OA635: Trump Gets His Special Master, Immediately Regrets It

Transcript

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

0:01:17 Thomas: And welcome to Opening Arguments. This is episode 635. I'm Thomas. Sadly, my vacation is over. Although not really sadly, because god damn did I miss those kids. But someone who is still living it up, Andrew Torres. How are you doing? It, yeah.

0:01:27 Andrew: Still Living the dream, I mean, you know, my son is not at home no matter where I am, might as well not be at home, yeah,

0:01:40 Thomas: Yeah, you've earned it. You're an empty nester, so you've earned it. And from the pictures, I feel like you are really living up. Beautiful pictures.

0:01:48 Andrew: I am Here in a converted 14th century castle in the middle of Tuscany, for another day. I've been doing wine tasting. It's um It's delightful.

0:01:54 Thomas: Can I just say I don't know if the listeners will already know this, but as an audio, as the audio producer, Andrew says, "I'm in a converted 14th century castle," and my brain just explodes. I'm like, "Oh my God, that's the way I," they didn't, here's the thing about the medieval times. They didn't record a lot of podcasts during that time. So the audio, the acoustics in castles, not generally, you know, good. Uh, but we'll make it work one way or the other.

0:02:14 Andrew: Oh. All right. Oh.

0:02:23 Thomas: We did a tour of Edinburgh castle and, oh, that was so brilliant. It was a lot fun, but I gotta say, miss the kids. And I know I've mentioned before that, like I, for some reason, Arlo is is just a morning dude. He just is. It's crazy. So we get back get, last night and we are adjusted, fully adjusted right on time to go home and change back to the time zone. So, You. So we're fully four, eight hours ahead, body clock, but I'm thinking, all right, I'm going to bed super early. We went to bed when the kids went to bedtime. And I was like, I'll get a little extra kid time.

'Cause I'm so, you know, my jet lag, I's going to be like waking up in the middle of the night. Sure enough, I wake up at four, and Arlo, man, he does not disappoint. That, that guy wakes up at 5 a.m. That's his regular wake up, 5 a.m., Andrew Torres, to the point where even Phoebe's not even waking up anymore. She used to wake up when he wakes up, and I think she's finally learned, like, her body has figured out not to wake itself up because she just can't do it. Like, no one in this house wakes up as early as this little dude. But the, it, one time it's great for me is when I, my body clock is eight hours off because I, we

0:02:28 Andrew: Uh-huh. Hmm. Wow. Right, right.

0:03:28 Thomas: Got up and I, you know, we put on like, you know, Winnie the Pooh or something for him. And I got on the couch and was just passing kind out in and out of sleep. And Arlo was just using me as a jungle gym. And I loved it. It was the best. I miss my kids so much. I got cuddles this and jungle gym stuff. So I'm happy.

0:03:40 Andrew: Oh, I miss that so much. It would be very, very weird if my 19-year-old son came home and used me as a jungle gym. But, you know, he could, and I would still be there for that. So, yeah, no, it'd be, yeah.

0:03:51 Thomas: Yeah. Yeah, you probably just wouldn't like tell it on a podcast like I would, you know, keep that one to yourself. No, I'd be like Tom Brady. Yeah for more wholesome dad stories. Check out Dear Old Dads.

0:04:09 Andrew: Smooth.

0:04:09 Thomas: That acts. let'S get to to our completely full, you know, Andrew did go to your head the other week when you broke the Guinness world record for, for most bullet points.

0:04:10 Andrew: Plug. I Did We're gonna do it again, but we've got to stay focused.

0:04:23 Thomas: Okay. We'll stay for apology. I'll cut all that. No, I won't cut it. We're, we'll fast forward through all that and let's get to what I'm seeing is 11 bullet points. We'll see if this is going to happen. That is, wow. All right, let's do it.

0:04:35 Clip: YOU BETRAYED THE LAW!

0:04:36 Thomas: So a little follow-up, Andrew, I'd mentioned, we'd kind of mentioned last recording about the DeSantis stuff, a lot of people are wondering, is this human just trafficking? Like, isthis against the law? If so, how will will anything come of it? And you had mentioned that it was kind of hard to tell at that point. Is there any update there?

0:04:53 Andrew: Is, and um, unfortunately what I want to do is equip our listeners to sort of with the worst of the right wing talking points, but, but Let me answer the top line question for you. Is it clearly illegal for a monster of a governor to lure human beings, federal fellow human beings, under false pretenses onto a plane and then dump them in a foreign state and leave the, it's not clearly illegal. So if you're asking, should we change our laws, I, I never thought we would need to do this, uh, But yeah.

0:05:03 Thomas: Right.

0:05:26 Thomas: Well, that's the problem. I mean, I almost don't blame the legal system for this one. Who in the world Would be like, should we write a law that a governor can't abduct, abduct people? You're like, I'd, what, oh.

0:05:27 Andrew: Yeah. Yeah. You I guess I want to talk about a couple of related points here, right, because, uh, there may be, be some good news, Massachusetts, right? Has requested that the DOJ open a probe into DeSantis's efforts, and we should be encouraging them to think outside the box. There will be civil lawsuits. Idea that nothing might happen, I think there is some reason to believe that that maybe something will happen, but in terms of, you know, could we slap handcuffs on DeSantis tomorrow? Boy, I sure wish we could.

0:05:55 Thomas: Yeah. Yeah.

0:06:09 Thomas: Could We slap civil handcuffs?

0:06:11 Andrew: Let's See. Wanted to discuss a couple of the just worst right-wing talking points. And, right? The first is, and we talked about this a little bit last week, the notion of sanctuary cities, sanctuary states, right, we talked about how sanctuary cities are predicated on the idea that we will not voluntarily share cooperation and information with local police departments. We will not let ICE commandeer local police department. I have seen subsequently folks on the right wing say, well, you know, Massachusetts effectively declared itself a sanctuary state. Now, that's not a thing. That's not even a fake

0:06:11 Thomas: Can Wow.

0:06:46 Andrew: Thing. So I dug through to figure out what the hell they were talking about. And basically, the argument is that there was a 2017 Supreme Judicial Court decision, right, Massachusetts Supreme Court, a case called Lund v. Commonwealth. It is essentially identical to a U.S. Supreme Court case that we're going to discuss in a second. And in that case, the question was whether Massachusetts court officers have the authority to arrest someone at the request of federal immigration authorities pursuant to a civil immigration detainer, right? So in other words, if ICE comes in and says, hey, we want you to arrest that guy, under Massachusetts law, can you arrest that guy just because they say so? And, as it turns out, under the Massachusetts state constitution and Massachusetts law, no, you can't.

0:07:35 Andrew: So that was enough for some right-wing mouthpieces to label Massachusetts as a sanctuary state. The only problem with that is your own fairly conservative Supreme Court, in a case called Arizona versus United States from 2012, right? So not, we're exactly talking the heyday of, you know, liberal courts here. We're talking the Roberts Court. So, right? The Roberts, Herbert's court, in 2012, said, quote, "As a general rule, it is not a crime for a removable alien to remain present in the United States." Removable alien is the term that the Supreme Court uses there for, you know, what your right-wing Uncle Frank might call an illegal, right? And in that case, what happened was Arizona passed a law that provided that a state officer, quote, "without a, a warrant, may arrest any person if the officer has probable cause to believe that that person has committed any public offense that makes him removable from the United States."

0:08:34 Andrew: The question was, was that constitutional? The Roberts court struck that down, unconstitutional, said, look, that encroaches upon federal immigration policy. And if the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a notice to appear. That form does not authorize an arrest. Instead, it gives an alien information about the proceedings, including the time and date of the removal hearing. If the alien fails to appear, then an in absentia order may then direct removal, right? So, I do not, we have been through this, our immigration laws are a mess. I do not mean to suggest that, uh, aliens receive a tremendous amount of due process in this country. It's a shameful situation, but they do get some, and it is, uh, been a clear holding at the Supreme Court level for a decade that just saying, oh well, they're illegal, round them up and throw them out, is absolutely not. It is neither the policy of this country, nor is it permissible under our federal immigration scheme.

0:09:39 Thomas: Really? That's, I'm surprised Trump didn't ruin that somehow.

0:09:39 Andrew: Yeah. Yeah, And why might you not remove, for example, long-standing policy, if someone has overstayed their visa, but they are cooperating with a criminal investigation, they are completing military service, they are a veteran, they're a student. These are all reasons why the federal government might say, yeah, you have overstayed your visa, but we're not going to remove you anyway.

0:10:03 Thomas: Like you married the president or you're helping someone steal an election, and Stuff like that, you know.

0:10:07 Andrew: Stuff Like that, the analogy I always use is, driving you without a license, right? There's no question, right, if you don't have a driver's license, it's illegal for you to get in the car and drive without that license. But, you know, the question is, is, is that the only relevant piece of information? And I think, you, among most reasonable folks, we would say, no, I'd like to know a little bit more information. How does this interface with human trafficking laws? Human trafficking laws are governed by 18 U.S.C. Chapter 77. There are a bunch of different laws that overlap. And they follow, at the request of experts in the field, they were overhauled in 2000, what is called the AMP model for action, means, and purpose. And two-thirds of that very clearly apply to DeSantis. So action, whenever you induce, recruit, harbor, transport, provide, or obtain, okay, right? You have transported folks here. Means, you use force, fraud, or coercion. There Well, was obviously fraud here. The third prong is the the purpose prong, and that is to compel the victim to provide labor services or commercial sex acts.

0:10:35 Thomas: Mm-hmm.

0:11:16 Thomas: So Like just being a fascist isn't enlisted as the reason? Oh dang.

0:11:20 Andrew: Isn't, so right? I have read lawyers who are attempting to argue that, the state of Florida is trying to benefit economically. Can I tell you in going through the cases, the right, focus has not been on the benefit conferred to the trafficker, you right? Don't measure the harm by the amount of money that the traffiker is making from their illegal acts. You measure it by the compulsion on their victim to make them, you provide labor services or sex acts. So I certainly certainly would encourage prosecutors to see if we could fit, but, you know, it's not an obvious fit, and who would have thought we would have needed a law to protect against something like this?

0:11:20 Thomas: Uh Kidding, uh, all right, in, in happier news, this Is the only way I can think to cheer Us up. You've completed All three bullets points kind of at once. I, well, we'll talk to the records people and and see if it counts, but you, you knocked out three. I mean, I think you could abuse that and just make a bullet point for like every sentence you say. Yeah, no, we'll see. We'll see what the judges say. That being said, let's get to other happier news, which is Trump being in trouble and some yodeling.

0:12:06 Andrew: Much, much happier.

0:12:29 Clip: Treason is treason.

0:12:34 Andrew: There's a lot of yodeling, and I want to start this off with an unequivocal Andrew was wrong, okay? And here goes. I think I am still skittish and nervous about the worst thing I was ever wrong about, which is, of course, Attorney General Bill Barr. That being said, not only is there absolutely no indication that Judge Raymond Deary from New York is in the tank for Trump. I said, you know, I was skeptical on the basis of no evidence, but, felt like Trump would know a guy who was in New York for the 40 years that he was in Newark, right? Indications are very much to the opposite, right,

0:13:12 Thomas: Refresh those of us who, I don't know, might've been like on vacation for a little bit. Is this the person who ended up being special master?

0:13:19 Andrew: Yes. So Trump proposed two potential special masters, One was just a guy who happened to be married to a Trump appointee on the 11th Circuit, but was in private. I mean, it was more ridiculous than proposing me as the special master, the other was this judge, Raymond Deary from New York, who was, you a Republican appointee, but gathered kind of unanimous praise from that section of leaning intellectual lawyers who like to say, hey, this is somebody who, you know, has an unblemished record. And, you and I expressed the skepticism of if Trump wants him, I don't.

0:14:01 Thomas: Yeah.

0:14:02 Andrew: And I'm just completely I'm wrong now. So we knew right. Judge Cannon, when faced with two qualified candidates offered by the Department of Justice, including one who was way more conservative than I would have liked, you of course, went with the Trump choice. The Uh, question was did Trump outmaneuver the department of justice, And right? I think itsworth kind of keeping this in back of the head. Trump Like, was so horrible for so long and it feels like, you he outsmarted us and got away with anything. I mean, he's still an idiot, right. He's still in idiot who is surrounded by idiots. And think that's what happened here. I think they thought they were going to get, you somebody who was going to go along with the program. And the day after our show, of the day last Friday that we got the first management order issued by Judge Deary, by the special master. And Trump is not happy. And we're going to go through that. First, I kind of want to give a little bit. So after, know, the mea culpa, I was wrong.

0:14:31 Thomas: Oh yeah.

0:14:55 Thomas: I don'T I don't think you' wrong. I think you're sitting there being like, there must be a catch. Right? I mean, because wasn' it like, why in the world they'

0:15:08 Andrew: And I think the catch is that that Trump and his inner circle of idiots convinced themselves that this guy was somebody they could get the government to agree to. And the government did agree to it. They expected him to be in the tank and he just isn't.

0:15:09 Thomas: Dumb?

0:15:20 Thomas: Yeah. I think your' re right to be suspicious, and absolving you of a full Andrew' s wrong, and I have the power to do that.

0:15:28 Andrew: Appreciate that.

0:15:29 Thomas: Next bullet point.

0:15:30 Andrew: So where are we now?

0:15:31 Thomas: Some of us are in freaking Tuscany drinking wine.

0:15:33 Andrew: Not petitioned SCOTUS for injunctive relief and does not appear inclined to do so. And, you know, at this late date, the odds that the Supreme Court would intervene and stop the 11th Circuit and overturn the 11th Circuit's partial stay, just about zero at this point. So won on that. The DOJ won on the that. Investigation is moving full speed ahead at the same time as the ODNI review of those 103 documents bearing classification markings, right, from classified all the way up to top secret. Also means that the DOJ could issue additional subpoenas, additional search warrants, even indict Trump or or anyone else, right, in the next few days, weeks, months. Um, that could all happen.

Um, it almost certainly will not happen with respect to Donald Trump, and we've talked about this before, not just because of the bar memo, but because of the long-standing policy at the DOJ of attempting not to appear that they are using department resources to influence an election. Wanted to pull the two potentially relevant sections from what is now called the Justice Manual, previously called the United States Attorney's Manual, the last time we talked about this in 2016, we had a couple of reasons for wanting to do that with Jim Comey wandering around and deciding to throw press conferences every couple of weeks. So, potential provisions. One is section 9-85-300, which is non-interference in elections when conducting federal criminal investigations involving ballot fraud.

0:17:16 Andrew: That's not the case here? This is not a ballot fraud case. Ballot fraud case is a crime involving the process by which voters are registered, votes are cast, or votes are tabulated. Okay, of the cases against Trump fall into that category. But when you read under the reason to abstain from ballot fraud cases, the rationale there says, the department should not engage in overt criminal investigative measures in matters involving alleged ballot fraud until the election in question has been concluded, its results certified, and all recounts and election contests concluded. Doing otherwise runs the risk of chilling legitimate voting and campaign activities and interjecting the investigation itself into ongoing campaigns and the adjudication of any ensuing election contest.

0:18:04 Andrew: They then caveat that by noting it may, however, often be appropriate, in consultation with the public integrity section, to share information and allegations involving such matters with state and local authorities where an immediate need for overt measures may may exist. I, so, view that as giving some pretty substantial guidance of saying, hey, we do not want a DOJ investigation and potential indictment to interfere with an election.

0:18:30 Thomas: Right, but isn't there some pretty tight caveating there of or qualifying of like, it's ballot a thingy, and it's, you know, that because strikes me as a bit different than, well, this guy's just a murder, or, like, we're, whatever a federal murder, and or is there no difference there, can

0:18:35 Andrew: Yeah, that's, no, no. I think that's right. Look, And the reason I read the end of that that caveat is, let me offer something that I think would take my default position and turn it on its head. So my default positioning is, I don't expect that the DOJ will indict Donald Trump until early 2023. I think they will let this election cycle go. I think they build the case. I think they'll, out of an abundance of caution, not indict Donald Trump during the midterm term elections for principles the that I'm about to describe.

0:19:15 Thomas: We just note, that that is so extremely bending over backwards for a fascist. I mean, he's not in in election, he's not in an election

0:19:20 Andrew: Yes, that's what they've done everything. Disagree. However, suppose the ODNI determines that there remain classified materials that are still not recovered. They don't know where they are, and they have reason to to believe that some of those prior materials have been distributed to our geostrategic enemies. I don't any proof that Donald Trump has sold nuclear secrets to the Saudis, sure do.

0:19:35 Thomas: Totally could be right well we have a bunch of open folders labeled top secret and we don't know where the crap is right yes

0:19:55 Andrew: And in that situation, would that constitute an immediate need for an overt measure? Yeah, to make sure a lunatic doesn't sell national security secrets to our geo-strategic entities? Absolutely. Absolutely. So I don't want to say the that possibility is zero. I kind of hope that the possibility is zero, Like, I right? Really do not want to live in a world in which Donald Trump has sold, you know, the names of our intelligence officers to, the Saudis That's or a terrifying aspect. So, just very quickly, 985.500, more direct guidance. These are actions that may have an impact on an election. And it says, federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements for the purpose of affecting any election.

0:20:42 Andrew: Such a purpose is inconsistent with the department's mission, the principles of federal prosecution. Any action likely to raise an issue or the perception of an issue under this provision requires consultation with the public integrity section, and such action shall not be taken if the public Integrity Section advises that further consultation is required with the Deputy Attorney General or Attorney General, and then, without you their sign-up. So again, not an absolute prohibition. You need the Attorney General, Merrick Garland, to say, I personally authorize this arrest, I personally authorized this action, in order to proceed in a situation in which it may raise the perception of an issue involving an election. So again, it means bending over her backwards, it does not mean no.

0:21:29 Thomas: Yeah, it's frustrating how much we bend over backwards for criminals who aren't even in elections, but there

0:21:34 Andrew: I agree, I but can do is sort of tell you, and again, I'm a cheerleader for the rule of law, so I ordinarily the rule's probably a pretty good one, right?

0:21:43 Thomas: Guess I mean rule of law also involves, um, stopping people from selling state secrets and hiding, writing, you, secret documents at their golf club, right? That's, that's rule of law too, right?

0:21:54 Andrew: Argument there, Tom.

0:21:56 Thomas: I love that. I hope it's not even a bullet point. I hope it didn't even make it to bullet point status, to ask you whether or not you can make things not top secret by thinking about it real hard. Like, like Trump did. Yeah. It's not even worth it. Let me just, let me just. Oh yeah. It'll be my bullet point, because obviously this Hannity interview where he says he thought thought about it, what I love and what I think that only, you really well-informed people slash OA listeners are aware of is how that doesn't even effing matter. Like, no part of what he's been charged with, or is in the document, you know, charges, or is the uh justification for the the whole thing, is, uh, as you've you've taught us, they worked around this anyway, and he's still going, giving interviews where he's like, well, you see, I use psychic powers to declassify everything. Thing wouldn't even matter if he could

0:22:07 Andrew: Not a bullet point, yeah.

0:22:44 Thomas: See the if records people can count that toward your bullet point yeah

0:22:48 Andrew: So now I want to build up to, because I want to talk about the case management order. These are the things that Special Master Deary ordered both the government and Donald Trump to do, and spoiler alert, Donald Trump doesn't want to do any of them. The question is, did Trump's hand-picked special master, the guy he put forward and they agreed to, did he in some way exceed his authority by making Trump specify the bare minimum that we're about to talk about here?

And the way to think about this, I think arguments listeners, I hope will appreciate this. And that the authority of a special master in a case flows from the judge. Think about it like the way you would think about an administrative agency, Like you get clear guidance from Congress that says, hey, I want you to do X, Y, and Z, and you have the authority of A, B, and C. And then the question is, right, when the agency does something that Congress doesn't like, can you go back and say, oh, well, I didn't give you the authority to do that, That's the right. Way you want to characterize and think about Trump's arguments that Special Master Deary already, his very in first case management order, has overstepped his authority. And

0:23:36 Thomas: I'm what is the thing he would have been even overstepping wit? Like, what did he say?

0:24:05 Andrew: The way that happens. So this is the procedural history. On September 15th, which we discussed on the show, Judge Cannon entered an order that appointed Judge Deary as the special master. That's the thing that got appealed up to the 11th Circuit. Okay. That order, we did not go through line by line. It's 11 pages long, but we described how it was kind of bananas, It right? Required, among other things, that the special master immediately turn over the documents bearing classification markings to Trump's lawyers, including Christina above who's probably a Russian asset, Like she's a former, you OAN reporter. I think odds are good that she's Russian asset. So that order is the source of Judge Deary's powers as a special master, okay? And that is ECF document 91. It's referred to in the pleadings as the appointment order. We're going to come back and talk about, it but says among other things, paragraph right? Two, the specific duties of the special master are as follows, and will include all powers necessary to carry out these duties.

A, verify that the property inventory is correct. B, conduct a privilege review of the seized materials and make recommendations to the court as to any privilege disputes between the parties. C, identify personal items, documents, and presidential records and make accommodations to the courts. And D, evaluate claims for the the return of property under Rule 41G of the Federal Rules of Criminal Procedure, even though, of course, this isn't a criminal case, right?

0:24:18 Thomas: Right right wow oh

0:25:35 Andrew: That, and we're going to come back to it, was what Judge Cannon said, I'm appointing Judge Deary, and I'm going to give him some of my powers to do those four things. Remember, the merits of this order in its entirety are still pending before the 11th Circuit, right?

0:25:52 Thomas: Right I was gonna say, because I thought I, Justice eventually, uh, was victorious in this, or not yet okay

0:25:57 Andrew: Yep. So here's what they did. They were victorious on staying the effect of that order with respect to the 103 documents that bear confidentiality markings of some kind, They are not. So from a practical perspective, the appeal on the merits is still pending and will probably wind up being moot, because right, they're going along with it. We've got time to fully brief it up and everything. But if Judge Deary behaves sort of in a reasonable way, and if Judge Cannon doesn't do anything else crazy, then probably both parties will wind up ultimately dismissing the merits of that appeal as moot.

0:26:39 Thomas: Will be like, this didn't matter anyway because it was nonsense, so right

0:26:42 Andrew: Because it's not It's not interfering with our substantive. They have all the full rights to continue their investigation even even with the special master scrutinizing the 11,000 documents that special master is going to look over. But notice that they do have that 11th Circuit appeal in their back pocket in the event that either the specialmaster, which seems unlikely now, or Judge Cannon, which seems not unlikely, go off the rails again? You could go back to the 11th Circuit and say, okay, hit another roadblock. We need more injunctive relief because the judge is continuing to order something ridiculous. And we have reserved the right to brief the question that says there's no jurisdiction here, right, that this whole thing is nonsense. It's not even in a cognizable civil action, which it isn't.

0:26:45 Thomas: Yeah

0:27:31 Andrew: Again, there's nothing to stop the 11th Circuit from changing its mind and ruling for Trump at that time. It could rule differently on jurisdiction on the merits. Remember, when you grant relief, you're not ruling as a matter of law that there's no jurisdiction. You're saying, if I were to rule, likelihood of success on the the merits. You're making a prediction about how you might rule in the future. That being said, the 11th Circuit wrote a 20-plus page opinion that said, courts don't exercise anomalous jurisdiction where there's no callous disregard for a plaintiff's constitutional rights. So what even are we doing here? And that does not depend on the nature of the documents, that applies to the entirety of the jurisdiction, whether it is those 103 documents with classified markings or whether it's the full set of 11,000.

0:28:21 Thomas: So and but why doesn't that carry the day on all of it

0:28:24 Andrew: That's has not... The only relief that was requested by the DOJ was the narrow grounds of preventing Judge Cannon's order with respect to the 103 documents that bear classification markings. That's all they asked for, and they got it. And the 11th Circuit said very clearly, that's you asked for. So that's what we're saying right now.

0:28:38 Thomas: Okay, okay but you're saying they they still have off the rails insurance, basically is like they could go back what

0:28:46 Andrew: Okay. That's exactly the way I would think about it. Now, look, you still have two Trump appointees on the panel. You don't want to press your luck. But I think that Judge if – I've seen a lot of folks say, well, Judge Cannon might come in and dismiss the special master. And I think if Judge Cannon oversteps, appoint a new one, right? Go back and get Paul Huck.

0:29:06 Thomas: Would that do see yeah, go

0:29:12 Andrew: Yeah, the

0:29:12 Thomas: Get it, yeah sorry, I wasn't thinking evil and incompetent, I wasn't thinking howler monkey judge enough. Yeah, I see what you're saying. Wow.

0:29:15 Andrew: Yep. Yeah. Think Judge Cannon knows, right, there is this imminent kind of, you know, sort of Damocles hanging over her head if she tries interfere to anymore. More. So I'm going to make a, and we're going to unpack this, but is my bold prediction. I think within the next two weeks that Trump is likely to just drop this lawsuit in its entirety.

0:29:40 Andrew: Yeah. And I'll tell you why when we get to that bullet point. That could come as early as next Wednesday, October 5th.

0:29:46 Thomas: The bullet point, no I'm just kidding

0:29:48 Andrew: I mean, dropping, walking away, going, I didn't want a special master anyway.

0:29:52 Thomas: Wow I'm taking my special measure and going home I

0:29:57 Andrew: Yep. Now, I think the most likely outcome is still that the parties just play along. The special master does his job. You know, Trump maybe does or doesn't pay for it, you

0:30:07 Thomas: Know I get on you for this a lot, you are saying Trump, but I mean, what are the odds he has any effing idea what's really happening? Isn't it just his terrible attorneys?

0:30:15 Andrew: Think it is, think, but I remember that some of his attorneys are terrible. Some of them are out of their depth, right? Some are cashing a check, but some are, I think... So, for example, Jim Trustee has done a lot of these cases. And one of the things that we said when he initially filed was that, you know, there was an element of being stupid like a fox in front of Judge Cannon? That by filing something so incompetent, so deranged, that that they did not file supporting affidavits, right, ordinarily, right, if you're not in front a hack, that gets you dismissed. If you are in front of a hack, they treat attorney argument as if it were evidence, and you don't have to sign an affidavit that could potentially come back and hurt you when you are under criminal investigation. That specific issue is something that is now in jeopardy in light of

0:30:23 Thomas: A check

0:31:11 Andrew: Special Master Deary's order. We're going to get to that. Actually, it is the very next bullet point. So that's in the background. After the partial stay was granted by the 11th Circuit, Judge Cannon modified her order and excluded the reference to classified materials, did some other stuff. It's not particularly important. If you have my show notes, you'll get a chance to look at all of that. But we're going to move over in the interest of actually completing our discussion. So September 23rd, one week ago, Judge Deary issued his first case management order. This should not have been controversial. But of course, it is because Donald Trump is not playing by the rules. The case management order did four things. The first thing it did was require verification of the detailed property inventory, which was document number 39-1.

0:31:16 Thomas: Oh

0:32:02 Andrew: We have uploaded that multiple times, including most recently, it was one of the exhibits to the motion to stay in the 11th Circuit. That's the listing of the 33 boxes that the DOJ carted out of Mar-a-Lago, listed, right, detailed breakdowns of, this box contains 78 classified documents and two empty folders that were marked classified and 59 pictures and a ham sandwich and some passports and stuff like that. That response was due on Monday from the DOJ, it's now in, and I have reviewed it, and the DOJ describes this as, this resulted in some minor revisions to our inventory, noted, uh, correctly, that the previous inventory was something they had to complete in one day because Judge, yeah, because Judge Cannon, remember, she, uh, granted the relief over the the weekend, even before the DOJ had been served. I mean, it was just ridiculous. So they had to put all this stuff together in one day.

0:32:47 Thomas: Wow a lot of treason to have to, like, put into an excel spreadsheet perfectly in one day

0:33:03 Andrew: Was. And basically, they revised two different categories of documents. The first category are described as magazines slash newspapers slash press articles, and other printed media dated between X and Y date, okay? The second are U.S. government documents slash photographs without classification markings. Now, that could be anything, know, right? That Could be internal memoranda that just were never marked classified, right, that would be planning documents related to 1.6, highly, highly relevant to criminal all the way to, you just random photographs, here's mean, remember, we're dealing with a narcissist here, so Yes, Yeah, so I want to tell you, all of these are unbelievably minor classifications. And basically what they are is increasing the number of documents by a handful. And the reason that that happens is if you have seven things in a row that were all kind of stored together, they look like maybe they were folded over or stapled, but the staple's been removed, you might think of that as one document, and then as you're sort of going through it, you're like, oh no, this was a bunch of doc, you know.

0:33:41 Thomas: Cherished photographs of his children in which he, no, I guess it's definitely not that it's probably photographs of him yeah right Right.

0:34:25 Andrew: These were five documents that

0:34:26 Thomas: So was that all that happened was they just added the number or deep

0:34:28 Andrew: It it really is, and and again, remember, done in one day. So for example, in box 18, they increased from 1571 to 1578, an increase of seven, but category of U.S. government, government documents, photographs without classification markings,

0:34:42 Thomas: State conspiracy me, those six extra documents, yeah, this is nothing. But they're gonna obviously make as much out of this as they can.

0:34:52 Andrew: Yeah. So, course, they are. So

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0:38:54 Andrew: So in about half the boxes, there are minor corrections. And when I say minor corrections, I mean two, three, seven out of 1,500, none as much as 10, none over 10. and the one that was 10 was reduced to 52 from 62, and I suspect that that was probably a typo, Like There's right? They one that looks, weird is not even the right word. It's box 33. Box 33 initially had, among the other stuff in there, two empty folders with classified banners. I suspect que that was a bad thing. I suspect no longer on the new affidavit. So as you might imagine, Trump's lawyers have already said, like, well, see, their second review meant that they said that they had these folders and they didn't have these. Again, as somebody who has done large scale litigation, and by the way, we found out that the total volume of pages seized, 200,000 pages.

0:39:04 Thomas: Yeah wow

0:39:53 Andrew: Okay. Yeah. 11,000 documents, documents 200,000 pages. It's a lot. And so all of this is administrative, again.

0:39:55 Thomas: That's that's a lot but Andrew if they don't perfectly identify 200,000 documents exactly, perfectly? It's a deep state conspiracy and Trump is free, free to go, right? And is that how the law works? Well

0:40:04 Andrew: Yeah. That's what they're going to try and spin it as. But I, you have gone through and done the comparisons, and to me, typo is the most parsimonious explanation, but

0:40:22 Thomas: And it's not even. Is it even consequential?

0:40:25 Andrew: No, it isn't. So the government did that. And again, this is the most important thing to remember, that what Trump wanted to do was throw up a bunch of ridiculous requests. It is never the case in which somebody who is the subject of a search warrant gets to go to the government and go, I want you to itemize item by item everything that you took as right. Yeah, seriously.

0:40:45 Thomas: All my drugs. You had this listed as two heroines. It was actually three heroines stapled together. Ipso fatso, I am free.

0:40:50 Andrew: Yeah. Right. Exactly. That never, ever happened. Nevertheless, government did that, filed an affidavit, you got one know, of its special agents to swear under penalty of perjury that the following itemization is true and correct. Deary's interim report just says that this list, quote, differs in some respects from the information in the government's previously filed detailed property inventory, which is, neutral, right? Doesn't say minor differences, doesn't say major differences, it just says difference. You So can draw no inference from that.

That's the first thing the case management order said we want to do. We want to have the government confirm all the stuff that was taken, because that's what Judge Cannon ordered us to do, even though that makes no sense. And the government's done that. Good. The second thing the case managements order says to do is okay, so now Donald Trump, you have to actually say stuff under oath about whether that's all the stuff that was taken or not. You can't just imply it. You can't just have attorney argument. It So says no later than September 30th, and this has now been moved to October 7th, that's right? Next week, right? Plaintiff shall submit a declaration or affidavit that includes each of the following factual matter. So plaintiff Donald Trump shall submit an affidavit that includes, A, a list of any specific items set forth in that inventory that plaintiff asserts were not seized from the premises.

0:41:46 Thomas: Yeah?

0:42:18 Thomas: Oh, like we're planted.

0:42:19 Andrew: Yep, a B, List A of any specific item in the detailed inventory that the plaintiff asserts was seized from premises, but as to which plaintiff asserts that the detailed property inventory's description of contents or location within the premises where the item was found is incorrect, said you took, you know, a box of folders, but like that folder actually came from the bedroom, you, whatever. Or right. C, and or C, a detailed list and description of any item that plaintiff asserts was seized from the premises, but is not listed on the detailed property inventory. So those three run the gamut, anything right? You say they've planted, anything you say they've lied about, anything YOU say they're stolen but they haven't told you that have it. And then, and this is the chef's kiss, this submission shall be plaintiff's final opportunity to raise any factual dispute as to the completeness and accuracy of the detailed property inventory.

0:42:20 Thomas: Ah. Oh, I love this.

0:43:16 Andrew: Tell us what you think they haven't gotten.

0:43:20 Thomas: Wait, this is the special master saying that?

0:43:22 Andrew: Yeah, that's word for word from the order. That's the case management order.

0:43:24 Thomas: Oh, wow. Yeah. Yeah. Yeah, I was going to say there's no way that judge is saying this, but this is great because I imagine that Trump is like, what? I thought I just got to say conspiracy and then I went. I don't have to do any work of like detailing out what exactly the conspiracy is. It's sort of like with the voter fraud. I get to just say there was fraud and voting machines and then that's it. I don't have to actually provide particular evidence for my claims. This is something that I imagine is going to give Trump a little bit of difficulty.

0:43:26 Andrew: Yeah. Nope.

0:43:55 Andrew: Yeah. And put a pin in that. An affidavit under penalty of perjury. The evaluation proceeds concurrently with the substantive review of the documents. So So even if they raise a ton of objections, that doesn't push out the dates any at all. So that's thing two. Thing three, Donald Trump also has to prepare a privilege log. This And is one that I want you to put a pin in.

0:44:18 Thomas: Is that like, "Oh, God, OK, I'm white. I was born to a rich guy who just scammed the government out of a bunch of housing money and didn't actually build the housing. Oh, boy, what else? I'm straight." Yeah.

0:44:23 Andrew: Not that kind of privilege. Privilege. Yeah. Trump has insinuated that executive privilege and or attorney-client privilege applies to some of the documents. That's the basis for the relief that was set forth in Judge Cannon's order. But again, he's just kind of implied it without saying. So the special master very properly was like, OK, cool. When you get the documents, go through and identify the ones that you think are privileged, and the government can look at that and then say either they agree with you and we'll give it back, or they disagree with you and I'll decide. But

0:45:01 Thomas: Wow. Making actual tangible claims. No way. You have to do that in a court of law. It's this this is you said chef's kiss. I'm just I'm loving this because it it just puts the lie to what his whole M.O. is. It's just make vague claims of corruption that are complete BS, offer no proof. And then a bunch of people go for that. And it's awesome to see him in a court have to be like, oh, there's oh, I'm all ears. There's corruption. There's there might be a crime afoot or whatever. There might be whatever, you know, like, we're all ears, Mr. Mr. Trump, why don't you go ahead and detail that out for us?

0:45:03 Andrew: Yeah. Absolutely. Absolutely.

0:45:38 Thomas: Why a list of it? Write down all the deep state conspiracies. Where on the doll did the deep estate touch you? And he can't do it. There's nothing.

0:45:43 Andrew: Yep. Yep. And there's one more thing, thing four, and that was further briefing. So the special master, remember, is going to make a recommendation, uh, despite the fact that there's no legal basis for this, for the federal rule of criminal procedure Rule 41G request to for Trump to get his stuff back, the special master says, "Hey, I want you to brief that," end quote. "In addition to addressing the merits of the Rule 41G motion, plaintiff's brief address specifically whether the motion may properly be resolved in this action or must instead be decided as part of the docket in the action in which the search warrant was issued," which is Judge Bruce Reinhart. In other words, can I get this away from your hand-picked weirdo?

0:46:35 Andrew: Absolutely. So that's the case management order. Two days later, Donald Trump filed his opposition. And I have a long ha-ha-ha in my notes because I just love this story. So Trump filed their their objection to this case management order under seal as document entry number 119. But then, because, again, remember, these lawyers are drafted at gunpoint to work for Trump, they were opposing the DOJ's motion for a minor change in a couple of the dates to extend out the deadline and talk about it, but it's not really important. They filed the sealed document as an exhibit, as an unsealed exhibit to an unceiled opposition. So I've been able to read it.

0:47:19 Thomas: Translate that into Thomas. They done effed up. Is that

0:47:22 Andrew: Sealed this document, which wouldn't let us read it.

0:47:23 Thomas: OK? Should it have been?

0:47:27 Andrew: No, it shouldn't have been. But again, they're trying to hide their arguments here. They filed it as sealed. The DOJ made reference to those arguments, uh, in its response, which properly was not sealed. Uh—and that response also contained a motion to change the time deadlines. And so then Trump's team responded to that, and in responding to that they attached their original filing as an attachment unsealed, so I got to read it.

0:47:28 Thomas: Shouldn't have been okay? So This is like when you're going to turn in your homework and everybody has to put it like on the teacher's desk and you just, it's just bullshit, you've just got nothing, like blanks or like couldn't finish any answers or whatever, and you're just like, "All right, just please don't draw any attention, please don't draw any attention to the," and then the teacher is like, "Like, what is this?"

0:48:00 Andrew: Mm hmm. Yep.

0:48:16 Andrew: That is that's a great analogy. So what does Donald Trump object to about the special master's case management order? And the answer is, of course, everything. Right. Because they first, we're not going to file actual verifications and you can't make us. Right? Right. So this is actually word for word what Trump's lawyers say with response to the request that they file an affidavit that says, hey, here are the things that we think are missing from your property report or are incorrect in your property report or you fabricated. Trump says, and I'm not making this up, to help find facts, the appointing order authorized a declaration or affidavit by a government official, they italicize that for emphasis, regarding the accuracy of the detailed property inventory as to whether it represents a full and accurate accounting of the property seized from Mar-a-Lago.

0:49:09 Andrew: The appointing order contemplated no corresponding declaration or affidavits by plaintiff, and because the special master's case management plan exceeds the grant of authority from the district court on this issue, plaintiff must object. Additionally, plaintiff currently has no means of accessing the documents bearing bearing classification markings, which would be necessary to complete any such certification by September 30th, the currently proposed date of completion. Let's deal with both of those in reverse. The special master is already extended to October 7th and will issue an exemption for documents bearing classification rankings. Does it exceed the grant of authority? Not remotely. We already talked about this. In the appointment order, it says, quote, the specific duties of the the special master are as follows and will include all powers necessary to carry out these duties.

0:49:54 Andrew: A, verify that the property inventory is correct. And then paragraph four specifically says, for avoidance of doubt, the special masters shall have all powers available to any special master under Federal Rule of Civil Procedures 53, which says the specialmaster can regulate all proceedings, take all appropriate measures to perform the assigned duties fairly and efficiently, And if conducting an evidentiary hearing, exercise the appointing court's power to compel, take, and record evidence, right? That is, issue subpoenas, hold witnesses in contempt, require them to show up. So the special master absolutely require Donald Trump to write an affidavit? 100%. There is no chance they're going to prevail on getting special Master to drop this request or getting Judge Cannon to come back and go, go, it never occurred to me that a special master might require an affidavit.

0:50:49 Thomas: Would actually do something.

0:50:51 Andrew: Yeah, that

0:50:52 Thomas: I thought special master just means I win. I thought it was just, I don't have to do this anymore.

0:50:56 Andrew: Is. So here's but this is why it matters. And this is what I think there is a reasonable chance that Trump just gives up and walks away from this. I keep, I don't, I stumble, it's not a lawsuit. It's not civil. It just did nothing, Right? It's A, it's but A Stalling tactic, yeah, so remember, Trump's representative, we believe that to be likely Russian asset Christina Bob, signed a certification under penalty of perjury on June 3rd, 2022, that, quote, "Based on the information that has been provided to me, I am authorized to certify on behalf of the office of Donald J. Trump," adding, "And in that office," thing does not take it away from it being Donald Trump told her this, okay?

0:51:11 Thomas: Yeah. It's a stalling tactic, I guess. Yeah.

0:51:44 Thomas: The entity known as such as, yeah. All

0:51:46 Andrew: Yeah, right, it's spelled in all caps, so it's his straw man and, you know, he's got to get the, redeem his birth certificate. Who knows, we're almost at that level of argumentation from Trump anyway. The following. A, a diligent search was conducted of the boxes that were moved from the White House to Florida. B, the search was conducted after receipt of the subpoena. And remember, that subpoENA was the one that requested return of all documents bearing any classification markings. And they gave over like one envelope that they wrapped all the tape around, remember? In order to locate any and all documents that are responsive to the subPOENA, and then here are the real bad parts. C, any and only responsive documents accompany this certification. And D, no copy, written notation, or reproduction of any kind was retained as to any responsive document. So not just admitting that Trump fed Christina Bobb materially false information in connection with the search.

0:52:39 Andrew: That's a bad thing to have to turn around and admit in an affidavit. But it's worse, because remember, this is a records-keeping crime, right, that is listed on the search warrant affidavit, 18 U.S.C. 793E. We have gone through the elements of that a couple of weeks ago. It says, whoever having unauthorized possession of any document relating to the national defense and willfully retains the same is then guilty of the offense and subject to up to 20 years in prison. Just filing any affidavit, no matter how carefully they word it, in connection with what the government says that it seized, pretty much admits to this crime. So there's nothing you could do, because you're going to have to say, I agree, they took a whole bunch of stuff that bore classification markings, and there's no way to get out of that.

0:53:33 Andrew: So I think that Donald Trump will do anything in his power to not have to file that affidavit.

0:53:39 Thomas: Wow. So you're say, are you saying that in order to even respond, essentially, he would have to just admit that he's committed the crime he's accused of? So

0:53:39 Andrew: Yeah, yeah That's right, that he has documents relating to the national defense that he willfully did not return, That the prior right? Certification saying, yeah, I've done a diligent search, I've looked through everything, I've given you everything that you could possibly want. Well, you know, except these 200,000 pages. That's a real bad document to have to sign.

0:54:08 Thomas: But he can just do a slowly back out of the room option, so

0:54:11 Andrew: Could slowly back out of the room. The other thing he could do is he could take the fifth, right? He could write an affidavit that says, yep, one

0:54:20 Thomas: He starts this whole thing He's like, "I need a special master, it's gonna clear my name," and do the special master asks one follow-up, and he's Like, I plead the fifth.

0:54:31 Andrew: Follow-up. Which documents do you do? Is this a complete list of the documents taken from your house? I, yep, yep.

0:54:36 Thomas: Okay. I'm especially appointed special master that you picked one question for you. Write down one fact about this case. I can't plead the faith, I can do it.

0:54:46 Andrew: I declined to answer on the grounds that what I say may tend to incriminate myself. And remember, this is civil-ish a proceeding, right? Like, again, it's an, so you

0:54:55 Thomas: Oh, yeah. Oh, but we've talked about that you can't, uh, wait, you can't plead the fifth. Oh, but it can be used as evidence against

0:55:00 Andrew: Can, you can plead the fifth in a civil proceeding. It can be used against you as part of the special master's recommendations. So, yeah, the special master could very easily say, okay, great, you took five. I don't have any basis then to believe that there's any materials that should be returned to you. That's my recommendation. Case closed.

0:55:06 Thomas: You. I gotcha. Okay, but can it further come back to haunt him, like, in the as this case goes on? Well, no, I guess, because he will actually be in a criminal thingy, but once okay, okay, gotcha.

0:55:29 Andrew: Yes, yeah. Yeah. And so, but he files a false affidavit, right, and, you who knows? But we will, We'll be watching. I'll go quickly here because the same problem exists with the privilege law. Initially, right, Judge Cannon's order used this weird characterization and specifically and called this out as mutually exclusive, says, Donald Trump's lawyers will put each document into one of four buckets. Either one, personal items and documents not privileged. Two, personal documents that are privileged. Three, presidential records that are not privileged, or four, presidential records that are privileged. And Judge Deary looked at that and was like, well, you're a fucking idiot, it, um, sorry, like,

0:55:33 Thomas: Yeah, yeah, this is great, I love this so much.

0:56:13 Thomas: Yeah, we can

0:56:14 Andrew: Yeah, like, can be privileged for multiple reasons, and so it's not mutually exclusive, right? Instead, what he gave was, were six categories. Again, these six categories stem from the four that that were in Judge Cannon's order, but they make more sense, so it says, hey, I want you, Trump's lawyers, to mark, to assert one or more of these six things with respect to every document. Again, proceed document by document. A, is it attorney-client privilege? B, is an attorney-work product privilege? C, is that executive privilege that prohibits review of the document within the executive branch? Now, the number of documents that should be in that category are zero, as the government has pointed out, right? There's no such thing as asserting executive privilege against the executive branch, but whatever.

0:56:14 Thomas: Bleep, it's fine, This

0:57:00 Andrew: To try and help Trump here, special right, master said, or D, executive privilege that prohibits dissemination of the document to persons or entities outside the executive branch. That is actually, again, trying to help him to say, okay, well, maybe there's some concern that it would go to Congress or something. Don't know. E, the document is a presidential record within the meaning of the Presidential Records Records Act of 1978, 44 U.S.C. 2201 et sec, and or, F, the document is a personal record within the meaning of the Presidential Records Act, C. 2202, subsection 3. Again, notice that this is just more specific and more tied to the precise statute and having to identify and assert the basis. For any document the plaintiff designates as privileged and or personal, plaintiff shall include a brief statement explaining the basis for the designation. That's where Trump's going to get in trouble, right, what this is, executive privilege, because, you know, makes me look bad, I mean, you know, who the hell knows, but, the special master demands specificity here, Trump would would rather not have that.

0:58:10 Thomas: Is My favorite special master, this guy, really I want there's this is so crazy because Again, We, yeah, well, actually, I was gonna ask you, we're kind of out of time, but I was going to ask you, like, how much, because it just, try to put perspective on it, you know, because we're obviously, we're on the left, we're against all that stuff, but, Andrew, how much is this a special master who is turning the screws on Trump, and how much is it just, oh, okay, I'm a judge, I'll do what a special master does in this instance. But because this is so batshit, that comes across like he is just absolutely trapping Trump. And it's just a series of complete, and it feels like it's almost like partisan, even though it's not, you know?

0:58:14 Andrew: He's he's just doing his job. Yeah, yep.

0:58:28 Andrew: The Everything we have discussed to this moment is what you would do, and, again, remember, conservative, Republican, Reagan appointee to the bench, right, yep, is what he would do to assess claims, right, like, you can't evaluate a privilege claim if somebody just says, well, I want my lawyer to say that that's privileged, like, no, you've got to fill out a privilege log, man. You've gotto tell us which documents do you not have.

So this one, the only one that feels like it's putting the screws to Trump a little bit, and again, I think probably because he very likely read the briefing to the 11th Circuit, is the last requirement in which he says you should also brief up whether the 41G motion that Judge Cannon's order contemplates and that I, the special master, am entitled and supposed to rule on, whether that should be brought before your handpicked weirdo or whether that has to go back before Magistrate Judge Reinhart, who was, after all, the person who signed off on the search warrant in the first place. And legal team can't even say that that is beyond the scope of the special masters authority because it very clearly is, right?

0:59:02 Thomas: Right? Yeah. So

1:00:03 Andrew: Right. Like, he's supposed to adjudicate all aspects of the Rule 41G motion, and whether you have the authority to rule on it in the first place is clearly one of those elements. Right. So instead, what they say is, but, you know, Judge Cannon didn't say we should have briefed it. So, quote, "In the absence of a clear directive from the district court on this issue, we respectfully suggest that the briefing requirement be withdrawn from your final plan." Man, I don't think he's going to do that.

1:00:32 Thomas: This is just reality coming for Trump. We need to get this This special master should be on every debate stage where it's just like, oh, you're saying that, rapists you and terrorists are crossing our border. Point to, give me one. Give me one example. Oh, you'RE saying that the election was fraudulent. Give me, tell me a tangible, give it one ballot, one fake ballot, put place into my hands. One fake. This is incredible. This is the this special master somehow represents everything that's missing from our political system and why it's failure and our political discourse, at least, you know, like actual tangible consequences.

1:01:09 Andrew: And there we go. I'm going to skip over the DOJ's reply, which is short and hilarious, I am but going to read their response on the briefing requirement, which says, third, the special master's request for briefing on a particular point of law is similarly consistent with the appointment order. The government will brief that point oflaw. It behooves plaintiff to brief that point as well. So I love that one where they're like, going to argue it. So if what you're saying is you don't want to, like, good luck with that. It's not often you get a chance to put good luckwiththat in your brief. And I love the DOJ. They summarize the entire thing. I got to read this last one, too, because this is a great wham line, though.

1:01:55 Andrew: And that is, plaintiff brought this civil equitable proceeding. He bears the burden of proof. If he wants the special master to make recommendations as to whether he is entitled to the relief he seeks, plaintiff will need to participate in the process by categorizing documents and providing sworn declarations as to the amended case management, as the amended case management plan contemplates. So, yeah.

1:02:09 Thomas: That's that is. Wow. Wow. That's brilliant. What

1:02:19 Andrew: All of this is going to get resolved next week. The plaintiff's affidavit is due October 7th. So yeah, it probably will not get resolved until after we record, you the show from a week from now. Yeah, are moving things forward.

1:02:20 Thomas: A farce.

1:02:34 Thomas: What an absolute farce? And we have been blessed with this conservative Reagan appointee who is not a Trumper. I mean, that'S all it takes to see how absurd this stuff is to just not be drinking the QAnon Kool-Aid. That'S the only thing it takes. Well, Andrew, this is a bit of a damper on how fun the last segment was, because just recording, Judge Cannon, it's like she let Trump write a decision for her, and this is unreal. She just undid everything.

1:02:40 Andrew: There we go. That's This is an astonishing decision, uh, coming through literally as we are recording, um, not a request by the special master to have the judge review this sort of thing. So this is, is literally Judge Cannon coming in, uh, and deciding to excise the parts of the case management order to which Donald Trump has objected. Um, we set this out at the beginning of the episode, right, this is going to leave the DOJ no choice, uh, but to go back to the 11th Circuit. Um, we're going, going to see how that gets teed up. As, right? To whether this is just seeking now larger injunctive relief crazy.

1:03:45 Thomas: Yeah. Yeah. I mean, cause my reaction to this is like, all right, can't the 11th circuit, can you appeal to the 11th circuit and just be like, look, we tried, this is just effing nonsense. Put an end to all this. Can that happen?

1:04:05 Andrew: So remember that the merits of this, we're at a lack of words for what it is.

1:04:11 Thomas: Okay. So that would be using that emergency thing we mentioned. I mentioned it was a emergency off the rails insurance. They're going to need to cash that in essentially.

1:04:12 Andrew: Yeah. Yep. Yeah, they absolutely are. Procedurally, how you do that, I have to tell you, off the cuff, I'm not even sure. Because I don't know if this would qualify for immediate interlocutory relief, right? This is, again, related to the special master. So maybe you get interlocatory relief because it's collateral to the appeal that's pending. It's weird. The 11th Circuit's not going to be happy about this, They issued right? A 20-plus page opinion that said, what are we even doing here?

1:04:52 Andrew: We're not clear that you have the jurisdiction to do so. You appoint a special master and then with zero request from the special master, intervene to give the plaintiff 100% of what he wants. No.

1:04:29 Thomas: Wow. Yeah, this is nuts. This person can't be a judge. We could, a circuit? I know this is insane, but like, could a Circuit Court be like, "Hey, this judge needs to step down, or else we will automatically grant an appeal against any decision she ever does in the future forever."

1:05:20 Andrew: It's very simple. If the 11th circuit just rules on lack of jurisdiction, this goes away. And

1:05:26 Thomas: No, I mean, could could this 11th Circuit effectively remove this person as a judge? This person can't be a judge. Is Not real life. Is there any hardball of like, "All right, we've ruled you're also not a judge anymore?" More

1:05:33 Andrew: I'm going to look to see what we can do with respect to judges that are just off the rails like this. But again, let me read from the summary. We talked about how, you know, you kind of have to affirm in an affidavit if, if you think any things have been stolen from you. This is what Judge Cannon said in rejecting the requirement of Donald Trump to fill out an affidavit. Quote, "Upon review of the matter, the court determines as follows.

There shall be no separate requirement on plaintiff at this stage, prior to the review of any of the seized materials, to lodge ex ante final objections to the accuracy of defendant's inventory, its descriptions, or its contents. The court did not contemplate that objection. Defendant since has complied with the requirement to attest to its new, revised inventory." That's true, and the parties in the special master are now situated to proceed forward with the review process pending exchange of the actual materials. I, I mean, that, that's just a non-sequitur, right? You cannot resolve Donald Trump's claims without hearing from Donald Trump whether he thinks there's additional stuff that the FBI planted at his, at Mar-a-Lago, or failed to turn over to him. I mean, it's just, it's

1:06:49 Andrew: It's bonkers.

1:06:49 Thomas: I'll tell you, I still think it's really good we did this segment, because I wouldn't have even known how ridiculous this is without that segment, Andrew. So, still worthwhile breakdown, but wow, what a blow. This is just nuts. This person's not real. This can't be a judge. This is fake. But we'll have to leave it there for now. We'll more on that later.

1:06:57 Andrew: Yeah, indeed.

1:07:07 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:07:13 Thomas: And now it's time for T3BE. I think, a 50%, a clean 50. If I answer this right, I go to a 66.6%. That would be, wow, what a great, then I'd quit. I'd just retire. That would be it. No, let's see. New book, question three.

1:07:28 Andrew: George, out of the high note, yeah. All right, Thomas, a golf corporation paid the world's number one golfer

1:07:33 Thomas: All right, now you're just pandering. You're just giving me, this is great. Golf question, oh, this Is the best.

1:07:42 Andrew: $330,000 to promote its golf equipment during a White House dinner as to which the world'S number one gopher was invited. On the night of the dinner, the golfer fell ill and did not attend. He may escape liability for damages by, A, offering a more valuable substitute performance, B, offering an equivalent substitute performance. C, offering to promote golf throughout the country, or D, suing for specific performance of the contract instead of damages.

1:08:02 Thomas: Hmm, He may escape liability by suing for specific performance. Okay. D is a real curve. It's real slice. Oh, he's a golf. Cause that, wow. All right. Love this. This is such a different book. I really, it's really is interesting. It really depends a lot on who's writing the questions, even though it's the same, you know, law, but it's just a, it's totally different, different voice. I'm enjoying it. So golf corporation, uh, paying to promote during White House dinner. That feels pretty irreplaceable. I mean, if that matters. I mean, it's not like that comes up a lot. On the night of the dinner, golfer fell ill and did not attend. He may, so saying he may, and I'm making absolutely sure because answer D is really throwing me off here. He may escape liability for damages by, for damage, well, it strikes me that he should be liable for damage, seems like, I mean, yeah, you fell ill, but damages, though. Does that, would that just mean paying back the money?

1:08:24 Andrew: All

1:09:10 Thomas: Or is that, cause Oh wait. It says paid. Okay, I think that helps a little bit. So the money is gone. You know, It wasn't like, oh, they agreed to a contract and blah, blah, blah. Golf corporation paid the money. It's not Tiger Woods, by the way. He's not number one anymore. It's that one guy. I forget. Actually, it's changed around a bit. We'll say Rory McIlroy. He might be number one recently. He's going to the White House and he falls ill.

You know, that happens. He's got the money, so it makes sense that golf corp should be able to get that back. You would think he didn't do the thing. He took the money but it says he may escape liability for or damages, which I think I can assume damages would be just paying back the money and not like over and above, you know, compensating. I think a offering a more valuable substitute performance.

B offering an equivalent substitute performance is what, what's interesting kind of consumes B in a way. Equivalent makes more sense, and it would, would be weird to be like, oh no, you have to offer them an even more of a double White House dinner. So I think not A. um That would be real tricky if it was A. I think B, I would, I would say offering an equivalent performance might be, might be the way, so I'd take B so far over A. C, offering to promote golf throughout the country.

All right, I don't know what the C is nothing, so this is weird. I'm on B or D, is the real, it's the real slice, real duck hook over here. D, suing for specific performance of the contract instead of damages, don't understand this. Would be, it's, it's, he may escape, so Rory would sue specific performance of the contract instead of damage, but he's not suing four damages. I, I don't understand what that. I really hope I'm not missing something obvious.

1:10:51 Thomas: Cause I, that doesn't make any sense to me. He's not suing the specific performance means. So would you counter sue? Why are you suing? Why, why wouldn't you just respond something? Oh, all right. I'll get over that because I guess we don't even know who's suing whom. It doesn't say that's even happened. It's just saying he can escape liability. So, okay, so D D would be suing for specific performance of the contract instead of damages. So that's okay. So D would Be saying proactively, I'm going to say, instead of giving the money back, to, I I Want to actually perform, specific performance is obviously a thing we've talked about, I think that's a right that the other people have. I think golf Corp has the right to maybe maybe, sue for specific performance and say, no, no. I don't want the $330,000 back. We want you to go to another White House dinner, essentially.

1:11:38 Thomas: And I think that's a right that they have. I don't think that Rory McIlroy gets to say, I'm going to sue you to specifically perform something rather than give you the damages. So, I think D might be an attractive distractor for lawyers, maybe, or something, or for people who recognize those words. And I think offering an equivalent, he may, and it's, he may escape liability. So it's not saying like he 100% escapes, but I think offering an equivalence substitute performance could be a way to escape liability, offering a more valuable substitute performance. Could also, that's, what's throwing me out a little bit. And for that matter, by that logic, offering anything, I guess could like, if you, if You go to the golf Corp and And you're like, yeah, sorry, but I'm offering you this, you know, sandwich.

1:12:26 Thomas: And they're like, all right, we accept. I guess that, by you, the logic of may escape liability, you can offer anything, cracker, I don't know. But I'm going to go ahead and guess that letter of the law might state that you can offer an equivalent substitute and just forget the logic that I mentioned just a minute ago. So I'm gonna go, be second answer is D, just in case I've badly misread that. But I think D is that attractive distractor. I think that's a right golf corp has, not Rory Mcelroy. So I'm going B.

1:12:53 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 guess, your reasons. Therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed.

1:13:06 Clip: And thank you, Let's go!

1:13:07 Thomas: And now it's to thank our new patrons at patreon.com/law, enjoying the goodies, the ad free episodes, the Law'd Awful Movies, uh, involving, um, possibly some she hulks Oh, by the way, Andrew is, we've said, on a beautiful, I don't know, villa or something, enjoying fantastic, no, a castle, I guess, a decommissioned castle. And so it's going to be tough to do our, to usual monthly live Q&A, but Andrew's come up with a, what I think is going to to be possibly an even better substitution. So he's offering, to avoid damages, he is offering an above, an even greater substitution. And that is that he's going to go find some backlog questions that we didn't get to, which is not hard to do because we get to like, you know, 10 out of a thousand questions. And he's gonna answer those kind of on his own, you know, a little intimate Andrew Q&A on his on time there when he's probably enjoying a delicious wine. Hey, Andrew, when you do that, make sure to tell everybody what delicious wine you're enjoying when you do that.

1:13:40 Andrew: I

1:14:05 Thomas: So That's what we'll get you this month. Thanks for doing that, Andrew. Even though you're on vacation, even though you traveling, still providing that awesome Q&A content for everybody. And then hopefully next month we'll be back with our usual YouTube thingy. That being said, new patrons who can enjoy that bonus. I share my T3BE answers on OnlyFans that's social media isn't it, Jo Ann Beatty, Chrissy Carter, Shaudius, The law, uh, finds a way, Take Legal Advice From

1:14:03 Andrew: Will. I will, absolutely.

1:14:34 Andrew: Yeah.

1:14:34 Thomas: A podcast, Rose Rodrigues, Chris Bush, Jeevan, oh the person's name is actually Jeevin, but I think that's also the name of the character from Station 11, if I'm remembering, it's been a minute, but uh what a great book that is, a book and show, Station 11. If you never caught that, Pegajace, Michael Terrell, Tonia Jordan, Mathilde Lindhart, Episcopal Priest Enjoying Great Legal Analysis. Well, that's interesting. Wow. Okay. Hannes Hergeth, Ramona Head, Catherine Wilson, Michael Larsen, Unemployed, but still supporting the best podcasts. Well, you know, if you're unemployed, it's okay to not pledge, but we do appreciate the support, but by all means uh if anyone's ever in any precarious financial situation, you know, feel free to unpledge it's

1:15:18 Andrew: Take care of you and yours first, absolutely,

1:15:19 Thomas: Okay yeah Enma the Aussie Barrister, oh Zinta Jauntirans-Vogel, I'm so sorry for that, I don't, how to pronounce that. Hopefully Zinta you're having a good laugh at my expense for whatever my pronunciation was just then. And A Mega Exploding. Your turn, Andrew.

1:15:36 Andrew: Thank you too. Wolf Witt, How much do I need to pay to hear everything Eli's ever had bleeped? Yeah, more than you can afford. Good Will Bunting. North Chiller, Nate Roszek, Katherine M, Colin Rymer, the_cosmic_alexolotl, Nathan Schonegg, Rebekkah, Eric Osmundson, Stephen, Brendan Davis, Sean Milligan, Josh Stortz, Currently studying wave mechanics in sugary citric acid solutions, morrcahn, Elizabeth Pagano, Oh, Sean Wilson, Cory Jacoby. And If Biden likes Japanese food, does that make him the President Pro Tempura?

1:15:47 Thomas: And

1:16:19 Andrew: I love it. Thank you all so much. Remember, you get a shout out if you sign up at any level. Patreon dot com slash law. And thank you, everybody who has signed up.

1:16:31 Thomas: That's our show. Look forward to next episode where we are giving you a breakdown that I can't believe we've never done. Citizens United. We're finally tackling it. Do not miss it. Next episode, Citizens United, we'll see you then.

1:16:35 Andrew: All right

1:16:44 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.

1:17:17 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.