The Adams and Trump Cases Should Be Open and Shut. But Due to Awful SCOTUS Rulings, They May Not Be...

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!

0:00:44 Thomas: Hello and welcome to Opening Arguments. This is episode 1074. I'm your host, Thomas Smith, and with me are several viruses, a Matt Cameron, real-life lawyer. How many viruses are you bringing today?

0:00:57 Matt: I'm doing fine, but I got a bad case of beaver fever. I got to tell you, I am.

0:00:59 Thomas: What? What is that? What

0:01:03 Matt: I've got a footnote today. I got it. Use the footnote for this story. Yep. We have a beaver footnote. It's an exciting one. We're doing some beaver law today, Thomas.

0:01:03 Thomas: In God's name? A footnote. I was so, okay. You remember how last week or last time you did the reference to Turkey and I had not delved into the Eric thing. So I was like, what the? And then when you said this beaver thing, I Was like, is the Jack Smith thing? Does this involve beavers? What did Trump do? How did did Trump involve a beaver in his scheme? An innocent beaver.

0:01:30 Matt: Now I'm going to tell You the story of how a beavers shut down Massachusetts this week. It is a fantastic story. So well, we got to eat our vegetables first. We got to talk about two massive developments in the two most important criminal cases in in the United States right now.

0:01:34 Thomas: I love it. Course. Yeah. Yeah. Okay. So I love the Matt's footnote and I know that the audience is loving it as well. So looking forward to that fun one. Before we get to that, as you say, major news with this Jack Smith. Can't wait to even get the context from you as to what it precisely is and why we're seeing it now. But a big, I suppose I'll say for now, release of information that we might not have had.

0:02:03 Matt: This is a novel. So it just came out yesterday and I'd like to come back on it and really dig in, maybe do a gavel gavel or some other kind of deep dive on it. But I want to make sure you understand how unusual this thing is and why it's been filed the way it's being filed. Never seen anything like it. It's then we're going to turn to another massive Supreme Court problem. It'S amazing these things happen in the same week because we've got, Obviously, Jack Smith dealing with the immunity case. And then we have Eric Adams raising his defense in his bribery case by reminding us that maybe possibly the Supreme Court legalized bribery.

0:02:32 Matt: So we got two major sets of official acts being challenged in the same week by two of the most important defenders of the country. Country.

0:02:33 Thomas: Forgot about that. When I look at the Eric Adams thing, as we did on Monday, make sure you check it out, everybody. If you you haven't I to myself well he's dead to rights no way and then as you bring up we've covered on this show recently that was it yeah both this term two ways that the supreme court has just just just taken a a machete to the rule of law in different ways both regarding bribery and regarding this immunity thing which we've already covered and so So I'm really interested to learn from you, Matt, how that's going to affect to what you would think to open and shut cases of extremely criminal behavior. But are they?

0:03:15 Matt: Yeah, the Supreme Court turns out a little more pro -crime than you might have thought for a Republican -dominated Supreme Court. That's Yeah. What we're looking at.

0:03:21 Thomas: So we're going to talk about that. And I am scared, but at least we have beavers to look forward to to comfort us. And no beaivers were harmed in the making of this conspiracy, apparently, which is a relief to me. I was worried.

0:03:26 Matt: And That is right. I think we got to talk about J .D. Vance before we go too, but we will get there.

0:03:35 Thomas: Right, well, we're gonna take our usual break, which you can avoid at patreon.com/law. You don't want to hear the ads, by I do want to say, patrons and non -patrons alike, like, if you haven't heard the lot awful Weird Al debate slash music law deep dive, um, sure to check it out. patreon.com/law second tier patron and above. It really fun. So make sure you check that out.

0:03:56 Matt: Just a fun time.

0:03:57 Thomas: Right, after this break, we'll get to it.

0:04:02 Thomas: Matt, first you wanted to make a quick little note on the debate performance of one J.D. Vance.

0:04:08 Matt: Much to talk. I mean, this is a Yale lawyer. We knew what we were going to get from J. D. Vantz. But I want to talk the one moment where I think J.D. Vance actually shown through as a person because we all know that he is a snake and that that he's a know -it -all Yale guy, and he was doing a pretty good impression of a nice guy. That was his strategy going in, obviously, to try to out-nice Tim Walz. I wanted to talk about the time when his mic got cut, because it was directly relevant, of course, to the things that I think about the most. Don't know if you caught that moment, but I'd like to play it real quick so everybody can understand what we're talking about.

0:04:34 Thomas: I caught it. Yeah, Yeah.

0:04:35 Matt: Yeah, some mansplaining here.

0:04:36 Clip: Thank you, Governor, and just to clarify for our viewers, Springfield, Ohio, does have a large number of Haitian migrants who have legal status, temporary protective status, Mar -a, thank you, Senator, we have so much to get to, I think it's important, We're gonna turn out of the economy, thank the rules were that you got more than a fact check, and since you're fact checking me, I asylum or apply for parole and be granted legal status at the wave of a Kamala Harris open border wand.

0:05:06 Thomas: What? No. What

0:05:15 Clip: That is not a person coming in, applying for a green card and waiting for 10 years. Thank you, Senator.

0:05:15 Thomas: Are you talking about? Why

0:05:20 Clip: Thank you

0:05:20 Thomas: Would that be the good part?

0:05:23 Clip: For describing the legal status. We have so much to get to, Senator, we have so many. Thank You, gentlemen. We want to help.

0:05:34 Thomas: What is he talking about, you can't just come into the country illegally and push Push a button and get an asylum thing. I know that's not how it works, Matt.

0:05:44 Matt: It's not how it works. Yeah, he got a number of things wrong there. Remember, this is a sitting U.S. senator, one of the people who's supposed to be responsible for writing immigration law. So that's a little concerning. Every time I hear legislators talk about immigration law, I get a little worried. But I could probably spend an episode explaining exactly how he was wrong in those 71 seconds. But I just want to note, first of all, that he has been on a kick about, obviously, the Springfield Haitian migrant population in his own states. This is a good question for him because he's been speaking out against residents of his own state who are there to help boost the economy in Springfield. And he's been calling them, I hate to use this expression, you know I do, but he's calling them illegal aliens. That's the phrase he's using. So first off the bat, of course, that's just not true because they were brought in through a legal program. They are lawfully present.

0:05:57 Thomas: Wait, they didn't come over the Haitian border in that state from

0:06:32 Matt: Haitian border, yeah, that's right, the Ohio -Haiti border.

0:06:34 Thomas: Haitia? Yeah.

0:06:35 Matt: Yeah, that's right. What he's been trying to do, he's splitting Harris here and saying that they're actually illegal because the program that Kamala Harris was administering, obviously Joe Biden, but they have to throw Harris in all this. She has nothing to do with it because the problem is allegedly illegal, even though no court has ever found that and it's not, and it has been around. Okay, there are two things going on here. Now, I think that the moderators were talking about temporary protected status, which as Tim at the end has been around in one form or another since 1990, and we've had it for Haiti for quite a while, since the earthquake in 2010.

0:07:06 Matt: That just allows people to remain here if they were here as of a certain time. That has been renewed a couple of times under the Biden administration so that people who have come more recently still get to, because as you know, Haiti is in turmoil. It doesn't have a government. It's being run by gangs right now, and it's not a good place to go back to. So people don't like that. Trump has promised to cancel TPS as he tried to before. The only reason that Trump couldn't cancel TPS before was because he did it in a super racist And a court actually found that it was too racist the way he canceled it. What Vance started talking about was the CHNV program, the Haitian parole program. The thing about the wave of Kamala Harris's open border wand, which I'd love to get my hands on that. Where do they keep that one?

0:07:44 Thomas: Yeah. Is that which Zelda dungeon do you get that one in? Is it before or after the ladder that you get?

0:07:50 Matt: You get a lot of dexterity off that thing. Uh, it's, uh, I,

0:07:54 Thomas: The Kamala Harris too. I'm so sorry. It's not the point. We're not going to spend too much time on this, but hey, learned a lot about how much the vice president can do the other night, Matt. I didn't, I had no idea. The weird thing is from his description of what the vice present can do, it sounds a lot like what not only the president does, but like Congress does. And I just didn't know that the vice precedent wielded that much power.

0:08:16 Matt: Look forward to seeing, well, no, I don't look forward seeing what he does with it, but let me strike all that.

0:08:19 Thomas: I look forward to seeing what Tim Walz does with it yeah

0:08:24 Matt: There we go. But Uh, I, it is a little concerning that he's applying for a job that he doesn't understand. And apparently not great.

0:08:30 Thomas: First rule check the job description well check the salary you know like too like what they're offering uh see if the united states is offering any good benefits but yeah you got to know your job description man and it's not that

0:08:41 Matt: Yeah%. And also does does have something to do with administering immigration. So I really would prefer that he knew a little bit more about this. So what he's doing, he has just got something against this parole program. We talked a bit about the parole program, we've talked about different parole programs over the last few months, I don't need to get into it right now. But they're asking about TPS, he starts going on about parole, some of the people with TPS did come in on parole, no doubt. But at the end of the day, it doesn't matter, because all of these people are here lawfully through programs that are very well established. And the fact that you don't like the programs, and you don't like the people is not relevant. And the fact that he chose that moment to mansplain and to talk over the moderators and to be J .D. Vance for just like 71 seconds, I thought was very interesting that he had to be that guy in that moment so that he could justify the way that he's talking about black immigrants, frankly, that's what it was for. And so that he could justify coming out against Haitians and causing the kinds of problems that we're reading about in Springfield now, terrible things that are happening because they've brought so so much attention on these poor people.

0:09:17 Thomas: Advanced playing yeah well and did you know that these uh migrants who have probably literally nothing are buying up houses. They're the reason they come in here. Look, millennials with two full -time workers workers in a couple can't buy a house. What, you think a Haitian migrant is going to come in and buy all the houses? What are you talking about?

0:09:44 Matt: I learned that too. Well, Haitian migrants don't eat avocado toast. So I think that's the difference the millennials learn.

0:09:58 Thomas: That they do save a lot on that and lattes.

0:10:01 Matt: Yeah. Generally speaking. Yeah. But yeah, so there's just a little J.D. Vance moment. Honestly, I thought it was the only noteworthy thing of the debate. It was for the most part pretty...

0:10:01 Thomas: Yeah, that's true. Yeah.

0:10:09 Matt: I mean, honestly, it was just kind of an old -fashioned actual debate where they talked about policies, even if Vance said a lot of things that were either wrong or misleading or just dodged. There were a lot of dodges yeah

0:10:13 Thomas: Well, we shouldn't talk about that because I could do that forever. Maybe we will talk about the debate on something else, but I think we should move on. I'm glad you clarified but even I I would hope even oa listeners who aren't lawyers are like hey that can't be how any of that works and

0:10:24 Matt: Let's do it yeah what are you talking about

0:10:31 Thomas: Sure enough that isn't in fact how any of dat works and I love that he got I'm so glad he made the gaffe of uh you know he said there wouldn't be any fact checking because that's been everywhere now and that's great because he had an otherwise I'll be honest good performance from a from a debate standpoint not from a morals standpoint but

0:10:43 Matt: So good yeah oh yeah he's a yell lawyer that's what I expected for sure for sure also just the thing about the coming and waiting 10 years for a green card is completely meaningless I don't know what he's talking about

0:10:56 Thomas: Thank you for coming back to that too, because so the truth on that. But also I was just pointing out that he holds that up as like the good example. Look, this is not the right way to do it, which is come in here and wait 10 years, 10 years. That's the, his example of doing it right. Like why would that be anyone's idea of a good way to deal with this? To do anything.

0:11:13 Matt: I he might be thinking of the 10-year bar that we've talked about on and off over the months in which you have to wait outside the country for 10 years if you're married to a U .S. citizen under most circumstances. But yeah, I don't know. Again, I don't think he knows that much about immigration law. Let's hope he's not running the country.

0:11:28 Thomas: Yeah, no kidding. All right. Well, let's get to our meat and potatoes here of one of our criminals do you want to start with take your pick 50

0:11:32 Matt: You got it. Start with the big one.

0:11:37 Thomas: Matt I know probably everyone has seen the news about this this of new like it's hard for non -lawyers to know exactly what it is, which is why I love doing our show. It seems like some sort of new document release or new, new something, new, something that we didn't have before. It's making big waves in social media, Reddit. And my first question to you is what, what even is this? Why are we seeing these headlines about a new thing from Jack Smith before we get into like, what's you actually in it?

0:12:02 Matt: This isn't incredibly unusual, I course, this is the January 6th prosecution. With Judge Chutkan overseeing. She's moving this thing along. We already talked about before about how Jack Smith came back, went back to a grand jury, got a superseding indictment in which, in response directly to the Supreme Court's decision, he tried to prune out most of the stuff that could be problematic for the immunity decision. And he triedto focus on private acts. And the word private and unofficial appears all the way through this new filing many, many, many times, as you might expect. So at one of the hearings recently, just after after the superseding indictment, Smith had indicated that they were ready to go with a brief, that as soon as you want this brief, we've got it locked and loaded. And they delivered. I got to say, this is a 165-page brief.

0:12:41 Thomas: Now to clarify, so not only did he kind of have to adjust the indictment, right, or adjust that thing, but that wasn't enough. They also have to have a hearing on something else, and that's the brief that he prepared that we're seeing? Right

0:12:55 Matt: So the government's motion for immunity determinations is the name of this monster. And as we've discussed before, immunity is a threshold hold issue. So if the court has to find that he's immune from prosecution, that's the end of the case. So we can't get into all of the other things we'd usually be talking about pre -trial. That's why this is so strange because I have never, I don't think anybody's ever seen a filing like this in a criminal case ahead of trial, like way ahead of trial, in which the government just puts its whole case out there. Like it's just a novel. This is like an actual novel. It is 165 pages. Most of it is fact. So there's a lot to get through. Now, I think there are too many facts There's some interesting facts. There are some things that support things we already knew and believed. There's no major revelations in here, no massive things, except, I guess, a couple of things I can note. One, that when he was basically told that Mike Pence was in trouble, he responded, so what? Which doesn't really surprise me, but

0:13:46 Thomas: Both exactly what we would have thought and also still horrifyingly evil and we need to try to keep it in perspective how horrible that is

0:13:51 Matt: Pretty much, yeah. Yeah. And they also, we did learn that they have gone through his phone on that day, so they know pretty much what he was doing, which is nothing, as we know. He's watching TV and tweeting. And he personally tweeted a number of these things that we were wondering where the tweets came from. Was also my favorite detail that Rudy Giuliani accidentally texted, I don't know, some farmer in Michigan, his whole plan to overturn the election.

0:14:09 Thomas: My god uh but he runs a cyber security company and I would trust him too by the way this is the episode sponsored by rudy giuliani cybersecurity company me

0:14:24 Matt: I have to say, Jack Smith, and again, this is written, of course, by one of his best deputies, but they could have done this a little more dramatically. But I'll read you the actual text, which is, just imagine getting this text out of nowhere. I need you to pass a joint resolution from the Michigan legislature that states that the election is in dispute. There's an ongoing investigation by the legislature, and the electors sent by Governor Whitmer are not the official electors of the state of Michigan and do not fall within the safe harbor deadline of December 8th under Michigan law. Now, Jack

0:14:41 Thomas: Why me okay to be fair it just comes across like a scammy like a like a nigerian prince scandal like if you just send me the money first for the electors then then I can give you the money back

0:15:01 Matt: Not really sure what the long con is for getting a stranger to pass a joint resolution of the Michigan legislature, but somebody is very creative with this. So I just thought this was funny because Jack Smith could have presented this a lot better, I think. I just have a literary critique. I think overall, legally, this is an awesome motion. But on December 7th, CC1, one who is definitely Rudy Giuliani, co -conspirator one, attempted a message parentheses, though failed because he typed the wrong number into his phone parentheses, and then they put the message. I would much rather have seen the message and then give me the reveal that he actually sent it to some stranger. But yeah, but anyway, so basic narrative.

0:15:33 Thomas: Yeah just from a screenwriting perspective okay we gotta get somebody in in there to help yeah sure

0:15:39 Matt: Yeah. But I will say that the motion otherwise, especially in the beginning, it's very compelling. It kind of reads like an opening argument, maybe closing argument in actual case. I mean, this is not something you ever see in a criminal case because there's just no reason that you'd have the prosecutor presenting their entire burden for the case up front in a giant motion. It's just, I can't think of any other situation where this would ever happen. But I'll just read you the first couple sentences here because it is very well written otherwise. The defendant asserts that he is immune from prosecution for his criminal schemes to overturn the 2020 presidential election because he claims it entailed official conduct. Not so.

0:16:12 Thomas: Not so strong first sentence second sentence I guess yeah

0:16:13 Matt: Love a not so. Can't go wrong. The defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one. And that is the name of the game here. Now, one interesting legal detail, obviously, we already talked about the superseding indictment and about how they went out of their way to reclassify Trump and Pence as running mates, not as president and vice president. And he's working from the Blassingame standard, Trump v. Blassingame in the D.C. Circuit, which which was about civil liability for January 6th. And that D .C. Circuit found in that case that there's no immunity when we're talking about an office seeker rather than office holder when you're acting as a candidate. And it's obvious, right? The Supreme Court was talking about somebody who's actually serving as president. So you might remember that there were sort of three categories that the Supreme Court created. We haven't really talked too much about the second one, and that's what Smith wants to get into in all of this, because he's anticipating anticipating uh this is going to go and he's responding directly to the arguments that trump has made because trump's opening gambit on this was these were all official acts you can't possibly

0:17:07 Matt: Prosecute any of this yeah that's that's the way it goes and so smith concedes through some of this he says yeah okay some of these might have been official acts and the court could certainly find that but under the supreme court standard you can go further because if it's not a core presidential duty then the court has to look to see if this was actually something that's within the perimeter of of official acts, right? So if it's outside the perimeter of official acts, even if it is being done while you are president, then we can still look behind him and we can prosecute. And what Smith is saying, I think very convincingly all the way through this, is that every single thing they are charging him with and all of these facts that they are ready to establish are outside of that perimeter because they are a candidate. There is somebody who is not doing any president stuff, he is doing candidate stuff. And, what is really exciting about this to me is the thing I am really waiting on. And this is great. It's a good read. But I will say that we have about 200 or more pages coming with the appendix because Judge Chutkan can release this to the public. She thought it was important enough that we see this. She released a redacted version. So there's a lot of black bars and lots of codes there's for different people. You have to try to figure it out, which is always a fun game.

0:17:07 Thomas: Course yeah of force it would be yeah and are any of them dave rubin or no does

0:18:09 Matt: Know Dave Rubin on this one, fortunately. Going to get another 200 or more pages of appendix, which is going to be really exciting stuff. More documents they intend to present at trial.

0:18:17 Thomas: That qualify under your footnote fetish or not quite perfect

0:18:21 Matt: There's some great footnotes in this thing too. Also going to get grand jury transcripts are being promised, and I'm very excited about that. So we can see from the source. And I think before the election, people really need to see this because this could be our one chance, unfortunately, to really see the government's case against Donald Trump. We We know generally what the case is, but seeing it laid out like this, point by point by point, all the way through, about exactly how many times he was told that there was no election fraud, you lost the election, what are you doing, over and over again. He breaks it down state by state to show all the different ways that he knew that every state was lost, even though they kept challenging it. Breaks down all of these conversations, all of These different times when he's told Yeah, perfect phone calls and conversations with Pence as well, because they've got Pence's testimony and they need to clearly establish that the conversations with pence were not protected. We're not immune because he's trying to win an election. So I'm with it on all of this. I think it's very well done. I think that they have proven to me, and of course, I'm a very sympathetic reader here. I want this to be true. But we've got about a dozen pages where he just goes through his tweets and explains about how these weren't official acts because they're just tweets about January 6th.

0:18:59 Thomas: Phone calls yeah official

0:19:28 Matt: Do a four -part order. He's asking for quite a lot here, but I think it's pretty reasonable. He wants the court define that the government has rebutted the presumption of immunity. So he's saying, again, in this part of the Supreme Court test where they're talking about official acts that might not be protected, there's a rebuttable presumption if you can show that it was outside the perimeter of acts. He wants to have a finding officially. The government has rebutted the presumptive of immunity attached to the defendant's official communications with Pence, because that's the biggest weakness of the case right now, that the remaining conduct described, that all the other conduct other than the communications with Vince was not official, and in the alternative, that the government has rebutted any other presumptive immunity for any of the remaining conduct the court does find to be official. He wants that all knocked out right now because we can't proceed until those decisions are made. That's the purpose of this hearing. Then Then he's asking, furthermore, is completely subject to trial on what's left of the superseding indictment, so just everything else that they've presented, and that the government is not prohibited at trial from using evidence of the conduct described in Section 1. That's the real issue, right, is how much evidence can they use because of John Roberts' decision.

0:20:31 Thomas: So bad I

0:20:32 Matt: So that's a whole other thing about what they're going to be able to do. And that's why it's very important that we get to see this evidence. Now, Trump has seen all of this in his team. Obviously, none of this is surprises. Surprises. Everything in here has already been come out in discovery. We just haven't seen it. So it's pretty exciting for us to get to see it now. And I really hope that there's drumbeat of coverage on this because, you know, I've been talking to people whenever I can. I hope so. Yeah. I've Been Talking To People Whenever I Can about January 6th. So they understand that it was more than just a riot at the Capitol. It was a pretty thought out plan to actually replace the actual electors that we voted for with a slate of fake electors so they could ever throw an election. And I think that Jack Smith really shows Trump's state of mind, his knowledge of these things, where his head was at during all of that. And that's what he's got to do. But again, it's incredible to be reading all of this this far ahead of a trial before really major pretrial motions have been filed. The government's just putting out its case. So this is going to be a very interesting hearing when we get there to see what Chuck does with all this.

0:20:52 Thomas: Think there is for sure so they gonna have arguments oral about this or something

0:21:32 Matt: Yeah, they're going to have to have a full hearing. Actually, right now we're still in the briefing schedule. Chutkan had set until the 26th. Jack Smith had filed this a little late and he got permission to do that. He also got permission to file an oversized brief, because this is way beyond what you'd expect in federal court. Then Trump's lawyers have until October 17th to respond to this, and she'll set something from there. We will be following this, of course, very closely. This is the most important criminal case, I think, in US history, because it is determining the actual liability and responsibility of the former president of the United States for a pretty credible attempt, yeah, pretty credible intent to overthrow the government. I know this sounds very dramatic, but I don't think we can say it enough.

0:22:02 Thomas: For the coup we did yeah it's insane it's absolutely insane and 6 I mean I forget if I mentioned it but Lydia and I watched a couple january six documentaries the other day I hadn't because like honestly it was it was too raw for a bit like I just like it it what happened was so much more horrifying than our collective memory now allows like it really was um horrible and just a total total desecration of uh the capital in a way and to for it to be done by the stupidest angriest mob of racists like it's just it's crazy it's crazy it'S absolutely crazy and as you say I mean that wasn't just that I mean there was so so much more to the plot, but they were very much, very much entirely motivated by this plot. Trump is, in my opinion, directly responsible for all that. Now my question is, we we already know the name of the game was delay and the Supreme Court did that for Trump. The Supreme Court bailed Trump out of all this stuff. They just did. And they totally had pure motives that involved nothing but the rule of law and love of our country when they did so. Or maybe as recent leaks would tell us it's just pure partisanship on john roberts's part but the point is they have until the 17th I think you said then there's a hearing then there'S A RULING THAT TAKES LONGER AND THEN THAT I IMAGINE IT BE APEALED BEFORE THE THING EVEN GETS TO START RIGHT HE

0:23:24 Matt: Supreme Court is probably going to have to take a look at how Chutkan had interpreted their decision and come up with something new, a new decision to see exactly where this falls. And this, of course, is all assuming that we don't have a President Trump who will corruptly dismiss it. It is incredible to me that that is sort of the consensus of the media and the people who who are following this, legal commentators, that we're just sort of expecting that we know who this guy is and what he's about, that he'll appoint an attorney general whose only qualification will be, are you willing to dismiss the cases against me? I think that's going to be the first question.

0:23:37 Thomas: ACTUALLY DO THAT IS BUT AT THIS POINT IN THE PROCESS ISN'T THERE ANY SORT OF LEGAL PROCESTS ABOUT THAT LIKE DOESN'T THE JUDGE HAVE TO GET INVOLVED AT THAT AT THIS late stage of the game or can they really just say never mind well

0:24:05 Matt: To dismiss, the judge would have to actually sign off on that. But if they null -prost the charges, if they just drop the charges... could certainly see that this is a very unusual situation, obviously, to have...

0:24:14 Thomas: It reminds me of cereal too it's like kind of like that yeah

0:24:17 Matt: Where you have suspect motivations motivations for trying to drop charges. Yeah, I don't know. This is completely new territory. Really, it's very hard to say. I don'T know how it works from here, but we just have to find out. And I hope we don't. I really hope that we are actually looking at a very long prosecution.

0:24:29 Thomas: I really hope we don't it's

0:24:31 Matt: it'S going to take years for this case to reach its conclusion, no matter what happens. And I HOPE that it has the chance to do that. Because this document is... And people really should just take a look at it. And I hoPE we can go deeper on it sometime soon.

0:24:41 Thomas: Too long we should take a look at it for people well

0:24:43 Matt: It' s huge. But this document really is an incredible reminder of how much evidence there is against Trump, against how serious this case is, and what it means for us as a country if we don't prosecute this, if we allow it to stand. I think that we'll never recover, honestly. Honestly.

0:25:00 Thomas: Shall uh take a break and talk about the other way that the supreme court is maybe going to allow the worst criminals in our history the most important crimes in our history to go unpunished maybe yeah

0:25:09 Matt: Yeah, I just bummed myself out. And then we'll talk about beavers and we'll be good.

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0:26:59 Thomas: As impossible as it may seem, I Court, I almost asked you on Monday, but we didn't really have time. The Supreme Court has ruined so many of the avenues of prosecuting public corruption, right? I mean bribery. Now, if you call it a tip, Turkey just calls it a dip. I mean is Eric Adams free to go? So, I mean, how much of, so I guess break this down for us. How much are you worried about this?

0:27:21 Matt: Yeah. Eric Adams filed a motion to dismiss on Monday. And of course, our last show on this was on Monday and we had some fun with the indictment because the facts are a lot of fun. We were mostly focused on the facts because there's just so many of them and they're so entertaining. I'd only had the indictments for about 24 hours at the point of which we were doing this. I wasn't so concerned about the law because I just wanted to see what the allegations were. But I was thinking some more about the lawyer and then I took a look at this motion to dismiss. And of course, you know, I have to apologize that I forgot that the Supreme Court kind of legalized robbery. Bribery. I didn't really think about it at the time when we were talking about the Adams indictment, because Snyder, it was directly dealing with payments that were made after a corrupt act. Long as you're just sort of giving the money after the act has already been done, no harm, no foul. It's fine.

0:28:01 Thomas: It's a tip. Tipping your mailman.

0:28:02 Matt: It's a gratuity, just a gratuity. And it doesn't necessarily mean there's corrupt intent. And there's no quid pro quo, and there was no agreement beforehand. Now, Jackson pointed out in her dissent, which I went back and read a little more carefully after thinking through the motion to dismiss that I just read in this case, she said, we took this case to resolve whether Section 666, which we'll be talking about, criminalizes gratuities, I .e. payments in recognition of actions the official has already taken or committed to take, without any quid pro quo agreement to take those actions. Majority today answers no, when the answer to that question should be an unequivocal yes. And we went through that dissent a bit before in Snyder for patrons, and I thought that was a really good read. Case opens the door in a way that Alex Spiro, the attorney for Eric Adams, is happy to walk through. And he filed this 20 -some page motion. I just want to take you through just a little bit here because it's presenting some serious questions. Now, I think there's some good answers to a lot of these. I think there's red herrings in there. I do think that you have this new case. You have McDonald, the case involving the Virginia governor from 2016, which also diluted, as we've talked about, bribery law pretty badly. Starting with the fact that chose to charge Eric Adams, not under the 18 U .S .C. 201, which is the Bribery of Public Officials and Witnesses, but they charged him under 18 U.S.C. 666, which we talked about in the Snyder case, that was the statute in question in the Snyder Case, and that is theft or bribery concerning programs receiving federal funds. And I think, I have a theory as to why they went with this, but just to remind you, this statute applies to anybody who is an agent of an entity that receives more than $10 ,000 in federal funding, which I can tell you without checking that New York City absolutely does. Pretty sure.

0:29:39 Thomas: No, only $8,000 actually.

0:29:41 Matt: I think the NYPD just spent $10K in federal funds in know, in the last five seconds. It that they corruptly, and keep that in mind, that is the mens rea here is corruptly solicits or demands for the benefit of any person or accepts or agrees to accept something of value from any person intending to be influenced or rewarded in connection with any business transaction or series of transactions involving anything of value of $5 ,000 or more. So most of this they can prove. And I think the reason that they went with the 666 version of bribery, rather than the standard 201 one, is that 666 doesn't require an official act. It's just in connection with any business or transaction, whereas the 201 standard requires an official act. And the law, for the most part, as the Supreme Court seems to have synthesized around it in Snyder, the law for 201 and 666 are pretty similar at this point, the standards and how things are viewed. And as Spiro points out in the motion to dismiss, both the majority of the the dissent agreed that official acts are still in play here. And I thought it's interesting that today we're talking about official acts in connection with presidential immunity and

0:29:41 Thomas: 000 bucks. Right.

0:30:42 Matt: In connection with bribery.

0:30:43 Thomas: They go the opposite ways, right? Like you want official acts in the Adams, if you're prosecuting Adams, and you don't want them if you are prosecuting Trump. God, the Supreme Court has just ruined, they've ruined so many things. It's an understatement. But I mean, this is ridiculous. Like we shouldn't even when it comes to these two things, we shouldn't even be worried about these issues. Like, you know what I mean? Like, there's a lot to worry about. Obviously, the government's got to prove up their cases in both cases, obviously. But these components of it should not be part of the effort here. Am I wrong? I mean, having to worry about like, oh, well, we forgot the Supreme Court legalized bribery in a bunch of ways and also legalized whatever in a batch of ways if you're the president. So we got to navigate around that.

0:30:50 Matt: And it just happens to be in two of the biggest criminal cases in the country right now in the same week. They're not helping. Yeah, yeah. Sure. No.

0:31:28 Matt: No, I mean I was talking to Casey about this the other day, and you know, she is a estate employee and she can't take gifts of more than $50. And I checked in New York City, same in Newark City. It's like a serious problem for her if she were to take like a fruit basket that was more than 50 dollars.

0:31:40 Thomas: Flying coach on Turkish Airlines, everybody.

0:31:42 Matt: That's right. Yeah, that's right, but you know, for all city employees, I found like the official like Q&A, like the FAQ, there's like, a very detailed thing for city employees who are just getting started about how you accept gifts and when you can take them. And you know from anybody who's doing business with the city of New York, you can't take a gift worth $50 or more. And now, as Alex Spiro points out, that's just ethics rules. Who cares about that? That's not the criminal statutes. But I just think it's so telling that you've got people at the highest levels of government saying, well, not only do the ethics rules not apply to us, but basic criminal concepts don't apply to us at this point. That's where we're at. And what the public might understand to be bribery, well that's not bribery. That is just doing some favors for some friends. And he's making the point that it's completely normal for companies and for for entities, to do favors for high-powered people, and to give them special seats at tables and whatever, free meals and all this other stuff that they're not supposed to be taking under the ethics rules. The garbage man can't take that, but you can as the mayor, apparently. And we don't want to go getting senators in trouble, he says, basically, for doing all these things that they do to kind of pull strings and to grease the wheels for people and their constituents. And that's always been the argument from McDonnell onward, that we have to protect this way of doing business and this very sacred kind of system of bribes and gratuities. A couple of the arguments here, I just wanted to read you because it is pretty well written, I will say. Indictment in this case alleges a quote-unquote bribery scheme that does not meet the definition of bribery and indeed does not amount to a federal crime at all. Bold start. Just three months ago, the Supreme Court rebuked the Justice Department for adopting a quote-unquote unfathomable interpretation of the federal program bribery statute that would leave state and local officials entirely at sea to guess about which gifts they're allowed to accept under federal law with the threat of up to 10 years in federal prison if

0:33:22 Matt: They happen to guess wrong. And of course, remember we talked about, that's right, Starbucks gift cards and fruit baskets and edible arrangements. You know, we can't have them sweating at night about whether they're going to go to prison for taking those. And, of course, as Jackson points out, that is not what it is about at all. To read very quickly here, yet here goes the department again. It appears here is that after years of casting about for something, anything, to support a federal charge against New York City Mayor Eric Adams, prosecutors had settled on a theory that depended on the department's longstanding view that Section 666 criminalizes gratuities, including gifts meant to curry favor with governmental officials, but not linked to any specific question or matter. Giving people gifts to curry a favor with government officials used to

0:33:22 Thomas: These poor federal officials.

0:33:59 Matt: Be a pretty obvious crime, yes. But with McDonald, which said that you have to essentially have a handshake agreement or a written agreement or contract or whatever that, okay, thank you for this bag of cash. I will now get your fire department permits.

0:33:59 Thomas: That sounds like bribery. Yeah. Fortunately for us, Eric Adams is stupid enough that he did do that, like pretty explicitly. But like still the part

0:34:19 Matt: Of his arguments is that there was never any agreement. There's never any expectation. I think, and I pointed this out on Monday, the most telling part of the indictment to me that I feel like still didn't really get enough attention.

0:34:29 Thomas: Where he's like hey now you owe us he's like I know that seems okay case closed there to me uh seems pretty

0:34:32 Matt: Know. I mean, that's, yeah. And that is hearsay from a staffer who has flipped, but I believe her, that he said directly to her when she told him.

0:34:42 Thomas: I thought that was a message oh okay oh

0:34:44 Matt: And Adams responded back to her. So Adam said, you know, I Know. Right? But again, that is in the indictment. I think they can support it. They have testimony for it. But you know the Turkish official told him that it was his turn to support Turkey. And you know that doesn't mean like to show up to to their soccer game, that means you're going to do some permits for us. And one of the arguments is that, and again, remember, 666 requires corrupt intent. And I think the one thing we can prove from this indictment is corrupt intent, it's every page, it's all over it. We had some fun with some of the most fun, but we didn't even get to some of them, the other parts because we didn't have time. But there's talk throughout the indictment about how we have to make sure we delete our text messages, there's the staffer that went to the bathroom and deleted their text

0:34:46 Thomas: Gotcha gotcha yeah yeah yeah that's for sure yeah yeah

0:35:21 Matt: Messages. People knew that they weren't supposed to be doing these things, the people knew they They weren't just taking some occasional favors. This was something that it was an investment, as these things always are. I think, as you said in the episode we did on Snyder, that today's gratuity is tomorrow's bribe, right? You're just building that relationship, moving it along. I like the way you put that.

0:35:37 Thomas: I remember saying that that doesn't sound like me that sounds too smart to be me I think it was probably in the uh you know, Jackson, there's somebody's dissent or something yeah

0:35:42 Matt: Was you. No, you had a moment there. It was a good one. So they're also alleging that this was not an official act because he was the Brooklyn Borough President at the time when he was putting the pressure on the fire department. But that's a red herring, because under McDonald and the other cases, you don't actually have to have the authority. It just has to be that you either say you do or that the person giving you the money believes, for whatever reason, that you have the ability to do it. And the fact is that he was, for all intents, he was the mayor-elect at the point at which he was doing this with FDNY. And Spiro makes the point that there's no precedent for this to say that it's necessarily acting under any kind of authority just because everybody knew he was going to win the mayoral race, which I understand. But practically speaking, what do you think you're going to do if you're a fire department?

0:36:12 Thomas: Well can't be the law that like let's say I'm an official uh uh comptroller and uh somebody local person's like hey can you help me with so and so and I can't actually but I'm like no one knows what the comptroller does so I'm just like yeah sure I can help you with that just uh it's It's going to cost you, you know, and they bribe me and And my defense is, your honor, I'm completely innocent. I lied about what I could do. The comptroller can't actually do. I know it's crazy. The comptrollers can't do that. That can't be okay, right?

0:36:57 Matt: No, and even asking for the bribe is a crime, just in itself. So I understand, again, I don't blame Spiro or Adams for making these arguments. They're completely available to them, unfortunately. Couple other things. McDonald, he's really making the point that there can't be a quid pro quo because the relevant point in time is when you actually accept the payment and what your understanding is at the time. Now again, Adam's statement that he knows that by accepting these things, he's going to have to help Turkey in the future, I think is pretty damning. Always been the problem since McDonald because the Supreme Court required such a high standard for this, and it can't just be basic kind of favors and wheel greasing type stuff. Saying the the only thing the indictment really alleges that he promised to do was to assist the Turkish official in the operation of the Turkish consulate. But he wasn't going to come in and help them set their employee's schedules or something. Everybody knows that means you're going to get the thing done. And again, whether he had authority to do it or not, he said he was going to do that. And I think that's completely concomitant with what actually happened where he pushed through these. And of course, they're also saying he wasn't pushing them through. He was just sort of like sending some messages that, you know, even though it says in the indictment that the person was told they could lose their

0:38:01 Matt: Job, they're saying there's no proof of that. We don't even know that Adams said that, which is true. It doesn't say that. And I did note on Monday that it seemed a little strange. The prosecutors might've been reaching a bit when they said that he accepted all these things in the anticipation that he was going to help with the consulate, because that was years before. It's hard to say that for sure. It is a little sketch. And this is all a motion to dismiss just the bribery charge. I should have said that upfront, but that's what we're talking about, not the entire indictment. Now, remember, the rest of it is very serious, involves straw donors, involves the abuse of matching funds, which I don't think I mentioned on Monday, but those matching funds are eight to one, if you can show these small donors. So they were setting up this, yeah,

0:38:32 Thomas: That's so funny. I was doing some math and I was like, wait, how does this work if it's just matching? It's not just matching.

0:38:37 Matt: A lot of money, eight to ones. And it's supposed to encourage just regular people to donate to candidates so they know that their money is going to be matched. But you can easily abuse that, it turns out, by setting up a bunch of straw donors to funnel through foreign money to take advantage of that program. And people have have already been indicted in the rest of it. I'm not going to get into it now, but is very real, and he's going to have a harder time getting out of that.

0:38:58 Thomas: And the Supreme Court has at least another session before they make whatever that scheme is legal. You know, they'll tell you it's taken some time. They haven't yet.

0:39:03 Matt: Yeah, somehow. Sure, sure. Is one point he made that was very good, because I hadn't really thought about it when we were talking about in the indictment, but the upgrade to the flight to Ghana, which of course, first step, Istanbul, always got to go through Istanbul. That upgrade, the business class upgrade, and all the associated perks he got while he was stopping, those were all given to him after the permit issue was resolved. So that actually would be covered by Snyder directly because the Snyder holding was that if you receive gratuities after the fact, when no explicit agreement, that can't be. That's a mulligan. No problem there. Claim that when the staffers relayed to Turkish officials that they could reach out to Adams anytime through his senior advisor about all your pending problems involving the consulate, and this was once he was mayor, they're saying that didn't really mean anything, that that's the kind of thing that a mayor would say to anybody, just reach out to my senior people and we'll fix things for you. But having already corruptly sped through and waived 60 fire department things, I feel like has to go for something.

0:39:59 Thomas: Feels to me like a lot of, you know, the mafia-esque talk that, is you not actually a get out of jail free card. Sure would be a shame. It's like the opposite of that. Sure, it would be great if someone solved your consulate problem or whatever. It feels like that kind of stuff where it's like, OK, you might think law with some of these word games, but I feel like once you have the totality of the picture and you can look at the corrupt intent and you can look at what happened. I think this would be hard to overcome as a prosecutor.

0:40:24 Matt: I mean, it's the combination of the straw donors, which he knew was a crime, no question, and all the personal perks, right? To me, it is those two things together. Like, you know that you owe these people. I did want to close it with some hope from the actual Snyder ruling. Just a direct quote here from the majority. A state or local official can violate 666 when he accepts an upfront payment for a future official act or agrees to a future reward for a future official act. So this is still good law. I mean, they didn't completely vitiate the idea of bribery or gratuities. And if SDNY can still prove based on the witnesses they have, and it sounds like they have and will probably flip some more people, that this was pretty well known, that he had this deal with Turkey, that there was at least some kind of understanding about what that was going to be good for. I think the bribery contract could still survive, but it's harder now because Snyder has a lot of language in it that is very good for Adams. Yeah.

0:41:15 Thomas: Maybe it was a bad ruling. If it has a lot of language that was very good for the most criminally criminal second only to Donald Trump. Come on. Oh,

0:41:24 Matt: I would hope that maybe people can see that. Other quick note I wanted to mention, since it happened after we recorded the last episode, of Eric Adams' aides got married here in Massachusetts in Martha's Vineyard over the weekend. So congratulations.

0:41:36 Thomas: Let's send them something. Are they registered?

0:41:39 Matt: And again, I am not trying to, I'm sure it sounds like from what I've read, they have been together for a while. It is Sheena Wright, the first deputy mayor, and David Banks, the school chancellor, they married at Martha's Vineyard a little sooner than they planned to. And there's some thought that maybe they were trying to perhaps get some spousal privilege into the mix, which is a little weird because that's just like arrested development territory, I feel like. Charge a husband and wife for the same crime. That's what I thought of.

0:42:02 Thomas: The quote I had in something forever yeah you can't charge a husband wife the same crime I don't think that's true really

0:42:08 Matt: But I just thought it was a weird kind of detail. And again, it does sound like they're a long-term couple, and maybe they just decided to maybe forget about the Eric Adams stuff for a while and go have a nice time and get married. And, again, congratulations sincerely, but you're not going to get out of testifying in this case. No, that's true.

0:42:20 Thomas: Is that retroactive okay hey

0:42:23 Matt: True. And also, neither of them have been charged with crimes yet. So they'd be testifying against Eric Adams, to whom they are not married. So if they married Eric Adams it might be a little different, but still not that much different.

0:42:32 Thomas: Once once that family law stuff is uh reformed a little bit who knows who knows the marriages we're gonna see out of pure corrupt intent yeah

0:42:42 Matt: That's right. We get Diana Adams on the case and who knows. But just a little footnote there. His patron had mentioned that and we didn't get a chance to talk about it because it was recorded before that happened. So there's more to come. There was a hearing on the 2nd on Wednesday, which in prosecutors were kind of hinting there might be more charges coming. Certainly there are more people being pulled into all of this. So it could just be this is the first set of charges. On what we've seen so far, I certainly wouldn't be surprised.

0:43:07 Thomas: I I thought I saw something about more coming. I just would not be surprised at this point. I mean, gosh, it doesn't sound like it's not as though Adams was careful. It's not As though he's, you know, so no.

0:43:16 Matt: Not covering his tracks. Certainly not.

0:43:22 Thomas: Is it time for Matt's footnotes fetish? I hear something. There's something coming about beavers and I cannot think of a better use of the footnote fetish. Is a criminal beaver that the Supreme Court has now made fine? Like it's like yeah beavers can commit murder obviously it's in the constitution thomas jefferson was a beaver and wanted beaver crime to not be crime I

0:43:41 Matt: Is. We do have a beaver tangling with the law in massachusetts and you know I I feel like just for context I've got to send you a picture of nibby the beaver so you can understand the adorable beaver that we're talking about

0:43:56 Thomas: Feel like you should do that anyway regardless of the I always want a picture of whoever, Nibby the is beaver, oh he's, oh look at him he's thinking, he's really thinking about something hard, is Nibby, is I want, I don't want to misgender Nibby, are we talking about a male there's a lady oh she's thinking she's thinking real hard this beaver she's got her little beaver claws I don't know what they have on her cheek and she's like hmm you know thinking beaver thoughts yeah

0:43:58 Matt: You really should take a look at a lady but uh yeah yeah just a little hint of a smile too just an adorable little beaver so this sent me down a very interesting path this is we're going to talk about wildlife rehabilitation law. And I want to also thank the Commonwealth of Massachusetts for providing a document called A Citizen's Guide to Addressing Beaver Conflicts, which we got a link to.

0:44:39 Thomas: You know beavers don't get enough credit for being pretty damn cute actually and they're hard workers you know there's not a lot of animals are just you know they're just killers or murderers or criminals or whatever beaivers are just like no we're just keeping our head down we're not we're keeping our heads down we just we just uh we're Just laborers we do they we have a union we build dams and that's all we do okay

0:44:44 Matt: Are, famously. They, they are the second most destructive species on the planet after us, but you know, they, they do actually as, as the beaver page, that's

0:45:00 Thomas: That's fair but they do it with elbow grease a little thing called grit matt

0:45:06 Matt: Working hard. That's right. That is right. But they also are creating and preserving wetlands in Massachusetts. They're a very important species in Massachusetts. I don't know how many beavers you have in California. I'm sure you have plenty, but we love our beavers over here. Love our beavers so much that there was a petition that went out on change.org. And I'm going to check actually, as we're talking right now, because I want to make sure that I give you the number of signatures that this has amassed in the last couple of days. And I might as well link to the petition because this is a cause worth supporting. Protected Nibi the beaver from unnecessary removal. Right now we have 29,200 signatures with a goal of 35,000. We've got thousands of people signing up.

0:45:35 Thomas: It's not enough we can double that we can't really but sure

0:45:39 Matt: This adorable girl. So yeah, this is an interesting thing because I don't know, I hadn't thought about this too much. I love animals and animal law is not really something I have practiced, but I got to take a look at Massachusetts animal law this week because maybe the beaver was a popular topic in our home this week. Illegal in the state of Massachusetts, as it is, I think for pretty much everywhere for the general public to take in care for or treat wildlife. So just starting in that you can't just grab most animals and there's a, there's an exemption list actually in 321 CMR 9, which mostly amphibians and reptiles that you can just take out of the woods. But this is not legal advice. Check the list before you grab any animals. You have to have a permit for the most part to do that. So wildlife rehabilitation permits became a thing in the 70s with the rise of the environmental movement. And then most states began to regulate them. And I know I've been surprised to learn along different times. There are some states where you can take a raccoon into your house. You certainly can't do that here. For the the most part,

0:46:31 Matt: Yeah, I don't know.

0:46:32 Thomas: I need to look up these I need a look up what's what's the what animals I'm allowed to invite in my home and show basic hospitality to wow

0:46:39 Matt: Yeah, the penalties are pretty strict if you get it wrong. So yeah, you got to make sure. Also

0:46:41 Thomas: Like we'll find you 50 sticks that go to the beavers dam making uh general beaver dam making fund

0:46:47 Matt: The Beaver Fund. Yeah. Want to notice a a side side thing, under the Migratory Bird Treaty of 1918 there is a 10-page federal form you have to fill out if you're a bird rehabber because that's a federal issue. We're with the overruled regulation of beavers and birds. There is, of course, as always, a good state purpose.

0:47:03 Thomas: And don't rip the tags off your beaver if you do buy one a

0:47:07 Matt: That's a huge federal offense. But this one, honestly, I got to say, in this story, and I will actually tell you the story now, but it is a story in which it's one of those rare legal cases in which there is no other side, in which the government is just completely in the wrong. And that's why this petition has taken off. And it's the kind of of thing that Neil Gorsuch could have included in his book, except that it's not really worth including in Neil Gorsuch's book because I think it's going to resolve just fine. But what's going on here is we have an animal rehabilitator named Jane Newhouse, and she has a rehabilitation center in Chelmsford, Massachusetts. And they found a two-month-old beaver at the side of the road a couple of years ago, named her Nibby, took her in, and she's obviously a licensed rehabilitater. You have to take a test and...

0:47:44 Thomas: Licensed beaver rehabilitator or is it no wow

0:47:49 Matt: Specifically. Specifically.

0:47:50 Thomas: So okay you get your because I I feel like you a wide range of expertise you might need depending on the animal

0:47:55 Matt: No, there is. And there's a big test you got to take. And it's only $10 a year to be a rehabilitator, but it's a worthy cause. Is a lot of work. You have to really take care of these things and they want you to be licensed and permitted because obviously you have the potential to injure wildlife if you're not doing it right. These don't have to be vets, by the way. Better vote on errands. They just have to be people that Nibby is presently the only beaver in rehabilitation in New England. So she's getting a lot of attention. She has been a social media superstar, apparently. I wasn't aware of this because I don't follow a lot of animals on social media. Probably should. I think my social media life would be a lot happier if I just followed beavers. Nibby has had some trouble over the years because she's become very domesticated. And what's very funny, if you watch some of the videos, domesticated beavers still like to build dams out of stuffed animals and

0:47:58 Thomas: That's pay you to be a real realtor oh

0:48:39 Matt: Household items, which is very cute. And Jane Newhouse has been very concerned because there's a point at which under the MGL 131 Section 4, as wildlife rehabilitator, you're being deputized by the Division of Fish and Wildlife to take in animals that you're not supposed to have. So at the end of the day, the government has oversight over whether you get to keep these animals or not. So she knows she's coming up on a time when she's going to have to release Nibby the beaver. And as she said, it's very difficult to consider releasing her when she only seems to like people and seems to have no interest in being wild or bonding with any of her own species. They tried at one point to introduce her to a beaver from Rhode Island and it didn't go so well.

0:48:40 Thomas: That is really cute on beaver tinder

0:49:18 Matt: It wasn't a match.

0:49:19 Thomas: Sorry I should it should I should obviously timber of course on timber swipe right on timber I can't remember I think it's right swipe right on timber yeah

0:49:22 Matt: Timber. It's right there for you. Yeah. Not a timber match. There we go. Yeah, that's right. When there's only one other beaver in your area, you can't guarantee it's going to be a match. That's a risk. Sure. So Jane Newhouse, she applied under 321 CMR 212, which has an exhaustive regulatory scheme for different ways that you can get permits to have wild animals. Animals and she wanted to convert nibby to an educational beaver which is a thing which is kind of funny because one of the things she's saying is that nibby is bad at being a beaver so I'm not sure how much she can teach people about being a beaver but let's go with it because we all love the beaver uh

0:49:35 Thomas: I know totally story in my life no I don't know wow okay yeah it's like if aliens ever kidnap me for the purpose of putting me in an alien museum where I'm the model human I'd be like you don't yeah I'm not very representative like you gotta you know that's how nibby probably feels yeah okay I'll

0:50:16 Matt: Isn't there anybody else yeah and the educational beover uh educational use means a use as contained a course of training, basically for kids. You can take them into schools, which pertains to the acquisition, development, or maintenance of a person's moral, intellectual, vocational, or physical faculties, insofar as such a course or training should relate to fisheries or wildlife, ecological relationships, or the environment." So essentially, she just wanted to have this sort of display beaver that she could take to kids and show, and they could pet the beaver. It's fun.

0:50:44 Thomas: That's always great as a kid you know arlo uh the other day I think someone brought a, I don't know, a snake or something, which I hate because I'm just not a fan of snakes. I got nothing against them personally, but just don't really like them. And I don'T want Arlo to accidentally become a snake guy. And then I have to pretend I, I DON'T hate it. But no, they love it. Somebody brings us some animal to the school and it's a, it's A BIG THRILL. So if this can be Nibby's future, I'm, I'M fully supportive of this.

0:51:07 Matt: Well, not according to Mass Wildlife, unfortunately. They denied that application. So not only did they deny the application, but they let Jane Newhouse know that she was going to have to release Nibby into the wild and that it was time, that her time had come. So this created the uproar that we're now dealing with, the petition. And the petition led to a bipartisan effort in the Massachusetts government, which doesn't happen very often, as it doesn't in most governments, to try to save Nibbie the beaver and keep her to the point that the governor got involved. Maura Healey said specifically to the media after this started to take off, I can tell you this, we're going to do everything we can to protect Nibby. So they went to Middlesex Superior Court, people, and they filed an emergency injunction. I'm going to hold my tongue about the lawyer who filed this. I have some funny stories about him, but we're not going to talk about that.

0:51:57 Thomas: Want a hell of a teaser.

0:51:59 Matt: Maybe that's some bonus content at some point. Is very serious, obviously. It's a very serious issue, but it has completely captured Massachusetts. It shut down the government. I mean, at one point, there was a senator saying that she wasn't going to consider any new business until we had news about Nibi. They're going to be having a hearing on the morning that you're hearing this on Friday, because there's an emergency injunction in place right now. And we will find out, at least we'll find out maybe at the beginning of what Nibi's fate might be. But all that Newhouse is really asking for is to hold the beaver until the spring, because she's saying it's not safe to release her into the winter.

0:52:27 Thomas: Like literally, she's like, I just want, I want to hold, I wanna hold it.

0:52:30 Matt: Hold the paper. But she's telling that just based on the current state of Nibi's development, that it's not going to be good for her to be released into the winter in Massachusetts, that maybe give her a chance in the spring and she'll survive.

0:52:41 Thomas: Hey, can I ask a dumb question?

0:52:43 Matt: Sure.

0:52:43 Thomas: Why don't they just release her and then be like, oh, hey, a beaver. I'm going to now take this one, reset the clock or have someone else do that.

0:52:52 Matt: Well, I think she needs to be in a condition where she needs to be rehabilitated for the rehabilitative. You can't just grab a perfectly healthy beaver.

0:52:59 Thomas: If it's true that this is not going to be good, I mean, I feel like, again, is this being policed? How much resources is going into verifying the story of the rehabilitators about their beavers? I would imagine that would at least grant you some time and then they would be able to make the argument whatever argument there is now about how this is not good for the beaver I feel like that would also apply to someone who just picked them up and then you get the reset of the clock come to me with all your beaver law needs Thomas Smith beaver lot beaver at law no I don't know

0:53:22 Matt: Interesting strategy. Not legal advice to whoever is listening, but that is creative. Yeah. I also learned that beavers are a class of animals known as furbearers, legally. I thought that was interesting. It's like a whole thing. Furbearers. Yeah, Yeah, because furbearer. For animals that produce fur that actually has value.

0:53:38 Thomas: Fur fur that's not just a pun on four bears

0:53:48 Matt: Because they technically pelts or have always been So, injunction entered a couple of days ago until Friday morning, and we will see. Maybe I'll provide a quick update on Nibby the beaver. But for now, the order's in effect, and

0:53:47 Thomas: Oh that does actually make sense yeah yeah oh you're gonna provide any update on Nibby the beaver that happens Matt that's the commitment that you're making on Matt's footnote fetish that's new

0:54:09 Matt: Right. We can footnote the footnote.

0:54:10 Thomas: Now we're invested in this beaver so you can't just be like oh by the way a year ago this bever died and didn't tell like you got to tell us now we all want to know No. Okay. Sorry. I just want to make sure. So there's this whole battle to, keep the beaver from being released. I might've missed it. What is it still pending or is that, is

0:54:28 Matt: Hearing on Friday, so the day this episode is being released, we're going to have a little more. I think, honestly, this might be prime gavel gavel content at some point because yeah. It's very easy to get state court audio. We were talking about how. Yeah.

0:54:35 Thomas: The audio is going to be available. Oh, we're a hundred percent doing this. We are. Does the beaver get to testify? Do they put the beavers? Your honor, I call to the witness tent. And Nibby the beaver. The gasp.

0:54:51 Matt: We'll see.

0:54:51 Thomas: Okay. I can't wait. That was a lot of fun. Um, that is gavel gavel. I'm not, that's, that'S mandatory gavel, gavel now. So I'm so glad you said that. But, Thanks uh, for the coverage on how the Supreme Court has, uh. Ruined our ability to, uh., prosecute obvious criminals. That's awesome. Super cool. Super cool thing they've done.

0:54:58 Matt: Doubt. It's a damn shame.

0:55:10 Thomas: Let's, uh,. Let's maybe do something about that. Uh. Perhaps, everybody. All right. Thanks so much for listening. Once again, check out that lot awful movies, which is this month anyway. A lot awful weird owls and it's a lot of fun. Patreon .com slash law second tier and above. And maybe if you're a patron, you want to upgrade that pledge to get that cool content. Thanks så much for listening. We'll see everyone on Monday.

0:55:29 Matt: Hashtag save Nibby.

0:55:32 Thomas: Matt, I know I said, you're going to have to keep us updated. And yet here we are mere hours after we recorded that first bit with already an update. You tell me there's big news on the Nibi front.

0:55:43 Matt: We were recording. Yes, our governor has come through, the system works, everything is fine.

0:55:48 Thomas: Was this the beaver governor or the human governor?

0:55:50 Matt: This is a human governor who's learned that beavers are really good for reelection. So, Maura Healey, who I have no problem with, but has captured the hearts of people in Massachusetts and around the country, including mine. Beaver emoji, heart emoji. Didn't I even know there was a beaver emoji. Audrey. I's true.

0:56:13 Thomas: How many beavers are we not aware of? You know, like it's only the famous beavers that get this preferential treatment, you know.

0:56:22 Matt: And our transit system is still a disaster. And, you know, our homeless shelter has been closed for quite some time now, but this beaver is doing fine.

0:56:29 Thomas: We'll take the good news where we can get it. Matt's Footnote Fetish, everybody. This one has come to, for now, I think a satisfying conclusion.

0:56:35 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.

0:56:52 Matt: Talk about two really bleak cases without talking about a beaver.

0:56:55 Thomas: Oh, hey, a beaver. I'm

0:56:56 Matt: Social media life would be a lot happier if I just followed beavers.