OA637: Trump's Appeal Is On Clarence Thomas's Desk, But That's Ok

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments. This is episode 637. I'm Thomas. That's Andrew out on a boat, as we say every time. I think literally this time. Uh, how's going?

0:01:27 Andrew: I'm on a boat. There's very little that I can complain about, so I won't.

0:01:34 Thomas: Wow, but not fantastic? No, we didn't even get- you're on a boat and we didn't even get your signature fantastic out of you.

0:01:43 Andrew: Is right in the world. Show comes out, it will be my birthday. It will also be, this is a hiring policy, Ace Associate Morgan Organ Stringer's birthday, so you send her happy birthday wishes and Yeah, literally, all the lawyers in the firm have, have birthdays tomorrow, so

0:01:45 Thomas: Oh yeah. Wow. The whole firm. The yeah, the entire What are the odds, that's awesome. Well, even more important than that, Andrew, the Sharks' first game is tomorrow, and I know you, you also would value that.

0:02:08 Andrew: Oh, yeah, And, the Rays game, one playoff game, yeah, so, You know, yeah, the Dodgers, have the a bye, have a bye in the first round because they won 275 games in the regular season.

0:02:13 Thomas: Oh, is, oh, that's right, yeah, it's already, uh, baseball playoffs after right, oh, I'm so glad real sports are starting so I don't have to pay attention to that, all right, let's get to, we have so much I think that you've wiped the whiteboard like four times this week, even as you've been boating, so we'd, we've jam-packed everything to the point where even in the pre-segment you've, like, inserted a cell here to talk about something in the spreadsheet, cheat.

0:02:26 Andrew: Oh, painful.

0:02:36 Andrew: It's been crazy. Yeah. So this just came out and I thought this was worth mentioning. I have this as a, you know, F-A-F-O for, you know, f around and find out. This is a lawsuit by Fund Texas Choice versus noted villain Texas Attorney General Ken Paxton. It relates to Paxton's statements that Texas would prosecute people like us, right? People who collaborate with us. People That who go into Texas and facilitate women and those who may become pregnant in getting abortive care abortions outside of Texas. And they filed a lawsuit and what they wanted to do was depose Ken Paxton.

And initially, Paxton, filed yeah, a motion to quash or, you know, motion to squash, as some people would put it. And the Court granted that on the basis of what is called the Morgan Doctrine. Not Again, our beloved Morgan, United States versus Morgan, 313 U.S. 409, a 1941 decision that basically says a party may not compel testimony from a high ranking official without exceptional circumstances. And I emphasize that it's 1941 case because, you you might feel differently when Trump invokes it. That's right. But by and large, it's probably a good idea, cranks right?

File lawsuits all the time. And, Know, you God help us if every time Larry Klayman was like, I want to depose Hillary Clinton, he could to, he's you deposed her a lot, but not nearly as frequently as he would have liked have, to to have deposed Her.

0:02:53 Thomas: Yeah.

0:03:32 Thomas: If

0:04:20 Andrew: So, you reasonable doctrine, court grants the motion to quash, and that's the end of it, right? Turns out, wrong, because after evading service of process, Ken Paxton then went on to brag about how he had successfully evaded service of process and moved to quash and wasn't going to have to testify. And so the plaintiffs were like, "Okay, well, we're filing a motion for reconsideration." And the basis for their motion for consideration was the Morgan Doctrine, is based on the idea that public public official time is precious, right?

0:04:55 Thomas: You've got time to gloat over how you successfully avoided this whole thing, arguably you've got time to just do it. Wow.

0:05:04 Andrew: Got time to sit down for a goddamn deposition. That's exactly right. And wouldn't you know it, the court reconsidered and said, are absolutely you reversing course, and Ken Paxton has to sit for a depo.

0:05:09 Thomas: Wow. And and, and in general, based on, uh, experience of listening this show, I feel like just asking a court to reconsider the same thing, saying, just, like, on average, is pretty low batting average, right? Like, that doesn't almost, no success with that. So this is pretty incredible.

0:05:29 Andrew: Yeah. That's right. So here's what the court said. Paxton also contends that having to testify would create a significant burden given his role as attorney general and the short timing in question. In general, federal courts should recognize the fact that high-ranking officials have significant constraints on their time. Yet the idea that Paxton would be unduly burdened by testimony in court is belied by his many public statements and interviews in which he threatens civil prosecutions of Texans. And then there's a citation to the docket. It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions, but would be unduly burdening by explaining what he means to the very parties affected by his statements. To the extent Paxton is burdened by his testimony, it is because both he and his office have declined to take a clear stance on the legality of out-of-state abortions while issuing statements suggesting they're illegal.

0:06:23 Andrew: The burden faced by plaintiffs, the effective cessation of many core operations, outweighs the burden of testimony faced by Paxton. I love that. I thought it was a great way to kind of start out the show. You last week, we recorded 90 minutes on a case management order, only to find out that Judge Cannon had intervened and gutted it.

0:06:42 Thomas: Oh, do you want to know this week's version of that, Andrew? You're on a ship. So I don't know if your ship has gotten the news yet, but just now as we're recording, president Biden has pardoned all prior federal offenses of marijuana possession.

0:06:50 Andrew: You All right.

0:06:57 Thomas: So that's pretty big news. Yeah, pretty no, I imagine no deep dive on that, like right this minute, But any preliminary reaction to that? Or we will just tie up the the loose end you were just on. But I you bring up the fact that we got preempted last week.

0:06:59 Andrew: That's huge news.

0:07:11 Andrew: Preempt again. No, that's fantastic. There is compelling justification for keeping any, don't I care, you right? Could have been arrested with garbage bags full of the marijuana. Uh, And it is hard to imagine that there is a compelling case to continue to keep you in prison on let alone the evidence of racial imbalance in those sentences are off the charts. So that's fantastic. I'll have to look at what that EO does. You know, we have talked about, like, the Ban the Box initiative, getting laws passed at the state level that prevent prospective employers from asking if you have a prior criminal history. And a large extent, kind of a knock-on on this, it so will be interesting whether the executive order specifies the effect of the pardon on prior convictions and if was your that first and only conviction, whether you can now truthfully state to your employer, Like, I was pardoned. That didn't happen.

0:07:44 Thomas: Oh, right. Yeah. Oh yeah. Oh Yeah. Is that dependent on the EO or is that a generality thing? Like because I know you if get your sentence commuted or whatever, you still were convicted of the crime. But does the pardon. Yeah, does that just erase the whole thing? If I had one conviction for marijuana possession, that'S only thing I've ever had. Biden pardons it right now. Do I get to say, hey, never been convicted?

0:08:21 Andrew: That is, yep, yep. Yeah, it's not clear, right? Like, we've talked about the circumstances surrounding the true in the main assertion that acceptance of a pardon implies guilt, right. Right. Because there have been posthumous pardons and the like. Yeah. So I can't tell you, having not looked at it, having had this sprung on me at the moment. But but I will tell you this seems to be an unambiguously good thing. And the question is, of how you far does the extent of of that good thing go? No, But that's fantastic.

0:08:47 Thomas: Yeah.

0:09:01 Thomas: Well, that's this week's iteration of news had to break right the F when we were recording. Uh, but at least it's good news. It's great news. Unlike last week.

0:09:08 Andrew: There you go.

0:09:09 Thomas: So the stories of Paxton running away from the deposition or whatever, was that overstated or what? Or the headlines gave me the impression that he fled, you know, or like was, you you know, doing parkour to kind of avoid the, so it wasn't really that.

0:09:15 Andrew: He literally evaded service of process. Yeah, I don't know what techniques he, you employed. But, you I've had litigants evade service of process. What you have to do is hire very determined process servers. First that's

0:09:35 Thomas: Yeah. I feel like if the parkour you do is cool enough, you should be allowed to get away with it. You know, like

0:09:42 Andrew: True yeah you should you should get a minus one right fair enough

0:09:44 Thomas: If Jackie Chan does one of those cool, like run up the walls, flip over the gate thing, just get away. Like you do that like three times. Fine. You win, you know?

0:09:53 Andrew: Fair enough I'm with you

0:09:54 Thomas: Put a bottom line on that, they are going to get to deport him. That hasn't happened yet, though, right? We just got the... Okay, Cool. So that's good news. Extra good. And news in our surprise pre-segment as well. Now, 10 or so minutes into the episode, at least, let's get to the episode. So, um, big developments in the Trump Mar-a-Lago, I, I mean, the one that I have top of mind is Trump just, like, you DMing the Supreme Court and just be like, can you just fix all this, please. Yeah.

0:10:00 Andrew: Correct, correct. Yeah, kind of. So let's look at, at all you three levels of resolution, right? Let's look at the trial court level, that is Judge Cannon, Federalist Society weirdo, the 11th Circuit, and the Supreme Court. And I would say all three of of those are pointing in the right direction for us. Want to I flag the potential issues that are out there. Let's start with Judge Cannon right after we finish recording. I just cannot emphasize this strongly enough how corrupt this is, you right? Can infer from the typical practice practice of a district court judge, which have I told you since we started the show for the past 40 years, our district court judges are tragically overworked. And this relief that Judge Cannon issued was sui sponte. And what that means is without a request from the other side.

0:11:09 Andrew: So in other words, the judge was sitting here, Judge Eileen Cannon, FSW, was sitting there watching, watching the docket, reading the pleadings that were sent to her special master, the right person she appointed. And the reason that you as a court appoint a special master is because you're too busy to do the stuff that you want the special master to do, right. So she's reading those pleadings and then decides to intervene before the special pastor can say, um, that, that, that's ridiculous, don't need I that.

That position is nonsense. And that's very, very telling. Judges don't sit around watching the docket like we do. The whole point of a special master is that the court is too busy to do that particular job. Look, it looks bad to us, it looks bad to the, to the rest of the bench, right, it, it, it really does, some people don't care, um, but the idea that this, you fit into a pattern, and, you and she did it, and now it's fine, like, that's not really the case. This right is the kind of thing that, that stands out as reeking of corruption. So what did we tell you last week was there to backstop Judge Cannon getting a wild hair and acting weird? Our friends at the 11th Circuit. Literally the day after this happened, right, exactly what the DOJ did.

They went back to the 11th Circuit. They said, hey, you know how you granted us a stay and we, we filed an interlocutory appeal, we'd like you to adjudicate the merits of that, that interlocutory appeal as fast as possible, right. And I was going to break down the DOJ's pleading and Trump's response, which, by the way, was idiotic. But

0:11:57 Thomas: You don't

0:12:43 Andrew: I don't need to because, because the day after Trump filed his response, the 11th Circuit was like, OK, well, we're going to grant the relief that the DOJ requests. They got that in before requiring the DOG to file a reply brief. It was just like, yeah, we've seen enough here. They granted the motion in its entirety. It, it's just transparently ridiculous that all Trump wanted to do was delay the proceedings because, you know, he pushed out the days here and there. And then because the reply brief would be do at the end of November, uh, Trump through, and again, this is his most respected lawyer, Chris Guys, uh, said, well, and obviously, you know, it's not like, it's like, anyway, he's gonna do any work in December, come on, so why don't you, uh, set oral argument on this, uh, you know, sometime in late January. And, um, and the 11th Circuit was like, that, that's ridiculous and idiotic and stupid, we, we work here in December, even though there are a lot of holidays.

0:12:43 Thomas: Say wow

0:13:40 Andrew: So the 11th Circuit grants appellant's motion to expedite appeal. And here's the things that you need to know. The court directs the clerk to expedite the appeal for merits disposition purposes. Having consulted with the chief judge, the appeal will be assigned to a special merits panel from the classified appeals log, randomly selected by the clerk. So it's going to be a different group of three judges that hears the appeal on the merits than granted relief in the first place here. Again, the 11th Circuit is a conservative circuit, you'd like to stick with the panel that's already pretty clear on what's happened, but I'm not too worried about this. This panel, 3-0 with two Trump appointees, has said, this is, is nonsense, and I

0:14:22 Thomas: 3-0 with two Trump appointees I don't know if I missed that, but, but that's incredibly good news.

0:14:25 Andrew: Yeah. Yeah So it's going to be a different panel, it could be a better panel, you might right, get some of the older Republicans, there's, you like a 30% chance, uh, one of our, uh, math professor listeners actually did the chance the of getting, uh, Clinton and Obama appointees, and it's like 28, 29, right? So, you, it'll, look the panel like could get better, um, the only thing is got you a panel that's already granted you relief and has, you has suggested we think there's no merit to this whatsoever. So you'd like it to stick with that panel, it's not going to, that's, that's the thing you need to know. The court set the following briefing schedule. DOJ's, uh, brief is due October 14th, one week from today as you listen to this, if you're listening when it comes out, uh, Trump's response is due November 10th, that time got shortened, and then the DOJ's reply brief, if any, is due seven days after that, on November 17th. So, uh, as opposed to Trump's deadline, which

0:14:31 Thomas: Yeah, that's

0:15:19 Andrew: Was going to have oral arguments sometime, uh, in the next century, uh, the 11th Circuit is like, you know, we think we can knock this thing out before Thanksgiving.

0:15:28 Thomas: Great, because the only play was delaying right. Like I mean, there wasn't any way that like Judge Cannon was going to, like, get rid of this whole thing for Trump by herself or something.

0:15:31 Andrew: Yeah. Yeah. This is about throwing roadblocks into the DOJ's investigation of Donald Trump's criminal activities. And Judge Cannon wants to do as much as possible. And the 11th Circuit said, like, convinced that that's the role of the courts is to prevent the Department of Justice from bringing criminal investigations against likely wrongdoers, they were the person who put you on the bench. So, good news. We have no reason to believe that it will precede anything other than incredibly expeditiously, and the merits are just completely one-sided. We've been over this before. The court lacks equitable anomalous jurisdiction because there was no wanton or callous disregard of Donald Trump's constitutional rights. What there was was a search warrant, right?

0:16:27 Thomas: How dare you issue a search warrant?

0:16:29 Andrew: Going to transition over because we're going to talk about the Supreme Court in a minute, people are rightfully worried about that, and they're rightfully worried about the application going to Justice Clarence Thomas, you and should be worried about all of that. But I want to bracket and tell you that there are two types of conservative judges, howler monkeys, right? It's why I coined the FSW, Federalist Society weirdo, for Eileen Cannon, to differentiate her from howler monkey, right, and this is how I would do so. The Supreme Court is stocked with howler monkeys, five to six of them. And they are conservative activists who care about reaching a conservative political outcome in any particular case. But they are not, they're on the Supreme Court already.

0:17:15 Andrew: They be impeached if we lived in a universe in which the Democrats could someday get 67 votes in the Senate, but they're not going to get impeached, right? So they don't owe Donald Trump anything. And we've seen that time and time again, most recently with the litigation by and between the Biden administration and NARA, the National Records Archives, and Trump, in which this hyper-conservative Supreme Court, 8-1, with only Clarence Thomas dissenting, said, yeah, executive privilege belongs to the, the present executive. And the reason they do that is because they care about the future of how later presidents are going to use their ruling more than they care about doing a solid for Donnie.

0:18:02 Thomas: Well, I want to not underestimate. Underestimate. I agree with you, and we've seen this, you know, but be, it could be eight one, because don't underestimate the fact, I I think there's a bit of a tendency on our side, and I've certainly done this, to think that, like, all these people are rational actors, but they're only, you being Federalist Society weirdos who rule in just insane Judge Cannon esque ways because they're dependent on Trump for something or they need him for something. And with, with Clarence Thomas, I think we've seen that there is a percentage of them who are just true believers. Like, you wouldn't think it's possible, but I think Clarence Thomas and maybe even Alito, to a certain extent, are almost true believers in the Fox News version of the world. And maybe to a sudden extent, Clarence Thomas, the Trump version, the QAnon Trump version of world, at least his wife is.

0:18:02 Andrew: Right.

0:18:47 Thomas: I don't know. I used to think that too, of just like, well, they don't they're, need Trump for anything. They're on the court for life. But I don't know. I think we got to be careful because some of them at least genuinely are true believers who are, who are that into this alternate reality, I think.

0:19:02 Andrew: Yeah, I totally agree with that. And And that's the distinction that I would make. Those judges that are either personally loyal to Trump, certainly with what we've seen from Jenny Thomas's text messages that the One six committee has, you Clarence Thomas goes home and shares a bed with someone who believes the big lie. Right?

I guess it's possible that he's skeptical and, like, know, they you stay up late at night debating, you know, Terpsichore, and, you know, the, the audits in Antrim County, Michigan, or whatever, but yeah, there are reasons to be nervous about that. But in general, what I would say is this pushes up against conservative judicial activism because the precedents that you're setting here.

We have already seen the leader of the Oath Keepers, Stuart Rhodes, request a special master in connection with the search warrants executed in his case, the right? Only harm anyone can ever point to is you might be indicted because the government's investigating you because they think you've committed crimes. And I don't think the Supreme Court is eager to help out potential criminal defendants. So that's a good transition to how Trump is sort of pathetically trying to fight back. This is the SCOTUS, right? Right. So just want everybody to understand the timing on this.

Two weeks after the 11th Circuit granted the relief that the DOJ wanted and 10 days after Judge Cannon herself revised the order with respect to the special master to to cross off the bits about reviewing confidential documents. Now, Trump has requested emergency relief from the Supreme Court. The justice that sits over the 11th Circuit is Clarence Thomas. And if you've tightened up from below the waist, you have every reason to do that, For right? All the reasons we just discussed. But I don't think Clarence Thomas is going to vacate the 11th Circuit stay here, even as far gone as Clarence Thomas is.

0:20:16 Thomas: You don't think it'll be an eight-one thing, or they won't even get cert I

0:21:07 Andrew: Neither neither of those two things are actually going to happen. Of the way that individual Supreme Court justices are assigned administrative functions over particular circuits. This question goes only to Judge Thomas. So he can, on his own, vacate the 11th Circuit stay. However, he can. That is Rules 22 and 23 of the Supreme Court rules. I know not a lot of people are talking about that. Here's why I think that doesn't matter. Would Because happen is if he were to vacate the stay, DOJ would immediately go on the full Supreme Court docket that would require a grant of cert, but would only require four justices, and would request request reinstatement of the 11th Circuit stay, and you would get an eight to one smackdown of what Clarence Thomas does.

0:21:10 Thomas: Huh wait really, but how long would that take? Oh, really

0:22:00 Andrew: That would take no time at all. This is all shadow docket, emergency relief stuff. But right now, right, It is docketed with the Supreme Court. It does not require cert. It It is before Clarence Thomas. Now, I suspect that Clarence Thomas is going to kick the question to the full court, yeah, he won't recuse himself. I don't think he's going to take the initiative to either grant or refuse to grant the relief right away. I think what he's gonna say is, gonna let the full Court decide this. And my reason for thinking that is, I want to parse this very carefully here, at the 11th Circuit level, because the 11st Circuit stay is already in place, and then you've now had Judge Cannon kind of monkey with the case management order, delay serves Donald Trump. Right. Because Judge Cannon can continue. She's already extended her deadlines once. She can continue to say, well, you know, the special master has to sign off on this in triplicate and then do the hokey pokey and, you know, file Like she can continue to add insane criteria onto her order to push things out longer and longer.

0:22:02 Thomas: Oh so, not recuse, but Wow.

0:23:11 Andrew: And so delay serves Donald Trump With respect to the request to vacate the 11th Circuit's order, that is only with respect to the documents bearing confidentiality markings, delay favors the Department of Justice, right? Because just filing the motion, we've talked about this before, it's thing that takes a little bit to understand, just filing their request is not sufficient to stay the implementation of of the order. Things So are continuing. The DOJ is right now, we have no idea. They could be getting additional search warrants, additional subpoenas, making additional arrests on the basis of those 103 documents. And there's nothing that any court can do about it unless the Supreme Court decides to stop it.

The longer the Supreme Supreme Court takes in adjudicating this request, the better it is for the Department of Justice. And the very first sign we got was Clarence Thomas did not accelerate the request on the calendar for the DOJ to file their response brief, right? The default is one week. Trump filed his, so he filed on October 4th. So the default response from the DOJ is that it's due next Tuesday, October the 11th. Um Clarence Thomas could have easily said filed it within 24 hours, 48 hours, didn't do that. And I think the fact that he didn't do that is some level of reading the tea leaves, the writing on the wall, right? This is a nonsense request.

Uh I should be clear that what Trump has filed is not an indefensible legal argument, but it's missing the most important component, right? So argument, yeah, know, this is the strongest praise I've had for anything Trump's lawyers have ever filed in the history of ever. It's an argument about pendant jurisdiction. And the argument is, right, technically correct the best kind of correct? It says, remember we discussed how the DOJ sort of outmaneuvered both Trump and Judge Cannon by getting her to characterize the order appointing a special master as injunctive relief and therefore immediately appealable interlocutory on appeal? Appeal. What Trump is arguing is that, that rule saying I will appoint a special master is immediately appealable as interlocutory relief. But the specifics of who the special master is not.

0:24:52 Thomas: That's an upgrade.

0:25:37 Andrew: And the question is, it's a doctrine called ancillary jurisdiction. And it says, when you bring says, up something that is immediately appealable, what else comes along with it? I think the DOJ has by far the better of the argument here in a way that's not close of, If we can immediately appeal the order saying, I'm going to appoint a special master, then the order appointing the special master comes with it. But Trump's argument is, no, it doesn't. And again, as a lawyer, that's not the dumbest thing he's filed this year.

0:26:09 Thomas: Not a high bar, but

0:26:10 Andrew: Yeah. But as you in particular, and as all opening arguments listeners know, in order to get emergency interlocutory relief, you not only have to show likelihood of success on the merits, but you have to shows irreparable harm. Standard here is a little bit bit different. You have to show a third thing when, when you're asking a, single Supreme Court justice to vacat an appellate, a circuit court of appeals, uh, decision staying to enter a stay. You, you also have to show that that appeal will get to the Supreme Court on the merits, which they're going to be able to do here.

Um, and then you have to showshow, uh, that the rights that would, would be adjudicated by that are maybe seriously and irreparably injured by the stay. And then it's not just likelihood of success on the merits.

The third criterion is that the justice, you know, here again, Clarence Thomas, is I of the opinion that the Court of Appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay, um, super high burden of likelihood of success on the merits, not right, just, we think we're right, but we think that the 11th Circuit is, quote, "demonstrably wrong"

0:26:22 Thomas: Yeah.

0:27:20 Andrew: And we think that that the rights that are implicated here may be seriously and irreparably injured by the state. It will not shock you that this brief does not contain a section that says Donald Trump would, would be irreparably harmed if the stay continues. Argument is presented sort of piecemeal throughout the brief, and the best I can find is at the bottom of page 34, extending onto page 35, which says, "The government's position presumes certain documents are in fact classified, affording President Trump no opportunity to contend otherwise. This presumption is at the core of the dispute. Since President Trump had absolute authority over classification decisions during his presidency," the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document.

0:28:11 Thomas: What?

0:28:12 Andrew: Yeah, that's their argument for irreparable harm.

0:28:12 Thomas: Because Yeah, but like is again, remind us what the hell this even is, Andrew. Andrew. This is a civil fricking something that, cause that sounds like what Trump would put up in his criminal defense, like during the trial. I don't know how that, no.

0:28:28 Andrew: That's exactly, you that are, I'm sorry, I didn't mean to cut off the end end of your sentence, are 100% correct. This is not irreparable harm. This is not even harm. And in fact, that President Trump has plenty of opportunity to contend otherwise. If Trump were indicted, he could absolutely 100% challenge the classification markings of each and every piece of evidence that is used against him at trial. So this assertion, which by the though it was made with no citations whatsoever, it's just wrong as a matter of law. It does not begin to establish anything like what we think it establishes. So yeah, you're right and they're wrong. I'm not worried. That's a long-winded way of saying I am not worried."

0:28:38 Thomas: Yeah.

0:29:13 Thomas: I, I'm like not worried, but like 10% worried. I dunno. Is There, is there there any way you could be wrong about this, Andrew? Like, like, I feel like the other justices are definitely, you know, there have been rulings that have been 8-1 or even 9-0 on stuff like this. They've, they're not just going to go along with big lie, whatever nonsense, they've shown that, I guess, right? But what, what would be the way you could be wrong? Clarence Thomas does this thing on his own, you know, and then the rest of the court could, they quietly just not fight it?

0:29:20 Andrew: So what would happen is, Clarence Thomas does this on his own, then the DOJ would petition for writ of certiorari to reinstate the vacated 11th Circuit opinion. That would have to get four votes, which would mean it would have to get Chief Justice Roberts' vote. And then it would have to get at least a fifth Supreme Court justice to reverse. Again, I don't think that's a challenge, but you if want a pucker up, that would be the pucker-up. But I want to tell you, even if that's the case, there are a couple of things here.

Number one, it's not clear what relief the Supreme Court can even issue, you. Because remember that Judge Cannon herself revised the order. We talked about this on last week's show. Revised the order to take out the reference to the classified documents. Now, they could say, we think this was improvidently granted, and then that would allow Judge Cannon the flexibility to go back and stick it back in again. And I'm sure she would take advantage of it. But the Supreme Court acting alone cannot reinstate Judge Cannon's initial order because she's superseded it and she's the sitting judge.

0:30:27 Thomas: It is really tough for the average person to keep track of how many levels of bullshit this is, Andrew. It's a good, important reminder there.

0:31:07 Andrew: So, I know. I. That's why that's why we do it. So I agree with you that, know, it's why I feel reasonably confident despite the fact that I understand and appreciate that there are significant reasons to be nervous. I don't want to downplay that, but I do want to say that I think, given everything that we've described, that it would be very, very unlikely to be something that would substantially interfere with the DOJ's investigation. Again, remember, the DOJ continues to use these documents as we speak, unless and until a court delivers relief, can continue to use it. Those investigations, that additional aspect of the criminal process is ongoing right now. Now, and if you don't think that the prosecutors in connection with the FBI are, working at warp speed, knowing

0:31:11 Thomas: That's what.

0:32:01 Andrew: That Trump is trying to to sabotage them from the outside and is aided and abetted by, his you cadre of weirdos on the bench, then you don'T know enough prosecutors. So

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0:33:49 Thomas: That's B-O-M-B-A-S.com slash Opening Arguments, all one word, and use code Opening Arguments at checkout. One more time, I'm Bombas, B-O-M-B-A-S dot com slash Opening Arguments and use that code Opening Arguments for that 20% off your first order. This show is brought to you by the Jordan Harbinger Show. I've told you about Jordan Show a lot. If you're a podcast listener, this is another podcast that you should be listening to. The combines in-depth interviews with some of the world's most fascinating minds, with Feedback Friday episodes to respond to listener questions about everything from conventional conundrums like asking for a raise at work to doozies like helping a family member escape a cult. I listeners will know I give you a recommendation every time, and usually it's very fun.

0:34:38 Thomas: I'm going to do something a little different because there's a recent episode that I think is very important, not necessarily as fun as say Bill Nye or some of the other delightful ones. This This is something that I just don't think is talked about enough. It's not really a thing for our show to do. There's not a lot of like US law deep dive questions about it. It is just a horrible thing that doesn't get enough attention. So if you'd like to learn more from somebody who has been on the ground and knows what's going on, listen to that latest episode of Jordan Harbinger show. Is the author of No Escape, The True Story of China's Genocide of the Uyghurs. And that's the kind of diversity of show that you get over on the Jordan Hardinger show. You get lots of fun, you get listener questions, you get advice, but you also get very serious topics and very important topics as well.

0:35:27 Thomas: So for the Jordan Harbinger show, that H-A-R-B as in boy, I-N as in Nancy, G-E-R on Apple Podcast, Spotify, or wherever you listen to podcasts.

0:37:06 Thomas: Right. Twitter and the story that won't go away. Elon Musk, perennial idiot, probably is smart about a particular thing and continues to show how that doesn't mean you're smart. Aren't, if you make a billion dollars doing one thing, it doesn't mean you're good at everything or know anything about anything. Uh, comments on Ukraine was just, just absolutely it was So bad that I, I hope that a little bit of his own hive even might have been like, all right, maybe, maybe this guy's isn't the genius on every topic that we thought. But that aside, uh, is the deal back on? It's been alleged that this is like an Andrew was wrong, because he is going to buy Twitter at the original price. Remind us what's going on here.

0:37:24 Andrew: Oh, yeah.

0:37:44 Andrew: This Is not an Andrew was wrong yet, okay. If, if it turns out that I'm wrong, I'll a hundred percent own up to it. But the main lesson that we tried to impart to you four months ago was just because Elon Musk says something in a letter does not make it true. Response to that, now lots of people are quoting a letter Elon Musk wrote and saying, well, no, see, it says this. So describe what happened. Elon Musk has twice postponed his deposition in the Delaware state court proceeding involving his attempt to back out of this deal, are right? The claims by Twitter that he has breached the agreement, and Elon Musk's counterclaims that, no, Twitter breached the agreement because of all the bots and the, you know, whatever else we can make up. And right, so during the discovery process that they're going to take Elon Musk's deposition, they were going to Take it in September, but there was a like, potential COVID exposure thing. I don't know. And it got pushed back to the day that we're recording this October 6, then October 7, Thursday and Friday.

0:38:33 Thomas: Oh, wow. We won'T get to SEE it, will WE? Like with some of the other depositions, like the Alex Jones one.

0:38:51 Andrew: Oh, no.

0:38:51 Thomas: Ah, man.

0:38:51 Andrew: No, I would love, yeah.

0:38:53 Thomas: I would love to lot awful depositions that asshole so badly.

0:38:56 Andrew: I know. The one thing I have learned from covering this Elon Musk decision to buy Twitter is previous nuanced views of Elon Musk were 100% wrong. He's just horrible and an idiot in every way. Um, Elon Musk really really, really, really, really does not want to be deposed. And after doing the whole, I mean, there's a COVID exposure October 3rd, Monday this week, he sends a letter. I'm gonna read the letter in its entirety and see if you can find the reasons why maybe it's not exactly what people are reporting in the news. But as of today, Twitter has agreed to postpone his deposition again. And we're going to sort of talk about what their response is.

But all Elon Musk has done is send this letter, which again, is now part of the SEC archives. And it says, "Through counsel, behalf of X Holdings 1 Incorporated, X Holdings 2 Incorporate, and Elon R. Musk, Musk, the Musk parties, we've talked about that structure, we write to notify you that the Musk parties intend to proceed to the closing of the transaction contemplated by the April 25, 2022 merger agreement on the terms and subject to the conditions set forth therein, and pending receipt of the proceeds of the debt financing contemplated thereby, provided that the Delaware Chancery Court enter an immediate stay of the action, this case, and adjourn the trial and all all other proceedings related thereto pending such closing or further order of the court. The Musk parties provide this notice without admission of liability and without waiver of prejudice to any of their rights, including their right to assert the defenses and counterclaims pending in this action, including in the event the action has not stayed, Twitter fails or refuses to comply with its obligations under the merger agreement, or if the transaction contemplated thereby otherwise fails to close." That's what he said.

0:39:09 Thomas: Yeah.

0:40:41 Thomas: Case

0:40:42 Andrew: He said, OK, happy to go ahead if I can get all the financing, which remember, that's why we did three episodes on.

0:40:42 Thomas: Closed, Andrew was wrong. That was a big effing deal, yeah. Is

0:40:52 Andrew: Yeah, it's a big, big deal. What's the status of the financing? All of his gap financing has has expired. And you are left with Elon Musk needing to come up with in excess of $30 billion on his own, plus an additional $13 billion. It's $44 billion total at $54.20 a share of Twitter. To And there is absolutely no indication that he can do that. Stock in August did a three-for-one stock split. What happens And when you have a stock split is you get more of those shares and the price comes down accordingly. So it's now trading at about $250 a share. That's about $750 a share based on the original deal, right? Because it's split three for one.

0:41:38 Andrew: Remember that it was over $1,000 a share when the deal entered was and when the financing was secured. Engaging in a stock split makes the price more volatile, right? Because overall price comes down, more individual investors can participate, and so the price can fluctuate widely, widely.

0:41:56 Thomas: That true?

0:41:57 Andrew: Like, Google, for example, did a, like, I don't know, a hundred to one. They, they did the biggest stock split I've ever seen because Google stock was trading at like sixteen thousand dollars a share. And yeah and I think they did a hundred to one, it was a huge split in order to bring the price down to the triple digits so that smaller investors could say, "Oh, yeah, well, to buy, I'm going a share of Google now," instead of, "I'll be invested in a mutual fund where I have one thousandth of one percent of a share." So Tesla shares are down to two hundred fifty dollars a share, that's still at a level. Remember the the sort of the drop dead was was below seven hundred a share, which would be what, you $235,000. And addition to that, there are, as we have talked about in our prior shows, requirements as the majority shareholder and as a member of the board of directors of Tesla that you can only pledge so much of your shares as collateral. You can only sell so much. Because large force block sales of shares drives down the price, right?

0:42:06 Thomas: Right right yeah yeah

0:42:58 Andrew: And that runs contrary to your fiduciary duties to the rest of the board and to the shareholders to, you not tank the stock price of your own company. Know that Elon Musk is a guy who's full of shit all the time. That's an important lesson from the last three episodes that we did on this. This is very clearly a stunt to avoid a deposition. He has reserved all of his defenses, including saying that didn't abide by the terms of the agreement. He's now said a position that is not materially different from just claiming that you're not liable in a case, right, which is we're going to proceed with all of our obligations under the merger agreement. Great, provided we get the funding. Well, was always the problem in the first place. So, you in response, Twitter said publicly, We received the letter from the Musk parties, which they have filed with the SEC. The intention of the company is to close the transaction at $54.20 per share.

0:43:11 Thomas: Yeah

0:43:58 Andrew: I will point out, again, as we suggested earlier, during the pendency of the litigation, Musk made multiple offers at a significantly lower price for Twitter. And Twitter's uh position is, uh, no, like, you're either gonna buy us for 54 20 a share, that's the full $44 billion dollars uh, or we're gonna litigate and we're uh, you get damages from you, and it's gonna be great. So so so that's that's where we stand. This, in my view, does not materially change the position at all, except that it indicates to us that Elon Musk is well aware that he's cruising for a bruising in the Delaware lawsuit. But we knew that already. His position's been indefensible from the start. Will believe it when I see it. I don't think Elon Musk has the ability, has the liquid assets to be able to finance this deal.

And I think the uh ancillary funding has fallen through, so if it turns out he's able to scrape it all together, um, that that still won't be an Andrew Was Wrong. Um, it's, I, I continue to hope that that won't be the case, you know, because I, I don't think we need an entitled man baby to, you know, uh, take over the nation's, largest the world's largest social media platform, uh, but you know, but that's that's independent of our analysis. You, our, know, that's what we have. Elon Musk wrote a letter, that's

0:44:18 Thomas: Invite your friends big

0:45:10 Andrew: All that happened. Um,

0:45:12 Thomas: News, this just in. So, okay, he wrote a letter, doesn't gotcha. All right, well, what's the next thing we're looking for then?

0:45:18 Andrew: Yeah, the next things that we're working on are uh filings with the court or the the SEC regarding the status of financing? Any kind of public statements from both Musk and Twitter, know, because there's a case going on here. And so Twitter is going to ask for real assurances. I mean, think about this. We've talked about a lot of litigation, right. You might want to compare this to, don't the Alex Jones litigation, investigation. Can look at this and go, "Yeah, Elon Musk writes a lot of stupid letters." Twitter knows that, right? And Twitter is not happy with, "Oh, sure, write a letter. Yeah, no, we don't need to depose you anymore, let's just go right ahead and go back to closing." They are going to demand specific protections. And so those will have to be filed as amendments with the SEC, just like this letter, because they're sort of part of the ongoing disclosures that can affect the trading of publicly traded instruments, particularly Tesla and Twitter stock.

0:46:16 Andrew: So look for more SEC filings, look for court filings. Look for joint statements between Musk and Twitter, and or look for the Delaware Chancery Court to say, either there's some agreement here by and between the parties to stay proceedings or we're going to go forward and we're going you to, you take Musk's deposition, which, whew, yeah, could have cameras I in that room. A That lot of fun to watch. All right, well, Thomas, it looks like we're not going to get to what I had pegged as the main segment of this show. Um, I feel like we've been laser focused uh the past couple of weeks despite being uh, on vacation, and, know, uh, this just required a little deeper dive on on everything than maybe I had anticipated. Um, I want to tell you, I think, think that the amicus brief filed by The Onion in the Supreme Court with respect to a decision by the Sixth Circuit in a case called Novak versus City of Parma is worth reading. Everybody should read it. It's hilarious.

It is, it's the best amicus grief ever filed. And of course it's the best amicus brief ever found, you know, written by The Onion. It is, the reason I had a larger segment kind of put together is because I think it is important for us as folks on the left, as people who are fighting the tide of fascism, to point out that that the primary tool that historical fascists have used is turning on the press, right? And trying to eviscerate the public standards that protect freedom of the press. And you saw Donald Trump do that nonstop throughout his presidency. You see Clarence Thomas saying, "Well, I think we ought to revisit New York Times v. Sullivan, make it easier for public figures to sue newspaper reporters for defamation." Donald Trump has just sued CNN in the most ridiculous lawsuit I've seen this week out of Donald Trump.

0:46:37 Thomas: Yeah right yeah

0:48:19 Andrew: But alleging defamation for CNN for using the phrase "the big lie" to describe his big lie. And if you, you think I'm being facetious about that, um, allow me to quote directly from the opinion, uh, this is paragraphs uh, uh, 38 through 41 on page 20. "CNN has published and broadcast the term 'the big lie' in relation to the plaintiff repeatedly," plaintiff being Donald Trump, "both in articles on CNN.com as well as in broadcast on its news channel. CNN is acknowledged that the term the the big lie is a direct reference to Adolf Hitler and Nazism, and uses the term in relation to the plaintiff to create a false and incendiary association between the plaintiff and Hitler." And then, "These defamatory statements which associate the plaintiff's character with that of Hitler are reasonably understood to be statements of fact as opposed to hyperbole or mere opinion regarding the plaintiff, and were reasonably understood by leaders and viewers to be statements of fact and not hyperbole or mere opinion."

0:49:14 Andrew: Readers and viewers understood that the plaintiff would be Hitler-like in any future political role? Yes! You're CNN, the response is, be less like Hitler if you don't want us to compare you to Hitler. Is what fascists do. Want to bring a case for defamation against CNN for saying you have a president who has mobilized people to believe a thing that is false when the former president has mobilized people to believe the thing that's false.

0:49:41 Thomas: Is it the second best amicus brief that we, is it better than ours is what I'm asking. It sounds like it's pretty damn good.

0:49:49 Andrew: I have to say, like, if our amicus brief had included... I'm have read some of this. If our amicus brief had excluded tres stultus es, you are dumb. These three Latin words have been the Onion's motto and guiding light since it was founded in 1988 as America's finest news source, leading its writers towards the paper's singular purpose of pointing out that its readers are deeply gullible people. It goes through and says, the Onion motto is central to this brief for two important reasons. First, it's Latin, and the Onion knows that the federal judiciary is staffed entirely by Latin dorks. They quote Catullus in the original Latin in Chambers. Sweetly whisper They stare decisis into their spouse's ears. Right. It It's goes on in this in this vein. So, you know, pretty good. I kind of wish we'd said that.

0:50:37 Thomas: All right, well that's amazing, it's so good, Andrew. I think I may try to read a legal brief, I do it, I may do it for the Onion, because, you know what, the Onion's earned it over the years. The Onion has been undefeated in terms of comedy. I mean, it's just so good.

0:50:52 Andrew: Have, and this is an important case, so I did, I'm gonna try and uh and break it down on a future episode. But but you should read it, and this assert petition, right? We have to, the Onion has to, the the parties involved here have to convince the Supreme Court to take it, and then convince the Supreme Court to do the right thing. So, uh, this is important, we will cover it, but you know, we just can't cover it today.

0:51:16 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:51:22 Thomas: And now it's time for T3VE. This is question, I don't know, I want to say four on the new book. Really interesting, I'm enjoying it. They're written completely differently. I think I'm two for three on this new book, right?

0:51:33 Andrew: I think that's right, and Thomas, a woman left a will which devised the residue of her estate to her two doctors in equal shares. The will has been probated. The woman's evening doctor sold his share to the morning doctor. Okay, so those are the doctors, morning doctor and evening doctor. After the sale, A, the evening doctor holds the property in fee simple. B, the morning doctor holds C, the two doctors hold as joint tenants with right of survivorship, or D, the morning doctor holds the property in fee simple.

0:51:49 Thomas: Geez.

0:52:02 Thomas: Vitale.

0:52:13 Thomas: There's whole lot of terminology in this one that I'm not sure I understand. I'll have to guess at the residue of her estate. That's an interesting term. I love it. Actually. I wish that was literal. Like it was just like, ah, there was a bit of a residue on my estate. It's just, I left it out in the sun or something. And there's just a little bit bit of residue

0:52:26 Andrew: The Stickiest parts of your estate, yeah.

0:52:31 Thomas: Just gonna give the doctors that, um, no, I'm sure this means something, like whatever's left over after something, we'll see. This the will has been probated, don't entirely know what that entails. The woman's evening doctor sold his share to the morning doctor. After the sale, the evening doctor holds the property in fee simple. What, morning doctor holds the property in fee tail. No idea. The two doctors hold as joint tenants with right of survivorship. Wow, that's interesting. D, the morning doctor holds the poverty in fee simple. This is bizarre. This is just one of those, throw your hands in the air, throw a dart, just take a guess. It's, it's, uh, I'm curious to learn what a lot of this means when we get to answer time. I look, the evening doctor sold his share to the morning doctor.

0:53:17 Thomas: It feels impossible then that A, the Evening Doctor holds the property in fee simple, could be true. Unless residue of the estate is the opposite of what you would think it is. Because, yeah, I mean, I can't see how A would be it, because the Evening Doctor sold his share to the Morning Doctor. So it'd be weird if the Evening Doctor still holds the property and fee simple after the sale. Seems impossible. So eliminating A. B, the morning doctor holds the property in fee tail. That's very plausible, both because the morning doctor purchased the share of the evening doctor and because I have no idea what fee tail means. So that means it's very possible. C, the two doctors hold as joint tenants with right of survivorship. That just sounds like a sitcom. Like, the woman left the estate to the morning doctor and the evening director, and naturally they have to be completely conflicting personalities personalities, but they have to live in the estate together now.

0:54:04 Thomas: And they have just joint tenants with right of survivorship. So they're also trying to kill each other, I think, thing. For So C is just the sitcom answer. I C makes a whole lot of sense, especially because, again, the evening doctor sold his share to the morning doctor. So unless something really weird is going on with the terms in the original question, A and C just seem seem outright stupid, but we'll see. D, the morning doctor holds the property in fee simple. Okay. So that, to me, that, at least for, with what I know, B and D seem like the clear choices here. So I'm between B and D. Okay. The residue of her estate to her two doctors and equal shares, the will has been probated. I don't know if that means like it's all been doled out, I think maybe or something. I actually don't remember specifically what that means. The So it's maybe the woman's like, hey, I love these, both my doctors, morning doctor, evening doctor, you're both part of my balanced breakfast of doctors.

0:54:56 Thomas: No, that would bias toward the morning doctor. You're both a part of the completeness of doctors, I want to leave you, I assume whatever's left after everything else has been doled out maybe, or after maybe debts have been paid, I don't know, I'm not something, the residue of the estate. And then the, so the evening doctor's like, this is garbage, I don't want, the evening doctor's like, I've never liked this, this woman's estate here, morning doctor, you take it. So sold, sold the share, so would, so fee tail, I don't know what fee tail means in, I also, I know enough to know that D, in fee simple means you just own the whole damn thing, like it's just yours, I think. And And with no caveats, no anything. So I guess the question is, is there anything left that's like, are there any sticks that anyone else holds? I think that's, yeah, I think I can maybe look at it like that. D would be true if there's no one else holds any sticks.

0:55:43 Thomas: The morning doctor has every stick, just piles of sticks. Or B, if, because I don't know what infitale means, I could at least say, if anyone holds any sticks, then I would go with B, just because not D. D. So the fact that it has been probated, I think means it's all been settled maybe. And uh, then the, when the, he sold his share, I actually think I'm going to go with D, and between B and D, I, I, don't see how anyone still has any sticks that I know of. So I think the morning doctor just, uh, oh wait, it doesn't even say the woman left a will. Is she dead? Actually, I'm not sure. Left a Will, if she left it, I assume that means she died. Okay, so yeah, I'm gonna go with D.

0:56:17 Andrew: All 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.

0:56:35 Clip: And thank you, Let's go!

0:56:37 Thomas: Now it's time to thank our new patrons at patreon.com/law. Enjoying the goodies, by the way, enjoying in a bonus Q&A, since uh we couldn't do the live one because Andrew's, as previously mentioned, on a boat. So, uh, Andrew did very a kind thing for to our fine listeners, for our our fine patrons. He recorded a solo Q&A kind of picking up leftover questions that we hadn't gotten to, because there's a billion of them. We only get to like 5% of questions in any given one. So, If you'd like to hear that kind of bonus Q&H for this month, hop on patreon.com/law. Really cool of you to do that, Andrew, while you were on vacation. The patrons and I appreciate it. So that's another perk. And let's read off the new patrons who are enjoying that, probably, as we speak.

0:57:17 Andrew: I I I wanna concede I did not get to all the questions that I had picked for Myself to read, so, uh,

0:57:22 Thomas: Sounds Right, so I'll start us out, thank you To Max Parke, Mo Centerlink Stories Podcast, if we want to fix the Australian welfare system, we, we need to talk about it, find us on Spotify, and uh, it cuts off.

0:57:37 Thomas: But that's okay, that's cool, Centerlink Stories Podcast, sounds like a cool thing, Erica Davis, Eli Foxx, Daniel Moloney, Micah Maliskas, Mandy Wright, and Joseph Hoff. Your turn, Andrew.

0:57:50 Andrew: And A Big thank you to Colonnade P, Judith J. Grossbier, Kelly Taylor, Eric Singer, Jason, Jason Fehlauer, Cannon Matthews, and and Cannon adds non-judge, non-FSW, nice.

0:58:04 Thomas: Wow, you're really making FSW stick.

0:58:07 Andrew: Dunstan Orchard, and Marck, and that's M-A-R-C-K for our unique Mark. Thank you all so much, again, you get a shout out, uh, head on over patreon.com slash, well, give us a buck and sign up at any level, give us literally a nickel, please don't give us an echo, um, and we will, read your name out, no, no, uh, matter, uh, no matter what it says, within reason.

0:58:28 Thomas: All right, that's our show. Thanks so much for listening. We've got a lot to get to next time. And remember, part two of Citizens United coming at you next episode. Maybe get that a little extra, extra early for patrons because we love patrons so much. So we'll see you then.

0:58:34 Andrew: Love It

0:58:42 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.

0:59:15 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.