When Elon Musk Violates Immigration Law It's Fine Though

Transcript

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

0:00:03 Clip: So, just a yes or no, you still do not have a plan? I have concepts of a plan. That is a damning non -answer. I'm not trying to make it about myself, Your Honor. I'm just trying to show his bias toward the defendant. Just don't make it yourself.

0:00:33 Clip: Something simple as a crack pipe, a used crack pipe. The rules were that you guys weren't going to fact check.

0:00:44 Thomas: Hello and welcome to Opening Arguments. This is episode 1082. I'm your host, Thomas Smith. That over there is real -life lawyer, Matt Cameron. How you doing? Doing it's

0:00:54 Matt: Hold. Hold. Two. Three. Four. And release. There we go. It's box breathing. I'd recommend everybody give it a try. Nice four count when you breathe in, and four count while you breathe out. Pretty good. Strong recommend.

0:01:02 Thomas: Terribly unprofessional you need to manage your stress before we start recording matt it get rid of the fascism then it won't help me so I so I breathe I'm perfectly calm I open my eyes there's still fascism it doesn't no just I'm calm and there's fascism that doesn't matter

0:01:18 Matt: Only in your mind. Don't know. If you haven't tried breathing exercises, they go a long way. I'd strong recommend.

0:01:34 Thomas: Speaking of going a long way I don't know why I'm doing that transition there it's It's the end of the month, so there's so much Smith family household content to consume. Gavel, gavel. Reminder, that is our podcast where we do trial stuff. We are almost done with the Trump trial. It is not currently available except on patreon .com slash gavel pod. But one had a great idea that since we're coming up on the end of the trial and we're going to go over the closing statements, why not also take a look at the opening statements and kind of compare and contrast, see where the trial went, see what the expectations were. And so not only is the final day of Witnesses, the incredibly funny day with Robert Costello, available over on Patreon .com slash SkyvelPod. It is essentially two days, like two half days. That is the end of the entire case. Not only is that available, also recordings of the opening statements are available for not only the people in the defense, but also the judge has some words in the beginning.

0:02:31 Matt: You enjoy just listening to people make promises they can't possibly keep, you're going to love this one. That opening is just really something.

0:02:38 Thomas: I, And if you're listening to my shows, you do enjoy people making promises they can't possibly keep.

0:02:46 Thomas: No, we did get all that stuff out though. That's actually out and it's really cool. I can't wait for you all to hear it. Have already listened to that one and they're enjoying the chaos that happened. If you remember that last day of Trump trial testimony was chaos.

0:02:59 Matt: Stuff.

0:02:59 Thomas: Really fun. Also that where there's woke, we're doing some election stuff as well, because, hey, I'm pretty stressed about the numbers and what it's looking like. Further look into, you know, is something wrong with the polls? Are Republicans juicing the polls. There've been some allegations about that. I Uh, want to take a look at them and talk about, you situation there. So that's on where there's woke. So, you who listen to my shows have a lot to listen to is the message there. Speaking of a lot to listened to, I'm really excited to get to today's show because, uh, we're going to talk about another something thing that's been stressing probably why you're doing the box breathing. Is Trump's like secret that he alluded to in the creepiest way, probably

0:03:35 Matt: Got to say, we have been alarmist. We've been alarmists on purpose because there's a lot to be alarmed about right now. But there's a point at which you're just putting a flashlight under your chin and doing a Halloween story. And that's what people have been doing on these election things a little bit. So I want to break down maybe about how it's maybe not going to be quite as bad as people are saying, or maybe we should just stop with the imagination and wait and see what happens.

0:03:54 Thomas: Okay. But I mean, it's bad if we just regular lose though, is my biggest worry.

0:03:58 Matt: Yeah, but people are coming up with these scenarios in which we might just like fancy lose and like a really weird and esoteric where, yeah.

0:04:02 Thomas: Fancy Well, I will be excited to learn, kind of fact from fiction there. And then we got to talk about everyone's least favorite immigrant, Elon Musk.

0:04:13 Matt: Big news about Elon that kind of put some of the dots together that I've been wondering about for a while about maybe how he shouldn't have ever become a citizen and possibly is deportable and

0:04:20 Thomas: I am full on MAGA when it comes to immigration, when it come to exactly one immigrant, and that's Elon Musk, I agree, you know what, find common ground these days, you now, full agree, Trump, with to exactly one immigrant Elon Musk now I don't agree anymore, after that, find common McGraw. We might as well, right? Bipartisanship.

0:04:27 Matt: One guy yeah I sure sure and no I'm with you I've been having the same thought but we've also got a tasty footnote at the end uh in which we're going to find out how the librarian of congress is going to solve mcdonald's ice cream problem that is absolutely Absolutely correct.

0:04:46 Thomas: I love a tasty footnote. Can't be right. Check your notes

0:04:54 Matt: You got away.

0:04:54 Thomas: Again. I'm sorry. You read it wrong. The Librarian of Congress is going to help McDonald's' ice cream. Okay. I Love It.

0:04:58 Matt: It's giving us ice cream. Yeah.

0:05:00 Thomas: Can't wait. All right. Well, we'll take our break, which we always take, and you can avoid those ads at patreon .com slash law and support the show. The other side of the break, we're getting into those stories.

0:05:14 Thomas: I'm excited that you've packaged this as possibly not something to worry about. But just in case people aren't aware, they haven't read the article, they didn't see the thing. What are we talking about with this secret that Trump has?

0:05:25 Matt: Let's break this down. So in Madison Square Garden last weekend, I'm sure everybody caught that there was a bit of a Nazi rally, like nine hours worth of MAGA hits and celebrities coming up on stage. During that, let'S play the quick clip here of Trump indicating to Mike Johnson, who was also there, that they had a secret. Good right yeah yeah

0:05:42 Thomas: Also there is Mike Johnson's that should be on his tombstone. That was his graduation quote was also there. Well,

0:05:52 Clip: Little secret, we're going to do really well with the house, right? Our little secret is having a big impact. Ian and I have a secret. We'll tell you what it is when the race is over.

0:06:00 Thomas: Do you have a secret?

0:06:05 Matt: So okay straight up yeah

0:06:07 Thomas: They boning? No that

0:06:08 Matt: Would be amazing october surprise be so good ultimate uh but no it turns out okay I'll tell you straight up I think he's trolling that's that's my first read on this I think she's troling I think that's her first read I think he just wants us to sit around and talk about what the little secret might be and do kind of what a lot of people are doing this week it's just kind of like sitting around thinking about the possible scenarios that the house might be able to do uh but the house doesn't really have that much to do with it as we're going to talk about. And I think that a lot of this is really overblown. And again, I'm alarmist. I think MAGA is fascist. I think we should be aware of that. I Think we should be ready for anything. And certainly if things start to develop, we will talk about them. But I don't think there's a lot of point in sitting around and thinking about every possible scenario. I think it's worthwhile to look at the weaknesses that are remaining in our system right now after the last round of reforms in 2022. But it's not really helpful to think about everything that could possibly happen right

0:06:16 Thomas: We know of yeah yeah yeah here's

0:06:57 Matt: Now. Let's just kind of wait and see.

0:06:59 Thomas: Have a bunch of weapons and ways they can cheat they're not really that secret is the thing so we do kind of know them and I'm sure you're going to to tell us yeah

0:07:03 Matt: No we can know them yeah yeah done some thinking about them that's right I also want to say before we get started on any of this that we have better lawyers we have smarter lawyers and I think we have just overall more competent and ethical lawyers than they do for what that's worth and we have a bunch of people ready to go on this too it's not just like they're the only ones with lawyers so I think that's Worth mentioning

0:07:22 Thomas: But they're the only ones with a supreme court so

0:07:24 Matt: True too yeah and be clear, Mike Johnson, of course, did later say, well, first, his first statement to the New York Times was, by definition, a secret is not to be shared. And I don't intend to share this one, which is extra cryptic. And then a couple days later, he's at some small rally. And he's like, well. Well, you know, that was all just fun. Nothing scandalous. We're having a ball with this. The media, their heads are exploding, which of course, you need to trigger the lips. It's like a fun thing to do. But then he says, the thing we have is about, it's a get out the vote. It is one of our tactics on get out of the vote, which is not what Trump was talking about. He was not talking about a little secret for getting more votes, getting people to the polls.

0:08:01 Thomas: House of representatives has a little secret that we're not going to know about and but it's a get out the vote thing that doesn't seem right

0:08:08 Matt: We are going going to get more people to the polls than the other party that's our whole secret yeah right we're going to kidnap them and drag them to the poles but I don't know but all this conjecture is actually hilarious to us that people are apoplectic about this it's it's our get out the vote strategy says that's what we're talking about and it's almost a tongue -in -cheek thing yeah it's very funny to joke about throwing an election everybody enjoys these jokes yeah

0:08:09 Thomas: But in secret yeah it's also just the the what have become I you know it's like every so often we should recognize how far we've fallen where isn't the job of politicians to be like hey constituents what do you need and how can I help you instead it's uh we love that everyone hates that we did this and we're trolling you and there's just like high school bullies now and is weird that didn't used to be how it was yep

0:08:46 Matt: We hate you. Yeah, no. I also remember back when politicians were calm and reassuring and trying to make us feel better about things and not, you know, get people amped up. But here we are. It's 2024. Elie Mestal wrote a piece in The Nation. I do like Elie Mistal. I think he's generally got a good perspective. I thank that this is clickbait. And I'm just going to break down why that is. The piece is called That Little Secret Between Trump and Johnson. Here's what it could mean. This is in The Nation a couple of days ago. We'll link to it. And on the first read, this is pretty terrifying. And this is something that people have been sharing a lot. There's been a lot of commentary about it this week. And I haven't really seen the pushback on why this is honestly kind of ridiculous. So we're going to get into it in a little bit. I do think that some of it is worth paying attention to because certainly we should be watching these people and we should be ready for anything. But he starts off with the idea that obviously what the Republicans really really want to get us into is an electoral college tie. And the chances of that organically are, I've seen about

0:08:59 Thomas: Very low

0:09:41 Matt: One half of 1 % right now. Yeah, literally one half, 1%. And just to be clear, if people don't know under the 12th amendment, if there is a 269, 269 tie, and I should be clear that there has only been a 261, 262, 261 tie possibility since 1961, when the 23rd amendment gave DC the electoral votes and created the possibility of a tie. So we've only ever had allowed to use the 12th amendment once and that was in 1824 and there were four candidates we don't have that anymore that's just not going to happen we're going to have two two candidates for it seems like yeah that's at this point when you only have two parties it's either going to be a tie or a win um that case the house gave it to john quincy adams but again we're a two -party country this is just extremely unlikely that you're going straight tie there are some freak scenarios I'm not a statistician I don't care if it happens it happens we'll talk about it but the chances that it actually happens are so low so in that situation however and this is something they were trying to drive things to in january 6 as well the house delegations line up and they cast one vote each it's very

0:10:35 Matt: Strange it's not like each member it's just a stupid arbitrary thing I think it's just like 3 a .m during the constitutional convention or whenever whenever whenever they wrote this uh amendment rather and they're just like yeah let's just do it this way and

0:10:35 Thomas: Stupid it definitely has a feel of like we've already kind of done the other stuff like let's do a different sort of tiebreaker like you're designing a game like this will be a sudden death overtime but each state gets for some reason one vote which makes no sense yeah

0:10:51 Matt: Different system right just a little mini game where you line up your house delegations and so right now even after if we have more, technically speaking, there's still going to be 26 out of 50 House delegations will be majority Republican, even if we flip a few seats. Because they're majority Republican, they'll get to cast that vote. So you'll get the scenario of 26 out of 15 electing the president, deciding who the electors are. Excuse me, let me say that again. Electing the President in lieu of the electeurs, just like doing a sudden death, like you said, you know, just end of the the soccer game where you just take a shot on the goal so uh he's saying is not very likely we understand that to be the case and he's making an argument they don't have to get there that they don't having to rig it in such a way because you know you can think of different ways they could try to rig get to get to a tie so they could reach to that point and he saying that the states will play games to get their and chain events he's presenting I'm gonna suggest suggest here were easily overcome by the Electoral Count Reform Act, which was the 2022 reform to the Electoral Account Act. I think that if the Ele electoral Count Act of 1877 were still in place the way that it were, we should be a lot more worried. But we did actually

0:11:57 Thomas: Yeah

0:11:57 Matt: Install some pretty good guardrails. There's good safeguards now. But let's just talk about Mistal's chain of events here. And this is what's been freaking people out this week. So I think it's just worth getting into. The 12th Amendment provides that the winner is the majority of the whole number of electors appointed. So the denominator is the majority, excuse me, the denominator is the whole number of electores, like whatever pool you're working from. And Mistal is coming up with a situation in which a of how many electors show up. So somehow we're able to reduce the pool of electeurs, but still have the same sort of majority numbers. And he's saying we don't have to use fake electors like they did last time, that they could just convince legislatures and governors not to submit their slates before the deadline and just delay things out and kick take everything past. And there's two deadlines built into the ECRA. The one of them is for the electors to meet on the 11th, and the other one is for them to have everything certified by the 17th. He's coming up with these ideas that, example he gives is that if Harris wins 270, but Wisconsin refuses to submit the state's 10 electors by the deadline. So the new total number number of electors becomes 528 rather than 538. And then Trump just needs 264 to get to the majority. And so you're just kind of playing with the numbers and whittling things down and making it easier and easier. So at this point, he's saying that Mike Johnson could play along and just say, well, the deadlines are passed. These electors aren't coming in. The states had their chance to get things in, but they didn't do it. And he could extend the deadline. And obviously, Mistal is saying that wouldn't happen. Nancy Pelosi would have extended it, but Mike Johnson Okay. So I'm a little unclear about what he thinks is going to happen at this point, because it takes a joint session on January 6th of the House and the Senate, presided over by the vice president. Mike Johnson may not be in the picture at all because he may be out of power on January 3rd. The new Congress will be sworn in between January 3nd and January 6th.

0:13:43 Thomas: Right because the new congress is sworn in before the president right

0:13:46 Matt: And they'll be coming in as a joint session as a new Congress. And so the house clerk will be in charge until there's a speaker elected and they won't get that together until then. But presumably if it is the Democrats, it'd be Hakeem Jeffries is the minority leader right now. And this is a session. Mike Johnson at this point, I think if I understand Mustal's argument correctly, he's saying that because he's allowed them to blow these deadlines and states haven't submitted these things, that the new Congress has to just accept whatever the electors are, whatever's been certified and sent up to them at that point. And the Republicans could game it such that you don't have enough certifications to actually be able to carry it. So don't really understand, to be honest. I read this several times. The first time I read it, okay, I thought maybe there's something to this. And then by the fifth or sixth time, after I read through the Electoral Account Reform Act again and thought about how this all worked and looked up about how it's been applied. Now, this is the first real test run of the ECRA in a presidential election, obviously.

0:14:38 Matt: So there may still be holes and leaks that we haven't thought of. Maybe things could still happen. But a couple of things. The Electoral Count Act deadlines are not the same as certification. Certification they're just deadlines that can be extended by congress uh also there's provisions built in uh 3osc 15 in which uh can come back federal judges can be like hey where are those certifications uh would you like to get those in the archivist can come back after the after the deadline and say hey where my certifications because you're supposed to send them into the archivalist for official inclusion um be recognized and passed on to the joint session. The deadlines are not like, I think Massal is treating them as if they're in stone and they're not quite like that. One of the reassurances that I have here is that, you know, sure, they have to be certified by the governor. They have to meet. These are shells that are in 3 U .S .C. 15, all part of the ECRA and all partof these reforms to try to eliminate these different places where there were weaknesses. So the shells mean that you can court and get a mandamus if any of these people refuse to do their jobs, including the governor. You can get a federal court order. It's very strong. And it's all built into the ECRA to allow you to get review as quickly as possible. And if there's any challenges to the electors, if there'S any challenge to fraud or process or anything else, there'S a mechanism built into the ECLA by which you go in front of a panel that'S going to be made of two district court judges and one circuit judge. And they're going to evaluate this claim and they have to do it before these deadlines. It'S like an extremely expedited schedule by these panels. This is all considered. But Stahl doesn't get in any of this. I'm not sure if he's not familiar with the ACRA, or if he just doesn't trust these things, or maybe he doesn't dress the judges. I don't think we're at the point yet where we can assume we have that many bad judges that you're going to have them allow them to pass on all this. This um again we cannot count on the good faith republican party but

0:16:17 Matt: We do have enough brad raffensperger's and people like that uh and like the michigan elections board has said very clearly that they are not going to have any tolerance for this the state election officials have specifically said that if the canvassers who are responsible at the county level refuse to certify um the law law is clear in our responsibility that they're going to make everybody understand that any attempts attempts to refused to certify results will be futile and they should not be deceived by it. It's like, this is from Republican state officials in Michigan. Maybe they mean it, maybe they don't, but you know, I think that's for now, that's, that's pretty good. 35 state officials tried to refuse to certifying 2022 and they were all overridden. It didn't work. And in fact, two of them in Arizona were actually indicted for conspiracy and election interference because they were so flagrant about it. So again, again, as long as you have a judiciary that we can trust. And again, that may not be. Maybe a few election cycles we can' trust the Judiciary the way that we now. But for the most part, I don't think that federal judges want to be in a position of upholding a completely lawless refusal to certify elections. And these things are built in. They're shells, right? So the electors have to be, they shall be certified by the governor. They shall meet on December 17th and vote. And if these things don't happen, there's pretty strong safeguards built in to make them do that. Mistel doesn't get in any of that. And I think that's telling somewhat. So, you know, he's putting all this power on Mike Johnson that just doesn't exist, fortunately. It is still a joint session. And you can't just have Mike Johnson unilaterally do anything at that point when it's in front of Congress. Also worth mentioning, just in case we get another sort of rogue Republican administration, that the Electoral Count Reform Act made it very clear that the vice president's role is completely ceremonial at this point, that there's no question that the price president has no power of these votes just in case that ever comes up again for any reason.

0:17:54 Thomas: Yeah. I'm sure Mag will be like, we still want to hang Mike Pence though, just cause.

0:17:57 Matt: Right. Just, yeah. You know, in article one section five of the constitution allows the house to set its own rules on these things that can be flexible if it needs to be. At the end of the day, Ira Goldman is an interesting follow on, on Twitter. Some things to say about this. He's an attorney who's done a lot of parliamentarian work. And he was actually suggesting something I hadn't thought about, which is that it actually would be, this is very strange to think about after January 6th, but it would be legitimate for Kamala Harris electors to meet. If it were certain that Kamala Harrison were actually lawfully elected in that state, they could meet and submit something purporting to be certified election results. And that sounds a lot like what the Trump people were doing with the fake electorate scheme, but It wouldn't be because what they'd be doing is what the trump electors properly did in Pennsylvania to Mexico which is that they used language saying that the electors would only be in place if Trump won his pending challenges they said this is a contingent thing right so if it works out if the courts say that we're supposed to be here that these are our certificates see

0:18:53 Thomas: Like in golf when you hit a provisional, when you might've hit it out of bounds.

0:18:56 Matt: Have a it's

0:18:57 Thomas: I love just using sports stuff with you and you're like, yeah, sure, yeah. When your golf stick and your disc, I don't know.

0:19:02 Matt: Didn't know there was a provisional engulf so

0:19:07 Thomas: In normal people golf where it's like, it takes too long to go check if your ball is out of bounds and then go back and hit another one. So you hit a provisional ball. Then if your balls inbounds, you discard that ball. If it's out of bounds, you got to play it. That's exactly what you're talking about. I didn't just bring it up arbitrarily, right? Right.

0:19:13 Matt: So all that makes some sense but the problem in michigan and the other places where people in georgia where they've been charged with crimes um we talked about the georgian one not too long ago is that they said that they were the duly elected and qualified electors so as long as they don't do that you can still send up the slate now the whole thing is with the ecra though is they are specifically trying to take any power away from congress and leave it in the courts to determine which things are being lawfully certified.

0:19:46 Matt: So if you have a situation in which something has not been lawfully certified and you have to object on that reason, that means the courts have failed pretty badly. Something has gone wrong because it should have all been sorted before it got to Congress. And on top of that, for the joint session, another thing that really made things easier on January 6 for the bad guys was that it only takes one objection from the House and one objection from the Senate in the joint section to trigger an objection process. And after the ECRA, fortunately you actually have to have 20 % of the House and Senate agree on an objection if there's going to be an objection to one of the certifications that's right in here just just out yeah and that point if once the objection is put in it has to be a majority to sustain the objection so this is pretty serious like it's not that easy to just say we don't want to see these you know

0:20:19 Thomas: I wish we'd written in and it can't be Ted Cruz. Like just, he doesn't count.

0:20:30 Thomas: Yeah, my memory is that that bill did not fix everything. And there were there There were things we wanted in that bill, but I do remember that it did fix a lot and it did make me feel slightly better. And this is one of those things.

0:20:41 Matt: Did yeah if we're we still rocking with 1877 law on this election I'd be very concerned, but we're doing a little better at least.

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0:22:17 Matt: Also the question about what if and how this gets to the Supreme Court, and that is a longer conversation. But Hassan, the election lawyer that we talked about last time, he did some interesting analysis about the Morby -Harper holding, which was the independent state legislature theory. Now that was swatted down by the Supreme court last year as it regarded redistricting. But there's some questions based on some language in Bush v. Gore that suggests that maybe there might still be some federal court review because pretty much but just this time just you know can't look at it again I

0:22:42 Thomas: Is that language we win? Ha ha ha ha. Because that, yeah. Yeah. They're like, what if that applied to next time?

0:22:53 Matt: Believe actually as you mentioned morvey harper was the first time that a majority decision cited bush v gore since it had come down 23 years before that so yeah it's a little weird but but holding though was that when state legislatures prescribe the rules concerning federal elections they remain subject to the ordinary exercise of state judicial review. But there's something in the Kavanaugh concurrence that's sort of suggesting that based on what he sees from the Rehnquist language and Bush v. Gore, there's a possibility we could still get federal review out of this, that there might be a path to federal court. And that's what I'm concerned about, of course, is if we get one of these challenges that the Supreme Court finds a way to take in a crucial state, we could actually have an issue. But that's apart from the ECRA. That's just the Supreme court being the Supreme court. So, that's not even something that Mistal gets into. I was just thinking about other ways this could go wrong. And especially anything that involves right now the Supreme Court reviewing

0:22:58 Thomas: That's right. I remember that now. Yeah. Yeah,

0:23:37 Matt: It could go right. We know that. So, is an interesting read, the Elie Mestal piece, but the more I thought about it, especially in light of the actual ECRA protections, I'm the system always works or that we can count on everything to work the way it's supposed to. Certainly, I don't count on Republicans of good faith in these positions, but there's enough built in that we don't have to.

0:23:37 Thomas: Obviously. No, of course. And, and, know, there's a certain number of people who will just try to out cynic and say the whole thing's going to be wrong and not work at every turn. And they might be right, but those people don't ever count their misses. So it's like, if every time they say, nah, it's corrupt, they'll steal it. It's like yeah. Worthwhile to worry about that when we need to worry that. But if you just say that every time that's, it not really actually helpful. So I appreciate you digging into the details and looking at, you know, how this could actually happen. Sounds like this article, maybe not that great. Didn't quite do it. Yeah.

0:24:29 Matt: I think it got a lot of attention because it scared people. And it's that time of year when we all want to read horror stories and get scared. But yeah, I think we can safely put the flashlight away on this one at least. And again, I I'm completely correct. This is one, usually I don't mind being wrong. I really hope I am not wrong on this one. But primary take on this is that Trump was trolling and that Johnson was happy to go along with the troll. But if they do have some some kind of secret plan. I don't think it's to somehow... Maybe that's the closest thing, is finding some way to get the states to reduce the total number of electors that are sent. But

0:24:58 Thomas: Here's the other thing just as out who we know trump is kind of feel like this quote -unquote big secret would be something that we all already knew because like that's always hey no one knew no one new x thing no one what was the one he said oh when he was like yeah frederick douglas getting all whoever knew get a lot of press these like everything he comes across god so good everything he becomes across is new if he hasn't seen it it's brand new and I feel like maybe someone told him the ties thing although I don't know I feel Like he would have known that from last time, but that's what it feels like. Like, oh, okay, if there's a tie, then blah, blah, blah. Or, well, now they say that, maybe not. Maybe it is some stupid plan that they think they can do, but they're not the best students. Not on the right. They'RE not the best students, so maybe they are misreading this law, or maybe we're screwed and don't know it. I don't know. Like you said at the beginning, I trust our lawyers a little more than theirs.

0:25:48 Matt: Could be but sure uh mean they had john eastman who's now been disbarred and disgraced uh and you know we'll go through his plan honestly his plan could have worked under the previous version of the eca uh was a long shot but it certainly could have work but I I just don't see and again maybe there's going to be some equivalent of the eastman memo that comes out in the next few months where we see this big big secret plan. And there's certainly, I'm not a parliamentarian. I'm not an expert on how you get things through the House and Senate, but I just don't see this particular one being the way that they do it.

0:26:20 Thomas: That's a relief. Thanks so much for that breakdown. Down. Appreciate it. One less thing that I have to worry about for real.

0:26:24 Matt: That's how I felt. Yeah. So So let's talk about something a little more fun.

0:26:30 Thomas: Is it fun? Okay, good. Elon Musk is not usually fun. He's not my idea of fun.

0:26:34 Matt: Not usually, but he's been caught in a pretty serious lie. And I think that's worth highlighting. And it's a lie that has a lot to do with the stuff he's talking about recently. We all know, I think Elon Musk, especially since he took over Twitter, and especially within the last year or so, has been obsessed with immigration, talking all the time about how it's time for mass deportation, about how people have to follow the rules, about how we need more legal immigration. He's been fully behind great replacement stuff. He's been talking about how the Democrats are bringing in undocumented people to vote, the whole thing. So he's gone full MAGA on immigration, especially. So that was why I was especially over the weekend when the Washington Post the was led by my old friend Maria Cicchetti who used to write for the Boston Globe continues to do great work at the Post reported along with others that Elon Musk had registered at Stanford to maintain a student visa but never actually attended classes at Stanford and when you start to unravel this it gets pretty interesting seems like a pretty credible report and for what it's worth it's consistent exactly with what his brother said in public in 2013 so let's play that yeah

0:27:32 Thomas: Like, oh, we did this reporting. Oh also it turns out his brother has said it already, but you know, we still

0:27:37 Matt: Top

0:27:37 Thomas: Did the reporting. So, uh,

0:27:39 Clip: Fact, when they did find us, they realized that we were illegal immigrants. Well, I mean, you know, I'd say it's a play area.

0:27:49 Clip: We were sleeping in the office. We didn't have a car. We had one car, but the wheelchair fell off.

0:27:55 Thomas: Wow. I can hear that he has the same accent as what's his name? Trevor Noah and that his brother does, but I've never ever heard that out of Elon I don't know Elon has like a different accent am I wrong that is weird

0:28:00 Matt: It's very strange yeah it'S like a weird hybrid yeah uh but there you go so you know obviously Elon is very upset that Kim Kimball is saying this in public but uh he's like no no it's a gray area it was fine but he knows full well that he was out of status and I'll talk about what that means and how he was a status status because I think it's worth filling these blanks in. And I wouldn't usually care that much about what I consider to be a fairly minor immigration violation. It's a minor immigration violation with major consequences, or it should have if you weren't Elon Musk. This isn't the kind of thing I would harp on about a normal person. It's certainly the kind thing I defend all the time. But This is Elon Musk, and this is somebody who is an absolute hypocrite on so many different things, but especially on this one. I think it's worth really pointing out how that is. So I went back and looked through the history of what we know about Elon Musk online, and I found some whys straight up. We'll talk about those. But there's a defamation case, Eberhard v. Musk in 2009, when the co -founder of Tesla actually sued him because he had referred to himself essentially as the sole founder of Tesla. He sued him for defamation over this. And so Martin Eberhart,

0:29:05 Matt: Oh

0:29:04 Thomas: Just FYI he's always been a liar Elon has always been this isn't new he's always been alive gee

0:29:08 Matt: About everything. And his education education on top of everything else, his actual educational history. He's openly lied not only to the public, but to the SEC, as we'll get to. Martin Eberhard, in the course of this discovery, details details how he has been lying about his educational history as in 2009, so we have some kind of a basis before really understanding completely what's going on with immigration. That quote from Kimball was in 2013 routine when they're in public. And he's just like, yeah, we were undocumented for a while. And that's the kind of thing that perks my ear up. Elon came to the US to attend UPenn as a junior in 1992. And He didn't actually finish that degree. He told people he did. He said, he told people publicly that he did let's play a clip of that real quick.

0:29:47 Thomas: It sure is easy to find places where he's lied that's weird uh

0:29:52 Matt: Way too easy.

0:29:53 Clip: Really depends on what somebody's goal is. If the goal is to start a company, I would say no point in finishing college. In my case, I had to. Otherwise, I'd get kicked out of the country.

0:30:06 Clip: So that was important. I thought you went on. You got a master's degree as well. I came at Silicon Valley to do a PhD at Stanford in applied physics and material science to work on ultracapacities for use in electric cars. And that's what I was going to do, and then I decided to put that on hold to start a company. But since I already had my undergrad, I could then get an H -1B visa and that kind of thing. So the H -2B visa requires a degree.

0:30:29 Thomas: Very

0:30:33 Matt: So correct. An

0:30:33 Thomas: Interesting it's like he knows all of the elements of the crime he's committed.

0:30:37 Matt: Right. Really spelling it out. It is true that an H -1B requires a college degree. It is not true that Elon Musk had a college degree in 1995. He's just openly lying about that. Yep. No, he got his degree in 97 and he actually got both degrees in 97. a BA in physics and a BS in economics and he finished them both in 97, he did not receive an undergraduate degree in 1985. So just off the bat, he's lying about something because he knows he needs to pretend that he had an H1 at that time. An H1 one would be a pretty standard employment visa for high skilled tech workers especially it's it's used in all kinds of different high skilled fields

0:30:40 Thomas: Well, that's, there's the lie. Yeah.

0:31:11 Matt: Um you we just know off the bat that's not true and he also as I said he put that on his sec filings sec that when he was in the board of directors he received received a degree from UPenn in 1995. And UPenn has confirmed that he completed both his BA in physics and his BS in economics in 1997, and he does not have a degree for 1995. Very important. So -1 visas are strictly tied to your academic program. And what he was saying in that clip was when he went to Stanford originally, he was going to go do this physics degree and a PhD, and that he was gonna do this on a J-1. And he was like, I don't know, I'm not gonna do that. And what did instead was he dropped out of Stanford after two days, and he founded the startup Zip2. Now, again, nothing wrong with dropping out of stanford plenty of tech guys have done that it's just unfortunately when you're a non -citizen your j1 visa is tied to your academic program and the moment you drop out of classes you're done you don't have a visa anymore you

0:31:55 Matt: Got 30 days to leave the country and also your employment has to be authorized through your j -1 program and it has to be related to your program remember he's getting a phd in physics he's not getting a phD in computer science so they wouldn't have approved his tech startup as something that he could have done in what's called optional practical training, OPT. It's completely unrelated to physics and it's his own startup. Now I'm a little more sympathetic to this because I really believe there should be a startup visa. There should be an entrepreneur visa. It doesn't exist.

0:32:21 Matt: And it's really a problem for my clients. We work with a lot of people here in the Cambridge area that are trying to start businesses that are getting involved in companies and they want to share and you can't sponsor yourself. And I really think that you should be able to, if you have, if You're working with it, you should basically, you should build a business plan to immigration and say, this is what I got. Had. These are my qualifications. You could have people write opinions saying this looks like a good business plan. This could work. And that would work, but that's not how it is. So you have to stay on your academic program while you're getting your PhD and you have to work in a related field. He didn't do either of those things. And this

0:32:22 Thomas: Interesting. Sure.

0:32:53 Matt: Was all in 97 at this point.

0:32:54 Thomas: But Matt, what are rules when a white person is breaking them? You know, like what? What are they really when

0:32:59 Matt: Wealthy South African with emerald mine money in his pocket.

0:33:03 Thomas: It's just it's just paper.

0:33:04 Matt: So that's right. That's right? In 95, at this this point, again, he has dropped out of Stanford. He is not lawfully in the United States and he is not lawful employed. And zip to the board member becomes very concerned about this because they say, we don't want our founder being deported. Their immigration status was not what it should be for them to be legally employed, running a company in the U S like they knew this, the board was aware that the musks were out of status. And it was a major concern for the investors because they, you know, they want to try to go public here. And so they got a funding agreement that specifically said they had 45 days to figure this out. And so that meant everybody understood that they were out of status. So you've got two distinct violations here. You've got your failure to actually participate in the J -1 program that was sponsoring your visa, and then you've got unlawful employment. 245(c), either one of these things is a hard bar to residency through employment. If you've ever been found to have worked without permission, if you've ever been

0:33:04 Thomas: It doesn't matter. Wow,

0:33:57 Matt: Here without permission. Yeah, you can get a waiver potentially, the hardship waiver with your family, but there is no general way to just get around that, no matter how qualified you are. And so under normal circumstances, under the enforcement, the way that it is now, not as of 95, 97, when he was kind of going through this, that should have been the end of his immigration pathway. J -1 visas are very strictly enforced right now.

0:34:17 Thomas: Elon Musk could have been averted. We We could have avoided this whole Musk.

0:34:21 Matt: He could have, yeah, could have been denied residency, could Have been denied citizenship, and he could have have been deported, frankly, over this.

0:34:29 Thomas: It is complicated to have feelings of like, dang, I wish they deported this guy.

0:34:36 Matt: Me about it. No, it's of thing where it's kind of a technicality and going into Zip2 and sticking with the path that he was on allowed him to sell it for $300 million in 99, sets him up for the rest of his career, makes him who he is because he spent that time out of status without working lawfully. Who knows what would have happened if he'd finished his PhD at Stanford instead and gone through this whole physics thing and missed out on all this the late 90s tech boom um know it could have been a whole different thing for him so that really benefited him as it often does for him to go to status and my understanding of reading this it seems like he might have been out of status for about a year which is a pretty big deal that's a lot of time uh no there's no statute of limitations because he's a citizen and he lied to get his citizenship? That's the other part of this. It's a great question. Did want to talk about denaturalization because you can have denaturalization proceedings initiated under INA 340A. The U.S. attorney will initiate those proceedings based on a finding of fraud or misrepresentation specifically under 340 A. There are other ways that you can ever naturalization taken away. Obviously this doesn't apply to people that were born here, but if you naturalize, you were doing it after going through an exam where you swore under pains and penalties of the perjury, that everything in your application is correct. And one of the things you're doing when you confirm before you go through naturalization, they're kind of their last look at you before you're somebody that we can't deport. Have to swear under Payne's Penalty to Perjury that you have never committed any kind of fraud or misrepresentation to get to the place where you are now, immigration -wise. And they have to be able to show that was both a willful and a material misrepresidentation. And material doesn't even mean that it would have made the difference, but just that it Would have been important for the analysis. Like as a matter of discretion, it would be important to know that you'd lied about this, you dropped out of your J -1 program. This is, again, I don't want him to be denaturalized. I don'T want him deported.

0:35:09 Thomas: Imagine people would be wondering, is there anything to be done about this now or is it like statue of limitations oh I do I do well

0:36:18 Matt: Maybe this one guy, but typically too, I should say denaturalization proceedings were vastly expanded under Trump. I think he doubled the size of the denaturalization force. They made a big thing about it at the time, but they still only do it for people who are like war criminals, you know, or like seriously, like if you lied about killing a guy or something. Thing yeah it could be it's true it's true that's

0:36:33 Thomas: He might be there's the starlink stuff and he's not definitely not a war criminal I don't know he's

0:36:41 Matt: A future war criminal maybe he's on his way that's right that's America's next top war criminal so

0:36:42 Thomas: An aspiring war criminal yeah you can get a war terminal visa though a business plan here's my war crimes plan and uh and in the the trump administration approves and they're like that is a good war more memo really

0:36:55 Matt: Want to contrast this with a couple of other famous examples of people that have definitely committed these kinds of violations both both also White immigrants so So we've got Arnold Schwarzenegger, of course, who admits in his biography that he made more arrangements to work as a bodybuilder before he came on his tourist visa. So that's a huge problem. He came in in 1968. I didn't realize he'd been around that long. Just agreeing to work on a tourist visa, let alone working on a terrorist visa, but having that agreement ahead of time before you come in the country is pretty bad. You're really not supposed to do that.

0:37:23 Matt: Yeah, because tourist visa you're not supposed to get paid. You're allowed to receive some compensation if you make an appearance or something, but you can't get a salary. And he had agreed to a salary

0:37:27 Thomas: Gotcha gotcha so that means you're getting a visa under false pretenses essentially

0:37:34 Matt: And that you're violating the terms of it when you get here by getting paid. And we know from his biography that he said he did this and he didn't receive his H -2 employment visa until about a year later. So again, there's this gap where he's definitely working for pay. And that's the same thing as with Musk, where that should be an instant disqualifier for residency and for citizenship in the future.

0:37:53 Thomas: We could have avoided his governorship of california too god this is this is complicated because now I'm like well maybe we should tighten up on these policies yeah

0:37:56 Matt: Well, look who we end up with. There was another one too while he was running for governor. I didn't know this. I knew about the bodybuilding one, but he bragged in a Spanish -only campaign that while he was on his H -2 that he set up a bricklaying business, which is completely illegal.

0:38:03 Thomas: Unless

0:38:17 Matt: He was here on the H-2 for bodybuilding. You're not allowed to do other kinds of employment. It's just like with the J -1. It has to be cleared in your field. And so this would have been side income, unlawful employment. So he's admitting twice over to unlawfulness employment and possibly unlawfully status from what I understand about the original entry.

0:38:32 Thomas: Unless he's like, well, the bricks are part of my workout. So, yeah, a byproduct of bodybuilding. Yeah.

0:38:36 Matt: It could be, yeah. Make that argument. Why not? If I had to defend him, I'd go for that. Again, somebody else under today's standards wouldn't have made it. And I meant to mention before, J -1 enforcement has gotten much harsher since 9-11 especially, and he was benefiting from the pre-9-11 immigration regime. And I've seen them track people down in places like Vermont. They will come for you. If they know you've overstayed your J -1, they will send somebody out from Boston driving six hours to go find you and track you down, even though you don't have a criminal record or anything else, just because you've overstayed the J - 1, because they're so concerned about that. I'm sure you know that almost all became something they really were looking out for. Only a couple of them were J-1s, I think, but J-1 and F-1 are the two major student visa categories. Categories. So the other one I want to talk about was Melania Trump. You might've heard she had a very shady immigration history and

0:39:22 Thomas: You're not making it easy for me to continue to be on the left on immigration.

0:39:28 Matt: Yeah, no, I'm with you.

0:39:29 Thomas: Could have avoided her, too.

0:39:31 Matt: Other way to look at this too, is it's so common to commit immigration violations. It's so coming.

0:39:35 Thomas: It's true. We don't we don't know all the good stories of people who we would want here. You picked some at least two of the worst examples and one pretty questionable example that is really like. And that's and that's why we don't want to be like the other side that takes single stories and tries to make policy out of them, disregarding the well -being of so many other people. And I mean that seriously. But, oh, boy, you do make it hard.

0:40:00 Matt: Yeah. And it is, I mean, I've met hundreds of people who've overstayed their visas or worked unawfully who are otherwise absolutely model citizens and absolutely deserve a chance here. And I think this really does highlight when you're talking about people you've heard of, here's like three celebrities that you've hurt of, uh, all had pretty serious immigration violations and got away with it. And these are, you know, and, and Melania Trump happens to be married to somebody who spent years and years and hours focusing on the people who committed one immigration violation of coming across the border. But arguably overstaying a visa is actually worse than coming acrossthe border, uh depending on who you ask. Melania One announce at the time came to the U.S. August 27th, 1996 on a tourist visa, and she got her H -1B work visa on October 18th, 96. So there's a couple of months there where she wasn't supposed to be working. And the Associated Press did a pretty thorough investigation that we'll link to. It's actually very well documented. And they determined from the receipts and information they reviewed that she was paid for 10 modeling jobs in the United States for $20,000.

0:40:59 Matt: This was in 1996. 96. It's pretty good. For the seven weeks before she had legal permission to work, she had those contracts and was paid $20,000. That's huge. That says a really big violation. That's something that would absolutely get you denied residency. Now, as somebody married to a U.S. citizen, she would have been eligible for a fraud waiver. She would've had the opportunity to say that not granting the waiver would cause extreme hardship to Donald Trump. Now they say that out loud, that's kind of funny.

0:41:23 Thomas: Go down. Trump, is this true? Nah. Nah. Yeah.

0:41:26 Matt: I'll just buy another one of them. Remember, he said something about that during his trial, about, I'll go buy another one on the market.

0:41:31 Thomas: That's why I kind of what I mentioned. Yeah, I mean. Oh, I mean, yeah, it's kind of inconvenient, but it's not. I mean, true love.

0:41:32 Matt: That's funny. Yeah, yeah. Yeah, like, we already got married. I want to get divorced, pretty much, yeah, but I think that's a pretty good example as well of somebody that is right there who, would have at least been eligible for a waiver potentially, but those waivers are not automatic, and you still have to prove some kind of hardship, and I think it's a good sort of way to examine how common these things are. And the fact is, though, that Elon Musk, by the rules that he is preaching, by what he wants us to believe,

0:42:04 Thomas: Have been out of here, man.

0:42:06 Matt: He's very big on legal immigration, and I think he should be held to that.

0:42:09 Thomas: Yeah. No kidding. Age old story of, differences you in privilege where it's like often know by the numbers that white people, for example, like do more drugs drugs but they don't get policed as much and so you privileged know white kid gets busted for something it's not a big deal they'd have find a way that it's okay it's these things for people of color just disqualifying like instantly ruin their lives because they don'T have the resources to get out of it in the same way that white people do it's just another example that seems like it's the same all the same crap that he's talking about he just did and it doesn't didn't affect him doesn't matter

0:42:41 Matt: It's exactly the same thing where black drug dealers are held up as the model of dangerousness, where white college kid drug dealers are just kind of doing college. It's just the same kind of thing. It's the same approach to immigration. And I've always seen it the same.

0:42:49 Thomas: Industrious yeah yeah but is really interesting I love when we do these stories because I often you know again at a glance I don't know like ah what's kind of a bullshit you gotcha that isn't real it sounds like this is very real like this Is a very real thing that happened this is not some left conspiracy theory gotcha

0:43:08 Matt: It was, yeah. No, and he's trying his best to explain it, but he hasn't been able to do that really. His best he could do is October 27th, actually at 3:30 in the morning, he tweeted, I was on a J-1 visa that transitioned to an H-1B. They know this, they have my records. Losing the election is making them desperate. Did transition to an H-1B somehow at some point, but he definitely violated the terms of his status before he did that. No question. So it doesn't matter.

0:43:33 Thomas: So okay but could we get him out of here is there still a way you said they don't tend to do it but but like, could we? What has to happen for that?

0:43:43 Matt: It would look pretty bad. You'd have to have a U.S. attorney initiate denaturalization proceedings in a federal court and very likely a criminal as well.

0:43:49 Thomas: Do you know any?

0:43:53 Matt: It'd look pretty bad if Kamala Harris came in and immediately started denaturalizing.

0:43:56 Thomas: No, let's do it now. Let's have Biden do it. Yeah.

0:43:59 Matt: That's true. Biden, yeah.

0:44:01 Thomas: He's fine.

0:44:01 Matt: And he's immune, so, you know, I can't say it's corrupt or whatever.

0:44:03 Thomas: Or in the lame duck period, you know? Like, yeah, get him out of here.

0:44:05 Matt: Yeah, why not? Go nuts. A good idea.

0:44:09 Thomas: A big example of it. You know, we tried, I'm like, hey, we try to pass the toughest border bill? Donald Trump said no. Well, here's something we can do to try to enforce the law against law -breaking immigrants who did it wrong. They didn't do it the right way. He did it wrong. Therefore, Elon Musk, you're gone. You're out of here. It's over. Making an example of you. For playing.

0:44:32 Matt: That's right. It's a chance for Democrats to get tough on immigration for this one guy.

0:44:35 Thomas: There you go. Because they are doing that. So like that we do do this thing where we, oh, we'll find little examples to get tough on immigration. But hey, here is one that we all will be happy about. Every Democrat will be like, okay, sure. Why not? Was already so delightful. I almost feel like I don't need a footnote fetish, but I still want one, Matt.

0:45:00 Matt: It's dessert. You got to have your dessert. I mean, we deserve dessert. We've been through a lot here. So we've got a tasty McFootnote from the request of listener Lydia S has put this one in. Is something that matters a lot to me, I will tell you right away. Love ice cream and I love fast food ice cream. I can't help it. I will even go in for shamrock season. I'm that depraved.

0:45:02 Thomas: There's always room for dessert. Yeah. Oh wow.

0:45:22 Matt: I know. It's mint toothpaste.

0:45:24 Thomas: That one's a little too

0:45:25 Matt: I know. I think you'll example of the administrative state really getting it right. Because I think we all understand, at least those of us who frequent McDonald's for the ice cream understand, it's a meme at this point, the ice cream at McDonald's breaks all the time. The ice cream machines are just completely unreliable. And you can actually go right now to McBroken.com, which is a website that uses bots to test out if you can buy ice cream at different McDonald's

0:45:25 Thomas: Weird for me, but sure, you do you. Really does wow well well

0:45:59 Matt: Locations.

0:46:00 Thomas: Like they have a robot walk in hello can I have some ice cream sorry I know that's not what it is but that would be great if it was yes I would like one human ice cream please

0:46:05 Matt: It's a little more online, fortunately, but yeah that's a funny idea I like that somebody some deranged billionaire just sending an army of robots to every mcdonald's in the world I do like that idea but no this is uh McBroken.com right now is showing that 14 and a half percent of all mcDonald's ice cream machines in the united states are down as of today day reporting and just to pick two cities at random that includes nine percent of the ice cream machines in greater Boston and 20 of San Francisco's that's a lot.

0:46:32 Matt: I really just want my ice cream near

0:46:32 Thomas: That's a lot a one out of five chance of just not getting the thing you want it's a bummer yeah

0:46:37 Matt: McFlurry. I mean, it's, yeah, no, and it's a disappointing thing. I've heard it so many times. The ice cream machine is broken today.

0:46:42 Thomas: Do we have any this is not important but do we have any baseline of comparison like in and out or something because that's a lot anyway we don't it doesn't matter you

0:46:50 Matt: Wendy's has made a big thing about how their ice cream machines never break. They've actually made a campaign out of it, but it's true.

0:46:53 Thomas: Know that anecdotally is true I do go for the frosty or used to and then you know notice that the frosties were were staying with me a lot like I just seemed to be accumulating like a protective layer of frosties that I wore around all the time couldn't get rid of and so I stopped doing that as much but I don't think I ever had a time where they were out of order I don'T THINK I EVER DID wow there you go

0:46:58 Matt: Love the frosting. That'll do it. Same. And I've frequented more than I want to admit. Yeah. So the deal is, the reason, do you know about this? I'd read about this long ago, and I was delighted when they brought this up today, because I read this story in Wired, which we'll link to, about four years ago, and it really stuck in my head because this is something that matters to me. Turns out that Ray Kroc, the guy who made McDonald's what it is today, when he bought the McDonald's deal, when he built the whole thing, he made a handshake agreement that he was going to give exclusive rights to the ice cream. In 1956, he was gonna give exclusive to the Taylor company, this one company that makes ice cream machines. And it turns out the Taylor company has been exploiting this exclusive deal for a very long time. These

0:47:21 Thomas: Didn't know this right ray a croc hmm oh wow

0:47:52 Matt: Machines are $18 ,000 each and they have no right to repair them. So you have to get a really fancy, all the franchisees in McDonald's have to gets this really fancy expensive repair contract for thousands of dollars a month. And I could not believe in the Wired story, that includes things like just like helping you get through. There's like a secret menu in machine where you're doing things like setting the temperature of the hopper and how much glycol is going in. Stuff you should be able to do with your own machine that you have to get a technician out to get to.

0:47:53 Thomas: Holy shit yep

0:48:19 Matt: Wired said this is not only a right -to -repair issue, it is a milkshake shakedown, which I appreciate.

0:48:16 Thomas: Up. A

0:48:24 Matt: So Melissa and Jeremy O'Sullivan were students when they invented something called the Kytch that could access the machines, and they started selling it to franchisees. This is very borderline because Because the digital, that's great. Is a real need in the market.

0:48:23 Thomas: Milkshake down. Talk about industrious. Yeah.

0:48:37 Matt: Capitalism demands it.

0:48:38 Thomas: Visa they were on, I approve it.

0:48:41 Matt: Franchisees were happy to be able to pay them a few hundred bucks or whatever instead of the thousands and thousands of dollars in these contracts to have some people come out just to reset the machine every time it overheated, which is all the time, it turns out, because they're just, yeah. So this where the 1998 Digital Millennium Copyright Act comes in, the DMCA. And you've probably heard about the DMC in other contexts.

0:48:47 Thomas: Kidding. Oh my God. Oh yeah, DMCA.

0:49:00 Matt: But the 17 U.S.C. 1201 specifically prohibits devices which prohibit circumvention of technological measures that control access to copyrighted works, which includes software. Things like jailbreak phones, for example. Now, there's been an exemption for a while to allow you to jailbreak bones. That's just like a temporary exemption that's been strung along. The DMCA was at the time trying to maintain some kind of proprietary stuff for a lot of different technologies. Technologies.

0:49:23 Matt: And so there provision in 17 U.S.C. 1201 that allows temporary exemptions, and those can be for three years at a time, and they can only be authorized by the Librarian of Congress. Very strange, because the Librarian of Congress has a lot to do with copyright overseas, generally. Copyright is in the United States. So if you're going to do something that circumvents copyright, you have to have the Librarian of Congress sign off on the ice cream machine that's what has happened here I know

0:49:24 Thomas: What? What the hell? Who is the Librarian of Congress and how do they get there? To beat all the other librarians in a Dewey decimal system contest I huh

0:49:57 Matt: Of congress is a super cool place um right now Carla Hayden is the incumbent and actually been there since september 14th 2016 uh she has a her job duties include just to mention this uh she appoints and oversees the Register of Copyrights of the U.S. Copyright Office. She has broad responsibilities around copyright, and all the fair use stuff in the DMC they were just talking about as well as the temporary exemptions, and determines specifically which works are subject to DMC prohibitions, but she also appoints the U.S. Poet Laureate and awards the Gershwin Prize for Popular Song. So she's got a lot of different hats on this librarian.

0:50:03 Thomas: This is a partisan position oh

0:50:33 Matt: Anyway, I just thought that was was cool that she had to sign off on this rule. But don't know, oh, That's right, that's right.

0:50:30 Thomas: Nice yeah what's a librarian's favorite song it's Cage's 433. I feel like you could have guessed that, Matt. I feel Like, yeah, no, It's a librarian's favorite song. She just gives the award to that to John Cage. She's probably dead. Just gives the every year like we else write a really good library song like this one. It's perfect for libraries.

0:50:43 Matt: It was right on the edge. So this 48 -page rule has all kinds of interesting stuff on it, including abandonware, which is another interest of mine, old video games that are no longer being published. So that they've allowed a temporary rule they've extended this one and they've expanded it as well on allowing archives of games that have been abandoned by developers but more importantly for our purposes class 5 computer programs repair of commercial industrial equipment and this was actually supported not just by the company that was making this software but by the USDOJ's antitrust division And the FTC filed comments. That's pretty big when you've got two big government agencies saying that McDonald's should be able to fix its ice cream machines. This isn't just for McDonald's, by the way. John Deere is having a similar issue where they

0:51:37 Thomas: Make

0:51:38 Matt: Have extremely... Apparently their tractors are a lot more complicated than I thought. I guess I've only seen the old John DeERE tractors. Found out actually today that the FDC has been investigating them thoroughly, but they have a similar kind of rate to repair issue where people can't get into their own tractors, so this is good news. This is nice. I think that it's going to be great for franchisees. It's going to be good for consumers.

0:51:38 Thomas: Ice cream yeah I wait are you saying this happened or sorry so the librarian was like I want ice wow she came out with like just have just covered in McFlurry like just apropos of nothing uh no I haven't been bought off by a McFlury machine what are are you talking about? Yes, it's okay.

0:51:59 Matt: It's official as of today. Yeah! Licking her giant spoon. Yeah man, I love them like flurry. I don't know why they did away with the Butterfinger. That was the best one. I thought it was many, many years ago, but that was the Best Food. But yeah, so I'm excited. I'm looking forward to not having the ice cream machine be broken sometime in the next year or two.

0:52:27 Thomas: That That's a delightful foot note fetish. That is what the segment was made for. It is excellent.

0:52:31 Matt: Bona fide good news. The

0:52:33 Thomas: Then you got to do the punch line where it's like, ha, right to repair. And then they open up. They're like, we don't know how to do this. Okay, never mind. We need the company still. Well, that's impossible.

0:52:33 Matt: Government working and And, yeah,

0:52:44 Thomas: Right. Well that was a fun episode. You know, weirdly as dire as all my other things kind of currently are that was kind of a good news uh show it an illegal immigrant to 100 and uh you trump and johnson's little secret is nothing is hopefully all well like I said lots of gavel gavel to listen to patreon .com slash gavel pod lots of uh where there's woke to listen too as well um your You got any other podcasts, Matt? It's just me. You do. Gavel, gavel. You're also really, you know, that's also yours. And you're fantastic in So go check that out, everybody. And we'll see you with even higher blood pressure on Monday.

0:52:52 Matt: I thought we could use one. Let's hope.

0:53:22 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.

0:53:39 Matt: All right. Just used the word denominator for the first time in 24 years or something. But there's a reason that I didn't feel too bad.

0:53:44 Thomas: You need to get out more.

0:53:48 Matt: Got more math parties.

0:53:49 Thomas: Yeah. Yeah. That but unironically anyway uh