Listen to the episode and read the show notes!
Topics of Discussion
- Andrew’s Personal Story About Eugene Scalia
- Recording Habits
- Show Topic Disagreements
- Can the ICIG be Arrested?
- Executive Privilege as a Plausible Defense
- Socializing Utilities
- Election Day as a Federal Holiday
- Republicans with Spines
- Executive Destruction of Documents
- PG&E Liability for Power Outage Death
- Possibility of Trump Peacefully Relinquishing Power
- Horrible Upcoming Supreme Court Decisions
- Kavanaugh Impeachment Possibility
- Wedding Advice for Fall 2020
- T3BE – Answer
Thomas: Hey folks! I’m here to do a little housekeeping for you, let you know what the schedule is because we just are coming off of a really fun, amazing live show in L.A., it was just an absolute blast. And I have to tell you, I don’t wanna rub it in but platinum night with Andrew cooking for us was even better than I could have imagined. It was so fun, so make sure to try to make it next time. VIP was fun, it all was great.
Anyway, this is all to say that if you are a non-patron what you’re going to be hearing today is the Q&A section of that live show, it was just about an hour in itself and we wanted to get that out first because I think it was probably the most timely thing, people had questions about the news and stuff like that. I think it’ll be really good, I hope you enjoy it.
I wanna also say, if you’re a patron we’re gonna go ahead and give you access to the entire live show right now. So if you’re a patron at patreon.com/law, I hope that means you have the patreon feed in your podcatcher, make sure you do, so you should be hearing this appended to the entire live show.
Now that does mean – we were trying to find the best way to do this. That does mean in the future there’s going to be a few things that you’ve already heard because we’re going to use some of the live show content for later Tuesday episodes, but our plan is to try to mix in some bonus patron only content to make up for that so you’re still getting fresh new stuff each week. So that’s our plan.
There was so much, Carrie and Matthew were amazing I can’t wait ‘til you all get to hear that. It was a lot of fun, thanks to everyone who came and I hope you enjoy this. With that said, for normies let’s get on over to the Q&A and keep in mind there’s also still the patron thanks and the T3BE answer from last week, that’ll be at the end of the show. For patrons, enjoy the entire two-plus hour live show, hope you enjoy it!
Thomas: Alright, anyone have a question for Andrew? Here we go! Somebody here? No, you’re pointing? Oh! Duh, I forget every time! What’s your question, obligatory question 1 from Teresa Gomez!
Andrew’s Personal Story About Eugene Scalia
Audience Member Duke Goobler: This is – Andrew had asked on Twitter to share his Gene Scalia story.
Andrew: Oh, yeah!
Thomas: You’re cheating! So you used someone else’s question? [Sighs] Teresa. I want a real Teresa question. I’m just kidding, okay, what is the question. Gene?
Andrew: Yeah, Gene Scalia. So Eugene Scalia, son of the delightfully departed former Supreme Court justice Antonin Scalia, works for – I think he’s still there but when I encountered him he worked for a big firm, a Covington style firm called Gibson, Dunn & Crutcher in downtown Washington D.C. and Gibson Dunn represented the defendant in one of the few plaintiff’s cases that I did while I was at a big firm. I’ve told a little bit of this story before, this is one of the worst fact pieces that I’ve ever had in a case. This was a guy who was an accountant for a multi-national billion dollar accounting firm, and they transferred him to the Philippines, over his objections, and he was kidnapped off the street in the Philippines which apparently happens to-
Andrew: No, seriously, apparently that happens a lot. So that’s real bad, and then the firm decided that they were going to intervene in the hostage negotiations. The kidnappers sent a letter to my client’s family and said “hey, we want you to pay $100,000,” which was a lot, but he was like “yeah.” His wife was like “yeah, we’ll pay that tomorrow, we’ll borrow money,” and the firm was like [Cocky] “Nah, we got trained hostage negotiators here so we’re not gonna. No, don’t pay the money.”
Thomas: This is exactly from Die Hard, right? Hans-
Andrew: Yeah, it really is!
Thomas: Yeah, I got this!
Andrew: They sent in – what was the guy? The coat guy? Not Elliot but it was – anyway.
Thomas: No it might be that. Anyone know? We should bring one Die Hard specialist to every show. Brian, write that down for me.
Andrew: Anyway, so the firm went in and lowballed and was like “well, we’ll pay ya $20,000.” In response what the kidnappers did was – this was described in the Complaint as “cut off a portion of his ear.” I want you to think about what you would think about for that, and I watched the video they sent. Again, movie-like, they sent the box with half of his ear and this videotape to his family, and the video comes on.
Thomas: And they said “we’ll go to $30,000.”
Andrew: The video came on and he is bound and he has a gag shoved into his mouth and he’s screaming. It’s this muffled [Muffled Yells] and then the kidnapper comes over with black-handled kitchen shears, right? Goes in the middle, halfway in the middle of his ear – sorry I should have done a content notice.
Thomas: Yeah, I don’t really need this in my life.
Andrew: This is really bad. As they cut through, all of a sudden I had to throw off the headphones because the screaming went – yeah, it was deafening.
Thomas: Don’t. If I’m ever kidnapped can you just not lowball?
Andrew: Do your – pay the goddamn money! Don’t take … kidnapping advice from a podcast.
Andrew: Anyway, and so our entire case was basically like … that. We’re gonna play that to a jury and the jury is-
Thomas: Sorry, so somebody’s suing the idiots, that guy-
Andrew: Yeah, my client sued the accounting firm that interfered in the kidnapping negotiations.
Thomas: And yes, they should have. Yes. [Laughs]
Andrew: And of course they should have! The accounting firm hired Gibson, Dunn & Crutcher and they tied us up for four years with all sorts of bullshit-
Andrew: -procedural – their first thing was “well this should obviously come under Workers Compensation” which was like “we’ll pay for one medical visit.” They were gonna pay, like, $213 to stitch him up.
Thomas: But we’re docking vacation days for while he was kidnapped.
Andrew: Yeah. So ultimately I dealt with the Gibson Dunn lawyers who, again, are first rate Covington-style, top of their class, Ivy league universities. It was a pleasure to kick their [Clownhorn] at every stage. When we had the appeal before the D.C. Circuit on the Workers Comp, all of a sudden Gene Scalia added his name to the top of the pleadings, he was a partner at Gibson Dunn at the time, and took over the oral argument. His oral argument was essentially, like “well, you know Your Honor, I’m Gene Scalia. My dad’s on the Supreme Court.”
Thomas: “My dad said I should win this case, so can you please do that Judge? Your Honor.”
Andrew: It was 100%, I’m not kidding, it was 100%-
Thomas: Or he’ll beat you up.
Andrew: -sent in to try and convince the panel, “you don’t want my daddy to overrule you?” and we won 3-0 in the D.C. Circuit.
Andrew: So, Gene Scalia, talentless [Clownhorn] hack, nepotism and so of course he’s been nominated by Donald Trump to the federal bench.
Thomas: Booooo! Ah, wow. Let’s have a less murdery question, anybody?
Thomas: Who have we got? Let’s go. Here, right here.
Audience Member John Paul Jones: Do you guys just jump into recording when you start your show or do you guys do a pre-show between each other and what’s that like?
Thomas: Um, no. We pretty much just jump in. I mean, we usually chat, I usually complain about something and Andrew sits there and listens sympathetically because something broke or some audio piece of [Clownhorn] is not working and I’m mad, and then he’s like “okay, I’m really sorry about that, anyway let’s go” and then we go!
Andrew: We do! We do fill out the whiteboard, so what I’ll do is put on the whiteboard, this is the story for the A segment, the B segment, the C segment. As Thomas has alluded to in recent weeks the B segment will be like “It’s Yodel Mountain” and then I’ll have like 11 numbered items on the list, but yeah, no we jump in that way. Except for Friday’s show, the one that aired today-
Andrew: Which we recorded on Wednesday, where Thomas messaged me like 12 minutes beforehand-
Thomas: No I gave you – well, yeah. Sorry, you’re right. I thought I gave you warning and then I realized that I had the wrong date in my calendar and we were recording that day, I thought we were recording the next day. My fault, you’re right, sorry!
Andrew: And he’s like “how the [Clownhorn] can PG&E just SHUT OFF POWER FOR 5 MILLION PEOPLE I’m going to rant about this for a half an hour.”
Thomas: I’m sorry, I’m going to talk about this. Can you like law it or something? Give me some law for it. Yeah, sometimes that happens. I think I need to move around the world once and then also more in a time zone so I’m like 34 hours ahead of you.
The problem is the west coast, I mean we all know, we’re all here and some of you probably live around here. Big Dodgers fans and stuff. It’s hard because he’s up, already, I’m sure you’re up earlier than I am because you’re a lawyer and you still do law-talking guy stuff, and that’s three hours ahead of us so I wake up and the whole world of news has already happened. So I usually am just trying to play catchup and then we record. It’s just the coast, man! The west coast, it’s killin’ me.
Show Topic Disagreements
But yeah, next question. Let’s go oooover – yeah, one of our game players, players of the game!
Audience Member Jen: Sorry for failing that, by the way!
Andrew: It’s alright, I still love you.
Audience Member Jen: Whether it’s a Law’d Awful Movie or just a general deep dive topic, are there any movies or topics that you vehemently disagree on covering? And if so, why?
Thomas: Like him and I disagree with each other on covering?
Audience Member Jen: Yeah.
Thomas: Oh. Well Andrew kept wanting to do really [Clownhorn] amazing comedy movies for Law’d Awful Movies, and I was like “I can’t make jokes about a perfect movie! I’ll just be like yeah that’s funny, cool, they’re great, ha ha!” So that was several arguments early on and then I think Andrew maybe realized I was kind of right on that one, maybe a little bit?
Andrew: I don’t recall ever taking that side, but that’s fine!
Thomas: You wanted us to do My Cousin Vinny forever, it’s too good!
Andrew: No I’ve always been against doing My Cousin Vinny for precisely that reason.
Thomas: This is not true, I’m gonna subpoena for documents.
Andrew: We have this argument!
Thomas: I’m gonna subpoena you! Turn over the documents, what did you know and when did you know it about My Cousin Vinny? Yeah, no, what do you think about this question?
Andrew: There’s one that I feel like we could talk about.
Thomas: I’m probably not thinking of what you’re talking about, go ahead.
Andrew: Yeah, so there is – and really this is just – I think we both want to do this but there’s no tasteful way to do it. There is an unbelievably awful socially disgusting movie from 1986 called “Soul Man.” I don’t know if you’ve ever-
[Groans and Laughter]
Andrew: Yeah, and it is C. Thomas Howell at the height of C. Thomas Howell-dom in black face.
Thomas: We all know who that is, guys? Right?
Andrew: Yes you do, everybody knows who C. Thomas Howell.
Thomas: I don’t know who the [Clownhorn] that is! Who’s C. Thomas Howell?
Andrew: He was associated with the Brat Pack. But anyway-
Thomas: Yeah, sorry. 33, I don’t know.
Andrew: It’s C. Thomas Howell in black face playing a white guy in black face who gets into Harvard on affirmative action.
Andrew: Yeah, so it’s got the Harvard thing, it’s got horrible law, it’s got a terribly regressive social message because [Teeth Clenched] affirmative action doesn’t work that way, you assholes! And I really, really want to rip this movie a new one and I think you know why we’re probably-
Thomas: It’s just – yeah. Just, mleh.
Andrew: It would be super uncomfortable to do this.
Thomas: Yeah. Can I say one thing? Unfortunately we have one person here who knew me back when I was a conservative and an asshole. Now I’m still an asshole, I’m just not conservative.
But, yeah, I wish somebody in college and in high school, when I thought I was all against affirmative action because it was unfair to white people, I wish someone had just taken me and done the thing in movies where you slap the woman who’s trying to talk and she realizes “oh, it’s the 30s and I shouldn’t talk, you’re right” or whatever. If they had done that to me and been like, hey dummy! More. White people. Get. In. To. Harvard. Based on their parents. Than. All. Of. The. Affirmative. Action. Slots that are ever available you [Clownhorn] idiot!
I wish someone had done that and I’d be like, I didn’t know that because white people don’t know that because we’re ignorant about these things often times. That is absolutely true. The number of just legacy admissions far outnumbers the total number of black people at Harvard.
Thomas: The total number! Forget they’re all affirmative action, which they’re not, that’s a fact. And I didn’t know that because I was ignorant and just thought about it now because we talked about some stupid black face movie that we’re not gonna do, so…
Thomas: So if anyone has a time machine please go do the thing I just said with the slapping in circa 2003 or whatever. ’04.
Carrie Poppy: [Yelling] Sorry!
Can the ICIG be Arrested?
Thomas: Alright, next question. Straight ahead here, then we’ll get to the sides next. I’m gonna throw the mic at you! No.
Audience Member Alex Hamilton: Do these all need to be practical questions? That seems to be the theme. Okay, alright.
Andrew: The more impractical the better for the motto of the show, you know!
Audience Member Alex Hamilton: I’m just curious, with the whole whistleblower thing that I feel like happened like three years ago, but the whistleblower brought it up to an IG, right? Excuse me if I forget all the names of people.
Audience Member Alex Hamilton: Yeah. And then that went to someone else who had to hand over papers to congress and he waited more than seven days or whatever, the time limit was?
Audience Member Alex Hamilton: Why can’t a police officer just arrest him for breaking the law?
[Laughter & Applause]
Audience Member Alex Hamilton: If we can find no reason to arrest black people for whatever reason, why can’t this guy get arrested?
Thomas: I totally appreciate the spirt of that one!
Thomas: And you’re gonna answer it, but I also think it goes to the theme we’ve talked about, which is A, you’re gonna have some lawyer answer of “well it’s fine to get a sternly-worded crunchwrap and they’ll do whatever, it’s fine,” but part of it is that if a black person commits a crime we wanna throw him in jail, if a politician commits a crime we’re like “well but did he really mean to crime, though? Maybe if we let him crime for like a week and then he uncrimes, then it’s fine.” Right? Is that an accurate description of how the system works?
Andrew: That’s not an inaccurate description of how the system works.
In this case, however – and I think I said this on the episode of the show when the – so what happened under the International Whistleblower Protection Act is the whistleblower filed his Complaint, it goes to the Inspector General, the International Community Inspector General, who was the person who looked at it and said “holy shit,” and does the investigation. That person has a set period of time, I’m not looking at the statute so I don’t wanna get the numbers wrong, but that person has a set period of time which I believe is 14 days to make a determination as to whether that Complaint is serious and credible. He did so.
At that point the statute then uses the words “must” and “shall.” It says that the ICIG “shall” turn the complaint over to the Director of National Intelligence and then the Director of National Intelligence must forward that Complaint to the House of Congress to whom it is directed.
Thomas: Case closed!
Andrew: Yeah, it is as case closed as the law can be. Then it says “by the way, the DNI can append comments,” can say “okay, this came to my desk, I’m forwarding it to you because the law says I have to.”
Thomas: “LOL our President’s the worst, right?” Just those kinda comments, a few emojis in the complaint. “Ha, this guy! How did we elect him? Anyway, here’s your whistleblower complaint.”
Andrew: But that does not say that the acting DNI, and there is no Director of National Intelligence, ‘cuz of course there isn’t. There is – like 15 major cabinet positions are vacant right now and are filled with people that have never been confirmed by the Senate. So that’s delightful. The Director of National Intelligence was – I’m blanking on the name, he was an Indiana Senator.
Audience Member Sam: Dan Coats.
Thomas: I think it’s Senator Blevins, I’m pretty sure.
Andrew: Yeah, it was Dan Coats, and a longstanding establishment guy, pretty hawkish. Would be no fan of the show, but again, not a howler monkey, not a crazy person, somebody respected. Coats resigned like a month before, so the acting DNI was literally on the job for like a week and I don’t know. I said this on the episode, I’m getting to the answer of your question. I really don’t know – so what he did, he should not have, what he did was receive the Complaint and went to Bill [Clownhorn] Barr and said “um, what do I do?!”
Thomas: And his excuses were all – he said, like “well this is unprecedented.”
Andrew: His excuse is it’s my first day. It was that episode-
Thomas: “Also we’ve never had one of these about the President so I didn’t know” which I think you pointed out was kinda nonsense in the episode.
Andrew: And it is, but I do kind of understand when you’re the deputy guy and it’s your first day in the chair, all of a sudden it’s like “oh, by the way, the most momentous decision you will ever make in your life is about to come your way.”
Thomas: Hey, new guy! The country’s falling to pieces, deal with it real quick!
Thomas: First day on the job.
Andrew: Right. So I don’t know – all of that is a long winded way of saying I don’t know if acting DNI Maguire really intended to commit a crime and cover stuff up here.
If you want to pick “why isn’t this guy arrested?” Corey Lewandowski? That’d be a real good one to pick. That [Clownhorn] guy should be arrested. And I’m 100% serious. To show up and testify before Congress and basically kick your feet up and eat an apple in the testimony? That was below and beneath the call of duty.
Thomas: Do take arresting advice from this podcast, please somebody.
Andrew: Yeah, seriously.
Thomas: Let’s go over to this side of the room. Alright.
[Commercial – forhims.com/oa for a $5 hair kit]
Executive Privilege as a Plausible Defense
Audience Member Manfred McGullicuddy: So after it became known that Rudy Giuliani was under investigation his defense was “I couldn’t have broken these laws because I was acting on behalf of the President as his lawyer.” Is that a plausible defense?
Andrew: Ah, the Eli Bosnick defense!
Andrew: We could change the tagline to the show, Lydia is here I could get her to come up and say “don’t take legal advice from Rudy Giuliani.”
Andrew: That would be good, too. No, I mean obviously that’s insane. We’ve talked about this before that having – Trump seriously seems to have this idea that if you have a lawyer in the room that’s like a magic thing that makes everything go away and as somebody who’s 73-years old and has committed a lot of crimes he ought to know that that’s not the case.
But I wanna take – so the answer to that, I mean obviously that’s ridiculous, but I wanna point out something that’s in the D.C. Circuit opinion that was released today and it’s been in a couple of other recent decisions in connection with Donald Trump.
That is courts putting into their discussion “hey, we want to flag for you that the White House is asserting executive privilege and we’re not sure that executive privilege attaches when it is the President’s personal lawyer acting in a personal capacity rather than in the capacity of the office. We don’t have to resolve that question here because, by the way, your privilege claim is stupid.” That’s basically, by the way, what the D.C. Circuit said today and also-
Thomas: Well I think the question is slightly different, right? Because the question – it’s not necessarily privilege it’s also Rudy is now, we just got the alert like last night or whatever, he’s now being investigated and you’re saying, I think, that his excuse is gonna be “well the President told me to do that which is just [Clownhorn] nonsense, right?
Andrew: Yeah, and that’s-
Thomas: It’s almost like they require lawyers to … know the law…
Andrew: So maybe I alighted over this part, I should say it very clearly. The argument that Rudy Giuliani is immunized because he is acting on behalf of the President would require a couple of things. One of the predicates that it would require is a notion of absolute executive immunity, which is what I was sort of getting into there. That is the idea that when the President does it it’s not illegal, and courts are super clear that that’s not a thing.
Thomas: Didn’t we move on from that after the Frost/Nixon interview? [Laughs]
Thomas: That everybody was like “wait that’s stupid” and we’re all like, “yes.” And now Republicans are like “no, we missed that.”
Andrew: And by the way, part of the – so there’s no specific Supreme Court case that says that has as its holding that there is no claim of absolute executive privilege, but there are lots of cases that strongly suggest that and by the way, a bunch of these came about because of the impeachment of Bill Clinton.
So Clinton v. Jones stands for the proposition that a President does have to respond to a civil lawsuit filed against him even while he’s in office, and if you think about that, Clinton’s argument in that case was “hey, look, I’m the President, I’m real busy” (and unlike this President Bill Clinton was actually busy some of the time) “and it would be detrimental to the conduct of the Presidency of the United States if I’ve gotta prepare for a deposition, so what you should do is just”- even Clinton wasn’t saying “ha ha, I’m the President, you can’t sue me,” he was saying “you should stay this litigation until I’m no longer President and then I’ll sit for the deposition.”
The Supreme Court said “no, I’m sorry being President is hard, but you’re gonna sit for that deposition because having people be able to vindicate their rights is a thing that’s also important. By the way, a deposition is not the end of the world, suck it up.” I’m paraphrasing the Supreme Court a little bit.
Andrew: So now Republicans want to characterize that as a case about federal civil lawsuits against a President for conduct before the presidency, and-
Thomas: They’re trying to pigeonhole it as much as possible.
Andrew: Yeah, right.
Thomas: On a Wednesday with a woman who’s name starts with M, or-
Andrew: Yeah, exactly.
Thomas: That was what that ruling was and we’re not gonna use it for anything.
Andrew: We’ve got lawyers in the audience. When the Supreme Court has undercut the argument for your executive privilege, which is “hey I’m the President and I’m real super busy,” that gives you a strong indication that they’re not likely to come out in favor of an absolute theory, and I think even this howler monkey Supreme Court is unlikely to endorse that because the ruling they craft will apply when Elizabeth Warren is president-
Andrew: -and they don’t want that to happen.
Thomas: [Laughs] Remind me, who’s the Dancing with the Stars Department of Energy guy again?
Andrew: Rick Perry.
Thomas: Yeah, Rick Perry, if Giuliani is just doing what Trump says and Trump’s just doing what Rick Perry says I think we know who’s pulling the strings! It’s Rick Perry!
Andrew: There you go!
Thomas: He’s in charge of all of them! Alright, let’s see if we can-
Andrew: You’ve got some on the stage left wing, here.
Thomas: -reach over there. I was already doing that. Stage right, I think you mean?
Andrew: Well, sorry, you can tell the theater major in here.
Thomas: You’re gonna have to come down here a bit, sorry. Well hold on, hold on. How much we got over there? Report back. You got some room! Oh, here you go.
Audience Member Bryce Blankenagel: So PG&E question, may invoke some screaming. I just spent the last three days in Palo Alto, in some of the poor neighborhoods but not the poorest so I was three blocks away from all the shutdowns, it was great. Question, as a flaming liberal socialist I am somebody who thinks that utilities and shit that I rely on every day should probably be controlled by the government and beholden to voters instead of shareholders.
Audience Member Bryce Blankenagel: How does that happen legally? Is that a Constitutional amendment? Is that a five-decades long plan of baby step bills being passed and a constant dragging the Overton window kicking and screaming to the left? How does that work?
Thomas: Great question. You know, after I raged about PG&E I did get a message where someone said “hey, Thomas, wouldn’t you be under SMUD and not PG&E?” and I was like, “oh yeah, I guess so.” But it’s not me! It was my parents and Lydia’s parents. But anyway, yeah, question, how do we do this? Pitchforks and glowsticks?
Andrew: [Laughs] Yeah, great question. That is Bryce Blankenagel, everybody, host of the Naked Mormonism podcast which-
Andrew: -if you’re not listening to Naked Mormonism you should be. No, great question and look, there’s really a simple answer here and that is that Congress has the power to regulate interstate commerce and until fairly recently that power has been defined really, really broadly.
It is 100% clear for reasons, we talk about this a little bit on today’s show, PG&E purchases power from other States, so even though PG&E may only serve – and I don’t know whether they also serve States outside of California, probably do, but even if they didn’t-
Thomas: I think so.
Andrew: Yeah, I think they get Wisconsin and Oregon. Wisconsin – Washington and Oregon.
Andrew: Sorry, it’s been a long show.
Thomas: Yeah, and then the power lines jump a few states and go over to – yeah, it’s fine. So you’re already talking federally though.
Andrew: Yeah, yeah.
Thomas: Can California just be like “[Clownhorn] this?” I feel like California’s been getting [Clownhorn] done lately, right Californians? Some of you?
Thomas: Can they do this or no? It has to be-
Andrew: Yeah, no. For all the reasons that it’s interstate commerce it would be very, very difficult for California to nationalize, or to State socialize it’s power company.
Thomas: So you’re talking about how PG&E interacts with other States but couldn’t California just be like “hey, [Clownhorn] all that, California we’re passing a bill that’s we want our State to control the utility for our State,” it has nothing to do with whether or not the company that currently does it – you know, is that not a possible argument?
Andrew: Yeah, I think you could craft some sort of requirement that would phase in? I mean, you would have to deal with the existing contracts between the State and PG&E, so they would have to expire or you would be liable in damages for the breach of contract.
Thomas: Oh boo hoo, we have zillions of – also, we’re already paying so much for PG&E.
Andrew: Well, yeah, and PG&E is in bankruptcy so you might be able to discharge those contracts in bankruptcy. That would be super complicated and the federal government could – and this is where I was gonna get to, because it affects interstate commerce the federal government could preempt that California State law, so they could pass the-
Thomas: So the federal [Clownhorn] government?!
Thomas: They can make sure that a State has to get its utilities from a corporation and not under their own control?
Thomas: Wow. What happened to State’s rights everybody?
Andrew: Yeah, well, you know.
Thomas: Oh, that’s rough. Well that’s depressing Bryce, but thanks for the question.
Election Day as a Federal Holiday
Let’s stay over here while I’ve got the slack here and then we can go back across the room if we have that many questions. Here’s how far I can get. Ready? Before the stage manager guy yells at me. No, here we go.
Audience Member Tom Paine: Sorry, this might be a really stupid question but I’ve had it for a long time and you’re probably the best one who can answer it so here goes.
I’ve wondered for a long time why a Democratic President, Obama, wouldn’t just make federal election day a holiday permanently and then wouldn’t that just – because of the number of Democrats that are limited by the ability to vote on election day, that would swing so many elections in so many States in favor of Democrats and if it’s not a unilateral power that the President has, when Obama came in he had all of Congress also so why isn’t that priority one, and then win every election? Could be a stupid question, but…
Thomas: I think that’s a great question.
Andrew: Yeah, that is absolutely not a stupid question. So here’s the answer to that. What the federal government can do is declare a federal holiday, that has to be passed by law, so that is in the hands of Congress, it is not something that the President can do unilaterally. The last time we did this was in 1983 I believe with the creation of Martin Luther King day federal holiday, which I remember as history. I was very, very young in 1983, but in history that involved racists, in particular Jesse Helms who’s the kind of person who would be Secretary of State if he were alive today.
Andrew: Just a monster of a human being, taking to the floor to filibuster Martin Luther King day as a national holiday because he was a giant [Clownhorn] racist, and that filibuster was broken by Bob Dole, Republican from Tennessee. So, you know, we used to have Republicans with a conscience.
Anyway, so it would be a Congressional issue. Now, why didn’t Obama do it in the first year and a half in which he had a filibuster-proof majority in the Senate and Democratic control of the House of Representatives? That’s something I’ve said on the show a bunch of times which is I think that the fundamental McCain critique of Barrack Obama, which is this is a guy who’s been a Senator for like a week and a half and was in the Illinois State legislature before that and has no executive experience, I think that’s a good critique! It certainly was not enough for me to vote for McCain over Obama, but it was true!
He had no executive experience and I think he was totally in over his head in that first year and a half and failed to press the advantage in the way that somebody with more experience would not be.
Thomas: I agree with that, but I think we also – I mean, obviously I’m pretty sure everybody here can remember 2008 and ‘09 and I don’t know that it was on – I’m sure somebody had that belief out there, but I don’t know that it was on people’s radars because it felt like “okay finally! [Clownhorn] these Republicans, it’s over, we win guys! We did it!” and I just wonder if it wasn’t a priority for that reason and trying to get healthcare to 25 million people-ish that didn’t have it, that kind of thing. Would’ve been very fast to just do, right?
Andrew: Yeah, well and what I want to say by comparison is think about the way in which Donald Trump and Mitch McConnell have conspired in the first two years of the Trump presidency to ram through – again, Donald Trump right now is on a pace to appoint more judges than Barrack Obama and Bill Clinton and George W. Bush combined in 16 years, so that’s terrifying.
Thomas: I tell you this, I wonder if then, and we all know that’s 1000% Mitch McConnell and zero to -50% Donald Trump because he doesn’t know any of this stuff, but then I wonder if the blame should shift? In a situation where you have a new President who doesn’t have that much-
Andrew: To Harry Reid?
Thomas: Exactly, to the majority leader at the time.
Andrew: Yeah, I’m totally willing to say that. I think the reason is that Barrack Obama was more willing – let’s imagine that Harry Reid is mirror-universe Mitch McConnell-
Thomas: Oh my god the world would be so much better if that had been true in 2009, can you imagine?
Andrew: I mean, imagine what the Republicans would have done if we had had 60 Republican Senators in 2017. So I still think that the failure to do that anticipatorily really is, the one thing is the lack of executive experience and the other is – we’ve talked about this on the show – it’s documented as a fact.
This is the constitutional hardball law review article I mention every couple of episodes. It is a proven fact that Democrats are more willing to abide by norms than Republicans and that’s what we did. There was this idea of “well, even though Barrack Obama won 373, 372 electoral votes,” he won Indiana in 2008! There was a landslide mandate to bring in progressive change to this country and I think Democrats were sort of afraid of pressing that advantage. [Sighs]
Thomas: But Republican what’s-his-[Clownhorn] said nobody, no President has ever had as much bad will against him as Trump.
Thomas: I tell you what, we’re at 9:00 but we did get started a little late and I for one could certainly go for some more Q&A. Do you wanna go? We started you late do you wanna go 15 more minutes of questions? What do you think?
Thomas: Alright, let’s do it. I don’t wanna deprive the fine audience of their questions.
Andrew: Thank you for not, as one, going “no, we wanna get the hell outta here!”
Republicans with Spines
Thomas: No! We all regret buying tickets, we wanna go! Okay, Platinum question, sorry gotta go –
Audience Member Robert: So with the whole thing with Trump going on and you’re watching all the Senators to see which ones are gonna start jumping the fence, who’s the one you’re watching? Because we know Susan Collins, she’s gonna go over, Marshall’s gone over, who is the one that you think right now will go in?
Thomas: Senator Blevins!
Thomas: And he issued an amazing statement! Very well written! [Laughs]
Andrew: The person that I have had my eye on for a year and a half now is Richard Burr of North Carolina, he’s the chair of the Senate Intelligence Committee and the Senate Intelligence Committee, despite being Republican-controlled, was the one that produced the report that in a bipartisan way said “oh yeah, Russia clearly intervened in our 2016 elections and they did so to favor Donald Trump and in opposition to Hillary Clinton,” unlike the howler monkey caucus in the House of Representatives that produced a report that was, like, written in crayon that said “no Russia is kewl.”
Look, if Richard Burr were here in the audience he would have left five minutes into this show. He is no friend of the show, he does not have quirky positions, he is a doctrinaire right-wing conservative that all of you guys would hate if you sat down with him to chat with, but I think he’d – [Teeth Clenched] he’s the Chair of the Senate Intelligence Committee and I think he does not want a hostile foreign power to control our elections!
He may, again he has not been a profile in courage so far, but I think at the moment at which Burr says “this is serious,” I think that’s what I’m looking for the floodgates to open.
Thomas: So remember that quote that was the guy in the letter to his mom who was like “hey hon, please don’t go against Nixon, I want you to be a Senator still,” that guy? It’s interesting because his response, so he was a representative I think and he had just been elected representative for Virginia I think it was, and he was like “look, we all campaigned on no corruption.”
It’s funny to see a Republican, because again, it’s a Republican talking about a Republican President, and he’s like “we kinda campaigned against corruption, this is a lot of [Clownhorn] corruption!” [Laughs] Maybe this is bad! And he stood up for it. But I think what’s interesting, I know a lot of us have consumed a lot of Watergate stuff in the wake of Trump and all that, and I think I’ve said from that and we’ve said on the show that if Nixon had Fox News he easily would have finished his term.
But you know what? When I was doing a little research for my bar exam here I was reading an article that was like, he wouldn’t have even needed Fox News, it was actually really close and if not for the fact that Nixon had some sort of respect for norms in that some Republican leaders, they went up to him and were like “dude, you don’t have the votes anymore.” The article I was reading was speculating, if he had just said “okay, well I don’t care I’m gonna stay in power,” I don’t think he would have gotten impeached.
And it’s amazing to look at, even back then, even though it seems like things were a little better in terms of Republicans actually standing up for these things, it still was very difficult, and he almost stayed in power even back then. So it’s just an uphill battle to get a politician to actually critique their own side, is I guess the point I’m making.
Andrew: Yeah, I agree with that, and again this is something Thomas and I have both said on the show, but I think it’s worth saying again here at the live show. The impeachment of Donald Trump is not about removing Donald Trump from office. I am still not confident that that is a likely outcome.
Thomas: It is – you mean it’s not – the thought process wasn’t “hmm, how do we remove him? Oh! I know, we’ll impeach him for something.” You’re saying it’s the other – okay. ‘Cuz I still wanna remove him from office! [Laughs] I’m pretty sure impeachment literally is about removing him from office, that’s all. That’s the only reason I say that, but yeah, even if Pence will be weirder and call his wife Mother and all that stuff, it’s still – we need to [Clownhorn] do it. You don’t get a “Get Out of Jail Free” card for finding the one guy who’s a bigger weirdo than you! That shouldn’t be how the Constitution works!
Executive Destruction of Documents
Thomas: Okay, another question.
Audience Member Jon Adams: So if Trump famously ignores the Presidential Records Act and tears up all his documents and Jared Kushner uses WhatsApp to conspire with Saudi royalty and all our European diplomats are using WhatsApp, so obviously we only care about keeping records when it happens to do with Hillary’s emails, and DOJ’s not gonna enforce this, so who has standing to try and sue the government to force them to start following the law on this?
Andrew: That is a fantastic question, and I think that the recent McKeever v. Barr case which we’ve talked about a little bit on the show may cast some light on the standing issue. So let me, for the benefit of the rest of the audience, remember that the courts don’t decide advisory questions, so the fact that records are not being kept, it’s not enough for any one of us to go forward and say “The President’s a lying monster who’s breaking the law!”
Thomas: But I would’ve looked at those records! I have standing, I would’ve had fun with them!
Andrew: And that’s right, that gets to where I think the answer is. So you have to have standing, you have to be injured by the fact that they’re not keeping records, and I think there are two plausible paths to having standing.
One is being part of a government interest group, like a common cause kind of group, and those cases, common cause is part of the emoluments lawsuits. Those cases have not been decided on standing, they’ve been decided on nonjusticiability of the injury, but they haven’t said “you’re not hurt by the fact that the President is using the powers of his office to unjustly enrich himself.” They’ve said, “yeah, we get it, that’s a cognizable injury to an interest group,” so that would be the one.
And then the second would be any government employee who is in charge of records. It doesn’t have to be the official White House archivist, I don’t know who that is, but it could be a career civil servant.
Thomas: The Complaint is like “it’s really [Clownhorn] my filing! I’m missing these records.”
Andrew: It kind of is!
Thomas: I’m a completionist, I want all the records, I don’t have them. Can I sue?
Andrew: That’s a great question and this is a real – that is one of the things that’s infamously on the whiteboard, this is-
Thomas: Eminent domain, baby! [Laughs] We’re also gonna get to, some day.
Andrew: That is on since 2016, but no, the destruction of records is literally unprecedented and it’s really, really important that we not have that. Again, something Nixon wouldn’t do.
Andrew: Opening Arguments good friend, Richard Nixon.
PG&E Liability for Power Outage Death
Audience Member Bryn: So back to PG&E, a man has died because of the power outages. Is it at all possible to hold the executives of the company responsible for his death?
Thomas: Well I can answer that one, ‘cuz it’ll be they’ll get out of it because [Sarcastically] the statute says if they think there’s an emergency and they’re really sorry about it then they can turn off your power and kill people and there’s nothing we can do about it. Did I get it?
Andrew: Well, no, you’re also – there’s part of that!
Andrew: But also the statute and the interpreting regulations allow PG&E to set up its own rules to decide when, in the interest of safety, they need to shut down the power to prevent potential wildfires.
Thomas: Sorry, sir, we’re killing you for your own safety.
Andrew: But that decision – so PG&E gets to make the rules, they get to interpret when they get to shut down, and then that decision is reviewed for reasonableness by the Public Utility Commission of California, so the answer to your question is if the Public Utility Commission decides that this decision was – and I forget the exact language of the statute, but if it was a valid decision then that will absolutely immunize them from suit because they will then have “we acted under color of law” as a defense to any kind of lawsuit. Let me add, it would be, even in California-
Thomas: Well that’s reasonable it seems like. Because obviously there are real emergencies and times they have to turn off the power, and it would be wrong for them to be criminally liable if they turned off the power because something was wrong it was gonna cause a real safety issue and unfortunately somebody died or was injured. It makes sense but I guess then all the weight of that is on this one board that none of us had ever [Clownhorn] heard of until the other day when Andrew mentioned it, and now we’re like “who is on that board, I hope it’s not people that have received bags of money from PG&E?” I’d have no idea! Who’s on the board, do you know? Am I on it?
Andrew: I do not know.
Thomas: Are any of you on it?
Thomas: I dunno! Who is that?! I guess getting involved in government at every level’s important it sounds like, maybe. Perhaps.
Andrew: That is a really important take away.
Thomas: Okay, here we go.
Andrew: You have someone dressed for yodeling who definitely has to-
Possibility of Trump Peacefully Relinquishing Power
Audience Member Sam Adams: When Elizabeth Warren wins the electoral college, how worried are you that Trump will say she’s illegitimate and he will incite violence and refuse to turn over power?
Andrew: How worried am I that he will say that? I think there’s a 100% chance he will say that.
Andrew: I am not worried that that will have anything beyond the real issue, and this is something Thomas said I think a couple of months ago and I say it at every opportunity – I think I said it in conversation at the platinum night last night, which is regardless of what happens in the 2020 election, let’s assume the best case scenario which is not only does Elizabeth Warren win but she wins overwhelming, she wins an Obama 2008-style landslide.
Thomas: Yeah? Huh, huh?! Let’s do it! Alright, let’s make it happen!
Andrew: Which is the most anybody is gonna get.
Thomas: And the [Clownhorn] Senate, by the way! Let’s do that too, that’s important. All of them.
Andrew: Yup. If all of that happens, there will still be 60 million people who will have cast votes for Donald Trump. There will be 60 million people in this country who looked at the last 4 years and said “[Tongue Click] sounds good, give me more of that.”
We have to deal with those people after Elizabeth Warren wins, they are a part of the process and that, I think, is the sort of overarching challenge of the next presidential administration, so the threats of violence – his contingent, whether or not he makes those threats, his contingent will have gone out and will have said “yeah, we want more of this,” and I don’t have a solution for the toxic destruction of politics. I don’t have a solution to, there is a sitting member of Congress who choke-slammed a journalist who asked him a question and then won three days later.
That’s, yeah, I’m out of words for that.
Thomas: I think it’s also interesting that we look at this as “what’s gonna happen if they lose?” and we kind of feel like “they won so it’s fine,” but actually if you look at right-wing violence it’s at all-time high. It’s just on an upward trajectory since Trump won, and it’s nothing more than an observation, it is interesting, the idea that if we satisfy, if we appease them then they’ll go- No, they’re being more violent than ever in my lifetime, so we just have to [Clownhorn] deal with it, I guess! I dunno, whatever.
But just to make it absolutely clear, we get a lot of questions like “what if Trump just refused to leave?” and people still ask it, people are still worried, but you’re just not at all? You’re not worried about that. That’s not a thing.
Andrew: I’m not. Look, if that happens, if parts of the Secret Service defect and Trump holes up in the White House and Kevin McCarthy is like “well everything’s fine” then I have to stop doing the show! Literally, at that point, why should I be a lawyer? There will be no laws.
Thomas: You hear that Matthew?
Andrew: It will be Thunderdome, and we’ll do a new show called Opening Thunderdome!
Thomas: We’ll have to come up with the bylaws, we’ll figure it out. There’ll be small, roaming clans that will have a militia, let’s come up with the rules.
[Commercial – vistaprint.com promo code “OA” for free shipping]
Horrible Upcoming Supreme Court Decisions
Thomas: Okay, another question – a yodel from you?
Audience Member Kyle: I can’t believe I’m the only one that got the Yodel Mountain cosplay memo!
Andrew: [Laughs] I have a pair of Opening Arguments briefs for you!
Audience Member Kyle: So Trump has had a lot of defeats in the lower courts, but looking at the Supreme Court docket what are you looking at that is the most concerning for you? Or what should we be looking at as things that should be concerning for us with the new cases that they’re hearing?
Andrew: Clarification question, do you mean what am I worried about from the Supreme Court perspective in connection with impeachment or just what am I worried that the Supreme Court is going to do that’s gonna be horrible?
Audience Member Kyle: The latter.
Thomas: ‘Cuz that’s not really related to Trump, mostly. It’s mostly taking away women’s right to choose and making it okay to fire people for being gay, right? Which has nothing to do with Trump other than that he put the people in power.
Andrew: Let me give you two answers to that, that are exactly what Thomas just said. The first is the Supreme Court has granted Cert in a case called June Medical Services v. Gee, this is a case the Supreme Court has already decided in a previous version called Whole Women’s Health v. Hellerstedt that involves – Texas passed a law that required certification for abortion facilities to – you know, they have to have a level 7 NICU and they have to have a doctor with 30 years of experience from an Ivy League college on staff, all of these things that have nothing to do with providing medical services to shut down abortion clinics.
That has been the game plan of the right since 1992, since Planned Parenthood v. Casey, is to define things that clearly unduly burden a woman’s right to choose as not unduly burdening a woman’s right to choose. The June case, the facts in that are so bad that the only reason I can think of for the Supreme Court to grant Cert in that case is to either reverse Roe outright or to craft what we’ve talked about on the show as what I think is sort of even a worse scenario from that, which is we’re gonna get a 5-4 Roberts opinion with Justice Roberts and the 4 liberals that preserves Roe v. Wade but undercuts it even further.
I think Roberts is gonna go to the liberal wing and be like “hey, I can join with the howler monkeys and we can overrule Roe v. Wade or we can craft something to try and keep a little sliver of it.” So that’s all in one category.
Thomas: Yeah, and the minute you said that – I think you’ve been saying that for a couple years now, and the minute you said it my “worst timeline calculator” went off and was like, mm, yup, ding, ding! That’s what will happen. Roe will still be in name only and so a bunch of annoying people will be like “ugh, liberals, there’s still Roe v. Wade,” and then effectively it will be unavailable – women just won’t be able to get an abortion, as they already can’t in a lot of States effectively.
That’s absolutely gonna happen, we’ll get all the horrible media coverage saying “oh, look, Supreme Court’s actually great, they upheld Roe” and only Opening Arguments listeners and a couple other smart people will know what’s really going on.
Andrew: Yeah. The other thing I’ve been flagging, and I really want to be wrong about this is that I believe there are 5 votes on the Supreme Court to overrule Obergefell. That terrifies me, but I think when you read the Roberts dissent in Obergefell, it’s not measured, it is not thoughtful, it is ranting howler monkey-
Thomas: Sounds like something from the Tony Alamo Ministries, is really what it sounds like.
Andrew: It is “I find gay people icky” and I think the folks on the left – and I’ve talked to a lot of people on the left who are super confident in the Roberts institutional theses. You guys listen to the show, you know I endorse the Roberts institutional thesis or “embarrass John Roberts” as the key to preventing the worst possible outcomes.
A lot of people on the left are really, really confident that John Roberts is not going to overrule and undo millions of marriages in this country, and I do not share that confidence. Obergefell is 2015, this is not longstanding precedent.
Kavanaugh Impeachment Possibility
Thomas: Listener Thomas S.-
Thomas: Do you think we should focus on impeaching Kavanaugh? Because it really seems like, especially with the latest, the book that came out – it’s on my list, I can’t wait to get to it, but I’ve already read a lot about it. What is it? “She Said” I think it’s called? The book that came out that details all these new allegations, it details all the ways we already [Clownhorn] knew that he lied to congress, all the stuff we know. It is impeachable. Is that the way we try to deal with this? Or unrealistic?
Andrew: So I don’t know that it’s unrealistic, but whenever you chart a new course you have to have a story that is crystal clear to 2/3 of the American public and I don’t know what that story is right now.
Thomas: There is literally not a possible thing or fact that is crystal clear to 2/3 of Americans anymore, of any kind. The sky is blue, global warming, science, anything.
Andrew: I hear you, and I would like to talk about – but in terms of whether there will be political capital to do that I think is contingent upon being able to say the story in a sentence in a way that resonates with average-
Thomas: [Chanting] The guy [Clownhorn] lied! The guy [Clownhorn] lied! Impeach the mother[Clownhorn]
Andrew: I’m with you-
Wedding Advice for Fall 2020
Thomas: [Laughs] No, I hear you it’s tough. Alright, I think we’re about out of time. Do we wanna do one more? Is anyone else gonna die if they don’t get to ask this – oh, Carrie, okay! Let me walk all the way over here. How much do you wanna come sit down and ask your question? You’ve earned a question, here you go!
Carrie Poppy: If a person, any person, was planning a wedding and trying to set the date, how much should they avoid Fall 2020?
Carrie Poppy: Will all the guests be terribly depressed? Yes?! What are the odds of that?
Andrew: So first, congratulations on your recent engagement!
Andrew: I will point out to you that when we recorded with Carrie and Matthew, we weren’t recording we were just having a conversation, which we should’ve recorded because it was awesome. We were sharing things back and forth in Skype, including the publicity shot of Melissa Scott who it must be said was not only a porn actress but was a porn actress in 1986 so-
Thomas: You already know the picture.
Andrew: You immediately know – the hair! She looks like she’s comin’ out of a White Snake video, it’s amazing.
Andrew: And Carrie shared with us the announcement.
Thomas: So here’s what happened. I had logged out of Skype when you sent that, so Carrie was very confused when I didn’t know the news already. She’s like “I thought you knew,” and I was like “why would I know?” Then the next time I went to do an interview I turned on Skype and the messages came through. I’m like “Oh! I missed all that?” I’m an idiot, sorry! But anyway, congratulations, and when should they have their wedding? Set the date, you’re in charge.
Andrew: Don’t take marriage – no.
Thomas: October, 2020?
Andrew: I will say what I’ve been saying that was true in the 2018 midterms, which is what we need to do is vote in numbers that are too large for them to suppress, for them to dispute, and to overcome the institutional effects of gerrymandering. We can do this. We did this.
Thomas: Also attend Carrie’s wedding in numbers that are too high to turn down! I hereby invite you all to Carrie’s wedding!
[Laughter & Applause]
Thomas: I’m pretty sure she’s cool with that, let’s do it. It’s gonna happen.
Andrew: So look, I think nobody on the left will ever be confident about anything again ever after 2016, because if you had asked me the day before, on election night-
Thomas: Oh I asked you while it was happening and you were still very confident that it wasn’t happening.
Andrew: I was.
Thomas: I have the texts! I was losing my [Clownhorn] mind! I was like, “Andrew, I don’t think you’re right! I don’t think you’re right! What’s happening?”
Andrew: It’s true! I went next door, I lived next door to my sister, we made a big map and her son was gonna color in States-
Thomas: Look, we could go out on a high note, we don’t wanna do this! We all know what happened. Wedding! Happy!
Andrew: Look this is – and I’m gonna be happy for this. So, yeah, I get it, nobody’s ever gonna be confident again in predictions, in 538, in anything like that. And you shouldn’t be! But I think we will know very early on in 2020 that we are headed for another wave election, that was true in 2018 it remained true throughout 2018, we delivered on those results and I think we’re gonna have it again in 2020. I wanna be at your wedding and I wanna be toasting and celebrating, so you’re fine!
Andrew: There you go!
[Applause & Cheers]
Thomas: Having said that … get it done in October! [Laughs] Alright, thank you guys so much for coming, we enjoyed this so much, seriously it’s so fun.
[Patron Shout Outs]
T3BE – Answer
Thomas: Alright, well, now it’s time for the thrilling conclusion of T3B wrong E.
Andrew: Yeah, this is T3BE 2 Electric Boogaloo! [Laughs]
Thomas: Thomas takes the bar wrong exam, yeah!
Andrew: The facts so great they gave them to you twice.
Andrew: So everybody knows this by now, right? A bright, 12 year old sneaks out of daycare, goes out onto the thin ice, falls through the thin ice, has to be rescued, would’ve died. There’s a sign that says “thin ice keep off,” the daycare was staffed with a reasonable number of qualified employees and the employees were exercising reasonable care to ensure that the children in charge did not leave the premises, so this is, you know, a crafty bright 12 year old who sneaks out. There had not been a previous instance of a child sneaking onto the corporation’s property.
The question, this one, 148, in a suit brought on the child’s behalf against the daycare center based on the facts above, who is likely to prevail? Thomas you instantly eliminated B, the child [Laughing] because the daycare center is located near a pond. I wanna continue to flag for you that one of these days the stupid sounding answer is going to be right, that is an important bar exam tip, but not this day! [Laughs]
Andrew: That stupid sounding answer is definitely wrong!
Thomas: Yeah. No, I’m glad, because that day will be when I quit my law career, which I know nobody wants me to do.
Andrew: [Laughs] That’s true.
Thomas: But I think even the stupid answer could be right, but it’ll be different than this. This was just stupid. I mean, anyway, we’ll see. Someday we’ll talk about when it’s the stupid answer.
Andrew: [Laughs] Yeah, just being next to a pond is not evidence of negligence so, you know, it is what it is. You mulled between A, C, and D. A, the child because he left the center while he was under the center’s care. Ultimately you rejected that, good rejection. Daycare centers are not strictly liable.
Thomas: Hmm, interesting.
Andrew: That would be a test for strict liability. It would be like “no, he was within”-
Thomas: Yeah, that was what I was trying to say.
Thomas: Okay, I feel like I nailed that analysis.
Thomas: I really was between C and D, I should have for the sake of Second Chance bar exam, I should’ve had the guts to eliminate A but I didn’t have the guts.
Andrew: Well, so then if you’re saying the daycare center is going to prevail the question is does it prevail because it was not negligent which is C, or does it prevail because the child was a trespasser? You went with C and I am pleased to tell you-
Andrew: That is correct!
Andrew: Simple answer, simple analysis. Sometimes simple is best.
Thomas: Wow, it paid off.
Andrew: Yup! D is the incorrect answer.
Thomas: But you could see what I was seeing with D, right? Isn’t there some logic to that answer? What do you think?
Andrew: There absolutely is some logic to that answer because committing a trespass may make you negligent per se.
Thomas: Yeah, that’s what I was thinking.
Andrew: But that’s not what you need to establish in this case. That would then, the contrapositive of that would be, well, if the child wasn’t trespassing-
Thomas: Right, well that’s downstream of the answer C, right?
Andrew: Exactly right. Best way of putting it, I should’ve put it a slightly different way.
Thomas: I should’ve said it that way in the moment, but I’m glad I got the right answer anyway.
Andrew: Yeah! Correct answer and for the right reason!
Andrew: Because even if the child had not been a trespasser that wouldn’t have made the daycare center negligent, you have to resolve that question first. Downstream is not the legal word but it’s such a great way of expressing it that I think it should be! So good job!
Thomas: Alright, I coined a legal word! Awesome!
Andrew: Well, no, I mean you use downstream liability when you’re talking about putting things into commerce.
Thomas: Oh I see.
Andrew: So it comes out a lot in copyright infringement cases, so let’s say I steal someone else’s design and then I sell that on Amazon, can you sue Amazon for copyright infringement? The answer is usually yes even though they are the downstream recipient of the material that violated the copyright. Now, again, there’s a thing for innocent infringers, we’re not doing a deep dive on copyright in this closing T3BE segment.
Thomas: Yeah, what are you doin’? This is T3BE answer, come on Andrew! Get it together.
Andrew: [Laughs] But, anyway, I love it! Yeah, so correct answer for the correct reasons, good job!
Thomas: Yeah, back on the saddle! You know, my strategy has been I’m just gonna try to go with the logical correct answer, it’s not gonna be right every time, but that’s my chance at this bar exam, and tell you what? It’s working now.
Andrew: Love it! Sure is!
Thomas: Didn’t work for like 9 questions in a row, but [Laughs]
Thomas: It’s working for the last few. Alright, well, future Andrew’s gonna hop in his time machine … well, current Andrew’s gonna hop in his time machine and future Andrew will hop into this episode to tell us who this week’s big winner is!
Andrew: Well, Thomas, today’s winner is Terry Cannon on Twitter who not only got the question right but took a shot at you which is my favorite way of getting the question right, who writes: “Thomas got the right answer and he really analyzed it well. But this question is too easy to have actually been on a bar exam. The question tells you the daycare center employees were not negligent and then one of the options is ‘they weren’t negligent.’” Actually, Terry, this is a real bar exam prep question put out by the bar exam company in charge of administering the bar exam. That is the National Conference of Bar Examiners, NCBE, and this is their official manual, Prep for the Multistate Bar Examination, which is what T3BE is all about. So real prep question and, look, there are real bar questions that fit into that pattern. But anyway, congratulations on getting the answer right Terry and congratulations on your shot at Thomas, I appreciated it! Everyone give Terry a follow on Twitter, that is @terrymcannon, all one word, and congratulations for being this week’s winner!
Thomas: Alright, that’s it for today’s show! It was so fun to see everybody at the live show, I’m glad you guys got to hear that as well and we’ll see you on Friday!