The Trump Trial Is On, and Lordy There Are Transcripts!

Transcript

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

0:00:57 Thomas: And welcome to Opening Arguments. This is episode 1026. Don't touch that dial. This is normally you'd be listening to Plant World, but instead it is a numbered episode. It is episode 1,026 and we'll tell you all about why. First off, I'm Thomas Smith. That over there is real-life attorney Matt Cameron. How are you doing?

0:01:19 Matt: Thomas, I've never been more excited to read a transcript, I gotta tell you. I'm in a good mood.

0:01:23 Thomas: Yeah, we so this whole Trump trial thing, let's let you all in on a few things. First off, if you didn't see, there was like a big announcement that they were going to make the trial transcripts available, which is amazing because they're not filming this thing, which, Matt, how do you feel about that? Actually, first question, before the commercial break even, how Do you feel about that,

0:01:43 Matt: I mean, okay. I think there should absolutely be cameras in the Supreme Court, but I am a little torn about this when jurors could get on camera. If there's a way to protect the jurors, I guess I would prefer to have this on camera, I'd like to see all these things. But honestly, I've never seen transcript release next day, every day during a trial. This is new. So this is an interesting new medium that we're working with.

0:02:01 Thomas: And what's great about it is because there's no video, I were all going to be hostage to like, the you major media outlets that can have someone camp out. It's, I the Avengers end game and like be in the line all night and then get a spot. And then also they like swap out. It's just dumb. I Just, that's all dumb. And even by the way, even if they only give us audio, that would have been fine. Like they They could have just do audio recording, right? Wouldn't that be something? But anyway, well, it's not better for me, but that's okay. And it would be, it is for podcasting.

It is way nicer to play clips. But the fact that they are going to release this is awesome because we don't, now it is all of a sudden democratized, you and pop podcasts like us are going be able to cover it in the same way that only previously, only the major outlets were going to have access. Access. And we don't have to rely on their characterization of everything. So that's, I love it. But they said it's going to be available the next business day, by the end of the next business day. Now, maybe they'll get a little faster as they go. But this one, I think, was even after that, that they released

0:02:21 Matt: Is even better. I mean, I can actually study it now. It's great.

0:02:38 Matt: Yeah. Yeah, it dropped sometime around 5:10 or 5:15, I think. So, you know, I could work with that. Yeah. And the wonderful thing about the transcripts, too, just so people understand, it's not just what happened in the court that the media is saying. We actually get to see things the media isn't seeing, it isn't reporting on in these transcripts. We get to See Sidebars. We get to even just in this first transcript, we get to go into the robing room with the judge all this stuff has to be on the record. So yeah, we're getting even potentially more ability to analyze this because we're not getting distracted watching the president's face or you know, smelling him, which sounds awful.

0:03:03 Thomas: It. Okay, that's not, never mind. Oh, holy shit. Really? Wow. Yeah, we'll have to see. I haven't read through it all. We'll see if that's reflected in the transcript. If everything has to be on the record, then it sounds like. Yeah. And so here's what we're thinking. Trump trial is obviously something we want and must cover. And it's huge. It's massive. We're excited to cover it.

But given we were kind of looking at the lay of the schedule and how it goes, and it suck if that was every Friday episode, we're trying to to figure out what to do. And so then I had the idea that, um, why don't we peel we pair back the T3B slightly, which, to one question and we could change the middle of the week episode instead of just being T3BE, it could be Trump.

And then we we could, you know, do one question at the end, sort of like we used to do back in the day. And that way we get to cover this Trump trial, get to do it in real time, and it will still leave us room to be able to talk about other stuff on the other episodes. And it won't feel like all we get do is Trump trial. So I think this is going to be like a win, win, win, win, win.

0:04:29 Matt: I'm excited. I really am. And it gives us the same opportunity. And I was proud of what we did with the Fonny Willis hearing. So let's just go that deep on something by coming back to it every week. I am all about it.

0:04:39 Thomas: New intro for episode 1026, but this was a split-second, spur-of-the-moment decision to change up the episode, so today was expected to be just T3BE, and so I'm playing that intro. I'll get that new intro for you on Friday. The only other thing I'm like not a hundred percent decided on, I think I'm decided on, is because of this lag in the transcripts, it would make a whole lot more sense to record Wednesday night rather than Tuesday night. Then we'll have the first two days of the week. Weirdly, the court is off on Wednesdays. So that would give us the ability to be pretty timely, and I think it's possible we'll do that and switch to, instead of Monday, Wednesday, Friday, Monday, Thursday, Friday, which is a little odd, but to record a Trump trial episode and only have Monday's transcript. Like that just feels like not great.

0:05:22 Matt: Works for me.

0:05:31 Thomas: So that's probably what we're going to do. Now for this first week we're We're hitting the normal schedule for multiple reasons, but going to talk about some Trump trial stuff today. We're going answer last week's bar questions, and then we're only going to pose one bar question this week, but you've prepared a deep dive on this whole Trump trial, the entire thing, and that will be Friday's episode to really give us the in -depth look to this entire trial, so that'll be Friday. So that's our plan. I'm excited for this change. I think it's going to be the right way to do things to, balancing all the considerations and being able to put out the best OA.

0:05:29 Matt: Yeah. Yeah, for sure. I am very excited.

0:06:05 Thomas: Right. Well, after this break, which you don't have to hear if you go to patreon.com/law, we will start talking about this trial. Right now we've got opening statements. Now, outlets call it opening arguments and others call it reopening statements. And there's some pedantry going on. So right off the bat, is it arguments or is it statements?

0:06:23 Matt: It is statements. You can't make arguments in your opening statements. So they do have to be statements. And there has been a lot of pedantry, like you said, a lot lot of people correcting each other about that. Think that opening arguments is a much better name for a podcast, but,

0:06:34 Thomas: It would be weird to have it be like opening statements because then it wouldn't sound. But what is technically speaking, might sound like a dumb question, what is an argument that you're not like? What does that rule look like? Like, what things are you not allowed to say and what things are you allowed to saying in your opening statements?

0:06:36 Matt: Yeah, nobody wants to listen to that.

0:06:51 Matt: Well, we're going to break these down a little bit, but really what you're allowed to do is tell the people what you are going to tell them and what the evidence is going to show. And you can't, cannot reach conclusions. You cannot state things for sure that have not been proven by the evidence yet. You just have to say, we expect the evidence is going to show this. This is our theory of the case, basically. This is the story of the cause. It's a great opportunity to present it and to develop narratives and themes that you're going to develop throughout the trial. I think both parties did it pretty well in these statements that we can look at. There are a couple of preliminary things to talk about first. We do that, I did want to remember the true victim in this case, the person who has to suffer the most. And I have a clip there for you.

0:07:25 Thomas: Whoever's sitting right next to Trump.

0:07:27 Matt: That's the second. Yeah.

0:07:29 Thomas: Oh, OK, OK.

0:07:30 Clip: Donald Trump, been on the move his whole life. Golf, rallies, movement, action, sunlight, fresh air, freedom. This isn't lawfare, it's torture. They're making a 77 -year -old man sit inside a dingy room for eight hours straight, four days a week. And if he moves or talks, jail. Donald

0:07:54 Thomas: I'm so glad I did. I almost watched it beforehand. I was like, I'm going to save the surprise. I'm still glad I didn't watch that beforehand because that is absolutely phenomenal. Hard hitting commentary there from Waters.

0:07:54 Matt: It is so So good. Jesse Waters. And I mean, just the idea that an old man sitting through his court, through his trial, is like Guantanamo, I guess. I thought to make that argument before.

0:08:14 Thomas: The cognitive dissonance that they have for their god who's on trial versus any other human being in the country.

0:08:21 Matt: I love the way it makes it sound like he'd rather be jogging or something, right? He's very active, gets out there. He never sits indoors.

0:08:28 Thomas: Yeah, famously, during his presidency, all he did was sit there and watch TV. That's like all he did, like, yeah, I mean, he plays golf, I'll give him that, he does do that, but a weird thing to say.

0:08:39 Matt: All right, let's go to the transcripts, and quickly, like I said, I'm just excited by the novelty of the transcripts. I just wanted to point out a few things, you know, as we're going through these, and of course you can't get some of the nuance, you're not going to get the facial expressions, the media's reporting on you're going to sort of, when things, when jokes land and received, you know, so apparently there are some things people laughed at today, but we don't know.

0:08:56 Thomas: Oh, wow. Don't even say like laughter or anything like that.

0:08:58 Matt: There's enough They Will, yeah. I think that's actually a good A good indicator Of, yeah.

0:09:00 Thomas: Oh. Ooh, that's a very makes that judgment call? Because I would be working the refs if it were me. I'd Be like, hey, did you put ha ha ha out there? Did you put? Oh, come on. That was a lot of people laughed at that. That was at least 30% of the courtroom. Well,

0:09:02 Matt: Yeah. Mean Brutal if you're getting a transcription of your stand-up set but there's no laughter.

0:09:20 Thomas: I'm assuming if I were arguing in any case, it would see it as my stand -up set. It would Be one In the same, yeah.

0:09:24 Matt: Oh, sure. Well, I think that Todd Blanche might have a little bit too, and we'll get there. Yeah, we start off with a juror coming into the robing room. And that's why I was kind of excited to see that we are following the court. The following proceedings were held in Judge Merchan's robing room, which, you know, just chambers, I guess. I've never been in judges. Well actually, I did go into sort of a coat closet once with a judge. That's another story. It's not as bad as it sounds. But you know chambers or whatever, wherever the judge is. So

0:09:27 Thomas: Don't It's where they live, they have a little house, right? And she get, like, like, ah, see me in my chambers, that's a movie thing that always Happens, does that not, that happen to You a lot?

0:09:53 Matt: Yeah. No, it still happens.

0:09:55 Thomas: I thought you said you'd never been in a judge's chambers.

0:09:57 Matt: No, I've never been in like a robing room. I don't know.

0:09:59 Thomas: Oh, we've got a separate room. Oh, okay. We've got a robing room. Does he have a disrobing room for the end of the day? Yeah.

0:09:59 Matt: Yeah. Yeah. That's for the very special litigants. Yeah. But, you know, typically it's going to be the judge's office. Now it's a little different in Massachusetts because we have stricter standards about things having to be recorded. Used to be you could get a lot done off the record, you knows, in those back rooms. But, you know, a little different now, different times. Yeah, no, the same in New York, obviously, they have to record these things. So there's just a quick conversation with the juror who's concerned. The court talks through her concerns and, you Know, just taking her seriously, but it's making the point that, jury's been picked, and people aren't gonna be talking about the jury anymore. They're talking about Trump. The jury says, I feel better today. I'm feeling grounded. You know I just kind of wanted to talk to you and now we're doing fine. Yeah, just a nice little off the record conversation.

0:10:38 Thomas: That is really weird. Yeah.

0:10:40 Matt: It is strange to be able to read that and not have that be reported. Again, it's not necessarily news. I just think it's interesting as somebody who does trials to kind of get behind the scenes here, the way these transcripts are going to let us do. The first thing, just to address very quickly, is the Sandoval arguments. And we talked about that last time about the hearing or the motion that had to be filed on a brief hearing that was held on Friday about what can can be raise if Trump testify? Now, there's a very strong debate to be had here that he will not be testifying. He generally has not been testifying, makes a big thing about he's going to testify and then doesn't in every one of his proceedings so far.

0:10:40 Thomas: Boy, but what if it comes down to, they're— and he's like, it's the only thing I can do to stay awake and stop farting. Otherwise, I'm falling asleep. I meant to say this so long ago, but obviously Trump would fall asleep, that was that to me was the most obvious thing in the world. This guy's brain from day one, his pleasure centers of his brain have just been blown out of proportion, being a rich a -hole who everybody has cared about and thought was interesting. The world has always revolved around him. He cannot ever be in a room where attention is not on him and he's not the focus. And like, he's such a privileged rich person that he's been able to, like, imagine being able to pull that off.

Like, spend most of your life always being the center of everything in every room and every conversation, every everything you do. There would be times during the presidency where it would be like some solemn ceremony, and he would have to like pull focus because he can't just sit there. But now he canít. He literally is not allowed, allowed to just be all about him and make the focus on him all the time. I mean, it's on his crimes, obviously, but like him personally as a, like directly as him, and his brain just shuts down. His brain's

0:11:15 Matt: True. Oh, yeah. Yes.

0:12:19 Thomas: Like, there's nothing for me here. Like there's no way he could handle it.

0:12:23 Matt: Shade because we both know what this is like, but he's got pretty extreme ADHD. I think it's pretty obvious. But it's untreated. It's untrated.

0:12:27 Thomas: Yeah. Yeah. That's fair. I do think it's a little different because like, I want to sound defensive, Matt, but and I could pay attention to things if they were a certain way. It doesn't have to be about us. Like if it was an interesting presentation about something or, you know, slightly interactive, I think he just literally cannot pay attention if it's not directly like he's the magic guy that the spotlight's on. Like I think you just can't do it.

0:12:33 Matt: Sure. Sure, that's right.

0:12:50 Matt: No, you're right. And even when he was alone by himself while he was president, he got to tweet, right? And he doesn't get to do that. He can't go online. And he's got, was it Natalie Harp? Do you know about Natalie Harp?

0:12:54 Thomas: Yeah. Yeah. No, what's this?

0:13:01 Matt: Harp is an attorney and she was an OANN presenter. And you can pretty much already imagine what she looks like. And she follows him around and with a wireless printer and prints out nice stories about him. So he's got that.

0:13:07 Thomas: Yep. Yeah. Oh, oh, that, that is the best. I had forgotten. That is so funny. That is the most funny.

0:13:19 Matt: That's an arrested development thing.

0:13:21 Thomas: A wireless printer.

0:13:21 Matt: Like that just can't be real.

0:13:22 Thomas: Yeah, that's that's not possible. Yeah.

0:13:23 Matt: Yeah, I know. So good. So, you know, just that constant stream of good stuff. And he had to sit there during jury selection and hear bad tweets about him read out for the first time ever because he's been protected by all this stuff. He doesn't know what people are saying about him. So let's talk about the Sandoval. Court reads the Sandoval ruling from the bench. There's no written order here. And that's why this transcript is so great, because you can see exactly what he's thinking and what he has to say about it.

And remember that the prosecution was reserving the right to raise during Trump's supposed testimony on cross-examination any number of prior bad acts. And as we were discussing, of course, he got plenty to pick from when it's Donald J. Trump.

But specifically, they listed out a chart, which I'll link to in the show notes, that they wanted all these different discrete bad acts from different proceedings and things that we're already familiar with, like the Letitia James civil suit in which he just received this massive, nearly $500 million judgment that continues to grow. And that is, of course, directly relevant because it's talking about corporate fraud, which is the center of this case. Now, that was a civil case, not a criminal case. But of course obviously the prosecution wants to show this is a guy who knows how to commit fraud.

0:13:30 Thomas: Yeah. Right

0:14:26 Matt: And again, the purpose of this, just to be very clear, about this prior bad acts evidence is not to introduce it for the truth of it. It's just to impeach his credibility and say, you know, weren't you the guy who was on the other side of this judgment? They can't go through and have, you know,, a whole trial about all the different things he did and exactly how he got to these places. The judgment inquiry is going to limit that testimony. Know, you there are a couple of places where he just lied under oath. He testified untruthfully, as the prosecution said, about the law clerk, for example, Judge Ngoran's law clerk. Was fined $5,000 on one occasion, and then $10,000 five days later by continuing to attack Judge Ngoran.

0:14:33 Thomas: Wait

0:15:02 Matt: Those things are going to come in.

0:15:01 Thomas: What the lock what is that yeah

0:15:05 Matt: I don't remember exactly what he said about her, but that she was political or that somehow she was in on it. Was just one of his many enemies. And the judge was very protective, obviously, of his law clerk and she has nothing to do with anything and and she shouldn't be involved in any this. That gets to come in, that he testified untruthfully under oath when he claimed that his public comments about a judge's law clerk were instead about Michael Cohen. He was saying, the person's sitting next to the judge, right?

0:15:17 Thomas: Oh that That's, yeah, yeah.

0:15:28 Matt: Yes. Yeah, right.

0:15:29 Thomas: Great. I like that.

0:15:30 Matt: And then the judge did some baby splitting about the E. Jean Carroll case, as you must, because it was a little touchy, because we've got both defamation and sexual sexual abuse. And, you know, I want to be very careful because people keep saying he's found liable for rape. He's already sued Judge Stephanopoulos for saying that that is not what the liability was. Obviously, he sexually assaulted, sexually abused her. Also lied about her quite a lot. He made what was determined to be a false statement with actual malice. So the baby splitting here is that Judge Marchand determined that the information about the defamation and the basis of that can come in, but not about the sexual abuse itself, Which I guess is a fair compromise, since we're not getting into the details.

0:15:33 Thomas: Sure. Yeah. Mean, we do have to remember, again, this is about payments and, you know, that kind of fraud. And it does make sense. Like, if this were any other defendant, think you it would be reasonable to be like, well, that's too prejudicial. You don't get to come and say, of course he committed fraud because he's a rapist.

0:16:11 Matt: Yeah.

0:16:24 Matt: Gave he the prosecution quite a lot they wanted here, but not everything. I had already forgotten about the Trump v. Clinton case from last year, but Donald Trump sued Hillary Clinton. It's just absurd. And it was actually found to be a frivolous, bad faith lawsuit. He sued her saying that somehow she had cooked up the Russia, Russia, Russian conspiracy with his enemies in the FBI or something. It's not even worth talking about. I don't know what it was, but yeah.

0:16:46 Thomas: That's Right. That I do remember feeling like, okay, is somebody just trying to make money off them for filing crap or you never know? Or it's like, it could be true believers. Like, it does seem like, you know, we talked about that guy who moved to Florida, who defected to Trump in the year of our Lord 2024.

0:16:54 Matt: It's nonsense. Yeah. Going to be major character. In these transcripts and these proceedings. Yeah. Todd Blanche.

0:17:07 Thomas: Oh, crazy. Anyway. Was the ruling about The Clinton Complaint?

0:17:13 Matt: Doesn't come in, so nothing about the Clinton lawsuit. It's just too far afield. I think that he balanced it pretty well, but it was very much in favor of the prosecution. Judge is allowing the stipulation that Trump dissolved his Trump Foundation after and willful self-dealing transactions. So, yeah, again, something else we've already forgotten about. But yeah, he had to shut down his charity because of a bunch of fraud. So a whole lot of fraud and lies get to come in if Trump testifies. But first of all, Trump is a nightmare client. Can't control him. Really want him to. Obviously, we all want him to. It's It's going to be a beautiful day. And then I will really want to see a video, and I'll be be sorry not to.

0:17:47 Thomas: He testifies, we will read that entire goddamn transcript on the show.

0:17:50 Matt: Look at voice actors or something. We've got to bring it to the people.

0:17:53 Thomas: Yeah, yeah. He's not going to. Of

0:17:56 Matt: Because especially after this, I mean, I would strongly advise my client. I mean you can can advise advise Donald Trump to do whatever you want. He's going to do what he's going do. Nightmare client, possibly the worst client I've ever heard of for anybody. He may still want to do it, but there's a lot going against Now, the one reason the defense may still want him to testify is that intent is a very important part of this crime. And they're going to have to try to show that he didn't know or didn't intend. You can see what they're signaling already in their opening statements. We're getting a real preview of what the actual defense is, which is the best purpose of an opening statement for the defense. And they're going to try to say that it was Michael Cohen and other employees that kind of cooked this up. And he was just signing checks, basically. So just

0:18:32 Thomas: Course, Innocent innocent little Trump. Just everyone just committing crimes around him. He had no idea.

0:18:38 Matt: Put the checks in front of him and he signs them. What are you going to do? From there, the court gives a kind of a brief overview introduction to the jury, as you'd expect in any case. And then we're off with opening statements. So I want to talk a little bit about the purpose of opening statements and what these are like in particular, and going to go deeper on everything to do with the case, including the players.

I'll tell you a lot more about the lawyers next time, but just want to kind of give you a taste here because think it's interesting. I think it's good lawyering, and these people are getting paid pretty well to do this, we might as well show off what they're doing.

Prosecution, I thought, put on a very good opening statement that really takes this beyond a financial crimes case, that really shows you that this is going to be a lot more exciting than you might have thought from a charge called falsifying business records. I will just read you a little bit of the opening statement so you can get a flavor of this. And, uh, I'll have you read a little bit of defense after this so we can see the contrast.

0:18:39 Thomas: Yeah.

0:19:28 Thomas: Sure. Make me be the asshole. Okay.

0:19:31 Matt: You got the voice for it. Let's see.

0:19:34 Thomas: I do have the voice of an asshole. You're not wrong about that.

0:19:36 Matt: I'm saying you have the voice FOR it. You can employ one. Just too sound serious, too. Colangelo, this is Matthew Colangelo of the prosecution. We'll tell you more about him next time. Opening line. This is a very solid start. Case is about a criminal conspiracy and a cover -up. Defendant, Donald Trump, orchestrated a criminal scheme to corrupt the 2016 presidential election. Then he covered up that criminal conspiracy by lying in his New York business records over and over and over again. Right up front, he's starting with the word conspiracy and cover -up, not what we expected to hear in this case, because he's not being charged with being a member of a conspiracy.

0:20:10 Matt: He's not Being charged with obstruction of justice. He is being charged with falsifying business records. There's a very good reason he's doing this, and it's because they're going to be developing this theory that catapults this case from a misdemeanor to a felony. And it's very important that they tell you up front that he was doing this in the service of committing a felony, which is going to be this election violation. So they're making this about an election case. I think it's also a great attention getter because it really makes you wonder, criminal conspiracy and cover -up, what are we talking about? What's going on here? I think that's a very good hook, very good start.

0:20:05 Thomas: Mm -hmm. Oh yeah. I do want to note that he didn't have to say the evidence will show. I was going to ask earlier, like, isn't that just like a, how how, meaningful is this distinction between you don't get to make arguments? Like as long as as you add a little caveat of the evidence will show that Trump did this, but I'm hearing in that, that he did not even do that. He just said Trump did that.

0:20:52 Matt: Yeah. Yeah, he's just telling you straight up what... Yeah, no, he didn't even have the caveat.

0:21:00 Thomas: Yeah. So you are allowed to

0:21:01 Matt: You're right. But

0:21:02 Thomas: Not, so what are the frigging rules here?

0:21:05 Matt: I mean, he is not stating anything directly that has to do with the charge. He is just sort of telling you what their their theory of the case, and what the story that they're going to tell you is going to be. Now, he does not cross the line, or at least he doesn't get objected to. There will be objections to the opening statement of the defense. And I guess we can contrast that, and I can show you the difference. And I think the defense kind of slipped up by leaving themselves vulnerable to those objections, because for opening.

0:21:26 Thomas: Because Pretty rare, right? Like, don't want to be in a position where people are able to object to your opening statement. That seems

0:21:33 Matt: Within the first few minutes of the jury meeting you and seeing you doing your job, you're getting objected too, and breaking up the flow. So it's not great. Colangelo's opening was 45 minutes just by the book straight down telling you just in careful detail about the way that AMI, American Media Incorporated, does business, which is what we're going to be hearing from the first witness, David Pecker, about the catch and kill scheme, about how Michael Cohen was involved. He gets out in front of the fact that Michael Cohen is a liar and a perjurer, tells you about why you should believe him anyway.

And really does a good job, I think, of addressing everything could come up in this case and what you should think about it. What he's not doing, of course, in an opening statement is saying, so here are all these facts, and that's why you should convict. He's saying is what you're going to hear will inescapably lead you to one conclusion, but he's not going to tell you about how it meets the elements of that crime yet, because we haven't heard about what the crime is.

I can tell you, just read you the end here, because it's a pretty typical ending for an opening statement, but I think it's pretty good. I said when I started, case is about a criminal conspiracy and a cover -up, illegal conspiracy to undermine the integrity of a presidential election, and

0:21:38 Thomas: Donald

0:22:35 Matt: Illegal election fraud. At the end of the case, we are confident that you will have no reasonable doubt that Donald Trump is guilty of falsifying business records with the intent to conceal an illegal conspiracy to undermine the integrity of a presidential election. You credit all of the evidence that people will present, we ask you to use your common sense, look past any distractions, look past any relevant sideshows that may pop up during this trial, tune out the noise, focus on the facts, focus on the logical inferences that follow from those facts, focus on the evidence, listen to the testimony, read the documents, the emails, the text messages, the bank statements, the handwritten notes, all of it. And after all of that evidence is in, we'll have a chance to speak to you again during closing arguments. My colleague, Joshua Steinglass, will go through all of that evidence and explain that it inescapably leads to only one conclusion. Donald Trump is guilty of 34 counts of falsifying business records in the first degree. Clean and simple. It's pretty good.

0:23:27 Thomas: Trump dealt it, I know

0:23:30 Matt: You've smelt it. But there is a general principle in public speaking, I'm sure we're all familiar with, that you've got to tell them what you intend to tell them, tell them what you're going to tell them, tell them, then tell them what you told them. And of course, we're in the tell them what you're going to tell them stage of that, and then bringing that out in the direct and the cross-examination, we're going to tell them we intend to tell them sort of by steering the testimony that way. But I think that's a pretty good setup for all of this.

0:23:31 Thomas: Yeah, yeah.

0:23:54 Thomas: Always picture the jury naked.

0:23:56 Matt: Yes. But that's the other thing I was going to say. I don't know, obviously, what this presentation looked like. Seems to be pretty smooth and very well delivered. I generally, because I have the luxury of working with smaller criminal cases, I never use notes in my opening statements. I rarely use them in my closing statements. I usually know my cases well enough, and I know what I'm going to saying. And I just really believe, and this is, I think most trial lawyers generally believe this, you got to keep it as natural as possible.

0:24:18 Matt: You got to be talking to the jury.

0:24:17 Thomas: Right, but Do you do the thing where you get up for your closing statement, you're like, like, ladies and gentlemen, the jury. And then you look at a paper and then you tear it up. And then, you're just like, I'm going to speak from the heart.

0:24:28 Matt: Yeah, I've never done that one. I don't know if anybody's ever done that. Yeah, see how that goes.

0:24:29 Thomas: Okay. Try it next time. Let us know how it goes. Patreon goal. Matt, we'll try that.

0:24:37 Matt: Know, in one of those smaller cases, it doesn't matter so much.

0:24:40 Matt: One of those that I have. And so generally, though, you know, I really enjoy developing an opening statement, developing my theory of the case, my theme theme of the case. You know. I'm a storyteller. I was almost a journalist. And I like to think about things in terms of narrative. And, you know, like in my favorite trial of all time that I did, I got to go to a small town where a cop had done some pretty bad stuff. And I wasn't sure about how the jury was going to feel about me ragging on small town cops.

0:24:48 Thomas: Yeah. Yeah. Right.

0:25:06 Matt: So I kind of carefully approached it by saying the story you're going to hear today is about a police officer's first day on the job encountering somebody who's having the worst day of their life. We knew already from discovery that it was the officer's first arrest. So I did not hesitate to use that to every possible degree that I could. And by using that kind of a theory and that kind of a story, what you can say is, well, you know, this obviously, right.

0:25:28 Thomas: Cops are fantastic. They're just phenomenal. But, this one. No, I get it. Like, you do have to realize who you're talking to. And, knowing your audience is like one of the most important things of any public speaking at all.

0:25:35 Matt: Sure. Certainly certainly of trial work, you got to have some sense. And of course, I know basically some things about the jury through the questionnaires, but I don't know everything about their opinions. But I don'T want to start in by ragging on one of their local cops, because you just don't know. Maybe in a Boston jury, that would work a lot better. I'm sure it would.

0:25:51 Thomas: Yeah.

0:25:51 Matt: But to just say this was, you know, a cop who overreacted and went a little too far and was having a bad first day, make it a little bit sympathetic. We've all had a bad first day, you know, that kind of thing. But in this theme, I thought this was really good. He's telling you up front something that I didn't expect to see, which is that we're going to be talking talking about a conspiracy and a cover -up and election fraud. And, you know, obviously he gets into the rest of it with the business records, but I think that's a really good way to kind of perk the jury's ears, make them think about what they're actually hearing here.

0:26:16 Thomas: How do you feel about that 45 minutes? What's the conventional wisdom on how long you want to go? That feels a tad long to me. I don't know how much people are, you know, retaining, especially because they don't get to hit that 1.5 speed, you as a jury.

0:26:30 Matt: It's true. It's a little long. I mean, the defense was only 25 minutes, and I think that's advisable. But they also have to address a lot of things, and it's a fairly complex case as these kinds of things go. And he has to address the fact, for example, that he's got Michael Cohen testifying, right? And he's a complicated guy. There's a lot to talk about there. You know, I think that from what I can see here, there wasn't a lot of fat. I think that it's a pretty lean opening statement.

0:26:52 Matt: It's just a lot to get through. But we can contrast that with Todd Blanche's opening statement, which begins at page 888, if you'd like to give that a read.

0:26:51 Thomas: Right. All Right. Uh, "Trump is innocent. President Trump did not commit any crimes. How far do you want me go? It's a good opener. The Manhattan district attorney's office should never have have brought this case. You've heard this a few times already this morning, and you're going to hear it a lot more during the trial. The people, the government, they have the burden of proof to prove President Trump guilty beyond a reasonable doubt. What that means, as a few ago, is that President Trump is presumed innocent. He's cloaked in innocence. And that cloak of innocence has a certain scent. And that's what that is. It's nothing else. No. And that cloak does not leave President Trump today. And it doesn't leave him at any day during this trial. And it won't leave them when you all deliberate. You will find that he is not guilty. President Trump, you've seen him, of course, for years and years and years. You've seen them on television. You seen phones of him, you seen articles written about him. He's in some ways larger than life. Three-time Super Bowl champion, Donald Trump.

But he's also here in this courtroom during doing what any of us would do. Sorry, I can't. How can you not make the joke? He's doing totally natural things that the body does. Okay."

0:27:03 Matt: Great start. A little further. Yeah.

0:28:20 Thomas: Who among us? Okay, sorry. Back into the script. Back into script. But he's also here in this courtroom doing what any of us would do, defending himself. You're going to hear me, as I've done already today and others, even witnesses, refer to him as President President Trump, this is a title that he has earned because he was our 45th president. We will call him President Trump out of respect for the office that he held from 2017 to 2021. And as everybody knows, it's the office he's running for right now. He's the Republican nominee. But, and this is important, he's not just our former president. He's you've seen on TV and read about and seen photos of. Oh my God, here we go. He's also a man. He's a husband. He's father. And he's a person just like you and just like me. Uh, objection. No, he's not.

0:29:09 Matt: There you go. Yeah. We need to prove that. I don't know if the evidence is going to prove he's any of those things.

0:29:16 Thomas: I know.

0:29:17 Matt: Certainly the evidence is not going to proof he's much of a husband.

0:29:18 Thomas: No.

0:29:19 Matt: So you get the idea. The pretty typical kind of opening. But I just wanted to go through a couple of things. Main defense here that they're outlining, actually, I think some of these things are worth reading just a little bit more. We won't go too on, but about page 74, the invoice was processed?

0:29:30 Thomas: Sure. No this is fun. Invoice was processed. Somebody at Trump Tower generated a check, the check was ultimately signed, and there was a record in a ledger on President Trump's personal records that reflected the invoice. For nine of the checks, the check made its way down to the White House and President Trump signed it. You'll hear that he's the only signatory on his personal checking account, which is why he signed the check. So what on earth is a crime? What is a crime about what I just described? The business records violation that the people have brought against President Trump, the 34 counts, ladies and gentlemen, are really just 34 pieces of paper. The 34 counts of the invoices that Cohen sent to the folks at Trump Tower, the checks that were generated because of that invoice, and then the ledger notation from the invoice that said for retainer agreement and legal services. None of this was a crime. Now pieces of paper Matt, yeah, these aren't business records, they're just paper.

0:30:25 Matt: You go. So yeah, none of this was a crime. So I really enjoyed that. Just pieces of paper. In other words, business records, which were falsified. Come on. They're meaningless, really, if you think about it existentially. I mean, nothing at all. So yeah, it just keeps going. But you can see that what they're signaling here is the defense is going to be that, you know, these are business records, that they weren't, Trump wasn't carefully supervising them. Actually paid Cohen $420,000 because there were some other things, and he actually did give him a bonus in the course of doing that. But of course, the $420,000 was styled as a retainer, which it wasn't because there are no legal services provided, because that wasn't really Michael Cohen's job to provide legal services, as we know.

0:31:08 Thomas: Yeah. And I know a little something about this. If there's retainer, wouldn't there be, uh, detailed billing records, uh, that retainer over time, that

0:31:08 Matt: Yeah. Retainer agreement, one would hope you'd think they could produce that too.

0:31:16 Thomas: Hmm. Interesting.

0:31:19 Matt: I believe in New York, that's required the same way as everywhere else. Talk about objections and then we'll move on to our bar questions today. But

0:31:19 Thomas: Yeah. Very curious about objections in the opening statements. You should expect that you will learn that when Miss Daniels threatened, threatened to go public with her false claim of encounter with President Trump back in 2008. Says sick, by the way. That the wrong year or something? Or if the transcriptionist is like, well, it was a real sexual encounter. So anyway, back in 2018, that It was, as the People just said, very close to the election. And it was almost an attempt by Ms. Clifford. I think that's probably like almost certainly an attempt is what I would think it would be, right? Okay. And it Was Almost an Attempt by Ms Clifford slash Ms. Daniels to Extort President Trump.

0:31:39 Matt: Not sure what that's about. Like some shade there somewhere.

0:32:05 Matt: Objection, the court sustained. So he was riding the line there by saying it was almost an attempt by Ms. Clifford and Ms. Daniels to extort President Trump. But, you know, that's just a little too far. We're not there yet. That's a conclusion that you have to draw about a witness.

0:32:07 Thomas: Wow.

0:32:18 Thomas: You feel like that meant to say almost certainly in attempt? Is almost an Attent be? What would that be?

0:32:23 Matt: Think he's really trying to ride the line and not just come out and say that she was trying to extortion him or she was extorting him. I mean, I think that he maybe thought that was way through.

0:32:29 Thomas: And so this is interesting. He just said objection. The court said sustain. So this This was something so obvious that you didn't really need to specify like objection, something, something like is there word a technical for what's happening? Usually, usually there's some phrase that you say after objection, isn't there? And I just want to know whatthatis.

0:32:39 Matt: It's the characterization of extortion, right? So that's a little too far. Sure, you don't have to. You're not required to. That's kind of a movie thing. But, you know, like you said, sometimes it's just so obvious that everybody knows the kinds of things you can say at openings and the kinds of things you can't and when you're riding the line.

0:32:50 Thomas: Yeah. Hmm. Sure. You do this every day. Yeah.

0:32:59 Matt: And he's pushing it a little bit.

0:32:59 Thomas: Okay. Gotcha.

0:33:00 Matt: But, so then we get into a little bit more of a conversation on next page, passage. Don't have to go the way through this, but this is where we get into a sidebar during opening statement, which is never good. You don't want to be interrupting to that degree where you have to walk up and the judge has to call you up. But it's at the point at which he's talking about the fact that this agreement was negotiated by lawyers. And then Colangelo objects, which seems strange because it was, right? And the court has to ask him because it's not immediately apparent what the objection is.

0:33:25 Matt: And Colangela says, "Your Honor specifically excluded the presence of counsel defense." So this is something that had already been discussed, not the advice of counsel, but the presence of counsel. The fact that something happened when attorneys were around and therefore it was sort of sanctioned, or attorneys knew about it, so it must be okay. Know, there's just a little kind of sidebar here about how Todd Blanche says, "I'm sorry, Your Honor, there is going to be testimony from Mr. Cohen that he was a lawyer, and the testimony from somebody else that he is working with is also a lawyer." And the court says, "Just stay away from it. We are not going to get into that." Yeah, it's just like little subtleties.

0:33:08 Thomas: Wow. Oh, yeah. Yeah. Yeah, huh.

0:33:52 Thomas: So is that because that was an attempted defense of Trump to be like, I was just doing what lawyers told me or something? Is that what that is? Like, why was this excluded?

0:34:00 Matt: And not advice of counsel, but presence of counsel. And so he was kind of working, he's trying to work in this a little bit of defense into this opening statement, and it's something that's already been excluded. We're not allowed to talk about that part of the defense that council might have signed off on this or sanctioned it, so

0:34:06 Thomas: Presence. Right. I guess so so. Why would he have excluded presence of counsel specifically? I'm just trying to understand in detail here. I'm not sure I'm getting it.

0:34:20 Matt: Obviously we haven't seen, you know, I'm not privy to exactly what the arguments were Here, but there was an argument, I think that all of this was done with the knowledge of attorneys, so it must be fine, I think, more or less, is The the idea.

0:34:24 Thomas: But The Judge is like already just reacting to like it being excluded, so the judge's like, not only no, but f no, like that's ahead Of time, you're not allowed to bring that. Okay, So,

0:34:37 Matt: Yeah, this -trial. This was already decided. It's already been excluded. We're not doing it.

0:34:42 Thomas: It the case that, so maybe just in generalities, is it a case that, like, like, you try to raise a defense, but it's so, like, counter to law that the judge is like, I don't even want, you don't even get to raise that. That what's happening? Or am I misunderstanding?

0:34:54 Matt: Yeah. No, you can negotiate kind of about the scope of what your defense is going to be. And this is why we were talking about in the Florida case, about how Eileen Cannon still hasn't ruled on that motion about Jack Smith is trying to get Trump to say whether or not he's, he's going to use an advice of counsel defense because, you know, obviously he's going to maybe try to say that his lawyer said he could hold on to those documents. So these are all things that have to be worked out to kind of keep the arena clean so we know what kind of questioning and lines of testimony we're going to be going down. A little peek inside here. There's just a lot more going on here than you might expect just from basic opening statements. Just a few things I just wanted to pick out as we're going. But

0:35:05 Thomas: Yeah.

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0:37:08 Matt: He's talking about how Michael Cohen's obsessed with Donald Trump and how he can't stop talking about him. And even last night on some outlet, he was out there talking about his despicable human being. Of course, this is a very strong point to the defense, the fact that Michael Cohen is a known perjurer and has reversed his story a couple of times. At the bottom there, line of page 901, one.

0:37:26 Thomas: Separately from his obsession with the president, with President Trump and his obsession to get President Trump, on multiple occasions, Mr. Cohen has testified under oath and lied.

0:37:37 Matt: Objection. Sustained. Again.

0:37:39 Thomas: Why is that? So that's not established that he lied? Why is that one instantly sustained?

0:37:44 Matt: Because we don't have, on multiple occasions, he's being very broad here. Mr. Cohen has testified under oath and lied. So I think there's already been a discussion about how much you can talk about where he's light in other proceedings, because he hasn't lied in this proceeding yet.

0:37:56 Thomas: Yeah, yeah. Okay. He walked, he has walked into a courtroom very near here, raised his right hand and swore to tell the truth. And NOW he will tell you, I expect, that he was lying.

0:38:08 Matt: Objection. Sustained. Please approach. So again, another sidebar during your opening statement. Not ideal.

0:38:14 Thomas: And yeah, and your character is saying there's no showing that that Mr. Cohen testified falsely in any of the proceedings that Mr Blanche is referring to the,

0:38:17 Matt: Mr. Colangelo. Right. Cohen has testified a number of different Trump related things. There's a disagreement there's disagreement about where Michael Cohen lied and when, and So here's the sidebar. Let's just just do the sidebar very quickly. So this is Colangelo. There's no showing that Mr. Cohen testified falsely in any of the proceedings that Mr Blanche is referring to.

0:38:33 Thomas: What I just said is that he testified that he justified falsely. He will testify that when he pled guilty in front of judge Polly, he lied.

0:38:47 Matt: Else says that's not what he said. Mr. Blanche, the

0:38:49 Thomas: That's what he said. He did say that.

0:38:51 Matt: Court, that is not what is in dispute. I don't know what you're testifying about from the podium. We'll hear it from the witness stand. Not great.

0:39:00 Thomas: Wow, they can use it against me, what?

0:39:02 Matt: Court that's in dispute. I read it. It's in disput. I've heard it's in dispute. You are not going into that. So I'm not sure there's something else going on here. And

0:39:09 Thomas: It going on at length here. I'm trying to understand it, and he's like, he said he lied across the street. Someone says it is across the street, and then you know, the the prosecution says that's not what Mr. Blanche said. He said lied across the St second. If you put the entire higher testimony in context and full. And then Mr. And then Trump's lawyer says it. And then the the judge has to say, relax, relax, let him speak, I need to hear what he's saying.

0:39:17 Matt: Yeah, they, yeah.

0:39:37 Matt: Yeah.

0:39:38 Thomas: That's not a good start. This is all during Blanche's opening statements. Yeah.

0:39:38 Matt: And then Colangelo explains, no, and opening. Didn't even talk about this, but earlier morning in the gag order hearing, Merchan said directly to Blanche, losing all credibility, just already. We're talking, you know, day two. Of The actual trial, what they're arguing about is what Michael Cohen said that he lied about. And it's just, it gets really convoluted, but you can see how you got to be very careful about what you say in opening statements and make sure that you're going to actually say what is going to be said and that you're not mischaracterizing the evidence. And that's what the defense is. This is what the prosecution is looking for here is for any indication he's mischaracterizing or misleading the jury in an opening statement. You can be a little little more broad.

0:39:49 Thomas: Wow. Yikes. Oh, but I love this. I'm sorry. I mean, I'm reading on and I already had been asking you about this distinction between statements and arguments and they, they actually get into an exchange here, this might be helpful. The judge said, "This is an opening statement. It's not argument. If you have this at the end of the trial, you can argue it at summations. I don't want to hear it now." So, and Ms. Nischelle says, "Can't Mr. Blanche say, I expect the evidence to say, we heard from the prosecutor, we expect the evidences to say. We don't expect him to say." The court: "It's argument. You can bring it up on summation." Well, that's interesting.

0:40:15 Matt: Yeah.

0:40:45 Matt: Yeah. Because he's kind of getting into a real subtle nuanced point about Michael Cohen's different kinds of modacity. He's talking about what Cohen's going to say, he has to kind of address what the prosecution said that they expect he's going to say and what you know he's gonna say. But he wants to make some arguments about Cohen and who he is and how he's taking it. And it's just getting a little too much. And the judge is like, like, this is argument, you save it for the end when you, you know, you could tell the jury all about it then, which is true.

0:41:06 Thomas: Interesting. He ends up saying, you will learn, ladies and gentlemen, that Michael Cohen has pled guilty to lying under oath.

0:41:16 Thomas: So I guess that was what he should have said.

0:41:16 Matt: That is correct. Right. But he was trying to make it sound like he was lying all over the place when, you Know, there's kind of a more defined places where he's said that he lied or not lied. The ending isn't anything too spectacular. It's It's pretty much what you expect that, you our defense. Here's what you're going to hear from any number of people that you can't trust who have their own motivations to say these things. And you're gonna find that he didn't actually falsify anything. So, and he says, actually, the last line is pretty good.

0:41:18 Thomas: Okay. Gotcha.

0:41:40 Thomas: If you do that, there will be a very swift, a very swift, not guilty verdict. Thank you.

0:41:44 Matt: A little bit of Trumpian talk there. A very swift verdict.

0:41:47 Thomas: Yeah. The swiftest. The most swift. The least guilty. Are saying I was the least guilty defendant ever. They've never seen a defendant less guilty than me.

0:41:49 Matt: That's right. Right. So, yeah, that's swiftly. You go. Think that Blanche could have restrained himself a little more, but it is hard sometimes in these things when you're summarizing that much evidence. But he did get in and out in a clean 25 minutes. So good on him.

0:42:09 Thomas: But you don't want to have all that happen during your opening statement, right?

0:42:12 Matt: No.

0:42:12 Thomas: I mean, this is the first solid impression in front of the the right, I mean, that's bad, especially because the judge is like, sustained, you know, it might be one thing if, if it looks like, oh, the other side's just being argumentative, but when the judge's like, hey, stop it, like, that's not gonna look good, right? Yeah.

0:42:16 Matt: Yeah. Right. No, it gets really bad if you get objections during closing arguments because you have a lot more leeway there. There. But we'll see. We'll see how it goes.

0:42:34 Thomas: One last question, are you a, uh, go up to the jury box kind of guy when you do the, that's always the movie thing like you do the uh pace, pace around and then you go up, get right, right next to them, what are the, what are, are the rules on that?

0:42:42 Matt: Oh, yeah. I'm a pacer anyway. I like to move around. You don't want to make yourself too distracting. But I think it's good to just kind of go through and have a conversation with the jury and sort of talk to them about what we're going to be talking about together.

0:42:49 Thomas: Yeah. Ask them what they think or no.

0:42:59 Matt: Yeah, and just show them the respect they deserve because they're sitting there listening to you.

0:42:59 Thomas: Okay. All right. And then they get right into, you the first witness already. And I'm sure we'll talk more about that on Friday.

0:43:09 Matt: Yeah, I didn't have much in this first day to say. And it got cut short today because one of the alternate jurors had a dental appointment of some kind of emergency dental work. So the trial actually concluded it.

0:43:18 Thomas: The entire world knows about your dental appointment and that it cut this short. Isn't that weird? What a weird thing.

0:43:21 Matt: Yeah. It was already on this transcript. Yeah. No, it's, so the trial ended at 1242 or something today. That's where we're at with this, and I'm really excited to be digging into these transcripts as we go. There's going to be a lot to talk about, and I think a lot of moments that we can bring out that media is not going to be talking about because they're not as interesting to, you the overall case, but I think just as a matter of trial practice, they will be.

0:43:44 Thomas: Right. I love it. I'm excited for, um, Friday, which is going to be that kind of complete guide. And I'm exciting to go Through more of this. So there you go.

0:43:51 Clip: You come in here with a skull full of mush and you leave thinking like a lawyer.

0:43:56 Thomas: Let's get to last week's answers on T3BE. And these were questions 20 and 20. And right now, prior to this, I believe I'm sitting on a 10 out of 15, which but let's see if I can improve upon that.

0:44:10 Matt: Right. The question, the first question today for everybody was Clyde, a local street performer, is doing some magic tricks, and he announces that he's going to make a wallet disappear. And he goes ahead and does that for Charles. The wallet does not reappear, and Clyde later confesses that there was no magic trick, he just wanted to steal the wallet. Wallet. So, pretty straightforward. In this case, we're looking at A, Clyde cannot be charged with robbery as he did not use force or threat of force. B, Clyne can be charged With robbery as he deceived Charles and the audience. C, Clyte cannot be Charged with robbery as Charles voluntarily handed over his wallet. Clyd can be Charred with robbery, as he intended to steal Charles's wallet. Really what this comes down to is what the elements of robbery are.

0:44:50 Thomas: Yeah.

0:44:50 Matt: Do you know what what the elements of robbery are.

0:44:50 Thomas: I Really, should... I really should, because this comes up a lot on T3BE, and I, I, my memory was that I really thought you had to use either force or the threat of force. That's kind of what I thought it would be, but, uh,

0:45:03 Matt: Your memory can be pretty good. That's a solid answer. You do need to actually use force or threat of force. And we're looking at a situation in which he just tricked somebody into giving the wallet. So this really would be more a case of fraud or larceny. And larcenY by trick is actually a crime in many places. And that's what this really is, what it comes down to. But there are any number of other offenses this could be, but because he didn't actually say, you money or your life or whatever, he just did a magic trick. It is not robbery. So, this is a pretty straight up, straightforward one.

0:45:03 Thomas: Oh. Okay.

0:45:29 Thomas: Now, What, What if he had said, give me your wallet or I will do a magic trick that you have to watch, watch, would that be considered? Making someone watch a magic act could be considered forced in some circles. I don't know. I'm not sure.

0:45:36 Matt: Yeah. Well, it depends. Jurisdictions. Yeah. No. But yeah, this is one of the easier ones we've done. You called it.

0:45:43 Thomas: Yeah. Oh, good.

0:45:48 Matt: You're right.

0:45:48 Thomas: And when they are that easy, when they seem that easy I get more worried that there's a trick and that's the thing.

0:45:54 Matt: Should be.

0:45:54 Thomas: My answer was A, that was correct. My second choice was C, just in case, because I I was pretty sure this wasn't robbery. Now we've added a new feature to T3B, I think, which is, did I get the stupid answer? B's got to be the stupid answer, right? I love deceive Charles and the audience. It's so funny to me.

0:46:09 Matt: Yes. We had a deal.

0:46:13 Thomas: Like that would be an element. Like if there's an audience around, you also have to have deceived them. Otherwise, like if he had winked at the audience and they knew about it, free to go. Can't be charged with a crime.

0:46:15 Matt: Right. Totally. We have a winner from Reddit. I've just sent it to you.

0:46:28 Thomas: Is from Reddit user Charles Dickens, a box.

0:46:32 Thomas: Got his Dickens in a box anyway. The answer is: a robbery is the taking of something through the use or of threat of force. The thing that helps me remember this is the term "highway robbery," summoning the mental image of a magician doing a trick on a, no, I'm just kidding. Summoning the metal image of a bunch of robbers chasing down a stagecoach with guns or woodland brigands holding a passing noble at sword point. These people commit robbery. The person in the has has committed larceny or theft by deception. Wow. Did you do that? Is this your sock account? Are you Charles Dickens a box? You have to tell us if you are.

0:47:06 Matt: Very good. I am not. No, but good work.

0:47:13 Thomas: Yeah, that's an excellent answer. They absolutely nailed it. Thank you. I will try to remember that. Highway robbery will help me remember that and you're this week's winner. Great job. It's time to go on to the question that's for patrons only.

0:47:28 Matt: So this one involved a philanthropist named Peter, who stood up and said in public that he was going to donate $10 million for an upcoming medical research project at a university. So the university relies on this promise, does some investments in infrastructure, and then Peter changes his mind. The question is, can the university enforce Peter's promise when he breaks it? A, no, because Peter's Promise was a gift without consideration. B, yes, because the university detrimentally relied on Peter's Promise. C, no because there there was no signed agreement between Peter and the university. Yes, because Peter's promise created a moral obligation.

0:48:05 Matt: I had trouble not laughing when I read that, because the law does not care about moral obligations.

0:48:05 Thomas: Yeah, interesting one. Yeah, yeah.

0:48:09 Matt: We already know that's the stupid one.

0:48:09 Thomas: I would normally scold you for giving something away, way, but that was so obvious that it wasn't even, yeah, yeah.

0:48:13 Matt: Yeah, it just shouldn't have even been an answer. So we're

0:48:17 Thomas: So I already got the stupid answer part right. D was the stupid Answer. Got that. Okay.

0:48:22 Matt: Down to two no's, one of them being that there's no signed agreement, one other being there's a gift without consideration, and one yes, which is that the the university detrimentally relied on Peter's promise. So last week when we were talking about this, you were saying that you didn't believe you could have any kind of a contract or agreement without consideration. That's not quite true, unfortunately, in this one.

0:48:42 Matt: So the mnemonic for this one, what you might remember is the Simpsons episode, Missionary Impossible, where Homer Simpson makes a pledge to end a pledge drive just so he can get back to watching PBS and destroys destroys the pledge. Remember this one? And it gets chased down by Mr. Rogers and Big Bird, and they all come trying to collect the pledge, and there is actually a legal basis to that episode.

0:48:41 Thomas: Okay, that's

0:49:04 Matt: If you do make a pledge like that, on which they detrimentally rely, and in that episode, they ended the pledge drive, so that was a detrimental reliance, because they thought they'd collected enough. So in this case, it doesn't matter there was no signed agreement, it doesn't matter there's no consideration, because the university took steps. And there's... there's case law on this, about if a 501c3 starts to actually do something with the money they're anticipating they're going to get from you, that it becomes a detrimental reliance, which creates promissory estoppel. So kind of an unusual one.

0:48:56 Thomas: Awesome. Oh yeah. Oh no.

0:49:33 Thomas: So my answer was a no, because Peter's promise was a gift without consideration. I thought you needed consideration. Fortunately, my second choice was B, so that's good. I did think there was some that chance that would be, uh, least helps to know enough that the signed agreement wasn't going to be the problem. So that helped me get the second chance, you know, which, which it doesn't really matter in the bar exam if I were really taking it.

But for our purposes, I'm going to go ahead and take that. It's not a win, but it's like less of a loss. OK, so if someone makes a promise, I, I also in my reasoning, I got a little mixed up, because it didn't feel much like detrimental reliance to me, because what they're just doing is like investing in infrastructure. You know what I mean?

Like maybe, maybe that wasn't a good thought, but is there anything in this concept, I don't know if there's like case law or what, but what would have to be detrimental reliance? Is it detrimental relapse merely to go spend the money on anything? Or does it have to be something that would be detrimental if you don't get the money that you're promised?

0:50:32 Matt: Find a New York case directly on point, just when I was looking around at detrimental reliancy from pledges. Almost exactly the same facts, except it was a library. And, uh, yeah, that he had, in that case he actually stopped paying in the middle of things, but you know, the university was able to show that they had made these investments specifically anticipating this money, this wasn't routine spending, right? So if they go out and do things they wouldn't do otherwise, that's the very definition of detrimental reliance, and

0:50:54 Thomas: If he forget. Forget the university, let's say I was like, I'm going to give you $10 million, Matt. I'm gonna declare on the show right now. I might, I might become liable. I'm not gonna give you $10 million, Matt, if you agree to exercise twice a day and then like you exercise twice a day, and then I'm like, I'm giving you that money. And then I go up in front of the judge and it wasn't detrimental reliance. It's good for him. He's getting some exercise.

0:51:16 Matt: At The guy looks Great, that's

0:51:18 Thomas: Yeah. He looks amazing. His butt is ripped. Look at those abs, Matt, lift your shirt. Look at us as rippling. And, like, to get at, does like it take to be detrimental? Because, honestly, like As stupid as that is It's like, yeah, that didn't really hurt you You got some exercise

0:51:23 Matt: True, it's A great, great point. If I quit my job to exercise because I was so excited about this $10 million, I think that would be detrimental reliance. But yeah, no, if you just get me to do something positive, that might be positive reliance, and maybe you don't get anywhere. I hadn't thought of that one. Yeah, potentially,

0:51:42 Thomas: That is interesting That is interested Okay, so I'm not crazy There is some, you there There's some distinction to be made

0:51:51 Matt: That'd be an interesting bar question. But I also wanted to mention the case of Moderna, which, of course, being a drug company, reneged on a pledge that it had made that it was going to not enforce its COVID-19-related patents against those making vaccines intended to combat the pandemic. Moderna broke that promise. Yeah, I didn't know that either. I just found that out.

0:52:05 Thomas: Wow, they did? I didn't know Okay, that Now, if anything is detrimental to reliance, it's got to be that. Holy crap. If someone started doing that and now they're going to get sued?

0:52:13 Matt: Yeah. They did. They sued in It didn't take them long. They sued Pfizer and BioNTech for patent infringement after publicly stating that they weren't going to do that. So that's an interesting example of detrimental reliance from a competitor, no less.

0:52:25 Thomas: Wow. Do an episode on that. I've never heard of it. How is That not something I've heard of? Because that is so weird. And right. Well, pin in that, Matt. Holy crap, I can't. Don't want to hear about that, maybe another time, we'll see.

0:52:32 Matt: I hadn't either.

0:52:42 Thomas: Um.

0:52:41 Matt: Yeah, it caught my attention.

0:52:43 Thomas: 11 for 17, dang it.

0:52:46 Matt: Holding in there. You're holding in. We'll get there. Have a patron winner, and it is once again Dan de Grand Prix, and I have to say I don't like to do repeat winners that often. Dan, as you might remember, contributed some wonderful poetry in the past, but this time Dan has really gone above and beyond, and I have to Say there's just no way anybody could possibly compete with what Dan did this week, so I'm going to send that to you.

0:52:47 Thomas: Yeah. Mm. -hmm. Yeah.

0:53:08 Thomas: The merit is there, you know, you gotta call it like you see it

0:53:10 Matt: Know, he put the work in. I think you'll appreciate this. He

0:53:11 Thomas: Oh sent me a SoundCloud link, um, Matt, which is not what I was expecting for the patron winner, uh, yeah.

0:53:19 Matt: Typically, we do want these in writing. Yes.

0:53:21 Thomas: Um, crap, someone has written a song. They say this is one of my worst ideas. So, all right, I'm gonna hit play on this thing. Okay.

0:53:50 Thomas: What the hell.

0:53:48 Clip: When you recast, it's hell.

0:54:01 Matt: Right, Dan.

0:54:02 Thomas: What

0:54:03 Matt: When you rely as people do and act believing that it's true, recall these words and feel them well. Promissory estoppel casts its spell. Dan notes that he is not actually a songwriter, but I think that's a song, um, wanted to go for some

0:54:12 Thomas: You then like, did you, did AI generate this? I don't understand. Does he normally just do production or something because, oh

0:54:17 Matt: That's pretty good, and I will note that you might want to note the name of the song, because I think it's especially relevant.

0:54:22 Thomas: It's uh, it's, I promissory to estoppel after this. Well, we are going to, uh, hold you to that, uh, we will detrimentally rely on your promise that you are no longer going to write songs, uh, you, it's only this once, we played it and that was detrimental to us, but no was, wow, that was something. Holy crap, the effort that was put into that, now I, now I feel bad that we're reducing to one T3BE question, uh, maybe we'll, maybe what we'll have to do is pick like two winners, maybe we can pick a non-patron winner and a patron winner, maybe that's how we'll handle it

0:54:41 Matt: Wasn't that bad kind of a short short film category, maybe some interpretive dance, I don't know, open it up, yeah the technical

0:55:02 Thomas: Daytime Emmys part category where it's like just the editing of the, you know, okay well let's have our one question for, uh, week 11, this is question 22, yeah.

0:55:07 Matt: Yeah yeah Jenny, a disgruntled tenant, had been living in a rundown apartment building for years. She was tired of the landlord's consistent failure to make necessary repairs. Teach the landlord a lesson, Jenny decided to set her apartment on fire, hoping that the fire would destroy the entire building and that she could start anew somewhere else. One night, she doused her old couch in her living room with kerosene and set it on fire. To her shock, the fire spread rapidly and got out of control, first time with the fire, Jenny.

0:55:36 Thomas: Geez.

0:55:37 Matt: Panicked, she ran outside the building, screaming and warning other tenants about the fire. Most of the tenants were able to escape the fire but two tenants, an elderly couple living directly above Jenny, were severely injured while escaping. Once the fire was put out by the fire department, the police investigated and found out from other tenants that Jenny had warned them about the Fire. Questioning, Jenny confessed to setting her apartment on fire. What is the the most serious crime Jenny could be charged with? Arson only. B. Arsons and assault. C. Arson and attempted murder. D. Arsen, assault, and attempted murder.

0:55:48 Thomas: Why Does it say what is the most serious crime, and then it lists multiples?

0:56:16 Matt: Guess the most, the like, charges that could be sustained. That's kind of a strange question.

0:56:18 Thomas: But it's weird that it's Yeah. It should be like, what is it, what is what it's saying. Okay.

0:56:20 Matt: Yeah. A little strangely phrased there.

0:56:28 Thomas: Because was expecting the answers would be arson, assault, attempted murder, and, you know, or whatever, and then I pick like what's the worst one. Okay, uh, wow, yeah, well, first of all, Jenny, um, bad plan, I don't I'm not a fan, I know we're, I know we're anti-landlord in these days, uh, but this is a little too far, can I say that, slightly too far Yeah, that's more pro -elderly neighbor than we are anti -lanlord I suppose, is what we're saying. Okay, so she set a fire, this, I mean, you would think that, um, negligence, and then there's like neglig, I mean, if you're, if you, your plan was like, I'm gonna set a fire, but it's gonna be one of those peaceful fires, but that only, it's a warning fire, and it's not going to hurt anybody, it's only going to deliver a specific message, I mean, that's not reasonable in mind.

I don't even get why she's like, she sets the couch on fire with kerosene and to her shock, it spread rapidly, but she already intended it to burn down the whole building. I don't understand. She just thought it would do it slower. Weird. Ran outside. She is warning everyone else. So I think that is kind of significant. Will it be significant enough to get her out of an attempted murder charge? Because, okay, so the elderly couple did not die. There, attempted manslaughter? That's interesting.

I've never thought about that before. I guess not. Would think there would have to be intent. And it's telling us that it's her intent. And we have to believe the bar, even when it says really stupid things, we have to believe the question. I'm a textualist. We're all textualists now when it comes to the bar exam. When it tells you that she didn't intend to kill anybody, I feel like that's telling us there's no intent here. Like, think this is worse than just arson.

Again, maybe it's not. Arson is pretty bad. Like if, you light something on fire and people are hurt, what do you get? Yeah, do, that's, that's a good question.

I feel like you get, I feel like someone who started, you know, we have a lot of fires here in California because we don't rake enough, and somebody who started one, I, charged with like a billion counts of murder, I swear, like, they were, they were, I think, I think they were charged, like, they facing a lot of time, I think, for one of the big ones, that's interesting.

Yeah, one thing to not intend to kill people, but also, like, a reckless disregard, I think, like, you're, you're, I think, man, how does that work with murder? Like, if I, if, just wave a gun, if I just shoot a gun a bunch in the air, I haven't, I haven't intended to kill anybody, let's say, but I hit somebody and they die, am I charged with murder, or am icharged with manslaughter? Crap, isn't there something like specific intent, isn't that something?

Okay, let's see, all, let's see, arson only, arson and assault, arson an assault, I, doesn't make any sense, I, crazy, I don't think there's anything about assault in here, she didn't assault anyone, you can't assault someone with a fire, can you? Assault with a deadly weapon, a fire, ooh, interesting. C, arson and attempted murder, mean, that's tempting. And D, arsons, assault, and attempted murder. Okay. Assault sounds dumb to me.

I could be wrong, but I think I'm going to first proceed on the idea that assault doesn't make any sense, but then again, it's serious crime Jenny could be charged with, not, not necessarily convicted, but I think, I think we've got to assume that you at least have to meet some threshold there to be charged with it. Doesn't sound right.

So I think I'm going to eliminate B and D for that reason, because they both contain assault and I just, don't, that doesn't make sense, so I'd be down to A and C. So is it arson only, or is it arson and attempted murder?

Hmm, mean, she screamed, she warned other people, I think that at least gets you out of something like that, says you weren't trying to kill people, I think, but, but it just feels like there's a level of recklessness that's like, it's so bad, I don't know how, like, what did you expect to happen, what was the best case scenario here, of if the fire spread slower, it would still kill people, I don't really understand that, like, was her plan always to warn people, she, if so, wouldn't she have done that, like, ahead of time or something, I, I don't, I feels like a level of negligence that's so bad, I, I it's hard to imagine it's only arson, attempted, do you need intent for murder, or is it, with, with no intent, is it always going to be just like manslaughter?

An, know, I feel like murder is an intent crime. And, man, I think I'm going to go with A, arson only. I don't know. Seems terrible. Like, I really don't like this. It doesn't make sense to be attempted murder, really. An assault doesn't made any sense. The end, it's just me getting more bar questions wrong. That's all that's at stake. It's only my life. So I guess I'm between A and C, and I'm going to go with A, weirdly. I don't know. I don't feel great about it, but that's my final answer.

0:56:39 Matt: Yeah we are pro -elderly neighbor.

1:00:58 Matt: And only that's your final answer well we'll see if you go down in flames next week we'll

1:01:03 Thomas: Right. Well, can't wait to figure out the answer to that. But like we said, one question, but we'll go ahead and pick two different answers because we still want to give that patron benefit of that shout out. No songs, though. Thank you. Thank you to our patron winner for retiring the idea of songs when it comes to patron answers.

There's only one thing left to do, and that's to to give a shout out to our top patrons, our Hall of Famers, our all -time greats on patreon.com/law. And this is the fourth quintile. Down to that last one next week. These are, of course, the Hall of Famers who pledge at the five dollar level and above for a whole month. Great ones here. Oh, man. Thank you. So much to Fraud. Fishy Hates Everything. Chris Simpson. Love the Extra Episodes. Opal Got Her Vagina During the Hiatus.

And Boy, Howdy, Is It Nifty? All congrats. Rats Liberals Own Guns to Support Root Cause Mitigation, Not Ineffective Gun Control. I Use a Phone With a Physical Keyboard I'm Fastest. I'm Fast at Text. Oh, man. I so, okay, so here's the thing, I'm doing these by myself this time for reasons, and I'm so sad because Matt needed to hear that, I'm going to make sure Matt hears that. I Vast at Text, because that is fantastic. Fantastic. That is really, really good.

This isn't a Patreon name and I'm not reading anything right now. I just personally think Legal Eagle Is So Handsome. Mark Schultz, the Cincinnati Kid. Bob Loblaw's Law Podcast. Guy Chapman, the Solutions Archaeologist. And Edgy Veggie. Wow. Those are some great ones. Well, I love that so much. I'm so glad for the return of the patron name changes and all that, so much fun, right. I'm looking forward to Friday. So much Trump trial to talk about and much more to get to with that.

And I think this new format is going to be great going forward. And we'll see how long that lasts, you know, how long this trial lasts and if it makes sense. Thanks so much for listening, everybody. If you'd like to support the show, patreon.com/law. Matt and I have landed on a lot of movies for this month, and it is going to be glorious. I cannot wait. So, reasons to get on that Patreon. Thanks.

1:03:09 Thomas: Matt, we'll see everybody on Friday.

1:03:08 Matt: Sure later see you soon for

1:03:11 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

1:03:28 Thomas: Objection. No, he's not.