OA616: The Final Jan 6 Hearing. OR IS IT?

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:18 Thomas: Hello, and welcome to Opening Arguments. This is episode 616. I'm Thomas. That's COVID. And that's Andrew. All three of us back together again.

0:01:27 Andrew: Oh, yeah. We've been passing around COVID like a bad penny between the two of us here. Other than that, other than, and I know that's a big other than that. How you doing, Thomas?

0:01:34 Thomas: Well, I mean, Steve Bannon, got a very quick guilty verdict. So I mean I can't be doing that badly, right? I mean just already the baseline is high just because of that. That is nice. Can't wait to talk about that. How and also there's some Jeff Clark news, I can't wait, we better get to, do you have any any announcements, or are we jumping in?

0:01:54 Andrew: No, let's uh, both feet in the deep end of the pool.

0:01:58 Thomas: Okay, let's do it.

0:02:00 Clip: Arrest a husband and wife for the same crime. Yeah, I don't think that that's true, Dad. Not that we're still...

0:02:10 Thomas: Bannon didn't even offer a defense, which I know is not unheard of or anything, but, seemed uh, odd. This is, I mean, what would the defense be when you were called to whatever, testify or whatever you call it and you didn't, there's not, I'm not sure what the defense could buy. Aliens came and got me, I guess would be, he could have gone with that, but yeah, no quick Quick verdict, same day, within a few hours. What can you tell us about this, what seems like great Bannon news?

0:02:19 Andrew: It It's great and. It should put a lie to the folks who think, and I don't mean, you know, the the total tinfoil hat, that conspiracy theorist. But the people were like, well, nobody is going to suffer any consequences from that. Well, look, Steve Bannon's going to jail for, and again, I get one to 12 months is not a huge deal. Steve Bannon's going into jail. That's a good thing, this is also an illustration of the folks who said, well you know, why do you have to keep keep showing willfully, willfully. Like, you know, when I drive, you know, 73 in a 65, the cop you doesn't say, were you intending to go 73? And, you know, that's true. But I wanted, I think this is a really good illustration of, yes, proving willfulness is a challenge or can be a challenge in a criminal statute. It. But also can be totally straightforward, even when you don't have access to someone's head, right?

0:02:50 Thomas: Yeah, yeah. Mm-hmm.

0:03:31 Thomas: Well, is this a thing where you'd need, I mean, isn't this a they called you, Congress called you. You rejected it, right?

0:03:34 Andrew: It No. No, no, because look, you don't want to put somebody in prison who, you know, they didn't get the letter right, like. So 18 U.S.C. 192 says, every person who, having been summoned as a witness by the authority of either House of Congress to give testimony or produce papers, blah, blah, blah, and who willfully makes default or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall guilty of the misdemeanor, right? Punishable by fine and one to 12 months in jail. So that's, he could argue, right, all, saw his lawyers sort of frustrated, responsibly, why are we even here if I can't put on any defenses, right? Know? To which the the judge, a Trump appointee by the way, was like, right, I don't I don't think you understand the implications of that sentence there, uh, Steve Bannon's lawyers.

0:03:43 Thomas: Right. Yeah. It was devastating for my case. It was like that, yeah, mm-hmm,

0:04:31 Andrew: Right. Right. Yeah. Um, they had to prove that he willfully defaulted. It was obvious that Bannon was never going to take the stand, right? Putting on zero witnesses is not uncommon, that is like, you know, the defendant not taking the stand.

0:04:48 Thomas: Again, what witness would you put on, On, I guess, your mom, who's like, yeah, he was very busy boy during that time, couldn't come.

0:04:50 Andrew: Right. Yeah. Yeah, I look, in order to show you did not willfully fail to show up for the subpoena, you would have to show that it's some kind of mistake, right? That's what the law is. And so saying, I don't understand how I could be forced to be here and, you not give any irrelevant defenses about how Nancy Pelosi has a vengeance against, like, again, that's just what happens when you break the law. So.

0:05:20 Thomas: Yeah, so it's as simple as, gonna serve up to a year or three or something, or

0:05:25 Andrew: It is not more than than 12 months. And and I want to be clear, unlike some of the other misdemeanor statutes, which say punishable by a fine of not more than $1,000 nor less than $100, okay, that means nothing. It then says, and imprisonment in a common jail for not less than one month, not more than 12 months, right? So he's not going to get just the fine, he's going to jail, and I, I love that, you should love that.

0:05:40 Thomas: Yeah, I Mean I feel a little bit bad for the jail, just like the other people they're, I imagine they've, they try to screen for certain things that you might bring into a prison, jail setting, you know, fleas, lice, ticks, uh, leprosy, whatever, whatever, he, yeah, waves a wand over him. Oh, there's a lot of Steve Bannon on this one, holy crap. All, then also Jeff Clarke is uh, hit with something. It must be, was he hit with uh, there's an oil spill and so we need you now, finally.

0:05:56 Andrew: Oh, God, This is Steve Bannon No, even better than that, he was hit with uh, disciplinary docket number 2021-D193, in the matter of Jeffrey B. Clark, Esquire, disciplinary proceedings instituted by this petition for violation of the Washington, D.C. rules of professional responsibility governing appropriate conduct by lawyers, and in particular, violating rules 8.4a and c, attempting to engage in conduct involving dishonesty, and that would seriously interfere with the administration of justice. And. And that charge is a direct consequence of having drafted up that bogus letter to send to Georgia and other states saying the Department of Justice has found serious evidence of voter fraud, and, you know, blah, blah.

0:07:16 Andrew: And no, they had not. Right. And this is, you know, a telling instruction. Again, Jeff Clark, environmental lawyer, not even Rudy Giuliani. Right. Like this guy is not, that does not have, you, a bright career among Mega idiots to go back and pander to. You know, this is not even Sidney Powell. This is somebody who was expecting to kind of quietly go back into private practice, you know, defending companies that dump pollutants into the water, that sort of thing. And um, I would love to see that taken away from him because he was an active co-conspirator, he attempted to subvert the election, and uh, I'd like to see criminal charges against Jeff Clark, but you stripping him of his law license is a pretty great first start, so we're going to be following this uh, very eagerly, again, uh, you, these are charges that have been brought as of July 19th.

So you have the right to defend yourself. This is not, again, to contrast with what New York did. New York preemptively, as an injunctive relief, suspended Rudy Giuliani pending the evaluation of his case, which I told you at the time I'd never seen before and still have not seen, right? Like, so, so Jeff Clark is not uh, currently suspended uh, pending the hearing, but but the charges have been filed, he will have to answer for them, and again, this is going to be a Steve Bannon case, right? Like, I, I don't think he's going to be able to show that he didn't write that letter. Um,

0:08:10 Thomas: Right. Yeah.

0:08:49 Andrew: And so, you know, it's it's tough to imagine what his defense will be.

0:08:53 Clip: Treason is treason.

0:08:58 Thomas: And now it's time for hearing number eight, I believe it was. Yeah, this was this was a fun one. I'm I always learn so much, Andrew, when you break these down for us. So as usual, we've got some clips. We're going to to get Andrew's breakdown. This one really did shine a light on however the, many hours, I don't know, four to eight, however many years it was that Trump was kind of unaccounted for previously and really went into his day on January 6th and no, no catch up in this one. So a little bit of a, yeah,

0:08:58 Andrew: Uh-huh, I I wanted when we saw the graphic rendering of the White House dining room, I

0:09:31 Thomas: I thought there really should have been a catch up. What if they, okay.

0:09:34 Andrew: Wanted to see a ketchup stand there.

0:09:36 Thomas: That would have been an all time. Like I get that it's Congress, you know, It's got to be official and all, but had they put a catch-up plate? They had the Fox News that was on the TV. That was a cool touch. They literally, in the animation, put a ketchup plate next to that. Oh my God, how funny would that have been?

0:09:36 Andrew: Yep, Yep,

0:09:57 Thomas: Real missed opportunity, so we didn't get that.

0:09:57 Andrew: We didn't get that, yeah, no, that, that's right,

0:10:00 Thomas: That's my biggest criticism of the committee thus far, actually.

0:10:00 Andrew: Um, I I think that is the only substantive criticism criticism one could make of the criticism so far. So yes, 187 minutes is the theme of this hearing. That is three hours and seven minutes in which the president did nothing, having been informed of the violence at the Capitol, having got informed that rioters had breached into the the Capitol. We're trying to kill the Vice President. The question I got as the committee hearings were unfolding, and in the immediate aftermath over and over again, was, OK, this hearing was about inaction. Is there a separate criminal offense for inaction?

0:10:51 Andrew: And some people you know, kind of quoting the Seinfeld finale, right? There's no such thing as a guilty bystander. That's the whole definition of bystanders, right. Here's my top line view, I have been through, I'm going to talk about once again, the three criminal statutes that I think are really on the table for Donald Trump here.

0:11:10 Thomas: Can I provide a guess while we're at it, now, that, I think about it, even if there isn't some special crime that didn't do something, when you could, guilty bystander, etc, etc, I guess this would be, what it's always the theme we come back to, this would be more mens rea evidence, because it's like, if this thing happened and you had the ability to stop it and you didn't, I feel like that, that takes away a bit of the defense of, oh, I never intended for that to happen, right?

0:11:12 Andrew: Sure. Yeah, Thomas, maybe we can stop, stop the show, because I think your evolution to lawyer is now complete, or. I think that's exactly right, right? So look, let's start with the big kahuna, this right, is the one that I am waiting to watch the January 6th committee put the final pieces together of, and that is 18 USC 2384, that's seditious conspiracy, that's the crime I want Trump charged with, because that's what he did, right? He engaged in conspiracy to overthrow the government of the United States, and so here's, here's how that statute reads, I know we've read it a bunch before, But

0:12:12 Thomas: I could always use another reading from the great Andrew Torres of my favorite statute.

0:12:12 Andrew: Yep. It's like cuddling up with your child's favorite Book at night.

0:12:19 Thomas: I read Lord of the Rings once a year. I might have you read me the statute once a years. Once from now on.

0:12:21 Andrew: If two Or more persons conspire to overthrow put down or destroy by force the government of the United States or by force to prevent, hinder, or delay the execution of any law of the United States, they shall each be fined under this title or imprisoned not more than 20 years, or both. Okay, that's a big, serious felony. The key element is the requirement that the actions undertaken be by force. I would argue that you cannot omit by force, right? Right. You you cannot watch somebody undertake violence in your name and do nothing about it and have that count as fulfilling the elements of 2384. And I've read, I believe, every 2384 case. They're not that many of them.

0:13:11 Thomas: Hmm. Yeah.

0:13:19 Andrew: It doesn't get charged that often. So if you can prove, right, this is different than if you can prove that Trump wound up the Proud Boys, Knew right? What they were going to do and deliberately instructed them to go to the Capitol. That's not an omission. That's an action, right. That is no different than I call the hitman to murder somebody, the right fact that it's the hit man doing the murdering does not get me off the hook when I say, well, I didn't pull the trigger. No, I hired the hitman. And so the question I've been asking myself through all these hearings is, do we have enough evidence to believe that Trump hired the hitman?

0:13:58 Andrew: I am too. I am, too. And I do not think that omission proves that you've hired the the hitman that is Well, I know that the hit man is going to murder so and so and, you know, I failed to you know, tackle him at the legs or

0:13:55 Thomas: Yeah. And I'm worried about that. I don't know.

0:14:08 Thomas: Yeah. Hmm. Hmm. But if you Were in the same room as a hitman and you made a suggestive statement that was like, ah, boy, sure would be great if somebody marched down to Washington and took our government. Me, you gotta, you need to have, you gotta fight or you're not gonna have a government kind of thing, and then the hitman is like, oh okay, I think he's telling me to go hit a man or whatever hitmen do, uh, and then they do that and then you're, you don't stop them, that's Maybe that builds that, that case, even though there's not a direct, there's no Venmo transaction that we can find from Trump to Proud Boys, please do one insurrection, right?

0:14:17 Andrew: Yep. Yeah.

0:14:52 Andrew: No, if, the hitman texts you a selfie with, you know, a giant upraised knife behind the victim and a big smile, smile on his face, Right, and then you tweet out like, just got the best selfie ever, right, like, yeah, you can kind of put those pieces together. So, so here's how we do, I think you were exactly right that the inaction is not going to be criminally, it's, it's not going to be the basis for criminal culpability in and of itself, it is going to be used to prove corrupt intent. And I keep talking, talking about the hard case, which, right, I think the committee wants to make, that is the seditious conspiracy, 2384. The fallback are, I think, crimes that have already been made. So let's go quickly over those two. That is 18 U.S.C. 371. That is Conspiracy to Defraud the United States. It says if two or more persons conspire to defraud the United States for any purpose, and And one or more of such persons do any act to affect the object of the conspiracy.

0:15:02 Thomas: Right.

0:15:59 Andrew: Each shall be fined under this title or imprisoned not more than five years or both? So lesser crime very clearly met here. Trump and everybody else involved in January 6th was conspiring to prevent Congress from, in that joint session, certifying or at least to delay the certification of the electors. That counts as defrauding the United States, right? Because every time you have to deploy additional resources and reschedule a meeting, right, that they've spent money, and by right. The way, again, I can't say I've read, there's a lot of 18 U.S.C. 371 cases. I can say I have read every 18 U.S.C. 371 case. I've written a lot. I've heard them and they are very clear that, that so long as you are interfering with a legitimate governmental function that is defrauding the United states. So that's 18 U.S.C. 371. That is, you have to prove that they conspired. Well, you know, conspiring requires willfulness.

And this inaction in the face of everyone around you saying, please, Mr. President, do something to stop the violence and going, well, I kind of like the violence, will right? Help establish that element. And our good friend 18 U.S.C. 1512 C.2 obstruction, whoever corruptly, and that's the key word here, obstructs, influences, or impedes any official proceeding or attempts to do so, will be fined under this title or imprisoned not more than 20 years or both.

0:16:27 Thomas: Yeah.

0:17:26 Andrew: So again, serious felony, 20-year maximum, and seems pretty clearly met already. So even if we never get to seditious conspiracy, conspiracy to defraud the U.S., obstruction, these are serious felonies. These are not Steve Bannon-level, you didn't show up for your subpoena felonies. Um, but, again, I think the January 6th committee very clearly wants Trump tried for seditious conspiracy. They keep using the language of the statute. And as we learned, uh, from the outset, maybe our, our first clip to queue up at nine minutes in, uh, we got the, uh, it's not quite a bombshell, but we got the development that their, um, work is not yet done. Yes.

0:18:13 Clip: Our initial hearing the chairman and I described what ultimately became Donald Trump's seven-part plan to overturn the 2020 presidential election, a plan stretching from before election day through January 6th. At the close of today's hearing, our ninth, we will have addressed each element of that plan. But in the course of these hearings, we have received new evidence and new witnesses have bravely stepped forward. Efforts to litigate and overcome immunity and executive privilege claims have been successful, and those continue. Doors have opened, new subpoenas have been issued, and the dam has begun to break. And now, even as we conduct our ninth hearing, we have considerably more to do.

0:19:02 Clip: We have far more evidence to share with the American people and more to gather, so our committee will spend August pursuing emerging information on multiple fronts before convening further hearings this September.

0:19:17 Thomas: Jeez, when... Eventually this has to come to an end, right?

0:19:19 Andrew: Does I wanted to get kind of your top line thoughts on that, right, we've got to get more information, but you, me, your reaction to "we've got more work yet to do."

0:19:32 Thomas: Well I guess it just really depends on what that is. If You you string out hearings to the point where they seem like Benghazi hearings, and you you're just transparently trying to keep it in the news, I think I think people are going to resent that probably. But if there's major stuff like if this is and this so far, each hearing has had major things in it. There's a little bit of repetition, but I think that's necessary to really hammer home what happened. But yeah, I mean, if it's, if it's real stuff, if it's evidence, um, uh, go right up until the midterms and then, you know, I we need to keep this in our heads and the pot, the public needs to keep this in their heads somehow amidst all the other stuff going on.

0:20:12 Andrew: Yeah. I, I agree with that. The thing that I want to emphasize is delaying continuing hearings until September, in my view, makes it a virtual certainty that you will not get top line indictments in August. From the DOJ. Right, so if you were waiting for Donald Trump to be indicted, um, you're, now waiting longer.

0:20:37 Thomas: Hmm. Well, hold on. Hasn't the whole thing been That this, that they're definitely independent, Merrick, you, Garland's not using these hearings to conduct his investigation. I mean, is that definitely true, is DOJ, like, you secondary to this process, and Is waiting, yeah.

0:20:50 Andrew: So here's what Garland has said, his AUSAs are watching these hearings, which I think was a little bit of dramatic understatement, right. There have been criminal referrals from the 1-6 committee to justice, right, requests to act. Bannon indictment, for example, was a direct referral from the the committee where they said, please act right now. I think in the absence of a specific referral, the rule is that the DOJ can independently indict, but I think they would decline to do so because of exactly what you said, right?

Because these are running independently, the decision right, makers are separate, they are not coordinated, they And let me say by not coordinating, that means they also don't get together and say, okay, well, how about I indict this guy here and we'll do it right before the next hearing and that'll really make it dramatic? Those are the kinds of things you don't want your Department of Justice to do. You don't want them cooperating with Congress for a political effect. So my belief is, this is the reason that I said it that way, if I were Merrick Garland, I would not indict Donald Trump until the January 6th committee has said, okay, we're done with this. Or until

0:21:48 Thomas: Huh. Right.

0:22:06 Andrew: They send me a criminal referral. Because a criminal referral is, okay, this could interfere with us, but we think that is now beyond our power. We can civilly litigate when Mark Meadows says, I don't know that I'm required to show up. But when somebody just says, oh, I'm not showing up, uh, know, that's, that's now leaving aside the, you know, 1937 marshal of the, the Congress or whatever, but, but that is now the committee saying, okay, this has gone from being a legal matter, uh, subject to Congress, to being a criminal matter subject to enforcement by the executive branch, please, your bit, right, please indict this guy if you can't. And that's my belief of, of what the DOJ will do. And so if you were sitting here saying, OK, well, I'm going to give you until August, but then it's time to show up with pitchforks and torches outside of Merrick Garland's house, well, you're going to have a rough August.

0:23:01 Andrew: I don't think that Trump is going to get indicted in August. That is not to say that folks lower down the food chain from which we have all All of the necessary evidence, right? Jeff Clark, they might indict Jeff Clark right now, I don't right. Know. They might indict John Eastman. It certainly looks as though the 1-6 committee is done with Eastman, they've got everything they needed to get out of that guy. Guy.

So you could see some of those indictments, but you could also see a pretty cautious institutionalist person saying, look, I don't want to interfere with the January 6th committee hearings. And if I do that, if I issue an indictment, classic example would be DOJ if were to indict Mark Meadows right now, well, you could say how that could interfere with at the January 6th evidence gathering, Because right? He might still voluntarily sit. But if he is the target of an indictment or the target of an ongoing investigation or the subject of an indictment, there's no way he's going to sit down. He'll sit down And say fifth, fifth, fifth, or just nothing at all, so right, that's the balance that they're looking for right now. About to go into Liz Cheney playing the Mitch McConnell clip, uh, and also sort of reminding us where we were on January 6th, and I thought this was really, really effective at this hearing because, look, we've had 18 months of Republican gaslighting and I like Even I forgot, you, reactions by people who almost got killed by, you know, Trump, Trump flag wearing Crazies

0:24:01 Thomas: Yeah. Yeah. Yeah. Talk About excited Utterances, this Is right After it happened, we got almost, I want to to say almost a week of reality out of some Republicans Before It, yeah.

0:24:35 Andrew: Yeah, yeah. Exactly Right, yeah. How How Fun Was that, yeah.

0:24:46 Thomas: Yeah, vice

0:24:49 Clip: About the president's plans and actions to overturn the election than almost all all members of Congress did when President Trump was impeached on January 13, 2021, or when he was tried by the Senate in February of that year. Fifty-seven of 100 Senators voted to convict President Trump at that time, and more than 20 others said they were voting against conviction because the President's term had already expired. At the time, the Republican leader of the United States Senate said this about Donald Trump. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his lies, and screaming their loyalty to him. It was obvious that only President Trump could end this.

0:25:34 Thomas: President, oh.

0:25:44 Thomas: Deep fake, yeah, well done, uh, committee, I can't believe you Got McConnell to have a backbone for a second, oh no wait, he did, for like five seconds, yeah.

0:25:47 Andrew: He Actually did, we got, I, I took down, because, uh, this was, uh, one of our Twitter followers, and I think t3b winner lawful copter who wrote, 57 votes in the Senate to convict and another 20 who said they would acquit only because Trump wasn't in office, uh, wow, Trump has managed one of the most bipartisan votes we've seen in a decade, uh.

0:26:12 Andrew: Which, uh, which I thought was funny, was, uh, but also telling, right, on that date there really was, I, I, I think, uh, the kind of political will and energy to say, okay, you know, this is, this has gone Too far I Know, yeah.

0:26:28 Thomas: And Yet They stopped Short, they're, so why Why did they, they stop? Sure, they could be done with this problem, it's a bunch of people who think they're going to be president someday, the Marco Rubio's and the Ted Cruz's, was such bullshit as an excuse at the time, well, he's not president anymore, yeah, the point was he could never be elected again if You impeached him If you convicted, well

0:26:46 Andrew: And And You're dealing with at that right now, congratulations, yeah, I still do not understand, I, I don't know that we will ever understand until, you historians get some kind of access to Jared Kushner and Ivanka and Don Jr. and somebody who's going to tell them, uh, uh, the things that are buried, um, I will never understand the hold that Donald Trump managed, the stranglehold that he managed to achieve on the Republican Party, um, but, but I thought that this was sort of the, what you just heard playing the McConnell clip, uh, if you queue up 1828, this is, this is the 187 minutes thesis, and I think the whole idea here was to get any, everybody watching this to say, hey, do you remember where you were on January 6th? I mean, that's right, not quite a, do you Remember where you were on 9-11, but like, I do, like, I was watching this on the TV, I was texting you

0:27:40 Thomas: I think we had a live Stream, well, because, wasn't This the same day that we found out that we won Georgia somehow? That's my memory of it. Because Because I remember we were on live and I expressed that it was like a good news day ruined by the most like disgusting, horrible thing that ever happened. That's my memory of it.

0:27:42 Andrew: Yeah. Um Yeah.

0:28:00 Andrew: But remember we went live after the Capital had been breached, right? Yeah, so yeah, I had the MSNBC playing on the TV behind us, it was it was was kind of at the point in which the Capitol had been cleared out and tide had turned, which by the way, I thought was also really effective. We're going to have a later clip of that in sort of saying, yeah, Donald Trump sat around for three hours to wait to see what happened. And it was only after it was clear to everybody that, okay, that some semblance of the the rule of, you know, of of order has been reinstated and reinforcements have been sent out and, you know, these guys are not gonna, like, take over and occupy the Capital, like this is, you know, Clive and Bundy occupying a bird sanctuary or whatever, like we're we're clearing these people out, and it was only at that point that, you know, Trump was like, "All right, fine, I'll I'll reluctantly send a message to these brave heroes and patriots."

0:28:03 Thomas: Yeah. Yeah.

0:28:58 Andrew: That they can go home with their head hung high, you know, in any event, 1828 is, is I thought kind of the thesis of, of this hearing.

0:29:06 Clip: From the time when President Trump ended his speech until the moment when he finally told the mob to go home. A span of 187 minutes, more than three hours. What you will learn is that President Trump sat in his dining room and watched the attack on television while his senior most staff, closest advisors, and family members begged him to do what is expected of any American President. I served proudly for 20 years as an officer in the United States Navy. Veterans of our Armed Forces know firsthand the leadership that's required in a time of crisis. Urgent and decisive action that puts duty and country first. But on January 6th, when lives and our democracy hung in the balance, President President Trump refused to act because of his selfish desire to stay in power at

0:30:01 Andrew: That's the case that they were making. If that's the case you were trying to make at this hearing, I felt like they hit the target, right? I, I, I would have liked that we focused and we'll continue to focus in this episode on the new pieces of evidence that came out. There was a lot of repetition, right. There was not another sort Cipollone flipping or something like that. But we did learn some new things. The other thing that I kind of kept in the back of my head, I'm sure you did the same thing, was this was on the heels, as we discussed on our Friday show, of the spoliation or, quote, missing evidence from the Secret Service. And so every time there was Secret Service testimony, I was like, oh, that's part of what they could do. So the first bit of that that really hit my radar comes out at 3317.

0:30:41 Thomas: Yeah. Oh,

0:30:55 Clip: Motorcade waited at the White House for more than 45 minutes before being released. The committee is also aware that accounts of the angry confrontation in the presidential SUV have circulated widely among the Secret Service since January 6. Recent disclosures have also caused the committee to subpoena yet further information from the Secret Service, which we've begun to receive and will continue to assess. The committee is also aware that certain Secret Service witnesses have now retained new private counsel. We anticipate further testimony under oath and other new information in the coming weeks.

0:31:34 Thomas: Yeah. I was going to ask you, what do you think? What does that mean exactly? Is that good? Is that bad?

0:31:37 Andrew: That's very, very good. Look, if I were of the Secret Service, if I were somehow connected to this administration and wanted to be a friendly witness and were subpoenaed to testify before the 1-6 committee, I would hire a lawyer, Because I'm right? Surrounded by criminals and even if I'm pretty sure I didn't do any criming, I need someone there to watch my back. You saw Pat Cipollone did that. And his lawyer is basically there to sit and kind of nudge him every time he might accidentally describe what advice he rendered to President Trump. So the fact that Secret Service agents are retaining their own private counsel, appearing before the 1-6 Committee, getting ready to give testimony, that is an unambiguously good thing, and we saw from the introduction part of that question that, yeah, as you start to think about it, you're like, oh yeah, the Secret Service were everywhere. And so when you're trying to confirm things like, right now in right wing land, their argument of, oh, the president couldn't have possibly tried to, you know, grab the wheel or choke somebody, like, like, take a look inside the beast.

0:31:54 Thomas: Yeah.

0:32:50 Andrew: Like, he'd have to have had, you know, had to, he'd have to have some kind of mechanism to lift up the screen that says only the president could lift up the screen or whatever, right? Like, they've made these series of dumb arguments to say it didn't happen. Well, what happens when you get a member of the Secret Service that says, I absolutely texted Agent Smith and just said, I watched the president try and choke a dude, like, what the hell is going on, right?

That there is absolutely no, I mean that's the best kind of evidence, right? Like, your job is to protect the president, and you know there's an ancillary, uh, reference to that that confirms the facts, you know, the adverse facts, that that that kind of a witness is impossible to impeach. And so I love that. And also, you know, if you're looking into this spoliation, getting right, Agent Smith off the street and saying, yeah, no, I sent 52 texts on the day of January 6th because I went back and counted them and have no idea why they were deleted, why they were not produced.

That can help you in terms of, I am sure there's a separate investigation going on with respect to just that. So, [0:34:04] 8-AUDIO: the Jordan Harbinger Show. I'm sure you've heard me mention it If you need a new podcast, and let's face it, the average person has six shows they listen to. So maybe that's you. Maybe you could use another one. Well, check out Jordan's show. It's entertaining, informative, and packed with plenty of stuff to learn. Right. I've told you about some politics ones. I told you about Russia ones. I've talked to about a bunch, but a really cool thing happened.

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0:35:27 Andrew: I thought the other really interesting piece, and I'm curious if it struck you this it was Representative Luria introducing into evidence that the White House call log shows zero telephone calls for eight hours between 11.06 and 6.54 on January 6th. And as soon as that came up, I tweeted out like, think that people aren't understanding the significance of that. That is an indication that stuff has been covered up, right? The president does not go eight hours without talking to somebody on the phone. The president doesn't go three hours without his closest staff knowing where he is, you don't right, just put like three hours hid out in dining room, that, or the fact that that was scrubbed means that scrubbing happened, and as we have evidence from Rudy Giuliani's phone records that, in fact, he spoke to the president at 1:39, so right, in the middle of this, all the calls are supposed to be logged, and we know of multiple calls, beginning with the call to Giuliani.

And I talked about this on last Friday's episode, what, right, do you do when people are covering up evidence? Well, you go to the other sources of people who might have received those documents or might otherwise be able to corroborate it. And thankfully, Rudy Giuliani is an idiot.

0:35:42 Thomas: Yeah. Yeah.

0:36:49 Andrew: And we have a ton of his evidence. And so, yeah, I mean, he probably bragged to the 1-6 committee. Yeah, I was on the phone with the president all day. He's dumb enough to have done that.

0:36:58 Thomas: Yeah. I wasn't sure as the non-expert what that meant. It almost sounded like they were suggesting that he was on, I don't know, his own personal phone or burner phone or something. I didn't understand what they were getting at. But you think it's that they just didn't log the call or deleted that they had logged the call?

0:37:18 Andrew: Could be either. I do not know. All I would say is that inference of that eight-hour period of total blackness is either that there were official calls and that those were then scrubbed from the record or that there there were unofficial calls that were made, which then become, you a violation of the Presidential Records Act, from burner phones, from whatever. And, the committee knows this.

0:37:20 Thomas: Okay.

0:37:44 Thomas: Know that that's not a huge crime. But, like, maybe by the time this is all done, we could get him on enough little crimes to put him away forever. Enough violations of the Records Act. And, you know, not to mention some light treason and some witness tampering and all that stuff. Could we just nickel and dime him up to, like 150 years off of this stuff? Is that possible?

0:38:07 Andrew: Let's go for that, the practical perspective again, you know, is is 18 U.S.C. 371 seems like a no-brainer and that got a five-year mandatory, you know, how how long is Trump gonna hold on, you know, with his McDonald's for 18 meals a week? Like, I just, I don't know.

0:38:26 Thomas: Forever.

0:38:26 Andrew: Yeah, they all they seem to do that, okay, next clip. I, this is about, uh, when the "hang Mike Pence" chants were being relayed back to the White House, right, and, and this was the response. And I want you to think about, from our last couple of episodes, how equivocal this testimony is about Meadows. Mark,

0:38:27 Thomas: Because we don't live in a just world. All

0:38:50 Clip: My view of that event is outrageous and for anyone to suggest such a thing to the Vice President of the United States, for people in that crowd to be chanting that, I thought it was terrible. I thought it was outrageous and wrong. And I expressed that very clearly. In respect to your conversations with Mr. Meadows, did you specifically raise the concern of the Vice President with him? And how did he respond?

0:39:19 Andrew: We did not edit in this silence.

0:39:22 Clip: I believe I raised the concern about the Vice President. And again, the nature of his response to that was not the comments that I had received. People were doing all that they could. And

0:39:33 Andrew: So this is Pat Cipolloni. And you have to understand, contextually, he's saying the chance of "hang Mike Pence" were coming down. Everybody at the White House was terrified and against the violence. And then the follow-up question is, everybody, what about Mark Meadows? And there's like a six second pause before he answers about Mark Meadows, because, again, as we have said, that there's still a carrot out of this for Mark Meadows, but there are a lot of sticks that are lining up, right? And this testimony, you can hear Pat Cipollone going, all right, well, how bad do I want to throw Mark Meadows under the bus here because, uh, because it's bad, because he says, we're, we're doing everything we can. It was the best possible spin that they could put on it. And little, and then, and then we get the, uh, security assessment that

0:40:21 Clip: That last picture you showed did you say the campus at that time?

0:40:45 Clip: You had a baby who was in college. Was it college? Do you?

0:41:07 Clip: Do you? And did you show that in the video? What was the response by the agent to the test case? Did you tell him? Did you tell him? Did you tell him? Did you tell him? Did what, what prompted you to put it into action?

0:41:54 Clip: We

0:42:01 Andrew: That background detail of members of the Secret Service getting on the radio for restricted communications and saying, hey, you tell my wife I love her, I, hard to imagine kind of, you know, something that would be more moving, uh, testimony than, than that. I don't, right I don't know how you could portray that in any other way other than, well, I, I knew when I took this job that, uh, it required putting my life on the line, didn't expect it to be like this. And, um, you, tell my wife goodbye, tell, tell my kids, you know, kiss my kids for me. Like that is, that's powerful, powerful stuff. And it is juxtaposed against, juxtapose what the president was doing at this time, which is calling Republican senators and saying, hey, what do you think about objecting to the count?

0:42:50 Andrew: Tuberville, again, to this day, one of Trump's biggest supporters, said, and, and so I had to say, Mr. President, we're not doing any business right now, now because your supporters are trying to kill me. And by the way, they're about to evacuate me from the building. So I've got to go, got to buy, click, right? And then that merges into one the clip you have definitely seen from this that serves no legal purpose Whatsoever, but great opportunity to pay some Yakety Sax royalties to Josh Hawley bravely running away. I will never tire of those gifts, so, uh, please, keep them coming there. But literally was no purpose to showing Josh Hawley given the fist and then

0:43:14 Thomas: Right. Yeah.

0:43:29 Thomas: Yeah, so it's not part Of any grand criminal story you're building. That's just, hey, look at this a-hole who egged the crowd, and then, you, that led to its obvious conclusion, is running with the rest of them to the hidden bunker that all of them hid in to for safety. Yeah, no, that's, there's no, that doesn't help the case against anybody really, it's just like, f this guy, is what you're saying. Yeah.

0:43:32 Andrew: Yeah yeah That's exactly, that's how I interpreted it, uh, but this, this testimony I think really I is useful in the case. This, this is Sarah Matthews, one of the, the two witnesses that we talked about. The witnesses, by the way, we're, we're more sort of confirming the story of events, right? Like, we didn't, this was not like the Cassidy Hutchinson, where we got a lot from them but yeah

0:44:13 Thomas: I think what we got from these witnesses was, for one, they, they are friggin' Republicans, you, the one, one guy is like the foreign policy in Trump's administration until the day, until January 7th. You know, so it was like, again, with a lot of these people, these are not rhinos. These are not, you Nancy Pelosi's friends who she's getting to do this. This is these are people who were in the administration that day. We're still like, yeah, no, I'm still still working in the Trump administration on that. That day and they both resigned, you that day or the next, I think one of them that day and one of the next day, but still they were there until then. These are dyed in the wool Republicans, uh, previously very Trump devoted Republicans.

And think, I feel like that was the main thrust of what I got from them was just like this, this one guy was really into Trump's foreign policy and was, you Know, like talking it up and, wow, we dealt with this thing. Trump really, uh, made a blah, blah, itS um, pretty amazing to consider that these people are, are here right now, that these you people who are strong supporters of

0:44:34 Andrew: Yeah

0:45:20 Thomas: The Trump presidency up until that day are, are testifying. It's, it's, it's amazing. Know, it's even I Mike Pence isn't there and he was almost killed.

0:45:25 Andrew: Yep And so to be clear, the, the person you're calling foreign policy guy is Deputy National Security Advisor Matthew Pottinger. And yeah, boy, did he trowel it on thick in ways that was tough, tough to watch. And spokesperson Sarah Matthews, who is a Kayleigh McEnany protege, right? Like, so, yeah, one of the most reviled White House communication directors in history, this is her best friend, And somebody who thinks that the Trump foreign policy is, you know, a legacy like John Bolton is like, you guys have no idea what you're doing. So, yeah. That's right. Let's go to one thirty four twenty five. So,

0:45:34 Thomas: Mm hmm. Yeah. Yeah.

0:46:08 Clip: Were in a room full of people, but people weren't paying attention, and so she looked directly at me and in a hushed tone shared with me that the president did not want to include any sort of mention of peace in that tweet, and that it took some convincing on their part, those who were in the room, and she said that there was a back and forth going over different phrases to find something that he was comfortable with. And it wasn't until Ivanka Trump suggested the phrase "stay peaceful" that he finally agreed to include it. The president resisted writing "stay peaceful" in a tweet. He told Mark Meadows that the rioters were doing what they should be doing and the rioters understood they were doing what President Trump wanted them to do.

0:46:57 Clip: President Trump's message was heard clearly by Stop the Steel organizer Ali Alexander. At 2:38 he told another organizer, quote, "Potus is not ignorant of what his words would do." Rioters storming the Capitol also heard President Trump's message. In this video, you'll see surveillance footage from a rotunda that shows a group of Oath Keepers, including Jessica Watkins, who's been charged with seditious conspiracy. You'll hear her walkie-talkie communications with others as they share intelligence and communicate about President Trump's 2:38 tweet in real time. Again, we warn the audience that this clip also contains strong language.

0:47:16 Thomas: Stay

0:47:42 Clip: CNN just said that they evacuated all members of Congress into a safety room. There's no safe place in the United States for any of these motherfuckers right now. Let me tell you. I hope they understand that we are not joking around.

0:48:01 Clip: Military Principle 105. Military Principle 105. Cave means grave. Trump just tweeted, Please support our Capitol Police. They are on our side. Do not harm them.

0:48:17 Clip: That's saying a lot about what he didn't say. He didn't say not to do anything to the Congressmen. Well, he did not ask them to stand down. He just said, stand by the Capitol Police. They are on our side, and they are good people. So, it's getting real down there. I got it on TV, and it's looking pretty friggin' radical to me. CNN said that Trump has egged this on, that he is egging it on, and that he is watching the country burn two weeks before he leaves office. He is not leaving office. I don't give a shit what they say. We are in the news, we are in the main dome right now, we are rocking it, they're throwing grenades, they're freaking shooting people with paintballs, but we're in here. Be safe, be safe, God bless and Godspeed and keep going.

0:49:06 Clip: Get it Jess, do your shit, this is what we fucking lived up for, everything we fucking trained for. Let's go over the Capitol, over and around the Capitol.

0:49:20 Andrew: Yeah, that is, that is useful again in the overarching theme. Right. When we talk about what does the president mean when he says and doesn't say stuff. Right, so the beginning of that, by the way, I just to be clear, was Sarah Matthews explaining her conversation with Kayleigh McEnany. And that everybody in the White House was trying to get the president to tweet out, "Stop the violence, violence, don't breach the Capitol, go home, give it up," and instead what he tweeted out at 2:38 was, you "We love you, this is the kind of thing that happens when the election gets stolen from us, uh, but, uh, you know, stay peaceful," right?

0:49:55 Thomas: Peaceful.

0:49:56 Andrew: Stay, stay peaceful, right as you're, you know, storming under the gun, and, and it had that line about stand with Capitol Hill Police, right, and, and you heard what I thought was by far the most chilling, that laughter, the, notice he doesn't say anything about harming the congressman. Like, that's chilling stuff.

0:50:12 Thomas: Yeah. I I found it particularly powerful, the demonstration of how much these people cling to Trump's every word and, and were there doing what he said. It was more than I even would have thought, you like, know, I could have seen it either, that was like, "Oh, it got out of hand," they Marsha got it, but no, they were, they were on their phones in the middle of their cooing on his every utterance to the point where later on, I'm sure we'll get to it, when he finally did say to, like, something a little bit more powerful than that, the goat boy or whatever, is like, "Oh, I guess, I guess it's, I guess we leave," he's saying, he's saying leave Crazy.

0:50:55 Thomas: That. That I thought was one of the most powerful things, the, we got the shaman, a being like, "Oh, it's over." He says leave. And then everybody just leaves. That seems like really strong evidence that this crowd was at his control.

0:50:53 Andrew: Yeah, yeah, I but that's exactly right, that interesting.

0:51:10 Andrew: No, you're exactly right. You go to introduce evidence that this is somebody who knew the effects that his words had, fact that I certainly was struck by that moment, uh, they're sort of passing it around, they're like, "Oh yeah, it's, the it's that he gave the the Rose Garden speech in which he said, 'Okay, it's over, we love you, you're very special, time to go home,'" and they all were like, "Okay, well, now it is time to go home."

0:51:33 Thomas: Crazy.

0:51:34 Andrew: That's absolutely amazing, so I'm going to skip over chairman of the Joint Chiefs of Staff, Mark Milley. But again, on Mark Meadows, he testifies that Meadows called him up and said, "We have to kill the narrative on Pence making the decisions." This was juxtaposed with Mike Pence was the one that called out for military backup, right? "We have to establish the narrative that Trump is in charge," end of quote. Not only is, is it devolving to others, including the Vice President, to bring in military backup at this point to try and stem the tide of violence? But the president is worried about the optics of what his failure to act is doing. This is right after the Rose Garden speech.

0:52:18 Clip: Despite the violence of the day, the effort to delay the certification continued. That evening, Rudy Giuliani called several of President Trump's closest political allies in the hour before the joint session resumed. Representative Jim Jordan and Senators Marsha Blackburn, Tommy Tuberville, Bill Hagerty, Lindsey Graham, Josh Hawley, and Ted Cruz. We know why Mr. Giuliani was calling them, because at 7:02, he left a voicemail for Senator Tuberville, which later became public. Let's listen to just the start of it.

0:52:59 Thomas: What?

0:53:09 Clip: Mr.

0:53:15 Andrew: Yeah. I mean, I don't know what to add to that. Right. This this is the call to somebody who hung up on you earlier because he was being escorted to a safe room. And now you're like, oh, hey, right.

0:53:28 Thomas: Weird.

0:53:28 Andrew: By the way, can't

0:53:29 Thomas: Got your voicemail for some reason, huh? You must be on the other line or something.

0:53:35 Andrew: Imagine what's more important to that coach.

0:53:36 Thomas: Minor note, isn't it the opposite? It would you say like Coach Tuberville, or should I say Senator Tuber? It doesn't really make sense to say Senator Tuberville, or I guess I should say coach. What? How does that make it that he is? So his brain is not all there, it's leaking out of his ears. Yeah.

0:53:50 Andrew: Indeed, Everybody should listen to Adam Kinzinger's close. It begins at 2:28. This is the most forceful and direct calling out. It says what I think is very clearly what is going through the minds of the January 6th committee. He says, look, we're going to make legislative recommendations, right? That's our job. That's why the committee was convened. And he says, and the reason we have to do that is because the idiots and buffoons and anti-democratic monsters that Donald Trump whipped up are still there, right. We can't just pretend like they've gone away. And so we need to make legislative changes to stop them, not to stop like some hypothetical person in the future, but to protect our 2024 election. And then he goes one step further and he's like, but that's not enough.

0:54:33 Thomas: Yeah.

0:54:47 Andrew: Laws are just words on paper. They will mean nothing if we don't hold wrongdoers accountable. To me, that is a very powerful, Yeah, you cannot interpret that as anything other than a call to indict Donald Trump.

0:54:50 Thomas: Are You Listening, Merrick Garland? Yeah.

0:55:05 Andrew: I

0:55:04 Thomas: You know, I said, on the last thing you said, I said to Lydia while we were watching and seeing this, all these people and this anger that we saw on Jan 6, that's all out there and then some. Just because we aren't seeing them in the Capitol right now, I think maybe I could be wrong, but I believe that has only stewed and grown since then. Like, we're not, in 2024, depending on how things go, it's not as though that's over because January 6th is over and they disperse. That's still out there, is what I'm saying. And if it could be out there and then some.

0:55:43 Andrew: Think that's exactly right. End, as always, with Liz Cheney. This is 2:38.27.

0:55:48 Thomas: Blorco, baby. Do we get a Blorco?

0:55:51 Clip: Case against Donald Trump in these hearings is not made by witnesses who were his political enemies. It is instead a series of confessions by Donald Trump's own appointees, his own friends, his own campaign officials, people who worked for him for years, and his own family. They have come forward and they have told the American people the truth. And for those of you who seem to think the evidence would be different if Republican leader McCarthy had not withdrawn his nominees from this committee, let me ask you this. Do you really think Bill Barr is such a delicate flower that he would wilt under cross-examination? Pat Cipollone, Eric Hirschman, Jeff Rosen, Richard Donahue, of course they aren't.

0:56:39 Clip: None of our witnesses are. At one point in 2016, when he was first running for office, Donald Trump said this, I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters. That quote came to mind last week when audio from Trump advisor Steve Bannon surfaced from October 31, 2020, just a few days before the presidential election. Let's listen. And if Trump's going to do it, if he's going to win, if he's to win, if that doesn't mean anything to them, he's just going to say to them, the Democrats, the more of our people vote early that count, they're going to win. And so they're going to have a natural disadvantage, and Trump's going to take advantage of that.

0:57:29 Clip: So when you wake up losing money, you're a firestorm. Also, if Trump is losing by 10 or 11 o'clock at night, it's going to be even crazier.

0:57:46 Clip: If Biden's winning, Trump is going to be supposed to show.

0:57:50 Andrew: Yeah, Steve Bannon is Blorco, right? Again, I know the committee has more work to do. Have a pretty good idea of where that work is going to be focused. It's been the point that I keep emphasizing again and again. Where is the direct line from Trump to Roger Stone to the Proud Boys? I feel like that's the link that they want to make explicit because I think they feel like that's that that the Rubicon, right, that if you have a Trump communique that says, yeah, get the Oath Keepers by to you know, in case we need them, that maybe that will be the line, you, the Ted Cruz can't cross. I don't know, okay.

0:57:53 Thomas: Yeah.

0:58:31 Thomas: There is no

0:58:32 Andrew: I mean I was setting you up for that. That's uh, that's an assist in the NBA. But um, and so putting that all together, the, the number of folks who were just too stupid not to crime in public, uh, know, Steve Bannon bragging about uh, how that was their, their strategy from the beginning. Um, seemed like a pretty good case to me. So there, there you go, that's our hearings. Uh, evidence in August I will be attempting to track down as many documents as I can find and then uh, reconvening public hearings in September. I can't wait, will be wild. Yeah.

0:58:32 Thomas: Line that Ted Cruz can't cross.

0:59:05 Thomas: Yeah.

0:59:07 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,

0:59:16 Thomas: It's time to thank our Hall of Famers, our all-time greats on patreon.com/law. We are on the third quartile, and that's the best court, best looking quartile I think, for sure. And I'll start us off. Thank you too. What are the legal steps for Minnesota to become a Canadian province? Asking for a friend, the Dows.

0:59:35 Andrew: Don't.

0:59:36 Thomas: For some dear old dad jokes. What I do you call a group of whales with broken fins? A podcast. Halster Goodwater, Learned Handjob, copyright 2022. Jake, after meeting with Putin, Susan Collins is absolutely certain Russia won't invade another country again. Christopher Brown, was anyone going to tell me that the abbreviation for Bank of America is BOFA?

1:00:02 Thomas: Philly live show 2022. Congrats to everyone taking the bar exam this week. Cheese steak special at the next live show. Vaccinated Aussies in Germany, if I get an NXT3BE write, can you top up my supply of Vegemite and Tim Tams, please? PSA, once the Supreme Court overturns Lawrence v. Texas, fellatio and cunnilingus may be illegal sodomy, but eating... Yeah, we'll just leave that off. Claire from Paris, France. Seattle Pete. Darth Mandy Pants. Robert M. Bob LaBas Law Podcast. Lou. Cuddlism is a religious belief about being sincerely held.

1:00:37 Thomas: Ballerina Live show with the cup. Oh man. Jealous. The impossible cheese brogler. Yeah, cheese brog... Polly Hernandez. Donate seized Russian oligarch yachts to 1-877 Maggie has for kids. And monthly abortion access donations inspired by OA. Oh, thank you. Yeah, there are.

1:00:56 Andrew: Whoo.

1:00:57 Thomas: You can go to oafund.org and make monthly donations to OA Fund. And I think this person might have. Your turn, Andrew.

1:01:04 Andrew: Yeah, thank you to Jason Copas, to Bob Coburn, New Life Call OA, matching donor, we love all of them, yes we do, stop calling him Uncle Frank, Nate Drex has to call him dad, is this the pardon list because I want to be on it, Ian Hamilton, civil politics radio.com, Fridays at 7 p.m. Eastern on Valley Free Radio, Lawful Copter says, America, where we want our children to breed but not read, John Builder back, Dasvidaniya comrade, Michaels, oh we're so sad to see you go, Pets of Belonging, new band name called It, Jennifer Cratch, six colon 30 a.m., that they wrote out the colon, was invented by the devil, fair stop Aluada, slander any VP deserves the Presidential Medal of Freedom around January 6th, it's quail, not Pence, uh, that's, actually a pretty strong argument, I like that, it's not illegal to hope bad things happen to Samuel Alito, no it is not, Stephen Balticate, Sandoval caught Covid after 2.5 years of avoiding it do not recommend yeah Yeah, this is, yeah, we got three votes for that one. Philip Kizer, Andrea the Arbitrary and Capricious, Payne's Trumpet, Greg Krimer, and Gare Shursett. Pronounced G plus air and then sure plus set. Please read all of it, okay?

1:02:03 Thomas: Oh, yeah. Was this me did I pledge that might be me and

1:02:22 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

1:02:27 Thomas: And now it's time for T3BE answer time. Time. Let's see how I did with this one.

1:02:33 Andrew: So, this is a question about neighboring plots of land. A man and a woman own neighboring pieces of land. The man wants to build a pool. The neighbor says, "Okay, but you got to promise me you're going to keep that cleaned you and maintained uh every two weeks," and man says sure. And then uh both parcels pass to their respective heirs, right? Man grants the land to his son, woman grants the line to her daughter. Uh The lazy good-for-nothing son doesn't, you know, uses is the pool, but on the cleaning part, right? Who's going to do that? And the daughter seeks to have this condition, which, by the way, was attached to the property, enforced. The question is, the question is, who's going prevail? You went back and forth between B, the son, because there was no horizontal privity between the the son and the daughter, or C, the daughter because she is an original party to the contract and can enforce it against the other original party or any party in privity?

1:03:31 Andrew: I'm here to tell you, and I know it's going to be a little source of frustration, the correct answer is actually D, the daugher, because she sought an injunction. It's one of those kinds of questions. Here's why the injunction part matters, okay? This is actually isn't something we have talked about in property before, so I think it'll be instructive. We've talked about the property as a bundle of sticks. This is kind of the opposite of bundle ofsticks right? This is, what do you want to do when you wantto transfer a piece of property but you want want to prevent somebody from having all... You want to keep some of those interests. You want to prevent everybody from being able freely to trade all of the sticks. So when you want to constrain land from the future, that's where the concept of privity comes into play, which obviously this question is about.

1:04:23 Andrew: And this is actually the difference between a covenant and an equitable servitude. I will tell you, I had to look up equitable servitude, okay? This is something I studied for the bar and have not used in, you know, 25 years. A covenant, on the other hand, is something you probably do understand and are familiar with. The classic example would be an easement, right? So, yep, yep.

1:04:48 Thomas: Oh, that's what I said. I was trying to find those words. Yeah.

1:04:52 Andrew: So, right, you let your neighbor drive across, you're driveway connects to your neighbor's driveway and connects to the road. You let your neighbor drive across that. And then your neighbor comes to you one day and says, hey, I'm worried. You've got a for sale sign in the yard. I'm afraid that the guy who buys the house isn't going to let me drive across the driveway. And you say, all right, well, let's put it in the deed. We will put, right? Neighbor, Andrew Torres, has the right to drive his car across my driveway to reach Road on the the other side of the house. And the question then becomes, does that burden? So that easement would be a benefit to me and a burden to you, right? And the questions is, does either part of that, this is the law language, run with the land? That is, is it going to be binding on the next person who buys that piece of property.

1:04:57 Thomas: Yeah, I

1:05:46 Andrew: And for a covenant to run with the land, it has to meet six different conditions.

1:05:53 Thomas: Thought you said this wasn't a covenant, though.

1:05:55 Andrew: It isn't. That's what's going to get to the distinction. But essentially, all of those six boil down to one kind of question. Should the later people have known that this would have run with the land, and therefore, is it fair to bind them to those terms? So those six things are covenant must be in writing, which it was here. Number two, the parties must have originally intended for that covenant to run with the land. Again, seems to be bound here, right? And the key phrase you use for there is successors, heirs, and assigned, and assigns, right, that says we intend this to run run with the land. Third, the covenant must touch and concern the land, okay? So in other words, it has to do with the property itself and

1:05:57 Thomas: Okay, sure. Oh is that

1:06:43 Andrew: Not something else.

1:06:44 Thomas: Why this isn't that or

1:06:45 Andrew: Nope. This still touches and concerns the land because it's the pool. The pool is now a permanent part of the land so So

1:06:46 Thomas: No? Okay, it does. What? If it's one of those above ground

1:06:57 Andrew: If it is one of those above-ground pools, it might not, yeah.

1:07:01 Thomas: Kiddie pool, yeah, huh.

1:07:04 Andrew: So number four, horizontal privity, okay? And that is, again, think about that. That is between the two neighboring landowners, so okay, the parties that make up the original covenant have to have some contractual relationship to the land, Some right? Kind of ownership or control. And what that means is, right, if you are attempting to have your run with the land with your neighbor, you have to have some kind of additional relationship. So you lease him a portion of the land, right? You do something that establishes that you are in horizontal privity because just being neighbors is not enough to satisfy horizontal privy. Okay. So, right.

1:07:52 Thomas: That's interesting. Sure.

1:07:57 Andrew: So now you're thinking, okay, well then why is this, why does this wind up running with the land? Get through the other, the other two criteria. First vertical privity is, uh, that the owners, uh voluntarily transferred the land down to the the successor. That passes here. There is vertical privity between the man and the son and the woman and her daughter. They validly transfer it down. But if you haven't validly gotten the land, you can't enforce a covenant on the land.

1:08:23 Andrew: And then you must have notice or reason to have notice that the covenant existed at the time that the transferee took possession of the burdened estate. Here again, they write it into the deeds.

1:08:31 Thomas: And these were all, you have to meet all six of these was

1:08:34 Andrew: You got to meet all six. So we don't appear to to have horizontal privity between the man and his neighbor, why is this nevertheless enforceable? And the answer is that's the difference between a covenant and an equitable servitude. An equitable servitude is a covenant, right, that restricts the use of your land in some way, but the difference is that you enforce an equitable certitude with specific performance, right? Not with money, right, so here this this restriction gets enforced by clean the damn pool, and for parts that I don't understand that I'm sure made sense to like feudal lords and ladies in the 1400s, if you are not seeking damages, right, if you only seek equitable relief, then that makes it an equitable servitude, and you don't have to have horizontal privity between the parties, it is still enforceable. It only becomes unenforceable if the covenant requires you to discourage damages down the line.

1:08:35 Thomas: Okay oh.

1:09:34 Thomas: I'm glad I I held my tongue on D. I was, I was gonna really go off on it, but it, all right. The bar brought it around because it is that she saw, because she saw an injunction, was it, was one of those question mark crossword things. It was a trick, but it does ultimately make sense because had she sought damages, then she wouldn't have prevailed is the way it works, you're saying.

1:09:37 Andrew: Yeah, that's exactly right.

1:10:02 Thomas: Ah, that is a trick freaking question.

1:10:02 Andrew: So it's a super, it's ridiculously hard question. I am ashamed of even asking it of you. But it gives us the opportunity to discuss the concept of privity.

1:10:06 Thomas: Wow. My whole family's got COVID, Andrew. I'm barely here.

1:10:16 Andrew: I do. I do, I do!

1:10:17 Thomas: I fever All last night, and you have the gall to ask me a question like this. I how could he do this to a poor, tired covid adult co-host? I just, I'm, I for one just can't even, I can't understand it.

1:10:31 Andrew: You deserve all of the sympathy and then some. And you will never, I mean, other than for future T3BE questions, you'll never need to know the difference between a covenant and an equitable servitude ever again in your life. Again, I'm a practicing lawyer. I don't know. If you ask me six months from now to explain the difference between a covenant and an equitable servitude. At gunpoint, I don't know that I could do that.

1:10:53 Thomas: Yeah. So. Wait. It. Sounded like from what you said, the whole easement road thingy only exists if there's some horizontal relationship of like somebody's renting from somebody else, or something. What was that, uh, collect

1:11:05 Andrew: So if you want the beneficiary of the easement to collect damages, but again, you could make it an equitable certitude, right? You could say, right, this property is being passed down subject to, my neighbor can go into court and get an order saying that he can drive across the driveway. Way. So you could, yeah, it's a crazy, crazy in-depth question. It goes to show you that real property law makes no sense. I'm sorry.

1:11:16 Thomas: Man what a question. Yeah, no, all that makes sense. That was just incredibly in the weeds. And, uh, I'm not, yeah, no, well done, bar. You got me. All right, let's see who somehow was not fooled by this one.

1:11:40 Andrew: The bar gets everybody down. Yeah, Thomas, and this week's winner, I think you'll appreciate this, is Craig Bryant on Twitter, who writes, T3BE, I do not understand real property, and I will not research it, but I think the answer has to be D, the daughter, because duh, modifying the deeds created an easement, or I don't know, something. And easements don't just disappear when property changes hands. Clean your damn pool. Well, I am truly impressed that somebody could just reason their way to the correct answer, even if there are some details that we would patch up a little bit.

1:12:17 Thomas: Say c also was the daughter, you could have gone with c, but okay I

1:12:20 Andrew: That's true that could have helped you out, uh, but, uh, congratulations, Craig, on this being this week's winner of T3B. Remember, let's give them a follow. That is at Craig, c-r-a-i-g-k-b-r-y-a-and-t, and, uh, enjoy your never-ending fame and fortune on an unbelievably hard question.

1:12:40 Thomas: That's our show. Thanks so much for listening. Thanks for the breakdown, Andrew. Uh, looking forward to next show. We'll see you then.

1:12:48 Andrew: Until then.

1:12:49 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.

1:13:23 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.