All the President's... Defense Attorneys

Transcript

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

0:00:00 Clip: You must never, ever give up or give in. You must keep the faith and keep your eyes on the prize. That is your calling. That is you mission. That is moral obligation. That is mandate. Get out there and do it. Get in the way. Change happens because people care. The people have the power to make this life free and beautiful. To make this live a wonderful adventure.

0:00:38 Clip: I still believe with all my heart, America can be a place where no child is left hungry, no community is left behind, and no one gets told they don't belong. Country is always worth it.

0:00:57 Thomas: Hello, and welcome to Opening Arguments. This is episode 1,089. I'm your host, Thomas Smith. That over there is real-life attorney, Matt Cameron. How you doing, Matt.

0:01:04 Matt: Oh, I'm just ready to talk about some lawyers. Let's do it.

0:01:07 Thomas: All right. Well, it's going to be lonely here. Just the two of us. Oh wait, record scratch. We're once again joined by the lovely and amazing Lydia Smith. How are you doing Lydia?

0:01:16 Lydia: Hello, pretty well and eager to talk about some of these familiar names and also less familiar names, I think.

0:01:24 Thomas: Yeah, I'm Gates takes up a lot of oxygen. I get it, justifiably so. But there's some real quieter evil that we need to talk about, and let's take a quick break, and then we'll get to Trump staff infection volume three in no particular order, because there's going to be a lot of these. We're And covering a lot lawyers, though. You point out last time, Matt, that and fascist regimes, it's sort of counterintuitive that they do require a lot of lawyers. You know, you would think like, well, it'S this lawless kind of takeover, but that's not really the case. Right.

0:01:27 Lydia: Understandably. Yeah.

0:01:53 Matt: It's the takeover part. You got to have a lawyer for it because you got to transition from law to new law. And have to say, working with people for the last 18 years who are escaping countries in which the law has either fallen apart or has turned hard on the way that we're talking about, it's really given me a perspective on the ways that we've things can go and how countries and governments operate at the point at which there is no real a rule of law, but there's the appearance of rule of law, like we've been talking about with Putin's Russia or Hungary or Poland sometimes. That's the kind of thing we're looking out for here, is how these kinds of picks can lead to the kindof government that people like Matt Gaetz and Donald Trump want us to have.

0:02:25 Thomas: You know, that a lot slavery where was legal. The Nazis legal, and it's not like I disagreed, but I think I didn't quite understand the point that I do now. They do is they just make it legal ,and then it's legal, and then it all seems, it different frame of reference in your mind, where you're like, well, they're just kind of following the law here that they've, you know, done so much legwork, to uh, just completely demolish the system before we got to that point. But I'm seeing it in real time. How kind that really is?

0:02:29 Matt: That's right. Right? You think about the January 6th plot. That was an attempt to have a completely legal coup. It wouldn't have been legal if you'd actually picked it apart, but it's something they could have turned to, and they could could have said, well, that was legal because those electors were invalid and we replaced them with ours. And then Mike Pence accepted the proper ones. And there you go. You've got a different government than you would have because of a legal coup. And that's the easiest way to do it. And I'm going to suggest, I think that what we've been talking about with the recess appointments is a soft coup. That is what we're looking at, is a tough coup. A soft coup of the American government, a bloodless coup in which they purposely abused the constitution and twisted around in a way that the founders specifically intended that we not do with recess appointments and put in people like Matt Gaetz, who we talked about last time, the underlings now that we're going to talk about that will be required to carry out his building. And again, remember, just in case everybody's forgotten, because we're so close to all this, I think maybe it's easy to forget, but Donald Trump specifically promised retribution. He

0:03:47 Matt: Promised to prosecute the people who had prosecuted him. He promised to prosecue his enemies.

0:03:51 Thomas: So funny how that's just kind of like, oh yeah. Background info. Yeah, no, he did probably. That's right. You're right. Matt. I forgot about previously on fascism. Trump had promised Trump promised retribution. And I honestly, I had both taken that for granted and just, you want to imagine him being back in power. That's like, oh, yeah, he is doing that that crap. Is the whole point here. Yep.

0:03:57 Matt: Just another New York Times headline. Yeah, that is not actually something a presidential candidate has promised the American public before. I just want to point out in case we forgot. Just worth saying these things out loud.

0:04:20 Thomas: Can't wait for the pundits to give me the did he keep his promises on imprisoning his well okay he's imprisoned this uh enemy and so promise kept there but this one they're still working on it so you know promise broken potentially can't

0:04:32 Matt: And both and Trump have talked about prosecuting the media. So look forward to that.

0:04:36 Thomas: So they can do that bit from the prison cell and they'll still be both sides and I'm sure they'll still be doing it they'll never learn their lesson they will see all right well this break um will get to it please support the show patreon.com/law you can avoid the ads you can get the goodies you can has Lydia and probably another one that'll have Lydia. Hopefully if we can get her, I don't know. She said she's hard to book. Honestly, Matt, if you, yeah, if he got, uh, do you have any connection or anything, Matt? Well, we'll see. We'll see if we Can get her talk to her publicist. Yeah.

0:04:54 Matt: Just worth the effort.

0:05:01 Thomas: patreon.com/law. Thanks to our supporters. You mean the world to us. You're the only reason we're still doing this and, join their ranks. Patreon reminder, this episode is still going to have T3BE. Doing my best to shorten it, but unsuccessful. So I guess you guys are just getting more content, even so after this discussion of Trump's staph infection, volume three, there will be T3B question the answer to 47, the question to 48, and the winners and the patron shout outs and all the usual stuff. Stuff. So stay tuned for that if after this break, we're going to get to it okay

0:04:53 Lydia: I'm pretty busy nominated

0:05:37 Matt: We're going to start with a couple of our favorites from Gavelpod, uh man responsible for the worst introduction to a cross-examination of all time in american legal history the and only the legend the man Todd Blanche not

0:05:48 Thomas: Boy Todd Blanche deputy

0:05:52 Lydia: To deputy attorney general yep second

0:05:55 Thomas: Attorney general so basics time what does that person do what does a job do just my

0:06:00 Matt: Matt gates wants I think is the answer there.

0:06:03 Lydia: Then yeah he would serve as an acting you matt gates is absent for any reason

0:06:07 Matt: And that is a very important point, Lydia, it's because won't be that much trouble to get Todd Blanche in, and he will serve as acting the day one. And under the Vacancies Act, he can serve as an acting, I believe,

0:06:18 Thomas: Like you get him in first because of the comfort oh I didn't think about that so he might be we might be looking looking at attorney general Todd Blanche first.

0:06:22 Matt: So a while. Yeah, for some time. And so under the vacancies act he can serve for 210 days with one of those appointments and there's actually I haven't gone fully into this to be honest but there's some kind of question about whether that might not apply to doj so that's and if there's any kind of open question you know they'll exploit it so it's somewhat never been tested open question but like a lot of these things that we're going to be testing uh if we have him and obviously gates is the guy he wants so he's gonna do whatever he can to get gates in but but Blanche is a good, reliable toady.

0:06:27 Lydia: Interesting

0:06:52 Thomas: He though? He's He's a reliable toady, but like, I, this is something that I feel like I have some expertise on now, Matt, because I have been a part of a great show called Gavelpod, patreon.com/gavelpod and it amazing how bad of a lawyer blanche has been in that case reminder they lost they lost badly now uh having the final laugh because it doesn't matter doesn't that that trump was convicted on 34 counts or whatever doesn't really doesn't who's having the last laugh it's not us but they were really bad at what they did blanche are all kinds of ways. I'm so glad we have Liz Skeen over there to explain New York kind procedures and law. And are all kinds the of things where, because he was a federal prosecutor and he's doing this, this was his first defense, right? And it was at the state level. He didn't know law the and didn't bother, you know, and this wasn't like day one, you know, like, oh, whoopsie daisy, better brush up. This was deep into the trial where he still didn't understand some of these very basic New York law things. That's the kind of grit and know -how and determination that you're going to get with a Trump admin. Men

0:07:50 Matt: Liz caught him multiple times throwing out federal rules in the state trial. Just good stuff.

0:07:55 Thomas: So to be fair their side does not understand that that's not Merrick Garland so maybe that's where they went wrong wait but isn't Merrick garland the one doing all the state prosecutions no he's not because it's a state it's different it's differently as

0:08:09 Matt: We have to produce the evidence that he's not. That's very important, Matt yeah.

0:08:12 Thomas: We saw last time boy

0:08:13 Matt: So talk Todd Blanche very quickly. We have talked about him in a way before, his background, but might remember he was a New York Democrat until about last year, and now he is a Florida Republican. He moved to live near Mar-a-Lago. He left a very, very profitable job at a very prestigious New York law firm called Cotterwaller, Wickersham & Taft, which as the name might I suggest, was founded in 1792. job has been to represent Donald Trump for the last couple of years. He has represented him in every case but the Georgia case. So he is all in for Trump.

0:08:43 Lydia: Waiting for steve sado to get a nomination his name has not been popping up yet like the only trump lawyer

0:08:48 Matt: Well, he's still got a job to do, potentially. So got to finish the case first. Yeah, for now. We'll see. We'll say.

0:08:51 Lydia: Yeah yeah deputy

0:08:51 Thomas: For now yeah all these things were reminding me of where it's like Like, huh, what a weird idea to go all in. Well, no, he's once again having the last last laugh. Lap.

0:09:01 Matt: Worked. Big swing, big risk, but he took it. And

0:09:03 Thomas: Now he's going to be attorney freaking general. No, he'll be acting.

0:09:08 Matt: Talked about this before, because he was on the list either for this job or for director of the FBI. I'm not sure which is worse, to be honest. But I should also mention, has represented other members in the Trump World team. He represented Paul Manafort for a while, as well as Boris Epstein, a big Trump guy. So So he's all in. And just play a few minutes just to get some words from the man himself. This is an interview. I think it was the day of the conviction when the jury came back on Trump. Let's go to the clip of him being asked about Trump's unique PR strategy.

0:09:37 Clip: I mean, is it a smart strategy to stand on the courthouse steps and rip the judge who's going to sentence you and decide your fate and freedom in six weeks? I mean you say rip the, rip the Judge, but it's also President Trump expressing his very strong views about why he didn't get a fair shake. So, yes, it's a strong strategy. And then, of course, it means that we have an argument we have to make to the judge, who has been criticized, but we still didn't make that argument at all. I hopefully will be successful. You're confident on appeal? Yes. What's your number one issue?

0:09:54 Thomas: Especially if you're going to Be elected president. Yeah, fine.

0:10:06 Clip: Don't give me a legal brief.

0:10:08 Thomas: Oh, don't worry. He doesn't have one.

0:10:10 Matt: So yeah, I also listened to an interview with him on a defense attorney podcast where he was talking, and the guy actually asked him directly, so what's it like to stand next to Donald Trump? Like, we see the look on your face, right? And he's like, oh yeah, no, it's fine. My client has a right to say whatever he wants. I don't try to control him.

0:10:25 Matt: So I'd wondered that question myself. One more clip from this interview at 5.30 when he does some of the bootlicking that got him this job.

0:10:32 Clip: Was the president's personal reaction once he went behind closed doors and in the waiting room? I was, I still am today shocked at how he reacted in a very positive way. There's this public persona of President Trump. He was stronger than everybody around him. I mean everybody saw when we walked out of the courtroom he huddled with everybody that

0:10:49 Thomas: We were all crying and he took us in his big, strong arms.

0:10:51 Clip: Wasn't us telling him what to

0:10:53 Thomas: He said, hey, it's going To be all right.

0:10:53 Clip: Do That was him giving us confidence. It really was of what he knew he needed to do and what he needed say

0:10:59 Thomas: He went out and he shot 18 holes in one and scored 18 on golf yep

0:11:04 Matt: And yeah, he weighed in at 185 and perfect blood pressure. Yeah.

0:11:09 Thomas: Weird they had a scale before the trial yeah

0:11:12 Lydia: Was an interview with um the financial times that he did where he said that initially like donald trump was really wanting him to be like roy cone um terms of like how he approached the case and his demeanor and all that and todd blanche was like that's just not me um yeah and so he kind of put his foot down about that and it sounds like they kind of came to an agreement that trump wasn't going to force him to be somebody he wasn't and so blanche wasn't gonna try and control him and um that's sort of why we saw those things whereas

0:11:20 Thomas: That's not him yeah yeah

0:11:39 Matt: But I will point out that that at least Todd Blanche was a prosecutor for about eight years, and he won an award, SDNY, for the 2013 True American Hero Award issued by the Federal Drug Agents Foundation. So the narcs love him. So I will say it's worth pointing out that very few of the people that Donald Trump is trying to get into these jobs have the relevant experience, but at least Todd Blanche has worked at DOJ. So low bar, but here we are. Beats his boss, Matt Gaetz.

0:12:03 Thomas: He's gonna be the training wheels for matt gates yeah

0:12:07 Matt: The guy actually doing the work. That's what deputies do. So, yeah, yeah. Right along with him is another familiar favorite, Emil Bove. Bave. We have less to say about. We've generally thought he's been doing all right. He's had his moments.

0:12:10 Thomas: This guy's gonna Be The Guy Doing That is okay all All right.

0:12:20 Thomas: Yeah, he's been, yeah, again, TLDR on Gavelpod, not amazing or anything, but not like as incompetent or crazy as some of the other Trump lawyers. So kind of, yeah. What's he getting? I missed this.

0:12:30 Matt: Pretty solid. And

0:12:33 Lydia: Be number three at doj so

0:12:35 Thomas: So he'll be doing all the work. Cause I look, Todd Blanche to me, I don't know much, but he has the vibe of someone who's not going to be doing a lot of work just based on the trial appearance. Like I feel like he kind of identified early on that, you legal work. Wasn't going to me how they get out of this Trump thing. Um, for one, they weren't going to get out it, but also, it you seemed like he found a way to not do much work while doing his thing. So I'm going to go ahead and say, Bove is going to to be the one stuck with all it's gonna it's going to roll downhill as they say oh

0:13:03 Lydia: And so um principal associate deputy ag then bove will actually serve because he doesn't need to be confirmed um so he will serve as the the acting deputy AG while Blanche is going through Senate confirmation but then

0:13:12 Thomas: So this is like magic the gathering when you cast fascist assholes on the stack they resolve in reverse order so we're gonna I didn't even realize so it's actually gonna be bove first and

0:13:26 Lydia: So will be doing work from day one and then yeah it's a matter of timing I guess if he's serving as deputy AG acting or acting AG I don't know if he would be able to serve as acting AG I don't know I'm not sure how that works

0:13:38 Matt: We're going to be talking about the Vacancies Act sometime soon, because we have got to, and we've got a great guest for that, actually. So coming up soon. But I will point out that Bove and Blanche actually have teamed up before. They used to work together at the SDNY.

0:13:49 Thomas: I an album oh no sorry that's

0:13:51 Matt: Yeah, I think Bove is very much the Garfunkel here. But they both at SDNY and apparently were pretty close. And when Blanche started up his own firm, Bove was the first person to come in as a partner to represent Trump.

0:14:02 Lydia: He move to Florida too or is he still in New York

0:14:03 Matt: I don't think he did. I think he's still in New York. Eric.

0:14:05 Thomas: A good question so it wasn't a deal breaker though Like, all of a sudden just, like, a MAGA and moves to Florida, and you're still like, yeah, cool. That's interesting.

0:14:15 Matt: Still making sweet music. So So that rounds out what we now about Trump's DOJ so far, at least his intentions for it, for now.

0:14:22 Thomas: Now. As of recording, by the way.

0:14:24 Lydia: Of recording yeah I have been refreshing the list by the way like as we've been recording to see if any news drops but yeah as if now yeah but

0:14:25 Thomas: Don't add us. Yeah. Boy,

0:14:30 Matt: That's They do keep coming. But yeah, so we are talking about about somebody with absolutely no government experience, at least a government lawyer, and two people with a decent amount of prosecution experience, but still not maybe what you'd expect to be that high up in DOJ. And two of them happened to be his defense attorneys for the last couple of years. So we'll see.

0:14:46 Thomas: That is weird.

0:14:47 Matt: Is very strange. But no, no,

0:14:48 Lydia: It's not that weird for trump as as we'll discuss next because his solicitor -general pick is dean john sawyer who was his attorney for um v us uh the immunity immunity so

0:15:01 Thomas: I don't remember this guy being particularly good at his arguments, but it could also be that I don't think they were good arguments huh

0:15:08 Lydia: A pretty like like education background and matt I'm sure you saw this too but like he got a bs in electrical engineering and a ba in philosophy like had double major from duke then he went to university of oxford on a road scholarship got a ba and theology and then went to University of Notre Dame got an an MA in philosophy. Then he went to Harvard Law, graduated 2004. And from there, he clerked for Judge J. Michael Luttig and then Antony Scalia.

0:15:37 Lydia: Not respectable, but like, I mean, kind of a mix, right?

0:15:34 Matt: Respectable not respectable so right

0:15:37 Thomas: Well in terms of their side that's that's performance right there like that's

0:15:42 Lydia: Quite a bit of experience.

0:15:43 Matt: I mean what is actually a pretty reasonable guy but obviously you know the scalia association is not great uh is no he's really like over -educated, extremely over -educated.

0:15:46 Thomas: That's really interesting yeah what are

0:15:52 Matt: He must be a smart guy.

0:15:52 Thomas: You doing with this group of people this guy who has a million degrees and loves school uh to be a part of the party that's just going to get rid of all of that

0:16:00 Matt: Yeah, and as we know it.

0:16:02 Thomas: What

0:16:02 Lydia: Interesting. Yeah because I mean he's, served at Missouri state level um attorney general solicitor solicitor general there yeah yeah and uh was actually involved with the um anti -abortion case where missouri health officials admitted that they were tracking menstrual cycles for planned parenthood patients yeah yeah

0:16:08 Matt: Solicitor General, yeah, same job.

0:16:19 Thomas: Without

0:16:20 Matt: You don't get to be the Missouri Soliciter General or Attorney General without making some terrible arguments.

0:16:25 Thomas: A few menstrual cycles geez

0:16:26 Matt: Yeah. Will point out just to say this, that this is another example of Trump actually appointing someone that has relevant job experience, at least. That's again, low bar, but he was Solicite General for a state, and he's an accomplished appellate arguer. But he was one of the main guys to join the lawsuit trying to stop the presidential election in 2020, along with...

0:16:32 Thomas: Wait

0:16:45 Matt: I think so.

0:16:43 Lydia: Wasn't he council of record for that yeah

0:16:46 Matt: I think he might have been top of the line there. The number of states, but it was all red states that were joining up trying to start the election.

0:16:50 Lydia: It was like 17 states

0:16:52 Matt: Yeah. Yeah, not great. Was appointed by Josh Josh Hawley, though, had to be Solicitor General of Missouri in 2017.

0:16:59 Thomas: The current solicitor that the person we love uh -logger now this sucks because kind of would be rooting for someone who's completely unqualified and terrible at this job, right? Because doesn't this person, we should talk about the basics of these positions. This is the person that defends, doesn't take the government side when they're in court, right, in front

0:17:01 Matt: Ruehler, yeah.

0:17:02 Lydia: Prelogger.

0:17:17 Matt: In front of the Supreme Court, specifically.

0:17:18 Thomas: Of the Supreme Court. So, yeah, I mean, not that it matters a whole lot because you're really, you're using a game genie at that point. You're kind of just cheat codes all around. So it doesn't really matter how good you are. Like, prefer that Matt Gaetz take this job. Like if there's that would be actually the best. If you had to choose a nightmare, Mary Kill of this DOJ, Solicitor General and whatever of these a -holes, I wish they had someone incompetent for this job because it actually, you know.

0:17:44 Thomas: So, because like we're going to hear this person arguing for Trump's position a lot. And so it sounds like someone who does have some kind of experience there.

0:17:44 Lydia: This is a smart appointment. Yeah. He

0:17:53 Matt: Taking up the government's terrible positions in a state that has a lot of them. So

0:17:57 Lydia: Has like experience with some kind of like really controversial sort of defense too. Like in 2015, there was a priest that was accused of sexually abusing children and he was the defense attorney. He ended up being acquitted. The was acquitted and then he ended ended up turning around and um the family um so yeah Sawyer helped him sue the accusers um they won uh so

0:18:20 Thomas: Boy, that's one of those where like, yeah. If it was some sort of made up thing, then I guess good. But I don't know. I'm going to be agnostic on that.

0:18:26 Lydia: I know it's like a hard thing right it's a sort of a a situation to be in um but I think he's Catholic too too.

0:18:33 Thomas: You said you said for Scalia. Scalia?

0:18:35 Lydia: Yeah.

0:18:35 Thomas: Yeah, he might be Catholic.

0:18:35 Lydia: And he, University of Notre Dame. Yeah.

0:18:36 Thomas: Yeah, it's probably Catholic. I'm going to go ahead and say he's Catholic.

0:18:37 Matt: The theology degree, yeah? Yeah. Well, just one, but two different appellate arguments. He was asked whether SEAL Team 6 could assassinate a presidential rival.

0:18:46 Thomas: Boy, I wish I could get softballs like that. Could be, I could, I could argue in front of the Supreme Court if they're going to ask me that. Can the president just kill a guy? No. Wow. Thomas, you're amazing at your job.

0:18:54 Matt: Is not the right answer, actually. It turns out that he's going to have to be impeached and convicted before you can think about prosecuting him. So you got that one wrong, Thomas. Sorry.

0:19:05 Lydia: Man.

0:19:06 Thomas: But then if you don't do that, that one went both ways though. Cause if you don't impeach him, then he can't be convicted because that was the time that you were supposed to convict.

0:19:15 Matt: Hold him accountable.

0:19:16 Thomas: It really was this one. They went both sides of that argument.

0:19:16 Matt: That sort of thing. Yep.

0:19:19 Thomas: Like you're damned if you impeach and you're damned if You don't like either way.

0:19:21 Matt: Heads you win, tails I lose. Yep, I

0:19:23 Thomas: Heads. Trump doesn't be held accountable and tails. He doesn't Be held accountable. That's

0:19:28 Lydia: And to kind of tack on at the end of here for Solicitor General, Scharf was co -counsel for Trump v. U.S. and he's not being left out because all of Trump's lawyers are getting all their rewards right now. Actually was trying to be ag over in missouri um taking on incumbent andrew bailey and leonard leo was like funding his campaign directly um he will sharp calls leo a dear friend and mentor but he ended up losing the primary um but very recently just a few days ago he was tapped for white house staff secretary and assistant to the president so um have a role too all these people yeah

0:19:51 Matt: Of course, naturally.

0:20:05 Thomas: I'm sure anyone involved at any of those law firms should be like, Oh, Hey, um, reminding you, do you remember you You have to remind them the case. Hey, do you remember the case I defended you at? Yeah, I was, yeah, I wasn't like the main lawyer, but I definitely, I helped like a lot on that. So just, do You have any positions lying around that, you know, pretend to call about a legal bill? Hey, your defense attorney, number 12, that you forgot about, you haven't paid this bill, but you know what? I was thinking like, don't worry about that.

0:20:15 Lydia: Pretty much yeah worry about it I mean he wasn't gonna pay it anyway but

0:20:36 Thomas: Like, yeah. Yeah, like, hey, that's on me because it's such an honor, sir, to defend you in whatever case this was. Hey, got any positions lying around?

0:20:42 Lydia: Let's

0:20:46 Matt: Talk about the White House counsel. First of all, does anybody know who the current White House Counsel is? Exactly.

0:20:51 Thomas: Remember. Yeah.

0:20:53 Matt: Because he doesn't need him. His name is Ed Siskel. He looks like a nice guy, but not worth talking about. So, I mean, great work, Ed Siskell, because you haven't been in the news.

0:20:50 Lydia: Yeah

0:21:03 Thomas: Yeah, or great work, Joe Biden.

0:21:04 Matt: That's true. That's true, Fred.

0:21:03 Lydia: Yeah yeah

0:21:04 Thomas: We're not breaking the law a bunch, I guess.

0:21:06 Matt: Yeah. I had to look it up. It's the kind of thing I would usually know, but of course, we're in a fairly normal period of time right now. But obviously, White House counsel was a very busy job in the first Trump administration, mostly held by Don McGahn, who is good friends with the actual nominee this time. He's going to be Bill McGinley, who looks like to me is the most normie of all of these picks, like normie Republican.

0:21:27 Lydia: It's interesting you know Bill um McGinley uh has has a very long career in private practice with Holtzman Vogel. But he did participate in Trump's administration, served as cabinet secretary, and he left early. He actually, yeah, no, he left in July 2019, ended up resigning. And the Hill ran a piece saying that he was one of the last remaining senior staff members from the start of the presidency like he lasted the longest yeah um everybody said like he was really great at his job um he led a dedicated team uh had a reputation for getting results he would always like get involved with cabinet secretaries that were pissing people off he would kind of be the mediator um really try and work to resolve differences between folks um so all of people who worked in the trump administration at the time only had like great things to say about Bill McGinley. But I imagine he was probably really worn out after two years, just to Scott Pluitt about all of his ethics concerns, and apparently like worked to force him to resign. He ended up going back to private practice. He's coming back um has called him a smart and tenacious lawyer um you he has a pretty good education too bachelors at ucla masters at csu long beach interesting and interestingly then he got his um at george washington university law school um uh other thing that I think is interesting is that um recently was involved with the um was like um committee through the rnc called the election integrity team and christina bob was the head of it I don't know if you remember her she's

0:21:41 Thomas: Disappointment appointment or something? Boy,

0:21:57 Matt: Adults in the room? I

0:23:03 Lydia: Kind of like yeah yeah she was yeah election denier um up going to oan um work there for a while and then left there to start serving on the save america political action committee for trump um suzy wiles and then yeah and she's He's been kind of overseeing election integrity, which I guess if you have like a hardcore election denier.

0:23:03 Matt: Do. Hardcore election denier.

0:23:04 Thomas: Don't think I do. I Great job. Mission accomplished.

0:23:26 Matt: Was also indicted in April 2024, along with a number of other Arizona Republicans, so that she's got an open criminal case. I don't know if she's going to end up in the administration, but we will see. Nothing named yet. Speaking of McGinley real quick, I want to talk about the pipeline with Jones Day, because that was his previous firm where he came up. Because Jones Day I've been hearing about my entire legal career as a very well -respected institutional DC firm. And they're very famous for doing a lot of Supreme Court work. I think that of all the DC firms, they've had the most Supreme Court arguments. It's a little concerning because it has become a pretty MAGA place over the years. And they did a lot of pro bono work to screen candidates for Trump very conveniently, and they ended up putting in a lot of their own people, including McGahn. Just something to look out for, that you've got Jones Day and also Squire Boggs, which you might remember Michael Cohen was of counsel for Squire boggs. He also worked there. Yeah, like you said, Lydia, I just was looking around to get a sense of what people think about him. And you were talking about the colleagues in the Trump administration. I found CNN talked to his colleagues at Hotsman Vogel, and they really have a very strong impression of him. They said he's very genial, not a publicity hound. I don't know anyone who dislikes him or has a complaint about him, I've never seen friction in his dealings with other clients or with other lawyers. That is pretty unusual to have somebody who has no friction with any other lawyers, I try for that myself. But when you're at that level, I think that's pretty unusual.

0:23:46 Thomas: Yeah, I feel like I've even heard of them. Had some friction with some lawyers.

0:24:44 Matt: Expect you have. Yeah, I will also mention that one strike against him is that Bill McGinley has said that Jonathan Turley was his favorite professor in law school. So yeah, Bill, the

0:24:55 Lydia: Turley with all the bad legal takes.

0:24:57 Matt: Worst legal takes, the only guy that the house keeps dragging in for everything they need when they need a bad legal take, that's their guy.

0:24:58 Thomas: Remind us. Oh

0:25:03 Lydia: He's like the only guy like all the media appearances, too. He's the one that like is always going to be, you know, the pro -Trump line, basically. He's just wrong.

0:25:10 Matt: Both impeachments had great opinions in both engagements. That was the guy that they could find.

0:25:17 Thomas: But kept his shirt on or something yeah which

0:25:19 Matt: Little more respectable. Just a little more. Just kind of the Jones deification of everything. Guess it's concerning to me. Again, this isn't really my world, the big white shoe, fancy corporate law. Seeing a firm that I thought was pretty middle -of -the -road, road, normal conservative DC firm starting to become more openly pro -Trump. From what I read, they have a very strong MAGA wing at this point that is taking over. So not great. This, again, if you're talking about the way that fascism institutionalized, the way that managed democracy comes into place, the ways that authoritarianism is allowed to flourish, you've got to have these kinds of lawyers who operate at this level, because otherwise it just doesn't work to but Bill McGinley, like I said, the Otherwise, most normie and straightforward of these appointments, and arguably pretty qualified. He's also, his background is in election law, I should mention that, which is a little concerning.

0:26:02 Lydia: And next up we have you kind of talked about faces from the past coming forward to the future that's the same case here with the trump named for u .s attorney for the southern district of new york jay clayton um jay Clayton is someone who just very quickly uh his bs in engineering from from UPenn, economics, and King's College, and then went to UPenn for law. He clerked for the district court for Eastern District of Pennsylvania. And then he did private law practice with Sullivan and Cromwell. Partner in 2001. But his area of expertise is mergers and acquisitions, capital markets offerings, and he had a whole host of Wall Street clients, including Goldman Sachs, Deutsche Bank Volkswagen and also the Weinstein company not a Wall Street client but just characters and was the SEC chairman during the previous Trump administration the the person you'd want at the SEC someone with very very deep connections with Wall Street his wife also worked for Goldman Sachs and then she had to resign when he was appointed of course But,

0:27:03 Thomas: Remembering from covering the first trump term how much goldman sachs there was so much yeah

0:27:08 Lydia: Lot of Goldman Sachs. And while he led the SEC, that when the SEC charged the fewest number of insider trading cases since the Reagan administration. Administration.

0:27:17 Thomas: Well I bet they just were on their best behavior though is the thing

0:27:20 Lydia: Jay Clayton is also known because he was, from his telling of it, he wanted to move back to New York. He was kind of done with DC, wanted to go back to New York, and so he was going to leave the administration, and they wanted to find a different spot for him. This also coincided with Jeffrey Berman, who was the the SDNY U.S. attorney, and all of these cases that we have been dealing with now that were kind of percolating at the time. So Bill Barr had announced, I guess, he announced that Jeffrey Berman is stepping down and Jay Clayton were really excited to nominate him to take over. Then Jeffrey Berman issued a statement immediately after and he said, I learned in a press release from the attorney general tonight that I was stepping down as a united states attorney I have not resigned and I have no intention of resigning my position to which I was appointed by the judges of the united states district court for the southern district of new york I will step down when a presidentially appointed nominee is confirmed by the senate until then our investigations will move forward etc etc

0:28:22 Lydia: So wanted him removed basically basically, because he was not following their orders about what was going going to be investigated and continued to be investigative in New York. Went back and forth for a little bit, Barr and Berman. Was pretty pissed that Berman came out and said that.

0:28:15 Thomas: Awkward that's right yeah I

0:28:39 Lydia: Said, okay, you know what, how about your deputy replaces you temporarily? And that was enough for Berman, he's like, okay fine, I'll leave because she's going to step up and I feel like investigations are going to continue, things will be safe with her. Like the integrity of this office is going to be okay. Yeah, I he wrote an entire book about all of the times that Trump and the administration wanted him to go after his political enemies and all the times That Berman had to say no.

0:28:37 Thomas: Remember this yeah so

0:29:05 Lydia: Yeah.

0:29:06 Thomas: What do we think is going to happen this time so

0:29:08 Lydia: They wanted Jay Clayton to go in there. Back And in 2019 um now they're just kind of continuing he never got the job no no

0:29:12 Thomas: He never got the job before okay it wasn't like a temporary thing with that with or whatever okay

0:29:19 Lydia: Sorry it was 2020 um so uh by the time that they were looking at doing um confirmation hearings and everything then uh election had already happened yeah in

0:29:29 Thomas: I gotta think that this is a pretty important one it's almost like this would be somewhere to put matt gates because like this is going going to be another, well, I guess the Attorney General's pretty good for that too. This is going to be one where it feels like Trump is going to have, obviously you a sore spot here for being prosecuted in this court, right? And you would think that he's going to especially want someone to do the same thing, but for the other people.

0:29:51 Lydia: Coordination with the the Justice Department too, right? So in his book, in Berman's book, he said, a summary of it is, you know, that it paints a picture of Justice Department officials motivated by partisan concerns in pursuing investigations or blocking them, in weighing how forthright to be in court filings, and in shopping investigations to other prosecutors' offices when the Southern District declined to act.

0:30:13 Thomas: Forthright to be.

0:30:14 Lydia: They wanted to have allusions to Trump scrubbed from the charging papers for Cohen yeah try and like like clear all connection there on paper um oh and then um they wanted him to go after John Kerry because of the negotiations with Iran and the nuclear deal yeah yeah so they wanted Him to go After John Kerry and he said no

0:30:35 Matt: Yeah. A reminder to listeners that this is the most important U.S. attorney. And of course, going to the mother court, we got to mention the mother Court. We're not going to get through it without it. Yeah. And I found a quote from a, so he obviously, just to be very clear about this, he was a Wall Street guy. He still is a Wall street guy at heart, of course. And he was running the SEC, which is supposed to regulate Wall Street. And now he's going on to SDNY, which has been a big part of his career. Prosecute Wall Street. That's not great.

0:30:40 Lydia: Court also

0:30:42 Thomas: That's right. It.

0:30:59 Lydia: Simultaneously into crypto now he's an advisor for fireblocks which is an israel -based cryptocurrency firm and has never served as prosecutor but gonna be coming up to sdny right

0:31:03 Matt: Way into crypto. It's funny you mentioned that because he was actually, this got overshadowed a little bit when that list came out a few weeks ago that Eileen Cannon was in the running for AG, but he was actually the top choice for AG originally in that list because he's pretty well known to be a loyalist. The headlines that I saw were moderate Trump loyalist, which I don't even know that that's really a thing. I don't think Yeah.

0:31:31 Thomas: Moderate Trump. Yeah. Moderate Nazi.

0:31:36 Lydia: Actually if you want to click on the video I sent you um actually getting grilled a little bit um someone I miss dearly from the house of representatives katie porter order and

0:31:57 Clip: How many of your fraternities require a big change in your approach on the SEC? Do you think that independence from the president is necessary to agency independence? I think agency independence is independence from whom? I interact with new people, I interact agencies. Independence does not mean isolated, but independence means doing what you think is right based on your experience. Do you think independence from the President is possible if you and the President are both your buddies? Um, I absolutely do, because I do my job every day without fear or favor. And we do justice at the FCC, and I think if you look at the record of the FCC it's absolutely clear. How many times have you and President Trump got together? I'm not going to get into the room, because this is...

0:32:16 Thomas: Interact. That is not the... Sometimes we play against each other.

0:32:49 Clip: Is it a large chamber and you have trouble recalling it? No. No, no, we've looked. I have played golf with the president, I can't believe that.

0:32:59 Lydia: Oh I miss her

0:32:59 Matt: Regularly, it sounds like. Yeah, yeah, yeah. And it's scary what you said about Berman being asked or told to do all these things, because I found a quote from somebody who used to work with him at the SEC. Christina Lipman said that the best way to use him, Clayton, is to put him in a role where there's a specific mandate. He will deliver. So not great when what you want to deliver is prosecuting your political enemies. Yeah alone, I mean, it'd be bad enough that you've got this Wall Street guy that is so conflicted and was supposed to be prosecuting Wall Street. That's bad enough. But I think he seems like he's pretty malleable. I will say I was a little surprised only because I remembered him going to war with Elon Musk very briefly. Think it was 2018.

0:33:06 Lydia: Interesting uh

0:33:38 Matt: SEC sued Elon Musk because Elon Musk said something that he wasn't supposed to say in a tweet about how he'd secured some funding to to take Tesla private. Actually reached a settlement with the SEC that required the company lawyers to vet Elon Musk's tweets, which I'm sure must have made him very upset.

0:33:55 Matt: So I guess the calculus still worked out. Because right now, I'm sure you've been saying that Elon Musk is just hanging out at Mar-a-Lago. He just lives there now.

0:34:03 Thomas: I bet.

0:34:03 Matt: So I have to think that he was aware that Jay Clayton was going to get this job, but I guess there's only so much he has to say at this point to Trump. Who knows?

0:34:03 Lydia: The

0:34:10 Thomas: The failure of the SEC on Elon Musk is just unreal. Real I mean the the amount that he can just violate whatever and then at worst he'll get a couple thousand dollar fine or whatever just nothing you know and

0:34:22 Matt: Very surprisingly enforced that when he was into that but

0:34:24 Thomas: It's yeah and it's like the things he did um dollars at stake in some of the things he did were a lot higher you know so it's one of those like it's worth it to him to just break the break the law and get a little fine or something when meanwhile what he might have been doing for any number of these alleged things was buying up a bunch of stock without telling anyone and then therefore getting a lower price that the market wouldn't have, yeah, had had to disclose things properly. So stuff that's worth millions, if not billions of dollars to him. And then, yeah. I'm a little fine or people read over his tweets now. So it's fine. Awesome. Oh,

0:34:57 Matt: Think this is gonna be good for morale and doj because this is the prime spot this is the one that you work your entire career to get and you're just dumping somebody in that has no criminal law experience it's pretty unusual but again that is the theme here is they're loyalists that's the only qualification that's all you need yep

0:35:08 Lydia: Loyalists yeah yeah exactly and bonus points if if there's a tie to israel that's

0:35:13 Thomas: Right. Well, as of time of recording, I Think that's It for DOJ, and the and the Lawyers, but much more to come. I'm ignorant, but I honestly didn't even think of the fact that Trump gets to appoint someone to take over at the SDNY. I just, I don't know why. I didn't think that was one of those things that now in retrospect, I'm like, well, yeah, obviously, there's but so many ways that this is going to go bad that, um, hard for the average Joe to keep in their mind, I guess I will say.

0:35:38 Matt: I got bad news for you thomas he also gets to appoint 92 other other US attorneys. So have to watch those too. That's

0:35:44 Thomas: But not all of them are the mother court, you know, cousin Well, that's terrifying, but we'll have have it the breakdown for you. So much, Matt and Lydia. And see you next time.

0:35:45 Lydia: Not the mother court yeah you good

0:35:54 Matt: Later.

0:35:58 Clip: I just know, that you are gonna kick that bar's butt, out of here, you know, No.

0:36:03 Thomas: Now it was time for Thomas takes the bar exam T3BE. This is the answer to last week's question 47. then we'll have a new question 48. of course the shout outs, the winners, all the good stuff. Heather, why How are you doing today?

0:36:16 Heather: All right. How are you doing?

0:36:17 Thomas: That all depends on how this question went. Yeah, remind us what question 47 was.

0:36:20 Heather: Well, this was about Gabriella, who was having some stomach pains and needed an appendectomy. Her And and her doctor, Dr. Jekyll, were talking about the risk of surgery. In the middle of the doctor explaining to her what might go wrong, she kind of threw her hands up and was like, you know what, I don't want to hear anything else. I need the surgery. The surgery, there were some unforeseen complications, and she died. Her Estate sued the doctor. And we're trying to figure out who is going to win. Jeckyll said that he provided informed informed consent. Her estate said that the doctor did not. And we're just trying to figure out where we're at in all of this craziness.

0:36:58 Thomas: Then Dr. Mr. Hyde, Mr Hydes like, I killed her, but no one seems to care. It's just about always Jekyll, Jekyl, Jepyll. He's getting all the, all the attention.

0:37:04 Heather: That's right. And so if I recall correctly, you were saying that this was a torts question. What made you think this was towards question?

0:37:10 Thomas: I can't really think of anything else it would be. So either I'm a failure of imagination or it's torts mmm yeah

0:37:18 Heather: You were right. It was a towards question. Anytime there's like a, I always say civil legal wrong involved, right? Or just you kind of got two people kind of suing each other over something that goes wrong. That is a really good tip off.

0:37:28 Thomas: Over who killed who yeah

0:37:29 Heather: Yeah, exactly. Talking a lot about informed consent in this question. And that's not a subtopic. That's like a deep, deep You have skipped a lot of steps. It was a really, really deep part, so you already identified exactly the thing that the question was trying to get you to see. But we get that, there's a subtopic within torts that we're going to talk about today, and that's called negligence. This was a about negligence, this gets asked on the bar all the time. Part of the way that I knew this was an negligence question was because we had an unforeseen complication. The reason I can tell you this was negligence was because there was no intent. So a lot of times negligence versus intentional torts is because negligence is like, whoops, something happened on accident, versus intentional torch like assault, battery, false imprisonment, where somebody intends to do something and harm results. So those two things are kind of a lot of times seen on the opposite ends of the spectrum. So like I said, when I saw unforeseen complication, and we had kind of, I won't say an accident, but sort of happened, that's when I knew it was a negligence question. Question. You might be wondering, how do we go from negligence to informed consent, right? How do we make that big, huge leap? I'll tell you. Don't worry. For a claim to be successful, you often hear for negligence, the plaintiff has to prove duty. Have to identify the requisite standard of care. Have to also identify breach, and then causation and damages. Charges. So let's start with the first one, which is duty, because these are all elements, meaning that the plaintiff has to prove each one in order to win. So that means that our friend Gabriela's estate estate has have to prove all of them. So let's start with duty. Defendant must owe the plaintiff a duty of care to prevent a foreseeable risk of harm. I our defendant is our Dr. Jekyll, and our plaintiff is Gabri - well, the estate, but I'm just going to refer to the plaintiff as Gabrielo for ease purposes. You might be wondering, what does that look like in in this circumstance. Make it really simple. Kind of relationship do we have here, do you think, between the two? Like, how would you characterize this relationship?

0:37:48 Thomas: Interesting buddy cop movie no I don't know yeah we got a patient relationship hey

0:39:29 Heather: Exactly it, right? Yay! Listen, buddy cop sounds really good right now. Exactly. And a lot of us know that there's a relationship, that relationship that the doctor is, obviously, as part of their health care, I like to think, in the best exam, right? That they are to prevent perceivable harm, right. We like to think of that as part of the healthcare part of that. So obviously here we have Dr. Jekyll who's required to present harm to his patient, right, Gabriela. So we can establish that duty right away. There is a duty in that relationship. I always like to add in standard of care here. Although you might not hear that, or if you've been a law student or you're a lawyer, you might not have heard that built in. I'm going to explain why. Really important not to skip this step, and you'll see exactly from this question why. Of care is the way in which the defendant has to act, right? Default rule here is to act as a reasonably prudent person, but oftentimes there's going to be a heightened standard ofcare depending on the group. A good idea to know if there's a heightened standards of care, is to see if there is a prefix fix or a suffix that's related our defendant. And here, Thomas, as you so eloquently pointed out, we've got a doctor in the house.

0:40:32 Thomas: Just a doctor Doctorate in philosophy, though, I shouldn't really.

0:40:35 Heather: A moment in the airplane where somebody goes, is there a doctor? And this guy like raises his hand.

0:40:36 Thomas: You can't hold me accountable. Why did you even get the gun to me? I don't know anything about this.

0:40:42 Heather: Exactly. Dr. Jekyll, who luckily is an actual medical doctor, not a philosophical topical doctor. We've got to make sure that that he standard of care. He's going to have a heightened one, as hopefully a doctor should. What is this? And this is exactly, Thomas, what I was saying earlier that you identified. Heightened standard of cares is they must provide informed consent, meaning they're under a special obligation to explain the risks of a medical procedure to a patient.

0:41:04 Thomas: They don't have to, like, be good at being a doctor or anything. It's just that's all they have to do.

0:41:09 Heather: For the purposes of the bar exam, this is the answer. Sorry. Listen.

0:41:11 Thomas: I guess, you know, back in the day, doctors really, really didn't help much. It like, well, I could reach inside with my ungloved hand and try to rip it out. Or, you could just do some opium or something, like one or the other. And it was more like, yeah, they don't have to be good at any medical stuff, but they do need to inform tell you of that.

0:41:29 Heather: Here. You don't feel so good? You have a little bit of a cough? Here's another cigarette. But exactly for at least for the purposes of this they've got to talk a patient in advance of their the patient's decision to agree to a treatment. They've just got to explain the risks of the medical procedure and then the patient'S decision to consent with that information is referred to as informed consent, right? That's where we're we're going to start, right? And we know here it says, Dr. Jekyll informed Gabriela. Ah, yes. So that's a good start to suggest we might be on our way, right, started to explain the risks that included infection at the site of the incision. Dr. Jeckyll could explain the additional risks associated with the surgery. Gabriola stopped him and said, please don't tell me anything else. So now we got to decide whether or not that was enough. So you did a good job here. So let's walk through. Were saying between A and B, you noticed that there were some differences. And you pointed out that the words bound and all were part of how you eliminated this answer choice. Does my memory serve me today?

0:42:25 Thomas: Yeah. Because they were pretty similar. But a being yes, because Gabriella did not give informed consent. Of the no nonsense. Yes, because Dr. Jekyll was bound to inform Gabriella of all the potential risks. And I think it's sort of just that little bit more universal language. I'm not 100% sure, but it's just like bound and all the potential risks feels excessive. Like, yeah, also the roof could cave in on us, you know, or something. You know, like I just felt a little too, you never, you Know, a little to what's the word expansive, a little too expansive. So that's really the only way I did that.

0:42:59 Heather: And that's really smart because often wrong answer choices are ones that include words like all, never, always, because like you said, they're usually too expansive. And that's part of why this answer choice is incorrect because it says the word all. And also that's not our rule. The doctor does not have to explain all the risks. The doctors under a special obligation to explain the risks, but the word doesn't say all before the rule. Listen, So also, if it was all, we'd be in the doctor's office for a lot longer than we usually are anyway. That's part of how we eliminate B. B is wrong. So you were right to eliminate that wrong answer choice, which is B. also eliminated D, which was no, because Dr. Jekyll was only required to inform Gabriela of the commonly known risks of the appendectomy.

0:43:40 Thomas: And realizing, so I think this is not in response to the fact that he started explaining the infection and then couldn't explain the additional risks. Now that I look at it again, I think it's more because of the due to the unforeseen complication. So if I were to elaborate, I think it might be under the theory that like, the oh, thing she died of was something that wouldn't no matter what explanation he did, I think we're to believe the thing he died of wouldn't have been in that explanation because this was an unforeseen one. It wasn't one that would have been warned on. And I actually think that might be worth considering a little more than I did, because could see a certain appeal to the argument of, regardless hey, of what happened with this informed consent thingy and the risks and her saying, blah, blah. I don't want to hear it. The thing she ended up dying of, if it was a bolt of lightning, if It was something that essentially wouldn't have been in the explanation anyway, I think you can make it a good argument that like, yeah, it doesn't matter. Matter like that wouldn't have affected I do think that when it comes to surgery and informed consent like I feel like it's going to be something that now you just got to do it like regardless but I don't know

0:44:44 Heather: And that's what I, to your point about unforeseen complication as as it relates, that's what I read as well. Read that even if the doctor explains whatever it was, that it would be unforeseen and may not have been discussed anyway. So I had read it similarly to you.

0:44:59 Thomas: And so I think I I should have in my answer that's more I think about what d was about um maybe it was worth considering a little more than I did um in the end I kind of just thought c was better than d for similar reasons a and b I guess it's sort of just the more direct to the point whoa

0:45:15 Heather: Well, think that's also part of why eliminating D was a good reason, but also Also, because, not surprisingly, like with a lot of questions, a of rules, I should say, when it comes to the bar exam, often, exceptions well, because see that doctors are not under an obligation to disclose when the risk is commonly known. So is D actually a of law because the doctor was not required to inform her of commonly known risks. At least for the bar exam.

0:45:38 Thomas: That's weird only required yeah does that rule mean? We were talking about medical stuff. What do you can even count as commonly known?

0:45:46 Heather: Right. The kind of person where I always err on the side of caution and I would be like, can you really trust anybody to think that something is commonly known? What does that look like? I would have a lot of questions and I I would just think, yeah,

0:45:55 Thomas: You Especially if it's at all specialized. Like this is, that's weird. Okay. So the rule is you're not required, a doctor is not required to inform that. What? I, that is crazy. Why? I feel like that's not how it works. Like, I feel all doctors do is tell you about every single possible thing.

0:46:12 Heather: Yeah, exactly, probably because of litigation.

0:46:15 Thomas: Or at least if not every single possible thing the stuff you know like every medication is like well there's the headache and the diarrhea they'll start with that like yeah there could be a headache or diarrhea because they all have that you know and it's like yeah if anything is commonly known it would be headache diarrhea as a result of a medication and yet they still do it every time so what's going on here oh so you don't know so what is what what kinds of things. If you know, do was that part of the rule meant to be talking about?

0:46:36 Heather: Yeah, that's a great question. No, that is a good would question. I imagine, listen, aren't required to, but a lot of doctors do just anyway.

0:46:50 Thomas: It's like, okay, okay, if we're going to like your shoulder, we don't have to warn you that like, it's going to hurt. Cause obviously it's gonna hurt or something. Is it like that? Maybe it's cause I'm trying to think of when this would have been written and whatever, you know that rule. I, is it that kind of thing? Like, Whoa, you didn't tell me that, getting you my blood was going to involve a needle or something is it? It must be that kind kind of thing where it's like, yeah, okay. We didn't have to warn you about that. Like that's obvious.

0:47:12 Heather: But I do think to your point I they just do it any I I that's

0:47:16 Thomas: Do it anyway. Yeah. But I do think over time, I wonder if like, as medicine got more and more complicated, this rule made less and less sense, or was this somehow conceived of recently? I don't know, but either way. All right. We'll move on from D.

0:47:29 Heather: And I'll say too well we're just gonna because there's a couple more things to add about it um of the other ones is that is um when disclosure would be too harmful to the patient so let's say your patient's really sick and you have to deliver some really bad news to them if you know that um would upset them to the extent that it would cause as an extreme illness, like a heart attack, then the doctor's not under that obligation at that point either.

0:47:33 Thomas: Sorry. That's very interesting.

0:47:50 Heather: Yeah, that's what I thought too. I don't see that come up quite as often as bar exam. There's another one. The patient waives or refuses the information. Then I think that brings up a good question about with in our situation, do we think that when Gabriela stopped Dr. Jekyll and said, please don't tell me anything else. Know I need the surgery, regardless of the risks, do we think that that constitutes this? Do we think she's waiving or refusing more information, right?

0:48:15 Thomas: Guess so.

0:48:17 Heather: So then that puts us exactly where it put you, between A and C. So which one do we thing is better, that because Gabrielle did not give informed consent, or do we thin that it's C, right, because she consented, because it falls under this exception here, right.

0:48:28 Thomas: Well, if you're telling me there's an exception of someone saying I don't to know, which you would think would not be informed consent. But if you're telling me that's an exception that works, then I guess my would change to C. All right.

0:48:41 Heather: And that's exactly it. The answer is C, because she falls under that. She's refusing the information and the access. Yeah. So C is our best answer. A is incorrect. Your second chance answer was correct.

0:48:52 Thomas: We need Philbin to do this. Sorry, you got to. So it seems like. This is for once. Dogs who are just ready to sue the team of lawyers. I have like, Montgomery uh, Burns has the like trap he pushes and the thing goes, and then like, there's like seven lawyers there. Uh, is one that I just made an assumption and it was wrong. There's no tricks, nothing crazy. We don't need to sue. Stand down everybody. This was a normal Thomas just getting an answer are wrong right

0:49:25 Heather: I will, can I also just say though, what I appreciate was kind of almost at the top, when you started talking about informed consent, you saw this right away. And then you kind of had this like known unknowns. And can I say that you're like the only person in my life who says that other than me and refers to Donald Rumsfeld, the known unknowns, I appreciate you for that moment. I just thank you.

0:49:43 Thomas: I did ask that hypothetical like does that mean would have to go into a surgery knowing every single bad risk and and part of me was like yeah it seems like you should have the right to not have to know like but but I just another overrode that for me was yeah but someone I feel like it would be on the doctor to make sure that like you could be in that state of mind for very wrong reasons. You could be In the state of Mind of well, I don't think I need to know because I need this and you could just be totally wrong and I feel like a doctor should have the obligation to relieve you of that misconception, but guess that's not how the law works. So maybe again once again back in the bone saw days of whatever this was they're like, oh, no, if they were just don't want to hear about how their bones are going to be sawed like yeah, no that's fine. Like they don't have to hear About it and that's probably what it is. So, hey, fair enough. Got this one wrong. I have my score has really tanked lately. I am down four in a row and score is now 26 out of 43. are you happy, Heather? Are you happy with yourself? You did this.

0:50:15 Heather: Well, Lisa. I'm not. No. I'm not. I mean, no

0:50:43 Thomas: It's you know, this one. Hey, we'll turn it around. I, lot of pressure on next question, but we'll get it done.

0:50:49 Heather: Pressure. No pressure.

0:50:51 Thomas: Right, well I think we'll have to take to the the interwebs and specifically blue sky to see who the big winners are this week and Heather, don't listen. Heather's a boomer and didn't understand how to look at the Blue Sky answer. So I'm going to do the winner there.

0:51:05 Thomas: I didn't say anything it's okay no it's it's okay it's a new format and we got it look it's new we want people to follow on blue sky go sign up everybody is leaving Twitter in droves it's really cool seriously F Twitter and X we don't need it anymore I not deactivating yet because we still want to like direct people over to blue sky but eventually the plan is we will deactivate we will get out of that Nazi hellhole you know another thing Heather that's that's fun about that is all the right-wing Nazis on Twitter like they realize that their entire life revolves around reactionary politics to us. And they're like, wait, what do we do now? Just like all sitting on Twitter, like, so where, where'd they go? You know, it's just cause that's all they exist to do is like try to belittle and target people. Hadn't really thought of that until I saw, oh, this guy like made a blue sky account to come over here. It's like, wait, you complained about people on the left being on Twitter. And then it's like you, but that's all you live for is trying to own the libs. And so it's really satisfying to leave that hellscape, leave uh, Twitter, everybody, or the very least also come to blue sky, search for opening arguments, search for seriouspod. And eventually Heather will be able to figure out how to find the T3B submissions.

0:52:12 Heather: I'll say quickly that you um encouraged me to sign up for blue sky and it's been great I've been able to reconnect with all of my um kind of again it's been a lot of fun it's nice to see it's been a really nice community over there so yay no

0:52:24 Thomas: Is not a paid advertisement or anything, everybody. This is just a, we want to have a nice like place. And it's so funny tweeting stuff, you know, know, bleep, bloating, scoot, scabdidian scuff, whatever they call it. We don't know what they call it. I think they call it skeeting, Anyway, but it's so weird doing that. And then being like, oh, you just see a bunch of other people replying or not, you is not like crypto, sign up. Hey, beautiful, gorgeous. Just my idea. Just all the AI, like bullshit, you know, scammer stuff that was on Twitter. You don't see any of that. You just see people responding oh hi hello I'm a human here's a response it's like this is weird but it's great yeah

0:52:25 Heather: It's not no the nice part of the internet I'm

0:53:00 Thomas: Yeah for I'm gonna shout out like all our winners because we had four which which is great. On BlueScon, a new format, that four of you brilliant folks did it. Now the right answer. So sorry. There's one odd person out, but that's okay. I also got the wrong answer. So don't, you know, don't feel left out. Person said, and -T -K -A -T Z is their thing. Whatever that is. C -C -Cats maybe or says, Thomas was this close to getting it. Answer is C because the way I see it, if the patient affirmatively declines to hear the risks when the doctor brings them up, that's on the patient, not the doctor. Hey, you know what? You nailed it. I almost there, like you said. I almost got there but didn't. But you did and you did it on Blue Sky. That's so great. Going to shout out all of them. That's it. Bonus, special for everybody because of the blue sky. This won't happen every week, but I'm just so happy that folks followed us to blue sky and are doing this. Tom T -A -N -G -M -U, and they're all dot blue sky dot social. I hope that's clear, but I'm not going to read that every time. I am going with D as Dr. Jekyll wasn't hiding the risks of what led to Gabrielle's death. Death. Unforeseen complications wouldn't be on the consent form. Riskless either way for A, C, and B is too extreme to be possible and doctors aren't strictly liable for death from unforeseen circumstances. So not quite right, Tom, but you know what was right? Participating on

0:54:20 Thomas: Blue Sky. So you're also a winner. Then Liz Warner. I think this was another good one here. Oh yeah, Yeah, Liz Warner would maybe be the winner if there was only one. Says, I hope that the answer to T3BE is C. I have had similar conversations with doctors before my son's appendectomy and my own hysterectomy. The informed consent is mostly about signing a document, I think. And if she had been unable to consent at all, doctors have presumed consent to provide care. And so that makes sense. That is something I mentioned where I was like, ah, it seems like you shouldn't have to hear someone explain how you're about to die. It seems like you should be able to do the la la la, I'm not listening, go ahead and do it. And I wish I had gone with that instinct. Liz did, and Liz was right. Finally, the the Real Kianjo. Sick of these fake kianjos, so you, thank Real Kionjo. Joe. I'm no lawyer, but I think the answer is C because the unforeseen complication language. Now, here's the thing. That wasn't actually the logic. So I love this. It's the right answer, but for the wrong reason. It didn't have to do with the un Foreseen Complication Language, and it didn'T have to DO with the fact that that WOULDN'T have been in the warning at all. Was an attractive distractor. And so nothing wrong, the real Keon Joe, with being attracted to that

0:55:32 Thomas: Kind of distractor? No judgment here. It'S Blue Sky. We're all cool. All right so I shouted out I'm not gonna do that every time but shout out all our blue sky participants and thank you so much seriously and once again uh we're gonna continue picking the winner from that but I think heather really wants to give a shout out to someone on reddit so why don't we do it

0:55:53 Heather: Thank you. I loved It's Sandwich Time's answer. Was going with C and got the correct answer that said, a patient that is competent to provide valid consent for a procedure can decline to hear about all the particular risks associated with the treatment. Forcing the patient to do otherwise violates the wishes patient's and undermines the physician -patient relationship. Relationship it be like having a law that forces a patient to have a medically unnecessary procedure like a fetal ultrasound in order to obtain the health care that they oh wait fuck so so I particularly like this answer I think for reasons that I hope are obvious yeah and that's again this is really the focus around um a little bit like a waiver of um informed consent in such a way like oh I that you're trying to tell me but I don't need that just give it to me anyway and here we we are. So So. Great job.

0:56:27 Thomas: Fantastic that's patron winner is Ray, who says, best of all worlds. Happy to have more Lydia and her deep research applied to these appointees. Thomas, you are so good at pointing out these tricky trick diabolical questions. Make Heather laugh some more. I vote for C. Are we required to read terms of service before we click? Yes. No, but I feel like a liar every time I do. I don't totally know how you got there, but you did. You got the right answer and I didn't. You you win, Ray. Thanks patrons. And thanks everyone who jumped on blue sky. Was This super fun and keep it up next week. Right, Heather, after this break, we will get to another question. I've got to end this streak. This is unacceptable. I'm down four in a row. Come on me. All RIGHT. After this, we'll see if I can finally get something right here all heather here we go new I'm question 48 what

0:57:28 Heather: Let's bounce back. Man owned a house worth $150,000 that had a mortgage on it with $120,000 still owed to the mortgagee. Man used the house for rental purposes to make some money. Tenant in the house had lived there for many years. Day, the tenant announced that she was getting married and leaving the house and and terminating the lease. Man, wished her well, enlisted the house for sale for $150,000. He did not receive any offers. Estate prices began to fall rapidly, and it was not long before

0:58:03 Thomas: Is this can we go there can we visit I was gonna say 150 000 in california buy you a mailbox to live in What are we talking about? Now they're like, oh, real estate price is falling. Cool.

0:58:18 Heather: Man could not make the mortgage payments on the house. Mortgagee foreclosed on the house receiving only $50,000 at the property conducted foreclosure sale. What does the man owe to the mortgagee? A. The man owes nothing to the mortgagy. The man owes $70,000 to the morgagie. The Man owes $120,000 the mortgage or D. The man owes a hundred and fifty thousand dollars to the Mortgagee.

0:58:42 Thomas: The ones where they give you all the mathy possibilities. And sometimes they give You one that's like, that doesn't, how did you even get to that number? But we don't have that. So these are all pretty, pretty logical. So Okay. Because the tenant was leaving the house, the man who owns the house but with the debt was like, well, F this, I'm selling it, which seems, I don't know, that seems like an overreaction. They should probably just find a tenant. But I guess in this housing market where a house is worth $150 ,000 or less, maybe, yeah, nobody wants to live there. Maybe they're the only two people in the town. However, he did not receive any answers, he couldn't keep up with mortgage payments. The mortgagee foreclosed on the house. I, would hope this is real property. I'll start there. I think, I think this has got to be real property talking about property. We're talking about, I mean, foreclosure, we're talking About all these, those things. Unless once again, it's like some contracty thing, but I think it's been pretty consistently like, no, it's just real property. Even, even though there's like contract -like things involved, it'S still just real real, property, so if the mortgagee forecloses on the house, and they receive only $50 ,000 at the foreclosure sale, they still go collect the mortgage? How does that work? Would have, wait, the mortgagee foreclosed on the house. So that's like, so, oh, okay. So this, I think what's confusing me is thinking of the mortgage as a person. Maybe I'll just say that's a bank. Owe the bank $120 ,000 and stop making payments to the bank is like, well, we're foreclosing the house, we get 50 ,000. Now, what do you owe at that point? Do do they knock off the, at the very least, I'm certain that they would knock off the $50 ,000. What I'm actually, yeah, here's what I want to do. It's got, because you own the house, it's not like they both take the house and the money that they got from the house. That would be pretty extreme. I mean, maybe if we're living in like up in Sinclair's the jungle or something, but like I think nowadays. So I think I can already eliminate some answers. A, the man owes nothing to the mortgagee. I think that's possible. I might keep A alive because maybe it's like foreclosing means, ah, we're We're done, you now, I just take the house back because that was, yeah, okay. So A would be the logic is this secured with the property. This was secured with the house. I can't pay anymore. No discussion of like bankruptcy or bankruptcy proceedings. So I guess there's none of that. Like the logic ist, well, we now take this back and then they sell it. Now, A is alive and then B, which is 70 ,000 would be, okay, you owed 120 ,000. We're forcing this kind of sale. We got 50 ,000 back. We knocked that off the price of the mortgage that you still owed. So you owe 70 ,000, um, are going to be two answers. I care about C is owes 120, 000. That would be insane. D is owes 150 ,000 dollars. That'd be, I, geez, I mean, we live in a harsh world, but I mean it's not maybe after Trump's second term, but, I think for now, I can narrow it down to A and B because I, I think it would be crazy if you still owed the same amount after they sold the house that was securing the thing. So it's either nothing or 70 ,000. So here's my thinking. It were 70 ,00, why Wouldn't the person just sell the house? So I don't know much about foreclosure. Unfortunately, I'm sure, you know, people older than me who were doing anything with housing through 2008, nine, 10, probably have more memory of like how this this would work. And God forbid, if you actually were foreclosed on, you probably know. I don't have that experience. But my only problem with the $70 ,000 is that's the same as just being like, well, I guess I'll sell the house and then I'll owe the difference on the mortgage. So that would mean that the of foreclosure is only that you're forcing the person to do that, which I guess could be true, but it seems weirder. I do not know. It seems like that because it seems like foreclosure might be the act of like, well, I'm taking the house back because you've defaulted on your mortgage. And so the act of taking the House back cancels all that out. You can't continue to owe mortgage on something that like they that you defaulted. They took it back. So I think I'm actually leaning toward a as much as that that sounds like a less harsh world. I feel like, I there was crazy stuff that happened in 2008 and nine and all that. And people would still be owing money and maybe they are, but like the, if stuff gets overvalued like crazy. Yeah. Got a housing bubble. Let'S say this house, whoa, it's, it'S worth a million dollars and I borrowed a million and then like that all bursts and now you You owe the bank based on the mortgage you took out, which was secured by the house itself. They take the house back, but now because there was a bubble, the house is worth, I don't know, a 10th of the cost. They house that secured the thing to begin with. It should be pretty crazy. Okay, yeah, I've talked myself into it. I'm between A and B and I'm going with A. I think the act of foreclosure does kind of eliminate that whole thing. The bank takes the houseback, I think, and they sell the house and that's just what they get. There's don't still owe the whole mortgage because otherwise that would follow people forever I feel like I mean maybe bankruptcy is the other way to deal with this but a I final answer all right if you'd like to play along go to blue sky sign up find us open args open arg stop b sky dot social but I think you can just search, like, opening arguments or whatever in the search bar. And also, you know, hey, follow SeriousPod while you're at it. Why not? It's great. You're there. You're already there. Might as well do it. And submit your answer. So, you repost, I think. Actually, I'm going to go right now to the process. You hit the button that looks like retweet, and you go quote post. That's what you do. Quote post. And you put your answer, therefore sharing the show, and your T3B I do. You you don't need to do a hashtag because I don't think they really do. No, I guess they do do hashtags. So you could also do the hashtag. I don't know. That's like extra credit. For those of you, for those of your A plus students, like my wife, Lydia, who would definitely do all of this, you can also do that. You can also use the hashtag, but I think the important thing is you need a quote tweet or, or bloot thing the and put your answer there. Will also, of course, pick an answer from patreon.com/law, because those are the patrons. Let's we'll see about reddit do you still do reddit to track the score but for for the time being we're going to really uh from blue sky to try to get people over there and thank you so much to those who have and we will see if I finally ended my streak or not you I'll find out what happens when they foreclose my house all right well until next week heather stay safe out

1:04:38 Thomas: Out there.

1:04:38 Heather: You too. See you then.

1:04:39 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

1:04:49 Thomas: Now there's only one thing left to do which is to thank the amazing patrons who make this show possible at patreon.com/law thank you so much I hope you're enjoying the good stuff the not ads and everything and we got some new ones to thank thank you so much to emily julie weed laura small rachel pavlik lamb chop of satan kale Kail, as in K-A-I-L. Democracy Cannot Survive Unregulated Capitalism. Yeah, Tao Wang and Melissa Thayer. Thank you so much for signing on. Join their ranks, folks. It's easy. patreon.com/law. as little as a dollar. Get rid of the ads forever. It's a good deal. Now it's time to thank those Hall of Famers, those all -time greats. These are the folks that pledge at that $5 tier and above for at least a month. And they get a weekly shout out and some of them change their names, make funny stuff, make references and it's something that I love doing. It's a long tradition. So thank you to James H., Abbott and Costello, who's on first cross -examination. Michelle Chandler, root cause mitigation and ineffective gun control is a false dichotomy. Ooh, finally someone responding to that longtime patron. Patron. Hanrahan, Childless Local 47 Chapter. Is she talking about me? Apprentice of Adventure, Jesse D. Myers, Unfrozen Caveman Lawyer. Justice served with cold hamburgers. Well, Dr. Proper, those hamburgers are even colder. Cavalry, Nick Fish, A String of Unpronounceable Profanity, A Negative Phenomenon. Quick update, Ovechkin is only 36 goals from the record. Oh, quicker update, more updatey update. It's something like 28, I want to say, but he got injured the other night. So, and it didn't look good. I haven't checked on that, but. He is on a tear this season and might've had a bad injury and we'll see. He's 39. So we'll See what that does. Oof. Stay tuned on that one. You got to fight for your right to ex parte. Jaysank, cheers to the onion, the greatest media outlet in the the history of humankind. Agreed. Test ease interpreter. Oh, great. Now I have to go back to changing my name every month. E.T., Thomas Freeman, Cajunkilla, Fraud Fishy Hates Everything, Chris Simpson. The extra episodes. Out the Queer in Cryptography conference at cryptography.lgbt. Liberals own guns too. Support root cause mitigation, not ineffective gun control. Not a lawyer, but I play one in court. I give up on funny names. I'm just Leo G for now. Now, Stormy Decisus says, visit sharebandbooks .com. This isn't a Patreon name and I'm not reading anything right now. I just personally think Legal Eagle is so handsome. Mark Schultz, hors d'oeuvres in the court before we report. The Cincinnati Kid, Bob Law podcast. Philly Basement Bar is closed in mourning. Veggie, Elect Thomas Smith President, American Honkytonk Bar Association. Baltakatei, Philip Kizer, a master Satanist is never to be taken lightly.

1:07:32 Thomas: Great, a lot of movies referenced there. The 501st and Rebel Legion want you. Cosplayers doing good. A string of unpronounceable characters. Milo Meadsong is on to the post -conviction process now that his cert petition was denied. Malaika Chandler, Malcolm the Dragon, the precious variant. Big Easy Blasphemy, Fred Grotheus, Rhondathedork dot com, Chris Waltrip, Mitchell and by Felicia still on top but only barely but our top patron of all time right now thank you so much hall of famers seriously you make the show happen I'll never get tired of thanking you and reading some of your fun names although right that's the show it's really cool to to be doing these Wednesday ones and we have a lot of staffing updates to get through. So there will be more staff infections to come. The staff infections will continue until morale gets worse. Oh boy. Anyway, make sure to answer T3BE both on BlueSky or if you're a patron, keep up on there and we'll still keep an eye on Reddit. And that of course keeps track of the score. So it'll always be there, but All right. We'll see you for rapid response Friday.

1:08:28 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.

1:08:45 Heather: With erectile dysfunction, the first thing I thought of was a commonly known, well, it's not a risk, but anyway, I should stop. I imagine, sorry, but