Listen to the episode and read the show notes
Topics of Discussion:
- Crackpot Lightening Round
- Andrew Was Wrong about Blagojevich’s Senate Seat
- Yodel Mountain – Impeachment Academics
- T3BE – Question
[Show Intro]
Thomas: Hello and welcome to Opening Arguments, this is episode 339. I am Thomas Smith, that’s Andrew Torrez. How’re you doing Andrew?
Andrew: I am fantastic Thomas, how are you?
Thomas: I’m great! You know, we have so much to talk about today, so many good segments that I’m not even going to mention the fact that I have my 27th consecutive cold in a row.
Andrew: [Laughs]
Thomas: Not even gonna bring it up!
Andrew: Nope!
Thomas: I’m not even gonna-
Andrew: That’s big of you to not-
Thomas: I’m not even gonna take the time to even say that I’m not gonna bring it up, that’s how much I’m not gonna talk about yet another cold that I have from my kids in daycare. Again, not even gonna say! We don’t have time. Andrew, we don’t have time.
Andrew: Yeah, that’s true.
Thomas: We’re out of time, so I’m not talking about it.
Andrew: While I am sympathetic, ‘tis the season, so…
Thomas: I’m not gonna mention how I’m gonna have to be muting constantly this whole time to try to get through it, why would I talk about it? Why would I bring it up? Okay, no, we have a great episode for you guys, I cannot wait. We have a segment that I just now invented called crackpot lightening round.
Andrew: [Laughs]
Thomas: Which I think is great. We’re gonna have a quick Crackpot Lightening Round and a fun – I think these are always fun. The Andrew Was Wrong is my favorite segment because usually you’re wrong about something inconsequential but that’s also interesting and has a funny story, so that’s always fun.
And, wow, we’ve got a lot of impeachment news, don’t we? We’ve got so much to talk about there, some academics, some poindexters came on and told us what we all already knew. Then finally in the what I’ve now dubbed the “wild card segment,” which we’ll see if we get to, whether or not Andrew can get through everything on time because, you know, Andrew’s got a lot to say. He’s got a big brain over there and we all wanna reap the benefits. So wild card segment, fun listener question, we’ll see if we get there. But first!
Crackpot Lightening Round
[Segment Intro]
Thomas: Are you ready, Andrew-
Andrew: Yes.
Thomas: For the quick impromptu segment. You are gonna tells us how, oh I can’t talk about Nunes and I can’t talk about Klayman’s lawsuit against Trayvon Martin ‘cuz we got a billion emails, and I was like well why don’t you just, you know, do a quick Crackpot Lightening Round!
Andrew: [Laughs]
Thomas: You’re saying there’s not much to talk about anyway because these are terrible lawsuits but we don’t know why, we’re not lawyers, we don’t know the quick reasons why these are terrible, so Crackpot Lightening Round – Go!
Andrew: Yeah, okay. Number one, our favorite “hi I’m losing to an imaginary internet cow” representative Devin Nunes from your State has sued CNN for a million-trillion-billion dollars – actually it is $435,350,000. I like the additional 350,000, that’s a-
Thomas: Yeah, yeah.
Andrew: That’s a nice touch. Alleging defamation by putting out a hit piece that exposes his factual ties to crooked Ukrainian politicians.
Thomas: Yeah.
Andrew: This is yet another, in the long – the reason I had this on the “we can’t bother discussing this” is because Devin Nunes is an idiot who files frivolous meritless lawsuits. Someone even asked, and I thought that this question was worth answering, wouldn’t that expose him to discovery? You’re damn right it would!
Thomas: Hmm, yeah.
Andrew: [Laughs] Right? Because remember, of a public official, the standard for defamation, we’ve said it only several hundred times on this show, is the New York Times v. Sullivan actual malice standard. It is then a defense for CNN that the things that they printed about Devin Nunes, the things that they said about Devin Nunes, were accurate or [Laughs] and this is all you need for New York Times standard, is done under ordinary journalistic standards. Not done with actual malice, that is knowing falsity or reckless disregard for the truth.
So in the event that it went forward at all, you would say okay, well we’re gonna serve discovery on you for all of your connections to these Ukrainian prosecutors. Devin Nunes has no intention of turning over that information. [Laughs] Will not turn over that information. So in the even that we ever got to the discovery phase he would refuse to comply with CNN’s reasonable discovery requests and as a result then the court would either order him to turn it over or order him to – or would grant summary judgment in favor of CNN on the defamation counts for Nunes’ failure to cooperate in exploring a valid affirmative defense, namely that the story is true.
So this is a headline-grabbing stunt by somebody who doesn’t seem to understand the difference between notoriety and fame. There you go.
Thomas: I know this is Crackpot Lightening Round, but I have thoughts.
Andrew: Oh good!
Thomas: First off, why the majillion bajillion kajillion dollars? Why not make it a more reasonable – I know he is just a law terrorist, but still, if you were like $200,000, $400,000, something where okay, at least that’s in the realm of plausibility if what you were saying was even true. Even if you stipulated everything he said was true about, you know, they defamed him or whatever. What did you say? $435 zillion million doubloons?
Andrew: [Laughs] $435,350,000.
Thomas: Yeah.
Andrew: The reason is that count one is the defamation count, and it says – this is paragraph 42 on page 44, “As a direct result of CNN’s defamation, Plaintiff suffered presumed damages and actual damages, including, but not limited to, insult, pain, embarrassment, humiliation-
Thomas: [Laughs] There’s a hundred million right there!
Andrew: [Laughs] – mental suffering-
Thomas: Mm-kay, another $100 million.
Andrew: – injury to his reputation, special damages, costs, and other out-of-pocket expenses- [Laughs]
Thomas: I’ve got news for you. Even if we took Nunes’ reputation from the highest it’s ever been or will ever be to absolute zero, that’s worth like maybe $2500 bucks. It’s about … $2700? I dunno, he’s not worth a whole lot is what I’m saying.
Andrew: Well Devin G. Nunes believes that he is owed $435 million dollars in compensatory damages. I’m really, really glad you asked this question, because it’s in the Lightening Round, I was gonna pass over it, but usually when you get eleventy-billion dollars as your demand it’s like a million dollars in compensatory damages-
Thomas: Oh, yeah.
Andrew: -and then $10 billion trillion quadrillion 999 – everything else is punitives.
Thomas: Oh, okay.
Andrew: Nope! This is the reverse!
Thomas: Oh, it is?
Andrew: This is $435 million in compensatory damages.
Thomas: [Laughs] No way! [Laughs] That’s objectively more than he will or would ever make in his lifetime, but he needs to be compensated that ‘cuz someone said a mean thing.
Andrew: It is – look, you don’t have to. The amount of money that you ask for is called the ad damnum clause. Different states have different rules about whether ultimately the jury is bound by the ad damnum clause. Some states say you can’t award more than someone has asked for-
Thomas: That really feels like a term I would make up when I’m trying to think of-
Andrew: [Laughs]
Thomas: The ad … damnum… dammit.
Andrew: You don’t even have to clownhorn! We can say ad damnum ‘til the cows come home!
Thomas: [Laughs]
Andrew: Lawyers know that your demand is more than you actually expect to get. There is no pleading requirement, there’s no uniform pleading requirement that – in federal court which is where this was filed – that requires you at the pleading stage to explain exactly how you’ve calculated it.
Thomas: [Laughs]
Andrew: But I will tell you, it is good practice to explain-
Thomas: To have an Excel spreadsheet, maybe?
Andrew: Yeah, to be like, look, we lost X million in business or whatever.
Thomas: Yeah.
Andrew: Sometimes it’s hard to calculate damages so, you know – [Laughs] Look, I’m trying to steel man Devin Nunes and it’s a challenge!
Thomas: No.
Andrew: Oh and by the way this is the same Earthlink lawyer that Nunes uses for all of his frivolous, idiotic lawsuits.
Thomas: Yeah, that’s the thing, I’m kind of serious about being a law terrorist. If you find a very cheap way to issue completely BS lawsuits then you can kind of make it so it’ll cost your target orders of magnitude more than it costs you, then it’s a decent stunt if you’re an evil person, right?
Andrew: Yeah … yes. Two things are at issue here. The first is that, depending on which state law applies, California has very, very robust anti-SLAPP laws, so you may have anit-SLAPP laws that kick in.
Thomas: Oh, yeah.
Andrew: Because even though this is filed in federal court, you can apply – the federal court is required to apply the substantive state law of where the offense took place. There’s a good argument that that took place, at all, in California, because that’s where Devin Nunes is from, that’s where he’s allegedly suffering this $435 kajillion billion dollars worth of damages. If that happens, anybody who’s listened to our live show with Carry and Matthew knows that California has really robust anti-SLAPP law that will provide for an early dismissal of this lawsuit and will get CNN’s legal fees paid.
Thomas: Huh.
Andrew: So there is some counterweight and that’s the other half, which is fortunately here Nunes is suing CNN and, you know, CNN can pay a lawyer the five-figures at most it’s gonna take.
Thomas: They probably have a staff attorney, right? That can just-
Andrew: Yeah. [Laughs] Yeah, believe me. Look, if CNN’s profits are hurting in the fourth quarter, shoot us an email, openarguments@gmail.com, and I’ll be happy to-
Thomas: No, they’re making a killing off of helping Trump get elected, so they’re doing fine.
Andrew: Well, you know.
Thomas: I wanna say this too, did you hear his answer for – because it came out the other day that there’s phone records tying him to, I don’t know, the Hamburgler? Whoever that guy is, whatever Criminal McBadman that Rudy Giuliani was using and I love it, because his answer – it’s so great! It’s exactly what you would say if you were totally completely innocent! “Ooh, they got phone records? Well that doesn’t sound like me, though. Does that sound like?” [Laughs] He was on a Fox News interview and he was like “do you think I would be a guy who would accept a call from that guy? That doesn’t sound like me!” [Laughs]
Andrew: [Laughs]
Thomas: If somebody’s like hey, Thomas, did you steal Andrew’s bottle of scotch and drink it all in one night? I wouldn’t be like, “well that doesn’t sound like something I would do.” I’d be like “no!” It can either be no or yes. Yes, I proudly did that because we share scotch, what’s a bottle of scotch among friends? Or no! Of course I didn’t steal his bottle of scotch, are you crazy? I like the idea though of oh, doesn’t sound like a crime I would commit. Weird!
Andrew: I couldn’t agree more! [Laughs]
Thomas: That’s what you say when your wife is like “did you happen to leave the door unlocked” or something. You’d be like, ah, hmm-
Andrew: That doesn’t sound like me!
Thomas: I feel like I didn’t but maybe I did?
Andrew: [Laughs]
Thomas: That’s the thing, just an ordinary thing you do or don’t do every day. Anyway.
Andrew: This is a delightful insight, look into the Smith household.
Thomas: Yeah. So anyway, next on our Crackpot Lightening Round, by popular demand, the Larry Klayman lawsuit on behalf of… [Sighs] The whole thing I’m just mad about, completely mad. I don’t even want to. That A-hole that we all remember who killed a guy.
Andrew: Yeah. So since we went slightly long on the first part of this segment, let’s go really, really short here. Larry Klayman is a birther, a racist, an awful human being who uses litigation as stunts and has been multiply disciplined by multiple different courts over the tenure of his legal career for filing frivolous lawsuits and for other misconduct in the practice of law, so it shouldn’t be surprising that a racist monster who thrives off of publicity and owning the libs has decided to file a lawsuit that he knows is going to rile everyone up. It has zero merit, and it wouldn’t surprise me if he were sanctioned.
Thomas: Yeah. Oh, cool, sanctioned, that’ll solve it. That’s done a lot of good so far, all the sanctioning he’s got.
Andrew: Well look, you can have – again, it depends on where you’re admitted, but you can have your bar license suspended or revoked. At some point Larry Klayman’s license to practice law is going to be revoked. We’ll cover that in great depth on the show, how about that?
Thomas: When that happens?
Andrew: Yeah! When that happens.
Thomas: So what you’re saying is as he goes into his nearing 70th year, then maybe he will face some possible chance of not being able to practice law into his 70s if he does like four more of these horrendous disturbing lawsuits. Is that what you’re saying? Good job Bar Association, or whatever.
Andrew: If you wanna argue for stronger standards-
Thomas: Yeah I do.
Andrew: -on making sure Larry Klayman doesn’t practice law, again I will sign onto that.
Thomas: Well that and the guy in Florida – was it Gaetz that we were?
Andrew: Yeah.
Thomas: Yeah, that guy too. Come on, let’s up our standards a little bit, Bar Associations.
Andrew: Yeah, I agree, and look there is a little bit of the sort of thin blue line for lawyers kind of activity going on.
Thomas: [Laughs]
Andrew: I’ve said this here before, the only sure way to make sure you get disbarred is to misuse client funds. That is the one thing that, across all jurisdictions and across all proceedings will definitely get you disbarred. Other stuff that’s way worse, or arguably way worse, doesn’t necessarily rise to that level of the other lawyers who are deciding whether to discipline you or not. You wanna argue that it’s a problem? I don’t know that I want to mount a robust defense of how we go about sanctioning and disciplining lawyers.
Thomas: Alright well the people clamored for that.
Andrew: You should be mad, you should be mad. The Martin family will get pro bono legal assistance and this is just, it’s just designed to make you mad. So, you know, I feel a little bit played that we’re covering it but it is important.
Thomas: Eh, we’re not covering – it’s the Crackpot Lightening Round, we’re done with it.
Andrew: Okay.
Thomas: But we did have literally tendy-billion people emailing and asking about it, so we had to at least address it. We had almost as many people as Nunes has damages in his lawsuits.
Andrew Was Wrong about Blagojevich’s Senate Seat
[Segment Intro]
Thomas: Okay, and now that we’re done with not even the first segment, let’s get to the first segment, Andrew Was Wrong! What were you wrong about this time?
Andrew: Oh boy, so this exactly follows the pattern that you described. I was completely and inexcusably wrong on who Rod Blagojevich appointed to the Senate to fill out the unexpired term of Barrack Obama. In my head, because it makes for such a much better story, I don’t know, I lived through this, but I said – and I think I’ve said it at least twice, that he appointed Bobby Rush, civil rights activist.
Rush is still in congress, he’s in the House of Representatives and in my head Rush is somebody who is just unimpeachably clean. He’s just, on both sides of the aisle (among people who have respect across the aisle) he is universally respected and beloved and there are no allegations against him being anything other than a dedicated public servant since time immemorial. Rush was also the only person ever to defeat Barrack Obama in an election.
Thomas: Hmm.
Andrew: Obama ran for congress in 2000 and Rush defeated him in the primary, so I think the combination of the narrative plus the fact that Rush defeated Obama meant that I spaced on the person that Blagojevich actually appointed, Roland Burris.
Thomas: Voldemort. Oh no, okay.
Andrew: [Laughs] Yeah. And Roland Burris makes a much worse story. Again, just gotta do a mia culpa, Burris was somebody who suggested himself to Blagojevich to be appointed to the seat for whom there was – he filed an affidavit on January 5, 2009 that said prior to being called there was (quote) “not any contact between myself or any representatives with Governor Blagojevich or any of his representatives regarding my appointment to the U.S. Senate” Turned out to be totally false!
Thomas: Hmm.
Andrew: The FBI wiretap of Blagojevich’s phone recorded a November 13th phone call in which Burris called up Blagojevich – called up, excuse me – Rob Blagojevich, Governor Blagojevich’s brother.
Thomas: Oh. That’s a crime family, huh?
Andrew: Yeah. [Laughs] So there’s some ways in which this analogy is getting stronger, right? And said hey, I understand that the governor wanted money and I was (quote) “trying to figure out how to deal with this and still be in the consideration for the appointment. I was willing to personally do something” (end quote) including offering to give the governor a personal check, but – and this is taken from the Wikipedia summary which I think is delightfully dry – (quote) “he realized, however, that such an action might look like he was trying to buy the seat and wanted to find a way to avoid that perception.”
Thomas: [Laughs]
Andrew: So in any event-
Thomas: Hey, I wanna give you money but that might be looked at as a bribe. Is there some way I can give you money in a way that doesn’t look like a bribe and get the seat? Call me back, thanks.
Andrew: [Laughs] Right. Yeah, that’s basically what the message was.
Thomas: No, dude. That’s the crime! What are you talking – no! [Laughs]
Andrew: Yeah. So there was a dispute over seating him that went all the way up to the Illinois Supreme Court and in 2009 Roland Burris was named one of the 15 most corrupt members of congress by our friends over at CREW, the Citizens for Responsibility and Ethics in Washington. So yeah, that’s a big – I really wanted the story to be in my head that Blagojevich appointed a white hat, but no, turns out scumbags appoint other scumbags as it looks like. It doesn’t change the underlying argument in any way whatsoever, which was Blagojevich appointed Burris who went to the Senate. It was an exercise of his gubernatorial powers, didn’t stop it from being a crime.
Thomas: I don’t know the details but I wasn’t sure if it was gonna be one of those things that was like, you know, like with Trump now where once people caught onto this Blagojevich was like “oh no, Mother Theresa. I’m appointing Mother Theresa, it was never anybody who was gonna buy it.” I thought it was gonna be one of those, where once you get caught if you change your mind then it’s not a crime, but no, sounds like it was just crime, all the way down.
Andrew: [Laughs] Yeah, sounds like it was a crime all along, the whole way, yup.
Thomas: [Laughs]
Andrew: So Andrew Was Wrong on that one.
Thomas: Well let’s hope Trump rememb- he didn’t pardon him, right? He was going to but-
Andrew: Correct, yeah Trump did not pardon Blagojevich but-
Thomas: Which of our super villains are still locked away or which has Trump let out, I don’t remember, it’s hard to keep straight. Nobody is safe, we’ll just assume none of us are safe. Well I hope you feel bad about how wrong you were-
Andrew: I do! I do.
Thomas: Everybody dogpile Andrew. Hashtag #AndrewWasWrong.
Andrew: [Laughs]
Thomas: Alright, time for some yodeling at long last. Let’s do some yodeling, Brian!
Yodel Mountain – Impeachment Academics
[Segment Intro]
Thomas: Oh, good, I like the power of calling upon the skies to yodel. So we had some more-
Andrew: Did you see, by the way, the baby Yoda yodel mashup that Brian did? That is just genius.
Thomas: Yes! Everybody check it out, I believe in the Facebook group they should be able to find that.
Andrew: Yup!
Thomas: Good reason to be in the Facebook group, by the way.
Andrew: Yeah.
Thomas: Search, what, just pop into the Facebook and search Yodel Mountain probably?
Andrew: Type “Baby Yodel” is what the title is.
Thomas: I was gonna say just for the group, search Opening Arguments community to get in there.
Andrew: Yeah yeah yeah.
Thomas: Then go through 900,000 posts a day. No, it’s a good point, search Baby Yoda or just find Brian. But that was magnificent, thank you Brian, good work, hope everybody enjoyed that. So we had some academics testify, that was great. We got three academics from the Democrats and then the Republicans found somebody I guess to basically just go up there and be like, yeah, no, the sky is blue everybody. Oh, holy moly! The sky is blue! Is that basically what happened? That’s my summary.
Andrew: Yeah, the academics called by the Democratic representatives uniformly said hey, what we’ve been telling you on this show all along which is hey, bribery is 18 U.S.C. § 201, subsection (b)(2) and by the way, all three of those elements are manifestly met here. The Republicans called upon somebody that may be familiar to a lot of our listeners, certainly someone I know pretty well, George Washington University law professor Jonathan Turley, so we’re gonna break down his testimony.
Thomas: Yeah, apparently the Marianne Williamson of legal scholars? Is that-
Andrew: [Laughs]
Thomas: I’m feeling that – here’s the thing, yes the President did something that’s probably impeachable and all that, however I’m feeling a lot of bad vibes these days. There’s just … stop all the hate, we need to figure out – so therefore don’t impeach because bad vibes. That’s what I got from it.
Andrew: Yeah, look, two things that I wanna say with respect to that. The first is that Turley is a legitimate constitutional law scholar. He’s not a crackpot, he is not a right wing federalist society hack and his arguments had a bit more – there certainly was, maybe we should cover and sort of dispose of the “this would set a bad precedent” argument right now.
I kinda wish Democrats would take up this line in the senate of, we watched Mitch McConnell steal a Supreme Court seat and then turn around and say if the conditions were exactly the same that he wouldn’t – he would appoint a Republican under the exact same conditions under which it was unthinkable to appoint a Democrat.
Thomas: Yeah.
Andrew: So, yeah, we’re not too worried about norm-setting.
Thomas: Yeah, doesn’t matter.
Andrew: Also, the idea that oh, if we don’t impeach Trump then retroactively Republicans would have been totally willing to cooperate with Barrack Obama and definitely wouldn’t have impeached Bill Clinton!
Thomas: Yeah! [Laughs]
Andrew: It’s just nonsense, it’s just silly.
Thomas: Yeah, we’ve got the time machine ready and as soon as you’re nicer to Trump we’ll go back in time and do some stuff differently. Is that the argument? Yeah, also – well sorry if we’re out of order, did you wanna-
Andrew: No, no it’s fine, it’s fine.
Thomas: You’re out of order, I’m out of order. Do you wanna cover Turley now or, or…
Andrew: Yeah, we’ll cover Turley now and then we’ll wrap up the loose ends.
Thomas: Okay.
Andrew: So look, that argument is silly, but as we like to do on this show I wanna steel man what the argument is for the other side and we want to look and see how we can learn from that. So before I steel man I wanna slander Jonathan Turley.
Thomas: [Laughs] Slanderman?
Andrew: Yeah, absolutely, please do not sue me for $435 million billion dollars! [Laughs]
Jonathan Turley’s testimony – this is actually not slander because this is 100% true – (quote) “In a government of laws existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker it breeds contempt for law, it invites every man to become a law unto himself, it invites anarchy. The allegations against the President go to the very heart of the legitimacy of his office and the integrity of the political system.” That was Jonathan Turley’s testimony in 1998 about Bill Clinton.
Thomas: [Laughs] Huh. Interesting.
Andrew: Yeah, a little bit interesting. So, you know, Jonathan Turley is not – in most ways he is not discount Alan Dershowitz and I would be mortified if people started calling him that or, you know, if that-
Thomas: No truly only Dershowitz is discount Dershowitz.
Andrew: [Laughs] By that I mean Alan Dershowitz likes to go on Fox News and say “I’m liberal Alan Dershowitz” even though he hasn’t done anything liberal since Trump has been elected. Jonathan Turley is – again, steel man the other side – I would like to be on CNN and MSNBC, right? I would like to be – I’m a public commentator about the law, so far be it for me to cast aspersions on somebody who likes to have controversial opinions and likes to make them known in public. Good for you, Jonathan Turley, but that’s sort of the lens through which you should understand it. He enjoys being the kind of gadfly that Alan Dershowitz pretends to be – somebody who is genuinely left-ish? He’s not a-
Thomas: I- hmm.
Andrew: -howler monkey conservative.
Thomas: I don’t know that he’s – is he? Well he said he didn’t vote for Trump, right?
Andrew: Correct.
Thomas: But I took that to mean he was a conservative never-Trumper but am I wrong on that?
Andrew: No, I don’t think that’s fair.
Thomas: Huh.
Andrew: I think it’s hard to say, it’s hard to pin down on a 0 to 100 scale, I don’t know if he’s a 35 or a 50 or a 65.
Thomas: Okay.
Andrew: But I know he’s not a 90.
Thomas: Yeah, fair.
Andrew: And most of your never-Trumpers – I mean Bill Crystal is a never-Trumper and he’s a monster, so you know, Jonathan Turley, he’s not somebody you would expect to find in the service of Trump. He is somebody who enjoys having his opinions, his contrarian opinions be out there for public consumption. I think that’s fair, I think he would concede to that if he was listening to this show, and you know, hopefully he is. I know we have a lot of listeners at GW, so maybe they’ll pass it on. Can I gig him on another piece of his Clinton testimony?
Thomas: Ooh, yeah, absolutely!
Andrew: Oh yeah! [Laughs] Because as we’re about to break down his primary argument is “I don’t think that the House has sufficiently made its case that the President has committed bribery.”
But in 1998 Jonathan Turley said the following: “There is a considerable difference between the House refusing to impeach a President over serious conduct and the Senate refusing to remove a President for such conduct. The House decision establishes the expectations of a people in the conduct of the chief executive and serves as a critical deterrent to Presidential misconduct. While the Senate can decide not to remove a President in the interest of the nation for a variety of reasons, the House should not falter in maintaining a bright line for Presidential conduct.”
Thomas: Okay, sorry, how is this guy not a conservative hack? We’ve got him gunning for the impeachment of Bill Clinton but defending Trump, the most corrupt piece of crap President we’ve ever had. What? How is he not a conservative hack? Is this entirely that he wants to just be popular and be on TV?
Andrew: Yeah, I think that’s a much lesser insult to say that you are, you know, attention seeking than to say that you are in bed with Trump.
Thomas: Right.
Andrew: So that’s my effort to defend him.
Thomas: Okay.
Andrew: Now! [Laughs] I do want to point out, ultimately Jonathan Turley’s position boils down to, in a constitution that says the President may be removed (quote) “for treason, bribery, or other high crimes and misdemeanors” (end of quote) that the one crime that’s listed in that list of three things, bribery, is not an impeachable offense, but that perjury over any thing is an impeachable offense.
Thomas: That’s a – hoo.
Andrew: That strikes me as a really, really difficult line to maintain. It’s in his opening statement. So, you know, I’ll let people decide that [Laughs] for themselves, but I do want to walk through his argument. I want to highlight the parts that are potentially … fair? Question mark? And I want to point out how it can be useful in guiding an effective strategy going forward. So I’m gonna link his 53-page opening statement in the show notes, then walk through each of the major segments. Up to page 11 is Turley setting the stage for what I think is a false dichotomy. Here’s the argument. The argument is that at British common law, 13th Century Saxony, anybody could be impeached for anything.
Thomas: [Laughs]
Andrew: Is essentially the argument.
Thomas: Just peasants going around impeaching each other?
Andrew: [Laughs]
Thomas: Ah! I sold you that bundle of sticks and it was insufficient! Or rather I bought a bundle of sticks, it was insufficient, I impeach you! I doth impeach thee, sir!
Andrew: Return to me my ha’penny at once!
Thomas: [Laughs]
Andrew: Yeah, exactly. So the idea is that the founding fathers rejected in place of high crimes and misdemeanors, the word “maladministration.” The idea being if you could just impeach the President because you didn’t like him then-
Thomas: Yeah.
Andrew: -essentially what you have is a parliamentary system.
Thomas: Mm-hmm.
Andrew: You have, the President serves at the pleasure of the congress but no greater than that. That’s true, but the false dichotomy that he sets up is in order to avoid “we can impeach anyone for anything” it must mean we can only impeach you for provable crimes of treason, bribery, or crimes that are as bad as treason or bribery. Now never minding, it’s bribery!
[Laughs] That conclusion doesn’t follow from the premise. You can say the founders clearly wanted some level of gut check, some level of, you know if the President has to commit a crime against the office, that’s what a high crime or misdemeanor means, but the U.S. criminal code didn’t exist at the time, they were enshrining a general principle and they were like yeah, so if the President is committing a crime against the office we can remove him, but we don’t remove him just because we dislike his policies.
That reasonable middle ground is one that Turley sort of forecloses on by virtue of setting up this false dichotomy. On page 12 is where he begins the very worst part of his argument, and this is – again, I’m trying to steel man everything here. Go to page 12, in particular look at footnote 18, I’m going to read that to you and then you’re not even going to need me to fill in the rest of the story.
Thomas: [Laughs]
Andrew: Here’s what Turley says: “The problem is that this is an exceptionally narrow impeachment resting on the thinnest possible evidentiary record. During the House Intelligence Committee proceedings, Democratic leaders indicated that they wanted to proceed exclusively or primarily on Ukrainian allegations and wanted a vote by the end of December. I previously wrote that the current incomplete record is insufficient to sustain an impeachment case,” (no cite for that) “a view recently voiced by the New York Times and other sources.”
The source for that is footnote 18, which is “Editorial, Sondland Has Implicated the President and His Top Men, N.Y. TIMES (Nov. 20, 2019),” and if you’re thinking well that headline doesn’t seem to be support for that piece of evidence-
Thomas: [Laughs]
Andrew: You are dead on. This is grotesque quote mining. Here is word for word, and again, I’m gonna link the New York Times article in the show notes as well, read this for yourself. Here’s what the New York Times said. (Quote) “You know what would help clarify some of these issues? Sworn testimony from the many key players in this scheme who have yet to appear before Congress,” and this is the important part that Turley lies about-
Thomas: Yeah.
Andrew: “Despite the fact that nearly all of them have been subpoenaed: Secretary of State Mike Pompeo; Mick Mulvaney, acting chief of staff; Rick Perry, the energy secretary; the former national security adviser, John Bolton; Attorney General William Barr; John Eisenberg, the National Security Council lawyer; officials from the Office of Management and Budget; and, of course, Mr. Giuliani and his bagmen Lev Parnas and Igor Fruman. While they are at it, Congress could invite Mr. Trump and Vice President Mike Pence to testify.”
So, yeah. The answer to virtually everything Turley says in the state of the record of impeachment is, the state of the record is that way because we have a President who has instructed duly subpoenaed witnesses not to testify on grounds that do not withhold any sort of constitutional muster. These witnesses are losing left and right in the courts, but you know, as we’ve covered on the show even moving expeditiously through the courts would make it impossible if we waited for courts to rule on all of these witnesses we’d be into Trump’s second term.
Thomas: It takes years!
Andrew: Yeah.
Thomas: It takes years.
Andrew: So, yeah. I agree, I’d love for the record to be greater. The reason the record isn’t greater is because Trump is – and this is something Democrats need to emphasize – In an unprecedented way, withholding witnesses and documents at a level not shared by Bill Clinton, not even shared by Richard Nixon. Yes, Richard Nixon held onto the White House tapes, but Richard Nixon did not demand that all of his aides assert a 100% absolute executive privilege.
Richard Nixon did not have complete control over the Department of Justice and an Attorney General – the whole point of the Saturday Night Massacre was that a William Barr-level toady was not the Attorney General at the time that Nixon ordered the special prosecutor fired. Not only to not mention that, but to use a New York Times article criticizing the President for exercising and asserting immunity over duly subpoenaed witnesses as support for the proposition that – and again, Turley’s words, not mine – “a view recently voiced by the New York Times and other sources” (end quote) is deceptive at minimum.
Thomas: Alright.
Andrew: It’s not true.
Thomas: We’ve gotta pause here for a quick break and then more rage at this terrible argumnet! [Laughs]
Andrew: Will do!
[Commercial – cashcallmortgage.com/oa]
Thomas: Yeah, this is driving me crazy because this guy – again, you claim he’s not a conservative hack. [Sighs] It seems hard to believe, but okay, he’s not. He’s certainly willing to disrupt the course of history and to be the lone academic of the four who’s going to say something that Trump supporters use to defend him against impeachment and you know, imagine having the gall to do that and then also on the flimsiest of grounds, which is well, you know, they haven’t interviewed everybody.
Yeah, you know why we haven’t gotten testimony from everybody? Because as you say, Trump has stopped that! So then the message is well, if you wanna impeach somebody they can’t resist. If they resist and stall, augh, I guess we can’t do impeachment because you didn’t get to talk to everybody. Never mind the fact that from day one we had everything. From day one when the call – not even transcripts, not even the full transcript, just the summary or the TELCON or whatever it was. We already had it all there. 100% of the information.
Andrew: The idea – so there was a concept. I think you’ve addressed it on SIO, and it gets used and sometimes misused, the concept of the heckler’s veto in free speech cases. The idea is you take one person who’s disrupting a speech and then if the standard is offense to the recipient then I can block somebody from speaking simply by being obnoxious. Again, used and misused, we don’t need to go down all the ways in which it’s been appropriated by villains.
Turley is suggesting a kind of heckler’s veto for impeachment here, and it’s clear in the position we just described, which is well, if the President obstructs things as much as possible then the record is super thin and you should let it play out in the courts even though that’s gonna take years and maybe the President gets re-elected. I was gonna walk through, because chronologically what he does is compare the Trump impeachment to three historical examples – Andrew Johnson, the near-Nixon impeachment, and Bill Clinton, but I wanna jump ahead to Clinton first because I think it illustrates this heckler’s veto argument – I mean I smacked my forehead when I read this.
This is page 22, Turley says (quote), “With Clinton, there was an act of perjury that even his supporters acknowledged was a felony, leaving them to argue that some felonies (quote) ‘do not rise to the level’ of an impeachment.” (End of quote) [Laughs] So think about the implication of that! I mean honestly, what he’s saying is because Democrats were more honest about evaluating the law than Republicans, that means we can impeach Democrats.
Thomas: [Laughs]
Andrew: Because the only argument that is here is “well, look, some Democrats thought that Bill Clinton had perjured himself.” That’s right, because Bill Clinton had perjured himself. The fact that we don’t have honest Republicans in government is not a feature! That should not be something that is rewarded, that should not give rise to the heckler’s veto over impeachment, but there it is.
Thomas: Yeah, and the constitution doesn’t say “unless nobody admits it on the other side.” So impeach for high crimes and misdemeanors, all that, unless they won’t say that they did it then they’re free to go!
Andrew: Right. In the historical section, because everybody agrees the Andrew Johnson impeachment was a bad thing, he tries to compare the Trump impeachment to the Johnson impeachment. By his own terms it’s a silly comparison because he argues well they were both kind of similarly fast. Not really. This is page 15 to 16, you can go read it for yourself. Andrew Johnson was impeached over removing Secretary of War Edwin M. Stanton. Johnson removed Stanton on February 21, 1868 and was impeached on February 24th, three days later, sent to trial in the Senate on March 4th which was, what, eleven days after that? February’s a 28 day month. So this, just from the beginning of Ukraine, is at 72 days. So I don’t’ think 11 days and two and a half months is really a great analogy. [Laughs]
Thomas: Yeah.
Andrew: So, you know, again I did no additional historical digging on that, Turley puts those numbers in his own argument. So, you know, I guess it’s just up to you. I thought his effort to distinguish Nixon was sort of truly comical so I wanted to read that because [Laughing] I had an internal bet with myself that I couldn’t read this with a straight face so we’ll find out.
(Quote) “The allegations in Nixon began with a felony crime of burglary and swept to encompass an array of other crimes involving political slush funds, payments of hush money, maintenance of an enemies list, directing tax audits of critics, witness intimidation, multiple instances of perjury, and even an alleged kidnapping. Ultimately, there were nearly 70 officials charged and four dozen of them found guilty.” So, yeah, [Sarcastically] nothing like the 30-odd-
Thomas: Yeah.
Andrew: [Laughs]
Thomas: Nobody’s been indicted yet anywhere in the Trump administration.
Andrew: Yeah, his campaign manager was indicted over ties to Ukraine.
Thomas: Yeah.
Andrew: But, you know.
Thomas: This is a joke and this person should be embarrassed and the institution he works at should be embarrassed.
Andrew: Yeah.
Thomas: This is a joke!
Andrew: So that’s sort of the factual, historical record. Then I wanna touch briefly on this because I do think we want to refine our argument a little bit. Because then he makes the case that the record is insufficient to charge Trump with various crimes and I’m not gonna talk about his obstruction of justice, extortion, but on bribery again there’s a kernel of a correct point that he makes.
Thomas: Mm-kay, here goes.
Andrew: Yeah, that is worth emphasizing so we don’t get caught in the trap. That is in citing, as we have on the show, the Bob McDonnell, governor of Virginia, Supreme Court case, that throughout 9-0 what seemed like a pretty clear case of bribery on the part of the governor of Virginia, Bob McDonnell, who he was given rides in fancy cars and his wife was given fur coats in exchange for letting shady businessmen have access to the Virginia legislature.
The Supreme Court made it clear that that section of 18 U.S.C. § 201(b)(2), the quid pro quo part, requires the performance of an official act and just entre is not an official act. That’s true. So Turley’s argument is the postponing cancellation, the refusal to grant an official White House visit to President Zelensky is more akin to an unofficial act than to an official act. Now let me say this: you could certainly argue that it’s not analogous.
There’s a difference between official recognition of a head of state in the White House versus bringing your buddy along to meetings with legislators, but let’s grant, let’s suppose that that argument is correct, then what that means is – and this is why you have heard Adam Schiff talk about the 18th Century definition of bribery as well. It would mean the following – and again, the reason you talk about that is because the impeachment clause says the President may be impeached for treason, bribery, or other high crimes and misdemeanors.
The founding fathers wrote bribery 150 years before they wrote 18 U.S.C. § 201, so you have to look at – again, not going all originalist on anyone here, but you have to look at what bribery meant when they wrote it in the constitution and they obviously didn’t mean something that wouldn’t be written for another 150 years.
The way that breaks down is that the exchanging – the demanding of public announcements about investigations into Joe and Hunter Biden in exchange for the White House visit is very clearly 18th Century bribery even if it’s not 18 U.S.C. § 201 bribery. Withholding duly authorized aid to Ukraine is 18 U.S.C. § 201 bribery.
Thomas: Mm-hmm. [Laughs]
Andrew: So whatever standard you wanna use, 18th Century or modern statutory, the President has committed bribery, but it’s important to parse and to know the distinctions. I will add, Turley also attempts to use McDonnell to say well this means bribery is interpreted super narrowly, that’s not true. That is not what McDonnell stands for. McDonnell stands for the fact that on the quid pro quo – [Laughs] the prid quo pro, there we go!
Thomas: [Laughs]
Andrew: On the quid pro quo part the “quo” must be an official act, but here we have an unambiguous official act and then we have an ambiguous official act. So I think it is important that we acknowledge it.
Thomas: Okay! [Laughs]
Andrew: And Turley does.
Thomas: Hereby acknowledged.
Andrew: Yeah! [Laughs] Turley says, well, holding up the aid seems like it probably is an official act. Note, it definitely is an official act.
Thomas: [Laughs] Yeah.
Andrew: Then he goes into the argument that we’ve said this is all going to come down to, which is: but you don’t have evidence that there’s corrupt intent and, you know, the President can legitimately ask Ukraine about corruption.
Thomas: [Sighs]
Andrew: I know. We’ve covered this a lot but I wanna say a couple of things with respect to this. The first is, in sending out articles of impeachment, adjudicating intent is what the jury does.
Thomas: Hmm.
Andrew: You don’t win on a motion to dismiss by saying “well, we don’t have ironclad proof of intent-
Thomas: Yeah.
Andrew: -in the form of a direct brain scan.
Thomas: You have to go to trial. Figure that out.
Andrew: Right. You go to trial, you listen to the witnesses, and you decide on the circumstantial evidence what you think about the person’s intent. Here the evidence we have is as good as any evidence any prosecutor ever gets as to the mind state of a defendant. If there’s a statute that says whoever corruptly receives and document and I put you on the stand and you say “well I did receive the document but it wasn’t corrupt, I thought I was perfectly entitled to take it,” and I say “thank you, Mr. Smith, so we’re all done here, right?”
Thomas: Case closed!
Andrew: Yeah and then the government gets up to cross examine you and is like, “so, Mr. Smith, isn’t it true that upon receiving the document you opened it and then 14 minutes later deleted the document, removed the hard drive from the computer, threw it to the bottom of a lake, sent out emails to-
Thomas: Did a little evil dance and stroked my chin.
Andrew: Right! Hiding that would be really, really strong evidence-
Thomas: Twirled my mustache.
Andrew: -that you corruptly received the document!
Thomas: Here’s a photo of you twirling your mustache, sir!
Andrew: [Laughs]
Thomas: Dammit, you’re right.
Andrew: Efforts to cover up receiving the document are prima fascia evidence that you knew you had corrupt intent in receiving the document, and prosecutors prove those kinds of cases all the time. Then with respect to the “well he could have sincerely believed that he was asking Ukraine to investigate its corruption” I kind of think-
Thomas: Cool!
Andrew: I wanna try this out on you.
Thomas: Bill Clinton could’ve really thought that he didn’t have relations with that woman.
Andrew: [Laughs]
Thomas: Maybe he did! Infinite charity to the bad people, I guess.
Andrew: So I wanna try this out on you, and again, I wish we had our one Republican listener, Uncle Clarence.
Thomas: Well we’ve got an Uncle Clarence.
Andrew: Yeah, here to answer this question though. But I kind of think it’s worth asking the question of witnesses during the trial in the Senate, which by the way, breaking news today, Nancy Pelosi has instructed the impeachment committees to prepare articles of impeachment, so that will be going forward, we will have a trial in the Senate, and I kind of want to ask those witnesses when they make – because the Senate Republicans will ensure that Tim Morrison is called, that people who are still favorable to the President will testify as to perceived ambiguities.
I really wanna ask them, do you honestly – and obviously I wanna ask Gordan Sondland this, but do you honestly believe that the President had the best interests of the country at heart when he made this request? When he said, “hey, you’re gonna have to do us a favor first before we release your aid.” You honestly believe that was intended to benefit the United States of America?
Thomas: Well we already had Sondland who said, naw – somebody asked who does this benefit, who does this benefit?
Andrew: Yup, yup.
Thomas: And he said I imagine it benefits Trump.
Andrew: Yeah, that was Sean Patrick Maloney from New York who expertly cross-examined Sondland. That was the “Mr. Sondland I respect your candor but I also know exactly what it took to get that out of you.”
Thomas: Yeah.
Andrew: So yeah, and look, again maybe I’m being naïve but I think in a public impeachment with the public watching the actual testimony coming out of the words of the mouths of these individuals, unfiltered by – you know, it’s the same testimony whether you watch it on Fox or whether you watch it on MSNBC.
Thomas: Yeah.
Andrew: I honestly believe watching somebody say “no, I definitely think when he said that you had to make a public announcement on CNN that we were investigating Joe Biden that they were doing that for the good of the country.” If somebody wants to believe that, well god bless ‘em, but hard for me to see that there’s anything there. [Laughs] If I can get one last kick before we leave this segment-
Thomas: Hey, it’s your Wild Card segment that we don’t have time for!
Andrew: Yeah, well we’re gonna lose the Wild Card segment again, but on page 45 in discussing why there are no valid campaign finance charges against the President, which by the way, that is a slam dunk. It probably won’t be part of Articles of Impeachment-
Thomas: Yeah.
Andrew: -because it will seem like it’s-
Thomas: I love that! There are so many obvious, provable crimes that we’re actually having the problem of, like, which thing should we put in the official list of things we’re impeaching this President for? There’s an abundance of them!
Andrew: Yeah.
Thomas: [Sighs] Ah, man. It has been a frustrating, you know… time.
Andrew: It has been, it has been.
Thomas: And it’s just, like, the idea that there’s all this, we’re going through all this trouble, we’re bringing in these academics, three of whom are respectable and deserve to be there, and they’re saying what we all know and we have so many crimes that we can impeach, we know it, we know it all, and then it’s gonna get to the Senate and nothing’s gonna happen and it’s very disappointing and it makes me wonder what’s the point of all this? But we gotta do it because-
Andrew: Yup, yup.
Thomas: -it’s the constitution, says we should do it.
Andrew: So here’s what Turley says about campaign finance violations. He says well, you know, it definitely looks like this was something that would benefit the President, (quote) “However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation. This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a ‘thing of value’ under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors.”
[Laughs] Um, you hear me giggling through that, but the idea that Bill Barr, Trump’s loyalist who omitted the word “not” in multiple instances from his summary of the Mueller report, objectively concluded that his boss did not commit election fraud, it requires a level of naivety that I don’t have that apparently Jonathan Turley does. So we could go on, there’s lots more, but there you go, that was the Republicans witness on why there is legal insufficiency for impeaching the President.
Thomas: I really, really dislike this guy.
Andrew: [Laughs]
Thomas: I don’t know if you caught that-
Andrew: I did manage to catch that!
Thomas: But I would almost rather he be a right wing hack. At least then you could say, well, here’s the key, he thinks we’re murdering 100 million babies a year in abortion and that trumps everything else so he’s gonna keep the right wing guy in power because that’s what he believes and he’s trying to save the babies. At least you could say that. But if this guy truly is liberal, this is just a public laundering of the most corrupt President in history for the sake of getting to say stuff on TV and seeming like you’re cool smart guy. It drives me nuts.
Andrew: I can see that. [Laughs]
Thomas: Alright.
Andrew: I will tell you, in annotating his 53-page opening statement I found myself writing “hey, is OK boomer still a thing?” So there you go! [Laughs]
Thomas: [Laughs] Yes, yes it is!
Andrew: Well if it is you will find yourself cutting and pasting that meme into his testimony which, again, we’re linked in the show notes, don’t take our word for it Uncle Clarence, go read it yourself.
Thomas: Alright, well it is time for happier things, which is First Timer Friday at patreon.com/law. We’re gonna thank our new patrons who made the plunge, joined up, enjoying bonus stuff, Q&A questions, all that stuff. Why don’t you start us off, Andrew?
[Patron Shout Outs]
Thomas: Thank you folks so much for pledging, hope you enjoy all the goodies! Now it’s time for T3BE, Thomas Takes the Bar Exam, pretty sure I’m on one of those second chance doing well, second chance 100% but not getting that actual choice streaks, but we’ll see how today goes.
T3BE – Question
[Segment Intro]
Andrew: Okay Thomas. A plaintiff sued a defendant in federal court for injuries arising out of an accident involving the parties. The plaintiff alleged and presented evidence at trial demonstrating that her injuries had left her legs permanently paralyzed. The jury found in favor of the plaintiff and awarded her $5 million in damages. So she’s ahead of Devin Nunes.
Thomas: [Laughs]
Andrew: Two months after the court entered judgment, the defendant was given a videotape made that day-
Thomas: Oooh!
Andrew: – showing the plaintiff jogging with her doctor.
Thomas: With her doc- [Laughs]
Andrew: [Laughs] This is a great question!
Thomas: Yeah.
Andrew: What is the best way for the defendant to seek relief from the judgment?
Thomas: I love this question! This feels like it’s testing something that we’ve never tested on any bar question.
Andrew: I think that’s right, yeah.
Thomas: Okay, well don’t give me any hints.
Andrew: A) Move for a new trial or in the alternative for remittitur to reduce the award in light of the shortened duration of the plaintiff’s injuries.
Thomas: Hmm.
Andrew: B) Move for relief from the judgment on the ground that the judgment was based on the jury’s mistaken belief that the plaintiff’s injuries would be permanent.
Thomas: Mmm.
Andrew: C) Move for relief from the judgment on the ground that the plaintiff committed a fraud in obtaining damages for permanent injuries.
Thomas: Yikes.
Andrew: Or D) Move for relief from the judgment on the ground that there is newly discovered evidence that the plaintiff’s injuries were not permanent.
Thomas: Okay. I love that this is such a different question than we’ve gotten in the past, I love it. So I’m really glad that none of the answers were “you can’t do it.”
Andrew: [Laughs]
Thomas: ‘Cuz that would’ve made it a lot harder. I mean, it’s still hard because they’re all very similar answers, but I was wondering if this was gonna be the kind of thing where it’s like nope, sorry, once it’s done it’s done.
Andrew: Jared Kushner gets to be White House Chief of Staff, there’s nothing you can do about it.
Thomas: [Laughs] Exactly. I know that sometimes we’ve talked about what goes on in jury deliberations and how that’s kind of a black box and there’s not a whole lot you can do to change that, so I was wondering if it was gonna go along those lines but it sounds like no because we’ve got several answers that are all ways that the defendant can get relief. Let’s go through them. A, move for a new trial or in the alternative for remittititi-
Andrew: Remittitur.
Thomas: What?
Andrew: Remittitur.
Thomas: Okay, but you skip a full four letters if you pronounce it that way.
Andrew: [Laughs]
Thomas: R-E-M – sorry, three letters. R-E-M-I-T-T-I-T-U-R. Just for the record, let the record state that the word is “remit-it-tur” and Andrew is saying “remit-er” or something like that. Okay, cool! You can move for a new trial in the alternative or for Worcestershire sauce to reduce-
Andrew: [Laughs]
Thomas: -the award in light of the shortened duration of the plaintiff’s injuries. So that would be a new trial is answer A. Worcestershire sauce on it. And B, move for relief from judgment on the ground that the judgment was based on the jury’s mistaken belief that the plaintiff’s injuries would be permanent. I mean that’s kind of like a plain language way of just saying what’s happening, which sometimes that’s the right answer. I don’t know though, I’m not totally sure. This is tough. I don’t know that there are any easily eliminable – which Andrew will say is “elible.”
Andrew: Remittitur.
Thomas: [Laughs] C, move for relief from the judgment on the ground that the plaintiff committed a fraud in obtaining damages for permanent injuries. That’s interesting. So ugh, that seems a little more – you know, I’m going to go ahead and eliminate that one. It could be, I could see a universe in which that’s the best way, because the question is what is the best way. Oh, jeez, now I’m gonna talk myself out of it.
Now the last question was super tricky because it was based on, well in some jurisdictions this would be the best way to do this, and maybe we could live in a world – and this is possible – maybe the law is such that you can’t really do anything about this unless someone committed fraud or something and then that’s the only way in which you’d be able to appeal this and change it or something, in which case C would be a great answer so never mind, I’m un-eliminating that and I don’t know, this is an impossible question.
D, move for relief from the judgment on the ground that there is newly discovered evidence that the plaintiff’s injuries were not permanent. Now this is interesting. I really like D for the newly discovered evidence part. That, in every crime show, podcasty whatever, that’s always one of the ways you try to do appeals. In Serial, in Making a Murderer, it’s always like one of the ways you can go is newly discovered evidence, so I really like D for that reason. [Sighs] God this is a really hard question for me.
The only thing is the fact that the evidence is more about the amount of damages than it is about what happened, because if all the facts are the same and this evidence just says okay well maybe they shouldn’t have gotten as much money because they’re not disabled forever, they’re able to walk again or whatever, that makes me wonder about it, because I don’t know. I don’t know enough to know whether that’s gonna factor in. So, hoo! This is tough.
I really like newly discovered evidence because I feel like that’s a thing constantly in appeals. This is impossible! I don’t even think I can eliminate a single answer convincingly in my mind, I mean maybe C. The reason I was going to eliminate C is I was thinking well it could be entirely possible that the plaintiff didn’t know that their leg injuries would heal, maybe oh it was a miracle, angels did it, I don’t know. That’s why I went through that of like maybe it wasn’t fraud, but then will the question be saying doesn’t matter, that’s still the best way to seek relief. So I don’t know. Andrew, I do not – I can’t even eliminate a single answer, so I quit.
Andrew: Wow!
Thomas: Should I get a 4 sided coin? [Laughs] Also known as-
Andrew: Also known as two coins?
Thomas: [Laughs] Yeah, then I have to come up with a matrix of what each combination is? Yeah, jeez. Move for remittitur to reduce the award… reduce the… move for a new trial or in the alternative – that’s interesting, I could see that. We’ve talked about the alternative where you kinda do two possibilities, either let’s do a new trial or some sort of remittitititur to reduce the award. You know, gosh, that’s kind of jumping out at me now.
I kinda like that. B, move for relief from the judgment on the ground the judgment was based on the jury’s mistaken belief… eh, B sounds super plausible but that seems like another way of saying “I disagree with the jury” sort of so I could see that not being a good answer. Apologies, everybody, this is impossible! I’m sure everybody’s just skipping, and that’s fine. Move for relief from the judgment on the ground that committed fraud. Maybe I’ll go with my first instinct and eliminate that one. Ugh, then there’s newly discovered evidence.
Okay, let’s go … For some reason I like the fact that A is the only one that does two things. It’s like either give us a new trial or, in the alternative, go ahead and reduce the award in light of the shortened duration. I don’t know if there’s any basis in reality for this but I like that better because it just feels like a “best” way to seek relief? So I’m gonna go with A for that reason, I have zero confidence in this, this is one of the hardest questions I’ve ever had, can’t wait to hear Andrew break it down on Tuesday’s episode! Cliffhanger, everybody! A is my final answer.
Andrew: Alright! And if you wanna play along with Thomas you know how to do that, just share out this episode on social media, include your answer, your reasons therefore, and the hashtag #T3BE and we will pick a winner and shower that person with never ending fame and fortune! Fame and fortune not guaranteed.
Thomas: Alright, thanks so much for listening everybody, thanks so much for playing along, and most of all to our patrons, patreon.com/law, who make the show happen. I think we’re already comin’ up, maybe in a week or a little more, on another Law’d Awful Movies, Andrew! It’s so much fun, so jump on patreon!
Andrew: [Sighs] We’re gonna have to do a Law’d Awful Christmas movie, maybe?
Thomas: Oooh! That’s a great idea, we’ve done that before and it was a lot of fun! Alright, have a great weekend everybody and we will see you on Tuesday!
[Show Outro]