew: Yes. Your Fox News watching family is correct. They spent the Hillary campaign was doing oppo research and they didn't want in their public filings that anybody can look through to say we spent this money on Fusion GPS. So instead it says, We spent this money on Perkins Coie. Because when you say we spent this money, on some new name that shows up, then political reporters and people like me will look at that report and go, hmm, I've never heard of Fusion GPS before. What the hell is that? And then we'll look up that vendor and maybe try and track down and figure figure out why the Hillary campaign is giving you a million dollars. And particularly given the content of the Steele dossier, I think they didn't want that to become a story. And so they hit it and they were like, yeah, we're going to have Perkins Coie hire them. And when we show that we've given money to Perkins Coie, everybody looking at this report is going to be like, of course you've given money to Perkins Coie. They're your law firm, right?

0:36:30 Thomas: Why

0:37:17 Andrew: So open question, question if they had had a separate line item to Perkins Coie for a million bucks that says oppo research, this would have been a harder case, but they didn't. Okay. They lied about it. They said legal and compliance consulting. And you

0:37:24 Thomas: Yeah I Guess I'm not understanding What the, why they lied about it, like is this, is it a timing thing where it's like they did the oppo research, they got the results of it, and then we're like, oh, this is weird, so when we go to report what we put, because otherwise I guess I'm not, not understanding the timing. If I was just like, oh, Perkins, like Fusion GPS do oppro research, why would I preemptively think to hide that?

0:37:54 Andrew: Don't, you, the reports come afterwards, These are quarterly reports. So your first, we don't know, right. It's all supposition, but I think the first version of your story is likely correct. Perkins Cooey said, hey, somebody made the decision to engage Christopher Steel, uh, and Fusion GPS, uh, and that report was delivered and John Podesta looked at it, was like, holy shit, we can't, like, you, we're gonna lose a news cycle if we spend it talking about, like, you know, hookers peeing on a picture of Barack Obama, like, no, do whatever you

0:37:57 Thomas: Okay, well Why

0:38:28 Andrew: Can to make sure we don't have to to talk about it

0:38:28 Thomas: Would They Get What How would people get the report?

0:38:31 Andrew: Because you would then call up, I mean, the same way that we, we did in, in actuality, when, right, something surfaces, you would say, oh, uh, there is a line item here listing, as a major vendor, right, a million dollar vendor, to the Hillary for America campaign, is Fusion GPS and So reporters would be like, what the hell is Fusion GPS? Yeah, and

0:38:47 Thomas: Right Uh-huh And Then they call Fusion GPS and they'd Say Well We do Oppor Research And then the media says, well, we get to have that for some reason.

0:38:54 Andrew: Then They call Call Christopher Steele. Yeah, right. And

0:39:00 Thomas: I don't understand.

0:39:00 Andrew: Then who knows, right? Like it depends on what they say at that point, right,

0:39:04 Thomas: This is weird to me. I don't, I don't understand why this is happening. Is the reporting so far after the fact that this was like, it was already leaked and they already knew all that and this was already public what was in the Steele dossier. And so then they were like, okay, let's hide this after the fact.

0:39:19 Andrew: Yeah, So my guess is, again, without kind of going back to do a match of when things first started coming out, that there was some, there was a reason to say we do not want to disclose why we've spent a million dollars on Fusion GPS, right? They made that decision and they made the decision to break the FEC laws, okay, uh, and so

0:39:42 Thomas: So Hillary for prison, I guess. I don't understand. This is weird to me.

0:39:45 Andrew: You look at it well,

0:39:45 Thomas: I don't understand. Oh,

0:39:45 Andrew: We're about to, we're 'bout to, to unpack this a little bit. So think about what they did, uh, this meant five years later they paid $100,000 to hide a million dollars worth of disclosures. So, you, this is the system worked, right? So if you want to argue maybe the system isn't great, like I said, I'm on board, when a Democrat violates the election laws.

0:39:58 Thomas: Yeah. Wow.

0:40:08 Andrew: Now, let's say it again, don't want a two-quote way fallacy here, but I think you're going to see a couple of salient differences. What happens when it's Donald Trump? Instead of talking about an embarrassing million-dollar line item, you're talking about, and I'm just going to pick this number out of a hat, three quarters of a billion dollars, okay.

0:40:28 Thomas: Yeah.

0:40:28 Andrew: And that is MUR 7784. This complaint deals with two different vendors, American Made Media Consultants LLC, AMMC, and Parscale Strategy LLC, Parscale strategy, uh, which is uh Brad Parscale's outfit, right.

0:40:45 Thomas: Some.

0:40:45 Andrew: Complaints were opened, the non-partisan staff attorneys, just like in the Hillary Clinton case, were like, uh, yeah, these are just nonsense shell companies that are being used to hide what the campaign actually spending money on. So the specifics, between April 2018 and November of of 2020, the Trump committee reported disbursements of 519 million dollars to AMMC, and then the joint fundraising committee, right, so a related Trump committee, reported 255 million dollars between November 2018 and December 2020, okay, so add that together, that is 774 million dollars, um, slightly more than the Steele dossier, right, and in reporting payments only to AMMC, right, the committees hid the ultimate payees that were working for that committee, just like the Perkins Coie, right, so literally you look at those report and there is a single line item that says, oh yeah, gave money to AMC, um, what did it say, it would say things like strategy consulting, okay, well thanks, that, that was super helpful.

0:41:57 Thomas: Expensive. Strategy.

0:41:58 Andrew: Yeah, right, so, uh, essentially AMMC was a shell company that masked the hundreds of millions of dollars in campaign spending on, what we still don't know, a ton of investigative reporting on, notoriously, this liberal outfits like the Wall Street Journal. So there are some guesses, I don't really care, the point is that with AMMC, there's three quarters, over three, three quarters of a billion dollars that was handled exactly in the same way as the Steele dossier funds. And Parscale Strategy, much smaller numbers, $8 million, but again, the people that this was funneled to were inner circle Trump friends, girlfriends that really, really look like kind of classic grift. So, uh, Parscale Strategy paid the salaries of Trump campaign staffers, including Laura Trump, Kimberly Guilfoyle, that's Donald Trump Jr.'s, yeah, girlfriend, and Bradley Parscale. So you can't do that, you, right, cannot say, we are giving Parscale Strategy eight million dollars for strategy consulting, photography services, and, and then this line, consulting dash management slash strategy slash communications slash political slash digital, okay.

0:43:22 Thomas: I'll take some photos for you for half that.

0:43:23 Andrew: Yeah. Yeah, what they were doing was hiding the fact that, and, and, and moving off the campaign salaries being paid to close friends.

0:43:34 Thomas: Cronies. Yeah.

0:43:35 Andrew: Of Trump cronies.

0:43:35 Thomas: Friends. And families, yeah, oh.

0:43:37 Andrew: Girlfriends, whatever. And now I'm going to quote the Broussard and Weintraub dissent directly, we agreed with the nonpartisan attorneys and voted accordingly to begin an investigation. We did not, however, have the necessary four votes to initiate an investigation. All three Republican commissioners voted against our attorney's recommendations and voted instead to dismiss the allegations. The vote came shortly after the commission did manage to find enough Republican votes to find probable cause to believe the DNC and Hillary Clinton misreported the purpose of payments to a law firm. That was the 77 49 case that I just described.

As our attorneys explained, the circumstances in this matter are analogous to to the DNC case, both involved a presidential candidate making payments to a vendor along with credible press reports alleging that the purposes of those payments were for something other than what was disclosed. That, this is the biggest, by the way, line ever, we voted to enforce the law in the DNC matter, as we did here.

The major, major difference, excluding the parties, is that the DNC case involved a tiny fraction of the amount of money at issue in this matter. And that is correct. So the, the Hillary. Yeah. So,

0:43:54 Thomas: Wow. Wow.

0:44:44 Andrew: You know, again, Democrats enforce the law against Democrats and Republicans. Republicans were like, we're just going to dismiss this matter? How does this happen? Thomas, I'm going to ask you two unfair leading questions here. So first is

0:44:44 Thomas: Oh, Great, I'm gonna step on the rake. I love it.

0:44:57 Andrew: Yeah. Told you there's six FEC commissioners, right? Now, how many do you think were appointed by Joe Biden?

0:45:00 Thomas: Uh, I'll say one. Okay.

0:45:05 Andrew: So, zero. Uh, how many of you think were appointed by, in between Joe Biden and Barack Obama.

0:45:06 Thomas: Zero. That's worse than... Why are we doubling up on Joe Biden again? We already said zero.

0:45:15 Andrew: You know it was so far right, so, so by Obama, but by the two of them, right by all by any Democratic president in this millennium. Yep.

0:45:18 Thomas: Okay. By Obama. Refresh me on the rules of appointments. I thought you were supposed to get, like, no more than three of one party. Fix your terms.

0:45:27 Andrew: Six six year terms, no more than three of one party. Yes.

0:45:32 Thomas: So I'll say, like... four of them would be Obama. Oh, zero. That doesn't seem right.

0:45:33 Andrew: Yeah also zero, so Yeah, zero seems like a smaller number than you'd think. So, in fact, um, two of the current FEC commissioners were appointed by George W. Bush. That is Democrat Ellen Weintraub, who's awesome, okay, she's been, she has been serving in her expired term since 2007, um, that, and you can do that, you can just say, like, oh yeah, your term expired, haven't nominated anyone to succeed you, therefore, uh, you, you can just keep going.

0:45:53 Thomas: Wow. Huh.

0:46:01 Andrew: Right, and independent Steven T. Walther, who has been serving his expired term since 2009, that is the only person that Biden has moved to replace, uh, he has nominated, uh, Daryl Lindenbaum, who is a Democrat, who has been confirmed by the Senate, uh, in uh what I can only describe as something that is inexplicable, um, good, the reason that Walther has remained untouched throughout the Obama administration is that, you, yeah, is he not eager to go after, uh, you know, I mean, he's an independent, right, so he has not been uh a reliable voice in partisan matters, um, but he's also not been, been lining up with the Republican cronies when they're trying to dismiss out cases, that's why, why those decisions have been three to three.

And so you got to have an independent on the commission. So people have been like, hey, I can work with this guy. I don't have a problem, replacing right, him with someone to the left. But I have a problem. I have a problem replacing an independent with a Democrat, because that will then give us three three Democrats on the commission, and three Republicans. And that means you have to replace one of the Republicans that we're about to talk about with with an independent, with a neutral, and not with somebody who is a member of the Democratic Party. So I would have used Lindenbaum to replace, say, Sean J. Cooksey, whose term expired on April 30th, 2021. And Biden Biden has not nominated anybody. Right. So. So his term expired three months after Biden got into office. We're a year and a half in and Biden hasn't nominated anybody to replace them. And so you have right

0:46:49 Thomas: Yeah. All right. Right.

0:47:36 Thomas: Why?

0:47:36 Andrew: Now three Republicans, Dickerson, Trainor, Cooksey, all appointed by Trump and all rubber stamping Trump corruption. And, you know, you can fix it. But again, most of these crimes now are about to roll off statute of limitations wise. So when I describe this

0:47:58 Thomas: Yeah. Do you get another bite at the apple? Like, let's say this commission, because it sounds like they, they didn't get the four vote. You need four votes to grant cert, whatever. You have four votes for this. If they decline that, can you run it back? Can you do it again? Or is that double jeopardy type thing?

0:48:14 Andrew: And in these cases, they they will close out the file. So I can't tell you that double jeopardy attaches to the administrative procedure here. I can tell you in practice that that those cases don't get reopened. And also, again, you are running up against statutes of limitation in terms of when the violations were committed. I'm going to end with, just so you know just how bad it is, I'm gonna end with is from the Broussard-Weintraub dissent. And again, does Joe Biden could have done something about this a year and a half ago. He did not. There's nothing we can do about it now. And to the extent that there are other cases in the pipeline, it's a kick in the ass to act yesterday. So here's here's an L.A. one job says former president of the United States, Donald J. Trump, is on a remarkable win streak before this commission since the 2016 election cycle.

0:49:05 Andrew: The FEC has received more than 40 complaints involving Trump or his committee. The committee's nonpartisan attorneys have recommended we find reason to believe Trump, his committee or family members violated the federal election laws alleged in at least 24 of those complaints, but we have investigated a grand total of zero of those allegations, zero. At every turn, Republican FEC commissioners have voted to block the pursuit of these matters, which have included allegations that Trump or his campaign committee accepted, accepted, prohibited contributions through Trump's role in the Stormy Daniels payoff, payoff allegations for which Trump's personal lawyer Michael Cohen went to jail, that the campaign illegally solicited contributions to a super PAC supportive of Trump, and that Trump solicited a prohibited foreign national contribution from Russian nationals.

0:49:55 Andrew: It also included a referral from the New York State Attorney General Tish James that provided the commission with a mountain of evidence supporting the allegation that Trump, his committee, and his family foundation exploited a charitable event for veterans illegally, using the foundation to benefit the campaign, campaign even in a case where the commission unanimously agreed that the parent company of the National Inquirer illegally coordinated with the Trump campaign to make payments to squelch negative stories about then-candidate Trump, we covered that in depth, Republican commissioners would only agree to enforce the law against the media entity and not the Trump committee.

0:50:08 Thomas: Huh? Wow.

0:50:31 Andrew: Those were important allegations that should have been pursued, but this matter takes the cake. The complaint in this matter alleged that Trump's campaign committee and a joint fundraising committee between the Trump committee, a leadership Pack, and the RNC misreported hundreds of millions of dollars in payments to two vendors controlled by Trump campaign staff. The commission's legal staff largely agreed, recommended that we investigate, instead, as they have done every time Trump or his committee or respondents, the Republican commissioners blocked us from moving forward on this matter. So I guess this is the very last nail in the "Stormy Daniels is a legal genius" coffin.

0:51:11 Thomas: Yeah. Stormy Daniels is a little genius. We just don't have laws is the problem.

0:51:14 Andrew: I it certainly never occurred to me that one administration could so thoroughly wreck the Federal Election Commission by, by just appointing hacks that don't care and will dismiss out every complaint against You.

0:51:31 Thomas: What, why have we not even nominated somebody? I thought you were going to say it's like, oh, you know, they're having to try to get judges through. There's only so many confirmations we can do. Not even nominating somebody?

0:51:42 Andrew: We've we've nominated one person, but we nominated that person to replace the independent, not to replace the pro-Trump hacks. That is exactly right. It is inexplicable. Something that does not give you gives you three Democrats on the committee, but not a majority, not a Three to two majority, already, not, a persuadable. Yeah, and now what you're gonna have to do is somehow find, uh, you know, an independent, um, you want to be mad at Joe Biden, you want to be bad at, at lack of action, uh, this is, a real area where they drop the ball.

0:51:47 Thomas: Someone who is already not terrible.

0:51:57 Thomas: Yeah. Does nothing.

0:52:13 Thomas: This is inexplicable.

0:52:14 Andrew: And think of all the difference that that could have made? Think of the difference that it would have made had laws existed. And while the committee was investigating the, the National Review, they were also investigating Donald Trump, right? While they were shutting down the Trump, uh, family foundation, uh, they were also investigating very publicly, publicly, uh, and ruling publicly, uh, with respect to, uh, you know, stealing money from veterans, um, it's a lot of what if, but goes it to show you, you know, what happens when you put folks in power who have no respect for the rule of law. And that's our, drumbeat from day one, we're gonna continue to hit it, but,

0:52:54 Thomas: Why are we the only ones yelling about this? And by we, I mean Andrew Torres. I haven't heard anything about this. I know there's a lot. I know we've got a lot going on, Andrew. There's stuff. There's COVID. There's whatever. This doesn't strike me as that hard to add to your list of things as the administration. Is something that it sounds like it's been a while. I because these are old issues, aren't they?

0:52:56 Andrew: Well, the the final decision in the MUR that I was discussing came out a couple of weeks ago, came out mid-June, right? That's when I put it on the whiteboard, got bumped back a couple of episodes, but I wasn't allowing it to get bumped back any further. But yeah, this is real stuff happening right now, correct, not by a long shot. Yep.

0:53:27 Thomas: I guess my point is not the first indication that there's a problem. In fact, that sounds like its one of the last indications because these are running out, right? This is bad. Somebody forward this episode to Joe Biden. Get in his earbuds when he's falling over on his bike. This will be what he's listening to. Please.

0:53:38 Andrew: Yep.

0:53:49 Clip: Thank you for being a friend, yeah, travel down the road with me, say we started from the bottom now we're here girl,

0:53:58 Thomas: And now it's time to thank our Hall of Famers, our all-time greats at patreon.com/law. And why don't you go first, Andrew?

0:54:05 Andrew: A big thank you to, oh, a Chicago live show, you bring the law talking guys, I'll bring the cheeseburger cheeseburger cheeseburger. The fat Jedi eating cake and drinking Emperor's Brewery beer in the Death Star canteen. Zach Bloom, at Daniel Duncan 4SC on Twitter, a state politician getting around ad rates one month at a time. Terry Cannon, Tell Morgan, Gatton Son Ray, they say Pizza School, the corgi is the Conrad Michaels of corgis, find out for yourself on Instagram. Legal Eagle is so handsome, is there an update on dissolving the NRA, the Smiths Crazy Animal Lady has given up on changing your Patreon name, just take my money, praise me, under Hamilton Budget Botanist is Pal is pausing Fiverr because of the PhD workload last week.

I feel like this has been last week for a while, but you know, it could be like a furniture store, yeah, reach out on Twitter for plant help and I'll try and get to you. Well, Budget Botonist has been awesome. Please offer any suggestions for a podcast that would read my Patreon name weekly, asking for a friend. Conrad Michaels loved Sparkle Donkey Funky Tequila. Isn't hearsay because it's an excited utterance. How could that not be exciting? Listener Thomas F. Matt Morrison. Stay safe. And remember, many police and military people are hardcore right wingers who wrote, who won't do the

0:54:37 Thomas: Wow, no, kidding, kidding, yeah.

0:54:54 Thomas: Yeah, well, they paused on this message, yeah, yeah, yeah,

0:55:24 Andrew: Right thing. One smart cookie cutters. Celebrating a Johnson free future in the UK with some tasty at Emperor's Brewery beers. Woo. GDT says everyone knows that the police can't arrest you without, page two of two, your consent, maritime laws, freedom menu, Ben Gazi and the buttery males, and Ledu, lesbian fabulo, taking away Thomas, oh,

0:55:32 Thomas: Timely. Thank, you to not a last week tonight producer Jennifer Chukowski, Supreme Court justices, I think it's court should have 18 year term limits, and so should Conrad Michaels. Well, yeah, I would have appreciated another, what, 12 years of Conrad Nichols, but, uh, that's, that's not in the cards. Sabrina Sturgeon is unicycling around the world, check out her Patreon at patreon.com slash unicycle the world. Edgy Veggie, Torsten Torsten two wolfies, peel, huh, EV Huntington, Harvard alum, no hood, that is an old joke that Clarence's Ginny and tonic now with more, so that's the joke is, what's the chemical, that's the, the in tonic, quinine, yeah, but it's like trying to do like Q-I-9, I think is what they're going for.

0:56:22 Andrew: Quinine Nice.

0:56:27 Thomas: I like it. That's great. It's just, I didn't know how to read it. Q-E-I, yeah. John Brown did nothing wrong. Elect Thomas Smith President, American Honkytonk Bar Association. Jurisprudence fetishist gets off on technicality. All he's funny. Don Quixote, don't laugh. Don Quijote may deliver you a swift kick in the ass. I learned the name in a book, okay. Pablo Escargot's heroin snails. Brian K., angry Mac face. Penelope is glad Sidney got sanctioned for tip-sickery. Leo G. is still waiting for a Seattle live show. So are we. That's, um, we're getting there. This is not the final octile. Do-do-do, do-do do-doo-do. No, this is just a tribute. Good mashup. April Poff, subtle apple pickle crackle. That is not as easy to read as you would think.

0:57:13 Thomas: Huh. And that was me saying that. Fred from Colorado. Colorado, keep Colorado an abortion access haven with LGBTQ legal protection. Support Colorado State House Dems. Absolutely. What are the legal steps for Minnesota to become a Canadian province? Asking for a friend. The Dows. Time for some dear old dad jokes. What do you call a group of whales with broken fins? A podcast.

0:57:36 Thomas: And Halster Goodwater. Thank you, top patrons. You're the best. We love you so much. Hope you enjoy the goodies. And thanks for making the show happen. Happen.

0:57:44 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:57:49 Thomas: And now it's time for T3BE. I tried to answer a question that was in a foreign language. That added a cool quirk to it. It was impossible. Let's see if I just happened to guess right.

0:57:55 Andrew: All right, so this was a real property question, testator, uh, I like how you envision them as you know devised his home to his son for life, then to my son's children and their heirs. His son is a 70 year old widower and had two children, one unmarried adult son and one unmarried adult daughter. The question is, in an appropriate action to construe the terms, the will, the court will determine that the remainder to the children is, and then your options are indefeasibly vested, Be, contingent, C, vested subject to partial divestment, or D, vested subject to total divestiment. Let's go quickly through what those are, right? You did a pretty great job, uh, of figuring out the terminology, right? So an indefeatable remainder, remainder. A remainder is a future interest in property,

0:58:05 Thomas: The artist formerly known as Testator. Yeah.

0:58:56 Thomas: Sure.

0:58:56 Andrew: So if I say, yeah, I'm going to leave my estate, you know, to my son, comma, and then to Thomas Smith, you right, have a remainder. And then the question in the law is, what kind of a remainder do you have? Example, example that I just gave you would be an indefeasible remainder, right? That is, can right now figure out that you will eventually have my estate, right? Because there's no condition precedent, there's no contingency, there's know nothing. It's just, you got away and you figured this one out, you got to wait for my son to die,

0:58:57 Thomas: Sure people tend to die.

0:59:33 Andrew: But but people tend to die with 100% accuracy. So that's not a contingency. And here, what we have is my son for life, then to my son's children and to their heirs, okay. So you can immediately rule out both A and B, right? It is not indefeasibly vested for the reason that is going to be connected up with the actual answer. So got to put a pin in that for a second. It is not contingent, there right, is no condition precedent. There was no contingency. And that is the way in which that happens is that person is either an unknown person or there's condition precedent a like we've talked about that before. Like I give you my estate so long as you use it for, you know, a scientific observatory.

0:59:34 Thomas: That happens usually.

0:59:49 Thomas: Nice. Right.

1:00:20 Andrew: Right. And you, you Know. Yeah.

1:00:20 Thomas: I kind of addressed that a little bit.

1:00:23 Andrew: Yep. Exactly right. So right, then the question is, uh, so if it's not contingent, it is vested, and the question is, is it indefeasibly vested, that means it cannot possibly change, or is it vested subject to either a partial or a total divestment? Okay, and the reason why it is not indefeasibly vested is because there is a partial divestment that could affect what gets to the children. And the bar loves to do stuff like this, right? They're like, oh, look, the son is 70 years old, he's a widower, hey, doesn't matter, next year, son, son marries Anna Nicole Smith, right, uh, and gives birth to a third child, right, well, now instead of each getting 50 percent, uh, of the total estate, now you got to split it one third, one third, one third, right? So there is, there are future children, right, Because it says, "To my son for life, then to my son's children and their heirs." So it's

1:00:30 Thomas: Yeah uh-huh. No

1:01:26 Andrew: A condition. I know this is crazy. It's not contingent because it'snot a condition there are already children there, but it is vested subject to a partial divestment because extra kids could come along. That's that's answer number c and you got that exactly correctly.

1:01:32 Thomas: I think I puzzled that out. Yeah. Wow. Really? There's I thought there was going to be a catch. Holy crap. Everybody celebrate.

1:01:44 Andrew: Nope.

1:01:48 Thomas: This is incredible. I, wow. I think I pretty much nailed. I nailed it. I guessed what all that stuff meant pretty much.

1:01:53 Andrew: You you did at And I want to unpack d just just to for completeness, um, the future child, you know, so let's say the Anna Nicole Smith baby comes around, right, that would not take away the entire gift, so it's not subject to total divestment, they will get something, but it might be less than they think right now.

1:01:59 Thomas: Uh-huh. Right. Yeah. Right? This is amazing. What the hell you

1:02:15 Andrew: One of the reasons you care about figuring this out is because, remember, property is a bundle of sticks unless prohibited by state law, you you can sell your stuff

1:02:24 Thomas: Could sell your sticks that you have and you want want to know how many, how many sticks you have.

1:02:26 Andrew: Yeah Yeah. Any any stick that you have, you can sell. And so when you have a vested interest in an estate that can be appraised and be sold.

1:02:36 Thomas: Someone who's buying it would, would want to know like, yeah, what is, what am I guaranteed here?

1:02:39 Andrew: Yeah. Could something come come around and reduce the value of this? So there you go.

1:02:45 Thomas: You know, people who haven't listened to us for a long time will probably think something suspicious in the fact that I nailed this impossible foreign language question, but people have listened for a long time know that I get routinely get stuff wrong all the time. That's, that's, uh, that's easy that I should get right. If I just, you know, we're allowed to like Google a single term. So uh wow, I need more excitement from you, Andrew.

1:03:05 Andrew: I am. I thought I was giving it properly. Properly like I

1:03:09 Thomas: This is I couldn't even tell from your read, I thought you were about to tell me that I almost got it but missed one single thing based on your tone.

1:03:15 Andrew: I I was dynamically building to a dramatic conclusion no, I'm super proud of you, yeah yeah that's right, can you have like, you know, John Williams Orchestra in the background. I

1:03:18 Thomas: I love it, I'll just add in the sound effects to make it work out that's crazy yeah wow that feels good, sorry, I just, I need to need to win, Andrew. I feel like I've missed a few of these in a row. Holy moly. Okay. Well, I mean, I guess we'll still say that there's a T3B winner among the crowd, but I don't know. I feels like I won this one, but you know, we'll find a T2B second place. And it looks like I'm in control of who wins this week, which is a big mistake. But since I am, I have to give a shout out first to L keyboards. The full name being low hanging keyboards says hashtag T3B based on my in-depth research. I chose a because 13th century Saxony should take a break. And there's a video attached, which I think is phenomenal because it has a picture of a magic.

The Gathering looks like a deck box and they are rolling a D20 to determine which answer they want to choose. And they divided up A, B, and C by essentially five. And They Ended Up With A. Well, that was wrong, but that was, I loved it. That was fun sending a video. There were a few right answers, but they were incredibly dry and boring and didn't acknowledge that I nailed an impossible question.

1:03:35 Andrew: Feel like you did too, yeah

1:04:31 Thomas: So I hated them. But here's a good one. At Jaeger Von Kass, says, I'm going with C for this week's T3BE because even a 70-year-old is legally allowed to have special time with a special woman resulting in a special child who would join his other kids in the group known as my children, thus partially divesting them of their inheritance. Well, that's perfect, explainer. Uh, so you are the, along with the Magic the Gathering D20 roller, who I think deserves a ton of credit for that. I love that. Uh, enjoy your never-ending fame and fortune. Fame and fortune definitely guaranteed all the time forever. And that's our show. Andrew, were you there when I got that bar question right? That was freaking incredible. Do you remember that? Do you Remember that time when when I got the bar question, right?

1:05:10 Andrew: You remember that time when you get the bar question that

1:05:15 Thomas: Yeah, so cool. Thanks for listening, everybody. Make sure to catch that hearing. And we'll figure out a way to maybe cover it even though the timing is they didn't discuss the timing with us. I wish they'd run this by us. But what can you do? So we'll see you next time.

1:05:15 Andrew: Was awesome

1:05:31 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:06:04 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.