Liz Warren's CFPB Saved By... Originalism?

Transcript

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

0:00:44 Thomas: And welcome to Opening Arguments. This is episode 1033. I'm your host Thomas Smith. That over there is a real-life attorney, Matt Cameron. How you doing, Matt?

0:00:52 Matt: Thomas, I'm having a much better day than Todd Blanche from what I can see from the coverage of today. Trump attorney Todd Blanche is not doing too well on cross of Michael Cohen, and we don't have the transcript yet, but just from what I'm reading.

0:01:04 Thomas: Doesn't seem good. It does not seem like he's doing a good job from the coverage.

0:01:08 Matt: Was thinking about this actually, and of course we're going to talk in a lot of detail about this on Gavel Gavel. I don't want to get into it too much, but there's strange thing going on, especially with the Cohen testimony, because you've got Susan Hoffinger on one side who was was a defense attorney for 20 years and is now a prosecutor for the last couple. Then you've got Todd Blanche on the other side, who has been a defense attorney for I think zero years.

This is his first or second trial, I think, as a defense attorney. And it's very interesting to watch a former prosecutor doing cross and a former defense attorney doing direct. It's really interesting, like reading through the way that Susan Hoffinger set it all up in Cohen's testimony the other day. I think they made it very hard for Blanche to cross. I mean, he's not that great at it anyway.

But I to tell you, and again, we're not going to spoil anything from Gabble Gabble, but I have tell you about how he opened his cross, because it is going to be legendary. It's going to something people will be talking about for 100 years from

0:02:00 Matt: Now, I'm sure of it.

0:01:58 Thomas: Well, will be the law school like lesson of don't do this. Well, we will leave that as a teaser because we've got not only a few announcements and updates and then we'll take our usually scheduled break, so looking for that after the break.

I will say, so regarding Gavel Gavel updates for folks, um, you're listening to this right now, five two, that was, it was actually a pretty big day, there's a lot of testimony to cover, uh, 2nd we'll be out on the Gavel Gabble Patreon feed, so that's patreon.com/gavelpod, and I do want to remind everyone one more time, we are still working on getting the old ones ready so that all of it. It will be on the, like a public feed, still working on that.

It's every intention of doing that a hundred percent. It will Be, it's not just a paid like podcast only. We're still working on like getting that put together. So that'll be out eventually. If you want to hear the Trump trial coverage right now, you've got two days now that will be up on the patreon.com/gavelpod. And very quickly, now that I've gotten the process figured out, I figured out how I want to do this, these readings.

Things I've got the, like the actors on call now after a lot of experimentation, uh, I've got that worked out and we're already going to be ready with, um, what six that may 7th and like the next couple of days after that, we'll be good to go. So little we've been figuring out how to do that, but we are going to Be up and running and Matt, there's not that much of this trial left. So we have big plans for the future. I can't wait. Wait.

With those announcements aside, we will pause for a quick break. Again, you don't want to hear ads, go to patreon.com/law. And we will get to how not to start some cross-examination after that.

0:02:03 Matt: Yes. As

0:03:36 Thomas: I don't know if you know this, I have this other podcast, Gavel Gavel, that I don'T want you to spoil from. So no, you can't do too much. But you've been dying to talk about this. I don't blame you. How do you not start a cross-examination?

0:03:48 Matt: Think this is just a little amuse-douche for Gabble Gabble. Just a little taste. Because obviously we're going to to be talking about Michael Cohen, I'm sure, for at least two episodes because his testimony is the most important testimony in this case, no doubt.

0:03:51 Thomas: Oh, my God. I'm so sorry. I, forgot. I Eli Bosnick has promised me he will read Michael Cohen, so I'm just letting everybody know that will be a lot of fun. You don't want to miss that on Gavel Gavel. But we are a few days away from that, obviously, at least because of the transcript delay and and the other backlog, but just so you know, you might want to go hear that. That's going to be a lot of fun. All right, go ahead. Sorry.

0:04:04 Matt: Oh, sweet.

0:04:18 Matt: Will be fun. Todd Blanche starts his cross-examination of Michael Cohen in front of the jury by that he and Michael Cohen have never met before, but you know who I am. And like, again, who cares, right?

0:04:29 Thomas: Yeah. What is that? Okay.

0:04:31 Matt: Why? Okay, it gets better. And Blanch says, as a matter of fact, on April 23rd, so after the trial started in this case, you went on TikTok and called me a crying little shit, didn't you? That's how he opened it. And Michael Cohen says, yeah, sounds like something I'd say.

0:04:43 Thomas: Yeah, yes. What is, what is the best case scenario? I know, look, I know this guy doesn't seem great, but there has to be something he's trying to do, right? What the, what does he trying to do in his mind?

0:04:52 Matt: And he's trying to make Cohen look like a jerk, I think. But he mostly just makes himself look like a jerk because he gets called up to the bench. And the judge literally asks him, why are you making this about yourself? What's going on here? He has to explain himself about why he started.

0:05:11 Thomas: I bet you think this trial is about you, don't you?

0:05:16 Matt: Incredible. I actually put up a poll, which is still open as of now on Twitter, on the Opening Arguments Twitter account, asking what people think is the most likely explanation. For this absurd opening.

0:05:24 Thomas: Oh, I love that. Oh, I don't think we've told the show that. Matt is now managing the OA Twitter. Now that there's not a complicated series of bullshit things about who can do what, Matt is managing that. Has been fantastic, by the way, on OA Twitter, so hey, if you're on X, I guess, it's called, go follow at OpenArgs.

0:05:38 Matt: A lot of fun. When I was walking away from Twitter, this is what happens. But your options for the poll were, he is bad at law.

0:05:45 Thomas: They pull me back in, yeah. Okay.

0:05:50 Matt: Everyone is like this now, which I think that's a strong contender.

0:05:51 Thomas: Hmm. I like that.

0:05:53 Matt: He is playing 6D chess. That's currently the loser. The winner is, why not at this point?

0:06:00 Thomas: Now, question. Did you come up with those answers, or are those the ones? Oh, okay. Okay. It wasn't like the crowd submitted and then vote. Okay. Those are all great options, by the way. I commend you on coming up with are the probably would vote everyone because is like, I like that one because everyone, that might be my favorite.

0:06:02 Matt: Yes. Those are my answers. No. Those those are your choices. Yeah. Yeah, we're just obsessed with social media, and we live our lives on social media. And the first thing you think of when you see this witness is your social media beef. In the most important witness, in the most importante criminal trial that's probably happened in our lifetimes, this is how you start your cross.

0:06:15 Thomas: Yeah.

0:06:28 Matt: It's incredible.

0:06:27 Thomas: Yeah. And well, here's the other thing. And again, we will get into the full analysis on Gavel Gavel, but like, if there's one thing we know that nobody disagrees with, it's that Michael Cohen is an asshole. So if your whole goal is like, I know what I'm going to lead off with, very important moment. And correct me if I'm wrong, as a trial attorney, like long trials like this, there's going to be waxing and waning of attention, I think, by the jurors. When you first open up with some cross, that's got to be a time when everyone's kind of dialed in, right?

0:06:40 Matt: Yes.

0:06:57 Matt: First impressions, they really matter. And Michael Cohen, from what I've been reading, he's actually captivating the jury. His direct, they were really locked in watching him. They seem to be, just from what, what I've heard, I'm not there, but it seems like he's been a very good witness for the prosecution and the prosecution has set this up beautifully, set up his testimony because everything he said on direct is something that somebody else has already said in this trial, so even if you don't think he's very credible, it's all there, there's documentary evidence of everything he's saying it's going to be great, yeah.

0:06:58 Thomas: Yeah. Hmm. Right. Oh, I cannot, I can't wait to get into this and so My

0:07:21 Matt: Yeah. We should save it

0:07:22 Thomas: Point is you've got that prime real estate in terms of trial time and you're like, I know what I'll do, I'll make my, I'll involve myself and I'll establish that Michael Cohen kind of sucks. It's like, dude, everybody already thinks that, that's the one thing you don't need to do.

0:07:23 Matt: Yeah. A Parade of witnesses have told us this, yeah, who know him, you don't know him, yeah.

0:07:42 Thomas: And he probably deserved it. No, I'm just kidding. Uh, so wow, that's really bad. Um, is there anything else from the trial you want to update us on?

0:07:46 Matt: Uh, The uh gag order was upheld, uh, the other day on the 14th. The appeal court came back unanimously and said this was perfectly fine. And they essentially just copied and pasted the reasoning from the federal gag order that's in place from the DC case. They thought it was just fine.

0:07:53 Thomas: Hmm.

0:08:03 Thomas: Yes, this man does, in fact, need to shut the F up. Like, we all... Hear, hear. Be it resolved. Yeah.

0:08:07 Matt: In multiple jurisdictions, like it's,

0:08:12 Thomas: Shut up.

0:08:12 Matt: But they also, a very short decision, we'll post it, but they opened the decision by noting the things he wants to do, the reasons he's bringing the challenge. One, responding to purported attacks, quote unquote, from Michael Cohen and Stephanie Clifford. Two, that this limited his ability to make public statements about senior prosecutor Matthew Colangelo. And three, limited hisability to make pubic statements about Justice Mershon's daughter. Like, again, what are you doing? Why are you wasting this time?

0:08:36 Thomas: We all have a First Amendment right, Matt, to harass a judge's daughter? Question mark? Yeah,

0:08:42 Matt: Know, it's very important for our defense in our criminal case. And of course, just this morning, excuse Donald Trump got up and almost certainly violated the gag order once again. We can hear that right now.

0:08:44 Thomas: Yeah. Jeez. All right, I can't wait. If it's anything like the clip I got to hear on Gavel Gavel the other day, uh

0:08:56 Clip: This person from the DOJ is running the trial. So, Biden's office is running this trial. This trial is a scam and it's a sham and it shouldn't happen. Thank you very much.

0:09:08 Matt: So that is directed at Matthew Colangelo, which is the one thing, again, that specifically he was asking the appeals court if he could do. And he's saying, look, you got somebody from DOJ, former DOJ obviously. It's not current DOJ on loan from Biden. That is not how this works.

0:09:21 Thomas: What? Okay.

0:09:23 Matt: But he's commenting directly on one of the the prosecutors. And arguably, it's a violation because with the intent to materially interfere with causes or to materally interfere with, et cetera, etetera. Jim Jordan said something almost identical about Colangelo yesterday. So obviously this is in the pipeline. Who knows?

0:09:23 Thomas: Yeah.

0:09:40 Thomas: Just I mean, as much as it's stupid, uh, Jordan's not on trial so he can say that, I think, even though he shouldn't

0:09:47 Matt: Unless he's doing it at Trump's order, right? So he's making or directing others to make public statements. And if there's, you know, right.

0:09:47 Thomas: Oh. Right, right, right. But Even still Trump would be the one to get in trouble for that, it's not like Jim Jordan, yeah. So he he can kind of do that, but but yeah, like maybe leave it to your cronies to make these statements, dude, right?

0:09:55 Matt: Yes, of course. Sadly, there's no way to gag Tag Jim Jordan. Yeah. It turns out that Trump might actually be telling his cronies what to say. There's a witness in court.

0:10:07 Thomas: No way. That's not how cronys work in my mind.

0:10:10 Matt: Yeah, no, you just give them free agency, right? They don't need a script. But New York Magazine's Andrew Rice says he witnessed the defendant actually editing a statement. Was looking over his shoulder and he said he was going through and annotating and editing quotes. So that seems like a problem.

0:10:12 Thomas: Yeah.

0:10:26 Thomas: That is very interesting because, well, call that person as a witness in In these gag order parts ofthe trial now? Like, I mean, this person, first off, I really hope he's not bullshitting us on that. Like, let's assume he's Not. It's pretty believable to me. What do we or is it just going to be that the state just references that like news article or something and says, hey, this person said Trump did this for

0:10:33 Matt: Yeah, sure.

0:10:50 Matt: I think that might be enough. And they could offer to call him, but I mean, it doesn't take that much. Mean they might want to hear this testimony. The trial is almost over, but there's still plenty of opportunity for the prosecution to call this up and have another contempt hearing.

0:11:00 Thomas: Mean, that have does implications for the like, hey, you're going to to jail or whatever, like gag jail. I mean.

0:11:07 Matt: Definitely not supposed to be doing that, no question.

0:11:08 Thomas: Yeah. Interesting. I just wonder, like for that journalist, is could happen by kind don't want to say inserting himself into it. But, he genuinely saw it, he saw it. Like, that'd be interesting to go from covering this to like, uh, I could testify about this.

0:11:21 Matt: I'm a witness, yeah. That is funny, yeah. This Uh, Yeah, this trial just keeps giving so much good stuff.

0:11:22 Thomas: Yeah. Right. I mean, that could happen. Very interesting. What an asshole. He's such an asshole. I love when you're giving Jim Jordan notes on like, you're not being asshole enough. I know. And he's like, me? Really? No one has ever told me that before. Like I've, that's okay. All right. I'll take your notes. You are the king of assholes. I don't know.

0:11:27 Matt: All right.

0:11:43 Matt: Have Could be worse. Soon, all right, see. So the trial's about to wrap, I think, because the probably doesn't have any more witnesses from what I've seen. And the defense has kind of hedged about whether they're going to have witnesses. There's possibly one expert that they're gonna call. And of course, Blanche was kind of equivocating about whether or not his client may actually testify. And, of course we're all hoping, desperately hoping, that Donald Trump will testify. That would be as much fun as we could have this year, probably.

0:12:00 Thomas: Yeah yeah Yeah. This is something I keep seeing, Matt. And I want to, this is a good, time good to ask you about it. I think I saw that where it's like, well, it's almost over because the prosecution's almost done. And then I was like, wait, what? They're going to, with all, I mean, how normal is that? Maybe it's just like how it works and I don't know, but I would have thought in the biggest case ever with a million dollar attorneys and the blah, blah, I would've thought there'd be a long elaborate defense trying to just make things annoying and confusing, at least trying to do something. But it seems to be the conventional wisdom that But it's just like, no, they're just going to say like, ah, all that. OK, we rest our case. Why is that? What the heck's going on there?

0:12:40 Matt: Of course, in any criminal trial, you have the absolute right as the defense not to put on a case if you don't want to. If you think the prosecution's case is just something you can pull apart in your closing, you can do that. But if you're going to put on witnesses, you better make it worth your while. And I can't really think of any witnesses that would come on and can think of many witnesses who would directly contradict a lot of the things that have been said, because so many different people have said that these things happened. The defense team has really boxed itself in by denying that, to deny, taking Trump's line that he ever touched Stormy Daniels, right? And that's a huge credibility issue to begin with. So, you know, who knows? But bad, right.

0:12:44 Thomas: Mm hmm.

0:13:11 Thomas: When you put it like that, I now that I think about it, I couldn't think of what they should do. I just assumed it was like, oh, we'll get a bunch of dumb, annoying, like expert, whatever, blah, blah, but yeah, like what could they even argue? It's kind of hard.

0:13:24 Matt: Yeah. I mean, from what I understand, Alan Weisselberg might've been one of the only people that they could have brought in, but he's just been convicted of perjury twice and he's in Rikers now. So that's not a good look.

0:13:35 Matt: So yeah, I don't know, uh, we will see, but uh, you know, let's uh set our intentions and hope that Donald Trump testifies. I know it's not going to happen, but what a day that would be, yeah.

0:13:42 Thomas: Oh, Oh, now, if that happens, we go from things about wrapped up to. Oh, my God. We've got to cover this for a year. I can't wait. That'll be incredible.

0:13:52 Matt: We'll see.

0:13:52 Thomas: He won't do it. There's no way. There's right, well, that's it for the Trump trial updates. And just one more time, if you'd like to hear more, the May 3rd transcripts are up over the episode and analysis are up. Over on Gavelpot, that is patreon.com/ gavelpot and plenty more to come. And pretty soon that will all be public. I promise, promise, and I can't wait for that. That being said, I think we have non-Trump stuff to talk about.

0:13:52 Matt: We'll Mercifully, yes, I'm very excited to talk about non-Trump stuff. Uh, one of the, we're going to to talk about two different stories that I think are worth talking about. One of them is a Supreme Court decision that came out the day that we're recording, the other that I want to start with is a event that the Seattle Times has called Three Bob Night, which a bonus to that editor. That is fantastic.

0:14:33 Thomas: Love it, love it.

0:14:34 Matt: I love a good headline.

0:14:34 Thomas: Boy, Three Bob Night, reference that's that not as many people get these days. Grew up on oldies, though, so I'll always appreciate that.

0:14:40 Matt: But you know, you got a story about three bobs and it plays, it works. It's a weird time to be named Bob Ferguson in Washington State. This This is a story that hasn't really made a lot of national news, but a listener sent to me and said, we got to talk about this. And after I got kind of obsessed after reading about it, we do have to talk about this because it's a funny story, but it's also deeply serious.

0:14:43 Thomas: Yeah. Wow.

0:14:59 Matt: And it has real implications for democracy in this country if they start pulling stuff like this. So the Got to watch those Bobs. So Bob Ferguson is the attorney general of Washington state. He's running for governor in a crowded primary field. And last week, two Bob Fergusons filed papers to run in the primaries for governor. That's kind of weird to start with. And a conservative activist named Glenn Morgan came forward and said that he was running both of their campaigns and he had paid their filing fees because you basically just have to pay $2 ,000 in filing fees and you're on the ballot, apparently. Really not that hard in Washington from what I can tell. A pretty nutty field of candidates, including including somebody from the, I think the Congress Sucks Party, which, boyce of the Congress Sex Party is running für a House seat in Washington's 10th congressional district. Congress

0:15:05 Thomas: Bobs of the world?

0:15:42 Thomas: Too like to run for things things that I think suck.

0:15:46 Matt: Sucks so much I want to be There, send me in, uh, anyway. So yes, three Bob Fergusons were briefly on the ballot, and through the luck of the draw, the original Bob Fergusson was going to be 13th on the bullet and the other two were going to to be two and three. So You can see the problem, yes.

0:15:47 Thomas: Yeah. Oh man. So I have to point out what everyone will be thinking, except Matt, who hasn't watched Fargo. This happened in the latest season of Fargo is this crazy that I like, it has to be related to that. There's no way it's not like they must've seen that. Like, like it literally is this exact thing, but in the, in that season, which was fantastic, that was a man. It was a good season. I, I, uh, I'm sure like, I saw a lot of buzz about it. I figure almost everyone's already watched it, but if you haven't, the latest Fargo season, this exact thing happens.

0:16:28 Matt: Actually, I watched that clip that Lydia sent, and, uh, it is, it's a sheriff's race where three different people show up with the same name, wearing the same outfit, and Try To debate on stage It's Great

0:16:35 Thomas: Yeah, that's for a debate, but this is just for the ballot, right?

0:16:37 Matt: Right Right, um, of funny, it's funny troll, um, this conservative activist who hates Bob Ferguson so much he just doesn't want to be governor, and he wanted to dilute the field, but it turns out, uh, he knew it or not, that is a crime to run for office in Washington state with a similar name with the intention to benefit from someone else's reputation. So let's hear Bob Ferguson talk about how he might have no choice but to prosecute two other people named Bob Ferguson.

0:16:48 Thomas: Ooh, okay.

0:17:01 Clip: Cease and desist letters were hand-delivered to the homes of the two other Robert Fergusons yesterday, urging them to withdraw by the deadline today, 5 o'clock. Dan mentioned that deadline. There is still time for these two individuals to do the right thing. I agree with Dan that these two individuals must have received phenomenally bad advice to engage in this activity, are, as Dan said, facing significant criminal and civil jeopardy. I agree that, Dan, I suspect they did not know about the legal implications of their action when they gave Glenn Morgan permission to file their names for office. But now they know. The good news is, state law contemplates the possibility to withdraw your name after you file. And that deadline is today at 5 o'clock.

0:17:46 Clip: If they do not withdraw by 5 o 'clock today, they may not have the opportunity to withdraw later, even to avoid criminal prosecution. I want to be very clear about this next point. I do not want these two individuals to be prosecuted. I hold no ill will to these two individual. I really don't.

0:18:01 Thomas: They're fellow Bobs.

0:18:03 Clip: It is my sincere hope that they recognize the seriousness of what's happened and withdraw their names by 5. And we put this whole business behind us and move on to talk about the campaign and the differences I have with them.

0:18:03 Thomas: Can't hate another Bob.

0:18:04 Matt: There you go. That's

0:18:14 Thomas: Talk about it as Bobs will move on. Yeah. Wow. So did they? I mean, I have to assume this wasn't literally today.

0:18:14 Matt: So there you go, did both withdraw their names on Monday. And Yeah, is good because it's actually very And I just want to talk about the statute, because on first glance, that sounds pretty strange, right? That it could be a crime to put yourself on the ballot under some circumstances. This was actually passed in 1943 in response to an actual thing that happened in the Seattle area when somebody with the last name of Norton ran against a popular person named Norton just to kind of benefit from the name.

0:18:20 Thomas: Oh, that that's good.

0:18:43 Matt: And just the last time in that case. But you can imagine now as someone who has, I think you have the most popular last name in America.

0:18:42 Thomas: Just the last name though. Oh, wow. Yeah.

0:18:50 Matt: Am I wrong about that? I think very likely everyone loves a Smith.

0:18:51 Thomas: Oh, yeah. You flatter me. But yeah. Yep.

0:18:57 Matt: You can imagine a scenario where two Thomas Smiths are on a ballot. Like that's not impossible to think of.

0:19:00 Thomas: Mm hmm. Don't know if you know this. There's another Thomas Smith in the OA group. And it's very confusing Because I well, I actually, I don't know if he's still there. I haven't seen him in a while. But like, he would post stuff and people would think it was me. Like, he wasn't trying to do it for any, like, he just was. And funny thing was, like, he he like, I can't remember, remember if he was a lawyer, but like he had interesting opinions, you know, and it was like, it was plausible that it was me, and people were just responding as though it was mean. I was like, how do we, what do we do about this? Like, you can't just, I mean, like, I want you to be able to participate, but we also can't have a bunch of people think I'm saying stuff that I'm not. Like, that's kind of weird.

0:19:06 Matt: Oh, sure. Yeah.

0:19:38 Thomas: Who's gonna think that's a different Thomas Smith, yeah.

0:19:38 Matt: That's a, that's a Facebook problem. There are a lot of Matt Cameron's in the world and I get emails for a lot of them because I, well, I want docs myself, but right. Yeah, I Am also that. But I've gotten to know about a lot different Matt Cameron because of my email address. Let's talk about RCW 29A.84.320, duplicate, nonexistent or untrue names. Because I took a look at a law review article that covers this subject about different attempts to regulate state ballots and what names you can use on the ballot.

And it seems to me, this might be one of the only states in which it's a crime, but it is a class B felony, which is up to 10 years in Washington state.

You file a declaration for candidacy of a nonexistent or fictitious person, the name of any person is not his or her true name, similar to that of an incumbent seeking re-election with the intent to confuse and mislead the electors by taking advantage of the public reputation of the incumbent, or a surname similar to one who has already filed for the same office and whose political reputation is widely known, with intent to confused and misled the electores by capitalizing on the public reputations, et cetera, et cetera.

So this is interesting to me, because there's a balancing of interests here. Obviously, you want people with fairly common names. Like, you know, you can imagine a situation maybe where, like, somebody is John Thomas Smith, and they want to run as Thomas Smith against a Thomas Smith. Right. And, you know, are they trying to benefit from the reputation? Are they just doing that because that's what their friends call them?

0:19:42 Thomas: Yeah. And they don't, don't realize you're the only one that's the drummer for Pearl Jam, so that's, yeah. Yeah.

0:20:59 Thomas: I think it would be pretty easy to distill the intent there, right? I you a politician with a plausible run at this or not, yeah.

0:21:02 Matt: Would think, but Are you a guy who's just been paid by a conservative activist who lives in Yakima with no political experience, Which is the case with one of these Bob Fergusons. One of them was saying he actually already always had wanted to run for something, and he was a little disappointed he had to withdraw, but I think he was just trying to save face there, because there's no way. I mean, what's what's amazing too is this guy, Glenn Morgan, is a conservative activist whose big thing is political corruption and election fraud. He's committing a felony, and he's actually, yeah,

0:21:28 Thomas: Like, His Big thing, as in he's really passionate about doing it, or right?

0:21:32 Matt: Apparently, no. He has a whole thing on his website in which he is proudly talking about all the different politicians and PACs that he's personally gone after that have been fined because they've been violating election law. And here he is blatantly violating not just regular election law, but a criminal election statute. And he actually could be criminally liable even after these people withdraw, because it's conspiracy at that point with them to do it. And, you know, he admitted he was running both of their campaigns and he clearly was doing it as a troll. And He even said publicly, I think either of these Bob Ferguson's would be better than the one that's on the ballot right now. That was his logic. The attorney general in Washington state can't actually initiate a prosecution. That would be extra strange if Bob Ferguson was in the position of being able to prosecute those Bob Fergusons.

But he was standing up in that press conference with Bob Ferguson. Standing up in the press conference and the district attorney was confirming that this is a crime and these people could be prosecuted. So this is all pretty weird, obviously. It's also Also, the only other time that I'd heard of this happening, and I started looking around, and it does happen from time to time, but the only time I'd hear of it is in Russia, where Putin stooges will run against somebody who might actually want to do some kind of democracy. And, you know, there's a particularly famous case. Three Boris Vizhnevskys were running in St. Petersburg. And the pictures, because they put pictures on the ballot, actually had the same facial hair and the same kind of hair, like, just to be extra confusing.

0:21:53 Thomas: Hmm. Yeah. Oh.

0:22:50 Thomas: Man, yeah.

0:22:50 Matt: Mean, that's a great way to destroy democracy to just, and it makes it into a Joke about facial hair. And there's a whole New York Times story about how the Russian officials manage elections with these kinds of tricks. Right. And so we do not want this to become a thing that happens the United States routinely. And it has happened before, there was actually there were criminal charges brought in Florida, there's something to do with this, I didn't look at what the statute was there, but um, you a law review article that I can post to that gets into a number of different interesting uh, of how and when names can be used. There was this case out of Louisiana, 1963, where the Supreme Court of Louisiana was looking at a married couple, still legally married but separated, and Mrs. Wilty was running against Mr. Wilty for a local position, assessor of the parish of Jefferson. A challenge here to say that she shouldn't be able to use her married name, even though they were still married, because it was too confusing.

0:22:52 Thomas: His facial hair yeah Oh.

0:23:35 Thomas: Why can't he not use his married name? No, I don't know. He should have to take her maiden name, actually. That's 1963.

0:23:38 Matt: It's totally Yeah, uh, Yeah. Or They just both get new names, yeah, no, nobody's thinking about that. The Supreme Court had to acknowledge that there's no law, there's just nothing that was on point at all, but they were determined to just not have her use

0:23:43 Thomas: Yeah. They're Like, get the air. Bud guy in here, we got to do it again.

0:23:52 Matt: Yeah. That's Right.

0:23:54 Thomas: Well, there's no law that says a dog can't run as the wife's name of the thing, yeah.

0:23:54 Matt: Just, Just kind of reached out to this provision of the Louisiana constitution, constitution about fairness in primary, primaries, even though there's no legislation around this. And they basically just said it, it wasn't fair to have a circumstance which confuses or seriously tends to confuse the voter as to the identity of the candidates. So she ended up having to use her maiden name and when they could have just had, you know, Mr. Vernon Wilty and Mrs.

0:24:14 Thomas: What ended up happening?

0:24:23 Matt: Laura Wilty, and that's, you know、 definitely

0:24:22 Thomas: I feel like that would have been pretty easy. Everyone in 1963 Louisiana would have been like, woman, no. And then, yeah.

0:24:25 Matt: Right. There's your choice. It's not a Bob Ferguson situation. That's not that confusing.

0:24:32 Thomas: No, yeah.

0:24:35 Matt: It's pretty doable. There's actually a whole bunch of different cases where people were trying to use their maiden names or married names, including one in which, yeah, it's

0:24:42 Thomas: Is there a Mrs. Bob Fergus I don't know, I don't, that means nothing. I just, yeah.

0:24:46 Matt: Just funny. There was one in Ohio where someone wanted to use McLaughlin because they wanted to have a name that Sounded more Irish. That was generally what they were trying to do, because they just thought it'd be better for the, the region, um. And most states, from what I can tell, do not have a law that's directly on point for this. And maybe they should, I don't know if it needs to be a criminal statute, but I think people should be strongly discouraged from pulling these kinds of tricks, because there's no other reason, in a case like the Bob Ferguson thing, you're only doing it to mess with the election, there is No good faith reason whatsoever, at least, you know, in the Wilty case, she genuinely wanted to run for office against her husband, I can see it, um, a whole interesting body of jurisprudence about names on ballots and when you can use a nickname, and when you can do something like, when you're running for coroner, if you can put MD after your name, because I want to know the coroner is a doctor, that's

0:24:54 Thomas: I Yeah.

0:25:30 Thomas: No kidding.

0:25:30 Matt: Important.

0:25:30 Thomas: Or if he's just a local pervert, that'd be important, he has to either put MD or comma, pervert, like I want to know which it is, just to

0:25:30 Matt: Uh, You could put that after the name, too. Known pervert. There was a guy in New York a while back who'd played a grandpa on a TV show, so he wanted to put on the ballot Grandpa Al Lewis. They wouldn't let him do that. You know, yeah, right, right. But, you know, you can see how just little things like that on a ballot can really sway things. But, just I'm happy to see that there's only one Bob Ferguson running. I don't know anything about Washington state electoral politics, I assume, from what I'm seeing. He's probably perfectly fine as governor. I do wish him luck now that he's the only Bob Ferguson in the race.

0:25:51 Thomas: Get that reputation in, like, Trump would want to put, like, successful Successful businessman, Donald Trump. I was rooting for one of the other ones. Oh, well, have to agree to disagree.

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More time, drinktrade.com slash OA Right, Matt. So, I am told you this is, I have been, my head has been to the grind, to grind podcast, trying to get Gavel Gavel going. You said there's a Supreme Court decision out today as we're speaking and it wasn't bad.

0:29:19 Matt: Was not. And it was actually shooting down the Fifth Circuit in one of their absolutely, absolutely insane decisions. It was actually written by Clarence Thomas. We have come out the other side of the looking glass. All kinds of interesting things about this. Now, you would not think on its face when I tell you what I'm about to tell you that this would be a very interesting or worthwhile case, but it is payday lenders challenging the existence of the Consumer Financial Protection Bureau, which was set up in 2010.

0:29:42 Thomas: No, I would think that's an interesting case because that sounds pretty important to me.

0:29:45 Matt: It's very administrative, but yes, it is important. We do want the CFPB to exist. That was the idea of Harvard Law Professor Professor Elizabeth Warren, back when she was doing that, she came up with this thing.

0:29:49 Thomas: Yeah. Certified hottie And Harvard, my perennial pick for president forever. Until you, until she leaves us, I will always wish she was the president, at least once. Drug

0:30:03 Matt: I'm very proud that she's our senator. I have to say, I don't want her to leave. There, so 2010, the CFPB was established to kind of clean up after, you know, everything that happened in 2007, 2008, we can all remember, to try to see if maybe we could have things like that not happen again. And the agency was designed to be as independent as possible, because obviously you don't want Congress and you don't want the president to be able to mess with something that is regulating the finances, because everybody knows that's very corruptible. So they purposely set up the director to have a term longer than the president, and they set it up so it's funded with, uh, on securities, the Same Way, yeah, yeah.

0:30:34 Thomas: Money, actually? No? Money, it's the only legal funding it can have. Hmm.

0:30:38 Matt: The Federal Reserve is funded a similar way, and Elizabeth Perliger at argument actually said there are about 400 agencies historically that have been funded with some version of this, where it's not a direct appropriation from Congress, but they have some other scheme. In fact, U.S. Citizenship and Immigration Services that I deal with all the time is funded, I think, at this point, 97% or 98% by filing fees that are paid by the immigrants. And I can tell you, those are extremely high filing fees, thousands and thousands of dollars. Yeah, no, I mean, it used to be naturalization was $5 because we thought it was a service. We thought people should naturalize. Like, within our lifetimes, it was $4 to file a naturalization petition, and it is now $975, which is a lot of money for some people.

0:30:58 Thomas: God. That Makes me sick. Wow.

0:31:14 Thomas: Yeah. I'm sorry, ma'am, we need to be able to fund the jackbooted thugs that are gonna do, violate your human rights, so. So,

0:31:15 Matt: Yes. They actually were sharing money illegally with ICE for a little while during the Trump administration. I mean, it's, yeah. Now, USCIS is not the worst of the agencies, but really, they are a public service. It's necessary in the same is necessary, right? You have to have these agencies, and we don't pay the full cost of our driver's licenses at the DMV, right? If you paid the full price, it'd be hundreds of dollars. Anyway, that's just a a little personal thing with immigration, obviously, but that's just an example of one agency in the government that is not paid for directly by Congress. And so when there's a government shutdown, it doesn't shut down.

0:31:33 Thomas: Sure. Right.

0:31:44 Matt: So the argument here from the payday lenders, and of course, the pay day lenders are some of the most predatory people in the country, obviously. I mean, this is not a good industry. It's not something you want to represent.

0:31:51 Thomas: Yeah. I assumed their argument was just a series of demonic noises because they're like, just like these devils that worship at the altar of money where they like, your honor.

0:32:03 Matt: Yeah, I mean... Yeah.

0:32:05 Thomas: You know, like that was their argument. And they're, like, it makes a good point.

0:32:09 Matt: They did manage to send the lawyer who did not talk like that to the Supreme Court. But yeah, but I have to agree.

0:32:14 Thomas: Yeah. But the demon was whispering to. Yeah. Yeah, I think he's saying, I love the shine of money, the smell of money. I think poor people shouldn't be allowed to have money. Yeah. So maybe that's how they did it.

0:32:23 Matt: Well, The thing they were challenging, I mean, this is almost like Onion-level parody, because the thing that they were so mad about was a rule that doesn't let them continue to try to withdraw from somebody's account after it fails and charge fees for it.

0:32:41 Thomas: Oh, come on.

0:32:43 Matt: And they were doing like 11 times a day, they were trying to withdraw from accounts that had ever been withdrawn, and then tacking out another fee for that. And this is already on top of a predatory loan. And this is exactly...

0:32:46 Thomas: Oh my God. Come on. I stand by my joke on these demonic noises. I know that might be a little over the Top, but it's, it's close. That's not that much different from saying I love money. You know, know it's the same thing, come on.

0:32:54 Matt: Oh, no. It's not even a joke.

0:33:03 Thomas: Man. 11 times in a day, are you serious, what

0:33:03 Matt: Yeah, no, absolutely. And this is what they were fighting for. This is what they retained Jones Day to do. Big Supreme Court litigators, generally pretty conservative. This failed in eight different federal circuits, this argument. So what they did is that just to challenge this rule, just to change this one rule, they took this to all these different circuits. They tried to get all these things in front of judges. And at the end of the day, their sort of fallback argument was, well, this entire agency is out of line because it's not funded through the appropriations clause of the Constitution. It's funded through this other thing, and Congress didn't directly give them the money, so it doesn't count, and it shouldn't exist. And nobody was taking this seriously until it got to the Fifth Circuit, when three Trump-appointed judges thought this was perfectly fine. They shot down all the other arguments. They said the rule basically was fine. But they said in the beginning that one of these arrows has hit its target. That's actually how they phrased it. And they got into some light originalism.

And this, they talked about sort of around the time, and they came up with, as you can always do with originalism, their own version of history, and decided that Congress, in fact, was not supposed to be setting up these kinds of schemes, even though, well, as we'll talk about, there's a completely different originalist view of this, there are several different originalists views of this.

Was an appalling decision from the Fifth Circuit for multiple reasons, but finding that Congress can't appropriate this way, that when they essentially set up a statutory scheme that appropriates through some other means, finding that that is illegal, would be a huge blow to the federal government and its ability to work and operate. And I saw some analysts saying that it would actually potentially cause a financial crisis, because you'd pretty much vitiate so much of this regulation that's keeping us on track right now. Know, so this is a big deal, high-stakes case. There's... there's a lot going on here.

0:33:21 Thomas: Oh, Come on.

0:34:42 Thomas: I think maybe you tipped us off when you said it would also threaten, would threaten, like the immigration agency. Because I think that now, I now, I get it now, I guess why the assholes would agree with us on this one, like, am I being too cynical, what do you think, right?

0:34:47 Matt: Right. It actually didn't come up. I don't know if it came up at Oregon, but it didn't came up in the decisions.

0:34:58 Thomas: Well, but I mean, in terms of their, you know, their motivation on the court, yep.

0:35:01 Matt: Yeah, oh, no. And obviously, you're talking about, I mean, I mean, one of the dissenters in this case was Gorsuch, and he just hates the federal government. He just wants it to be. And I understand. I have my own beef with the federal government. But I also don't want to destroy Social Security and Medicare, which are funded by a specific tax, not by appropriations from Congress.

0:35:16 Thomas: So This is a ludicrous argument, this is like they could only find one circuit to buy into it, and it was the worst idiot circuit that shouldn't even exist, you

0:35:19 Matt: Yes. Three Trump appointees. Yeah. And want to know how bad this was. John Roberts had Clarence Thomas write this opinion. It's a 26-page majority opinion from Clarence Thomas. And it is an originalist opinion up and down. It is just a lot of originalism. And this entire thing, and I haven't had the chance to read it very closely. I've read it, but I want to get into the original stuff because I think it's actually pretty interesting, but not today. Um, what's amazing about this is that the majority opinion, the Kagan concurrence, and the Alito dissent are all originalist arguments, which is very annoying to see I do, and honestly the only sane person in this conversation was Ketanji Brown Jackson, who filed like a one-page concurrence saying, we don't need to talk about any of this, Congress is allowed to set this up, this is completely normal, I would stop my analysis there, the Constitution allows this, like literally one page, yeah.

0:35:56 Thomas: Hate to see it and She's the one who like brands herself a little bit as like the the leftist originalist and she was like, hey, we don't need to do any of that here, that's, this is so dumb, we don't even have to do that fake thing where we pretend originalism makes sense, you don't have to, except

0:36:17 Matt: The Lefty originalist. Yeah, but She Yeah. She said between the constitutional, like the direct statement in the Constitution, and the fact that it's a basic separation of powers issue, that we don't regulate financial stuff, it's up to Congress, they know how to do these things, they know how to fund things, we're not here to tell Congress how to fund things, let's get, stay out of it, that makes sense to me, that could have been the entire opinion, it could have two pages and saved me a lot of reading, instead Clarence Thomas goes goes through a lengthy analysis about what was going on, you know, of course, at the time when they wrote the Constitution and what the first Congress thought about the Appropriations Clause and how it was supposed to work, and goes on and on and decides that this is perfectly fine. And as Kagan says in her concurrence, this actually would have been acceptable at any point in American history.

0:37:05 Thomas: A few years in the future, after Trump wins, by the way, but didn't count, future, just any time in the past, okay, yeah, oh.

0:37:11 Matt: Actually, I meant to mention Trump appointed Mick Mulvaney to be be the head of the CFPB. And Mick Mulvaney specifically wanted to destroy it. That was one of his missions.

0:37:15 Thomas: God. I forgot about that I hope

0:37:20 Matt: Destroy You it just by doing that, just by having somebody in charge that doesn't want to do it.

0:37:23 Thomas: They hosed that thing down after he was done, took

0:37:27 Matt: So this is, I guess, one of the reasons. There are a number of reasons I want to talk about this decision today. But the fact that you've got... It just really brings out... I know that nobody listening to this really needs to be convinced. You certainly don't need to be convinced that originalism is a bad joke. But the fact that you have Clarence Thomas acting as an originalist here, you have Elena Kagan acting as originalist, and even kind of drawing from the Dobbs kind of thing by saying this is a continuing tradition in our nation's history, and that this is something that always would have been done. Don't have to go there. You

0:37:50 Thomas: You know what? All the worst things in our history have been a continuing tradition of our nation's history. That's all the slavery, everything, anything. Those are all the worst things. Doesn't mean like it's always bad, but that's absolutely not a justification for something.

0:38:00 Matt: Yeah, that's true. Yeah. Suppression, and of course, letting corporations run everything. Those are continuing traditions.

0:38:10 Thomas: Oh yeah. Poll taxes. Yeah. All kinds of stuff. Long tradition. Segregation. Would would you overrule segregation in under that paradigm? Well, well, we've always done it. So I guess that's just me getting heated by originalism. Sorry.

0:38:12 Matt: Sure. Yeah. Yeah, no. But of the originalist argument for Brown has always been difficult. Oh, you can get more heated if you want. I'm I know. And, well, honestly, I don't understand. And Kagan is joined by Sotomayor, Kavanaugh, and Barrett on this, and maybe that's how she got them, Kavanaugh and Barrett, to loop in here. But they could have joined the Thomas one. Maybe they just thought it was too much. Who knows? The Alito-Gorsuch dissent is also an originalist dissent, and it goes back to the 17th century because Alito decides that Thomas is only looking at the colonies in the First Congress, but he should have been looking at what the colonies and First Congress were thinking about from parliamentary history in England. Like, this is, this is what happens, this is

0:38:28 Thomas: I just hate it so much.

0:39:00 Matt: The joke, no, this is a terrible way to make law and to make judicial decisions. We already knew this, but just to really bring it out. And this is huge stakes, this is not a small case. This is something that potentially could reshape the federal government and destroy major parts of it, and they're just messing around with these dumbass like historian arguments. And the fact that you've got three different originalist takes that are all different. I mean, Kagan is saying she completely agrees with Thomas, but also she's adding this. The fact that the majority and the dissent are both originalists and they are coming out on different sides, I just

0:39:00 Thomas: Is not serious.

0:39:10 Thomas: Yeah.

0:39:33 Thomas: Sucks. What really worries me is that the side of the court, to the degree it can be called that, is really not doing a good job with this kind of thing, because, and correct me if I'm wrong, but just I feels like appeasement, which never works. Like, we're not going to appease our way into winning decisions that are at all important, that you we wouldn't have otherwise won. Like, it's just not, that's not going to happen. And even if you could think of one marginal case where, like, well, because you've laid the groundwork of accepting this bullshit type of jurisprudence that invalid is and stupid, that will win us what? What will that get us? I really wish, tell me if I'm wrong, man. I really wish that the three remaining sane justices would just write stuff as though they're hostages in a building that no one can get to.

0:40:23 Thomas: It's day 538. They're still deciding stuff based on the ghosts of Thomas Jefferson's speaking to them in their dreams. We don't know how much food we still have, but please, please send help. This should not be how any of this works. Please. Please.

0:40:41 Matt: The way down the left side of the decision and you can see the message spelled out.

0:40:45 Thomas: Yeah, we've bolded the first letter of every sentence that says help, help. Yeah. No, like, it doesn't, there's, I just wish, can we get, well, it'll never happen. Can we get a Supreme Court justice in there that hates the Supreme Court, that just is like, understands that this is kind of bullshit? We really do, because I think they're all doing this out of a sense of like, well the great institution, it would be worse to cost us this great institution. And I allow for some of that. Like, we do need our institutions. But when it's gotten to this point, we're not winning anything. We're not gaining anything by doing this. We're only losing stuff.

0:41:19 Matt: Not we're playing a stupid game, it's a game that doesn't need to exist that we should stop playing, um, a name apparently that you play when you're done with checkers in Russia that I think about a lot where you just start basically chucking pieces at the other person I think about that a lot with this kind of thing that like, like, let's just play checkers, let's not play the one where we throw things at each other. I don't know, like, yeah, again, just the fact, fact that Alito in his dissent says the framers would be shocked, even horrified by the scheme.

0:41:29 Thomas: Huh. Sounds right. Yeah.

0:41:48 Matt: And then Thomas, yeah, no, right.

0:41:47 Thomas: Don't care, man. Don't cares. You know what else would shock them? Women and black people voting. They would probably literally shit themselves and die on the spot. I don't care. Die mad, founders. I don't care. It

0:41:56 Matt: And And the fact though, that Alido says this, and then Thomas, the person who usually joins them on most things, has a completely different take and says it would have been perfectly fine with the founders. Again, just, it really makes it seem like maybe this is all just made up. It's possible.

0:42:15 Thomas: Crazy to think how horrible Alito is, like, that is okay. Everybody on the spot, I wanted Matt included, who would you have said before this episode is your, is the worst justice? And there's a powerful argument for Thomas due to the corruption and the the RV and the jets and everything, but I just think this reminds us how certainly it is Alito. He is the dumbest, most evil intentioned person of all of them in my opinion. And the fact that there's a decision where he's like, no, we should look at what these assholes from 300 years ago did in whatever, and even Thomas is like, well, no, we probably shouldn't do that. Step too far for me

0:42:54 Matt: Yeah, taking a good joke a little little too far there, uh yeah no and yeah Coins, Thomas has his own sort of internal consistency. I've read his biography, and actually the uh the Slate podcast Slow Burn did a great season on Cornelius.

0:42:55 Thomas: Gosh so yeah Alito's the worst yeah

0:43:06 Matt: Thomas, well worth listening, Yeah, and you know, like, he, even if you disagree with him, which I certainly do, he's a complicated guy with complicated reasons for the things he believes. Alito is just a Fox News guy. I think that's really what it comes down to.

0:43:05 Thomas: I listened to that really interesting he's Just, I uh, I think you are, are giving Thomas a little too much credit. I think that revealed that he is an asshole for maybe reasons, but it doesn't matter because he's still an asshole. That was what I took away, but that's just my sentence. I don't know. Listeners, you let us know.

0:43:21 Matt: Yeah. Yes. Yeah, I mean, Clarence Thomas has a lot of life experiences that you and I can't relate to, and Alito does not. So I'm just taking it kind of benefit of the doubt on that one. Yeah, and if you want to think about reappropriation, just very quickly, I will remind everybody that Trump during his presidency just wantonly reappropriated defense funds to wall construction.

0:43:35 Thomas: Sure. Yeah. Yeah, Oh, yeah. The border wall, right?

0:43:49 Matt: And the Ninth Circuit found that was an appropriations violation. And that actually didn't, it got to the the Supreme Court. But by then, Biden had already canceled the construction, so it was moot. I don't think that was the only place where Trump was doing it. But again, if they care that much about the Appropriations Clause, I guess it's payday lenders who really care the most about it. Our biggest protectors of the Appropriations Clause.

0:44:04 Thomas: Yeah. Yeah. They just have a principled constitutional disagreement On, you know, and the thing is, the facts of the case could have gone either way, way I imagine it could have been something where like it was costing the payday lenders money but they are so dedicated to the principles of our fine Constitution that they're like, hey, we cannot abide this. Yeah, it's just stupid. Okay.

0:44:08 Matt: Yeah. Just keeping them up at night. Yeah, I will say it is good to see the Supreme Court overturning the Fifth Circuit because this is very much a Fifth Circuit season that they're in right now. They have a number of different nutty Fifth Circuit things they're looking at, of course, including Mifepristone. There is the censorship of the internet thing. There's the thing with the Biden administration communicating about disinformation on social media. There is the challenge to this SEC. There are the bump stock ban. S the thing about domestic abusers having a right to possess guns or not. Those are all Fifth Circuit cases. And those are all potentially big decisions. And I'm sure that most of them will not come down the way we would want. But

0:44:30 Thomas: Oh, Boy, I gonna say, how much do you think they are just setting us up for when they're going to be fine with one of these horrible, horrible pieces of crap?

0:45:05 Matt: It does seem like kind of a trade -off. I don't know. There's always an interesting political, the way they dole out the cases. And we're getting into Supreme Court season, of course, pretty quickly. Of June is when we really get the good stuff. We'll see. We'll see how they time them all out and how that playlist plays. Right. And then just one quick update on a case we talked about a few weeks ago, the Boeing Deferred Prosecution Agreement. We did a whole episode on it with Casey. Got really into it at the time. I didn't know that much about these things, but on May 14th, the Department of Justice sent in a letter to the judge in that case because the Deferred Prosecution Agreement expired in January, actually two days after the Alaska Airlines door incident. So that was within it.

0:45:25 Thomas: Yeah, God, Yeah, and the whole thing was like, okay, you're on a probationary period and as long as no doors fall off any flights for this length. Was that, am I remembering right? It was kind of, we were thinking like, hey, maybe this is going to really blow up in their faces.

0:45:46 Matt: Yeah, it still might. It still might now that the letter doesn't mention that specifically, but it does say that they have failed to design, implement and enforce a compliance and ethics program to detect violations of U.S. fraud law and that they Have not fulfilled their terms potentially that they're looking into it. And they're just notifying that they're still deciding how they're going to proceed, but it is actually possible that Boeing may still be facing charges, which means they would either have to structure a plea or go to trial on This.

And, you know, obviously you've got, as we talked about, the families of the victims of that Ethiopian crash are still very much engaged in this, and they feel like they've been left out because this DPA went down without their say-so. They really had nothing to do with it. So the government is kind of now trying to fix that and trying to see what they can do to talk to them. I think they might be a little more motivated to do something on this. But you might remember, listeners, that there were two mid-level employees that ended up taking the rap on this

0:45:53 Thomas: Ooh, okay.

0:46:14 Thomas: Please. Yes, please.

0:46:41 Thomas: Hmm.

0:46:41 Matt: That just were the fall guys for the whole thing when it was pretty obvious that Boeing knew. So I'd like to see that explored a little bit more.

0:46:43 Thomas: Oh, that's right. Yeah. That was a really good episode. Hey, make sure you listen to that one. That was, that was really good analysis.

0:46:51 Matt: Yeah, I enjoyed that one. Just so many loose ends that need to be pulled because the the agreement of facts that they reached, which was hammered out, obviously, closed doors, you know, with the parties during the Trump DOJ, um, know, there's so many different things that really deserve a trial if they're going to go forward on this, so many things that need to come out about who knew what and that they've just been allowed to to brush out and brush away. We'll see, we'll say if we get that or not. They still have some time to figure it out. They said that they will have a decision by next month. Excuse me. They said they'll have a decision by no later than July 7th. So we'll keep on it.

0:47:21 Thomas: Very interesting. Okay. Yeah. Well, still rooting for consequences to catch up because that was a sweetheart deal. Blow

0:47:27 Matt: Fan of consequences. Yes.

0:47:30 Clip: I just know, that you are gonna kick that bar's butt, out of here, you know, No.

0:47:35 Thomas: It is time for T3B, Thomas Takes the Bar Exam. Uh, here we go. New question. Back

0:47:41 Matt: We've got a question about some dangerous fish. Jack owns a large fish farm and keeps several different species, including a type of fish known for its aggressive behavior. Day, a group of divers enters his property without permission and is attacked by the aggressive fish resulting in injuries. The divers sued Jack under strict liability for their injuries. How will a court likely rule?

0:48:03 Matt: In favor of Jack because the divers were trespassing on his property. In favor of the divers because Jack is strictly liable for injuries caused by his dangerous animals regardless of divers trespassing. C. In favorite of Jack if he can prove that he had posted adequate warning signs about the aggressive fish. In favor of the divers, but only if they can prove that Jack was negligent in securing the area where the aggressive fish were kept.

0:48:01 Thomas: Oh, Geez, okay, this is a famous Eli Bosnick's Lava Emporium question, and I can never remember what the effing rule exactly is, but okay, let's see if I can puzzle this one out. It is a fish farm. That seems important. So it's not as though it's like just some other property and there happens to be like a giant man-eating fish there for some reason, like a Dr. Evil lair, including a type of fish known for its aggressive behavior. Okay.

Well, it is maybe something that you, reasonable person, might know about maybe? Okay. A group of divers enters his property without permission and is attacked by the aggressive fish resulting in injuries. The divers sue Jack under strict liability. And then there's that strict liability question. And now I do remember from previous questions that that just means what it says. Like, that's just strictly liable. There's no sense in which they're not. They're is going to be fully liable no matter what, under strict liability.

So, well, if they're suing under strict liability, what the heck does that mean? Does that just mean that's, I guess, what governs this in that area? Because I, so, because otherwise it's not like you can be like, hey, we're sueing, but under strict reliability, even though it's not that, we just want that. That can't be right. So okay, wow, man, that complicates it. So what's going to happen here? Again, crap.

Now I'm getting, we had that question of the lady who sabotaged the company, and it was strict liability, and strict liability meant strict liability. So if we're saying they are suing under strict liability, come on, bar exam, I don't know what that means. Does that mean they think that, okay, it's under strict. I think I have to assume that that's what will be in the jurisdiction. Like, yeah. And now I'm thinking, like, well, if it's strict liability, he's strictly liable.

So man, even though I don't think he should be, all right, favor of Jack because the divers were trespassing, that's the, that's the answer I think we all would want to be right. That's like the intuitive, like, yeah, I'm not, I're not in trouble 'cause you got into my stuff. Off. That was like some dangerous fish like that. I'm not in trouble, but I, I worry that that's not the answer. Um, I'll keep it alive just in case.

Be in favor of the divers because Jack is strictly liable for injuries caused by dangerous animals, regardless of the diver's trespassing. Well, shoot. I mean, based on that frigging strict liability question from before, I'm strongly leaning towards B, because it's just like strict liability, treason is treason, like there's that. Now that I know that, I don't know how it could not be B. Okay. C, in favor of Jack if he can prove that he posted adequate warning signs about the aggressive fish.

0:51:02 Thomas: I mean, maybe that's even more the one that you would want. Like, yeah, like, okay, he's got some dangerous fish, so you got to post signs just in case somebody wanders on to the property or something. So that's alive. D, in favor the divers, but only if they can prove Jack was negligent in securing the area where the aggressive fish were kept. Well, that complicates things because if you're suing under strict liability, did it matter if the way we got here was by his negligence?

The treason is treason rule, I don't think it matters if he was negligent, like if it really is strict liability, he's just liable for their injuries. I, I hate this. Um, ultimately going with B because I just can't wait to hear Matt try to explain himself on this one. Like, I just can't wait to hear why now strict liability isn't in fact, strict liability is, you know, how you thought that it's now not that. So my answer is going to be B. It's just a question of my second choice answer and kind of making sure I've shored this up here. He can, so C and D are kind of related in a weird way.

It's like, will they rule in favor of Jack if he can prove that he posted adequate warning signs, or will they rule in favor of the divers but only if they can prove that Jack was negligent in securing the area, um, if they can prove he was negligent, versus, yeah, I think I like C better than D because just by nature of the logic of it, like D, D would rule out other ways that they could win, you know, so like in favor of the divers but only if they were, they can PROOVE that Jack was negligent in securing the area, whereas maybe like, maybe there's other ways they could win that.

Whereas C, when it's like in favor of Jack, if he can prove he had posted adequate warning signs, I find that to be more plausibly like a thing he would need to do in order to win. I guess I'll say I'm between B and C. Well, here's what I hate about this stupid bar exam, is this a word trick of, yeah, they're suing under strict liability, but they're just wrong about how this works because if you're trespassing, then you don't get that.

Like, I don't know what that means. Like, suing unter strict liability. Liability, I, I think I'm gonna have to go with the assumption that there just is strict liability, so divers were trespassing, but I do know that there are ways that that, okay, here's what, here's what I'll say, I can eliminate A, I think, because I do know that it's not just a question of trespassing or not, like just in general in these things, I know that if your land has something that's unreasonably dangerous and you've done nothing to post notice about it, and you know, know, like you're actually, you are in trouble if someone trespasses into your land and gets injured by something that like they should, they had no way of knowing was there, and that kind of thing, I, I'm pretty certain on that.

So I think I'm pretty sure in eliminating A A and D, and think it's going to just be under strict liability, B in favor of the divers because Jack is strictly liable. I think that that's going to be what it is. It's stupid, but I'm going with B because strict liability is strict liability, until Matt explains us why it's not on Monday. So there you go.

0:53:52 Matt: Well, we will see if you sleep with the fishes on Monday.

0:53:56 Matt: And listeners, if you want to take the bait, you can go to the Facebook group, you Can go to Twitter, you can go To Reddit. Those are all options. And we'll be looking on all of those for your answers. And and see how you do.

0:54:08 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:54:17 Thomas: And there's only one thing left to do, Matt, which is to thank our Hall of Famers, our all -time greats on patreon.com/law. Matt, you know what? Been here long enough. You've passed probation. I think I'm going to let you read some Hall of Famers. It's a big step, but we love it if you would read some Hall of Fame. Go ahead.

0:54:30 Matt: All Right. Well we've got IT Coyote. We have got Christine McCants, Jay Zachary Pike, author of Workonomics and other funny books, Caveman Lawyer, Nick, Justice is a Dish Best Served with cold hamburgers, J.V. Schwartz, Nick Fish, and Audra Ponson.

0:54:47 Thomas: And thank you to Bear the Bull. I should have given you this one. Sorry. Sorry, I use a phone with a swipe keyboard and I'm even more fasterist at text. You got to fight for your right to ex parte. J Sank, E.T., David Larson, Pavel Matushkin, Terry Cannon, no relation. To the judge, it took me a second. And Carol's 10 cents on GitHub wants to be friends with the Rust programmer patron. Okay. We're going to hook some people up here. We're gonna start some relationships. No, that's awesome. Thank you so much, top patrons. And again, you can get that by pledging at the top level on patreon.com/law for at least a month. Right, Matt, what a great episode. Excited for Trump stuff over on Gavel Gavel, but also excited to be just doing classic OA over here. It's perfect. It's such a good way to do it.

0:55:36 Matt: Got to tell you, it's nice to not talk about Donald Trump for 40 minutes, at least.

0:55:39 Thomas: Love it. Right. Well, thanks so much for listening, everybody. We will see you on Monday.

0:55:44 Matt: Right.

0:55:44 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.

0:56:01 Thomas: Shut up.