OA681: The New Republican House Rules Are... Yikes.

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 681. I'm Thomas. That's Andrew Torres. How you doing, Andrew?

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

0:01:26 Thomas: Am fantastic. I feel like today's a pretty fun episode with the possible showers in the—mostly sunny, but possible showers in the C-segment, I'm not sure. But other than that, it seems like a pretty fun episode. We've got some J6 stuff. Apparently, long live the J6 committee, even though it's dead, I feel like, oh wait, actually, first question, is it officially dead yet? Did they, did they dead it? Okay.

0:01:47 Andrew: It's officially dead, yeah.

0:01:48 Thomas: Okay. I wasn't sure if they had to, uh, to proactively keep it going or did they do a, you know, a ceremonial execution of the J6 committee?

0:01:54 Andrew: So both, remember, as we're going to talk about in the C-segment, the rules of the House do not, and the composition of committees, do not carry over from one session of Congress to another, because you replace the entire Congress. And also, too, light of that, by Its Own Terms, the January 6th committee dissolved with the end of the 117th Congress. So, yeah, doubly it's dead. It's like when you kill a vampire with both the stake through the heart and by like force feeding it garlic or whatever. Yeah, that's

0:02:00 Thomas: Right. Right. Oh, that's right. Yeah. Yeah, and yet, and Yet, its force is still in effect. It's a it's a force ghost we see the we see Anakin we see uh you know Yoda they're all and and the J6 committee they're all in that old 70s or 80s effect let's change

0:02:24 Andrew: Right. Yeah. And Liz Cheney, I'm just imagining like Liz Chaney hugging the middle of that force ghost. That's

0:02:38 Thomas: And they're like wait but we're also still alive as people so how does this work can I go interact with myself as force ghost me with normal me like no sorry you're you're a different entity now so uh do they have in store for us what is this gift that keeps on giving with the uh the The Force Ghosts J6 Committee.

0:02:40 Andrew: Exactly right. It yeah well first we have to take a slight detour to remember who among the universe of Trump themed numbskulls who Peter K. Navarro is and so Peter K. Navarro was a senior advisor to Donald Trump during all four years of his terms of office, this is I'm quoting directly from judge made his opinion, he served in various capacities, deputy assistant and later assistant to the president, director of trade and manufacturing policy, director of the White House National Trade Council and Defense Production Act policy coordinator during the COVID -19 pandemic. So heck of a job there, Petey.

0:03:30 Thomas: Wow. I want to say two things, Andrew. I want to say, first off, thank you for internalizing my constant question every time we do this, which is, who the hell is this asshole? I don't remember which asshole. Now you're just like, all right, fine. I'll just write that into my notes. Who the hell's this asshole. Second point, how many assholes stayed for the whole four years of the Trump admin? That's an elite cadre of assholes. That's not too many.

0:03:46 Andrew: Yeah. How many assholes we got on board this ship? Yo.

0:03:54 Thomas: Yeah, not many, like almost none.

0:03:57 Andrew: Yeah. So, as somebody who was a Trump loyalist from start to finish, on February 9th, the January 6th Committee served Peter K. Navarro with a subpoena for his records and testimony. And here again, I'm going to quote just from the court history so that his particular thumb in the particular eye of the January 6 Committee's is made clear. The subpoena required defendant to produce documents to the Select Committee on February 23rd, 2022, and to appear for a deposition on March 2nd, 2022. twenty two. Defendant did not produce any records to the Select Committee on or before the return date. Next day, February 24th, the Select Community contacted defendant by email to remind him of the missed deadline for producing records and of his upcoming deposition.

0:04:42 Andrew: Three days later, on February 27th, defendant responded by stating in part, quote, President Trump has invoked executive privilege in this matter. Accordingly, my hands are tied. End of quote. The Committee wrote back the same day, rejecting defendants, quote, stated reason for noncompliance with the subpoena and directing him to appear for his deposition as required. Yeah.

0:04:54 Thomas: Yeah.

0:05:03 Thomas: Feel like his wife a text from another woman. He's like, you know, I would love to tell you, but Donald Trump, he is executive privilege. I can't tell you anything. That's just his answer for everything. How in the world would that be applying forever in perpetuity for the universe for every question anyone could ask him? That seems a little extreme to me.

0:05:11 Andrew: Yeah, really good. Question. And in fact, one that the select committee was not inclined to listen to. So the next day, defendant, this is Navarro, again said he would not appear on the grounds of executive privilege. He wrote, quote, The privilege is not mine to waive and that it would be, quote incumbent on the committee to directly negotiate with President Trump and his attorneys regarding any and all things related to this matter.

0:05:46 Thomas: We're going to have, like, remember the Japanese guy on the island that was still fighting World War II in, like, the '70s or whatever we're gonna have that, but for Donald Trump's privilege claims, it's just gonna be the year's 2050 sorry I still can't answer any questions, privilege no he'll still be alive

0:05:50 Andrew: Yeah. Yes. Yeah, it did. A hundred percent. Yeah yeah. Why don't you talk to the estate of Donald Trump? Yeah. What I mean, what did what just an insane thing? The evil ones live forever.

0:06:09 Thomas: I had to get that in, yeah

0:06:10 Andrew: They do. Yeah. Anyway, later, later the same day, defendant again, Navarro, received a letter from the White House Counsel's Office advising him that President Joseph R. Biden had, quote, determined that an assertion of executive privilege is not in the national interest and therefore not justified with respect to the particular subjects within the purview, purview of the Select Committee.

On March 1st, 2022, the Select Committee, quote, again rejected defendant's stated reason for non -compliance with the sabina and informed him again that he could assert any objections he may have on the record on a question by question basis. Defendant did not appear for his scheduled deposition on March 2nd, 2022. So, yeah, he was just like, yeah, pound sand, uh, claim Donald Trump's executive privilege and, uh, you don't like it, go talk to him, him knowing full well that you Trump was never going to talk to the January 6th committee. On June 2nd, a grand jury returned an indictment against defendant, charging him with two counts of contempt of Congress in violation of 2 U.S.C. Section 192. Count one concerns his refusal to produce documents, and count two relates to his failure to appear for testimony.

And if you're thinking I've got that deja vu, you know, the black cat has walked in front of the screen twice, is it a glitch in the Matrix, these, is are the exact same behavior and these are the exact sam arguments, albeit slightly worse, uh, that were raised by Stephen K. Bannon, uh, connection with his blanket refusal to appear before the January 6th committee.

And, uh, by the way, if you've forgotten that, uh, uh, he was convicted of the jury of having violated both of, of the those statutes, right, that, that statute twice, both of those counts, uh, with respect to just blowing off the

0:07:42 Andrew: Subpoena and was given four months in prison, maximum of six, right, and under the sentencing guidelines, so, uh, pretty hefty, uh, things considered, penalty to be served concurrently, that's what the rules specify, uh, by, uh, Republican Trump appointee Judge Carl J. Nichols on October 21st, 2022. If you're saying, um, isn't Steve Bannon still doing his stupid podcast and, like, yeah, yeah, the sentence, is the sentence has stayed pending. And again, that's common in a, you, is a four month sentence. There's no, I mean, you know, Stephen Bannon is a walking hate crime and a walking crime against democracy. But, you know, he's not going to get worse in the next. Well, who knows? But in any event, yeah, well, I'm saying that it is common for white collar criminal defendants to get their sentence stayed pending appeal, uh, uh, and I'm not surprised, of, of

0:08:05 Thomas: Boy yeah where are you going with this, I don't, I don't think I can follow you because

0:08:36 Andrew: That I I certainly wish I

0:08:36 Thomas: He's not a violent criminal I guess you're saying it's It's not, you know, yeah.

0:08:39 Andrew: Guess yeah, he's a scumbag, but

0:08:42 Thomas: Having to see him as violence, but, you know, I guess not, not according to the law, but

0:08:43 Andrew: Yes So, uh, Bannon moved to dismiss the indictment, uh, and just shocker, uh, Meta, uh, by the way, again, again, mandatory disclaimer, a of mine, former partner, Zuckerman Spader, not. Does I would have, I think, the same admiration for his judicial skills that I that have now. Know, were we not acquaintances? But we were. So I need to mention you that if you want to discount everything I have to say. I think, I think Judge Mado will be on the Court of Appeals for the D.C. Circuit someday and will be a candidate for the Supreme Court.

0:09:18 Thomas: I don't care about your opinion.

0:09:19 Andrew: So, yeah, that's true.

0:09:19 Thomas: Cause you both work together at wizards of the coast where you developed a strong bias toward.

0:09:27 Andrew: So we could, depending on this length of the episode, and, you know, I have talked about this in other fora, but I I'm going to talk a little bit about the assessment of the privilege claims. But I'm going to bracket it by lovely paragraph from Judge Bader, bottom of page three, on the top of page four, with respect to the claim of executive received immunity. Quote, "This court need not wade into these judicially uncharted constitutional waters because defendant's testimonial immunity defense rests on an unsupported factual premise that President Trump invoked executive privilege with regard to the Select Committee subpoena. Defendant has failed to come forward with any evidence to support the claimed assertion of privilege.

And because the claimed exertion of executive privilege is unproven, defendant cannot avoid prosecution for contempt." Why I said that this is kind of like the Bannon case, only worse, um, was actually, uh, confusing in my mind, uh, the reason that Mark Meadow, or the likely reason, we will never know, why Mark Meadows was not referred out for prosecution for his failure to show up and, uh, and testify before the January 6th committee. He did voluntarily produce some documents, right? But we talked about, uh, blew off the subpoena, uh, Dan Scavino did the same thing, uh, because as judge made up points out, both former Chief of Staff Mark Meadows and former deputy chief of stuff

0:10:12 Thomas: Wow.

0:10:57 Andrew: Daniel Scavina received correspondence from President Trump directing them not to respond to the Select Committee subpoenas in nearly identical letters dated October 6, 2021. Trump's counsel Justin Clark instructed Meadows in Scavita, quote, "To the fullest extent permitted by law, to, one, where appropriate, invoke any immunities and privileges you may have from compelled testimony in response to the subpoena, to not produce any documents concerning your official duties in response to the subpoena, and three, not to provide any testimony concerning your your official duties in response to the Supena Both men then presented their letters to the Select Committee. Had the president issued a similar letter to defendant, the record here would look very different.

0:11:38 Andrew: And so, you know, know, know, could I, I go through the assessment? There's a bunch of, well, you know, he he also said it. And, you know, Trump complained about a bunch of other stuff. And judge made us just like, what are, what we even talking about here, right? Like, you cannot say, I had a private conversation with Donald Trump, and if you want to know whether he wants me to testify or not, go talk to him. That's not how any, any of this works, right. You have to give us some evidence.

0:12:03 Thomas: And he also told me he pardoned me for everything and it's all fine. It's all water under the bridge. And he gave me a presidential medal of freedom just

0:12:06 Andrew: Right? I mean, seriously, it's it. Not great. You know, we just get to the, "The record demonstrates no such invocation of executive privilege by President Trump." Then we have finally, "Defendant asked the court to dismiss the indictment under the rule of leniency because he had no notice that the government would require a special assertion of privilege by a former president and or advocate for the novel position that an incumbent president can decide the extent and applicability of a former president's privilege. But that argument misconstrues the rule of leniency that rule is one of statutory interpretation that is evoked only when a court discerns that there is grievous ambiguity or uncertainty in a criminal statute. Defendant identifies no such ambiguity in the text of 2 U.S.C. 192." You know, we have all of the same, like, garbage arguments that everybody associated with Trump has tried to make from the beginning. The January has 6th committee isn't a real committee. It doesn't have enough Republicans on it. Well, it has Liz Cheney, but she doesn't count. And just.

0:12:42 Thomas: Yeah. In court, like they try to argue in court.

0:13:19 Andrew: Oh, yeah. They have argued from the beginning that it does not constitute a valid committee because the original resolution.

0:13:26 Thomas: Oh, wow. I thought that was just a rhetorical public complaint.

0:13:28 Andrew: Yeah. No.

0:13:30 Thomas: I didn't realize there, what would a judge do with that?

0:13:31 Andrew: Yeah, I can you what Judge Maida did with it, which is, quote, defended, concedes that even raising a timely objection. There was no objection. So the long discussion of, hey, man, if you want to object to the composition of a committee, maybe do that when the committee is formed. Not, saying, saying, But look, I asked you about this at oral argument, and you said even had you objected when the committee was formed, such an objection might have been futile. As he admits, quote, the House speaker could appoint all 13 members to the select committee, as was dictated by the passage of Resolution 503. Amend Resolution 503 so as to specify whether the appointment of 13 members is required, and or clarify what role the ranking member and or vice chair is to play in accordance with the House rules.

And that's just a slightly wordy way of saying something we have said and that we're going to talk about in the C segment. The House sets its own rules, and you don't, by and large, get to go to the court to demand that the court adjudicate those rules. They passed a resolution. The resolution very clearly says that the Speaker of the House appoints the members of the committee after, quote, consultation with the ranking minority member.

0:13:36 Thomas: Yeah. His wife is asked with it. Oh no, you weren't going that blue. Sorry.

0:13:52 Thomas: Yeah,

0:14:44 Andrew: She had a consultation. He wanted to put a whole bunch of insurrectionists on the committee. Committee, and Pelosi was like, uh, no, we will not have that, uh, we will have, if you can find us Republicans who are not insurrectionists, uh, and then McCarthy was like, no, if you won't put the insurrectionist on the committee, we're going to take our ball and go home. And then Nancy Pelosi is like, you know what, we're gonna invite Liz Cheney and Adam Kinzinger on anyway. And, you know, that turned out to be an awfully good decision, so.

0:15:09 Thomas: Yeah.

0:15:09 Andrew: Uh, of that makes the committee invalid.

0:15:09 Thomas: It did. Telling me you don't have a constitutional right to deny a subpoena by a committee that's not the way want you it to be, as a not member, that's so ridiculous, I can't even get through the, I, Can'T EVEN GET THROUGH THE SENTENCE mocking it, Andrew, it's so stupid, I'm sorry, yep.

0:15:21 Andrew: Know you. Again, and I just want this to be clear because I Republicans inexplicably now control the House of Representatives. They're going to have a whole bunch of stupid committees doing a whole bunch of stuff. And, you the same way that Hillary Clinton sat for nine billion hours of Benghazi testimony. Right. We are going to face These same kinds of issues. And I to be clear right now, none of these have happened yet. And so, you know, the same rules apply whether you are a Democrat or Republican. If it's a validly constituted committee and committee to investigate Hunter Biden's laptop porn is going to be a validLY constituted committee. Sorry that real human beings are going to have to sit down and look goobers in the eye and talk about, you know, how much porn is on Hunter Biden's laptop. You're going to be able to do that. You can't just say, I am sorry, I have an important figure in this administration, so go pound sand. And, Peter learned that the hard way.

0:16:28 Thomas: Hillary Clinton sat for 4,000 hours of crap on Benghazi and you, know, at least you can get an iconic photo out of it, possibly, so.

0:16:33 Andrew: Yep, Um, Uh, you know, did, there was a motion to dismiss because that, this was all political and you hate me, and, you know, I'm not, I'm even going to go through that because again Judge Made is just kind of like, what and you doing here? Um, then, uh, you, we talked about this on Cleanup, on, so why we don't, don't need to go down the, uh, of point by I point on the motions in Lemonade filed by the government that were all pretty much granted by Judge Maida. But, but it's, and is what is evocative of the Bannon trial. The, you can't raise frivolous arguments at your defense. And this led, this, Steve Bannon very publicly, you, state, because it got covered on the news. I keep ruling this. I don't even know why we're having a trial.

0:17:20 Thomas: Yeah.

0:17:20 Andrew: And it was like, oh, you are so close, man. And that's because 2 U.S.C. 192 only has two elements. Right. Did you get a subpoena and did you willfully defy it? Right. And so when you want to say, well, I want to point out other stuff, right, the court's like, cool. This is why we have motions in lemonade, because none of this other stuff is relevant. So, for example, right. Navarro wanted to argue that, you know, there was It was an invocation of executive privilege that excused his noncompliance with a subpoena. And the court's like, yeah, right. No, that's what I just ruled on here. On Why earth would I allow him to bring in witnesses and maybe make that same argument to the jury? That's a question of law that he's wrong about. And so, no, quote, defendant apparently believes the law applies differently to him because he's a former aide to the president of the United States, he contends.

0:17:23 Thomas: It's

0:18:09 Andrew: A more stringent state of mind standard applies, means that government must be held to a higher burden of proof to convict him as applies to the average person. But, of course, the proof required to satisfy the state of mind element of criminal statute does not change simply because the defendant is a former executive branch official who has resisted a congressional subpoena. Like any other person charged with a violation of 192, defendant cannot assert as a defense that he refused to appear because he had a good faith belief that he was not legally required to do so.

0:18:37 Thomas: Like he's trying to pull a, do you know who I am, and he's, but he's some minor, like, TikTok celebrity, and Judge Made us like, no, I don't know or care who you are, you still have to do law things if we tell you to.

0:18:45 Andrew: Yeah, yeah, There was a motion in Lemonade to prohibit Navarro from arguing his dumb, you know, selective prosecution. They're just out to get me because I'm a Republican. And here, court notes, rather dryly, defendant, that's Navarro, agrees that a claim of selective prosecution is an issue to be determined by the court and not a matter of fact for the jury. So, I'll be granting this motion in limine on the grounds that, quote, all parties agree that the defendant cannot raise an issue of selective persecution before the jury. Yet, yeah, that, you're Peter Navarro, last, last Thursday was, was a bad day, and you should be thinking about that. Going to spend four, for the, six months and prison, and, I wish, wish 2 U.S.C. 192 could be revisited, and we could maybe have some sliding scale of higher penalties for, or, you know, that kind, kind of differentiate between garden variety not appearing and, you know, people like Bannon and Navarro.

0:19:46 Andrew: But, we're you stuck with what we've got. This is the law that that is put into place to enforce a congressional subpoena. And feel like Peter Navarra is real close to being convicted under it. So there you go.

0:19:59 Thomas: It, and, and now, uh, let's get this party started, Andrew. Um, the segment is entitled Fireball. So, is it more Dnd, are we casting things, fine, the crowd the demands more Dnd content, right? So you're gonna go through more emails and talk about more fireballs and stuff like that and wizards, or

0:20:19 Andrew: Uh, actually moving on to a slightly different fireball, uh, that, this fireball is, in fact, uh, what you know, particularly some of our younger listeners may be thinking, the only whiskey of choice when it is three in the morning, um, cinnamon flavored whiskey, whiskey, uh.

0:20:19 Thomas: No, Better whiskey disappear at three in the morning or something? Is like, like the, like the Cinderella pumpkin thing, like, no, it's still there, you can, you can still have whiskey that doesn't suck at 3 a.m., right? Oh,

0:20:42 Andrew: Suppose you could, but, I, uh, all I know is the reverse, which is, I do not know anybody, like, there, there have been a great many times, particularly, we've done q and a's that, you know, started like four in the afternoon, and I'm like, I HAVE A, a nice, you know, glass of Opening Arguments whiskey here, and I'm going to sip it delightfully during our Q &A I do not know anybody that has ever consumed fireball at four in the afternoon. It's, a it's really a 3 a .m. kind of pass around the table kind of thing, after you've already deadened your

0:21:21 Thomas: I see you weren't saying that you should consume at 3 a .m., you're saying 3 a. m. is the only time in which you might, one might consume. Ah, I understand you now.

0:21:21 Andrew: Correct. Yeah, that's Right, so Fireball Whiskey, at risk of again stirring up a hornet's nest, is It is gross, cinnamon flavored, disgusting. It's.

0:21:43 Thomas: Could we get sued by them? Are we allowed to just say their product sucks? No, that's fine. We can say that. Yeah. It's not poisonous or anything. Well, I guess it is, but it's alcohol.

0:21:47 Andrew: Yeah. Yeah, no. Bring it on. I'm not saying, well, it's alcohol. Like I'm saying this as someone who likes cinnamon sticks and likes whiskey. This was not a Reese's Peanut Butter Cup Situation, exactly.

0:21:50 Thomas: Yeah. Not a Reese's situation. Yeah, yeah.

0:22:02 Andrew: Uh, you got your cinnamon in my whiskey, uh, is not a situation that anyone that wants to be a part of, yeah.

0:22:07 Thomas: That's more like a, so You spilled cinnamon in my whiskey. Buy me a new whiskey.

0:22:10 Andrew: That's, that's right, buy me a new whiskey. Is precisely what you should take away I'm so gonna send you a copy of the complaint right now because there's a, there's There's a graphical image that we need to compare because this is, in fact, a cousin of the Texas Pete lawsuit that we have talked about at some length. Right. This, this is a product identification. And so, you know, Texas Pete, not actually made in Texas. Is that the grounds for a consumer protection lawsuit that says there's some sort of unfair marketing here that leads that people to buy a thing? And, you know, I think we did a reasonable job of getting people to think critically about the piece that was going to come out. And I have seen them, you know, about how frivolous this is. And, you know, yeah, like, is there a category in which you could imagine that claim being taken too far? But are there categories where the identification of the product, you know, really does mislead you? One that I think is, is very clear on the side of really archetypal of why

0:22:12 Thomas: How dare you slap you with a glove. Oh, yeah. Okay.

0:23:23 Andrew: These sorts of suits gets made. So I'm showing you the first picture in the lawsuit and linked in the show notes if you want to follow along. This is what the Fireball whiskey logo looks like. Okay? OK, so, again, because this is super cheap, it's in a big plastic jug and it's got a yellow label on it. And the yellow label says Fireball. And then it's got a little demon spitting fire out of its mouth. And then under it, it says cinnamon whiskey. What the main whiskey product looks like. Then I'm going to read paragraph two of the complaint. "Within purchasers noticed what appeared to be its availability in supermarkets and convenience stores in small bottles for 99 cents."

0:24:09 Andrew: Sense. Now, I have to explain this to you because you live in California, where apparently you can buy all kinds of alcohol anywhere you want. Was a microbrewery in the middle of the Whole Foods. I And was like, okay, this is the best place on earth. Of America is not like that. And so there, differing restrictions that are in different places, but usually you cannot buy shots of hard alcohol in your supermarket, right? Or your local 7 -Eleven does that sound weird? Yeah, uh, one writer who saw a huge Fireball display in the front of the cash register at a gas station wondered if that specific store was doing something they're not supposed to be doing by selling cinnamon flavored whiskey and liquor.

Liquor stores reported a decline in sales of Fireball cinnamon whiskey confirmed by their customers who told them that they preferred to purchase it for lower prices elsewhere. So in other words, right, California states, you can still go to a liquor store and buy the little airline bottles. But people were saying to their liquor store owners, right, man, you used to come in here and buy a whole bunch of airline bottle sized Fireball whiskeys. Concerned that you're no longer engaging in that behavior. Okay, so maybe liquor

0:24:38 Thomas: What the hell? How do you all live?

0:25:22 Thomas: It'd

0:25:23 Andrew: Store owners not, yeah, in that direction, right? Hey, liquor store owner's not, now where do you want to go with worrying about human health? And replied, oh, no, don't worry. I'm still buying lots of airline bottles of Fireball.

0:25:23 Thomas: Be the first time anyone was concerned that way.

0:25:35 Thomas: I'm still a degenerate. Don't worry. No, no. I haven't gotten my life together or anything. I can see why you are concerned. No, it's just cheaper at the supermarket now.

0:25:44 Andrew: But it's cheaper at the supermarket, right? Right. And so, yeah, you can imagine, liquor store owners were, were a little bit concerned by that. The reason is that what Fireball is selling here, scroll to page three of the complaint, this is paragraph seven on page three, is a tiny little airline bottle. Looks exactly like the big whiskey bottle, with the difference that instead of it saying Fireball on the top and then cinnamon whiskey underneath the little demon, it says Fireball on the top, and it just says cinnamon underneath it. How is this happening? Because this is not a whiskey product. This is like a Zima or Topo Chico or whatever. This is a malt beverage, low alcohol with cinnamon flavor for those people who want all of the taste of fireball whiskey, but none of the whiskey as

0:26:17 Thomas: Huh.

0:26:36 Thomas: None of the irresponsible partying you're doing that would be the only good excuse to have.

0:26:38 Andrew: Yeah. The only possible reason you

0:26:42 Thomas: Well, now I'm very confused. Why Okay, now isn't that contradictory with stores being like, yeah, no one's buying our thing anymore. They're not selling the thing that no one is buying. They're selling a not of that. So why would that cause... Are people just never drinking it? They're buying it like, okay, I have a fireball whiskey in their minds, but it's actually just cinnamon flavored crap and never noticed. So therefore they're not buying it from the liquor stores.

0:26:42 Andrew: Would want it. Yeah. Expecting.

0:26:58 Andrew: No, no. Know.

0:27:07 Andrew: That's that's right, that is the likelihood of customer confusion, right? That is, they're going in and they're saying, oh, I think I'm buying these little Fireball cinnamon whiskey minis, but instead what I'm buy is a very low alcohol cinnamon flavored shot of something. Is it non no -alcoholic No, no, no, it has, you know, it's like seven percent, uh, in it. But But, you Whiskey is the other 93 percent. I think, think it's 40 percent. But, but, right, like, you are expecting a distilled whiskey product. But, like, I don't know, man, I certainly have not done the taste test comparison. But my guess is that if you did a shot of this bottle sized Fireball cinnamon, that it probably tastes roughly the same level of gross as the regular Fireball whiskey and

0:27:53 Thomas: Yeah, it's true. Again, when you are consuming this kind of thing, you're not... It's not a tasting. You're not at a winery. I'm going to spit this in the bucket. It, this is not quite

0:27:58 Andrew: It has a it has a note of cinnamon to it, yeah, no kidding, right?

0:28:05 Thomas: Yeah. The 2023 vintage of, uh, Fireball whiskey. Not their best, it, bad weather that year, this

0:28:10 Andrew: Oh, we are gonna get so much hate mail from people who like Fireball whisky, but sorry, yeah, that's right. Right. And to read from the complaint, paragraphs five and six, expecting those small bottles labeled Fireball Cinnamon to contain whiskey was an outcome intended by the manufacturer. In fact, what consumers were purchasing at non -liquor stores was not whiskey at all, even though their labels are almost identical. When consumers look closer, they will see that it is called simply Fireball cinnamon. Cinnamon. Notice there's no whiskey after the word cinnamon, which is actually a malt beverage flavored to taste like it's cinnamon whiskey. Unlike

0:28:46 Thomas: This is Almost more like you're selling a counterfeit product, like it's, it's not just reminiscent of the brand, it is literally a copy except for one word gone. That's brazen.

0:29:00 Andrew: Because it's their own product. But I think that's really it's interesting. The complaint.

0:29:04 Thomas: Wait, it's whose product is it?

0:29:06 Andrew: It's this is Fireball's own product, right? So I'm

0:29:08 Thomas: Oh, I'm sorry. This whole time I thought you were saying saying someone was doing a knockoff of the product. You're saying that this is consumers. Wait, what? Then why would the liquor stores give a shit? What?

0:29:16 Andrew: Saying, this is great. I'm glad we get a chance to unpack this. So, here's what's happening. Fireball makes fireball whiskey. Also makes for sale in states that prevent airline bottles from being sold up at the front at grocery stores, convenience stores, but allows low alcohol beverages to be sold in those situations. They make a an entirely different product, right, they call Fireball Cinnamon, and it is Fireball cinnamon malt liquor. It is way, way lower in alcohol, so it can be sold in those stores. And it is, as this complaint alleges, and as I think you have proven in this segment, designed to mislead consumers into thinking that it's a little bottle of fireball whiskey. But it is not.

0:30:09 Thomas: Why I'm confused. I didn't understand the point of the liquor store people, because that made it seem like, oh, yeah, people want to be buying this thing they're buying. Who has standing to say you're not allowed to make another product that's like your product? I don't understand that.

0:30:10 Andrew: OK, that's an awesome question. And the answer is the consumer. Right.

0:30:26 Thomas: The liquorstore people, why do they get to say we're losing out on sales?

0:30:30 Andrew: So no, the reason that the liquor store owner's testimony here is relevant is it's demonstrating the actual consumer confusion. Right. Is, hey, people who used to buy these little bottles of whiskey no longer buy these Little Bottles of Whiskey for me anymore. Why? Because they think they're buying the Little BottLES of Whisky at the 7 -Eleven. But what they're actually buying are little bottles of low alcohol cinnamon flavored malt beverage.

0:31:01 Thomas: Okay, but I could come up with a thousand reasons. Maybe people, customer wanted was finally a lower alcohol version of this thing that, you know, or for that matter, wouldn't we have this suit times a billion with like Coke and Coke Zero and Diet Zero, Coke, Coke Classic Zero? I don't understand. There's 1 ,800 Cokes and Pepsis, and I don'T know what they are. They're all different zeros and crap now. So why isn't that a lawsuit every time?

0:31:10 Andrew: Could be.

0:31:27 Andrew: Let me give you an example of of where that very easily could be a lawsuit. Right. And it would fit under. And we're we're actually we could have read this from the back going forwards. But tell law negligent misrepresentation, fraud, unjust enrichment, as well as violations of various state consumer fraud acts or consumer deceptive business practices acts. So basically, unfair advertising and misrepresentation to consumers to get them to buy a product, thinking that it's one thing when in fact it's something else. And yeah, I with you. There are a billion different like Coke related products right now. Now, if they made a Coke Zero, right, but it was a full sugared Coke, right? And they said, you know, in fine print on the label, like, you know, this is Coke Zero meaning that it contains, you know, zero caffeine, right. You know, 0 grams of arsenic. Let's make it even more ridiculous.

0:32:32 Thomas: Zero percent chance you're not getting diabetes, something like that, okay?

0:32:35 Andrew: Something like that, right And released it right now, even with that little asterisk, and bunch of people bought it expecting it to be a zero -calorie beverage, then you % have claims for common law misrepresentation and statutes that prohibit unfair advertising. Right.

0:32:56 Thomas: Gotcha, so you can't take booze away from the people, you

0:32:59 Andrew: Can that I think is is the lesson here. But yeah. Now you might even think like the testimony of the liquor stores would suggest maybe this isn't a great strategy. Right. Right. Like if what they're doing, like the multiple different kinds of Coke, is actually shifting their consumers away from buying the more expensive whiskey and towards buying the presumably lower margin, lower cost malt beverage. That would be a bad decision unless that they're also bringing in a whole lot of new consumers.

0:33:10 Thomas: Yeah. Yeah.

0:33:30 Thomas: Selling way more of it. Yeah, or something, hmm.

0:33:32 Andrew: Yeah. And this is where I suspect this is nowhere present in this lawsuit. But it is, I think, some of the leverage that the class action lawyers have against the Sazerac Company, Inc., which is the company that makes fireball whiskey, which, boy, is that a hilarious misnomer. Like, if you made a Sazeraq with fireball, I would personally stomp you in the kidney. But anyway, so so is what I suspect kind of the underlying leverage is that know we in general the market for flavored malt low alcohol malt beverages tends to be teenagers and in particular teenage girls. Right. That's just the way the alcohol industry operates. I've talked about this late leading back to one of the very first.

0:33:51 Thomas: All Right. Jordan Peterson Geez.

0:34:21 Andrew: Yeah, yeah, yeah. But no, but that's not me. That is the alcohol industry. And, you know, they euphemistically do focus groups where they say we want to appeal to women age 21 to 25. And there's, you Know, testimony on the record of, oh, that means teenage girls. Else. They bringing in a full bunch of teenager who are buying Fireball, you know, or sneaking it into their pocket?

Again, these are in like giant bins in the front of your 7 -Eleven, And, you know, are they, five you finger discounting it on the way out and then sitting in the parking lot and drinking and thinking that they're, you know, hey, man, we just drank a whole bunch of whiskey and being susceptible to purchasing, you Fireball whiskey down the line, you know who know. Right. There are lots of things.

But that would be the kind of evidence that, you Sazerac Whiskey Company has introduced this line in an attempt to appeal to, you underage customers, That would be the kind of evidence that would be really, really bad to uncover in discovery. So I let me be very, very clear, so that we do not get sued by the Sazerac Whiskey Company, makers the disgusting Fireball Whiskey. Like, you can sue us for that, you'll lose. I am NOT suggesting they have any evidence that this is marketed at underage kids. I'm saying that if they have such evidence, that would give the plaintiffs an awful lot of leverage in this lawsuit. So we'll watching.

What's interesting here in terms of going forward, and this is true about all of these consumer cases about unfair labeling, is that it really depends on: can you get your class certified under Rule 23. three. Right, the damages to any one individual plaintiff are not

0:36:02 Thomas: Yeah.

0:36:02 Andrew: Going to be significant. What makes it useful is getting everybody together.

0:36:04 Thomas: I don't know. Andrew, can you put a price on a buzz? I lost out on a lost out on a good buzz and a good time, I

0:36:10 Andrew: Yeah, my price keeps going up. It's weird. But this is defined as there are two classes, an Illinois class, because the law is slightly different there. And then the consumer fraud multi-state class consists of all persons in the states of North Dakota, Wyoming, Idaho, Alaska, Iowa, Mississippi, Arkansas, Kansas, Arizona, South Carolina, and Utah, who purchased the product during the statutes of limitations of for each cause of action alleged. And so, uh, yeah, so the question is, were you deceived into, uh, buying this particular product because you thought it was a little bottle of whiskey, and, uh, out it was a little bottle of cinnamon, uh, flavored Topo Chico. So there you go.

0:36:56 Thomas: Don't know, man, I feel like you'd, you'd get someone on the stand and be like, drink these two things, don't they both suck? Yes, all right, what are we doing here, judge? This is you.

0:37:05 Andrew: What?

0:37:05 Thomas: Changed out one sucky thing for another sucky think. Drink some real, drink some scotch, drink a nice lay eye or whatever, you know, come on, what are you doing here?

0:37:14 Andrew: I especially love covering these kinds of lawsuits from the position of an absolute whiskey snob, so, uh, hopefully, hopefully, um, I'll bring it in, folks, you like what you like, it's All good, uh, We're We're having this in good fun, but but

0:37:25 Thomas: Yeah. It's fine. I'm teasing, I have no problem, anyone likes whatever, that's a, okay, just teasing, everybody. But I hate fireballs, so I'm making those jokes for Andrew, and I, you know, there you go.

0:37:32 Andrew: You like fireball, really, come on.

0:37:40 Thomas: Uh Finally, in what I think is the less delightful story, that was, was very a fun, uh, romp, these first two segments, people have been asking, uh, for your analysis of the House rules. As you say in this very episode, the House has memento disease. You pass new rules that don't exist until you pass them. So, and last I checked, hollermonkey insurrectionists, Republicans control the House. So, what kind of rules did they pass?

0:37:40 Andrew: Oh There we go, uh.

0:38:07 Andrew: Spoiler alert, they're not great, um, No, shouldn't be surprised by this. And most of these rules that apply to legislation are, you know, laughable. They don't matter, right. So, for example, but in the sense that there is no yeah, there's no legislation that's going to come out of the House that's gonna be signed into law by Joe Biden. That's that's just not going to happen. So then the real question is, in some ways, it gives you insight as to how the of

0:38:09 Thomas: Hmm. Hmm. Well, it's not going to pass anything. Yeah.

0:38:41 Thomas: Mm

0:38:41 Andrew: Folks. And again, this is not just the Marjorie Taylor Greene contingent. Right. This is the entirety of the House of Representatives. This rules package drew one dissenting Republican. Right, so this is is not a situation where God, one nay was from Tony Gonzalez of the 23rd District in Texas, who is a Republican, San Antonio.

0:38:41 Thomas: -hmm. Really? Who was that? Oh, so not the Hall of Famer

0:39:03 Andrew: So, no, that would be be amazing.

0:39:03 Thomas: Tight for the Kansas City Chiefs. I would hate that he was a Republican, but I would like that he was the one dissenting Republican, you know, at least be something. How long till this person is thrown out, cast out of the Republican Party?

0:39:12 Andrew: There Could, it's it's tough to tell. I have looked at the votes that this person has has cast over, were on the always McCarthy bandwagon for, you know, all of the McCarthy as Speaker of the House votes. Then they have voted they against and voted for in connection with every other resolution that has come up. So in other words, this is the only time they have voted nay on the rules, but the rules passed, you know, every other time they voted nay and it failed, right, indicating that the rest of the Republicans also were voting nay, or they voted yay and it passed, indicating the rest the Republicans were voting yes. So on the, you Born Alive Abortion Survivors Protection Act, you know, they voted for that, expressing the sense of Congress condemning the recent attacks on pro-life facilities, groups and churches, because, you know, yeah, that's a thing.

0:40:14 Andrew: They voted Yes, for that. Yeah. So hard to tell. I don't really know a lot about Tony Gonzalez. Important part is, you know, Republican lockstep on voting for these rules. And the rules are- So, for it is now the mainstream position of the Republican Party to move from what is currently known in legislation as PAYGO, or pay as you go, which basically says that in order to have a provision in a bill that increases spending, have to pay for that provision. You cannot introduce a provision that would add to the deficit, kind of do a net add to the deficit where you know it's going to be an increase in an allocation of a line item.

0:40:13 Thomas: Oh, yeah, they're really under fire.

0:41:03 Andrew: Now, you could argue that that position is sort of needlessly stupid, which I would certainly argue that it is, right. There's the idea that you would not want to have spending that is not, you know, earmarked in advance. Like that's displays a stunning ignorance of kind of the way in which modern economies work. But whatever. Overton window shifting us to the right on fiscal issues. That's what. So Pago says, if I add $100 million in new spending, I either have to raise $100 billion in taxes or I have to spending from something else. Right. It used to work. Now works in strident way. Okay, was always possible to just propose legislation and say, we'll pay for this out of the general fund, and you can still vote for that legislation, right?

0:41:52 Thomas: But this is tying it like expressly one-to-one as you're passing the legislation.

0:41:58 Andrew: Let me be very clear, here's how the language, the present language, which is like I said, ridiculously restrictive, says, "It shall not be in order to consider a bill, joint resolution, or amendment thereto, or a conference report thereupon, if the provisions of such measure have the net effect of increasing mandatory spending for a period," blah, blah, blah. Okay, so- So, in other words, it says you can't vote on this unless the bill is written in this particular way. And that is you have to identify how you're offsetting the spending as you vote for it. So that's why it's called. And I think this. Here's what we're going to do. Andrew's wrong. So feel free to write in because this was not in my script and it's off the cuff. I think THIS was a second term Bill Clinton thing.

0:41:58 Thomas: Oh okay, okay. Hmm.

0:42:44 Thomas: Yeah, he balanced the budget famously.

0:42:44 Andrew: Right. And so I think when Democrats were like, look, we're the fiscally responsive party. I think they put into play pay as you go. Right? And they said, look. We're not the old 1960s, 1970s tax and spend Democrats. We're saying, yeah, a new fiscaly responsible Democratic Party. And so we're going to show you how every provision in every bill gets paid for. We're not just going to pass stuff and then try and figure it out when the budget reconciliation comes due. We're goingto tell you and we'regoing to prohibit ourselves from even voting on something without doing so. OK, so however you feel about the wisdom of that, and I think you've gathered how I feel aboutthe wisdom ofthat.

0:43:27 Andrew: Well, the new rules say, hey, if we're adapting the old rules, except for the changes. Right. Because remember, again, memento disease. Then is chained. The very first section to change is change. A is called cut as you go. And yeah, it it says that cannot increase spending period. It prohibits the consideration.

0:43:26 Thomas: Stupid, it Sucks, as It cuts at All again.

0:43:57 Andrew: Yeah. So you can't balance it out by raising taxes, which is how pay as you go works. Right. You can only proceed if the net result of your bill is government doing less than it did before you sponsored your bill. So when I say these people want to stop the government from doing things, the very first item in the very first package of the very First Rules that was the very first substantive thing that they did said essentially, hey, you know that bit where we said we were going to be accountable and describe that we paid for new spending programs with either or a combination of taxes or Cutting other program. Well now all you can do is cut other programs. That's it. Yeah

0:44:40 Thomas: Reminder, Just in case anybody forgot, we already said this, this doesn't matter because they're not going to pass anything, but uh, propose, if any Democrats somehow get the chance to propose legislation, I don't remember how that works with the rules, um, just every time propose, opposed gutting the military budget, like in half, and just be like, yeah, it turns out we have all this bazillions of dollars in military spending.

0:44:41 Andrew: Yeah.

0:44:59 Andrew: Shocker.

0:45:00 Thomas: Yeah, We actually have plenty. We could solve homelessness, basically all the country's problems. We can solve a bunch of the world's problems by just taking all this money that is in military contracts and stuff that we don't need.

0:45:00 Andrew: Yeah.

0:45:11 Andrew: Yep. And and continuing in the stuff that doesn't matter, like that was subsection A, subsection B says that a bill requires three fifths approval of the House in order to vote on anything that would increase taxes. So, you know, yeah, you can't even pick off a couple of Republicans. You would have to. You will not get a bill.

0:45:33 Thomas: You could you already. Isn't that redundant? Couldn't we already not raise taxes at all because or doesn't the other thing already prevent that?

0:45:34 Andrew: No, if it no, if if it just passed through, this is three fifths of the House.

0:45:45 Thomas: I mean, the other thing was you can't do any new spending like at all. So how would you do? So, so you could still under those past for the pay go thing, you could Still just pass a bill that's like, here's more tax, increased taxes.

0:45:57 Andrew: Yeah. If if it were so. Right, is that right. Without this accompanying provision, you could get around the cut go by somehow.

0:46:05 Thomas: Cut go. Yes, sir.

0:46:07 Andrew: Right? Passing a separate piece of legislation that says, hey, we're we're going to add a penny tax on cigarettes at the federal level. Right. Going to increase the marginal tax rate, you know, in the highest bracket by one tenth of one percent. Let's say you did that. And then you would get the CBO to say how much money that raised. And then you could pass the

0:46:22 Thomas: Okay.

0:46:31 Thomas: You still can't. Yeah. I guess in theory, you could just pass A tax increase for like attached to nothing.

0:46:42 Andrew: Tax increase. You know, devote those to repaying bondholders if you wanted to bring down the federal debt.

0:46:46 Thomas: Ah. So they thought of that they're like we also don't want you to be able to do that, barring a three-fifths vote. Okay, the

0:46:49 Andrew: Yeah. Yeah, yeah. And that gets into and you have heard this in liberal media circles and are focusing now. It's, I think, a good thing to focus on the upcoming showdown sometime in the late fall regarding the alleged Fiscal cliff, which, as we have demonstrated for you on Opening Arguments, the reason you didn't hear about those debates while Donald Trump was in office is because it goes away when Republicans are in office. They don't care. This is a made up thing. That's a part of the law that Congress could, instead of just negotiating in bad faith with terrorists who demand that a particular it's literally a number that they insert into the law and they raise every year, but they raise it not enough to get you through the full year to force you to come back and beg for it again. Despite the fact that, again, it to the same extent or more when there are Republican presidents and Republicans control Congress, because Congress just doesn't care. They don't have to abide.

0:47:08 Thomas: Fiscal cliff, right.

0:47:56 Andrew: There is no real effective debt ceiling. It's just a number they stick into the law to make Democrats make this vote and to force them to come. And yep.

0:48:05 Thomas: Well, but having said that, uh, wasn't there the longest government shutdown took place under Trump, or is that a different thing? Well,

0:48:11 Andrew: No, that was. So it does not stop Republicans from still being insane, saying, um, 2019 shutdown, uh, was because, you know, usually you agree when you have a president that's a Republican and a Congress that's Republican, it's usually not hard to agree on a budget, unless, of course, you're Republicans and Your party is is comprised of sort of a loose faction of, you know, and weirdos, uh, and, you know, sort of extreme libertarians that go alongside the people who are like, hey man, we just had this good grift going for a while where we were sort of pro low taxes and people who run casinos would give us billions of dollars, can we go back to that again, and Marjorie Taylor Green is like, nope, um, is hijacked the building and you're going to deal with it. So yeah, that was over failure to agree on an appropriations bill on a budget at all. They

0:48:34 Thomas: That's right, okay.

0:49:08 Thomas: Yeah

0:49:08 Andrew: Were not constrained by the debt ceiling, which again, the debt sealing is about paying the stuff we already owe. It has absolutely not, you know, this and our listeners know this. I don't need to say this. I to tell you that when Democrats controlled the House, they had in their rules, something that seems to make sense to me, something called the Gephardt rule that says we automatically engross and transmit to the Senate a joint resolution changing the public debt limit whenever the House adopts a concurrent resolution on the budget. Right. So in other words, if the debt limit is 19 trillion and the House adopts a concurrent resolution approving of a 20 trillion dollar budget, that that is implied, hey, we wouldn't have voted for a 20 billion dollar budget if we didn't want there to be the ability to have a 20 million dollar budget. Budget, right, yeah. Uh, now says no, um, that's not going to imply that we want to spend the money, we vote to spend the money on, you must have a separate vote on the public debt limit, and the only reason to do that, yeah.

0:50:04 Thomas: Doy. This

0:50:22 Andrew: Is to make right is to makes people come crawling to the lunatic fringe of the dumbest party in our country to have multiple votes that require. And I cannot wait for, you know, Matt Gaetz, who could begin to explain, explain what a debt is, being able to basically hold the entire country hostage come the fall. So great job voting for Republicans, guys. So are going through the a lot of terrible stuff in here that really meant to try and continue with that sort of ethos. Right. So being able to submit things to a two minute vote, as opposed to, you know, a 15 minute vote. Think of a good reason why you would want members of Congress, many of whom have been used to voting by proxy, which is now gone, or voting remotely as they did over COVID.

0:50:21 Thomas: Is so silly is to potentially crash the world economy, yeah. Yeah

0:51:19 Andrew: Know, we saw during the vote for Speaker of the House, like it in two minutes takes, is it be onerous. And I think the only reason that you would would want to do that is because you anticipate there being times when you're trying to ram something through because, oh, look, we showed up on a day in which a whole bunch of Democrats aren't here.

0:51:39 Thomas: But they already can do that what they already have a majority, is it just because maybe they want to be able to stuff that's even more insurrectionist, but you're you're still going to have McCarthy in charge though.

0:51:41 Andrew: Yeah, it that's the only thing I can think of. Yep.

0:51:50 Thomas: This makes no sense to me. I don't understand this.

0:51:50 Andrew: Yep, that's true. Only reason to dothat is because Because you're worried about members of your own party holding out. Right.

0:51:59 Thomas: Like, there's an age correlation with the the, more insane they are. So like, they're like, all right, the old ones will have to go to the bathroom more. So We'll be able to, right. I, I don't know. I don't understand it. I really don't. Cause they already can, a reminder civics lesson. You just needed the barest majority in the house to pass anything. Republicans already control it. So what does this do? Oh, well, but

0:52:21 Andrew: Because, there are a handful of Republicans. You already see them who were starting to dissent from the craziest of the crazy directions. And so, you know, you got to.

0:52:31 Thomas: There's no reason to think that they will not be able to vote in two minutes or is there okay all right all

0:52:36 Andrew: Know. All I know is that was one of the things that was demanded was, hey, let's run this through in two minutes. So I'm I'm to figure out why they would do that.

0:52:44 Thomas: Right yeah Me too, that's what I'm doing too. And

0:52:51 Andrew: Uh, and we've talked about, I'm glad we're gonna get a chance to say this, because we've talking about how there's going to be the select committee on Hunter Biden's porn, they have established in the rules a select subcommittee on the Coronavirus Pandemic, and yeah, it's what you're thinking, section A establishes the Select Committee on the Coronavirus Pandemic to make findings, provide legislative recommendations on the origins of the coronavirus pandemic, the federal government's funding of gain-of-function research, I don't have time to get on that rabbit trail, but that's nonsense, the and relief programs to address the pandemic, the effectiveness of laws and regulations to address the pandemic in preparation for future pandemics, the development of vaccines and treatments and the implementation of vaccine mandates for federal employees and the military, the economic impact of the pandemic, including state and local government responses, the impact of school closures on American children, executive branch decisions and communications related to the pandemic.

The protection of whistleblowers who provided information about improper activities and intergovernment cooperation regarding oversight of the preparedness for and response to the epidemic. And let us be clear about this. And we're going to talk about RFK's crazy anti -vax lawsuit probably next week.

0:53:10 Thomas: Yeah, yeah.

0:53:22 Thomas: There it is I'm

0:54:09 Andrew: That anti -vax morons will now have a committee with the full investigative and subpoena powers of the U.S. Congress to put on evidence from crazy people with advice that kills you.

0:54:23 Thomas: Calling it right now Brett Weinstein will testify before fucking Congress, that's, I'm telling it, I

0:54:28 Andrew: Sure. Anybody will who's on this, because, because the number of people who are on the side of the crazies, it's the same handful of people over, I mean, they're not going to call Andrew Wakefield, so, you know, it is, yeah, it's, is going to be appalling, and we're going to have a government report that talks about how well maybe you shouldn't have vaccines after all, um, terrifying. And

0:54:51 Thomas: I don't know how terrifying it is, I think it's pathetic. And we'll see, I don't know, I wonder, I, how well they'll be able to manage this, because like, I don't think it's that easy to put together a compelling enough presentation on complete lies and fabrications that maintains consistency. I don't know, I could maybe, maybe I'm being the optimist prime, but there's so much in here that it just strikes me as very difficult to make this a thing that has any real reach, you, it's nonsense and it's lies. And it's, you know, you don't have any legitimate scientists or anybody, you know, like I, right. Doesn't that seem like a challenge to make a compelling case? It's one thing, Jan Six committee comes in, they've got footage of the thing, they've got testimony of the victims.

0:55:37 Thomas: They've You know, like they've got all these real things that happened on earth to use, but when you're just coming in, trying to like a lie investigation about lies, I'm not saying it's impossible. It just strikes me as more difficult to tie together a compelling compelling case, you know, and these they don't have their best on the job, you know, like these aren t brain geniuses doing this work.

0:55:58 Andrew: An area in which I think you were correct that we've talked about that really fits in nicely with the overarching discussion of, for example, the Dominion defamation lawsuits and the other private defamation lawsuits that are being brought, right? Like, so, you know, your point was it's kind of hard to cobble together something that's just lies. And one of the things that's been sort of salutary in that direction has been that as you get more specific with the lies, right, as you say things like, well, here we see poll workers, you know, sneaking a hard drive like, oh, look, guess what? Now they're going to sue you. Yeah.

0:56:26 Thomas: Yeah. It falls apart easier. Oh, that too. Yeah, good point. Yeah, yeah. Is my point, like, yeah, you can, there is plenty of little individual things, just but being able to do it in a way that stands up to any sort of scrutiny by the wider public, you bet you they are just going to parrot Fox News segments, probably, now that I think about it, it will just be like another hour of the Tucker Carlson will be, be, it'll just be like, okay, the Tucker Carlson show is now moving to Congress.

So it'll just be, you know, so, but I don't know. I think that with any sort of wide attention on it, it's going to fall apart so quickly. I don'T know. I'm trying to be the optimist prime a little bit, but not trying to be. I actually genuinely think that we'll see. We'll see how it goes. Here's my final question for you, Andrew, as we're running Out of time. Is there anything in these rules? 'Cause that was the original topic here, the Republican rules they passed. Is there anything you're actually worried about, or is it all just crap that's like, well, yeah, they're already Republicans, gonna republican, they already have control of the House, so there's no additional real damage done by the rules they're passing? What do you think?

0:57:15 Andrew: Sure.

0:57:35 Andrew: The real damage that's been done is that elimination of the Gephardt rule. I speak for eight seconds on. There was some sort of discussion of the like vote of no confidence. And I want to describe kind of how that was achieved. And that is it's in the subsection of what kinds of bills can be considered and how do they get priority. Right. So one of those would be a House resolution that declares the office of the speaker vacant. OK, so this is subsection 2Q of the rules kind of hidden at the end. And all it says is in Clause 2A of Rule 9, strike subparagraph three. And so, you know, what's Rule 9 and what's subparagram three? And it turns out that such a resolution, which would then have the priority to be considered by the speaker.

0:57:51 Thomas: Yeah.

0:58:40 Andrew: So in other words, in ordinary course of business, it's the Speaker of the House who gets to determine when stuff gets considered. Considered. Right. And so if we're just up to the Speaker of the House, you'd be like, oh, hey, there's a bill here to the Speaker of the house vacant. Don't.

0:58:46 Thomas: Right. Right. Yeah. I'm not gonna bring this up.

0:58:56 Andrew: Oh, shocker. We're just not going, chance to, to take a look at that one today. You would, that one to the bottom, right? And so what Rule nine says is, here are certain rules that have priority, right? Says this can pop up and you can debate, bring this rule to a vote, in over other staff that the speaker might like to deal with first. Right.

Some paragraph three said you had to have a vote of a majority of the members of the House in order to prioritize bringing up that move to vacate. And so put all of that together, and I think this is kind of of a great way to kind on it, what Speaker McCarthy did was eliminate that guardrail, not just put on a different check, and some people said, well, is it going to be from a member of any party or whatever, that does not say, you member the Republican Party can bring a vote of no confidence against the speaker, what it says is this kind of resolution, a resolution to to declare the office of the House vacant, has priority when it is introduced and has no requirements other than that for its introduction. Now, these votes have been common throughout our history as country, and I want to study the procedure. It is under Robert's Rules of Order. It is a motion to vacate the chair. Going to look at the historical way in which this has moved into practice, because I believe that only two votes have ever been taken in

0:58:56 Thomas: Yeah. Yeah.

1:00:35 Andrew: The House as part of a motion to vacate the chair, um, in 1910, as an attempt to remove, uh, Joe Cannon as Speaker of the House, that failed, uh, then one that was sort of procedurally gerrymandered around was a Mark Meadows effort in 2015 to vacate the speakership of John Boehner, um, then, you know, sort of led to

1:00:57 Thomas: He event that eventually Led to him leaving, right, but It was one Of It was Like Nixon-esque, and that it didn't actually, he wasn't really convicted, he just was forced to leave, okay.

1:00:58 Andrew: Yeah. Resigning, yeah, that, that, that's Exactly. Right. Yeah. That it, that is exactly right, okay.

1:01:10 Thomas: Interesting.

1:01:10 Andrew: So, um, Section the guardrails against there being another Mark Meadows, right, been eliminated. And so in my view, right, again, can't attend, I need to see how it works, um, this, this now becomes a privileged motion. It can rise to the top of the hopper. And any member, I, of the House of Representatives, Democrat or Republican, can bring that up, can say, I want to move to declare the speaker vacant and require an immediate vote. So now what does that mean? Right. That, know, could you start every day of the House with a motion to get rid of this asshole? You could. But I think what would be far more interesting would be, you know, sort of seeing how you could strategically deploy that.

1:01:11 Thomas: Yeah.

1:01:59 Andrew: And that's why I've said I'm to, I'm, I'm going to take a look and do a deep dive on it. But was surprised, right, like the coverage that I saw, the debating over McCarthy as House Speaker suggested that there was going to be this like kind of vote of no confidence thing. But the way in which they accomplish it is not by creating a new cause of action, right, not by creating a new category of bill that you can bring, but by removing the restrictions that said previous restrictions required a majority of the party caucus or conference, right? So in other words, you had to get a majority of Republicans that said, yeah, we're for a motion to vacate, otherwise it got referred to the subcommittee on this, this is never coming back again ever.

1:02:45 Thomas: Yeah.

1:02:46 Andrew: Right. Yeah, so, uh, so that's gone.

1:02:46 Thomas: All Right.

1:02:48 Andrew: We have not seen how that's going to work, but that's substantive, a rules change, and you really hoping that we get a chance to, you Democrats, uh, Hoist Them On their Own pretard, so

1:02:57 Thomas: Utilize That Yeah. Well I Gotta go check on the time space continuum, because, uh, that was apparently eight seconds, so I gotta figure Out Something's Going on, I don't know if I jump in gigawatts, I don't know, we'll See, but, uh, yeah, interesting, we'll keep an eye on that, possible later deep deep dive. And thanks so much for listening, everybody. We'll see you on possibly Liz wins die, assuming we're back to our normally regularly scheduled program.

1:03:00 Andrew: Oh, Yeah. Sorry. Sorry. Gigawatts.

1:03:24 Andrew: Those.

1:03:24 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:03:58 Clip: Www .openargs .com. Be sure to join the Facebook group at facebook .com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.

1:04:36 Andrew: One dissenting Republican. Right, so this is is not a situation where god I knew you were gonna ask that's fine I know

1:04:40 Thomas: Really? Who was that? You can't say something like that and not be ready. Come on. You're so mad. Oh,

1:04:49 Andrew: I know it's okay of