OA670: Cassidy Hutchinson's Lawyer Was Working Against Her

Transcript

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

0:01:18 Thomas: And welcome to Opening Arguments. This is episode 670. I'm Thomas, that's Andrew Torres. How you doing, sir? I am great.

0:01:25 Andrew: Am fantastic thomas how are how are you should I should I be nice and quiet and soothing thing. Don't want to wake you up if you've gotten a nap in between those two sentences.

0:01:29 Thomas: Yeah, I will say Yeah. We do record in advance, but I will say, as the listeners are hearing this, I suspect, Andrew, a, you're back home, and b, maybe you got, maybe got my gift, I don't know, we'll see. I'm looking forward to it. See

0:01:48 Andrew: You got mine, which turned out to be the most clairvoyant gift ever, which I'm so excited.

0:01:50 Thomas: Yes. Oh, Yeah, We should talk about that. So, Andrew, Andrew, for Christmas, sends me, I, you know, he's like, "Ah, merry Christmas, here's your, here's uh, your gift." I, I get the uh, the Drizzly uh, delivery, because that's, let's face it, that's usually what our, what our gifts are, and it's two bottles of Remy Martin, and this was before we had told, like, anyone that we were naming the kid Remy. I was like, did you, did, did I tell you, Andrew? Did somebody else somehow tell you? And you're like, "Nope, don't know what you're talking about." What are the odds? You've never gotten me Remy Martin before. This is the first time in my mumblings as we're recording or something. What, I mean, I don't believe in anything, but like, I dunno, cool, cool omen.

0:02:03 Andrew: Yeah.

0:02:23 Andrew: You wheeze that name out at night. Well, never mind. Yeah. It was

0:02:34 Thomas: I thought those, we enjoyed, by the way, I and the in -laws enjoyed the hell out of a A lot of that Remy Martin over in celebration of Remy's birth, of course, and just Christmas and all that. So I appreciate you. Thank you so much for that delicious stuff. Having said that, why don't we get to more delicious stuff, which is today's episode. Of course, Liz Dye is going to come on in a little bit to talk about this really dirtbag lure. I mean, in dirtbag lure terms, yes, we've had Kraken dirtbags and we've We've had, you know, conspiracy dirtbags. But this is just good old-fashioned, like, bad movie villain dirtbag

0:02:34 Andrew: Super fun. Yeah. Oh, nice.

0:03:09 Andrew: Yeah.

0:03:09 Thomas: Lawyer stuff. Can't wait to hear about it.

0:03:09 Andrew: Yeah, really. Yeah. To be played by Gene Hackman or Rutger Hauer, yeah.

0:03:13 Thomas: Yeah. Yeah. In Runaway Jury or whatever. Runaaway Election, I guess. Before that, though, a on the Electoral Count Reform Act.

0:03:18 Andrew: Yep. Yep. Yeah.

0:03:31 Andrew: About some unambiguous good news passing in the lame duck session as part of the omnibus spending bill, uh, Democrats managed to get through the House and then, uh, the Senate, not to filibuster, sorry, 4573, that is the Electoral Count Reform Act, uh, it also has some election transition rules, and I'm just going to go through briefly on this, um.

0:03:56 Thomas: Are One, you can't steal an effing election, is that, did they put that in there?

0:03:59 Andrew: That Would be, that would be a nice one, uh, there's something close, but but it doesn't quite say that, um, amends the Electoral Account Act. In fact, strikes the existing Electoral Count, and I want to be clear, as we talk about this, this is one of those examples where lawyers like John Eastman, who are corrupt and should be in prison, listen to our last episode, but will use legalese to their advantage in making dishonest arguments, right? Right. So, for example, let me give you an uncontroversial statement to two of them. In fact, number one, the previously existing Electoral Count Act, 3 U.S.C. 15, as written in 1882, was not great, how it was written. It was kind of cumbersome. It has a big, like, 78 word run on sentence in the middle of it. And like everybody thought, OK, man, like 19th century, you really could have done a lot better job writing this.

0:04:06 Thomas: More

0:04:57 Andrew: Okay. That's true. And so you will find lots of law review articles talking about the Electoral Count Act saying, well, it's not a masterpiece of drafting. It's not entirely clear that X. It's not right. And you go through all of that. But then when you look at, I know because I've read those because when the Eastman memos came out and said legal scholars agree that the Electoral Count Act is not a masterpiece of draftsmanship, therefore my completely insane argument of the vice president can just pick whoever he wants to be president, right? Right. Of course it doesn't.

0:05:35 Andrew: Right. Yeah. It's a you middle fallacy? But but in any event, patching up that language was very, very high on the Democrats priority list and somewhere below, you know. Toe polishing on every Republican's list with the handful of a couple of people. Right, yet again, this is actual legislation actually passing a 50 -50 Senate thanks to Joe Biden. And, again, Joe not, Biden, not my candidate, but deserves credit and deserves credit here. Year. So what does it do? It rid of a lot of confusing language in the original Electoral Count Act. It makes clear, right, Election Day is, so we're going to just kind of go through and talk about, the new Section 1 defines Election Day as that period, the Tuesday after the first Monday in November,

0:05:28 Thomas: Yeah, that Must be True, sure. You

0:06:33 Andrew: If the state modifies the period of voting as necessitated by force majeure events that are extraordinary and catastrophic, as provided under the laws of the state enacted prior to such day, election day shall include the modified period of voting. So what does that mean? And the way, let me pull out the phrase, "enacted prior to such day," is a thing you will see and hear repeated a lot throughout the Electoral Count Reform Act. In other words, and this, I think, borders on our coverage of the independent state legislature theory, in a bipartisan way, people came together and said, yeah, let's make it clear that you cannot change the rules after the vote happens and you don't like who your state votes for, right?

0:07:19 Andrew: Because that was the basis of the entire argument of the Eastman theory from day one was, oh, look, the state elected Joe Biden. Are you kidding me? Georgia? We own Georgia. We're Republicans. Let's fix that. And so the new law shouldn't have to say this, but does now say, okay, in accordance with the rules, and by the way, the rules must be in place before the election. No changing the rules after the election because you didn't like how people vote, because you don't believe in democracy, because you're monsters. So can you change the election day? Yeah, if there's a force majeure event, right, an act of God, a pandemic, a hurricane, whatever.

0:08:01 Thomas: Know, it never happened though, no.

0:08:03 Andrew: Right, with increasing frequency, then if there is, right, that law was passed that says, hey, um, we're gonna, going to hold our election open for three extra days if election day occurs on a hurricane, right? Election day shall include the modified period of voting, no, okay? We're not going to open the election because the turnout was really low in Republican areas, and we have a Republican legislature and a Republican governor, so why not? So kind of patching that up. That's the definition of election day. Then, didn't think we'd have to fix this, the Certificate of Ascertainment of the Appointment of Electors, it says, no, you can't meet in a parking lot.

Yeah, it, not later than the date that is six days before the time fixed for meeting of the electors, December 14th in the 2020, for example, just to put this in that timeframe, frame, the executive of each state shall issue a certificate of ascertainment of appointment of electors under and in pursuance of the laws of such state provided for such appointment and ascertainments enacted prior to election day. The form, each certificate shall set forth the names of the electors, uh, bear the seal of the state, which, shocker, the things that they made in, you, you know, MS Paint didn't have that, and C, contain at least one security feature as determined by the state for purposes of verifying the authenticity of such certificate.

0:08:44 Thomas: Parking Lots

0:09:32 Andrew: So it's up to each state to figure it out, but the state's got to say, like, yeah, okay, real elector things look like this. They have a watermark. They're on this kind of paper. They bear the original signature of our Secretary of State, whatever. Doesn't matter. You states figure it out, but you got to do at least one thing to make sure some dipshit in a parking lot doesn't call himself the duly appointed elector of New Mexico, as actually happened, right? Then it specifies that that's transmitted to the archivist and that the treatment is conclusive, right, does, does conclusive mean, right, that the people who are on the real elector form are the real electors. Now, what happens if there's an actual challenge?

0:10:18 Andrew: Well, I'm skipping over some additional sections that again have changing the language to say the rules are the rules as of prior to the election, right? We have the new Section 15, what about objecting? This is called counting electoral votes in Congress, and here are the changes. So Congress shall be in session on the sixth day of January, succeeding every meeting of the electors. The Senate and the House shall meet in the House of Representatives at the hour of one o'clock. That doesn't change. And the President of the Senate shall be their presiding officer, subsection B, powers of the President and of Senate, sub-subsection 1, ministerial in nature, shouldn't have to say this, but except as otherwise provided, the role of the President of the Senate while presiding of the joint meeting shall be limited to performing solely ministerial duties, defined in section two as, the president and the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors or the votes of electors.

0:11:07 Thomas: Yeah.

0:11:22 Andrew: The procedure, the requirements for objection is now not, can you convince one traitorous asshole? But it is, no objection shall be in order unless the objection, one, is made in writing. Two, is signed by at least one One -fifth of the senators duly chosen and sworn, right? By the way, there were only eight who were willing to support the insurrectionists this time out. You'd have to get 20. And one -fifth of members of the House of Representatives, there were 138 treasonous members of The House of Representative, so that would not have been a problem. But that to me to be a good compromise, right, right? You got to get 20 senators to say, okay, there's something wrong with how this vote happened.

0:11:20 Thomas: No doy, added in parentheses After That, yeah, yeah.

0:12:07 Thomas: What would that be in a non-coup, like

0:12:10 Andrew: So, you know, we could talk about like the election of 1876, for example.

0:12:15 Thomas: Course, yeah, I don't, silly of me, sure.

0:12:17 Andrew: Well, So that's Samuel Tilden and Rutherford B. Hayes. It's one of those that's been on my list for a while, but, um, following scenario, uh, that is, you have, well, take, take 2000, and let's just sort of modify it up a little bit. Let's say you have a recount going on, um, that recount is very slowly showing a persistent change from, uh, and let's reverse it, right, so that we're being less partisan here, right, showing a persistent gain by the Republican, right, they are, uh, say that, um, the underlying anomaly, again, no fraud here, right, just like, um, none of the allegations in Trump 2020 were actually fraud, uh, but in 2000, for example, the allegation that Al Gore was making in Palm Beach County was not fraud, right, it was, was confusion, right? It was, you had tons and tons of Democratic ballots in

0:12:35 Thomas: Mm. -hmm. Yeah. That weirdly went for Buchanan, who was it

0:13:19 Andrew: That went for noted anti-Semite Pat Buchanan. And it was like, I don't think all these Orthodox Jews showed up to vote, like, straight Democratic ticket all the way down the table. But boy, I like that Nazi sympathizer at the head of the ticket, so, right. And there were the the butterfly. So that was the butterfly ballot problem. There were undervotes, there were overvotes to hanging chads, all of that. They were, we think these things are being miscounted. And so what we want is to, to just figure out what the actual vote total was.

And then, and suppose that is, uh, starts off a 523 vote difference, uh and gets within like like 190, 80, and then there's court injunction to stop the recount from continuing, which is what happened in Florida. And then suppose certification day hits, which was December 14th here, right? And again, is affixed at a particular time. You would have, that recount has been paused, On December 14th, let's say the Democrat is ahead, and let's say then the electors meet, gather, are certified, and because Florida inexplicably has a Democratic governor by then, and a Democratic state legislature, yeah, they sign off on it, and then the injunction ends because that's over, and two days later, the recount continues, and the the final recount shows the Republican actually ahead.

0:13:22 Thomas: Yeah. -hm. Yeah.

0:14:32 Thomas: Weird. Bizarro World But yeah, okay. Oh.

0:14:48 Thomas: And this is all within the, like, safe harbor date or whatever, oh.

0:14:52 Andrew: It's all, no, no. Let's say that the certification was before the safe harbor date, but the recount ends two days later, December 16th, still before the meeting of the electors, right? Well, then the state might have a rule that says if we have actual knowledge in between, because the safe harbour says, if you get your votes into us by X date, they're presumptively valid. But presumptively valid doesn't mean the state can do nothing about it, right?

0:14:59 Thomas: Oh. Okay. Oh.

0:15:18 Thomas: It Only goes One Way, I guess.

0:15:20 Andrew: Yeah, exactly. Even though Bush v. Gore tried to imply that it went the other way, you would then – the state could get together and look at it and go, yeah, I get it. Sorry we were late. We're going to issue a corrected slate, right, and we're going to send a Republican slate. Again, not unlike 2020. We're not going to get – they're not gonna get the Republicans together in a parking lot. We're gonna get them together at the Capitol. It's going to be on the stationery, it's going to follow all the procedures, it is going to have the state seal and it's going to say this one supersedes the previous one. And now you'll have that the ministerial vice president will say for the state of Florida we have two competing slates of electors. And then 20 senators would get up and say we have an objection to the first slate or to the second slate, it doesn't matter. And then you would go off and deliberate in the houses the way they did.

0:15:21 Thomas: Okay. Right.

0:16:10 Andrew: And then Congress would get to decide which slate is valid. That's the way the Electoral Count Act works. So are you saying like under those circumstances, could a Democratic Congress go, yeah, I'm sorry, too late. You snooze, you lose. We know that the later corrected one two days later had the Republican up, but we're just going to take the Democratic ones because we like it. They could do that, right? Would that be a travesty? I think that would be a travesty. So, you perfect. That situation is at least a very different than, you know, we can make stuff up at any time up until the date of the count and, you Know, throw everything into chaos.

So that's, I think, an example of how, yeah, the revised objections particularly. So those are the changes in broad. There are some others, but those are the ones in the main. Like I said, it's also a slight hedge against the independent state legislature doctrine, which I think is a plus. It also contains, machines, that's title one, title two is the Presidential Transition Improvement Act, and I don't know if you remember GSA, Emily, Emily Murphy, who delayed the authorization of transition funds to the Biden administration

0:16:51 Thomas: Yeah, that makes sense, oh.

0:17:19 Thomas: Yeah.

0:17:19 Andrew: Until November 23rd, right, kept coming again, well, you know, we're, we don't owe, and you're like, dude, the election was, you know, two and a half weeks ago, we, we know, um, she held it up for as long as she possibly could because she's a hack. New rules that say, for purposes of this act, the apparent successful candidate for the office of president and vice president shall be determined as follows. Number one, if all but one eligible candidate concede, well, that's pretty obvious. Number two, if on the date that is five days after the election, more than one eligible candidates has not conceded, then each of the remaining eligible candidates who have not conceded shall be treated as the apparent successful candidates until such time as a single candidate for the office of president is treated as the apparent successful candidate pursuant to Clause 3 or Clause 4.

0:17:20 Thomas: We're

0:18:10 Andrew: So the major, and then, you know, it goes through and talks about how you have some some additional extrinsic evidence of determining whether that candidate ought to concede or not. The general approach is, if we're five days out, we wait to see. If it works the way it normally works, then the candidate left standing is by definition the apparent successful candidate. Give them access to the transition funds and information.

If they haven't, then use your best efforts to determine, but until you determine, we're going to treat both candidates as if they are entitled to transition funds going forward. That is not perfect, but in a world in which I expect Republicans will never concede again, having the default be things will work instead of things will be broken is, I think, what you have to do, right? The existing rule was only only one person got access to transition. The new rule is fine if you have a Republican throwing a tantrum in the White House. We'll let them both access transition funds. And yeah, but guess what? The president is already wasting all the funds that he has access to in the waning lame duck portion of his term anyway. So he's probably not doing any more stealing than Trump was doing already and whatever. Give to the transition funds so that we can get on with the business of having an adult take over in the government. Go.

0:19:42 Thomas: This is good news and

0:19:43 Andrew: Just very good news. And again, this is not executive order. Yeah, this is a law. Yeah.

0:19:47 Thomas: Quietly, Biden's having a really successful end to to his first two years here and data is looking better. It's weird. I'm not the optimist, but I don't know. There's a lot of signs that, that could make him stronger than I was thinking he would be. I don't want him to run in 2024, but he's going to, I'm sure. And, and I don't know, it sort of reminds me of like Reagan's first two year. And this is obviously the bizarro evil universe example, but Reagan's two years were terrible and then things turned around and then, you know we had Reaganism for decades like as the so uh I don't know if it'll be that but like as bad as it has felt for the first two years of Biden in certain ways I don't know maybe there's a maybe there's a bright side there's a lot of legislative success in the lame duck and the end toward the end of this what do you think I

0:19:52 Andrew: I think that is exactly right. I think it is borne out by the numbers, um, you show, uh, pretty consistent tightening, uh, favor of Joe Biden, um, the summer period, right, July, August, uh, know when gasoline was five bucks a gallon, well it's it's down under three bucks a gal in most of the country now, you know, not California.

0:20:55 Thomas: Drive an electric vehicle, how much is a gallon of electricity, right?

0:20:58 Andrew: Now.

0:20:58 Thomas: Now I. don't know.

0:20:58 Andrew: A gallon of electricity is, you know, four quasawatts, but Um, arguments seem kind of dumb now, right? And, uh, and and you are, I love the, uh, '82, uh, comparison because, uh, Reagan's Republicans got wiped out in the '82 midterms, um, was looking like a disaster, and in two years they they turned it around into the largest, uh, landslide in presidential history.

0:21:01 Thomas: Yeah. Gosh Imagine an alternate history in which Reagan was a one-term president, boy, that would have been a better better world so

0:21:29 Andrew: Yeah uh better world, but uh, not the one in which we inhabit, um.

0:21:34 Thomas: A bit of optimism there, you go, and that leads us into Liz Die, so let's get on the line with Liz Die and talk about, uh, the worst lawyer. Oh boy. And episode is brought to you by ZipRecruiter. If you're hiring for your company, this is a busy time of year because you've got new 2023 goals, which means finding the right people to accomplish them. You also have new hiring challenges for 2023, like finding qualified candidates or adjusting to candidates' work preferences. But thankfully, there's a place you can go that can help you conquer these challenges and achieve your hiring goals. And I've always said, as someone who used to hire people at my old job, that is something that you need help with because the more time it takes to find the right person, the more work piles up and then you get behind and then you feel like you don't have time to keep looking for the right person. It's this cycle that can really leave you behind in your work. And so that's why I think if you are looking to hire somebody, try ZipRecruiter.

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0:23:19 Clip: Arrest a husband and wife for the same crime. Yeah, I don't think that that's true, Dad. Not that we're still...

0:23:29 Thomas: We're joined by Liz Dye, so happy to have you on the show, I'm glad we squeezed you in, even though we're on the two show a week, the measly two show week format right now, but it's great to have you, I am excited to talk about this Cassidy Hutchinson stuff, how are you doing?, couldn't be better, just fully rested and ready to record,

0:23:43 Liz: How are you? You go.

0:23:49 Andrew: I'm just excited that we have, we have Liz back. We're going to talk. Hutchinson's testimony was so significant that there was an entire release period that was just her transcripts, right? I think she spoke to the committee on four occasions. And as we talked about last week and kind of previewed, going to be one of the featured witnesses in any trial of Donald Trump on any of the charges that have been referred out by the January 6th committee or on anything else that gets charged with other than the Naralago stuff. I don't think she knows anything about documents. Lot of good things going in her favor. Her. She seems very trustworthy, believable.

0:24:34 Andrew: It's an easy story to tell. Some of these other folks who, we've talked about Richard Donahue, for example. Donohue was going to have to skirt the line between, I'm surrounded by idiots, sycophants, and morons who are trying to destroy democracy as we know it, and what'd you do? Well, I served until January 20th. Right, like, you know, like that's good. Defense lawyer is going to probe those kinds of questions. Cassidy Hatchington has a really great story to tell, which is, you know, yeah, that I was 12 and I was in a little over my head and I was idealistic and I thought that I was getting to be a part of something until, uh, watched this sort of horror show deteriorating around me and I didn't know. And there will be contemporaneous conversations with other folks, you like Kayleigh McEnany, where in which she said those things. So good things. Hutchinson also was initially provided a lawyer paid for by the Trump campaign. And Liz, this is where your expertise comes in.

0:24:54 Thomas: Yeah.

0:25:36 Liz: Mean, I don't know that I would call it expertise, maybe like indignation or horror. The things that they did to this person who was young and idealistic and financially dependent on them were just appalling and gross. I I mean, she really was a kid. Like, this is a person who couldn't rent a car during most of this stuff. I believe she's 26. So what was she, 24 at the end of the Trump administration? She was a kid. She had no money. She had No job.

These people constantly dangled jobs in front of her, said they were going to take care of her and, you know, used her and did it in such a way as to bury the incriminating testimony, which she had to give. She will be the first witness, and she could be the only witness, and it will probably work at Stephan Passantino's inevitable bar complaint. He is a member of the D.C. Bar, and the D。C. Bar, as is shown with Rudy Giuliani in the past couple of weeks, is kind of done with this shit. So I am quite sure that someone's going to file a bar complaint against him, and I am quite sure that she will be a witness in

0:25:52 Thomas: Is

0:26:01 Andrew: Wow. Yeah. So

0:26:46 Liz: That complaint. Complaint.

0:26:46 Thomas: That All Is That all you get as a bar complaint?

0:26:50 Liz: I mean, it depends what they say, right? You know, are things that are a little on the edge and there are Things that are grossly on the Edge. I'm sure he'll deny it. And you know, she's a pretty compelling witness as she has proven. So we shall see.

0:27:01 Andrew: Well So let's delve into some of the specifics and then we can talk about the the bar complaint and we can talk about sort of the you larger, uh, criminal, uh, that this might have, uh, for Passantino and for sort of a larger Trump scheme. I

0:27:17 Liz: Okay. So I think it's probably best to go back to the beginning and talk about how she got in with these people. Cassidy Hutchinson learned in early 2022 that she was going to be subpoenaed by the committee and she was freaked out and she needed to find a lawyer. And what she wanted was to find somebody who was not in Trump land, because she knew from having been in with these people that if she took money from them, she was gonna be beholden to them.

And she tried very hard to try, try and not be with them. Uh, she was going to engage somebody from Evan Corcoran's law firm, um, Thompson, Slutkin, Silverman and White. I believe I got those names out of order, but she wanted to engage from somebody from that firm. And in the beginning they said they would represent her pro bono, but when she finally got subpoenaed, um. Gave her some kind of story about Mark Meadows had stopped cooperating with the committee. And so they were going to to have to charge her $150,000 retainer, which she did not have because she was a kid and she didn't have a job.

0:28:19 Andrew: I just want to say for the record that I do not have a hundred and fifty thousand dollar retainer, so Yeah, um, sure.

0:28:23 Thomas: Why

0:28:25 Liz: Assume you have the resources to get that. She did not have the resources to, to get the retainer. So she, she knew she was going to be in trouble. So she went to Trump world and she started working all of her connections in Trump world. At which point it appears to have occurred to them that this kid had been in the room when all of this stuff went down and it would behoove them to find her a lawyer to keep her on side, which is what they did. So she kind of, she was talking to Susie Wiles, who is, who, Florida guru. She's really big in Florida politics. And Pam Bondi, the former attorney general of Florida, and attorneys like Eric Hirschman, who said, oh, we didn't know you hadn't been taken care of. And this is such a bad position for you to be in. And, you know, like I have respect for that guy. I think he's really tough, but he's a snake.

Um, so he kind of promised that they would take care of her and Alex Cannon, who was also, um, a Trump land lawyer hooked her up with Stefan Passantino, who had been in the, um, House as an, an ethics lawyer, which is like a contradiction in terms, but there it is. He had also represented Ivanka Trump. He had represented Eric Hirschman. He had argued, um.

Both for the Trump campaign and I believe for the Trump administration, for many of Trump's more ridiculous positions on privilege, that he'd been immune from testimony and immune from being investigated when he was in office.

0:29:02 Andrew: And

0:29:53 Liz: He was all the way up in Trump world. And she knew if she got in with him that she was never going to get out and that he was, in some sense, not going to be her lawyer. And she didn't have a choice. She didn't know how to get in. She didn't have any money. And the clock was ticking and it was early February and she had to respond to the subpoena. So she accepted, she accepted the services of Stefan Passantino. She knew it was hinky from the jump. Go

0:30:16 Andrew: Me Just jump in, because you mentioned bar complaint, and, and I want to be specific now with respect to Rule of Professional Conduct 1.7 of the DC Bar. And, and OA listeners, uh, will understand the significance of this language. A lawyer shall not advance two or more adverse positions in the same matter, that's sub-point A. Sub-point B is, except if you clear the conflicts check, a lawyer shall not represent a client with respect to a matter if the matter involves a specific party or parties in a position to be taken by that client in that matter is adverse to a position to be later by another client in the same matter, even though the client is unrepresented or represented by a different lawyer. So I want to be clear for our non-lawyer listeners, as I interject here, and I know you're going to get into some of the very, very gross specifics.

0:31:09 Andrew: At the outset, that representation, in my view, is sanctionable, if not disbarable. Right. Like this is, you know, you are getting ready to advance to contrary interests. And in particular, the underlying purpose of this rule, Donald Trump, buying through his campaign, is paying for the lawyer who will now be providing advice to a second client to take a position that is detrimental to that second client's interest in favor of the client who is footing the bills. This is not a close call. This is not a, like, at the edge. And I think that's why you led with, you know, at Passantino's disbarment hearing, because

0:31:57 Liz: So, so she showed up and it was, it was Hinky from The Jump. I also looked at the DC rules of professional conduct, and it doesn't appear that DC requires an engagement letter. Some, some jurisdictions do. It doesn't occur that DC does. But she wanted to sign an engagement letter and he said, no, we're not doing that. And she said, who's paying for this? And he said we're discussing that right now, which is clearly not acceptable. It's totally unethical. And he had obligation to disclose that to her and he didn't. And only disclosed it later when he said if you take a specific course of action, which we can get into in a minute, if you you take a specific course of action, which you would like to take, the Trump will stop paying your legal bills. So, you know, you don't know who the real client is.

0:32:44 Liz: The client is the one who gets to call the shots. And, wasn't able to call the shots. She wasn't the real client, which is what she knew was going to happen from the beginning. So she shows up, she says, um, can I sign an engagement letter? He says, no. She says, who, um, who's paying? He says, not telling. Um, and then they go to sort of, she wants to talk about being prepared for her deposition, because one of the reasons that the other attorneys she'd interviewed had wanted six-figure retainers is that they anticipated spending a lot of time preparing her for this deposition. And he said, there's no need for that. We don't have to meet at all. And don't print out your calendar, because if you print out your calendar, then you'll be able to answer questions with specificity. It's better for you not to know something. And if you don't know it, you can just say, I don't recall, which is the goal here for everybody. And what do you think about that, Andrew? Do you have any thoughts? I

0:33:34 Andrew: Yeah I Do Have some thoughts on that, and let me say that I think, stands in kind of contrast to the plain language of 1 .7a. .C. Rule 1 .5b does say, well, it doesn't say you must have an engagement letter like some jurisdictions.

It says, when a lawyer has not regularly represented the client, which is the case here, the basis or the rate of the fee, the scope of the lawyer's representation, representation, and the expenses for which the client will be responsible shall be communicated to the client in writing before or within a reasonable time after commencing the representation. Those are the kind of things that you put into an engagement letter. So, you know, while that might not be a, hard and fast rule, it certainly is.

I do not know any lawyer who practices in the District of Columbia that Does not follow the standard practice of an attorney for getting an engagement letter with your client the second you hear the kind of, of, was going to say hankiness, but like it's worse than that. The, you know, don't worry your pretty little head about who's paying for this, that's a, that's assigned to run. And then, with respect to the substance of the advice, differ as to when you are required to educate yourself about a subject that may be within your knowledge.

Sometimes that's up to the questioner to ask a follow-up question, right? You know, it's good practice in a deposition, in an interview session, and certainly to tell a witness that, you recall, is not a great answer for a whole lot of reasons, even when it's not a lie, because a good lawyer will ask you, well, is there something that might help you recall?

0:35:18 Andrew: You have to answer that. And you have say, oh, yeah, well, I have a calendar, I have diary, I this, I that. Well, did you, you consult that at any time prior to coming in here? No. Okay. We're going to hold this open. Yeah, right, yeah. And you say, why not? And then your lawyer says, objection, that would require revealing attorney-client privilege. Um, boy, we're off to the races, right?

0:35:29 Thomas: Not Of this stuff sounds to me, or to, like, a really cynical about lawyers person, which I think a lot of our audience is, this sounds like run-of-the-mill, like, being a dirtbag lawyer. What, what, what? What exactly ventures into the like, no, this is unacceptable, you know, disbarrable, whatever kind of stuff.

0:35:59 Liz: I don't think it is pretty run of the mill. I mean, I think it's run of the mill for like on TV and it's the way that you broadcast that you're a dirtbag. I DON'T think most attorneys conduct themselves this way. I mean, it leaves you open for all kinds of things. Like, look, I found the passage. So here's how how she described in her testimony, trying to figure out who was paying the bill. Although I think she basically knew the whole time. So then I had asked him, all right, well, that's perfectly fine. Would you mind letting me know where the funding for this is coming from?

I want to thank them, want to say whoever it is, because I'm just trying to kind of like figure things out. And he said, if you want to know at the end, we'll let you know, but we're not telling people where funding is coming From right now, don't worry, we're taking care of you, like you're never going to get a bill for this. So if that's what you're worried about, I was like, okay, that's what I was worried about. She says, adding, wasn't the only thing I was worried about and she, she knew, I mean, this is so sleazy.

0:36:05 Thomas: Yeah.

0:36:56 Liz: So I don't think that it's the run of the mill dirtbag lawyer stuff. I think this is like extra special dirtbag lawyers stuff. Like you get disbarred stuff. So what do you think, Andrew?

0:37:07 Andrew: Yeah, no, I agree with that 100%.

0:37:10 Thomas: I think it's the TV tropey stuff that I think a lot of a lot of us non-lawyers have in the back of our minds.

0:37:17 Liz: Thing, which, you know, so I guess probably a lot of your listeners have been following through all of the Mueller report stuff and will remember all of those joint defense agreements where basically everybody was in cahoots to make sure that, you know, anything that was asked and all testimony got shared among like 12 people.

Here's another bit of her testimony where she's talking about realizing that Trump's attorney, Justin Clark, and also Alex Cannon and a bunch of other people like Eric Hirschman were going to get anything that she gave to Passantino. She says, Stefan had told me that towards the end of the day that because he was involved with Elections LLC and tangentially, I guess, Trump's PACs, he had law partners.

And unless I was extremely unwilling for him to share, he said it would be natural for him to have to share that information with the people that he works with that are his partners and are involved in Trump world. That's not cool, right? That's, that's not like your typical lawyer stuff, like, oh, please abrogate the attorney client privilege so that I can share anything you tell me or anything you tell the committee with everybody in Trump world, that's not normal. And, you know, for him to say, to not kind of let her understand the implications of that and whether it was good for her as the purported client, that is not normal for him. That's real hinky. What do you think, Andrew?

0:38:08 Andrew: Yeah, No, I, that leads into sort of item number five that is in the executive summary to the January 6th committee's final report in which they're talking about the referrals that they make out. And so the press has covered extensively the actual enumerated criminal referrals, one, two, three, and four. We've talked about them at length on this show. You've talked about them. Fifth category, in the committee says, we evidence, and we encourage the appropriate law enforcement officials to take notice of this fact, of efforts to obstruct the committee itself, to tamper with witnesses, and to me, this line of questioning and that uh testimony that they already have when they say we have evidence, they mean they have Cassidy Hutchinson's testimony, and later goes on uh say that, you know, there's essentially a representation made that's like, like, oh, yeah, no, you know, goes through and pays attention to these transcripts when they get back to him, right? You know, as, as

0:39:39 Liz: And she was terrified. She was legitimately terrified because she had seen what Trump world would do to people that it perceived as disloyal. That was that was her main fear. She was trying to game it out six ways from Sunday because she knew that if they put a target on her back, I mean, look, she had just watched them send a of armed people to sack the Capitol. She knew what they would do. And she'd seen Trump's Twitter feed. Here's another great quote you're going to love. So she says in the same conversation, Passantino said, so if you have any conversations with any of them, especially Eric Hirschman, we want to really work to protect Eric Hirshman. And I remember saying sarcastically to him, Eric can handle himself. Eric has his own resources. Why do I have to protect Eric? He said, no, no. Like just to keep everything straight, like we want to protect Eric with all of this.

0:39:42 Andrew: Yeah.

0:40:28 Liz: Well, Eric wasn't the client or Eric wasn't supposedly the client and her job wasn't to protect. Eric, her job was to give truthful testimony or to protect herself. But why, you know, if who is the client, the client is the one who is getting protected here. And clearly that wasn't her. Um,

0:40:47 Thomas: Yeah, it's like the old if you look around the poker table and you don't see the person who's getting protected, then you're the client. No, they're the clients. I don't know. That doesn't work. Never mind. Scratch it.

0:40:47 Liz: Yeah, exactly how it goes. Yeah.

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0:42:36 Andrew: This, this me, right. Classic 18 U.S.C. 1512 B witness intimidation, right? And that is Whoever knowingly uses intimidation, threatens, or corruptly persuades another person or attempts to do so, or engages in misleading conduct towards another person with intent to influence, delay, or prevent the testimony of any person in an official proceeding. So break that down to its constituent parts. What you have to show is the folks in Trump—those be the folks who get charged with this, right? It came from Donald Trump or whether it came from a low, a layer lower than Donald Trump, that somebody was using intimidation. Well, you just read that Liz or corruptly persuading another person.

0:43:25 Andrew: And that was the first set of things that you read, Liz, or engaging in misleading conduct, which is everything you've read, to the testimony of another person, to wit, Cassidy Hutchinson, in an official proceeding, to wit, the January 6th committee's investigation. So, you components do not seem that difficult to put together to me, to say, you, this looks like, uh, know, when the mob boss says, yeah, you know, we'll get, we'll give you a, you know, Squealy Pete over here is your lawyer, and, uh, you know, he's just going to make sure everybody's all on the same page, capisce, oh

0:44:01 Thomas: Is this lawyer Squealy P and never mind

0:44:04 Liz: A little weird. Um. You hear banjo music. Um but if you like that there's... there's like infinity more where that came from. I've got another quote for you. So he's um so um Cassidy Hutchinson is describing her conversation with Pasatino. He was like did did you overhear things? And I said, yes. And he said, were you in the meetings? I said not all of them, but I was in some of them. He was like, well, if you just overheard conversations that happened, you don't need to testify to that. So if I overheard it from a member, do I have to? And he says, it's circumstantial. We can talk about it. So I said okay.

0:44:10 Andrew: Good yeah

0:44:36 Liz: I don't think that's what circumstantional means. I think that that's how the rules of evidence work. I I don't think that's how perjury works. I don't think any of that works like that. That's very clearly him trying to tell her, you know, you don't have to say the things that you did. And at various points, he said, well, it's not your, Mark Meadows put you in this situation where you were in the room and it's Mark Meadow's job to tell the committee about this. It's not, it's not your job to tell the committee about this. Or Tony Ornato, the secret service agent who told her about this event, which happened in the presidential limousine when the Secret Service agent told Trump that he wasn't going to drive him to the Capitol to supervise the, you know, the riot, that was Tony Ornato's obligation to tell the committee. And if Cassidy Hutchinson said

0:44:30 Thomas: Hmm circumstance yeah even I was gonna say circumstantial what so

0:45:28 Liz: She didn't remember it, that was fine. It wasn't perjury, even though she remembered it perfectly well. So

0:45:33 Thomas: That's not great this just really sounds to me like someone who knows the circumstances, you already described, someone who know they have a 24 year old who maybe doesn't know much about the law, and it's just going to bullshit them to get what, it just manipulate them to get what they want right

0:45:34 Andrew: No that that, that is spectacularly terrible advice, um

0:45:51 Liz: Here's another. He said, if you don't a hundred percent recall something, even if you you don't recall a date or somebody who may or may not have been in the room. That's an entirely fine answer. He's saying, I don't remember. And we want you to use that response as much as you don't, as you deem necessary. I said, but if I do recall something, but not every little detail, Stefan, can I still say I don'T recall? And he said, yes. And I said. But if I DO remember things, but not EVERY LITTLE detail, and I say I DON'T recall, wouldn't I be perjuring myself? And Stefan said something to the effect of, the committee doesn't know what you can and can't recall. So we want to be able to use that as much as we can, unless you really, really remember something very clearly. And that's when you give a short, sweet response. The less you remember, the better. I don't think you should be filling in calendars or anything. I do not remember if

0:46:36 Andrew: Yeah

0:46:37 Thomas: In a given testimony. If you know everything that happened, like, I saw Andrew with a knife, you know, commit the murder, but I don't remember what color shirt he was wearing, so I'll just say I don't remember, so it didn't happen, yeah

0:46:47 Liz: It was Tuesday or Thursday. So I do NOT recall. Perfectly fine. Didn't happen.

0:46:52 Andrew: A -up, because, I mean, this is, this is such a common aspect of this. I mean, Liz put it best when she said there are infinity more examples of this, um, testifying that, that she did not recall the Tony Ornato incident in The Beast, then describes meeting with Passantino afterwards, after having talked to the committee, and says, quote, "it's like this little fishbowl room adjacent to Reince Priebus' office. And once we closed the door, the glass door, I looked at Stefan and I said, Stefan, I am effed. And he was like, don't freak out, you're fine. And she said, no, Stefan, I'm effed, I just lied. And he said, you didn't lie. And I said, no, Stefan, do you know how many times they asked me that question? I just lied. And he said, they don't know what you know, Cassidy."

0:46:53 Liz: Yeah.

0:47:39 Andrew: They don't know that you can recall some of these things. So you saying I don't recall is an entirely acceptable response to this. They're prodding. They want there to be something. They do not know that there is something. We are not going to give them anything because that is not important. You are doing great. You you're doing fine. You're doing exactly what you should be doing. Goes on. Yeah, no, we tell you don't take legal advice from a podcast. Certainly do not take it from Stefan Passantino. That's not appropriate. A when witness tells you, when your client tells you that they have lied on the stand, and I have had that happen to me infrequently, but I've had that happened to me in career, you have an obligation to the court to correct that. Lawyer may not knowingly suborn perjury, and that includes your client testifies and then comes out after your words and says, yeah, man, I just lied. No lawyer wants to be in that spot, lot, but you have an ethical duty to go clean up that testimony and make it not a lie.

0:47:58 Thomas: Yikes

0:48:39 Liz: Is that that what he did?

0:48:40 Andrew: No, that's not at all what he did. He encouraged Her to do more of that stuff. Reason I interjected is because I was shocked by the similarity, right, again, this is part of, you, you get a feel for, uh, a witness is accurately conveying, uh, know, what they remember and and what makes them a good witness is, you know, boy, if, if you've used that same sort of speech patterns and that, that same sort of a prayer, that, that tends to add a lot of credibility to, like, oh yeah, he, in there, and over and over again was just like, well, you know, they don't know what you know, so we're not going to tell them, so you're probably going to be fine with, you know, just lying. Oh,

0:48:41 Liz: No. No.

0:49:21 Liz: Also at the same time this was going on, all of these lawyers in Trumpland were dangling offers of employment in front of her, which all mysteriously disappeared when she didn't do what they wanted her to do. Multiple lawyers, Hirschman, Alex Cannon, Pam Bondi, that her, we're going to take care of you. You're going be financially fine. She was possibly going to work at Getter, which is Jason Miller's Twitter knockoff site. Well, that didn't work out for her.

0:49:35 Thomas: Yeah.

0:49:47 Andrew: Good.

0:49:49 Thomas: Dodged a Bullet. There, Yeah. At What point is this, criminal, does this ever become criminal? I mean, can you really just offer someone a job to to testify the way you want? Okay.

0:49:51 Liz: Yeah, yeah.

0:50:00 Liz: Mean, I believe that Roger Stone was convicted of witness tampering. So yeah, that's a thing that happens for sure.

0:50:08 Thomas: Good, is that, is that happening, or is there any indication that we're Going to get that It's

0:50:13 Liz: I don't think that it's going to happen. Like, look, there's just a whole lot of criming going on. You're going to have to give Jack Smith a minute to get his feet under. Yeah, right. I mean it is. It's like it's like the gift with the dog and eight million tennis balls. But this is bad. And I don't know for sure what's going to come back around, except I know for 100 percent sure he's going to get a bar complaint in D.C. because the 65 Project files, you know, files those things every week. They are all over every lawyer who's been up in this business. And I'm quite sure they're going to file a bar complainant. And 65 Project is one of these kind of good government groups. I think it's more accurate to describe it as a pissed off lawyer group,

0:50:18 Thomas: Too Much. Yeah. Okay. What's The 65 Project again? Oh. Why?

0:50:53 Liz: An appalled lawyer group that files bar complaints and has filed a lot of bar complaints against and Jenna Ellis and Rudy Giuliani and all of the other appalling lawyers that that did this, that kind of provided cover for an attack on democracy, that used the imprimatur of their law licenses and their reputations to say that this was legal when it so very clearly was not. So, one of the reasons that Rudy Giuliani and Sidney Powell are in hot water is because these groups groups compile, I wouldn't use the word dossier since it got sort of sullied in the Trump administration, but they do compile dossiers on these people and they do file bar complaints. And I am quite sure that Stefan Passantino is on everybody's radar.

0:51:41 Thomas: They've got binders full of bar complaints, that still good reference, We'll say That. Yeah.

0:51:44 Liz: They absolutely do. And it's going to be a really big, it might be two binders for Stefan Pass antino because this is is just appalling.

0:51:46 Andrew: A good One. Well, And, and just to, to kind of close the loop on, on your question, I, we, we talked about 18 USC 1512 covering witness tampering from the negative standpoint, right, corruptly influencing or threatening, threatening to use force, that, you know, that sort of thing. Um, flip side of it is bribing a witness in connection With a public proceeding, and that is 18 U.S.C. 201. And it, it says, whoever directly or indirectly, corruptly gives, offers, or promises anything of value to any person with intent to influence the testimony under oath or affirmation of, as a witness, upon a trial, hearing, or other proceeding before Any Court, Committee Of either house or both houses of Congress. Right. So shall be imprisoned for not more than 15 years,

0:52:13 Thomas: We'll Get A real talking To, is that how It ends? No, Wow.

0:52:42 Liz: Exactly.

0:52:50 Thomas: Not

0:52:50 Andrew: Or both and maybe disqualified from holding any office of honor, trust or profit under the United States. So, again, these are serious felonies of there seems to be at least prima facie evidence that is worth pursuing here.

0:53:05 Liz: Will give them credit though. They appear to all have had a little more sense than like Rudy Giuliani, who is a septuagenarian. These people are all in their forties and fifties and are a little more tech savvy. So they, according to Hutchinson, were pretty reliant on things like Signal, which disappear the messages automatically, automatically. And like Johnny McEntee and other witnesses like Don Jr. have, you know, we've all been reading their testimony this week, and they were pretty good about setting auto-delete on 30 days so that anybody who came after them would not be able to recover their messages. And so I suspect that whatever, whatever, I mean, Cassidy Hutchinson's a great witness in part because she's like the original Trapper Keeper girl, and she's, you knows, she takes notes on everything, and and she's, I mean, that's why she was

0:53:14 Thomas: Hard to do, you

0:53:53 Andrew: And

0:53:53 Liz: In this position of responsibility, right? Like that she was, she was hyper organized. And, and, um, so she's got notes on everything with dates and color coding and highlighted and whatever. Um, She's, She's got a lot of records of when things went down, but the messages themselves, um, unless she screenshotted them and she, she doesn't appear to have been in the habit of doing that, they're gone because these people used signal and, um, and auto deleted their texts. So smarter than Rudy Giuliani, but not smart enough not to do crimes.

0:54:23 Andrew: Yeah,

0:54:25 Thomas: Mean the the CEO of that uh tech security firm what didn't he doesn't even run what was that cyber

0:54:30 Andrew: Yeah, he's a cyber

0:54:31 Liz: Yes, that's right. Mr.

0:54:32 Andrew: Security expert.

0:54:33 Liz: Fraud Guaranteed. My God. Right. He can't even zip his fly up, but he's like he's going to consult with you. But that's because he's not he's he's being a lawyer. He's not being a lobbyist. That was one of his wheezes, why he didn't have to fill out the Foreign Agents Registration Act paperwork. Because he was being a lawyer, not a lobbyist. He's not a foreign agent. He's a lawyer. Well, not anymore.

0:54:34 Thomas: Security yeah

0:55:00 Liz: But, cashing a lot of checks.

0:54:59 Andrew: I was just running foreign policy in Ukraine along with my thugs. Yeah. Okay.

0:55:07 Andrew: Well, that's terrible. I feel like usually Thomas gets to use that line. So I wanted to be first in with that one. Anything else we need to know? All right.

0:55:14 Liz: It is. Mean, don't hire that guy, maybe. Okay, see, guys.

0:55:24 Andrew: Thank you.

0:55:24 Thomas: End of Story. Don't hire that guy. In his story, do we have any predictions of what's going to happen next? I mean, just the bar complaint stuff, do you anticipate any criminal pursuits of anybody on this, or just too many, uh, tennis balls? Nice.

0:55:36 Liz: Think there's just quite a lot of tennis balls, and I really wouldn't put it in any mind. I mean like, look, Look, he's, Passantino's far down on the list, right? Like, you know, there was a coup and they want to go for an easy prosecution, there's all of that other archive stuff. So I think Passantinho is pretty far down on anybody's list, but I would be all over that Barr complaint. That's, that's coming.

0:55:57 Thomas: All right, well, thanks as always, Liz, appreciate you coming on, and, uh, screw that guy. He All right.

0:56:02 Liz: Not Not great, Bob.

0:56:06 Thomas: Take care, and we'll see you soon, Liz. All

0:56:06 Andrew: Thank you, Liz, and

0:56:08 Liz: See you guys.

0:56:09 Clip: Sometimes you eat the bar, and sometimes the bar will eat you.

0:56:15 Thomas: Now it's time for T3BE, Thomas Takes the Bar Exam answer time. Each week I attempt to answer a question in this book that I actually, I love, I respect this book. It's a it's weird, it's tricky, I like it. Um, having said that, how did I do this time?

0:56:29 Andrew: All Right, this was Fast Food Company employed a student as door greeter, paid seven bucks an hour. On the second day at the job, they fell asleep uh on her feet, and the Fast Food Company terminated her employment. That student later sued and won damages of two weeks' pay against the Fast Food Company, and a very common bar setup of this was probably because, right?

And so when, when the bar gives you that kind of a prompt, what they're wanting, what they want you to know is, look, yeah, you can make a lot of different arguments for a lot of different things, but what's the best fit in this kind of issue spotting to the particular item on the answer. So, uh, 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. So, um, first is the question of, okay, if a student who's paid to be a greeter is obviously, obviously terrible at the job, right? Falls asleep on the job but wins damages anyway, suggests to you that there was probably a specific employment contract, as

0:56:29 Thomas: Yeah. Yeah,

0:57:43 Andrew: Opposed to an at -will contract, right, and you went through that, and so A

0:57:43 Thomas: Right, Nailed that part of it, at least, yeah,

0:57:48 Andrew: Is a better answer than B. If it were at will, you could fire somebody for a good reason, a bad reason, or no reason whatsoever. This seems to be a good reasons, so the question is if you fired somebody for good reason and they win some damages against you anyway, what would be the cause of that? Well, they might have an employment contract that you've breached. That's a good way to filter A over B. C is a condition precedent to the food company's performance failed. And here, it didn't matter. You eliminated the answer, and it's a Goodwin. Condition precedent to The Fast Food Company's performance failed, right? Means in a contract situation, the fast food company would not be obligated to perform under the contract.

0:58:33 Thomas: Wouldn't it be like, kind of neutral, it'd be like, "Ah, we're, it's not" our fault, that's

0:58:33 Andrew: Yeah. Yeah, that's exactly right. They would say, oh, so for example, you know, if one of the things that you have is an employment contract that says, hey, the employee has to return an I -9 and all the employment verification documents before we're obligated to pay her, right? And then she doesn't send you those documents. You fire her. She says, where's my money? You say, we don't have to give you any money because you didn't fulfill that condition precedent. We don't know if giving you money would violate the labor laws, so we're not going to giveyou any money.

0:59:08 Thomas: A little tricky, because it still sounds like a weird passive voice way of saying, "Oh, the employee actually effed up," right? Yeah.

0:59:14 Andrew: That's why that's worded in passive voice, because they don't want to clue you into the fact that C is the employee did something to relieve the employer of their burden.

0:59:18 Thomas: Oh, I was gonna to suggest is that, because there's also, are there also ways that C could happen that aren't the employee's fault? That's just like some other

0:59:30 Andrew: No, because if, well, sure, sure. If a condition precedent is, right, think about, we just talked in A segment, we talked about force majeure events. You might have, as a condition president, there not be, you know, a or,

0:59:31 Thomas: Oh, no, okay, yeah. Exactly, yeah, yeah, that's kind of what I was thinking, yeah, okay.

0:59:47 Andrew: So it could be neutral, but it couldn't be a failure of the fast food company, right? You can't control your own condition precedent. That would be weird.

0:59:54 Thomas: Yeah, so between A and D is solid so far, my second chance bar exam is still still alive.

1:00:03 Andrew: So That's exactly right, as you're working through. So it's between A and D. D says an employee does not give up all personal rights. Well, that could be the basis for a discrimination lawsuit. You could, you could easily fill out, like, OK, maybe the fact pattern does not mention, does not mentioned the other way that the student was diagnosed with narcolepsy, right? And that, you know, you needed to make some kind of accommodation under the Americans with Disabilities Act or whatever, right? I don't know.

You could come up with something, thing, but as between A and D, it seems much more likely, right, the employee, uh, that they had a contract that says, hey, uh, will work the first two weeks are your training weeks, for which you will be paid one hundred dollars, right, and, uh, thirty dollars will be deducted for your uniform, you know what I mean? Like, and, and, and if it just says you pay you for your first two weeks no matter what, um, they terminate you and say, yeah, well, we, we didn't mean no matter what to mean, you know, if you fell asleep on the job, you were to say, well, look, you said no matter what, not so pay up. And the court would say, yeah, that's right, you guys wrote the contract. Wanted to exclude gross misperformance, you could have written that into the contract, and you didn't. And I see contracts like that, I don't want to say all the time, but frequently enough. So what makes A a better answer than D, the, that you would need to engage in is a attenuated hypothetical.

1:01:39 Thomas: So you don't like my argument of, if D were the answer, then you wouldn't really have damages, that's based on two-week pay, most likely it's more, it suggests more likely an employment contract thing, yeah.

1:01:47 Andrew: Oh, the analysis you did. Certainly under employment discrimination, standard employment discrimination statutes, the typical remedy is reinstatement with back pay. And the hypothetical is just, oh, a fixed monetary sum rather than reinstatment. So I that goes hand in hand.

1:02:05 Thomas: Well, plus you don't, that there wouldn't be any, uh, punitive damages if you're discriminated against or anything? No.

1:02:13 Andrew: With that. There's anything here that, again, yet another assumption in, which is that they were malicious.

1:02:17 Thomas: I'm saying so you don't, in, in the, in the, in the case of somebody gets fired, and the, the answer here is an employee does not give up all their personal rights, I'm just saying that really suggests to me that the damages would not be two, like, it just doesn't make sense that that would be the damages most likely. All right, well, way to undersell the fact that I nailed this one, sounds like I had all the perfect analysis, uh, weird there,

1:02:34 Andrew: don'T and disagree with that, think I that's right.

1:02:42 Andrew: You had great, I am not trying not to shower you with never -ending fame and fortune for your exceptional analysis of a, what I would say is a very typical bar question, and And I mean that as a compliment, right? Is the kind of thinking that you need to do to work your way through the bar exam. And it's full of little minefields that are meant to trip you up and go, wait, is that against the employer or the employee? And so I think you navigated that exceptionally well. So good work.

1:03:15 Thomas: Was a Page new Patron last episode that was about an intern, can we get an excitement intern for Andrew?

1:03:20 Andrew: All right.

1:03:21 Thomas: Maybe get that going, wow, friggin nailed this one, that's incredible. All right, uh, let's find out, we're gonna have a winner again, sorry we didn't have one last time, winner was Remy last, last time, uh, but this time let's find out who, uh, this week's big winner is of T3BE, and, uh, you know, maybe Andrew will get a little excited for them, we'll see, I don't know, maybe not. It depends, freaking

1:03:39 Andrew: And I couldn't be more excited for this week's winner, who is? Thomas, this week's winner is BB underscore 5555 on Twitter, who writes, using the appropriate process of elimination strategy that I just outlined, I agree with Thomas's logic. I'm going with A as well. Can't be B or C. And D is a given regardless, so it must be A. Well, you know, works on the SAT, and sometimes it works on the bar exam. Oh, he adds, by the way, congrats on the new baby, Thomas. And if you're thinking Thinking that that might have helped gain a couple extra points in my selection. Maybe it did. We all love baby scombert. So congratulations, BB5555. Interestingly enough, let's give them a follow on Twitter. That is at BB underscore 55551.

1:04:32 Andrew: So apparently there must have been another one. But everyone, let'S give them follow and congratulations on being this week's winner.

1:04:41 Thomas: Now it's time to not thank our Hall of Famers, our all-time greats, because I accidentally did that, uh, last week, because we divided it into quartiles when it was a quintile month, so, uh, we'll just say thank you, so, so much to Famers, our all-time greats. This week, you all win the Conrad Michaels Chair of Excellence, the Field of Excellence, so thanks to all our Hall of Fame-ers. You're the best. You make the show happen. We love you.

1:05:08 Thomas: And That's our show. Thanks so much for listening. Thanks to Liz Dye for coming on and talking about a really terrible lawyer. Boy, there's a lot of those that we hear, hear about in the news these days, unethical lawyers of various kinds, this was a new flavor for me, uh, wow, um, but thank you, and we'll be back to our four episode a week schedule starting, uh, let's see, Thursday, so, uh, Thursday night, so there you go, we'll be back at it. Happy New Year, everyone. See you next time.

1:05:07 Andrew: We do see ya all

1:05:35 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.

1:06:09 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/YodelMountain 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.

1:06:46 Thomas: Is allegedly Here or somewhere, I don't know, what are you

1:06:47 Liz: Okay.