OA659: Trump Is Ffffffffffbleeped

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 659. I'm Thomas. That's Andrew. How you doing?

0:01:23 Andrew: I'm fantastic, Thomas. How are you?

0:01:25 Thomas: Um, good. A little peeved, a little peeve. Tech issues. So, all right, everybody. It sucks. Apologies that the last episode for normies, again, patrons, you're just, I would edit this out for patrons, but maybe they would like to hear what they're, the tech problems they don't have to deal with. I don't know. I am not sure. Sure. Ads that allow us to do this four episode a week thing, and I'll make that work. The technology is cool. It's dynamic. It'S whatever, but it's also something I have zero control over. And for some reason in the latest episode, the Liz Dye 658, it decided that the The second ad slot was just the end of the episode. There must've been, I, if I had to guess, maybe there's some problem with a file that was being delivered. I don't know. Who knows what the technology is. I, all I can do is submit a help ticket. Sorry about that. I don't, it sucks not having control over everything, you know, cause like I, I take great pains to, uh, to make sure the show's delivered on time and, you know, without, without these problems.

0:01:30 Andrew: Yeah, yeah, yeah

0:02:24 Thomas: And then it's like, oh, this is something I can't do anything about. But the only thing we could do is we just went ahead and released, uh. An ad-free version on the main feed. And so, you. If we don't get ad revenue for one episode, whatever, it's more important that people actually get to hear, you know? Like the episode that's slightly more important to me. So there you go.

0:02:41 Andrew: Yep, Yeah. No, I did, it was the obvious, obvious, uh, solution, so we were really happy to, to get that out to you,

0:02:47 Thomas: And, and kind of while we're in the, I don't know, announcement shooting the S uh, phase of show, I heard on cleanup, you talked about the Twitter files thing. Good stuff there. I wanted to add one little thing to this Twitter files thing and it's such frustrating to deal with of these anti-woke people. Like the fact that the world's richest man, although no longer, I think he just lost that because he's actually terrible businessman.

0:02:49 Andrew: Barry.

0:03:06 Andrew: Because of because of what we said, yeah.

0:03:07 Thomas: Yeah, exactly. So Elon Musk is no longer officially the world's richest man. Weird. Is, is, is that part of his master plan, though? Is that somehow part of a greater plan to become even richer, or is he just not good at business, Andrew? I don't know. We'll, we'll, we'll have to see. It's really scary, scary, and bewildering to see this like pattern of it's like a mind virus, once people, once, like, Elon and, like, Glenn Greenwald, once they go all in on that, nothing, it's like they can't be reasoned with. It's really scary because you have the world's richest man tweeting stuff that's so stupid that, like, my five-year-old knows it's wrong.

0:03:41 Andrew: Right.

0:03:41 Thomas: You know, we don't have a First Amendment right to see Hunter Biden's penis. That's not how anything works. And I don't believe anyone could be that stupid. That's what scares me about the whole thing. A lot of the issues are silly and whatever. It's dumb. The content is dumb. But, if the world's richest man can fall for it, People can just fall for this. And the thing I want to say, the reason I bring it up is I Matt Taibbi is another one where I'm like, where did this come from? Because as you said in the show, he started off, he seemed to be, you know, he was kind of a leftist bro type, like a little bit better than everybody in his leftism, I thought was my perception of him for years.

0:03:43 Andrew: Yeah. Yeah. Yeah.

0:04:22 Thomas: But, you know, now he's literally doing the work of the fascists. Like, when you're getting on there and you are tweeting, hey, look at all these times the Biden people asks for Twitter to take something down, oh, also the Trump White House did, and you're not even mentioning what the Trump White House asked to take down, you're, that's, horrible journalism, that's just partisan Hackery.

0:04:25 Andrew: No, That That, a complete agree, uh, I mean, I want to go one step beyond what you've said, which is, you know, that was the thread number eight, right? In which, you post a whole bunch of links that are in an email, so you can't click on it. And you're like, see, here's the Biden campaign sending a whole bunch of lengths, and look, the response was handled, right.

0:05:02 Thomas: Yeah.

0:05:02 Andrew: And And Elon Musk even tweeted after that handle. Well, that, you know, there's your smoking gun right there. And so, you Know, the first thing that any reasonable journalist does is say, oh, let's see what we can figure out from the way back machine or archive.org as to what those links were in every single one of those was Hunter Biden's penis.

0:05:15 Thomas: Did Totally. And what I was going to say is, what, if you ever see this happen, somebody like Matt Taibbi or Glenn Greenwald or whatever goes from, you ostensibly on the left to absolute culture warrior for anti-woke, wokeness, there's about a 94 percent chance it's because they have some horrible abusive thing in their past and they are going to the side for which that's okay. And I didn't even know this about Matt Tybee, but he has a very disgusting misogynistic past that I didn't know about, like, this, there's this article in the Washington Post that's like, this book that he wrote with a guy, this is a lot of rapey stuff, it's, I'll link it in the show notes, but it just, it just fits.

And Glenn Greenwald, who there's very interesting things going on there with his partner that are interesting. I feel like that's good bet is all I'll say. It's a safe bet that if you ever see this transformation, it's because if you're a shitty person, if you're abusive or whatever person, whatever it might be, it's always free to go over to the side that has no standards and actually embraces horrible people. And so if you're ever wondering, that's likely what's going on. I'm just saying that's likely

0:05:51 Andrew: Oh, wow. Yeah. Yeah, right,

0:06:25 Thomas: What it is. And with that said, let's get onto a very action-packed show.

0:06:26 Andrew: Right. Right. One One more announcement. Announcement. Right. Senator Rafael Warnock wins in the Georgia runoff. Good, good job, everybody. Right. I And I But

0:06:35 Thomas: Yeah. Good stuff. Who would have thought going against such a great candidate, it's amazing that he was able able to defeat the next Barack Obama what's his name?

0:06:45 Andrew: Look, I see people saying that, right, and saying like, you know, you only skated by by three points in a, you know, in a runoff against, uh, and it's like, this is Georgia, People, right? Like, and it reminds me of, I, I posted this, you know, for Virginia 15 years ago, right? In the 2000 presidential election, right, Virginia was a larger margin for George W. Bush than Ohio, right? I mean, you know, it was like that's where it was, right. And so, it takes time when a state is going purple and then blue to sort of put it in your column. And if you're thinking Biden winning by 10,000 votes in 2020 against a monster, right, means that Georgia is now a safe Democratic state, you're insane. We're going to continue. It's going to be our hardest state to work every single election cycle for the foreseeable future. And, you know, that just means we have to work twice as hard there.

0:06:53 Thomas: No. Yeah.

0:07:43 Andrew: Right. We know Republican. Right. They just reelected a Republican governor by an eight and a half point margin. Passed sweeping voter restriction laws in in 2021. So, you know, we know.

0:07:54 Thomas: If you're judging any election in absolute numbers terms, that's silly. It has to be judged based on relative terms to what the population is, what the previous vote totals were, because we know that if the choices are are everybody gets a free puppy and everybody gets diarrhea. This country is 51, 49 or 50.1, 49.9. That's what the country is. Cause I don't know why. Yeah.

0:08:16 Andrew: For puppies. Yeah, right. Right.

0:08:19 Thomas: Sometimes for puppies, sometimes for the diarrhea actually. And sometimes, yeah,

0:08:22 Andrew: Is they don't always advertise. Hey, we are giving everyone, you know, explosive diarrhea from both ends forever. Even when they do, we we narrowly squeak it out. Anyway, good that's a long winded way of saying good job, citizens of Georgia.

0:08:35 Thomas: Yeah, and I know we've probably talked about a little bit, but that 51 senators matters actually quite a bit, quite a a bit so that's awesome also Law'd Awful Movies is coming at you pretty soon everybody looking for that we're recording this weekend can't wait and And so let's get on with the show.

0:08:40 Andrew: Oh, a huge, huge amount. Yeah. That's awesome. Yeah.

0:08:53 Clip: Down the law, down the law.

0:08:57 Thomas: All right, Andrew, first up, and you've got a lot packed in here. We'll see how far you get. Oral arguments in Moore v. Harper. This is, I think, whether or not we want to have a democracy, I believe. Again, puppies or diarrhea in the court. If the country is 51-49, the court is actually 6-3 Diarrhea. So that's uh, so, so let's apply that lens to this, whether or not we should have democracy case.

0:09:13 Andrew: Yeah. Right. So Moore versus Harper is ostensibly about redistricting in a North Carolina congressional district. And it is actually about democracy itself. We did a deep dive on this episode 618. So if you haven't listened to that one, or if you need a refresher, go back to that. The argument is that the Elections Clause of the Constitution, Article 1, delegating powers to Congress, says that the manner of federal elections shall be, quote, "prescribed in each state by the legislature thereof," end of quote. And uh, politically motivated evil fascists, okay.

0:09:57 Thomas: Uh-huh.

0:09:57 Andrew: Let us be clear, there is no good faith argument for the argument that that I am about to to articulate to you, other than Republicans need to subvert democracy because they are a white party, and the future of this country is not white only, and therefore they have uh put long-running plans into place to gerrymander congressional congressional districts to try and restrict the amount of voting that goes on to keep themselves in power because they are in perpetual losing position.

And rather than give up their pro-white policies, they have decided to try an attack democracy itself. So the argument is, and I swear to God, this is the entirety of the argument, and I'm not making this up, that because the elections clause could have said prescribed by each state, without mentioning the state legislature, that means that they deliberately inserted the word state legislature and, more importantly, that that evidence is a specific intent that only the state legislature gets to weigh in, that is to shut out the state judiciary and executive branches. In other words, to give plenary power to state legislatures in the, quote, manner of federal elections. If that sounds absolutely bonkers to you, it's because it is. We, we have unambiguous evidence in the First Amendment to the Constitution itself, right? So the first amend to the Constitution says Congress shall make no law infringing freedom of speech, because Congress is the only body that can make laws, right? But

0:11:30 Thomas: Yeah.

0:11:31 Andrew: Nevertheless, you can sue, sue the executive branch. You can sue your local state college, right? You can sue anybody that is acting as a government agent who is trying to restrict your speech. And there is no person anywhere on earth that you can take seriously who would say, "Oh, well, that's not Congress, so therefore" you have no claim. And in fact, most of these conservatives making this argument style themselves as free speech absolutists because they also want to, you know, have Nazi content everywhere.

0:11:49 Thomas: Yeah. Because They're Just lying. Yeah.

0:11:59 Andrew: Right, well that too, but because So so we know. So the same thing, shall be prescribed in each state by the legislature thereof because that's the legislature that passes laws in the states. It's the same writing style as the First Amendment. And that is bloody obvious to anybody who looks at it.

0:12:17 Thomas: They're Is The First Amendment, still Good Law. Does that hold up? So

0:12:19 Andrew: So far, so good. Yeah. This is asking the Supreme Court to interpret a provision of the Constitution. And when you're talking about the text of the constitution, unless it is clear that a subsequent amendment modifies that text, there's no check on what it says. Right. So in other words, if if if Article 1, Section 4 of the Constitution said the manner of federal elections shall be prescribed in each state by a rock, paper, scissors tournament or, you know, shall be proscribed in each State by everybody swinging a five pound kettle at each other until only one person remains standing. As dumb as that is, we'd be stuck with it. Right. Like that's what the Constitution prescribes. Right? Right. It would be like arguing. Sometimes people will ask this question, you know, could you bring a discrimination suit against the Constitution for saying that the president must be 35 on the basis of it? No. Right. Like the Constitution could say the president muss be six foot four and like we'd be stuck with? It. Although they wouldn't have said that in 1789.

0:13:09 Thomas: Yeah. I mean, it could say black people are, you know, I don't even have to finish the sentence. It could have said anything about black people and then we'd be stuck with it until we amend it.

0:13:18 Andrew: Right, right, right. Exactly. So Until we amend it, that's that's correct. So that's why this is uniquely dangerous. So the argument is that state courts can't affect the, quote, manner of federal elections. And I'm going to describe sort of both the minimalist and the maximalist versions of this argument because I want to give some sort of hairline. I talked about the worst case scenario in 618. Spoiler alert, I think the oral arguments went well for team "let's not have fascism forever." I'm gonna describe that. It's it's rare that I listen to oral arguments and it's even rarer still that I tell you good news from the Amy Coney Barrett, Brett Kavanaugh wing of the court. But I am going to tell you that. So, you know, this is a good news episode. But but but again, all good news coming out of the Supreme Court is tempered by the fact that it's a monster Supreme Court.

0:14:12 Andrew: So, let's kind of explain. The argument that courts can't make prescriptions, that state courts can't affect the manner of federal elections, would have, if true, validated the nonsense Kraken lawsuits in Pennsylvania and Wisconsin, right? Right. So in other words, think about that.

0:14:27 Thomas: Yikes. So in other words, it would have made Sidney Powell right about something.

0:14:29 Andrew: It would it would have made Sidney Power right about a thing. And here's the thing.

0:14:32 Thomas: Jeez. That's, that's how you know they're wrong.

0:14:35 Andrew: Here's the things that would have been them right about. Right part of their argument was in Pennsylvania was the Supreme the Pennsylvania Supreme Court stole power away from the Pennsylvania state legislature by saying, hey, it's a pandemic. So we're going to apply these emergency rules and allow people more leeway in early voting, allow people more time to vote and allow more time for processing ballots. Because, by the way, Republicans have also effed with the postal system. And so we want to hold open the deadline for ballots to arrive. And the argument is, nope, that's the court affecting the, quote, manner of federal elections. And so despite the fact that the Pennsylvania Supreme Court was like, yeah, no, man, we we said that.

0:15:21 Andrew: That's fine. Go away. That would have invalidated that it would have said, nope, the Pennsylvania Supreme Court is not allowed to tell the Pennsylvania state legislature how it may conduct elections consistent with the Pennsylvania Constitution. And if that sounds bonkers, Can't be. If it sounds bonkers, let me go one step further, because as far as I can tell, it would also prohibit a thing you see every single election at every single level? Right. Particularly during presidential elections, which is, X group has filed for an emergency injunction because we're in Smith County and the lines were six hours long and all the voting machines went out. Right. And so therefore, we want to keep the polls open for another two hours to let people in line vote. Vote. Right. Or we want an order that says, yeah, it closes at nine, but everybody in line will get to vote no matter how long, as long as you're in line by nine o'clock. Right? And courts issue those kinds of equitable relief during elections all the time.

0:15:38 Thomas: Yeah. That can't be right.

0:16:26 Thomas: Yeah,

0:16:26 Andrew: It Right, benefits Republicans in Republican areas. It benefits Democrats in Democratic. It's just a principle of democracy. Hey, if there's a weird condition that nobody thought about, you can go to a court and get relief against the side that wants to play by the rules because they're trying to cut that down. And again, let us be clear, this sometimes benefits Republicans, particularly as we move towards a model in which same day voting tends to go more Republican because Democrats are better at organizing for early voting.

0:16:26 Thomas: I don't even know if it makes any sense to say it's a thing that benefits Republicans. It's just a basic tenet of things, like in the same way that anything could benefit Republicans or could benefit Democrats. I mean, the fact that courts can enjoin, right,

0:17:02 Andrew: But think about it. No, but let's not. I don't want to be disingenuous here. The fact. That what happens is if, if you are a Democratic official in a heavily Republican county, you are incentivized to say up nine o'clock time to close the polls, right?

0:17:24 Thomas: I'm just talking about underlying principle the here. I'm in the factthat a court can enjoin this process.

0:17:27 Andrew: I'm saying, I'm saying that it can right.

0:17:29 Thomas: The fact that courts could have power over this. Imean, OK, let me let me make

0:17:30 Andrew: Yeah, I'm saying it can benefits it can benefit Republicans, and it does every election cycle.

0:17:33 Thomas: Sure. Yeah, right. Yeah. It could could benefit. I'm just saying, I'm just saying it seems like such a basic tenet of things that it's kind of weird to even say it can benefit. Like, doesn't this apply in a million different ways every day? You know what I mean? That's all I'm saying. Like it's such a basic, it's like saying, well, due process can sometimes benefit Republicans. It's like, well yeah, I mean, I wouldn't even think of it in those terms. It is just a thing that should be of part the system, right?

0:17:38 Andrew: Yeah. Okay. Yeah.

0:18:02 Andrew: Fair, yeah.

0:18:03 Thomas: Me make sure I'm not misunderstanding. This feels to me like Like to put it in really, I don't know, colloquial terms, this feels to me like something, my job statement, let's say at work says, I am in charge of the TPS reports. But then my supervisor is like, hey, you're doing the TPS reports wrong. And then I'm like, Hey, let'S check our duty statements. Mine says TPS Reports. Yours doesn't say TPS Reports. You have zero authority over me in this issue. I can do whatever I want. It's like, well, no, your supervisor might always have inherent the authority to like comment on or, you know, criticize what you're doing, right? Isn't it that kind of what we're talking about here with the court?

0:18:42 Andrew: That is really an excellent, excellent transition to the difference between the maximalist version of the independent state legislature theory and what I'm calling the minimalist version. And the reason for doing this update, right? So maximalist vision is that, that is that they have plenary power and yeah, courts lack jurisdiction over legislative determinations that affect the manner of federal elections, including appointing federal electors, right, which is why this is so dangerous. It's why we did Episode 618. But there is a more nuanced and still terrible position that developed during oral argument, and that there is a chance could be the Supreme Court ruling. So it's why I particularly want to cover that.

0:19:27 Andrew: But yes, the maximalism says, right, well, it says state legislature. And then you ask, OK, but what if Thomas sucks at his TPS reports? Right. And here's what their answer is. No, their answer isn't Nothing. It is on page 18 of the petitioner's brief. They say, "The exclusive nature of plenary power of the state legislature's authority is also confirmed by the single textually enumerated qualification that the Constitution does include: Congress's power to, quote, 'make or alter such regulations as the state legislatures may prescribe,' which is in that same clause. This qualification shows that the framers considered the possibility that state legislatures might exercise their power in inappropriate ways and, in characteristic fashion, provided a check against any potential abuse: congressional review." So, in other words, only everything the state legislature does is immune unless Congress passes a law stopping it. And of course, they've broken Congress. So that's an empty threat.

0:19:36 Thomas: Nothing you can do. Okay.

0:20:25 Andrew: But that's what they would say. You know, if you said, all right, Thomas sucks at his job. You're saying he's got no boss. No, no, no. Congress could pass a law.

0:20:33 Thomas: Yeah. The CEO of the company

0:20:35 Andrew: Right. The CEO could Yeah.

0:20:35 Thomas: Could comment on his TPS reports. And

0:20:37 Andrew: And it would be like the CEO can if he gets 60 percent of the shareholders to jump on one leg. And, you know, right. Exactly. So if the state legislatures declare something, Congress can fix it. But but not the states themselves. Not even if it is a legislative requirement in the states ourselves, which is bonkers. Right. Right. We're upholding what the state legislature does now and not what the state legislature told itself to do a week ago. Right. Like it's just insane. And if that seems crazy to you, that's the exact fact pattern of this case. Right? The North Carolina General Assembly enacted a statutory scheme that governs legislative challenges of this kind. Actions challenging the validity of redistricting maps are heard by special three judge panels. If a court concludes that a map is unconstitutional, it must issue an order describing every defect found and give the legislature at least two weeks to remedy those defects.

0:20:41 Thomas: Yeah.

0:21:31 Andrew: If the legislature fails to do so, the court may impose an interim districting plan for use in the next general election only. And that's what happened here. So, in other words, this doctrine would say whatever state legislatures do that affects a federal election is unreviewable by the courts and unreviewable even if they're not following the rules they've set down for themselves. Right. This was a law, this was all that, anyway, okay, so that's nonsense.

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0:25:36 Thomas: I know we've covered this, but the fact that this is even being heard seems really alarming to me.

0:25:41 Andrew: Real bad, yeah. It Should, it should be really alarming to you. So, uh, I also want to pass on that the, uh, arguments, just because of how ridiculous this was, that what one of the arguments was, well, you know, uh, that this this was just made up because state court, and here I'm quoting from page 25, "state court decisions declaring congressional maps unconstitutional on the basis of any substantive state constitutional restriction were virtually unheard of until the modern era." That's supported by footnote one, and footnote one says the first such case that petitioners' research has discovered was decided in 1932. And it's like, hmm, I wonder why cases about federal elections were not really being heard until the 1930s. Could it be that women didn't get the vote until 1920 and that federal Jim Crow laws were doing a plenty good enough job of disenfranchising black voters at this time?

0:25:43 Thomas: Yeah.

0:26:36 Andrew: Is this right, just made me so angry when I read it. It was like, well, you know, I mean, it's only been a hundred years that we've been reviewing this. So, you know, all the time before then, when women and and non-white property owners couldn't vote, the courts didn't challenge things at all. And it's like, right, because you got what you wanted anyway, it's just ridiculous.

0:26:52 Thomas: Yeah. Because white supremacy. Yeah, I don't know.

0:26:54 Andrew: Right. Exactly. Um, so, uh, good news, maximalist version seems dead on arrival, thanks to Amy Coney Barrett. Um, her questioning during oral arguments were, um, know, essentially line-drawing questions, How right? Are you going to determine between what is a substantive restriction on elections and what's a procedural restriction on election? In doing so, I think she articulated what I'm now calling the minimalist view, which is to say that state courts can stop the legislature, right—that is, act negatively—but not impose new manners, right. Right. So you could throw out a district and say, OK, this district is unconstitutional, you're going to use the previously drawn district. But you couldn't do what we've seen, know, again, you for example, courts in New York and California do, that that essentially handed the House of Representatives to the Republicans.

0:27:48 Andrew: Right. Like this was a benefit to them to say,OK, this is gerrymandered. We tried to give you another crack at this, but we're just going to appoint a neutral commission now to draw a neutral map. Right. So that would be the minimalist version of the independent state legislature doctrine would say can review. They can say, Thomas—so your boss could now come to you and say, say, Thomas, your TPS reports suck, redo them.

0:28:12 Thomas: Okay.

0:28:12 Andrew: But your boss couldn't come to you and go, Thomas man, every time I ask you to do your TPS reports, you're terrible at it. Just give them to me. I can do them in about five minutes. Or I'm going to give this to your assistant who we're then going to promote over you probably Probably in a couple of right. Like they couldn't reassign that

0:28:23 Thomas: Okay. Yeah, that doesn't seem crazy to me because it's like, well, yeah, it is in your job description. So

0:28:37 Andrew: I thought it might not. And so I'm going to ask you a version of some questions that were asked by both Ketanji Brown Jackson, who, by the way, impressed the hell out of me in this oral argument. Boy, like, is she smart, um, and Justice Kagan, um, Kagan and Jackson asked questions like, "But what if the legislature redraws the map on November 1st, right?" And, you know, and that's when the ruling, and they're just, there isn't time, right? You know, what do, what, "What if it's after a census? Right. And so you can't revert to the previous district because the previous district now has twice as many people in it." Happens in those kinds of situations?

0:29:12 Thomas: Essentially, what If this is like crunch time and TPS report land? And the only one in the office basically is the supervisor, and it's like, well, yeah, then he should be able to just do the TPS reports for you

0:29:20 Andrew: Yeah, that's that's a that's exactly right. Right? Like the the distinction of, yeah, Yeah. Your boss can tell you to redo the T3B. There may be some real world similarities here with yours truly during TPS. No. Right. Like your problem with saying that your boss can remand it back to Thomas is but Thomas is on vacation. OK, Well, now, sorry, Thomas is is on vacation for two weeks. He's hiking the Himalayas. Uh, nobody else can do the TPS reports.

0:29:30 Thomas: TPS reports, yeah Yeah. I basically, I turned in a bunch of folders that said TPS report. I was like, "All right, that's all my work, I'm on my vacation." And And then you open it and it's just like nothing. It's just, I'm like, see you later, suckers. And then it's like, well, all we can do is tell him to do it again while he's in vacation. That's not going to work.

0:30:03 Andrew: It's a pop-up book with a middle finger. Yeah. Yep. So You know, one of the Sotomayor questions was, uh, you, how do you draw a line, uh, and she called that a logical morass, uh, to which, uh, Justice Amy Coney Barrett said that that distinction would be notoriously difficult lines to draw. You know, I hate reading tea leaves. Um, but essentially, I, I think that, you we're looking at, uh, three groups here. Uh, Thomas, Alito, and Gorsuch are Team Fascism Forever.

0:30:38 Thomas: Would you say that they're showing their logical morasses?

0:30:40 Andrew: Yes. Jackson, Kagan, Sotomayor, and probably Roberts are on the Team State Constitutions Come First, right? So when I said Katanji Brown Jackson was, brilliant, I, she asked the question of, "Don't, um, state constititions predate the right, aren't state sovereign entities that that formed the Constitution themselves? How can the U.S. Constitution turn around and tell a state that its own state constitution doesn't matter?" And there was no good answer to that, from the right, petitioner's side. Let alone, you know, as I talked about, telling a state legislature your own pronouncements don't matter. That. And then we have Kavanaugh and Barrett somewhere in land, I think, wanting some version of a minimalist independent state legislature doctrine.

0:31:33 Andrew: And both Neil Catchall, who was the lawyer who was engaged to appear on behalf of the non-state parties, and Solicitor General Elizabeth Prologer, who was there on behalf of the Biden administration, said, "Sure, if what you want to say is that the state courts get to rule, but there is still some role for U.S. courts, i.e. you guys, to come in and overrule state courts, state supreme courts, on completely made up grounds in order to, you know, hand the presidency to a Republican who has lost Florida if recounts continue." Not that they quite said it that way. Fine, like, we're gonna, we're gonna lose if we don't say you have that power, and you arrogated that power to yourselves in 2000 anyway. So, um, you know, does us no harm to agree to it, I guess.

Uh, but they both said the standard should be, uh, this is Prelogger's, uh, words, quote, "sky high," end of quote. So that's what I think we're going to get. That, um, could manifest it in any number of ways. What I'm, is a super fractured opinion in this case that is 4-2-3, right? So that is a plurality, Jackson, Kagan, Sotomayor, Roberts, opinion that says this doctrine is nonsense, that gets a separate Kavanaugh-Barratt that says this has some weight, but we need to fashion it consistent with Bush versus Gore, and then a Thomas Alito-Gorsuch opposition that says fascism forever.

Ever could be five four or six three endorsing minimalism, could be five four six three rejecting, uh, the independent state legislature theory in its entirety. Like, this is going to be a really, really interesting case to watch. And it will be, you know, can Roberts and, can, you know, Jackson, Kagan, Sotomayor, can, can they fashion a coalition out of,

0:33:21 Andrew: You know, that includes Kavanaugh and Barrett as, this is a step too far even for you guys. So we're going to be watching this, obviously, in the spring. Lots of people are concerned about it. And I wanted to articulate kind of what happened at oral argument, even though, I'm on you team oral arguments don't matter. Think it does in this case. And I think my concern that this was going to be 5-4 the other way been alleviated somewhat. So, you know, we'll see.

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0:35:41 Clip: We got it!

0:35:47 Thomas: Time to get through a whole bunch of good news bullet points as fast as you can, Andrew. This, lot of people may have seen the headline that the Trump Org was found guilty. There's some other various and sundry good news. Why do you have this segment entitled in the spreadsheet "Trump is beeped"?

0:36:08 Andrew: This is just, if you are on team, "Let's hold Donald Trump accountable for being a criminal," this has been a great week. So let's, go through these as quickly as we can. There will be more detail in the show notes. So first off, last week we talked about the 11th Circuit Judge Cannon, right? Right. Judge Eileen Cannon, Federalist Society weirdo, for her unprecedented invocation of equitable slash anomalous jurisdiction in a case in which no party had even alleged that there was a violation of their constitutional rights, let alone wanton disregard of their constitutional rights, and vacated the order appointing Special Master Raymond Deary and ordering the court to dismiss the case for lack of jurisdiction.

0:36:55 Andrew: And as we pointed out, that mandate was stayed for seven days to give Donald Trump time to petition the Supreme Court for relief, which we said the Supreme court was not going to grant. Well, I think Donald Trump's lawyers persuaded him that the Supreme Court was not going to grant it because he has not filed. So I have this as no appeal asterisk because this would not. I mean, you know, who knows? They've done dumber stuff than

0:37:11 Thomas: Wow. Huh? Yeah. Well, I imagine Judge Cannon might just file it for him. Like, should I just be like, I'm now the complainant?

0:37:22 Andrew: It's possible it Be. They have done dumber stuff than this, but right, uh, by the ordinary rules of the legal profession that mandate is going to go into effect today, one plus seven equals eight, as we record it, uh, and, uh, that lawsuit should be gone, no special master, dissolved, uh, and the DOJ can can go back to using all of the documents that it lawfully collected

0:37:47 Thomas: Jeez, we didn't have to dissolve him. That sounds a little harsh. No! Thanos.

0:37:48 Andrew: Yeah Yeah, exactly, like in Who Framed Roger Rabbit, yeah, in

0:37:55 Thomas: Seems really harsh, but okay.

0:37:56 Andrew: The in the dip. Okay, so, uh, that's good, point number one, right, unambiguously great, point number two, uh, as everybody now knows, you've seen the headlines, the Trump Org was convicted.

0:38:08 Thomas: Yeah, so is the organization itself going to be in an orange jumpsuit? You know, I know organizations are people, my friends. Who is this bad? What does this do? I see it and I think, who actually gets punished for this?

0:38:08 Andrew: Yeah, well, Let's talk about the implications with respect to that, because if you're asking on the actual punishment, this is 17 counts. Right. So, you know, that's an awful lot of guilty verdicts. It will probably add up to $1.6 million in penalties for the Trump org. And if you say Donald Trump steals more than that from the White House on a daily basis, even now, I would not disagree with you. I get it. I have been critical. This is the original Cy Vance prosecution. And as the second it was turned over to Alvin Bragg, I have been critical of this, in particular of the ridiculous sweetheart deal that was given to Allen Weisselberg in connection where all he had to do was testify, quote, truthfully. Folks sort of said, well, you know, he can't testify truthfully and, you know, not implicate Donald Trump.

0:39:09 Andrew: Well, shocker, he testified and did not implicate Donald Trump and did exactly what I predicted he would do, which is the I really abused Donald Trump's trust here. And I just feel terrible about that. And, you know, there is zero chance Alan Weisselberg is going to be indicted for perjury in connection with that. And Alvin Bragg was making the rounds. He was on the various NBC shows, MSNBC shows last night touting this victory. So, yeah, that's like all the bad. So if if I'm getting that out of the way early. If right, what you want to say is, is this a real consequence of that, it seems like no, right?

0:39:46 Thomas: I'm sorry, how?

0:39:47 Andrew: So

0:39:47 Thomas: How is it that the organization is found guilty of 170 things, a lot of counts, but that means nothing bad for anyone. I don't understand it.

0:39:53 Andrew: I'm In my view, it does not mean nothing bad, either for the Trump organization or for Donald Trump personally. So you said corporations are people, my friend, which is true with an asterisk. It doesn't put the Trump org in an orange jumpsuit, but it does mean that the Trump organization is a convicted felon, right? A multiply convicted felon. And when you apply for bank loans, when you apply for government contracts, which are all things the Trump org does, you have to disclose those things and they are instantly disqualifying, right. Yes, applicant has been adjudicated guilty of 17 state felonies, uh, is not a great thing to put on your application for anything.

0:40:20 Thomas: It tries to get a job as another organization. Yeah.

0:40:43 Thomas: So it forecloses one particular method of grift for Trump. That's about it.

0:40:47 Andrew: That that's true. That's true, we're gonna talk About, we're gonna talk about it the next segment, uh how that interfaces with the, uh state attorney general's office, headed uh by Tish James, and that I think is very, very, and carries significantly more consequences. So we're going to talk about that. But it but also I think what is really significant here is I want to take a look at some of those counts and talk about what a jury convicted the Trump Organization of doing without. Right. Particularly fulsome testimony from anybody involved. Right? By the way, these are the allegations that are not in connection with the real estate. These are just in connection with paying executives of the Trump Organization. Right. Paying for Allen Weisselberg and other C-suite executives.

0:41:35 Andrew: And again, the allegations are for Weisselberg, his New York City apartment, his utilities, his garage expenses, for fancy private school tuition for his kids and his grandkids, for cars, and for reporting certain kinds of income, for misreporting that income in a way that allowed both the company and Weisselberg and other executives to take advantage of more favorable tax treatment. Right. So, for example, some categories of income were reported as non-employee compensation for Weisselberg, which made Weisselberg eligible to participate in a Keogh plan, which is a kind of tax-deferred plan for self-employed people. And he's obviously not self-employed. You know, the best analogy for this is if I said to Morgan, "Hey, Morgan, I'm not going to give you a bonus this year and I'm going to get your raise for 2023."

0:42:25 Andrew: And by the way, Morgan, as you're listening to this surprise, you're getting both. But suppose I said, no, like no, no bonus for 2022, no raise for 2023. But hey, if we commit some tax fraud together, you can keep some of the proceeds. Right? What Morgan would do would be quit, call the police, call the Bar Disciplinary Committee, call the IRS because she's an ethical and good person. What Weisselberg did was say, yes, absolutely. And from that, you might say, why would somebody do that? And the only plausible answer is because because you've spent 20 years committing all sorts of crimes with Donald Trump.

0:43:03 Andrew: And so what's a few more crimes? That is the only plausible reason. Because, again, think about Morgan. Like, even if Morgan were not an honest person, I think her response would be like, no, man, like, if you want to give me a bonus, sure, law firm, like you write the job.

0:42:57 Thomas: Greed. Yeah, what's a few more crimes?

0:43:18 Andrew: I'm committing tax fraud.

0:43:18 Thomas: Yeah, yeah. How about you commit the tax fraud and use those profits to just cut me a normal bonus?

0:43:21 Andrew: Yeah, yeah, yeah. Yeah. That's that's right. Right. Right. And so the question really before the jury was, was Weisselberg, you know, running rogue or, you know, did he have the company's permission? Right. And the company was like, no, Weisselberg was the, you know, bad actor. Like the Trump's lawyers said, we are here today because of one reason and one reason only, because of the greed of Allen Weisselberg. The prosecution was like, no, a couple more. Right. Allen Weisselberg didn't steal from the company. He stole with the company. The Trump corporation isn't the victim in this.

0:43:33 Thomas: Yeah. A couple more reasons than that.

0:43:59 Thomas: Look, we're not stealing at you. We're stealing with you.

0:44:00 Andrew: Right. I think that the best description of this, I'm going to steal directly from our friend and show contributor, Liz Dye, who wrote it above the law. I'll put that in the show notes. Liz writes, perhaps this was because it seemed to be common knowledge in the organization that several people in the C-suite, including Weisselberg, were getting hundreds of thousands of dollars worth of housing and cars deducted from their salaries before filling in their W-2s. Perhaps it was because no one got fired from the company when the supposed perfidious scheme was uncovered. Indeed, Weisselberg testified that he remained at the company and got a birthday party on the day he supposedly flipped. That's why I had to.

0:44:30 Thomas: Hmm. Ooh. How often is a birthday party critical evidence of mens rea?

0:44:41 Andrew: I know. And perhaps this was because until he became president, Trump himself signed the private school tuition checks for Weisselberg's grandchildren that were later deducted from the accountant's top line salary, um, and again, uh, the way in which that interfaces is Alan Weisselberg, uh, CEO at the Trump Organization for decades, and uh, over the past two decades his income has, his reported income has declined, right?

0:45:08 Thomas: Hmm.

0:45:08 Andrew: So you know, it is pretty rare for you to to be like, "Yep, uh, I "I'm now, I'm, I'm the chief financial officer and uh they've decided" "to pay me" "less."

0:45:12 Thomas: Yeah. You should be able to, at the very least, produce a bunch of documents or emails that's like, hey, we are failing as an organization. Can you take a pic or something, right? Right. Wouldn't there be some like above board reason?

0:45:19 Andrew: Yeah. Right. And there was none of that What it, with what it was, was essentially, you know, like I said, with the Morgan example, like Weisselberg and the Trump Organization clearly, at the direction of Donald Trump himself, uh, conspired to say, "Hey man, instead of me pep, why why why would I pay for your raises" "like a" "chump."

0:45:29 Thomas: Yeah. Yeah.

0:45:44 Thomas: We could make more with a flop than we with a hit. Could

0:45:46 Andrew: Right. Yeah. Let's have the government pay for your raises by preferential tax treatment for all of us. That's what happened. Now, and understanding that that's the background, these charges are charges. So for example, four counts of filing a false instrument in the first degree, right? That is New York Penal Law 175.35 subsection one, class E felony.

0:46:08 Thomas: Not a classy felony, by the way, that came up in a transcript before, I think one time.

0:46:08 Andrew: Uh, no, class E. Yes. Right. Knowing that a written instrument contains a false statement or false information, and with intent to defraud the state or any political subdivision, he or she, that is the defendant, presents it to a public office with the knowledge or belief that it will be filed with, registered or recorded in, or otherwise become a part of the records of such public office. So you look at that. There are three intent provisions in in that criminal code. And, right, they were able to secure a conviction against the Trump Organization really without any specific testimony as to each of those elements. Right? Right. There was some from Weisselberg, but I would argue, you know, fairly ambiguous with respect to the organization. Or falsifying business records in the first degree. A person is guilty of falsifying Business Records in the First Degree when he commits the crime of falsified Business Records of the Second Degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal in the commission thereof.

0:47:11 Andrew: And again, these are examples where the jury had no difficulty inferring specific intent from the conduct and the documents itself.

0:47:20 Thomas: And the birthday parties.

0:47:21 Andrew: Yeah. And so everybody who's been saying, well, you know, like prosecutors aren't going to bring an 18 U.S.C. 793 charge because you're going to have to show, you with intent to keep your records, Trump held. It's like, no, man, we just did that. Yes, and we just did that where the stakes are nothing in penalties, but a proof of concept. We were able to show, yeah, it doesn't matter that it's Donald Trump. Doesn't matter, you know, what you, if there's a MAGA person on the jury? I've been saying that, you know, the Paul Manafort model is the model there. None of those were considerations. There was no problem proving multiple forms of nefarious intent from just, yeah, look at this. Who would have engaged in this kind of behavior without nefarious intent? And the jury was like, right, absolutely.

0:48:07 Thomas: Yeah.

0:48:07 Andrew: So now, is there a way to make this actually have consequences? And that is the Tish James civil suit parallel against the Trump organization. Again, this has no criminal penalties, but it seeks disgorgement and civil penalties of a quarter of a billion dollars. And yeah, think of the Elon Musk situation, that would be real money. Remember also that General James has gotten a court-appointed monitor over the Trump businesses to show when they move money in or out. And that includes the Donald J. Trump revocable trust, which, by the way, halfway through these proceedings, Trump moved from New York to Florida. Right. And so if you're thinking, gosh, I wonder how Donald Trump would like to sneak money out of the Trump org.

0:48:55 Andrew: He's flagged it for us right through his revocable trust. And so what he did was move the Revocable Trust to Florida and then went to the exact same court drop box in Florida, hoping to get Judge Cannon, but instead drew Judge Middlebrooks.

0:49:11 Thomas: Drew any other judge because she is uniquely terrible.

0:49:13 Andrew: Exactly. Exactly right. And Judge Middlebrooks is the judge who is in the middle of sanctioning lawyers for participating in the Trump versus Clinton nonsense suit that we've talked about. The right request to the 49 separate defendants of, hey, you know, you could all get in on this if you want. So, yeah, here's somebody who has neither the time nor the patience to deal with Donald Trump shenanigans who drew the request for an injunction to, to have that court step in and enjoin the attorney general, Leticia, right, James, from quote, "requesting, demanding, obtaining, possessing, or disclosing a copy of the 2020 and 2022 amendments to his revocable trust."

Um, the response came in yesterday, it is delightful, he I'm going to read the opening paragraph which is, "There is no emergency requiring the court to grant the extraordinary relief of a temporary injunction. Instead, there's just a disgruntled litigant, Donald J. Trump, who impermissibly seeks to evade the jurisdiction of a New York state court that is presiding over an enforcement action alleging pervasive fraud and illegality by him and others in the conduct of his New York based businesses," and had issues and has issued a number of rulings that he considers unfavorable.

And then there are essentially five arguments. These are, these are great arguments with one asterisk. I'll tell you the asterisk. But there's no doubt in my mind that the court is going to, that Judge Middlebrooks is going to deny the request for an injunction, and this is going nowhere, so the New York enforcement action will continue to be able

0:50:52 Andrew: Again, this is just a monitor, but they can see whenever Donald Trump tries to move money in or out of his Trump org, organizations, exact that's exact that's a great way, yeah, yeah, you just have to, you just HAVE TO tell them when you're moving money in or out. Talked about this in a previous episode. This is not appointing a guardian or appointing a receiver over the Trump party. That would be the next steps, right? If there is pervasive fraud in and out, James will be able to go to court and say, "Look, sorry, you've got to appoint a receiver." That would be huge because in addition to all of the fines that they could get, the receiver is entitled to get paid out of the proceeds of the organization. And this will be a $2,000 an hour lawyer who will have every incentive to drive around with the meter running. By

0:50:58 Thomas: This is like the business version of having a breathalyzer on your steering wheel. Like, blow into this, and if there's any certain percentage of fraud or grift, you don't get to do it. Sorry.

0:51:46 Thomas: So, podcast co-hosts

0:51:47 Andrew: Attorney General James, yeah, I would be happy to serve as receiver for the Trump org. You should appoint the law offices of P. Andrew Torres. And I promise you, we will do that in an efficient and thorough manner. So the arguments raised are really good, right? Like, so, A, um, the suit names Tish James, but has no personal jurisdiction over Tish James. She's the New York attorney general, she hasn't done anything in Florida, she hasn't done anything specific to injure Donald Trump in Florida.

0:51:47 Thomas: Can't get in on that. Damn. Yeah. Oh, yeah.

0:52:14 Andrew: The only reason it affects Florida is because he moved down to Florida, right? So you can't, you literally have no jurisdiction here

0:52:19 Thomas: You have no power over me. Power over me, power.

0:52:20 Andrew: Right um that is related to argument number two, that the the interstate sovereign immunity, um uh-huh

0:52:26 Thomas: Is that the first time I've thought of that quote in relation to, jurisdiction? Like, Wow. You know what that is, right? The labyrinth. Fantastic. Wow. Do we something for 659 episodes and there's still 80s quotes that we haven't thought of and paired with Lost stuff, just saying

0:52:32 Andrew: There you go yeah So interstate sovereign immunity, and think about this, this is why we don't sue the hell out of Ken Paxton, you in New York every time he breathes, right? That is, states, through their elected officials, are immune from being sued by other states. There is a big exception to this called the Ex Parte Young doctrine, and uh, that's worthy of a deep dive, can't do it here, so I'm just flagging that, because, you didn't talk about Ex Parte, I will, I promise, but not now.

0:53:03 Thomas: You didn't bring up the four chord song so from Axis of Awesome, so there's no way that you possibly covered this, all right? I'm just teasing

0:53:05 Andrew: Right argument number three, preclusion, you already litigated this in New York, right? You asked a New York court for the exact same relief and they said no, stop it, right? You can't continue to forum shop and relitigate the same question over and over again, even though that's all you do. And even though Judge Cannon probably wouldn't have cared. D, the Rooker-Feldman doctrine. And I can't, I'm just going to read you the description from the James briefing, because I couldn't summarize it any better than this. The Rooker-Feldman Doctrine bars, quote, cases brought by state court losers complaining of injuries caused by state court judgments rendered before the federal district court proceedings commenced, and inviting district court review and rejection of those arguments, right? So, yeah, you can't lose in state court and then go into a federal court and go, I want you to take a look at what the state court did. No, get out of here. Then obviously, the fifth set of arguments is, by the way, you know, you suck on the merits, right? Like, there's no irreparable harm.

And court may get there out of completeness, but you don't need to, four previously dispositive arguments when you put them all together, I think, are going to knock this case out. But, you know, it's possible Judge Middlebrooks, you know, in trying to bulletproof the opinion before the 11th Circuit, says, yeah, this is so multiply wrong that, you know, even if we got to the merits, my determination would be that there was no irreparable harm and no likelihood of success on the merits.

0:53:45 Thomas: Uh on

0:54:40 Andrew: So, you know, go home. Bottom line, there is, uh, yeah, the $1.6 million in fines, not great, uh, $250 million in disgorgement would be real punishment for the Trump org, and again, remember, Donald Trump is named personally in the, uh, New York attorney general, uh, civil suit. So So, yeah,

0:54:57 Thomas: That's a lot of Russian high-rise loans or whatever, however he funds anything. All Right. We're trying to squeeze in some more bullet points, Andrew. It's just so much fun these days. What's next? Jack Smith?

0:55:01 Andrew: Absolutely. Love it. Yeah, our first set. So, don't have copies because, you know, they're subpoenas. So I've got to go by the Washington Post reporting. But special counsel Jack Smith has served subpoenas in Maricopa County, Arizona, Wayne County, Michigan, and Milwaukee and Dane counties in Wisconsin. So these are state officials who now have subpoenas from the special counsel requesting, quote, for the period June 2020 through January 20th, 2021, produce any and all communications in any form to, from or involving Donald J. Trump or any employee or agent of or attorney for the Trump campaign or any records or documents that record, summarize, transcribe, annotate, or reflect any such communications with official campaign employees and surrogates.

0:56:03 Andrew: So that includes Bill Stepien, Justin Clark, Jenna Ellis, our buddy Boris Epshteyn, Rudy Giuliani, drunken flatulent, Giuliani's deputy slash hitman Bernie Kerik, outside lawyers including uh still-listening John Eastman, uh, Kurt Olsen, William Olson, Cleta Mitchell, who, you know, I like to think we had some small part in getting fired from Foley and Lardner, uh, Sydney Powell, Lin Wood, uh, and then some state-level folks that we uh have talked about in connection with the Eastman docs, uh, like Ken Chesebro. So, um, we've seen some of these documents, again, in connection with the Eastman litigation. So the fact that one of the very first things that we have heard out of the special counsel's office is, yeah, going to state election officials and we are looking for evidence of efforts to improperly persuade state election officials to overturn the election, uh, news.

0:56:57 Thomas: Okay.

0:56:58 Andrew: Good.

0:56:58 Thomas: Here's my question on this point. This We talked about Jack Smith and what he's doing, and it felt to me, you know, special prosecutor, go back to episode, but why is this something that wasn't already done? That's going to be my question with everything Jack Smith does, short of actually indicting people, because it feels like he should just be there to cross the T's and dot the lowercase J's and just then, you know, indict people.

0:56:59 Andrew: Yep. Yeah.

0:57:20 Thomas: But is this Something That Should Have Already Been Done That They Just Didn't Do?

0:57:23 Andrew: So. We don't know how much previously has been done, right? And, and again, we did not know until Trump made it public that there was the entirety of the investigation in connection with the uh Presidential Records Act documents, which now, you know, probably seem to be the easiest path towards a Trump criminal conviction. So, you know, I'm reluctant to say, uh, that the prior folks at the DOJ were, you napping on the job

0:57:42 Thomas: Yeah. No, I'm not. Yeah, I just am wondering. Yeah, I don't. Don't see.

0:57:52 Andrew: Yeah. No. I agree. I agree with you. Here's all I can say is we don't know what we don't know, right, this the a classic uh, you know, unknown unknowns, uh, and we don't know what we don't know. And so I'm, I, not willing to say should have been done already, but I, but I get the, I did, the point is taken, but but that would be my counter argument is, you maybe they were focused on a whole bunch of other areas and, you now we know that, oh, by the way, Jack Smith thinks, hey, how much work have you done on the, like, you trying to corrupt state legislatures part, because I've seen that and that looks real bad. So, you know, how however you want to slice it, obviously good direction for for Team justice.

0:57:58 Thomas: Mm hmm. Mm hmm, And then, Andrew, what, gosh, is this headline about they just, like, found more classified, you know, folders and what whatnot? I mean, why is that not instant, "you're under arrest"? What is going on here? Yeah.

0:58:36 Andrew: So I it So here's what's going on. Remember, uh, we have since learned that the redacted name is Trump attorney Christina Bobb, who signed the certification in connection with the subpoena that was served on Trump over the summer that said, hey, give us back all the documents with security classifications. And she signed on and said, you know, to the best of my knowledge, we've conducted a diligent search and we definitely gave you back all of those documents. And they definitely didn't. And so that dispute is now in front of our friend, Chief Judge Beryl Howell, the U.S. District Court in the District of Columbia, that said, you know, OK, given that that certification doesn't seem to be worth the paper it's printed on, maybe you should do another triple checksies for us.

0:59:25 Thomas: Yeah You say you checked for all the crimes, give you chance has to check a little bit more on those crime did you look in the closets all of the class

0:59:29 Andrew: Right. Yeah, we're going to let you we're gonna let you check that one again. Right. And so here is what Trump's lawyers have said in court. Again, this is Washington Post reporting. So, wish I had the documents, but again, don't. But I think it's important to convey.

So Trump's lawyers said that they hired a third party to search Trump Tower in New York and Bedminster in New Jersey to comply with the court's request, um, and then the lawyer said, and guess what, um, we didn't find anything at Trump Tower, we didn't find anything at Bedminster, no need to look there, uh, but we DID look at a storage unit in West Palm Beach, Florida, uh, and we found two more documents.

And so we're going to give you those two documents, uh, but it is fine. Right, all all right, uh, and the Washington Post notes a person yeah a person familiar with the matter said the storage unit had a mix of boxes, gifts, suits, clothes, it was suits and swords and wrestling belts and all sorts of things. To my knowledge, he, meaning Donald Trump, has never been to the storage unit. I don't think anyone in Trump world could tell you what's in that storage unit, right?

1:00:19 Thomas: Found a spoon sir

1:00:36 Andrew: Which I don't think is the flex they think it is. Right. Like, like, we stole so much stuff that it's turning up at places I've never been is not the defense that you think that it is. Right. So the initial reaction, a lot of people have said is, oh, well, we're just back to taking Trump's word for it. And, you know, God, you're so stupid. And we told you, you know, white people never face justice. I want you to remember, this is exactly the playbook that DOJ ran

1:00:36 Thomas: It's yeah yeah

1:01:07 Andrew: In, period, in the summer, right? That was like, hey, we've served a subpoena on you. We've asked you to certify that all the documents were back. Now we've got a court order asking you to certify that all the documents are back. And if there's additional evidence, you can now go ex parte to a magistrate judge and say, here's the court order, here are Trump's lawyers in court testifying under oath, uh, just like the certification, right, that they've, now we've searched Bedminster, and by the way, um, here's our uh surveillance that we've been running on Bedminster, and, you know, here's testimony of a witness from Bedminster who said he saw classified documents. Again, that's all hypothetical. Right.

1:01:08 Thomas: Yeah they're going through classified documents like it's it's, it's COVID contact tracing. Like, well, he was on a cruise. Oh, yeah. There's a bunch of documents there. They're just coming out of his pant legs. Just secret documents everywhere.

1:01:47 Andrew: Yeah, that That's right. And look, again, we'll probably know if there's a search warrant for Bedminster and or Trump Tower, because Donald Trump will tell us again, because he's an idiot. Um, but you know, we won't know about that ex parte, uh, trip to the magistrate unless Donald Trump, you know, spills the beans against which he might, who knows.

So, everybody whose initial reaction is, "I understand why they're just taking his word for it," this is part of, you know, how you certify to a court, uh, that there is probable cause to search a residence for evidence of, uh, criminal conduct, which is what you have to do under the Fourth Amendment, right? The Fourth Amendment requires you to demonstrate probable cause with specificity for the persons to be searched and the places, uh, to be searched and the items to be seized. Right. So you can't just say, well, I think Donald Trump is a criminal, so I'd like to look everywhere he's ever been You have. Like, and it's not good enough to go, you know, he hangs out at Trump Tower a lot. OK, but what can you do to connect to Trump Tower? Well, now you can say, yeah, we asked him to search Trump Tower. We saw this document and then we asked him, hey, can you triple check to make sure there's nothing at Trump Tower? And then he told a court X without disclosing this fact that looks like a criminal effort to conceal, exactly like he did at Mar-a-Lago.

And every magistrate judge on earth would issue a search warrant under those circumstances. And so I'm not saying that that's what's going to happen, but I'm saying won't know that does happen. And you certainly shouldn't infer that that that Beryl Howell and or the DOJ are just now at the like, OK, fool me, eleven thousand six hundred

1:02:50 Thomas: Yeah. Yeah. That Yeah.

1:03:41 Andrew: And four times. Shame on me. Right. So there you go.

1:03:45 Thomas: All right, well. What an action-packed show, full of consequences and Trump being screwed. I love it. I would like more of it. Where can I find more of it? Oh, yeah, in one of the next many episodes that OA releases each and every week. So I guess we'll have to see you then for Sunday night slash Monday's episode. Oh, one thing I did want to note is for patrons, this new schedule does make it so it doesn't really make sense to release the patron episodes early for Monday anymore, because during that time slot, I'm already releasing another episode. So I don't know, I guess I could try, but it'd be like two episodes at once anyway. So, I don't know if we're going to keep that. I may do a, maybe I'll do a few hours early for patron, or like, you know, six, 12 hours early for patrons, if that would be a fun benefit. But just because I saw some people ask that. All right. That's our show. Thanks so much. We'll see you very soon.

1:03:56 Andrew: Yeah.

1:04:34 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.

1:05:08 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.

1:05:45 Andrew: Think about it.