OA641: Massive Smocking Gun in Newly Revealed Eastman Docs!

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 641. I'm Thomas. That's Andrew Torres. And I see a little bit of smoke around you, Andrew.

0:01:26 Andrew: I'm so excited, Thomas. You have not asked how I am. How are you?

0:01:30 Thomas: Sorry, Smock. I'm good. How are you, my friend?

0:01:34 Andrew: I am smokingly fantastic, Thomas!

0:01:38 Thomas: A great chance to do the 1990s mask reference. Smoking! The things that were like unbelievably popular that you try to explain it to, I don't know, a Gen Z or whatever it would be now.

0:01:41 Andrew: Right, yeah. Smokin'! Was my Jim Carrey. To either our children or my young associate, yeah, exactly.

0:01:56 Thomas: Yeah, I would have to show the kids like now for them to think it was funny. Cause if they're like, I don't know at all big, you'd just be like, yeah. It's funny. Cause he's a weird guy and he does things really weirdly in a funny way. I love Jim Carrey, but it's hard to explain. You you had to be there anyway, smoking, smoking gun. I'm excited to get ahold of this story. And this is a, seems big. There's a lot of caps lock in the spreadsheet which I know means big things. Before we get started though, Andrew, a little announcement about Law'd Awful, not movies, lot awful what? What is it?

0:02:02 Andrew: Uh, Yeah.

0:02:28 Andrew: We're A Awful podcasts. I, I have to thank, uh, Miss Ashley for this. Um, she discovered that, uh, the losingest loser of all time for a lawyer, right? Like, that you know, there are, there are other, I think, bigger losers in the history of humanity, but I, when it comes to losing, it's hard to do better than Norm Pattis has a podcast. Has 80 episodes of this podcast and has an hour-long episode devoted to how he didn't really lose that Alex Jones case, that seems so amazing.

0:02:56 Thomas: Wow.

0:03:05 Andrew: To me, yeah, meant to do that, so

0:03:04 Thomas: He meant to, he meant Wow. So we're going to do a Law'd Awful Podcasts.

0:03:13 Andrew: Podcast, there we go.

0:03:14 Thomas: Looking forward to that. Did you think anyone's going to help us with that at all? Could

0:03:16 Andrew: Oh, gosh, I mean, maybe somebody who's been live tweeting the entire Alex Jones trial the whole time? I don't know, we'd have to, we'd yeah, I mean, we'd have to, somebody with amazing expertise to make that work, so

0:03:25 Thomas: Alex Jones himself? Looking forward to that, so that's another reason, great reason to be a patron, patreon.com/law, and by the way, ad-free episodes. Uh so two great reasons plus Plus all the bonus thingies in the early stuff. All right. I snuck in a patron plug here, Andrew, but it's because of Law'd Awful Podcast. Looking forward to it. Going to be fun. Coming out soon. And with that said, I think that's all the announcements. So I'm excited to get to today's show.

0:03:54 Andrew: Yeah, let's dig into it.

0:04:01 Thomas: Did you see the tweet that went pretty viral? The application for the student loan forgiveness has gone up. And there's a tweet that went viral that was like, that application was so easy. I'm not sure I might have been getting scammed or whatever, which is good. I mean, things are going well. They've made it simple. You know, they're doing real good here. This student loan forgiveness program. However, are we going to rain on anyone's parade? I think there's a challenge in the shadow docket. So I don't know if that means like Sauron is challenging it or what, but I'm, I'm worried. Same thing.

0:04:28 Andrew: Sauron Republicans. I mean, it's hard to tell the difference. But yes, know, as we have detailed since Biden put this plan into action, Republicans are attempting every possible move to derail it from convincing state legislatures that they should tax this loan forgiveness right so you should really be mad at Biden when your Republican state legislatures have moved to uh have you pay despite the fact that you will pay no federal income tax on the loan forgiveness I should be but a segment you of our audience will blame Joe Biden for this

0:04:31 Thomas: Yeah. Right. We covered that.

0:04:55 Thomas: Yeah, yeah. That should be the giveaway. Yeah. First my crudite, then my student loan taxes. Got Joe Biden to thank for this.

0:05:03 Andrew: Yeah. First, they came for The celery. Yeah. As you pointed out, the program, website is already up. They launched a beta over the weekend to kind of test it out. And 8 million people signed up. Millions more have signed up since the website kind of officially went live on Monday. And uh, loans are set to be forgiven, uh, the program officially begins this Sunday, September 23rd. So Republicans want to do everything in in their power to stop it. They have filed lawsuits, they've lost at every level, and they are now pending before the Supreme Court, as you said, on the shadow docket, which is a request for injunctive relief, right, to get an injunction to say against the President of the United States to say, no, you can't do this and block it from going into effect while they then tee up their legal arguments about how the president can't doing this.

0:06:00 Andrew: And the problem they have faced at every level from every court is a problem of standing, right? You can't just file a lawsuit and go, I don't think the president could do that, Right. As longstanding listeners know, you have to have an injury and that has to be an injury that the court is capable of addressing. Right.

0:06:19 Thomas: So could you just be like Satan and be like, I don't like when good things happen. I'm aggrieved. Well,

0:06:23 Andrew: That's right. Right, like the Injury here is you're canceling debt that might or might not be repaid to a third-party lender, so you're being deprived of having third-party lender, the, and or maybe the federal government, if it has to reimburse the lenders, get a better rate of return on their loan investment, right? And that's just not a thing, right, like that's not a cognizable injury. Luxury.

0:06:52 Thomas: Can't, so I keep forgetting, I, it's hard to keep this all in my mind, who, when the thing is forgiven, when the debt is forgiven, is there like a bank that's like, oh no, I lose out? Or is it that the federal government, like, actually pays a bank? Or is it just the federal department is the bank? I don't remember which of those is true.

0:07:09 Andrew: It's both, right? There are private loan servicers and they could argue that they're being potentially aggrieved, but remember when they loaned the money, there was a risk that they would not get the money back, right? There are various programs with respect to how unpaid loans get reimbursed from the federal government, and of course there are situations in which the lender is or being reimbursed by the federal government. So it's really complicated, but it's all, you know, an area where there's a bunch of uncertainty already. Right. If they could, if they had concrete injury by any individual loan servicer or by any individual entity of government, they'd have put those plaintiffs forward already.

0:07:49 Thomas: Oh, Yeah, That's a Good point. I guess, I, that's in my mind, I'm wondering why don't they have that. Do you think?

0:07:50 Andrew: Right. Yeah. They don't because of the uncertainty around defaults to begin with, and because the programs that are in place to reimburse lenders when people do default, right? And the government can just say, right, that the HEROES Act allows you to say we are, you going to forgive some or all of a class of debts, right. So the most clever approach, I actually scripted this up and we were going to do it a couple of weeks ago, but the case got dismissed in the day between when I scripted it up and when we were set to, to record, but uh, Republicans got a guy, uh, in Indiana, which again, as you know, Republican governor, Republican state legislature, decided to tax the the benefits because they want to drag down Biden's approval as much as possible.

And this was a guy who, at least as alleged in the complaint, said, look, I am on track to have my my loans forgiven under the prior public loan forgiveness program, and because that's been grandfathered in, that isn't taxed. This executive order makes the changes to that program, accelerates it to the beginning, so I'm going to get my refund four years earlier than I would have under the old program, but it's going to be taxed, so I am being materially injured. You never mind kind of the the curiousness around that that

0:08:02 Thomas: Hmm. Hmm.

0:09:14 Thomas: Actually can't figure out how that works. So he's getting it forgiven earlier. Why does that not offset the fact that he's giving tax?

0:09:18 Andrew: Right, uh, The argument would be that the time value of money of getting it earlier is is less than the amount by which he's going to be taxed And that Would be a factual question. Now, again, you're talking about state income tax, so it Probably isn't Right, Yeah, but but at least hypothetically, you could imagine this being a weird corner case.

0:09:30 Thomas: Oh, OK. Yeah, that's hard to believe. Yeah. Wait a minute. Hold on.

0:09:45 Andrew: This case was dismissed. So,

0:09:46 Thomas: Oh OK. I was gonna say, Does this supersede what he already had? Because wouldn't the obvious argument just be like, oh, well, if this is worse for you, don't do it. Just stick with your old program.

0:09:56 Andrew: The EO accelerates all of and as that. And you point out, he couldn't.

0:09:59 Thomas: So we can't opt out of the new thing.

0:10:02 Andrew: But here's the thing. As soon as that lawsuit was filed, the Biden administration said, oh, well, what we'll do is anybody, if

0:10:02 Thomas: Okay. If you like your doctor, you keep your doctor. Yeah.

0:10:11 Andrew: You like your existing loan reforgiveness, you can keep it. That's exactly right. Right. And I just want to point out, if we had a functioning democracy, these are the kinds of things that would come out in the sausage making of of debate over the legislation. Right. You would bring up somebody with a corner case and you'd be like, really, how many people are there like this? They would say probably not a lot. But what the hell? Let's fix the bill so that people who would get hit with taxation can opt out of having a bonus. Right. And can stay with their old program, never minding the fact that, it's you

0:10:24 Thomas: Sure.

0:10:45 Thomas: It's probably bad faith and they wouldn't do that. But yeah, sure. I like that.

0:10:45 Andrew: Right. Yeah. But yeah.

0:10:49 Thomas: You can just be calls bluff. Oh, okay. Yeah, sure, You don't want this benefit. Yeah, whatever. Love.

0:10:51 Andrew: And Yep. So so they made changes to the EO and the lawsuit got dismissed. In fact, they made changes the day it was filed. So this is an example of the system working, never reminding the fact that that is going to be cited as a as part of, a nefarious plot in 30 seconds Now, now that you don't have a real person with real injury, you are left with a largely discredited doctrine that conservatives hate called taxpayer standing, right, and that is the idea of, well, I pay my taxes.

0:11:01 Thomas: It Yeah. Yeah. Yeah.

0:11:22 Andrew: So I ought to get to say about stuff, right? And you can imagine there is a 70 year uninterrupted history of largely conservative judges going, yeah, this is nonsense, right? This is a way of expanding the reach of the judiciary and we shouldn't do that. But when it comes to expanding the reach of the judiciary in order to engage in conservative activism, all of a sudden the pitch is a little different, right. And so if you don't believe just how naked the appeal is to this court's judicial activism, I'm going to read you pages three to four of the petition that is pending before Amy Coney Barrett, to stay the Biden administration from being able to implement the student loan forgiveness program.

Here is the argument, word for word. I'm omitting some citations and words in the middle, but you have follow along. Link will be in the show notes. I am not making any of this up or exaggerating for effect. Quote, Applicant, those are the Republicans, is aware that the prudential notions of standing are an issue here. Applicant is not insensitive to those concerns. Applicant is aware of the concern that federal courts should not be transformed into

0:11:22 Thomas: Hmm. Yeah. Yeah.

0:12:32 Andrew: Forums for the abstract litigation of questions in which litigants without a concrete stake in the matter press claims that do not discreetly, and by the way, they've spelled that wrong. They've spelled that as, you know, discreet, don't tell anybody about this affair, as

0:12:41 Thomas: Boy. You're Right, they really are pandering to the right wing of the court. Their weird caps too. Yeah.

0:12:49 Andrew: Affect them. Courts should not become a forum to do no more than refight legislative battles. All right. So that's all the lip service to your conservatism. But that's not what's happening here.

0:13:00 Thomas: Well.

0:13:01 Andrew: We are witnessing a gargantuan increase in the national debt accomplished by a complete disregard for limitations on the constitutional spending authority. Applicant and those similarly situated are being asked to assume perhaps over one trillion dollars in debt. The issue is not simply the government has acted unconstitutionally in a way that harms others, but not the applicant itself. To the contrary, because the unlawful step alleged here tramples the constitutional spending power, it harms applicants members as taxpayers. Applicants is aware moreover that it is asking this court to apply a doctrinal framework that, while adopted long ago and still good law, is seldom applied. But all other creative attempts to establish standing have been frustrated by respondents' unilateral changes in the program.

0:13:48 Andrew: Yeah, because it's an executive order, because you block us passing from laws.

0:13:48 Thomas: Unilateral changes in the program. Yeah. Well. The whole thing is an executive order.

0:13:56 Andrew: Doctrine exists that would allow this matter to be heard. It simply cannot be the law that a president can hand out a trillion dollars with impunity. End of, end of real quote. Sorry, I almost clown horned there before the real Supreme Court. That's it. It is basically a naked appeal to the Supreme Court. It that says, hey, we know standing is important. We know you care about that. We know we don't have it. We've tried, but they fixed it.

0:14:22 Thomas: I love that bit. Our plot to just get stan, that didn't work. They called us on that, so help us out here I

0:14:27 Andrew: That. Yeah. So you should just allow us to come up because if you don't, we won't be able to to stop Joe Biden from doing this. That is literally all the petition says, know, when sort of shorn of its legalese. And it could not more vividly illustrate just how ridiculously biased this court is. So as of the time of recording, this is before the Supreme Court. The Biden administration has not yet filed their reply, their opposition, which I imagine will come sometime as we're recording. And we'll see how Justice Barrett and or the rest of the court act. If they deny the relief, will be sort of the bare minimum of what they ought to do. But it wouldn't surprise me, right, sort of naked appeal of, hey, don't you hate Democrats? You've got five and a half members of the court that are like, yeah, I do hate Democrats.

0:15:18 Andrew: So see. And again, just remember, like, if that gets blocked, right? There will be a segment of our audience and our audience's friends and colleagues who are going going to say, see, I told you, Joe Biden can't get anything done, um, and it really is, you on you, uh, as listeners, to point out, um, this is a deliberate Republican ploy being pitched to a Republican court, uh, and you if can't see that the solution to that is to diminish the political power of Republicans, um, we can't help you. I guess I

0:15:48 Thomas: Know it's hard. I, in listening to, um, The Wilderness podcast, which is actually, uh, one of my favorite, probably my favorite, like Pod Save America type podcast. Yes. It's a lot about doing kind of focus groups on voters in key states and trying to look at what really appeals to them. It's an important reminder that I think a lot of times the person you and I have in mind, Andrew, that we're mentally arguing against is some asshole leftist on Twitter who's not actually a significant part of anything.

You know, it's more about people who are kind, just not very political or not very tuned in, who just, honestly, I largely blame the media, because Joe Biden is covered so horribly that they have the feeling and the belief that Biden's done nothing for them and has not tried to do anything for them. So, you know, I think it's, it is important to try to get out there, not just against the, you, you know, the people you and I might be arguing with on Twitter, that's probably not the people we need to, you know? It's the people who aren't able to follow this. They don't have an account on Twitter for politics, It you is conversations. I don't know what the solution is, but it's a good reminder that got to shift our focus a little bit.

0:16:19 Andrew: Agree Yeah. I I think that's right. I think that's really insightful in the sense that they're, it seems to me they're they're kind of two sort of long-standing, well-intentioned journalistic tropes, you tendencies, habits that are, you know, that have just sort of become weaponized by the other side, um, and the first is, look, like I do not want to go back to, you Walter Cronkite saying, you know, and that's the way it is.

0:17:20 Thomas: Yeah.

0:17:20 Andrew: Right, like, no, like, we do not get our news sources from people who are responsible for telling us, and here's yet another good thing the Biden administration did for you today, right, it's not their job to cheerlead for the incumbent administration. So that, that's kind of point one, and point two, right, similarly, like for our nation's history, it was valid to judge a presidential administration by its ability to accomplish its goals, right? That's like not a controversial statement it

0:17:29 Thomas: Yeah, yeah, yeah. Yeah, yeah. Yeah, it should be what we could do. It should be. But our system has broken, been broken purposefully by well, by by the framers, partially and then exploited by Republicans. And so I'm sorry, carry on.

0:17:52 Andrew: That's right, right. And yeah. No. No, no, that's to please you, senator, please proceed.

0:18:03 Thomas: Well, no, I think, yeah, that's what you're getting at. Like the fact that, because president isn't able to just snap his fingers and do what he wants to achieve, it's this unfair standard where the president is judged by how, whether or not he can somehow, I don't know, walk on water and do things that he can't actually do. It's really, it's really tough, I think you would have finished the thought better, so I'm glad, I'm mad that you made me do it. No.

0:18:22 Andrew: Yeah. I'm I apologize for that. I wanted, I wanted to hear your voice on that. I, I, I would just say, and that has pushed us into a situation, right, the sort of post, uh, George W. Bush scenario, scenario in which Mitch McConnell said, we're going to make Barack Obama a one-term president by obstructing everything he could possibly do. And that has led to sort of the current Obama-Trump-Biden era in which the bulk of what a president is doing now is via executive order. If you start it over, I don't think either political party would want that. I don't t think any rational person would say, you know, I definitely want a president to have to come in and govern by executive order, which could be overturned the second he leaves office. Who in their right mind would want that, right? But that's what we're left with. So top line, Joe Biden has delivered on a significant, but listen to our episode on the Biden student relief package. The process went through an approximation of what legislation would go through, right, Right. Which is you. Oh, hey.

Oh we found this kind of weird corner case that might hurt somebody. Let's fix this. Right. Let's let's tweak it a little bit. And now there is just a political last ditch effort to appeal to a right wing Supreme Court to block this because otherwise, you know, government might do things to help people. And

0:19:03 Thomas: Yeah. Can't

0:19:49 Andrew: And it really is that simple. Yep.

0:19:51 Thomas: Have that it's just incredible. The other component of it is how much, I, you know, I know we've all seen the memes on this, but it's just worth repeating how little anyone seems to care about these concerns when we're giving giant tax breaks to corporations and rich people. Somehow that's not like this, you know, oh, the debt we're saddled with as a taxpayer. And then when some very relatively minor relief is given to people who most need it, all of a sudden we can't, the country can't bear this. We're going to, there's no way there's not enough money in the world for this. It's just so, it's incredible that that argument still works on conservatives, but I know it does, because, like, I know those people, it's frustrating, I think, calling out the, how little money this is relative to things that have been given, especially during COVID, just barrels and barrels of money given to businesses and corporations, which, you know, probably was a good idea, but like, let's compare apples to apples and show, like yeah

0:20:21 Andrew: Yep, the child tax credit was forced to expire by Republicans. Yep. Couldn't have said it better myself.

0:20:46 Thomas: Yeah Why don't we take a little quick break before getting to our smocking gun segment, which I am excited to get to.

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0:22:40 Thomas: You know, I plug one of these each and every time. I'm going to plug a recent Feedback Friday because there's a really interesting scenario on. The question is, what do you do when the very married pastor you've, you've know, your whole life as a pillar of the church and community propositions you on Grindr? Yeah, that might require some feedback. So that's on the latest Feedback Friday, that's a fun one. Jordan is conducting an interview or giving advice to a listener who just met a priest on Grinder, for example. You'll find something useful that you can apply to your own life in every single episode of The Jordan Harbinger Show. That could mean learning how to ask for advice the right way, or could just be discovering a slight mindset tweak that changes how you see. So search for The Jordan Harbinger Show, that's H-A-R-B as in boy, I-N as in Nancy, G-E-R on Apple Podcasts, Spotify, or wherever you listen to podcasts.

0:23:37 Thomas: All right, Andrew, I've got my smocking jacket on.

0:23:40 Andrew: Love it.

0:23:42 Thomas: Tell us about the smocking gun.

0:23:44 Andrew: Kind of when I was initially writing this segment, I was going to do the like, hey, remember John Eastman, Pepperidge Farm remembers. Right. But he really is the gift that keeps on giving. I'm going to elide very quickly over the fact that Eastman, as did a lot of the January 6th insurrectionists, looked at Judge Eileen Cannon, FSW, and her ridiculous crafting of bizarre relief to Donald Trump and said, oh, hey, I want in on that. And judges around the country were like, hey, we're not Federalist Society weirdos and hacks that are beholden to, you know, the former president. By the way, you're not the former president. We don't give a shit about you and have declined to extend it to an individual. And this includes other Trump judges to extend kind of the insane ruling to non-Trump, to non individuals named Trump.

0:23:50 Thomas: Yeah.

0:24:39 Andrew: So here's what happened. John Eastman said they executed a search warrant and they took my phone and I want a rule 41G motion to return my phone to me. Um, why? Uh, because they violated my First Amendment rights because, um, this is an uh infringement on my right to political activity because they now have access to private emails in which I talk about how much I love Donald Trump. That was seriously an argument that was made in print.

0:24:48 Thomas: Wow.

0:25:03 Thomas: Why hasn't every drug dealer thought of that argument? Hey, you have my phone that I probably doing all the drug deals on, but, you know, also I have a right to free speech. So hand it over.

0:25:06 Andrew: Yeah. Yep. Free speech. Uh, that it was seized in violation of the Fourth and Fifth Amendments that, they violated that, his biometric data, you know, to have him look at the phone to open it up to, download all the stuff off of it.

0:25:24 Thomas: That is not time for it now, but that is an interesting issue that

0:25:28 Andrew: It truly is, but it misses the point that a Rule 41G for return of property is not a motion in limine, right? In other words, if you want to argue, hey, you know, a suppression motion, you want to say, You've illegally taken my stuff or illegally gotten my confession, you can't use it at trial. Fine, litigate.

0:25:37 Thomas: Hmm. Oh, right, right. Right. Yeah. We're not at trial, though. Is that the point here?

0:25:49 Andrew: He has not even been indicted, right? This is just a search warrant.

0:25:51 Thomas: Right. This seems to be a theme among Trump and Trump related people. Like just as they gather evidence, they start filing stuff that would only make sense if we were like in the middle of the O.J. Simpson trial with them.

0:25:54 Andrew: Yeah. Yeah. If you were terrified that you're about to be indicted, yeah, exactly. Um, and so yeah, and so the court was like, "Like, yeah, before we can even talk about Rule 41G, you need to establish that the injury is being deprived of the property, right?" Not that it was improperly seized in the first place. And so he did make one argument on that. He said, look, have attorney-client privilege documents on my phone, which, again, can be solved with, and they did employ a team Right, right, and the court notes, uh, Eastman has not identified any information for which he claims a privilege.

Second, uh, with respect to the case that he cites, there is a timing difference. In the prior case, the government kept, uh, the... petitioner there, Harbor Health Care, they kept Harbor's privileged documents for over four years. Here, the government sees the phone approximately three months ago. Eastman asserts that he has not been indicted, and and may may never be. "Nevertheless, the court finds that his motion on this ground is premature at this time. And on these facts, Eastman fails to show an irreparable injury." So, no, you're not getting your phone back,

0:26:20 Thomas: Right. Yeah. A taint team.

0:27:06 Thomas: Hmm.

0:27:06 Andrew: And you may well be indicted.

0:27:09 Thomas: You know, I was just thinking there's been a lot getting of deployed lately. And I'm just wondering if there's any endeavor in the Biden administration to start, know, revolutionizing the taint team van fleet and making them green, you like electric. They've done that with the post post office, right? With the, they, they tried to, I think conservative stopped. I'm just saying, if we're trying to fix the environment with all the taint teaming that's happening lately, I think, you know, get it switch.

0:27:22 Andrew: I like it.

0:27:34 Andrew: Cram us all into a Prius. Yeah, it

0:27:35 Thomas: Yeah. Switching from the gas guzzling eighties taint team van thing to an electric van, I think we'll save the entire Amazon rainforest. I think

0:27:45 Andrew: May well be possible and let's be clear here, um, John Eastman at some point will be indicted, right? I mean, he's just very clearly has committed crimes, uh

0:27:53 Thomas: It's just very indictable. Just look at his face.

0:27:57 Andrew: But Eastman is also the key, I mean, he was in the room where he was present with Donald Trump. He was the architect, or at least like one of the architects. Right. Like we learned a lot about Ken Cheeseman from the one six committee.

0:28:13 Thomas: Wait, not cheese, bro.

0:28:14 Andrew: Oh, it was cheeseburger.

0:28:15 Thomas: Oh, okay. I was going to say, if there's a cheeseman in a cheese, bro, I'm about to lose my mind. Okay.

0:28:16 Andrew: Yeah. Will. Because that joke is so good. We will leave in my mistake. Right. You know, we learned we learned about cheese, bro, from the 16 committee. But nevertheless, right, John Eastman is the guy who put in print the, hey, we could go around Mike Pence, we'll get somebody, I don't know, maybe Ted Cruz to object, right? Like, I mean, it's just gift that keeps on giving. And indeed, when we get to the bottom of this segment, we have I think is the last piece of the puzzle to indict Donald Trump. It truly is a smocking gun. And and I don't say that lightly, you know, as as you well know. So just to bring everybody up to speed, court, the California court has proceeded in three stages. Right. And we've covered all three of those stages.

0:29:03 Thomas: Wait, California corn.

0:29:04 Andrew: Yeah. Remember, He Went to a California court as the plaintiff to get an injunction to block his employer from turning over records to the 1-6 committee. And so the very first review was to determine whether the documents sent that week before the one six insurrection were protected by attorney client privilege. And that was the first time that the court held. These are crime fraud exceptions. Right. Like, and put into print that under the civil standards, right, that it has been established by the one six committee that more likely than not, John Eastman and Donald Trump have violated 18 USC 371 and 18 USC 1512 C2, that they have committed crimes.

0:29:05 Thomas: Oh yeah.

0:29:56 Andrew: And that was the basis for the production of that first tranche of documents to the 1-6 committee. We went through those documents. They are a treasure trove of, you who's who that helped guide the committee in public hearings. Hearings. Then there was a second group, right? So on May 2nd, Eastman produced a privilege log that had 2,000 entries on it. The select committee said, agreed to defer review of 576 documents. We have about 800 that, okay, they're clearly attorney client privilege. And then we We have 599, actually, that are listed as privileged, but we think no privilege applies. And then the court went through a review. And we'd like you, the court, to review those 600 documents and order Eastman to turn over the ones that aren't really privileged.

0:30:51 Andrew: And the court did that. They required the production of 159 additional documents. And again, we covered that. Those went to the special committee. And you might have forgotten about those 576 documents that they agreed to just defer, but the court didn't.

0:31:05 Thomas: And Andrew Torres didn't, he sleeps with them at night. Cozy, cozy little binder he's made.

0:31:08 Andrew: That's true. They're all redacted, unfortunately, but So on September 14th, the select committee, the one six committee, went back and said, hey, those 576, we want, you know, these are, you know, earlier kind, pre and post election, but, you know, sort of the lower priority stuff, we'd like you to take a look at that now. And again, the court went through and reviewed those. And of those 576 documents, ordered the disclosure of another 33, right? So again, lower priority. We're going to talk about why almost all of them remained privileged in a minute. But of those 33, eight are pretty important. And one is the proverbial smoking gun. So let's go through. Through Eastman claimed over those 562 documents, for 561 of them he said they are attorney client work product.

0:32:03 Andrew: So to be attorney client work product, something must be prepared in anticipation of litigation or for trial, and it must be repaired by or for another party, or by or for that party's representative. Okay, so in other words, I'm putting together all of my stuff, stuff, anticipating that that we are going to trial, uh, and I am doing it, uh, on behalf of my client. That's what makes it attorney work product, right? So I could, I could write, you know, I, I have Morgan research the landscape. I say, look, um, somebody has threatened, let's say we're talking about an Opening Arguments lawsuit, somebody's threatened, you know, they sent us a cease and desist, they say, if you don't take down this episode of Opening Arguments, we're going to sue you for defamation. And I say, OK, offices of P.

0:32:49 Andrew: Andrew Torres are going to defend Opening Arguments. We probably would bring in outside counsel because we're not idiots. But, first you thing I would do is have Morgan write us a memo that says, hey, what's the law of defamation in X state? And she would go and look up the law and lookup the relevant case citations and kind of give us a high level. Hey, this is the law on defamation in California, and here are the touchstones, here's your right to bring an anti-slap motion, you all of that stuff, right? That memo is work product I

0:33:17 Thomas: And in that memo, we'dbe like, also, can you just write down, like how would we overthrow government if we're going to do it? No, we'll get there.

0:33:23 Andrew: Well that's the thing, right, that, that, that memo ist attorney work product. If in the middle of the memo, and, you know, who knows, we're all, we're offering, if in the middle of the memo Morgan writes, by the way, uh, I would really like to come on Law and Awful Movies at some point, particularly if we're talking about Alex Jones, that portion is not protected by attorney work product,

0:33:32 Thomas: Oh, I thought you were going to say, oh, by the way, another way we could solve this lawsuit matter is just by like murdering the person who filed it.

0:33:49 Andrew: That were in there, I'd have pretty reasonable confidence that she would not.

0:33:53 Thomas: And she's just like, just legal options. I'm just mapping out options.

0:33:58 Andrew: Then what the court would do is redact the portions that are attorney work project and unredact the proportions that are that are murder plots.

0:34:04 Thomas: Unredact the murder plots. But isn't that like a pretty solid analogy for what they're claiming? Because I remember we talked about this. I remember they're like, Like, oh, yeah, the part where, you know, we're planning like a coup and just, you know, general like, oh. I said don't do that. I circled. I said, don't. Do the coup part that I wrote in there.

0:34:06 Andrew: Yes. That's

0:34:23 Thomas: So if she said don t. If she said, hey, just writing in the memo, I, Morgan Stringer, say, don t murder Eli Bosnick, who's suing you. Is that attorney work product.

0:34:21 Andrew: Exactly right, yeah, so you would have a really, really good argument as to whether that falls under the crime fraud exception, right? Like, I I am firmly of the belief, right, that there are, with few exceptions, no magic words in the law, right? So just saying, hey, here would be the hypothetical implications of, you know, murder, well, that in and of itself itself can still be protected. But the question is, you know, once it moves from, right, because we've talked about that, like you want to say, you want To have attorneys free to recommend to their clients, and say, here's what would happen if you did that. And that would be breaking the law, You want that to protect that advice. You don't want to stay, here's how I'm going to to help you break the law, and that can be a tough line to draw, so

0:34:43 Thomas: Mm hmm. Yeah. Yeah. Yeah. Right. But in this case, I feel like it's not. It wasn't that tough, personally.

0:35:17 Andrew: I agree with you. So, so here's the thing, of these 562 documents, the overwhelming majority of them are Eastman's advice with respect to the massively unsuccessful Kraken lawsuits that were brought at the time, so right, he was, as far as I can tell, the point person, uh, coordinating all of the insane nonsense being filed by Sydney Powell and Julie Haller and Howard Kleinhandler and that brigade of idiots, uh, during the time, and, you know, it was kind of the central repository of, um, maybe let's bring a lawsuit here in Michigan, and, you know, have you seen the Antrim County report, and, you know, all that crap, and never minding the fact that that is potentially relevant to the January 6th committee, right, that it is certainly, uh, regurgitating nonsense claims that led to the insurrection, um, an attorney referring their advice on a threatened, pending, future, or existing lawsuit, that that's core attorney work product, right, that's to say, hey, what do you think the likelihood of success is that we have in, you the case in Michigan, right, that's a thing you ought to be able to ask your attorney, and so the overwhelming number of these documents, and you can understand kind of the interplay, like, I don't think the one six committee is disappointed by this result at all, like, all they had to go by was the entry on on the privilege log, and they're like, yeah, look, the fact that you're just claiming this was advice ray Michigan

0:36:24 Thomas: Sure. Right, right, right.

0:36:43 Andrew: Lawsuit, like, no, no, we'd like the judge to look at that, and and in the overwhelming, uh, super majority of cases, the judge looked at it was like, yeah, um, some of these are a close call, it says that uh, in in the order, but I'm going to err on the side of protecting attorney-client privilege for ongoing litigation. But there are exceptions. So let's talk about those exceptions. And like I said, they total 33 different documents.

0:37:00 Thomas: Yeah.

0:37:09 Thomas: Wow. And, thinking logically here that we really shouldn't be surprised or disappointed if you're looking for smoking guns and it's like, well, the percentage of smoking guns among these emails that were about a bunch of other bullshit, there's only 33 smocking guns here. It's like it doesn't matter. You only need the one.

0:37:26 Andrew: Have only found a basement

0:37:28 Thomas: If if you go in my Gmail And there's a million emails of us trying to schedule and stuff and all like that. And there is just nonsense, complete personal stuff that is totally fine. And then there is one email where I am like, oh, also, you know, let's murder Eli on the weekend. It doesn't matter that it is like, well, that was only like 0.1% of my email, you know. It shouldn't be surprising that there is a bunch of other stuff in there.

0:37:28 Andrew: Full of guns.

0:37:47 Andrew: And this is what, six or 7% of the documents, right? Like that's a fairly large, right, Right. That would be the equivalent of tens of thousands of let's murder Eli Bosnick emails to be uncovered. Which Right. I not saying may or may not be present in your inbox.

0:37:52 Thomas: Yeah. Yeah. I am saying don't murder him.

0:38:05 Andrew: Right. So four documents relate to what the court calls the Electoral Count Act plan. Right. That's the subject of Eastman's memo that said, know, let's have Pence unilaterally either throw out or, you know, as they morphed into, well, you call for a delay and we can't certify this right away. And the court says all five of these emails, I'm going to get to how it goes from five to four in a minute, discuss in part actions to support the plan to disrupt the joint session of Congress. Some portion of these emails do discuss litigation strategy, and to that extent, they're created in anticipation of litigation. However, for other portions, the true animating force behind these emails was advancing a political strategy to persuade Vice President Pence to take unilateral action on January 6th. As discussed in the court's prior order, to the extent the plan was intended to proceed without judicial involvement, emails pertaining to the plan were not made in anticipation of litigation.

0:39:01 Andrew: Attorney, because Dr. Eastman also claims attorney-client privilege for one of these documents, we're going to hold off until we see if there's also resolving the privilege claim. But those four documents, very clearly, you have to produce them. There they are, discussing efforts to persuade Pence to throw out electoral votes. That's not anticipation of litigation, that's anticipation of insurrection.

0:39:23 Thomas: Well, and like political advice, now. Yeah, like if, if he's employed as, let's say I'm running for office and, Andrew, I choose you to be my attorney, of course, because I, because I would, and you're helping with legal stuff, I don't know, filings and all that, but I'm also like, hey, what do you think my strategy to rock the vote should be over here, and then you give me advice on that, is that still, still attorney work product because you're kind of working for me?

0:39:26 Andrew: Correct. Yeah.

0:39:52 Andrew: No, it is not. Yeah, no, absolutely not. And, and again, that's the thing we've talked about that, that comes up all the time. Um, you know, I get, no

0:39:53 Thomas: No. Okay. Yeah. I know. I just don't remember all the time.

0:40:00 Andrew: And our listeners haven't all listened to all 641 episodes of Opening Arguments. It's so always good to, uh, to remind them. Um, one of the things that happens all the time is I represent, for example, a client that buys commercial real estate and fast food franchises. And I am often asked to weigh in and help negotiate the deal terms, how right? Much and some of the, you know, non-economic components to it. When I'm drafting the documents, I'm acting as a lawyer, right, and that is his privilege, um, but you if there were to be litigation, you would have an argument that that the part of my email that says, "I think we, we should offer to pay 26 million dollars for this" is not you

0:40:03 Thomas: Yeah, yeah. Oh, wow. Huh? It's that fine grained.

0:40:42 Andrew: It is that fine grain and again, I have litigated that position and and lost in a, um, a mediation, um, but, but it remains a viable argument. So, right, let me be clear again. Don't take legal advice from a podcast. I believe that it remains a valuable argument to be adjudicated on a case by case basis that says, no, a lawyer giving business advice is not giving legal advice. And to the extent that it is extricable, right, that you can pull that out, that extrication ought to be produced to the other side, ought to Be unredacted from the documents. Four So of these very clearly relate to persuading Pence to break the law. Two, in connection with the state Kraken cases, are emails between Eastman and non-attorney consultants and discuss statistical data with no mention of state election litigation.

The remaining document is a report on alleged election irregularities, which the court finds would have been created in substantially similar form without the prospect of litigation. So, in other words, some of the underlying information being circulated here about like, oh, hey, look, here's how they stole a billion votes in Antrim County. Those documents have to be produced. I don't think they're going to be particularly interesting, but we're goingto get to see them.

0:40:43 Thomas: I didn'tt, I didn' realize. Wow. Okay, mm-hmm, mm.

0:41:05 Thomas: Must

0:41:52 Andrew: Four relate to, uh, co-conspirators, right? So they say four documents connect third parties to Dr. Eastman. Similar documents were discussed in the first order, none of which were found to relate to or implicate litigation, they are not protected, the court orders them to be disclosed. So that is, uh, person A says, "Oh, hey, um, you believe crazy things about the election," of the person coordinating our head of the department of crazy is John Eastman. So, John, meet, you know, lunatic, lunatic meet John. Four of those emails are going to be produced, and those might be useful to the One six Committee to the extent that their names, that they haven't heard before. 11 are public documents, um, and so they're not interesting at all. Two are duplicates of previously produced documents that nevertheless found their way on the privilege. And the court's like, well, you should give those over.

0:42:37 Thomas: Be really annoying to, if if you're a taint team member or whatever, to go through all the emails that like re, re, reply all, all re replying, all re like just everything includes everything. I hate how email works that way, especially when you get in like long email chains with multiple people. Sometimes someone replies to like, not everybody in the chain. And then that's brought back in. Must be, I don't know whose job that is, but that sucks. I rate that job. Sorry. Sorry to whoever that is.

0:42:48 Andrew: Right.

0:43:03 Andrew: So noted. One is a redacted document in which it involves discussions between a representative of the Trump administration and Dr. Eastman. They primarily seek legal advice, but some portions discuss only political advice. Accordingly, the court orders this document to be disclosed with redactions. Right.

So that's an example of what I've talked about, where there's some legal advice in there, but the directions are, "OK, cut out the legal advice." But the political advice, which is very likely to be, "Hey, you know, how is this going to be perceived if we do that?" You have to disclose. And then there are eight documents to which the crime fraud exception applies.

And this is really, really critical, and again, the court notes there were 18 others that it thought really hard about releasing, okay, uh but but it felt that it wanted to err on the side of caution, and of the 26 that it might get, it's, you're definitely going to get these eight, and and there's a sort of a sense of, um, is probably going to be enough, right? We'll find out. So, So remember that crime the fraud exception applies when a client consults an attorney for advice that will serve them in the commission of a fraud or crime, and the communications are sufficiently related to and made in furtherance of the crime.

Right. So that's what differentiates, you know, you email me tomorrow and say, "Hey, as my lawyer, you know, if I murder Eli Bosnick, you know, what, what's the implications of that?" Can, I I can tell you that so long as I'm not making it easier for you to murder Eli. Right. Those eight documents, the court found four in which Dr. Eastman and other attorneys suggest that, irrespective of the merits, the primary goal of filing X particular lawsuit is to delay or otherwise disrupt the January 6th vote.

0:44:50 Andrew: That's pretty critical. In one email, for for example, President Trump's attorneys state that, quote, "merely having this case pending in the Supreme Court not ruled on might be enough to delay consideration of Georgia." End of quote.

0:45:05 Thomas: Well, so is that a gray area? I mean, they are, if they're filing a lawsuit, wow.

0:45:09 Andrew: Yeah. If they're filing a lawsuit under the false pretenses of, "I don't care what the results are, I just want to slow this down." One hundred percent. That is not only an abuse of the the judicial process, uh, and disbarable, but that, that is a crime. That is, uh, the crime of obstruction of justice, and possibly other. You, things you cannot, under 18 U.S.C. 371, right, you, you can't conspire to, you unlawfully deprive the United States of a presidential election by means of gumming up the works with lawsuits where you don't care about the outcome. Right. Those are big documents. Gets better or worse.

0:45:45 Thomas: It gets Better. Well, as it's getting better, I think we uh, should pause for a little break, uh with the cliffhanger of how better it gets. All This episode is brought to you by Rocket Money, formerly known as Truebill. You may have heard about it. If you haven't checked it out yet, you need to. Look, here's the thing. Times are a little tough. They've been a little tougher for a few years right now. And if you're looking to save what might be significant money per month, you need to check out Rocket Money. Because you might be wasting money on subscriptions. Everything is a subscription now. Have you noticed that? Basically everything, everything. Software is even a subscription now. If I want to buy a wanna buy like, some sort of audio software now, it, it's all subscription-based somehow. What a world we live in. Back, here's the thing, 80% of people have subscriptions they have forgotten about. Maybe for you, it's an unused Amazon Prime account, a Hulu account that never gets streamed.

0:45:48 Andrew: Yeah, take a quick, quick break.

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0:47:49 Andrew: So the first four were filing lawsuits that we don't care about the outcome? Just file it, slow it down. Four emails demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the January 6th vote. I want to read this to you word for word. And then I'm shocked. I am stunned. And I think it's a reflection of just how bad these documents are that the judge goes on to quote from one of the documents, despite the fact that it is presently marked as privileged and has not been turned over to the January 6th committee. That's an illustration of just how seriously, uh, the the court views this. So, evidence confirms that this effort, and this effort meaning to press false claims in federal court for the purpose of delaying the January 6th vote, a crime, was undertaken in at least one lawsuit filed in Georgia on December 4th, 2020. President Trump and his attorneys alleged in a Georgian state state court action that Fulton County improperly counted a number of votes,

0:47:55 Thomas: Wait

0:48:54 Andrew: Including 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters. You will recognize these numbers and claims as being identical to the Brad Raffensperger call. I insert here, President Trump and his attorneys then decided to contest the state court proceeding in a federal court action and discussed incorporating by reference the voter fraud numbers alleged in the state petition. On December 30th, 2020, Dr. Eastman relayed concerns from President Trump's team, quote, "about including specific numbers in the paragraph dealing with felons, deceased, moved, etc." End of quote.

The attorneys continued to discuss the president's resistance to signing, quote, "when specific numbers were included," as Dr. Eastman explained the next day, and this is, is document 60742, and you can bet as the second this is available, uh, I'm, I'm gonna be all over it, quote, "although the president signed a verification for the state court filing back on December 1st, he has since been made aware that some of the allegations and the evidence proffered by the experts has been inaccurate. For him to sign a new verification with that knowledge and incorporation by reference would not be accurate." Is John Eastman discussing president Trump having personal knowledge that those numbers are quote not accurate. Yeah.

0:50:16 Thomas: Who said that? That's Eastman, that's Wow, I'm just surprised because it's like, you know, he put it in writing. He just, he just wrote, just it. He He just wrote it down. That sounds more like a Cipollone move, you know, like he's, right? It's like, hey, just noting for everybody if we did this, you know, but he just, he just said it. Okay.

0:50:31 Andrew: He just put it down. He He Again, and think about this. I think there are similar documents, know, probably in the Naralago case, right? Because think of how crazy that pleading is, right, and how ridiculous it was that we got relief. It was specifically and creatively drafted to avoid the president or his representatives ever having to sign a document that said they took my stuff. Right. And here's the stuff that they took.

0:51:05 Thomas: Yeah. God, it's just, ah, it is so infuriating to think about what the, what judge, Cannon, she doesn't deserve that cool name. Damn it.

0:51:11 Andrew: Know. No.

0:51:15 Thomas: She ought to be Judge Squirtgun. You don't get to be judge cannon.

0:51:19 Andrew: Agreed. Agreed, Judge Squirtgut. I like that. So there are other documents out there like that, which basically say is our first insight that Donald Trump, know, whatever you may think of his mental faculties, is somebody who has been in this fashion for half a century and knows better than when he's got to sign a declaration or an affidavit. It and it's like, no, no, I'm not signing I'm Not signing that, don't, don't put the specific numbers in there because that's perjury and that's how they get me.

0:51:43 Thomas: Yeah. Yeah. Yeah. I mean, I hate to give criming advice, but like that he's been pretty smart as a criminal to never just never write anything, email anything, you know, and actually, unfortunately, that that is pretty good way to avoid consequences for crime. Oh, also be a rich old crusty white billionaire racist.

0:51:49 Andrew: Yeah. Yep. Well, Yeah.

0:52:02 Thomas: That that helps, too.

0:52:02 Andrew: That that always helps. Bring it to a conclusion, again, I'm going to quote from the court. The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers both in court and to the public. I, I don't know how you smoke a gun any better than that. Right, that we have said from the beginning, right, the defense that the Trump team is going to mount to a, an 18 USC 371, yeah, he really believed this.

0:52:31 Thomas: Yeah. Is that he's so dumb he didn't know the President, the former president of the United States, is so dumb and incompetent that he didn't know he was doing a whole coup thing because he thought maybe he did actually win the presidency, which already I just want to plant my flag already shouldn'T have been a good defense. Um, I, at the very least, and remind me where you are on this, at the very least, that should have been something that you would, the DOJ or whoever should make the argument in court, that shouldn't be a reason to not indict him. If it's like, well, he could potentially say that he's so dumb, he didn't know. So know, I hope at least they would have fought that argument in court, but yeah, now we don't have to.

0:52:46 Andrew: He Really believed all of this, correct. I I I think that's right, but, but again, you as we have said, right, the statutes have some kind of intent provision, right? So 18 U.S.C. 1512 C2 says whoever corruptly obstructs, influences or impedes any official proceeding, and you could say, yeah, I was obstructing, uh, the, January 6th gathering to count the electors, but I wasn't doing it corruptly. I oh,

0:53:26 Thomas: Yeah. Yeah, I get it. I guess the only point I was making is, and this will hopefully never matter now, if they would have declined to indict on that, like, oh, maybe we can't prove he was corrupt there. I would have marched on the effing DOJ. At the very least, they should have made that argument. The extent to which we were hemming and hawing about this months ago, it just felt frustrating because it's like, okay, but like you still, he could definitely, he's so indictable. Look at him. Look at his face. He's so indictable for this.

0:53:46 Andrew: Yeah, that would be chicken shit. Yeah,

0:54:06 Thomas: At the very least, make them argue in court that Trump is so stupid he didn't know he was criming here. You know?

0:54:04 Andrew: It's such an indictable face, zero. Zero argument there. But, but it is, is as we are assessing the strengths and weaknesses of the case and to be marked as like, if I were consulting the DOJ and they're like, hey, how could we lose this case, I would say well, yeah, you would you would lose the case by not proving criminal intent and then not proving specific corrupt criminal intent. That's a high bar, don't, don't underestimate that, right? And in my view, if these documents say what the court, which has no reason to lie about them, says they say, uh, then we've patched up that last hole. That seems awfully significant to me.

0:54:25 Thomas: Yeah, yeah, sure, sure. Yeah. So what's the timing? Who already had the, did nobody have these? And we're just, okay. Okay. I wasn't sure if it was the kind of thing where like, we're, you know, picking up the crumbs of what's been unredacted and DOJ has had this for months or whatever. So this is, everybody is just getting a look at this now.

0:54:48 Andrew: No, no, one's had them. John these documents will not be released to the One six committee until October 28th, right, until next week, um, Eastman has time to get together and redact them and send them off um, quotations, we have the quotations that, that are in the court's order. So, yeah, the

0:55:16 Thomas: What, but we have them before the one six. Wow. Everybody congratulations listeners.

0:55:23 Thomas: And this was, again, you were saying this was because the judge was like, so away by this, that the judge Was like, "Check out how bad this is," kind of thing that sounds kind of unheard unheard of, wow.

0:55:28 Andrew: By the content. Yeah. Yeah, it of to, you know, footnote 73 document 60742. But yeah, only it reason I know what these documents say is because the court has told me what they say.

0:55:35 Thomas: Wow. So I can't think of any ways, to to rain on this parade, Andrew. I was, I mean, those I'm, are the negatron things I would have said is like, oh, if this existed, how is he not already indicted? But like, if if we're only now getting a hold of this, um, what do you think is going to happen? Is this something that goes to one six and and then DOJ, or like at the same time, or what do you think is going to be kind of how that coordinates? Oh,

0:56:04 Andrew: So it will go to the 1-6 committee and the 1st 6 committee can then refer out those documents and they have shared. They've obviously shared some of their materials with the ongoing DOJ investigation. It will also be crucial that these documents be provided to Fonny Willis in Fulton County. The the district attorney in Fulton County that has the you what was already a slam dunk case on the basis of Raffensperger.

0:56:24 Thomas: Yeah. Yeah. I'm still, again, if I'm negatroning, I don't know why that hasn't already happened.

0:56:35 Andrew: Again, the grand jury situation, the special grand jury in Atlanta is just super weird. And I don't think any prosecutor there's I don'T to say no way. But I think Fannie Willis's office, as we got closer to the election, Georgia is a crucial battleground state in

0:56:35 Thomas: Oh, Right.

0:56:51 Thomas: The election in which the person they're talking about isn't on the ballot at all.

0:56:55 Andrew: Which she's not on the ballot. But like, let's be honest, if the news were to break tomorrow that Georgia has criminally indicted Donald Trump, that would be a huge boost to the Herschel Walker campaign in Georgia. Right. That would immediately. Right. Because the way in which Raphael Warnock is going to win reelection in Georgia is by taking the same Republicans and being like, come on.

0:56:55 Thomas: Yeah. Okay.

0:57:19 Thomas: So you're saying this isn't some like trying decorum thing? It's more like, no, just realpolitik, whatever, like this might help the other side.

0:57:19 Andrew: Right, I I think that it is I think the principle is you do not make charging decisions, whether at the DOJ or at the state level that have political implications close to an election. And I think that that is underscored by the fact that the political implications here are very likely to help Republicans. Right. In what is a very, very close election. So, you know.

0:57:47 Thomas: Wait a minute. I'm just realizing we're like out of time, but I forgot we haven't even gotten to talk about the fact that the 1-6 committee voted to subpoena Trump in our waning moments here. Can you wildcard us?

0:57:58 Andrew: Yeah. Yeah, let me let me wildcard you as quickly as possible, because there's lot of misinformation about that. That is an Office of Legal Counsel memorandum, you know, a sternly worded crunch wrap that says that presidents and their aides, both in office and after their term of office, are absolutely immune from having to respond to a presidential subpoena. That's clearly not true.

0:58:10 Thomas: Mm-hmm.

0:58:19 Thomas: Well, why is that still a memo? Don't we have that LLC now? Don't We Get to Unmemo That? That.

0:58:26 Andrew: We do. We could we could unmemo that. But it has not not blocked the DOJ, for example, from prosecuting and convicting and writing a sentencing memorandum that I discuss on yesterday's clean up on all 45 for Steve Bannon. Yeah.

0:58:41 Thomas: Heard it. Listen to it.

0:58:42 Andrew: So, you know, no, there's a former presidential advisor. And and the argument that presidents are immune from congressional subpoena and their immediate aides is a separation of powers argument while you are the president. Right. And the argument, basically it goes like this. It's like Congress couldn't disrupt the president and make that person show up every day to like answer questions because that would disrupt the presidency. And lord knows if they had that power, like Republicans are very likely to take back the House, like they would do that, they

0:59:05 Thomas: Yeah, this was an incredibly weak argument when Trump was president and just was watching cable news or tweeting all day. And you're like, what are we keeping him from exactly? It feels even weaker when he's not even president anymore. Oh, we can't disrupt his not presidenting because that would something.

0:59:18 Andrew: Right. Yeah. Super busy but yeah. That's that's Right, yeah. And and So I I think when you look at, uh, the legal landscape in particular, um, you have an adverse decision about about Nixon while he was president, right, that was the Select Committee, Senate Select Committee versus Nixon case, uh, when Nixon was still president, um, the Senate investigative committee requested the Watergate tapes and Nixon was like, I don't have to listen to you. And um, the D.C. Circuit was like, like, well, yeah, he kind of doesn't have to. But the difference was U.S. v. Nixon. When right? A grand jury said, give us the Watergate tapes, and Nixon was like, I don't have to listen to you. The Supreme Court was like, well, you kind of do when it's a grand jury, right, like that's the difference between a criminal investigation and congressional investigation. So here's brass tacks, bottom line, obviously this is new a question. Question, uh, the president is going to decline, if F-POTUS is going to decline to show up.

0:59:33 Thomas: Yeah. Yeah, f boy, POTUS Yeah.

1:00:26 Andrew: Yep, now again, there's nothing to stop him from doing an Eastman, there's nothing to stop Trump from saying, okay, fine, I'll show up, my answer to everything is fifth, right, I plead the fifth, I plead to fifth, fifth, fifth, Fifth. He could do that

1:00:36 Thomas: Yeah, I yeah. Man, thinking about Trump as a guy has he responded to this, has he said what he was going to do, that's surprising that he wouldn't just announce because that seems to be hard because cause he's been saying, give me my time and call. I want to have my say the, the, what does he call the stupid, the unselect committee?

1:00:43 Andrew: Nope. Nope. Well what he said is you know, the unhinged rant pant Yeah. Yeah, he

1:00:58 Thomas: What does that even mean?

1:00:58 Andrew: Does he calls them the unselect committee because it

1:01:00 Thomas: Unselect.

1:01:00 Andrew: Is the select committee on investigation okay, I'm sorry, that's nothing, that's just, that's just Marco Rubio has a tiny penis.

1:01:01 Thomas: I know. No, I know, Andrew. What, what is it? Unselection. That doesn't, that's nothing. It's

1:01:10 Andrew: I mean, yes, you're you're shocked by this unselection

1:01:10 Thomas: Just saying like, nah, there's no, yeah, that'S not clever. I'm just, there'S no, you know, there' s additional pun there. He'S just saying unselection, okay. Anyway, select committee. More like not, not very select, right, got him, so anyway

1:01:26 Andrew: Got him, yeah, if unselector a schoolyard insult, this would be clever, but it isn't, so it's not. So, yeah.

1:01:33 Thomas: Um, he's already said that he should have his time, but but he hasn't gone so far as to say, like, oh, okay, yeah, I'll tell you, let's Frost Nixon this, you know, like, I, because I, not zero percent that he would try something that stupid, that's probably zero percent, I don't know, what do you think, that he would actually go in and try to to like have his day in court publicly, yeah?

1:01:40 Andrew: Yeah, I do not think Trump will do that. I think everything we've seen about him is, you know, if he can avoid being on the record, he will take that rather than have clips which will then be out there for the One-Six Committee to use of of him saying fifth. Right. And remember, like the clock is ticking. I mean, it's it's late October. If the Republicans win back the House, which, again, they look overwhelmingly likely to do, then the one six committee will be dissolved on, you know, January 3rd, 2023.

1:01:52 Thomas: That's that's pretty dumb. Yeah. Yeah. Yeah. Oh. Yeah. He'll just wait it out, yeah.

1:02:20 Andrew: Now, does not stop a couple of things, If the president defies the subpoena, the 1-6 Committee in December absolutely can make a criminal referral under 2 U.S.C. 192 to the Department of Justice.

1:02:20 Thomas: Hey, let's, um, vote, everybody, please god, for the love of god, please vote. They can ban on him, hmm.

1:02:38 Andrew: They can 100% ban on him. Now, again, they didn't make a criminal. They made the House made a criminal referral on Mark Meadows and the DOJ declined to act. So, you, whether the DOG would act in response to that, I don't know. But what I can say is making that referral in December survives a Republican House takeover. There's right, not a takesies backsies. It is, there was a then valid subpoena. You did not respond to that then valid subpoena. The fact that the House later withdrew the subpoena does not obviate the crime in any way whatsoever. So that's how that breaks down.

You know, folks, it calling it symbolic, I think, are correct for that reason, just because of the compressed time frame and because, you know, the law is unsettled. Can Congress compel the attendance of a of former, no longer sitting president, I think the answer to that is probably yes, but I don't think we'll ever get a decision on the merits because of the the time frame, um, but but we could get a 2 U.S.C. 192 charge to be added to the long list of crimes that the former president has committed, fair.

1:02:48 Thomas: Wow.

1:03:41 Thomas: You go.

1:03:41 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

1:03:48 Thomas: Now it's time for T3BE, uh, who got a little, little too confident last time, was was foiled by some old-timey sexism I didn't pick up on, I'm gonna go ahead claim that as my defense, but uh, back at it, can I, a non-lawyer, based on nothing but hours and hours and ours of listening to Andrew cover Trump crimes, uh, can I answer a bar question? Here we go, I

1:04:03 Andrew: All right, Thomas, after school hours a school teacher asked a student to carry the school teacher's books to the teacher's car. The student demanded payment, but the teacher threatened to report the student to the principal for bad behavior. Had that escalated quickly, as a result, the student carried the teacher's books to her car for no payment. Is the student entitled to damages for breach of contract? Okay.

1:04:19 Thomas: Love this new book wow okay yeah breach

1:04:35 Andrew: A, no, the contract was not breached. B, yes, assuming an implied contract contract existed. C, yes, because no contract existed, or D, no, because the teacher coerced the student's unwilling performance. All

1:04:33 Thomas: Of contract, what, okay, what the the, this is a, this, this book is very different. So I, why would there be a contract? I know, I mean, basic contract law, I already feel like there's no consideration here. Um, you got asked the student carry a car, student demanded payment, but the teacher threatened to report. So that's not a contract. You can't be like, Hey, I'm going to buy something from you. And then your response responses. Uh, no, do this or I'll hurt you in some way. We're not in a contract. I don't think as a result, as a results, the student carried the teacher's books, a car for no payment is the student entitled to damages for breach of contract. No, there's no contract there. I mean, I guess the trick is like, is there no contract or was is there just enough of the idea of a contract to where there's some sort of, I just don't see how there's a contract I don'T get get it.

1:05:38 Thomas: So a, no, the contract was not breached. That seems wrong. B yes. Assuming an implied contract existed. Okay. That's the, that's the tricky answer because you know, you get to say like, yes, assuming square circles, then yes. I'm just like, okay, I guess. Yeah. If I get to assume that an implied contract existed, demanded payment teacher threatened to report as a result, the student carried for no payment. Can't, I can'T see how that's even an implied contact Unless the contract is, here, you do this for me and the consideration is I won't, is blackmail, I guess? Like I wonít tell the principal on you? Could that be considered consideration? C, yes, because no contract existed. I love that one. Can you be entitled to damages for breach of contract when no contract exists?

1:06:26 Thomas: That seems, C, if C is it, I'm just going to quit the law. Because I don't see how you could be entitled to damages for breaching a contract that did not exist. But who knows? Or D, no, because the teacher coerced the students on willing performance. It seems pretty clearly D to me. I'm between B and D just because B is like, yeah, okay, if you assume an implied contract existed, that would be weird. So I'm between B&D for that reason, but I'm going D.

1:06:52 Andrew: Right, 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 fortunate not guaranteed, yeah.

1:07:05 Thomas: This is why we got to pay teachers more, by the way. They wouldn't be trying to rely on slave student labor.

1:07:07 Andrew: Absolutely. I'm gonna, yeah.

1:07:12 Thomas: Pay teachers better.

1:07:13 Clip: And thank you, Let's go!

1:07:15 Thomas: And now it's time to thank our new patrons at patreon.com/law, just uh reminding you of the goodies, the ad free shows, the early shows, the LOT Awful Podcast, now coming to you very quickly. And I'll start us off. So thank you to christine brean, Justin Scott Woods, Roxann Hirst, naturenut, Joel White, Tim Miller, Mama K, and Dylan. Your turn, Andrew.

1:07:38 Andrew: And a big thank you to Chris Wiswell, Roeland, uh, Chris F. LaBonte, Patchip Aloné, um, there's a unpronounceable symbol there, Kirklin J Bateman, the 666th Sick Sheik's Sixth Sick Sheep, so uh, these uh tongue twisters are getting better, charles coalson, and and Becky Leib Kennedy, thank you all so much for supporting the show.

1:08:06 Thomas: And that's our show. Thanks so much for listening. Can't wait for next episode. Good stuff, Andrew, glad to have you back off a ship, as I'm sure people could tell. And uh looking forward to more away coming at you very soon and that lot of movies go to patreon.com see you soon

1:08:22 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.

1:08:56 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.