OA656: Oath Keepers Found Guilty of Sedition!

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 656. I'm Thomas, I'm just a guy, I guess, and that's Andrew Torres. He's super cool lawyer who knows everything. How you doing, Andrew?

0:01:28 Andrew: Thomas is just this guy, you know, you doing?

0:01:32 Thomas: I'm doing well.

0:01:33 Andrew: Good.

0:01:33 Thomas: How are you feeling?

0:01:34 Andrew: I'm Good, I'm loving the new format we have. Able to put, like, usually when I say I'm gonna talk about, like, revisiting stories and talking about Trump, and it's like there are 11 things and you're like, all right, I'm not gonna get to all 11 of those, ah.

0:01:48 Thomas: I know. This has been carte blanche, or whatever you say, on bullet points for Andrew. Andrew, I've previously given him a little bit of crap about, hey, um, that's a 14 pages of bullet points, uh, that you think you can get to in 45 minutes. I'm, I'm a little skeptical of that, Andrew, I'm not sure you're gonna. Now it's just, it's, it's over with a new format, bullet points are coming out of my ears. It's every bullet point. So, we plenty to talk about, and then I also want to do a mini, I've little, uh, update on the music episode, uh, as a result of some of the, the response we got, oh,

0:02:00 Andrew: Yeah, It's over Oh, well let's, why don't we hit that one first?

0:02:23 Thomas: Okay, well, why don't we do it, um, couple things, uh, first off, I, we didn't say but it was, it was certainly worth mentioning, um, that obviously that Blurred Line song is misogynistic, rapey garbage. Like, I don't know, I had, we record for so long, 150 minutes, I just was, we specifically just analyzed the music for that. Like, it's just, it's a music law case, it's a very important music law case. And the, music the is very important for that reason to know, you know, like what's going on law-wise for that song, but the song, we didn't play any of the lyrics. The lyrics are, of course, misogynistic, rapey garbage that, you know, of course we don't endorse. Just thought it was worth mentioning. I didn't even think to mention it, but kind of thought it went without saying, but that's why we just stuck to the music, right?

0:03:05 Andrew: Since we have previously discussed the Campbell decision before the Supreme Court, which is, that is Luther Campbell of the Two Live Crew, which, yeah, but believe me, like, the fact that we mention a decision does not mean we endorse the underlying lyrics.

0:03:22 Thomas: I mean, we got to talk, we have to talk about often Supreme Court history that is just terrible, you know, it's very, I I think we, we, you know, I, I trust the audience

0:03:28 Andrew: Put an asterisk around every Clarence Thomas opinion.

0:03:34 Thomas: Yeah, well, I mean, I put, I put a, uh, trust in the audience that, they, you know, we're talking about arguments and and and I just saw a few things that was like, I was defending the song or something, because I was saying, you know, it didn't rip off the other one, like, no, I, I mean, that's two very different questions. I mean it's a rapey garbage song, but it didn't – I don't believe it should have been found liable for ripping off the other song. It's two totally separate questions. On that note though, that all.

I wouldn't have brought that up in itself, but, but in addition to that, Andrew had, I kind a of a funny thought when somebody in the Facebook group posted, hey, the music, you know, because the music was the topic, and we're talking about, someone's like, hey, I've always wondered what the Opening Arguments outro is, it sounds like a 90s kind of law theme song, whatever, but I couldn't place it, this part seemed familiar, and I was like, no, yeah, that's just me, and then joking I was like, yeah, but maybe I accidentally ripped off a bunch of other stuff, you know, along this. And

0:03:48 Andrew: Yeah.

0:04:25 Thomas: Then that got me thinking, yeah.

0:04:25 Andrew: Dun, dun, lot.

0:04:28 Thomas: Put a pin in that, because there's also the issue with the Pharrell thing that some people commented, hey, he admitted that he, you ripped it off or used it as inspiration. So I looked into that and in the original case, he testified that, yes, the feel might be the same, but the song isn't. They didn't rip off the song, which is absolutely true, in my opinion. And then apparently in 2019, he did some sort of interview where he said something to the fact, I'm actually having a hard time finding the interview, but I keep finding it quoted everywhere where he Said something like, Oh, we reverse engineered, know, that sound or that thing. And a lot of people have pointed to that as proof of like, oh, I am totally wrong in my analysis because he admitted he reverse engineered it. What's interesting is he then somehow went on trial for perjury for that. I don't really, it'd be interesting to look into later on, Andrew, if you want to, but I'm not, we're not doing this deep dive now.

0:05:15 Thomas: One way or the other, he was, was found not, not to have perjured himself. I don't know if it was a criminal thing, or it's just a civil, you could sue, I, that was what I was unclear on. The family won the original case, so it seemed weird that they would also be able to sue for perjury in a thing they, want I don't know what that would be, um, what would that be, actually? Do you, we'll have Andrew take a look.

0:05:29 Andrew: I I, would have to take a look at that underlying opinion, which I haven't seen Yeah.

0:05:35 Thomas: Didn't want to get into the deep dive, but except to say that he was found not to have perjured himself, so, I.e, the comment that he, they reverse engineered, whatever, was not found to, to contradict the testimony that they didn't rip it off. And the reasoning was like, yeah, you could interpret that a lot of ways. You can interpret it that they reverse engineered the feel, the emotion, the feeling, whatever, that kind of thing. So that's that. But I also, it got me thinking, Andrew, I have an example of someone who openly admitted to reverse engineering another song. Proudly so. Think it's a pretty decent song. I And thought I might play here. Let's play this example I have. Check this one out.

0:05:45 Andrew: Uh-huh,

0:06:25 Thomas: Dozens of people in the listening audience will recognize that as the theme for Philosophers in Space that I wrote. Pretty proud of that one. I like that one quite a bit, but it got me thinking that comment on my opening arguments outro music. I was thinking like, yeah, no, I openly was like, I want something inspired by Star Trek, by the Star Trek theme, and, you know, incorporate some of the same elements, the same sound.

Now I want us to set aside the fact, Andrew, that I'm pretty sure legally you would tell me that there would be like a good, you know, parody defense for this or whatever. I want to set that aside and just pretend that doesn't exist. This is so much more of a direct ripoff of Star Trek than, in my opinion, this, the Pharrell song, is of Marvin Gaye. There's way more common elements, there's way more that directly ties it to a kind of a Star Trek II big theme, but like I'm curious, out there, think that that would mean I shouldn't have been able to do that?

Or I should have owed somebody, whoever wrote the Star Trek theme money? Should I not be able to do that? Should I, you know, cause this in my musical opinion, that's totally fine. I wrote

0:06:30 Andrew: Yeah. Yeah, did

0:07:27 Thomas: A thing that it was like, yeah, I wanted to be evocative of this. It has a lot of the same elements, the same things.

0:07:31 Andrew: I love that, because this is an area I think where the two tests that we sort of put forth – and again, I want to be very, very clear here. This is not – neither you nor I have offered this test with legal precision, right? If we were writing an amicus brief, we would, workshop you it. This is, this is not the law. This is kind of our view of maybe where the law of copyright as it interfaces with specifically the genre of music. Right. And short form, you pop music songs, intro, outro. And the test I gave was kind of the Idol versus direct copy, right?

That should not copyright be law with respect to music in such a way that creates essentially a double standard, right, know where that bright line is with written works. If I write it was the best at times, it was worst at times. Right. I've directly ripped off, even if it's a small segment, I've directly ripped Off Charles Dickens, assuming that the Dickens copy earned his value, which it almost certainly isn't. On Right. The other hand, you if I put out another show about let's get amateurs on here and see who can sing and, you know, that the American Idol

0:07:52 Thomas: Yeah. Yeah. Oh,

0:08:41 Andrew: Test, I haven't because I'm just inspired by that idea. Your way of kind of combining that was the what's what'S the part that you hum in the shower? Right. What's the key element of the song or key elements? And I think you would recognize that there could be multiple elements, you know,

0:08:57 Thomas: Sure. Sure. Yeah. Somebody took my, example of that to mean that I wouldn't ever recognize a beat as that hook. And it's worth saying again, 150 million episodes. We Can't say every single thing. Yeah, a beat certainly could be the hook of a song, could be the recognizable thing or the thing that's that important to the song, but it can't be if it's just a generic, every song has common elements. Again, if you rip off hit for hit, every component of a beat, a drum set only has so many things, you know, like it's just not how music works. They're so, in the trial, Pharrell said like, yeah, every salsa song is the same then, they're all the same song. They they definitionally have that same rhythm like that's what the genre is, that's that's not copyrightable in my opinion.

0:09:07 Andrew: I'm going

0:09:44 Thomas: Like It's Yeah.

0:09:44 Andrew: To start writing some waltzes.

0:09:46 Thomas: Yeah, it's it's because that would just be the time signature, but but don't know if there's a reference anyone will get, but if somebody uses the beat, the exact beat with the exact exact same sounds of Idiotech by Radiohead, which is a very, cool beat, very prominent in the song. Yeah, that's copyright infringement. But also if you recreated that with different, just like, I don't know, on acoustic drums and kind of changed around maybe some of the hits and where they went. No, I do not think it is. It is so, it is so. There is so little there. Like as a musician, that is just, that just music, man. That is just how it works.

0:10:19 Andrew: I agree with you, and so, so I would say under either test, in my view, your Philosophers in Space song passes, falls right? Under the American Idol, you portion of my ruling. And also I think it it clearly does not appropriate the melody of of the Star Trek theme, but it also doesn't appropriate the sort of key elements that go into that melody, the, like I don't know if it's a slide whistle, but

0:10:20 Thomas: Here's I did kind of directly rip off the idea of four kind of notes in the the beginning, like a slow underlying kind of strings, and then four notes, they're totally different notes, but it's that kind of thing, like is is that enough, I I don't still don't think it is. Notes so It's the it's that, that's what I was, I I can't, it's been it's been like four years, I didn't remember, but I ripped off that idea. It's faster, it's not the same notes, but also I did another thing I thought was really cool where I bring it back at the end, but because we've changed, either I don't remember, we changed either the key or the underlying chord, so it sounds completely different, um, but anyway.

0:11:30 Andrew: I Love that, and and again this is an area that that we didn't discuss, and by the way that's what I would consider the sort of the the slide whistly parts, and I, having heard it again, I realize it's Not Actually

0:11:39 Thomas: That's Yeah, I should I Should get that In that of thing.

0:11:41 Andrew: Yeah It's not actually a slide whistle, but you know that's what I meant, think we never really came around to a conclusion on the subject of, oh yeah, I wanted to make a song that sounded like X, you

0:11:57 Thomas: Well Andrew, in that episode, I give you my opnion that it was like if you use the same chord progression, that's kind of an example of that. But I don't know, now I'm thinking it's more like this and it's fine. Like, it's like, Hey, and by the way, when when the music industry really took off, like financially in the, I don't know, the late fifties and sixties, that's all the people would do. They'd be like, Oh, that was a hit. Let's find a way to do that exact sound.

0:12:19 Andrew: Find something like that. Yeah.

0:12:20 Thomas: Yeah. It's that's, that's so decades old. And that's why I have this reaction to to the blurred lines case is like, you can't copyright a feel. Just, it's absurd to me.

0:12:29 Andrew: But interestingly enough, if you were to look at, can you copyright a feel, right? If you were type that into Westlaw, what you would get would be the seminal lawsuit between Microsoft and Apple in the 1990s, which

0:12:43 Thomas: I haven't heard their hits. What songs did they do?

0:12:45 Andrew: That you established that you do have a software right to the look and feel of your application, right. Right. This was an argument that, you know, the Windows operating system appropriated the look and feel of the Apple graphical interface. And again, you can see the argument on the other side. Right. The argument on either side is my American Idol test. Like, yeah, we're just talking about like, you dragging a pointer across the, you Know, across a computer screen. That's an idea, not a look and Feel in software. It becomes look and Feel.

0:12:55 Thomas: Okay. That's fair. Yeah.

0:13:19 Thomas: But once again, I think It's about the context because it's granularity. That's what it is. It's how far are you zooming in or out on these given things? Because you can zoom all the way out and say, wow, these are both songs. That's a ripoff. You know, know, like, and I'm not, that's just for sake of absurdity.

0:13:32 Andrew: And Or Or And We should we should give credit to the 500 people that sent us the "what is that" axis of awesome for chord song.

0:13:35 Thomas: Uh, oh, Yeah. For some reason, everyone thinks that's something I have to mention or something. Look, I get that it's all in good, good cheer and fun, but we get 4,000 of that every time we talk music. I've heard, I heard that in college. I'm familiar with the axis of awesome thing that I would have mentioned it if it was the same chord progression. Like if we had been analyzing something that was that same chord progression, it might have been relevant, but all that would serve to prove is that songs can have the same chord progression, was something we already established quickly in a way that was a lot faster in an episode that was 150 minutes that I added it down to 110 minutes or whatever. It's fun, it's, it's good clip, acknowledged.

0:13:45 Andrew: Yep.

0:14:04 Andrew: All that Uh, but Yep.

0:14:17 Thomas: Don't need to send it to me anymore, depending.

0:14:18 Andrew: Agreed. And And provoked some good discussion on the on the Facebook groups. People with also have pointed us to the CCR versus John Fogerty lawsuit where John Fokerty was, yep, alleged to have plagiarized from himself. And there's so much. I guess what I want to say is this remains just such a rich vein to mine. And we will continue to be thinking about because I think the more we do this, the more I'm convinced that existing copyright law is just it doesn't match up with our expectations in across different media. And you wind up with different principles applying the exact same rules. You wind up mit different principles. And, you as a principles guy that that hurts. That Yeah,

0:14:28 Thomas: Yes, I think we referenced that last time, but yeah, well, to finished my point, I don't Yeah, music law is inconsistent, but I think just us talking theoretically, I think we actually can satisfy the things you're trying to do. I think it's about granularity. I think it's about how far do you zoom in when you say, okay, the look in the field for software, that's copyrightable. Well, yeah, but that's, I don't know know, that's because of how that functions, how software functions and how, how much we're exposed to it in relation to those visual elements.

Whereas if you look at music, there, every song from time immemorial, there are so many songs that share the same feel. Like if there had already been, in in the case of that software, uh, just tens of thousands of other pieces of software that had that exact look and feel, and to the point where it's something we took for granted as not even in an element of the program that we thought about. Like, it was just like so generic that we're like, yeah, that's not a look and feel, every program for 60 years, even though it's not the equivalent.

0:15:55 Thomas: You know what I mean? So it's about, you can't just take an element of music and take an elements of some other area of copyright law and assume those are at the same level of granularity, and say, if this is the same as this, then this can't be the same as this. You you have to put it into the context of the form itself. And in songs, songs feel is something that billions of songs share all the time. And in software, that look and feel might not be something that millions of pieces of software have always shared all the time. You know what I mean?

0:16:24 Andrew: I do. And, you part of I don't want to get too far down the rabbit trail of looking, looking, look and feel software. But but what I would say is arose because in when it comes to copyright and software, one of the early defenses was we'll take a look at the underlying code, right? Look at the code for X, look at the code for Y, and you can see we didn't copy this in the way that it was the best of times, it was the worst of times. It's not word for word. And the plaintiffs would say, right, but you reverse engineered it, right. That's where that term comes from, right, was you looked at our copyrighted product and you figured out a different way to get

0:16:27 Thomas: Yeah. Another 150 minutes, Andrew, let's do it.

0:16:52 Thomas: Right. Yeah.

0:17:07 Andrew: There. But as a matter of first impression, we are asking that copyright law considers that to be copying, and until those early rulings came out, right, that was not a settled question, right, that you, because the response was the book response, right, was, right, but if I'm using a different way to get there, then that's the copyrightable element, the copyrightable elements is the code. And courts instead established that, no, no, the copyrightable element is the artistic element, the unique, right, aspect that you've added, right, whether that is how that's displayed or whether that's how that is processed, right. You can copy software in multiple different ways. Maybe we should do a deep dive on software copyright, much fun stuff to do. And we get a lot of positive feedback, so I think a lot of people enjoy when we do these kind of art and the law episodes.

0:17:53 Thomas: Yeah, absolutely. They love to hate us. No. So what I would put to the audience in conclusion is I'm curious, and again, ignoring parody, because I think that is kind of an escape hatch on that. Ignoring parody, should I have been allowed to compose that song in that way, or should I owe somebody money? And if so, or if not, how is that different than Blurred Lines and the Marvin Gaye song? And that would be what I'm curios for people's thoughts on.

0:17:59 Andrew: That that is true. Yeah.

0:18:23 Andrew: And and you still. You're not emphasizing what I think is the very best part of that, which is if you were put on the stand, your answer would be, oh, yeah, no, I was directly, you know, ripping off the Star Trek theme.

0:18:30 Thomas: Yeah, absolutely. I was seeking to create something. You could say say reverse engineering. I was reverse engineering the, what went into that and what makes it kind of sound and have the effect that it does. And I was reproducing something with different music, with different notes, with different underlying chords, you? And so that's, in my opinion, completely fine.

0:18:50 Andrew: And I think that is a very close analog to Pharrell's testimony. So I love it. I love that example. And we'll we'll put that to the listeners.

0:18:56 Thomas: I think so. Alrighty.

0:19:02 Clip: Good news! There's a report on TV with some very bad news!

0:19:05 Thomas: All Right, Andrew. Well, I'm sorry. I sidetracked us a a little bit, hijacked us a little because we needed to get to a little bit of celebrating, but Hey, we were going to do a celebration dance. So we need some celebration music. And so that's why we did that first segment. Stuart Rhodes and Kelly Meggs found guilty. Give us the details there.

0:19:12 Andrew: Yeah, there you go. Yeah. So huge victory for Team Merrick Garland, and you, um, now have enough data points if you're on Team Merrick Garland, is a federalist society spy like yeah.

0:19:31 Thomas: No one's on that team, Andrew. No

0:19:32 Andrew: That that team has disbanded and gone home. This is 18 USC section 2384. All of the top, the Oath Keepers and Proud Boys were charged with this particular offense, and the jury returned a guilty verdict for the founder and leader, Stuart Rhodes. He's the guy that looks like Sleazardo with the eye patch. And Kelly Meggs, because he shot himself with his own gun. I absolutely love that in every conceivable way.

0:19:33 Thomas: One is on that. Hey, why does he have an iPad? You remember these gun nuts?

0:20:05 Andrew: And then Kelly Meggs, kind of his top lieutenant. Statute, again, this is the first conviction in four decades. And if you're thinking, gosh, why would we want to trial run at the DOJ for convicting someone of seditious conspiracy when we haven't done that in four decades? Well, I'll leave that to your imagination, it right? Says if two or more persons conspire to overthrow, put down or destroy by force the government of the United States. Right.

And I'm omitting some words here that are not relevant to what was charged against these folks or by force to prevent, hinder or delay the execution of any law of the United States. They shall be fined under this title or in prison, not more than 20 years or both. And notice that that incorporates all of the intent requirement from some of the other obstruction statutes that we've talked about and also includes that you have to want to, by force, destroy the government of the United States or prevent, hinder or delay the execution of any law of the united states. Right. So one of the things that was a valid defense that Rhodes and Megs put up in their trial was, oh, yeah, well, no, we were like we there to march in support of Donald Trump and we like to have our guns wherever we go. But but we

0:21:24 Andrew: Didn't bring.

0:21:24 Thomas: Look at my eye patch. I can testify to the fact.

0:21:26 Andrew: Yeah, I shoot this thing off all the time. But we did not intend by force to prevent the operation of the Electoral Count Act or to overthrow the government. We intended to be disruptive. We intended to, right. And so that was sort of the gravamen of the defense and that worked, by the way, for three of the co-defendants who were just sort of foot soldiers, The jury right? Said, yeah, okay, maybe for seditious conspiracy. But Rhodes, you do. Megs, you don't. You And so if you're looking at that going, okay OK, now we have a pretty good idea of what it takes to persuade a jury that somebody is guilty of this particular offense. And I can kind of imagine how that might be useful to a certain special prosecutor going forward.

0:22:16 Andrew: Now, folks have asked me, so the statute you just read said not more than 20 years. How much jail time are these idiots going to get? Right. And my answer to you is, I don't know. And here's why. Right.

0:22:31 Thomas: Interesting. Usually you have like the matrix going of how many months and years and everything.

0:22:35 Andrew: I went to. So I did that. Right, I went through the matrix. And what you do is you go to the sentencing manual and you look up the statute under which somebody was convicted or and usually that will say, right, you'll look it up. It'll say 18 U.S.C. 1001 and it will say go to section 2B1.1. That's an example off the top of my head that that might be wrong. Don't don't Yeah. Don't at me. That's the format. You Right. Look in the index.

0:22:57 Thomas: Don't me. Yeah.

0:23:01 Andrew: It says, oh, you were convicted of this crime. That's this statute. Go to this section. Not every law is in there because, you know, you pass a lot of laws and, the sentencing manual gets updated every couple of years. And so there are also large subject matter headings, right, that say, OK, well, if you can't find the specific statute, you go to the subject matter and you might look at, terrorism. You Right. And then go to it if you don't have the specific one, you would say, all right, well. We're going to treat this like other prosecutions for terrorism. Um, might, it may not surprise you that seditious conspiracy not only is not present in the specific statutory lookup, there's no lookup for 18 USC 2384. Um, there is no entry for sedition. There's no entry for rebellion.

0:23:47 Andrew: There's no entry for, right? You wind up in the kind of generic conspiracy section at section 2X5.1, which says, if the offense is a felony, which we have here, for which no guideline expressly has been promulgated, apply the most analogous offense guideline. Put a pin If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. 3553 shall control, except that any guidelines and policy statements that can be applied meaningfully in the absence of a guideline shall remain applicable. You're like, okay, what the hell is 18 U.S.C.?

0:24:21 Thomas: What was any of that?

0:24:23 Andrew: Is the section of the code that authorizes the sentencing guidelines in the first place. And it says it's got seven sub parts. It says when a judge is handing down a sentence, they should consider one, the nature and circumstances of the offense and the history and characteristics of the defendant to the need for the sentence imposed. And then there are four subcategories here to reflect the seriousness of the offense, promote respect for the law, provide just punishment. That's That's Part A. Part B, to afford adequate deterrence. Right. So so A is kind of punishment. B is deterrence C to protect the public from further crimes of the defendant. That is specific deterrence and D to provide the defendant with the needed educational or vocational training, medical care or other correctional treatment in the most effective manner.

0:25:13 Andrew: That's a that's a delightful rehabilitative reason left over from the 1970s that, about three Democrats care about these days. I'm a rehabilitationist, but, you now, nobody in the Senate is. So and then three kinds of sentences available for the sentencing guidelines. Here there aren't any five, any pertinent policy statements here. There aren't many six. The need to avoid unwanted sentence disparities.

So if other people doing the same kind of thing typically get five years in prison, you would not want to, without good reason, impose a sentence that's much different, that's not on the close order of five years. Right. It would it would seem odd if, you every other president who steals documents and tries to overthrow the government, you know, gets 90 days in jail, but you want Trump to serve 20 years. That's a fair principle. In fact, that may be sort of the first kind note of fairness that people tend to think of. And then seven, the need to provide restitution to any victims of the offense. Again, probably not relevant here. So when I put all of that together, the closest guideline I could find is obstructing an election. That's 2H2.1, which is a base level of 18 if the obstruction occurred by force or threat of force, right? Now, mind you, obstructing an election is what the folks in Arizona, right, who were wandering around with their stupid fake badges and their guns and trying to deter you from voting in, quote, certain precincts.

0:26:45 Andrew: And we'll let you figure out which precinct they were patrolling in Arizona that led to the imposition of that injunction that we talked about on the show that said, hey, you can't open carry. You got to stand back. You can't go within 175 feet. All those restrictions that were put into place. But imagine that they had done it anyway. Right. Not only would they have violated that civil injunction, they would have been guilty of potentially guilty of obstruction of election.

And that would be a base level 18 offense, which is if you're a first time offender, it's about three years in prison. Right. What other enhancements might there be? Right. What other similar guidelines are? Well, if you've obstructed an officer of the law, you add three levels for if if you used a firearm in the course of doing so. And you add two levels if there was actual bodily injury to the officer, which, again, it absolutely present on one six. That would get you to a level 23, which, again, is 46 to 57 months.

And if you're doing the quick division by 12 in your head, that's four to five years. That still doesn't quite seem enough to cover seditious conspiracy. And what I would say is that the DOJ is going to argue that these cases occur so infrequently that, claiming you you should treat somebody who tried to overthrow the government equivalent to somebody who trying to stop one guy from voting in Arizona, right, understates the seriousness of the offense, uh, and I expect them to emphasize that the judge has significant discretion to apply the the section 3553 factors, um, because remember although there are no baselines for

0:27:34 Thomas: Yeah.

0:28:21 Andrew: Comparing Megs and Roads, whatever sentence those two get will be the baseline of comparison for anyone in the future.

0:28:30 Thomas: All the other treacherous bastards.

0:28:33 Andrew: Yeah, exactly right. So I think DOJ will be trying to seek as significant a penalty as possible. I think that's going to be the most interesting aspect of this is we'll be on top of their sentencing memorandum in that particular case. But either way, the DOJ took a hard case in a statute that is almost never prosecuted and won and established the the groundwork for how you do it. And that is cause for celebration.

0:28:33 Thomas: Yeah. All Good stuff, Andrew. What a nice, what a nice segment. All right, Andrew, we've talked about this a little bit. This Trump case.

0:29:03 Andrew: Yeah, that's Yeah.

0:29:09 Thomas: There's... there's news here. Remind us there's there're so much there's so much bad lawing that's happening in Trump world. I have a hard time keeping them straight. RemIND is this particular monstrosity.

0:29:20 Andrew: This is an Alina Haba joint, so, you know, one of the the dumbest and uh, you know, most most complicit of Trump's lawyers. And again, you know, that's from a universe that includes Rudy Giuliani and Sidney Powell. Right.

0:29:24 Thomas: God.

0:29:34 Thomas: I wish our universe didn't include. Can we get a bit better, you know, anybody know how Portal Gun or anything

0:29:37 Andrew: We all do. Sidney I get that reference. When Sydney Powell won't take the case, you ask Alina Haba to do so.

0:29:43 Thomas: Holy crap. Yeah.

0:29:48 Andrew: Yeah. And so this was a just total nonsense complaint against Hillary, Hillary Clinton and James, JamesComey and the universe for conspiring to not make Trump president in 2016. It was such garbage. It was filed in the Southern District of Florida, where again, I think Trump, I think Donald wanted Trump spin the wheel and come up with Judge Eileen Cannon, Federalist Society weirdo, and instead got Judge Middlebrooks, who was not hearing any of this nonsense, sense and so among the three dozen defendants, uh, were various requests for sanctions under Rule 11. We've talked about that before. That is in connection with the pleading itself, that is, you have filed such garbage, uh, that I shouldn't have had to answer this, we gave you 21 days, that's what the rule requires for you to withdraw.

0:30:38 Andrew: And if you had just said, OK, yeah, that was a bad, I I shouldn't have filed that that pleading, I withdraw it. Then there would be no sanctions. So, in other words, you have to do a spectacularly bad job of lawyering and you have to be indignantly stupid about it or malicious. Right. For the court to award Rule 11 sanctions. This was awarded. The move ant was Charles Dolan, who, who, you know, is a minor player in Democratic politics. He was among the 29 defendants initially served by Trump. He's a former chairman of the DNC and a senior official in the Hillary Clinton campaign. I mean, Hillary Clinton had like 8,000 senior officials in her campaign, but whatever, right? So Dolan said, look, I was named in this bag of nonsense and I want my attorney's fees, as well as, uh, something sufficient to like deter Alina Haba and her, uh, law firm and these idiots from doing stuff like this. And the court said, you got it bro. And by the way, ask your friends, because we'd like them to file some motions for sanctions too. And if you tell

0:31:37 Thomas: Tell your friends, we're handing out sanctions, sanctions, ancient sanctions, come tell your fans, come get some sanctions.

0:31:51 Andrew: You might think I'm being slightly hyperbolic there, and I would say only slightly. Let's read a a tiny bit from the order, this. This is Judge Middlebrooks awarded $66,274.23 in sanctions. So, beginning on page 13, I sifted through all of the paragraphs of the amended complaint searching for an injurious falsehood. Almost all of statements were barred by Florida's two-year statute of limitations. Moreover, none of the elements of the tort of injurious falshood, which involves the intentional interference with property interests, were alleged. Special damages were not alleged, and the damages sought were not recoverable. The foregoing is not an exhaustive list of the problems with plaintiff's legal theories, but they amply demonstrate how unreasonable and meritless the claims were as they pertain to Mr. Dolan.

None of the claims against him or any other defendant, for that matter, had any chance of success, and this weighs strongly in favor of of imposing Rule 11 sanctions. The court continues: not just initiated by a shotgun pleading, this was a shotgun lawsuit. 31 individuals and organizations were summoned to court, forced to hire lawyers to defend against frivolous claims. The only common threat against them was Mr. Trump's animus. Every claim was frivolrous, most barred by settled, well-established, existing law. These were political, political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate

0:33:19 Andrew: Use of the judicial system to pursue a political agenda.

0:33:19 Thomas: They found a line no one could be this dumb, no one would be this bad at their job. We found. Finally. We're down. Putting

0:33:25 Andrew: Yeah, the The judiciary should not accountenance this behavior, and it should be deterred by significant sanctions. The conduct was willful, not simply negligent. Each of the prongs of Rule 11 are met. 31 defendants were sued, forced to hire counsel incurring substantial fees. It was necessary for the United States to be substituted for the federal defendants and represented by the Department of Justice and the U.S. Attorney's office at taxpayer expense. The entire pleading, each of the 14 counts was affected.

The failings of the original complaint were basic and obvious, and when those failings were identified in motions to dismiss, the amended complaint simply added arguments in an attempt to to skirt the statute of limitations, and two more defendants were named. Mr. Trump's former deputy attorney general, yeah, I forgot to say, Rod Rosenstein, was also named in this, and also a California congressman whom Mr. Trump delights in insulting, Adam Schiff. Of course, the choice of defendants combined with the lack of any viable legal theories for liability reflect an intention to injure rather than redress legal harm. Okay, so good, great ruling, lots more coming down the pike. Like that, those sanctions are entered against Alina Haba and her stupid law firm, as well as their local counsel, the Tickton law firm. And so, yeah, the lawyers have to pay that. That's a reasonable deterrent to like not represent Donald Trump and say stupid things on his behalf. So you might have seen then that that got stayed and you're thinking, oh, great. Right. So, you know, justice delayed is justice today is another example.

0:35:00 Andrew: Trump, you know, I read you all those good words, but he's not going to have to pay a dime. Not true. And I wanted to highlight this because this is the way staying a judgment works in ordinary practice. Right. We always talk about the extraordinary cases. Right. Like, did you go up to the Ninth Circuit and get a special? But here's how it usually works. Federal Rule of Civil Procedure 63 says, at any time after judgment is entered, a party may obtain a stay by providing a bond or other security. The stay then takes effect when the court approves the bond and remains in effect for the time specified in the bond or another security. And local rules of the United States District Court for Southern Florida specify that a party may motion for a supersedious bond, bond, or other security staying the execution of a money judgment in the amount of 110% of the judgment to provide security for interest, costs, and any award of damages for delay.

0:35:57 Andrew: Accordingly, to post the supersedious bond in this case, plaintiff's attorneys are required to deposit a sum of $72,901.67 into the court's registry. So let's unpack that. One of the things that you, you can do when you lose, the and court says, pay $50,000 to the plaintiff, as you, as the defendant, can say, I'm a little concerned that I'm gonna win on appeal, the plaintiffs will have spent all the money and then I can't get it back, and the courtroom say, okay, cool, you can give it to us and we'll hold on to. But by the way, it will continue to incur interest on behalf of the plaintiff if, if you lose on appeal.

0:36:36 Thomas: Sure.

0:36:36 Andrew: Right. So that's that's our way of kind of compromising. And, you know, you have a structured settlement. You want cash now. But to give a shout out to our friend Ben Young, does delay the plaintiffs access. Sometimes courts will say, nope, fork it over right away. But usually, right, you strike that sort of proper balance. You're like, yeah, we want you to be able to appeal, but it's going to cost you. And it's gonna cost you not just the full amount, but here, like local the rules are, it's good cost you the full amount plus 10%, for the interest That's going to run up during your appeal. This is how you stay the effective of money judgment. And I wanted to emphasize that, to just go back to talk about all of the times, you know, where we have talked about extraordinary circumstances. Uh, and again, a lot of those benefited the former president, you, when he was the president, the factthat he's no longer the president has put him on a pretty hefty losing streak. And this, is, is no different. Right.

This is in order to prevent the judgment from going into effect. They've got to put 110 percent of the money into escrow with the court. And then, and then get to lose and pay that out ultimately to the plaintiffs. And again, remember, these are big wigs at the DNC and James Comey and Hillary Clinton.

0:37:04 Thomas: Sure, absolutely.

0:37:51 Andrew: They can wait a year. You know, they can wait six months to to get their money plus interest. And there are lots more sanctions orders coming down the pike from Judge Middlebrooks in the Southern District of Florida. So I am excited about this. But I wanted to make sure, you if you saw something in the news and I thought it was a good kind of teachable moment. So there we go.

0:38:14 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:38:20 Thomas: And now it's time for T3BE. I think I'm on a pretty good streak here. Let's see if I can continue it.

0:38:25 Andrew: All right, Thomas. Peyote Church plans to hold a lottery to raise funds for a parsonage, but lotteries are illegal in the state.

0:38:28 Thomas: Here we go. Switcheroo. I thought it was going to be peyote, but now it's about lottery. Okay. Let's see.

0:38:37 Andrew: Yep. Has Peyote church's freedom to practice its religion been unduly burdened? A. No, because lotteries are illegal for non-religious reasons. B. No because loteries are also illegal for non-religious organizations. C. Yes, because the federal government should not be involved. Or D. Yes because of the 10th Amendment.

0:38:59 Thomas: Oh my God. By the way, the bar, if they really wanted to F with me could put D yes, because of the 10th amendment in every question, like literally that could be, and I would always be like, is what is, uh, maybe I don't know what's in there. No idea. What year did this book come out?

0:39:12 Andrew: And again, I was Just going to say the book was released in 2021. So that means that the questions were were compiled in 2020, you should you should answer based on the status of the law as of 2019, let's say that it

0:39:22 Thomas: So should I answer based on the idea that there's still some sort of freedom. Okay. If I'm going based on, you the old Scalia decision about the, you know there's that actual peyote case, there's lemon, there's all, man, I don't know. I don't know how much this right went away as of 2019. Let's see. Okay, let's see if can figure this out. Peyote Church is going to hold a lottery to raise funds for a parsonage, but lotteries are illegal in the state. Has Peyote Church's freedom to practice its religion been unduly burdened? There's nothing about, in this hypothetical, there's nothing About whether or not holding lotterys is like a religious thing for them, which is interesting. It's not like, hey, Peyote church has a long tradition of holding lotteries. It's key to their faith, which I think would be more analogous to the actual peyote case, maybe.

0:40:19 Thomas: But then again, I also feel like that's... Last time we had Andrew Seidel on, it was like, no, that was also about unemployment benefits or whatever it was. So who knows? But anyway, this just sounds like, can a church break the law because it's church? Honestly, I mean, I think in 2022, the answer is yes, the church can just just break a law because it's the church and nobody can do anything about it. But also if it's peyote church, no, because that's not Christians or maybe it is, but okay. Let's answer this in a sane universe.

0:40:46 Thomas: That's true. Has peyotes churches freedom to practice its religion been unduly burdened? I'm going to say that even in 2019, this, the answer has got to be no. I just don't think that could possibly be right because of the fact that it's, they're just breaking the law because they're, there's no connection to like other people get to do it, but they don't, or, you know, like the, playground rubber tire thing. There's no, none of that. There's No, like this is key to their religion. So that's why they're doing it. I think this is just a no answer, but let's see. Let's see a no, because lotteries are illegal for non-religious reasons or B no, because loteries are also illegal for Non-Religious Organizations that I think that's going to be honestly the key there. It's going to be one of those two.

0:40:44 Andrew: Says parsonage, all

0:41:31 Thomas: The other one, C, yes because the federal government should not be involved. What? The federal government, what? So I think that's trying to trip you up with the, lemon with test think that's for people who think the lemon test still exists and remember that entanglement clause. I think that's what that is. But the federal government, to my mind, is not even involved in this because it said lotteries are illegal in the state. I mean, I guess we could assume that maybe the case got, you know, federal, I don't know. But anyway, I think C is just a distractor. D, yes, because of the 10th Amendment. I just have to dismiss that. I don't think that's anything. I think it's between A and B. I think that'S the key to the question here. So parsing that, parsing, parsonaging that, no, because lotteries are illegal for non-religious reasons. I actually think it's B, no because loteries are also illegal for Non-Religious Organizations.

0:42:19 Thomas: I think that's because it's, it's a law that has nothing to do. It's everybody has to follow it. It's not specifically targeting religions or anything. I think this is a good little trick question with a, but I don't think it matters why the lotteries are illegal. I think it matter. It that they're illegal for everybody. So I think between A and B and my answer is B.

0:42:39 Andrew: Right, and if you want to play along with some machine, how to do that, just share this episode on social media, include your answer, your reasons therefore, we will pick a winner and shower that winner with never-ending fame and fortune. Fame and fortune not guaranteed. Oh,

0:42:51 Clip: And thank you, Let's go!

0:42:52 Thomas: And now it's time to thank our new patrons at patreon.com/law. Why don't you start us off, Andrew?

0:42:58 Andrew: Yeah, thank you to Ajido82, to zjbxwbmn, and if you just want to randomly bang the keyboard while giving us money over at patreon.com/law, I will read out your random keystrokes. To Aaron Miller, Andrew Falkowski, John Rice, Real Social Skills, gosh I could use those, Jacob White, S Tokyo, Tennessee William, oh wow, I'm not hurting anybody, love that, good, hope that's a GAM reference, Linda McGuire, Alan Denko, Jen Suran, Zach Bowman, to I passed the CA Bar thanks to T3BE. Wow let's let's find out that's, that's amazing, and we love hearing, hearing when our listeners pass the bar, you graduate law school, get a big law job. Please continue sharing that stuff with us. Congrats to Pass the CA Bar. To Jake Kolojejchick, and I apologize if I butchered that.

0:43:38 Thomas: Oh, can I do that? That's awesome.

0:43:58 Andrew: And Catherine D. Take it away, Thomas.

0:44:00 Thomas: And thank you to Kevin Pratt, Daisy W., Susan Churchill, Mandy Mallott, Billy Whitehouse, The Cheshire Yeti, Richard Boyd, Julie McDonald, Curtis Werner, Adam Ricci, Dear Santa, I've been very good this year. For Christmas, I would like a special master and the unredacted search warrant. And Diana, Looming Dementia, James Tyler Wright, dean gaudet, and Walter Parker. Thanks so much, new patrons. Hope you enjoy all the goodies. And even more now, I guess, ad-free four shows a week on Patreon. Never a better time. Go join up patreon.com/law. And that's our show, Andrew. What do you know? Another quote unquote short episode. That is the length of a normal episode. So, we'll continue to over-deliver until morale improves.

0:44:47 Thomas: But no, that's great. And we'll see you tomorrow for a full-length episode. See you then.

0:44:52 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.

0:45:26 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.

0:46:02 Thomas: All that would serve to funk all that function. When, what is the word? All that was served to function was what? That's not it. All that would function the fuck all that.

0:46:10 Andrew: Would serve to to prove

0:46:11 Thomas: Yeah. All.