The Luckiest Criminal Defendant in American History

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.

0:00:45 Thomas: And welcome to opening arguments this is episode 1084 I'm thomas smith that over there is real live attorney matt cameron how you doing matt

0:00:52 Matt: Lot of the new Dragon Age game. It's pretty good. Know if there's much else going on right now, but that's been nice.

0:00:58 Thomas: Know it's probably a good idea there's burnout and there's burn out I think I've reached a stage of burnout where it doesn't matter anymore like I can just burn out even more who cares what is it there's nothing left yeah

0:01:10 Matt: Dangerous talk, my friend. I think we're going to have to talk about that, about burnout, because I'm very well experienced with burnout, and I wanted to actually address that today.

0:01:16 Thomas: Let's feeling more motivated, I guess. I think I wasn't sure how I was going to feel. I wasn'T sure if I was gonna, you wake up and feel like I can't even get out of bed, but I felt really, I'm really frustrated about learning all the wrong lessons from this just because people have to have their take based on inaccurate data. And I'm, I'M to fight that. I'm motivated to clear even, more stuff up this on episode with you, uh, legally speaking. So I I think we need to be all thinking clearly.

0:01:42 Matt: We got a lot to talk About today.

0:01:43 Thomas: Me say this. I'm going to make usual the pitch, you avoid the ads and the ad break at Patreon dot com slash law. But I'm also going to say and totally understand this. Got a lot of cancellations after Trump won and a lot OF people very sincerely saying, hey, do it anymore. Can't follow it anymore or like, hey. Pausing this because I just can't deal with politics right now. Totally respect and appreciate that. Guess I did want to give an plea that if maybe you are someone who has been, you on the bubble about pledging and you are Someone who is have the bandwidth does want to listen does want To continue on. If you'd see in your heart to and kind of make up for what I think is a lot of burnout there. Would be really appreciated because it was, it was hard to see like, oh man, we have this, this huge task ahead of us, you and I, and like, there's so much to do. And then, you was, that was a bit of an additional gut punch that's that hard. It's hard for all of us in a lot of ways. So, I also want to add that things were so miserable and the election got so busy. I forgot that we have a delightful lot awful movies that has nothing to do with the election

0:02:36 Thomas: That I need to edit and get out there. And it's really good. It'S really fun. Again, apologies for the the delay but I hopefully you understand it was too much going on with the election everyone but it's it's a really good one it's about the conjuring folks the the real life couple that you even say that could even say they're a real life complement they're dead but

0:02:37 Matt: I've been waiting for that one? Well, you have to listen and find out. There's a a lot more going on there and the real horror story.

0:02:56 Thomas: They're yeah they're charlatans they sold their story yeah and so we did a lot of movies movies that was a quote unquote court drama you about know this murder this real case this real murder and uh matt clears up a lot of the um myth there that was kind of sold by these charlatans who pretended they were you demons and all that and it was a really good episode interesting episode funny episode I will have that up soon uh as a benefit fit at patreon .com slash law no the demon's nice I like him yeah he's a protagonist all matt where would you like to begin

0:03:22 Matt: And there is a monster in the story, but he is not a demon. Demon is cool. Yeah. Right. Well, I wanted to just talk for a minute. This doesn't really feel, and I hate to say this, but this is not a week for footnotes. We're going to skip the footnote this week. I want to have more of a preface. I know, I know. Next week, I promise. It just feels a little too frivolous. So want want to use that time just for a minute to talk about what we're doing here because is an inflection point. We reached a point where I know that listeners don't need a podcast to tell them that everything sucks right now. That's not what we want to do.

0:03:56 Matt: It sucks a lot. It's fine. It hurts. It's okay to say that. We're not going to waste two hours a week saying that though. We know it sucks. We are going to point out how the law is doing and where it's at and notice the changes as they happen. That doesn't mean that we're going to be complying or that we are going to be encouraging you to comply. I want to talk talk about things we can actually do, because there's a lot we can do. We need to have these conversations. We need to keep talking about it. And the burnout that we're talking about is real. I want to talk about that in a minute. But I also want to talking about Sonia Sotomayor for a second in the best possible way, because I know that we both love her, love her writing, love her attitude.

0:04:13 Thomas: Probably

0:04:25 Matt: Yeah. And her approach to humanity in the law, the way that she approaches everything and just her whole deal.

0:04:25 Thomas: My favorite justice that she acknowledges it her position vis -a -vis humanity is different than some of the justices yeah probably she's in in the pro column yeah it's nice oh

0:04:39 Matt: Yeah, it's wouldn't you know it. I don't know if I ever mentioned this, but I actually commissioned an oil painting of Sonia Sotomayor, and it's hanging in my office. I'm looking at it right now. And you would think, I would have thought before I did it, it costs like $10 ,000 to commission an oil paint. But it turns out my buddy Pablo Manriquez, who's a fantastic immigration reporter at Pablo Reports on all social media, will just do an oil planting for you if you ask him for a few hundred bucks. And they're great. So I love looking at her. And it's just a good reminder that I can practice law without giving up my humanity, and

0:04:46 Thomas: That's that's really cool that no also got um the kids were born she wrote to different people that we care about you know and uh Sotomayor I believe was one I think we I'm forgetting now she'll correct me but we have uh some sort of letter of congratulations from Sotomaior we have at least two or three from Stephen Sondheim which is really special special um just a thing that I never would have thought you could ever do in a million years and my amazing wife was like yeah let's do let's this and we have some really nice things and soda soda mayor is one of those so wow look at that look at us well I'm counting this as our footnote that's that's delightful for both of us yeah

0:05:26 Matt: That's really nice. Yeah. So what I wanted to mention, though, is that last January, Sotomayor was talking to a group of law professors, and she was talking about how after Dobbs, she went back to her office and cried. She was very emotional, and She was talking very openly to her feelings in a way that I appreciated. And she said something that I've been thinking about and that I really want to address us here, which is that it's not an option to fall into despair. Have to get up and keep fighting. And Sonia Sotomayor's job at this point for the rest of her career and the rest of her life will be as a dissenter, just like Ruth Bader Ginsburg and so many other great liberal justices. She is standing as the voice of reason, as the vice of humanity on the court. And if she can get into work every day and deal with these people and write these dissents, I know that we can too. Despair is not an action for us either. It just isn't. And we're not going to be despairing. That's not what we're here for. Can have moments of despondency. Certainly we we did on Tuesday night. That was a raw, unedited episode in which we were just experiencing in the moment. I've gotten some sleep since then. I'm sure you have too.

0:05:46 Thomas: Biggest a lot there but yeah sure

0:06:29 Matt: Well, sleep for me too. Relative. It's just a sense of hopelessness. Despair is the complete loss of hope. And we don't want that. That's what we're really trying to avoid here. And that's what I want to encourage listeners to to keep the faith here, because it's not going to be easy. We know that. It's going to to be very difficult and we can mourn and we can rage. We can find our pleasures and our vices where we can. Know, You we can deal with depression, anxiety as it comes, but we can't despair. And

0:06:51 Thomas: I'll play dragon age or whatever you said

0:06:53 Matt: Yeah, that's right. Hang on. I mean, it could be better, but it's pretty solid, Dragon Age. And you know, it's great. It's fun to walk around and I they dumped it down a little bit.

0:06:55 Thomas: I love it I have people People who listen to Dear Old Dads might know, oh, maybe it's not out yet. I play Stardew Valley with, I got the little kids playing Stardue Valley with me. It's the best. We have a, we have our little farm, you know, and they, do all the work, you know, that's how it is, but delightful.

0:07:09 Matt: That's a great escape. Yeah. Yeah. And there's no Supreme Court in Sturdy Valley or Dragon Age. To put it out there that this is like a non -negotiable hard limit for me and my life and how we're approaching this show, that we're not going to descend into despair no matter what happens. We're going to keep talking about this. We're gonna be realistic and we're going try to bring you the law and the news and talk about it the best we can. Is a place for this and we have to keep noticing, more than ever, we have keep noticing these changes as they happen. Understand, as you said, if people need to check out for a while, but we're here for you. We wanted to talk about mental health since this is very personal to me. I've been thinking about it a lot. I know it's personal to you. You've mentioned it the last couple of episodes, and I think it's worth talking about for a second. 2017, the year of the Trump presidency, was one of the worst years of my life. And I have put in a plan to make sure that the next four years are not going to be as bad as that was. I think It's worth being honest about the fact that there's no field of law the executive has as much control over as immigration. And Trump has promised mass deportation starting day one. This is going to be a rough time for my office. We've already had a staff meeting to talk it out.

0:08:13 Matt: I'm in a much better position than I was. And I feel it's so cathartic to be able to come on here and talk to you and everyone about what's actually going on. I'll be able report from the inside as we go here. Going to make me feel better in itself just to be to come out and do that.

0:08:25 Matt: But, you know, I did not manage my mental health for most of my adult life, most of my career, and I had pretty much a breakdown at the end of 2017. I had a pretty serious episode when I'd come back from an ICE check -in that wasn't going so well, and really had a tough time. I ended up dissociating. I parked somewhere in the Seaport District and just kind of wandered around for a while. I took care of myself after that. I got on medication and started going to regular therapy. And if you don't already have a plan for your mental health, I I know know that you do, but if people listening don't, this is the time to do it. If you want to stay engaged, you owe it to yourself and everybody around you to put your oxygen mask on first. And it took me way too long to learn that. But your plan besides Stardew Valley?

0:09:04 Thomas: I mean, that kind of is it in a way, you of time with the kids. I went through last year was so much harder than anything I can imagine going through again I mean for me personally I mean this sucks don't get me wrong but like I don' t think people understood how horrible that was and a level of stress that I didn't didn' t know the human mind and body could even deal with um for in a prolonged a period of time and uh I feel both completely exhausted by it perpetually but also sort of got just I'm down to my bedrock or something like I feels like I mean there's no you wear me down anymore you I've just been in a state of non just -stop stress ever since so So, I mean, it's probably not really the answer you were looking for, but the answer is I'm, already been at a hundred for a long time for two, two two years. So, but but I'M, you time with the kids and realizing that, that's the only reason for anything for me anyway. And whatever that is for everybody is individual. You but for me, kids is is the reason for any of it. So can take away enjoying that,

0:10:00 Thomas: You no election, no Trump, no whatever is going to take away from those moments that I'm never getting back with my kids. So that's stardew valley in a way is the serious answer you

0:10:11 Matt: Like a pretty solid mental health plan and everybody's going to come up with their own, identify but your vices, know how to control them, don't let them control you, all that, everybody listening. Schedule your fun because that's something people forget to do in times like this, including private time with your partner and anybody else you need. So I know. This This is a really big cause for me. I, quite frankly, should have checked myself in when I was going through what I was going through, and glad that I came out the way I did, but I just don't want to see anybody else go through that. Can all get through this. I know we can. Of all of us, we've got some great patron questions. We've got so much engagement when we put out questions about things this year.

0:10:38 Thomas: A lot of questions it's great to have the opportunity to answer some of those for

0:10:42 Matt: Dig into a few here. A lot to talk about, and a number of these are going to end up being other episodes and other things we're going to thread out later. But we've got Donna W. from the UK who asks, if states have made abortion legal under their constitution, can that be overruled by a federal ban? Is a pretty straightforward question, but it's not necessarily a straightforward answer. Let's start with the unequivocal good news, which is that seven out of 10 states consider constitutional protections for abortion did approve them this week. South Dakota, and Nebraska all shot them down. Nebraska

0:11:07 Thomas: Florida they shot it down with only 57 % of the vote or whatever it was you know yeah

0:11:12 Matt: It has to hit 60, yeah, in Nebraska passed something else that banned abortion after the first trimester. It's kind of a competing ban. I did want to recognize, before we talk about the question, the biggest win of the night, which was Missouri. It It overturned one of the strictest bans in the nation, and they put in a constitutional amendment to protect abortion rights up to the point of fetal viability. What's particularly interesting about that is kind of picking up on the theme I was talking about in the election night episode, got 40 % of the vote in Missouri, but Amendment 3 passed with 51 .6. you've got 11 .6, presumably, of some Republicans, and I would think probably some Missouri Democrats voted against the abortion protections. So, you had quite a few people that voted for Trump that also voted for broad

0:11:13 Thomas: Stupid yeah yeah

0:11:47 Matt: And expansive abortion protections, and I just think that's worth exploring a little more.

0:11:51 Thomas: There's I mean there's some people who wonder if having if the bat like there's there a a back and forth about getting stuff on the ballot to generate turnout. But there also may have been another dynamic to it, which is having abortion stuff on The Ballot gave people a false sense of like, oh, I can vote for Trump because we're also protecting abortion here.

0:11:56 Matt: Protect Yeah.

0:12:09 Thomas: The end, I don't know how much that mattered because people cared about the economy and the price of their or whatever. And that is what what people thought they were doing by voting for Trump for most part.

0:12:19 Matt: Still a surprise to me, but I guess it's just so clear to me that it's an actual threat to reproductive rights. But much of a threat? That's the honest question. And I think that we've been kind of proceeding on the idea that Congress could pass a federal abortion ban. It is certainly possible. It certainly could be challenged. Congressional Research Service produced a report on the federal authority for an abortion ban after Dobbs back in 2022. there's sort of a general agreement in this, and from what I've seen, that it seems like there would be foundational arguments for this. It could be challenged. And certainly, nothing's bulletproof that I'm seeing here.

0:12:46 Thomas: And what's the specifically the thing you're talking about? Just the fact that if a state says, hey, this is, part you of our constitution or this is our law and, Congress passes a national ban, just the interaction between those two things.

0:12:58 Matt: If federal law is supreme, so that's what it comes down to. And CRS is talking about potentially commerce clause arguments, because you'd have to show that it's affecting interstate commerce. The 14th Amendment, and that could get interesting if Congress decides to go for fetal personhood, as is very popular right now, and I think as was in Project 2025, the idea that a fetus is a person, and therefore the 14th Amendment would protect, and so you can't deprive any person of life, liberty, or property without due process. And of course, Section 5 of the 14TH Amendment grants Congress the ability to enforce it through appropriate legislation, so they could rely on that and say that they're protecting people.

0:13:31 Thomas: Are we going to have to go through a farce like of giving a fetus due due process. Like, providing notice to this, you know, blastocysts and Fetal personhood is, boy, I really wonder what they're going to do there.

0:13:40 Matt: Is. And really want to go for federal fetal personhood, I will take them up on the joke and make sure that no pregnant people are ever in deportation proceedings because that's what we can do. Congress could also proactively legislate on abortion. And that's one thing the CRS was saying might be a little more acceptable because there are questions for all of these things. They'd have to identify some kind of pattern of practice of state constitutional violations associated with it and determine that you need to step in with federal law and it has to be supreme. So overall, Overall, I think they're going to find a way. Obviously, they're gonna find a way, but it's just about if it can be upheld and far that goes and which court it's in front of.

0:14:13 Thomas: They pass a federal abortion? Will that actually pass? I don't know. Do you think? I know that Trump wants to do that, But again, we don't know how much that matters. Like, we do not know who is running the show

0:14:23 Matt: He said he wouldn't sign it, but he said it would be to it. You know, again, he says a lot of things and he does owe quite a lot to the people that want this the most. Who knows? But, all you know he doesn't pay his debts either. So, There's also the outstanding possibility as raised in Project 2025 that Comstock Act could be used to interfere with medication abortions to stop the mail. So it's just something to watch, but you know, overall, I, right now, I know, again, we're open to anything. My gut says anything could happen, but I don't know that Congress is going to come out the gate with a national abortion ban. I'm not sure that's how they want to start anytime soon. It's something to look out for.

0:14:50 Thomas: I do not either. But it really depends on what their margins are. That it could come down to like a couple, seats you to spare. That is going to be what determines it.

0:14:54 Matt: It's Lipstick Lumberjack asks, terrible question to even consider, but I know it is on the table. The Supreme Court ruling that presidents have absolute immunity for official acts, can Biden or Harris perform official acts that result in the executive branch not being handed over to an insane, dangerous narcissist who will destroy the country?

0:15:11 Thomas: Hmm.

0:15:12 Matt: There are a couple ways to read this. I don't think that we want to actually get into the territory of having Biden remain in power. That's not really where we're, we don't need to do our own January 6th here. It got me thinking about, there were similar questions along this vein about what can Biden do now to hamstring the next administration and make it more difficult for some of the most extreme policies.

0:15:30 Matt: And there certainly are ways. As we were talking about before, they've already instituted this Schedule F protections that are going to make it much harder to put in civil service reform. Well, I guess you can't really call it reform. It's more destroying the civil service. But what Trump wants to do to make sure he can get a political appointees into places places where they haven't been before, he's going to have to take some time to unwind that because those were all promulgated properly as federal regulations in the federal register. So that at least is going to be a speed bump, but it's just a speedbump at the end of the day. But if you go through every sort of major policy place in the Federal Government, certainly Biden has the power to issue a flurry of executive orders. They would all have to be undone. They could start to take root and do different things now. But when I'm thinking about the single greatest threat domestically, which I still think is the mass deportation plan overall, I think that's the the one that is just single greatest threat to non -citizens, but to everybody because

0:16:17 Matt: Of what it's going to do to law enforcement and the way it's gonna co -opt local and state law enforcement, which I'm going to be talking about a lot. It's a really important subject right now. Biden could hamstring ICE pretty easily right now just by canceling a bunch of detention contracts, which they should do anyway.

0:16:29 Thomas: Please do that. Yes.

0:16:32 Matt: Personnel, play

0:16:33 Thomas: We're talking you're just talking legit stuff right you're not even in the realm of like oh it's a crime and he needs some sort of yeah

0:16:38 Matt: Some of it might be questionable.

0:16:40 Thomas: The details of that he could cancel what contract what would this do attention

0:16:43 Matt: Detention contracts, there's nowhere to put them, right? If you don't have... Now, again, he's talking about building camps. Trump has promised day one mass deportation, which I don't think he can do in the existing system. But here in New England, we're down to just a couple of facilities. We used to have contracts with all the local jails and they've all pretty much been canceled. And the federal government can revoke those anytime.

0:17:02 Matt: And I really think that's something thing I'd like to see anyway, if we can just reduce the he's just got available to

0:17:05 Thomas: So then the question is does has all this border stuff been a serious belief of his or just for elections? You know what I mean? It'd be weird to be like tough on the border, tough on the border trying to get those votes, you know, or, or not lose those votes and then turn on a dime and do this. That's what what I'd want him to do. But I don't know that. I don' t know that he would.

0:17:23 Matt: Yeah, and the union protections are pretty strong for firing people, especially in CBP and ICE. I think there are definitely things that would be short of crimes. I mean, obviously, he could just assassinate people. That was brought up at the Supreme Court, arguments or of the immunity case, but I don't want to encourage that. I was thinking too about the immigration courts, because that's where a lot of this stuff is going to be happening. Happening. And And he could just go for it, even though, like I said, there are unions for these things, but he could try. He could fire every single immigration judge that wasn't appointed by him or Obama. Now, the Board of Immigration Appeals, which is very important for what's going to be coming and how these cases are going to processed, completely stacked with Trump appointees right now. Just fire them too. Why not?

0:17:37 Thomas: That' s not happening. Jeez.

0:17:57 Matt: Probably things like that you can do in every executive policy branch that you can go through and find ways to just kind of cause some chaos and make it a little harder coming in. We want to not hand over the keys as as much as we possibly can for the worst parts of this, especially.

0:18:09 Thomas: Yeah, and n't have much faith Biden. I I think he was not just doing a bit. I think he is very institutional. He's very, you smooth transition of power, all that stuff. Maybe we can, maybe we can get some pressure going on this stuff. Maybe let's and get maybe a list of these things. We can get, can we make a video or something and see if we can getting people to at least be talking about it and try to build some pressure. Mean, we got to do what we can.

0:18:30 Matt: Me a few few more days, I can think of quite a few more, I'm sure. But there's just no reason at all that you can't go out of legend. Why not?

0:18:36 Thomas: Yeah.

0:18:37 Matt: That some of these policies are existential threats to people in this country, and there's no reason not to try. Of existential threats, we've got a question from a regular listener, Gmork, who Nazis. Any lessons? Any takeaways? What's the moral line between civil political disapproval and complicity? This is something I've been thinking about a lot myself because this fits into what we've been talking about leading up to the election with MAGA as a fascist movement and proto -fascism upon us now. One thing I've really been thinking about that I don't know is immediately obvious when people think about it is what the average Nazi looked like. Average Nazi in the third rank did not wear jackboots. They weren't wearing an armband all day. They weren't goose -stepping around. They were just regular people going about regular jobs. And all of these regimes depend on the bourgeois class, on the professional classes, on you and I, frankly. They can be easily co -opted because because we're comfortable and we're doing pretty well. And that comfortability depends on complicity. Have the greatest incentives not to comply, but it's especially on us to resist where we can and to not. I mean, there are going to be all kinds of different ways that this can start to creep into our lives. You're not going to necessarily be asked to shoot somebody in the head or whatever, but you might have to sign things or agree to things or just along with things that you wouldn't otherwise. And it's become a cliche, but we have to all think about what we're going to do. I mean, it's become a cliche at this point to say it, but whatever you think you would have done in the Third Reich to stop what was going on, you should be prepared to do now. I think that's where we're getting to. Again, I'm thinking ahead. When I'm talking about all these things, when I'm taking about fascism, I am not talking about January 20th, I'm not talking 2025, I m talking about beyond that, where things are going and the trajectory. Know, Christopher Browning is a great scholar of Nazi history. Did these studies of just regular people in an unit that was going around and executing Jews in Poland. And he's looking at these randomly conscripted middle -aged people, people that weren't even really all that committed to being Nazis, barely trained as cops. And they were actually given by their commander the option not to participate in mass executions. And very few of them, he found, availed themselves of that. Very few ofهم agreed not to be executed. And I mean, I think there's a lot we can learn from what happens in these regimes. But as we've we've talked about before, I think that the better analogy, and there's nothing wrong with talking about Nazi Germany. Certainly, we have to learn from the worst things that have happened in these regimes. But I still think that a better model is looking at mid-'90s, late-'90S Russia and what happened after the transition from communism

0:20:56 Matt: To capitalism. And that's a very different situation in some ways because they'd never had a capitalist democracy before. They didn't have a model to work from. But it was quickly overtaken by oligarchs, and they lost any chance at democracy within a few years by the time that Putin was in in the early 2000s. So that's something I'll be talking about more, I'm sure. Again, there are all kinds of ways to resist and to try to slow these things down to stop them as they're happening before we get to the point where it's Russia and it's just not safe to resist.

0:21:20 Thomas: Want to say that I want to keep more of an eye on what they're doing. Lack of a better word it was precious the first time where I was like what the what is whatever and now it's like well here's what they're going to try to do let's track every single step of the way that they're doing and draw attention to shine a giant light on every step do not think people are ready for what that means. And it's a combination of that how plausible I think it is that he is going to do that. Like kind of with you. I think if I'm understanding you correctly, that that that's kind of like the number one thing I'm really concerned with right now, because yeah, I think he, I Think he's going to do that and I think that a lot of people think they support that right now.

0:21:54 Matt: The immediate threat. Yeah it is. Yeah and by the end of it, maybe some still will, well, but I think it's going to be

0:22:04 Thomas: Some still will, will but I don't it's not going to be all of them and in california I mean it's there there's no such thing as that not affecting basically everyone here like it's it's if gonna go after you people it a part of our society they're everywhere they're every they're gonna be there's not you're not gonna be untouched by by that you

0:22:06 Matt: A lot more. Sure. And we'll all see it. It will be a police state situation if he's able to co -opt state and local authorities the way that is legally allowed by law. I'm sure we'll be talking about it, but it could be a whole lot more than I think people are imagining. Get there one step at a time. But I completely agree that talking about it pointing it out and just noticing these things as they change and when they are not normal and just saying it is worth a lot. And that's what we can do. That's the thing that all of us can do, all Lauren asks, any chance for an injury time? Hail Mary, Sotomayor a substitution. Kind of an interesting thought experiment. Is This something else I think that Biden wouldn't do and that Sotomayor herself is probably not down for right now. As we've discussed in the last episode, she's potentially

0:22:57 Thomas: Retiring in the lame duck. Is that what you're talking about? Yeah.

0:23:00 Matt: Trying to shove somebody through. Amy Comey Barrett obviously set the record for I think within the last 50 years. Bader Ginsburg died, I think it was September 18th, and she was appointed and confirmed completely by October 27th or something. It is possible if you rush it. Rush it, I don't think.

0:23:14 Thomas: Yeah. I don't even know that we have the Senate numbers to do. Like, would Joe Manchin support that? I mean, I feel like he did vote for Amy Coney Barrett, if I remember correctly. Exactly um and doing that and failing you know like I I man I know

0:23:19 Matt: Would Sinema do it? Yeah, that's a good question. Might be too controversial, though, as a lame duck appointment and be a mess. It happening, but theoretically, it could happen. There's no reason it couldn't. Have until January 3rd for the next Congress to be sworn in.

0:23:39 Thomas: She's really in ill health more than we know about I t I I don''t think she should try that unless she just somehow someone had already counted the votes and knew for sure we could make this happen because

0:23:49 Matt: Sure. I hope she's in good health, generally speaking.

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0:25:20 Matt: As someone in law school right now, WTF do I do? Do I wait until we know what we are working with? Do I just learn everything and expect to unlearn it as I'm going and they're destroying our constitution? I effectively have a history degree and have to do it again when everything is over? I do want to talk to our law students. I know we've got a lot of law students listening and I think I want to do an episode for law students sometime soon because this is a special situation we're in right now. And I just want to tell you if you're in law law school, remain in law school. Don't leave. This is the time to be in law school. This was a perfect time because, you know, no matter where you are in school right now, we're going to need you when you get out. And if you're thinking about going, this is a good time to go as things ramp up. Is still worth doing. There is still a lot that you can do. Hope I've conveyed I don't necessarily believe in these systems. I don't believe in a lot of the things we're promised that the law can do, but But we're here. It's the thing that we can do. We have a lot of need, especially if we're going to be having things like mass deportation and massive civil rights violations happening all over the country. Anybody wants to talk about it, I'm here to talk about it. You can always email me, matt .com. reach out on Patreon or whatever. But I'm happy to talk to anybody who's got doubts or questions or is thinking about doing this. But But I will tell you that one of the things we can thank Donald Trump for the first time around is the number of people he sent to law school, personally.

0:25:33 Thomas: It's true degree yeah

0:26:33 Matt: A lot of people. Yeah, I do. I have to.

0:26:33 Thomas: Can we thank him Oh, thank you. A bunch of lawyers. Awesome. No, I'm just kidding.

0:26:38 Matt: I mean, no, I don't actually thank him for anything. But I mean we've got so many people that were inspired to go into immigration law, which we needed at the time, especially still need. And so many of the people that are inspired to become public defenders and to become civil rights attorneys and to get out there.

0:26:50 Thomas: When you put it that way. Yeah that's

0:26:52 Matt: Yeah, no, it really meant, I know, you know, listeners to the show historically have gone through law school and are now attorneys. I'm very proud to hear that. You know, I understand what Kay's saying here, that it feels kind of futile. And certainly, it's amazing to me to look back and think about 20 years ago when I was in law school about the number of things that are now not really great law that I learned at the time. But that is also kind of the nature of it, even if terribly evil things aren't happening, 20 years later, you have to expect that some things are going to change. That's how it goes. But fundamentally, you Know, again, Kay's talking about the Constitution, but there is a lot of value in learning our system, in learning the statutes and learning regulations, because nearly all of it isn't going to change. And a lot of the stuff that matters is going to stay core and it's going to be what it is. And most important thing we're going to look out for all the way through the particular focus of this podcast is the rule -of -law and how it's being administered and how faithfully we're actually following any of this. And we need good people out there to be part of that. We

0:26:52 Thomas: That's excellent. Absolutely. Yeah yeah yeah forget who said it or if it's a combination of things I've synthesized from this show but it's often feel like oh the Supreme Court ruins everything so what's the point but But when you look at the numbers of how many important cases that affect people's lives are not they're not they don't go to the Supreme Court. They're not going to get that high. A lot of decisions just stand. Could tell me ninety nine point nine. You know, it's going to be something like that.

0:28:02 Thomas: Decisions just stand at the lower court level and you need to fight those cases. And you can get wins that don't aren't ever challenged and are important in people's wives that just by numbers game. You know, the Supreme Court's doing less and less work, you know, that that will stand. And that's a huge difference in people's lives.

0:28:05 Matt: We do that's right and we also need judges at every level local state federal

0:28:23 Thomas: Oh, God, can Biden just fill all remaining open judge? That's enough. Put that on the list of what Biden needs to do immediately in the lame duck.

0:28:28 Matt: Push them through he's done pretty

0:28:31 Thomas: We need to.

0:28:31 Matt: Well with it but there's

0:28:32 Thomas: Yeah, that's what we need to do. I want to put this in video form and in podcast form. Maybe we put our heads together, Matt. And by that, I mean, mainly yours of lame duck. What What, should he do for the future, for the immediate future, for the long -term future, and then make some digestible videos to try to get people to publicly pressure him to do these things. 'Cause I just don't know. I don't know how much he's going to do. I just don't know how much he cares about. And I don't think he doesn't care. I just think he thinks the thing do is preserve order in the system and the whatever. And we need to do our best to convince him not to just do that.

0:29:09 Matt: These are not normal times um that's a great idea I think there's a lot of uh stuff I could come up with so next question from john and and quite a few other people. This was one of the most asked questions, some version of this, so I wanted to talk about it. I'm keenly aware that my ancestors left Russia in 1874 when the getting was good. Those that stayed and their descendants were almost all dead within a few decades.

0:29:11 Thomas: Let's do that, yeah, yeah.

0:29:27 Matt: Matt hinted at this in the emergency episode. How do we tell when it's time to stay and fight or time to flee the country? Not that fleeing the country is easy, but I'm keenly wary that staying and fighting didn't work out too well for those opposed to dictators in Europe the last century. Have to say, this is something I thought about myself, myself. Certainly when I was in Scotland, I did have that thought of I could just declare asylum. I good place to file an asylum claim. I think at some point, I was thinking we should do an episode where we talk to a British or Canadian lawyer, maybe both about the immigration processes, just to let people know what those are like and what it actually takes to immigrate to those places. But I do want to say for now that if you're even in a position to think about leaving the United States, you are probably privileged enough that you're going to be okay.

0:30:02 Matt: Honestly, that's a broad thing to say. I know. And then there are all kinds of individual circumstances.

0:30:01 Thomas: I was going to say that too. Exception would be, I think there are plenty of people who are perhaps financial or professionally privileged who are trans or some other identity that you might really, you might actually want to consider. Like, it really depends on where you are. But I just, look, I don't know what my opinion's worth. I was going to say a similar thing where I think if you're talking about me or you, Matt, if we're leaving, we're living because we hate it here and it's a a preference and we don't want to be a part of you is we're not we're you and I aren't leaving because we're gonna be victims of something we are white privileged people and who are not yeah not yet

0:30:14 Matt: Doubt. Not yet. I mean, we've got a lot to say about the government. Give it a few years. I don't know.

0:30:44 Thomas: Not yeah I I agree with that like I I don't I think we're a long way away from us feeling immediate danger enough to leave the country um that know that's us uh If you're a marginalized identity, if you're somebody specifically, if you're trans, I, can't tell you you're crazy for thinking you need to get the out of here. I can, I'll, I'm not going to do that. I'll put it that way.

0:31:00 Matt: Not at all. Not all. No. And whatever you have to do to feel safe and for your own mental health. And certainly, you're welcome in Massachusetts. We've got great trans healthcare here, and we love our trans neighbors. So if you're feeling uncomfortable, at least in the state you're in, there are other places that will welcome you. A conversation I've been having kind of on and off with people because it's we are not actually in danger, it is not something we should be doing. We should be trying to stay and make this place better because we cannot abandon it to these people. And we have an obligation to the next generation, at the very least, to do what we can right now. And we can. We can do that. I know we can, and I understand. I completely understand the feeling of needing to leave, and I spend my entire day working every day with people who needed to leave their countries for one reason or another. And I've heard the stories and I know what it's like, and I certainly know what it starts to look like when you need to leave. And that question that John is asking is a tough one. That's a very tough balance of knowing when it might be time to go. But nowhere near that right now. We really aren't. I will admit that I am looking into a backup plan just to know what it is, just so I can remove that anxiety from my life, just so I know that I have the ability. But again, it's only because I am a privileged person with a law degree agree, that I'm able to even consider going to another country without the kinds of problems that most people would have. And the people who are going to be affected most by a lot of this do not have that option and

0:32:12 Matt: Never will. So we have to stay for them at the very least. But again, I'm not blaming or judging anybody who wants to leave. And question as to when it's actually time to do it, that's a more complicated. I don't know if I have a good answer for that because it's so situational And it really depends on how things are going.

0:32:26 Matt: I we'll be able to see if there's real repression happening. We'll know what that looks like. But that's another day, I think.

0:32:32 Thomas: That's part of the keeping the extremely vigilant eye that we're going to be doing.

0:32:35 Matt: That's right. That's what we're here for.

0:32:36 Thomas: We're going to see this crap a mile away. Ah,

0:32:39 Matt: Of stuff that we can see coming from a mile away, let's talk about what's going to happen to Donald Trump's prosecutions. Yeah, sorry, we got to do it. This is one of the other top questions all around, so I wanted a special section on that today just to make sure we get through it. But it is looking like Donald Trump is going to go down in history as the single most privileged defendant in the entire history of American law.

0:32:57 Thomas: Jesus. Yeah. Do Yeah.

0:32:58 Matt: I mean, yeah, it is. It's insane. It is just that we're even talking about this. I can't believe it. And of course, Bill Barr is in to remind us, as of yesterday, he wanted to be very clear that the American people have rendered their verdict on President Trump and decisively chosen him. They did that with full knowledge of the claims against him. And I think Attorney General Garland and the state prosecutor should respect the people's decision and dismiss the cases against President Trump now. So this is a new theory of the defense that if you get elected, that you didn't commit any crimes because the voters decided that you did not do

0:32:59 Thomas: I mean, come on. This is crazy. Is crazy to think about what he's getting away with. Yeah.

0:33:34 Matt: Any crimes.

0:33:35 Thomas: If the president does it, it's not illegal, I guess.

0:33:36 Matt: And if the guy who gets the popular vote does it, apparently. Because Barr actually said that matters have been extensively aired and rejected by the American people. And apparently, they were all thinking about these cases when they went to the polls. And Barr said, he he was asked directly, what would happen if they didn't dismiss these cases? And he said, we'll see what they think of democracy. Unfortunately, I don't have clips for this. This is all a text interview. But I'm not going to say I couldn't believe it because Bill Barr wouldn't believe anything at this point.

0:34:01 Thomas: Be thinking like, oh, I better go ahead and make nice a little bit like know, this is not related to this, but I just wanted to say it because something it's thing I've seen um has had to do a lot of uh ass kissing and I judge him for that zero percent and I totally understand like he's he's in a fight for his country's life right now and he recognizes that the one out he has is possibly flattering the who can be most easily influenced by flattery um I see that I just that's the kind of thing where it's like Like, you know, there's sometimes people are in a position of life or death where they need to do what they need to do. And Zelensky, go ham. Like, seriously, I get it.

0:34:18 Matt: People's on the line. Yeah, sure. Yeah Yeah.

0:34:38 Thomas: Go full MAGA. Whatever. Got to do what you got to do.

0:34:42 Matt: Not in a position of life and death is Jeff Bezos. And the anticipatory obligation, the obedience of just deciding not to endorse because you know that you want to do business with the federal government. I mean, it's just, yeah. I just thought

0:34:47 Thomas: 100%. Yeah. No, 100 % It's a case by case, Matt. This is not a universal rule.

0:34:59 Matt: I'd put a counterpoint there, but I absolutely agree. But when it's your people on the line, when it is your country on the line, it is whatever it takes. So, let's talk about these individual cases. We'll start with New York, which has allegedly a sentencing hearing scheduled on November 26th. And of course, we have a defendant who's been convicted of 34 New York class E felony. Each one of those charges carries a max of four years. So I just want to talk about where this is going. Right now, he's considering the motion to dismiss based on the presidential immunity. I don't think that's going to happen, but he's got until November 12th, he has given himself that much time to decide this case on the immunity grounds, and I would assume that Trump will immediately appeal it and ask to have the sentencing hearing stayed at that point. Be the most surprising thing to happen in a very long time if he granted that motion, but I think it's completely baseless because... Oh, the immunity motion? Yeah, yeah, yeah.

0:35:48 Thomas: Based on immunity yeah yeah

0:35:49 Matt: Because again, little as we've discussed of the New York thing happened.

0:35:49 Thomas: Gotcha gotcha there's no case for that yeah

0:35:53 Matt: It happened to involve some some testimony that touched on some things that happened while he was president, but of course, the actual crime did not. Sentencing were to go forward, I just wanted to mention this because so many people asked about this. It's a great question. It is important to talk about because nothing like this has ever happened before. We are in new territory. Of this is unprecedented, but there are three things that could basically happen at this point. Most likely is postponement. Put I that in the high 90 percentage. Percentage.

0:36:16 Thomas: Like for four years can you do that wow notes does it ever like become become too long and it falls off for some reason or yeah

0:36:18 Matt: January 21st, 2029. Yeah. Would be speedy trial considerations. That's a good question. I don't know how that works in New York, but I think this would also toll that. I mean, this is such a strange thing. The same way it would toll a statute of limitations that the DOJ acknowledges in its memo that controls this, we'll talk about that. Would be a tolling effect on a statuteof limitations, right? If you can't charge the president while he's president, and there's a four -year statute of limitation, right, right? That wouldn't work out too well, but they're saying that the courts should be able to find that this was an exceptional circumstances that tolls the statute. So I would, yeah.

0:36:50 Thomas: So tolls means pauses or something something oh

0:36:53 Matt: So it doesn't run. The speedy trial issues I think would be the same. I'm speculating a bit here because again, that's all we can do. This is nuts.

0:36:54 Thomas: Gotcha could he have him agree to that as a condition of of or of waiting or whatever of delaying it so remembering something I can't remember what where it's like you sort of agree oh I'm agreeing that we're tolling the speedy trial in order to do something I cant remember what could he do that as a hey hey, here, I'm Judge Marshawn. I play him on TV. Will, here's the deal. I'll delay sentencing for four years as long as you're agreeing that we're tolling all that stuff. Can

0:37:06 Matt: Agree to what? Oh yeah. Right. That's right. Yep. That's right. It happens all the time. That's conceivable. Again, I can't imagine any other situation unless somebody's in a coma or something where you'd be continuing for that long for a sentencing hearing. I mean, it's unheard of, but you've just never had the president -elect facing all these crimes before.

0:37:35 Thomas: Interesting. Yeah. Very weird. It's

0:37:44 Matt: So here we are.

0:37:44 Thomas: The thing that makes the most sense, though, because it doesn't make sense to be like, well, because you got elected, your sentence should should change in a way. Like that doesn't, you know, just like morally, you know, whatever punishment wise doesn't make sense.

0:37:46 Matt: It does. Or it never happened. Yeah. Right. Well, that makes sense to Bill Barr. That's what he's saying.

0:37:58 Thomas: We, yeah, yeah. Well, that might be a little, nah, yeah I don't know.

0:38:03 Matt: He's saying that these cases should just go away because the people have spoken. That's literally what he's doing.

0:38:07 Thomas: That's stupid.

0:38:07 Matt: Yeah, it is stupid. I would talk about the other options very quickly. Of course, I still think that the most likely outcome just for any number of reasons is a noncustodial sentence where you sentence to some form of probation and supervised release. The problem is at this point that if you do, and again, this is all kind of a thought experiment, but if you go forward on November 26th and Marshawn imposes nonc custodial sentences, at that point, it does raise the question of, did you change your mind about sentencing and how you're going to proceed in sentencing because he's now the president -elect, right? I don't think Marchand is the kind of guy who wants anything like that out there, his questions about outside factors and he's imposed the sentence because of who the defendant is and his position and everything else. I think the thing that is absolutely just not going to happen is a custodial sentence. He's not going be sent to jail. It's just not going to happen. I think that there's a DOJ memo that we'll talk about in a minute, that applies on the federal level. And I think that the state prosecutors would have to respect it, the logic of it that we'll talk about. The specifically wrote that, excuse legitimate objectives of retribution and specific deterrence underlying the criminal justice system compete against the recognition of presidential immunity from penal incarceration. The obvious and overwhelming burdens that such incarceration would impose on the president's ability to perform his constitutionally assigned functions clearly support the conclusion that a a sitting president may not be constitutionally imprisoned upon a criminal conviction. Now, this is back in 2000 before anybody was thinking about full immunity. The public's general interest in retribution and deterrence does not provide an overriding need for immediate as opposed to deferred incarceration. So they're saying we can push the sentence off. And that is something else that I guess I should say. So just because he imposes custodial sentence doesn't mean it has to be imposed right away. So he could stay the sentence for

0:39:40 Matt: Four years.

0:39:40 Thomas: That's interesting.

0:39:42 Matt: I kind of like that idea that it's like January 21st, 2029, he's going to Rikers. That is, of course, only incentivizing him to try to stay in office, but he'll probably try to do that anyway. Yeah, it's already built in. So that's the way I see that. I don't think right now my gut is that nothing's going happen on November 26th because of this appeal from the immunity decision. But hard to say. It's of this is hard to saying. I'm just putting out there what I know.

0:39:51 Thomas: He's already, yeah yeah. Oh you mean so he would just delay it further oh

0:40:05 Matt: Yeah, because he's already delayed it a couple of times. He delayed it because of the immunity decision already to give them a chance to file that motion. And so he's going to decide on November 12th, and Trump will immediately appeal and try to get the sentencing stayed. So I think that's most likely, like I said up front, that's what's going to happen.

0:40:22 Matt: Georgia, very quickly, let's talk about, as we know, of course, the recusal motion for Fannie Willis has tied the whole thing up and has for many months. Is going to be argued before the appeals court in Georgia on December 5th. Obviously, there is no world in which this goes to trial before January 20th. It's just not going to happen. The appeals court is going to take a while to return to decision. Even if they return to the decision that week, it's not going to go to trial. Fannie Willis has indicated she's ready to go trial pretty quickly, but they will certainly find ways to stretch it out. And they're going to say there's no way that you could possibly have the president -elect going on trial for a RICO case while he's trying to get his administration together, which honestly is fair. It is true, even

0:40:16 Thomas: Gotcha yeah okay yeah so weird yeah

0:40:58 Matt: For as much as we don't want him to get his administration together. Mention too, Fannie Willis just won re -election with a 68 % mandate, so good for her. Have some issues with her, but

0:41:03 Thomas: A bit surprising yeah because I mean yeah we've covered kind some issues with her

0:41:09 Matt: It's No prosecutor's perfect, but she's, yeah. And the YSL trial, which we've got to talk about, it's been completely overshadowed by everything else, but yeah, the Young Thug thing, we'll get there. We can't talk about it today. The RICO charge alone in that Georgia case carries a five -year minimum. Him. And all the rest of those charges carry a possible time, I think up to a year at least. And just can't see her dropping this. I think this is going to be the same kind of thing where they'll try to find some reason to put it out into 2029 and have it holding over him. We'll see. I have no idea what's going to happen. I do think that the appeals court is going to send it back and find the recusal motion came out fine and that McAfee made the right decision. I generally think that's where we're going with that. Otherwise, it's all up in the air. I note that McAfee did actually ask Steve Sado, Trump's attorney, at one point, if your client does win the election in 2024, can he even be tried in 2025? Is, you know, I think the answer is pretty obvious. But Sado

0:41:54 Matt: Said that I believe under the supremacy clause and his duties as president, this trial would not take place, if at all, until after he left his term of office. So they're clearly thinking for a delay as well on that. So

0:42:03 Thomas: But overall bottom line question to be able to take away what stuff is getting dropped and gone forever versus what stuff is maybe hypothetically still live in 2029 and do we know

0:42:16 Matt: Those are the federal cases. We've got to talk about the federal cases now.

0:42:18 Thomas: But but these ones it sounds like you're saying I guess you don't know for sure but it sounds like you'RE SAYING THERE'S There's a chance we could delay them until 2029.

0:42:26 Matt: Absolutely. There's a lot more leeway and a lot more discretion for these state prosecutors to do whatever they want. They're going to get pressure, but they are independent, autonomous prosecutors, and there's no policy that's stopping them. It's not like Fulton County has a memo that says that they can't prosecute presidents while they're in office. Speaking of cases that are going to have to be dropped, we have to talk about the two federal cases. And this is This is going to be hard to talk About it. So just start with the good news out of the federal cases, there is at least some very small good news, which is that under 28 CFR 600.8, special counsel is is required to put out a report on these cases.

0:42:56 Matt: I would argue on both cases. I think there's an argument that he may not have to on Florida, but I'm sure if there's a way to do it, he'll do it. But I just will read here that at the conclusion of the special counsel's work, he or she shall provide the attorney general with a confidential report explaining the prosecution or declination decisions. So it is required.

0:43:11 Thomas: Oh, confidential.

0:43:12 Matt: Yeah, that again, it could be released. And certainly Garland could choose to release it if that if he gets it done before then. Jack Smith works pretty quickly, and I'm Sure that he's got a lot of material for this report already, but it would be good to have a comprehensive report of exactly what he was prosecuting him for in the January 6th case. And honestly, the memo that he filed with Judge Shutkin last month was pretty much that report. It was such a beautiful, novelistic account of everything they were prosecuting for in January 6 case. We'll start with the DC case, is which of course open. And the same kind of thing where Jack Smith could ask that the January 6th case be continued to 2029. He could certainly try to position it that way. But the problem is that the Department of Justice, from the reports that we have right now, has determined and seems to have informed him that they believe that this memo from 2000 is controlling. And we'll link to the memo so you can read it for yourself. But it memo just strictly says you can't prosecute a sitting president. It doesn't say anything about the president -elect, but obviously he's going to be the president in two months, so it's all the same really at

0:44:06 Matt: This point. The reports say that Jack Smith is finding ways to wind this up and again, it's ultimately up to Judge Chutkan. DOJ can come in and say that they want to dismiss these cases, but she could actually find that probable cause to go forward and that this memo doesn't control her and that she wants to continue But of course, you get to January 20th, and you're going to have DOJ people that are going to be ready to go to drop the cases and not proceed on them. And I don't think there's much you can do if they come in and null -prost them and say, we're not going to proceed, we don't have a case anymore. Even if it's clearly corrupt, I'm not sure what can be done at that point. Right. I would not count on this case surviving, unfortunately. The January 6 case is the one that we need a result on the most out of all of these cases. It is the one for history that matters. It's the one he needs to be prosecuted on, no doubt. I mean, it's, it's bad that he held onto documents. It was bad he did all the other of stuff, but this one is core. So if there's any way to keep it alive, that'd be great, but it's just not going to happen because we know at the end of the day that we have a corrupt president who's going to put put in corrupt prosecutors who will do whatever they're going to do. Other question is whether Jack Smith will resign or wait around to be fired. And I'm not sure what the better plan is there. Maybe to make the point he wants to be be fired? I don't know.

0:45:13 Thomas: Oh, I think so. I hope that these folks don't preemptively again, if you just preemptively give in, you're you're you make them do the thing that we can say is corrupt and we can. And I think the media will actually like to tell that story. They will latch on to the corruption of firing Jack Smith.

0:45:19 Matt: I think so. Sure. And even if the DOJ has basically already announced they can't prosecute a sitting president, just make him do it and make him justify it. Have no problem with that. But let's talk about Florida. This is the one that really kind of hurts because it's bad that the DC January 6th case is not going to be given to history, like I said, but the Florida case has been dismissed for the dumbest possible reasons license by Elaine Cannon because she found this in this ridiculous logic that Jack Smith was not properly appointed and went with the Clarence Thomas concurrence on that. The state of the case right now is that it has been dismissed and it's on appeal to the 11th Circuit. And officially if they were to drop the appeal, the case would no longer exist because the dismissal would be final. And So Smith presumably we would have to withdraw the appeal and leave it to stand. Last event in this case, I just checked the docket, was Emil Bove filed Trump's brief on the 25th of October. There've been a couple of amicus briefs filed since then, but it's not been scheduled for oral argument. And I was wondering, if I were Jack Smith, to be honest, I would play this out. There's no reason not to. Get to the 11th Circuit, have them do the full oral argument, make them actually

0:46:29 Matt: Render a decision, because they can do it. And then we have it for history. We have what they would have have said one way or another. And I have to think that what they will say is that this is an unlawful dismissal. And at that point, the case gets remanded back to the district court. And I would hope maybe at this point, not remand it back to Eileen Gannon.

0:46:28 Thomas: Make them do it. Yeah.

0:46:45 Matt: Plenty of arguments not to let her have it again. But that's where things, of course, get messy again, because then you're putting Trump in the position of being able to dismiss his own case. But again, like you said, make him do it. Don't just give up the appeal. Let the old circuit render it, because they have have plenty of time. If the argument is scheduled within the next month or two, they can easily reach a decision before January 20th. And then we have that at least. We know what the precedent would be for this kind of thing. And that way, the next time that somebody wants to dismiss a special prosecutor on this ground, we've got two decisions, not just one. We've got the DC Circuit and we've the 11th Circuit saying that this is not a proper ground for dismissing. I really hope that's what he does and that he doesn't just drop the appeal. Other question about Florida that I thought was kind of interesting is what happens to Waltine Nauta and Carlos de Oliveira, who are the co -defendants for Trump, the sort of accomplices, alleged accomplices in the document case.

0:47:30 Thomas: Yeah. Shoot.

0:47:31 Matt: So those cases are still pending. They're up there at the 11th Circuit too, because they were all dismissed because Eileen Cannon found that they were, you know, obviously, right.

0:47:36 Thomas: Well, you should have gotten elected president. Whoever those people are. That

0:47:39 Matt: That's their problem, not the president. No memo that protects the body man. Thinking there was, you Know, if they wanted to, and again, I'm not, is going to go anywhere. But just theoretically, special counsel's office, before they close up shop, could refer those cases back to DOJ and let them decide what to do. And DOJ could keep prosecuting them. And again, I think just as a matter of showing that we are doing everything we can to respect the rule of law before the next guy comes in, Ithink that there's nothing wrong with prosecuting. Now, it's not going to look great, obviously, if Trump's case is completely gone and you've got the two guys that were basically doing what they were told being prosecuted. I don't think I really even support that anyway. But

0:47:39 Thomas: Was where he went wrong. Yeah,

0:48:13 Matt: It's an interesting question about what would happen with these other people that are not Trump because he doesn't have co -defendants in the other cases. Other question that I had in terms of if they keep the DC case open is, it's just a strange thought because you'd have the president as a federal criminal defendant who's been released on recognizance and is technically under the supervision of the court. And I was looking, I went to double check in DC what his release terms were. They're pretty simple. And honestly, they're so much better than anybody else's release terms at the end of this situation. Only real restriction... There's no travel restrictions, there's no check -in, there is no supervision, he just can't violate federal or state laws.

0:48:48 Thomas: Should have to make a parole officer his cabinet like it should be in his cabinet. It'd be really funny.

0:48:52 Matt: Just installed, just permanently by his side. He The remaining in DC is he must not communicate about the facts of the case with anyone Trump knows to be a witness except through counsel or in presence of counsel. So he'd still be bound by that. But otherwise, it's an interesting thought experiment about what if the president has an open criminal case. But there a universe in which Jack Smith could ask that the January 6th case be continued to 2029 and then resign or be fired. Again, DOJ, Wander Trump can just bring it right back, bump it up and say, we're dismissing this, we were null processing it. But Again, it is just as you said, a lot lot of this comes down to anticipatory obedience and how much you want want to give in before the things happen. And that's kind of a theme here.

0:49:28 Thomas: Yeah that's really important to not give in ahead of time. It really is.

0:49:32 Matt: For sure. For sure. So yeah, not great. I wish I had better news on that.

0:49:37 Thomas: Want to I mean the headline and the thing that's spreading I don't even know if I should call it a headline, but the thing that's spreading on Reddit and stuff is like, well, Merrick Garland met with a whatever and told him to wrap up the cases, and weak, spineless Merrick Garland. The What's truth about that?

0:49:52 Matt: Mean, it is DOJ policy. And I assume what the meeting is, is we have to figure out...

0:49:56 Thomas: I don'T even know IF there was a meeting. I think that might be bullshit, but

0:49:58 Matt: Yeah, that straight. Yeah. There was. But I mean I assume that they have a contingency plan already, that they were already prepared for this possibility. And it's a big office. Special counsel's office is like a little law firm, and you have to figure out how you're going to wrap it up and what you're going to do. I mean, it's going to be wrapped up one way or another. They know that. And so I'm sure they're just having strategy meetings and trying to figure on what to do, but know. We're going have to keep watching this because, again, not to say it again, but nothing like this has ever happened in American history. Plenty of other countries have gone through this. We just haven't.

0:50:25 Thomas: That's uh that's bad news I think I mean we may want to answer more of these questions um there's so many good ones and and also I really I'm serious about this lame duck project I think we should get on that mat I think we should really try to make some noise about what what should be done to um stave off the coming fascism uh that is at this point you writing's on the wall but we can still slow it down and and we ought to pressure biden to do everything he can for that so right well that's all we have time for today um matt I'm looking forward return to of the footnote fetish I still I hope you're not getting rid of that because I do love that segment uh

0:50:30 Matt: So many more yeah not at all we're gonna keep having fun here we

0:50:59 Thomas: Yeah thanks again everyone for listening please support the show if you can um safe out there keep your sanity and have a mental health plan as As Matt said in the beginning, I think that was good advice.

0:51:08 Matt: Take care of each other

0:51:09 Thomas: Right, we'll see you very soon.

0:51:10 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.