OA619: OK, Alex Jones's Lawyers REALLY Don't Know WTF They're Doing

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

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

0:01:27 Thomas: Doing well. Kids are back in school. That is all I needed.

0:01:30 Andrew: Oh, that's so good. Yeah.

0:01:32 Thomas: All I needed!

0:01:33 Andrew: Sleeping again.

0:01:35 Thomas: I would take 8 COVIDs if the kids were in school versus 0 COVIDs and the kids not in school, it's just hard. How

0:01:41 Andrew: Yeah, no, I I have a lot of really, really good news for this episode. And, you know, we don't get a whole lot of that. So I'm excited.

0:01:52 Thomas: Is more to answer there, just, just in Thomas's questions. We could do four full episodes on what has happened lately. We've got Pat Cipollone, we've got, so, well, Alex Jones, you know, all the coverage of Alex Jones. Definitely want to hear from Ace Associate Morgan Stringer on that. But in the meantime, a couple legal questions about that we got, uh, yeah, Pat Cipollone, we got Kansas, the good news there. I mean, there's so much.

0:02:06 Andrew: Yep. I So let's get started in Kansas, shall we?

0:02:22 Thomas: We don't actually have to go to, you just mean, okay. Thank God. Okay.

0:02:25 Andrew: Oh, yeah. That's great. You just cost us all of our Kansas listeners who came through for us in a big way on Tuesday.

0:02:34 Thomas: That's true.

0:02:35 Andrew: So. Just to recap and to let you know, everybody has probably seen the top level headlines. But, you know. You come to opening arguments for more than that. Go back and listen to episode 276. This is from 2019, May of 2019. And we said to you, hey, this Supreme Court, this was pre-Amy Coney Barrett? We were like, this supreme court is going to gut or reverse row. And here's how states can fight back. And guess what? Leading the charge inexplicably to us was the state of Kansas in a Supreme Court decision called Hodes and Nauser versus Schmidt. I will link that in the show notes. Notes, I'm, um, gonna read you the holding of that case so that you recall if you haven't gone back and re-listened to the episode, you should, but if you pressed for time, that's fine.

This is what the Kansas Supreme Court said in 2019, quote: "We hold today that Section one of the Kansas Constitution Bill of Rights protects all Kansans' natural right of personal autonomy, which includes the right to control one's own body, to assert bodily integrity, and to exercise self-determination. This allows a woman to make her own decisions regarding her body, health, family formation, and family life, decisions that can include whether to continue a pregnancy. Under our strict scrutiny standard, the state is prohibited from restricting that right unless it can show that

0:03:06 Thomas: Yeah.

0:03:58 Andrew: It is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest." And, as you know, from six years of this show, when the standard is strict scrutiny, that's the same standard that you have to show in order to classify on the basis of race, for example. So, you know, um, a high bar to meet, right? And that is an outstanding ruling, the quibble over the, non-gender inclusive language, but, you know, we're talking Kansas, right? Like, let's, let's take our victories where we can take them. The response was, I have seen this described as a ballot initiative. Absolutely not a ballot initiative. The response was for the Kansas Republican Legislature to introduce House Concurrent Resolution 5003.

0:04:47 Andrew: So this was introduced in the legislature, not ground up. Not right, from the ground up on ground beef or whatever. Well, it sure has. That particular piece of legislation says said the Bill of Rights of the Constitution of the state of Kansas is hereby amended by adding a new section to read as follows. So, look, this is your remedy. Right. At the state level, when there is a state Supreme Court decision that you don't like and at the federal level, when there's a U.S. Supreme Court position that you know, like the only readily applicable remedy to that is to amend the Constitution. Right. To change their evaluation of the Constitution now, if the Supreme Court, If a state Supreme Court interprets a law in a way you don't like, then you can just pass a law to change that. Same thing about the US Supreme Court.

0:04:53 Thomas: It has been ground up actually. That is right.

0:05:41 Andrew: Right? If the if the US Supreme Court is interpreting a statute, you don't have to amend the constitution to say that they're wrong. You can just pass a new law that says, yeah, right.

0:05:48 Thomas: My famous Like, hey, dummies, here's what this actually means, yeah.

0:05:53 Andrew: And and sometimes that can bite you in the ass in the sense that after Employment Division versus Smith, Congress passed a law, RFRA, the Religious Freedom Restoration Act, that said, hey, just to be clear, when you were interpreting congressional legislation, we want you to interpret it as if we had intended to carve out all sorts of special privileges for religious people.

0:06:15 Andrew: And, you know, and they didn't have to amend the Constitution to pass RFRA, so you it can be a double-edged sword, but was, what happened, Republican Congress, Republican State House and State Senate each passed by a two-thirds margin this new section 22 to the state constitution, regulation of abortion. You're gonna love, you're gonna love the doublespeak in this, because Kansans value both women and children, the constitution of this was called the Value Them Both.

0:06:14 Thomas: Is This written

0:06:46 Andrew: Act. I am Not Kidding. The constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution to the United States, the people through their elected state representatives and state senators may pass laws regarding abortion, including but not limited to laws that account for the circumstances of pregnancy resulting from rape or incest or circumstances of necessity to save the life of the mother. That, again, was called the Value Them Both Amendment. And the first thing I want you to know, and this is, this is why I'm spending a little bit more time on it than, uh, just hey, we won in Kansas, uh,

0:06:46 Thomas: By a Fourth grader too. Right.

0:07:24 Thomas: Right.

0:07:24 Andrew: Because I want to show you the duplicitous nature of what the Kansas legislature did. So, right, the first part, the constitution of the state of Kansas does not require government funding of abortion, nothing in the Hodes decision that I just read to you could possibly Even Imply that, right?

0:07:40 Thomas: Right. It's Like when those idiots want To pass, like, the First Amendment Act in Congress to just say What the First Amendment already says, and

0:07:43 Andrew: Yeah. Get Correct, absolutely correct. And then the second half of that, the may pass laws regarding abortion that account for circumstances of pregnancy resulting from rape or incest, well, guess what, if you can't restrict the right to an abortion, then you can't restrict the right to abortion arising from rape or incest, right? Like, they, they have to put the exceptions in here because they know, right, if you're sitting thinking, like, hey, this is Kansas, like, why didn't they just say section 22, fetuses are human beings and all abortion is prohibited for all time arising from conception, and the answer to that is what we saw at the ballot box, right, because, because this didn't just have to pass the overwhelmingly conservative Kansas legislature by a two-thirds vote, which it did.

0:08:37 Andrew: This had to pass The People. And it only needed 50.1%, right? It only needed a one-person, a one vote majority to become a constitutional amendment.

0:08:46 Thomas: Was Incredibly nervous about this, yeah.

0:08:48 Andrew: So was I. I agree. And it's really hard to poll on stuff like this. So there was was just, not a lot of data.

0:08:52 Thomas: Well, And, as you said, yeah, I don't know how much more the, of the trickery you're going to go into, but, like, everything we're talking about, you know, it's not a ballot measure, but things that are going up for the public to vote on, it's, it's hard to get those to be understood by everybody perfectly, it's very difficult, let alone when you're trying, when someone's actively trying to have you not understand it, so It was like a weird vote, and they did it during the primary to Try to, like, Make sure there'd be more Republican turnout, it's Just, it's Amazing.

0:09:13 Andrew: Right. Uh-huh. Yeah. Because The Democratic Primary in Kansas is, you know, not a particularly useful thing, so Yeah, no, everything, all of the stars were designed to get this passed, and it failed 59 to 41, it failed by 18 points in one of the five reddest states in The union, and so if, if you care at all about changing the direction of our country and you're not organizing around Roe, you're doing it wrong.

0:09:22 Thomas: Yeah. Yeah. Wow. Yeah.

0:09:52 Andrew: I mean, this is this is the equivalent of an 18 point victory for Democrats in Kansas. And that is astonishing. Yeah.

0:10:01 Thomas: Well, I don't know about that, but, but yeah, I mean, it's sort of like when in Florida, when the minimum wage thing passed, DeSantis but won or whatever, you know, it is like, I think things pull differently when they are detached. It is going to be, I think, a theme of perhaps upcoming shows.

0:10:17 Andrew: Certainly.

0:10:17 Thomas: Everything is negative partisanship now and detaching issues from parties does, I think, clean it up a little bit and does make it so people actually vote on issues rather than just the team that they hate.

0:10:32 Andrew: Agree, agree with that.

0:10:33 Thomas: But your point is taken that, you know, this is a winning issue. So Democrats run on this issue.

0:10:38 Andrew: And And this, and again, remember, because this ballot initiative fails, what is left Is a Strict Oh, You Are Right, I'm not even going to edit that out, it's, it's, it's hard, no, look, like, I want to, I want to keep that in to show you, no, it's hard to absorb the news coverage and not fall into it.

0:10:45 Thomas: Yeah, you said ballot initiative. I said it right. You said it.

0:11:00 Andrew: So, yeah, the fact that this constitutional amendment failed Kansas with among one of the most protective abortion rights regimes in the country. Right. Yeah. So good on Kansas. And that's why when I say, yeah, it is the equivalent of, you know, I mean, it is the equivalence of electing AOC's position on abortion statewide in Kansas by 20 points. You got to feel good about that.

0:11:00 Thomas: Yeah, that's really cool.

0:11:26 Thomas: Sure. Sure. All this just because Kansas happened to have some kind of cool people in the court, right? That interpreted the, yeah.

0:11:36 Andrew: Yeah. They legitimate jurists on their state Supreme Court. Again, this is not a liberal state Supreme court by any means. But it is not stacked with the hardcore activists that were funneled onto the court by Trump and by, to a lesser extent, George W. Bush. So they determined that they were no longer going to be bound by the Supreme Court's interpretation of what the 14th Amendment and equal protection of the law meant. And they were going to say, yeah, no, we're free to interpret that phrase as it appears in our article, one of our state constitution separately. And we interpret it much more expansively. We're not telling the Supreme Court they're wrong for, you know, you do whatever you want, but that's not binding on how we read it. Yeah, that's and and that is, of course, what that means.

0:11:39 Thomas: Yeah.

0:12:24 Thomas: But you're wrong. All

0:12:28 Andrew: And that is available for every single state and until the independent state legislature doctrine. I know it. We're not going to go there. There's a happy day. We need to stay on a happy day.

0:12:35 Thomas: Yeah, yeah, it's a good, this is tremendous News item number two, Pat Cipollone subpoenaed. Okay, so this, so what does this tell us? Well, first, clarify exactly what this entails, because I know that it's hard to keep all these things straight. Hmm.

0:12:50 Andrew: It really is. That's that's an excellent point. So, going to link to the New York Times article that broke yesterday that announced this that really is not getting enough attention as a bombshell announcement. So former White House counsel Pat Cipollone, Patsy Cipollone, been subpoenaed by a federal grand jury. So what we know is a grand jury has issued him a subpoena, we'll put a pin in that, um, and, uh, that, that is in connection with January 6th, right?

0:13:11 Thomas: So Is that, that's the extent of the public information we get, okay? Or wait, why do we even know he's subpoened? I'm sorry, is that is something that he would have had to tell somebody, or somebody okay, so I

0:13:20 Andrew: Correct. Right. Uh, Yep. Yeah. You can, you can tell people, right? Grand jury testimony is private, but if you get a subpena, you can say, hey, I just got subpoened. Yeah. So.

0:13:37 Thomas: Guess What I'm clarifying is, would he have had to tell somebody, or his lawyer whatever, or would somebody be able to figure this out, you know, because I can, that kind of indicates, like, if, if he's telling people he was subpoenaed versus are you able to just keep that a secret if you wanted to?

0:13:53 Andrew: The answer is, uh, that because grand jury testimony and proceedings are private until unsealed in the event of an indictment, he would have, and indeed did, tell people. That's how we know. So the New York Times credits a person familiar with the subpoena, said, right? And, and you notice I am relying heavily and giving our citations because usually I talk about stuff when we have documents, and so I want to explain why we don't have, have documents, and I want to explain the limitation of that and also what we can properly infer even in the absence of documents. So

0:14:09 Thomas: Okay. Just a note on what we can infer, are, couldn't this, this have been someone on the justice end that was familiar with the subpoena?

0:14:34 Andrew: It could have been, that could result in, uh, potential, uh, criminal charges if it were leaked out of DOJ.

0:14:40 Thomas: So, way so way less likely than

0:14:42 Andrew: Yeah. Yeah.

0:14:42 Thomas: Just Okay, gotcha.

0:14:43 Andrew: Yeah. Because, again, right, you don't circumvent the secrecy of the grand jury. So no

0:14:43 Thomas: Okay. Us normies I just want to calibrate I want to calibrate my priors as to what happens. So, so, odds on that it has to be somebody close to Patsy Cipollone, unlikely

0:14:50 Andrew: No, no. I, I connected to Cipollone yes, exactly. Could it have been a drunken, one sick staffer who, you know, said, I just sent out a whole bunch of new subpoenas last night, I could have, right? But would, but view that as unlikely. I would do it as far more likely that Cipollone told a whole bunch of people that are sort of in his orbit, knowing that eventually that, that would, that that could get out. So, right, told you to put a pin in a grand jury. We know of at least two grand juries right now. And again, this is in D.C. I should clarify, we know that this was DOJ-DC. We know that there are two DC grand juries, that there is one that is investigating the events of January 6th that has handed out all of the indictments in DC with which we are familiar, the 800 plus folks that we have currently in the queue right now.

0:15:47 Andrew: And we know that a second grand jury was impaneled to examine Trump's lawyers and advisers in connection with the false slates of electors scheme. So,

0:16:01 Thomas: Want to get on that investigation by the way, oh, I did the investigation, they submitted their names and what, who, everybody that they are. Done, wow, ace detective work right there. And

0:16:04 Andrew: Yeah. Yeah. Right. Exactly. So so here's what I think we can reasonably infer from that. So that's what we know. We Right. Do not even know which grand jury. There could be a third grand jury that was specifically impaneled just about Trump. Right? Like, that's, that's probably what I would do if, if I were in the U.S. attorney's office in D.C., if I were Matthew Graves, for example. I'm not a prosecutor, so, you know, maybe my judgment on that is, is suspect. But we don't know. We know a grand jury has issued a subpoena to Pat Cipollone in connection with January 6th. Now, from what can we infer? Number one, the people Pat Cipollone knows are all people that are higher up on the rung right now than anybody who has currently been indicted in connection with 1-6, right? Right. So right now, the highest folks that we've got are Enrique Tarrio and Stuart Rhodes. Right. Like the Oath Keepers and Proud Boys leaders. Right. For coordinating the violence, being the boots on the ground.

0:16:21 Thomas: You're not subpoenaing Patsy Cipollone to get info on them, right?

0:17:14 Andrew: He doesn't he doesn't know a damn thing about the Oath Keepers. Right, so it is some, you know, he's White House counsel. It's somebody who has been in the White House. Right now, does that mean that it's Trump? Up? No, it could be Eastman. It could be Giuliani. It could be Sidney Powell. But look, even if it is those folks, those are folks who need to be indicted and need to go to jail.

0:17:23 Thomas: It's in the name yeah, yeah

0:17:37 Andrew: Right? Yeah. So I know we have doom scrollers and naysayers. They're just going to set up John Eastman as the fall guy. Lighten up, Francis. And then it's a necessary step. It's not a a sufficient step to indict John Eastman, but like, man, is it necessary. So if this is in connection with getting Eastman, great, right, that's a positive development. And I can't think of right anybody for whom you would be disappointed to see an indictment come down that that Cipollone could be connected with, right, he's White House counsel, so that's kind of point one. Remember, by by the way, that the grand jury has already heard testimony right from Greg Jacob, Pence's former counsel, and Mark Short, his former chief of staff.

0:17:37 Thomas: No kidding are

0:18:28 Andrew: So, yeah, you cannot say at this point the things that people were saying six months ago, which is doesn't look like the DOJ cares at all about Trump's involvement. It looks very much as though they care about Trumps involvement. And if that's the January 6th committee doing its job, nudging them in that direction. Great. Right. You have to be happy about that. I will also link a an article from last week, July 26th, that was New Year's. Times saying that the DOJ, based on sources, is asking witnesses about their connection to Donald Trump specifically. So that's kind of my point one. This seems like a top of the ladder thing, Point two, unlike the on-again, off-again Mark Meadows, who has decided that he was not going to comply with the January 6th subpoena.

0:19:19 Andrew: Remember, that argument was based on separation of powers, The right? Idea that a congressional committee could not bring in the president or by extension, the president's close advisors and demand that they sit for a deposition. And, you know, we went into the OLC memoranda that explained that and the way in which the Biden administration in connection with Mark Meadows has taken the position that that doesn't apply to former presidential top level advisors like chiefs staff. But but my point here is let's not get tangled in the weeds on Mark Meadows. There is no separation of powers argument here. Year, right?

0:19:18 Thomas: They dating, are they not, are they Hmm.

0:20:04 Andrew: This is, the DOJ is an executive branch. You're an executive branch official. So whatever immunity you have from congressional inquiries does not apply, yeah, when it is a grand jury that's also under the supervision of the executive branch, And right. So this is what we have. DOJ conducting a criminal investigation with an eye toward prosecuting criminal offenses and And not legislation. So there's... there's absolutely none of those arguments in the OLC memo apply. Patsy Cipollone will testify to the jury or will be held in contempt and a court will force him to testify.

0:20:13 Thomas: Right oh interesting well I didn't think about the fact that it is the executive branch, but how far does that extend? I mean, is that the point where, when he's testifying to, you this grand jury, he can't even say presidential privilege or whatever? Exactly.

0:20:52 Andrew: I love doing the show with you because that's note number three. Note number three is that the standard of executive privilege is much more narrow when you are testifying in connection with a criminal investigation. And that goes back to 1972 Supreme Court decision, U.S. v. Nixon. Yes, that Nixon. Right. These are the Nixon tapes. And, right, remember, Richard Nixon's argument for not having a member of his close staff produce the tapes that were recorded in the White House was absolute executive immunity. And, I'm sorry, and the Supreme Court says, you know, you're, get that when it comes to crimes, so, right, in fact, here's what the Supreme Court said in U.S. v. Nixon. This was the holding. They said, neither the doctrine of separation of powers nor confidentiality of high-level communications can sustain an absolute, absolute unqualified presidential privilege of immunity from judicial process under all circumstances.

0:20:55 Thomas: Oh yeah

0:21:47 Andrew: The president's need for complete candor and objectivity from advisors calls for great deference from the courts, right? That's executive privilege. However, when the privilege depends solely on the broad undifferentiated claim of the public interest in the confidentiality of such conversations, a confrontation with other values arises. And then they go through and analyze that, and they say, like, yeah, look, you, you could have very specific claims about national security, right, diplomatic military secrets, okay, that would be higher. But when you're just saying executive privilege, right, this is public, publication of this is not going to show, you know, where our troops are in Vietnam, right, we conclude, this is the Supreme Court concluding, that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal, criminal trial, that's this, is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated specific need for evidence in a pending criminal trial.

0:22:24 Thomas: So Should Trump have done the equivalent of playing, like, the copyrighted music, music where you should just do a troop movement in every single crime like sorry you know what, I better cut that.

0:22:54 Andrew: Can we not give tips here? Yeah. Yeah.

0:23:04 Thomas: Look.

0:23:05 Andrew: Let's not give Ron DeSantis any ideas.

0:23:07 Thomas: Make sure you throw the election for me, also move some of my, uh, guys from, uh, Kamchatka to the, I assume it's like Risk where that's what the true move, get Australia damn it Eastern Australian, Western Australians, the stranglehold of the world too good of advice

0:23:11 Andrew: Yeah you obviously hold Australia, right? Yeah Oh, yeah, no, that's a little terrifying that is a potential loophole that's there, uh, no, and I'm serious about that, right, there are, uh, So yeah, let's go down that track yet. The other implication, though, is is that think about the end of what I just read there. Prosecutors would not have issued the subpoena if they had not concluded that Cipollone possessed information vital to prosecuting a possible Crime. That's exactly right, otherwise why would you do, right, you subpoena him and it would be a repeat of uh Eastman going before the January 6th, fifth, fifth, fifth, you know, again, nothing was more uh offensive than uh General Michael Flynn's

0:23:26 Thomas: Okay yeah wow crime Yeah. Geez.

0:24:07 Andrew: Isn't There, don't you believe that we should have a peaceful transfer Of power, fifth.

0:24:07 Thomas: Peaceful. Transfer. Of power, I

0:24:11 Andrew: Yeah, so yeah.

0:24:12 Thomas: I can't answer under the grounds that it might tend to incriminate. That's incredible. I still Can't Get over That Yeah.

0:24:16 Andrew: Yeah. Well, that Answer kind Of Incriminates You. So, all

0:24:19 Thomas: Me.

0:24:20 Andrew: Right. So that story is and should be huge. And you should, in taking together with what we're going to talk about in our next segment, feel confident that, I get it. I said when Joe Biden was elected, the right person I wanted to be attorney general was, you know, Morgan Stringer, right? I want somebody who's 25, right. I'm going to work 23 hours a day. It was angry and, you know, would not rest until everybody connected with Trump was in handcuffs. And we got we knew the top two choices were Doug Jones and Merrick Garland. And we knew that these were, not firebrands. So I get it. I. Right. I wanted A.G. Morgan Stringer. You wanted A.G. Morgan Stringer. We got A.G. Merrick Garland. But there is, I think, every reason to believe that that is going to be a very, very serious investigation that should go all the way to the top. And again, if it stops, right, if if Trump is not at least charged with 18 U.S.C. 371 or 1512 C, I'll share in your outrage and maybe share even in the like despairing in the system at

0:24:42 Thomas: Damn it, right.

0:25:32 Andrew: That point. It

0:25:32 Thomas: That's Gonna Be. I mean, I'm, I'm very worried about that. I, I'll be honest, I, I'm to the point where I am very worried and wishing, as you say, we had a, different, different attorney general, uh, because this is making me very nervous. The, I, last thing we need is a cowardly declination, um, to to go after Trump for anything. It's, it's gonna, it's going to ruin the country. I mean, and the worst thing would be if they think that's what's actually going to heal the country somehow, because it's the opposite of true. Okay.

0:25:57 Andrew: I got a very thoughtful question, uh, from Deborah Smith we don't have time for on this episode, but I, but I want to ask it of you as well, that that places that into historical context. So, uh, I think the heal the country argument is, uh, insane, but we'll, uh, get there when we get there. Um, last little bit, uh, we discovered, Business Business Insider issued FOIA requests related to Cassidy Hutchinson and announced today, discovered that she continued working after January 6th on Trump's behalf for nine weeks after he left office. She served as the coordinator for Trump's, this is their words, official taxpayer-funded post-presidential office from about January 20th, 2021 to April 1st, 2021, earning an annualized salary of $90,000.

0:26:45 Andrew: That would be, yeah, 9 and 50 seconds times 90,000 is 15,000, is about 15,600 bucks. That will go to witness credibility. And right? If you're putting up Cassidy Hutchinson as a witness. Right. You know, after she says that, the other side is going to be like, well, if this guy was such a monster as to what you just testified, how come you kept working for him for three months?

0:27:05 Thomas: Yeah. And They'd Be like I'd like to demonstrate, uh, exhibit A, the entire economy, look at the housing market. I'm Gen Z. What is she, Gen Z? I imagine she's Super Young.

0:27:13 Andrew: Yeah. I think she's 25.

0:27:14 Thomas: Yeah. Is that Gen Z? I already Forget, I'm Gen Z. I guess the housing market's been ruined by you boomers. I need a job. You think I'm gonna pass up a ninety thousand dollar, or job? Come On, yeah.

0:27:15 Andrew: Yeah, right. I think it is Gen Z. Yeah it is. And that's right. And what you have to do is if things are as they appear to be on the basis of what Business Insider has reported, again, they FOIA requested the documents but did not release them to the public. So I'm going by their reporting. Well, that's not uncommon, media right? Outlets have different, believe me, I know this, policies towards releasing primary source documents. So, yeah,

0:27:48 Thomas: Yeah, it's just, it is just a little weird to be like, people deserve to know I'm filing a freedom of information, but we're keeping it. We're not telling it. Can we FOIA them?

0:27:55 Andrew: I would like to see these documents. We could issue the

0:28:01 Thomas: The same FOIA. Yeah, I know.

0:28:01 Andrew: Same FOIA request if they don't.

0:28:02 Thomas: I know I I'm just joking.

0:28:02 Andrew: Yeah. So any event, we're about to transition over and talk about trial testimony, that this is a good illustration of what you do. Like, there are very few perfect witnesses. And Right. So if you're going to put Cassidy Hutchinson on the stand, you say, now, Ms. Hutchinson, it's it's true. Or you would say because you can't lead, you would think you could probably get away with it with leading on this one. But you'd like, Ms. Hutchinson, did you continue to work for President Trump after January 6th and, in fact, after January 20th? And she would say, yeah. And I have to say it I'm really ashamed of that. It was cowardly on my part. I'm 25 years old. This has been my entire life. I didn't know to do.

0:28:21 Thomas: I don't know, man. Does she have student loans? I would, you know, there's gotta be ways you can, you can gin

0:28:46 Andrew: But just say, like, look, this is I expected that I would be working in Republican politics for the rest of my life. And I was afraid to instantly burn bridges. I was afraid to resign out of hand. And I had a financial interest in continuing to, you collect a paycheck. And so it took me a couple of months to regroup and sort of develop that courage. And yeah, I wish I could, in an ideal world, I wish I could have had more courage sooner. Yeah, that's your answer. That's and fine, right? A jury is not going to be like, well, you know, she must have made up that, like, well,

0:28:46 Thomas: Up the sympathy.

0:28:56 Thomas: Right. Yeah.

0:29:21 Andrew: All these well documented, you know, emails and tweets going well,

0:29:24 Thomas: Well, could you put it the other way? Could you even turn on its head and be like? Like, yeah, I mean, I guess maybe this wouldn't be her answer, but try to make an argument or questioning that's like, yeah. What would be her motivation if she indeed still worked and made money from him? What's her motivation to just give all that, that career up and just make stuff up? Like that doesn't make sense.

0:29:43 Andrew: Now she's found a better outlet for, I, I don't know, yeah.

0:29:47 Thomas: Does she have a 100K job as a result of this? I don't think so.

0:29:48 Andrew: Yeah. I think she does not yet, you know, have a uh talking head gig on MSNBC or something like that. You, are, I correct, not, I, right, don't think that it is tremendous impeachment, impeachment, uh, but it was a news item. It relates to one six, we want to make sure we're covering it.

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0:31:43 Clip: I don't like them putting chemicals in the water, that turn the friggin' frogs gay, Hey.

0:31:47 Thomas: Time for the fun stuff. Stuff we As I've said, we're going, there's going to be stuff on the Alex Jones trial. Who knows how much we, there's... there's months of content on this trial, but you know, we'll see how it all shape, shakes out.

0:31:48 Andrew: I would would love for us to be able to do a laud awful trial, maybe not only get, you know, the Knowledge Fight guys up, maybe get Mark Bankston on, I don't know, where we are thinking about that, but, but let me say you, if know, if you're a patriot and you're wondering, have, have they thought about doing like what we've done for some of the, oh yes we have, all oh

0:32:05 Thomas: Yeah, yeah.

0:32:20 Thomas: Yeah, but that said, we have to at least cover some of the stuff because some things have happened. I, it's been so much. I've told you that I haven't had time to, you know, I just haven't had the time or mental energy to want to follow this trial, and I can't wait to actually get into it when we do. I also want to wait till the season's finished. You know, I like to binge.

0:32:35 Andrew: Yeah.

0:32:36 Thomas: You know what I mean? Like, I don't want to get through like half the episodes and be like, oh man, I want to see the rest of the season. You know? I like too. I like, like the way till they're all available on demand. I can binge the season, this season of Alex Jones. Uh, but I, even I have seen so much stuff about this phone. Apparently his attorneys the, handed over like, not just messages, but I think like a full copy, like a clone of his phone to the other side. And then even, well, let's get into it. Maybe I should let you tell the story. How did this happen? Isn't that privileged? Shouldn't they have given it back? Just a million things. What do we want to answer today? Today.

0:32:44 Andrew: Here's here's how we learned this and I'm, I'm gonna have you queue up 508 and I'm gonna put this in context, this is cross-examination of Alex Jones, this is Wednesday's testimony, and by and the way, uh, the plaintiff's lawyers promised, right, that there were going to be some bombshells, and this qualifies as one of the, like a bunch of people wanted to come after me on Twitter good-naturedly of the, uh, I thought you said that these Perry Mason moments don't happen, um, you know, this is the exception that approves the rule, uh, don't, why don't, play starting at 508 and we're gonna just listen to this. This is, if, if Mark Bankston never tries another case for the rest of his life, like that would be George Costanza leaving on a high note, so yeah

0:33:15 Thomas: Yeah.

0:33:42 Thomas: Fair, they don't, he should have just left the courtroom honestly is

0:33:58 Andrew: You could have

0:34:00 Clip: You know that 12 days ago, 12 days ago, your attorneys messed up and sent me an entire digital copy of your entire cell phone with every text message you've sent for the past two years, and when informed, did not take any steps to identify it as privileged or protected in any way, and as of two days ago, it fell free and clear into my possession, and that is how I know you lied to me when you said you didn't have text message about Sandy Hook. Did you know that? I see, I told you the truth, this is your Perry Mason moment, I gave them my phone, and no, I don't know this happened, but I mean, I told you, I gave them a follow over, you said, you said in your deposition you searched your phone, you said you pulled down the text, did the search function for Sandy Hook, that's what you said, Mr.

0:34:56 Clip: Jones, correct, and I had several, several different phones with this number, but I did, yeah, of course, I mean, that's why you got it, no, Mr. Johnson, that's not what happened, my lawyer sent it to you, but I'm hiding it, okay, Mr. Jones, Mr. Jones, just answer questions, there's no question, Mr. Bankston, also only ask questions, sure, Mr. Jones, in discovery you were asked, do you have Sandy Hook text messages on your phone, and you said no, correct, right, you said that under oath, I mean, if I was mistaken, I was mistaken, but you got the messages right there, you know what perjury is, right?

I just want to make sure you know, before we go any further, you know what it is, yes I do, I mean, I'm not a tech guy, I told you, I gave in my testimony, the phone to the lawyers before, whatever, and so you got my phone, but we didn't give it to you, no, Mr. Jones, one more time, please remember, if you need to assert a fifth amendment, you can't. And even though you can do that, but you testified under oath previously that you personally searched your phone for the phrase Sandy Cove, and there were no messages. You said that under oath. Yes. And you lied when you said it. No, I did not lie.

0:36:16 Clip: Emails. You testified yesterday. You don't have to.

0:36:17 Thomas: That as you

0:36:17 Andrew: So, Yeah, that's it yeah yeah, I've, I've, you tap out at that point and now there's so much I want, want to talk about with respect to that, that I, there's so much in terms of you know what happens in a trial, this is what happens by the way when a witness who is lying on the stand is caught in a lie, like they will repeat those lies, right. So, so if you're sitting there going, well, it wasn't quite Perry Mason because, you know, at the end he said, uh, and, and, and you lied to us, and Alex was like, no I did not lie, well right you never get, you never forget that, all right, it's

0:36:18 Thomas: Had enough okay, right Yeah. That's right, I

0:36:50 Andrew: Still proof right yeah, I declare yeah, no, it, but you got you yeah

0:36:51 Thomas: Killed Ned Johnson we don't ever get that yeah, but him saying this is your Perry Mason moment is as close as we're ever gonna get before

0:36:59 Andrew: And And Alex Jones, ultimately, right? And again, this is what you have to do with a hard witness. Mark Bankston does as great a job on cross examination with an intractable witness as as anybody that that I've ever seen. When you have that, you've got to ask the same question seven times because they're not going to answer it. And And the question was, I asked you if you had searched the phone for Sandy Hook, and you said you searched and produced no records. Correct. And ultimately, right before the end, you got Alex Jones to say, yes, I said that. And right, that is now, you know, do you want to say is it admitting to perjury? We can talk about that in sort of the, there are a few recurring questions that I've seen pop up in connection with this. Uh but uh but I want to get to that at the end because I want, I want to explain two parts that are very, very significant here.

0:37:49 Thomas: We do that, can I do the comedy Notes of this, because this was expertly directed. The cinematography on this, I wish you, you could see it. It literally was filmed like either Curb Your Enthusiasm or maybe like Modern Family, like that level of filmmaking, because you've got the camera on the guy asking the question. And then he says in the beginning, he's like, did you know that your lawyers handed over to the thing? The camera goes over to the guy with the mullet that I haven't seen until this very day and zooms in a little bit on him to get that extra mullets out of like, yeah, that's the mulleet did this, like, that's it's. It praise the camera person because that's incredible filmmaking right there.

0:37:50 Andrew: Yeah, yeah. Yeah, And let me amplify, I, I know you did that for the comedy beat, it is significant, notice I had you play two minutes and 15 seconds of uninterrupted courtroom question and testimony, right, there was not an objection by McMullet, right, like there was nothing from that table. The second somebody says, hey, I happen to have a copy of your phone that your lawyers get, like, I, you, I I would Absolutely.

0:38:43 Thomas: Yeah, Yeah, Jump out of your skin, right? Yeah.

0:38:55 Andrew: And that didn't happen. And a pin in that. Because what did happen was afterwards, I imagine there was probably a rather unpleasant conversation between Alex Jones and his lawyers when he left the courthouse yesterday. And as a result of that, this morning, I also watched the emergency, the hearing on the emergency motion filed by Alex Jones's lawyers that seek to strike that material, order the plaintiff's counsel to destroy it and not disclose it to anybody. And also for a mistrial, which, spoiler alert, the judge called the the motion for mistrial a joke in denying that.

0:39:10 Thomas: A Mystery Well, As as we, I have to keep in mind, this isn't the trial really. I mean, I guess it is, but it's the the part to get the damages right, as we as we've discussed. So why, I don't even, I'll be honest, I don't understand understand a lot of what this has to do with the damages. You know, I guess if you're just doing the gotcha of also you lied, I, I suppose that plays into the like how culpable he is, I guess.

0:39:46 Andrew: Yeah, correct. Yeah, because he said, you know, we're going to we're gonna go bankrupt if you impose, you know, any fines on it. He's just Alex Jones is not trustworthy. Right.

0:40:11 Thomas: Okay. But the part where he's like, you did, you search for Sandy Hook, I guess, how does that speak to like the damages that they should owe, because he's already guilt, he's already defaulted on the fact that he's liable for this.

0:40:24 Andrew: Correct. Correct, but But that goes to the request for punitive damages, because when they asked for when they asked for documents related to Sandy Hook, he refused to turn them over. Right. He covered that up. He willfully interfered with the plaintiff's valid efforts to figure out what was going on in this case.

0:40:29 Thomas: Gotcha, punitive damages Okay, right, Right? That's why you're the lawyer and I'm not. I forgot about the punitive damages component of it.

0:40:45 Andrew: So Here is, as far as I can tell, what this document is, because you have to understand what it is and then how it wound up in the hands of the plaintiffs, and then what the argument is with respect to that

0:41:01 Thomas: Yeah. And why they didn't have to just hand it back right away or whatever.

0:41:04 Andrew: Yep, Yep, we're gonna go through all of that, okay. So I am inferring some, some of this from the hearing conducted this morning. But Norm Pattis, who is not only an Infowars contributor and lunatic, but represents Jones in the Connecticut case, right, which goes to trial, I believe, next week. Right. So we're going to have a lot of Alex Jones for the foreseeable future.

0:41:06 Thomas: Okay. Oh yeah. Jeez. The season two is coming out. They already renewed for season two, everybody. This is truly like the avatar movies of things. There's actually season two three and four are filming now as season one is still unfolding.

0:41:29 Andrew: Sure. Yeah. Yeah, that is indeed correct. That is true. Well, and look, you are more correct than you know, as I discuss the implication of this. Okay.

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0:44:46 Andrew: So, Norm Pattis, Alex Jones's lawyer in Connecticut, he sends this document to Raynal, who is Mick Mullet, Alex Jones's lawyer here in Texas, It right? Is over 300 gigabytes in length, right, so he shares it as well. Yeah, because it is Alex Jones's entire phone, all the emails, allthe text messages, all of attachments, all All the everything. Among the documents that were contained in that were medical records of the nine plaintiffs in the Lafferty case. OK, now that that is that is a crime in and of itself. Right. Like it is it is astonishingly horrible conduct. Conduct, and one of the things that plaintiff's counsel says here is, "The minute I saw medical records here, I sent that off to IT and I had them deleted and scrubbed, right? I do not possess that." Right, yeah, because it is a violation, of this is actually a HIPAA

0:44:56 Thomas: Wow.

0:45:05 Thomas: Am interesting.

0:45:44 Andrew: Violation. It,

0:45:45 Thomas: But is there a way that he can, put a pin in the fact that that existed? You know, how can he prove that that happened without, ah, okay.

0:45:51 Andrew: You would You would get, um, Bankston to write an affidavit that says, "I saw what appeared to be X and deleted them." Because, yeah, the idea that Alex Jones's lawyers, or that InfoWars, that Alex Jones himself went out and and pulled, we know they did dossiers on some of the plaintiffs in Sandy Hook. The idea that all nine of those named plaintiffs, that they had complete medical evaluation, sort of looking for ways to pick them apart, is is gross. So Pettis sends this to Raynal. Raynal's legal assistant then turns around and sends this to Bankston, to his co-counsel, copies Raynal and copies the other lawyer on Alex Jones and says, "Oh, hey, these are additional, the documents that we neglected to produce to to you, Bankston."

Right, opens and, this is 12 days ago, right, less than two weeks, it's the eve of, it is literally the eve of trial, right, opens them up and writes back, "This and does not appear to be responsive to our requests. Are you sure? You know that this was not sent in error?" And rain all right, McMullet writes back and says, "Please disregard, I will work on preparing a new one." Now, it is also important to this that they never prepared a new one. It was just, he said, "Please disregard."

0:45:58 Thomas: Okay. Right.

0:47:18 Andrew: Okay. And then plaintiffs immediately destroyed the medical records and sat around and waited. And they waited, you heard Mr. Bankston say they waited 10, 10 days. Here's why they waited 10 days. This issue is called inadvertent production, and in Texas it is governed by Texas Rule 193.3d, and it says privilege not waived by production. And, and let me take a pause here and say, in the kind of coat factory litigation that I did for, for 15 years, inadvertent production happens, right.

0:47:19 Thomas: So that didn't handle it? If you say please disregard.

0:47:53 Thomas: Yeah.

0:47:54 Andrew: Your legal assistant sends out a document and you're like, oh holy shit, you sent out the X and not the Y, you send back immediately and you say, hey, we inadvertently produced privileged documents, please let us know if you contest that, delete the prior document, uh, confirm that it hasn't been read, uh, confirm, confirm that you've made no copies and let us know. And usually that's how it's handled, Because you're all lawyers, but it's the same way that, like, tomorrow if if his grandfather dies and Raynal asks for a one-day continuance so that he can go attend the funeral, Bankston would agree to that, despite right, how much they hate each other. I mean, he gave him the finger in open court. Like that's literally that

0:48:19 Thomas: Because you're all lawyers. Yeah, yeah.

0:48:40 Thomas: Oh,

0:48:40 Andrew: Happened if you didn't. Oh, yeah. No.

0:48:41 Thomas: Wow. I missed that.

0:48:42 Andrew: Yeah. Right now gave gave Bankston the finger.

0:48:44 Thomas: Oh I thought Alex Jones flipped somebody out. Wow.

0:48:46 Andrew: No, No. Yeah, it was lawyers. It was it was fantastic. And it doesn't matter. Right. Like you would extend that courtesy because you want that same courtesy extended back to you. So that's that is typically how that happens, that how you remedy inadvertent production. Here's what the rule says. A party who produces material or information without intending to waive a claim of privilege does not waive that claim under these rules or under the rules of evidence if within 10 days or a shorter time ordered by the court after producing the party actually discovers that such production was made, the producing party amends the response, identifies the material or information produced, and states the privilege asserted.

0:48:46 Thomas: Okay, jeez. Uh-huh.

0:49:29 Andrew: If the producing body thus amends the response to assert a privilege, any party who has obtained the specific material or information must promptly return the specified material or information in any copies, pending any ruling by the court denying the privilege. So is the basis for the emergency motion that was made this morning by Raynaud all, uh, which was, hey, um, he asked me about it and I said, please disregard, and he went ahead and looked at it anyway. And this contains, clearly, you know, attorney-client privileged information, and Bankston's response was, um, literally said, "of course," pretty funny. It's like he cites Rule 193.3, so I know he knows how to read it, and they didn't comply with any of the requirements, requirements of Rule 193.3.

0:50:15 Andrew: Please disregard it as no legal authority whatsoever. I will work on preparing a new one. They never did, right? What you have to do is tell us which of this information should not have been produced, Identify the basis for that privilege, and assert it with respect to particular documents. And if you don't do that, then you've waived the privilege by producing it. If I'm right, your lawyer and we're sued and I send over a document that contains my, our attorney client communications, and I don't claw it back, and I know it. You say, hey, man, you sent me this letter. Or did you mean to do that? And I say, yeah, you know, whatever.

0:50:29 Thomas: Yeah.

0:50:55 Thomas: Please disregard, huh?

0:50:56 Andrew: Yeah, please disregard. Then the other side can rightfully say, Yeah, you did you not identify that this was Privileged communications. You did not demand that I destroy it or return it to you. I'm not going to that privilege is waived. And this is complicated by the fact that the reason, and spoiler spoiler, judge has already ruled against Raynall and Alex Jones on privilege, right? There's a lesser issue that I'm going to talk about. And part of that is because these are the documents, these are a subset of the documents that they refused to turn over in discovery, right. The discovery request was, give me, Alex Jones, all of your text messages, emails, whatever, whatever, related to Sandy Hook, and their response to that request for production of documents was, no such documents exist. Well, as you saw, right, as you heard from the stand, at least one such document exists, right?

0:51:03 Thomas: Right.

0:51:48 Thomas: So This Isn't really privilege, it's like they accidentally complied with discovery, right?

0:51:53 Andrew: Yeah. And it does contain, now that there is no doubt in my mind, Right. Raynaud Said, there's core privileged documents in there. And of course there is, right, there have to to be emails and that

0:52:02 Thomas: Yeah. There's gonna be, yeah. Sure. But they would have to go through find what those are and say, disregard the following, or delete the following things, don't read them.

0:52:14 Andrew: That is right. So Alex Jones's lawyers asked for a backup, which was, what, at minimum, we should be able to, uh, this court has a confidentiality order, and we should be able to mark them as confidential. And, uh, the response back to that was, um, but you have to go through the same process, right? You haveto designate the material and explain Blaine White's confidential. And And at this point, uh, plaintiff's counsel Mark Mark Bankston said there are two groups that I'm going to disclose this drive to today unless the court orders me not to. Okay, those two groups are, number one, the plaintiffs in the Connecticut case, right, uh, and that is because they have a joint defense agreement and sharing agreement that's been approved by both courts. And he said, and look, no ruling on confidentiality can change that, because we have an agreement to share even confidential documents, right?

0:53:07 Andrew: So we're going to produce that to them regardless. And the court basically agreed with that. And he says, and also, I have been requested by the January 6th committee to turn these documents over to them, and I'm going to turn it over to they, them, and again, even if it's confidential, uh, they would still have a right to see those documents. At this point, in what was, I literally there have been moments where I have literally laughed out loud, and this morning watching that hearing was one of those moments, because, uh, McMullet, Reynald, uh, said, "Well, if, if we were talking about the context of a subpoena," and the judge interrupted him to say, they're like, well, I think you're going to get one now.

0:53:17 Thomas: Yeah. Yeah.

0:53:47 Andrew: That's right. And I couldn't, I was just so, I was like, yeah, you're damn right you're gonna get a subpoena right now. So I you that the court then said, yeah look, I'm going to let you make an untimely motion, because it's been more than the 10 days, and it also reiterated the 10-day deadline, line, an untimely motion declare certain documents confidential. But I am not going to seal the entire drive. And so then Raynal says, okay, well, can I have 10 days? And she says, how about today? And he said, this is a lot of documents. And she's like, yeah, I know. But you should have produced this a year ago. And this is the crucial part. This trial is ongoing, going, right, the the jury may return a verdict today or tomorrow, and then we move immediately into the punitive damages phase. And what that means is, unless he can specifically identify, he being Reynald, can specifically identity the confidential materials to be so designated, the plaintiffs are free to use them in that second phase of the trial.

0:54:27 Thomas: Wait. I Thought we were in the second phase, oh?

0:54:55 Andrew: And Well, the third, then, if you want to describe it right. So this is damages, and then punitives come next right right, yeah, and so it's true. Think about it as being trifurcated as liability, damages, punitives, because each one builds on the prior one. You, right, don't have damages if there's no liability, you don't punitives if they're only nominal damages. And that, and again, that that has been Alex Jones's position. I don't think they're gonna get it, but their position throughout, out, this was, okay, we're here on damages, I'm going to ask you, the jury, to award one dollar, right, we call that nominal damages. Um, that was in their opening statement. Um, you need to determine you don't need to you can, you can do both together, but this court has determined, in the interests of, uh, efficiency and justice, that they were going to trifurcate. They're defaulted on the the first phase, uh, they've just finished the second, we're about to enter the third.

And so without a restriction, right, this is, you know, kind of classic, uh, situation involving, um, analogous to seeking a temporary restraining order, right, like without an order of the court, that there's nothing to prevent, uh, plaintiff's counsel from reading attorney client privilege information, giving it over to other people,

0:54:57 Thomas: Okay. Okay. And then okay gotcha yeah Yeah.

0:56:05 Andrew: Turning it over to the one six committee. And I have been checking in all day on the the Travis County 459th Judicial District website. And there are a YouTube page, and I have not seen any rulings as of our recording. Now, you know, it's still afternoon in Texas as we record the show. So it's possible there may be a limited ruling today, uh, the judge didn't say, you know, yeah, you gotta get through everything today, but basically when they asked for 10 days, she's like, I'm not gonna give you 10 days, I'm not gonna tell you that the answer is

0:56:11 Thomas: You Don't get like a pause, hey, can we pause everything right now because we, we effed up.

0:56:40 Andrew: No yeah That was exactly what the request was for. Let's pause, let's seal everything and give me 10 days to look through this and designate, you know, stuff as confidential. And the court was like, how about today? And, uh, you know, if you don't get it all done today, you know, I, that's fine, but, uh, no, I'm not giving you 10 days.

0:56:46 Thomas: Yeah. Time, time out, everybody.

0:57:01 Andrew: Yeah, so

0:57:01 Thomas: Here's What's blowing my mind, though, a lawyer, you and I are lawyers, no, not me. If I were a lawyer, I would think what you would want to do is the minute that guy started talking, the mullet should have flown right off of this guy as he jumped up and said, objection, because he at least had, like, a prima facie case of, like, yeah, I said disregard, so wouldn't you use that, like, you, on your view, as if you're the mullet guy, on your review you've, you've said disregard, you have at least an plausible argument that this shouldn't be happening right now. Wouldn't just absolutely nip that in the bud immediately and be like, objection, let's, uh, you talk to whatever the phrasing is can we go to your chambers here or whatever?

0:57:14 Andrew: Yeah.

0:57:40 Andrew: Sidebar.

0:57:40 Thomas: Sidebar. That's it. You would tackle the other lawyer

0:57:41 Andrew: Yeah, uh, 100, at that moment, like, you would object, you would demand a mistrial in front of the jury, right? You would say, this is outrageous that he has said this, uh, prejudicial statement in front of the jury. He sat there. I cannot, I cannot explain that I I can't So, it, is, I had this on the list of like questions I want to answer because we got answered again, and I know people, not everybody listens to every episode, so it's worth answering it again. There is no ineffective assistance of counsel claim in a civil case, right? So people are looking for, you know, is he stupid like a fox? Like, are they trying to lose on purpose? Is there, you know, some kind of, you unbelievable strategy that, no, there isn't, right? This is not the producers, right? Like, they, you can't do that. Your appeal, regardless of the effectiveness of your counsel below in a civil case, is confined to the the record.

Now you, you say, I would have adduced X fact at trial which would have made things different, and, um, you know, my counsel below was so stupid they didn't even do, I suppose, right? But, but that's, you wouldn't need to do what they're presently doing in order to make that happen. So, that, I just want to, I want to nail that down there. This is not part of a grand, grand strategy. Uh, this is not the producers, this is not a way, uh, to to get this reversed on appeal.

0:57:49 Thomas: Yeah so what the is he trying to lose. I know we already talked about that. But like, what, Yeah.

0:59:08 Thomas: Just nuts.

0:59:09 Andrew: Yep. I have seen disreputable, uh, Occupied Democrats level outlets that report this and that are are merging it with a 2019 story about Alex Jones's document production, uh, which contained child pornography, and I want to tell you Yeah, I I've taken a look into that, and as far as we can tell, what happened was, um, people send, think that it is because InfoWars has like picked fights with QAnon, and, right, like it's not enough, like they're not all on on the same conspiracy theory, they have different flavors of insanity. So people send emails to Info Wars that have embedded child pornography contained as attachments, those were then unread and were turned over to the plaintiffs from the Info Wars emails, and so they contained this stuff.

It does not appear to be a the actions of Alex. So if you are reading it as Alex Jones also turned over child porn and Alex Jones reads kitty, we do not have that evidence, don't do that. Alex Joans is enough of a of a comically horrible shit bag that, like, you do not need to invent stuff or take bad faith takes from disreputable organization. Don't repeat the child porn claim, it's just, it's not, it's not correct. So that's the explanation on that. Folks asked about, in connection with John Eastman, wouldn't right there be crime fraud exception to all of the privilege stuff anyway, and the answer that is no, right?

That is, the fact that your client is presently committing perjury does not invalidate legitimate attorney-client privilege going, going back to 2019. So this fact that it would be useful in demonstrating that he is now perjuring himself on the bench does not prove that the privilege did not correctly attach the time.

0:59:09 Thomas: Oh. Yeah. Yeah. Yeah.

1:00:17 Thomas: No.

1:01:06 Andrew: And again, if the privilege is waived, the privilege is waive, man. Like, that is it. You could have the direct, like, hey, what should our strategy be here? And, you Raynal can write back, well, we're pretty effed. And, uh, all I can think of is we're going to do this, right? Like that, that is core attorney client privilege. It would never, ever come in, uh, unless the other side is dumb enough to give it to you. And when you say, hey, um, any problems with you, have it with me having this, you go, ah, don't, don't look too hard at that, right, please disregard, um, that, that's how it gets in. So this outcome would probably have been different if there were not ample evidence of prior bad behavior by Alex Jones and his lawyers. Right.

1:01:52 Andrew: If they had absolutely 100 percent, they, meaning Raynal and Jones's lawyers, had 100 percent complied with the rules and this was what happened, I would. And they had objected on the spot. It is easy to construct the argument. That's like, yeah, we're scrambling two days before trial to get them these late requests. And again, you've got to assume facts, not an evidence, right, to which they're not entitled. We're going above and beyond the call of duty. Everybody's working around the clock 24 hours. And I didn't quote the rule directly back then because I thought when counsel knew they immediately had privileged materials that they would do the right thing. We've always had an understanding on that. And so when I say please disregard, yeah, that is shorthand for I am invoking Rule 193.3 of the Texas, right?

1:02:42 Andrew: You know, everybody knows what that means. And it is beyond disingenuous for them because you could do that. You could make that argument. That argument lost here because of the prior serial failures of Alex Jones. And you heard the judge say that, right? The judge was like, you know, I don't like getting into the technicalities, but the argument is you technically didn't comply with the rule. And your response back is, well, they technically didn't comply with the, the rules requirements to return it to you. So I've got to read it and parse it out and figure, you Know, who technically complied with what and it seems like you didn't, Mr. Raynal, that's why you lose, right. So, right, I want to be careful about that because, yeah, you could absolutely make a case in a good faith basis that like, you're you're going to hold in a situation where everybody in the room knows what I meant.

1:03:31 Andrew: You're gonna hold me to that, all right? And again, this is in the discretion of the trial judge, but I would feel much better, uh, if I were the losing attorney appealing that in a situation in which, uh, I had clean hands, as opposed to, you I represented Alex Jones, which I would never ever do, so I didn't put myself in that spot. All

1:03:50 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:03:57 Thomas: Now it's time for T3B, Thomas Takes the Bar Exam, exam, where each week I attempt to answer a question about the law way better than Alex Jones's lawyers definitely would.

1:04:08 Andrew: Think you are ahead of them by any means, uh, that one might measure, but let's measure it mathematically. Thomas, question 288. In a civil action for conversion of her automobile, so same thing, a plaintiff seeks to offer testimony that, after after her automobile went missing, the defendant approached the plaintiff at her place of business and said, "I just stole your car. How does it feel to be stranded?" The business had security cameras that recorded the entire conversation. The defendant objects to the plaintif testimony regarding this statement. Is the plaintiff's testimony regarding the defendant's statement admissible?

1:04:19 Thomas: Wow. I'll turn it into a convertible. Okay. It's

1:04:55 Andrew: A, yes, as a declaration against interest. B, yes, because it is not hearsay. C, no, because the tape recording is the best evidence. Or D, no, because it is hearsay not within any exception.

1:05:11 Thomas: Just the hearsay real property exam now. Just the two hardest things, every single question. All right, it's a civil action, I mean that usually ends up mattering, let's see, see if it matters here, but stuff I gotta start noticing, I should have started noticing 200 questions ago, but just so, this is really tricky, it's like the difference between a hearsay but an exception to hearsay versus not hearsay is a big one. There's also the best evidence rule creeping in there, I, seems weird, is that, you know, if somebody commits a crime on me and during, like, somebody, you know, beats me up and during that they say stuff, for example, I guess maybe this isn't exactly during the crime, but like slightly after crime, says something to me, it seems weird that I wouldn't be able to get on the stand, be like, here's what happened, they crimed me and they said this, that seems weird, even if it would be like, well, there's a tape recording, so therefore you can't even talk about it, we have to just

1:05:14 Andrew: All right.

1:06:06 Thomas: Use the tape recording. I don't know why, it just seems wrong on that front. Now, recently we've talked about hearsay regarding the defendant, and I think that declaration against interest is what this feels like. That feels like the most obvious answer, because you're, you're talking about what the defendant said after they crimed you, but the the recordings is a weird one, the even being hearsay is a potentially weird one. All right, so A, yes, is a declaration against interest, that seems like the straightforward, that's usually what it is when you say what the bad guy said, like it's almost always that, I think. B, yes, because it is not hearsay, that, but it, but am I misremembering, it's actually not even hearsay, can't remember, I mean you're saying what you heard, you're, you're, yeah, it's, it's testimony, it's stuff about stuff that wasn't said in the court.

1:06:58 Thomas: I feel like it has to be hearsay unless just, you some weird definition thing makes it not hearsay. It's close. A and B are both still alive, live possibilities. C, no, because the tape recording is the best evidence. Don't know, man. I think best evidence rule kind of makes sense here. It would be weird for the defendant to do it.

Well, maybe I, the the theory is like actually the recording wasn't as bad as the plaintiff is making it out to be, so I guess that makes sense, but it'd be funny to be like, no, there's even better evidence of my crimes.

Uh, okay, so I, I mean, C is a possibility too, and then D, no, because hearsay, not with any exception, I think I'm eliminating D pretty solidly, I, I think that's a solid elimination, but A, B, and C are all very plausible to me, I think, think I remember you saying that even like tape, even recordings of stuff is hearsay though, it's till things being said not in the courtroom. Am really twisted up. It's A, B, or C. I honestly don't know. I think I'm gonna just, because I can't, I I don't feel confident in anything enough to like pick one of those three. That's a weird, that's like a very, very detailed, smart answer. So I'm going to stick to my basic safe answer, just in case that's it. Because I think that strategically, since I can't even eliminate two of them, I think that's the best thing to do.

So I'm gonna say A, yes, is a declaration against interest. This would be the rare time when someone comes into my law office that I say, you know what? I can' t even second chance law firm you. I can only second, second, and third chance. A, B, and C are all pretty plausible to me, but I'm going with A.

1:08:28 Andrew: And if you'd like to play along with Thomas, you know how to do that, just share out this episode on social media, include the hashtag T3BE, include your guess, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune, fame and fortune not guaranteed, and

1:08:40 Clip: And thank you, Let's go!

1:08:41 Thomas: And now it's time to thank our new patrons on patreon.com/law. Enjoying all the goodies. By the way, recently we did the Q&A on YouTube, and the high quality audio went out on the feed to patrons, of course, as it always does. Just want to say the questions were great, and the voting on the questions was really great. Thank you for listening to my pleas to do that. That really made it easy to see which ones were most in demand, and all that is patron stuff you can do on patreon.com/law. If you go there and pledge as little as a dollar, one dollar, for all that. So let's thank our new patrons. I think it's my turn first. Thank you to JustListening, Michael U, Grant Cosper, John, Bob, Deanna, California native just escaped 12 years of Arizona, now in North Carolina.

1:09:28 Thomas: I'm just trying to turn red states blue. Oh, nice work. MissWrenBird, Brit, Gregory Yoon-Nicotera, Andrew Thompson, and Shani Fagen. Your turn, Andrew.

1:09:40 Andrew: A big thank, thank you to sselph with two S's, Chatoyer Huggins, Will Gunther, Peter Hoggan, Jessica Galvin, Alexander Goodrich, Tom Gerace, Maxine Vandate, nice. TMoney2007, yeah, I'm with you, Team Money, and Right-wing cruelty isn't a bug. It's a feature. You're damn right.

1:09:55 Thomas: Another Reminder, any Law Awful Trials we get up to, you're going to want to be on that Patreon to get access to them. So another reason to pledge, and that's our show, thanks so much for listening, looking forward to the next episode, tune In For patrons.

1:10:16 Andrew: I I Yeah.

1:10:17 Thomas: Sunday. Night.

1:10:17 Andrew: Do we want To do We get a little preview?

1:10:20 Thomas: Well. We will, yeah, we're, we're interviewing with Matt Ho, the Green Party candidate that we've talked about in past episodes, has agreed to come on the show, we, we don't know how the interview will go, what it will be, but that, will be in the next episodes. So We'll

1:10:34 Andrew: And It Will be, and we've got updates on what's going on, uh, with, with that, crucial North Carolina senate race, so, uh, I can't wait for Tuesday's episode, and, you you're a patron, you'll have less time that you have to wait for it.

1:10:47 Thomas: See you then.

1:10:47 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.

1:11:21 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.