OA684: Why We Haven't Seen the Georgia Grand Jury Report Yet

Transcript

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

0:01:17 Thomas: And welcome to Opening Arguments. This is episode 684. I'm Thomas. This is the Monday show, right? Did I get that right? How's it going, Andrew?

0:01:28 Andrew: It's going well, Thomas. How are you?

0:01:30 Thomas: Well. This very, very important news and you sure you can squeeze this deep dive into to this segment? We'll see.

0:01:38 Andrew: No, we learned last week from Fulton County D.A. Fani Willis that charging decisions are, quote, imminent in connection with the special purpose grand jury convened to investigate, you know, him who might have called Secretary of State Brad Raffensperger in Georgia, pressuring him to overturn the 2020 election results. Am relatively confident that imminent means within about two weeks of last week. So I think we're covering it at a good time. And I'm about kind of breaking down everything that happened at the hearing and, you know, what we can expect to happen next.

0:01:56 Thomas: Who would that be?

0:02:16 Thomas: I saw a long Twitter thread you had on the at open args Twitter account. Everybody should follow, of course. The kind of the grand jury report. And there's some interesting stuff going on there. So I'm buckled in. Let's go. Break it down for us.

0:02:31 Andrew: Right. So a little bit of background first. I mean, you know, we've flagged this for you already. Is another opportunity for me to plug the fact that Liz Dye watches Donald Trump's Truth Social account, so I don't have to. Uh And, and, said that day, you can always tell when something has gotten under Donald Trump's skin because he will go off at an incoherent, yeah, so rant that day. Uh, Trump said in three, uh, truths, uh, one, my phone call to the secretary of state of Georgia, and a second call, which the Marxists, communists, racists, and RINOs don't even want to talk about. Sidebar, that's not a thing. I literally, I have searched even right-wing media for this, and it is just not a thing. We're the this supposed, like, second call which he's going to allege was suppressed by the Washington

0:02:53 Thomas: Yeah. Yeah, it's often a big tell. Wow.

0:03:15 Thomas: What? Isn't a thing. Oh, there's

0:03:28 Andrew: Post. We're going to get there. It's, it's It's just nonsense.

0:03:30 Thomas: Another man, in the grassy knoll, huh? Find

0:03:31 Andrew: Yeah. Perfect calls. Many people, including lawyers for both sides.

0:03:36 Thomas: The one-armed call.

0:03:36 Andrew: Yeah. We're knowingly on the line. I love that one. Yeah. Like, yes, you did bring your lawyers to the call. I was protesting a rigged and stolen election, which evidence proves it was. I won Georgia by a lot, but only needed a small number of votes from that total number. Put a bit of that.

0:03:37 Thomas: Yeah. Oh, is he gonna do the crime again? I

0:03:56 Andrew: It's it's great.

0:03:57 Thomas: Love when he does that Of

0:03:58 Andrew: They cheated in many ways, including stuffing ballots, all caught live on tape. And by the way, every other word of that is in caps, but I'm not, I'm gonna. You know.

0:03:59 Thomas: Course I'll never I someday scientists will be able to tell me what that's about.

0:04:08 Andrew: Okay. Yeah, page two. With many people on the line, on what was a perfect call protesting the rigged Georgia election, which I have a clear right to do and, in fact, an obligation to do since I made the, the call as president, how come not one person said while on the call that I acted inappropriately or made a statement of protest at what I said and then slammed down the phone? Not one. Even with so many opposing people, lawyers, and others on the line, no admonishment at all. We nicely agreed to speak again. I just had to read that because the level of just, if he truly believes that, how come subordinate Republican officials didn't slam down the phone on the president and scream, bad touching, bad touch?

0:04:24 Thomas: Yeah, yeah, how come people in disbelief at the criming they were hearing weren't able to, like, articulate, you know, the section and code and page of what I was violating in real time?

0:05:10 Andrew: When you read that Raffensperger call, you will hear Raffensperger and his lawyers get as close as you can to telling a president of your party, you're crazy and stop threatening me. For example, right, know, here's Trump going, so what are we going to do here, folks? I only need 11,000 votes, that, that's, uh, misspeak, right, but I only need 11,000 votes, fellas, I need 11,000 votes, give me a break, you know, we have that in spades already. You, and then a bunch of crap. You do know that, right? You know that, by the way, Brad, every single ballot that she did through the machines at early, early in the morning, went to Biden. Did you know, know that, Ryan? Ryan, Germany, that's not accurate, Mr. President. Trump, huh, what is accurate? Germany, the numbers that we're showing are accurate. Trump, know about, and then this is very clearly Ruby Freeman here, right? It's redacted out. Early in the morning, Ryan, where the woman took, you know, the whole gang took the stuff from under the table.

0:05:21 Thomas: Yeah.

0:06:08 Andrew: Do you know who those ballots, do you know who they were made out to? Do you know who they were voting for? Germany, not, not specifically. Trump, did you ever check? Germany, well, we did what I described to you earlier. Trump, no, no, no, no, did you ever check the ballots that were scanned by Ruby Freeman, a known political operative, balloteer? Did you check who those votes were for? Germany, we looked into the situation you described. Trump, no, they were 100% for Biden, 100%. There wasn't a Trump vote in the whole group. Why don't you want to find this, Ryan? What's wrong with you? I heard your lawyer is very difficult. And actually, but I'm sure you're, you're a good lawyer. You have a nice last name. But I'm curious, why do you keep fighting this thing? It just doesn't make sense, that there was not as much pushback as a human being could possibly have given in this call by the folks on the call, and that they weren't uncomfortable as hell, is something only a narcissist could tweet out.

0:07:02 Andrew: But there's a third one, or truth out. That was the call to Georgia. It was perfect. Nothing done or said wrong. We agreed to continue our conversation at a later date. The other call that was probably taped by them illegally was so good that when the Washington Post heard it, they did a retraction and apology because they were fed false information, perhaps by the secretary of state's office. And they were angry about it. Exclamation point. The election in Georgia was rigged, on Stolen, S-T-O-L-L-E-N, I assume a tasty bread. We have all the evidence needed. That is the crime. Need Morgan Freeman to come in and be like, that was not the crime, like, it's not, like, I have done my best. I went trolling down right-wing sources for second Raffensperger call, like, there was no Washington Post, which I don't even know how to evaluate what this claim is.

0:07:56 Andrew: It's so off in bizarre right-wing fantasy land. But that's how Tuesday began for Donald Trump, because at the same time, what we had was a hearing in court in Georgia, in state court, that this is important, over the special purpose grand jury's final report. This is a little confusing. And so I did some explainer, like you said, on Twitter, but I thought I would break it down on the show. Know, I thought it would for sort of a good topic to delve into. Purpose grand juries have multiple functions, right? And in this case, they serve a public corruption function. And that's why they issue a final report when they're done.

0:08:41 Andrew: Unlike, you know, a regular grand jury, there is also, you know, a regular grand jury, they either indict or they don't. And they don't, don't have to write up a book report, like the Breakfast Club or something. What do you think you did here with your time? No, you make the charging decision or not. To Georgia case law, the special purpose grand jury cannot issue an indictment. And so the approved practice is that you take the findings of the special propose grand jury and you dump them on a general grand jury and you say, okay, they did all the work, now issue an indictment for me. That's the procedure that Fannie Willis is going to follow here. There's a law, it is Georgia 15-12-80.

0:09:30 Andrew: And that law says, in that seems pretty straightforward, that the special purpose grand jury is, quote, authorized to recommend to the court, the publication of the whole or any part of their general presentments, okay? Then, they do so, the court, quote, shall order the publication as recommended. And, you know, we know what shalls are.

0:09:54 Thomas: Yeah, shall means shall.

0:09:57 Andrew: And in fact, was that something, I, maybe the judge, uh, this is McBurney is the judge, uh, uh, maybe he was an Opening Arguments listener, because he, he specifically, in the, uh, on behalf of, uh, the district attorney's office, you know, said, you know, we don't have a whole lot of shells of the law, and assume they're not a listener. I like

0:10:15 Thomas: All right, man, new rule. Until someone quotes, says like Yodel Mountain or something, let's just go ahead.

0:10:22 Thomas: Assume a judge, an active judge doesn't have a lot of podcast listening time. I don't know, I could be wrong.

0:10:26 Andrew: I'm gonna assume that, I'm going to assume they are a listener until proven otherwise, but you know. You do it your way.

0:10:30 Thomas: Hey, that's, hey, that's Optimus Prime versus Negatron right there. It's summed up.

0:10:34 Andrew: You go. Okay, that seems like a pretty good argument. I should say, by the way, that this hearing was by and between the intervenors who were the various media organizations, right, who want the publication of this report, and the district attorney's office, led by Fannie Willis, who, I'm going to explain their position because it's kind of nuanced, but they oppose the release of the report at this time.

0:11:01 Thomas: Hmm. Interesting. And I, and that's got, I assume that's what has some people fired up in what you were responding to with your, with your thread. The reason kind of, yeah.

0:11:09 Andrew: That's exactly right, trying to figure that out. So, okay, so you have this Georgia law 15-12-80, and then that's backstopped by Georgia rule 21, just to be clear, that says court proceedings, quote, are to be available for public inspection unless public access is limited by law, right? So the default rule, if it's a court thingy, then the public gets to see it, unless there's a law that says the public doesn't get to see him. And this is a court dingy. And by the way, this is also a court thingy that another section of the law seems to say, if the grand jury says we want to make this public, then you must publish it. So, okay, case closed, right? There are actually a couple of of nuanced arguments here that were being made by the district attorney's argument.

0:12:01 Andrew: The first is, and this seems a little bit bizarre, whether the grand jury's final report is in fact a general presentment if they were convened to look into a specific actor or set of actors, right? So, line is nobody knows for sure what a general presentment is. And the reason for that is because this special purpose grand jury statute, as we talked about a couple of episodes ago, is really a vestige of the 18th century, right? Like most states don't have this system any longer. And so we've kind of lost for the ages, and we certainly don't have relevant Georgia case law as to exactly what a general presentment is to know whether that 15-12-80 applies or not. And that seems like a super-duper technical argument, and it is. I and would add parenthetically, I'm going to link in the show show notes, a really great piece by Anna Bauer that she wrote for Lawfare.

0:12:17 Thomas: This

0:13:05 Andrew: So she covers the law beat for Fulton County, and her stuff on this has just been top-notch. She's going to come on the show. I've talked to her. There's more breaking news, and I have a report for her from this, so the things, her takeaway. So we will get to that. Anna is fantastic. You should read her stuff. The kind of argument that Fonny Willis was making, beyond that technical argument of, no, the shall doesn't apply because this isn't really a presentment, that argument was, look, we don't oppose publication of this indefinitely. We just want to wait until after we make our charging decisions, right? And that's when Fonty Willis said, and by the way, charging decisions are imminent, which was, you know, the hundred

0:13:12 Thomas: Ooh, nice. Yeah. That

0:13:52 Andrew: -point font above the fold that got reported, and rightly so, right? Of the argument was handled by A.D.A. Wakeford, and quotation, I think, summarizes their position pretty well. The main point is that today is not the time, now is not the time, but eventually we'll have a better idea of when the the time will be. Why do they oppose in a timing

0:14:14 Thomas: Was going to be my question.

0:14:14 Andrew: Sort of way? Yeah. And this is really instructive, that the DA's office made was, if you publish this report right now, future defendants, and again, that can pretty much only mean Donald Trump, might be able to get future convictions overturned by arguing that unfair prejudice of the publicity denied them their right to a fair trial. And let's unpack that a little bit. Remember, grand juries see one -sided presentations. So no cross-examination of the witnesses. Their testimony was not made known to Donald Trump. And so the report is going to report that evidence in a one - sided way. Way. And the argument, and again, I am not weighing in, I certainly did not hear, it was couched very carefully by the DA's office, was not that would prejudice the jury pool. The point was that might enable somebody to argue, a future defendant to argue that the jury pool had been so irrevocably tainted as to deny them a fair trial.

0:14:14 Thomas: Yeah. Yeah. Hmm. Yeah, okay. Question. Oh, see how that really changes after the charges are brought. That still apply?

0:15:28 Andrew: That's a great question. There, there're really two things here, right? And the first is after the charges have been brought, then you as a defendant have received actual notice right now that, you know, you are not just a potential subject of a criminal investigation. You have been formally charged. You can invoke all the second is with respect the jury you can conduct voir dire on post-indictment publicity, which is is just an ordinary thing, right? Like all the time you have to ask jurors, hey, did you read any coverage of this case before you came in? So in other words, there's a difference between how something comes about, whether that comes about kind of beforehand or afterwards. But there's another aspect too, and that aspect has to do with potential witnesses, right, there will be folks who are mentioned in the grand jury report who are not the subject of the indictment, who nevertheless may be collaborators. Right. May have been,

0:15:53 Thomas: Okay. Mm -hmm. Whether

0:16:26 Andrew: Cleta you Mitchell. I'm sure that the report discusses her role in that process. And again, you to sort of decide with finality, hey, are we indicting?

0:16:35 Thomas: You're charging them.

0:16:37 Andrew: Yeah. Are we indicing Cleta Mitchel? Are we not? And if you let them be known before you have charged the, quote, future defendant, you open up to the potential for witness tampering, right? Like you've now laid out, oh, hey, here are the people who came into the grand jury who testified X, Y, and Z that would be pretty useful in a criminal trial against you. And, you know, there might be somebody that we've noticed has a history of trying to tamper with witnesses. So the, I summarize this on the Twitter thread, and I kind of stand by it, is the argument I thought was very clear from Fani Willis was, hey, if you want Trump behind bars, then maybe, you you know, just hold off for a little bit. Let

0:16:37 Thomas: Yeah gotcha.

0:17:06 Thomas: Gotcha. Yeah.

0:17:28 Thomas: Okay.

0:17:28 Andrew: Us do our jobs because this could get in the way. That, I think, is the best job that you could do on that side, right? Articulate your relief as being narrowly tailored and potentially highly prejudicial. I will tell you, Anna Bauer says that this judge live streams all of his proceedings. He's very pro-disclosure, as she describes him. So, you know, take that, you know, sort of as you will in that out. On the other side were the media interveners. They were represented by a lawyer named Tom Clyde, who I thought was excellent. You know, really knocked it out of the park. His argument kind of, you the plain language of the shall stat, mean shall. I said this back in OA number one, like, even when you're 100% right on the law, or you think you are, you have to answer sort of the, right, but this feels like it might be unfair questions.

0:17:51 Thomas: Right. Yeah.

0:18:23 Andrew: And so he answered those, right? And what he said was, look, things to think about. The first is, yes, this is a potentially, you case, right. You don't often have the special purpose grand jury being impaneled over the former president of the United States. But in a broader sense, this isn't such a strange case at all, right? That every time a court faces the question of to disclose or not to disclose, right, harm on the other side is going to be potential prejudice to the individuals who are involved, right. And so the question is, how does that balance out against the general principle embodied by rule 21, that trials should be public, not secret, right? The public has a right to know.

And that in this case, right, the fact that it's the former president heightens the public's right to no, yeah, that makes that much, much stronger. Then the part that I really, really liked that was just this great moment of, and just so we're all clear here in the room, Clyde said, hey, FYI, literally, I mean, I'm almost quoting him word for word to the judge. He was like, if we lose, would like to appeal this to the Georgia Supreme Court. And so what we would respectfully ask your honor, if rule against us, is that you address the constitutional argument and that you address our Georgia state constitutional argument. And could see that you couldn't actually see the judge from where the camera was set up, but you could almost hear it in his voice of him kind of vigorously nodding along.

0:19:13 Thomas: That makes That Even yeah. Yeah. Yeah.

0:20:05 Andrew: And Judge McBurney says, "Counsel, I can assure you that you will have enough on which to hang your appeal if I go in favor of the district attorney's office." So whatever happens, this case will not be going up to the U.S. Supreme Court. And that, I think, we can all be thankful for. So McBurney declined to rule from the bench, and said a couple of things. He requested that there were a couple of cases. He basically did the thing that judges do when they are sympathetic to one side's public policy arguments but skeptical of their legal arguments, which is what I would take of the Fannie Willis, the DA side.

But, you You know, you ask, OK, well, what are your best cases? And their best case they named was not a case that was cited in the briefs and so was not a case with which he was familiar. And he said, OK. I might ask you for additional briefing on, you know, cases like that or that case. Then And he also stressed, you know, looked at the DA's side of the table and said, look, I will give you notice however I will, word right? For word what he said was, you you will not see an order from this court with the grand jury report attached to it, right?

0:20:23 Thomas: Mm. -hmm, yeah.

0:21:19 Thomas: That's Good.

0:21:19 Andrew: I should have said this at the outset, the judge has seen that report. The district attorney has seen the report. The only people who haven't seen the reporter, everybody else.

0:21:28 Thomas: You And I, yeah.

0:21:29 Andrew: Yeah. So, there you was that of, hey, I'm not going to spring this on you without advance notice. Um, and to me, uh, led me to believe that I think what we're going to get is a very narrowly tailored order that, gives, uh kind of temporary injunctive relief, say staying the publication for 10 days or something like that. Uh, that's exactly right. It could be a little bit longer, but, but something that I I think, kind of holds the district attorney's

0:21:29 Thomas: Give Her time to charge, that's Interesting.

0:22:03 Andrew: Feet to the fire.

0:22:03 Thomas: So It'll be a time-based thing and not a, "Oh, whenever you charge them" based thing, which makes sense.

0:22:09 Andrew: Sense. Yeah. Because, again, you don't want to set the precedent of, you know, just because a prosecutor says, oh, I'll give this to you eventually. Right. You know, remember, I mean, there's a common theme on OA that like, yeah, we we're all pro prosecutor when it's Donald Trump. You want to rip off all the guardrails, you just for this one case, and I that's likely, I asked Anna for her takeaways and what she had to say, so she highlighted four things, she said, I'm not surprised that McBurney delayed a decision, that's a total McBurney thing to do, it seemed like he was sympathetic to the DA's policy arguments regarding an ongoing criminal investigation, but did not buy their legal arguments, she adds parenthetically, and rightly so.

Then she says, I think the DA's office is just buying time here. There were no filings before the hearing and then multiple requests to provide written briefing after the fact. I know it's state court, but it was strange and it struck me as stalling for time to get charging decisions slash indictments going before the report is released. Three, I think the law allows McBurney to find a middle way because it doesn't specify that the report must be published as recommended immediately, right?

0:22:09 Thomas: Yeah. Yep. Yep. Mm.

0:23:20 Andrew: And that was sort of my take, right, that you could, you know, you could stay that, because even with a shall, it does not say, you know, shall within five days, or shall immediately Publish. And right, that's when she added, but McBurney is very into public access. He loves his live streams. I highly doubt he would prevent its release for very long. And then, and this is really, I think, insightful. In terms of the bottom line things we learned, one, the special grand jury's report named names for recommended prosecution. We know that because the DA's main argument against release of the report now is that doing so might give future defendants a basis to argue they've been prejudiced and, you know, bolster venue transfer motions, et cetera. Two, for some reason, the DA's office got out of step with the grand jury. As their legal advisor, she could have made the case that they should ask the judge to publish only after the indictments, or she could've asked them to submit only when she was ready to go with indictments. Apparently that didn't happen and it's awkward for Fani Willis to be in a position

0:23:30 Thomas: -hm, oh Okay. I

0:24:17 Andrew: Of arguing against

0:24:18 Thomas: Didn't think of that. So we could not even be here because the report wouldn't have come out, or

0:24:18 Andrew: Yeah. Because She could have said, "Hey, yeah, off on" issuing this Yeah, exactly. Take a little bit more time because we need a little Bitmore time. It's her grand jury. And, you know, and there is that that sort of, uh, there, so I, I, yeah, I thought both of those, again, that that comes from somebody who's just done a fantastic job of covering this on on the ground. So, once charging decisions were made, I have an idea of who we might have come on the show as a guest. So, okay, now the big punchline, what charging decisions are imminent? And we've talked about this before, but has two statutes that very clearly seem to apply here. Is a solicitation statute, right? Asking somebody to break the law. And the second is a conspiracy statute, with agreeing others to breakthe law. The question is, what's the underlying law?

0:24:26 Thomas: You'd say it's not even ready or something. That's interesting. I

0:25:17 Andrew: And the law is 21-2-562. We've mentioned this before, but

0:25:22 Thomas: You thought this was been a case closed from the beginning, right?

0:25:25 Andrew: Yeah, and I will tell you, I have looked, and as far as I can tell, this does not mean no one has been charged in Georgia with this offense, but there is no case law interpreting it. So you just kind of have to go with the plain language of the statute. And there may be different reasons for that, right? Interfering with, asking people to falsify election returns may not be a thing that happens often. Working at cross -purposes, it may be because the law is so clear, you don't

0:25:52 Thomas: There's not a lot of, yeah.

0:25:53 Andrew: Tend to have a lot of written decisions about it. You will not find a lot of jurisprudence where a law is very, very clear by its base term. So here's what it says, and I'm going to just elide over because there's a long list of stuff, but it says any person who willfully inserts or permitted to be inserted any false figure or other fraudulent entry on or in any record or document authorized or required to be made, used, signed, returned, or preserved for any public purpose in connection with any primary or election shall be guilty of a felony and sentenced to imprisonment of not less than one nor more than 10 years or to pay a fine not to exceed $100,000 or both.

0:26:38 Andrew: And then, right, so that's, so it is a crime to insert any false figure, then what did Trump do? He either or both-ed. 21-2604 is solicitation. A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with the intent that another person engage in conduct constituting a felony under this article, right, inserting a false figure, felony, he or she solicits, requests, request, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct, So right? Saying, and notice that what you must intend is for the act, right? Do not have to be a Georgia lawyer for that intent to transfer of, I know I'm asking you to break this specific law.

0:27:26 Andrew: What you must say is, I know that I intend to ask you to file a false figure in connection with an election. That's criminal solicitation. Similarly, criminal conspiracy is when he or she conspires or agrees with another to commit a violation of this chapter. And the question would be, were folks that were potentially receptive to letting Trump come in and make the case that the numbers be changed. So I don't know. You might have an overt act problem of, you might have an overt act problem of does the call constitute an overt action. So in other words, back up, certainly, certainly Trump conspired with, you know, Mitchell and the folks who were on that call to engage in a conspiracy to have Brad Raffensperger insert a fictitious figure to overturn the election.

0:28:23 Andrew: And I said that, by the way, I included the attorneys. Generally speaking, you can't conspire with your attorneys, but you can when they're not acting as lawyers. And they're helping you commit crimes. So, you certainly are elements chargeable as a conspiracy on the Trump side. The Georgia law is actually pretty clear here in terms of applying, it reiterates the traditional standards for conspiracy. It says, the crime shall be complete when the conspiracy or agreement is effected and an overt act in furtherance thereof has been committed, regardless of whether the violation of the chapter is consummated. Okay. So in other words, when you agree, hey, we're going to overturn the results in Georgia and you do at least one thing, well, let's call up Brad, then that seems to meet the criteria for conspiracy in law.

0:29:21 Andrew: So I would, I think it's a slam dunk, as I said, to charge the former president, Donald Trump, under 21-2604 criminal solicitation. He solicited, requested, commanded, importuned, or otherwise attempted to cause Brad Raffensperger to engage in that conduct of inserting a fictitious figure. As we have talked about, the record, even the the call itself is very, very clear where, you know, Trump says, hey, look, all I want to do is this. I just want to find eleven thousand seven hundred and eighty votes, which is one more than we have because we won the state. I won this election by hundreds of thousands of votes. There's no way we lost Georgia. There is no way we won by hundreds of thousands of votes.

0:30:08 Andrew: I'm just going by small numbers when you add them up. There are many times the 11,000. But I won that state by hundreds, hundreds of thousands of votes. Well, thank you. And by the the way, same thing he just, you know, truthed out at the beginning of the segment of confirming, confirming that you ask the Secretary of State to insert a knowingly false figure into the state's election records. So, yeah, I've said all along, I think that this is a slam dunk. I continue to think that it is. And I will be curious if we get a charge other than the 604 charge. So that's, I, I, up with, I do have one more kind of cherry on top if you want to hear it.

0:30:45 Thomas: No.

0:30:45 Andrew: Okay, well then there we go. And

0:30:48 Thomas: Of course we want to hear it, Andrew. Do, hey.

0:30:51 Andrew: That is, folks have said, "Okay, but you know, especially certain Negatron and Negatron-adjacent folks," I said, I mean, negatronic Jason, yeah, yeah, yeah, but you. You know, Brian Kemp, governor of the state of Georgia, is a Republican. Even if he doesn't like Trump, he's going to be pressured into pardoning him. To tell you, there's one more layer beyond that, because Georgia is one of three states in which the executive, the governor, does not have the pardon power.

0:30:59 Thomas: I haven't said, don't, this. Oh.

0:31:26 Andrew: Their state constitution in 1943. 1943. So instead, the pardon power vests with an executive branch office, the Georgia State Board of Paroles, of Pardons and Paroles. It's a five -member branch. Members are appointed by the governor to staggered, renewable seven -year terms and must be confirmed by the state senate. Now, I will tell you, all board is comprised of Republican appointees. But only two-fifths are Kemp appointees, right, might potentially have been appointed with a Donald Trump in mind. Everybody else is pre-2015, right? So, you know, and these are the kind of Republicans you put on the state board of pardons and paroles, right. Right? That is, you put them on there not to pardon people.

0:31:28 Thomas: Yeah. Yeah.

0:32:16 Andrew: Some of the members in times past, some of the members have used that position prior to running for higher office, like Zell Miller, who went on to become senator and governor. Many, like the current chief, who is Terry Harry Bernard, used to run for public office in the past. And then, you know, they kind of continue their public service on this board. But they're not, you know, I don't think he's ever going to run for office again. So I say all of that to say, I do not know how beholden any one or all five or combination are beholden to Donald Trump. They certainly will take advice from the governor, from Brian Kemp. But I find the fact that there is another layer of bureaucracy there to be encouraging, right?

0:33:05 Andrew: Because if it's a single person's decision, for example, if you have a Trump loyalist governor in a very, very pro-Trump state, of which this is not, right. Kemp is not a Trump loyalist and Georgia is not a very, you know, went to Joe Biden. So you have a situation where you expect that pardon to sort of be automatic. And I think the fact that there's another layer of bureaucracy is at least something on top of it. And by the way, there's a procedure that you have to follow. So we'll get that, you know, Trump in khakis and at least one day in prison if, in fact, he's convicted. And, you know, it would be, I think, corrupt to pardon him, but sort of way down the line.

And the rule of law is securing the conviction first. But I certainly thought it was interesting that if you're thinking about the future, is that mechanism. I've asked Anna, and she's doing a deep dive on the Georgia State Board of Parts and Pearls. She's working on it. She's doing the research for that. So she deferred on that question. But yeah, there's a little bit of, you know, let's not, you know, that's ixnay until the charging decisions are made. So Andrew was wrong. This would be a really big one if the Fulton County DA's office does hand down a decision to indict Donald Trump. And, you know, imminent. So we'll be watching.

0:33:55 Thomas: Very Exciting, uh, and again, we always record these a little early. Doubt it's happened yet, but I don't know, maybe it has. What do you think, it'll be a little bit longer though?

0:34:35 Andrew: Yeah, I think, you know, there's paperwork. And so, you know, I think it'll be within, you know, like I said, probably two to three weeks. I think they will take the, hard behind the scenes, and I think they will take their guidance from what Judge McBurney does in terms of whatever time limit that he sets. And again, I will tell you, as somebody who watched the hearings, you know, as a lawyer and you have to read the tea leaves, and you saw Anna had roughly the same take that I did, which was some sympathy for our position, if you're the DA's office, But there were clearly times where, you know, he didn't seem to be buying the legal arguments. And so, you go back to the office and been confident that, you know, you're going to get the relief that you're seeking. So I suspect that lights a fire under them.

0:34:37 Thomas: All Right.

0:35:27 Thomas: Excited for that, looking forward to it, that'll be a, uh, a very fun OA day. If, uh, last question, if they don't charge Trump, or I, I don't know, anybody, will they say anything? I would imagine they at this point they would would want to, but will we find out and how will we find out?

0:35:45 Andrew: So they will announce their decisions. And again, this report will then be made public, right? So ultimately, and this report, yeah, yeah. So you be able to match that up with decisions undertaken by the DA's office. So there is is no statutory requirement I know of that requires the DA's office to prepare their own report on a declination decision. They can just say, yeah, we investigated, but we decided not to prosecute. That's the core of prosecutorial discretion. But in this case, they know that that grand jury final report is coming out. And so the question is, what are they going to do if

0:35:52 Thomas: Yeah, either way that's happening.

0:36:27 Thomas: Yeah. Yeah,

0:36:28 Andrew: Deviate from its recommendations. And I think just, you know, you can get asked about it. So I suspect they will have reasons for if they deviate.

0:36:36 Thomas: Politically you're going to want to talk about it. All right. Well, hopefully that isn't what happens.

0:36:38 Andrew: Yeah.

0:36:44 Clip: Oh, no associate of this firm has ever failed the bar exam. No kidding.

0:36:50 Thomas: Now it's time for GTBE3. Each week I, as a non-lawyer, attempt to best a robot at bar exam. And so far I think I'm three in a row over the the robot and good question street going but I'm constantly waiting for this book to just drop that other shoe and uh in the form of a real property shoe we'll see but who knows same

0:37:11 Andrew: Well, yeah, Those are coming. I would also add, don't have time for today, but need we to do some follow-ups on uh the larger you know robot taking the bar exam questions that have been uh in the public consciousness lately because uh there's... there's some meat to that story and I can't wait to tell you about it but that's just gonna have to wait for another episode so instead uh Thomas, chatbot, listen up. During cross-examination, a plaintiff's lawyer seeks to show a witness copies of text messages the witness allegedly sent to a relation in another state, an hour after a hurricane struck the witness's town. If the witness asserts that she did not send the texts, which of these actions may the plaintiff's lawyer take?

0:37:49 Thomas: Fact pattern as last time, okay, huh Okay.

0:38:01 Andrew: A, request a sidebar conference with the witness and judge. B, tell the court the truth as he knows it. C, disprove the witness's assertion by other testimony. Or D, raise a timely objection.

0:38:16 Thomas: So it's same fact parent, so it says a plaintiff's lawyer seeks to show a witness copies of text messages the witness allegedly sent, okay, yeah, and now even though though they're on the same side, it seems weird, the witness is asserting she did not send the texts. Which of these actions may the plaintiff's lawyer take? Well, right away with that language, A, request a sidebar conference with a witness and judge. A witness and judge? Do you sidebar with a witnessed? Maybe. Was going to say, since it's May, if requesting a sidebars seems like something you could always do, but maybe that's the trick. With the witness and the judge seems not, it could be iffy. Hmm. So this is basically the Fish Called Wanda scenario.

0:39:01 Thomas: Kind of. It's like you have your witness and you're expecting them to defend, you know, say one thing. And they're like, I never sent those texts or, or maybe it's like, I think the Godfather two, maybe or something when, you know, it's, it could be a mafia witness is like, Nope, didn't send them. And, uh, even though it's your witness, you're now kind of screwed. So what can you do? All right. I already said A, request a sidebar conference of witnesses, judge. Maybe. That's a maybe. B, tell the court the truth as he knows it. I don't think, I mean, that could be one of those really, again, it could be one of those really trying to mess up Thomas answers, but I don't think the lawyer is supposed to testify. I don't think that's how that works. That's the movie version. Actually, I have jury. I have these texts.

0:39:47 Thomas: I don't think you get to do that as a lawyer, but I don't know. C, disprove the witness's assertion by other testimony. That's interesting because it would be hard to imagine that you can't do that. And since the question is which of these actions may the plaintiff's lawyer take, disprove the witness' assertion by other ceremony Yeah. Is there some reason you wouldn't be able to do that? I, um, hmm. I can't think of why you wouldn't be able to do that. I think the question wants you to be like, yeah, but you have these texts, so you should be able to just use them or something. Maybe, uh, finally D raise a timely objection. I don't know what the objection would be. Objection. My witness sucks. I don't think that works. Does that work? I don't think so. Uh, so I think it's not D.

0:40:35 Thomas: I And so once again, I'm between A and C. Well, and so I'm Between A and C. Request a sidebar conference with the witness and the judge feels that feels weird. I don't think I've ever heard of that. I don't really think that makes sense. Furthermore, I mean, they're free to testify that, you know, I mean they can say, no, I didn't send text. I don't know why that would be sidebar are worthy. I don't think it's A. I think, once again, I've kind of, just by process of elimination, I feel like C, disprove the witness's assertion by other testimony. Not only does it seem like it would be weird to say you can't do that, which would be, you required for the, for it to not be the answer, but also, I dunno, that seems like, I guess what you would do of these choices.

0:41:23 Thomas: I don't know what else you do. So I think I have to go between A and C and I'm going to choose C, final answer. Let's find out what the robot thinks because this is yet again a very, very weird one. Let's see. For the first time, the robot has agreed with me. So here we go. The robot says, C, disprove the witness's assertion by the testimony. The explanation is during cross-examination. That's already wrong though. Hmm. Okay. During. Oh it is during cross - examination. What? Is interesting and this is something, geez, dastardly. Something to look out for. I wouldn't have noticed if I wasn't reading the robot's answer, I think. I thought this was just the same fact pattern. You know, I probably would have noticed this if I saw it in an exam and they were right next to each other or something, but my brain just assumed like, oh, this is the same fat pattern as last time, but it's actually slightly different because this is during cross-examination. And as we discussed last week, you're only allowed to do this if it's your witness.

0:41:33 Andrew: That

0:42:21 Thomas: You can't, you know, otherwise you have to introduce stuff into evidence, I'm pretty sure. And I don't think this changes my answer. Which, I don't know, we'd have to go to the judges to see if I'm allowed to change my answer. I don't know, I haven't taken my finger off the answer yet. But I think I'm still going with C, but that's interesting to note. So, it almost got me. But anyway, back to ChatGPT's answer. During cross-examination, a lawyer's goal is to challenge the testimony of the witness and to introduce evidence that contradicts or undermines the witness's credibility. In this case, if the witness asserts that she did not send the text messages, The lawyer may attempt to disprove this assertion by introducing other testimony, such as testimony from the person who received the messages, or by showing that the messages were sent from the witness's phone. This would be done in order to challenge the witness' credibility and to cast doubt on their testimony.

0:43:10 Thomas: Very interesting there. There's a wrinkle in there about credibility, but I think I'll leave that. We'll see in the explanation for the answer. So ChatGPT and I agree on answer C, but are we both wrong? I guess we'll find out on Thursday's episode of Opening Arguments. Play along. Tell them how to play along, Andrew.

0:43:21 Andrew: Yeah. If You want to play along with Thomas and the chat bot, the way to do that is just to share out our episode on social media, include the hashtag T3BE, 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. Yeah.

0:43:42 Clip: And thank you, Let's go!

0:43:44 Thomas: Now it's time to thank our new patrons at patreon.com/law. And as I said, Law'd Awful Movies, a whole lot of depositions up there. You need to get it. It's really fun. It's Ginny Thomas. She is like almost literally talking about having an affair with another man. It's crazy. I'm not even joking. You gotta you gotta get Law'd Awful Movies at patreon.com/law definitely worth it and while we're on the topic, Andrew, we've got got a Q&A coming, and there might be something special for the Q&A. We'll see. I don't like to announce anything before it's solid, but we're working on a little bit of a special thing for this YouTube Q&A. But even regardless, as usual, the questions will be posted on the Patreon. Patrons are the ones who get to ask questions.

I want to ask you, please vote on the questions by hitting that little heart button that you want to hear answered. That really helps. That That's actually is what I go based on, really, with some wiggle room in there for discretion, but mostly not. Let's face it. I'm like the electors. I pretty much just go with the numbers, unless somebody tries to overturn an election.

0:44:03 Andrew: That

0:44:49 Thomas: Anyway, so do that. That's on patreon.com/law as well. And that Q&A will be Saturday, the 4th of February at 5 p.m. Pacific, 8 Eastern. That's going to be a lot of fun. Again, Saturday the 4th. That's on YouTube. Everybody can come join. Of course, everybody's invited. Interact with us, chat with us. But only patrons get to ask the questions and vote on the questions. So check that out. And I will thank our new patrons who are enjoying not only that Law'd Awful, very weird affairs with Mark Meadows, but also that Q&A. So, and the Q&A question. So thank you. Nick Winlund, Aiden El Chucho, Came for the legal advice and all I got was this dumb patron name, Dorian Bullerwell, Ben Roberts, Dean, Ellie, Andrew Myrick, craig smith, and Walt D. Your turn.

0:45:40 Andrew: And A big thank you to Betta, Dean, Kevin R Kelleher, DJ Siewert, Alison Adkins, Not that George Dubya, well that's good, Ashleigh Carter, Thomas Hudson, and Amy Hernandez. Thank you so much for for supporting the show.

0:45:51 Thomas: Thank you, new patrons. We love you. That's our show. So much to look forward to. Only are we looking forward to, oh, we didn't even tease, a Poplaw return. People have been gunning for a Morgan Stringer Ace Associate Poplaw return. That's coming imminently. And not only that, the Q &A, all the good stuff. So stay tuned. We'll see you next time.

0:46:06 Andrew: Until then.

0:46:20 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.

0:46:53 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com/groups/YodelMountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.