OA680: The Pathetic SCOTUS Leak Investigation Fizzles

Transcript

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

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 680. I'm Thomas. That's Andrew Torres Esquire. How you doing?

0:01:24 Andrew: I'm fantastic, Thomas. How are you?

0:01:25 Thomas: I'M GOOD. I just hope they find the real murderer. I think the Supreme Court and OJ are going to be looking to track down the The real leaker and the real murderer. Hopefully they keep, one day keep at it. One day they'll find who really leaked the thing. No, we're just, you know, people know we record on Thursdays. And in between recordings here, we got the news that SCOTUS is like, ah, we can't figure it out. Don't know. What do we make of that?

0:01:36 Andrew: Oh. Oh, yeah.

0:01:53 Andrew: So let's let's talk about all of that, because I think this deserves more just kind of a passing moment as to just how egregious this is. So to kind of set the stage, Samuel Alito wrote the majority opinion in Dobbs v. Jackson Women's Health, the case that overturned Roe v. Wade and Planned Parenthood v. Casey. Months previously, a draft of that opinion was released. Least. Chief Justice Roberts vowed, you the fugitive, you Know, to to visit every outhouse, doghouse, courthouse, and would not rest until the leaker was brought to justice. Want to add onto that before we start talking about it, that I'm going to include this link in the show notes.

On October 26th of this year, at a Heritage Foundation event, Samuel Alito said that the release of his draft opinion, quote, "made the justices presumed to be in the majority targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us," end of goddamn quote. Quote, "OK, was, it was a brave betrayal of trust by somebody," said Samuel Alito. Now, one of the things that we have learned since then, in fact, just about a month, three weeks after that I'm shocked, shocked to find gambling going on in this establishment. Bullshit statement by Samuel Alito to the bullshit American Heritage Foundation had a bombshell reporting in The New York Times, piece Jody Cantor and Joe Becker, that, in fact, Samuel Alito had leaked the draft opinion of his decision in 2014 in the Hobby Lobby case to a person then affiliated with the religious right.

0:02:26 Thomas: Yeah. Hmm. Yeah.

0:03:47 Andrew: The Reverend Rob Schenck. Included a letter that Schenck sent to the Supreme Court in connection with his I vow to get to the bottom of this.

0:03:59 Thomas: Like, in like, hey, I might have some info for you. If you're looking for leakers, let me tell you a story about this one time.

0:04:05 Andrew: Let me tell you a story about this. This one time when Samuel Alito wrote an opinion that was super favorable to everything the religious right had wanted for decades. Read. In fact, let me not put words in the reverend's mouth. Reverend Schenck, who I think is now kind of backed Away from the most conservative aspects of the religious. I don't know and don't really care, you know, where he is theologically, politically. He says, quote, back in June 2014, when so many awaited the court's decision in Burwell versus Hobby Lobby, indeed they did, I was informed by a donor to the Capitol Hill -based nonprofit organization that I led that she and her husband would be dining at the home of Justice and Mrs. Alito. She suggested that in their table conversation, she might be able to learn the status of the the case, something she knew I had an interest in knowing.

I received a follow-up message from her notifying she had indeed obtained the information during that visit. We spoke on the phone. She detailed the revelation. As I recall, we talked about the Green family, that was the bullshit plaintiffs, owners of Hobby Lobby, and how they too would be interested in this information. Yeah, you think?

0:04:27 Thomas: Yeah.

0:05:12 Andrew: The ensuing three weeks, I kept the sensitive information to myself, undetectably using it to assist me in preparing for the inevitable. That's a really important sentence, right? Because we've talked about like, you know, was this leaked by someone on the left to cause outrage or whatever? But we have seen the level of coordination between right wing activist sources and knowing in advance that an opinion is coming out in your favor helps you prepare for how you take advantage of the press when that opinion comes out. Right. A day or two before the opinion was released, I called Mr. Steve Green again, remember the CEO of Hobby Lobby, and reported what I knew of the court's finding. He thanked me. We did not speak about it again until after October of that year. Considering there may be a severe penalty to be paid by whoever is responsible for the initial leak of the recent draft opinion that is now going back to Dobbs.

0:06:03 Andrew: I thought this previous incident might bear some consideration by you and others involved in the process. I would be happy to fully cooperate should you find any value in any other details surrounding what I've transmitted here. Now, I want to add before we talk about what Roberts published today, I, to kind of talk about the appointment of Richard Herr, a special counsel. And, you know, in general, talking about avoiding the appearance of impropriety, something that John Roberts, as chief justice of the Supreme Court, writes on every single year in his status of the supreme court. Right. And laments. We've talked it. We called him an institutionalist and we've talked about how, you he really, really wants to restore, you know, integrity and honor to the Supreme Court.

0:06:53 Andrew: It's all a very notable, noteworthy thing. And one of the things that you do if you care about the court's perception, I would think, is you would want to have, if you're conducting an investigation into what is almost certainly Samuel goddamn Alito, um, might want to have that be to be as above board as possible, right? That

0:07:14 Thomas: Andrew, I want to stop you right there. We need, as skeptics, we got to be open -minded. It could have been one of the other right-wing crap bags on the Supreme Court. Just because Alito is the only one who had somebody who was affiliated with the right and then maybe thought better of it enough to be a whistleblower about this, just because, because that's Sam Alito's kind of bad luck, doesn't mean, you Thomas isn't doing this all the time, but just nobody's tattling on him. So it could still not be Sam Alrito. I just make that very clear.

0:07:43 Andrew: It Be, uh, but knowing that you are, uh, this after there has been a very public and the reason I'm focusing will become clear in about eight seconds might want to, say, rely on someone who is not the appointee of the president who appointed Samuel Alito, right? Might want Richard Herr is a Republican, right want to get a Democrat to investigate into the source of it, but not if you're John Roberts. If you're John Roberts, you consulted Michael Chertoff, George W. Bush's secretary of homeland security, a from the Ken Starr special prosecutor investigation of Whitewater.

In fact, when Michael Chertoff was U.S. Court of Appeals for the Third Circuit, unanimous with dissent. That one dissent was Hillary Clinton. And Clinton said very specifically that was 88 to 1. So, you know, 11 non-voting, one opposition. And Hillary Clinton said that she had dissented. She voted against Chertoff to, quote, register her protest for the way Chertoff staff mistreated junior White House staffers during the Whitewater investigation. End of quote. That is taken directly from Michael Chertoff's Wikipedia page. And there is footnote nine, which points to Lizzie Ratner's article in The New York Observer. Hillary's nemesis, mean Mike Chertoff, is up for homeland.

0:09:18 Andrew: Land. OK, so this is somebody who is political appointee, hostile to Hillary Clinton and to the Clintons, was on the Whitewater investigation. And, by the way, George W. Bush is the president who appointed Samuel Alito to the bench. So yeah, this then attaches, you statement from Michael Chertoff. He was asked by the Chief Justice to independently review and assess the thoroughness of the investigation into the draft, uh, opinion leak and, uh, I can't find anybody, I, I don't know, there's nothing in my mind, uh, could absolutely help in trying to figure out you have possibly leaked this. Um, if you're asking does it mention Samuel Alito, no, the statement does not. Like, again, before we delve into this, so this is just so that we are clear on the structure of this.

0:10:09 Andrew: This is is an example of a one -and -a -half page statement This is one and one -half -page statement by the court. And it is described as statement of the court concerning the leak investigation. It is not signed by John Roberts, but I imagine that it was authored by John Roberts because that's the person who articulated that he would begin such an investigation. And then after that one and a half pages, it has a 21 page summary of findings from Michael Chertoff. And Michael Chertoff, that begins by saying, I was asked by the chief justice to to independently review and assess the thoroughness of the investigation into the Dobbs draft opinion leak, and to identify any useful investigative measures as well as any actions that would improve the handling of sensitive documents in the future. So now I'm going to go back to how does Roberts characterize this?

0:10:56 Andrew: He says, "We invited Mr. Chertoff to assess the Marshall's investigation. He advised that the Marshall undertook a thorough investigation and, quote, quote, 'At this time, I cannot identify any additional useful investigative measures not already undertaken or underway,' end of quote." So you might then say, OK, maybe this guy's got his thumb on the scale for Alito. But he, he certainly has considered and evaluated the fact that a whistleblower has come forward and publicly explained that Samuel Alito did this only eight years previously. Right. With another one of his draft opinion, which helps explains, hey, how'd you get a copy of this? Oh, look, I got a copy from the guy who wrote it off of his hard drive. Would right be wrong in thinking that, you know, you sweet summer child.

0:11:44 Andrew: The word, the name Alito, is not present in the entirety of this 21 page report or in the court's one and a half page summary. Nothing. There was no indication at all that The supposed outside consultant that the courts martial engaged any way whatsoever with the obvious allegation of this exact same behavior having taken place eight years prior. And it's just There's nothing else you can say. Yeah. And then there's some like, oh, well, you know, like, gosh, that the opinion was intentionally provided to Politico by a court employee, that individual was evidently able to act without being detected by any of the court's IT systems. Right.

0:11:57 Thomas: Jeez. Yeah, it really is infuriating.

0:12:32 Andrew: Ooh, of the Chertoff group that is capable of undertaking sensitive government investigations. But maybe Sam Alito has a laptop. Maybe he's got a personal computer that he sometimes works on stuff from home as exacerbated by the pandemic. Right. Like, yeah, just like, wow, it's a it's a complete mystery, as you point out, you know, Tom Cruise. Right. Like it's how could this get in or out? We have no idea. Like

0:12:32 Thomas: Is it Tom Cruise?

0:13:02 Thomas: Driven Andrew insane. Court, court, you're making him do a bunch of voices and stuff. That should be a sign that you've gone too far. Yeah.

0:13:08 Andrew: You have gone too far. So it's just it

0:13:12 Thomas: It's really, it really is hard to take, like, the guy, the very people who lecture us on the sanctity of the court and the blah, blah, and they just, do, they just don't give a shit. I imagine he just was like, well, Alito said he didn't, so I'm not, obviously not gonna look into. That. Yeah.

0:13:25 Andrew: Does not even say that. Right, that is the minimum level of.

0:13:30 Thomas: That's, I'm saying that's the thinking that has to go into not even. Looking into it.

0:13:33 Andrew: Yeah, I minimally competent, unbiased observer would maybe ask. Right. Look, you could make an argument. And I'm I'm struggling here. Right. Because this is just so egregious. Am struggling to think, you You could say, hey, look, just because there was virtually identical behavior eight years ago, that's the kind of, you know, past behavior that we would, you know, carjacker Willie argument, right?

0:14:02 Thomas: Yeah, it characterizes his, uh, him as a, as leaker a draft.

0:14:05 Andrew: Yeah. Right. And so, you you know, how dare you think that I did the exact same thing again. But like, go through the motions of making the argument, right? Least talk about, you have somebody who came forward as a whistleblower who wrote a letter to the court in July of 2022, and his name is not, You padded this out to 23 pages and you don't mention him by name. You don't discuss the most relevant potential piece of information. Somebody saying like, hey, don't know anything about, you know, your particular document. But if you're wondering, like, does, somebody have a history of sticking their hand in the cookie jar? Here's You know, here's a case in which somebody gave me a handful of cookies.

0:14:06 Thomas: Yeah.

0:14:51 Thomas: Here's

0:14:51 Andrew: Right. Like it's.

0:14:51 Thomas: A cookie, and it's got Alito's disgusting germs all over it. We

0:14:56 Andrew: Again, a of takeaways here. But, you know, just remember, as we continue to move into this sort of brave new world of, you Roberts is not considered a member of the Howler Monkey contingent. And I don't think he should be. Right. Like, there, there are distinctions between John Roberts's judicial philosophy and Samuel Lito's. Remember that in virtually everything, he's happy to empower and provide cover for the Howler Monkey contingent, and, and I, zero proof on this, but I think that what actually happened was that Roberts was actually upset about the leak, and then once it became clear to him, like, oh, yeah, that, that's your boy who did that, uh, you know, it became, well, I'm not that upset.

0:15:40 Thomas: Will not stop until we root out this, oh, months later, I, what, what did I say that, did I, said we're gonna, we're into that, well, we did, we looked, yeah, over, we can't find it, yeah.

0:15:50 Andrew: About was a grave assault on the judicial process, it was one of the worst breaches of trust in the court's history. If yeah.

0:15:58 Thomas: It, it's like Tommy Lee Jones, 20 minutes after that speech in The Fugitive, being like, I I looked 10 feet from the train crash. I remember I said I was going to do every outhouse, henhouse. Turns out there's a lot of outhouses and henhouses. I just said, too hard, I quit.

0:16:07 Andrew: Yeah. Yeah, I Mike Chertoff thinks he cannot think of a single person whom you might want to, you know, interview or investigate or follow up. And so good enough for us. It

0:16:25 Thomas: He did say, okay, I want to ask you this, he did say that's not already being undertaken. Taken, is there some wiggle room here of like, well, there's still a double secret investigation going on currently or something, because the language seemed to imply that stuff could be currently being looked into. Oh,

0:16:41 Andrew: Accept that the Marshall's report is dated today, as of the date that we're recording this, right? Thursday, January 19th, 2023. And so, you know, that has wrapped it up, right. The Marshalls done. And then they delivered that to Mike Chertoff.

0:16:57 Thomas: Well then what was that other quote Yeah.

0:16:58 Andrew: Yeah, no, it says, right, identify any useful investigative measures. I love this because in real time, you have uncovered another bit of perfidiousness by Chief Justice John Roberts, who, again, is the presumed author of the one and a half pages that the court appends to the beginning. Because that not already undertaken or underway language is language added by Roberts to what Chertoff said. Here's what Chertaff said, right? Said, my review assessed that the marshal and her experienced investigators undertook a thorough investigation within their legal authorities. And while there is not sufficient evidence at present for prosecution or other legal action, there were important insights gleaned from that investigation that can be acted upon to avoid future incidents.

0:17:47 Andrew: End of quote. And then in the next paragraph, it says, throughout my review, there's blah, blah, bla, talking about interviewed. Throughout my review. The investigators were transparent, cooperative and available to answer my questions about the process. At this time, I cannot identify any additional useful investigative measures, period, end of quote. So Chertoff says, yeah, right. Investigators finished. Yeah, they did a bang up hell of a job, answered all my questions. Great work. There anything else they could have done? No, I could not think of a single thing that they could do. And then Roberts appends on not already undertaken or underway, which implies that there's more stuff going on that as far as we know, there are not. This is it. This is the end.

0:18:25 Thomas: Well now I'm confused if I misunderstood so this guy was investigating the investigators, he's watching the watchman, but then is there room for those investigators to still be doing anything, or did do we know that that's done

0:18:30 Andrew: Yeah. Yes. No, they've delivered their final report to him. Yes. It says Marshall's report of findings and recommendations. So, the Supreme Court marshals who did the actual investigation. Yes.

0:18:43 Thomas: Huh well, then why, yeah, currently under that is a weird thing for him to have added in there unless

0:18:58 Andrew: It's a deliberately misleading thing to have said. And you picked up on it and I did not when I initially read it. So, it.

0:19:04 Thomas: He's still letting his kid, like, look into it, we still have some investigations going like, like, my kids love this show called "And All About Investigating," and they have their little magnifying glasses. I bought them magnifying classes so they could pretend they're detectives. Maybe they're on the case, you know? And then that's why. So there's still things underway. You never know.

0:19:22 Andrew: I recommend Blue's Clues reruns. Alex loved Blue's Clues. But yeah, be it Mira or Blue's Clues, that be the only kind of investigation that's still going on right now. And that would be way more thorough than anything the marshals or Michael Chertoff did in connection with this.

0:19:26 Thomas: Okay, we get that this Michael Chiklis, this Chertoff guy, isn't, no, Chiklis would have gotten, he would have made squeal. No, I get hack, but are the court -martialers, who are those people? Are they, I don't know if we talked about that at the time, are they just people, police -y people? Like who, why have not done their due diligence in asking a single question to Alito? I

0:19:45 Andrew: Michael Chiklis.

0:19:54 Andrew: Yeah, Two answers to that. Number one, I don't know. No. Number two, the the marshal was specifically tasked by Chief Justice Roberts with investigating the public disclosure of the draft majority opinion. This is a, you know, rather like you remember how the house clerk had to preside over the House of Representatives for the three days until we had a speaker of the House. And that that's just a nonpolitical career person. And, you Know, there were there were like some criticisms left and right. Right. But basically, like, you is somebody whose not, you political part of the process, but is just, you a career appointee kind of doing their job. And so if you would ask, hey, is there a reason why a staffer might not want to point the fingers at a sitting Supreme Court justice?

0:20:58 Andrew: I think of a bunch of those. I know evidence for it, but I could think of a bunch reasons why that might not be the case, right? Know, in other words, you would be looking at, you would, no, I

0:21:04 Thomas: Guess, yeah, can't even ask the question. So this person is just really bad at their job then.

0:21:11 Andrew: There's no way, and this is the entire reason why you would want to have hired someone other than Michael Chertoff, because when you look at the section, right, conduct of the the investigation. It says, in the initial phase, this is the marshal describing what they did. In the initial phrase, investigators sought to gain an understanding of the details of the opinion circulation process, the court's policies and training addressing confidentiality, laws that were potentially violated by any unauthorized disclosure, and the handling of sensitive information. Investigators preserved, collected, and reviewed any forensic information that could be found on the court's IT systems and conducted formal interviews with court personnel. The investigative team also enlisted external technical assistance when necessary to examine specific items of evidence.

0:21:58 Andrew: So let me translate that into human being for you, okay? Is saying is that the marshal's office, in conducting their investigation, looked at, hey, did Tom Cruise descend from the ceiling and hack into our computers? Did a clerk go rogue, either a Supreme Court clerk or somebody who just happens to work in the Supreme Court? Right, there a hack, was there, were breached, was there, right, that's What They looked For right They did, that was not part of the question that they asked, and so If You had handed this over to say the law offices of P. Andrew Torres, we would have told John Roberts, "Hey, hey, nothing against your investigative team assembled by the marshal here. Just like Mike, we think they did a bang up job and the stuff that they were tasked with doing. But they didn't seem to be tasked with doing the thing that you said publicly you wanted them to do, which was find out who leaked this document, because they pursued one avenue of potential leaked information. Right.

Did a low level staffer act their authority? Go rogue. Did, you know, somebody hack into the systems" and now bang up job. The investigators did not find any logs or I.T. artifacts indicating that the draft opinion was downloaded to removable media. But it is impossible to rule out.

0:22:24 Thomas: But the call was coming from inside the house. Wow, that's

0:23:19 Andrew: Yeah, sure. Right. Great. Didn't talk to any of the justices, despite having had a credible whistleblower present an account of the exact same thing eight years previously. They did not so much as follow up with that person or with the justice who was implicated in that story. And that seems irresponsible.

0:23:40 Thomas: Nuts. There's way too much respect for Supreme Court justices. There needs to be less, just as a rule. All right. Well, that sucks.

0:23:42 Andrew: Yeah. Yeah. Yeah. Sure does.

0:23:51 Thomas: Hate that. For our planned show, because That was just based on you seeing this and somehow digesting all that instantly. Have more on Raynal from last week. Uh, the sanctioned guys sanctioned twice in Texas, um, perhaps not sanctioned in Connecticut. What's going on there? Yeah.

0:23:54 Andrew: Yeah, that's right. A of days later, this is slightly different grounds. Remember that on Friday we discussed how F. Andino Reynald, McMullet to some, to his friends, I like to think, was sanctioned twice by the Texas court for his role in orchestrating, collaborating with and providing misleading and false statements to both plaintiff's counsel and the court regarding the sham InfoWars bankruptcy that was orchestrated. In order to throw a monkey wrench into the court's trial schedule, which it succeeded in doing so. And it contained the delightful provision permissible under Texas law that was like, hey, man, if you appeal this, I'm just saying in advance, I'll let you know I'm granting the plaintiffs their additional sanctions for any costs they incur in that appeal, Assuming that you lose.

So that that was delightful. Then the question was F. Andino Reynald sanctions. Right. Remember, we're we're minting our sanctions at FT's. We're long on sanctions as a commodity was also the subject of a pending show cause order in the Connecticut case. Right. Is the Lafferty plaintiffs where Norm Pettis succeeded in, you know, losing Alex Jones a billion and a half dollars. And in that case, the question was, should Raynald be sanctioned in connection with the leak of the Alex Jones hard drive?

0:25:49 Andrew: Right, in particular, should he be sanctioned in Connecticut for that? And remember, that was its own thing, and the issue of you, my assistant accidentally leave the link on, and you know, nobody looked to see what these documents were, and by the way, they're responsive to a bunch of discovery requests that we lied and we told you we didn't have the data. And, you know, all of that. That's independent. In Connecticut, the question was, remember, that those of the appalling and gross things that were contained in the Alex Jones hard drive dump were confidential medical records that were pursued to try and show that the Connecticut plaintiffs were somehow, How unfit as plaintiffs, you know, investigations into their mental history, background, history of treatment, that sort of thing. And because those are medical records, you can't just go around showing those things to anybody. Right. Are personal, confidential medical records, and F. Andino Reynald should not have had them. He was not subject to a joint disclosure, even though there sharing of discovery, both by plaintiffs and by defense counsel between the two cases.

You have to specify what it is that you're sharing, and when you share somebody's medical records you have to tell the person whose medical records they are. And so when, for example, Mark Bankston, the plaintiff's lawyer in Texas, inadvertently received copies of the entire Alex Jones hard drive, in addition to cackling with glee and preparing for the greatest cross-examination in the history of Western civilization,

0:27:35 Andrew: The very first thing he did was call the plaintiffs' lawyers in Connecticut and go, go, hey, there appear to be confidential medical records regarding your clients here, and I'm deleting those right now. And you tell me if you need me to do anything else to preserve your client's confidentiality. And how you handle that, right? When you get something that doesn't belong to you that contains top secret, confidential, highly sensitive medical information, investigation, you the lawyers for that party and you go, oh, my gosh, I have this. How do you want me to dispose of this? What do you Want me to do? Raynal never did that. He never deleted. And in fact, you know, he enabled multiple parties down the line to potentially have access to that. And so that was really the gravamen of the claim against Raynald in Connecticut. I you that court the ultimately declined impose sanctions on Raynald in connection with that particular disclosure. A 46 -page opinion. And if you're thinking, shouldn't really require 46 pages to say, no, you're fine, buddy.

0:28:08 Thomas: Yeah.

0:28:44 Thomas: I-

0:28:45 Andrew: That's that's because it doesn't say that. That's because it, it says at great length the improper behavior that Raynal engaged in, and then it says we want to take a look at mitigating factors. Mitigating factors are, you got no history of of any sanctions against you, you've got no mystery of, you know, sort of any kind of black marks, this is a discovery thing, and you were the 10th lawyer to be engaged by Alex Jones in this case, and it was a super mess, and we get it that like it bounced around like a pinball from A to B to C to D to F, and you know, you were pretty careless with this, but, uh, the end of the day, it's probably attenuated enough that the significant list of good credits, mitigating factors, counts in your favor.

0:29:35 Andrew: So, you Know, I'll that briefly. This is I'm going to say a couple of nice things via the court about F. Andino Reynald. Turning to mitigating factors, the respondent has no prior public disciplinary records. There's an absence of a dishonest or selfish motive. That's true, right? And that distinguishes you from, you know, Norm Pattis, who goes on InfoWars every couple of days, right. There's really not a sense that Reynold is personally benefiting from this, right, like he was hired to come in, do a job. Did He that job. And, you Know, there's no there's sort of of personal motive to that. The court attributes some minimal credit for the respondent's late filing of the emergency motion for protective order, although that effort fell short. The court also assigns some minimal credits for remorse. The Court does so because the respondents remorse is tempered by his belief that plaintiff's counsel, Mark Bankston, was wrong for utilizing the other documents after the 10 day clawback period had ended. In fact, the only blame lies eyes with respondent.

0:30:29 Thomas: Like- That they're- Judging- His remorse, they're like, great, like the Olympics, like he- Did a remorse floor routine and they're not like, that's okay, I guess. But-

0:30:33 Andrew: Yeah, yeah. That's more of a 6 .7. Exactly. Court also acknowledges the respondent's responsiveness to the plaintiff's counsel, coupled with his expressions of embarrassment and indication that he was deeply troubled by the inadvertent disclosure. The court also credits as a mitigating factor good reputation or character based on the respondant's testimony that he had retained former Texas disciplinary counsel to assist him in assessing his discovery obligations in the Texas case, where he came in as the 10th attorney in that case. This court wholeheartedly agrees with the respondent's statement that both the bar and the bench should actively support lawyers reaching out to ethics lawyers to help them zealously advocate for their clients while staying within ethical boundaries. Fair point, right? And the court considered as a mitigating factor respondent full and free disclosure and cooperative attitude towards these proceedings. The respondent appeared in person during the evidentiary hearing, having traveled from Texas voluntarily without being compelled to do so.

0:30:41 Thomas: Yeah. Yeah.

0:31:32 Andrew: So, OK, all right. Yeah, yeah. You know, you got all that. This is how it ends. And again, this is not- I'll just read it to you. Having considered the aforementioned factors, this court is not imposing any sanctions, despite its finding of misconduct on the part of the respondent. This disciplinary matter could easily have had a much different result. The respondent is reaping the benefit here of an impressive number of important mitigating factors that militate in his favor. The court orders, however, that should the respondant make any future pro hoc vice applications in the state of Connecticut, he must disclose this proceedings and attach a copy of this decision. So look, at the end of the day, I- that Connecticut court is probably right here. Randolph never appeared in Connecticut. It's tough to say, you know, if they had imposed sanctions, what sanctions the Connecticut court could have imposed on him, right?

0:32:23 Andrew: Never really under their jurisdiction. He could argue no, you know, contacts with Connecticut whatsoever. A bunch of arguments to the contrary that I'm sure Judge Bell is considered very thoroughly in, you of, deciding, eh, at the end end of the day, this is a close call, I'm not going to sanction you, but I am going to make sure that this follows you around, because you ever do something like this again, uh, should know about it, right? And- It should, you know, once, okay, fine, maybe it was a mistake, uh, uh, don't represent people like Alex Jones in the future, and you won't be in this situation. So I'd like to have seen, you know, the trifecta, uh, you don't have a hat trick against, uh, McMulligan, probably, like, voluntarily represented Alex Jones when he didn't have to, and, uh, he participated in a bunch of stuff that was really, really shady.

At the end of the day, the medical stuff here was, you, hey, he, look carefully at stuff sent to him by some of Alex Jones's even crappier lawyers, and then, then, you know, his paralegal left a link open. And, you, it, it, were, were Thomas Smith here, right, I would probably be arguing for lenience. So, you, I can't, can't, fault the court for not sanctioning Raynald here.

0:32:47 Thomas: Yeah.

0:33:32 Andrew: But, but, you, in asking, in the scheme of things, will it have consequences? I thought, is, as your middle school teacher would say, a part of your permanent record now. So there you go. Yeah.

0:33:42 Thomas: Final, final bullet point, it just says here, Andrew Dirsch is a lying liar who lies. Wow, another update in the Dersh lying and being a terrible lawyer. And what- More could he have done because-

0:33:53 Andrew: Do- And I will just give the link in the show notes, uh, this was reminded of this, uh, a couple of days after we covered the Dersh sanctions, Arizona, in which, in addition to giving as excuses, I'm old, I've had a bunch, bunch of strokes, it's my first day, the gravamen of his argument was, I should be listed as of counsel. And the reason I should be listed as of counsel, and not counsel, is because I was only ever engaged on the very, very narrow issue of evaluating this particular claim about state action as a function of federal constitutional law.

0:34:44 Andrew: That was his main argument. I'm a constitutional lawyer. I was here to opine on the U.S. Constitution. I didn't look at any of the state issues. I don't even know what a state is, right? Surprise you that in the final opinion, right, from the Arizona Court of Appeals, that's the Arizona Intermediate Appellate Court, in Arizona Party and Kelly Ward versus, uh, everybody in existence, right, this is Kelly the Word case, that listed as counsel on page one is Harvard Law School by Alan Dershowitz, pro hoc vice counsel for plaintiffs appellants, Arizona Republican Party and Kelly Ward, and this is, is entirely a state law question. Right. This is the question about early voting.

0:34:43 Thomas: Of-

0:35:31 Andrew: Right? Superior Court found Arizona's mail -in voting laws adequately preserve secrecy in voting, denied plaintiffs motion for preliminary injunction, and entered a final judgment dismissing plaintiffs complaint. Plaint- plaintiffs appealed, and then the appellate court says, because the Superior Court did not err in finding Arizona's mail -in voting laws preserve secrecy in voting, we affirm. And to be clear, that allegation that they made in this case, the Kelly Ward, for which Alan Dershowitz is listed as counsel on page one, not off counsel, you know, not some kind of bizarre, I'm only dealing with the federal constitution, was the Arizona's mail-in voting violates Article 7, Section 1 of the Arizona Constitution, which is not present in- The- Federal constitution.

0:36:13 Thomas: The- Arizona- The- One, the, that the founding fathers did for our whole country, is that the one, I'm bad at history, which, which one is that? Or is that the Arizona state one?

0:36:14 Andrew: Yeah.

0:36:24 Andrew: Yeah, it's the Arizona state- One, and in fact, like, no language like this is in the constitution. It says, quote, "All elections by the people shall be by ballot, comma, or by such other method as may, may be prescribed by law, provided that secrecy in voting shall be preserved," end of quote. It's been litigated a bunch of times in Arizona. It's known as the secrecy clause. There's no secrecy laws in the U.S. Constitution. So Alan Dershowitz, engaged by the same set of plaintiffs in connection with voting issues in Arizona, under which the sole claim is an Arizona state constitutional claim, not a U.K. constitutional claim.

0:36:25 Thomas: Wow. Yeah.

0:37:02 Andrew: So if you were wondering, is Alan Dershowitz a lying sack of crap? Alan DERSHOWITZ is a lying sack of crack.

0:37:07 Thomas: We weren't wondering because we've already done This same segment a hundred times, and this is not a criticism. Each time I'm like, well, Andrew, you've already poked so many holes in Dersh's defense. It's actually a wormhole to the center of the different dimension because you poke so many hole holes in this defense, it's some weird new phase of matter, but there's still more, like there's a somehow always still more. Now my question is, procedurally, was this uh, little bit of a leftover magic from last time, or was this another filing thing, like, how, how were you made aware of of this additional lie, like the 1900th lie, uh,

0:37:09 Andrew: Oh, yeah. Yeah. Because this decision was handed down by the Arizona appellate court a days after, again, in a parallel case, a few day after Alan Dershowitz filed his sanctions reply that we broke down. So I just thought it was worth pointing out again.

0:37:51 Thomas: No.

0:38:00 Thomas: Definitely, I just, I, it's funny to me because from my perspective it's like, geez, it keeps coming up and it, it feels like this is some content drip that you're doing, like, this all, like, this all came out a month ago and you're just like, let's see how much we can make, nope, it's literally, you're reporting on it as it happens and his, his lies just keep unraveling additionally every week.

0:38:09 Andrew: Nope. As it happens. Because because when you and again, don't take lying advice from this podcast either. But like when you engage in ad hoc lies, it's really super easy to those. Right. Right. And so Dershowitz came up with this inane idea of, well, I'm just here for the U.S. constitutional stuff and the court does not care. We've been through in our three previous episodes on this. Right. This isn't going to help you anyway, but it's such a bad lie that it's also, you know, instantly provably false because there his name is challenging Arizona's substantive voting law as violating the Arizona state constitution. And, you know, what a what piece of crap. It's just and and it hurts. It really still does.

0:38:32 Thomas: Yeah, yeah, it Yeah,

0:39:06 Andrew: So, yeah, I

0:39:07 Thomas: It remains me of one of my favorite Mark Twain quotes, which is just, if you tell the truth, you don't have to remember anything. Which I've always, it's just, you don' t have to. This web of lies, that again, he may say in his defense, he's too old to remember all his lies, that may be the next level of defense. Sorry, I can't keep all of them straight, I'm old, I don't know all

0:39:13 Andrew: Love that. Yeah, could be.

0:39:28 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:39:35 Thomas: Right now it's time for GPT3BE, this uh iteration, three I'm two and oh against this row, but I'm just knocking the crap out of this thing. Uh, let's see if I can keep that impossible streak alive. Oh,

0:39:47 Andrew: Thomas, during examination in chief, a plaintiff's lawyer seeks to show the plaintiff witness eight text messages the witness sent to a relation in another state an hour after a hurricane struck the witness's town. May the lawyer do so? A, yes, because the witness is dodging the lawyer's questions. B, yes, because the witness cannot remember what she She texted. C, yes, because it is relevant for cross-examination. Or D, yes, because the witness is considered hostile.

0:40:18 Thomas: I love this because all, none of those are in the facts. It's just, I have to, it's basically come up with the reason why this would make sense, which I, those are always a challenge. I'm Well, very curious to see how GPT does with this, but of course I have to go first. I can't get any help. All right. So this is, yeah, this is as a non -practicing attorney. I'm only ever of counsel. I never really get involved in these things. So I, this is something that I imagine if you're, if you practice law every day, you're like, yeah this all makes sense, but I got to pay attention to these details. So So, this is examination in chief. So, it's not cross-examination. This is the plaintiff's lawyer seeks to show the plaintiffs witness text messages. It doesn't say anything about like admitting them into evidence per se.

0:41:05 Thomas: Now, I know we've talked about before the like refresh your notes or whatever. Like, can you, there's something about that. Oh, man, I'm probably not going to remember like exactly how that went, which sucks. But I know we've talked about, hey, refresh yourself on these notes. And then there's the thing where like, if you do that, then I think the other side gets to look at the notes or something like that. I don't know if that'll, apply here. So basically, the plaintiff's witness is testifying about these messages and then the plaintiffs lawyer. So this is all on the plaintive side. This is not a, you know, the other side or cross-examination. Plaintiff's lawyer to show that witness eight text messages is sent, blah, the lawyer do so? Because the witness is dodging the lawyer's questions. That doesn't sound right at all. Think A is a pretty easy elimination.

0:41:51 Thomas: This is one where I actually feel like ChatGPT might win. We'll see. B, yes, because the Witness cannot remember what she texted. Okay. That seems like an attractive answer, just setting all everything else aside, it seems like like the movie answer. And maybe that means it's right. Maybe that means it's wrong. I don't know. But it's like, oh, do you remember sending these text messages and what'd they say? And then the witness says, I don't remember. I'm sorry. And then the person says, let me refresh your memory. Let's show you the text messages. You you do that. I I know. Hmm. Know that Andrew's talked about doing the thing where you you share the deposition, like, oh, were you lying then, are you lying now, here's what you said in deposition, but this is not quite like that, I don't think. All right, C, yes, because it is relevant for cross-examination. Now, that's that's terrible. It's not C. D, yes, because the witness is considered considered hostile?

0:42:45 Thomas: D seems all wrong, but I'm leaving open the possibility that D is the extreme trick answer. Again D a little too much like A because A is yes, because the witness is dodging the lawyer's questions. Even if I was going to go the trick route, which is, you know, it'd be a pretty tricky answer to be like, yes, yes, because the witness is considered hostile, maybe like if this rule is you can only do this to a hostile witness, which I'm not even sure that's true. Be true, but let's say that's the trick answer. It's weird to think that D would be the answer, not A. because The Witness is dodging the lawyer's questions. I mean, they're very, they're too similar, I guess. And often when they're two similar, I feel like it's neither of them because there's just not enough to distinguish between them. Mean, I think it's just got to be B.

0:43:30 Thomas: Yes, because the witness cannot remember what she texted. I just don't like, I really don't want to be I really like any of the other answers. Let me try to see what my second choice would be. Relevant for cross-examination. I just can't be right. You don't have to set up cross -X for the other side. Is there anything you want me to bring up? Up so that you can cross -examine my witness better? I really don't think that could possibly be it. Unless, am I misunderstanding? A plaintiff's lawyer seeks to show the plaintiff's witness. Yeah, no, that's all on the same side, right? Am I crazy? What am I missing here? Then yes, because of witness. I will say D is probably still my second favorite answer. So, I'm between B and D, but pretty strongly B because I don't like any of the other answers. So with With that said, I think we better see how ChatGPT does on this question.

0:44:17 Thomas: Let's see. All right. Well, I know I said this might be the one where it gets me, but let's see this. As it it was typing, I was reading it. Doesn't seem promising. So, ChatGPT says C, yes, because it's relevant for cross-examination. Their explanation is, during the examination in chief, the plaintiff's lawyer is trying to establish the plaintiff's case by presenting evidence and asking questions to the plaintiffs witness. If the text messages sent by the witness an hour after a hurricane struck their own town are relevant to the case and can help establish the Plaintiff's Case, the lawyer may show them to the witness during examination in chief. The lawyer may also use the text message for cross-examination, which is the questioning of a witness by the opposing lawyer, in order to challenge the credibility or reliability of the witness testimony. So that sounds terrible.

0:45:02 Thomas: This This seems like the worst one yet, but, or am I wrong? Or did it get me? I missed something. So I said B, the chat bot said C. answers are submitted hereby, thusly, uh, uh I don't know. Done. End of thing. Go ahead, Andrew.

0:45:18 Andrew: All right. If you want to play along with Thomas and a chat GPT, you know how to do that. Just share out this episode on social media, include the hashtag TTBE, include your guess, your reasons. Therefore we will pick a winner and shower that winner with never ending fame and fortune, fame and fortune not guaranteed.

0:45:34 Clip: And thank you, Let's go!

0:45:36 Thomas: Now it's time to thank our new patrons at patreon.com/law. Enjoying all the goodies. The ad -free shows, the biggest benefit going these days. If you invested in sanctions and ad -free shows early on, and Bitcoin in like 2007 or something, you're just loaded by now. Those were very good investments. All right. Thank you to Disciplinary Lawyer from a Troubled Theocratic Border Province, charlispeers, Austin Eck, Ridethywubs, A Patreon of the Ahts, Clay, John Coogan, Tamara Rhodes, Eat A Bug, Mark Meadows, weird, okay, Andrew's overburdened pin cushion, maro, well, the pin cushion itself has nothing in it, actually, because all the pins are everywhere else the cushion, pristine, not a single pin in it, Maro Kalogeri, SV Loafers Glory, JimBob Duggar's Liberal Conjoined Twin, Chris Rumble, David Kittle, Patrick Furlong, and Gnack, your turn, Andrew, oh,

0:46:13 Andrew: I love that. That is so funny. Yeah, right. They all get pulled out eventually. Yeah.

0:46:42 Andrew: And a big thank you to Disciplinary Lawyer from a Troubled Theocratic Border Province, Everyone has the right to be stupid, but Abbot and Paxton abuse the privilege, Lewd Intentions, Ed Allard, Greg Eldridge, Jim Wood, PE, Emily Pye, Victor Rothmann, Surfer, Rugby Player, Lawyer...in that order, Chris Kruse, Robert Swift, Emily Heres, John Wickham, Eva Ares-Deterding, cbh01, and Kevin, thank you all so much for supporting the show over at patreon.com/law. Tomorrow,

0:47:17 Thomas: Our show, thanks so much for listening, everybody, we'll, we'll see you all tomorrow for the uh, the regular Monday deep dive. Do we have a name for the, we get the Liz Dye Wednesday, usually. Guess this one's the orphan. We don't have a name for the Sunday one. Anybody If has a pithy name for it let me know. But so far, that's the unnamed one. We will see you tomorrow for Deep Dive Monday.

0:47:25 Andrew: Yeah yeah he he he

0:47:36 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

0:48:10 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/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.