We Find John Roberts' Lack of Integrity Disturbing

Transcript

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

0:00:02 Clip: Well, when the president does it, that means that it is not illegal.

0:00:18 Clip: What's my crime? I got bold? And a little negligent? Nope!

0:00:26 Clip: Bailiffs are coming to take away my will to live. Well, one count of being a bear, and one count of being an accessory to being a bare. This is a free court!

0:00:45 Thomas: And welcome to Opening Arguments. This is episode 1070. I'm your host, Thomas Smith, and that over there is real life attorney Matt Cameron. How you doing, Matt?

0:00:53 Matt: It's a beautiful day in Rhode Island, Thomas. Just hanging out, just about leaks.

0:01:00 Thomas: Yeah, good leaks or bad leaks? Personal leaks?

0:01:03 Matt: Well, it depends who you are, I guess. If you're JOhn Roberts, this is pretty bad. For the rest of us, it's pretty good.

0:01:04 Thomas: Yeah, it's true. No kidding. Also, yeah, if you're John Roberts and or a democracy, then it's pretty bad for you. If you have any democracies listening, this wasn't good for you for, but yeah, tell you, it is satisfying. I think that you and, uh, I'll give the devil his due. The previous co-host of this show has have long talked about the media giving, um, too much credit for being some sort of like centrist or some sort sort of sensible, you know, and, and they love to do it. They love, Oh, he was, he was on a decision and he didn't, you know, side with the far, far, far right of the court and he'd slightly moderated. They, for some reason, the media loves to do the feel good story of, wow, look at that moderate over there. And it's, it's just never been true ever.

0:01:34 Matt: You know what the reason is? He's the most moderate-looking person in the world. He just looks like a moderate judge. It is really hard to get that on your mind.

0:01:57 Thomas: You know, he does. Yeah. It's like, he's like when you're making a, like sports video game and it's like the default make your own character it's just like kind of yeah like a baseball game yeah yeah provided it's a white guy yeah like this is a default white guy like only thing is default white guys not very moderate though like that's the thing that's our biases you know not

0:02:07 Matt: Default white guy yeah yeah totally kind if you're a baseball player yeah yeah

0:02:20 Thomas: If you're anybody like if you yeah it's like the average white guy in this country we know the racial like of trump and like like how disproportionate it is. That's the problem. I think it's a great point.

0:02:21 Matt: That's true that's a very

0:02:32 Thomas: You made it. No, you made a great point, Matt. I know that's excellent, but it's also because one of those things where I think the like the media, know, the media were the nerds of the classroom. And I was the nerd of the class. Of course, and as they love to do a thing that's a little counterintuitive. Oh, this guy who you thought was obviously a hard right. I think George W. Bush appointee who's always been. Oh, but I know I'm a media writer person. I want to make a point that's slightly counterintuitive. What if he is actually a moderate? And it's like, yeah, but just wanting to make that rhetorical point doesn't make it true. You know, it just doesn't. And it has never been true. And I cannot wait to talk about these leaks. I have seen a lot of coverage of it, but I've been, of course, waiting for the patented opening arguments Matt Cameron take, because I'm really excited to hear your breakdown. But what else do we have in store for people today? Okay.

0:02:31 Matt: Good point yeah and you improved on that point sure sure me too well We got uh some news out of Georgia we got to talk about uh more reasons that Donald Trump might not be going to prison, and It does sound bad, but there's also 35 counts left, so I think we'll make it.

0:03:26 Thomas: That sounds bad oh phew thanks guys it's it's where you don't know that oh we've taken away two but wait what do we start with I don't Know 1100 so not great but yeah well

0:03:39 Matt: Actually 33 I'm sorry it's my math all

0:03:41 Thomas: But you're just counting the one like there's a lot of reasons he might go to prison matt so the wider yeah

0:03:44 Matt: That's That's true that was just Georgia yeah but

0:03:49 Thomas: Yeah charges were dismissed in Georgia by by our favorite uh electric cello playing judge I'm worried about what that means but uh see we'll see what matt has to say about that

0:03:57 Matt: I thought he was just getting some practice in while he's waiting on that appeal but he's still been working and

0:04:04 Thomas: He's doing his arpeggios you know he's He's doing arpeggios and dismissing counts.

0:04:09 Matt: We got a footnote of course we have to I got a fun one this week got a star wars footnote well

0:04:11 Thomas: My new favorite segment. Oh, good. So it's not murder. Thank God. Okay. Slightly more fun than murder is the bar right now.

0:04:18 Matt: Well, yeah, it's a Star Wars genocide-related footnote, but you know.

0:04:22 Thomas: So it relates to Anakin killing all the Jedi or whatever. Okay. We'll see. Well, I don't even know what that is. I'll be excited to find out with the rest of the audience. Okay. Well, that's our plan today. We got to take a quick break. Which you can avoid at patreon.com/law. Get all the goodies. We get, oh man, I have a really fun, lot awful something planned that we need to record, Matt. I'm excited for that. But find find out more about that on patreon.com/law and skip all the ads. And this break we'll back to talk about all the million things that we're going to try to cover today. So before we get to the leaks, you wanted to do a quick update on the music stuff?

0:05:03 Matt: Just a story we've been following. It just happens that it's just within the last week we've got resolution on two different lawsuits involving Trump using music. And I know that was something we talked about a few weeks ago. We got Isaac Hayes Jr. and his family taking on Trump for using Hold On, I'm Coming, which we learned in the course of this was actually co -written by Isaac HayES. And that has ended with an injunction. But it seems like that what I'm confused about, it does seem like the Trump campaign still wants to fight this. And this is one question I have about all of this stuff is just stop it. Like, don't you have enough lawyers?

0:05:36 Matt: Aren't you paying enough legal fees right now? Is entered. The campaign is days away from being over. Just be done with it. Just drop it. You know? Just concede. I

0:05:45 Thomas: I think that like there's could be a possibility that the entire Trump campaign currently is just a scheme by big law to sell more law like it to just get because it's all that's useless. You don't need that song. It's not doing anything for you. But it also could be my only other hypothesis is no one can ever tell Trump what to do. It's never been the case. You can't tell them what to do. And he might just be like, I want that song. I said, play that song, play that sound. And then they're like, well, okay, I guess we have to do it.

0:06:11 Matt: I hope. Pretty much. Spend all those legal fees. And the comment also from the Trump attorneys on this one, Ronald of Coleman the Trump campaign. Just want to read what their response to this injunction. It's so weird. We have no interest in annoying or hurting anyone. First of all, not true. It's the Trump camp. It's like what you're telling.

0:06:30 Thomas: You're both annoying and hurting me personally, constantly.

0:06:34 Matt: To mention Haitian immigrants right now.

0:06:35 Thomas: You are right. I shouldn't put myself above, but I'm really annoyed, Matt.

0:06:37 Matt: No, but I'm personally annoyed also. I'm with you. And if the Hayes family feels it hurts or annoys them, that's fine. We're not going to force the issue.

0:06:47 Thomas: What?

0:06:47 Matt: So I'm sorry you're mad, I guess, Isaac Hayes Jr.

0:06:49 Thomas: Well, but that sounds like, okay. We'll stop doing it. But you're saying they're not saying that.

0:06:54 Matt: But it doesn't seem like the suit is resolved. The injunction is there, and I don't know. Who knows? Maybe they are going to just concede next week or something. But the injunction's in place. That's the important part. As to Eddie Grant, who is suing over the use of Electric Avenue in a truly stupid video, suit has been pending for four years.

0:07:09 Matt: And as I pointed out in the episode, as I point out, this is the only case, one of the only cases, in which Donald Trump has actually been deposed. He had to go to a deposition for this case.

0:07:09 Thomas: Four years. Oh yeah, that's right.

0:07:20 Matt: It's ridiculous. Not January 6th.

0:07:21 Thomas: What a weird jeopardy or trivia thing. For Like like 50 years from now. Hey, remember horrible genocidal killer fascist Donald Trump? There was only one time the people ever got him to be in a deposition. I guess post like, you know, post a certain date because he did some old ones back in the day. Who was it? It'll be like this impossible trivia question. I don't even remember who you said. Eddie something something electric, something.

0:07:43 Matt: Eddie grant for electric avenue yeah

0:07:46 Thomas: I It'll be that guy with his electric, uh, electric Avenue song. That would have, what an interesting piece of trivia.

0:07:47 Matt: And So the the question in that one of course was whether that was fair use to put it over this dumbass video uh it was like a 55 second thing there was a cartoon with Biden on some kind of a train and there's some some kind of joke about him smelling hair and stuff. It's really just the stupidest kind of right -wing content. And obviously, Eddie Grant has every right to not want his song associated with something that stupid or with the Trump campaign at all. And it is not fair use to just put it over a thing like that. Satirizing the song, which would be fair use. They were satirizing Biden. There's also actually a really interesting issue in this one for the copyright nerds about whether the song had been properly registered, because it turns out there was some kind of mistake where they didn't register the song properly, and it wasn't registered in 1982 when it came out. It actually wasn't registered until 2002 when it was put in a Greatest Hits compilation, which I thought that was his only hit, but that would be many volumes.

0:08:36 Thomas: Now that's what I call music. Trump shouldn't be allowed to use five.

0:08:46 Matt: You know, like 50 volumes of that. Yeah, no, totally.

0:08:46 Thomas: Uh, yeah, that's so funny.

0:08:49 Matt: But this is actually some kind of precedent now because they determine that registering it for use in a Greatest Hits Compilation was fine. And that actually counts as a registration. So it was properly registered, even if it wasn't in 1982. So congratulations, Eddie Grant. It seems like it was very important to him and that's your it's your work and that's their biggest song so uh good news uh for people who don't want donald trump to use their music and I think jack white's actually the latest on board I saw a couple of days ago seven nation army apparently he's moved on to that I don't know why he thought jack white would be okay with that on top of everybody else but here are yeah

0:09:03 Thomas: Yeah, it'd be important to me too. Yeah, no kidding. Hey, everything good is not right wing. Can you just, I know I've said it before, but please, fascists, realize everyone hates you. It's not, they don't want you to use their stuff. They're all cool. You're not cool. Unless they get too old and they become not, and then, you know, Morrissey or something.

0:09:34 Matt: Ted Nugent Three Doors Down yeah right I mean like exactly Exactly. You got a couple of people. They have songs. You can draw from it.

0:09:40 Thomas: Stick to those assholes. And then that way we'll know them too. Like, I like that because the only songs you'll be able to use are the ones that the suck. And then that'll be convenient because won't be able to think like, oh, are they just using this person's song without their permission? I'll be like, no, they're they're fascist, too. I would like that.

0:09:55 Matt: Easy. That's good news. There we go. I like to start off with something nice. And let's move on to talk about something not so nice, but is actually very educational. And as you said, for good democracy, but also bad for democracy. I will say offhand that I think the Supreme Court gets too much protection just as an institution. Know way too much about what happens in the backroom negotiations in Congress. And we know know way too much about what happens in the White House sometimes, especially during the Trump years. But anything the conferencing and the discussion of cases is so locked down in the Supreme Court. It's amazing to just see something like this come out. This just doesn't happen.

0:10:27 Thomas: This is wow. Let me ask you this on Relative to the Dobbs leak. I mean, what Dobbs is pretty consequential, but this almost feels like more of a crazy thing to happen.

0:10:36 Matt: Is like two -thirds of a Dobbs. Yeah, something like that.

0:10:37 Thomas: You think? Oh, you think it's not? Not because like Here's the thing about the Dobbs leak. I'll tell you this. OK, here's my here's my case for you. Dobbs was eventually going to come out. This was never going to come out, right?

0:10:38 Matt: The Dobbs scale. Is true. That's true.

0:10:48 Thomas: So like this feels like more someone is really trying to perhaps get the word out about these assholes, these people who are not on the level.

0:10:58 Matt: Is the biggest non -decision leak in Supreme Court history. I'll put it that way. That true. You're right. Dubs was going to come out a month later, and this kind of just prepared us for the shock. But this ties in, of course, to back in March, we talked about there was a minor leak involving Alito's involvement in two of the social media cases they're looking at. And it has to be from the same people.

0:11:16 Matt: There has to be somebody who has it in for these justices or the way they're doing things right now. Was kind of an interesting, fun leak about how Alito lost two majorities just by by going too hard on things. This one, though, this tells us a lot more than exactly.

0:11:28 Thomas: How Alito lost another thing. That's why it's funny. There are a lot of people speculating about why why he had no decision. Like he had very few, I can't remember the number, but not, they're supposed to kind of even them out, right? And he had Very Few, at least among the winning side. And there was speculation as to what that meant. Did he lose a bunch of them? And it turns out, yes, but also this.

0:11:50 Matt: But he was directly, well, right after, within four days of the upside-down flag story coming out, this was reassigned. So

0:11:57 Thomas: Matt, here's one crucial detail about that. It wasn't when, you know, John Roberts, it's institutionalist um who cares about democracy and and the court and the dignity of the court did he question did he take alito off that decision when he found out about the flag thing or was it when the we flag found out About the flag thing oh

0:12:17 Matt: We know he found out three years before, but it wasn't until we found out that he got mad about it. So that does tell you a lot right there, doesn't it? Yeah. Of these things, all of these revelations are along those lines of like, it's really disappointing, right? Because here's this nice looking guy who looks like a very moderate, he looks like your uncle. And it turns Turns out he's maybe more of a MAGA freak than we thought.

0:12:19 Thomas: My god yep cool Yeah and he's good at hiding you know there was that um undercover I don't even know what you call it that that that um journalist lady who just pretended to to be like a Republican and got a legal to say that Christians, but then she, I remember she tried to get Roberts to say stuff and he was like, Oh no, I don't think that, you know? And so it's like, he's just better at hiding it, which is scarier.

0:12:58 Matt: He's smarter than Samuel Alito, no doubt, but I think maybe we are too. So I

0:13:03 Thomas: Low bar, but kind of stuff is scary. Like when people are that good at kind of, you playing it down, which he clearly is like, He's convinced a bunch of the media that he's a moderate, but anyway.

0:13:11 Matt: But you know, he is on record as spending the entire Reagan administration trying to fight the Voting Rights Act. So, you know this stuff is out there if you want to find it. Maybe we should, we should go deep on Roberts sometime. I think it might be a time, but now though, I should tell you this, this leak came and Adam Liptak, New York Times reporters. I had about this is why we can't see the memos. They were given the memos or maybe parts of the memos. And I assume maybe it's like a reality winner thing where they don't want to accidentally somehow expose the person that got them, but but their covers.

0:13:34 Thomas: Expose the Supreme Court undercover agents that they have in different countries that might get killed if we... Yeah. No, I get that. Adam Liptak, by the way, one of the worst offenders in terms of whitewashing the Supreme Court, in my opinion. So it's hope he's had some revelations by doing this.

0:13:53 Matt: I'm not totally excusing him from that in this story, honestly. There are a couple of phrases in this story, like when he talks about how the court found itself more entangled in presidential politics. No, they didn't have to take these cases the way they did.

0:14:02 Thomas: Come on. Yeah, nevermind. That guy, come one.

0:14:06 Matt: They didn't find themselves anything. They took these cases and they played them the way they did, but

0:14:10 Thomas: Lord, this Supreme Court, we find ourselves in the middle of helping Trump get away with all this crap.

0:14:16 Matt: I guess we have no choice but to help them get reelected. Here we are uh and and also just like in the next sentence talking about how the chief justice responded after finding himself in this situation like it's makes it seem like more of a reactive than proactive thing yeah I know I that's actually copied that in because I thought the phrasing was a little weird there but

0:14:25 Thomas: Come on, man. That's bad. Wow. No, that'S good. I'm glad you did. I'M so glad. Cause I, I, I was worried that I was a little bit out ahead of my skis or whatever, because I have really had a problem with when he comes on the daily, the way he just, he really whitewashes what's happening over there. And then for him to be part of this just bombshell story and bombshell leak, and then to still be doing it, you're still doing it. So to your point, who knows if like, I don't know, the intercept or some other, like some more lefty source had gotten whatever this leak is, who know what the difference in the coverage might be? I don't know, because we can't see them.

0:15:03 Matt: Yeah because should be receiving a lot more attention I think it has has gotten pretty solid coverage. I think that most of the outlets have commented on it. But it's something that people should still be talking about, which is why I want to talk about it. Let's talk about the details here, because it breaks down to three cases, three Roberts majority decisions. And it just happens to be three of your favorite cases from the last term.

0:15:23 Matt: Three of the ones I know you love the best.

0:15:23 Thomas: Favorite is doing, yeah, okay, define favorite. Like my favorite horror movie, like that kind of thing.

0:15:29 Matt: Favorite to yell about, maybe? I don't know. But we've done... You've done your share of yelling about all three of these cases. But But let's start with Colorado, because I know that's your favorite one of all time.

0:15:31 Thomas: My favorite murder. Oh, God. Remind people just because this is the ballot decision. This is where, you know, there's a part of the Constitution that literally pretty much reads Trump should not be eligible. And then these constitutionalists, these originalists, these people who care more than what the founders thought and text, they're like, well, but okay. But I know it says that specifically this guy definitely shouldn't be on the ballot. But what if he's just on the ballot, though? And then they got everybody to agree, except, well you're going to tell us exactly what went down. This case in my mind really pissed me off because it amends the Constitution. They amended the Constitution and reads out something that's pretty clear, like plain black and white to me and to a lot of people. And so what do we find out more about this with these leaks?

0:16:25 Matt: I'm going to yes and you real quick, because not only did they say that this should not be in the Constitution, they said that it's up to Congress to pass something to say that it should be inthe Constitution, even though we all read it in the 14th Amendment.

0:16:26 Thomas: Thank you. Cool. Yeah.

0:16:37 Matt: Yeah, Section 3 of the 14th Amendment is now basically null. It doesn't mean anything anymore because of this decision. So what we learned from this memo is that Roberts wanted in a unanimous and unsigned opinion, he wanted us to come back strong to Colorado. They knew when they took it, all nine of them pretty much agreed that they were going to be reversing the Colorado Supreme Court and they were gonna be sending it back and saying that the states can't control this. And he one thing we learned is he he offered to meet one -on -one with every one of the justices to talk it out, which is extremely unusual. That doesn't happen. He really wanted this one to work, but he could have had a very very short and to the point decision, which Supreme Court is not famous for anyway.

0:17:10 Matt: Because the first three or four pages of the Colorado decision were harder to argue with than a lot of the rest of it. And I remember thinking that, too, that it almost seemed like you could have just stopped at page four or whatever it was, right?

0:17:20 Thomas: Me with some of my jokes I do that then I edit out because the listeners don't hear how badly I keep it going. Yeah, that like that.

0:17:27 Matt: Right. And they have great editors. They know how to edit things. They know what they're doing. Don't have to add 36 pages.

0:17:32 Thomas: More basics question um I think is important what are these are these email exchanges like how do we how are we seeing when he offered to do such and such like what exactly are we seen I'm

0:17:42 Matt: I assume these are emails. I know the court has an internal communication system of some kind. I don't think it's like like just Outlook. But totally.

0:17:48 Thomas: Picturing some Supreme Court branded like I am like tech bro platform. Courtster. It's where you friend your local Supreme Court justices.

0:17:59 Matt: Well, I think Sotomayor unfriended a few of them over this one.

0:18:02 Thomas: These decisions. If it gets enough likes, it becomes the thing ruining our country. If it gets five or more likes and your thing you just did ruins the country. Awesome. Great.

0:18:07 Matt: Binding law, a social network of nine. Yeah! In the day, they actually used to do paper memos back and forth. And I've tried to imagine when I read these old Supreme Court books about what that was like, that they were like delivering like bushels of paper back and forth to each other. Sometimes the memos would be a couple of sentences, or they'd be like cover memos on top of the latest draft, and they'd have like three drafts a day or whatever. I can't even imagine how much paper you were buried in. But as it is, though, these are just memos where they're working out how they're going to approach the cases. They're discussing the drafts. They're going back and forth about how they're going to come down on things. You can learn a lot. And obviously, historians would love to get their their hands on all of these memos because we could learn a lot about how the Supreme Court operates, but this stuff has been locked down forever and always will be.

0:18:48 Thomas: Here's Here's something I learned recently that I think from my wife. We can't FOIA it either because the Supreme Court is, and I know how far this goes, the federal judiciary, but they are exempt from FOIA. I never had thought about that. Exempt. They're The Supreme Court at the very least is exempt.

0:19:02 Matt: Well, you wouldn't want to find out how they reached these decisions. Who needs to see that? That was the main thing we learned, though, on this case from this memo was that everybody was on board. They could have had this unanimous ruling, and he really wanted it, but he pushed it because he really want to do this thing with Congress having to actually set a rule. And of course, we ended up with the concurrences that we did. And Roberts was the swing vote for for splitting it basically they had the four conservatives that wanted to go for this thing with congress um that's how it became the majority because Roberts decided to go for the most extreme version and that's kind of the theme throughout these things is he has a choice he chooses the more extreme right-wing choice so

0:19:35 Thomas: He could, just to make sure we all have this clear, they could have had, which I still would, I vehemently disagree agree with him, be mad at the liberals about. They could have had a 9 -0 unsigned, hey, we're just going to decide this part of the constitution doesn't exist. Why? Because they don't like it. It would be bad if it existed. So we just get to do that sometimes.

0:19:52 Thomas: Fine. Okay. That sucks. I at least kind of understand where the liberals are coming from on that. But they're like, no, we need to go further. And entirely under Robert's control. So I know it's a little little confusing to me sometimes how this works so for four other assholes we're like no we want an even more crazy thing and roberts could have said no we're doing the nine oh thing right and that would have been that but because he sided with them then it becomes a concurrence yeah

0:20:21 Matt: It becomes a split and then you have then you end up he goes against the thing that he wanted because it turns out they just wanted to answer this question that nobody had been asking which is an ongoing theme in this term, too, of answering questions that nobody was asking. Think part of this, too is that they take themselves so seriously, and they think they have to provide answers for everything.

0:20:37 Thomas: Well they're providing an answer for the ages Matt, for the ages.

0:20:40 Matt: That's right. Speaking of rules for the ages, that is the next case. The immunity case, of course, Trump v. U.S., the big one, the worst one in a very long time, and the big one of the term. We learned from these memos that the D.C. Circuit, which again, remember, that was a bipartisan, two Biden appointees, one one George H.W. Bush appointee. They joined together. And just so everybody can remember what the holding from the D .C. Circuit was that John Roberts hated so much, I'm just going to read it very quickly. We cannot accept former President Trump's claim that a president has unbounded authority to commit crimes.

0:21:09 Matt: I'm stopping halfway through the sentence, but yeah. But no, it's unbounding authority to submit crimes that would neutralize the most fundamental check on executive power, which he's talking about, you know, messing with the elections. So that's a pretty simple holding that you can't just have unbound authority to to mess with elections. And John Roberts read that, and he's like, no, no.

0:21:10 Thomas: Doing the Lord's work there. What?

0:21:28 Matt: That's just not good enough. Yeah, no he responded. And this is not even anywhere close to the merits of the case. We're talking now in February, this all came down, these memos. And, this is the point at which there's a stay pending, the stay request, because they're going to seek cert on this. And Jack Smith is trying to move this as long as quickly as possible, because he sees where this is going. Roberts circulated what the New York Times called a scathing critique of the DC Circuit ruling. He said that the court will view the separation of powers analysis differently. It's quite a thing to say. The court will review the separation of power analysis differently, at this stage especially.

0:21:56 Thomas: What they haven't even taken the case yet.

0:22:00 Matt: No, they haven't even taken cert. They're just looking at the stay to see if they should take take cert, if they Should hold on to it, you know. And extreme. He Said the lower court failed to grapple with the most difficult questions altogether, the questions that he wants to answer.

0:22:05 Thomas: And that's pretty, no, they just applied the obvious thing that should be obviously true, but, I don't know. There's no rules. They make up all the rules. Or are there? How should this work? They haven't taken the case yet? These justices be basically kind of neutral about this until they have taken thecase or in the privacy of their own ruining our lives chamber? Is it fine? Like, what is this? Some context. Like, how bad is that?

0:22:16 Matt: That's when you're considering a stay one of the things you have to look at is whether it has a possibility of success on the merits so it's totally legit to talk about the merits and to say like if we took this case would we end up agreeing with the court or not you know if it's just incredibly obvious that they would agree with the court then there's really no point right um at this point when he's saying it looks like we're going to disagree you know it makes sense that you'd be discussing at least to some But I'm really surprised by that phrasing. The court will view the separation of powers analysis, not that I view it differently, but this is how it's going to come down.

0:23:00 Thomas: Very interesting. Yeah, that's the thing. Wouldn't it be like, okay, we're in this memo situation where we're passing notes, where we twist them up in the little foldy thing, and then we write the hearts on them, and we're like, will you go out with me to ruin this country, yes or no? No.

0:23:13 Matt: President do crimes, yes or no? Yeah,

0:23:15 Thomas: Yeah. Right back. Yeah, but would be one thing if you're like, well, I'm going to view this differently and then, you bunch of the other assholes were like, yeah, me too. Me too to be the court will view this differently is we it seems weird to me, but I again, I don't know that I have the context because this is such a opaque process all the time that I guess I'm asking you like how how weird is that or how you weird or yeah

0:23:37 Matt: I don't know. I've never read a memo leaked from the Supreme Court before. So I don'T know how normal it is to use this kind of language. But I'M just saying debating the merits makes sense. But then we get an insight because Thomas and Gorsuch responded in their own memo and said, this is going to drag the court into political battles ahead of the election. And their vote was to put it off until October, which the always has the power to do. You can always hold a case over, you can say, sure, we'll take it, but we're going to hear it in the next term for whatever reason. And that sounds like a pretty good idea, but you think about why they want to do that. Would have guaranteed for sure that Trump's trials would have had to stop, all of them, because then he would have said, let's stay everything until the court decides it next term, right? That was not entirely a selfless thing to try to keep the nation from going through all of this. Um Roberts and the I will say the moderates and the liberals wanted to have this thing heard because they thought they needed answers before which does also make sense I mean I do want an answer to the question can the president commit crimes before we elect the next president that'd be

0:24:32 Matt: Good uh just didn't think it was going to be quite like this um

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0:27:40 Matt: As the Times points out in the story, it seems like Roberts thought that he was going to be able to stay above everything by crafting the perfect response, like the perfect decision. And no, as we know, I mean, I think it really shows how out of touch he is. That's another thing that's coming through here is he doesn't really understand. I think he actually thought somehow that this decision was going to heal the country and that by using all this fancy language and referring back to the founders that we'd get it and we'd understand why they did this. You know, it was to the point that when his draft went out, Sotomayor said, look, I could join you if you can moderate this a little bit. Here's some things that I would like you to change. And he refused. And so because of that, she ended up writing this dissent, which we need to do at some point. I think it's a gavel gavel dissent. It's such a beautiful dissent in the immunity case. You know, when she's saying very directly that this is a danger to democracy, and he could have avoided having her write that if he had just toned down his own decision a littlebit, is the implication that I'm getting from this. So,

0:28:27 Matt: Yeah. And then, of course, after that, we've and Gorsuch really butter him up. Kavanaugh says, oh, this is an extraordinary opinion. And Gorsuch slathers on, I join Brett in thanking you for your remarkable work. Yeah. These are people who live in a bubble

0:28:34 Thomas: My god there's oh my I don't I was just making the jack off motion I don'T this is these I don't even know what to say about that like these dweebs these conservative dweebs just just thinking they're these geniuses writing this lofty, it's not even well -written lofty bullshit. It's just, yeah.

0:28:47 Matt: Pretty much. Yep. For the ages.

0:29:00 Thomas: For the ages.

0:29:01 Matt: Brings us to the third case, which they didn't have to take. So those are the two cases I would argue, I think they had to take the ballot case. I think the immunity case. But Fisher v. U.S., which we talked about a months months ago. Is the January 6th case that involved the interpretation of the Sarbanes -Oxley Act. And we talked it out at the time. And the way they came down on that was deciding that the Sarbanes-Oxley Act had no application to something like invading Congress, that it really could only be when you're messing with documents, not when you're trying to sort of cause this other chaos to interrupt proceedings. And that's, we don't need to get back into the merits of that. It's a very complicated statutory interpretation question. The interesting thing about this that came out is that four days, so May 20th, this is four days after the upside down story broke, as we talked about from Alito. And as he said, not when Roberts learned of it, but when the media broke it. We talked about that.

0:29:50 Thomas: Robert's probably learned about it when he ordered him that flag for his wife for his birthday or something. It was probably when he found out about it.

0:29:59 Matt: To recuse him or to force him to recUSE, which would have made sense because at this point, the man has been exposed as somebody who supports, essentially, the Stop the Steal movement. Was just to make sure his name wasn't on the majority opinion. And I think that does telling. And same with the immunity decision. I think you could have had good reason at that point to take Alito off of that, and they didn't do that. Completely optics. That's all it is that's all they care about and is probably the first time in u .s history I went looking around everybody seems to think that there's no other example of this but of course we don't really know because we don t have insight on how these things happen but it's probably the first time I knew his history that a majority opinion has been lost uh the sides that agree that like another judge took it over over something had nothing to do with the reasoning of the decision you

0:30:38 Thomas: Because normally it could be like well the court I mean they do they could change their mind I'm sure that's happened and then obviously whoever was writing the majority they're not in the majority anymore so they don't get to write the decision this you're saying might be the first time that anyone knows about at least where it's still the majority but they still lost the the authoring of the opinion someone else in the minority

0:30:56 Matt: You just it it would look so bad if Alita wrote it at that point. They And knew it. So, also learned in this, though, that Jackson changed her vote after the conference. The initial vote was five to four to reverse. Jackson would have joined Sotomayor, Kagan, and Barrett in their dissent. And she was able to narrow the holding, which I do appreciate because they narrowed it down to leave the possibility that some of these things could be upheld and remanned. There at least was that. That's some analysis from Steve Vladek, who will be, actually on Monday's show, I will be talking to Steve about something else, but I appreciated his look at that. So all around, I this is probably a clerk from one of the liberal justices. That's my best guess. It certainly could just be Sotomayor herself. It's not impossible, but I doubt it.

0:31:35 Thomas: Would never suspect I just want when it's all all over I just want Sotomayor or someone would be like it was me I want him to know it was me

0:31:38 Matt: Know. The whole time. But given the culture around the court and the way it is as an institution, I'd think it does say a lot that we have somebody who's determined to leak this way. And at the time, with those Alito leaks, they were promising more. And this is what we're getting. So I hope we get many more. Let's keep it going.

0:32:00 Matt: And whoever was leaking, was saying they've got more to come.

0:31:54 Thomas: Who was promising more oh geez I remember that that's awesome hey

0:32:05 Matt: The offer we made at the time that we can disguise your voice. You want to come on and leak on opening arguments?

0:32:09 Thomas: And we won't you know completely whitewash it like Adam Liptak and we could actually you give know you a an view of it so

0:32:12 Matt: That's right. Let's do some real talk. So that's what we learned from those memos.

0:32:19 Thomas: What's gonna happen Matt do we win we got got him do we win is he gone we don't he's not on the court anymore or does nothing happen sure

0:32:27 Matt: As usual, nothing happens. But, you know, this has to be a blow for John Roberts because his his reputation, it's very important to him. And I think he really likes being seen as a moderate. And I want to make sure that people understand that maybe he actually is a full -on Trump supporter. That's actually something that's possible. Honestly, I was still resisting it, even for as much as we were talking about up front, about how we knew this. It's just very hard for me to get my head around. Well, But, I shouldn't say very hard. He's still, at the end of the day, he's still a Reagan guy. It's not impossible.

0:32:53 Thomas: You know but but I hear you like I wouldn't have said that he was a like a guy and I still don't know because those people usually they just can't shut up about it and they're you know it's like it's weird to see a more I don't Know strategic um loud mouth mouth person, be a MAGA person and actually be competently evil. It Yeah. It's hard to wrap my mind around.

0:33:15 Matt: And I feel like this set of leaks was selectively designed to show us that too, which tells me something. I feel Like there was a package of leaks that, somebody really wants us to know these things and I appreciate it.

0:33:25 Thomas: And we want you to know them. So everybody listening, he's not a moderate. This sucks. We really need to, reform um, the Supreme court. I think we should get rid of the filibuster and expand the court personally. Um, to do that, we would need to win a whole lot of things. And to win a lot of people's votes, we got to vote and we got to help other people vote. We got to encourage friends and family to vote people, you know, As long as they're going to vote for the same people that we're going to vote.

0:33:41 Matt: I think we can do

0:33:48 Thomas: If they're gonna vote for other people, encourage them not to vote, just be like, nah, voting sucks. Who cares? Hey, vote third party. Tell them to vote third-party. It's a great idea. It sends a message.

0:33:55 Matt: It. Sure. Yeah that's right. That's right. And I think I'd like to put together a whole John Roberts episode at this point because I'd Like to go back and see if we can figure out where this guy's coming from and how this happened because you know he's been out there in plain sight the whole time I think maybe Maybe we can prove it.

0:34:07 Thomas: Is plain sight. Alright, Matt, well, we've got enough time for another important story, and so I'll introduce it by saying...

0:34:17 Thomas: How did our... why did our favorite rock and roll judge mcafee and his electronic cello was banned in on why did what's going on with him dismissing some of these counts in georgia and should we be worried about it that's right it's

0:34:33 Matt: Might remember, first of all, that he already dismissed six counts back in March. We talked about those. And those had to do with the incompleteness or what he said was the incom completeness of the indictment. And he was saying that the defendants couldn't necessarily know what they were trying to solicit the people to do when they were soliciting them to break the the law. Discussed that back in March. This is a little different. This one, I've been going back and forth on. I've be thinking about this all week. I think it's pretty reasonable. I don't think it is an unreasonable conclusion to draw. We can talk it out. Maybe you'll agree. Maybe you'll disagree. But it also doesn't kill the case in any way. It has to do with is the mechanics of the election certification. So what we're talking about in all three of these counts is the certified statement of the electors. Of course, for those who don't live in the United States or don't follow electoral politics close enough, when you go to vote for president, you're not voting for the president, you're voting for electors to get together and vote for the president. Not going to try to make that make sense.

0:35:28 Matt: It's perfect.

0:35:27 Thomas: A great system that doesn't do anything now except help the right yeah well

0:35:30 Matt: Should not at all be abolished. Yes, no, it should really remain as it is. So the whole scheme with January 6th, which sometime soon I want to actually break down what John Eastman, the architect of January 6th, was trying to do, because it gets lost in the obvious spectacle of people writing in the Capitol, which is much easier to explain than what they were trying to doing. Obviously, this RICO indictment in Georgia is a very large, complex, sophisticated indictment that includes a lot of different moving parts. And as we talked about back in March, you can shed some of those parts as you go. A few things can just fall off the turnip truck along the way. That's something thing you expect to happen with indictments. You don't expect that the entire case and something that's complicated will survive, that you're going to peel some things off because maybe you can't quite, you know, justify them and uphold them enough. And the judge is also looking out for appeal.

0:36:17 Thomas: Plus I mean we've talked a bit it like Fannie Willis is I mean not entirely uh love in with all her judgment at all times and because we looked at young thug that trial I mean prosecutors be prosecutors you know like it's prosecutors of prosecutors and And some, know, it's not like yes. Yes. Trump is a bad guy. And all the people involved, I think, are guilty. But it doesn't mean that they wouldn't be perhaps overcharging here. So, yeah, who knows?

0:36:29 Matt: That right? No, it's hard to say, but they're also, you now, they're testing out some things I think that really hadn't been tried before. So that's always going to be a problem too, if you're, if going into new law and New Territory. So what talking about three total counts. And just for context, I'm going to just reference what they wore. We're talking about count 14, count 15, and count 27 of the indictment. 27 is the one that I'm actually sorry to lose. 14 and 15 I don't think are that important. 14 has to do with a number of election officials that don't include Trump. I want to focus on the Trump ones for obvious But the allegation in 14 was that they had filed, along with their filings in federal court, they'd filed these electoral certifications not under oath. These were just sort of like the regular documents they were filing as exhibits in the court. The count 27, the one that I think really matters, is the one where they were filings. John Eastman and Trump were charged in that count. Were filing a verified complaint, and a verified complain requires you to sign off off under pains and penalties of perjury under 18 U.S.C. 1001 that you are filing something that is true and correct. And alleged that they were putting in things like 10,000 dead people voted in Georgia and that 6,000 underage people voted and all kinds of other things that they couldn't back up or that they knew were false. And again, I don't have the facts on those numbers, but I assume they're put into this indictment that Fonny Willis can prove that these things were false." So the allegations here from the defense were that these counts of the indictment were protected by the Supremacy Clause, that federal law was supreme because you're talking about something that was filed in federal court, and the state prosecutors can't actually prosecute you for things that you do in federal court. And that's not the worst argument that I've heard a Trump lawyer make, by far. It's actually a pretty solid legal argument.

0:38:18 Matt: Yeah, I know, that's true. We've looked at a lot of Trump lawyers at this point. I'll just take you through very quickly. McAfee writes a very detailed, very careful 22-page decision, and we're not going to read it all, but

0:38:17 Thomas: Low bar. Are but but okay what I'm reminded of though is the the New York case that we were covering on gavel gal we're almost almost done with um remember it being the case. Now that's a state case and the law, the state law was about falsifying business records in kind of pursuit of breaking a different law for, you know, I can't use the exact law words, but something like that. And I remember it being okay that the law you were breaking allegedly might be federal law. So do you see a similarity there? Is it, you does that make sense?

0:38:56 Matt: That's a good point, but it's not exactly a parallel here, because the exact crime that we're talking about is filing false documents in a federal court, or in court, basically, right? And I'll kind of break down a little bit more about how this works, but that was a little more attenuated, because the Newark thing, you didn't have to actually prove the full elements of what crime you're intending to commit or how you did it. You just had to show that you're doing it in furtherance of trying to commit a crime. And the prosecution presented a package of different crimes that would have qualified in federal election. Well, it happened to be one of them. There were also some state crimes. So there's some big open questions in that one that we don't really need to resolve because the jury came back and found that he did it, so.

0:39:31 Thomas: Gotcha. But point is not exactly Exactly analogous. Okay. That answers my question. Gotcha.

0:39:34 Matt: Not really. Yeah. But it's a good question. I mean, it's certainly an interesting analogy. In But this case, because it is pretty much on point with things that were filed in a federal court, McAfee goes through and he looks at different kinds of preemption, which I'm sure we've talked about in open arguments at some point. But obviously, we're looking at here is the Electoral Count Act. And I did some looking at the Ele electoral Count Act, it really was a mess until it was amended a couple of years ago. And it was amended actually in response to January January 6th, because there's this giant loophole by which you have to accept the results as conclusive within this safe harbor date, if the state has basically already signed off, even before the electors meet. Under And this 1887 law, in which we did the elections very differently back then, short the version is that the safe harbor date could be accepted as conclusive by Congress, and they were trying to take advantage of this by introducing lawsuits that would kind of cause some chaos into this December 14th, because the states were certifying the results and the the electors were about to meet. And the very short version though, is that by filing these things with the federal court and by filing their alternate slate of electors, they were committing crimes because they knew that these things were false. They knew it didn't reflect the actual vote and they were trying to make these challenges that they knew were based on nothing. So the real question in all of this is, is it Fannie Willis' right as a state prosecutor to prosecute them for things that they filed in federal court? And there are two questions here. One of them is about things that were not filed under Paints and Penalties of Perjury. And the other one is about things that were filed under oath. So first of all, just as a basic matter, he has to find, when they're arguing about the supremacy clause, he Has to say, was this preempted completely? And of course it wasn't, because the Electoral Count Act does not give Congress some exclusive right to prosecute crimes relating to electors. And electors are a state issue in a way, but they're also a federal issue. So it's a little confusing that way,

0:39:56 Thomas: I remember that. Yeah,

0:41:13 Matt: Because obviously the states regulate the elections, and they can set the time and place of there's some gray areas here that the defendants are trying to take advantage of in saying that the states can't actually prosecute people for fraud relating to electors, that only the federal government and only Congress can regulate these things and can redetermine these things. So it's not expressly preempted. There's no field preemption because Congress didn't specify that there's any kind of prosecution. There is no criminal law aspect to any of this. There is no reason that the state shouldn't be able able to prosecute on basis. The interesting thing is about this precedent that he's citing In Ari Loni. And Loni is actually from 1890. And if you're going to cite something from 1890, it either means because you have nothing else or because it's a pretty solid case. It's pretty much those are the options. And this seems to be one of those.

0:42:02 Matt: Loni Loney is pretty much on point because it involves a notarization that was made about a congressional election in support of an electoral issue. And And the finding in Loney is that because this thing was in federal court, that it has to stay in federal court ,that only the federal government can prosecute it, and that the state's ability to prosecute. That, honestly, it makes sense. I can see it. I can see the other direction as well, that the state prosecutor should have the right to prosecue lies that you tell in federal court if it looks like the federal government's just not going to do it. And there might be a number of reasons the federal government wouldn't do it." There's nothing that forecloses state law from doing this. But he finds that it is preempted in that sense, not in the sort of the classic supremacy clause preemption sense, but in the sense that you have this sort of sovereign kind of thing in federal court where it can only be prosecuted that way.

0:42:02 Thomas: One of which. Okay, Okay, interesting.

0:42:57 Matt: This out, the primary holding of Loney is that when somebody is testifying under oath or filing something under oath in a federal court, you're providing testimony in obedience to those laws, not in the performance of any duty which he owes to the state in which his testimony is taken. So you're bound by federal law at that point, not by state law. That's the central holding here. They're trying to throw out the whole indictment. And they're saying, of course, because why not, right? You got a chance, you might as well try.

0:43:19 Thomas: All courts out of order blah blah blah every time

0:43:21 Matt: But that's not happening. And he makes it clear that's not happening, this is a racketeering indictment, it's going forward. He also found that the forgery case could go forward, because under state law in Georgia, forgery doesn't really matter to whom you're making the forger. It's just the fact that you did the forging. That one is they're were trying to challenge, 16 and 17. Those are going to survive. For the most part, the that we lost before, I think maybe even might be more significant involving the soliciting to commit a crime. But we still have the fundamental case is there. There's nothing to worry about. We're down to 33 counts. We started with 41.

0:43:50 Matt: And I'm not worried about it. I think there's still plenty to work with. And there's a pretty sophisticated racketeering case, even if you kind of strip away what we've lost. So

0:43:58 Thomas: Matt when you look at this and you look it I mean 41 counts 33 are remain right and And OK, on one hand, 33. Yeah, sounds good. On the other hand, as a percentage, I mean, you've wiped out nearly a fourth of you think that this scandal, and roll, electric cello playing? We know he's a conservative, like we know he comes from a conservative background. Do we think he is operating for Trump at all or is he just doing his damnedest? Is he just do and judging like a judge? You judge, judges. Don't have to answer it that way. Use real language. You don't need to use my layperson language.

0:44:33 Matt: I judgy judge. Yeah, I mean, we've talked before about kind of the ways he stretched out the Fannie Willis issues with the disqualification question. Is a new judge. I think that's maybe what a lot of this is. He's being cautious because he really hasn't been a judge for very long at all. And this is his first major trial. It's kind of unfortunate that it landed on him this way. I think he's done a great job considering. But I do think that when you're faced with a pretty straight up and down legal issue like this, he's not bending over to do this. The law is there for him. Don't think that he's doing this in a way that favors any party.

0:45:11 Matt: I And he's always looking out for appeal, and you're always looking for that when you do things like this. You don't want the whole thing reversed because you left in some stuff that shouldn't have been there. But no, wait and see. He still has plenty of opportunities to show himself to be a federal society guy, which he is. I can still respect what he's doing as a judge and still say at the end of the day, it does look like he has this ideological background that could be a problem. But that doesn't necessarily mean that he doesn't want Trump to be convicted of racketeering. Should also point out that the charge is actually against Trump, because this 41 -count indictment involves a lot of other people.

0:45:38 Matt: There were only 13 counts against Trump, and now we're down to 10 against Trump. So that percentage is a little better. Maybe. That's where we're at. We'll just keep a watch. I'm sure that they'll continue to drag this out as much as they can. The appeal and the Fannie Willis matter is continuing, and that will continue for at least through the end of the year, I think. We've got got arguments coming up. We'll be following those next month and we'll be talking about it as it happens.

0:45:58 Thomas: So I mean are we on, is, are more charges to be dismissed on the docket? I we we know um if any more of this is coming you know or is this it like where where are we

0:46:07 Matt: This motion was actually found back in December. So I think that we're finally disposing of things. As far as I know, there's nothing else. There's no major challenges that are feasible that could actually have things dismissed. Actually fun trivia point about this that I saw is that technically speaking, he doesn't have control over the indictment right now because the case is on appeal as it relates to Trump and and Eastman.

0:46:24 Thomas: So wait how's he even doing this then

0:46:27 Matt: Speaking, it's going to have to be once it's remanded back after whatever happens after the appeal, then they'll be struck. But yeah, it just can't be interesting. Tiny little legal detail. Yeah.

0:46:33 Thomas: That is interesting yeah so theoretically those counts still exist in like some schrodinger's court indictment sense

0:46:41 Matt: They both are and are not stricken.

0:46:43 Thomas: All well we'll keep an eye on that as always um okay it seems like not entirely unreasonable so uh You've convinced me. And it's time to get to my new favorite segment, footnote fetish.

0:46:55 Matt: I've got a fun one involving Star Wars. And we've got Peter Cushing from the the original uh wars a new hope and he might remember was grand moff tarkin uh I had to go back and double check but grand mof tarkin was the man responsible for the death star and for destroying the planet alderaan right and of course killed the first death star broke up at the battle of yavin so that's just for context but

0:47:00 Thomas: Love that guy. Course. Of course, duh. Yeah. You know, a moment of triumph. Yeah, come on. This guy rules. I love this guy.

0:47:18 Matt: That's right and he's got that evil face so he's just got that gaunt evil face that's great that's

0:47:21 Thomas: You see, she can be reasonable. You may fire when ready. He's great. Fantastic guy. In the Smith household, when we first watch what is undisputably the the best Star Wars movie ever made, which is a rogue one. Absolutely. In my mind, the best star Wars movie, uh, so good. Um, didn't realize that he was CGI. I was like, I am sorry. Do you think the guy from the seventies is still alive and is due at later, much later, it was discovered that that Lydia needed glasses, and I'd only, I only pieced it together like somewhat recently when the joke came up again, I was like, oh, remember when you didn't know that guy was CGI, and then I was, like, wait a minute, discovered you needed glasses after that, maybe that's what was going on, because otherwise, I'm disturbed that you can't tell a real guy from a not real guy, but who knows, anyway, it's, yeah, the CGI

0:47:33 Matt: I got to agree. It's Wow. It looks the same. Wow.

0:48:09 Thomas: Grand Tarkin in that movie was a little off -putting, not a huge fan of the just all CGI actors, that it doesn't, it'S never going to look quite right, or, well, I shouldn't say never. Currently, it doesn't look quite right. I don't really love it, but, you know, it was cool to have them, I guess.

0:48:22 Matt: I agree. And that was pretty put off by that. Apparently it was a lot of work because the lighting and everything in A New Hope was completely different from Rogue One. And that's what we're talking about here is what this case calls the resurrection of Peter Cushing. They keep calling it over and over again. They keep saying that Disney resurrected him and Lucas Lucasfilm was resurrecting him.

0:48:35 Thomas: That's funny. Oh, that's not how it works. Do they not know?

0:48:42 Matt: I think they might actually think that.

0:48:44 Thomas: Yeah, there's no incantations done or anything.

0:48:47 Matt: You just stick his head on a different body double. That might be cheaper.

0:48:49 Thomas: Like, them bones, them bones. Yeah, I'm sure they tried it. I'm sur Disney tried it at first.

0:48:58 Matt: The Rogue One reconstruction of Peter Cushing was the most difficult and expensive ever attempted. I agree with you. I think it was a little uncanny valley. I don't think they quite got it. I kind of wanted him off the screen after a few seconds.

0:49:10 Thomas: Yeah. I mean, just get another actor man just like find somebody who looks kind of cushy like pretty he doesn't cush exactly as well but he's cush cush and uh you know has the evil british accent call it a day that's fine yeah

0:49:22 Matt: Get that gone evil face. You can find white guys that look like that. Plenty of them.

0:49:25 Thomas: It's fine I'll suspend my disbelief I don't care tell you what that's easier for me to believe than that an obviously cgi thing is a thing like that's you plus cheaper yeah

0:49:35 Matt: You need glasses, of course, because I was going to say that, yeah, please remove CGI

0:49:37 Thomas: Then look for lydia they could have had that be be a requirement to going into the theater oh we need to like wear these glasses are they 3d glasses no they just make your vision a little worse yeah it makes everything look slightly better they

0:49:45 Matt: Glasses. Yeah, that's right. Really interesting legal issues here. And actually I found just as a one quick thing before I move on, in a story from from 2017 about how they were going to be doing this in Rogue One, Disney actually said directly that they had no intention and they were never going to resurrect Carrie Fisher, which of course they went and did.

0:50:04 Matt: So they might have actually lied about that. I know, I know.

0:50:04 Thomas: Did though in that movie that exact movie they did that

0:50:09 Matt: And important part is uh is one of the strangest likeness copyright things I've I've ever heard of. This is really bizarre because Peter Cushing was all about being in another Star Wars movie. He wanted to be in another star Wars movie and he was disappointed that George Lucas killed him off. He said that he really had a great time and yeah, yeah.

0:50:09 Thomas: Am huh oh in the first one oh okay yeah oh

0:50:26 Matt: Killed him off at the battle of Yavin. And his family, his estate was pretty excited about the opportunity to have him resurrected. And so they worked very closely with Lucasfilm and apparently they took careful notes and they were in constant touch with them to say, yeah, that looks like our guy, that'll work. They were happy with it.

0:50:43 Thomas: Well here let me get my glasses no no need just tell us if it looks correct no No. Okay. It looks good.

0:50:47 Matt: I mean, honestly, the people that authorized this are no longer with us. So they might've been very old by that point.

0:50:52 Thomas: Wait. What? They're no longer. What? Back in 20.

0:50:54 Matt: This is going to get weird. It's not the estate. The estate is not challenging this. The state is fine with this. It'S his friend. It' s his buddy. So this is really, really strange. It''s

0:51:04 Thomas: He was like in line for the role too. And was like, no, I, he said I could get it over his dead body. And yet it's still like, I still can't get it.

0:51:12 Matt: Right. And they still got the computer. That's right. This is a battle actually between a film company called Tyburn and a former friend of Peter Cushing, who was making a TV movie with him that never ended up getting made. And obviously he passed her just because because it wasn't getting made. And his friend is insisting that this is not something that he wanted, because he signed an agreement in 1993, an agreement saying that he didn't want his likeness used in if they needed to do anything. Now, again, the idea of reconstructing somebody's likeness in 1993 was very different than it would be in the 2020s.

0:51:47 Thomas: Kidding. Yeah.

0:51:48 Matt: And there's actually some thought from what I was reading that they might have come up with that clause, because that's kind kind of forward thinking in 1993. They might've come up with that because The Crow had just come out. And you might remember Brandon Lee was badly reconstructed after he was shot on the set of The Crow. They finished it without him. Yeah, terrible thing. This weird little clause in this 1993 agreement, there's an argument from Tyburn Film Productions that this supersedes the 1977 agreement that Peter Cushing made with Lucasfilm, which of course did not mention whether his likeness could be used because who was thinking about that in 1977?

0:52:01 Thomas: Awful. Yeah, I'm kidding.

0:52:18 Matt: Nobody

0:52:19 Thomas: Didn't even have likenesses back then.

0:52:20 Matt: Right. It wasn't even a thing. Four years after this agreement, I actually thought of this. Nobody mentioned this in the stories, but Fred Astaire, if you remember, was in a Super Bowl commercial where he was vacuuming. They resurrected him to use a dirt devil on a ceiling. And so they just took one of his film's things and stuck a vacuum in it. Everybody seemed to think that was pretty disrespectful, but his widow apparently thought it was awesome and that he would have wanted to dance with a vacuum cleaner. She said that that specifically?

0:52:39 Thomas: He always wanted to dance with a vacuum cleaner in the Super Bowl. Like, I don't know if I believe that.

0:52:46 Matt: She said he liked to dance with all kinds of objects. And you know, if anybody handed him a vacuum cleaner, he would have done it.

0:52:49 Thomas: And they had cut her a check, so who cares?

0:52:51 Matt: Yeah. A lot of money for Super Bowl commercial, obviously. So, but when I remember this conversation starting was the Fred Astaire thing was like the first big time that I can remember somebody being resurrected in a creepy way.

0:52:59 Thomas: Man, Man, I vaguely remember remember that yeah huh

0:53:02 Matt: And so this was four years before that. So I just don't know if anybody's really thinking that much about it. But anyway, there was, this isn't a British court, so I'm not going going to comment that much on the law, but they were bringing essentially a motion for summary judgment in a British court. And the British judge was not impressed by Tyburn's argument, but they found that there's enough to go forward because they said that it's not really very clear which controls here and who has the rights. But I think it's a really strange battle between the estate, which was fine with having him in the movie, and his friend and this film company, which says that we somehow, this is unjust enrichment to us because he signed this agreement saying that he wasn't ever going to have his likeness used again.

0:53:37 Thomas: And so that's like devaluing their 1993 movie nobody knows about which

0:53:41 Matt: And there, I don't, which was never made. I don'T understand any of this.

0:53:44 Thomas: Was never made oh I didn't realize that I think you said that and I didn's based on it well that's stupid yeah I hope this that's man I

0:53:48 Matt: So yeah. Yeah. I DON'T think this is going too far.

0:53:54 Thomas: I'm not in love with the cgi guy but like that's not good reasoning for it for not doing it huh weird what

0:54:02 Matt: He was in a series of productions with this Tyburn film company, but the last one was was not made. So that's it. That's my footnote for today about peter christian's face yeah it's

0:54:11 Thomas: A fun footnote yeah right matt well that was really fun uh we packed a lot in there thanks so much for listening everybody please support the show at patreon.com/law got some good stuff coming to you and for listening we'll see you on monday but like you said steve vladek on mondAY can't wait love that guy see you then

0:54:26 Matt: A good one all

0:54:27 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.

0:54:44 Thomas: Don't, you don't actually have to calculate the percentage. It's fine. Okay, I wasn't sure what that pause was for.

0:54:47 Matt: I can't. I literally can't, so don't worry about it. No, I'm not doing math, I promise you. I wouldn't try to do that.