OA629: Hack Judge Hands Trump a Win. What Comes Next?

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 629. I'm Thomas. I seem to be congested for reasons I don't know. Sorry about that. Andrew, how are you doing?

0:01:26 Andrew: I am okay. You know, it's 105 outside, so.

0:01:30 Thomas: It's only 105. That's incredible. I literally, without any irony, on I think it was Wednesday or Tuesday? No, Wednesday. I was picking up the kids and I thought to myself, huh? Oh, it's only 108. And I was like, God, that is insane. Cause the previous day it was, this is not an exaggeration. It was 115. And so like that, I was like, wow, 108, that's so much cooler. Mind you, I'm, we're still dying. Like just walking to the classroom and back.

0:01:32 Andrew: Oh, yeah. Right, right, right.

0:02:00 Thomas: It's not safe out there. Jeez.

0:02:02 Andrew: Well, I've got the AC cranked up, except not here in the recording studio. So, yep, there we go. Let's, yeah,

0:02:07 Thomas: So let's be quick. All right. Four minute episode, everything you need to know, but I'm excited to talk about, well, I'm not really excited to talk about because it's outrageous, the decision. I definitely caught up with some Aisle 45, make sure everyone's listened to that, but there's much more to talk About. I got to start us off with a Thomas is wrong that I, this is blowing my mind.

0:02:16 Andrew: Oh,

0:02:26 Thomas: This is blowing My mind.

0:02:26 Andrew: I, I saw this on the spreadsheet and I, I thought this cannot be the case.

0:02:32 Thomas: Yeah. Someone emailed, an intrepid saint of a listener who's just like, Hey guys, I'm pretty sure there's not a golf course on Mar-a-Lago. And I was like, all right, this is not true. Like that's not, this is some Berenstain Bears level kazam or whatever that was. This is insane because I look it up and I'm like, oh no, it says Mar-a-Lago club, you know, $200,000 a year. It has tennis courts, but Mar-a-Lago is apparently a, just a merely a social club with tennis courts and no golf course. And like, I can't imagine I've what have I done with my brain, Andrew? Cause I have, have memories of seeing Trump like in golf attire at Mar-a-Lago when someone's having a wedding or something, you know, am I losing my mind?

0:02:35 Andrew: Right. Yeah.

0:03:12 Andrew: With with Nelson Mandela? Right? No.

0:03:16 Thomas: No, but for real, there was a, after, I think shortly after he wasn't president anymore, there were a bunch of these viral videos of like, look at this pathetic guy, just like, crashing people's weddings and like trying to get attention. I guess it's just that he always wears golf attire, or he wears maybe the stuff he wears for tennis looks like golf. Anyway, one way or the other, this has blown my mind.

0:03:33 Andrew: Donald Trump Does not play tennis? I mean, come on.

0:03:35 Thomas: You There's the famous picture of him playing tennis and it's hilarious. There's

0:03:37 Andrew: No, I know But I just mean like play, you is doing a lot of heavy lifting in that sentence.

0:03:41 Thomas: Yeah. There's A tweet by some Trump sycophant that was like, he has a better backhand than Serena Williams, he's got a bet, and I've, I hope it's a joke, but it's, it was like the tweet version of that guy who does the paintings, uh, Anyway, this is, this has, has blown my mind. Mar-a-Lago doesn't have a golf course. I'm shook. I was Googling forever. I will never let this go, because I think we've been Berenstain Bears. It's, it definitely is a golf course, except it's not. We're just confusing Bedminster, which is in New Jersey, and we're, combining the two. And I'm glad to hear that you've also made this mental mistake, cause I was a hundred percent convinced that there was a golf court, um, foreign, foreign intelligence agents, exclusively foreign intelligence agents who are trying to get close to the document shed, maybe that's the entire point of this whole thing is he's like, if I have an unsecured nuclear document shed, I could get so many spies, Russian spies and other and every country spies to pay the exorbitant fees for my social club.

0:03:52 Andrew: Right. Right, right, oh, Well, who pays six figures to to join a tennis and social club Yeah. Yeah, spies, right. Yeah. Plausible.

0:04:42 Andrew: I I would love to say, oh, come on, there's... there's absolutely no way, but like there's no bottom, there's yeah, oh,

0:04:42 Thomas: Yeah. Not, that's not zero percent that could be as I always say that there's non-zero, but yeah, that's. Thank you for the email. That's incredible. I, it sucks, cause there's a lot of funny golf jokes that have come up on this whole thing it. No, we'll be accurate. I Can switch it to tennis or just, hedge you fund socialites who just have nothing but money to spend on a social club where nothing, apparently no golfing happens. Boring boo.

0:04:59 Andrew: We're gonna continue to make those. Yeah,

0:05:10 Thomas: All right. Well, anyway, that blew my mind. I had to, had to talk about that. Crazy.

0:05:09 Andrew: All And I want to bring everyone up to date, so you mentioned, we covered, it was really like 70 minutes of me screaming into the void on Cleanup on All 45, the absolutely bonkers order that that Judge Eileen Cannon, Federalist Society weirdo, handed out, you know, of course, in between opening arguments. Record? So listen to that episode. If you want to know exactly how insane it is, I would just summarize it as somehow Donald Trump's lawyers managed to get injunctive relief leave without filing a complaint or filing a single affidavit from any witness under oath, under penalty of perjury, as to any kind of injury, let alone irreparable injury. And again, I cannot overstate that attorney argument is not evidence. There was zero evidence before the court, and the court granted it anyway. So if you want to know why Eileen Cannon, Federalist Society weirdo, is a Trump hack, listen to that episode of Clean Up on All 45.

0:06:11 Thomas: Clarification on that, because I think to you, this makes a ton of sense. I think, too, non-lawyers, they might be thinking, well, what do you mean? Like lawyers make arguments and you make an argument and like, maybe the, the judge is convinced by the argument. Can you just clarify a little bit about what you mean by like, just attorney argument isn't, doesn't normally cut it with these things.

0:06:15 Andrew: Uh-huh.

0:06:29 Andrew: Sure. So what is evidence in court? Evidence in court includes testimony from witnesses and documents that have been authenticated. And when you do that, when you put on witness testimony, or you introduce documents into evidence, that is subject to the rules of perjury, if you forge the document or your witness lies, they can be prosecuted. Again, not often, doesn't happen, but that's the whole, like, you know, you raise your hand and you say, I swear, you know, or affirm, to tell the truth, the whole truth, and nothing but the truth.

0:07:04 Thomas: And yeah, and God can smite you too. That's probably part of it.

0:07:07 Andrew: That's also, also a possibility.

0:07:08 Thomas: I wonder why that isn't cited more in the like, hey, they swore before God and God didn't smite them. So I guess it must be true. It's

0:07:10 Andrew: Yeah, Yeah. The difference, as, right, an attorney, I'm free to argue whatever the hell I want in court, and I cannot be charged with perjury for my argument, I, right, can say this is the biggest travesty and injustice since, you know, whatever, like, and, it doesn't matter, that's not perjury, because attorney argument is not evidence. And what Donald Trump's lawyers, and again, we have emphasized this, is Jim Trusty, well-known D.C. criminal lawyer, who, who knows better than to do the, the things they've, that he done in this case, they have deliberately done, pled in this bizarre way in which even judge, Judge Cannon says, well, procedurally irregular, dot, dot. It is not procedurally regular. It is improper.

0:07:53 Thomas: Yeah. It didn't even seem like, as we've gone through, as you went through that complaint, even I am thinking like this isn't even causally related to what you're asking for, really. It's a mess. It's this, I don't know if you were angry enough, Andrew, you did a good job. But like this is an absolute outrage. This is a judge that has no business being a judge, apparently. And I am very concerned about this undermining. Look, I know that a lot has been undermined in our system, but like this, this adds much more fuel to the fire than than would have been otherwise. The fact, you know, that MAGA Republicans can point to an actual ruling by an actual sitting federal judge as proof of, you know, their whole thing, and the less of that the better off we were as a country, and so any, incidentally, more of that is just killer, and it goes to show how important these judicial nominations were, and how crucial it was that we had the 50 senators, the exactly. Exactly.

0:08:20 Andrew: Correct. Correct. Yeah. Yeah. Yeah. Absolutely.

0:08:53 Thomas: Bare minority to not, guess, to be able to fill a bunch of these seats with not Judge Cannons.

0:08:59 Andrew: Remember that. And again, I don't know when Judge Cannon was appointed. But but remember that over 100 judicial seats were stolen from Barack Obama by the last two years of Senate gridlock, thanks to Mitch McConnell. So a lot of people want to know what comes next. Right. And that's what we're going to talk about here. It's hard for me to get past the the anger. I do want to talk about the masterful way in which the DOJ litigated in this mess.

0:09:08 Thomas: Yeah.

0:09:26 Thomas: Well, Well, Good teaser to what we're just about to cover. And before we go, that, though, Q&A tomorrow. YouTube, everybody, come watch. Come, come interact in the chat. Morgan's always there. You know, we're hanging out in the chat. We're making fun of Andrew's lighting, you know, just, just good old fun stuff.

0:09:40 Andrew: Yeah, it is 70% making fun of me in various ways. So yeah,

0:09:47 Thomas: It's lot of fun patrons, of course, still time to get your questions in on that patron question thread and vote on the questions that you want to hear asked. And that's tomorrow. As you're hearing that, I guess it could be today for you. That's Friday, September 9th at 4 p.m. Pacific, 7 p.m. Eastern. You'll see, share us on all the social media, all that good stuff. We'll see you there. Can't wait.

0:09:58 Andrew: Absolutely.

0:10:05 Clip: Treason is treason.

0:10:10 Andrew: So what comes next in the Mar-a-Lago case? As you are listening to this, And again, it could be 1159 p.m. Eastern Standard Time the way it was with the last couple of filings. But by Friday, the parties are required to submit to Judge Cannon their joint status report addressing who they might like to see appointed as special master, the scope of what the special master can do, all of the kind of details that Judge Cannon. And then again, I'm going to be overly fair to her because she's a hack and doesn't belong on the bench.

0:10:44 Thomas: No, don't do it. Don't be overly.

0:10:46 Andrew: Right. It is not inappropriate for a federal judge to leave these kinds of issues up up in the air and say, like, well, if the parties can work this out, I have absolutely no idea how you would go to work this out. Because if you're Trump's lawyers, you're just going to sit there and be like, I propose that Don Trump Jr. be named the special master and that we get an infinite amount of ex parte communications with him, which, by the way, that infinite amount of ex parte communications with the special master requested in the initial motion. So if you think that, like, they won't suggest Don Trump, Jr. as the special master, they pretty much already have.

0:11:24 Thomas: For our purposes, you in case people aren't also aisle 45 listeners, what special master even going to do? What is the point of this? It's just somebody who's going to like go through and sift through the stuff. It's like a taint team, right? But does this accomplish for anybody. I don't know.

0:11:36 Andrew: It Exactly right. It accomplishes Delay for Donald Trump, uh, into a DOJ investigation. So, you let me take a step back. Monday, Cannon granted Donald Trump's whatever you call it, and an asterisk in that, yeah. Yeah, it's seriously like crayon on a napkin that was like, make the DOJ stop investigating me for a while because I've committed all the crimes.

0:11:41 Thomas: Okay.

0:11:53 Thomas: Napkin. We grant your napkin.

0:12:04 Andrew: And that was framed in a bunch of overlapping contradictory stuff that makes no sense. That is, right, number one, the allegation that the search warrant inappropriately took some of Donald Trump's stuff, personal stuff, right, like the passports, to which the answer is, as we have talked about on this show, no, um, right, yeah, and that then makes that evidence, it is prima facie evidence of having violated 18 U.S.C. 793f, that that non nuclear secrets, that non material relating to the national defense, is commingled with material relating to the national defense, and that is conceded by Donald Trump, right.

0:12:22 Thomas: Yeah. You inappropriately put your stuff in the nuclear secrets.

0:12:47 Thomas: That's interesting. I want to pause on that, because I keep coming up with equivalent scenarios, and I'm now realizing none of them, I think, are adequate. Quit, and correct me if I'm wrong, 'cause I keep wanting to say, yeah, it's like if you had a bag of drugs and you left your keys in there, and then they took the bag of drugs, and you're like, "You got my keys already." That's a good example of like, yeah, but, you you had to, that's, that's totally appropriate, they might give you back your keys, but, like, it's not inappropriate that they took it. But that doesn't even cut it, because, as you just said, I can't think of an equivalent example where the fact that you put your keys in the drugs is part of violating the a law, like, that's, if there was a law that's like, you can't mix keys with drugs, imagine that scenario, then, and you're like, no, right? Oh,

0:12:49 Andrew: Right, right, um, that there's a law that says, and I believe that there is, although precious little cinnamon bun, that criminalizes both, uh, maintaining an instrumentality of smoked cocaine, i.e. a crack pipe, and criminalizes, you know, rock cocaine, and hey, I want back the crack pipe, right?

0:13:46 Thomas: And you know, like, give me back my crap, that's mine, yeah, okay, that is a good example, yeah, it's like that, it's even more absurd than you might think, god.

0:13:50 Andrew: Yeah, yeah. So that order came down combining that notion of, uh, you have stuff that's intermingled with, okay, you said you did a privilege review, but we, we, we buy into, without stating it explicitly, we buy into the vague assertions of bias on the the on part of Donald Trump against the Department of Justice, which I'm not kidding, go back to that, complete nonsense about Peter Strzok and Lisa Page, and how, I I mean, just stuff that is beyond the pale. There's absolutely no reasonable suggestion that the team here did anything inappropriate. The things that Judge Cannon points out, like, and some of them were even from the neighboring office. Well, you know, again, I covered that one on Cleanup on All 45. But like, these are just laughably bad arguments about potential bias.

0:14:44 Andrew: I will leave you with this one, because, because I didn't say this on Cleanup. This judge said with a straight face, "It is important that we make sure that we avoid all apparent perceptions of any potential conflict of interest," says the judge appointed by Donald Trump adjudicating the matter over Donald Trump. So,

0:15:08 Thomas: One would be, okay, then you recuse, and, like, a Clinton or a Book or even, like, a George W. Bush judge should take this on, well,

0:15:15 Andrew: Yep. Absolutely, assign this to the most conservative friend you have who doesn't owe his job to the plaintiff, or, again, whatever move ant like, he's not even a plaintiff, but to the person requesting relief from you. How about we not allow that to be the person who got you your a lifetime appointment, for which you are manifestly unqualified? But, yeah, no, but that level of potential conflict of interest never occurred to Judge Cannon.

0:15:40 Thomas: The other part I wanted you to answer was, what is those unlimited, what's the message, it's, you can, like, text the special master, what was that, and

0:15:48 Andrew: Ex parte means communicating. That's a single party, right? It means communicating with the special master without telling the other side what you're doing.

0:15:57 Thomas: So, Trump wants to be, at their side, would want to just, what, have, be able to, like, get all the information about, I'm

0:16:02 Andrew: To back channel to the specialmaster whenever they feel like it.

0:16:06 Thomas: Just wondering, like, effectively, what does that accomplish, given, given that,

0:16:09 Andrew: You could literally ask the special master anything, right? What's in those documents? Hey, uh, you're gonna make sure that you don't pick out, right, like, use your imagination, uh, those requests would then not go to the Department of Justice, they would not be shared with your adversary, and that's what ex parte means, yeah, that's why it's so bad. It was galling that they requested that. So the judge said, hey, all right, you guys got a week, get together, come up with the points that you agree on, and we are waiting, that will come out tomorrow, today, as you're listening to this, and then we will record over the weekend and give you a breakdown of how bad it is on Tuesday. But I want to flag for you, I, I want answer the question, can the DOJ appeal, right?

How does that happen, what, what weapons are left? And here I want to flag, friend of the show, has, uh, been on the show, Cal McClanahan from the National Security Counselors law firm, they wrote an outstanding article, I will link in the show notes, that makes an incredibly good point that I wish I had made first. So I'm a little bit mad

0:16:25 Thomas: Oh okay, yeah, gotcha, right,

0:17:10 Andrew: About that. And it's based on a principle that I've talked about occasionally, but not nearly enough in the age of Trump. And you cannot always immediately appeal everything. Right. I know it felt like Donald Trump, like the second something went wrong, it was like, OK, well, now he's going to appeal and then the Supreme Court's going to reverse and it's going to be fine for him. Right? The question of, as a general rule, can you immediately appeal an order appointing a special master? In most cases, the answer to that is absolutely not. Here, I think the answer is absolutely yes. And I'm going to get to it. But let's take a look kind of at the background law. I thought this would be good way to kind of mix together an explainer with what's actually going on.

0:17:49 Andrew: So the rule comes from, was codified by a Supreme Court decision called Cohen versus Beneficial Industries Loan Corporation, 337 U.S. 541 from 1949. 1949. And it says this, as a general rule, only final judgments are appealable, right? That is, you go through, you litigate, and, you know, you win some motions, you lose some motions. But you wait until the end of the trial, right, when the judge has ruled on the merits. And that's when you get to appeal.

0:17:49 Thomas: It, that

0:18:19 Andrew: Yeah, that's Otherwise, you'd appeal everything. And that is now codified at 28 U.S.C. 1291. "The court of appeals shall have jurisdiction of appeals from all final decisions of the district court of the United States." Let me pause to say I don't even know what that would mean here. I'm serious, because there isn't a complaint, there wasn't a motion under Rule 65, there isn't an affidavit, there's nothing for the court to decide. So I, I don't know, this, this entire proceeding is nonsense. Again, usually, like, if I move for, you know, we talked about this when, you know, in the Trump taxes case, right, where Trump lost on various discovery motions and actually had to turn over to the court his tax returns and, know, they were you marked confidential. And then, you know, it we had to litigate on the merits, whether they could be produced to the public, and couldn't just immediately appeal the second he lost on that discovery violation, so, right?

0:18:18 Thomas: Makes sense, that

0:19:17 Andrew: Similarly, if you request a special master and it's granted or it's denied, generally speaking, you go ahead to litigation under the rules that have been established. But that Cohen case said, you know what, there are some, because this is what is called an interlocutory order, between, right, speaking, there's still, right? Much to be done. And the Cohen case was about a New Jersey law that required you to post a bond in connection with certain kinds of litigation. Andthe question was, if you lost on that bond order, could you to appeal that right away? And the Supreme Court said, yeah, this is the kind of exception to an interlocutory order that we want you to be able to appeal right away. That one where the interlocatory decision, number one, conclusively determines a disputed question.

0:20:05 Andrew: There, the question was, do you have to post the bond or not? Number two, that question is important and entirely separable from the merits of the action. And number three, that decision would be effectively unappealable after a final judgment is handed down, right? And all three of those are met with the bond, right? Like, you win or lose, right, you would not get a chance to seek relief on that issue later. So it makes sense to say, all right, something like that, even though it's not a final order, we're going to let you file an appeal. And today that's codified, it's, it's written in slightly different format, but, but it's codified at 1292(b), okay. Uh And it says a district judge, in making a civil action an order not otherwise appealable under the section, shall be of the opinion that such order, one, involves a controlling question of law, two, as to which there is substantial ground for difference of opinion, and three, that an immediate appeal from the order may materially advance the ultimate termination of the litigation, shall state so in writing.

0:21:02 Andrew: And then the court of appeals would have jurisdiction over an appeal of such action. Now, I don't know if you're seeing the potential problem here, but that is the district court judge gets to decide whether an order is appealable as a special class of interlocutory order or whether or not. And here, like, any fair judge would be like, well, of course you can immediately appeal this order. But we don't have a fair judge, we have Judge Cannon, Federalist Society weirdo. So this is the brilliance of how the DOJ has litigated this. Based on argument, and I've read the oral argument transcript, they essentially pushed Judge Cannon into granting this relief as an injunction under Rule 65 of the Federal Rules of Civil Procedure.

0:21:51 Andrew: And the order explicitly says that, right? It says this is injunctive relief. Interlocutory appeals under 1292(b). As it turns out, 1292(a) says the Court of Appeals shall have jurisdiction of appeals from interlocutory orders of the District Courts of the United States granting, continuing, modifying, refusing, or dissolving injunctions. So the fact that this was not characterized as just I'm appointing a special master to kind of, you help me with reviewing discovery, which is a power a court has to do. It was characterized as injunctive relief and included telling the DOJ how it can use the evidence that it has seized from Mar-a-Lago. That makes this rule immediately appealable under 28 U.S.C. 1292(a).

0:22:40 Thomas: Is some galaxy brain, I can't even understand that, so how did they pull that off without the judge, you know, because like if we're going under the assumption that this judge is, now, total hack for Trump, which I think is pretty safe, do you think the judge was aware of whatever this, uh, I don't want to say trickery, but whatever these maneuvers.

0:22:58 Andrew: I do not think the judge was thinking about the implications of Rule 65 being immediately appealable over and over again at oral argument. And this is really difficult for a lawyer to do in in front of any judge is they would repeatedly say, well, look, where is the basis for this under the federal rules of civil procedure? This is a civil action. What are the grounds? I need to know that so that I can effectively frame my opposition. And this is so bad, it's not even clear what section they're citing. They have cited Rule 41G of the Federal Rules of Criminal Procedure, but this isn't a criminal case. This is pre-indictment. And by saying that over and over again, it pushed Judge Cannon into saying, hey, I am granting this under Rule 65 of the Federal Rules of Civil Procedure. Really, really smart.

So the DOJ, we're going to know more, like I said, tomorrow when we get the order, we are to follow up on it. They can do one of two things. They can immediately appeal or they can take their lumps and work with it. I suspect it will be the former. But we'll find

0:23:20 Thomas: Yeah.

0:24:05 Andrew: Out.

0:24:05 Thomas: Well, I do not think we should ever, I say we, it is hard to include we in this, like, brilliant lawyering that is going on, I do think the side, I will not even say it is like the leftist side, the side in favor of not insane rulings that are complete insults to the rule of law, side, like, of things, I don't think should ever leave something this stupid unappealed, unopposed.

0:24:09 Andrew: Yeah. Yeah.

0:24:30 Thomas: You know, it just, it seems to me, I mean, unless, I'm missing something and you're going to disagree, I just feel like especially given how complicated this stuff is and how tough it is for the common person like me to grasp it, if something like this happens, a ruling like this, this happens, and it truly is just absolute quackery, insane, terrible stuff. And then it's like, but the other side didn't appeal to the average person. That's like, well, then they're just accepting that it's, it doesn't. So I don't think that's a good idea, personally.

0:24:58 Andrew: Hear you on that. The counter argument would be as follows. This appeal would go to the 11th Circuit. The 11th circuit has seven Republicans and four Democrats. So your odds of getting a three judge panel that has two Democrats on it is pretty low. Somebody can do the combinatorics, let us know via. In addition to that, all of those procedures have the opportunity for Donald Trump to then avail himself of legal maneuvers designed to delay. Right, you, get a favorable panel, while, now you move for en banc reconsideration, just, it, so the, the argument to the contrary would be, number one, not likely to get the relief you want, and number two, it would provide the opportunity for more delay and shenanigans. That being said, again, I am inclined to agree with you, and I'm inclined to hope that there are enough decent Republicans on the bench.

0:25:10 Thomas: Yeah.

0:25:55 Thomas: That's just what I was going to ask, because part of the premise of what I was saying is, if this is truly that bad of a ruling, because even, even Republican judges, I, have to be like, well, this is nuts. This can't be, you isn't it that level of terrible?

0:26:05 Andrew: Yeah. It, is, and it is that transparent, right? Because again, you you and I broke down on the show that they lied on the cover sheet. Right. Repeatedly, they failed to mention the related case before Judge Reinhart. They said that it was a statutory basis under Section 1. I mean, it's just, it is something that any real judge looking at this would go, well, obviously you can't do that. That, so, uh, I continue to be an optimist, and I continue to hope, uh, there are, again, I've litigated in front of Trump judges, um, fortunately no one, no one has attached this show in their oppositions, uh, but, uh, you know, and I've gotten a fair shake there. To have, not all Trump judges need an asterisk by their name, um, Judge Cannon does. You. And we've called that out.

0:26:49 Thomas: Yeah, Yeah. Some judges are just, judges, you, that are more right-leaning or whatever, and they would have been appointed by any Republican president. And, you know, obviously we're not in love with those judges or something, but there's a big difference between that and what we're seeing here. Right? Yeah. So when are we gonna know whether or not, like, how long do they have, that, to appeal again? Okay.

0:27:06 Andrew: Absolutely. Have 14 days from the entry of the final order, right? There has already been an order appointing a special master, but that is subject to the terms and conditions to be negotiated by and between the parties. And the time to appeal that order is still on the clock. So I think this will move pretty quickly. Yeah.

0:27:32 Thomas: Well, we'll look out for it.

0:27:34 Clip: What I hear when I'm being yelled at is people caring loudly at me.

0:27:39 Thomas: On to another item, we got a lot of comments and emails and everything about the, uh, the Alaska rank choice voting, uh. You want to do a little follow-up,

0:27:45 Andrew: I Do. I don't know that any of these, well, the Chris Kaiser's rises to the level of an Andrew was wrong, so I'll read his, first, Chris notes, and I, I guess, I'll ask a listener. I mean, this seems like firsthand experience, uh, these are practical applications that apparently deviate from what law and the rules appear to show. So Chris notes, number one, overvotes invalidate a ballot when counting the round of the overvote. So a ballot ranking one candidate first and two candidates second will only be invalidated if the first ranked candidate is defeated.

0:28:21 Thomas: Right? Yeah.

0:28:22 Andrew: We went back and forth on that. That makes sense. That's not the way the law reads, But

0:28:22 Thomas: That makes sense. Oh, interesting. Yeah. Cause you were pretty firm on like, no, it's just doesn't count at all.

0:28:28 Andrew: It looks like it says that overvotes shall cause the ballot to be segregated into an invalid portion. But maybe that determination is only made. Well, I don't want to further speculate and have Chris correct me again. If that's the way the practice works, that's a better way of putting it into practice than I thought.

0:28:46 Thomas: All right.

0:28:51 Andrew: So good. And then Chris notes, number two, there is a write in box on the ballot for every election. Al Gross dropping out did not add a write inbox. Again, contradicts what I have read, which literally was the fact that that he dropped out meant that they were able to, you paste over that as blank. But again, I'm for people being able to write in candidates, even

0:28:51 Thomas: Good to know.

0:29:11 Thomas: What was the evidence for this? Because is this the first election run under specifically these rules?

0:29:18 Andrew: Yes, and in fact it, it was run early because of the special election due to Don Young's death, right? They were anticipating having more time to kind of practice, and, you work out the kinks and and that sort of thing.

0:29:24 Thomas: Yeah, yeah. I I guess what I'm saying is if they're just saying there's always a write-in candidate, that doesn't necessarily prove

0:29:35 Andrew: Fair, that's a fair point, uh, but, uh, you know, Chris has been pretty reliable in the past, so All I can do is read the comments, so if I, if, if it turns out we do a Christmas wrong segment, I will, I'll be doubly happy. Just kidding.

0:29:40 Thomas: Sure, yeah, no. To, yeah. No, I think It's perfectly fine to, you note that, like, it's possible that there's, you evidence either way on this, and it's not for sure. You know, we'll know next I time they run an election. Yeah, no, because it seemed like you're reading stuff that was pretty solid on that. There will be four candidates, you Know, like four, four is the number of candidates. Five is too many, you know.

0:29:56 Andrew: Guess we will know. That's right. That's. Yep. Yeah,

0:30:07 Thomas: And so it would be weird to also be like, oh, also a box with infinite candidates. Like here's your only four candidates, I mean, it's not, you know, I guess it's not that weird, but like it is, it makes sense intuitively that, there wouldn't be a write-in in this case, but who knows.

0:30:20 Andrew: I agree with that. So let's agree that we will continue to monitor Alaska's elections. Next up, I really, really like this. Again, I assume Alaska resident or Alaska voter Brianna Tittle on Facebook notes the two Alaska native women Al Gross referenced when he dropped out were Peltola and the fifth place candidate that we talked about, Tara Sweeney, who did not move up. Because Tara didn't move up, there was only one indigenous woman in the running. And then Brianna says, also, marginally fun fact, Don Young grabbed and flipped that seat in a special election when Nick Begich's dad, Republican representative Nick Begich Senior, died in a plane crash. So there's some hope that Mary will hold on to it for a while. That so certainly would be good hope.

0:30:24 Thomas: So make clear this was what we're really confused about, where it seemed like this guy was like, yeah, vote for, you know, either the native women involved, and there were different parties, but you're saying no, no, it was actually this other person and it would make it make sense. Oh,

0:31:17 Andrew: Still different parties, but because, because Tara Sweeney was a Republican, still I infer that Tara Sweeney was a moderate Republican and not Sarah Palin, right? What was confusing was he dropped out and the two women who went onto the ballot were Peltola and Sarah Palen. And the idea of like, eh, figure out who you like as between the two of them seemed like a very bizarre thing to do.

0:31:43 Thomas: That's So safe to say, okay, maybe this explains a little bit of that. It's not, it doesn't look as much like he's about to be, you Know, exposed or or something, okay, yeah, no, that that's a great clarification. Yeah. Hey, I people are saying people are talking about it, Andrew, but people, thank you for the the email, because that makes much more sense.

0:31:55 Andrew: Some inferences were drawn and perhaps yes yeah and then yeah, absolutely, so thank you Brad. And then, and then the last one comes in from our friend Iran Segev, who perhaps due to Australian experience with ranked choice voting, you and I were talking about sort how you sell the result given the obviously pretextual but superficially appealing characterization by the Republicans of, like, we had 60 percent Republican votes and the Democrat won office. You know, what the hell happened here? And Iran notes the reason the Democrat won was because on aggregate more people voted for her than for any other candidate. And you read that, you're like, Yeah, yeah, duh, right the reason that's true is that in this system each voter gets more than one vote. Most people don't think about it that way, but it's a mathematical truth. At the end only one of your votes goes towards one of the final candidates, because your other votes went to unsuccessful candidates, but you You still had many different votes. And I think that's an interesting way to think about it, right?

0:32:40 Thomas: We covered this, yeah, yeah.

0:33:02 Thomas: Yeah.

0:33:02 Andrew: That like when you have RCV, it's not one vote with them in order, but you are really casting multiple rounds of ballots. You get to vote more than once and everybody gets to vote for up to the number of candidates that are on the ballot. I thought that was good a way to sort of conceptualize it.

0:33:18 Thomas: Maybe. I don't know, I think it's still a little interesting because hypothetically everyone still could have had quote-unquote a vote for Palin, just under the other ones, and it's, yeah. I don't know, it would. Yeah.

0:33:19 Andrew: Yeah, butyou don't get to it if she's dead last.

0:33:32 Thomas: I don't know. I'm not sure that clears.

0:33:36 Andrew: Well, in any event, I thought it was a good way of thinking about little orthogonal a to the traditional way of viewing RCV as one ballot with multiple options, but viewing it as, no, a bunch of different votes. So

0:33:50 Thomas: Yeah. But that only count in certain contexts. It gets really complicated. I think the I way we summed it up was pretty good that, again, had the most people had the two Republicans one and two in any order, in any Any order. Had that been like the majority of the ballots, then they would have won. Right. Yeah.

0:33:54 Andrew: Yep. Yep, then That's exactly right.

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0:36:52 Thomas: All right. Then another item. This is. I saw these headlines. I'm sure a lot of people are upset about this. Indiana and some other states, I think, are going to tax the student loan forgiveness just because,

0:37:05 Andrew: I thought I would do kind of a mini deep dive on this. I saw the same headlines and I wanted to figure out how this could happen and I have figured out how It can happen. And it fits within the narrative, right, which is, uh, Republicans hate you and they do not want you to ever think that government can do anything positive or have nice things, so they have to try and wreck it at every opportunity, and I feel pretty comfortable standing on that. So, let's ordinarily debt forgiveness is taxable as income. So let me give you a perfectly obvious example. Thomas, loan me $10,000. And you say, pay me back in five years. And then five years from now, you say to me, you know what? OA Like, has been good to us. That's all good. I forgive your $10K debt. And I say, thank you, Thomas. That is incredibly generous of you. I have to report that on my federal taxes, $10,000 in income.

0:37:06 Thomas: Oh. Yeah. Yeah.

0:37:58 Thomas: That all makes sense. Yeah, all you have to do is just switch up the the things and it'll be more appealing. Imagine if someone loaned Jeff Bezos a million dollars and then they're like, "Eh, you don't have to pay it back." We'd all be like, "Yeah, that's essentially income for him." Damn it, he he has to pay taxes on it. Yeah.

0:38:09 Andrew: Right. Exactly right. Then is the 10 to $20,000 that many of us are getting from the Biden administration to forgive student loan debt taxable? And federally, the answer is no. And by the way, this is not a thing that the conservative courts can do anything about. Out. OK, opposition is teeing up, and Ted Cruz thinks the Supreme Court's going to strike it down. And I think he's wrong.

And I feel, after having researched into this even more, strongly that I think this is going to survive at the Supreme Courts, largely because I think it's going to be impossible to disentangle all the stuff that's going on. Right. If the state of Indiana makes you pay on your student loan forgiveness but the state of Maryland does not, then two years from now, it's not just a matter of the Supreme Court saying, "Oh, we're going to reinstate that debt," which I think is a hard thing to do, but also we're gonna retroactively order states to issue income tax refund. Like, those are the kinds of things that the Supreme Court typically stays away from, and that certainly John Roberts would stay away from. And I'm hoping we'll be able to get somebody who is not a complete Clarence Thomas level hack. I know hoping for, you know, Neil Gorsuch or Brett Kavanaugh is not exactly a profitable full-time activity, but I think there's some hope here. Anyway, that's a slight rabbit trail.

I want to tell you about how the Biden administration made this possible, that it will not be reviewable by the courts. That is is the decision to forgive student loans as being non-taxable income at the federal level. And again, we're going to get like five weirdos who accuse us of punching left at this point because I'm defending the Biden administration.

0:39:14 Thomas: Wow.

0:40:02 Andrew: But but this is a deliberate thing that they did 15 months ago in advance to keep their campaign promise. And I don't care whether you hate Joe Biden or not, that is a fact. So we go back to the American Rescue Act of 2021, House Resolution 1319. This passed, was signed into law March 11th, 2021. It was the first substantive big thing that Joe Biden did through the Congress, right? That was not an executive order. And it was $1.9 trillion in COVID relief. And as we said, all of the details were written by the various committees in the House of Representatives, the Democratic House of Representatives. And so they were great, right? You didn't have to fight like through like, oh, and by the way, here's the special provision that allows, know, Steve you Bannon to steal a million dollars or whatever that you had to do within the Trump administration.

0:40:54 Andrew: So, under part eight, miscellaneous provision, section 9,675, that amends 26 U.S.C. 108 of the Internal Revenue Code. 26 U.S.C. 108 of the Internal Revenue Code is the section that deals with special interest for income from the discharge of indebtedness. Right. So again, general rule, discharge indebtedness, you get taxed on it. In March of 2021, the provision explicitly added, at the request of the Biden administration, added subsection F5, and F5 says gross income does not include any amount which, but for this subsection, would be includable in gross income by reason of the discharge, in whole or in part, after December 31st, 2020 and before January 1, 2026, of any loan provided expressly for post-secondary educational expenses, regardless of whether provided through the educational institution or directly to the borrower. And then there's a whole bunch of implementing stuff under that. In March of 2021, they wrote that into the law passed by Congress with bipartisan support, uh, Congress has the taxing authority, right? So again, this is not a thing you can go challenge.

0:42:02 Thomas: Yeah. This is not an executive order. Holy

0:42:09 Andrew: Yep, exactly right. It is amendment to the Internal Revenue Code passed by Congress and signed into law over a year and a half ago.

0:42:18 Thomas: Crap hold on it's almost like Democrats and Joe Biden were looking out for you and were trying to provide more ways to help you out if you're somebody who had a lot of college debt.

0:42:28 Andrew: The infrastructure that would let them do this. So all of those pieces about how they were just waiting and they never really wanted to do this and got forced into it. Well, if they never Really Wanted to Do This, Real hard to explain how the very first legislative action they did had a section. You and I, and we went through the American Recovery Act in a lot of detail. I didn't mention this provision because that bill is like 1300 pages long. I didn't see it, and neither did a lot of people.

0:42:31 Thomas: Yeah.

0:42:40 Thomas: Well, that's weird. Yeah.

0:42:59 Andrew: Congress has the taxing power. That law was passed. There's nothing the Supreme Court can do to undo that. But the question is, can the states screw with you? And the answer, as I have have discovered, is yes. And it depends on three separate questions, right? The first is whether the state, and the and the relevant term here is conforms to the Internal Revenue Code in terms of how the state adjudicates what taxes are owed. Most states do, some don't, Arkansas right and Mississippi, for example, uh reserve the right to compute taxable income independently of how the the IRS does. So why you would want to do that, don't I know, but

0:43:12 Thomas: Well.

0:43:39 Thomas: I California, um, actually did this, maybe in the other way, to try to help us out, because Trump's tax bill screwed over blue state, mainly blue states, states that have higher, high state taxes and property taxes, with the SALT deduction, capping the SALT deductions. And so California actually, and sorry, I know about this because it applied to me, California tried to help us out and passed a bill that said we can do this weird workaround to like prepay some, it's, I don't even understand it, and I'm an accountant. It's like you prepay, works out though. You prepay your taxes to the state and then you can use that as a deduction in place, kind of, of your state and local taxes, but only if you have a business. It's, anyway, one way or the other, they did this to try to help us out. And worked, actually. And so maybe that same principle applies in reverse.

0:44:27 Thomas: Maybe it's the same reason why evil states can be evil, I guess, if good states can try to help us OUT a little bit.

0:44:33 Andrew: Could be the case. So that's your first threshold question. Does the state conform to the Internal Revenue Code? If they don't, they're free to tax however, right? If they do conform, there's still two more questions you have to ask. The first is, at at what date did they last conform? So right, many states will just say, yeah, no, no, like we conform to the interpretation as set forth in the Internal Revenue Code and administered by the Department of the Treasury. No date, it continues going forward. But some states have said, yeah, you know what? As it turns out, we elect lunatic Republicans sometimes. And so maybe what we'll do is we will conform to the Internal Revenues Code as of a particular date and not automatically incorporate changes into that, right?

0:45:20 Andrew: For example, Minnesota, largely blue state, conforms to the Internal Revenue Code as of 2018. All so that's pre-2021, so it doesn't include the changes that were put in by the American Rescue Plan Act.

0:45:33 Thomas: Interesting.

0:45:33 Andrew: Right. There's a third category, and that is states that conform to the Internal Revenue Code post March 2021, that is post the American Rescue Plan Act, but decided to pass state laws specifically excluding Section 108 F5. And if you would ask yourself, come on, what states would monstrously do that? The answer is states dominated by Republicans from the top down, namely Indiana and North Carolina, that looked at that and said, oh, hell no, that's, we not a tax cut for mega corporations. So why would we say we're going to be bound by that and accidentally have some of our residents think the government is a good thing? So those states are then free to say, OK, well, we did not incorporate this. So we are, the decision of our taxing authority is that we are going to treat that forgiveness as taxable income. Come, um, a couple of things to keep in mind here, number one, you live in Minnesota or you live in a state that has not yet conformed, um, contact your state senator and ask them, this right, is something for which they ought to be open to amending the state statute.

0:46:00 Thomas: Wouldn't you know it? Yeah.

0:46:44 Thomas: Is that a mixed bag, though? Because, like, does that mean, OK, then we got to catch up, including the Trump tax bill or something or like some stuff that Republicans did? Did.

0:46:52 Andrew: They Could just add at 108 F5. Yeah. Yeah.

0:46:53 Thomas: Oh, well, there you go.

0:46:55 Andrew: Just like some of the states could exclude 108 F5, so Yep.

0:46:58 Thomas: Double-edged sword.

0:47:00 Andrew: Uh, goes without saying, right, don't take legal or tax advice from a podcast. So, uh, you're set to receive student loan forgiveness from the federal government due to Biden's plan, um, contact that your state taxing authority and, uh, ask whether that is going to be included as state taxable income or not. The good, the news is, as anybody who pays taxes knows, right, like the the Indiana state tax amount is 3.23 percent, right? So it's going to be 3.23 off of the 10,000, right? I'd rather you have that 3.23, uh, Republicans would would rather you not. But, they can't practically gut it to the point where, you are dispersing the significant chunk of the benefit. But it is worth pointing out, Republicans hate you so much that they have gone to the trouble of denying you the ability to to get $323 in tax relief.

0:47:40 Thomas: Right. Yeah, well not, not to give them any ideas, but they couldn't pass something that was like this particular income is a hundred percent tax rate or some bullshit to screw us over. That would be extreme.

0:48:05 Andrew: That would be, I think, a real challenge to say that, you're going to tax at the state level 100% of a returned benefit at a 100%

0:48:16 Thomas: Right? Yeah. Cause then it would be due at that moment, you know, like Like, rather than the payments that you're paying. Yeah, but I mean, I guess, okay, I won't. Never mind.

0:48:18 Andrew: Tax rate. Yeah. Well, that would be look under, you Know, we were long overdue for, you an eminent domain follow-up. We've already done Kilo versus City of New London. But. You you have a right to your property to not have your property seized without fair compensation. And I think there is certainly a regulatory takings argument that says a 100% tax amounts to a regulatory taking of your property. Right? Like, it leaves you nothing.

0:48:56 Thomas: Right, right.

0:48:57 Andrew: Nothing. So

0:48:58 Thomas: I'm always trying to anticipate the next evil thing, Andrew, but it sounds like that's, yeah.

0:49:00 Andrew: "All it's it's good, like I wish you and I had been doing this show with that mindset, uh, in the early 2000s, because, you know, maybe we could have stopped Mitch McConnell from stealing, uh, a Supreme Court seat and 140 appointments to the federal bench, who, uh, I have some ideas for, for how Barack Obama could have filled those by the, the way, I have a solution to that in the event that we lose the Senate, but, uh, I'm going to sneak peek, I've I've

0:49:25 Thomas: Yeah, is this the thing you teased before? Okay, we still haven't done that?

0:49:26 Andrew: Yeah, I have teased it before. I

0:49:29 Thomas: Oh, crap.

0:49:30 Andrew: Have not done it because, uh, we haven't needed to. And so, uh, I like that too.

0:49:33 Thomas: Oh, I like it. It's an axe

0:49:35 Andrew: So, yeah, that's right, break glass in case of emergency, and us losing the Senate would be a real big emergency.

0:49:36 Thomas: Behind glass, you know, that you crack. Yeah. Yes, yes.

0:49:44 Thomas: So Republican states are, effort to make sure that you don't get $323.07 or whatever the heck it was because you got your loans forgiven, given, um, and, seriously, pretty amazing the competency involved in the Democratic effort here, you to make sure ahead of time that this wouldn't be taxable and then to follow through on that and grant, uh, a lot of people some relief and shield that from taxation at the federal level is, it's really cool. It just, it just goes to show that, you know, Democrats can do good things and are fighting for you. And in my opinion, it's far more the case that they're hampered by Republicans and not by, you know, their own corruption or their own ill will or anything like that. But that's my opinion.

0:49:52 Andrew: So, I I endorse that opinion. And sneak peek for what I hope we'll cover in the second half of the Tuesday episode, we won't know until we see just how bad, the, the judge Cannon order is, uh, we I optimistically thought we would have a fourth segment here covering how a Republican judge wants churches, searches, literally to kill people. And that is a case called Braidwood Management versus Becerra, Javier Becerro, Secretary of Health and Human Services. And you probably have seen some coverage of this. This is granting new RFRA exceptions and a terrifying embedded ruling that nobody is talking about on the composition of some of the internal agencies at the Department of Health and Human Services. Republicans are not satisfied with just banning abortion.

0:51:21 Andrew: They are not just coming after contraception, but they are coming after your body, your life, your health. Cannot I realize that sounds Occupy Democrats level hyperbolic. It is not. Be on the lookout for coverage of that case coming on Tuesday's episode.

0:51:40 Thomas: Teaser. Before breaking news, alert, Andrew, Justice Department appeals Judge Cannon's order for a special master.

0:51:47 Andrew: Oh, how about that is prescient.

0:51:49 Thomas: Yeah, so they are doing it. I don't know if we have any details as of yet, but it's reported by, as of right now, I think the Washington Post, that they will appeal the decision. So any reaction To that?

0:52:00 Andrew: Well, I am not surprised. I will check the docket. To me, that suggests that there was no ability to confer. You know, they they met and conferred and they couldn't agree on anything.

0:52:10 Thomas: They couldn't agree on anything. Yeah. Yeah.

0:52:13 Andrew: And so this obviates the need for them to file that joint statement. Hard to pat yourself on the back for an unpublished prediction from an hour ago. Again, if I'm Jim trustee, right, I'm going to sit there and why would I negotiate on anything? Right. My offer is to make myself the special master and I get to tell Trump everything. And, why not? I got a I got to Federalist Society weirdo here who's going to do whatever I want.

0:52:14 Thomas: Yeah.

0:52:40 Thomas: It's all crayon on napkins. Why not, draw as pretty a picture as I want to on a big castle on my napkin and stuff like that. Yeah. Why not?

0:52:41 Andrew: Yep. Yep. There you go. So not

0:52:48 Thomas: More

0:52:48 Andrew: Surprised. Uphill battle. You and I were in favor of it. I remain in favor OFIT. And we we will see.

0:52:55 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:53:01 Thomas: Now it's time for T3BE. That's Thomas takes the bar exam. Each week I fail to answer a question correctly because it's really hard. Except somehow I've gotten like half of them right. My percentage must be slipping, Andrew, right? I mean, it's not been great.

0:53:13 Andrew: You're still over half. It's it's over 52 percent. Um, it's been higher in the past but I know we were we were closing on 60 I

0:53:17 Thomas: Boy, there were times, yeah. Back in my youth, I was closing on 60%. I think the test got harder personally, but that's okay.

0:53:23 Andrew: I this is the last question in a particular source that I have been using. I have bought a brand new book. I I have wondered if some of these questions, like some of the listeners were able to, like, you Google long phrases and maybe cheat their way to the answers. From here on out, for the next, I think, 200 questions, I have a book. By the way, if you're a patron, we we get you the full question text, your patron at any level over patreon.com/law. And and you also get the the answers early, so this will be hack proof.

0:53:27 Thomas: Oh, yeah, geez, yeah."

0:53:57 Andrew: And I don't know, I will be able to tell, like, maybe it'll be much much easier. Maybe it will be much much harder who

0:54:01 Thomas: Someday, I'm going to visit your house, Andrew, and I'm gonna see in the bookshelf three or four books that are like top 200 200 impossible questions to make, not aspiring lawyers quit their plans to go to law school. And I'm going to be like, I knew it. No, it's probably very normal questions. I'm just getting wrong. All

0:54:17 Andrew: This might sound like patting myself on the back, but it's not. I mean, it just got lucky, but when we did the live show and you and you googled like hardest bar exam question, question uh, yeah, yeah, absolutely.

0:54:23 Thomas: I know that was the funniest thing. I, that is, I, everybody got to hear that show, right? I can't remember, but even if you did, yeah. Make sure to come to the next live show, wherever we announced that, uh、, that was a lot of fun. I have more shenanigans planned for future live shows. But you truly, we, look, I don't know if people realize this, Andrew, but like, don't, I we don't coordinate on these things. Like I genuinely, there are some people in podcasts and certain shows who want to make sure everything's scripted and every reaction is going to be controlled in a certain way. I just don't like that. And so I genuinely sprung this on you and Andrew just nails it. Like I Googled like, okay, what's the hardest possible question? It was like, riparian water rights of a property that, and I was like there's no way, and he just nails it, it was the funniest thing, and it's completely organic, completely earned, well done you

0:55:09 Andrew: No, I'm gonna screw up the next one, so anyway, but you're gonna you're gonna nail this. When I feel good about it, Thomas. A man was at his neighbor's house, friend neighborhood gathering. The man noticed that the neighbor had a new garden hose. Upon seeing the garden hose, the man remembered that he needed to water his plants. The man decided to use his neighbor's garden hose while the neighbor was entertaining guests. The man stretched the garden hose to his backyard and began watering the plants. However, yeah, however, the garden nose was stretched too far, broke in half, and could not be repaired.

0:55:17 Thomas: Alright, wow This, so far a very bizarre fact pattern Speaking of riparian Water Rights or whatever, huh Imagine

0:55:50 Andrew: A suit for damages by the neighbor. Will the neighbor recover, cover, yeah, yeah, yeah, a. Yes for the actual damage to the garden hose. B. Yes for the value of the garden host before the neighbor broke it. C. No, because the neighbor did not intend to keep the garden house. Or D. No, because the neighbor did that intend to damage the garden nose.

0:55:54 Thomas: Filing a lawsuit for like a $20 hose or whatever the heck it would be.

0:56:17 Thomas: Huh? What's really throwing me off? This doesn't happen often unless I'm just missing something. See, no, because the neighbor did not intend to keep the garden hose is completely from left field. There's nothing. I'm rereading it. There's something in the fact pattern that I see. It says the man noticed that the neighbor had a new garden hose. I'm trying to, that this makes me think that somewhere he's like using the old one or something, but it.

Okay, the man decided to use the neighbor's garden hose while the neighbor was entertaining guests. The man stretched the garden hose to his backyard, began watering plants. Yeah, that's C is completely out of left field, mean it, I this is very weird. Someone went on someone's property, tried to use something and broke it. That person get damages from the person who broke the thing. I'm not really sure, this is a weird question.

Like, there must be, there must be some weird legal principles that I don't know about, that that are at stake here, because this, I mean, you would think if someone comes to your house, breaks a thing, you think they should owe you money for that thing, right? So will the neighbor recover hose damages

0:57:15 Andrew: Nice.

0:57:15 Thomas: Or will he get hosed? I dunno. A yes for the actual damage to the garden hose. So I guess that's, that's one consideration is like, okay, do you, do You have to pay him for a used garden hose or an or the value of the garden hose before he brought, you know, that's one question. Actual damage to the garden nose. Okay, be yes for the value the garden hose before the neighbor broke it, it. Says it couldn't be repaired. So a suit for damages, you recover yes for the actual damage the garden house versus yes for for the value of the garden hose for the neighbor. That's, yeah, I'm struggling to differentiate that or figure out what that means. So those are my yes answers and I'm strongly leaning toward a yes answer just in principle here. C, no, because the neighbor did not intend to keep the garden host. That, do not know what that is. What, like, I literally cannot find a possible reason for that answer. That is so out of left field, I must be missing something, because I don't think the bar usually does that.

0:57:19 Andrew: Oh,

0:58:09 Thomas: Like usually there's something that it's trying to trick you on D, no, because the neighbor did not intend to damage garden hose. All. So after a bit of confusion, it seems as though the question might actually say moops, like there might be a, this is a moops, because C and D only makes sense if you replace neighbor with man. It's got to be no, because the the man did not intend to keep the garden hose, which would make sense. He was just borrowing, using it to water. And that at least makes sense as something like, cause otherwise it just made absolutely no sense. So Andrew, in a rare, yeah.

0:58:17 Andrew: Yeah. This is a moops. I am I am audibling in here to tell you that should say man to preserve the integrity of the C and D answers. Because yes, otherwise it makes no sense, yeah.

0:58:50 Thomas: Yeah. Cause otherwise that's just that it makes no sense, so we'll reread them as no, because the man did not intend to keep the garden. So that's saying like he was just using it, you know, and then, and it broke, and for some reason that means he doesn't know damages. I'm not, I think if he was just using it in a normal way, maybe like if he's just using it in the totally innocent way, and the whatever the item was just broke because it was old or big, whatever, but it's a brand new hose and it was stretched too far, broken half, so I think, I think that's what C's going for, and I'm gonna say I'm a rule out C, do you know, because the neighbor, the man, DB, no, because the man did not intend to damage the garden hose. Um, I think similar answer there. But the fact that it's a brand new hose and the man stretched it so far, which, by the way, is impossible. This is not possible to broken half it. What is this?

0:58:52 Andrew: Yeah,

0:59:38 Thomas: The Hulk? This is weird. So, okay. But the, does the intent matter? The fact that you go over to your neighbor's house, you use something. I mean, it's without permission. I feel like that would be component of it. I think C and D are both. No, I, I. This is going to be real trick question if it's C or D. So I'm going to stick with yes answers because this is crazy. I mean, you go, you go without asking. You use a brand new hose.

You rip it in half, which is impossible to do because somehow you're the Hulk. You got to owe money for that. Come on. So a yes for the actual damage to the garden hose I don't know what that means or b yes for the value of the garden house before the neighbor broke it I I really don't know what the what the difference would be there I mean I guess the the difference being like okay can I buy you a used hose to replace it rather than the value of the new hose and I guess there's some argument there like if I broke your car would I have to pay you

1:00:29 Thomas: What you paid before you took it off the lot, or like what you could get for it now. And I think the only, you know, actually I'm pretty sure the way that works is the only way you could really do that in a fair manner is to pay what you could get for it now. Oh, but that's still the value of the garden hose before the neighbor broke it. Oh, okay, that doesn't even mean new. What the hell is the difference between A and B? All right, Andrew, should A and B read yes for the man is the damage to the garden man, and yes, I can't make sense of any of I. These, think I'm going to go with B over A. Actual damage, I think actual damage is a legal term. And maybe they're trying to throw me off by saying like, oh, I recognize actual damage from something, which maybe, and maybe that is the right answer. But I think the straightforward value of garden hose before the neighbor broke it seems right to me.

1:01:17 Thomas: So B over a. This was one of the weirdest, most confusing questions. But I'm doing B over. B over Final answer.

1:01:22 Andrew: Right, and if you want to play along with Thomas, you know how to do that. Just share out this episode on social media. Include the hashtag T3BE. Include your guests, your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:01:35 Clip: And thank you, Let's go!

1:01:37 Thomas: Now it's time to thank our new patrons at patreon.com/law. Enjoying the goodies, the Q&A thread, the questions, the voting on the questions, the early episodes, the ad-free episodes, so many perks. And and Andrew, why don't you start us off.

1:01:51 Andrew: Thank you to Alex Courtney, Matt Lambros, Hans Eugene, Jon Alan, Jason Coleman, I wish someone would Knowledge Fight Joe Rogan, yeah, WaifuNest, Jim Ferguson, Chris Becker, Gordon Byrnes, William Grieb, "Hi, I'm Donald Trump and I stole docs from the White House so I could cosplay at being president at Mar-a-Lago, it was bigly good," Karen Trembath, Commander Crisp vs the soggies, oh, that is outstanding, Zack Sampson, Juliana Wilson, Melissa Smith, Lezlie Nope, Thomas, take it away. I

1:02:26 Thomas: Great name, I love Parks and Rec, have you watched Parks and Rec? Okay. It's maybe my favorite show of all time in terms of like comedy sitcom, just all around, it's very good, like it is, yeah yeah no, I hear you you might not like it, but it's a very, very, very good show, and it has this delightful optimism about good people in trying in to do good in government that I think Leslie Knope is a great character, I love her so much, it's it's a good show. All, anyway, Rawls's OG Position.

1:02:30 Andrew: Have not, that's on the list. Oh wow I I will not list the like very popular comedic shows that I have attempted to watch and like you know signed out of streaming services all right is

1:03:04 Thomas: Saul T. Wang. Oh, another salty one in two in a row. Salty Swabian. Sex and Gender are different things. True fact. Ben McNabb. Harry Nethery. Uh, not sure how to read this one. indtastBrugernavn. It's like all one word. Yeah, I'm not sure. Sorry. Jeff Everett, Kat Wagner, Kim Pollard, Pandemic21, Anonymous Patron, Craig D, DramaLlama Vice City and Assorted Austin CivAlum, Pilar Marien, Dwarren333, Llyra de la Mere, Isaac Prichett, and Corey B. Thank you so much, new patrons. We love you. Hope you enjoy the perks. Thanks for the support. And that's our show. Can't wait for the Q&A. Of course, another reminder, come join us on YouTube. Find the links on the social media. If not, we'll see you on Rapid Response Tuesday or Sunday night for patrons. See you then.

1:03:13 Andrew: Damn right.

1:04:01 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.

1:04:34 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.

1:05:10 Andrew: Will happily do what Andrew was wrong about being wrong. So, yeah.

1:05:14 Thomas: Yeah. You, you actually were, Andrew was wrong. I'm sorry. I was right in that. I wasn't wrong. I'll never do it again. I'll always do it. Again. I don't know.

1:05:19 Andrew: I was wrong. It turns out I was prescient. Okay. So,

1:05:27 Thomas: Got