OA669: The Witnesses Against Donald Trump

Transcript

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

0:01:18 Thomas: Hello and welcome to Opening Arguments, this is episode 669, I am Thomas, father of three, and that's Andrew, how you doing sir, you have any kids lately, or, just the one, okay, smart,

0:01:26 Andrew: A proud father Of Three, uh, Father of one still And Uh, no, but you know, get get get getting to see him over the holidays, uh, it's been three months and and wow, have I, have I missed my son, so

0:01:39 Thomas: Yeah I know, it's, it must be quite a change, cause I know it used to be debate every weekend, you know, and now it's college dude, huh,

0:01:49 Andrew: Is, uh, I will tell you, I learned, uh, over the holidays that uh, my nephew, uh, who's just a couple years younger than Alex, is a regular show listener, and I was that, just not like that, made me unreasonably happy, so uh, Sean Jr., since I know now that you're listening to all the episodes, is a little shout out to you, so how are you doing, are you getting any sleep at all with Scombert running around the house

0:02:01 Thomas: Oh, Nice, doing great oh, yeah, I I can't complain, I mean, Lydia's obviously on the night shift because uh, it's breastfeeding baby, and all that, and so I try to get sleep and help where I can, and and yet somehow I'm still exhausted, I have no excuse, they're really, you know, I don't think I recovered from the you, the delivery and all that, that's that definitely takes it out of you. So I, you know, got pretty tired there, but, uh, yeah, maybe that's all it is.

0:02:21 Andrew: Yeah I don't know, yeah I think I'm still catching up from then too, so, oh,

0:02:40 Thomas: I'll always know. I I think, it was, uh Monday's episode that came out I had hit export on it and then like labor and delete like we just went went immediately. So Lydia was induced. It was like nothing for a while and nothing happening, nothing happening. And then all of a sudden it was, like, no. So it came kind of without any warning. And I had hit export. I was just, you know, because she was sleeping.

She was on the on the drugs and sleeping. I said, all right, get some work done. Wait for this to happen. I hit export and they're, like. Go now. And it was so I set my computer to the side while while the episode is exporting, and baby was born. So I'll always have that file timestamp for when little Remy was born, all right, but I am excited for this episode, reminder, we're doing one more week of the original flavor, original flavor two episode week, and then we'll be back to our four episode a week, because I'm sure by then, you know, Remy will be easy, he'll be, you He'll be two weeks old, so they parent themselves at that point. Do you even do anything when they're two weeks old? That's nothing. And so we'll be back at it then. But in the meantime, I'm excited for this episode. I'm excited for the next episode when Liz Dye is going to come on. We still wanted to squeeze Liz in, even on the two-episode-a-week format, so I'm exited for that. So let's get to it.

0:03:25 Andrew: Well, that mixed together, the uh, the two things that keep you from sleeping, so oh, yeah, yeah, yeah, let's do it.

0:04:12 Clip: We got it!

0:04:17 Thomas: You've been doing some reading, my friend. You actually should be more tired than me. You've been...

0:04:21 Andrew: I I it, I really, uh, I'm like, I've been leaving my parents' house, uh, you know, visiting for for for the holidays, and coming back to the hotel room and like reading until 3 a.m. every night because the January 6th Committee, uh, is doing a bunch of different things, they have released their final 845-page report, which, um, it's really well written, and encourage you, particularly, to encourage your family members to to sit and read it, right?

0:04:50 Thomas: Nobody's reading an 845-page report, are you kidding me, do they, real question, I know they, they got the Hollywood producers in for the video, whatever, did they get like JD Salinger to come punch up their report, you know, since they got the Hollywood producers, I, I mean, I seriously, they did make that effort to make the TV presentations more, more engaging for normal people, did they should do like a short Spark Note version of this report that's really flashy and easy to, for someone like me who's not going, going to read 825 pages. Did they do that?

0:05:20 Andrew: They did that. The first 130 pages are the summary, and you can read it to back. It's got pictures. It does have...

0:05:21 Thomas: Nice. Okay. Now we're good. Are there any that I can color? No.

0:05:33 Andrew: No, sadly.

0:05:34 Thomas: Okay, well, I might still read it.

0:05:35 Andrew: But it has the footnotes at the end. It has, as we talked about in our last session, the really effective Microsoft Word two-column thing where it's like, on the left, here's what the advisors closest to Donald Trump told him, and then on the right, yeah, President Trump one day later. But then after that, once you get through the executive summary, then there are 600 600 pages that, that break each section down into the specific evidence that, that favors each one. So, Right. You section one is the big lie. So if you, if you you wanted to brush up on like how what exactly is the argument that's being made? How did this get peddled? Right. I really think, you you know, as you're going through, uh, the sections that have kind of stuck out to me, um, chapters three, four, and five are are really, really good. They're really well-written.

0:05:47 Thomas: Yeah, right. And then Clippy is like, here's a lie Over here. You're doing The thing where you pull out the highlighter and you realize you've just highlighted the whole report. And So Now The Report Is Just highlighted, yeah.

0:06:40 Andrew: I've highlighted a lot of stuff. I know that That is true. Through, um, but, uh, in any event, you have this report, and this report is, uh, comprehensive and will remind you of things that you have forgotten. You know, it's reminded me of things that I have forgotten, and I live this, so Uh, I recommend people, people sit down and curl up with it. Additionally, this is crucially important, the January 6th committee is releasing, they, they've have said they will release all non-privileged documentary material. So far, none of those. And you all know me, I want the documents. But they have been releasing the transcripts, the interview transcripts of every witness that they've talked to. There have been five big dumps so far, including, of course, one this morning.

0:06:59 Thomas: Now You're talking my language. Remy is just filling those diapers, let me tell you.

0:07:35 Andrew: And those are supremely interesting. And that's really what this show is going to be about today, because we've talked about the documentary evidence evidence and proving up various allegations of criminal conduct by the former president. In order to introduce those documents into evidence and in order to secure conviction, you also need testimony from witnesses. So, you know, who are those witnesses going to be? How credible are they going to Be? The more you have an opportunity to read through the things that they've said to the January 6th committee, the more you get a sense of, okay, this is going to be a good witness, this isn't going to be bad witness, right?

Here's how that's going to play out. Remember that anything they have previously said, that this is part of the legal reason why the January 6th committee is doing this, could be used as impeachment, right, if they testify at a trial differently than they have previous testified, you can bet the lawyers will find that. There And, could be lots of reasons for that, but there's a lot of testimony that's sort of been locked in. So what I want to talk about today. I think a good way to, and I know it's the holidays, I'm always an optimist, but I'm even more of an optimista now, right?

A good way of thinking about this is, I answered this question on what remains of Twitter the other day. And that was, you know, somebody said, but do you really think there will be indictments? And I said, yeah, no, I 100% think that there will be indictments. And part of the reason for that is, I feel as somebody who has never been a prosecutor and only, you now, collaterally assisted in any criminal cases ever in my entire legal career, I feel like I could try the one thousand and one case right for fake electors against Trump today. Right. You give

0:08:53 Thomas: Wow. Wow.

0:09:32 Andrew: Me a week and Morgan Stringer and my and you and you to help organize.

0:09:31 Thomas: And Me, I mean I would help too. Right, can I Be the, I'll be the jury consultant, you Know, like, I'll tell a bullshit, though. I'll do like sheet Women a lot Awful Movies reference.

0:09:39 Andrew: Yeah. Women pack the jury with Women. Women,

0:09:44 Thomas: Everybody, That's not just Andrew making some Sort of weird sexist joke. It's a very funny, a Law'd Awful Movies reference. Make sure you get, well, if you hadn't seen the lot of movies that would, or heard it rather, that would probably sound weird. I just, I have your back.

0:09:45 Andrew: I Try Not To make Weird sexist jokes.

0:09:59 Andrew: It's It's sounded weird on the show, that's for sure. Yeah, yeah, look, look, like that 1001 case is a slam dunk right now, and I would be shocked if that at minimum is not brought. And not the least of which is, um, indicting people is what special counsels do, right? Like, you know, you, you kind of have that office space moment at, at the end where it's like, oh, okay, like you've been on the payroll for a year and a half. And, and what is it you say you do here, Mr. You know, Mr Smith

0:10:25 Thomas: Mm-hmm. Yeah, and if you're, what's his name from the 90s, sorry, I have no brain, you're, I'm, what I'm doing and I'm editing out everybody is I ask Andrew, who's the guy that was the first president of whatever the name of our country is, like, that's where My brain is right now. Who's, uh, 90s guy, Clinton's special prosecutor.

0:10:41 Andrew: Oh, Starr, right?

0:10:47 Thomas: Star, and if your Ken Start, you'll do like, like a four decades long, you know, vendetta to try to get your indictment. I mean, that just went on forever and he never quit, and he indicted them for something that had nothing to do with what he originally started. So, yeah, I guess just bolstering your point that that's What special prosecutors Do, yeah.

0:11:03 Andrew: Yeah, right. The question is, is there a way that you could be disappointed even in that? And I would tell you, if all we get is an 18 U.S.C. 1001 indictment against Trump, that could be disappointing. And here's why. Take a quick look through the sentencing guide, guidelines. 1001 gets charged all the time. There is a guideline that explains how you calculate the offense level, that is 2B 1.1. The base level is 6. It could possibly get enhanced to a 10, and I say possibly because, listen to this, this is the only characteristic that applies. It is special characteristic B 9, and it is if the offense involved a misrepresentation that the defendant said was acting on behalf of a charitable, educational, religious, or political organization or a government agency, increased by two levels.

0:11:58 Andrew: If the resulting offense level is less than 10, increased to level 10. That's 95% of what they were, right? They were representing the electors as having been duly certified by the respective state legislatures, even though, though they weren't. So I could see an argument that this applies, but I could see an agreement that it doesn't. Right. So you're left with, if this is all you charged Trump with and a jury returned a verdict of guilty, you're left with a six or a 10. Now, as hard as it is to believe, Donald Trump has no criminal history. I yep.

0:12:34 Thomas: Well, okay, pausing There to say for a moment, if we get any indictment of Trump, the person, of any, I mean, for littering, I'm going to be thrilled, because through all of this we have, have never had that. Like, we've Only, we've had his charity, somehow his charity commits infinite crimes that he has no, or whatever, like his foundation that he's never, somehow never responsible for it, doesn't matter that it's him and his name and he, you know, but to, to Get anything That's Yeah Trump Or, yeah, that's what I mean, and any, to get any that's actual criminal and not just like a norm that he is broken, that we've all been like, hey, does, does anything happen for this? Oh no, no, it's just a norm. Oh, great. To get an actual criminal indictment would be just an app, a thrill. I will, I will open a bottle of champagne for just getting that of any kind. So that would be really cool.

0:12:47 Andrew: Yep.

0:13:00 Andrew: The Trump Org Yeah, right. I Think I That's really, really good point, and I have defined victory previously as a conviction, picture of a mugshot, and one day in prison. And, and it's that last one where, if, if he were, were convicted of 1001, and that enhancement were not to apply, he was a six. Zero to six puts you in zone A, in which the guidelines allow a fine only, a sentence of probation, that's zero to six months, right, with or without a condition of community confinement or home detention, detention, and a sentence of imprisonment. If it's a 10, the sentence is six to 12 months. So that gets rid of fine only. But you could be sentenced to probation, a sentence or probation with a condition of community confinement or home detention. So he could be sentenced to spend six months at Mar-a-Lago, wearing a bracelet, which is pretty much what he's doing now anyway.

0:13:30 Thomas: Oh yeah. Yeah. Yeah,

0:14:15 Andrew: Way, right, um, Yeah, but look, um, I flagged this yesterday, people, and I don't mean people in Trump world, I mean a respected, uh, Yale constitutional law professor, Bruce Ackerman, wrote, uh, what I describe as the wrongest thing that ever wronged in the Washington Post, um, it begins, Mit the premise of, like, well, we all agree that it was, was a good thing that Gerald Ford pardoned Richard Nixon, and I'm like, have, have You ever looked at the polling on that, Like, like everybody, But, You agrees That It was terrible Of

0:14:16 Thomas: Wearing a diaper.

0:14:34 Thomas: No, Yeah, Especially, Now, Like, Yeah, especially In The Light of history of, like, okay, it's even worse a decision in retrospect now, because It, yeah.

0:14:50 Andrew: Course It was. And very few people who pointed this out at the, at the time, but like, it allowed Richard Nixon to quiet and kind of, you know, kind of quasi rehabilitate himself, Right, such that, you know, the, the, the

0:15:03 Thomas: He Was in that movie Frost/Nixon, yeah.

0:15:07 Andrew: So good, and I mean, the New York Times obituary was not, you know, disgraced former president, and Lying liar Richard Nixon, but you know, I mean, you know, and, and I, I want, I want Donald Trump to be disgraced former felon, Donald Trump, serial abuser Of the office This Uh, from The moment he entered the White House was Committed to subverting democracy, right, like, let's, Americans love to whitewash our own history, and Let's, let's let, give them more ammunition to do it, so, right, so you'll already have people saying, I don't know that prosecuting Trump is a good idea. Well, respectfully, I disagree.

0:15:18 Thomas: Yeah, Fake Water steak Salesman Bullshit Yeah, all that, yeah. Yeah, Yeah, It is, no.

0:15:55 Andrew: So what kind of witnesses could we bring? And in particular, I want to look at, all right, we don't really need a lot of witnesses to prove the 1001. If we did, the person we would get would be Brad Raffensperger. I have read his testimony, and he's going to be a fabulous witness. And the reason he's gonna be a famous witness is he's not a member of the Trump administration. He was never part of these guys. And so he can just be a guy who was appalled and he can be, yeah, Republican.

0:16:23 Thomas: Yeah. Well, a Republican, right? Isn't he a Trump voter?

0:16:27 Andrew: He's a Trump voter, but he was never a part of the disgusting miasma that was the Trump administration. And so everybody else that was even the good guys. Right. As we talked about when we first went through that, you got to put an asterisk next to them. Right? Like there's, there are very few people who are genuine whistleblowers coming out of this. Uh, Raffensperger is one of them. Um, and so he can prove the 1001. He's going to be a great witness, but, he's not going to help you so much on 1512 C2, right? That's obstructing an official proceeding or the 371 conspiracy to defraud the United States, again, by depriving the United States of its opportunity to conduct the hearing and certification pursuant to the Electoral Count Act, right? So that's what we want to prove. And the question is, right, how do we prove what we previously identified as the gaps in that prosecution, right. The proving Trump's mindset that he did this with corrupt intent rather than because he believed these goofball conspiracy theories.

0:16:28 Thomas: Yeah. Yeah. Which again, for me, it's still corrupt intent, but whatever.

0:17:35 Andrew: Yep. Yep, um, have to Share this with you because, uh, Sydney Powell's interview dropped this morning and

0:17:38 Thomas: Oh God. Is that that one that we saw footage of or where is this a different, like how many, I don't know how many interviews they've done and for what? You

0:17:44 Andrew: Yeah. This is the transcript, but, but this is, I think they only did one. So this is May 7th of 2022. And I expected it to just be, you know, fifth, fifth, fifth like all of these people. But no, there are a handful of places where she says, well, that would probably violate attorney-client privilege. So maybe I'm going to stop talking now. But throughout, she accurately describes the insanity that I say this, either she genuinely believes or is so committed to that it is indistinguishable from whether she she genuinely believes this. So let let me this is the beginning of page the middle of page thirty-three. But all around, they're sort of but their fairly early on, I realized the problem crossed party lines. So the

0:17:53 Thomas: Gotcha.

0:18:36 Andrew: Staff, thank you, the staff attorney questioning her says, okay, and I want to get to that, the part about party lines and the pushback that you felt, but first I want to focus, though, on what you think the specific problem was that you had identified. You said you had a specific view of what went wrong, meaning in the 2020 election. What did you mean by that? He's really good because she is just, she just bloviates and pontificates and

0:18:36 Thomas: It's not a bad impression actually.

0:18:59 Thomas: Well, we're, and we're used to them just saying fraud. I have just so much fraud, just like loads of it. And you're like, okay, what? Give me like an exam. Well somebody had a USB. Okay.

0:19:02 Andrew: Right.

0:19:13 Andrew: I was not prepared for this answer. Well, the conclusion that I've come to, again, I can't tell you when it first sort of crystallized, is that there was an algorithm in the voting machines. It may have been in every machine across the country. It It may have been in select machines across the country, I don't know, that remains to be seen. But an algorithm essentially gave weighted, for example, this is not a specific, but for example could weight a Biden vote at 1.25 and weight a Trump vote at 0.75.

0:19:29 Thomas: Okay.

0:19:48 Thomas: That's not an algorithm. Do they know what an algorithm that's just a math equation. That's nothing.

0:19:51 Andrew: No, that's literally, Yeah, that's literally algebra.

0:19:57 Thomas: A multiplier. Multiplier probably

0:19:57 Andrew: Yes, right. And there is a video that's been around for a long time called Fraction Magic that you can find on our website, probably at defendingtherepublic.org. Now, the reason I say that you could find on her website probably is because, of course, I went to defendingtherepublic.com and did a search for Fraction Magic and couldn't find it and searched through the entire archives and couldn' find it. And I'm going to get to what I did find in a minute.

0:20:10 Thomas: Yeah

0:20:25 Andrew: So when she says probably, no longer there, not on the first page of YouTube search results, and that at point, you know, I had a lot of work to do this morning. I will try to find this Fraction Magic video. I will tell you what I I do, didn't find when we get to it. But, so, there's a video that's been around for a long time called Fraction Magic that you can find on our website probably at defendingtherepublic.org that explains that process and it goes way back. So people have identified that long before I did. And then on top of that, on to your butts on this one. And then on Top of that. I think what happened election night was, and I've said this publicly, the turnout for Trump in person on election day was so great that it broke the algorithm in those key states. I I can't,

0:20:23 Thomas: Probably yeah I don't know how to multiply times 1.1 anymore it's too big I

0:21:15 Andrew: There are too many people.

0:21:15 Thomas: Can only do it, I'm a computer, I can only multiply by 1.11 until numbers get to a certain point, then I'm like, I don' how to do that, that's too hard

0:21:21 Andrew: Okay, fairness, this is Sidney Powell. So she may have grown up at a time in which like, you arithmetic on, like you could overflow a calculator. Like, you know when you play Galaga too much, your score resets.

0:21:31 Thomas: Yeah right yeah the voting machines voting don't have a slide rule big enough for these numbers.

0:21:39 Andrew: Yeah, but that is a nonsense statement. But multiplying a vote by 0.75

0:21:43 Thomas: Not enough marbles in the voting machines to do this.

0:21:47 Andrew: Is Not an algorithm, but if it were an algorithm, increasing the numerator would not break the ability to to

0:21:47 Thomas: Yeah. Those Unless you, I mean, she, okay. In Kraken's advocate here. She probably means like, oh, the numbers in the algorithm, The multipliers they came up with, they underestimated what they'd need. Is that what you mean? So, like, they thought just multiplying by 0.75 would steal the election for them. But really, they needed to multiply by 0, you know, 6 or something. Is that What you mean took

0:22:16 Andrew: You could not, you absolutely could not parse that out of the grammar of what she said, but I think you're correct that that it did not, it that did not occur to me, because I don't speak crazy person, but but it could be of Nice. And go back to City Pal, and this time they had the plan of the ground game backup of the mail-in ballots, many of which we know from the 2000 Mules documentary were fraudulent, and were ballot box stuff to cover for the machine fraud needed. And that's why the vote counting had to stop election night in those states, and they had to backfill. When did close. When did you figure all that out?

0:22:29 Thomas: Two semesters of tinfoil in college.

0:22:55 Thomas: What? Yeah,

0:23:02 Andrew: Answer: I don't know. Question: Did you do that on your own, or did some expert or person with some knowledge of election security and so forth help you form that opinion in the early days after the campaign? Answer: I have been digging into it, she does talk about spider, uh, probably non-stop with the exception of sleeping hours and a few eating hours since election night. And one of the remarkable things I found was the testimony of Clint Curtis in 2004 before the House Judiciary Committee in Ohio about the 2000, I think it was the 2000 or the 2004 election. Curtis is a Republican who testified in front of Jerry Nadler and Maxine Waters and whatever else was on that special committee that sat in special seating in Ohio, that he had been hired by the Republican head of the Senate, I think, or in the House, in Florida, to write an algorithm to change votes for Bush in the 2004 election in

0:23:04 Thomas: I don't spider.

0:23:15 Thomas: Spider.

0:23:52 Thomas: Boy,

0:23:52 Andrew: Florida.

0:23:52 Thomas: Good work if you can get it. Hey, Sidney Powell, do you need me to write an algorithm for you? I'm really good with fractions.

0:23:58 Andrew: So this testimony, the Ohio State Legislature testimony, which does not involve New York Congressman Jerry Nadler or who California Congresswoman Maxine Waters is a testimony of a guy named Clint Curtis who testified that while working for, I believe it's Andrew Yang's outfit, right? He says Yang Computing. While working for Yang Computing, he was asked by someone who is now a congressman from Pennsylvania if he could, as an illustration, write a piece of computer code that would flip election and he said sure and he wrote it and what it does is just

0:24:07 Thomas: Yeah. Kelp Maxine Waters. Yeah, x equals 0.71.

0:24:40 Andrew: That's that's exactly, he's like, it's less than a hundred lines of code and the only way you could ever figure it out would be, you know, if you could somehow match the votes to individual paper ballots, which of course every voting system in the country lets you do

0:24:53 Thomas: Yeah I guess they thought of that, huh?

0:24:54 Andrew: Right They might have. I tried to find Clint, Clint Curtis, and what I found was, so, so in addition, you might remember, he was a Republican in Florida? No, he's a Democrat as far as I can tell. Seems to be the same guy. Uh, Democrat running, who ran in the 2020 election for U.S. Congress in Florida's sixth district, lost 60-40, uh, founder of the Law Offices of Clint Curtis and Associates, uh, his, uh, Twitter is still active at at Clint for Congress, but he hasn't tweeted in a year and a half.

I tried to reach out to him there, um, I'm going to send him, uh, an email to, to his firm, um, he lost 60-40 in the 2020 election and that conceded, that's it, right? Like there's no howling about how, you know, all of the election is fraud and the votes were stolen and whatever. So that, whatever the implication of his, his testimony in Ohio was, it seems very, very clear to me that is not being used correctly by Sidney Powell. A, because he's still a Democrat. B, because he ran in 2020. C, because he lost in 2020 and D, because he's never endorsed any of these kind of crack and claims.

So it seems perfectly clear to me that this is just, you know, nonsense being taken out of context. We have talked about how, right? I talked about, I think it was Robert F. Kennedy Jr. wrote an article for Rolling Stone arguing that the 2004 election was stolen because of Ohio voting machines that, you know, flipped the vote to Bush over Kerry.

0:25:05 Thomas: Yeah. Yeah. Hmm.

0:26:23 Andrew: So, yeah, like, you this is part of why we call out Occupy Democrats now. This is part of why you called out Jill Stein back in 2016. Like, when you glom onto something because because it makes you feel good. Be careful, because that could come back and bite you in the ass. So in any event, seems highly unlikely to me. Possible I have the wrong Clint Curtis, but this guy has the same background, right? Is in Florida. I mean, this is just the same Clint Curtis.

0:26:45 Thomas: Mm hmm. It's not a Carole King situation.

0:26:50 Andrew: Yeah, exactly, who is endorsing the way he's being used by Sydney Powell? Um, I could read you Sydley Powell's interview for the rest of the show and we would not stop laughing. Um, it's insane. It is. It is. And I mean that in a clinical sense, it is not cognizable as English. You could not have a conversation with this person and proceed from basic facts, because this is, this is somebody who is lost, uh, to reality. And um, I guess that's instructive to know, so, And again, she spoke for hours to the January 6th committee. It is beyond fascinating.

So, um, right, we're not going to use, we're not going to use Sidney Powell. Who can we put on the stand that you would trust not to stab you in the back, right? And let me give you an example of someone I do not trust, right. I was lukewarm watching them in the January 6th live committee hearings. And after reading his full, unexpurgated interview, I would not put Pat Cipollone on the stand. No chance. Because under cross-examination, it's super clear to me that he's just going to recant. He's going to agree that things are possible or otherwise,

0:27:23 Thomas: Yeah. Yeah.

0:28:05 Andrew: Give the defense reasonable doubt. No, I know. It definitely is.

0:28:06 Thomas: Dang. Can you remind me when we're talking about what witnesses we're looking for right now? What's kind of specific things are you looking for them to demonstrate?

0:28:10 Andrew: Want them to demonstrate that Donald Trump either knew or was willfully blind to the fact that he was pushing idiot theories with no factual basis as a reason for believing he'd secretly won the presidency. And therefore, it was OK to instruct Mike Pence to go down and just lie about the electors and, you throw them all out and let Trump be president for life. So, Cipollone, not going to be a good witness. I've already told you Raffensperger is going to do great, but he's got limited, right?

0:28:28 Thomas: OK. Yep.

0:28:51 Andrew: He doesn't know about the plans outside of Georgia. Cassidy Hutchinson, we're going to talk with Liz Dye about her next week. She's fantastic, okay? But we know what they're going do with Cassidy Hutchinson's testimony because because we watched them, and I just learned this from reading the interview with Ambassador Richard O'Brien, who remained a loyalist, was National Security Advisor on 1-6. He cooperated, but when asked to corroborate things that the committee knew, he absolutely contradicted himself. He's one of the witnesses that the January 6th Committee calls out as being probably untruthful in his testimony. So let me give you an example about this. The January 6th committee reads back part of Hutchinson's testimony to him and says, on the morning of January 4th, I received a call from Robert O'Brien, the National Security Advisor.

0:29:46 Andrew: He asked if he could speak with Mr. Meadows about potential violence on January 6. I asked if she connected with Tony Ornato because Tony had had a conversation with him and Mark about the topic. Robert said, "I'll talk to Tony." When they asked Robert O'Brien to corroborate that, he said, "No, I never discussed Cassidy Hutchinson about anything? Cassidy was the assistant to the assistant of Mark Meadows. And so that is, A, a pretty detailed conversation. I've never had policy conversation with her.

Number two, if I wanted to talk to Mark, his office was down the hall. I had walk-in privileges with Mark, and so I probably would have walked in. I'm not saying it couldn't have happened, and Cassidy is a very nice young lady, but the standard practice would have been for one of my staff to call her to set up a meeting if I was seeking to set a meeting. The other thing is, and Tony's a great guy, but if I was going to have that conversation, I probably would have had the conversation with another principal, like the chief of staff, and probably not the deputy chief of staff." End of quote. And let me tell you, a a criminal defense lawyer's dream right there,

0:30:45 Andrew: Right, is the, yeah, look, here's what you got. You got a bunch of low-level staffers that didn't really talk to the principals, overheard a bunch of stuff, they got their pants on fire, you know, that they got the hair on fire about it, uh, they panicked, uh, but it was never really like that they, right, were always, they always wanted to be a part of it, but, like, I'm not going to talk to the assistant to the assistant, I'm to talk to the guy.

0:30:45 Thomas: Yeah, sure.

0:31:09 Andrew: I got walk-in privileges with Mark. Gene Scalia, somebody, again, with whom I've tangled in the past, and was interested when his transcript came out, same kind of thing, puts it this way, and this, I think, is illustrative of sort of the broad story. I was concerned that the president, post-election, had been receiving bad advice from people who were ill-positioned to give him good advice, and the people who weren't appointed in position to give the president the best advice, we're not being consulted in the manner that I believe the president should be doing.

0:31:40 Thomas: Sure.

0:31:41 Andrew: So again, Yeah, you know, comes off perfectly reasonable, but the story that these people as defense witnesses are going to weave together is Trump couldn't possibly have been conspiring or have had improper motives, because what he was doing was listening to bad advisors, right? And it's not that Cassidy Hutchinson or Tony Renato or Richard Donahue, we're going to talk about in a second, are lying, it's just they didn't understand the whole picture. And so, yeah, right, Trump was suckered in by Rudy Giuliani and Sydney Powell and Michael Flynn, and he really believed it, and we tried, but, you know, at the end of the day, we couldn't convince him otherwise, and that gets you a walk on 1512 if you're able to to persuade them, right?

0:31:41 Thomas: So?

0:32:26 Thomas: I

0:32:26 Andrew: I hate that, absolutely. Richard Donahue, we talked about him before. He's our favorite guy from the documents. He looked great in the live hearing. He's the guy with the, like, "Yeah, oh yeah, Jeff Clark, yeah, why don't you go back to your office, we'll give you a call if there's an oil spill, right? Just an ideal witness. He's also the principal assistant deputy attorney general, pay dag, right, to the deputy attorney général, who was Jeff Rosen. And so the argument is going to be, this guy's not a decision maker. He's a number two to the number two. Too. That's his own words. I want to talk to that guy. And that's how they're to try and marginalize him. And he didn't talk to the president much, except for this one weird thing that is in his testimony that I can't figure out. I am dying to know how this happened. This is on page 38. So Bill Barr resigns as attorney general on December 14th, and he calls up the paydeck. He calls up our buddy, Richard Donahue, and says, says, OK, I'm leaving. And by the way, might get a call from the president.

0:32:26 Thomas: Hate that, yeah.

0:32:38 Thomas: Wow.

0:33:27 Andrew: Donahue says, really? And he's like, yeah, he might offer you the job. And that, in fact, is what happens. On page 39, Donahoe gets called by the president Trump says, hey, have you heard that Bill was leaving? He says, yes, sir. I heard you had a good meeting. And he he quotes the president at boy, you just talk about Donahue being a good witness. Here's the words that he says he remembers the president saying. It was a very good meeting. It was fine. He gave me a letter, a beautiful letter. It talks about some of the things we've been able to do together, so I really appreciate that. Okay, like I will believe this guy anything, right? That

0:33:33 Thomas: Yeah. Yeah. Yeah. Or he

0:34:04 Andrew: Is just, yeah, it could be. But he's leaving, and now I have to figure out who should be the attorney general. I think you'd do a great job in that position. Is that something you'd want to do? Do you want to serve as attorney general? And then Donahue tells him, I think you should just, wait, there are three weeks left. I think you should just follow the process, let Jeff Rosen ascend to be attorney general, acting attorney general, and I'll serve as his deputy attorney general. And then Trump says, but you'll stay on to the end of the administration. He says, yes, I'll stay onto the end of the administration." That's weird.

0:34:04 Thomas: Got consulting from my, my favorite guy on SNL who does the Trump impressions, yeah.

0:34:50 Thomas: What is that about, do you think he was a, you Donald Trump election truther or something? Yeah.

0:34:54 Andrew: It could be, but this is a time, as we're about to get into, this is a time in which Trump is apoplectic that Bill Barr is not going along with his claims of widespread election fraud. He's sending stuff to the DOJ on a daily basis saying, oh yeah, investigate the, you know, secret suitcase, and the DOJ would come back and be like, "That's what an election box looks like, Mr. President," right? Like, and so, yeah, the fact that he's super happy about Donahue? Just don't know.

0:35:27 Thomas: Just Putting out a blind guess, could it be a tactic of his is to go to somebody who is, you know, not the next guy, in order to feel like he has something on them? So it's just like, he's doing him a favor by giving him the job.

0:35:43 Andrew: Yeah, it could be. That's Yeah. As plausible as anything. We just don'T know anything from, from, from the time. And it's weird. And so I want to flag that as being weird because this is a thing that lawyers do. Right. And if you are, uh, Jack Smith, right. You're thinking, thinking, okay, where are they going to come after my guy when he's testifying? And a thing you don't understand fits into that category. And so if I were Jack Smith, I would call Richard Donahue up and I'd be like, all right, what's going on with this? Tell me what's gonna happen because I would absolutely want to know that before I put you on the stand. It.

Donahue's testimony is going to be great because was the one that remembered, again, we've known this, but it was good to get a reminder that it struck the January 6th committee the way it struck us. He was in a late December meeting with Rosen, with Trump, in which they were going over all of these crazy theories. And Rosen, then the acting attorney general, told Trump that the DOJ couldn't just snap its fingers and change the outcome of the election. It doesn't work that way. And then in his handwritten notes, Donahue says that the president, word for word, said, I don't expect you to do that.

0:36:00 Thomas: Yeah.

0:36:52 Andrew: Just say the election was corrupt and leave the rest to me and the Republican congressman. And it's there. It's handwritten, contemporaneous, December 27th. That's a prosecutor's dream. Right? So that's really, really good evidence of that you had corrupt intent. Yeah. Don't get into any of it. Just say a thing that wasn't corrupt, was corrupt and leave it to me and my cronies. That's great evidence. OK, so I don't mean to suggest this is all bad. Also going back over the letter that Jeff Clark wanted to send out. I had forgotten just how much every word of that letter was a lie. Right? The Department of Justice is investigating various irregularities in the 2020 election for President of the United States. True. The department will update you as we are able on investigatory progress.

But at this time, we have identified significant concerns that may have impacted the outcome of the election in multiple states, including Georgia. Completely false. In light of these developments, the department recommends that the Georgia General Assembly convene a special session so that its legislators are in a special position to take additional testimony, receive new evidence and deliberate on the matter. All of that is just a hundred percent false. And Donahue was apoplectic about being asked to sign it. He called the letter a suicide pact. So look, that's going to be great. Oh, I forgot it ends with. And these these states have submitted multiple slates of electors and, quote, both Both sets of those ballots have been transmitted to Washington, D.C., to be opened by Vice President Pence. Well, actually, many of them had not even been right in two states.

0:37:10 Thomas: Yeah, oh God.

0:38:31 Andrew: They were not even transmitted on time at the time that letter was supposed to go out. So even on the basics of things like, you know, I'm sorry, we didn't get them to send out the letter in time that they, they rode up in the parking lot at Denny's like it was just a wall to wall fraud. So, with that little caveat, I expect, I expect Donahue to be a very good witness. The things that he has to say about Trump are outstanding evidence. But the downside is he didn't talk to Trump that often. Right, that wasn't. And we have that one weird thing. We've talked about Greg Jacob. That was the lawyer for Pence who investigated the Electoral Count Act and entered into the exchange that rather unraveled with John Eastman.

0:39:15 Andrew: Yeah, thanks to your bullshit, the Capitol is now under siege.

0:39:14 Thomas: Oh yeah, man. He's like, all right, yeah, let's still have some dinner. Oh,

0:39:20 Andrew: Yeah, right.

0:39:20 Thomas: That one, one right, yeah.

0:39:21 Andrew: And no, same one. Yeah, later let's go have some dinner. All these Pence guys are like in their testimony. They're like, well, first, before meeting with the president, I said a 12-minute prayer to my Lord and Savior, Jesus Christ. And then we all got together for the morning prayer breakfast. That's a 45-minute pray that the vice president... And it's just like, they are all Ned Flanders' kids. That's exactly right.

0:39:22 Thomas: Yeah, Of course, They're All Ned Flanders's kids. Rod and Todd, Yeah,

0:39:50 Andrew: Rod and Todd, Greg Jacob here, that's one potential. The other problem is that his boss is Mark Short, that is Pence's chief of staff, and Short's testimony is full of the same equivocation and weasel words, and Short is, is going to be terrible, you can't put Short on the stand, and Short boss is Mike Pence, right, who's been MIA throughout this entire process. So again, you have Jacob is, is gonna be a decent witness, but he's the assistant to the, the assistant to the guy who's MIA.

I, right, certainly would, if I were a lawyer defending Donald Trump on criminal charges, I would say, oh yeah, they're saying that, you know, he almost got the vice president. Well, where's the vice president? Why didn't they call him, right. Maybe, just maybe, things aren't the way they've cherry-picked and put it together. And that negative inference is going to be, you can make that negative inference, right, because that they, could subpoena Pence and require him to testify, um, but they know that if they do that, right, that he's probably going to, uh, stick it to I them would not call Pence. So is there anyone that we can count on?

0:40:35 Thomas: Yeah, Okay, I'll do it. No, that's not gonna do anything.

0:41:01 Andrew: Um, Want to say we have, have to tread very, very carefully. But God help me, Bill Barr is going to be a good witness. Now, it is important to understand, never, that's right, putting trust in William Barr.

0:41:09 Thomas: And We've never gotten burned before on this show by Andrew saying Bill Barr's here to save the day.

0:41:18 Andrew: That's true, I know. But, okay, first, I have to flag for you the major, major way in which Bill Barr is lying, here's the important thing, because I think Richard Donahue believes this lie, and I think in order to prosecute Donald Trump, Jack Smith will have to pretend to believe this lie. And we should not, okay? So I'm going to flag for you what the lie is, but I will tell you as a lawyer, I would very happily pretend to Believe This Lie in order to secure the testimony of Bill Barr. So here's the way it's supposed to work. The Department of Justice has a division called the Election Crimes Bureau, or ECB. And here's how Richard Donahue describes it. The ECB, because of their expertise in rural, published a manual. I forget the exact title. It was essentially the Election Crimes Manual. That's correct. And I'll put a link in the show notes. And over the years, they've developed and stated a practice.

And this is an oversimplification, but the practice was to not conduct investigations in real time while elections were going on. You'll wait for the elections to be completed and certified and for the election winner to take office, essentially. And then you conduct investigations. And obviously this means you could not then address any fraud that may have contributed to the outcome of that election. Their thought was that we should be conducting investigations essentially after the fact to deter future misconduct.

0:41:46 Thomas: Yeah.

0:42:35 Andrew: That made a lot of sense, and there's certainly merit to that approach. And disregarded the day after the election, when results were still in doubt. On November 9th, he issued a memo. I will link the memo in the show notes. And the memo says, now that voting has concluded, which had concluded, but tabulation had not yet concluded. That somebody as smart and as conniving with their words as Bill Barr, I thinks that is deliberately misleading. It is imperative that the American people can trust that our elections were conducted in such a way that the outcomes accurately reflect the will of the voters. The DOJ has an obligation to ensure that federal elections are conducted in such a way that the American people can have full confidence in their electoral process and their government. Then there's a long paragraph that, you know, the ECB practice has never been a hard and fast rule, so I'm going to disregard it.

And then it says, given this, I authorize you, right, that is the department heads, to pursue substantial allegations of voting and vote tabulation irregularities prior to the certification of elections in your jurisdictions. OK, so that is line prosecutors should go out and investigate these crazy wild claims electoral votes get certified.

0:42:58 Thomas: Yeah, yeah.

0:43:51 Andrew: Here's what Barr said he was doing. He said, I put this in writing so I wouldn't be making ad hoc decisions every time one of these things came up. What are these things? Well, given all the rule changes, the whole sort of storm of allegations about irregularities and fraud and so forth, it was appropriate, especially after the election was held, that we look into some of these things. And, and, again, for somebody who's usually real, real precise, all of a sudden we're now, you know, things and stuff, right? It There is no doubt in my mind, and I think it is supported, uh, by Bill Barr's testimony, uh, and I'm gonna get, get to that, um, that if Bill Barr thought with it. If he could do one thing and flip one result and make Trump president, I 100% believe that he would have done it because that's what he did, right?

0:44:20 Thomas: You know, algorithms, and whatnot, you know.

0:44:41 Thomas: Yeah yeah. With the report. Yeah if he could have just put not in front of one of the election results. Not Biden. Oh dang. Okay.

0:44:50 Andrew: With the Mueller report. Yeah. Yeah. But we have, and love this one, have Barr saying, and it wasn't too long after the election. I would say within two weeks, I had a very skeptical view of the claim that fraud was involved that would affect the outcome of the election. That's not highlighted, but I am highlighting it in the audio here. First, there was a big gap. At least three states had to be flipped, and the gaps were such that had never really been made up before. I don't think we need to go on beyond that, because I think that was the sum and substance of where Bill Barr changed, changed his position, right? Yeah, you're asking me to overturn three-plus states with huge margins.

0:45:43 Andrew: On November 9th, I didn't know how big the margin was going to be for Biden. It could have just been one state, and it could have been one State like, you know, we're looking at in Florida in 2000, you knows, 523 votes, if it had been that, Bill Barr would have done absolutely, I believe, would have done absolutely everything in his power to reverse the results of the election. But, you know, once you're talking, oh, you want me to go into seven different states and maybe win in three and maybe hope that that's enough? No, come on, man, you lost, right? And so two weeks in, Bill Barr believes that Trump has lost. And he communicates that to Donald Trump, essentially, eventually on November the 23rd. At that point, Trump becomes apoplectic with Bill Barr.

0:46:29 Andrew: I imagine that if we could really get the truth serum, or if there are Nixon-level tapes of that conversation, that it had to be a conversation where Barr is like, like "Dude, I saved you from being impeached, and I have, I've made the second half of your presidency. Don't you dare say I'm disloyal to you now." But it's not gonna happen, and then, you Trump said, "It absolutely is," like, blah, blah, blah, um. And so that was, uh, Barr testifies that after the election he only had three conversations with Donald Trump. One on November 23rd, that I just told you about. One on December 1st, in which Trump fires him. Trump says, "You're fired, get out." And Barr says, "Fine." And then Pat Cipollone comes, runs up afterwards, and is like, "You didn't mean that, you're fire. Please don't leave." And he gets unfired. And once on December 14th, in which Barr takes his resignation letter and Trump accepts it. And I think the reason that Barr left on the 14th was that was the certification deadline, for all right?

0:46:44 Thomas: Yeah yep.

0:47:34 Andrew: Of the electors, that's the safe harbor deadline. And I think that once he saw that all of those states had certified the Biden electors, he thought, "Okay, well, the argumentative portion of this is over and I am not going to be left at ground zero holding the bag."

0:47:48 Thomas: Yeah, he's not a true believer. He is a, in it for himself kind of guy, I feel like.

0:47:50 Andrew: No, yeah, absolutely Right. And so I think he, he thought that was over, and left. It took him like a week to clean out his desk. So you might remember the crazy meeting. That was December 18th. That was Michael Flynn, Patrick Byrne, the overstock.com guy, Sidney Powell, Rudy Giuliani, right? They all met. That was when Sidney Powell was maybe made a special counsel for 12 minutes, or maybe wasn't, we don't know. You, Rudy was drunk again. Cassidy Hutchinson, you know, ran after him in the parking lot, all of that. Barr wasn't there. He was told about it, but he wasn't there. So Bill Barr, I think, is going to be a very, very valuable witness up until the point that he left on December 14th. So who does that leave as a potential witness that can fill in the gaps from December 15th through the end of the Trump administration, and I give you the hero America deserves, the paranoid, racist, narcissist idiot, John Eastman.

0:48:45 Thomas: Melania? Trump? No. I Was gonna say that, could be a lot. I was thinking Stephen Miller. Couldn't be Stephen Miller. Sorry. Let

0:49:01 Andrew: Remember, like, let us not forget John Eastman penned article, uh, after the Democratic National Convention, arguing that Kamala Harris, born in Oakland, California, was not a natural born citizen and was therefore ineligible to be president. So in addition to everything that we've talked about Eastman, and he is also a racist piece of shit, right? The thing about everybody close to Donald Trump, if you could flip them, so, you know, you indict them, you flip them, uh, see, you know, if you can, uh, bargain them down, you to get them to testify against Trump, um, there's going to be a problem, and that is that the nebulous question of, uh, these assertions of executive privilege, right? So even if he thought, Pat Cipollone, right, he's going say, well, I'm not going to

0:49:39 Thomas: Wait, isn't this isn't all crime fraud exception stuff, stuff.

0:49:43 Andrew: Um, So you could litigate that right, but it's, you're left to litigating it in the courts, with the exception of John Eastman, where you have, he is a party, and so therefore I, I believe res judicata applies, right? It's your using it defensively.

0:49:46 Thomas: Uh-huh, racist judicata, yeah.

0:50:00 Andrew: Uh, Trump was not a party to that, so you couldn't use it as with respect to Trump, but you can with respect, the Eastman, to say, "Oh, oh, yeah, no, this is not, no privilege applies because of the crime fraud exception." And there are three separate rulings in which the court says, right, "We find it more likely than not," which is the only standard you need, that sort of advice that was given in connection with January 6th was in furtherance of a crime and not protected attorney-client conduct.

That, that on June 7th, that that strategy predates the January 6th was, quote, fully formed and actionable as early as December 7th, 2020, and all of the planning in connection with 1-6. And then again, we covered the court's third ruling on October 19th with respect to the, the documents, that any discussion by and between John Eastman or other attorneys or the president in which, quote, the primary goal of filing a lawsuit is to delay or otherwise disrupt the January 6th vote, end of quote, is part of the crime fraud exception, right? Is not a legitimate judicial purpose. So for example, in one email, President Trump's attorney state that, quote. Merely having this case pending in the Supreme Court, not ruled on, might be enough to delay consideration in Georgia, end of quote.

This email makes it clear that Trump filed certain lawsuits not to obtain legal relief, but to disrupt or delay the January 6th congressional proceedings through the courts. The court accordingly finds that these four documents are sufficiently related to an in furtherance of the obstruction crime, and the crime fraud fraud exception applies, and he was ordered to disclose those documents.

0:51:40 Andrew: So yeah, that all together, and here's my prediction. I, I said early that I was not sure that Smith investigation was going to proceed like the Mueller investigation, where the first round of indictments were Papadopoulos and Flynn and folks that were all indicted on 1001 charges and then got to flip against other folks. And they just never got anyone high enough up the chain to flip. I think one of the very first indictments that's going to come down is going to be Jack Smith indicting John Eastman. And then John Eastmin's going have to figure out whether he wants to go to jail for a long time for a man of his years, or whether he wants to finally turn around and go, "Man, I was a law professor."

0:52:29 Andrew: Like, I thought I could just write racist articles and stuff. And, you know, I didn't think I was going to have to go jail to for that. Are you kidding me?

0:52:38 Thomas: When have we ever punished racists in this country? Come on.

0:52:41 Andrew: That's absolutely right. Want to remind you of the documents that we have previously looked at and are referred to in the report. This is page 458 of the final report. Here's how the 1-6 committee describes it. Eastman knew in October of 2020, that is pre-election, that the VP couldn't reject electors. In the course of a lengthy exchange of ideas and emails throughout the pre- and post-erection period with an individual named Bruce Colbert, Eastman provided comments on a letter Colbert was drafting to President Trump. The draft letter purported to provide recommendations of crucial legal actions for the Trump campaign to take, quote, to help secure your election victory as president of the United States. One of the letter's recommendation was that the president of the Senate decides authoritatively what certificates from the states to open.

0:53:27 Andrew: In response, Eastman wrote on October 17th, quote, "I don't agree with this," and continued, quote, "The 12th Amendment says only that the President of the Senate opens the ballot in the joint session, and then, in the passive voice, that the vote shall then be counted. 3 U.S.C. 12 says merely that he's the presiding officer, then it spells out specific procedures, presumptions, and default rules for which slates shall be counted. Nowhere does it suggest that the president of the Senate gets to make this determination on his own. 15 doesn't either," end of quote. So that strongly suggests you could very easily have testimony from John Eastman of, "You wrote this letter, Dr. Eastman?" "Yes." "And does that reflect your view of the Electoral Count Act?" "Yes." "Was that the advice you gave to President Trump?" "Initially, yes." "Did that ever change?" "Yes." "When?" "When we lost the election."

0:54:17 Andrew: Yeah, and how did it change? "Well, then I said, well, we would just get the states to appoint alternate slates of electors." "And did you do," and there's a memo that does that, I'm not going to get into it. "Did that view change?" "Yeah, yeah." "When did that happen?" "Well, when the states didn't meet to certify an alternate slate of electors." "So then what did you do?" "Well, then we cooked up this idea to come up with fake electors and I completely changed my view and contradicted I had said back in October." "Why did you that?" "As a pretext for keeping Donald Trump in office." "Did you convey to Donald Trump that advice?" "Yes." "And what did he say?" "I don't care, whatever it takes to keep me in office." Right, that is wham line testimony, right? That would be a slam dunk conviction for Donald Trump

0:54:17 Thomas: So

0:55:04 Andrew: On the 1512c, and don't get me wrong, maybe Eastman has the testicular fortitude of, you know, the other kind of lifelong mob sub bosses, uh, that Donald Trump has managed to surround himself with. But I don't think he does. I think he's a tiny little scared racist weasel. And I think if you threaten him with five years in prison, or, "Hey, make we'll you the savior of American democracy," I think he'll take the ladder. And that's where I think this is going.

0:55:33 Thomas: It all depends on Johnny's, okay, cool.

0:55:36 Andrew: Ed Bilbar.

0:55:37 Thomas: And Bill yeah, oh, yeah.

0:55:37 Andrew: Ed Milbar. Yep.

0:55:38 Thomas: You're right, yeah, sorry, I forgot about that, excited for that, uh, thanks for the breakdown, Andrew, and uh, thanks for reading a lot during during this Christmas break.

0:55:47 Andrew: Relationship

0:55:49 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:55:56 Thomas: And now it's time for T3B, Thomas takes the bar exam where a sadistic lawyer forces a new dad, a dad of a five-day-old baby to answer bar exam questions for his sick pleasure each and every week. All right, you sick F. What's our question this week?

0:56:15 Andrew: Has taken an interesting turn over the holidays. All right. I will put down the leather crop here. Thomas, we all know. A fast food company employed a student as a door greeter to be paid weekly

0:56:20 Thomas: It's okay. I secretly like it. Loving the number of fast food related bar questions, but this, this was, who wrote this? Did an OA listener write this book for us? Gonna be transformers and fast food one, and we're gonna know. Wow.

0:56:36 Andrew: Be, the rate of $7 an hour. The student fell fell to sleep on her feet on her second day on the job, the fast food company terminated her employment. The student later won damages of two weeks' pay against the fast food company.

0:56:43 Thomas: Interesting.

0:56:54 Thomas: Yeah.

0:56:54 Andrew: This was probably because, A, the fast food company breached the employment contract, B, the student had an at-will contract with the fast food company, C, a condition precedent to the fast food company's performance failed, or D, an employee does not give up all personal rights. Yes.

0:57:08 Thomas: Wow. I like this question. I can't tell you have any idea what the answer is, but I like that this is fun. Okay, I like the ones where it's like this thing happened and why might this have happened? That's cool. Okay, so paid weekly. Okay, they're paid weekly, second day on the job. Fast food company terminates her for falling asleep on. Student later won damages of two weeks' pay. Why would it be two weeks' pay? Is an interesting thing. I mean, it makes you think like two week notice or something, but that usually goes the other way. I mean, the fact that they're paid, paid weekly and they get fired on the second day, does that mean like they didn't, did they try not to pay her for the week or something? I don't know. I'm trying, I can't really think of why that is a priori here. So let's see.

0:57:58 Thomas: This was probably because A, the fast food company breached the employment contract. Yeah. Yeah, maybe there's something in there that means they'll have, I don't know, accommodations for sleeping on the the job. No, I don't know what it would be, but maybe they have something in there about how they're allowed to fire the person. The question doesn't actually say at will or anything like that. Only the answers do. B, the student had an at will contract with a fast food company. Okay. B seems like just wrong. Cause like B seems like the, you wouldn't get any damages you that fire the person, no consequences, end of story.

So I think not B, I'm pretty sure. C, a A condition precedent to the fast food company's performance failed. Precedent, I guess it would be. A condition precedent to the food fast food companies performance failed, don't, that uh, feels Feels like gobbledygook trying to attractive distractor me with words that I don't understand. Precedent to the fast food company's performance. I mean, feel like that's a fancier way of saying A, which is they breached the employment contract, but it' like a weird way of saying, it' like passive voice. Like, we didn' breach the contract.

A condition precedent to our performance failed. So I don't think I like C. That would be weird if C was true, but A wasn't. I would have questions. I don't how that would work, but I could be wrong. So I'm going to go.

0:58:31 Andrew: All.

0:59:17 Thomas: So I' pretty solidly A and D, just already without even looking at D. D, an employee does not give up all personal rights. Okay, that, okay, D strikes me as the bar exam tricky answer, because somewhere in there, going to be the fact that like they were, there was something on the job that like, was bad conditions, that does not give up all personal rights. Yeah, I don't know. An employee does not gave up all personnel rights. Boy, that's tough.

I'm between A and D pretty solidly. So the idea, I guess the only way to know this, maybe if I'm, if I have a correct read on this, which I probably don't, is to know what the likely damages would be in either case. Maybe. So like, if it was a breach of employment contract, what would your damages be? Would you, would you get two weeks' pay? Does that sound right?

You preach, let's say the employment contract said we won't fire you without giving you some warnings or something, I don't know, know, something like that. Would the remedy be two weeks' pay or would they have to like hire them back maybe? Or does two weeks paid seem fair for that? I don't know. Versus D an employee does not give up all personal rights. It's kind of this ominous, like what were the conditions at this job such that they one, may, two weeks play for complaining about something or winning on, on some violation of their, personal rights. Yeah. Okay. Let's say I'll go with this.

I have no idea if this is right, but I would say an breach of the employment contract sounds like a two weeks pay thing. Whereas D an employee does not give up all personal rights, that sounds like you would get some amount that would be damages that wouldn't be related to like two weeks paid. That might be related. You know, was there safety safety problems at the company. So therefore you're going to get a payout. Okay. I'm going to go with a, I'm between a and D I'm gone with a for that reason. Final answer.

1:01:02 Andrew: Right. And if you want to play along with Thomas, you know how to do that. Just share out this episode on social media, include the hashtag t three b e include your guess, your reasons therefore. We will pick a winner and shower that winner with never ending with never-ending fame and fortune. Fame and, unfortunately, not guaranteed. We

1:01:16 Clip: And thank you, Let's go!

1:01:18 Thomas: And now it's time to thank our new patrons at patreon.com/law, enjoying all the goodies, the ad free episodes, more than ever, benefits. The lot. Awful, by the way, catch that Law'd Awful Movies, which was referenced in this very episode, very uh, very uh hilariously, by one P. Andrew Torres, Esquire. And and why don't you start us out?

1:01:35 Andrew: Sure. A big thank you to Carpe_Simian, Thomas Cosgrove. I think that's our returning patron. So welcome back, Thomas. Peter Cairns, Tracy Raines, Chris Bemiller, Mark Pavlichenko, Jesse Sipprell, Stoldney McStoldneyson, FlocktimusPrime Prime, because he turns into a flock of birds, that's pretty cool. Copper Cricket, Baranza, Jonathan Jeffries, and Joaquin. And then it's a whole bunch of unpronounceable characters, but something like That.

1:01:52 Thomas: Thank.

1:02:06 Thomas: You. Litis, Sara Chandler, if OA needs an intern, John shirley the law student comedian might know a guy. Oh, that'd be funny if I got like a comedy intern on the show rather than J.D.L.

1:02:17 Andrew: Think we should.

1:02:18 Thomas: JDL Holen, James Grosser, Luke the Spook, Eastman. Go. Oh, Chocolatebunting, Bryan Kendall, Kristen Pessell, sierra, Gordon Downie and Sebastian Smith. Thank you so much, new patrons. We love you very much. Hope you're enjoying the content. And that's our show. Thanks so much for listening. Looking forward to Monday's show with Liz Dye. Glad we're getting Liz back on, even with the old format. Can't wait for that. We'll see you then.

1:02:43 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.

1:03:17 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.